Increasingly Trusts are receiving requests to disclose records for the purpose of prosecuting or defending criminal cases.  An understanding of the law in these cases is essential to ensure the Trust maintains patient confidentiality where necessary, but at the same time ensuring that the authorities are not accused of obstructing the legal process.   There are a number of legal issues to consider and this article sets out the most common.

Disclosure under the Data Protection Act 1998 (DPA)

Normally Trusts would not consider releasing records to third parties without the consent of the patient.  If a request for records is received from a third party such as the police, it may still be possible to obtain the consent of the patient, unless to do so would prejudice any ongoing investigation.  If such a request for records is received from the police or Crown Prosecution Service (CPS) it is important to consider whether consent of the patient is required to release the records.  On such occasions, you should contact the police or CPS to ask whether they are of the view that consent should not be obtained, and if so, why.  It is then for the Trust to consider whether they should release the records in the absence of consent if necessary.

To assist Trusts in making such decisions the police will often provide a form under Section 29 of the DPA requesting copies of certain records and setting out their reasons why these should be provided to them in the absence of the consent of the patient.  It is vital that Trusts review these forms in detail, as the form should set out clearly why the records are required, enabling the Trust as the Data Controller of the records to decide whether to disclose them.  Section 29 of the DPA allows for disclosure to be made without consent for the purposes of the prevention and detection of crime, apprehension or prosecution of offenders, or assessment or collection of taxes and duties.  It is essential that any requests under this section show that there would be prejudice to such purposes if the information is not disclosed. 

Court Orders for Disclosure of Records

Trusts can receive requests for copies of medical records when criminal proceedings are ongoing.  Court Orders may be received where the police / CPS, or solicitors representing defendants, apply to the court for an Order that records be surrendered or that witnesses attend court with medical records.  The fact that patients are not asked to consent to the release of their records in such cases is central to the problem.

The case of TB (R (On the Application of TB) v Stafford Crown Court (2006)) highlights the issue for Trusts and is worth considering in some detail.  TB (a 13 year old girl) was the victim of sexual abuse and the main prosecution witness in the trial of her abuser.  TB had received psychiatric treatment after her abuse and the Defendant’s solicitor obtained an Order that TB’s relevant medical records be disclosed to them to enable them to find ways to question her credibility as a witness.  As the Data Controller of the psychiatric records, the Order was then served on the Trust treating TB.  The Order was not served on TB herself.

The Trust disclosed the records in accordance with the Order but then contacted the Official Solicitor who asked the judge to set out his reasons for allowing the application for the records to go ahead.  The judge was concerned that this would delay the ongoing trial and called TB to the court urgently to ask her views on disclosure of her records.  TB was not represented at that hearing and reluctantly agreed to the disclosure of her medical records.

TB then sought judicial review by the High Court of the decision of the judge to disclose her records to the Defendant without consulting appropriately with her first.  The High Court held that the Crown Court had acted unlawfully by disclosing the records in a way that breached TB’s Human Rights.  TB should have been given the notice of the application by the Defendant for the records, and should also have been given the opportunity to make representations.  This was particularly the case in relation to psychiatric records.

Trusts must ensure they scrutinise all requests for medical records they receive, especially if they are accompanied with what may, on first glance, appear to be a clear and valid Order of the court for their release.  If Trusts are unsure whether a court Order has been served on the patient, they should contact the court as a matter of urgency and the patient as well, unless to do so would result in harm to them.

Requests for Records where Criminal Proceedings are Ongoing and a Consent Form signed by the Patient is Provided.

On occasions, Trusts may receive a consent form from the police which has been signed by a patient, requesting copies of their medical records.  This is often the case where the patient is a victim to a crime and the perpetrator is being prosecuted.
Patients are often very willing to disclose their records to the police if they think this will assist them to apprehend a perpetrator and bring him/her to trial.  However, it is often the case that such patients are not fully aware of what will happen to their records beyond the police using them to investigate any crime.   It is vital that Trusts check that patients fully understand the implications of consenting to disclosure of their records to the police and CPS.  If such records are considered relevant and material to the ongoing investigation they may need to be disclosed to the defendant and form the basis of any cross examination in court.

If the patient is fully informed of the potential use of their records once disclosed, this is acceptable as the patient has given clear, informed consent to disclosure.  If the patient does not wish their records to be disclosed they can withdraw their consent at any time leading up to the disclosure as part of the trial, even if they have signed a consent form.  If a patient lacks capacity to make a decision regarding disclosure of their records in criminal proceedings and the Trust receives a request for them from the police or a defendant, the Trust must consider whether disclosure is in that patient’s best interests and may wish to get additional legal advice.

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