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Family Law

The leading authority on all aspects of family law

05 OCT 2015

Re C (A Child) (Application by Dr X and Y) [2015] EWFC 79

Re C (A Child) (Application by Dr X and Y) [2015] EWFC 79
(Family Court, Sir James Munby, the President of the Family Division, 29 September 2015)

 Disclosure – Family proceedings – Complaints against psychiatrist – Psychiatrist sought disclosure of documents from family proceedings
Please see attache file below for the full judgment.

 The application by a psychiatrist for disclosure of documents from family proceedings was refused.

 During care proceedings a psychiatrist was ordered to asses the mother at a privately-run clinic. A report was prepared by the psychiatrist who was also acting as the mother's treating clinician having prescribed medication occasionally.

 The mother subsequently reported the psychiatrist to the General Medical Council and he was brought before a fitness to practice panel. The psychiatrist sought disclosure of 46 documents from the care proceedings including psychological and psychiatric reports in respect of the mother. The mother had made allegations to the press which he submitted were false and had damaged his reputation.

 Disclosure was sought by the psychiatrist and his colleague so that they could discuss openly their experiences in family proceedings. They submitted that they wanted the material available should anyone question the veracity of any statement made by them and to confirm what had been said by others. The documents would never be shown or given to a party; instead, they would offer redacted quotes from the original source documents.

 The legal obligation to preserve patient confidentiality was enforced by the courts and was mirrored by a corresponding obligation enforced by the GMC. The duty extended beyond the termination of the professional relationship. There were qualifications to that duty such as where the interests of either party required disclosure. However, the GMC guidance stipulated that a doctor could not be relieved of his duty of patient confidentiality just because a criticism had been made against him in the press.

 In applications for disclosure such as this a balance had to be performed between the competing claims of the doctor and the patient. Any invasion of the patient's confidentiality had to be proportionate to the legitimate demands of the doctor. Pursuant to Art 8 of the European Convention the protection of medical data was a fundamental right. Respecting the confidentiality of health data was a vital principle of any legal system and was crucial to respect the patient's sense of privacy and to preserve confidence in the medical profession and health services generally. If there was to be disclosure without a patient's consent there had to be effective and adequate safeguards against abuse.

 Furthermore, family court documents were subject to restrictions under s 12 of the Administration of Justice Act 1960. In exercising its jurisdiction the court had to consider the various rights protected under the European Convention and perform the ultimate balancing test reflecting the criteria of necessity and proportionality.

 In this case the balance clearly fell against disclosure. It would constitute a massive and wholly unjustifiable breach of confidentiality which was impossible to justify by any asserted public interest. The remedy sought was wholly disproportionate to anything which the psychiatrist could legitimately or reasonably demand, it went far beyond what the law permitted and conflicted with the GMC guidelines. Even anonymisation or redaction was not capable of overcoming those obstacles.

 The application was refused.
  Case No: SQ14C00002
 Neutral Citation Number: [2015] EWFC 79

 Sitting at the Royal Courts of Justice

 Royal Courts of Justice

 Date: 29 September 2015

Before :


 - - - - - - - - - - - - - - - - - - - - -

 In the Matter of C (A Child) (Application by Dr X and Y)

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 Miss Claire Wills-Goldingham QC (instructed through direct access) for the applicants (Dr X and Y)  Mr Matthew Haynes (instructed by The Smith Partnership) for C’s children’s guardian
 Mr Nicholas Bowen QC and Mr Jonathan Price (instructed by Farleys Solicitors LLP) for C’s mother
 Miss Heather Emmerson (instructed by Lettie Smythers) for the General Medical Council
 Mr Alistair MacDonald QC and Mr Stephen Abberley (instructed by the local authority) for the local authority

 Hearing date: 13 November 2014

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 Re C (A Child) (Application by Dr X and Y) [2015] EWFC 79 


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