Abstract
This was the Claimant's appeal against the order of District Judge Rogers, compelling him to disclose copies of his NSPCC records.
The background to this application was a claim for clinical negligence against the Trust involving Erb's Palsy, resulting in a flail left arm, arising during the course of the Claimant's delivery on 22 March 1999. On 12 November 2004, the Court made an order permitting CB to receive 75% of the full liability damages.
Quantum investigations proved protracted. This was especially the case in relation to the psychological dysfunction which, CB alleged, he had suffered. On 12 August 2009, District Judge Rogers gave permission to each party to call evidence from a child psychologist.
On 16 June 2010, CB's advisers applied for permission to rely on a report from an educational psychologist. This was granted, but that report was delayed.
CB's advisers then made it known that he was being seen by a psychologist under the auspices of the NSPCC. The Defendants applied for access to this psychologist's notes, and that application resulted ultimately in the present hearing.
Counsel for CB stated that a complicating psychological factor in the case was the breakdown of the marriage of CB's parents, following which allegations of abuse emerged. Those factors appeared to have exacerbated the psychological symptoms associated with CB's disability. The Schedule was silent on what effect any alleged paternal abuse might have had on CB's psychological wellbeing.
The NSPCC therapist, Annette Clarke, acted as a counsellor to CB but there was a question as to whether she was engaged in the administration of any kind of therapy. Dr Byard, the Claimant's educational psychologist, felt able to deliver her report without recourse to the NSPCC notes, although she was aware of the sessions having taken place. The NSPCC had a firm policy of refusing to release such records in any event. They were concerned that, if Ms Clarke's records were divulged, she would in effect be breaking her promise to CB that the information he had conveyed to her would be treated as strictly confidential.
NSPCC made the point that CB did not wish for disclosure to take place, and neither did his mother and litigation friend.
The Defendants argued that these documents were not privileged. That was plainly correct, in the judge's view. On the face of things, therefore, District Judge Rogers’ ruling was right. However, in the present appeal, issues arising under the Data Protection Act and Public Interest Immunity (PII) were aired and required consideration.
On behalf of CB it was argued that the data in question constituted ‘sensitive personal data’ under Section 2 (e) and that it was likely to contain references to other family members. Schedule 3 of the Act required the data subject to give explicit consent for any such data to be held or processed by the data controller. The Act did not prevent a person under 18 years from exercising rights as a data subject.
The Data Protection (Subject Access Modification) (Health) Order 2000 provided well defined, if limited, restriction to such access by the data subject. This permitted an exemption from Section 7 of the main Act if disclosure ‘would be likely to cause serious harm to the physical or mental health condition of the data subject or any other person’. This exemption was only available if a ‘health professional’, charged with the clinical care of the data subject, stated that access to the data was likely to cause such serious harm to the data subject. Ms Clarke was plainly such a ‘health professional’.
Her notes clearly demonstrated that the purpose of her intervention was to help CB talk through and come to terms with his emotional traumas at the hands of his father. However, there was no suggestion that CB's psychological health, in the context of his mental well-being, might realistically suffer or deteriorate in the event of disclosure.
Held: Subject to any argument of Public Interest Immunity or the general exercise of the Court's discretion, the NSPCC records were disclosable.
Turning to Public Interest Immunity, in D v NSPCC [1978] AC 171, it was held that informants of child neglect or ill-treatment were in a position analogous to that of a police informant, and an important public interest was served by preserving anonymity. However, a balancing exercise had been developed for the party who seeks disclosure of sensitive documents to establish that the need to produce the documents as part of the Court's process outweighs the public interest in keeping them undisclosed.
It would be wrong to see the case as primarily about the need to protect sources for the NSPCC. Indeed, given that documents of this kind had never been granted privilege at Common Law in their own right, the court would be reluctant to extend PII to cover this sort of process. Accordingly, if the matter had been brought before the court on a PII application, it would have been refused. NSPCC's argument as to the protection of its sources was tenuous. It was clear to the child and his parent that disclosure of the details of what may be elicited in the course of the sessions would be released to either the local authority or the police, if child protection issues were raised. Therefore, there was never going to be complete, but only conditional confidentiality.
Held: Ultimately, this case boiled down to the exercise of judicial discretion. The arguments were well balanced. However, it was wholly unrealistic to suppose that the court would be able to get to grips with this issue fairly absent the NSPCC records. The claim for future loss of earnings was significant, and resolution of that issue in the absence of the NSPCC records would be very difficult. Accordingly, the Court would exercise its discretion in favour of disclosure.
Nigel Godsmark QC (instructed by Simpson Millar) appeared for CB. Charles Feeny (instructed by Hill Dickinson) appeared for the Trust. Robert Rees (instructed by NSPCC) appeared for the NSPCC.
Comment
This was a most unusual application. As the judge said, the arguments were very finely balanced. Clearly any records of therapy sessions occurring in the wake of allegations of parental abuse are likely to be highly sensitive. However, given that the Claimant was alleging, in the context of his clinical negligence claim, that he was suffering from psychological problems which would lead to future loss of earnings, it was critical that the respective effects of the Erb's palsy on the one hand, and the alleged abuse on the other, were distinguished as far as practicable. Consequently, the ruling of the judge is a sound one, although it cannot have been an easy decision to reach.