A Crown Court judge acted unlawfully in ordering an NHS trust to hand over the psychiatric records of a 14 year old girl—without giving her a chance to object—to the man who was accused of sexually abusing her. This was a ruling by two senior judges at the High Court in London last week.
The ruling has widespread implications throughout the criminal justice system, particularly in rape cases. Judges often order doctors to disclose a crime victim's psychiatric records to the defendant's lawyers, who want to use them to undermine the plaintiff's credibility as a witness.
Lord Justice May and Mr Justice Forbes declared that the court breached the girl's right to privacy under the European Convention on Human Rights in ordering disclosure without giving her a say.
Saimo Chahal of Bindman and Partners, the firm of solicitors acting for the girl, who was named only as TB, said: “Her case has implications for all victims and third parties in criminal trials. The court must carry out a balancing exercise between their rights and those of the defendant.”
Judge Paul Glenn, who ordered the disclosure at Stafford Crown Court on 28 November 2005, had been told that the defence case was that TB had a schoolgirl crush and had fantasised the abuse. The judge said that the defendant was a 34 year old man of good character and that his right to a fair trial outweighed confidentiality issues. He ordered disclosure of 23 pages of TB's psychiatric records, showing that she had a history of self harm and suicide attempts.
Two days later the court was told that the official solicitor was now representing TB in connection with a possible breach of her right to privacy.
On 5 December the judge, after holding two more hearings, called TB to court the next morning. The official solicitor was told only at 4 pm, and there was no time to arrange representation for TB.
She took time off school and came to court, where she consented reluctantly to disclosure after being told that otherwise the man's trial, in which she was the main prosecution witness, would be delayed. He was later convicted of sexual activity with a child.
Lord Justice May said he “strongly deprecated” what had happened to the girl, which was “quite unacceptable.” The Crown Court had been “invited to trample on her rights of privacy and confidentiality.”
Solicitor Jill Mason, representing the NHS trust, said: “This is a really important judgment for NHS trusts. The court has affirmed the importance of medical confidentiality and the right for a patient to be heard before medical notes are disclosed. This has been a concern for doctors for many years, especially in psychiatric matters.”
Figure 1.
Lord Justice May said the Crown Court had been “invited to trample on [the girl's] rights of privacy and confidentiality.”
Credit: SCL