19.44R (S) v Plymouth CC [2002] EWCA Civ 388, (2002) 5 CCLR 251
Fairness required disclosure of the son’s mental health records to his mother, in nearest relative displacement proceedings
Facts: C suffered from a mental disorder and mental impairment. His mother, who was his nearest relative, opposed his being made subject to a guardianship order but, despite requests by her, she had not been shown the material on which that proposed application would be based, on the ground that it was confidential and C lacked capacity to consent to its disclosure to his mother.
Judgment: the Court of Appeal (Kennedy (dissenting in part), Clarke and Hale LJJ) held that such material would have to be disclosed in any proceedings to displace the nearest relative and that such proceedings were likely if the mother continued to object. For that reason, and because of the importance under the ECHR of involving the mother, disclosure would be ordered – not just to the mother’s lawyers and expert, but also (Kennedy LJ dissenting) to the mother personally. Hale LJ said this:
48. Hence both the common law and the Convention require that a balance be struck between the various interests involved. These are the confidentiality of the information sought; the proper administration of justice; the mother’s right of access to legal advice to enable her to decide whether or not to exercise a right which is likely to lead to legal proceedings against her if she does so; the rights of both C and his mother to respect for their family life and adequate involvement in decision-making processes about it; C’s right to respect for his private life; and the protection of C’s health and welfare. In some cases there might also be an interest in the protection of other people, but that has not been seriously suggested here.
49. C’s interest in protecting the confidentiality of personal information about himself must not be underestimated. It is all too easy for professionals and parents to regard children and incapacitated adults as having no independent interests of their own: as objects rather than subjects. But we are not concerned here with the publication of information to the whole wide world. There is a clear distinction between disclosure to the media with a view to publication to all and sundry and disclosure in confidence to those with a proper interest in having the information in question. We are concerned here only with the latter. The issue is only whether the circle should be widened from those professionals with whom this information has already been shared (possibly without much conscious thought being given to the balance of interests involved) to include the person who is probably closest to him in fact as well as in law and who has a statutory role in his future and to those professionally advising her. C also has an interest in having his own wishes and feelings respected. It would be different in this case if he had the capacity to give or withhold consent to the disclosure: any objection from him would have to be weighed in the balance against the other interests, although as W v Egdell [1990] Ch 359 shows, it would not be decisive. C also has an interest in being protected from a risk of harm to his health or welfare which would stem from disclosure; but it is important not to confuse a possible risk of harm to his health or welfare from being discharged from guardianship with a possible risk of harm from disclosing the information sought. As In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 shows, he also has an interest in decisions about his future being properly informed.
50. That balance would not lead in every case to the disclosure of all the information a relative might possibly want, still less to a fishing exercise amongst the local authority’s files. But in most cases it would lead to the disclosure of the basic statutory guardianship documentation. In this case it must also lead to the particular disclosure sought. There is no suggestion that C has any objection to his mother and her advisers being properly informed about his health and welfare. There is no suggestion of any risk to his health and welfare arising from this. The mother and her advisers have sought access to the information which her own psychiatric and social work experts need in order properly to advise her. That limits both the context and the content of disclosure in a way which strikes a proper balance between the competing interests.