R (TB) v The Combined Court At Stafford [2006] EWHC 1645 (Admin)
Witness summons: Where the psychiatric medical records of a child witness at a trial for a man accused of sexually assault were the subject of a witness summons, the court concluded that, although Article 8 contains no explicit procedural requirements, the court will have regard to the decision making process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Article 8. The process must be such as to secure that the views of those whose rights are in issue are made known and duly taken account of. What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the person whose rights are in issue has been involved in the decision making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will be a failure to respect their family life and privacy and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8.
The court rejected the suggestion that it would have been sufficient for the interest of the patient to be represented only by the NHS Trust. The confidence is hers, not theirs. Their interests are different. They have a wider public interest in patient confidentiality generally and may have particular interests relating to her care which could conflict with hers. The Trust should be able to advance these wider public interest submissions against disclosure without having the role cast on it of acting also as an advocate for the patient’s confidentiality.
The burden of protecting the patient’s privacy resides with the court and the patient was entitled to notice and proper opportunity for representation.