In the recent case Dixon v North Bristol NHS Trust  (“Dixon”), the Court held that where there are strong public policy reasons for disclosure, this is likely to outweigh any duty of confidentiality owed to a party who objects to that disclosure.
In this case, the court considered the Claimant’s application for an interim injunction to stop the Defendant from disclosing two documents to patients of the Claimant.
The Claimant was employed by the Defendant, an NHS Trust, as a general, laparoscopic and colorectal surgeon until the termination of his employment in June 2019. During 2007 to 2017, the Claimant carried out laparoscopic ventral mesh rectopexy (“LVMR”) procedures and numerous patients later complained of complications, including pain and incontinence. As a result of these complaints, the Defendant launched a formal investigation in May 2017. The Defendant concluded that 203 women who had a LVMR procedure by the Claimant had been harmed. The Defendant stated:
‘although their LVMR operation was carried out satisfactorily, they should have been offered alternative treatments before proceeding to surgery. We have defined these patients as suffering ‘harm’ as a result’.
This case attracted significant media attention, and the court referred to an article by The Guardian which set out the background details of the case.
During its investigations, and in order to comply with its duty of candour, the Defendant informed the patients who had experienced complications, and also the patients who the Defendant believed could have been affected, that an investigation had been instigated.
The Defendant informed the Claimant’s solicitor that it intended on disclosing ‘Document X’ and relevant Maintaining High Professional Standards (“MHPS”) documents (“Proposed Disclosure”) to the patients taking or threatening legal proceedings against the Defendant because they were potentially relevant to the claims. The Defendant believed these documents were disclosable in accordance with CPR 31.6 and were not covered by legal advice privilege, litigation privilege or public interest immunity.
The Claimant’s solicitors objected to the Proposed Disclosure and subsequently sought an interim injunction to stop the Defendant from making the Proposed Disclosure.
The Claimant alleged that the Proposed Disclosure would amount to:
- a) a breach of his contract of employment;
- b) a breach of confidence;
- c) a misuse of private information; and
- d) a breach of the Data Protection Act 2018 and/or the General Data Protection Regulation (“GDPR”).
The Claimant also claimed the proposed disclosure would constitute a breach of his Article 8 rights. For the purposes of this article, only breach of confidence will be explored. Further information can be found here: Dixon v North Bristol NHS Trust  EWHC 3127 (KB) (“Dixon”).
The Defendant admitted that it owed the Claimant a duty of confidentiality and that the Proposed Disclosure was confidential. However, the Defendant argued that the duty of confidentiality was not absolute and could be outweighed if deemed necessary. The Defendant stated:
“The duty of confidence owed to the Claimant in respect of the relevant information may be overridden by a countervailing public interest which the Defendant reasonably considers requires such disclosure to third parties”.
The Court confirmed that even if a duty of confidence is established, it can be negated if disclosure is in the public interest. The Court highlighted the case of W-v-Edgell  Ch 359, 419-420 (“Edgell”), where Bingham LJ explained:
‘The law recognises an important public interest in maintaining professional duties of confidence; but… the law treats such duties not as absolute but as liable to be overridden where there is held to be a stronger public interest in disclosure’.
In Edgell, Bingham LJ referred Lord Goff of Chieveley’s ‘Spycatcher‘ speech, whereby he stated that:
…although the basis of the law’s protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply, as the learned judge pointed out, to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.
The Court also noted that the Defendant had obligations that could require the disclosure of confidential information to patients to protect patient safety and to comply with its duty of candour under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
The Court held that whilst the Claimant could likely show that some of the information within the Proposed Disclosure was confidential and would cause some sort of detriment to him if disclosed, a balancing exercise must be carried out to determine whether the duty of confidentiality owed to the Claimant was outweighed by other considerations, such as the wider public interest. In this case, the balancing exercise involves assessing the amount of detriment to the Claimant caused by the Proposed Disclosure against the countervailing interests of the Defendant and also to those who the Proposed Disclosure would be made. The Court accepted that the Defendant had legitimate reasons for providing the Proposed Disclosure and would likely be able to establish that it was in fact under a duty to make the Proposed Disclosure.
Although the Claimant could establish an interest of confidentiality, the Proposed Disclosure related to a small number of identified individuals who all had a clear and significant interest in getting the Proposed Disclosure. The Court held that these interests would likely outweigh the duty of confidentiality owed to the Claimant by the Defendant. The duty of candour reinforces the significance of the public interest in disclosure.
The court stated that:
‘A prohibition on the Proposed Disclosure would be a significant and direct interference not only with the Defendant’s ability to comply with the Duty of Candour but also its wider interests of acting appropriately and responsibly in the discharge of what it believes to be its obligations to former patients whom it believes may have suffered harm because of the actions of the Claimant’.
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