W (APUM) -v- Watters Anor
Neutral citation:(2008) IEHC 462
High Court
Judgment was delivered by Mr Justice Michael Peart on November 25th, 2008.
Judgment
Where a patient who has been detained involuntarily under the Mental Health Act 2001, and who lacks the capacity to instruct a solicitor and to give written consent to the release of his or her medical records, the release of those records to the legal representative is necessary to protect the interests of the patient and is not a contravention of any duty of confidentiality owed to the patient by the hospital or the psychiatrist.
Background
The applicant in this case, a 70-year-old woman suffering from early-onset Alzheimer’s disease, was detained involuntarily at St Senan’s Psychiatric Hospital, of which Dr Liam Watters was the clinical director.
Under the Mental Health Act 2001, the applicant was entitled to have the admission order reviewed by a mental health tribunal within 21 days. The Mental Health Commission, once informed of the making of the admission order, is required to carry out certain procedures, among them to assign a legal representative to represent the patient concerned. In this case the commission informed Finbarr Phelan, solicitor, that he had been appointed.
He visited the hospital to interview the applicant and review her medical records, but due to her incapacity, she could not give her written consent to access her records. He stated she did not have the capacity to consent or to instruct him for the purposes of the review hearing and that he needed to inspect these records ahead of the review hearing.
Dr Watters said none of the hospital employees had authority in law to grant access to patients’ notes without written consent from the patient and he would have to wait until the tribunal sat to get the notes. If he needed time to review them he could seek an adjournment of the tribunal hearing.
Mr Phelan said in his affidavit that it was not desirable that a legal practitioner was required to attend a scheduled hearing of the mental health tribunal in the hope that an application for an adjournment to allow him to inspect the medical records would be granted. He believed this infringed the patient’s fundamental rights, as he could not fully and properly represent his client at the review hearing.
He noted that the independent consultant psychiatrist appointed by the Mental Health Commission could get access to those records, and he, Mr Phelan, would be at a disadvantage vis-à-vis the psychiatrist. While some time may be given at the hearing to study the records, this was wholly inadequate for a proper representation of the patient, and an adjournment was therefore regularly inevitable.
He sought a declaration that the refusal and failure to grant access to the applicant’s medical record was in breach of her constitutional rights and her rights under the European Convention on Human Rights and Fundamental Freedoms.
The hospital pleaded that the Act did not make provision for the disclosure of medical records held relating to patients who lacked capacity to consent to such disclosure, and in the absence of this, it could not disclose them. Dr Watters pointed out that the Act did make provision for the release of such records to the independent psychiatrist.
There were two options available to the legal representative: to attend the tribunal and at the outset apply for access to records and then apply for a short deferral to read them; or where the file was voluminous, to attend the tribunal, seek the records and seek an adjournment to study them.
He pointed to the current edition of the Medical Council’s Guide to Ethical Conduct and Behaviour, which states that a doctor must not disclose information to any person without consent of the patient. The exceptions are where ordered by a judge, where necessary to protect interests of the patient or of society and, where necessary, to safeguard the welfare of another individual or patient.
The Mental Health Commission said that it very much saw the benefit of releasing the records at an early stage.
David Kennedy SC, for the applicant, said that in these circumstances, the professional relationship of the legal representative with the patient was different to the normal solicitor/client relationship, given the vulnerability of the patient. In a case such as this, the legal representative stands in the shoes of the patient.
An adjournment would inevitably lead to delay and could lead to a person being detained for longer than if the adjournment had not been required.
Barrister Barry O’Donnell, for the hospital and the HSE, said that if the Oireachtas intended to permit legal representatives to have access to medical records in such circumstances, it would have said so in the Act.
Barrister Cian Ferriter, for the Mental Health Commission, said the Medical Council guidelines permitted an exception to the confidentiality rule “when necessary in the interests of the patient” and it was clearly in the interests of the patient that the legal representative should have early access to medical records.
Decision
Mr Justice Peart said each respondent agreed that it was in the best interests of the patient that his or legal representative had access to medical records as early as possible, the issue being at what point in time. The best interests of the patient were clearly at the forefront of the provisions of the Act.
The right to legal representation was not stated to be limited in any way by being confined to legal representation at the tribunal – it was an entitlement “to legal representation”. The Act was silent as to the date on which that right was to begin.
The court must see the role of the legal representative as being one whereby he or she both advises the patient, insofar as possible, and acts as an advocate at the tribunal. The paternalistic nature of the statutory scheme meant that the legal representative’s role was to protect all the patient’s interests and this necessitated the availability of the client’s file.
Mr Justice Peart said he did not agree with the restrictive interpretation of the Medical Council guidelines put forward by the respondent. He had no difficulty in declaring that the disclosure of a patient’s medical records to his or her legal representative, where the patient lacked the capacity to consent to such disclosure, was necessary to protect the interests of the patient and did not contravene the duty of confidentiality.
He made this declaration in substitution of the specific declarations sought.
The full judgment is on www.courts.ie
R. David Kennedy SC and Dermot Cahill BL, instructed by Niall J Walsh, Carrick-on-Suir, for the applicant; Barry O’Donnell BL, instructed by Ensor O’Connor, Enniscorthy, for the HSE and the hospital; Cian Ferriter BL, instructed by Arthur Cox, for the Mental Health Commission.