In the cause WF  CSOH 27
Article 8 ECHR, the protection of privacy in medical records and access to legal aid to fight disclosure.
KNOWLEDGE BANK – SCOTS LAW TERMINOLOGY
- Haver – a body or person holding documents.
- Commission and diligence – the procedure by which the Court tells a haver to provide to the parties the documents held.
- Petition – an application to the Court for a particular order, such as an order for commission and diligence.
- Recovery – the act of producing the documents held by the haver.
- Reduction – the act of ‘quashing’ a decision
For more Scots law terminology, we recommend this excellent glossary provided by the Judiciary of Scotland: http://www.scotland-judiciary.org.uk/29/0/Glossary/
This judicial review involves an alleged victim of assault and domestic abuse, seeking access to legal aid to resist access to her medical records being ordered in the course of the trial of her alleged abuser. To assist with his defence to these charges, the accused seeks to recover from the NHS and other public bodies medical, psychiatric and psychological records relating to the complainer.
The complainer applied to the Scottish Legal Aid Board (“SLAB”) for legal aid to enable her to be represented to resist the recovery of her medical records, citing her right to respect for her private and family life under Article 8 ECHR. SLAB refused to grant legal aid because there was no provision in the legal aid legislation for legal aid for such proceedings.
Thereafter, the complainer applied to the Scottish Ministers pursuant to section 4(2)(c) of the Legal Aid (Scotland) Act 1986, which gives the Scottish Ministers a discretionary power to direct the grant of legal aid in circumstances not otherwise covered by the rules. That application was also refused. The Scottish Ministers did not consider it appropriate to make a payment out of the Legal Aid Fund, describing in a decision letter their position that:
“the decision-making process in these types of cases enables the views of the complainer to be taken into account sufficiently and for their interest to be protected for the purposes of ECHR, including article 8, without the need for them to participate and be represented at the hearing to determine the matter.”
The Scottish Ministers’ decision not to direct a payment out of the Legal Aid Fund is the focus of this judicial review.
Article 8 ECHR provides that “Everyone has the right to respect for his private and family life, his home and his correspondence”. Medical records are clearly likely to contain very private information about an individual. Lord Glennie, delivering the opinion of the court, noted that the potential disclosure to any third party of the complainer’s medical records doubtlessly engages her Article 8 rights.
The need to take account of the Article 8 rights of someone in the complainer’s position had been recognised in Scotland in the criminal context in cases such as DM v HMA  HCJAC 4. In DM, the Appeal Court approved the carrying out of a balancing exercise, in which the interests of the accused or appellant were balanced with the right of the complainer to respect for her private life under Article 8. This balancing exercise must be carried out in every case where an application is made by an accused person for recovery of sensitive records.
The question arose in the present case as to how the complainer’s rights are to be protected. Must she have the right to appear and argue her case, or are her rights sufficiently protected by other means? That question had not been answered in Scotland.
However, it had been addressed in England and Wales in Stafford Crown Court  1 WLR 1524. In that case, May L.J, giving judgement, referred to Art 8 ECHR:
“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 … the person whose rights are in issue has been involved in the decision-making process … to a degree sufficient to provide them with the requisite protection of their interests.” 
If the person whose medical records are sought has not been so involved, the decision to disclose those records will infringe Article 8. This was an English case and thus not binding in Scotland, though it may be a source of guidance.
Returning to Scotland, this matter is covered by section 301A of the Criminal Procedure (Scotland) Act 1995. That section contains no obligation to give the subject of the records the right to appear to oppose their recovery. Lord Glennie held that while the 1995 Act does not provide any requirement that the complainer be given an opportunity to be heard, she has that right by virtue of Article 8, and the absence of any specific provision in a statute or in court rules cannot take away that right.
In McDonald v HMA 2010 SC (PC) 1, Lord Rodger appeared to describe the principles governing commission and diligence in civil and criminal procedure as being the same. In civil procedure, the other party to the proceeding and any havers are able to argue for rights of confidentiality. To afford the complainer or the haver an opportunity to be heard when documents are sought to be recovered in connection with criminal proceedings, Lord Glennie observed, simply applies the same principle in this different setting.
Lord Glennie concluded, therefore, that any person whose Article 8 rights may be infringed by an order for recovery of sensitive documents must have the opportunity to be heard in opposition to that application before the documents are handed over.
The letter refusing to grant legal aid focused entirely on the question of whether the complainer had a right to be heard in the proceedings for recovery of her medical records. It was appropriate for the court to reduce (quash) the decision, founded as it was on an error of law as to the complainer’s right to be heard. This left the Scottish Ministers to make a new decision about the availability of legal aid on a correct legal basis.
This is the latest in a line of recent case law from both Scotland and England and Wales on the scope of access to legal aid in circumstances where Convention Rights protected by the Human Rights Act 1998 are, or may be, engaged. While the High Court in England and Wales recognised a person’s right to be heard in opposition to disclosure of medical records in Stafford Crown Court, the issue of eligibility for legal aid to exercise that right was considered in M v Director of Legal Aid Casework  EWHC 1354 (Admin).