The Court of Appeal last week gave judgment in R (on the application of TA) v North East London NHS Trust (not yet reported or publicly available). The case is an interesting illustration of (a) the Data Protection Act 1998 being used as a ‘shield’ in an application for judicial review, and (b) the vital importance of patient consent in the use of medical records.

TA was engaged in family court proceedings with his ex-wife concerning custody of their children. Part of her evidence in support of her suitability to care for the children was the report of a psychiatrist at the defendant NHS Trust. According to that report, TA’s ex-wife did not suffer from a mental health disorder. TA complained to the Trust about this report. It refused to investigate the refusal because to do so would require it to access his ex-wife’s medical records. She had refused her consent to that access, and the Trust’s position was therefore that it could not investigate TA’s complaint without breaching the data protection principles in its processing of his ex-wife’s (sensitive) personal data. TA’s application for judicial review of the Trust’s refusal failed. So too did his appeal to the Court of Appeal.

Robin Hopkins