In the Matter of C (A Child)

I have before me an unusual application. The fact that it is unusual, indeed virtually unprecedented, is telling, given the very extensive litigation there has been in this area of the law over the last thirty years or so.

The background can be stated very shortly.

Dr X, as I shall refer to him, is a psychiatrist. Together with his colleague, Y, he runs a private clinic which I shall refer to as the Clinic.

In 2007, the local authority started care proceedings in relation to a child who I shall refer to as C. During the course of those proceedings, the court directed that C and C’s mother should be assessed at the Clinic. In due course, Dr X produced a report for the court. It is important to note that Dr X was not merely instructed as an expert witness; he was also, while she was at the Clinic, the mother’s treating physician, prescribing her drugs from time to time. For the purpose of the care proceedings the court also obtained an expert report from another psychiatrist, who I shall refer to as Dr Z.

C’s mother was very critical of the care she had received from Dr X at the Clinic. She reported him to the General Medical Council (GMC). In due course – apparently more than five years later – the case was heard by a Fitness to Practise Panel of the Medical Practitioners Tribunal Service. Dr X faced seven allegations. Two were withdrawn by the GMC; each of the other five was found not proved.

The application by Dr X and Y falls into two parts. First, they seek disclosure and permission to use papers from the care proceedings. Secondly, they seek disclosure from the GMC and permission to use papers from the Fitness to Practise Panel proceedings. Only at a comparatively late stage did it become clear exactly what documents they want and for precisely what purpose(s).

Initially, their case was set out, and at considerable length, in a statement by Dr X dated 27 June 2014 and in skeleton arguments by their counsel, Miss Claire Wills-Goldingham QC, dated 25 June 2014 and 4 September 2014. A Scott Schedule dated 21 August 2014 listed the documents of which they sought disclosure: 278 documents from the care proceedings (not all of which had been included in the care proceedings bundle), which I shall refer to as the family court documents, and a further 10 documents (not filed in the care proceedings) from the hearing before the Fitness to Practise Panel. The latter documents were referred to before me, and I shall refer to them, as the Bundle J documents. The Scott Schedule was prefaced by the words:

“Disclosure is sought of all the documents listed below, to enable there to be full transparency of the circumstances leading up to the placement of the child and mother at [the Clinic], their assessment at [the Clinic], the termination of the placement there and subsequent events.”

Included in the list of family court documents, were psychological and psychiatric reports on the mother by various practitioners, including Dr Z, together with associated records (50 documents), many pages of medical records and associated documents relating to the mother (101 documents), and the records of assessment at the Clinic (15 documents), the latter listed under the heading ‘Bundle H: Records of assessment at [the Clinic]’. Documents 234-263 included in the list of family court documents under the heading ‘Additional medical records relevant to the Care Proceedings, not in the Bundle’, comprised nurses notes, doctors notes and other medical records, relating to the period after the mother had left the Clinic and when she was being treated elsewhere by other clinicians. These documents, listed also in an annex to the skeleton of the GMC’s counsel, Miss Heather Emmerson, were referred to before me, and I shall refer to them as, the Bundle H documents (they are to be distinguished from the documents listed under the heading ‘Bundle H: Records of assessment at [the Clinic]’ which are entirely different).

At that stage, the disclosure sought from the GMC was of the Bundle H documents and the Bundle J documents. The Bundle H documents comprised documents obtained by the GMC as part of its investigation and disclosed to Dr X. Some, but not all, were deployed before the Fitness to Practise Panel. The Bundle J documents comprised various witness statements relied on by the GMC or Dr X before the Fitness to Practise Panel.

In his statement, Dr X referred to what he called “a need for transparency for experts in the Family Court.” He said that “reputable journalists”, whom he identified, wished to “have access to the documents in order to write articles on the role of the expert in the Family Court and the functioning of the General Medical Council when regulating doctors acting as experts.” He said that “misinformed press reporting has severely damaged my reputation and my ability to work in child protection or within the court arena” and that he been “unable to respond due to the confidentiality of the family court.” The mother, in contrast, he said, had not merely spoken to the media, making what he said were “false allegations” about him, but had also made documents available on the internet, notwithstanding an injunction prohibiting her from doing so. He said that he had received a number of invitations to speak at professional conferences “but cannot make these presentations without disclosure being allowed.” In Miss Wills-Goldingham’s skeleton arguments it is said that Dr X’s “otherwise unblemished reputation … has been cataclysmically damaged … through inaccurate reporting and internet postings” and that he has been “unfairly and unjustly pilloried by the mother and, through her, by the press.”

On 3 November 2014 I made an order requiring Dr X and Y to set out “precisely” a list of the documents of which disclosure was sought and the purpose or purposes for which disclosure was sought. The response was in a further skeleton argument. This made clear that disclosure was now sought of only some (46) of the family court documents listed in the Scott Schedule. The reduced list still included a number of psychological and psychiatric reports on the mother, including those by Dr Z, the records of the assessment at the Clinic and the first eleven (Scott Schedule documents 234-244) of the Bundle H documents. It was also made clear that disclosure was no longer sought of the Bundle J documents.

The purpose for which disclosure was sought was described as follows:

“to enable [Dr X and Y] to have the original source material upon the basis of which they can discuss openly, orally and in written material, their experiences and Dr [X] in particular as a single joint expert in family court proceedings.”

The skeleton went on to make clear that:

“it is not their intention to provide the documents to any third party, merely to have the source material available should anyone question the veracity of any statement made by them and to confirm what has been said by others. The documents would neither be given nor shown to a third party but might, in the event of challenge, be quoted from that original source material, the name of the child always being redacted but not those of [various specified professionals, including Dr Z].”

Mr Alistair MacDonald QC, on behalf of the local authority, characterised this as amounting to the claim that Dr X should be enabled to make disclosure of what he selects, to whom he selects, at a time he selects and without the intervention of either the court or the parties.

Dr X and Y were represented, as I have said, by Miss Claire Wills-Goldingham QC. Their application was opposed by C’s guardian, represented by Mr Matthew Haynes, by C’s mother, represented by Mr Nicholas Bowen QC and Mr Jonathan Price, by the GMC, represented, as I have mentioned, by Miss Heather Emmerson, and by the local authority, represented by Mr Alistair MacDonald QC and Mr Stephen Abberley.

Both in their skeleton arguments and in oral submissions, counsel’s arguments appropriately ranged far and wide. At the end of the hearing, I indicated that further written submissions would be accepted, though not particularly encouraged. Both Dr X and the mother’s counsel availed themselves of the opportunity.

I am very sorry that preparation of this judgment has been so delayed. It has had to give way to more pressing judgments that had to take priority.

Before turning to the detail of the very interesting submissions which have been addressed to me, it is convenient first to survey the legal landscape.

I start with long-established common law principle (I need not for present purposes distinguish between the common law, properly so-called, and equity). Because certain professional or commercial relationships – for example, the relationship of doctor and patient, lawyer and client and banker and customer – are, of their very nature, confidential, the knowledge or information acquired in the course of such a relationship is confidential. So, the doctor, lawyer or banker, as the case may be, is under a legally enforceable duty to preserve the confidence of his patient, client or customer and a legally enforceable duty not to disclose the information. It is well recognised that, in principle, the duty extends beyond the termination of the professional relationship and survives even the death of the patient, client or customer.

In the case of lawyers and doctors (and, no doubt other professions) this legal duty to preserve confidence, enforced by the courts, is mirrored by a corresponding professional obligation, enforced by the profession’s disciplinary bodies. In the case of lawyers the duty of confidence is mirrored by the rule of legal professional privilege.

This is all so well recognised that there is no need to cite authority, beyond referring to what Bingham LJ, as he then was, said in W v Egdell [1990] Ch 359, 419:

“It has never been doubted that the circumstances here were such as to impose on Dr Egdell a duty of confidence owed to W. He could not lawfully sell the contents of his report to a newspaper … Nor could he, without a breach of the law as well as professional etiquette, discuss the case in a learned article or in his memoirs or in gossiping with friends, unless he took appropriate steps to conceal the identity of W.”

There are of course qualifications. An early summary is to be found in the well-known judgment of Bankes LJ in Tournier v National Provincial and Union Bank of England [1924] 1 KB 461, 473. He posed the question, what are the qualifications of the contractual duty of secrecy implied in the relation of banker and customer? His answer was as follows:

“There appears to be no authority on the point. On principle I think that the qualifications can be classified under four heads: (a) Where disclosure is under compulsion by law; (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of the customer.”

True it is that in that case the court was concerned with the duties of a banker, but it is clear, in my judgment, that, at least when expressed at this high level of generality, and I take what Bankes LJ said as descriptive rather than definitive, the principle extends, as both Bankes and Scrutton LJJ recognised, to other confidential relationships. As Scrutton LJ said (page 481), the duty:

“equally applies in certain other confidential relations, such as counsel or solicitor and client, or doctor and patient.”

W v Egdell [1990] Ch 359 is a well-known example of Bankes LJ’s qualification (b) in the medical context.

In the present case we are concerned primarily with qualification (c). The example Bankes LJ gave was where a bank issues a writ claiming payment of an overdraft stating on the face of the writ the amount of the overdraft. Familiar examples in the case of lawyers and doctors are where the client or patient brings an action for professional negligence, or makes allegations of professional misconduct before a professional disciplinary tribunal, or seeks to defend a claim for unpaid fees by raising an allegation of negligence or professional misconduct. In principle, the same would apply if, in response to defamatory statements, the lawyer or doctor sued his client or patient in libel, slander or malicious falsehood.

The mere fact that the circumstances may in principle bring the case within qualification (c), does not, of course, mean that confidentiality is without more ado lost or that the duty on the lawyer or doctor evaporates. As it is put in Toulson & Phipps on Confidentiality (ed 3, 2014), para 11-031:

“If a patient sues a doctor or makes a complaint about him, for example to the Health Services Ombudsman or the GMC, he would no doubt be taken to waive confidentiality to the extent necessary to enable the doctor to defend himself. However, the General Medical Council’s supplementary guidance, Confidentiality: Responding to criticism in the press (September 2009) warns that doctors should not disclose confidential information for the purpose of conducting a dispute with a patient in the media.”

The GMC’s guidance there referred to is expressed in plain terms. I quote paragraphs 2-4:

“2

Doctors are sometimes criticised in the press by their patients [a footnote explains that “In this guidance, ‘patient’ is used to refer to both current and former patients”] or by someone their patients have a close personal relationship with. The criticism can include inaccurate or misleading details of the doctor’s diagnosis, treatment or behaviour.

3

Although this can be frustrating or distressing, it does not relieve you of your duty to respect your patient’s confidentiality. Disclosures of patient information without consent can undermine the public’s trust in the profession as well as your patient’s trust in you. You must not put information you have learned in confidence about a patient in the public domain without that patient’s express consent.

4

Disputes between patients and doctors conducted in the media often serve no practical purpose; they can prolong or intensify conflict and may undermine public confidence in the profession, even if they do not involve the disclosure of personal information without consent. You should usually limit your public response to press reports to an explanation of your legal and professional duty of confidentiality.”

The lawyer or doctor vilified or abused on the web by his client or patient is not thereby liberated from his obligation so as to permit him to make whatever retaliatory use he may choose of otherwise confidential information about his client or patient. There must be – I put the matter generally – some appropriate balance between the competing claims of the patient and the doctor. The invasion of the patient’s confidentiality must be proportionate to the legitimate demands of the doctor.

Bankes LJ, as we have seen, qualified the exception as being confined to what was “required” to protect the interests of the duty-holder. Scrutton LJ (page 481) described it as being “to an extent reasonable and proper for its own protection”, Atkin LJ (page 486) referred to the “right to disclose such information when, and to the extent to which it is reasonably necessary for the protection of the bank’s interests.” Nowadays, this principle, as we will see, is modulated by the usual Convention criteria of ‘necessity’ and ‘proportionality’. Thus where, for example, the issue arises in the context of the kind of litigation referred to above, disclosure will in principle be controlled in at least two ways. First, disclosure is likely to be confined to what is necessary for enabling the proceedings to be disposed of justly and fairly. Secondly, the court, in an appropriate case, may impose safeguards and limitations on the wider use or more general dissemination of what has been disclosed for the purpose of the proceedings.

Our domestic law has now, of course, to be considered from the perspective of Article 8 of the Convention, in particular in the light of the decisions of the Strasbourg court in Z v Finland (1998) 25 EHRR 371 and MS v Sweden (1999) 28 EHRR 313 (see also S and Marper v United Kingdom (2009) 48 EHRR 50). I need not repeat the analysis set out in A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673 (appeal dismissed A Health Authority v X [2001] EWCA Civ 2014, [2002] 1 FLR 1045) and largely replicated in Re N (Family Proceedings: Disclosure) [2009] EWHC 1663 (Fam), [2009] 2 FLR 1152 (see also Lewisham London Borough Council v D (Local Authority Disclosure of DNA Samples to Police) [2010] EWHC 1238 (Fam), [2011] 1 FLR 895). For present purposes it suffices to draw out three points.

The first is the principle articulated in Z v Finland, para 95, and reiterated in MS v Sweden, para 41, that:

“the protection of … medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general.

Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community.”

The second point is that certain types of medical data are entitled to particular protection. As the court said in Z v Finland, para 96, these considerations are:

“especially valid as regards protection of the confidentiality of information about a person’s HIV infection. The disclosure of such data may dramatically affect his or her private and family life, as well as social and employment situation, by exposing him or her to opprobrium and the risk of ostracism. For this reason it may also discourage persons from seeking diagnosis or treatment and thus undermine any preventive efforts by the community to contain the pandemic. The interests in protecting the confidentiality of such information will therefore weigh heavily in the balance in determining whether the interference was proportionate to the legitimate aim pursued. Such interference cannot be compatible with Article 8 of the Convention unless it is justified by an overriding requirement in the public interest.

In view of the highly intimate and sensitive nature of information concerning a person’s HIV status, any state measures compelling communication or disclosure of such information without the consent of the patient call for the most careful scrutiny on the part of the court, as do the safeguards designed to secure an effective protection.”

In the present case, I am concerned primarily with medical data relating to the mother’s mental health, but one cannot ignore the societal reality of the stigmatising effects of mental illness. So, where the medical data relates to the patient’s mental health it will, as where it relates to the patient’s sexual health, demand a relatively high degree of protection: see Re N (Family Proceedings: Disclosure) [2009] EWHC 1663 (Fam), [2009] 2 FLR 1152.

The third point is that if there is to be disclosure without the consent of the patient there must be what in Z v Finland, a case where the patient had had an abortion, the Court referred to, para 103, as “effective and adequate safeguards against abuse.” What those safeguards should be will, no doubt, depend upon the particular circumstances. In A Health Authority v X, para 53, it was said that the court’s approach in Z v Finland and MS v Sweden suggests that:

“typically what will be required is:

(i)

the maintenance of the confidentiality of the documents themselves – the documents should not be read into the public record or otherwise put in the public domain;

(ii)

the minimum public disclosure of any information derived from the documents; and

(iii)

the protection of the patient’s anonymity, if not in perpetuity then at any rate for a very long time indeed.”

It is to be noted that both in Z v Finland and MS v Sweden and in A Health Authority v X, the contest was, on one level of analysis, between the private interest of the patient and a competing public interest. I put it that way because, on another level of analysis, as the Strasbourg case-law demonstrates, the public interest is involved on both sides. In the present case, although the public interest is plainly heavily engaged, the contest is, on one level, between two private interests: the interests of the mother (and C) and of Dr X. None of that, however, diminishes the significance in a case such as this of the learning in Z v Finland and MS v Sweden and in A Health Authority v X. I add, to make clear that I have not overlooked the point, that the fact that Dr X’s interest arises in a professional context, does not deny him the protection of Article 8, for the ‘private’ life referred to in Article 8 extends to the individual’s professional interests: see Niemietz v Germany (1993) 16 EHRR 97, para 31.

Finally, the legal landscape needs to be viewed through the prism of family court practice. The authorities are legion. There is no need for me to add to the jurisprudence. The convenient starting point is often taken to be the principles set out in the familiar passage in the judgment of Swinton Thomas LJ in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, 85, sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725, 733, most recently applied in Re X and Y (Children: Disclosure of Judgment to Police) [2014] EWHC 278 (Fam), para 35, where Baker J said that it “remains the leading authority when deciding whether to disclose confidential information arising in care proceedings”. There is a penetrating and illuminating summary of the jurisprudence in the same judge’s judgment in Bristol City Council v NGN Ltd and Others [2012] EWHC 3748 (Fam), [2013] 1 FLR 1205, para 12.

However, for present purposes I can go straight to A v Ward [2010] EWHC 16 (Fam), [2010] 1 FLR 1497, from which I derive the three principles directly in play in the present case. First, the documents from the care proceedings of which disclosure is sought are all subject to the restrictions arising under section 12 of the Administration of Justice Act 1960. Secondly, the application before me is accordingly that I exercise what it is convenient to call the “disclosure jurisdiction”: see Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, para 84. Thirdly, the disclosure jurisdiction has to be exercised by a “parallel analysis” of the various rights protected by Convention which are engaged, leading to an “ultimate balancing test” reflecting the usual Convention criteria of ‘necessity’ and ‘proportionality’.

There are many examples in the books of the exercise of the disclosure jurisdiction. Frequently, the application is for disclosure of a small number of specific documents for some specific purpose, typically for use in some forensic context: for example, in criminal proceedings, in disciplinary proceedings, or in an application to the Criminal Injuries Compensation Authority. Often, as where disclosure is to the police, the Crown Prosecution Service or a professional regulator, the justification is some public interest. But sometimes, as where disclosure is sought by the defendant in criminal proceedings or for the purposes of an application to the Criminal Injuries Compensation Authority, the justification is essentially some private interest.

It is well-recognised that, in appropriate cases, disclosure may be directed subject to more or less stringent conditions as to the use that can be made of the disclosed documents. Consistently with the Convention jurisprudence in Z v Finland and MS v Sweden, stringent restrictions are particularly likely to be imposed if the disclosure is of a patient’s medical data: see, for example, the forms of order imposed in A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673 and A Health Authority v X (Discovery: Medical Conduct) (No 2) [2002] EWHC 26 (Fam), [2002] 1 FLR 383.

A v Ward was, in this respect, an unusual case. Disclosure of the entire care proceedings bundle was authorised, without the imposition of any restrictions. But this was in circumstances (a) where (paras 136-137) the application was by the child’s parents, Mr and Mrs Ward, who alone had parental responsibility for him, and (b) where (para 139) it had “not been suggested that the trial bundles in this case include materials about other people or materials in relation to which people other than the Ward family have any significant private interest in maintaining their privacy or confidentiality.” The circumstances there, it is to be noted, were therefore very different indeed from those in the present case.

A v Ward is also important in the present context because it demonstrates (paras 24, 76) that the anonymity of treating clinicians and expert witnesses is not protected by section 12 of the 1960 Act; that accordingly a treating clinician or expert witness who wishes to remain anonymous must invoke what it is convenient to call the “restraint jurisdiction”; and (paras 124, 155-157, 179-181) that in most cases such an order is unlikely to be made.

This last point gave rise to the important judgment of Sir Nicholas Wall P in Re X, Y and Z (Expert Witness) [2011] EWHC 1157 (Fam), [2011] 2 FLR 1437. In that case, an expert medical witness in a care case based on an allegation of factitious or induced illness – the expert had made a report but had not given oral evidence – was heavily criticised by the judge in a published judgment where he was referred to as Dr M: see Coventry City Council v X, Y and Z Care Proceedings: Costs) [2011] 1 FLR 1045, paras 142-152. The report was a lengthy paediatric overview. The two issues before the President were (1) whether the ‘restraint jurisdiction’ should be exercised so as to protect Dr M’s anonymity and, if not (2) whether the ‘disclosure jurisdiction’ should be exercised so as to permit Dr M’s report to be published. Applying the analysis in A v Ward, the President decided not to exercise the ‘restraint jurisdiction.’

For present purposes, the central importance of the President’s judgment is in that part where he explained why, having declined to exercise the ‘restraint jurisdiction,’ it was, in his judgment, appropriate for that very reason to exercise the ‘disclosure jurisdiction’. As Sir Nicholas put it (para 73), Dr M should be:

“placed in a position properly to defend his work. This means disclosure of his report and his release from his duties of confidentiality … simply naming him without giving him the opportunity of defending himself would, in my judgment, be the worst of all worlds. The identity of the expert criticised unheard by His Honour Judge Bellamy would be known. The criticism would be in the public domain, but the answers would not. There would be no proper debate.”

He elaborated this later in his judgment (paras 88-90) which I need to set out at some length:

“88

In my judgment, the simple identification of Dr M does not meet the exigencies of this case. Indeed, as I have already indicated, it leaves us, in my view, in the worst of all worlds. The nature of the advice, and the terms in which it was given will not be known, nor will the doctor’s justification for what he said. If there is to be a debate it must be a real debate, and a real debate requires the material for the debate to be available. In my judgment, this can only be achieved by the disclosure of Dr M’s report.

89

The report does, of course, identify not only the three children but also their parents and a number of the treating doctors, including their general practitioner. Although I have not heard argument on the point …, my judgment is that informed discussion of Dr M’s report is not dependent upon the children being identified, and that the report should be published in redacted form, with the children remaining as X, Y and Z, and their parents remaining as ‘the mother’ and ‘the father’ respectively …

90

Dr M’s report does, of course, also name a number of the treating doctors, including the children’s general practitioner. This is a point which I have considered carefully, but have come to the view that these names should not be redacted. The local authority has been identified, and the GP’s practice is, of course, within the local authority’s area. Taking all the arguments adduced in Ward into account, I have come to the conclusion that in this respect the risk to the children being identified in the ensuing debate is minimal, and that, in this instance the European Convention, Art 10 arguments prevail over the Art 8 rights of the children.”

Addressing future practice, Sir Nicholas added this (paras 93-94):

“93

The anonymity of the child and the real risk that if the expert is identified the child will refuse to engage in the forensic process seem to me two good reasons against the disclosure of reports. But if they can be addressed, I can see little reason for a refusal to disclose the report of an expert to the world at large, either at the close of proceedings or if the facts warrant it, as the case progresses.

94

I would therefore like to see a practice develop in which expert reports would be routinely disclosed, and the media able to comment both on the report and on the use to which they were put in the proceedings. This would mean that the views of the judge on the expert evidence would also be disclosed.”

I shall return to consider the implications of Re X, Y and Z in due course. For the moment I merely observe that what was ordered to be disclosed was a single report which was a paediatric overview. In the present case, in contrast, disclosure is sought of a mass of medical materials relating to the mother’s mental health.

In Re X, Y and Z, as previously in A v Ward, emphasis was laid on the need, in the public interest, for debate – balanced debate – as also for the correction of misunderstanding and error. As I said in A v Ward, para 133, referring to the famous observations of Brandeis J,

“where the lack of public confidence is caused even if only in part by misunderstanding or, on occasions, the peddling of falsehoods, then … “the remedy to be applied is more speech, not enforced silence”… the remedy for such ills is not the enforced silence of judicially conferred anonymity but rather the disinfectant power of exposure to forensic sunlight.”

This theme was repeated by Sir Nicholas Wall P in Doncaster MBC v Haigh, Tune and X (By The Children’s Guardian) [2012] 1 FLR 577, a judgment understandably relied on by Miss Wills-Goldingham. I can summarise the facts from the head-note in the report. The mother of a 7-year-old girl made false allegations that the father had sexually abused the girl. At a fact-finding hearing the allegations were found to be entirely false and to have been a creation of the mother’s; she had coached the girl to make the disclosures. The mother refused to accept the findings and posted allegations that the father was a paedophile and a rapist on the internet, circulating information to parents at the girl’s school and to the father’s work colleagues. The publication of the allegations had had a profound effect on the girl and her father.

Whilst making orders designed to protect the child’s anonymity (though not that of her mother and father), the President authorised the release into the public domain of two previous judgments and also a lengthy factual statement, which was annexed to his judgment and which, as he made clear, the parties were to be free to use in whatever manner they thought appropriate.

Explaining why, the President said this (paras 21, 37, 41):

“21

… Mr Tune is not a paedophile and X has not been sexually abused. That is the position which needs to be placed on record and in the public domain …

37

It follows, in my judgment, that the record must be put straight. How is this to be achieved? It is, I think, trite law that I have the power to release information into the public domain. Judges regularly do so, for example, when an abducted child needs to be traced … Here, of course, the situation is different. There is, however, a need to put material into the public domain. It is important for the world to know that two judges have found that Mr Tune is not a paedophile and that it is in the interests of his daughter to live with him. It is also important for me, having examined the record, having read all the papers in the case, to state that I have reached the same conclusion.

…

41

The local authority … has … prepared a document … This document has been amended by the guardian. It contains the information which, in the view of the local authority, should be in the public domain … I have taken … the opportunity to alter the document myself, to anonymise it and to expand it. It will be attached to this judgment in the form in which I have drafted it. It will then be in the public domain in the form in which I have approved it.”

As will be appreciated, what were ordered to be disclosed were not what one might call the underlying papers in the case but three specific documents, each in a form approved by a judge: the two previous judgments and the factual statement drafted by the President.

A similar approach was adopted by Baker J in Bristol City Council v NGN Ltd and Others [2012] EWHC 3748 (Fam), [2013] 1 FLR 1205.

I turn to the parties submissions. These were long and detailed, so I must focus on the essence.

The four skeleton arguments filed on behalf of Dr X and Y run to a total of some 90 pages, including a detailed chronology and analysis of the care proceedings and of Dr X’s role. I draw out the key points.

On behalf of Dr X and Y, Miss Wills-Goldingham identifies the broad thrust of the application as being to further the recognition that there should be transparency in the family court; to enable there to be accurate reporting and discussion of the role of experts in family proceedings; to provide balance to inaccurate statements in the media, in Parliament and on the internet (some by the mother), in circumstances where, so it is said, the publicly available transcript of the proceedings before and the decision of the Fitness to Practise Panel do not explore these matters in sufficient detail or, in particular, address the issues about the conduct of the care proceedings that had led to the mother’s complaint in the first place; and to ensure a proper understanding by the GMC and others – lacking, she says – of the role of the single joint expert in family proceedings.

Miss Wills-Goldingham points to the risk that, if experts are not to be able to respond in a timely way to outrageous and unfounded allegations, the family court can expect to find few experts willing to place themselves at such risk of losing their reputations, careers and income. Malicious complainants, she says, are able to hide behind the anonymity conferred by the family court. All of this, she submits, must bring both the expert, and the court which has relied on the expert, into disrepute and thus undermine the public’s confidence in the family justice system.

She recognises that appropriate redactions may be necessary, but does not propose what precise form they might take.

Miss Wills-Goldingham took me to the relevant statutory provisions and to a number of the family court authorities additional to those I have already mentioned: In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, Re B (A Child: Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, A Local Authority v W, L, W, T and R [2005] EWHC 1564 (Fam), [2006] 1 FLR 1, Clayton v Clayton [2006] EWCA Civ 868, [2006] Fam 83, Re B, X Council v B [2007] EWHC 1622, [2008] 1 FLR 482, Re B, X Council v B (No 2) [2008] EWHC 270 (Fam), [2008] 1 FLR 1460, Re L (A Child: Media Reporting) [2011] EWHC B8 (Fam), Re RB (Adult) (No 4) [2011] EWHC 3017 (Fam), [2012] 1 FLR 466; and Re J (Reporting Restrictions: Internet: Video) [2013] EWHC 2694, [2014] 1 FLR 523; also to R (Guardian News and Media Ltd) v City of Westminster Magistrates Court [2012] EWCA Civ 40, [2013] QB 618.

She submits that on a proper application of the authorities, and in particular having regard to the approach of Sir Nicholas Wall P in Re X, Y and Z (Expert Witness) [2011] EWHC 1157 (Fam), [2011] 2 FLR 1437, and in Doncaster MBC v Haigh, Tune and X (By The Children’s Guardian) [2012] 1 FLR 577, the balance comes down in favour of the order sought by Dr X and Y.

On behalf of the local authority, Mr MacDonald and Mr Abberley oppose the disclosure sought. Their primary focus is on C rather than C’s mother. In a careful and balanced skeleton argument they analyse the statutory framework and the relevant authorities. They point out that where, unusually, the court has permitted disclosure and use of documents, rather than of information in the form of a carefully crafted statement authorised by the court, this is generally subject to stringent conditions, particularly where the documents relate to someone’s health. There is, they say, a clear distinction between disclosure in confidence to professionals and disclosure of personal information to the media with a view to publication: R (S) v Plymouth City Council [2002] EWCA Civ 388, [2002] 1 WLR 2583, para 49.

They point out, I believe correctly, that the nature and extent of the disclosure sought by Dr X and Y, even in its final reduced form, is unprecedented and beyond anything contemplated by any previous authority. They point out that, in contrast to Re X, Y and Z, the reports here are not in the ‘hard’ sciences, but rather psychological and psychiatric reports, containing, as do the other documents of which disclosure is sought, deeply personal and intimate information about C and C’s mother and the relationship between them. The nature and extent of the disclosure sought constitutes, they say, a disproportionate level of intrusion and public attention which will cause disproportionate damage to C’s psychological integrity and personal development and, indeed, put them at grave risk, thereby potentially adding to the harm which led to the care proceedings; thus undermining the whole purpose of the care proceedings and cutting across the outcome they were supposed to ensure. That last contention is elaborated in a passage in their skeleton argument which I bear very much in mind but which there is no need for me even to summarise.

They submit that anonymisation, even if effective, which they question given the circumstances and the amount of material sought to be disclosed, will not protect C from the impact of publication. Disclosure should in any event be subject to safeguards of the kind described in A Health Authority v X, but that is not proposed by Dr X.

Insofar as what is sought is said to be justified by the various wider interests prayed in aid by Dr X and Y, Mr MacDonald and Mr Abberley submit that a fair balance must be struck and that what is here proposed fails entirely to do so. They submit that in order to ‘tell the story’ of this case, either in articles or lectures, it is not necessary for the storyteller to have access to primary evidential material containing such deeply personal and intimate information. Insofar as what is sought is said to be justified by Dr X’s interest in repairing his reputation, they acknowledge the force of what the President said in Re X, Y and Z, but say that justice has already been done before a competent tribunal – the Fitness to Practise Panel – and that in any event Dr X has legal remedies if he is defamed in the media or otherwise.

Finally, they suggest that a better and more appropriate way for Dr X and Y to achieve their legitimate objectives would be to allow the publication, in anonymised form, of the two judgments delivered in 2009 by the Circuit Judge who heard the care proceedings (judgments which, they submit, would now fall within the ambit of the Practice Guidance, Transparency in the Family Courts: Publication of Judgments, which I issued on 16 January 2014) and, insofar as matters not aired in those judgments or in the already publicly available reasons of the Fitness to Practise Panel need to be aired to enable Dr X and Y to communicate their ‘side of the story’, by my authorising a summary statement of the kind that Sir Nicholas Wall P authored in Doncaster MBC v Haigh. In short, they suggest, the approach might be to keep the door closed but not locked, while not allowing it to be flung wide open.

Mr Haynes, on behalf of C’s children’s guardian, likewise opposes the application and adopts the local authority’s skeleton argument. He referred to the factors identified by Swinton Thomas LJ in Re C. He submits that the disclosure sought would cause C significant harm and points to the observation of Baroness Hale of Richmond in In re A (A Child) (Family Proceedings: Disclosure of Information) [2012] UKSC 60, [2013] 2 AC 66, para 21, about the need:

“to prevent the proceedings which are there to protect the child being used as an instrument of doing harm to that child.”

On behalf of the mother, Mr Bowen and Mr Price mount vigorous opposition to what Dr X and Y seek. What the applicants propose, they complain, is a systematic breach of the confidential relationships between the mother and those doctors, including Dr X, and medical professionals with whom she came into contact. Whatever Dr X may say, the consequence of the application, if granted, will, it is submitted, be the publication to the world at large of the mother’s medical records and reports. The material is confidential, both of its nature, by reason of its subject matter, and as having been generated in the context of a doctor/patient relationship. It is, they assert, referring to Z v Finland, sensitive personal data, in many cases the most sensitive and personal imaginable, protected both by the law of confidence and also by the Data Protection Act 1998. They assert that the balancing exercise, if it arises at all, comes down plainly against disclosure. They are scathing about the suggestion that in some way disclosure could be restricted to “respected” or “responsible” journalists. So far as concerns Y, they submit that her interest (if any) can only be commercial. If Dr X has been defamed, his remedy is an action for libel. Publishing confidential material about the mother is not a proper form of redress for the matters Dr X complains about.

In addition Mr Bowen and Mr Price rely upon the principle that misuse of private information is a tort (see Vidal-Hall v Google Inc [2014] EWHC 13 (QB), [2014] 1 WLR 4155, [2014] EMLR 14, paras 59, 66-70, and Weller v Associated Newspapers Ltd [2014] EWHC 1163 (QB), [2014] EMLR 24, paras 16-17). They also suggest that there might be liability under the Wilkinson v Downton principle (see OPO v MLA and anor [2014] EWCA Civ 1277), pointing in this connection to the mother’s complaint that what is proposed amounts to “unlawful intimidation … to cause alarm and distress.”

In relation to the argument based upon the mother’s own disclosures, Mr Bowen and Mr Price accept that in principle this may be relevant, but they submit that the mere fact of such disclosure is not enough to defeat a claim based on breach of confidence or misuse of private information. It is, they submit, a matter of fact and degree. Characterising the material the mother has put into the public domain as “a handful of tweets, some defamatory statements about [Dr X], and a redacted excerpt from one of [the mother’s] medical reports,” they submit that this material does not come close to establishing the mother’s consent to the publication of the material sought by the applicants. They point in this connection to what was said in Tournier, to W v Egdell and to the passage I have already quoted from Toulson & Phipps.

In large measure the parties’ submissions in relation to the GMC documents are subsumed within their more general submissions which I have already summarised.

Miss Emmerson, on behalf of the GMC, makes four submissions.

First, she questions the jurisdiction of this court to grant Dr X and Y the relief they seek in relation to GMC documents not deployed in the care proceedings, which category includes, as I understand it, some of the Bundle H documents. As she correctly points out, neither Dr X or Y nor the GMC was a party to the care proceedings. Her submission is simple and succinct:

“In respect of those documents which have not been filed in the care proceedings, there is simply no nexus between those documents and the Court’s jurisdiction as the Family Court which could confer on the Court the power to adjudicate upon the proposed use of those documents. For this reason the GMC invites the Court to find that it has no jurisdiction to consider the application in so far as it relates to any documents which do not form part of the documents filed in the care proceedings.”

She also questions the position of Y who, as she points out, had no direct involvement in either the care proceedings or the Fitness to Practise Panel proceedings. Y is, she submits, in no different position from any other member of the public.

Secondly, she submits that the Bundle H documents, as well as being confidential, in the sense that they contain sensitive medical information about the mother, were obtained by the GMC as part of its investigation and disclosed to Dr X for the purpose of and in connection with the Fitness to Practise Panel proceedings. Thus, they were provided to him in circumstances of confidence and his resulting duty of confidence prevents him disclosing them to third parties. Such material is treated as confidential by the GMC and is provided on a confidential basis to the doctor against whom allegations have been made and on the footing that the information will be used only for the purpose of responding to the allegations. She prays in aid the principle established in Home Office v Harman [1983] 1 AC 280.

Thirdly, and in any event, she submits that the Bundle H documents contain both detailed medical information relating to the mother and the opinions of medical practitioners treating her. The private and public interest in protecting patient confidentiality is, she submits, a “key” consideration. In this connection she referred to Z v Finland and A Health Authority v X. She bolstered the argument by reference to the Data Protection Act 1998.

Fourthly, she submits that no good reason has been adduced as to why disclosure is necessary. In this connection she referred to what Bingham LJ had said in W v Egdell and to the observation in Gurry on Breach of Confidence (ed 20120, para 9.84, that “there has yet to be a case where a doctor writes or publishes a learned article in such a way as to identify the patient without first obtaining consent.” Dr X, as she points out, has other remedies, for example proceedings for defamation or a complaint to a media regulator.

She adds that the present application is unprecedented so far as the GMC is concerned.

On behalf of the mother, Mr Bowen and Mr Price say much the same as Miss Emmerson, whose submissions they in effect adopt.

Standing back from the detail and focusing on the central issues and the substance, it is apparent that there are eight key factors, eight factors of magnetic importance, in this case:

In my judgment, on any view of the appropriate balancing test the balance comes down, clearly and decisively, against even the more reduced disclosure now being sought by Dr X and Y. What is proposed would constitute a massive and wholly unjustifiable breach of the confidentiality which attaches to the materials, impossible to justify by any asserted public interest, let alone by reference to any legitimate interests of Dr X and, in the same way and for comparable reasons, a breach of the mother’s rights under Article 8 of the Convention. Unsurprisingly in these circumstances, what is proposed extends far beyond anything to be found in the practice of the family courts.

Accepting, as I am prepared to for the purposes of argument, that Dr X has been traduced and defamed by the mother, his former patient, that does not, of itself, as I have explained, liberate him from his continuing duties of confidentiality nor, of itself, justify removing the limitations on the use of the family court documents arising under section 12 of the 1960 Act. There has to be a proper balance between the competing claims of the patient and doctor. The invasion of the patient’s confidentiality must, as in the case of an invasion of the confidentiality which attaches to the family court documents, be proportionate to the legitimate demands of the doctor. Here the remedy being sought by Dr X – permission to put the mother’s medical records and related documents into the public domain, at a time and in circumstances of his own choosing and without any of the safeguards usually imposed – is wholly disproportionate to anything which he can legitimately or reasonably demand. It goes far beyond what the law permits. Indeed, it conflicts with what the GMC’s guidance requires of Dr X.

I add, lest it be thought I have overlooked the point, that I am wholly un-persuaded that either anonymisation, whose effectiveness in the particular circumstances of this case I seriously doubt, or any degree of redaction compatible with Dr X’s objectives, is capable of overcoming what, in my judgment, are the insuperable obstacles in Dr X’s and Y’s way.

This suffices to dispose of the application. There is, therefore, no need for me to consider any further the other arguments based upon the Data Protection Act 1998 or the asserted claims in tort.

I do not propose to go down the road suggested as a possibility by the local authority (see paragraph 60 above). This was not a course which received much support from elsewhere. I was not taken in detail to the two judgments, with a view to being persuaded that, if need be suitably anonymised and redacted, they could appropriately and usefully now be published. Nor did Miss Wills-Goldingham propose the preparation of the kind of statement suggested by the local authority, let alone put before me even a rough draft of what might be appropriate. The fact is, of course, that all of this would fall far short of what Dr X and Y desire and, indeed, I imagine, far short of anything that would in their eyes assist their cause.

Insofar as this part of the application engages the same principles as the application in relation to the family court documents, it must suffer the same fate and for the same reasons. I need therefore say nothing more about Miss Emmerson’s third and fourth submissions.

In relation to her first and second submissions, to which Miss Wills-Goldingham at the end of the day really had no effective answer, I can be brief.

As to the first, I agree with Miss Emmerson that this court, exercising the only jurisdiction I am being invited to exercise, simply lacks the jurisdiction to grant relief against the GMC in relation to documents that were never deployed in the care proceedings. This, in my judgment, is so plainly so that it hardly needs reference to authority. It is however supported by authority: see the discussion in A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673, paras 64-65, of Re D (Minors) (Wardship: Disclosure) [1994] 1 FLR 346.

In relation to Miss Emmerson’s second submission, I agree with her that, for the reasons she gives, the Bundle H documents are confidential, having been provided to Dr X by the GMC on a confidential basis and on the footing that they would be used by him only in connection with the Fitness to Practise Panel proceedings.

For these reasons I have concluded that each part of the application fails and that it must be dismissed.