A v XB (non-party)

On The 30 January 2004 I dismissed X’s application under C.P.R. 31.17 for disclosure by B. As the application was described as unique and novel I said that I would give the reasons for my decision at a later date.

In order to preserve the anonymity and privacy of B I heard the application in private.

A and B are brothers who live near each other in a country district in which their parents also live.

On the 5th July 1997 A was a rear seat passenger in a vehicle driven by X, which collided with a tree. A sustained very serious multiple injuries including head and brain injury. Judgment on the issue of primary liability has been entered against X. The issues of contributory negligence and quantum remain to be determined.

By the time of the accident A, who was then aged 21, had completed the second year of an economics degree course at University. Because of his mental state A has been unable to complete his degree course and may be permanently unemployable. His aspiration was to become an investment banker. Thus the size of A’s claim and of X’s potential liability is extremely high.

A’s main psychiatric problem, allegedly arising from the undoubted head and brain injuries sustained in the accident, is a bipolar mood disorder or hypomania.

A bipolar mood disorder and hypomania may have a genetic origin. It seems that A’s 25 year old brother B may be suffering from a psychiatric disorder which possibly is the same as A’s. It is said that B is under the care of a consultant psychiatrist.

Clearly if A’s bipolar mood disorder or hypomania was not caused by the accident and on the balance of probabilities would have occurred sooner or later for genetic reasons, A’s award of damages would be substantially reduced. This is even if the trauma of accident accelerated the onset of his bipolar mood disorder or hypomania assuming that it would have happened on the balance of probabilities at some time for genetic reasons.

This was the explanation for X’s application. C.P.R.17 reads: -

“(1)

This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings

(2)

The application must be supported by evidence:

(3)

The court may make an order under this rule only where-

(a)

the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings: -

and

(b)

disclosure is necessary in order to dispose fairly of the claim or to save costs.”

It should be noted that the making of an order is discretionary and that that discretion to make an order can only be exercised if the requirements of 3(a) AND 3(b) are fulfilled.

The Court of Appeal in Three Rivers DC v. Bank of England No 4[2003] 1WLR 210 considered the meaning of the word “likely” in C.P.R. 31.17(3)(a) holding: -

“the test to be applied by the court would be satisfied where the documents “might well” support or adversely affect a party’s case; that the word “likely” took its meaning from its context and, where the context was a jurisdictional threshold to the exercise of a discretionary power, a modest threshold of probability was sufficient and it was not necessary to show that the disclosure was more probable than not to support or adversely affect a party’s case”

X’s application was in these terms: -

“We Greenwoods on behalf of the defendant intend to apply for an order for “B” who is not a party to these proceedings, to supply to both the claimant and defendant solicitors either his full General practitioner, hospital and other medical notes and records or a Form of Authority for the General Practitioner, hospital and other institutions to send his full medical notes and records, within 14 days of this application”

There is no reported case where the medical records of a non-party, and another human being, have been ordered to be disclosed in a personal injury action. Before making any such order the court must have regard to the following legal criteria. At Common Law doctors and others in possession of a patient’s medical records owe a duty to the patient to keep confidential those records. As Mr Hoskins for X accepted an order for disclosure would amount to an interference with B’s right to privacy under Article 8 of the Convention. Mr Hoskins also accepted that the records sought were “sensitive personal data” under the Data Protection Act 1998. The records sought are held by B’s general practitioner, consultant and hospital who under that Act are processors or controllers of that data. It should be noted that the word “necessary” is the common thread of CPR.17, Article 8 and the Data Protection Act.

In my judgment only in a very exceptional factual situation would a court be justified in civil proceedings in ordering disclosure of a non-party’s confidential medical data. This is not such a case.

In my judgment the defendant, X, has established that the disclosure of B’s medical records is likely to support the case of X and adversely affect the case of A. There is ample material in the experts’ reports that there is a serious issue on the causation of A’s current mental state and lack of academic progress and consequently on the validity of his huge claim for loss of earnings etc.

There is clear evidence that A was mentally disturbed while at University before the catastrophic accident as shewn by his excessive drinking and drug taking.

There is also some evidence that there is a similarity between A’s and B’s psychiatric problems both in manifestation and drug therapy.

The possible genetic link was referred to by Dr Fry, instructed by X’s solicitors, as long ago as the 13th June 2001. I quote: -

“Letter from Dr Longhurst, consultant psychiatrist to Dr Collin. 29/12/98 …Family history: father is described as moody; mother has no particular psychiatric history. I believe his brother, younger by 17 months, suffers from schizophrenia treated by Dr Maurice Atkins….

“…This is important for it increases the risk to A, as a first degree relative, developing schizophrenia by a very significant amount, perhaps as much as 12 times, when compared with a member of he normal population.”

“The second matter that has to be raised is the family history of serious psychiatric disorder in the brother. Once again, it is very difficult to offer any firm assessment in respect of this, except to say that had the accident not occurred, A would have been at increased risk of developing a serious psychiatric disorder, in particular, schizophrenia, as a result of the family history in a first degree relative, although there is no evidence of this disorder prior to the index accident.”

On the 30th April 2003 Dr Fry wrote: -

“There is then the very difficult but important issue of causality, and as Professor Trimble indicates, he has a brother who has been diagnosed as having schizophrenia and his brother takes similar medication.

Professor Trimble raises the important issue of whether A perhaps carrying the same genetic propensities as his brother, might have developed schizophrenia anyway at some point in the future had he never had the accident. This clearly raises important issues from the legal point of view and as a psychiatrist, I can only say it is possible that Professor Trimble is right, but it is possible that he is not right. It is extremely difficult to reach a degree of certainty in a matter of this nature.”

Prompted by a letter from X’s solicitors and in support of the application Dr Fry wrote on the 4th September 2003: -

“You will note that in my second supplementary report I discussed the complex issue of aetiology in this case. Put at its most simple, it appears that there is some degree of dissention between the experts in relation to the role of affective disorder, frontal lobe syndrome, and possibly cannabis abuse.

I cannot share the confidence of Dr Scheepers in relation to frontal lobe syndrome as the principal cause of difficulty, although I cannot rule it out as playing some role.

I believe that the good rapport that A showed and the appropriate behaviour and sensitivity that he showed to social interaction with me, at the times of my assessments, suggest that brain damage is probably a rather less significant factor here than affective disorder and possibly drug abuse.

If one takes the view that bipolar disorder and possible drug abuse are the more significant elements of his disability, then the road accident and injuries associated with it can be seen as bringing forward in time, the onset of an affective disorder which may have occurred anyway given the genetic vulnerability apparently associated with this case.

Other experts, no doubt would have drawn attention between the large body of literature and research in relation to risk, which is particularly high if either a parent or a first degree relative such as a brother or a sister shows well defined affective disorder

The risk is particularly pronounced for bipolar disorder.

I would therefore like to make it clear that in my opinion given the uncertainties in this case and the complexities of this case, it is extremely important that the records of the sibling B, be disclosed. If it were to be found that there were marked similarities between the clinical presentations, then it would be necessary to re-evaluate our views not only on frontal lobe damage, but on the role of the accident itself in this disorder.”

Professor Trimble had written on the 31st March 2003 to X’s solicitors: -

“His brother is 25, and has some kind of psychotic illness, either a schizoaffective disorder, or a schizophrenia, He is also receiving olanzapine.”

“He sustained a head injury with a retrograde and a very long post traumatic amnesia. This does suggest a potential for some underlying cerebral damage to occur during the time of the injury, although it has to be remembered that he was continuously being operated on for some considerable time after that, which makes it difficult to assess the exact extent of the head injury.”

“His main problem has been the development of a bipolar mood disorder. At one point in time he clearly was psychotic with schizophrenia-like features, a diagnosis of a schizoaffective disorder may have been more appropriate. Clearly this came on in a period of time after his head injury. He had shown some disinhibition in the hospital, probably became depressed afterwards, and then had the first of two clear manic swings”

“The difficulty in interpreting this case is that he has a brother who has been diagnosed as having schizophrenia. His brother is on similar medication. His brother of course had no head injury and yet developed the psychotic disorder as a young man. Thus, the question is raised, from the point of view of causality, as to whether or not he would have developed schizoaffective disorder if he had not had the head injury. Undoubtedly the events of the head injury (probably from the neurological but certainly from a psychological point of view) were severe. It could therefore also be argued that essentially what has happened is that the accident has bought forward in time the onset of this neuropsychiatric disorder which would have occurred even if he had not had the accident at sometime within a few years of the accident that happened”

Professor Trimble wrote on the 8th July 2003: -

“This question also leads back to the need to understand more about the nature of the brother’s psychiatric disorder. It seems to be either schizophrenic or schizoaffective, and it would seem that it may well be, from a phenomenological point of view, very similar to that of the claimant. Obviously this needs to be clarified before causality in relationship to the claimant’s illness can be discussed further.”

Dr Scheepers instructed on behalf of A said in his report dated the 3rd October 2002: -

“Starkstein and Manes suggest that the prevalence of secondary mania following traumatic brain injury is as high as 9%. They suggest that mania episodes may occur spontaneously or following injury to specific brain areas. They report on a study suggesting a higher frequency of secondary mania in those with a family history of mood disorders compared to individuals without such a history.”

“…the possibility that he may have suffered from a mood disorder anyway rests almost entirely on the fact that his brother has a diagnosis of schizophrenia or schizo-affective disorder. We do not have details of his brother’s condition, but there appears to be little evidence that he has a bipolar or unipolar mood disorder.”

See also Dr Scheepers’s letter of the 15th September 2003 when he said:-

“The approximate lifetime expectancy of developing schizophrenia for an individual who has a brother with this condition is 8.5%. This is for a confirmed and definite case and if probable cases are included the risk increases to 10.2% in terms of lifetime expectancy.

This needs to be compared with the risk in the general population of approximately 1%. It may therefore be argued that there is a ten fold increased risk. However, against this is the argument that on the balance of probability (risk greater that 50%) even with a confirmed case of schizophrenia, it cannot be argued that a sibling will develop the condition.

Even with monozygotic twins, the risk rises to 50% but does not rise to 51%. Nonetheless it could be argued that where two siblings have already developed mental health symptoms, the likely aetiology is genetic predisposition.

If indeed this is the case, there should be a family tree suggesting some form of inheritance. For two brothers to both develop the same condition whilst neither parent is affected, one would anticipate some other evidence from the family tree. I have not seen such evidence.”

The next question is whether disclosure is “necessary in order to dispose fairly of the claim or to save costs.” Disclosure would certainly increase costs but on the other hand would make adjudication of the major issue, causation, more reliable with the consequence that the assessment of damages in a huge claim will be more reliable.

Nevertheless I came to the conclusion that disclosure was not necessary for a fair disposal of the claim. The burden of proof is upon A to establish that his posttraumatic mental state was wholly or partly caused by the accident. There is material already available to X upon which A’s case can be undermined, the aberrant behaviour of A before and since the accident and B’s treatment with the same drug prescribed for A.

Even if I had concluded that disclosure was necessary for a fair disposal of the claim, I would not in this case have exercised my discretion in favour of X by granting the application.

Mr Hoskins for X accepted that an order for disclosure would be an infringement of B’s rights under Article 8 but submitted that that infringement could be ameliorated by substantial safeguards.

He suggested that B’s treating consultant psychiatrist should determine what material in his opinion in B’s G.P. records, hospital notes and consultant’s letters might be relevant to the genetic causation issue and then prepare the documents in redacted form limited to the relevant material.

A difficulty with this suggestion is that consultant psychiatrists do not have the training as to relevance in legal proceedings. In any event the psychiatrist would have to consider the Pleadings and experts’ reports exchanged in the litigation.

Moreover the G.Ps. hospitals and other consultants concerned might wish to be heard on their reasons for objecting to disclosure.

The consulting psychiatrist would have to decide presumably after discussion with B’s G.P. and others whether and to what extent disclosure of the relevant material might be harmful to B or adversely affect his mental stability.

The psychiatrist’s task would be time-consuming and costly albeit that all the costs would be paid by X on an indemnity basis as Mr Hoskins accepted.

Mr Hoskins suggested that when the treating psychiatrist’s task was completed the application be restored to me to determine whether the redacted material be disclosed.

B might then wish to be heard to submit that there were matters in the redacted documents which justifiably he might not want disclosing to A or his parents and which might upset him if disclosed.

If disclosure of the redacted material were ordered it would then have to be considered by A’s and X’s experts and counsel.

A further matter relevant although not determinative in the exercise of discretion is X’s delay in making the application.

X’s solicitors had knowledge of B’s mental condition certainly as long ago as the 13th June 2001. Not until September 2003 did X’s solicitors notify A’s solicitors that they were going to make this application.

On the application of X’s solicitors on the 28th October 2003 the case was re-fixed for a 10 day trial in July 2004 having originally been fixed for trial in October 2003. Yet for reasons not clear to me the application was not served on B until Christmas Eve 2003 and the day before the hearing before me a thousand pages of medical evidence were served on B’s solicitors.