R (Mrs AB) v Northumbria Healthcare NHS Foundation Trust, Cumbria Northumberland Tyne and Wear Foundation Trust [2020] EWHC 2287 (Admin)
HHJ Davis-White sitting as a judge of the High Court refused the Claimant’s renewed application for permission to bring a judicial review proceedings challenging the refusal to delete inaccurate information concerning her 17-year-old son’s sexual behaviour from his medical records.
The facts
The Claimant’s son (“V”) suffered from Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder. From about 2008, he had been under the care of the first defendant, the Northumbria Healthcare NHS Foundation Trust (“Northumbria Trust”), primarily through the Child and Adolescent Mental Health Services.
The claim was that the refusal to delete various records amounted to a breach of the GDPR and the Data Protection Act 2018, as well a breach of the Equality Act 2010. Those dispute centred around a referral from Northumbria Trust to the Forensic Child and Adolescent Mental Health Service (“F-CAMHS”) within the Second Defendant (“CNTW Trust”). The referral was inaccurate in suggesting that V had been observed looking at images of naked babies, when in fact the babies had been clothed or wearing nappies. Secondly, regarding the frequency with which V had masturbated – rather than twice a day the incidents were at most two in all.
Following a complaint made by the Claimant, the Northumbria Trust wrote to the CNTW Trust providing updated information about the First Referral and correcting the two points concerning the babies not being naked and the incidence of masturbation. The writer asked, “At the request of Mrs AB, I would be grateful if the initial referral to the forensics team could now be deleted from your systems…”
Records from the CNTW Trust showed that their progress notes were updated to refer to the letter from Northumbria Trust setting out the inaccuracies in the information that had been provided, stating the correct position, and that the letter was to be uploaded. However, the CNTW refused to delete the records.
The Claimant also complained to the ICO.
Judgment
HHJ Davis-White emphasised at [39] that judicial review is a remedy of last resort, and where there is or was an adequate alternative remedy, that remedy should be, or should have been, pursued and that route exhausted before deploying judicial review proceedings.
He held that a complaint to the ICO under s.165 Data Protection Act 2018 was on the facts of the case an adequate alternative remedy that should have been pursued first.
He went to hold that in any event, provided there were adequate notes of any inaccuracies, the retention of the records was lawful under the public health exemption in Article 9(1)(h) of the GDPR, for which consent was not required. Accordingly, the exemption from erasure under Article 17(3) applied.
Comment
Heath providers are increasingly being requested to delete allegedly inaccurate medical records. This case is a useful reminder to consider (1) whether a complaint to the ICO should have been pursued first (if the claim is brought by way of judicial review), and (2) generally, whether any inaccuracy can be addressed by way of an explanatory note. The deletion of clinical records should not be undertaken lightly.
