The House of Lords has upheld the Court of Appeal’s decision in the case of Ashworth Security Hospital v MGN Ltd, requiring MGN to identify its source.
The case concerned the publication of an article in the Daily Mirror which included extracts from the medical records of Moors murderer Ian Brady, a patient at Ashworth. Upon payment of the sum of £1,500, the Daily Mirror had obtained the medical notes from an intermediary and it is likely that the identification of this intermediary will lead to the identification of the initial source, most probably an employee of the authority. The House of Lords was particularly concerned with the issues of wrongdoing and the necessity of a disclosure order. Unlike the Court of Appeal, however, the Lords felt it was unnecessary to establish ‘wrongdoing’ on the part of MGN. It was sufficient that the wrongdoing was attributable to the source. MGN merely needed to be involved or have participated in the source’s wrongdoing in some way. Once this threshold requirement was fulfilled, the court could consider whether an order was both necessary and a proportionate response.
The Lords were careful to reiterate the intention of both s10 of the Contempt of Court Act and Article 10 of the Convention on Human Rights, their common purpose being to protect sources and that the exceptions to those two provisions must be interpreted narrowly. That said, the court went on to consider whether disclosure would be in the interests of justice in this particular case. Acknowledging once again the chilling effect of any disclosure being ordered, the Lords felt that in this instance, disclosure was nevertheless necessary. This was "an exceptional case" due to the clear relationship of trust being necessary between patients and their therapists, the reliance on information from others such as the staff and, to remove the cloud of suspicion which, until the source was known, continued to hang over the heads of all the staff at the hospital. Most important was the fact that the case concerned health data and medical records and, therefore, this had wider implications — such data should be safeguarded in any democratic society. They were also concerned to point out that the disclosure had been made worse because it was purchased by a cash payment.
The decision reached was a predictable result, particularly given the financial inducement provided to procure confidential documents from what is likely to be an employee, in breach of their obligations. The very sensitive nature of confidential medical records is clearly of importance. However, the patient himself, Brady, had already released the substance of the information into the public domain himself. The documents published by the Daily Mirror did not really take matters any further. The Mirror has now revealed its ‘source’ to be a journalist, who has stated his intention to protect the confidentiality of his own sources in turn, which will no doubt lead to further proceedings.
The Lords may have considered the facts of this case exceptional but it seems that what is becoming far less exceptional is the courts’ willingness to find disclosure to be necessary in the interests of justice.
Monica Bhogal is a media lawyer at Charles Russell
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