Decisions about breaching medical confidentiality should only be taken if the patient is told about the application and given a chance to have a say in court.
A briefing document from London-based solicitors Mills and Reeve followed the case of R v Stafford Crown Court.
It concerned a judge’s ruling that notes on a 13-year-old sexual abuse victim’s mental health treatment should be disclosed to her abuser, who was being prosecuted in the Crown Court.
The briefing note dated July 2006 said the High Court ruled that maintaining medical confidentiality was a core legal right under Article 8 of the European Convention on Human Rights.
It concluded that the disclosure order should not have been made without the girl having a say on the matter and gave general guidance on the balance between a criminal defendant’s right to fair trial and a patient’s right to confidentiality.
The ruling means primary care organisations served with applications for disclosure of medical notes need to be more careful.
Advice includes scrutinising waivers provided by the witnesses to police.
The Mills and Reeve briefing note also advises that, except in extreme cases, PCTs should never leave matters to the prosecution or defence legal teams but should be independently represented at court.