The Court of Appeal has just decided an important case balancing the competing public interests of press freedom versus medical confidentiality. A healthcare worker ("H") was diagnosed HIV positive. He resigned from his practice and notified the relevant local authority.
The authority requested details of the patients whom H had treated to evaluate whether they were at risk and should be notified.
H did not believe that his former patients were at sufficient risk to justify this procedure. H, therefore, commenced proceedings seeking a declaration that he need not disclose the confidential patient details and that his own identity should remain confidential.
A master ordered that the parties’ identities should not be disclosed pending the full trial.
The Mail on Sunday heard about H’s action and wrote an article: "Judge’s gag over Aids threat to patients." H then obtained a gagging order against the newspaper restraining it from soliciting or publishing any information which could identify H or his patients. The newspaper succeeded in varying the order on public interest grounds. The newspaper was allowed to identify the authority and publish information that many months had elapsed since H was diagnosed and that the authority’s evaluation was unlikely to take place for a long time, if at all.
He appealed. The Court of Appeal ruled, in order to avoid pre-empting determination of the issues in H’s first action and widespread public alarm, that H and the authority should not be identified. However, acknowledging the importance of restraining free speech only where absolutely necessary, the embargo on not disclosing that H was a dentist and the prohibition on the newspaper from soliciting information were lifted.
The court also held that H should make patient records available, as the authority reasonably required for its evaluation, but only on the basis that they were not disclosed or acted upon without H or the court’s permission.
Jennifer McDermott is a partner at
Lovells’ Computers, Communications and Media Unit