The High Court declared that a hospital or treating psychiatrist may provide relevant medical records to a legal representative appointed for a patient detained under the Mental Health Act 2001, where the patient lacks capacity to give written consent. The declaration applies when the records are requested to represent the patient and are relevant to the reasons for the admission or renewal order under review.
Mr Justice Michael Peart said that disclosure in those circumstances was necessary to protect the patient’s interests and would not breach the hospital’s or psychiatrist’s duty of confidentiality. He added that the hospital or psychiatrist could reasonably decide in a particular case to wait for a tribunal decision, though he said the reason would be expected to be exceptional.
The case concerned EJW, a 70-year-old woman detained at St. Senan’s Psychiatric Hospital under an involuntary admission order made on 22 February 2008. The Mental Health Commission appointed solicitor Finbarr Phelan as her legal representative. He said she lacked capacity to consent to access to her medical records or to instruct him, and that he could not properly prepare for her tribunal review without seeing them in advance.
The hospital’s stated practice was not to release records without the patient’s written consent. It said the Mental Health Act expressly provided access to records for an independent consultant psychiatrist, but not for the patient’s legal representative. The Commission said it had no power to direct the hospital to release records, while supporting earlier access in the patient’s interests.
The records were eventually made available after the tribunal directed disclosure, and the tribunal adjourned the review. The parties told the court the proceedings had become moot, but asked it to decide the wider issue. The applicant argued that waiting until the tribunal sat could force an adjournment and prolong detention; the hospital did not accept that she had been unlawfully detained.
The judge found that the statutory scheme’s protections, including the patient’s right to legal representation and a timely tribunal review, supported access early enough for the representative to prepare. He said the assigned representative’s role was not limited to appearing at the review hearing. The court did not find that the applicant had been unlawfully detained, and the judgment did not order release of records in this individual case: access had already been directed by the tribunal.
The court made the substituted declaration and refused the remaining reliefs sought. The judgment was delivered on 25 November 2008.