In R on the application of S v Plymouth Council (26 March 2002)
the court of appeal grappled with the issue of whether the nearest
relative of a person (P), lacking capacity and subject to a
guardianship order under the Mental Health Act 1983, was entitled
to have access to that person’s files.
The nearest relative (P’s mother) wanted access to the files so
that she could properly exercise her statutory right to object to
the continuation of the guardianship order. The health authority
refused to grant access to her as P lacked capacity to consent to
this, and without such consent providing access to another person
to the files was unlawful.
The health authority however sought to compromise the case by
stating that it would provide access to an independent social
worker and an independent psychiatrist instructed by P’s
The court of appeal held that the refusal by the local authority
was based on the common law duty of confidence, which was subject
to a number of exceptions and involved a balancing exercise between
a number of different factors.
In a case such as this (where P’s mother might be subjected to
proceedings to displace her as nearest relative), and where article
8 (right to respect for family life) and article 6 (right to a fair
trial, including access to relevant information) of the European
Convention on Human Rights were engaged, the correct outcome of the
balancing exercise was that the material should be disclosed to P’s
Comment: This case indicates that the duty of confidence owed to
a person lacking capacity is not absolute, and their best interests
may well involve disclosure to a relative. However, it will not
always be clear where the balance should be struck and in these
cases only the court will be able to make the final decision.
Doughty Street Chambers