Legal Updates

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 mother.

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 mother.

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.

Stephen Cragg

Doughty Street Chambers