H v. Associated Newspapers and Anr.

[2002] EWCA Civ 195
Download Judgment: English

H was diagnosed as HIV positive whilst working as a care worker for the second respondent, N, the responsible health authority. Upon being diagnosed, H ceased to carry on practice as a healthcare worker and notified N of the reason for this. Under the Department of Health Guidelines (the ”guidelines”) patients who had undergone medical procedures believed to involve a degree of risk of infection should have been notified that they had been treated by a worker who was HIV positive and offered HIV testing and advice. Accordingly, N wished to carry out a patient notification exercise and requested H to supply particulars of the patients he had treated and their medical records. H handed over details of his NHS patients believing he was contractually bound to do so, but refused to hand over details of his private patients. H claimed that the guidelines were unsound and that he would not authorize them to use the information he provided about his patients for the notification exercise without a court order. H also contended that he could not disclose private patient records protected by the Data Protection Act 1998 unless the court ruled this was necessary.

Upon learning of what had occurred, the first respondent, ANL, intended to publish the details in an article. Accordingly, H requested and obtained an order restraining ANL from taking any steps and/or making any use of the patient records which would reveal directly or indirectly his identity and his HIV status. However, ANL still made it known to H that they intended to publish an article about him. H therefore commenced a second action, obtaining an injunction restraining ANL from soliciting or publishing any information which could directly or indirectly lead to disclosure of the identity or whereabouts of H or his patients; and, in particular, from publishing details of H’s clinical speciality (other than the fact he was a healthcare worker) or details as to when he was diagnosed as HIV positive and went off sick.

Subsequently, ANL published an article under the head line ‘Judge’s gag over AIDS threat to patients’. The article gave some clues as to H’s speciality to the extent that it was arguable that it breached the terms of the orders. ANL then successfully applied to vary both orders. Whilst accepting that they could not name H or publish information that would lead to his identification, ANL contended that they should be permitted to name the health authority and identify H’s speciality and approximate date of his HIV diagnosis. They also challenged the prohibition on the solicitation of information. H appealed against that part of the varied order permitting N to be named and ANL to solicit information about his identity. N contended that their identity should not be disclosed.

 

[Adapted from INTERIGHTS summary, with permission]

In allowing the appeal in part, and refusing leave to appeal, it was held that:

  • Interference with media freedom is rarely permitted under Article 10(2) of the European Convention on Human Rights (Jersild v Denmark (1995) 19 EHRR 1 applied), particularly where the story has a number of features of considerable public interest, as here. ANL's important right to initiate a debate about the hiatus during which patients of a health care worker were not notified that he was HIV positive is a significant factor in the balancing exercise of restraining media freedom. Although there might be a higher risk of alarm and inaccurate public perception where the communication of risk is through sensationalized news stories (A&B v Thameside & Glossop Health Authority [1997] 8 Med LR 91, CA considered), it is doubtful how serious a problem this could potentially be in such cases, so as to justify restricting press freedom.
  • ANL were correct to accept that they should not identify H or publish information leading to his identity being revealed. If healthcare workers are not to be discouraged from reporting that they are HIV positive it is essential that all possible steps are taken to preserve the confidentiality of such reports.
  • Further, an injunction allowing the media to publish either N's identity or H's specialty would result in both pieces of information entering the public domain, albeit in separate publications, and almost certainly lead to the identification of H. Accordingly, such an order should not be granted.
  • Similarly, If N's identity were disclosed, N would be relieved of the obligation to do nothing that might reveal the identity of H in order to re-assure those who were not H's patients that they were not at risk. Thus, the disclosure of N's identity would again set in motion a course of events that would be likely to lead to the disclosure of H's identity. For this reason, H and N should only be identified by their initials and that part of the modified order requiring the identification of N be set aside.
  • However, failure to reveal H's specialty inhibits debate as different specialties give rise to different degrees of risk of infection of the HIV virus. Provided the other restraints in the varied order remain in force there is a very small risk that disclosure of H's specialty will lead to his identity being disclosed and therefore this restraint is not justified.
  • By the same token, restraining a newspaper from soliciting information is a particularly draconian fetter on freedom of expression. In particular, the order here restraining ANL from soliciting information which might 'directly or indirectly lead to the disclosure of H's identity or his patients' identity' is drawn too wide to be justified.
  • However, if ANL were to use their knowledge of the area of location of N that they had gained from the first hearing in order to solicit information that leads to the revelation of H's identity this would be contrary to the spirit of the revised order.
  • Whilst H's patients have a right to confidentiality in relation to their medical records a healthcare worker's primary duty is to the welfare of all of his clients and that there will sometimes be circumstances in which it is in their interests to disclose their records. In this case, the first order properly enabled the determination of whether confidential medical records held by H and confidential information that H was HIV positive should be disclosed. Accordingly, H should hand over to N such records required for the purpose of evaluation on the terms that N does not disclose them or take any action on the basis of them without the permission of H or the court.

 

[Adapted from INTERIGHTS summary, with permission]

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