Judge rules complainer in domestic abuse case entitled to be heard before order for recovery of her medical records is made

A judge in the Court of Session ruled that any person whose human rights may be infringed by an order for recovery of medical records “must be given the opportunity to be heard in opposition to the application before an order is made”.

Lord Glennie (pictured) heard that the petition for judicial review arose in respect of criminal proceedings against an accused brought on indictment in the sheriff court in September 2014.

The petitioner, “WF”, the complainer in the criminal proceedings, applied for legal aid to enable her to be represented at a hearing before the sheriff of the accused’s petition for recovery of her medical records.

The Scottish Ministers refused to order the Scottish Legal Aid Board to make legal aid available for this purpose, arguing inter alia that she had no right to be heard or represented in front of the sheriff on that application.

The petitioner sought reduction of that decision, as well as declarator that the failure of the Scottish Ministers to promulgate such legislation to enable her to be represented before the sheriff in opposition to the application for recovery of her medical records was incompatible with, and a breach of, her rights to private and family life under article 8 of the European Convention on Human Rights.

The court was told that the indictment comprised of seven charges, all containing allegations of assault and domestic abuse in the period from 2008 to 2011.

To assist with his defence, the accused sought to recover from the NHS and other havers all medical, psychiatric and psychological records from 2007 to 2014 relating to the complainer, the principal witness in respect of the first five charges.

In November 2014 the sheriff allowed his petition for commission and diligence – brought in terms of section 301A of the Criminal Procedure (Scotland) Act 1995 – to be received and authorised intimation thereof “on all interested parties”.

Following intimation of the petition on her, the complainer sought legal advice and application was made on her behalf to the Scottish Legal Aid Board (SLAB) for legal aid to enable her to be represented in the petition proceedings before the sheriff in opposition to the petition for recovery of her medical records based on her right to respect for her private and family life under article 8 ECHR.

SLAB refused to grant legal aid on the basis that there was “no provision” in the legal aid legislation and regulations for legal aid to be granted for such proceedings.

Thereafter, in May 2015, the complainer applied to the Scottish Ministers in terms of section 4(2)(c) of the Legal Aid (Scotland) Act 1986, which gives the Scottish Ministers the power to direct the grant of legal aid in circumstances not otherwise covered by the rules, but by letter dated July 2015 the application was refused.

The refusal was based upon the proposition that the complainer had “no right to appear or be represented” in the petition proceedings before the sheriff and did not need to in order for her article 8 rights to be adequately protected.

However, counsel for the petitioner submitted that the complainer’s article 8 rights were engaged by the petition for recovery of her “highly sensitive” medical records, and she was entitled to seek to protect her privacy by appearing in court.

Turning to the Scottish Ministers’ letter of July 2015 refusing legal aid, counsel characterised the argument that the complainer could rely upon the court knowing the law and protecting her interests as as displaying a “lack of understanding of the adversarial system”.

She added that the interests of the procurator fiscal in proceeding to a fair trial were not necessarily the same as those of the complainer.

It was argued that if an order was made for the recovery of her medical records without the complainer having an opportunity of making representations to the court, her article 8 rights would be “infringed”.

The judge held that intimation to the complainer and the provision of an opportunity to be heard before an order for recovery of her medical records is made was “required if there is not to be a breach of the complainer’s article 8 rights”.

In a written opinion, Lord Glennie said: “I conclude, therefore, that a haver and any person whose Article 8 rights may be infringed by an order for recovery of medical records and other sensitive documents must have the application for recovery intimated to them and must be given the opportunity to be heard in opposition to the application before an order is made or, at least, before the documents are handed over to the party seeking them.

“In the meantime it will be a matter for a sheriff hearing the application to determine how best to ensure that a party seeking to vindicate his or her Convention rights is heard before medical and other sensitive records are allowed to be released.”

He added: “If the complainer has a right to be heard, whether initially at some later stage, it must follow that she is entitled to legal representation. That raises the question of whether she is entitled to be publicly funded for such representation.

“If, as the material presented to Scottish Ministers appears to show, the complainer here is vulnerable and terrified by the whole court process so that she cannot be expected to speak up for herself in court and present her arguments coherently and forcefully, that will be a strong reason for the application for legal aid to be favourably regarded.”

The petitioner’s solicitor, Sylvia MacLennan, of Inksters (pictured right) said: “This is a very important decision for both victims of crime and those accused of a crime. On one hand, no victim of crime should be put off from reporting it for fear that the perpetrator will have free access to their private information.

“On the other hand, those accused of a crime will still have a right to ask a court to order the release of information which is needed to ensure a fair trial.

“A lot of preparation was needed for this case, some of which was carried out by advocates and by solicitors within our firm acting for free due to the public importance of the points of law which had been raised.

“Credit must also be given to WF for showing determination in instructing us to raise the judicial review which will have such important legal effect in future cases.”