Expert witness defamation & vindication: Can confidential documents be used?

…:The lawyer or doctor vilified or abused on the web by his client or patient is not thereby liberated from his obligation so as to permit him to make whatever retaliatory use he may choose of otherwise confidential information about his client or patient. There must be … some appropriate balance between the competing claims of the patient and the doctor. The invasion of the patient’s confidentiality must be proportionate to the legitimate demands of the doctor…” (at [25])

In the matter of C (Application by Dr X and Y) [2015] EWFC 79 arose in the context of Dr X having been the treating psychiatrist for a woman, the mother of the child C. Dr X was also called upon to provide an expert opinion for the court, in relation to care proceedings for the child C (at [4]).

It appears that the woman later made a complaint about Dr X to the General Medical Council (GMC) and may have made public (internet) defamatory statements about him. The GMC brought proceedings against Dr X, which were dismissed.

The applicationby Dr X was for disclosure of and permission to use documents from the care proceedings and from the GMC proceedings (at [6]) to vindicate his reputation.

As explained at [10]:

In his statement, Dr X referred to what he called “a need for transparency for experts in the Family Court.” He said that “reputable journalists”, whom he identified, wished to “have access to the documents in order to write articles on the role of the expert in the Family Court and the functioning of the General Medical Council when regulating doctors acting as experts.” He said that “misinformed press reporting has severely damaged my reputation and my ability to work in child protection or within the court arena” and that he been “unable to respond due to the confidentiality of the family court.” The mother, in contrast, he said, had not merely spoken to the media, making what he said were “false allegations” about him, but had also made documents available on the internet, notwithstanding an injunction prohibiting her from doing so. He said that he had received a number of invitations to speak at professional conferences “but cannot make these presentations without disclosure being allowed.” In Miss Wills-Goldingham’s skeleton arguments it is said that Dr X’s “otherwise unblemished reputation … has been cataclysmically damaged … through inaccurate reporting and internet postings” and that he has been “unfairly and unjustly pilloried by the mother and, through her, by the press.”

The application was refused, with the court noting at [74] – [75]:

In my judgment, on any view of the appropriate balancing test the balance comes down, clearly and decisively, against even the more reduced disclosure now being sought by Dr X and Y. What is proposed would constitute a massive and wholly unjustifiable breach of the confidentiality which attaches to the materials, impossible to justify by any asserted public interest, let alone by reference to any legitimate interests of Dr X and, in the same way and for comparable reasons, a breach of the mother’s rights under Article 8 of the Convention. Unsurprisingly in these circumstances, what is proposed extends far beyond anything to be found in the practice of the family courts.

Accepting, as I am prepared to for the purposes of argument, that Dr X has been traduced and defamed by the mother, his former patient, that does not, of itself, as I have explained, liberate him from his continuing duties of confidentiality nor, of itself, justify removing the limitations on the use of the family court documents arising under section 12 of the 1960 Act. There has to be a proper balance between the competing claims of the patient and doctor. The invasion of the patient’s confidentiality must, as in the case of an invasion of the confidentiality which attaches to the family court documents, be proportionate to the legitimate demands of the doctor. Here the remedy being sought by Dr X – permission to put the mother’s medical records and related documents into the public domain, at a time and in circumstances of his own choosing and without any of the safeguards usually imposed – is wholly disproportionate to anything which he can legitimately or reasonably demand. It goes far beyond what the law permits. Indeed, it conflicts with what the GMC’s guidance requires of Dr X.

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