In a recent High Court decision in England, a hospital trust failed in its action to force a journalist to reveal the name of a source who had supplied him with confidential patient information.  This decision has brought into focus the competing interests of a patient's right to confidentiality of their medical records on the one hand, and freedom of expression on the other.

The journalist in question had given confidential information regarding a patient (B) to a national newspaper, including evidence supporting allegations by the patient of mistreatment at the hands of hospital staff.  The hospital claimed that it was seeking this disclosure in order to safeguard respect for the private lives of all of its patients and to protect patient records, saying that it would use the information in order to dismiss the member of staff responsible for passing the information to the journalist as a deterrence measure. 

The journalist meanwhile relied on the right of freedom of expression enshrined in article 10 of the European Convention on Human Rights, as incorporated into the Human Rights Act 1998 in order to protect his source. He argued that freedom of expression attracts the highest possible legal protection and also pointed to the fact that he had limited the amount of information he actually released to the public.  He argued it would be against the public interest if his sources were discouraged from speaking to him.

The High Court refused the hospital's application and held that there was no breach by the source of any duty to B, since the latter had released much of the information in question into the public domain himself.  Having taken this action, B could not then claim to have been harmed by the journalist's subsequent actions.  Whilst the source had probably intended to bolster B's allegations of mistreatment, the Court did point out that there was no public interest justification for his disclosure of the information to the journalist.

The Court acknowledged that the protection afforded to free speech varied from case-to-case, but found that in this case it attracted the highest protection.  A free press is a lynch pin of democratic society and sources should not be deterred from contacting the journalist in question, who had a good record of previous investigative journalism.  The Court also accepted that the protection of medical records is of high importance but found in this case that there was no evidence of further leaks occurring and that the disclosure had been made in the erroneous belief that it was in the public interest. 

Finally, the Court considered whether this case fell within the exception contained in article 10(2), which provides for a derogation from the right of freedom of expression where overriding national interests are identified.  However, the court concluded that it had not been established that there was a pressing social need for the journalist's source to be identified.  The decision can be seen as a somewhat controversial victory for freedom of expression in the UK.

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