COURT ORDERS DISCLOSURE AGAINST HEALTHCARE SAFETY INVESTIGATION BOARD

In Turner & Anor Sheffield Teaching Hospital NHS Foundation Trust & Anor [2023] EWHC 3452 (KB) Master Brown allowed an application by the claimant for disclosure of statements made to the Healthcare Investigation Board.

“A trial judge faced with deciding this issue would need to see these documents. This is a claim of the utmost importance to the Claimants, and is, of course, important to the Defendant, this being a high-value claim, and I have no doubt balancing that interest, notwithstanding the interests of those in retaining confidentiality, it is appropriate for these transcripts or recordings to be disclosed.”

THE CASE

The claimant brings an action against the NHS Trust alleging negligence shortly after he was born.   The claimant made an application for disclosure of statements made by the Trust’s employees to the Second Respondent the Healthcare Safety Investigation Board, a  statutory body set up to investigate series incidents of adverse outcomes in clinical practice.

The NHS Trust stated that it could not provide the statements because these were not documents in its custody or control.  The HSIB said it should not disclose the statements because it could undermine the basis of their investigations.

The Master held that the statements made by the Trust’s employees were not in the Trust’s control. The question was whether an order should be

THE RULES

1. 1. The relevant provisions are set out at 31.17. They provide:

“Orders for disclosure against a person not a party.

31.17

(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings2.

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where –

(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and

(b) disclosure is necessary in order to dispose fairly of the claim or to save costs”.

1. 1. These provisions are of course commonly used to obtain documents such police reports in road traffic accident case, and it will be necessary for an order to be made because of the relevant GDPR restrictions. In any event, the provisions were considered in some detail in Flood v Times Newspaper [2009] EWHC 411: in that case an order had been made for third-party disclosure by consent against the Independent Police Complaints Commission, and the applicant applied to set aside that order. In any event, the Court concluded that no such order should be made. The essential principles that apply on an application are set out in passage from [22] to [25] and I do not understand them to be controversial. Eady J held:

“It is clear that disclosure against third parties should be regarded as the exception rather than the rule, and is not simply ordered by way of routine, Frankson v Home Office [2003] 1 WLR 1952. Mr Nicklin emphasised the different stages which need to be considered in the light of the authorities.

The first requirement is that any documents sought must be shown to be likely to support or adversely affect the case of one or other party. Thus, the question to be asked in each case is whether they are likely to help one side or the other. The word ‘likely’ in this context has been considered in the Court of Appeal and is taken to mean that the document or documents ‘may well’ assist“: see e.g. Three Rivers District Council v Governor and Company of the Bank of England (No 4) [2003] 1 WLR 210 CA Civ).

Secondly, the hurdle must be overcome of demonstrating that disclosure of the documents sought is ‘necessary’ in order to dispose fairly of the claim or to save costs. This only arises for consideration if the first hurdle has been surmounted. Unless the documents are relevant in that sense, it is not necessary to address the test of necessity.

Thirdly, there is a residual discretion on the part of the Court whether or not to make such an order – even if the first two hurdles have been overcome: Frankson, cited above, at [13]. It is at this third stage that broader considerations come into play, such as where the public interest lies and whether or not disclosure would infringe third party rights in relation, for example, to privacy or confidentiality. If so, the Court must conduct a careful balancing exercise, as the Court of Appeal made clear in Frankson“.

1. 1. It is clear that, applying this test, I must be satisfied of the first stage before going on to the second stage, and then satisfied of this stage before going on to the third stage.

1. 1. I should say perhaps there was some suggestion, at least as I understand from Ms Stephens, that the first stage is somewhat narrower than for disclosure generally – I think the notes of The White Book indicate otherwise, perhaps somewhat broader. Reference was made to section 34 of the Senior Courts Act which is the foundation for the provision. However, nothing turns on this: the parties accepted, as I understand it, the test is whether documents may well assist.

1. 1. Ms Stephens was however right, I think, to emphasise other matters in the judgment. At paragraph 29, Eady J says:

“In any event, the Court has a clear obligation to ensure, if necessary of its own motion, that this intrusive jurisdiction is not used inappropriately – even by consent. In exercising its responsibility, the Court may well be assisted by submissions made on behalf of any third party the protection of whose interests requires to be considered“.

1. 1. At paragraph 32, there is a reference to a number of authorities and Eady J held they illustrate the public policy considerations to be taken into account when the interests of third parties are affected. He went to say:

“It is perhaps fair to say that these factors should weigh, if anything, more heavily after the enactment of the Human Rights Act 1998, having regard to the obligations imposed on the Court as a public authority.“

1. 1. Ms Mauladad referred to the GDPR requirements, which obviously require consideration in deciding whether to make such an order. She was also right to point out that whereas it might be said there is a public interest in there being a fair trial, I should be careful not to double count that consideration at stages one and two: I only get to stage three if I am satisfied that the documents sought are necessary, in effect, for a fair trial to occur.

1. 1. I have had regard to all the submissions as to the test to apply. The principles are essentially not in dispute.

1. 1. Is it the case that these class of documents may well assist? I have absolutely no doubt that they may well assist in this case. It is clear to me, as Ms Gumbel put it, and I recall her submissions I hope in appropriate detail, that they are essential: the nature and quality of the recollection of the midwives is at the heart of the decision that has be made by the Court. I would anticipate that it is at least possible, if not highly probable, that the interviews will go into the detail of the recollection of the midwives in a way which may be indicative of what in fact, happened in the period identified.

1. 1. That is not of itself enough: I have to be satisfied that it is necessary for these documents to be disclosed, that is necessary in order to dispose fairly of the claim, or save costs. As suggested in argument, it is undoubtedly the case, and has always been the case, that the Court is concerned by what witnesses said about disputed facts in contemporaneous documents. It is trite law, and no great recital is required as to the reasons this should be so. The Court is always concerned to know what is said, for instance, in a police report in road traffic accident cases, because that will indicate what the witnesses said at the time. As Leggatt J, as he then was, observed in the well-known case of Gestmin v Credit Suisse [2013] EWHC 3560 (Com), and as has been referred to by many other judges since, witnesses’ recollection can vary over time. Indeed, one of the particular points made in Gestmin, was that the process of civil litigation can subject the memory of an honest witness to powerful biases, particularly where there is a tie of loyalty to one party. In this case, of course, the midwives have at least a potential tie of loyalty to the Defendant.

1. 1. Ms Stephens, to be fair to her, accepted that a judge would be interested to see this document. I think that she had no choice to accept that. It seems to me obvious that a judge is going to be interested to see them. That is because the judge, I think, would regard these documents as necessary to determine the case. It was suggested at one stage, I think, albeit the point was perhaps not developed extensively, that the relevant documents could perhaps be provided to the judge, leaving it them to decide what to do about them. I do not see how that can be an appropriate process. The judge, if presented with these documents, is going to say that in order to conduct an Article 6-compliant trial, the documents have to be seen by parties. I cannot see how such a process could be achieved otherwise.

1. 1. It seems to me important to remember in this context that a coroner’s powers are different: the coroner is not conducting a trial in the same way as a judge is doing. In any event, as Ms Stephens told me, it would be open to the coroner in the case she referred to, as I have understood it, to have ordered documents disclosed to the parties.

1. 1. Before leaving this stage of the test, I should mention a further argument that was developed in relation to this point by HSIB. The hurdle of necessity was not met, as I understand it, from the skeleton argument of Ms Stephens (which was served on 18 July, the day before the hearing) because the claimant’s solicitor could alone approach the midwives and ask them whether they would seek the transcripts; if they then agreed to do that, and requested them, then, on receipt, they could pass them on.

1. 1. This was not the anticipation of the Defendant’s solicitor when she first responded to the request. I am not, in any event, satisfied that that this particular argument really goes to the issue of necessity as it is put in the test. The question is whether disclosure is necessary in order to dispose fairly of a claim, or to save costs, not whether a particular order in a particular form is necessary. Of course, disclosure might be achieved through another route, but the test seems to me whether the disclosure is necessary for the purpose I have set out, and it does not seem to me that it can be a proper objection to an order that disclosure might be achieved in another way.

1. 1. In any event, I have to say this suggestion gave me some concern. Of course, there is no property in witnesses, and it is possible that the Claimants’ solicitors could write to the witnesses. It is also conceivable that the midwives could say that they would seek the documents, as requested. In the real world, however, I would anticipate that the witnesses would revert to the Defendant’s solicitors for further advice. The Defendant’s solicitors may have to be copied in at the Claimant’s request, and would advise as to the appropriate response. Ms Mauladad told me that the Defendant would not suggest for a moment that advice would be given to the witnesses that they should not co-operate in getting the documents – and it seems to me entirely understandable why she should say this. However, in the real world, I would suggest that it is highly unlikely, or at the very least doubtful that this would be a route which would provide the disclosure that I consider is necessary for a fair trial, at least promptly. It may be that my view is derived from my own experience in practice, but these witnesses are highly unlikely to want to co-operate with the Claimants’ solicitors, who are making serious allegations against them. In short, I do not, with respect, regard this submission as being founded in reality. But as I say, in any event, I do not think it arises on my interpretation of the test.

1. 1. This takes me to the third stage which, as I have indicated, requires me to undertake a balancing exercise.

1. 1. I remind myself of the safe space principle and I acknowledge its importance. As the Directions make clear it is not the function of the Investigating Board to identify civil or criminal liability, to apportion blame, or otherwise support fault-based legal, or regulatory, or other formal action against persons whose actions come under consideration as part of its investigation. I have also had fully in mind the investigatory functions which are set out in paragraph 5 of the Directions which are directed to the investigation of risks affecting patient safety. I acknowledge that is the role of the Board, and I acknowledge the importance of the Board, and the principles which found it. As I have indicated, Mrs Lewis says that the HSIB is able to carry out effective and efficient investigations by virtue of the confidential nature of the process, and she says, as I have noted at the very outset, HSIB have a real concern that were I to make an order, that it would effectively undermine that very important function. These are, of course, important submissions for me to consider carefully,.

1. 1. There are a number of things however, that need to be said about these matters.

1. 1. First, as the Direction itself makes clear, and Ms Gumbel points out, the confidentiality which is to apply to the investigation process is subject to limitation; it is not a blanket confidentiality. The safe space principle is to be read subject to limitation at 6 (c) of the Directions that is to say where there is an overriding public interest or legal compulsion; in those circumstances, disclosures can be made although in other circumstances, the information is to be kept confidential.

1. 1. The other matter, it seems to me, that I must have potentially some regard to is the material that is provided to those who are invited to come along to the Board for interview, including the fact sheet (which is provided to any person engaged in providing or involved in care to the mother) and the document headed “The Healthcare Safety Investigation Branch”, Trust & Staff Information Pack which gives further information about the interview process under the heading What should I expect from the interview? (I am reading at page 99). It begins:

“Interviews with staff are confidential and two HSIB investigators will be present during the interview“.

1. 1. And goes on to say:

“The aim of the interview is to understand what happened, the circumstances surrounding the event and to gain an understanding of how systems, processes were put in the Trust.

We recognise staff may be anxious about being interviewed. We make every effort to put staff at ease and make the interview a positive and supportive experience.

Information provided at interview is treated as confidential, but may be disclosed in certain judicial or legal circumstances. The investigators understand that staff can often feel worried about how their information will be used and can explain in more detailed about our remit or preventing disclosure of your information, as well as talk you through any concerns you have about the process,

1. 1. It is right to say those attending interviews, clinicians in particular, are told that information will be treated as confidential, but it is also clear that they are told that this confidentiality is subject, in effect, to there being a legal compulsion by way of court order.

1. 1. Ms Stephens accepted, I think, my attempt to summarise her position as being that if I were to order the disclosure of these documents, it would undermine the process of investigation because it would inhibit individuals, clinicians, from coming forward, and would, in effect, deprive them of the ‘safe space’ that they should have; there is risk that they would not come forward in any future investigations, because they would have to be told that anything that they might say might be disclosed to a Court. But the difficulty with this is not only do the Directions provide there may be disclosure if is it required by a Court, but the leaflet informs those coming to interview that this is the case.

1. 1. In any event, putting aside the limitations on confidentiality which appear in the Directions and in the leaflet, even if there were no such limitations, I would, in the exercise of discretion, have to balance the interests of the Claimants, and, at least to some extent, the public interest in ensuring a fair trial, and balance that against the interests of those individuals who give an account, and to HSIB in preserving confidentiality.

1. 1. To my mind, Ms Gumbel is right about this. A trial judge faced with deciding this issue would need to see these documents. This is a claim of the utmost importance to the Claimants, and is, of course, important to the Defendant, this being a high-value claim, and I have no doubt balancing that interest, notwithstanding the interests of those in retaining confidentiality, it is appropriate for these transcripts or recordings to be disclosed. That is because, it seems to me, that they are central to what the judge is going to have to do, for reasons which Ms Gumbel developed and I have sought to explain. Balancing the factors very carefully, I think the need for a fair trial on the facts of the case would outweigh the interests of others in preserving confidentiality.

1. 1. I do not accept that such an approach opens the doors, as I think Ms Stephens would put it, to a general disclosure of documents created by the HSIB in its investigation. Ms Gumbel submitted that it is reasonable to anticipate that in many cases investigations will proceed on the basis that witnesses will say what was said in their notes. What they say in an interview may add very little. I do not know whether that will always be the case, but nothing I say should indicate any broad or general rule about disclosure of documents created in the course of investigation by the HSIB. Each case must be determined on these facts. It is to be emphasised that the first two stages are high bars, as Eady J made clear: necessity for a fair trial is a high bar, and I think that there is at least, without hearing any more detailed argument, a prospect that this factor would be determinative in many applications.

1. 1. There are however further points to be made which strengthen my conclusions on the balancing exercise.

1. 1. First, the fact that notwithstanding this assertion that an order for disclosure could hinder the work of the HSIB, I note the matters set out in Mrs Lewis’ witness statement concerning the maternity programme and the independent maternity safety investigations: there are some 1,000 per year, over 3,500 investigations have been progressed, leading to 1,700 safety recommendations to NHS Trust. I am entitled to assume that the leaflet that I have seen described is provided to clinicians who are warned that what they say may be provided to parties by virtue of a court order. It is not being suggested that this warning has in the past been a significant deterrent to people coming forward and assisting the HSIB. Nor does it mean the safe space principle is not a meaningful, important principle which is to be respected. So, I do not I think can be satisfied that any order I would make would have such severe consequences that it would undermine the work of HSIB.

1. 1. Further, I should refer to some of the comments in Rogers v Hoyle [2014] EWCA Civ 257, which is a decision about the admissibility of an Air Accident Investigation Branch (AAIB) report. There, the AAIB, which was responsible for preparing the report, resisted an application to rely on the report in evidence. The decision to allow its use is perhaps justified on the basis the report had already been published publicly. Nevertheless, some of the observations of Christopher Clarke LJ seem to me to have some resonance here, including in particular at paragraph 96 where he said:

“… it does not seem to me that the admissibility of these reports is likely significantly to affect the willingness of people to give information and assistance to the AAIB. Participants in this field are well aware of the importance of safety in air transport; of the independence of the AAIB; of the fact that it is not its function to attribute blame; of its statutory powers; and, also, that any report it makes will be public, so that anyone interested can see what it concludes. They have shown themselves over the years largely willing to cooperate with the AAIB without compulsion. Many of those concerned have a strong vested interest in participating in aircraft investigation, the effect of which may be exculpatory as well as inculpatory, because of their commercial interest in safety. Witnesses interviewed by the AAIB are likely to find themselves interviewed by others, such as the police or the Coroner’s officer, and the risk of being called as a witness in a criminal trial or at an inquest is likely to be of more concern than the prospect of the witness’ evidence being referred to in a report in which the witness – as is the practice – is not named, I regard the possibility of the current culture of cooperation markedly changing because reports are ruled admissible as insufficiently likely to justify exclusion of the Report”.

1. 1. It is fair to say the circumstances of that case were somewhat different from those here, but there is perhaps broad similarity as to expectation of the witnesses interviewed by the AAIB as those here, and any concerns that they may have that the transcript of their interview will be disclosed for use by a Court. In any event ,I am not sure that it can be said with confidence that witnesses would be reluctant to offer their accounts to the HSIB if it were made available to others in the event that this were necessary for a fair trial. It is be borne in mind that such disclosure must be necessary for a trial for an order to be made. Indeed, it seems to me that some interviewees who might potentially be witnesses in a trial, might welcome disclosure- as disclosure of what was said of these documents at an early stage might lessen the prospect of a trial because of the importance to be attached to contemporaneous statements.

1. 1. I should add that in the long run the disclosure of these documents might lead to a saving of costs. It will not be very costly to disclose these documents, and so I do not regard that as a matter weighing against the order.

1. 1. Further, as I have indicated, and albeit this was not the subject of much argument, as I can envisage that in many circumstances, a defendant Trust might themselves want to obtain these transcripts. They might consider that a fair trial demands that they have transcripts of a Claimant’s account. They did not in this case make any application, indeed, appeared at the hearing in some measure to resist it. This may be because they now know and have been told what the midwives said to the HSIB. Ms Gumbel did make the point that it did seem to be somewhat unfair that the Defendants had access to information as to what was said, but the Claimants did not. This was perhaps another factor relating to fairness which seems to me could weigh further in the favour the order sought.

1. 1. It is not necessary for me to go into any detail as to Ms Gumbel’s suggestion there could be real and serious inconsistencies if the Defendants were required to disclose documents such as Serious Incident Report produced as part of an internal investigation, and in the event of a death, there was disclosure in an inquest, but no disclosure of contemporaneous interviews in these circumstances. It is not necessary for me to address these potential inconsistencies and difficulties, but the point was nonetheless striking.

1. 1. As to GDPR requirements, the leaflet refers to such rights in relation to HSIB’s processing activities, but these rights are subject to court order permitting release of the information. There is some element of GDPR protection to these witnesses in the documents generated, but they are overridden by a court order where the information or documents are necessary for a fair trial.

1. 1. Finally, I am not persuaded that in my exercise of my judicial discretion that it would, in this case, be appropriate to adjourn this application pending an attempt by the Claimants’ solicitors to write to these midwives asking them to obtain these documents. There is a trial next year, and it is important that we get on with this matter, and I am not persuaded that this should deter me from making the order now sought. I have already expressed concerns as to whether it is realistic to suppose there would be co-operation in the obtaining of these documents.

1. Accordingly, in all the circumstances, I am persuaded in this case, with a severely injured claimant, where a trial is anticipated, that what is said in these transcripts is clearly central to the issue to be decided, that there should be third disclosure by HSIB of the documents now sought. That is my decision.