Complainer wins legal aid to object to medical record release

Alleged victims of crime have the right to object to disclosure of their medical records to the accused's defence team to ensure it is restricted to the minimum necessary, the Court of Session has ruled.

Lord Glennie in the Outer House upheld a petition for judicial review by a woman, WF, who challenged the refusal of legal aid to assist her in objecting to the disclosure of her medical records to the lawyers for her alleged abuser.

The accused's team had asked the court to order delivery of WF's whole medical records, under the law that now gives an accused power to obtain documents which they believe may assist in their defence. WF wanted to object to this as an unnecessary infringement of privacy.

The only way she could obtain legal aid for this was by special application to the Scottish ministers. The ministers refused the application on the basis that WF had no right to have an objection considered by the court and that the court would automatically consider WF’s interests in deciding on the accused's request. 

Lord Glennie however held that medical records are protected under the right to privacy given by article 8 of the European Convention on Human Rights, and any disclosure must be restricted to the minimum necessary for a specific purpose to balance the interests of justice for one person against the privacy of another.

It followed that any person whose article 8 privacy rights might be infringed by a request for a court to order delivery of documents had to be notified of the request and be given an opportunity to be heard. The ministers had erred in law and were ordered to reconsider WF's application for legal aid, to allow representation at the application for disclosure of medical records. The judge also provided some guidance in how they might deal with the application by reference to the Victims and Witnesses (Scotland) Act 2014.

Sylvia MacLennan of Inksters Solicitors, who acted for WF along with counsel – giving their services pro bono prior to the judicial review hearing itself – commented: “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."

Sandy Brindley, national co-ordinator for Rape Crisis Scotland, which was allowed to intervene in the case, said: “I think it is a huge credit to the lawyers involved that they were willing to do so much work pro bono in this case. My understanding is they did this because they believed there was a significant human rights issue at stake and that what was happening was not right, in terms of a woman being served with legal papers saying her alleged abuser wanted her private records and she had no facility to get legal aid to oppose it.”

Click here to view Lord Glennie's opinion.