Although the Crown Court was not expressly obliged by the Criminal Procedure (Attendance of Witnesses) Act 1965 and the Criminal Procedure Rules 2005, SI 2005/384 to give notice of an application for a witness summons directed at a NHS trust to the patient whose records were sought to be disclosed, the overriding objective of the Rules required it.
The Divisional Court granted declarations sought by the claimant, B, in connection with proceedings in the Crown Court in which she was due to be a witness.
B, who was aged 14, was to be the main prosecution witness in the trial of a man, W, who was charged with sexual offences in relation to her. In the months leading up to the trial B had been receiving psychiatric treatment.
W's solicitors asked the Crown Court for a witness summons directed to the trust treating her requiring the production of B's medical and hospital records to be issued under section 2(1) of the Criminal Procedure (Attendance of Witnesses) Act 1965. That summons had to be made in accordance with the Criminal Procedure Rules.
At a public interest immunity hearing, the trust expressed the view that confidentiality between doctor and patient belonged to the patient and not the trust. The judge considered that the evidence from the medical notes that B had attempted suicide and that she was having difficulties was plainly relevant to her credibility. He said that he had a balancing exercise to perform, one side of which was to make sure that W had a fair trial and that that had to take precedence over confidentiality issues. The judge ordered disclosure.
After representations were made by the Official Solicitor, the judge decided to invite B to attend court, in order to find out her view on disclosure. She attended court without any arrangement in place for her to be represented, and reluctantly agreed to disclosure.