Abertawe Bro Morgannwg University Local Health Board v Korashi

Factual and Procedural Background

This opinion concerns an application by the Defendant, a former Staff Grade doctor employed by the Claimant, a local health board, to set aside a summary judgment entered against him following a hearing in his absence. The judgment, delivered by His Honour Judge Peter Clark on 27 May 2011, granted summary judgment for the Claimant, struck out the Defendant's counterclaim, and granted a Norwich Pharmacal order for disclosure. The Defendant was absent due to illness and the terminal illness of his wife, though the judge found he could have attended and refused an adjournment. The Claimant’s original application dates back to 29 January 2010 but was not heard until May 2011.

Between January 2002 and March 2008, the Defendant was employed by the Claimant as a doctor in Obstetrics and Gynaecology. He made repeated complaints against a fellow doctor, referred to as Mr A, alleging that Mr A was unqualified to perform certain operations, particularly cancer-related surgeries, and that patients were not informed of these facts. The Defendant had access to confidential patient records held by the Claimant, including an electronic database called "Theatre," from which he copied information used to support his complaints and legal proceedings.

The Claimant sought an injunction restraining the Defendant from using confidential patient information to contact former patients of Mr A or their relatives. Interim injunctions were granted in 2008 and upheld against attempts by the Defendant to vary or discharge them. The Defendant contended that patients had a right to know about Mr A's alleged lack of qualifications and that he was entitled, even duty-bound, to disclose this information.

The Defendant applied to set aside the summary judgment, though it was accepted that he had complied with the Norwich Pharmacal disclosure application, making that part of his application moot. The proceedings also involved extensive litigation history, including unsuccessful judicial review applications and employment tribunal claims involving allegations of discrimination and whistleblowing.

Legal Issues Presented

1. Whether the information on the Claimant's Theatre database about its patients and their treatment is confidential to the Claimant.
2. Whether the Defendant has such confidential information in his possession.
3. Whether the Defendant is entitled to have and use this information.
4. Whether any factors exist that outweigh the Claimant’s rights to restrain the Defendant from retaining and using the confidential information to contact former patients or their relatives.
5. Whether the summary judgment against the Defendant should be set aside based on his absence and the merits of his case.

Arguments of the Parties

Defendant's Arguments

• The Defendant argued that former patients of Mr A are entitled to know that Mr A was not qualified or competent to perform certain treatments or operations and that they were misled when consenting.
• He contended that he was entitled, and under a duty, to disclose this information to patients or their relatives, especially since the Claimant refused to do so.
• His representative submitted that there was a strong public interest in disclosure of medical malpractice and that the Claimant was using the proceedings to stifle disclosure.
• He asserted that the Defendant’s possession of confidential information was merely a pretext to prevent him from speaking out about malpractice.
• The Defendant accepted that disclosure might cause stress but claimed the benefits outweighed this, including respect for patients’ human rights and the right to pursue civil or criminal remedies.

Claimant's Arguments

• The Claimant argued that the confidential patient information was shared between the Claimant and the patients and that the Defendant had no right to copy or use it outside the course of his employment.
• The Claimant sought to restrain the Defendant from using or disclosing confidential information to contact patients or their relatives without consent.
• The Claimant contended that the Defendant’s allegations had been the subject of multiple investigations by independent bodies, including the General Medical Council (GMC), and found to be unsubstantiated or appropriately managed.
• They submitted that the Defendant’s counterclaim disclosed no reasonable cause of action and should be struck out.
• The Claimant maintained that disclosure to patients was a matter of medical judgment, not for the court to decide, and that the Defendant’s use of confidential information was unlawful.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining the merits of the Defendant’s case, noting the extensive history of investigations into Mr A's qualifications and conduct by independent bodies, including the GMC and the Royal College of Obstetricians and Gynaecologists. These investigations largely found that Mr A required some additional training but was competent within his scope of practice, and no significant evidence of malpractice causing harm was established except in two isolated cases, which were either litigated or did not involve unqualified practice.

The court recognized the Defendant’s genuine concerns for patient safety but concluded that the Defendant had no legal entitlement to retain or use confidential patient information obtained during employment, especially to contact patients or their relatives without consent. The court rejected the Defendant's argument that he owed a duty to inform patients directly of Mr A’s alleged shortcomings, emphasizing that any duty to disclose medical malpractice lies with appropriate medical authorities rather than individual doctors acting unilaterally.

The court also addressed the Defendant’s counterclaim, which sought various orders including police investigations and notifications to patients, finding it disclosed no reasonable cause of action and was substantially a re-litigation of issues already decided in other proceedings. The speculative nature of the allegations and the absence of demonstrated harm meant there was no triable issue.

Regarding the Defendant’s absence at the original hearing, the court applied the principle from Riverpath Properties v Bramall that a judgment made in absence would not be set aside unless there was a real prospect of success. Given the merits of the case, the court found no such prospect.

The court acknowledged the public interest in disclosure of medical malpractice but found that this interest was adequately addressed by independent investigations and that disclosure to patients was a matter of medical judgment, not for the court to order. It also noted the risk of causing unnecessary stress to patients and that the Defendant lacked objectivity to determine the benefits of disclosure.

The court concluded that the Claimant's common law rights to confidentiality and the return of its information outweighed the Defendant’s claims, and no abuse of process or undue delay justified setting aside the judgment.

Holding and Implications

The application by the Defendant to set aside the summary judgment of His Honour Judge Peter Clark dated 27 May 2011 is dismissed.

The court’s decision maintains the injunction restraining the Defendant from using or disclosing confidential patient information and confirms the striking out of the Defendant’s counterclaim. The ruling upholds the Claimant’s rights to confidentiality and control over patient information and affirms that disclosure to patients concerning a doctor’s qualifications is a matter for medical authorities rather than individual employees. No new precedent was established; the decision primarily enforces established principles of confidentiality, judicial discretion in setting aside judgments, and the limits of judicial intervention in medical disclosure matters.