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Balancing the need to protect individual privacy against those of public interest, is both difficult and often painful for the party that loses. When a healthcare worker retires through ill-health, it is under a truth that HIV infection was the primary cause for departure.
The employer concerned, followed procedural rules during the ending of the relationship, but later found themselves torn between performing an obligatory ‘look back’ exercise, requiring contact with patients that had been assigned the retirees care when carrying our their duties, and assisting with the request that the former healthcare worker’s privacy be respected (the former element was still uncertain due to a change of guidelines and therefore such actions may have proven unnecessary pending the revised policy). The escalating factor in this appeal case, was the knowledge that while the infected worker was contractually obliged to submit the medical records of those treated under the NHS, a reasonable percentage of the remaining patients were seen privately, and therefore liable for protection against disclosure under the Data Protection Act 1998.
Shortly after the ‘look back’ request was made, the former employee secured a court order preventing any publication of patient records that might allow for disclosure of the infected party, on grounds of unlawfulness and a fundamental right to individual privacy. After a newspaper learned of the matter, it published an article on grounds of public interest, although in breach of a previously issued restraining order, and aware that disclosure of the health authority at least would soon allow readers to make educated guesses as to the identity of the infected party. This then led to action being taken against the newspaper, on the footing that the previously published article had indirectly disclosed the identity of the healthcare worker through disclosure of the gagging order and the subject to which it applied.
There were of course a number of other factors that required diligence from the courts, but the essence of the argument also addressed very sensitive and fear-laden concerns that threatened disproportionate cost implications upon the State, along with a risk of flagrant sensationalism. On this occasion, the court ruled that until such time as the new guidelines were issued, the newspaper must reduce the identities of both the employer and employee to initials, which would allow the nature of the matter to become publicly accessible, while concealing the names of the two parties involved; and that should the new guidelines require absolute disclosure of medical records, private or otherwise, the infected party must comply.
“[I]f healthcare workers are not to be discouraged from reporting that they are HIV positive, it is essential that all possible steps are taken to preserve the confidentiality of such reports.”
“We would view with concern any attempt to invoke the power of the Court to grant an injunction restraining freedom of expression merely on the ground that release of the information would give rise to administrative problems and a drain on resources. Such consequences are the price which has to be paid, from time to time, for freedom of expression in a democratic society.”
“If an investigative journalist were to put two and two together, the injunction would still restrain any publication of material that would lead to the deduction of H’s speciality or of when he was diagnosed as HIV positive.”