Law Report: TB patient's anonymity limited: Birmingham Post and Mail Ltd v Birmingham City Council - Queen's Bench Divisional Court (Lord Justice Mann and Mr Justice Holland), 12 November 1993

A court's power to withhold from the public the name and address of a person involved in legal proceedings was a constrained power whose exercise was only justified to the extent necessary to serve the ends of justice. Once the proceedings were over and the interests of justice were no longer involved, a wish to protect privacy or avoid embarrassment was not sufficient ground for further continuance of the prohibition.

The Queen's Bench Divisional Court allowed an appeal by Birmingham Post and Mail Ltd, on a case stated by Mr Bruce Morgan, a stipendiary magistrate sitting in Birmingham on 20 and 21 November 1991, against his decision to prohibit, under section 11 of the Contempt of Court Act 1981, publication of the name and address of an alleged tuberculosis patient, X, who was the subject of proceedings under section 37 of the Public Health (Control of Disease) Act 1984.

Section 37 empowers a justice of the peace, on the application of a local authority, to make an order, if necessary ex parte, for the removal to a hospital of someone suffering from a 'notifiable disease' such as tuberculosis, in order to prevent the spread of dangerous infection. Section 11 obliges a registered medical practitioner to inform his local authority of a patient ofwhom he is aware, or suspects, is suffering from TB.

Birmingham City Council, having been informed that X had TB and that his four children, all under 17, were also infected, applied ex parte for a hospitalisation order under section 37. The magistrate refused to adjourn the proceedings into chambers or hear them in camera, but made an order prohibiting, until further order, publication of X's name and address or any other information likely to identify him. He then made a hospitalisation order under section 37.

Next day, the appellant, a local newspaper publisher, applied to vary or discharge the prohibition order on the ground of public interest. The magistrate refused on the grounds, inter alia, that disclosure could cause unnecessary panic and concern, that X's family might be victimized, that the court had a duty to protect the interests and welfare of X's children, and that X had not consented to the release of information disclosed in confidence to his doctor.

Manuel Barca (Pinsent & Co) for the appellant; Philip Havers (Treasury Solicitor) as amicus curiae.

IN THE JUDGMENT of the court, a magistrate acting under section 37 of the 1984 Act was acting as a 'court' within the meaning of section 11 of the 1981 Act and had power to allow the patient's name to be withheld from the public. But it was a constrained power, whose exercise, since it involved a departure from the principle of open justice, was only justified to the extent that he reasonably believed it to be necessary to serve the ends of justice: see A-G v Leveller Magazine (1979) AC 440 at 449H per Lord Diplock.

In considering whether publication would frustrate the administration of justice or damage some other public interest, it must be remembered that a section 37 application could be made ex parte, and involved a statutorily enabled breach of the normal obligation of confidentiality between doctor and patient. The possibility of such a breach might make an informed patient cautious of seeking medical advice over symptoms of what was regarded, rightly or wrongly, as an opprobrious disease: see X v Y (198) 2 All ER 648 at 653.

Courts should act fairly and it was unfair to allow publication of the name and address of a person against whom an ex parte order was made under the exceptional jurisdiction conferred by the 1984 Act. But once all reasonable opportunity to challenge that order had passed, the event of the order became historic. No interest of justice was any longer involved. Any wish to protect privacy or avoid embarrassment was not a ground for further continuance of the prohibition.

The appeal would be allowed, therefore, on the ground that the prohibition order should have been limited in time.