AS TO THE ADMISSIBILITY OF
Application No. 31024/96
by Joy WILLSHER
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 9 April 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 January 1996
by Joy WILLSHER against the United Kingdom and registered on
16 April 1996 under file No. 31024/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1949 and resident in
Port Talbot. She suffers from a congenital brain abnormality, known as
phenyl ketonuria. In the proceedings before the Commission she is
represented by Mrs. Beryl J. Power, her sister, who is her nearest
living relative and who, in turn, has instructed Mr. Luke Clements, a
solicitor practising in Hereford.
The facts of the case, as they have been presented by the
applicant, may be summarised as follows:
The applicant, due to her mental condition, cannot live on her
own. For many years she lived with her mother. In 1978 the Protection
Court appointed the applicant's sister as receiver in respect of
specified matters relating to the applicant's financial affairs.
Since 1989 the applicant lives at 5 Toronto Avenue in
accommodation secured by the Social Services Department of the West
Glamorgan County Council, pursuant to their duty under section 21 of
the National Assistance Act 1948. The house at 5 Toronto Avenue is
managed by an independent industrial and provident society.
On 21 June 1994 the applicant's sister made a formal complaint
to the County Council, pursuant to the statutory complaints procedure
established under the National Health Service and Community Care
Act 1990. She complained that the applicant was being allowed out of
the house unsupervised, that male carers were involved in the
applicant's dressing, using the toilet and other personal hygienic
tasks and that the applicant had gone on holiday abroad with only a
male carer as escort. In a report dated 14 September 1994 the Council
rejected the complaints. The applicant's sister appealed. On
14 February 1995 the Review Panel found that at no time had there been
any suggestion that the applicant might have been subjected to any kind
of abuse. It also rejected the complaints about invasion of the
applicant's privacy and considered that the level of involvement of
male carers did not raise any serious problems.
In February 1995 two members of staff at 5 Toronto Avenue
complained to the society which managed the house over the way that
residents had been treated by a male care assistant, Mr. C.M. During
a telephone conversation with an officer of the Social Services
Department of the local Council, the husband of the applicant's sister
was informed that there were allegations concerning the manner in which
C.M. had treated the applicant and, in particular, one incident
involving him raising the applicant's dress. He was also informed that
there were allegations similar to the concerns over personal privacy
earlier raised by the applicant's sister and an allegation that on one
occasion the applicant had been slapped by another care assistant.
Moreover, he was told that the social services of the Council were
treating the case as one of suspected abuse.
The County Council instructed Mr. S.H., one of its social
workers, to carry out an inquiry into the allegations. As a result, a
number of potential witnesses were interviewed and a report was
prepared by the social worker in question. The matter was also referred
to the police and an investigation was carried out by police officer T.
On 16 February 1995 the applicant's sister and the sister's
husband attended a case conference at which the social worker who had
carried out the inquiry listed a number of allegations including an
allegation that C.M. had a predilection for sniffing the buttocks of
female residents. He also stated that there were allegations concerning
lack of privacy of female residents similar to the concerns earlier
raised by the applicant's sister. Following the meeting, new guidelines
as to the employment of male staff at 5 Toronto Avenue were agreed.
A second case conference was held on 15 May 1995 at which police
officer T. reported on the state of his investigations, which had not
been completed, because he still had to interview two members of staff
of 5 Toronto Avenue. According to the police officer, male members of
staff were present during female residents' using the toilet and
bathing, but there was no evidence that they were involved in these
processes. However, any allegation of sexual abuse could easily be
supported by the existing working practices at 5 Toronto Avenue.
Moreover, it had been confirmed that it was C.M.'s practice to sniff
the backside of residents, male and female. C.M.'s behaviour was only
just within the bounds of being non-criminal. There existed information
that a pornographic book had been brought into the house and
information that isolated incidents of bullying and verbal abuse had
occurred. Allegations that drugs had been used on the premises by the
previous home-leader had not been substantiated, although staff seemed
aware that she used drugs at home. On the whole, police officer T. was
of the view that the investigations carried out so far indicated that
nothing had happened that was sufficient to make a case that a criminal
offence had been committed.
The police officer also discussed the slapping incident with the
applicant's sister and the sister's husband who accepted that the
circumstances indicated that a criminal prosecution was inappropriate.
Finally, the police officer indicated that his investigation would
continue probably for two additional weeks. The representative of the
social services of the County Council promised a multi-strand,
comprehensive review and the society managing the house was invited to
take appropriate disciplinary measures. When the husband of the
applicant's sister requested a copy of the social worker's report, he
was told that advice would be taken on the matter.
On 14 June 1995 the applicant's sister and the sister's husband
requested disclosure of the social worker's papers from the County
social services. On 4 July 1995 the social services replied that the
request was premature in the light of the Crown Prosecution Service's
ongoing consideration of the matter. The social services also indicated
that they would have to be satisfied that the applicant's sister and
the sister's husband had the capacity to request the information in
question.
In early July 1995 the police officer in charge of the
investigations told the husband of the applicant's sister that the
latter would find the social worker's report very useful in his
discussions with the social services.
On 16 August 1995 the applicant's sister and the sister's husband
asked the social services to indicate who would be the appropriate
person for making a request for disclosure. On 25 August 1995 the
social services replied that no one was capable of requesting such
disclosure. On 1 September 1995 the applicant's sister and the sister's
husband were informed that the Crown Prosecution Service had decided
that no criminal proceedings would be instituted.
On 15 September 1995 the applicant's sister and the sister's
husband renewed their request for information on the social worker's
inquiry. On 5 October 1995 the County Council indicated that it was not
prepared to disclose the social worker's report because it contained
personal information about other residents and was not part of the
applicant's file. On 10 October 1995 the applicant's sister and the
sister's husband reiterated their request and also asked to have access
to the applicant's personal file. On 23 October 1995 the Council
clarified their position, indicating that they objected to disclosure
of the applicant's personal file on the basis that, in the absence of
an order from the Court of Protection, the applicant's sister and the
sister's husband had no standing to request it. They also objected to
disclosure of the social worker's report on the basis that it was not
part of the applicant's file and remained property of the Council.
On 25 October 1995 the applicant's sister and the sister's
husband sent the County Council a copy of the 1978 order made by the
Protection Court. On 31 October 1995 the Council replied that the order
did not give the applicant's sister the power to have access to the
applicant's files.
On a date which has not been specified, the applicant's sister
and the sister's husband obtained a copy of a report by the County
social services dated August 1995 in which it was indicated that the
social services were in possession of various documents relating to the
inquiry into the allegations concerning 5 Toronto Avenue. In the same
document it was further indicated that there was an inference that
sexual abuse or inappropriate behaviour might have taken place on a
night when the applicant had reportedly complained that she had been
kept awake by a member of the staff.
A third case conference took place on 20 October 1995. No further
relevant information was revealed.
On an unspecified date, the applicant obtained a legal aid
certificate, through her sister, in relation to proposed proceedings
for compensation for negligence against West Glamorgan County Council
and/or the society managing 5 Toronto Avenue. The certificate was
limited to obtaining further evidence and thereafter counsel's opinion
as to the merits and quantum.
On 11 December 1995 a barrister advised the applicant on the
existence of a domestic remedy to challenge the refusal of the County
Council to disclose her file and the papers relating to the social
worker's inquiry. Counsel considered that there were two potentially
relevant routes, an application for pre-trial discovery and a request
under the Access to Personal Files (Social Services) Regulations 1989,
which had been enacted pursuant to power conferred by the Personal
Files Act 1987.
In the barrister's opinion, a pre-action application for
discovery would not succeed because there was no evidence of any
personal injury having been suffered by the applicant and no evidence
of any personal injury having been suffered as a result of any act or
omission on the part of the County Council or the society managing
5 Toronto Avenue. As a secondary consideration, the barrister pointed
out to the possibility that the respondents in the application would
assert public interest immunity in respect of the documents in issue.
Insofar as the Personal Files Act 1987 and the Access to Personal
Files (Social Services) Regulations 1989 were concerned, the barrister
considered that there was no prospect of a successful claim for
judicial review of the County Council's refusal to disclose the
information requested. The statutory instruments in question made no
provision concerning situations where information held by a public
authority relates to an individual who lacks the capacity to make a
request. The County Council had applied the correct legal tests and,
in other respects, had not acted in any way amenable to judicial
review.
However, the barrister considered that there was an outstanding
question as to whether the Court of Protection could empower the
applicant's sister to seek access to the applicant's personal
information on her behalf, as envisaged in a circular from the Welsh
Office providing guidance on the Access to Personal Files Act 1987 and
the Access to Personal Files (Social Services) Regulations 1989.
On 28 February 1996, the applicant's sister sought an order from
the Court of Protection empowering her to receive the information in
question. On 25 March 1996 the Court of Protection authorised the
applicant's sister on the applicant's behalf to inspect and receive
copies of the papers and documents and other information on the
personal file held by the Social Services Department of West Glamorgan
County Council and to receive on the applicant's behalf a copy of the
Social Services report prepared as a result of an investigation carried
out by Mr. H in respect of 5 Toronto Avenue.
On 17 July 1996 the Neath Port Talbot County Borough Council,
to which responsibility over the applicant had passed due to Local
Government reorganisation, informed the applicant's sister that she
could have access to information in the applicant's file "insofar as
such information could be disclosed to (the applicant) herself under
the Access to Personal Files (Social Services) Regulations 1989". The
applicant's sister was further informed that the Council was seeking
Counsel's advice on what aspects of the applicant's file could properly
be disclosed and on the status of what was described as Mr. H's (the
social worker's) report.
On 19 December 1996 the Council invited the applicant's sister
to inspect the applicant's personal file. The Council informed the
applicant's sister that the file had been edited, adopting the same
procedure as if the applicant herself were to have sought access.
Moreover, the applicant's sister was warned that inspection was on the
basis that the file would not be disclosed or copied to another person.
On 14 January 1997 the applicant's sister objected to the
conditions attached to her obtaining copies from the file, including
the requirement to attend in person. She reiterated her position that
she sought access to "the personal information" held by the authority,
which was not limited to "the applicant's file". Moreover, she required
a statement of all personal information which had been "edited" and
which would not be available, in order to be able to challenge any
decision the authority might have made not to disclose it.
COMPLAINTS
1. The applicant complains under Articles 8 and 10 of the Convention
that she cannot have access to information about herself which is held
by a public authority. Insofar as Article 10 is concerned, the
applicant submits that her case is distinguished from Gaskin v. the
United Kingdom (judgment of 7 July 1989, Series A no. 160), because
the State is under a positive obligation to impart the information
concerning the applicant, given the nature of this information and the
applicant's mental state.
2. The applicant also complains under Article 13 of the Convention
that there is no remedy under domestic law by which she can enforce
disclosure of the information in issue. The application to the Court
of Protection was a discretionary remedy which did not provide the
applicant with full redress.
3. The applicant further complains of a violation of Article 1 of
Protocol No. 1. She claims that, as a result of the State's withholding
access to the information in question, she is denied the potential
right to compensation for the injuries and violation of her dignity
which she may have suffered.
4. Finally, the applicant complains of a violation of Article 14 of
the Convention in conjunction with each of the above-mentioned
provisions, in that she is discriminated in the enjoyment of the above-
mentioned rights because of her lack of mental capacity.
THE LAW
1. The applicant complains under Article 8 (Art. 8) of the
Convention that she cannot have access to information about herself
which is held by a public authority. In particular, she complains of
the failure of her local authority to disclose to her sister the
contents of her file, as well as a report compiled by a social worker,
Mr. H., and certain documents referred to in the August 1995 social
services' report.
Article 8 (Art. 8), insofar as relevant, provides as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence."
The Commission notes that the applicant is a person suffering
from a brain abnormality over which the local authority has certain
responsibilities under domestic law. It is in the exercice of these
responsibilities that the local authority has compiled certain
information about the applicant. The issue which must be, therefore,
determined is whether the United Kingdom, in handling the requests
submitted on behalf of the applicant for access to information, was in
breach of a positive obligation flowing from Article 8 (Art. 8) of the
Convention.
The Commission recalls in this connection that, although some
persons "have a vital interest" in receiving information concerning
themselves which are in the possession of a public authority,
"confidentiality of public records is of importance for receiving
objective and reliable information, and that such confidentiality can
also be necessary for the protection of third persons" (Eur. Court HR,
Gaskin v. United Kingdom judgment of 7 July 1989, Series A no. 160,
p. 20, para. 49).
Moreover, the Commission notes that the local authority finally
agreed to grant the applicant's sister access to the applicant's file.
Although the authority accepts that some information has been "edited",
there is no indication that this was done with an aim other than to
protect information about third persons. Furthermore, the applicant's
sister has not accepted the offer to inspect the file and, as a result,
she has deprived herself of any opportunity of assessing whether
relevant information is being withheld.
The Commission also notes that the applicant's sister has taken
part in three case conferences with H and claims to be in possession
of the August 1995 social services' report, which she has not disclosed
to the Commission. However, she has not been able to provide any
indications about the nature of the information concerning the
applicant which, not being part of her file, might have been contained
in H's report and the other documents referred to in the August 1995
report. Insofar as the applicant may be understood as submitting that
these documents should have been made available to her sister even in
the absence of any such indications, the Commission considers that
Article 8 (Art. 8) cannot be interpreted as requiring access to any
document in the possession of a public authority which an individual
may wish to consult.
In these circumstances, the Commission considers that it has not
been established that the United Kingdom has handled the requests
submitted on behalf of the applicant for access to information in a
manner which did not comply with positive obligations which might be
flowing from Article 8 (Art. 8) of the Convention. It follows that no
appearance of a violation of Article 8 (Art. 8) of the Convention is
disclosed and this part of the application must be rejected as
manifestly ill-founded in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant complains that her lack of access to the
information in question also amounts to a violation of her right under
Article 10 (Art. 10) of the Convention.
Article 10 para. 1 (Art. 10-1) of the Convention provides as
follows:
"Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers."
The Commission recalls that, in the case of a person who was
claiming access to public records concerning the time he had spent as
a child in public care, the Court considered that Article 10 (Art. 10)
does not embody an obligation on a State to impart such information
(see above-mentioned Gaskin v. United Kingdom judgment, op. cit., p.
21, para. 52). The Commission considers that the same applies in the
case of the applicant. It follows that no appearance of a violation of
Article 10 (Art. 10) is disclosed and this part of the application must
be rejected as manifestly ill-founded in accordance with Article 27
para. 2 (Art. 27-2) of the Convention.
3. The applicant complains under Article 13 (Art. 13) of the
Convention that there is no remedy under domestic law by which she can
enforce disclosure of the information in issue.
The Commission recalls that Article 13 (Art. 13) of the
Convention guarantees the right to an effective remedy to persons who
have an arguable claim that their rights under the Convention have been
violated (No. 14132/88, Dec. 13.4.89, D.R. 61 p. 285). However, this
is not the applicant's case, insofar as her rights under Articles 8 and
10 (Art. 8, 10) are concerned. It follows that this part of the
application must be also rejected as manifestly ill-founded in
accordance with Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant complains under Article 1 of Protocol No. 1
(P1-1) that, as a result of the State's withholding access to the
information in question, she is denied the potential right to
compensation for the injuries and violation of her dignity which she
may have suffered.
However, the Commission considers that neither the Convention nor
any of its Protocols guarantee a right to compensation in such
circumstances. It follows that this part of the application is
incompatible ratione materiae and must be rejected as incompatible with
the provisions of the Convention in accordance with Article 27 para. 2
(Art. 27-2).
5. The applicant complains under Article 14 (Art. 14) of the
Convention that she is discriminated in the enjoyment of her rights
under the Convention because of her lack of mental capacity.
Article 14 (Art. 14) of the Convention provides that the
enjoyment of the rights and freedoms set forth in this Convention shall
be secured without discrimination on any ground such as sex, race,
colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth
or other status.
Insofar as the applicant complains that she is discriminated in
her right to receive compensation, the Commission recalls that such a
right is not guaranteed by the Convention or its Protocols. It follows
that this part of the application must be also rejected as incompatible
with the provisions of the Convention in accordance with Article 27
para. 2 (Art. 27-2).
6. Insofar as the applicant complains of discrimination in the
enjoyment of her rights under Articles 8, 10 and 13 (Art. 8, 10, 13)
of the Convention, the Commission notes that the local authority has
agreed that the applicant's sister could have the same access to
information in the applicant's file as the applicant would have had
herself under the Access to Personal Files (Social Services)
Regulations 1989, if she had been of full mental capacity. Moreover,
there is no indication that the applicant would have had access to the
other documents, if she had not lacked mental capacity. It follows that
the applicant's lack of mental capacity has not resulted in any
different treatment as regards access to information held by the local
authority. Nor has the applicant established that domestic law provides
for less remedies to a person of her mental capacity in respect of
access to information.
As a result, this part of the application must be rejected as
manifestly ill-founded in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy