Campaigners back legal aid ruling on medical records

Rape victims can now get legal aid in opposing access to medical records. Picture: TSPL
Rape victims can now get legal aid in opposing access to medical records. Picture: TSPL
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Campaigners have welcomed a ruling that legal aid should be made available to those seeking to keep their medical records private.

Lord Glennie made the determination after the accused in a domestic abuse case sought the “medical, psychiatric and psychological records” of his accuser covering a seven-year period.

The woman, known in court documents as WF, is the alleged victim of seven charges of assault and domestic abuse dating from 2008 to 2011.

She had applied for legal aid so that she could be represented at a hearing before a sheriff when the accused’s petition for her medical records was to be considered.

However, the Scottish Government refused the application, arguing she had no right to be heard or represented in front of the sheriff on that application.

In his ruling, Lord Glennie said any person whose human rights could be infringed through the recovery of their medical records must have the “opportunity to be heard in opposition to the application before an order is made or, at least, before the documents are handed over to the party seeking them”.

He added: “If the complainer has a right to be heard, whether initially at some later stage, it must follow that she is entitled to legal representation. That raises the question of whether she is entitled to be publicly funded for such representation.”

He then overruled the decision of Scottish ministers to refuse legal aid in the case.

Rape Crisis Scotland said the judgment was “a very significant step” in protecting the rights of complainers.

Sandy Brindley, the charity’s national co-ordinator, said: “Rape Crisis Scotland has serious concerns about the use of complainers’ medical records in sexual offence trials.

“We urge Scottish ministers to take note of Lord Glennie’s emphasis on the need for complainers to have their human rights protected effectively.

“The Scottish Government must put in place clear rules governing access to medical or other sensitive records.”

Solicitor Sylvia MacLennan, who represented the woman in the case, said: “This is a very important decision for both victims of crime and those accused of a crime.

“On one hand, no victim of crime should be put off from reporting it for fear that the perpetrator will have free access to their private information. On the other hand, those accused of a crime will still have a right to ask a court to order the release of information which is needed to ensure a fair trial.”