In the Matter of Mount Carmel Medical Group (South Dublin) Limited (In Liquidation) and in the Matter of the Companies Acts 1963 to 2012 - 7 July 2015

Judgment Date07 July 2015
Neutral Citation[2015] IEHC 450
Case OutcomeApproved
Docket Number2014 48 COS
IssuerHigh Court
Neutral Citation [2015] IEHC 450
THE HIGH COURT
[2014 No. 48 COS]
IN THE MATTER OF MOUNT CARMEL MEDICAL GROUP (SOUTH DUBLIN) LIMITED (IN LIQUIDATION)
AND IN THE MATTER OF THE COMPANIES ACTS 1963 TO 2012
JUDGMENT of Mr. Justice Keane delivered on the 7th July 2015
Introduction
1. This is the Court’s ruling on part of a n application brought by the official liquidators (“the liquidators”) of Mount Carmel Medical
Group (South Dublin) Limited (“the company”).
2. In the material part of an Order made on the 15th December 2014, the Court:
(i) Granted liberty t o the liquidators to ent er into an identified Record Transfer and Ma nagement Agreement (“the
proposed contrac t”) with St. James’s Hospital (“SJH”).
(ii) Granted liberty to the liquidators to pay out of the asset s of t he company the support and maintenance fees t o
certain identified service providers in connection wit h the operation of the c ontract .
(iii) Directed t he liquidators, following the execution of t he cont ract, to t ransfer the medical records (“the records”)
currently held by or on behalf of the c ompany to SJH.
3. The Court a djourned the application for further argument in respect of the following two other reliefs sought:
(iv) A declaration t hat SJH will become the dat a cont roller of the records with effec t from the transfe r of the rec ords.
(v) A dec laration that, in t he event of the liquidators requiring acc ess to the rec ords for the purpose of the liquidation of
the c ompany, they will be entitled to such ac cess and SJH shall be at liberty t o disclose suc h Records to t he liquidators.
4. On the 18th F ebruary 2015, the Court ordered that the Data Prote ction Commissioner (“the DPC”) be joined as a notic e party t o
the applicat ion pursuant to the provisions of Order 15, rule 13 of the Rules of t he Superior Court or the inherent jurisdiction of the
Court.
The liquidation
5. By Order made on the 5t h February 2014, the Court offic ially appointed the liquidators and directed t hat the company be wound
up. Prior to being wound up, the c ompany operated Mount Carmel Hospital in Churchtown, Dublin.
The data
6. As one would expect , the company routinely created and maintained medical records conc erning the persons treated as patients in
the hospital. T he liquidators estimate that t he company currently holds approximately 280,000 records relating to approximately
118,000 patients, dating bac k to c irca 1946. The rec ords include paper files, electronic files, x-rays, blood samples and tissue
samples. In addition, there is an x-ray server machine that holds approximately 1.7 million digital images. The liquidators have been
advised, and there c an be no doubt, that these rec ords fall within the definition of bot h “personal data” and “sensitive pe rsonal data”
under the Data Protec tion Acts 1988 and 2003 (“the DPA”), and t hat t he company is the “dat a cont roller” of the data c ontained in
those rec ords as it relates to pat ients of t he hospital as “dat a subject s” under that legislation.
7. Nor is there any doubt t hat t he special provisions of the Data Protec tion (Acc ess Modification) (Health) Regulations 1989 (“the
Regulations”) apply to the dat a cont ained in the records in so f ar as they c onstitute “health dat a” under those regulations; that is,
data relating to physical or mental health. Regulation 5(1) prohibits a data controller, such a s the c ompany, who is not a health
professional from supplying or withholding health data in response t o a data acc ess request from a data subject without first
consulting with t he appropriate health professional.
8. As of t he 20th November 2014, the liquidators had received 1,202 dat a acc ess requests.
9. The DPA do not stipulate any period for whic h data must be reta ined by a data c ontroller. Quite the c ontrary, s. 2(1)(c )(iv) of the
DPA requires that personal data shall not be kept for longer than is nece ssary for the s pecific, explicit and legitimate purpose or
purposes for which it w as obtained.
10. In identifying the neces sary data ret ention period, the liquidators point to Health Servic e Executive (“HSE”) Guidelines which, they
assert, while not legally binding, recommend that medical records be ret ained for various periods ranging up to t hirty years in some
instances and in perpetuity in the c ase of blood samples.
The obligations of the company and of the liquidators
11. There is an obvious c ost associated both with t he retention of records and with meeting the obligations imposed upon a data
controller under the DPA in respect of the personal data cont ained in such records. Bec ause the rec ords cont ain health data, t he
liquidators have ret ained on a part-t ime basis the services of a senior nurse, who they believe has the nec essary experience and
qualifications to advise, as an “appropriate health professional”, on t he extent t o which health data may be supplied in response to
any request by a data subjec t without causing harm to that person, in acc ordance with t he requirements of t he Regulations.
12. The c ost of the st orage and retrieval of the records; the employment of an appropriate health professional; and the provision of
the relevant personal dat a in response to ea ch request rank as continuing expenses in the liquidation. The liquidators acknowledge
that s uch c ost is unavoidable for as long as t he relevant rec ords are retained by the company and it remains the data c ontroller of
the personal data contained in them.
13. Conscious of t hose co sts, t he liquidators have considered, and have des cribed to t he Court, tw o specific options for addressing
the c ompany’s record storage and data prot ect ion obligations in future. The first, simply stated, is the maintenance of the st atus quo

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