A woman has been sentenced to an immediate term of imprisonment of 12 months after a High Court judge found she had forged a purported court order and sent it to an NHS trust with the intention of obtaining the medical confidential records of a relative, despite the court refusing to direct this.
In P v Griffith  EWCOP 46 Mr Justice MacDonald said the action of Ms Griffith “constituted a very serious interference with the due administration of justice”.
“I am further satisfied beyond reasonable doubt that [Ms] Griffith took this action with the intention of interfering with the due administration of justice, her applications for the disclosure provided for by the purported order having previously been refused by the court on a principled basis,” he added.
The substantive Court of Protection proceedings from which the alleged contempt arose concerned P, a 50-year-old woman who resides at a specialist hospital on a long term care ward.
She was admitted to that hospital on 17 September 2018 having previously been at a different hospital from 28 May 2018. On 28 January 2018 P suffered a bilateral stroke which caused significant brain damage, leaving her with profound cognitive impairment. P has a diagnosis of a permanent disorder of consciousness of the type known as Minimally Conscious State Minus.
Within the proceedings in the Court of Protection, Ms Griffith was the applicant.
The proceedings, in which P was represented by the Official Solicitor, concerned a dispute between Ms Griffith and the other parties as to P's condition and prognosis and as to her best interests in relation to her medical treatment, her residence and care and in relation to whether she should be subject to a DNR CPR notice.
On 8 April 2020, following a final hearing before Mr Justice Cohen, the court made final declarations. In addition to the making of final declarations, Ms Griffith's application was dismissed by Cohen J. Her application to the Court of Appeal for permission to appeal was dismissed by Lady Justice King on 10 July 2020.
Mr Justice MacDonald noted that no order had been made by HHJ Hilder that provided for disclosure of P's medical records to Ms Griffith. “Moreover, as at 22 August 2019 HHJ Hilder had expressly declined to grant two applications made by Ms Griffith for disclosure to her of P's medical records.”
However, on 18 October 2019 Ms Griffith sent an email to Barts Health NHS Trust attaching what purported to be a court order made on 10 July 2019.
In the body of the email, Ms Griffith informed Barts Health NHS Trust that she was "submitting the above stated form and associated proofs required" and that "she had been alerted to the fact that I needed to approach this organisation for the information myself".
The purported court order provided for the disclosure of P's medical records directly to Ms Griffith from Barts Health NHS Trust. The purported order bore no court seal and contained none of the recitals that characterised the third party disclosure orders made by HHJ Hilder.
“The court confirmed in December 2019 that no such order for disclosure is held on the court file and that no such order for disclosure had, in fact, been made by the court,” Mr Justice MacDonald said.
Whilst as at 10 July 2019 Ms Griffith was acting in person, by 18 October 2019 she had engaged a law firm. Barts Health NHS Trust acted in good faith on the purported order attached to Ms Griffith's email of 18 October 2019 and disclosed P's medical records to that firm.
On 6 November 2019 further orders were made by Cohen J enabling the Official Solicitor and the solicitors retained by her, Mackintosh Law, to obtain P's records from St Georges University Hospitals NHS Foundation Trust and Barts Health NHS Trust.
When Mackintosh Law made the request to Barts Health NHS Trust pursuant to the order of Cohen J, Barts Health NHS Trust informed Mackintosh Law that it had already received a request for P's medical records from Ms Griffith, which request included a copy of a court order.
When this came to light, the Official Solicitor sought permission to apply for committal for contempt.
Having found the contempt proved, Mr Justice MacDonald adjourned the question of sentencing for the contempt for two days, in order to allow Ms Griffith a further opportunity to attend court. She did not attend the resumed hearing, saying she had an illness. Ms Griffith said she had a medical note but none was supplied to the court.
The High Court judge said he bore carefully in mind mitigation advanced by Ms Griffith’s counsel including that:
- Whilst misguided and mistaken, in taking the actions she did, Ms Griffith considered herself to be trying to protect her relative P in the context of the issue before the court being the medical treatment of P, which included consideration of the appropriateness of a DNR notice for P.
- Ms Griffith's actions resulted in a low level of harm to P in circumstances where the records disclosed as a result of the forged order presented by Ms Griffith were sent to Ms Griffith's then solicitors and not to Ms Griffith herself, it being possible that Ms Griffith was responsible for this outcome.
- By reason of the COVID-19 pandemic, at the present time a given sentence of imprisonment was significantly more punitive (by reason of the lockdown restrictions that are imposed in prison with a concomitant limitation on exercise and time out of the cells) than it would be during normal circumstances.
- Ms Griffith was of previous good character and had never before experienced prison.
The Official Solicitor also made clear through counsel that she had no wish to see Ms Griffith sentenced to a term of imprisonment but felt compelled to bring the conduct of Ms Griffith before the court by way of an application for committal on behalf of P given the gravity of that conduct.
Judge MacDonald said:
"47. Against these matters, Ms Griffith acted intentionally in forging a court order in order to obtain disclosure which the court had denied her. Ms Griffith's action in forging a court order, whilst not resulting in her receiving P's medical records, resulted in confidential medical records to which she was not entitled being disclosed to her solicitors. It was only a matter of chance that Ms Griffith actions were discovered when a legitimate order was made by the court. Within this context, P was, to a certain extent, prejudiced by Ms Griffith's contempt, particularly in circumstances where medical records are confidential to the individual and it is crucial to respect the privacy of a patient (see Z v Finland (1997) 25 EHRR 371). These actions by Ms Griffith were undertaken in the face of repeated, principled decisions of the court that Ms Griffith should not have such disclosure. In the circumstances, a high degree of culpability must attach to Ms Griffith's actions which, as I have noted, were deliberate in nature. Ms Griffith has shown no remorse for these actions, and indeed has failed to co-operate with the court by attending court in response to the application to commit her. There is no indication that she appreciates the gravity of her conduct.
48. Further, the act of forging a court order strikes at the very heart of the due administration of justice. The need for litigants and third parties to be able to have confidence in the integrity of orders made by the court is fundamental not only to the integrity of individual proceedings but to the maintenance of the rule of law. Any course that acts to undermine confidence in the integrity of court orders is accordingly highly corrosive of both the administration of justice by the courts and to the rule of law more widely (see Commissioners for Her Majesty's Revenue and Customs v. Munir  EWHC 1366 (Ch) at [9(i)]). Within this context, the counterfeiting of court documents is considered by the courts to amount to a very serious contempt of court (see for example Dryer v HSBC Bank Plc  EWHC 3949 (Ch) and Patel v Patel and others).
49. Finally, as I have noted above, one of the legitimate objectives of any penalty for contempt is to deter others from engaging in the course pursued by the contemnor (see Patel v Patel and Ors at  and ) and this objective will have particular resonance in cases where the conduct in issue has impeded the proper administration of justice (see Chelmsford County Court v Simon Abraham Ramet  EWHC 56 (Fam) at 30). Each committal application will, of course, turn on its own facts, both with respect to the question whether the contempt alleged is proved and with respect to the sentence that is appropriate where that contempt is proved. However, as part of the sentencing exercise in this case, I have borne in mind the need to deter others from forging orders of the court by making abundantly clear that by doing so they would place themselves at grave risk of an immediate and lengthy sentence of imprisonment."
Mr Justice MacDonald found that in the foregoing circumstances, he was satisfied that the threshold for custody was plainly crossed in this case and that the appropriate and proportionate penalty in the case was an immediate term of imprisonment of 12 months.
“I make clear that but for the fact that Ms Griffith has not to date experienced prison, and the current impact on the nature of custody of the COVID-19 pandemic, I would have imposed on her an immediate sentence of imprisonment of 18 months for forging the court order with the intention of interfering with the due administration of justice,” the judge said.
He added: “I do not consider it appropriate to suspend the sentence of imprisonment I have imposed on Ms Griffiths in circumstances where the objective of the sentence is to mark the disapproval of the court of Ms Griffith's deliberate and calculated actions and to deter others from acting in a similar fashion, rather than to ensure future compliance with orders of the court in circumstances the substantive proceedings having now concluded.”