English judge rejects damages claim brought on behalf of 1.6m people based on NHS data transferred to Google

About this case:

• Citation:
  [2023] EWHC 1169 (KB)
• Judgment:
  External link
• Court:
  England and Wales High Court
• Judge:
  Mrs Justice Heather Williams

Andrew Prismall sought to bring a claim for damages on behalf of approximately 1.6 million people, averring that Google and Google group company DeepMind Technologies Ltd had wrongfully interfered with patient-identifiable medical records prior to the launch of a DeepMind-developed clinical system used by the Royal Free London NHS Trust.

The case was heard by Justice Heather Williams of the King’s Bench Division. Timothy Pitt-Payne KC, Gerard Rothschild and Stephen Kosmin appeared for the representative claimant and Anthony White KC and Edward Craven for the defendants.

Loss of control

DeepMind had been involved in the development and operation of an app known as Streams, a clinical system designed to assist clinicians in the treatment of patients suffering from acute kidney injury. A one-off transfer of historical data took place in October 2015 and a live data feed established around the same time in respect of subsequent medical records. The app became operation in February 2017.

The claimant class represented by Mr Prismall was identified as any individual with a domicile in England and Wales who had presented for treatment at the Royal Free between 29 September 2010 and 29 September 2015, or whose blood tests had been held over the same period. The representative claimant, who had received extensive treatment at the Royal Free, had never consented to his medical records being collected or used by the defendants at any relevant time, and he argued he and others had a reasonable expectation of privacy in the information transferred.

It was alleged that the loss of control over the private information of the representative claimant and others in the class was enough for them to have the same interest for the purposes of loss of control damages. No express or implied consent had been given for the transfer, the effect of which was that each patient had lost control over a part of their personal medical records.

The defendants sought to have the claim struck out on the basis that it had no reasonable prospect of success. It was argued that the circumstances of the class members were too varied for the claim to have a prospect of establishing that they all had a viable claim based on misuse of private information.

Caused no impact

In her decision, Justice Williams said of the information transferred: “Very limited information was transferred and stored. Although health-related, it was anodyne in nature; this information was held securely and not accessed by anyone during the storage period; [and] the information was already in the public domain. The alleged acts of interference outside of patient direct care were limited to the transfer of the data and to its secure storage for up to 12 months; and that this caused no impact other than the loss of control itself.”

She continued: “Accordingly, the claim as currently advanced on a global irreducible minimum basis in order to try and meet the ‘same interest’ criterion for a representative action cannot succeed. It cannot be said that every member of the class across the board has a viable claim. Equally, departing from the lowest common denominator scenario and bringing into account individualised factors for the purposes of showing that a reasonable expectation of privacy exists in particular situations would mean that the ‘same interest’ test was not met.”

Addressing loss of control, Williams J said: “The representative action in its current form is unsustainable. Approaching matters on a lowest common denominator basis and leaving individualised factors out of account, it cannot be said of any member of the Claimant Class that they have a viable claim for an entitlement to more than trivial damages.”

She concluded: “This is not a situation in which every member of the Claimant Class, or indeed any given member of the class, has a realistic prospect of establishing a reasonable expectation of privacy in respect of their relevant medical records or of crossing the de minimis threshold in relation to such an expectation. For similar reasons there is no realistic prospect of the Court concluding at trial that the members of the class across the board experienced a wrongful interference with their data.”

The claim was accordingly struck out and summary judgment entered for the defendants.