Dr DB v The General Medical Council

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Soole
Judgment Date23 September 2016
Neutral Citation[2016] EWHC 2331 (QB)
Docket NumberCase No: C90MA014
Date23 September 2016

[2016] EWHC 2331 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MANCHESTER DISTRICT REGISTRY

Liverpool Civil and Family Court

Before:

Mr Justice Soole

Case No: C90MA014

Between:
Dr DB
Claimant
and
The General Medical Council
Defendant

Ms Anya Proops QC (instructed by BLM) for the Claimant

Mr Robin Hopkins (instructed by GMC Legal) for the Defendant

Hearing dates: 30 June, 1 July 2016

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Soole Mr Justice Soole
1

This is the hearing of a claim by the Claimant General Practitioner, anonymised as Dr DB (DB), against the General Medical Council (GMC) to prevent it from disclosing to his former patient (P), pursuant to his request under the Data Protection Act 1998 ( DPA), an expert report (the Report) obtained by the GMC for the purpose of investigating P's complaint concerning his professional competence.

2

P's application for the Report was treated as a request made by him as a 'data subject' under s.7 of the DPA. DB contends that compliance with the request is unlawful; in particular on the basis that it breaches his right of privacy as a data subject.

3

The claim is made under the inherent jurisdiction of the Court to grant declaratory relief, using the CPR Part 8 procedure as appropriate for a claim where there is no substantial dispute of fact.

4

On considering the papers before the hearing I was concerned that P, whose interests are directly affected by the claim, is not a party to the proceedings: cf. Rolls Royce plc v. Unite the Union [2009] EWCA Civ 387 per Aikens LJ at para.120 point (6). On further enquiry, correspondence between the GMC and P's solicitors showed that they are aware of the proceedings. I concluded that the two-day hearing should proceed but that P through his solicitors should be given formal notice of the proceedings (including the documents with some necessary redactions) and the opportunity to be joined as a party and thus to make submissions.

5

In response to such notice, by letter dated 22.7.16 P's solicitors (WH Law LLP) advised that he did not wish to be joined, citing both the cost and his state of health. I have concluded that his interests are sufficiently protected by the supportive stance which the GMC has taken in respect of his request and these proceedings.

Factual background

6

In September 2013 P was diagnosed as suffering from cancer of the bladder. On 8.11.13 he complained to the GMC about his treatment by DB on 16.10.12. He contended that DB had examined and dealt with him incompetently, with the consequence that there had been an avoidable delay of one year in the diagnosis.

7

The GMC commenced an investigation of DB's fitness to practise (FTP) in accordance with its regulatory functions and procedures under the GMC Fitness to Practise Rules 2004. For that purpose it instructed an independent expert to review the matter and prepare an opinion. The expert produced the 22-page Report dated 14.5.14.

8

The Report was critical of the care provided by DB in a number of respects, concluding that this fell below – 'but not seriously below'— the expected standard. However it concluded that most reasonably competent General Practitioners would not have suspected bladder cancer given (i) the absence of a history of blood in the urine and (ii) the negative results of the urine test which DB had ordered on 16.10.12.

9

On 19.5.14 the GMC sent a copy of the Report to DB. The accompanying letter advised that the Investigating Officer would now be submitting the case for decision by the case examiners. The letter made no request for DB to comment on the Report, nor did he do so.

10

On 17.7.14 the GMC wrote to P and DB by separate letters advising that the case examiners (one medical, one lay) had decided to conclude the case with 'no further action'. To each letter the GMC attached, by Annex A, the reasons given by the case examiners for their decision. The Annex included a short summary of the expert's comments, of approximately one page. This summary included the statements of opinion that the care provided by Dr DB was 'below but not seriously below' the expected standard and the conclusion to which I have referred.

11

Following P's telephone request for a copy of the Report, the Investigation Officer by letter dated 8.9.14 advised him to submit the request to the GMC's ' FOIA Team', referred him to the Freedom of Information Act 2000 ( FOIA) and supplied a copy of the GMC's 'Information Request Form' for completion and return.

12

By letter dated 11.9.14 P's solicitors returned the completed form, attaching a requested 'List of Documents'. The first listed document was the Report. The form and accompanying letter made no reference to FOIA or DPA. By letter of the same date P's solicitors notified DB that they were acting for P under a conditional fee agreement, attaching a Notice of Funding.

13

By letter dated 16.9.14 the GMC replied that it was dealing with the request under both FOIA and the DPA and that a DPA request required a statutory fee of £10. The letter noted that there '… may be some information which we cannot release to you under the FOIA and/or DPA…'. P's solicitors sent the fee the following day.

14

By letter dated 25.9.14 the GMC invited DB's views on the request for disclosure ' … given that the report concerns you, as well as [P]'.

15

By e-mail dated 9.10.14 the GMC advised P's solicitors that the request under FOIA was refused and that a request for personal information fell under the data subject access provisions of the DPA.

16

By letter dated 17.10.14 DB's solicitors (BLM) advised that he did not consent to the disclosure of the Report. They submitted in particular that the Report constituted the 'personal data' of DB alone; and that the DPA request was being used as a vehicle for disclosure with a view to litigation or further complaint, contrary to certain observations made in Durant v. FSA [2003] EWCA Civ 1747. They also objected to disclosure under section 35B(2) of the Medical Act 1983 (MA 1983). That provision empowers the GMC, if they consider it in the public interest to do so, to publish or disclose information which relates to a practitioner's fitness to practise.

17

On the same date (17.10.14) an internal memorandum of the GMC submitted the ' DPA request' and DB's response to Mr Julian Graves (Information Access Manager) and asked him to carry out '… a 'balance of interests test', as provided for in the legislation…' so as to determine whether the Report should be released to P.

18

By his Memorandum dated 31.10.14 Mr Graves advised of his conclusions in particular that:

(1) the Report focused on the interactions between P and DB and should be regarded as P's personal data (save for the section concerning Dr DB's CV) for the purposes of the DPA;

(2) it could not be doubted that the information was being sought to further a potential claim for clinical negligence against DB;

(3) his task was to balance the interests of both parties in accordance with DPA s.7(4);

(4) on balance it would be fair and lawful and not in breach of the DPA's Data Protection Principles (DPP) to disclose the report to P;

(5) section 35B of the Medical Act 1983 was not the appropriate route when DPA s.7 was engaged.

19

In reaching his conclusion, Mr Graves recognised the validity of the concern that the Report was being sought in order to pursue litigation but doubted if it would assist P in any legal action, given that it was 'largely supportive' of the actions he had taken. Furthermore, taking account of the '… transparency of our decision making process, I feel there is a strong case to justify providing [P] with a document which played a key role in the GMC's decision to close his complaint at an early stage. There is certainly the potential for [P] having considered the comment of the expert, to seek a Rule 12 1 review with the GMC. His opportunity for doing this without sight of this key piece of evidence will undoubtedly be hampered.'

20

By letter dated 12.11.14 the GMC reported his conclusion to BLM and advised that, in the absence of further reply, the Report would be disclosed on 21.11.14.

21

By reply dated 21.11.14 BLM in particular stated that (i) it did not accept that the Report constituted the sole personal data of P and referred back to Durant (ii) the GMC had unfairly prioritised its and P's interests over DB's privacy rights which included the protection of his professional reputation (iii) reiterated the litigious purpose of P's request; and submitted that an unfair balance had been struck.

22

By substantive reply dated 13.2.15 Mr Graves advised that the GMC's view remained that this was the joint personal data of DB and P; that the balancing exercise had been appropriately carried out; and that he had asked a colleague to undertake a review of his original balancing decision. Having done so, the conclusion was unchanged. The letter referred to Article 8/the DPP and recognised the need to balance the rights and interests of both parties. It also emphasised the GMC's legitimate interest in transparency and concluded 'Failure to disclose the findings of an independent expert would most likely be a breach of the Human Rights Act in terms of obligations to protecting the health, as well as the rights and freedoms of the data subject (i.e. [P]'s). The report contains data that relates to both parties,…– By not disclosing to one party, we could be said to be biased and acting against the interests of the party, in contravention of our obligations under DPA/ HRA.' Subject to any further representations, the Report would be disclosed on 27.2.15.

23

Following an agreed extension of time, BLM replied on 6.3.15,...

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