By Daniel Langley, Solicitor
Dr DB v. General Medical Council  EWHC 2331 (QB)
A recent judgment of the High Court (relating to a complaint about a doctor to the GMC) indicates that in matters concerning personal data, it is imperative to consider that: (1) there must be a balance between each respective data subject; (2) in the absence of consent, the rebuttable presumption is against disclosure; and (3) if it appears that the sole or dominant purpose is to obtain a document for the purpose of a claim against the other data subject, one should favour refusal.
This case concerned a privacy battle between a GP (Dr DB), a patient (P), diagnosed with bladder cancer, who had complained about his treatment by Dr DB and the GMC who investigated the complaint. P contended that Dr DB had examined and dealt with him incompetently, with the consequence that there had been an avoidable delay of one year in the diagnosis.
In the course of its investigation, the GMC instructed an independent expert to review the matter and prepare an opinion. The expert subsequently produced a 22 page report (the Report) which was critical of the care provided by Dr DB concluding that it fell below 'but not seriously below' the expected standard. The GMC then decided to conclude the case with 'no further action' and both parties were informed of this decision. Dr DB was also sent a copy of the Report and P was sent a 1 page summary of it.
P requested a copy of the full Report as he wanted to investigate a possible claim for clinical negligence. Dr DB refused consent. The GMC concluded it should disclose the Report to P as it contained the joint personal data of P and Dr DB and that the privacy rights and freedoms of both P and Dr DB had to be balanced. It relied on the sensitivity of P's medical records, the independence of the reporting doctor, the GMC’s legitimate interest in fairness and transparency, the patient’s legitimate interest in seeing the document which brought his complaint to an end, the minimal risk to the GP’s reputation, and the lack of risk that the patient might misuse Dr DB’s personal data.
In his response, Dr DB pointed to, amongst other factors, his unblemished disciplinary history in the course of nearly 25 years practice and his concern that P might misuse the Report by publishing it to the world at large, e.g. online. He stated that the Report contains a much more detailed and '…potentially inflammatory analysis of the way I treated [P]'; and does not contain (because he was not asked) his own comment and disagreement with the expert's analysis.
The GMC agreed to defer releasing the Report pending the outcome of an application for judicial review by Dr DB in the Administrative Court.
The court's judgment
The court considered the GMC's balancing exercise fell into error and got the balance wrong. Firstly, in the absence of consent, the GMC should have started with a presumption against disclosure. Secondly, the GMC gave no adequate weight to Dr DB's status as a data subject or therefore the privacy right which he had in the Report. Whilst containing the (sensitive) personal data of P, the Report's real focus was on Dr DB's professional competence. Thirdly, the decision took no adequate account of Dr DB's express refusal of consent. Fourthly, the decision took no adequate account of the fact that the purpose of the request was to use the Report and its information in the intended litigation against Dr DB. The significance of this factor was two-fold. First, the information was not being sought to protect P's privacy by ensuring the accuracy of the personal data. Second, in obtaining the document by this means Dr DB would be deprived of the protection provided by the ordinary Civil Procedure Rules for disclosure. Accordingly, the decision was unlawful.
The Judge gave some guidance for future cases, although emphasised that the Court should be wary of attempting to devise any principles of general application in respect of the balancing exercise. Each application has to be considered on its merits. He stated:
1) It is essential to keep in mind that the exercise involves a balance between the respective privacy rights of data subjects;
2) In the absence of consent, the rebuttable presumption or starting point is against disclosure. Furthermore the express refusal of consent is a specific factor to be taken into account;
3) If it appears that the sole or dominant purpose is to obtain a document for the purpose of a claim against the other data subject, then that is a weighty factor in favour of refusal (on the basis that the more appropriate forum is the Court procedure under CPR 31).
Accordingly the GMC refused to release the Report.