B v The General Medical Council, Court of Appeal - Civil Division, June 28, 2018, [2018] EWCA Civ 1497

Resolution Date:June 28, 2018
Issuing Organization:Civil Division
Actores:B v The General Medical Council
 
FREE EXCERPT

Case No: A2/2016/3903

Neutral Citation Number: [2018] EWCA Civ 1497

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Mr Justice Soole

[2016] EWHC 2331 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28/06/2018

Before :

LADY JUSTICE ARDEN

LORD JUSTICE SALES

and

LORD JUSTICE IRWIN

- - - - - - - - - - - - - - - - - - - - -

Between :

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Robin Hopkins (instructed by GMC Legal) for the Apellant/Defendant

Anya Proops QC (instructed by BLM) for the Respondent/Claimant

Hearing date: 20 March 2018

- - - - - - - - - - - - - - - - - - - - -

Judgment

Lord Justice Irwin:

  1. In this case the General Medical Council [``GMC''] appeals the Order of Soole J of 23 September 2016, in which the judge granted an injunction against the GMC restraining disclosure of an expert report. The central facts are agreed between the parties and the claim has proceeded under CPR part 8, on the basis that there was no substantial dispute of fact.

  2. For convenience the relevant provisions of the Data Protection Act 1998 [``DPA''] are set out in Annex 1 to this judgment.

  3. The full factual background is set out in the judgment from the Court below in paragraphs 6 to 29. It is not necessary to recapitulate all of the facts but a summary is necessary.

  4. The Respondent is a general medical practitioner and for a number of years he had a patient anonymised as ``P''. P is a man in his 60s. Over a period of years P suffered difficulties in urinating, about which he consulted the Respondent Dr B. In September 2013, P was diagnosed as suffering from cancer of the bladder. On 8 November 2013, he complained to the GMC about his treatment by Dr B, in particular on 16 October 2012. The nub of his complaint was that Dr B had examined him and dealt with him incompetently, leading to an avoidable delay of about one year in the diagnosis of cancer.

  5. P complained on 8 November 2013 and the GMC commenced an investigation of Dr B's fitness to practice. The GMC instructed an independent expert GP to review the matter and the resulting report, consisting of 22 pages, was dated 14 May 2014. The report was delivered to the GMC and was the central element in their decision whether to take any action in relation to Dr B.

  6. The report was critical of the care provided by Dr B in a number of respects, concluding that the care provided fell ``below'' but ``not seriously below'' the expected standard of care. A further conclusion was that most reasonably competent general practitioners would not have suspected bladder cancer, given two particular findings recited in the report.

  7. On 19 May 2014, the GMC sent a copy of the report to Dr B. He was informed in the accompanying letter that the report would be forwarded to the relevant case examiners. On 17 July 2014, the GMC wrote again to Dr B and also wrote to P informing all parties that the case examiners, one of whom was medical and one of whom was a lay person, had taken the decision that there should be no further action. Attached to each letter was Annex A, summarising the reasons given by the case examiners for their decision. Annex A included a short summary of the experts' comments taking approximately one page. It is helpful to produce that summary here, redacted so as to preserve anonymity:

    ``Expert report

    The expert's comments include the following:

    · Dr B should have asked the patient about blood in the urine as part of his assessment of lower urinary tract symptoms in order to exclude bladder pathology or renal/bladder stones. In addition he should have asked about bowel habit and general health as part of the assessment of abdominal pain to exclude the possibility of bowel pathology. However, as he arranged a urine test, his failure to ask about these was below but not seriously below the standard expected. This is because the urine test would have dealt with the presence or absence of blood or infection and if this were normal, there would be another opportunity to review the abdominal symptoms if they did not settle.

    · Dr B should have carried out an examination of the patient's abdomen and external genitalia; his failure to do so represented a standard of assessment below, but not seriously below, that expected of a reasonably competent practitioner.

    · The prescription of Tamsulosin was reasonable; however, Dr B should have given the patient advice about the side effects of the drug; his failure to do so was only just below the standard expected of a reasonably competent GP.

    · The arrangements for follow up were recorded in the notes; even if the patient's account is accepted, and no follow up was arranged, this would have demonstrated a standard of care below, but not seriously below, that expected of a reasonably competent GP.

    · There was no indication for any further investigations other than the urine test, which proved negative.

    · If the patient's account is accepted, Dr B's communication fell below the standard expected of a reasonably competent general practitioner but not seriously below.

    The expert states that it is important to note that the patient did not complain of the presence of blood in his urine until prior to the consultation in June 2013 and nowhere in his complaint does he state that he told Dr B this. Contrary to the assertion in the letter of referral by Dr B's colleague in June 2013, the previous urine tests had not shown any blood. The expert concludes that ``most reasonably competent general practitioners would not have suspected bladder cancer on 16 October 2012 in the absence of a history of blood in the urine and this would have been confirmed by the laboratory result''.''

  8. P's solicitors requested disclosure of the report, initially pursuant to the Freedom of Information Act [``FOIA'']. This request was refused by the GMC on 9 October 2014, on the ground that to do so would breach the principles of the DPA, and thus FOIA s.40(5)(b)(i) was engaged.

  9. On 11 September 2014, through his solicitors, P requested disclosure of the expert report. It is worth noting that the request was explicitly for the full report, not merely for P's personal data contained within the report: see the judgment at paragraph12. The report was the first on a list of requested documents. The GMC responded to the solicitors explaining that the request would be treated as a subject access request under Section 7 of the DPA and the solicitors agreed. The GMC then invited a response from Dr B on the question of disclosure of the report to P. His solicitors responded on his behalf on 17 October, 21 November 2014 and 6 March 2015 making clear Dr B's opposition to disclosure.

  10. The essence of Dr B's arguments in these letters was as follows. Initially, Dr B's solicitors suggested that the report contained ``his own and not [P's] personal data, in that the report ``relates to'' Dr B as the ``data subject''. The first letter cited Durant v Financial Services Authority [2003] EWCA Civ 1746. The use of the DPA as a vehicle for third party discovery with a view to litigation was misguided. The letter cited the provisions of the Access to Health Records Act 1990, which would enable P to acquire copies of his own records. There was no ``public interest'' in disclosing the expert report ``for the purposes intended by [P] and his solicitors''.

  11. In their letter of 21 November, Dr B's solicitors' position had shifted somewhat. They rejected the suggestion from the GMC that the letter contained the ``sole'' personal data of P, and asserted that the report contained the personal data of both P and Dr B. The letter noted that it was the clear intention behind the request to initiate litigation against Dr B, rather than a case where ``a disappointed party requests disclosure with a view to taking advice as to whether to bring a legal challenge against a decision taken by the [GMC].'' The ``stated importance of transparency in GMC decision making is much reduced in circumstances involving an alternative motive'' namely suing for compensation, and not concern about the GMC's processes.

  12. The solicitors emphasised that Dr B had not been invited to make, nor had he made, comments on the draft expert report. The report ``contains criticisms of him ... which [P] proposes to use ... to secure compensation.'' The interference in Dr B's Article 8 rights was ``more than trivial or modest''. Article 8 was certainly sufficiently wide to extend to the protection of a doctor's reputation: see Mkolajova v Slovakia 4479/03 18 January 2011.

  13. This letter also cited section 7(1)(c) of the DPA as conferring a right to have the communication of ``information'' in an ``intelligible form'', not a right to documentation. P had already received the relevant information in intelligible form, in the shape of Annex A.

  14. The GMC reasoning was refined and set down in an email of 12 February 2015 disclosed to the judge. Following consideration of the Information Commissioner's Code of Practice, the relevant advisor emphasised that:

    ``... The GMC has a legitimate interest in ensuring openness and transparency when making decisions that affect an individual. The full report, which contains Mr S's personal data, and upon which a decision was taken in relation to Mr S and the treatment he received is based, should be disclosed to fulfil this obligation. The report contains the findings of an independent expert, who has provided the GMC with full consent to disclose, and as such there could be no justification in withholding this report from Mr S.

    In relation to Art.8 HRA, it states that: There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the...

To continue reading

REQUEST YOUR TRIAL