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GP wins appeal after HMRC demand access to diary details

A GP has won an important fight to protect patient confidentiality after a tribunal found that the HMRC could not access her business diary to investigate her tax affairs.

Dr Kathleen Long - a locum GP working on Scotland’s west coast - made an appeal to the tax tribunal, heard in Edinburgh on 17 January, after HMRC demanded she produce her business diary in support of her self-assessment tax return.

The GP said that such a demand would infringe on her patients’ confidentiality rights and the judge found that the business diary was unnecessary in the investigation of her tax affairs.

Experts said that the victory was important in light of the ongoing care.data fiasco, and would give patients more confidence that their data would remain confidential.

This comes as HMRC continues with its campaign to investigate the tax affairs of doctors, which started in 2010 and warned of ‘substantial penalties or even criminal prosecution could follow for those who have undeclared tax liabilities’.

The long-running disagreement first arose after Dr Long, who also runs a private hypnotherapy and cosmetic clinic in Glasgow, self-reported an error in declaration of her income from self-employment in her 2010/11 tax returns.

HMRC wrote to Dr Long requesting further information and documents, including her business appointments diary. But Dr Long denied the request on the basis that the diary contained confidential patient information, leading to HMRC conducting an internal review of the case, which found that Dr Long could not use patient confidentiality as a defence against handing over the diary.

But Judge J Gordon Reid found that ‘Dr Long has been cooperative in relation to HMRC’s enquiries’. He concluded: ‘The appeal is allowed. Dr Long does not have to produce her business appointments diaries to HMRC.’

He cited a ruling from a European Court of Human Rights case from 1997 that found: ‘Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general.’

However, he said in this case, the confidentiality argument was not necessary as it was unreasonable in any case for HMRC to demand the business diary.

But Baker Tilly tax partner Andrew Hubbard said it was likely that patient confidentiality was a major influence in the judge’s decision.

He said: ‘I suspect that even if it hadn’t been a doctor’s case the tribunal might have said that was a step too far, but the fact that it was a doctor and confidential information I think weighed the balance even more in favour the confidentiality [being protected].’

‘While this ruling doesn’t say that under any circumstances a doctor’s diary is sacrosanct, I suppose you could say it is a win for reasonableness.’

But Mr Hubbard added that the lesson may be not to put too much detail in your appointments diary.

‘I suspect the message to doctors is that these paragraphs do exist and you don’t want to get into the position that she did. I suspect Dr Long is rubbing her wounds, but she took one to ensure her patients’ affairs remained confidential.’

A spokesperson for the HMRC said: ‘We are considering the judgment.’

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