GPs’ right to privacy has been reaffirmed
Letter from Katherine Tyler, a barrister specialising in regulatory matters for healthcare professionals, at Kingsley Napley LLP
In a recent case , a doctor successfully challenged the GMC’s decision to disclose to a patient an independent report into his fitness to practise.
This is the first time the High Court has considered this type of disclosure under the Data Protection Act (DPA) 1998 and its decision provides important lessons for doctors, particularly in relation to information that concerns their professional competence.
The case concerned a GP (DB) whose patient complained that he had examined and dealt with him incompetently, leading to a delay of one year in the diagnosis of cancer of the bladder.
The GMC commenced a fitness to practice investigation and commissioned an independent report into the relevant aspects of the GP’s practice. Based on the conclusions of this report the GMC decided there was no further action to be taken against the doctor and wrote to the patient to say the matter would not be pursued.
The GMC disclosed to the patient a summary of the report but kept back the full report as was its usual practice. The patient, who was contemplating a possible claim for clinical negligence against the doctor, wrote to the GMC requesting disclosure of the full report. Despite the doctor’s refusal to give his consent for the full report to be provided to the patient, the GMC decided to disclose it. DB challenged the GMC’s decision before the High Court.
The decision for the High Court was not simple; the report contained the personal information of two people (the patient and the GP) and therefore, under the DPA, any decision regarding its release required the GMC to conduct a specific balancing exercise.
The High Court concluded that the GMC had performed this balancing exercise incorrectly. It had failed to start with a ’presumption against disclosure’ and had failed to give adequate weight to DB’s status as the data subject of the report or, importantly, his right to privacy with respect to the information relating to his professional competence and reputation.
The GMC had also failed to give adequate weight to DB’s express refusal of consent to the disclosure of the report. Finally, it had failed to take adequate account of the purpose of the patient’s request, namely to use the report in intended litigation against DB.
The Court considered that the significance of this final factor was two-fold: firstly, that the patient was not using the DPA to check the accuracy of the data held by the GMC about him (in the report) and therefore his request was not in accordance with the purpose of the DPA; and secondly, that if the report was released by the GMC under the DPA then DB would be deprived of protection that he would have been provided (e.g. restrictions on the use of the report) had the report been disclosed following an application to the High Court under the Civil Procedure Rules.
So, what does this mean for doctors who find themselves in a similar situation to the GP here? The case shows that doctors have a very real privacy right over a report which focuses on professional competence.
It emphasises that consent to disclosure of such a report is a vital consideration in any final decision to disclose and lastly that the motive behind the request for the report, particularly where that motive relates to possible litigation against the doctor, should be taken into account in any final decision on disclosure under the DPA. In today’s climate of increasing litigation against doctors, this case is particularly important for those who find themselves subject to investigation by the GMC.