The High Court has ruled that the GMC was wrong to decide to disclose a full report regarding a GP’s fitness to practise to a patient who wanted to file a clinical negligence claim.
In the recent case, a GP – who is referred to as Dr DB – underwent a fitness-to-practise investigation after a patient complained that the GP’s incompetence had led to a year’s delay in diagnosis of bladder cancer.
The GMC commissioned an independent report into the GP but found there was no further action to be taken against the GP.
As usual, the GMC gave the patient a summary of the report, but the patient requested the full report as they were considering pursuing a clinical negligence claim.
The GP refused to give consent for the report to be shared, but the GMC decided to disclose it anyway. However, it didn’t release the report pending the legal case brought about by the GP, which he won.
The High Court ruled that the GMC had failed to start with a presumption against disclosure, failed to give adequate weight to the GP’s refusal to disclose the report and did not consider the motive of the patient’s request – to use the report in litigation against the GP rather than to check the accuracy of data held about them, which the Data Protection Act provides for.
Katherine Taylor, a barrister specialising in regulatory matters for healthcare professionals in Kingsley Napley LLP, said that: ‘The case shows that doctors have a very real privacy right over a report which focusses on professional competence’, and this case is ‘particularly important for those who find themselves subject to investigation by the GMC.’
A GMC spokesperson said: ‘Although we had decided in principle to release the report having carried out a balancing exercise, we chose not to do so pending the court ruling.
‘We are currently considering the judgment, its implications and any further steps which the GMC should take in relation to the case.’
Dr Pallavi Bradshaw, senior medicolegal adviser at Medical Protection said: ‘We are very pleased that Mr Justice Soole concluded that our member’s claim against the GMC, seeking to prevent it from disclosing its expert report to the complainant, must succeed.
‘This has been an extremely helpful judgment for Medical Protection members and the wider profession as the disclosure of expert reports to complainants can cause doctors a great amount of additional stress usually at a time when doctors may think the case against them has been closed.
‘In the majority of cases in which Medical Protection has been involved, several of the factors Mr Justice Soole ruled on regarding disclosure are issues that we often come across. Providing that the GMC do not intend to pursue an Appeal we believe that this case sets a strong precedent for similar cases in the future, and will go some way to improve the regulatory process for all doctors.’
It comes as the GMC is in the process of changing how it conducts investigations to lessen the impact on doctors, following recommendations made by an independent review of its fitness-to-practise process.
The GMC is trialling a new approach to clear up more complaints about clinical practice before they escalate to a formal investigation to help ‘reduce the impact on doctors’.
Earlier this year the regulator announced that doctors with mental health problems will in future be spared from full GMC investigations ‘wherever possible’ to try to make its fitness-to-practise process more ‘sensitive to the needs of vulnerable doctors’.
Please note: this article was changed at 10am on 25 October 2016 to reflect that the GMC had decided to release the report, but didn’t actually do so pending the court case