The ‘legitimate expectation of privacy’ and GMC expert reports
DB v GMC 2016 EWHC 2331
This recently reported case sheds further light on whether, under the subject access provisions of the Data Protection Act, a complainant has the right to obtain a copy of an expert report on his complaint obtained by the GMC – or whether precedence is given instead to the practitioner’s right of privacy under the same Act and Article 8 of the European Convention on Human Rights.
- Complainant P was diagnosed as suffering from cancer of the bladder in September 2013. He complained to the GMC that DB, his general practitioner, had failed to examine him adequately at a consultation some 11 months earlier, with a resulting avoidable delay in the diagnosis.
- The GMC obtained an expert report on the complaint which concluded that the care provided by DB to P was below, but not seriously below, the required standard in a number of respects – but that most reasonably competent GP’s would not have suspected bladder cancer on the basis of P’s presenting history and test results.
- Case Examiners decided to close the case with no further action. DB and P were advised accordingly, and provided with reasons for the Case Examiners’ decision, including a summary of the expert’s report. P subsequently issued a request for disclosure of the report to the GMC, and solicitors acting on his behalf gave notice of an intended claim to DB. The GMC sought DB’s consent to disclosure of the report: he refused. The GMC subsequently indicated an intention to release a copy of the expert’s report to P, but agreed to defer implementing that decision pending the outcome of an application for judicial review in the Administrative Court.
The Administrative Court’s decision:
- Whilst the GMC had conducted a balancing exercise in respect of the parties’ competing interests before reaching its decision, it had fallen into error and got the balance wrong
- First, on the basis of previous legal authority (Durant v FSA 2003 EWCA Civ 1747), it should have started with a presumption against disclosure. Second. although the report contained the personal data of both P and DB, its real focus was on DB’s professional competence and the GMC had given inadequate weight to his right of privacy. Third, the GMC had given insufficient weight to DB’s express refusal of consent to disclosure of the report. Finally, the GMC had not taken adequate account (which could be reasonably be inferred from the coincidence in time of P’s application and his solicitors’ notice of claim) that the purpose of the request was to use the report in the intended litigation against DB.
The judge in the case declined a request to provide guidance to the GMC as to how it should deal with similar cases in future, but he emphasised that when conducting the balancing exercise in such cases it should be remembered that:
- it involves balancing the privacy rights of each party
- in the absence of consent, the rebuttable presumption is refusal of disclosure, and
- if the sole or dominant purpose of a request is to obtain a document for the purposes of a claim, that is a weighty factor in favour of refusal.
Since this article was published, the GMC has made an application to the Court of Appeal for permission to appeal the High Court decision. The outcome of that application is awaited as of 5 June 2017.
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