Lifetime retention and disclosure of fitness to practise histories
Is the GMC acting lawfully in maintaining and disclosing lifetime fitness to practise records?
The retention and disclosure of fitness to practise histories, at least in respect of more historical matters, engages the individual’s right to private and family life as protected by Article 8 of the ECHR. Clear parallels exist between the retention and disclosure of records by the DBS and fitness to practise records by statutory regulators. Each may be highly prejudicial, particularly in the context of employment.
The similarities mean that healthcare regulators will need carefully to consider the recent decision of the High Court in the case of R(P&A) v Secretary of State for Justice and others  EWHC 89 (Admin).
P&A: The claimants
P was 47 and had a conviction for shoplifting a book and a related conviction under the Bail Act 1976 for not surrendering to bail. P committed both offences in 1999, at a time when she was suffering from undiagnosed schizophrenia. She received a conditional discharge.
A was 51 and, as a 17 year old, was convicted for the theft of a coat and fined £30. Shortly after his 18th birthday he received a second conviction for stealing a motorbike for which he was fined £50.
P and A’s convictions were both historic. However, as they each had more than one conviction, the statutory scheme imposed an automatic lifetime requirement to disclose all of their convictions on an Enhanced Disclosure Certificate. The claimants challenged the lawfulness of the statutory scheme as a whole and not simply its application to them. Within the grounds of challenge, they asserted that the disclosure scheme had an arbitrary effect upon them.
Central to the Secretary of State’s defence, was the proposition that a requirement to assess the circumstances of every individual would place a disproportionate burden on the Disclosure and Barring Service when processing Enhanced Disclosure requests.
The issue for the court was whether the current statutory scheme governing disclosure of criminal records met the requirements of Article 8.
The court’s decision
The starting point of the judgment was the established principle enshrined within the ECHR that Article 8 is not absolute protection but requires that any interference with the right by the State meets the dual requirements of being:
(1) ‘in accordance with law’ (the legality requirement); and
(2) ‘necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’ (the necessity requirement).
The court found in favour of P and A. In doing so, the court held that the current system failed to meet the legality requirement because the statute did not afford the individual adequate protection against arbitrariness, and did not provide adequate safeguards enabling the proportionality of the interference to be adequately examined.
Within the judgment, the court stated that the present scheme could lead to ‘very startling’ results which could properly be described as arbitrary. The court noted that because the challenge in respect of the legality requirement had succeeded, the questions of administrative convenience upon which the defendant had sought to rely had no ‘operative place in assessing the lawfulness of the interference with convention rights’.
Concluding that the necessity requirements were also not met, the court stated ‘I can see no reason for thinking that the convictions in issue in the present cases before us bear, for the claimants’ entire lifetimes, a rational relationship with the objects sought to be achieved by the disclosure provisions of the Act, simply because in the case of each claimant there is more than one conviction.’
Relevance for healthcare regulators
This case has an obvious impact for healthcare regulators and their near blanket policies of lifetime disclosure of registrants’ fitness to practise histories.
To justify their position, many regulators rely on a statutory provision that affords a broad discretionary power to the regulator to publish information. However, the regulators’ schemes often provide no protection against arbitrariness, nor any safeguards enabling the proportionality of the interference to be adequately examined. Furthermore, the DBS scheme criticised in P&A is detailed, in stark contrast to the broad provisions relied upon by many healthcare regulators.
The GMC’s review of publication and disclosure
Following public consultation, the GMC is reviewing its publication and disclosure policies. Presently, its policy involves the lifetime publication to the world at large of registrants’ fitness to practise histories, save for warnings where publication is limited to a period of five years but disclosed to enquirers indefinitely. Central to the changes being consulted upon is a limit of publication to 20 years in certain cases.
Although the GMC is constrained by the provisions of the Data Protection Act, following P&A there must now be real doubt as to whether the present scheme, even if changed as envisaged by the GMC in its consultation, satisfies the legality requirement under Article 8.
The GMC’s proposed 20 year limit may have the attraction of administrative convenience, but that will be no answer to a challenge to its compliance with Article 8 if it does not also include sufficient protections against arbitrariness and safeguards to ensure the proportionality of individual decisions can be examined. The GMC’s approach is in mark contrast to the GDC’s proposals on publication which are currently the subject of a consultation.
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This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.