The General Dental Council v Savery and Others [2011] EWHC 3011 (Admin)

Introduction

The GDC sought to investigate Mr Al- Naher and its Registrar sought a declaration from the Administrative Court that he could lawfully disclose the dental records of 14 patients to the Investigating Committee, and thereafter to any Practice Committee to which the matter was referred, despite the absence of, or express refusal of, consent by those patients. The Court held that the Registrar could make the disclosure without the need for a court order. The Court held that “the public interest in investigation of allegations against dentists and other medical practitioners of impairment of fitness to practise has been assessed by Parliaments (and by the Courts) under the common law to be so strong as to override private interests of patients in preserving confidentiality, to the extent necessary for the investigation to take place.” Each individual to whom the dental records of the patients would be disclosed would be bound by common law duties of confidentiality and subject to the requirements of the Data Protection Act 1988 [DPA].

Factual background

HSA Simply Health, a dental insurer, raised concerns with the GDC about the treatment provided to a number of its patient/policy holders and the claims for payment submitted in respect of their treatments under the care of Mr Al-Naher, a dentist. Each patient’s policy entitled HSA to copies of the patient’s dental records which HSA then passed to the GDC following the Registrar’s express request, made in accordance with the powers given to him under Section 33 of the Dentists Act 1983.

HSA responded positively to a further request from the Registrar for the names and contact details of the patients in question despite the express refusal of consent by at least one of those patients.

The Registrar sought the consent of 14 patients to disclose their dental records to the Investigating Committee and, if necessary, onwards to a Practice Committee. Ten of the patients expressly withheld consent whilst four did not respond to the GDC’s enquiries.

Decision

The Court held that “the existence of an investigatory procedure and its effective implementation are fundamental to maintaining the confidence of the public in the dental profession.” Public law and the obligations under Article 8 (respect for private life) of the ECHR were at the heart of the case. Each disclosure of patient records in non-anonymised form would involve an interference with the patient’s right of respect for his private life under Article 8(1). Such disclosures therefore were required to be justified under Article 8(2). Referring to A Health Authority v X [2001] EWCA Civ 2014 Sales J commented that ‘….the public interest in effective disciplinary procedures for the investigation and eradication of medical malpractice will “invariably” outweigh patient confidentiality save in “exceptional cases”’.

He made clear that: (a) the disclosure sought was in accordance with the statutory regime in the Dentists Act; (b) all those concerned would be aware of the need to respect the patient’s confidentiality; (c) the common law obligation of confidentiality and the possibility of an action for breach of that obligation where there was unjustified disclosure remaind; and finally, (d) the obligations in the DPA on those who received copies.

The Judge noted that the registrant under investigation is expressly excluded from the reach of the Registrars power to require a person to supply information or produce documents in his custody or under his control granted to the Registrar by under Section 33 of the Dentists Act. The Judge described that exclusion as odd and noted that it excluded from the Registrar’s reach “the very person who might be thought to have the best information and documents relating to the allegation which falls to be examined”. He noted that in the present case it was fortuitous that HSA had sufficient patient records which it could make available to the GDC. He said the reason for the exemption was not obvious. He noted that the GDC can impose a requirement upon a patient to provide information or documents about his treatment and that a patient may have a right to require his dentist to hand over (at least some of) his own dental records, which will therefore be documents “under his control”. A similar provision appears in section 35A, Medical Act 1983.

That analysis may be understandable in relation to documents containing information about patients. There appears to be an answer in respect of other information or documents relating to the registrant. If the GDC (or GMC) could require the registrant to provide any information it would deprive the registrant of the right to decide when and how he should set out his defence, including any right to be silent and require the GDC (or GMC) to prove its case from information other than that which the registrant could provide.

Summary

The decision makes clear, if it was ever in doubt, that, even when the patient refuses consent, there is no need for the GDC (or the GMC) to go to Court for an order permitting the disclosure to and use by the GDC (or GMC) of the patient’s personal information in their regulatory proceedings. It emphasises the substantial weight to be attached to the public interest in effective disciplinary procedures for the investigation and eradication of medical malpractice. In doing so the Court appears to have undermined the strong assertions of the duties of confidentiality in A Health Authority v X although in that case the Court did order disclosure.

It remains to be seen whether Sales J’s comments in relation to the exclusion of the registrant from the reach of the Registrar’s power to require the production of information or documents triggers a move for enlargement of the statutory power. It is of note that the standard GDC letter at the start of an investigation routinely requires disclosure of the dental records to the GDC by the registrant.

Stewart Duffy
stewart.duffy@rlb-law.com

Alex Leslie
alex.leslie@rlb-law.com

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