General Medical Council: restrictions on expert reports lifted

The General Medical Council (GMC)'s Fitness to Practise investigations often see them commissioning an expert report into a professional's conduct. While it is uncomfortable to know your actions are being examined by another professional, doctors can at least be assured that the report will not be used for a claim for damages.

Or can they?

The Court of Appeal's recent decision in B v GMC [2018] EWCA Civ 1497 has potentially far reaching consequences, allowing the disclosure of an expert report to a patient where there was an underlying prospect of litigation. The data access rights of the patient trumped those of the doctor.

Background facts

Dr B is a general practitioner. P was his patient. He attended complaining of difficulties urinating. In September 2013, P was diagnosed with bladder cancer. P complained to the GMC about the treatment provided by Dr B. He alleged that there was an avoidable delay in diagnosis of one year.

The GMC began an investigation into Dr B. They instructed an expert report. Though the report was critical of a number of aspects, it did not find that his conduct fell "seriously below" the standard to be expected.

Case examiners decided that no further action was required. They told both Dr B and P, and provided a summary of the expert report's conclusions.

P subsequently made a Freedom of Information request for sight of the report. The GMC refused as the report contained personal data. Thereafter P made a subject access request under section 7 of the Data Protection Act 1998.

Dr B objected to disclosure of the expert report as it contained his personal data. He also objected as, in his view, the request was being used as a method of obtaining the report for the purposes of litigation.

First instance

At first instance, the court agreed with Dr B and granted an order preventing disclosure.

The court held that, where there was mixed personal data (the personal data of both Dr B and P) a balancing exercise had to be carried out. Where one party objected, there was a presumption against disclosure. The GMC had got the balance wrong. The focus of the report was the professional competence of Dr B and no account had been taken of his refusal. It was highly significant that the purpose of the request was to use the report in litigation.

Appeal

The GMC appealed on four grounds, including:

• That it was an error to hold that, in a case of “mixed personal data” there is a rebuttable presumption against disclosure; and
• That it was an error to hold that, where the sole or dominant purpose is to obtain information for the purpose of litigation, this was a weighty factor in favour of refusal.

The Court of Appeal allowed the appeal by a majority of 2:1.

Presumption against disclosure

Where a case concerns mixed personal data, and one party objects to disclosure, the data controller must conduct a balancing exercise. The starting point is reasonableness. Both parties' rights are engaged, and there is no priority between them.

The court held that the GMC lawfully carried out this exercise. P had an interest in seeing the report in order to check its accuracy. He also had a right to request a review of the case examiner's decision. Provision of the report was necessary to assist him in deciding whether to seek a review.

Litigation motivation

The Court of Appeal was of the view that P's material motivation was to check the accuracy of the report. Nevertheless, even if his motivation was to obtain material to help him in litigation, that did not diminish the legitimacy of his interest.

"There is no general principle that the interests of the requester, when balanced against the interests of the objector, should be treated as devalued by reason of such motivation."

Dr B's interest in maintaining the privacy of the report was weaker than P's interest in its disclosure. The report contained mixed personal data, however the data regarding P was "sensitive personal data" as it contained information relating to his health. The GMC had considered these factors when conducting their balancing exercise.

GDPR

This decision focuses on the data protection regime in place in 2013. However the position is likely to be the same under the General Data Protection Regulation.

Under GDPR, where a request is made for data which includes information about other people, information should only be disclosed if:

• The other individual consents to the disclosure; or
• It is reasonable to comply with the request without that individual’s consent.

Guidance from the Information Commissioner's Office indicates that, in assessing reasonableness, a balancing exercise must weigh the rights of the requester against the rights of the other data subjects mentioned.

Comment

This decision could have wide reaching consequences for healthcare regulation and beyond. An individual has no control over when an expert report is commissioned by their professional body. That this report can be disclosed to the complainer for use in litigation is worrying.

Solace can be taken from a few factors. First, it was P who had made the complaint to the GMC and thus had a right to request a review. In many cases the complaint is made by a health board or other professional, not the patient.

Secondly, the Court of Appeal highlighted that P's motivation was to check the accuracy of the report. This was despite him instructing solicitors on a conditional fee arrangement. If it is clear that the underlying motivation is litigation, the scales may tip more in the favour of the professional.

Thirdly, the test for professional negligence (Hunter v Hanley and Bolam v Friern Hospital) is different to the test applied by the GMC in regulatory proceedings. While a negative expert report may be unhelpful, it is not adequate for the purposes of litigation.

Finally, a claimant is still required to prove causation, even if negligence is demonstrated.