Court ruling shields GPs against release of sensitive fitness to practise data

A High Court judge has ordered the GMC not to release a fitness to practice report on a GP, in a case that could help protect doctors whose patients have complained about them.

The ruling comes after a case made by medico-legal organisation Medical Protection on behalf of a GP who did not wish to have his fitness to practise report disclosed to a patient after their complaint against him had been dropped by the GMC.

Medical Protection argued that the complainant was trying to get hold of the report to use ‘as a vehicle for disclosure with a view to litigation or further complaint’.

A High Court judge ruled that the GMC should not release the report, given that the GP did not consent to the information being released.

The case paves the way for GPs and doctors in a similar position to have a greater say in who can access their reports, Medical Protection said.

GMC complaint

It comes after the patient made an official complaint claiming their cancer had gone unnoticed due to the ‘avoidable and incompetent’ actions of the GP, causing their diagnosis to be delayed by one year.

The ensuing fitness to practise report concluded that although the GP’s care had fallen below the expected standard, it was ‘not seriously below’, and the GMC advised no further action be taken.

A legal dispute arose after the patient requested a full copy of this report from the GMC. The regulator initially agreed to release the report, despite the express refusal of consent from the GP.

The regulator’s stance was that the review contained personal data of both the patient and the GP, and choosing not to disclose the information could be seen as biased to one of the parties involved.

It added that releasing the information would also meet its own duty to act in a transparent way.

The GP argued that the data pertaining to him was the main focus of the report and that its release could damage his reputation or result in loss of control over its circulation, leaving it open to being misused.

High Court case

Medical Protection argued in court that the GMC had ‘unfairly prioritised its and [the patient’s] interests over the [GP’s] privacy rights’.

The GMC said there was a ‘strong case to justify providing [the patient] with a document that played a key part in the GMC’s decision to close his complaint at an early stage’.

The law states that if personal data of two parties are inextricably linked in the report – as was the case in this situation – a balancing exercise must be done to decide whether to release data.

The judge concluded that the GMC’s balancing exercise had ‘fallen into error and got the balance wrong’, ruling that it ‘never gave any real weight to [the GP’s] privacy rights as a data subject; and instead focused on [the patient’s] rights and the issue of transparency’.

The regulator should have started with a presumption against disclosure, recognising the difference between absence of consent and express refusal of consent, he said. The possibility of the information therein later being used against the GP ‘should have been a weighty factor in the scales’.

Mr Justice Soole added: ‘Having scrutinised the matter, I am persuaded that the GMC’s balancing exercise did not adequately reflect the factors which I have identified and gave undue weight to the factors on which they relied. Accordingly my conclusion is that the decision was unlawful.’

A Medical Protection spokeswoman said: ‘This has been an extremely helpful judgment for Medical Protection members – and the wider profession – as it is often the cause of great additional stress and anxiety, which usually comes at a time at which the doctor thought that case had been closed.’

A GMC spokesman told GPonline that it was ‘considering the judgment’.

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