Sustainability and Transformation Healthcheck 16/11/16
16th November 2016
It is an unfortunate fact that many NHS organisations have to investigate the professional competence of staff from time to time.
In Dr DB v General Medical Council a patient requested a copy of an expert report into a doctor’s professional competence under the Data Protection Act 1998 (the ‘Act’), given that it discussed the care provided by the doctor to the patient and therefore amounted to their personal data under the Act.
The GMC considered the request, and the patient’s rights under the Act, and decided to disclose the report.
However, the doctor challenged that decision through the High Court.
The High Court decided that the GMC had given insufficient weight to the:
presumption against disclosure,
doctor’s data and privacy rights given that the focus of the report was on his professional competence; and
doctor’s express refusal to consent to disclosure.
After balancing the doctor’s and patient’s competing privacy rights, the High Court concluded that the report should not be disclosed to the patient.
The Judge also said that, since the purpose of the request was to investigate potential litigation against the doctor, the appropriate procedure for disclosure was under Civil Procedure Rule 31 (which sets out rules for disclosure in litigation) rather than the Act. Notably, this conflicts with the view of other cases on this point.
The Judge considered that if the sole or dominant purpose of the request was litigious, then this was a weighty factor to consider in conducting the balancing exercise between competing privacy rights.
What does this mean for me?
This case is of persuasive authority only but it is still useful guidance for all NHS organisations and a stark reminder that organisations need to recognise that internal documents may be disclosable under the Act or in litigation.
You should proactively consider what steps can be taken to minimise risk when conducting internal investigations of employees.
How can Ward Hadaway help?
At Ward Hadaway our employment team is highly experienced in all aspects of employee relations including any resulting data protection and disclosure issues. Each case always turns on its own facts and we can help guide you through difficult cases.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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