Brownlie v Four Seasons Group
At present, any sanction imposed upon a doctor by the General Medical Council (GMC) is published on the GMC website and disclosed to anyone who requests it. Even once no longer effective, all sanctions imposed since 2005 remain on-line indefinitely; details of suspensions, conditions, undertakings and erasures from the medical register all appear on the GMC website forever.
In a recently published consultation, the GMC has proposed new time limits detailing how sanctions applied to doctors after adverse disciplinary findings are made available to the public and published online. The GMC is considering whether, after the expiry of any such time limit that may be set, this information should no longer be publically disclosable or available online. We ask whether, given the indelibility of on-line information, this a futile exercise.
Setting the new limits: a futile exercise?
It is suggested that the time limit set for length of publication in each case might be dependent on the sanction imposed, whether the doctor is still practicing and the demands of the public interest: beyond that, the limits are yet to be drawn up.
Recent changes to the law on the rehabilitation of criminal offenders that came into force last year have resulted in a redrawing of the boundaries between spent and unspent convictions, including changing when and how these are disclosable. The GMC may wish to utilise a similar approach in relation to doctors; affording protection from the cloud hanging over their career once the issue in relation to their practice has been addressed, whilst at the same time ensuring that sufficient records exist so that the public interest in transparent justice is maintained.
There are numerous approaches the GMC might choose to adopt. The Health and Care Professions Council and General Optical Council for example have an approach whereby the sanction is only published online for as long as it is in force. The General Chiropractic Council adopts a similar approach, but extend publication for a year after the operative date. The GMC may decide to allow this issue to be determined at the sanction stage of the final hearing so that decisions on publication can be made on a case by case basis.
Whilst it is plainly important that the GMC puts in place proportionate and fair rules prescribing the appropriate time limits for publication of sanctions, this is only one part of the picture; material published online can potentially be available indefinitely. Many internet search engines manage information by ‘caching’, which involves storing a snapshot of a webpage in a database; historical GMC webpages may remain available on internet search engines despite being removed from the GMC website.
More (historic) decisions to go on-line
Also being consulted on is a possible increase in the range of published decisions. As it presently stands only GMC sanctions from 2005 onwards are published on its website, as this is when electronic records began. However, the GMC now seeks to publish online all sanctions imposed between 1994 to 2005 in cases where the doctor is still registered.
Consistent with its remit of protecting the public, the GMC seeks to give patients more information about those treating them, whilst giving scant regard to the effect on those practitioners involved as a result of this change of policy. If the fitness to practice decision is particularly old or the doctor is no longer practicing, the publication of the decision on line is arguably disproportionate. How will the GMC strike the balance and ensure that only useful and relevant information is provided to the public?
It is for the GMC to listen to doctors in particular to assist them in determining how they wish to manage the difficult responsibility they bear in striking a fair balance on this sensitive and important issue.
The consultation is open until 23 September 2015.
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