Brownlie v Four Seasons Group
Is the GDC obliged to apply to court for permission to use or disclose patient records for the purposes of its disciplinary functions?
The fourteen patients who were the interested parties in this case (X) had each taken out dental health insurance with HSA Simplyhealth Group (‘HSA’). Each had had dental work carried out by Dr Al-Naher (N), for which they had claimed reimbursement under their policies. X authorised the release of their patient records to the insurance company to enable it to understand and assess those claims. N certified that the claims made were proper in each case and provided the medical records to the insurance company.
The qualified dental assessors utilised by HSA suspected that in various cases the dental work had not in fact been carried out by N and that claims appeared to be fraudulent, and accordingly informed the GDC.
One HSA assessor informed the GDC in April 2008 about his concerns in relation to claims for reimbursement by the Second Interested Party, Mr Dikir. He did not enclose copies of the dental records. Another HAS assessor notified the GDC in January and July 2009, of concerns in relation to the claims of a further 13 patients. He did enclose the relevant patient records (some redacted, some not).
The GDC wrote to Mr Dikir and asked for his consent to the release of his dental records. He refused. They wrote to the HAS requiring it to produce Mr Dikir’s dental records, relying on its power under section 33B of the 1984 Dentists Act, and were successful. The GDC further requested, relying on the same provision, the details of the other thirteen patients so that they could seek their consent, which they duly did. Nine of those patients refused their consent and a further four did not respond.
Dr Al-Naher’s solicitors objected to the use of the patient records, and so the GDC issued proceedings to claim a declaration that it was entitled to use the patient records for the purpose of investigation by the Investigating Committee (‘IC’) and, if necessary, before a Practice Committee (‘PC’). They further wished the Court to confirm whether they could use patient records for FTP proceedings, absent patient consent, without applying for a court order.
It was argued on behalf of Dr Al-Naher that the GDC had acted unlawfully by requesting the patients’ records under s.33B of the 1984 Act; the proper course, without patient consent, was to apply to the county court for an order. It was further argued that given that the course of action was unlawful, the GDC could not demonstrate that its interferences with the patients’ Article 8(1) rights (everyone has the right to respect for his private and family life, his home and correspondence) was in accordance with the law, as required by Article 8(2).
The Honourable Mr Justice Sales did not accept these submissions and stated that ‘s. 33B(2) is entirely clear in its effect. It allows the GDC to impose a requirement on ‘any person (except the person in respect of whom the information or document is sought)’ to supply information or ‘any document in his custody or under his control which appears to the Council relevant to the discharge of those functions’. There was therefore no basis for any suggestion that the GDC had breached its obligations under Article 8.
In relation to the wider issue of use of patient notes within the GDC, the registrar was under an obligation to refer all evidential material relevant to the allegation to the IC when a matter was referred. Both the members of the IC and the PC were subject to common law duties of confidentiality owed to the patients and the dentist. It was stated that ‘the reason that the GDC is given statutory authority to make use of patient records in this way is because the public interest in investigation of allegations against dentists and other medical practitioners of impairment of fitness to practice has been assessed by Parliament to be so strong as to override private interests of patients in preserving confidentiality, to the extent necessary for the investigation to take place’.
It was clear that if a particular act of disclosure could not be justified under Article 8(2), a breach of Article 8 would occur if it took place. However, it was the view of the learned Judge that, applying similar reasoning to that employed in the leading Strasbourg case of MS v Sweden (1999) 28 EHRR 313, it was clear that the proposed disclosure in this case pursued a legitimate objective specified in Article 8(2), as being ‘in the interests of…public safety’, ‘for the protection of health and morals’ and ‘for the protection of the rights and freedoms of others’. The investigation of the allegations against Dr Al-Naher was necessary to ensure public confident in the profession. There were sufficient safeguards with respect to the protection of the patient’s interests.
In view of the strength of the public interest in allowing disclosure of the patient records for the GDC investigation and the safeguards which are in place to ensure that the records are only used for that purpose, Article 8 cannot be taken to impose an obligation on the GDC to obtain an order of the court before arranging for the onward disclosure of the patient records to the IC and then to a PC. The ECtHR had not identified any such obligation in MS v Sweden. Indeed, if the GDC were so obliged in every case, expense and depletion of time and resources would have a detrimental impact on their important investigatory functions.
However, it was noted that ‘it will usually be a matter of good practice (albeit not a legal obligation) to inform the patients in advance about what the GDC proposes to do with records, so that they have an opportunity to consider whether to make objections to that course and if need be apply to court to raise such objections’.
Amicie Knowles, Legal Assistant
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