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DATE OF DECISION: 9 DECEMBER 2011
Consideration of the balancing act faced by Panels when considering a Registrant’s privacy on the one hand and the public interest in transparency and accountability on the other.
X, a Surgeon, faced two allegations of impairment of his fitness to practise, by reason of: (i) misconduct and/or deficient performance in relation to inadequate treatment of patients; and (ii) adverse health. Both allegations were to be considered by the General Medical Council’s (GMC’s) Fitness to Practise Panel at the same hearing.
At the hearing, X made an application for voluntary erasure on the basis that he was suffering from severe depression that was unlikely to be resolved in the near future. His request for the application to be heard in private was refused. The Panel determined that it was in the public interest that the application should be heard in public. X asked the Panel to reconsider this on the basis of evidence from two GMC medical examiners on the risk that X would self harm or commit suicide if the application were held publicly.
One examiner believed that public reference to X’s depression being severe would not worsen his condition but had concerns that that he was a suicide risk. When the Panel asked the examiner if she thought X’s health would be affected if only his diagnosis, severity of condition and prognosis were publicly disclosed and not details of his family circumstances, she did not think that it would have a detrimental effect on X. Relying on this view, the Panel decided that disclosure of X’s severe depression was unlikely to adversely affect his health, but that it would hear in private any reference to X’s family circumstances and any health condition and prognosis beyond ‘severe depression’.
X applied for judicial review of the Panel’s decision, submitting that the Panel misdirected itself as to the balancing exercise that it should undertake when weighing the public interest in placing the details of his condition and prognosis in the public domain against the private and public interest in respecting his privacy, and that it failed to consider the examiners’ evidence in its entirety.
The Administrative Court held that by focusing on the answers given by the examiners to a specific question, the Panel failed to have proper regard to their evidence as a whole. Both examiners considered that publicity would adversely affect X’s mental health and had concerns about the potential risk of suicide. The public interest in maintaining confidence in the medical profession meant that there was a public interest in knowing that there was a legitimate reason for gaining a voluntary erasure application, but it did not follow that the public interest required disclosure of the specific nature of X’s illness. The Panel had misdirected itself as to the balancing exercise it had to undertake. The part of the Panel’s decision ordering that there should be reference to X’s severe depression in public was quashed.
This decision reflects that although the public interest required disclosure of a legitimate reason for granting X’s application for voluntary erasure from the medical register (in this case, that he was suffering from a severe health problem) that public interest did not require disclosure of the specific nature of his illness given the circumstances in this case. This case highlights the balancing act faced by Panels when weighing up considerations in the public interest, for example transparency and accountability, as against a Registrant’s right to privacy.
Rekha Randhawa, Legal Assistant
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