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This week, we tackle a complex issue in regulatory proceedings: publishing cases at the final hearing stage and the rare scenarios where anonymity can be granted. Our spotlight is on the case of General Medical Council v X [2019] EWHC 493 (Admin).
Background
Dr X, a paediatric specialist with expertise in neonatal care, faced allegations of sexual misconduct and dishonesty. These allegations stemmed from an online conversation with an adult posing as a 15-year-old, as part of a vigilante group. On 18 December 2017, the Medical Practitioners Tribunal (MPT) upheld the allegations. Following this, the MPT suspended Dr X’s medical registration for 12 months on 15 June 2018, subject to review.
The MPT held hearings privately, citing evidence that public disclosure of Dr X’s sexual orientation and misconduct could pose a severe suicide risk. After receiving the sanction, Dr X asked the General Medical Council (GMC) to limit the publication of the decision to just the fact of the suspension, again citing the suicide risk. On 17 July 2018, the GMC denied this request in part, agreeing only to redact information about gender and sexuality from the determination.
The GMC appealed the sanction under Section 40A of the Medical Act 1983, while Dr X filed for judicial review of the GMC’s decision to publish the findings. Soole J dismissed the GMC’s appeal against the sanction.
Judicial Review: Anonymity vs Publication
Before the MPT issued its final decision on 15 June 2018, Dr X’s solicitors corresponded with the GMC about the publication of the tribunal’s findings. They relied on the same psychiatric evidence presented during the private hearings to justify restrictions on publication. On 6 July 2018, Dr X’s legal team argued that the public record should state only that Dr X was suspended for 12 months due to professional misconduct.
The arguments presented by Dr X included:
- Risk to Life (Article 2, ECHR): Publishing the decision could significantly increase the risk of suicide, engaging the right to life under Article 2 of the European Convention on Human Rights (ECHR).
- GMC’s Discretionary Power: Under Section 35B(2) of the Medical Act 1983, the GMC has the discretion to decide how fitness-to-practise information is published.
- Human Rights Compatibility: The GMC must exercise its publication duties under Section 35B(4) of the Medical Act 1983 rationally and in line with Dr X’s ECHR rights, particularly Articles 2 (right to life) and 8 (right to private life).
- Proportionate Disclosure: The GMC could fulfil its obligations by limiting publication to the fact that Dr X’s fitness to practise was impaired, without revealing further details that could exacerbate the suicide risk.
- Confidential Access: The GMC could still provide specific information to authorised parties, like prospective employers, under strict confidentiality.
- Unlawful Decision: Publishing the decision as proposed would be:
- Unreasonable: Violating public law principles (Wednesbury unreasonableness).
- Incompatible with Human Rights: Breaching the GMC’s duty under the Human Rights Act 1998 to act compatibly with Dr X’s rights.
The GMC’s Position
The GMC argued that publishing case details was essential to protect the public interest. They acknowledged Dr X’s concerns about the disclosure of their sexuality but emphasised that this detail was not central to the misconduct allegations. Instead, the focus was on Dr X engaging in inappropriate conversations with someone they believed to be underage.
To address these concerns, the GMC proposed redacting sensitive personal details. This approach aligned with their policy of treating health-related information as confidential.
The Legal Framework
The publication of MPT decisions must balance statutory obligations and human rights law:
- Human Rights Act 1998: Public authorities must act compatibly with Convention rights and interpret legislation accordingly.
- Medical Act 1983: The GMC’s main objective is to protect public health and safety, which includes publishing tribunal outcomes.
- GMC’s Disclosure Policy: Aims to balance transparency with proportionality.
Key Findings in the Case
The court ruled in favour of Dr X, granting anonymity and recognising the exceptional nature of the case:
- Suicide Risk: Strong evidence showed a real and immediate suicide risk, which outweighed the public interest in disclosure.
- Statutory Obligations Not Absolute: The GMC’s duties to publish decisions must consider human rights, particularly the right to life under Article 2.
- Patient Safety Assured: Suspending Dr X’s practice sufficiently protected patients without public disclosure.
- Redaction Insufficient: Simply removing references to gender and sexuality wouldn’t adequately reduce the risk.
- Human Rights Breach: Publishing the decision would violate Dr X’s Article 2 rights.
Key Takeaways
This case highlights the delicate balance between regulatory transparency and individual rights:
- Balancing Public Interest and Human Rights: Transparency must be weighed against rights like the right to life.
- Exceptional Circumstances: In rare situations, an individual’s right to life may outweigh the public’s interest in disclosure.
- Evidence-Driven Decisions: Expert evidence is vital in assessing risks tied to publication.
- Flexibility in Obligations: Regulatory duties to publish aren’t absolute and can be adapted in exceptional cases.
- Case-Specific Judgements: Each case requires an assessment of its unique facts and risks.
How Regulation Resolution Solicitors Can Help
With over a decade of experience representing regulators and individuals, our team specialises in complex cases involving fitness-to-practise and human rights considerations.
Contact us today at info@regulationresolution.co.uk or 0208 088 5161 for a free case evaluation.