A summary of recent developments in insurance, reinsurance and litigation law.
This Week's Caselaw
DB v The General Medical Council: Data access requests where there are competing privacy interests
A patient alleged that the claimant GP had misdiagnosed him. He submitted a subject access request under section 7 of the Data Protection Act 1998 to the General Medical Council ("GMC"). The claimant argued that an expert report obtained by the GMC for the purpose of investigating the patient's complaint should not be disclosed to the patient (even though it contained personal data relating to the patient) as this would breach his right of privacy as a data subject. Accordingly, the case involved the competing privacy rights of the patient and the GP in the personal data contained in the report.
In such circumstances, a balancing exercise must be carried out. The GMC held that the report should be disclosed and the claimant then brought proceedings to prevent disclosure.
Soole J held as follows:
- In the absence of consent, there is a rebuttable presumption against disclosure. The express refusal of consent is also a factor to be taken into account.
- There is prior conflicting caselaw as to whether the purpose for the request is a factor which should be taken into account in the balancing exercise. The GMC conceded (rightly, in the judge's view) that the requester's intention to use the information in furtherance of litigation was a factor which could be taken into account. The judge concluded that: "if it appears that the sole or dominant purpose is to obtain a document for the purpose of a claim against the other data subject, that is a weighty factor in favour of refusal, on the basis that the more appropriate forum is the Court procedure under CPR 31". The judge also noted that obtaining information in order to use it in intended litigation was not the purpose contemplated by the relevant EU Directive (namely, to protect the requester's privacy by ensuring the accuracy of personal data).
Accordingly, the patient was not entitled to disclosure of the report.