High Court considers the balance between a registrant’s right to privacy as against the public interest in regulators having access to relevant material.
The Claimant in this application invited the Court to prohibit the disclosure by the Metropolitan Police Service (MPS) of material requested by the General Medical Council (GMC) on the basis that; it was unlawfully obtained by the police, in breach of the Claimant’s Article 8 rights; that it included material of a highly personal and confidential nature; and that the material had no relevance to the issue of the Claimant’s fitness to practise as a doctor.
In June 2011, the Claimant was working as a Specialist Registrar in the Obstetrics and Gynaecology Department of the Royal Free Hospital in London. On 5 June 2011, he carried out a trans-vaginal scan on a young female patient (M) who later that day made a complaint of sexual assault against him. The police were duly contacted. It was not in dispute for the purposes of the present proceedings that the police action that took place imminently after this referral was unlawful. The Claimant’s arrest was unlawful by virtue of the fact that the Claimant had not been informed of the grounds for arrest. The necessary corollary of this unlawful arrest was that the subsequent search of the Claimant’s home was also unlawful.
The Claimant, despite advice from his professional union not to say anything, was persuaded by the officer in charge to provide a full account in interview on 6 June 2011. The Claimant gave a detailed response to a wide-ranging series of questions about M’s complaint and the surrounding circumstances. There had been no advance disclosure and at times the questions asked were improper, however the Claimant did have his rights explained to him and was reminded of his right to legal representation.
The officer in the case was later to be arrested on suspension of perverting the course of justice and for misconduct in a public office (in relation to other matters) and dismissed by the MPS in January 2013. The case was taken over by another officer and the Claimant charged in August 2012 with sexual assault and assault by penetration. The CPS did not rely on the original officer as a credible witness and did not rely on the interview conducted on 6 June 2011. The Claimant was acquitted on both charges in July 2013. The GMC (who had of course been aware of proceedings) then began their own investigation, which was to include speaking to M. Tragically, M committed suicide on 8 August 2013.
As part of their investigation, the GMC, relying on s35A of the Medical Act 1983, requested that the police provide a copy of the police file, including the material not adduced at trial. The MPS decided that the interview should be provided to the GMC and indicated that they intended to disclose the same. They also were prepared to disclose an extract from a Skype conversation that had been seized by the police during their unlawful search of the Claimant’s property. The extract was a small section of a larger chain of correspondence between the Claimant and a friend known as ‘W’ which was personal and intimate in nature. In the extract the Claimant made references to his own sexual arousal during a previous conversation with a different patient, just three weeks before the incident with M.
The relevant law
The Court (Cox J) drew attention to the primary role of the GMC being to ‘protect, promote and maintain the health and safety of the public’ and considered the wide powers granted by statue in the form of s.35A. It was common ground that the section is ‘broad in scope and that it serves an important purpose’.
The leading case in relation to the duties of the police, when a request for disclosure is received from a regulatory body such as the GMC is Woolgar v Chief Constable of Sussex Police and UKCC  1 WLR 25 (CA). In that case, when considering whether the police should disclose information against a registered nurse, the Court had regard to Article 8 and the decision of the European Court of Human Rights in M.S. v Sweden  3BHRC 248. It was held that whilst in each case a balance has to be struck between competing interests, the legitimate interest of public protection meant that Article 8 (right to respect for private and family life) had not been infringed. It was said that a necessary part of regulation is the ensuring of the free flow of the best available information to those charged by statute with the responsibility to regulate. This was needed to keep the public safe and protect vulnerable people.
The first point taken by the Claimant was that it was clear that the MPS had not seemingly carried out such a careful balancing exercise. Whilst relevance was important, so too was the fact that this was personal and confidential material. The Court held that ‘there is nothing to indicate that, in arriving at their decision to disclose these documents in this case, the MPS carried out the careful balancing exercise of competing interests required by Article 8. In this I consider the MPS were in error’ . The Court therefore went on to carry out the balancing exercise afresh.
The Claimant attempted to distinguish Woolgar by pointing out that the material in that case had been obtained lawfully and was of obvious importance to the regulatory body requesting disclosure. In the present case, it was argued, the confidential material under consideration was of no relevance to the GMC inquiry and had been unlawfully obtained. It was further argued that there is a strong public interest in upholding the rule of law; the Court should refuse to allow the state to benefit from unlawful conduct by its agents.
Counsel on behalf of the MPS conceded that Article 8 was engaged. However, it was submitted that the Skype extract and the police interview were clearly of some relevance to the inquiry to be undertaken by the GMC and that there was a strong public interest in its disclosure.
On behalf of the GMC it was argued that, whilst without having sight of the documents it was difficult to fully consider their relevance, this exercise should be done by the GMC themselves when they have sight of them. If the material were unlawfully obtained, such a consideration carries little weight in the balancing of competing interests in this case. It was argued that the fact that the material was inadmissible in a criminal trial was not relevant to this Court’s task. The GMC required the information to properly carry out their statutory function.
With regard to the Skype extract, the Court accepted that it was a personal, private correspondence that was seized as a result of an unlawful seizure, which was a serious intrusion into the Claimant’s personal communication in the confines of his own home.
Despite this, it was held that;
‘While the extract may not, in itself, be probative of M’s complaint, or of any other complaint against the Claimant, or of there having been any specific act of misbehaviour by him, or even of any intended act, it is not necessary for the material to be directly probative in this sense in order for it to have relevance. The inquiry being carried out by the GMC, as a Claimant’s regulatory body, is broader than the focused inquiry of the CPS and Crown Court. In my view, this conversation cannot be said to be irrelevant to the GMC’s investigation into this Claimant’s fitness to practise’.  Further, ‘The fact that the Skype evidence was considered inadmissible at his criminal trial does not render it immune from disclosure under s35A’. 
Cox J went further;
I agree that, under Article 8, a very high degree of respect will attach to such private communications. However, where those observations relate directly to communications between doctor and patient in a clinical setting, they cannot be said to be irrelevant to an investigation by the GMC, who will be conducting a much broader inquiry and considering more than the question whether a criminal offence was committed against M on 5 June 2011….given my clear view as to the relevance of the Skype extract to the regulator’s inquiry, I accept Mr Steel’s submission that the circumstances in which it was obtained will carry little weight in the balancing exercise required under Article 8…The fact that the material was obtained unlawfully does not, in my judgement, outweigh the legitimate aim served by its disclosure under s35A’ 
The Court went on to hold that the police interview was also relevant and should be disclosed. Whilst the officer’s conduct and the absence of legal advice was of note, the Claimant was cautioned before interview and there was no suggestion that the transcript was inaccurate. The Court found that there was no evidence to suggest that he was seriously misled, or that his will was overborne as a result of what occurred.
Ultimately it was held that both items should be disclosed; ‘Notwithstanding the circumstances in which they were obtained their disclosure is, in my judgment, clearly justified under Article 8(2’) .
The claim was accordingly dismissed.
The Court here refused to distinguish or limit the case of Woolgar, often relied upon by regulators when seeking disclosure. In doing so, the Court reiterated the importance of regulators needing full disclosure in order to comply with their statutory obligations of protecting the public. However, it does serve as a reminder that only relevant material should be disclosed, and where the material is personal and private, even further scrutiny as to its relevance is required.