R (on the application of Nakash) v Metropolitan Police Service and General Medical Council (interested party)[2014] EWHC 3810 (Admin)

A doctor has failed in his attempt to prevent the police from disclosing material to the General Medical Council (GMC). The material in question had been obtained unlawfully by the police and in breach of the doctor's Article 8 rights. The doctor's arguments that the material included highly personal information which had no relevance to his fitness to practise failed.

Background

Dr N was a specialist registrar in the obstetrics and gynaecology department at the Royal Free Hospital in London. A female patient, M, made an allegation that Dr N had sexually assaulted her during the course of an intimate examination. The police were informed. Dr N was suspended from work.

Dr N contacted the Medical Defence Union which advised him that he should not say anything to his employers or to the police without first receiving legal advice.

Dr N was arrested the following day. The police officer in charge of the investigation was DC Ryan. The arrest was unlawful as Dr N was not told why he was being arrested. He was not told the grounds for his arrest and there was no consideration given by the police as to the necessity for his arrest.

Dr N's home was searched and computers were seized. This was done in exercise of powers under Section 18 of the Police and Criminal Evidence Act 1984. As that power is only available following a lawful arrest, the search and seizure were also unlawful.

Dr N was then interviewed at the police station without legal representation. He alleged that he was told by DC Ryan that there was no need for him to have legal representation, although he accepted that before and during the interview he had his rights explained to him, had been cautioned, and been reminded of his right to legal representation. The questions put to him were, in part, improper in form and substance.

Separately, Skype correspondence was obtained from Dr N’s computers. This correspondence included an exchange between Dr N and another doctor in which Dr N stated that he had been sexually aroused during a conversation with another patient about three weeks before the allegation by M.

Following concerns about his performance, DC Ryan was suspended and later dismissed by the Metropolitan Police Service (MPS). He was later arrested on suspicion of perverting the course of justice and for misconduct in a public office.

Dr N was charged with sexual assault and assault by penetration. Dr N denied the charges.

Neither the record of the police interview nor the evidence from the Skype conversation was relied on at trial. Dr N was acquitted on both charges.

GMC involvement

Dr N was initially subject to an interim order which imposed conditions on his registration. After he was charged, he was subject to an interim suspension order. After acquittal, the interim order was varied to impose conditions on his registration.

The police informed the GMC that they had material relating to Dr N which had not been used at his trial. The GMC sought disclosure of this material, relying on the power in Section 35A of the Medical Act 1983.

The police decided that they would disclose the interview transcript and the extract from the Skype conversation.

Dr N challenged this decision by way of judicial review and submitted that the nature of the material and the circumstances in which it had been obtained meant that disclosure to the GMC would be unreasonable, disproportionate, and in breach of his Article 8 rights.

The legal framework

Section 35A of the Act allows the GMC to require the supply of information or for documents to be produced which appear relevant to the discharge of its functions.

In this case, the court noted the limited scope for challenging a request for disclosure under Section 35A (Wakefield v Channel 4 Television Corporation and others [2006] EWHC 3289 (QB)).

The court also considered the leading case in relation to the duties of the police when receiving a request for disclosure from a regulatory body. In that case, Woolgar v Chief Constable of Sussex Police and UKCC [2000]  WLR 25 (CA) (a case in which members of the Penningtons Manches professional regulation team were instructed), it was held that, while the content of a police interview are plainly confidential, disclosure may be justified in the public interest, even without consent.

It was submitted on behalf of Dr N that the material was not relevant to the GMC inquiry and that the fact that it had been illegally obtained distinguished this case from the situation in Woolgar.

The MPS and the GMC both accepted that Article 8 was engaged but the MPS submitted that the material was relevant and the fact that it had been illegally obtained did not exempt it from disclosure. It submitted that disclosure was proportionate and justified. The GMC, which had not seen the material, said that it appeared to be relevant and that, as such, disclosure did not violate Dr N's Article 8 rights because disclosure was justified in the circumstances.

Decision

In relation to the Skype extract, Mrs Justice Cox held that while “a very high degree of respect will attach to… private communications”, having considered the material it was clearly relevant to the GMC’s inquiry. As such, she held that arguments relating to the circumstances under which it had been obtained carried little weight. She found that disclosure of the material did not violate Dr N’s Article 8 rights.

In relation to the interview transcript, Mrs Justice Cox again balanced the relevance of the material with the circumstances in which it had been obtained. She held that disclosure was justified.