At the heart of the judgment in Richard v BBC lies the significant determination that “as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation”.
The Court recognised the significant reputational harm which can flow from the disclosure of allegations against an individual. In the context of this case the Court was considering the disclosure of the existence of an investigation, and police search, at a point in time when the allegations were untested and no decision had been taken as to whether to charge Sir Cliff.
Whilst much of the public discussion of Sir Cliff’s case will focus elsewhere, the judgment provides a useful opportunity to consider a long standing and unprincipled disparity between the treatment of doctors and that of dental professionals in the context of fitness to practise investigations.
The statutory regulators of the healthcare professions have powers to impose Interim Orders restricting a practitioner’s registration whilst their fitness to practise is being investigated. Those powers are available at the earliest stages of investigations, and referrals to the relevant Interim Orders panels can take place shortly after receipt of a complaint and before any active investigatory steps have been taken by the regulator.
Doctors referred to the Interim Orders Tribunal (IOT) can be confident that their hearing will be held in private, unless they specifically elect for a public hearing. That position is enshrined in the relevant procedural rule. There is then an entirely distinct rule governing final, fact-finding hearings before the Medical Practitioners Tribunal (MPT), where the default position is that the hearing will proceed in public, subject to the Tribunal’s discretion to sit in private.
In stark contrast, dental professionals appearing before the Interim Orders Committee (IOC) of the GDC face a public hearing, unless they can persuade the Committee to exercise its discretion and sit in private. That is because there is a single rule governing the conduct of GDC hearings, whether interim or final, which provides that the default position is that hearings are public but affords the Committee a discretion to sit in private. Whilst there is therefore consistency in approach between doctors and dental professionals in the context of final fact-finding hearings, the practical reality is that in most cases (outside of cases relating to the Registrant’s health those under investigation by the GDC face a public hearing before the IOC often at the very earliest stage of an investigation when the allegations or evidence leading to the hearing is untested. The determination of the IOC of the GDC in respect of a GDC registrant is published and is available online. In contrast, publication following an Interim Orders Tribunal hearing in respect of a doctor is limited to the terms of any restrictions which have been imposed on the doctor’s registration. The underlying reason for those restrictions is not published.
Mr Justice Mann’s conclusion that, prima facie, suspects have a reasonable expectation of privacy in respect of police investigations may prove useful to dentists and dental professionals seeking a private hearing before the IOC. It may seem obvious that the fact that allegations are untested and will cause unwarranted reputational harm is, on its own, a relevant factor in determining whether to exercise a discretion to sit in private that argument has been rejected by the IOC in the past. The decision in Richard v BBC will serve as a useful authority in support of such applications.
The disparity in treatment between doctors and dental professionals is surprising, and as noted above, unprincipled. It is also surprising that this disparate treatment has not been the subject of protest by the profession in the past. It would be helpful if the decision in Sir Cliff’s case prompted the GDC to issue guidance to the IOC on the exercise of the discretion to conduct Interim Orders hearings in private.
There is a further area where this judgment may be relevant. In a case of both GMC and GDC registrants, the regulator publishes the fact of an Interim Orders hearing taking place in their web based calendar of hearings, albeit without details of the allegation. This is akin to the naming of a suspect in a police investigation. As noted above, this can often happen at a very early stage in the regulator’s investigation process and is frequently a source of great concern to the registrant. It will be interesting to see whether the regulators reflect on that practice in light of the findings in the Richard case.