DPA - Access request refused where GP exposed to negligence claim

The High Court has given some further guidance on the difficult balancing exercise where data make subject access requests (SAR) and there is potential litigation in view.

A GP has successfully overturned the General Medical Council’s (GMC) decision to disclose an expert report on his professional competence to a former patient following a SAR. The case arose out of a delay in diagnosis of bladder cancer and in the course of investigation the GMC obtained an independent expert’s report concerning the GP’s professional competence. A 1 page summary was sent by the GMC to the patient, the patient then submitted a SAR. The GP refused consent on the basis that it was his personal data and that the purpose of the request was litigation. The GMC however decided to disclose the report taking into account of the importance of the transparency of its decision making process. The High Court acknowledged the competing rights of both patient and GP. However, following Court of Appeal guidelines in a 2003 case, the GMC’s starting point should have been against disclosure where litigation was to follow. The GMC failed to give adequate reflection in the balancing exercise to the fact that the data was arguably primarily that of the GP’s rather than the patients as it centred on his professional competence. The refusal of the GP to consent to disclosure should have been given more weight. Other routes to disclosure using court procedures were available if litigation followed and that was also a consideration. Some useful guidance was provided by the Judge.

Note: Section 7 of the Data Protection Act 1998 provides that individuals have the right of access to their personal data. Third party interests are protected by Section 7(4) and (5). The data controller often has to balance the rights of the SAR against the rights of an identifiable individual who may refuse consent. Section 7(6) identifies four non-exhaustive factors in the balancing factors in the balancing exercise and the case centred on this provision. Civil Procedure Rule 31 provides for the disclosure of documents in civil proceedings.

For further information on data protection please contact Holly Dobson on 0114 224 2121 or at holly.dobson@wake-smith.com

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