The challenges of making a challenge

Read this article to:

• Understand the factors that are taken into consideration when making a challenge
• Understand the circumstances in which patients may seek disclosure of GMC expert reports after the case has been closed
• Understand how Medical Protection can help you to respond to requests from patients (and/or their instructed solicitor) to disclose GMC expert reports

Making a challenge – factors to consider

There are occasions when an individual case throws up an issue that has implications for the Medical Protection member involved, the Medical Protection membership and the medical profession in general. In such situations, we may seek a challenge.

Things to consider in such circumstances are:

• What is the mechanism of the challenge? (For example, appeal, judicial review etc.)
• Are there reasonable grounds for a challenge?
• What are the prospects of making a successful challenge? (Bearing in mind that an unsuccessful challenge may set an unhelpful precedent.)
• Does the individual member wish to pursue the challenge?

The case

In this case, a Medical Protection member was the subject of a complaint to the GMC in which the allegations amounted to a delay in diagnosis of carcinoma.

The GMC sought an expert report which had some minor criticisms but based on the report, together with submissions made by the Medical Protection legal team, the case was closed with no further action (other than advice).

Irrespective of the merits of a complaint, it is distressing for a doctor to be the subject of a GMC investigation and it comes as a relief when the matter has been closed. In this case, after the matter had been closed the GMC received a request from the patient’s solicitor for disclosure of the GMC expert report.

The motivation for requesting the report may vary but could include:

• The patient simply wanting to have a more in-depth understanding about why the GMC decision was made.
• In circumstances when the patient is unhappy with the GMC decision, they may be contemplating a challenge to that decision.
• The patient (and/or their instructed solicitor) may be seeking disclosure of the report to explore a potential claim (albeit in the context of the GMC investigation, an expert applies a different legal test).

In this case, it was clear that the patient’s solicitor was seeking disclosure of the GMC expert report in contemplation of a potential claim.

Dr Richard Stacey, head of policy & technical at Medical Protection, said: “When a case is closed with our assistance and no further action or advice, then it comes as a relief to the doctor we are supporting.

“Occasionally, we get requests for the disclosure of expert reports – often coming out of the blue for the doctor – and we would assist members in responding to these requests.

“Each case is dealt with on its merits and there may be occasions when it may well be of assistance for the complainant to see the expert report, however when there are reasonable objections to the report’s disclosure then we can make them on behalf of the member and in this particular case we put in an appeal.”

How did Medical Protection help?

In this case, the doctor’s preference was not to consent to sharing the GMC expert report with the patient’s instructed solicitor; therefore, representations were made to the GMC to that effect.

The GMC indicated that having considered the representations, it was their intention to share the GMC expert report with the patient. At this point careful consideration was given to the grounds for challenge, the prospects of success and – with the agreement of the doctor – it was decided to pursue a challenge by way of a judicial review.

The outcome

The issue in this case was that the GMC expert report contained sensitive personal data relating to both the patient and the doctor and, given the doctor’s preference not to share the GMC expert with the patient’s solicitor, two competing interests.

The judge that heard the case concluded that whilst the GMC expert report contained mixed sensitive personal data, the report had been commissioned for the purposes of assessing the doctor’s professional conduct, therefore in the event that the doctor declines their consent to share the report with the patient (or the patient’s solicitor) then the starting point should be a presumption against disclosure. The judge went on to say that if the purpose of the request for disclosure of the GMC expert report was in contemplation of litigation, then this will be a weighty factor against disclosure.

Subsequent to the judgement being made, in relation to this and other cases, Medical Protection was able to rely upon the case to prevent the disclosure of GMC expert reports to patients in circumstances when the doctor declined their consent to share the report.

New developments

The GMC chose to pursue an appeal to the Court of Appeal, which was heard earlier this year. Medical Protection opposed the appeal – but the judgement upheld it.

Dr Stacey added: “This case in particular provides useful points of reference for practitioners seeking to argue against disclosure of material of this nature.

“Irrespective of the GMC’s successful appeal, we will – when it is reasonable to do so – continue to challenge the intended disclosure of GMC expert reports to patients (and/or their instructed solicitor) and such decisions will be taken based on the individual circumstances of the case.”           

More support

Our medicolegal advice service is open to members with urgent queries and medicolegal emergencies 24 hours a day, 365 days a year.

If you have a concern, call 0800 561 9090 or email [email protected]