A v General Medical Council

A doctor’s duty of confidence does not give parents of a child an absolute power to prevent appropriate welfare concerns being raised. Unauthorised use or disclosure of confidential material is lawful where expressly or impliedly authorised, or justified in the overall public interest. That requires a fact-sensitive, proportionality-based balancing exercise between confidentiality and child welfare. Disclosure to professionals or public bodies with a role in evaluating the concern is materially different from general publication, and the necessity and extent of disclosure must be considered. The trigger in section 47 of the Children Act 1989 may justify intervention in an appropriate case, but it is not the universal test for every communication concerning a child’s welfare.

Miss A sought judicial review of the Professional Conduct Committee of the General Medical Council’s decision that Dr Cheetham was not guilty of serious professional misconduct. The complaint concerned his continued expression of professional concerns about Miss A’s treatment after her parents had asked him not to remain involved, including communications with doctors, the NHS Trust and the local authority.

The central issue was whether the Committee had failed to consider whether his conduct was an unjustified or disproportionate use or disclosure of confidential information, and whether that argument had formed part of the charge and issues before the Committee.

1. Application dismissed. The Professional Conduct Committee had not erred in law. The breach-of-confidence argument was not part of the charge or issues presented to it.
2. Parents’ wishes concerning treatment were entitled to very great respect, but did not give them complete control where the court or a public authority might properly intervene to promote the child’s welfare.
3. A duty of confidence permits use or disclosure only where expressly or impliedly authorised, or justified in the public interest. Competing interests require a fact-sensitive, proportionality-based balancing exercise.
4. Limited disclosure to professionals or public bodies with a role in evaluating child-welfare concerns is materially different from general publication. Necessity, purpose and the extent of disclosure must be considered.
5. The section 47 trigger in the Children Act 1989 was appropriate in this case, but was not the universal test for every communication concerning a child’s welfare.
6. The Committee’s reference to a doctor’s “right to intervene” was infelicitous but did not amount to an error of law.