D v Secretary of State for Health

An alert letter may lawfully be issued, or maintained, after criminal or regulatory proceedings have ended without a conviction or adverse finding. The controlling question is whether there remains a genuine and reasonable fear that the practitioner poses a serious potential or actual risk to patients or staff. An alert letter is a protective employment measure, not a finding of guilt. The procedure does not generally require prior representations, provided that the practitioner receives reasons, can make representations after issue, and the letter remains under review. Disclosure to prospective healthcare employers may be lawful where it is relevant and proportionate. The court also recognised that the procedure must be used sparingly, reviewed regularly, and withdrawn when the safety concern has been removed.

The claimant, a doctor, challenged an alert letter issued by the Regional Director of Public Health after criminal allegations in 1991 and 1999 had resulted in acquittal, non-prosecution or discontinued regulatory proceedings. An earlier alert letter relating to the 1999 allegations had been cancelled, but a further letter was issued after the claimant’s former employer drew attention to the total number and similarity of the allegations.

The claimant alleged procedural unfairness, factual error, infringement of Articles 6 and 8 of the European Convention on Human Rights, and breach of the presumption of innocence under Article 6(2). The central issue was whether an alert letter could lawfully be issued on the basis of unproven allegations after criminal and regulatory processes had produced no adverse finding.

1. Application refused. The procedural defects were real: the earlier alert letter had not been reviewed promptly, the second letter was a new letter rather than a continuation, notification was late, and the reasons contained factual inaccuracies. They did not ultimately cause unfairness sufficient to justify judicial review because the claimant received reasons, made detailed representations, and those representations were considered.
2. The Health Service Circular entitled The Issue of Alert Letters for Health Professionals in England did not impose an absolute bar on issuing an alert letter after acquittal, non-prosecution or discontinued regulatory proceedings. Where there remained a genuine and not unreasonable fear that the practitioner posed a serious potential or actual risk, an alert letter could properly be issued. The exceptional references in the Circular and its supporting document were broad enough to cover such a case.
3. An alert letter was not a determination of guilt. Its purpose was to reduce risks arising from future employment and to enable prospective employers to obtain relevant information. The information concerning the repeated allegations was relevant to employment decisions.
4. Article 6(1) was not engaged because the alert process did not determine the claimant’s civil rights. If it was engaged, the opportunity for representations, continuing review, judicial review and proceedings under the Human Rights Act 1998 supplied adequate procedural protection. Article 6(2) was not infringed because the alert letter made no finding of guilt; alternatively, any interference was lawful and proportionate.
5. The alert letter did not engage Article 8(1) in relation to the claimant’s professional life. Alternatively, any interference was justified and proportionate under Article 8(2). The procedure extended beyond the protection of persons vulnerable by statute, and no authority established a general restriction to that category.
6. The alert letter had to remain subject to review. The defendant was required to reconsider it if circumstances changed, including if collusion between complainants emerged or the passage of time materially reduced the risk. The court observed that this unusual use of the procedure approached the limit of the Circular and required careful legal advice.

This was a first-instance judicial review application in the Administrative Court. The applications for judicial review were refused. Permission to appeal was granted only on the general issue whether an alert letter could be used after investigation or legal proceedings had ended without an adverse finding or after an acquittal.