Dr D, R (on the application of) v Secretary of State for Health

Disclosure by a public authority of unproved allegations about a professional to prospective employers is lawful only where there is a pressing need for disclosure. The decision requires a fact-sensitive balance between the subject’s interests and those of the proposed recipients or persons they protect. The nature and strength of the allegations and the vulnerability of those at risk are central. Serious interference with an individual’s interests requires substantial justification. Article 8 proportionality asks the same question. Multiple similar allegations may establish a pressing need even though criminal or regulatory proceedings produced no adverse finding, provided recipients are told that no misconduct has been established.

Dr D, a doctor, sought judicial review of the maintenance of an Alert Letter informing prospective healthcare employers that they should contact his former NHS employer. Earlier allegations of sexual assault had resulted in acquittal or no completed regulatory finding. The first Alert Letter was cancelled, then a second was issued on the same material and maintained after Dr D made detailed representations.

Calvert-Smith J refused the application in the Administrative Court on 13 December 2005. The appeal concerned whether the February 2005 decision to maintain the Alert Letter was lawful despite procedural errors, the absence of new evidence, the unproved allegations and the alleged requirements of domestic public law and the European Convention on Human Rights.

The Court of Appeal, in a lead judgment by Laws LJ with which Longmore LJ and Ward LJ agreed, dismissed the appeal.

1. The earlier procedural errors did not invalidate the decision of 15 February 2005. That decision followed full representations and had to be assessed on its own merits. Cancellation of the first Alert Letter created no estoppel or legitimate expectation that another could not be issued without new evidence.
2. The Circular permitted an Alert Letter to remain in exceptional circumstances after criminal or regulatory processes had ended without prosecution or an adverse finding. The second Alert Letter was therefore not inconsistent with the policy.
3. A public authority has no unfettered discretion. The Wednesbury principle remains relevant in some contexts, but a measure that is gravely prejudicial to an individual and justified by protecting others requires substantial justification. The common-law test for disclosure was whether there was a pressing need.
4. That test requires a fact-sensitive balance between the subject’s interests and those of the proposed recipient or persons protected by disclosure. The inquiry is not mechanistic. Objective evidential force matters more than the decision-maker’s subjective belief. The nature and strength of the allegations, the legitimate interest in disclosure, the risk without disclosure and the vulnerability of those to be protected are relevant.
5. The law does not confine disclosure to cases involving children or statutorily vulnerable persons. The relevant category is vulnerable persons generally. An acquittal or absence of regulatory findings does not prevent disclosure where the pressing-need test is met. The seven similar allegations from six unrelated patients made the risk more than fanciful, and the Alert Letter was at least the minimum protective measure, particularly because recipients were to be told that no misconduct had been established. The similar-facts evidence rule in R v Z [2000] 2 AC 483 did not answer the issue.
6. Assuming an interference with private life, Article 8 proportionality raised the same question as the common-law pressing-need test. Protection of patients from sexual assault was a legitimate aim. The Court also held that Article 1 Protocol 1 and Article 6(2) did not apply.

The Regional Director of Public Health remained under a positive duty to monitor the Alert Letter. Reviews should occur at intervals of no more than six months, using up-to-date information and keeping continuation under critical scrutiny.

• Court of Appeal (Civil Division): Appeal dismissed. [2006] EWCA Civ 989.
• Administrative Court: Calvert-Smith J refused Dr D’s application for judicial review on 13 December 2005.