X, R (on the application of) v General Medical Council

When a fitness to practise panel considers whether a voluntary erasure application should be heard publicly, it must balance the practitioner’s health, privacy and confidentiality interests against the public interest in an open hearing. The panel must assess medical evidence as a whole, including evidence of adverse effects from publicity, rather than isolate answers to a particular question. The public interest in explaining why scrutiny of serious allegations will not occur does not necessarily require disclosure of the specific diagnosis or prognosis. A generic description of a serious or severe health problem may adequately explain the decision while protecting confidentiality.

The claimant, a surgeon subject to an interim suspension order and facing misconduct, deficient performance and health allegations, applied to a Fitness to Practise Panel for voluntary erasure. The Panel decided that the application should be heard publicly, subject to private consideration of family matters and any health information beyond a reference to severe depression unlikely to be resolved in the near future.

The claimant challenged the permission to disclose that diagnosis and prognosis publicly. The issues were whether the Panel had applied the correct balancing exercise, acted irrationally, given adequate reasons, and complied with article 8 of the European Convention on Human Rights.

1. Claim allowed. The part of the Panel’s decision permitting public reference to the claimant’s severe depression and prognosis was quashed. The issue of what reference, if any, should be made publicly was remitted to the same Panel.
2. Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 establishes privacy as the starting point where the physical or mental health of a practitioner is being considered. The Panel must nevertheless determine whether a public hearing is appropriate by balancing the relevant health risk against the interests of patients, complainants and the wider public interest.
3. The Panel was entitled to consider the public interest in enabling the public to understand why a practitioner was permitted to avoid public scrutiny of serious allegations. That interest did not require publication of the specific diagnosis. A statement that the practitioner suffered from a severe health problem unlikely to be resolved in the near future could provide a legitimate explanation.
4. The Panel erred by focusing on particular answers from one medical examiner and treating the other examiner’s inconsistent answers as sufficient reason to prefer that evidence. Both experts had expressed concerns about publicity adversely affecting the claimant’s mental health and about the risk of suicide. Their evidence also indicated that the illness could not readily be separated from the relevant family circumstances.
5. The Panel therefore failed to assess the medical evidence as a whole and failed properly to balance the risk to the claimant against the incremental public benefit of disclosing “severe depression” rather than a generic serious or severe health problem. Its reasons strongly suggested an error of law.