R (D) v Secretary of State for Health [2006] EWHC

This was an appeal against a refusal by the Administrative Court to grant judicial review of a decision made by a Regional Director of Public Health (RDPH), an agent of the Secretary of State, concerning what is known as an Alert Letter (AL).

The AL procedure is one in which a warning letter is issued by the RDPH where there is suspicion by an employer, that a doctor or other health professional, who poses a hazard to patients or staff, may move from their current NHS employer to work elsewhere in a medical or care capacity. When an AL is issued, a referral should be made to that person’s regulatory body.  The letter is intended to reduce the risk to patients of unsafe or poorly performing health professionals  until the appropriate regulatory body has had the chance to consider what action is appropriate.

Following allegations from four separate and unconnected female patients that D had indecently assaulted them during the course of medical examinations, he was charged with five counts of indecent assault.  D, who had surrendered his registration as a doctor, was subsequently acquitted of all charges. He was granted limited registration by the General Medical Council and he resumed work within the NHS.  After two years he was granted full registration.

Two years later, two further allegations of indecent assault were made; D was suspended and his contract not renewed and an AL was issued in accordance with HSC 2002/011. (S.17 National Health Service Act 1997 empowers the Secretary of State for Health to give directions to health authorities about the exercise of their functions.  One such direction is contained in Health Service Circular 2002/011). The CPS advised the police that there was insufficient evidence to prosecute D and he was informed that he would not be prosecuted.  The GMC found that there was no case to answer against D but the AL remained in place, without his knowledge.

D asked for the AL to be cancelled which was done but the Medical Director of the relevant NHS Trust expressed his concern to the RDHP about D and drew his attention to paragraph 7 of the circular, which allowed for ALs to be retained in appropriate cases, following a determination by the regulatory body. The Medical Director felt that this was an appropriate case.  His suspicion was that that D was selecting vulnerable patients on which to perpetrate sexual assaults and who would be seen as unreliable witnesses by a regulatory or prosecution body.

Due these suspicions another AL was issued to D with the reasons for this decision.  This was felt by the Trust to be a neutral act which merely gave a potential employer an opportunity to understand any concerns that may have been raised.  D’s solicitors responded to the AL and submitted that its issue was “unreasonable, irrational, disproportionate and violated (our) client’s human rights.”  The internal appeal against the AL was refused but D was offered every opportunity to participate in and assist with a full investigation.

In carrying out its processes for the issue of the AL, the court found that the Trust had made a number procedural errors which gave the court a cause for concern but the real question in the case was whether the issue of the second AL was unlawful or not.  No fresh events had happened after the first AL was cancelled which might have justified a second AL.  In effect what had happened was a change of mind by the Medical Director who asked for the issue of a second new AL without any new evidence.  However the court held that this no more availed D than the history of errors.  The cancellation of the first AL did not give rise to any form of estoppel and no argument was advanced by D that there was a legitimate expectation that no fresh AL would be issued without new evidence.  The real question was whether the material available sufficed to justify the initial issue of the AL or the maintenance of the second.

D submitted that it was (a) unlawful to issue an AL where there had been no adverse finding of conduct by a regulatory body or if this was not so, that (b) the procedural errors were so serious as to make the issue and maintenance of the AL invalid so that it should be quashed on grounds of unfairness.  The court held that arguments put forward by D to support these propositions failed.  It also disagreed with D’s submission that there should only be limited disclosure of information to employers of data concerning unproven allegations against a prospective member of staff.  What was needed was a principle, rather than a rule which imposed an arbitrary limit.  Ex parte AB (1999) considered.

The court went on to consider in what circumstances should a disclosure such as the one contained in D’s AL, be made.  It found a principle emanating from Article 8 ECHR which stresses that there should always be a ‘pressing need’ before disclosure is made in such circumstances.  A balance should be struck between the interests of the subject of the disclosure and the interests of the party to whom the disclosure is proposed to be made.  The court held that Article 8 was engaged in D’s case and that the other requirements which prevented the disclosure being unlawful were present.

Was the pressing need test met in this case?  The court decided that the potential risk posed by D to vulnerable women in his care was more than fanciful and went some way to demonstrating a pressing need for disclosure.  It also found that such a disclosure was necessary and proportionate in relation to the threat posed and was implemented in the least restrictive way possible.  There was nothing unlawful in relation to the maintenance of the second AL.

Appeal dismissed.

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