Kayode v Information Commissioner and the General Medical Council [2021]

Upper Tribunal dismiss appeal against GMC’s refusal to release fitness to practise information under FOI.

Appeal

Mr Kayode’s, the appellant, appeal concerned a request for information he had made under the Freedom of Information Act 2000 on 4 June 2019 to the General Medical Council (“GMC”). The information sought by Mr Kayode was “a copy of the Fitness to Practice Panel determination in the Fitness to Practice proceedings involving [a named doctor]”.

In 2007 the GMC had erased the doctor whose determination was the subject of Mr Kayode’s request from its register. Full details of the erasure, including the subsequent fitness to practice determination were held on the register, and accessible as such, until February 2018. However, on 26 February 2018 the GMC put in place a “Publication and Disclosure Policy ­ Fitness to Practise”, made pursuant to section 35B(4) of the Medical Act 1983.

Under that policy the determination sought by Mr Kayode was no longer made available to members of the public by the GMC from the date this policy took effect. This was because the policy from 26 February 2018 provided that a determination in respect of a decision by the GMC to erase a doctor from the medical register was only available for a period of 10 years. That period of 10 years had passed in respect of the doctor the subject of Mr Kayode’s request by the time when the policy took effect and so the link to the determination sought by Mr Kayode had been removed on 26 February 2018.

The essence of the GMC’s case was that it would be contrary to the doctor’s data protection rights to disclose the information sought by Mr Kayode beyond the 10-year publication period laid down in the policy.

The Information Commissioner issued a Decision Notice on Mr Kayode’s complaint on 25 November 2019. The decision was that the GMC had correctly applied section 40(2) of FOIA to withhold the information sought by Mr Kayode.  The First-tier Tribunal (General Regulatory Chamber), Judge Alison McKenna dismissed Mr Kayode’s appeal against the finding of the Information Commissioner.

Wright J upheld the view taken by the First-tier Tribunal that held however that:

“there could be specific reasons why a person in another country would wish to know why a doctor practising in that country has been erased from the register in the UK, and access to the fitness to practice determination would be a necessary means of meeting that legitimate interest. Such a factor could … tip the balance in favour of disclosure, but no such case was being made in respect of the particular doctor in Mr Kayode’s request.”

Dismissing all the grounds of appeal, Judge Wright found, as the First-tier Tribunal did:

“…that section [section 35B(4) of the Medical Act 1983] does not impose any such obligation [statutory provision required disclosure by the GMC of the Fitness to Practice determinations] because the opening wording of section 35B(4) only provide that the GMC” shall publish in such manner as it sees fit …decisions….that relate to a finding that a person’s fitness to practice is impaired”. Reading that statutory wording as a whole I do not consider that it imposes a legal obligation on the GMC to publish all its fitness to practice determinations for an indefinite period or for more than 10 years.”

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