General Medical Council: Restrictions On Expert Reports Lifted

The General Medical Council (GMC)'s Fitness to Practise investigations often see them commissioning an expert report into a professional's conduct. While it is uncomfortable to know your actions are being examined by another professional, doctors can at least be assured that the report will not be used for a claim for damages.

Or can they?

The Court of Appeal's recent decision in B v GMC [2018] EWCA Civ 1497 has potentially far reaching consequences, allowing the disclosure of an expert report to a patient where there was an underlying prospect of litigation. The data access rights of the patient trumped those of the doctor.

Background facts

Dr B is a general practitioner. P was his patient. He attended complaining of difficulties urinating. In September 2013, P was diagnosed with bladder cancer. P complained to the GMC about the treatment provided by Dr B. He alleged that there was an avoidable delay in diagnosis of one year.

The GMC began an investigation into Dr B. They instructed an expert report. Though the report was critical of a number of aspects, it did not find that his conduct fell "seriously below" the standard to be expected.

Case examiners decided that no further action was required. They told both Dr B and P, and provided a summary of the expert report's conclusions.

P subsequently made a Freedom of Information request for sight of the report. The GMC refused as the report contained personal data. Thereafter P made a subject access request under section 7 of the Data Protection Act 1998.

Dr B objected to disclosure of the expert report as it contained his personal data. He also objected as, in his view, the request was being used as a method of obtaining the report for the purposes of litigation.

First instance

At first instance, the court agreed with Dr B and granted an order preventing disclosure.

The court held that, where there was mixed personal data (the personal data of both Dr B and P) a balancing exercise had to be carried out. Where one party objected, there was a presumption against disclosure. The GMC had got the balance wrong. The focus of the report was the professional competence of Dr B and no account had been taken of his refusal. It was highly significant that the purpose of the request was to use the report in litigation.


The GMC appealed on four grounds, including:

That it was an error to hold that, in a case of "mixed personal data" there is a rebuttable presumption against disclosure; and That it...

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