R (on the application of Nakash) v Metropolitan Police Service and General Medical Council  EWHC 3810 (Admin) – read judgment
The High Court has ruled that although information obtained unlawfully by the police is admissible in regulatory proceedings (even if not in criminal proceedings), it “carries little weight” in the assessment of competing interests required by Article 8(2).
The General Medical Council [“GMC”] has wide powers under section 35A Medical Act 1983 to require disclosure of information which appears relevant to the discharge of the Council’s statutory functions in respect of a practitioner’s fitness to practise.
Where the police are in possession of confidential material that they are reasonably persuaded is of some relevance to an investigation being conducted by the GMC, a doctor’s rights under Article 8 of the ECHR are not breached by the police disclosing that information, even where it was unlawfully obtained. However, the police must undertake the careful scrutiny and balancing exercise required by Article 8 before the decision as to disclosure is made.
This case provides a helpful reminder of the principles in the Court of Appeal’s decision in Woolgar v Chief Constable of Sussex Police  1 WLR 25, which remains the leading authority on the duties of the police regarding the disclosure of confidential material to a regulatory body. That case concerned the disclosure of police interviews to a nurse’s regulatory body, without her consent, and where there was insufficient evidence to prosecute. The Court held:
- what is said in a police interview is undoubtedly confidential;
- it may nevertheless be disclosable to a regulator without the consent of the interviewee where it is justified by the public interest in the proper functioning of the regulator, or to put it in Convention terms, where the disclosure is necessary in the interests of public safety, or for the protection of health or morals, or for the protection of the rights and freedoms or others;
- the police are, therefore, entitled to release the material if they are reasonably persuaded that it is of some relevance to the subject matter of the regulator’s inquiry;
- this is so, even if there is no request for disclosure from the regulatory body, but in every case the competing public interests must be considered before disclosure is made;
- confidentiality attaching to the material is maintained after disclosure, save that it might be used by the regulatory body for the purposes of its own inquiry;
- where it is decided to disclose, the police should, where practical, inform the person affected of what they propose to do in such time as to enable that person, if so advised, to seek assistance from the court.
The instant case raised similar issues to those in Woolgar, save for the additional fact that one of the two pieces of information under consideration had been obtained unlawfully and there were criticisms of the manner in which the police interview with Dr Nakash had been conducted.
The doctor faced an allegation by a patient of sexual assault, in respect of which he was acquitted by a jury. He sought to challenge the disclosure by the police to the GMC of his private internet communications with a third party, in which he referred to his sexual arousal during a conversation with a different patient some three weeks before the incident giving rise to the prosecution; this communication had been obtained unlawfully and was inadmissible in the criminal proceedings. It was argued that disclosure to the regulator in the particular circumstances of this case would be wholly disproportionate and not justified under Article 8(2).
The disclosure of his police interview was also challenged on the ground of its limited probative value, and arguments in favour of disclosure were far outweighed by the circumstances in which it was conducted, including a deceitful suggestion by the police that the matter was not serious, the absence of advance disclosure and the effective denial of a solicitor.
The Court’s findings
Cox J found that the police had been in error in failing properly to undertake the balancing exercise of competing interests required by Article 8 and as contemplated by the Court of Appeal in Woolgar:
Since the primary decision as to disclosure will be made in these cases by the police, it is important that before the decision to disclose is made, there is a rational assessment of the relevant competing interests and that consideration is given in each case to the extent of the interference, and whether the disclosure sought is in accordance with the law and is a proportionate response to a legitimate aim, as required by Article 8(2). [para. 46]
In undertaking the balancing exercise afresh, the Court found that the fact that the unlawfully obtained internet correspondence carried little weight and did not outweigh the legitimate aim served by its disclosure under s.35A, namely to enable the GMC, in the exercise of its statutory functions, to protect public health and safety and to protect the rights and freedoms of others.
The inadmissibility of the internet communication in the criminal proceedings did not render it immune from disclosure under s.35A Medical Act 1983. As for relevance, where there might be different interpretations of the information, it is for the regulator to determine which is correct, and whether there are further lines of enquiry to be pursued, the scope of the GMC’s enquiry being broader than the criminal enquiry. In the circumstances the internet communication could not be said to be irrelevant to the GMC’s investigation (paras. 59-61). In considering the disclosure of the police interview, which had to be taken a whole, the Court took into account the criticisms of the interviewing process, along with the fact that the doctor had been cautioned and the interviews were accurately transcribed, and concluded that disclosure to the GMC was reasonable and justified.
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