GMC’s ‘Neither Confirm nor Deny’ Policy with Respect to Groundless Complaints Wins Support in the Upper Tribunal

Jasper Gold

Myhill v (1) The Information Commissioner and (2) The General Medical Counsel

References to paragraphs in the judgment in square brackets 

Introduction

In Myhill, Upper Tribunal Judge West heard an appeal from the FTT (General Regulatory Chamber)(Information Rights). The Appellant, Dr Myhill, appeared in person. The issue at the heart of the case was whether the GMC had been correct to adopt a policy of “neither confirm nor deny” (‘NCND’) when Dr Myhill sought, under the Freedom of Information Act 2000 (‘FOIA’) to be told whether the GMC held information constituting an evidence base for its decision not to investigate a fitness to practice complaint made by Dr Myhill against several third parties in 2018.

Procedural History

In December 2019 the ICO issued a decision notice finding that the GMC’s response of NCND was not unlawful, and that the GMC was correct in its application of s. 40(5B)(a)(i), FOIA. Dr Myhill appealed unsuccessfully to the FTT in 2021.

Section 40(5B), FOIA creates an exemption from the FOIA where confirming or denying that the recipient held the information sought would, roughly, violate data protection law. The basis of the GMC’s refusal to confirm or deny was that doing so would reveal whether complaints about the third parties had been made to the GMC, which would involve disclosing those third parties’ personal data.

The GMC’s policy was not to disclose complaints which did not meet the threshold of investigation. The Information Commissioner initially decided that whilst there was a legitimate interest in disclosure under article 6(1)(f), GDPR, it was outweighed by the data subjects’ rights, in particular the right to privacy [8].

The Tribunal

The FTT considered that this raised four questions:

(1) did confirming or denying reveal third parties’ personal data;

(2) would the recipient of that data be pursuing a legitimate interest;

(3) is disclosure (i.e. confirmation or denial) necessary for the purposes of those interests; and

(4) are any such interests overridden by the interests or fundamental rights and freedoms of the data subjects? ([9]).

The FTT decided that the answer to the first question was that confirming or denying would involve disclosing the personal data of the third parties: it involved specific information about complaints against identifiable individuals. The fact that the question did not ask for personal information did not change the fact that answering it would reveal personal information [10].

All parties agreed that the answer to the second question was that there was a legitimate interest. On the third question, a proportionality analysis was applied and the FTT decided that confirmation or denial was reasonably necessary if the public interest identified, i.e. transparency and public interest in understanding how the GMC dealt with the issue, was to be furthered.

Turning to the fourth question, the Tribunal noted that the GMC had a policy in place that they would generally nor disclose complaints which did not result in a warning, undertakings or a hearing, or an interim order being imposed. They then found that the Doctors’ data protection rights outweighed the public interest in disclosure. This came from the reasonable expectation of privacy which arose from the GMC policy, as well as the damage disclosure would do to the individual doctor.

They did hold that the question was “finely balanced”, disagreeing with the GMC/ICO that the appellant’s interests were very weak, and only found for the GMC by a majority. Dissenting, one member of the FTT noted the political significance of the information sought (which had been subject to debates in Parliament), and Dr Myhill’s deep professional interest in the information, which ultimately went to the propriety of national guidelines in a contested area of evidence-based medicine [12].

The Appeal

Dr Myhill’s four grounds of appeal were [17]:

(1) that an ICO decision found that public interest favoured her not the GMC;

(2) the dissent was correct;

(3) new evidence weighed in favour of disclosure; and

(4) the ICO was allowing the GMC to get away with intellectual dishonesty that might amount to misconduct in public office.

Having reviewed a range of previous authorities, the Court went on (at [27]) to address the four grounds of appeal. The court dealt quickly with the first and fourth grounds: on the first ground, the relevant ICO decision did not mandate disclosure, but a FOIA-compliant response, which the GMC’s approach (neither to confirm nor deny) was. It was also not appealed, which it could have been [29]. As to the fourth, there was simply no evidence of intellectual dishonesty [53].

The second ground was dealt with equally quickly. Despite the court having already accepted that the difference between the majority and the dissent on the questions of balancing interests, there was no error of law involved in the majority’s approach, and an error of law, rather than a difference of judgment, was required to overturn the first instance decision [32]. The court went on to consider, obiter, whether the fact of a reference in Parliament identifying one of the doctors who had been subject to a complaint changed the balance of interests, holding that it did not.

Turning to the third ground, the court set out the nature of the new evidence (which was the publication of new NICE guidelines relevant to the complaints). Rejecting this ground, the court noted that it could not be an error of law for the first instance Tribunal to fail to take into account a document which, at the time of the impugned decision, did not exist [41]. The time at which the question of public interest falls to be determined is the date of the original refusal to disclose the information sought [46]. The answer, where new information has arisen, is not to appeal, but to submit a fresh request [47].

Comment

Dr Myhill is no stranger to wrangles with the GMC, having recently been handed a nine month suspension from practice for posting videos and articles recommending potentially harmful nutritional approaches as alternatives to Covid-19 vaccines, which she claimed were “irrelevant”.

In Myhill, she failed to convince the UT that the FTT’s approach to the FOIA was tainted by any error in law, illustrating both the complexity of the interaction between data protection and freedom of information and the perils of parties opting to represent themselves in appellate tribunals.

The case contains a number of interest takeaways for practitioners, set out above, including the obiter confirmation of the time as of which the public interest balancing is carried out when determining whether a refusal relying on s. 40(5B), FOIA is lawful (the time of the decision) and the proper course of action when new evidence arises casting doubt on such an assessment. The case also stands as a reaffirmation of the courts’ support for the GMC’s NCND policy – that policy strikes the balance of interests in such a way that the courts have effectively endorsed it as a scheme for responding to FOIA requests of the kind in this case.