Can a doctor’s name be anonymised in GMC proceedings?

Anonymity in GMC Proceedings

Doctors often ask whether their case can be heard in private and their case avoid publication of findings, by way of anonymisation. Regrettably, the general rule is that GMC/MPT cases are to be held in the public arena and that all judgments are to be published – in the public interest. It would therefore be only exceptional circumstances that might justify a departure from the general rule, for a case to be heard entirely in private. See our article on: Private Hearings in GMC and MPTS Doctors’ Cases for more information.

IOT hearings by contrast are always held in private, and the full justification for any order made is seldom published. Usually, just the conditions are published on the GMC website. If the case relates to health, those conditions will not be published in the public domain.

General Rules in Regulatory Proceedings

The courts and tribunals must ensure that there is public confidence in legal proceedings. To that end, the starting point is that all cases will be heard in public, other than family law cases heard in the family courts. In the case: Various laimants v Independent Parliamentary Standards Authority [2021] EWHC 2020 (QB) at paragraphs [46] and [52], Mr Justice Nicklin held:

“46. I refuse the Claimants’ Application for anonymity (including being excused from the requirement to provide their addresses on the Claim Form) and reporting restrictions that would prevent their identification as Claimants in the action that they intend to bring. Neither of the reasons advanced in support of the application provides a sufficient basis for the grant of this derogation from the principle of open justice. The orders sought are not necessary either properly to maintain the administration of justice or to protect the legitimate interests of the Claimants. Less intrusive methods, that can be adopted in the proceedings, will properly protect those legitimate interests. The evidence in support of the Application is generalised, weak and falls a long way short of being clear and cogent….

“51. If the pursuit of a civil claim causes distress or upset to a claimant, the law does not usually provide an additional remedy for that. An exception to that rule is claims for defamation, in which, in some circumstances, the additional upset caused by the litigation can be taken into account in the assessment of damages. A claimant in a personal injury claim is not entitled to any additional damages as a result of being caused upset and suffering as a result having to relive a possibly traumatic injury in the course of litigation or by being publicly identified in the proceedings. Some litigants may face upsetting public hostility and criticism for the claims they bring or the defences they raise. As Lord Sumption noted, this collateral impact “is part of the price to be paid for open justice and the freedom of the press to report fairly and accurately on judicial proceedings held in public“…

“52. …The civil justice system and the principles of open justice cannot be calibrated upon the risk of irrational actions of a handful of people engaging in what would be likely to amount to criminal behaviour. If it did, most litigation in this country would have to be conducted behind closed doors and under a cloak of almost total anonymity. As a democracy, we put our faith and confidence in our belief that people will abide by the law. We deal with those who do not, not by cowering in the shadows, but by taking action against them as and when required.“ ] (July 2021)

The judgment also describes various procedures that can be adopted at a civil hearing, so as to anonymise the personal financial details or private and confidential information (such as in schedules that only a judge would see), without the need to anonymise the claimants or their home addresses (see para [46] onwards for the approach that might be adopted, in relation to documentation).

The case of YSA  (Anonymity of Barristers) [2023] UKUT 00074 (IAC) usefully surveys many legal principles touching on open justice and the right of the press to report court and tribunal hearings. (In that case, the barrister applicants were refused anonymity.) It was held:

“55. The decision whether to grant anonymity is not a matter of discretion. It is a matter of weighing up and balancing the competing Convention rights: AMM v HXW [2010] EWHC 2457 (QB) at [30] – [32].

“56. There has to be a fact-sensitive approach to the competing issues, but the weight to be given to the principle of open justice is considerable. We take that from the decision of the Court of Appeal in R (Rai) v Crown Court at Winchester [2021] EWCA Civ 604 at [26], which related to reporting of a criminal case, but no authority has been cited to us suggesting that there should be a distinction in principle between the operation of the rules in different jurisdictions (although, as we have said, the procedure rules applying to Tribunals may allow a greater measure of anonymity).

(December 2022)

Case Law on Anonymity in GMC Cases

 

In GMC v X [2019] EWHC 493 (Admin) – the court granted an anonymity order for a doctor. The judge reiterated that they can only be granted in certain, narrow circumstances. the judge drew on the common law and convention on human rights.

Facts: Dr X had been identified by anti-paedophile vigilantes as having allegedly acted inappropriately in conversation with a notional child – which was an adult posing as a child. The information was passed on to the authorities and the GMC eventually prosecuted a case of misconduct. The doctor applied for judicial review of the GMC/MPT’s decision to publish the doctor’s name, on the grounds that they were feeling suicidal.

The court held that the public interest is not absolute in trumping a doctor’s personal interests in circumstances where their gender and sexuality, if published, would likely lead to the doctor committing suicide. (January 2019).

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In MXM v GMC [2022] EWHC 817 (Admin) the High Court anonymised a doctors name (in relation to High Court proceedings) on grounds that publication of the allegation (sexually motivated conduct) would be harmful to the doctor’s children if he were to be identified. It is usual practice for IOT hearings, too, be held in private, and so the order is understandable at the stage the case had reached: pre-MPT hearing stage.

QUOTE from MXM:

“B. Anonymity order

1. 1. At the outset of the hearing I granted the Applicant’s application for an anonymity order and gave reasons for that decision. In summary, the application was made on the grounds that certain matters raised in the complaints made against the Applicant regarding the nature of the sexual practices in which he and ‘ER’ engaged are liable to attract negative and potentially sensationalist publicity, which would be likely to have a detrimental impact on the mental health and welfare of his four children (of whom the younger three are between the ages of 10 and 16). The GMC took a neutral position on the anonymity application; and no member of the press or public made any representations on it.

1. 1. CPR 39.2 provides that “the general rule is that a hearing is to be in public“. CPR 39.2(4) provides:

“the court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.”

1. 1. Section 12 of the Human Rights Act 1998 applies whenever a court is considering whether to grant any relief which might affect the exercise of the right to freedom of expression. It was engaged in considering this application.

1. 1. I approached the application in accordance with the guidance given by the court of Appeal in XXX v Camden London Borough Council [2020] EWCA Civ 1468. It is necessary to balance the article 8 rights to private and family life of the Applicant and his family against the article 10 rights of the press and the public. I did so applying the well established test described by Lord Steyn in In re S (A child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593 at [17]. I determined that, in this case, the article 8 rights of the Applicant and his young children outweigh the article 10 rights of the press and the public in being able to identify him as the Applicant in these proceedings.

1. 1. In evaluating the interference with article 10 rights, I bore in mind the fundamental importance of open justice and the importance of the press interest in the names of parties as explained by Lord Rodger in Re Guardian News and Media Ltd [2010] 2 AC 697 at 723. I noted the scope of the restriction sought does not inhibit the press or public knowing any of the details of the case, other than identifying details.

1. 1. In evaluating the interference with article 8 rights, I bore in mind the ages of the children which make them particularly vulnerable to being made aware by fellow pupils of the nature of the evidence, if the Applicant were to be identified in the press. I noted the evidence of the detrimental impact on the 16 year old child of being informed of these matters by TR. I assessed that the concerns for the welfare of the children were genuine and well-founded. I also bore in mind that at this stage the matter is under investigation and it is only because the Applicant considers the IOT has erred in imposing an 18 month suspension order that he pursues this application, bringing the matter into the public arena.” per Mrs Justice Steyn (April 2022)

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Private Session at MPT Can Be Kept Private at the High Court

Williams v The General Dental Council (Rev1) [2022] EWHC 1380 (Admin) – The appeal judge held:

“Parts of the hearing below were heard in private pursuant to Rule 53 of the General Dental Council (Fitness to Practise) Rules 2006 on the basis that reference was made to the Appellant’s private life at the date of the index events. On that basis parts of the PCC’s determination are redacted and are contained in a confidential private determination. That includes parts of the determination that are subject to this appeal. The Appellant also relies upon material that was received into evidence in private session for the purposes of this appeal.

At the outset of the hearing an application was made by the Appellant, which was supported by the Respondent, for non-disclosure. The Appellant sought an order that there shall not be reported, disseminated or otherwise disclosed to the public any copy of the private determination (or transcript of the private hearing) of the Professional Conduct Committee or the contents of the expert evidence referred to exclusively therein whether or not mentioned in court or contained in a document referred to in court, without the permission of the court or the written agreement of both parties (or their solicitors). I made an order in those terms.

It follows that that the public version of this judgment has been redacted as appropriate where I refer to material that was referred to in private session below.”

(June 2022)

GMC Policy on Anonymity

The GMC/MPTS has published a policy on whether to make a public announcement (a notice) that a case has been listed. The usual position is that it will be announced on their website (and possibly circulars to the press). A notice will usually not be published if the GMC case relates solely to a doctor’s health.  Nor will it be published where there is a court injunction prohibiting same. A notice might also not be published where a decision is to be made as a preliminary step for a tribunal to determine whether the whole case should be heard in private, for which there will be public interest versus other interests criteria to consider. Further, the GMC/MPTS might elect not to publish a notice where there is a risk of significant risk to someone’s physical or mental health of someone linked to the hearing process. See the policy for more details: GMC Publication and Disclosure Policy. See also: Kayode v Information Commissioner & General Medical Council (Freedom of Information Act – application to fitness to practice determinations) [2021] UKUT 86 (AAC) in which the GMC declined to disclose a tribunal judgment after 10 years had passed, which was upheld by the upper tribunal. (March 2021)

The way the GMC approaches matters, as set out above, might not always lead to anonymisation, because they are not drawing attention to some cases at the time of their being heard. The outcome of a MPT case may well still be published on the MPT and GMC websites, so there is a lot to consider requesting when seeking anonymisation.

Other Legal Jurisdictions

In Dixon v North Bristol NHS Trust [2022] EWHC 1871 (QB) the Claimant applied for an anonymity order in civil proceedings. The application was refused. (19 July 2022)

Contact Doctors Defence Service to discuss the law on anonymity of a doctor’s name in General Medical Council (GMC) proceedings.

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