Aaalamani, R (on the application of) v General Medical Council [2003] EWHC 347 (Admin)

Case No CO/4600/2002[2003] EWHC 347 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 14 January 2003
Strand
London WC2
B E F O R E:
MR JUSTICE ELIAS
THE QUEEN ON THE APPLICATION OF PROFESSOR HOSSAIN AAALAMANI
(CLAIMANT)
-v-
GENERAL MEDICAL COUNCIL
(DEFENDANT)
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LITIGATION FRIEND APPEARED FOR THE CLAIMANT
MR R ENGLEHART QC (instructed by Field Fisher Waterhouse, London EC3 N2AA) appeared on behalf of the DEFENDANT
J U D G M E N T
Between
Aaalamani, R (on the application of)ClaimantGeneral Medical CouncilDefendant
[1]MR JUSTICE ELIAS: I have before me an application made under the Data Protection Act. The application is brought by Professor Hossain Aaalamani against the General Medical Council. There is a background to this application which I need not address in any detail at all. Professor Aaalamani has been subject to certain proceedings before the General Medical Council and certain rulings have been made in respect of his professional competence. He has initiated various legal proceedings in relation to those matters. It is in the course of those proceedings, one of which involves an application for judicial review which has been refused on papers and has not yet been heard orally, that this application for disclosure under the European directive on the processing of personal data has been made. Professor Aaalamani has had a friend acting for him before me, Dr Hassib, and I am grateful to him for his observations. He puts his case very simply. He says that the GMC have a mass of documentation relating to Professor Aaalamani which they have failed to disclose to him. He submits that Professor Aaalamani is entitled to this documentation by virtue of the directive to which I have made reference. In particular, he submits that the only grounds on which data can be withheld under the directive is under Article 13, and that certain material with which he ought to be provided has not been provided and does not fall within the terms of those exemptions and restrictions. I should, perhaps, mention two specific exemptions and restrictions in the terms of that Article. Under Article 13(1), it is provided that: "Member states may adopt legislative measures to restrict the scope of the obligations and rights provided for . . . when such a restriction constitutes a necessary measure to safeguard . . . "(d) The prevention, investigation, detection and prosecution of criminal offences, or of breaches of ethics for regulated professions.[2]Paragraph (f) applies restrictions to:
"A monitoring, inspection or regulatory function connected, even occasionally, with the exercise of official authority . . . "(g) The protection of the data subject or of the rights and freedoms of others . . . "
[3]Mr Englehart QC, for the GMC, submits that the GMC either has, or will very shortly, be providing all the relevant material to which the professor is entitled. I have been referred to a witness statement of Jaqueline Smith who is head of the performance and health section of the Fitness to Practice Directorate of the General Medical Council. She has set out in this witness statement the documentation which has been provided to Professor Aaalamani. It is plain that very extensive material has been provided, and it is accepted by Ms Smith that there has recently been found further documentation concerning matters which apparently occurred some time ago which, it is accepted, the professor is entitled to receive, and which he will be provided with, by the end of this week. The GMC submits, however, that there are certain documents which it is not willing to disclose and which it can justifiably withhold under the terms of the directive. In making that submission, Mr Englehart relied not only on the terms of the directive but on the Data Protection Act which was the implementation in domestic law of the terms of the directive.[4]There are certain categories of information which do not have to be provided even though they would otherwise constitute personal data. Mr Hassib, for the professor, submitted that some of these exemptions provided in the domestic legislation, the Data Protection Act 1998, are not reflected in the terms of Article 13. Accordingly, he submitted that the Data Protection Act had absolutely no relevance to this case and that I should determine it solely on the basis of Article 13. I do not accept that. Article 13 lays down, as I have indicated, various categories of case where a member state may legitimately adopt measures to restrict the scope of the obligations which would otherwise exist. Those exemptions and restrictions are cast in general terms and the domestic legislation gives flesh to those bare bones. I do not accept that the exemptions, at least that I have seen in the Data Protection Act itself, are incompatible with the provisions in Article 13. If they were then that may raise a question as to the direct effect of the provisions of the directive.[5]Let me turn to the material which the GMC contends it can withhold: firstly, documents covered by legal professional privilege. Plainly those would be documents which would not have to be disclosed and they are exempt from disclosure in the 1998 Act under Schedule 7, paragraph 10. Then there are certain restrictions in relation to documents containing third party information. Section 7(4) of the Act provides as follows:
"Where a data controller can not comply with a request without disclosing information relating to another individual who can be identified from that information, he is not obliged to comply with the request unless (a) the other individual has consented to the disclosure of the information to the person making the request, or (b) it is reasonable in all circumstances to comply with the request without the consent of the other individuals."
[6]Provision is then made for the possibility of information being provided in such a way as to conceal the identity of those who have provided the information. The GMC submits that it has complied with those particular provisions. It has, I am told, provided certain information which has concealed the identity of individuals, but has sought to limit the exclusion only so as to protect the identity of such persons. Then certain information has been withheld which relates to questions used in the tests of performance. The relevance of those in this case is, as I have indicated in very general terms, the professor is concerned about certain decisions which have been taken by the GMC which adversely reflect upon his professional competence and abilities. The GMC have indicated in the witness statement of Ms Smith that they would take very seriously any requirement that the questions ought to be disclosed under the Data Protection Act itself. Apparently they have a finite bank of questions which are used to test practitioners. These questions have been carefully selected, they have model answers and, it is submitted, it would damage the effective control and regulation of the profession for these questions to be disclosed. It seems to me that as far as the general bank of questions is concerned, it must be right that they are not in any event personal data within the meaning of the legislation. They are not data which relate to the professor himself. It is also distinctly arguable that they do not have to be disclosed in any event under the terms of section 31(1) of the Act.[7]Finally, there is the question of the answers that the professor has given in certain tests which he has been required to undertake. On the face of it these clearly are personal data and, in my view, they will be so notwithstanding that they might identify through the answers particular questions. However, as Mr Englehart points out, there is a very specific exemption in relation to this category provided by paragraph 9 of schedule 7 to the 1998 Act which is as follows:
"Personal data consisting of information recorded by candidates during an academic, professional, or other examination are exempt from section 7."
The definition of "examination" is then set out in paragraph 8.[8]Those then are the grounds on which the GMC has claimed to withhold certain documentation. Mr Hassib, for the professor, indicated that the principal areas with which he was concerned was the video taping of the examination and the answers to the questions. For the reasons I have given, the answers to the questions seem to me to be not material which has to be provided under the Data Protection Act or, because I believe that to be consistent with the directive, under the terms of the directive itself. As to the videotaping of the oral examination, Mr Englehart says that there is no videotape; apparently there was a video conference in relation to that matter and that of course is a different thing. It would be quite wrong for me to question the good faith of the GMC on that. I understand the professor may be dubious as to whether that is a correct answer, but that is the answer given on instructions and I have no doubt that it would be a truthful answer. In any event, I would have thought that the question of a videotape would fall into the same category as the examination answers and paragraph 9 of the schedule to which I made reference, but I have heard no specific argument in relation to that. It follows that those particular applications fail. I should, however, in fairness to the professor and the submissions of Mr Hassib, add this. One of the bases, indeed perhaps the most important reason why this application has been made by the professor, is that he submits that he is not able properly to defend himself in the proceedings, the litigation which is to come before the court. Nothing I have said in this judgment touches on the question of what documentation may or may not properly be discloseable in the course of any proceedings which might arise in court as a consequence of the actions that have been taken by the GMC against the professor. That raises quite separate issues. I am simply not in a position to know whether any of the questions and answers may or may not be relevant in the context of the litigation currently in place. Plainly considerations of Article 6 of the European Convention on Human Rights raise separate issues to those which arise under the Data Protection Act. What I am ruling on is that it seems to me that in the light of the information now provided by the GMC, that I am satisfied that they are providing the material which they are required to provide under the Data Protection Act which, as I have indicated, seems to me to be consistent in this regard with the directive. Accordingly, the specific applications here fail. Mr Hassib, I also think at some point -- I could do it now if you want me to do it now, but you may not -- if you are going to pursue the judicial review applications then you may want to determine whether or not you get permission for those. You have been refused permission in relation to the one in March -- sorry the other is not judicial review it is under section 41(10). It is entirely a matter for you. It is not for me to tell you what do to, but you may think it appropriate in the circumstances, it may not be acceptable to the GMC, I do not know, to indicate that you are not concerned to pursue those matters any further and you may wish to leave them on the file or to adjourn them all pending the outcome of the appeal to the Privy Council which appears to me to be the important matter.[9]LITIGATION FRIEND: Just as regard to the Administrative Court, because he has an unfettered right to appeal to the Supreme Court, there is no reason that he should be excluded from the Administrative Court. There are precedents in the Administrative Court. Lightman J presided over one of those in the Administrative Court so there is a precedent.

MR JUSTICE ELIAS: I am not sure I understand the point you are making.

[11]LITIGATION FRIEND: The point is: similar applications have been made by Professor Aaalamani -- already been made in the Administrative Court and judgment given.[12]MR JUSTICE ELIAS: I am sorry, I am not suggesting that you may not be entitled to pursue your matter under section 41. I do not think, as I understand it -- Mr Englehart has accepted that you have a right to go under section 41 and that is the end of the matter. I am simply considering the matter from the person's own longer term interest and the sensible dealing of this particular litigation. You may think the real question here is whether the appeal to the Privy Council on the substantive decision is really what counts, and without prejudice to the other matters, you might agree that they can be held in abeyance pending that outcome.[13]LITIGATION FRIEND: We have plenty of time until the hearing of the Privy Council. My Lord, just one final point, Professor Aaalamani is on income support at the moment and I think that is relevant to the question of costs. He is on full income support. Thank you very much.[14]MR ENGLEHART: My Lord, as far as costs are concerned, I hear what is said, I am instructed to say that we would be content if you Lordship makes it costs in the application.[15]MR JUSTICE ELIAS: Actually, I am inclined to say no order as to costs. It is right to say, but I understand that the GMC did not fully understand what was being asked of them. They have now provided information which they might have provided earlier. I will simply make no order as to cost.[16]LITIGATION FRIEND: I am much obliged, my Lord.[17]MR ENGLEHART: Can I just mention one matter? Your Lordship mentioned about a consent -- Professor Aaalamani consenting. The case has now been before your Lordship, in terms of case management, I would invite your Lordship to say that that is a proper direction to make that there should be a stay of these multifarious Administrative Court proceedings until determination of the appeal to the Privy Council, for the reasons that I have explained to your Lordship, and if your Lordship felt that was the appropriate course to take I would urge your Lordship to do it in terms of case management powers, otherwise we are going to have a multitude of applications which may raise rather difficult hypothetical questions that different courts are going to be looking at at the same time.

MR JUSTICE ELIAS: When is the Privy Council?

[19]MR ENGLEHART: There is a Privy Council hearing on, I understand, January 22, but that is only an interlocutory application to strike out the appeal because a case has not been lodged. Now if that succeeds, then that is the end of the matter and I dare say these Administrative Court cases are not going to come on before January 23, but it may be that Professor Aaalamani is given more time, I do not know. I am told, when I saw the GMC last week, how long it would take for the substantive hearing for the Privy Council and was told they would hope to have it by about June. It is in that order of magnitude, but I would invite your Lordship to make that order now the case is on before the court because it does seem to us that the Administrative Court is going to be in some difficulty in determining, as it were, the interlocutory relief when one does not know what view the Privy Council will take on appeal.[20]LITIGATION FRIEND: My Lord, in that particular case, the right of Professor Aaalamani will be severely curtailed. The Medical Act said every three months he should be cited before the General Medical Council's competent body, and then he has a right of appeal, and Mr Englehart says: oh no, he does not have a right of appeal.[21]MR JUSTICE ELIAS: No, it is not suggested that he will not be able to make representations at the three-monthly renewal, and plainly if there was something to arise out of the three-monthly renewal, if they were not to give you a chance to make representations or something of that kind, then I clearly could not and would not seek to stop you making any applications in relation to that. What is said at the moment, and there is a lot of good sense in it, is that it is just going to be wasting the time of the courts to go into some of the other matters at this stage with the Privy Council. The real issue at the end of the day is not on the interim orders, it is actually whether this decision taken by the Profession Performance Committee, whatever they call it, was properly taken and lawfully taken in accordance with the rules, and that is a matter for the Privy Council. What I am minded to do is to stay the other actions, the other three proceedings at the moment, pending the outcome of that hearing. Now what I am prepared to do is to say that I give you liberty to apply; that means that the professor can come back on giving 14 days' notice to the GMC. If there is any particular reason why you feel that that really prejudices you unjustly you can come back to court and try and get that stay lifted. Do understand?[22]LITIGATION FRIEND: Thank you very much.[23]MR JUSTICE ELIAS: I will say I will stay all the other three actions. Can you draft something?[24]MR ENGLEHART: Yes, my Lord.[25]MR JUSTICE ELIAS: So those other actions are stayed. That does not mean that you have lost the right to pursue -- at the moment you do not have a right to pursue the judicial review you understand that, you have not been given permission. That will be stayed, you will have 14 days. If you wish to seek to reopen any of them you can come back to court and you can try and persuade a judge that it would be sensible to do that. For the moment it seems that is a sensible order given that the Privy Council is really where everybody should be focusing their fire. Thank you both.