General Dental Council v Rimmer [2010] EWHC 1049 (Admin)

Case No CO/3478/2010[2010] EWHC 1049 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 15th April 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE LLOYD JONES
Between
GENERAL DENTAL COUNCILClaimantv
Between
BARRY ANTHONY RIMMERDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Ms Eleanor Grey (instructed by Messrs Mills & Reeve) appeared for ClaimantMs Clodagh Bradley (instructed by Messrs Eastwoods) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE LLOYD JONES: This is an application by the General Dental Council for a declaration authorising the granting of access to and the inspection and copying of the defendant's computerised records by the claimant, its forensic computer experts and the defendant's forensic computer experts. The application is made under Part 8 of the CPR.[2]The background to the matter is that the defendant, Mr Rimmer, is a general dental practitioner and he is currently subject to a fitness to practise investigation by the General Dental Council. That hearing is due to take place over a period of some nine days, starting on 9th July of this year. That hearing concerns 16 child patients of Mr Rimmer, who received dental treatment under sedation. The allegation is made by Ashton, Leigh and Wigan Primary Care Trust before the General Dental Council that Mr Rimmer has retrospectively amended some or all of the computer records of the 16 patients, an allegation which is denied by Mr Rimmer.[3]In order to investigate the allegation, the claimant seeks, through forensic computer examiners instructed on its behalf, to copy the entirety of the computer hard drives at the defendant's premises and to interrogate the information held on the hard drives to determine whether any of the computer records of the 16 patients have been amended. I should explain that an earlier inspection of the records in the case of those 16 patients was carried out by representatives of the claimant but that no copies were made at that stage, so it is necessary to examine the computer records in order to see whether they have been altered and if so at what date.[4]The defendant's hard drives contain the up-to-date patient records of his two practices at Wigan Road and Tram Lane. They also include the up-to-date patient records of the practice sold by him to his associate, Mr Patel, and possibly further records in relation to a practice in Lowton which Mr Rimmer sold some seven years ago. They include other information not relating to patients but which is likely to be confidential, such as employment records. They include material which attracts legal professional privilege, including communications between the defendant and his solicitors relating to the investigations carried out by the General Dental Council.[5]The position which has been arrived at -- and there is no dispute as to this between the parties -- is that, in order to examine these records, the entirety of the defendant's hard drives has to be accessed. It is not possible to isolate and copy only the 16 sets of records which are in issue. In relation to those 16 patients, some nine patients or their parents or guardians have consented for their records to be used for the purposes of the disciplinary proceedings. One has expressly refused permission and six have not replied to attempts to contact them to ascertain their position.[6]The remaining patients whose personal information is contained on the hard discs have not been contacted in respect of the application, quite correctly. There are in fact 30,000 sets of patient records held on disc and I have already referred to the fact that the hard discs also contain other information apart from patient records.[7]What is proposed, if the court permits it, is that the claimant and the defendant will commission forensic computer experts to copy the practices' hard drives and to extract and examine the relevant data concerning the 16 sets of records which are in issue. This will enable reports to be provided addressing the specific issue as to whether any amendments have been made to these records.[8]In principle, the defendant is willing to permit the claimant's forensic computer examiners to take the proposed copies of the hard drives subject to the following matters. First, the court has to be satisfied that the public interest favours the disclosure of the records rather than the maintenance of their confidentiality. Secondly, the defendant requires that there should be in place adequate protection to prevent the passage of other confidential information or privileged information from the claimant's forensic computer examiners to the claimant or other third parties. This is the purpose of an agreement for disclosure of confidential information which has now been signed and to which I shall return. Thirdly, the defendant requires that interrogation should be for the limited purpose of ascertaining whether the records in relation to these 16 child patients have been retrospectively altered as opposed to some general fishing expedition.[9]The first question which arises is one of the jurisdiction of this court to hear an application under Part 8. I am entirely satisfied that Part 8 is the appropriate means by which to bring this application before the court. It is expressly designed for proceedings such as the present where there are no substantial factual disputes between the parties. The question has been raised by Deputy Master Knapman as to whether it is appropriate for a Part 8 application to be made in the Administrative Court. It clearly is appropriate in the circumstances of this case. This case raises issues of the balancing of competing public interests and the application of Article 8 of the European Convention on Human Rights, matters which are within the province of this court. So I am satisfied that the application is properly made to this court and that this court has jurisdiction.[10]I turn to the substance of the application. There is no real disagreement between the parties as to the applicable legal principles. We are concerned essentially with questions of confidentiality at common law and with rights arising as a result of the implementation of Article 8 of the European Convention on Human Rights into domestic law by the Human Rights Act 1998. A patient's dental or clinical records are protected by obligations of confidentiality. That confidentiality does not apply to anonymised records provided that those records can no longer be used to identify individual patients. However, that does not assist in the present case because the hard drives in question cannot be accessed without identifying the individual patients. The court may properly be asked to sanction the disclosure of material which is confidential if sufficient justification exists. On such an application, it is for the court to assess the competing public interests involved in such an application: the interests of the individual patients and the public at large in the confidentiality of such records and on the other hand the public interest in the proper and effective pursuit of professional disciplinary proceedings and, as in this case, proceedings as to the fitness of professional men to practise. It is for this court to satisfy itself, on the balance of these considerations, that the disclosure is appropriate.[11]I have been referred in this regard to A Health Authority v X and others [2010] EWCA Civ 2014. That case was concerned with disclosure of medical records in connection with proceedings under the Children Act 1989. I note that Thorpe LJ at paragraph 24 of his judgment was careful to state that he did not want the judgment to be construed or used as laying down any general propositions beyond the context of Children Act proceedings. Nevertheless, it does seem to me that the approach adopted by the court in that case, and the particular observations to which I shall refer in a moment, are apposite to the situation before this court today.[12]The court, in assessing the need for disclosure, will look to see if there is a compelling public interest in the disclosure which justifies what would otherwise be a breach of confidentiality and which satisfies the ECHR criteria of necessity and proportionality. It will also want to see that there are effective and adequate safeguards against abuse, in particular for the patient's confidentiality and anonymity. At paragraph 19 of his judgment in A Health Authority, Thorpe LJ said:
"There is obviously a high public interest, analogous to the public interest in the due administration of criminal justice, in the proper administration of professional disciplinary hearings, particularly in the field of medicine."
I also note that in paragraph 20 of his judgment, Thorpe LJ observed:
"A balance still had to be struck between competing interests. The balance came down in favour of production as it invariably does, save in exceptional circumstances."
[13]In this case, the general public interest in enabling effective disciplinary proceedings to be considered and conducted by a regulator against a registered dental practitioner is relied upon. Addressing the matter in terms of Article 8, disclosure must be justified by reference to Article 8(2). Disclosure must be in accordance within the law, it must be necessary in a democratic society and proportionate and it must be for a stated and legitimate purpose.[14]I am satisfied, first, that, as a result of the declarations which I propose to grant, the disclosure will be in accordance with the law. Secondly, I am satisfied that in this case the public interest in enabling effective disciplinary proceedings to be considered and conducted by a regulator against a dental practitioner is a proper and lawful purpose and within the meaning of Article 8. The objective falls within Article 8(2), both for the reason that it is for the protection of health and more generally because it is for the protection of the rights and freedoms of others. I accept the submission of Ms Grey on behalf of the General Medical Council that the public interest is fostered by the proper administration of such disciplinary proceedings.[15]Next, I am satisfied that the order sought is necessary to enable the investigation to be carried out. The parties have very responsibly carried out careful enquiries in order to ascertain how a forensic examination could be conducted and both have concluded that it is necessary for all of the hard discs to be copied in their entirety for the reports to be written. They submit, and I accept, that there are no less intrusive means of securing the desired result. The order sought is therefore, in my judgement, a proportionate response to the needs of the situation.[16]In coming to my conclusion, I am also influenced by the fact that the inroads into patient confidentiality will be minimised by further measures to be taken. The use to be made of the data will be limited to the investigation of the 16 sets of records in issue. Steps will be taken to anonymise the details of the patients concerned at the stage of any subsequent hearing so that, in practice, there should be no adverse effect on any of the individuals concerned. In addition, a tripartite agreement has been concluded to which the parties are Mr Rimmer, as the disclosing party, Forensic Footprints Limited, the computer experts instructed on behalf of the claimant, and the General Dental Council itself. The agreement contains further safeguards against abuse. It is contemplated, and indeed Ms Bradley, who appears on behalf of Mr Rimmer, assures me, that a similar agreement will be concluded between Mr Rimmer and the computer experts whom he proposes to instruct in connection with this matter. I do not propose to set out the terms of the agreements but I am satisfied that they contain appropriate safeguards to maintain the confidentiality of this material, so far as that is possible.[17]I should refer to the fact that, although all of the 16 child patients were treated by Mr Rimmer personally, it appears that some were patients of other practices with which Mr Rimmer was involved who were referred to Mr Rimmer. There are, on the hard drives maintained by Mr Rimmer, documents relating to four patient databases. Two relate to his current two practices and the third belongs to a practice in Welling which Mr Rimmer owned previously before selling it to his colleague Mr Patel. These three databases contain up-to-date patient information because the Welling practice backs up to Mr Rimmer's hard drives, as do his databases from his two practices. The fourth patient database belonged to a practice in Lowton which Mr Rimmer sold approximately seven years ago and the records on it are therefore at least approximately seven years old. The Lowton database has now been deleted from the hard drives. However, Mr Rimmer expects that a computer expert would be able to recover and view the information, notwithstanding its deletion.[18]In these circumstances, an approach has been made to the persons now running these two practices in order to obtain their views as to the proposed disclosure of the information and the breach of confidentiality which may thereby be involved. They have also been approached in relation to the application made to this court. Those approaches were made by letters dated 1st April 2010. I am told that as yet no response has been received. I am satisfied that the same considerations apply in relation to the disclosure of the information in relation to those two practices as apply in relation to the disclosure of the information maintained by Mr Rimmer concerning his two current practices. For the same reasons, it is necessary that this information be disclosed to the limited extent proposed in the public interest.[19]Accordingly, for all of these reasons, I consider that the public interest in the proper pursuit of these proceedings does justify and require the disclosure of the information to the extent proposed.[20]I would like to add that this issue has been approached with great responsibility by both parties and I am very grateful for the assistance which both sides have provided to the court.[21]MS GREY: My Lord, I am grateful. Perhaps we would email to your clerk a slightly amended version of the draft order for your signature, comprising those few changes discussed, and also, if your Lordship and my learned friend think it appropriate, referring to the undertaking offered by her in relation to a confidentiality agreement with her own expert. I am in your Lordship's hands on that matter.

MR JUSTICE LLOYD JONES: Are you content with an undertaking?

[23]MS BRADLEY: My Lord, I have no objection to that. I just need to look at the terms of the order. As currently drafted, it does refer to the tripartite agreement, from recollection.[24]MR JUSTICE LLOYD JONES: I think you could add an undertaking on behalf of the Mr Rimmer to enter into an agreement on similar terms with his expert.[25]MS GREY: My Lord, the agreement provides for no order as to costs, so I do not think there is any further matter that I need to trouble you with.[26]MR JUSTICE LLOYD JONES: Thank you very much. Anything further, Ms Bradley?[27]MS BRADLEY: No, my Lord.

MR JUSTICE LLOYD JONES: Thank you very much.

Cited in 1 later judgment