In the case I am writing about here, the court has refused permission to a psychiatrist to disclose documents from care proceedings, and other documents held by the General Medical Council (GMC), into the public domain.
I am going to use the word ‘irony’ a lot.
I have just finished writing a talk for local authority lawyers about a recent run of cases in which local authority practices are criticised, most often by the President of the Family Division, and most often for causing delay. The first irony here is that this judgment has only just been published some 10-11 months after the hearing. The second is that the President effectively cites pressure of work (something which is never allowed to get local authorities off the hook) as the reason for the delay.
Re C (A Child)  EWFC 79 was heard in November 2014 and published on Bailii on 29th September 2015. It concerns an application by Dr X and and his colleague Y for permission to disclose documents from care proceedings. Despite the attempt at anonymising their identity, it is hardly difficult to work out who they are, given previous press coverage, but I am afraid you will have to work it out for yourselves, lest I commit contempt of court myself (third irony).
The application came about after Dr X assessed C’s mother at his clinic in 2007. She was very critical of the care she had received from Dr X and reported him to the GMC. In due course, apparently more than five years later (against which the President’s delay pales into insignificance) the case was heard by a Fitness to Practise Panel of the Medical Practitioners Tribunal Service. Dr X faced seven allegations. Two were withdrawn by the GMC; each of the other five was found not proved. He asked the court for permission to disclose some of the documents from the case.
The doctor’s argument ran as follows:
“Dr X referred to what he called “a need for transparency for experts in the Family Court.” He said that “reputable journalists”, whom he identified, wished to “have access to the documents in order to write articles on the role of the expert in the Family Court and the functioning of the General Medical Council when regulating doctors acting as experts.” He said that “misinformed press reporting has severely damaged my reputation and my ability to work in child protection or within the court arena” and that he been “unable to respond due to the confidentiality of the family court.” The mother, in contrast, he said, had not merely spoken to the media, making what he said were “false allegations” about him, but had also made documents available on the internet, notwithstanding an injunction prohibiting her from doing so. He said that he had received a number of invitations to speak at professional conferences “but cannot make these presentations without disclosure being allowed.” In Miss Wills-Goldingham’s skeleton arguments it is said that Dr X’s “otherwise unblemished reputation … has been cataclysmically damaged … through inaccurate reporting and internet postings” and that he has been “unfairly and unjustly pilloried by the mother and, through her, by the press.”
Some documents had been allowed to be disclosed to the GMC so that Dr X could deal with the complaints against him.
In fairness to the President, there was a lot of law to consider and he sets it all out comprehensively. Disclosure has been allowed in previous cases but he concluded that they were distinguishable (for example, that the disclosure was sought by the parents; that only limited disclosure was sought). In this case, Dr X sought disclosure of a raft of documents into the public domain, both from the care proceedings and from the GMC.
The President concluded that:
“Accepting, as I am prepared to for the purposes of argument, that Dr X has been traduced and defamed by the mother, his former patient, that does not, of itself, as I have explained, liberate him from his continuing duties of confidentiality nor, of itself, justify removing the limitations on the use of the family court documents arising under section 12 of the 1960 Act. There has to be a proper balance between the competing claims of the patient and doctor. The invasion of the patient’s confidentiality must, as in the case of an invasion of the confidentiality which attaches to the family court documents, be proportionate to the legitimate demands of the doctor. Here the remedy being sought by Dr X – permission to put the mother’s medical records and related documents into the public domain, at a time and in circumstances of his own choosing and without any of the safeguards usually imposed – is wholly disproportionate to anything which he can legitimately or reasonably demand. It goes far beyond what the law permits. Indeed, it conflicts with what the GMC’s guidance requires of Dr X.
I add, lest it be thought I have overlooked the point, that I am wholly un-persuaded that either anonymisation, whose effectiveness in the particular circumstances of this case I seriously doubt, or any degree of redaction compatible with Dr X’s objectives, is capable of overcoming what, in my judgment, are the insuperable obstacles in Dr X’s and Y’s way.”
He also said that the Family Court had no jurisdiction to deal with disclosure of the GMC documents which were not part of the care proceedings.
The mother in the case argued vigorously against disclosure, despite the fact that she had herself spoken extensively to the press about the case, quoting from confidential reports filed in care proceedings (fourth irony). She was not the only person to make complaints about him but none of them were upheld. The allegations were of the most serious nature and caused untold damage to the doctor’s reputation and ability to earn a living. The press did not give the same publicity to the GMC findings as they did to the original allegations (fifth irony), in the reporting of which they made frequent reference to the ‘secret family courts’ and the need for openness (sixth irony).
Irony aside, the case raises a number of knotty transparency points:
Should professionals & experts who are damaged by naming and shaming (whether by the courts or the press) be allowed to defend themselves with reference to documents from care cases?
Should medical records continue to be subject to doctor-patient confidentiality once they are used in care proceedings?
Is the oversight by the expert’s disciplinary tribunal sufficient to inform the users of the family justice system as to whether an expert is good enough as an expert for their opinion to be relied on by the court?
Should the press be required to follow up their smear stories with accurate reporting of any disciplinary proceedings or relevant court decisions?
These are big topics and good examples of the delicate balancing act between achieving scrutiny of the system and maintaining confidentiality of those proceedings, doctor-patient confidentiality / confidentiality / privacy for the patient and anonymity for the child.
I am aware that medical tribunals go to great lengths to ensure that patient records are anonymised before they are looked at by those involved in investigation and appraisal. It does not seem to me to be impossible to achieve the same protection for court documents but I do know that it can take many months and a great deal of care by those handling the documents to make sure that nothing untoward is revealed. To give one example, I recently had to redact some patient records to be used in the family court when it was necessary to ensure that an allegedly violent man did not find out where the mother or children were living – it took something like three hours to deal with 150 pages. A huge amount of resources – and it is difficult to see who might be responsible for that in all cases that should be published under the President’s guidance. Local authority lawyers will not have time, as their workloads currently stand, and it would not be covered by legal aid on behalf of parents.
The general concern about the oversight of experts is a real problem for practitioners and families. We can check whether someone has the basic qualifications they claim – if they are registered with bodies like the Law Society as expert witnesses. We cannot, however, learn anything about the expert’s real skills other than by word of mouth or when there is specific comment made by a court – usually criticism and not necessarily a fair summary of the totality of that person’s work. A small step to help with this might be if the judgments which are published specified when an expert had done good work which the court found of assistance and named them. Which leads into a further wider debate about the number of judgments which are being published (tip of the iceberg) ….