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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Johnson v The Medical Defence Union Ltd (2)  EWHC 321 (Ch) (03 March 2006)
Cite as:  EWHC 321 (Ch)
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Strand, London, WC2A 2LL
B e f o r e :
| DAVID PAUL JOHNSON
|- and -
|THE MEDICAL DEFENCE UNION LIMITED
Mr Richard Spearman QC and Miss Jacqueline Reid (instructed by Fladgate Fielder) for the Defendant
Hearing dates: 19, 20, 21, 24, 25, 26, 28, 31 October, 2 and 3 November 2005
Crown Copyright ©
MR JUSTICE RIMER :
Mr Johnson background
The MDU background
"11. The Board of Management shall be entitled in its absolute discretion
(a) and subject only to giving 42 days' prior notice to the member of its intention to do so to refuse to renew the membership of any member with effect from the date on which that member's current subscription expires ('the expiry date') and in such event at the end of the expiry date such member shall cease to be a member of the MDU
(b) to terminate the membership of any member by not less than 14 days' notice given at any time and, in such circumstances, a due proportion of that member's subscription (if any), reflecting the period from the date of such termination until the expiry date, shall forthwith be refunded to that member by the MDU."
Mr Johnson's membership of the MDU was terminated under article 11(a).
"14. If any member or applicant for election to membership or any group to which the member belongs makes default in any payment of whatsoever nature due to the MDU then if such default shall continue for 30 days after such payment shall become due the member shall, unless the Board of Management at any time otherwise determines, cease to be a member."
It was under that provision that Mr Johnson's membership of the MDU lapsed in 1985, although it was renewed in 1986.
"46. The Board of Management may delegate any of its powers to any committee or sub-committee. It may also delegate to any member of the Board of Management or employee or agent such of its powers as it considers desirable to be exercised by such person. Any such delegation may be made subject to any conditions the Board of Management may impose and either collaterally with or to the exclusion of its own powers and may be revoked or altered."
Benefits of MDU membership
"Today, more than ever, you need MDU membership
Today's doctor works in a litigious and increasingly regulated environment. In the last 10 years the number of complaints to the [GMC] has risen significantly, as have performance reviews by hospital trusts. While many doctors, particularly at the beginning of their career, do not believe they will ever face these threats, statistics show that every doctor is likely to have at least one claim or complaint made against them during their career.
By joining the MDU, the world's first and longest standing medical defence organisation, you can gain access to the finest personal support available to defend you when need it most.
You can rest assured that should you receive a complaint or are subject to a disciplinary investigation, you can ask for the assistance of fellow doctors. We are just a telephone call away.
Furthermore if that complaint turns into a criminal negligence claim [sic: there is no mention of a civil negligence claim, which is presumably to what the material is really referring] that is not covered by NHS indemnity, you have the peace of mind of knowing that you have, as an integral part of MDU membership, a policy of insurance, underwritten by Converium Insurance (UK) Ltd, which can indemnify you up to £10 million subject to the terms and conditions of the policy.
MDU membership is not only for when times are difficult. To help you understand the law and your ethical requirements, you can access the MDU's range of risk management tools and advisory publications, while to assist with your professional development you can make use of our helpful educational support programme, and our extensive website of articles and case histories.
More UK doctors are members of the MDU than any other medical defence organisation. We look forward to welcoming you into membership soon."
"24-Hour telephone advice on the ethical and legal aspects of clinical practice provided by specially trained doctors, dentists, nurses and lawyers
Support with [National Clinical Assessment Authority] investigations
Support in preparing a case and representation at [Primary Care Trust], NHS trust and disciplinary hearings
Support in responding to a complaint and representation at GMC hearings
Support with CHRE referrals to the High Court as a result of a GMC decision
Support in preparing responses to patients' complaints
Support with criminal investigations and proceedings arising from clinical practice
Support in preparing a case and representation in a Coroner's Court
Advice and representation in dealing with the press or media enquiries
Insurance cover for Good Samaritan acts worldwide
Indemnity for claims arising out of fee paying services (Category 2 work) such as preparing insurance reports
Insurance cover for claims arising from private work (at no extra charge, up to £7,000 income per annum, subject to type of work)
Should your private income exceed £7,000, you can request for your cover to be extended
In addition, MDU membership can provide you with:
Advice to help you avoid common pitfalls of practice and to keep you up-to-date on medico-legal issues, including:
- MDU medico-legal advice booklets covering areas such as consent, confidentiality, record keeping and many others
- Online risk management modules to help you identify and reduce risk
- The popular and informative MDU Journal
- Regular emails on medico-legal 'hot topics'"
Mr Johnson's membership of the MDU
"I agree that by renewing my membership I consent to [MDUSL], the MDU and the Zurich Insurance Company processing information about me, including sensitive personal data, (Personal Data) for administration of my membership, the insurance policy and indemnity claims, risk management, marketing and advisory purposes. I consent to [MDUSL], the MDU and the Zurich Insurance Company disclosing my Personal Data to legal advisors, regulatory bodies, the Compensation Recovery Unit and to other medical defence organisations as part of their advisory and claims handling process as well as to third parties.
I consent to the transmission of my Personal Data overseas.
I acknowledge that I have the right to apply for a copy of my personal data (for which [MDUSL] may make a small charge) and to have any inaccuracies corrected." (My emphases in both places: these words are relevant to the later discussion)
The MDU's risk assessment practice and policy
The RAR form
The score sheet
The RAG sheet
The RAG meeting
The decision of the MDU Board
The Risk Assessment Review in relation to Mr Johnson
The 17 files summarised in the RAR form
GMC complaint re fee for private treatment and dissatisfaction with result of arthroscopy left knee
Complaint to GMC that DPJ did not complete operation that he contracted to do (also disputed fees).
Operation record of 29.01.98:
- resection flap tear posterior horn medial meniscus
- partial resection horizontal cleavage tear lat meniscus
- complete resection inf leaf
- debridement lat fem condyle + superficial chondroplasty
Noted good recovery at 2/52 review.
Patient requested further appointment 10/12 later letter 11.11.98, pain and swelling related to squash, offered further arthroscopy but declined.
NHS appointment (with a colleague) 16/12 later letter 15.03.00 indicates degeneration lat meniscus, post horn tear, residual tear med meniscus, free flap, early degeneration.
Letter from patient to DPJ 10/00 expressed dissatisfaction, further appointment offered, patient then sent complaint to GMC. Response to GMC by DPJ.
GMC indicated 2.4.01 that taking no further action.
GMC did criticise communication with patient.
GMC complaint re inaccurate and incomplete medico-legal report: failure to examine; failure to consider previous expert report; failure to consider history.
DPJ asked to provide a second expert report on condition and prognosis relating to injuries sustained by the patient following an RTA. DPJ provided a report which indicated that following the attempted history he declined to continue with the report when the patient became aggressive and because of concern re the validity of the answers he received.
Patient complained to GMC. Complaint at stage of preliminary screening. DPJ provided comments. Outcome awaited.
Concern re ownership of MDU assets following proposed changes with Zurich Insurance
Advice re breakdown of dr/patient relationship/defamation re alleged erroneous prognosis; disappointment with treatment outcome
Verbal complaint by husband during consultation with patient and husband. Unhappy with result/recovery following knee surgery. DPJ offered explanation during consultation and indicated that as dr/pt relationship broken down they should return to GP to seek alternative treatment. Also indicated if patient wanted to continue to see him could do so if they were happy to continue taking his advice.
Also wrote to explain to GP.
Informed MDU of situation and nothing further heard.
0001331 [misrecorded by Dr Roberts as 0001311]
Suspension of inpatient and outpatient admitting rights pending investigation into alleged breach of regulations; member asked other member of staff to log into computer data, to which he had no access.
Member notified MDU of incident 2/00. The hospital manager had been approached by two separate junior members of administrative staff who reported that mbr had asked them to log onto system to which he had no access. Hospital manager indicated that similar problem had occurred in 1999, following which member assured management that he recognised error and would not repeat.
Suspended following final occurrence.
Member advised that this is a BMA issue, or that private legal proceedings an option. Board of Management decision that member be not assisted in this case and that member be referred to RA Group.
Witness statement for high court hearing re claim against BUPA for non-payment of fees following orthopaedic surgery at clinic which is unrecognised by BUPA and defamation of character
Non-lead another member was asked to provide a witness statement by DPJ in claim brought by him [DPJ] against BUPA re alleged non payment of fees and alleged defamation. DPJ appears to have been bringing private action, outcome unknown.
Refusal to appear as expert witness for court hearing 25/01/99 following witness summons by solicitors who have outstanding fees for previous case
Previous non-payment of DPJ's fees by solicitors. Advised that will be obliged to appear as expert witness if subpoenaed. At same time can inform solicitors of reasonable fees and if solicitors' [sic] decline then option of seeking to get summons set aside.
Concern re circulation of publicity leaflet to GPs by colleague (member) following request for private second opinion for knee pain
Non-lead, a [redaction] had been asked by GP to comment upon the leaflet that DPJ was circulating as the GP had concerns. Forwarded to MDU for advice. Suggestion that leaflet might be vulnerable to criticism by GMC with regard to suggesting superiority over other practitioners.
Concern re criticism of clinical skills by colleague in medical report for personal injury claim re exacerbation of anterior knee pain following fall
Mbr referred matter to GMC at the same time as writing to the MDU. Concern was related to part of a medical report provided by a colleague for the claimant. Mbr was concerned that it denigrated his clinical skills, clinical exposure to knees, intelligence and background reading. Mbr independently referred to GMC, matter left with the GMC. Nothing further heard.
Defamatory remarks in 'leaked' memo criticising member's admitting rights to private hospital
File not seen. Advice file.
Concern re letter from medical advisor at Western Provident Association re discretionary recognition for surgery
In the main employment/contractual matter and member advised to contact BMA. From brief correspondence it appears that member had been in correspondence with WPA from 1992 regarding refusal to recognise for surgery.
Letter from PPP re shortfall on account
Concern that re-advertised post for consultant senior lecturer in orthopaedics was withdrawn for political or racial reasons
Request for information re formation and registration of clinical private orthopaedic companies set up by consultant
Advice re member publicising in Yellow Pages
Request for assistance from member who works in orthopaedic field and who has been refused admission rights by private hospital because he does not hold a local consultant appointment
- The 3 patient complaints have all occurred in the last 15 months of practice. Two of these are GMC complaints.
- Most recent GMC case not taken further, but GMC criticised communication with patient in letter to DPJ. DPJ disagreed with letter and sought MDU advice on whether he could take this further with the GMC.
- A selection of advice files have been reviewed as four related to perceived defamation. DPJ does not appear to take criticism well. Claim brought by mbr against BUPA.
- Suspension outcome unknown decision taken that not MDU matter. Evidence that two junior staff members were asked by mbr to log on to database to which he had not access. There had been an episode 12 months earlier and when a repeat occurred the mbr was suspended by the hospital. Unknown whether mbr still practising privately (no NHS work) but likely to be so as paying high subscription rate.
- RA score 60. If consider that 'failure to change behaviour' applies, in view of repeated breach of computer security, reaches score of 80.
- There are no claims against mbr.
- Potential concerns in the past re the way in which DPJ has advertised.
1. Refer to RAG.
2. Place on register and review 6 months.
3. Non renewal of membership.
4. Erasure under Article 11."
"Qualifications inadequate for specialty
Not on relevant Specialist Register of GMC/GDC
Outside area of expertise/competence
Number of complaints & claims files in last 10 years: 0 5 ; 6 10; 11 15; 16 20; 20+
Number of settled claims in last 10 years
Average time (months) interval between claim/complaint notifications: 0 -5  ; 6 -12; 13 18; 19 - 24
Lack of co-operation with MDU
Misled/failure to notify/declare on application form
GMC/GDC involvement: 10
Guilty of serious professionally misconduct/restricted practice
Disciplinary/suspension problem: 10
Fraud/criminal allegations/dishonesty: 10
Technical competence questionable
Allegations sexual impropriety
Health problems/alcohol/drug abuse
Concern/criticised by expert
Dispute with colleagues: 5
Private sector work only: 5
Failure to change behaviour
Risk Assessment Score: 60"
- Suspended by private hospital following alleged repetition of violation of computer security by asking 2 junior, non-clinical members of staff to log on to the system. Following previous episode member had provided assurance to hospital management that would not be repeated.
- Member has entered into a number of disputes with colleagues/management and has brought a private action against BUPA for defamation and non-payment of fees. Mbr also did not accept criticism from GMC.
- Concerns re the way mbr has advertised."
The RAG meeting
"Dr DPJ Ortho/trauma surgery 208607J
Outcome After a long discussion about his position to recommend to the board of management to take action under article 11a so that his membership will not be renewed as of April 02. Features which were taken into account was the score of 80, the fact that he had 2 GMC complaints in the last 15 months, had been suspended for illegally accessing computer systems in a private hospital twice and that his track record suggested a difficult personality with regard to current disputes with colleagues."
The decision not to renew Mr Johnson's membership of the MDU
The nature of Mr Johnson's claims
The Data Protection Act 1998
"Basic interpretative provisions
1.-(1) In this Act, unless the context otherwise requires
'data' means information which
(a) is being processed by means of equipment operating automatically in response to instructions given for that purpose,
(b) is recorded with the intention that it should be processed by means of such equipment,
(c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system,
(d) does not fall within paragraph (a), (b) or (c) but forms part of the accessible record as defined by section 68; or
'data controller' means, subject to subsection (4), a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed;
'data processor', in relation to personal data, means any person (other than an employee of the data controller) who processes the data on behalf of the data controller;
'data subject' means an individual who is the subject of personal data;
'personal data' means data which relate to a living individual who can be identified
(a) from those data, or
(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,
and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual;
'processing', in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including
(a) organisation, adaptation or alteration of the information or data,
(b) retrieval, consultation or use of the information or data,
(c) disclosure of the information or data by transmission, dissemination or otherwise making available, or
(d) alignment, combination, blocking, erasure or destruction of the information or data;
'relevant filing system' means any set of information relating to individuals to the extent that, although the information is not processed by means of equipment operating automatically in response to instructions given for that purpose, the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is accessible.
(2) In this Act, unless the context otherwise requires
(a) 'obtaining' or 'recording', in relation to personal data, includes using or obtaining or recording the information to be contained in the data, and
(b) 'using' or 'disclosing', in relation to personal data, includes using or disclosing the information contained in the data.
4. (1) References in this Act to the data protection principles are to the principles set out in Part I of Schedule I.
(2) Those principles are to be interpreted in accordance with Part II of Schedule I.
(3) Schedule 2 (which applies to all personal data) [sets] out conditions applying for the purposes of the first principle;
(4) Subject to section 27(1), it shall be the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller.
Compensation for failure to comply with certain requirements.
13. (1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.
(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if
(a) the individual also suffers damage by reason of the contravention, or
(b) the contravention relates to the processing of personal data for the special purposes.
(3) In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned."
THE DATA PROTECTION PRINCIPLES
1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless
(a) at least one of the conditions in Schedule 2 is met,
4. Personal data shall be accurate and, where necessary, kept up to date.
5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.
INTERPRETATION OF THE PRINCIPLES IN PART I
The first principle
1. (1) In determining for the purposes of the first principle whether personal data are processed fairly, regard is to be had to the method by which they are obtained, including in particular whether any person from whom they are obtained is deceived or misled as to the purpose or purposes for which they are to be processed.
2. (1) Subject to paragraph 3 [which is not material], for the purposes of the first principle personal data are not to be treated as processed fairly unless
(a) in the case of data obtained from the data subject, the data controller ensures so far as practicable that the data subject has, is provided with, or has made readily available to him, the information specified in sub-paragraph (3), and
(b) in any other case, the data controller ensures so far as practicable that, before the relevant time or as soon as practicable after that time, the data subject has, is provided with, or has made readily available to him, the information specified in sub-paragraph (3).
(2) In sub-paragraph (1)(b) 'the relevant time' means
(a) the time when the data controller first processes the data, or
(3) The information referred to in sub-paragraph (1) is as follows, namely
(a) the identity of the data controller,
(b) if he has nominated a representative for the purposes of this Act, the identify of that representative,
(c) the purpose or purposes for which the data are intended to be processed, and
(d) any further information which is necessary, having regard to the specific circumstances in which the data are or are to be processed, to enable processing in respect of the data subject to be fair. "
Was there any processing of Mr Johnson's personal data?
"(15) Whereas the processing of such data is covered by this Directive only if it is automated or if the data processed are contained or are intended to be contained in a filing system structured according to specific criteria relating to individuals, so as to permit easy access to the personal data in question."
"(b) 'processing of personal data' ('processing') shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;
1. This Directive shall apply to the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system."
"101. The definition of 'processing' in the Directive and the Act alike is very wide. 'Use of the information or data' and 'disclosure of information or data by transmission, dissemination or otherwise making available' are phrases, given their natural meaning, which embrace the publication of hard copies of documents on which the data has been printed. Is such a meaning consistent with an interpretation which gives effect, in a sensible manner, to the objects of the Act?
102. While the Act extends to certain manual filing systems, it is otherwise concerned with the automated processing of personal information. Almost all of the provisions of the Act relate to activities prior to the moment when that information is transferred to hard copies. It would conflict with the overall nature and object of the Directive and the Act to seek to apply their provisions to the acts of those who distribute and make available to the public the product of prior data processing in which they have not been concerned. Extending 'processing' to embrace such activities need not, however, have that result.
103. The Directive and the Act define processing as 'any operation or set of operations'. At one end of the process 'obtaining the information' is included, and at the other end 'using the information'. While neither activity in itself may sensibly amount to processing, if that activity is carried on by, or at the instigation of, a 'data controller', as defined, and is linked to automated processing of the data, we can see no reason why the entire set of operations should not fall within the scope of the legislation. On the contrary, we consider that there are good reasons why it should.
The First Data Protection Principle
(a) The processing of the lead files
"(38) Whereas, if the processing of data is to be fair, the data subject must be in a position to learn of the existence of a processing operation and, where the data are collected from him, must be given accurate and full information, bearing in mind the circumstances of the collection.
(39) Whereas certain processing operations involve data which the controller has not collected directly from the data subject; whereas, furthermore, data can be legitimately disclosed to a third party, even if the disclosure was not anticipated at the time the data were collected from the data subject; whereas, in all these cases, the data subject should be informed when the data are recorded or at the latest when the data are first disclosed to a third party.
INFORMATION TO BE GIVEN TO THE DATA SUBJECT
Information in cases of collection data from the data subject
Member States shall provide that the controller or his representative must provide a data subject from whom data relating to himself are collected with at least the following information, except where he already has it:
(a) the identity of the controller and his representative, if any;
(b) the purposes of the processing for which the data are intended;
(c) any further information such as
- the recipients or categories of recipients of the data,
- whether replies to the questions are obligatory or voluntary, as well as the possible consequences of failure to reply,
- the existence of the right of access to and the right to rectify the data concerning him
in so far as such further information is necessary, having regard to the specific circumstances in which data are collected, to guarantee fair processing in respect of the data subject.
Information where the data have not been obtained from the data subject
1. Where the data have not been obtained from the data subject, Member States shall provide that the controller or his representative must at the time of undertaking the recording of personal data or if a disclosure to a third party is envisaged, no later than the time when the data are first disclosed provide the data subject with at least the following information, except where he already has it:
(a) the identity of the controller and of his representative, if any;
(b) the purpose of the processing;
(c) any further information such as
- the categories of data concerned,
- the recipients or categories of recipients,
- the existence of the right of access to and the right to rectify data concerning him
in so far as such further information is necessary, having regard to the specific circumstances in which the data are processed to guarantee fair processing in respect of the data subject. "
(b) The processing of the non-lead files
Paragraphs 2(1) and (3) of Part II of Schedule 1- conclusion
Was the processing anyway unfair?
"51. The word 'fairly' in the First Principle is not defined in the Act, and no guidance is given as to its interpretation. In determining its meaning we must have regard to the purpose of the Data Protection Act. It is quite clear, from the Act as a whole and in particular from the Data Protection Principles set out in Schedule 1, that the purpose of the Act is to protect the rights of the individual about whom data is obtained, stored, processed or supplied, rather than those of the data user. The Act was the result of concerns about the use of computer data, concerns voiced in Parliament and in the reports of a number of representative official committees and widely held throughout Europe (hence the Council of Europe's Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data opened for signature on 28 January 1981 referred to in sections 37 and 41 of the Act).
52. In our view, in deciding whether the processing we have described is fair we must give the first paramount consideration to the interests of the applicant for credit the 'data subject' in the Act's terms. We are not ignoring the consequences for the credit industry of a finding of unfairness, and we sympathise with their problems, but we believe that they will accept that they must carry on their activities in accordance with the Principles laid down in the Act of Parliament.
53. Having taken due account of the evidence we have heard and the considerations urged upon us we have come to the clear conclusion that it is unfair for a credit reference agency, requested by its customers to supply information by reference to a named individual, so to program the extraction of information as to search for information about all persons associated with a given address or addresses notwithstanding that those persons may have no links with the individual the subject of the enquiry or may have no financial relationship with that individual. We believe this to be so even if the customer has requested address-based information and notwithstanding what is said to be its predictive value. We reject the notion that an organisation like CCN, with its wide specialist knowledge of and experience in credit reference and credit scoring, is a mere 'conduit pipe'. We believe the sort of processing carried out in this case is the very sort of activity at which the Act is aimed. We think it right to say that we accept that CCN did not intend to process data unfairly, and did not believe itself to be acting unfairly. But it is necessary to determine the question of fairness objectively, and in our view the case of unfairness has been made out."
Was there any unfairness in Dr Roberts's summaries of the four computerised files?
"It is nearly two years since you performed a Therapeutic arthroscopic operation to my left knee, (29/01/98). After a visit to you, plus a letter of dissatisfaction you did not show me the same confidence that you portrayed before the operation, so that is why I did not take you up on the verbal suggestion that you did the operation again (06/11/98). I have since had another MRI scan on my Knee which a copy is attached, so can you please tell me why, why is my Knee in such a poor state after an operation that you performed?, as far as I was concerned it should of felt a lot better than it did, in fact the knee feels worse than it did before, surely the MRI scan should of shown you the same picture two years ago as it does today, please could you explain."
"The members noted, however, that your communication with [Mr X] may have fallen below the levels a patient would expect to receive. They felt that you could possibly have explained more fully the limitations of the procedure that you were proposing before [Mr X's] first arthroscopy. The members also felt that you could have cautioned [Mr X] afterwards about the extent that his knee was damaged and advised a limit on the physical activity that he should undertake. For information, I enclose a copy of our booklet 'Good Medical Practice' and would refer you in particular to the contents of paragraph 12 headed 'Maintaining Trust' which highlights the importance of effective relationships between doctors and patients."
"Our client has reiterated that he did not access any patient information not referring to his own patients, nor did he access or have sight of any information relating to other consultants. We are instructed that our client did not knowingly print any documents and did not remove or have sight of any printed documents. Since the account of Mr Johnson's use of the computer given by BUPA staff seems to differ from our client's recollection of events, and since we understand that different staff were present at different times during the afternoon, it would assist if our client knew which members of staff provided the different pieces of information which form the basis of your letter.
Our client has confirmed that he has not personally sought or been given access to the computer system on any day other than 11 March. Neither he nor his secretary will use the log-ins provided to him on 11 March to access the system in the future and will only seek to obtain similar details, as set out above, for the clinical management of his patients, under the supervision of BUPA staff."
"You are well aware that such a request is in breach of this hospital's regulations and, if you had not been so earlier, you have certainly been aware since March 1999 when BUPA's lawyers engaged in an exchange of correspondence with yours concerning an incident on 11 March 1999 when you went into the Bookings Department of this hospital and asked to be logged on to the computer for a total of around four hours. It was pointed out to you at the time that you could have accessed confidential patient and insurance information. It was made clear to you that the member of staff in question had done so in breach of regulations. You said via your solicitors at the time that you had not been aware that this was a breach of hospital regulations.
In a letter from your solicitors of 27 April 1999, you said that you had not personally sought or been given access to the computer system on any day other than 11 March and you agreed not to use the logins provided to you on that date to access the system in future and said that you would only seek to obtain similar details of the clinical management of your patients under the supervision of appropriate BUPA staff.
If the allegations made to me yesterday by the two new members of staff are true, then you have been in serious breach of this hospital's regulations, have sought to induce junior members to breach the regulations and are in breach of your undertaking given in March 1999 on this matter.
This hospital takes its duties of patient confidentiality and its statutory duties under the Data Protection Act extremely seriously. Had you been logged on as requested, the hospital would have been in breach of both those duties. I wish to convene a special hearing of the Medical Advisory Committee of this hospital so that you may make your own submissions on this matter, and I would suggest that this is done as soon as possible, if possible next week. Perhaps you could contact me to arrange a suitable date.
In the meantime, I feel that I have no alternative but, with immediate effect to suspend your inpatient and outpatient admitting rights at this hospital pending a hearing to ascertain the full facts of this matter.
In the circumstances I also feel I have no option other than to insist that you no longer enter any part of the hospital's property."
"Whilst I understand and assume it is accepted that clinicians can freely ask hospital staff about the clinical management of their patients. In this regard it would be reasonable of myself or any clinician to request follow up details of their patients from staff sitting at, and undertaking reception duties. It is usual that the hospital staff seeks to answer such inquires [sic] by reference to their computer screens and then inform the inquirer as to the answer if appropriate. Please identify so that I can understand the case to answer, how what is described differed from this. Certainly I have not ever to my knowledge or recollection made any other type of request.
I note that the letter does not accuse me of sitting at, using, attempting to use, logging on to or accessing any computer information whether restricted or not. In this regard please inform me of, and provide, the hospital regulations which I am accused of breaching. I have previously reassured the hospital that I have never and would never log onto or personally use the hospital computer system so as to obtain computer data using the provided codes without permission and or supervision. The letter does not identify any breach of this undertaking."
"It is not in the interests of WPA to recognise individuals who over-charge our subscribers as this causes them embarrassment and inconvenience. Neither is it in the interests of WPA to continue voluminous correspondence with individual practitioners."
The fairness of the summary of the files
The Fourth Data Protection Principle
The Fifth Data Protection Principle
"(55) Whereas, if the controller fails to respect the rights of data subjects, national legislation must provide for a judicial remedy; whereas any damage which a person may suffer as a result of unlawful processing must be compensated by the controller, "
"1. Member States shall provide that any person who has suffered damage as a result of an unlawful processing operation or of an act incompatible with the national provisions adopted pursuant to this Directive is entitled to receive compensation from the controller for the damage suffered."
Special damage in the nature of pecuniary loss
Compensation for distress
". By convention, on taking up indemnity insurance with one of the few other providers offering such a facility, a report is sent from one insurer to the other. The MPS may not, in my case, have obtained such a report from the MDU. Had they done so, however, it might have prejudiced my obtaining any insurance with the MPS, which would have had a devastating impact on my ability to work.
It is my understanding that there are no alternative insurers for consultant orthopaedic surgeons. It has been suggested that this is available on the open Lloyds market. This may be true, but the costs for an individual of obtaining insurance in this way would be prohibitive. It would not be economically feasible for an individual to go on to the open market for insurance. It was my understanding that my career would be at an end had MPS not stepped in. This apprehension has caused me considerable distress, and continues to cause me considerable concern. The realization and my recent experiences have a continuing effect on my relationship with my current insurer: should I continue to seek advice from MPS in the same way that I did of MDU?"
Damage to reputation
"Practice privileges will in all cases be subject to periodic review (see section 3 below) and be subject to the practitioner providing documentary evidence to verify that, amongst other things, they are appropriately qualified, have membership with a medical indemnity organisation, and are registered with the General Medical Council."
"Nobody can say that Mr Johnson is other than a competent and able surgeon. Further, there is no suggestion anywhere that he has any stain on his character. Mr Johnson believes that this expulsion took place as a result of the fact that unfair and improper proceedings were adopted by the MDU in assessing his future membership prospects, which, in turn, involved the unfair and improper processing of data about him."
It continued by explaining that the purpose of the application was to obtain the disclosure of documents under the DPA which would tell Mr Johnson more about the MDU's decision. It recorded Miss Reid's submission for the MDU (ultimately upheld by Laddie J) that Mr Johnson had already been given all the material he was entitled to.
"You should be aware that [Mr A] asked me last Friday if your professional cover had been withdrawn by the MDU, as that was the interpretation that he had put on the article. He also stated that he had communicated with the MDU previously urging them to restrict the membership of practitioners that have drained the Union's resources. The implication seemed clear that he considered you would be in that category. [Redacted part] The article has clearly had the capacity to mislead colleagues and denigrate your professional standing."