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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Johnson v The Medical Defence Union Ltd (2) [2006] EWHC 321 (Ch) (03 March 2006) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2006/321.html Cite as: [2006] EWHC 321 (Ch) |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| DAVID PAUL JOHNSON |
Claimant |
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| - and - |
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| THE MEDICAL DEFENCE UNION LIMITED |
Defendant |
____________________
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 :
Introduction
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:
Invaluable advice
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
"0010691
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.
0010574
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.
0007509
Concern re ownership of MDU assets following proposed changes with Zurich Insurance
Advice file.
0007466
Advice re breakdown of dr/patient relationship/defamation re alleged erroneous prognosis; disappointment with treatment outcome
Complaint
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.
9910222
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.
9810073
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.
9710810
Concern re circulation of publicity leaflet to GPs by colleague (member) following request for private second opinion for knee pain
Advice file
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.
9608165
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.
9510999
Defamatory remarks in 'leaked' memo criticising member's admitting rights to private hospital
File not seen. Advice file.
9500242
Concern re letter from medical advisor at Western Provident Association re discretionary recognition for surgery
Advice file.
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.
9410740
Letter from PPP re shortfall on account
9404163
Amorous patient
9302572
Concern that re-advertised post for consultant senior lecturer in orthopaedics was withdrawn for political or racial reasons
9208720
Request for information re formation and registration of clinical private orthopaedic companies set up by consultant
Advice file.
9205597
Advice re member publicising in Yellow Pages
Advice file.
9107652
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
Advice file.
"Observations
- 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.
Consider:
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
Training incomplete
Not on relevant Specialist Register of GMC/GDC
Outside area of expertise/competence
Number of complaints & claims files in last 10 years: 0 5 [0]; 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 [20] ; 6 -12; 13 18; 19 - 24
Rudeness/attitude/derogatory remarks
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
Records: inadequate/missing/altered
Health problems/alcohol/drug abuse
Consent problems
Concern/criticised by expert
Dispute with colleagues: 5
Private sector work only: 5
Failure to change behaviour
Risk Assessment Score: 60"
" Observations
- 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."
"SCHEDULE I
THE DATA PROTECTION PRINCIPLES
PART I
THE 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.
PART II
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.