The ensuing controversy raised difficult questions about the balance between free speech and the rights of those accused of wrongdoing. Regulators must be sensitive to the rights of members of the professions they regulate – but also to the right of the public to receive information on matters of public interest. The NMC has not struck the right balance in this case.
The NMC took its decision in September, after it received advice from the Information Commissioner’s Office. It had been criticised for its handling of charges brought against Pauline Cafferkey, the nurse who contracted Ebola on return to the UK from Sierra Leone. Allegations that Cafferkey had allowed an incorrect temperature to be recorded while being screened at Heathrow Airport were dismissed by the disciplinary panel; and another charge of dishonesty – recorded on the website and widely reported – was dropped at the hearing.
The NMC’s amended Information Handling Guidance now states that putting the detail of charges into the public domain in advance is “disproportionate and can be prejudicial to a nurse or midwife” – even when a hearing will be held in public; and even though it is under a statutory duty to publish findings of misconduct. The rationale is that “charges might be dropped, amended, or not ultimately proven”. Media organisations immediately protested. They stated that they now have no way of determining in advance whether charges are serious or newsworthy enough to justify the expense of sending reporters to a hearing – so public interest news would go unreported. The Chief Executive of the Society of Editors commented that move laid the NMC “open to the belief it was trying to sweep allegations under the carpet”.
Along with the full name of the nurse or midwife facing a hearing, the NMC’s website now publishes only the “type” of allegation they face, five days in advance of a fitness to practice hearing. The categories are broad, vague and just six in number: Misconduct, lack of competence, insufficient command of English, criminal conviction, determination of unfitness to practise by another regulatory body; and unfitness caused by a health impairment. It would not be possible, for example, to tell the difference between a misconduct charge by reason of theft from one founded on alleged abuse or neglect of patients.
The NMC’s approach sharply contrasts with that of General Medical Council (GMC), set out in its current Publication and Disclosure Policy. The GMC as a matter of course publishes a summary of the factual information relating to each misconduct charge in a press release for each forthcoming hearing.
So where does the law stand? When an identifiable individual has been the subject of a formal charge following an investigation about their competence or conduct, that fact constitutes their personal data under the Data Protection Act 1998. Accordingly, it can only be disclosed fairly and lawfully and pursuant to a condition set out in Schedule 2 DPA. Where disclosure by a regulator would constitute misuse of private information or breach of confidence, it would be unlawful.
The courts must balance two competing ECHR rights in each case: Article 8, which protects privacy; and Article 10, which protects freedom of expression. Factors relevant to a determination include the nature and scope of the information at issue (some is more private and/or more relevant to the public interest than others), the extent of the damage inflicted by publication of the information, the extent to which the information is accurate and reliable; and the extent to which it has already been or is likely to be made public.
The outcome of the balancing test in breach of confidence and misuse of private information cases is fact-sensitive; and a blanket policy of disclosure that excludes a relevant factor from consideration runs a risk of being applied unlawfully in a given case. It is important for regulators to retain the flexibility to take account of individual circumstances in their publications decisions. Thus the Solicitors Regulation Authority (SRA), for example, usually publishes a “clear but brief description of the charges” faced by solicitors. But the SRA retains discretion not to do so where – having regard to Article 8 – “the impact of publication on the regulated person would be disproportionate”.
The Courts have recognised that disciplinary schemes of professional regulators are designed to foster public confidence in the way that members of the profession perform their tasks – and for that reason, limited disclosure to the public at large is often appropriate (see e.g. here and here). To date, there has been no cases in which a regulator who publicised accurate details of charges in advance of a hearing has been held to have acted unlawfully – though the SRA at the last count had been subject to five judicial review applications in respect of its decisions.
The GMC’s policy is too rigid. It only withholds advance publication of the detail of misconduct charges where it would pose significant risk to the physical or mental health of someone connected to the hearing. Neither “the reputational risk to a doctor or their family” nor “the strength of evidence to support the allegations” are considered relevant. But these two factors are relevant to legality: the degree to which the information is ‘private’ is highly likely to bear on reputational risk and the damage that may inflicted by publication; and the strength of the evidence may well bear on the public interest in publishing the detail of a charge.
Regulators are also classed as “functional” public authorities under the Human Rights Act 1998. They are bound by section 6(1) HRA not to act incompatibly with Convention rights, including the right to freedom of expression. That right includes the right of the public to receive information and the right of the press to impart it. In respect of the NMC, the question is this: If the practical effect of a regulator’s publication policy is to frustrate public interest reporting of a hearing, has it acted incompatibly with Article 10?
Much turns on the availability of a less restrictive means. The Bar Standards Board, for example, avoids publishing factual details of misconduct charges in advance of disciplinary hearings – but does set out the paragraphs of the BSB Handbook under which the charges are laid. At the last count, there were 158 Conduct Rules for barristers, enabling anyone reading the BSB’s website to gain a far better understanding of the nature of charges than the NMC’s limited categorisation allows. The NMC could develop its categorisation scheme.
Another approach would involve the NMC acting more flexibly. In appropriate cases, it could agree to disclose limited additional details, either on its website or to a journalist who phoned to enquire about forthcoming hearings. As it stands, the information the NMC provides is too minimal, its guidance is applied too rigidly; and it fetters the ability of the press to report on disciplinary hearings.
Zoe McCallum is a trainee barrister at Matrix Chambers