Covert medication and help with FOI request to Medical Practitioners Tribunal

Law and practice Other
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The doctor in this case prescribed Risperidone depot but told the patient he had been given Clopixol depot, as “covert medication”. She was then sacked, after being treated atrociously by her employer: Dr A Malik v CAS (Cygnet) Behavioural Health Ltd [2021] UKET 2403141/2018.

She admitted misconduct at the Medical Practitioners Tribunal but it found her not to be impaired: Ambreen Malik [2021] MHLO 8 (MPT). That tribunal originally published its decision but it is no longer on the internet. It would be interesting to see what was said about the ambit of covert medication, particularly the distinction between giving medication completely secretly and claiming that medication X is medication Y. The tribunal rejected my FOI request that it be republished. See the case page for a link to the What Do They Know request, but I’ll set out extracts below.

If anyone has any Freedom of Information Act experience could you please let me know? I haven’t had time to read the cases referred to in their refusal, but I was wondering whether to ask for a redacted decision (showing the ethical/legal issues and hiding any irrelevant personal information). Thanks in anticipation.

FOI request:

On 2 December 2024 I asked the MPTS for a copy of the decision following the hearing on 15 July 2021. On 2 January 2025 the GMC refused (ref IR1-4692950634), citing s40(2) and s40(3A)(a) FOIA 2000.

I would like you to review this decision:

  1. The MPTS decision was previously published: see Dr Ambreen Zahoor MALIK GMC ref. no. 6066144 - copy of MPT determination - a Freedom of Information request to General Medical Council - WhatDoTheyKnow

  2. Details of the MPTS hearing were reported in the press at the time: for example, see Blackburn psychiatrist cleared of misconduct after lying about medication - LancsLive

  3. Although the finding was “not impaired”, the doctor admitted misconduct (see final paragraph of the article above).

  4. The Employment Tribunal has published a 434-paragraph decision giving full details, and a 56-paragraph reconsideration: see Dr A Malik v CAS Behavioural Health Ltd and Signet Healthcare Ltd: 2403141/2018 - GOV.UK

  5. Covert medication involves complicated legal issues, and it would be in the public interest for the reasons given by the MPTS to be known.

Refusal:

I have considered the matter from first principles again, including the points you raised, but I confirm that I agree with the decision of Ms Janghir. In doing so, I want to make clear that I completely accept that the decision was once public, there is reporting about it available to read now, Dr Malik admitted misconduct and there are two public employment tribunal decisions in the public domain concerning him.

As previously explained, the GMC treats complaints made about doctors as confidential. If a case progresses to a hearing, or an investigation concludes with a warning or undertakings, certain information may be made publicly available by the GMC, in line with our publication and disclosure policy for fitness to practise information. A key part of the policy is time limited publication.

There is only one legal basis which could theoretically provide the justification for providing you with the information you seek. It is referred to as ‘Legitimate Interests.’ In order for this to apply, there is a three part test. The test would be met if you are pursuing a legitimate interest, processing is necessary for the pursuance of that purpose and the interest in providing the information outweighs the rights and freedoms of Dr Malik. The ICO’s guidance in respect of the exemption Ms Janghir applied-section 40, including the test referred to above, is here.

I now turn to considering the test to determine if disclosure is legal. I accept that you are pursuing a legitimate interest. There is a general interest in transparency, accountability and the fair and proper administration of regulation. There may well be a specific interest in this case because of the issues it related to as well.

However, it isn’t obvious to me that providing the material you seek is reasonably necessary to meet all these objectives.

The GMC’s publication and disclosure policy attempts to strike a careful balance between transparency and accountability, it’s data protection obligations and the rights of all people whose personal data we process. Publishing the material we do in line with the policy (when taken along with all of the other information we publish) meets the objective. In respect of the fair and proper administration of justice, I would point out that some other judicial, regulatory, or similar bodies do not publish the reasoning for their decisions or do so on a time limited basis. The GMC is not an outlier in this respect.

Furthermore, while I accept that there may be a special interest in this case, it isn’t obvious to me that it is of any more importance that other types of allegations that could be considered by a tribunal.

If the material you seek isn’t necessary to meet the objectives pursued, the application of the test ends and the request fails. However, if it were to be found that providing the material you seek was necessary, I believe your request fails on the third part of the test.

I appreciate that there is reference to the tribunal in the public domain. However, the full contents of the determination are not public and so what is being requested goes significantly beyond what is available publicly and is against our publication and disclosure policy. The policy influences doctors legitimate expectations about the information we make public about them and for how long. Any doctor who had information published about them outside of out policy would likely feel a measure of distress about this- especially, as in this case, where the doctor was found not to be impaired and the disclosure to you under FOIA would be to the public at large, forever. I have considered the idea that because there is some information in the public domain already, the doctors distress may be less than it otherwise be. However, I do not find it persuasive because the material requested goes so much further than what is public.

My thinking has been influenced by this first tier decision which dealt with a request for once published tribunal determinations out with the GMC’s policy, in which the GMC applied S40(2) of FOIA. It was agreed that the GMC was correct in not providing the determination. The requester appealed to the Upper Tribunal, who rejected the appeal here.

I understand that this decision will be disappointing to you but I hope that I have explained how we have made it within the boundaries of accepted case law. To make any other decision would leave the GMC open to potential legal challenge by publishing material in breach of the doctors data protection rights.

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I am confused because the IR numbers seem to be about different things.

The link provided is Dr Ambreen Zahoor MALIK GMC ref. no. 6066144 - copy of MPT determination - a Freedom of Information request to General Medical Council - WhatDoTheyKnow [Request IR1-3229597175]

It appears by inference that your name is “J Roberts”. The original FOIA request was “[…] full details of the MPT hearing concerning Dr Ambreen Zahoor MALIK that concluded on 15 July 2021.” The request was rightly rejected under S22 FOIA on a temporal factor (at that time) by the GMC.

At 08th Jan 2025, you appear to be “Jonathan Wilson” - seeking a review of the 2021 decision by the GMC to withhold the MPT decision at 2021. Review request: “Not impaired” decision in relation to Dr Ambreen Zahoor MALIK - a Freedom of Information request to Medical Practitioners Tribunal Service - WhatDoTheyKnow [Request IR1-4738590741]

IR1-4738590741 is written as against IR1-4692950634 and seemingly not against IR1-3229597175

The GMC response states “On 2 January 2025 the GMC refused (ref IR1-4692950634) citing s40(2) and s40(3A)(a) FOIA 2000.”

Perhaps I missed it. I am unable to find IR1-4692950634 to read it. I’m confused and/or the GMC is confused.

See also Employment Tribunal describes a Cygnet medical director’s email to the GMC about a whistleblower as “venomous and dishonest”. Dr Ambreen Malik wins her whistleblowing case. – Alexander’s Excavations

I wanna get to the bottom of this. My war room is ready! :rofl::joy:

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I wrote them an email which they took as a FOI request, which I think was before I saw the original J Roberts request and decided to use the What Do They Know website. That reference number relates to the email correspondence.

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Hi Jonathan

FIGHT! :rofl: As I always say, “When you go to battle use anything you can find - and prepare for war!”

From the WAR ROOM:

The following is AI assisted. I have read it, error checked it, checked legal references. I know you dislike AI. However I wasn’t going to spend 20 hours or more doing what could be achieved in an hour. I believe that we should use whatever tools are available in ‘my war room’. I read all of the following. It sounds fairly good. AI is not a substitute for our reasoning or judgement. You may remove this post if you dislike AI assistance; no apology required. [I’ve kept a copy for my independent action on this (if necessary)]. AI can make serious errors - so can I.

[Formatting of this post in markdown code was done using Typora. because I was not going to format it manually. Typora is not AI.]

My understanding

  • a copy of the MPT judgement is sought.
  • In effect the GMC hides or re-hides a judgement that was once in the public domain.
  • The GMC spends our money hiding information as in Kayode v Information Commissioner and the General Medical Council [2021] UKUT 86 (AAC) “The information sought by Mr Kayode from the GMC was “a copy of the Fitness to Practice Panel (FTPP) determination in the Fitness to Practice proceedings involving [a named doctor]”. The eventual basis of the GMC’s refusal to provide Mr Kayode with the information he sought was section 40(2) of FOIA. Mr Kayode then complained to the Information Commissioner under section 50 of FOIA.”

The GMC’s Position

The GMC has refused your request under Section 40(2) and Section 40(3A)(a) of the Freedom of Information Act 2000 (FOIA), citing data protection concerns. Specifically:

  • The GMC argues that releasing the judgment would infringe on Dr M’s data protection rights.
  • They claim that publishing the material is unnecessary because their publication policy already strikes a balance between transparency and privacy.
  • They assert that the public interest in disclosure does not outweigh Dr M’s rights and freedoms.

The task is to challenge these arguments by demonstrating that:

  1. The judgment was previously published and thus should not be treated as confidential.
  2. The GMC’s refusal undermines transparency, accountability, and public confidence in regulatory processes.
  3. The “legitimate interests” test can be satisfied.

There are alternatives to consider.

Key Arguments to Persuade the GMC

A. Once Published, Always Public

  • Fact : The MPT judgment was previously published online by the GMC in 2021, even if it was later removed. This means it entered the public domain at some point.
  • Implication : Once information is made public, restrictions on its dissemination are difficult to justify unless there are strong reasons to do so. The GMC cannot reclaim confidentiality for information that was once publicly available.
  • Legal Support
    • In R (on the application of Guardian Newspapers Ltd) v City of Westminster Magistrates’ Court [2010] , the court emphasised that once information is made public, it is challenging to impose new restrictions on its dissemination. Although this case deals with contempt of court, it underscores the principle that once information is released into the public domain, it remains accessible.

Action : Highlight this principle and argue that since the judgment was previously published, it should not now be treated as confidential.

B. Transparency and Accountability

  • Fact : The GMC has a statutory duty to ensure transparency and accountability in its regulatory processes. Publishing tribunal decisions helps maintain public trust in the fairness and integrity of the system.
  • Implication: Refusing to disclose the judgment undermines these principles, especially given that the case involved admitted misconduct and has been referenced in two employment tribunal decisions.
  • Legal Support:
    • Section 1(1)(b) of FOIA requires public authorities to disclose information unless exemptions apply. The burden is on the authority to justify why withholding the information serves the public interest.
    • Case law such as Common Services Agency v Scottish Information Commissioner [2008] supports the principle that transparency enhances public confidence in regulatory bodies.

Action : Emphasise the importance of transparency in cases involving professional misconduct. Point out that the GMC’s refusal appears inconsistent with its own commitment to openness.

C. Legitimate Interests Test

The GMC applied the three-part “legitimate interests” test under GDPR and concluded that disclosure fails on both necessity and proportionality grounds. You can argue that:

  1. Pursuing a Legitimate Interest : There is a clear public interest in understanding how the GMC handles cases involving serious allegations, particularly those related to misconduct.
  2. Necessity : Without the full judgment, the public cannot fully assess the GMC’s decision-making process or the tribunal’s reasoning. The limited information currently available is insufficient.
  3. Proportionality: Any distress caused to Dr M is mitigated by the fact that -
    • The judgment was already published in 2021.
    • She was found not impaired, meaning the outcome was favourable to her.
    • The GMC’s policy allows for time-limited publication, suggesting that temporary exposure to scrutiny is acceptable.

Action : Provide detailed reasoning to show that the legitimate interests test is met. Use examples of similar cases where judgments were disclosed despite initial objections.

D. Redaction as a Compromise

If the GMC remains concerned about privacy, propose redacting sensitive details from the judgment before release. This approach:

  • Protects Dr M’s personal data.
  • Allows the public to understand the tribunal’s reasoning without compromising confidentiality.

Action : Suggest specific redactions (e.g., names of witnesses, identifying details) and offer to review the redacted version to ensure it meets your needs.

E: OPTIONS

Consider writing directly to the Chair for the Medical Practitioners Tribunal Service: The MPT is often seen ‘as the GMC’, but it is meant to hold independence from the GMC.

Consider finding Dr Malik and asking for a copy

FIRST DRAFT: Letter to the GMC

[Your Name]
[Your Address]
[City, Postcode]
[Email Address]
[Date]

General Medical Council

Dear Sir/Madam,

Request for Internal Review of FOIA Decision (Ref: IR1-4692950634)

I write to request an internal review of the GMC’s decision dated 2 January 2025, refusing my FOIA request for the MPT judgment concerning Dr Malik (Ref: IR1-4692950634). The GMC cited Sections 40(2) and 40(3A)(a) of FOIA, claiming that disclosure would breach Dr Malik’s data protection rights.

I respectfully submit that the GMC’s decision is flawed for the following reasons:

  1. Once Published, Always Public : The MPT judgment was previously published online by the GMC in 2021, entering the public domain. Its subsequent removal does not negate its prior availability or the public’s right to access it. As established in R (on the application of Guardian Newspapers Ltd) v City of Westminster Magistrates’ Court [2010], once information is made public, it is difficult to impose new restrictions on its dissemination. Therefore, re-releasing the document now does not constitute a new infringement of law relevant to privacy.
  2. Transparency and Accountability: The GMC and MPT has a statutory duty to ensure transparency and accountability in its regulatory processes. Publishing tribunal decisions helps maintain public trust in the fairness and integrity of the system. Refusing to disclose the judgment undermines these principles, especially given that the case involved admitted misconduct and has been referenced in two employment tribunal decisions. Section 1(1)(b) of FOIA requires public authorities to disclose information unless exemptions apply. The burden is on the authority to justify why withholding the information serves the public interest.
  3. Legitimate Interests Test: The “legitimate interests” test under GDPR is met in this case. There is a clear public interest in understanding the MPT’s reasoning, especially given the admitted misconduct and the impact on public trust in medical regulation. Without the full judgment, the public cannot fully assess the GMC’s decision-making process. The limited information currently available is insufficient. Any distress caused to Dr M is mitigated by the fact that the judgment was already published in 2021. Her legitimate expectations of privacy were already compromised at that time.

I kindly request that the GMC reconsider its decision and provide me with a copy of the judgment. If necessary, I am open to discussing redactions to protect sensitive information.

Please treat this letter as a formal request for an internal review in the context of potential engagement of Section 50 of FOIA. I look forward to your response within the statutory timeframe of 40 working days.

Yours faithfully,
[Your Name]

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I’ve only skimmed your post so far, but this stuck out. I had tonight of this to begin with but ended up down the FOI rabbit hole instead. I wonder whether anyone reading this knows her.

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Probably a silly idea.

But you mentioned it was released and then removed. So it was in the public domain.

I’ve read the article by the reporter in the link you have provided for the Lancs Live - it sounds as if they used the document about the decision as a source to write their story about Dr Malik. It might be worth contacting the publication or the reporter and see if they still have a copy?

The reporter’s email is in the editorial section.

Not actually sure if reporters are permitted to go into hearings. The article might have been written live with their own personal notes and transcriptions. However, worth a punt asking if they do anyway.

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