IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION BIRMINGHAM DISTRICT REGISTRY

Case No: BM312260

BETWEEN :

RITA PAL Claimant - and THE GENERAL MEDICAL COUNCIL Defendant

1st

CATHERINE GREEN Defendant

2nd

PETER LYNN Defendant

3rd

SARAH BEDWELL Defendant

4th

RE-AMENDED PARTICULARS OF CLAIM

NOTE: These are the Re-Amended Particulars of Claim served pursuant to a request for consent to the amendments from the Defendants.

To avoid confusion these particulars are served in only the version for which consent is being sought.

BACKGROUND

1. The claimant is a medical practitioner registered with the General Medical Council (Registration number 4528472). She qualified from University College London Medical School, now known as Royal Free and University College Medical School, in 1998.

2. Both during and after her training as a junior doctor the claimant encountered many situations in which she found patient care at the City General Hospital, Stoke on Trent, to be severely substandard. Having tried on several occasions to bring such matters to the attention of her superiors, only to be victimised and treated as a “trouble maker”, the claimant eventually described her experiences to journalists from The Sunday Times. 3. The newspaper published the story on the 2nd April 2000, under the title “Elderly Helped To Die”. The claimant also submitted a report of her experiences to the General Medical Council, and set up an internet web site, www.nhs-exposed.com, to highlight her concerns about staffing levels and patient care within the National Health Service.

4. Rather than take these concerns brought in her professional capacity seriously, the General Medical Council responded by a campaign of harassment and victimisation. The memoranda and correspondence show the General Medical Council to question her ability as a doctor, degrade her personal attributes describing her as “paranoid” “intemperate and difficult personality” and in effect labelling her with a mental illness. Furthermore, the General Medical

Case No: BM312260 R Pal v General Medical Council

2

Council did not make any efforts to protect an individual who had in effect whistleblown.

5. The claimant’s web site, while aiming to provide information for both patients and health workers who have experienced problems within the National Health Service, has been highly critical of many aspects of the medical profession, including the General Medical Council.

6. Following the withdrawal of her complaint as a consequence of disagreements with the General Medical Council and their legal advisors, the General Medical Council began an illegal investigation into the claimant.

7. Although no complaint had been received about the claimant, and without following required procedure, members of the General Medical Council’s staff began to question the claimant’s mental health. A number of memoranda were exchanged between staff members, including an unidentified health screener and a member of the Council (claimed by the GMC to be one and the same person), that cast aspersions upon the claimant’s fitness to practice.

8. No impairing condition could be found, but records of the unofficial enquiry were retained on her file for far longer than is permitted under the Data Protection Act 1998. This information has been disclosed, without the claimant’s consent to at least one NHS Trust.

Case No: BM312260 R Pal v General Medical Council

3

9. The records in question contain defamatory comments impugning the claimant’s mental health, and, until recently, included printed sections of her web site.

CLAIMS DATA PROTECTION CLAIMS:

10.

The First Data Protection Claim against only the First and Second Defendants: a. On the 18th December 2002 Dr E Rose, Medical Director of North Cheshire NHS Trust held a telephone conversation with Ms Catherine Green of the Manchester General Medical Council Office. During this conversation Ms Green revealed to him confidential information to the effect that the claimant:

“has not been reported to the General Medical Council but has been instrumental in reporting a large number of people to the GMC over the last year or so.” ( Memo written on 18th December 2002)

b. Dr Rose subsequently distributed this information, via a memorandum dated 18th December 2002, to Dr G Murphy, Dr J G Williams, Mr P Cronin, Mr M Curwin, Dr David Graham and Dr P U Prabhu. Of these individuals, Dr David Graham was himself already the subject of a complaint, made by the Claimant, to the General Medical Council, and Dr Prabhu was not even a member of North Cheshire NHS Trust. The Claimant will say that it was reasonably foreseeable that confidential information imparted by Ms Green to Dr Rose would or might be disseminated by him to others.

Case No: BM312260 R Pal v General Medical Council

4

c. On the 25th April 2003, Samantha Huntington, a senior caseworker at the General Medical Council’s Fitness to Practice Directorate, wrote to the Claimant concerning Catherine Green’s conversation with Dr Rose. In this letter Ms Huntington confirmed that information about the claimant was disclosed without her consent and apologised for the General Medical Council’s “unfortunate error” in handling the claimant’s personal data.

11. The Second Data Protection Claim against only the First Defendant:

a. Furthermore, additional evidence indicates that this transfer of confidential information from the General Medical Council to North Cheshire NHS Trust was not an isolated incident. Rather it appears that sensitive

personal

data

concerning

the

Claimant,

including

unsubstantiated speculation as to her mental state, had been passing to the Trust for some time. Full particulars of this allegation will be furnished after the claimant's further Part 18 requests have been answered and/or Disclosure has been provided, but reliance is placed at this stage on an email sent by Dr Rose to Dr Williams (and one other) on 22nd October 2002.

b. It is clear that the information disclosed by the General Medical Council to North Cheshire NHS Trust, and, subsequently, by the Trust to both Dr Prabhu and Dr David Graham, falls within the definition of sensitive personal data as set out by Paragraph 2 of the Data Protection Act 1998. Schedule 3 of the Act, Conditions Relevant For Purposes Of The First Principle: Processing Of Sensitive Personal Data, specifies in Paragraph 1 that “The data subject has given his explicit consent to the processing of the personal data.” At no time has the claimant consented, explicitly or otherwise, to the disclosure of her personal data to North Cheshire NHS Trust.

Case No: BM312260 R Pal v General Medical Council

5

c. The claimant therefore seeks compensation from the General Medical Council (and, as regards the facts and matters pleaded under 1 a - c above, from Ms Green) under paragraph 13 of the Data Protection Act 1998. Full particulars of the claimant's financial claims appear under paragraph 13 (b) below.

12.

The Third Data Protection Claim against only the First, Third, and Fourth Defendants. Breach of the Data Protection Act 1998 and the Second and Fifth Principles under Schedule 1 thereof: a. During the period of 28th April 2000 to 23rd October 2001, a number of memoranda concerning the claimant were circulated amongst staff members at the General Medical Council, including Mr Peter Lynn, Ms Sarah Bedwell, Mr Allan Howes, and at least one unidentified Health Screener whom the GMC says was a member of the Council. The memoranda discussed the claimant’s mental state, and debated whether any cause could be found to refer her to the General Medical Council’s Health Committee. It was eventually concluded that no impairing condition could be found in the claimant, and that, as no complaint had been made against her, it would be unwise to invoke the General Medical Council’s Health Procedures against her.

b. The data pertaining to the claimant held in these memoranda was obtained for the purpose of determining whether or not the General Medical Council should take action against the claimant under that organisation’s Health Procedures. The issue is discussed at some length over a period of many months and is indisputably the sole reason for the existence of these memoranda. The purpose for which the data in the memoranda was collected had therefore clearly been served when, on the 23rd October 2001, it was concluded that no impairing condition could be found and that the Health Procedures should not be invoked.

Case No: BM312260 R Pal v General Medical Council

6

c. The fifth principle of the Data Protection Act 1998 states:

“Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

d. Furthermore, the General Medical Council’s own web site states that data collected in relation to defunct complaints is destroyed after six months. Yet the General Medical Council retains this data in the claimant’s file almost two years after the expiry of the purpose for which it was collected, and refuses to remove it despite numerous requests. This refusal to remove obsolete data is clearly in breach of the fifth principle of the Data Protection Act 1998.

e. Moreover, the second principle of the Data Protection Act 1998 specifies that:

“Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.”

f. Despite this requirement, the General Medical Council has not only retained this data for far longer than necessary, but has also continued to process the data in a manner incompatible with the purpose for which it was collected.

Specifically:

(i) the claimant says that it is not within any of the specified or lawful purposes under the second data protection principle to purport to process data once it was determined that the Health Procedures should not be invoked;

Case No: BM312260 R Pal v General Medical Council

7

(ii) further, the claimant says that the GMC cannot pray in aid the policy review as a reason for not complying with the fifth data protection principle: pending the conclusion of that review, it cannot be argued that the data are not being kept for a period longer than is necessary for the stipulated purposes. The claimant will further rely on the fact that under the 1997 policy these data should have been destroyed within 6 months, and that the draft new policy provides for a similar period.

13.

The Fourth Data Protection Claim against only the First and Fourth Defendants. Breach of the Data Protection Act 1998 and failure to comply with a request under s.10(1) and for an Order for compliance under s.10(4), and an Order for the destruction of the data under s14(1) and/or s.14(4) of the same:

a. It is clear that the General Medical Council has no intention of removing the obsolete data from the Claimant’s file (a request having being made, by the claimant, to the Defendants on 9th June and 9th July 2003) , or even of keeping that information confidential despite it being sensitive personal data as defined by Paragraph 2 of the Data Protection Act 1998. The claimant therefore seeks an order under s.10 (1) and (4) of the Data Protection Act 1998 to prevent further processing of this obsolete data, together with an order for the destruction of the said data and specifically:

(i) as regards the section 10 claim, the claimant is entitled to an order against the GMC to cease processing her personal data, since the processing of that data is causing or likely to cause substantial damage or distress to her, and that damage is or would be unwarranted;

Case No: BM312260 R Pal v General Medical Council

8

(ii) as regards the section 14(1) claim, the claimant is entitled to an order that the data be destroyed, since they contain an expression of opinion that is inaccurate, namely that the claimant is or may be suffering from a mental illness. In relation to the claim under this sub-section, the claimant is not required to plead loss and damage;

(iii) as regards the section 14(4) claim, the claimant is entitled to an order that the data be destroyed, since she has suffered damage by reason of the contravention of the data protection principles as explained above (and, in relation to her damage, as more fully explained below), and there is a substantial risk of further contravention by the Defendants.

(b) Insofar as it is necessary to prove damage in relation to the causes of action under section 14 of the DPA 1998, the claimant pleads as follows:

PARTICULARS OF LOSS AND DAMAGE

(i) the effect, taken individually or in combination with one another, of the facts and matters pleaded under paragraphs 1 and 2 above is that the claimant is portrayed as (a) a troublemaker who complains frequently (with the implication that some or all of her complaints are without foundation), and (b) at worst, mentally ill, and at best, an individual with a question-mark over her mental health (with such questionmark being impliedly endorsed by the GMC itself). The claimant's case as to the implication of the statements contained in these data is more fully set out under the defamation claim (paragraph 16 below);

Case No: BM312260 R Pal v General Medical Council

9

(ii) there is evidence that these data, or part thereof, have been 'leaked' to third parties (see paragraph 11 above);

(iii) there remains a significant risk that these data, or their gist, will be 'leaked' to third parties;

(iv) there is an even greater risk that these data may be disclosed, either formally or informally, by way of gist or otherwise, to Hospital Trusts to which the claimant would apply for permanent positions;

(v) the claimant cannot realistically apply for any such permanent positions until the said data have been destroyed;

(vi) the claimant has therefore been constrained to apply for locum staff positions and has lost the opportunity of seeking better paid permanent positions with the prospect of promotion within the NHS;

(vii) the claimant has accordingly lost the chance of achieving higher earnings, promotions and pension rights. Full particulars of the claimant's precise financial losses with be supplied once full disclosure from the relevant NHS Trusts has been obtained;

(viii) the claimant also seeks compensation for distress under

Case No: BM312260 R Pal v General Medical Council

10

section 13(2) of the DPA 1998.

HUMAN RIGHTS ACT 1998 CLAIMS:

14. Breach of Article 8 of the European Convention on Human Rights (“privacy rights”)

a. As discussed above, a number of memoranda concerning the claimant’s mental health were circulated amongst staff members at the General Medical Council between the 28th April 2000 and the 23rd October 2001. The claimed justification for this flurry of memoranda appears to have been concern that the claimant was suffering from some form of mental illness based upon the “tone” used in her correspondence with the General Medical Council in relation to a complaint she submitted in April 2000. The written word is an entirely ambiguous method of communication, open to grave errors in interpretation that stem from many sources, including the writer’s – and reader’s – cultural background and individual tastes and mannerisms. A colloquial style and wry turn of phrase, such as those often adopted by the Claimant are even more susceptible to misunderstanding, particularly where the reader is not personally familiar with the writer. Without the advantage of seeing the writer’s facial expression or hearing their tone of voice, as one would in face-to-face communication, it is almost impossible to divine the writer’s true personality through the written word alone. For the General Medical Council to take such nebulous indicators and translate them into evidence of an alleged mental illness in the writer is so grossly unrealistic as to fall within the bounds of Wednesbury unreasonableness.

Case No: BM312260 R Pal v General Medical Council

11

b. Whatever its alleged justification for undertaking this enquiry into the claimant’s mental state, the fact remains that the General Medical Council was acting ultra vires in so doing. Under The General Medical Council Health Committee (Procedure) Rules Order of Council 19871997 (1987 SI No 2174), as amended, in order for the General Medical Council’s Fitness to Practice Directorate to legally undertake any investigation into a medical practitioner’s physical or mental health, the issue must first have been referred to the President or a person appointed to act in his stead.

c. Before any such referral occurs, the issue must first have been assessed by the Registrar (Mr Finlay Scott at the time in question, or a person appointed to act in his stead). If, and only if, the Registrar considers that a question is raised as to whether the practitioner's fitness to practise may be seriously impaired by reason of his physical or mental health, the issue is then submitted to the President (or a person appointed to act in his stead) under rule 6(1), who may then cause such further inquiries to be made as he thinks fit under rule 6(3), including referring the matter to a medical screener (or, if the person appointed to act in the President's stead is the screener, to cause such further inquiries to be made himself). If it appears to the President (or to the person appointed to act in his stead) that the matter need proceed no further, then no further action need be taken. Otherwise, in accordance with rule 6(4) the President (or the person appointed to act in his stead) will direct the Registrar to write to the practitioner notifying him of the matter and, if necessary, inviting him to submit to a medical examination.

d. In the claimant's case, on two occasions Mr Peter Lynn informally sought the advice of a health screener (i.e. the person appointed to act in the President's stead) but did not pass the matter to him for formal consideration. Even if, which is not admitted, Mr Peter Lynn was

Case No: BM312260 R Pal v General Medical Council

12

empowered by the President to act as Registrar, the claimant says that he was not entitled under the rules to carry out inquiries under any power arising by implication under rule 6(1), or expressly under rule 6(3), and/or to involve a screener in such a process. e. In a memorandum written on the 5th of December 2000, the screener, whose identity is unknown to the claimant, wrote as follows to Mr Peter Lynn:

“Nevertheless, it would be hard to describe her (the Claimant) as having a paranoid illness unless one had personal or other knowledge that her claims were untrue. We don’t have, and I don’t see how we can obtain it, except that I may be able to make discrete confidential enquiries which I will do and then discuss.”

f. Unless carried out by the President, or his appointee, during a formal consideration pursuant to referral from the Registrar under rule 6(3), such “discreet enquiries” are a clear breach of Article 8 of the European Convention on Human Rights, The Right To Respect For Private and Family Life, as enacted into UK law by the Human Rights Act 1998.

g. Further or alternatively, the GMC has not complied with the requirements of rule 6(2) of the Health Procedure Rules. This provides that unless the information or complaint has been received under rule 6(1) from a person acting in a public capacity, then an affidavit or statutory declaration is required. The Registrar's appointee, Mr Lynn, did not receive the information from a person or persons acting in such a capacity, and no affidavit or statutory declaration was ever obtained.

h. The Defendants assert that the instant case is clearly caught by article 8(2), but such an assertion is not arguable unless it is established by

Case No: BM312260 R Pal v General Medical Council

13

them that the violation of the Convention right was "in accordance with the law", which it was not, for the reasons set out above.

i.

Without prejudice to the claimant's case that it is not necessary to prove financial loss in order to found a claim for statutory compensation under section 8(3) of the Human Rights Act 1998, the claim will say that she has suffered loss and damage as follows.

PARTICULARS OF LOSS AND DAMAGE

(j) See paragraph 13 (b) above.

15. Breach of Article 14 of the European Convention on Human Rights (“nondiscrimination rights”)

(a) Such energetic enquiry into the claimant’s alleged mental illness cannot be ascribed purely, or perhaps even partly, to concern for the claimant or those patients she may treat. The claimant, who has never suffered from any mental illness, is aware of many practising doctors who freely and publicly admit to suffering from a variety of such illnesses. Yet the General Medical Council has not investigated their fitness to practice. No “discreet enquiries” have been made amongst those who may have worked with these doctors, in search of evidence of a “paranoid illness.” It can be no coincidence that the claimant is an outspoken critic of the standards of patient care found in the National Health Service, and, indeed, of the General Medical Council themselves. Such persistence in seeking an impairing condition in the claimant is indicative of discrimination against the claimant, based upon her opinions, and as such is a flagrant breach of Article 14 of the European Convention on Human Rights, Prohibition of Discrimination, as enacted into UK law by the Human Rights Act 1998.

Case No: BM312260 R Pal v General Medical Council

14

(b) Despite failing to find any impairing condition that could pose any threat to either the claimant or her prospective patients, the General Medical Council have maintained a very close interest in her affairs.

(i) As described above, the General Medical Council has retained records of their enquiries into the Claimant’s mental state for far longer than is necessary. There is evidence to suggest that these records have been disclosed to at least one NHS Trust, and from there to an individual against whom the Claimant has brought a complaint before the General Medical Council.

(ii) The General Medical Council has made printed copies of the content of the Claimant’s internet web site, www.nhsexposed.com, and has retained these copies alongside the records of their investigation into her mental state. Despite explanations that this material was protected by copyright, and despite repeated requests to remove this protected material from their files, the General Medical Council only destroyed the relevant records when threatened with legal action. Even then their legal representatives made great efforts to convince the Claimant that their client was entitled to retain such records and only complied with her requirements when legal action became inevitable.

PARTICULARS OF LOSS AND DAMAGE

(c) See paragraph 13(b) above.

Case No: BM312260 R Pal v General Medical Council

15

DEFAMATION CLAIMS: 16. The memo dated 30th November 2000, Mr Peter Lynn to an unknown recipient: (a) On the 30th November 2000, in a memorandum to an unnamed recipient, Mr Peter Lynn wrote the following words defamatory of the Claimant:

“Her correspondence, particularly the documents I have flagged, certainly demonstrate that Dr Pal is extremely irrational and I think there must be some concern about this doctor having direct access to patients.”

(b) In their natural and ordinary meaning of these words meant and were understood to mean that the Claimant:

(i) was beyond doubt an extremely irrational person and hence there was concern that she was a danger to patients and should not be given direct access to them;

(ii) that at the very least she had demonstrated, from her correspondence, that she was extremely irrational and that as a minimum, she may be a threat to patients and, therefore, there was concern about her continuing to have direct access to them.

(iii) that she was someone who had demonstrated extreme irrationality so much so that she was or may be suffering from a mental illness raising concerns about her ability to practice as a doctor and of having direct access to patients.

Case No: BM312260 R Pal v General Medical Council

16

(iv) that her extreme irrationality had demonstrated that she was not fit and competent to continue to have access to patients and/or practice as a doctor.

( c ) By reason of the publication of the said words the claimant has been seriously defamed and suffered considerable hurt and embarrassment.

(d)

Unless restrained, the defendants will publish or cause to be published the same or similar libels of the claimant.

17. The memo dated 13th September 2002, Mr Peter Lynn to Mr Marshall: (a) On the 13th September 2002, in a memorandum to of Mr Neil Marshall, (Head of the First Defendant’s Screening Department) Mr Peter Lynn wrote the following defamatory words of the Claimant:

“The first point is that Dr Pal has made complaints before which went nowhere, and we did consider taking health action against her. If my memory serves me correctly, we consulted [name deleted] but decided that there wasn’t sufficient evidence to invoke the health procedures.”

(b) In their natural and ordinary and/or innuendo meaning these words meant and were understood to mean that the Claimant:

(i) had been a persistent, regular and/or troublesome maker of hopeless, frivolous or unjust complaints to the General Medical Council, to

Case No: BM312260 R Pal v General Medical Council

17

such a level that formal disciplinary proceedings about her fitness to practice, on grounds of mental illness, had been thought appropriate but there was insufficient evidence to start these proceedings.

(ii) that the nature and number of her previous complaints to the General Medical Council were such that there were serious doubts about her mental health but that there was insufficient evidence to start formal disciplinary proceedings against her to have her removed from practice.

(iii) that there were concerns about her fitness to practice because of her mental health but there was insufficient evidence to do anything about it as a formal level.

(iv) that though there was insufficient evidence to remove her there was doubt about her mental health and therefore fitness to practice as a doctor.

(v) that though it could not be proven she was or at the very least suspected being mentally ill.

Particulars of Innuendo

(vi) All the readers of this memorandum would be aware of the fitness to practice “health action” procedures and that these procedures were only invoked when the states of doctor’s mental health was so serious that he/she had to be removed from practice.

Case No: BM312260 R Pal v General Medical Council

18

AND the Claimant claims: 1. Damages under section 13 of the Data Protection Act 1998.

2. Damages under section 8 of the Human Rights Act 1998.

3. Damages for libel.

4. An injunction to restrain the Defendants from further publishing or causing to be published the same or similar libels of the claimant.

5. An Order under section 10 of the Data Protection Act 1998 requiring the GMC, its servants or agents to cease processing any of the Claimant's personal data as referred to above.

6. An Order under section 14(1) and/or (4) of the Data Protection Act 1998 requiring the GMC, its servants or agents to destroy all the said personal data.

7. A declaration that the GMC, its servants or agents, has violated the Claimant's rights under article 8 and/or 14 of the ECHR by disseminating the information and opinions contained in the memoranda referred to above.

8. A declaration that the GMC, its servants or agents, has violated the Claimant's rights under article 8 and/or 14 of the ECHR by carrying out an inquiry or investigation into her mental health.

Case No: BM312260 R Pal v General Medical Council

19

9. Interest thereon pursuant to section 35A of the Supreme Court Act 1981 as may be applicable under any of the claims above.

10. Any other Orders or declarations that his Honourable Court deems just and reasonable.

Dated this 11th day of September 2003 Re-dated this 18th day of May 2004 Re-dated this 26thh day of May 2005

STATEMENT OF TRUTH

I believe that the facts stated in these Amended Particulars of Claim are True.

Signed…………………………………………………………….Dr Rita Pal Date of Signature…………………………………………….

ROBERT JAY QC (Amendments with permission of the Court 18.05.05)

BARJINDER SAHOTA, Solicitor-Advocate(Amendments on

Case No: BM312260 R Pal v General Medical Council

)

20