News: GMC
must disclose files on Wakefield
to documentary makers
BMJ 2007;
334: 12 (6 January 2007)
Clare Dyer, legal
correspondent
The General Medical
Council has lost a High Court battle to stop
confidential documents, provided to it for the
purpose of disciplinary proceedings, being released
to the makers of a television programme.
The papers refer to
the role of the gastroenterologist Andrew Wakefield
in the controversy over the mumps, measles, and
rubella (MMR) vaccine.
Mr Justice Eady
ruled just before Christmas that the Channel 4
television company, 20-20 Productions, and Brian Deer
are entitled to see the documents in defending
themselves against a libel action by Dr Wakefield
over the November 2004 Dispatches programme
"MMR: What They Didn't Tell You," which Mr
Deer presented.
Dr Wakefield faces
GMC proceedings over his part in the controversy over
the triple vaccine, which led to a dramatic drop in
coverage of the vaccine. He led a study published in
the Lancet in 1998 (351:637-41) on
associations between the measles virus, autism, and
bowel disease. At a press conference to publicise the
research he called for single vaccines to be given
rather than the combined MMR vaccine.
His study focused on
tests carried out on 12 children with
gastrointestinal problems referred to the Royal Free
Hospital in London, where Dr Wakefield then worked.
Some of the children were in a second study, funded
by legal aid, to investigate whether parents who
claimed that their children were damaged by the MMR
vaccine had grounds for a High Court compensation
claim. The Lancet later said it would have
rejected the paper had it known of the undisclosed
conflict of interest.
Among the documents
ordered to be disclosed are 11 files of papers
released to the GMC by University College London, Dr
Wakefield's former employer. The other documents are
witness statements and exhibits provided for the
disciplinary proceedings and papers disclosed to the
GMC by the Legal Services Commission, the body that
grants legal aid.
The GMC has not yet
laid formal charges against Dr Wakefield, but his
case is expected to be heard over several weeks
starting in July 2007. The libel case is not likely
to come to trial much before the end of 2007.
Timothy Dutton QC,
for the GMC, told Mr Justice Eady that it would be
against the public interest if documents that the GMC
had promised to those providing them that they would
be used only for the disciplinary proceedings were to
be disclosed for another purpose. It could discourage
complainants and others from cooperating.
The mother of a
child involved in the research also appeared before
the judge to urge that the medical records of her
child and of other children be kept confidential.
The GMC's standard
consent forms provide an undertaking from solicitors
that disclosure will be used only for the purposes of
investigating a doctor's fitness to practise and any
disciplinary hearing that may follow. This might be
"somewhat misleading (albeit
unintentionally)," the judge said, because the
GMC could not pre-empt what a court might decide.
He said it was
undesirable that the libel defendants should be
precluded from access to relevant information-not
only for protecting their own interests and
reputations but also in "seeking to protect the
public interest in ensuring, so far as possible, that
claimants in defamation actions do not obtain
misleading or false vindication of their
reputations."
He added that it was
always open to the GMC to use its statutory powers of
compulsion to obtain documents and information if
individuals and institutions refused to cooperate.
There was no danger
that individuals' confidentiality would be breached,
because the defendants accepted that provisions must
be put in place to ensure that individuals were not
identified.
The GMC said,
"We note the decision handed down by the High
Court and are deciding what action is
necessary."
