Whitefield v General Medical Council [2003] IRLR 39 Privy Council

When the Human Rights Act 1998 came into force many readers had hopes of being able to use the right to respect for private and family life to protect workers from employers who imposed conditions such as random alcohol and drug testing. A recent decision by the Privy Council in Whitefield v General Medical Council is a reminder of the limits of the right to private life.

The case concerns a doctor whose fitness to practice was considered by the Health Committee of the Professional Conduct Committee of the General Medical Council, to be seriously impaired because of severe depressive illness and harmful use of alcohol. The Committee imposed a series of conditions which Dr Whitefield was required to meet in order to ensure his continued registration. He challenged a number of the conditions imposed on him. In particular, he argued that the conditions to abstain absolutely from the consumption of alcohol; to submit to random blood testing and urine tests and to attend Alcoholics Anonymous breached his right to respect for private and family life under Article 8.

Article 8 of the European Convention on Human Rights provides that:

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Dr Whitefield argued that the effect of the absolute ban on alcohol deprived him of the enjoyment of social drinking such as on family occasions. He contested that the ban could have been restricted to the consumption of alcohol for a period before a session of work and during working hours.

The Privy Council found that there was no authority to support the proposition that an absolute ban on drinking alcohol is per se an interference with the right to respect for private life under Article 8 (1).

In considering Article 8 (2) they took into account the ECHR's decision in Bruggeman and Scheuten v Federal Republic of Germany (3 EHRR 244) which found that 'the claim to respect for private life is automatically reduced to the extent that the individual himself brings his private life into contact with public life, or into close connection, with other protected interests.' As such, the Privy Council considered that Dr Whitefield's right to an unrestricted social life must give way to the wider public interest in ensuring that he does not present a risk to patients. Therefore the absolute ban on alcohol was a condition which pursued a legitimate aim, namely the protection of patients' health, which was necessary and proportionate to that aim.

The Lordships also applied this reasoning to Dr Whitefield's objection to random testing. Whilst they accepted that any medical treatment (including the taking of samples) without consent is an interference with an Article 8 (1) right they considered that random testing was lawful under Article 8 (2) in that it was necessary and proportionate.

This case is a reminder of the limits of Article 8 since the Courts will always consider whether any act infringing on an individuals right to respect for private and family life is proportionate to the protection of the rights and freedoms of others. There is a balance to be struck.