UT (Tax & Chancery) UT-2024-000010 - [2024] UKUT 00416 (TCC)

Mr Cherry submitted that there is cogent medical evidence of there being a detrimental impact on the Applicant in respect of the investigation into her conduct and the regulatory processes she is subject to. This is evidenced further by the Applicant herself directly in her Personal Statement in support of the 25 March Application (B/21), where the Applicant states at [17]:

“This process has crushed my spirit and aggravated my depression to the point where I had had thoughts of suicide and felt so despondent that I felt I could not cope with living with all this hanging over me. Those thoughts recently reoccurred shortly before the Decision Notice was issued, and it was only with the assistance and intervention by my Counsellor [] and my doctor in increasing my dosage of my anti-depressant medication that I was able to bring myself back from maybe ending my life.”

He argued that this is cogent evidence of two critical matters. The first is that the Applicant’s depression has been aggravated historically because of the “process” of the investigation by the Authority. The second is that her mental health significantly worsened at or around the time of the Decision Notice being issued, to the point that the Applicant was considering suicide. He relied on further evidence as to the detrimental impact on the Applicant’s mental health resulting from the Authority’s investigation and findings provided by the Applicant at [18] in her Personal Statement:

“The thought of the world being told by the FCA in a Decision Notice that I am not to be trusted, and that I am thoroughly incompetent, before I have had the chance to try and clear my name in the Upper Tribunal sends me into a spiral of anxiety and despair. I have felt like an after-thought for several years while the FCA did its investigations and then, without ever mentioning it beforehand, the FCA blindsided me at the annotated warning notice phase of its investigation accusing me of lacking integrity”.

Mr Cherry submitted that this is evidence that the publication of the Decision Notice will have a detrimental impact on the mental health of the Applicant. She describes a spiral of anxiety and fear about such a prospect, having already described having suicidal thoughts about the Decision Notice itself being issued.

The Applicant describes the impact of publication further at [19] of her Personal Statement where she says: “The Decision Notice subsequently reduced the level of criticism I face, but it is still devastating to me to have the threat of the Notice being published to the world.” He argued that this is clear evidence, corroborated by the evidence from Dr [S] as to the anti-depressant medication the Applicant is prescribed, of a significant likelihood of harm making the publication of the Decision Notice unfair to the Applicant in terms set out in Reynolds.

Mr Cherry noted that the Authority is critical of a perceived lack of necessary medical evidence in support of the Privacy Applications and that it has consistently referred to a need for psychiatric evidence. Whilst it is acknowledged such evidence may be useful and probative in some cases where applications such as the present have been made, it is not mandated. The Procedure Rules do not require it, and the authorities do not specify such need. Despite this, the Applicant has made efforts to obtain a referral and that has been refused by Dr [S] as evidenced in the letters from the doctor on 19 April 2024 (B/22):

“We discussed that you have been under investigation formally and you were advised to get a formal psychiatric assessment with regards to your mental health. Unfortunately you do not fulfil the criteria for me to refer you to a psychiatrist on the NHS. If you need a formal assessment, then this will need to be done privately. You requested a letter stating the same. If there was any situation in your mental health or if you have any further enquiries, please do not hesitate to contact the surgery. Many thanks.”

He noted that the Authority is critical of the lack of reasons as to why the Applicant did not fulfil the criteria for the GP to refer her to a psychiatrist on the NHS. However he contended that such criticism is ill-founded and irrelevant; the fact is that Applicant could not obtain such evidence. In any event there is ample evidence before the court to satisfy the tests set out in the authorities and as summarised in PDHL.