England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Lightman)

		Royal Courts of Justice Strand London WC2 Thursday, 22nd November 2001

1. LORD JUSTICE BUXTON: This is an application for permission to appeal from a judgment of Lightman J given in judicial review proceedings on 8th August. The applicant is Mrs Rosalind Kellett, who has appeared on her own behalf before me today as she did before Lightman J. The application stems from a series of most unfortunate accidents that have occurred to Mrs Kellett and also from underlying medical problems that she has.
2. Putting the matter as briefly as possible and bearing in mind that a good deal of the factual history is contested by Mrs Kellett, the matter arose as follows. Mrs Kellett had the misfortune to suffer a car accident as long ago as December 1990. She was treated in respect of that in Southampton General Hospital. She was not satisfied with the medical treatment that she received and she went through the complaints procedure. The treatment that she had received was examined in some detail by the panel set up for that purpose by the Health Authority, and they concluded in 1996, having investigated the matter with those who had originally treated Mrs Kellett, that there had been no negligence in the treatment of her but that communication with her had not been handled as it might preferably have been addressed. Accordingly, they decided that Mrs Kellett should be referred for a further opinion and investigation, under National Health Service arrangements, to a consultant neurologist unconnected with the Health Authority. In accordance with that recommendation, Mrs Kellett was referred to Dr. Perkin at Charing Cross Hospital who saw and examined Mrs Kellett and, as I understand it, produced two reports for the Health Authority. Those have not been before the court. His conclusion was that no ground of complaint existed and, in particular, he had occasion to consider with Mrs Kellett her claim that she suffers from a condition known as Arachnoiditis, which the doctors at Southampton had not properly investigated. She says to me today that Dr. Perkin told her that that could only be finally determined by reference to MRI scans. Mrs Kellett tells me that she understood that she would be going back to Dr. Perkin for a further scan, which never happened.
3. In April 2000 (that is some two and a half years after Mrs Kellett had seen Dr. Perkin) she complained again to the respondent Health Authority that, although the referral had been made to Dr Perkin, "none of the other recommendations took place", meaning thereby that he had not in fact had, as she claimed, access to the results of her previous investigations, including tests that she had had conducted privately and outside the ambit of the Health Service; in particular, that MRI scans had not been put before Dr. Perkin.
4. That complaint was dealt with by the convenor of the Southampton and South West Hampshire Health Authority in a letter to Mrs Kellett of 16th February 2001. That is the decision of which Mrs Kellett complains. It set out that it had been decided not to hold a further independent review panel. The convenor continued in these terms:

"I believe Southampton University Hospitals NHS Trust has done everything needed to comply with the recommendations of the independent review held on 2 May 1996. Dr Perkin has confirmed that he had sufficient information, including the MRI scan report, to make a considered opinion which was expressed in his two reports."

5. The complaints that Mrs Kellett makes, as I understand it, are as follows. Firstly, she says that she does have arachnoiditis, that that can be demonstrated and therefore a mistake must have been made, both by the original doctors and by Dr. Perkin in their opinions. Secondly, Dr. Perkin was not in a position to give the opinion that he did because he did not have access to all the necessary scans, including scans that had been taken in 1992. It is certainly the case, from the documents that Mrs Kellett has put before me, that there may have been some uncertainty and misunderstanding about what scans Mrs Kellett was referring to.
6. In front of Lightman J, the case seems to have come down to, or been dealt with by that judge on the basis of, whether or not the claim that Mrs Kellett makes, that she suffers from arachnoiditis, is well-founded. The documents that the judge understood Mrs Kellett to be relying on were a patient assessment form that came into being when Mrs Kellett had a further car accident in 1998 after the investigation by Dr. Perkin, in which she told the nurse that she had arachnoiditis; and a social security benefit agency document, which appears to accept that arachnoiditis was present. The judge was not impressed by either of these documents, pointing out that they post-dated Dr. Perkin's investigation and long post dated the investigation at Southampton, of which Mrs Kellett complains.
7. Today, Mrs Kellett says that because of the misunderstanding by Burton J or by those who recorded his order when he adjourned the case to Lightman J, the judge did not understand that Mrs Kellett also relies upon a report of a Dr. Luckens, dated 18th December 1998, when she was investigated in respect of a claim for disability living allowance, in which that doctor does appear to state that she has arachnoiditis as well as sequelae from difficulties with the cervical spine. On what basis the doctor reached that conclusion we do not know, but the point in this case is not to investigate the fact of whether or not Mrs Kellett has arachnoiditis, nor even to investigate whether or not it was negligent on the part of the original doctors or Dr. Perkin to come to the conclusion that she did not have that condition when she says that she in fact has it. This court is concerned with whether there was any error of law in the decision taken by the Southampton Health Authority in February 2001 not to undertake a further investigation of this case. They took that decision on the basis of two reports from an expert consultant (neither of which I have seen, but I assume that neither of them would be helpful to Mrs Kellett's case), and a confirmation, in the light of complaints about the basis of the decision of Dr. Perkin's view, that indeed he had seen sufficient material, in his expert view, to reach the conclusion that he did.
8. In those circumstances, it seems to me entirely impossible to say that the Health Authority made any error of law in acting as they did on Dr. Perkin's opinion. As I sought to explain to Mrs Kellett, and I think she understands, it is not the function of the Court of Appeal to try to investigate whether that decision was right or wrong, or to try to investigate what material Dr. Perkin had before him. If Mrs Kellett has complaints in that respect (I am not suggesting that she does have) there might have been, though I think there are not now, other routes she might have pursued. What she cannot do is claim that in making its decision the Health Authority in any way acted unreasonably or in a way which is contrary to any element of public law. For those reasons, therefore, I do not think it appropriate to grant permission to appeal in this case. Such an appeal would be bound to fail. For it to be pursued further would only submit Mrs Kellett to further difficulty and distress which would have no result.
Order: Application dismissed.