England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(Calvert-Smith J) (CO/1700/2005)

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/07/2006

LAWS LJ:

INTRODUCTORY

1. This is an appeal, brought with permission granted by the judge below, against the decision of Calvert-Smith J given in the Administrative Court on 13 December 2005 when he refused the appellant's application for judicial review of the issue of what is called an Alert Letter ("AL") by a Regional Director of Public Health for whom the respondent Secretary of State is responsible. The appellant is a medical doctor. Put at its broadest, and the question for the court will need much refinement, the case concerns the use of what may be called the AL procedure in a case where there is suspicion but not proof that a doctor has committed sexual assaults upon women patients in his care. It is convenient, before describing the facts of the particular case, to outline the nature of ALs and the measures prescribed in relation to them in Guidance issued by the Secretary of State.

ALERT LETTERS AND CIRCULAR 2002/011

2. S.17 of the National Health Service Act 1977 empowers the Secretary of State to give directions to Strategic Health Authorities (in England), Primary Care Trusts, NHS Trust and Special Health Authorities "about their exercise of any functions". One such direction, or set of directions, is contained in Health Service Circular 2002/011 issued on 1 November 2002 and entitled "The Issue of Alert Letters for Health Professional in England" ("the Circular"). I should first set out paragraphs 1 – 7 of the Circular:

"1. An alert letter is the way in which all NHS bodies are made aware of a doctor or other registered health professional whose performance or conduct could place patients or staff at serious risk. They cover situations where doctors or any other health professionals who pose a hazard to patients or staff may move from their present NHS employer to work elsewhere in a health or social care setting in any capacity, whether or not requiring registration, before their regulatory body has had the chance to consider interim suspension or other measures. Even where such measures are in place, alert letters are intended to reduce the risk of inappropriate employment in any capacity.

2. It is also a way in which all NHS bodies are made aware of a doctor or other health professional who may reasonably be considered to pose a serious potential or actual risk to patient care or staff safety because their performance or conduct seriously compromises the effective functioning of a clinical team or local primary care services (see paragraph 8).

3. Alert letters are not intended to be issued in circumstances where an individual practitioner's performance or conduct is being considered by their NHS employer. For doctors, the policy is that the advice and support of the National Clinical Assessment Authority (NCAA) should be sought by employing bodies in cases where the performance or conduct of a hospital doctor or general practitioner is giving serious cause for concern. A doctor undergoing assessment by the NCAA must give a binding undertaking not to practise in the NHS employment until the NCAA assessment is complete. An alert letter is intended to cover situations where a doctor moves on, or could move on before the assessment process is completed.

NOTE: Alert letters are solely for use in cases where an individual is considered to be a serious potential or actual risk to patients or staff. They should not be used for any other reason.

4. When an employer considers that their employee or former employee who is a health professional could place patients or staff at serious risk, they should make a request to the Regional Director of Public Health (RDPH) for the issue of an alert letter. In the case of health professionals other than doctors, the RDPH will seek advice from senior professional colleagues with responsibility for that profession (eg for nurses, the Head of Nursing at the relevant Directorate of Health and Social Care (DHSC), or for midwives, the local Supervisor of Midwives).

5. However, it will be for the RDPH to decide whether the criteria for issuing an alert letter have been met.

6. In all cases where an alert letter is issued, referral should be made to the individual's regulatory body (eg the General Medical Council) as a matter of urgency, by the initiating organisation. However, there might be very rare occasions when an alert letter may need to be issued as a matter of urgency but immediate referral may not be appropriate. This may be, for example, when investigations are ongoing to gather sufficient evidence to substantiate a referral to the regulatory body. In such cases, referral must be made at the earliest appropriate opportunity, or the alert letter withdrawn immediately it becomes clear that referral is not warranted. Consideration should also be given to the power of some regulatory bodies to place interim suspension or conditions on an individual's registration in circumstances when urgent action is required. The National Clinical Assessment Authority (NCAA) should also be notified in the case of doctors.

7. In summary, the alert letter is a measure to reduce the risk of an unsafe or poorly performing health professional practising whether in that or any other care capacity until the appropriate regulatory body has had the chance to consider what action is appropriate. In the case of doctors, an alert letter is intended to cover situations where the individual moves on before the NCAA assessment process is completed. It can also reduce the risk of individuals becoming inappropriately employed in posts not requiring registration, whether or not the regulatory body had taken action. There may be exceptional cases where the RDPH may decide that the individual remains a potential danger to patients and/or staff and therefore considers that the alert letter should remain in force. In this type of case, the RDPH may wish to consider consulting the Department's Solicitors branch."

3. The Circular includes a substantial Annex, which gives further details of the AL procedure in paragraphs cited by the judge below:

"12. Alert letters are purely factual and ensure that prospective employers are put in contact with previous employers and NHS organisations whose names might not be included on application forms. They can be issued in cases where an individual had left a job and a disciplinary issue has not been resolved. After issuing an alert letter in these circumstances, employers are expected to complete all investigations, consider the evidence and reach a judgment as to whether or not the concerns are valid.

…

18. Only RDsPH may issue alert letters. This is to reduce the number of people that can issue alert letters in order to ensure consistency of approach throughout the country.

…

21. NHS Trusts will ask the RDPH to consider issuing an alert letter in the case of any of their employees. The request should be made by a Director of the NHS Trust.

…

26. The RDPH considers the representations from the organisation and decides whether or not to issue an alert letter after consultation with senior professional colleagues with responsibility for that profession (eg for nurses, the Head of Nursing in the relevant DHSC or for midwives, the local Supervisor of Midwives).

27. The RDPH advises the requesting organisation whether or not the alert letter will be issued and the reasons for this. If an alert letter is issued the requesting organisation must also refer the case to the regulatory body as a matter of urgency. It is recognised that there may be exceptional circumstances when immediate referral might not be appropriate, for example when investigations are ongoing to gather sufficient evidence to substantiate a referral to the regulatory body. In such cases referral must be made at the earliest appropriate opportunity or the alert letter withdrawn immediately it becomes clear that referral is not warranted.

28. The alert letter will be issued by the RDPH to all NHS bodies in the region. It will ask them to contact a named officer at the originating organisation for a reference if the subject of the alert letter contacts them with a view to obtaining employment and in addition will ask Health Authorities to distribute the letter to independent health care providers in their locality. The RDPH will also send the alert letter to other RDsPH, national independent health care providers and those organisations set out in paragraphs 43-45. A model alert letter is detailed in the Annex 2. Alert letters are strictly confidential and should only be shared in an NHS body on a 'need to know' basis.

29. Once an alert letter is issued the individual concerned should be notified by the initiating organisation within 7 days (in writing to their last known home address and, where appropriate, their registered address) that the RDPH has issued an alert letter. They should be given a summary of the reasons for this action and given 21 days from the date of notification in which, if they wish to challenge the decision, to send representations in writing to the initiating organisation, who will then pass them unaltered to the RDPH for consideration.

30. Following receipt of any representations, if the RDPH decides that that the individual does not in fact pose a serious potential or actual risk to patients or staff, then the alert letter must be formally cancelled. The RDPH's decision to cancel or not must be notified to the initiating organisation within 7 working days of receipt of the representations by the RDPH. The individual must be notified of the RDPH's decision by the initiating organisation.

NOTE: Alert letters are solely for use in cases where an individual is considered to be a serious potential or actual risk to patients or staff. They should not be used for any other reason.

Monitoring the situation and withdrawal of alert letters

31. So far as is reasonably practicable, the organisation that triggers the alert letter system must ensure that it monitors the progress of any proceedings by the police, regulatory body, NCAA or Occupational Health Service and of any disciplinary proceedings, so that, should the individual be shown not to pose a risk to patients or staff, the RDPH can be notified and can consider if the alert letter should be withdrawn. Where practicable, the initiating organisation will also wish to keep track of any civil case (eg, where a patient sues a practitioner through the courts). While such a process is underway, the initiating organisation should keep the RDPH informed on a monthly basis. Once the process is completed and a decision reached, there should be no need to continue to monitor or review the existence of the alert letter. The RDPH will need to satisfy him/herself on an annual basis that existing alert letters are still relevant.

32. As part of the monitoring process, the RDPH (where appropriate as a result of representations from the initiating organisation) must ensure that the alert letter is rescinded should the concern for the safety of patients and/or staff be removed. Each case must be considered on its merits and alert letters should not remain in force any longer than necessary in terms of protecting patients or staff. The individual concerned must also be advised by the initiating organisation when the letter has been withdrawn. It must be made clear on the face of the informing letter that the decision was made by the RDPH.

33. The RDPH should maintain and keep up to date a list of all alert letters he or she has issued and where applicable the date on which they were rescinded.

34. The RDPH should retain all details relating to the alert letter for five years after it has been rescinded. The existence of a rescinded letter would form an important piece of evidence should the same individual again be considered to pose a serious potential or actual risk to patients or staff at a later date.

35. There may be occasions where an NHS employer wishes to appoint an individual who is the subject of an alert letter (after making contact with the named contact on the alert letter) or a Primary Care Trust wishes to employ or include the individual on the Medical or Supplementary list. If an NHS employer proposes to employ or include on its list an individual who is subject to an alert letter, careful thought must be given to appropriate safeguards. Any decision, one way or the other, by the prospective employer must be justified, and if in doubt, legal advice should be sought from the prospective employer's solicitors. Where the RDsPH are made aware of such a decision or proposed decision, they should consider consulting the Department's Solicitors.

Statutory regulatory bodies

36. Where an alert letter is issued, the case must be referred to the regulatory body as a matter of urgency, unless there are exceptional circumstances (see paragraph 19).

37. If the regulatory body concludes its consideration of the case in terms that allow the individual to continue in practice, either with or without conditions, the RDPH and initiating organisation should review the need to continue the alert letter. It does not automatically follow that the alert letter should be withdrawn – there may be other reasons for continuing it. If it is decided to continue with the alert letter, both the RDPH and the initiating organisation must be prepared and able to defend this decision against legal challenge."

4. It is apparent from this material (as Mr Lynch QC for the Secretary of State asserts at paragraph 5(1) of his skeleton argument) that while ALs provide potential employers with information about relevant considerations and concerns relating to doctors, or other health professionals, seeking employment, they do not purport to constitute any kind of decision or determination of the question whether the doctor should be employed, nor does the AL prevent him being employed. At the same time the likely negative effect on the mind of a potential employer is entirely obvious.
5. The terms of the Circular also demonstrate (paragraph 7; Annex paragraph 37) that the AL procedure may sometimes be deployed irrespective of any formal complaints process or prosecution, or even after such process has been concluded in the subject's favour. In addition, there is considerable emphasis on the need for monitoring procedures when an AL has gone out: Annex paragraphs 31 ff.

THE FACTS

6. The facts of the case are clearly and accurately described by the judge below, who set out lengthy extracts from relevant contemporary documents. Save for some additional citations which I shall give, I see no purpose in assembling a separate account of my own. This is what the judge said:

"2. In February 1991 Dr D came to this country to work. He was initially granted limited registration as a doctor. In the same month he started work as a Senior House Officer.

3. On 1^st and 4^th March 1991 two women patients (W & H) alleged that Dr D had indecently assaulted them in the course of treatment. Dr D denied the allegations. In April a disciplinary hearing resulted in a final warning for Dr D and a recommendation that he have a chaperone present when examining women patients. Later the same month one of the two patients (W) who had made the original complaints went to the police. Dr D was interviewed and bailed in respect of both complaints. In September 1991 another patient (P) alleged that Dr D had indecently assaulted her, on two different occasions. Dr D was charged with 4 offences of indecent assault in respect of patients W, H & P. In November 1991 following the publicity surrounding the charges a fourth woman patient (B) made an allegation of indecent assault. This assault was also said to have taken place in September 1991. Dr D was interviewed and charged in respect of that allegation.

4. At some time between charge and trial Dr D surrendered his registration as a doctor.

5. In October 1992 Dr D was tried at the Crown Court and acquitted on all five counts of indecent assault by a jury.

6. In December 1992 Dr D applied to be registered with the General Medical Council (GMC). An investigation was carried out by the GMC. In July 1994 Dr D was granted limited registration for 6 months under the sponsorship of a consultant and admonished for having failed to accede to the advice of the disciplinary hearing of April 1991 to have a chaperone present when examining women patients. Dr D resumed work within the National Health Service (NHS)."

7. It is useful, I think, to interpolate here part of the text of the GMC's letter to the appellant of 25 July 1994, setting out the results of the investigation which had been undertaken at that time:

"The Chairman [sc. of the Overseas Committee of the GMC] has asked me to explain that the investigations carried out have been thorough and that the information available to her included statements from five female patients who considered that your examination of them had been improper and inappropriate… The Chairman also had before her information relating to your appearance at Liverpool Crown Court on charges of indecent assault and your subsequent acquittal of any criminal charge, including a transcript of His Honour Judge Lynch's summing up…

Having considered all the information available to her the Chairman has concluded that, in her opinion, the standard of your professional behaviour fell short of that expected of a doctor practising in the United Kingdom. In particular, she noted that following allegations made by two of the patients which resulted in a disciplinary hearing in April, 1991 you were advised to take care to avoid similar incidents and to have a nurse chaperone in attendance when examining female patients but that you failed thereafter to follow that advice. The Chairman was also concerned to note that it appeared from some of the patients' statements that you failed to explain why you considered it necessary to undertake breast and/or vaginal examinations and that you did not seek the patients' consent before carrying out such examinations. She deplored this failure to adhere to adequate standards in respect of communication with patients.

After careful consideration, the Chairman has advised that it will not be necessary to refer to a Committee of the Council for consideration the question whether, in the light of your behaviour, any question arises as to your character for the purposes of registration under the Medical Act 1983. The Chairman has however asked me to stress that if the Council were to receive further information of similar conduct on your part you should not assume that you will again be treated so leniently."

8. Calvert-Smith J's narrative continues:

"7. In 1997 he obtained full registration from the GMC. In 1999 he was working in a hospital within the North West Region of the NHS.

8. In July 1999 two further allegations of indecent assault were made by two women patients on different occasions. Dr D was suspended and his contract was not renewed when it expired. An AL was issued about which no complaint was made. In December 1999 the Crown Prosecution Service (CPS) advised the police that there was insufficient evidence to afford a realistic prospect of conviction and Dr D was informed that he would not be prosecuted in respect of the latest allegations. The hospital trust had referred the case to the GMC who then proceeded to consider it in July 2002. At the close of the prosecution case the Professional Conduct Committee ruled that there was no case to answer in respect of one of the complaints and recused itself from continuing to hear the second complaint. In March 2003 solicitors acting for the GMC advised that they did not wish to proceed with the second complaint and the Notice of Inquiry was cancelled. The AL was not cancelled and remained in force. Dr D did not know this.

9. In October 2004 Dr D became aware of the existence of the AL and took steps to have it cancelled. The Medical Director of the relevant NHS Trust was not happy and on 1^st November 2004 he wrote to the North West Regional Director for Public Heath (RDPH), Professor Ashton as follows:

'Following two serious complaints of assault against the above doctor, I requested you to issue an alert notice in 1999. Dr D was employed here as a locum SHO in Accident & Emergency. Both incidents, separated by four weeks, involved psychologically vulnerable young women. We terminated our contract, informed the GMC and handed investigations to the police, who later informed me that similar accusations had been brought against Dr D in a previous employment but had been dropped for lack of reliable evidence.

It has only recently come to my attention that although the police pursued their investigations, the Crown Prosecution Service subsequently decided they had insufficient evidence to secure a conviction and the GMC likewise dropped the case in 2003. Neither the CPS nor the GMC informed this Trust of their decisions.

As an employer with responsibility for the safety of patients, and in particular for those who are especially vulnerable, I feel aggrieved I was not informed of the first case by the GMC. I realise that he had not been found guilty, but a plain statement of the facts that there had been an investigation would have helped to prevent the third accusation. As there still is no accepted proof of guilt, I now find myself in the position of having to ask you to withdraw the alert notice, which I do with reluctance.

The withdrawal of the alert notice will remove the only warning to future employers that this doctor has had (at least) three accusations of the same nature made against him: statistically useful information. I hope you will be able to use my dilemma for further discussions within the Department of Health and that some solution might be found.'

10. (In fact the Director was in error. He had himself informed Professor Ashton by letter on 17^th December 1999 that the CPS had decided to not to prosecute Dr D. At that date however the GMC proceedings were of course still live.)

11. On 5^th November 2004 the Trust wrote to solicitors for the claimant as follows:

'With reference to your letter dated 15 October 2004, I can confirm that I have today written to Professor Ashton, Director of Public Health at the North West office of the Department of Health, to ask him to withdraw the alert notice issued in 1999. I can also confirm that neither the GMC nor the Crown Prosecution Service had informed this Trust that charges against Dr D had been dropped.'

Dr D was informed, as were all relevant potential future employers of Dr D.

12. However, the matter did not end there. On 9^th December 2004 the Medical Director wrote to Professor Ashton:

'Further to my letter to you dated 1^st November 2004, concerning the above doctor, I still have serious misgiving about the withdrawal of the alert letter. I realise that the Crown Prosecution Service and the General Medical Council have decided not to proceed with any action against him for the lack of reliable evidence.

I acknowledge that paragraph 7 of HSC2002/011 and paragraph 1 of annex 1 to that circular suggest that an alert letter should normally be withdrawn when the regulatory body/police have determined to take no further action. However, paragraphs 7 and 32 within the annex appear to allow for alert letters to be retained in appropriate cases following such determination. I now believe this is one such case.

If a man who wishes to perpetrate sexual assaults on young women is put into a position where he can select those whose clinical condition automatically makes them unreliable witnesses, he will never be successfully prosecuted. Potential future employers checking with the GMC will see no indication of the previous history. I understand that the issuing of an alert letter is a neutral act and it could give a potential employer the opportunity of knowing that concerns have been raised as well as the fact that evidence was considered weak. They would then be in a position to make up their own minds whether he might be suitable for a particular post. On these grounds I would ask you to reinstate the alert notice at the earliest opportunity.'

13. On 20^th December Professor Ashton issued an AL to the same recipients of the earlier letter cancelling the previous AL. It reads in part:

'The above named person was employed as a locum SHO in A&E medicine at …Trust.

Should the above named person apply to you for a permanent position or locum work or work in any capacity you are advised to contact (the medical director at the trust).'

14. A telephone number was supplied for potential enquirers.

15. On 22^nd December Professor Ashton wrote to the medical director:

'I would like to thank you for your letter detailing your continued concerns about Dr D following the cancellation of the Alert Letter on 5 November 2004.

Due to the unusual circumstances of this case I have sought legal advice prior to making my decision. As a result of this advice I have decided to again issue the Alert Letter for this Doctor.

I would like to take this opportunity to remind you of the obligations which the issuing of the Alert Letter places upon you. You should:

1. Inform Dr D of the decision to issue the Alert Letter.

2. Ensure that Dr D gets a copy of the Alert Letter. In the absence of a known current address for the person concerned, you should write under confidential cover to the person's address as registered with their regulatory body.

3. Discuss the significance of the Alert Letter with Dr D and provide a summary of the reasons for this action.

4. Advise Dr D that he now has the right to appeal against the decision to issue this alert letter. Please explain this process to him and the timescales involved. I would advise you to state an actual date for the deadline to avoid any misunderstandings (rather than '21 days').

5. Forward any appeal received to this office unaltered as soon as possible, together with any comments you wish to make.

6. Contact my office immediately in writing if you form the view that the Alert Letter needs to be cancelled.'

16. On 12^th January 2005 Dr D was informed of the decision by letter from the Medical Director.

'I write to notify you that the Regional Director of Public Health, North West Public Health Group, had decided to again issue an Alert Letter with regard to yourself (copy attached). If you wish to discuss the significance of the Alert Letter or the reasons for this action, please contact me at the above address.

You have the right to appeal against the decision to issue this alert letter. If you wish to do so, you should provide written representation setting out why you are challenging the decision to me before 4^th February 2005. I will then forward your correspondence to the Regional Director of Public Health, Professor John Ashton.'

17. On 13^th January Dr D's solicitors wrote to Professor Ashton and to the Medical Director, their client having only been notified that day of the new AL. They asked, reasonably enough, for reasons in writing for the new decision before submitting their representations.

18. On 14^th January 2005 the Trust sent a document entitled "Summary of Concerns" and asked for representations by 14^th February 2005. This read as follows:

The Crown Prosecution Service and the General Medical Council have made decisions not to proceed with any action against Dr D.

Paragraph 7 of HSC2002/0111 and paragraph 1 of annex 1 to the circular suggest that an alert letter should normally be withdrawn when the regulatory body/police have determined to take no further action.

However, paragraph 7 within the annex appears to allow for alert letters to be retained in appropriate cases following such determination. This may be one such case.

It is understood that the allegations against this doctor were of a criminal nature and related to sexual offences against female patients. The allegations appear to have related to vulnerable patients who where mentally ill or incapacitated. It is understood that, subsequently, a view was taken that such patients were not fit to give evidence within the context of any criminal law prosecution. However, in view of the predatory (sic) nature of the allegations against the doctor this may be one of the exceptional cases falling within paragraph 7 to the annex where the Regional Director for Public Health might conclude that the doctor may be a potential danger to other patients to the extent that an alert letter should remain in force notwithstanding that the doctor had been convicted of no offence.

Potential future employees (sic) checking the GMC status will have no indication of these concerns which exist as a result of previous history.

The issuing of an alert letter is a neutral act and it gives a potential employer the opportunity of understanding that concerns have been raised even though there has been no formal action taken by the GMC or CPS.

Employers would then be in a position to determine whether Dr D might be suitable for the particular post for which he is being considered.

On the basis of the above, Professor J Ashton was requested to issue an alert letter by the Medical Director.

19. On 3^rd February Dr D's solicitors put in detailed reasons, with enclosures principally concerned with the 1999 allegations, in an attempt to persuade the Regional Director to cancel the AL."

This letter of 3 February 2005 from the solicitors in fact described the 1999 allegations in great detail, and also the course of the proceedings before the Professional Conduct Committee of the GMC which related to those allegations. It included extensive submissions about the history of the ALs, attached a series of primary documents including statements from the 1999 complainants, and made a series of detailed and substantial points to support the argument that the issue of the second AL on the same facts as the first was "unreasonable, irrational, disproportionate, and [violated] our client's human rights".

9. The judge's narrative continues:

"On 15^th February 2005, the agreed date between the parties for time to run for the purposes of issuing proceedings for Judicial Review, Professor Ashton replied as follows:

'Thank you for forwarding the appeal submitted by Hempsons on behalf of Dr D [sc. the 3 February letter]. In line with the guidance HSC 2002/001, I have considered the appeal submitted by yourselves on behalf of Dr D and have decided to maintain the Alert Letter. This decision was given to the Trust yesterday with a further letter sent today clarifying in more detail, the reasons for this decision. In line with aforementioned guidance, the NHS Trust, as the initiating organisation, should also formally notify you of this decision.

In making this decision I have considered all the evidence available to me which includes five allegations made against Dr D by four patients… in 1991. These allegations appear to be of a similar nature to those made by the two patients at the Trust some years later.

If it is the case that Dr D has faced 7 allegations from 6 wholly unrelated patients there would be a significant risk of liability on the part of the Health Service if no Alert were in place. I also fully appreciate the seriousness for Dr D of having an Alert Letter in place. I therefore concluded that the Alert Letter should remain in place but that further investigations will now take place to ensure that all the facts are fully established.

There is to be a fixed time frame for these investigations to take place of approximately three months, with a view to producing a final decision for Dr D on the 23^rd May 2005. In any case, every effort will be made to ensure that the matter is dealt with in good time and if it becomes apparent from the information submitted that the Alert Letter should be withdrawn before this date I will do so immediately.

Please accept this letter as a formal invitation for Dr D to fully participate in the investigation and as such I invite Dr D to submit any comments he wishes to make at this time in relation to the allegations made whilst working at… or at the Trust. I would be grateful if this information could be forwarded to this office by Monday 14^th March.

In the meantime I have stressed the importance to the Trust (as the contact point stipulated in the current Alert Letter), that it is to be made clear to any potential employer who contacts them that Dr D had not been found guilty of any misconduct whether by criminal courts or the GMC.

If you feel there is any further information that would be pertinent to this investigation I would ask that you include this in your submission.

Should you wish to discuss anything mentioned in this letter, please contact Dr Gary Cook, Deputy Regional Director of Public Health in the first instance. His contact details are at the top of this letter.'

20. There followed further correspondence in which Dr D's solicitors put in further representations concerning the 1991 matters. The opportunity to take part in a further investigation was not accepted. The representations were unsuccessful. The Claim in these proceedings was issued on 19^th March 2005."

10. Mr Lynch QC for the respondent submits that further investigations were indeed carried out, as the RDPH had promised in his letter of 15 February 2005. Enquiries were made about the precise medical condition of the 1991 complainants, and a summary of their complaints was obtained. As I have said the 1999 complaints had been described in great detail in the letter from the appellant's solicitors of 3 February 2005. The solicitors' further representations included a letter of 16 March 2005 which was no less substantial, and met with an equally substantial reply dated 14 April 2005.

A HISTORY OF ERRORS

11. The judicial review challenge is on its face directed only to the second AL, issued on 20 December 2004. The first AL was no more than historic, having been cancelled on 5 November 2004. But I should note, if only as part of the history, that there was what may at least be termed a procedural lapse in relation to the first AL: it was not withdrawn when in March 2003 the GMC solicitors advised that they did not propose to proceed with the second complaint and cancelled the Notice of Inquiry. The AL remained in being, for some time without the appellant's knowledge, until as I have said 5 November 2004 and the reason given for its not being put an end to earlier was in part erroneous.
12. There were also, as the judge found, errors relating to the second AL. The Trust did not notify the appellant of the issue of the AL within seven days as required by paragraph 29 of the Annex to the Circular. When he was notified, the notice was not accompanied by a statement of the reasons. The document eventually provided on 14 January 2005, headed "Summary of Concerns", contained mistakes. It was wrongly stated at the first bullet point that the CPS and the GMC had decided not to proceed against the appellant; in fact the CPS had prosecuted him in 1991/2, and the GMC had taken disciplinary proceedings in 1994 and 1999. The third bullet point referred to the retention of an AL whereas what in fact had happened was that a new one had been issued. The fourth suggested that all the female complainants had been mentally incapacitated, but the true position was not clear as regards two of them. Miss Foster QC for the appellant also criticises the statement in the fourth bullet point that "a view was taken that such patients were not fit to give evidence"; both the 1999 complainants gave evidence to the GMC. The sixth bullet point referred to the issue of an AL as a "neutral act": in Ex p. Dr X (transcript CO/3584/1999) Moses J as he then was had disapproved the use of that phrase, emphasising, as is plainly the fact, that an AL can be "gravely prejudicial to a practitioner seeking employment". In addition Miss Foster complains of a failure to invite representations before the issue of the second AL on 20 December 2004.

THE QUESTION IN THE CASE

13. The history of errors in what may be called the administration of these ALs, while some of the mistakes are less significant than others, does no credit to those responsible for it. Given the importance of the matter for the appellant, I have been troubled by the carelessness which the errors betray. But it seems to me that the real question in the case is whether the decision contained in the letter of 15 February 2005 to maintain the second AL was lawful or not. It is by force of that decision that the AL remains in being. There is no claim for damages for spent or past mistakes (I do not suggest that there could be). None of the past mistakes can in my judgment undermine the February 2005 decision if it is otherwise lawful. The closest is the failure to invite representations before issuing the second AL on 20 December 2004. However assuming, without deciding, that in the circumstances there was at that stage a duty to invite representations, the want of its performance cannot undercut the February 2005 decision. As the narrative shows, the appellant's solicitors made full representations on 3 February 2005. These were I think conscientiously dealt with, as were the later representations of 16 March 2005, although by the time the reply of 14 April 2005 was sent these judicial review proceedings had been issued in the High Court.
14. I should refer also to the fact (as I accept it was) that no fresh events had happened after the first AL was cancelled which might go to justify the issue of a second AL. As the history shows, there was a change of mind by the Medical Director: see his letters to the RDPH of 1 November and 9 December 2004. The RDPH issued the second AL in response to the second of these letters. It seems very stark, to say the least, that the appellant, having been told in November that the first AL had been cancelled, should in December be faced with the issue of a second and on no new evidence whatsoever. And it is plain that this aspect of the matter much exercised the appellant's solicitors in formulating their detailed representations. Miss Foster complains of it in her skeleton argument which refers (paragraph 17(i)) to "the issue of a new letter… without any change of circumstances whatsoever – and thus, logically without any evidential basis".
15. However I am driven to conclude (with gritted teeth) that this circumstance no more avails the appellant than does the history of errors. The cancellation of the first AL did not give rise to anything in the nature of an estoppel and no argument is advanced to the effect that the appellant enjoyed a legitimate expectation that no fresh AL would be issued without new evidence. Miss Foster did not, as I understood her, persist in a submission that the second AL was unsupported by any evidence. Had she done so, the submission would plainly have been bad. The evidence, or supporting material, consisted (as it was put in the decision letter of 15 February 2005) in "7 [similar] allegations from 6 wholly unrelated patients". Whether that material sufficed in the circumstances to justify the issue, or rather the maintenance, of the second AL seems to me to be the whole question. The question goes to the legality of the February 2005 decision which thus, in my judgment, stands or falls on its own merits.

THE APPELLANT'S GENERAL CASE

16. At the outset of her submissions for the appellant Miss Foster articulated two propositions as follows. (1) It is unlawful to issue an AL in respect of a doctor's conduct where that conduct (a) has been considered by a relevant disciplinary or other body (such as, she would say, the Crown Court) and no adverse finding has been made, and (b) there is no evidence that anything done by the doctor has impaired or thwarted the capacity of such bodies to execute their functions in relation to the doctor's conduct. (2) If that is wrong, the issue (and, she must say, the maintenance) of the second AL was so vitiated by errors by the decision-makers as to justify its being quashed on unfairness grounds.
17. For reasons which in essence I have already given there is in my judgment nothing in the second proposition. I think Miss Foster was disposed to accept that the case turns on the legality of the decision of 15 February 2005. However the arguments she sought to maintain did not exclusively lie within the compass of her over-arching first proposition. Thus (a) she criticised the want of particularity, at the time the second AL was issued, in the RDPH's knowledge of the 1991 complaints: it was, she said, only known that complaints had been made and acquittals followed. (b) She advanced a rather more substantial argument based on the terms of the Circular. This was to the effect that the issue of an AL in circumstances such as prevailed here in 2004/2005 was repugnant to the purpose of ALs as it was ordained by the Circular. The policy in the Circular was that ALs should supplement and be consistent with the processes of the professional regulatory bodies and (no doubt) the criminal law, and not run counter to them. In essence, as is shown in particular by the first paragraph of the Circular, the AL is intended as an emergency measure, putting in place what may be called a provisional warning until the regulatory process has done its work. Where therefore an AL is issued after that work is not only finished but has resulted in an acquittal, it is against the grain of the Circular and, indeed, inconsistent with it.
18. I take these arguments to be free-standing, not intended to fall within either of Miss Foster's two opening propositions, though their classification in such terms is, no doubt, of no importance. I would reject them both. As regards the first – want of particularity – it is plain that to the knowledge of the RDPH all the allegations were of a sexual nature and had been made by patients who were in the care of the appellant at the material times. The RDPH proceeded on the basis (see the 15 February letter) that "[t]hese allegations appear to be of a similar nature to those made by the two patients at the Trust some years later", and so far as it goes that is an uncontentious fact. Miss Foster's real case is not want of particularity, but that the AL was issued on the faith of suspicion and not proof. That engages her first proposition, to which I will come directly.
19. The second of these free-standing arguments – that the issue of the AL was inconsistent with the scheme of the Circular – appears to be of a kind well familiar to public lawyers, namely that the Secretary of State (or his delegate) has acted inconsistently with his own policy and given no reasons for doing so. Where such a complaint is made out, other things being equal the court may well grant appropriate relief, essentially on legitimate expectation grounds. But it does not run here. The issue of the second AL is consistent with the terms of paragraph 7 of the Circular and 37 of the Annex.
20. Accordingly, in my judgment, the legality or otherwise of the February 2005 decision depends upon more strategic considerations. Miss Foster says these are stacked in her favour, by reason of the force of her first proposition. I repeat it for convenience: it is unlawful to issue an AL in respect of a doctor's conduct where that conduct (a) has been considered by a relevant disciplinary or other body (such as, Miss Foster would say, the Crown Court) and no adverse finding has been made, and (b) there is no evidence that anything done by the doctor has impaired or thwarted the capacity of such bodies to execute their functions in relation to the doctor's conduct. Miss Foster includes (b) recognising that there might be a case where the doctor has himself acted so as to subvert or frustrate the relevant public body's process. Thus he might put himself beyond the reach of its jurisdiction or, I suppose, suborn or threaten witnesses. Nothing of the kind has happened here. Indeed Miss Foster is at pains to emphasise that the appellant has done all he can to have himself exonerated. The case is about the first limb of Miss Foster's proposition.
21. Miss Foster's core submission that it is unlawful to issue an AL dealing with suspected misconduct by a doctor where he has been acquitted in the Crown Court of relevant criminal charges, and in the GMC of relevant disciplinary offences, is, taken on its own, assertion and not argument. In order to support it, she submitted that it is shown on authority that the disclosure of "intimate personal data" (which must include, for Miss Foster's purpose, accusations of sexual crime) in the context of public sector employment is not automatic or unconstrained; and where the data are "of the most tenuous kind" – that is, as I understood her, allegations without proof – the circumstances where such disclosure will be permitted are drawn very narrowly. She said they are confined to cases concerning children and those who are "statutorily vulnerable" such as persons looked after in care homes.
22. The notion that disclosure to potential employers of unproved allegations is limited to two classes of case, where (a) children or (b) "statutorily vulnerable" persons may be at risk, is surely to propose a rule where what is needed is a principle. But in any case the reasoning in the authorities is not so limited. At this stage I will just give two short extracts. In Ex parte AB [1999] QB 396, which concerned disclosure by the police to a caravan site owner of material relating to the appellants' previous convictions for sexual offences against children, Lord Woolf MR as he then was reported the argument of counsel, with whose "general approach" the court agreed (427F-G, 428A):

"In determining what should be done the overriding priority must remain to protect the public, particularly children and other vulnerable people."

As I have said that was a case concerning convictions and not mere suspicions. But in R(X) v Chief Constable West Midlands [2005] 1 WLR 65, discussing s.115 of the Police Act 1997, Lord Woolf CJ observed (paragraph 37):

"This [sc. disclosure of relevant information absent good reason to the contrary] was obviously required by Parliament because it was important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true."

23. These dicta are in general terms. "[C]hildren and vulnerable adults" means all vulnerable persons. There is so far as I know no authority for Miss Foster's proposition. And it would be surprising if there were. If the law contemplates the disclosure of allegations for the protection of vulnerable persons in some circumstances, as Miss Foster accepts it does, there is no rational warrant for the process being confined to cases concerning children and the "statutorily vulnerable" absent an over-arching provision to that effect given by Act of Parliament.

THE SEARCH FOR PRINCIPLE

24. Where then is the principle, or principles, by which to test Miss Foster's general case, encapsulated in her first proposition? I find it convenient to look first in the field of domestic law, without regard at this stage to the European Convention on Human Rights ("ECHR") or our obligations under the Human Rights Act 1998. At the outset it is to be noted that the issue of the AL is no affront to the appellant's private law rights. It was not defamatory. The appellant's acquittal was made clear in the letter. Even if the letter could be shown to be prima facie defamatory, in the absence of malice I should have thought there would be a plain defence of qualified privilege. So a notional private employer in a position analogous to that of the RDPH here could issue an "AL" to other prospective private employers. Absent defamation there would be no question of any legal sanction. Nor, plainly, would the private employer be constrained by any public law rule. But the RDPH is the alter ego of the Secretary of State. What public law rule, if any, constrains him?
25. That he is constrained is beyond doubt. No appeal to the books is now required (though with respect the discussion by Hale LJ as she then was in R v Secretary of State ex parte C [2000] HRLR 400 repays attention) for the proposition that a public authority has no unfettered discretion. Thus it is elementary that a public authority such as the RDPH owes a duty not to act capriciously, arbitrarily or maliciously. This was the basis of the Wednesbury rule ([1948] 1 KB 223). It was expressed in terms of reasonableness – a decision is unlawful if it is one which no reasonable public decision-maker could have arrived at. In some contexts this rule, as traditionally formulated, remains applicable and important. That is often the case, for example, where there is a review (or an appeal on law only) of a fact-finding process by a lower court or tribunal. The reviewing court will ask, Was there evidence on which the lower court could find as it did? But in this case the judicial review is not about the quality of a fact-finding process. Rather it goes to the legality of a discretionary act which is "gravely prejudicial" (as Moses J put it in Ex p. Dr X) to the person it is aimed at, but is sought to be justified in the public interest: the public interest inherent in the protection of patients in a doctor's care. Is the act's legality to be tested only by reference to the Wednesbury rule?
26. If the rule were to be regarded simply as a monolithic criterion of reasonableness or rationality, I should have thought, unassisted by authority, that the answer to that was No. It is now surely axiomatic that the more serious a public authority's interference with an individual's interests, the more substantial will be the justification which the court will require if the interference is to be permitted.
27. The learning, I think, reflects that position. I have found with respect that Ex parte AB, to which I have already referred, is the most helpful starting-point. The appellants, who were husband and wife, had served long sentences of imprisonment for sexual offences against children. When they were released, they had to move from place to place for fear of reprisals. At length they went to live at a caravan site. After much consideration and various meetings the police informed the site owner of material (which had appeared in the press) relating to their convictions. Their application for judicial review was dismissed by the Divisional Court. Their appeal was dismissed in this court. Giving the judgment of the court Lord Woolf MR said (428B):

"Each case must be judged on its own facts. However, in doing this, it must be remembered that the decision to which the police have to come as to whether or not to disclose the identity of paedophiles to members of the public, is a highly sensitive one. Disclosure should only be made when there is a pressing need for that disclosure. Before reaching their decision as to whether to disclose the police require as much information as can reasonably practicably be obtained in the circumstances."

The ECHR had not by that time been incorporated into domestic law although, as the court noted (428G), the parties were agreed that "the actions of the [police] had to be judged against the background of the requirements of article 8". And the expression "pressing need" reflects language often deployed in the Strasbourg court. However it is plain that the court's conclusion which I have cited states the common law of England. In Re V, Re L [1999] 1 FLR 267 Butler-Sloss LJ as she then was stated (273H):

"Although the facts in the [AB] case are entirely different from those in the present appeals, the caution urged by the Master of the Rolls that 'disclosure should only be made when there is a pressing need' is of general application…"

28. In Ex parte LM [2000] 1 FLR 612 Dyson J, as he then was, acknowledged that the court's conclusion in AB was one of municipal law. Unlike AB, LM was a case of no more than suspicion or allegation. The applicant owned a bus company whose contract with the local education authority for the provision of school bus services was terminated after the disclosure by the police and the social services department of a past investigation into an allegation of indecent assault on the applicant's daughter and of an earlier allegation of abuse when he had been employed by social services. The applicant had no criminal convictions and had never been cautioned or bound over; clearly there is some resemblance between that case and this. Dyson J had to deal with an argument to the effect that the requirement for a "pressing need" was not in point because the disclosure of the allegations "would not interfere with [the applicant's] private life at all" (p. 620). That was rejected. Dyson J proceeded to cite from the passage in Lord Woolf's judgment in AB which I have set out, including the reference to "pressing need", and observed (p. 620) that this "conclusion was reached without regard to Art 8 of the Convention". He went on to say (p. 622):

"In my view, the guiding principles for the exercise of the power to disclose in the present case are those enunciated in [AB]. Each of the respondent authorities had to consider the case on its own facts. A blanket approach was impermissible. Having regard to the sensitivity of the issues raised by the allegations of sexual impropriety made against LM, disclosure should only be made if there is a 'pressing need'. Disclosure should be the exception, and not the rule. That is because the consequences of disclosure of such information for the subject of the allegations can be very damaging indeed."

Dyson J proceeded to identify three specific factors which in his view would have to be considered by a public body (he referred to police and the local authority) contemplating disclosure to a third party of "allegations of child sex abuse" – but, no doubt, they are not specific to that kind of case:

"(i) Its [viz. the discloser's] own belief as to the truth of the allegation. The greater the conviction that the allegation is true, the more pressing the need for disclosure…

(ii) The interest of the third party in obtaining the information. The more intense the legitimacy of the interest in the third party in having the information, the more pressing the need to disclose is likely to be…

(iii) The degree of risk posed by the person if disclosure is not made…"

I would not, with respect, formulate the first of these considerations quite as Dyson J did. The strength of the discloser's subjective belief in the allegation is really neither here nor there. He may believe on little evidence, or disbelieve on much. But I would certainly accept that the objective force of the evidence which supports the allegation is an important aspect. The third consideration is as a matter of logic difficult to apply without forming a view as to how likely it is that the allegations are true; but in some cases, including it may be this one, that will be a problematic exercise.

29. However Dyson J was of course not proposing a mechanistic approach, and the three factors to which he refers are not to be understood as if he were. The test for disclosure is "pressing need". I doubt whether further analysis would be particularly helpful. It must I think be obvious that the ascertainment of such a pressing need will require a balance to be struck between the interests of the person who is the subject of the allegations and the interests of the party to whom disclosure is proposed to be made (or those for whom that party is responsible, such as a health provider's patients); and a clear conclusion that in the circumstances the latter must prevail over the former. The nature and strength of the allegations and the vulnerability of the class of persons to be protected are likely to be at the centre of the decision-maker's consideration.
30. Turner J applied a "pressing need" approach in R(A) v Chief Constable of C [2001] 1 WLR 461, a case concerned with disclosure of unproved allegations between one police authority and another. Both AB and LM were considered in R(X) v Chief Constable of West Midlands [2005] 1 WLR 65, in which Lord Woolf CJ stated (paragraph 36) that what had been said in those cases indicated "a general approach", though the approach could not be applied without qualification in R(X) itself because there was in the relevant circumstances in effect a statutory duty of disclosure.

THE TEST IN DOMESTIC LAW

31. Mr Lynch QC accepts that pressing need is the test to be applied in this case. I agree. The importance of the decision to the appellant demands nothing less. I think it is significant to notice that this result is given by the common law, for it illustrates the distance the law has travelled since the field of executive discretion was dominated by the Wednesbury bludgeon. It is an odyssey which owes much to the ECHR as a source of inspiration, but its outcome does not depend upon the application of any article of the Convention. I shall have a little more to say about the ECHR shortly.
32. Mr Lynch adds that the court should accord a "margin of appreciation" to the decision-maker, the RDPH. This is not an occasion on which to prolong the debate about judicial "deference". The court will no doubt respect the fact that the RDPH, as the first decision-maker, also carries the first responsibility for the decision; but the case betrays no particular reason why the court's role should be advisedly restrained or remote, and Mr Lynch does not submit that it does.

THE ECHR

33. In light of what I have said about the common law, I hope I will be forgiven if I say little more about the ECHR.
34. Miss Foster was at pains to emphasise the force of the protection guaranteed for private and family life by ECHR Article 8. She elaborated the submission in more detail in her skeleton argument, where some reliance is also placed on Article 1 Protocol 1 (property rights) and Article 6(2) (the presumption of innocence). Article 1 Protocol 1 can have no application: it affords no right to acquire property (such as the proceeds of employment) not already in possession, at least unless it is yoked with Article 14 (non-discrimination). Nor can Article 6(2): there is no complaint here of anything done in the course of criminal or quasi-criminal proceedings, or sufficiently closely related to such proceedings. In this context Miss Foster in her reply especially relied on the Strasbourg court's decision in Hammern (Applicn. 30287/96, judgment 11 February 2003). But that case concerned a claim for compensation for pre-trial detention where in the result the claimant was acquitted of the charges against him; Mullen [2005] 1 AC 1 was likewise concerned with a compensation claim. One can see that an acquittal (or successful appeal against conviction) may raise acute questions about the presumption of innocence in the context of such a claim. But in my judgment that does not have anything to teach us in this present case.
35. I turn briefly to Article 8. "Private life" within the article's meaning may include "activities of a professional or business nature": Niemitz (1992) EHRR 97 paragraph 29, PG & GH (Applicn. 44787/98, judgment 25 September 2001) paragraph 56. In fact Miss Foster submitted that this was only one mode of Article 8's application to the case; the other, she said, was the protection offered in any event by Article 8 against the disclosure of intimate matters. I will assume that, one way or the other, the issue of the second AL constituted an interference with the appellant's private life within the meaning of Article 8(1). In that case the question is whether the interference was "necessary in a democratic society" within Article 8(2), that is to say (on long-established authority on the meaning of that expression) proportionate to a legitimate aim.
36. The protection of patients against a risk of sexual assault by a doctor having care of them is obviously a legitimate aim. Whether the issue of the AL was in the circumstances a proportionate means of the aim's fulfilment is, in my judgment, the same question as that arising in domestic law: was there a pressing need for the disclosure? The ECHR offers no more, and no less, protection for the rights of all the relevant parties than does the common law. We should regard that as nowadays unsurprising. We are – have for some time been – developing an English jurisprudence of human rights, taking account of the Strasbourg decisions (as s.2 of the Human Rights Act 1998 now enjoins us to do). We may expect the Strasbourg court, in accordance with its own case-law, to accord a "margin of appreciation" to the process of that development.

IS THE "PRESSING NEED" TEST MET HERE?

37. There was some disagreement between the parties as to how rare it is to find so many similar but independent allegations against an individual, with none of them proved. I do not think the numbers assist us in applying the pressing need test. The possibility that the appellant represents a danger to women in his care, possibly disturbed women in particular, is plainly more than fanciful. I think it inescapable that that is a powerful factor going to demonstrate a pressing need.
38. Miss Foster advanced a particular submission, that in judging the effect of multiple independent accusations we should bear in mind the possibility that the evidence of complainants of whose accusations a defendant has been acquitted may, at least in some circumstances, be admitted against him at a later trial as proof of similar facts: R v Z [2000] 2 AC 483. Miss Foster's intention was to show that these anxieties may be well catered for within the criminal justice system. This is a bad argument. It contains a hidden premise: that given this rule of evidence, there is no case where unproved allegations of sexual misconduct create a pressing need for their disclosure, for they can always or generally be admitted in some final or further trial which will determine the existence or otherwise of the risk. The premise is wholly unjustified.
39. I am inclined to accept Mr Lynch's submission that if the RDPH was to take any action for the protection of patients in light of the events which had happened, the issue of the AL was the least that could be done: at any rate given the fact that it was made entirely clear that anyone making an inquiry as a result of the AL should be told that no findings of sexual assault had ever been made against the appellant.
40. In all the circumstances, I can find nothing unlawful in the maintenance of the second AL by the letter of 15 February 2005. I would dismiss the appeal.

POSTSCRIPT

41. I have already expressed my unease at the carelessness betrayed by the historic errors made by the authorities in the conduct of this affair, and also at the issue of a second AL on no more evidence than was available to justify the first. Those concerns only serve to emphasise the importance of what must anyway be of the liveliest interest to the RDPH, namely the obligation to monitor the case. The Annex to the Circular imposes a positive duty in that regard (paragraphs 31 ff). This is a duty that must be amply fulfilled. There should be regular reviews at relatively short intervals, certainly not more than six months, and upon each review substantive consideration must be given to the question whether the AL needs to be maintained. The RDPH must have, or get, up-to-date information about the appellant's circumstances. To the extent that he has been in medical work without undue incidents, the need to maintain the AL will diminish. I cannot suggest more focussed controls. But it is the legal duty of the RDPH to keep the position under critical scrutiny.

Lord Justice Longmore:
 


42. I agree with Laws LJ that, whether one approaches the question in this case by reference to the common law or by reference to the European Convention on Human Rights, the right legal test is whether the disclosure of the unsubstantiated allegations against Dr D in the Alert Letter which went out to potential employers was justified by the existence of a "pressing need for that disclosure" to use Lord Woolf MR's phrase in Ex parte AB [1999] QB 396, 428B. That was a case of disclosure of convictions but the same test was applied by Dyson J in Ex parte LM [2000] 1FLR 612 which was a case of allegation only.
43. Was there then a "pressing need" for any prospective employer of Dr D to be informed of the unfortunate fact that 6 separate and unconnected women had made allegations of inappropriate medical examination by Dr D, although no such allegations had been prosecuted to conviction in the Crown Court or substantiated in regulatory proceedings? In my judgment there was such a need on the facts of this case for the reasons which my Lord has given. I would only add that a recommendation was made that Dr D should have a chaperone present when he examined women patients but that did not happen. This feature of the case only serves to reinforce the conclusion to which I would, in any event, have come.
44. I recognise that the consequences of this decision are very serious for Dr D and entirely agree with what my Lord has said in the postscript to his judgment.

Lord Justice Ward:

45. I agree with both judgments. There is nothing more I can usefully add.