Case No C1/2010/2779 
Neutral Citation Number: [2011] EWCA Civ 1529
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE MITTING

Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday, 1 November 2011
Before:

LORD JUSTICE HUGHES
LADY JUSTICE BLACK
and
LORD JUSTICE TOMLINSON
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	THE QUEEN ON THE APPLICATION OF TA	
Appellant	
	V		
	
NORTH EAST LONDON NHS	

Respondent	

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Mr Nigel Ley (instructed by Universal Solicitors) appeared on behalf of the Appellant.

Ms Victoria Butler (instructed by Kennedys Solicitors) appeared on behalf of the Respondent.

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Judgment

LORD JUSTICE TOMLINSON:

1.	This is an appeal against the refusal of Mitting J to grant permission to the appellant, who I will call Mr TA, to apply for judicial review in respect of a decision of the respondent NHS Foundation Trust. 

2.	The background to the application is that Mr TA was at one time living with his wife and young son, but unfortunately in 2009 he and his wife became estranged.  During that year Mrs TA was the subject of various psychiatric assessments.  In due course a Dr T, a consultant psychiatrist, who happens to be employed by the defendant Trust, became involved.  The only evidence that we have as to the circumstances in which he became involved emerges from a transcript of proceedings in the Family Court on 25 February 2011.  In this evidence on that occasion Dr T explained that he had been requested to report upon Mrs TA by an independent social worker contracted to the relevant local authority first response team, and that that is how he came to be involved in the case.

3.	Mr and Mrs TA are now divorced and in the course of either 2009 or 2010 there were proceedings in the Family Court concerned with the question of custody of the child.  More recently, as we understand it, the proceedings in February 2011 were directed towards questions of contact to the child for Mr TA, the earlier proceedings having resulted in Mrs TA being granted custody so that the child is resident with her.

4.	Mr TA complains that the report produced by the consultant psychiatrist Dr T is defective.  It is his contention that as a result of that he has been prejudiced or that there have been prejudicial consequences both to him and to his son in that firstly, custody has been given to Mrs TA which Mr TA alleges ought not to have happened, and secondly, he says actual physical harm has in consequence come to his son because he alleges that he has observed some bruising on the child when he has seen him after the child has been in the custody of his mother.  

5.	Mr TA first raised a complaint in relation to the report of Dr T with his employers on 1 December 2009.  He asked for an investigation into the circumstances in which the report was drawn up.  He asked for an explanation as to how Dr T could have come to certain conclusions which were apparently at variance with conclusions reached by other independent consultant psychiatrists.  In that letter he complained of the consequences that had ensued as a result of what he said was a deficient report.  At the conclusion of that letter Mr TA said that he looked forward to a response, but that if there was not a response to his request for an investigation he would make a formal referral to the Parliamentary Health and Social Services Ombudsman.  

6.	That complaint caused the NHS Trust to write to the mother, Mrs TA, seeking her consent to the Trust investigating the position.  In that letter written on 10 December 2009 the Trust said to the mother that in order for them to be able to proceed in relation to the complaint they would require her consent under the terms of their own Data Protection Act and Trust Policy for that to be done.  What they no doubt had in mind, as was later enunciated in correspondence, was that it would in their view be impossible to investigate the complaint concerning the content of the report by Dr T and the circumstances in which it had been prepared without looking at the medical records of the mother in order to put the report of Dr T in its proper context.  It is apparent that at no stage has the mother given her consent for her medical records being used for that purpose.

7.	On 12 January 2010 the Trust wrote to Mr TA advising that as they had not received consent from his former wife for:  

"...you to act as her representative in the matter of the complaint you have made.  That being the case, we are unable to proceed with the matter and have, as a consequence closed our file."

8.	That letter was written in somewhat confusing terms in that, of course, Mr TA was not asking to act as the representative of his wife.  However, in further correspondence between the Trust and Mr TA the position emerged really very clearly  to the effect that the Trust considered that in order properly to investigate the complaint that had been made they would require access to the complete medical records of the mother.  That was spelled out in a letter written by the Trust to Mr TA, the appellant, on 15 March 2010 in which they said this at paragraph 9:

"Irrespective of your client's right to complain to the Trust, we maintain the position that Mrs TA must provide her consent before an investigation into this matter can be instigated. Any investigation into the contents and extent of Dr T's report will inevitably involve the scrutiny of Mrs TA's medical records and other papers. For that reason, her consent is required before any investigation of that kind can be instigated."

9.	The decision of the Trust which is sought to be impugned by this application for permission to apply for judicial review is in point of form a letter of 18 February 2010.  In this letter the Trust had repeated their earlier somewhat misleading formula as to the failure of Mrs A to agree to her former husband acting as her representative in the matter, but it is clear that the substance of the decision complained of is simply a refusal of the local authority to investigate further the complaint that has been formally made to it by the appellant pursuant to, or under the auspices of, The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009.  Dissatisfied with that stance the appellant indicated on 23 February that he would apply for permission to apply for judicial review, and in due course he did so on 12 April 2010.  

10.	The grounds for judicial review indicated that the claimant sought to challenge the defendant's decision to refuse to comply with its statutory duty to investigate a complaint raised by the claimant.  That decision was said to be unlawful as failing to comply with the statutory duty placed on the defendant by virtue of the regulations to which I have just referred.  The grounds went on to say:

"The complainant [it says in fact "complainant" but I think it means "complaint"] as to investigation of the report prepared by Dr T does not necessarily require access to all of the patient's previous records in any event."

11.	And then two paragraphs on: 

"The defendant is expected to investigate fully and fairly the [complaint raised] by the Claimant with regard to the conduct, content and manner of compilation of a report prepared and submitted by Dr T dated 3 April 2009 affecting the Claimant."

12.	The application for judicial review came before Mr James Goudie QC on the papers and he refused permission to apply, noting in his brief reasons:

"1) Judicial review is inappropriate 
"2) the proceedings are out of time and time should not be extended
"3) the claim is unarguable on the merits."

13.	The application was renewed before Mitting J on 23 November 2010.  Mitting J took the view that there was a short answer to the application and in the course of a short judgment, having heard argument for the applicant only, he concluded that the applicant Mr TA was precluded by the provisions of CPR 31.22 from making use of Dr T's report in support of his complaint to the NHS Foundation Trust, because that was a document which had been disclosed in the course of the family proceedings.  Those family proceedings had been held in private, rather than in public, and that in those circumstances the principles enunciated in authorities such as Harman v SSHD [1983] 1 AC 280 and the content of CPR 31.22.1 itself indicated that it would only be in circumstances where a document disclosed for the purpose of court proceedings had subsequently been read to or by the court, or referred to, at a hearing in public, that a party would be at liberty to use the document for purposes other than the conduct of the proceedings in which the report had been disclosed. 

14.	It is common ground before us that in adopting that approach Mitting J inadvertently fell into error because CPR 2.1 provides that the Civil Procedure Rules do not apply to proceedings of the kinds specified in the first column of a table which is there set out which includes at number 5 family proceedings. That disapplication is effective save to the extent that the Civil Procedure Rules are applied to family proceedings by another enactment and there is no enactment which has that effect.  That being the position the relevant regime by which the applicant was bound was the Family Proceedings Rules 1991, and in particular Rule 11.4.1(c) of those rules.  It was, and it is, accepted that it was open to Mr TA pursuant to that rule to communicate to the NHS Trust the contents of Dr T's report about which he complained because that was necessary to enable him to put flesh upon the bones of his bare complaint to the Trust in relation to the making and contents of the report.

15.	That being so it is plain that Mitting J proceeded upon a misapprehension and we must look at the substance of the application for permission to apply for judicial review ourselves. 

16.	The principal ground upon which Mr Ley, for the applicant, contends that the NHS Foundation Trust has acted unlawfully is that it has, he says, misapprehended the position so far as concerns its ability to have access to Mrs TA's medical records for the purpose of enabling it to investigate the complaint.  Before I deal with that point I should however mention that it has been conceded for the purposes of these proceedings by the NHS Trust that the complaint has been properly brought pursuant to Regulation 5(1)(b) of the 2009 Regulations which says that a complaint may be made by a person who is affected, or likely to be affected, by the action, omission or decision of the responsible body which is the subject of the complaint. As I understand it that concession has been inspired by a desire to deal with the complaint so far as is possible on its merits.   I, for my part, entertain grave reservations as to whether the concession is rightly made. We do not have to decide the correctness of the concession for the purposes of disposing of this appeal and I am not to be taken as accepting that it is correct.

17.	The position here is that Mr TA is complaining about the contents of a report drawn up by an independent consultant psychiatrist for the purposes of court proceedings for which purpose that consultant Dr T had, necessarily, undertaken an overriding duty to the court.  Furthermore he had been instructed by a party to the proceedings who was neither the husband nor the wife, and it just so happens that he is a consultant psychiatrist who is employed by the NHS Trust. I, for my part, think it most unlikely that it was intended by those who drafted these regulations that a complaint as to the content or a report of this nature, effectively therefore a complaint as to the exercise of clinical judgment and the manner in which Dr T reached his conclusions, was intended to be comprised within the type of complaint that could be made under these regulations.  

18.	Mr TA is a person affected by the action or omission of the NHS Trust only insofar as any action or omission of Dr T falls in this context properly to be attributed to the Trust.  Even the question whether or not Mr TA is a person affected by an action or omission of Dr T himself is itself not an easy one to resolve bearing in mind that the decision that the son should reside with his mother was one made by the court in the exercise of its discretion having weighed up the evidence given on all sides. As I say in those circumstances it is by no means clear to me that Mr TA is a person who can properly be said to be affected by an action or omission of the NHS Trust.

19.	But leaving that matter on one side and dealing with the matter on the basis upon which it has been argued before us, as I indicated Mr Ley contends that the Trust has misapprehended its powers. In particular he says that the Trust is permitted by reason of the combination of the provisions in the 2009 regulations and section 35 of the Data Protection Act 1998 to require disclosure to it of the wife's medical records. Section 35 of the Data Protection Act 1998 provides that:

"Personal data are exempt from the non-disclosure provisions [of the Act] where the disclosure is required by or under any enactment ..."

That is the only part of section 35 that has been argued to be relevant.

20.	Mr Ley points to the fact that under the  National Health Service Complaints (England) Regulations 2009 to which I have already referred the Foundation Trust is under an obligation under Regulation 6(4) to handle the complaint in accordance with the regulations. He points to the fact that under paragraph 3(1) of the Regulations each responsible body which includes therefore this NHS Trust must make arrangements for dealing with complaints efficiently and properly.  He refers also to Regulation 14 which is to some extent duplicative but which provides that a responsible body to which a complaint is made must investigate the complaint in a manner appropriate to resolve it speedily and efficiently.

21.	Mr Ley says that in those circumstances bearing in mind that the Trust is placed under a statutory duty to investigate the complaint, it must have implied power to enable it to carry out its duties and that that implied power can be regarded as satisfying the saving in section 35(1) of the Data Protection Act to the effect that personal data are exempt from the non disclosure provisions where the disclosure is required under any enactment.

22.	I cannot accept that argument.  I agree with Ms Butler who has appeared for the respondent NHS Trust that if any such power is to be found, particularly a power in respect of records so sensitive and confidential as medical records, then such a power would be required to be express. It is simply impossible to spell out of the duties cast upon a responsible body under the 2009 Regulations an implied statutory right to call for the disclosure to it of medical records in relation to which the relevant patient has not given consent to disclosure.  

23.	That being the case it is, in my judgment, impossible to see on what basis the Foundation Trust can be held to have reached an unlawful decision bearing in mind that it has reached the conclusion that it cannot properly investigate this complaint without access to the medical records of the person to whom the impugned report related. 

24.	In his reply Mr Ley relied belatedly upon a suggestion that Dr T had a more long‑standing involvement with the care and treatment of Mrs TA than that which I have described.  He said that in such circumstances the NHS Trust would have documents available to it, in the sense that they would have access to the documents generated by Dr T's care of the patient and he suggested that there were further provisions of the Data Protection Act pursuant to which the NHS Trust might be empowered to have access to those records for the purpose of investigating the complaint. For my part I am not prepared to consider the application upon that basis.  We have no evidence before us as to any earlier or different involvement of Dr T.  As I have indicated the only evidence that we do have of his involvement is contained in the transcript of proceedings to which I referred earlier, in which he explained that he had become involved with the case at the request of an independent social worker contracted to the local authority first response team.

25.	Accordingly I for my part am unprepared to consider what might be the position if it is the case that the NHS Trust holds some limited medical records as a result of some other different involvement of Dr T. I might add that in any event it would seem to me that any such investigation of the complaint on that basis would be likely to be a somewhat limited and unsatisfactory investigation.  Plainly the  NHS Trust has taken the view that it could not fairly and properly investigate this complaint without having access to the full range of medical records relating to this patient including therefore her general practitioner records and her records relating to her care in the community and treatment by the community health teams, all of which information would be necessary if one were to attempt to carry out a proper investigation of an exercise of clinical judgment by Dr T.

26.	The remedy of judicial review is a discretionary remedy and in my judgment it is not an appropriate remedy in the present case. Insofar as Mr TA has fears concerning the welfare of his child that, of course, is something which can quite properly be taken up with the various child protection agencies.  Indeed, as I understand it, in any event this is being dealt with within the context of the ongoing family court proceedings.  If Mr TA wishes to complain that his complaint has not been properly handled by the NHS Trust he can make an appropriate application to the Parliamentary Health and Social Services Ombudsman. I would, for my part, refuse permission to apply for judicial review on the basis that it is an inappropriate remedy as was the conclusion of Mr James Goudie QC.  However, I have also reached the very clear conclusion, for the reasons I have given, that no arguable case is shown that the Foundation Trust has adopted an unlawful approach to the performance of its duties.

27.	For all those reasons therefore, although it is plain that Mitting J approached the matter upon an erroneous basis, I would for my part nonetheless uphold his decision and refuse permission to apply for judicial review.

LADY JUSTICE BLACK: 

28.	I agree. I too would refuse permission to apply for judicial review. I would particularly observe that a material factor for a court considering whether to grant permission for a judicial review application is whether alternative remedies are available. As my Lord has said there are alternative remedies available in this case, in enumerating them I am not seeking to encourage Mr TA to pursue this matter further but their existence is relevant to my decision. His anxieties about the care of his son are already being dealt with by the family Court which is well placed to consider, and has already considered, his complaints about Dr T and also the weight that should be given to Dr T's report. Secondly there are other avenues by which to complain about the professional conduct of doctors which are very much better suited than this procedure. Indeed I confess to uncertainty as to whether the regulations with which we have been concerned today were designed to deal with complaints of the type that Mr TA wishes to pursue in relation to the clinical judgment of doctors. I am also left uncertain by the evidence as to whether Dr T was in fact acting in the course of his employment when he provided the report about which Mr TA seeks to complain, although that uncertainty does not form a central feature of my decision.  Thirdly, if Mr TA wishes to pursue anything further relating to the decision of the Trust in relation to this complaint then he may approach the Health Service Ombudsman.

LORD JUSTICE HUGHES:  

29.	I also agree. I should like to make it clear that I share the doubts that my Lord and my Lady have expressed about the following. Firstly, whether Dr T was acting, when writing a report to the family court, in his capacity as an employee of the Foundation Trust. Secondly, even if he was, whether the present complaint regulations are apt to cover complaints about the clinical or medical judgment of the consultant psychiatrist when advising the court as distinct from the exercise by the Foundation Trust of its functions, see Regulation 6(b).  Thirdly that despite the concession understandably made by the Trust, Mr TA is a person affected by the action of the Foundation Trust for the purposes of Regulation 5.1(b).  However, in any event as has been observed, judicial review is a discretionary remedy. I should unhesitatingly refuse it in any event.  Firstly, because the issue which it seeks to raise is in effect a collateral attack on proceedings which are either concluded or still continuing in another court where the whole of the evidence can properly be investigated by those who are charged with that duty.  Secondly, because if (I say only if), there were to be a prima facie case of any kind of professional misconduct, the right body to complain to is the appropriate professional body and not the Foundation Trust.  For all those reasons, so clearly given by my Lord and my Lady, this appeal must be dismissed. 
 
Order:  Appeal dismissed.