England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE SIMON
CO88882011

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/10/2012

The Master of the Rolls:

1. Eileen Cubells died at the Royal Albert Infirmary, Wigan on 2 November 2007 after contracting diffuse large b-cell lymphoma. She was admitted to hospital on 16 October 2007 when she presented with classic signs of lymphoma. But the treating clinicians made a working diagnosis of leptospirosis, which is an infection spread by rodents.
2. On 26 October, a CT scan was arranged. This confirmed the presence of numerous tiny lymph nodes in the retroperitoneum. Mrs Cubells was also seen that day by Dr Nabel who recommended a blood film and further haematology investigation. A leucoerythroblastic blood picture was taken by Consultant Haemato-oncologist, Dr Pendry on 26 October. This revealed the possibility of a malignancy. She recommended that a bone marrow examination be arranged and relayed this recommendation to the Haematology Registrar, Dr Nebal. The recommendation was not, however, acted upon.
3. Mrs Cubells' condition deteriorated over the weekend 27/28 October. On 30 October, her case was reviewed by the on-call registrar at the insistence of the family. The registrar was of the view that Mrs Cubells was in sub-acute liver failure as a result of infection. On 31 October, Mrs Cubells was seen by Dr Haslam who recommended that an urgent bone marrow examination be undertaken. The examination was carried out that day. Dr Chernigoy found numerous malignant cells.
4. On 1 November 2007, the treating clinicians commenced anti-lymphoma treatment, but Mrs Cubell's condition continued to deteriorate and she died the following day. The cause of death was (i) multi-organ failure and (ii) haematological malignancy.
5. The claimant had serious concerns about the circumstances surrounding Mrs Cubell's death. In brief, he questioned the investigation of his mother's symptoms and the diagnosis and management of her illness. In May 2009, he contacted HM Coroner for Greater Manchester West and expressed his concerns to her. He told the Coroner that he thought that the medical staff at the hospital had knowingly harmed his mother. He alleged that the doctors had killed his mother in an attempt to hide their earlier mistakes and that they had then conspired to cover up the true circumstances of the death. In view of the seriousness of these allegations, the Coroner contacted the Greater Manchester Police ("GMP") and met DCI Tonge early in May 2010. The Coroner also obtained independent medical evidence. This comprised reports from Professor Hancock (an oncology expert) and Julie Evans (a forensic toxologist).
6. One of the issues that the police wished to investigate was whether there was any evidence that Mrs Cubell had died as a result of gross negligence manslaughter. Mr Cubells was interviewed by the police on 14 June 2010. He was asked to set out his main concerns. He said:

"…We probably feel early on the doctors maybe had the best intentions even though they were negligent….up until the, well probably before the 26^th [October] but we feel after that stage….due to Dr Pendry and Dr Nebal's findings, that my mum did not have an infection and she had lymphoma…the continuation of the antibiotic treatment….should have been stopped at that stage 'cos it was not relevant to my mum's clinical profile. "

Later he said:

"…Dr Nabel comes down and he examines my mum and it's on the 26^th is the important part….it's at that stage they discover the leucoerythroblastic blood picture of which they have strongly suspected that my mum had malignancy lymphoma."

And he expressed his concern that:

"…The [discovery] was hidden from us basically, which is factual, because we put it to the Trust, well why didn't you relay that to my mum or us as a family that you strongly suspected at that stage that my mum had cancer and not leptospirosis….I mean in our opinion them antibiotics should have been stopped….one a leucoerythroblastic blood picture is discovered you need to move quickly…."

Later in the interview, the officer correctly summarised her understanding of the allegations that Mr Cubells was making in these terms:

"….in my opinion the crux of everything relates to the test, the blood picture test that was done on 26^th October 2007…"

7. The police instructed Dr Macdonald MBBS, FRCR, MA, a consultant oncologist, to prepare a medical report to assist them in their investigation. The doctor produced a report which is dated 16 September 2010. She said that the initial diagnosis of leptospirosis was appropriate as "an initial working diagnosis", but that there was "some delay" in seeking alternative explanations for Mrs Cubells' deteriorating condition. If the haematology registrar had taken into account the history of night-time sweats, relapsing fever and liver and spleen enlargement on 26 October 2007 when he first saw her, a delay of 5 days could have been avoided. She said that this failure to react to the clinical situation fell "somewhat below the standard which Mrs Cubells and her family were entitled to expect". Dr Macdonald found no evidence of a cover up. She also said that, if Mrs Cubells had been diagnosed earlier with lymphoma, it was "probable (more likely than not) that she would have died of her condition in the immediate future (within a few days or weeks)".
8. What lies at the heart of the current proceedings is the fact that Dr Macdonald reached her conclusion on the degree of negligence of those who were treating Mrs Cubells without knowing about the blood picture that had been taken on 26 October 2007 or the fact that on that same day Dr Pendry had recommended that a bone marrow examination should be undertaken. In short, it is said on behalf of Mr Cubells that this was a crucial gap in the information that was made available to Dr Macdonald and that, if she had been aware of it, she might well have been more critical of the quality of the treatment that was given to Mrs Cubells and that her report to the police might have disclosed a prima facie case of gross negligence manslaughter.
9. DCI Tonge produced his report on 27 October 2010. It was based inter alia on an examination of the documentation provided by the family; Mrs Cubells' medical notes supplied by the Coroner's office; a taped interview with Mr Cubells; a conversation with Professor John Radford (who had expressed concerns about Mrs Cubells' treatment); a peer review by DCI Giles of the Serious Crime Division; and the report of Dr Macdonald. DCI Tonge concluded that there was no evidence to indicate that the death of Mrs Cubells was due to a criminal act. It is clear that Dr Macdonald's report was central to DCI Tonge's conclusion.

10. On the same day, the claimant complained to the Professional Standards Branch ("PSB") of the GMP that the criminal investigation was improper and not compliant with article 2 of the European Convention on Human Rights ("ECHR"). His complaints included allegations that the four police officers who had conducted the investigation did not have a proper understanding of the facts; one of the officers had been insensitive; and further interviews and investigations should have been undertaken. The grounds of complaint did not include any reference to the blood picture of 26 October or to a concern that Dr Macdonald had not been provided with the full facts. Nor did they allege that the GMP officer should not therefore have relied on Dr Macdonald's report without further investigation. It should be noted that the report was not disclosed to Mr Cubells by the police: it was first disclosed to him by the Coroner on 30 November 2010.

10. When Mr Cubells saw Dr Macdonald's report, he submitted to the police a document in response to it. This document runs to 118 pages. It contains numerous allegations. The only reference to the omission from Dr Macdonald's report of any reference to the blood picture is on pages 30-34 of the document. There is a reference on page 30 to the fact that the nurse entry in the medical records for 26 October was omitted by Dr Macdonald. On pages 31 and 32, the document asks why Dr Macdonald was apparently unaware of the blood picture and provides the probable answer "because it was covered up?" The cover up suggestion is repeated at page 34. There is a section of the document which is headed "Cubells Family Statement in regard to Dr Macdonald's report". It also contains numerous allegations of failures on the part of Dr Macdonald. The opening paragraph encapsulates the flavour of these criticisms: "Dr Macdonald has produced a misleading, erroneous report strewn with important relevant omissions. Here are a few of the reasons as to why we consider her report is misleading and possible fraudulent?" There is no reference in this section of the document to the absence from Dr Macdonald's report of any mention of the blood picture.
11. Meanwhile, on 30 November 2010, the Coroner informed the claimant that there was no basis on which an inquest ought to be held. In reaching that conclusion, she considered the reports of DCI Tonge and Dr MacDonald, as well as the reports that she had commissioned from Professor Hancock and Ms Evans. Professor Hancock was aware of the blood picture and said that the diagnosis of lymphoma might have been made earlier, but that such was the pace of progression of the lymphoma that earlier treatment, on the balance of probability, would not have saved or significantly prolonged the life of Mrs Cubells.
12. On 18 March 2011, Chief Inspector Keller gave the PSB's decision on the complaint. He concluded that the allegations against the four officers were not substantiated. The evidence supported a conclusion that they had "properly considered the allegations you have made regarding criminal conduct surrounding the death of your mother and diligently examined the facts subsequently concluding there was no evidence of crime." He was satisfied that the investigation had been "proportionate and properly conducted".
13. On 25 March 2011, Mr Cubells appealed against the complaint decision to the Independent Police Complaints Commission ("IPCC"). The appeal form set out his reasons for appealing. These included that the investigation was "factually erroneous, factually flawed, factually deceptive, factually defective, factually slanderous, factually oppressive, lacking in the known about facts and biased in favour of the complained about police officers". The reasons continued in a similar vein. They included allegations of dishonesty against the hospital authority and that the PSB had been "in cahoots with the accused hospital". The reasons made no reference to the report of Dr Macdonald, still less to the fact that, in reaching her conclusions, the doctor had been unaware of the blood picture.
14. The IPCC decision was made on 6 June 2011. The decision document accurately and succinctly summarised the grounds of appeal. It referred to the further documents that had been provided by Mr Cubells including the 118 page response to Dr Macdonald's report". The IPCC concluded that the officers who were the subject of the complaint "have appropriately considered the criminal allegations made by Mr Cubells and have conducted appropriate enquiries to properly examine the facts before reaching a conclusion". This conclusion was said to be consistent with all of the expert opinion in the case that had been commissioned by the Ombudsman, the police investigation and the Coroner. There was no evidence to suggest that the officers' actions fell below the standard expected or that the criminal investigation as a whole was inadequate.
15. On 16 September 2011, Mr Cubells filed an application for judicial review of the decision of the IPCC. His case was (and is) that the decision was irrational. His grounds of application run to 135 pages. His application was refused on the papers by HH Judge Pelling QC and subsequently by Simon J at an oral hearing on 19 March 2012. He appeals against that refusal with the permission of Sir Stephen Sedley who granted permission on one narrow ground. He seeks to renew his application on one further ground to which I shall come later.
16. The single ground on which Mr Cubells was given permission to appeal was that, in view of her ignorance of the blood picture when she wrote her report, Dr Macdonald could not have provided an informed opinion about the extent of the negligence and the possibility of a cover up which were matters on which she was asked to comment in her report and on which she did comment. Sir Stephen thought that, since the IPCC did not address this issue in its report, it was arguable that its vindication of the investigation was flawed. He added that, if one could say with total confidence that the circumstances relating to the blood picture could not have made any difference to Dr Macdonald's conclusion as to the extent of the negligence or its contribution to the death of Mrs Cubells, there would be no point in letting the claim proceed; but he did not consider that this point was entirely clear-cut.

The statutory framework

17. Police investigators are obliged, when conducting an investigation, to pursue all reasonable lines of inquiry, whether these point towards or away from a suspect: see para 3.5 of the Code of Practice issued by the Secretary of State pursuant to section 23(1) of the Criminal Procedure and Investigations Act 1996.
18. The IPCC was established by the Police Reform Act 2002 ("PRA"). Its general functions are set out in section 10. By section 13, schedule 3 of the PRA has effect for the handling of complaints about the conduct of a person serving with the police (unless the complaint relates to a direction or control matter). Where a complaint is made, regulation 14E1(c) of the Police (Complaints and Misconduct) Regulations 2004 states that the report of the person appointed to investigate the complaint shall, inter alia, "indicate the investigator's opinion as to whether there is a case to answer in respect of misconduct or gross misconduct". "Misconduct" is defined in regulation 3 of the Police (Conduct) Regulations 2008 ("the Conduct Regulations") as "a breach of the Standards of Professional Behaviour". The "Standards of Professional Behaviour" are as set out in the Schedule to the Conduct Regulations. The only standard relevant to these proceedings is that: "Police officers are diligent in the exercise of their duties and responsibilities". Para 25 of Schedule 3 to the PRA makes provision for an appeal to the IPCC from an investigation into a complaint.
19. Those handling complaints are required to have regard to the Statutory Guidance issued pursuant to section 22(2) of the PRA. The 2010 Statutory Guidance to the Police Service and Police Authorities on the Handling of Complaints provides guidance as to the handling of complaints. Para 302 of the Guidance states that the IPCC expects every investigator to adopt a "proportionate approach to investigating a complaint". Chapter 4 of the Guidance addresses outcomes to complaints and appeals to the IPCC.
20. It is common ground that the court's power in respect of this claim is one of review only. I would endorse what Parker J said in R (Muldoon) v Independent Police Complaints Commission [2009] EWHC 3633:

"19 The IPCC is an independent statutory appeal body to whom Parliament has entrusted the function of reviewing the findings of investigations into police complaints if that is what an appellant requests. The IPCC's decisions are likely to involve matters of judgment. For these reasons this court will allow the IPCC a discretionary area of judgment and will not intervene unless satisfied that the IPCC has gone beyond that permissible area to reach a conclusion not fairly and reasonably open to it …..

"20 It has also been said that the court should not expect or look in the appeal decision for the sort of tightly argued judgment that might be expected of a Chancery judge. On the contrary, what is important and necessary is that the conclusion should be clear and the reasons for those conclusions can be readily understood by the complainant, the police officers concerned and the relevant police authority, who may need to review their procedures in the light of the decision."

Discussion

21. The submissions of Mr Stanbury on the irrationality challenge can be summarised shortly. The first step in the argument is that the investigating police correctly understood from the interview of the claimant that his main concern was in relation to the blood picture of 26 October 2007: see the final extract from the transcript of the interview to which I have referred at para 7 above. If the police had focused on the gap in Dr Macdonald's report, as they should have done, this would, or at least might, have made a critical difference to the way in which they conducted their enquiries and might have led them to conclude that there was a prima facie case of gross negligence manslaughter. The second step in the argument is that the PSB of the GMP were aware that Mr Cubell's complaint in relation to the police investigation included his contention that the conclusion of Dr Macdonald as to the extent of the negligence could not be relied on, because it was reached by her without knowledge of the facts relating to the blood picture. And yet the PSB concluded that the police had considered the allegations against the police without addressing this contention. The third step is that the IPCC's dismissal of the appeal was irrational, because there was no answer to the point that the PSB of the GMP had failed to address the point that Mr Cubells was making.
22. I would reject Mr Stanbury's argument largely for the reasons advanced by Ms Hayward. It is entirely understandable that Mr Cubells and his family were dissatisfied with the treatment that Mrs Cubells received from the hospital. In fact, negligence was eventually admitted and compensation paid. But from an early stage the family has been convinced that there was a cover-up. These concerns about a cover-up led Mr Cubells to overwhelm the PSB of the GMP (and subsequently the IPCC) with long and elaborate documents, often expressed in extreme language. This has resulted in the only issue that is relevant for present purposes being buried under the sheer volume and complexity of the documentation. The only issue that is relevant for present purposes is whether the IPCC were irrational in upholding the decision of the PSB of the GMP that the investigating police had been diligent in pursuing all reasonable lines of inquiry into whether there was a prima facie case of gross negligence manslaughter. These proceedings are not concerned with whether there was in fact a prima facie case of gross negligence manslaughter. Still less are these proceedings concerned with whether there was a cover-up by the doctors.
23. The complaint that was made to the GMP did not raise the issue that the investigating officers should not have relied on the report of Dr Macdonald because she had reached her conclusion on the extent of the negligence without being aware of the blood picture. There was a passing reference to the omission in the 118 page document, but this was made in support of the wholly different point that there had been a cover-up. As I have said above, many allegations were made against Dr Macdonald in the "Cubells Family statement in regard to Dr Macdonald's report", but these did not clearly include the allegation that her report was unreliable because it did not take account of the blood picture.
24. As for the appeal to the IPCC, as I have said, the appeal form set out many grounds of appeal. These did not include any reference to the report of Dr Macdonald. The focus of the appeal was on the alleged misconduct of the investigating officers. It is true that the IPCC also received a 46 page document from Mr Cubells which in turn referred to the 118 page document which had been submitted to the PSB of the GMP.
25. Mr Cubells did not have legal representation. It would, therefore, have been wrong for the IPCC to limit the scope of their consideration to the issues raised in the appeal form if other issues had been clearly raised by Mr Cubells in the documentation that he submitted in support of his appeal. Accordingly, if the 118 page document had clearly raised the point that Mr Stanbury now seeks to argue, the IPCC would have been under an obligation to consider it. But for the reasons that I have given, far from being clearly raised by Mr Cubells, it is not raised at all in the form in which it is now advanced. There was nothing to alert the PSB of the GMP or the IPCC that Mr Cubells was alleging that the possibility that his mother had died as a result of gross negligence manslaughter had not been diligently investigated by the police because Dr Macdonald's opinion as to the extent of the negligence was based on incomplete information. The focus of Mr Cubells' criticism of Dr Macdonald's report lay entirely elsewhere.
26. In my view, the IPCC was fully entitled to reach the conclusion that it did.
27. In these circumstances, it is not necessary to deal with the submission of Ms Hayward (based on the conclusions of Dr Macdonald as to the likely prognosis if the lymphoma had been diagnosed and treatment begun on 26 October 2007) that the negligence did not cause the death of Mrs Cubells.

The article 2 of the ECHR point

28. Sir Stephen Sedley refused permission to argue this point on 18 May 2012, essentially because he did not consider that it added anything to the point on which he gave permission. The renewed application should have been lodged with this court by 25 May. In fact, notice of intention to renew the application was first notified in Mr Stanbury's skeleton argument which was not lodged until 23 September. No satisfactory explanation has been given for this delay. If I had thought that Mr Cubells would suffer a real injustice as a result of being denied a decision on the point, I would have been inclined to deal with it despite the delay. But in my view, Sir Stephen was right. In reality, it is inconceivable on the facts of this that Mr Cubells could fail on the main point (as he has done) but nevertheless succeed on the article 2 point. The family's complaints about the treatment accorded to Mrs Cubells have been the subject of proceedings before the General Medical Council, civil proceedings in negligence resulting in compensation, procedures before the Ombudsman and the Coroner. As a matter of process, the combined effect of these processes is more than adequate to satisfy the requirements of article 2 of the ECHR.

Conclusion

29. For all these reasons, I would dismiss the application for judicial review on the single issue on which permission was granted and refuse the application seeking to renew the article 2 point.

Lord Justice Davis:

30. I agree.

Lord Justice Treacy:

31. I also agree.