Sitting in Cardiff
B e f o r e :
|DR. MICHAEL HESSION||Claimant|
|HEALTH SERVICE COMMISSIONER FOR WALES||Defendant|
1C The Court, Newport Road, Cardiff, CF24 1RH
Official Court Reporters
[Copyright: No part of this document may be reproduced
MS. DINAH ROSE appeared on behalf of the defendant
Crown Copyright ©
Wednesday 16th May 2001
PART 1: Introduction
"Section 2: Admission for assessment
(1)A patient may be admitted to a hospital and detained there for a period allowed by subsection (4) below in pursuance of an application (in this Act referred to as an application for admission for assessment) made in accordance with subsections (2) and (3) below.
(2)An application for admission for assessment may be made in respect of a patient on the grounds that -
(a) he is suffering from mental disorder of a nature or degree which warrants the detention of a patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and(b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.
(3)An application for admission for assessment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with.
(4)Subject to the provisions of section 29(4) below, a patient admitted to hospital in pursuance of an application for admission for assessment may be detained for a period not exceeding 28 days beginning with the day on which he is admitted, but shall not be detained after the expiration of that period unless before it has expired he has become liable to be detained by virtue of a subsequent application, order or direction under the following provisions of this Act.
Admission for treatment
(1)A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as "an application for admission for treatment") made in accordance with this section.
(2)An application for admission for treatment may be made in respect of a patient on the grounds that -
(a)he is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment, and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital, and(b)in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition, and(c)it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section.
(3)An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include -
(a)such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and (b) of that subsection; and(b)a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate.
Application in respect of patient already in hospital
(1)An application for the admission of a patient to a hospital may be made under this Part of this Act notwithstanding that the patient is already an inpatient in that hospital or, in the case of an application for admission for treatment, that the patient is for the time being liable to be detained in the hospital in pursuance of an application for admission for assessment, and where an application is so made, the patient shall be treated for the purposes of this Part of this Act as if he had been admitted to the hospital at the time when that application was received by the managers.
(2)If, in the case of a patient who is an inpatient in a hospital, it appears to the registered medical practitioner in charge of the treatment of the patient that an application ought to be made under this Part of this Act for the admission of the patient to hospital, he may furnish to the managers a report in writing to that effect, and in any such case the patient may be detained in the hospital for a period of 72 hours from the time when the report is so furnished..."
(1)For the purpose of conducting investigations in accordance with this Act, there shall continue to be:(a)a Health Service Commissioner for England,
(b)a Health Service Commissioner for Wales, and
(c)a Health Service Commissioner for Scotland....
(1)On a complaint duly made to a Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of -(a)a failure in a service provided by a health service body,
(b)a failure of such a body to provide a service which it was a function of the body to provide, or
(c)maladministration connected with any other action taken by or on behalf of such a body,
the Commissioner may, subject to the provisions of this Act, investigate the alleged failure or other action.
(2)In determining whether to initiate, continue or discontinue an investigation under this Act, a Commissioner shall act in accordance with his own discretion.
(3)Any question whether a complaint is duly made to a Commissioner shall be determined by him...
(1)A Commissioner shall not conduct an investigation in respect of action in relation to which the person aggrieved has or had -(a)a right of appeal, reference or review to or before a tribunal constituted by or under any enactment or by virtue of Her Majesty's prerogative, or
(b)a remedy by way of proceedings in any court of law,
unless the Commissioner is satisfied that in the particular circumstances it is not reasonable to expect that person to resort or have resorted to it...
(1)A Commissioner shall not conduct an investigation in respect of action taken in connection with -(a)the diagnosis of illness, or
(b)the care or treatment of a patient,
which in the opinion of the Commissioner was taken solely in consequence of the exercise of clinical judgment, whether formed by the person taking the action or any other person.
(2)In subsection (1) illness includes a mental disorder within the meaning of the Mental Health Act 1983, or the Mental Health Scotland Act 1984, and any injury or disability requiring medical or dental treatment or nursing....
(1)The following requirements apply in relation to a complaint made to a Commissioner.
(2)A complaint must be made in writing.
(3)The complaint shall not be entertained unless it is made -(a)by the person aggrieved, or
(b)where the person by whom a complaint might have been made has died or is for any reason unable to act for himself, by -(i)his personal representative,
(ii)a member of his family, or
(iii)some body or individual suitable to represent him.
(4)The Commissioner shall not entertain the complaint if it is made more than a year after the day on which the person aggrieved first had notice of the matters alleged in the complaint, unless he considers it reasonable to do so....
(1)Where a Commissioner proposes to conduct an investigation pursuant to a complaint under this Act, he shall afford -(a)to the health service body concerned, and
(b)to any other person who is alleged in the complaint to have taken or authorised the action complained of,
an opportunity to comment on any allegations contained in the complaint.
(2)An investigation shall be conducted in private.
(3)In other respects, the procedure for conducting an investigation shall be such as the Commissioner considers appropriate in the circumstances of the case, and in particular -(a)he may obtain information from such persons and in such manner, and make such inquiries as he thinks fit, and
(b)he may determine whether any person may be represented by counsel or solicitor or otherwise in the investigation...
(1)For the purposes of an investigation, a Commissioner may require any officer or member of the health service body concerned, or any other person who in his opinion is able to supply information or produce documents relevant to the investigation, to supply any such information or produce any such document.
(2)For the purposes of an investigation a Commissioner shall have the same powers as the Court in respect of -(a)the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad), and
(b)the production of documents.
(3)No obligation to maintain secrecy or other restriction on the disclosure of information obtained by or supplied to persons in Her Majesty's service, whether imposed by any enactment or by any rule of law, shall apply to the disclosure of information for the purposes of an investigation.
(4)The Crown shall not be entitled in relation to an investigation to any such privilege in respect of the production of documents or the giving of evidence as is allowed by law in legal proceedings.
(5)No person shall be required or authorised by this Act -(a)to supply any information or answer any question relating to proceedings of the Cabinet or of any Committee of the Cabinet, or
(b)to produce so much of any document as relates to such proceedings,
and for the purposes of this subsection a certificate issued by the Secretary of the Cabinet with the approval of the Prime Minister and certifying that any information, question, document or part of a document relates to such proceedings shall be conclusive.
(6)Subject to subsections (3) and (4), no person shall be compelled for the purposes of an investigation to give any evidence or produce any document which he could not be compelled to give or produce in civil proceedings before the Court.
(1)A Commissioner may certify an offence to the Court where -(a)a person, without lawful excuse, obstructs him or any of his officers in the performance of his functions, or
(b)a person is guilty of any act or omission in relation to an investigation which, if that investigation were a proceeding in the Court, would constitute contempt of court.
(2)Where an offence is so certified, the Court may inquire into the matter and after hearing -(a)any witnesses who may be produced against or on behalf of the person charged with the offence, and
(b)any statement that may be offered in defence,
the Court may deal with the person charged with the offence in any manner in which it could deal with him if he had committed the like offence in relation to the Court.
(3)Nothing in this section shall be construed as applying to the taking of any such action as is mentioned in section 11(5)....
(1)In any case where the Health Service Commissioner for Wales has conducted an investigation pursuant to a complaint under section 3(1), (1A) or (1C), he shall prepare a report of the results of the investigation and send copies of it -(a)to the person who made the complaint,
(b)to any Assembly member who to the Commissioner's knowledge assisted in the making of the complaint (or, if he is no longer an Assembly member, to such Assembly member as the Commissioner thinks appropriate), and
(c)to the Assembly First Secretary...
(1)Apart from identifying any body or provider investigated, a report under section 14A(1), a further report under section 14B(3) or a report under paragraph 7 of Schedule 1A shall not -(a)mention the name of any person, or
(b)include any particulars which, in the opinion of the Health Service Commissioner for Wales, are likely to identify any person and can be omitted without impairing the effectiveness of the report or further report,
unless, after taking account of the public interest (as well as the interests of any person who made a complaint and other persons), the Commissioner considers it necessary for the report or further report to mention his name or include such particulars...
(1)Information obtained by a Commissioner or his officers in the course of or for the purposes of an investigation shall not be disclosed except -(a)for the purposes of the investigation and any report to be made in respect of it..."
I shall not read out the rest of section 15, which provides certain strictly limited purposes for which the Commissioner may disclose confidential information obtained in the course of his investigation.
PART 2: The facts
"The matters subject to investigation are that:
(a)the patient was inappropriately discharged from hospital on 30th April 1996; and
(b)the procedures followed to address Mr. C's mother's concerns about that were inadequate."
PART 3: The present proceedings
1. The letter dated 6th February 2001, from the Commissioner's office to the claimant, outlining the matters about which the claimant would be questioned.
2. The witness summons dated 19th March 2001 requiring the claimant to attend at the Commissioner's office on 17th May 2001, in order to give evidence.
1.The Commissioner does not have power to investigate the first of the two matters identified in the statement of complaint. Accordingly, he should not question the claimant about that matter.
2.The matters about which the Commissioner proposes to question the claimant involve a breach of the relationship of confidentiality between the claimant and the patient.
PART 4: Does the Commissioner have power to investigate the appropriateness of the discharge of the patient on 30th April 1996?
1.Should the patient have been compulsorily detained in hospital pursuant to sections 2, 3 and 5 of the Mental Health Act 1983?
2.Were proper preparations made for the care and supervision of the patient, following his departure from hospital on 30th April 1996?
3.Should the medical staff at Mid-Wales Hospital have warned Miss O of the danger which the patient posed to her, following his return to the community?
1.Neither Miss O nor Mr. C nor the complainants fall within section 3(1) of the 1993 Act.
2.It is perverse for the Commissioner to investigate the patient's mental condition and the appropriateness of the patient's discharge from hospital, when these matters were exhaustively considered in the criminal trials. The Commissioner cannot go behind the jury's verdict.
3.Contrary to section 5 of the 1993 Act, the Commissioner proposed to investigate matters of clinical judgment before 1st April 1996.
PART 5: What is the effect of the relationship of confidentiality between the claimant and the patient?
"Regarding the appropriateness of the patient's discharge from hospital, the interviewers will wish to hear your personal recollection of the patient and his care during both his stays at Mid-Wales Hospital. Furthermore, as the senior member of the team caring for the patient, you will be asked to comment on the actions expected of and taken by your staff. It is likely that the assessors will require information about you and your team's clinical assessment of the patient's condition and the plan for his care in hospital and in the community. In particular they will wish to establish what was done to assess whether, during his admissions and immediately prior to his discharge, the patient presented any risk to himself or to others."
1.A doctor's obligation of confidentiality to his patient is overridden if, in the course of legal proceedings, he is ordered to answer specific questions. See Halsbury's Laws, fourth edition, Volume 30, 1992 re-issue, page 21 at paragraph 18; Toulson & Phipps on Confidentiality, paragraph 13-12; Garner v Garner 36 T.L.R. 196; D v NSPCC  AC 171 at 244 to 245.
2.The Commissioner has the same powers as a court to require a doctor to answer questions and thereby to override the obligation of medical confidentiality. See section 12(2) of the 1993 Act.
3.The investigation which the Commissioner is carrying out in this case is an important one. There is an obvious public interest in ascertaining the circumstances in which the patient came to leave a psychiatric hospital a day or so before committing a double murder. The matters outlined in the letter of 6th February 2001 form a necessary part of the Commissioner's investigation.
4.The Commissioner's investigation has heightened public importance for this reason: in addition to ascertaining whether anything went wrong in the past, the Commissioner is also empowered to make recommendations which will reduce the risk of similar tragedies occurring in the future. To this end there is an obvious public interest in obtaining information from medical staff involved in the present case.
5.The fact that some medical information concerning the patient was made public during the two criminal trials does not increase the confidentiality or sensitivity attaching to medical information not yet in the public domain. Contrary to Mr. Pitt-Payne's submissions, I regard the previous criminal proceedings as a neutral factor in relation to this issue.
6.The scheme of the 1993 Act clearly envisages that the Commissioner will explore confidential matters in the course of his investigation in order to ascertain the truth. See in particular section 12(3) and section 12(4) of the 1993 Act.
7.Persons whose confidence is invaded by the Commissioner's investigation are protected by section 11(2) of the 1993 Act, which requires the investigation to be in private. Such persons are also protected by section 14c and section 15c, which closely restrict the publication of confidential information obtained by the Commissioner in the course of investigation.
8.If the claimant answers the questions which he is required to answer when he attends to give evidence tomorrow, he cannot thereby become liable to the patient for breach of confidence. If the patient brings a claim for breach of confidence, that claim will be struck out or summarily dismissed. See Barclays Bank v Taylor  1 W.L.R. 1066. If such an action is brought, that may, for a brief period, be troublesome for the claimant. However, the risk of facing a short-lived and hopeless claim is not a matter which can affect the claimant's obligation to give evidence to the Commissioner.
1. Under the 1993 Act Parliament has entrusted to the Commissioner the task of organising his investigation and determining which matters to pursue and which matters not to pursue. This court cannot interfere unless the Commissioner acts perversely.
2. The Commissioner has far more information than this court about the facts of the present case. By way of example only, the Commissioner and his staff have read the transcripts of the two criminal trials of the patient. No part of those transcripts has been provided to me. The Commissioner knows what evidence has been given by other witnesses in the course of his investigation. This court does not. Indeed, at about 4.00pm this afternoon a member of the medical staff at Mid-Wales Hospital will give evidence to the Commissioner concerning the treatment of the patient. It may possibly be that that evidence will reveal particular matters which ought to be explored when the claimant comes to give evidence tomorrow. As a matter of practicality, therefore, it seems to me quite impossible for this court to make a declaration of the kind which Mr. Pitt-Payne seeks.
PART 6: Delay
PART 7: Conclusion