Case No. U20010125

Neutral Citation Number: [2001] EWHC Admin 619
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Sitting in Cardiff

Cardiff Crown Court
Cathays Park
Cardiff

Wednesday 16th May 2001

Before:

THE HON. MR. JUSTICE JACKSON, Kt
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B E T W E E N

DR. MICHAEL HESSION
Claimant

-and-

HEALTH SERVICE COMMISSIONER FOR WALES
Defendant

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From the tape recording supplied to Harry Counsell & Co
1C The Court, Newport Road, Cardiff, CF24 1RH
Official Court Reporters
[Copyright:  No part of this document may be reproduced
or transmitted in any way without prior permission]
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MR. TIMOTHY PITT-PAYNE appeared on behalf of the claimant

MS. DINAH ROSE appeared on behalf of the defendant

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JUDGMENT
Wednesday 16th May 2001
J U D G M E N T
1.	MR. JUSTICE JACKSON: This judgment is in seven parts, namely Part 1 “Introduction”, Part 2 “The facts”, Part 3 “The present proceedings”, Part 4 “Does the Commissioner have power to investigate the appropriateness of the discharge of the patient on 30th April 1996?”, Part 5 “What is the effect of the relationship of confidentiality between the claimant and the patient?”, Part 6 “Delay”, Part 7 “Conclusion”.
	PART 1: Introduction
2.	The claimant is a consultant psychiatrist, who until 1996 was employed by the Powys Health Care NHS Trust at the Mid-Wales Hospital. The defendant is the Health Service Commissioner for Wales, to whom I shall refer as “the Commissioner”. 
3.	Between November 1995 and April 1996 a person to whom I shall refer as “the patient” received two periods of treatment as an inpatient at the Mid-Wales Hospital. The claimant was the consultant psychiatrist with overall responsibility for the treatment of the patient, although other medical staff had greater direct involvement with the patient.
4.	Quite soon after the patient returned to the community for the second time, he committed two murders. The Commissioner is now investigating the circumstances in which the patient was discharged from hospital and certain related matters. The present proceedings concern the propriety of that investigation and the scope of any evidence which the claimant is required to give in the course of that investigation.
5.	Before I delve into the facts and issues in this case, let me first set out the relevant statutory provisions. The Mental Health Act 1983 includes the following provisions. 
“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.
Section 3:
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.
Section 5:
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...”
6.	The Health Service Commissioners Act 1993 (to which I shall refer as “the 1993 Act”) includes the following provisions: 
	Section 1:
		(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....
	Section 3:
		(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...
	Section 4:
		(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...
	Section 5:
		(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....
	Section 9:
		(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....
	Section 11:
		(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...
	Section 12:
		(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.
	Section 13:
		(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)....
	Section 14A:
		(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...
	Section 14C:
		(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...
	Section 15:
		(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.
7.	The Health Service Commissioners (Amendment) Act 1996 repeals section 5 of the 1993 Act with effect from 1st April 1996. The effect of this repeal is that the Commissioner is permitted to investigate decisions which were taken in the exercise of clinical judgment on or after 1st April 1996.
	PART 2: The facts
8.	On 16th November 1995 the patient was compulsorily admitted to the Mid-Wales Hospital for assessment, pursuant to section 2 of the Mental Health Act 1983. On the 6th December 1995 the patient's compulsory detention ceased. He remained at the hospital as an informal patient until 11th January 1996. The patient then returned to live in the community. Arrangements were made for his supervision and support.
9.	In early 1996 the patient had a sexual relationship with a young woman, Miss O. On the evening of 26th April 1996 Miss O told the patient that she no longer wished that sexual relationship to continue. The patient was greatly distressed and discussed the matter the next day with his social worker. On Friday 26th April that social worker arranged for the patient to be re-admitted to Mid-Wales Hospital as an informal patient. He remained in hospital for the next four days and discussed his problems with medical staff.
10.	On the evening of 30th April the patient stated that he wished to leave hospital. He was assessed by the duty doctor, who found no grounds for detaining him under the Mental Health Act 1983. The patient was collected from hospital by his father and taken home. 
11.	During the night of 1st/2nd May 1996 the patient went to the home of Miss O. He discovered Miss O having sexual relations with her new boyfriend, Mr. C. The patient broke into the house and killed both of them by multiple stabbing. 
12.	The patient was charged with the murder of 	Miss O and Mr. C. He advanced a defence of diminished responsibility, contending that he was only guilty of manslaughter. The patient was convicted of the murder of Miss O and Mr. C. On appeal, the Court of Appeal quashed those convictions and ordered a retrial. At the retrial the patient was again convicted of the murder of Miss O and Mr. C. His application for leave to appeal against convictions in his second trial was rejected by the Court of Appeal. Thus at the present time the patient is serving two life sentences for murder and has no further avenues of appeal.
13.	At both the trial and the retrial the claimant was called as a prosecution witness in rebuttal of the defence of diminished responsibility. I have not seen the transcripts of the claimant's evidence at the two criminal trials. However, both parties in the present proceedings have seen the transcripts and Mr. Timothy Pitt-Payne (the claimant's counsel) has summarised those transcripts orally. A summary of the patient's medical notes was prepared for the purpose of the two criminal trials. The claimant was asked some questions about that summary. The claimant was not asked any questions about the notes made by the duty doctor who had most dealings with the patient in April 1996. When defence counsel cross-examined the claimant, that counsel accepted that between 26th April and 30th April 2000 the patient could not be compulsorily detained under the Mental Health Act 1983.
14.	I turn now from the criminal proceedings to other investigations which took place into the death of Miss O and Mr. C. On 22nd January 1997, after the conclusion of the first criminal trial, Mr. C's mother and step-father wrote to the Powys Health Care NHS Trust, complaining about the medical staff who had treated the patient in the period prior to 1st May 1996. In response to this complaint, the Powys-Dyfed Health Authority set up an informal ad hoc inquiry. The claimant was not available to give evidence to this inquiry because of overseas commitments on the date when he was requested to attend. Certain other medical staff were unwilling to give evidence. This inquiry produced its report on 30th September 1998, but was unable to answer all the questions raised by the claimant's mother and step-father.
15.	In late 1998, on a date which is not revealed by the evidence, Mr. C's mother complained to the Commissioner. The complaint concerned two matters. First, the fact that the patient was discharged from hospital on 30th April 1996. Secondly, the adequacy or inadequacy of the informal inquiry set up by the Powys-Dyfed Health Authority.
16.	On 18th November 1999 the Commissioner produced a statement of complaint which outlined the background facts and then stated the matters subject to investigation. The parents of Miss O subsequently associated themselves with the complaint. On 18th October 2000 the Commissioner prepared a revised version of the statement of complaint. This document showed, as complainants, the mother of Mr. C and the parents of Miss O. The concluding paragraph reads as follows:
“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.”
17.	Following the issue of the amended statement of complaint, the Commissioner informed the claimant and other medical staff who had been involved in the treatment of the patient before 1st May 1996 that he would require them to give evidence in the course of his investigation. I will not trace through the correspondence during this period. Suffice it to say that the claimant objected to giving evidence on two grounds. First, the Commissioner did not have power to conduct his proposed investigation. Secondly, the claimant would be bound by his obligations of confidentiality to the patient.
18.	On 6th February 2001 an official at the Commissioner's office sent a letter to the claimant outlining the matters about which he would be questioned. On 19th March 2001 the Commissioner issued a witness summons requiring the claimant to attend on 17th May and to give evidence in connection with the complaint. On 4th May 2001 the claimant commenced the present proceedings in order to challenge the requirement that he give evidence.
	PART 3: The present proceedings
19.	By a claim form filed on 4th May 2001, the claimant challenges the Commissioner's decision contained in two documents:
		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.
20.	The grounds upon which the claimant claims judicial review, as refined in argument, are the following:
		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.
21.	I shall deal with the first ground in Part 4 of this judgment and the second ground in Part 5 of this judgment.
22.	For obvious reasons, the claimant desires his judicial review claim to be brought to a conclusion before 17th May 2001. That is just 13 days after the date of commencing these proceedings. Both the court and the parties have cooperated in achieving that result. The application for permission to apply for judicial review was listed for hearing yesterday, i.e. on Tuesday 15th May. In a five hour hearing yesterday I heard argument both in relation to permission and in relation to the substantive issues. Last night counsel kindly faxed to me the relevant extracts of Toulson & Phipps on Confidentiality (Sweet & Maxwell 1996), together with one further authority. As a result, I am in a position to give judgment on all issues this morning, some 24 hours before the disputed witness summons takes effect. 
23.	I congratulate solicitors and counsel on both sides for the speed and efficiency with which they have prepared this case. The result of this expedition is that if the claim fails, these judicial review proceedings will cause no disruption to the Commissioner's investigation.
	PART 4: Does the Commissioner have power to investigate the appropriateness of the discharge of the patient on 30th April 1996?
24.	According to Miss Dinah Rose, who is counsel for the Commissioner, the Commissioner wishes to investigate three aspects 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?
25.	Mr. Pitt-Payne, who is counsel for the claimant, contends that the Commissioner has no power to investigate these matters for three separate reasons:
		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.
26.	There is a further argument advanced in paragraph 19 of the claimant's skeleton argument, but that has been expressly abandoned by Mr. Pitt-Payne.
27.	The first argument which is advanced on behalf of the claimant turns upon the words in section 3 of the 1993 Act “in consequence of”. Mr. Pitt-Payne accepts, as he must, that Miss O, Mr. C and their respective parents have suffered grievous hardship. However, he contends that they suffered that hardship in consequence of the acts of the patient, not in consequence of the acts of the NHS Trust or its employees.
28.	I do not accept this argument. If it emerges from the Commissioner's investigation that employees of the NHS Trust wrongly allowed the patient to leave hospital or wrongly failed to make proper arrangements for supervision or follow-up, it may well be that those errors caused the death of the victims. It is no part of the law of causation that every misfortune has a single cause. I limit myself to one well-known example. In Dorset Yacht Co. v The Home Office [1970] A.C. 1/004 the cause of damage to the plaintiff's yacht was attributed not only to misconduct by Borstal boys but also to negligent supervision by Borstal officers.
29.	Let me assume in the claimant's favour that the NHS Trust and its employees owed no duty of care to Miss O or Mr. C. That fact does not inhibit the Commissioner from carrying out his proposed investigation. Section 4(1)(b) of the 1993 Act specifically contemplates that the Commissioner will investigate matters where the complainant has no remedy in tort.
30.	I turn now to the claimant's second argument. It seems to me that the Commissioner's investigation will have an entirely different focus from the investigation which occurred during the course of the two criminal trials. In the criminal trials there was no argument as to whether or not the claimant should have been detained in hospital on 30th April 1996. This matter was the subject of a concession by defence counsel. Likewise there was no consideration of what arrangements were or should have been made following the claimant's discharge. Instead the evidence and debate focused upon the patient's state of mind during the night of 1st/2nd May 1996.
31.	The upshot of both criminal trials was this: the patient failed to prove on balance of probabilities that “he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing”. See section 2(1) of the Homicide Act 1957. 
32.	Accordingly, the Commissioner is not acting perversely in investigating the appropriateness of the patient's discharge on 30th April 1996. 
33.	I turn now to the claimant's third argument. It is clear to me, from a fair reading of the correspondence, that the Commissioner is not inquiring into the merits of the clinical decisions made when the patient was in hospital between 16th December 1995 and 11th January 1996. All that the Commissioner is seeking to do in respect of that period is to establish the relevant facts. The history of the patient and his treatment during the period November 1995 to January 1996 is obviously relevant to the subject matter of the Commissioner's inquiry.
34.	In respect of the period 26th April to 30th April 1996 the Commissioner will be reviewing matters of clinical judgment. This inquiry is legitimate. Section 5 of the 1993 Act does not apply to events occurring after 1st April 1996.
35.	For all these reasons I reject the arguments advanced by the claimant. The Commissioner is entitled to investigate whether the patient was inappropriately discharged from hospital on 30th April 1996. My answer to the question posed in Part 4 of this judgment is “yes”. 
	PART 5: What is the effect of the relationship of confidentiality between the claimant and the patient?
36.	The claimant contends, quite correctly, that he owes a duty of confidentiality to the patient in respect of information concerning the patient which he gained in his professional capacity. It is clear from the correspondence that the patient does not consent to the disclosure of any of that information. 
37.	The claimant contends that if he answers the questions which the Commissioner proposes to ask him tomorrow, he will thereby become in breach of his duty of confidentiality to the patient. The questions which the Commissioner proposes to ask the claimant tomorrow are foreshadowed in the letter dated 6th February 2001 as follows:
“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.”
38.	The claimant objects to breaching his duty of confidentiality to the patient for two reasons. First, very properly, the claimant desires to respect the confidentiality of patient information for its own sake. Secondly, the claimant fears that if he answers the proposed questions, he will thereby become exposed to liability to the patient or, at the very least, to a troublesome claim.
39.	The claimant makes the further point that his evidence in the two criminal trials brought into the public domain much confidential medical information. In those circumstances it is even more objectionable that the claimant should be asked further questions which invade the area of medical confidence.
40.	Whilst I understand and respect the claimant's concerns, it seems to me that his legal contentions are unsound. I reach this conclusion for eight reasons.
		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[1920] 36 T.L.R. 196; D v NSPCC [1978] A.C. 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 [1989] 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.
41.	In relation to the confidentiality issue, the claimant puts forward a further argument which I must now address. Mr. Pitt-Payne submits that when evidence is sought which invades the area of medical confidence, a balance must be struck between the requirements of the case in hand and the general need to respect confidentiality. In the present situation it is the court, rather than the Commissioner, which should strike that balance. Accordingly the claimant is entitled to a declaration from this court as to the ambit of matters about which he can be questioned tomorrow.
42.	In my judgment it would be quite wrong for this court to limit in advance the questions which can be put to the claimant by the Commissioner or his delegate. I reach this conclusion for two reasons: 
		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.
43.	In the course of her submissions, Miss Rose recognised the importance of the confidentiality which attaches to the relationship between doctor and patient. Miss Rose stated that the Commissioner or his delegate will not put questions to the claimant which invade the area of confidentiality, unless those questions are relevant and necessary to the investigation. I have every confidence that the Commissioner will proceed in the manner which his counsel has indicated. It is for the Commissioner, not for me, to determine which questions relevant to the investigation need to be put to the claimant.
44.	In the result therefore, my answer to the question posed in Part 5 of this judgment is as follows: the claimant is not entitled to any relief from this court by reason of his relationship of confidentiality with the patient. It is for the Commissioner to determine which questions relevant and necessary to the investigation should be put to the claimant.
	PART 6: Delay
45.	The defendant contents that the claimant has delayed issuing proceedings for more than three months. Accordingly, this court should refused permission to apply for judicial review, alternatively refuse to grant substantive relief on the grounds of that delay.
46.	There has been much argument as to the date when the claimant was in a position to commence the present proceedings. A variety of dates have been canvassed, ranging between December 1999 and March 2001. I do not need to resolve this issue for three reasons. First, having considered the substantive arguments, I am satisfied that the claimant is not entitled to any relief. In those circumstances it is more satisfactory to deal with the substantive issues rather than to side-step them and rely upon delay.
47.	Secondly, Miss Rose concedes that the claimant's claim, albeit unsuccessful, raises matters of public importance. In those circumstances the courts are more inclined to allow an extension of time under Civil Procedure Rules, Rule 3.1(2)(a), for the commencement of judicial review proceedings.
48.	Thirdly, no prejudice has been caused to the Commissioner by the claimant's delay until the 4th May in issuing these proceedings. For the reasons explained in Part 3 of this judgment, the judicial review proceedings are being brought from commencement to conclusion within the space of 12 days. As a result, these proceedings cause no disruption to the Commissioner's investigation. Accordingly, I do not base my decision in the present case upon any delay which may be attributed to the claimant.
	PART 7: Conclusion
49.	In the course of these proceedings the claimant has raised issues which merit, and have received, serious argument. In the circumstances I grant permission to apply for judicial review. 
50.	For the reasons set out in Parts 4 and 5 of this judgment, I reject both limbs of the claimant's claim. Accordingly, the claimant is not entitled to any of the orders or declarations which he seeks.
51.	Finally, I thank both counsel for their considerable assistance in this matter.
52.	MS. ROSE: My Lord, two minor factual points. The first is that you said I had seen a transcript. In fact, I have never seen a transcript of the criminal trials. 
53.	The second was that I think you referred to yesterday as being the 5th May, whereas in fact it was the 15th May.
54.	Finally, I ask for my costs. My learned friend and I have had an opportunity to agree the summary assessment. So I would ask your Lordship to make an order for costs in the sum of £10,847, in accordance with the schedule I have just handed up.
55.	MR. JUSTICE JACKSON: Taking those matters in turn, Miss Rose, is it correct that your clients have a transcript?
56.	MS. ROSE: It is correct that my clients have a transcript.
57.	MR. JUSTICE JACKSON: And it is correct that you made submissions to me at some point yesterday concerning the content of the transcript.
58.	MS. ROSE: I think I may have made submissions to the effect that two of the doctors hadn't given evidence at the criminal trial, but I have never seen the transcript myself.
59.	MR. PITT-PAYNE: My Lord, I can't resist the application for costs and, as my learned friend rightly says, the figure is agreed. 
60.	There is one other matter upon which I would appreciate the opportunity to take brief instructions from my client. Would your Lordship be happy to rise for five minutes to give me that opportunity?
61.	MR. JUSTICE JACKSON: In the interest of expedition, as I have other work to get on with, is it a matter upon which you can take instructions whilst I sit here?
62.	MR. PITT-PAYNE: Well, I can tell your Lordship frankly what it is. It is a question of whether there is any application for permission to appeal. I would like an opportunity to take brief instructions on that.
63.	MR. JUSTICE JACKSON: All right. I will rise for five minutes.
64.	MR. PITT-PAYNE: I am very grateful to your Lordship.
(adjournment)
65.	MR. PITT-PAYNE: I am very grateful to your Lordship for those few moments. I have had an opportunity to take brief instructions. I do ask for permission to appeal, and can I say briefly one thing? In my submission, your Lordship's judgment and these proceedings raise two questions of very fundamental importance, on which there is no direct authority. The first question is whether persons in the position of the complainant can bring a complaint to the Commissioner where their complaint is that they have been affected in consequence of the treatment of some other person. In other words, the point about whether the complainants have suffered in consequence of anything done by the hospital. That is an important point on the scope of the Commissioner's jurisdiction. It is a point upon which there is no direct authority. It is a point that is well fit for consideration by the Court of Appeal.
66.	Secondly, these proceedings raise two inter-related issues about doctor/patient confidentiality. Firstly how the balance between that confidentiality and the interests of an investigation is to be struck in the case of an investigation by an inquisitorial body, such as the Commissioner. And secondly, what are the respective roles of the court and the Commissioner in striking that balance? Again, that is a question upon which there is no direct authority. In my submission it is an important question generally and is well fit for consideration by the Court of Appeal.
67.	Now, what may be said against me is that any appeal would be academic, because I accept that in any event the questioning of the claimant tomorrow will go ahead, and in the light of your Lordship's judgment the claimant will have to answer such questions as the Commissioner thinks it proper to put to him, and will be at risk under s.13 of the Act if he doesn't. So it might be said to me, “Well, what is the point of any appeal?” What I say about that is this: any appeal would be very much material when it comes to the preparation of the Commissioner's report at the conclusion of his investigation. 
68.	If an appeal succeeded on the first of the two issues I have identified, clearly the Commissioner could not report on the part of the complaint that related to the patient's treatment in or discharge from the hospital. If the appeal succeeded in relation to the second ground, that would also in my submission have a bearing on the Commissioner's further investigations and report, because in my submission in those circumstances it would not be proper for him to make any use of confidential medical information which the Court of Appeal held ought not to have been explored in the questioning of the claimant.
69.	So I say there are issues of genuine importance here, and I say that despite the timing, any appeal would not be wholly academic. So for those reasons I make the application for permission to appeal.
70.	MR. JUSTICE JACKSON: I refuse permission to appeal because 
71.	I take the view that the prospects of success are insufficient. Furthermore, by consent, I order the claimant to pay the defendant's costs assessed in the sum of £10,847.