QUEEN’S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| PATRICIA HOWARD|
- and -
|SECRETRARY OF STATE FOR HEALTH||Defendant|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Richard Lissack Q.C and Nicholas Bowen (instructed by Alexander Harris) for Sheila Wright-Hogeland
Philip Sales and Jonathan Swift (instructed by Secretary of State for Health) for the Defendant
AS APPROVED BY THE COURT
Crown Copyright ©
Mr Justice Scott Baker:
“…..many deficiencies in the standard of care you provided to patients as well as unprofessional and dishonest behaviour.”
Ayling - the essential facts
“It is the unanimous view of those who have consulted us that Doctor Ayling was able to abuse them because of long term failures within the health system to deal with unsafe practitioners. These need to be identified and corrected in the interests of all patients in the future………..They feel with some considerable force that, as they took a public stand, any investigation of the failure of the health system into protecting them against Doctor Ayling should also take place in a public forum. ”
“To assess the appropriateness and effectiveness of the procedures operated in the local health services (a) for enabling health service users to raise issues of legitimate concern relating to the conduct of health service employees; (b) for ensuring that such complaints are effectively considered, and (c) for ensuring that appropriate remedial action is taken in the particular case and generally.”
- “To identify the procedures in place during the (period) 1985 – 2000 within the local health services to enable members of the public and other health service users to raise concerns or complaints concerning the actions and conduct of health service professionals in their professional capacity.
- To document and establish the nature of and chronology of the concerns or complaints raised concerning the practice and conduct of Doctor Clifford Ayling, a former GP from Kent during this period.
- To investigate the actions which were taken for the purpose of (a) considering the concerns and complaints which were raised; (b) providing remedial action in relation to them; and (c) ensuring that the opportunities for any similar future misconduct were removed.
- To investigate cultural or other organisational factors within the local health services which impeded or prevented appropriate investigation and action.
- To assess and draw conclusions as to the effectiveness of the policies and procedures in place.
- To make recommendations informed by this case as to improvements which should be made to the policies and procedures which are now in place within the health service, (taking into account the changes in procedure since the events in question). ”
Finally it was asked to provide a full report to the Secretary of State for Health for publication by him and to make the appropriate recommendations.
Neale – the essential facts
“The case, like others recently, raises a number of important, wider issues for the whole system of medical regulation. I cannot defend the G.M.C procedures that 15 years ago failed by allowing Neale to practice in this country despite his record in Canada. Furthermore, his case highlights serious deficiencies in N.H.S procedures. The first complaint from N.H.D management to the G.M.C was not made until February 1998. It is difficult to understand why local action on his poor practice was not taken much earlier……..the Neale case underlines the need for a change in the law to make it possible for us to take direct action on the basis of disciplinary action overseas. I have written today to the Secretary of State on how best to strengthen our powers to this end……….But the real lesson is more fundamental. The Neale case underlines, yet again, why there is such an urgent need to implement the systematic review of all doctors’ practice through effective clinical governance locally, underpinned nationally by the regular revalidation of doctors’ registration with the G.M.C. That is the only way to ensure that the public is fully protected.”
i) “ Why was he able to become employed and retain his post as a senior consultant in the U.K in September 1984, having been severely disciplined in British Colombia in 1979 and struck off in Ontario in 1985?
ii) Why, from 1986 when both the G.M.C and the responsible health authority knew about the desperate Canadian past, did they fail to take any action at all to protect the public?
iii) More specifically, why upon learning about the seriousness of the allegations and having decided to investigate in 1986 and again in 1993, did the health authority decide not to contact former colleagues of Neale in Canada or the regulatory and professional bodies?
iv) Why/how have the DoH lost the relevant files detailing the 1993 investigation?
v) Why when the G.M.C was contacted by the health authority in 1993 did it and/or the DoH fail to take action?
vi) What were the conclusions of the investigation and why was Neale allowed to continue in practice - does the report still exist?
vii) At what stage were concerns over Neale’s past and future passed on to the DoH - when did they know and to what extent are the very serious allegations against the chief medical officer in the Claimant’s witness statement well founded?
viii) Why did the G.M.C/his employers fail to take action when Neale was arrested following an incident with two other men in a public lavatory in 1991?
ix) Why was Neale appointed to the post of Head of Clinical Risk Management at Friarage Hospital enabling him to dismiss each complaint about his own activities and levels of care?
x) Why, in view of the level of concern over all aspects of Neale’s professional and personal qualities, was the decision taken to reach the deal whereby he left his post in Yorkshire with a £100,000 plus pay out, an unlawful ultra vires agreement that the trust would purchase his consulting rooms and a good reference to enable him to seek employment in the public or private sector straight away?
xi) Was the reference negligent? Who wrote/authorised it? Did the DoH know? If they did not should they have done? What particularly did the C.M.O Professor Donaldson know? Who authorised the reference, was it the C.M.O? Was Doctor Saunders instructed to sign it?
xii) How many patients died unnecessarily?
xiii) Should the earlier investigations have been held in secret?
xiv) Was Neale a warped and criminally responsible individual or just incompetent?”
( One year’s paid sabbatical leave.
( A further £50,000 pounds if he did not obtain a substantive post by the end of the year.
( An agreed reference to be provided by the medical director of the Trust.
( Income tax liability for the severance payment to be met up to the value of £30,000 by the Trust.
It later came to light that the Trust had, additionally, purchased his consulting rooms. The Trust’s auditors pointed out that this was beyond the Trust’s powers.
I have not seen either the original reference or a copy of it, but it is said that it was supplied by the Trust’s clinical director who expressed respect for Neale’s clinical and intellectual abilities. The chief executive of the Trust wrote to Professor Donaldson, then regional director, on 3 February 1998 saying:
“…….I think we were fortunate to be able to negotiate his resignation. I am aware there is some criticism of the way in which we resolved the matter, but know that you will appreciate how difficult it is to resolve this kind of issue, and hope that we have your support.”
“Would you support a public inquiry into the Richard Neale scandal and all the issues it raises which are crucial to the future of the whole question of healthcare and to the restoration of public confidence in the medical profession in the U.K?”
“It is clear that there will need to be a full and independent review to examine these past events and ensure that all possible lessons are learned.”
The previous month the Minister of State had written to the Liberal Democrat health spokesman in identical terms.
“I hope this reassures you that ministers will ensure that the Neale case is given full and proper scrutiny and all possible lessons are learned for the future.”
“To identify the procedures in place during the period 1985 – 1995 within the local health services to enable members of the public and other health service users to raise concerns or complaints concerning the action and conduct of health service professionals in their professional capacity.
To document and establish the nature of and chronology of the concerns or complaints raised concerning appointment, practice and conduct of Richard Neale in respect of his employment as a consultant in the Northallerton Hospital.”
The statutory background
“It is the Secretary of State’s duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement –
(a) in the physical and mental health of the people of those countries, and;
(b) in the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with this Act.”
Subsection (2) provides that the services are generally to be provided free of charge.
“Without prejudice to the Secretary of State’s powers apart from this section, he has power –
(a) to provide such services as he considers appropriate for the purpose of discharging any duty imposed on him by this Act; and
(b) to do any other thing whatsoever which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty.
This section is subject to section 3(3) below.”
Section 3(3) has no relevance to the present cases.
“The Secretary of State may cause an inquiry to be held in any case where he deems it is advisable to do so in connection with any matter arising under this Act.”
The following subsections give powers to the person appointed to hold the inquiry to compel the attendance of witnesses, obtain the production of documents, take evidence on oath and so forth.
Section 84(6) gives the Secretary of State power to make orders as to the costs of the parties, but there is no such power under Section 2.
“(1) Where it has been resolved…..by both Houses of Parliament that it is expedient that a tribunal be established for inquiring into a definite matter described in the Resolution as of urgent public importance, and in pursuance of the Resolution a tribunal is appointed for the purpose either by His Majesty or a Secretary of State, the instrument by which the tribunal is appointed or any instrument supplemental thereto may provide that this Act shall apply, and in such case the tribunal shall have all the powers, rights and privileges as are vested in the High Court or in Scotland the Court of Session…….in respect of the following matters……”
The Section then goes on to specify attendance of witnesses, examination on oath, production of documents, immunity etc.
“A tribunal to which this Act is so applied as aforesaid:
(a) Shall not refuse to allow the public or any portion of the public to be present at any of the proceedings of the tribunal unless in the opinion of the tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given and
(b) ……(gives power to authorise or refuse to authorise representation).”
The Ayling decision
The Neale decision
The Secretary State’s position
The ambit of the Neale inquiry
“Put in colloquial terms, if it (the inquiry) confines itself to examining how other agencies impact on the National Health Service, and does not seek to tell other agencies how to do their job then it can be regarded as validly constituted under section 2 of the 1977 Act…..”
i) The fact that when a major disaster occurs involving a loss of many lives it has often been considered appropriate to hold a full public inquiry enhanced in that case by (a) an issue as to the number of deaths attributable to Dr Shipman (b) the deaths having occurred over a long period without detection and (c) likely widespread loss of confidence in a critical part of the N.H.S.
ii) Positive known advantages from taking evidence in public namely (a) witnesses are less likely to exaggerate or try to pass on responsibility (b) others come forward (c) openness helps to restore confidence and (d) the absence of significant risk of leaks leading to distorted reporting.
iii) The particular circumstance of the case:
a) An open inquiry was what the families wanted and the Secretary of State had been wrong to think otherwise;
b) The wide terms of reference lead those friends and relatives of the deceased who had not figured in the indictment to believe the inquiry would investigate how and why their relatives died;
c) What had been said in the House of Commons about the nature of the inquiry had lead to a misunderstanding;
d) There was no obvious body of opinion in favour of evidence being received behind closed doors. In this regard the court had evidence from Sir Louis Blom Cooper in favour of evidence being heard in public, and no evidence to contrary;
e) Given an inquisitorial procedure and firm chairmanship there was no reason why the inquiry should take longer if evidence were taken in public, nor was there reason to believe any significant evidence could be lost.
iv) A presumption the inquiry would proceed in public in the absence of persuasive reasons to the contrary.
v) The additional public confidence its report and recommendations would command, restoration of public confidence being a matter of high public importance.
“Where, as here, an inquiry purports to be a public inquiry, as opposed to an internal domestic inquiry, there is now in law what really amounts to a presumption that it will proceed in public unless there are persuasive reasons for taking some other course. Although Article 10 of the Convention is not yet incorporated in English law it does no more than give expression to existing law as to the right to receive and impart information.”
i) The terms of reference were very different from those in the present case. It is unnecessary for me to recite them in full. They are set out at 300B of the judgment. They were essentially backward looking focusing on the issues raised by the deaths of Dr Shipman’s patients.
ii) The evidence from Sir Louis Blom Cooper about the desirability of inquiries being in public was uncontradicted.
iii) The Secretary of State’s failure to appreciate the families’ views.
iv) The finding of fact that a public inquiry would take no longer.
v) The finding that the Secretary of State had given too much weight to the candour argument.
“It is an undoubted truth that a statutory inquiry conducted in public would last longer and cost more and the money so spent would of course otherwise be available for the care of patients. This was pre-eminently a matter for the judgment of the Secretary of State.”
The decisions in the present case
“As mentioned previously, the Secretary of State was particularly concerned that the inquiry investigated thoroughly the issues about the effectiveness of the N.H.S system. This, in his view, was the only way that patients’ best interests would be protected. This would require a level of frankness from witnesses (some of whom may carry some responsibility for failures) that he believed would be unlikely to be forthcoming unless the hearings were private.”
He made a similar comment in paragraph 76 of his evidence in the Neale case.
Speed and Cost
The purpose of the inquiries
“1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority or impartiality of the judiciary.”
“On the face of it the Secretary of State is thereby prohibited, in the context of the present case, from restricting a family witness waiting to give evidence from receiving information that others who are currently giving evidence wish or may be willing to impart to him, namely an accurate account of what they are saying not based simply on their own imperfect recollection after they have finished.”
“…..to collect process and disseminate such information, which by its nature could not otherwise come to the knowledge of the public.”
Articles 2 and 3
“In every formal investigation it is of great importance that members of the public should feel confident that a searching investigation has been held, that nothing has been swept under the carpet and that no punches have been pulled.”
He also relied on the reference to a near presumption by Kennedy L.J in Wagstaff at 320F. In truth, however, Mr Lissack’s claim that there was legitimate expectation that the inquiry would be held in public fails on the facts. As the Divisional Court mentioned in Wagstaff, over the previous decade there had been no uniform practice and in each case the decision about the form of the inquiry turned on its own particular facts.
MR JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been handed down these applications fail.
MISS STERN: My Lord, I have no application for costs in this matter, but for the avoidance of doubt, I understand that the claimants will be seeking leave to appeal. In the event that there was any appeal to the Court of Appeal, just to avoid any doubt, the respondent does reserve the right to apply for costs in relation to such an appeal.
MR JUSTICE SCOTT BAKER: Yes.
MR FAULKS: My Lord, we would simply ask for our costs, detailed assessment of the publicly funded costs, that being the new way of describing a legal aid taxation of our costs.
MR JUSTICE SCOTT BAKER: Yes.
MR FAULKS: But otherwise no order as to costs.
MR JUSTICE SCOTT BAKER: I am glad to hear that the Secretary of State is not seeking an order for costs in this case and I shall make no order as to costs subject to publicly funding assessment of your costs.
MR FAULKS: My clients are grateful.
MR BOWEN: I have nothing to say on costs, but I do have something brief, however, to say on permission.
MR FAULKS: My Lord, I will be brief too. I was in court when the previous judgment was pronounced and heard the determination of the application for permission to appeal. Your Lordship is well aware of the arguments that were raised and could be raised as to why this matter should be taken further. What we say is that our case is much closer to Wagstaff than the foot and mouth application, and therefore less easy to distinguish, so that we were in a position of having two decisions of a divisional court and a decision of your Lordship which are not precisely in harmony. We submit that there are important issues here as to whether or not there is the presumption identified by Kennedy LJ for a hearing to be held in public, and, secondly, on the application of Article 10. These, in our submission, amount to compelling reasons why your Lordship should give permission to appeal, notwithstanding the determination of the court in which you were a member in the foot and mouth matter. That is my application, my Lord.
MR BOWEN: My Lord, all I can usefully add to that is two points. One relates to the submissions that were made in both cases relating to intensity of review and the engagement, even without Convention rights, of what we broadly called constitutional rights, and the very important argument that we say will have to be made at some stage by the higher courts on whether it is simply good old Wednesbury or a more intensive search by the court into the underlying facts. That is the first point. The second point, which your Lordship clearly thought was peculiar, was related only to the Wright-Hogeland case, the implied obligation.
MR JUSTICE SCOTT BAKER: Articles 2 and 3.
MR BOWEN: I am very aware of course that your Lordship did not go into the meat of those submissions, dealing simply with the question, are we a victim for the purposes of section 7, and the very tricky question of retrospectivity. On that point, my Lord, as I understand it, first of all, the decisions have not come out in the Court of Appeal yet in the Armein(?) cases. Also, from my possibly superficial researches, the retrospectivity point was not taken in any of those cases. It was taken in this case and was possibly the most important reason why your Lordship did not engage with the major argument on whether the right was implied or not. If it is a good point here, in my respectful submission, it is a good point there. It is a terribly important argument, even with your Lordship's findings and remarks in relation to the lack of evidence in relation to Article 2. In my respectful submission, there is very clearly good evidence here relating to Article 3. Accordingly, on that point alone, this case does merit further investigation at the next level.
MR JUSTICE SCOTT BAKER: I am not minded to grant leave to appeal for essentially the same reasons as were given by Simon Brown LJ in the foot and mouth case, and I am not persuaded that any of the additional reasons advanced in this case make a difference. Of course, it does not stop you from going to the Court of Appeal to ask for permission for appeal if you are minded to do so.
MR BOWEN: I am very grateful, my Lord.
MR JUSTICE SCOTT BAKER: I am very grateful to everybody for their helpful arguments.