England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		CO/2090/2003 Royal Courts of Justice Strand London WC2
		24 October 2003

1. THE DEPUTY JUDGE: This is a claim for judicial review by Dr Lannas (the claimant) against the Home Office to quash the decision of the Policy Advisory Board for Forensic Pathology, (the Board), approved at ministerial level, to remove her name from the Home Office Register of Pathologists -- a decision communicated to her by a letter dated 31 January 2003.
2. A forensic pathologist on the Board's register is known and referred to in the criminal courts as a Home Office pathologist, and where there has been a death in suspicious circumstances and which is being investigated by the police, it is the invariable practice of the Coroner to instruct a Home Office pathologist to carry out the post mortem. Someone whose name is not on the register is highly unlikely to be instructed. A fortiori if her name has been removed.
3. The constitution of the Board begins with this paragraph:

"The Home Office Policy Advisory Board for Forensic Pathology (hereafter referred to as the 'Board') was instituted in 1991 to oversee the provision of forensic pathology services in England and Wales to establish best practice for the speciality, and to encourage the development of the profession through the training of practitioners and the support of academic departments and relevant research."

4. In pursuance of that objective, the Board has adopted accreditation and review and auditing procedures for forensic pathologists seeking to be appointed to the Register, and to enable their appointments to continue.
5. Accreditation is the process by which a forensic pathologist is appointed to the Register. Review and Audits of his work, once appointed, are the processes by which his name remains on the Register. The document which deals with these procedures states at paragraph 1.7:

"Forensic pathologists whose name appears on the Home Office Register are required to take part in a regular audit programme which will be administered by the Board. They should also take any appropriate steps to ensure their knowledge of the speciality is kept up-to-date.

At 2.3 in the final sentence, one reads:

"Retention of the practitioner's name on the Register will be subject to a successful outcome of the regular audit procedure."

Then one reads:

"Procedure for routine audits of the pathologist's work.

"4.1 The Board will constitute a Quality Assurance and Scientific Standards Committee, the membership of which will consist of four senior and experienced forensic pathologists with the addition of a legally qualified member. Any three of the pathologist members will constitute a quorum.

"4.2 No member of the [Committee] may serve simultaneously on the Accreditation and Appointments Committee.

"4.4 Audits will take into consideration the standard of the individual pathologist's practical input in attending scenes of crime, performing autopsies, producing the relevant reports and assisting in the preparation of the case. Reports will also be sought on other aspects of a practitioner's work such as his performance as an expert witness in court.

"4.5 Audits of the way in which the pathologist provides a service and of his performance as an expert witness in court will normally take place during regular reviews held at specified intervals. The Audit of scientific standards will normally be ongoing; the results of such audits will be taken into account in the reviews."

Returning to paragraph 4.1, it is accepted that it is possible to ensure that the members of the Quality Assurance and Scientific Standards Committee are independent so far as the particular audit they are considering may be concerned. There is no reason why there should not be people appointed ad hoc to that Committee in order to deal with a particular case. If a forensic pathologist's work proves unsatisfactory, he can be made the subject of a disciplinary proceeding. Under the heading, "Suspension from the Home Office register", paragraph 9.1 of the Procedures Document states:

"If the Pathologist's performance, as assessed on an examination of further samples of his work, does not improve within a reasonable period of time consideration may be given to suspension or termination of his accreditation and registration on the Home Office Register. In such an instance the code of practice applying to disciplinary procedures will be invoked and the pathologist will be so informed as soon as is practicable."

6. The complaints and disciplinary procedures are contained in a separate document at page 26 of the bundle. I do not need to refer to its provisions.
7. Dr Lannas' difficulties began well before her name was removed from the Register. Prior to 4 February 2000, her professional work had been the subject of adverse comment and publicity, and on that date, the Metropolitan Police addressed to all London Coroners their anxiety about her services being used in cases of death which were being investigated by them.
8. In the subsequent disciplinary proceedings begun against Dr Lannas, but unfortunately never concluded, she candidly accepted that the combination of the adverse comment and publicity and the letter to the Coroners sounded, at that time, the death knell for her practice as a forensic pathologist acting for the prosecution (see paragraph 14 of the detailed grounds at page 10). It is to state the obvious to say that Dr Lannas' vulnerability to cross-examination meant also that her prospects of being instructed on behalf of the defence in criminal proceedings, or by either party in civil proceedings, had been seriously damaged. I pause to acknowledge that the Court of Appeal criminal division in the case of Edwards has recognised that a police officer should not be cross-examined about a disciplinary charge which has not yet been heard and decided, although of course he may be asked whether certain facts are true or not. The fact is, despite that restriction, anyone preparing a case would be reluctant to call a witness handicapped, whether or not through any fault of her's, as Dr Lannas was. She told the Disciplinary Tribunal that her career had been stopped in its tracks (see paragraph 14 of the detailed grounds).
9. It is true that that was more than 18 months before the correspondence, which in my judgment is at the heart of this case, took place, and there is no evidence of what Dr Rothwell, the Secretary of the Board, knew about the state of Dr Lannas' employment or unemployment in that interval. Common sense suggests though that anyone familiar with the world in which a Home Office pathologist works would know that things would not have improved.
10. The Disciplinary Tribunal inquiry into the allegations that Dr Lannas' work did not reach the standard expected of a Home Office pathologist began on 19 March 2001, but on 20 April, all the members of the panel felt obliged to recuse themselves because, for one reason or another, each of them concluded his independence had been compromised. I should make it clear that this had not happened through any fault on the part of Dr Lannas or her legal advisers.
11. Following this, the Board considered whether to convene a new Disciplinary Tribunal, but concluded that there was a very real risk that the same thing might happen again and therefore decided against it. What they did was to refer the complaints to the General Medical Council. An assessment panel of that Council considered them and heard evidence. It concluded that no serious deficiency had been found in the standard of Dr Lannas' performance and that the General Medical Council would be taking no further action.
12. Before this, however, the Board was proposing to conduct an audit of the Home Office pathologists. A letter was written to all those on the Register dated 12 October 2002. Dr Lannas says she never received it and I therefore ignore it save for the history of the proposed audit which one reads in the first paragraph, page 90 of the bundle:

"I wrote to you on 18 April to explain that the Policy Advisory Board for Forensic Pathology had commenced a new programme of scientific audit. Included with the letter was a short paper explaining the way in which the audit would be conducted. Participation in the audit programme is a requirement for pathologists registered with the Home Office."

13. It was decided to divide the pathologists into two groups by reference to the first letter of their surnames so as to spread the work of the audit team over a longer period of time. A further letter dated 8 November 2002 was written to those who had not responded to the earlier letter. Dr Lannas received a copy of this letter. At page 92 the letter begins:

"I wrote to you on 12 October seeking copies of autopsy reports for audit and I am extremely grateful to those practitioners who have already sent me material for scrutiny. I now write to request those who have not yet responded to do so as soon as possible.

"If your surname begins with 'J' onwards, will you please send me copies of reports relating to the first six cases commencing on or after 1 January 2001, for which you were called out by the police and subsequently carried out autopsies.

"Material for audit should be sent to me by 15 November 2002 . . .

"It is hoped that in calling for cases dating from the beginning of 2001 sufficient time will have elapsed for the investigations to have been completed. However, if you consider that the inclusion of any particular case in your selection might give rise to potential difficulty because the case is still 'live' (or for any other reason) please do not hesitate to contact me to discuss the matter.

"If you cannot comply with this request for reports for any other reasons -- because, for example, you have not carried out six call-outs for the police, I should again be grateful if you would please contact me. The Policy Advisory Board regards participation in audit as essential, and the Board's Constitution states that:

'Retention of the practitioner's name on the Register will be subject to a successful outcome of the regular audit procedure'."

Pausing there, it is apparent that the requirement for the period to be covered by the reports is not inflexible.

14. I can accept that Dr Lannas must have felt hard done by as a result of what had happened. Her work had dried up, she had been the subject of a disciplinary inquiry which had reached no conclusion and her case had been referred to the General Medical Council. Nearly two years after the Metropolitan Police had written to the London Coroners she had neither been condemned nor cleared. At best she was in a professional limbo.
15. But that said, she knew from the terms of the letter and of the routine audits Procedures Document, which all Home Office pathologists receive, that a failure to respond to the audit requirement could, at the least, put her continuance on the Register at jeopardy. However, she chose not to respond to the letter from Dr Rothwell at all.
16. He was not obliged, in my view, to write again, but he did on 16 December in these terms:

"Dear Dr Lannas

"As you will be aware, the 2002-03 round of audit of casework undertaken by Home Office registered forensic pathologists is under way, and I wrote to you on 12 October and again on 8 November to request copies of autopsy reports for scrutiny. To date I have had no reply from you, and accordingly, I should be most grateful if you could please explain your position.

"The material required for the current audit is reports relating to the first six cases, undertaken on or after 1 January 2001 for which you were called out by the police and in which you subsequently carried out an autopsy. I recognise that you may not have undertaken any work for the police early in 2001. If that is the situation, but you have such cases dating from a different part of the year, please let me know. It may be that we can come to some arrangement to accept cases which do not precisely meet the criteria set by the Scientific Standards Committee of the Policy Advisory Board for Forensic Pathology.

"I should remind you that the Constitution requires every pathologist whose name appears on the Home Office Register to submit reports for audit as and when required by the Board. Accordingly, I should be most grateful for a reply by 1 January 2003, and I look forward to hearing from you."

As I have said, this was a letter addressed personally to Dr Lannas whereas the two others were addressed to all forensic pathologists.

17. Dr Lannas handed this letter to her solicitor and it received this reply, dated 24 December 2002 (page 96):

"Dear Dr Rothwell

"I am writing with reference to our telephone conversation on Thursday 19 December, to our exchange of emails that day and in reference to letters which you wrote to my client, Dr Lannas, dated 12 October, 8 November and 16 December 2002.

"It is a matter of considerable concern and some surprise that, despite your central involvement in the matter of the Home Office Inquiry concerning my client and in respect of the subsequent General Medical Council proceedings, you are apparently unaware of the true position about my client's professional activities.

"You and Professor Crane have written a significant series of letters to various authorities since 1997. You were instrumental in the setting up of the Home Office Inquiry which later failed and there have been numerous releases of information to the media, presumably from the Home Office, both before and after the Inquiry dealing with the issues arising from it.

"Against that background it is almost impossible to conceive that Dr Lannas could have done any work for the police in recent years and even more difficult to think that you could have been in any doubt about the matter.

"As to the management of this current audit, my client is acutely aware of your failure to manage the previous audit so as to illicit all relevant information which instead emerged only at the Inquiry, often through our efforts on her behalf. Therefore in respect of the current audit would you please specify how you propose to run it, given 1) the conflicts of interest which exist between most members of the forensic pathologists list and Dr Lannas as a result of the Inquiry and the GMC performance proceedings and 2) the fact that audit material is disclosable and not privileged."

18. It is accepted by both sides, as I have said already, that these two letters are at the heart of the case. Miss Lieven, for the Board, submits, and I accept, that the unanswered letter of 8 November must also be considered with them and that the pre-action protocol letter of 31 March of this year sheds light on Dr Lannas' solicitor's letter of 24 September.
19. I have to ask whether Dr Rothwell, in his personal letter to Dr Lannas, was leaving the door open and putting the ball in her court. I conclude that, on a proper reading of this letter, he was. He had not taken her failure to respond to his letter of 8 November as an indication that she had proposed not to co-operate with the audit procedure, and now in his personal letter he was making a further attempt to gain her co-operation. It is true that his suggestion that they might come to some arrangement to accept cases which did not precisely meet the Scientific Standards Committee's criteria follows upon the suggestion that Dr Lannas might have some work for another part of 2001, but I do not read the letter as saying that the work had to relate to that year and that nothing else would suffice. It is clear that the written procedures do not impose any particular time interval between the audit and the work to be audited. The Board is able to approach the matter with a degree of flexibility to meet the facts of the particular case. While going back in time may not be appropriate when it makes the period chosen too close to the last period audited, that would probably not have been the case here. Again, if a pathologist's competence is falling off by reason of age, there may be little point in auditing his work if the period proposed on his behalf is sufficiently different in time to give a fair picture of current performance. Again, that is not the case here.
20. I read Dr Rothwell's letter as leaving the door open for Dr Lannas to offer her co-operation and see if there was a way in which work could be identified to meet the purposes of the audit.
21. The next question is whether the reply written by the solicitor responds to the letter in the way of making a constructive proposal or expressing a desire to find a way through the problem? Or does it do no such thing and does it shut the door in Dr Rothwell's face. Can it be said that by writing that Dr Lannas had not done any work for the police in recent years, the writer was identifying the period before that as one from which reports might be produced for audit? Miss Lieven persuades me that if that was what the writer intended to say, he chose an odd and abrasive way of doing it.
22. When, in the penultimate paragraph, the writer asked about the independence of the auditors, was he simply concerned to receive the assurance that they would be, bearing in mind the unfortunate termination of the disciplinary inquiry and the extent to which Dr Lannas' work had by now been mulled over by the Board and been the subject of critical comment that it had received? It is accepted that from the very beginning he had in his possession the audit procedures document which make it clear in the paragraph which I have already quoted that it should be possible to achieve an independent audit body.
23. In the light of what had gone before, it would have been understandable if the writer had simply sought an assurance about that. The fact is that nowhere in the letter is Dr Lannas' failure to reply to the first letter she received explained. Nowhere is it said she is willing to submit reports for audit if the Board will agree on a period in which she had been working and for which, therefore, she had reports. There is no material before me, independent of this letter, that this was Dr Lannas' state of mind.
24. Finally, I refer to the pre-action protocol letter. Nowhere in that document is there any suggestion that the letter was intended to try to find a way forward or that Dr Lannas was wanting to co-operate.
25. I bear in mind that sometimes solicitors write letters which might have been expressed with greater felicity, but which, even if ineptly, are trying to find a solution to problems. Having considered the letter of 16 December carefully, I accept Miss Lieven's cogent arguments that this letter is not a response to Dr Rothwell's letter intending to find a way forward. It is a point scoring letter and does, in fact, shut the door to any co-operation. That plainly is the way in which it was understood by Dr Rothwell. If it is a matter of whether I am right or wrong, and a matter whether Dr Rothwell could have read the letter in the way I do, I think he could and such a reading would be within Wednesbury parameters.
26. The Board took time to consider and a Minister at the Home Office was consulted. The decision was made and communicated to Dr Lannas and her solicitors by letters dated 31 January 2003 saying she had not complied with the terms of the audit and that her name was to be removed from the Register.
27. Surely at that stage, if the terms of the letter of 16 December had been intended to offer co-operation, one could have expected Dr Lannas' solicitor to write and say so. From the silence in the correspondence it does not appear that he did.
28. In my judgment, my conclusion about the meaning of the personal letter from Dr Rothwell to Dr Lannas, and the reply to her solicitor, are sufficient to conclude the case. Dr Lannas had failed to submit her work for audit and had incurred the consequence of paragraph 2.3 of the Procedures Document which I read earlier.
29. There are though, before I conclude this judgment, some further points with which I shall deal.
30. Mr Kennedy, for the complainant, submits that a further written warning should have been given to Dr Lannas after the Board had received her solicitor's letter. I reject this. The letter of 8 November had made the position clear. In the concluding paragraph of his personal letter to Dr Lannas, Dr Rothwell had reminded her of the obligation to submit reports for audit. Further, both Dr Lannas and her solicitor had a copy of the Procedures Document.
31. Next, Mr Kennedy submitted that Dr Lannas should have been given a hearing before her name was removed from the Register. I do not see why. She had decided against co-operating with the Board and exploring the possibility of a way through the difficulty that she had not been working. So she had failed to meet the requirement which had to be satisfied if her name was to remain on the Register. If she had made suggestions and the Board had refused to discuss them or even to consider them, that might have been a very different matter, but that did not happen.
32. Mr Kennedy also submits that the Board should have treated Dr Lannas as a special case and he cites the example of a doctor whose case is referred to in paragraph 69 and 70 of the statement of Dr Whitehead, who is Chairman of the Board. The cases of that Doctor and Dr Lannas are different. That doctor co-operated with the Board, keeping it informed of events. The example of that doctor does not assist Dr Lannas.
33. Finally, Mr Kennedy submits that the Board should not have acted until it knew the outcome of the referral of Dr Lannas' case to the General Medical Council. It should have waited, and if the outcome was favourable to Dr Lannas, as it was, either decided to dispense with the need for an audit of her work or taken it into account in deciding whether or not to remove her name from the Register.
34. To this, Miss Lieven makes a number of responses. She says the Board did not know when the General Medical Council would announce a decision. It would not have been appropriate for the Board to wait for some unspecified period of time. Nor would it have been just as between Dr Lannas and the other Home Office pathologists who had, in accordance with their obligation, submitted to audit while she had withheld co-operation. There is force in these points. The Board had some discretion, and I am satisfied that the exercise of that discretion in deciding to pursue its own course was not Wednesbury unreasonable.
35. But there is a much more important objection to Mr Kennedy's submission which Miss Lieven raises. She points out that the forensic pathologist who gives evidence to the Crown is an important figure in the prosecution case. It is very important if justice is to be done that he should be a person of ability. It is very important if the public are to have confidence in the doing of justice if they can be confident that Crown Office pathologists are pathologists of real quality. The scheme is there not simply to see what standards are, or even to maintain them, the purpose of the scheme is to do both those things but also to raise standards where possible and to deal with matters of current interest and to see how they are dealt with so that the Board is a teaching body as well as a monitoring body. Those are important matters when it comes to the public confidence in the way in which the forensic pathological service in this country is conducted on behalf of prosecutions. The scheme is one promulgated under the Royal Prerogative. It is the Minister's responsibility and duty to administer the scheme and to see that the proper standards are maintained and that they are elevated. It is for the Minister, through the Board, to set the standards which are required. Those standards, for all I know, may be more exacting than the standards of other Bodies who look into these things, but it is the Minister's responsibility. It is right that he should act in accordance with this scheme for he is responsible to Parliament for the way in which the scheme is run. It would be quite wrong if he did take a course which would amount to delegating the performance of his duty to the General Medical Council, a Body over which he has no control and whose standards are for them and are not standards devised by him through the Board.
36. The mark of the Home Office pathologist is, in modern jargon, a kitemark. The Minister, through the Board, issues it to those who have the requisite ability, and it is his duty to see that, as a condition of them retaining the kitemark, they continue to demonstrate through the audit and review procedures that they still command the skills and have the knowledge requisite for their task and are up-to-date with the latest developments in forensic pathology. The Minister, through the Board, has the duty to maintain the standard of the kitemark and the confidence the public have in it. That is not a task which he can properly be called upon to delegate. For a judge sitting in judicial review to say that he should, would be to trespass into the province of the Executive and Parliament. That is something which he must carefully eschew. For these reasons this application is dismissed.
37. MISS LIEVEN: My Lord, in those circumstances, obviously I ask for the order that the application be dismissed. I ask for an order for the claimant to pay the defendant's costs, and the sum of those costs has been agreed. We have served schedules of costs on each other. The sum I request is £10,945.50.
38. THE DEPUTY JUDGE: That is the total sum?
39. MISS LIEVEN: That is the total sum. I have a schedule, but as it is agreed, I do not think I need to give it to your Lordship. It is £10,945.50.
40. THE DEPUTY JUDGE: What do you say about that, Mr Kennedy?
41. MR KENNEDY: My Lord, that figure has been agreed. I have no observations in relation to either of the first two matters. My Lord, I am bound to raise the question of permission to appeal. My lay client is not here, nor indeed, I suppose, is my professional clients as I am backed by the Medical Protection Society. How particularly my lay client proposes to take the matter forward I know not, but, my Lord, I would seek permission to appeal your Lordship's decision, particularly in relation to the issue of whether a -- what I termed in the course of argument as a letter before action -- whether that document should have been sent to Dr Lannas.
42. THE DEPUTY JUDGE: I make the order for costs in the sum agreed and dismiss the application, and I refuse permission to appeal.