UK Social Security and Child Support Commissioners' Decisions

[2001] UKSSCSC CI_5972_1999 (07 August 2001)

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner's File: CI 5972/99

[ORAL HEARING]

1. The decision of the medical appeal tribunal sitting on 12 April 1999 was in my judgment erroneous in point of law. In that decision, on a reference at the instigation of the Secretary of State under section 46 Social Security Administration Act 1992, the finding of the adjudicating medical authority on 12 August 1997 that the claimant had been suffering from prescribed disease B8 viral hepatitis or a sequela thereof from 23 August 1990 was reversed by the tribunal on the stated ground that he was not currently suffering from hepatitis. I set that aside and refer the case to a fresh (and appropriately constituted) tribunal to redetermine all relevant issues in relation to diagnosis, and to the extent necessary disablement, which had been the subject of a parallel appeal by the claimant himself but the tribunal on 12 April 1999 found unnecessary to consider.

2. I held an oral hearing of this appeal, for which I had myself granted leave in view of the possible issues of principle to which it gave rise. The claimant is a former cardiothoracic surgeon who in 1993 was found to be carrying a chronic viral hepatitis B infection and has since been unable to work at his chosen profession which of course involves handling, and exposure to, blood products. His claim for disablement benefit for prescribed industrial disease B8 viral hepatitis or a sequela thereof was made on 24 April 1996, and gave rise to the adjudicating medical authority's decision of 12 August 1997 and the reference to the tribunal at the instigation of the Secretary of State, notified to the claimant some two months later on 8 October 1997 (see page 27 of the appeal file). On 12 April 1999 the medical appeal tribunal decided against him on diagnosis. At the oral hearing of his appeal before me he appeared and was represented by Desmond Rutledge of the Free Representation Unit, and Rachel Rayner of the solicitor's office, Department of Social Security, appeared for the Secretary of State.

3. Disease B8 viral hepatitis has at all material times been prescribed by the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 SI No 967 in relation to

"any occupation involving contact with –

(a) human blood or human blood products; or

(b) a source of viral hepatitis"

and there is no doubt that by reason of the claimant's exposure to human blood during surgical procedures in his occupation this disease is prescribed in relation to him: the adjudication officer expressly so determined on 16 April 1997 (page 12). The issue determined in his favour by the adjudicating medical authority on 12 August 1997, and referred at the instance of the Secretary of State to the medical appeal tribunal, was whether he was in fact suffering from viral hepatitis as prescribed, or from a "sequela" of that disease, in other words any condition which in his case had resulted therefrom, at any time from and after 4 October 1993. That was the date he claimed his disablement had begun: see his original claim form dated 24 April 1996 at pages 4 to 6.

4. The grounds given by the claimant, who is now aged just under 48, for claiming entitlement to disablement benefit were that he had been working as a doctor in various hospitals and most importantly as a cardiothoracic surgeon in Leeds until the end of August 1990, and at some time after that had contracted an infection of viral hepatitis after which he was now a chronic carrier of hepatitis B. His own short and matter of fact description of the catastrophic consequences of this for himself and his career was:

"I cannot work as surgeon, the profession I practised for 13 years. Also I have long term chances of developing liver failure and liver cancer."

He gave details of the hospital investigations and treatments he had received and said he was now under observation, with regular check-ups.

5. On 12 August 1997 he was seen and examined by a Dr Hilton acting as adjudicating medical authority, who in his two decisions of that date at pages 13 to 21 (the first actually bearing the date 12/11/97, but that was accepted before me to be a slip of the pen) decided after taking a full history from the claimant and examining him that he was and had been suffering from disease B8 or a sequela of that disease from 23 August 1990; and assessed his degree of disablement provisionally at 20% for the period up to December 1999. The record of Dr Hilton's decisions appears to me to make it quite clear that the basis on which the claimant was being found to meet the diagnosis condition was that an investigation in connection with some other treatment he had been having in 1993 appeared to suggest that he had in the past contracted hepatitis B, and that further tests subsequently had shown that he had persistent and chronic hepatitis B infectivity as a result; although as Dr Hilton recorded there were currently no positive clinical findings that he was at present suffering from the liver disease itself. Nevertheless, as Dr Hilton recorded, the chronic hepatitis B virus infection had left the claimant with a continuing loss of faculty, in that because of what Dr Hilton recorded as a past "diagnosis of hepatitis B" (i.e. the disease itself), his continuing infective condition precluded him from doing the work he had been trained for. The long term prognosis was uncertain and though on Dr Hilton's own findings the claimant was at present asymptomatic, his continuing condition involved

"Risk of clinical signs and possible carcinoma of liver and/or hepatic failure."

6. That assessment of the situation was in all material respects borne out by the report dated 14 September 1994 from Professor Thomas, the consultant who had been treating and monitoring the claimant (which was in evidence before the tribunal on behalf of the claimant as specifically noted by the chairman in the record of proceedings at page 37). That report at pages 34A-B said among other things:

"Thank you for your letter requesting an up-to-date medical report on my patient. As you know, he has chronic hepatitis B virus infection with continuing viraemia. Although his liver tests are normal, we know from the natural history of this infection that male patients do go on to develop significant chronic hepatitis ... The rate at which patients develop chronic hepatitis followed by cirrhosis and liver cell cancer is variable. ... Currently we cannot determine which patients will develop significant liver disease and which will remain as asymptomatic carriers. ...

In patients with minimal hepatitis, because of the risk of developing hepatitis, cirrhosis and liver cell cancer, attempts to clear the virus have also been tried but have been unsuccessful. ...

[The claimant] is under regular review in the clinic to monitor for signs of progression of his liver disease. At the moment, he has minimal hepatitis but as I have already indicated, he is at risk of developing progressive disease with the possibility of significant complications. ...

As a patient with persistent hepatitis B virus infection he has a 300-400 fold greater risk of developing liver cancer than the normal population."

7. I think it is obvious that Professor Thomas is there using the expression "minimal hepatitis" to mean "no clinically significant hepatitis", in view of his reference to the claimant's liver tests as currently being normal, and to patients in his current condition having a "risk of developing hepatitis". In other words a person in the claimant's present condition is being described as not currently suffering a clinically significant inflammatory disease of the liver itself (which is what "hepatitis" means) but as having a persistent chronic infective condition, as a result of something that has happened in the past. The nature of this chronic condition is that their bloodstream is continually infected with the virus cells (viraemia) and they are at severe risk of those cells attacking the liver and triggering an acute attack of the liver disease itself (or a renewed attack, if the reason for the presence of the chronic infective condition is antecedent hepatitis, as it may well be: see below) at any time, with potentially fatal consequences.

8. I am also in no doubt that in referring to "chronic hepatitis B virus infection with continuing viraemia" Professor Thomas was contemplating, and as a medically expert body the medical appeal tribunal would or should have understood, that the presence of such a chronic infective condition implies a substantial possibility that the reason for its presence is that the patient will have suffered an attack of acute hepatitis in the past, even if that may have been mild, and may have cleared up so that the patient is showing no current signs of the liver disease itself. As explained in the departmental medical advice most helpfully obtained and included in the written submissions of Mr Brylov on behalf of the Secretary of State at pages 68 to 70 (which I accept as setting out the present state of medical understanding and knowledge which would of course be shared by the medical experts on the tribunal), there is of course a difference between a person who merely carries the infection in his bloodstream and one currently suffering actual liver disease because the virus cells have attacked. However it also makes clear that a further medical and legal issue necessarily arises, in that the patient's infective condition even if he is currently only in the "carrier" or "remission" state may well be due to a past attack of the disease itself. Thus the second part of the diagnosis question expressly referred to the tribunal at the instance of the Secretary of State requires to be addressed, namely whether the prescribed diseases regulations are by virtue of regulation 3 to be applied to the claimant as if he was suffering from the prescribed disease because his current condition, though not itself so prescribed, is a "sequela" resulting from the disease itself.

9. The reason why this further part of the question inevitably requires to be addressed by a medical appeal tribunal as an inquisitorial body considering evidence such as that put before it in relation to this claimant's condition (and the reason why it appears to me quite clear that Dr Hilton expressed himself satisfied that the claimant met the diagnosis conditions for prescribed disease B8, even in the absence of current clinical findings apart from his chronic infectivity) appears quite plainly from these passages from the departmental medical advice:

"(a) A carrier is a person who is not suffering from a disorder, but is capable of passing that disorder to someone else. ... The carrier of a disease may have had the disease, or have merely been in contact with the causative organism, and then harbours that causative organism somewhere in their body, not necessarily in the organ that the disease affects (e.g. the hepatitis B virus is harboured in the blood as opposed to the liver).

(b) Remission – the person has had the disease but due to, for example, therapy no longer has symptoms or signs of the disease, but has the potential to develop symptoms again ...

(c) Dormant – a similar position to remission.

... Whilst there is a difference between a carrier and in remission, in both cases the person is clinically well and has no symptoms of disease.

Hepatitis is an infection or inflammation of the liver ...

Hepatitis infection may be acute or chronic. To carry the HBV does not mean that the person has hepatitis. It means that the virus is present in the blood. The liver is not affected. Hepatitis infection may be acute or chronic.

Acute hepatitis

Hepatitis varies from a minor flu-like illness to a fulminant (i.e. very rapidly occurring) fatal liver failure, depending on the patient's immune response and poorly understood virus–host factors. ...

Diagnosis may be difficult in mild cases as it mimics flu-like illnesses. Hepatitis due to HBV is specifically diagnosed by identifying HBsAg in the serum. (HbsAg = an antigen-antibody system ie the host's immune response to a foreign body). Hepatitis usually resolves spontaneously in 4 to 8 weeks. A chronic hepatitis may occur in 5 to 10% of HBV infections. There is no specific treatment of acute hepatitis.

Chronic hepatitis

Hepatitis lasting for 6 months is defined as chronic (5-10% of infection due to HBV become chronic). Clinical features vary. About one third of cases follow acute hepatitis. Non-specific malaise, anorexia and fatigue are common with low grade fever, and nondescript upper abdominal discomfort. Jaundice is variable. Signs of chronic liver disease may eventually occur (e.g. enlarged spleen, spider naevi, fluid retention).

As regards the laboratory findings of chronic hepatitis, the liver function tests are abnormal. A liver biopsy is essential for a definitive diagnosis of chronic hepatitis. The liver biopsy will show abnormal pathology. Chronic HBV carriers provide a world-wide reservoir of infection."

10. The written submission then continues by stating that the papers contain no evidence (medical or otherwise) that the claimant has actually suffered from an attack of hepatitis, though this is subject to a most important qualification in that:

"I am advised that, in the absence of such evidence, the presumption is that the claimant had a minor attack which resembled a flu-like illness which was not recognised at the time as being hepatitis."

In other words that to a medical expert, the facts and evidence of this claimant's present condition as presented to the tribunal would give rise to a presumption [sic], in the absence of further inquiry or evidence of some other causative agent, that the claimant had in the past had some attack of the liver disease itself which although in medical terms "acute" had been relatively mild, and had resolved itself before being recognised for what it was.

11. I need hardly say that I accept the advice of the department's own expert medical advisers about what this claimant's past history and current clinical presentation as shown by the findings of Dr Hilton and the report of Professor Thomas would mean to a medical expert. In fact the tribunal's own record of proceedings shows that they had one additional piece of direct medical evidence from the claimant himself, which if accepted as truthful (and no reason has been suggested for doing anything else) took the matter outside the field of presumption; since it recorded that in 1990 he had had an original illness, and his liver function had then been shown to be abnormal: see page 39. Admittedly he was never jaundiced, but according the departmental advice quoted above that is in any event a variable factor.

12. That being the relevant medical evidence, and the question expressly referred to the tribunal as set out in the Secretary of State's submission to them in para 5 on page 2A being in terms

"whether [the claimant] is suffering or has suffered from PD8 or a sequela thereof (the diagnosis question) ... if the tribunal diagnose PD B8 or a sequela thereof, they should for completeness record the date from which [the claimant] first suffered from the disease",

(my emphasis), I have to say that I find it surprising and regrettable that:

(1) the Secretary of State in the immediately succeeding section of his written submission to the tribunal misrepresented and grossly oversimplified the relevant issues to the tribunal by saying:

"The Secretary of State submits that in the light of all the medical evidence available though infected with the virus he does not appear to have hepatitis. Therefore diagnosis is incorrect."

(emphasis again added);

(2) this was compounded and made worse by the Secretary of State failing to attend at all before the tribunal and explain the issues in the case to them properly on 12 April 1999: even though, be it remembered, this was not an appeal by the claimant against the diagnosis of the adjudicating medical authority at all but a reference under section 46(3), here in effect an appeal by the Secretary of State himself against the adjudicating medical authority's decision;

(3) the tribunal, so far as can be seen, wholly failed to address the second and most material part of the question referred to them on which the normal medical presumption as well as the indications in the evidence itself appeared to be in the claimant's favour, namely whether his present chronic infective condition resulted from an earlier acute, albeit mild, hepatitis attack.

13. The misdirection by the tribunal is in my judgment apparent from the three short sentences in their statement of reasons on page 42 in which they explained the entire basis for their decision on the diagnosis question as follows:

"The AMA found that [the claimant] was suffering from hepatitis B. The tribunal disagrees. In their view, [the claimant] is only a carrier of the disease – which is a quite different thing, and outside the scope of PD B8."

Of course the adjudicating medical authority did no such thing. What he found as recorded on page 40 was that the claimant had suffered from prescribed disease B8 or from a sequela of that disease since 23 August 1990. That, in the tribunal's own words, is "a quite different thing" from finding that the claimant was currently suffering from hepatitis B. In my judgment they fell into error of law by simply missing the point.

14. I am also inclined to accept Mr Rutledge's submission that there was a breach of natural justice in the way the proceedings before the tribunal took place on 12 April 1999; since not only did the tribunal themselves fail to direct their minds to the relevant issue which might have decided the case in the claimant's favour, but also the issues were misrepresented both to the tribunal and to the claimant himself by the written submission which was all that the Secretary of State provided to explain the case being put forward on his reference for displacing the considered decision of the adjudicating medical authority.

15. Of course with an unrepresented claimant it is the primary responsibility of the tribunal itself acting as an inquisitorial body to ensure that the relevant issues are properly clarified and understood at the hearing and that the claimant has a proper opportunity of dealing with whatever is being said against him. But here a major part of the blame must attach to the Secretary of State for the way the factual issues and the medical material were misrepresented, and in particular for the failure to attend by an adequately instructed and properly experienced representative to assist the tribunal and ensure that the relevant issues were addressed. In such circumstances it must be understood by the Secretary of State that his false economy in failing to attend and conduct his legal proceedings properly before a tribunal may well itself be the direct cause of procedural injustice and of the decision having to be set aside and the case reheard, with all the additional cost that involves.

16. For those reasons, I set the decision of 12 April 1999 aside and remit the case for rehearing in accordance with paragraph 1 above so that the relevant issues can be properly determined. The Secretary of State should attend before the tribunal to make out his case for any departure from the findings of the adjudicating medical authority on the question of diagnosis, and if he does not do so the tribunal will be fully entitled to leave matters as they stand on the basis of those findings and Dr Hilton's decision.

17. In the circumstances I do not consider it necessary to go in further detail into the various other submissions that were made to me on natural justice, and the sufficiency or otherwise of the tribunal's stated reasons on the one issue they did address. I also reject the preliminary submission made by Mr Rutledge on behalf of the claimant that the decision should have been set aside on the alternative procedural ground that there was no evidence before the tribunal to corroborate what the Secretary of State said in his observations at page 2, about leave for the reference under section 46(3) to proceed outside the normal prescribed time having been obtained from a chairman of the MAT. That assertion was not queried by or on behalf of the claimant at the time, and appears to have been accepted by the tribunal as they were in my view entitled to do without further inquiry. In any case, the date of the notification referred to in paragraph 2 above makes it quite clear that the Secretary of State was taking steps well within the prescribed time limit after the adjudicating medical authority's decision to have the matter referred to a tribunal; and although there appears to be some confusion on the certificate on page 29 about the date when the formal notification by the Secretary of State in terms of section 46(3)(a) to an adjudication officer was actually made, there can be no doubt whatever that an adjudication officer did in due course make the reference to the tribunal in accordance with section 46(3), as he was in any event independently entitled to do under paragraph (b) whether within the time limit or not. Moreover the tribunal which dealt with the case on 12 April 1999 was a properly constituted medical appeal tribunal presided over by a chairman having the power to extend the time limit, insofar as applicable, under reg.3(3) Social Security (Adjudication) Regulations 1995 SI No 1801 as at that time in force; and the tribunal as so constituted did of course plainly think fit to proceed and deal with the case on the merits whatever earlier defect there might have been in the procedure.

18. The appeal is allowed and the case remitted accordingly.

(Signed)

P L Howell

Commissioner

7 August 2001