Mr Justice Charles
Introduction
- This is an application for judicial revue by Miss A acting by her litigation friend and father. Miss A was born on 23 May 1985, she is now 18. The Respondent is the General Medical Council (the GMC).
- The decision that is the subject of challenge is one made by the Professional Conduct Committee (the PCC) of the GMC on 22 September 2002. That decision was that a Dr Cheetham was not guilty of serious professional misconduct. The hearing before the PCC flowed from a complaint made by Miss A's parents. That complaint was considered first by the Professional Proceedings Committee (the PPC) of the GMC. Miss A's parents were represented before the PCC. As I understand it the costs of that representation were met by the GMC, who formally remained the body bringing the charge against Dr Cheetham before the PCC, but the practical effect of that representation was that through it Miss A's parents presented and pursued the charge of serious professional misconduct heard by the PCC. I shall therefore refer to submissions being made to the PCC on their behalf although formally they were made on behalf of the GMC.
- The terms of the charge of professional misconduct heard and determined by the PCC, and the matters relied on in respect of it, were formulated by the GMC after consultation with the lawyers acting for the parents (and the GMC as the formal prosecutor). This was therefore a case in which the parents of Miss A played a central role in formulating the charge and allegations that Dr Cheetham had to meet and thus the issues before the PCC.
- Dr Cheetham has taken part in these proceedings but after permission had been granted he "bowed out" on the basis of an exchange of correspondence in October 2003 between the solicitors acting for the Applicant who confirmed that "we will not ask for the case to be remitted back to the GMC". Since then Dr Cheetham has taken no part in the proceedings but has been copied the papers therein.
- On the first day of the hearing there was some confusion as to whether the Applicant was seeking an order quashing the decision of the PCC given (a) the arrangement reached with Dr Cheetham, and (b) the stated wish of Miss A and her parents that they would not seek (and as I understood it did not want there to be) another hearing before the PCC. The problem identified in the skeleton arguments was that it seemed that the Applicant was still seeking a quashing order and if such an order was to be made it would be the Professional Practice Committee of the GMC (the PPC) who decided whether there should be further proceedings before the PCC of the GMC. The correspondence pursuant to which Dr Cheetham "bowed out" refers to the GMC (rather than to either or both the PPC and the PCC) and to my mind understandably the leading counsel who had acted for Dr Cheetham before the PCC wrote to the court and the parties inviting the court to hear him (on behalf of Dr Cheetham) on remedy. That leading counsel attended in court as an observer on the afternoon of the first day of the hearing.
- On the morning of the second day counsel for the Applicant told me that he was no longer seeking a quashing order. In my view he and his clients were right to take this decision. Also, and in my view correctly, he considerably modified the declaration sought in written submissions. However counsel for the Applicant maintained his submission that the PCC had erred in law and that as there had been some general interest and comment on the decision of the PCC and the issues raised by, or underlying, this case I should make a finding as to this submission of error of law and a declaration. His assertion of some general interest was based on some coverage of this case in the press and in discussion shown to me in print outs from a BMJ webpage, but both the BMA and the Secretary of State were served with these proceedings and have indicated that they do not wish to take part. I shall return to this.
- I should add at this stage that I have sympathy with the submissions made on behalf of the GMC that (a) it has not been clear from the judicial review form and the lengthy skeleton argument put in on behalf of the Applicant what her case is, and (b) she is now seeking to advance arguments that differ from those in respect of which permission to issue the proceedings was given. However in my view counsel for the GMC was correct not to pursue an argument under CPR Part 54.15 that the Applicant should be refused permission to rely on additional grounds.
- As will appear later in my judgment there is a short answer to this application for judicial review on the basis that the issues before the PCC did not raise the points relating to (a) the effect Miss A's parents wishes and instructions that Dr Cheetham should not be involved, and (b) duties of confidence, which it was argued before me give rise to points of general interest and warranted declaratory relief initially in a wide form and later in a limited form. But as they were argued I propose to deal with them.
Some background
Miss A's illness
- Happily Miss A is now reasonably well. Over the period leading up to and during the time that the acts of Dr Cheetham that were the subject of the proceedings before the PCC took place (June 1997 to the end of July 1999) this was not the case and Miss A was seriously unwell. The reason for this was that she was suffering from what I, like others, shall for convenience call ME.
- There are a number of descriptions of the symptoms of Miss A's illness in the papers. The following account is set out in a witness statement of her solicitor dated 28 January 2003. I quote:
"Miss A was born on 23 May 1985 and became ill over the year from the summer of 1996 until approximately June 1997, aged 12. At that time she was a pupil at the local primary school, where she played netball and enjoyed choir and orchestra.
Apart of these events, Miss A had had a normal, healthy childhood, with no unusual or relevant hospital admissions and few, out of the usual visits, to her general practitioner.
As early as November 1996 Dr Earley a consultant paediatrician at the claimant's local hospital, Wycombe General Hospital had given Miss A and her parents an oral diagnosis at consultation that Miss A had ME.
By June 1997 Miss A was bedridden. She was bedridden because she was in constant physical pain. She was confined to bed for 24 hours a day. She ached physically in every part of her body. Her muscles ached, her eyes ached, it hurt to listen and her head ached so that she was unable to concentrate. By her own instruction she moaned and whined a lot. She could not hold conversations.
From the age of 12 she was confined to bed with what was diagnosed to her as a physical condition without the ability to read, to watch television, to listen to the radio or to music or to hold conversations of any meaningful nature. She could not move from the bed, so she did nothing at all for two whole years. She did not go out, she did not go downstairs in the family home, as moving was so excruciatingly painful. She could not even walk to the bathroom, and her parents and other carers toiletted and bathed her in bed. She did not develop bedsores because she moved around in pain so constantly, as no position was really comfortable for her.
At the time that Dr Cheetham came to see her in June 1997 Miss A was seriously ill, but able to comprehend different types of treatment. She is clear that she wanted to remain at home with her parents in the face of an understanding that Doctor Cheetham wished her to be admitted as an in-patient at hospital for 'treatment'. She was however, in no position at all, to do other than convey these views to her parents unless someone was at her bedside. Muscular pain made it too painful to write or type, but she could make her views known.
From about the age of 14, in mid 1999, Miss A was gradually able to read again and to converse and thus communicate more fully. However she remained physically ill and totally bedridden, but she was able to participate in conversations with her parents and other visitors."
- As that statement shows from June 1997 when she was 12, to mid 1999 when she was 14, Miss A was bedridden at home.
- Professor Sir David Michael Baldock Hall has prepared a statement for the purposes of these proceedings. At the time he did so he was President of the Royal College of Paediatrics and Child Health. His statement has been approved by his successor, the current President. Commenting on the account of Miss A's health given by her solicitor, Professor Hall says:
"As I understand it this child had been, according to the witness statement of Miss Swaine [her solicitor], bedridden from June 1997, unable to hold conversations. She could do nothing at all for two years and movement was so painful that she did not go downstairs in the family home. She was unable to read again or to converse between June 1997 and mid-1999 and even after this stage she was physically ill and totally bedridden. This is a child about whom I and I suspect the overwhelming majority of paediatricians would have been profoundly concerned. There are two distinct bases of that concern which should be separated and defined:
i) Whatever is causing this behaviour it is serious. It may be difficult to understand, it may be an organic disease or a psychiatric condition. Either way it must be recognised as a serious illness which is potentially life-threatening.
ii) Whatever the nature of the condition, it is causing the patient to behave in ways which are profoundly dangerous. We may or may not be able to treat her causative condition, we can certainly organise supportive therapy.
These are separate issues and I shall return to them. The point is that I can readily understand that nothing that Dr Cheetham heard about her caused him to modify the level of that concern. In those circumstances it seems to me wholly reasonable that he should have articulated that concern to those who were also primarily concerned about the problem and who I would have thought would have been grateful for his contribution even if they did not share his view."
- Given Miss A's illness and its effect it seems to me clear that not only would the overwhelming majority of paediatricians have been profoundly concerned so would:
i) her parents, and
ii) anyone concerned with child welfare and protection.
- It is clear that this was the case with Miss A's parents who the PCC described as intelligent loving and devoted parents whose paramount concern has been for their daughter's welfare.
- The emotional and general strain on Miss A's parents was enormous.
Assumptions
- In considering the issues raised on this judicial review the focus is inevitably on matters asserted by Dr Cheetham in documents referred to in the Charge List. Much of what he asserted was (and is) disputed by Miss A and her parents (and I imagine her treating doctors and the local authority).
- I would therefore like to make it clear that nothing in this judgment is intended to be, or should be read as, a criticism of Miss A, her parents, her treating doctors or those in the local authority who made decisions about her. I accept that:
i) there is a considerable amount of relevant material that I have not seen concerning Miss A's day to day care (and that the PCC were in the same position),
ii) Miss A and her parents dispute assertions made or adopted by Dr Cheetham in correspondence I shall be referring to, and
iii) I am not in a position to resolve the underlying issues of fact.
- Indeed I assume and proceed on the basis that as Miss A's parents assert, and have throughout asserted (a) the local authority should never have brought proceedings under s. 31 of the Children Act for a care order or a supervision order in respect of Miss A and that if the local authority had done so the court would have dismissed the proceedings, and (b) Miss A should never have been registered in the Child Protection Register. These assumptions reflect the background of the participation of the local authority in this case.
- As appears later in this judgment a court can determine that a child should receive medical treatment that his or her parents have refused to authorise, and disagree with, in proceedings brought under the inherent jurisdiction (in which I include wardship) or Part I of the Children Act. In such proceedings the court is the decision maker and the welfare of the child is its paramount consideration. I shall also assume that if the issue of Miss A's treatment had been put before the court in such proceedings the court would have concluded that she should be treated in accordance with the wishes of the family and thus as she was treated.
- These assumptions however do not mean that the relevant local authority should not have taken steps to determine whether Miss A should have been registered on the Child Protection Register, whether public law or other proceedings should be issued, or whether it should without any such registration or proceedings take an active part in the lives of Miss A and her family with their consent.
- It also follows, and was not disputed, that my assumptions do not mean that others concerned with the promotion of the welfare of children were precluded from considering whether Miss A was suffering, or was at risk of suffering, significant harm or from taking appropriate steps to promote her welfare having regard to their conclusions.
Relevant provisions of Parts IV and V of the Children Act 1989
- These were the parts of the Children Act that were focused on in argument.
- Section 31 of the Children Act sets out the threshold which has to be established before a court can in the exercise of its discretion make a care order or a supervision order and, as a result, empower and oblige a local authority to intervene in the life of a child and his or her family. It (like other thresholds enabling a public authority to intervene in the life of a family) is an important safeguard.
- Section 31 contains the following provisions:
"31(2) A court may only make a Care Order or Supervision Order if it is satisfied –
a) that the child concerned is suffering, or is likely to suffer, significant harm; and
b) that the harm, or likelihood of harm, is attributable to –
i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or…………..
(9) In this section
"harm" means ill treatment or the impairment of health or development;
"development" means physical, intellectual emotional social or behavioural development;
"health" means physical or mental health; and
"ill-treatment" includes sexual abuse and other forms of ill treatment which are not physical.
(10) Where the question of whether harm suffered by a child is significant turns on the child's health or development, his health or development shall be compared with that which could reasonably be expected of a similar child."
- This threshold condition (and the definitions) should be remembered when s. 47 of the Children Act is considered. Section 47 is a provision with its own thresholds that imposes a duty on a local authority to make enquiries to enable them to decide what action they should take in respect of a child and thus his or her family. One of those thresholds is when the local authority have "reasonable cause to suspect that a child ----- is suffering, or is likely to suffer significant harm". One of the possible courses of action following a s. 47 enquiry is the issuing of proceedings, another is the provision of assistance to safeguard or promote the welfare of the child pursuant to the general duty imposed by s. 17 Children Act (or specific powers) with or without registration in the Child Protection Register. It can thus be seen that there is link between s. 31 and both (a) the threshold in s. 47, and (b) the courses of action a local authority might take following a s. 47 enquiry.
- The above mentioned trigger for the duty imposed by s. 47 namely "reasonable cause to suspect" is lower than the trigger for other provisions (e.g. ss. 31, 38, 44, 46). This reflects the purpose of the duty imposed by s. 47. That duty is to make enquiries to enable properly informed decisions to be made. In my judgment this trigger also informs persons other than the local authority as to circumstances which may warrant them taking steps in connection with the care and welfare of a child.
- The sources of information from which a local authority may form the view that there is "reasonable cause to suspect --- that a child is suffering or is likely to suffer significant harm" may be diverse and can be based on the views and observations of social workers or outsiders. It can also be based on a consideration of a wide range of factors from different sources which individually would not found that belief. It follows that a piece of information provided by, for example, a school teacher or a doctor may not of itself establish this threshold but would be relevant to a consideration of whether it exists. In my view it is important to remember this when considering the actions of Dr Cheetham that are criticised by the Applicant and her parents.
- In a case where a child is seriously ill and is therefore suffering, or likely to suffer impairment to health or development (and thus harm as defined) the threshold condition in s. 31 has two further elements that have to be satisfied namely:
i) is the impairment to health or development that the child is suffering or is likely to suffer "significant" as defined, and therefore having regard to the comparison referred to, and
ii) is the attribution provision in s. 31 (2)(b) satisfied.
In applying s. 31 (and other provisions of the Children Act) the courts apply a purposive and not a legalistic approach (see for example Newham London Borough Council v AG [1993] 1 FLR 281) and understandably there is little authority on the application of the definition of "significant" and who an appropriate comparator should be.
- The attribution provision in s. 31(2)(b) sets a standard of care and is judged objectively (see Lancashire CC v B [2000] 2 AC 147 at 169 B/C). It is an important part of the threshold which has to be established before a public authority can interfere on a non-consensual basis in the life of a family.
- On a pragmatic and purposive approach to the welfare of a child who is seriously ill the determinative issues relating to the threshold set by s. 31 are likely to be based on the care that the child has been receiving and is likely to receive if the local authority does not become involved. This is the case whether those issues are assessed by reference to an actual or hypothetical comparator, or the attribution provision.
Inherent jurisdiction and Part I of the Children Act
- Many cases in which the court becomes involved in issues as to what medical treatment should be given to a child are not brought under Part IV Children Act. A recent well known example is Re A (Conjoined Twins: Medical Treatment)) [2001] 1 FLR 1. This route to the court becoming involved, and indeed becoming the decision maker, was not gone into in any detail before me although its existence was recognised. The judgments of Ward LJ and Robert Walker LJ in Re A cover the family law issues that arose and thus, for example, the nature of the jurisdiction, the role of the court and the approach to be taken to the views of the parents (for example see Ward LJ at pp 27C, 30C to 31G, 32G to 35D and 49D to 54G and Robert Walker LJ 101G to 104E and 118 H). Those passages show that the views of the parents are entitled to very great respect but when the jurisdiction of the court is invoked in this way it is the court that is the decision maker and it has to decide what will best promote the welfare of the child. Welfare is not confined to medical best interests (see 34G to 35B).
More generally proceedings relating to medical treatment of a child
- However,where proceedings are brought before the court there will be fact sensitive issues. For example here there is the issue not present in Re A that the parents had told Dr Cheetham that they did not wish him to take any further part in, or in respect of, the treatment of their daughter; indeed this lies at the heart of their complaints and case.
- It is also to be noted that the statutory formulation of both the standard of care and the definition of "significant" introduce issues such as those that exist in this case relating to the role of a parent to give consent for, and thus to choose, the medical treatment that they think should be given to their child. Further, as I have mentioned, under the inherent jurisdiction the views of the parents are entitled to very great respect. But this is not the place to discuss or decide the nature and extent of any differences in respect of (a) the approach to the views and decisions of parents under the first stage of proceedings under Part IV Children Act (i.e. the threshold test), (b) in the application of the welfare test in such proceedings and (c) in proceedings under the inherent jurisdiction and Part I Children Act. Also this is not the place to discuss or decide (a) when it would be appropriate to issue proceedings under Part IV and when proceedings under the inherent jurisdiction and/or under Part I would be appropriate, or (b) the nature and extent of the interests of persons who may be permitted to issue and pursue proceedings under the inherent jurisdiction or Part I.
- Here the backdrop was participation of the local authority rather than the issue of proceedings by a treating NHS Trust, or one that was not involved in the treatment of the child. But if the local authority had decided that the court should become involved a possibility would have been that they would have sought permission under s. 100 Children Act to issue proceedings invoking the inherent jurisdiction of the court.
- In this case the importance of the ability and role of:
i) the court in making decisions on the medical treatment of a child, and
ii) the local authority to take steps in respect of children in their area
is that in contrast to the position of an adult patient of sound mind concerning his or her treatment, Miss A and her parents do not have complete control over the treatment of Miss A. This in turn means that they cannot by reference to their instructions, or to duties of confidence, prevent others from taking proper steps in and about the consideration of whether proceedings should be issued or whether other action should be taken or continued by the local authority (or others) to promote the welfare of Miss A. Clearly in a case where proceedings are appropriate preliminary action, investigation and discussion will also have been proper and appropriate. To my mind it is equally clear that the fact that action, discussion and investigation concerning the welfare of a child do not lead to the issue of proceedings or further action by a local authority does not mean that such action, discussion and investigation was unlawful or inappropriate. In my view it is important to remember this when considering the actions of Dr Cheetham that are criticised by the Applicant and her parents.
Duties of confidence and Article 8
- Unsurprisingly there was no real dispute between the parties on the law relating to duties of confidence owed by a doctor to a patient (and the parents of a child who is the patient). There was also effective common ground (a) that in the circumstances of this case the positive and negative obligations on the State derived from Article 8 concerning the relationship between doctor and patient were discharged by the common law duty of confidence, but (b) that Article 8 informed the approach at common law particularly as to an assessment of the public interest.
- Duties of confidence arise in many situations but the relationship between doctor and patient is often used as an obvious example of a relationship in which a duty of confidence arises.
- A duty of confidence limits the use and disclosure of confidential material for purposes that are either (a) expressly or impliedly authorised by the person or persons to whom the duty is owed, or (b) in the public interest. What is impliedly authorised naturally depends on the circumstances in which the confidential material was provided and, in my view, where the proposed use or disclosure of the confidential material is to promote a public interest there can be an overlap between arguments on justification based on implied authorisation and the public interest.
Competing public interests
- Where there are competing public interests they have to be weighed to determine whether a use or disclosure of confidential material would be, or was, in the overall public interest. As Sedley LJ explains in paragraphs 55 to 59 of his judgment in London Regional Transport v Mayor of London [2001] EWCA Civ 1491, [2003] EMLR 4 the principle of proportionality should be used in the weighing exercise that has to be undertaken to determine where the overall public interest lies.
- In this and other cases relating to children two titans of the public interest are engaged, namely the well established and high public interests in:
i) promoting doctor / patient confidentiality, and
ii) promoting the welfare of children and thus their protection from harm.
Therefore it is necessary to determine where the overall public interest lies if a doctor wishes to, or has, used or disclosed information provided to him, or obtained by him, in connection with the treatment of a child for purposes relating to the welfare of that child if that use or disclosure has not been authorised, or has been forbidden, by his or her parents.
- This is a judgmental exercise that requires a consideration of various competing interests and it is commonly referred to as a balancing exercise (see for example R (S) v Plymouth City Council [2002] 1 WLR 2583 at paragraph 48 of the judgment of Hale LJ). I was referred to this case by counsel for the Applicant as an example of the focussed balancing that must take place between the justification for, and the extent of the interference with, the confidentiality in medical and similar information. I agree that it is such an example; there are many more. In my view the nature of this exercise means that it is not appropriate to extract from the judgment of Lord Donaldson in Re C (a minor) (wardship: medical treatment) (No 2) [1989] 2 AER 791 at 794 his reference to a compelling public interest pointing in favour of publication or use and to treat that as the test. This is because the need for a compelling reason flows from the strength of the public interest in preserving confidentiality and thus founds the need to identify a public interest which would be served by the proposed use or disclosure and which is strong enough (a) to "do battle" with the public interest in preserving confidentiality, and thus (b) to trigger the balancing act. Further the point that the proposed disclosure or use would serve a strong competing public interest could be said to provide a compelling reason for disclosure but what it does is to trigger the balancing exercise. That exercise will involve the consideration of a number of factors that have general application and a number of factors that relate to the particular facts of a case.
- General factors that are likely to be relevant in the balancing exercise include (a) the reasons that underlie the competing public interests, (b) the roles of the courts and the local authority in respect of child protection and issues concerning the medical treatment of children, (c) the role of the parents of a non Gillick competent child and the respect that should be accorded to their views, (d) the roles of others involved in the relevant use and disclosure and the need for there to be cooperation and communication between people who acquire information that may impact on issues relating to the welfare of children (e.g. doctors, health visitors and teachers) and local authorities who have statutory duties relating to the promotion of the welfare of children.
- Another important general factor that was accepted by both sides is that there is an important distinction between (a) disclosure to a person or persons who are aware of the confidentiality of the information and who in connection with the purpose for which the information is disclosed have a role to play in its consideration or evaluation, and (b) more general disclosure or publication. This is recognised in a number of cases in this and other fields (see for example, R v Egdell [1990] 1 AER 835 at 852 concerning the disclosure by a doctor to a responsible decision making body and Price Waterhouse (a firm) v BCCI (Luxembourg) SA and others [1992] BCLC 583 at 602c). This factor is linked with the point that consideration should be given to the questions whether the use or disclosure that is proposed is reasonably necessary to meet the public interest that it seeks to serve and whether that public interest could be as well served by a different course being taken that involved a more limited use or disclosure of the relevant confidential material or which avoided its use or disclosure (as to that I was referred by analogy to R (Daly) v Secretary of State for the Home Department [2001] 2 WLR 1622 at paragraphs 18 and 31). Thus for example disclosure to a local authority or another doctor may be a proportionate response that was justified in the overall public interest whereas a wider disclosure would not.
- In my judgment when considering statements concerning the nature and importance of duties of confidence owed by a doctor to a patient and the use or disclosure of information covered by those duties it needs to be remembered that the positions of an adult and a child patient are different. The difference flows from the autonomy of an adult patient of sound mind and his or her right to refuse treatment which is different to the position of a child and his or her parents because of the ability of the court to make decisions relating to the treatment of a child under the inherent jurisdiction or the Children Act. Thus in the case of a child patients there are public bodies who can override the decision of the parents.
Child protection
- Those who are regularly involved in child protection issues are well aware that sadly in some cases of children who are very ill, or who are showing signs of serious illness, or who are confined to their home, the standard of care the child is being given, or is likely to be given, by his or her parents (and others) falls short of the level set by the statute (i.e. the care that it would be reasonable to expect a parent to give) even when the parents of the relevant child love that child and are concerned to promote his or her welfare. The reasons for this vary. Also the facts of each case need to be carefully assessed to determine whether the care falls short of the standard set by the statute.
- The problems of, the pressures on, and the anxieties of parents in the position of Miss A's parents are exacerbated by the backdrop and possibility that a local authority and/or a court might conclude that the care they have given, or are likely to give, to their child (as a result of the treatment they have given or consented to and are likely to give or consent to) is not what it would be reasonable for a parent to give their child or that a court might authorise treatment that the parents disagree with. In other words such problems etc. are exacerbated by the power of the court to give consent to treatment that the parents disagree with or to empower a local authority to do this by the making a care order.
- These problems etc. very understandably cause pressure between the parents of such a child and people who do not share the views of those parents as to how their child should be cared for. In this case these problems etc. were compounded for the parents, the doctors and others concerned to make, or to assist in the making of, decisions as to what course of action would best promote the welfare of Miss A by the differences in medical opinion concerning (a) the cause or causes of ME, and (b) the regime of care and treatment of people who suffer from it. Such problems are not confined to ME.
- Miss A's parents have done a considerable amount of research into ME and they are (and were at all material times) of the view that their daughter's illness was an organic condition rather than either a psychiatric condition or a mixture of an organic and psychiatric condition. Their researched and clear lay view lies at the heart of their differences and problems with Dr Cheetham and other health professionals in the area in which they live.
- The view of Miss A and her parents on the basis of their research and observations was supported by a Dr Speight who is based in Durham (some 200 miles from the home of Miss A). He, like Dr Cheetham is a consultant paediatrician. Further Dr Speight's views confirmed those of Miss A's parents.
- There is a considerable amount of material before me which shows the divergence of medical opinion concerning ME and its cause. However I am not in a position to assess the merits of the competing views, or with any precision where in the spectrum of those views the respective approaches of Dr Cheetham and Dr Speight lie.
- The assumptions I have made earlier mean that I have proceeded on the basis that the views of Dr Speight are ones that it was reasonable for Miss A's parents (and the local authority) to adopt on the basis that they are recognised by a competent body of medical opinion. I however pause to add that I accept that:
i) there is an indication in the papers before me that this might be disputed, or that it should be qualified on the basis that it is a minority opinion, and
ii) the happy fact that Miss A has recovered does not demonstrate that the view of Dr Speight (and the family) was correct and the view of Dr Cheetham and others was incorrect. To my mind this is obvious. For example if Miss A had been treated differently she may have recovered more quickly. This is something we will never know.
- In any event, in my view, common sense clearly indicates that as Professor Hall says, Miss A was a child about whom he and he suspects the overwhelming majority of paediatricians would have been profoundly concerned (see paragraph 12 hereof).
- Like Professor Hall as I understand it the care advocated by Dr Speight and adopted in this case was what Dr Speight describes as "therapeutic nihilism". After referring to this Professor Hall goes on to say in his statement, and I accept, that:
"This means that he advocates doing nothing, keeping the child at home, I think at all costs. On the other hand there are also many other doctors I think the overwhelming majority who would not adhere to such a view, and I would have thought that most would have called it into question with a child who had been so ill for so long. The fact that there is a division of opinion about whether it is a psychiatric or a physical condition, and I think that most doctors agree with Dr Speight that we do not have an effective cure to offer for this condition, does not mean to say that many doctors would share the view that nothing can or should be done. In the absence of physiotherapy the child may develop muscle atrophy, spinal and other joint deformity which may prove seriously disabling during the currency of the condition and intractable after the ME has recovered. Where a child is having this sort of difficulty in eating the nutritionist may have a vital contribution to make. A speech therapist may have an important contribution to make. The fact that the condition may be physical or may be psychological that in either event there seems to be no predictable or usually effective cure does not mean that there is not a vital role for the multi-disciplinary approach to support and protect the child. It is not clear to me from the papers how effective the support was that this child was receiving or whether this was best given in the home. I can readily understand that Dr Cheetham questioned how Dr Speight could organise this from 200 miles away.
I understand that at the hearing before the GMC neither the general practitioner nor Doctor Speight gave evidence and that the family refused permission for the solicitors acting for Doctor Cheetham to obtain a statement from either of them. This means that the treatment philosophy and regime to which Doctor Cheetham was expected to defer, was not described to the Committee by the doctors responsible for it. The effectiveness of this secondary pattern of care must have been as obscure to the GMC as I suspect it was to Doctor Cheetham."
The Charge List
- This is set out in the first schedule to this judgment with the small amendments made to it by the PCC when making their findings.
The Decision Letter
- This begins by referring to the hearing dates, the admissions made by Dr Cheetham and the standard of proof. It was and is common ground that the GMC (and thus in practice here Miss A's parents with the help of legal representation) had to prove the case against Dr Cheetham to (or effectively to) the criminal standard. The letter then states that the PCC had considered "each head and sub-head of charge individually", which accords with the advice given by the legal assessor and agreed by the legal advisers of Miss A's parents and Dr Cheetham.
- As to the facts asserted in paragraphs 1 to 4 of the Charge List the findings and admissions recorded in the letter mean that all of the assertions in paragraphs 1 to 4 (b)(iv) in the amended Charge List are found proved or admitted with the exception of paragraph 4 (b)(iii) which is not found proved.
- The letter then continues as follows:
"Having made these findings of fact, the Committee had to consider whether they, together with the admitted facts, would be insufficient to support a finding of serious professional misconduct. In order to do so they had further to consider whether the General Medical Council had disproved your case that your conduct was justified on a number of grounds all of which were capable of entitling you to ignore what might be regarded as the normal rules applying to patient consent and confidentiality. In this case, of course, that consent and confidentiality related to the parents of Miss A, Mr and Mrs B.
The Committee followed the advice of the Legal Assessor in paragraph 10 of his written advice that:
'It is for the GMC to negative Doctor Cheetham's case i.e to prove he was not justified in his conduct / did not have reasonable cause and, to reject it, the Committee would have to feel that he was not justified / did not have reasonable cause.'
The over-riding principle and potentially the most comprehensive justification for your conduct, as it seemed to the Committee, was where a doctor has reasonable cause to suspect that the child concerned is suffering or is likely to suffer significant harm. This was the issue they next considered.
As again they have been advised, the right to intervene in such cases derives from the Children Act 1989 which contains a definition of 'harm'. They took into account all the circumstances relating to Miss A's condition and management as known to you at the material time and your integrity, expertise and reputation as a senior paediatrician.
In the result they could not feel sure that you did not have reasonable cause to suspect that Miss A was suffering or was likely to suffer significant harm. Since this meant you could not be said not to have a right to intervene it followed that the Committee determined that the facts that they had found proved and those which had been admitted were insufficient to support a finding of serious professional misconduct against you.
Having made their finding in relation to the overriding principle with the consequences that flow from it, the Committee did not consider it necessary to consider other aspects of your case which were said to justify your conduct.
Accordingly the Committee find you not guilty of serious professional misconduct.
The Committee would not wish Mr and Mrs B to regard this determination as reflecting any sort of criticism of them. It is clear to the Committee that they are intelligent, loving and devoted parents whose paramount concern has been for their daughter's welfare. They were entitled as are all parents to have the treatment of their choice for their child. However, that did not nullify the right of a doctor with legitimate concerns for his former patient in the special circumstances permitted by law from expressing those concerns in the way that you did. In a case where competing interests cannot be reconciled the Committee can do no more than faithfully apply the law to the facts of the case and reach their determination accordingly.
That concludes the case. "
"-------------------------------------"
A chronology with comment
- My papers helpfully contain a bundle of correspondence that was before the PCC. The correspondence I refer to is in that bundle.
- I should record that I have not forgotten (a) that the papers before me indicate that there were further communications both by telephone and fax between Miss A's parents and for example Dr Cheetham that are relevant, or potentially relevant, (b) that Miss A's parents did not accept the accuracy of the minutes of the first child protection conference (CPC), or (c) that the documents before me do not include all those that were before the PCC and they do not show a full picture.
- It was submitted in writing on behalf of Miss A that for the purposes of this judicial review there is little dispute as to the facts, but it is clear from the written arguments put in on behalf of Miss A and the GMC that this is not so. As mentioned earlier, I am not in a position to determine disputes of fact. However, some of the disputes and relevant issues relate to the effect, or interpretation, of particular documents and in my judgment where I do so I am able to comment and reach the conclusions I do on such matters notwithstanding (or in the light of) the underlying factual disputes and the point that I do not know the whole of the relevant context.
- In my view when considering (a) the charge and the allegations against Dr Cheetham, and (b) the findings of the PCC it is important to remember Miss A's state of health over the period of the matters listed in the Charge List. As to this I have cited the description given by Miss A's solicitor. By early June 1997 Miss A had been in bed for two months and at the suggestion of Dr Earley she was referred to Dr Cheetham by her GP (Dr Masters) for a second opinion. Dr Cheetham visited the family at their home where he saw Miss A for a short time (around 10 minutes) and discussed the history and present position with her parents. Dr Cheetham reported to the GP in a letter dated 5 June 1997 in which he said (amongst other things):
"We both know that I did a domicillary on this child yesterday………
I met [the father] downstairs and from time to time there were small crying noises from the room upstairs. After a period [the mother] joined us and then we went upstairs to have a look at Miss A who was lying in bed with her eyes half open making continuing voluntary movements of arms, back and leg. Every so often she cried. She spoke in a weak and complaining voice.
It was possible to engage her in conversation. When I did this she started to speak in a more normal voice but after a bit her parents would interrupt a question I would ask her, and that would have the effect of making her cry and retreat into the small complaining voice again.
The whole episode was quite distressing.
I advised that Miss A should be admitted to hospital and that she should have a planned gradual rehabilitation programme and this advice has not been accepted. I was told that Doctor Speight , a paediatrician in Durham had been contacted and had advised that hospital admission was contra indicated.
Since visiting the home I have tried to telephone Doctor Speight and discovered that he is on annual leave and he will be back next week and I will telephone him then.
I have telephoned [the father] to tell him what has happened. He then introduced the names of other doctors. I have explained to [the father] that I am pleased to try and help with Miss A. However, if whenever I suggest a course of action, he says that another doctor disagrees with that course of action, it then becomes imperative upon him to seek the advice of that doctor properly and professionally. I think that he understood the force of that argument and he has promised to give me the names of any other doctors who he thinks will disagree with my proposed course of action. I propose to telephone him early next week."
- As appears from that letter the family had already contacted Dr Speight who had advised that hospital admission as recommended by Dr Cheetham was contra indicated. I also note that the approach of Dr Cheetham to doctors who it was said disagreed with him was that their advice should be sought on a proper and professional basis and not that it should not be sought at all.
- It is apparent that the family much preferred Dr Speight's advice. It is also clear from the minutes of the CPC held on 21 July 1997 (pursuant to a referral on 8 July 1997) and the comments made by the parents on those minutes that over the period leading up to Dr Cheetham's visit in early 1997, and after it, problems had arisen between Miss A's parents and health professionals in their area. I make this point neutrally and its inclusion is not to be taken as a criticism of the parents or the health professionals.
- The disagreement of Miss A's parents with the treatment proposed by Dr Cheetham is shown by a letter dated 11 June 1997 from them to Dr Cheetham. This is the first letter referred to in the Charge List. By it the parents make clear that they do not want Dr Cheetham or Wycombe Hospital to be involved in the treatment of their daughter. They say:
"My wife and I have decided that we no longer wish your involvement, nor the involvement of Wycombe General Hospital in the treatment of our daughter [Miss A] with effect from today. We shall continue [Miss A's] care under that provided by Dr Masters and his team at Highfield. I have today spoken with Dr Masters and he is aware of the position."
- Dr Cheetham replied on 12 June 1997 and this is the second letter referred to in the Charge List and in it he said that he would have no intention of trying to see, or treat, Miss A against the wishes of the family but that he had very serious concerns about her and if others asked his opinion as to what should be done for Miss A he would of course give his professional opinion on the basis of what he knew. On 7 July 1997 the Deputy Chief executive of the NHS Health Trust responsible for Wycombe Hospital wrote to Miss A's parents stating (amongst other things):
'I understand that you do not want Doctor Cheetham to have any professional contact with your daughter, or any professional involvement with her medical treatment. Also you do not want the South Buckinghamshire NHS Trust to block a referral to a paediatrician outwith the Trust.'
I give you my assurance that your wishes will be respected.
However, as Doctor Cheetham mentioned in his letter dated 12 June 1997 he will give his professional opinion regarding Miss A if he is asked to do so by a fellow professional.
When we received your fax…………….
I am sorry that you and your family are experiencing such distress. May I assure you on behalf of the Trust staff that we all wish to act in Miss A's best interests, with the aim of seeking her make a steady recovery from her debilitating illness."
- On 8 July 1997 Miss A's case was referred to the local authority by her GP's practice. As a result a child protection conference (a CPC) was held on 21 July 1997.
- Miss A's parents wrote a long letter dated 25 August 1997 commenting on the minutes of the CPC held on 21 July. In that letter Miss A's parents expressed their disagreement with parts of these minutes. I have accordingly read them with the comments made by Miss A's parents in their letter of 25 August 1997 in mind. Naturally I am not in a position to resolve the differences between these two records of what occurred at the CPC held on 21 July 1997.
- At the start of the minutes of the conference held on 21 July 1997 the following passages appear which are not commented on by Miss A's parents in their letter:
"Reason for review
This was the first child protection conference in respect of Miss A.
There has been growing concern expressed by health professionals at Highfield surgery regarding Miss A's health and well-being, this concern has been heightened because the parents have had difficulties in finding a mutually acceptable way forward regarding the treatment and care of Miss A………
Background information
Miss A has a chronic fatigue type illness with symptoms consistent with ME. She is now bed-bound and needs assistance with all basic activities. Miss A does nor attend at school and at present is too weak for home tuition. There have been misunderstandings and differences of opinion regarding her treatment and [her father] has little trust in the professional system thus the family are isolated.
Views put forward by parties involved
Viv Dacre, social worker, presented her social work report to the conference (see attached). She reiterated that she had not been able to see Miss A as [her father] did not want her to……
Dr Nigel Masters, GP, then addressed the conference giving the history of his involvement. He described it as an overwhelming case. He stated that Dr Maxim began to see Miss A six weeks ago. She had been seen by Dr Earley (consultant paediatrician) ay Wycombe General Hospital but no further diagnosis was made. Miss A got progressively worse being confined to her bed eventually. During which time she was visited by Dr Cheetham (consultant paediatrician). He explained that his main concern was to keep the channels of communication open and that he had referred Miss A to the Brakespeare Hospital but Bucks Health Authority would not fund it. No firm diagnosis had actually been made however Dr Masters believed the illness to be some form of sommetisation disorder or chronic fatigue disorder.
[The father] felt that this was not the correct diagnosis and while Miss A needs psychological support she is not suffering from some sort of psychiatric disease. Tests have been carried out by Dr Munro which he felt would reveal the cause of the illness…….
Dr Nigel Masters, GP, advised the conference that he had ascertained that Dr Prendergast, consultant psychiatrist at the Great Ormond Street Hospital specialises in the diagnosis and treatment of children with this kind of disorder. In that context he is in a position to call on the advice and intervention of other specialists within the hospital as appropriate………
[The father] after discussion with his wife agreed that Miss A should be referred to Dr Prendergast at Great Ormond Street Hospital."
- The minutes end with two passages under headings 'Summary' and 'Decision' in the following terms:
"SUMMARY
Adrian Collin, Conference Chair summarised the conference as follows:
'This afternoon's child protection conference was attended by both parents. The situation is one of a twelve-year-old girl who has been bed-bound for approximately 2 months further to a protracted period of illness which started with investigations by Dr Earley approximately a year ago. Social Services have been unable to complete an assessment but were aware that there was conflict between [Miss A's] parents and various medical practitioners regarding the management of her illness and appropriate therapy. The outcome of this afternoon's discussion was an undertaking given by [Miss A's] parents that they would support Dr Nigel Masters' referral to Dr Prendergast consultant psychiatrist at Great Ormond Street Hospital. On taking advice from conference members the chair was of the opinion that Miss A is at risk of significant harm if this course of action is not pursued. In view of this an adjourned initial child protection conference has been arranged for Wednesday 27 August at 4 pm in the Chiltern Social Services office in Room 1. This will go ahead if the proposed referral of Miss A to Great Ormond Street Hospital does not go ahead or the process is complicated in any way that holds up urgent attention of her current situation.
DECISION
The Conference were in agreement that Miss A's name should not be put on the Buckinghamshire child protection register."
- I pause to comment that it seems to me that:
i) the opinion of the Chair that is so recorded was clearly justified on the information then available and this was not disputed before me, and
ii) the refusal of treatment at Wycombe Hospital and the very serious condition of Miss A meant that this was a case that contained a number of the characteristics of cases in which a local authority might properly decide to register a child in the Child Protection Register and further or alternatively might properly decide to issue proceedings under Part IV of the Children Act.
- In their comments on those minutes the parents of Miss A say amongst other things :
"We believe that the composition of the conference was heavily biased and that opinions had already been formed by those present at the conference. Had all invitees attended the conference we would have been outnumbered 19:2. The only representative that could support our position about the hitherto management of our daughter's condition, namely Dr Munro, had been refused payment of her fee after Social Services originally agreed to it. Our only requested representation had therefore been denied us.
The minutes of the conference are peppered with references to Dr Munro as the 'complimentary medicine doctor.' For the record I would like the following facts to be recorded:
Dr Jean Munro MB, BS, MRCS, LRCP, FAAEM, DIBEM, NACOEM
Dr Jean Munro is a qualified doctor and medical director of the Brakespeare Hospital. The hospital has an excellent reputation specialising in the treatment of Allergy in Environmental Medicine. Some 75% of all patients attending the Brakespeare are referred by Health Authorities all over the United Kingdom on a fully funded basis.
We refer to the question of the purported complaint against Dr Cheetham which is minuted. We reaffirm that we have made no formal complaint against Dr Cheetham and we have a written acknowledgement from South Bucks NHS Trust to this effect. However we would confirm that according to the statements made to us by Ms Suggate and Dr Masters, Dr Cheetham had actually blocked Social Services and other medical services when Miss A first became acutely ill and the family were in severe difficulties. We do not understand why he did this, and we still think it was a strange act. This was one of the reasons why there had been so much tension between the family and Dr Cheetham, and which subsequently led to us asking him not to be involved with the case. Dr Masters confirmed to the conference Dr Cheetham had indeed blocked these services, but this important information is not recorded in the minutes. It is all the more important to put this on record, since recent correspondence from Dr Cheetham to Dr Speight attempts to discredit Dr Speight's report, and at the same time, the character of [the father] with some of the most bizarre and inconceivable statements."
- I pause to comment that these comments indicate that there was considerable tension between Miss A's parents and in particular those who were suggesting treatment and management with which they did not agree. In particular it appears that there were earlier tensions and problems between Dr Cheetham and the family when Miss A first became ill. These were not gone into before me or (as I understand it) the PCC.
- Returning to the comments of Miss A's parents their letter also includes the following:
"It is incorrect that we agreed for Miss A to be treated at Great Ormond Street Hospital without qualification. Our agreement was predicated on the treatment that would be offered. We said on a number of occasions that that before finally agreeing to this we would have to agree the treatment. The minutes do not reflect this. We continue to assert that we believe that our daughter's illness is organic and as such it would be inappropriate for treatment to take place in a psychiatric unit. We believe that her illness (which has been diagnosed as ME/CFS) should be managed in primary care since there is no medically defined curative treatment for the condition. In terms of physiotherapy in the form of graded exercise, we again confirm that we originally requested Dr Earley to enrol Miss A in a ME rehabilitation course conducted at Amersham General Hospital. Miss A reacted very badly to exercise (this is not a critical statement of those physiotherapists involved whom we are sure do gentle exercise) but more of a reflection of her particular physical state at the time. We have a completely open mind about physiotherapy at an appropriate time in the future, but fear that at this precise moment further attempts at physiotherapy might actually be harmful. There is much written to substantiate these views (see quotation and references). We have absolutely no objection for Miss A to be under the care of a consultant paediatrician who is sympathetic to the belief that her illness is primarily organic."
- It is apparent from Dr Cheetham's letter dated 5 June 1997 (see paragraph 61 above) that Dr Speight had been contacted before Dr Cheetham's visit in June 1997, and after the first CPC in July 1997 the GP (Dr Masters) wrote to Dr Speight on 23 July 1997 setting out the problems that existed and Dr Speight visited the family home on Saturday 2 August 1997. The letter from the GP is not in the bundle.
- Dr Speight reported to the GP by a letter dated 5 August 1997 which he copied to (amongst others) the parents and Dr Cheetham. Dr Speight's report sets out a history of Miss A's illness and ends with the following paragraphs:
"My belief for what it is worth is that Miss A is a reasonably classic case of ME/CFS and that this is as already stated a genuine organic and extremely unpleasant condition. Starting from this viewpoint, I have to say that the evidence for psychological disturbance in either Miss A or her parents is extraordinarily thin. They strike me as a normal family with normal inter-relationships, with the parents acting in a normal protecting manner to care for a daughter who is really quite ill. I do not see any indication for referral to child psychiatry, especially to a child psychiatrist who disbelieves in ME as an organic entity. I certainly do not think that to attempt to enforce child psychiatry on this family against their wishes is likely to be a constructive course of action and I would regard further steps down the child protection road as entirely inappropriate.
Regarding management I have already stated that I start from a position of basic therapeutic nihilism. Having said that, amitriptyline can be quite rewarding in many cases. Occasionally I find fluoxetine helpful in the very severe cases. I am basically agnostic on much of the alternative medical therapies as recommended by Dr Munro et al. I usually tell my patients that I have no objection to them shopping around alternative therapists as long as they don't waste too much of their money. I am always delighted when someone else cures my patients!
As you can see from the above, I think it will be in everyone's interests if the recent conflict can be damped down and defused. Certainly the parents are happy to cease hostilities. I think Miss A deserves the care of a consultant paediatrician in her own area for the next year or two. The family were quite happy with Dr Earley's initial involvement and it might be that they could be brought together again. Naturally it would be inappropriate for me to be the main source of support for this family in view of distance but naturally I would be happy to discuss her with anyone at any stage if this would be helpful. I wish you luck in her further management and hope that she had a nice summer holiday. I enclose a brief handout I have written on this condition for your interest."
- Dr Cheetham replied to Dr Speight by a letter dated 13 August 1997 (which is the third letter referred to in the Charge List). To my mind this letter from Dr Cheetham raises important issues relating to child protection. It is in robust terms as indeed was the letter from Dr Speight. Miss A and her parents take what is described in the Applicant's skeleton argument as major objection to the tone of, and to some of the content of, this letter but it was not asserted before me that the letter does not express Dr Cheetham's views. Given the relevance and importance of those views to child protection issues I find it difficult to see how Dr Cheetham could have responded to Dr Speight's letter (which was copied to him amongst others) without referring to them. Also, and although some of the criticisms of Dr Cheetham's language are accepted, in my view it would be extremely difficult (if not impossible) to make such views known in terms that would not, or would not be likely to, offend Miss A's family if they were passed on to them. It was not Dr Cheetham who provided a copy of his letter to Miss A's parents although Dr Speight had copied his letter to them.
- It follows from what I have said that in my view this letter of 13 August 1997 from Dr Cheetham contained information that was relevant to the CPC due to be held on 27 August 1997 because Miss A was not being referred to Great Ormond Street Hospital. This was accepted before me by counsel for the Applicant.
- Further in his skeleton argument counsel for the Applicant stated that Miss A did not object that Dr Cheetham wrote to Dr Speight at this stage and in his oral submissions, it was not asserted that Dr Cheetham had acted wrongly or unjustifiably in writing this letter. In my view counsel was correct to accept this.
- The only remaining objections were therefore to the tone of that letter and to some of its content.
- This was not the position of Miss A and her parents before the PCC. For example, this is demonstrated by the advice of the legal assessor (which was agreed by the legal representatives of the parents and Dr Cheetham) where he says that:
"The effect of the case as alleged in para 4(a) is that Dr Cheetham sought to influence the course of Miss A's clinical management after 11 June 1997 when he was no longer Miss A's doctor and that such conduct was improper by virtue of para 4 (b) (i) to (iv) [ - of the Charge list - ]"
"In relation specifically to Dr Cheetham's letter of 13 August 1997 to Dr Speight an alternative approach to the question of justifiable intervention arises under Section 47 of the Children Act."
This shows that before the PCC it was said that by seeking to influence the management of Miss A's treatment after 11 June 1997 by amongst other things writing the letter of 13 August Dr Cheetham acted improperly.
- Further in the judicial review claim form it was asserted that it was important that:
"Dr Cheetham repeatedly sought to influence Miss A's treatment on a number of occasions over a two year period"
and although it was asserted that the CPC on 27 August 1997 was one of the significant changes in circumstances in that period, in the Claim Form it was still being asserted that Dr Cheetham had acted improperly by writing the letter of 13 August 1997.
- What I regard as being a correct change of position at the hearing before me in respect of the letter of 13 August 1997 is of significance because it is also an acceptance that the letter of 11 June 1997 by which Miss A's parents made it clear that they did not want Dr Cheetham or Wycombe Hospital to be involved in the treatment of their daughter does not mean that Dr Cheetham cannot properly raise points in respect of that treatment. This acceptance is correct and undermines an important point in the earlier arguments and position of Miss A and her parents namely that following the letter of 11 June 1997 Dr Cheetham had no good or reasonable cause to act as he did.
- It was also alleged in the judicial review claim form that the CPC on 27 August found that:
"Miss A was under no risk of significant harm and therefore removed any justification for intervention after that date"
and it was asserted that:
"Any possible justification under section 47 of the Children Act 1989 is limited to co-operation with the body charged with dealing with the concerns (here the social services authority). Once the concerns in question have been considered (and rejected as groundless) by that body, there could be no justification for the doctor in question seeking to influence matters as Dr Cheetham did here."
- As to those assertions I comment that:
i) as is now in my view correctly accepted Dr Cheetham was not confined to communicating or co-operating only with the local authority in respect of issues relevant to the CPC, and
ii) they reflect a misunderstanding and thus a misrepresentation of the decision of the CPC and the position on the ground following that decision.
These points undermine important elements in the arguments and position of Miss A and her parents before the PCC and on this judicial review. This is because (a) the first is an acceptance that if Dr Cheetham had a reasonable cause to raise issues relating to the treatment of Miss A it would not necessarily be improper for him to raise them with persons other than the local authority, and (b) the second means that child protection issues relating to Miss A in which I consider Dr Cheetham had an understandable and legitimate interest remained in being after the CPC.
- The papers before me do not contain a letter from Miss A's parents commenting on the minutes of the CPC held on 27 August 1997. In my view the passages at the end of the minutes of that conference under the headings 'Summary' and 'Registration / Decision' need to be read in full and in their context and thus with knowledge of the background to that adjourned conference. Those parts of the minutes read as follows:
"SUMMARY
Adrian Collin, Chair, summarised the conference as follows.
This afternoon's reconvened initial child protection conference went ahead according to the proviso made at the meeting on 21 July that if the plans made at the July meeting were not followed through, or if any problem arose the conference would be re-convened. This happened because the original plan for referral of Miss A to Great Ormond Street Hospital was overtaken by an initiative promoted by [Miss A's father] to involve Dr Speight, paediatrician with a specialist interest in ME. He has now seen Miss A and inter alia advises continued management of her care at home with advice from a local paediatrician. With regard to the latter there is a problem. Although it was reported that there is some obvious improvement in Miss A's condition she is nevertheless still bed-bound and removal from the bed to use the commode involves great effort and discomfort.
With regard to the possible risk of significant harm, and its implications for registration, the conference members were agreed that in this case registration would be inappropriate. Nevertheless, a co-ordinated and multi-disciplinary approach to Miss A's situation was called for and after careful discussion was agreed, with the support of [the parents] that Social Services should play a particular role in co-ordinating this process. The ownership for medical management of Miss A's condition clearly rests with Dr Nigel Masters the family GP. The planning process should increasingly involve Miss A as part of her rehabilitation. There are a number of medical issues to be addressed including the diagnosis and treatment of urinary symptoms, planning for appropriate physiotherapy in manageable stages etc etc. Appropriate educational input needs to be planned further to the home tuition anticipated with Mrs Egerton. The Sir William Ramsay School was considered a placement to be geared to and experienced in the support of children with special needs. Concern also focussed on securing appropriate social stimulation for Miss A from her own peer group.
REGISTRATION/DECISION
The conference members were agreed that Miss A's name should not be included on the Buckinghamshire Child Protection Register."
- It is clear that at this conference the local authority were faced with a difficult situation. To my mind the conclusion reached that Miss A should not be registered on the Child Protection Register (and thus inevitably that public law proceedings should not be commenced) is obviously one that was made in the context of the decision that a co-ordinated and multi disciplinary approach was called for and that social services should play a part in that approach. Inevitably part of that approach would be a consideration of the involvement of a local paediatrician (as recommended by Dr Speight and as to which the minutes record the recognition of a problem) and regular reviews of Miss A's health and the general situation relating to her care and welfare.
- Thus although this decision of the local authority was a watershed in that it was decided to take the route recommended by Dr Speight and supported by the parents, in my view it was not (and was not based on) either (a) a conclusion that Miss A was under no risk of significant harm, or (b) the concerns in question (i.e. those relating to the choice of management) were groundless. Rather in my view it is a proper recognition by the local authority of:
i) the differences in medical opinion and the very great difficulties and tensions that would arise in this family if the approach recommended by Dr Speight was not followed at that stage,
ii) the points that Miss A was not "Gillick competent" but had views and that her parents had parental responsibility for her and with it the ability and responsibility to make decisions as to her treatment, and
iii) the point that the method of management recommended by Dr Speight and agreed to by the parents should be reviewed and combined with a multi- disciplinary approach.
- Naturally the point that there was to be a multi-disciplinary approach and review does not mean that it was likely that there would be, or should be, a change from the general approach recommended by Dr Speight to that recommended by Dr Cheetham. For example, as anticipated as a possibility, a local paediatrician was not retained to give advice but this did not lead to a substantial change because, as I understand it, the GP continued Miss A's management at home with the help of advice from Dr Speight who also visited from time to time. But it is inherent in the decision made at the CPC:
(i) that if satisfactory progress was not made consideration would have to be given to making changes or additions to the approach being adopted, to taking a different course and to the issue of registering Miss A on the Child Protection Register and/or taking proceedings under Part IV, and
(ii) that comments of those like Dr Cheetham who had been involved in the CPCs, and of others, relating to the care and progress of Miss A should be considered by the local authority (indeed this would have been so even if the local authority had not decided to continue to take an active part in the lives of the family).
- In other words, and as is demonstrated by the continued agreed involvement of the local authority, this decision does not amount to a decision by the local authority to close the case and leave everything to the family and the treating doctors chosen by them.
- Naturally this decision at the CPC was important. Further it would have been a great relief to Miss A's parents and was understandably regarded by them as a vindication or confirmation of the stance they had taken relating to their daughter's treatment. Indeed it was a decision that that approach should be adopted. But in my view it is wrong for Miss A and her parents to seek to rely on it:
i) in the manner set out in the judicial review claim form, and thus as a decision that the "concerns in question were groundless" on the basis that the family could, and should be left to, follow the treatment and management of Miss A's illness that they preferred and had chosen (or otherwise),
ii) as something that brought to an end the welfare concerns of the local authority and others outside the family and the treating doctors, or
iii) as something which meant that those who had been involved and had expressed views on the treatment and management of Miss A's illness contrary to the choice made at the CPC could not justifiably raise the same or other points in the future with the local authority or other appropriate persons or bodies.
- Looking at the position from Dr Cheetham's position he, like others, was very concerned about Miss A's welfare, he had properly been involved in the decision making process of the local authority and the decision taken by them, as the relevant public authority, was not in line with the course of action which he as a paediatrician believed was likely to best promote Miss A's welfare.
- To my mind it follows that as and when Dr Cheetham heard about, or was asked about, or thought about Miss A, he would be anxious to see whether she was improving and/or whether assertions which in his view were appropriate and correct were being made about for example test results, her condition or her progress. In my view this is the natural and very understandable reaction of a paediatrician in Dr Cheetham's position and the statement of Professor Hall supports this conclusion.
- The actions after the second CPC relied on by Miss A's parents in support of the charge of serious professional misconduct against Dr Cheetham appear in the Charge List. All of them were admitted or found proved except the matter in paragraph 4 (b)(iii). I should add by reference to the bundle before the PCC that:
i) On 10 October 1997, the chief executive of the NHS Trust wrote to Miss A's parents stating that Dr Cheetham would not become professionally involved with Miss A against their wishes, regretting any offence caused and stating that, as they all were, Dr Cheetham was extremely concerned about Miss A's illness and only had her welfare in mind.
ii) The letters of 18 November and 2 December 1997 were copied to Mr Collin the Care Manager Co-ordinator at the local authority as was Dr Munro's reply to the letter of 18 November in which she did not concur with the views Dr Cheetham had expressed to her and said that unfortunately she was precluded from involving him in Miss A's case by instruction from her father.
iii) On 21 November 1997 Dr Maratos, who is a consultant psychiatrist, at the Child Mental Health Clinic in High Wycombe wrote to Mr Collin with copies to the GP (Dr Masters), Dr Stillwell the SCMO, Community Child Health Department at the NHS Trust (who had attended the CPCs) and to Dr Cheetham asking Mr Collin to consider convening a CPC in respect of Miss A.
iv) On 12 March 1998 Miss A's father wrote to the Chief Executive of the NHS Trust (Mr Darby) referring to earlier letters and telephone calls and his receipt of medical files of the NHS Trust. He complained of interventions by Dr Cheetham which he asserted were in breach of medical ethics. He also asserted that Dr Speight had not been informed that Dr Maratos had asked the local authority to convene a CPC (which is surprising because in considering that request one would have expected the local authority directly or through the GP to raise it with Dr Speight). He also asserted that Dr Maratos had not seen Miss A and that his assertion that she was deteriorating was misleading and wrong. On 11 May Mr Darby responded that Dr Cheetham and no other members of the NHS Trust staff would have further involvement in Miss A's treatment (my emphasis) except in an emergency.
v) In early January 1999 Dr Cheetham had a meeting with Dr Maratos to discuss Miss A and told the NHS Trust about this by writing to Mr Griffiths the Director of Corporate Business on 19 January 1999 (see paragraph 3(f)(i) of the Charge List. The letter of 29 January 1999 referred to in paragraph 3 (f)(ii) of the Charge List from Dr Cheetham to Mr Griffiths copied a letter dated 25 January 1999 from Dr Maratos to Dr Cheetham with the comment that Dr Maratos shared Dr Cheetham's extreme concern about Miss A. The letter from Dr Maratos dated 25 January 1999 contains a history of his involvement. This history shows (a) that he had some contact with the GP he wrote to the local authority in November 1997 asking them to convene a further CPC (this is the letter referred to in subparagraph (iii) above and it confirms that Dr Maratos had had some contact with the GP and that his request was in part based on information obtained from the GP), and (b) that after he was told by the local authority in January 1998 that there was no intention of reactivating the child protection proceedings, Dr Maratos had responded that the progress the local authority had referred to was in his view way below what could be expected. Towards the end of his letter of 25 January 1999 Dr Maratos gives a description of Miss A's condition which is very troubling and is effectively repeated in the letter of 12 May 1999 referred to in paragraph 3 (f) (iii) of the Charge List which was signed by both Dr Cheetham and Dr Maratos, and contains amongst others things the following:
"Dr Cheetham saw [Miss A] in June 1997 when she had been bed-bound for three weeks. He advised intensive investigation, and a hospital admission, and a programme of rehabilitation, which the family could not accept.
Dr Munro from the Brakespeare Hospital was invited to give an opinion and she defined a number of abnormal pathological results, most of which are not available to us. She has told us that she believed that Miss A's condition was due to the excessive numbers of courses of antibiotics that she had. She also felt that inappropriate homoeopathic treatment had caused deterioration in Miss A's symptoms.
Dr Speight a consultant paediatrician in Durham was involved and said that Miss A had chronic fatigue syndrome. He advised bed-rest and the involvement of a local paediatrician in helping with the problem.
Because [the father] did not wish local staff, other than the GP or his district nurse to become involved there are limited objective records as to what has happened in the intervening 21 months.
A number of staff, particularly community nurses, were very anxious that a child should be at home for a long period of time, unable to do anything and yet there should be no specialist referral treatment. This was deemed to be inappropriate action by [the father] and Social Services were informed, and after an interval a case conference was convened. This conference said that if Miss A had specialist treatment at Great Ormond Street Hospital that there would be no case to answer. The conditions of the case conference were not fulfilled. Dr Speight was consulted and no further medical intervention, or investigation, was instituted. Miss A's case was closed by the Social Services.
Miss A has now been at home, bed-bound, for 2 years. Initially incontinent for a long time she can now sit on a commode to pass urine. She has contact with her parents and grandparents and occasionally nurse volunteer babysitters. She has no contact with contemporaries. She has tuition once a week from a private tutor, but no other formal schooling. She has no specialist medical supervision.
It is likely that this state of affairs is seriously harmful to her. The prolonged bed-rest is likely to have caused permanent weakness to her muscles and bones and the longer that it continues the greater this damage will be.
The lack of any contact with children of the same age will have a profound effect on her ability to relate to others.
Schooling consisting of private tuition for one hour a week is a very poor education.
Accepted medical interventions in a child with this degree of disability will include specialist assessment and a planned programme of rehabilitation, which would be consistently monitored. Such a programme has not been instituted. It is urgently necessary that there is an independent examination and assessment of Miss A by a doctor or team experienced in children who have been diagnosed as having serious chronic fatigue. This 'accepted medical intervention' would be the recommendation of a major report by the Royal College of Physicians, Psychiatrists and General Practitioners (1997). Chapter 10 of this report is devoted to the condition in children."
As I have explained in my view the statement in this letter that Miss A's case was closed by the local authority is incorrect.
vi) Miss A and her parents asserted that this description of her condition was wrong.
- It was argued on behalf of the Applicant that the finding of the PCC as to paragraph 4 (b)(iii) of the Charge List must be based on a conclusion that Dr Cheetham was entitled to act as he did and thus as an acceptance (and finding) that he did seek and obtain access to confidential information. Although I accept that this may reflect the thinking of the PCC in my view this is not clear because (a) the records referred to in paragraph 3 (b)(i) of the Charge List and the correspondence referred to in paragraph 3(f) of the Charge List were records of the NHS Trust employing Dr Cheetham (and Dr Maratos) and although this alleged thinking might apply to those records it also seems to me that the PCC might have thought that Dr Cheetham did not "seek and obtain" such records, and (b) the request referred to in paragraph 3 (b)(ii) was refused. Further to my mind the correspondence referred to in paragraph 3(f) of the Charge List (see paragraph 92(v) above) and the assertion that the description of Miss A's current condition in it was wrong both indicate that Dr Cheetham and Dr Maratos did not obtain access to confidential information about Miss A's ongoing (my emphasis) care as alleged in paragraph 4(b)(iii) of the Charge List.
The Rival Contentions
- The easiest way to explain the rival contentions after oral argument is to start with the position of the GMC. It is that when the charge and the issues before the PCC are correctly identified the PCC did not err in law. In so submitting the GMC accepted that the PCC could have expressed themselves better and in particular that their references to a "right to intervene" should not have been included and should have been replaced by references to a justification for Dr Cheetham's actions or intervention.
- In identifying the nature and extent of the charge and the issues before the PCC, the GMC assert that it is important to remember that the PCC was not concerned with an action for breach of confidence but with a charge of serious professional misconduct. The GMC say that when this is done it can be seen that the nature and effect of the charge and the issues before the PCC were that:
i) the case against Dr Cheetham was that he had no justification for taking any steps to seek to influence the course of Miss A's management after 11 June 1997 (the date of the letter telling him that Miss A's parent did not wish him to be involved in the treatment of Miss A),
ii) the focus of the charge and the issues before the PCC:
(a) was not on the detail of the acts which founded the charge in paragraph 4 (a) of the Charge List of seeking to influence the treatment of Miss A, but
(b) was on intervention per se and thus on whether a reason to justify any intervention, or any of the steps taken, existed,
iii) the issues before the PCC did not extend to a consideration of whether each of the steps taken by Dr Cheetham, and thus the form of his intervention, or the manner in which he sought to influence Miss A's treatment, was justified as being a proportionate response having regard to the competing public interests and his reasons for doing what he did, and
iv) Dr Cheetham's defence was that the steps he took were not improper and were taken because of his concerns for Miss A and because he had reasonable cause to suspect that she was suffering or was likely to suffer significant harm.
- The Applicant accepts that the issues set out above were before the PCC but argues (a) that the charge and the issues as put included allegations as to breach of confidence, and (b) that these allegations were steps on the way to a charge and finding of professional misconduct.
- Thus the Applicant says that the charge and the issues extended to cover a further allegation that if (contrary to the contention of Miss A's parents) Dr Cheetham was found to have (or as the PCC found it was not proved that he did not have) reasonable cause to suspect that Miss A was suffering, or was likely to suffer, significant harm he was nonetheless guilty of serious professional misconduct because what he did was not a proportionate response having regard to his duties of confidence and the competing public interests.
- On that basis the Applicant argued that the finding of the PCC is legally flawed because notwithstanding their conclusion relating to whether Dr Cheetham had reasonable cause to suspect that Miss A was suffering, or was likely to suffer, significant harm (and thus seek to influence her treatment) the manner in which, as the PCC found, he sought to influence Miss A's management and treatment after 11 June 1997, and thus the steps he took as listed in the Charge List, could (not should) have founded a conclusion that he was guilty of serious professional misconduct.
- I shall refer to the argument set out in paragraphs 98 and 99 as the "Breach of Confidence Argument".
- In my judgment this submission of the Applicant is wrong and the GMC's assertion as to the nature and effect of the charge and the issues before the PCC is correct. Thus in my view the Breach of Confidence Argument was not put to the PCC.
- I found this conclusion primarily on (a) the Charge List, (b) the closing submissions of both counsel before the PCC on Day 8 (21 September 2002) and (c) the advice of the legal assessor which was agreed to by both sets of legal advisers. As to that advice although confidentiality is referred to this is not done in the context and detail one would expect if the Applicant is correct. The same can be said of the Charge List. But perhaps most tellingly the final submissions made by counsel acting for the GMC as "prosecutor" (and thus for the reasons I have explained effectively for Miss A's parents) do not deal with the alternative argument based on the detail of the steps taken and why by reference to each case it was said that step was so disproportionate a response that alone, or together with other steps, it founded a finding of serious professional misconduct.
- Counsel for the Applicant drew my attention to a letter from the MDU before the Charge List was formulated but if anything the references therein to breaches of patient confidentiality run counter to his argument when they are read with the formulation of the later Charge List and the submissions before the PCC. Further Counsel drew my attention to the detailed references to the matters complained of and listed in the Charge List in the closing submissions of both sides before the PCC. I agree that there are such references, and that the PCC in their decision letter say that they have considered each head and sub head of charge individually. But such references and consideration are not made or expressed by reference to the alternative basis of establishing the charge that Counsel for Miss A asserts was put before the PCC. Rather they go to the issue whether as was being asserted by counsel for the GMC (and thus in practice Miss A's parents) before the PCC that Dr Cheetham (a) had no reasonable cause for suspecting that Miss A was suffering or was likely to suffer significant harm, and (b) had no good reason for acting as he did based on child protection.
The Applicant's alternative argument
- In the alternative the Applicant argued that if it was found that the Breach of Confidence Argument was not put before the PCC nonetheless this court should hold that the PCC erred in law because they should have had regard to it and thus the points of law on which it is based. In support of this argument I was referred to a number of well known cases on judicial review which were set out in Appendix 1 to the Applicant's skeleton argument in which the passages relied on were cited. I shall not set these out.
- Early in the written argument the question is posed in the following terms by reference to a citation of what is meant by illegality in CCSU v Minister for the Civil Service [1985] AC 374 at 410: "The issue for the Court is thus: did the PCC understand the relevant law and give effect to it?". I would not dispute that but in my view the word "relevant" is important and derives from the citation which refers to the law that regulates the decision making power of the public body.
- In my judgment it is important to remember that what the PCC was charged with doing was to decide whether Dr Cheetham was guilty of serious professional misconduct in the manner alleged and this distinguishes this case from the other cases cited on behalf of the Applicant and means that in this case the relevant law (a) is confined to the issues of law that were relevant to determine the charge and issues as put before the PCC and thus as to whether Dr Cheetham had any justification for the actions that were complained of, and (b) does not extend to cover the issues relating to whether what he did was, or was not, a proportionate response having regard to his duties of confidence and the competing public interests (and thus the Breach of Confidence Argument).
- Put another way in my view the PCC was not under any duty to consider whether the charge of serious professional misconduct could have been advanced and established in an alternative way and therefore a public law challenge on the basis that they erred in law in failing to consider the Breach of Confidence Argument fails.
- As appears later I am also of the view that this alternative argument of the Applicant would fail because in my view the Breach of Confidence Argument would have been doomed to failure.
The short answer
- As mentioned earlier in this judgment (see paragraph 8) in my view there is a short answer to the challenge of the Applicant and it is that for the reasons set out under the previous heading the Breach of Confidence Argument was not put to the PCC.
The prospects of establishing serious professional misconduct on the basis of the Breach of Confidence Argument
- As Counsel for the Applicant advanced this argument at length both in writing and orally I feel able to express a view on this point.
- Firstly I record my agreement with the submission made by Counsel for the GMC that in the absence of bad faith or some improper motive or some other special circumstance it is likely that it would be difficult to establish serious professional misconduct on the basis that the actions of a doctor were a disproportionate response and thus in breach of a duty of confidence. Perhaps this is why the charge was not pursued on this basis.
- The finding of the PCC on what they referred to as the overriding principle and potentially the most comprehensive justification for Dr Cheetham's conduct, and thus on whether Dr Cheetham had reasonable cause to suspect that Miss A was suffering or was likely to suffer harm, is expressed in terms of the test they posed by reference to the onus of proof (which was not criticised) but in my view when combined with their reference later to the legitimate concerns of a doctor (i.e. Dr Cheetham) means that the PCC were satisfied that Dr Cheetham acted in good faith and not for an improper purpose.
- In view of that finding in my judgment there was no realistic prospect of establishing that Dr Cheetham had been guilty of serious professional misconduct on the basis of the Breach of Confidence Argument.
- As appears earlier in this judgement in my view the foundations of the Breach of Confidence argument are flawed in two respects, namely:
i) The failure to fully acknowledge that the parents did not have an absolute ability or right to select the treatment that was to be given to Miss A although their views (and those of Miss A) were entitled to great respect.
ii) A misinterpretation of the effect of the decision of the second CPC. As I have explained this did not in my view preclude those who had been involved earlier (and thus Dr Cheetham) from justifiably raising points concerning Miss A's treatment (and thus her welfare) in the future with the local authority or other appropriate persons or bodies.
It seems to me that these flaws underlie the reaction of Miss A and her parents to discovering that Dr Cheetham had taken the steps referred to in the Charge List (see for example the father's letter dated 12 March 1998).
- I accept that as they assert Miss A and her parents were upset and distressed by the discovery of the matters listed in the Charge List even though it appears that they had had no effect on Miss A's treatment after the second CPC. It seems to me that this reflects a view of the family that following the letter of 11 June 1997 (by which the parents made clear that they no longer wanted Dr Cheetham to be involved in the treatment of their daughter) and the second CPC (at which the decision was made to follow the course recommended by Dr Speight) it was necessarily wrong and a breach of Dr Cheetham's duties to them (or as asserted in the letter of 12 March 1998 in direct breach of medical ethics) for Dr Cheetham to do anything further, or to be involved in any way, in respect of the treatment of Miss A.
- Given this view of the family it is understandable that when the family discovered the matters listed in the Charge List they were upset and annoyed but as I have explained it is an incorrect view. Indeed during the hearing Counsel for the Applicant acknowledged this in a number of respects.
- It is to be noted that following his receipt of the letter of 11 June 1997 Dr Cheetham was not involved in the treatment of Miss A and that he did not communicate directly with the family or copy letters to them. Also in his reply to the letter of 11 June 1997, and consistently thereafter, Dr Cheetham made it clear that he would give his professional opinion about Miss A if he was asked about it.
- A product of the view of, and stance taken by, the parents was that Dr Cheetham, Dr Maratos and others at the relevant NHS Trust were not provided with information as to Miss A's progress under the regime of treatment recommended by Dr Speight. As Professor Hall explains in his statement the parents seem to have maintained the view that this information should not be provided to Dr Cheetham and refused to give permission for the GP or Dr Speight to make statements for the purposes of the hearing before the GMC (see paragraph 53 hereof). Thus the PCC and this court were not given details of Miss A's progress even though the parents were asserting that what was being said by Dr Cheetham and Dr Maratos as to Miss A's progress and condition at the end of 1997 and in January 1999 was wrong albeit that in a number of respects these descriptions overlapped with that given of Miss A's position by her solicitor (quoted in paragraph 10 above).
- I agree with Professor Hall when he said that nothing that Dr Cheetham heard about Miss A caused him to modify the level of his concern (see paragraph 12 above). In my view Dr Cheetham's actions and the matters listed in the Charge List need to be considered in this light. In my view the PCC were correct to take into account "all the circumstances relating to Miss A's condition and management as known to you [Dr Cheetham] at the material time and to your integrity, expertise and reputation as a senior paediatrician".
- Turning to the Charge List I have already dealt with the letter to Dr Speight dated 13 August 1997. In my judgment the earlier complaints based on this letter are a reflection of the incorrect view of the family referred to in paragraph 115 hereof.
- In my judgment given his concern and professional opinion it was a proportionate response in the overall public interest for Dr Cheetham to raise and seek to pursue the issue relating to the tests carried out by Dr Munro in the manner referred to in paragraph 3 (b) and (c) of the Charge List. The test results relate to matters concerning the cause and treatment of Miss A's illness which were important issues at the CPCs. It seems to me that Dr Cheetham had a legitimate interest and concern to try to check whether these test results raised anything new and whether he agreed with the interpretation of the tests results and the reliance (if any) being put on them to support a continuation of the treatment regime recommended by Dr Speight. Further it seems from the correspondence that Dr Cheetham's actions were prompted by a letter from Dr Munro that was shown to him by Dr Stillwell (and therefore sent to Dr Stillwell by someone other than Dr Cheetham) and perhaps the same letter sent to Dr Cheetham by the local authority. Also his response was to persons who were well aware of the need to preserve confidentiality and who had been involved (directly or indirectly) in the CPCs.
- The next matters listed in paragraphs 3(d) and (e) of the Charge List follow firstly the correspondence referred to in paragraph 121 hereof and Dr Maratos' letter of 21 November 1997 asking the local authority to convene a further CPC which he copied to a number of people who had been involved in the earlier CPCs and then the father's letter of 12 March 1998 (see paragraph 93 (iii) and (iv)). As the correspondence shows the GP involved himself in, or was involved in, discussions with both Dr Maratos and Dr Cheetham and Dr Maratos had received a letter from Dr Munro dated 9 October 1997. Thus it appears as one would expect following the decision at the second CPC that there was some communication between the doctors who had been involved and, as appears from paragraph 121, between them and the local authority. Given the understanding of Dr Maratos (and Dr Cheetham) relating to (a) Miss A's condition and (b) the concerns of her GP, in my view the request that a further CPC be convened was a proportionate response or step that was justified in the overall public interest. In reaching this view I have not forgotten that the father asserted strongly in his letter of 12 March 1998 that what Dr Maratos said was grossly misleading and that Miss A's condition had improved ten fold since she had been seen by Dr Cheetham, but this was not the understanding of Dr Maratos and Dr Cheetham and their understanding founded continuing serious issues relating to the welfare of Miss A which in my view merited full and proper consideration by amongst others senior officers of the local authority.
- I do not have the documents recording what was done as a result of the request by Dr Maratos. The underlying dispute which gave rise to, or continued the tension, was as to the treatment Miss A should receive. As I have said I find it surprising that as the father asserted Dr Speight was not consulted by the local authority in connection with this request. Further I am unclear what discussion took place between the local authority and (a) the GP and (b) the family in respect of it before the father spoke to the social worker shortly before he wrote his letter in March 1998. However the correspondence reveals that it was the view of Dr Maratos that the progress of Miss A that a Mrs Vale of the local authority told him about was way below what could be expected. It is thus unsurprising that he and Dr Cheetham were concerned.
- As I have said it is understandable given his view at the time that Miss A's father wrote as he did in March 1998. That letter and Dr Cheetham's assertion in his letter of 15 May 1998 that he would tell a worried neighbour what he thought demonstrate the tension, upset and difficulties that then existed. It was not asserted that Dr Cheetham spoke to neighbours. In my view in the circumstances surrounding them there is no realistic possibility that the actions of Dr Cheetham listed in paragraphs 3(d) and (e) of the Charge List could found a charge of serious professional misconduct. Indeed on the information before me I am of the view that they are within the range of actions that were proportionate and justified in the overall public interest.
- I accept that (a) hindsight is a marvellous thing, (b) at the time that there was considerable tension and upset, (c) I do not know the detail of the steps taken by the local authority, (d) the decision at the second CPC had been taken fairly recently and (e) on my assumptions if there had been a further CPC the decision that Miss A should have the treatment recommended by Dr Speight and supported by the family would have been confirmed. But it seems to me that considerable distress and difficulties for both the family and Dr Cheetham might well have been avoided if, at that stage, legal advice had been taken by those involved and there had either been a further CPC or a meeting attended by senior officers of the local authority, Dr Maratos and/or Dr Cheetham, the treating doctors and the parents (if they wished to attend) to consider the request made by Dr Maratos. On the assumption that the decision referred to above would have been made it seems to me that that meeting should have addressed amongst other things (a) what progress Dr Speight would expect and what if anything would cause him to consider that a change in the treatment regime would be appropriate or should be considered, (b) the monitoring, review and assessment of Miss A's progress and who was to be involved therein, and (c) the roles (if any) of the participants (and others) in such matters in the future, and thus who were to be the decision makers.
- I appreciate that at the time (a) due to confidentiality issues and the stance of the parents the local authority were faced with difficulties as to what they should disclose to non treating doctors, and (b) the family would have been vehemently opposed to discussion of a change in treatment regime. But in my view the course of action referred to in paragraph 125 was warranted and could have had considerable benefits not least to the family.
- The matters listed in paragraph 3(f) of the Charge List are in large measure a repeat of the matters discussed above save that the relevant communications are internal to the NHS Trust. Again in my view the understanding of Dr Cheetham and Dr Maratos of Miss A's condition and progress (which is disputed) warranted them taking steps with a view to the welfare issue that understanding raised being addressed. If I have a criticism at this stage it is that the issues they raised were not taken up with the local authority. It follows that in my judgment on the information before me the internal steps taken by Dr Cheetham were within the range of actions that constituted a proportionate response that was justified in the overall public interest.
- If the meeting I refer to above had taken place this correspondence with Mr Griffiths may never have taken place and the underlying issues would either never have been raised because of, or would have been dealt with in accordance with the structure agreed at that time. For example that could have included a clear absolution of Dr Cheetham and Dr Maratos from any responsibility in respect of the welfare of Miss A on the basis of a system for monitoring and review of her progress that was satisfactory to them or which they were advised they had to accept absent an application to court.
Some general observations
- The underlying problems in this case was that Miss A was seriously ill and there was disagreement as to what was the best form of treatment. However, as reflected in the decision at the second CPC there was clearly a need to monitor and consider Miss A's progress. This is inherent in the underlying problems and would be the case even if there had not been a dispute as to what was the best regime of treatment. The existence of that dispute heightened the need to consider at appropriate times whether there should be changes in, or a wholesale change of, the treatment regime both for purely medical reasons and for those and other welfare and developmental reasons.
- The view of the family was that Dr Cheetham (and others) should defer to their decision and that of the second CPC as to the treatment regime that should be adopted and that therefore they should not take any steps to seek to influence Miss A's treatment or, as appears from the nature of the matters listed in the Charge List, to invite the GP, Dr Speight or the local authority to reconsider their positions notwithstanding (a) the view of Dr Cheetham (which was shared by many other doctors that the regime adopted was not the most appropriate one), (b) the lack of information to him or another doctor sympathetic to his view concerning Miss A's progress, and (c) the lack of a clear and defined system of review of Miss A's progress and treatment in which proper consideration was given to the competing views advocated on the one side by Dr Speight and on the other by Dr Cheetham.
- I accept that in some cases once a choice of treatment has been made the doctors who were against it should leave everything to the treating doctors and not involve themselves again. Further I accept that generally it would not be proper to seek a change in the treatment of a child simply as the vehicle for the continuation of a professional disagreement. In my view it is clear that this is not what Dr Cheetham was doing, and that this is not such a case. My main reasons for those conclusions are:
i) The seriousness of the effects of Miss A's illness and of her being confined to her bed at home. In my view one only has to read the description of her condition set out by her solicitor (and the disputed descriptions thereof in letters from Dr Cheetham and Dr Maratos) to realise that significant and serious welfare issues existed in this case and that some of them flow from, or are increased by, the treatment regime that was chosen. That is not to say that the alternative treatment regime would not create or increase other serious welfare issues, not least because it was strongly opposed by the parents.
ii) The common ground that the cause or causes of Miss A's illness are not known.
iii) The points made above that Miss A and her parents do not have the autonomy that an adult patient of sound mind has to choose her treatment although their views are entitled to respect.
iv) The points made above in respect of the roles and powers of the local authority and the court concerning the choice of Miss A's treatment.
v) The need to monitor Miss A's progress and to consider in the light thereof and in circumstances in which the competing professional views on treatment can be considered properly whether there should be changes.
vi) The absence a clear system and decision making process for such a review.
vii) The obvious and understandable concern of a paediatrician such as Dr Cheetham about Miss A.
- In those circumstances it seems to me that in furtherance of the public interest in promoting the welfare of children it was a proportionate response that was justified in the overall public interest for Dr Cheetham to raise the issues, and to act as, he did. In my view points (v) and (vi) above are important in the circumstances of this case because of the diversity of the competing views on treatment and the strength with which they were held and advocated by the professionals involved. They also lie behind the point I have made earlier that with the benefit of hindsight it may well have been advantageous if issues relating to monitoring and review of Miss A's treatment had been addressed and defined in late 1997 or early 1998 (see paragraph 125 hereof).
- It seems to me that the diversity of the competing views meant that to be properly informed the decision makers as to what should be done from time to time concerning Miss A's treatment (whether they were the parents, the local authority or the court or a combination of them) needed to have regard to the competing professional views. Thus it seems to me that in the absence of the introduction into the review process of a method to consider on a properly informed basis the view advocated by Dr Cheetham (amongst others) in the light of (a) the progress being made by Miss A, and (b) the progress expected by Dr Speight, Dr Cheetham was justified in the overall public interest in acting as he did.
- As mentioned at the beginning of this judgment I was shown some coverage of this case in the press and in discussion on a BMJ webpage. The relevant extracts are set out in the second schedule hereto. In my view although they raise some general points they do not found the assertion that a declaration should be made. I add in respect of the last citation that it seems to me that there are number of distinctions between the position here and that which existed in respect of the Cleveland enquiry. Further in my view it is inappropriate to make a declaration for the following reasons:
i) In my view the PCC did not err in law. As to this I add that I agree that it would have been better if in the decision letter they had not referred to "the right to intervene deriving from the Children Act" or "the right of a doctor with legitimate concerns for his former patient in the special circumstances permitted by law from expressing those concerns" and had expressed themselves only in terms of justification for Dr Cheetham's conduct (as they did when setting out what they described as the overriding principle). But in my view this infelicity of expression does not amount to an error of law by the PCC which should found any relief and thus does not provide a good reason for the making of a declaration.
ii) Understandably given the state of the authorities there was no real dispute as to the underlying principles of law and thus, for example, there was common ground that a judgmental or balancing exercise was called for in deciding whether there had been a breach of a duty of confidence when two competing public interest were engaged.
iii) The judgmental or balancing exercise necessarily has to have regard to the circumstances of the given case and is thus fact sensitive.
iv) A declaration of the underlying principles is unnecessary and would if anything be likely to introduce too rigid an approach to, or a misapplication of, those principles.
- I have set out earlier a number of general factors that are relevant to the judgmental or balancing exercise (see paragraphs 42, 43 and 44). I add that in my judgment in a number of cases doctors are likely to be assisted by, reminding themselves of those points (which should be read with what follows) and that:
i) there is a strong public interest that underlies the duty of confidence they owe in respect of information provided to them in the performance of their professional duties;
ii) the duty of confidence prevents their use or disclosure of confidential material for purposes that have not been expressly or impliedly authorised by the person to whom the duty is owed unless that use or disclosure is justified in the overall public interest;
iii) to determine where the overall public interest lies a judgmental or balancing act has to be performed and this can give rise to difficult and fine issues;
iv) when they are considering using or disclosing confidential information they should consider carefully whether that use has been expressly or impliedly authorised and if not whether they should seek permission from the persons to whom the duty is owed,
v) when considering using or disclosing confidential information without the relevant authorisations they should consider carefully the reasons for this and what they hope to achieve by it. This will provide essential ingredients of the judgmental or balancing exercise, and thus for example the identification of the public interest favouring disclosure and how and the extent to which the information should be used, or to whom it should be disclosed to further that public interest,
v) they should consider who they should inform of any use or disclosure without the appropriate authorisation and when this should be done. In this context they should consider the point that it may be advantageous to confront disputes on disclosure rather than avoid them,
vi) there are substantial differences (a) between internal or inter professional use and disclosure for the purposes of deciding what should be done and use or disclosure involving outsiders, and (b) between disclosures to a person or body who has a duty or interest in promoting a relevant public interest (e.g a local authority) and general publication and for example these affect who should be told of those discussions or disclosures and when this should happen, and
vii) if in doubt they may benefit from legal advice.
- Additionally I mention that although I agree that what the PCC describes as potentially the most comprehensive justification for Dr Cheetham's actions namely whether a doctor has "reasonable cause to suspect that the child concerned is suffering or is likely to suffer significant harm" was an appropriate approach in law in this case based in particular on s. 47 Children Act I do not consider that it should be adopted as the appropriate test in all cases even when disclosure to a local authority is in issue.
- For example, as foreshadowed in paragraph 27 hereof, in my judgment it would not be the correct test when individuals dealing with children and families (e.g. doctors, health visitors, social workers and teachers) acquire information which taken alone may not, or arguably may not, satisfy that test but which might in combination with other information do so or demonstrate that steps should be taken to promote the welfare of a child. In those circumstances the test should reflect this and the point that to promote the welfare of children generally, and individual children, there is a need in the public interest for such persons to volunteer to each other and share information which might when combined with further information show that there is reasonable cause to believe that a child is suffering, or is likely to suffer, significant harm (the trigger for an interim care order under s. 38 Children Act), or that there is reasonable cause to suspect that this is the case (a trigger for a s. 47 investigation) or that it is appropriate to take steps to promote the welfare of a child which fall outside the ambit of specific statutory provisions.
Final comment
- Some of my conclusions and comments will disappoint Miss A and her parents. I would like to repeat that I, like the PCC, am not criticising them (see paragraphs 17 to 19 hereof). I also record that I acknowledge the enormous emotional strain caused to them by Miss A's illness and that on the assumptions I have made I can understand much of the frustration and upset they have felt in connection with Miss A's treatment. But for the reasons I have given I consider that the actions of Dr Cheetham they have complained about were also understandable reactions from his perspective and in the circumstances they were on the information before me within the range of proportionate steps open to Dr Cheetham that were justified in the overall public interest.
The First Schedule referred to in paragraph 54
The Charge List
The Committee will inquire into the following charge against Dr Christopher Henry Cheetham………….
"That being registered under the Medical Act,
- At the relevant times you were a consultant paediatrician employed by the South Buckinghamshire NHS Trust
- a) On 11 June 1997 Mr B wrote to you stating that he and his wife no longer wished your involvement in the treatment of their daughter, Miss A,
b) You replied to that letter on 12 June 1997;
- a) You wrote a letter dated 13 August 1997 to Mr N. Speight, Consultant Paediatrician by then responsible for Miss A's clinical management, in which you expressed your views about Miss A's clinical management and Mr B's psychiatric state.
b) You wrote a letter dated 2 October 1997 to Dr Stillwell, Senior Clinical Medical Officer in which you
i) indicated you had access to Miss A's medical records,
ii) requested a copy of a blood test or a letter relating to Miss A.
c) You wrote a letter dated 18 November and 2 December 1997 expressing disagreement with Dr Jean Munro's interpretation of Miss A's biochemical test results and seeking further information about other tests performed on Miss A, and
d) You wrote a letter dated 3 February 1998 to Mr D. Griffiths, Director of Corporate Business, Oaken Grove in which you indicated that you had discussed Miss A's care with her GP and in which you commented on her GP's proposals for her clinical management.
e) i) You received a letter dated 11 may 1998 from Mr R. Darby, Chief Executive, Oaken Grove, in which he indicated that it was approprate to disengage from Miss A's care and requested that you do not become directly involved in her care
ii) You replied to Mr Darby by letter dated 15 May 1998, in which you gave your opinion on Miss A's current management and expressed a willingness to comment if asked about her to others, including her neighbours,
f) You wrote to Mr D. Griffiths on:
i) 19 January 1999 in which you speculated on Miss A's current condition and commented on her management
ii) 29 January 1999 in which you conveyed detailed comments from Dr Maratos about Miss A's care which you indicated refelected your own 'extreme concern',
iii) 12 May 1999 which included detailed assertions as to events after your direct involvement with Miss A had ended.
iv) 30 July 1999 which included the comment that Miss A's management fell well below accepted professional standards.
- a) You thereby sought to influence the course of Miss A's clinical management after 11 June 1997
b) In doing so you
i) acted without the consent of Miss A or her parents
ii) acted contrary to the expressed wishes of |Miss A's parents,
iii) sought and obtained access to confidential information about Miss A's ongoing care to which you were not entitled,
iv) made assertions about events after 11 June 1997 when you were in an inadequate position in which to verify the accuracy of such assertions;
"And that in relation to the facts alleged you have been guilty of serious professional misconduct."
The second schedule referred to in paragraph 134
Extract from an article by a legal correspondent to the BMJ
"Christopher Cheetham, consultant paediatrician at Wycombe General Hospital, continued to involve himself in the case of the 12 year old girl after her parents, named only as Mr & Mrs B made it clear they no longer wanted him to do so.
Dr Harvey Marcovitch, editor of Archives of Disease in Childhood said the case had caused concern among paediatricians about their child protection role. 'A lot of paediatricians had been contacting the college [The Royal College of Paediatrics and Child Health], saying they have a terrible dilemma when families won't co-operate with them in knowing how far they are allowed to go in spreading information."
Extract from a letter from a freelance journalist
"It would be helpful to see some professional debate around this issue as it could be just one interpretation of the Children Act 1989 that says paediatricians generally have this freedom, which I know some will say may be an invasion of privacy and breach of human rights.
Without seeing the actual transcript of the hearing related to the case against Doctor Cheetham one cannot see just how deeply the GMC went into the balance between privacy and the effective protection of children, and whether it took evidence from child protection and social care experts.
This case seemed to revolve around the right of a paediatrician to maintain access to the medical records of a former patient. How much concern was expressed about the potential risks this ruling might cause a paediatrician not previously entrusted with the clinical care of a child to assume this same right? A doctor might access a child's medical files without authority or prior involvement? Is this acceptable? "
Extract from a letter from a person described as an expert defence witness
" It is reassuring to note that the GMC has reinforced the right of parents to have the medical treatment of their choice for their child.' This needs to be made more widely and prominently known to members of the medical profession.
As in the Cleveland child abuse scandal of 1987, this is an issue of a paediatric diagnosis disputed by medical practitioners and incurring child protection procedures when such a dispute is unresolved. After Cleveland a joint directive was issued by the RCPCH and the Association of Police Surgeons setting out procedures to be followed in such dispute but this appears not to be followed in this instance.
If a paediatrician has concerns regarding a former patient then ethics surely dictate that he should properly make those concerns known to the treating paediatrician and family practitioner, and should accept their 'integrity, expertise and reputation' and their decision as to whether or not there is genuine cause for concern, not bypass their professional judgments and directly invoke child protection procedures.
It is the issue of medical disputes involving child protection procedures, that the GMC and the RCPCH should address and issue clear joint directives in such matters as there are many disabled and chronically sick children and their families in the United Kingdom who are being caught up in similar disputes and like the innocent children and parents in Cleveland suffering the traumas and stigmas of child protection investigations as a consequence."
