Anthony Dixon v North Bristol NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 19 July 2022 |
| Neutral Citation | [2022] EWHC 1871 (QB) |
| Docket Number | Case No: QB-2022-002007 |
| Court | Queen's Bench Division |
[2022] EWHC 1871 (QB)
THE HONOURABLE Mr Justice Nicklin
Case No: QB-2022-002007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicola Newbegin and Madeline Stanley (instructed by Clyde & Co LLP) for the Claimant
Jeremy Hyam QC (instructed by DAC Beachcroft LLP) for the Defendant
Hearing date: 14 July 2022
Approved Judgment
(Handed down initially in private on 19 July 2022 pending appeal. Handed down in public on 26 July 2022 following confirmation, on 25 July 2022, that the Claimant did not intend to appeal.)
This judgment deals with an application by the Claimant seeking the anonymisation of the parties in this litigation and corresponding reporting restrictions preventing the parties being identified (“the Anonymity Application”).
For reasons that are explained in this judgment, I have refused the Anonymity Application. Unless my decision is reversed on appeal, this judgment will be handed down publicly, removing the anonymity that was granted temporarily (see [17] below).
I was strictly satisfied that the hearing on 14 July 2022 had to be heard in private. I explained my reasons at the hearing, but in summary, a public hearing would have immediately defeated the Anonymity Application mainly as a result of the pre-existing media coverage (see [6]–[7] below).
A: The Parties
The Defendant is an NHS Trust that provides hospital and community healthcare in the areas of Bristol, South Gloucestershire and North Somerset
The Claimant is a general, laparoscopic, and colorectal surgeon. He was employed by the Defendant as a consultant colorectal surgeon from 1 October 1996 until the termination of his employment by the Defendant with effect from 24 June 2019. In addition, the Claimant had practising privileges with, and undertook private work as a consultant colorectal surgeon at the Spire Bristol Hospital between 1 October 1996 and 22 September 2017.
B: Background to the dispute
In his role as a colorectal surgeon, between 2007 and 2017, the Claimant performed a surgical procedure called laparoscopic ventral mesh rectopexy (“LVMR”) on a large number of patients. Concerns were expressed as to these procedures and, in May 2017, the Defendant launched an investigation of the Claimant's performance. Pending that investigation, in August 2017, the Claimant was excluded from practice by the Defendant.
The easiest way of setting out further details of the background, and because one of the issues that I shall need to analyse, when considering the Anonymity Application, is the extent to which details relating to the dispute have been published in the public domain, is for me to set out a relatively recent article that appeared in The Guardian on 26 May 2022 (and which remains available online):
“ Bristol surgeon ‘harmed’ 203 women with unnecessary operations
Anthony Dixon performed pelvic floor surgery instead of offering less invasive alternative treatments
More than 200 women were harmed when a rogue surgeon carried out operations on them unnecessarily, an NHS inquiry has found.
Some of the women were left with life-changing physical problems or unable to work, while many also suffered trauma and serious psychological harm as a result.
Overall, 203 women on whom Anthony Dixon performed procedures between 2007 and 2017 came to harm, according to a review by the North Bristol NHS trust (NBT). Dixon, who for years was Britain's most influential pelvic surgeon, worked for both the trust and the private Spire hospital in the city.
In 2017, NBT launched a review of Dixon's performance and suspended him after dozens of women he had performed procedures on complained that they had experienced appalling consequences, including unmanageable pain and incontinence. The Guardian revealed in late 2017 that 100 women were suing him for medical negligence. Some cases have since been settled, but dozens are ongoing.
NBT sacked Dixon in 2019 and he is currently banned from practising in the UK.
During the review, 378 women were recalled and asked to set out their dealings with Dixon. All had undergone a procedure called laparoscopic ventral mesh rectopexy (LVMR), in which plastic mesh is inserted to repair weakened tissue in the pelvic floor.
In papers presented to NBT's board on Thursday, board members were told that the inquiry had concluded. ‘The trust has notified 203 NHS patients that, although their LVMR operation was carried out satisfactorily, they should have been offered alternative treatments before proceeding to surgery. We have defined these patients as suffering ‘harm’ as a result,’ it said.
The trust set up a clinical advisory group of experts to assess what had happened with each of the 378 women. It found that of the 218 women Dixon had operated on at Southmead hospital, 110 suffered harm. And among another 169 NHS patients on whom he performed LVMR at the Spire hospital, 93 came to harm.
Another 175 women he treated at both facilities suffered no harm and there were also nine other cases in which the clinical advisory group was unable to reach a conclusion.
Luke Trevorrow, a medical negligence specialist solicitor at Irwin Mitchell lawyers, one of the firms representing Dixon's victims, said: 'For many years patients have had serious concerns as to whether procedures they underwent were appropriate. Sadly the trust's own findings have now vindicated these fears.
‘This latest information is incredibly concerning and has caused a great deal of distress for our clients, many of whom continue to experience physical and psychological problems following their surgery.’
The outcome of the inquiry was first reported by the BBC's west health correspondent, Matthew Hill. The trust summarised the findings in a five-page update it included in the 157 pages of papers its board were due to discuss on Thursday. NBT did not alert the media that it was finally publishing details of a major probe it had taken almost five years to complete.
Annette Whiting, 62, from Bristol, one of those on whom Dixon performed LVMR, told the BBC: 'I felt violated. Beyond angry, beyond upset.
‘It affects your everyday life. Your body aches, you have to run to the toilet, you've got no control over it whatsoever.’
The trust said that with regard to the 203 patients ‘harm is defined as undergoing an operation that may not have been required, where other less invasive options could have been offered first, even when the LVMR procedure was performed to the appropriate, clinical standard.’
NBT said it was ‘extremely sorry’ for the suffering Dixon had inflicted by doing LVMRs.
A spokesperson for the General Medical Council, which regulates the medical profession, confirmed that Dixon does not currently have a licence to practise medicine ‘pending [the] conclusion of fitness to practise investigations’.”
The underlined parts of the article contained hyperlinks to further articles that had been published by The Guardian, on 24 November 2017, and the BBC on 26 May 2022 (which also remain accessible online).
In addition to The Guardian article quoted above, there has been significant media reporting of the investigation into the Claimant, his suspension and later dismissal by the Defendant. Some of the media coverage has been exhibited to a witness statement of the Claimant's solicitor (see [30] below). Articles have appeared in several local and national newspapers together with media reports on BBC and ITV news. Of particular significance are those, from June 2019, reporting the termination of the Claimant's employment with the Defendant and, in May 2022, in similar terms to The Guardian article.
The recent reporting, in May 2022, was largely a result of the Defendant releasing publicly a report, titled “ Conclusion of the review and recall of Laparoscopic Ventral Mesh Rectopexy (LVMR) patients”, which named the Claimant and was included in papers for a meeting of the Board of the Defendant on 26 May 2022. The Board papers are published and made available to the public on the Defendant's website.
As noted in The Guardian article, a large number of former patients of the Claimant have brought (or threatened) civil claims arising from their treatment. The Claimant is also currently facing fitness to practise proceedings brought by the General Medical Council. Pending their resolution, his ability to practise is subject to conditions. He also currently does not have a licence to practise. The GMC hearing is schedule for the Autumn 2022.
Since it began its initial investigation into the concerns raised about the Defendant's clinical practice, the Defendant has sent several letters to former patients of the Claimant to give them information about the investigation. That was done, primarily to discharge what the Defendant believed was its duty of candour to those who had raised concerns or those who the Defendant had identified may also have been affected (see further [36] below).
On 6 May 2022, the Defendant sent a letter to the Claimant's solicitors notifying the Claimant that it proposed to make further disclosures in the context of actual and threatened litigation. The letter explained:
“The Trust has considered its duties under the CPR in terms of pre action disclosure, as this is clearly now an issue sitting within litigation (having moved on from duty of candour issues). We now consider that [Document X] in its full content, is potentially relevant to the claims being brought against [the Defendant], where the claimants have undergone pelvic surgery by [the Claimant]. [Document X is] disclosable in the claims process unless privileged. [Document X] is not covered by legal advice privilege, litigation privilege or public interest immunity. In our view...
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Anthony Dixon v North Bristol NHS Trust
...on 19 July 2022 and in public on 26 July 2022) in which I refused the Claimant's application to be anonymised in the proceedings ( [2022] EWHC 1871 (QB)) (“the First Judgment”). I shall use the same definitions in this judgment. The Claimant did not appeal that decision, so that judgment i......