Godden v Kent and Medway Strategic Health Authority
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Gray,Mr Justice Gray |
| Judgment Date | 08 July 2004 |
| Neutral Citation | [2004] EWHC 1629 (QB) |
| Docket Number | Case No: HQ04X00736 |
| Court | Queen's Bench Division |
| Date | 08 July 2004 |
[2004] EWHC 1629 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable The Hon. Mr Justice Gray
Case No: HQ04X00736
Philip Havers QC (instructed by Browne Jacobsen, Solicitors) for the First Defendant
Edward Faulks QC and Simon Trigger (instructed by Harman and Harman, Solicitors) for the Claimant
Hearing dates: 29 June 2004
Judgment Approved by the court for handing down (subject to editorial corrections)
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Gray
This is a claim for damages by 31 former patients of a general practitioner named Dr Ayling. The Claimants' case is that Dr Ayling assaulted them, usually indecently, and in some cases treated them negligently in most cases between 1993 and 2000. Dr Ayling was convicted on 20.12.00 of 13 counts of indecent assault and sentenced to four years imprisonment. He has been struck off the Medical Register. Of the 31 Claimants 13 brought proceedings directly against Dr Ayling in the County Court and were awarded damages. The damages have not been paid as yet; Dr Ayling is bankrupt.
By this application, the First Defendant, Kent & Medway Strategic Health Authority, seeks an Order striking out the claim pursuant to CPR Part 3.4(2) on the basis that it discloses no reasonable ground for bringing the claim. The Second Defendant is a partnership, consisting of three GPs who were formerly in partnership with Dr Ayling. The Second Defendant is not a party to the present application.
The statutory history of the First Defendant is as follows: the National Health Service Act, 1977 ("the 1977 Act") established the Kent Family Health Service Authority ("the FHSA"). In 1995 the FHSA was dissolved and replaced by the East Kent Health Authority, to which body all the rights and liabilities of the FHSA passed. In 2002 the East Kent Health Authority was in turn dissolved and all its rights and liabilities passed to the First Defendant.
The scheme of the 1977 Act bears on the present application. It is a consolidating Act of which the stated objective (see section 1) is to continue the promotion of a comprehensive health service to improve health and prevent illness. Part I is entitled "Services and Administration". It deals with the functions of the Secretary of State and provides for central and local administration. Section 10 establishes Family Practitioner Committees.
Part II of the 1977 Act is concerned with General Medical and other Services. Section 29 is in the following terms:
"29 rrangements and regulations for general medical services
(1) It is the duty of every Family Practitioner Committee, in accordance with regulations, to arrange as respects their locality with medical practitioners to provide personal medical services for all persons in the locality who wish to take advantage of the arrangements.
(1A) The services so provided are referred to in this Act as "general medical services".
(2) Regulations may provide for the definition of the personal medical services to be provided and for securing that the arrangements will be such that all person availing themselves of those services will receive adequate personal care and attendance, and the regulations shall include provision -
(a) for the preparation and publication of lists of medical practitioners who undertake to provide general medical services;
(b) for conferring a right on any person to choose, in accordance with the prescribed procedure, the medical practitioner by whom he is to be attended, subject to the consent of the practitioner so chosen and to any prescribed limit on the number of patients to be accepted by any practitioner;
(c) for the distribution among medical practitioners whose names are on the lists of any persons who have indicated a wish to obtain general medical services but who have not made any choice of medical practitioner or have been refused by the practitioner chosen;
(d) for the issue to patients or their personal representatives by medical practitioners providing those services of such certificates as may be prescribed being certificates reasonably required by them under or for the purposes of any enactment;
(e) for the removal from the list of medical practitioners undertaking to provide general medical services for persons in any locality of the name of any one in whose case it has been determined in such manner as may be prescribed that he has never provided, or has ceased to provide, such general medical services for persons in that locality;
(f) for the making of arrangements for the temporary provision of general medical services in the locality of a Family Practitioner Committee;
(g) for the circumstances in which a name added to the list by virtue of subsection (6) below may be removed from it.
(3) Regulations under subsection (2) above may provide for the personal medical services there mentioned to include the provision of, and services connected with, any such advice, examination and treatment as are mentioned in paragraph (b) of section 5(1) above.
(4) The remuneration to be paid under the arrangements mentioned in subsection (1) above to a practitioner who provides general medical services shall not, except in special circumstances, consist wholly or mainly of a fixed salary which has no reference to the number of patients for whom he has undertaken to provide such services.
(5) Regulations shall —
(a) include provision for the making to a medical practitioner providing general medical services of payments in respect of qualifying services provided by a spouse or other relative of his; and
(b) provide that the rates and conditions of payment and the qualifying services in respect of which the payments may be made shall be such as may be determined by the Secretary of State after consultation with such bodies as he may recognise as representing such medical practitioners.
(6) The persons with whom arrangements for the temporary provision of general medical services in a locality may be made by virtue of regulations under subsection (2) above include medical practitioners who are not on the list of medical practitioners providing such services in the locality, and the power to prepare and publish lists of medical practitioners conferred by paragraph (a) of that subsection accordingly includes power to add the names of medical practitioners with whom such arrangements are made to the list.
(7) Regulations may provide that this Act and any regulation made under it shall apply in relation -
(a) to the making of arrangements for the temporary provision of general medical services; and
(b) to the provision of general medical services in pursuance of any such arrangements,
subject to such modifications as may be specified in the regulations.
(8) Where the registration of a medical practitioner in the register of medical practitioners is suspended -
(a) by a direction of the Health Committee of the General Medical council under section 37( 1) or (2) of the Medical Act 1983 (unfitness to practise by reason of physical or mental condition);
(b) by an order of that Committee under section 38(1) of that Act (order for immediate suspension); or
(c) by an interim order of the Preliminary Proceedings Committee of the Council under section 42(3)(b) of that Act,
the suspension shall not terminate any arrangements made with him for the provision of general medical services, but he shall not provide such services in person during the suspension."
Part II also contains at sections 46–49 provisions relating to the disqualification of practitioners but it is not suggested by either party that those provisions are material to this application. Nor does anything turn on the remaining Parts of the Act which deal with such matters as the powers of the Secretary of State, property and finance.
The nature of the case against the First Defendant advanced in the Particulars of Claim is the following: paragraphs 6–8 recite the statutory history of the First Defendant which I have already set out. Paragraphs 9, 10, 16 and 18 contain an allegation of breach of duty on the part of the First Defendant:
"9. Accordingly, at all material times Kent and Medway and/or its predecessors in title were responsible for arranging with practitioners the provision of general personal medical services in the Kent region.
10. The Claimants aver that at all material times Kent and Medway was under a duty owed to all patients of all general practitioners in its area to:
(a) monitor adequately all contracted general practitioners;
(b) take all reasonable steps to ensure that all contracted general practitioners within their area provided a safe and/or competent medical service for patients;
(c) act upon any complaints made and/or concerns raised in respect of a contracted general practitioner within its area and to take all reasonable and/or necessary steps to investigate;
(d) take all reasonable steps to act upon any complaints made and/or concerns raised including but not exclusively a duty to discipline and/or regulate the practice of general practitioners within its area where such investigations revealed and/or ought to have revealed that such discipline and/or regulation was required to ensure patients' safety and/or that a competent health service was provided;
(e) instruct all contracted general practitioners within its area to take all reasonable and/or necessary steps to ensure that patients being treated were reasonably safe and/or were provided with competent medical care;
(f) take all reasonable steps to ensure that all contracted general...
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