JR55 v Northern Ireland Commissioner for Complaints
| Jurisdiction | Northern Ireland |
| Judge | Girvan LJ |
| Judgment Date | 2014 |
| Neutral Citation | [2014] NICA 11 |
| Court | Court of Appeal (Northern Ireland) |
| Year | 2014 |
| Date | 28 January 2014 |
1
Neutral Citation No. [2014] NICA 11 Ref:
GIR8986
Judgment: approved by the Court for handing down Delivered:
28/01/2014
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
BETWEEN
JR55
Applicant/Appellant
and
NORTHERN IRELAND COMMISSIONER FOR COMPLAINTS
Respondent/Respondent
________
Higgins LJ, Girvan LJ, Coghlin LJ
________
GIRVAN LJ
Introduction
[1] This is an appeal from a judgment given and order made by Treacy J
dismissing judicial review proceedings brought by a general medical practitioner
(“the GP”) who challenged a decision of the Northern Ireland Commissioner for
Complaints (“the Commissioner”) made on 8 April 2011 whereby he recommended
that the GP pay to the widow of a deceased patient the sum of £10,000 by way of
what is called a consolatory payment consequent on the death of the patient. In the
proceedings the GP challenges the power of the Commissioner to recommend the
payment of the consolatory payment and he challenges the threatened exercise by
the Commissioner of an asserted power to make a special report in relation to the
matter to the Northern Ireland Assembly in the event of the GP failing to comply
with the recommendation to pay the consolatory payment recommended.
2
[2] Mr Scoffield QC appears on behalf of the GP. Dr McGleenan QC and
Mr McAteer appear for the Commissioner. The court is indebted to counsel for their
clear and helpful submissions.
[3] Treacy J granted the GP anonymity in respect of the proceedings, continuing
the order for anonymity until judgment and pending appeal. We direct a
continuation of that anonymity and impose a restriction on the reporting of the GP’s
name. In the course of this judgment we shall refer to the GP simply as “the GP”, to
the patient as “the patient”, to the patient’s widow as “the complainant”, to the
relevant hospital as “the hospital” and to the relevant Trust as “the Trust”.
Factual background
[4] The relevant factual background to the judicial review proceedings can be
distilled from paragraph 7 et seq of the Commissioner’s Report. The key events may
be summarised as follows:
(a) Although he was clinically asymptomatic at the time, the patient requested
his GP to refer him to have his heart checked. The patient was referred for an
exercise ECG test which the patient attended at the hospital in July 2008. The
test was reported as negative for ischaemic heart disease at the level of
exercise carried out. It noted a poor exercise capacity and that the patient was
hypertensive throughout the test. Although in fact the outcome of the
exercise test was inconclusive the hospital reported it as negative. The GP
took no further action.
(b) The patient attended the practice again on 10 December 2008. He described
chest pain when going upstairs with the pain easing after rest. The GP
recorded in the patient’s note that this was “typical angina pain but there had
been a normal treadmill earlier in the year”.
(c) The patient attended the practice again on 15 December 2008 complaining of
recent onset chest pain when he exercised for the previous 3 weeks. The GP
noted that the pain came on after 200 yards and eased with rest and it was
experienced 4-5 times per week. He also noted that there was no past medical
history of similar pain, that there was no pain at rest and that the pain was
made worse by lifting kegs of beer which the patient had to do in the course
of his work. The GP referred the patient to a clinic at the relevant hospital
called the Rapid Access Chest Pain Clinic (“the RACP clinic”).
(d) The RACP clinic wrote back to the practice on 20 December 2008 outlining
reasons for not giving the patient an appointment. The letter stated that there
had been no ischaemic ECG changes during the previous test and that if the
GP would like further medical review the patient should be referred to
medical outpatients. The letter was scanned into the practice computer on 24
December 2008 but it was not seen or read at that time.
3
(e) The patient attended the practice again on 6 January 2009 enquiring as to why
he had not received an appointment at the clinic. He informed the GP that he
was still experiencing chest pain. The GP decided to refer the patient again
for a treadmill test. However, the patient sadly passed away later that day.
His cause of death was recorded as coronary artery artheroma.
[5] The main elements of the complainant’s complaint against the GP were that
the patient was not informed that his appointment at the clinic had been declined
until he visited the practice of his own volition on 6 January 2009. The complainant
wanted to know why her husband’s appointment was declined by the clinic and
why this was not followed up. Subsequent to the death of the deceased the GP
visited her home on the day that her husband’s body was returned and then
approximately one month later. It was alleged that the GP discouraged the widow
from making a complaint about the practice. The widow also complained that
although the GP had indicated that he would come back to her after contact with
Dr B, a consultant at the relevant hospital, he did not do so. According to the
Commissioner’s report, during the course of the investigation other issues became
apparent, namely whether the GP’s follow up after the patient’s treadmill test in July
2008 might not have been adequate and whether the practice’s treatment of the
patient at the appointment on 6 January 2009 was inadequate.
[6] The complainant had also made a complaint to the Commissioner about the
care and treatment provided to the patient by the relevant Trust which had
responsibility for the hospital. The complainant was particularly concerned about
why, the patient having been referred to the RACP clinic, the clinic had declined the
GP’s request to see the patient.
[7] The Commissioner determined that the patient should have received better
follow up care from his GP following his treadmill test in July 2008. He also
concluded that the action taken by a locum GP in the practice was insufficient in that
no appropriate referral was made regarding the patient’s ongoing chest pain. The
Commissioner was unable to conclude that the sad outcome would have been
altered in any way even if the locum had taken alternative action. The
Commissioner was also critical of the GP’s visits to the widow’s house after her
husband’s death, the practice’s complaints handling procedures and its contact with
Dr B.
[8] The Commissioner’s Report highlighted a number of matters which the
Commissioner considered were shortcomings in the GP’s handling of the patient’s
medical treatment. The Commissioner had the services of an expert medical advisor
described as the GP IPA. The IPA considered that the GP might consider making a
change to his practice by allowing all clinical mail to be rapidly viewed by a GP,
whether locum or principal, in order to decide which actions could wait or should be
prioritised. On 9 February 2011 the GP stated that he now accepted and was
implementing the Commissioner’s proposal that all clinical mail should be rapidly
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