Lakshmi v Mid Cheshire Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judgment Date | 24 April 2008 |
| Neutral Citation | [2008] EWHC 878 (QB) |
| Docket Number | Case No: HQ07X04296 |
| Court | Queen's Bench Division |
| Date | 24 April 2008 |
[2008] EWHC 878 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Case No: HQ07X04296
John Hendy QC Deshpal Panesar For the Claimant
Andrew Hillier QC Giles Powell For the Defendant
Hearing dates: 25 th– 28 th February 2008
NARRATIVE
I shall not recite all of the facts of this case. It is unnecessary to do so, particularly as the chronology is essentially agreed and excess detail can obfuscate rather than bring clarity. However, it is necessary to set out the salient matters in order to make this Judgment intelligible. References to documents will either be to the page of the trial bundle [TB] or core bundle [CB]. References to statements [S] will be to the paragraph number. Where there is a dispute of fact I will say which version I prefer, and why, during the course of the narrative.
Dr Vijaya Lakshmi (Dr L), the Claimant, is a Consultant Physician. Since January 1998 she has been in the employ of the Defendants, the Mid Cheshire Hospitals NHS Trust (the Trust). The matters that concern this case all occurred at the Leighton Hospital, although Dr L had responsibilities at the Victoria Infirmary, Northwich. Her contract of employment is at [CB 73].
In the winter of 2005, said Dr L, she found it difficult to visit the Crematorium of her Hospital in order to complete Form C of the Cremation Act Certificate. A blank copy of such a certificate is found at [CB 100]. The Cremation Act certificate comes in three stages. The first is a certification from the treating doctor (the “medical attendant”) to the effect that he or she knows of no reasonable cause to suspect that the deceased died a violent or an unnatural death or a sudden death of which the cause was unknown (form B). The second is confirmation of the treating doctor's certification by an independent medical practitioner (form C). It is necessary in order to give this independent view, and in any event it is a statutory requirement, that the independent doctor will discuss the death with the treating doctor, and will perform a visual examination of the body. The importance of the confirmation is obvious: it helps to ensure that the deceased has not died as a consequence of acts or omissions on the part of treating doctors that are then being covered up. The Shipman enquiry ought to have brought home to every doctor the importance of the confirmatory certificate. Finally there is then the authority to cremate, a form which is completed by a medical referee (form F). The medical referee acts on the basis of the information provided in Forms B and C.
Because, she said, of difficulties of access and the pressure for swift closure placed upon her by families, Dr L fell into the habit of signing Form C without seeing the bodies and, on occasion, without discussing the death with the treating doctor. The Trust found evidence that on at least 46 occasions Dr L had signed Form C without examining the body [CB 86]. There may have been more occasions but Dr L accepted in evidence that there were 46 and I proceed on that basis.
She was, she said, concerned and distressed by what she was doing and on the 10 th April 2006 she drew to the attention of Dr Dodds, her Clinical Director and thus line manager, the fact that she had difficulty with access to the mortuary [S 18]. In evidence Dr L went further and said that she had told Dr Dodds that she was signing form C without viewing the bodies.
Dr Dodds was called to give evidence by the Trust. He denied having any recollection of crematorium forms being raised at the meeting in April. He said that if it had been raised he would have taken it seriously: he knew the importance of examining the body and the rationale that lay behind having the body examined by an independent doctor. It was suggested to Dr Dodds that he bore Dr L some antipathy. I do not accept that he did. I have little doubt Dr L held some resentment as to the way she believed she had been treated on the distribution of office space and administrative support and it may be (I do not know) that this made her an exasperating colleague. But I do not believe that any such exasperation developed into antipathy such as to cause Dr Dodds to lie about a conversation that I am sure he would have remembered had it taken place. Whether or not Dr L made mention of difficulties of access to the mortuary I am sure she did not tell Dr Dodds that she was signing Form C without viewing the bodies. If she had made such an observation I am sure she would have been told to desist forthwith. I am sure that Dr Dodds would have regarded it as a serious matter that could not be allowed to continue. I am sure he would have asked her if others were engaged in the practice.
She said that Dr Dodds appeared busy. He drew the meeting to an end without commenting upon her assertions or otherwise saying what he would do. I find it impossible to accept that that is what he would have done if given the information that Dr L says she gave him. Moreover, if what she said were true one would expect that over the next five months Dr L would have raised the matter again, particularly if it was causing her the distress she said it caused. She did not. She had no convincing explanation as to why she did not.
Dr Dodds did become alerted to a problem with crematorium forms. I accept that this was in August 2006 and that it provoked the investigation carried out by Mr Goodwin, the Trust's Director of Finance, assisted by Mr Slater, the Trust's local counter-fraud specialist [CB 79]. As the investigation progressed it became apparent that there were a number of doctors signing Form C when there was no evidence that they had visited the mortuary. Letters were sent by Mr Goodwin to three of the doctors, Dr L included, asking if they had an explanation. The letter to Dr L is dated the 18 th September 2006 [CB 143]. It was non-combative and non-judgmental. It simply sought an explanation. Dr L did not meet with Mr Goodwin. She did not provide an explanation. Her letter in response, dated the 21 st September 2006 [CB 145] simply side-stepped the issue. Mr Goodwin was obliged to report to Dr Thomson, the Trust's Acting Medical Advisor, without having any explanation from Dr L. Dr Thomson called a meeting with Dr L. She did not attend. Consequently he wrote to her on the 16 th October 2006 informing her of his decision to carry out a formal disciplinary investigation [CB 148]. He did not consider it necessary to suspend Dr L from work. He considered that the risk to patients was appropriately managed by restricting her from taking part in the completion of Cremation Act forms. He advised her that he would be informing, amongst others, the GMC and the police. Still Dr L did nothing.
Dr L's reasons given in evidence for failing to meet with Mr Goodwin or Dr Thomson and failing to offer an explanation to them for what had been happening were utterly unconvincing. I am driven to the conclusion that she appreciated the seriousness of what she had done and thought that if she undertook to and did abide by a new procedure, promulgated in a letter dated the 20 th September 2006 [CB 144], the complaint would go away.
It did not go away. Mr Goodwin and Dr Thompson considered that possible persistent breaches of the Act, which amounted to the commission of criminal offences, could not be overlooked. I have considered (though it was raised tangentially at best) whether Dr Thompson was driven by mistrust or some other animus towards Dr L. I am satisfied that he was not. He considered, rightly, that the matter was serious. It is true that he informed the GMC that Dr L also faced other disciplinary matters (which will be referred to in this judgment as “other matters”) and it is true that he did so before she knew of it. That was, in my judgment, a mistake; but it was not one driven by antipathy towards Dr L. Dr Thompson then told me that as a consequence both of the Police request and Clause 3.7 of HR2 he stayed the investigation.
Mr Thomson in evidence accepted that he was aware of the Trust's Disciplinary Policy that had come into effect in September 2006 (referred to in this judgment as “HR2”) [CB 64] and in particular to clause 3. 7 [CB 71]. As a consequence, he said, of both the police request and clause 3.7 he did stay the investigation and on the 3 rd November 2006 he informed Dr L of that fact [CB 151]. In truth, by this time, the investigation was almost complete. All that was missing was an account from Dr L and the other doctors of their actions and an acceptance or denial of the fact that they had signed Form C without examining the bodies.
There matters rested until May 2007 when the Trust was informed that the Police had sent the papers to the CPS.
Dr L had not been suspended as a consequence of these allegations. She had been permitted to continue working but stopped from signing cremation forms. However, the investigation into the other matters referred to at paragraph 8 of this Judgment had resulted in her suspension in January 2007. She also asserted that she could not work through ill-health brought about, she implied, by the stress of what was happening to her.
It seems that in May 2007 the Police forwarded their file to the CPS. The Trust was informed. Nonetheless Dr Thomson was sufficiently concerned by the delay to make the decision in early June 2007 to continue the investigation [CB 203]. Dr L was informed [CB 158A]. Dr Thompson told me that on several occasions he had sought information as to when a decision would be reached whether to prosecute or not. The response was that the decision would be made in the near future. Come June 2007 he and Mr Eames had decided that matters could not continue in this...
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