Ms Tao Ma v St George's Nhs Trust
| Jurisdiction | England & Wales |
| Judge | Judge Moloney QC |
| Judgment Date | 08 May 2015 |
| Neutral Citation | [2015] EWHC 1973 (QB) |
| Docket Number | Case No: TLJ/15/0030 |
| Court | Queen's Bench Division |
| Date | 08 May 2015 |
[2015] EWHC 1973 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Rolls Building
Fetter Lane
London EC4A 1NL
His Honour Judge Moloney QC
(sitting as a Judge of the High Court)
Case No: TLJ/15/0030
Ms Ma appeared in person
Ms Kate Wilson appeared on behalf of the Defendant
This is a ruling made on an interim application in a libel action. The libel action is set down for trial by judge alone in one month's time on 8 June 2015 with a time estimate of two days. Because that trial is pending and because this is an interim application, I wish to emphasise that nothing I am going to say should be taken as a finding of fact one way or another in the case. I am merely seeking to define the issues and not to determine any of them.
Some weeks ago on 23 March 2015 the defendant Trust issued an application to strike out the claim and/or to enter summary judgment. That is the application which has now come before me for decision. The application has two main limbs: (a) an invitation to me to rule in respect of those of the publications complained of in relation to which qualified privilege is claimed (that is to say publications by the defendant only to its own staff) that those publications were plainly made on an occasion of qualified privilege and that since no sufficient plea of malice has been put forward, the claim in respect of them is therefore bound to fail; and (b) further or in the alternative to that, in relation to those publications not covered by qualified privilege, that is to say publications not confined to members of the Trust's staff, and/or in relation to the publications as a whole should I not accede to the first application, that the case as a whole is liable to be struck out on what are commonly referred to as the Jameel grounds because what we have here is not a real and substantial tort deserving of a trial.
Chronology
The background is that in 2012 Ms Ma and her partner were living in London and had a young daughter, aged four at the time. On 12 August 2012 the daughter suffered a fall and hurt her head. The two parents therefore took her to Accident & Emergency. Ms Ma says that she would sooner have gone to St Thomas' but St George's was nearer and that was the one that they went to. They arrived at the Accident & Emergency with the injured child and unfortunately a dispute followed. I am going to be cautious what I say about the dispute because that will be an important part of the subject matter of the trial, but I can say that Ms Ma understandably wished her child to be treated as soon as possible. The hospital's standard procedures seemed too slow to her, and words were exchanged between her and members of staff. Ultimately, she decided she wanted to leave and take the child to St Thomas' where it would get quicker and better treatment, as she supposed. Her partner, the father, was less enthusiastic. A member of the hospital staff physically intervened to try to prevent her taking the child away and there is allegation and counter allegation of violence being used on that occasion. Indeed, Ms Ma accepts that she did strike or push that member of staff; she says in self-defence.
Matters concluded that day with the child being seen by a paediatrician and remaining in hospital overnight for treatment with the father, but the mother being asked by the staff to leave and go home.
In the course of that evening, while and shortly after the incidents were taking place, the police were called, but no criminal proceedings resulted on either side. The documents were written, the publication of which is the key subject matter of this libel action. Those documents included the "medical notes" made by the various members of staff who were dealing with the case. Those notes, it would appear, served partly as medical notes recording the history of what had happened and the steps that were taken to treat the child, and partly as records of the incident itself from the standpoint of what the staff said was Ms Ma's behaviour and their reaction to it. This may have been done to record the medical history of the matter, but also partly with an eye to the obvious likelihood of some form of complaint that might ensue from the incident. There are four sets of notes, made by Dr Hornby, Dr Cameron, Nurse Jones and a fourth note made by a person whose identity has not been ascertained.
There is then a document, the "health visitor liaison form" by which the case was referred to the Trust's own internal health visitor department. And there is a document which has been a particular source of controversy. It is a "specialist services referral form" referring the case outside the NHS Trust to the local authority's Social Services Department, or Child Protection Department. Those are the principal documents complained of.
Besides publication to the people or bodies which I have identified, there is complaint by Ms Ma that those documents, or some of them, or the allegations that they contain, have enjoyed a wider circulation within the NHS, in particular to her GP practice. And lastly there is an assertion of publication more widely within the community, to people who are not connected with the NHS or Social Services at all. (Though I am not going to strike that out, at present it appears to me there is very little evidence to support that widest class of publication.)
I do not think it is necessary for the purposes of this ruling to set out all of those documents verbatim, but the nub of the matter can be seen in the specialist services referral form which says:
"Please see notes. Concerns re mum's behaviour in department. Mum extremely hostile and aggressive and has assaulted a member of staff."
And the very similar note for the health visitor says: " Please see notes mum's behaviour. Mum assaulted staff member." The notes, which are thus, as it were, incorporated by reference into those other documents, give a fuller account from the hospital staff's viewpoint of the incident, including allegations of unreasonable behaviour by the mother, in particular the allegation that the mother struck Nurse Jones, the staff member who was trying to prevent her from taking the child away.
Those are the documents complained of, all of which I think were made on the evening of the 12 th August 2012. To give a very brief chronology, on 19 August 2012 Ms Ma made a formal complaint to the hospital. On 22 August she was visited at home by a social worker from the local authority, Ms Sharp, who had spoken to her earlier at the hospital, but who visited her at home in order to discuss the concerns. She rapidly came to the conclusion that there were no concerns so far as child safety was concerned and that investigation terminated there.
When some time later, on 16 October 2012, Ms Ma went to see her General Practitioner she found that the General Practitioner had been informed of concerns arising out of the incident and that matter was discussed between them, though the particular document by which the matter was referred to the GP, a short referral note dated 13 August 2012, is not, so far as I am aware, a document expressly complained of in this case.
Following on from her complaint to the hospital, during 2013 Ms Ma also made a complaint to the "Ombudsman", the Parliamentary Commissioner, and that complaint led on 19 June 2013 to the Ombudsman's findings. In his letter the Parliamentary and Health Service Ombudsman's representative stated first of all that it was not possible for them to resolve the truth about the assault incident. They did, however, record that both sides agree that an altercation did occur and they say, addressing Ms Ma, that in her statement she accepts that she did hit the nurse twice in the belly because she felt he had grabbed her breast. (It is important to emphasise that this would have been in the course of a struggle. There is no suggestion of any sexual impropriety.)
The Ombudsman did at paragraphs 13 and 14 of his letter criticise the Trust in two regards. Firstly, that the Ombudsman's professional adviser's view was that it was not appropriate for the hospital staff to physically prevent the mother from leaving with the child. Secondly, that the Ombudsman was unconvinced by the Trust's rationale for making a child safeguarding referral to Social Services, given that (I summarise the point) the referral seemed to be based on concerns about the mother's behaviour towards the staff rather than on any apparent concerns about the child.
As a result of that, the Ombudsman recommended, and it was carried out, that a guarded apology should be written by the Trust and placed on the records. Furthermore Ms Ma herself was permitted to write her own account of events as an addendum and that again was placed on the records. So the documents complained of remain on the files of the NHS Trust. albeit with those corrective items appended to them.
Ms Ma was not happy with this as a complete resolution of her complaint and on 8 August 2013, so just within the one-year limitation period for libel, she commenced the present case. Initially it was based only on the referral letter to Social Services because she had not at that time, it would appear, seen the internal NHS records. She obtained the internal files, not I think by way of disclosure, and she has since added to her complaint about the Social Services referral the complaints in respect of the other documents to which I have referred, that is to say the health visitor liaison form and the four sets of medical notes.
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