R (Dr D) v Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Ward |
| Judgment Date | 19 July 2006 |
| Neutral Citation | [2006] EWCA Civ 989 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 July 2006 |
| Docket Number | Case No: C1/2005/2930 |
[2006] EWCA Civ 989
Lord Justice Ward
Lord Justice Laws and
Lord Justice Longmore
Case No: C1/2005/2930
(CO/1700/2005)
Ms Alison Foster QC (instructed by Hempsons Solicitors) for the Appellant
Mr Adrian Lynch QC (instructed by Office of the Solicitors) for the Secretary of State for Health
LAWS LJ:
INTRODUCTORY
This is an appeal, brought with permission granted by the judge below, against the decision of Calvert-Smith J given in the Administrative Court on 13 December 2005 when he refused the appellant's application for judicial review of the issue of what is called an Alert Letter ("AL") by a Regional Director of Public Health for whom the respondent Secretary of State is responsible. The appellant is a medical doctor. Put at its broadest, and the question for the court will need much refinement, the case concerns the use of what may be called the AL procedure in a case where there is suspicion but not proof that a doctor has committed sexual assaults upon women patients in his care. It is convenient, before describing the facts of the particular case, to outline the nature of ALs and the measures prescribed in relation to them in Guidance issued by the Secretary of State.
ALERT LETTERS AND CIRCULAR 2002/011
S.17 of the National Health Service Act 1977 empowers the Secretary of State to give directions to Strategic Health Authorities (in England) , Primary Care Trusts, NHS Trust and Special Health Authorities "about their exercise of any functions". One such direction, or set of directions, is contained in Health Service Circular 2002/011 issued on 1 November 2002 and entitled "The Issue of Alert Letters for Health Professional in England" ("the Circular") . I should first set out paragraphs 1 – 7 of the Circular:
"1. An alert letter is the way in which all NHS bodies are made aware of a doctor or other registered health professional whose performance or conduct could place patients or staff at serious risk. They cover situations where doctors or any other health professionals who pose a hazard to patients or staff may move from their present NHS employer to work elsewhere in a health or social care setting in any capacity, whether or not requiring registration, before their regulatory body has had the chance to consider interim suspension or other measures. Even where such measures are in place, alert letters are intended to reduce the risk of inappropriate employment in any capacity.
2. It is also a way in which all NHS bodies are made aware of a doctor or other health professional who may reasonably be considered to pose a serious potential or actual risk to patient care or staff safety because their performance or conduct seriously compromises the effective functioning of a clinical team or local primary care services (see paragraph 8) .
3. Alert letters are not intended to be issued in circumstances where an individual practitioner's performance or conduct is being considered by their NHS employer. For doctors, the policy is that the advice and support of the National Clinical Assessment Authority (NCAA) should be sought by employing bodies in cases where the performance or conduct of a hospital doctor or general practitioner is giving serious cause for concern. A doctor undergoing assessment by the NCAA must give a binding undertaking not to practise in the NHS employment until the NCAA assessment is complete. An alert letter is intended to cover situations where a doctor moves on, or could move on before the assessment process is completed.
NOTE: Alert letters are solely for use in cases where an individual is considered to be a serious potential or actual risk to patients or staff. They should not be used for any other reason.
4. When an employer considers that their employee or former employee who is a health professional could place patients or staff at serious risk, they should make a request to the Regional Director of Public Health (RDPH) for the issue of an alert letter. In the case of health professionals other than doctors, the RDPH will seek advice from senior professional colleagues with responsibility for that profession (eg for nurses, the Head of Nursing at the relevant Directorate of Health and Social Care (DHSC) , or for midwives, the local Supervisor of Midwives) .
5. However, it will be for the RDPH to decide whether the criteria for issuing an alert letter have been met.
6. In all cases where an alert letter is issued, referral should be made to the individual's regulatory body (eg the General Medical Council) as a matter of urgency, by the initiating organisation. However, there might be very rare occasions when an alert letter may need to be issued as a matter of urgency but immediate referral may not be appropriate. This may be, for example, when investigations are ongoing to gather sufficient evidence to substantiate a referral to the regulatory body. In such cases, referral must be made at the earliest appropriate opportunity, or the alert letter withdrawn immediately it becomes clear that referral is not warranted. Consideration should also be given to the power of some regulatory bodies to place interim suspension or conditions on an individual's registration in circumstances when urgent action is required. The National Clinical Assessment Authority (NCAA) should also be notified in the case of doctors.
7. In summary, the alert letter is a measure to reduce the risk of an unsafe or poorly performing health professional practising whether in that or any other care capacity until the appropriate regulatory body has had the chance to consider what action is appropriate. In the case of doctors, an alert letter is intended to cover situations where the individual moves on before the NCAA assessment process is completed. It can also reduce the risk of individuals becoming inappropriately employed in posts not requiring registration, whether or not the regulatory body had taken action. There may be exceptional cases where the RDPH may decide that the individual remains a potential danger to patients and/or staff and therefore considers that the alert letter should remain in force. In this type of case, the RDPH may wish to consider consulting the Department's Solicitors branch."
The Circular includes a substantial Annex, which gives further details of the AL procedure in paragraphs cited by the judge below:
"12. Alert letters are purely factual and ensure that prospective employers are put in contact with previous employers and NHS organisations whose names might not be included on application forms. They can be issued in cases where an individual had left a job and a disciplinary issue has not been resolved. After issuing an alert letter in these circumstances, employers are expected to complete all investigations, consider the evidence and reach a judgment as to whether or not the concerns are valid.
…
18. Only RDsPH may issue alert letters. This is to reduce the number of people that can issue alert letters in order to ensure consistency of approach throughout the country.
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21. NHS Trusts will ask the RDPH to consider issuing an alert letter in the case of any of their employees. The request should be made by a Director of the NHS Trust.
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26. The RDPH considers the representations from the organisation and decides whether or not to issue an alert letter after consultation with senior professional colleagues with responsibility for that profession (eg for nurses, the Head of Nursing in the relevant DHSC or for midwives, the local Supervisor of Midwives) .
27. The RDPH advises the requesting organisation whether or not the alert letter will be issued and the reasons for this. If an alert letter is issued the requesting organisation must also refer the case to the regulatory body as a matter of urgency. It is recognised that there may be exceptional circumstances when immediate referral might not be appropriate, for example when investigations are ongoing to gather sufficient evidence to substantiate a referral to the regulatory body. In such cases referral must be made at the earliest appropriate opportunity or the alert letter withdrawn immediately it becomes clear that referral is not warranted.
28. The alert letter will be issued by the RDPH to all NHS bodies in the region. It will ask them to contact a named officer at the originating organisation for a reference if the subject of the alert letter contacts them with a view to obtaining employment and in addition will ask Health Authorities to distribute the letter to independent health care providers in their locality. The RDPH will also send the alert letter to other RDsPH, national independent health care providers and those organisations set out in paragraphs 43–45. A model alert letter is detailed in the Annex 2. Alert letters are strictly confidential and should only be shared in an NHS body on a 'need to know' basis.
29. Once an alert letter is issued the individual concerned should be notified by the initiating organisation within 7 days (in writing to their last known home address and, where appropriate, their registered address) that the RDPH has issued an alert letter. They should be given a summary of the reasons for this action and given 21 days from the date of notification in which, if they wish to challenge the decision, to send representations in writing to the initiating organisation, who will then pass them unaltered to the RDPH for consideration.
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