R (Howard and Another) v Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | Mr Justice Scott Baker,MR JUSTICE SCOTT BAKER |
| Judgment Date | 15 March 2002 |
| Neutral Citation | [2002] EWHC 396 (Admin) |
| Docket Number | Case No: CO/2893/01+CO/3864/01 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 March 2002 |
[2002] EWHC 396 (Admin)
The Honourable Mr Justice Scott Baker
Case No: CO/2893/01+CO/3864/01
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Edward Faulks Q.C and Stephen Cragg (instructed by Harman and Harman) for Patricia Howard
Richard Lissack Q.C and Nicholas Bowen (instructed by Alexander Harris) for Sheila Wright-Hogeland
Philip Sales and Jonathan Swift (instructed by Secretary of State for Health) for the Defendant
Introduction
In each of these two cases, which were heard together, the Claimant seeks judicial review of a decision of the Secretary of State for Health not to hold a public inquiry into circumstances surrounding the serious misbehaviour of a doctor.
Doctor Clifford Ayling was a general practitioner and clinical assistant who practised in Kent. He indecently assaulted a large number of women, mainly his patients, over a considerable period of time. In December 2000 he was found guilty of 13 offences of indecent assault and sentenced to 4 years imprisonment. In July 2001 his name was removed from the medical register by the General Medical Council (G.M.C.).
From 1986, when he came to this country from Canada, until he was suspended by the G.M.C on 10 September 1999 Richard Neale practised as a Consultant Obstetrician and Gynaecologist at a number of N.H.S hospitals in England, mainly in Yorkshire but also, subsequently, in Leicestershire and the Isle of Wight. He also practised at several of private hospitals. On 25 July 2000, after a hearing spanning six weeks, he was convicted before the G.M.C of 34 of 35 allegations that had been made against him and his name too was removed from the medical register. The Professional Conduct Committee told him there were:
"�..many deficiencies in the standard of care you provided to patients as well as unprofessional and dishonest behaviour."
Ayling�the essential facts
Ayling qualified as a doctor in the late 1960s and initially worked in hospitals in London specialising in obstetrics and gynaecology. In the early 1980s he started working in general practice, at first in partnership with Doctor Ribet at his practice at 19 Cheriton High Street, Folkestone. Doctor Ribet retired in late 1980s and Ayling continued in sole practice from the same address. He also worked as a locum obstetrician and gynaecologist in various local hospitals including the Kent and Canterbury Hospital, the William Harvey Hospital in Ashford and the Royal Victoria Hospital in Folkestone. He worked with, among others, Mr Rodney Ledward, the disgraced gynaecologist.
Ayling's conduct appears to have been a cause for concern to patients from about the mid 1980s when complaints were made but none appears to have been taken seriously or to have been dealt with by any formal procedure. In 1987 his delivery of the baby of a Mrs A led to her consulting solicitors with a view to making a negligence claim, but the claim did not proceed because Mr Ledward wrote a report saying that in his view there had been no negligence.
In 1991 a patient of his general practice made a complaint of indecent assault. Ayling denied it saying he was merely "being thorough." The matter was reported to the police but there was no prosecution as there was no corroboration of the allegation.
In 1992 a student midwife complained of indecent assault and in 1993 a women attending an antenatal clinic complained of inappropriate comments and a sexualised internal examination. The chief executive of the William Harvey Hospital responded by assuring the complainant that Ayling would never work again at the antenatal clinic except under very closely monitored conditions. None of the complainants was told of the others' complaints and each believed her complaint was isolated. No action was taken because the clinical director of the Family Health Services Authority erroneously believed none of the women concerned wanted any taken and that it was sufficient if Ayling was counselled.
There was no follow up and Ayling went on to abuse and assault dozens of his women patients. He targeted in particular young, vulnerable, women who were isolated through family problems or divorce. Other local surgeries had more patients then they could cope with, with the result that many women with drug addiction problems found their way onto Ayling's list.
Women who had been assaulted by him left his practice and reported their concerns to health visitors, midwifes and other G.Ps, but nothing appears to have been done although concerns about Ayling came to be widely known.
A patient complained to the East Kent Health Authority who referred the complaint to the G.M.C. In 1998 Folkestone police began an investigation. In November 1998 Ayling was arrested and questioned. He was then charged. More women came forward following publicity in the media.
He was bailed, originally on condition that he did not practice as a GP, but the terms of his bail were varied so that he could practice provided a chaperone was present during intimate examinations. He merged his practice with a number of other GPs but continued to assault and traumatise women in his surgery up until his trial. It is a scandal that he was able to behave has he did for so long. There are very serious questions to be answered as to why this was so.
The Claimant Patricia Howard consulted Ayling in 1994 at his surgery to obtain the "morning after" pill. She was sixteen at the time and Ayling insisted on carrying out a breast examination before prescribing the pill. She was traumatised but felt that, in the circumstances, there was little she could do. Her situation is typical of many others. Her solicitors now act for over forty other women who suffered at the hands of Ayling. There are believed to be many others who either never made a complaint or whose complaints went unheeded or uninvestigated.
By January 2001 Ms Howard's solicitors were acting for a number of women who had been sexually assaulted by Ayling. They wrote to the Secretary of State for Health on 24 January 2001 saying they wanted to make representations to any government inquiry. They said their clients wished to make formal representations as to the nature of the inquiry and that any inquiry should be in public. They wrote again, this time to the chief medical officer, on 2 March 2001:
"It is the unanimous view of those who have consulted us that Doctor Ayling was able to abuse them because of long term failures within the health system to deal with unsafe practitioners. These need to be identified and corrected in the interests of all patients in the future���..They feel with some considerable force that, as they took a public stand, any investigation of the failure of the health system into protecting them against Doctor Ayling should also take place in a public forum."
On 5 March 2001 there was a two line acknowledgment from the Department of Health. There was no further response and on 12 April the solicitors wrote again giving further information about the chronology. By then they had been instructed by more clients. In particular, they pointed out that there had been ample information to stop Ayling from practising from 1993 and that there were several issues that demanded public scrutiny.
Despite chasing letters, there was no substantive response until 13 July 2001 when the solicitors were sent a copy of a press release indicating there would be three investigations, none of them to be held in public, regarding Ayling, Neale and another doctor, William Kerr. The press release was accompanied by a letter of the same date.
In my judgment the manner in which the Department handled the solicitor's correspondence shows a lack of courtesy which reflects poorly on those in charge. At the very least the public is entitled to a reasonably prompt response to letters raising serious issues. It is hardly surprising if failure to do so inflames already strong feelings.
The substance of the press notice, in so far as it related to Ayling, was that the investigation would be chaired by Dame Yvonne Moores, chair of the Southampton University Council and that its overall purpose was:
"To assess the appropriateness and effectiveness of the procedures operated in the local health services (a) for enabling health service users to raise issues of legitimate concern relating to the conduct of health service employees; (b) for ensuring that such complaints are effectively considered, and (c) for ensuring that appropriate remedial action is taken in the particular case and generally."
The Inquiry was asked specifically:
� "To identify the procedures in place during the (period) 1985�2000 within the local health services to enable members of the public and other health service users to raise concerns or complaints concerning the actions and conduct of health service professionals in their professional capacity.
� To document and establish the nature of and chronology of the concerns or complaints raised concerning the practice and conduct of Doctor Clifford Ayling, a former GP from Kent during this period.
� To investigate the actions which were taken for the purpose of (a) considering the concerns and complaints which were raised; (b) providing remedial action in relation to them; and (c) ensuring that the opportunities for any similar future misconduct were removed.
� To investigate cultural or other organisational factors within the local health services which impeded or prevented...
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