UK: Public Policy Is In Favour Of Speaking Easy About Medical Practitioners Without Fear Of Prohibition

The recent decision of Mr Justice Males in Noordeen v Hill and the Health Research Authority highlights the need for people to be allowed to express their concerns about medical practitioners to responsible people without fear of litigation.

Summary

This was an application by Mr Noordeen, a Consultant Orthopaedic and Spinal Surgeon, for a Norwich Pharmacal order against Mrs Hill, chair of the London Stanmore Research Ethics Committee (REC) and the Health Research Agency (HRA), as the body responsible for Research Ethics Committees. Mr Noordeen alleged that he had been defamed by unknown clinicians who had told Mrs Hill that he was using magnetic rods and that children who were given these rods needed more x-rays than children who had been given a previous type of rod.

The facts

Mr Noordeen was a pioneer of a new magnetic ‘growth rod’ in children with scoliosis. Such rods were inserted into the spine to assist the child’s spine to grow straight rather than curved. The new rod could be extended without surgery by means of an external magnet. The rods received a CE mark in Germany after testing on pigs. Mr Noordeen obtained the appropriate clinical governance approval to use these rods at Great Ormond Street Hospital (GOSH).

When Mr Noordeen gave up his position at GOSH in 2010, he was keen to use the new magnetic rods in his position at the Royal National Orthopaedic Hospital (RNOH) and to carry out a research project on their use. In January 2010, he applied to the REC for permission to carry out a patient study.

In Mrs Hill’s absence, the REC rejected the application and told him, inter alia, that he may not need ethics approval if his study used the device for the purpose for which it already had CE marking. In fact, this was a mistake and Mr Noordeen did need ethics committee approval. However, the CE marking allowed him to implant the rods in patients so long as he did not do so as part of a patient study into the use of the rods.

Mrs Hill subsequently wrote to Mr Noordeen on 5 May 2010 informing him that the research must always have ethical approval from a REC. Mr Noordeen responded on 10 May 2010 making it clear that he understood the need for ethical approval and that the proposed study was not going ahead.

In June or July 2010, Mrs Hill was told by more than one clinician at RNOH that Mr Noordeen was using magnetic rods and that children who were given these rods needed more x-rays than children who had been given the previous kind of rod.

Mrs Hill was under the misapprehension that Mr Noordeen was not entitled to implant magnetic rods in patients at all and so discussed the matter with REC colleagues. Since the REC had no power to take action, Mrs Hill informed Sheila Oliver at the National Research Ethics Service (NRES), the body which was then responsible for issuing guidance about how RECs should operate, of her concern that a study which had been refused ethical approval was being carried out at RNOH. This was then passed to Dr Wisely, director of NRES, who investigated and found no reason for concern about the safety of the magnetic rods.

Dr Wisely therefore wrote to the joint medical directors of RNOH on 16 July 2010 and informed them of the concern that the study into the rods was progressing resulting in poor clinical outcomes for children although she stressed that she did not have evidence to support this statement.

Mr Noordeen was asked by the director of RNOH to confirm in writing that he would not carry out any more surgical procedures with the magnetic rods until they had been investigated, which Mr Noordeen duly did. The outcome of RNOH’s investigation was that Mr Noordeen’s proposed research study had not proceeded and clinical governance approval was subsequently given for the use of the rods at RNOH.

Mr Noordeen then wrote to Mrs Hill asking for the source of the information to be revealed to him, which Mrs Hill declined to do. Therefore, Mr Noordeen made an application for a for a Norwich Pharmacal order on the basis that he had been defamed by the clinicians who spoke to Mrs Hill in June/July 2010 resulting in the statement in Dr Wisely’s letter dated 16 July 2010 that the study was progressing resulting in poor clinical outcomes for children.

The law

In the case of Norwich Pharmacal Co v Customs & Excise Commissioners (1974), the House of Lords held that where an action could not be brought against a wrongdoer without disclosure of the information sought or where the person against whom the disclosure is sought has become involved, albeit innocently, he comes under a duty to assist anyone injured by those acts by giving full information by way of disclosure and disclosing the identity of the wrongdoers.

Mr Justice Males in the Noordeen case summarised that to obtain such an order the applicant must show that:

(a) A wrong has been carried out by an ultimate wrongdoer

(b) There is a need for an order to enable an action to be brought against the ultimate wrongdoer

(c) The person against whom the order is sought is mixed up in the wrongdoing so as to have facilitated it and is able or will likely be able to provide the information necessary to enable the wrongdoer to be sued

Even if the three conditions are fulfilled, it is a matter for the court’s discretion as to whether to grant the order.

The decision

Mr Justice Males refused to grant the order. He concluded that Mrs Hill’s evidence had explained clearly the information which she had received and from what sources, without naming names. The crux of the application was the identity of the clinicians. However, as pointed out by Mr Justice Males, there was no possibility of a successful action for defamation against those persons who spoke to Mrs Hill based on a statement that Mr Noordeen was going ahead with the study as Mrs Hill was merely told that Mr Noordeen was using magnetic rods on his patients and it was her conclusion that he was going ahead with the study.

He was also doubtful any statement that children fitted with magnetic rods needed more x-rays than children with fixed rods could on its own be defamatory and, even if it could be, it would likely fall under qualified privilege.

Importantly, Mr Justice Males also refused to exercise his discretion to grant the order for the following reasons:

(a) Mr Noordeen’s case for defamation against the clinicians was not strong

(b) The statement regarding the poor clinical outcome was hardly more than an expression of opinion

(c) The information was not broadcast to a wide audience

(d) The information was given to Mrs Hill in confidence and people should be allowed to express their concerns about medical practitioners to responsible people without fear of litigation

Further, if Mrs Hill were required to reveal her sources, this could have serious repercussions on the work of the HRA and REC. Mr Justice Males supposed that it might also discourage clinicians from volunteering to act on RECs if they thought they would be drawn into legal proceedings because people raised concerns with them.

Learning points

The NHS Constitution pledges that staff will be supported to raise concerns regarding safety, malpractice or wrongdoing. Patient interests also demand that where there are genuinely held, but erroneous, concerns regarding the ethical basis for treatment, then these should be investigated in a timely and fair manner.

The Noordeen case would appear to be, at its core, a reiteration of those principles. It continues to offer whistleblowers the reassurance that concerns regarding the ethical or clinical underpinnings of any course of treatment can be properly brought to light without the fear that they will be subject to later defamation actions.

Each case where disclosure of information is sought, based on the Norwich Pharmacal principles, will have to be judged on its own merits. The court will not easily be persuaded to make such an order and Trusts and individuals would be encouraged to consider carefully whether they can produce sufficient evidence to trigger the exercise of judicial discretion.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.