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R (Howard) v Secretary of State for Health [2002] EWHC 396 (Admin): a missed opportunity to unravel the rotting carcass of covert Medical Misconduct.

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A Casenote offering critique to the early twenty first century English Legal System, which through the discouragement of publicity on Medical Negligence Inquiries, contributed to a missed opportunity to address the internal failures that have cultivated medical misconduct.
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  Healthcare Law and Ethics R (Howard) v Secretary of State for Health [2002] EWHC 396 (Admin): a missed opportunity to unravel   the rotting carcass of covert Medical MisconductIntroduction Until recently, medicine was able to rest on its historical laurels 1 , and need not provide justification for its professional privileges. It’s bureaucratic and patriarchal system operated in such a way that the standard of conduct displayed by itsmembers, remained covert. However, in the 20 th -21 st century, discoveries of serious misconduct of many clinicians,erected, likened to the sort detected of both a Dr. Clifford Ayling and Consultant Richard Neale. Resulting in a realisationemerging, that demanded public scrutiny of the medical system, in the form of Inquiries to be held with the purpose of;assessing the appropriateness and effectiveness of the procedures operating in the local health services, enabling healthservice users to raise issues of legitimate concern, identifying cultural and organisational factors which impeded idealprogress, and making recommendations to ensure that appropriate remedial action was taken. However, in the presentcase, what was asked of a system already embedded with impenetrability, proved too much; a public inquiry.Furthermore, the understanding of a request for a public inquiry is an ethical question, which in the present case wasinadequately dealt with in a rigidly legal form. Serious questions about the procedural failures of the British Healthcaresystem have much broader implications than just legality and illegality. In addition, the department of health and  judiciary’s attitude towards complaints that arose evidenced “ a lack of courtesy ” 2 which reflects poorly on the ethos of the medical and legal system thus far, as victims of serious professional misconduct and betrayal of the Dr-Patient trust;Patricia Howard and Sheila Wright-Hogeland, alongside the general public were owed at least, a prompt and adequateresponse to the detection of serious ailments. However no significant change occurred in the last century, due to thecontinued discouragement of the detection of failures, and a frivolous attitude taken towards reinforcement of professional ethic. With the existence of almost identical cases of medical misconduct today, 11 years on, it is plausibleto suggest that Howard  3 may be damned, a missed opportunity to address the internal failures that cultivated medicalmisconduct. The case of  Howard  : Analysis of the rigid Judgement The case of  Howard  concerned the conjoined claims of Patricia Howard and Sheila Wright-Hogeland for judicial reviewof the decision of the Secretary of State for Health (SOSH), Alan Milburn, to not hold the Independent inquiries into theserious malpractice and criminal conduct of two doctors, in public, hereby prohibiting the press and public to attendformal investigations into the misery caused to a large number of women.   The first claim concerned the misconduct of General Practitioner Dr. Clifford Ayling who in 1998 had been found guiltyof, and imprisoned for 13 offences of indecent assaults against his patients. The charges related to the inappropriatetouching during intimate medical examinations, of a large number of female patients who consulted him withgynaecological problems, resulting in some consequential serious long-term affects on their lives. One of the victims of an unnecessarily sexually motivated examination being, 16 year-old Patricia Howard. Upon which he was sentenced to 4 1   J. Montgomery, (1998) ‘ Professional Regulation: A Gendered Phenomenon’  , Feminist Perspectives on Healthcare Law,Cavendish Publishing, pg 50  2   R (Howard) v Secretary of State for Health [2002] EWHC 396 (Admin), at 16 3 Ibid.  Healthcare Law and Ethics years imprisonment and in 2001 was struck off the medical register by the General Medical Council (GMC). The mainissue concerning the case of Ayling that lingered was that his conduct took place over a considerable period of time,(1973-1998) , however it was not until the mid 1980s that cause for concern of Ayling’s conduct was finally heard of.The second claim concerned Consultant Richard Neale, who had been struck off for deficiencies in the standard of carehe provided. The main issue concerning the case of Neale was that he was previously suspended from practice inCanada but managed upon arrival in the UK in 1986 to continue practice as a Consultant Obstetrician and Gynaecologistat a number of NHS Hospitals in England, resulting in many botched operations on women for over more than a decade.Neale left a trail of damaged women across the country, including Ms. Sheila Wright-Hogeland. His name was finallyremoved from the medical register after convictions of 34 allegations of misconduct, in July 2000.Despite aims of the two inquiries being to open up the health care system for examination for improvements, the courtdecided in Howard  , that The SOSH had been entitled to refuse public access to the two inquiries, stating the decision forprivacy could not be impugned. The undesirability of this decision can be seen in the fact that this case brought aboutthe opportunity to discuss the provocative subject of media coverage of the private world of the medical system,because this case was about more than just the two incidents of Ayling and Neale, but about the overall coverthappenings in the medical field and the unfulfilled rights of the general public to know of the inadequacies within theirhealthcare system, in the wake the Human Rights Act 1998. Although the ethical analysis of this casenote may ask toomuch of Britain in the early 20 th - 21 st century, it is conceivable to suggest this was a missed opportunity for any realsubstantially preventative parliamentary reaction, especially since the conflictions at the heart of this case, later become the central basis’ for many cases to come.The deciding factors concerning whether the court would impugn the decision of the SOSH, were unfavourable for theclaimants since they narrowed down an expansive ethical issue of patient autonomy into two limited questions whichproved that the law in this area of medical ethics, as it stands, is often unhelpful for the rights-aware. Winning thepresent case became dependent upon, firstly, whether the decision of the SOSH were Wednesbury Irrational andUnreasonable. The legal phrase Wednesbury Unreasonable, relates to the standard of unreasonableness a public body ’s  decision must have in order to render it liable to be quashed on judicial review. 4 The Law here was particularlyunhelpful, because the grounds of the decision had to be explicitly “ outrageous in its defiance of logic or accepted moral standards” 5 , and the wrongs that were occurring in the present case were highly covert. If we firstly consider “thepurpose of the inquiries” 6 as Scott LJ called on us to do, it remains unclear how far the  purpose s were appreciated in2002; how far the judiciary then were prepared to subject health authorities to review. There indeed existed anirrational and unreasonable loss of opportunity to heighten awareness of clinical negligence, and expose the patriarchalold boys culture that was keeping the substandard conduct of medical professionals undercover thus far, at stake.Even if the defe ndant had been entitled to weigh the issues of the “witnesses' expected candour; [and] the speed andcost of the proceedings” 7 , given the current economic climate 8 . In depth ethical discussion should have led the court to 4    Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223 5   Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6 at para. 410, per Lord Diplock  6   Howard  , OpCit. 7   Howard  , OpCit. 8 P. Turner, (2002) ‘ Review of the UK economy in 2002’  , Economic Review, Phillip Alan Updates, 20(4)  Healthcare Law and Ethics understand the dangers of suggesting that speed and public expenditure can be classified as significant enough barriersto hamper ethical appreciation of the importance of public awareness of the criminal inadequacies within healthcare,and sacrifice patient autonomy for, when the funding of means to addressing such issues were raised for the verypurpose of maintaining an adequate national heath service. Perhaps the reason the UK has been unable to preventrecurrences of future cases like that of Ayling and Neale lies in the reluctancy to spend, which a glance at the ‘ No- Fault’ system 9 utilised in New Zealand, and their statistically low levels of misconduct 10 solidifies. Nevertheless, the court herefailed “to establish independence from… stakeholder influence [which perverts] public health goals” 11 , seen in theunprepared attitude towards costs for a public hearing, despite the many preventative benefits to be gained.Although the possibility of the candour of the former patients who would give evidence as witnesses, being affected,remains the most significant argument for the SOSH, the fact that the female victims and their supporters unanimouslycampaigned for a full public inquiry, 12 and that two former patients Patricia Howard and Sheila Wright-Hogeland wentso far as to waiver their right to anonymity in order to bring the long term failures to light, emphasises the sacrificeswilling to be taken in order to reap the benefits to be gained from publicity of the inquiry. Hence, it is clear thearguments the SOSH put forward were not entirely balanced logically against the former. In respect for patientautonomy, and the right to have accurate notice of the quality of healthcare being provided, the court should have heldthat any investigation into the failures of the healthcare system should take place in a public forum, however, theseendeavours were sacrificed for the convenience of haste, leaving it fair to say the extent to which the SOSH can be saidto have discharged his duty 13   to “secure improvement” 14   in the health of the people, and facilitate the “prevention…of ill…services” 15 remains questionable. The second question, by which the claimants’ chances of winning were determined, was whether the decision of theSOSH infringed the Convention right to freedom of expression. On this occasion the judiciary decided Article 10 16 couldnot be engaged with, deeming the request for a public inquiry, a right of access to information, and that the article didnot confer a right on individuals to receive information that others were not willing to impart. 17 Firstly, this argumenthighlights the very wrongs existent in the medical system, that the ability for the public to be informed on the adequacyof healthcare they are subject to is dependent on the willingness of leaders within the department of health. Secondly,although it is argued the SOSH’s decision had not interfered with the claimants' ability to impart information by anyother means available to them, this is merely “judicial fluff” 18 , and reflects the judicial reluctance to heed the seriousnature of the review in question. As the law stood there existed within the freedom of expression the right “to receiveand impart information and ideas without interference by public authority” 19 which, in this particular instance needed 9 Injury Prevention, Rehabilitation and Compensation Amendment Act (No.2) 2005 10 K. Oliphant, (2007) ‘ Beyond Misadventure: Compensation For Medical Injuries in New Zealand’  , Medical Law Review, 15 (3),pp. 357-391 11 L. London et al, (2012) ‘  Conflict of interest: A tenacious ethical dilemma in public health policy, not only in clinical   practice/research’, South African Journal of Bioethics and Law 5(2) 12 Daily Mail. Doctors’ Victims Launch Bid For Public Inquiry, Available from, http://www.dailymail.co.uk/news/article-98634/Doctors-victims-launch-bid-public-inquiry.html [Accessed 9th March 2013] 13 National Health Service Act 1977 (c.49) s.2(a) 14 Ibid. sec.1(1) 15 Ibid. sec.1(b) 16 The Human Rights Act 1998 17   Leander v Sweden (1987) 9 EHRR 433 18     C. Edward Good, (1989) Mightier Than the Sword: Powerful Writing in the Legal Profession, Lel Enterprises Publishers Pg   20 19 The Human Rights Act 1998 Sch. 1 Part I Art.10(1)  Healthcare Law and Ethics  judicial protection from “frontiers” 20 in the form of the SOSH’s prohibiting decision, which would inevitably take theform of licensing restrictions on the media that would hamper “the exercise of these freedoms” 21 . It was for the  judiciary to utilise its power in assistance of those most vulnerable within the legal system, and heed the female victims’ plea, noting for whom exactly a decision in favour of a private inquiry would be most socially desirable. Moreover thesubsequent cajolery “ that interested parties or their representatives would be allowed to attend all of the inquiryhearings ” 22 , was simply not enough since any inquiry which endeavours to discuss errors and improvements to be madeon a public service, should ideally operate objectively, and openly, upon a collective “notion of society’s expectations of preventative conduct” 23 . Thus, any such agreement made without voluntary inclusion of the people, cannot beconsidered legitimate at all. 24   Furthermore, the protection of future patients’ well -being should have been paramount,with the judiciary deciding within its power to what extent the decision to keep the public ignorant of the criminal happenings within their healthcare system is one “necessary in a democratic society” 25 , and one which is “in theinterests of…public safety, for the prevention of…crime, for the protection of health or morals,” 26 or whether theprotection of the reputation of both the already affirmed inadequate medical professionals, and the security of the SOSH’s reputability, has been regarded as above the latter. The happenings here in Howard  , display how the law often operates “ parasitical[ly] upon the subjugationsof classes of” 27 the under represented who may lack knowledge of the judicial system, and fall disadvantaged as theirpleas are diminished. The impropriety of a Legal Assessment It is unsurprising that one can lack confidence in there being a sound enough assessment of the conditions to bebalanced in a request for a public inquiry, because all that took place here, was a legal assessment. Appropriate analysisof  Howard  , reveals that the legal process was entirely inappropriate for the issues at hand to be questioned in,highlighting the limits of legal intervention. Asking whether an inquiry should be held in public is a different question, of an ethical nature. The questions of legal unreasonableness and infringement of legislation above, analyse the legality of  the SOSH’s decision but not the ethical r eality of private inquiries and what is best for reforming and inhibiting futurecases of inadequacy, which would have been publicising. It was inevitable that the claimant’s argument would fail because its basis was derived from an impossible notion.Neither claimant nor anyone else (even in Wagstaff  28 , the sole case in the court concluded that a minister ’s decision tohold an inquiry in private was unlawful) could establish the pre-requisites necessary for a legitimate expectation thatthe inquiries be held publicly, without being permitted to wholly evaluate the ethical issues and importance of reformation at stake. L egislation was “not constructed in such a way as to offer an appropriate tool for addressi ng 20 ibid. 21 ibid. Art.10(2) 22   Howard  , OpCit. at 22 23   A. Leavens, ‘  A Causation Approach to Criminal Omissions’  , California Law Review, 76, at 547-575 24 L. Spooner, (1870)   ‘  No Treason: The Constitution of No Authority’  , Boston, (6) 25 ibid. 26 ibid. 27   Internet Encyclopaedia of Philosophy, ‘ Soci al Contract Theory’  , Available from, http://www.iep.utm.edu/soc-cont/  [Accessed 20 th November 2012] 28   R. v Secretary of State for Health Ex p. Wagstaff  [2001] 1 W.L.R. 292

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