“Following two serious complaints of assault against the above doctor, I requested you to issue an alert notice in 1999. Dr D was employed here as a locum SHO in Accident & Emergency. Both incidents, separated by four weeks, involved psychologically vulnerable young women. We terminated our contract, informed the GMC and handed investigations to the police, who later informed me that similar accusations had been brought against Dr D in a previous employment but had been dropped for lack of reliable evidence. It has only recently come to my attention that although the police pursued their investigations, the Crown Prosecution Service subsequently decided they had insufficient evidence to secure a conviction and the GMC likewise dropped the case in 2003. Neither the CPS nor the GMC informed this Trust of their decisions. As an employer with responsibility for the safety of patients, and in particular for those who are especially vulnerable, I feel aggrieved I was not informed of the first case by the GMC. I realise that he had not been found guilty, but a plain statement of the facts that there had been an investigation would have helped to prevent the third accusation. As there still is no accepted proof of guilt, I now find myself in the position of having to ask you to withdraw the alert notice, which I do with reluctance. The withdrawal of the alert notice will remove the only warning to future employers that this doctor has had (at least) three accusations of the same nature made against him: statistically useful information. I hope you will be able to use my dilemma for further discussions within the Department of Health and that some solution might be found.”
“With reference to your letter dated15 October 2004 , I can confirm that I have today written to Professor Ashton, Director of Public Health at the North West office of the Department of Health, to ask him to withdraw the alert notice issued in 1999. I can also confirm that neither the GMC nor the Crown Prosecution Service had informed this Trust that charges against Dr D had been dropped.”
“Further to my letter to you dated1st November 2004 , concerning the above doctor, I still have serious misgiving about the withdrawal of the alert letter, I realise that the Crown Prosecution Service and the General Medical Council have decided not to proceed with any action against him for the lack of reliable evidence. I acknowledge that paragraph 7 of HSC2002/011 and paragraph 1 of annex 1 to that circular suggest that an alert letter should normally be withdrawn when the regulatory body/police have determined to take no further action. However, paragraphs 7 and 32 within the annex appear to allow for alert letters to be retained in appropriate cases following such determination. I now believe this is one such case. If a man who wishes to perpetrate sexual assaults on young women is put into a position where he can select those whose clinical condition automatically makes them unreliable witnesses, he will never be successfully prosecuted. Potential future employers checking with the GMC will see no indication of the previous history, I understand that the issuing of an alert letter is a neutral act and it could give a potential employer the opportunity of knowing that concerns have been raised as well as the fact that evidence was considered weak. They would then be in a position to make up their own minds whether he might be suitable for a particular post. On these grounds I would ask you to reinstate the alert notice at the earliest opportunity.”
“The above named person was employed as a locum SHO in A&E medicine at …Trust. Should the above named person apply to you for a permanent position or locum work or work in any capacity you are advised to contact (the medical director at the trust).”
“Thank you for forwarding the appeal submitted by Hempsons on behalf of Dr D. In line with the guidance HSC 2002/001, I have considered the appeal submitted by yourselves on behalf of Dr D and have decided to maintain the Alert Letter. This decision was given to the Trust yesterday with a further letter sent today clarifying in more detail, the reasons for this decision. In line with aforementioned guidance, the NHS Trust, as the initiating organisation, should also formally notify you of this decision. In making this decision I have considered all the evidence available to me which includes five allegations made against Dr D by four patients ………….. in 1991. These allegations appear to be of a similar nature to those made by the two patients at the Trust some years later. If it is the case that Dr D has faced 7 allegations from 6 wholly unrelated patients there would be a significant risk of liability on the part of the Health Service if no Alert were in place. I also fully appreciate the seriousness of Dr D of having an Alert Letter in place. I therefore concluded that the Alert Letter should remain in place but that further investigations will now take place to ensure that all the facts are fully established. There is to be a fixed time frame for these investigations to take place of approximately three months, with a view to producing a final decision for Dr D on the23rd May 2005 . In any case, every effort will be made to ensure that the matter is dealt with in good time and if it becomes apparent from the information submitted that the Alert Letter should be withdrawn before this date I will do so immediately. Please accept this letter as a formal invitation for Dr D to fully participate in the investigation and as such I invite Dr D to submit any comments he wishes to make at this time in relation to the allegations made whilst working at ………. or at the Trust. I would be grateful if this information could be forwarded to this office by Monday 14th March. In the meantime I have stressed the importance to the Trust (as the contact point stipulated in the current Alert Letter), that it is to be made clear to any potential employer who contacts them that Dr D had not been found guilty of any misconduct whether by criminal courts or the GMC. If you feel there is any further information that would be pertinent to this investigation I would ask that you include this in your submission. Should you wish to discuss anything mentioned in this letter, please contact Dr Gary Cook, Deputy Regional Director of Public Health in the first instance. His contact details are at the top of this letter.”
“Action 11. This HSC directs NHS bodies to put systems in place to implement and manage the new system for alert letters from1st January 2003 . These requirements are mandatory for NHS organisations. Independent contractors, eg, general practitioners providing GMS or PMS, general dental practitioners, pharmacists and opticians, are strongly recommended to incorporate this circular into their procedures. 13. This circular should be read in conjunction with the Supporting Document, attached at Appendix 1. 14. The supporting documents sets out procedures for operating the alert letter for all health professionals working within the healthcare sector. For the purposes of this document all these people are referred to as “individuals”. 17. Of particular importance is the need to ensure that cases in which alert letters have been issued are monitored and that letters are rescinded as soon as appropriate (see the Supporting Document at Appendix 1).”
“NHS bodies must ensure that systems are put in place, in accordance with the attached document (“The Supporting Document – Procedures for Operating the Alert Letter System for Health Professionals in England”), to: consider whether action should be taken to alert other healthcare employers about a health professional who is believed to pose a serious potential or actual risk to patients or staff, andwho is believed likely to be working or seeking work elsewhere in a health or social care setting; notify the appropriate regulatory body immediately about the health professional in question unless there are exceptional circumstances when immediate referral may not be appropriate (see paragraph 20 of The Supporting Document – Procedures for Operating the Alert Letter System for Health Professionals); inform the Regional Director of Public Health (RDPH) of all the data and material necessary for that person to make a decision whether or not to issue an alert letter; inform the individual concerned (in writing to their last known home address and, where appropriate, their registered address) that the RDPH has issued an alert letter. The letter should give a summary of the reasons the alert letter was issued and, give 21 days from the date of notification for the individual to challenge the decision if they wish by sending representations in writing to the initiating organisation who will then pass them unaltered to the RDPH for consideration. retain current alert letters so that recruiting managers and human resources staff are aware of all live warnings; notify the RDPH circumstances which lead to the issue of the alert letter have changed, such that the risk to people/staff is removed (eg through improved health or retraining); notify the RDPH of the outcomes of any investigation undertaken by the regulatory body; appropriately monitor progress; notify the RDPH if the individual appears to have conducted himself or herself in a manner which could lead the RDPH to consider rescinding the alert letter or if the risk to patients and/or staff is removed (e.g. through improved health or retraining); request that the RDPH consider whether the alert letter should be formally cancelled; and see that the fact of this cancellation is appropriately circulated; ensure that appropriate confidentiality is strictly maintained throughout the process.” ensure that appropriate confidentiality is strictly maintained throughout the process.”
“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 letter in order to ensure consistency of approach throughout the country. 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. 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. 30. Following receipt of any representations, if the RDPH decides that that the individual does not in fact pose a serious potential or actual risk to patients or staff, then the alert letter must be formally cancelled. The RDPHs decision to cancel or not must be notified to the initiating organisation within 7 working days of receipt of the representations by the RDPH. The individual must be notified of the RDPHs decision by the initiating organisation. 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. Monitoring the situation and withdrawal of alert letters 31. So far as is reasonably practicable, the organisation that triggers the alert letter system must ensure that it monitors the progress of any proceedings by the police, regulatory body, NCAA or Occupational Health Service and of any disciplinary proceedings, so that, should the individual be shown not to pose a risk to patients or staff, the RDPH can be notified and can consider if the alert letter should be withdrawn. Where practicable, the initiating organisation will also wish to keep track of any civil case (eg, where a patient sues a practitioner through the courts). While such a process is underway, the initiating organisation should keep the RDPH informed on a monthly basis. Once the process is completed and a decision reached, there should be no need to continue to monitor or review the existence of the alert letter. The RDPH will need to satisfy him/herself on an annual basis that existing alert letters are still relevant. 32. As part of the monitoring process, The RDPH (where appropriate as a result of representations from the initiating organisation) must ensure that the alert letter is rescinded should the concern for the safety of patients and/or staff be removed. Each case must be considered on its merits and alert letters should not remain in force any longer than necessary in terms of protecting patients or staff. The individual concerned must also be advised by the initiating organisation when the letter had been withdrawn. It must be made clear on the face of the informing letter that the decision was made by the RDPH. 33. The RDPH should maintain and keep up to date a list of all alert letters he or she has issued and where applicable the date on which they were rescinded. 34. The RDPH should retain all details relating to the alert letter for five years after it has been rescinded. The existence of a rescinded letter would form an important piece of evidence should the same individual again be considered to pose a serious potential or actual risk to patients or staff at a later date. 35. There may be occasions where an NHS employer wishes to appoint an individual who is the subject of an alert letter (after making contact with the named contact on the alert letter) or a Primary Care Trust wishes to employ or include the individual on the Medical or Supplementary list. If an NHS employer proposes to employ or include on its list an individual who is subject to an alert letter, careful thought must be given to appropriate safeguards. Any decision, one way or the other, by the prospective employer must be justified, and if in doubt, legal advice should be sought from the prospective employer’ solicitors. Where the RDsPH are made aware of such a decision or proposed decision, they should consider consulting the Department’s Solicitors. Statutory regulatory bodies 36. Where an alert letter is issued, the case must be referred to the regulatory body as a matter of urgency, unless there are exceptional circumstances (see para 19). 37. If the regulatory body concludes its consideration of the case in terms that allow the individual to continue in practice, either with or without conditions, the RDPH and initiating organisation should review the need to continue the alert letter. It does not automatically follow that the alert letter should be withdrawn – there may be other reasons for continuing it. If it is decided to continue with the alert letter, both the RDPH and the initiating organisation must be prepared and able to defend this decision against legal challenge.”
“But the criterion of the need to protect patients is the overriding criterion and the fundamental ground for the need to maintain the alert letter. It is open to the practitioner, in my view, to submit material to establish that there is no need for maintaining the alert letter…...”
“Although it is, again, unnecessary for me to express a concluded opinion on the point, I am not at present inclined to accept Mr Plemings’s submission that denial of compensation to a defendant acquitted in circumstances meeting the conditions of section 133 necessarily infringes the presumption on innocence protected by article 14(2) of the ICCPR andarticle 6(2) of the European Convention . In WJH V The Netherlands (Communication No 408/1990) (unreported)31 July 1992 the Human Rights Committee said, para 6.2: “With respect to the author’s allegation of a violation of the principle of presumption of innocence enshrined in article 14, paragraph 2, of the Covenant, the Committee observes that this provision applies only to criminal proceedings and not to proceedings for compensation; it accordingly finds that this provision does not apply to the facts as submitted.”
“The voicing of suspicions regarding an accused’s innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation. However, it is no longer admissible to rely on such suspicions once an acquittal has become final.”
“The Court notes that it was common ground that Article 6(2) does not confer on a person “charged with a criminal offence” a right to reimbursement of his legal costs where proceedings taken against him are discontinued. The Court, like the Commission, would also recall its established case law to the effect that in itself the refusal to order the reimbursement to the former accused of his necessary costs and expenses following the discontinuation of criminal proceedings against him does not amount to a penalty or a measure that can be equated with a penalty. Nevertheless, such a decision may raise an issue under Article 6(2) if supporting reasoning, which cannot be dissociated from the operative provisions, amounts in substance to a determination of the guilt of the former accused without his having previously been proved guilty according to law and, particular, without his having had an opportunity to exercise the rights of the defence.”
“While the statements of Lord Bingham LCJ, Dyson J and myself do indicate a general approach, in my judgement, to apply them to the present case, except with the utmost of caution, can be misleading. I am conscious that as a result Wall J may have been led astray by my judgment. First of all, as already indicated and as Wall J accepted, here there is no presumption against disclosure. On the contrary, the position is more positive in favour of disclosure than was indicated by Wall J. Having regard to the language of section 115, the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure. This was obviously required by Parliament because it was important (for me protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need. In my judgement it imposes too heavy an obligation on the Chief Constable to require him to give an opportunity for a person to make representations prior to the Chief Constable performing his statutory duty of disclosure. Furthermore, whatever the shortcomings in the interview by the police, the interview was extensive and the claimant had had during that interview ample opportunity to set out his account. More importantly, under section 117, the claimant is given an opportunity to correct the certificate. An opportunity which he has not taken advantage of. In addition, as already indicated, the claimant was in a position to give his account of what happened to the person who it was most important should hear that account, namely his proposed employer.”
“34. I come finally to the contended-for violation of article 6 which can now be dealt with very briefly. As stated, it is the appellant’s case in this regard that a number of his civil rights are affected by the respondent’s decisions to subject him to forcible treatment and that he is accordingly entitled to a determination by an independent and impartial tribunal of the lawfulness of the interference with those rights. If I am correct in having concluded that the appellant on this challenge is entitled to have the legality of his future treatment plan determined by the court according to its own assessment of the relevant facts, then plainly the requirements of article 6 are satisfied: the Administrative Court will conduct a merits review on the evidence. The article 6 challenge seems to me similarly unsustainable in respect of past treatment: as already noted, it was always open to the appellant to bring a tortious claim for assault in respect of these. Article 6 does not in my judgment entitle a mental patient in every case to challenge a treatment plan before being subjected to it any more than it entitles a criminal suspect to pre-empt arrest by challenging in advance the constable’s right to arrest him. Where, therefore, as here, given that forcible treatment was to be administered it was clearly necessary to administer it without increasing the risks by forewarning the appellant of the plan, I for my part would not regard that decision as involving any violation of article 6. 35. I should perhaps add this. Were I to have concluded that the Administrative Court’s role on this challenge was as narrowly confined as contended for by the respondents (and by the intervening Secretary of State), the article 6 challenge would I think have proved irresistible. The respondents’ contention that article 6 is simply not engaged here because “when the sentencing court ordered the appellant’s detention it authorised his treatment in accordance with the 1983 Act” appears to me an impossible one: treatment still needs to comply with Part IV of the Act and any decision to treat the patient forcibly will inevitably determine his civil rights. Nor do I find convincing the respondents’ fall back argument that the requirements of article 6 (assuming it to be engaged) are met here either by the SOAD’s independent review and certification process or, at the very least, by a combination of that and the exercise of the court’s review jurisdiction. The difficulties of this argument are surely plain. The SOAD’s certification process, even it were not unduly deferential to the RMO’s decision, could hardly be said to involve “a fair and public hearing”
“Mr Levy suggests that the Index is an interference with the right to work in one’s chosen profession. He cites, as the “high point” in the recognition of such a right the case of Nagle v.Fielden[1966] 2 QB 633 : the Court of Appeal held that it was arguable that the jockey club’s policy or refusing a trainer’s licence to a woman was contrary to public policy. Lord Denning M.R. made some observations about the remedies which might be available to those denied entry to a “closed shop” operated by a trade or profession. Mr Levy has drawn out attention to numerous statutory provisions dealing with such situations. There is a clear distinction between being denied or deprived of a qualification or licence which is essential for the lawful conduct of the occupation in question and what occurred in this case. The appellant is an unqualified social worker. He was not being deprive of any qualification. No one has a right to be provided with a job. Employers are free to pick and choose whomever they wish to employ. They may do so for good or bad reasons, subject only to the laws prohibiting discrimination on grounds of race, sex or disability. What anyone has is the right to apply for a job. He may also have certain other rights connected with that right, for example in relation to the giving of references. Subject to complying with those rights, it seems to me that private citizens are free to maintain services such as this. I conclude, therefore, that maintaining the list is not, in itself, unlawful.”
“Held: dismissing the application for judicial review: …6) The only information stored on the Index was the name of the individual and particulars of his employer but there was evidence that inclusion on the Index might be enough to deter a potential employer. Therefore inclusion on the Index was an implied statement about an individual with the potential to affect his opportunities for employment but it did not follow that Article 8 was engaged. 7) The notion of private life was broad enough to include to a certain degree, activities which could be seen to be an aspect of the development and fulfilment of an individual’s personality, e.g. in establishing relationships, even though the activities occurred in a professional or business context. Niemetz v Germany (1993) 16 E.H.R.R. 97 considered. 8) The effect of including activities occurring in a business and professional context within Article 8 was limited and selective. It recognised the the conduct as being within provate life. Amann v Switzerland (unreported) (February 16, 200) considered. 9) Activities occurring within an individual’s business and professional life would be encompassed within Article 8 where the dividing line between them and private life was not clearly distinguishable, e.g. where it could be seen that it had occurred at a place to where access to the public was excluded and some domestic authority was exercised. Leander v Sweden (1987) 9 E.H.R.R. 433 referred to. 10) The division between the sphere of activity in question and the applicant’s private life was clear. The alleged conduct occurred in the course of his employment, Had the allegations related to conduct which had occurred within his home, but had reached the knowledge of his employer, different considerations might arise but the would not affect the character of the Index which only made an implied statement about suitability for employment. If a person chose to assert a right to be employed as a teacher or social worker, he put himself forward into public life and by that choice information was released about his public life.” …6) The only information stored on the Index was the name of the individual and particulars of his employer but there was evidence that inclusion on the Index might be enough to deter a potential employer. Therefore inclusion on the Index was an implied statement about an individual with the potential to affect his opportunities for employment but it did not follow that Article 8 was engaged. 7) The notion of private life was broad enough to include to a certain degree, activities which could be seen to be an aspect of the development and fulfilment of an individual’s personality, e.g. in establishing relationships, even though the activities occurred in a professional or business context. Niemetz v Germany (1993) 16 E.H.R.R. 97 considered. 8) The effect of including activities occurring in a business and professional context within Article 8 was limited and selective. It recognised the the conduct as being within provate life. Amann v Switzerland (unreported) (February 16, 200) considered. 9) Activities occurring within an individual’s business and professional life would be encompassed within Article 8 where the dividing line between them and private life was not clearly distinguishable, e.g. where it could be seen that it had occurred at a place to where access to the public was excluded and some domestic authority was exercised. Leander v Sweden (1987) 9 E.H.R.R. 433 referred to. 10) The division between the sphere of activity in question and the applicant’s private life was clear. The alleged conduct occurred in the course of his employment, Had the allegations related to conduct which had occurred within his home, but had reached the knowledge of his employer, different considerations might arise but the would not affect the character of the Index which only made an implied statement about suitability for employment. If a person chose to assert a right to be employed as a teacher or social worker, he put himself forward into public life and by that choice information was released about his public life.”