“The Defendant further knew or should have known (whether following inquiry or otherwise) that: 35.1 at the relevant times, a doctor interviewed by the Police as a voluntary attendee would not undergo a risk assessment, such that no reassurance could be obtained from the fact that the Police did not identify a risk of psychiatric injury or suicide; 35.2 it is and at all relevant times was usual for the Police, when investigating a doctor for an offence of this nature, to refer the doctor to the GMC; 35.3 there were indications of vulnerability on the part of the Deceased which would have been revealed if enquiries had been made of the Trust, including the following: 35.3.1 on11 April 2018 the Deceased was visibly upset; 35.3.2 on16 April 2018 , following a meeting with the Deceased, Dr Dwarakanath was significantly concerned about the Deceased’s well being; 35.3.3 on30 April 2018 the Deceased told Ms Greaves about the stress he was under and that he was suffering from disturbed sleep.” 35.3.1 on11 April 2018 the Deceased was visibly upset; 35.3.2 on16 April 2018 , following a meeting with the Deceased, Dr Dwarakanath was significantly concerned about the Deceased’s well being; 35.3.3 on30 April 2018 the Deceased told Ms Greaves about the stress he was under and that he was suffering from disturbed sleep.”
“39. The GMC is and was at all relevant times a public authority for the purposes of theHuman Rights Act 1998 (“HRA”). 40. For the reasons set out at paragraphs 33 to 35 above, the GMC knew or should have known that the Deceased was at a real and immediate risk of suicide. 41. The GMC had a positive obligation to protect the Deceased from violations of his right to life in accordance withArticle 2 ECHR . The failures set out at paragraph 37 above accordingly amount to violations of the Deceased’s right to life underArticle 2 ECHR . Those violations caused the Deceased to lose a substantial chance of avoiding harm. 42. The Claimants are victims of the said violations, each having close personal and familial relationships with the Deceased.”
“The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim”
“1.2 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a): … (3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.”
“1.5 A party may believe they can show without a trial that an opponent’s case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the interpretation of a document). In such a case the party concerned may make an application under rule 3.4 or apply for summary judgment under Part 24 (or both) as they think appropriate.”
“…in an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out.”
“The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if— (a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
“The correct approach on applications by defendants is, in my judgment, as follows: i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman[2001] 2 All ER 91 ; ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8]; iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman; iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]; v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 ; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 .”
“The pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives – (a) to protect, promote, and maintain the health, safety and well-being of the public, (b) to promote and maintain public confidence in the medical profession, and (c) to promote and maintain proper professional standards and conduct for members of that profession.” (a) to protect, promote, and maintain the health, safety and well-being of the public, (b) to promote and maintain public confidence in the medical profession, and (c) to promote and maintain proper professional standards and conduct for members of that profession.”
“The Investigation Committee shall investigate the allegation and decide whether it should be considered by a Medical Practitioners Tribunal.”
“…where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under rule 8.”
“…may promote the enquiry for investigation in the following circumstances: • Doctor is aware of the police investigation, the allegation is serious A list of “serious offences” appears at Addenda I of the document and includes “Sexual assaults”. and the police investigation is progressing • The circumstances indicate that an interim order may be required • … • The offence in question meets the triage threshold • The police have disclosed information which enables the [Assistant Registrar] to understand the offence under investigation, including a brief summary of underlying circumstances (this will inform a subsequent IOT decision) • Police are content for the information provided by them to be used in our investigation and to be disclosed to the doctor.” • Doctor is aware of the police investigation, the allegation is serious A list of “serious offences” appears at Addenda I of the document and includes “Sexual assaults”. and the police investigation is progressing • The circumstances indicate that an interim order may be required • … • The offence in question meets the triage threshold • The police have disclosed information which enables the [Assistant Registrar] to understand the offence under investigation, including a brief summary of underlying circumstances (this will inform a subsequent IOT decision) • Police are content for the information provided by them to be used in our investigation and to be disclosed to the doctor.”
“(1) As soon as is reasonably practicable after referral of an allegation for consideration under rule 8, the Registrar shall write to the practitioner – (a) informing him of the allegation and stating the matters which appear to raise a question as to whether his fitness to practise is impaired; (b) providing him with copies of any documents received by the General Council in support of the allegation; (c) inviting him to respond to the allegation with written representations within the period of 28 days from the date of the letter; and (d) informing him that representations received from him will be disclosed, where appropriate, to the maker of the allegation (if any) for comment.” (a) informing him of the allegation and stating the matters which appear to raise a question as to whether his fitness to practise is impaired; (b) providing him with copies of any documents received by the General Council in support of the allegation; (c) inviting him to respond to the allegation with written representations within the period of 28 days from the date of the letter; and (d) informing him that representations received from him will be disclosed, where appropriate, to the maker of the allegation (if any) for comment.”
“Disclosure may be delayed if the doctor has health issues requiring us to hold off on our correspondence, or deliver through a nominated contact.”
“The Registrar shall carry out any investigations, whether or not any have been carried out under rule 4(4), as in his opinion are appropriate to the consideration of the allegation under rule 8.”
“As soon as is reasonably practicable after the relevant date, the General Council shall require, from a practitioner whose fitness to practise is being investigated, details of any person – (a) by whom the practitioner is employed to provide services in, or in relation to, any area of medicine; or (b) with whom he has an arrangement to do so.” (a) by whom the practitioner is employed to provide services in, or in relation to, any area of medicine; or (b) with whom he has an arrangement to do so.”
“(a) the decision of the Registrar to carry out investigations under Rule 7(2); (b) the referral of an allegation to the MPTS for them to arrange for it to be considered by an Interim Orders Tribunal; (c) the referral of an allegation for consideration by the Case Examiners under rule 8;”
“If, at any stage, the Registrar is of the opinion that an Interim Orders Tribunal should consider making an interim order in relation to a practitioner, he shall refer the allegation to the MPTS for them to arrange for it to be considered by such a Tribunal accordingly.”
“Cases should be referred to the Interim Orders Tribunal (IOT) where the doctor faces allegations of such a nature that it may be necessary for the protection of members of the public, or otherwise be in the public interest or in the interest of the doctor, for the doctor’s registration to be restricted whilst the allegations are resolved.”
“No order under subsection (1) or (3)(b) to (d) above shall be made by a Tribunal in respect of any person unless he has been afforded an opportunity of appearing before the Tribunal and being heard on the question of whether such an order should be made in his case.”
“Olive skin colour wearing glasses and a black/navy blue surgical suit (pinny). He was in his 40s to 50s with black greying bushy hair which was not styled. This male also had a beard which was scraggly and had grey bits.”
“The circumstances of the allegation are that the complainant is a 15 year old female who attended Grace Dental (private dental practise located within the grounds of North Tees University Hospital, however the doctor is registered and does practise within the North Tees and Hartlepool NHS Trust hospitals) on 26/03/18. She attended in relation to a planned extraction under sedation. The complainant alleges that following the procedure, she was escorted to the recovery room by the anaesthetist who when alone with her in the recovery room stroked her bottom and then went on to put his hand inside her t-shirt and touched the top of her breast. He then left the room and the complainant’s father was allowed to join her in the recovery room. SURESH has been interviewed voluntarily under caution at Middlesborough Police Station on 03/04/18. He has denied any sexual contact with the complainant. The trust have been informed and SURESH is currently under suspension while this investigation is concluded. There are a number of lines of enquiry still to be conducted in relation to this investigation, this is ongoing.”
“Dr Dwarakanath asked how Dr Suresh was coping with his health and well-being. Dr Suresh advised that he was able to sleep more. Dr Dwarakanath outlined his concern that during previous meetings and telephone call exchanges, he was significantly concerned about Dr Suresh’s well-being although there was never any concerns around an acute mental state or thoughts of self-harm; he described to Dr Suresh that he was still concerned despite Dr Suresh’s reassurance that he was ok. Dr Dwarakanath outlined that extended support was available from both internal Trust services and external sources and that whilst Dr Suresh had declined this previously, he strongly encouraged him to reconsider accessing these and his own GP.”
“The doctor is currently suspended by his Trust. He has denied all allegations. We have had no referral and the doctor has not yet made any self-referral to the GMC (but he has not yet been charged). It is not felt appropriate for an allegation of failure to advi[s]e the GMC to be added for Decision at this time. These are serious allegations of misconduct which, if proven, may require action on the doctor’s registration. Although the doctor has not yet been charged the allegations are of a sufficiently serious nature – and involve a minor – that the matter should be promoted for Criminal Conviction investigation now. This has been discussed with Heather Cowap who has agreed to take the case. This matter is therefore promoted accordingly.”
“[Helen McDonald] said there were concerns about [Dr Suresh’s] welfare, it was discussed that support was in place. It was confirmed that [Helen] would be the point of contact for the Police at the hospital.”
“If I had been informed of the timing of the GMC referral I would have made immediate personal contact with Dr Suresh to inform him of this; advised that we had not instigated the referral and remained entirely supportive. I would have explained the length of time the GMC take to investigate a case, six months plus, together with the legalistic nature of their correspondence. We would continue to support him fully with regular calls, meetings, offers of occupational health and counselling services. These support mechanism were already in place for Dr Suresh but would have been reiterated had I been aware that the GMC referral had been made.”
“I understand that Dr Suresh has been suspended from North Tees University Hospital however that would not stop him from seeking work through a locum agency. The initial step for our investigation is to disclose the material you have provided to the doctor to make him aware of our investigation. We cannot send a doctor for an IOT hearing if we have not disclosed our investigation to them. So could I please ask that you let me know immediately if you have any objections to us disclosing your email to Dr [redacted] If you would prefer that we do not disclose your referral email then please provided me with an alternative summary in an new email to disclose to Dr [redacted].”
“I am writing today on behalf of the General Medical Council. I have some confidential information to disclose to you and would be grateful if you could confirm if this email address is an appropriate point of contact. For security reasons, please could I also ask you to confirm your GMC UID Number and the post code of your registered home address. I look forward to hearing from you in due course.”
“I understand that this might be a stressful time, so if you have any questions regarding this letter please contact me directly and I will be happy to help.”
“I know that receiving this letter and being involved in this process is a stressful experience. I hope you understand after reading the information provided that we need to open an investigation to make sure there are no ongoing risks to patients, as our role is to protect the public. We are keen to work with you to resolve this as quickly as possible.”
“We would not typically inform a doctor’s responsible officer that we are opening an investigation, before we disclose this to the doctor in question. If we have serious concerns about a doctor’s health we will consider different ways to make the initial disclosure; this could include contacting a treating psychiatrist or their GP to discuss the best method of discussing the decision with the doctor. We were not made aware of any concerns regarding Dr Suresh’s health or potential vulnerability in this matter and therefore we were not able to take any additional steps to provide further support.”
“For any doctor, a letter from your organisation is the worst possible event in their career. They have a significant impact on all; even on those without a mental health issue. Therefore, all Medical Directors should be informed by the GMC PRIOR to letters being sent out. This will enable trusts to be able to forewarn you of any mental health issues.”
“Any doctor referred to the GMC should be considered to be vulnerable and therefore supported and assisted in a compassionate manner. Given the stress of the investigation process, it is possible any doctor could develop mental health problems or an addiction habit as the very nature of the investigation process creates significant stress and mental anguish.”
“In the Caparo case[1990] 2 AC 605 , Lord Bridge of Harwich noted that, since the Anns case, a series of decisions of the Privy Council and the House of Lords, notably in judgments and speeches delivered by Lord Keith of Kinkel (including his speech in Hill v Chief Constable of West Yorkshire[1989] AC 53 ), had emphasised “the inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope”: p 617. It is ironic that the immediately following passage in Lord Bridge's speech has been treated as laying down such a test, despite, as Lord Toulson JSC remarked in Michael's case, the pains which he took, at pp 617–618, to make clear that it was not intended to be any such thing: “What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope.” (Emphasis added by Lord Reed)
“26… Where the existence or non-existence of a duty of care has been established, a consideration of justice and reasonableness forms part of the basis on which the law has arrived at the relevant principles. It is therefore unnecessary and inappropriate to reconsider whether the existence of the duty is fair, just and reasonable (subject to the possibility that this court may be invited to depart from an established line of authority). Nor, a fortiori, can justice and reasonableness constitute a basis for discarding established principles and deciding each case according to what the court may regard as its broader merits. Such an approach would be a recipe for inconsistency and uncertainty… 27. It is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised. Following the Caparo case, the characteristic approach of the common law in such situations is to develop incrementally and by analogy with established authority. The drawing of an analogy depends on identifying the legally significant features of the situations with which the earlier authorities were concerned. The courts also have to exercise judgement when deciding whether a duty of care should be recognised in a novel type of case. It is the exercise of judgement in those circumstances that involves consideration of what is “fair, just and reasonable”. … 29. Properly understood, the Caparo case thus achieves a balance between legal certainty and justice. In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable. In the present case, however, the court is not required to consider an extension of the law of negligence. All that is required is the application to particular circumstances of established principles governing liability for personal injuries.”
“(i) There is a fundamental distinction, drawn in all the above cases, between making matters worse, where the finding of a duty of care is commonplace and straightforward, and failing to confer a benefit (including failing to protect a person from harm), where there is generally no duty of care owed. (ii) An example of the former (making matters worse), where there was held to be a duty of care owed by the police, is Robinson[2018] AC 736 . As regards other emergency services, a more difficult example is the Hampshire case in Capital & Counties[1997] QB 1004 (turning off the sprinkler system In more detail, in the Hampshire case decided as part of the Capital & Counties plc appeals, the fire brigade had turned off a sprinkler system on arrival leading to the fire rapidly spreading out of control and destroying the premises. Had it been left on, and the fire brigade otherwise acted as it had, the premises would not have been destroyed. Turning the sprinkler system off made matters worse. By contrast in the other two appeals, the fire brigade failed to inspect premises where a fire broke out, and failed to extinguish a fire due to lack of water. In these two cases the brigade made things no worse than if they had not intervened at all: see Tindall at [27] to [30]. ). All the other cases mentioned fell on the other side of the line. (iii) A difficulty in drawing the distinction (between making matters worse and failing to protect from harm) is how to identify the baseline relative to which one judges whether the defendant has made matters worse: see Sandy Steel, “Rationalising Omissions Liability in Negligence” (2019) 135 LQR 484, 487. The cases show that the relevant comparison is with what would have happened if the defendant had done nothing at all and had never embarked on the activity which has given rise to the claim. The starting point is that the defendant generally owes no common law duty of care to undertake an activity which may result in benefit to another person. So it is only if carrying out the activity makes another person worse off than if the activity had not been undertaken that liability can arise. (iv) Another way of stating the general rule is to say that a person owes a duty to take care not to expose others to unreasonable and reasonably foreseeable risks of physical harm created by that person's own conduct. By contrast, no duty of care is in general owed to protect others from risks of physical harm which arise independently of the defendant's conduct—whether from natural causes (as in East Suffolk[1941] AC 74 ) or third parties (as in Michael[2015] AC 1732 and Ancell[1993] 4 All ER 355 ).”
“31. … as explained by Lord Hoffmann [in Stovin v Wise]in a speech with which the other members of the majority agreed,… "In the case of positive acts, therefore, the liability of a public authority in tort is in principle the same as that of a private person but may be restricted by its statutory powers and duties" (p 947: emphasis in original).”
"If such a duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed."” "
“41. Equally, concerns about public policy cannot in themselves override a liability which would arise at common law for a positive act carried out in the course of performing a statutory function: the true question is whether, properly construed, the statute excludes the liability which would otherwise arise: see Gorringe's case[2004] 1 WLR 1057 , para 38, per Lord Hoffmann. 42. That is not to deny that what might be described as policy considerations sometimes have a role to play in the law of negligence. As explained earlier, where established principles do not provide a clear answer to the question whether a duty of care should be recognised in a novel situation, the court will have to consider whether its recognition would be just and reasonable.”
“Although a duty of care might be owed to the child, the court considered that the position of the parents was different. In view of the potential conflict between the best interests of the child and the interests of the parents, there were in the court's view cogent reasons of public policy for concluding that, where child care decisions were being taken, no common law duty of care should be owed to the parents. Another way of expressing the point would have been to say that the imposition of a common law duty of care towards the parents would be inconsistent with the statutory framework, since it would interfere with the performance by the authority of its statutory powers and duties in the manner intended by Parliament.” (Emphasis added)
“…in cases such as Gorringe[2004] 1 WLR 1057 , Michael and Robinson[2018] AC 736 the House of Lords and this court adopted a different approach (or rather, reverted to an earlier approach) to the question whether a public authority is under a duty of care. That approach is based on the premise that public authorities are prima facie subject to the same general principles of the common law of negligence as private individuals and organisations, and may therefore be liable for negligently causing individuals to suffer actionable harm but not, in the absence of some particular reason justifying such liability, for negligently failing to protect individuals from harm caused by others. Rather than justifying decisions that public authorities owe no duty of care by relying on public policy, it has been held that even if a duty of care would ordinarily arise on the application of common law principles, it may nevertheless be excluded or restricted by statute where it would be inconsistent with the scheme of the legislation under which the public authority is operating. In that way, the courts can continue to take into account, for example, the difficult choices which may be involved in the exercise of discretionary powers.” (Emphasis added)
“38. A statutory power cannot of itself generate a common law duty of care: see East Suffolk Rivers Catchment Board v Kent[1941] AC 74 and the Gorringe case[2004] 1 WLR 1057 , para 41. Whether a statutory duty gives rise to a private common law cause of action is a question of construction of the statute. It requires an examination of the policy of the statute to decide whether it was intended to confer a right to compensation for its breach. If the statute does not create a private right of action, it would be unusual, to say the least, if the mere existence of the statutory duty could generate a common law duty of care. The existence of a broad public law duty alone can scarcely give rise to a common law duty of care owed to an individual. 39. The common law should not impose a concurrent duty which is inconsistent, or may be in conflict with, the statutory framework. If the policy of the statute is not to create a statutory liability to pay compensation, the same policy should also ordinarily exclude the existence of a common law duty of care. Lord Scott put the essential principle for statutory duties as follows in the Gorringe case, at para 71: “if a statutory duty does not give rise to a private right to sue for breach, the duty cannot create a duty of care that would not have been owed at common law if the statute were not there. If the policy of the statute is not consistent with the creation of a statutory liability to pay compensation for damage caused by a breach of the statutory duty, the same policy would, in my opinion, exclude the use of the statutory duty in order to create a common law duty of care that would be broken by a failure to perform the statutory duty.” 40. There may be special circumstances in which a public authority has assumed an obligation to a claimant to act in a particular way. But if Parliament stops short of imposing a private law duty in favour of individuals, sufficiently compelling special circumstances are required, beyond the mere existence of the duty or power, to make it fair and reasonable to impose a duty to an individual of a scope to be derived from the special circumstances. There may be particular cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities such that they are taken to have assumed responsibility to a claimant so as to give rise to a common law duty of care. 41. Factors to be taken into account include the subject matter of the statute and the intended purpose of the statutory duty or power; whether a concurrent private law duty might inhibit the proper and expeditious discharge of the statutory functions; whether such a duty would expose the authority's budgetary and other discretionary decisions to judicial inquiry; the ability of the claimant to protect himself; and the presence or absence of a particular reason why the claimant was relying or dependent on the authority. If there is reliance, it may easily lead to the conclusion that the authority can fairly be taken to have assumed responsibility to act in a particular way. But reliance alone is usually not enough. Some statutory duties or powers are less susceptible to a concurrent common law duty than others. The law does not favour blanket immunity. See for these propositions Lord Nicholls (who dissented in the result) in Stovin v Wise[1996] AC 923 , 937c - 938e. In the present case, we consider that the modified core principle to be derived from the Hill case[1989] AC 53 (see above) is relevant, but arguably not of itself determinative. 42. There are cases where a public authority may be held liable for breach of a duty of care on what Lord Hoffmann in Gorringe v Calderdale Metropolitan Borough Council[2004] 1 WLR 1057 , para 38 referred to as a solid, orthodox common law foundation, where the question is not whether it is created by a statute, but whether the terms of the statute are sufficient to exclude it. He gave as an example a hospital trust providing medical treatment pursuant to a public law statutory duty, but where the existence of a common law duty was based simply on its acceptance of a professional relationship with the patient no different from that which would be accepted by a doctor in private practice. Barrett v Enfield London Borough Council[2001] 2 AC 550 and Phelps v Hillingdon London BoroughCouncil[2001] 2 AC 619 are examples of cases where, upon a longer analysis, public authorities acting under statutory powers were held in principle vicariously liable for alleged breaches of duty by their child care, health or education professionals. The professionals themselves arguably owed the children a duty of care, and the employing local authority was prima facie vicariously liable if the professional was in breach of that duty. On the other hand, health care and child care professionals employed by statutory authorities do not normally owe a duty of care to the parents of children whom the professionals may wrongly allege to have abused their children. The child, not the parent, is the doctor's patient, and the doctor has to be able to act single-mindedly in the child's interest without regard to the possibility of a conflicting claim by the parent: see D v East Berkshire Community NHS Trust[2005] 2 AC 373 , para 85, where the factor which Lord Nicholls labelled “conflict of interest” was a major, if not determinative, consideration. Likewise, where action is taken by an authority acting under statutory powers designed for the benefit or protection of a particular class of persons, the authority will not owe a common law duty of care to others whose interests may be adversely affected by the exercise of the power. The imposition of a duty of care might inhibit the exercise of the statutory power and be potentially adverse to the class of person it was designed to benefit or protect, thereby putting at risk the statutory purpose: see Jain v Trent Strategic Health Authority[2009] PTSR 382 , where the facts in favour of the imposition of a duty of care were, on one view, very strong. “if a statutory duty does not give rise to a private right to sue for breach, the duty cannot create a duty of care that would not have been owed at common law if the statute were not there. If the policy of the statute is not consistent with the creation of a statutory liability to pay compensation for damage caused by a breach of the statutory duty, the same policy would, in my opinion, exclude the use of the statutory duty in order to create a common law duty of care that would be broken by a failure to perform the statutory duty.”
“In making the application the authority is exercising a statutory power. The purpose of the power is the protection of the residents in the home in question. It might be fair and reasonable to conclude that the authority did owe a common law duty of care to the residents of a nursing home or a care home if conditions at the home warranting the exercise of the authority’s statutory powers had come to the authority’s attention but nothing had been done. But to conclude that an authority exercising, or deciding whether to exercise, its statutory powers owed a duty of care also to the proprietors of the home seems to me much more difficult.”
“The cases in this second line of authority, including the Martine case 20 BMLR 51, which I regard as having been rightly decided, establish, in my opinion, that where the preparation for, or the commencement of conduct of, judicial proceedings before a court, or of quasi-judicial proceedings before a tribunal such as a registered homes tribunal, has the potential to cause damage to a party to the proceedings, whether personal damage such as psychiatric injury or economic damage as in the present case, a remedy for the damage cannot be obtained via the imposition on the opposing party of a common law duty of care. The protection of parties to litigation from damage caused to them by the litigation or by orders made in the course of the litigation must depend upon the control of the litigation by the court or tribunal in charge of it and the rules and procedures under which the litigation is conducted.”
“The duty of the CPS is to the public, not to the victim or to the suspect, who have separate interests. To recognise a duty of care towards victims or suspects or both, would put the CPS in positions of potential conflict, and would also open the door to collateral interlocutory civil proceedings and trials, which would not be conducive to the best operation of the criminal justice system. Similar considerations are relevant when considering the applicability of article 8 in the context of a decision to prosecute…”
“A further point may usefully be made about the need to view the defendant's activity as a whole. This dispels the objection that it can be difficult or even arbitrary to distinguish between acts and omissions. Take, for example, what Lord Nicholls of Birkenhead in Stovin v Wise[1996] AC 923 , 930, described as the classic illustration of failing to apply the handbrake when parking a car, with the result that the car rolls down a hill and causes damage to another vehicle. On one view the damage in this example results from a mere omission. Any difficulty in explaining the common sense conclusion that the driver owes a duty of care disappears, however, when the focus is directed at the whole activity (of driving) and the question is asked whether the damage would have occurred if the defendant had not engaged in that activity. Plainly the answer is “no”
“It can also apply where, as Lord Goff put it in Spring v Guardian Assuranceplc[1995] 2 AC 296 , the claimant entrusts the defendant with the conduct of his affairs, in general or in particular. Such situations can arise where the defendant undertakes the performance of some task or the provision of some service for the claimant with an undertaking that reasonable care will be taken. Such an undertaking may be express, but is more commonly implied, usually by reason of the foreseeability of reliance by the claimant on the exercise of such care. …”
“There are indeed several leading authorities in which an assumption of responsibility arose out of conduct undertaken in the performance of an obligation, or the operation of a statutory scheme. An example mentioned by Lord Hoffmann is Phelps v Hillingdon[2001] 2 AC 619 , where the teachers' and educational psychologists' assumption of responsibility arose as a consequence of their conduct in the performance of the contractual duties which they owed to their employers. Another example is Barrett v Enfield[2001] 2 AC 550 , where the assumption of responsibility arose out of the local authority's performance of its functions under child care legislation. The point is also illustrated by the assumption of responsibility arising from the provision of medical or educational services, or the custody of prisoners, under statutory schemes. Clearly the operation of a statutory scheme does not automatically generate an assumption of responsibility, but it may have that effect if the defendant's conduct pursuant to the scheme meets the criteria set out in such cases as Hedley Byrne[1964] AC 465 and Spring v Guardian Assurance plc[1995] 2 AC 296 .”
“…the particulars of claim must provide some basis for the leading of evidence at trial from which an assumption of responsibility could be inferred. In the present case, however, the particulars of claim do not provide a basis for leading evidence about any particular behaviour by the council towards the claimants or their mother, besides the performance of its statutory functions, from which an assumption of responsibility might be inferred.”
“…whether the individual members of a police force, in the course of carrying out their functions of controlling and keeping down the incidence of crime, owe a duty of care to individual members of the public who may suffer injury to person or property through the activities of criminals, such as to result in liability in damages, on the ground of negligence, to anyone who suffers such injury by reason of breach of that duty.”
“The alleged negligence of the police consists in a failure to discover [Sutcliffe’s] identity. But if there is no general duty of care owed to individual members of the public by the responsible authorities to prevent the escape of a known criminal or to recapture him, there cannot reasonably be imposed upon any police force a duty of care similarly owed to identify and apprehend an unknown one. Miss Hill cannot for this purpose be regarded as a person at special risk simply because she was young and female … The conclusion must be that although there existed reasonable foreseeability of likely harm to such as Miss Hill if Sutcliffe were not identified and apprehended, there is absent from the case any such ingredient or characteristic as led to the liability of the Home Office in the Dorset Yacht case. Nor is there present any additional characteristic such as might make up the deficiency. The circumstances of the case are therefore not capable of establishing a duty of care owed towards Miss Hill by the West Yorkshire Police.”
“In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. … The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime…. I therefore consider that… the Court of Appeal… was right to take the view that the police were immune from an action of this kind on grounds similar to those … in Rondel v Worsley[1969] 1 AC 191 .”
“whether the police generally owe a duty of care to individual members of the public, in the performance of their investigative function, to protect them from harm caused by criminals: a question to which, on the principles established prior to the Anns case and subsequently reinstated in Stovin v Wise, Gorringe’s case and Michael’s case… the answer was plainly no.”
“Leading counsel for the appellants submitted that a police officer investigating any crime suspected to have been committed, whether by a civilian or by a member of a police force, owes to the suspect a duty of care at common law. It follows, he submits, that the like duty is owed by an officer investigating a suspected offence against discipline by a fellow officer. It seems to me that this startling proposition founders on the rocks of elementary principle. The first question that arises is: what injury to the suspect ought reasonably to be foreseen by the investigator as likely to be suffered by the suspect if the investigation is not conducted with due care which is sufficient to establish the relationship of legal neighbourhood or proximity in the sense explained by Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562, 580-582 as the essential foundation of the tort of negligence? The submission that "anxiety, vexation and injury to reputation may constitute such an injury" needs only to be stated to be seen to be unsustainable. Likewise it is not reasonably foreseeable that the negligent conduct of a criminal investigation would cause injury to the health of the suspect, whether in the form of depressive illness or otherwise. If the allegedly negligent investigation is followed by the suspect's conviction, it is obvious that an indirect challenge to that conviction by an action for damages for negligent conduct of the investigation cannot be permitted. One must therefore ask the question whether foreseeable injury to the suspect may be caused on the hypothesis either that he has never been charged or, if charged, that he has been acquitted at trial or on appeal, or that his conviction has been quashed on an application for judicial review. It is, I accept, foreseeable that in these situations the suspect may be put to expense, or may conceivably suffer some other economic loss, which might have been avoided had a more careful investigation established his innocence at some earlier stage. However, any suggestion that there should be liability in negligence in such circumstances runs up against the formidable obstacles in the way of liability in negligence for purely economic loss. Where no action for malicious prosecution would lie, it would be strange indeed if an acquitted defendant could recover damages for negligent investigation. Finally, all other considerations apart, it would plainly be contrary to public policy, in my opinion, to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect. If no duty of care is owed by a police officer investigating a suspected crime to a civilian suspect, it is difficult to see any conceivable reason why a police officer who is subject to investigation under the Regulations of 1977 should be in any better position.”
“The case sought to establish a novel type of liability relating to the manner in which an investigation was conducted. Lord Bridge’s reference to policy considerations was directed to that claim: he was not addressing the question whether the police may owe a duty of care to avoid causing reasonably foreseeable physical injury in the course of their operations.”
“… I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the C.P.S. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the C.P.S. of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors to their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence. The C.P.S. would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the C.P.S. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of C.P.S. lawyers would be diverted from concentrating on their prime function of prosecuting offenders. That would be likely to happen not only during the prosecution process but also when the C.P.S. is sued in negligence by aggrieved defendants. The C.P.S. would be constantly enmeshed in an avalanche of interlocutory civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the C.P.S. and the quality of our criminal justice system.”
“But the core principle of Hill’s case has remained unchallenged in our domestic jurisprudence and in European jurisprudence for many years. If a case such as the Yorkshire Ripper case, which was before the house in Hill’s case, arose for decision today I have no doubt that it would be decided in the same way. It is, of course, desirable that police officers should treat victims and witnesses properly and with respect… But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. The prime function of the police is the preservation of the Queen’s peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence… A retreat from the principle in Hill’s case would have detrimental effects for law enforcement. Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence. Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim. By placing general duties of care on the police to victims and witnesses the police’s ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded. It would, as was recognised in Hill’s case, be bound to lead to an unduly defensive approach in combatting crime.”
“On ordinary principles, behaviour which is merely insensitive is not normally actionable, even if it results in a psychiatric illness” [60]. He cited paragraph 30 of Lord Steyn’s judgment in Brooks and said this [62]: “by endorsing the principle in the Hill case in the terms that he did, Lord Steyn confirmed that the functions of the police which he identified were public law duties and did not give rise to private law duties of care in the absence of special circumstances, such as an assumption of responsibility. Nothing in his reasoning is inconsistent with the existence of a duty of care to avoid causing physical harm in accordance with ordinary principles of the law of negligence. Lord Steyn plainly had no intention of undermining the confirmation in Hill’s case that the police were under such a duty of care. The passage cited was directed towards a different issue.”
“[93]… In Calveley it was held that there was no common law duty of care owed by an investigating police officer to another police officer. I agree with Mr Diamond’s submission that the distinction between Calveley and the present case is that the police are a statutory body obliged to investigate crime whereas the Bar Council is a disciplinary body of a single profession. Nevertheless the principles set out in Lord Bridge’s judgment at p1238 – 1239 are applicable to the Bar Council. In particular it would be equally contrary to public policy for the Bar Council to be fettered by the threat of negligence actions in their policing of the Code of Conduct, particularly when a strong independent fearless and competent Bar is required for the proper administration of justice. [94] I am therefore satisfied that no duty of care in negligence is owed by the Bar Council, the PCCC or its investigating officers to any individual member of the Bar. I note that Lord Bridge at p1238F said that where no action for malicious prosecution would lie, it would be strange indeed if an acquitted Defendant could recover damages for negligent investigation. That is equally applicable here …”
“Moreover I cannot accept, in the light of Jain v Trent Strategic Health Authority[2009] 1 AC 853 … that a tortious duty of care should be imposed on a body such as the GMC because to do so would or might inhibit the GMC in the performance of its duties including its duty to safeguard patients.”
“…The notion that a regulator owes the regulated a duty of care in this regard is a startling one for which no authority is cited. It would appear to be inconsistent with such authorities as Calveley v Chief Constable of Merseyside Police[1989] AC 1228 and Wright v Jockey Club Times16 June 1995 . I would need considerable persuasion for concluding that the proposition is anything other than fanciful.”
“…I happen to agree … based on the authority of Trent Strategic Health Authority v Jain that there could be no duty of care by a disciplinary body to a doctor or someone who is subject to the disciplinary body in the way that they conduct their proceedings, in the main, because of public interest considerations and the fact that it would be inappropriate for such a duty of care to arise in the context of a statutory disciplinary body. Therefore, even if Dr Rashid could show – and, actually, he has got no evidence put before the court at the moment that this is right – that the case officers were negligent in the way they prepared the case or, indeed, if the Panel were negligent in the way that they dealt with the case, that would not found a claim against the GMC.”
“…the case law, and in particular the case of Jain, is against the claimant. The decision of the House of Lords in that case was, in my judgment, correctly applied to an analogous situation by HHJ Gosnell in the case of Rashid. It seems to me, again for the reasons submitted by Mr Knight, that the reasoning in that case applies directly to the position of the GMC in this case. It seems to me that the submission that the GMC could owe a duty of care to those it regulates and in the course of these proceedings is one that simply cannot be derived from any case law. In the circumstances a claim based on such a duty of care would be bound to fail.”
“There is a higher statistical risk of suicide for doctors facing allegations. Furthermore, there is some evidence (Plunkett et al) that anaesthetists may be a sub-group at particular risk although this largely relates to availability of means to self-harm. Previous research in our department (Webb et al) has also shown that people charged with an offence, particularly a sexual offence, are at increased risk of suicide, even if they are acquitted. There is very little research on whether there is increased risk of mental ill-health where a doctor faces serious allegations and/or in the case of referral to the GMC. However recently Bourne and colleagues (Bourne et al) found in a large-scale survey that Doctors with recent/current complaints against them have significant risks of moderate/severe depression, anxiety and suicidal ideation. … Not everybody who faces allegations and referral to the GMC will be at risk of suicide, as individual risk factors will vary together with individual protective factors. However, doctors in this situation should be considered at higher risk of suicide compared with the general population, until an individual assessment of risk and protective factors is conducted which quantifies this risk. … The GMC should have been aware of the increased statistical risk of psychiatric injury and suicide in doctors facing serious allegations. In my opinion there should be an assumption of increased risk in all cases where doctors are referred to the GMC, particularly in cases where there is police involvement, in particular when the allegations are of a sexual nature…”
“the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”
“…school authorities, who carry an obligation to protect the health and well-being of pupils, in particular young children who are especially vulnerable and are under the exclusive control of the authorities”
“22. No decision of the ECtHR has been cited to us where the court clearly articulates the criteria by which it decides whether an article 2 operational duty exists in any particular circumstances. It is therefore necessary to see whether the cases give some clue as to why the operational duty has been found to exist in some circumstances and not in others. There are certain indicia which point the way. As Miss Richards and Mr Bowen submit, the operational duty will be held to exist where there has been an assumption of responsibility by the state for the individual's welfare and safety (including by the exercise of control). The paradigm example of assumption of responsibility is where the state has detained an individual, whether in prison, in a psychiatric hospital, in an immigration detention centre or otherwise. The operational obligations apply to all detainees, but are particularly stringent in relation to those who are especially vulnerable by reason of their physical or mental condition: see, for example, Keenan v United Kingdom 33 EHRR 913 (prisoner suffering from a mental disorder) and Tarariyeva v Russia(2006) 48 EHRR 609 (person detained in a prison hospital suffering from a serious physical illness). The significance of the assumption of responsibility was summarised by Lord Rodger in Mitchell v Glasgow City Council[2009] AC 874 , para 66: “The obligation of the United Kingdom under article 2 goes wider, however, In particular, where a state has assumed responsibility for an individual, whether by taking him into custody, by imprisoning him, detaining him under mental health legislation, or conscripting him into the armed forces, the state assumes responsibility for that individual's safety. So in these circumstances police authorities, prison authorities, health authorities and the armed forces are all subject to positive obligations to protect the lives of those in their care.” 23. When finding that the article 2 operational duty has been breached, the ECtHR has repeatedly emphasised the vulnerability of the victim as a relevant consideration. In circumstances of sufficient vulnerability, the ECtHR has been prepared to find a breach of the operational duty even where there has been no assumption of control by the state, such as where a local authority fails to exercise its powers to protect a child who to its knowledge is at risk of abuse as in Z v United Kingdom(2001) 34 EHRR 97 . It is not relevant for the present purposes that this was a complaint of breach of article 3 rather than article 2. 24. A further factor is the nature of the risk. Is it an “ordinary” risk of the kind that individuals in the relevant category should reasonably be expected to take or is it an exceptional risk? Thus in Stoyanovi v Bulgaria (Application No 42980/04) (unreported) given9 November 2010 , the ECtHR rejected an application made by the family of a soldier who died during a parachute exercise. At paras 59–61, the court drew a distinction between risks which a soldier must expect as an incident of his ordinary military duties and “‘dangerous’ situations of specific threat to life which arise exceptionally from risks posed by violent, unlawful acts of others or man-made or natural hazards”
“i. a real and immediate risk to life is a necessary but not sufficient factor for the existence of an Article 2 operational duty; ii. generally, the other necessary factor is the assumption by the State of responsibility for the welfare and safety of particular individuals, of whom prisoners, detainees under mental health legislation, immigration detainees and conscripts are paradigm examples since they are under State control; iii. however, the duty may exist even in the absence of an assumption by the State of responsibility, where State or municipal authorities have become aware of dangerous situations involving a specific threat to life which arise exceptionally from risks posed by the violent and unlawful acts of others (Osman) or man-made hazards (Oneryildiz, Kolyadenko ) or natural hazards (Budayeva), or from appalling conditions in residential care facilities of which the authorities had become aware (Nencheva, Campeanu); iv. Watts suggests that, in appropriate circumstances (which remain so far undefined), the operational duty may also arise where State or municipal authorities engage in activities which they know or should know pose a real and immediate risk (according to Maguire, an exceptional risk) to the life of a vulnerable individual or group of individuals.”
“190. When an individual is placed in a care home, a nursing home or a hospital, the state's operational duty in the targeted sense derived from Osman, para 116, does not involve an assumption of responsibility extending to taking responsibility for all aspects of their physical health, with the consequence that if he or she dies from some medical condition which was not diagnosed and treated in time the state's duty is engaged and the enhanced procedural obligation in terms of accountability is triggered. Even though the individual may not be at liberty, the state is not for that reason made the guarantor of the adequacy of healthcare provided to them in all respects, with an enhanced obligation to account if things go wrong. That would not be consistent with the established approach in relation to cases of alleged medical negligence and the approach adopted in the suicide risk cases discussed above. 191. I agree with Popplewell LJ's comment in Morahan (para 48), that: “This is consistent with principle because the article 2 operational duty is not one to take steps in the abstract, but rather to take steps to avert a specific risk to life; until the specific risk to life has been identified, it is impossible to answer the duty question. Just as in the domestic tortious law of negligence it is not sufficient merely to ask, ‘Is there a duty’ but rather, ‘Is there a duty not carelessly to inflict a particular type of damage?’, so too the article 2 operational duty must be examined and defined as a duty to take reasonable steps to avoid the specific risk to life which is relevant in the circumstances of a given case.” “This is consistent with principle because the article 2 operational duty is not one to take steps in the abstract, but rather to take steps to avert a specific risk to life; until the specific risk to life has been identified, it is impossible to answer the duty question. Just as in the domestic tortious law of negligence it is not sufficient merely to ask, ‘Is there a duty’ but rather, ‘Is there a duty not carelessly to inflict a particular type of damage?’, so too the article 2 operational duty must be examined and defined as a duty to take reasonable steps to avoid the specific risk to life which is relevant in the circumstances of a given case.”
“…where a contracting state had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent coordination among head professionals in the treatment of a particular patient are sufficient of themselves to call a contracting state to account from the standpoint of its positive obligations underarticle 2 of the Convention to protect life.”
“an obligation to take operational steps to protect a specific person or persons when on notice that they are subject to a risk to life of a particularly clear and pressing kind.”
“241. Lord Sales JSC states that such an operational duty arises when the state is “on notice that [the specific person or persons] are subject to a risk to life of a particularly clear and pressing kind” (para 10 above). However, the criterion is a “real and immediate” risk to life. A real risk is one that is objectively verified and an immediate risk is one that is present and continuing; see In re Officer L[2007] 1 WLR 2135 , at para 20. Lord Carswell in In re Officer L added that: “It is in my opinion clear that the criterion is and should be one that is not readily satisfied: in other words, the threshold is high.”
“I read his words as amounting to no more than a comment on the nature of the test which the Strasbourg court has laid down, not as a qualification or a gloss upon it. We are fortunate that, in the case of this vitally important Convention right, the Strasbourg court has expressed itself in such clear terms. It has provided us with an objective test which requires no further explanation. The question in each case will be whether on the facts it has been satisfied.”
“These factors commonly include: i) a history of mental health problems; ii) the gravity of the mental condition; iii) previous attempts to commit suicide or self-harm; iv) suicidal thoughts or threats; and v) signs of physical or mental distress.” i) a history of mental health problems; ii) the gravity of the mental condition; iii) previous attempts to commit suicide or self-harm; iv) suicidal thoughts or threats; and v) signs of physical or mental distress.”
“We absolutely acknowledge the real and immediate risk to life for any doctor subject to investigation and we are committed to continuing to improve the way we handle fitness to practise cases.”