Ma v St George's Healthcare NHS Trust [2015] EWHC 1866 (QB)

Case No HQ13D04019[2015] EWHC 1866 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30 June 2015
Before
SIR DAVID EADYSitting as a High Court Judge
Between
TAO MAClaimantST GEORGE’S HEALTHCARE NHS TRUSTDefendant
Kate Wilson (instructed by Weightmans LLP) for DefendantThe Claimant appeared in person for in personHearing Hearing dates: 8, 9 and 10 June 2015
JudgmentSir David Eady :Introduction
[1]It is unfortunate that this case has escalated as far as it has, giving rise to a considerable expenditure of public time and money, to say nothing of the stress and anxiety for those directly involved. The relevant events began on the evening of 12 August 2012, when the Claimant’s four year old daughter fell and cut her forehead. She was escorted in a neighbour’s car by the Claimant and her partner (who was also the child’s father) to the Accident and Emergency (“A&E”) department at St George’s Hospital in Tooting (which falls within the responsibility of the Defendant). It was what happened while they were there that underlies the present dispute. Some members of staff recorded their recollections of what later took place and these were communicated to others, to whom I shall shortly refer, but on a very limited basis. Those publications form the subject matter of these libel proceedings, which were commenced on 8 August 2013 and tried before me between 8 and 10 June 2015. (I record that the applicable law is that prevailing prior to the coming into effect of the Defamation Act of 2013, although I do not suggest that it makes any significant difference.)[2]There was available some CCTV footage of what took place in the A&E waiting area, but it is of only limited value and certainly cannot be determinative of what happened. It is not complete and rather “jumps” from one image to another. Moreover, there is no sound track and the most controversial incident in the course of the Claimant’s encounters with staff took place off screen.[3]I heard evidence, called on behalf of the Defendant, from no less than six members of the medical and nursing staff as to what took place. Each was cross-examined and challenged in certain respects by the Claimant, who had also given evidence herself. Her partner, who had been present throughout the critical period of time, was not called.

The allegations sued upon

[4]It is necessary to identify, at least in general terms, the allegations sued upon and which are said to be false and defamatory of the Claimant. By the conclusion of the case, it emerged that the complaint was confined to two publications only. These were identified as being contained in paragraphs 18(a) and (b) of the Claimant’s skeleton argument and Ms Wilson announced, at the commencement of her closing remarks, that she was proceeding on that basis: the Claimant did not demur. The first communication was that of a Children’s Specialist Services Referral Form sent to Ms Katy Sharpe, a social worker based at the Hospital premises, together with the daughter’s medical records. These included notes made by members of staff who had been present in A&E at the relevant times. The second publication was to Mr Tony Bowen, the on site health visitor liaison officer whose responsibilities included “child safeguarding”. He received a “Paediatric Liaison Health Visitor Referral Form” together with medical records (including the notes referred to above). In respect of the latter cause of action, the Defendant relies on qualified privilege and justification (or “truth”). The Claimant has responded by alleging malice so as to defeat, if necessary, any defence of privilege. So far as the first publication is concerned, there is a defence of justification but not of privilege. (Although the Claimant had originally been put to proof in respect of the issue of publication, I concluded that it is reasonable to proceed on the basis that the two communications would have reached, and been read by, the individuals to whom they were respectively addressed – and only those persons. I am not prepared to make any assumptions as to further publication.)[5]I do not believe it necessary to set out the contents of these sensitive documents in the body of this judgment, but only to focus on the largely uncontroversial meanings to be attached to them.[6]It was suggested by Ms Wilson for the Defendant that the real “sting” of the allegations, in so far as they are defamatory of the Claimant, was as follows; namely that on the evening in question she:(1) was confrontational towards staff;(2) persistently and unreasonably demanded immediate attention for her daughter, refusing to listen to staff’s explanations or to calm down, instead shouting at and being angry and aggressive towards staff;(3) argued heatedly and loudly with the child’s father;(4) attempted to remove her daughter from the hospital before she had been examined, despite contending her daughter needed immediate treatment and contrary to the father’s wishes; and(5) unjustifiably hit a member of staff twice.[7]I have concluded that the words complained of did indeed bear those meanings. Accordingly, for the purposes of the defence of justification, it is for the Defendant to establish that they were substantially true (relying, in so far as it may be necessary to do so, upon section 5 of the Defamation Act 1952).[8]The Claimant has pleaded the meanings rather differently, but not in my judgment so as to give rise to any substantial dispute. She has suggested, for example, that the words meant inter alia that “… [her] behaviour had been reprehensible in such a manner as to raise rational child safeguarding concerns for her daughter”. A reasonable person receiving either the communications in question would probably draw that inference from the very fact that they had been forwarded to persons having specific responsibility for “safeguarding” problems, as well as from the words themselves. It does not, however, in my view make any difference to the case which the Defendant has to establish for the defence of justification.[9]This matter would have to be judged according to the circumstances prevailing at the relevant time (i.e. during the evening of 12 August 2012). Any subsequent conclusions would not be directly relevant or capable of undermining such a defence. In this case, it was in due course, after a home visit, decided that no further action was required with regard to safeguarding. The Wandsworth social services file was closed on 6 September 2012. That does not mean, of course, that there were no rational grounds for concern at the material time.[10]In circumstances of this kind, there is inevitably involved an element of subjective impression. Each of the witnesses who gave evidence would, if truthful, be giving his or her impression of what happened. For example, one cannot measure precisely what is “heated” or “loud” in the course of discussions or what is “confrontational”. Some allowance has to be made for that, by asking whether a reasonable onlooker could or would have described the relevant conduct in those terms. I am not suggesting that the defence of justification is inappropriate for the reason that these words were comment rather than fact, but simply that some descriptive terms are flexible and imprecise. On the other hand, a court should be able to determine, yea or nay, whether if a witness was struck in the chest it took place in circumstances giving rise to a defence, as is alleged here, by way of self-defence.

The standard of proof

[11]The standard of proof in a civil claim of this kind is on the balance of probabilities. Which of competing or alternative scenarios is more likely to have happened? It is, however, recognised that the more serious, or the less likely, an allegation of fact appears to be, so the evidence in support of it will require to be correspondingly more cogent and persuasive. In this context, I was invited to consider the House of Lords speeches in Re D [2008] UKHL 33, [2008] 1 WLR 1499. This case provides an illustration. In so far as it is suggested that several professional witnesses have conspired to mislead the court about what happened, whether out of a desire to protect themselves from criticism or for any other reason, the evidence would need to be such as to overcome the prima facie implausibility inherent in such a scenario. Of course, it is possible that such wrongdoing may occur, and sometimes it does, as certain notorious cases in the past have demonstrated, but the judge (or jury as the case may be) needs to examine every aspect of the evidence with particular care before coming to such a conclusion.[12]I would add that in determining the cogency of evidence, in the face of conflicting accounts, the court will always guard against treating the exercise as a “numbers game”; that is to say, it cannot be right simply to hand the palm to whichever side has managed to muster the greater cohort of witnesses. In cases where a conspiracy really has taken place, it may well be that several people will be prepared to lie in order to advance their purpose. Close scrutiny is therefore required. I shall accordingly address the testimony of each of the witnesses who went into the witness box, individually, and I shall begin with those called on behalf of the defendant because it has the burden of establishing where the truth lies. It is also the case, as I have noted above, that they (or at least some of them) are alleged to have been prompted by malice in publishing what they did. Although in this respect the burden lies on the Claimant, it is intimately bound up with their primary evidence of what happened that evening and will be assessed at the same time.

The events of 12 and 13 August 2012

[13]It is clear from the Claimant’s own evidence that from the outset she would have preferred her daughter to go to St Thomas’ Hospital that evening but she was, as it were, outvoted by her partner and by the neighbour who drove them in his car because St George’s was closer. She said “… I believe from the past experience and also from the reputation of the medical team, St Thomas’ offer much better quality. Another important factor was that I believe the plastic surgeons at St Thomas’ would be much better because I was deeply worried about scarring”. As soon as she was seen by a member of the St George’s staff (a senior sister called Helen Solomon), she mentioned her concerns and that she would prefer her daughter to be treated at St Thomas’.[14]Christopher Jones has been qualified as a nurse since 2006, and for two years between January 2012 and January 2014 he worked in the A&E department at St George’s Hospital. He began work on 12 August 2012 at 7.30 a.m. and was the senior nurse on duty in the paediatric section at the time when the Claimant arrived with her partner and daughter shortly after 6.40 p.m. Although his witness statement was dated 17 September 2014, it was to a large extent founded upon his contemporaneous hand-written note made before he went off duty on 12 August 2012. His first involvement with the Claimant was when he was told by Ms Solomon that a four year old child had been admitted to the department and forewarned that her mother was proving “very difficult” and “erratic”. She was demanding that someone should see her daughter immediately.[15]Shortly after that, he noticed that the Claimant approached the nurses’ station in the paediatric waiting area (visible on the CCTV). She was carrying her daughter and was accompanied by her partner. He recalls (and noted at the time) that she stated that her daughter required a plastic surgeon to treat her. She denies saying this, despite the fact that it was a consideration already weighing in her mind as to where she should be treated, and her statement contains the following claim:
“It is very obviously fabricated to conveniently portray me as someone totally insane. It is absurd for any parent to request [a] plastic surgeon when we have not eliminated the risk of brain injury.”
[16]It is not only Christopher Jones, however, who recalls the references to a plastic surgeon. Dr Shalini Panchal also said that the Claimant repeatedly demanded that her daughter be seen by a plastic surgeon. She was at the time the emergency medicine registrar. That evening she was the senior doctor on duty in the paediatric A&E department and it was her role to lead the health care professionals on that shift and to provide support and guidance to the medical staff. Dr Catherine Hornby was another doctor on duty in the department (undergoing training at that time) and she too stated that the Claimant, who “appeared distressed and agitated”, requested that her daughter “be seen urgently by a plastic surgeon”. (She had also made a contemporaneous note recording this.)[17]I do not find that the references in the evidence to her requesting a plastic surgeon are “fabricated” or “convenient”. I cannot see why they should have introduced such a detail unless it had actually occurred. I do not understand why any of them, let alone all, had anything to gain by it. Also, as I have said, it was clearly something in the forefront of the Claimant’s mind, as her own statement bears out. The fact that she was prepared, in this context, so casually to introduce this accusation of “fabrication” against these witnesses is concerning: it rings warning bells as to her credibility more generally.[18]I was also rather surprised to hear her make the claim, in the course of her opening remarks, that the medical and health care staff at St George’s had a general prejudice against those who had been born outside the United Kingdom and believed that they were liable to be deficient in parenting skills. That is an allegation that seems to me not only to be without foundation, but also to betray a readiness to make “wild” and unsubstantiated generalisations if she thinks it will advance her cause. She even went so far as to say that “… I could not put my daughter’s life into the hands of people who have no compassion, who genuinely do not care about the life or death of their patients, who would not be accountable for their actions or inactions” (my emphasis).[19]Dr Hornby explained that she took the step of making notes that evening because the Claimant’s behaviour in the department had caused her concern. The same clearly applies also to Christopher Jones, who headed his note with the words “critical incident statement”. Although it was put in cross-examination to Dr Hornby, she firmly denied collaborating with Mr Jones in the writing of her statement. She said they were produced independently during the evening. I can see no reason to disbelieve her. It is quite clear to me that there must have been something unusual and noteworthy about the Claimant’s behaviour that evening for these busy people to feel the need to devote time to the making of a written record. Whereas the Claimant is unwilling to accept that she was other than a naturally anxious parent, I need to remember that the staff would be used every day to dealing with anxious parents in A&E. In itself, that would be unremarkable. This was plainly something out of the ordinary.[20]Christopher Jones heard Dr Panchal try to explain the procedure to the Claimant and he informed her that there were only two other children in front of her and that she would be expected to take her turn. He and other colleagues attempted also to explain the situation to her, but she continued to demand immediate or urgent attention.[21]In this context, it is important to explain, as Dr Panchal did while in the witness box, that a doctor or nurse can judge from a superficial (but still professional) examination that there is only a low risk of brain damage and that therefore a more formal examination can be carried out without a need to treat it as an emergency. There are obvious warning signs that can be detected, such as floppiness, pallor, difficulty in breathing or talking, listlessness or a glazed expression, which if present might alert a doctor or nurse to accelerate a more thorough medical examination. No such signs were present in the case of the Claimant’s daughter, as Dr Panchal confirmed from having given her such a “once over” herself. Specifically, she did not observe any drowsiness, despite the Claimant’s assertion to that effect in her “proof of malice”. On the contrary, she referred in evidence to the child as being alert and responsive. In her note of 23 August 2012, she recorded that, “I thought that as she was not immediately compromised … it was safe for her to wait to have her secondary assessment”.[22]The child would also have been observed in a similar way on arrival by Helen Solomon. She, as the Claimant later discovered, had allocated her a “green” categorisation (meaning that she was not in immediate danger and should be seen within two hours of arrival). Thus both she and Dr Panchal seem to have concluded without difficulty that there was no urgency and, importantly, there is nothing that has subsequently emerged to suggest that these initial assessments were wrong. Accordingly, it is all the more puzzling as to why the witnesses should have entered into a dishonest collaboration over their evidence. They simply had no reason to do so.[23]The Claimant denies that her daughter received any assessment at all until about 7.45 p.m. when notes were made by Dr Panchal following a more formal examination. She seemed to believe that the absence of earlier notes entails that no prior assessment of any kind had taken place. Dr Panchal explained, however, that it is quite usual for an informal early check to be made without there being any need, in a busy A&E department, to sit down and make a written record. Otherwise, as she said, they would spend a good deal of time making notes, inappropriately, rather than seeing patients and prioritising their needs. That is exactly what one would expect. In any event, Dr Panchal had asked the Claimant to take her daughter to a cubicle where a nurse could apply gauze and tape to the cuts on her forehead. This she refused to do at first and demanded to see a doctor at once. Eventually, she did agree to go into the cubicle (at approximately 7.08 p.m.). I believe that she is exaggerating, therefore, when she claims, “… my daughter kept bleeding and her face was still covered in blood … We waited for about 45 minutes holding a child who was very weak and bleeding”.[24]I also noted the evidence of Geraldine Fraher, who was the “named nurse” for safeguarding children. She is clearly very experienced and was a measured, thoughtful and patient witness. She met the Claimant on the following morning, 13 August, when she came to visit her daughter on the ward. She was there to support the ward sister and to help explain to the Claimant what was expected of parents and other visitors. They naturally wanted to ensure that there was not going to be any disruption on the ward. Ms Fraher described the meeting as lasting about ten minutes and as being cordial and professional. (Characteristically, the Claimant went “over the top” and stated that it was “a humiliating interrogation”.) Ms Fraher told me in the course of her cross-examination that the Claimant had actually then told her that she felt that her behaviour on the night in question had succeeded in getting her daughter attended to. (She had also included this in her statement of 28 August 2012.) In other words, the Claimant appeared to be admitting that she had been willing to draw attention to herself, and to make a fuss, in order to achieve her objective. That was a striking piece of evidence, and a rather surprising admission, but I find it consistent with the accounts of her behaviour at the time. Naturally, one can well understand (as did the doctors and nurses present) that a parent attending A&E with an injured child is likely to be in a state of some anxiety or even distress. That does not, however, necessarily excuse bad behaviour or justify a loss of self-control.[25]The staff were placed in a difficult position during the course of that evening and had to make judgments on the spot as to the most appropriate course of action. It is no doubt easy to criticise with the benefit of hindsight. Some may conclude that one or other of them should have taken a different course at some point. I am certainly not going to criticise their professional judgments myself, but even if one or more of them might now prefer in some way to have acted differently on mature reflection, I do not see that it makes any difference to the task I have to perform. I need to decide primarily whether the conduct of the Claimant herself was accurately described in the words complained of. I am not deciding a claim against the Defendant or members of its staff for negligence, false imprisonment or some other breach of duty. The questions I have to address are primarily whether they published any materially false allegations about the Claimant and also, if they did, whether in communicating specifically with Mr Bowen they, or any of them, were malicious. I approach the evidence on that basis.[26]Christopher Jones explained that he saw the Claimant becoming increasingly agitated and angry. She was demanding immediate treatment for her daughter and was shouting loudly so as to draw attention to herself. He said that he was at a loss to understand her behaviour and that she was simply not listening to what she was being told by him or his colleagues. This was entirely consistent with the testimony of the other staff who were present in and around the waiting area at various stages; in particular, Dr Hornby, Dr Panchal and Ms Jane Wilson (a senior nurse in the paediatric department). The CCTV footage is of limited value, but would seem to show that most of the heads in the waiting room were turned towards her. One can certainly see her partner appearing to try to calm her down and to reason with her. He was throughout, it seems, quite content that their child should remain where she was and be treated at St George’s. That is one of the particular difficulties confronting the staff. Those with parental responsibility were strongly and vocally disagreeing about what should happen and, in particular, as to whether she should stay or move on to St Thomas’. Because of their concerns over her “erratic” behaviour, Jane Wilson asked the Claimant’s partner whether she had any mental health problems, to which he replied rather disconcertingly that he did not know. He added that “there is no calming her down when she is like this”. That clearly did nothing to allay their concerns. Specifically, they were anxious to avoid the mother’s conduct damaging the best interests of her daughter.[27]In these rather unusual circumstances, the attitude of the staff, and Mr Jones in particular, was that a duty was owed to protect the child’s best interests in the meanwhile and, for so long as the parents disagreed, that it was better for her that she should remain until she had undergone a more thorough examination to eliminate brain injury. Thereafter, although she would need to have her wounds dressed and some plastic surgery on her forehead, it would be safe for her to leave and go elsewhere (if that is what the parents wanted).[28]Dr Hornby told me that at some point “… the claimant’s partner asked for our help in ensuring she did not leave”. Unfortunately, there came a point when the Claimant made to leave the premises with her daughter in her arms and despite the wishes of her partner. The explanation she gave was that “… having sensed the tension and the unfriendliness my daughter had repeatedly said that she did not want to stay at St George’s and that she wanted to be treated at St Thomas’”. I am afraid I do not believe that a four year old child would express herself in this way. Furthermore, it is inconsistent with the note made by Jane Wilson:
“I explained [to the father] that we want the best for [his daughter]. I thanked him for his support. Dad then spent time reading to [her]. They appeared to have an excellent relationship. During the process [the child] appeared unfazed by mother’s outbursts.”
[29]By this time, a member of the security staff had been alerted and, on arrival, was advised to wait outside in the corridor with a view to preventing the child being taken away. The father asked Christopher Jones, “What do I do?” His response was to advise him to “take control” of his daughter in case it became necessary to escort the Claimant from the premises. Mr Jones stood at the doorway in front of her and told her not to leave. (This is what led her later to refer several times to having been “falsely imprisoned”.) She nevertheless, according to Mr Jones, pushed into him as if to go past. His evidence was as follows:
“I went to take hold of the Claimant’s daughter. My responsibility was the safety and care of that child who was injured. I was ensuring the child remained in a safe and secure environment as at that time the team and myself had no information nor evidence to explain her injuries.”
[30]In case this sounds unduly alarmist or high handed, I should explain by way of context that child “safeguarding” concerns are not uncommon in the paediatric A&E department. The channel of communication with the available social workers, such as Ms Sharpe and Mr Bowen, seems to be well trodden. Indeed, it was explained by Jane Wilson in cross-examination that the frequency of contact is such that they have a multi-disciplinary “safeguarding meeting” most weeks. The medical staff, whenever they have such concerns, do not attempt to investigate or resolve them in the department, but have a responsibility to pass them to the social workers on site. According to my note, Geraldine Fraher told the Claimant, while she was in the witness box, “It was your behaviour on the night that led to the referral. It is not our job to work out what is going on. We hand it over to social services”.[31]At all events, Christopher Jones told me that the Claimant complained that when he had reached for the child he had touched and hurt one of her nipples. He denied doing so. She now says, in her recent “proof of malice”, that he “… grabbed part of my nipple and he pulled hard”. She said that she then “… screamed in pain and cried, ‘You pulled my nipple, it is really painful!!” It was at this point that he alleges that she struck him twice in the chest. This incident took place in the presence of Dr Hornby, who confirmed that she heard the accusation that Mr Jones had touched her nipple, but that it was not true. She added, “The Claimant then physically hit Nurse Jones twice in the chest with her right arm. I had a clear view of this and was shocked by the Claimant’s behaviour”. She added that another doctor, Sharon Jueeta, remonstrated with the Claimant and tried to “placate” her, saying that she should stop shouting at Mr Jones and that “the staff did not deserve that abuse”. The Claimant denies that Dr Jueeta was present at this time, but what Dr Hornby wrote later that evening was that, after she had struck Mr Jones in the chest, Dr Jueeta “… then came outside to try and placate situation (sic) and asked the mother to stop shouting at Christopher, and that staff do not deserve abuse”. I see no reason to disbelieve this account, although it is true to say that in her more formal statement Dr Hornby later described Dr Jueeta as having been “also present”, and “… standing in something a bit like a circle”, at or before the time when Mr Jones was struck. I am not sure that there is any inconsistency in these two accounts – albeit differently worded. In any event, it makes little difference to the substance of the matter, but I accept Dr Hornby’s evidence that Dr Jueeta was present at the time of the incident.[32]What I thought might have happened here is that one of Mr Jones’ hands momentarily came into contact with the Claimant’s nipple (obviously outside her clothing) accidentally. She herself did not suggest that he did it deliberately. She might then have instinctively reacted by pushing him in the chest. If so, that would to an extent mitigate the alleged “assault” upon him, while not necessarily excusing it altogether. I thought at first that this would be the most likely explanation for what took place. Yet such an interpretation would be difficult to reconcile with the Claimant’s most recent accounts, in her “proof of malice”, where she referred to her having “… no choice but to use minimum self defence which bought me time to call the police”. She gave this explanation twice, the second time stating, “… I then had to use the minimum self defence which gained me time to call the police”. This seems to exclude the “instinctive” explanation and to support the (initially surprising) evidence that she chose to strike him deliberately.[33]Mr Jones said that the Claimant did indeed call the police on her mobile and he heard her tell them that the hospital staff “did not care” about her daughter.[34]Meanwhile, Dr Panchal had called Dr James Cameron, the A&E consultant on duty, to come and give support. At that time, he had overall responsibility for the running of the A&E department. He arrived at about 7.30 p.m., although I believe by coincidence rather than by way of responding to the call, in time to hear the Claimant telling the police that her daughter had not been seen quickly enough and/or that they had refused to treat her. He did not suggest that this was her only complaint to the police: he did not deny, for example, that she may also have mentioned the alleged assault by Mr Jones. He was merely recording what he heard her say when he arrived on the scene. He too chose, at about 10.45 p.m., to make written notes of what had occurred earlier that evening.[35]On one version of the Claimant’s account, as I understood it, she denied hitting Mr Jones at all, claiming that she did not have an arm free to do this. She was holding her daughter in her right arm and two bags in her left. It is true to say that the CCTV shows her being handed two bags by her partner before she left the waiting area. On the other hand, Dr Cameron told me that when he saw her in the corridor the Claimant had the bags and her daughter on her left arm, while she was holding her phone in the other hand. When this transfer had taken place I cannot say for certain. It may not matter much, however, in the light of the Claimant’s recent admissions that she chose to strike Mr Jones in order to gain time. (The Claimant later sought to clarify the position by saying that she only hit Mr Jones, and could only have done so, after the child had been taken from her – thus freeing her right arm.)[36]When he saw the Claimant, Dr Cameron approached her as she was obviously unhappy and shouting at members of staff, including Mr Jones:
“She was clearly agitated and was shouting at me and my colleagues. The Claimant’s behaviour was highly unusual. She seemed out of control. In my view her behaviour was erratic.”
[37]No one suggested that the Claimant was swearing at the staff, but they took the view that she was “abusive” in the sense of shouting and being aggressive towards them. I accept the evidence that she was “shouting”, but I do not find her explanation convincing; namely, that “… I had to speak with a louder than usual voice in such an environment to get the staff’s attention”. If one thing is clear, it is that the Claimant had no difficulty whatever that evening in engaging the staff’s attention. Indeed, Dr Panchal recorded in her statement of 23 August 2012 that she had had to apologise to other patients for the noise and disruption she had caused.[38]Eventually, Dr Cameron managed to calm her down and she agreed to return to the paediatric unit to allow her daughter to be given a more detailed examination. Later, in a separate conversation, he told her that her daughter would need to stay in overnight and that a plastic surgeon would arrange a general anaesthetic in the morning. She then shook his hand “effusively”. But later when a bed became available she began again to press for her daughter to be taken to St Thomas’, whereupon Dr Cameron told her that this was not in the child’s best interests and he insisted on behalf of the hospital that the father should stay with her on the ward, while the Claimant should leave the hospital and return in the morning. She mentioned to him that she might be making a court application to overrule her partner’s wishes – or she might not. She now states that “Dr Cameron forced us to undergo treatment at St George’s against our wishes”. While I accept that he advised her in the terms I have described above, it is quite untrue to say that he “forced” anyone – certainly not the Claimant’s partner, who had been willing that his daughter remain at St George’s. Jane Wilson recorded his attitude at the time: “Whilst the consultant was speaking to Mum, I spoke to Dad. I apologised if this had caused him distress. He was very supportive and keen to stay with [his daughter]. He stated that whatever happens this will be his fault + she will blame him.” (In the event, the operation went ahead and all was well.)[39]It seems to me that “erratic” is a fair description of her conduct generally that evening. More significantly, however, as Dr Cameron observed, “… her verbal abuse and the physical shove to a member of staff was entirely unacceptable”.[40]A police officer arrived in the course of the evening and spoke to Mr Jones and the Claimant about the incident in the corridor. Nothing further came of it.[41]It may well be that at the time the “shove” occurred the Claimant was holding her daughter and the bags in her left arm, as Dr Cameron had noticed, but I am in any event satisfied that Mr Jones and Dr Hornby are telling the truth when they recount that the Claimant struck him in the chest. It may not have been particularly hard, but it was certainly inappropriate and unjustified. Again, the Claimant asserts that the witness statements of Dr Cameron and Dr Hornby are “obviously fabricated”, but this seems to me wholly implausible. I find it impossible to believe that Mr Jones or Dr Hornby lied about it. Not only did they impress me as reliable and careful witnesses, but they had no reason to make it up. Moreover, as I have already noted, the Claimant accepts that she struck him deliberately – although she puts it in the context of “minimum self defence”. I see no legitimate basis for that. I cannot believe that Mr Jones had struck her or was intending to do so. The way she put it at one point in her “proof of malice” (at p.74 of the bundle) was that “… they are closing in on me”. That appears not to be directed at Mr Jones specifically. I am satisfied that he was concerned only to protect the child’s best interests. Thus, whichever of the Claimant’s accounts one examines, it provides no support for the argument based on self-defence. It was a most unfortunate incident, but not in itself especially serious.[42]I would add that I believe the Claimant is mistaken in her recollection when she says in her reply (at para. 48), “These staffs who claim to have witnessed the assault could not possibly have seen it as the incident happened in the corridor outside the closed double doors of the Children’s A&E”. Dr Hornby gave a very clear account of where she was standing in the doorway in relation to all of the other protagonists. She seemed to me to be recounting a vivid recollection of what was, for her, an unusual and memorable occurrence.

The credibility of the Claimant

[43]As to the Claimant’s credibility, I formed the view that she is given to exaggeration and overstatement. I have already cited some parts of her evidence which seem to bear this out (see e.g. paras 15, 17, 18, 23, 24, 31, 33, 38 and 41 above). She describes herself as a university lecturer and “role model” to her students. Yet, despite this, I formed the view that she lacks objectivity and is too ready to perceive herself as under attack from others “ganging up” on her. It is part of the same pattern that anyone who sees things differently from her must be lying and/or motivated by malice. There is no room for light or shade in her account; nor any inkling of acceptance that she could even be partially responsible for what occurred. It is always the fault of someone else.[44]She claimed originally in her “proof of malice” that the first time any observations were done was at 20.45 “4 hours after we arrived at the A&E”. She did point out that this was a misprint for 19.45, but where “4 hours” came from I fail to understand. She also said, without any foundation, that “it was going to be at best another few hours wait to see the paediatrician”. Yet, despite all the alarms and excursions, she was seen by Dr Panchal at 7.45 p.m. She had already been told, as I accept, that there were only two children in front of her and that there should not be a long delay.[45]I have earlier mentioned that the Claimant is also, as she apparently admitted to Ms Fraher, prepared to manipulate situations to what she perceives to be her advantage. Judging from what she told her, for example, she appears to believe that she managed to “jump the queue”, by making an exhibition of herself, even though the truth is that she would have undergone Dr Panchal’s formal assessment by 7.45 p.m. in the ordinary course of events. She told Ms Fraher that, had she not adopted her approach that evening, “her child could have been waiting for hours”. That is nonsense.[46]I need to approach her evidence with great caution. In so far as her account was inconsistent with those of the witnesses I have identified, I preferred their testimony. She undoubtedly was behaving unusually, even allowing for all the natural anxiety which she and her partner were experiencing, and drawing attention to herself in a noisy and disruptive manner. That is what led the experienced A&E staff to make notes of what had occurred.

My conclusions on the defence of justification

[47]The defamatory allegations I find to be substantially true. So far as “safeguarding” is concerned, I have little doubt that the staff who referred the incidents to the social workers were genuine in their concerns at her apparently irrational and erratic behaviour and its possible implications for her daughter’s welfare. Fortunately, nothing came of it and it was recognised upon closer investigation that she had a good relationship with her. That does not mean that the concerns were not genuine at the time they were expressed.[48]I was impressed in this context by the evidence of Ms Wilson and Ms Fraher, the two witnesses with particular knowledge of such matters, which seemed to me entirely convincing. There is nothing remarkable about that in view of the responsible positions they hold and the experience they have gained in child safeguarding. (I shall have to return to this in addressing the pleas of privilege and malice.)[49]The Claimant objects to various comments made by Ms Wilson in the paediatric liaison referral form, including “Please see notes – Mum’s behaviour. Mum assaulted staff member”. She made a similar entry on the specialist services referral form. Although she was not present at the “struggle” herself, I have no reason to believe that she was purporting to do anything other than recount accurately what she had been told by trusted colleagues. I reject the suggestion that “she was deliberately distorting the facts in order to justify the referral” or that she “was very ill motivated”.[50]She concluded her “proof of malice” by challenging the content of a record made by an unnamed member of staff whose writing she could not identify. It contained the comment “Mum … apparently has physically and verbally abused members of staff (I witnessed verbal abuse – shouting and abusive words)”. The use of the word “apparently” would indicate that the person was simply recording what he or she had been told, so far as “physical abuse” was concerned, and only directly bearing witness to “verbal” abuse. The Claimant added that “all the staff’s statements deliberately omit … the background information that we were falsely prevented from leaving”. That is not true, since the incidents which she characterises as false imprisonment (involving Mr Jones and Dr Cameron) are described in the relevant statements, as I have summarised above (albeit not, of course, conceding “false imprisonment”). She added that “this unnamed staff had an ill intention to paint [me] as someone violent and even narcissistic in order to justify the later forced removal and the subsequent social services referral”. I need say no more than that I have seen no evidence to support this charge either. Her real complaint is simply that the statements do not agree with any of her own versions of what occurred – and because of this she concludes that there must be a conspiracy against her. (This is why the issues of justification and malice constantly overlap.)[51]It is true that the Claimant referred several times that evening to the fact that she wished to make a formal complaint about her experiences and kept calling for a complaint form (which someone had gone to collect). She also threatened to go to a newspaper. For the avoidance of doubt, I make clear that the Defendant accepts that this was her entitlement and neither of these matters is put forward as supporting the plea of justification.

Qualified privilege

[52]Ms Wilson took me to the basic principles of qualified privilege and invited specific attention to the decision of the Court of Appeal in Clift v Slough Borough Council [2010] EWCA Civ 1171, [2011] 1 WLR 1774, which is concerned with how the common law of privilege should now be applied in the light of the Human Rights Act 1998 and the need to balance competing rights in the context of defamatory publications when they are promulgated, as here, by a public authority.[53]Where genuine concerns arise as to child safety or safeguarding, in the course of examining or treating a young patient, there would plainly be a duty on the part of a nurse or clinician to communicate those concerns to the appropriate quarter. It would not be acceptable merely to ignore them. Again, it is important to recognise that the matter has to be assessed in the light of the circumstances as they presented themselves during the evening in question. Subsequent events, including the outcome of any investigation by the relevant people, cannot alter the position as at the time of publication. (Whether the concerns were genuine is, of course, an issue closely linked to that of malice.)[54]As Geraldine Fraher observed on 28 August 2012:
“Whenever parents are noted to be aggressive and especially when physical aggression is demonstrated, concerns will be raised for the emotional and physical well-being of the child. …The desire by mother to take her child elsewhere did not seem to be in the child’s best interests and was a contradiction of mother’s demand for her child to be treated immediately. It was also against the wishes of the other parent. Consequently in this situation a referral to children’s specialist services and checking with other agencies was entirely appropriate.”
[55]In this hospital, there is a recognised channel; namely, by way of the Paediatric Liaison Health Visitor Referral Form addressed to the Defendant’s own health visitor liaison department. So too, there would be a corresponding interest or duty on the part of the relevant person (e.g. Mr Tony Bowen) to receive and act upon that information. This would involve, in the first instance, making such enquiries as were deemed appropriate in the particular circumstances. In so far as any such communication refers to an adult in a way which may be damaging to his or her reputation, it is likely to pass the tests of being necessary and proportionate. Wider publication among persons not having any direct responsibilities for such matters may well fall outside the protection of privilege: see e.g. Clift,at [33]-[36]. But I have no doubt that the communication to the liaison department was protected, subject to the issue of malice to which I shall now turn.

Malice

[56]Particulars of malice were served rather late in the day, on 14 May 2015, as a result of an order by Judge Moloney QC on 8 May. They are rather prolix and consist largely of assertion and speculation. Allegations of malice are taken very seriously and should not be introduced lightly or as a matter of routine. In most cases, they will involve an allegation of dishonesty. Not surprisingly, therefore, findings of malice in defamation trials are very rare. Here, the Claimant sets out to prove that some of the hospital staff made allegations about her which they knew to be untrue at the time they were made. She says that they simply did not see or hear her behaving as they describe and must, therefore, have made it up. Thus it is clear that the issues of malice and justification are closely linked. I have found that the allegations made about the Claimant were substantially true and thus there is no reason to suppose that, when recording their impressions, the various members of the team were other than honest in doing so.[57]Her allegations of malice were made without any of the careful circumspection that is usually to be applied by professional pleaders in such circumstances. She cannot be criticised for being a litigant in person, of course, but I need to approach her allegations with particular caution. They were expressly made against several of the staff, including Dr Cameron, Dr Panchal, Dr Hornby, Ms Jane Wilson and Mr Christopher Jones. For reasons already explained, I cannot accept that malice has been established against any of them.[58]As I mentioned earlier, she made further unsupported allegations against the unnamed member of staff whose signature she could not read and also against Ms Sarah Huf. Neither of these people was called and I have been given no reason to believe that either of them was motivated to make up lies about the Claimant or to join in a conspiracy to portray her in a false light. It is no more than bare assertion.[59]What the Claimant seems to be suggesting is that staff used the referral procedure spitefully as a weapon to punish the Claimant for her behaviour or for her willingness to make a complaint. If that were so, it would be quite outrageous, but I have seen no reason to think that any of those involved would have behaved in such a manner. All the witnesses appeared to me to be responsible and dedicated professionals. I cannot accept that any of them, whether acting singly or by way of a conspiracy, would have done any such thing. They were simply confronted in the course of their duties with an injured child accompanied by a parent who was behaving irrationally and erratically, and who wanted to take her away before her head injury had been fully assessed – despite the wishes of the child’s father. They naturally thought that the matter should not be “brushed over” or ignored and, therefore, they made a reference, as they regularly have to do, to the appropriate on site social workers with “safeguarding” responsibilities.

The Claimant’s other complaints

[60]The Claimant will have observed that I have said nothing, so far, about the earlier means of redress she pursued. That is because they seem to me to have nothing directly to do with the very specific issues I have to resolve. Nevertheless, as she attaches significance to them in her pleadings and in her evidence, I will mention them purely for the sake of completeness.[61]Her initial complaint to the hospital on 19 August 2012 was rejected. Then, she complained also to the Parliamentary and Health Service Ombudsman. That eventually resulted in a letter from a caseworker dated 19 June 2013 in which he concluded (on the papers before him) that the appropriate action had been taken to resolve matters. That refers to steps taken by the Defendant whereby it implemented proposals from the Ombudsman’s office. These were to the effect that the Claimant’s own account of matters should be added to the hospital records. Thus anyone who read the offending allegations about her would at least have her side of the story available alongside.[62]The case worker also asked the Trust to apologise for what he characterised as “the error in judgment leading to the referral to social services” by 10 July 2013. This was done, but without any reference to those who had actually made the decision at the time. They still take the view that they made the correct decision on the evidence before them and profoundly disagree with the caseworker’s assessment which, remarkably, they had not seen before the trial. In any event, an “error of judgment” would not equate to malice.[63]Since August 2013, the Defendant’s medical records have included(i) the Claimant’s rebuttal of the allegations against her,(ii) the Ombudsman’s decision of 19 June 2013, and(iii) the Defendant’s letter of 10 July 2013. This is generally recognised as being the appropriate way of dealing with challenges to the content of medical records. It is not good practice simply to delete information in response to a request, whether on behalf of the relevant patient or otherwise: see the guidance for the relevant period (dated January 2010) from the National Information Governance Board for Health and Social Care. This was explained at page 8:
“Completely removing one or more pieces of information from a record so that no one knows it was ever there can be like taking a chapter out of a book – the following chapters often do not make sense. … [I]t can make it difficult for professionals to understand the record, and it may not be reliable.”
[64]The steps taken have thus achieved as much as the Claimant can reasonably expect, if not more, in respect of her complaints about her experiences at the Defendant’s hospital.

Conclusion

[65]In the circumstances, I will dismiss the claim.

Cited in 1 later judgment