A v General Medical Council

B e f o r e :

THE HONOURABLE MR JUSTICE CHARLES ____________________

____________________

David Wolfe (instructed by Leigh Day & Co) for the Applicant Thomas de la Mare (instructed by General Medical Council solicitors) for the Respondent Hearing dates : 2 and 3 February 2004 ____________________

HTML VERSION OF JUDGMENT ____________________

Crown Copyright ©

Mr Justice Charles

Introduction

This is an application for judicial revue by Miss A acting by her litigation friend and father. Miss A was born on 23 May 1985, she is now 18. The Respondent is the General Medical Council (the GMC).

The decision that is the subject of challenge is one made by the Professional Conduct Committee (the PCC) of the GMC on 22 September 2002. That decision was that a Dr Cheetham was not guilty of serious professional misconduct. The hearing before the PCC flowed from a complaint made by Miss A's parents. That complaint was considered first by the Professional Proceedings Committee (the PPC) of the GMC. Miss A's parents were represented before the PCC. As I understand it the costs of that representation were met by the GMC, who formally remained the body bringing the charge against Dr Cheetham before the PCC, but the practical effect of that representation was that through it Miss A's parents presented and pursued the charge of serious professional misconduct heard by the PCC. I shall therefore refer to submissions being made to the PCC on their behalf although formally they were made on behalf of the GMC.

The terms of the charge of professional misconduct heard and determined by the PCC, and the matters relied on in respect of it, were formulated by the GMC after consultation with the lawyers acting for the parents (and the GMC as the formal prosecutor). This was therefore a case in which the parents of Miss A played a central role in formulating the charge and allegations that Dr Cheetham had to meet and thus the issues before the PCC.

Dr Cheetham has taken part in these proceedings but after permission had been granted he "bowed out" on the basis of an exchange of correspondence in October 2003 between the solicitors acting for the Applicant who confirmed that "we will not ask for the case to be remitted back to the GMC". Since then Dr Cheetham has taken no part in the proceedings but has been copied the papers therein.

On the first day of the hearing there was some confusion as to whether the Applicant was seeking an order quashing the decision of the PCC given (a) the arrangement reached with Dr Cheetham, and (b) the stated wish of Miss A and her parents that they would not seek (and as I understood it did not want there to be) another hearing before the PCC. The problem identified in the skeleton arguments was that it seemed that the Applicant was still seeking a quashing order and if such an order was to be made it would be the Professional Practice Committee of the GMC (the PPC) who decided whether there should be further proceedings before the PCC of the GMC. The correspondence pursuant to which Dr Cheetham "bowed out" refers to the GMC (rather than to either or both the PPC and the PCC) and to my mind understandably the leading counsel who had acted for Dr Cheetham before the PCC wrote to the court and the parties inviting the court to hear him (on behalf of Dr Cheetham) on remedy. That leading counsel attended in court as an observer on the afternoon of the first day of the hearing.

On the morning of the second day counsel for the Applicant told me that he was no longer seeking a quashing order. In my view he and his clients were right to take this decision. Also, and in my view correctly, he considerably modified the declaration sought in written submissions. However counsel for the Applicant maintained his submission that the PCC had erred in law and that as there had been some general interest and comment on the decision of the PCC and the issues raised by, or underlying, this case I should make a finding as to this submission of error of law and a declaration. His assertion of some general interest was based on some coverage of this case in the press and in discussion shown to me in print outs from a BMJ webpage, but both the BMA and the Secretary of State were served with these proceedings and have indicated that they do not wish to take part. I shall return to this.

I should add at this stage that I have sympathy with the submissions made on behalf of the GMC that (a) it has not been clear from the judicial review form and the lengthy skeleton argument put in on behalf of the Applicant what her case is, and (b) she is now seeking to advance arguments that differ from those in respect of which permission to issue the proceedings was given. However in my view counsel for the GMC was correct not to pursue an argument under CPR Part 54.15 that the Applicant should be refused permission to rely on additional grounds.

As will appear later in my judgment there is a short answer to this application for judicial review on the basis that the issues before the PCC did not raise the points relating to (a) the effect Miss A's parents wishes and instructions that Dr Cheetham should not be involved, and (b) duties of confidence, which it was argued before me give rise to points of general interest and warranted declaratory relief initially in a wide form and later in a limited form. But as they were argued I propose to deal with them.

Some background

Miss A's illness

Happily Miss A is now reasonably well. Over the period leading up to and during the time that the acts of Dr Cheetham that were the subject of the proceedings before the PCC took place (June 1997 to the end of July 1999) this was not the case and Miss A was seriously unwell. The reason for this was that she was suffering from what I, like others, shall for convenience call ME.

There are a number of descriptions of the symptoms of Miss A's illness in the papers. The following account is set out in a witness statement of her solicitor dated 28 January 2003. I quote:

As that statement shows from June 1997 when she was 12, to mid 1999 when she was 14, Miss A was bedridden at home.

Professor Sir David Michael Baldock Hall has prepared a statement for the purposes of these proceedings. At the time he did so he was President of the Royal College of Paediatrics and Child Health. His statement has been approved by his successor, the current President. Commenting on the account of Miss A's health given by her solicitor, Professor Hall says:

Given Miss A's illness and its effect it seems to me clear that not only would the overwhelming majority of paediatricians have been profoundly concerned so would:

It is clear that this was the case with Miss A's parents who the PCC described as intelligent loving and devoted parents whose paramount concern has been for their daughter's welfare.

The emotional and general strain on Miss A's parents was enormous.

Assumptions

In considering the issues raised on this judicial review the focus is inevitably on matters asserted by Dr Cheetham in documents referred to in the Charge List. Much of what he asserted was (and is) disputed by Miss A and her parents (and I imagine her treating doctors and the local authority).

I would therefore like to make it clear that nothing in this judgment is intended to be, or should be read as, a criticism of Miss A, her parents, her treating doctors or those in the local authority who made decisions about her. I accept that:

Indeed I assume and proceed on the basis that as Miss A's parents assert, and have throughout asserted (a) the local authority should never have brought proceedings under s. 31 of the Children Act for a care order or a supervision order in respect of Miss A and that if the local authority had done so the court would have dismissed the proceedings, and (b) Miss A should never have been registered in the Child Protection Register. These assumptions reflect the background of the participation of the local authority in this case.

As appears later in this judgment a court can determine that a child should receive medical treatment that his or her parents have refused to authorise, and disagree with, in proceedings brought under the inherent jurisdiction (in which I include wardship) or Part I of the Children Act. In such proceedings the court is the decision maker and the welfare of the child is its paramount consideration. I shall also assume that if the issue of Miss A's treatment had been put before the court in such proceedings the court would have concluded that she should be treated in accordance with the wishes of the family and thus as she was treated.

These assumptions however do not mean that the relevant local authority should not have taken steps to determine whether Miss A should have been registered on the Child Protection Register, whether public law or other proceedings should be issued, or whether it should without any such registration or proceedings take an active part in the lives of Miss A and her family with their consent.

It also follows, and was not disputed, that my assumptions do not mean that others concerned with the promotion of the welfare of children were precluded from considering whether Miss A was suffering, or was at risk of suffering, significant harm or from taking appropriate steps to promote her welfare having regard to their conclusions.

Relevant provisions of Parts IV and V of the Children Act 1989

These were the parts of the Children Act that were focused on in argument.

Section 31 of the Children Act sets out the threshold which has to be established before a court can in the exercise of its discretion make a care order or a supervision order and, as a result, empower and oblige a local authority to intervene in the life of a child and his or her family. It (like other thresholds enabling a public authority to intervene in the life of a family) is an important safeguard.

Section 31 contains the following provisions:

This threshold condition (and the definitions) should be remembered when s. 47 of the Children Act is considered. Section 47 is a provision with its own thresholds that imposes a duty on a local authority to make enquiries to enable them to decide what action they should take in respect of a child and thus his or her family. One of those thresholds is when the local authority have " reasonable cause to suspect that a child ----- is suffering, or is likely to suffer significant harm ". One of the possible courses of action following a s. 47 enquiry is the issuing of proceedings, another is the provision of assistance to safeguard or promote the welfare of the child pursuant to the general duty imposed by s. 17 Children Act (or specific powers) with or without registration in the Child Protection Register. It can thus be seen that there is link between s. 31 and both (a) the threshold in s. 47, and (b) the courses of action a local authority might take following a s. 47 enquiry.

The above mentioned trigger for the duty imposed by s. 47 namely " reasonable cause to suspect " is lower than the trigger for other provisions (e.g. ss. 31, 38, 44, 46). This reflects the purpose of the duty imposed by s. 47. That duty is to make enquiries to enable properly informed decisions to be made. In my judgment this trigger also informs persons other than the local authority as to circumstances which may warrant them taking steps in connection with the care and welfare of a child.

The sources of information from which a local authority may form the view that there is " reasonable cause to suspect --- that a child is suffering or is likely to suffer significant harm" may be diverse and can be based on the views and observations of social workers or outsiders. It can also be based on a consideration of a wide range of factors from different sources which individually would not found that belief. It follows that a piece of information provided by, for example, a school teacher or a doctor may not of itself establish this threshold but would be relevant to a consideration of whether it exists. In my view it is important to remember this when considering the actions of Dr Cheetham that are criticised by the Applicant and her parents.

In a case where a child is seriously ill and is therefore suffering, or likely to suffer impairment to health or development (and thus harm as defined) the threshold condition in s. 31 has two further elements that have to be satisfied namely:

In applying s. 31 (and other provisions of the Children Act) the courts apply a purposive and not a legalistic approach (see for example Newham London Borough Council v AG [1993] 1 FLR 281) and understandably there is little authority on the application of the definition of "significant" and who an appropriate comparator should be.

The attribution provision in s. 31(2)(b) sets a standard of care and is judged objectively (see Lancashire CC v B [2000] 2 AC 147 at 169 B/C). It is an important part of the threshold which has to be established before a public authority can interfere on a non-consensual basis in the life of a family.

On a pragmatic and purposive approach to the welfare of a child who is seriously ill the determinative issues relating to the threshold set by s. 31 are likely to be based on the care that the child has been receiving and is likely to receive if the local authority does not become involved. This is the case whether those issues are assessed by reference to an actual or hypothetical comparator, or the attribution provision.

Inherent jurisdiction and Part I of the Children Act

Many cases in which the court becomes involved in issues as to what medical treatment should be given to a child are not brought under Part IV Children Act. A recent well known example is Re A (Conjoined Twins: Medical Treatment)) [2001] 1 FLR 1 . This route to the court becoming involved, and indeed becoming the decision maker, was not gone into in any detail before me although its existence was recognised. The judgments of Ward LJ and Robert Walker LJ in Re A cover the family law issues that arose and thus, for example, the nature of the jurisdiction, the role of the court and the approach to be taken to the views of the parents (for example see Ward LJ at pp 27C, 30C to 31G, 32G to 35D and 49D to 54G and Robert Walker LJ 101G to 104E and 118 H). Those passages show that the views of the parents are entitled to very great respect but when the jurisdiction of the court is invoked in this way it is the court that is the decision maker and it has to decide what will best promote the welfare of the child. Welfare is not confined to medical best interests (see 34G to 35B).

More generally proceedings relating to medical treatment of a child

However,where proceedings are brought before the court there will be fact sensitive issues. For example here there is the issue not present in Re A that the parents had told Dr Cheetham that they did not wish him to take any further part in, or in respect of, the treatment of their daughter; indeed this lies at the heart of their complaints and case.

It is also to be noted that the statutory formulation of both the standard of care and the definition of "significant" introduce issues such as those that exist in this case relating to the role of a parent to give consent for, and thus to choose, the medical treatment that they think should be given to their child. Further, as I have mentioned, under the inherent jurisdiction the views of the parents are entitled to very great respect. But this is not the place to discuss or decide the nature and extent of any differences in respect of (a) the approach to the views and decisions of parents under the first stage of proceedings under Part IV Children Act (i.e. the threshold test), (b) in the application of the welfare test in such proceedings and (c) in proceedings under the inherent jurisdiction and Part I Children Act. Also this is not the place to discuss or decide (a) when it would be appropriate to issue proceedings under Part IV and when proceedings under the inherent jurisdiction and/or under Part I would be appropriate, or (b) the nature and extent of the interests of persons who may be permitted to issue and pursue proceedings under the inherent jurisdiction or Part I.

Here the backdrop was participation of the local authority rather than the issue of proceedings by a treating NHS Trust, or one that was not involved in the treatment of the child. But if the local authority had decided that the court should become involved a possibility would have been that they would have sought permission under s. 100 Children Act to issue proceedings invoking the inherent jurisdiction of the court.

In this case the importance of the ability and role of:

is that in contrast to the position of an adult patient of sound mind concerning his or her treatment, Miss A and her parents do not have complete control over the treatment of Miss A. This in turn means that they cannot by reference to their instructions, or to duties of confidence, prevent others from taking proper steps in and about the consideration of whether proceedings should be issued or whether other action should be taken or continued by the local authority (or others) to promote the welfare of Miss A. Clearly in a case where proceedings are appropriate preliminary action, investigation and discussion will also have been proper and appropriate. To my mind it is equally clear that the fact that action, discussion and investigation concerning the welfare of a child do not lead to the issue of proceedings or further action by a local authority does not mean that such action, discussion and investigation was unlawful or inappropriate. In my view it is important to remember this when considering the actions of Dr Cheetham that are criticised by the Applicant and her parents.

Duties of confidence and Article 8

Unsurprisingly there was no real dispute between the parties on the law relating to duties of confidence owed by a doctor to a patient (and the parents of a child who is the patient). There was also effective common ground (a) that in the circumstances of this case the positive and negative obligations on the State derived from Article 8 concerning the relationship between doctor and patient were discharged by the common law duty of confidence, but (b) that Article 8 informed the approach at common law particularly as to an assessment of the public interest.

Duties of confidence arise in many situations but the relationship between doctor and patient is often used as an obvious example of a relationship in which a duty of confidence arises.

A duty of confidence limits the use and disclosure of confidential material for purposes that are either (a) expressly or impliedly authorised by the person or persons to whom the duty is owed, or (b) in the public interest. What is impliedly authorised naturally depends on the circumstances in which the confidential material was provided and, in my view, where the proposed use or disclosure of the confidential material is to promote a public interest there can be an overlap between arguments on justification based on implied authorisation and the public interest.

Competing public interests

Where there are competing public interests they have to be weighed to determine whether a use or disclosure of confidential material would be, or was, in the overall public interest. As Sedley LJ explains in paragraphs 55 to 59 of his judgment in London Regional Transport v Mayor of London [2001] EWCA Civ 1491 , [2003] EMLR 4 the principle of proportionality should be used in the weighing exercise that has to be undertaken to determine where the overall public interest lies.

In this and other cases relating to children two titans of the public interest are engaged, namely the well established and high public interests in:

Therefore it is necessary to determine where the overall public interest lies if a doctor wishes to, or has, used or disclosed information provided to him, or obtained by him, in connection with the treatment of a child for purposes relating to the welfare of that child if that use or disclosure has not been authorised, or has been forbidden, by his or her parents.

This is a judgmental exercise that requires a consideration of various competing interests and it is commonly referred to as a balancing exercise (see for example R (S) v Plymouth City Council [2002] 1 WLR 2583 at paragraph 48 of the judgment of Hale LJ). I was referred to this case by counsel for the Applicant as an example of the focussed balancing that must take place between the justification for, and the extent of the interference with, the confidentiality in medical and similar information. I agree that it is such an example; there are many more. In my view the nature of this exercise means that it is not appropriate to extract from the judgment of Lord Donaldson in Re C (a minor) (wardship: medical treatment) (No 2) [1989] 2 AER 791 at 794 his reference to a compelling public interest pointing in favour of publication or use and to treat that as the test. This is because the need for a compelling reason flows from the strength of the public interest in preserving confidentiality and thus founds the need to identify a public interest which would be served by the proposed use or disclosure and which is strong enough (a) to "do battle" with the public interest in preserving confidentiality, and thus (b) to trigger the balancing act. Further the point that the proposed disclosure or use would serve a strong competing public interest could be said to provide a compelling reason for disclosure but what it does is to trigger the balancing exercise. That exercise will involve the consideration of a number of factors that have general application and a number of factors that relate to the particular facts of a case.

General factors that are likely to be relevant in the balancing exercise include (a) the reasons that underlie the competing public interests, (b) the roles of the courts and the local authority in respect of child protection and issues concerning the medical treatment of children, (c) the role of the parents of a non Gillick competent child and the respect that should be accorded to their views, (d) the roles of others involved in the relevant use and disclosure and the need for there to be cooperation and communication between people who acquire information that may impact on issues relating to the welfare of children (e.g. doctors, health visitors and teachers) and local authorities who have statutory duties relating to the promotion of the welfare of children.

Another important general factor that was accepted by both sides is that there is an important distinction between (a) disclosure to a person or persons who are aware of the confidentiality of the information and who in connection with the purpose for which the information is disclosed have a role to play in its consideration or evaluation, and (b) more general disclosure or publication. This is recognised in a number of cases in this and other fields (see for example, R v Egdell [1990] 1 AER 835 at 852 concerning the disclosure by a doctor to a responsible decision making body and Price Waterhouse (a firm) v BCCI (Luxembourg) SA and others [1992] BCLC 583 at 602c). This factor is linked with the point that consideration should be given to the questions whether the use or disclosure that is proposed is reasonably necessary to meet the public interest that it seeks to serve and whether that public interest could be as well served by a different course being taken that involved a more limited use or disclosure of the relevant confidential material or which avoided its use or disclosure (as to that I was referred by analogy to R (Daly) v Secretary of State for the Home Department [2001] 2 WLR 1622 at paragraphs 18 and 31). Thus for example disclosure to a local authority or another doctor may be a proportionate response that was justified in the overall public interest whereas a wider disclosure would not.

In my judgment when considering statements concerning the nature and importance of duties of confidence owed by a doctor to a patient and the use or disclosure of information covered by those duties it needs to be remembered that the positions of an adult and a child patient are different. The difference flows from the autonomy of an adult patient of sound mind and his or her right to refuse treatment which is different to the position of a child and his or her parents because of the ability of the court to make decisions relating to the treatment of a child under the inherent jurisdiction or the Children Act. Thus in the case of a child patients there are public bodies who can override the decision of the parents.

Child protection

Those who are regularly involved in child protection issues are well aware that sadly in some cases of children who are very ill, or who are showing signs of serious illness, or who are confined to their home, the standard of care the child is being given, or is likely to be given, by his or her parents (and others) falls short of the level set by the statute (i.e. the care that it would be reasonable to expect a parent to give) even when the parents of the relevant child love that child and are concerned to promote his or her welfare. The reasons for this vary. Also the facts of each case need to be carefully assessed to determine whether the care falls short of the standard set by the statute.

The problems of, the pressures on, and the anxieties of parents in the position of Miss A's parents are exacerbated by the backdrop and possibility that a local authority and/or a court might conclude that the care they have given, or are likely to give, to their child (as a result of the treatment they have given or consented to and are likely to give or consent to) is not what it would be reasonable for a parent to give their child or that a court might authorise treatment that the parents disagree with. In other words such problems etc. are exacerbated by the power of the court to give consent to treatment that the parents disagree with or to empower a local authority to do this by the making a care order.

These problems etc. very understandably cause pressure between the parents of such a child and people who do not share the views of those parents as to how their child should be cared for. In this case these problems etc. were compounded for the parents, the doctors and others concerned to make, or to assist in the making of, decisions as to what course of action would best promote the welfare of Miss A by the differences in medical opinion concerning (a) the cause or causes of ME, and (b) the regime of care and treatment of people who suffer from it. Such problems are not confined to ME.

Miss A's parents have done a considerable amount of research into ME and they are (and were at all material times) of the view that their daughter's illness was an organic condition rather than either a psychiatric condition or a mixture of an organic and psychiatric condition. Their researched and clear lay view lies at the heart of their differences and problems with Dr Cheetham and other health professionals in the area in which they live.

The view of Miss A and her parents on the basis of their research and observations was supported by a Dr Speight who is based in Durham (some 200 miles from the home of Miss A). He, like Dr Cheetham is a consultant paediatrician. Further Dr Speight's views confirmed those of Miss A's parents.

There is a considerable amount of material before me which shows the divergence of medical opinion concerning ME and its cause. However I am not in a position to assess the merits of the competing views, or with any precision where in the spectrum of those views the respective approaches of Dr Cheetham and Dr Speight lie.

The assumptions I have made earlier mean that I have proceeded on the basis that the views of Dr Speight are ones that it was reasonable for Miss A's parents (and the local authority) to adopt on the basis that they are recognised by a competent body of medical opinion. I however pause to add that I accept that:

In any event, in my view, common sense clearly indicates that as Professor Hall says, Miss A was a child about whom he and he suspects the overwhelming majority of paediatricians would have been profoundly concerned (see paragraph 12 hereof).

Like Professor Hall as I understand it the care advocated by Dr Speight and adopted in this case was what Dr Speight describes as "therapeutic nihilism". After referring to this Professor Hall goes on to say in his statement, and I accept, that:

The Charge List

This is set out in the first schedule to this judgment with the small amendments made to it by the PCC when making their findings.

The Decision Letter

This begins by referring to the hearing dates, the admissions made by Dr Cheetham and the standard of proof. It was and is common ground that the GMC (and thus in practice here Miss A's parents with the help of legal representation) had to prove the case against Dr Cheetham to (or effectively to) the criminal standard. The letter then states that the PCC had considered "each head and sub-head of charge individually", which accords with the advice given by the legal assessor and agreed by the legal advisers of Miss A's parents and Dr Cheetham.

As to the facts asserted in paragraphs 1 to 4 of the Charge List the findings and admissions recorded in the letter mean that all of the assertions in paragraphs 1 to 4 (b)(iv) in the amended Charge List are found proved or admitted with the exception of paragraph 4 (b)(iii) which is not found proved.

The letter then continues as follows:

A chronology with comment

My papers helpfully contain a bundle of correspondence that was before the PCC. The correspondence I refer to is in that bundle.

I should record that I have not forgotten (a) that the papers before me indicate that there were further communications both by telephone and fax between Miss A's parents and for example Dr Cheetham that are relevant, or potentially relevant, (b) that Miss A's parents did not accept the accuracy of the minutes of the first child protection conference (CPC), or (c) that the documents before me do not include all those that were before the PCC and they do not show a full picture.

It was submitted in writing on behalf of Miss A that for the purposes of this judicial review there is little dispute as to the facts, but it is clear from the written arguments put in on behalf of Miss A and the GMC that this is not so. As mentioned earlier, I am not in a position to determine disputes of fact. However, some of the disputes and relevant issues relate to the effect, or interpretation, of particular documents and in my judgment where I do so I am able to comment and reach the conclusions I do on such matters notwithstanding (or in the light of) the underlying factual disputes and the point that I do not know the whole of the relevant context.

In my view when considering (a) the charge and the allegations against Dr Cheetham, and (b) the findings of the PCC it is important to remember Miss A's state of health over the period of the matters listed in the Charge List. As to this I have cited the description given by Miss A's solicitor. By early June 1997 Miss A had been in bed for two months and at the suggestion of Dr Earley she was referred to Dr Cheetham by her GP (Dr Masters) for a second opinion. Dr Cheetham visited the family at their home where he saw Miss A for a short time (around 10 minutes) and discussed the history and present position with her parents. Dr Cheetham reported to the GP in a letter dated 5 June 1997 in which he said (amongst other things):

As appears from that letter the family had already contacted Dr Speight who had advised that hospital admission as recommended by Dr Cheetham was contra indicated. I also note that the approach of Dr Cheetham to doctors who it was said disagreed with him was that their advice should be sought on a proper and professional basis and not that it should not be sought at all.

It is apparent that the family much preferred Dr Speight's advice. It is also clear from the minutes of the CPC held on 21 July 1997 (pursuant to a referral on 8 July 1997) and the comments made by the parents on those minutes that over the period leading up to Dr Cheetham's visit in early 1997, and after it, problems had arisen between Miss A's parents and health professionals in their area. I make this point neutrally and its inclusion is not to be taken as a criticism of the parents or the health professionals.

The disagreement of Miss A's parents with the treatment proposed by Dr Cheetham is shown by a letter dated 11 June 1997 from them to Dr Cheetham. This is the first letter referred to in the Charge List. By it the parents make clear that they do not want Dr Cheetham or Wycombe Hospital to be involved in the treatment of their daughter. They say:

Dr Cheetham replied on 12 June 1997 and this is the second letter referred to in the Charge List and in it he said that he would have no intention of trying to see, or treat, Miss A against the wishes of the family but that he had very serious concerns about her and if others asked his opinion as to what should be done for Miss A he would of course give his professional opinion on the basis of what he knew. On 7 July 1997 the Deputy Chief executive of the NHS Health Trust responsible for Wycombe Hospital wrote to Miss A's parents stating (amongst other things):

On 8 July 1997 Miss A's case was referred to the local authority by her GP's practice. As a result a child protection conference (a CPC) was held on 21 July 1997.

Miss A's parents wrote a long letter dated 25 August 1997 commenting on the minutes of the CPC held on 21 July. In that letter Miss A's parents expressed their disagreement with parts of these minutes. I have accordingly read them with the comments made by Miss A's parents in their letter of 25 August 1997 in mind. Naturally I am not in a position to resolve the differences between these two records of what occurred at the CPC held on 21 July 1997.

At the start of the minutes of the conference held on 21 July 1997 the following passages appear which are not commented on by Miss A's parents in their letter:

The minutes end with two passages under headings 'Summary' and 'Decision' in the following terms:

I pause to comment that it seems to me that:

In their comments on those minutes the parents of Miss A say amongst other things :

I pause to comment that these comments indicate that there was considerable tension between Miss A's parents and in particular those who were suggesting treatment and management with which they did not agree. In particular it appears that there were earlier tensions and problems between Dr Cheetham and the family when Miss A first became ill. These were not gone into before me or (as I understand it) the PCC.

Returning to the comments of Miss A's parents their letter also includes the following:

It is apparent from Dr Cheetham's letter dated 5 June 1997 (see paragraph 61 above) that Dr Speight had been contacted before Dr Cheetham's visit in June 1997, and after the first CPC in July 1997 the GP (Dr Masters) wrote to Dr Speight on 23 July 1997 setting out the problems that existed and Dr Speight visited the family home on Saturday 2 August 1997. The letter from the GP is not in the bundle.

Dr Speight reported to the GP by a letter dated 5 August 1997 which he copied to (amongst others) the parents and Dr Cheetham. Dr Speight's report sets out a history of Miss A's illness and ends with the following paragraphs:

Dr Cheetham replied to Dr Speight by a letter dated 13 August 1997 (which is the third letter referred to in the Charge List). To my mind this letter from Dr Cheetham raises important issues relating to child protection. It is in robust terms as indeed was the letter from Dr Speight. Miss A and her parents take what is described in the Applicant's skeleton argument as major objection to the tone of, and to some of the content of, this letter but it was not asserted before me that the letter does not express Dr Cheetham's views. Given the relevance and importance of those views to child protection issues I find it difficult to see how Dr Cheetham could have responded to Dr Speight's letter (which was copied to him amongst others) without referring to them. Also, and although some of the criticisms of Dr Cheetham's language are accepted, in my view it would be extremely difficult (if not impossible) to make such views known in terms that would not, or would not be likely to, offend Miss A's family if they were passed on to them. It was not Dr Cheetham who provided a copy of his letter to Miss A's parents although Dr Speight had copied his letter to them.

It follows from what I have said that in my view this letter of 13 August 1997 from Dr Cheetham contained information that was relevant to the CPC due to be held on 27 August 1997 because Miss A was not being referred to Great Ormond Street Hospital. This was accepted before me by counsel for the Applicant.

Further in his skeleton argument counsel for the Applicant stated that Miss A did not object that Dr Cheetham wrote to Dr Speight at this stage and in his oral submissions, it was not asserted that Dr Cheetham had acted wrongly or unjustifiably in writing this letter. In my view counsel was correct to accept this.

The only remaining objections were therefore to the tone of that letter and to some of its content.

This was not the position of Miss A and her parents before the PCC. For example, this is demonstrated by the advice of the legal assessor (which was agreed by the legal representatives of the parents and Dr Cheetham) where he says that:

This shows that before the PCC it was said that by seeking to influence the management of Miss A's treatment after 11 June 1997 by amongst other things writing the letter of 13 August Dr Cheetham acted improperly.

Further in the judicial review claim form it was asserted that it was important that:

and although it was asserted that the CPC on 27 August 1997 was one of the significant changes in circumstances in that period, in the Claim Form it was still being asserted that Dr Cheetham had acted improperly by writing the letter of 13 August 1997.

What I regard as being a correct change of position at the hearing before me in respect of the letter of 13 August 1997 is of significance because it is also an acceptance that the letter of 11 June 1997 by which Miss A's parents made it clear that they did not want Dr Cheetham or Wycombe Hospital to be involved in the treatment of their daughter does not mean that Dr Cheetham cannot properly raise points in respect of that treatment. This acceptance is correct and undermines an important point in the earlier arguments and position of Miss A and her parents namely that following the letter of 11 June 1997 Dr Cheetham had no good or reasonable cause to act as he did.

It was also alleged in the judicial review claim form that the CPC on 27 August found that:

and it was asserted that:

As to those assertions I comment that:

These points undermine important elements in the arguments and position of Miss A and her parents before the PCC and on this judicial review. This is because (a) the first is an acceptance that if Dr Cheetham had a reasonable cause to raise issues relating to the treatment of Miss A it would not necessarily be improper for him to raise them with persons other than the local authority, and (b) the second means that child protection issues relating to Miss A in which I consider Dr Cheetham had an understandable and legitimate interest remained in being after the CPC.

The papers before me do not contain a letter from Miss A's parents commenting on the minutes of the CPC held on 27 August 1997. In my view the passages at the end of the minutes of that conference under the headings 'Summary' and 'Registration / Decision' need to be read in full and in their context and thus with knowledge of the background to that adjourned conference. Those parts of the minutes read as follows:

It is clear that at this conference the local authority were faced with a difficult situation. To my mind the conclusion reached that Miss A should not be registered on the Child Protection Register (and thus inevitably that public law proceedings should not be commenced) is obviously one that was made in the context of the decision that a co-ordinated and multi disciplinary approach was called for and that social services should play a part in that approach. Inevitably part of that approach would be a consideration of the involvement of a local paediatrician (as recommended by Dr Speight and as to which the minutes record the recognition of a problem) and regular reviews of Miss A's health and the general situation relating to her care and welfare.

Thus although this decision of the local authority was a watershed in that it was decided to take the route recommended by Dr Speight and supported by the parents, in my view it was not (and was not based on) either (a) a conclusion that Miss A was under no risk of significant harm, or (b) the concerns in question (i.e. those relating to the choice of management) were groundless. Rather in my view it is a proper recognition by the local authority of:

Naturally the point that there was to be a multi-disciplinary approach and review does not mean that it was likely that there would be, or should be, a change from the general approach recommended by Dr Speight to that recommended by Dr Cheetham. For example, as anticipated as a possibility, a local paediatrician was not retained to give advice but this did not lead to a substantial change because, as I understand it, the GP continued Miss A's management at home with the help of advice from Dr Speight who also visited from time to time. But it is inherent in the decision made at the CPC:

In other words, and as is demonstrated by the continued agreed involvement of the local authority, this decision does not amount to a decision by the local authority to close the case and leave everything to the family and the treating doctors chosen by them.

Naturally this decision at the CPC was important. Further it would have been a great relief to Miss A's parents and was understandably regarded by them as a vindication or confirmation of the stance they had taken relating to their daughter's treatment. Indeed it was a decision that that approach should be adopted. But in my view it is wrong for Miss A and her parents to seek to rely on it:

Looking at the position from Dr Cheetham's position he, like others, was very concerned about Miss A's welfare, he had properly been involved in the decision making process of the local authority and the decision taken by them, as the relevant public authority, was not in line with the course of action which he as a paediatrician believed was likely to best promote Miss A's welfare.

To my mind it follows that as and when Dr Cheetham heard about, or was asked about, or thought about Miss A, he would be anxious to see whether she was improving and/or whether assertions which in his view were appropriate and correct were being made about for example test results, her condition or her progress. In my view this is the natural and very understandable reaction of a paediatrician in Dr Cheetham's position and the statement of Professor Hall supports this conclusion.

The actions after the second CPC relied on by Miss A's parents in support of the charge of serious professional misconduct against Dr Cheetham appear in the Charge List. All of them were admitted or found proved except the matter in paragraph 4 (b)(iii). I should add by reference to the bundle before the PCC that:

It was argued on behalf of the Applicant that the finding of the PCC as to paragraph 4 (b)(iii) of the Charge List must be based on a conclusion that Dr Cheetham was entitled to act as he did and thus as an acceptance (and finding) that he did seek and obtain access to confidential information. Although I accept that this may reflect the thinking of the PCC in my view this is not clear because (a) the records referred to in paragraph 3 (b)(i) of the Charge List and the correspondence referred to in paragraph 3(f) of the Charge List were records of the NHS Trust employing Dr Cheetham (and Dr Maratos) and although this alleged thinking might apply to those records it also seems to me that the PCC might have thought that Dr Cheetham did not "seek and obtain" such records, and (b) the request referred to in paragraph 3 (b)(ii) was refused. Further to my mind the correspondence referred to in paragraph 3(f) of the Charge List (see paragraph 92(v) above) and the assertion that the description of Miss A's current condition in it was wrong both indicate that Dr Cheetham and Dr Maratos did not obtain access to confidential information about Miss A's ongoing (my emphasis) care as alleged in paragraph 4(b)(iii) of the Charge List.

The Rival Contentions

The easiest way to explain the rival contentions after oral argument is to start with the position of the GMC. It is that when the charge and the issues before the PCC are correctly identified the PCC did not err in law. In so submitting the GMC accepted that the PCC could have expressed themselves better and in particular that their references to a "right to intervene" should not have been included and should have been replaced by references to a justification for Dr Cheetham's actions or intervention.

In identifying the nature and extent of the charge and the issues before the PCC, the GMC assert that it is important to remember that the PCC was not concerned with an action for breach of confidence but with a charge of serious professional misconduct. The GMC say that when this is done it can be seen that the nature and effect of the charge and the issues before the PCC were that:

The Applicant accepts that the issues set out above were before the PCC but argues (a) that the charge and the issues as put included allegations as to breach of confidence, and (b) that these allegations were steps on the way to a charge and finding of professional misconduct.

Thus the Applicant says that the charge and the issues extended to cover a further allegation that if (contrary to the contention of Miss A's parents) Dr Cheetham was found to have (or as the PCC found it was not proved that he did not have) reasonable cause to suspect that Miss A was suffering, or was likely to suffer, significant harm he was nonetheless guilty of serious professional misconduct because what he did was not a proportionate response having regard to his duties of confidence and the competing public interests.

On that basis the Applicant argued that the finding of the PCC is legally flawed because notwithstanding their conclusion relating to whether Dr Cheetham had reasonable cause to suspect that Miss A was suffering, or was likely to suffer, significant harm (and thus seek to influence her treatment) the manner in which, as the PCC found, he sought to influence Miss A's management and treatment after 11 June 1997, and thus the steps he took as listed in the Charge List, could (not should) have founded a conclusion that he was guilty of serious professional misconduct.

I shall refer to the argument set out in paragraphs 98 and 99 as the "Breach of Confidence Argument".

In my judgment this submission of the Applicant is wrong and the GMC's assertion as to the nature and effect of the charge and the issues before the PCC is correct. Thus in my view the Breach of Confidence Argument was not put to the PCC.

I found this conclusion primarily on (a) the Charge List, (b) the closing submissions of both counsel before the PCC on Day 8 (21 September 2002) and (c) the advice of the legal assessor which was agreed to by both sets of legal advisers. As to that advice although confidentiality is referred to this is not done in the context and detail one would expect if the Applicant is correct. The same can be said of the Charge List. But perhaps most tellingly the final submissions made by counsel acting for the GMC as "prosecutor" (and thus for the reasons I have explained effectively for Miss A's parents) do not deal with the alternative argument based on the detail of the steps taken and why by reference to each case it was said that step was so disproportionate a response that alone, or together with other steps, it founded a finding of serious professional misconduct.

Counsel for the Applicant drew my attention to a letter from the MDU before the Charge List was formulated but if anything the references therein to breaches of patient confidentiality run counter to his argument when they are read with the formulation of the later Charge List and the submissions before the PCC. Further Counsel drew my attention to the detailed references to the matters complained of and listed in the Charge List in the closing submissions of both sides before the PCC. I agree that there are such references, and that the PCC in their decision letter say that they have considered each head and sub head of charge individually. But such references and consideration are not made or expressed by reference to the alternative basis of establishing the charge that Counsel for Miss A asserts was put before the PCC. Rather they go to the issue whether as was being asserted by counsel for the GMC (and thus in practice Miss A's parents) before the PCC that Dr Cheetham (a) had no reasonable cause for suspecting that Miss A was suffering or was likely to suffer significant harm, and (b) had no good reason for acting as he did based on child protection.

The Applicant's alternative argument

In the alternative the Applicant argued that if it was found that the Breach of Confidence Argument was not put before the PCC nonetheless this court should hold that the PCC erred in law because they should have had regard to it and thus the points of law on which it is based. In support of this argument I was referred to a number of well known cases on judicial review which were set out in Appendix 1 to the Applicant's skeleton argument in which the passages relied on were cited. I shall not set these out.

Early in the written argument the question is posed in the following terms by reference to a citation of what is meant by illegality in CCSU v Minister for the Civil Service [1985] AC 374 at 410: "The issue for the Court is thus: did the PCC understand the relevant law and give effect to it?". I would not dispute that but in my view the word "relevant" is important and derives from the citation which refers to the law that regulates the decision making power of the public body.

In my judgment it is important to remember that what the PCC was charged with doing was to decide whether Dr Cheetham was guilty of serious professional misconduct in the manner alleged and this distinguishes this case from the other cases cited on behalf of the Applicant and means that in this case the relevant law (a) is confined to the issues of law that were relevant to determine the charge and issues as put before the PCC and thus as to whether Dr Cheetham had any justification for the actions that were complained of, and (b) does not extend to cover the issues relating to whether what he did was, or was not, a proportionate response having regard to his duties of confidence and the competing public interests (and thus the Breach of Confidence Argument).

Put another way in my view the PCC was not under any duty to consider whether the charge of serious professional misconduct could have been advanced and established in an alternative way and therefore a public law challenge on the basis that they erred in law in failing to consider the Breach of Confidence Argument fails.

As appears later I am also of the view that this alternative argument of the Applicant would fail because in my view the Breach of Confidence Argument would have been doomed to failure.

The short answer

As mentioned earlier in this judgment (see paragraph 8) in my view there is a short answer to the challenge of the Applicant and it is that for the reasons set out under the previous heading the Breach of Confidence Argument was not put to the PCC.

The prospects of establishing serious professional misconduct on the basis of the Breach of Confidence Argument

As Counsel for the Applicant advanced this argument at length both in writing and orally I feel able to express a view on this point.

Firstly I record my agreement with the submission made by Counsel for the GMC that in the absence of bad faith or some improper motive or some other special circumstance it is likely that it would be difficult to establish serious professional misconduct on the basis that the actions of a doctor were a disproportionate response and thus in breach of a duty of confidence. Perhaps this is why the charge was not pursued on this basis.

The finding of the PCC on what they referred to as the overriding principle and potentially the most comprehensive justification for Dr Cheetham's conduct, and thus on whether Dr Cheetham had reasonable cause to suspect that Miss A was suffering or was likely to suffer harm, is expressed in terms of the test they posed by reference to the onus of proof (which was not criticised) but in my view when combined with their reference later to the legitimate concerns of a doctor (i.e. Dr Cheetham) means that the PCC were satisfied that Dr Cheetham acted in good faith and not for an improper purpose.

In view of that finding in my judgment there was no realistic prospect of establishing that Dr Cheetham had been guilty of serious professional misconduct on the basis of the Breach of Confidence Argument.

As appears earlier in this judgement in my view the foundations of the Breach of Confidence argument are flawed in two respects, namely:

It seems to me that these flaws underlie the reaction of Miss A and her parents to discovering that Dr Cheetham had taken the steps referred to in the Charge List (see for example the father's letter dated 12 March 1998).

I accept that as they assert Miss A and her parents were upset and distressed by the discovery of the matters listed in the Charge List even though it appears that they had had no effect on Miss A's treatment after the second CPC. It seems to me that this reflects a view of the family that following the letter of 11 June 1997 (by which the parents made clear that they no longer wanted Dr Cheetham to be involved in the treatment of their daughter) and the second CPC (at which the decision was made to follow the course recommended by Dr Speight) it was necessarily wrong and a breach of Dr Cheetham's duties to them (or as asserted in the letter of 12 March 1998 in direct breach of medical ethics) for Dr Cheetham to do anything further, or to be involved in any way, in respect of the treatment of Miss A.

Given this view of the family it is understandable that when the family discovered the matters listed in the Charge List they were upset and annoyed but as I have explained it is an incorrect view. Indeed during the hearing Counsel for the Applicant acknowledged this in a number of respects.

It is to be noted that following his receipt of the letter of 11 June 1997 Dr Cheetham was not involved in the treatment of Miss A and that he did not communicate directly with the family or copy letters to them. Also in his reply to the letter of 11 June 1997, and consistently thereafter, Dr Cheetham made it clear that he would give his professional opinion about Miss A if he was asked about it.

A product of the view of, and stance taken by, the parents was that Dr Cheetham, Dr Maratos and others at the relevant NHS Trust were not provided with information as to Miss A's progress under the regime of treatment recommended by Dr Speight. As Professor Hall explains in his statement the parents seem to have maintained the view that this information should not be provided to Dr Cheetham and refused to give permission for the GP or Dr Speight to make statements for the purposes of the hearing before the GMC (see paragraph 53 hereof). Thus the PCC and this court were not given details of Miss A's progress even though the parents were asserting that what was being said by Dr Cheetham and Dr Maratos as to Miss A's progress and condition at the end of 1997 and in January 1999 was wrong albeit that in a number of respects these descriptions overlapped with that given of Miss A's position by her solicitor (quoted in paragraph 10 above).

I agree with Professor Hall when he said that nothing that Dr Cheetham heard about Miss A caused him to modify the level of his concern (see paragraph 12 above). In my view Dr Cheetham's actions and the matters listed in the Charge List need to be considered in this light. In my view the PCC were correct to take into account " all the circumstances relating to Miss A's condition and management as known to you [Dr Cheetham] at the material time and to your integrity, expertise and reputation as a senior paediatrician".

Turning to the Charge List I have already dealt with the letter to Dr Speight dated 13 August 1997. In my judgment the earlier complaints based on this letter are a reflection of the incorrect view of the family referred to in paragraph 115 hereof.

In my judgment given his concern and professional opinion it was a proportionate response in the overall public interest for Dr Cheetham to raise and seek to pursue the issue relating to the tests carried out by Dr Munro in the manner referred to in paragraph 3 (b) and (c) of the Charge List. The test results relate to matters concerning the cause and treatment of Miss A's illness which were important issues at the CPCs. It seems to me that Dr Cheetham had a legitimate interest and concern to try to check whether these test results raised anything new and whether he agreed with the interpretation of the tests results and the reliance (if any) being put on them to support a continuation of the treatment regime recommended by Dr Speight. Further it seems from the correspondence that Dr Cheetham's actions were prompted by a letter from Dr Munro that was shown to him by Dr Stillwell (and therefore sent to Dr Stillwell by someone other than Dr Cheetham) and perhaps the same letter sent to Dr Cheetham by the local authority. Also his response was to persons who were well aware of the need to preserve confidentiality and who had been involved (directly or indirectly) in the CPCs.

The next matters listed in paragraphs 3(d) and (e) of the Charge List follow firstly the correspondence referred to in paragraph 121 hereof and Dr Maratos' letter of 21 November 1997 asking the local authority to convene a further CPC which he copied to a number of people who had been involved in the earlier CPCs and then the father's letter of 12 March 1998 (see paragraph 93 (iii) and (iv)). As the correspondence shows the GP involved himself in, or was involved in, discussions with both Dr Maratos and Dr Cheetham and Dr Maratos had received a letter from Dr Munro dated 9 October 1997. Thus it appears as one would expect following the decision at the second CPC that there was some communication between the doctors who had been involved and, as appears from paragraph 121, between them and the local authority. Given the understanding of Dr Maratos (and Dr Cheetham) relating to (a) Miss A's condition and (b) the concerns of her GP, in my view the request that a further CPC be convened was a proportionate response or step that was justified in the overall public interest. In reaching this view I have not forgotten that the father asserted strongly in his letter of 12 March 1998 that what Dr Maratos said was grossly misleading and that Miss A's condition had improved ten fold since she had been seen by Dr Cheetham, but this was not the understanding of Dr Maratos and Dr Cheetham and their understanding founded continuing serious issues relating to the welfare of Miss A which in my view merited full and proper consideration by amongst others senior officers of the local authority.

I do not have the documents recording what was done as a result of the request by Dr Maratos. The underlying dispute which gave rise to, or continued the tension, was as to the treatment Miss A should receive. As I have said I find it surprising that as the father asserted Dr Speight was not consulted by the local authority in connection with this request. Further I am unclear what discussion took place between the local authority and (a) the GP and (b) the family in respect of it before the father spoke to the social worker shortly before he wrote his letter in March 1998. However the correspondence reveals that it was the view of Dr Maratos that the progress of Miss A that a Mrs Vale of the local authority told him about was way below what could be expected. It is thus unsurprising that he and Dr Cheetham were concerned.

As I have said it is understandable given his view at the time that Miss A's father wrote as he did in March 1998. That letter and Dr Cheetham's assertion in his letter of 15 May 1998 that he would tell a worried neighbour what he thought demonstrate the tension, upset and difficulties that then existed. It was not asserted that Dr Cheetham spoke to neighbours. In my view in the circumstances surrounding them there is no realistic possibility that the actions of Dr Cheetham listed in paragraphs 3(d) and (e) of the Charge List could found a charge of serious professional misconduct. Indeed on the information before me I am of the view that they are within the range of actions that were proportionate and justified in the overall public interest.

I accept that (a) hindsight is a marvellous thing, (b) at the time that there was considerable tension and upset, (c) I do not know the detail of the steps taken by the local authority, (d) the decision at the second CPC had been taken fairly recently and (e) on my assumptions if there had been a further CPC the decision that Miss A should have the treatment recommended by Dr Speight and supported by the family would have been confirmed. But it seems to me that considerable distress and difficulties for both the family and Dr Cheetham might well have been avoided if, at that stage, legal advice had been taken by those involved and there had either been a further CPC or a meeting attended by senior officers of the local authority, Dr Maratos and/or Dr Cheetham, the treating doctors and the parents (if they wished to attend) to consider the request made by Dr Maratos. On the assumption that the decision referred to above would have been made it seems to me that that meeting should have addressed amongst other things (a) what progress Dr Speight would expect and what if anything would cause him to consider that a change in the treatment regime would be appropriate or should be considered, (b) the monitoring, review and assessment of Miss A's progress and who was to be involved therein, and (c) the roles (if any) of the participants (and others) in such matters in the future, and thus who were to be the decision makers.

I appreciate that at the time (a) due to confidentiality issues and the stance of the parents the local authority were faced with difficulties as to what they should disclose to non treating doctors, and (b) the family would have been vehemently opposed to discussion of a change in treatment regime. But in my view the course of action referred to in paragraph 125 was warranted and could have had considerable benefits not least to the family.

The matters listed in paragraph 3(f) of the Charge List are in large measure a repeat of the matters discussed above save that the relevant communications are internal to the NHS Trust. Again in my view the understanding of Dr Cheetham and Dr Maratos of Miss A's condition and progress (which is disputed) warranted them taking steps with a view to the welfare issue that understanding raised being addressed. If I have a criticism at this stage it is that the issues they raised were not taken up with the local authority. It follows that in my judgment on the information before me the internal steps taken by Dr Cheetham were within the range of actions that constituted a proportionate response that was justified in the overall public interest.

If the meeting I refer to above had taken place this correspondence with Mr Griffiths may never have taken place and the underlying issues would either never have been raised because of, or would have been dealt with in accordance with the structure agreed at that time. For example that could have included a clear absolution of Dr Cheetham and Dr Maratos from any responsibility in respect of the welfare of Miss A on the basis of a system for monitoring and review of her progress that was satisfactory to them or which they were advised they had to accept absent an application to court.

Some general observations

The underlying problems in this case was that Miss A was seriously ill and there was disagreement as to what was the best form of treatment. However, as reflected in the decision at the second CPC there was clearly a need to monitor and consider Miss A's progress. This is inherent in the underlying problems and would be the case even if there had not been a dispute as to what was the best regime of treatment. The existence of that dispute heightened the need to consider at appropriate times whether there should be changes in, or a wholesale change of, the treatment regime both for purely medical reasons and for those and other welfare and developmental reasons.

The view of the family was that Dr Cheetham (and others) should defer to their decision and that of the second CPC as to the treatment regime that should be adopted and that therefore they should not take any steps to seek to influence Miss A's treatment or, as appears from the nature of the matters listed in the Charge List, to invite the GP, Dr Speight or the local authority to reconsider their positions notwithstanding (a) the view of Dr Cheetham (which was shared by many other doctors that the regime adopted was not the most appropriate one), (b) the lack of information to him or another doctor sympathetic to his view concerning Miss A's progress, and (c) the lack of a clear and defined system of review of Miss A's progress and treatment in which proper consideration was given to the competing views advocated on the one side by Dr Speight and on the other by Dr Cheetham.

I accept that in some cases once a choice of treatment has been made the doctors who were against it should leave everything to the treating doctors and not involve themselves again. Further I accept that generally it would not be proper to seek a change in the treatment of a child simply as the vehicle for the continuation of a professional disagreement. In my view it is clear that this is not what Dr Cheetham was doing, and that this is not such a case. My main reasons for those conclusions are:

In those circumstances it seems to me that in furtherance of the public interest in promoting the welfare of children it was a proportionate response that was justified in the overall public interest for Dr Cheetham to raise the issues, and to act as, he did. In my view points (v) and (vi) above are important in the circumstances of this case because of the diversity of the competing views on treatment and the strength with which they were held and advocated by the professionals involved. They also lie behind the point I have made earlier that with the benefit of hindsight it may well have been advantageous if issues relating to monitoring and review of Miss A's treatment had been addressed and defined in late 1997 or early 1998 (see paragraph 125 hereof).

It seems to me that the diversity of the competing views meant that to be properly informed the decision makers as to what should be done from time to time concerning Miss A's treatment (whether they were the parents, the local authority or the court or a combination of them) needed to have regard to the competing professional views. Thus it seems to me that in the absence of the introduction into the review process of a method to consider on a properly informed basis the view advocated by Dr Cheetham (amongst others) in the light of (a) the progress being made by Miss A, and (b) the progress expected by Dr Speight, Dr Cheetham was justified in the overall public interest in acting as he did.

As mentioned at the beginning of this judgment I was shown some coverage of this case in the press and in discussion on a BMJ webpage. The relevant extracts are set out in the second schedule hereto. In my view although they raise some general points they do not found the assertion that a declaration should be made. I add in respect of the last citation that it seems to me that there are number of distinctions between the position here and that which existed in respect of the Cleveland enquiry. Further in my view it is inappropriate to make a declaration for the following reasons:

I have set out earlier a number of general factors that are relevant to the judgmental or balancing exercise (see paragraphs 42, 43 and 44). I add that in my judgment in a number of cases doctors are likely to be assisted by, reminding themselves of those points (which should be read with what follows) and that:

Additionally I mention that although I agree that what the PCC describes as potentially the most comprehensive justification for Dr Cheetham's actions namely whether a doctor has " reasonable cause to suspect that the child concerned is suffering or is likely to suffer significant harm" was an appropriate approach in law in this case based in particular on s. 47 Children Act I do not consider that it should be adopted as the appropriate test in all cases even when disclosure to a local authority is in issue.

For example, as foreshadowed in paragraph 27 hereof, in my judgment it would not be the correct test when individuals dealing with children and families (e.g. doctors, health visitors, social workers and teachers) acquire information which taken alone may not, or arguably may not, satisfy that test but which might in combination with other information do so or demonstrate that steps should be taken to promote the welfare of a child. In those circumstances the test should reflect this and the point that to promote the welfare of children generally, and individual children, there is a need in the public interest for such persons to volunteer to each other and share information which might when combined with further information show that there is reasonable cause to believe that a child is suffering, or is likely to suffer, significant harm (the trigger for an interim care order under s. 38 Children Act), or that there is reasonable cause to suspect that this is the case (a trigger for a s. 47 investigation) or that it is appropriate to take steps to promote the welfare of a child which fall outside the ambit of specific statutory provisions.

Final comment

Some of my conclusions and comments will disappoint Miss A and her parents. I would like to repeat that I, like the PCC, am not criticising them (see paragraphs 17 to 19 hereof). I also record that I acknowledge the enormous emotional strain caused to them by Miss A's illness and that on the assumptions I have made I can understand much of the frustration and upset they have felt in connection with Miss A's treatment. But for the reasons I have given I consider that the actions of Dr Cheetham they have complained about were also understandable reactions from his perspective and in the circumstances they were on the information before me within the range of proportionate steps open to Dr Cheetham that were justified in the overall public interest.

The Committee will inquire into the following charge against Dr Christopher Henry Cheetham………….

"That being registered under the Medical Act,

At the relevant times you were a consultant paediatrician employed by the South Buckinghamshire NHS Trust

a) On 11 June 1997 Mr B wrote to you stating that he and his wife no longer wished your involvement in the treatment of their daughter, Miss A,

b) You replied to that letter on 12 June 1997;

a) You wrote a letter dated 13 August 1997 to Mr N. Speight, Consultant Paediatrician by then responsible for Miss A's clinical management, in which you expressed your views about Miss A's clinical management and Mr B's psychiatric state.

b) You wrote a letter dated 2 October 1997 to Dr Stillwell, Senior Clinical Medical Officer in which you

c) You wrote a letter dated 18 November and 2 December 1997 expressing disagreement with Dr Jean Munro's interpretation of Miss A's biochemical test results and seeking further information about other tests performed on Miss A, and

d) You wrote a letter dated 3 February 1998 to Mr D. Griffiths, Director of Corporate Business, Oaken Grove in which you indicated that you had discussed Miss A's care with her GP and in which you commented on her GP's proposals for her clinical management.

e) i) You received a letter dated 11 may 1998 from Mr R. Darby, Chief Executive, Oaken Grove, in which he indicated that it was approprate to disengage from Miss A's care and requested that you do not become directly involved in her care

f) You wrote to Mr D. Griffiths on:

a) You thereby sought to influence the course of Miss A's clinical management after 11 June 1997

b) In doing so you

"And that in relation to the facts alleged you have been guilty of serious professional misconduct."

Extract from an article by a legal correspondent to the BMJ

Extract from a letter from a freelance journalist

Extract from a letter from a person described as an expert defence witness