Badrul Huda v Minister for Health and Social Services
| Jurisdiction | Jersey |
| Court | Royal Court |
| Judge | Matthew John Thompson,Master Thompson |
| Judgment Date | 17 February 2020 |
| Neutral Citation | [2020] JRC 29 |
| Date | 17 February 2020 |
[2020] JRC 29
ROYAL COURT
(Samedi)
Advocate Matthew John Thompson, Master of the Royal Court
Advocate I. C. Jones for the Plaintiff.
Advocate B. H. Lacey for the Defendant.
Huda v Wells [2017] EWHC 2553.
D v East Berkshire Community Health NHS Trust and others [2005] 2 AC 373.
Three Rivers DC v Bank of England (No.3) [2003] 2 AC 1.
Syvret v Chief Minister, SEB, SOJ and AG [2011] JLR 343.
Trant v AG and Others [2007] JCA 073.
Home Farm Developments Limited v Le Sueur [2015] JCA 242
Brakspear & Ors v Nedgroup Trust (Jersey) Limited [2018] JRC 121.
JSC Bank of Moscow v Kekhman [2015] EWHC 3073 (Comm).
Poole Borough Council v GN [2019] UKSC 25.
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.
Striking out — applications to strike out claims of misfeasance in public office and negligence
| Paras | ||
| 1. | Introduction | 1–48 |
| 2. | Submissions | 49–70 |
| 3. | Decision | 71–111 |
This judgment contains my reasons for my decision in respect of an application by the defendant to strike out claims by the plaintiff alleging misfeasance in public office and alternatively seeking to strike out a claim in negligence.
The plaintiff is an osteopath and has worked in Jersey for a number of years. In addition to osteopathy he also performs colonic irrigation.
What led to the plaintiff's claim was a complaint made by one of his patients referred to in the order of justice as “Patient A” whom the plaintiff had treated on a number of occasions with colonic irrigation. The plaintiff's order of justice refers to the plaintiff taking a detailed record of Patient A's history including noting that Patient A was suffering from anorexia and depression and that she was seeking treatment due to bloating and severe constipation. The plaintiff also avers that at no stage during treatment did Patient A raise any complaint with the plaintiff about his approach.
In 2016, Patient A was admitted for psychiatric treatment. During that admission the fact that Patient A had received treatment from the plaintiff was disclosed leading to a safeguarding alert being raised as described later in this judgment.
The safeguarding investigation led to a report to the plaintiff's professional body, the General Osteopathic Council (“GOC”), as a result of which the plaintiff was suspended from practice.
The plaintiff in his skeleton argument summarised his claim at paragraphs 2.2 to 2.5 as follows:-
“2.2. The Plaintiff's case is that the Defendant had a duty to investigate the complaint properly, in particular pursuant to its own procedures, and as a matter of natural justice an obligation to inform him of the complaint. Most importantly the Defendant was required to allow the Plaintiff to respond to the same [Tab 1/Pages 3 to 8]; the Defendant, by its own admission, did not do this.
2.3. The Plaintiff's case is that the investigation was cursory at best and at no stage prior to the report to the GOC was he informed of the complaint and consequentially was denied his right to respond. When the matter was eventually heard by the GOC it was found that there was no case for the Plaintiff to answer, something the Plaintiff asserts would have been the position had the Defendant undertaken a proper investigation.
2.4. The Plaintiff claims that the Defendant owed him a duty of care, delineated by its own policies, to properly investigate the complaint and to inform him of the same and allow him to respond. That the failure to properly investigate, inter alia was a breach of that duty of care as was, in that context, the report to the GOC. Further, it is asserted by the Plaintiff that the deliberate or reckless failure of the Defendant to follow its own policies and the rules of natural justice amounted to a misfeasance.
2.5. The product of that failure was the Defendant's report to the GOC and the foreseeable loss that such a report caused. Although it is not necessary to establish misfeasance, the Plaintiff relies upon the partial and redacted disclosure provided by the Defendant of emails from a senior member of its staff which suggest that he was an unscrupulous practitioner exploiting members of the public.”
Ultimately the professional conduct committee of the GOC found the plaintiff had no case to answer.
Following the GOC hearing dismissing the complaints against the plaintiff, the plaintiff issued defamation proceedings in England against the defendant. In a decision of Nicklin J reported at Huda v Wells [2017] EWHC 2553, the defendant successfully challenged the permission granted to serve the defendant out of the jurisdiction. Later in this judgment I analyse the effect of what was decided by the English High Court's decision and the relevance of that decision to the claim the plaintiff now seeks to bring in Jersey.
I now set out the relevant events that occurred. This description, as is normal in a strike out application where no reasonable cause of action is alleged, is principally based on the factual allegations contained in the plaintiff's order of justice. However, in this case the defendant filed an answer on 30 th August, 2019 where many of the factual events that occurred are admitted albeit their legal effect is hotly contested. Also during the hearing Advocate Lacey helpfully provided a chronology which was in large measure agreed. The relevant events following Patient A disclosing receipt of treatment from the plaintiff are therefore as follows.
As a result of the disclosure by Patient A of the plaintiff's treatment, a safeguarding alert was raised by Lorraine Wells, Clinical Team Leader Jersey Adult Mental Health Service (Ms Wells). The alert form completed included the following statements:-
““Discussed with Dr Hendricks and team who believe this risk is further increased by putting the body into shock and could result in cardiac arrest'
Further, in a box entitled ‘Any other information’ the following is recorded:
“This is an unusual case that raises ethical and moral concerns. [Patient A] is deemed to have capacity but often makes the wrong choices. The wider implication is this practice being carried out in the face of such high risks as [Patient A] is conspicuously emaciated and underweight.”
On 7 th July, 2016 a meeting took place between the psychiatrist treating Patient A and Ms Wells as well as others.
On 8 th July, 2016 a safeguarding meeting was conducted; paragraph 16 of the order of justice sets out that two actions were to be taken as a result of the safeguarding meeting as follows:-
“a. Dr Hendricks or Dr Mair, (the latter was Patient A's GP) was to contact the Plaintiff and indicate the treatment be discontinued; and
b. Ms Campfield was to contact the Plaintiff to inform him of the safeguarding alert and ask if he had any other severely underweight patients; this was never done.”
It is common ground that the plaintiff was not in fact contacted by Ms Campfield pursuant to the above action.
It is also admitted by the defendant that at the meeting on 8 th July, 2016 it was decided that the plaintiff would be referred to the GOC.
In an email also dated 8 th July, 2016 from Miss Christine Blackwood, Head of Professional and Care Regulation in Jersey (“Miss Blackwood”), it is alleged that Miss Blackwood recommended steps to support a referral to GOC which included:-
“a. the medical doctor who was to contact the Plaintiff was instructed to discuss medical/clinical management, then should follow up with an email to the Plaintiff and then provide a statement/email to the Defendant setting out the Plaintiff's response/treatment rationale.
b. that Ms Campfield provide a written statement setting out any response the Plaintiff makes following contact between them with regard to safeguarding.”
On 12 th July, 2016 Ms Campfield emailed Patient A's General Practitioner asking whether the GP or Dr. Hendricks had spoken with the plaintiff and also indicating that Miss Campfield wished to alert the plaintiff to the safeguarding concern. This did not occur.
Patient A's GP replied on 13 th July, 2016 stating that the plaintiff had informed Patient A's GP that the plaintiff had not treated Patient A for four months and agreeing that he would not do so now. Patient A's GP indicated he had not told the plaintiff of the safeguarding concern.
On 13 th July, 2016 Miss Campfield and Ms Wells met Patient A to discuss safeguarding issues.
On 25 th August, 2016 Patient A, by an email, complained to Senator Green, Jersey's then Health Minister, complaining that her safeguarding concern had not been responded to.
This led Dr Susan Turnbull, the Medical Officer of Health (Dr Turnbull), to email Senator Green in response the same day stating as follows:-
“This seemingly very vulnerable [Patient A] appears to have been significantly let down, as [Patient A] spells out in a measured way in [Patient A's] email to you. As MOH I am very concerned that Huda, left unchecked, is quite likely to be risking the health of other vulnerable (gullible) islanders, possibly believing that he has medical credentials.”
The plaintiff strongly criticises the contents of this email. The defendant disputes the plaintiff's criticisms.
A referral to the GOC was completed. It is accepted that the plaintiff was not informed of the proposed referral at any time prior to the referral being made. It was common ground the referral was received by GOC on 6 th September, 2016. It is in issue when the referral was completed and in particular whether it was on 24 th August, 2016, being the date of the referral or whether the referral was completed after Patient A's email to Senator Green.
The referral contained the following...
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Badrul Huda v Minister for Health and Social Services
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