Ministry of Justice v Carter

This is an appeal from a judgment of Sir Christopher Holland (sitting as a Judge of the High Court), handed down on 12 February 2010, whereby he determined that the Ministry of Justice was in breach of its duty to Ms Cheryl Carter when, on 10^th May 2005, Dr V. Premaratne, a doctor engaged by the H.M. Prison Service, failed to refer her as a non-urgent case to a breast clinic following her complaint of a lump in her right breast. He reached this conclusion notwithstanding that he also found that the doctor had conducted a breast examination and axilla inspection, without detecting any abnormality, in a manner which could not significantly be faulted. A hearing to deal with causation and damages is fixed for 1 July 2010 and, in granting permission to appeal, Lady Justice Smith ordered expedition of this hearing.

During the course of serving a term of imprisonment at HMP Cookham Wood, Ms Carter (who was born on 25 July 1975) frequently attended the Healthcare Department for what Sir Christopher described as “all manner of complaints”, although he recorded that she was candid in her evidence that, while in prison, she consulted doctors “for every little thing”. He went on to observe that “wariness on the part of Medical Officers (all G.P.s engaged on a part time basis) to accept complaints at face value would not be surprising”.

Sir Christopher provided a chronology which I gratefully adopt:

Sir Christopher went on to note both the relative rarity of this cancer in women under the age of 30 and also the appropriate response of a G.P. if consulted with a complaint of a breast lump. This was to take a careful history, closely inspect and systematically palpate both breasts and carefully examine the armpits and lower neck for enlarged lymph nodes. It is also important, at this stage, to record the joint expert evidence of the oncologists that as Dr Nathaniel did not feel a discrete lump in November 2005 and given that neither mammography nor ultrasound showed a discrete lump at that time, on the balance of probability, the lump was not palpable in March to May 2005; there was an issue between the experts as to the probability of whether the lymph nodes would then have been palpable.

It is now sufficient to record the primary findings of fact that the judge made. He found that Ms Carter did complain of a lump in her right breast to each of the three doctors, Dr Munasinghe, Dr Jayasinge and Dr Premaratne. He rejected complaints of negligence against Dr Munasinghe and Dr Jayasinge in connection with the examinations which they conducted, notwithstanding the absence of clinical records, not least because Ms Carter had no contemporaneous knowledge of the potential significance of particular examination and because, in any event, there was no evidence that there were signs of the condition that such an examination would have revealed.

Although the learned judge accepted (contrary to the evidence of Dr Premaratne) that Ms Carter had complained of a breast lump to her, it was common ground that Dr Premaratne had conducted an examination of her breasts and he rejected the allegation that the doctor had negligently conducted the full examination that was required of her as a consequence of the complaint he found to have been made. He said:

Sir Christopher then went on:

The judge had heard evidence from two oncologists, two histopathologists and two general practitioners observing that he would not rehearse their opinions but that “my indebtedness will appear from my findings”. He did not explain how he had taken account of the views of the two experts in general practice namely Dr Ross, for Ms Carter, and Dr Cheng for the Ministry of Justice. Both agreed that if clinical examination confirmed a breast lump or the presence of palpable axillary lymph nodes, urgent referral to a breast clinic would have been required. On the basis that this was the third consultation for the same condition of a reported breast lump, Dr Ross considered that Ms Carter should have been made the subject of a routine referral; in fact, he was of the view that Ms Carter should have been referred after the second consultation. Dr Cheng, on the other hand, was of the view that there was no need to refer her if no lump was detected and there was nothing else to put the G.P. “on suspicion” that there was a real risk of breast cancer, given her age group although he recognised that some G.P.s would have referred her in order to reassure and avoid a complaint or litigation. Having clearly rejected the presence of palpable abnormality (which, by agreement, would have required urgent referral), Sir Christopher said:

Mr Vikram Sachdeva for the Ministry of Justice describes the context of his challenge on the basis that the learned judge rejected the three main bases on which Ms Carter sought to prove breach of duty, namely, the failure to detect the breast lump, the failure to detect an axillary lump and the failure to refer to a specialist on the second occasion on which Ms Carter reported a breast lump not borne out by examination. He found for her on a fourth ground, not specifically spelt out in the Particulars of Claim but comprised within the general allegations of negligence (“failed, when [Ms Carter] re-presented, to refer her to a breast clinic”). In that regard, it is appropriate to note that, when cross examining Dr Premaratne, Ms Sparks did not investigate her practice in taking a history (either generally or specifically in this case), or the circumstances in which, even without abnormal clinical findings, the doctor should have referred her for specialist consideration. That was because the focus on these issues really emerged during the expert evidence and submissions, emanating as having importance as a result of comments made by the judge himself.

Before analysing the main ground of appeal, it is appropriate to deal with a subsidiary submission made by Mr Sachdeva which is to the effect that Sir Christopher reached findings of fact to which he was not entitled and, in particular, having rejected Ms Carter’s evidence on critical issues as to whether there was a palpable lump and whether the axillae were examined, he should not have accepted her as credible in other areas. Equally, having accepted that Dr Premaratne’s general approach to breast examination and axilla inspection could not significantly be faulted, there being no good basis for finding that she did not follow it, he should not have rejected her interpretation of her own clinical note, still less found that she had failed to seek to obtain a full history (on which she was not challenged).

I must admit to having some difficulty about the basis upon which the judge reached these very different findings but I readily recognise that Sir Christopher was charged with the responsibility of assessing the credibility of the witnesses he saw and deciding what he accepted from each; he clearly approached the case with a deep understanding of the likely reaction of those actually involved in the unfolding events. In the circumstances, I have come to the conclusion that these findings of fact were open to him and that there is no basis upon which it would be appropriate to interfere. In that regard, I am very conscious of the observations of Lord Hoffmann in Biogen Inc. v. Medeva Ltd [1997] RPC 1 at 45 when he said:

Separate from the argument on the facts, the primary ground upon which Mr Sachdeva mounts this appeal is that, in deciding the case on the basis that he did, the learned judge failed to apply the correct test for breach of duty in clinical negligence cases. Far from relying upon the well known dictum of McNair J in Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582 at 586 (“the standard of the ordinary skilled man exercising and professing to have that special skill … acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art”), he reached a conclusion based upon the unresolved concern of the Claimant and the relative ease of referral for expert opinion. In that regard, he referred to Morris v West Hartlepool Steam Navigation (supra) which concerned the failure to fence an unprotected hold in accordance with a general practice in relation to grain ships in ballast while at sea. It was held that the risk to the deck hand who fell into the hold was obvious and easily avoided and that the consequences of falling into the hold was serious; negligence was thus established.

Rather than deal with the case in the way that he did, Mr Sachdeva submitted that he should have followed the approach referred to Bolitho v City and Hackney Health Authority [1988] AC 232 in which Lord Browne-Wilkinson observed (at page 243) that:

Thus, the judge should have identified the views of “distinguished experts in the field” and considered whether such views were capable of withstanding logical analysis. In the response to the joint meeting of G.P. experts dealing with the scenario (as the judge found to be the case) that the consultation of 10 May was the third presentation of a perceived breast lump although clinical examination did not identify a palpable breast lump or palpable axillary lymph nodes, the note records that the experts did not agree. Their views (effectively unchanged in evidence), were as follows:

As I have noted above, Dr Cheng later repeated that, although some GPs would have referred the Claimant in order to reassure her and to avoid any complaints or litigation, he was of the opinion that there was no need to refer “if no lump was detected and there was nothing else to put the GP on suspicion that there was a real risk of breast cancer, given the age group of the Claimant”. Stripping the triple negative from the last sentence of the quotation above, but retaining its sense, would suggest that the so-called ‘rule’ is not one which a reasonable body of general practitioners would be bound to follow.

Further, Dr Cheng pointed to Guidelines promulgated at the behest of the National Institute for Clinical Excellence in June 2005 following consultation with a very large body of interested professionals. These Guidelines included the advice:

In a preface to the Guidance by the Chairman of the Council of the Royal College of General Practitioners, it is suggested that whilst greater vigilance was needed, it was “important not to routinely over-investigate or make inappropriate referrals”. Equally, the Breast Clinic Referral Pro-forma issued by Kent and Medway Cancer Network (the relevant authority for Dr Premaratne) specifically includes within the group who can be managed ‘at least initially’ by their GP:

In this case, by the time of her visit to Dr Premaratne, Ms Carter was not complaining of pain (which she said had settled) and there was no palpable abnormality. Thus, on this basis, according to the Guidelines and the Referral Pro-forma, in addition to the professional view of Dr Cheng, whether or not to refer Ms Carter was discretionary such that it was not negligent to fail to do so. Dr Ross, on the other hand, maintained that if a patient complained of the presence of a lump, even if no lump was found on proper clinical examination, by the second such visit to the G.P., there was an unresolved diagnostic problem which had to be referred for further investigation.

Although the judge did not refer to the Guidance or Pro-forma and said no more than that he was “steering a course” between the experts, Ms Sparks submitted that this meant only that he had rejected Dr Ross’ opinion that the second visit required a referral; given that the judge found that failure to refer after the third visit was negligent, by implication he was rejecting the contrary view and his reference to his indebtedness to the experts appearing from his findings revealed that he had taken all these facts into account.

I do not agree that this is an appropriate reading of Sir Christopher’s conclusions. It is clear from the words that the judge used that he accepted the submission that nothing mandated (my emphasis) a referral and he specifically expressed himself as unimpressed by the Rule of 3. In other words, he did not consider that a doctor was bound to refer a patient in respect of whom proper (as he also found to be the case) clinical examination revealed no abnormality simply because it was her third presentation. Although foreshadowed by the judge, the situation obtaining in this case (namely that this was a young woman who, because of her circumstances, could attend a doctor without difficulty, as frequently as she wished, and did so “for every little thing”) was not mentioned but ought also to be brought into the picture.

For my part, I am also concerned that the learned judge brings into his reasoning the fact that the unresolved concern as to the state of Ms Carter’s breast was “as we now know” well founded. The judge accepted that Ms Carter had complained about her breast on each of the three occasions and proceeded on that premise. Neither she nor any of the doctors knew that the complaint was well founded: indeed, he specifically found that no abnormality was detected on examination. Although a terrible disaster for Ms Carter, the fact that there was a developing tumour (albeit undetectable on clinical examination) is irrelevant to the issue of referral.

Even if I am wrong about my interpretation of Sir Christopher’s judgment, the effect of his finding is that he comes nowhere close to concluding that the view expressed by Dr Cheng was not a view held by an expert in the field, still less that it was one that was not capable of withstanding logical analysis (as required by the test in Bolitho). To have reached that conclusion would have required explicit findings of fact and analysis of the reasons given by Dr Cheng in his reports and his evidence to demonstrate that they came within that group of cases exemplified by Hucks v Cole [1993] 4 Med LR 393 which concerned a failure to modify antibiotic treatment for a visible lesion, notwithstanding the ease with which that could be done. As Ms Sparks conceded, unless the judge concluded that Dr Cheng’s genuinely held view could not withstand logical analysis and was thus unreasonable, Ms Carter could not succeed. I do not accept that he reached that conclusion; neither do I consider that it was open to him, on the evidence, to do so.

I ought to deal with a further argument advanced by Ms Sparks concerning the assessment of the balance of the potential significance of a breast lump against the relative ease of a routine referral. She argued that the judge’s reference to Morris v. West Hartlepool Steam Navigation was only to underline the balancing exercise. There is, however, a very important difference. As Mr Sachdeva argued, in employment cases involving safety precautions such as the fencing around an open hatch, the judge is able to impose standards. A referral to a specialist in cases such as this has implications in relation to the pressure of work on this service and, as the judge found, a clinical judgment will always be required before such a step is taken. That clinical judgment takes the case back to an analysis as described in Bolam and Bolitho.

Thus, in the light of the judge’s findings of fact and, in particular, his acceptance both that Dr Premaratne conducted a clinical examination inspection with care, finding no abnormality in breast or axilla, and that referral for specialist opinion was not mandated by appropriate professional standards simply because this was a third presentation, I am afraid that I see no basis for his conclusion that breach of duty was established; neither do I consider that his reasoning provides such a basis. On the contrary, in the light of the authorities governing allegations of clinical negligence, his decision that referral was not mandated is fatal to the claim.

Based on English v Emery Reimbold & Strick [2002] 1 WLR 2409, Mr Sachdeva also criticised the adequacy of the learned judge’s reasoning. In the light of my conclusions on the primary ground of appeal, it is unnecessary to analyse this issue further.

In the circumstances, I would allow this appeal. I add only that I reach that conclusion with regret and very real sympathy for Ms Carter, recognising, of course, that this feeling will provide absolutely no comfort to her.

I agree with the judgment of Leveson LJ and in particular would like to associate myself with the remarks in his concluding paragraph. The judge’s natural sympathy for Ms Carter led him to a conclusion that is, in my judgment, unsustainable in law. He made a number of findings of fact that are somewhat surprising, but we are bound by them for the purposes of this appeal.

It seems to me that it was at paragraph 27 of his judgment that the judge fell into error. He said he was steering a course between the two experts, Dr Ross and Dr Cheng, adding that he was unimpressed with the notion of a 'mandated response' and a 'Rule of 3'. He did not, however, make clear what aspects of their evidence he accepted and what aspects he rejected. Instead he substituted his own view that he was “impressed by the overall situation as I find it to be, principally featuring a sustained, unresolved concern as to the state of the breast which concern was, as we now know, well founded”. There are two points to be made here. First, it is completely irrelevant to the issue whether Dr Premaratne was in breach of duty of care that any concern turned out to be well founded. Second, the unresolved concern can, on the evidence, only have been that of Ms Carter and not that of Dr Premaratne.

The judge then weighed that concern against the relative ease with which a routine referral could be arranged and, on the basis of the case of Morris decided a referral should have been made. In my judgment, Morris was nothing to the point. Here we are concerned with whether a general practitioner was negligent. In determining what should have been done by Dr Premaratne, the judge was not entitled to impose his own opinion regardless of the practice of the medical profession. The test he should have applied is that explained in the well known cases of Bolam and Bolitho.

Furthermore, the judge made no reference to either of the guidelines to which Leveson LJ has referred or, indeed, to the fact that there was, apparently, a responsible body of medical opinion that would not have referred Ms Carter on the facts he found in this case.

Sad though the outcome of this case is, I cannot find any breach of duty on the part of Dr Premaratne. In a case such as the present, where a general practitioner has found nothing potentially sinister, the law does not require routine referral for specialist investigation.

I agree with both judgments and, save to express my sympathy for the respondent, there is nothing that I can usefully add.