Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE BEAN
QUEEN ON APPLICATION OF AHMET
(CLAIMANT)
-v-
SECRETARY OF STATE FOR HEALTH
(DEFENDANT)
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MR MARTIN SPENCER QC (instructed by Royal College of Nursing) appeared on behalf of the CLAIMANT
MISS ELIZABETH LAING (instructed by Department of Health) appeared on behalf of the DEFENDANT
J U D G M E N T
MR JUSTICE BEAN: By permission granted by Mr Justice Moses on 4 February 2005, the claimant seeks judicial review of two decisions of the Secretary of State for Health, acting through Dr Gabriel Scally, the Regional Director of Public Health ("RDPH") for the South West. The first is a decision of 16 July 2004 refusing to cancel an alert letter issued in respect of the claimant. The second is a further decision of the RDPH on 20 December 2004, again refusing to cancel the alert letter.
By Health Service Circular 2002/O11, the Secretary of State, on 1 November 2002, issued a document called "The Issue of Alert Letters for Health Professionals in England". It consists of a main document and annex 1 described as the Supporting Document. The main document says in paragraph 1:
"1 An alert letter is the way in which all NHS bodies are made aware of a doctor or other registered health professional whose performance or conduct could place patients or staff at serious risk. They cover situations where doctors or any other health professionals who pose a hazard to patients or staff may move from their present NHS employer to work elsewhere in a health or social care setting in any capacity, whether or not requiring registration, before their regulatory body has had the chance to consider interim suspension or other measures. Even where such measures are in place, alert letters are intended to reduce the risk of inappropriate employment in any capacity.
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3 Alert letters are not intended to be issued in circumstances where an individual practitioner is being considered by their NHS employer."
Paragraph 3 has a footnote at the end in bold type:
"NOTE: Alert letters are solely for use in cases where an individual is considered to be a serious potential or actual risk to patients or staff. They should not be used for any other reason."
The document continues:
"4 When an employer considers that their employee or former employee who is a health professional could place patients or staff at serious risk, they should make a request to the Regional Director of Public Health (RDPH) for the issue of an alert letter. In the case of health professionals other than doctors, the RDPH will seek advice from senior professional colleagues with responsibility for that profession .....
5 However, it will be for the RDPH to decide whether the criteria for issuing an alert letter have been met.
6 In all cases where an alert letter is issued, referral should be made to the individual's regulatory body (e.g. the General Medical Council) as a matter of urgency, by the initiating organisation ..... Consideration should also be given to the power of some regulatory bodies to place interim suspension or conditions on an individual's registration in circumstances when urgent action is required .....
7 In summary, the alert letter is a measure to reduce the risk of an unsafe or poorly performing health professional practising whether in that or any other care capacity until the appropriate regulatory body has had the chance to consider what action is appropriate. In the case of doctors, an alert letter is intended to cover situations where the individual moves on before the NCAA assessment process is completed. It can also reduce the risk of individuals becoming inappropriately employed in posts not requiring registration, whether or not the regulatory body has taken action. There may be exceptional cases where the RDPH may decide that the individual remains a potential danger to patients and/or staff and therefore considers that the alert letter should remain in force. In this type of case, the RDPH may wish to consider consulting the Department's Solicitors branch.
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11 This HSC [Health Service Circular] directs NHS bodies to put systems in place to implement and manage the new system for alert letters from 1 January 2003. These requirements are mandatory for NHS organisations .....
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17 Of particular importance is the need to ensure that cases in which alert letters have been issue are monitored and that letters are rescinded as soon as appropriate ..... "
Some of the Supporting Document repeats what is set out in the main document, but I will refer to some paragraphs which are not merely repetitive:
"18 Only RDsPH may issue alert letters. This is to reduce the number of people who can issue alert letters in order to ensure consistency of approach throughout the country.
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26 The RDPH considers the representations from the organisation [the employer or former employer] and decides whether or not to issue an alert letter after consultation with senior professional colleagues with responsibility for that profession .....
27 The RDPH advises the requesting organisation whether or not the alert letter will be issued and the reasons for this. If an alert letter is issued the requesting organisation must also refer the case to the regulatory body as a matter of urgency .....
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29 Once an alert letter is issued the individual concerned should be notified by the initiating organisation within 7 days (in writing to their last known address and, where appropriate, their registered address) that the RDPH has issued an alert letter. They should be given a summary of the reasons for this action and given 21 days from the date of notification in which, if they wish to challenge the decision, to send representations in writing to the initiating organisation, who will then pass them unaltered to the RDPH for consideration.
30 Following receipt of any representations, if the RDPH decides that the individual does not in fact pose a serious potential or actual risk to patients or staff, then the alert letter must be formally cancelled. The RDPH's decision to cancel or not must be notified to the initiating organisation within 7 working days of receipt of the representations by the RDPH. The individual must be notified of the RDPH's decision by the initiating organisation."
There is a repeat of the footnote to paragraph 3 of the main document:
"NOTE: Alert letters are solely for use where an individual is considered to be a serious potential or actual risk to patients or staff. They should not be used for any other reason."
"Monitoring the situation and withdrawal of alert letters
31 So far as is reasonably practical the organisation that triggers the alert letter system must ensure that it monitors the progress of any proceedings by the police, regulatory body, NCAA or Occupational Health Service and of any disciplinary proceedings, so that should the individual be shown not to pose a risk to patients or staff, the RDPH can be notified and can consider if the alert letter should be withdrawn ..... While such a process is underway, the initiating organisation should keep the RDPH informed on a monthly basis. Once the process is completed and a decision reached, there should be no need to continue to monitor or review the existence of the alert letter. The RDPH will need to satisfy him/herself on an annual basis that existing alert letters are still relevant.
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37 If the regulatory body concludes its consideration of the case in terms that allow the individual to continue in practice, either with or without conditions, the RDPH and initiating organisation should review the need to continue the alert letter. It does not automatically follow that the alert letter should be withdrawn - there may be other reasons for continuing it. If it is decided to continue with the alert letter, both the RDPH and the initiating organisation must be prepared and able to defend this decision against legal challenge."
The claimant is now 36. He qualified as a registered general nurse in 2000, and began work for the Royal Devon and Exeter NHS Trust on 24 November 2002 as a Grade E staff nurse working on Torridge Ward at the Royal Devon and Exeter Hospital. After some nine months in post, on 23 August 2003, he was injured. He was unable to return to work until 11 December 2003.
On 21 December 2003 he was put on special leave by the lead nurse from the Medical Directorate who, on 29 December, wrote to him inviting him to a meeting to discuss issues about his capability which had arisen during the short period since his return to work. He was to remain on special paid leave until the meeting took place. He was also directed not to enter the hospital or to contact colleagues apart from his ward manager. He was seen by a member of the Occupational Health Department on 5 January who found no evidence of significant mental health problems though the claimant was found to be distressed and angry, and was taking a view that he had been subjected to a campaign of victimisation and discrimination.
The claimant was unable to attend a meeting arranged for 7 January. It was re-arranged. It was stated to be a formal process in line with the Trust's capability procedure. On 7 January the lead nurse, Miss George, wrote to the claimant to inform him of the concerns of the Trust. By letter dated 19 February 2004, the claimant gave notice of his resignation from his employment to take effect formally on 16 March 2004. However, he never returned to work with the Trust after December 2003. In February 2004 he had commenced work for the Reed Nursing Agency. Since then he has worked shifts in nursing homes and in the NHS.
On 17 March 2004 the Trust complained to the Nursing and Midwifery Council ("NMC") about the claimant. Supporting documents from the Trust were not sent to the NMC until 7 June. On 24 June a case officer of the NMC acknowledged receipt of the complaint and the supporting documents, and added:
"This matter has not been considered as an interim suspension matter although this may not be the position after the material has been assessed. I shall be analysing the documentation in due course."
On 13 May 2004 the Trust, through its Director of Nursing and Service Improvement, wrote to Dr Scally (the RDPH) seeking his advice regarding the complainant, making a number of allegations and enclosing a "summary of events" which was, in essence, a list of allegations. The result was that on 17 May Dr Scally issued an alert letter in respect of the claimant. It reads as follows, after a heading with the claimant's name and certain reference details:
"The above-named person was formerly employed by Royal Devon and Exeter NHS Foundation Trust as an E Grade Staff Nurse.
If the above named person makes an application for a permanent post or locum work with your Trust, you are advised to contact Marie-Noelle Orzel, [address and telephone number] before offering employment."
The alert letter - although headed Management in Strict Confidence - is directed to a large number of recipients. The list of recipients is: Strategic Health Authority Chief Executives - South West Region; NHS Trust Chief Executives - South West Region; Primary Care Trust Chief Executives - South West Region; Regional Directors of Public Health; Government Departments; Welsh Office; Scottish Office; Northern Ireland Office; NHS Professionals; Private/Independent Sector Employers; Medical Locum Agencies; Nursing, Midwifery and the Allied Health Professions.
It was issued, as I am told is standard practice, without prior notice to the claimant. That was originally the subject of complaint in the application for judicial review. However the application for judicial review was brought more than three months after the issue of the alert letter and was therefore in this respect out of time. Mr Spencer QC, who has appeared for the claimant at this hearing, accepts in any event that the issue of the alert letter must now be treated as water under the bridge. The question therefore of whether the issue of alert letters without notice is always lawful or only lawful in certain circumstances does not arise in the present case.
On 20 May 2004 the Trust, through Miss Orzel, wrote to the claimant informing him of the issue of the alert letter. They should, by the terms of paragraph 29 of annex 1 to circular 2002/O11, have given him a summary of the reasons for this action within 7 days. They did not do so, although I do not think anything now turns on that failure. On 1 June 2004 Mr Green, the solicitor for the claimant, wrote to the Trust pointing out the failure to provide a summary of reasons, seeking copies of the evidence sent by the Trust to the RDPH and seeking details of the referral to the NMC. He made the entirely reasonable point that the claimant could hardly respond to the alert letter until he had been given a summary of the reasons. Eventually on 23 June 2004 a summary was sent. On 28 June, with commendable speed, and after what must have been a good deal of work, Mr Green sent a dossier to the RDPH responding on the claimant's behalf to each of the allegations and requesting cancellation of the alert letter.
On 14 July a telephone conversation took place between Dr Scally and Mr Green. There is an element of factual dispute as to what was said. According to Mr Green, when he asserted that the Trust had failed to support its allegations with evidence, in contrast to the claimant sending in the response dossier evidence of satisfactory performance at work, Dr Scally replied that it was not his job to weigh up the evidence. Mr Green backs that up with a contemporaneous attendance note. Dr Scally (at paragraph 17 of his witness statement of 27 March 2005) says:
"This note does not, in my view, give a complete or fair interpretation. I said that some of the material he had sent me was not relevant and I used as an example his inclusion of seven pages of duty rotas when only one page related to the 19 August might possibly have been of significance. I explained that I did not have the powers to conduct the investigations required to reach a definitive and final judgment on each individual allegation, nor indeed was it my role to do so. I inquired as to how the case was proceeding with the NMC. I indicated that I had considered carefully all the material provided on Mr Ahmet's behalf but that there were still, in my view, serious clinical failings that remained unresolved and that I was unable to reach the conclusion that Mr Ahmet did not in fact pose a serious potential or actual risk to patients."
On 16 July Dr Scally wrote a letter confirming his refusal to withdraw the alert letter. That letter is the first of the two decisions under challenge. It includes these sentences:
"I have considered carefully the documentation sent to me on your behalf by Mr Green of the Royal College of Nursing. My major concern is of course public protection and it does not fall to me to reach a judgement on the detail of the complaints about your professional performance that had been raised by the Royal Devon and Exeter NHS Foundation Trust. I understand that these are currently being considered by the Nursing and Midwifery Council and they will in due course reach a decision [as] to whether these require further action."
This letter is broadly consistent with Mr Green's account of what Dr Scally said in the telephone conversation, which I accept. The statement in the letter as to the approach to be adopted is rather bald and not entirely accurate. It is true to say that the RDPH cannot conduct a trial and is not required to reach final conclusions on issues in dispute. However it does fall to him to reach his own judgment after considering all the material submitted by the complainant and the practitioner as to whether the practitioner poses a serious potential or actual risk to patients or staff.
The burden is on the complainant to establish the serious potential or actual risk to the safety of patients or staff. Particularly when, as was the position in this case in July 2004, the matter has not yet received even preliminary consideration by the appropriate committee of the regulatory body to whom it has been referred, it will generally be prudent to err on the side of caution. But, as Mr Spencer submitted, there is a balancing exercise to be carried out. Although the wording of an alert letter such as that sent by Dr Scally on 17 May 2004 is anodyne, those receiving it will be well aware that the fact of it being sent means - in the light of the terms of the circular - the RDPH considers that the named practitioner poses a serious, actual or potential risk to the safety of patients or staff.
I cannot therefore accept the submission of Miss Laing, for the defendants, that the alert letter merely involves "a very mild interference" with the claimant's rights. On the contrary, I respectfully agree with the observation of Mr Justice Moses in R v Regional Director of Public Director ex parte X (29 June 2000) CO/3584/199 (paragraph 43) that an alert letter may clearly be "gravely prejudicial to a practitioner seeking employment".
Although the terms of the letter of 16 July 2004 cause me to doubt whether Dr Scally was applying the right test, I do not consider that his decision refusing to withdraw the alert letter at that stage was even arguably wrong. The Trust had placed before him a dossier of complaints, at least some of which, if upheld, might jeopardise his continuing registration. The response documents submitted on his behalf indicate that while some of the allegations are denied, and at least one was apparently accepted by the employer to be ill founded, at least one relating to the administration of drugs is admitted. The Trust's dossier had been in the hands of the NMC for less than six weeks and, so far as one can tell from the evidence, was still awaiting analysis by the case officer. In those circumstances, and notwithstanding the references submitted on the claimant's behalf (including an admirably measured one from Dr Daly, a consultant at the Royal Devon and Exeter Hospital on behalf of a group of colleagues who had worked with the claimant), Dr Scally was, in my view, plainly entitled to refuse at that stage to rescind the alert letter.
I should mention one other topic which arose during a telephone conversation between Mr Green and Dr Scally. In paragraph 18 of his witness statement Dr Scally - in a passage the accuracy of which Mr Green accepts - said:
"In the course of the conversation I made clear to the claimant's solicitor that any comparison between the issuing of an alert letter and a decision of the NMC to consider interim suspension was completely erroneous. The effect of interim suspension would be to prevent Mr Ahmet from working at all as a nurse in the UK whereas the effect of an alert letter was merely to advise prospective employers to contact a previous employer. The claimant's solicitor insisted that because Mr Ahmet had not been suspended the alert letter should be withdrawn."
Dr Scally goes on to make it clear that he did not accept that argument. He was right, in my view, to reject the argument that because the claimant had not been suspended by the NMC immediately, or very shortly after the initial submission of the dossier supporting the complaint, the alert letter should be withdrawn. I shall return to the topic of the significance of the NMC's actions in relation to the second decision.
The second decision attacked is Dr Scally's refusal to withdraw the alert letter in December 2004. On 8 December an officer of the NMC wrote two letters, one to the claimant and one to his solicitor. The letter to the claimant informed him that the Preliminary Proceedings Committee (the PPC of the NMC) had decided that 11 allegations listed in a previous letter should be further investigated by their solicitors. The letter to Mr Green stated:
"There are no plans to schedule this matter for an interim suspension hearing at present and the PPC on 23 November 2004 did not direct that there should be an interim suspension hearing."
On 14 December 2004 Mr Green wrote to Dr Scally asking for the alert letter to be withdrawn in the light of that development. On 20 December Dr Scally replied in the letter which is the subject of the second part of the application as follows:
"I have considered your letter and the attachments, carefully. I note that the NMC Preliminary Proceedings Committee have ordered that the complaints against Mr Ahmet should be further investigated. I remain of the view that it is appropriate to maintain an alert letter in place with respect to Mr Ahmet and will not be withdrawing the alert letter."
In his witness statement (at paragraph 24) Dr Scally ssid:
"Decision not to cancel the alert letter December2004
24 I have kept the existence of an alert letter under review and in continuing its operation I have noted the decision of the Nursing and Midwifery Council Preliminary Proceedings Committee, as notified to Mr Ahmet on 8 December 2004, for solicitors acting on their behalf to investigate a total of eleven separate allegations against Mr Ahmet. I was notified of this decision by way of a letter dated 14 December 2004 from the claimant's solicitors with enclosures, in which he asked me to cancel the alert letter in view of the NMC's decision; apparently because the NMC had not then made a decision to start proceedings against Mr Ahmet, but had, instead, instructed solicitors to investigate 11 allegations against him. I am of the view that the decision of the NMC Committee to investigate the allegations confirms that these are serious matters with implications for patient care and safety and are worthy of further investigation by the NMC's solicitors. The fact that the NMC had not there and then decided to start proceedings against Mr Ahmet does not affect that conclusion. The case might have bypassed the investigation stage if there were already a proven case, such as a criminal conviction, but that is obviously not so in this situation. For this reason I decided not to cancel the alert letter, and I told Mr Ahmet's solicitor of this decision in a letter dated 20 December 2004."
The NMC's proceedings are governed by the Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1993 Approval Order 1993. It is not necessary to trace the rather complex history of the statutory instruments by which these rules still apply. These rules apply to the NMC notwithstanding that it did not exist in 1993. The parties happily agree that these are the relevant rules. Rule 3 (1) and (3) read as follows:
The circumstances in which a practitioner may be suspended are -
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that it appears necessary to do so as an interim measure -
for the protection of the public; or
in the practitioner's interests.
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The means by which a practitioner's registration may be suspended in the circumstances of paragraph (1) (b) are that, in accordance with Part IV of these rules, the Preliminary Proceedings Committee, Conduct Committee or Health Committee has determined and directed that interim suspension is necessary for the protection of the public or in the interests of the practitioner."
The wording of Rule 3 (1) (b) (i) is not identical to the test laid down in Circular 2002/011 for the issue and maintenance of an alert letter, but its effect is very similar. If a registered nurse against whom a complaint has been made to the NMC poses a serious actual or potential risk to the safety of patients, the PPC may be expected to take the view that it is necessary to suspend his registration as an interim measure for the protection of the public. Conversely if the PPC, having considered the material submitted to it, declines to direct the practitioner to show cause under Rule 58 of the rules why he should not be subject to interim suspension, that does suggest that in the view of the committee on the material then available to it the practitioner does not appear to pose a serious actual or potential risk to the safety of patients.
In the letter of 20 December 2004 and paragraph 24 of his witness statement, both of which I have recited in this judgment, Dr Scally places reliance on the committee's decision to order further investigation of the complaints. That decision is not irrelevant in the present context but it goes no further than it says, namely deciding that the allegations justify further investigation. By contrast, Dr Scally does not so much as mention the PPC's decision not to direct an interim suspension hearing. He clearly attached, in my judgment, no significance whatever to it.
I consider that this attitude is plainly wrong. The PPC have extensive experience of such cases and their decision under Rule 3, while of course not conclusive (the decision about an alert letter being the RDPH's and not theirs), is entitled to great respect, particularly so in the light of the requirement in the circular (paragraph 17) and the Supporting Document (paragraph 31) to monitor the progress of regulatory proceedings and keep the maintenance of an alert letter under review.
I therefore conclude that the decision in the letter of 20 December 2004 not to withdraw the alert letter should be quashed. I shall direct Dr Scally to reconsider it in the light of all available evidence, including the decision of the Preliminary Proceedings Committee of the NMC, to which I have referred. Since, under the circular, the duty to keep an alert letter under review is continuing, it would plainly be artificial and inappropriate to attempt to turn the clock back to December 2004. Dr Scally should review the alert letter in the light of the position as it is when he makes the decision, and should be supplied with any up-to-date information which either the Trust or the claimant and his solicitors wish to place before him. I will hear counsel on the time period which is appropriate for this process to take place and on any other consequential matters.
Finally I would add that I am very grateful to Mr Spencer QC and Miss Laing QC for the written and oral submissions they presented to me at the hearing which, in each case, were of the highest quality.
MISS LAING: I am in some difficulty in addressing your Lordship on the consequential matters for reasons that you see; Dr Scally is not sitting behind me today, nor is my instructing solicitor. Someone is sitting in for her. It is difficult for me to propose a time period that Dr Scally could deal with.
MR JUSTICE BEAN: How would you wish to proceed? One possibility is to fix a time such as 28 days.
MR SPENCER: It is appropriate, if my friend cannot get instructions, for your Lordship to impose a time. I would strongly urge you to set a shorter period than 28 days given the sort of time scale which is considered appropriate in the circular for the cancellation of the alert letter after representations have been received.
MR JUSTICE BEAN: I was not considering that Dr Scally should have 28 days from the time that the up-to-date material lands on his desk, but that there should be a brief opportunity for either side to place any up-to-date material before him and then an opportunity for him to reach a decision.
MR SPENCER: That must be right. I do not suppose there is going to be much more material from the NMC in view of what I was instructed on Wednesday because there have been no further developments since November. I suppose that Mr Green might want to obtain some further reference from the present employer in the hope that that will have some influence in the reconsidered decision. It may be that 21 days would be appropriate.
MR JUSTICE BEAN: Shall I say any further material which either the claimant's solicitors or the Trust wish to place before Dr Scally should reach him in the next 7 days and he should make a decision within 14 days after that?
MR SPENCER: Certainly.
MISS LAING: Can one add "with liberty to apply" in case there is something?
MR JUSTICE BEAN: Yes.
MR SPENCER: I need to address your Lordship on costs. I am aware that one part of the application has been successful and the other part has not. You will recall that when the original application for judicial review was made, at that time there had been no indication to the Royal College of Nursing that the decision had been limited to those matters which it is now clear from Dr Scally's witness statement he was limiting himself to considering. Part of the application was rightly, in my submission, that on the basis he had considered everything put before him, he had taken into account matters that were irrelevant or should not have been taken into account. Indeed the fact those matters were irrelevant has now been accepted. It may be that the application was justified at the time it was made. It then became more justified with the second decision to be refused. As the first one has fallen away, it obviously has been appropriate to continue the application because of the second decision. So in those circumstances I would apply for the costs.
MISS LAING: As far as costs are concerned, I would ask your Lordship to make an order which reflects the way in which you have decided the matter. There are two aspects I would ask you to take into account. The first is that raised by my friend, that the challenge to the first decision has been dismissed. I entirely accept that when the challenge was first made, my friend, or those instructing him, had not seen Dr Scally's witness statement, but they have been aware of that material since the service of the witness statement. There was an opportunity to consider their position after that when they became seised of that.
The second aspect is that very little time was taken as to submissions on the human rights aspect but a certain amount of time was taken as to detailed grounds in our skeleton argument. That is a matter that has not weighed with your Lordship.
For those two reasons I would ask you not to order that the defendant pay all the claimant's costs on this application.
MR JUSTICE BEAN: If I am with you on that, one way of doing it is to have a date, for example, the defendant to pay the court fee and other costs from 20 December; the other is to take an overall percentage.
MISS LAING: As I do not have enough knowledge of the stage at which various costs were incurred and how they break down, I would have difficulty in assisting you.
MR SPENCER: In relation to the question of human rights, although in the event your Lordship has decided, or indicated in the course of argument, that the domestic law and the human rights law were on all-fours really, that is not to say that the human rights challenge was necessarily misconceived. You have not seen it necessary in the circumstances to deal with that matter. In my submission it would not be right, unless you decided that that was misconceived and an inappropriate claim to be brought, for you to penalise the claimant in relation to costs on that.
The other matter I can rely on perhaps in relation to the first part of the challenge is that, as you have recognised, the communication of alert letters and refusals is a joint matter between the regional director and the Trust and the circular gives the Trust certain responsibilities. On any view, the Trust failed in those responsibilities. In so far as the Trust is also an organ of the National Health Service, as is the regional director, and they are branches of the same overall body, in my submission that is an aspect you can also reflect in the order for costs and should take into account. The claimant and his solicitors were not just not given permission but they were positively misled in some respects. I would ask you to take that into account.
MR JUSTICE BEAN: I think justice would be served if I ordered the defendant to pay 80 per cent of the claimant's costs of the judicial review.
MISS LAING: I address you on permission to appeal. I recognise that there is an argument for saying your decision is confined to facts of this case, and it turns very much on the terms of Dr Scally's decision in December not to rescind the letter in Dr Scally's witness statement. I would nevertheless admit that it does raise an important question as to the relationship between proceedings taken by a regulatory body and a decision by the RDPH in relation to the alert letter.
For those reasons - on which I do not see it necessary to elaborate, there were very full submissions to your Lordship and legal argument about that relationship - I would submit it is an appropriate matter for the Court of Appeal to consider.
MR JUSTICE BEAN: I think it must be for the Court of Appeal to decide if they want to hear the case. I make no pretensions to infallibility but the matter has to be looked at in the round. It is partly fact specific and partly a point of principle. I must leave it to them.