Siddiqui & Anor v James and Charles Dodd (A Firm)

The premises would now be subject to the Care Standards Act 2000 but at the time the relevant provisions were contained in The Registered Homes Act 1984 (“the Act”). Under the Act, premises used or intended to be used for the carrying out of surgical procedures under anaesthesia were nursing homes within Section 24(1)(c) of the Act and had to be licensed for use. The licensing provisions were contained in Sections 24-34 of the Act. Under Section 24 it was a criminal offence to carry on a nursing home without being registered. By Section 25 the Secretary of State might refuse to register an applicant where he was satisfied inter alia that the applicant or any person employed or proposed to be employed by him was not “a fit and proper person” to carry on or be employed in a nursing home, as the case may be, or for reasons connected with the “situation, construction, state of repair, accommodation, staffing or equipment”, the home was not fit to be used as such a home. Under Section 28 the Secretary of State could at any time cancel registration on any ground which would entitle him to refuse registration. Section 30 enabled such cancellation or variation of conditions attaching or the imposition of additional conditions to be done by application to a justice of the peace who had power to cancel, vary or add to the terms of the licence as appropriate if it appeared to him “that there will be a serious risk to life, health or well-being of the patients in the home unless the order is made”. Other than under Section 30 the Secretary of State had to give any person registered notice (I was told 14 days) of any proposal to cancel the registration or vary or add to the conditions attaching. Section 34 provided that appeals against Section 30 orders should be made to a Registered Homes Tribunal.

These provisions have largely been retained in the Act of 2000.

In 1985 the National Association of Health Authorities in England and Wales published a handbook for health authorities entitled “Registration and Inspection of Nursing Homes” (“NAHA”). This was followed in 1993 by a supplement published by the National Association of Health Authorities and Trusts and the Society of Family Practitioner Committees (“NAHAT”). They provide helpful commentaries on the requirements of the 1984 Act and Regulations. In addition GHA published its own extensive guidance.

Part III of the Act dealt with the constitution of the tribunal and establishing its procedures. In 1989 the Department of Health published a commentary on the statutory provisions entitled “Registered Homes Tribunals Procedure”. The tribunal comprised a legally qualified chairman appointed from a panel and 2 expert members also appointed from a panel and who had to have experience in social work, medicine, nursing or midwifery or other experience considered suitable. For nursing home appeals one of the experts had to be a doctor and the other a nurse. The Registered Homes Tribunals Rules 1984 made provision for the exchange of witness statements, representation, the calling of witnesses and like matters. Although the procedure during the hearing was for the tribunal to decide it is apparent that it would normally follow that in a civil court. Reasoned decisions would be provided following the hearing.

Mr and Mrs Siddiqui

Mr Siddiqui was born in India in 1938, came to the UK in 1961, pursued studies at or with Catford College of Commerce, Woolwich Polytechnic, the Institute of Management Accountants and the Institute of Chartered Secretaries and achieved a degree in economics. He trained as a costs account clerk and worked as an assistant accountant. In the 1970s he began developing properties, living in them whilst they were being refurbished. He is not medically qualified and, when he embarked on this venture had, I am satisfied, little understanding of what local health authorities would require by way of facilities and services available before they would grant registration for carrying out medical operations at the premises. It is his case that he had no detailed medical knowledge but relied on others, including GHA for advice. He complains that GHA failed to make their requirements clear to him and says that had they done so he would have met them.

In 1984 the Claimants acquired 156 Shooter’s Hill Rd, a typical 1920s/1930s semi detached suburban house, for £29,000. It was fire damaged and required substantial restoration, which they undertook. The premises are relatively small. Some idea of the size can be obtained from the photographs. It comprised a ground and first floors with a small area in the roof space and an extension at the back. The Claimants intended to use the premises as a private nursing home. To that end in 1985 Mr Siddiqui applied to the local health authority for the necessary approvals and sought planning permission. There was then a change of mind when it was realised that the premises would require the installation of a lift to have residents on the first floor : that would not have been easy to install.

In the early months of 1989 a Dr Ahmad, an associate of the Claimants, made enquiries of GHA about carrying out minor surgical operations at the premises. Both he and Mr Siddiqui were supplied with the GHA Guidelines. By this stage, or shortly after, the Claimants, or one or other of them, were in what was described as a partnership with a Dr and Mrs Hafiz with, according to Mr Lawler, the Claimants having a one third share. It appears that Dr and Mrs Hafiz were a source of funding for the Claimants and that at some stage ownership of the premises was transferred to Dr and Mrs Hafiz. According to Mr Kabraji, the premises were repurchased by the Claimants with a loan from the Albaraka Bank.

the operating “theatre” was suitable in size ;

He noted that the proprietor admitted being ignorant of the medical aspects of the project and was dependent on the medical advice he had received. Evidently he was referring to Mr Siddiqui.

With registration obtained Mr Siddiqui set about obtaining patients. Evidently he contacted or had earlier contacted a number of local GPs offering The Mini Hospital’s services. In February 1992 a Dr Saleem wrote to The Mini Hospital stating he was sending patients to them. On 26^th March 1992 Mr Siddiqui wrote to GHA stating they were ready to perform their first surgical operation in the next few days and it would be carried out after 5.30pm “as we have not got many patients at present”. On 7^th April GHA wrote stating an inspection would take place on 6^th May 1992. Mr Siddiqui replied asking for the inspection to take place in the last week of May stating “ At present we have no patient or Matron. Kindly advise of procedure if we wish to apply for the Licence of (sic) additional procedures”. Inspection by Mr Field took place on 6^th May and as a result he relaxed his view about child circumcision and wrote to Mr Nash, Administrative Services Manager for GHA, stating he felt a licence could be granted to Mr Siddiqui because he had met the surgeons who worked for him and was convinced of their abilities in that respect but would first want to ensure the child did not suffer. On 27^th July GHA wrote to Mr Siddiqui stating that at its last meeting the health authority had approved one trial operation for circumcision on a male child up to 6 months old in the presence of Mr Field. On 19^th August 1992 the operation was carried out by Mr Singh in the presence of Mr Field who was satisfied.

On 3^rd August 1992 Mrs Siddiqui had applied to GHA for “approval” for the carrying out of further minor operations, enclosing CVs of Mr Singh, who it was said would be doing minor surgical operations in addition to Messers Odedun, Parry and Pothalingam. She stated a Dr Chadia would share administrative responsibility for the day to day running of the hospital and that a Dr Noor would give advice on acupuncture. On 19th August 1992 when Mr Field had witnessed Mr Singh carrying out the trial circumcision he had indicated a willingness to approve some further procedures set out in a list. On the same day Mr Siddiqui wrote to GHA enclosing a list of minor operations including some identified as approved by Mr Field.

On 28^th September 1992 GHA wrote stating approval had been given to amend the approved list by adding “Circumcision (to males aged under 6 months and 18 years and over) and stating the further operations applied for would be considered at the October GHA meeting. Mr Nash’s witness statement says the October meeting increased the number of authorised LA operations to a total of 37.

Application for Registration for Treatment under General Anaesthetic (“GA”)

On 30^th December 1992 Mr Nash had written stating an inspection would take place on 25^th March and that the team would like to meet the person in charge or his deputy. The letter did not specify the purpose of the inspection. In evidence Mr Nash said it was a planned inspection of the premises under its current registration and not in relation to the application for GA. The inspection took place as planned. Normally, any matters of note would be aired at the inspection followed up by a written report soon after. On this occasion the report was not sent until 24^th November 1993. Mr Nash could not explain the delay. I have not seen any report relating to that inspection. According to the letter of 24^th November no operations were being carried out at the time of inspection and the team noted that only 16 operations had been carried out since registration.

On 29^th March 1993 Mr Siddiqui wrote to GHA complaining of delays which he alleged had caused huge losses and stating that unless they were granted further registration speedily “we will not be able to sustain these losses”. He accused GHA of being obstructive and threatened proceedings to recover “all the losses and loss of income during the last several years” unless granted registration to carry out operations such as circumcision of those over 6 months and under 18 years and another 220 operations under GA. On 31^st March he wrote to the present Defendants stating he wished to sue GHA observing “all our finances gone, Hospital property to be repossessed” and that “our financial position is precarious”. On 5^th April he wrote stating “I am under great financial pressure these days. General Anaesthetic Licence can go a long way in relieving this problem”.

GHA’s response on 5^th April rejected the allegations of delay and obstruction and pointed out that the recent proposal to provide GA facilities and increase the approved operations by a further 220 was in the team’s opinion a major change and that there were concerns that The Mini Hospital may be overreaching its capabilities. The present Defendants provided the Claimants with a draft of a conciliatory but positive letter the substance of which Mr Siddiqui sent to GHA on 22^nd April 1993.

On 15^th April Dr Akramulhaq wrote to GHA stating he had visited the premises and found them “eminently suitable” for GA services. On 17^th May GHA wrote stating they had been advised that an assurance from Dr Akramulhaq would not suffice for registration purposes. On 28^th May 1993 the premises were inspected by Mr Nash and Dr Baxter, a local consultant anaesthetist. On 21^st June Dr Baxter sent a report to Mr Nash. In it he made the following points :

On 17^th August 1993 Dr Baxter wrote to Mr Nash stating staffing requirements needed to include an identified senior nurse, an identified person responsible for anaesthetic equipment and theatre staffing comprising an experienced scrub nurse, anaesthetic assistant and runner for each case. He mentioned the need for a plan for possible overnight admission with suggested options. Significantly he observed :

“ I must express my serious reservations that it has been necessary for me to detail these needs in such a way. Mr Siddiqui’s protocols have been exhaustive, and have detailed job plans for staff, but have not spelt out the simple basics as outlined above. The fact that such simple priorities have not been summarised, and plans to meet them outlined at the start of the application, leads me to have reservations about the management expertise in healthcare matters especially in Hospital Management. I have yet to be convinced that the expertise to ensure that these exhaustive protocols are used correctly has been identified, or that the workload planned will attract such a person. However that is a commercial risk decision for Mr Siddiqui, although the authority needs to be assured of quality considerations.”

He attached to his report likely costings to achieve his requirements. He assessed equipment and staffing costs assuming a 5 day week at £310 - £350 per day. Evidently he queried the viability of the business.

On 26^th August Mr Nash wrote to Mr Siddiqui stating the registration team would make a recommendation to the health authority provided specified conditions in addition to those already sought were met. Those conditions were :

I have to say that I regard Mr Nash’s latter as unfortunately constructed : it starts with the news that the health authority would make a recommendation for GA. Understandably Mr Siddiqui took comfort from this letter. The letter, recording as it does Dr Baxter’s requirements, does not pass on Dr Baxter’s general concerns, which seem to me to be most relevant and which militated against GA registration.

On 18^th September Mr Odedun wrote to GHA asking them to reconsider the restriction to 9 operations and identifying 136 operations he stated were also appropriate out of the 220 originally submitted. GHA asked him the number of days per week he was able to work at the hospital and he replied stating he was available for telephone advice at all times but operated mostly at the weekend (The Mini Hospital patient register records Mr Odedun as operating on four occasions in the July–November 1992, three times on Fridays, once on Saturday). On 19^th October GHA wrote asking whether the terms of the 26^th August letter were accepted. On 17^th November GHA wrote stating the registration team would be able to support 80 of the first 104 operations proposed and an orthopaedic opinion was being sought for operations numbered 104 to 136 and again asking whether the terms of the 26^th August letter were accepted. Mr Siddiqui’s response was a letter dated 26^th November criticising GLA for delay and seeking compensation. On 8^th December GHA wrote giving reasons for not having approved some of the operations, a frequent reason being that they required an overnight stay, but also giving permission for 3 further operations. On 14^th December Mr Siddiqui wrote asking when approval for the 80 operations would be put before the health authority. On 15^th December he at last answered GHA’s letter of 26^th August agreeing to the conditions set out, but stating that the theatre staffing requirements were completely unreasonable, they did not foresee overnight stays and that subsequently application may be made to vary the conditions.

On 20^th February 1994 Dr Baxter wrote to GHA expressing serious concerns about statements made in Mr Siddiqui’s letter of 15^th December 1993. He pointed out that the theatre staffing levels were the minimum requirement for any theatre case whether in the NHS or the private sector and were based on national requirements. He said Mr Siddiqui’s observation that he did not foresee the need for overnight stays displayed “lamentable ignorance” of the facts of day surgery both on the part of Mr Siddiqui and of his advisers. He made further observations and reiterated his view that there were serious grounds to question the expertise and understanding being brought to the operation and stressed that his professional opinion was that the licence should not be granted. Anyone reading Dr Baxter’s reports must have had concern over the granting of a licence for GA, at least so far as anaesthetic provision was concerned.

But prior to receipt of this letter, on 11^th January 1994 GHA had written to the Claimants stating that following further advice, if GA were supported a further 25 operations would be permitted, stressing the need to meet stated requirements and stating the matter could be put before the health authority for consideration on 26^th January 1994. A briefing note was prepared for the health authority meeting in which note, given acceptance of the minimum conditions imposed, the authority was asked not to object to the use of GA for the operations specified. It was stated that the hospital’s adherence to the standards agreed would be monitored by inspection. But at the meeting held on 26^th Jan 1994 the decision was deferred pending review of the registration team’s advice.

I am surprised at the recommendation made in the light of Dr Baxter’s earlier observations. I am not surprised the recommendation was not accepted by the health authority.

The inspection on 23^rd February 1994

Mr Nash told me the aim was to have consistency in the inspection team’s membership but this was sometimes not achievable due to problems with availability of, in particular, the doctor members. This led to cancellation and delay in inspections and sometimes the need to draft in replacement inspectors.

He described this inspection as being slightly extraordinary in that it was conducted by members of the GHA and an independent expert, Miss Whitfield, in addition to Dr Baxter and himself. He said it was unique in his experience for members of GHA to conduct an inspection. Mrs Rodin said board members had asked for an inspection because they felt they did not have sufficient information to make a decision on the GA application, which she described as a significant step up from the LA registration. She said it was slightly unusual for her to attend an inspection but she had done so before. Mr Nash surmised the health authority had serious concern about The Mini Hospital despite the recommendation which had been made. A briefing note is normally prepared for such an inspection but none has been disclosed.

That there was general concern comes over from Miss Whitfield’s witness statement where she says Mr Nash told her that the inspection was of a small hospital that the health authority had some concerns about and that the impression she was left with was that the health authority had sufficient concerns that they were getting to the stage of considering whether the hospital’s registration should be withdrawn.

The inspection took place in the morning in the presence of the Claimants and Dr Akramulhaq but not Mr Odedun, although Mr Nash talked to him over the telephone. Mr Nash could not remember what was said. At this time the Mini Hospital had not treated patients for a considerable time, although Mrs Siddiqui was still registered to carry out the specified operations there : Mr Siddiqui said no operations were carried out between March 1993 and 11^th March 1994 because they did not want anything to go wrong nor jeopardise the application for a GA facility.

The inspecting team formed an unfavourable impression. Its members provided reports. Dr Akramulhaq remembered that Dr Baxter said at the time that the inspection had been disappointing. Mr Siddiqui has been highly critical of the inspection. He has also been highly critical of the fact that he was never shown the reports until they were disclosed in this litigation.

I heard oral evidence from Mr Siddiqui, Dr Akramulhaq, Dr Baxter, Ms Whitfield Mrs Rodin and Mr Nash about the inspection. Mr Siddiqui complained that he was asked medical questions which he was not qualified to answer and said that Dr Akramulhaq advised him not to answer such questions and that Mr Odedun should deal with them. Dr Akramulhaq said that Dr Baxter said he could answer for Mr Siddiqui but primarily questions were directed at Mr Siddiqui. He said he, Dr Akramulhaq, could only answer questions re anaesthesia, was not familiar with the surgery side and he took exception about being asked about matters such as the recovery room, and oxygen when they should have asked someone who had full knowledge. Mr Siddiqui also complains that the reports of Dr Baxter and Miss Whitfield were factually incorrect and that Dr Baxter suffered from a conflict of interest because he was associated with the Blackheath Hospital, a nearby private hospital.

I found Dr Baxter and Miss Whitfield to be impressive witnesses. Dr Baxter told me that in addition to his NHS consultancy he anaesthetised at the Blackheath Hospital but otherwise had no financial links with the hospital. He had advised them in their early days but was not paid for that advice and had turned down an invitation to invest in a scanning machine to be employed there.

From an early stage Mr Siddiqui has claimed that the Blackheath Hospital was one of his competitors and that it was wrong for Dr Baxter to have carried out any inspections because he had not been independent. He relied on Para 1.37 of the NAHAT report which states :

“It would be inappropriate for a registering authority to authorise an individual having service links with a hospital or service in the independent sector to carry out functions under the Registered Homes act on its behalf”

This if applied literally would prevent many anaesthetists being inspectors since I believe few anaesthetists have no such links. But the point is fairly made that someone associated with a local private hospital may be concerned to protect the interests of that hospital and thereby his own interests, subconsciously if not consciously. It would have been better if Dr Baxter had not been an inspector to avoid a perception that he may be or was biased. But having said that I am satisfied that Dr Baxter’s approach to The Mini Hospital was entirely professional and his concerns genuinely held. He has a wealth of experience as an anaesthetist, having obtained his Fellowship in 1975 and thereafter having had responsibilities for auditing anaesthetic equipment, commissioning anaesthetics in new hospitals, one of which was Blackheath, and from 1991 and at the time of his inspections being Director of Day Surgery at Greenwich Hospital. In my judgement his standards were high and he was not prepared to compromise on them. Dr Akramulhaq knew Dr Baxter well and said he had the highest regard for him.

Miss Whitfield also had an impressive pedigree. She had started as a registered general nurse but progressed to a master’s degree in nursing, prior to becoming a nursing officer and in due course the registration officer, first at Bloomsbury Health Authority and then the Bloomsbury and Islington Health Authority, one of the largest in London. I am entirely satisfied that she too was entirely professional and her views genuinely held.

Following the inspection Dr Baxter wrote immediately to GHA with the following criticisms/observations :

He followed this letter with a formal report in which he enlarged his criticisms as follows :

Miss Whitfield also wrote immediately to GHA. Her observations/criticisms were :

Mrs Rodin’s witness statement said her overriding view was that this was a very ill-advised venture. She described the premises as entirely unsuitable for day surgery procedures under GA. She said it was obvious to her that although brand new equipment had been obtained there was a lack of appreciation by the Claimants of what was actually involved in the clinical and safety aspects of owning and managing a day surgery unit. She asked Mr Siddiqui how the hospital could function safely without effective supervisory cover (Mr Odedun being in Ormskirk) and his response was that if there was an emergency they would send the patient to the nearby Brook Hospital. Following the inspection she advised the Health Authority Board that The Mini Hospital was not suitable for procedures under GA.

She stood by these opinions when giving evidence. She stated she felt that the Claimants had initiative but it had been misdirected. She said there were certain things they might have done for GHA – she instanced cataract operations – had they approached GHA first before embarking on their path. She could not see they had any chance at all of obtaining GA registration in view of the physical layout of the premises.

There is a surprising lack of GHA internal documentation dealing with what happened following receipt of these reports. That is not the fault of the parties who have to rely on GHA for disclosure of such documents. Following the inspection and receipt by GHA of these letters and reports, a draft report in Dr Evans’ name recommended cancellation of the existing registration ie for LA on the grounds that :

No immediate step was taken by GHA to notify the Claimants of Dr Baxter’s and Miss Whitfield’s criticisms and recommendations, nor to withdraw the LA registration. I accept that the Claimants did not know of the detail of Dr Baxter’s and Miss Whitfield’s criticisms nor see their reports until this litigation was underway. No reasons were given for GHA’s failure to follow up immediately the recommendations made by Dr Baxter and Miss Whitfield. But on 7^th March 1994 Mr Nash wrote to the Claimants asking them to ensure that he was informed whenever The Mini Hospital intended to carry out an operation. Mr Siddiqui obliged the following day stating Mr Odedun would be performing an operation at 5pm on 11^th March. He (it is not clear whether Mr Siddiqui was referring to himself or Mr Odedun) could see representatives of GHA at about the same time if they wished. In the morning of 11^th March arrangements were made with Mr Siddiqui over the telephone for GHA representatives to attend the premises at 3pm that day.

Dr Baxter and Dr Evans attended. Dr Baxter stated he arrived at about 3.15pm. They could get no response and could not enter the premises. They waited a short time and left at about 3.45pm. They had not been able to confirm arrangements for the proposed operation : Dr Baxter was especially concerned about whether or not emergency drugs would be available. They returned to GHA premises and a decision was made to apply to cancel the registration. Application was made that afternoon to a justice of the peace and granted. The reasons were stated to be :

“that there will be a serious risk to the life, health or well being of a patient undergoing vasectomy operation in the home unless the order is made because:

the Hospital on inspection did not have the range of emergency drugs listed in its own safety protocols to be available at all times, which would be urgently required in the event of the patient requiring emergency resuscitation.”

Mr Siddiqui, when giving oral evidence, accepted he had made an arrangement to meet them at 3pm but said he had been delayed. He and Mr Odedun were at the premises when the order was served. Dr Baxter attended when the order was served. Mr Siddiqui said he offered at that time to show Dr Baxter what drugs were there but Dr Baxter said they were there to serve not inspect.

The Claimants, acting through Mr Siddiqui, consulted the present Defendants for advice and were advised by Mr Charles Dodd, who had advised Mr Siddiqui in 1991 and 1993. Mr Dodd arranged a meeting with GHA which took place on 29^th March and was attended by Dr Evans, Mr Paterson (a GHA legal adviser) and Mr Nash. Mr Dodd and his assistant kept notes of the meeting. The notes record that he and Mr Siddiqui were told that GHA had decided to close down the Mini Hospital following the inspection of 23^rd February.

Mr Dodd told me he went to the meeting feeling that Mr Siddiqui had been badly treated, misled, messed around and that the GHA had sneakily used a very draconian section to close the business down. He went into the meeting, he said, in quite a ferocious manner, adopting the approach that what GHA had done was an utter disgrace. These are the words he used. He said he came out of the meeting feeling thoroughly embarrassed at the line he had taken, that he had been completely mistaken and it was quite clear he had not been given sufficient information by Mr Siddiqui, although to be fair to Mr Siddiqui he had not been told what a bad situation he was in. He said there was no chance of the health authority agreeing anything, they adopted an extremely harsh stance and it was quite clear they had already decided to close the hospital down. Following the meeting he advised Mr Siddiqui that he did not believe an appeal would succeed, although GLA might take him a little more seriously in the future and it might be possible to overcome the problems eventually. I regard Mr Dodd as a reliable witness. He was not challenged on this evidence.

Mr Siddiqui decided to appeal and in due course the appeal was dismissed on 6^th December 1994. Had the notice been properly served I am satisfied the appeal would likely have come on earlier but I have no reliable evidence of how long it takes for such appeals to be heard. In Lyons v East Sussex County Council (supra), in 1987 Glidewell LJ said it was obviously important that such an appeal was heard as expeditiously as possible. The booklet “Registered Homes Tribunals Procedure published in 1989 suggests an appeal would usually be heard about 7 weeks after the Secretariat receive the appeal but I note the Amendment replaces 7 weeks with “as soon as possible”, not any period shorter than 7 weeks. A Defendants’ file note dated 29^th July 1994 records a Mrs Masters of The Registered Homes Tribunal stating a hearing would be at least 2 months ahead, which I assume would apply to most cases. Given summer holiday arrangements it may well be that the appeal would not have been heard or the decision notified to the Claimants until say September 1994.

Mr Siddiqui has been highly critical of GHA. It may be that he has reason to feel aggrieved at the time it took to obtain registration for LA and then to enlarge the list of procedures, but that is largely history so far as the present action is concerned. He has not sued GHA. Indeed, he was advised by Mr Dodds, as I find, that he probably did not have grounds for suing them. My concerns are with what has resulted from the Defendants’ admitted negligence in failing to send the notice of appeal to the correct address.

I now turn to the issues raised by this action, which have been agreed by the parties in the form of the following questions.

Was there a real as opposed to a fanciful chance of the Claimants successfully appealing the Closure Order dated 11^th March 1994 ?

Was emergency closure justified ?

According to Mr Siddiqui the arrangements for the appropriate drugs to be present were twofold. He used to order the drugs the day before from the local pharmacy and collect them on the day. If one assumes these drugs included basic resuscitation drugs, such drugs should have been listed : Miss Whitfield saw no such list, although they were listed in the Protocol. At the same time Mr Odedun, when he operated, would bring his own drugs : neither Mr Lavelle nor Miss Whitfield had any experience of such a procedure.

Mr Odedun in his statement lists the drugs contained in his emergency bag but states these drugs were also available at the hospital when he carried out an operation there and were available there on 11^th March. In his second witness statement Mr Siddiqui says that lignocaine was kept in the fridge but adrenalin was brought by Mr Odedun. In the same statement Mr Siddiqui says (Para 138) that he was very busy that morning as he had to collect the drugs Mr Odedun had asked for from the local pharmacy but also says (Para 161) that when the vasectomy was arranged they did not arrange to get the drugs from the local pharmacy because Mr Odedun was arranging to bring the drugs himself. Neither Mr Siddiqui nor Mr Odedudin specifically mentions Dantrolene (which I understand is a muscle relaxant) as being present although its need had earlier been emphasised by Dr Baxter and it was listed in the Protocol.

When Dr Baxter gave evidence he stressed that he was not satisfied, based on what Dr Siddiqui had earlier told him, that the necessary drugs, including Dantrolene, were going to be there and he was not impressed with the quality of the cooperation received.

Mr Siddiqui accepts he was due to meet Dr Evans at 3pm. In fact he had suggested the time. He does not suggest he made any attempt to contact Dr Evans when he was delayed.

I am satisfied that Dr Baxter and Miss Whitfield had genuinely formed the view that standards at The Mini Hospital fell below what was required. Each had come to the inspection on 23^rd February with his/her own experiences and interests in standards of care in day hospitals. There was nothing to suggest to Dr Baxter and Dr Evans when they attended on 11^th March that earlier concerns had been attended to, since there was no-one to greet them, admit them to the premises and show what was available. The presence of appropriate drugs was one of those concerns and one of Dr Baxter’s specific interests, he being the best qualified of the inspectors in that field. Without appropriate drugs there would be a serious risk to life, health and well being of a patient undergoing vasectomy should an emergency arise.

I am entirely satisfied that the decision to seek a closure order was justified in the circumstances as they appeared to GHA at the time. I differ from Mr Lavelle who thought emergency closure unnecessary but owned he had no experience of these matters. If the tribunal’s functions were limited to a review of the making of the order I am satisfied the appeal would have failed. But I consider the appeal would be by way of rehearing. Would this have affected the outcome ?

Was there a realistic chance that the tribunal would have allowed the appeal even if closure were justified at the time ?

To uphold the order the tribunal would have to have been satisfied that the reasons justifying the order were sound. They are limited in scope. For convenience I repeat them :

“that there will be a serious risk to the life, health or well being of a patient undergoing vasectomy operation in the home unless the order is made because:

the Hospital on inspection did not have the range of emergency drugs listed in its own safety protocols to be available at all times, which would be urgently required in the event of the patient requiring emergency resuscitation.”

The evidence of the arrangements for the provision of drugs and the drugs provided is not consistent and is highly unsatisfactory. On this aspect I did not find Mr Siddiqui convincing. I had no opportunity to assess Mr Odedun and in neither of his signed statements does he swear to the truth of their contents. Nevertheless, I shall assume his evidence contained in his second statement in which he lists the drugs he would have had present in his emergency bag, would have been before the tribunal. These drugs are not entirely the same as those listed in the Protocol. The listed drugs include Dantrolene : his statement does not. But Dantrolene, as I understand it, is not a drug for emergency resuscitation. No evidence has been put before me that the drugs referred to in the statement were not sufficient for emergency resuscitation if required during the vasectomy operation, even if they did not match the Protocol.

Making this assumption, I conclude there is a reasonable prospect that the tribunal would have given Mr Siddiqui and Mr Odedun the benefit of the doubt on this aspect and would have concluded that the necessary drugs were available and therefore would have allowed the appeal. At the same time I would expect the tribunal to have insisted on strict provisions attending the provision of drugs for future operations. I am in no position to decide what those conditions would be but I would expect the primary obligation for the supply of drugs to have been placed firmly on The Mini Hospital not any visiting surgeon.

Given a successful appeal was there a real (as opposed to fanciful) chance that GHA or any successor would have permitted the Mini Hospital to continue to carry out operations under LA ?

I am satisfied that GHA, prior to the inspection of 23^rd February, had serious concerns over The Mini Hospital. What else could explain the size and composition of the inspection team ? Following that inspection a number of failures were identified some of which were deep rooted. Mr Siddiqui was not allowed to carry on regardless. GHA wanted to know when the next operation was to be carried out.

It is also clear to me is that following the inspection of 23^rd February, and putting aside the application for a GA licence, further requirements were going to be imposed on The Mini Hospital before GHA would allow LA procedures to continue. Mr Siddiqui had a way to go if the requirements pertinent to LA were to be met. It is also clear to me, although raising separate considerations, that The Mini Hospital could not afford to meet what would have been GHA’s requirements had they got to the stage of notifying him of the findings on inspection. I deal with finance below. Thus there would have been little to stand in the way of any determination by GHA to close The Mini Hospital. Following the inspection of 23^rd February, I consider the future of the Mini Hospital was doomed.

Following the meeting of 29^th March Mr Siddiqui wrote to GHA asking them to reconsider the matter, asserting that drugs had been available at The Mini Hospital on 11^th March and that there had been no risk to the patient. On 14^th June 1994 Mrs Rodin replied stating that GHA had given careful consideration to the issues before taking the action and she saw no reason why the matter should be reconsidered. At the same time GHA’s legal department was taking the point that the tribunal had no jurisdiction to hear the appeal in the teeth of indications from the tribunal encouraging a more conciliatory line. GHA’s attitude was one of firm resistance without readiness to reconsider.

Was the Mini Hospital viable with its existing licence to carry out LA operations and without a licence to carry out operations under GA. ?

Between December 1991 and March 1993 very few operations took place. The Defendants say the records support 12. Mr Siddiqui says 20. Whichever it be the number is very small. Mr Siddiqui says no LA operations were done after March 1993 because of the works necessary for the GA licence and because they did not want to prejudice the application for the GA licence. I do not accept this as the whole explanation. Mr Lawler recorded that the Claimants put down the fact that it had taken time to achieve registration to the fact that they did not want to jeopardise this by doing too many operations too quickly and risking their reputation : in fact, the correspondence shows Mr Siddiqui not merely understandably attempting to obtain registration as soon as possible but seeking approval for many more operations than GHA considered appropriate. Mr Siddiqui’s subsequent explanations sometimes do not match his more contemporaneous actions. The first LA operation did not take place until late March 1992 and in notifying GHA Mr Siddiqui said “we have not got many patients at present”. On 2^nd December 1992 when applying for GA registration he said that with a limited number of procedures “we have not been able to attract much business”. In my judgement sufficient profitable LA work was not available or likely to become available. If it had been available it would hardly have made business sense to abandon it.

The reason for the failure to attract LA business is not too difficult to see. Whilst it is true that in the early 1990s NHS policy was encouraging treatment for minor operations and procedures in mini centres, those mini centres tended to be located within GP surgeries and in special units within NHS hospitals, not small private day centres. Mr Kabraji noted that Laing’s Review of Private Healthcare (1996) states that in 1996 there were only two private dedicated day surgery units in the UK, that the level of business achieved by each was disappointing and attributed this, in particular, to failure to attract NHS contracts, the capacity of existing private hospitals to undertake day surgery, real or perceived patient resistance and the demands day surgery made on the limited number of hours most consultants could devote to private practice.

The funding of small operations in private hospitals had three possible sources:

Mr Siddiqui marketed the services of The Mini Hospital to local GPs and many wrote or signed letters written by Mr Siddiqui stating they would patronise The Mini Hospital. But in fact few did so. One can only assume they had little call for the operations permitted and/or their patients were NHS funded and/or they preferred to refer in practice to local NHS hospitals. Laing states that GP fundholders appeared to be showing a high degree of loyalty to existing NHS providers.

He offered the services of the Mini Hospital to GHA but the furthest he got was that his proposal was to be considered for 1994/1995. With limited LA registration I consider there was little chance of obtaining approval and if The Mini Hospital had been put on the GHA list I doubt whether there would have been a significant call for such operations. In a letter dated 16^th March 1993 GHA stated that in 1992/1993 they commissioned a total of only 1784 episodes of day surgery from all providers.

Mr Siddiqui sought to persuade me that his charges were low and that he would have been left a healthy profit after meeting expenses. This may be, although I suspect he underestimated his expenses, not least the cost of running the premises and staff. Business opportunities in theory, summarised by Mr Kabralji at Para 2.6.1 of his report did not manifest themselves in practice. The business never got off the ground as a business. It had not proved to be viable by March 1994 and in my judgement with its limited existing registration had no realistic prospect of doing so.

Given that in my judgement the business was inherently weak in its existing form it is not necessary to consider in detail the Claimants’ indebtedness to the Albaraka Bank and the impact of that indebtedness on the business. In August 1991 the Claimants had mortgaged the premises to the Albaraka Bank for £275,000. Interest as such was not payable but in the first year the Bank was to obtain a return of 13% on its outlay, in the second year it was 12%. In the first year repayments were £6,369.09 pcm (£76,429.08pa), in the second year £6,216.54pcm (£74,598pa). The Claimants soon fell behind with repayments. First the Bank appropriated their deposit of £25,000 to meet arrears and monies due. In September 1992 the Bank issued proceedings for possession of the premises. Shortly afterwards the Claimants instructed Christie and Company to value the business with a view to sale. It is clear that by the end of March 1993 Mr Siddiqui regarded their position as precarious (see letter of 31^st March 1993 to the present Defendants). Although the Bank obtained judgement for possession on 9^th December 1993 they did not enforce the order until December 1995 and did not sell the property until December 1996. Such indebtedness made the business even less viable.

Mr Kabraji has concluded that because the Albaraka Bank had been tolerant, and because the immediate overheads were small as instanced by the small number of operations which had taken place, trading could have continued backed by sufficient financial resources such as family funding from Mrs Siddiqui who was working as a teacher, their daughter who was a trainee doctor and their son who was an engineer (Mr Lawler says he was a doctor), had the existing registration been restored in June 1994. He reached this view without any information on any business creditors, ongoing expenses such as business rates and the family’s financial state, their income, living expenses and commitments. In the absence of reliable financial information showing such a view is sound I am afraid I am not prepared to accept it.

I conclude therefore that The Mini Hospital was not viable with its existing licence to carry out LA operations. I reach this view for reasons similar but not identical to those advanced by Mr Hobbs, the accountant instructed by the Defendants. I deal below with the prospects of obtaining GA registration.

Was there a real as opposed to fanciful chance that GHA or any successor would grant the Claimants a licence to carry out operations under GA and if not was there a real as opposed to fanciful chance that any such refusal could be successfully challenged ?

I have easily been persuaded that the premises, although adapted by the Claimants for GA operations were nevertheless inadequate for that purpose. A few examples will suffice.

I have also been persuaded that The Mini Hospital’s overall service fell short of what was required for GA operations. In particular, the initially proposed staffing arrangements, which included temporary employees, were inadequate. Although Mr Siddiqui in his letter of 15^th December 1993 wrote accepting the staffing conditions required by Dr Baxter and GHA, he expressed the view that these requirements were “completely unreasonable”, that he did not foresee overnight stays and that subsequent application might be made to vary the conditions. It was these observations that produced Dr Baxter’s comment of “lamentable ignorance”. I consider Dr Baxter was right to question the expertise and understanding being brought to the operation. Mr Lavelle considered the eventual employment of permanent theatre trained staff to be a reasonable condition on which the health authority should insist and thought it nonsense that day to day clinical responsibility should be exercised by someone in Mr Odedun’s position ie spending the majority of his working time 200 miles away.

GHA had earlier expressed concern to Mr Siddiqui that The Mini Hospital in applying for GA and seeking a further 220 approved operations was overreaching its capabilities. I consider that view was likely to have been maintained. It was reinforced by the views of Dr Baxter and Miss Whitfield. Mr Lavelle considered that when a health authority acts it is obliged to follow specialist advice unless it was blatantly wrong. Mrs Rodin said the same with regard to the advice of their Director of Public Health, Dr Evans. The chances of Dr Baxter and Miss Whitfield changing their minds was, I consider, so small as to be negligible.

Nor did the Claimants on their own evidence get close to demonstrating that it was appropriate that they should have been granted GA registration. Dr Akramulhaq, whose general support for GA operations at the premises had initially been relied on by Mr Siddiqui, accepted in evidence that different doctors could have different views on this. He never went so far as to say that Dr Baxter’s opinions were unreasonable or wrong. Mr Lavelle, agreed with Dr Baxter’s opinion that registration for GA was not appropriate.

Mr Siddiqui, as was his wont when confronted with difficult points, sought to argue that the difficulties could be accommodated. For example, the theatre on the first floor could be enlarged by moving a wall, or if necessary the theatre could be relocated on the ground floor. These changes in turn raised other problems. He never suggested a lift could be installed. I consider the building was and was likely always to remain unsuitable for GA operations.

I consider it wholly unlikely that a decision to refuse registration for GA at the premises could have been challenged successfully.

Was there a real as opposed to fanciful risk that the Claimants could have continued with their business in the Autumn of 1994 on the assumption that :

The Claimants’ licence to carry out LA operations was restored; or

Given my findings that there was no realistic prospect of the Claimants’ being awarded GA registration, whether the granting of a GA registration in addition to restoration of the LA licence would have enabled the Claimants to continue in business is hypothetical. In my judgement the premises were unsuitable for GA operations and only substantial reconstruction at considerable cost could have made them suitable. Further, the establishment of a permanent staffing structure, which Mr Lavelle accepted was necessary, would have necessitated considerable financial outlay. The Claimants could afford neither. Mr Siddiqui sought refuge in the fact that he could have borrowed more from Albaraka Bank. But Mr Kabraji in his report (at Para 4.3.25) said “…one should certainly draw the conclusion that the Albaraka Bank would not have provided any additional finances to Mr and Mrs Siddiqui…”. And why should friends have lent more money ? And for GA as for LA operations, they still needed NHS, private insurance or self-funded patients. Where were they to come from ?

Did the existence of (a) a licence to carry out operations under LA; or (b) a licence to carry out operations under GA increase the value of the either the Claimants’ business or their property at 156 Shooters Hill Road, London SE3?

The Defendants urge me to find that no extra value attached to either the business or the premises because in each case the registration would have attached to a person not premises or an identifiable business. That is too simplistic a view. Section 23(4) of the Act states that an applicant for registration shall be registered “in respect of the home named in the application”. All things being equal, I see no reason why on a sale of the premises/business as a going concern, GHA would refuse to register a new applicant, provided, of course, that person was suitable. Further the business could have been sold registered in the Second Claimant’s name.

I conclude that the grant of registration in each case would, in theory, have enabled some extra value to be realised. But I consider it impossible to assess such a value on the facts of this case. The value of a business depends largely on its capital assets, past and projected income and its goodwill. There are many different methods of valuing a business. Some of those methods are set out in Mr Kabraji’s report. Mr Kabraji considered the EBITDA (Earnings before interest, tax, depreciation and amortisation) method appropriate. Indeed it would appear that the immaturity of the business coupled with its indebtedness and lack of regular income would make other methods inappropriate.

With LA registration restored

Mr Lawler considered the EBITDA approach was valid in this case and considered Mr Kabraji’s assessment of 1364 operations pa with only 25% of this number carried out in the first year as a reasonable starting point. But he considered Mr Kabralji was wrong to discount further for risk : he said this was already allowed for in the multiplier. His approach to valuation was slightly different. Although he considered the EBITDAs used by Mr Kabralji reasonable and supportable ones he reduced them by applying percentage probabilities to them, in effect discounting them. He produced a weighted average EBITDA of £98,300 which x 4.5 produced a valuation of £442,000 compared with Mr Kabraji’s £786,141.

With GA registration

Mr Lawler adopted a similar approach to that he had adopted with LA registration but adopted different percentage probabilities taking the view that with GA registration the picture was more encouraging. Using a multiplier of 5 he reached a valuation of £830,000 compared with Mr Kabralji’s £873,553.

On the facts of this case I consider these valuations are unreal and highly speculative. Neither Mr Kabralji nor Mr Lawler was expert in valuing or marketing businesses in this field. Mr Lawler deferred to the Pinder reports of 1990 and 1991 made for the purposes of raising finance and valuing (cautiously one would expect) the business as a going concern as £500,000 and £600,000 respectively but these reports assumed successful trading with registration for GA operations. The Kabralji and Lawler reports are founded upon one uncertainty after another. In fairness to Mr Kabraji he was asked to make many of the assumptions and the others he based on published material, sometimes of a general nature. Mr Lawler adopted many of Mr Kabralji’s assumptions. So far as their assessments were based on Mr Siddiqui’s assertions I am quite satisfied they were hugely and unrealistically over optimistic.

Valuation also depends on the perceptions of any purchaser. Any purchaser of the business with restored LA registration would have to consider where his business was to come from. There he would likely be faced with the same problems as had, in my judgement, rendered the business unviable for the Claimants. The only advantage he would have had would have been premises already adapted for LA procedures. The extra value for the adaptation is inherent in Mr Keeling’s report and remained for the Claimants. If the business would have to be relaunched, as Mr Kabralji considered, any new purchaser would be starting all over again. Why in such circumstances should he pay for the business as opposed to the premises ?

Valuation of the business with GA registration would have to reflect the operations for which registration had been granted. Although I know what operations GHA had indicated might be approved, such approval was never given, and I have no evidence enabling me to decide what extra value is inherent in having registration for such identified operations. I am not prepared, in the absence of such evidence, to alight on some valuation of my own.

Can the Claimants establish that they have suffered any loss caused by the admitted breach of duty by the Defendants and if so what is the quantum of that loss.

The claim has been presented before me on the basis of loss of business income resulting from the breach. That was Mr Kabraji’s approach and Mr Lawler accepted that to award both expenditure since 1985 in establishing The Mini Hospital and lost profits would amount to double recovery. The Claimants also assert that loss of registration led to repossession of the premises and an ultimate forced sale at a reduced valuation. They have not sought to argue that they are entitled to recover expenditure incurred since 1985 nor the salaries invested in the business. Had they done so, on the facts of the case they would have had an uphill task.

It will be apparent from my findings that I cannot accept that any business losses have been proved to have resulted from the Defendants’ admitted negligence, as opposed to the loss of registration.

So far as the value of the premises is concerned, they were valued by Mr Keeling in 2001 for the purposes of this action. He reached a June 1994 valuation of £134,000 assessed by reference to 1994 rental values for nearby doctors’ surgeries and capitalisation of the achievable rent, assuming the premises were to be used as a doctor’s surgery, consulting rooms, or similar. He considered the premises had a valuation of £100,000 for residential use after making only a nominal allowance (he did not say what it was) for conversion from a mini hospital. I have not been told whether or not the premises were in fact sold as a surgery or for conversion to residential use. They appear from the photographs to be in residential use today. I was told that property values were at a low ebb in the period 1994-1996. In fact the premises were sold for £90,000 in December 1996.

The problem the Claimants face in claiming a loss under this head is that they were in the hands of the Albaraka Bank so far as sale of the property is concerned. The property was never at the material time theirs to sell, except with the bank’s cooperation, and given my earlier findings, was going to be sold in due course in any event. I am not satisfied any loss has been made out under this head.

That leaves the question of damages for disappointment, anxiety, humiliation and distress. I was not addressed on this and I do not recall any oral evidence being addressed to the point. Mr Siddiqui says in his second statement (Para265) that the events resulting from the Defendants’ negligence have caused them “much financial and emotional loss” but did not enlarge on this in evidence. Mrs Siddiqui made no mention of these matters in her witness statement.

As a proposition of common sense, it is easily foreseeable that the loss of opportunity to argue the appeal could cause distress and disappointment even if not anxiety and humiliation. But decided law does not measure recoverability in terms merely of forseeability. In Watts v Morrow [1991] 1 WLR 1423 Bingham LJ stated damages for distress should only be awarded where “ the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation”. This was adopted by the House of Lords in Johnson v Gore Wood and Co (A Firm) [2001] 2WLR 72. In Farley v Skinner [2001] UKHL 49 (11^th October 2001) the House of Lords held it was sufficient if a major or important part of the contract was to secure pleasure, relaxation or peace of mind. I do not consider it can be said in the present case that a major or important part of the Defendants retainer was to secure pleasure, relaxation or peace of mind, although such emotions might have followed had the appeal been heard and been successful as might have distress and disappointment had the appeal failed. In my judgement damages are not recoverable under these heads on the basis of the retainer and the facts of this case. Had I been able to take a different view my award to Mr Siddiqui would have been very modest. In Mrs Siddiqui’s case I would have made no award as the assertion was unsupported by any evidence and, on her own evidence, she played no part in the business from 1991 on.

On the facts of the present case, the only loss suffered would appear to be any costs incurred in pursuing the appeal which have been wasted by the breach, Neither party addressed me on this.

Did the Claimants act reasonably to mitigate any loss that they may have suffered as a result of any actionable act or omission on the part of the Defendants ?

Given the Claimants’ precarious financial state, which was known to the Defendants, I consider it unreasonable to have expected them to lay out further monies in the circumstances of this case.

Generally

I do not know what advice they sought. They do not appear to have been helped appropriately by those who advised them. I suspect these failures were due to the advising doctors’ lack of familiarity with the requirements needing to be met before registration could be achieved. Mr Odedun’s support for carrying out significantly more operations than were ultimately allowed hardly suggests that matters were fully thought through. I am surprised he was prepared to take on day to day responsibilities for The Mini Hospital when based in Ormskirk. Dr Akramulhaq supported the provision of the GA facility in these premises without adequate consideration of what would be required : he was not familiar with the NAHAT guidelines. GHA’s attitude appears initially to have been one of encouragement, albeit qualified by observations that conditions would need to be met.

Against this background it is not surprising that Mr Siddiqui’s ambitions were not contained. This case demonstrates that those wishing to set up day centres for medical treatment under LA or GA need these days to take full professional advice from those experienced in the relevant fields before embarking on such a venture. Modern regulation means that considerable financial backing is likely to be necessary for such projects.

I would like to end this judgement by expressing my thanks to Mr Ahmed Siddiqui, Mr Faisal Siddiqui, Mr Siddiqui and another member of the Siddiqui family, name unknown, who has been beavering away assisting in the presentation of their case. They have all done so with patience and politeness and I have benefited from their efforts. Their closing submissions demonstrated that they had mastered the facts of the case and were aware of the weaknesses. It is not often one can say that when litigants appear in person. I would also like to thank Mr Nicol for his assistance.