Anthony Dixon v North Bristol NHS Trust

“Bristol surgeon ‘harmed’ 203 women with unnecessary operations

Anthony Dixon performed pelvic floor surgery instead of offering less invasive alternative treatments

More than 200 women were harmed when a rogue surgeon carried out operations on them unnecessarily, an NHS inquiry has found.

Some of the women were left with life-changing physical problems or unable to work, while many also suffered trauma and serious psychological harm as a result.

Overall, 203 women on whom Anthony Dixon performed procedures between 2007 and 2017 came to harm, according to a review by the North Bristol NHS trust (NBT). Dixon, who for years was Britain’s most influential pelvic surgeon, worked for both the trust and the private Spire hospital in the city.

In 2017, NBT launched a review of Dixon’s performance and suspended him after dozens of women he had performed procedures on complained that they had experienced appalling consequences, including unmanageable pain and incontinence. The Guardian revealed in late 2017 that 100 women were suing him for medical negligence. Some cases have since been settled, but dozens are ongoing.

NBT sacked Dixon in 2019 and he is currently banned from practising in the UK.

During the review, 378 women were recalled and asked to set out their dealings with Dixon. All had undergone a procedure called laparoscopic ventral mesh rectopexy (LVMR), in which plastic mesh is inserted to repair weakened tissue in the pelvic floor.

In papers presented to NBT’s board on Thursday, board members were told that the inquiry had concluded. ‘The trust has notified 203 NHS patients that, although their LVMR operation was carried out satisfactorily, they should have been offered alternative treatments before proceeding to surgery. We have defined these patients as suffering ‘harm’ as a result,’ it said.

The trust set up a clinical advisory group of experts to assess what had happened with each of the 378 women. It found that of the 218 women Dixon had operated on at Southmead hospital, 110 suffered harm. And among another 169 NHS patients on whom he performed LVMR at the Spire hospital, 93 came to harm.

Another 175 women he treated at both facilities suffered no harm and there were also nine other cases in which the clinical advisory group was unable to reach a conclusion.

Luke Trevorrow, a medical negligence specialist solicitor at Irwin Mitchell lawyers, one of the firms representing Dixon’s victims, said: ‘For many years patients have had serious concerns as to whether procedures they underwent were appropriate. Sadly the trust’s own findings have now vindicated these fears.

‘This latest information is incredibly concerning and has caused a great deal of distress for our clients, many of whom continue to experience physical and psychological problems following their surgery.’

The outcome of the inquiry was first reported by the BBC’s west health correspondent, Matthew Hill. The trust summarised the findings in a five-page update it included in the 157 pages of papers its board were due to discuss on Thursday. NBT did not alert the media that it was finally publishing details of a major probe it had taken almost five years to complete.

Annette Whiting, 62, from Bristol, one of those on whom Dixon performed LVMR, told the BBC: ‘I felt violated. Beyond angry, beyond upset.

‘It affects your everyday life. Your body aches, you have to run to the toilet, you’ve got no control over it whatsoever.’

The trust said that with regard to the 203 patients ‘harm is defined as undergoing an operation that may not have been required, where other less invasive options could have been offered first, even when the LVMR procedure was performed to the appropriate, clinical standard.’

NBT said it was ‘extremely sorry’ for the suffering Dixon had inflicted by doing LVMRs.

A spokesperson for the General Medical Council, which regulates the medical profession, confirmed that Dixon does not currently have a licence to practise medicine ‘pending [the] conclusion of fitness to practise investigations’.”

The underlined parts of the article contained hyperlinks to further articles that had been published by The Guardian, on 24 November 2017, and the BBC on 26 May 2022 (which also remain accessible online).

“The Trust has considered its duties under the CPR in terms of pre action disclosure, as this is clearly now an issue sitting within litigation (having moved on from duty of candour issues). We now consider that [Document X] in its full content, is potentially relevant to the claims being brought against [the Defendant], where the claimants have undergone pelvic surgery by [the Claimant]. [Document X is] disclosable in the claims process unless privileged. [Document X] is not covered by legal advice privilege, litigation privilege or public interest immunity. In our view [Document X] is central to the issues in the litigation, including for those claimants that were not part of the … process [that led to Document X]. The documents are relevant because they go to credibility, propensity and how [the Claimant] conducted himself professionally. The Trust has a continuing duty of disclosure. [The terms of CPR 31.16 were set out]

In addition to the above pre-action disclosure obligations, we can confirm that one of the relevant cases has now been issued and proceedings served, and therefore disclosure will shortly arise, and [Document X] and relevant MHPS [Maintaining High Professional Standards] documents will be disclosed via that procedural step in any event.

We consider that the Trust has taken reasonable steps to address the rights of the patients reviewed in the … process [that led to Document X] and the MHPS process, by undertaking the disclosure of extracts to them, and securing relevant consents. The Trust continues with that process, ensuring all relevant aspects of [Document X] where the [relevant] cohort of patients are being discussed, and relevant extracts from the MHPS process, are shared with those patients.

We therefore write to advise you that, in the context of the claims being brought against the [Defendant], where the claimants have undergone pelvic surgery by [the Claimant] it is the Trust’s intention to now disclose [Document X] in its entirety, save for any discrete sentences or paragraphs where the patient whose care is being discussed, has not consented for that disclosure at this time. The Trust also intends to disclose relevant aspects of the MHPS process, including the MHPS outcome letter.

The Trust considered you would wish to be aware of this intended step at this time. We can advise that this step will be taken 7 days from the date of this letter, which is being emailed to you. The disclosure is intended to address the Trust’s duties under the CPR as described above, and to enable the progression of a number of cases where claims have been brought, including those brought by patients involved in the process.”

by whom the requests for information/disclosure have been made;

to whom is it intended that disclosure may be made/shared with;

what exactly the Trust is proposing to disclose, in particular, what extracts it proposes to disclose; [and]

provide copies of the pleading in cases where it is said that disclosure is required.”

Claimant’s (sic) solicitors representing claimants bringing clinical negligence claims regarding care provided by [the Claimant] whilst he was an employee of [the Defendant] as previously advised.

See above

The Trust intends to disclose [Document X] in its entirety including any appendices save for where extracts relate to any patients who have not given consent to this disclosure. We can confirm that this is three patients at this time. The Trust also intends to disclose the MHPS outcome letter (minus reference to one patient who has not yet consented to their information being shared).

We do not intend to provide copies of pleadings. [The Claimant] is not a party to the matters in question.”

The letter concluded:

“We are satisfied that we can disclose these documents within the claims process. [The Claimant] and your firm as his legal representatives have had these materials for a number of years and have been on notice since the end of 2020 at the very latest, that there would be an intended process of disclosure within the claims setting, of these key materials. This direction of travel is not unexpected.

In the event you are instructed to seek to prevent legitimate disclosure of these materials in the claims process then please serve any relevant proceedings upon DAC Beachcroft the Trust’s solicitors…”

All NHS Trusts are required to implement the guidance contained in Maintaining High Professional Standards in the Modern NHS 2005 (“MHPS”). Among other things, the MHPS sets out the process to be used by NHS Trusts when there are concerns about a doctor’s conduct, capability or health. The Defendant has adopted an implemented MHPS.

MHPS investigations are subject to confidentiality restrictions, albeit recognised that information may need to be disclosed, for example for the protection of the public. The Claimant contends that “effective participation of all those involved [in a MHPS investigation] is likely to be hindered if they know there is a risk that the information provided as part of the process may be made public at a later date, save as part of regulatory or other similar processes.”

The Claimant contends that there are implied terms of confidentiality in his contract of employment, including that

On 24 May 2017, the Claimant attended a meeting with the Deputy Medical Director of the Defendant. At that meeting the Claimant was informed that the Defendant had received several complaints about the diagnostic and consent processes followed by the Claimant. The Claimant was informed that he was restricted from all clinical practice with the Defendant.

On 30 May 2017, the Claimant was advised that the Defendant would be conducting a MHPS investigation into the complaints.

On 14 August 2017, the Claimant was excluded from all practice by the Defendant.

On 3 October 2018, the MHPS investigation report was produced.

The Claimant attended a hearing held by the Defendant between 3-7 June 2019.

Following that, the Claimant’s employment with the Defendant was terminated.

what Document X is and the circumstances in which it came into existence;

the contents of the Document X; and

the contents of the MHPS outcome letter.

I shall refer to these collectively as the “Confidential Information”.

that the identities of the Claimant and the Defendant shall not be disclosed;

there be substituted for all purposes of this case, in place of references to the Claimant by name and whether orally or in writing, references to ‘EGC’. Likewise the Defendant shall be referred to as ‘PGF NHS Trust’;

that the Claimant and Defendant be described in all statements of case or other documents to be filed or served in the proceedings and in any judgment or order in the proceedings and in any report of the proceedings by the press or otherwise as ‘EGC’ and ‘PGF NHS Trust’ respectively;

to the extent necessary to protect the Claimant’s and Defendant’s identities, any other references, whether to persons or places or otherwise, be adjusted appropriately, with permission to the parties to apply in default of agreement as to the manner of such adjustments;

that the address of the Claimant and of the Defendant be stated in all statements of case and other documents to be filed or served in the proceedings as the address of the Claimant’s and Defendant’s solicitors respectively;

…

Court Files

that the unredacted Claim Form and the unredacted Particulars of Claim be replaced by the redacted Claim Form and the redacted Particulars of Claim;

the unredacted Claim Form and the unredacted Particulars of Claim are to be placed on the Court file marked ‘not to be opened without the permission of a Judge, Master or District Judge of the Queen’s Bench Division’;

…

that a non-party may not inspect or obtain a copy of either the unredacted Claim Form or the unredacted Particulars of Claim from either the Court paper files or digital files without the permission of a Master or High Court Judge. Any application for such permission must be made on 14 days’ notice to the Claimant’s solicitor, and the Court will effect service;

the court’s paper and digital files are to be retained by the Court and marked ‘Anonymised’;

Reporting Restriction

that reporting restrictions apply as to the disclosing of any information that may lead to the subsequent identification of the Claimant or Defendant. The publication of the name and address of the Claimant or the Defendant or of any member of the Claimant’s immediate family is prohibited.

that reporting restrictions also apply as to the disclosing of information contained in the documents, the confidential and private nature of which the Claimant is seeking to protect by these proceedings.

that any non-party affected by this Order may apply on notice to all parties to have this Order set aside or varied…”

Without these orders being granted, the bringing of the proceedings would defeat their purpose; in other words, the litigation process would destroy that which the Claimant seeks to protect. In particular, without appropriate restrictions on access to the Court file, the Confidential Information (or parts of it) would be open to public inspection and the confidentiality that the Claimant is seeking to protect thereby lost.

It would be inevitable that, at any interim and/or final hearing, there would be need to discuss the Confidential Information in open court which would also threaten to destroy the confidence in the information. This was not a case where the Court would be able to adopt the expedient (as suggested in Various Claimants -v- Independent Parliamentary Standards Authority [2022] EMLR 4) of using confidential schedules to statements of case and witness statements to ensure that the confidential information does not enter the public domain as a result of the proceedings themselves.

Anonymisation of the Claimant (and the making of associated orders to enforce that anonymity) are necessary to protect the Claimant’s Article 2 and Article 8 rights. As to the former, Ms Lang stated:

“Throughout the last few years, there has been much press coverage of the complaints – with patients being interviewed by members of the press and the BBC broadcasting documentaries… It seems to me that every time there is some new information from the Defendant, the private hospital or something raised by a patient or their solicitors, the BBC reporter contacts me for a comment. I am also contacted by The Guardian for comments. My understanding is that the contents of [Document X and the MHPS outcome letter] have not been made public… I would be devastated if these were to be made public. It would be like returning to 2017 again.”

“Since the question of the disclosure of [Document X] and the MHPS outcome letter was raised again by the Defendant in May 2022, I have once again become anxious, my sleep pattern is very poor and I worry that I am probably becoming depressed again… In addition, the Defendant’s decision to seek to disclosure (sic) [Document X] and MHPS outcome [letter] at a time when my GMC proceedings are due to start in the Autumn has resulted in an additional amount of distress and anxiety. I need to be able to focus on preparing for those proceedings and the prospect of the contents of [Document X] in particular becoming public is impacting on my ability to prepare for that hearing…

I am also most concerned about the effect of publication of [Document X] and the MHPS outcome [letter] would have on me… If the contents… were to be made public, I would be devastated and I worry that I might find myself back in the same position in which I found myself in 2017, when I contemplated suicide.

I am also worried that publicity about my application to prevent publication of these documents will have a similarly adverse effect on my health. I cannot say whether [it] would be such as to result in me contemplating suicide again, but the thought of publicity is already having a negative impact on my health.

I am also worried that publicity would impact on my ability to cope with the upcoming GMC hearing, particularly if the contents of [Document X] were made public, but also the impact of being named in newspapers and on television.”

“Reviewing his electronic records, the last time that [the Claimant] was issued [identified medication] was on 27.3.19 and [identified medication] on 24.5.19. [The Claimant] is not taking any regular medication and the last consultation regarding depression was on 21.5.18 as below.”

“… the Defendant wrote during 2021, to [certain categories of patients] to make them aware of the findings… in so far as they related to the care of those individual patients. This was in satisfaction of the Defendant’s duty of candour to such patients, both in general transparency pursuant to Regulation 20(1) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (‘the Regulations’), and where the requisite harm has occurred, pursuant to their duty under Regulations 20(2) of the Regulations. In the process of contacting those patients, the Defendant also shared extracts of [Document X]… and/or a summary of findings from the MHPS outcome letter.”

Exhibited to the witness statement was an example of such a disclosure letter to a patient together with an extract from Document X.

“… the Defendant does not accept that the purpose of the injunction to prevent disclosure of [Document X] and the MHPS outcome letter would be defeated if the application for anonymity and reporting restrictions were not granted. It is already a matter of public knowledge that the Claimant was dismissed by the Trust following an … investigation… Extracts of [Document X] have already been disclosed to patients … within the Defendant’s duty of candour steps. The fact that [Document X] exists… is also known expressly (patients who have received extracts) or by implication from the press reporting.

So far as strictly necessary, a reporting restriction could be imposed by the Court in relation to particular contents of [Document X or the MHPS outcome letter] (although the Defendant does not consider any such order is likely to be necessary since patient names are anonymised), but the fact that [the documents] are in existence and may be negative to the Claimant is not (when considering the criteria for such orders) a justification for the anonymity application as drafted or an order for reporting restrictions in the wide terms of the draft order sought.

While it is evident from the application that the Claimant does not wish it to be publicly known that he is seeking to prevent disclosure by the NHS Defendant of the MHPS [outcome] letter and [Document X] to patients…, the Defendant considers that there is a significant public interest in:

the nature of the application itself (both the anonymity application and the underlying injunctive relief application); and

how the application is determined by the Court. Given the public responsibilities of the NHS Defendant, with regard to its duty of candour and with regard to protecting patients from harm, and the role of the NHS Defendant in clinical negligence claims brought by patients affected by the Claimant’s care, and compliance with CPR requirements (both pre-action and issued cases), the Defendant considers that such applications should not be conducted in secret.”

“6.3 [The Claimant] told me that prior to the events subject of the current proceedings he has never been subject of any disciplinary proceedings. He said that he was fully up to date with revalidation and the annual process…

6.4 He stated that he has not worked since August 2017 other than working on his small farm. He also stated that he has been working excessively in order to prepare for the current proceedings…

…

8.4 [The Claimant] stated that he enjoys working on the farm but he also reported that the majority of his time is spent preparing for the current proceedings and attending preparatory meetings; he said: ‘I’ve kept on top of it because I knew nobody else was’.

…

10.4 [The Claimant] told me that since 2017 there has been a deterioration in his mental health.

10.5 He told me that when he was first told he could not go back to work, he developed symptoms of generalise anxiety and sleep disturbance (initial insomnia and early morning wakening). He stated that at the time he consulted his GP and that he was prescribed [identified medication].

10.6 [The Claimant] said that in or around July 2017 there was a further deterioration in his mental health, and he attributed this to the media attention that had emerged. He stated: ‘Then the BBC started coming to my house’; he told me that journalists were asking him for comments and that he also received contacts from former patients participating with the BBC. He stated that such deterioration in his mental health was characterised by the presence of: agitation, ‘surges of adrenaline’ (he told me that such surges would last for hours and that he was experiencing these daily), episodes of shaking, retching, and loss of appetite (including weight loss; he said ‘it dropped off me, I lost a lot of weight’). He stated he subsequently contacted his GP again and that he was started on [identified medication].

10.7 [The Claimant] told me that as the media attention increased his mental health further deteriorated and he told me: ‘I completely lost it’. He said that around one week after the [medication] had been started he was still suffering from symptoms such as described in the previous paragraph but he also told me that by this time he had developed excessive tearfulness, low mood, and suicidal thinking. He stated that these suicidal thoughts were present for about two weeks… He told me ‘I wasn’t functioning’. He also reported that around this time the dose of the [medication] was increased and that his wife took time off work in order to care for him.

10.8 [The Claimant] stated that after the airing of the BBC programme [I was told at the hearing a Panorama programme in 2017] (in regards to the complaints brought against him) ‘I was barely holding it together’.

10.9 He stated that during the weeks following the airing of the BBC programme and the aforementioned media attention his mental state gradually improved. He said: ‘Then the drugs kicked in. Then things died down in terms of the media and that allowed me to recover.’

10.10 [The Claimant] estimated that the period of low mood had lasted around six weeks and he said: ‘Then I got better but even then I would still get waves of adrenaline and my head would be racing away’. He also said that whilst his mood had improved, he continued to experience mood instability. Further, he described the presence of residual poor sleep. [The Claimant] stated that his GP had tried adding [other medication], but that he had not been able to tolerate this and that therefore this was discontinued.

…

10.12 He said that during the past four years his mental health has continued to wax and wane and he told me: ‘I kinda coped, I’ve always been able to compartmentalise things. Every time something happened with the investigation, I had relapses.’ He stated that these relapses were characterised by the presence of a worsening in his anxiety, agitation, and a deterioration in his sleep… He stated that when these ‘relapses’ are at their worst these can be accompanied by feelings of being a burden and fleeting suicidal thoughts.

10.13 As aforementioned, he reported that these symptoms, as set out in the previous paragraph, have fluctuated during the past four years and he told me that this worsened when matters surrounding the current proceedings became more acute. He was of the view that in particular media attention caused his mental state to deteriorate and he explained to me: ‘Every so often the BBC get involved.’ He also told me ‘The main thing is media. The GMC is nothing, having 200 people suing you is nothing’.

10.14 [The Claimant] told me that currently he is no longer being treated with any [medication] and he told me that he had stopped taking [identified medication] during the Covid-19 pandemic. He told me that this was due to his view that his mental state had improved; he told me ‘I was doing remarkably well. I was doing alright (sic) but I couldn’t have functioned as a doctor’.

…

10.16 [The Claimant] stated that more recently there has been an acute deterioration in his mental state (this is set out in detail further in this report) and he told me that he had made arrangements to see his GP later in the day of my meeting with him in order to possibly recommence [his medication]. He stated ‘The episode that we’re dealing with now has brought it back’.

10.17 To date I have not had sight of his medical notes and therefore I have not been able to corroborate the past medical and past psychiatric history provided to me by [the Claimant].

…

10.19 The GP notes recorded on 19 July 2017 his suicide risk to be low and it was recorded on 11 August 2017 that he did not present with suicidal ideation.

…

12.4 [The Claimant] stated that during the past three weeks there has been a worsening in his mood and he described his mood as: ‘It’s down. Definitely down, I feel as though I’m relapsing’. He described the presence of sleep disturbance, loss of appetite and loss of libido; these are biological symptoms that can be seen in people suffering from a depressive disorder. He also described the presence of depressive symptoms… He stated that he considers the possibility of there being further media attention extremely distressing and that in the event of him not being offered anonymity there would likely be a further deterioration in his mental health. He was of the opinion that this would likely be associated with an increase in his suicidal thinking but that this would also negatively affect his ability to participate in these proceedings, ‘it would make it very difficult for the GMC things where I have to be functioning’.

12.5 [The Claimant] also reported that in recent weeks he has again been troubled by suicidal thinking. He told me that currently he does not harbour any active plans to harm himself or commit suicide and he described having the following protective factors: ‘Knowing that I’m right’, his family, and his mother… [The Claimant] was of the view that the Court may not fully recognise the negative impact these matters had upon his mental health and told me: ‘The only way you can prove you are right is by killing yourself’…” …

“The current state of [the Claimant’s] mental health and wellbeing generally

13.1 To date I have not had sight of all of his medical notes and therefore I reserve the right to alter any views formulated within this report in light of information that may be contained within his medical records should these be made available to me. It is also the case that the unavailability of medical notes should be regarded as a limitation when formulating medico-legal opinions.

13.2 As far as I was able to ascertain, it seems that prior to the events subject of the current proceedings (starting in or around 2017) [the Claimant] did not have an established history of mental health difficulties…

13.3 Based upon the findings obtained at the time of my assessment it is my view that [the Claimant] should currently be regarded as suffering from a depressive disorder that is of a moderate severity. I base this view upon the fact that he reported the presence of a lowering in his mood, he described the presence of biological symptoms that can be seen in people suffering from depressive disorders and he also described experience depressive symptoms such as: poor self care, loss of interest, social withdrawal, irritability, lack of motivation, excessive tearfulness, and bouts of suicidal thinking.

13.4 He also described the presence of symptoms of persistent anxiety and the presence of panic attacks. On balance, it is my view that these symptoms can be understood in the context of his depressive disorder although it would also be reasonable to consider these as a separate comorbid diagnosis of a panic disorder.

13.5 Based upon the information provided to me by [the Claimant] it appears that he first developed a depressive disorder in 2017 and that this condition has ebbed and flowed to date depending on the presence of stressors associated with these proceedings. It is apparent from the information he gave me that he is particularly sensitive to experiencing a deterioration in his mental health in the context of publicity or media attention. I note that whilst the history of low mood and depression could be corroborated from the information contained in the limited medical notes I have seen, it is also the case that the information within these notes did not corroborate the history of suicidal thinking.

What effect, if any, does the possible (proposed) publication of the contents of the Documents currently have on [the Claimant]

13.6 Whilst it appears from the information provided to me by [the Claimant] that any activity or events surrounding the current proceedings are associated with a deterioration in his mental health leading to a worsening of his mood and an increase in his symptoms of anxiety, it is also the case that he made a differentiation in the stressful impact between different activities or actions surrounding these proceedings.

13.7 It is my opinion that the proposed publication of the content of the Documents, potentially to a large number of former patients, would be associated with a detrimental impact upon his mental health and this would become manifest by a likely further worsening of his depressive disorder and a worsening of his anxiety symptoms. However, based on the findings obtained at the time of my assessment it seems that the current deterioration in his mental health was mainly linked to the possibility of his anonymity being preserved and him becoming subject of further media attention rather than mere disclosure of the documents.

What effect, if any, does the possible (proposed) publicity surrounding the proceedings if they are non anonymised/subject to restricted reporting orders currently have on [the Claimant]

13.8 As highlighted within the report, it appears to be the case that when considering the range of stressors involved in these proceedings, it seems that [the Claimant] considers the lack of anonymity and the likelihood of further media attention to be the most severe of these stressors. He also attributed the emergence of suicidal thinking (current and historically) to the possibility of lack of anonymity in these proceedings.

13.9 It is therefore my view that publicity surrounding these proceedings, if not anonymised or subject to reporting restrictions, would very likely result in a further deterioration in his mood and anxiety with a likely increase in his suicidal thinking. It already appears to be the case that the possibility of such lack of anonymity has already resulted in a worsening of his mental health and a re-emergence of suicidal thinking.

If the contents [of Document X] and MHPS outcome letter were made public, what effect (if any) would such a disclosure be likely to have on [the Claimant’s] mental health?

13.10 Assuming that the contents of these documents were such as not to maintain the anonymity of [the Claimant] then this would result in the same type of deterioration in his mental health as set out in paragraph 13.9. It is of course difficult to anticipate the exact extent of such a deterioration in his mental health.

If the court refuses to (1) anonymise the parties and (2) make restrictions on reporting, what effect (if any) would the publicity of proceedings (including any publicity surrounding the making of this application for anonymity and restricted reporting orders be likely to have on [the Claimant’s] mental health?

13.11 Given that [the Claimant] is already suffering from a moderate depressive disorder and that therefore his mental health should be regarded as vulnerable, the history of the detrimental impact media attention has had on his mental health, and his current distress surrounding the possibility of him being subject of media attention, it is my view that if there were no reporting restrictions and the parties not anonymised then it is more likely than not that this would be associated with a significant worsening of his depressive disorder.

13.12 As aforementioned, it is difficult to predict accurately the extent of such a deterioration in his mental state. However, this would likely involve a worsening of the depressive anxiety symptoms he is already experiencing, but this may also introduce depressive symptoms including concentration difficulties and cognitive impairment. It is also possible that the deterioration in his mental would be of such a severity as to render him incapable of participating in these proceedings; this may be the case if he developed cognitive difficulties (this can commonly be seen in depressive disorders) that were such as to render him incapable to litigate. For completeness, I should state that currently I do not have any acute concerns about his capacity to litigate but I merely raise this as a possible adverse outcome in the event of his mental health significantly deteriorating.

Do you consider there to be any threat (whether now or in the future) to [the Claimant’s] life if the contents of the Documents are made public?

13.13 For completeness I state that I have interpreted ‘threat to [the Claimant’s] life’ as risk of suicide. It is my view that other threats to his life would not be part of psychiatric expertise.

13.14 As set out within the report, it appears to be the case that [the Claimant] has a past history of suicidal thinking and that in recent weeks he has experience a re-emergence of such suicidal thoughts. These are currently not associated with active suicidal plans and he described the presence of different protective factors. It also appeared to be the case that the presence of suicidal thinking was closely linked to his fears of his anonymity not being preserved as opposed to the stress of the current proceedings per se.

13.15 Clearly, if the documents were to be made public but in a manner whereby his anonymity could be preserved, then this would still be a stressful event that may be associated with a deterioration in his mental health, namely a worsening of his depressive disorder and his anxiety. It is also the case that any deterioration of his depressive disorder could be associated with a worsening of suicidal thinking and risk of suicide. Therefore, whilst [the Claimant] mainly considered his risk of suicidal thinking to be associated with his anonymity not being preserved, it is my view that the possibility of an increase in his suicide risk cannot be excluded if the documents were to be made public even in an anonymised manner.

Do you consider there to be any threat (whether now or in the future) to [the Claimant’s] life if the proceedings go ahead without anonymisation/restrictions on reporting in place?

13.16 It is apparent from the history as described to me by [the Claimant] and his current presentation that his fear of the proceedings going ahead without anonymisation or reporting restrictions is very distressing and closely linked with the recent deterioration in his mental health and the re-emergence of suicidal thinking.

13.17 I repeat that at the time of my assessment he did not describe the presence of any acute suicidal plans and he had also identified different protective factors. However, in the event of his mental health further deteriorating, as a result of his anonymity not being preserved, then I consider there to be a significant risk of there being a worsening in his suicidal thinking to such a degree that the identified protective factors may no longer be such as to maintain his safety…”

Dr Vandenebeele’s report dated 11 July, appears to be entirely confused as to which proceedings his report is directed. The Claimant is facing an investigation by the GMC and it is understood that there is likely to be some form of hearing of his case within a couple of months. It is to those proceedings, which he calls: “the current proceedings” that his report appears to be addressed at paras 6.3; 6.4; 8.4; 10.13; 13.5 “these proceedings”; 13.9; and 13.12.

It was a remote assessment: para 1.2.

Dr Vandenebeele has not seen the Claimant’s medical records: para 1.3 and 10.17.

Such medical records as he has seen does not corroborate the history of suicidal thinking which the Claimant gave: para 13.5.

Para 13.7 appears to be based on a misunderstanding by the author that former patients are unaware of the contents of [Document X] and the MHPS outcome or even the generic nature of the criticisms. This is just incorrect because:

The general rule is that a hearing is to be in public. A hearing may not be held in private, irrespective of the parties’ consent, unless and to the extent that the court decides that it must be held in private, applying the provisions of paragraph (3)

In deciding whether to hold a hearing in private, the court must consider any duty to protect or have regard to a right to freedom of expression which may be affected…

A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied that one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice:

publicity would defeat the object of the hearing;

it involves matters relating to national security;

it involves confidential information (including information relating to personal financial matters) and publicity would damage the confidentiality;

a private hearing is necessary to protect the interests of any child or protected party;

it is a hearing of an application without notice and it would be unjust to any respondent for there to be a public hearing;

it involves uncontentious matters arising in the administration of trusts or in administration of a deceased person’s estate; or

the court for any other reason considers this to be necessary to secure the proper administration of justice.

The court must order that the identity of any person shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that person…

“In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.”

an order that withholds the name of the relevant party in the proceedings and permits the proceedings to be issued replacing the party’s name with a cipher under CPR 16.2; and

a reporting restriction order prohibiting the identification of the anonymised party.

[9] Open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders are, public: see article 6.1 of the Convention, CPR 39.2 and Scott -v- Scott [1913] AC 417…

[10] Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. They are wholly exceptional: R -v- Chief Registrar of Friendly Societies, Ex p New Cross Building Society [1984] QB 227, 235; Donald -v- Ntuli [52]-[53]. Derogations should, where justified, be no more than strictly necessary to achieve their purpose.

[11] The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: M -v- W [2010] EWHC 2457 (QB) [34].

[12] There is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done. Exclusions must be no more than the minimum strictly necessary to ensure justice is done and parties are expected to consider before applying for such an exclusion whether something short of exclusion can meet their concerns, as will normally be the case: Ambrosiadou -v- Coward [2011] EMLR 21 [50]-[54]. Anonymity will only be granted where it is strictly necessary, and then only to that extent.

[13] The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence: Scott -v- Scott (above) 438–439, 463, 477; Lord Browne of Madingley -v- Associated Newspapers Ltd [2008] QB 103 [2]-[3]; Secretary of State for the Home Department -v- AP (No.2) [2010] 1 WLR 1652 [7]; Gray -v- W [2010] EWHC 2367 (QB) [6]-[8]; and JIH -v- News Group Newspapers Ltd (Practice Note) [2011] 1 WLR 1645 [21].

[14] When considering the imposition of any derogation from open justice, the court will have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings. It will also adopt procedures which seek to ensure that any ultimate vindication of article 8 of the Convention, where that is engaged, is not undermined by the way in which the court has processed an interim application. On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which the party relying on their article 8 Convention right is entitled. The proper approach is set out in JIH.

In the first category (recognised expressly in CPR 39.2(3)(a)) fall the cases – such as claims for breach of confidence – in which, unless some restrictions are imposed, the Court would by its process effectively destroy that which the claimant was seeking to protect. There is no general exception to the principles of open justice in cases involving alleged breach of confidence/misuse of private information. However, it is well recognised that this type of case may well justify some derogation. The challenge is usually to ensure that the measures imposed are properly justified; that they are tailored to the facts of the individual case; and that they are proportionate, i.e. the least restrictive measure(s) necessary to protect the engaged interest: JIH [21]. In breach of confidence/privacy cases, where this issue arises frequently, the Court may be confronted with a choice between anonymising the party (which may permit the confidential/private information sought to be protected to be identified in open court) and refusing anonymity (in which case, the confidential/private information would have to be withheld – at least initially – from any public hearing/judgment): see discussion in Khan -v- Khan [88]-[89]. The Court must consider whether it can fashion a procedure (for example the use of confidential schedules to witness statements and statements of case) that will properly protect the confidential/private information during the case management and trial phases of the litigation: Various Claimants -v- Independent Parliamentary Standards Authority [47]. If it can, then the applicant may fail to demonstrate that further derogations from open justice are necessary.

The second category consists of cases in which the anonymity order is sought on the grounds that identification of the party (or witness) would interfere with his/her Convention rights. In that case, the Court must assess the engaged rights and, if appropriate, perform the conventional balancing exercise from In re S: RXG [25]; XXX [20]-[21].

[38] … [T]he names of the parties to litigation are important matters that should be available to the public and the media. Any interference with the public nature of court proceedings is to be avoided unless justice requires it: R -v- Legal Aid Board, ex parte Kaim Todner (A Firm) [1999] QB 966, 978g. No doubt there will be many litigants in the courts who would prefer that their names, addresses and details of their affairs were not made public in the course of proceedings. In Kaim Todner, Lord Woolf MR explained (p.978):

[39] The same point was made by Lord Sumption in Khuja -v- Times Newspapers Ltd [2019] AC 161:

[30] None of this means that if there is a sufficient public interest in reporting the proceedings there must necessarily be a sufficient public interest in identifying the individual involved. The identity of those involved may be wholly marginal to the public interest engaged. Thus Lord Reed remarked of the Scottish case Devine -v- Secretary of State for Scotland (unreported) 22 January 1993, in which soldiers who had been deployed to end a prison siege were allowed to give evidence from behind a screen, that “their appearance and identities were of such peripheral, if any, relevance to the judicial process that it would have been disproportionate to require their disclosure”: A -v- BBC [2015] AC 588 [39]. In other cases, the identity of the person involved may be more central to the point of public interest, but outweighed by the public interest in the administration of justice. This was why publication of the name was prohibited in A -v- BBC. Another example in a rather different context is R (C) -v- Secretary of State for Justice (Media Lawyers Association intervening) [2016] 1 WLR 444, a difficult case involving the disclosure via judicial proceedings of highly personal clinical data concerning psychiatric patients serving sentences of imprisonment, which would have undermined confidential clinical relationships and thereby reduced the efficacy of the system for judicial oversight of the Home Secretary’s decisions.

A positive obligation to take steps to protect life will arise when the evidence demonstrates that there is a “real and immediate” threat to life; “a real risk is one that is objectively verified and an immediate risk is one that is present and continuing”. The test is not readily satisfied, and the threshold is high. For a threat to be “real” it must be objectively well-founded: Re Officer L [20].

The rights guaranteed by Articles 2/3 are, in this context, unqualified. The Convention therefore requires that proceedings must be organised in such a way that the interests protected by those articles are not unjustifiably imperilled: RXG [25(ii)].

Where there is a conflict between open justice (and rights protected by Article 10) and the unqualified rights guaranteed by Articles 2/3, there can be no derogation from the latter. But even in such a case, care must nevertheless be taken to ensure that the extent of the interference with open justice is no greater than is necessary: RXG [25(vi)].

Restrictions upon freedom of expression must be (a) in accordance with the law; (b) justifiable as necessary to satisfy a strong and pressing social need, convincingly demonstrated, to protect the rights of others; and (c) proportionate to the legitimate aim pursued: Venables [2001] Fam 430 [44]. 

(ii)  The strong and pressing social needs which may justify a restriction upon freedom of expression, in principle, include: (a) the right to life and prohibition of torture under articles 2 and 3 (Venables [45]-[47]; X (formerly Bell) -v- O’Brien [2003] EMLR 37 [16]; Carr -v- News Group Newspapers Ltd [2005] EWHC 971 (QB) [2]; and A -v- Persons Unknown [2017] EMLR 11 (“Edlington”) [9], [35]); and (b) the right to a private and family life under article 8 (Venables [48]–[51]; Bell [19]–[31]; and Carr [3]).

The threshold at which article 2 and/or 3 is engaged has been described variously as: ‘the real possibility of serious physical harm and possible death’ (Venables [94]); ‘a continuing danger of serious physical and psychological harm to the applicant” (Carr [4]); an ‘extremely serious risk of physical harm’ (Edlington [36]). 

In Venables ([87]–[89]) Dame Elizabeth Butler-Sloss P considered that the authorities of Davies -v- Taylor [1974] AC 207 and In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 provided helpful guidance as to the assessment of future risks to physical safety. She held that the test is not a balance of probabilities but rather that the evidence must ‘demonstrate convincingly the seriousness of the risk’ and raise a real possibility of significant harm: a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm. 

(v)  Where an applicant demonstrates, by cogent evidence, that there is a real and immediate risk of serious physical harm or death, then there is no question of that risk being balanced against the article 10 interests: Carr [2]. 

In cases where articles 2 and 3 are not engaged and the conflict is between the article 8 and article 10 rights, neither right has precedence over the other. What is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case. The justifications for interfering with or restricting each right must be taken into account and a proportionality test must be applied: Edlington [28]. 

The rights guaranteed by articles 2 and 3 are unqualified. Where the evidence demonstrates that there is a real and immediate risk of serious harm or death this cannot be balanced against any article 10 right, no matter how weighty. In that context, it should be noted that we would respectfully depart from the proposition articulated by Sir Geoffrey Vos C in Edlington [35] that article 2 and 3 rights could be balanced against article 10 (a proposition later adopted by Sir Andrew McFarlane P in Venables -v- News Group Newspapers Ltd [2019] 2 FLR 81 [43]): see further [25(vi)] above. 

However, where evidence of a threat to a person’s physical safety does not reach the standard that engages articles 2 and/or 3, then the evidence as to risk of harm will usually fall to be considered in the assessment of the person’s article 8 rights and balanced against the engaged article 10 rights. Whilst the level of threat may not be sufficient to engage articles 2 or 3, living in fear of such an attack may very well engage the article 8 rights of the person concerned…” 

“… First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test…”

[26] The central problem with Mr Rule’s submissions on the law, so it seems to me, is that he focuses exclusively on the general methodology for resolving conflicts between Articles 8 and 10 that is prescribed in In re S [17], without regard to what Lord Steyn went on to say about the application of that methodology. Neither Article 8 nor Article 10 has priority as such. But where the open justice principle is engaged the weight to be attributed to the Article 10 right to impart and receive information is considerable. Lord Steyn made this clear at a number of points in his judgment in In re S, beginning at [18], where he identified “the general rule” that “the press, as the watchdog of the public may report everything that takes place in a criminal court”, adding that “in European and in domestic practice, this is a strong rule. It can only be displaced by unusual or exceptional circumstances”. 

[27] This does not mean that a fact-sensitive approach is not required. As Lord Steyn went on to say, “The duty of the court is to examine with care each application for a departure from the rule by reason of rights under article 8.” The “strong rule” referred to by Lord Steyn reflects the fact that not all kinds of speech are of equal value. The jurisprudence shows there is a hierarchy or scale, with political speech towards the top end, via what Baroness Hale has called “vapid tittle-tattle”, down to hate speech (to the extent this is protected by the Convention). Speech involving the communication to the public of information about what takes place in a criminal court ranks high in this scale of values. The fact-sensitive investigation must start with that recognition. The point is reflected in paragraph [30]-[31], where Lord Steyn emphasised the importance of the freedom of the press to report the progress of a criminal trial without restraint, and at [37], where Lord Steyn approved the Convention analysis of Hedley J at first instance, in these terms: 

[28] In my judgment, none of the later authorities relied on by Mr Rule serves to undermine or qualify the authority of these passages from In re S, or to refine or add to what was said by Lord Steyn in a way that helps the argument for the appellant. On the contrary, the cases relied on contain several reaffirmations of the same approach. 

the proper administration of justice, including the need to ensure that the proceedings do not defeat the purpose for which they have been brought;

the protection of the Claimant’s Article 2 right to life; and

the protection of the Claimant’s Article 8 right to respect for his private and family life and correspondence.

“… it is relevant that at each stage this matter has in fact proceeded without identification of Dr X. In the context of both sexuality and the findings of sexual misconduct, that is the critical matter”

The restrictions sought by the Claimant are not necessary. The Court can adopt measures that will properly protect the confidential information during the pendency of the proceedings that will involve significantly fewer derogations from open justice than the comprehensive restrictions sought by the Claimant. He argues that the detail of Document X and the MHPS outcome letter could be protected by appropriate measures in the proceedings. In open court, the public and media would know that the Claimant (who could be identified) was seeking to prevent the disclosure of the documents by the Defendant (which could also be identified) to former patients.

The situation confronting the Court is very different from the typical breach of confidence/breach of privacy claim because of the extent of the information that is already in the public domain. The following information has already been published, in which both the Claimant and the Defendant are named, and which is still available in the public domain:

The amount of material already in the public domain would mean that the reporting restriction sought by the Claimant would effectively curtail any reporting of the case for fear that publication of details of the case would lead to the jigsaw identification of the Claimant by reason of the pre-existing media coverage. If that is right, then the Claimant is effectively asking the Court to hear and determine his claim in circumstances of complete anonymity with, effectively, a ban on any meaningful reporting of the case. The Claimant’s evidence comes nowhere near justifying such a course.

The Claimant’s evidence as to the alleged threat to his Article 2 rights is very far from being “clear and cogent”. Mr Hyam QC referred and relied upon the points made by the Defendant’s solicitors in their letter of 12 July 2022 (see [42] above).

As regards Article 8, with proper measures being adopted, the interference with the Claimant’s Article 8 rights would be limited, but the restrictions he sought would have a very significant impact on open justice. There is a significant public interest in (a) the fact that the Claimant is bringing these proceedings to prevent the Defendant from making the proposed disclosures to former patients of the Claimant; and (b) that he has sought anonymity in these proceedings. The reporting restrictions sought by the Claimant would effectively curtail reporting of what is a matter of significant public interest.

The Claimant has made no attempt to self-harm. He was not currently taking any medication for depression (§10.14). Dr Vandenabeele noted that “the information within [the Claimant’s medical notes] did not corroborate the history of suicidal thinking” (§13.5).

Historically, the Claimant had suicidal thoughts for about 2 weeks in 2017 (§10.7) and thereafter had further “fleeting suicidal thoughts” when he felt that he was being a ‘burden’ (§10.12).

When he met Dr Vandenabeele, he presented as having been “troubled by suicidal thinking”, but that “currently he does not harbour any active plans to harm himself or commit suicide”. The Claimant himself identified several factors to Dr Vandenabeele which operate to protect him from self-harm (§12.5).

Dr Vandenabeele’s conclusion was that the Claimant was suffering from a depressive disorder that is of a moderate severity with “bouts of suicidal thinking” (§13.3).

The conclusion that the Claimant had a “past history of suicidal thinking” was based solely on the information provided by the Claimant and was not, as Dr Vandenabeele had noted, corroborated by the GP notes that he had seen. The “re-emergence” of suicidal thoughts was, however, “not associated with active/acute suicidal plans” and the Claimant had described the presence of “different protective factors” (§§13.15 and 13.17).

The final conclusion is that “in the event of his mental health further deteriorating, as a result of his anonymity not being preserved, then I consider there to be a significant risk of there being a worsening in his suicidal thinking to such a degree that the identified protective factors may no longer be such as to maintain his safety” (§13.17). This conclusion is unexplained as to why a refusal of anonymity in the High Court proceedings could cause such a deterioration in the Claimant’s mental health and is significantly at variance both with the historic and current presentation of the Claimant as described in the Report. Without an explanation, I cannot attach much weight to it.

An element of confusion is introduced by his reference to “the current proceedings”. Although it appears in the later paragraphs of his Report that he is probably referring to the High Court proceedings, the earlier paragraphs tend to suggest that it is a reference to the GMC proceedings (see §6.3).

Further, Dr Vandenabeele seems not to have discussed or considered why or how an anonymity order would assist the Claimant. It is reasonably clear from the Report (e.g. §§10.7-10.10, 10.13), that, historically, the Claimant regards the major cause of stress and anxiety (and the stimulus for his suicidal thoughts) to have been media coverage.

The second question posed to Dr Vandenabeele asked about the effect of publicity surrounding the proceedings if they were not anonymised or subject to reporting restrictions. Dr Vandenabeele stated that the Claimant “considers the lack of anonymity and the likelihood of further media attention to be the most severe of these stressors. He also attributed the emergence of suicidal thinking (current and historically) to the possibility of lack of anonymity in these proceedings” (§13.8). This conclusion (and that expressed in §§13.9 and 13.17) needed some further explanation. The past media coverage has always identified and named the Claimant. The historic suicidal thoughts (which pre-date substantially “these proceedings”) are linked to this media coverage. If the current suicidal thoughts are said to be linked to “the possibility of lack of anonymity” in the proceedings, then that needed explanation, particularly when, as recently as the end of May 2022, there had been a further burst of media publicity about the Claimant, including in particular The Guardian article (to which Dr Vandenabeele does not refer). Nowhere in his report does Dr Vandenabeele either explain the Claimant’s understanding of what “these proceedings” involve (if that is a reference to the High Court claim) and why, therefore, a refusal to grant anonymity is likely to result in “a further deterioration in [the Claimant’s] mood and anxiety with a likely increase in his suicidal thinking” (§13.9 and also §13.17).

In answer to the fourth and sixth questions, Dr Vandenabeele states that, if the Court were to refuse to grant anonymity or impose reporting restrictions, then “it is more likely that not that this would be associated with a significant worsening of [the Claimant’s] depressive disorder” (§13.11 and similar in §13.17). No explanation is provided for this conclusion. One is needed because most of the concerns expressed by the Claimant in his witness statement (and in his meeting with Dr Vandenabeele) related primarily to the threat of disclosure of the two documents. Dr Vandenabeele appears to have made no attempt to identify with the Claimant the source of his anxiety, whether it is disclosure of the documents or publicity resulting from the proceedings. If it is the latter, what is it of this publicity which is said to present a risk of aggravating his depressive disorder, having regard to the extent to which he has already been the subject of extensive media reporting.