Test case on public inquiries has implications for social services

In R (on behalf of Patricia Howard) v secretary of state for the
health department (8 October 2001), Ms Howard sought permission to
apply for judicial review of the health secretary’s refusal to hold
the “Ayling Inquiry” in public, and to exclude the press.

The case has implications for inquiries into social services
cases.

Dr Ayling was a GP in the Folkestone area who, over a period of
many years, had complaints made against him by female patients that
he had insisted on unnecessary intimate examinations. In December
2000 he was convicted of 13 counts of indecent assault and is
serving a four-year prison sentence. The General Medical Council
described his behaviour as “wicked”.

The department of health announced an inquiry in private (with
the publication of a report at the end of the inquiry) into whether
changes to procedures needed to be made in the complaints process
as a result of the case. The inquiry was tasked with documenting a
chronology of the complaints against Dr Ayling.

Ms Howard and many other women who alleged they were victims of
Dr Ayling wanted the inquiry to be held in public and for the press
to have access, and that the refusal to allow this was a breach of
their rights under article 10 of the European Convention on Human
Rights to “receive and impart information”. Ms Howard relies on the
precedent in the Shipman Inquiry judicial review (R (on the
application of Wagstaff) v secretary of state for health (2000),
where the court held that there was a “presumption” under article
10 that there would be a public inquiry.

Despite strong opposition from the secretary of state, Mr
Justice Stanley Burnton granted permission to apply for judicial
review, and the full hearing of the case will take place next
January.

The case is of importance to any decision to hold an inquiry in
private and applies to inquiries into social services’ matters as
well as those of the health service. Clearly, the more serious the
allegations made the more harder it will be for the authorities to
justify not giving access to the press and public to an inquiry.
The full hearing should define more clearly where the line should
be drawn.

Stephen Cragg

Doughty Street Chambers