The Judge: HHJ Denyer QC
Mr Leonard: Dr Stephenson’s Barrister
Miss Holme: NHS England’s Barrister
Mr Leonard: One might be forgiven for asking, if this were entirely innocent, why it was that the PCT did not choose to phone Dr Stephenson and say, “If your partner Dr Bower, who is attending a performance review hearing in due course, cannot work because of his actions, in other words we think he is at fault, what is your view about the future?” Yet no such conversation was taking place.
Mr Leonard: We know that the draft document had reference to what was described as “unwitnessed conversations” with Dr Bower and yet when the document is supplied to Dr Stephenson for the purposes of the hearing, those passages have been removed.
Mr Leonard: Drs Wyatt and Hayter in short found nothing about the [Bow Surgery’s] QOF figures that was particularly unusual or extraordinary.
The Judge: [Judge] Burton J thought it [Devon PCT’s investigation etc.] was a shambles.
Mr Leonard: He did.
The Judge: Certainly, anyone reading that rather pathetic approach by them that, “He cannot appeal because we have now withdrawn our objection”... I quite understand Burton J’s view that this, to use a word which was not then in vogue, was a right omnishambles.
Mr Leonard: We say that because Dr Lockerbie probably was not properly trained and, moreover, did not take proper notes as the documents suggest he should do.
Mr Leonard: What you may be surprised to hear is that, after this, this practice was put on sale, effectively, to bidders in the year that followed. Contrary to it being described as a failing practice or a problematic practice, it was described as completely the opposite with low prevalence figures and a success story, as it were.
Mr Leonard: One does not like to use flowery language like “breach of natural justice” and the rest of it but my lord can see the way in which, from a pure disclosure point of view, it would be grossly unfair for somebody to be giving evidence about a doctor in Dr Stephenson’s position, saying, “Well, I have seen all this material which is very detrimental to him but he is not allowed to see it.” We say that was and remains quite, quite wrong.
The Judge: Yes? Miss Holme, you must bear this in mind, as clearly Burton J felt, and I think any fair minded observer would feel: the way your clients handled all this back in 2007 and 2008 was a disgrace, a shambles, a denial of natural justice.
Miss Holme: [referring to a direction from the Strategic Health Authority that Devon PCT must undertake an audit of the whole disciplinary process] The internal audit, I have to admit that I cannot from the evidence see whether or not such an internal audit exists.
The Judge: Well, it so incensed Burton J that he was urging the other side in the shape of Mr Leonard to apply for indemnity costs and it was only a sense of decency which said, “Unfortunately, I am tried by a contract” that stopped him resisting.
Mr Leonard: My learned friend referred to being able to challenge the reports of Lockerbie or Wyatt and Hayter. I simply reiterate that no witness was ever made available for that purpose at any of the hearings that the PCT conducted into Dr Stephenson’s position. I know you have already, if I might say so, with vigour criticised the way in which this matter unfolded over time on the part of the PCT. We would say if you start to use words like “disgrace”, “shambles” and “a breach of natural justice” that may be one explanation but it is not a particularly significant leap to discern something more sinister as a consequence of the disclosure we suggest is appropriate.
Mr Leonard: One of the difficulties here, and it is interesting, as is the way of these things, is that the one additional head of documents relevant in the amended draft order is the one that we would say would shine a light on that issue. In other words, is this incompetence? One hesitates to use the—
The Judge: It is the cock-up theory of history.
Mr Leonard: Exactly.
The Judge: Or conspiracy, yes.
Mr Leonard: … the key to understanding this is the difference between the way in which the applicant’s practice was being described or asserted in late 2007/early 2008 as compared with the way in which the same practice was advertised in July 2009 once the appellant’s position there has ended. That is done on the basis that the PCT possessed information about favourable outcomes and that, therefore, that should have been disclosed to balance the position prior to 4th March.
The Judge: Yes. That seems to me to be a jolly good jury point if you have a case, rather than going to the existence of the case. Do you follow me?
The Judge: Bower is crucial, as it seems to me, because it was he who set the ball rolling.
The Judge: Dr Lockerbie. He effectively was appointed as an investigator by and on behalf of the PCT. There are certain strangenesses about his position….
The Judge: We come to (e) and here, undoubtedly, something strange was happening on 4th March. .... I can understand Dr Stephenson’s suspicions about this.
The Judge: I will not say I never knew discovery could be so interesting but...