On 21st February 2007 the Government published a set of White Papers that set out landmark proposals for the reform of the regulation of health professionals in the United Kingdom.
The Department of Health website (www.dh.gov.uk) explains that
“the need for reform to sustain confidence in regulation of healthcare professionals has been underlined by the findings of a number of high profile inquiries into doctors who have harmed their patients”. The Ayling Inquiry is cited alongside those into Shipman, Kerr-Haslam, and Neale. The Department of Health website goes on to say that the country
“needs a system in which patients, the public and health (sic) can have confidence that the regulators of healthcare professionals do so in a way that is fair to both patients and health professionals".
In an initial response to the White Paper, the British Medical Association (www.bma.org.uk) warns that with a state-owned NHS, a monopoly employer and an appointed regulatory body also controlled by government, doctors could be compromised in their ability to use their clinical independence to get the best treatment for their individual patients. The BMA’s concern is that under the White Paper proposals, a doctor’s ability to continue working in the best interest of their patients, without fear of falling foul of political imperatives, will be jeopardised.
The BMA also believes that with such serious consequences as removing a doctor from the GMC Register, which entails not only the doctor losing their job but their entire way of earning a living, it cannot be right to switch to a lesser burden of proof in fitness to practice hearings and rely on a mere balance of probabilities.
Clifford Ayling
Clifford Ayling started his career as a doctor in the early 1960’s and was struck off the Medical Register in June 2001 after having been accused of indecently assaulting patients.
Those who argue there is no need for concern over plans to lower the standard of proof in cases of complaints against doctors might like to take a closer look at exactly what happened in the Clifford Ayling case.
The case was sparked off by allegations of indecent assault made in 1998 to the local Health Authority who failed to investigate, the case went from criminal trial to claims for compensation to modified form of private inquiry to published government report. All this was covered by sensationalist media reporting fuelled by misleading information provided by a high profile solicitor with connections in high places who was acting for the purported victims.
No smoke without fire, you say? Well, let us look at the ashes now that the fire has gone out.
The first related complaint
On 3rd March 1998 the East Kent Health Authority received a complaint from Woman K. She claimed her GP, Clifford Ayling, had forced
“his entire hand into my vagina”and she also claimed the GP’s
“genitals brushed against the back of my hand and I noticed he had an erection”. Instead of investigating the complaint which contained the highly improbable allegation of the doctor having put his hand into the patient’s vagina during a routine internal examination, the East Kent Health Authority wrote directly to the General Medical Council on 11th March 1998 stating that it felt
“it would be inappropriate for this to be handled through the usual NHS Complaints Procedure”.
Throughout the whole Ayling saga, there is no proof of either the Health Authority or the GMC having specifically investigated the contents of Woman K’s complaint. However, in a report dated 2nd June 2000 prepared by an expert witness appointed by the Prosecution at Clifford Ayling’s criminal trial, Dr S explained that it was
“difficult to see” how the doctor’s entire hand could be forced into the vagina. When cross–examined during the criminal trial, Woman K added that
“No-one could see a hand, if they are laying down”.
Woman K then went on to say in the witness box that she had not seen the doctor have an erection because it was not her
“job to go to the doctor’s surgery and look at his penis”. However, she did offer the explanation that she could tell the difference between feeling a penis and
“a keyring”. Of note was the fact that only the Prosecution and Defence teams were aware at this point of the Defendant’s argument that he always had keyrings in his pockets. The ensuing exchange between Woman K and the cross-examiner suggested strongly that information obtained by the Police during questioning of Clifford Ayling had been leaked to Prosecution witnesses.
During the Police investigation into the allegations about Clifford Ayling it transpired that prior to making her complaint to the health
authority in March 1998, Woman K had bumped into another patient in 1997, had talked about not liking the doctor and had then asked
“why don’t you complain?”. When the case had gone public, this other patient tried 3 or 4 times to go to the Police but
“the Police were not interested”. This other patient then told the Defence solicitors that a Policeman eventually called several times asking her to make a statement but he was so insistent on what the patient should include in the statement that
“she decided not to make a statement after all as she felt that it would be used against Dr Ayling rather than for him which was not her intention at all”.
Thwarting the Health Authority’s plans
By early 1998, at the time the East Kent Health Authority received the complaint by Woman K, the local media had for months been carrying articles about Health Authority plans to close the local GP ward, cut beds for the elderly, move acute services away from the Royal Victoria Hospital in Folkestone and transfer in a mental health unit. Clifford Ayling was at the time Chairman of the GP Ward User’s Committee and an active member of the Locality Commissioning Team. He also regularly attended Division meetings, chaired by the local GP Gary Calver, during which issues of importance to the health service in the district were discussed. Strangely enough, the evidence of Dr Calver as reported in the Ayling Inquiry Report (p. 97) gives the impression that he had little contact with Clifford Ayling and, although Chairman of the South East Kent GP Division, only had
“an opportunity to talk to Ayling” at the local office of the on-call service.
Clifford Ayling’s recollection is that the GPs who attended Division meetings tended to be involved with politics. This is borne out by a number of articles and letters that appeared in the
Folkestone Herald during this time, with regular input specifically from Dr Calver and other local GPs who formed a group to lobby for the needs of Shepway residents. On 5th March 1998, for example, the newspaper published a letter from Dr Calver and the three other GPs in his surgery which said
“Local communities and their GPs have been betrayed. Mr Outhwaite [Chief Executive] of the East Kent Health Authority spoke of projections not an intention to cut beds until alternatives are in place and proven to work. Either he doesn’t know what has already happened at the Royal Victoria Hospital, Folkestone or he isn’t sincere in that. It is being closed piecemeal and relentlessly against the wishes of the GPs and nurses. GPs in Shepway have formed a group to lobby for the needs of Shepway residents...Maybe we can then see if the Health Authority means what it says and NHS trusts are consulting not dictating”.
The local MP Michael Howard was also against the proposals to reduce capacity at the Royal Victoria Hospital and to move a mental health unit from Ashford to Folkestone. In an article on 5th February 1998 Mr Howard was reported as saying
“I’ll do all I can to oppose the Arundel Unit’s move here. I think it’s a wholly inappropriate place for a psychiatric unit, caring for the mentally ill, because it’s slap bang in the middle of town and very close to quite a few schools”. Mr Howard was backed up by former Conservative Counsellor Mr Watkins who said there was no doubt that acute psychiatric units on general hospital sites failed abysmally. A further article on 19th February 1998 reported that during a parliamentary debate on the future of health services in East Kent Mr Howard said he was
“at a loss to understand the logic behind these proposals”.
Then on 26th March 1998 Clifford Ayling featured in an article which supported the arguments of the local GP lobby and Mr Howard. The article was based on a letter that Clifford Ayling had sent to the Community Health Council (the health watchdog) and which had been presented at one of its Open Meetings. The article was presented by the newspaper as a blistering attack on the Health Authority plan to transfer the Arundel psychiatric unit from Ashford to Folkestone.
In his column on 2nd April 1998 Mr Howard repeated that he was opposed to the relocation of the Arundel Unit for the Mentally Ill and then on 16th April 1998 a letter from Clifford Ayling appeared in the newspaper in which he referred to a further letter he had addressed to the Community Health Council. He quoted correspondence with Professor Cox, Dean of the Royal College of Psychiatrists, which raised the issue of the lack of adequate facilities in Folkestone for the training of junior staff. Discussions about the Health Authority’s planned changes to the role of hospitals in south Kent continued throughout 1998 but the plan to transfer the Arundel Unit to Folkestone was dropped.
The Health Authority mounts a case against Clifford Ayling
In the last week of May 1998, the East Kent Health Authority received a complaint from Patient N about a rash caused by a prescription error and asking to be refunded the £48.26 that she had spent on medication. Patient N had sent a copy of her letter both to the Health Authority and Clifford Ayling and had told the latter that she would not take the matter any further. However, in a statement for the Health Authority signed on 14th August 1998 Patient N explained that
“The Health Authority contacted me to say that they were taking disciplinary action against Dr Ayling over this matter and would need me to be a witness. Although I had said to Dr Ayling that I would not take the matter further I…agreed to act as a witness”.
The Health Authority referred Patient N’s complaint to the Primary Care Agency and informed Clifford Ayling on 31st July 1998. At this date neither Clifford Ayling nor the Primary Care Agency were informed that the Health Authority had been in possession of two complaints of indecent assault (that of Woman K and that of one of her friends, Woman AE) for a period of over four months. On 5th August 1998 the Health Authority asked the Primary Care Agency for an extension and was to send Clifford Ayling its statement of case no later than 11 September 1998.
The Health Authority’s case for Patient N was that as set out in the draft statement of complaint prepared on 4th November 1998 for the NHS Tribunal. It was based on an allergic reaction developed by Patient N to penicillin that had been prescribed by Clifford Ayling. There was no suggestion that Patient N had been the subject of indecent assault.
On Monday 6th September 1998, just before the deadline of 11th September 1998 for the Health Authority to serve its statement of complaint on the Primary Care Agency, an accountant working for Medway Health Authority (Woman W) and who was not on Clifford Ayling’s list rang the surgery in the morning and insisted on a late appointment for the same day because of a chest infection. She was apparently still registered with a doctor in Medway and was still working there but had moved to Folkestone to live with her new boyfriend. As Woman W was not registered with Clifford Ayling she had a new patient check and obtained the prescription she wanted. However, it would seem that Woman W did not collect her prescription but the very next morning made a formal complaint to the Health Authority. She then rapidly made a Police statement on 16th September 1998 at which point she handed the Police the prescription form which she had insisted on obtaining from Clifford Ayling a week earlier in order to relieve her chest infection.
Then towards the end of October 1998 Woman V transferred from Clifford Ayling’s practice to the neighbouring White House Surgery and was interviewed by Dr Anderson who was noting the names of patients who were dissatisfied for some reason with Clifford Ayling. By the beginning of November 1998 Dr Anderson had collected the names of a sufficient number of new and former patients who might be willing to make allegations, to contact the East Kent Health Authority and also his former colleague Dr Pickering. It would seem from statements that Dr Anderson actually spent Saturday 7th November 1998 actively trawling patients and asking them if they were willing to make allegations against Clifford Ayling. The next day, on Sunday 8th November 1998, Dr Anderson’s new patient Woman V made a Police statement and on Monday 9th November his former colleague Dr Pickering met with a representative of the East Kent Health Authority. Then on 10th November 1998 both Dr Pickering and Dr Anderson made statements for the Health Authority on the grounds that they were in a position to contact women who had expressed dissatisfaction with Clifford Ayling to seek permission to pass on their details.
On that same day, 10th November 1998, the Chief Executive of the East Kent Health Authority, Mark Outhwaite, sent a statement of complaint to the NHS Tribunal on the basis of allegations made by the women K, AE, W, V and N. On Wednesday 11th November 1998 Clifford Ayling was arrested just before his afternoon surgery.
On Friday 20th November 1998 the Secretary of the Health Authority (Cathy Bolton) met DC Beautridge of Folkestone Police Station. Right after the weekend on Monday 23rd November Woman N, whose complaint had related solely to dissatisfaction with the erroneous treatment of a rash, ended up making a Police statement for indecent assault. Woman N decided later to drop her allegations but she participated in the subsequent Inquiry into the Ayling case in 2003 and is alluded to in connection with a reaction to antibiotics on page 58 of the Ayling Report. Patient N’s statement to the Ayling Inquiry is known to have included a description of how the Police persuaded her that she had been indecently assaulted by Clifford Ayling, but there is nothing in the Report’s recommendations on how to deal with outside pressures on individual patients by the Police or solicitors who specialise in group actions to make unfounded allegations of a kind other than the treatment complained of in an earlier complaints.
Shortly after Clifford Ayling’s arrest the Health Authority offered him retirement on full pay for two years. Clifford Ayling refused on the ground that he had done nothing wrong. He obtained bail conditions that allowed him to continue working with a chaperone present for all examinations of female patients. This was clearly unexpected by the Health Authority whom, it would seem in the summer of 1998, had informed the partners of the surgery that was to merge with Clifford Ayling’s surgery on 1st January 1999 that he
“would not be practising for very long – six months at most”.
However, having turned the case over to the Police and invited women to come forward on the local news, the Health Authority was no longer in a position to control the situation.
Although the application that the Health Authority made to the NHS Tribunal included four allegations of indecent assault, it is unlikely that it would have led to the suspension of Clifford Ayling. This is apparent from the contents of the first paragraph of a letter from the Secretary to the Health Authority to DC Beautridge on 30th December 1998 in which she wrote:
"I thought it would be helpful if I updated you regarding the health Authority's submission to the NHS Tribunal for Dr. Ayling's Interim Suspension. We had a Hearing date on the 17th December. On the day Dr. Ayling's solicitors requested an adjournment and on our Counsel's advice we did not object. Our counsel has advised that our submission needs to be a lot more robust and has suggested that, as the hearing has been adjourned, we re-submit our case at a later date."
The Police Investigation
In the meantime, the Police had embarked on a juicy romp as titillating accounts of alleged incidents incited them to hunt for more. The explicit aim, committed to paper by one Police officer, was to
“hang the good doctor” and the excitement was such that important identified witnesses such as nurse chaperones (yes,
nurse chaperones) were overlooked.
For example, the Police decided on 21st November 1998 not to proceed with the action of contacting Clifford Ayling’s Practice Nurse to ascertain what information she had. The vague reason noted for this on the action form was that
“any complainant has had the opportunity to complain”. On 24th November 1998 the Police took a statement from the chaperone who had been present in the consultation when one woman who made late allegations told the Police she had shouted to the doctor to stop what she claimed to have been an excruciatingly painful examination. The chaperone’s statement said nothing particular had happened and the patient had been relaxed and chatty throughout the examination. The Prosecution did not disclose the chaperone’s statement to the Defence team until the latter asked for it, having noted a reference to its existence in documentation provided by the Crown Prosecution Service.
When subsequently interviewed by Clifford Ayling’s Defence team, the same chaperone said
“[this complainant] is a jolly lady…quite a confident lady used to dealing with the public…very talkative and not the sort of person likely to tolerate being ill used, and was laughing and joking all the time…I believe the whole examination lasted less than five minutes...I do not remember [this complainant] saying anything at all about the examination hurting. I am absolutely sure that if she had behaved in the way she has described I would remember it distinctly. As it is I cannot remember her appearing upset in any way or saying anything that suggested she was upset and I have a clear recollection of her chatting away throughout the whole consultation…I am absolutely certain that [this complainant] did not ask Dr Ayling to stop the examination at any time and I believe I would definitely remember that if she had. Indeed I would have been concerned. [This complainant]’s account of this consultation is so different to my recollection of it that it makes me wonder whether she is talking about the same occasion. However [this complainant] confirms that she was only chaperoned the once and I believe therefore that she must be referring to the same occasion as I remember”.
On 25th November 1998, it was noted on a Police action sheet to
“Interview staff at Dr Ayling’s surgery re complaints received by them from victims. Find out who has been present during examinations by Dr Ayling”. For some reason, the investigating officer did not go ahead with the action and noted exactly three minutes later on the same action sheet
“Following discussion with Miss C C[rown] P[rosecution] S[ervice], this will not be done”. No other reason was noted and neither the Police nor the Health Authority attempted to obtain statements from surgery staff. Only Penny Jedd, the district midwife attached to Clifford Ayling’s surgery who also happened to be the wife of one of the doctors at the neighbouring White House Surgery, was interviewed.
Despite her connection with the White House Surgery doctors who were instrumental in aiding the Health Authority to mount their case against Clifford Ayling, and despite the fact that she did not get on particularly well with him, Penny Jedd provided a statement both for the Prosecution and the Defence about her contact with Clifford Ayling and his patients. She found him old-fashioned and did not always think his examinations were appropriate but she
“never had the impression that there was anything indecent in his approach”.
Penny Jedd was also referred to on page 92 of the Ayling Inquiry Report as she attended the Inquiry and
“steadfastly denied having discussed issues of sexualised behaviour” with her supervisor during the relevant period. However, despite having said nothing to either the Police or the Defence solicitors prior to Clifford Ayling’s criminal trial, the Ayling Report claims Penny Jedd told the Ayling Inquiry in 2003 that in 1997 a patient had told her she had felt Clifford Ayling’s erect penis against her thigh during an examination. It was further claimed in the Ayling Report that the patient also told Penny Jedd she would deny having complained if the matter was reported. The lateness of this allegation by Penny Jedd, its inconsistency with her earlier statements, the lack of detail or patient identification and its usefulness to the Inquiry’s agenda is flabbergasting. If this is an indication of just how low the standard of acceptable evidence is set to be in the future when allegations of indecent assault are made against health professionals, it is difficult to see how the health professionals involved will be fairly treated.
Prior to Clifford Ayling’s criminal trial a group of supportive patients set up a petition that was signed by over 700 people, including one young patient and her boyfriend. This patient was a regular defaulter and when pregnant a health visitor was asked to go round and see her to enquire why she was not keeping her appointments. The health visitor apparently found this patient’s boyfriend very intimidating, she was apparently not allowed into the house and had to stand on the doorstep to explain that as the patient was pregnant she needed to keep appointments. The patient changed surgery in September 1999 after moving to Dover.
After Clifford Ayling’s conviction, this former patient became a client of the solicitor Sarah Harman and was granted legal aid on 1st March 2001 in order to pursue a claim for compensation as part of the group action that sued Clifford Ayling in 2002. The woman appears to have made a Police statement on 19th April 2001, shortly after becoming a client of Sarah Harman, in which she claimed to been indecently assaulted by Clifford Ayling in 1997 and in which she also claimed to have complained to the midwife Penny Jedd. However, neither the solicitor nor her client informed the court in February 2002 of the existence of the Police statement or the alleged complaint to the midwife Penny Jedd, and no copy of the Poçlice statement was referred to or provided in the documentation produced for the Court. The woman indeed specifically said in her statement dated 25th January 2002 provided for the civil proceedings that a year earlier (in 2001) she
“heard that the Defendant was being prosecuted for sexually assaulting some of his female patients. I would like to make it clear that I was not involved in the prosecution of the Defendant in December 2000 because at that time, I did not realise that I might also have been assaulted”. This was obviously incoherent with the earlier claim in her Police statement that she had complained to Penny Jedd, but not with the contents of the trawling publicity in the local press in January 2001 that invited women who had made complaints about Clifford Ayling that were not acted upon to contact the firm Harman & Harman.
The documents provided to the Court in February 2002 however, did show this former patient had told the expert psychiatrist instructed by her solicitor that in February 1998 (i.e. during her time as a patient of Clifford Ayling) the Police had raided her flat on the basis of wrong information and she had been
“thrown to the ground”. She herself kicked one of the Policemen and was then grabbed by four Policemen. She complained but was charged for assaulting the Policeman and fined. To use the term applied by the chaperone referred to above, it is difficult to believe that this former patient might have been
the sort of person likely to tolerate being ill used.
Nevertheless, in April 2002 this woman obtained an order for £19,662.50 compensation to be paid out of Clifford Ayling’s personal assets.
On 2nd December 2002, the same woman than went on to make a statement for the Ayling Inquiry in which she reverted to her previous (but undisclosed) claim to have complained to the midwife Penny Jedd.
So, for the purposes of civil proceedings aimed at obtaining compensation from Clifford Ayling, the former patient claimed she had not realised she was being assaulted by Clifford Ayling throughout her time as a patient with him and this explained the lateness of her allegations. However, for the purposes of the Ayling Inquiry, the same former patient claimed to have made a contemporaneous complaint to her midwife Penny Jedd and therefore positioned herself as a woman who had made a complaint that had not been acted upon. The making of both statements was handled by the same solicitor, Sarah Harman, whose firm had placed their advert in the local press as early as 26th January 2001 which said:
“We are now representing former patients of Dr Ayling, the Folkestone GP who was recently convicted, in December 2000, of indecently assaulting women at his surgery. We would like to hear from further victims and anyone else who may be able to assist with information, particularly details of any complaints made previously which were not acted upon”.
One can see from this case how unsuspecting health professionals may have found themselves ambushed at the Inquiry by various parties who had an interest in persuading them to change their initial version of events. Despite Sarah Harman’s public calls for transparency, her firm (Harman & Harman) objected to the Inquiry referring to certain documents relating to their clients. Accordingly, material sworn by Sarah Harman concerning the former patient referred to above was returned by the Inquiry on 19th May 2003 to the person who had provided it.
In the two years preceding Clifford Ayling’s criminal trial, the Crown Prosecution Service revised the indictment a number of times and at the pre-trial severance meeting on 2nd October 2000, just two weeks before the trial began, there was still a list of outstanding documentation that included 20 undisclosed items which had previously been requested by the Defence team.
At this meeting to discuss severance the indictment was again amended and the Prosecution informed the Court that, amongst others, it was not proceeding with the allegations of Woman P. The Prosecution proposed to let 3 counts concerning her lie on the Court file and the Defence Counsel gave leave. However, over a year after Clifford Ayling’s conviction, in February 2002, it transpired that Woman P had made a second Police statement taken by DC Beautridge on 14th September 2000, exactly a fortnight before the severance hearing on 2nd October 2000. This statement, never disclosed to the Defence by the Prosecution, explained how it had been suggested to Woman P by the firm of solicitors Harman & Harman that she make a Police complaint about Clifford Ayling. A copy of the statement was produced among documentation provided at the civil proceedings for compensation litigated by the solicitor Sarah Harman in 2002. The Bill of Costs produced by the firm Harman & Harman after the civil proceedings also showed that Woman P had entered into a conditional fee arrangement with the firm on 3rd April 2000, nearly six months before Clifford Ayling’s criminal trial had even begun, yet her Police statement in September 2000 showed clearly that she had been dissatisfied with the hospital treatment she had received, not the treatment she had had from her GP. Woman P said in this additional statement she
“was surprised initially, when [the solicitor] advised me to go to the Police about Dr Ayling, because that was not the reason why I went to see her”.
The lack of disclosure by the Prosecution led the Defence solicitor to inform Clifford Ayling on 3rd October 2000 that
“the Crown have decided not to proceed in relation to [Woman P] and I imagine that she has got cold feet about proceeding to trial”. The contents of Woman P’s second statement, however, show that the Crown wilfully withheld evidence that was extremely damaging to its case against Clifford Ayling and in doing so protected the firm Harman & Harman from exposure of its trawling methods.
The Criminal Trial
It was indicated initially by the Prosecution that the criminal trial would last about three weeks. In the event it took over five weeks just to hear the prosecution witnesses and cross-examine the defendant. One month into the trial, on 20th November 2000, one of the Defence team had a conversation with a person at the Medical Defence Union (MDU) of which Clifford Ayling was a member. Points discussed were the fact that the judge and the jury were making slow progress, that the Crown did not want to lose, that a prolonged trial would cost the MDU more, and that junior counsel for the Defence could not be released if the trial went on for too long. When Clifford Ayling had finished giving evidence the Defence team, whose services were paid for by the Medical Defence Union, told him they would not be calling waiting defence witnesses.
The jury therefore reached its slight majority guilty verdict based on what was patently a one-sided case. Over half of the supporting witnesses for the Prosecution were friends and family of the complainants (chaperones having been discarded from the Police investigation within weeks of Clifford Ayling’s arrest in November 1998), and the whole thing was wrapped up just in time for Christmas.
The trial transcript shows that when the Defence barrister addressed the jury at the start of his closing speech on 29th November 2000 the Court tape suddenly became impossible to transcribe because
“the defence barrister was on the opposite side of the court room, and his voice has not come out on the tape sufficiently well”. Then on the following day of the Defence closing speech the transcript says after thirty pages
“There is now a gap in the transcription of [the defence barrister]’s closing speech owing to a malfunction of the tape recorder”. Day three of the Defence closing speech on 4th December 2000 was simply
“not taped” (no particular reason is indicated) but the last part of the Defence closing speech on 5th December 2000 was transcribed. Needless to say, the taping of the Prosecution barrister’s closing speech suffered no such hitches.
Struck off
On 12th January 2001 the GMC made an interim order for suspension of registration and on 21st June 2001 the GMC’s Professional Conduct Committee struck Clifford Ayling off the Register. The GMC was represented by the same barrister who had acted for the Prosecution at Clifford Ayling’s criminal trial, and there appears to have been no independent investigation by the GMC, with its medical expertise, to look into the plausibility of any of the complaints made known to it. Clifford Ayling was present at the hearing but not represented because the MDU, having apparently spent more than had been anticipated for the trial, refused to assist him further and by then, his personal assets had already been frozen in proceedings litigated by the solicitor Sarah Harman.
Civil proceedings for Compensation
Once Clifford Ayling was convicted, a real beanfeast began. Assets were frozen, stories were sold to the press, women suddenly realised they must have been abused in the past and joined first the group action against Clifford Ayling and then the anonymous free-for-all clamouring for settlements from the Health Authority. One woman (Woman U) who woke up late and got a sympathetic hearing from the Police had never even been a patient of Clifford Ayling. A number of requests were made by Clifford Ayling to the new Kent & Medway Strategic Health Authority for information about this and on 5th May 2005 the Corporate Services Manager confirmed that
“the SHA does not hold any information as to whether [Woman U] was on your GP list or not”.
Civil hearings for compensation were instigated by the high profile solicitor Sarah Harman and Clifford Ayling was denied legal representation because, acting on behalf of her clients, she refused to allow the release of sufficient assets to pay the firm of solicitors that had been instructed. There was then an uproar in the media because Clifford Ayling had to cross-examine her clients himself.
On 11th April 2002 Sarah Harman’s clients were awarded a total of £256,250 and bankruptcy ensued. The claimants hoped to obtain Clifford Ayling’s NHS pension on top of the assets that were taken and their solicitor even went as far as to suggest that medical defence organisations should also pay damages to her clients.
Just over two years later, in September 2004, an anonymous group of 31 women represented by Sarah Harman accepted an out of court settlement of £350,000 from the Kent and Medway Strategic Health Authority on the day the Ayling Inquiry Report was published. It was reported that the claimants received sums of up to £20,000 each. In the group of women who accompanied Sarah Harman at her press conference when this settlement was announced were some of the women who had already brought civil proceedings for damages against Clifford Ayling in 2002. The Particulars of Claim produced by the firm Harman & Harman for the claims brought against the Health Authority in 2004 contained ‘sexed up’ versions of earlier allegations and included new claims that their clients had complained in the past to employees of the Health Authority.
Also amongst the group at Sarah Harman’s press conference in September 2004 was Woman M, whose allegations made after Clifford Ayling’s arrest in November 1998 led to his acquittal at the criminal trial. Woman M also appeared in Sarah Harman’s Canterbury offices in a television programme presented by Victoria McDonald on Channel Four in March 2004 and was one of the claimants against the Health Authority. The health Authority therefore paid out public money to a woman whose allegations had been disbelieved by a jury at a criminal trial. Woman M waived anonymity in the
Daily Mail on 10th September 2004 in a great display of impunity, posing as a victim and claiming to have been
“left sitting there stark naked on the couch”.
Sarah Harman – solicitor for the claimants
Sarah Harman’s firm’s website carries an article from the
Observer dated 14th May 2005 in which she is quoted as saying
“People sometimes ask me: how can you sue the NHS when it is so in need of funds? I have the greatest possible respect for dedicated medical professionals, but if no one questions things when they go wrong how will anything ever get better?”. If, as would appear to be the case, Sarah Harman takes on clients whose cases have no merit whatsoever to sue the Health Authority, surely it is time to start asking questions on behalf of the innocent patients who are being deprived of medical services as resources are drained away to placate large threatening groups of claimants whose solicitor refuses to have their alleged grievances properly scrutinised in public. Despite media calls for a public inquiry fed by Sarah Harman and her clients, Sarah Harman's firm objected to the Inquiry seeing documentation that had emanated from her firm in the civil litigation against Clifford Ayling that arose from the same allegations as those that were canvassed by the Inquiry.
In December 2005 Sarah Harman nearly got struck off for contempt of court and for not acting in good faith. She had been described earlier that year by Mr Justice Munby as having
“displayed a remarkable and disquieting lack of candour with the court”.
This came as no surprise to Clifford Ayling’s family who had been invited by the Law Society in 2004 to revisit previous complaints about the solicitor. The first complaint was made in 2001 and further complaints made up to 2005 covered the following issues:
- Misrepresenting facts to the media and disclosing confidential information.
- Making press statements that interfered with fair treatment at the civil trial of C. Ayling.
- Making misleading statements on television about surgery staff.
- Publishing false allegations on the website of the firm Harman & Harman.
- Violating human rights by preventing the Defendant from obtaining legal representation.
- Representing a client whose allegations had led to acquittal and presenting her as a victim.
- Trawling for clients in an unethical manner.
- Use of the position of solicitor to gain access to potential clients with the help of the Police.
- Using information provided solely for the Inquiry to further civil claims for compensation.
- Misleading the Court on points of a medical nature.
- Misrepresenting the evidence of clients.
- Misrepresenting facts in legal documentation and misleading the Court.
- Intimidation of third parties and solicitors acting on behalf of Clifford Ayling.
On 25th April 2005 a Law Society case worker wrote to one of Clifford Ayling’s daughters to explain that four of her complaints about Sarah Harman and another solicitor in her firm were to be investigated. These came under the headings ‘Press statement interfering with fair trial’, ‘Misleading the public’, ‘Improper disclosure’ and ‘Misleading the Court’. In the conclusion of the letter, however, the Law Society case worker said:
“I recognise that your supplying this information to this office is motivated by your wish to seek redress on behalf of others…In such situations…it is the policy of the office to treat such individuals as informants rather than as complainants…Therefore, I should advise that you will not be kept informed during my investigation of the above matters”.
Having received this letter, Miss Ayling arranged for the complaints to be taken over by Clifford Ayling who
was the complainant. The Law Society did not particularly appreciate this move as it was then under an obligation to render an account of its investigation. It then engaged in some linguistic pirouettes and fumbled its way to explaining that none of the complaints it had previously encouraged could be upheld. The file was closed on 10th November 2005 and Clifford Ayling contacted the Legal Ombudsman. Then a few days later the news broke in the media that Sarah Harman had faced a disciplinary hearing and was suspended for three months and had to pay a £30,000 fine. In the meantime, having been informed of the letter to the Legal Ombudsman, the Law Society offered Clifford Ayling a compensatory payment of £150. Clifford Ayling declined the offer and replied to the Law Society in the following terms:
“It appears to me that the Law Society have totally misinterpreted the motives of my daughters when they made their various complaints about the behaviour and practice of the solicitor Sarah Harman.
I would like to quote from a letter sent by my daughters to the Legal Services Ombudsman as far back as 25th February 2002 when the Office for the Supervision of Solicitors closed their first complaint:
“It is sad that a solicitor advocate can be allowed to continue unchecked to misrepresent the actions of innocent people, use the media to project unbalanced accounts and to intimidate persons in order to scare them off from supporting a member of their family.”
Closure with regards to their dealings with the Law Society for my daughters does not rest on compensation but on the acknowledgement that even if Sarah Harman’s actions in her case against me did not, in the opinion of the Law Society, constitute misconduct, there were nevertheless serious grounds for suggesting to Sarah Harman that her conduct when acting as a solicitor is not always that generally perceived by honest members of the public to be fair.”
The Ayling Inquiry
The setting up of an independent private inquiry was announced early in 2001 by the Secretary of State for Health. The claimants cried out in the media for a public inquiry, whipping up a sensationalist media campaign and taking their battle to the High Court (
Howard and another v Secretary of State for Health; [2003] QB 830; [2002] 3 WLR 738; Times, March 28, 2002; HC). They obtained a modified form of private inquiry which allowed only
them to remain anonymous. Anna Pauffley was appointed as Chairman.
Material provided independently to the Inquiry about former patients was vetted by the firm Harman & Harman, as can be seen from a letter written by the Inquiry solicitor to one of Clifford Ayling's daughters on 16th October 2002. Considering that barely two months earlier solicitor Sarah Harman and her clients had been clamouring for a public inquiry and that even more recently Sarah Harman has argued that all papers used in family court hearings should be made public, the contents of the letter were surprising to say the least:
"In recent days, the Inquiry has had reason to reflect upon the documents you delivered and whether any obligations of confidence attach to them. In considering the matter, the Inquiry has taken inot account the views of Harman & Harman who are representing a number of the former patients of Dr Ayling. They have objected to the fact that you have delivered documents, such as medical records, which they say are confidential to their clients, and which it is suggested the Inquiry cannot accept from you because to do so would put the Inquiry in breach of the duty of confidence which is owed at alw to the patient's in question."
As the inquiry progressed behind closed doors with selected evidence, new allegations were made in television interviews of Sarah Harman as the evidence gathering phase of the Inquiry drew to a close. Yet more new allegations then appeared on the Harman & Harman website. Contemporaneous evidence disproving these allegations on the Harman & Harman website was provided to the Inquiry who responded by saying in a letter dated 20th April 2004 that
“the closing date for evidence to the Inquiry has long since passed”.
One such allegation concerned Woman A whose contact with Sarah Harman apparently led to the request that the remit of the Inquiry be stretched back to 1971 in order to permit her allegation to be taken into account. Early in 2004, the Harman & Harman website stated that
“One of [Clifford Ayling’s] first posts was in the Middlesex Hospital in London. A complaint was made about him by one of his patients who was subjected to a horrifying and brutal labour from which she took years to recover, and after which she required a repair operation. Ayling’s two year contract was terminated after only one year suggesting that already by this time his practice was considered suspect”.
One can only assume that the firm Harman & Harman embarked on such sweeping and unfounded allegations on the assumption that they referred to alleged events so far back that no-one could rebut them. However, the letter of renewal of Clifford Ayling’s contract at the North Middlesex Hospital dated 19th October 1971 and informing him that his appointment was to be continued for a further year from 28th December 1971 is still in existence and a copy was sent to the Inquiry.
Woman A had a forceps delivery in February 1971 and was treated for vaginal scarring in July 1971 by the surgeon Mr Clements. As the decision to renew Clifford Ayling’s contract was made in October 1971, it is impossible to corroborate the allegation that appeared on the Harman & Harman website in early 2004.
It is interesting to quote Woman A who attended the Inquiry preliminary meeting in Folkestone on 6th November 2002 at a date when the existence of the documentary evidence referred to above was not yet known:
“I, personally, put an advert in the newspaper which cost me, I think, 250 quid to try and get other people from my time to come forward because I thought people in north London would not associate an obstetrician there with a GP in Folkestone. As far as I know, nobody has come forward from that, but I know that in the summer I had my daughter there were plenty of very distressed women. I wonder if this Inquiry is financed to do any sort of fishing exercise because I do not think, even with all of us here, we are showing what he really did get up to and for how long. I think it was a long time before 1971.”
The lesson to be learnt from the case of Woman A is that in the present climate of lowered standards of proof and heightened eagerness to bring to account at whatever cost doctors that are accused of malpractice, health professionals should make sure they keep all contractual documents and patient information that is in their possession throughout their career. There is talk of using a sliding scale of standard of proof. In the Ayling case the sliding scale was so steep it made a hole in the ground.
The Ayling Report
Unsuspecting health professionals found themselves unwittingly embroiled with the Ayling Inquiry and the Ayling Report was eventually published in September 2004. It made recommendations based on largely uncorroborated evidence with at least two instances of alleged incidents in places and at times when Clifford Ayling would not have been physically present.
Firstly, it is reported that midwife Penny Moore claims to have seen Clifford Ayling masturbating on a patient in Thanet in early 1980 in the consultant Mr Fullman’s Ante-Natal clinic. However, this clinic was not part of Clifford Ayling’s timetable but he did assist Mr Fullman in his Ante-Natal clinic in Canterbury. The Inquiry was provided with a copy of a letter from the Hospital Administrator in 1981 that set out Clifford Ayling’s duties. The letter clearly stated that Mr Fullman’s Ante-Natal Clinic was at the Kent & Canterbury Hospital as was a further part session that Clifford Ayling did to deal with the overflow patient list. If Mr Fullman had been called to his Ante-Natal Clinic in
Margate in early 1980 it would not have been in connection with anything regarding Clifford Ayling. Although the Ayling Report failed to refer to it, it would seem that Mr Fullman told the Inquiry that Clifford Ayling never assisted him in his
Margate Ante-Natal Clinic.
Secondly, it is reported that former unit manager Dr Voysey provided the Inquiry with a most elaborate uncorroborated allegation about an alleged incident in 1988 in a completely undocumented purported weekly colposcopy clinic that Clifford Ayling is supposed to have manned in Margate
after having obtained compensation from the hospital authorities in December 1987 as a result of the termination of his contract with Margate Hospital in June 1987.
There is strong documentary evidence to show that Clifford Ayling did not work in Margate after June 1987 (particularly correspondence with the solicitor who dealt with the application to the Industrial Tribunal and Clifford Ayling’s contemporaneous diaries with no related entries). On 5th May 2005 the Kent and Medway Strategic Health Authority responded to Clifford Ayling’s request for information under the Freedom of Information Act and the Data Protection Act and stated that it does
“not hold information regarding contracts relating to colposcopy work undertaken by you in a hospital setting from 30 June [1987] onwards other than your contract for such work at the William Harvey Hospital [in Ashford]”. Clifford Ayling similarly requested information from the NHS Pensions Agency in 2006 and there is nothing that corresponds to the alleged weekly clinic Dr Voysey claims she employed him to do in 1988.
On 30th May 2003 the Secretary of State for Health granted the Inquiry the power of compulsion to call witnesses to attend and answer questions. Why was this power not used? Clifford Ayling was in prison and production was an easy matter.
Instead, the Inquiry used public funds to counter proceedings issued by Clifford Ayling on 6th June 2003, one month before the projected end of oral evidence gathering, to prevent him from participating in the Inquiry (
High Court, Queen’s Bench Division, Claim no. CO/2650/2003). The main reason put forward by the Inquiry was that it considered Clifford Ayling to have refused to sign its confidentiality undertaking and it was too late to allow him to participate in the Inquiry because the team intended to deliver its report
“in the autumn or early winter [of 2003]”. At the hearing of this application the judge decided to refuse Clifford Ayling permission to participate in the Inquiry because it was deemed that this would be detrimental to the Inquiry’s progress. Clifford Ayling was not aware at this hearing of the fact that in May 2003 the Inquiry had been reconvened under section 84 of the National Health Service Act 1977. Neither, it would seem, was the judge.
However, by March 2004 the Inquiry had still not delivered its report and Clifford Ayling made a renewed application to be heard by the Inquiry team (
Court of Appeal, Civil Division; [2004] EWCA Civ 303). The letter he was sent by the Inquiry solicitor on 24th March 2004 totally belies the repeated expression of regret within the body of the Ayling Report (and encapsulated in paragraph 2.14 on page 19) that the Inquiry was deprived of Clifford Ayling’s assistance in clarifying the context of his case, for the letter said that if Clifford Ayling took the step of issuing fresh proceedings to pursue his request to be heard by the Inquiry, they would
"be defended vigorously by the Inquiry".
It is difficult to comprehend why the Inquiry team did not simply use its power of compulsion to summon Clifford Ayling at the end of the evidence gathering phase of the Inquiry process and put to him the various allegations that had been made for the first time within its proceedings.
In June 2003 the Inquiry Chairman was perfectly aware that the amount of evidence the Inquiry had been provided with would not enable her to deliver her report to the Secretary of State within the time span she announced to the Court in her summary grounds for opposing Clifford Ayling’s application. In the same summary grounds she also explained that
“the Inquiry is not directly decisive of the Claimant’s reputation” and that
“the functions performed by the Inquiry are, in practice as well as in theory, essentially investigative”.
By failing to use its powers to summon Clifford Ayling to attend and answer questions on a date within the deadlines it had set itself for the gathering of evidence, the Inquiry failed to fulfil its investigative functions. The lengthy description in the Inquiry Report (Appendix 7) of purported failed attempts to engage with Clifford Ayling is simply a self-serving attempt to deliberately confuse the issue. The Inquiry’s decision not to make Clifford Ayling attend and answer questions suggest his evidence would have been problematic and the Inquiry simply did not want a spanner put in its works.
As a result the Ayling Report is anything but fair, professional or authoritative and it brings to mind a description made by the actor Kevin Costner in the film
JFK when he said
“…incredible testimonies ignored, leads are never followed up, its conclusions selective… it’s one of the sloppiest, most disorganized investigations I’ve ever seen”.
Whatever standard of evidence you apply, the Ayling Inquiry had material in its possession that strongly suggested there was no hot stuff going on in Clifford Ayling’s surgery or anywhere else. So why was the Inquiry Chairman clearly under pressure to produce a smokescreen report suggesting there was?
The Implications of the Ayling Report
The Ayling Report has ongoing implications for policy and training throughout the health service. Its recommendations, with those of other reports, led to a stated aim by the GMC in 2005 that the regulation of the profession should progress towards being patient led within a strategy underpinned by annual business plans. Where does that leave the NHS employee?
Presumably it is deemed cheaper, and better for public relations, to implement a strategy of large out of court settlements to complainants with no questions asked than to properly investigate complaints. This is detrimental to the fair treatment of both falsely accused health professionals and bona fide complainants. It is also detrimental to the patients who are deprived of medical services as enormous funds are drained away to pay for pseudo-investigations of cases that should never have got off the ground had the safeguards one might expect from health authorities and medical organisations operated properly.
The Department of Health was provided with submissions and evidence from Clifford Ayling about the Ayling Report in October 2006. This material was ignored and none of it was referred to in the Government’s White Papers published in February 2007 that sideline the issue of false allegations made against health professionals.
Clifford Ayling’s submissions and evidence made in October 2006 can be accessed on the home page of this website.
In May 2007 Clifford Ayling launched a Judicial Review application of the decision of the Secretary of State to publish the White Paper that constituted a response to the Ayling Report without having first reviewed the findings of the Ayling Report in the light of his submissions and evidence. The Secretary of State is contesting the Judicial Review Application but Clifford Ayling believes there is a need for public scrutiny of the transcript of the Ayling Inquiry (the contents of which were transmittable in their entirety to the media) and of the evidence referred to in those hearings. Making this material accessible to the public would cost peanuts compared to the millions spent on recent inquiries. And if nothing went wrong in the handling of evidence given to the Ayling Inquiry, why should the public not know what did go on?
