Transcript and evidence / Inquiry into allegations about Clifford Ayling (2004) Cm 6298

The request was refused by Department of Health and Social Care.

Dear Department of Health,

Re: COMMITTEE OF INQUIRY INDEPENDENT INVESTIGATION INTO HOW THE NHS HANDLED ALLEGATIONS ABOUT THE CONDUCT OF CLIFFORD AYLING - (2004) Cm 6298 - REQUEST FOR RELEASE OF THE TRANSCRIPT OF THE ORAL PROCEEDINGS.

The judgement of Mr Justice Scott Baker at §100-§101 in R (Howard) v Health Secretary (QBD) [2002] EWHC 396 (Admin) said the following with regards the modified form of private inquiry set up to investigate how the NHS handled complaints about the alleged conduct of Clifford Ayling:

“Following the revised arrangements, the claimants and all the other victims are entitled, if they wish, to be present throughout every minute of the inquiry, or to have a representative there…There is no restriction on the claimant receiving or imparting any information. Following the Secretary of State’s revised arrangements, they are perfectly free to sit through the whole of the inquiry if they so wish and to pass on any information they like to anyone.”

The reason for the decision not to hold the Ayling Inquiry in public, put forward by the then Secretary of State for Health, was explained by Mr Justice Scott Baker in the following terms at §23:

“The Secretary of State felt the inquiry might be compromised if witnesses were asked to give evidence in the glare of media attention. In his view not all of them…would wish to do so and there was a risk that some victims might be deterred from doing so if the media were present”.

It is clear that none of the information expected to be given in evidence to the Ayling Inquiry was considered to be sensitive (in political terms) or confidential. The only concern expressed by the then Secretary of State for Health was that some witnesses to the Inquiry may feel intimidated by the presence of the media.

The Inquiry report was published in 2004, and the Clifford Ayling case is no longer reported in the media. Some of the participants to the Inquiry have retired and none today have any obligation to find themselves in a public place in connection to proceedings regarding the Clifford Ayling case. The concern expressed in 2002 with regards to the media is now null.

The Inquiry Procedures as set out in Appendix 9 of the 'Ayling Report' (Cm 6298 - published in September 2004 - p.258/§16) leave no doubt as to the effective public status of the contents of the Inquiry's oral hearings:

“It should be recognised that there is no restriction on what those present at any oral hearings held by the Inquiry can say publicly about what occurred at those hearings. Thus, to the extent that oral evidence is given at those hearings, there will be no restriction on the content of that evidence entering the public domain should those who attend the hearing choose to talk about it.”

The existence of the transcript of the oral hearings is referred to on page 13 at §1.36 of the 'Ayling Report' :

"All oral evidence was simultaneously transcribed using a system called Livenote. A transcript of the proceedings was made available to the representatives of the participants as soon as conveniently possible after each day’s evidence."

I therefore request that the Department of Health release into the public domain the full transcript of the oral hearings of the 'Ayling Inquiry' (from April to July 2003).

Are copies of this documentation already available anywhere in the public domain? If so, can you please provide it, or a link to it, for me, please? If not, how can it be requested by members of the public?

Yours faithfully,

Truth SEEKER

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1 Attachment

Dear Ms Ayling,

Please find attached the Department of Health's response to your recent
FOI request (our ref: FOI 1082690 ) 

Yours sincerely,

 Alan Buchan 

Freedom of Information team
Department of Health

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Joan AYLING left an annotation ()

This reply from the DoH is totally indadequate and at variance with prior responses made to my father Clifford Ayling (the subject of the Inquiry in question). I am preparing a reply but need to dig out paperwork first.

Your reference:
request-401119-70dbab1c
whatdotheyknow.com

NB: The attachment mentioned in this message has been sent directly to the DoH by e-mail.

Dear Mr BUCHAN,

Thank you for your response dated 16th May 2017 on the whatdotheyknow website to
my FOI request made on 13th April 2017 under the subject heading Transcript and
evidence / Inquiry into allegations about Clifford Ayling (2004) Cm 6298.

In the light of previous responses by the Department of Health made to FOI
requests by my father Clifford Ayling in 2007 for access to the same material
that is requested in my FOI request on 13th April 2017, your response is clearly
contradictory and therefore inadequate.

Firstly, the question of whether or not the DoH holds the information I am
requesting is not an issue. In a recent letter dated 3rd April 2017 the Minister
of State for Health, Philip DUNNE, wrote:

“I appreciate Ms Ayling’s concerns about the destruction of records following
the expiry of the ten-year period, as mentioned in the letter dated 11 January
2010.

I would like to reassure Ms Ayling that the Department of Health will be
retaining the records related to the Ayling Inquiry for longer than ten years.
The Department of Health has implemented the moratorium on records destruction
requested by the Independent Inquiry into Child Sexual abuse very broadly, and
accordingly there has been no destruction of files, with the exception of
finance records unrelated to the Inquiry, since March 2015.”

You will find attached copies of correspondence between Clifford Ayling and your
department in 2007 (letters dated 16.08.07, 05.09.07, 21.09.07, 19.11.07,
28.12.07). In the letters dated 05.09.07, 21.09.07 and 28.12.07 from your
department to Clifford Ayling, it was clearly stated and reiterated that the
Department of Health was refusing the FOI solely on a discretionary basis and
referred to Section 9A (3) of the Data Protection Act.

At no point in these letters did your department refer to section 32 of the FOIA
or suggest that there exists an absolute exemption relating to the material that
was (and still is) being requested.

Could you therefore please clarify why your response of 16th May 2017
contradicts the responses made by your department directly to Clifford Ayling in
2007.

It has been made clear that the FOI/DPA request rests specifically on access to
the livenote transcript of the oral hearings of the AYLING INQUIRY.

Such livenote transcripts of inquiry hearings are already accessible on
internet, such as the livenote version of the transcripts of the hearings of the
Rosemary Nelson Inquiry that can be downloaded on the official national archives
website
(http://webarchive.nationalarchives.gov.u....

It is therefore perfectly reasonable to suggest that the livenote version of the
transcripts of the oral hearings of the AYLING INQUIRY could be made available
in the same way.

Regarding consideration of the public interest, I have added below as a post
scriptum extracts from Clifford Ayling’s ‘Response to the Summary Grounds for
Contesting the Claim’ dated 8th October 2007 in his application for permission
to apply for judicial review (Claim No. CO/4284/2007). These extracts are but a
small sample of the material that was provided to the Department of Health as
early as 2006.

The application in 2007 was sought to “mount a judicial review challenge to the
Secretary of State’s decision to publish, on 21 February 2007, a White Paper
entitled Safeguarding Patients – The Government’s response to the
recommendations of the Shipman Inquiry’s fifth report and to the recommendations
of the Ayling, Neale and Kerr/Haslam Inquiries (“the Command Paper”) without
taking into account the submissions and evidence provided to the Secretary of
State for Health on 26th October 2006 that raised serious concerns with regards
to the validity of the findings of the Ayling Inquiry which have been, to all
intents and purposes, established as fact and upon which recommendations were
based.”

I look forward to a more detailed response explaining why your department has
changed the reasons for refusing access to the material requested, and
specifically to the livenote transcript of the oral hearings of the Ayling
Inquiry.

Yours sincerely,

Joan AYLING

Post Scriptum
Claim No. CO/4284/2007 - Response to the Summary Grounds for Contesting the
Claim
Claimant: Clifford AYLING
Defendant: Secretary of State for Health
EXTRACTS

159. A SUMMARY OF THE APPLICATION

160. This application is to challenge the Secretary of State’s decision not to
take steps at the earliest opportunity to correct the effective bias in the
Ayling Report, that the Claimant contends exists as a result of procedural
impropriety, after the Claimant produced submissions and evidence in October
2006.

161. The Secretary of State did not take steps to correct the effective bias in
the Ayling Report and provided no response direct to the Claimant or his
daughter (who had delivered the said submissions and evidence on his behalf) to
the claimant’s submissions or evidence. The publication of the Command Paper and
other related White Papers on 21st February 2007 promulgated the said effective
bias and further determined as from 21st February 2007 the Defendant’s decision
to determine criminal charges against the Claimant beyond those made at his
criminal trial in 2000.

162. The Secretary of State decided to present to Parliament the said Command
Paper and other related White Papers referred to above on 21st February 2007
without referring either in the White Papers or in any declaratory statement to
the fact that the Ayling Report contains errors of fact or that the findings of
the Ayling Report have been formally contested and should not therefore be
considered to have presumptive evidential status.

163. This application for judicial review of the said decisions as described
above of the Defendant was presented to the Court on Monday 21 May 2007. It is
not out of time.

164. The insistence in the Defendant’s Summary Grounds on the Claimant’s failed
applications in 2003 and 2004 to participate at the Inquiry implies that had the
Claimant been a participant to the Inquiry the present application would not
have been made. That premise is incorrect.

165. The presence of the Claimant at the Inquiry would not have precluded the
possibility that the Inquiry’s findings would be biased or that its Report would
contain factual inaccuracies. Indeed, the Claimant is of the belief that even if
he had attended the Inquiry the Ayling Report would nevertheless have contained
bias and numerous errors of fact for which he could not have been held
responsible.

166. The Defendant would appear to be suggesting that the Claimant’s presence at
the Inquiry would have precluded the existence of any grounds giving rise to an
application for judicial review of the Secretary of State’s decision not to
review in any official manner the contents of the Inquiry’s findings.

167. The corollary to this suggestion would be that any person accused of
indecent assault who was present at their own trial would not have the right to
appeal their conviction on the basis that the Court had been given incorrect
information because it would be argued that the accused person’s presence at
their trial precluded any such appeal. This argument is clearly not tenable.

168. The Claimant’s position with regards to the grounds on which he was asking
for the Report to be reviewed was made clear to the Defendant in a letter sent
on 9th September 2005 in which he said:

“Upon reading the [Ayling] Report it is clear that the Committee has been given
many blatantly wrong facts and have come to very biased conclusions. It has been
stated that I have refused to ‘engage’ with the Inquiry for ‘the Inquiry to take
account of his input.’ (p.11). In view of the contents of the Report that could
be fortuitous since it has not permitted an adulteration of my evidence.” [4/tab
2/p.36]

169. The Claimant believes that the failure by the Defendant to correct factual
errors that are contained in the Ayling Report at the earliest opportunity was
unlawful with regards to the duties of the Defendant as described in the 2004
paper Individual ministerial responsibility – issues and examples:

“Ministers must not knowingly mislead Parliament and the public and should
correct any inadvertent errors at the earliest opportunity. They must be as open
as possible with Parliament and the public, withholding information only when
disclosure would not be in the public interest…” (House of Commons Research
Paper 04/31, 5th April 2004, p.10)

170. The Claimant believes there is a high probability that the facts and
impressions contained in the transcript of the Inquiry’s oral hearings and the
material referred to therein are not properly described in the Ayling Report.
The publication of the said transcript and material would be the most
efficient, transparent and cost effective method of correcting inadvertent
errors.

171. The Claimant believes that the Defendant is attempting to suppress the
Claimant’s concerns, evidence, submissions and requests by contesting this
application at considerable cost instead of producing material that should to
all intents and purposes be accessible to the public. The Claimant indeed
believes that the cost of producing the said material in the form in which it
was passed to the Department of Health when the Inquiry ceased to exist would
not exceed the cost of having produced summary grounds to contest this
application. The Defendant’s wish to have the evidence given to the Ayling
Inquiry suppressed, together with the refusal of the Department of Health to
provide the Claimant with any of the information it holds to which he is
entitled under the Freedom of Information Act and Data Protection Act, tend to
suggest that the Defendant wishes to conceal from the Claimant and the public
information that may give rise to public concern. It also suggests that if the
Claimant were able to access the said withheld information it would uphold his
contentions and support his case that the Defendant chose to ignore factual
inaccuracies of which the Department of Health was aware in the Ayling Report,
that the Defendant was aware of an abuse of process financed by public funds,
and that the Defendant unlawfully determined criminal charges against the
Claimant.

172. PUBLIC STATUS OF MATERIAL

173. The Claimant does not believe there is any public interest issue that can
be argued for withholding the transcript of the hearings of the Ayling Inquiry
or the material that was referred to within those hearings. The Claimant further
believes that the disclosure of the transcript of the oral hearings is essential
and any resistance to the request for the disclosure of the said transcript
should raise doubts as to the Inquiry Chairman’s assertion in February 2004 when
contesting the Claimant’s application to participate in the Inquiry that there
was no “lack of fairness” in the Inquiry’s proceedings [3/tab 5/p.134/§32].

174. Further, all matters relating to the withholding or disclosure by the
Department of Health of information relating to the Ayling Inquiry since the
Inquiry ceased to exist fall squarely under the responsibility of the Defendant,
as is clearly stated in 2004 in the foreword to the research paper cited above:

“Ministers inform and explain, apologise, take remedial action, or resign in
support of the convention of ministerial responsibility…The responsibility of
individual ministers for their own conduct and that of their departments is a
vital aspect of accountable and democratic parliamentary government.”
(Claimant’s emphasis) (Individual ministerial responsibility – issues and
examples, House of Commons, Research Paper 04/31, 5th April 2004, Summary of
main points (foreword))

175. Therefore, it is incumbent upon the Secretary of State to give a full
explanation of the reasons for not presenting to Parliament the Claimant’s
submissions and evidence, as set out in his formal requests made in October
2006, and also for the reasons why the Department of Health is resisting
attempts to have the material that formed the basis of the findings of the
Ayling Inquiry made public.

176. In his evidence provided in October 2006 the Claimant contended, in
connection with the contents of §3.64 of the Ayling Report, that:

“The transcript of the oral hearings must be made available so that a fuller
understanding of how witnesses were questioned and brought to purportedly
“accept” the Inquiry’s premises can be obtained.” [4/tab 3/p.146/§3.64]

177. It would appear that no issues of confidentiality can be raised to uphold a
refusal to disclose the transcript of the Inquiry hearings and it is difficult
to see that the question of cost can arise as the transcript is already in
existence and, if the Inquiry procedures as set out in the Ayling Report were
adhered to, is already in an anonymised form and does not refer to any patients
by name:

Ayling Inquiry: Inquiry Procedures
“A list of intended oral witnesses will be circulated in advance, again on a
confidential basis, to the participants. No patient would be mentioned by name
in the hearings. When a healthcare professional is asked in oral evidence about
a patient’s case, they will be informed of the name of the patient whose case is
being discussed; but the patient’s name will not be mentioned openly. This will
help to keep sensitive matters private.” (Claimant’s emphasis) [1/ p.259/ §21]

Ayling Inquiry: Part Once Proceedings
“All oral evidence was simultaneously transcribed using a system called
Livenote. A transcript of the proceedings was made available to the
representatives of the participants as soon as conveniently possible after each
day’s evidence”. [1/p.13/§1.36]

178. The Claimant is not aware of any specific policy regarding the status of
written material referred to in the hearing chamber of modified forms of private
inquiry set up by the Defendant, nor of any specific policy relating to the
legitimate use of the transcript of the oral hearings of such forms of inquiry.

179. In this application (p.15 §iii)) the Claimant refers to the fact that the
Ayling Report:

“…states on pages 252-253 that it was not called on to adjudicate on the status
of written material which was referred to in the hearing chamber or on the
legitimate use of the transcript of the oral hearings”. [See also 1/p.252
-253/§5-6]

180. It is therefore legitimate to suggest that there are no legal bars
prohibiting the production of the material referred to above and the decision
whether to disclose it or not rests with the Secretary of State for Health.

181. It also appears legitimate to suggest that any decision to resist
production of the material referred to above is in breach of the Government’s
commitment to openness and transparency and is likely to set a precedent for the
non disclosure of similar material that might give rise to concerns about
fairness subsequent to future modified forms of private inquiry relating to
issues surrounding the alleged conduct of health professionals.

182. The Claimant believes that the following information to be found in the
Ayling Report is relevant to this application and the request that the material
referred to in the oral hearings be made public since the said material was not
of a confidential nature:

“Although in 1999, the Courts took the view that patient data that had been
anonymised was no longer subject to a duty of confidence, this was not clearly
recognised before that date1…During the Inquiry, patients suggested that there
needed to be a wider recognition that patient safety was more important that
[sic] patient confidentiality. [1 R v Department of Health ex parte Source
Informatics Ltd (2000) 1 All ER 786: (2000) 52 BMLR 65: (2000) WLR 940].”
[1/p.120/§4.67-§4.68]

183. The Claimant contends that the material referred to in the oral hearings is
already in a form that can be published. The following explanation in the Ayling
Report would appear to determine this as being the case:

“For the former patients and other witnesses attending the oral hearings, we
wished to assist them in understanding the content of the hearings. We attempted
to achieve this by showing on a large plasma screen those witness statements and
documents (suitable redacted where necessary) which were being discussed in the
course of a witness’s evidence”. [1/p.253/Appendix 6/final §)

184. It is therefore incumbent upon the Defendant, in compliance with the
individual ministerial duties and responsibilities, to give a full explanation
of the reasons for the decision that has been made to contest the Claimant’s
application as set out at section 6 of the Judicial Review Claim Form for this
application for:

“The Court to make an order that the livenote transcript of the oral hearings of
the Ayling Inquiry and all the statements referred to in those hearings be made
public”.

185. The Claimant wishes to refer to an extract from the 2004 New Zealand Ruling
of the Commission of Inquiry into Police Conduct to support his contention that
in the case under consideration it is not reasonable to withhold the evidence on
which the Ayling Inquiry based its findings:

“An atmosphere of secrecy readily breeds the suspicion that the inquiry is
unfair or oppressive. Especially is this so when the inquiry has power to compel
attendance and testimony…Linked to this is a concern that, if we hear evidence
in private or suppress essential evidence, our conclusions may be seen as either
a whitewash or a kangaroo court assessment emerging from a star chamber
arrangement. We are expected and instructed to call the police to account. Those
who are called upon to justify or explain their conduct are entitled to the
protections of natural and fair process…The justifications behind the principle
of open justice include judicial accountability and with it the prevention of
arbitrary decision making and abuse of process.” (Claimant’s emphasis) 27 August
2004, §23-§27

186. In R (Howard and Another) v Secretary of State for Health [2002], the Times
Law Reports explains that Mr Justice Scott Baker said the European Court of
Human Rights held that “article 10.1 did not confer a right on individuals to
receive information that others were not willing to impart”.

187. The witnesses to the Ayling Inquiry who provided only written evidence were
aware that their evidence could be referred to within hearings that could be
related directly to the public through the media. The witnesses who went on to
give oral evidence knew that their evidence could be circulated to other
participants to the Inquiry via the livenote transcript and that all of their
evidence could potentially be related to the public through the media. All the
witnesses at the Ayling Inquiry attended voluntarily. It is therefore logical to
presume that all the witnesses to the Inquiry who provided either written or
oral evidence were willing for that information to be imparted to the public
through the media.

188. The Secretary of State’s argument for not holding the Inquiry in public was
not that potential witnesses did not wish their evidence to be made public but
that potential witnesses may not have wished to give their evidence in the glare
of media publicity. The concessions made by the Secretary of State (i.e. that
participants could impart any of the information made available during the
hearings to the media) combined with the fact that the Inquiry did not use any
powers of compulsion to bring witnesses to the Inquiry, must lead one to the
conclusion that all the witnesses to the Inquiry were willing to have their
evidence imparted to the public.

189. At §103 of R (Howard and Another) v Secretary of State for Health [2002] Mr
Justice Scott Baker explained that:

“What article 10(1) is really about is the basic freedom of individuals to
express themselves by giving and receiving opinions, information and ideas
without restriction on the part of the state.” (Claimant’s emphasis)

190. The Claimant believes that the above comment is relevant to the present
application because the State, represented by the Defendant, is restricting both
the Claimant’s and the public’s right of access to information. This information
is that which was given or referred to during the Inquiry hearings. Given the
Secretary of State’s concession made in 2002 that all participants to the
Inquiry could impart to the media information given or referred to during the
Inquiry, and the fact that all the witnesses to the Inquiry provided
information and evidence without the need to be summoned, it is rational to say
that all the witnesses to the Inquiry were willing for the said information to
be imparted to both to the Claimant (whom it can be assumed was expected to be a
participant to the Inquiry) and to the public.

191. The Claimant therefore believes that the Secretary of State is in breach of
Article 10(1) of the Human Rights Act by restricting public access to
information that is not subject to any form of privilege and which could well
uphold the Claimant’s contention that the Ayling Inquiry received information
from witnesses that was not dealt with impartially.

192. Potentially, every word that was said at the Inquiry’s oral hearings could
have been repeated in public. Mr Justice Scott Baker at §100-§101 in R (Howard)
v Health Secretary (QBD) [2002] EWHC 396 (Admin) was very explicit on this
point:

“Following the revised arrangements, the claimants and all the other victims are
entitled, if they wish, to be present throughout every minute of the inquiry, or
to have a representative there…There is no restriction on the claimant receiving
or imparting any information. Following the Secretary of State’s revised
arrangements, they are perfectly free to sit through the whole of the inquiry if
they so wish and to pass on any information they like to anyone.”

193. The reason for the decision not to hold the Ayling Inquiry in public, put
forward by the then Secretary of State for Health, was explained by Mr Justice
Scott Baker in the following terms at §23:

“The Secretary of State felt the inquiry might be compromised if witnesses were
asked to give evidence in the glare of media attention. In his view not all of
them…would wish to do so and there was a risk that some victims might be
deterred from doing so if the media were present”.

194. It is clear that none of the information expected to be given in evidence
to the Inquiry was considered to be sensitive (in political terms) or
confidential. The only concern expressed by the then Secretary of State for
Health was that some witnesses to the Inquiry may feel intimidated by the
presence of the media.

195. The Inquiry Procedures as set out in Appendix 9 of the Ayling Report leave
no doubt as to the effective public status of the contents of the oral hearings:

“It should be recognised that there is no restriction on what those present at
any oral hearings held by the Inquiry can say publicly about what occurred at
those hearings. Thus, to the extent that oral evidence is given at those
hearings, there will be no restriction on the content of that evidence entering
the public domain should those who attend the hearing choose to talk about it.”
[1/p.258/§16]

196. The Claimant expects the Defendant to argue that if all of what was said at
the oral hearings did not enter the public domain it is because witnesses to the
Inquiry did not wish to impart all that was said. However, the Claimant believes
that the failure of the Inquiry to compel him to give evidence and answer
questions effectively denied him the opportunity of hearing what he would have
heard at the oral hearings had he been present. Refusing to impart to the
Claimant the information that was given at the oral hearings would only
perpetuate that injustice.

197. It is also possible that the Defendant will argue that even had the
Claimant signed the confidentiality undertaking he wished to participate in the
Inquiry after his release from prison and therefore did not wish to be present
at the oral hearings. The Claimant believes this point to be irrelevant because
had that been the case he would have seen the documentation relating to the
complaints made about him. In the event it is the Inquiry Chairman who refused
to consider the Claimant’s request when he was prepared to sign the
confidentiality undertaking in July 2003 that he be shown the said documentation
on his release from prison. It was therefore the Inquiry Chairman who denied the
Claimant access to information given at the oral hearings by failing to use her
powers of compulsion to make him attend and it was the Inquiry Chairman who
denied the Claimant access to written documentation on his release from prison
despite his willingness at that point to sign the confidentiality undertaking.

198. MEDIA COVERAGE / SPECULATIVE REPORTING

199. In R (Howard and Another) v Secretary of State for Health [2002], at §64,
Mr Justice Scott Baker explained that Mr Faulks QC (instructed by Harman and
Harman Solicitors, for the Claimant) submitted that despite the concession by
the Secretary of State for Health that witnesses at the Ayling Inquiry could
talk to the media about the contents of the oral hearings, there were:

“still real disadvantages in excluding the media and general public. First, it
is not satisfactory for the media to learn secondhand from those who may well
give a distorted account of what was said at the inquiry. Secondly, the absence
of the media means there will be less publicity to activate other victims or
relevant witnesses previously unaware of what was happening. Also, it may be
very inconvenient for a victim to attend all the time, for example a child or
work commitments might have to take precedence”. (Claimant’s emphasis).

200. The Claimant agrees that media reports of events are often distorted.
However, the Claimant also believes there is a legitimate expectancy that a
person acting as a solicitor attending an inquiry will be particularly careful
not to distort evidence when speaking to the media in televised interviews.

201. Nevertheless, the solicitor Sarah Harman made a number of misleading
statements to the media both prior to, during, and after the Inquiry. Some of
these misleading statements are recorded in complaints made to the Law Society
on behalf of the Claimant throughout the period 2001-2005.

202. The question of misleading information that is disseminated through the
media is to be addressed in the light of the Claimant’s contention that a number
of witnesses who agreed to give evidence at the Ayling Inquiry were not treated
fairly and the effect this can have where in Britain the ‘findings’ of Inquiries
can be used as evidence in civil proceedings which are then themselves the
subject of speculative media coverage.

203. In the Ayling case, the speculative media coverage of the claims against
the Health Authority in Godden & Others v Kent & Medway Strategic Health
Authority ([2004] EWHC 1629 (QB)) was fuelled by the very solicitor who was
instrumental in imparting misleading information to the media about the contents
of the hearings of the Ayling Inquiry during the evidence-taking phase of the
Inquiry.

204. The effect of the media coverage on witnesses who agree to give evidence at
inquiries is an issue that was raised at §93 of the 2004 Consultation Paper
Effective Inquiries:

“Coverage of inquiries can be high profile and criticism can have a significant
impact on the career or personal lives of individuals involved. (DCA
Consultation Paper, 6 May 2004, p.35, §93)

205. It would seem, for example, that both the consultants Mr Patterson and Mr
Fullman were referred to the General Medical Council’s Fitness to Practice
Committee as a direct result of their having participated at the Ayling Inquiry.

206. This kind of treatment is clearly contrary to the assurances made by the
Government in the White Paper Trust, Assurance and Safety that its reform of the
regulation of health professionals will ensure fair, honest and open procedures:

“Confidence in the handling of fitness to practise cases is…fundamental to
confidence in the system of professional regulation as a whole…the need for a
robust, fair and effective fitness to practise system is no less necessary for
each of the professional regulators…proposals to ensure that patients, the
public, health professionals and Parliament can be confident that when it is
necessary to investigate a professional’s fitness to practise, this will be done
in a fair, honest and open way…processes that…also gain the respect of
professionals by being consistent, fair and proportionate. The system for
fitness to practise must be just and it must be seen to be just.” (Trust,
Assurance and Safety – The regulation of Health Professionals in the 21st
Century, [2/tab 4/p.43-44/§3.3-3.4]

207. The situation in which misleading information about clients of the firm
Harman & Harman was selected and distorted in public whilst the firm
concurrently objected to information about its clients and previous proceedings
against the Claimant from being seen by the Inquiry, is all the more
unacceptable in the light of the fact that the Press Complaints Commission
upheld a complaint by Messrs Harman and Harman in May 1999 and in its
adjudication:

“took the opportunity to remind editors…of the danger that inaccurate or
misleading reporting may generate an atmosphere of fear and hostility which is
not borne out by the facts”.

208. The Claimant is aware, for example, of four different versions of the
evidence of Penny Moore relating to an alleged incident in 1980, two of which
were put into the public domain by the solicitor Sarah Harman or her firm:

i) Version given to Meridian TV news by the solicitor Sarah Harman in July 2003
(apparently on leaving the hearing at which Penny Moore gave evidence):
“The significance of this is that in sexual abuse cases there’s often no
corroborative evidence, it’s just the victim’s word against the perpetrator. But
this is very serious because clearly what happened was witnessed by two other
nursing staff…” => This allegation implies that the victim complained and
that two nurses witnessed the incident (i.e. there were at least three eye
witnesses).

ii) Version given in the Ayling Report in September 2004:
The Inquiry explicitly worded its description “to avoid any risk of identifying
individuals concerned” (i.e. the patient). No reference was made to patient
reaction or a patient complaint. It is alleged the anonymous, unidentified
‘victim’ was a patient of Mr Fullman seen in the Thanet Antenatal Clinic. Penny
Moore was allegedly called urgently by an unidentified nurse chaperone. Penny
Moore is alleged to have witnessed masturbation (i.e. at least two eye
witnesses, only one at Inquiry).

iii) Version given on the firm Harman & Harman’s website in April 2004: “a very
serious incident occurred when a senior nurse came upon Ayling in an outpatient
clinic when he was observed to be masturbating whilst undertaking a vaginal
examination of a patient”
=> In this allegation the ‘other nurse’ has totally disappeared and it is
claimed Penny Moore came upon the incident by chance (i.e. only one eye
witness).

iv) Version given by Mr Fullman in November 2005 in a letter to the Claimant’s
daughter of the information he received and gave as a participant to the
Inquiry:
Penny Moore did not witness the incident, she only heard of it, and the ‘other
nurse’ was never traced by the Inquiry (i.e. no eye witness). The Claimant never
worked in Mr Fullman’s Antenatal Clinic in Margate. .

209. Clearly, the only valid version of what Penny Moore told the Inquiry is the
one that is missing – the evidence of Penny Moore herself – and it is clear that
neither the nurse whom it is alleged called Penny Moore to the alleged clinic,
nor the patient that it is alleged the Claimant was treating, have been
identified.

*****************************************

672. REJECTING CONTEMPORANEOUS EVIDENCE

673. The fashioning of evidence to streamline it in the Ayling Report into a
‘similar fact’ narrative and the absence of proper informed comment on normal
obstetric or gynaecological practice (which appears to the Claimant to be a
prerequisite to deciding where the border between the norm and alleged
sexualised behaviour is to be situated) can be seen in the Inquiry’s description
of the complaint by Patient I.

674. The Ayling Inquiry stated that “On any ordinary reading of the letter
[written by Patient I in 1993], the experience she described amounted to a
traumatic and abusive episode” [1/p. 78/§3.253].

675. The Claimant believes it can be assumed from this statement that the
Inquiry was in possession of the said letter and had read it carefully.

676. However, the following table highlights the discrepancies between Patient
I’s letter written in 1993 and the version of the incident provided in the
Ayling Report in 2004. There is also a significant lack of informed clinical
comment in the Report’s assessment of Patient I’s specific complaint:

Item 1
Original complaint: “Dr Ayling commented that my blood pressure was higher than
previous recordings and informed me that my blood pressure was high, and I
quote, because “You must find me attractive, but then all the girls do”, I
smiled at this comment but it was strange to hear such a comment from a doctor.
He then proceeded to examine my breasts, which I was expecting, however he made
another strange comment at this stage when he told me that my nipples were very
soft and if I wanted to breast feed my baby that I should start to “tweak” my
nipples every day to toughen them. I thought this was strange and when I later
told my family and friends of this, those who have had children informed me that
they had never been given such advice by any doctors or Midwives.”
Ayling Report: Patient I stated that Ayling had made inappropriate sexual
comments. [1/p.78/ §3.253])
Comment:
=> Extract from the website of the Australian Breastfeeding Association (July
2006):
“Many mothers have problems with their breasts. If you deal with these problems
straight away you may stop them getting worse…Ante-natal preparation: ask your
medical adviser to examine your breasts and nipples…if you wish you may pull out
your nipples and roll them gently between thumb and forefinger – should be done
firmly but should not hurt…”
=> Extract dated 1984 from Communicating Midwifery (Books for Midwives, 1995, p.
55) – a collection of articles by Caroline Flint, President of the Royal College
of Midwives:
“Very few women going through the antenatal system miss out on having their
breasts examined; many of them have advice on expressing colostrum, wearing
supporting bras, rolling nipples, washing nipples, creaming or oiling nipples.
Midwives all over the country are bent over nipples examining, advising and
educating.”

Item 2
Original complaint: “He then proceeded to examine my breasts, which I was
expecting…”
Ayling Report: “[Patient I] describes telling Mrs Jed that…he had touched her
breasts inappropriately, having coerced her into a breast examination.” [1/p.91/
§3.320]
Comment:
 No reference whatsoever in the contemporaneous complaint of the manner of
breast examination, of any distress caused by it, or of any wish to decline a
breast examination. The patient stated clearly that she was expecting a breast
examination.

Item 3
Original complaint: “I do not wish for my complaint to be seen as one of sexual
abuse against Dr Ayling…”
Ayling Report: “In [Patient I’s] view she had made it clear to Mrs Jed that
Ayling had behaved indecently towards her during the consultation. For her part,
Mrs Jed remembers that Patient I was distressed…but insisted that there was no
suggestion of sexual misconduct on Ayling’s part.” [1/p.91/ §3.320]
Comment: Patient I’s letter began: “Following my conversation with your
secretary…please find below a comprehensive list of my complaints that I hope
will be of some use to you.” It is possible that someone had tried to convince
Patient I prior to the writing of her letter to make her complaint into a
complaint about sexual abuse. It was clearly intended to phase out the Clinical
Assistant posts when the new NHS trust was to come into existence on 1.4.94 and
an allegation of indecent assault would have been useful to management as a
means of terminating a contract.

677. Despite the presence of incontestable contemporaneous evidence that the
Inquiry said had not been seen by Mrs Jed (Patient I’s former midwife) when the
latter gave evidence at the Inquiry, the Inquiry entertained a new version of
events produced by Patient I over four years after the event and gave it
preference over Patient I’s contemporaneous letter of complaint.

678. The Inquiry then used the later modified version of events to accuse Mrs
Jed of having been unable to recognise the nature of concerns that her patients
were allegedly expressing at the time. The Report went as far as to say that the
Inquiry found it:

“…difficult to accept that a midwife as experienced as Penny Jed was unable to
recognise the concerns that her patients were expressing.” [1/p.93/§3.329]

679. This subjective comment was grossly unfair in the light of the fact that in
1993 Patient I had specifically stated that she was not making a complaint of
sexual abuse.

680. The case of Patient I and the Inquiry’s ‘finding’ that her modified version
of events was correct were crucial to the argument that formed the basis for the
decision by Mr Justice Gray in Godden & Others v Kent & Medway Strategic Health
Authority ([2004] EWHC 1629 (QB) ) to allow former patients of the Claimant to
sue the Health Authority in 2004, as explained at §22:

“I have to proceed on the assumption that the Claimants would be able to
establish at trial…that by 1993 there existed a wealth of information, known to
some at least of the health care workers employed by the first defendant, about
the kind of threat which Dr Ayling posed for women under his treatment.”

681. The Claimant believes this example highlights concerns that the Inquiry’s
conclusions and reporting of evidence were unfair not only to the Claimant, but
to any health professional who maintained at the Inquiry that they had not been
the recipient of a specific complaint allegedly made directly to them in the
past.

682. This specific concern was expressed in submission 33 made on behalf of the
Claimant to the Secretary of Stated in October 2006 [4/tab 3/p.24]).

683. Government proposals that failure of a health professional to report the
suspected criminal activity of a colleague should itself be treated as a
disciplinary matter exposes health professionals to great unfairness if their
evidence that is coherent with a patient’s initial complaint is to be rejected
when the patient subsequently changes their story. The proposals in the 2003
paper Making Amends on this issue are well summarised below:

“Making Amends [the Consultation Paper by Sir Liam Donaldson setting out
proposals for reforming the approach to clinical negligence in the NHS, 2003]
proposes that a NHS redress scheme should be established to investigate clinical
incidents and the harm that is alleged to have resulted from them…Conditions
should be in place that allow a ‘duty of candour’ by health care professionals,
yet exempt them from disciplinary action when they report incidents with a
patient’s safety in mind. Such a duty and exemption should be introduced in
legislation requiring all health service practitioners and managers to notify
patients where they become aware that a negligent act or omission may have
occurred. The exceptions would be if a practitioner has committed a criminal
offence or when it would not be safe for the clinician to continue treating
patients.” (Fair Play and Foul?, John Elder, Klaxon books, 2005)

684. The case of Patient I also raises concerns as to what use will be put
records of complaints kept in the personnel files of health professionals if the
complainant’s original version of events is to be discarded in order to favour
later allegations.

685. The Claimant cannot be held responsible for the mistaken impression that
the Inquiry did not hold any credible contrary evidence to the allegations
described in the Inquiry’s Report. The Claimant further believes that the
Defendant relied heavily on the assumption that such evidence did not exist and
this played a material part in the Defendant’s reasoning when making the
decision to establish as fact alleged events and qualify them as “crimes” in the
Command Paper.

686. LEGITIMATE EXPECTANCY

687. It is the Claimant’s belief that a legitimate expectation arose from the
wording of the Inquiry’s Terms of Reference and Inquiry Procedures
[1/p.255-260/Appendix 8 & Appendix 9] which led potential witnesses to the
Inquiry to believe that giving their assistance to the Inquiry and telling the
truth would not be to their detriment or that of the person on whose behalf they
were acting.

688. However, it is the Claimant’s belief that some witnesses were unfairly
criticised by the Inquiry whom the Claimant contends substituted subjective
assessment for the intended proper process of “testing of evidence where this is
required and the exploration of disputes of fact or controversial issues”
[1/p.258/§17].

689. This appears to have been particularly the case in the description and
assessment of the evidence given by Mr Fullman, Dr Farebrother, Penny Jedd and
Mr Homeshaw (see [4/tab 3/p.90-91/submission 33]).

690. Not long after the Inquiry Preliminary Meeting in November 2002, the
Claimant’s daughter Joan travelled to London for a meeting with [Counsel to the Inquiry]. The meeting lasted nearly three hours and took place in
the presence of Joan’s mother (not the Mrs Ayling referred to in the Ayling
Report) who practised as a midwife both in the hospital and community settings
for over forty years from the end of the 1950s through to the end of the 1990s.

691. During the meeting with [Counsel to the Inquiry], the Claimant’s daughter expressed the
concerns she had in the light of the evidence which was already within her
knowledge and the unfair practices she had seen during the civil proceedings
against the Claimant in early 2002.

692. [Counsel to the Inquiry] indicated to the Claimant’s daughter that the Inquiry was
particularly keen to obtain any contractual evidence concerning the Claimant’s
career. As much documentation as possible, of this nature, was provided to the
Inquiry in January 2003 and was complemented as documentary research and sorting
of papers unearthed further documents.

693. However, in the spring of 2003 the Inquiry wrongly addressed to the
Claimant’s daughter a fax that was intended for the London Hospital, with a view
to contacting a potential witness to the Inquiry. The covering letter was
misleading and the evidence “enclosed” for the London Hospital (that had been
provided to the Inquiry by the Claimant’s daughter) was incomplete, thereby
giving a completely false impression of the contemporaneous context as described
in the covering letter.

694. The Claimant’s daughter was so shocked by such selectively misleading use
of the documents she had sent to the Inquiry to assist it in establishing the
truth, that on 15th April 2003, just prior to the commencement of the Inquiry’s
oral hearings, she wrote to the Secretary of State for Health saying she was:

“…concerned that documentary evidence that I provided to the Inquiry is not
being used in an independent manner.” [4/tab 2/p.44]

695. When the Inquiry Report was published in September 2004 the Claimant’s
daughter was again totally shocked to see how the Inquiry had presented the
evidence she had provided in connection with a complaint about a hospital
midwife by Patient J [1/p.80-81/§3.266-3.268].

696. The complaint was totally misrepresented so as to give it a whole new
operation, in much the same way as documents are fraudulently tampered with to
give a false impression.

697. The general effect this had on the Claimant’s daughter was to feel that the
Inquiry must have been in dire need of substance to stoop to such low tactics.
The subsidiary effect this had on the Claimant’s daughter was to confirm the
impression that the Inquiry had been far from impartial in its assessment of the
evidence she had provided which effectively showed that:

i) some hospital midwives were acting unprofessionally when dealing with
pregnant patients;

ii) the Claimant had helped Patient J to navigate the complaints system by
referring her to the Community Health Council; and

iii) management had dragged its feet over dealing with Patient J’s complaint and
failed to take steps to stop rumours about the Claimant prior to the non renewal
of his contract in 1994 (the day before the new NHS Trust came into effect) that
the patient had shown in her letter to be unfounded.

698. By failing to provide the whole context of Patient J’s complaint about the
hospital midwife, the Inquiry substituted the most obvious interpretation of the
references to the Claimant within the complaint for an extremely narrow
interpretation that suited the Inquiry’s agenda. Patient J had been a GP patient
of the Claimant for a number of years in 1993 when she attended the Ante-Natal
Clinic in Folkestone, but the Inquiry presentation inferred that she had not
seen the Claimant before. Patient J did not make a complaint in any manner about
the Claimant and was not a participant to the Inquiry. Her complaint did not
raise any issue about the conduct of the Claimant but about the conduct of the
midwife.

699. The case of Patient J was pointed out to the Defendant in the Claimant’s
submissions in October 2006 [4/tab3/p.106/submission 41/§xiv) and the Claimant
believes that it is incumbent upon the Defendant to correctly present the
complaint by Patient J as primarily concerned with the behaviour of the midwife
(inappropriate touching and comments) and subsidiarily as one that supported the
Claimant, whom Patient J knew well as he was also her GP.

700. It is further argued by the Claimant that there was a legitimate expectancy
on the part of the Claimant and the public that if the Ayling Inquiry became
aware of a propensity to lie on the part of some of the witnesses this would be
taken into account by fair reporting and not be taken into account in a manner
that would vindicate false claims.

**********************************
425. APPARENT POWER AND PROTECTION OF THE LEGAL REPRESENTATIVE OF PURPORTED VICTIMS OF THE CLAIMANT

426. As has already been stated, subsequent to the civil proceedings against the Claimant in 2002 that were held in open court, the firm Harman & Harman objected to material produced for those hearings being provided to the Inquiry despite the fact that the involvement of the firm’s clients with the Inquiry arose from the same allegations as those that had given rise to the civil claims.

427. As has also been stated, prior to the publication of the findings of the Ayling Inquiry, Particulars of Claim were filed by the firm Harman & Harman in March 2004 in civil proceedings against the Health Authority. These contained Particulars of Incidents of which the Claimant believes the firm obtained knowledge by purporting to be assisting the Ayling Inquiry. The said Particulars of Claim also contained numerous ‘sexed up’ versions of previous allegations and various additions in which it was claimed that concerns had been expressed to health organisations or employees of the Health Authority who had allegedly failed to take any action. The said Particulars of Claim also contained a stronger affirmation of an alleged action in relation to the allegations of Patient X that Judge Poulton had specifically said in February 2002 could not be ascertained from the wording of the original statements.

428. It has also been mentioned that the Ayling Inquiry worded its Report in such a manner that it inferred the versions of events as presented in the Particulars of Claim produced by Harman & Harman in March 2004 were correct, despite the fact that the Inquiry had evidence in its possession to invalidate a number of the said versions of events.

429. In the light of the above, the Claimant believes it is in the public interest to know exactly which version of events corresponds to evidence that was given to the Inquiry by the same women. Considering the large amounts of public funds that have been spent in furthering the case of complainants against the Claimant, it is also in the public interest to be aware of whether the Ayling Inquiry found itself under pressure to present a version of events that was not factually correct and if so, from whom and for what reason.

430. Exactly one year after the production of the document produced by Sarah Harman’s firm referred to above, a legal scandal erupted in March 2005 when Mr Justice Munby found solicitor Sarah Harman to have been in contempt of court in Kent County Council v Mother, Father and B [2004] EWHC 411 (Fam).

431. Justice Munby said the solicitor had showed an ‘unedifying failure to disclose the truth at the right time’ and had ‘displayed a disquieting lack of candour with the court’. As a result of the case Sarah Harman was ordered to pay costs and she handed in her resignation as a recorder.

432. Then in April 2005 the Law Society informed the Claimant’s daughter, who had made complaints about the solicitor Sarah Harman in connection with the Claimant’s case, that it considered her only as an ‘informant’. This was after having encouraged the Claimant’s daughter in 2004 to request the re-opening of former closed complaints and after having received from her two bundles of documentary evidence and video copies of TV footage. The Law Society explained that “an informant is not kept updated on the investigation when it proceeds within the office. Therefore, I should advise that you will not be kept informed during my investigation of the above matters”.

433. In response to this news, the Claimant’s daughter arranged for the Claimant to officially take over the complaints that had been made to the Law Society. As a consequence the Law Society considerably changed its attitude to a number of the complaints, particularly with regards to the claim that Sarah Harman had given misleading information in TV interviews in connection with the Inquiry. The Law Society then engaged in some very convoluted sentences to explain why none of the complaints against Sarah Harman or her firm could be upheld after all, and on 10 November 2005 finally informed the Claimant that all the complaints had been closed [4/tab 9/pp.382-390].

434. Then a few days later, the Claimant learnt that Sarah Harman had been suspended for three months by the Solicitors’ Disciplinary Tribunal for actions that were akin to those that had been the cause for his own complaints to the Law Society.

435. Sarah Harman was found guilty of improperly or unprofessionally disclosing documents to a third party, misleading or attempting to mislead the High Court, and not acting in good faith with the solicitor she was opposing in the case. She was also found guilty of conduct unbefitting a solicitor to the extent that the Tribunal was concerned about the effect of her conduct on the reputation of the profession.

436. Not only did Sarah Harman object to documentation emanating from her firm in connection with civil proceedings arising out of the same alleged events as those purportedly related to the Inquiry by the firm’s clients but she also objected to providing the Law Society with documentation relating to her dealings with Patient C in connection with the Ayling Inquiry.

437. In its letter to the Claimant on 10 November 2005, the Law Society stated that “Miss Harman…raised concerns that the information [the Law Society] requested as further evidence would breach the confidentiality between her and her clients”. It was also stated that the Law Society was “not in a position to disclose the terms of all of Miss Harman’s evidence” that had been provided to the Law Society.

438. The evidence referred to here was sent to the Law Society by Miss Harman in connection with a specific complaint resulting from the fact that a BBC TV reporter had informed the Claimant’s daughter in July 2003 that Patient C had told him she had obtained compensation from the Health Authority thanks to a document that the Claimant’s daughter had provided to the Inquiry.

439. The Law Society also informed the Claimant on 10 November 2005 that Sarah Harman had “provided correspondence from Mr [T] of the BBC in which he indicated that he had no record of speaking with Miss Ayling on 2 September” [4/tab 9/p.389/§2].

440. However, in his reply to the Law Society on 22 November 2005 the Claimant wrote:

“[My daughter] stands by her evidence provided to the Law Society concerning the comments made to her by [Mr T] about [Patient C]. you will find enclosed a copy of a letter [my daughter] sent to [Mr T] on Wednesday 3rd September 2003 further to the telephone conversation on Tuesday 2nd September 2003. It mentions documentation concerning [Patient C] because of the claim she had allegedly made to [Mr T] which he passed on to [my daughter] during their telephone conversation on 2nd September 2003.

I shall also be providing the Legal Ombudsman with an audio cassette containing a recording of two messages left by [Mr T] on [my daughter]’s answerphone on Monday 1st September 2003. These indicate unequivocally that there was contact between [Mr T] and [my daughter] on that date. They also indicate unequivocally that [Mr T] intended to contact [my daughter] again on Tuesday 2nd September 2003.” [4/tab 9/p.379/§38-39].

441. The Claimant believes the above extracts appear to suggest that the solicitor Sarah Harman used a media contact to obtain unfair advantage over the Claimant in a complaint about her firm’s dealings with Patient C in connection with the Ayling Inquiry.

442. When the Claimant had written to the Legal Services Ombudsman, the Law Society offered to pay him a “compensatory payment of £150”, purporting to express concern that there appeared to be two separate periods when the Claimant’s daughter and subsequently the Claimant had not been kept informed of the development of the complaint. The Claimant declined this offer in a letter dated 23 January 2006 to the Law Society in which he also wrote:

“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.”

443. When Sarah Harman was criticised by Judge Munby in March 2004, her sister Harriet Harman, then Solicitor General, was prompted to make a House of Commons statement following an urgent question by her Tory shadow, Dominic Grieve. Harriet Harman made a statement in which she defended her own and her sister’s actions in connection with the case. Then, seven months later Harriet Harman announced a change in the law that led the Mail on Sunday to head an article with “Harman set to scrap law that caught her out”.

444. Harriet Harman is now Minister of State for Constitutional Affairs and is involved in all government policy that is directly related to the question of inquiries. She was therefore directly involved in the publication of the White Papers presented to Parliament on 21st February 2007 by the Defendant.

445. Indeed, the paper Learning from tragedy, keeping patients safe has a foreword signed not only by the then Secretary of State for Health (Patricia Hewitt), but also by the Minister of State for Policing, Security and Community Safety (Tony McNulty) and the Minister of State for Constitutional Affairs (Harriet Harman) in which it says the following:

“Today we are publishing a full response to the [Shipman] Inquiry’s fifth Report, covering also the related recommendations of the Ayling, Neale and Kerr/Haslam Inquiries; a major White Paper with proposals for the reform of the regulation of health professionals;” [2/tab 3/p.3-4]

446. The Claimant is not actually suggesting that the personal connection between Sarah Harman and Harriet Harman has protected the former from scrutiny of her dealings with the Ayling Inquiry.

447. However, what the Claimant is suggesting is that until such time as the transcript of the oral hearings of the Ayling Inquiry and the material referred to therein has been made public (including the transcript of the cross-examination of witnesses by Sarah Harman and any other submissions she made on behalf of her clients during those hearings), the Claimant’s submission that information was given to the Inquiry or withheld from the Inquiry that led it to make false findings cannot be contested.

Joan AYLING left an annotation ()

Posted on 5th July 2017:
The date limit for a response to the request for an internal review was 3rd July. No response has to date been received.
Below are the relevant e-mail exchanges :

********************************************************************
5/6/2017 11:42
Dear Ms Ayling,
Could you please confirm if you are requesting an internal review of the handling of your FOI request?
If you are requesting an internal review, could you please provide the FOI reference number of your original request?
Regards,
[--]
[--]
Freedom of Information Team
Department of Health, Room G18, Richmond House,
79 Whitehall, SW1A 2NS
Follow us on Twitter @DHgovuk

********************************************************************
5/6/2017 18:58
Dear Mr [--],
If asking for an explanation of why two different and contradictory reasons have been provided by the DoH for refusing access to the same material by two separate persons constitutes a request for an internal review, then yes, I am asking for an internal review.
The Information Request Reference is FOI-1082690 (see response by your Mr BUCHAN on the whatdotheyknow.com website dated 16th May 2017).
Yours sincerely,
Joan AYLING

********************************************************************
6/6/2017 15:39
Dear Ms Ayling,
I have accepted your request for internal review of the handling of FOI request 1082690.
I will endeavour to provide you with the outcome of the review within 20 working days, in this case the deadline will be 3 July 2017.
Thanks,
[--]
[--]
Freedom of Information Team
Department of Health, Room G18, Richmond House,
79 Whitehall, SW1A 2NS
Follow us on Twitter @DHgovuk

Shewbridge, James, Department of Health and Social Care

1 Attachment

Dear Ms Ayling,

I have completed our internal review of FOI 1082690. Please find attached my response and I would like to apologise for the length of time it has taken to issue this.

Kind regards,
James

James Shewbridge
Freedom of Information Team
Department of Health and Social Care
39 Victoria St
London SW1H 0EU

show quoted sections

Dear Shewbridge, James,
Thankyou for your reply. I agree, especially considering that you give me no real information, that the delay for your reply has been unacceptably long.
The purpose of having made these requests on this website is to have put them into the public domain, so that the persistent refusal by the Department of Health to provide any information about the evidence that was provided to the Ayling Inquiry, and the refusal on a discretionary basis of the Department of Health to have provided my father Clifford AYLING with information to which he is entitled (due to his status of having been the subject of allegations made against him of which he had no knowledge whatsoever and that were made for the first time within the proceedings of the Ayling Inquiry ). The Ayling Inquiry, despite having obtained the powers of compulsory attendance prior to the end of the evidence-giving phase of the inquiry (and having further failed to inform the court of this fact in a hearing where Clifford Ayling was trying to obtain the right to participate in the Inquiry), failed singularly to have Clifford AYLING brought to the inquiry to give evidence and thereby be provided with information about allegations that had been made against him .
As I have said before, the material I have will at some point in the future be made public. The case is very complex and the volume of documentation to be checked is so great that it may have to wait until I am retired. Your response will not serve to make me give up, it just serves to prove that the persistent covering up of material provided to the Ayling Inquiry serves only to strengthen the argument that the Ayling Inquiry Report that was signed by Anna Pauffley is full of knowingly and willingly false and misleading accounts of that evidence.
You cannot expect the public to have confidence in government inquiries if it is totally impossible to inspect any of the evidence that was provided to such inquiries, particularly when the participants who were the cause of the setting up of the inquiry themselves went to the High Court because they wanted the inquiry to be a public inquiry, and a judge explained that any of the evidence given during the oral evidence-giving stage of the inquiry could be related to the media by the participants themselves.
I will at some point be making a further separate request through this website as I have found a letter in Clifford Ayling's documents from the Department of Health which it would appear was never followed up.
Yours sincerely,
Joan AYLING

Joan AYLING left an annotation ()

This is a response to 'Charlie Brown' who has contacted Joan AYLING via the whatdotheyknow website asking :

1) Why I made a request to the Department of Health & Social Care for the release of the transcript of the oral proceedings?
2) Whether I believe that my father is totally innocent of all allegations/ convictions of indecent assaults made against him?
3) What about the allegations of 'child abuse'?
4) Why do I want "all of this again back in the public domain?!"

My response is as follows:

1) I have requested that the oral transcript of the evidence taking phase of the Ayling Inquiry be made public because the Ayling Report is known to include major errors of fact that can only have been willingly made. I believe it is in the public interest to know that public funds have been used to produce a willingly false and misleading report, on the back of which a very large settlement made with no admission of liability was paid out of public funds to the very women who gave evidence at the Ayling Inquiry.

2) I know that my father is innocent of the allegations made against him because I have seen evidence that supports this and I am aware that the Ayling Inquiry was given further evidence that supports this too, but which was wilfully suppressed. I have also seen evidence that was suppressed by the Police/CPS and not given to Clifford Ayling's defence team. That evidence (some of which was unwittingly provided for the first time in 2002 by solicitor Sarah Harman) shows that Clifford Ayling's criminal conviction in December 2000 was unsafe.

3) As far as I am aware Clifford Ayling has never been accused of child abuse. If 'Charlie Brown' has any knowledge of any such allegations I suggest they give further details. I am aware that one woman who made allégations also tried to get her young daughter involved in the case but this went nowhere (this woman's allegations were moved down the indictment because it was not strong and there would have been a very strong witness for the Defence that the CPS did not wish to have heard, I can only presume). The woman I am referring to trawled other women and notably, the social worker who gave the name of this woman's daughter to the police, then went on to make an allegation herself. However, when the social worker went to the police she failed to inform them that she had been involved in this way with another complainant.

4) This case has never left the public domain. You just have to type into Google the words 'Clifford Ayling Report' to see not only that the search returns many pages of links, but links for documents as recent as 2016-2017 that refer to the Ayling Report, notably with reference to chaperone policy and consent for examinations. When public health policy has been introduced on the basis of a factually wrong report, it is important that the public should know that this has happened, and why the Secretary of State for Health allowed it to happen. Many cases of miscarriages of justice come to light decades after the wrongful conviction. I can only suggest that 'Charlie Brown' may be feeling nervous in the light of the recent scandal highlighting the endemic failure by Police teams and the CPS to disclose important evidence to Defence lawyers in many rape cases, in order to secure convictions that they know, or should have known, are unsafe. My father has always maintained his innocence and I have the right to continue to defend his case.

I hope this answers Charlie Brown's questions. I am assuming 'Charlie Brown' is a pseudonym and therefore do not wish to divulge my e-mail address to an unknown person by replying directly through the messaging box.

Joan AYLING left an annotation ()

This is a further response to 'Charlie Brown' who has again contacted Joan AYLING via the whatdotheyknow website saying :

"Joan AYLING,
Your father is GUILTY ! I feel there should be another investigation into your fathers past conduct, so to speak. Myself would like to know how many intimate examinations your father actually carried out on girls under the age of sixteen? And how many of those girls were also made to get completely naked? Which your father is 100% GUILTY OF! Your father has left nothing but a long trail of devastation! The fact that your father has asked the judge to grant him Declaratory Relief & too finally settle the on going litigation, when himself "deep down" knows he is GUILTY , is SCANDALOUS and somewhat disturbing, to say the least!
Yours,
charlie Brown"

My response is as follows:

1) I would indeed welcome too a re-opening of the investigation that was carried out following allegations made against Clifford Ayling. The evidence that is now available would show that the police investigation was biased, the CPS withheld evidence it should not have withheld, the Police used leading questions when taking statements and made decisive decisions in conjunction with the CPS not to interview vital witnesses, notably chaperones (including hospital nurses) who had been identified as being present at examinations when women were claiming to have been abused.

2) I responded in my last reply to the question of allegations of child abuse. I am not aware of any allegations of child abuse made against Clifford Ayling.

3) The question of allegations of Clifford Ayling having made patients strip naked is a pertinent one and falls clearly into the domain of ‘sexed up’ statements. The allegation made in Count 11 at Clifford Ayling’s criminal trial centred on this question and led to an acquittal. I will refer to the woman who made this allegation as ‘Count 11’. When Count 11 make her first statement to the East Kent Health Authority on 18 November 1998 she said: “He showed me behind the curtains and told me to undress…he came in …he did make a comment about me having no clothes on – like he was surprised…”. However, when count 11 made her Police Witness Statement on 14th December 1998 there was no mention of Clifford Ayling having been surprised :“He told me to take all my clothes off at the bottom, I did so….He then said to me, “Have you ever had a breast examination. I told him, “No”. He said, “We’ll do that while you are here”. He then told me to take the rest of my clothing off including my bra, I sat on the side of the couch and did so, I was so embarrassed being completely naked in front of Doctor AYLING I held my top tightly over my bottom half.”.

Despite her allegation having led to an acquittal, Count 11 was quoted in the Ayling Inquiry Report on page 56. She therefore either attended the Ayling Inquiry or provided a statement in which it would appear, again, that the mention of Clifford Ayling having been surprised to see she had removed all her clothing, was suppressed : “I told Ayling about the thrush and he said that he wanted to take a swab. He told me he wanted me to remove all my clothes below the waist. I did so as I had had smear tests before and I knew that this was the common procedure …Ayling then asked me whether I had ever had a breast examination. I told him I had not. He said “we’ll do that while you are here”. He told me to remove the rest of my clothes, including my bra. I sat on the couch and did so. I was very embarrassed at being completely naked in front of Ayling so I held my top tightly over my bottom half.”

Count 11, despite Clifford Ayling having been acquitted in her case (which means he was not guilty) was joined by solicitor Sarah Harman as the ‘5th Claimant’ to the civil group action set up in 2004 (Godden and Others v Kent & Medway Strategic Health Authority). In the Particulars of Claim dated 9th March 2004 produced by the firm Harman & Harman, it said at p.39, §31.18 that “Ayling’s insistence that the Fifth Claimant be completely naked was clinically unjustified and inappropriate.”

On September 10th 2004 a large photograph of ‘Count 11’ appeared on page 7 of the Daily Mail under the title ‘Victims of the molester’. The article said “the GP ordered her to strip naked”. The article did not say Count 11’s allegation had led to an acquittal at Clifford Ayling’s criminal trial.

On September 12th 2004 an article on page 12 of the Kent On Sunday newspaper said that “During his original court hearing, the jury heard that Ayling would force women to strip in front of him for his own sexual gratification”. That is hardly right. For a start, Count 11 said in her first statement that the doctor showed her “behind the curtains” to undress for the examination, and then came in. Secondly, she said he was “surprised” at her having taken all her clothes off.

The article in question carried a photograph of Sarah Harman with 11 women who were amongst the claimants in her group claim against the Health Authority, toasting the publication of the Ayling Inquiry Report which they said vindicated their claims. Count 11 was sitting just behind Sarah Harman.

The Ayling Inquiry will have known perfectly that Count 11 had taken part in Clifford Ayling’s criminal trial and the outcome of each allegation. If the argument is that when a jury finds a person guilty they are guilty, then when a jury finds a person not guilty, they are not guilty. Count 11 cannot therefore be considered as a ‘victim’ and it was wrong of the Ayling Inquiry and the press to portray her as one. Nevertheless, the article said Sarah Harman revealed that 31 women (i.e. her clients in the group claim) “had just received the news that were to get a share of a £350,000 pay-out from Kent and Medway Strategic Health Authority, where the GP practised”. This pay-out was made from public funds with no admission of liability to a number of women, some of whose allegations had never been tried in a court (and even less at the Ayling Inquiry), and even one (Count 11) whose allegations had been tried in a court and had led to an acquittal.

It is unlikely that the Ayling Inquiry ever got to see count 11’s initial statement to the East Kent Health Authority, because Sarah Harman’s firm objected to the Inquiry being provided with any evidence about her clients by me, her firm saying this evidence was “confidential to their clients”. This was set out in a letter sent to me by the solicitor to the Inquiry, Mr. Fitzgerald, on 16th October 2002. So most of what I provided to the Inquiry was sent back to me, with a very careful selection retained that could be presented in a misleading way in the Inquiry Report.

So yes, the way the Ayling Inquiry was conducted and the way Harman & Harman obstructed the Inquiry from having sight of important evidence, was scandalous. Should any investigation be re-opened the evidence that was not seen first time around would certainly get a chance to be aired second time around.

4) Charlie Brown mentions “declaratory relief”. There is little information available in the public domain about the litigation concerning the bankruptcy of Clifford Ayling. Three women were involved in petitioning for the bankruptcy, which was filed in the name of one of the claimants at Canterbury Court in 2002 and backed by statements made by two other claimants in the same proceedings. This leads me to believe that ‘Charlie Brown’ is either one of the 16 claimants in those proceedings, or a person closely connected to them or to Sarah Harman’s firm. These are the amounts (which represented a dividend of 56.78p in the £) as known on 15th August 2006 that were paid out from Clifford Ayling’s assets to the firm Harman & Harman and their clients :

(Note: CFA = Conditional Fee Agreement)
1st claimant (Part 1 proceedings – CFA with H&H) £19,119.16
2nd claimant (Part 1 proceedings – funded by Legal Aid) £15,900.93
1st claimant (Part 2 proceedings – funded by Legal Aid) £8,266.78
2nd claimant (Part 2 proceedings – funded by Legal Aid) £6,326.30
3rd claimant (Part 2 proceedings – funded by Legal Aid) £11,002.87
4th claimant (Part 2 proceedings – funded by Legal Aid) £6,905.55
5th claimant (Part 2 proceedings – funded by Legal Aid) £--- (amount unknown)
6th claimant (Part 2 proceedings – funded by Legal Aid) £7,600.64
7th claimant (Part 2 proceedings – CFA with H&H) £10,265.19
8th claimant (Part 2 proceedings – partly funded by Legal Aid) £7,050.36
9th claimant (Part 2 proceedings – CFA with H&H then funded by Legal Aid) £7,751.70
10th claimant (Part 2 proceedings – funded by Legal Aid) £8,168.53
11th claimant (Part 2 proceedings – CFA with H&H) £8,064.04
13th claimant (Part 2 proceedings – funded by Legal Aid) £10,369.68
14th claimant (Part 2 proceedings – CFA with H&H) £9,801.79
15th claimant (Part 2 proceedings – funded by Legal Aid) £3,330.68
Harman & Harman Solicitors £119,735.98

It is to be noted that payment to the claimants was made to Harman & Harman solicitors under the terms of the Legal Aid conditions. How much money was actually passed on to each claimant by the firm Harman & Harman is unknown. The bankruptcy realised all of Clifford Ayling’s assets and all he has is part of his pension. As far as I am aware there is no ‘ongoing’ litigation as there is nothing more that can be forcibly taken from Clifford Ayling and there are no assets. They were all gobbled up by the bankruptcy. Harman & Harman wrote to the insolvency practitioner on 8th September 2003 saying that “As far as we understand the situation, our sixteen clients represent the overwhelming majority of Ayling’s creditors.” As far as I understand from the figures above, it is Harman & Harman (with £119,735.98 paid to them out of Ayling’s assets) who stood to make the most out of enticing women into joining a group claim against Clifford Ayling.

The fact that there were not as many assets as Sarah Harman kept saying there were is not Clifford Ayling’s fault. When Clifford Ayling said in Canterbury Court that he only had ‘a finite pot of gold’ he was made fun of. When you stitch someone up because you think they are rich but have not checked your facts, you come a cropper. I am afraid Charlie Brown will have to live with that fact of life.

Joan AYLING left an annotation ()

This is a further response to 'Charlie Brown' who has again contacted Joan AYLING a further two times via the whatdotheyknow website saying :

Message 1:
"Clifford Ayling Support Site- Renewal Hearing 28th Nov 2011. Your father has written under COSTS for the judge to exercise his discretion & grant him Declaratory relief & finally settle his litigation .
Declaratory Judgement was refused then? Are you going to keep on trying? Your father also asked if it would be possible to award COMPENSATION to his DAUGHTER considering how her life has been blighted! Guess he means your life? Seems that YOURSELF'S are also trying for a COMPENSATION pay out? Has your father then always denied ever asking any of his female patients to remove all their clothing at any stage during one of his physical examination? You state that you too would welcome a re-opening of the investigation against your father? - Your father is guilty if he is denying he never got any of his female patient completely naked at any stage during an examination! Does he deny this/these allegations?"

Message 2:
"If there is no on-going litigation , what your fighting for then is your father's innocence, and maybe if possible some COMPENSATION too?? As far as i am concerned your father is guilty ! He even made young girls under sixteen years of age completely take their clothing off ! Quite messed up really when he had two daughters of his own! I feel sorry for you because you are also a victim of his abuse in a way... His deceitfulness! He has let you believe & chase for years nothing more than his trail of lies. That really is quite sad really to see a father do that to his own daughter! God Bless Ya."

This is my response :
1) If you read the information on the home page of the Clifford Ayling support website, you will see that I have had no input to the website since 2008. Anything on that website regarding a date after 2008 was written by my father.
2) Unlike the women who made allegations against my father, I have never asked anyone for compensation. My father was offered compensation by the Law Society further to the treatment he received when we made a number of complaints about the solicitor Sarah Harman. That compensation was refused as it was missing the point of the complaints.
3) I personally believe that the bankruptcy against Clifford Ayling was illegal because it rested on an unsafe criminal conviction. I was not involved in Clifford Ayling’s litigation in 2011 and have never to date looked in depth at any of the paperwork concerning it. I will in time. What I do know is that in a statement to the court at some point the insolvency practitioner explained that there was discord between Sarah Harman and some of her clients.
4) You, Charlie Brown, appear to be obsessed with the notion that being examined naked is contrary to good medical practice. I would invite you to seek out the large BUPA advertisements that were in the newspapers in the late 1990’s featuring a naked woman and the caption, “I’m ready for you now, doctor”. BUPA was proning the ‘whole woman’ preventive medicine approach. I personally have been examined whilst naked by a gynaecologist and did not feel that I was being abused in any way. As I have said in my earlier response, the majority of women who made statements of complaint against Clifford Ayling did not claim to have been completely naked at any point during their examination.
4) My father has never tried and has never needed to ‘persuade’ me that he was innocent. The evidence speaks for itself. For example, one woman was presented as being new to Folkestone when she signed on with Clifford Ayling as an adult patient. That does not get past me. Why? Because that woman was born the same year as me and was not only in my class at primary school, but was also at the same secondary school as me. In Folkestone.
Another example: one woman made a statement explaining to the Police that she had gone to the firm Harman & Harman to make a complaint about the hospital, and was told to make a complaint against Clifford Ayling instead as he was her GP. The CPS never disclosed this statement and it did not turn up until the 2002 civil proceedings.
Yet another example: a consultant who attended the Ayling Inquiry told the Inquiry that Clifford Ayling had never worked in the Thanet Antenatal Clinic, yet the Ayling Inquiry Report at §3.63 states there was “a serious incident involving Ayling in the Antenatal Clinic at Thanet », whilst omitting to report the consultant’s evidence. There are many many other examples. I do not need any input from my father to see that people have been lying. The trail of lies zigzags very much from the complainants to their solicitor to the CPS to the Ayling Inquiry and all over the media reports that covered the case.
5) I am not sure what exactly you are trying to achieve by sending me these messages, as you have strayed completely from the subject of my FOI request on this website. I do feel that you seem to be using me as an outlet to vent vindictive feelings that you have for my father. You are free to hold your beliefs, and I would request that you respect mine.

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