Ethics committee chairwoman is not obliged to reveal source of concerns about surgeon’s work, judge rules

BMJ 2012; 345 doi: (Published 22 October 2012) Cite this as: BMJ 2012;345:e7130
  1. Clare Dyer
  1. 1BMJ

A surgeon has failed in a High Court attempt to try to find out who made remarks he considered slanderous about him, so that he could sue for defamation.

Hilali Noordeen, an orthopaedic surgeon at the Royal National Orthopaedic Hospital in Stanmore, northwest London, asked the court to order Rosemary Hill, chairwoman of the London Stanmore research ethics committee, to reveal who made the comments to her and what they said.

The remarks made to Hill led Janet Wisely, director of the National Research Ethics Service, to write a letter to the Royal National’s joint medical directors, which “outraged” Noordeen, the court heard.

The surgeon, an expert in scoliosis who previously worked at Great Ormond Street Hospital for Children, had applied to the London Stanmore research ethics committee for approval to do a study on magnetic growth rods.

Developed in 2009, the rods can be extended by the use of a magnet, avoiding repeated surgery. The application had been turned down in February 2010, but the committee had sent him a letter tentatively suggesting that the study might not need ethical approval.

That was incorrect, and the committee wrote to him soon after, correcting its mistake. Noordeen wrote back in May 2010, saying that he realised that he would need ethical approval but assuring the committee that he now had no intention of carrying out the study.

Hill said she was later told by more than one clinician that Noordeen was using magnetic rods and that the children who were given these needed to undergo radiography more often than children given the old kind of growth rod, said Mr Justice Males.

Hill wrongly believed at the time that the rods could be used only as part of a study. In fact, they had received a CE mark (signifying that they conformed with European Economic Area product requirements) and could lawfully be used in clinical practice.

Hill’s concerns were passed up the chain of management to Wisely, who did her own investigation and confirmed that the use of the magnetic rods was lawful. Nor could she find anything to confirm that Noordeen was carrying out the study.

She passed this information to the hospital’s joint medical directors but added, “There is a belief that the study is progressing and further that it is resulting in poor clinical outcomes for children. As I said at the outset I have no evidence to support this statement but in the circumstances feel I must pass on this concern to the trust.”

The judge said that Wisely had rightly not been criticised for writing in these terms, which was “exactly what she would be expected and ought to have done.”

Noordeen told the judge that he was outraged by the letter, but the hospital asked him “not to make a fuss” and “keep a low profile about it.” The trust’s chief executive and director wrote to Wisely, telling her that the concerns had been investigated and been found to be without substance, but Noordeen wrote “threatening and aggressive” letters to Hill demanding to know who had raised the concerns with her and what they had said.

The judge said that he was “very doubtful” whether the statement that Hill said was made to her was defamatory of Noordeen at all. Even if it was, or if the conversation had gone somewhat further, it was “in the highest degree likely that a claim for defamation would be met by a successful defence of qualified privilege.”

It was important, the judge said, that the information was given to Hill in confidence and that “people should be allowed to express their concerns about medical practitioners to responsible people without fear of litigation.” If Hill were required to reveal her sources, “that could have serious repercussions for the work of the health research authority and research ethics committees, because people would be less willing to raise concerns in confidence about doctors, for fear that their names would later be revealed to those doctors [by court orders],” he said.

“It might also discourage people from volunteering to act on research ethics committees if they thought they would be drawn into legal proceedings simply because people raised concerns with them.”


Cite this as: BMJ 2012;345:e7130

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