The panel which heard the tribunal case between Dr Rosalind Ranson and the DHSC says it knows documents were destroyed, has concerns over whether government evidence was concocted and that it has a feeling that other documents remain undisclosed.
Issues with disclosures cast a shadow over the tribunal, with the government continuing to produce documents even during the tribunal itself. These should have been in evidence from October 2021.
The tribunal, chaired by Douglas Stewart, says in its report that disclosure had caused the panel ‘considerable concern throughout and different aspects were raised during oral submissions on the final day of the Hearing’.
It adds: ‘The Tribunal members were left with knowledge that some documents had been destroyed (but not deliberately) and an uncomfortable feeling that others could still exist but remained undisclosed. Serious litigation of this stature should not have to be conducted on that basis.
‘Perhaps the most telling point, as highlighted by Mr Segal, was that most of the documents which undermined the Response had not been volunteered to Dr Ranson as they should have been in October 2021. They had only emerged following her use of the DSAR process. Even that had not been wholly effective.’
So dissatisfied was Dr Ranson and her legal team, Mr Segal, that former interim CEO of the DHSC Kathryn Magson was ‘ordered to swear an affidavit and then be cross-examined at a bespoke hearing on 7th January 2022’.
Mr Segal said that the only explanation for the flaws in initial disclosure was that ‘this had been handled selectively and in the main disclosing only those documents which the Respondent felt supported its case’. While he accepted it was not uncommon for documents to be identified during a trial that may have been overlooked previously, he said it was ‘extraordinary for significant parts of a party’s case to be supported by the ongoing disclosure of documents during the evidence of their main witness’. Something the tribunal agreed with ‘without reservation’.
The report says: ‘Even allowing for the demanding challenges for the AG’s Chambers in handling over 6,000 pages of documents, unfortunately, Dr Ranson is justified in feeling less confident that, she or the Tribunal, had all properly disclosable significant documentation. Fortunately, Dr Ranson was able to succeed in her claims despite her justified concerns about non- disclosure.
‘However, her success might have come easier if, as Mr Segal submitted, there had been no selectivity. Both parties are entitled to feel confident that, when a Court of Tribunal has to come to a decision, all relevant and reliable documents are in evidence.’
One of the people the tribunal is critical of is Director of Public Health Dr Henrietta Ewart. The tribunal notes that it was only when she appeared in the witness box did Dr Ewart produce an exchange of text messages held on her phone.
It says: ‘She volunteered to produce it in support of her evidence of Dr Ranson allegedly ringing her late at night. Besides this lapse in her disclosure of a very material exchange, it points to a concern felt by the Tribunal that, beyond Dr Ewart, there were likely to be perhaps many other text messages that remained undisclosed or which may have been wiped.’
After the hearings had finished, the government disclosed an exchange of emails dating back to August 2020 involving the Testing Pathways which came about because of a question from chairman Douglas Stewart.
The report says: ‘These were of considerable significance because they cast doubt on the evidence of Miss Magson. At face value, one email named Miss Magson as the person who had changed the Testing Pathway, something which she had denied. It was most unsatisfactory that non-disclosure had prevented these emails leading to oral evidence and cross-examination with perhaps additional witness evidence being needed.’
However, Ms Heeley, from the AG’s Chambers said the non-disclosure had occurred because while the government couldn’t initially trace them, the emails did turn up in a search of Manx Care’s systems. There is a problem here, Manx Care didn’t exist at this point.
The tribunal says: ‘As at August 2020, Manx Care was not in existence and neither Mrs Cope nor Mr Foster had even been appointed. The explanation for non-disclosure and why the documents were found belatedly was because they were “under the Manx Care organisational unit” or held by Manx Care. This requires an explanation at the Disclosure Hearing.’
It is this issue that the tribunal says has thrown into question the matter of ‘what else that was transferred still remains undisclosed’. The report adds: ‘The Tribunal is mindful that certain relevant and significant documents were produced by Mrs Cope and Mr Foster concerning March 2021 but the August 2020 documents, produced only post-Hearing leave the Tribunal uneasy as to what else has not emerged The answer could be de minimis through to countless documents for all that Dr Ranson or the Tribunal can know.’
It further goes on to say that ‘somehow’ despite the standard disclosure procedure, the affidavit process and the DSAR (Data Subject Access Request) these documents never surfaced. Again the tribunal says: ‘The deeply unsatisfactory position is that there could be other documents now retained within Manx Care that were or may have been properly disclosable.
‘The panel members are concerned at the inferences arising from this because this may arise in further proceedings in this Tribunal (or the High Court) involving disclosure.’
The tribunal then goes on to list 11 issues it says need resolving:
- The August 2020 documents could only have been put into Manx Care after it was created on 1st April 2021 and thus after the DHSC were aware of Dr Ranson’s letter before action of March 2021 – and perhaps even after presentation of the Complaint dated 8th April 2021.
- Did the Respondent retain copies of everything on its own server?
- What is meant by the “organisational unit?”
- When the disclosure processes outlined above were carried out, can the Tribunal be confident that all due searches were carried out whether the documents remained with DHSC or had been transferred?
- On what date were instructions given (and by whom) for documents belonging to the DHSC and relevant for this disclosure to be transferred?
- On what date were they transferred?
- When the disclosure process was required for October 2021, (a) what enquiries had by then been made of Manx Care as to whether material DHSC documents were now held by them and (b) how or who by, would they be produced? In the instant situation, Dr Ranson is entitled still to be concerned that because she had not asked for an Order for specific disclosure against Manx Care, further documentation that should have been disclosed remains undisclosed. (This might also be so as against the Public Health Directorate and the Office of Human Resources being part of the Cabinet Office. This latter is not to be taken as wilful nondisclosure but rather because of the limited legal ambit of the requirement for standard disclosure).
- If the Respondent, through Miss Magson or otherwise, was aware that documents such as this email exchange had for some, as yet unexplained reason, not continued to be regarded as disclosable DHSC documents, why was Dr Ranson not informed so that the Tribunal could have been invited under Rule 15 for a specific Order to be made for disclosure against Manx Care?
- Was the first time a search for documents held by Manx Care material to the disclosure process (in addition to those now found) made only after Closing Submissions?
- Did Dr Ranson’s DSAR request include documents now held by Manx Care?
- Finally, who should swear an affidavit explaining the full facts and circumstances of what has happened during the disclosure process on this issue and generally? It may need to be more than one person and such deponents will need to attend to be questioned.
The tribunal is largely favourable towards Manx Care CEO Theresa Cope, saying she gave evidence ‘confidence, fairness and without fear or favour’. However it does note one issue in that documents that were stored on her former employer’s servers before she moved to Manx Care that may have been relevant have not been possible to source. However this is not seen as a criticism of here, but the process which should’ve happened to secure the documents.
A deeply serious accusation from Dr Ranson’s legal team was that the government ‘concocted’ documents.
The report notes that during cross examination of dependents, Mr Falkowski (who was representing Dr Ranson at that time) pointed out that certain documents contained ‘obvious material inaccuracies’. This led to chairman Mr Stewart to order that all metadata and further explanations be produced.
During his closing arguments, Mr Segal, who by this stage was representing Dr Ranson, referred to concerns over the authenticity of several documents. One of these was notes from a meeting which said Dr Ranson had attended it, even though she hadn’t been there and wasn’t even employed by the DHSC at that time.
The second and third of these are more concerning. The report says: ‘Z471 was a note of a meeting of the Senior Medical Leadership Team (SMLT). That committee had not existed at the date of the note. The committee had been created only some days later than the date on the note. Additionally, the template for that note had never been used until towards the end of March 2020. The metadata produced as Z474 showed that this document had only been created on 20th January 2022 – just four days before this Hearing.
‘Z475 purported to be minutes of a meeting taken by Ms Nicola Grose, Executive Assistant to Miss Magson. It purported to be a record of a Microsoft Teams Meeting held on 16th March 2020. Firstly, at the date of that meeting, Teams was not even being used by the DHSC and secondly Ms Grose had not taken the minutes as recorded. Thirdly, there were material differences between the apparent minutes at Z475 compared to draft minutes of the meeting appearing at page 1465.’
Subject Access Request
There have been references throughout the tribunal report to the DSAR made by Dr Ranson which led to the disclosure of documents which otherwise wouldn’t have been in evidence. The panel says this was ‘leading to a risk of a serious miscarriage of justice. That risk continued because of material late or non-disclosure’.
The report also notes that some documentation, which was known to exist on Microsoft Teams no longer does exist, with the belief being that it has been deleted.