Public Policy Is In Favour Of Speaking Easy About Medical Practitioners Without Fear Of Prohibition

The recent decision of Mr Justice Males in Noordeen v Hill and the Health Research Authority highlights the need for people to be allowed to express their concerns about medical practitioners to responsible people without fear of litigation.

Summary

This was an application by Mr Noordeen, a Consultant Orthopaedic and Spinal Surgeon, for a Norwich Pharmacal order against Mrs Hill, chair of the London Stanmore Research Ethics Committee (REC) and the Health Research Agency (HRA), as the body responsible for Research Ethics Committees. Mr Noordeen alleged that he had been defamed by unknown clinicians who had told Mrs Hill that he was using magnetic rods and that children who were given these rods needed more x-rays than children who had been given a previous type of rod.

The facts

Mr Noordeen was a pioneer of a new magnetic 'growth rod' in children with scoliosis. Such rods were inserted into the spine to assist the child's spine to grow straight rather than curved. The new rod could be extended without surgery by means of an external magnet. The rods received a CE mark in Germany after testing on pigs. Mr Noordeen obtained the appropriate clinical governance approval to use these rods at Great Ormond Street Hospital (GOSH).

When Mr Noordeen gave up his position at GOSH in 2010, he was keen to use the new magnetic rods in his position at the Royal National Orthopaedic Hospital (RNOH) and to carry out a research project on their use. In January 2010, he applied to the REC for permission to carry out a patient study.

In Mrs Hill's absence, the REC rejected the application and told him, inter alia, that he may not need ethics approval if his study used the device for the purpose for which it already had CE marking. In fact, this was a mistake and Mr Noordeen did need ethics committee approval. However, the CE marking allowed him to implant the rods in patients so long as he did not do so as part of a patient study into the use of the rods.

Mrs Hill subsequently wrote to Mr Noordeen on 5 May 2010 informing him that the research must always have ethical approval from a REC. Mr Noordeen responded on 10 May 2010 making it clear that he understood the need for ethical approval and that the proposed study was not going ahead.

In June or July 2010, Mrs Hill was told by more than one clinician at RNOH that Mr Noordeen was using magnetic rods and that children who were given these rods needed more x-rays than children who had been given the previous kind...