° HL Maynard v West Midlands RHA 635 Maynard v West Midlands Regional Health Authority HOUSE OF LORDS LORD FRASER OF TULLYBELTON, LORD ELWYN-JONES, LORD SCARMAN, LORD ROSKILL AND LORD. TEMPLEMAN 14, 15, 16, 17, 21, 22, 23 MARCH, 5 MAY 1983 Medical practitioner — Negligence ~ Diagnosis and treatment — Decision to operate ~ Operation involving risk to patient — Conflicting medical opinion as to necessity of operation - Whether negligence if operation supported by body of competent professional opinion. Appeal - Evidence ~ Medical evidence ~ Conflicting medical evidence - Trial judge preferring medical evidence called by plaintiff to that called by defendant ~ Interference with judge's preference — Principles on which appellate court should act. Two consultants employed by the defendant health authority who were treating the plaintiff for a chest complaint thought she was suffering from tuberculosis, but also considered the possibility that she might be suffering from Hodgkin's disease. Accordingly, before obtaining the result ofa test which would have determined whether she was suffering from tuberculosis, they decided to perform an exploratory operation to determine whether she was suffering from Hodgkin's disease. One of the consultants carried out the operation, which showed her in fact to be suffering from tuberculosis and not Hodgkin's disease. However as a result of the operation the plaintiff suffered damage toa nerve affecting her vocal cords which caused her speech to be impaired, such damage being an inherent risk of the operation, The plaintiff brought an action for negligence against the defendant health authority claiming that the consultants had been negligent in deciding to carry out the operation before obtaining the result of the tuberculosis test. At the trial of the action, expert medical evidence was called on both sides concerning whether the operation should have been carried out. The judge preferred the plaintiff's expert evidence and accordingly gave judgment to the plaintiff. On appeal, the Court of Appeal reversed the judge's decision, holding that there had been no negligence. The plaintiff appealed to the House of Lords. Held - Where a plaintiff's claim was based on an allegation chat the fully considered decision of two consultants in the field of their special skill was negligent, it was not sufficient for the plaintiff to show that there was a body of competent opinion which considered that that decision was wrong if there also existed a body of professional opinion, equally competent, which supported the decision as being reasonable in the circumstances, Furthermore, it was not sufficient for the plaintiff to show that subsequent events demonstrated that an operation need not have been performed if the decision to ‘operate was reasonable at the time, in the sense that a responsible body of medical opinion would have accepted it as being proper. It had to be recognised that differences of opinion and practice existed in the medical profession and that there was seldom any one answer exclusive of all others to problems of professional judgment and therefore although the court might prefer one body of opinion to the other that was not a basis for a conclusion that there had been negligence on the part of the defendant doctor. On the evidence, the Court of Appeal had been right to reverse the judge's finding of negligence and the appeal would accordingly be dismissed (see p 636 fg, p 638 deg h, p639 deh, po4ocd and p 642.4 to ¢, post). Dicta of the Lord President (Clyde) in Hunter v Hanley 1955 SLT at 217, of Lord Bridge in Whitehouse v Jordan [1981) 1 All ER at 286 and of Brandon LJ in Joyce v Yeomans[ 1981] 2 Al ER at 26-27 applied. Notes For the standard of care required of doctors, see 34 Halsbury’s Laws (4th edn) para 12, and for cases on the subject, see 33 Digest (Reissue) 262-288, 2162-2330.636 All England Law Reports [1985] 1 AILER Cases referred to in opinions Bolam v Friern Hospital Management Committee (1957]2 All ER 118,[1957]1 WLR 582. g Hunter v Hanley 1955 SLT 213. Joyce v Yeomans [1981] 2 All ER 21,[1981] 1 WLR 549, CA. Watt (or Thomas) v Thomas [1947] 1 All ER 582, [1947] AC 484, HL. Whitehouse v Jordan {1981} 1 All ER 267,[1981] 1 WLR 246, HL. Case also cited b Onassis and Calogeropoulos v Vergottis[ 1968) 2 Lloyd's Rep 403, HL. Appeal Blondell Agatha Maynard appealed, with leave of the Appeal Committee of the House of Lords granted on 17 June 1982, against the decision of the Court of Appeal (Cumming. Bruce LJ and Sir Stanley Rees, Dunn L} dissenting) on 21 December 1981 allowing an ¢ appeal by the respondents, West Midland Regional Health Authority, against the judgment of Comyn J dated 28 July 1980 whereby he gave judgment for the appellant for damages to be assessed in her action against the respondents for damages for negligence by themselves their servants or agents in the performance of an operation or treatment on her at East Birmingham Hospital between 20 July and 14 October 1970. ‘The facts are set out in the opinion of Lord Scarman. d Richard Rougier QC and Raymond Walker for the appellant. Philip Cox QC and Conrad Seagroatt for the respondents. Their Lordships took time for consideration. 5 May. The following opinions were delivered. LORD FRASER OF TULLYBELTON. My Lords, | have had the advantage of reading in draft the speech of my noble and learned friend Lord Scarman, and | agree with it, For the reasons that he gives | would dismiss this appeal. LORD ELWYN-JONES. My Lords, | have had the benefit of reading in draft the speech to be delivered by my noble and learned friend Lord Scarman. I agree with it and for the reasons he gives | would dismiss the appeal. LORD SCARMAN,. My Lords, the question in this appeal is whether a physician and a surgeon, working together in the treatment of their patient, were guilty of an error of professional judgment of such a character as to constitute a breach of their duty of care towards her. The negligence alleged against each, or one or other, of them is that contrary to the strong medical indications which should have led them to diagnose tuberculosis they held back from a firm diagnosis and decided that she should undergo the diagnostic operation, mediastinoscopy. It was an operation which carried certain risks, even when correctly performed, as it is admitted that it was in this case. One of the risks, namely damage to the left laryngeal recurrent nerve, did, as the judge has found and the respondent authority now accepts, unfortunately materialise with resulting paralysis of the left vocal chord, Comyn J, the trial judge, held that the two doctors were negligent. The Court of Appeal (Cumming-Bruce LJ and Sir Stanley Rees, Dunn LJ dissenting) held that they were not. The only issue for the House is whether the two medical men, Dr Ross who was the consultant physician and Mr Stephenson the surgeon, were guilty of an error of judgment amounting to a breach of their duty of care to their patient. Both accept that the refusal to make a firm diagnosis until they had available the findings of the diagnostic operation was one for which they were jointly responsible. The issue is essentially one of fact; but there remains the possibility, which it will be necessary to examine closely, that the judge, although directing himself correctly as to the law, failed to apply it correctly when he came to draw the inferences on which hisHL Maynard v West Midlands RHA (Lord Scarman) 637 conclusion of negligence was based, Should this possibility be established as the true interpretation to be put on his judgment, he would, of course, be guilty of an error of law. In English law the appeal process is a rehearing of fact and law. But the limitations on an appellate court's ability to review findings of fact are severe, and well established, Lord Thankerton stated the principles in Watt (or Thomas) v Thomas (t947] 1 All ER 582, [1947] AC 484; and recently the cases and the principles have been reviewed by this House in Whitehouse v Jordan [1981] 1 All ER 267, [1981] 1 WLR 246, itself a medical negligence case. It is, therefore, unnecessary now to restate them. | would, however, draw attention to some observations by Lord Bridge in Whitehouse’s case and by Brandon LJ ina Court of Appeal case, Joyce v Yeomans [1981] All ER 21, [1981] 1 WLR 549, since they are directly relevant to the problems facing your Lordships in this appeal. Lord Bridge said ((1981] 1 All ER 267 at 286, [1981] 1 WLR 246 at 269): ‘.. . Lrecognise that this is a question of pure fact and that, in the realm of fact, as the authorities repeatedly emphasise, the advantages which the judge derives from seeing and hearing the witnesses must always be respected by an appellate court. At the same time the importance of the part played by those advantages in assisting the judge to any particular conclusion of fact varies through a wide spectrum from, at one end, a straight conflict of primary fact between witnesses, where credibility is crucial and the appellate court can hardly ever interfere, to, at the other end, an inference from undisputed primary facts, where the appellate court is in just as good a position as the trial judge to make the decision.” The primary facts in this case are undisputed. But there are gaps in our knowledge of some details of the medical picture due toa loss of hospital notes. These gaps occur in the critical period during which the two doctors made the decision which is said to be negligent. The gaps have to be bridged by inference. In this task, the trial judge, it must be recognised, had the advantage of seeing and hearing the two medical men whose professional judgment, reached during that period, is impugned, We are not, therefore, at the extreme end of Lord Bridge's ‘wide spectrum’, though we are near it. There is room fora judgment on credibility for the reasons given by Brandon LJ in Joyce v Yeomans [1981] 2 AI ER 21 at 26-27, [1981] 1 WLR 54g at 556 where, speaking of expert evidence, he made this comment: “There are various aspects of such evidence in respect of which the trial judge can get the “fecling” of a case in a way in which an appellate court, reading the transcript, cannot. Sometimes expert witnesses display signs of partisanship in a witness box or Jack of objectivity. This may or may not be obvious from the transcript, yet it may be quite plain to the trial judge. Sometimes an expert witness may refuse to make what a more wise witness would make, namely proper concessions to the viewpoint of the other side. Here again this may or may not be apparent from the appellate court, although plain to the trial judge. I mention only two aspects of the matter, but there are others.’ These are wise words of warning, but they do not modify Lord Thankerton’s statement of principle, nor were they intended to do so. The relevant principle remains, namely that an appellate court, if disposed to come to a different conclusion from the trial judge on the printed evidence, should not do so unles satisfied that the advantage enjoyed by him of seeing and hearing the witnesses {s not sufficient to explain or justify his conclusion. But if the appellate court is satisfied that he has not made a proper use of his advantage, ‘the matter will then become at large for the appellate court’ (see [1947] 1 All ER 582 at 587, [1947] AC 484 at 488). The only other question of law in the appeal is as to the nature of the duty owed by a doctor to his patient. The most recent authoritative formulation is that by Lord Edmund- Davies in the Whitehouse case. Quoting from the judgment of McNair J in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 at 121, [1957] 1 WLR 582 at 586 he said ((1981} 1 All ER 267 at 277, [1981] 1 WLR 246 at 258):638 All England Law Reports {1985} 1 AER “The test is the standard of the ordinary skilled man exercising and professing to have that special skill.” If a surgeon fails to measure up to that standard in any respect (“clinical judgment” or otherwise) he has been negligent... (Lord Edmund- Davies's emphasis.) The present case may be classified as one of clinical judgment. Two distinguished consultants, a physician and a surgeon experienced in the treatment of chest diseases, formed a judgment as to what was, in their opinion, in the best interests of their patient. They recognised that tuberculosis was the most likely diagnosis. But in their opinion, there was an unusual factor, viz. swollen glands in the mediastinum unaccompanied by any evidence of lesion in the lungs. Hodgkin's disease, carcinoma, and sarcoidosis were, therefore, possibilities. The danger they thought was Hodgkin's disease; though unlikely, it was, if present, a killer (as treatment was understood in 1970) unless remedial steps were taken in its early stage. They therefore decided on mediastinoscopy, an operative procedure which would provide them with a biopsy from the swollen gland which could be subjected to immediate microscopic examination. It is said that the evidence of tuberculosis was so strong that it was unreasonable and wrong to defer diagnosis and to put their patient to the risks of the operation, The case against them is not mistake or carelessness in performing the operation, which it is admitted was properly carried out, but an error of judgment in requiring the operation to be undertaken. ‘case which is based on anallegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that theirs was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken it was reasonable in the sense that a responsible body of medical opinion would have accepted it as proper. I do not think that the words of the Lord President (Clyde) in Hunter v Hanley 1955 SLT 213 at 217 can be bettered: ‘in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion diflers from that of other professional men .,. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care..." I would only add that a doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Differences of opinion and practice exist, and will always exisi, in the medical as in other professions, There is seldom any one answer exclusive of all others to problems of professional judgment, A court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence. (His Lordship then considered the facts and evidence in detail and continue At the trial and in the Court of Appeal there were two issues: causation and negligence. The judge decided both in favour Ot ehe plaintiff appellant. The Court of Appeal had no hesitation in upholding the judge on causation but reversed him on negligence. Thus it is that the only issue now is negligence. On this the judge's conclusions were that the operation was unnecessary, wrong, and in the circumstances unreasonable and a breach of the duty of care. He found that Dr Ross instigated the operation and that Mr Stephenson in failing to object to it and in sharing the decision was also in breach of his duty of care, The judge accepted the evidence of Dr Hugh-Jones, the appellant's principal expert witness, that it was almost certainly a case of tuberculosis from the outset and should have been so diagnosed, and that it was wrong and dangerous to undertake the operation. His detailed findings against Dr Ross were that he should not have used the operation where the right diagnosis was almost certainly tuberculosis, and that he should at the very least have waited for the pathological reports on the sputum, which in factHL Maynard v West Midlands RHA (Lord Scarman) 639 turned out to be positive. Dr Ross's defence that because of the risk of Hodgkin's disease he could not delay was rejected by the judge on the grounds that a delay of four to six weeks, up (0 ten at maximum, would not have mattered and that the fear of Hodgkin's disease being present was not a reasonable fear in the circumstances. The judge recognised that the defence had called a formidable number of distinguished experts, amongst whom it was legitimate to include Dr Ross and Mr Stephenson themselves, all of whom expressed a contrary view to his and approved the course of action taken in deferring diagnosis and performing the operation. The judge accepted not only the expertise of all the medical witnesses called before him but also their truthfulness and honesty. But he found Dr Hugh-Jones ‘an outstanding witness; clear, definite, logical and persuasive’. The judge continued: ‘Thave weighed his evidence against that of the distinguished contrary experts. | do not intend or wish to take away from their distinction by holding that in the particular circumstances of this particular case | prefer his opinions and his evidence to theirs.” My Lords, even before considering the reasons given by the majority of the Court of Appeal for reversing the findings of negligence, I have to say that a judge's ‘preference’ for one body of distinguished professional opinion to another also. professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. If this was the real reason for the judge’s finding, he erred in law even though elsewhere in his judgment he stated the law correctly. For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary. My Lords, it would be doing an injustice to the careful and detailed reasoning elsewhere evident in the judgment of the trial judge to dismiss this appeal on the basis of this one passage. But, to borrow a telling phrase from Cumming-Bruce LJ in the Court of Appeal, it certainly suggests that his finding of negligence is ‘vulnerable to attack’. It gives rise to doubt whether he succeeded in making proper use of his advantage of seeing and hearing the witnesses who gave oral evidence. The majority of the Court of Appeal developed a devastating attack on certain parts of the trial judge's judgment, They found that: (1) he failed to understand why Dr Ross expected the sputum tests to be negative; (2) he misunderstood Dr Ross reason for not attaching diagnostic importance to the strongly positive Mantoux test; (3) he failed to understand the reasons in the medical history of the case for Dr Ross's cautious approach to diagnosis; (4) mistakenly finding that the respondent’s experts were wrong in attributing the palsy of the right laryngeal nerve to the disease, he relied to some extent on this finding to discredit their opinion as to the wisdom and appropriateness of Dr Ross's course of action; (5) he mistakenly believed that an enlarged spleen (which the appellant did not have) was commorly an early indication of Hodgkin's disease. My Lords, | will not take up time by explaining in detail why in my judgment each of these criticisms is justified. On points (4) and (5) the judge misunderstood the relevant evidence. On point (3) in preferring the opinion of Dr Hugh-Jones he utterly rejected the evidence of Dr Ross, Mr Stephenson and Dr Davies that the first cause for anxiety in the medical history was the X-ray of 2 July 1970 which showed an enlargement of the mediastinal glands, Dr Ross described it as puzzling, Mr Stephenson as ‘alarming’. And Dr Shieff had noted on 2 July that perhaps there had been a recession followed by an enlargement of the glands. It was, of course, the contrast between the X-ray of 1968 and the X-ray of 2 July 1970 which led Dr Ross, when at a much later date he was discussing the case with the appellant's husband, to describe her condition as one of an ‘enlarging’ gland. The judge made the point that all the X-ray showed was an enlarged gland. This is perfectly true but Dr Ross in July 1970 had no means of knowing whether the enlargement had developed slowly over two years or recently and rapidly: and serial X- rays beginning in July, as was suggested he should have required, would not have given640 All England Law Reports [1985] 1 AllER him the answer and might have led to delay which, if she was suffering from Hodgkin's disease, could have been fatal. On point (2) Cumming-Bruce LJ pointed out, as is the fact, that Hodgkin's disease in a considerable proportion of cases does not convert a positive Mantoux reaction to negative. Though Dr Hugh-Jones's view, that a strongly positive Mantoux was very strong, corroboration of tuberculosis was reasonable, there was room for the other view held by Dr Ross and others that it would not necessarily exclude Hodgkin's disease. Indeed it is plain, if I may make my own comment at this stage, that the judge consistently under- rated the possibility and the dangers of Hodgkin's disease. And so far as sputum tests were concerned, the judge seems to have misunderstood why it was a reasonable view of Dr Ross that in the absence of any evidence of lesion in thelungs (and there was none, even though the possibly of hidden lesions remained it was unlikely that the sputum tests would be positive. It was simply that in the absence of ulceration the infection would not make its way from mediastinum to bronchi or lungs. None of these points are, however, decisive against the judge's finding of negligence, But they strongly suggest that this is a case in which, since the primary facts are not in dispute, the appellate court should review the trial judge's finding. The Court of Appeal was, therefore, justified, | think, to treat the issue of negligence as being at large for it to draw the appropriate inferences and to reach its own conclusion. This it did: and I find the reasoning of the majority compelling, Cumming-Bruce LJ put it in this way. (1) Dr Hugh-Jones thought the appellant's case was a straightforward one of glandular tuberculosis in a West Indian lady: ‘a typical case’. Dr Ross thought the case was not as obvious as Dr Hugh-Jones thought. Dr Ross accepted that glandular tuberculosis without any obvious lesion in the lungs, though very rare in persons of Caucasian origin, was not unexpected in West Indians, though he thought it unusual. He was supported by Mr Drew, a surgeon called for the defence (a witness whom the judge rejected on a ground (point 4) which was clearly mistaken). (2) Hodgkin's disease was certainly unlikely, as Dr Hugh Jones argued, But, if presents menace was so great that Dr Ross was not unreasonable in seeking to establish whether it was present or not. (3) Dr Ross was not unreasonable in refusing to wait for the sputum results before proceeding with the operation. Dr Hugh-Jones appeared to think that a few weeks delay would not matter. But he recognised, as did Dr Ross, that Hodgkin's was an extremely dangerous disease. Dr Ross was strongly supported by the evidence in his belief that, if it was present, treatment was urgent and should be begun before the disease began to spread. The caution of Dr Ross was as reasonable as the confidence of Dr Hugh-Jones. (4) The operation of mediastinoscopy was considered and acknowledged to be a reasonably safe procedure. Like all operations, it has its hazards, both general and particular. One of its particular hazards, by no means frequent, is permanent damage to the left laryngeal nerve, as sadly happened in the case of the appellant. Mr Stephenson had met with no complications in the 30 or more operations he had performed before July 1970. The final conclusion, as expressed by Cumming-Bruce LJ, was that the judge's finding that the decision to operate was unreasonable could not be supported. Had the House not had the benefit of a fine, sustained argument by counsel for the appellant, | would at this stage have concluded my speech by expressing agreement with the views of the majority of the Court of Appeal, I hope I shall be doing no injustice to his argument, presented with a wealth of detail and an understanding of medical problems which | know won the admiration of the House, if I confine myself to a short statement of the reasons which compel me to reject it. Before addressing himself to the medical issues, counsel submitted that it was wrong of the Court of Appeal to interfere with the findings of fact of the trial judge, and that it would be equally wrong of this House to review them. I have already given my reasons for rejecting this submission. It is certainly true that only rarely will the House itself review questions of fact. But the duty to doo does occasionally arise. Cases of professional negligence, where the primary facts are not in dispute, do sometimes require a review of the inferential findings, particularly in a case such as this where chere are grounds for believing that the judge misunderstood some of the expert evidence.> HL Maynard v West Midlands RHA (Lord Scarman) 641 It will be convenient to consider counsel's six medical points in the order in which he developed them. First, he stressed what he called the ‘risk-benefir’ ratio. The difficulty in the way of this point is the existence of a substantial body of professional opinion supporting Mr Stephenson's view that mediastinoscopy was, and is, a reasonably safe procedure. Its particular risks, haemorrhage and palsy of the left laryngeal nerve, were accepted, but their incidence is not high. Benefit from the operation could not be assured in advance: but it did provide the opportunity of direct visual observation of the swollen tissue and the procuring of a biopsy for analysis. These might well have proved to be of great value in either establishing or excluding the existence of Hodgkin's disease in this case. In the event, the operation was inconclusive: but it did enable Dr Ross to decide to proceed with anti-tuberculosis therapy. Counsel described his second medical point as the ‘cardinal question in the case’. It was based on Dr Hugh-Jones's opinion that enlargement of the mediastinal glands without necessarily a lesion in the lung was a typical presentation of tuberculosis in persons of Afro-Asian stock, though rare in persons of Caucasian stock. It was alleged that Dr Ross should have seen the appellant as a ‘classic’ case of Afro-Asian tuberculosis and should have proceeded to a firm diagnosis without calling for a mediastinoscopy. Dr Ross was not unaware of this difference between the two stocks, even though he refused to describe the presentation as a ‘typical presentation’ in a West Indian, His view he expressed in these words: ‘In the West Indian and in some of the Asian and some of the African patients there may or may not be a lesion in the lung, She was unusual in that an adult should present with this [but] it was not unexpected in a West Indian because they do this more often than you would get it in an English person, but, even so, it is an unusual presentation to have enlarged glands like that with an adult.” Dr Ross was not alone in his view. He was described by the judge as a careful, skilful, highly experienced consultant. And his experience lay in Birmingham where there was a substantial ‘Afro-Asian’ population. It cannot be said, therefore, that he was unaware of the presentation, even though he preferred to describe it as ‘not unexpected’ rather than as typical’ or ‘classic’, In this he was displaying, in contrast to Dr Hugh-Jones, a cautious approach to his problem of diagnosis. On the evidence adduced at trial his cautious approach cannot be said to be unreasonable. Counsel's third point related to the three possibilities other than tuberculosis for the appellant's illness which had been mooted in evidence: sarcoid, carcinoma, Hodgkin's disease. Sarcoid and carcinoma could be ruled out, he submitted, as a justification in this case for deferring diagnosis until after a mediastinoscopy. He was, | think, plainly right. He was left with the possibility of Hodgkin's disease, His fourth and fifth points dealt with this, Tuberculosis, he submitted, was almost certain, while Hodgkin's disease was no more than a remote possibility which should not have prevented a firm diagnosis of tuberculosis. Certainly this was Dr Hugh-Jones's view: itis not, therefore, to be considered unreasonable. But neither Dr Ross nor Mr Stephenson agreed: nor did the experts called for the defence. Dr Davies, a distinguished consultant physician, a Fellow of the Royal college of Physicians with continuous experience of tuberculosis over a period of 30 years, said that he would have called in this case for a mediastinoscopy for diagnostic purposes. It cannot, therefore, be said that Dr Ross, faced as he was with the contrast between the 1968 and 1970 X-rays, and aware of the menace of Hodgkin's disease if it were present, which was admittedly unlikely but by no means impossible, was unreasonable in his cautious approach to diagnosis. Further, there were very real differences of opinion amongst the experts as to the significance of some of the matters on which Dr Hugh-Jones relied for his confident diagnosis: notably the ‘strongly positive’ Mantoux test and the absence of an enlarged spleen. Finally, counsel submitted that Dr Ross, if uncertain, should have resorted to other diagnostic aids before using the mediastinoscopy operation, In particular why not wait for the sputum results? Why not arrange for serial X-rays? The answer of Dr Ross, which cannot on the evidence be said to be unreasonable, was that, if Hodgkin’s disease should be present, speed was essential. The judge thought that Dr Ross might have had an ‘idee fixe’ about the possibility of642 All England Law Reports (1985) 1 ANER Hodgkin's disease. This, with respect, is not a possible view of his evidence read as a whole, especially in the light of the judge's own appraisal of him as a witness. Nor is it consistent with the existence of a strong body of evidence given by distinguished medical men supporting and approving of what he did in the circumstances of this case as they presented themselves to him at the time when he made his decision. My Lords, the House in this case has reviewed the evidence. The review has led me to the clear conclusion that the Court of Appeal was right to reverse the judge's finding of negligence. | would dismiss the appeal. LORD ROSKILL, My Lords, I have had the advantage of reading in draft the speech delivered by my noble and learned friend Lord Scarman, | entirely agree with it and for the reasons he gives | would dismiss this appeal. LORD TEMPLEMAN. My Lords, | have had the advantage of reading in draft the speech of my noble and learned friend Lord Scarman, and | agree with it. For the reasons that he gives I. would dismiss this appeal. Appeal dismissed. Solicitors: Halls, agents for Rees Edwards Maddox é Co, Birmingham (for the appellant); Hempsons (for the respondent), Mary Rose Plummer Barrister. Practice Direction COURT OF PROTECTION Mental health — Court of Protection — Practice ~ Application to the court ~ Matters requiring formal application — Trustee Act 1925, 85 36(9), 54 ~ Variation of Trusts Act 1958, 5 1(3) ~ Mental Health Act 1983, 85 96(1)(d)(e)(k), 99 ~ Court of Protection Rules 1984, 7 6, Form B. 1. Rule 6 of the Court of Protection Rules 1984, SI 1984/2035, coming into operation on 1 February 1985, provides that any application to the court, other than a first application for the appointment of a receiver, may be by letter unless the court directs that a formal application shall be made, in which case it shall be made in Form B. 2, In some cases, decisions as to the need for a formal application will be made when the particular case is considered, However, application for the following relief will always require a formal application in Form B: (i) the settlement or gift of any property of a patient pursuant to s 96(1)(d) of the Mental Health Act 1983, other than gifts of amounts falling within the current annual limits for exemption from capital transfer tax, or qualifying for the exemptions for gifts in consideration of marriage or within the patient’s normal expenditure; (ji) the execution for the patient of a will or codicil (5 96(1)(¢) of the 1983 Act); (iii) the exercise of any power (including a power to consent) vested in the patient (s 96(1)(k) of the 1983 Act); (iv) the appointment of a new receiver (6.99 of the 1983 Act); (v) the appointment of new trustees under s 36(9) of the Trustee Act 1925 where the application is made subsequent to or separately from the first application for the appoirttment of a receiver; (vi) the appointment of new trustees under 854 of the 1925 Act; (vii) orders for the execution of deeds of family arrangement (s 1(3) of the Variation of Trusts Act 1958). ‘AB MACFARLANE 31 January 1985 Master.