Andrew Gregg v North West Anglia NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Justine Thornton |
| Judgment Date | 27 February 2018 |
| Neutral Citation | [2018] EWHC 390 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17X04116 |
| Date | 27 February 2018 |
[2018] EWHC 390 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Justine Thornton QC
Sitting as a Deputy Judge of the High Court
Case No: HQ17X04116
Jeremy Hyam QC (instructed by RadcliffesLeBrasseur) for the Claimant
Mark Sutton QC and Nadia Motraghi (instructed by Mills & Reeve LLP) for the Defendant
Hearing dates: 15, 16 and 17 January 2018
Judgment Approved
Justine Thornton QC:
Introduction
In this application, the Claimant, Dr Gregg, a consultant anaesthetist, seeks an injunction restraining the Defendant, the North West Anglia Foundation Trust (“the Trust) from:
a. Proceeding with its disciplinary processes in relation to the deaths of two patients under Dr Gregg's care, pending a decision by the Crown Prosecution Service (CPS) whether to press criminal charges in relation to the deaths;
b. Ceasing to pay Dr Gregg's salary, on the basis of an order by the Interim Orders Panel of the Medical Practitioner's Tribunal Service, suspending his registration to practice.
The Trust counterclaims, seeking a declaration from the Court that it is entitled, by the terms and conditions which supplement the contract of employment, to convene a hearing to consider whether to terminate Dr Gregg's employment on grounds of his ‘failure to hold or maintain a requisite qualification registration or licence to practise’.
It is common ground between the parties that the allegations against Dr Gregg, which centre on whether he inappropriately hastened the death of patients in his care, are serious and that he could face imprisonment in the event of criminal conviction. Alongside investigations by the Trust and the police, Dr Gregg's conduct is subject to scrutiny by the General Medical Council. The multiplicity of investigations against Dr Gregg presents difficulties for the Trust as well as Dr Gregg. The Trust has a complex and sensitive balancing act between patient safety; public expenditure; pastoral care for Dr Gregg's colleagues caught up in events, as well as pastoral care for Dr Gregg himself.
Dr Gregg strenuously denies the allegations against him and wishes to call expert evidence to demonstrate that his conduct was clinically appropriate. None of the investigations has yet considered the defence Dr Gregg proposes to advance.
The Court is not concerned with the underlying allegations against Dr Gregg, but with the content of Dr Gregg's contract of employment; the surrounding contractual documents and their interpretation in the light of legal authorities and the underlying statutory scheme.
The Facts
Dr Gregg is a Consultant Anaesthetist employed by the Trust. He commenced employment for the Trust's predecessor body, the Peterborough and Stamford Hospitals NHS Foundation Trust on 29 September 2003. He is employed pursuant to the terms of a consultant's contract, the most recent version of which is dated 15 January 2007.
Prior to the events currently under scrutiny, there were no previous concerns expressed about Dr Gregg's clinical performance. However, since 2016, serious concerns have been raised regarding his treatment of patients under his care and specifically that multiple deaths may have been hastened as a result of his conduct.
The first patient to give rise to concern was Patient A. Patient A was a 41 year old man who had acute myeloid leukaemia. He was admitted to intensive care over the Christmas period in 2015. On 4 January 2016, Dr Gregg took over as the relevant consultant. The doses of sedative and analgesia given to Patient A were increased and he died 2 hours later. A serious incident report was raised. The Trust's Medical Director, Dr Rege, who gave evidence before the Court, considered the incident sufficiently serious to commission a formal investigation. The General Medical Council and the National Clinical Assessment Service were informed.
The Trust's investigation was deputed to consider whether there was evidence that the decision to withdraw treatment from Patient A was made solely by Dr Gregg rather than in conjunction with the specialist team looking after the patient (as should have been the case); whether the doses of sedation and analgesia used were excessive and whether the death of Patient A was inappropriately hastened.
During the investigation, Dr Gregg was removed from duties in the critical care unit but continued to work as a consultant anaesthetist elsewhere in the hospital.
On 13th April 2016, the investigation was completed and concluded that there was evidence to support a case to answer that Dr Gregg made the decision to withdraw treatment for Patient A on his own rather than in conjunction with the specialist team looking after the patient; that the sedation and analgesia used were excessive and the patient's death was inappropriately hastened.
Accordingly the Trust decided to formally exclude Dr Gregg and notify the police on the basis his conduct crossed the criminal threshold. The police commenced investigations, as did the General Medical Council.
In May 2016, the police requested the Trust not to proceed further with its disciplinary process whilst the police were investigating. Accordingly, the Trust put its disciplinary process on hold.
In July 2016, the police decided that expert evidence was necessary to complete its investigation. In or around early November 2016, the police completed their investigation and decided to treat the death of Patient A as homicide.
On 13 December 2016, Dr Gregg attended an interview with the police under caution where he provided his explanation for the treatment of Patient A in the form of a signed statement. The case was passed to the Criminal Prosecution Service (CPS).
At this stage the Trust's disciplinary proceedings remained on hold pending a decision from the CPS. It appears that the CPS was of the view, at this stage, that the case did not cross the necessary threshold to charge Dr Gregg.
Around this time the Trust became aware of similar concerns in relation to Patient B. In 2013, Patient B suffered a serious heart attack and came under the care of Dr Gregg. He was sedated and died within 4.5 hours of being passed into Dr Gregg's care. The Trust opened an investigation into whether the dose regime for Patient B was consistent with standard practice or whether it was unethical. An initial fact finding assessment concluded that Dr Gregg's conduct was not standard or acceptable practice.
At a meeting between the Trust and the police on 7 February 2017, the police advised that the Trust could continue with its disciplinary process in relation to Patient A. However the police did not want the Trust to take any internal action against Dr Gregg in relation to Patient B at this time as their investigations were at an earlier stage. Accordingly, the Trust postponed its investigation into Patient B. Matters in relation to Patient A also remained on hold.
On 31 March 2017, Dr Gregg was arrested in relation to Patient B.
On 8 May 2017, Dr Gregg attended an interview under caution with the police and provided a signed statement in relation to Patient B. Bail conditions were imposed, including a requirement not to go to Peterborough City Hospital unless as an emergency patient or as directed by a clinician. In addition, Dr Gregg was not to contact witnesses, although this restriction was later removed
On 12 May 2017, the Interim Orders Tribunal of the Medical Practitioners Tribunal Service, the independent adjudicative arm of the GMC met to consider whether to make an order under section 41A(1) of the Medical Act 1983 suspending Dr Gregg or imposing conditions on his registration to practise. Dr Gregg did not attend and written submissions were provided on his behalf by his solicitors. The Tribunal had obtained its own expert report from a consultant in anaesthesia and intensive care which concluded that Dr Gregg's conduct “fell seriously below the standard expected of a reasonable competent consultant anaesthetist”.
The Tribunal suspended Dr Gregg's registration to practice, on the basis an interim order was necessary for the protection of members of the public and in the public interest. The Tribunal's letter to Dr Gregg spelt out the effect of the order:
“ Under section 41C of the Medical Act your licence will be withdrawn for the period of the suspension of your registration. This means that:
• It is not open to you to hold any appointment as a medical practitioner for which registration and a licence are required.”
Following the concerns identified about Patient B, the Trust had reviewed Dr Gregg's care of patients over an eight year period and identified seventeen additional cases of concern. Five of these cases were taken forward by the police for discussions with the CPS.
On 15 June 2017, the police informed Dr Rege that they had no objections if the cases of Patients A and B were addressed as part of the Trust's internal proceedings.
“There are no objections from the police perspective for you to advance your disciplinary proceedings, in particular I do appreciate your concerns regarding the public costs of an extended period of suspension. Dr Gregg is aware of the criminal investigation into the deaths of [A] and [B] and has been interviewed by us. It would therefore cause me no concerns for both these matters to form part of your proceedings (letter from Major Crime Unit to Dr Rege dated 15 June 2017).
The Trust was therefore minded to proceed with its disciplinary processes. However, by letter dated 14 July 2017, the Claimant's solicitors requested that the Trust place the investigation into Patient B's death on hold, pointing to paragraph 12 of Part III of the...
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North West Anglia NHS Foundation Trust v Dr Andrew Gregg
...the QBD was able to hear that claim just two months later, between 15 and 17 January 2018 and, following a reserved judgment ( [2018] EWHC 390 (QB)), the judge made an order dealing with the various issues dated 27 February 2018. As previously noted, she found for Dr Gregg on all the subst......