Barros D'Sa v Walsgrave Hospital NHS Trust
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE DYSON,LORD JUSTICE SIMON BROWN |
| Judgment Date | 18 June 2001 |
| Neutral Citation | [2001] EWCA Civ 983 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/2001/0537 |
| Date | 18 June 2001 |
[2001] EWCA Civ 983
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Blofeld)
The Royal Courts of JusticeThe StrandLondon WC2A
Lord Justice Simon Brown
Vice President Of The Court Of Appeal, Civil Division
Lord Justice May
Lord Justice Dyson
A2/2001/0537
MR P DEAN (instructed by Mills & Reeve, Midland House, 132 Hagley Road, Edgbaston, Birmingham) appeared on behalf of the Appellant
MR D MATTHEWS (instructed by Le Brasseur J Tickle, Drury House, 34-43 Russell Street, London WC2B) appeared on behalf of the Respondent
Monday 18 June 2001
The claimant is a consultant surgeon of considerable experience. The defendants are a hospital trust by whom the claimant is employed. In 1999 he was suspended on disciplinary grounds. Eventually there were disciplinary proceedings under the defendants' disciplinary procedure, which was part of the claimant's contract of employment.
The claimant was charged with two allegations of serious professional misconduct. An inquiry panel under the disciplinary proceedings, chaired by a Queen's Counsel, held a hearing and determined, to put it shortly, that one of the two charges had in part been established and that to that extent the claimant was guilty of serious professional misconduct. That charge related to oppression of a junior doctor. The panel made a strong recommendation, however, that the claimant should not be dismissed. They said this in the second part of their report, paragraph 2.5.4:
"We have no doubt at all that dismissal, having regard to the nature and circumstances of the misconduct we have found and to Mr Barros D'Sa's long and hitherto unblemished service, would be wholly unjustified and could not be regarded as an appropriate disciplinary measure in this case."
They further said said, at paragraph 2.5.6:
"Taking all the relevant facts into account, our conclusion is that the appropriate disciplinary action is a first written warning; and we so recommend."
The defendants then moved towards a disciplinary hearing in consequence of the inquiry panel's finding. It was only with difficulty that the claimant's solicitors extracted disclosure of the second part of the panel's report, which contained their recommendations and to which I have just referred. In addition, the defendants produced a document for use at the disciplinary hearing called a management case, which, under what I regard as the wholly misleading heading of "Mitigation", sought to rely on material, essentially in aggravation, which had not been the subject of any positive finding by the inquiry panel.
The claimant took proceedings in court seeking an injunction to stop this. Blofeld J granted an injunction in the following terms:
"At the disciplinary hearing which is to commence on a date to be fixed by mutual agreement in respect of the finding of serious professional misconduct against the Claimant contained in the Inquiry Panel's reports dated the 6th and 25th October 2000 the Defendant must not rely on:
(a) any allegations relating to the conduct of the Claimant other than those relating to the offence found proved by the Inquiry Panel and the surrounding circumstances of that offence
(b) the contents of the Claimant's letter to Mr James Cunningham MP dated 29th July 2000 referred to in paragraph 26 of the Defendant's Statement of Case dated November 2000."
Blofeld J was persuaded that the part of the management case under the heading "Mitigation" went outside the terms and purpose of the disciplinary procedure, and that it was contrary to natural justice for the claimant to face at the disciplinary hearing material not the subject of any finding by the inquiry panel. This is the defendant Trust's appeal against that order and judgment. Potter LJ gave permission to appeal on 10 April 2001. 7. The facts of this unhappy affair were admirably set out in Blofeld J's judgment and I propose to quote some of them (page 254 of the bundle, page 2 of the transcribed judgment):
"The Claimant is a long-serving consultant general surgeon with high standards of skill, patient care personal and professional integrity. He is 62 years old.
Since November 1997 he has been working as a part-time consultant general surgeon. Originally, this part-time contract was for one year. He was then offered a further four months. On 11th January 1999, however, he was offered and accepted a new contract for five sessions for an unspecified period commencing 31st March 1999. He has worked predominantly, of recent years, at the Walsgrave Hospital. His new contract is with Walsgrave Hospital's NHS Trust, the Respondent to this action. He was suspended by them from duty on full pay on 29th October 1999 and remains so suspended.
At the time of his suspension the Trust alleged that he had intimidated and oppressed three junior doctors. Those proceedings went no further for a certain amount of time, so in January 2000 the Claimant started proceedings in the High Court seeking orders against the Trust that it should either substantiate the allegations of misconduct alleged against him or withdraw them.
In February 2000 somewhat surprisingly the Trust's solicitors informed him that the allegations in respect of two of the junior doctors were not to be pursued. The third one was to be pursued. Another allegation was also brought against him on a day that I have not been told about, but somewhere either late in 1999 or early in 2000. An Inquiry Panel appointed under rule 5.1 of the Respondent's Medical and Dental Staff Disciplinary Procedure was appointed to investigate and report on the two allegations of serious professional misconduct brought again the Claimant. I set them out:
'1. That he failed at a meeting on 23 July 1999 to divulge the true facts surrounding a second operation on patient number LC No B35201. '2. He intimidated and oppressed in September 1999 a junior doctor Mr Abdul-Mageed in relation to matters arising from patient care.'
The Inquiry Panel hearing took place on 22nd to 26th May 2000 inclusive. They produced the first part of their report on 6th October 2000. That report dismissed the first allegation or charge, as I shall call it. The Inquiry Panel found in relation to the second charge:
'Our terms of reference require us to inquire as to whether Mr Abdul-Mageed as a junior doctor was subjected by Mr Barros D'Sa to intimidation or oppression in relation to matters arising from patient care. Our conclusion was that he was not intimidated but that the conduct of Mr Barros D'Sa towards Mr Abdul-Mageed clearly amounted to oppression. He was unfairly and unjustifiably put into a difficult, distressing and embarrassing position when a conflict was raging among the general surgeons and in which he should not have been involved. Whether Mr Barros D'Sa's conduct was in relation to matters arising from patient care is difficult to say.'
The Panel added shortly after that paragraph:
'In our view, the Claimant acted as he did not because of ill will towards Mr Abdul-Mageed, nor because he desired to oppress him; he may not even have realised he was doing so.'
So much for the first part of the report.
The second part of the Panel's report is dated 25th October 2000. There the Panel concluded that the first allegation did not amount to serious professional misconduct. They then turned to the second charge to find:
'We have not been satisfied that the oppression of Mr Abdul-Mageed was "in relation to matters arising in patient care" as alleged, but we see no reason why that part of the allegation should be regarded as an essential ingredient in this case. We are wholly satisfied that the oppression of Mr Abdul-Mageed by the Claimant in September 1999 constituted serious professional misconduct'…
In part 2 of its report the Panel drew attention to the fact that the procedure provides that the Chief Executive, following receipt of part 2 of its report, may decide upon the following disciplinary actions (a) first written warning, (b) final written warning, (c) dismissal. The Panel has a duty under the procedure code to make recommendations. They drew attention to the fact that the suspension of the Claimant had now continued for almost precisely one year and they made the strong comment that it had been a substantial and extended punishment. They continued that they had no doubt at all that dismissal would be wholly unjustified and could not be regarded as an appropriate disciplinary measure in this case. They concluded that the appropriate disciplinary action is a first written warning and they so recommended."
Blofeld J's judgment then considers a request for recommendations in relation to questions of trust and confidence between the claimant and the Trust, and he noted that the Inquiry Panel declined give their concluded views about matters of background of this kind.
Blofeld J then referred to the terms of the disciplinary procedure, and it is necessary for me to do so. The disciplinary procedure is headed "Medical & Dental Staff Disciplinary Procedure". Its very first paragraph says that:
"The procedures set out are designed to ensure that the fullest and fairest consideration is accorded to medical and dental practitioners in the event of incidents or complaints regarding their conduct or competence",
and it is plain, in my judgment, that this whole document is concerned with complaints against the conduct or competence of medical or dental practitioners.
There is a variety of possible...
To continue reading
Request your trial
-
Raj Kumar Mattu v University Hospitals Coventry and Warwickshire NHS Trust
..."charges", being the term preferred by May LJ in the case of Barros D'Sa v University Hospitals of Coventry and Warwickshire NHS Trust [2001] IRLR 691, to which I shall have to return in due course). 22 14. It is Dr Mattu's submission that an allegation that he lied during the course of the......
-
Jan Gryf-Lowczowski v Hinchington Healthcare NHS Trust
...... UK in 1990 when he took up a Research Fellowship at Kings College Hospital in London. There followed two short periods as a Registrar. He was then ...Relying on Barros D'Sa v. University Hospital Coventry and Warwickshire NHS Trust [2001] ......
-
Lauffer v Barking, Havering & Redbridge University Hospitals NHS Trust
...be granted.” 29 Gray J referred to the decision of Morland J in the case of Robb and also to the decision in the case of Barros v D'Sa [2001] IRLR 691. At paragraph 76 of his judgment Gray J went on to accept the substantial financial cost to the defendant Trust in that case of maintaining ......
- Ezsias v North Glamorgan National Health Trust