Dhasmana, R v Secretary of State for Health and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS |
| Judgment Date | 14 February 2001 |
| Neutral Citation | [2001] EWCA Civ 250 |
| Docket Number | C/2000/3593 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 February 2001 |
[2001] EWCA Civ 250
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Scott Baker)
Royal Courts of Justice
Strand
London WC2
Lord Justice Laws
C/2000/3593
MISS B LANG QC (Instructed by Messrs Clyde & Co, London EC3M 1JP) appeared on behalf of the Applicant
MR M FORDHAM (Instructed by Office of the Solicitor, Department of Health, New Court, 48 Carey Street, London WC2A 1LA) appeared on behalf of the Respondent
This is a renewed application for permission to appeal against the refusal by Scott Baker J on 24th November 2000 to grant permission to the applicant to bring proceedings for judicial review in relation to a decision of the Secretary of State contained in a letter of 5th May 2000, to the effect that he had no jurisdiction to entertain an appeal launched by the applicant under paragraph 190 of the National Health Service Terms and Conditions of Service for Hospital Medical and Dental Staff. Gibbs J had on 12th October 2000 refused judicial review permission on the papers. I refused permission to appeal to this court on the papers on 24th January 2001.
Scott Baker J crisply summarised the background facts as follows:
"From January 1986 until the autumn of 1998, the claimant was employed as a consultant cardiac cardiothoracic surgeon at the Bristol Royal Infirmary. He was initially employed by the Bristol and Western Health Authority, but his employment was transferred from 1 April 1991 to the United Bristol Healthcare NHS Trust. The claimant and two other doctors at the Bristol Royal Infirmary were charged with allegations of professional misconduct in respect of paediatric cardiac surgery.
On 29 May 1998 the Professional Conduct Committee of the General Medical Council found the claimant guilty of serious professional misconduct, and on 18 June directed that, for a period of three years, his registration should be conditional on compliance with the requirement that he should not undertake any paediatric cardiac surgery; so he was at liberty to continue to work as an adult cardiac surgeon. The GMC directed that the other two doctors should have their names erased from the register.
The claimant was apparently on special leave during the GMC proceedings, and following meetings with him in August and early September 1998, the Trust decided to dismiss him."
The applicant's contract of employment included this provision:
"The employment is subject to three months' notice on either side but is subject to the provisions of paragraphs 190 and 198 of the Terms and Conditions of Service of Hospital Medical and Dental Staff."
The letter of dismissal included this passage:
"In reaching my decision I should also make it clear that I recognise that your surgical results in the period before the GMC Enquiry were acceptable, as I had confirmed earlier in the meeting. I also acknowledge the many expressions of gratitude and support from patients for your past work.
However my concern has to be with the future and the question of whether you could successfully return to adult cardiac surgery practice in the Bristol Royal Infirmary. I have considered a number of factors. [I interpolate then four factors are set out in the letter.]
…
For all these reasons my judgment is, and Roger Baird and Ian Stone support me in this, that it will not be possible for you to return successfully to work at the BRI.
It is with regret that my conclusion is that I have no option other than to bring your employment in the Trust to an end with immediate effect. Your contract entitles you to 3 months notice but in the circumstances it would be appropriate to pay you in lieu of this notice. Ian Stone will arrange the necessary paperwork and ensure that the appropriate payments are sent to you as soon as possible."
On 15th September 1998 £12,273.51 was paid into the applicant's account as payment in lieu of notice and also to recognise, I understand, just over five weeks' annual leave which the applicant had not taken when entitled to do so.
There was an appeal hearing before the Trust Board on 23rd November 1998. That was dismissed by letter dated 1st December 1998. It was on 7th December 1998 that the applicant lodged an appeal against his dismissal to the Secretary of State for Health and it is this process that has ultimately brought the matter to this court.
The nature of the applicant's case was that his dismissal was unjustified. He had, as it has been put on his behalf, been made a scapegoat for wrongs that occurred at Bristol and he said also that he was entitled to an inquiry conducted by an independent panel pursuant to a certain circular.
Paragraph 190 is part of standard form Terms and Conditions of Service for Hospital Medical and Dental Staff issued by the Secretary of State and the Welsh Office. It is common ground that it formed part of the applicant's contract. The provision most particularly in point is paragraph 190(a), whose material words are as follows:
"… a consultant … or hospital practitioner who considers that his or her appointment is being unfairly terminated may appeal to the Secretary of State against the termination by sending to the Secretary of State a notice of appeal at any time during the period of notice of termination of his or her appointment."
I should also refer to part of paragraph 190(j):
"In the light of the professional committee's advice, the Secretary of State shall, as far as is reasonably practicable, within the period of 3 months of the date of the professional committee having considered the case—
i. …
ii. direct that the practitioner's appointment continue; …"
Then paragraph 190(k):
"The termination of the practitioner's appointment shall not have effect while an appeal duly made in accordance with sub-paragraph (a) or a matter duly referred in accordance with sub-paragraph (d) is under consideration."
I should also read paragraph 197 in part:
"These arrangements shall not prevent:
a. …
b. …
c. either party waiving its rights to notice on any occasion, or accepting payment in lieu of it; …"
There was a good deal of correspondence and consultation, but at length the Secretary of State wrote the letter of 5th May 2000 which is in form the subject matter of the prospective judicial review. In that letter this was stated:
"I am writing on behalf of the Secretary of State to confirm the decision in Jenny Watson's letter of 21st February, that Mr Dhasmana's appeal is not admissible.
The Secretary of State has considered the admissibility of the appeal carefully and reached his decision on the basis of the evidence and the legal advice available to him. The Secretary of State has noted that the subsequent opinion of Counsel confirmed that the grounds for ruling the appeal inadmissible, falls within the scope of the meaning of paragraph 190 and the legal precedent in the Guirguis decision, and that the Secretary of State,...
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