Dr Mahein Hussain v Surrey and Sussex Healthcare Nhs Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Andrew Smith |
| Judgment Date | 05 July 2011 |
| Neutral Citation | [2011] EWHC 1670 (QB) |
| Docket Number | Case No: HQ11X01317 |
| Court | Queen's Bench Division |
| Date | 05 July 2011 |
[2011] EWHC 1670 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Andrew Smith
Case No: HQ11X01317
Mr Giles Powell and Ms Nicola Newbegin (instructed by Linder Myers LLP) for the Claimant
Mr Mark Sutton QC and Mr Ben Cooper (instructed by Capsticks LLP) for the Defendant
Hearing dates: 8, 9, & 10 June 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Dr Mahein Hussain, a consultant paediatrician at the East Surrey Hospital, Redhill employed by the Surrey and Sussex Healthcare NHS Trust ("the Trust"), claims that the Trust has excluded her from her work and brought and seeks to pursue disciplinary procedures in breach of her contract of employment. At the start of the trial, she also contended that the Trust was seeking to pursue disciplinary proceedings that were not in accordance with her rights under article 6 of the European Convention on Human Rights and Fundamental Freedoms ("the Convention") but, as I shall explain, the issue that gave rise to that contention was resolved by agreement between the parties during the hearing before me.
At the end of the hearing on 13 June 2011 I stated my main conclusions in order to minimise the delay in having the differences between Dr Hussain and the Trust resolved, and I said that I would give my reasons and more detailed conclusions in writing, which I now do. The decision that I announced was that:
i) The Trust was entitled to place some restrictions upon Dr Hussain under its procedure for excluding practitioners from work, particularly with regard to clinical practice, on and after 18 November 2010, but it was not entitled to place as extensive restrictions upon her as it did, and some of the restrictions were, and, as things stand, are, in breach of the Trust's procedures and Dr Hussain's contract of employment.
ii) The Trust would not have been entitled to proceed to a conduct hearing against Dr Hussain on what I shall call the March charges, and it would have been a breach of the contract of employment for it to have done so. However, the Trust is entitled to proceed to a conduct hearing to determine the allegations contained in what I shall call the amended charges.
Introduction
The matter arises from Dr Hussain's management at the East Surrey Hospital in late June 2010 of a baby, who has been referred to as Baby S. It is not for me to decide how Dr Hussain managed Baby S or about her later conduct or whether she is to be criticised for what she did, and I describe what happened only to the extent required to explain the issues in the litigation. My description of the background events is intended to be uncontroversial, and, if I state anything that is in dispute, I should not be understood to be deciding it: I am not in a position to do so.
On 16 June 2010 Baby S was admitted to the Urgent Treatment Centre at Crawley Hospital, which is also managed by the Trust. She had a lump on her chest, and a chest x-ray was taken. Baby S was discharged home into her parents' care. On 25 June 2010, the Urgent Treatment Centre received a report upon the x-ray that suggested a healing fracture of the seventh rib on the left side. The Social Services Department of the West Sussex County Council ("the Council") was told of this, and at their request Baby S was admitted to the East Surrey Hospital. On 26 June 2010 Dr Hussain took a history from Baby S's parents, examined her and ordered blood tests and a skeletal survey. She then discharged Baby S into the care of her parents. She spoke to the Social Services Department of the Council on 27 June 2010, and is said to have reported that there were no "obvious fractures" or "non-accidental injury concerns", and that there was no need for the Social Services follow up the case.
At some time after 26 June 2010, Dr Jerry Vive, a consultant radiologist, reported the results of the skeletal survey, referring to fractures of the sixth rib on the left and the fourth and fifth ribs on the right. He wrote that "NAI [sc. non accidental injury] cannot be excluded". Dr Hussain wrote on a copy of this report a note dated 29 June 2010 (the "29 June 2010 note") apparently referring to a discussion that she had had about the case with Dr Vive.
On 1 July 2010 a Senior House Officer, Dr Swati, consulted Dr Vive's report and made a record of doing so in the clinical notes. She wrote that she contacted Dr Hussain and that "She [sc Dr Hussain] is aware of findings". Dr Hussain wrote a remark against Dr Swati's note, "But did not ask for anything to be done", and dated her remark 5 July 2010. I refer to this as the "5 July 2010 entry".
On 5 July 2010 Dr Hussain again spoke to the Social Services Department about the case, and also spoke to a police child protection officer. On the same day she wrote in a letter to the Social Services Department that on 27 June 2010 she had spoken to them "to confirm that we had no social concerns about the baby", and in that letter she referred to the report on the skeletal survey, writing that she had discussed it with Dr Vive. Although there was no evidence before me about precisely what Dr Hussain said in her conversations with the Social Services and the police, it was accepted for the purposes of the trial by Mr Giles Powell, who represented her, that it was not significantly different from what she wrote in her letter.
On 21 August 2010, while Dr Hussain was on holiday, Baby S was re-admitted to the hospital, and at about this time she was removed from her parents' care and put into foster care. (It would appear that the baby was re-admitted on 21 August 2010 from the documents and in particular a letter of a consultant paediatrician, Dr Catherine Greenaway, dated 25 August 2010, although the parties' agreed chronology states that she was readmitted on 23 August 2010. The precise date is not relevant for present purposes.) As a result, on 2 September 2010, the Trust declared that the case was to be treated as a "SUI", or Serious Untoward Incident. At about the end of October 2010, the Trust arranged for it to be investigated by a team under Mr Raj Sivakumaran, the Director of Dentistry at the Trust. I shall refer to this investigation as the "SUI investigation". It was not a disciplinary investigation: as Mr Sivakumaran put it in his (unchallenged) witness statement and I accept, "SUI investigations do not concern individuals, but examine the chronology of incidents, identify root causes and factors involved and attempt to redress any issues that arise with recommendations".
On 5 November 2010, Mr Sivakumaran told Dr Hussain of his investigation and asked to meet her. According to Dr Hussain, that was the first that she had heard of the case of Baby S since early July. She and Mr Sivakumaran met on 8 November 2010. There is no evidence that at the start of the SUI investigation or at the meeting on 5 November 2010 Dr Hussain was told of specific allegations or charges against her: that, as I have explained, is not the nature a Serious Untoward Incident investigation. Nor is there evidence that she was told who was to be interviewed in the investigation. I infer that she was not given information of this kind.
At a meeting with Dr Hussain on 18 November 2010, Dr Rob Haigh, the Interim Medical Director of the Trust, informed her of her immediate exclusion from her work and Trust premises. This was confirmed in a letter from Dr Haigh to Dr Hussain dated 24 November 2010. On 13 December 2010 Dr Haigh advised Dr Hussain of her formal exclusion, and this was confirmed in a letter dated 29 December 2010. She remains excluded. I shall deal with Dr Hussain's exclusion in more detail later in my judgment (and I shall explain the distinction between "immediate exclusion" and "formal exclusion").
In his letter of 24 November 2010 Dr Haigh recorded that at the meeting he had "advised [Dr Hussain] that during Mr Raj Siva's investigation into the SUI concerning Baby S, a number of issues had come to light which had given [him] serious cause for concern. These related to [her] clinical decisions during the infant's first admission to East Surrey Hospital on 25 th June 2010, and also to [her] written entries in the patient's notes which raise the possibility that these may not have been made contemporaneously." Dr Haigh continued: "The clinical SUI investigation [will] continue and there will be a parallel investigation into the possibility that your clinical notes were not made contemporaneously".
At a meeting on 6 December 2010, as was recorded in a letter from Dr Haigh to Dr Hussain of 9 December 2010, Dr Hussain was told that the report on the findings of the SUI investigation was "nearing completion", and that there was a further investigation, described as the "conduct investigation" (a term that I shall adopt) into the Trust's concerns about the clinical notes that she had made. This conduct investigation was conducted by Dr Philip Williams, the Clinical Lead for Anaesthetics and Critical Care, and the clinical notes that were the subject of it included the 29 June 2010 note and the 5 July 2010 entry. Dr Haigh told her that it was expected that the conduct investigation would be completed by the end of the week, that is to say by 10 December 2010.
On 6 December 2010 Dr Hussain also met Dr Williams. Dr Williams had written to her about the investigation on 30 November 2010, but she did not receive the letter before 6 December 2010, apparently because the bad weather at the time caused postal delays. She learned that Dr Williams had requested a...
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