Elizabeth Joan McMillan v Airedale NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Judge Hegarty |
| Judgment Date | 05 June 2013 |
| Neutral Citation | [2013] EWHC 1504 (QB) |
| Docket Number | Claim No: 2MA91000 |
| Court | Queen's Bench Division |
| Date | 05 June 2013 |
[2013] EWHC 1504 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Claim No: 2MA91000
Manchester Civil Justice Centre
1, Bridge Street West
Manchester
M3 3FX
Judge Hegarty QC
Claim No: 2MA91000
Miss Mary O'Rourke QC (instructed by Ryan Solicitors) for the Claimant
Mr Mark Sutton QC (instructed by DAC Beachcroft LLP) for the Defendant
Hearing dates: 17th, 18th, 19th, 20th & 21st December 2012; & 20th, 21st & 22nd February 2013
HTML VERSION OF JUDGMENT
| PART I | |
| INTRODUCTION | 1 |
| PART II | |
| THE ISSUES | 34 |
| PART III | |
| ISSUE 1 | |
| Is there a Contractual Power to Increase Sanction | |
| on Appeal? | 43 |
| Miss McMillan's Contract of Employment | 43 |
| The Trust's Disciplinary Procedures | 54 |
| The Trust's Disciplinary Code | 59 |
| Capability Issues | 66 |
| Other Relevant Matters | 87 |
| Discussion and Analysis | 92 |
| Implied Terms | 94 |
| PART IV | |
| ISSUE 2 | |
| Was Miss McMillan entitled to withdraw her Appeal? | 103 |
| Paragraph 47 of Part IV | 116 |
| Paragraph 4.24 of the Disciplinary Code | 130 |
| Mutual Trust and Confidence | 133 |
| PART V | |
| ISSUE 3 | |
| Was there a Binding Agreement Conferring a | |
| Power to Increase Sanction on Appeal? | 144 |
| The Relevant Correspondence | 145 |
| The Trust's Case | 163 |
| PART VI | |
| ISSUE 4 | |
| Was there a Repudiatory Breach of any such | |
| Agreement by the Trust? | 184 |
| Miss McMillan's Pleaded Case | 185 |
| Some Preliminary Observations | 194 |
| The Principal Issues | 207 |
| The First Charge | 208 |
| The Second Charge | 215 |
| The Conversation with the Family | 216 |
| The Conversation with Dawn Wright | 221 |
| The Discussion with the Patient | 228 |
| The Formulation of the Second Charge | 239 |
| Other Evidence | 246 |
| The Conduct of the Hearing | 249 |
| The Panel's Reasoning and Decision | 390 |
| Was there a Re-Hearing | 421 |
| Bias | 437 |
| PART VII | |
| REMEDY | 444 |
Judge Hegarty Q.C.
Miss Elizabeth Joan McMillan is a registered medical practitioner who, since 1st July 2008, has held the position of Consultant Obstetrician and Gynaecologist with the Airedale NHS Foundation Trust, working principally at the Airedale Hospital, Skipton. She has had an unusual career, qualifying as a nurse in 1981 and a midwife in 1982, before joining Queen Alexandra's Royal Army Nursing Corp in 1983 as a midwife. In 1988, after leaving the Army with the rank of Captain, she embarked on the study of medicine at the University of Liverpool and, after qualifying in 1993, took a series of positions within the National Health Service before being appointed as a Consultant at Walsall Hospital in September 2002. This was followed by her current appointment with the Defendant Trust. On 12th August 2009, she was appointed Deputy Medical Director for Airedale Hospital; and on 4th June 2010 she was awarded a Level 4 Clinical Excellence award backdated to April 2009. Until the unfortunate events which have given rise to the present litigation, she has had an unblemished record throughout her career.
However, on 7th June 2010, she was involved in what was described as a serious untoward incident when a patient suffered serious and uncontrolled bleeding in the aftermath of a successful caesarean delivery which necessitated emergency surgery to remove her spleen. Fortunately the patient herself has since made a full recovery.
Bleeding of this kind is a rare complication of delivery by caesarean section; and it was inevitable that there would, in due course, be an investigation into what had occurred by way of what was known as a Root Cause Analysis or "RCA". This took place on 1st September 2010 and was attended by Miss McMillan amongst others. One of the matters which had to be considered at the RCA was whether the procedure known as "fundal pressure", which had been applied to the patient's abdomen during the course of the caesarean procedure by a locum specialist registrar, Dr Sanjeev Bhandare, might have caused or contributed to the bleeding which followed.
I do not have any detailed record of what took place during the course of the RCA meeting, but it appears to be common ground that Miss McMillan said something to the effect that she had had no concerns about the application of fundal pressure and that if she had, she would have said so at the time. But some concern appears to have been expressed by other members of staff subsequent to the RCA meeting as to whether this observation by Miss McMillan did, in fact, represent the views she had previously expressed in discussions with the patient, her family and others.
This led to an investigation initiated by the Medical Director, Dr Andrew Catto; and a report dated 25th February 2011 was prepared by the investigating officer, Miss Sharon Ray, Head of Training and Development at the Trust, which concluded that there was evidence that Miss McMillan had not provided "a full and honest account" of the circumstances surrounding the care of the patient at the RCA meeting of 1st September 2010 and decided that there was a case of misconduct for her to answer which should be referred to a disciplinary panel.
This recommendation was adopted by Dr Catto who informed Miss McMillan that the matter would be referred to a disciplinary panel to consider two allegations against her. In the meantime, with effect from 11th November 2010, Miss McMillan had been excluded from her duties pending the outcome of the investigation; and there was a problem about her salary which was ultimately resolved after an application had been made by Miss McMillan to an Employment Tribunal.
After Miss McMillan had been informed that she would face disciplinary proceedings, she was, for some months, absent on grounds of sickness. But on 17th October 2011 she was invited to attend a disciplinary hearing which took place on 9th November 2011. The hearing was chaired by the Chief Executive of the Trust, Miss Bridget Fletcher, assisted by three others. The Trust's case was presented by Dr Catto; and Miss McMillan was represented by her solicitor, Mr James Rowley of Ryan, of Manchester, assisted by Dr Vas Kavadas, a medical legal adviser with the Medical Defence Union.
The charges which Miss McMillan faced were as follows:
"1. You did not provide a full and honest account of the circumstances of the care of patient no. 167586 at the Serious Untoward Incident / Root Cause Analysis meeting 2010/8938 held on 1 September 2010; and
2. You provided conflicting accounts of the circumstances surrounding the care of patient no. 167586 on 8 June 2010 when she visited the patient in ICU and discussed her care with her family; and then on 1 September 2010 at SUI / RCA 2010/8938."
By its decision letter dated 16th November 2011, the disciplinary panel upheld both of these allegations. The language in which the charges were formulated is by no means as clear as it might have been; and, indeed, a point was taken during the course of the present proceedings as to the wording of the second charge. But the sting of the allegation is that Miss McMillan had said one thing to the patient or members of her family in the immediate aftermath of the incident itself and something different at the RCA. In essence, the Trust's case was that she had initially told the patient and her family that the bleeding had been caused by the fundal pressure exerted by Dr Bhandare; whereas, at the RCA, she had said that she had had no concerns on that particular score.
The outcome of the disciplinary proceedings clearly represented a finding of serious misconduct on the part of Miss McMillan. On the basis of what she was alleged to have said previously, the panel concluded that Miss McMillan had not given a full and honest account of her concerns to the RCA. Having come to that conclusion, the disciplinary panel considered the question of sanction. It decided to issue Miss McMillan with a final written warning on condition that she agreed to an action plan being put in place to address improvements in her behaviour, and that she should fully comply with its requirements and demonstrate the necessary improvements. The warning was to be placed on her personal file for a period of 12 months and was to be disregarded after that time, provided that no further misconduct occurred. Any further misconduct was likely to result in future disciplinary action and prompted to dismissal
The decision letter concluded with two further observations. Firstly, it was noted that her exclusion from work had been lifted with effect from 10th November 2011 and it was proposed that a meeting to discuss her return to work would be held during the week commencing 21st November 2011. However, the panel also informed Miss McMillan that, in view of the serious nature of her misconduct, the matter would have to be referred to the General Medical Council for its consideration. I understand that the General Medical Council has not yet come to any conclusion as a result of the referral.
Miss McMillan and her advisers were surprised and disappointed by the outcome of the disciplinary hearing. On 30th November 2011, her solicitors wrote to the Trust indicating an intention to appeal against the findings of the disciplinary panel and its decision to issue a final written warning. On 1st February 2012, Miss Justine Steele the Trust's Director of Organisational Development and Workforce, wrote to Miss McMillan and her solicitors informing her that the hearing of the appeal would take place on 1st March 2012 and would be heard by Mr Ronald Drake, a non-executive director of the Trust, Miss Steele herself and...
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