Gillian Clare Mezey v South West London and St George's Mental Health Nhs Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Underhill |
| Judgment Date | 05 December 2008 |
| Neutral Citation | [2008] EWHC B9 QB |
| Date | 05 December 2008 |
| Court | Queen's Bench Division |
[2008] EWHC B9 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Case No: 08IHQ0483
Royal Courts of Justice
Strand
London
WC2A 2LL
Mr Justice Underhill
Mr J Hendy QC, appeared on behalf of the Claimant
Mr M Supperstone QC, and Ms L Millin appeared on behalf of The Defendants
INTRODUCTION
The claimant is a consultant psychiatrist employed by the defendant ("the Trust") at Springfield Hospital in Tooting. Among her patients was John Barrett, a paranoid schizophrenic with a history of violence. On 1st September 2004 Mr Barrett was re-admitted to hospital for assessment following concerns about a possible deterioration in his condition. The same afternoon, the claimant authorised the grant to Mr Barrett of unescorted "ground leave" for a period of one hour: that meant that he was allowed unsupervised release into the grounds of the hospital. The claimant had not at that stage been able herself to examine Mr Barrett because she was on other duties elsewhere, and she acted on the basis of what she was told by her colleagues (though Mr Barrett had been her patient for some time and she was generally familiar with his condition). Mr Barrett took advantage of his ground leave to abscond, and the following day he killed a stranger, Denis Finnegan, in Richmond Park.
In August 2005 the Trust informed the claimant that it would be commencing disciplinary proceedings against her on the basis of alleged deficiencies in her care of Mr Barrett. Although various issues were raised, the focus inevitably was on the decision to allow Mr Barrett unescorted leave. There was initially some dispute about the form which those proceedings should take; but it was eventually agreed that they would be conducted in accordance with Annex B of Department of Health circular HC(90)9, which the claimant said was the applicable procedure in accordance with the terms of her contract of employment at the material time. The claimant agreed not to undertake clinical work pending the outcome of those proceedings. (The Trust in fact sought to suspend her from all her duties, but in earlier proceedings I granted an injunction preventing it from doing so. Permission to appeal against that decision was refused by the Court of Appeal: see [2007] IRLR 237).
An investigating panel consisting of Mr Robert Francis QC and two independent consultant psychiatrists was duly appointed in accordance with the procedure required by Annex B. The panel reported on 28th March 2008: I will refer to their report as 'the Francis Report'. I shall have to give more details of their findings in due course. At this stage, I need only say that although they made some criticisms of the claimant they found that she had not been 'at serious fault' in any respect, and they found that her continuing employment by the Trust gave rise to no cause for concern.
Following receipt of the panel's report, the claimant's solicitors, Messrs Radcliffes Le Brasseur ('RLB'), wrote to the Trust on 11th April 2008 seeking among other things formal confirmation that no further action, and specifically no disciplinary action, would be taken against the claimant and that arrangements would be made for her return to clinical duties. On 25th April the Trust's solicitors, Messrs Capsticks, replied that:
'The Trust has considered the report as a whole and having done so has decided that a hearing under the Trust's Disciplinary Procedure should take place and has also concluded that no meeting should therefore take place between the Trust and Dr Mezey and her representative. The Trust has not concluded that no disciplinary action needs to be taken but the Trust will be writing to Dr Mezey to confirm that a disciplinary hearing will take place.'
(The reference to the Trust's disciplinary procedure was to a form of procedure introduced in 2006, to which I will refer as 'the 2006 procedure'.)
RLB replied on 13th May 2008, protesting that disciplinary proceedings could not be pursued in the light of the panel's findings and asking the Trust to reconsider. Capsticks' answer dated 20th May, said that the Trust had indeed reconsidered but that it maintained its original decision. The letter concluded:
'It is not accepted that the Trust is bound by the views expressed in Part 2 of the Report that Dr Mezey was not at serious fault with regard to the matters that the Panel have found proved. However, even if, contrary to the Trust's view, the Trust is so bound, the findings of fact in Part 1 and the views expressed in Part 2 that Dr Mezey was at fault, but not at serious fault, would warrant the holding of a disciplinary hearing.
'The Trust has also given consideration to your request that Dr Mezey be allowed to return to her clinical duties as a Consultant Psychiatrist with the Trust. The Trust has decided in the light of the findings of fact made in Part 1 of the Report and having considered the Report as a whole, and having decided to proceed with a disciplinary hearing, that Dr Mezey should not return to her clinical duties before the conclusion of the disciplinary process.
'Arrangements will now be made for the disciplinary hearing to take place as soon as possible and the Trust will be writing shortly to Dr Mezey in this regard. The Trust's current Disciplinary Procedure will apply (in so far as it is relevant). The Chief Executive of the Trust will conduct the hearing and make the decision as to what, if any, disciplinary action should be taken.'
On 28th May 2008 Mr Peter Houghton, the Chief Executive of the Trust, wrote to the claimant giving her formal notice of his decision to set up a disciplinary hearing as already adumbrated in Capsticks' letter. The letter began:
'I have given careful consideration to the Report of the panel chaired by Robert Francis QC. In the light of the serious findings made against you I have decided to set up a disciplinary hearing to consider them further.'
Various details of the proposed hearing were then given, including a date of 9th June. It was made clear that no material other than the Francis Report would be before the hearing. The letter then continued:
'The panel will decide at the end of the hearing whether or not any disciplinary action, up to and including dismissal, should be taken against you.'
In those circumstances the claimant on 5th June 2008 issued the present proceedings, seeking principally an injunction prohibiting the Trust from holding a disciplinary hearing and from continuing to exclude her from clinical work. An application for interim relief was issued on the same day, returnable on 12th June.
That appears to have prompted a rethink on the part of the Trust. On 9th June 2008 Capsticks wrote as follows:
'Thank you for your letter of 5th June 2008 enclosing High Court Proceedings No. H008X02149.
We are instructed to respond as follows.
1. The Trust agrees to lift Dr Mezey's suspension/exclusion from clinical work and Dr Nereli, Medical Director, will be contacting Dr Mezey by noon on Wednesday 11th June 2008 to discuss arrangements for her return to work.
2. The Trust does propose to convene a disciplinary hearing to consider the findings of the Francis Report. The Trust does not accept that this is a matter that should be dealt with by way of an informal meeting. The hearing will be in accordance with MHPS 2003/2005. However, the sanction (if any) that the Trust imposes on Dr Mezey in respect of the findings of the Francis Report will exclude dismissal
…'
That letter reflected a change in the Trust's position in, so far as material to these proceedings, three respects.
First, contrary to the position taken in Capsticks' letter of 20th June 2008, the claimant was to be permitted to return to clinical duties in advance of any disciplinary hearing. She in fact did so shortly afterwards and has continued to work for the Trust up to the present day.
Secondly, although the Trust maintained its intention to conduct a disciplinary hearing, it now proposed to do so not under the 2006 procedure but under the procedure provided for in the Department of Health publication Maintaining High Professional Standards (that is the 'MHPS 2003/2005' referred to in the letter): for the genesis and status of this document, see paragraph 29 of my first judgment in the earlier proceedings. RLB had made the point in earlier correspondence that if, contrary to their primary case, there had to be a disciplinary hearing the provisions of MHPS should apply.
Thirdly, the Trust accepted, contrary to what Mr Houghton had said in his letter of 28th May 2008, that dismissal was not a potential outcome of the proposed disciplinary hearing.
Those concessions greatly reduced the ambit of the dispute between the parties. However, it remains the claimant's position that no disciplinary hearing of any kind should proceed. Whether that is correct is the principal issue before me, but there is also a question as to whether, if a disciplinary hearing should proceed, Mr Houghton should, as proposed, be a member of the disciplinary panel.
As a matter of form, those issues come before me on the basis of the claimant's original adjourned interim application dated 5th June 2008 (I have not sought to explore why it has taken so long for that application to be relisted); but the parties have agreed that the application should be treated as the trial of the action.
Before me the claimant has been represented by Mr John Hendy QC, and the Trust by Mr Michael Supperstone QC, leading Ms Leslie Millin of Capsticks.
THE PROVISIONS OF HC(90)9
Annex B of HC(90)9 is headed 'Disciplinary proceedings in cases relating to...
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