Kulkarni v Milton Keynes Hospital NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE PENRY-DAVEY |
| Judgment Date | 01 August 2008 |
| Neutral Citation | [2008] EWHC 1861 (QB) |
| Docket Number | Case No: TLQ/08/0228 |
| Court | Queen's Bench Division |
| Date | 01 August 2008 |
[2008] EWHC 1861 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Penry-davey
Case No: TLQ/08/0228
Mr. John Hendy QC & Mr Jonathan Davies (instructed by Radcliffes Le Brasseur) for the Claimant
Mr. Damian Brown (instructed by Hammonds) for the Defendant
Hearing dates: 16,17 &18 July 2008
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.
The Hon. Mr. Justice Penry-Davey :
The Claimant applies to extend an interim injunction granted by Dobbs J. on 12 February 2008. He seeks a declaration that the Defendant is in breach of contract in following the disciplinary procedure “Maintaining High Professional Standards in the Modern NHS” (MHPS) (although part of that aspect of the case has been abandoned), and a declaration that he should be allowed legal representation. He seeks a further order that the Defendant should not be able to refer to an earlier allegation against him leading to criminal charges of which he was acquitted. The Defendant applies to discharge the interim injunction on the basis that it should not have been granted in the first place. There was it is submitted no serious issue to be tried; serious and unexplained delay before the application was made; it should not have been made without notice and there was material non disclosure in that neither the defence of the Defendant nor the relevant disciplinary procedure which was in the Claimant's possession were put before the court.
The Claimant was employed by the Defendant on 31 July 2007 in the capacity of a Foundation Year 1 House Officer. He signed a copy of the National Statement of Particulars of Employment for junior doctors on 30 July 2007. The appointment was subject to the Terms and Conditions of Service of Hospital Medical & Dental Staff as amended: Clause 2 thereof. The disciplinary procedure was stated to be that set out in section 42 General Whitley Council Conditions of Service as incorporated by paragraph 189 of the Terms and Conditions of Service: Clause 17 thereof. Paragraph 189(a) provides that:
“In England, wherever possible, any issues relating to conduct and capability should be identified and resolved without recourse to formal procedures. However, should an employing authority consider that a practitioner's professional conduct and capability may be in breach of the authority's code of conduct, or that a practitioner's professional competence has been called into question, the matter will be resolved through the authority's disciplinary or capability procedures (which will be consistent with the 'Maintaining High Professional Standards in Modern NHS' framework) subject to the appeal arrangements set out in those procedures. Any allegations of misconduct against, or capability concerns about a doctor or dentist in a recognised training grade should be considered initially as a training issue and dealt with via the educational supervisor with the close involvement of the postgraduate dean from the outset.”
The disciplinary framework set out in part III of MHPS is a framework that all NHS Trusts including the Defendant were obliged to implement by 1 June 2005 pursuant to paragraph 2 of the Directions on Disciplinary Procedures 2005 given by the Secretary of State for Health in exercise of the powers conferred on her by the National Health Service Act 1977 and the National Health Service and Community Care Act 1990. Paragraph 14 of Part 1 of MHPS provides for a practitioner to be accompanied at the disciplinary stage by a companion and continues:
“In addition to statutory rights under the Employment Act 1999 the companion may be another employee of the NHS body; an official or lay representative of the British Medical Association, British Dental Association or defence organisation; or a friend, partner or spouse. The companion may be legally qualified but he or she will not be acting in a legal capacity.”
The Defendant's own disciplinary policy provides in paragraph 4.2 as follows:
“A member of staff required to attend either an investigative interview or a formal disciplinary hearing at any level within the Procedure will have the right to be accompanied by a representative of a trade union / professional organisation, by a work colleague, or friend, partner or spouse not acting in a legal capacity (companion). The trade union / professional representative or companion will be allowed to present the case on behalf of the member of staff and to question any witnesses called. The member of staff should, however, respond personally to questions posed by the investigating officer or disciplining manager, as appropriate.”
Paragraph 4.8 provides a right of appeal to the Defendant's board from any decision to issue a final written warning or to dismiss. Paragraph 8.2 provides that:
“Employees will be required to appear personally before the appeal committee either alone or accompanied by a representative of their trade union / professional organisation, by a work colleague, or friend, partner or spouse not acting in a legal capacity (companion)”
Those procedures are clearly and expressly consistent with MHPS and the introduction refers to the MHPS framework.
As part of the recruitment process, the Claimant was required to complete a criminal records bureau check, which showed he had been accused of sexual assault on a patient whilst in earlier employment but acquitted at trial. It appears that he had disclosed that matter on his application form some time in July 2007. On 24 August 2007 just under 4 weeks after the Claimant commenced employment with the Defendant, a patient made a complaint that he inappropriately examined her by placing a stethoscope under her knickers without her permission. In accordance with MHPS and the Trust's own procedures the Claimant was excluded with immediate effect on full pay pending an investigation into the matter. On 30 August 2007 Dr Lanzon Miller (the Defendant's Medical Director) confirmed the Claimant's exclusion and the appointment of Ms Naomi Whitelaw, consultant in obstetrics and gynaecology, as a case investigator into the matter.
On 31 August 2007 Dr Marika Davies, a medico-legal adviser from the Medical Protection Society (MPS) on behalf of the Claimant wrote to Dr Lanzon Miller stating that Dr. Lanzon Miller had informed her that the Defendant did not have its own policy incorporating MHPS and that the Defendant therefore intended to follow the Department of Health framework documents. Dr. Lanzon Miller's hearsay evidence is that had he been asked the question he would have confirmed that the Defendant was following its disciplinary policy and procedure which incorporated MHPS. In her letter of 31 August to Dr Lanzon Miller Dr. Davies requested that the Defendant follow the process under MHPS by sending the Claimant information regarding the investigation including the identity of the case investigator and the specific allegations or concerns that had been raised. There was some delay as the patient who had made the complaint was out of the country and the Claimant had not been able to attend a meeting due to the unavailability of his representatives. On 4 September 2007 Dr. Lanzon Miller advised the Claimant in writing that in view of the patient being on holiday and the delay in arranging a meeting with him, the investigation would be concluded by 7 September. After discussions with the National Clinical Assessment Services the Claimant was formally excluded. He was informed by that letter that in accordance with MHPS the exclusion would be reviewed every 4 weeks.
On 3 October 2007 Dr. Lanzon Miller wrote to the Claimant informing him that as part of the investigation issues had arisen regarding the documentation and he was also waiting for a signed statement from the patient. He referred to the previous incident during the Claimant's employment at the Great Western Hospital in Swindon. He stated that he would be contacting the medical director at the previous trust to see whether there were any other issues or investigations that were carried out at that Trust. He confirmed that the exclusion was extended for a further 4 weeks. The Claimant asked to be able to consult Dr Davies. On 5 October 2007 Dr Davies e-mailed Dr Lanzon Miller and asked him to ensure that a distinction was kept between case manager and case investigator as set out in MHPS. In relation to the previous incident Dr Davies stated that while she understood as case manager Dr Lanzon Miller must take into account all relevant background when deciding what action to take, this should only happen after the investigation had been concluded. She suggested that there was limited information held by Swindon NHS Trust and given the sensitive nature of the previous matter that it would be extremely unfortunate if it was to be presented in an unbalanced way albeit unintentionally. She suggested that the Claimant should have access to the information provided by Swindon NHS Trust and the opportunity to correct any misunderstandings that might arise. On 8 October Dr Davies wrote to Dr Lanzon Miller asking the Defendant to comply with its obligations under MHPS by considering whether or not the Claimant could return to work in a limited capacity or in an alternative non-clinical role pending resolution of the case. On 16 November 2007 Dr Davies requested a copy of the Defendant's disciplinary process that it would be following and she was supplied with the Defendant's disciplinary policy and procedure expressly incorporating MHPS. . On 23 November 2007 Ms Wilkinson, the Defendant's Director of Human...
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