Lauffer v Barking, Havering & Redbridge University Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HOLROYDE |
| Judgment Date | 10 August 2009 |
| Neutral Citation | [2009] EWHC 2360 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ09Z02786 |
| Date | 10 August 2009 |
[2009] EWHC 2360 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: Mr Justice Holroyde
Case No: HQ09Z02786
MR ANDREW STAFFORD QC & MR SAM NEAMAN (instructed by Messrs Radcliffeslebrasseur) appeared on behalf of the CLAIMANT
MR JOHN BOWERS QC (instructed by Messrs Beachcroft LLP) appeared on behalf of the DEFENDANT
APPROVED JUDGMENT
The claimant, Mr Lauffer, has since 1998 been employed by the defendant NHS Trust as a consultant general surgeon. A number of incidents over a period of years have given rise to serious concerns on the part of the defendant. Certain matters have also been reported to the General Medical Council.
On 25 June 2009 the defendant purported to dismiss the claimant on the ground of an irrevocable loss of trust and confidence. On 1 July the claimant commenced proceedings claiming damages and declaratory and injunctive relief. On the following day, 2 July, the claimant made the present application for an interim injunction. That application first came before the court on 9 July when certain directions were given. It now comes before me. I speak of the dismissal of the claimant as a purported dismissal because it is the essence of the claimant's case that the dismissal is invalid by reason of the failure of the defendant to go through the process to which the claimant was contractually entitled. It has been made clear in correspondence between the parties that the claimant does not accept that the dismissal was valid. It is nonetheless convenient for me, as counsel have done, simply to refer to dismissal and to speak of the employment as having been terminated, whilst of course recognising that those matters are very much in issue.
In the present application for an interim injunction the parties are agreed that the court should apply the principles set out in the familiar case of American Cyanamid v Ethicon [1975] AC 396. The parties of course disagree as to the conclusion to which an application of those principles should lead me. I remind myself that it is not for me in the course of this judgment to express any view as to the merits of the claim provided only that the claimant can surmount the first hurdle of satisfying me that there is a serious issue to be tried. To that first hurdle I will come shortly.
I begin by giving a very brief outline of the chronology of events and incidents said to have given rise to the concerns on the part of the defendant. I outline all the incidents mentioned in the defendant's skeleton argument, though it should be noted that the claimant contends that many of these are stale and that it is only the last two which are in truth of any relevance.
In very brief summary, the matters to which the defendant refers are these. In May 2003 when dealing with a patient MD the claimant carried out laparoscopic surgery which is said to have been beyond his competence and the patient was as a result seriously injured. In June 2005 the claimant treated a patient KM in a way which is said to have been inappropriate and which resulted in injury to the patient. This episode was the subject of a complaint and a referral to the GMC which resulted in a report adverse to the claimant. In September 2006 a patient RK sadly died as a result of brain injury during surgery. It is said that on that occasion the claimant carried out an operation which he should not have carried out and that he should have referred the matter to a colleague more specialised than himself. In May 2007 the claimant performed an operation recognised as a difficult operation on a patient TH who sadly died. In September 2007 the claimant performed an operation again acknowledged to be a difficult operation on a patient AS. Sadly that patient also died. This operation in relation to the patient AS is one of the two matters said by the claimant to be relevant to the present application. As a result of what had happened with the patient AS the claimant was on 8 October 2007 advised not to carry out certain types of operation.
The final matter of complaint and concern is that on 6 March 2008 at what I understand to be a private hospital known as Spire Roding the claimant assisted another surgeon in an operation which was of a type which the claimant himself had been told not to carry out. The criticisms of the claimant in summary are that he had not given written notice, as he should have done, to the Spire Roding Hospital of the restrictions on his practice. That gives rise to an issue of probity. It is also said against the claimant that what he actually did in relation to the operation constituted a breach of the prohibition on his carrying out such a procedure, notwithstanding that another surgeon was involved.
Following these various events and incidents the claimant was suspended from practice by the defendant in April 2008. The term of that suspension has been extended more than once and it continues up to and including today. In addition, on 9 July 2008 the General Medical Council ordered an interim suspension of the claimant's registration. That registration was suspended for a period of 18 months from 9 July. The defendant particularly invites me to have regard to the finding contained in the report of the General Medical Council's Interim Order Panel indicating:
“The Panel is satisfied that there may be impairment of your fitness to practise which poses a real risk to members of the public and which may adversely affect the public interest. After balancing your interests and the interests of the public, the Panel has determined to impose an interim order to guard against such a risk.”
I should also note that towards the end of that report the Panel said this:
“In deciding on the period of 18 months, the Panel has taken into account the uncertainty of the time needed to resolve all the issues in this case.”
Against the background of that outline chronology I turn to consider the contractual provisions relevant to this application and then to consider the sequence of events most closely related to the eventual dismissal.
The defendant has a disciplinary policy for doctors which implements the national policy framework, fully known as “Maintaining High Professional Standards in the Modern NHS” and commonly abbreviated to MHPS. The defendant's policy indicates that concerns about a doctor's conduct or capability can come to light in a number of different ways. The submission on behalf of the claimant is that all of the various matters said by the defendant to give rise to concern about the claimant fall within the ambit of concerns about capability, with one exception. That one exception is the allegation of misconduct and consequent issue of probity relating to the claimant failing to notify the Spire Roding Hospital of the restrictions on his own practice and playing a part in a procedure which he should not have undertaken.
The defendant's policy goes on to provide a detailed procedure for dealing with issues of capability. It also specifically provides that where there is a case which covers more than one category of problem they will usually be combined under a capability hearing. At paragraph 4.4 of the defendant's policy the following is stated:
“Wherever possible, the Trust will aim to resolve issues of capability (including clinical competence and health) through ongoing assessment and support.”
In further detailed provisions as to how capability concerns should be dealt with the policy goes on to provide a detailed prehearing process. The essence of the procedure, as it is submitted on behalf of the claimant, is that attempts will be made, firstly, to try to resolve any issue of capability through local action such as retraining, counselling or performance review. If for any reason such resolution is not practicable the matter will then be referred to the NCAS to consider whether an assessment should be carried out and to provide assistance in drawing up an action plan. Those steps, it is submitted, must be gone through before any question arises of the holding of a capability hearing. It is, submits the claimant, only when the NCAS assessment is to the effect that the performance is irremediably flawed that one needs to go further and convene a hearing. If there has to be a hearing detailed provision is, unsurprisingly, made for the manner in which it will be conducted.
The sequence of events most closely connected with the eventual dismissal can be summarised as follows. On 16 September 2008 Mr Stone, the defendant's then Executive Director of Human Resources, wrote to the claimant advising him that the investigation into the matter relating to the Spire Roding incident had now been completed. The letter went on as follows:
“In view of both the finding of the Spire Health investigation as to your probity and the previous finding of working outside of your clinical competence in the undertaking of a … operation without formal preceptorship or supervision (I refer to the investigation regarding [AS]…), the view has been reached by the Executive that there is now a loss of trust and confidence between the employer and the employee.
“Therefore, as a result of these two episodes, it is our intention to proceed with a formal disciplinary hearing on the grounds of unprofessional conduct and you will be advised in due course as to the details of this process.”
On behalf of the claimant Mr Stafford QC lays...
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