Mark Rayner v Barnet, Enfield and Haringey Mental Health NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 14 May 2021 |
| Neutral Citation | [2021] EWHC 1263 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2020-004016 |
| Date | 14 May 2021 |
[2021] EWHC 1263 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Murray
Case No: QB-2020-004016
Mr Philip Coppel QC (instructed by Cavendish Legal Group) for the Claimant
Mr Mark Sutton QC and Ms Betsan Criddle (instructed by Capsticks Solicitors LLP) for the Defendant
Hearing date: 30 November 2020
Approved Judgment
I direct that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Murray
This is the return date in respect of an interim injunction granted by Fraser J on 17 November 2020 (“the Fraser J Order”) following an application made by Mr Mark Rayner on 16 November 2020. The Fraser J Order restrained Barnet, Enfield & Haringey Mental Health NHS Trust (“the Trust”) from proceeding with a disciplinary hearing against Mr Rayner arising out of his contract of employment with the Trust. The disciplinary hearing was due to commence on 18 November 2020. The holding of the disciplinary hearing is restrained by the interim injunction pending this return date.
Mr Rayner seeks to continue the Fraser J Order to restrain his employer, the Trust, from proceeding with the disciplinary hearing against him in order to await the outcome of the determination by his professional body, the United Kingdom Council for Psychotherapy (“UKCP”), as to whether the conduct that is the subject of the disciplinary hearing breached the UKCP's Code of Ethics and Professional Practice (“the UKCP Code”), to which Mr Rayner is bound to adhere as a registered member of the UKCP.
The UKCP is a professional body that is responsible for the education, training, accreditation and regulation of psychotherapists and psychotherapeutic counsellors in the United Kingdom. It maintains a national register of accredited psychotherapists and psychotherapeutic counsellors, which register is accredited by the Professional Standards Authority for Health and Social Care under its Accredited Registers programme. The UKCP Code sets out the standards of ethics, practice and conduct that the UKCP expects of all psychotherapists and psychotherapeutic counsellors admitted to its register.
The parties
Mr Mark Rayner is a psychotherapist registered with the UKCP. He has been employed part-time by the Trust since 1 October 2004. He also has a private practice under the name “Existential Consultancy”, and he is the founder and principal shareholder of EASE Wellbeing, a community interest company.
Mr Rayner has been suspended from all duties with the Trust since allegations were made against him in August 2019 by an adult female patient or “service user” (“MK”), who is a former patient of Mr Rayner. Prior to his suspension, he worked part-time for the Trust in adult secondary care psychology services, with the job title Senior Psychotherapist, based at the Barnet Psychology Hub in Wellhouse Lane. Under his contract of employment, Mr Rayner is subject to the Trust's Disciplinary Policy and Procedures (“DPP”) in respect of any matter that might involve disciplinary action.
The Trust is a large provider of integrated mental health services in Barnet, Enfield and Haringey and also provides community health services in Enfield.
The evidence reviewed
The principal evidence supporting the application to continue the Fraser J Order is the witness statement of Mr Rayner dated 16 November 2020, together with various exhibits. Mr Rayner has also provided a witness statement dated 27 November 2020 from Mr Antonios Christodoulides, a solicitor and consultant with Cavendish Legal Group, Mr Rayner's solicitors, dealing with matters arising since the Fraser J Order was made and also responding to a point raised by the Trust in its evidence submitted in opposition to the application.
In response to the application, the Trust has filed the witness statement dated 25 November 2020 of Ms Sharon Thompson, together with various exhibits. Ms Thompson is employed by the Trust as a Clinical Programme Manager. Ms Thompson is the Commissioning Manager for the disciplinary investigation by the Trust commenced in August 2019 into the allegations made by MK.
The principal documents that I have reviewed include:
i) Mr Rayner's contract of employment with the Trust, which he signed on 13 January 2005 (“the Employment Contract”). The date of commencement of his employment specified in the employment contract was 1 October 2004. The clauses of that contract are not numbered. On the fourth page of the contract is a provision reading:
“DISCIPLINARY PROCEDURE
Matters which may involve Disciplinary action are set out in the Trust's Disciplinary Policy/Procedure.”
In the hearing bundle there are amendments to the Employment Contract dated 23 June 2005, 3 August 2006, 18 July 2006 and 21 September 2006, none of which modify the foregoing provision.
ii) The DPP (version dated 25 July 2016). The Trust's disciplinary proceedings against Mr Rayner are governed by the DPP. According to Ms Thompson, the DPP was collectively drafted by the Trust with input from its recognised trade unions, then signed off by the Trust's joint staff committee, and then approved by the Trust's Policy Review Group, which is chaired by the Trust's Deputy Director of Governance. The DPP sets out the Trust's policy on various aspects of employee discipline, including a framework for the conduct of a disciplinary investigation by the appointed Investigating Officer on behalf of the Trust and any resulting disciplinary hearing. It also addresses the possible outcomes of that process in terms of action that may be taken based on the conclusions reached at the disciplinary hearing, and it provides for various procedural protections and safeguards, including an appeals process.
iii) The Investigation Report dated 13 March 2020 (“the Investigation Report”) prepared by Mr Gerry McCarron, Joint Psychology Lead, Haringey Central Locality Team, who was commissioned by Ms Thompson to be the Investigating Officer under the DPP. Mr Rayner says that, although the Investigation Report is dated 13 March 2020, he did not receive it until October 2020. In an email message dated 13 November 2020 from Ms Kiera McKeown of the Trust to Mr Rayner, copied to Mr Christodoulides, Ms McKeown states that the version of the Investigation Report that would be referred to at the disciplinary hearing that was then scheduled to take place on 18 November 2020 was “the one dated 08/10/20”. I was not presented with a copy of the Investigation Report with that date on it. (If that version is in the hearing bundle, my attention was not drawn to it, and I did not find it myself. I was taken to at least two copies in the hearing bundle, one exhibited to the Particulars of Claim, and one exhibited to Mr Rayner's witness statement, each bearing the date 13 March 2020.) I assume that if Ms McKeown was not mistaken and there is a version of the Investigation Report with that date on it, any differences between that version and the version I reviewed are immaterial for present purposes. 1
iv) The UKCP Code (version dated 1 October 2019).
v) The UKCP Complaints and Conduct Process (version dated November 2020). (“UKCP Complaints Process”). The UKCP Complaints Process sets out how a complaint against a member entered on the UKCP's register of psychotherapists and psychotherapeutic counsellors (referred to in the UKCP Complaints Process as a “Registrant”) will be dealt with in any case where the complaint raises an issue about his or her suitability to be on the UKCP register. In relation to each such complaint, a UKCP officer (referred to in the UKCP Complaints Process as a “Case Manager”) will be assigned to manage and process the complaint in accordance with the UKCP Complaints Process. The matters addressed by the UKCP Complaints Process include misconduct, professional incompetence, criminal conviction or caution, physical or mental health problems and relevant decisions of other bodies, regulators or employers. If the relevant complaint indicates that the psychotherapist's suitability to practise may be impaired, there is sufficient evidence to support the complaint, and there is a realistic prospect of being able to prove the allegations in the complaint, then the Case Manager will refer the complaint to an Adjudication Panel, being a panel of three, chaired by a lay member and comprised of both lay and professional members, each of whom has been appointed based on his or her relevant experience. The Adjudication Panel will hold a hearing, hear evidence and submissions, and then decide:
a) whether the allegations have been proven or admitted;
b) if proven or admitted, whether they amount to a breach of the UKCP Code;
c) if so, whether the breaches are such that the psychotherapist should remain on the UKCP register without any restrictions or conditions; and
d) what sanctions, if any, are to be applied.
vi) The UKCP Complaints and Conduct Process: Guidance for Psychotherapists (version dated 29 May 2019). This is guidance published by the UKCP for its members on the UKCP Complaints Process.
vii) Written summary of the Interim Suspension Order Hearing held on 30 August 2019 under the 2017 version of the UKCP Complaints Process before an Interim Order Panel, setting out the Interim Order Panel's reasons for refusing the UKCP's application that Mr Rayner be made subject to an interim order of suspension as a result of the referral by the Trust to the UKCP on 16 August 2019...
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