Michael Gordon Matthews v Buckingham Healthcare Nhs Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Globe |
| Judgment Date | 06 February 2013 |
| Neutral Citation | [2013] EWHC 753 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: 1HQ/13/0064 |
| Date | 06 February 2013 |
[2013] EWHC 753 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Globe
Case No: 1HQ/13/0064
MR MATTHEW BARNES (instructed by Radcliffes Le Brasseur) appeared on behalf of the Claimant
MR SUTTON QC (instructed by Capsticks) appeared on behalf of the Defendant
Approved Judgment
This is an application for an interim injunction by Mr Michael Matthews to restrain the defendant from proceeding with a disciplinary hearing for gross misconduct tomorrow, 7 February 2013, relating to a breach of the defendant's Hand Hygiene Policy and Aseptic Technique Guidelines on 10 July 2012 on the grounds that the defendant, in breach of contract, has failed to follow its own procedure, has wrongly categorised the case as one of gross misconduct, wrongly intends to rely on lapsed previous conduct issues at the hearing and, unless restrained by injunction, intends to proceed with a hearing which is otherwise unfair.
Since 1993 the claimant has been employed by the defendant as a Consultant Trauma and Orthopaedic Surgeon. His clinical duties include elective joint replacement surgery at Wycombe Hospital and trauma surgery at Stoke Mandeville Hospital. Since 2003, he has been employed under the new consultants' contract. By clause 17 of the contract "wherever possible any issues relating to conduct, competence and behaviour should be resolved without recourse to formal procedure". However, where it is considered there may be a breach of the code of conduct the matter should be resolved through the defendant's disciplinary procedures. It is agreed that the applicable disciplinary procedures are set out in the defendant's policy document HR26:
"Conduct, capability, ill-health and appeals policies and procedures" Version 3.
The incident that has brought about the proceedings allegedly occurred on 10 July 2012 as documented in a report referred to as "DAYTIX No 26579" as supplemented by a statement from Claire Wing, a healthcare assistant who witnessed the incident. In the statement she says that she was attending Bed 7 on Wren Bay whilst the claimant, together with a colleague, walked in to see a patient in Bed 10. When she turned around, she saw the claimant walking towards the bathroom. She carried on working, turning back to attend to her own patient. She turned around again and saw the claimant with what she believed to be tissue paper in his hand with no gloves or apron on. He then dampened the tissue paper under the tap and wiped the patient's wound from top to bottom with the tissue paper. He spoke to the patient and put the tissue in the bin. The nurse walked away and discussed what she had seen with another nurse and her line manager. After the claimant had left, she went to the bin, put on her gloves, and removed the tissue paper. She then took it to the ward sister, Sister Jenny Carro and reported what had happened.
Nothing was said to the claimant at that time or indeed soon afterwards. The first he knew of any allegation about him was in an informal discussion with another surgeon two days before he went abroad on leave on 12 September 2012. He did not become aware of any formal process until his return to England on 1 October.
In the intervening period the following events had occurred.
On 24 July, Sister Carro filed an incident report or, if it was not her, someone filed the report including information which had come from her. It included the details from DAYTIX 26579. The report includes various sections which must be filled in. The information entered on the form was as follows:
"Adverse event": "Infection control incident".
"Result": "Near miss".
"Actual harm": "No harm".
"Consequence": "Moderate".
"Likelihood of recurrence": "Do not expect it to happen/recur, but it is possible. It might do."
"Action": "Needs to be investigated by clinical director".
The matter was reported to Dr Graz Luzzi, the defendant's Medical Director, who made a decision that there should be a formal investigation and appointed Dr Kathy Cann, Associate Medical Director, as the case investigator.
In that he did so, Dr Luzzi obtained from the National Clinical Assessment Service ("NCAS") advice in a letter dated 13 September 2012. That letter included the following items of advice:-
(1) Exclusion from the workplace should be considered as a measure of last resort, reserved for the most exceptional circumstances. If the Trust considered it necessary to restrict the doctor's practice, those restrictions would need to be appropriate to manage the risk to patients and would need to take into account the doctor's role. It should be kept under review.
(2) The investigation should be conducted in accordance with local policies and procedures. Where the misconduct relates to matters of a professional nature, the case investigator must obtain independent professional advice.
(3) The investigator should establish what training the doctor has undergone in relation to infection control and whether he is up-to-date with the Trust's annual training on the issue. There should also be an audit as to whether the doctor has a high rate of wound infections.
In a letter dated 19 September 2012, Dr Luzzi informed the claimant of his decision. He enclosed a copy of DAYTIX 26579 and a statement from Claire Wing. He said that:
"In light of this further incident relating to your infection control practice, I shall be initiating a formal investigation under Trust Policy HR26."
He enclosed the terms of reference for the case investigator, Dr Cann. The terms of reference required her to establish the facts relating to the incident, to interview the claimant, Claire Wing, and any other relevant witnesses, and to write a report so as to allow a determination to be made as to whether there was a case to take forward to a conduct hearing panel under Policy HR26. The letter also informed the claimant that a case conference would be held on 21 September to decide whether it was necessary to place temporary restrictions on the claimant's clinical practice while the issue was under investigation.
In a second letter, dated 24 September 2012, Dr Luzzi informed the claimant that a case conference had been held to consider, in line with NCAS advice, the issue of placing temporary restrictions on his clinical practice in relation to concerns about patients' safety following the incident on 10 July. The letter stated that the meeting had considered the incident in the context of previous concerns about the claimant's adherence to the Trust's Infection Control Policy. Four documented concerns were referred to. The first was in October 2006 in relation to poor hand hygiene in wound management in not washing hands or wearing gloves. The second was in June 2009 when Dr Luzzi had met with the claimant because of feedback about adherence to the "Bare Below Elbows" Policy in clinical areas. The third was in August 2010 in relation to taking down a dressing and removing a surgical drain without wearing gloves, not cleaning hands beforehand and entering a patient's bay wearing a jacket. The fourth was in April 2011, relating to a formal investigation following an allegation about removing a wound dressing with a stitch cutter with no hand washing and not bare below the elbows. It was following that investigation that a verbal warning had been given for a six month period ending 26 April 2012. The letter continued by stating that repeated non-adherence to the infection control policy was clearly a patient safety issue and it had been agreed that a restriction should be placed on the claimant's clinical practice while the investigation was being conducted. The claimant was restricted to non-clinical duties that did not involve direct contact with patients.
The letters of 19 September and 24 September were received by the claimant upon his return from leave on 1 October. He attended a Trust meeting on 2 October to discuss the situation. Mr Andrew McClaren, a breast surgeon, chaired the meeting. Dr Luzzi was not present. The investigation and restrictions were confirmed, despite protestation by the claimant.
On 9 October, the claimant sent a lengthy letter to Ms Anne Eden, the defendant's Chief Executive, complaining about numerous aspects of the process. His complaints included the late report of the July incident; the decision to hold an investigation despite an exemplary low complication rate over 20 years of practice, as confirmed by National Joint Registry data; only one reported infection for any of his hip and knee replacements in the previous two years, which compared favourably with other consultant colleagues; the lack of discussion with him prior to imposing restrictions upon him; and the appointment of Dr Luzzi as Case Manager, given his past involvement in the verbal warning given in October 2011. Those complaints in that letter of 9 October are effectively the complaints upon which this application is based.
Notwithstanding that letter, and like correspondence between Dr Lloyd, a medico legal adviser for the Legal Protection Society on behalf of the claimant and Ms Eden, the restrictions were maintained and the investigation continued.
On 21 November 2012, Dr Cann produced her investigation report. In the course of preparation, she spoke to Claire Wing twice, in order to obtain supplementary information, and to the claimant.
In the first interview with Claire Wing on 8...
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