Miss Sasha Burn v Alder Hey Children's NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Thornton |
| Judgment Date | 18 June 2021 |
| Neutral Citation | [2021] EWHC 1674 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2020-004534 |
| Date | 18 June 2021 |
[2021] EWHC 1674 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. Mrs Justice Thornton DBE
Case No: QB-2020-004534
Ms Betsan Criddle (instructed by Medical Protection Society) for the Claimant
Mr Simon Gorton QC (instructed by Weightmans) for the Defendant
Hearing dates: 27 – 29 April 2021
Approved Judgment
Introduction
The Claimant is a consultant paediatric neurosurgeon employed by the Defendant, the Alder Hey Children's NHS Foundation Trust, since 2009. The claim arises out of the death of a patient, ‘Patient A’, in December 2017. The Claimant was the consultant, in charge and on-call, when Patient A required operative procedures and her condition deteriorated. The Claimant has been restricted from clinical duties whilst an internal investigation, conducted in accordance with the NHS national framework for handling concerns about medical staff (Maintaining High Professional Standards, ‘MHPS’) considers allegations about her behaviour and clinical decision-making in relation to Patient A.
This claim is not about the merits of the allegations against the Claimant in relation to her clinical care of Patient A. It is about the Defendant's conduct of the disciplinary proceedings against the Claimant.
During the course of the internal investigation, the Claimant sought disclosure of a number of documents from the Case Investigator appointed by the Defendant, prior to attending an interview to give her account of events. Some of the material sought was provided. Information which was not provided included correspondence with Patient A's parents and statements from staff produced for an earlier investigation into Patient A's care. Matters reached a stalemate with the Claimant declining to attend an interview without sight of the documents and the Defendant indicating its intention to conclude the investigation without further input from the Claimant if she remained unwilling to attend an interview. The Claimant subsequently applied to the Court for an injunction to require the Defendant not to conclude the investigation prior to disclosing the documents and a declaration in respect of her contractual rights.
The parties agree the following issues are in dispute:
a. Does the Claimant have a contractual right, pursuant to express terms in the MHPS/Trust Policy and/or terms implied by law, in particular, the implied duty of mutual trust and confidence:
(i) to be consulted by the Case Investigator about information to be collected as part of the investigation?
(ii) to be provided with the documents sought and before she is interviewed about her care of Patient A as part of the MHPS investigation?
b. Has the Trust breached the terms of the Claimant's contract by (i) not consulting her; (ii) refusing to provide her with the documents on the basis that it is said that the documents are not relevant and/or because of a lack of consent to disclose them; (iii) informing her that the investigation will be concluded without her being interviewed if she does not agree to attend without having received the documents?
c. Is the decision of the Case Investigator as to the relevance of the documents sought a matter of discretion and, if so, has that discretion been exercised lawfully?
d. In terms of relief or remedy resulting from these issues:
(i) If the Claimant enjoys the contractual right to the documents, what is the effect (if any) of the Defendant not having consent to disclose the documents?
(ii) Should the Court exercise its discretion to grant a permanent injunction preventing the Defendant from concluding its investigation unless it provides the documents?
The contractual framework
Express terms
The Claimant's written contract of employment is a standard form consultant contract. Clause 3 is headed ‘General Mutual Obligations’. It records a mutual agreement “to co-operate with each other; to maintain goodwill; and to carry out our respective obligations in devising, reviewing, revising and following the organisation's polices, objectives, rules, working practices and protocols”.
Clause 17 relates to disciplinary matters. It provides that, wherever possible, any issues relating to conduct, competence and behaviour should be identified and resolved without recourse to formal procedures. However, “ should we consider your conduct or behaviour may be in breach of the Trust's Policies or that your professional competence has been called into question, we will resolve the matter through our disciplinary or capability procedures, subject to the appeal arrangements set out in those procedures”.
It was common ground that the Defendant's disciplinary procedures included the Defendant's policy for handling concerns about the conduct and performance of medical staff, titled “E27- Handling Concerns about Conduct, Performance & Health of Medical & Dental Staff Policy”. It was also common ground that the Defendant's policy implements, for the most part, the national framework in the MHPS.
Under the MHPS, an employing trust has responsibility for disciplining doctors whom it employs. The same disciplinary procedures apply to all doctors employed in the NHS. The framework was drafted by the Department for Health and British Medical Association in close collaboration with NHS Employers and the National Clinical Assessment Authority. The MHPS is of crucial significance to the contractual arrangements between a doctor and their employing Trust within the NHS ( Kerslake v North West London Hospital NHS Trust [2012] EWHC 1999 QB).
The relevant parts of the Trust's disciplinary policy are as follows. The particular aspects under scrutiny in the claim are underlined:
“Appendix A Procedure For Handling Concerns about Conduct, Performance …of Medical…Staff
Section 1 Action when a concern arises
1 Introduction
1.1 The management of performance is a continuous process which is intended to identify problems. Numerous ways now exist in which concerns about a practitioner's performance can be identified; through which remedial and supportive action can be quickly taken before problems become serious or patients harmed; and which need not necessarily require formal investigation or the resort to disciplinary procedures.
1.2. Concerns about a practitioner's conduct or capability can come to light in a wide variety of ways, for example:
• Concerns expressed by other NHS professionals, health care managers, students and non-clinical staff,–
…
• Complaints about care by patients or relatives of patients;
1.3. Unfounded and malicious allegations can cause lasting damage to a practitioner's reputation and career prospects. Therefore all allegations, including those made by relatives of patients, or concerns raised by colleagues, must be properly investigated to verify the facts so that the allegations can be shown to be true or false.
…
“The Investigation
1.13. Where it is decided that a more formal route needs to be followed (perhaps leading to conduct or capability proceedings) the Medical Director must, after discussion between the Chief Executive and Director of Human Resources and OD, appoint an appropriately experienced or trained person as Case Investigator….
1.14. The Case Investigator:
• Is responsible for leading the investigation into any allegations or concerns about a practitioner, establishing the facts and reporting the findings;
…..
• Must ensure that safeguards are in place throughout the investigation so that breaches of confidentiality are avoided as far as possible. Patient confidentiality needs to be maintained but any disciplinary panel will need to know the details of the allegations. It is the responsibility of the Case Investigator to judge what information needs to be gathered and how — within the boundaries of the law — that information should be gathered. The investigator will approach the practitioner concerned to seek views on information that should be collected;
• Must ensure that there are sufficient written statements collected to establish a case prior to a decision to convene any disciplinary panel, and on aspects of the case not covered by a written statement, ensure that oral evidence is given sufficient weight in the investigation report;
• Must ensure that a written record is kept of the investigation, the conclusions reached and the course of action agreed by the Director of Human Resources and OD with the Medical Director,-1.15. The Case Investigator does not make the decision on what action should be taken nor whether the employee should be excluded from work and may not be a member of any disciplinary or appeal panel relating to the case.
1.16. The practitioner concerned must be informed in writing by the Case Manager, as soon as it has been decided, that an investigation is to be undertaken, the name of the Case Investigator and made aware of the specific allegations or concerns that have been raised. The practitioner must be given the opportunity to see any correspondence relating to the case together with a list of the people that the Case Investigator will interview. The practitioner must also be afforded the opportunity to put their view of events to the Case Investigator and given the opportunity to be accompanied.
1.17. At any stage of this process — or subsequent disciplinary action — the practitioner may be accompanied in any interview or hearing by a companion.
1.18. The Case Investigator has discretion on how the investigation is carried out but in all cases the purpose of the investigation is to ascertain the facts in an unbiased manner. Investigations are not intended simply to secure evidence against the practitioner as information gathered in the course of an...
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