Mr Emad Aldin Smo v Hywel DDA University Health Board
| Jurisdiction | England & Wales |
| Judge | Mr Roger ter Haar |
| Judgment Date | 25 July 2019 |
| Neutral Citation | [2019] EWHC 1973 (QB) |
| Date | 25 July 2019 |
| Court | Queen's Bench Division |
| Docket Number | Claim No. QB-2019-00290 |
[2019] EWHC 1973 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Roger ter Haar QC
Sitting as a Deputy High Court Judge
Claim No. QB-2019-00290
Ms Betsan Criddle (instructed by Radcliffes Le Brasseur) for the Claimant
Mr Giles Powell and Ms Nicola Newbegin (instructed by Blake Morgan) for the Defendant
Hearing date: 4 th July 2019
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.
Mr Roger ter Haar QC
Mr Roger ter Haar QC:
There is before the Court an application for an interim injunction pending the trial of the substantive issues in this action.
The application was argued before me by counsel with enormous experience in the areas of professional conduct and employment law in particular in respect of the issues involving the relationship between hospitals and hospital trusts and consultants (as shown by the fact that the three counsel appearing before me have appeared in a wide range of the leading cases relevant to these issues) and I wish at the outset of this judgment to thank all three for the considerable assistance I received from them.
The Claimant is employed by the Defendant as a consultant colorectal surgeon, albeit that he has been excluded (suspended) from work since the 21 st October 2016 pursuant to a disciplinary process into allegations about his capability and conduct.
The event which has triggered the present proceedings, put shortly, is that, whilst the disciplinary process is still ongoing, the Defendant has decided to start an investigation into whether there has been a breakdown of working relationships involving the Claimant, and, if so, what steps can or should be taken in respect of that breakdown of relationships.
It is the Claimant's case that the commissioning and continuance of the working relationships investigation constitute breaches by the Defendant of the Claimant's contract of employment.
The present procedural position
The application before the Court was issued on the 24 th June 2019. It was accompanied by a draft order and draft Particulars of Claim.
At the time of the hearing before me the Particulars of Claim remained in draft and the claim had not been served.
The relief sought in the draft Particulars of Claim is:
“1. An injunction restraining the Defendant, by itself, its employees or agents or otherwise howsoever from:-
i) requiring the Claimant to attend a meeting with Dr. Diggle on 25 June 2019 or at any time pursuant to the purported SOSR investigation;
ii) continuing with the purported SOSR investigation and from taking any steps consequent upon that report;
iii) continuing with the purported SOSR investigation and from taking any steps consequent upon any investigation report generated therein prior to the conclusion of the UPSW process, including but not limited to hearing the Claimant's appeal against categorisation.
2. A declaration in respect of the Claimant's contractual rights as aforesaid.”
The draft Order sought is as follows:
“1. The Defendant shall not, by itself or its employees or agents require the Claimant to attend a meeting with Dr. Diggle on 25 June 2019 or at any time pursuant to its SOSR investigation.
2. The Defendant shall not continue with its SOSR investigation or take any steps consequent upon that investigation:
a) prior to the conclusion of the UPSW process, including but not limited to hearing the Claimant's appeal against categorisation; or
b) at all.”
Thus, the order sought was in the form of a final order: however, before me Ms. Criddle confirmed that what she was seeking on behalf of the Claimant was an injunction pending trial.
Before me it was the position of both counsel that there should be an order for speedy trial. I agree that that is entirely appropriate in the circumstances set out below. The hope is that such a hearing could be fixed during October 2019. In exercising my discretion below, I do so on the basis that such a fixture will be forthcoming. If not, then it might be necessary to reconsider the order which I intend to make.
As was agreed between counsel and the Court, at the time of the formal handing down of this judgment the Court will make whatever directions are necessary to enable the trial to take place.
American Cyanamid
It is common ground that the test which the Court is required to apply in order to determine whether or not to grant interim relief is the well-known test in American Cyanamid [1975] 1 A.C. 396 as clarified in subsequent case law – see National Commercial Bank Jamaica Ltd v Olint Corpn Ltd [2009] 1 W.L.R. 1405, per Lord Hoffmann, namely:
a) whether there is a serious issue or an issue with real prospects of success to be tried at trial;
b) are damages an adequate remedy? That includes consideration of whether a cross undertaking in damages is an adequate remedy for the Defendant;
c) where does the balance of convenience lie?
The Claimant's Contract of Employment
The Claimant is a consultant colorectal surgeon. The Claimant qualified with a Doctor of Medicine Diploma in 1998 from Aleppo University and was certified by the Arab Board of Health Specialities (General Surgery) in 2004. He was first entered on the General Medical Council Register in 2006, was admitted as a Fellow of the Royal College of Surgeons FRCS (Gen. Surg.) in 2009 and was entered on the GMC Specialist Register in March 2014.
The Defendant is the provider of acute, primary, community, mental health and learning disabilities healthcare services to the populations of Carmarthenshire, Ceredigion and Pembrokeshire. Amongst others, it is responsible for the Glangwili General Hospital in Carmarthen.
The Claimant entered into a Contract of Employment with the Defendant on or about the 22 nd December 2015. He commenced work at the Glangwili General Hospital on the 4 th January 2016.
Clause 7 of the Claimant's “Principal Statement of Main Terms and Particulars of Employment” (the “Principal Statement”) provides that:
“7.1 You will be managerially accountable to the Service Manager/General Manager and have ultimate accountability to the Chief Executive.
7.2 You will be professionally responsible to the Medical Director”.
Clause 9 of the Claimant's Principal Statement provides that:
“9.1 Wherever possible, any issues relating to conduct, competence and behaviour should be identified and resolved without recourse to formal procedures.
9.2 Otherwise these will be handled in accordance with employers' existing Medical and Dental Disciplinary procedures, and where these do not exist, this will be in accordance with WHC(90)22, WHC(82)17, and DGM(95)44, pending the outcome of negotiations on an All Wales Policy with the Joint Welsh Consultant Contract Committee (JWCCC) or any successor body.”
Upholding Professional Standards in Wales (“UPSW”)
With effect from the 1 st September 2015, the disciplinary procedure agreed between the Welsh Government, Welsh Local Health Boards and NHS Trusts with the British Medical Association in respect of the discipline of doctors and dentists in Wales is Upholding Professional Standards in Wales (“UPSW”). There is an equivalent, but not identical, procedure in England called Maintaining High Professional Standards in the Modern NHS (“MHPS”).
There is an issue in these proceedings as to whether UPSW is or is not incorporated into the Claimant's Contract of Employment. For the purpose of deciding whether to grant the interim relief sought, I do not need to decide that issue. I am satisfied, following the decisions in respect of the English MHPS in Kerslake v North West London Hospitals NHS Trust [2012] EWHC 1999 (QB) and Jain v Manchester University NHS Foundation Trust [2018] EWHC 3016 (QB) that it is well arguable that the UPSW was incorporated expressly or implicitly into the Claimant's Contract of Employment, so that there is at the very least a serious issue to be tried as to whether it was so incorporated.
In any event, the issue as to incorporation may not be significant, given that in paragraph 42 of the Defendant's Skeleton Argument for this hearing, it is accepted that the Defendant applied UPSW to its investigation into concerns that had been raised about the Claimant's conduct and capability.
However, what is important to note is that the Defendant says that UPSW does not apply to investigations relating to breakdowns in working relationships. The Defendant says that UPSW is expressly limited to the approach for addressing concerns about “capability, performance and conduct”. I do not understand Ms. Criddle to disagree with this as a general proposition.
Under UPSW, when a concern has arisen as to the capability or conduct or performance of a practitioner, the relevant Medical Director must first decide whether to carry out an investigation into the nature of the problem or concern. If so, a Case Manager is appointed. The role of the Case Manager is defined by paragraph 1.2 of UPSW as follows:
“The Case Manager's role will be to evaluate the nature of the problem or concern raised about a practitioner and to assess the seriousness of the matter based on available information. He/she will undertake an initial assessment of the concern(s) raised and will determine whether a formal investigation needs to be carried out or whether the issue can be resolved informally.
“Where it is determined that a formal investigation should be instigated the Case Manager will:-
i) Formulate the Terms of Reference for an investigation;
ii) Appoint a Case Investigator;
iii) Provide progress reports to the...
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