Mr Vaderbettu Vijay Kamath v Blackpool Teaching Hospitals NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Soole |
| Judgment Date | 22 October 2021 |
| Neutral Citation | [2021] EWHC 2811 (QB) |
| Docket Number | Case No: H90MA099 |
| Court | Queen's Bench Division |
[2021] EWHC 2811 (QB)
Mr Justice Soole
Case No: H90MA099
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre
Eleena Misra and Adam Ross (instructed by Medical Defence Shield) for the Claimant
Simon Gorton QC (instructed by Weightmans LLP) for the Defendant
Hearing dates: 28 June-1 July; 26–27 July 2021
Judgment Approved by the court for handing down
(subject to editorial corrections)
If this Judgment has been emailed to you it is to be treated as ‘read-only’. You should send any suggested amendments as a separate Word document.
The Claimant is a Consultant Orthopaedic Surgeon who has been employed by the Defendant Trust since February 2010. On 20 November 2019 he was excluded, initially for four weeks, from all clinical and non-clinical work pending an investigation into his care of three patients (A, B and C) in the period Saturday 26 to Monday 28 October 2019. Following the investigation the Defendant decided that the matter must proceed to a disciplinary hearing into allegations of gross misconduct. Pending that hearing, but interspersed with periods of ill-health, the Claimant's exclusion has been repeatedly renewed. By this action the Claimant alleges that the Defendant has in various ways acted in breach of contract in its investigation and decision and seeks relief by way of declaration and final injunctions; and in particular to restrain it from proceeding with the disciplinary process and from his continued exclusion.
By interlocutory Order dated 15 March 2021, and upon the Defendant undertaking not to proceed with a disciplinary hearing in the meantime, HHJ Sarah Richardson, sitting as a deputy High Court Judge, ordered an expedited trial of the action.
As pleaded, the claim includes allegations of bias (actual or apparent) and of bad faith on the part of the Defendant's Case Manager Dr Grahame Goode: see in particular POC para. 50(3) and Reply para.15. In opening, Ms Misra maintained the case of apparent bias. No allegations of bias or bad faith were put to Dr Goode in cross-examination; and that case (including apparent bias) was properly withdrawn at the outset of Ms Misra's closing submissions.
Outline
The Claimant has been employed by the Defendant since February 2010 and ordinarily works at its Blackpool Victoria hospital. He was the Head of the Trauma and Orthopaedics Department (‘the Department’) from November 2011 until January 2017, but had taken a sabbatical from that role in November 2015.
There have been long-standing, major and unresolved inter-personal issues within the Department, which included mutual complaints made between the Claimant and some of his colleagues. Following a complaint of bullying against the Claimant in January 2017 the Claimant accepted a written warning and stepped down as Head of Department. The Defendant has taken steps to consider the dysfunctionality of working relationships within the Department, including the commissioning of a Team Review of the Department by the NHS agency Practitioner Performance Advice (PPA) which prepared a confidential report (not seen by the Claimant) dated 9 July 2019.
The Claimant is employed pursuant to a standard contract of employment which contains nationally agreed terms and conditions of service for NHS Consultants. Clause 17 provides that any issues relating to his conduct, competence or behaviour will be resolved in accordance with the Defendant's disciplinary and capability procedures which will be consistent with the Maintaining High Professional Standards in the Modern NHS (‘MHPS’) framework.
The Defendant's policy and procedure entitled ‘Handling Concerns Procedure for Medical and Dental Staff’ (‘HCP’) seeks to give effect to the MHPS. It is agreed that HCP is incorporated by reference into the Claimant's contract; and provides that in the event of any conflict or lack of clarity, MHPS takes precedence over the HCP.
The Claimant agreed to provide weekend on-call cover for another Consultant Orthopaedic Surgeon who wanted to take leave from Friday 25 to Monday 28 October 2019, with the on-call ending at 0800 on 28 October (‘the October weekend’). He was rostered to work on that Monday (28) before departing the following day for authorised leave in India, returning to the UK on 16 November 2019.
Following his return, the Defendant's interim Medical Director, Dr Grahame Goode, on 20 November advised the Claimant that he was being investigated pursuant to the MHPS/HCP in connection with the care of three patients (A, B and C) who had been emergency admissions over the October weekend; and that pending investigation he would be excluded from all clinical and non-clinical work for four weeks.
For the purpose of these procedures Dr Goode was the appointed ‘Case Manager’ and Mrs Gillian Rose, a retired physiotherapist who did not work for the Defendant, was in due course appointed the ‘Case Investigator’.
Patient A was a 15 year old girl, admitted late on Saturday night (26 October) with a complex ankle injury. Her operation did not take place until the afternoon of Monday 28, performed by Mr Anoop Anand, Locum Consultant Orthopaedic Surgeon. Patient B was a man aged 88, admitted at 12.35 on 27 October with various comorbidities and what transpired to be a septic knee, and who later died. Patient C was a man admitted on the late evening of 27 October with a complex open humeral fracture. Surgery did not take place until Thursday 31 October, performed by Mr Vishwanath Shetty, Consultant Orthopaedic Surgeon.
Mrs Rose carried out her investigation pursuant to Terms of Reference provided by Dr Goode and produced her Investigation Report dated 13 February 2020. Following its receipt and review, Dr Goode decided that the matter must proceed to a disciplinary hearing on the grounds of alleged (gross) misconduct by the Claimant. The Claimant was so notified by letter dated 24 February 2020.
Until April 2020 the Claimant was represented by the Medical Defence Union (MDU) and the British Medical Association (BMA) who were involved in without prejudice negotiations for the consensual termination of his employment, for which there has been a partial waiver of privilege. The negotiations were inconclusive.
On 8 April 2020 the Claimant was signed off work on grounds of ill-health and in consequence the disciplinary hearing fixed for 23 April 2020 did not take place. He subsequently instructed his present solicitors Medical Defence Shield (MDS). By letter to the Defendant dated 31 July 2020 MDS raised a number of concerns about the alleged misuse of the relevant procedures; including that it had wrongly categorised the concerns as raising issues of conduct (HCP Part 4) rather than capability (Part 5); and in consequence had wrongly instituted disciplinary proceedings.
By response dated 12 August 2020 the Defendant rejected these objections and in particular stated that the allegations related to the Claimant's ‘conduct and probity’. The Claimant contends, and the Defendant disputes, that this was the first time that issues of probity had been raised with him.
By letter to the Defendant dated 25 August 2020 the Claimant raised a grievance which included the issue of categorisation. The Defendant declined to hear it as a grievance.
By ‘Letter before Claim’ dated 22 September 2020 MDS made complaints which included that Mr Anand had not been interviewed; that Mrs Rose had wrongly failed to obtain appropriate (i.e. orthopaedic) clinical input for her investigation; and that there had been no reference to probity concerns until the Defendant's letter of 12 August 2020. It invited the Defendant to reconsider the categorisation of the concerns; to undertake to carry out the hearing in line within the HCP Part 5 capability procedure; and to reconsider the Claimant's exclusion with a view to allowing him to undertake non-clinical work.
In consequence of that letter Dr Goode reconsidered his decision; and for that purpose obtained and considered further information which had not been before Mrs Rose; including from Mr Anand and Dr Saleem (Registrar). By letter dated 23 November 2020 he reaffirmed his decision on categorisation; and rejected the suggestion that probity had not been raised before 12 August. In respect of each of the three patients, he alleged that the Claimant had acted as he did for his own personal convenience and that this could constitute gross misconduct.
He also denied that it had been necessary for Mrs Rose to have specialist orthopaedic input. However he indicated that he would be willing to commission a ‘desktop’ review by an independent orthopaedic surgeon; and in due course instructed Mr Tony McEvoy to do so. By letter dated 27 January 2021 Mr McEvoy provided his ‘provisional thoughts’.
In the meantime the Claimant has remained excluded from all clinical and non-clinical work, save for substantial periods when he has been certified as medically unfit to work and on authorised sick leave.
On 26 February 2021 MDS issued proceedings on behalf of the Claimant. In this trial I heard oral evidence from the Claimant; and for the Defendant from Dr Goode, Mrs Rose, Dr Stephen Wiggans (Divisional Director for Scheduled Care (SC) from 2019; Deputy Medical Director from January 2021; Consultant Anaesthetist); Dr Jim Gardner (Non-Executive Director from September 2018 to December 2019; Executive Medical Director from January 2020); and Ms Lesley-Smith Payne (Deputy Director of HR and Organisational Development from October 2018). The Claimant adduced without objection the witness statement of Mr Russell Milner (Consultant Orthopaedic Surgeon at the hospital until March 2017; the...
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