Raj Kumar Mattu v University Hospitals Coventry and Warwickshire NHS Trust
| Jurisdiction | England & Wales |
| Judge | THE HON. MR JUSTICE EADY,The Hon. Mr Justice Eady |
| Judgment Date | 14 July 2006 |
| Neutral Citation | [2006] EWHC 1774 (QB) |
| Date | 14 July 2006 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ06X01175 |
[2006] EWHC 1774 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon. Mr Justice Eady
Case No: HQ06X01175
John Hendy QC and Marcus Pilgerstorfer (instructed by RadcliffesLeBrasseur) for the Claimant
Andrew Hillier QC and Jane McCafferty (instructed by Beachcroft LLP) for the Defendant
Hearing dates: 20 and 21 June 2006
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.
Introduction
1. This matter was brought on by way of speedy trial and argued before me on 20 and 21 June 2006. There are a number of issues to be resolved, for the most part concerning the terms of what is called the Serious Professional Misconduct Procedure, which derives from the Circular HC(90)9 of the Department of Health, and which formed at all material times an important part of the contractual terms governing the employment of consultants in the Health Service and, in particular, the relationship between the Claimant in these proceedings, Dr Raj Kumar Mattu, and the Defendant, the University Hospitals of Coventry & Warwickshire NHS Trust ("the Trust").
2. Dr Mattu was suspended on 21 February 2002 while allegations against him were investigated by a Panel, appointed in accordance with the above Procedure, with a view to making findings of fact, to expressing a view on "fault" in the light of those facts, and making recommendations where appropriate as to any disciplinary action.
3. The Panel sat under the chairmanship of Mr Andrew Stafford QC between January and May 2005 and submitted its final report (in two parts, as contemplated by the Procedure) on 26 March 2006. Meanwhile, Part 1 had been submitted in draft in December 2005. It would seem to be clear, in this case at least, that the implementation of the Procedure can be time-consuming, cumbersome and expensive. Much will depend on the facts of the individual case and, to a large extent, on the practice and procedure which the Panel decides to adopt. In this case, there was accorded a right to legal representation, and oral evidence was taken and submissions made in a manner closely approximating to that applying in civil litigation. I understand that the Procedure has subsequently been abandoned and replaced, probably with a view to avoiding complexity and delay so far as possible. With effect from June 2005, I was told, there would no longer be the right to an independent inquiry panel or to legal representation. That is, however, of no relevance to these proceedings, since everyone agrees that the Procedure governed relations between the parties, and I must determine the issues arising before me in the light of that fact.
4. I am grateful to Mr Hillier QC and Mr Hendy QC who appeared, respectively, for the Trust and for Dr Mattu for their detailed and illuminating submissions. I must now turn to the statutory and contractual framework which forms the background against which the outcome must be determined.
The Disciplinary Procedure
5. As was noted by Lord Steyn in Skidmore v Dartford & Gravesham NHS Trust [2003] ICR 721, 726 at [13]:
"The terms contained in HC (90)9 were imposed upon doctors by Regulation 3 of the National Health Service (Remuneration and Conditions of Service) Regulations 1991 (S/I 1991/481). It is now part of the � the employment contracts of almost all NHS doctors".
6. This was the origin of the detailed disciplinary code which the Trust sought to implement in this case. It is appropriate to begin by setting out the relevant terms of the Medical & Dental Staff Disciplinary Procedure:
"1. INTRODUCTION
1.1 The procedures set out below are designed to ensure that the fullest and fairest consideration is accorded to medical and dental practitioners in the event of incidents or complaints regarding their conduct or competence.
1.2 The procedures will apply to all medical and dental staff substantively employed within the Trust.
1.3 The procedure(s) to be followed following allegations of misconduct will depend on the nature of the allegation. In determining this the following definitions will apply:-
PERSONAL CONDUCT � Performance or behaviour of a practitioner due to factors other than those associated with the exercise of medical or dental skills.
PROFESSIONAL CONDUCT � Performance or behaviour of a practitioner arising from the exercise of medical or dental skills.
PROFESSIONAL COMPETENCE � Adequacy of performance of a practitioner related to the exercise of their medical or dental skills and professional judgment.
Where the nature of the alleged misconduct is disputed the matter shall be referred to a panel comprising the Medical Director, Chairman of the Senior Medical Staff Committee and a consultant from outside the Trust acceptable to both parties, who shall determine the procedure to be followed.
1.4 Additionally, allegations or complaints may be made regarding a practitioner's repeated failure to honour contractual commitments.
1.5 To determine the appropriate procedure to invoke in any particular case, a Preliminary Assessment will be made by the Medical Director. Preliminary Assessments will be made as indicated in paragraph 2 below.
1.6 Where the Preliminary Assessment indicates that disciplinary action is necessary, one of the following procedures will be utilised:
a) In cases of Personal Misconduct � the Trust's general Disciplinary Procedure �;
b) In cases of Professional Misconduct or Professional Incompetence, where action short of dismissal is deemed to be the likely outcome, and in cases of failure to honour contractual commitments � The Review Procedure � ;
c) In cases of Professional Misconduct or Professional Incompetence, where dismissal may well be the outcome � the Serious Professional Misconduct/Incompetence Procedure, including Appeal against Termination of Employment �
1.7 Where, in the Medical Director's opinion, a practitioner's continued attendance at the workplace is or would be prejudicial to an investigation or good working, or is not in the interests of patients, the public or other staff, the practitioner may be suspended from duty on full pay pending the outcome of the preliminary enquiries or the full investigation. In each case, consideration and implementation of suspension shall at all times be in accordance with the Health Service Guidelines set out in HSG (94) 49.
1.8 Authority to suspend or to extend a suspension period is vested in the Medical Director.
1.9 The time limits set out in these procedures shall apply in all cases, unless there is mutual agreement to vary them.
1.10 Nothing contained in this procedure shall remove the right of practitioners appointed under Whitley Council Terms and Conditions of Service from appealing to the Secretary of State under Paragraph 190 of the Terms and Conditions of Service for Hospital Medical and Dental Staff, where he/she considers that his/her appointment is being unfairly terminated.
2. PRELIMINARY ASSESSMENT
2.1 A preliminary assessment will be conducted by the Medical Director and Chairman of the Senior Medical Staff Committee to ascertain whether or not a prima facie case exists which warrants disciplinary action being taken. The allegations will normally be discussed with the practitioner concerned.
2.2 This Assessment may determine that:
a) there is no substance to the allegation or complaint and that no further action is necessary,
b) the practitioner may be experiencing health problems �,
c) there is substance to the allegation or complaint that either:
(i) the Trust's general Disciplinary Procedure for Personal Misconduct shall be invoked �;
(ii) the Review Procedure shall be invoked �;
(iii) the matter warrants referral to the Chief Executive for the Serious Professional Misconduct/Incompetence Procedure to be invoked �;
and in all instances the practitioner will be advised in writing accordingly.
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4. THE REVIEW PROCEDURE
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4.7 When the Review Panel completes its review, it shall provide a written report to the Chief Executive, signed by the three panel members, in two parts:-
a) Part One shall detail the evidence submitted or received by the Panel, a copy of which will be provided to the practitioner and all parties who gave evidence. 14 days will be allowed for comments on factual accuracy.
b) Part Two shall advise if and to what extent the practitioner is at fault, and make recommendations. Part Two shall be available only to the Chief Executive for his/her further action. The Review Panel itself shall not have any disciplinary powers.
4.8 After considering any comments received as to factual accuracy, the Chief Executive shall decide what action is appropriate.
4.9 If disciplinary action is decided upon, the Chief Executive will arrange a disciplinary hearing involving the Medical Director and will convey to the practitioner the substance of the panel's views and recommendations in good time before the hearing. Depending upon the circumstances and gravity of the case, he/she will issue either:-
a) a first written warning, or
b) a final written warning
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5. SERIOUS PROFESSIONAL MISCONDUCT/ INCOMPETENCE PROCEDURE
5.1 Unless the Chief Executive considers that there is no case to answer, the practitioner should be advised immediately in writing and be given one week in which to seek advice and make representations before any decision to proceed is made. If the Chief Executive decides that there is a case to answer but there is no substantial dispute as to the facts, any further action should be in accordance with paragraphs 5.11 to 5.14 below. If there is a dispute as to the facts, the...
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