Saeed v Royal Wolverhampton Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALE,LORD JUSTICE POTTER |
| Judgment Date | 20 December 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J1220-25 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2000 |
| Docket Number | Case No: 2000/2194/A2 |
[2000] EWCA Civ J1220-25
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand,
London, WC2A 2LL
President
Lord Justice Potter and
Lady Justice Hale
Case No: 2000/2194/A2
Mr Stephen Miller QC and Mr Andrew Hockton (instructed by Messrs Le Brasseur J Tickle) for the Appellant
Miss Mary O'Rourke (instructed by Messrs Browne Jacobson) for the Respondent
Introduction
This appeal concerns the definition of the term 'professional conduct' as used in HC(90)9, a Department of Health Circular published in May 1990, headed 'Disciplinary Procedures for Hospital and Community Medical and Dental Staff'. It is widely used by National Health Service Trusts, including the respondent, in determining the appropriate disciplinary procedure to use when allegations are made about a doctor's behaviour. The appellant doctor was employed by the respondent NHS Trust. A complaint was made about his conduct in relation to a female patient. The issue in these proceedings is whether he was entitled under the terms of his contract to have the complaint dealt with as a matter of 'professional conduct', for which an independent disciplinary procedure was prescribed, or whether his employers were entitled to treat it as a matter of personal conduct, for which a less elaborate internal disciplinary procedure was prescribed. The answer turns upon the particular terms of his contract of employment. There are, however, conflicting decisions in the High Court in similar cases and the Judge himself gave permission to appeal.
Facts
The appellant was first employed by the defendant in March 1997 on a two year general medicine rotation. In February 1999 he began a two year general practice rotation. His first six months was as a senior house officer in Obstetrics and Gynaecology. His second six months beginning in August 1999 was in Accident and Emergency. His third six months was due to begin in February 2000 in Paediatrics but was never taken up. His fourth six months was to be at a different hospital in the employment of a different trust.
On 18 September 1999, a Ms L attended the Accident and Emergency Department with a swollen, bruised and disjointed little finger. She went into a cubicle to see the doctor. According to the investigating officer's report,
'The doctor asked Ms L what the problem was and she explained she felt uneasy as it was only a finger injury and other patients coming into the hospital had greater problems. Ms L was standing by the sink and the Doctor examined her finger.
The Doctor then asked her to take off her grey fleece and lie on the bed as he was going to examine her, she had underneath a blue tight fitting lycra top. Ms L experienced pain in the arm where the finger injury was. The Doctor then proceeded to tap along the outside of the said arm towards the neck and down her back, he then asked her to move her head forward.
Ms L at this point of the examination was starting to feel uncomfortable and again asked if this was the correct procedure for a finger injury.
The Doctor then began moving down Ms L's cleavage in a tapping motion and then moved to Ms L's left breast going down the "nipple line" and moving to the right breast "nipple line" with the same tapping motion. Ms L at this point became very anxious and started to stiffen up. The doctor then started rubbing Ms L's tummy and asked if she was feeling sick.
The doctor finished his examination by putting his arm round her and drawing her close to him which she took as maybe his way of comforting or reassuring her. The Doctor left the cubicle saying that he was going for a second opinion.'
Ms L complained and the doctor was suspended pending investigation. His employers first planned to treat it as a matter of 'personal conduct'. Following representations from his solicitors they decided to treat it as a matter of 'professional conduct'. Having taken legal advice they reverted to their previous plan to treat it as 'personal conduct'. Proceedings were launched for interlocutory relief to prevent the internal disciplinary hearing going ahead. This was refused by Gage J, who granted permission to appeal but refused a stay of execution. This Court also refused a stay. The hearing proceeded and the doctor was dismissed.
Initially he sought a declaration that the hearing was invalid and the quashing of the decision to dismiss him. Mr Miller QC accepts that these are private law proceedings in which that remedy is not available. Instead he seeks damages for breach of the doctor's contract of employment.
The contract
Paragraph 8 of the terms and conditions of service provides:
'The Trust has an agreed disciplinary procedure which includes the right of appeal against disciplinary action or dismissal. A copy is attached to this document and you should be aware of the rules and contents which form part of the terms of your contract.'
Paragraph 1.3 of the Disciplinary Policy, Procedures and Rules provides:
'The policy applies to all staff employed under a contract of employment with the Trust, including cases of misconduct by medical and dental staff. However, cases where the professional conduct and/or competence of medical and dental staff are concerned will be dealt with under HM(61)112, HC(90)9 and HSG 94(49).'
Section 7 of the Policy deals with the internal disciplinary procedures, which were followed in this case.
The alternative procedures for cases concerning professional conduct and/or competence are laid down in HC(90)9. Paragraph 3 of the main Circular is headed 'Definitions':
'3. The procedure(s) to be followed following allegations of misconduct will depend upon the nature of the allegation. It is recognised that authorities sometimes have great difficulty defining the nature of the conduct which is the subject of an allegation, and the following definitions have been agreed between the Departments and the professions:
PERSONAL CONDUCT —Performance or behaviour of practitioners due to factors other than those associated with the exercise of medical or dental skills.
PROFESSIONAL CONDUCT —Performance or behaviour of practitioners arising from the exercise of medical or dental skills.
PROFESSIONAL COMPETENCE —Adequacy of performance of practitioners related to the exercise of their medical or dental skills and professional judgment.'
Annex B deals with disciplinary proceedings relating to medical and dental staff. Paragraph 3 reads:
'3. There are broadly three types of case which may involve medical or dental staff:
a. cases involving personal conduct;
b. cases involving professional conduct;
c. cases involving professional competence.
It is for the Authority to decide under which category a case falls. Guidance on the definition of each category is given in paragraph 3 of the Circular.'
Paragraph 4 of Annex B provides that in personal conduct cases, the position of a doctor or dentist is no different from that of other health service staff. The matter will be dealt with under the general Whitley Council terms (in this case, under section 7 of the disciplinary policy). Professional conduct or competence cases however are dealt with under a more elaborate procedure involving an independent panel of inquiry consisting of a legally qualified chairman and equal numbers of professional and lay people or in competence cases with professionals or have one in the same discipline as the doctor whose competence is in question. The procedural timetable laid down totals up to 22 weeks for all stages to be completed.
The issues
It is clear from paragraph 1.3 of the disciplinary policy, which is expressly incorporated into the contract of employment, that the doctor is entitled to the independent inquiry if the case is one of either professional conduct or professional competence. It was rightly conceded by Miss O'Rourke on behalf of the Trust that the doctor was also entitled to the independent inquiry if this was an 'overlap' case involving both personal and professional conduct. The issues, however, were:
(1) Who decided into which category the case fell, and on what basis could the court interfere with that decision?
(2) Into which category did this case fall?
Who decides?
One...
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