Sasha Burn v Alder Hey Children's NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Elisabeth Laing LJ |
| Judgment Date | 30 November 2021 |
| Neutral Citation | [2021] EWCA Civ 1791 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2021/1211 |
[2021] EWCA Civ 1791
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
Mrs Justice Thornton
[2021] EWHC 1474 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Singh
and
Lady Justice Elisabeth Laing
Case No: A2/2021/1211
Betsan Criddle and Benjamin Jones (instructed by the Medical Protection Society) for the Claimant
Simon Gorton QC (instructed by Weightmans LLP) for the Respondent
Hearing date: 21 October 2021
Approved Judgment
INTRODUCTION
The Claimant in these proceedings, who is the Appellant before us, is a consultant paediatric neurosurgeon employed by the Respondent, the Alder Hey Children's NHS Foundation Trust (“the Trust”). She was the consultant with responsibility for the care of a child to whom I will refer as A between 1 and 4 December 2017. On the evening of Sunday 3 December a surgical fellow, Ms Dr Marnet, performed an operation to drain fluid from A's brain. Unfortunately A's condition deteriorated and a further operation had to be performed in the small hours of the following morning. The Claimant, as the consultant on call, was in communication with the surgeon by text and phone but did not come in to the hospital. A few days later A died.
In early 2020 the Trust commenced a formal investigation into, among other things, the Claimant's clinical decision-making in relation to A's care. The investigation was conducted in accordance with its policy Handling Concerns about Conduct, Performance & Health of Medical & Dental Staff (“the Policy”). The Claimant was restricted from all clinical duties pending its outcome.
A dispute has arisen about whether for the purpose of her participation in that investigation the Claimant should be supplied with copies of certain documents in the possession of the Trust. Most regrettably, the parties have been unable to resolve that dispute, and in December last year the Claimant commenced proceedings in the High Court seeking an injunction restraining the Trust from concluding the investigation until she had been given “the opportunity to be interviewed having had sight of all documents related to the investigation”, together with an injunction requiring the disclosure of all such documents and a declaration as to her contractual rights.
The investigation remains on hold, and the Claimant remains restricted from clinical duties, pending the outcome of these proceedings.
A speedy trial was directed and took place before Thornton J over three days at the end of April this year. By a clear and thorough judgment handed down on 18 June she dismissed the claim. This is an appeal against her decision, with permission granted by Bean LJ.
The Claimant has been represented before us by Ms Betsan Criddle, leading Mr Benjamin Jones, and the Trust by Mr Simon Gorton QC. Both Ms Criddle and Mr Gorton appeared below.
THE CONTRACT AND THE POLICY
Clause 17 of the Claimant's contract of employment states that if issues relating to conduct, competence and behaviour cannot be dealt with informally they will be resolved “through our disciplinary or capability procedures”.
It is common ground that the “procedures” referred to in clause 17 include the Policy. As its title makes clear, the Policy covers the whole range of potential concerns about a practitioner's conduct or performance. Section 1 – “Action when a Concern Arises” – provides for an initial investigation of concerns raised. That investigation may lead to the restriction of the practitioner's practice or their exclusion from work pending a final decision (section 2) and to one of three types of formal procedure which may lead to consequences for their employment: which procedure will be followed depends on whether the concerns arise from “conduct and disciplinary matters” (section 3), “issues of capability” (section 4) or ill-health (section 5). The procedures under sections 3 and 4 involve a full hearing before a panel at which a practitioner will typically give evidence and have the opportunity to cross-examine the Trust's witnesses on any disputed issues of fact.
The present case concerns the initial investigation stage. I can summarise the relevant provisions of section 1 as follows. Para. 1.6 provides that wherever the investigation relates to a “potentially serious concern”, including one where there has been an adverse effect on patient care, the Trust must appoint a “Case Manager”, who in the case of a consultant will be its Medical Director. The Case Manager will assess the nature of the concern and its seriousness, on the basis of the existing information, and decide “whether an informal approach can be taken to address the problem, or whether a formal investigation will be needed” (para. 1.12).
The provisions governing the formal investigation, if that is the route decided on, are at paras. 1.13–1.20, which are headed “The Investigation”. Para. 1.13 requires the Case Manager to appoint a “Case Investigator”. The duties of the Case Investigator are set out under a number of bullets in para. 1.14, but the only one to which I need refer is the fourth, which requires them to “avoid breaches of confidentiality so far as possible” and to “approach the practitioner concerned to seek views on information that should be collected”. Para. 1.15 makes it clear that the Case Investigator does not make any decision as to what action should be taken at the conclusion of the investigation: that is a matter for the Case Manager (see para. 1.20, which I set out below).
The provision which is central to this appeal is para. 1.16. It reads:
“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 [my emphasis]. 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.”
The remaining paragraphs of section 1 read, so far as material:
“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. In addition to statutory rights under the Employment Act 1999, the companion may be another employee of the NHS body; an official or lay representative of the British Medical Association, British Dental Association or defence organisation; or a friend, partner or spouse. The companion may be legally qualified but he or she will not be acting in a legal capacity.
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 investigation may clearly exonerate the practitioner or provide a sound basis for effective resolution of the matter.
1.19. If during the course of the investigation it transpires that the case involves more complex clinical issues than first anticipated, the case manager should consider whether an independent practitioner from another NHS body should be invited to assist.
1.20. Wherever possible, the Case Investigator should complete the investigation within 4 weeks of appointment and submit their report to the Case Manager within a further 5 days. The report of the investigation should give the Case Manager sufficient information to make a decision whether:
• There are concerns about the practitioner's performance that should be further explored by NCAS
• Restrictions on practice or exclusion from work should be considered
• There is a case of misconduct that should be put to a conduct panel; (see Section 3)
• There are intractable problems and the matter should be put before a capability panel; (see Section 4)
• There serious concerns about the practitioner's health that should be considered by the Trust's occupational health service; (see Section 5)
• There are serious concerns that should be referred to the GMC or GDC;
• No further action is needed.”
(The NCAS is the “National Clinical Assessment Service”, which is the arm of the NHS which assists Trusts with issues about professional competence. The GMC and GDC are the General Medical Council and the General Dental Council.)
The Procedure is adopted verbatim (at least so far as concerns the provisions with which we are concerned) from the Department of Health's document Maintaining High Professional Standards in the Modern NHS (“the MHPS”). The background to the introduction of the MHPS is explained in the judgment of Lord Hodge in Chhabra v West London Mental Health NHS Trust [2013] UKSC 80, [2014] ICR 194, at paras. 3–8 (pp. 196–198), and I need not give details here.
THE DOCUMENTS IN ISSUE
As appears from the terms of the relief sought, it is the Claimant's case that she is entitled to see “all documents related to the investigation”. Although that is indeed her position as a matter of principle, the particular context for the dispute is more specific. I can sufficiently summarise...
To continue reading
Request your trial
-
Ms A Walters v Crisis UK: 3200654/2021
...(or partly in response) to that breach?” 108. However, as Lord Justice Singh held in Burn v Alder Hey Children’s NHS Foundation Trust [2021] EWCA Civ 1791; [2022] ICR 492 (30 November at ¶ 46, “the law does not imply a general obligation to act fairly into a contract of employment.” As such......
-
Mr T E Gorczyca v Global Outdoor Media Ltd: 2203558/2021
...as distinct to the dismissal process, fairly was also discussed in obiter remarks made in Burn v Alder Hey Children’s NHS Trust [2021] EWCA Civ 1791. In this case, Underhill and Singh LJJ both stated that there was or may be such a duty, but it did not form part of the reasoning for the cas......
-
Dr J McCulloch v Forth Valley Health Board: 4105355/2023
...reference was made to obiter comments of LJ Singh para 46, 47 and 48 of Burn v Alder Hey Children’s NHS 20 Foundation Trust [2021] EWCA Civ 1791 “… it must be recalled that fairness can have either a substantive aspect or a procedural aspect. I can well see that the common law will not impl......
-
Mr T E Gorczyca v Global Outdoor Media Ltd: 2203558/2021
...as distinct to the dismissal process, fairly was also discussed in obiter remarks made in Burn v Alder Hey Children’s NHS Trust [2021] EWCA Civ 1791. In this case, Underhill and Singh LJJ both stated that there was or may be such a duty, but it did not form part of the reasoning for the cas......