Skidmore v Dartford & Gravesham NHS Trust

JurisdictionEngland & Wales
JudgeLORD JUSTICE ALDOUS,Lord Justice Keene,LORD JUSTICE KEENE,SIR CHRISTOPHER SLADE
Judgment Date15 January 2002
Neutral Citation[2002] EWCA Civ 18
Docket NumberA1/2001/0629
CourtCourt of Appeal (Civil Division)
Date15 January 2002

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice

Strand

London WC2

Before

Lord Justice Aldous

Lord Justice Keene

Sir Christopher Slade

A1/2001/0629

Frederick David Skidmore
Appellant
and
Dartford & Gravesham NHS Trust
Respondent

MR T BARNES QC (Instructed by Messrs Le Brasseur J Tickle, London WC2B 5HA) appeared on behalf of the Appellant

MR M DOUGLAS (Instructed by Messrs Braches, London EC4A 1AG) appeared on behalf of the Respondent

LORD JUSTICE ALDOUS
1

I invite Lord Justice Keene to give the first judgment.

LORD JUSTICE KEENE
2

This appeal against a decision of the Employment Appeal Tribunal raises once again the issue of the meaning of the term "professional conduct" as used in the Department of Health Circular, HC (90)9, entitled Disciplinary Procedures for Hospital and Community Medical and Dental Staff.

3

The appellant was employed as a consultant surgeon at Joyce Green Hospital in Dartford, Kent. He had been so employed since 1980, initially by the Regional Health Authority and subsequently by the respondent. He became the senior consultant surgeon in 1990. In the period 1996 to 1997 various complaints arose about him, but in the event only one formed the basis of the respondent's decision to dismiss him. That dismissal was on the ground of gross personal misconduct. It followed an internal disciplinary hearing and took effect on 18th December 1997.

4

The appellant then claimed that he had been unfairly dismissed, a claim which was rejected by the Employment Tribunal. An appeal against that decision was in turn dismissed by the Employment Appeal Tribunal on 22nd February 2001.

5

The facts which gave rise to his dismissal by the respondent are not particularly complicated. On 3rd April 1997 the appellant performed an operation for gall bladder removal on a patient, Mrs A, at the Joyce Green Hospital. It was intended that the operation be carried out by keyhole surgery, that is to say laparoscopic surgery, during the initial stages of which a sharp three-pronged instrument known as a trochar is used to create by incision the channel through which other instruments can then be introduced. However, the operation was converted to open surgery when the patient's left iliac artery was punctured by the trochar. As a result there was a big blood loss and eight units of blood were transfused to the patient. There was a short period of cardio-pulmonary resuscitation, but it seems that the operation was eventually completed successfully.

6

Nonetheless, the patient's husband attended the hospital in a state of considerable anxiety and a week later, on 10th April 1997, he wrote to the Patient Relations Manager at the hospital seeking an explanation for the "very serious error", as he called it, which took place during the operation. He made a number of specific complaints in his letter, including the need for the second operation, by which he meant the open surgery.

7

This prompted the Patient Relations Manager to write to the appellant enclosing Mr A's letter. She asked the appellant to comment on the aspects of the complaint appropriate to his area. She also pointed out that the formulation of the response by the Chief Executive to the complaint had to be based on the factual content of the appellant's report, which should address in detail each issue raised in the letter. She also reminded the appellant of the respondent's responsibility under the Patients Charter and the New Complaints Procedure to respond to complaints within 20 working days.

8

Before replying to that letter, the appellant wrote to Mrs A's general practitioner on 21st April to give "the details of my clinical findings". He stated that the trochar had failed during the operation to operate correctly and had caused a 3mm hole in the artery. He also said that he had explained the situation to the patient after the surgery and apologised for "the malfunction of the trochar". This letter was written on the same day that the appellant had seen Mrs A at the out-patient clinic.

9

However, Mr A had not been able to be present on that occasion, and so a meeting was arranged with both Mr and Mrs A on 29th April at a private hospital where the appellant was engaged on that day. Also present were the anaesthetist from the operation and a representative of the Community Health Council. According to evidence subsequently given by that representative during the disciplinary proceedings, the appellant told those present that the equipment had been faulty and that the safety mechanism which should ensure that the needle did not penetrate too far had failed to operate. He also stated that the instrument had been returned to a representative of the supplier. He estimated the total blood loss at two units, though two more units had been transfused post-operatively.

10

On the same day the appellant replied to the letter from the Patient Relations Manager at the hospital. He dealt at length with the operation. In the course of that lengthy letter describing what had happened, he stated that:

"The total blood loss from this wound was approximately 2 units (1000 cc)."

And later said:

"Total blood loss at operation was approximately 2 units. She was somewhat over transfused after surgery, her [haemoglobin] increasing to 16.2 gms after a total of 4 units transfused."

Also in the letter he explained that he had apologised when he saw Mrs A on the ward the day after the surgery:

"… not for the error, but for the malfunction of the piece of equipment which had caused this recognised complication of Laparoscopic surgery."

He also explained:

"I have made it clear to him [Mr A] that the representative of the company supplying the instrument has collected this trochar and returned it to the parent company for inspection."

11

I have set out those statements of the appellant in some detail because they were of crucial importance in the disciplinary proceedings against him.

12

The Chief Executive of the respondent conducted a hearing into an allegation that the appellant had sought deliberately to mislead the patient and her family, the Community Health Council and the Chief Executive by his statements about the amount of blood transfused and about the trochar. The Chief Executive concluded that the appellant had lied about the amount of blood loss, and about the trochar having been faulty and having been returned to the manufacturer. She concluded that his employment should be terminated for gross misconduct. A subsequent appeal to the Board of the respondent failed.

13

Those procedures were the ones appropriate under the appellant's contract of employment to allegations of personal misconduct. From the outset the appellant had contended that the charges against him could not be so categorised, but were in fact allegations of professional misconduct to which a very different procedure applies. The respondent's disciplinary procedure document, incorporated into the appellant's contract of employment, states:

"This procedure applies to all staff employed by the Dartford and Gravesham NHS Trust, …

Matters relating to the professional conduct or competence of medical and dental staff will continue to be dealt with in accordance with the procedures laid down in HC (90)9."

14

The significance of the distinction between matters of professional conduct or competence on the one hand and those of personal conduct on the other is that the former are dealt with by an independent panel with a legally qualified chairman and at least an equal proportion of medical and lay members; while the latter are dealt with internally by the respondent's management with an appeal to a panel of the respondent's Board in the way already described. The distinction is one to be widely found in contracts of employment within the National Health Service and its Trusts.

15

In the present case the respondent decided that the allegations were ones of personal misconduct, not professional misconduct. The Employment Tribunal, relying on two decisions of Lightman J- Kramer v South Bedfordshire Community Health Care Trust 30 BMLR 34 and Chatterjee v City and Hackney Community Services NHS Trust 49 BMLR 55—took the view that the categorisation was a matter for the employer, only to be interfered with on grounds of bad faith, or in effect Wednesbury unreasonableness, neither of which existed in the present case.

16

The Employment Appeal Tribunal also had before it a later decision of Bell J, Dr B v X NHS Trust [2000] Lloyd's Rep Med 324, in which the court declined to follow the Kramer and Chatterjee cases, holding that a matter of construction of a contract did not involve public law concepts of reasonableness. The Employment Appeal Tribunal seems to have taken the view that these High Court decisions could be reconciled on the basis that in the Dr B case the contract did not provide for the categorisation decision to be challengeable only on judicial review grounds, whereas in Kramer and Chatterjee that must have been what the contracts provided. The Employment Appeal Tribunal then appears to have decided that the present contract fell into the latter group.

17

Nonetheless, the Tribunal spelt out its own view clearly enough: namely, that the allegations in this case were essentially of a personal nature, as it said. It went on, at paragraph 53 of its judgment, to state:

"The opportunity for the alleged misconduct arose out of an operation conducted by Mr Skidmore, but the circumstances in which the allegation came...

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