Skidmore v Dartford & Gravesham NHS Trust
| Jurisdiction | England & Wales |
| Judge | LORD BINGHAM OF CORNHILL,LORD CLYDE,LORD STEYN,LORD SCOTT OF FOSCOTE,LORD HUTTON |
| Judgment Date | 22 May 2003 |
| Neutral Citation | [2003] UKHL 27 |
| Court | House of Lords |
| Date | 22 May 2003 |
[2003] UKHL 27
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Steyn
Lord Clyde
Lord Hutton
Lord Scott of Foscote
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Steyn. I am in full agreement with it and I would accordingly dismiss the appeal and make the order which he proposes.
I. THE QUESTIONS.
My Lords,
This appeal raises important issues in respect of hospital disciplinary proceedings. The context is a contractual disciplinary code. Specifically, the issues arise because of the incorporation of Department of Health Circular HC (90)9 dated March 1990 in most hospital doctors' contracts. This Circular governed the hospital sector of the National Health Service before the creation of autonomous Trusts under the National Health Service and Community Care Act 1990. It is still in use by autonomous NHS Trusts. The disciplinary code provides for a difference in procedure depending on whether the case involves allegations of "professional conduct" or "personal conduct." The former is governed by a judicialised procedure under Circular HC 90(9). The latter is governed by less formal disciplinary procedures without, amongst other things, the right of legal representation. Inevitably this relatively complex structure gives rise to issues of demarcation concerning the category in which a particular case falls. Not surprisingly, this has given rise to legal problems and criticism: compare Raymond, "The Employment Rights of the NHS Hospital Doctor" in "Doctors, Patients and the Law", Dyer, ed (1992), at p 194; the Department of Health Consultation Paper dated November 1999 entitled "Supporting doctors, protecting patients"; and the NHS Executive's Summary of the responses to the Consultation Paper, at section 4. There has been a difference of judicial view reflected in a number of decisions to which it will be necessary to turn. Two questions dominate the debate. They are:
Both these questions arise in the present appeal.
II. THE OPERATION AND THE AFTERMATH.
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(1) Who decides on the categorisation of a case?
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(2) How is the line between professional and personal conduct to be drawn?
In April 1997 Mr Skidmore was a consultant surgeon at the Joyce Green Hospital. On 3 April 1997 Mr Skidmore operated on Mrs A for the removal of a gall bladder. The method was keyhole surgery. During the surgical procedure the patient's left iliac artery was punctured by a sharp three pronged instrument. There was a large loss of blood. The operation had to be converted to open surgery. A surgeon, who had been operating in an adjacent theatre, was called to assist. There was a short period of cardio-pulmonary resuscitation. The patient had eight units of blood transfused during the operation and two further units transfused post operatively. On any view it was a serious episode with potential life threatening implications. But the operation was eventually completed successfully and Mrs A made a complete recovery.
Mrs A's husband sought an explanation from the patient relations manager who in turn asked for Mr Skidmore's comments. In two meetings Mr Skidmore gave his explanation first to Mrs A and then to Mrs A and her husband. The thrust of his explanation was to blame the episode on a faulty instrument and to suggest that the blood loss was normal, viz only two units, and that Mrs A had not arrested or required resuscitation. This version of events was in conflict with the contemporaneous notes of the operation made by the anaesthetist. In a written response Mr Skidmore expanded on his oral explanations.
III. THE DISCIPLINARY PROCEEDINGS.
Following further exchanges and investigations the Authority made a charge of personal misconduct against Mr Skidmore. The outline statement alleged that Mr Skidmore
"sought to deliberately mislead:
-The patient and her family
-Community Health Council
-The Chief Executive
through a series of statements and correspondence which he knew to be untrue …
"(Mr Skidmore) … set out to deceive the patient, her husband, the Community Health Council and her GP about the actual events that occurred in theatre and subsequently …
"Mr Skidmore set out to deceive the Chief Executive with information he knew not to be true."
The Authority had decided that this charge was properly a charge in respect of personal conduct within the meaning of the disciplinary code.
On 27 and 28 October 1997 the hearing took place before the Trust's Chief Executive. Dr Barker of the Medical Protection Society represented Mr Skidmore and Dr Key represented the management. The question whether the proceedings were properly constituted or whether the case should have been dealt with under the Circular HC (90)9 procedure governing professional conduct was argued as a preliminary point. The Chief Executive decided that the allegations were of personal and not professional misconduct and that as a result she had jurisdiction to deal with the complaint. Oral evidence was then heard from witnesses on behalf of both parties. On 20 November 1997 the Chief Executive delivered her reasoned decision. She concluded that Mr Skidmore had falsely told Mr and Mrs A that 2 units had been transfused in the theatre when in truth 8 units had been transfused and that he had stated as a fact that the instrument was faulty and had been returned to the manufacturer for inspection when this was clearly not the case. She concluded that Mr Skidmore had lied and had continued to be untruthful when he appeared before her. She decided that he should be dismissed with immediate effect.
Mr Skidmore appealed to an appeal panel of the Trust Board. On 2 December 1997 an appeal panel consisting of the Trust chairman, the finance director, and three non-executive directors heard the appeal. The question of the correct procedure was again dealt with as a preliminary point. After hearing submissions the panel decided that the allegations were properly dealt with under the internal disciplinary procedures. The hearing continued. The Chief Executive gave evidence before the panel and was cross-examined by Mr Skidmore's representative, Dr Panting. The panel also heard evidence from Mr Skidmore, 2 witnesses who had given evidence below and also a local general practitioner who had not. On 18 December 1997 the panel delivered its decision. It found that Mr Skidmore's conduct constituted gross misconduct and that summary dismissal had been appropriate.
Annex C of HC(90)9 requires the Secretary of State on application to refer to a panel the question whether an applicant's appointment is being terminated on the sole ground of personal misconduct. Mr Skidmore appealed under Annex C. By letter dated 11 June 1998 the Secretary of State rejected the appeal on the basis that he had no jurisdiction in accordance with the decision of the Court of Appeal in R v Secretary of State for Health, Ex p Guirguis [1990] IRLR 30, as Mr Skidmore had been dismissed without notice.
IV. THE PROCEEDINGS ALLEGING UNFAIR DISMISSAL.
Mr Skidmore than applied to an industrial tribunal (now an employment tribunal) alleging unfair dismissal. The grounds of his application were twofold, viz that the wrong procedures had been adopted and that the complaint was without substance. On 4 August 1999 the tribunal dismissed the application by a majority.
Mr Skidmore appealed to the Employment Appeal Tribunal on a number of grounds. One ground was that the wrong procedure had been adopted. On 22 February 2001 the EAT dismissed the appeal. Relying on decisions of Lightman J in Kramer v South Bedfordshire Community Health Care Trust [1995] ICR 1066 and Chatterjee v City and Hackney Community Services NHS Trust (1998) 49 BMLR 55, the EAT took the view that, absent bad faith or Wednesbury unreasonableness, the employer's decision on categorisation was final. In any event, the EAT concluded that the case against Mr Skidmore was essentially of a personal nature.
V. THE COURT OF APPEAL DECISION.
In an unreserved judgment, given on 15 January 2002 by Keene LJ with the agreement of Aldous LJ and Sir Christopher Slade, the Court of Appeal unanimously allowed Mr Skidmore's appeal: [2002] ICR 403. Following a recent decision of the Court of Appeal in Saeed v Royal Wolverhampton Hospitals NHS Trust [2001] ICR 903, Keene LJ held that the decision of the employer must comply with the terms of the contract. Keene LJ further held that on the facts the decision of the employer on categorisation was wrong: the case was one involving professional conduct. The appeal before the House challenges the decision of the Court of Appeal on both points. Before directly addressing these issues it is necessary to set out critical features of Circular HC (90)9 and to explain the conflict of judicial decisions.
VI. CIRCULAR HC 90(9).
The Circular is a lengthy document. For present purposes it is only necessary to set out a few extracts from it. The Circular draws a distinction between "personal conduct", "professional conduct" and "professional competence". Those categories of allegations of misconduct are defined in paragraph 3 of the Circular as follows:
"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."
The Circular then provides, in Annex B:
"There are broadly three types...
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