Talib Al-Mishlab v Milton Keynes Hospital NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing |
| Judgment Date | 02 February 2015 |
| Neutral Citation | [2015] EWHC 191 (QB) |
| Court | Queen's Bench Division |
| Date | 02 February 2015 |
| Docket Number | Case No: HQ13X05112 |
[2015] EWHC 191 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Elisabeth Laing DBE
Case No: HQ13X05112
Mr Neil Sheldon (instructed by Berrymans Lace Mawer Solicitors) for the Claimant
Mr Ben Cooper (instructed by DAC Beachcroft LLP) for the Defendant
Hearing dates: 10 11 15 16 and 17 December 2014
Judgment Approved by the court for handing down
(subject to editorial corrections)
Introduction
This is a claim by Mr Talib Al-Mishlab ("the Claimant") for breach of contract against his employer, Milton Keynes Hospital NHS Foundation Trust ("the Trust"). The Claimant has been employed as a consultant since 2002 and has held a substantive consultant post with the Trust since 2004. He is a colorectal, laparoscopic and general surgeon.
He asks for a declaration that he has been excluded from his employment in breach of contract and an injunction requiring the Trust to permit him to return to clinical practice. He has been excluded from all clinical work since 3 March 2011. Before that, he had practised subject to restrictions, from July 2010. He also claims damages because as a result of his exclusion by the Trust he has been unable to practise privately and has lost his income from that work. He has been paid his salary throughout that period.
He has therefore been subject to restrictions on the work he could do, or excluded completely from doing any work, for over 4 years. Although the burden of proof is on the Claimant, I have to consider the length of this period very carefully against the relevant policy and contractual background; a document entitled "Maintaining High Professional Standards in the Modern NHS" ("MHPS"). The express purposes of MHPS include that NHS employers should only use exclusion in the most exceptional circumstances, when it is strictly necessary, for the shortest possible period, and that alternatives to exclusion must be considered. Under paragraph 35 of MHPS, there should normally be "a maximum limit of 6 months' exclusion, except for those cases involving criminal investigations of the practitioner concerned".
The Claimant was represented by Mr Sheldon, and the Trust by Mr Cooper. I am grateful to both counsel for their able and helpful submissions, and to both legal teams for the way in which they marshalled the many documents which have been generated by this case. Both counsel summarised the relevant facts by reference to what Mr Sheldon referred to as the significant milestones in the case, and I have relied heavily on their summaries for what I say about the facts in the next section of this judgment.
The facts
July 2010: the initial restrictions
At the relevant time, Dr Lanzon-Miller was the Trust's Medical Director. In a letter dated 2 July 2010 he raised concerns about the Claimant's surgical practice in the performance of "major colorectal surgery". He did not express concerns about any other aspect of his surgical practice. He identified a general concern about "behaviours" and, in particular, a "perceived reluctance to take advice."
Restrictions were then placed on the Claimant's practice pending investigation. The concerns expressed by Dr Lanzon-Miller were reflected in the restrictions placed on the Claimant's practice pending investigation. He was prohibited from doing "major" colorectal surgery. He was allowed to continue "less major surgery, outpatients, administrative work, teaching…..". Further details of the procedures the Claimant was still allowed to do were given in an e-mail dated 14 July 2010.
When the concerns were raised about his practice in June 2010, the Claimant supported an external review. In cross examination, the Claimant accepted that he did not have any objections to the Royal College of Surgeons (the "RCS") being the relevant external body. Dr Lanzon-Miller, Professor Wetherill and Dr Mehdi of the Trust explained in their evidence that the RCS, as the body ultimately responsible for training surgeons, provided the definitive standard on surgical practice. The purpose of bringing in the RCS was to get independent expert evidence about the Claimant's practice.
Mr Wetherill's first report
Professor Wetherill is the Trust's current Medical Director. At the relevant time, Mr Wetherill (as he then was) was a Clinical Director in the Trust. On 16 July 2010 Dr Lanzon-Miller appointed Mr Wetherill to investigate the case. The scope of the investigation was described to the Claimant by Mr Wetherill in the following terms:
"1. Your Laparoscopic Colorectal Surgery and its complication rates.
2. Your perceived attitude problems in terms of accepting advice."
On 15 October 2010 Mr Wetherill wrote to the RCS. He indicated briefly the "factors emerging" from his investigation. There were two strands: "Talib Al-Mishlab is regarded as an extremely pleasant and approachable Colorectal Surgeon" and "Concerns have been expressed by a number of clinical colleagues (both medical and para-medical) about his reluctance to accept that his patients have complications, as a result of which there appears to be a reluctance to further investigate/treat those complications in a timely manner".
Mr Wetherill completed his investigation report on 14 December 2010. A copy was sent to the Claimant for his comments. The report is thorough and detailed. It was based on a review of the available documents, and on interviews with 29 of the Claimant's clinical colleagues. The Claimant himself was not interviewed. It is the most extensive survey of the opinions held by clinical staff at Milton Keynes Hospital about the Claimant's behaviour and personality. In the course of their assessment in early 2013, by contrast, the performance assessors from the General Medical Council ("the GMC") interviewed 8 members of clinical staff at Milton Keynes Hospital. 26 of Mr Wetherill's interviews were recorded and transcribed.
Mr Wetherill could not reach any conclusion about the Claimant's comparative complication rates. The views he expressed in his report reflected the two strands he described to the RCS. A number of interviewees questioned the Claimant's attitude to complications from major colorectal surgery. But Mr Wetherill stated:
"Universally, all who have had contact with Mr Talib Al-Mishlab found him to be a pleasant, approachable Consultant……Nobody that I interviewed had anything but praise for Mr Talib Al-Mishlab's approachability. I have not found any evidence to suggest that his conduct in general is anything but professional."
The report nonetheless reflected concerns, expressed by some interviewees, that the Claimant was reluctant to take advice, and slow to admit that he might have made a mistake.
In his 20 January 2011 response to Professor Wetherill's preliminary report, the Claimant denied that many of those who had worked with him found him reluctant to accept that his patients had complications and to take advice about complications. He also denied that there had been delays in investigating patients with complications.
Despite saying in cross examination that he had not seen the evidence supporting the allegations, the Claimant accepted that he had, by that point, seen all of the transcripts of the interviews concluded by Professor Wetherill. He therefore knew what the allegations were.
March 2011: the exclusion
At the invitation of Mr Wetherill, a team of reviewers from the RCS visited the Trust from 2 March — 3 March 2011. Their terms of reference were: (i) to review complication rates for colorectal surgery; and (ii) to review the Claimant's "perceived attitude" towards these complications.
An urgent meeting was called by the RCS reviewers on 3 March 2011. No minutes of the discussion were taken. But Dr Lanzon-Miller, who attended on behalf of the Trust, recalls that they said that the Claimant's practice was "dangerous". The Trust's reaction to this meeting was immediate. The Claimant was prohibited from carrying out all forms of surgery, and was prohibited from entering "all clinical areas" of the Trust. This included his office because it contained "clinical notes and other information".
The RCS team told the Claimant at the end of their review that they had recommended that he should be suspended immediately, and that he should be referred to the GMC. The reason was two concerns: probity and clinical matters. There were two probity concerns: the funding arrangements of a trip to Italy and an allegation that he had vetted information at Grand Rounds. These concerns about probity were later investigated and found to be without foundation. There were four clinical issues: inappropriate case selection, failure to recognise complications, failure to take on board advice, and lack of insight.
Dr Lanzon-Miller telephoned the Claimant on 3 March 2011. In this conversation, the Claimant told Dr Lanzon-Miller that he knew what the 'phone call was about. While the Claimant said that he was shocked, he did not suggest that Dr Lanzon-Miller had any other realistic option than following the RCS's recommendation. In cross examination, the Claimant accepted that that Trust had to proceed on the basis that the allegations in the RCS's review might be true.
In cross examination, the Claimant also accepted that the RCS knew that he had been conducting minor operations before its review. In the light of this, Dr Lanzon-Miller said he had no option other than to exclude immediately under MHPS — it would have been irresponsible to do anything else, as he explained in his oral evidence.
Dr Lanzon-Miller considered alternatives. He addressed the Claimant's access to his own office and...
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