Tarnesby v Kensington and Chelsea and Westminster Area Health Authority (Teaching)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL,LORD JUSTICE BRIGHTMAN,LORD JUSTICE BRANDON |
| Judgment Date | 15 February 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0215-3 |
| Docket Number | 1976 T.2095 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 February 1980 |
[1980] EWCA Civ J0215-3
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Queen's Bench Division
Lord Justice Roskill
Lord Justice Brightman
Lord Justice Brandon
MR G. MURDOCH (FOR MR S. GOLDBLATT, Q. C. and MR B. GREEN) (instructed by Messrs. Le Brasseur & Oakley) appeared on behalf of the Appellant.
MR S. BURNTON (instructed by Messrs. Beachcroft Hyman Isaacs) appeared on behalf of the Respondents.
I shall ask Lord Justice Brightman to give the first judgment, being the judgment that he has prepared and with which I wholly agree, so that it is, therefore, the judgment of both my Lord and myself.
This is an appeal from the judgment of Mr Justice Neill rejecting the appellant's claim to have retained his position of consultant at a hospital despite his suspension from the medical register.
On 18th June 1953 the North-West Metropolitan Regional Hospital Board, now Kensington & Chelsea & Westminster Area Health Authority (Teaching), sent a letter to the appellant Dr. Tarnesby offering him a part-time appoint-ment as psychiatrist at the British Hospital for Functional Nervous Disorders an average with effect from 4th August 1953. The post was expressed as involving, attendance of two half-days a week. The letter contained at the foot of the page form of acceptance which was duly signed by the appellant at the end of July. She post was described throughout that letter and an attached page of general Terms and Conditions as an "appointment".
The remuneration of the appellant and the services to be rendered by him were altered from time to time. By 1965 his hours and place of service had been changed to 14 hours a week at the Padding ton Clinic, Nothing turns on these alterations. Furthermore, the 1949 edition of the detailed Terms and Conditions subject to which the appellant originally took up his post were replaced by an edition dated 1st February 1967 and those are the terms and conditions applicable at the time of the events which fall for consideration on this appeal.
Section 7 of the Medical Act 1956 provides that a person with certain qualifications shall be entitled to be registered under the Act as a fully registered medical practitioner. Section 28 of the Act provides that -(l) Subject to the provisions of this Section, "no person, not being fully registered, shall hold any appointment as "physician, surgeon or other medical officer …, (c) in any hospital "…. (2) Nothing in this section shall prevent any person, not being "a British subject, from being and acting as the resident physician "or medical officer of any hospital established exclusively for the relief of "foreigners in sickness, so long as he "fulfils certain qualifications. Sub-section (2) is not directly relevant, andI only refer to it in order to draw the distinction between "appointment" in sub-section (l) and "being and acting as the resident physician etc." in sub-section (2),
Part 5 of the Act deals with "Erasure and Restoration to Register". Section 32 regulates the constitution of the disciplinary committee cf the General Medical Council. Section 33 (prior to amendment in 1969) provided that if any fully registered person after due enquiry were judged by the disciplinary committee to have been guilty of infamous conduct in any professional respect, the committee might if they thought fit direct his name to be erased from the register. This was subject to the right of the guilty person to apply after the lapse of a certain period for the restoration of his name to the register. Under Section 36 (now substantially amended) a person whose name is so erased may appeal to Her Majesty in Council and in such case the erasure from the register takes effect if and when the appeal is dismissed.
An enquiry was held by the Disciplinary Committee into the circumstances in which the appellant's medical practice came to be noticed in a series of articles in a German managine. As a result on the 24th July 1969, after a four day enquiry, the Disciplinary Committee found the appellant guilty of infamous conduct in a professional respect and directed that his name be erased from the register. The appellant appealed to Her Majesty in Council. Before the conclusion of the appeal, Section 33 of the Medical Act 1956 was amended by Section 13 of the Medical Act 1969. Under the new Act it is provided that: "(l) Where a fully registered person (b) is judged by the Disciplinary Committee to have been,… guilty of serious professional misconduct, the Committee nay, if they think fit, direct that his name shall be erased from the register or that his registration therein shall be suspended (that is to say, shall not have effect) during such period not exceeding 12 months as may be specified in the direction". Prior to that amendment, a penalty of suspension, as distinct from erasure, from the register did not exist, Under Subsection (1B) while a person's registrationis suspended, he is to be treated as not being registered in the register notwithstanding that his name still appears therein.
The opinion of the Judicial Committee of the Privy Council was delivered on 20th July 1970. The Committee advised that the appeal should be dismissed, but that the direction of the Disciplinary Committee should be varied to one of suspension for 12 months. An Order in Council to this effect was made on 28th July 1970. Accordingly, down to that day the appellant remained a fully registered medical practitioner, but on, that day he fell to be treated as not being registered and so continued until the expiration of the 12 month period.
After the decision of the Disciplinary Committee, the appellant was first permitted to take his annual leave, and thereafter was granted unpaid leave. On 11th August 1970 the Regional Hospital Board wrote to the appellant saying: "In view of the fact that you are thus unable to resume your duties as consultant, following the hearing of your appeal, the Board hare no alternative but to regard your contract of service as frustrated and, therefore, at an end."
The appellant's solicitors wrote to the Board to ask that their decision be reconsidered. The Board replied on 2nd September 1970 saying: "There is no question here of my Board having taken a decision to dismiss Dr. Tarnesby from his appointment. He has as a result of his own conduct, been suspended from registration as a result of which by reason of Section 13 (1B) of the Medical Act 1969, he is to be treated as not being a duly registered medical practitioner, just as if his name had been erased from the register. In the circumstances my Board is advised that it has no alternanttive but to regard his contract of employment as ended".
After further correspondence, the Board's solicitors wrote on 20th July 1971: "The Board have decided to reverse their previous decision and to agree to Dr. Tarnesby's re-ins tatement in his former post as part-time consultant psychiatrist at the Paddington Clinic on expiry of the periodof suspension of his registration on 28th July 1971". This response was made in reliance on an amendment to the Terms and Conditions of Hospital Medical and Dental Staff which came into effect in November 1970 and was expressed to allow a practitioner's contract with a Hospital Authority to be suspended during such time as his registration might be suspended. Unfortunately this solution was denied to Dr. Tarnesby at the end of the day, because the Board received further advice that they had no power to re-instate the appellant otherwise than through open competition in accordance with the Appointment of Consultant Regulations.
In these circumstances on 26th July 1976 the appellant commenced proceedings against the Area Health Authority for a declaration that his employment was still continuing. In their re-amended defence the Area Health Authority pleaded that, by virtue of the provisions of Section 28, subsection (l) of the Medical Act 1956, which I have already read, the appellant's contract of service was terminated and frustrated by operation of law; alternatively that it became impossible for the appellant to perform the services contracted for under the agreement for 12 months from 21st July 1970, and the agreement was frustrated on that day.
The matter came to trial before Mr Justice Neill on an agreed statement of facts. The learned Judge accepted the submission of counsel for the Area Health Authority that the appellant's contract, under which he held his position as a doctor at the Hospital, came to an end automatically by the operation of Section 28, subsection (l) of the 1956 Act, The learned Judge also accepted counsel's alternative submission that the contract was frustrated under the general law because the appellant was unable to perform his services at the Hospital for 12 months.
The submission was made to us by the appellant's counsel that where an appointment under a contract can only be held by a fully registered doctor, temporary as distinct from permanent or indefinite suspension of such is registration does not necessarily frustrate the contract, We were taken bycounsel through numerous authorities on the question of frustration, and a number of reasons were advanced why the contract in the instant case should not be regarded as frustrated. So far as Section 28, subsection (l) was concerned, it was submitted that the appointment of the appellant as consultant was merely suspended and not terminated during the period of suspensory illegality. It was admitted that the appellant could not for the time being perform the medical services required of the person holding the appointment and that for the time being he could not demand remuneration for his...
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...is terminated, unless the employer chooses to suspend him or transfers him to a non-care position: c.f. Tarnesby v Kensington and Chelsea and Westminster Area Health Authority [1981] ICR 615. However, the employer is under no statutory obligation to suspend the care worker or to transfer hi......
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