Tehrani v Argyll and Clyde Health Board
| Jurisdiction | Scotland |
| Judgment Date | 30 June 1989 |
| Docket Number | No. 40. |
| Date | 30 June 1989 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Lord Weir.
Administrative lawJudicial reviewCompetencyContract of employmentConsultant employed by health boardSummary dismissalWhether decision to dismiss him summarily amenable to judicial reviewRule of Court 260B.1
Administrative lawJudicial reviewContract of employmentSummary dismissalWhether decision to dismiss employee summarily reasonable if decision amenable to judicial reviewTest to be appliedRule of Court 260B.
A consultant surgeon employed by a health board at a hospital was suspended from all duties following upon a complaint arising from the treatment of a patient who had died the previous day. The board proceeded to investigate the allegations which had been made and set up a committee of inquiry. The board subsequently offered to reinstate the consultant subject to certain conditions, but these conditions were unacceptable to him. The committee of inquiry thereafter sat for several days and subsequently produced a report. The board then sat as a disciplinary authority to consider the report of the committee of inquiry and afforded the consultant's representative the opportunity of making a plea in mitigation and thereafter decided to dismiss the consultant summarily from his employment. The consultant sought to challenge the board's decision by way of judicial review. The board argued, inter alia, that as no public law element existed in the consultant's employment with them, the dismissal was not amenable to judicial review. The consultant did not argue that the supervisory jurisdiction of the Court of Session was not restricted to cases with a public law element in them but contended that public law elements could be detected in the case. In particular, the consultant, under the Hospital and Medical Dental Staff ScotlandTerms and Conditions of Service had a right to appeal against his dismissal to the Secretary of State and that, by dismissing him, the board had effectively eliminated this which injected the necessary public element into the situation to make the dismissal susceptible to judicial review. The Lord Ordinary reduced the board's decision. The board reclaimed to the Inner House of the Court of Session.
Held (1) that although in dealing with the petitioner the respondents required to observe the rules of natural justice that consideration was insufficient to
elevate their contract into one within the domain of public administrative law; and (2) that despite the fact that the respondents were a board established by statute, the issue between them and the petitioner regarding his employment was essentially a matter of private law and the correct remedy for the consultant was to sue for damages for wrongful dismissal and not to seek reduction of the board's decision and the petition was accordingly incompetent; and reclaiming motionallowedMalloch v. Aberdeen CorporationSC1971 S.C. (H.L.) 85,distinguished; R. v. East Berkshire Health Authority, ex p. WalshELR [1985] 1 Q.B. 152, followed.
Opinion (1) that the Lord Ordinary had applied the wrong test as to whether summary dismissal was justifiable, the true test being whether a reasonable hospital board could reasonably have concluded that the petitioner was in material breach of his contract so that they would be entitled to dismiss him summarily; (2) that having regard to what the committee of inquiry had held the board had clearly been entitled to regard the petitioner as being in material breach of his contract so as to entitle them to dismiss him summarily; (3) that the petitioner's contract of employment expressly recognised the right of the respondents to terminate his employment without notice provided that his conduct had been such as would have entitled them to dismiss him summarily at common law; and (4) that if he was aggrieved by the decision of the respondents the petitioner could pursue any remedies which were open to him in private law.
Dicta of Lord Dunpark in Blyth v. Scottish Liberal ClubSC1982 S.C. 140 at p. 149, approved.
Observations on the scope of judicial review in public and private law.
Manouchehr Tehrani presented a petition to the Outer House of the Court of Session for judicial review of a decision of Argyll and Clyde Health Board, made on 11th January 1989, to dismiss him summarily.
The following narrative is taken from the opinion of the Lord Justice-Clerk (Ross) in the Inner House: "In this petition for judicial review the petitioner seeks reduction of a decision of the respondents dismissing him from his employment with them. The petitioner was appointed a consultant surgeon by the respondents in 1976. Latterly he worked at Inverclyde Royal Hospital. Although there was a history of poor relations between the petitioner and his surgical consultant colleagues, what precipitated events leading to his dismissal was the treatment of a Mrs Clarke in Inverclyde Royal Hospital in January 1988. The Lord Ordinary has summarised the matter as follows: Matters were precipitated as a consequence of the death of a Mrs Clarke in Inverclyde Royal Hospital on 14th January 1988. After admission on the previous evening she was examined by the surgical registrar, Mr Wishart, when she was provisionally diagnosed as suffering from mesenteric ischaemia (a condition of the bowel caused by shortage of the blood supply) and also from an abdominal aortic aneurysm (an expansion of the aorta in the region of the bowel, which condition is dangerous to life if the aorta is leaking). The registrar telephoned the petitioner who was the consultant surgeon on call that night to acquaint him of the situation and to seek advice. It was the petitioner's practice in such situations to transfer a patient to the vascular unit at Glasgow Royal Infirmary as an alternative to calling in a colleague. Mr Morrice was one of the petitioner's consultant colleagues who had a particular interest in the practice of vascular surgery. The petitioner instructed Mr Wishart to contact the Royal Infirmary in Glasgow. The consultant there, Mr Gilmour, said that a clinical assessment should be made at Greenock first of all to see if the patient's bowel condition was irremediable. If it was, there was no point in transferring her to Glasgow, but if the aneurysm was in fact found to be leaking she would be accepted there. The registrar interpreted this message as meaning that only if the aneurysm was found to be the primary problem was she to be sent to Glasgow. The registrar relayed this message to the petitioner who instructed him to carry out a laparotomy to see what was the nature of Mrs Clarke's problem. The petitioner did not come to Inverclyde Royal Hospital that night to see for himself. The registrar duly operated and discovered a ruptured aortic aneurysm but no significant mesenteric ischaemia. On being telephoned again the petitioner's reaction on receipt of this news was to instruct that the patient should be "closed up" and returned to the ward. Mr Wishart assumed that this meant that nothing more was to be done for the patient. However the petitioner telephoned three-quarters of an hour later to inquire about the situation and then told the registrar to telephone the Royal Infirmary with a view to her being admitted there. The registrar telephoned Mr Gilmour who then after some thought telephoned Mr Morrice, the petitioner's colleague, who came in and carried out a further operation designed to repair the ruptured aortic aneurysm. The repair was effected but Mrs Clarke's condition deteriorated and she died in the course of that forenoon. The petitioner was not informed that this operation had been carried out in Greenock but assumed that Mrs Clarke had been transferred to Glasgow. On 15th January 1988 the petitioner was suspended from all duties at the hospital following upon a complaint arising from the treatment of Mrs Clarke. The respondents proceeded to investigate the allegations which had been made and in due course set up a committee of inquiry. The petitioner remained suspended from duties. A fatal accident inquiry was held by the sheriff at Greenock on 4th, 5th and 6th May 1988. On 13th May 1988 the respondents offered to reinstate the petitioner subject to certain conditions, but these conditions were not acceptable to him. The committee of inquiry sat for several days during September 1988 and reported on 6th December 1988. On 11th January 1989 the respondents sitting as the disciplinary authority considered the report of the committee of inquiry and heard the petitioner's counsel in mitigation. They then decided to dismiss the petitioner summarily from his employment with the board with effect from 5 p.m. that day. It is in order to challenge that decision by way of judicial review that the present petition has been brought."
The National Health Service Hospital Medical and Dental Staff ScotlandTerms and Conditions of Service, governing the petitioner's employment, provide: "190. Where a consultant, SHMO, SHDO, AS or hospital practitioner considers that his appointment is being unfairly terminated, he shall be entitled to send a full statement of the facts to the Secretary of State who will obtain the written views of the authority concerned and place the case before a professional committee (consisting of representatives of the Secretary of State and representatives of the profession, under the chairmanship of the Chief Medical Officer, or, if he is unable to act, a Deputy Chief Medical Officer) for their advice. The committee shall have discretion to interview both parties if they think fit. In the light of their advice the Secretary of State may confirm the termination of services, or direct that the practitioner's employment should continue, or arrange some third solution agreeable to the parties concerned, such as re-employment in a different post. This procedure shall be completed before the authority's decision to terminate the appointment is carried...
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