West London Mental Health NHS Trust v Dr Preeti Chhabra

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Pill,Lord Justice Jackson,Lord Justice Treacy
Judgment Date25 Jan 2013
Neutral Citation[2013] EWCA Civ 11
Docket NumberCase No: A2/2012/1552

[2013] EWCA Civ 11





[2012] EWHC 1735 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Pill

Lord Justice Jackson


Lord Justice Treacy

Case No: A2/2012/1552

West London Mental Health NHS Trust
Dr Preeti Chhabra

Ms Jane McNeill QC and Ms Louise Chudleigh (instructed by Capsticks Solicitors LLP) for the Appellant

Mr Mark Sutton QC and Miss Betsan Criddle (instructed by Messrs Radcliffes Le Brasseur) for the Respondent

Hearing dates : 4 & 5 December 2012

Lord Justice Pill

This is an appeal by West London Mental Health NHS Trust ("the Trust") against a decision of His Honour Judge McMullen QC, sitting as a judge of the High Court, given on 1 June 2012. The judge acceded to the submission of Dr Chhabra that she was entitled to a declaration and injunction the effect of which were to prevent a disciplinary panel appointed by the Trust, her employer, from investigating what are described as "confidentiality concerns" contained in the Trust's letter of 12 August 2011 as matters of gross misconduct and under the terms of its disciplinary policy.

The facts and the complaint


Dr Chhabra was employed by the Trust as a consultant forensic psychiatrist at Broadmoor Hospital from 1 September 2009. It was alleged that when a passenger on a railway train between Sunningdale and Waterloo on 24 November 2010 she breached patient confidentiality. Concerns of a different kind had previously been expressed about Dr Chhabra's work and she was made subject, on 1 October 2011, to an appraisal process.


The complaint about patient confidentiality was made by a civil servant, who was a passenger on the same train, in a letter of 2 December 2010. A decision to exclude Dr Chhabra from her practice was made on 15 December 2010. She returned to work in a supervised capacity in March 2011.


Dr Taylor, an outside consultant forensic psychiatrist, was appointed as case investigator. Dr Taylor produced what is known as a D4A investigation report on 15 June 2011. By letter of 12 August 2011, Dr Broughton, the Trust's Medical Director, who had been appointed by the Trust as case manager, told Dr Chhabra that the allegations of misconduct would be referred to a disciplinary panel. Other capability concerns would be referred to the National Clinical Assessment Service ("NCAS"). In a second report dated 16 November 2011, Dr Taylor rejected one of the allegations of misconduct which had been made.


Dr Chhabra's claim arises out of the decision of the Trust to seek to convene a disciplinary hearing at which Dr Chhabra would face allegations of gross misconduct, which could lead to dismissal. The Trust had wrongly refused, it was submitted, to invoke its Fair Blame procedure to address breaches of patient confidentiality, which were admitted. Further, a conduct hearing should not be held while the NCAS inquiry was ongoing. Any disciplinary hearing should have available to it the fullest possible picture of Dr Chhabra's circumstances and practice. Further, what was proposed, in the letter of 12 August 2011, to be placed before the disciplinary panel went beyond what could properly be alleged on the basis of Dr Taylor's report to the case manager.

The procedure followed


That was and is the outline of Dr Chhabra's case. It is necessary to consider the letter of 12 August 2011 and to consider it in the context of the Trust's disciplinary policies and procedures. The letter was written by Dr Broughton to Dr Chhabra's solicitors:

"I can confirm I have now had an opportunity to consider both Dr Taylor's investigation report and Dr Chhabra's response to that report, including the attachments to your letter of 29 th July. Having done so I am writing to formally advise you of how I intend to progress matters.

It is clear the investigation report highlights serious concerns regarding Dr Chhabra's conduct in relation to a number of serious breaches of confidentiality.

The report also raises concerns regarding capability in relation to the inability to communicate effectively with colleagues and/or patients and ineffective clinical team working skills.

The issues of conduct and capability are unrelated and the conduct allegations are straightforward and discrete. I am therefore proposing to deal with them under the conduct procedure. The capability issues will require the involvement of NCAS and I will write to you separately to confirm how I intend to proceed with them. It is necessary to resolve the conduct issues, one way or another, before moving on to consider how we should address the capability concerns.

The breaches of confidentiality set out in the investigation report and indicated in the terms of reference points 1. and 2. are potentially very serious allegations of misconduct, falling within paragraph 8.4 of Trust policy D4;

8.4 Gross Misconduct

8.4.1 Some instances of misconduct/poor performance will be so serious as to potentially make any relationship and trust between the Trust and the employee impossible. These fall within the category of gross misconduct and would typically include:

Serious breaches of Information Governance with regard to Data Protection, Confidentiality and Information Security;

As a result these allegations will be considered under the Trust's D4 policy and a panel will be arranged as per that procedure. The allegations to be considered are as follows:

1. Dr Chhabra breached patient confidentiality whilst reading notes and discussing patients whilst on public transport, full details of which appear in the investigation report.

2. Dr Chhabra undertook dictation on at least two occasions whilst completing mental health tribunal reports whilst on public transport, details of which appear in the investigation report.

3. Dr Chhabra whilst travelling to work on public transport would often call her secretary to discuss patient related matters breaching confidentiality, details of which appear in the investigation report."

[There followed an allegation, subsequently rejected by Dr Taylor in a second report of 16 November 2011, about alleged removal of documents from Broadmoor.]

"Due the seriousness of the conduct allegations detailed above, I must advise Dr Chhabra that as these matters are being considered as potential gross misconduct the sanction of dismissal is an option for the disciplinary panel.

As per the Trust's disciplinary procedure Dr Chhabra is entitled to bring along a trade union representative or work colleague to that hearing.

I am now in the process in arranging panel members to hear the case. I will be in contact with you shortly to confirm the panel and agree dates with Dr Chhabra for the hearing, which I will set aside a half day for.

I understand this decision will be disappointing for Dr Chhabra and as per previous correspondence should she wish to seek support from our Staff Support Team or Occupational Health, please let me know.

If you have any questions regarding the above please do not hesitate to contact me."


In evidence, Dr Broughton stated:

"I considered that it was necessary to resolve the conduct issues, one way or another given their seriousness, before the capability concerns could be resolved."

A panel has been appointed. It consists of a consultant in the same discipline as Dr Chhabra and two other persons.


There are two sections to Dr Taylor's investigation report of 15 June 2011. The first, to which reference was made in the 12 August letter, dealt with confidentiality and, the second, with a separate complaint about Dr Chhabra's conduct. In her report, Dr Taylor stated, in relation to the first issue:

"4.1 Confidentiality

Ms Jo Leech, Head of Secure Services Policy at the Department of Health, wrote a letter expressing concern regarding breaches of patient confidentiality to, initially, the security department at Broadmoor Hospital, which was then forwarded on to the Medical Director at West London Mental Health. Her letter to the Trust is dated 2 December 2010. She had described having been on a train on the 24 November 2010 and had overhead a conversation by two doctors. One of the doctors was reading a medical report on a patient whose name and details could be clearly identified. It was clear from the conversation between the two doctors that they worked at Broadmoor Hospital.

4.2 In interview and in her original letter Ms Leech described the circumstances of the railway journey. She had been sitting directly opposite two females who were talking and she became aware of the conversation because of the mention of Broadmoor Hospital and Dr Gwen Adshead. Ms Leech had previously worked at the hospital. During the train journey one of the doctors, now identified as Dr Preeti Chhabra, read reports on a patient. She had been holding them on her lap with an A4 pad of paper and had turned pages in a way that Ms Leech could clearly read the name (Mr E). She was also able to see the Section under which he is detained and other details including that this was a CPA report. Ms Leech reported that the train was crowded at the time and Dr Chhabra had this information on her lap for the most of the journey. Dr Preeti Chhabra's travelling companion also had documents but these were held close to her and no information was visible and during the journey she did place them in a bag. Ms Leech was with a colleague on the train journey and neither of them said anything to Dr. Chhabra at the time.

4.3 In addition to Ms Leech's complaint a member of secretarial staff had...

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