West London Mental Health NHS Trust v Chhabra
| Jurisdiction | England & Wales |
| Judge | Lord Hughes,Lord Kerr,Lady Hale,Lord Hodge,Lord Reed |
| Judgment Date | 18 December 2013 |
| Neutral Citation | [2013] UKSC 80 |
| Date | 18 December 2013 |
| Court | Supreme Court |
[2013] UKSC 80
THE SUPREME COURT
Michaelmas Term
On appeal from: [2013] EWCA Civ 11
Lady Hale, Deputy President
Lord Kerr
Lord Reed
Lord Hughes
Lord Hodge
Appellant
Mark Sutton QC Betsan Criddle
(Instructed by RadcliffesLeBrasseur)
Respondent
Jane McNeill QC Louise Chudleigh
(Instructed by Capsticks Solicitors)
Heard on 29 October 2013
Lord Hodge, (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Hughes agree)
This appeal is concerned with the operation of the disciplinary procedures for doctors and dentists in the National Health Service, which the Secretary of State for Health introduced over eight years ago. It raises an important question about the roles of the case investigator and the case manager when handling concerns about a doctor's performance.
In December 2003 the Secretary of State for Health exercised his powers under section 17 of the National Health Service Act 1977 to give directions called the Restriction of Practice and Exclusion from Work Directions 2003. These required all NHS bodies to comply with a document which set out new procedures for the initial handling of concerns about doctors and dentists in the NHS (Health Service Circular 2003/12). Those procedures became parts I and II of the framework for disciplinary procedures for doctors and dentists in the NHS which was agreed by the Department of Health, the British Medical Association and the British Dental Association and was issued in February 2005. By the Directions on Disciplinary Procedures 2005 the Secretary of State directed all NHS bodies in England and Wales to implement the full version of the framework contained in a document called "Maintaining High Professional Standards in the Modern NHS" ("MHPS").
The principal relevant innovations in MHPS were:
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(1) An employing trust took on responsibility for disciplining doctors and dentists whom it employed;
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(2) Doctors and dentists were made subject to the same locally-based misconduct procedures as other staff members;
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(3) The same disciplinary procedures applied to all doctors and dentists employed in the NHS;
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(4) The new disciplinary procedure replaced the disciplinary procedures contained in circular HC(90)9, which I discuss in paras 16 and 17 below; and
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(5) There was a single process for dealing with concerns about the professional capability of a doctor or dentist, which tied in with the work of the National Clinical Assessment Authority ("NCAA"). This involved the preparation of an action plan to address the concerns about capability. But if that plan had no realistic chance of success, there would be a capability hearing before a panel.
MHPS recognised the importance of doctors and dentists keeping their skills and knowledge up to date. It expressed a preference for tackling concerns about the performance of a doctor or dentist by training and other remedial action rather than solely through disciplinary action. But it did not seek to weaken accountability or avoid disciplinary action where there was genuinely serious misconduct. It recognised that, where serious concerns were raised, the paramount duty was to protect patients.
MHPS provided that where concerns arose about a practitioner's performance, the medical director was to liaise with the head of human resources to decide the appropriate course of action. This involved the identification of the nature of the problem or concern and consideration whether it could be resolved without resort to formal disciplinary procedures. Where the concerns related to clinical directors or consultants, the medical director was to be the case manager and was responsible for appointing a case investigator.
It was the task of the case investigator to investigate the allegations or concerns and report within four weeks. Paragraph 12 of Part I of MHPS stated:
"The case investigator is responsible for leading the investigation into any allegations or concerns about a practitioner, establishing the facts and reporting the findings."
It was the responsibility of the case investigator to decide what information needed to be gathered and how it should be gathered. It was envisaged that this could involve both written statements and oral evidence. The practitioners who were the subject of investigations were entitled to see a list of the people whom the case investigator would interview. The practitioners were to be given an opportunity to put their view of events to the case investigator and were to have the opportunity to be accompanied when they did so. The case investigator's report was to give the case manager sufficient information to enable him or her to decide whether, among other things: (i) there was a case of misconduct which should be considered by a disciplinary panel; (ii) there were concerns about performance that should be explored by the NCAA; (iii) there was a need to consider restrictions on the practice of the practitioner or his or her exclusion from work; and (iv) there were intractable problems about performance which should be put before a capability panel.
Part III of MHPS provided guidance on conduct hearings and disciplinary procedures. Every NHS employer was to have a code of conduct or staff rules which set out acceptable standards of behaviour. Breaches of those rules were to be treated as misconduct. Issues of misconduct were to be dealt with by the employing NHS body under its own conduct procedures. Employers were advised to seek the advice of the NCAA particularly in cases of professional misconduct.
In 2005 the NCAA changed its name to the National Clinical Assessment Service ("NCAS") when it became part of the National Patient Safety Agency. It is now an operating division of the NHS Litigation Authority.
In March 2007 the West London Mental Health NHS Trust ("the Trust") implemented the Secretary of State's directions by introducing a policy for handling concerns about a doctor's performance (policy D4A) and by amending the disciplinary policy (D4) which it introduced in July 2001. The latter policy set out guidance on the conduct of staff in its staff charter (appendix 3 of policy D4). That guidance included as a value "Preserve Confidentiality" and stated as example behaviour the following:
"Uphold the Trust's policies on freedom of and disclosure of information. Do not abuse knowledge. Use appropriate private locations for discussions of a personal nature and use e-mail correspondence cautiously."
The disciplinary policy (D4), as amended, applied to all of the Trust's employees. It stated, at para 3.1:
"It is a fundamental principle of all disciplinary action that employers and managers must act in a way which an objective observer would consider reasonable…"
It provided that the member of staff had to be told in writing of the complaint in advance of any disciplinary hearing (para 3.6) and stated that no formal hearing should be convened until there was sufficient evidence to suggest that there was potentially a case to answer (para 3.8). In para 13 it identified misconduct which might result in disciplinary action under three categories: minor, serious and gross. Serious misconduct was defined as "misconduct … which is not so severe as to warrant dismissal but is too serious to be considered as minor". In para 13.4.1 it described gross misconduct in the following terms:
"Some instances of misconduct/poor performance will be so serious as to potentially make any further relationship and trust between the Trust and the employee impossible."
It listed typical examples of such conduct. In January 2011, after the events which gave rise to disciplinary proceedings in this case, the Trust amended that list with effect from 28 March 2011 to include:
"serious breaches of information governance with regard to data protection, confidentiality and information security".
The policy also set out in section 15 and appendix 5 a "fair blame" procedure which could apply "when the potential conduct or performance issues …do not constitute serious or gross misconduct".
Appendix 6 set out guidance for managers for investigations under the disciplinary policy. In para 1.1 it stated
"Before disciplinary action is taken, it is essential to establish the facts through an investigation."
In para 2, it answered the question "Why is the investigation important?" thus:
"2.1 to establish as far as practicable what has happened and why.
2.2 to ensure future decisions are rational and made on the basis of evidence.
2.3 to meet the requirement to demonstrate that natural justice has been observed.
2.4 to form the basis of any case presented to a Disciplinary Panel.
2.5 to ensure decisions made by the trust are capable of scrutiny either through an internal appeal or by an Employment Tribunal or court of law."
The appendix advised the manager carrying out the investigation on how to conduct and record interviews and on the preparation and content of the investigatory report. Para 5 stated that the investigatory officer would be required to present findings to a formal hearing "if there is a prima facie case of misconduct and their report would form the basis of their verbal presentation". In para 9 the guidance stated that the report should contain conclusions, including whether there was a disciplinary case to answer at a formal hearing. It stated that the conclusion might suggest
"whether the misconduct (if proven) could constitute serious or gross misconduct, or whether the Fair Blame procedure should apply".
The report was to have appendices including records of witness interviews and statements (para 10). Para 11 instructed the investigatory officer to ensure that key witnesses were available for the hearing before the disciplinary panel...
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