In matters of the heart

18 Oct 2018

The High Court has overturned two decisions by NHS Trusts relating to exclusion and restriction of employment during ongoing Maintaining High Professional Standards investigations. 

Jahangiri v St George’s University Hospitals NHS Foundation Trust [2018] EWHC 2278 (QB)

The facts

Amidst a background involving highly publicised independent reviews into National Institute for Cardiovascular Research (NICOR) confirmed increased mortality rates within a cardiac surgery unit, in connection with which the unit had been warned as to the consequence of “interfering” with the review process, the claimant applied for an injunction to overturn a decision to exclude her pending the resolution of disciplinary allegation of misconduct.

The claimant, a heart surgeon with a stellar reputation being a pioneer of minimally invasive aortic valve surgery (amongst other significant professional accolades), was investigated in relation to allegations concerning her conduct towards a colleague who, after making the allegation, became a potential witness in relation to the background review.

The allegation was investigated and said to give rise to a disciplinary allegation of misconduct which was to be progressed to a disciplinary hearing, although the original complainant was not to be called as a witness. Acting on legal advice, the complainant made contact with the witness via their secretaries with a view to establishing whether she was prepared to engage with the claimant’s solicitor in preparation for the disciplinary hearing. The complainant considered the claimant’s   efforts as intimidation and escalated the concern. The claimant was duly excluded from all trust premises on the basis that she had attempted “to influence a potential witness” to the ongoing review process.

The claimant’s exclusion was confirmed in subsequent correspondence only after which the trust approached the Practitioner Performance Advice Service (PPAS) for advice. The exclusion decision was reviewed after two weeks and maintained for a further four week period, immediately following which the claimant was excluded on separate grounds concerning findings which had been made in connection with the background review.

Al-Obaidi v Frimley Health, NHS Foundation Trust [2018] EWHC 2494 (QB)

The facts

The claimant, a consultant cardiologist with specialist experience in coronary intervention, angioplasty and the implementation of pacemakers and complex cardiac devices, applied for an injunction to overturn his employing trust’s decision to exclude him and to permit him to return to full-time work at one of two hospitals to which he was affiliated. The allegations giving rise to the disciplinary investigation and exclusion decision concerned the claimant’s conduct towards and teamwork with colleagues and the robustness of audit processes which were said by the trust to give rise to patient safety concerns.

The claimant, through his solicitor, made representations against the exclusion decision and instead proposed restrictive conditions which the trust initially welcomed although subsequently rejected. Further submissions on behalf of the claimant prompted the trust to instruct its own lawyers and resulted in what is described within the judgment as a “volte face” on the trust’s part. The claimant was duly permitted to return to some clinical duties at one hospital whilst remaining excluded entirely from the other.

Shortly thereafter, the case investigator’s report was received by the case manager and the trust. Of the nine allegations investigated, five were effectively dismissed. Mr Justice Martin Spencer’s forensic scrutiny of the four remaining findings demonstrated that they were much diluted from the original allegations and were said not to amount to gross misconduct or even, in the judge’s view, misconduct. The judge proceeded on the basis that the claimant was only restricted and not fully excluded from employment in consequence of the earlier developments.

The law

Whilst both applications essentially concerned private law claims for breach of contract, there was no dispute between the parties in either case that the applications fell to be determined by reference to the three-stage test propounded in the well-known public law case of American Cyanamid v Ethicon Ltd (No 1) (1975) AC 396 (see also Mezey v South West London & St Georges Mental Health Trust (2006) EWHC 3473 (QB); (2007) ICLR 237 at (11)), namely:

  1. Is there a serious issue to be tried?

  2. Would damages be an adequate remedy?

  3. Does the balance of convenience favour the grant of an injunction?

In neither case was it seriously suggested on the part of the defendant trust that damages would constitute an adequate remedy, given the impact of the exclusion decisions directly upon each claimant, upon their reputations, and also on third parties. The balance of convenience in both cases essentially turned on the lawfulness of the exclusion decisions and so, strictly, whether in fact each case demonstrated a serious issue to be tried.

Mr Justice Nicklin and Mr Justice Martin Spencer were resounding in their conclusions. Both claimants had demonstrated a serious issue to be tried, namely that failings in the approaches of the defendant trusts to their consideration of the exclusion decisions by reference to their MHPS compliant disciplinary policies amounted to a breach of contract and/ or a breach of the implied term of trust and confidence.

In Jahangiri, Mr Justice Nicklin identified a litany of errors including the trust’s erroneous approach to its consideration of the evidence; its application of the wrong test for exclusion (appropriateness and not necessity); a failure to consider alternatives to exclusion and so the proportionality of the decision, all of which were found to support a conclusion that the decision making was irrational in a public law sense.

Likewise in Al-Obaidi, Mr Justice Martin Spencer criticises the defendant trust for a failure to make rational decisions and for immediately resorting to the “nuclear weapon” in the trust’s armoury in a case in which the decision to exclude was never properly justified. The conclusion that the legal principles apply as much to cases involving restricted employment, whilst somewhat obvious, should prove useful to practitioners in the field and those subject to such arbitrary decision-making.

Learning

Publicity and politics are too often the driving factors behind precipitous decisions to exclude or restrict a practitioner’s employment pending the investigation and resolution of disciplinary issues. Who among those experienced would rule out either issue on the basis of the facts outlined above? Whist not every decision to exclude or restrict will give rise to grounds for a successful legal challenge, the “damage limitation” principle advocates the importance of timely and informed legal advice.

Authored by Simon Connolly, associate in Healthcare.

Our Healthcare Team represents healthcare professionals facing disciplinary proceedings and employment disputes. Should you have any queries in relation to such matters, please contact the team.

 

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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