Hameed v Central Manchester University Hospitals NHS Foundation Trust  EWHC 2009 (QB)
Judgment in claim for breach of contract where the claimant had been dismissed but was seeking a declaration that, among other things, the Trust's decision was void and her exclusion from work prior to dismissal was unlawful. The claim was rejected.
The claimant was a doctor working in ophthalmology. In June 2008, when operating in a different theatre because of recent fire, it was alleged that she had instructed nurses to clean and reuse surgical scissors as no new sets of sterilised scissors were available. Two days later, this came to the notice of the Trust, who recalled five patients for blood tests and it was also alleged that the claimant attempted to pressure the nurses operating with her to change their stories. The claimant was excluded from work immediately pending further investigation. She was eventually dismissed in October that year.
In these proceedings the claimant made various submissions about the Trust's handling of the exclusion and the fairness of the disciplinary proceedings, in particular whether they met the requirements of the Maintaining High Professional Standards in the Modern NHS" [MPHS] framework, the claimant submitting that the terms were expressly incorporated in her contract. Counsel for the claimant also argued that Article 6 of the ECHR applied to the claimant's disciplinary hearing. In this judgment, Swift J provides a thorough recap of the events surrounding the dismissal, at paras 58-80, reviews the authorities relating to the implied trust and confidence in employment contracts and at paras 81-89, considers the Article 6 issue. She then goes on to reject all the claimant's submissions but grants permission to appeal on the issue of whether Article 6 applies to disciplinary hearings to practitioners employed in the NHS.
Case No: 9MA90755
Neutral Citation Number:  EWHC 2009 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY.
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. MRS JUSTICE SWIFT DBE
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Dr Waheeda Hameed (Claimant)
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Central Manchester University Hospitals NHS Foundation Trust (Defendant)
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Mr David Berkley QC & Mr Ghazan Mahmood (instructed by Linder Myers LLP) for the Claimant
Mr Andrew Hillier QC (instructed by Hempsons Solicitors) for the Defendant
Hearing dates: 9-15 June 2010
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The Hon. Mrs Justice Swift DBE :
- On 15 October 2008, the defendant (the Trust) dismissed the claimant, a staff grade ophthalmologist at the Manchester Royal Eye Hospital (the MREH), for gross misconduct following an investigation and a disciplinary hearing. Prior to the disciplinary hearing, she had been excluded from work (i.e. suspended) for a period totalling 17 weeks. In this action, the claimant seeks a declaration that the purported dismissal was in breach of her contract of employment, void and of no legal effect, that she continues to be an employee of the Trust; that the investigation and subsequent disciplinary hearing were unlawful and their outcome a nullity; and that the Trust's decision to exclude the claimant from work pending the disciplinary hearing was unlawful. She seeks an order that the Trust must follow and abide by the disciplinary procedure specified in her contract of employment. She also claims damages for breach of contract and interest.
- The Trust denies breach of contract and contends that the exclusion, investigation and disciplinary processes were conducted lawfully and that the dismissal was effective.
- I heard evidence and argument in the case over five days between 9 and 15 June 2010.
- The claimant qualified as a doctor in Pakistan in 1985. Between 1992 and 2004, she worked in various hospitals in the UK, initially as a senior house officer and subsequently as a staff grade ophthalmologist in Rotherham. Her employment at the MREH began in August 2004. She was appointed as a locum at first and subsequently her appointment was made full-time. During the period of her employment with the Trust, no complaints or concerns had been raised about her practice.
- The claimant worked under the immediate supervision of Mr Saghir Sadiq, a consultant ophthalmologist specialising in cataract and eyelid surgery. In a witness statement made for these proceedings, he described how the claimant had been allocated to assist him in his weekly operating list and had rapidly progressed to performing minor surgery unsupervised. He also permitted her to teach certain minor surgical procedures to registrars. She would also conduct clinics. He described her as "a safe and responsible clinician" whose practice was "meticulous and risk free". Evidence was also provided for these proceedings by Mr Nicholas Jones, another consultant ophthalmologist at the MREH, with whom the claimant worked regularly. He described her as "a thoroughly professional, hard working, very diligent, thorough and careful doctor". There was also a statement from Mr Abdul Zaidi, a retired consultant who had been responsible for training the claimant in ophthalmic surgery in Rotherham and who had worked with her there from 1997 to 2004. He too spoke very highly of her.
- The events which led to disciplinary proceedings being brought against the claimant took place on 11 June 2008.
The events of 11 June
- On the afternoon of Wednesday, 11 June, the claimant carried out a list of eight minor operations involving the removing of cysts from eyelids. She was working with a staff nurse, Mrs Jane Guppy, and a non-qualified nursing assistant or clinical support worker, Mrs Nicola Whittle.
- The claimant usually carried out minor operations in a theatre at the Manchester Centre for Vision (MCV). On this occasion, however, a fire which had occurred in an operating theatre in another building meant that the MCV theatre was being used for dental surgery. This led to the venue for the claimant's operating list being changed to the Primary Care Clinic (PCC) at the MREH. The PCC was not regularly used for surgery; it was used as an examination room and did not have stores of the equipment needed for surgery readily to hand. Instead, the necessary equipment had to be collected from storerooms and theatres elsewhere in the building.
- The basic instruments for the surgical procedures being carried out by the claimant were contained in special packs known as chalazion packs. For some procedures, however, additional instruments – in particular, surgical scissors and cauteries – were required. Safe surgical practice demands that, in order to avoid the risk of cross-infection, every instrument used in the course of a surgical procedure should be sterile. Once used, the instrument should not be re-used unless and until it has been sterilised again. The system in place for the minor operations list was that Mrs Guppy and Mrs Whittle would collect together the instruments that were required for each individual surgical procedure. The instruments would be tipped from their packs onto a sterile tray or trolley for use by the claimant. After use, those instruments which were not disposable would be put on another tray to be sent for sterilisation.
- It is clear from the evidence of the claimant, Mrs Guppy and Mrs Whittle that there were certain difficulties with the equipment on 11 June. The operating table was not working correctly and had to be replaced before the claimant began her list. Sterile gloves, eye pads and face towels had to be obtained from elsewhere. Despite these difficulties, however, the operating list was completed, apparently without incident.
The events of 13 June
- It was on 13 June that it came to light that a potentially serious incident affecting patient safety may have happened during the claimant's operating list on 11 June. Since the events of 13 June formed the starting point for the exclusion, investigatory and disciplinary processes that followed, it is necessary to examine those events in some detail.
Mrs Whittle describes the events of 11 June
- On the morning of 13 June, the claimant was carrying out another list of minor operations, this time in a theatre at the MCV. She was assisted by a senior staff nurse, Mrs Jane Mottershead, together with Mrs Whittle. At some point, Mrs Mottershead observed Mrs Whittle cleaning a pair of surgical scissors, apparently for re-use. Mrs Mottershead was concerned about this. She asked Mrs Whittle what she was doing. Mrs Whittle's response was to the effect that there were no more packs of sterile scissors available so she was cleaning a pair of scissors for re-use. She said that she was doing what she had been told to do during the claimant's operating list on 11 June. Mrs Mottershead immediately recognised that, if scissors had been cleaned and re-used on 11 June, it gave rise to serious implications for the safety of the patients on whom non-sterile scissors had been used on that occasion.
- It is common ground that there was some discussion between Mrs Mottershead and Mrs Whittle about what had happened on 11 June and that, subsequently, there were also discussions between Mrs Whittle and the claimant and between the claimant and Mrs Mottershead about what should be done. There is, however, considerable dispute about precisely what was said during those discussions, in particular whether or not the claimant appeared to accept Mrs Whittle's account of what had happened on 11 June, whether she tried to persuade Mrs Whittle to tell Mrs Guppy to deny that scissors had been re-used and whether she sought to prevent Mrs Mottershead from reporting the incident. The outcome of the discussions, however, was that Mrs Mottershead decided that she must report (or "escalate") the matter to her line manager, Mrs Mary Grennan, as soon as possible. It is not known precisely what time her report was made but it is likely to have been some time between 12 noon and 12.45 pm on 13 June.
The information given to the Trust on 13 June
- When Mrs Mottershead made her report to Mrs Grennan, the latter was about to go out and asked her instead to approach Mrs Helen Bateman, clinical nurse leader. Mrs Mottershead had a meeting with Mrs Bateman of which there is, so far as I am aware, no written record. Mrs Bateman asked Mrs Mottershead to complete an incident report form and an incident statement form. Meanwhile, Mrs Bateman reported the matter to Mrs Jo Eccles, lead nurse, who, because a medical practitioner was involved, reported the incident to Mr Barry Mills, consultant ophthalmologist, clinical director of the Eye Division at the MREH and the claimant's line manager.
The information given by Mrs Mottershead
- In the incident report form which she completed shortly after her meeting with Mrs Bateman, Mrs Mottershead gave the following account of her conversation with Mrs Whittle about the events of 11 June:
"[Mrs Whittle] said that during the Wednesday's list they had an inadequate supply of scissors so [Mrs Guppy] had been cleaning the 1 pair they had with normal saline and a cotton bud in between patients. [Mrs Whittle] then followed this practice. Neither [Mrs Whittle] nor [the claimant] could recall which of the 5 patients these scissors had been used on, but both thought the scissors had been used on at least 2 or 3 other patients".
- She went on:
"I informed both [Mrs Whittle] and [the claimant] that under no circumstances was this practice acceptable and informed my line manager… I did not speak to [Mrs Guppy] as she was not on duty until 1pm. …".
- In a written statement timed at 2 pm, Mrs Mottershead related how Mrs Whittle had told her that, on 11 June, Mrs Guppy had cleaned the used surgical scissors between patients. Mrs Whittle said that she had observed Mrs Guppy doing this on two occasions, after which Mrs Guppy had asked her (Mrs Whittle) to do the same. Mrs Whittle had then cleaned the scissors on at least one further occasion, possibly two.
- Mrs Mottershead stated that the claimant was present when Mrs Whittle was telling her what had happened on 11 June and made no comment. Mrs Mottershead said that she had told Mrs Whittle and the claimant that she was going to speak to Mrs Guppy about what she had been told and would be filling in an incident report form and reporting the matter to her line manager.
- Mrs Mottershead went on to say that she could not speak to Mrs Guppy immediately because she was not due to come on duty until 1 pm. She said that, in the meantime, the claimant had asked her if she was still going to report the matter. Mrs Mottershead confirmed that she was. Shortly afterwards, Mrs Whittle told Mrs Mottershead that the claimant had asked her to go and see Mrs Guppy when she arrived, to inform her of the situation and to tell Mrs Guppy to say, if asked, that there had been sufficient sterile surgical scissors on 11 June and that no scissors had been cleaned. Mrs Mottershead said that, having heard that, she instructed Mrs Whittle not to speak to Mrs Guppy and immediately made her report to Mrs Grennan.
- Before making her statement, Mrs Mottershead had examined the theatre log book for 11 June and ascertained the identities of the patients who might have been affected. She said that both Mrs Whittle and the claimant had been certain that no scissors had been used on the last patient on the list. That left five potential patients on whom non-sterile scissors might have been used.
The information given by Mrs Whittle
- Mrs Whittle made an incident statement timed at 1.15 pm. She said that the PCC did not have a supply of sterile surgical scissors. She described how a pair of scissors had been "borrowed" from an operating theatre, but it had not been possible to obtain further pairs since the theatre was being used for dental surgery. She explained that the nursing staff would not know in advance whether scissors would be required for an individual patient; the claimant would request them as and when they were needed. She said that, after the one available pair of sterile scissors had been used, the claimant needed scissors again. When that happened, Mrs Whittle informed Mrs Guppy that there were no more packs of sterile scissors available. She then saw Mrs Guppy clean the scissors which had already been used. That had happened on two occasions. Mrs Guppy then asked Mrs Whittle to clean the scissors in the same way. She did so.
- Mrs Whittle related how, on 13 June, the claimant had asked for a pair of scissors during a surgical procedure. Mrs Whittle had told the claimant and Mrs Mottershead that no fresh packs of scissors were available and had asked if she should clean a pair that had already been used, as she had been instructed to do on 11 June. She had then described to Mrs Mottershead what had occurred on that day, whereupon Mrs Mottershead had said that she was going to report the matter to her line manager. Mrs Whittle observed that, when she had told Mrs Mottershead about the re-use of scissors on 11 June, the claimant did not seem surprised.
- Mrs Whittle said that she had informed the claimant of Mrs Mottershead's intention to report the incident. The claimant had remarked that Mrs Guppy could get into "a lot of trouble". She asked Mrs Whittle to speak to Mrs Guppy before anyone else did and to explain the situation. Her statement continued:
"[The claimant] wanted me to say to [Mrs Guppy], if anyone asks you, say we had enough supply of sterile scissors for the cyst list".
- Mrs Whittle went on to say that Mrs Mottershead had gone to make her report, after which Mrs Mottershead and Mrs Bateman had come to the MCV theatre where Mrs Whittle was working. Mrs Bateman told her to collect an incident statement form from her office and to complete it.
The information given by Mrs Guppy
- Mrs Bateman conducted an informal interview with Mrs Guppy on the afternoon of 13 June. Mrs Margaret Gilligan, senior sister, was present at the interview and took notes. I was not told what time the interview took place but it seems likely that it was shortly after Mrs Guppy came on duty at 1 pm.
- Mrs Guppy told Mrs Bateman that, on 11 June, the list had started with only one pair of sterile scissors available. They were used on a patient. Scissors were then required for use on another patient. Mrs Guppy told the claimant that the only available scissors had already been used. She said that she had offered to clean a pair of her own scissors for the claimant to use. However, the claimant said that they were not sharp enough and instead instructed Mrs Guppy to clean the pair that had previously been used. Mrs Guppy had therefore cleaned the scissors and they were then used by the claimant. Afterwards, Mrs Whittle had also cleaned the scissors for re-use. Mrs Guppy told Mrs Bateman that cleaned scissors were used on two or more patients. She said that she had told the claimant that she thought the practice was unsafe. She described the claimant as a "strong character", suggesting that she had felt she had no choice but to follow the claimant's instructions despite her own concerns.
The claimant's first meeting with Mr Mills
- After her discussions with Mrs Whittle and Mrs Mottershead, the claimant went to a departmental meeting which started at 1 pm. After that meeting, she encountered Mr Mills who asked to speak to her. Although there is some dispute about precisely what was said during their conversation, it is agreed that he referred to the events of 11 June and the possibility that the claimant might have used non-sterile scissors when carrying out surgical procedures. He also told her that it had been suggested that she had told nurses not to report the incident. The claimant denied any knowledge that non-sterile scissors had been used.
The incident in the PCC
- In her incident statement, Mrs Mottershead described how, as she was sitting in the PCC writing it, the claimant telephoned her to ask where she was. The claimant had then come to the PCC to see her. Mrs Whittle was also in the PCC, writing her incident statement. The claimant appeared upset and agitated. She asked Mrs Mottershead who had told Mr Mills that it was she (i.e. the claimant) who had authorised the cleaning of the scissors. Mrs Mottershead had replied that she did not know who had made the decision to clean the scissors. Mrs Mottershead said that, at that point, Mrs Bateman arrived in the PCC and asked to speak to her. The two of them went outside, leaving Mrs Whittle and the claimant together.
- Mrs Mottershead said that, when she returned, the claimant was still there and "kept repeating over and over again and insisting" that Mrs Whittle and Mrs Mottershead should say, if asked, that the claimant had been unaware that scissors were being cleaned. She said that, at that point, Mr Mills came into the PCC. He told the claimant that her presence there was "unacceptable" and took her away.
- Mrs Whittle described how she had been writing her statement in the PCC when the claimant telephoned Mrs Mottershead to ask where she was. The claimant then appeared in the PCC. She seemed very upset and "was asking over and over again who had blamed her for scissors being used for more than one patient". Mrs Whittle said that the claimant kept saying that she had not been aware that non-sterile scissors were being used. She said that the claimant:
"was insisting that if anyone asks [the claimant] did not know about the scissors being used in between patients being unsterilized".
She described how Mr Mills had arrived and said that it was "unacceptable" for the claimant to be in the PCC, whereupon Mr Mills and the claimant had left.
The claimant's evidence about the events of 13 June
- The claimant gave evidence about the events of 13 June both orally and in her witness statement for these proceedings. She said that, whilst she was carrying out a procedure on a patient, she had overheard Mrs Whittle telling Mrs Mottershead that she was "washing the scissors" as she had been instructed to do by Mrs Guppy on 11 June. The claimant said that Mrs Mottershead was "quite unhappy" with this and told Mrs Whittle to get some fresh packs of sterile scissors from a drawer.
- The claimant said that, when she had finished dealing with the patient, she spoke to Mrs Whittle who told her that, on 11 June, she had been asked by Mrs Guppy to wash a pair of scissors for re-use. The claimant was adamant that, during this conversation, Mrs Whittle had specifically asked her whether she had used the scissors on the last patient on the operating list of 11 June. The claimant said that she understood from this question that Mrs Whittle was saying that it was only the last patient on whom there was any question that non-sterile scissors might have been used. Since her clear recollection was that she had not used any scissors for the procedure on the last patient, she did not think there could be any risk to patient safety arising from the possible use of non-sterile scissors. She said that, in any event, she considered it unthinkable that Mrs Guppy would have acted as it was being suggested she had. She told me that she thought that Mrs Whittle might have misunderstood the position and that Mrs Guppy might in fact have asked her to clean scissors before they were sent for sterilisation, rather than for re-use. She carried on with her operating list.
- The claimant's evidence was that she had finished the list and was completing the necessary paperwork when Mrs Whittle, who appeared distressed, approached her and told her that Mrs Mottershead was going to report the incident of 11 June and that she (i.e. Mrs Whittle) was afraid that Mrs Guppy would get into trouble as a result. The claimant asked Mrs Whittle where Mrs Guppy was, intending to go and find out from Mrs Guppy what had happened. Mrs Whittle replied that Mrs Guppy would not be starting work until 1 pm. The claimant said that she had to go to a meeting at 1 pm so she asked Mrs Whittle to speak to Mrs Guppy when she arrived and find out exactly what had happened on 11 June. In her witness statement, she said that she had asked Mrs Whittle to inform Mrs Guppy of "the severity of the situation".
- In cross-examination, the claimant was asked why she had not at any stage sought to clarify with Mrs Whittle precisely what had occurred. The claimant's response was that Mrs Whittle was very junior and she considered that Mrs Guppy's account was likely to be more reliable.
- The claimant said that she expected her meeting to finish at about 1.45pm. Afterwards, she was to conduct a clinic at which Mrs Whittle would be assisting her. She said that she planned to find out from her what Mrs Guppy had said. In her witness statement, she said:
"If the matter had remained unclear, I would have spoken to [Mrs Guppy] myself. I was fairly certain that [Mrs Guppy] would have cleared the confusion. If however I remained in doubt even after I had spoken with both nurses I would have taken formal steps by completing an incident report and reporting the matter to my clinical director Mr Mills. I was keen not to act prematurely or question the professionalism of a trained nurse without first ascertaining the facts. An inaccurate allegation would have ruined her reputation and got her into a lot of unnecessary difficulty. At this stage I was sure that [Mrs Whittle] must have misunderstood any plausible instructions given to her by [Mrs Guppy] and that [Mrs Guppy] must have meant that [Mrs Whittle] should clean instruments before they are sent for sterilisation".
- Before attending the meeting, the claimant also spoke to Mrs Mottershead. In her witness statement, she described how she had suggested to Mrs Mottershead that it might be helpful, before making a formal complaint, to verify the facts with Mrs Guppy since the consequences of any accusations could be very serious. In oral evidence, she said that the decision that Mrs Mottershead should speak to Mrs Guppy before making a report was made jointly by Mrs Mottershead and herself. She denied that she had sought in any way to dissuade Mrs Mottershead from reporting the matter.
- When asked why she had asked Mrs Whittle to speak to Mrs Guppy, the claimant suggested that this had been a preliminary step only. She had expected Mrs Mottershead to report back to her or to someone in authority what Mrs Guppy had said. She suggested, however, that she had regarded it as "very important" for Mrs Whittle to be involved in the process. At one stage in her oral evidence, she appeared to be suggesting that she had envisaged that Mrs Whittle and Mrs Mottershead would go together to see Mrs Guppy. However, she did not persist in that suggestion and indeed accepted that she had not told Mrs Mottershead that she had asked Mrs Whittle to speak to Mrs Guppy.
- In oral evidence, the claimant was adamant that, whatever Mrs Guppy had said about the events of 11 June, she would still have reported the incident to her line manager. This was because of her concerns about the potential risk to patient safety. However, in her witness statement, she had said that she would have reported the matter if she had "remained in doubt" after hearing Mrs Guppy's account. She was unable to explain what she had meant by that. At one point in her oral evidence, she suggested that, if she had been assured by Mrs Guppy and Mrs Whittle that the scissors had been cleaned before "going along the sterilisation route", she would not have reported the matter. However, her final position was that she would definitely have reported the matter to Mr Mills whatever had been said. Indeed, she said that she had hoped to see him at the 1 pm meeting and to have had an opportunity to mention the matter to him.
- In the event, the claimant was approached by Mr Mills as she came out of the meeting. He said that he had something urgent to discuss with her. In her witness statement, the claimant said that he then proceeded to ask her if she had used non-sterile scissors on patients during her operating list on 11 June. She said that she did not think that she had done so. The claimant said that Mr Mills told her that "the lead nurse" (Mrs Eccles) had informed him that it was being alleged that, on 11 June, the claimant had instructed the nurses that washing scissors between patients was acceptable. She said that he also told her that it was being alleged that, on the morning of 13 June, she had instructed some nurses not to report the matter. The claimant said that she was "absolutely shocked" at the allegation that she had sanctioned the use of non-sterile scissors since neither Mrs Mottershead nor Mrs Whittle had suggested to her that she had known about their use. She denied that she had done so. The claimant said that Mr Mills appeared satisfied with her denials. She was reassured that he believed that she had not done what was alleged and that he had "full faith" in her.
- The claimant said that, nevertheless, the talk with Mr Mills had left her "rattled" and "upset". She "could not resist the urge" to clarify matters with Mrs Mottershead and Mrs Whittle. She looked for Mrs Whittle but could not find her. She telephoned Mrs Mottershead, who informed her that she was working in the PCC. She asked if she could go and see her. Mrs Mottershead agreed. She therefore left the clinic which she was supposed to be conducting and rushed to the PCC.
- The claimant's evidence was that, immediately after her arrival, Mrs Mottershead was called out of the room by Mrs Bateman. There was no conversation before she left. When Mrs Mottershead returned, the claimant told her and Mrs Whittle about her conversation with Mr Mills and about the allegations that had been made. She asked Mrs Whittle whether she (i.e. the claimant) had instructed her to clean the scissors on 11 June, to which Mrs Whittle replied "No". She said that she then asked Mrs Mottershead if she had heard what Mrs Whittle said, to which Mrs Mottershead replied that she had.
- The claimant said that she had been speaking to Mrs Mottershead and Mrs Whittle for only about 30 seconds when Mr Mills walked into the room. He told her that she should not be there as "the situation could be serious". She denied that she had understood that he was saying that it was inappropriate for her to be talking to persons involved in the incident. She claimed in evidence that she thought that he was referring to her absence from the clinic which she should have been conducting. She did not accept that it had been inappropriate for her to speak to Mrs Whittle or Mrs Mottershead. She said that a serious allegation had been made against her and she had to know what was being said. She insisted that she did not know, at the time she spoke to them, that any investigation into the incident was in progress. However, Mr Mills had made it clear after they left the PCC that an investigation was or may be taking place. She then tried to explain to him that she had not been aware of that fact and apologised, before returning to her clinic.
Discussion: the events of 13 June 2008
The information available to the Trust
- By mid-afternoon on 13 June, the Trust management were aware that they were dealing with a critical incident with potentially serious implications for the safety of the patients affected. Steps were taken to inform the Strategic Health Authority (SHA) and the National Patient Safety Agency (NPSA) what had occurred and to arrange for patients who were potentially involved to be screened for HIV and hepatitis B and C. Guidance was sought about the risks of CJD. Preparations were under way to deal with enquiries from the media and concerned members of the public. In the event, happily, none of the patients involved suffered any ill effects as a result of the incident.
- From the information given to the Trust by Mrs Guppy and Mrs Whittle, it was evident that, on 11 June, non-sterile scissors had been used in the course of surgery performed on up to five patients. It was clear also that both Mrs Guppy and Mrs Whittle had been knowingly involved in their cleaning and use. As to whether or not the claimant had known of their use, Mrs Mottershead had said in her incident statement that, when Mrs Whittle told her about the incident in the claimant's presence, the claimant had remained silent (in circumstances where, if she had not had any prior knowledge of what had happened, one would have expected her to express surprise and dismay). Mrs Whittle had observed that the claimant had appeared unsurprised at what she had told Mrs Mottershead. Meanwhile, Mrs Guppy had told Mrs Bateman that the claimant had actually instigated the use of non-sterile scissors.
- The Trust had also been informed of attempts which were alleged to have been made by the claimant to conceal the incident and/or her own part in it. Mrs Whittle had alleged in her incident statement that she had been told by the claimant to tell Mrs Guppy to say that non-sterile scissors had not been used. There was evidence from both Mrs Whittle and Mrs Mottershead that the claimant had sought to persuade them to say that she had been unaware of the fact that non-sterile scissors had been used. The claimant had been observed speaking to Mrs Whittle and Mrs Mottershead by Mrs Bateman and Mr Mills (and, according to evidence she gave to the investigation team, Mrs Eccles) in circumstances which, not surprisingly, they regarded as wholly inappropriate.
- It is quite true, as the claimant has pointed out, that evidence which has subsequently come to light demonstrates that the transmission of Mrs Mottershead's original oral report to Mrs Bateman from person to person resulted in certain inaccuracies being introduced. It is also true that there was an apparent and potentially important inconsistency between the accounts of Mrs Guppy and Mrs Whittle in that Mrs Guppy had said that the claimant had instructed her to clean scissors for re-use whereas Mrs Whittle had not mentioned that the claimant had given any such instruction. However, it is important to focus on the first hand information that was available to the Trust at that early stage when it took the initial decision to exclude the claimant with immediate effect and to initiate an investigation into her conduct and that of Mrs Guppy and Mrs Whittle.
The claimant's evidence about the events of 13 June
- I found the claimant's evidence about the events of 13 June profoundly unsatisfactory in a number of respects. Her witness statement was remarkable for its absence of reference to the implications for patient safety of her possible use of non-sterile scissors. In it, she claimed to have told Mrs Whittle and Mrs Mottershead that the use of non-sterile scissors would be "unacceptable and dangerous" (observations they did not recall), but then immediately dismissed the possibility of its having occurred as "unimaginable". She appeared more concerned about the possible effects of the incident, if reported, on Mrs Guppy than about the risks to patients.
- The claimant's evidence was that, having learned for the first time of the possibility that she might unwittingly have used non-sterile scissors to perform surgical procedures (and thereby compromised patient safety), she did not attempt to discover from Mrs Whittle precisely what had occurred. Yet this was an obvious step to take. If she had done so, she would rapidly have discovered that there was a real risk that as many as five patients had been treated using non-sterile scissors. The claimant's explanation that Mrs Whittle was too junior and unreliable to provide such information was completely inconsistent with her apparent willingness to trust her to question Mrs Guppy about what had happened.
- If, as she said, the claimant asked Mrs Whittle to find out from Mrs Guppy what had occurred, the request was entirely inappropriate. Mrs Whittle was unqualified and was not equipped to question a qualified nurse. Moreover, if Mrs Guppy had knowingly used non-sterile scissors on 13 June, she might well have been very annoyed with Mrs Whittle for having informed Mrs Mottershead what she had done. In addition, there was an obvious risk that Mrs Guppy would deny that anything untoward had happened in order to protect herself from criticism. She might even have sought to persuade Mrs Whittle to do likewise. The claimant's request, if made, could have placed Mrs Whittle in a potentially invidious position.
- If, as the claimant suggested, Mrs Whittle had left her with the clear impression that there was no question of patients having been put at risk - since it was only the last patient (upon whom she knew no scissors had been used) who might have been affected - there would have been no reason for her to take any action at all. Certainly there would have been no reason for her to advise Mrs Whittle to inform Mrs Guppy of "the severity of the situation".
- I cannot accept the claimant's evidence that she intended, whatever Mrs Guppy had said, to report the incident to her line manager. That evidence was at variance with the words used at paragraph 21 of her witness statement ("If, however, I had remained in any doubt …"). It was also inconsistent with her reported conversation with Mrs Mottershead, in which, according to the claimant, she suggested to Mrs Mottershead that "prior to making a formal complaint", Mrs Mottershead should "verify the facts" with Mrs Guppy. The clear inference was that she was suggesting that, if Mrs Guppy had responded in a certain way and had "cleared the confusion", as the claimant was "fairly certain" she would, no report should be made. In other words if Mrs Guppy had denied that anything untoward had occurred, the matter would – if left to the claimant – have gone unreported, despite the fact that, if Mrs Guppy was lying about what had happened, patients would have been at risk.
- I am quite satisfied that the claimant was reluctant for the incident of 11 June to be reported to the Trust management on 13 June and that it was for that reason that she asked Mrs Whittle to speak to Mrs Guppy and suggested that Mrs Mottershead should do so. She no doubt hoped that Mrs Guppy would deny that non-sterile scissors had been used and that Mrs Mottershead would then change her mind about making a report.
- It was clear from the claimant's evidence that, when she was told by Mr Mills of the report that she had used non-sterile scissors, her immediate and only concern was to exculpate herself. There is no mention in her witness statement of any anxiety on her part about the safety of patients who might have been affected. Her response was to rush to the PCC and to seek reassurance that neither Mrs Mottershead nor Mrs Whittle would say that she had been aware of the scissors being cleaned.
- The claimant's evidence was that her conversation with Mrs Mottershead and Mrs Whittle had not been in any way inappropriate because she did not know that any investigation was under way. I did not find that evidence credible. She had just been asked by Mr Mills about what she herself described as a "serious allegation". Her suggestion that she had believed that the matter was at an end (because Mr Mills had appeared satisfied with her denial) was entirely inconsistent with her decision to leave her clinic, try to find Mrs Whittle and then go to speak to Mrs Mottershead about what was being alleged. Although she had not at that stage been informed that a formal investigation was in train (and, indeed, no such investigation was yet under way), she must have been well aware that enquiries would continue and that it was wholly inappropriate for her to discuss the matter with persons involved in those enquiries. It was particularly inappropriate for her to speak to Mrs Whittle, a junior member of staff who had been directly involved in the incident of 11 June.
- I am unable to accept the claimant's evidence that, when Mr Mills arrived and observed that it was "inappropriate" or "unacceptable" for her to be in the PCC with Mrs Mottershead and Mrs Whittle, she did not understand what he meant. Her explanation that she thought that he was referring to her unauthorised absence from her clinic was not plausible. If that had been his concern, he would not have told her (as she said he did) that she should not be in the PCC "as the situation could be serious". I find that she knew precisely what he meant, namely that she should not be talking to persons involved in the enquiries into the incident on 11 June.
- One possible explanation for the claimant's behaviour on 13 June is that she was well aware that non-sterile scissors had been used on 11 June and wished to conceal that fact and her own involvement in the incident. Another possible explanation is that she had not previously been aware of the use of non-sterile scissors but, having heard what Mrs Whittle had to say, she suspected that Mrs Guppy may have cleaned scissors for re-use and was attempting (wholly inappropriately) to protect her. A third possibility is that, having heard that non-sterile scissors might have been used, she panicked and sought to avoid the incident being reported for fear of the consequences if it were found that she had (albeit unwittingly) used non-sterile equipment.
- It is not for me to determine what happened on 11 June and, in particular, whether the claimant was aware that non-sterile scissors were being cleaned and re-used. I have not heard evidence from Mrs Guppy and Mrs Whittle and am not in a position to reach any conclusions about the matter. That being the case, it would not be right for me to express a concluded view as to which of the possible explanations to which I have referred is the correct one. Whatever the explanation, however, I am satisfied that, on 13 June, even on her own account of events, the claimant acted inappropriately and unprofessionally.
- Before going on to describe the events that occurred subsequently, it is necessary to consider the legal issues that arise in this case. The parties were in broad agreement as to those issues. They are:
* Whether, and if so to what extent, the Trust's disciplinary procedures gave rise to express and/or implied terms conferring contractual rights and obligations; * Whether Article 6 of the European Convention on Human Rights (ECHR) was engaged in relation to the Trust's disciplinary proceedings and, if so, whether the Trust's conduct of the disciplinary proceedings was Article 6 compliant; * If the Trust's disciplinary procedures did give rise to contractual rights and obligations, whether the Trust was in breach of any of those obligations; * If so, what was the effect of the breach(es)? * If the Trust was in breach of its contractual obligations and/or if the disciplinary procedures were not Article 6 compliant, what remedies are available to the claimant? In particular, is the claimant entitled to a declaration that her employment with the Trust is continuing?
The contractual position
- The contracts of doctors employed in the National Health Service (NHS) are subject to standard Terms and Conditions of Service published in September 2002. Paragraph 189a of those Terms and Conditions of Service provides:
"…issues relating to a practitioner's conduct, capability or professional competence should be resolved through the employing authority's disciplinary or capability procedures (which will be consistent with the "Maintaining High Professional Standards in the Modern NHS" [MPHS] framework) … ".
- MHPS was published by the Department of Health (DoH) in 2003. Its provisions were the subject of a collective agreement between the DoH, the NHS Federation (representing the employing authorities) and the British Medical Association (BMA) and the British Dental Association (representing practitioners). The procedures set out in the MHPS framework were intended to replace the quasi-judicial disciplinary procedures which had previously applied to hospital practitioners and had been contained in circular HC(90)9.
- Under the HC(90)9 procedures, a medical or dental practitioner had a right to have a case of professional misconduct brought against him/her determined by an independent panel with a legally qualified chairman. Considerable concern had been expressed at the delays resulting from those procedures. In particular, a large number of practitioners were spending protracted periods of time suspended from work on "gardening leave" without resolution of the matters alleged against them, at considerable cost to the NHS. There was a view that the involvement of lawyers in the system was giving rise to delay and over-complication.
- The new procedures were intended to address these problems by providing for disciplinary issues to be resolved internally by employing authorities on a less formal basis than hitherto. From 2005, each individual NHS authority was required to have in place its own disciplinary procedures, modelled on MHPS, and to implement those procedures. Pursuant to that requirement, the defendant Trust produced a document, "Procedure for dealing with Conduct, Capability and Health Issues for Medical and Dental Staff" (the Trust Procedure), which had been agreed between the Trust (as employer) and the Local Negotiating Committee (representing practitioners).
- Although the claimant had no written contract of employment at the time of her dismissal, it was common ground between the parties that her employment was subject to the standard Terms and Conditions of Service, including paragraph 189a. The Trust Procedure constituted the defendant Trust's implementation of MHPS. Thus, the claimant's case was that the provisions of the Trust Procedure were expressly incorporated into the claimant's contract of employment. Mr David Berkley QC, for the claimant, submitted that each and every provision contained in the Trust Procedure was expressly incorporated into her contract.
- Alternatively, Mr Berkley relied on the term of mutual trust and confidence which is to be implied into every contract of employment to the effect that neither the employer nor the employee will, without reasonable and proper cause, conduct themselves in a manner likely to destroy or seriously damage the relationship of trust and confidence between them: see Malik v BCCI  IRLR 462. He submitted that for the Trust to act contrary to its Procedure would amount to a breach of the implied term of trust and confidence. He referred to the case of Bristol City Council v Deadman  IRLR 888 in which, giving the judgment of the court, Moore-Bick LJ found that some of the conditions, policies and procedures referred to in the statement of terms and conditions of Mr Deadman's employment were capable of constituting terms of his contract whereas others were not. However, Moore-Bick LJ observed at paragraph 17:
"… where an employer has published and implemented, with the concurrence of employees' representatives formal procedures providing for the manner in which complaints are to be investigated, it becomes a term of the contract of employment that those procedures be followed".
- On behalf of the Trust, Mr Andrew Hillier QC argued that, whilst some provisions of the Trust Procedure could properly be regarded as creating contractual rights and obligations, not every individual provision had that effect. He relied on the well known case of Alexander v Standard Telephones and Cables Ltd (No:2)  IRLR 286 and the principles of construction enunciated by Hobhouse J at page 291:
"The argument between the parties therefore primarily focused upon the character of the relevant provisions of the respective collective agreements.
… even express words of incorporation do not remove the need to consider whether all the contents of the incorporated document are apt to be terms of the actual contract of employment (National Coal Board v National Union of Mineworkers  IRLR 439).
Therefore, even in a case which involved wide express words of incorporation the court considered it necessary to look at the content and character of the relevant parts of the collective agreement in order to decide whether or not they were incorporated into the individual contracts of employment.
The principles to be applied can therefore be summarised. The relevant contract is that between the individual employee and his employer; it is the contractual intention of those two parties which must be ascertained. In so far as that intention is to be found in a written document, that document must be construed on ordinary, contractual principles. In so far as there is no such document or that document is not complete or conclusive, their contractual intention has to be ascertained by inference from other available material including collective agreements. The fact that another document is not itself contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee. Where a document is expressly incorporated by general words it is still necessary to consider, in conjunction with the words of incorporation, whether any particular part of that document is apt to be a term of the contract; if it is inapt, the correct construction of the contract may be that it is not a term of the contract. Where it is not a case of express corporation, but a matter of inferring the contractual intent, the character of the document and the relevant part of it and whether it is apt to form part of the individual contract is central to the decision whether or not the inference should be drawn".
- Mr Hillier submitted that there were parts of the Trust Procedure which were plainly not apt, and had not been intended, to form part of a practitioner's contract. He submitted that not every individual element of the Trust Procedure necessarily gave rise to a separate and free-standing contractual obligation. He accepted the existence of an implied term of trust and confidence which obliged the Trust to observe the overall requirements of its Procedure by acting consistently with it. In addition, he conceded that there were some provisions of the Trust Procedure which would not of themselves be enforceable contractual obligations but which, if breached, would be relevant to a determination whether there had been a breach of trust and confidence. However, he submitted that some provisions of the Trust Procedure were clearly intended to be purely advisory, directory and/or administrative and gave rise to no contractual obligation.
- I am satisfied that the effect of paragraph 189a of the Terms and Conditions of Service was expressly to incorporate the Trust Procedure into the claimant's contract of employment. I am supported in that view by the decision of the House of Lords in Skidmore v Dartford and Gravesend NHS Trust  UKHL 27 that the procedures set out in HC90(9) (the predecessor procedures to those set out in MHPS and the Trust Procedure) formed part of the employment contracts of almost all NHS doctors.
- However, applying the principles set out in Alexander, I do not consider that each and every provision of the Trust Procedure is apt be treated as an express contractual requirement. There are a small minority of provisions which are too vague and/or discursive to fulfil such a function; for example, parts of paragraph 8.5 appear to me to fall into this category. In the main, however, I am satisfied that the provisions are, and were intended to constitute, legally binding obligations.
- There can be no doubt that, by virtue of the implied term of trust and confidence, the Trust was under a duty to act consistently with its Procedure, at least up to the end of the investigation stage of the disciplinary process. However, the question arises whether any breach of the Trust's contractual obligation in relation to the disciplinary hearing which resulted in the claimant's dismissal is actionable at common law.
- In Johnson v Unisys Ltd  1 AC 518, the claimant was summarily dismissed without being permitted to respond to serious allegations made against him. He had sought and been awarded compensation for unfair dismissal in the employment tribunal. Subsequently, he claimed damages at common law for personal injuries arising from the manner of his dismissal and for his consequent difficulty in obtaining employment. He contended that his employers had breached the implied term of trust and confidence in his contract of employment. The House of Lords decided that a common law right embracing the manner in which an employee is dismissed could not co-exist with the statutory right not to be unfairly dismissed, so that it would be an improper exercise of the judicial function to develop a common law remedy which was contrary to Parliament's intended limitation. Furthermore, it was an express term of Mr Johnson's employment that his employers could terminate his employment on four weeks' notice without giving any reason. An implied term that he could be dismissed only for good cause or after a fair hearing would be inconsistent with that express term.
- The effect of Johnson was that an employee was not entitled to claim damages for injured feelings, mental distress and/or damage to reputation arising from his/her dismissal, as opposed to other conduct on the part of his employer. Also the implied term of mutual trust and confidence could not apply to the act of dismissal itself; thus no requirement of fairness could be implied.
- In Eastwood v Magnox Engineering plc; McCabe v Cornwall County Council  1AC 503, the House of Lords sought to delineate the boundary between the area of exclusion of liability for breach of the implied term of trust and confidence imposed by Johnson and conduct preceding the dismissal in respect of which liability for breach of the implied term might arise. McCabe concerned a claim for psychiatric injury following an inappropriate suspension and a subsequent dismissal which was found by the employment tribunal to have been unfair. Lord Nicholls said at page 27:
"Identifying the boundary of the "Johnson exclusion area", as it has been called, is comparatively straightforward. The statutory code provides remedies for infringement of the statutory right not to be dismissed unfairly. An employee's remedy for unfair dismissal, whether actual or constructive, is a remedy provided by statute. If, before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition, in law, such a cause of action exists independently of the dismissal".
- However, Lord Nicholls observed that, since in the majority of cases financial loss would result from the dismissal rather than from the antecedent breach(es), it would often not be recoverable.
- In Edwards v Chesterfield Royal Hospital NHS Foundation Trust  EWCA Civ 571, the appellant, a consultant, was dismissed from his post following disciplinary procedures which, so the appellant contended, did not accord with the appropriate contractual procedures. He commenced proceedings claiming loss of the earnings which he would have received had he not been wrongfully dismissed and had instead remained in the employment of the respondent. The respondent contended that the most the appellant was entitled to receive was the three months' notice to which he was entitled under his contract of employment. It therefore applied for an order that his claim for damages should be struck out insofar as it exceeded that amount. The District Judge granted the respondent's application. On appeal, a High Court Judge allowed the appeal to a limited extent and varied the District Judge's order to permit the appellant to claim loss of earnings for an additional period for which he would have been paid had the appropriate disciplinary procedures been followed and run their course.
- The appellant appealed to the Court of Appeal. Giving the leading judgment, Moore-Bick LJ considered the speeches in Johnson. He reached this conclusion at paragraph 23:
"In my view, the ratio of Johnson v Unisys, is that the common law does not imply into a contract of employment a term that the employer will not act unfairly towards the employee in relation to his dismissal and that the courts are not at liberty to develop the common law implied term of trust and confidence in order to give rise to such an obligation. However, the speeches recognise that where a breach of contract by the employer can be identified, the employee is entitled to obtain any remedy available to him under the general law".
- Having discussed the decisions in Eastwood and McCabe, Moore-Bick LJ continued:
"37. … the House of Lords in Johnson v Unisys was concerned only with the question whether it was permissible to develop the common law in a way that would recognise the existence of an implied term that the employer will treat an employee fairly in the manner of his dismissal. As such it was not concerned with the right of an employee to recover damages for breach of an implied term of the contract of a kind already recognised by the law, let alone for breach of an expressed term … The purpose of seeking to develop common law beyond its existing limits was, … an attempt to create a breach of contract additional to the dismissal itself.
- In the present case, however, the disciplinary procedure was incorporated into Mr Edwards' contract and Trust's failure to implement it gave rise to a breach of contract which, on the face of it, is capable of sounding in damages". Any such damages would, however, be assessed on the basis of loss of earnings, not on the assumption that his employment with the respondent would have continued, but on the basis that he had had to seek employment elsewhere.
- Mr Berkley argued that, following Edwards, the claimant had a common law right of action in respect of breaches of contract which had allegedly occurred - not only at the exclusion and investigation stages – but also during the disciplinary hearing which led to her dismissal.
- There can be no doubt, following Johnson, that the implied term of trust and confidence – and the requirement of fairness that flows from that implied term – cannot extend to a disciplinary process which leads to dismissal. Mr Hillier contended that "the Johnson exclusion area" began with the letter notifying the claimant of the date of the disciplinary hearing. From that point, he said, any breaches of contract which may have occurred – save for breach of an express term – did not give rise to a cause of action. Mr Hillier noted that, in the case of Lakshmi v Mid Cheshire Hospitals NHS Trust  EWHC 878 (QB), Mr Simeon Maskrey QC, sitting as a Deputy High Court Judge, found that the defendant's failure to postpone the disciplinary hearing constituted a breach of confidence antecedent to the disciplinary hearing itself and therefore falling outside the "Johnson exclusion area". Nevertheless, Mr Hillier submitted that the point at which the "Johnson exclusion area" starts in each individual case depended on the specific facts and timing.
- Paragraph 188.8.131.52 of the Trust Procedure provides:
"The hearing should be conducted courteously and fairly …".
Mr Berkley submitted that paragraph 184.108.40.206. imposed an express obligation on the Trust to conduct the disciplinary hearing fairly. Mr Hillier disagreed. He argued that the concept of "fairness" was too vague, subjective and uncertain to provide the basis for a contractual term. He suggested that the words at paragraph 220.127.116.11 constituted mere guidelines to employing authorities, directing how hearings should be undertaken.
- I cannot agree with that submission. I am satisfied that the requirement as to fairness was intended to be an express requirement of the Trust Procedure and became an expressed term of the claimant's contract. I do not consider that it is too vague or uncertain a concept to constitute such a term. Consequently, a breach of the requirement for fairness before or during the disciplinary hearing would, I find, be actionable as a breach of an express term of the claimant's contract of employment.
The application of Article 6 of the ECHR
- Article 6 of the ECHR provides:
"In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …".
- Mr Berkley contended that Article 6 of the ECHR applied to the claimant's disciplinary hearing. He argued that the procedure adopted at the hearing was not compliant with Article 6 in a number of respects. In particular, he argued that the Panel hearing the case were not independent or impartial. Only one member of the Panel was not employed by the defendant Trust. It will be recalled that the new procedures introduced by the DoH in 2003 (and implemented locally in 2005) were specifically intended to transfer responsibility for disciplinary hearings from independent panels to local employing authorities. The procedures had been the subject of agreement with practitioners' representatives both nationally and locally. MHPS stipulated that a panel hearing a case of professional misconduct against a practitioner must include one member who is not currently employed by the relevant employing authority. The implication was that the other Panel members would or might be members of the relevant authority. Thus, the contention advanced by Mr Berkeley, if correct, would potentially have very far reaching consequences on the disciplinary procedures operated by NHS Hospital Trusts throughout England and Wales.
- I did not hear extensive argument on the Article 6 point. The submissions of counsel were centred mainly on the obiter remarks of Smith LJ in Kulkarni v Milton Keynes Hospital NHS Foundation Trust and the Secretary of State for Health  EWCA Civ 789. In that case, the appellant was a trainee doctor who, four weeks after the start of his employment with the respondent, had been the subject of a complaint of sexual assault. An investigation followed which was plainly going to result in disciplinary proceedings. The appellant was informed by the Trust that he was not entitled to have legal representation by a lawyer retained by the Medical Protection Society. He applied to the court for a declaration that he was entitled to legal representation and for an injunction restraining the respondent from pursuing the disciplinary proceedings unless and until it allowed him such representation.
- Giving the judgment of the court, Smith LJ found that, in refusing to permit the appellant legal representation, the respondent was in breach of its contractual obligation to him under its disciplinary procedure (a document equivalent to the Trust Procedure in this case). She went on to observe:
"64. In Le Compte v Belgium  4 EHRR, the appellants who were medical practitioners had faced disciplinary proceedings before the Belgian Ordre des Médecins, as a result of which they were suspended from practice. Dr Le Compte had defied the suspension; criminal proceedings followed and he was imprisoned and fined. The applicants appealed to the ECHR alleging inter alia that the disciplinary proceedings had not been Article 6 compliant. The Court said that Article 6 rights were not usually engaged in disciplinary proceedings but that they could be in some circumstances. What those circumstances might be was not explained. In the present case, the right to practise medicine was a civil right and article 6 was engaged.
65 It appears to me that the distinction which the court was drawing was that, in ordinary disciplinary proceedings, where all that could be a stake was the loss of a specific job, article 6 would not be engaged. However, where the effect of the proceedings could be far more serious and could, as in that case, deprive the employee of the right to practise his or her profession, the article would be engaged.
66 The difficulty is to know where to draw the line. Mr Stafford and Miss Lee [counsel for the respondent and the Secretary of State] both submitted that Dr Kulkarni was facing ordinary disciplinary proceedings brought by his employer and the only effect, if the charge was found proved, would be that he would lose his job. Only proceedings before the General Medical Council can deprive a doctor of the right to practise. But, as Mr Hendy [counsel for the appellant] pointed out, the National Health Service is, to all intents and purposes, a single employer for the whole country. Indeed, for a trainee doctor, that is literally true, as a doctor cannot complete his training in the private sector. If Dr Kulkarni is found guilty on this charge, he will be unemployable as a doctor and will never complete his training. If he applies for any other position he will be obliged to declare the findings against him and the fact of his dismissal. Moreover, submitted Mr Hendy, it is highly likely that the system of "alert letters" would be operated in this case if Dr Kulkarni were found guilty. An alert letter is a letter warning other NHS employers not to employ the doctor named, who is regarded as presenting an unacceptable risk to patients…
- It seems to me that there is force in Mr Hendy's submission and, had it been necessary for me to make a decision on this issue, I would have held that Article 6 is engaged where a NHS doctor faces charges which are of such gravity that, in the event they are found proved, he will be effectively barred from employment in the NHS".
- Mr Berkley argued that the position is the same in this case. The claimant was employed by a NHS Trust and, if dismissed for gross misconduct, would find it very difficult - if not impossible - to find alternative employment in her chosen profession. In effect, it is said, her position will be the same as that of Dr Kulkarni in that she would be "effectively barred from employment".
- Mr Hillier submitted that the application of Article 6 to disciplinary proceedings is the exception, rather than the rule. He accepted that the right to practise one's profession has been recognised as a civil right for the purposes of Article 6. However, he argued that the disciplinary proceedings against the claimant did not have the effect of determining her right to practise as a doctor. The only right that was determined was her right to practise as a staff grade ophthalmologist for the defendant Trust. Unless her right to practise was removed by the GMC, it would still be open to her to work in the UK within the NHS or the private sector, as well as anywhere else in the world.
- Mr Hillier submitted that, in any event, the claimant was in a very different position from the appellant in Kulkarni. She had failed to establish on the evidence that she would be "effectively barred from employment", in the NHS or elsewhere, as a result of her dismissal. The evidence was that she may well be able to obtain employment elsewhere. He submitted that each case was fact sensitive and that the facts in the claimant's case were not such as to support the application of Article 6. .
- Although the fact that the claimant had been dismissed by the Trust would obviously present a considerable handicap in obtaining work in the future, I do not accept that the claimant's dismissal would have the same effect as that of Dr Kulkarni. The misconduct alleged against her was of a very different type. It is highly unlikely that she would be the subject of an alert letter. Moreover, she had completed her training and had worked for a number of years within the NHS without incident. She would be able to provide good references from former colleagues in her field. Indeed, the evidence of Mr Robert Pearson, medical director of the Trust, was that the Trust would provide her with a reference making clear that there had been no complaints or concerns about her before the incident giving rise to her dismissal. As a staff grade ophthalmologist, the claimant would not generally be working independently. An employer, whether in the NHS or the private sector, may well feel that, with the appropriate supervision, she would be able to fulfil a useful function. I accept Mr Pearson's evidence that NHS authorities, including the defendant Trust, do on occasion employ practitioners who have been the subject of disciplinary findings in the past. I do not accept therefore that the claimant would be "effectively barred from employment in the NHS" or elsewhere. Her circumstances are clearly distinguishable from those of Dr Kulkarni.
- I recognise the force of the submission made by Mr Berkley that it appears unsatisfactory for the decision as to whether Article 6 applies to disciplinary proceedings against hospital practitioners to be taken on a case by case basis, depending on the gravity of the charge, the prospect of the proceedings resulting in dismissal and/or the evidence about the practitioner's chances of obtaining alternative employment in the event of dismissal. As he said, this would lead to inevitable uncertainty as to whether Article 6 was engaged in any individual case. It seems to me arguable that the wide range of individual circumstances covered by the disciplinary procedures militates against a finding that Article 6 is engaged in relation to disciplinary proceedings taking place pursuant to MHPS. In any event, I do not consider that the claimant's case falls within the type of exceptional circumstances envisaged by Smith, LJ and I find that Article 6 did not apply.
- Neither can there have been any implied term that the disciplinary hearing would be conducted in accordance with Article 6, as contended by Mr Berkley. Such an implied term would have been completely inconsistent with the terms of MHPS and the Trust Procedure, which envisage that disciplinary hearings will be dealt with locally by employing authorities, rather than by independent panels as previously.
- The claimant's exclusion from work, the investigation into the events of 11 and 13 June and the subsequent disciplinary hearing were all conducted under the provisions of the Trust Procedure. It is necessary to consider whether, in respect of each process, the Trust was in breach of its contractual obligations.
The Claimant's exclusion from work
The immediate exclusion on 13 June
- Mr Pearson was informed on 13 June of the events which had come to light. He spoke to Mr Mills who told him what he knew about the incident. He also saw the incident report form which had been completed by Mrs Mottershead. It was Mr Pearson who took the decision to exclude the claimant. His evidence was that, since the claimant had been involved in a critical incident affecting patient safety and there had also been a report that she had discussed the incident with other members of staff involved, so as potentially to influence their input to any subsequent investigation, he considered that the only appropriate course was to exclude her from work with immediate effect.
- Mr Pearson said that, before making his decision, he had considered the relevant provisions of the Trust Procedure and, in particular, whether measures short of exclusion would be appropriate. He said that the alleged incident itself would have been serious enough to consider immediate exclusion. The suggestion of interference with potential witnesses compounded the situation. He was concerned that the claimant's continued presence at the hospital could lead to further concerns about interference. He therefore instructed Mr Mills to meet the claimant and to inform her that she was to be excluded with immediate effect.
- Mr Pearson said that Mrs Guppy was removed from clinical duties on 13 June although, unlike the claimant, she was not immediately excluded. The factor that "tipped the balance" in favour of exclusion in the claimant's case was the allegation that she had sought to interfere with witnesses. However, on 25 June, Mrs Guppy was excluded from all duties, following an interim report from the team investigating the case against her. Mrs Whittle was a clinical support worker who worked under supervision at all times. She was permitted to continue with her usual duties.
- In the afternoon of 13 June, some time after the incident in the PCC, the claimant was summoned to a meeting with Mr Mills and Ms Alison Wake, corporate head of medical staffing. According to the claimant, Mr Mills told her that the incident on 11 June had been serious and required further investigation. He said that, pending such investigation, she would be excluded from work, initially for a period of two weeks. She was told that she should not return to the hospital and that, if she wished to contact anyone who worked there, she should do so via Ms Wake.
- In evidence, the claimant said that, on 13 June, she was given no explanation as to why she was being excluded from work. She told me that she did not know at that stage what allegations were being made against her. It is to be noted, however, that, at an investigatory meeting on 30 June (to which I shall refer further later in this judgment), she said that Mr Mills had accused her of three things: first, that she had instructed the nurses that it was acceptable to wash the scissors between cases; second, that she had knowingly used non-sterile scissors; and, third, that she had asked the nurses not to report their concerns. It is difficult to reconcile what she said on 30 June with her insistence in evidence that she had been unaware at the time of the allegations being made against her.
- The claimant's immediate exclusion was later confirmed by a letter dated 16 June, which stated:
"The exclusion is to allow a full investigation into the incident."
- Mr Pearson said that it was clear from the start that a formal investigation would be required into the events of 11 June and into possible misconduct by the claimant, Mrs Guppy and Mrs Whittle. Under the provisions of the Trust Procedure, Mr Pearson was appointed as Case Manager to oversee the investigation. He said that experience had shown that, where both medical practitioners and nurses were involved in an incident, problems could be caused if separate investigations were conducted. The better course was to have a single investigation dealing with all those involved. He therefore appointed Dr Mike Maresh, consultant gynaecologist and obstetrician and associate medical director of the Trust, as Investigating Manager, together with Ms Linda Adamson, lead nurse. The third member of the investigation team was Mrs Jenny Williams, divisional human resources manager, who acted as adviser to Dr Maresh and Ms Adamson.
- A further letter dated 19 June, written by Ms Adamson, was sent to the claimant informing her of an investigatory meeting which had been arranged for 30 June to discuss the allegation:
"That equipment was used during a surgical procedure that had not been correctly decontaminated and sterilised in accordance with Trust Policy and Infection Control Policies, putting patients and staff at risk."
- At that point, the claimant informed the Trust that she had appointed Mr Rajendra Chaudhary to act as her representative in the disciplinary process. Mr Chaudhary is a doctor who retired from practice following litigation against his employers and the BMA. He has a Graduate Diploma in Law and the Bar Vocational Diploma and has for some years advised and assisted doctors in disciplinary proceedings.
- Mr Chaudhary telephoned Ms Wake on 19 June. During their conversation, he queried the reason for the claimant's exclusion given in the Trust's letter of 16 June (i.e. "to allow a full investigation") and the lack of any specific allegation of misconduct. Ms Wake suggested that one reason for the claimant's exclusion was that her presence was likely to hinder the ongoing investigation.
- Mr Chaudhary repeated his concerns in a letter dated 20 June which, although wrongly directed, was passed to Mr Pearson. He complained that the claimant had not been told at the time she was excluded that it was believed that she might hinder the investigation. He said that the claimant had never intentionally sought to influence any witness and that, when she spoke to Mrs Mottershead in the PCC, she had not believed that a formal investigation was under way. He complained also that the letter of 16 June had not stated the allegation(s) on which the exclusion was based. He asked for the exclusion to be removed and replaced with restrictions on the claimant's practice.
- Mr Pearson replied to Mr Chaudhary, explaining that he would correspond only with the claimant direct. He then wrote to the claimant, stating:
"Consideration to alternative action avoiding exclusion was given. However, it was decided that there was a need for immediate exclusion due to the fact that a critical incident has taken place which needs to be fully investigated and as it was felt that your presence is likely to hinder the investigation."
Contact with the National Clinical Assessment Service
- On 24 June, Ms Wake contacted the National Clinical Assessment Service (NCAS) by telephone, seeking advice in the claimant's case. A NCAS adviser, Dr Umesh Prabhu, summarised the Trust's concerns and his advice in a letter to Ms Wake dated 2 July. The letter contained a full discussion of the relevant guidance contained in MHPS and referred to other regulations and guidance that might be applicable. Dr Prabhu stressed that the final decision whether or not to exclude the claimant was the Trust's responsibility.
- When summarising the account given to him by Ms Wake, Dr Prabhu stated:
"You told me that the nurses who were involved were redeployed, however, [the claimant] was interfering with the Trust's internal investigation and hence on 13 June 2008, the Trust excluded [the claimant]".
In a later letter dated 1 September, following a discussion with Ms Wake on 28 August, Dr Prahbu wrote:
"You informed me that the doctor had interfered with the Trust investigation by contacting some key witnesses and hence the Trust decided to continue with the exclusion".
- On 10 October, after Mr Chaudhary had sought disclosure on the claimant's behalf of the Trust's correspondence with NCAS, Ms Wake emailed Dr Prabhu, requesting that the two letters should be amended to reflect the fact that she had told Dr Prabhu, not that the claimant had interfered with the investigation, but that the Trust had been informed that she had attempted to do so. She said that, when she reviewed the letters, she realised the errors that had been made and attempted to get them corrected so as to reflect accurately what she had said.
The formal exclusion on 26 June and thereafter
- On 26 June, the claimant and Mr Chaudhary were invited to a meeting with Mr Pearson and Ms Wake. The only available record of the meeting is that made by Mr Chaudhary which is (subject to a couple of matters) accepted by the Trust as a broadly accurate summary. The claimant was told that she would be excluded for a further four weeks, after which there would be a review. Mr Pearson referred to the fact that there had been a critical incident, potentially involving an issue of misconduct in using non-sterile instruments. When pressed on the reason for the exclusion, he referred to the seriousness of the incident. When asked directly whether he was suggesting that the claimant had been interfering with the investigation, he said that he was not. He merely wanted to make sure that there was "no potential for that" or for anyone to suggest that she had been doing so. He mentioned the fact that she had been seen speaking to nursing staff. He assured the claimant and Mr Chaudhary that all the members of staff involved were being treated consistently.
- In her evidence, the claimant complained that, at the meeting on 26 June, Mr Pearson did not tell her why she was being excluded. Yet the note of the meeting taken by Mr Chaudhary made clear that she was informed of the reasons. The last two lines of the note recorded:
"Potential that you could hinder the investigation. You were seen speaking to nursing staff.
The incident is serious enough to warrant exclusion".
- Subsequently, both the claimant and Mr Chaudhary suggested that, at the meeting, Mr Pearson had stated unequivocally that there was no allegation that the claimant had sought to interfere with the investigation. Mr Chaudhary's notes made clear that was not the case. As Mr Pearson explained in evidence, he was fully aware at the time of the meeting of the allegations of attempted interference being made by Mrs Whittle and Mrs Mottershead. However, he did not want to appear to be pre-judging the issue or to enter into a debate with the claimant at that stage as to whether or not she had sought to influence witnesses. He therefore told her that he did not want to put her into a position where anyone might think that she was interfering.
- The claimant's exclusion was confirmed by a letter dated 27 June. The letter repeated the allegation of the use of non-sterile equipment which had been contained in the earlier letter of 19 June and stated that the purpose of the exclusion was "to facilitate a fair and proper investigation of the above allegation". The claimant was informed, inter alia, that if she needed to visit the hospital for any reason she should contact Mr Mills.
- Mr Pearson said that, after the meeting on 26 June, the claimant's exclusion was kept under review as required by the Trust Procedure. He held a routine weekly meeting with the associate medical directors, including Dr Maresh. Ms Wake was usually present at the meetings. At each meeting, the progress of all ongoing investigatory and disciplinary activities involving medical and dental practitioners employed by the Trust was discussed. Dr Maresh, who was responsible for supervising investigatory and disciplinary matters, would report orally on the progress of each case. He kept a log of all ongoing cases, in which he recorded the action taken in each case, together with details of any future action that was planned. That document formed the basis of his weekly reports to Mr Pearson. Dr Maresh produced his log for the relevant period, showing details of the progress in the claimant's case.
- At the weekly meetings, there would be discussion about those practitioners who were excluded. When the period of a practitioner's current exclusion was about to expire, there would be a discussion as to whether or not it should be extended. Mr Pearson said that he would take the decision whether or not to extend a practitioner's exclusion and he took that decision in the claimant's case. Dr Maresh's evidence was that he did not take any part in the decision to exclude the claimant. He merely recorded in his log the fact that the claimant's exclusion (and that of Mrs Guppy) was to be extended.
- Ms Wake maintained an individual checklist in each case of exclusion, in which she set out the steps to be taken under the Trust Procedure and the dates on which the relevant action was taken. The checklist for the claimant records that her exclusion was reviewed at meetings on 23 July, 19 August, 15 September and 10 October. On each occasion, a decision was taken to extend the claimant's exclusion, all necessary formal steps were taken and the claimant was informed.
- At an early stage of her exclusion, the claimant was informed that she was entitled to make representations about her exclusion to the Trust Board member who had been designated, under the Trust Procedure, to oversee the investigation. The designated Board member was Ms Jo Somerset, a non-executive director of the Trust. On 6 August, Mr Chaudhary wrote to Ms Somerset. In his letter, he stated (erroneously) that, at the meeting on 26 June, the only reason Mr Pearson had given for the claimant's exclusion was "to ensure patient safety". He asserted that there was no necessity for the claimant to be excluded. He complained that Mrs Whittle was still at work, whereas the claimant had been excluded. He requested that the exclusion be lifted. In her response, Ms Somerset, who is a management and training consultant with a particular interest in human resources (HR), said that she had received regular reports on the progress of the investigation. She had asked Mr Pearson to ensure that the investigation was concluded as quickly as possible. Meanwhile, she said, she had agreed to the continuing exclusion of the claimant.
- Mr Chaudhary wrote to Ms Somerset again on 10 September. He suggested that the Trust was acting improperly and was treating the claimant unfairly. He observed that:
"… there is now a growing concern that in being excluded [ the claimant] has been treated less favourably than someone of a different race …".
He invited Ms Somerset to reconsider his earlier representations.
- In a letter dated 19 September, Ms Somerset responded that, having re-examined the concerns expressed, she felt that the decision to continue the claimant's exclusion had been made in a proper way and was required in the circumstances. She indicated that she had been informed that the investigation had been concluded and that the claimant would be contacted shortly.
- Ms Somerset's evidence was that, on her appointment as the designated Board member in the claimant's case, she had been briefed by the director of HR, Mr Derek Welsh. In addition, she had received regular up-dates from Mr Pearson. She said that, on receiving Mr Chaudhary's first letter, she had discussed with Mr Pearson the various points raised. Having done so, she was satisfied that the investigation was being conducted properly. She recalled asking why Mrs Whittle had not been excluded and was told that, as an unqualified employee, she worked under direct supervision at all times so that no risk to patient safety arose in her case.
- Ms Somerset said that, after receipt of the second letter from Mr Chaudhary, she spoke to Mr Welsh and Mr Pearson. She could find no grounds for the assertions of impropriety. She had been concerned at the time the investigation was taking but, by then, it was nearing conclusion. She denied the suggestion made by Mr Berkley that she had carried out her duties in a "perfunctory manner". She said that she recalled six different occasions over the three-month period of the investigation when she had been directly involved in scrutinising the way the investigation was being handled. On each occasion, she was satisfied with what she had been told. **
The alleged breaches relating to exclusion
- The Particulars of Claim alleged five breaches of the terms of the Trust Procedure in relation to exclusion I shall deal with each of them separately.
(i) (at paragraph 30(a),(b),(w) and (x) of the Particulars of Claim)
Failure to consider alternative ways of managing the claimant, the feasibility of alternative action and whether or not exclusion from the Trust's premises (as distinct from exclusion from work) was absolutely necessary, contrary to paragraphs 9.1, 9.2 and 9.8 of the Trust Procedure.
- Paragraph 9.1 of the Trust Procedure states that exclusion from work is to be considered as a "last resort if alternative courses of action are not feasible". Exclusion is to be reserved for "only the most exceptional circumstances". The type of "exceptional circumstances" that might require immediate exclusion are set out in paragraph 9.6 of the Trust Procedure which provides: :
"In exceptional circumstances an immediate time limited exclusion may be necessary following
* A critical incident when serious allegations have been made or
* There has been a break down in relationships between a colleague and the rest of the team or
* If the presence of the practitioner is likely to hinder the investigation."
- Paragraph 9.7 sets out circumstances in which formal exclusion can be undertaken, namely where there is a need to protect the interests of patients or other staff pending the outcome of a full investigation of allegations of misconduct; concerns about serious dysfunctions in the operation of a clinical service; or concerns about the capability or poor performance of sufficient seriousness that it is warranted to protect patients; or where the presence of the practitioner in the workplace is likely to hinder the investigation.
- Paragraph 9.8 of the Trust Procedure provides that, before considering exclusion from Trust premises, the Case Manager must consider whether such a step is "absolutely necessary".
- In support of this allegation of breach, Mr Berkley contended that Mr Pearson erred in deciding immediately to exclude the claimant on the basis of oral information from Mr Mills to the effect that the claimant had spoken to the nurses involved. He should have made further enquiries about the allegations and he should have ensured that both the information given to him by Mr Mills and the reason for his decision to exclude were recorded in writing. He should have considered whether it would be feasible for the claimant to continue at work with restrictions in place, particularly since it was considered appropriate for Mrs Guppy to remain at work on restricted duties.
- Furthermore, Mr Berkley argued that the reasons given for the claimant's exclusion – namely that a critical incident had occurred and her continued presence at work was likely to hinder the investigation – were not sufficient grounds to satisfy the requirements for an immediate exclusion under paragraph 9.6. He pointed to the different reasons allegedly given for the claimant's exclusion: in Mr Pearson's letter of 24 June (that "her presence was likely to hinder the investigation"), at the meeting between Mr Pearson, the claimant and Mr Chaudhary on 26 June (that there was a risk that she might be thought to be interfering with the investigation) and by Ms Wake to NCAS (that she had interfered with the investigation). He suggested that these inconsistencies, together with the absence of any contemporaneous documents, shed doubt on the veracity of the reasons given by Mr Pearson for excluding the claimant initially and for continuing that exclusion.
- As to the claimant's formal exclusion, Mr Berkley pointed to the provisions of paragraph 9.7 of the Trust Procedure which states:
"A formal exclusion may only take place after the Case Manager has first considered whether there is a case to answer and then considered, at a case conference, whether there is reasonable and proper cause to exclude …if an Investigating Manager has been appointed they must produce a preliminary report as soon as is possible to be available for the case conference. This preliminary report is advisory to enable the Case Manager to decide on the next steps as appropriate."
He submitted that the weekly meetings described by Mr Pearson were not "case conferences" within the meaning of paragraph 9.7. He relied on the evidence of Ms Wake that she would have expected a "case conference" to have been a more formal meeting, possibly between Mr Pearson, Mr Walsh and the chief executive. He argued that it was clear also that the "preliminary report" referred to in paragraph 9.7 should have been in writing.
- For the Trust, Mr Hillier accepted that paragraph 9.1 of the Trust Procedure gave rise to a contractual obligation on the Trust, before taking a decision to exclude the claimant from work immediately or formally, to consider whether there was an alternative way of managing her so as to permit her to remain at work subject to restrictions. He accepted also that, if the claimant were to be excluded, it must be for a reason which fell within paragraph 9.6 (for immediate exclusion) or paragraph 9.7 (formal exclusion). He argued that the circumstances of both the claimant's immediate and formal exclusions fell within those paragraphs, that the Trust was fully justified in excluding the claimant from work and from the RMEH and that its action in doing so involved no inconsistency with the treatment of either Mrs Guppy or Mrs Whittle.
- Mr Hillier conceded that it would have been preferable if the Trust had held a rather more formal case conference and if Dr Maresh's report had been presented in writing. However, he submitted that there had been no material breach of the requirements of paragraph 9.7 of the Trust Procedure.
Discussion and conclusions: (i)
- By the early afternoon of 13 June, the Trust was aware that a critical incident had occurred and that an allegation had been made against the claimant that she had knowingly used non-sterile scissors on a number of patients. If she had indeed acted as alleged, that would constitute a fundamental breach of good surgical practice and have grave implications for the safety of patients. It was a very serious allegation. There were also allegations of attempted interference with potential witnesses both before and after her first interview with Mr Mills. Those allegations, if true, strongly suggested that the claimant's presence at work and at the hospital premises might hinder any future investigation. I am quite satisfied that the Trust was entitled - indeed correct - to find that two of the three requirements of paragraph 9.6 of the Trust Procedure were met.
- Mr Pearson's evidence was that he had considered whether it would be sufficient to impose restrictions on the claimant's practice. However, he concluded that the seriousness of the allegations and their potential impact on patient care meant that there was little scope for the claimant to resume any clinical duties. I consider that he was entirely justified in reaching that conclusion. Even the examination of patients in a clinic would have involved the exercise of care to avoid cross-infection and, if the allegation was correct, the claimant could not be relied upon to exercise such care. Her continued presence at the hospital, even if restricted from performing surgery, might well have put patients at risk. In any event, Mr Pearson was aware through Mr Mills of allegations made by Mrs Mottershead and Mrs Whittle that the claimant had sought to influence witnesses. Mr Mills had actually seen the claimant talking to Mrs Mottershead and Mrs Whittle immediately after his meeting with her. He considered – and no doubt told Mr Pearson that he considered – that her action in doing so was wholly inappropriate.
- In those circumstances, it is not surprising that Mr Pearson concluded that a decision to permit the claimant to remain at work with restrictions would have given rise to a clear risk that she might seek to speak to, and influence the evidence of, the other members of staff involved in the investigation. In the circumstances, I can find no evidence of a breach of the Trust's obligations under paragraphs 9.1, 9.2, 9.6 or 9.8 of the Trust Procedure in relation to the claimant's immediate exclusion. The absence of any contemporaneous documents recording the account of events given by Mr Mills or the process of reasoning leading to Mr Pearson's decision does not affect my conclusion.
- I find that there was no inconsistency between the claimant's treatment and that of Mrs Guppy. The latter had frankly admitted that she had knowingly provided non-sterile scissors for the claimant's use (albeit claiming that she had done this at the claimant's instigation). There was moreover no suggestion that she had sought to contact potential witnesses or to influence their evidence. There was a clear distinction between her case and that of the claimant. As for Mrs Whittle, she was in an entirely different position. As an unqualified employee, she was working at all times under the directions of a qualified nurse. There was never any suggestion that she had done anything other than to obey orders or copy what Mrs Guppy had done. Her culpability, if any, would inevitably be far less than that of her professional colleagues. There was no evidence that, if properly directed, she presented any danger to patient safety. Nor was there any suggestion that she had sought to interfere with potential witnesses.
- By the time of the claimant's formal exclusion on 26 June, the evidence in the Trust's possession was such as to entitle Mr Pearson to conclude that there was a case for her to answer. Both Mrs Guppy and Mrs Whittle were admitting the use of non-sterile scissors during the surgical procedures on 11 June. The claimant had carried out those procedures. The evidence of Mrs Mottershead, Mrs Guppy and Mrs Whittle suggested that the claimant had been aware that she was using non-sterile scissors. There was plainly a potential misconduct issue which required investigation. There was also evidence that the claimant had attempted to influence potential witnesses. The advice of NCAS had been sought and received. There was no suggestion by Dr Prabhu that exclusion would be inappropriate in the circumstances. I do not accept that his advice had been given on a false basis, namely that it had been proven that the claimant had interfered with the investigation. I accept Ms Wake's evidence that she told Dr Prabhu only (as was the case) that the Trust had evidence of interference. I can readily believe that "we have evidence that X is the case" could have been rendered by him as "X is the case". I am satisfied that, in all the circumstances, Mr Pearson was entitled to conclude that the requirements of paragraph 9.7 of the Trust Procedure were met.
- I do not accept that there was any inconsistency in the reasons given by the Trust for excluding the claimant. I entirely accept Mr Pearson's evidence that, at the meeting on 26 June, he was anxious not to be confrontational or to appear to be pre-judging the claimant. He therefore told the claimant that he wanted to avoid her being suspected of interfering with the investigation. The claimant and Mr Chaudhary suggested that that was the sole reason Mr Pearson gave to them for the claimant's exclusion from work. That suggestion was wholly misleading. The notes of the meeting show that he made the other reasons for the claimant's formal exclusion entirely clear. I have already said that I do not accept that a different reason was given by Ms Wake to Dr Prabhu.
- It would have been preferable if Mr Pearson's decisions and his reasons for them, together with minutes of any meetings and relevant discussions, had been recorded in writing. However, the fact that they were not does not mean that his reasoning was not sound or that the claimant's immediate exclusion was in breach of contract. I am satisfied that Mr Pearson was at all times consistent in his reasons for excluding the claimant and that those reasons were justified by the evidence then in the possession of the Trust.
- No formal case conference of the type described by Ms Wake in her evidence was held. Instead, the formal exclusion was dealt with at Mr Pearson's weekly meeting with the associate medical directors and Ms Wake. Dr Maresh's preliminary report was delivered orally at the meeting. It would (as the Trust has conceded) have been better if a more formal meeting had been held and minuted, and if Dr Maresh's report had been reduced into writing. However, there is no definition within the Trust Procedure of precisely what constitutes a "case conference" and no express requirement that the Investigation Manager's report must be delivered in writing. I therefore conclude that the fact that the meeting at which the decision formally to exclude the claimant was of a relatively informal nature and that the preliminary report delivered by the Investigating Manager was made orally at that meeting, did not give rise to any breach of the Trust's contractual obligations.
(ii) (at paragraph 30(c,)(u)and (v) of the Particulars of Claim)
Failure to take "immediate" or any advice when it began to consider the decision to exclude the claimant, contrary to paragraph 9.2 and 12.3 of the Trust Procedure and other failures in relation to contact in the NCAS.
- It is now accepted by the claimant that paragraph 12.3 is inapplicable to her circumstances. However, she relies on the provisions of paragraph 9.2 of the Trust Procedure which provides:
"In cases relating to the capability of a practitioner, consideration will be given as to whether an action plan to resolve the problem can be agreed with the practitioner. Advice on the practicality of this approach will be sought from NCAS. If the nature of the problem and a workable remedy cannot be determined in this way the Case Manager will seek to agree with the practitioner to refer the case to NCAS, which can assess the problem in more depth and give advice on any action necessary. The Case Manager will seek immediate telephone advice from NCAS when considering restriction of practise (sic) or exclusion".
- It was contended on behalf of the claimant that, notwithstanding the reference to "cases relating to the capability of a practitioner" at the start of the paragraph, the final sentence referred also to cases involving allegations of misconduct. Accordingly, it was said, there was a contractual requirement that, before proceeding to exclude a practitioner or place restrictions upon his/her practice, the Trust was obliged to seek advice from NCAS.
- The Trust denied that the requirement to seek advice from NCAS constituted a legal obligation enforceable by the claimant. Mr Hillier contended that, in any event, the requirement arose after immediate exclusion and before formal exclusion and that the Trust had complied with the requirement.
Discussion and conclusions: (ii)
- Paragraph 9.2 must be read in conjunction with paragraph 9.6 (which provides, inter alia, that an immediate exclusion will allow a period for "more measured consideration", during which advice from NCAS may be sought) and with paragraph 9.7 (which provides that NCAS must be consulted where formal exclusion is being considered).
- I find that the relevant section of paragraph 9.2 refers to cases where a practitioner's capability is in issue, rather than cases of professional misconduct. Any other interpretation would be inconsistent with paragraphs 9.6 and 9.7. I find that there is no contractual obligation to seek advice from NCAS before immediate exclusion takes place. Paragraph 9.6 clearly envisages that the advice of NCAS will be sought after an immediate exclusion. I accept the claimant's contention that paragraph 9.7 creates a contractual obligation on the part of the Trust to seek advice from NCAS before a decision is taken formally to exclude a practitioner. However, it is clear from the evidence that the Trust complied with its contractual obligation in this respect.
- Paragraph 8.5.1 of the Trust Procedure states that NCAS "prefers" the first approach to it to be made by the chief executive or medical director. It also refers to discussions between the Case Manager and NCAS. The terms of paragraph 8.5.1 are of an advisory nature and not apt to constitute a contractual term actionable by the claimant. Accordingly, the fact that contact with NCAS was made by Ms Wake, rather than the chief executive or Mr Pearson, does not place the Trust in breach of its contractual obligation.
(iii) (at paragraph 30(d) of the Particulars of Claim)
Failure to keep the decision to exclude under any or adequate review by the Case Manager, the designated non-Executive member of the Board or the chief executive and failure on the part of the Case Manager to prepare and present an advisory report to the chief executive/Board, contrary to paragraph 9 of the Trust Procedure.
- The claimant contended there were no proper reviews of her exclusion as required by the Trust Procedure. The absence of such reviews is, it was said, evidenced by the absence of contemporaneous minutes of meetings and records of discussions, together with the absence of any formal case conferences and written reports from the Investigating Manager.
- The Trust accepted that it was under a contractual obligation to keep the claimant's exclusion under review. It contended that Ms Wake's checklist demonstrated that the exclusion was subject to regular review, as described by Mr Pearson. It is accepted that good practice would have been for reports to have been made in writing and for minutes of discussions and reasons for decisions to have been kept. However, it is contended that those were administrative matters and that a failure to keep such documentation cannot of itself give rise to a breach of the Trust's contractual obligation. Regular oral reports were made to the Board and the chief executive and are documented in Ms Wake's checklist. Ms Somerset's evidence made clear that she received reports and reviewed the situation on a regular basis. Further advice was taken from the NCAS in August 2008.
Discussion and conclusions: (iii)
- In my judgment, there was no failure to review or report. The evidence of the Trust's witnesses, coupled with the available documents, demonstrates that the exclusion was kept under review as appropriate and that all reports to the chief executive and the Board were made as required by the Trust Procedure. The designated Board member carried out her functions conscientiously. It was not for her to institute a parallel investigation. As I have remarked previously, good practice would have required discussions and decisions to have been better documented, but the absence of such documentation does not mean that there was no proper review or reporting. Nor does it put the Trust in breach of its contractual obligations to the claimant. There is no requirement in the Trust Procedure that all reports should be made in writing.
(iv) (at paragraph 30(e) of the Particulars of Claim)
Failure, during the third period of the claimant's exclusion, to make a report to the chief executive of the Trust outlining the reasons for the continued exclusion and why restrictions on practice would not be an appropriate alternative and, if the investigation had not been completed, a timetable for completion of the investigation, contrary to paragraph 9.12 and 9.13 of the Trust Procedure.
- The claimant alleged that no such report was produced and that the Trust was therefore, in breach of its contractual obligations to the claimant. The Trust's case is that, whether or not the requirement to report gave rise to a contractual obligation, the evidence of Mr Pearson, supported by Ms Wake's checklist, made clear that reports were made by him to the chief executive on 24 July, 21 August and 18 September.
Discussion and conclusions: (iv)
- In my judgment, paragraph 9.13 of the Trust Procedure gives rise to a contractual obligation. I accept the Trust's evidence that reports to the chief executive were made after each review of the claimant's exclusion. There is no requirement within the Procedure that reports must be made in writing although this would be good practice. The reasons for the extension of the exclusion were set out in Mrs Wake's checklist and the claimant was sent appropriate written notice on each occasion.
(v) (at paragraph 30(f) of the Particulars of Claim)
Failure, even after the original reason for exclusion no longer applied, to lift the exclusion and allow the claimant back to work with or without conditions on her employment, contrary to paragraph 9.7 of the Trust Procedure.
- Paragraph 9.7 of the Trust Procedure states:
"The exclusion should usually be lifted and the practitioner allowed back to work, with or without conditions placed upon the employment, at any time the original reasons for exclusion no longer apply and there are no other reasons for exclusion".
- The claimant's case was that, once the investigation had concluded and the decision had been taken to proceed to a disciplinary hearing, the original reasons for exclusion no longer applied and she should have been permitted to return to work. In failing to permit her to do so, the Trust had acted in breach of contract. The Trust's case was that, given the circumstances, the grounds for exclusion persisted until the conclusion of the disciplinary hearing.
Discussion and conclusions: (v)
- I consider that there was no change in the underlying reasons for the claimant's exclusion. Although the investigation had been concluded, the Trust was entitled to take the view, on the evidence in its possession, that there remained a risk that the claimant would seek to discuss the case with potential witnesses and influence the evidence to be given at the disciplinary hearing. Moreover, the risk to patient safety remained. I find that the decision to continue the exclusion was fully justified in the circumstances and gave rise to no breach of the Trust's contractual obligations.
Allegations of lack of fairness: exclusion
- In addition to specific allegations of breach of its express contractual obligations, the claimant alleged that the Trust conducted the exclusion process unfairly, in breach of the implied term of trust and confidence. Her case was that she was treated unfairly from the first. Her perception was that the accounts of Mrs Guppy and Mrs Whittle were accepted without question, her own denials were ignored and the Trust pre-judged the case against her. She was treated less favourably than Mrs Guppy and Mrs Whittle without justification. She claimed that she had not been told of the allegations being made against her and had been given no reasons for her exclusion.
- I can find no justification for the claimant's complaints. They resulted in large part from her inability to appreciate the seriousness of the incident with which the Trust was faced and the questions that must inevitably have been raised about her own conduct. She appeared to expect that, once she had denied any knowledge of, or involvement in, the use of non-sterile equipment, that should have been the end of the matter. It is indicative of her attitude that, during her second meeting with Mr Mills on 13 June, she was reported by him as saying that it was a "waste of time" her denying anything as it would be two persons' word against hers. I have already observed that her claims that she was not told of the allegations being made against her and that she had been given no reasons for her exclusion are not borne out by the documentary evidence. They provide further evidence of her unreliability as a witness.
- Mr Chaudhary shared and encouraged the claimant's view that she was being treated unfairly. He is plainly an intelligent man and experienced in the role of companion/adviser in disciplinary proceedings. The letters he wrote on the claimant's behalf were well-expressed and often (although not always) raised pertinent issues. However, in his evidence to me, he tended to exaggerate and distort the facts in an attempt to place the Trust in the worst possible light. One example of this was the assertion in his witness statement (paragraph 6) that Mr Pearson had not replied to his letter of 20 June. When, in oral evidence, this assertion was demonstrated to be incorrect, he proceeded seriously to misrepresent the contents of the letter. Another example was his assertion that the contents of the anonymised Untoward Incident Form completed on 13 June 2008 by a senior member of the Trust management for communication to the SHA and NPSA revealed that the "entire management" of the Trust believed that the claimant had made admissions of guilt and that "it tainted the whole investigation". In fact, the document never came to the notice of those involved in the investigation or the disciplinary hearing and was created (from information then available) for a completely different purpose. Mr Chaudhary was wholly unable to see and/or accept that. He persisted in contending that it had been unfair and had influenced the investigation. Those are but two examples illustrating the unsatisfactory nature of his evidence. There were many others.
- By contrast, I found Mr Pearson to be an entirely credible witness. He is a medical professional with experience in disciplinary matters. He was faced with a serious incident and I am satisfied that he dealt with it as fairly and effectively as he could, consistent with the interests of patients and the Trust and his duty to the claimant. He was frank in acknowledging respects in which his and the Trust's practices could have been improved. He had no apparent motive for treating the claimant unfairly and I am satisfied that he would not have done so.
The effect of any breaches: exclusion
- The claimant contended that the evidence demonstrated several fundamental breaches of the provisions of the Trust Procedure in connection with exclusion. Mr Berkley contended that the breaches resulted in the claimant's unjustified exclusion from work and from the hospital premises. He submitted that this in turn prejudiced her position in the investigation and disciplinary processes since she was unable to approach work colleagues who might potentially have assisted her case at the investigatory or disciplinary stage by providing evidence about her high standards of professional practice.
- The Trust submitted that, even if there were any actionable breaches of its Procedure in relation to exclusion, they had no effect on the investigation process, the disciplinary hearing and/or the decision to dismiss the claimant. Consequently, the claimant had suffered no recoverable loss as a result of the wrongful (if such it was) exclusion.
- In the event, I have found that the Trust was not in breach of its obligations in relation to exclusion. However, even had I been satisfied that there had been one or more breaches, no damage would have resulted. So far as the claimant's contention that she was prevented from contacting witnesses is concerned, it had been made clear to her from the time when she was first excluded that she was at liberty to contact employees of the Trust provided that she did so by arrangement with Ms Wake or Mr Mills. The fact that she was excluded from work in no way prevented her from seeking and obtaining appropriate evidence from work colleagues about her professional practice. The only (perfectly reasonable) restriction placed upon her was that she had been warned not to attempt to contact persons associated with the investigation. In the circumstances, I cannot accept that her exclusion prejudiced her in the manner alleged or that it had any effect on the subsequent investigation, disciplinary hearing and/or decision to dismiss her or that it gave rise to any loss.
The investigation process
- I turn now to consider the conduct of the investigation as it related to the claimant.
- Dr Maresh told me that, in the first week after his appointment as Investigating Manager, he met Ms Adamson and Mrs Williams and they agreed on an outline plan for the investigation. They gave notice to the claimant, Mrs Guppy and Mrs Whittle of their intention to interview them on 30 June. The claimant's notice was contained in Ms Adamson's letter of 19 June to which I have already referred.
- The investigation team visited the PCC and a plan of its layout was prepared
Mrs Guppy's incident statement
- On 24 June, Mrs Guppy provided an incident statement to the investigation team, in which she gave a similar account of events to that which she had given to Mrs Bateman on 13 June. She described how she cleaned the scissors and how the claimant was present during that procedure. She referred to having seen Mrs Whittle cleaning the scissors but did not indicate that she herself had instructed Mrs Whittle to do this. She described the cleaned scissors having been re-used on two occasions.
The claimant's investigatory meeting on 30 June
- The claimant's investigatory meeting took place on 30 June. It was attended by Dr Maresh, Ms Adamson, Mrs Williams, the claimant, Mr Chaudhary, and a note taker. Before the meeting began, the claimant submitted, as she had been requested to do, a written statement setting out her response to the allegation contained in Ms Adamson's letter of 19 June. The account of events contained in her statement was virtually the same as that which appeared in her witness statement for these proceedings. There was an additional one-page summarised personal statement which stated that she had not knowingly used any non-sterile equipment during operations and had not tried to hinder, interfere or influence any investigation by the Trust.
- Before the meeting, Mr Chaudhary requested that he and the claimant be provided with copies of all documents held by the investigating team. The Trust did not consider that the claimant was entitled to see all the documents generated in the course of the investigation at that stage. However, just before the hearing, she and Mr Chaudhary were handed copies of the incident statements made by Mrs Whittle and Mrs Mottershead on 13 June and by Mrs Guppy on 24 June, together with a copy of the incident report form completed by Mrs Mottershead on 13 June.
- At the meeting, the claimant was questioned about the events of 11 and 13 June. She referred to the problems with obtaining equipment in the PCC. She explained that it was the role of the staff nurse on duty to ensure that all necessary equipment was available. She said that, at the outset of the list, she had informed Mrs Guppy that she would need scissors and cauteries. (That had not been mentioned in her written statement.) She said that she had understood that Mrs Guppy and Mrs Whittle had obtained those items. She was not aware that there was only one pair of scissors available. She said that, having assessed each patient before beginning the procedure, she would tell Mrs Guppy what equipment would be needed for that patient. Mrs Guppy would then put the equipment on a sterile trolley for the claimant's use. She said that she had been unaware that she was being given scissors which were non-sterile and that had been cleaned. If she had known that there were insufficient pairs of sterile scissors available, she would have sent the nurses to look for more and, if there had been none available, she would have modified her technique or, in the last resort, cancelled her list.
- The claimant went on to describe her conversation with Mrs Whittle on 13 June and her first conversation with Mr Mills on the same day. She said that she was surprised when Mr Mills had accused her of instructing the nurses that washing the scissors between cases was acceptable, of knowingly using non-sterile scissors and of asking the nurses not to report their concerns. The investigation team asked the claimant about Mrs Guppy's allegation that she had requested that the scissors should be cleaned. She denied that she had done so. She said Mrs Mottershead and Mrs Whittle had misunderstood her when they said that she was asking them not to report the incident. She said that she had only wanted them to wait before doing so in order to clarify the facts with Mrs Guppy.
- The claimant was asked if there was any witnesses whom she wanted the investigating team to interview. Mr Chaudhary suggested "the lead nurse" who had given Mr Mills the relevant information. As a result of that request, the investigation team subsequently interviewed Mrs Eccles and Mrs Bateman. The claimant asked for Mr Mills to be interviewed and this was done subsequently. The claimant suggested no further names.
The claimant's written comments
- After the meeting, the claimant submitted detailed written comments to the investigation team on the statements of Mrs Guppy, Mrs Whittle and Mrs Mottershead. In those comments, she said that, during the operation list, she was fully occupied in talking to patients, administering local anaesthetics, performing the required surgical procedures and writing up her notes. She was not therefore in a position to watch what Mrs Guppy was doing. In any event she had no doubt about Mrs Guppy's professional competence and therefore no reason to watch her. She suggested that Mr Sadiq would be able to confirm that she was not the sort of practitioner who would use non-sterile equipment on patients.
- In her written comments, the claimant also stated that the accounts given by Mrs Guppy (i.e. that the claimant had instructed her to clean scissors for re-use and had seen her doing so), by Mrs Whittle (i.e. that the claimant had asked her to tell Mrs Guppy to say that there had been enough sterile scissors to complete the list) and by Mrs Whittle and Mrs Mottershead (i.e. that the claimant had repeatedly told them that, if asked, they should say that the claimant had been unaware that unsterile scissors had been re-used) were all false.
Mrs Guppy's investigatory meeting on 30 June
- Mrs Guppy also attended an investigatory meeting on 30 June. She submitted an additional one-page statement dated 29 June. At the meeting. Mrs Guppy explained how she had come to clean the scissors, saying:
"I was over ruled by [the claimant]. [The claimant] said we needed some scissors and I said we only have one pair which we had used. [The claimant] told me those scissors needed to be cleaned. I was horrified at this request and I pointed out the normal practice".
- Mrs Guppy told the investigation team that the claimant had seen her place the used scissors on a blue tray for sterilisation and, when no further scissors were available, had asked her to clean them. The claimant had then seen her take the scissors out of the tray and clean them. She described how she had offered her own pair of scissors which she carried around in her pocket and which were blunt and "not ideal". Mrs Guppy said that she had never seen nurses cleaning scissors before they were sent for sterilisation.
- In subsequent written comments dated 21 September, Mrs Guppy denied that she had instructed Mrs Whittle to clean the scissors. She said that she had seen Mrs Whittle cleaning the scissors and had assumed that she was doing so on her own initiative following the claimant's earlier instruction that the scissors should be cleaned.
Mrs Whittle's investigatory meeting on 30 June
- Mrs Whittle's investigatory meeting also took place on 30 June. Mrs Whittle told the investigation team that she had opened a pack of sterile scissors and tipped them onto the tray in the sterile area. They had been used. She then heard the claimant ask for scissors. However, she was occupied on other tasks and was not aware at that stage that Mrs Guppy had cleaned the scissors for re-use. Later, she saw Mrs Guppy finish off cleaning a pair of scissors and hand them to the claimant. She then saw Mrs Guppy clean them again. She said that the claimant was there and "must have seen what was going on as there was nothing else for her to do - [the claimant] was waiting for scissors so she must have seen".
- Mrs Whittle said that she did not remember hearing Mrs Guppy being asked by the claimant to clean the scissors. She said that Mrs Guppy instructed her to clean the scissors as she had done. She said that the claimant was right next to Mrs Guppy at the time she asked Mrs Whittle to clean the scissors so that the claimant "would have known and could have pulled us up about it". When asked whether the claimant had seen her cleaning the scissors, she replied:
"I would say yes – she was waiting for the scissors so would have seen that I was cleaning them".
Mrs Whittle said that she had cleaned the scissors on only one occasion and Mrs Guppy had then wiped them. Mrs Guppy had cleaned the scissors two or three times.
- Mrs Whittle went on to say that, on 13 June, she had been unable to find a pair of sterile scissors for the claimant's use. Mrs Mottershead had told her to look in the drawer and the claimant had made a joke that they could clean them "like they did on Wednesday". Mrs Mottershead had then queried what had been done on Wednesday and Mrs Whittle had explained. She said that she had felt that cleaning the scissors was wrong but she had been instructed to do so by Mrs Guppy and the claimant and she did not feel she could question them. Later in the interview she said that, on 13 June, she had asked "Shall I clean them the same way?" and the claimant had laughed and joked about how they had had to clean the scissors on 11 June.
- When asked whether the claimant had seemed worried that Mrs Guppy would get into trouble if the matter was reported, Mrs Whittle said:
"The claimant didn't think it was fair as we were limited with equipment. [The claimant] asked me to call [Mrs Guppy] and explain that [Mrs Mottershead] knows about it and for me to get [Mrs Guppy] to say it was [the claimant] who ordered the scissors to be cleaned. [The claimant] did not want [Mrs Guppy] in trouble".
- Mrs Whittle then related how the claimant came to see Mrs Mottershead in the PCC and was very upset and anxious. She went on:
"…she wanted us to say [the claimant] didn't know the scissors were not sterile and that it was not [ the claimant's] fault and she doesn't want to get into trouble".
She went on to say that, when Mrs Bateman took Mrs Mottershead out of the room, the claimant was insisting to Mrs Whittle that she never knew about the non-sterile scissors and was asking Mrs Whittle who had blamed her.
Mrs Bateman's interview on 4 July
- Further to the requests made by the claimant at the investigatory meeting on 30 June, the investigation team arranged to interview Mrs Bateman, Mrs Eccles and Mr Mills. Mrs Bateman was interviewed on 4 July and Mrs Eccles, together with Mrs Mottershead, on 14 July. Mr Mills was on leave during the early part of July and his interview could not take place until 25 July.
- On 4 July, the investigation team (in the absence of Dr Maresh who was on leave) interviewed Mrs Bateman. She submitted an incident statement dated 3 July. Mrs Bateman related the discussions she had had with Mrs Mottershead and Mrs Whittle on 13 June and at her interview with Mrs Guppy on the same day. She told the investigation team that, when she had gone to the PCC on 13 June and had taken Mrs Mottershead out of the room, Mrs Mottershead had told her about the claimant's requests to herself and Mrs Whittle to say that she had been unaware of the use of non-sterile scissors. Mrs Bateman had then gone back to her office and told Mr Mills what was happening, whereupon he had gone to the PCC to remove the claimant. Mrs Bateman's involvement in the relevant events was confined to 13 June. As to the events of 11 June, she knew only what she had been told by others. Mrs Eccles was in the same position.
Interviews on 14 July
- On 14 July, the investigation team interviewed Mrs Mottershead and Mrs Eccles. Mrs Mottershead described how, during the operation list on 13 June, she had been "scrubbed up" while Mrs Whittle obtained the equipment necessary for each operation. The claimant had asked for scissors during an operative procedure whereupon Mrs Whittle said, "I am just going to clean these". Mrs Mottershead asked her to get a new pack of scissors.
- Mrs Mottershead described how she had waited until the patient had left and then spoke to Mrs Whittle, who explained that she had been instructed to clean scissors on 11 June. Mrs Mottershead said that the theatre was a small room and the claimant was present when this discussion took place. She was also present when Mrs Mottershead told Mrs Whittle that the practice of cleaning scissors for re-use was unacceptable. She said that the claimant took no part in the conversation. Mrs Mottershead did not remember the claimant saying at any stage that cleaning the scissors for re-use would be "extremely serious, unacceptable, dangerous and unimaginable". She said that she would have agreed with those sentiments, if voiced.
- Mrs Mottershead said that she had told Mrs Whittle that she would have to report the matter. The claimant asked her to speak to Mrs Guppy before doing so. The claimant had said that Mrs Whittle was concerned that Mrs Guppy would get into trouble and asked whether Mrs Mottershead really had to report the matter. Mrs Mottershead replied that she did. She said that Mrs Whittle had told her that the claimant had asked her to say "it was okay" and to speak to Mrs Guppy herself. Mrs Mottershead then decided not to wait to speak to Mrs Guppy but to report the matter immediately. She said that Mrs Whittle had remembered specifically that no scissors had been used on the last patient in the list of 11 June. She said that the implication was that "they" (i.e. Mrs Whittle and the claimant) could not be sure whether non-sterile scissors had been used on the other patients in the list.
- In relation to the claimant's visit to the PCC on 13 June, Mrs Mottershead said that she appeared upset when she arrived. She did not hear any conversation between the claimant and Mrs Whittle when she was out of the room with Mrs Bateman. She said that, when she returned:
"[the claimant] was repetitive and she was pulling on my sleeve and saying that if anyone asks could we say she was unaware of the scissors and that they were being cleaned?"
She said that she did not hear the claimant asking Mrs Whittle whether she (the claimant) had asked her to clean the scissors.
- Mrs Eccles told the investigation team that, on 13 June, Mrs Bateman had told her about the reported events of 11 June. Mrs Eccles had advised Mrs Bateman to speak to the staff involved in order to establish the facts. Her understanding was that Mrs Mottershead had reported that the claimant had instructed that the scissors should be cleaned and re-used. She understood that the claimant had asked Mrs Mottershead not to report the matter.
- Because of the involvement of a doctor, Mrs Eccles reported the matter to Mr Mills who said he would speak to the claimant. Meanwhile, Mrs Bateman interviewed Mrs Guppy. Mrs Eccles and Mr Mills agreed to meet to pool their information and discuss how to manage the situation. Before they could do so, she (Mrs Eccles) was informed by Mrs Bateman that the claimant had gone to the PCC and was "questioning [Mrs Whittle] and [Mrs Mottershead] about why they had escalated the matter". Shortly afterwards Mr Mills came into the room and Mrs Eccles told him that Mrs Bateman had said that the claimant had been "intimidating the staff". Mrs Eccles said that she and Mr Mills went to the PCC together where they found the claimant with Mrs Whittle and Mrs Mottershead who was in tears. Mr Mills asked the claimant to leave and he went with her. Mrs Mottershead told Mrs Eccles that the claimant had asked her why she had reported the matter and had said that, as a result, she (the claimant) was in trouble.
Mr Mills' interview on 25 July
- On 25 July, the investigation team interviewed Mr Mills. He described how, on 13 June, Mrs Eccles had reported to him the events of 11 June. He met Mrs Eccles and Mrs Bateman and they decided to find out how many patients had potentially been involved. He spoke to the claimant and told her that it had been reported that there had been "multiple use of instruments" on 11 June. He said that he did not specifically tell her that an investigation was under way but observed it would have been "foolish" to think that she did not know that. He then returned to Mrs Eccles to discuss the risks to patients.
- Mr Mills said that, as he left Mrs Eccles' office, by chance, he saw the claimant talking to two members of the nursing staff whom he assumed had been involved in the relevant incident. The claimant appeared agitated. He asked her to stop speaking and told her that it was inappropriate for her to be there. She said that she did not know she was doing anything wrong. He explained how her actions could be construed. He said that he then informed Mrs Eccles of what had occurred.
- Mr Mills told the investigating team that, during her subsequent interview with Ms Wake and himself, the claimant said that she knew nothing about the scissors having been cleaned; she said that they were just handed to her. She had observed to him it would be "a waste of time" denying matters since there would be two persons' word against hers. He denied that, at any stage in the conversation, he had suggested that the claimant had instigated the cleaning of the scissors.
- Mr Mills said that he had only worked with the claimant in clinic. He could not comment on her surgical capabilities or her sterile procedures. He suggested to the investigation team that Mr Sadiq might be able to provide information on these matters and advised them to speak to him. He observed that an average surgeon would not know the history of the equipment used during an operative procedure. He or she was entitled to assume that equipment on the sterile trolley was sterile. He said that he had received no complaints about the claimant's conduct of surgery or clinics in the past.
Further interviews on 4 August
- Having reviewed the evidence, the investigation team noted inconsistencies - in particular between the evidence of the claimant, Mrs Guppy and Mrs Whittle. They therefore decided to re-interview the three of them. Dr Maresh said that, because of holidays taken during July, the further interviews could not be arranged until 4 August. On that date, at the beginning of each interview, the investigation team told the interviewees that there were discrepancies in the evidence they had received, such that it appeared that the investigation team may have been deliberately misled in some respects. They emphasised the need for honesty and told the three interviewees that this was their last opportunity to revisit or clarify the evidence they had given previously.
- The claimant was asked about Mrs Guppy's allegation that she had offered the claimant scissors from her own pocket on 11 June. She denied that Mrs Guppy had done that. She was asked about her position in the PCC whilst she was operating and she described where she and Mrs Guppy were standing.
- The claimant's account of the events of 13 June was essentially the same as previously. She explained that she had been shocked when Mr Mills had suggested to her that she had instructed the nursing staff to clean scissors. That was not what Mrs Whittle had said to her. She denied she had sought to influence the witnesses as to what they should say.
- Mr Chaudhary, who was present at the claimant's interview, asked whether the investigation team had been able to "narrow down" the allegation identified in Ms Adamson's letter of 19 June (see paragraph 99 above) any further. Mrs Williams replied that they had not been able to do so until they had seen other witnesses to clarify some discrepancies. Mr Chaudhary went on to complain about the fact that Mrs Mottershead and Mrs Whittle had been together on 13 June when writing their statements. He was concerned also that the fact they were both still working could potentially compromise the investigation. He referred to his concerns that they were still working whilst the claimant had been excluded from work.
- When she was interviewed on 4 August, Mrs Guppy denied that, before the beginning of the operating list on 11 June, the claimant had asked her to obtain scissors and cauteries. She said that the claimant had used one cautery and then needed more. Mrs Guppy went to the theatre twice to obtain them. At that time, the need for more scissors had not been identified. She then described how, after the first pack of sterile scissors had been used, they were placed on a blue tray for sterilising. This was the usual procedure for used instruments. She said that scissors would not be cleaned before they were sent for sterilisation.
- Mrs Guppy told the investigation team that, at a later stage, the claimant again said that she needed scissors, whereupon Mrs Guppy told her that there was only the one pair, which had already been used. She said that the claimant instructed her to clean the scissors so she took them from the blue tray and cleaned them before handing them to the claimant. She said that, at the time, she had her back to the claimant who was talking to the patient. She said that, at a later stage, Mrs Whittle cleaned the scissors and placed them on the trolley from where Mrs Guppy handed them to the claimant. She said that Mrs Whittle did that in response to another request from the claimant for scissors. She assumed that Mrs Whittle had been copying what she herself had previously done. She had seen Mrs Whittle cleaning the scissors, although the claimant may have been looking at her notes at that time.
- When interviewed on 4 August, Mrs Whittle said that, on 11 June, she did not recall hearing the claimant say anything about cleaning the scissors. The claimant had asked for scissors and, when Mrs Guppy said that there were no more, she had replied that she needed some now and did not have time for Mrs Guppy to go to the theatre to get some. Mrs Whittle did not recall Mrs Guppy offering scissors from her own pocket. She said that Mrs Guppy cleaned the scissors two or three times for re-use. In the middle of another surgical procedure, Mrs Guppy instructed her to clean the scissors. She observed that the claimant must have heard the request since she could not carry on with the procedure without the scissors; both the claimant and Mrs Guppy were waiting for them. She described the position in the PCC of the claimant and Mrs Guppy whilst she was cleaning the scissors.
- Mrs Whittle described how, on 13 June, the claimant had asked for scissors. Mrs Whittle had looked in a drawer but could not find any. She asked Mrs Mottershead and the claimant, "Shall I clean them like I did on Wednesday?" She said that both Mrs Mottershead and the claimant would have heard what she said. Mrs Mottershead asked her what had happened and she explained. The claimant was there and "made a laugh about it". She did not seem surprised at what Mrs Whittle had said.
- Mrs Whittle then described how, later in the day, the claimant came into the PCC when she and Mrs Mottershead were writing their statements. She asked Mrs Whittle if she had said that the claimant had asked her to clean the scissors, as had apparently been reported to Mr Mills. She said that the claimant was emphasising that she had known nothing about the scissors being cleaned.
The investigation team's deliberations
- Dr Maresh said that, after the interviews on 4 August, Mrs Williams had a period of leave. It was not until the end of August that the investigation team were able to meet. They met on two occasions (his log records meetings on 27 August and 12 September) to consider the evidence and to formulate their decision and the investigation report that was to form the basis for the "Management Statement of Case" used at the disciplinary hearing. Dr Maresh said that their task was to consider whether there was credible evidence of possible misconduct by the claimant which should be considered at a disciplinary hearing.
- Dr Maresh's evidence was that the members of the investigation team were well aware of the inconsistencies between the evidence of the various witnesses. He said that they considered those inconsistencies carefully and that they took into account the evidence from Mr Mills about the claimant's competence and previous good record, together with the fact that the operation list on 11 June had been carried out in an unfamiliar location and in less than ideal circumstances. Nevertheless, the evidence of Mrs Mottershead, Mrs Whittle and Mrs Guppy suggested that the claimant had knowingly used non-sterile equipment and also that she had sought to interfere with the investigation. The investigation team concluded that they were quite satisfied that there was a case for her to answer. They came to similar conclusions in the cases of Mrs Guppy and Mrs Whittle.
- Dr Maresh provided a brief interim report in writing to Mr Pearson, dated 15 September, setting out his conclusions in relation to the claimant. On 18 September, those conclusions were reported to the chief executive and then by the chief executive, to Ms Somerset. The claimant was informed of the decision to proceed to a disciplinary hearing by a letter from Mr Pearson dated 19 September.
Mrs Mottershead's further statement dated 19 September
- At the request of Ms Adamson, Mrs Mottershead provided a further written statement dated 19 September to the investigation team. The account she gave did not differ from that given previously in any material particular.
The alleged breaches relating to investigation
- The Particulars of Claim set out a number of allegations of breach of contract in relation to the investigation:
(vi) (at paragraph 30(g) of the Particulars of Claim)
Failure to undertake a root cause analysis, contrary to paragraph 8.5.3 of the Trust Procedure.
- Paragraph 8.5.3 of the Trust Procedure provides:
"The Case Manager should not automatically attribute an incident to the actions, failings or acts of an individual alone. Root cause analyses of adverse events should be conducted as these frequently show causes are more broadly based and can be attributed to systems or organisational failures or demonstrate that they are untoward outcomes which could not have been predicted and are not the result of any individual or systems failure. Each will require appropriate investigation and remedial actions".
- The claimant contended that the effect of paragraph 8.5.3 was to create a contractual obligation to carry out a root cause analysis (RCA) before the start of any investigation into possible misconduct on the part of a practitioner. A RCA is defined in the documents as "a structured approach to the investigation of an incident, which supports the analysis of systems rather than focusing on individuals". It is aimed at identifying solutions to the underlying problems resulting in the adverse incident and to use the incident as a means of improving systems.
- The Trust undertook a RCA into the incident on 11 June. The RCA examined such matters as the training, assessment and competence of nursing, support and non-consultant medical staff, the need to check in advance that sufficient sterile instruments were available before surgery, the possibility of using disposable scissors, the agreement and implementation of infection control standards for minor surgery and the need for a full environmental risk assessment to be undertaken before a service was relocated to an alternative area. However, the RCA was not undertaken at an early stage and it may have been completed as late as December 2009.
- The claimant contended that the RCA should have been undertaken much earlier. In support of that contention, she relied on the NCAS letter of 2 July, which stated, "the Trust should conduct a root cause analysis as to what happened".
- The Trust denied that paragraph 8.5.3 conferred any contractual rights on an individual practitioner. It contended that the paragraph constitutes an administrative provision designed to improve hospital practices. In any event, it submitted that there was no basis for the contention that the RCA must precede an investigation into the conduct of an individual practitioner.
Discussion and conclusions: (vi)
- Paragraph 8.5 of the Trust Procedure is entitled "Identifying if there is a problem". It deals with the approach to be adopted by a Case Manager when deciding what is the nature of a problem affecting a practitioner, how serious the problem is and whether or not formal disciplinary action (as opposed to informal resolution) is likely to be necessary. As its title suggests, the paragraph is advisory in nature and is not of sufficient clarity or certainty to constitute a contractual obligation enforceable by an individual practitioner. In any event, the paragraph does not require that a RCA should be carried out at an early stage in every case.
- The processes and purpose of a RCA are very different from those of an investigation of potential misconduct. The circumstances in which adverse incidents occur vary widely. In some cases – particularly when the incident occurred in circumstances which are medically complex – it may be appropriate to conduct a RCA in order to form a preliminary view as to whether there may have been any misconduct or poor performance on the part of individual practitioners or whether the incident can properly be attributed to defective systems. In other cases, it may be possible to form a preliminary view without carrying out a RCA. Indeed, the conduct of a RCA may hinder the investigation.
- In this case, it was clear on 13 June that non-sterile scissors had been used by the claimant on 11 June for a number of surgical procedures. The only issue in her case was whether she had used them knowingly. If she had used them knowingly then - as she herself agreed - that would have been an entirely unacceptable practice, whatever the background to the incident. If, on the other hand, she had used them unwittingly, she could not be blamed. A RCA would not have assisted in resolving the issue of knowledge. Indeed, since the RCA may well have involved interviewing the claimant, Mrs Guppy and Mrs Whittle, it may have prejudiced any investigation which had taken place subsequently.
- Even had the RCA report which was eventually completed been available before or during the investigation process, I am quite satisfied that it would not have affected either the decision to investigate or the outcome of the investigation. The claimant did not suggest any way in which it would or could have done. As Dr Maresh said in evidence, he was aware of the fact that the claimant had been working in an area not generally used for surgery and that it was said that there had been inadequate equipment readily to hand. The investigation team took those matters into account. However, whatever the background, it could not be such as to justify a doctor knowingly using non-sterile equipment for a surgical procedure.
(vii) (at paragraph 30(h), (m)(vii) and (n) of the Particulars of Claim)
Failure, prior to scheduling the investigatory meeting on 13 June, to disclose to the claimant the name of the Investigating Manager, the specific allegation against her and/or any relevant correspondence relevant to the case, together with a list of people to be interviewed and failure, prior to the investigatory meetings, to give proper disclosure of documents, contrary to paragraph 11.2 and 11.3.2 of the Trust Procedure.
- Paragraph 11.2 of the Trust Procedure provides that, as soon as it has been decided that an investigation is to be undertaken, the Case Manager should write to the practitioner stating, inter alia, the name of the Investigating Manager and details of the specific allegation or concerns.
- Paragraph 11.3.2 provides that the practitioner must be given the opportunity to see "any correspondence relating to the case", together with a list of people whom the Investigating Manager will interview.
- The claimant did not pursue the allegation relating to the failure to identify the Investigating Manager. That was understandable since Dr Maresh was named in the letter from Ms Adamson dated 19 June and his role in leading the investigation was confirmed in an email of the same date. Nor did she pursue the complaint about the failure to provide a list of witnesses, it being apparent that she had been provided with information about potential witnesses at the investigatory meeting on 30 June. However, she contended that the letter of 19 June failed to inform her of the specific allegations against her. First, she said that the allegation contained in the letter (as to which see paragraph 99 above) was unspecific and did not make clear what precisely was being alleged against her. In particular, it did not make clear whether it was being alleged that she had knowingly used non-sterile equipment. Second, the letter did not inform her of the allegation that she had attempted to influence the accounts given by witnesses. Consequently, she claimed, she was unaware that she was facing such an allegation.
- The claimant contended that the phrase "any correspondence relating to the case" in paragraph 11.3.2 was intended to include witness statements, records of interviews with witnesses and any other documents in the possession of, or generated by, the investigation team. She complained that the investigation team's failure to disclose to her the witness statements in their possession prior to her two investigatory interviews was in breach of the Trust's obligation under paragraph 11.3.2.
- The Trust accepted that it had been under an obligation to provide the information set out in paragraph 11.2. Mr Hillier argued that it had been appropriate for the allegation about the use of non-sterile instruments to be couched in neutral terms at that stage. The purpose of the investigation was to explore the parts played by the three individuals who had been involved in the incident on 11 June and the responsibility, if any, which each of them bore for the incident. He offered no explanation for the failure to inform the claimant of the allegation of interference with potential witnesses.
- The Trust argued that the word "correspondence" in paragraph 11.3.2 means precisely that and no more. Mr Hillier contrasted the term "correspondence" with the words used in paragraph 18.104.22.168 of the Trust Procedure which requires disclosure to the practitioner before a disciplinary hearing of "copies of all statements and/or written material gathered during the investigation". He submitted that the Trust Procedure made a clear distinction between the disclosure which the Trust is obliged to give during the course of the investigation and the more extensive disclosure which is required in the event that a disciplinary hearing takes place.
Discussion and conclusions : (vii)
- I do not accept that there was any breach of the Trust's obligation to inform the claimant of the substantive allegation against her. Pending an investigation into the actions of the three people involved in the incident, I consider that it was perfectly permissible, indeed appropriate, for the allegation to be expressed in a neutral way.
- There may be occasions when potential misconduct additional to that originally identified comes to light in the course of an investigation. In those circumstances, the fact that the new allegation had not been identified to the claimant at the outset would not constitute a breach of the employer's responsibility; paragraph 11.2 could require it only to inform the claimant of allegations that were known to the employer at the time. However, that was not the case here. The allegation of interference had been known to the Trust from an early stage and was an important – indeed the determinative – factor in the decision to exclude the claimant. The investigation was intended to – and did - investigate that allegation. It should have been identified to the claimant in the letter of 19 June. The failure to do so constituted a breach by the Trust of its obligation under paragraph 11.2.
- The difference between the categories of documents referred to in paragraph 11.3.2 and paragraph 13.1.22 makes clear that the extent of disclosure to be given to a practitioner in advance of a disciplinary hearing is intended to be very much greater than that to be given in the course of the preceding investigation. There are good reasons for that. As Dr Maresh pointed out, the investigation might have resulted in a decision not to pursue the allegations against the claimant and/or Mrs Guppy and Mrs Whittle. It could well be damaging for members of staff who may be required to work together in the future to be permitted to read details of allegations made one against the other. He took the view that information (including information given by the claimant) provided to the investigation team should be kept confidential unless and until the investigation had been concluded and a decision taken to proceed to a disciplinary hearing. I consider that he was justified in so doing and that his action gave rise to no breach of the Trust's obligation under paragraph 11.3.2.
- In the event, however, Dr Maresh responded to requests by Mr Chaudhary before the meeting of 30 June by disclosing the incident statement forms completed by Mrs Whittle, Mrs Mottershead and Mrs Guppy, together with the incident report form completed by Mrs Mottershead. In doing so, he went further than required by the Trust Procedure; in my judgment, he was under no obligation to do more.
(viii) (at paragraph 30(i) of the Particulars of Claim)
Failure to disclose details of the evidence against Mrs Whittle and Mrs Guppy and any findings made against them, contrary to paragraph 11.3.2 of the Trust Procedure.
- The claimant's case is that the investigation team should have disclosed to her details of the evidence relating to the allegations against Mrs Guppy and Mrs Whittle together with any findings made against them.
- The Trust repeats its contention that there was no obligation under paragraph 11.3.2 upon it to do so.
Discussion and conclusions: (viii)
- I accept the Trust's contention for the same reasons as set out in respect of allegation (vii) above.
(ix) (at paragraph 30(j) of the Particulars of Claim)
Failure to obtain independent professional advice contrary to paragraph 11.3.2 of the Trust Procedure.
- The relevant provisions of paragraph of 11.3.2 of the Trust Procedure state:
"Where the alleged misconduct being investigated relates to matters of a professional nature or where an investigation identifies issues of professional conduct, the Investigating Manager must obtain appropriate professional advice".
- The claimant's case was that paragraph 11.3.2 imposed a clear obligation on Dr Maresh to obtain an opinion from an independent expert. Such an expert would, it was said, have dealt with issues such as the extent to which a surgeon is reliant on the nursing staff for the provision of the necessary equipment, appropriately sterile, during a surgical procedure. He or she would have assisted the investigation team in evaluating the unlikelihood of an experienced surgeon making a basic error of judgment by knowingly using non-sterile instruments. It was argued that the failure to obtain such advice denied the claimant the opportunity of being exonerated at the investigation stage.
- The Trust argued that paragraph 11.3.2 required Dr Maresh only to obtain medical advice if he considered that it was "appropriate" to do so. His evidence was that he did not believe that such advice was either necessary or appropriate. As a practising consultant himself (albeit of a different specialty from the claimant), he was entirely familiar with the surgical standards for infection control. The use of non-sterile equipment would be such a basic breach of those standards that no expert advice was necessary.
Discussion and conclusions: (ix)
- I do not consider that paragraph 11.3.2 imposed an obligation on the Trust to obtain the opinion of an independent expert in every case of professional misconduct; it did so only if such advice would be "appropriate". I consider that Dr Maresh was fully entitled to come to the view that it was not appropriate in the claimant's case. He was well aware of acceptable standards of hygiene for surgical procedures. He would be well aware also of the extent to which a surgeon depends on the nursing staff assisting him. As to whether or not an experienced surgeon was likely to make such an error, that was not a matter for an expert. Evidence from a practitioner with knowledge of the claimant's work might establish whether she was generally careful and conscientious or whether she was habitually slapdash. That might be of some value. However, even careful individuals may succumb to the temptation to cut corners on occasion. The question was whether that was what had happened in the claimant's case.
Allegations of lack of fairness in the investigation process
- In addition to specific allegations of breach of its express contractual obligations, the claimant alleged that the Trust conducted the investigation unfairly, in breach of the implied term of trust and confidence. At paragraph 30(m)(i)-(vi) and (n) of the Particulars of Claim, the claimant alleged a failure, on the part of the investigation team, to have regard to a number of matters, together with a failure properly to inform the claimant of and to investigate all the allegations against the claimant or to verify the facts so that the allegations could be shown to be true or false. This allegation formed part of a general allegation that the investigation was biased and unfair from the start.
- Both the claimant and Mr Chaudhary insisted that they did not know what allegations the claimant was facing. The allegation contained in the letter of 19 June was, they said, neutral, and entirely unhelpful. They said that, because the claimant did not know what allegations were being made against her and she was not permitted to see all documents gathered by the investigation team before being interviewed, she was unable to put her case during the investigation process.
- It was contended on the claimant's behalf that the investigation team failed to have regard to the unlikelihood that she had departed from standard surgical practice. They had failed to obtain evidence about – or have regard to – her professional practice and standing. It was argued that the investigation team had failed to establish who was responsible for the fact that the PCC was inadequately equipped and failed to have regard to the fact that the claimant had not been responsible for ensuring that the necessary equipment was obtained. It was said that the investigation team had incorrectly assumed that the claimant had overall responsibility for the actions of the nurses whereas that was not the case and that they had failed to have regard to the fact that it was more likely that Mrs Guppy, and not the claimant, had departed from established surgical practice. Had these matters been properly taken into account, it is said, the investigation would or might have exonerated the claimant.
- The claimant also complained that the investigation team did not obtain a statement from Mr Sadiq as Mr Mills had advised, or a report from an independent expert. She was adamant that, if the opinion of such an expert had been sought, she would have been completely exonerated from blame.
- Mr Chaudhary criticised the investigation for not having "got to the bottom" of the inconsistencies in the witness evidence and decided which witnesses were truthful and reliable and which were not. His evidence was that, if the investigating team had done their job properly, they may well have found that there was no case for the claimant to answer. As it was, he insisted that the investigation process had been wholly unfair.
- The Trust's case was that there was no failure on the part of the investigating team to make all necessary enquiries and to take all relevant matters into account. It contended that the claimant had misunderstood the function of the investigation. It was not the job of the investigation team to resolve the inconsistencies between the various witnesses unless those inconsistencies were so striking as to render the witnesses' evidence plainly incapable of belief. Their task had been to decide whether there was a case to answer. Mr Hillier submitted that it was clear from Dr Maresh's evidence that he had given very careful consideration to the evidence and the inconsistencies. The investigation team had the evidence of Mr Mills who spoke highly of the claimant and indicated that there had been no previous concerns about her practice. Mr Hillier submitted that the conduct of the investigation could not be faulted.
Discussion and conclusions
- I have already accepted that the Trust failed formally to inform the claimant of one of the allegations against her which was to be investigated. I have to consider whether that failure had any effect on the conduct of the investigation such as to render the investigation unfair.
- In response to the request contained in the letter of 19 June, the claimant provided a very detailed witness statement covering the events of 11 and 13 June. In it, she described her conversations with Mrs Mottershead and Mrs Whittle on 13 June. She stated in terms that she had not tried to hinder, interfere with or influence the Trust's investigation. She said that she believed that some of her actions might have been misinterpreted by other staff and perhaps even by the Trust management. At the meeting on 30 June, she was asked in detail about her conversations on 13 June with Mrs Mottershead and Mrs Whittle. In her written comments on the statements of Mrs Mottershead, Mrs Guppy and Mrs Whittle, submitted after the meeting, she dealt with the accounts of the conversations contained in the statements of Mrs Mottershead and Mrs Whittle. She was asked about the conversations again at the investigatory meeting on 4 August.
- In short, the claimant was given – and took – every opportunity to respond to the allegations of attempted interference. That being the case, I am satisfied that the absence of any specific allegation of interference in the letter of 19 June caused her no prejudice and was not unfair. I reject her evidence and that of Mr Chaudhary that they were in any real doubt as to the case she had to meet. I reject also the suggestion that it was unfair for the investigation team not to have disclosed all the witness evidence they had gathered. It is clear from the notes of her interviews that the relevant matters were put to her and she had an opportunity of dealing with them. What the investigation team was seeking from her was a factual account of the events that had occurred, not her submissions on the inconsistencies of the other witnesses to those events.
- I found Dr Maresh a most impressive witness. I am completely satisfied that he approached the investigation in a fair and impartial manner. It is clear from the documents that the investigation team conducted careful interviews with the potential witnesses, considered their statements and additional comments and noted the inconsistencies between them. The interviews with the claimant, Mrs Guppy and Mrs Whittle held on 4 August constituted an attempt to resolve the inconsistencies.
- I am quite satisfied that the investigation team did not fall into the trap of concluding that the claimant bore any responsibility for equipping the PCC or for supervising the nurses' work. Both Ms Adamson and Dr Maresh would have been well aware of the differing functions of the two professions. As to the failure to obtain evidence from Mr Sadiq, Dr Maresh's evidence, which I accept, is that he did not accede to the suggestion made by Mr Mills that he should be interviewed because of the further delay that might be caused thereby. In any event, there had been no suggestion of any previous concerns about the claimant's practice and it was obvious that Mr Mills had "implicit trust" in her. Dr Maresh did not consider that evidence from Mr Sadiq would add anything to the investigation. He treated the claimant as an experienced practitioner of good standing. However, whatever her past record, there remained the allegations that she had knowingly used non-sterile equipment on 11 June.
- The purpose of the investigation was to establish whether there was a case of misconduct against the claimant and the two nursing staff, such that a disciplinary hearing should be convened. It was not for the investigation team to reach a decision as to which witnesses were reliable and/or truthful and which were not. If there was evidence capable of belief which suggested that the claimant had been guilty of misconduct, it was the investigation team's duty to recommend that the case should go forward to a hearing. The claimant and Mr Chaudhary failed to understand or appreciate that. At one point in his evidence, Mr Chaudhary asserted that the investigation team should have "weeded out" the inconsistencies between the witnesses. That was not their function. It was for a disciplinary panel, having seen and heard the various witnesses, to decide where the truth lay.
- In the circumstances, I do not find that there was any unfairness in the investigation process.
The effect of any breaches in relation to investigation
- The claimant contended that the effect of the alleged breaches, or any of them, was that the claimant was deprived of the opportunity of being exonerated at the investigation stage and that the investigation team came to the conclusion that there was a case to answer in circumstances where it should or might otherwise not have done so. The Trust's case is that, given the evidence of the various witnesses, it was inevitable that the recommendation of the investigation team would have been that there was a case for the claimant to answer.
- I have already found that the failure by the Trust formally to inform the claimant of the allegation of interference being investigated had no effect on the conduct of the investigation or the claimant's ability to participate therein. The crucial evidence against the claimant was that of Mrs Whittle, Mrs Guppy and (to a lesser extent) Mrs Mottershead. Their evidence, if true, established that the claimant had knowingly used non-sterile scissors, either at her own instigation or by tacitly condoning the actions of Mrs Guppy and Mrs Whittle. The evidence of Mrs Mottershead and Mrs Whittle, if correct, suggested that the claimant had sought to influence their evidence and that of Mrs Guppy. I accept the Trust's contention that, given the evidence of Mrs Mottershead, Mrs Guppy and Mrs Whittle, it was inevitable that the investigation team would conclude that the case should proceed to a disciplinary hearing. Their evidence constituted a clear prima facie case against the claimant which could only be resolved by a disciplinary hearing. Even if Mr Sadiq had provided evidence in accordance with that which he eventually gave at the disciplinary hearing, it would not have affected the position. In the circumstances, neither the breach which I have found occurred – nor any of the other alleged breaches – would have resulted in any difference in the outcome and, as a consequence, there can have been no loss to the claimant.
The disciplinary hearing
- I turn now to consider the conduct of the claimant's disciplinary hearing.
Notice of the hearing
- Mr Pearson's letter to the claimant dated 19 September referred to the allegation which had previously been identified in Ms Adamson's letter of 19 June: see paragraph 99 of this judgment. It informed the claimant that the investigation was complete and had concluded that there was a case to answer. She was told that there would be a disciplinary hearing and that she would be notified of the arrangements and sent a copy of the investigation report in due course. The letter stated that it was possible that the hearing would not take place until October, thereby suggesting that it might be sooner.
- The evidence of the claimant and Mr Chaudhary was that Mr Chaudhary was abroad at the time the claimant received the letter of 19 September and did not return to the UK until 2 October. The claimant did not communicate this fact to the Trust or make any other response to the letter. Nor, it appears, did she take any steps to prepare herself for the hearing.
- A further letter, dated 6 October, was sent by the Trust to the claimant. The letter was signed by Mr James Hill, who was to chair the Panel at the disciplinary hearing. Mr Hill is a consultant surgeon and associate clinical head of division for surgery at the Trust. The letter was drafted by a member of the Trust's HR Department. It stated that the claimant was required to attend a disciplinary hearing to consider the allegation that:
"Equipment was used during a surgical procedure that had not been correctly decontaminated and sterilised in accordance with Trust Policy and Infection Control Policies, putting patients and staff at risk".
- The letter went on to say that the Panel hearing her case would consist of Mr Hill, Mr Anthony Middleton (acting divisional director of MREH), Ms Wake, Mrs Helen Cameron (assistant director of nursing) and Mr Mark Batterbury (a consultant ophthalmic surgeon, employed by another NHS Trust).
- The letter also stated that Mrs Mottershead, Mrs Bateman, Mr Mills, Mrs Guppy would be required to attend as witnesses and that Mrs Eccles would be on stand by. It warned the claimant that the allegation was a serious one which might result in her dismissal. It stated that, if she wished to provide further evidence in support of her case, she should do so not later than two days before the hearing. The letter further requested that, if she wished to call witnesses to support her case, she should notify Mr Hill of their names so that, if they were employed by the Trust, he could take steps to ensure that they were released from duty to attend.
- Enclosed with the letter was a 10-page investigation report (entitled "Management Statement of Case"), together with about 130 pages of statements, interview records and other material. There were also copies of two documents, one published by the General Medical Council (GMC) and the other by the Royal College of Surgeons. Approximately half of the 130 pages of investigation documents consisted of material provided by the claimant herself and records of interviews with her, together with copies of the incident statements and incident report form with which she had been provided before the meeting on 30 June. She had not previously seen the remainder of the documents.
- The Management Statement of Case set out the background to the events of 11 and 13 June. It then proceeded to enumerate 14 "specific findings" against the claimant. Those findings included the following:
"4. [The claimant] insists that she was unaware until 13 June that there was any issue with the supply of sterile scissors on 11 June, yet given the evidence from the nursing staff and the geography/environment of the PCC room, the reasonable belief is that [the claimant] must have been aware and so complicit in the events.
- It is believed from [Mrs Guppy's] evidence that [the claimant] instructed [Mrs Guppy] to clean scissors which [the claimant] knew had already been used on a previous patient.
- It is believed that [the claimant] attempted to avoid the matter being incident reported, instead seeking to get information from [Mrs Guppy] via [Mrs Whittle].
- [The claimant's] approach to [Mrs Whittle] and [Mrs Mottershead] on 13 June was so insistent and inappropriate, it was distressing to the point of being intimidatory.
- It is believed on the balance of evidence that on 13 June, [the claimant] asked other staff to make false statements to senior managers regarding the events of 11 June in an attempted "cover-up"".
- The Trust's letter and enclosures were sent to the claimant by post on Monday, 6 October. She received them the following day. The letter informed her that the disciplinary hearing was to be held on Tuesday, 14 October. The disciplinary hearings for Mrs Guppy and Mrs Whittle had been arranged (although this was not known to the claimant at the time) for Wednesday, 15 October, before the same Panel. Mrs Guppy and Mrs Whittle were each sent a letter similar to that received by the claimant, together with the investigation report in their own case and the same accompanying documents as those sent to the claimant.
Requests for an adjournment
- On receipt of the notice of the disciplinary hearing, the claimant instructed her current solicitors, Linder Myers, who wrote to the Trust on Wednesday, 8 October, indicating that they had concerns about Trust's handling of the investigation and disciplinary processes. They stated that they were seeking counsel's advice and may have to apply for the disciplinary hearing to be adjourned or stayed. In the event, no step was taken to commence legal proceedings (e.g. for an injunction) at that stage and no stay of the hearing was sought.
- In the late evening of Thursday, 9 October, Mr Chaudhary emailed a letter to Mr Hill on the claimant's behalf. He complained that the claimant had been given inadequate notice of the hearing. He requested an adjournment of "at least a fortnight" to enable the claimant to prepare her case. He objected to the inclusion of Ms Wake on the Panel because of her previous involvement in the claimant's case. He expressed surprise that Mrs Whittle's name did not appear amongst the names of the witnesses who were to attend the hearing.
- The letter contained a list of 11 witnesses whom the claimant wished to call to give evidence at the disciplinary hearing. Seven of those potential witnesses were consultant ophthalmic surgeons (including Mr Sadiq, Mr Zaidi and Mr Jones); one was a registrar at MREH and two were nurses. The other potential witness named was Mr Pearson, who, it was said, would be called to give evidence unless the Trust gave full disclosure of documents. Mr Chaudhary asked for facilities to meet Mr Mills and six of the witnesses to be called on the claimant's behalf in advance of the hearing in order to obtain statements from them.
- Mr Chaudhary complained that the Trust's disclosure of documents was incomplete. He requested copies of the RCA report (which had probably not been completed by that time), the preliminary report on the basis of which the Case Manager had decided to exclude the claimant (there was no such report in writing), the Trust's correspondence with NCAS, all written communications between Mr Pearson and Dr Maresh and between Mr Pearson and Ms Somerset, together with any other records of correspondence relating to the claimant's case.
- Mr Hill replied to Mr Chaudhary on the afternoon of Monday, 13 October by a letter which had been drafted by Ms Wake. In it, he said that the notice of the disciplinary hearing complied with the Trust Procedure and that the hearing would proceed. He explained that Ms Wake would be acting as secretary to the Panel in an advisory capacity only and would not be taking part in the decision-making process. He stated that, in any event, she had been involved only in the exclusion process, not in the investigation. He stated that all relevant documents had been disclosed and that Mrs Whittle would be attending the hearing. As to the witness evidence which the claimant sought to adduce, Mr Hill said that witnesses could be called to give oral evidence only if they had actually witnessed events on 11 and/or 13 June. However, the Panel would consider written statements from character witnesses.
- Later on 13 October, Linder Myers wrote to the chief executive of the Trust, renewing the claimant's request for an adjournment. The main complaints set out in the letter can be summarised as follows:
* the claimant had been given short notice of the hearing Ms Wake should not be permitted to act as secretary to the Panel * Mr Zaidi, whom the claimant wished to call as a witness, would not be available on 14 October * the claimant had not been given time to contact potential witnesses or obtain testimonials from colleagues * certain documentation (including notes of Mrs Guppy's interview by Mrs Bateman on 13 June and information relating to the decision to suspend Mrs Guppy) had not been disclosed.
- Linder Myers also protested about the inclusion in the bundle of documents for the disciplinary hearing of the statements of Mrs Bateman, Mrs Eccles and Mr Mills (all of which contained evidence of what they had been told by others) on the grounds that it constituted hearsay prejudicial to the claimant. They requested that, if the hearing were to go ahead, Mr Sadiq should be made available to give evidence on the claimant's behalf. Linder Myers' letter was passed to Mr Hill to be dealt with at the beginning of the disciplinary hearing.
The hearing: preliminary matters
- The hearing began at 9 am on 14 October and finished at 6.50 pm. I have seen a manuscript note of the hearing taken by a member of the Trust staff, together with a typed version which (with a few slight alterations) is agreed to represent an accurate transcription of the manuscript version. There is also a note said to have been prepared a few days after the hearing by Mr Chaudhary on the basis of his notes made at the hearing and his recollection of what took place. He told me that he had found the document recently on his computer. Insofar as the two sets of notes differ on any point, in general I prefer the note produced by the Trust. It was made contemporaneously and is therefore more likely to be accurate. Furthermore, having heard Mr Chaudhary's evidence, I cannot be satisfied that he will have fully understood and/or accurately recorded all the various issues raised.
- At the outset of the hearing, there was some discussion about the points raised in Linder Myers' second letter. Mr Chaudhary submitted that the claimant would be prejudiced if Mr Sadiq was not able to give evidence at the hearing. He raised objections to Ms Wake's involvement in the disciplinary hearing, as well as that of another Panel member. He objected to all the evidence relating to the events that had occurred on 13 June. Mr Hill consulted with his fellow Panel members, then rejected the request for an adjournment. He stated that Ms Wake was present only in an advisory capacity and that the other Panel member about whom objections had been raised had played no part in the investigation. He stated that the Panel considered that the evidence about the events of 13 June was very relevant to the case. He said that Mr Sadiq would be made available to give evidence.
- There was then some discussion about the part to be played by Mr Chaudhary. The claimant requested that Mr Chaudhary should be allowed to answer any questions put to her. She said that she was not well and wanted him to speak for her. The Panel required her to respond to questions put to her. It is clear from the note of the hearing and from his evidence that Mr Chaudhary mistakenly believed that the Panel was seeking to prevent him from asking questions on the claimant's behalf. It is quite clear that that was not the position, a conclusion that is borne out by the fact that he was permitted to question witnesses and to address the Panel. Mr Chaudhary's misunderstanding of the situation resulted in him raising unnecessary objections to the way the Panel was proceeding.
- After Dr Maresh had set out the contents of the investigation report, the claimant and Mr Chaudhary raised a number of matters. The claimant complained that her statement had not been taken into account by the investigation team. Mr Chaudhary complained that no independent professional advice had been sought. He questioned the roles of Mr Pearson and Dr Maresh in the decision not to obtain such advice. He asked why Dr Maresh had not interviewed Mrs Bateman. He suggested that Mrs Guppy and Mrs Whittle appeared to be "in the clear". He demanded disclosure of the documents relating to the findings in their cases. He suggested that the Trust was being allowed to "suppress some findings" in relation to the proceedings against them.
The hearing: the evidence
- It is clear that these preliminaries took some time since the first witness, Mrs Bateman, was not called to give evidence until 10.50 am. Once she had confirmed the evidence contained in her statements and interviews, Mr Chaudhary was permitted to ask questions. In doing so he sought to address the inconsistencies between the account given by Mrs Bateman of what Mrs Mottershead and Mrs Guppy had said to her with statements made by them. In doing so, he persisted in asking questions such as, "Are you surprised that Mrs Mottershead didn't put this in her statement?" When Mr Hill intervened, Mr Chaudhary complained that Mrs Bateman's statement was mainly hearsay in nature. He was assured by Mr Hill that the Panel was well aware that Mrs Bateman was only reporting information that had been relayed and had no personal knowledge of the events in question.
- Mr Chaudhary was stopped by Mr Hill from asking about the suspension meeting with Mrs Guppy which Mrs Bateman had conducted on 13 June on the ground it was irrelevant to the claimant's case. At that point, Mr Chaudhary threatened to walk out of the hearing. The Panel withdrew to consider the matter. When they returned, Mr Hill confirmed that they would only permit questioning relating to the claimant's case. The hearing continued with the claimant and Mr Chaudhary still present. The claimant took over the questioning of Mrs Bateman and asked her about various aspects of her evidence.
- Mr Mills then gave evidence. Mr Chaudhary asked him questions, intended to confirm the claimant's competence and capability. Mr Mills agreed with his suggestion that a surgeon would not usually know the history of the equipment used in the course of a surgical procedure. Mr Chaudhary also sought to elicit evidence to show that the claimant would not have been aware after her first meeting with Mr Mills on 13 June that an investigation was under way. The claimant also asked questions of Mr Mills. Mrs Mottershead gave evidence. She was questioned mainly by the claimant but also by Mr Chaudhary.
- When Mrs Whittle and Mrs Guppy came to give evidence, their Trade Union representatives made clear that they had advised them not to answer any questions put by Mr Chaudhary in case it prejudiced their position. They indicated that, if Mrs Whittle and Mrs Guppy were required to submit to questioning by Mr Chaudhary, they would walk out of the hearing. After some discussion, the claimant was permitted to question both witnesses. She asked a large number of questions about the contents of their statements.
- In summary, Mrs Whittle's evidence was that it was Mrs Guppy, not the claimant, who had instructed her to clean the scissors for re-use on 11 June. She said that the claimant must have heard Mrs Guppy make the request and must have seen the cleaning taking place. She said that it was clear on 13 June that the claimant had been aware of what had happened on 11 June. Mrs Whittle was adamant that the claimant had told her to tell Mrs Guppy to inform anyone who asked that there had been enough scissors and therefore no need to clean them. She said that, when she came to the PCC, the claimant told Mrs Mottershead and Mrs Whittle to say that she had not been aware that non-sterile scissors had been used. Mrs Guppy then gave evidence and was questioned by the claimant. She repeated her previous allegation that the claimant had instructed her to clean the scissors which had already been used. She denied instructing Mrs Whittle to clean the scissors. The Trust did not seek to rely on Mrs Eccles' evidence and did not call her.
- The claimant then made a statement of her case in which she said that she had not been aware that the scissors had been cleaned before re-use on 11 June. She had been fully occupied with the surgery which she was undertaking and had not seen the cleaning taking place. She said that she had not sought at any stage to prevent the matter from being reported or to interfere with the investigation. She stressed that, after her first meeting with Mr Mills on 13 June, she had not been aware that an investigation was in progress. The claimant then answered questions from Dr Maresh and members of the Panel.
- Mr Sadiq gave evidence to the effect that, in his experience, the claimant complied with the surgical procedures he had taught her. He was confident that, if she had known that the scissors were not sterile, she would not have re-used them. He confirmed that it was the responsibility of the nursing staff to ensure that proper equipment was available. The claimant also submitted a written statement from Mr Zaidi who spoke highly of her performance at Rotherham. He described her as "meticulous in her clinical and surgical ophthalmic practice" and stated:
"I cannot believe for one moment that [the claimant] would ask for an unsterilised instrument let alone use it to operate with!"
- Dr Maresh then made brief closing submissions, indicating that the investigation team had heard nothing that altered their previous findings as set out in the investigation report.
- According to the Trust's note of the hearing, the claimant began her closing remarks by repeating her assertion that she had not been aware of the re-use of the scissors and would not have interfered in the investigation. She then went through the 14 findings of the investigation team and put her case in relation to each finding separately.
- Mr Chaudhary's note of the hearing, his evidence and that of the claimant was to the effect that he had requested the Panel to take account of written submissions he had prepared in advance. Those submissions (entitled "Defence") rehearsed the claimant's account of the events of 11 and 13 June, set out details of her exclusion from work and the exchange of correspondence in relation thereto, and also set out legal submissions relating to the appropriate standard of proof to be applied. Mr Hill did not remember the request to put in the submissions being made and there is no reference to it in the Trust's note of the hearing. Nevertheless, at trial, the Trust did not suggest that the request was not made. Mr Chaudhary's evidence was that he had suggested to the claimant that she should read the submissions aloud to the Panel but, instead, she chose to make her own closing remarks. The claimant and Mr Chaudhary stated that Mr Chaudhary had attempted to make supplementary oral submissions but was not permitted to do so. At that stage the hearing was adjourned overnight.
Deliberations and announcement of outcome
- The following day, the Panel met to deliberate on their decision. It is not clear from the Trust's note precisely when on that day the deliberations took place and, in particular, whether it was before or after they heard the evidence in the cases of Mrs Guppy and Mrs Whittle. The manuscript note at the end of the proceedings on 14 October records Mr Hill as saying:
"Meeting back in morning and time in PM to go through this".
Those words suggest that the intention was to deliberate on the claimant's case in the afternoon, after hearing the evidence relating to Mrs Guppy and Mrs Whittle.
- When asked about the timing, Mr Hill first said that he thought that the deliberations in the claimant's case might well have taken place after the hearings in relation to Mrs Guppy and Mrs Whittle. Later he said that he could not recall. Ms Wake's initial recollection was that the Panel had deliberated on the claimant's case in the morning of 15 June and that the start time of Mrs Guppy's hearing had been postponed to allow them to do so. Shortly before giving evidence, she checked her records and noted that the original start time stated in correspondence was 9 am whereas in fact Mrs Guppy's hearing had begun at 10.35 am. That supported her original recollection.
- The Trust's note records the Panel's deliberations and their decisions in relation to the 14 findings of the investigation team. The majority of the Panel (in evidence, Mr Hill disclosed that he had been the dissenter) concluded that the claimant must have been aware, because of the size and geography of the room (which they visited) and the evidence of the nursing staff, that non-sterile scissors were being used. They considered that there was insufficient evidence to establish that the claimant had instructed Mrs Guppy to clean scissors for re-use. The majority found that the claimant had knowingly used non-sterile scissors on more than one occasion. The Panel were unanimous in finding that the claimant's evidence was not reliable, that she had attempted to avoid the incident being reported, had inappropriately approached Mrs Whittle and Mrs Mottershead and had asked other staff to make false statements in an attempt to "cover up" what had happened. Their decision was announced in the afternoon of 15 June, after the disciplinary hearing in respect of Mrs Guppy and Mrs Whittle had taken place.
- By a letter dated 16 October, the claimant was informed that the Panel had found:
"… that you knowingly allowed the instrument to be used on more than one patient without the instrument being sterilised. The panel also concluded that you did attempt to interfere with the reporting and the investigation of the incident. The panel concluded that this action represented gross misconduct".
The letter informed the claimant that she was to be dismissed with immediate effect on the grounds of misconduct. Mrs Guppy was also found guilty of gross misconduct and dismissed. The Panel did not find the case against Mrs Whittle proven and therefore no disciplinary action was taken in her case. **
The alleged breaches relating to the disciplinary hearing
- The Particulars of Claim contained a number of allegations of breaches of the terms of the Trust Procedure. I shall deal with each of them separately.
*(x) (at paragraph 30(o) of the Particulars of Claim)
Failure to afford the claimant five full working days' notice of the hearing contrary to paragraph 22.214.171.124 (in fact paragraph 126.96.36.199) of the Trust Procedure.**
*278. Paragraph 188.8.131.52 provides:
"A letter containing details of the complaint/allegation, enclosing copies of all statements and/or written material gathered during the investigation, should be sent by the Manager hearing the case, to the practitioner at least five days in advance of the date set for the Disciplinary Hearing unless otherwise mutually agreed".
Paragraph 6 of the Trust Procedure makes clear that the time limits referred to therein exclude weekends and public holidays.
- The claimant's case was that, since she received the letter notifying her of the hearing with the accompanying documents on Tuesday 6 October, she was not given the requisite degree of notice. Mr Berkley argued that, in construing paragraph 184.108.40.206, I should have regard, not to when the notification was "sent", but to the time when it was received by the claimant. He submitted that any other interpretation would make no sense at all since the documents could be delayed or lost in the post, in which case the practitioner would be deprived of the benefit of the stated notice period.
- Mr Hillier contended that the terms of paragraph 220.127.116.11 were clear. They referred to the date when the notification was "sent". It had been "sent" on Monday, 5 October, more than five days in advance of the hearing. Thus, the Trust had complied with its obligation.
Discussion and conclusions: (x)
- Paragraph 18.104.22.168 is clear in its terms and specifies the date when the notification is "sent", not when it is received. It does not stipulate, as alleged in the Particulars of Claim, that the claimant is entitled to "five full working days' notice" of the hearing. It is correct, as Mr Berkley pointed out, that the provision could produce an unfortunate result if the notification were delayed. In that event, however, an application for an adjournment would no doubt be made and may well succeed. In sending the notification when it did, I do not consider that the Trust was in breach of its contractual obligation.
*(xi) (at paragraph 30(q) and (t)(ix) of the Particulars of Claim)
Rejected without proper reason the claimant's request that Ms Wake should not be involved with the disciplinary Panel and failed to ensure that the Panel was sufficiently independent of the Trust, contrary to paragraph 22.214.171.124 of the Trust Procedure.*
- Paragraph 126.96.36.199 of the Trust Procedure provides that members of the Panel hearing the presentations at the disciplinary hearing must not have had any involvement in the investigation. Apart from stipulating that the Panel must include a practitioner not employed by the employing authority, that is the only requirement set out in the Trust Procedure in relation to the composition of a Panel to hear cases of alleged misconduct. There is no reference to the independence of advisers to the Panel. This contrasts with paragraph 17.8.2 of the Trust Procedure, which deals with the composition of panels in proceedings involving a practitioner's capability. Paragraph 17.8.2 provides:
"As far as is practicable, no member of the panel or advisers to the panel should have been previously involved in carrying out the investigation".
- The claimant's case was that Ms Wake could not be regarded as independent or impartial since she had been involved in the claimant's exclusion, had communicated with NCAS about her case, had attended the weekly meetings at which Dr Maresh had reported to Mr Pearson and had been involved in dealing with her applications for disclosure and for an adjournment of the disciplinary hearing. Mr Berkley argued that it was inappropriate for her to act as an adviser to the Panel and that the Trust, in the person of Mr Hill, should have recognised this.
- The Trust's case was that Ms Wake's role at the disciplinary hearing was purely advisory; she was not part of the decision-making process. Moreover, she had not taken any part in the conduct of the investigation and thus, even if the requirements of paragraph 17.8.2 (dealing with capability proceedings) had applied, there would have been no breach of the Trust's contractual obligation.
Discussion and conclusions: (xi)
- Despite the fact that Ms Wake was described in some documents – both before and after the disciplinary hearing – as a member of the Panel, I am quite satisfied that her involvement in the hearing was as an adviser, rather than as a member of the Panel responsible for making decisions in the claimant's case. The claimant has not pointed to any specific intervention by Ms Wake during the hearing or the deliberations which suggested that she was participating in the process of decision making.
- I am satisfied that Ms Wake had no involvement in the conduct of the investigation into the claimant's alleged misconduct. She was not part of the investigation team. She did not interview the claimant or other witnesses. It is true that she had been present when the progress of the investigation was discussed and that she was involved in the exclusion process. However, her function, throughout the various processes, had been to give administrative and advisory support, consistent with her expertise in HR matters. In the circumstances, I do not consider that, in permitting her to advise the Panel, there was any breach of the Trust's obligations under the Trust Procedure.
*(xii) (at paragraph 30(r) and 30(t)(vi) of the Particulars of Claim)
Denied the claimant disclosure of documents to which she was entitled and which would have assisted her in fairly defending herself and wrongfully refused the claimant's request for the note of Mrs Guppy's interview by Mrs Bateman on 30 June, contrary to paragraph 188.8.131.52 of the Trust Procedure.*
- Paragraph 184.108.40.206 of the Trust Procedure provides that, prior to a disciplinary hearing, the practitioner should be sent "copies of all statements and/or written material gathered during the investigation". In the days before the disciplinary hearing, the claimant sought disclosure of a number of documents which it was alleged were being withheld by the Trust. Mr Berkley contended that the Trust's failure to disclose those documents before the hearing constituted a breach of its obligations under the Trust Procedure. The Trust argued that it had disclosed all documents covered by paragraph 220.127.116.11.
Discussion and conclusions: (xii)
- Most of the documents requested by the claimant before the disciplinary hearing would not fall within the definition of documents "gathered during the investigation". Some of the documents (the RCA report, the preliminary report on which the claimant's exclusion was based and written communications between Mr Pearson and Dr Maresh and between Mr Pearson and Ms Somerset) did not exist at all. The NCAS correspondence had no relevance to the issues to be decided at the disciplinary hearing and had not been "gathered" – or, so far as I am aware, seen – by the investigation team.
- At trial, the claimant complained of a failure on the part of the Trust to disclose a number of other documents which had subsequently come to light. Most of those documents were created for purposes other than the investigation and did not come into the possession of the investigation team at all. Correspondence and other documents (e.g. the Management Statement of Case) relating to the disciplinary proceedings against Mrs Guppy and Mrs Whittle did not form part of the investigation into the claimant's conduct and were not relevant to her case. There could be no obligation to disclose them to the claimant. The interim written report written by Dr Maresh was not a document "gathered" during the investigation.
- The document on which the claimant was laying the greatest emphasis by the time of trial was the note of the interview of Mrs Guppy by Mrs Bateman on 13 June. That interview preceded the start of the investigation. According to Mrs Bateman, she had left the note in the management office for the attention of the investigation team. However, in his evidence at trial, Dr Maresh said that he had not seen it and it appears from the Trust's note of the disciplinary hearing that neither Ms Adamson nor Mrs Williams had seen it either. The contents of the note were not referred to in the interviews of Mrs Guppy by the investigation team. Mrs Bateman referred to the note in her statement of 3 July. However, it was not discussed at her interview with the investigation team on 4 July and it does not appear that the reference was followed up by the investigation team.
- As I have said, most of the documents identified by the claimant did not fall within the provisions of paragraph 18.104.22.168. The note of Mrs Guppy's interview was not seen by the investigation team and did not form part of their deliberations. That being the case, it cannot in my view be said to have been "gathered during the investigation" and the failure to disclose it did not amount to a breach of the Trust's obligations under the Trust Procedure.
*(xiii) (at paragraph 30(t),(i)(ii) and (iv) of the Particulars of Claim)
Denied the claimant's right to have her representative cross examine Mrs Whittle and Mrs Guppy and restricted the claimant's right to ask relevant questions of those witnesses, contrary to paragraph 22.214.171.124 of the Trust Procedure.*
- Paragraph 126.96.36.199 of the Trust Procedure provides that "all parties shall be free to ask questions politely and comment appropriately". Mr Berkley complained that the refusal by the Panel to permit Mr Chaudhary to ask questions of Mrs Guppy and Mrs Whittle on her behalf rendered the Trust in breach of its obligation and was unfair to her. The Trust's case was that it had no power to compel Mrs Guppy and Mrs Whittle to submit to cross-examination by Mr Chaudhary. They were not contractually obliged to do so and their Trade Union representatives made clear that, if they were required to do so, they would withdraw from the hearing. In those circumstances, the Panel adopted the fairest course open to them by allowing the claimant herself to question the witnesses.
Discussion and conclusions: (xiii)
- The Panel was faced with a problem which, although difficult to deal with, was by no means unique to the claimant's case. A disciplinary Panel has no power to compel witnesses to give evidence. Mrs Whittle and Mrs Guppy were under no contractual obligation to do so. In those circumstances, a Panel has to find a way of proceeding which minimises any prejudice to the practitioner. In the claimant's case, she was permitted to question the witnesses herself. It is clear from the Trust's note of the hearing that she was able to do so and that she was permitted to consult with Mr Chaudhary during the questioning process. The only other course realistically open to the Panel was to abort the hearing altogether. That would plainly not have been in the interests of patient safety. I do not consider that the course adopted by the Panel amounted to a breach of the Trust's contractual obligation to the claimant.
*(xvi) (at paragraph 30(t)(v) and (iii) of the Particulars of Claim)
Failure on the part of Mr Hill and the Trust to hold a fair hearing contrary to paragraph 188.8.131.52 of the Trust Procedure.*
- The claimant's case was that the way in which the disciplinary hearing was conducted was manifestly unfair. Indeed, in his closing submissions, Mr Berkley described the conduct of the hearing as "frankly astounding" and "a farce". In addition to the allegations set out at (x)-(xiii) above, the claimant made a number of additional complaints of unfairness.
- The claimant's first complaint related to the failure to grant her the adjournment she had requested. Mr Berkley submitted that the period between notification of the date of the hearing and the hearing itself was manifestly inadequate for her to read the documents she had been sent, to prepare herself and to contact potential witnesses with a view to obtaining statements from them and/or calling them to give evidence on her behalf. Given the importance of the hearing to her, he said, an adjournment should plainly have been granted.
- For the Trust, Mr Hillier pointed out that the claimant had been aware since receipt of the Trust's letter of 19 September that there was to be a disciplinary hearing. She had taken no steps to prepare for it. She had made no effort to contact witnesses at that time or earlier. Instead she had chosen to "bury her head in the sand" and do nothing. He contended that the claimant and Mr Chaudhary exaggerated the amount of preparation that was required for what was in effect a straightforward hearing. The claimant had been permitted to call Mr Sadiq and to submit the written evidence of Mr Zaidi. Any other evidence that she had submitted about her professional standing would have been accepted. The Panel had, he said, been fully entitled to refuse the application for an adjournment.
- The claimant alleged also that she had been denied disclosure of documents, in particular the note of the interview of Mrs Guppy by Mrs Bateman on 13 June. Linder Myers had requested this document in their letter of 13 October and the request had been renewed at the hearing. It was alleged at trial that the fact that the claimant was denied sight of this document constituted a serious unfairness. The Trust denied that there had been any denial of disclosure or unfairness.
- The allegation specified in Mr Hill's letter of 6 October was still the general allegation that had appeared in Ms Adamson's letter of 19 June and did not state what precisely was being alleged against the claimant. There was still no allegation of interference with the investigation. The evidence of the claimant and Mr Chaudhary was that they did not understand the case they had to meet. Mr Berkley argued that the failure to specify the precise allegations in the letter constituted unfairness to the claimant.
- Mr Hillier accepted that the letter should have made clear that it was being alleged that the claimant had "knowingly" used non-sterile instruments and had attempted to interfere with the investigation. However, he submitted that there could have been no unfairness because the letter had been accompanied by the Management Statement of Case (a document that the Trust was not obliged to disclose to the claimant) which set out the detailed findings of the investigation team which the claimant had to answer. Moreover, Mr Hillier argued that it was clear from the note of the disciplinary hearing that there had been no doubt on the part of the claimant and Mr Chaudhary about the allegations being made against her.
- Further, the claimant complained that the Panel wrongfully intervened in her and Mr Chaudhary's questioning of the witnesses, thereby preventing them from asking proper and relevant questions. The Trust's case was that its note of the disciplinary hearing demonstrates that the Panel intervened only when necessary to keep the questioning focussed on the relevant issues.
- It was alleged also that the Panel wrongly refused to accept the written submissions proffered by Mr Chaudhary or to hear oral submissions from him. The Trust's case is that there was no obligation on the Panel to accept written submissions in addition to the oral submissions made by the claimant. In any event, it is said, the document described as "written submissions" did not in the main contain submissions. Rather, it contained an account of the claimant's evidence and her complaints about the exclusion process.
- Finally, the claimant alleged that the evidence showed that the Panel had not deliberated on her case until after the hearings relating to Mrs Guppy and Mrs Whittle. Thus, they had taken into account evidence given in her absence which she had had no opportunity to challenge or refute. The Trust relied on the evidence of Ms Wake that the deliberations took place before the other disciplinary hearings.
Discussion and conclusions: (xiv)
- The claimant's case was that the disciplinary hearing was conducted in a manner that was manifestly biased and unfair by a Panel which had in effect pre-judged her case. Having heard the evidence and read the notes of the hearing, I am quite satisfied that was not so. Mr Hill impressed me as an eminently fair man who had striven to conduct the proceedings as fairly as possible in difficult circumstances. His lack of bias was evidenced by the fact that he disagreed with the conclusion of the majority of the Panel who found that the claimant had knowingly used non-sterile instruments. That finding was not based on the evidence of Mrs Guppy that the claimant had requested her to clean the scissors for re-use. The majority of the Panel found that there was insufficient evidence that the claimant had made such a request. Their finding of misconduct was based on their conclusion that, given the size of the room, her proximity to Mrs Guppy and Mrs Whittle at the time the cleaning was going on and her reaction when the matter was raised on 13 June, she must have been aware of what was happening. Mr Batterbury, the independent expert on the Panel, concurred with the majority view.
- Insofar as the claimant alleges that the matters complained of at allegations (x)-(xiii) above constituted evidence of unfairness, I find that they did not for the reasons previously stated.
- I turn now to the refusal to adjourn the disciplinary hearing. By its letter of 19 September, the Trust gave the claimant prior notice that a disciplinary hearing was to be held in the near future. The Trust Procedure did not oblige the Trust to give such prior notice. From the time she received that letter, the claimant should have been aware that it was necessary for her to put arrangements in hand to prepare for the hearing. Undoubtedly, it would have been preferable if the Trust had given the claimant longer notice of the date on which the disciplinary hearing was to take place. However, she was aware that the hearing was likely to be some time in October and, by delaying taking action until she was notified of the actual date, she was running the risk that she might leave herself insufficient time.
- The claimant had been in possession of the incident statements of Mrs Guppy, Mrs Whittle and Mrs Mottershead since 30 June and had submitted extensive written comments on those documents to the investigation team. She had copies of the notes of her investigatory meetings made by the Trust and Mr Chaudhary. All those documents were available to assist her in preparing for hearing.
- I can understand that the claimant might have thought it inappropriate to seek evidence from colleagues until she knew for sure that there was to be a disciplinary hearing. However, I would have expected her to contact any potential witnesses immediately after receipt of the letter of 19 September. If she felt unequal to doing this without assistance, she could have informed the Trust of Mr Chaudhary's absence abroad and asked for some additional time at that stage. Instead, she made no response to the letter and, as was apparent from her evidence, took no step at all to prepare for the forthcoming hearing.
- Of the statements, notes of interviews and other material enclosed with the Trust's letter of 6 October, there were only about 65 pages (in addition to the 10-page Management Statement of Case) which the claimant had not previously seen. Although the new documents demonstrated some inconsistencies as between the witnesses (and some inaccuracies in the reporting by Mrs Bateman and Mrs Eccles of the information passed to them), the reality was that the issues revealed in the statements were those of which the claimant had previously been made aware and were relatively simple. There was ample time before the hearing for her and Mr Chaudhary to read and assimilate their contents, to discuss them and to prepare to question the witnesses. Mr Chaudhary's evidence was that he and the claimant had not had an opportunity to discuss the evidence and that, at the time of the hearing, they were "desperately unprepared". Given the relatively modest amount of new material they had to consider it is difficult to see why this should have been so and the note of the hearing does not suggest that they were unprepared. The claimant suggested that her mental state at the time was such that she could not concentrate on the documents for long periods. However, no medical evidence was adduced in support of her application for an adjournment.
- Dr Maresh's evidence was that, had the disciplinary hearing been adjourned in October, there would have been a delay of four to six weeks before the Panel could be re-convened. In a case which had already been proceeding for four months, that was undesirable. Moreover, it was not only the claimant's hearing that would have had to be adjourned. Since the same Panel was to hear the cases of Mrs Whittle and Mrs Guppy, it was convenient and desirable for them to be dealt with on successive days. If the claimant's case had been adjourned then it is probable the other hearings would have been adjourned also.
- Mr Hill's evidence was that, on receiving the application for an adjournment, he had read through the documents in the claimant's case and had come to the conclusion that the issues were relatively straightforward and that any necessary preparations could be accomplished in time. Mr Sadiq was available to give evidence and there was written evidence available from Dr Zaidi. He could see no real advantage to the claimant in delaying and considered that it was appropriate to proceed.
- One of the reasons given for wanting an adjournment was that the claimant wished to adduce evidence from a large number of witnesses about her surgical skills and practice. It must have been clear to the Panel that the value of such witnesses' evidence would be limited since it is well known that even careful people can act carelessly on occasion. However many people testified to the claimant's past record, the real issue at the hearing would inevitably be whether the Panel believed the evidence of Mrs Guppy, Mrs Whittle and/or the claimant about what had happened on 11 and 13 June.
- In the circumstances, I consider that the Panel were fully entitled to reach the conclusion they did. I do not consider that the decision not to accede to the claimant's application for an adjournment constituted unfairness on the part of the Trust.
- I turn now to the non-disclosure of the note of Mrs Bateman's interview with Mrs Guppy on 13 June. At the time of the hearing, it was clear that all three members of the investigation team were saying that they had not seen or received the interview note and that it had not formed part of their considerations. That being the case, it is not surprising that Mr Hill was not prepared to delay the disciplinary hearing in order that the note could be located and disclosed. Its relevance to the hearing cannot have been clear at the time, particularly since Mr Chaudhary's demand for its disclosure was coupled with his submission that the Panel should hear no evidence about matters that occurred on 13 June. Moreover, it must have appeared that his demand formed part of his contention that the claimant was entitled to disclosure of all documents relating to the disciplinary proceedings against Mrs Guppy and Mrs Whittle. I am satisfied that, in the circumstances, the Panel was entitled to reach the decision they did.
- It is said that the note would have provided valuable material for cross-examination of Mrs Guppy because it would have demonstrated inconsistencies between her first account of the events of 11 June and her subsequent evidence given to the investigation team. In fact, the claimed inconsistencies appear to me to be relatively insignificant. Be that as it may, however, the non-disclosure gave rise to no actual unfairness since the Panel did not base their finding of misconduct on the evidence of Mrs Guppy.
- As to Mr Hill's intervention in the questioning of witnesses, it is clear that this was a hearing which could easily have run out of control. Both Mr Chaudhary and the claimant adopted a confrontational attitude from the first and were in effect making allegations of unfairness in the investigation process. They apparently believed, quite wrongly, that Mrs Guppy and Mrs Whittle were "in the clear" and that the claimant was being unfairly singled out for blame. They were determined to find out all they could about the disciplinary proceedings relating to Mrs Guppy and Mrs Whittle, rather than focussing on the claimant's own case. They made repeated objections to the Trust adducing evidence from Mrs Bateman, heedless of the fact that it was the claimant who had asked the investigation team to obtain evidence from the person(s) responsible for the communication of information on 13 June and of the assurances that the Panel fully understood that Mrs Bateman had no direct knowledge of the relevant events.
- Mr Hill made clear that the claimant and Mr Chaudhary would not be permitted to ask questions about the detail of the disciplinary proceedings against Mrs Guppy and Mrs Whittle. Such detail (e.g. what passed at Mrs Guppy's suspension interview) could not possibly have been relevant to the claimant's case. He also stopped questions aimed at getting one witness to comment on omissions from the statement of another witness. As chairman of the Panel, it was Mr Hill's duty to keep the proceedings under control and to ensure that they remained focussed on the relevant issues. It appears to me that his interventions constituted no more than reasonable efforts to achieve that goal. I am satisfied that at no time did he prevent the claimant or Mr Chaudhary from asking relevant questions pertinent to the claimant's case. I consider that Mr Hill conducted a difficult hearing with considerable competence, particularly since it was the first time he had fulfilled the role of chairman of a disciplinary Panel. I am satisfied also that his interventions were not excessive or unfair.
- The allegations that the claimant had to meet at the disciplinary hearing should have been set out clearly in the letter of 6 October. However, the detailed findings of the investigation team in the document accompanying the letter can have left the claimant in no doubt about the case she had to meet. Nor does it appear to have done so. I note that the many complaints contained in the letters written by Mr Chaudhary and Linder Myers before the disciplinary hearing did not include any suggestion that the claimant was uncertain of the case against her. No such suggestion was made at the start of the hearing. The questions asked by the claimant and Mr Chaudhary made clear that they were aware of the issues with which she had to deal. In her closing remarks, the claimant addressed each of the 14 findings set out in the Management Statement of Case separately. There is no evidence that the claimant was in any way prejudiced by the failure to include the relevant information in the letter of 6 October.
- The Panel heard oral submissions from the claimant. There was no suggestion that they would not have permitted Mr Chaudhary to make oral submissions in her stead. The written submissions he had prepared before the hearing were not suitable for use as final submissions since they did not address the Trust's evidence and consisted mainly of a rehearsal of the claimant's account of events and of the issues relating to exclusion. No doubt it was for that reason that the claimant declined to read them out during the course of her oral submissions. I am not satisfied that Mr Chaudhary sought to make oral submissions and was refused. If he did, however, that was not unreasonable, given the fact that the claimant had already made submissions on her own behalf. I am satisfied that the Panel were entitled to exercise their discretion in the way they did and that no unfairness to the claimant resulted.
- I am satisfied, having examined the evidence, that the deliberations in the claimant's case took place before the hearings relating to Mrs Guppy and Mrs Whittle. That accords with Ms Wake's recollection and would explain the postponement of those hearings.
- I do not consider that the matters complained of by the claimant, whether taken individually or collectively, constituted unfairness in the conduct of the disciplinary hearing.
After the disciplinary hearing
- After the disciplinary hearing, the claimant invoked the Trust's grievance procedures and lodged an appeal against the decision of the Panel under the provisions of the Trust Procedure. The appeal has not yet taken place. Although, in her Particulars of Claim, the claimant alleged that the Trust was in breach of its contractual obligations to her in not resolving the appeal, that allegation was not pursued at the hearing. The Trust's case was that it has not been possible to hear the appeal because of the outstanding grievance which has not yet been resolved. The claimant did not seek to argue that that was not the case. The claimant also commenced proceedings for unfair dismissal which are currently stayed.
- It follows from my findings that, save for in one respect, I do not consider that the Trust was in breach of its contractual obligations to the claimant, whether express or implied. In relation to the single breach that I have found proved, I am satisfied that it had no effect on the outcome of the investigation or the claimant's dismissal. In those circumstances, no remedy is appropriate. So far as the other alleged breaches are concerned, it is unnecessary for me to consider the issue of remedy.
- It is to be hoped that the claimant's grievance and her outstanding appeal will be determined in the near future so that both she and the Trust can achieve some finality to these unfortunate events.
Before the Honourable Mrs Justice Swift DBE sitting at The Castle, Chester, CH1 2AN, on 30 July 2010
IT IS ORDERED THAT:
- The claimant's claim shall be dismissed.
- The claimant shall pay the defendant's costs of the claim to be the subject of detailed assessment on the standard basis if not agreed.
- There will be permission to the claimant to appeal, such permission being limited to the issue of the application of Article 6 of the European Convention on Human Rights to disciplinary hearings held pursuant to the framework set out in the document "Maintaining High Professional Standards in the Modern NHS" and the need for an independent and impartial tribunal at such hearings. This issue was dealt with at paragraphs 81 to 89 of the Judgment.
This is an issue of law of considerable importance to disciplinary proceedings relating to practitioners employed in NHS hospitals and there is a compelling reason why it should be heard and determined on appeal.
Published: 02/08/2010 11:37