Case - Al-Mishlab v Milton Keynes Hospital NHS Foundation Trust

[2015] EWHC 191 (QB), High Court - Ben Cooper QC
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Al-Mishlab v  Milton Keynes Hospital NHS Foundation Trust

The High Court (Elisabeth Laing J) handed down judgment in this case on 2 February 2015, holding:

  1. that in reviewing an NHS Trust’s exercise of its discretion to exclude a doctor from practice the Court will apply the Wednesbury unreasonableness test; and
  2. that the Court will not order specific performance of an employment contract where relationships between employees have broken down or where such an order would require further supervision by the Court.

The successful Defendant (‘the Trust’) was represented by a team at DAC Beachcroft led by Udara Ranasinghe and Ben Cooper acted for the Trust at trial.

Facts

The Claimant, a colorectal and general surgeon, employed by the Trust since 2002, had restrictions placed on his practice in July 2010, after colleagues raised concerns about him. Following an assessment in March 2011, the Royal College of Surgeons recommended his immediate suspension from all surgical practice. Accordingly, the Trust excluded him pending completion of an internal investigation. This also meant that he could not practise privately.

At the end of its investigation process, the Trust concluded that the Claimant had serious problems with communication with colleagues and the recognition of complications in his patients. There had also been a fundamental breakdown in relationships within the colorectal surgery team.

The Trust therefore tried to place the Claimant at another NHS Trust, where he could undergo remedial training without the difficulties arising from those relationship problems. Although it had successfully arranged an observership at another hospital, the Trust was unable to find such a remedial training placement for the Claimant.

The Trust also further explored the possibility of remedial training taking place internally, but encountered two major obstacles. Firstly, no suitable and willing supervisor could be identified within the Trust. Secondly, the breakdown in relationships within the relatively small colorectal surgical team made his return within the Trust impractical and attempts at mediation failed to resolve those problems.

At the time of trial, the Claimant had been excluded/restricted from all surgical practice for approximately 3½ years whilst the various investigations, assessments and attempts to find a solution for his return had taken place.

The Claimant’s claim

It was common ground that the Claimant’s contract of employment incorporated (so far as apt for incorporation) provisions of Maintaining High Professional Standards in the Modern NHS (‘MHPS’) – the disciplinary policy generally applicable to doctors employed in the NHS. In particular, it was common ground that the relevant provisions of Part II of MHPS, governing the circumstances in which the Trust could exclude the Claimant or place restrictions on his practice, were incorporated.

Part II provides in particular that exclusion should only be used in exceptional circumstances where necessary to protect the interests of patients, other staff or the integrity of an investigation. It provides that alternatives (such as more limited restrictions on practice) should be used where possible and lays down procedures for 4-weekly reviews of exclusion, along with other detailed procedural safeguards.

The Claimant alleged that the Trust was in breach of contract both in excluding him in March 2011 and in maintaining that exclusion for 3 ½ years. He alleged that the Trust had failed adequately to consider alternatives and that imposing the initial exclusion and/or maintaining it for that period had not been necessary for any of the purposes permitted under Part II of MHPS.

The Claimant sought a declaration that he had been excluded in breach of his employment contract, a mandatory injunction compelling the Trust to allow him to return to practice and damages for the loss of his private practice income.

Held

In dismissing the Claim, Elisabeth Laing J reviewed the case law relating to injunctive relief and MHPS. She noted that whilst one aim of MHPS was to end the ‘suspension culture’ in the NHS, nevertheless the power to exclude is ‘essential to patient safety’ and to the extent that there is any doubt about where the balance lies between the interests of the practitioner and the interests of patients ‘that must be resolved in favour of the safety of patients’ (para 82).

The judge cited with approval the line of cases that makes clear that in implementing a disciplinary policy an employer is not engaging in an adjudicative process, but is managing its employees and its business (para 83).

The judge also accepted the Trust’s submissions that Part II of MHPS gives NHS Trusts a discretion to exclude and that the standard to be applied in reviewing that discretion is Wednesbury unreasonableness (para 88). Where there are contractual fetters on such a discretion (as there are in MHPS), the Court should assess whether those conditions have been fulfilled by applying the Wednesbury test (para 89).

The judge also emphasised the need, in cases of this kind, to focus on those alleged breaches which have a causal relationship with the central loss claimed and the remedies sought. This requires a focus, when reviewing the exclusion and associated procedures, on substance rather than form. Thus she held that the question is not whether the Trust has observed MHPS down to the letter, but whether despite certain failures to follow MHPS the initial exclusion and its continuation were, in substance, a breach of MHPS (para 95). She held that any other approach would mean that an NHS Trust could be forced to reinstate a practitioner having broken only procedural provisions of MHPS, which she described as ‘adjectival’ (para 96).

The judge found that there had not been a substantial breach of MHPS by the Trust as it had at all material times had rational grounds for imposing and maintaining the Claimant’s exclusion from clinical practice. She nevertheless went on to consider how she would have decided the question of remedy had she found differently. She held that even if there had been such a breach, she would not have granted the mandatory injunction sought by the Claimant. She accepted the Trust’s submission that the Court should not order specific performance when the underlying human relationships had broken down or where an order is likely to require the court to manage relationships in the future. The Court was not equipped to manage relationships in that way (para 157).

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