Case - Kerslake v. North West London Hospitals NHS Trust

[2012] Med LR 568, QB Division - Mark Sutton QC, Betsan Criddle
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Does Maintaining High Professional Standards in the Modern NHS prevent an NHS employer from considering dismissal of a doctor for some other substantial reason? The answer from the High Court in Kerslake v. North West London Hospitals NHS Trust[2012] EWHC 1999 (QB) is "no".
 
The case concerned a Consultant Obstetrician and Gynaecologist, who was referred by the Trust to the National Clinical Advisory Services for assessment following concerns being raised about her clinical practice. The NCAS report concluded that the doctor was operating at the required level for a consultant, but advised the Trust to consider whether she could be reintegrated to the workplace in the face of an apparent breakdown in working relationships between her and her fellow consultants. The Trust then commissioned an investigation into whether working relationships had broken down and invited the doctor to a disciplinary hearing to consider termination of her employment for some other substantial reason on the basis of that apparent breakdown.
 
The doctor applied to the High Court for an injunction to prevent the disciplinary hearing from taking place, contending that the Trust was contractually bound to deal with the matter as one of conduct or capability under the auspices of MHPS. The High Court disagreed. The fact that the breakdown in working relationships stemmed in part from an adverse view of the doctor’s capability held by other consultants did not mean that the Trust was taking action based on capability or conduct. Therefore, the provisions of MHPS did not apply. The Court also rejected the doctor’s alternative argument that the implied term of trust and confidence could be relied upon to create procedural protections equivalent to those in MHPS in cases falling outside the scope of MHPS.
 
This is an important judgment for NHS Trusts in that it confirms that it will not be a breach of contract to seek to take disciplinary action against a doctor for reasons properly falling outside the scheme of MHPS. It also provides useful clarification that Part II MHPS applies to all exclusions of doctors and dentists from the workplace during an investigation, whatever the reason for the investigation.
 
Mark Sutton QC and Betsan Criddle acted for the Trust instructed by Andrew Rowland and Laura Horovitz of Capsticks.
 
Case Summary written by Roz Snocken, Old Square Chambers.
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