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An NHS trust would be in breach of a doctor's contract of employment by conducting a hearing about his capability without first referring the matter to a National Clinical Assessment Service panel for assessment and without the panel advising that the doctor's performance was so flawed that no action plan would have a realistic chance of success.
The court was required to determine whether the defendant NHS trust would be in breach of the employment contract of the claimant (L) by conducting a hearing about his capability without there first being an assessment by the National Clinical Assessment Service (NCAS), and whether there had been excessive delay in the trust's pursuit of misconduct allegations against him.
L had been employed by the trust as a consultant anaesthetist since 2003. During his employment the trust adopted conduct and disciplinary procedures under a new national policy, "Maintaining High Professional Standards in the Modern NHS" (MHPS) through a local policy in documents HR27 and HR28. In 2006 and early 2007 the trust received complaints about L's conduct. It found in May 2007 that L had breached its bullying and harassment policy and recommended formal disciplinary action, while noting that L was remorseful and wished to apologise. In November 2007 L was involved in caring for a patient whose death was treated by the trust as a serious untoward incident. L was excluded from duty a few days later and an investigation was commenced. The trust contacted NCAS and obtained three experts' reports, which were all critical of L. An interim suspension order was imposed on L. The trust took the view that L's case had to be taken to a capability hearing but that a clinical assessment by NCAS was not required before the hearing, and it set a date for the hearing. L wanted an assessment by NCAS. Faced with his application for an interim injunction the trust undertook not to hold the hearing until trial or further order.
HELD: (1) There was a conflict between Pt I, para.17 and Pt IV, para.13 of MHPS, which had to be resolved in favour of Pt IV, which was introduced two years after Pt I pursuant to a later enactment, and was drafted having regard to the provisions of Pt I. It replaced an earlier policy, HC(90)9, and should be regarded as the framework in accordance with which NHS trusts had to formulate their professional capability procedures. Part IV required local implementation of capability procedures in accordance with its framework. Such local procedures would require advice from the assessment panel of NCAS that no action plan would have a realistic chance of success before the trust could proceed to a capability hearing. The relevant provisions of MHPS Pt IV applied to the way in which concerns about L's capability were to be dealt with even before the trust had adopted HR28 and HR27; after they were adopted, their relevant terms were incorporated into L's contract. Attachment 4 of HR27, which was consistent with MHPS Pt IV, was clear: the trust could not proceed to a capability hearing about L before it had referred the matter to NCAS for assessment and the NCAS assessment panel had advised that no action plan had a realistic chance of success. In L's case, NCAS had not advised the trust that no action plan for L would have a realistic chance of success. NCAS told the trust that proceeding to a capability hearing without a prior NCAS assessment could put the trust at risk of challenge. Its correspondence to the trust did not establish that an assessment panel had advised that L's performance was so flawed that no educational and/or organisational action plan would have a realistic chance of success. Absent such advice, the trust could not proceed to a capability hearing. Accordingly the trust would be in breach of contract if it were to proceed to a capability hearing of L's case before an NCAS assessment panel had advised in terms set out in HR27 para.1.23 (see paras 76-77, 82-84, 86 of judgment). (2) Without doubt it was an implied term of contracts of employment that disciplinary processes be conducted fairly and without undue delay, but L's contract contained no express term to such effect. The generic words in the introduction to HR28 did not found an obligation that conduct proceedings had to be completed in a certain time. The trust was not in breach of any contractual obligation in pursuing allegations of misconduct against L. It had investigated the allegations thoroughly and without undue delay. L had admitted most of them. He was not told that the allegations had been dropped. Other very serious concerns about his capability had supervened. In 2010 it was made clear to him that the misconduct allegations were being pursued (paras 93-96).
For the claimant: Mark Sutton QC, Betsan Criddle
For the defendant: Giles Powell, Nicola Newbegin
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