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The Claimant, Mr John Lu, is a consultant cardiac surgeon employed by Nottingham University Hospital NHS Trust (“the Trust”).
In July 2009, a cluster of cases of an infection called prosthetic valve endocarditis (PVE) was identified in the centre where Mr Lu works. Mr Lu was identified as the source of the infection. Without Mr Lu’s knowledge or negligence, his hands had become colonised by a strain of antibiotic-resistant bacteria; the bacteria was transferred to patients during heart valve surgery through undetected micro-perforations in his surgical gloves; and caused the PVE infections.
Mr Lu ceased operating as soon as the outbreak was discovered, whilst the Trust investigated the reasons for the outbreak. During that period, Mr Lu became de-colonised and the evidence of microbiological experts was that he was no more likely to become re-colonised with the outbreak strain than any other surgeon. He also agreed that when he returned to surgery he would wear two pairs of gloves to provide extra protection.
In August 2012, the Trust Board decided that, following its extensive investigations over the course of three years which had found that Mr Lu posed no greater risk of causing PVE infection than any other cardiac surgeon working at the same centre, Mr Lu could return to surgical practice.
Despite this, Mr Lu has not yet returned to practice. One reason for this is that, notwithstanding the Trust Board’s decision, the committee of senior managers and employees tasked with coordinating Mr Lu’s return to work sought to impose a requirement that when seeking patient consent for his involvement in any future surgery, Mr Lu would have to explain his particular history with regards to the outbreak (“the enhanced consent procedure”). There was also an issue about whether the Trust had acted promptly and fairly in the way it set about making arrangements for Mr Lu’s return to surgical practice under a “re-familiarisation programme”.
Before Mr Justice Lewis, Mark Sutton QC and Ben Cooper, of Old Square Chambers, argued on Mr Lu’s behalf that the proposed enhanced consent procedure is not required by law and is unjustified. Rather, they argued, the obligation is to provide patients with information that enables them to form a proper understanding of the risk. Therefore, since the Trust Board had concluded that Mr Lu now poses no greater risk than any other surgeon, it is only necessary for Mr Lu to inform patients generally about the risk of contracting PVE; he need not volunteer information about the outbreak or his specific association with it because it does not reflect any current surgical risk. It is therefore appropriate for Mr Lu to discuss with patients more detailed information about the outbreak only in response to direct questions.
The main issue for the court to decide was therefore whether, in those circumstances, it was open to the Trust to impose the enhanced consent process on Mr Lu both during Mr Lu’s “re-familiarisation programme” and afterwards in independent practice, or whether the imposition of the enhanced consent process would amount to a breach of the implied term of trust and confidence.
The court was also asked to determine whether the Trust had breached the implied term of trust in its approach to the design of the “re-familiarisation programme” itself.
On the consent issue, Mr Justice Lewis held that there is “no basis for requiring the provision of additional information over and above that which the responsible consultant surgeon considers should be provided.” Moreover, if the Trust, as Mr Lu’s employer, insisted on Mr Lu or any surgeon supervising him during his “re-familiarisation programme” providing information additional to that which they considered necessary in order to obtain informed patient consent then that would be likely to destroy or seriously damage the employment relationship and would, therefore, be a breach of the term of mutual trust and confidence implied into his employment contract.
In relation to the “re-familiarisation programme” itself, the judge found that the Trust had not breached the implied term of trust and confidence, either in the length of time taken to design that programme or in relation to the content of the programme itself.
Case Summary written by Sophie Beesley, Old Square Chambers.
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