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 EWCA Civ 293, Court of Appeal - John Hendy QC
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The Court of Appeal upheld the granting of an injunction against an NHS employer in favour of its employee, a Consultant Psychiatrist, preventing it from convening a capability hearing under its contractual disciplinary procedure with the purpose of disciplining her in circumstances where the Trust’s own investigation into her alleged incapability had vindicated her.
The decision confirms that an NHS employer’s discretion to subject its consultant staff to disciplinary and capability procedures under the national procedures contained in Maintaining High Professional Standards in the Modern NHS is not unfettered and will be restrained by injunction in circumstances where it is inappropriate to invoke such procedures.
The South West London and St George’s Mental Health NHS Trust appealed against a decision of Underhill J sitting in the High Court to grant an injunction restraining it from holding any disciplinary hearing or disciplining Dr Mezey in consequence of the findings of an enquiry. Dr Mezey was a consultant psychiatrist. She had the care of a patient (B) who suffered from a persistent delusional disorder and/or paranoid schizophrenia. B had accepted voluntary admission to a medium secure unit. He was, however, allowed unsupervised release in the grounds of the hospital for one hour. He absconded and the next day attacked and killed a stranger. A panel was convened under Annex B of HC(90)9, the Department of Health's circular on disciplinary procedures for hospital staff to investigate whether Dr Mezey was at fault in relation to the incident. The panel's report concluded that although Dr Mezey’s decision with regard to unescorted leave was inappropriate, that did not amount to serious professional incompetence: the Trust had failed to prove that she had been at serious fault. The Trust proposed to convene a disciplinary hearing to consider the findings of the report. The hearing would be in accordance with the procedure which had replaced HC(90)9, namely Maintaining High Professional Standards in the Modern NHS 2003/2005 (MHPS). The relevant part of MHPS was Part IV dealing with issues of capability. No material other than the report would be before the panel at the capability hearing. The Trust indicated that the sanction, if any, that it would impose on Dr Mezey would exclude dismissal. Before the High Court, the Trust had expressed the view that a reprimand would be the appropriate disciplinary sanction. Dr Mezey obtained an injunction preventing the trust from holding a disciplinary hearing. Underhill J held that it was not open to the Trust on the basis of the report to impose any disciplinary sanction on Dr Mezey under Part IV of MHPS. Dr Mezey submitted that the purpose of the capability procedure was to improve future performance and the report showed that there was no issue of lack of capability so that no action was necessary.
The Court of Appeal held that, in the terms of Part IV of MHPS, a capability issue only arose if it could be shown that the employee medical practitioner lacked knowledge, or ability, or had rendered consistently poor performance. The findings of the report precluded such a judgment being made against her. Her capability to practice was not called in question by the report; on the contrary her competence was vindicated. The report concluded that Dr Mezey was an obviously conscientious and competent consultant psychiatrist and that her mistake with regard to the grant of unescorted leave, which might well have been made by others, did not indicate any cause for concern that she was likely to put other patients or the public at risk in the future. Her decision to grant unescorted leave was inappropriate but did not amount to serious professional incompetence. In the light of those findings the instant case was not one where there was genuinely serious misconduct which permitted a disciplinary hearing under MHPS. The threshold for invoking any disciplinary procedure was not crossed and the Trust was not entitled to commence disciplinary action under Part IV of MHPS. In the circumstances a capability panel hearing was impermissible. To impose it was to act in breach of the agreed procedure. It was a breach of contract which could be restrained by injunction. Underhill J was right to grant the injunction.