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 IRLR 237 (HC & CA), EWHC 3340 (QB), Queen's Bench Division - John Hendy QC
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An NHS trust was not entitled to hold a disciplinary hearing into alleged deficiencies in a consultant psychiatrist's care of a patient who absconded and killed a stranger after the psychiatrist had allowed him unsupervised release into the hospital grounds. The findings of an investigation, which concluded that she had not been at serious fault and that her continuing employment was not a cause for concern, were not capable of justifying disciplinary action.
The applicant consultant psychiatrist (M) applied for an injunction prohibiting her employer, the respondent NHS trust, from holding a disciplinary hearing into alleged deficiencies in her care of one of her patients (B). B, who was a paranoid schizophrenic with a history of violence, was re-admitted to hospital for assessment following concerns about a possible deterioration in his condition. M authorised B to have unsupervised release into the hospital grounds for one hour. She had yet to examine him herself as she had been on duties elsewhere, but acted on the basis of what she had been told by her colleagues. B absconded and killed a stranger the following day. Almost a year later the trust informed M that it would be commencing disciplinary proceedings against her. M agreed not to undertake clinical work pending the outcome. In accordance with the applicable Department of Health procedure on disciplinary proceedings, a panel was appointed to investigate the matter. It made criticisms of M, but reported that she had not been at serious fault in any respect and that her continuing employment by the trust gave no cause for concern. The trust's chief executive (H) informed M that in light of the findings of the report, there was to be a disciplinary hearing. He stated that the investigating panel had made serious findings against her, and that any sanction could include dismissal. M then applied for an injunction against the holding of a disciplinary hearing and against her continued exclusion from clinical work. Consequently the trust allowed M to return to clinical duties, and it stated that a disciplinary hearing would be conducted under the procedure provided in the Department of Health publication for maintaining high professional standards and that dismissal would not be a potential outcome. M's application was adjourned until the instant hearing. M submitted that (1) in light of the report that there had been no serious fault on her part and that there was no cause for concern about her competence, the trust was not contractually entitled to proceed with a disciplinary hearing. She argued that it was clear from the disciplinary proceedings procedure that a disciplinary hearing could only proceed if the investigating panel had made a finding of fault, and that such fault was limited to serious professional incompetence; (2) in the event that the trust was entitled to hold a hearing, H should not be a member of the disciplinary panel.
HELD: (1) It was clear from the terms of the disciplinary proceedings procedure that the trust could proceed to a disciplinary hearing only where there had been a finding of fault by the investigating panel. There was nothing to suggest that the interpretation of fault under the procedure did not cover fault of any degree. Therefore, although there was no finding of serious fault, the trust could assert that there was a finding of fault. The sanctions available under the procedure for maintaining high professional standards were not appropriate in M's case: termination of contract had already been ruled out by the trust; and the other options, which were in effect all forms of warning that an improvement in clinical performance was required, were ruled out by the investigating panel's finding that M was and remained conscientious and competent. In any event, the trust had allowed M's unconditional return to full-time clinical duties. It also followed that it would not have been open to the trust formally to reprimand M following a hearing. The investigating panel had found that M had made a single mistake in a matter of clinical judgment, and that such judgment, albeit wrong, was in accordance with a range of opinion that could have been held by competent professionals in the field. There was no finding of any other culpable element, such as carelessness or inadequate consultation with colleagues. On the contrary, the panel had gone out of its way to emphasise that M was a highly regarded, conscientious and competent practitioner. Therefore it was a case of a pure one-off misjudgement, which few professionals could claim not to have made occasionally. The ACAS Code of Practice on Disciplinary and Grievance Procedures stated that the purpose of imposing disciplinary sanctions short of dismissal was to encourage improvement among employees whose conduct or performance was unsatisfactory, but there was no suggestion in M's case that a reprimand was necessary or appropriate as a way of encouraging improvement. Accordingly, the findings made by the investigating panel were not capable of justifying disciplinary action, and there was no basis for a hearing of the kind the trust wished to conduct. (2) Although the question no longer arose, it would not be appropriate for H to be a member of the disciplinary hearing panel. He had incorrectly stated that serious findings had been made against M and that dismissal was an option. There would be room for legitimate concern that, having committed himself firmly on paper to an erroneous view of the effect of the investigating panel's report, he would find it difficult to approach the question of any disciplinary action on a basis that fairly reflected the real findings of the investigation. Although there was no finding of actual bias, there was a sufficient case of apparent bias.