News - Simon Cheetham QC successfully represents NHS Foundation Trust in Court of Appeal

Employment & Discrimination - Simon Cheetham QC

Shareen Idu v The East Suffolk & North Essex NHS Foundation Trust [2019] EWCA Civ 1649

Judgment has been handed down in this Court of Appeal case, in which Simon Cheetham QC successfully represented the NHS Foundation Trust.

Shareen Idu, the Appellant, worked as a surgeon for the Respondent NHS Trust. The Appellant was summarily dismissed after being found guilty of gross misconduct. The Trust’s disciplinary procedure required cases involving professional conduct to include an independent doctor as a member of the disciplinary hearing panel. The same requirement existed in cases involving capability, where there was also a requirement to seek advice from the National Clinical Assessment Service (NCAS) before initiating disciplinary proceedings. The Trust considered that the allegations against the Appellant concerned her personal conduct. It therefore did not include an independent doctor on the panel, nor did it refer the case to the NCAS.

The primary issue for the Court of Appeal was whether the allegations against the Appellant related to issues involving capability or professional conduct, in which case the Trust failed to follow the correct procedure.

Giving the sole judgment, Lord Justice Underhill held there were several relevant points of guidance that could be derived from the cases of Skidmore v Dartford & Gravesham NHS Trust [2003] UKHL 27 and Mattu v University Hospitals Coventry & Warwickshire NHS Trust [2012] EWCA Civ 641 (paragraphs 26-27):

  1. Professional conduct arises from the exercise of medical skills but it does not concern everything performed in the course of a doctor’s work.
  2. The paradigm of a doctor’s professional conduct concerns the treatment of patients. Clinical conduct will usually, but not necessarily, amount to professional misconduct.
  3. The question whether conduct “arises from” the exercise of medical skills is imprecise and there will be borderline cases.
  4. It will often be relevant to ask whether the expertise of an independent doctor would have been necessary to decide the issue in question.
  5. If the doctor subject to disciplinary proceedings did not challenge a trust’s characterisation of the allegations as personal and not professional conduct, this is a relevant factor to which the Court may attach weight.
  6. It is for the Court, not the trust, to determine whether the conduct should be characterised as personal or professional.
     

The Appellant argued the question of her medical skills should be considered broadly so as to cover the full range of a consultant’s professional responsibilities. For example, it was argued her failure to agree to a job plan concerned professional conduct as it related to her work “qua consultant”. Lord Justice Underhill rejected this suggestion holding that the Appellant’s work as a doctor was merely the context in which the allegations arose. The allegations related to employment managerial issues as distinct from the exercise of her medical skills (paragraph 44). Nor did the allegations concern capability. Instead, they related to rudeness, bullying and a refusal to cooperate with management, which was not a result of the Appellant’s lack of knowledge or ability (paragraph 47).

Simon Cheetham QC was instructed by Victoria Watson at Capsticks Solicitors LLP.

To read the full judgment, please click here.

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