Internal disciplinary hearings and injunctions

12.02.2013

Daniel Tatton Brown

Dr Chhabra is a consultant psychiatrist at Broadmoor Hospital. She was alleged by a member of the public to have breached patient confidentiality whilst travelling on a train (an allegation that might cause lawyers who work on trains pause for thought...). Her employer Trust appointed an outside psychiatrist to investigate the allegations under the Trust's procedures, implementing 'Maintaining High Professional Standards in the Modern NHS'. The case manager, on reviewing the investigator’s report, decided that the matter should be brought before a disciplinary hearing at which Dr. Chhabra would face allegations of gross misconduct that may have led to dismissal. Separately the Trust referred capability concerns relating to Dr. Chhabra that had also been considered in the investigator's report, to the National Clinical Assessment Service ("NCAS").

Dr. Chhabra sought and obtained a declaration and injunction in the High Court preventing the Trust from proceeding with the disciplinary hearing. The Court of Appeal have now allowed an appeal against that decision: see West London Mental Health NHS Trust v Dr. Chhabra [2013] EWCA Civ 11.

At the heart of the case before HHJ McMullen Q.C. (sitting as a High Court Judge) at first instance, was the contention that the wrongdoing as found by the investigating officer was not capable of amounting to potentially serious or gross misconduct, so ought not (under the Trust's contractually binding procedures) to have been referred to a disciplinary panel whose function was to determine such allegations. An alternative procedure, whose sanction was limited to a first written warning, ought to have been adopted. That central assertion (which was accepted by the judge) was bolstered by more subtle arguments to the effect that the case manager was bound by whatever conclusions the investigating officer reached, and was not permitted to "ratchet up" the level of seriousness of the conduct himself. It was also submitted that the conduct panel should not reach any determination until the NCAS report into capability issues had been determined.

The CA (Pill LJ with whom Jackson and Treacy LLJs agreed) allowed the appeal, essentially on the grounds that there was no breach of contract in the Trust referring the allegation to the conduct panel.

The following points are of interest:-

-  The CA confirmed that it is open in an appropriate case for an employee to seek an injunction to stop the employee starting a disciplinary process in breach of express contractual terms: Edwards v Chesterfield Royal Hospital NHS Foundation Trust; Botham v Ministry of Defence [2012] 2 AC 22

- there was a threshold of seriousness to be crossed, in terms of seriousness, before a decision to refer to a disciplinary panel can properly be taken. However (and contrary to HHJ McMullen Q.C.'s view) the case manager was entitled to conclude that that threshold had been crossed.                    

"Patients' right to confidentiality is fundamental in the Health Service and must be respected by doctors and other staff. [The case manager] was entitled to regard a breach or breaches of it in a public place by a consultant at Broadmoor as a potentially serious offence. The breaches alleged, as described in the case investigator's report, were such that a decision to convene a disciplinary panel was justified" [at para.78]

- A case manager is required to exercise his own judgment as to the seriousness of the alleged misconduct. It was for him to decide that issue  (i.e. he or she is not bound by the conclusions of the investigating officer).

- The fact that there was or might have been considerable mitigation available to Dr Chhabra (such as a glowing personal reference and a heavy workload) did not render the decision to refer the allegations to the panel a breach of contract.

One feature of the case is that it concerned an appeal against a final determination as to the lawfulness of the Trust's actions: in neither the first instance decision nor before the CA is there any discussion of the familiar American Cyanamid guidelines. Had Dr Chhabra applied on an interim basis for an injunction to prevent the disciplinary proceedings, she would in all likelihood have succeeded: there would presumably have been a triable issue as to the lawfulness of the Trust's approach (after all, the judge at first instance was persuaded by it), and the balance of convenience would probably have favoured the employee. Depending on the circumstances of a case securing an interim injunction may prove tactically crucial irrespective of the ultimate outcome of the litigation. So although this was a victory for the employer, it is not likely necessarily to stem the flow of injunction applications in such cases.