JUDGMENT
West London Mental Health NHS Trust
(Respondent) v Chhabra (Appellant)
before
Lady Hale, Deputy President
Lord Kerr
Lord Reed
Lord Hughes
Lord Hodge
JUDGMENT GIVEN ON
18 December 2013
Heard on 29 October 2013
Appellant Respondent
Mark Sutton QC Jane McNeill QC
Betsan Criddle Louise Chudleigh
(Instructed by (Instructed by Capsticks
RadcliffesLeBrasseur) Solicitors)
LORD HODGE, (with whom Lady Hale, Lord Kerr, Lord Reed and Lord
Hughes agree)
1. This appeal is concerned with the operation of the disciplinary procedures
for doctors and dentists in the National Health Service, which the Secretary of
State for Health introduced over eight years ago. It raises an important question
about the roles of the case investigator and the case manager when handling
concerns about a doctor’s performance.
The relevant procedures
2. In December 2003 the Secretary of State for Health exercised his powers
under section 17 of the National Health Service Act 1977 to give directions called
the Restriction of Practice and Exclusion from Work Directions 2003. These
required all NHS bodies to comply with a document which set out new procedures
for the initial handling of concerns about doctors and dentists in the NHS (Health
Service Circular 2003/12). Those procedures became parts I and II of the
framework for disciplinary procedures for doctors and dentists in the NHS which
was agreed by the Department of Health, the British Medical Association and the
British Dental Association and was issued in February 2005. By the Directions on
Disciplinary Procedures 2005 the Secretary of State directed all NHS bodies in
England and Wales to implement the full version of the framework contained in a
document called “Maintaining High Professional Standards in the Modern NHS”
(“MHPS”).
3. The principal relevant innovations in MHPS were:
(1) An employing trust took on responsibility for disciplining doctors
and dentists whom it employed;
(2) Doctors and dentists were made subject to the same locally-based
misconduct procedures as other staff members;
(3) The same disciplinary procedures applied to all doctors and dentists
employed in the NHS;
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(4) The new disciplinary procedure replaced the disciplinary procedures
contained in circular HC(90)9, which I discuss in paras 16 and 17
below; and
(5) There was a single process for dealing with concerns about the
professional capability of a doctor or dentist, which tied in with the
work of the National Clinical Assessment Authority (“NCAA”).
This involved the preparation of an action plan to address the
concerns about capability. But if that plan had no realistic chance of
success, there would be a capability hearing before a panel.
4. MHPS recognised the importance of doctors and dentists keeping their
skills and knowledge up to date. It expressed a preference for tackling concerns
about the performance of a doctor or dentist by training and other remedial action
rather than solely through disciplinary action. But it did not seek to weaken
accountability or avoid disciplinary action where there was genuinely serious
misconduct. It recognised that, where serious concerns were raised, the paramount
duty was to protect patients.
5. MHPS provided that where concerns arose about a practitioner’s
performance, the medical director was to liaise with the head of human resources
to decide the appropriate course of action. This involved the identification of the
nature of the problem or concern and consideration whether it could be resolved
without resort to formal disciplinary procedures. Where the concerns related to
clinical directors or consultants, the medical director was to be the case manager
and was responsible for appointing a case investigator.
6. It was the task of the case investigator to investigate the allegations or
concerns and report within four weeks. Paragraph 12 of Part I of MHPS stated:
“The case investigator is responsible for leading the investigation
into any allegations or concerns about a practitioner, establishing the
facts and reporting the findings.”
It was the responsibility of the case investigator to decide what information needed
to be gathered and how it should be gathered. It was envisaged that this could
involve both written statements and oral evidence. The practitioners who were the
subject of investigations were entitled to see a list of the people whom the case
investigator would interview. The practitioners were to be given an opportunity to
put their view of events to the case investigator and were to have the opportunity
to be accompanied when they did so. The case investigator’s report was to give
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the case manager sufficient information to enable him or her to decide whether,
among other things: (i) there was a case of misconduct which should be considered
by a disciplinary panel; (ii) there were concerns about performance that should be
explored by the NCAA; (iii) there was a need to consider restrictions on the
practice of the practitioner or his or her exclusion from work; and (iv) there were
intractable problems about performance which should be put before a capability
panel.
7. Part III of MHPS provided guidance on conduct hearings and disciplinary
procedures. Every NHS employer was to have a code of conduct or staff rules
which set out acceptable standards of behaviour. Breaches of those rules were to
be treated as misconduct. Issues of misconduct were to be dealt with by the
employing NHS body under its own conduct procedures. Employers were advised
to seek the advice of the NCAA particularly in cases of professional misconduct.
8. In 2005 the NCAA changed its name to the National Clinical Assessment
Service (“NCAS”) when it became part of the National Patient Safety Agency. It
is now an operating division of the NHS Litigation Authority.
The Trust’s implementation of MHPS
9. In March 2007 the West London Mental Health NHS Trust (“the Trust”)
implemented the Secretary of State’s directions by introducing a policy for
handling concerns about a doctor’s performance (policy D4A) and by amending
the disciplinary policy (D4) which it introduced in July 2001. The latter policy set
out guidance on the conduct of staff in its staff charter (appendix 3 of policy D4).
That guidance included as a value “Preserve Confidentiality” and stated as
example behaviour the following:
“Uphold the Trust’s policies on freedom of and disclosure of
information. Do not abuse knowledge. Use appropriate private
locations for discussions of a personal nature and use e-mail
correspondence cautiously.”
10. The disciplinary policy (D4), as amended, applied to all of the Trust’s
employees. It stated, at para 3.1:
“It is a fundamental principle of all disciplinary action that
employers and managers must act in a way which an objective
observer would consider reasonable…”
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It provided that the member of staff had to be told in writing of the complaint in
advance of any disciplinary hearing (para 3.6) and stated that no formal hearing
should be convened until there was sufficient evidence to suggest that there was
potentially a case to answer (para 3.8). In para 13 it identified misconduct which
might result in disciplinary action under three categories: minor, serious and gross.
Serious misconduct was defined as “misconduct … which is not so severe as to
warrant dismissal but is too serious to be considered as minor”. In para 13.4.1 it
described gross misconduct in the following terms:
“Some instances of misconduct/poor performance will be so serious
as to potentially make any further relationship and trust between the
Trust and the employee impossible.”
It listed typical examples of such conduct. In January 2011, after the events which
gave rise to disciplinary proceedings in this case, the Trust amended that list with
effect from 28 March 2011 to include:
“serious breaches of information governance with regard to data
protection, confidentiality and information security”.
The policy also set out in section 15 and appendix 5 a “fair blame” procedure
which could apply “when the potential conduct or performance issues …do not
constitute serious or gross misconduct”.
11. Appendix 6 set out guidance for managers for investigations under the
disciplinary policy. In para 1.1 it stated
“Before disciplinary action is taken, it is essential to establish the
facts through an investigation.”
In para 2, it answered the question “Why is the investigation important?” thus:
“2.1 to establish as far as practicable what has happened and why.
2.2 to ensure future decisions are rational and made on the basis of
evidence.
2.3 to meet the requirement to demonstrate that natural justice has
been observed.
2.4 to form the basis of any case presented to a Disciplinary Panel.
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2.5 to ensure decisions made by the trust are capable of scrutiny
either through an internal appeal or by an Employment Tribunal or
court of law.”
The appendix advised the manager carrying out the investigation on how to
conduct and record interviews and on the preparation and content of the
investigatory report. Para 5 stated that the investigatory officer would be required
to present findings to a formal hearing “if there is a prima facie case of misconduct
and their report would form the basis of their verbal presentation”. In para 9 the
guidance stated that the report should contain conclusions, including whether there
was a disciplinary case to answer at a formal hearing. It stated that the conclusion
might suggest
“whether the misconduct (if proven) could constitute serious or gross
misconduct, or whether the Fair Blame procedure should apply”.
The report was to have appendices including records of witness interviews and
statements (para 10). Para 11 instructed the investigatory officer to ensure that key
witnesses were available for the hearing before the disciplinary panel to enable
their evidence to be scrutinised by the employee and the panel.
12. Policy D4A, which related to doctors and dentists, replaced the disciplinary
procedures in circular HC(90)9. It provided in section 1 that where a serious
concern arose about the conduct or capability of a doctor or dentist, the chief
executive would appoint a case manager, whose first task was to identify the
nature of the problem and assess the seriousness of the issue on the information
available. In deciding how to proceed, the chief executive was to consult the
director of human resources, the medical director and the NCAS (para 1.8). Where
it was decided to follow a formal route, the medical director was to appoint an
appropriately experienced person as case investigator. Para 1.13 provided that the
case investigator was responsible for
“leading the investigation into any allegations or concerns about a
practitioner, establishing the facts and reporting the findings”.
The case investigator was charged with collecting sufficient written statements and
oral evidence to establish a case before it was decided whether to convene a
disciplinary panel. He or she had to keep a written record of the investigation, the
conclusions reached and the course of action agreed by the director of human
resources and the medical director. The case investigator did not decide on what
action should be taken and would not be a member of a disciplinary panel in the
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case (para 1.14). The purpose of the investigation was to ascertain the facts in an
unbiased manner (para 1.17). The case investigator was to complete an
investigation within four weeks and thereafter to submit a report to the case
manager, giving sufficient information to enable the latter to decide, among other
things, whether there was a case of misconduct that should be put to a conduct
panel (para 1.19).
13. Part 3 of policy D4A provided that “Misconduct matters for doctors and
dentists, as for all other staff groups, are dealt with under the trust’s disciplinary
policy and procedure, D4”, but that the Trust was to contact the NCAS for advice
before proceeding when the concerns related to a medical practitioner. Para 3.2
spoke about “alleged misconduct being investigated under the Trust’s disciplinary
policy”. In my view, the succinct provisions in policy D4A relating to the
investigation need to be read alongside the provisions relating to investigations in
policy D4, and in particular in appendix 6, which I have summarised in para 11
above and which cover the same ground in more detail. If there are any
inconsistencies between the two policies, D4A will govern as the policy specific to
doctors and dentists.
14. Part 4 of policy D4A set out procedures for dealing with concerns about
capability, such as incompetent clinical practice, inability to communicate
effectively with colleagues and ineffective clinical team working skills. In short,
the policy provided for consultation with the NCAS and, where possible, the
remediation of any lack of capability identified in an assessment through an agreed
action plan to provide education and support. Where problems of capability were
so serious that no such action plan had a realistic prospect of success, the case
manager, informed by the investigation report and the advice of the NCAS, would
have to decide whether there should be a capability hearing before a panel (para
4.12). Such a hearing could result in the termination of the practitioner’s
employment (para 4.23).
15. Para 4.5 gave guidance on how to proceed where issues of conduct and
capability were involved. It provided:
“It is inevitable that some cases will cover both conduct and
capability issues. It is recognised that these cases can be complex
and difficult to manage. If a case covers more than one category of
problem, they should usually be combined under a capability hearing
although there may be occasions where it is necessary to pursue a
conduct issue separately. Although it is for the Trust to decide upon
the most appropriate way forward having consulted the NCAS[,] [i]n
the event of a dispute the practitioner may make representations to
the designated board member. The individual is also entitled to use
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the Trust’s grievance procedure if they consider that the case has
been incorrectly classified.”
16. The new investigative procedures were materially different from those in
the previous disciplinary procedure set out in circular HC(90)9. The earlier
procedure involved first a decision by the chairman of a public health authority
whether there was a prima facie case against the practitioner. If the chairman
decided that there was a prima facie case but the facts were disputed, the authority
responsible for appointing the practitioner could set up an investigating panel,
normally of three persons and with a legally qualified chairman who was not an
officer of the Department of Health or the authority. The task of the investigating
panel was to “establish all the relevant facts of the case” (para 11). The practitioner
had a right to appear and be legally represented at the hearing. A lawyer would
adduce the evidence on behalf of the authority; the practitioner’s lawyer would
cross-examine the authority’s witnesses; and the practitioner could call his own
witnesses, who would be subjected to cross-examination. The investigating panel
produced a report, making findings of fact, and determining whether the
practitioner was at fault. The panel was entitled to recommend disciplinary action.
17. Although policy D4A used similar language to circular HC(90)9 when it
spoke of the case investigator “establishing the facts”, the case investigator’s role
is more limited than that of the investigating panel under circular HC(90)9, which
could be described as quasi-judicial in nature. The latter made findings of fact after
hearing evidence which would often have been tested by cross-examination. The
authority then acted on the facts which the investigating panel had determined. By
contrast, under policies D4A and D4 the case investigator enquires into the facts
by interviewing people, and the practitioner is not able to test their accounts of
events during the investigation. The outcome of the investigation is a report on
whether there is a prima facie case of misconduct. Thereafter, if the case manager
decides that it is appropriate, the facts are determined at a hearing before a conduct
panel, where the practitioner may be represented, test the evidence of the
management witnesses, and call his or her own witnesses (policy D4 appendix 8).
The events in this case
18. Dr Chhabra was first employed by the Trust as a consultant forensic
psychiatrist at Broadmoor Hospital, which is a high security unit, on 3 September
2009. There was a written contract of employment dated 26 October 2009. Clause
3 of that written contract provided:
“Whilst it is necessary to set out formal employment arrangements in
this contract, we also recognise that you are a senior and professional
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employee who will usually work unsupervised and frequently have
the responsibility for making important judgements and decisions. It
is essential therefore that you and we work in a spirit of mutual trust
and confidence.”
The clause then listed several mutual obligations, including cooperation and
maintaining goodwill. It was common ground that policies D4 and D4A were
incorporated into the contract of employment so far as they were apt for
incorporation.
19. Shortly after her appointment, problems emerged in her relationship with
her clinical team. In October 2009, negative feedback from members of her team
caused her line manager to have concerns about her clinical team working skills.
As a result of the continued expression of concerns it was arranged in October
2010 that Dr Chhabra should undergo a 360° appraisal process. Dr Chhabra
contended that her case load had been increased contrary to her agreed job plan
and that she had been deprived of the support of a senior house officer and a
secretary for a number of months. Her line manager, Dr Bhattacherjee, warned her
that there might be a formal process if people continued to express concerns about
her. In dealing with those issues her line manager took advice from Mr Alan
Wishart, the Trust’s associate human resources director. On 1 October 2010 a
solicitor of one of Dr Chhabra’s patients submitted a complaint against her.
20. On 1 December 2010, Ms Jo Leech, who was the Head of Secure Services
Policy at the Department of Health and had previously worked at Broadmoor
Hospital, complained that Dr Chhabra had breached patient confidentiality when
travelling by train in the company of another doctor on 24 November 2010. The
allegation was that Dr Chhabra, whilst seated opposite Ms Leech in a busy
carriage, discussed an incident involving a patient in the secure unit and was
reading a medical report on a patient whose name and personal details could be
clearly identified. As a result, the Trust suspended her from work. After Dr
Chhabra brought proceedings seeking an injunction against her suspension, the
Trust allowed her to resume her work at another location in March 2011.
21. Meanwhile, on 15 December 2010 Dr Nicholas Broughton, the Trust’s
medical director, who was the case manager in relation to the concerns raised
about Dr Chhabra, decided to commission an investigation into those concerns.
He appointed Dr Amanda Taylor, a consultant forensic psychiatrist from another
trust as case investigator. He instructed Dr Taylor to investigate the following four
matters:
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(1) The allegation of breach of patient confidentiality during the train
journey on 24 November 2010;
(2) An allegation that Dr Chhabra had dictated patient reports when
travelling on a train;
(3) The concerns about Dr Chhabra’s working relationship with her
clinical team; and
(4) The solicitor’s complaint dated 1 October 2010.
After Dr Chhabra expressed concerns that Mr Wishart should not be involved in
the investigation, solicitors acting on behalf of the Trust wrote a letter to her
solicitors dated 24 February 2011 in which they undertook that Mr Wishart would
take no part in the investigation.
22. Dr Taylor carried out her investigation, which included an interview with
Dr Chhabra. Unknown to Dr Chhabra, Dr Taylor communicated with Mr Wishart
during the investigation. In an email to him dated 29 March 2011, Dr Taylor
recorded that Dr Chhabra had admitted the breach of patient confidentiality on the
train journey on 24 November 2010 (allegation (1) in para 21 above) and
expressed the view that “she was unlikely to make the same mistake again”. More
significantly, Dr Taylor sent Mr Wishart a draft of her report and Mr Wishart
prepared suggested amendments to the draft. The amendments, which were
extensive, had the effect of stiffening the criticism of Dr Chhabra. Dr Taylor
accepted some of the suggested amendments but not others. Among those she
accepted was the characterisation as “serious” of breaches of confidentiality she
had described in her report.
23. In June 2011 Dr Taylor completed and signed her report. She found that Dr
Chhabra had breached patient confidentiality by having patient documents clearly
visible in a public environment during the train journey on 24 November 2010 and
by dictating reports, which included patient sensitive information, on a train on
other occasions. She recorded Dr Chhabra’s admission of those breaches. Her
report also recorded Dr Chhabra’s unchallenged account that she had not
appreciated at the time that her practice compromised patient confidentiality and
that she believed that she had ensured that no other passengers were close by when
she dictated the reports. Dr Taylor also reported on an allegation by Dr Chhabra’s
former secretary, which had not been expressly included in her terms of reference,
that she had made telephone calls when travelling by train to work in which she
had discussed patient information. Dr Taylor did not make any finding on the
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accuracy of this allegation but recorded that there was a difference of opinion
between Dr Chhabra and her secretary. In relation to the third concern (in para 21
above), Dr Taylor stated that there were difficulties within Dr Chhabra’s clinical
team which were issues of capability that needed to be addressed. She concluded
that the fourth issue, the solicitor’s complaint, did not have merit.
24. On 12 August 2011 Dr Broughton wrote two letters to Dr Chhabra’s
solicitors. In one, he informed her that he regarded the concerns about her team
working to be matters of capability. He said that he intended to seek the guidance
of the NCAS on whether an assessment was needed or whether the Trust would be
justified in proceeding to a capability hearing. In the other letter, Dr Broughton
stated that the breaches of confidentiality set out in the investigation report were
potentially very serious allegations of misconduct which fell within para 8.4 (sic)
of policy D4, and he quoted an extract from para 13.4.1 of the January 2011
revision of policy D4 (para 10 above). The charges which he proposed to put to a
disciplinary panel included not only the admitted breaches of confidentiality but
also (i) the allegation, on which Dr Taylor had noted there had been a conflict of
opinion, that Dr Chhabra, while travelling by train, had telephoned her secretary to
discuss patient-related information, and (ii) an allegation, which was not within Dr
Taylor’s remit and on which she had not reported, that Dr Chhabra had breached
patient confidentiality by disclosing information via email to her medical
protection society and legal advisers. Dr Broughton expressed the view that the
charges were considered to be potential gross misconduct and that dismissal was a
possible outcome of the hearing before the disciplinary panel. He also stated his
view that the issues of conduct and capability were unrelated and that the conduct
allegations were straightforward and discrete.
25. Dr Chhabra’s solicitors objected to the charge of breach of patient
confidentiality by disclosing information to her protection society and her legal
advisers, which had not been the subject of Dr Taylor’s investigation. At their
request, the Trust agreed to instruct Dr Taylor to investigate that allegation. Dr
Taylor carried out this further investigation and reported that there was no
complaint to answer. As a result, on 17 January 2012 Dr Broughton informed Dr
Chhabra by letter that that charge would not be pursued at the disciplinary hearing.
26. On 22 December 2011 the Trust referred the teamwork issues (the third
matter in para 21 above) to the NCAS. Dr Chhabra invoked the Trust’s grievance
procedure to complain about the decision to deal with the breaches of
confidentiality in advance of the NCAS assessment. Mr Wishart prepared the
management case for the grievance hearing. Dr Chhabra’s grievance was not
upheld on first consideration. The panel accepted that there was a possible
relationship between the conduct and capability matters but concluded that issues
of capability could be presented in mitigation at a conduct hearing. It concluded
that the decision to separate the conduct matters from the capability matters was
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appropriate and necessary. She appealed that decision but her grievance appeal
was rejected by letter dated 29 February 2012. The appeal panel concluded that it
was necessary to deal with the conduct matters separately because they were
discrete and needed to be determined, whatever was the outcome of the capability
process.
27. On 6 February 2012 a case conference was held to consider the Trust’s
capability concerns. The Trust, Dr Chhabra and the NCAS entered into a tripartite
agreement under which the Trust referred its concerns to the NCAS for an
assessment. Meanwhile, the disciplinary process continued on a separate track. A
conduct hearing was fixed for 9 March 2012, but that hearing was discharged after
Dr Chhabra sought declaratory and injunctive relief from the High Court on 2
March 2012. That started the legal process which has led to this appeal.
The legal proceedings
28. On 1 June 2012 Judge McMullen QC, sitting as a judge of the High Court,
granted Dr Chhabra a declaration and injunctive relief, preventing the disciplinary
panel from investigating the confidentiality concerns as matters of gross
misconduct under the Trust’s disciplinary policy. The judge held that Dr
Broughton had failed to re-assess the gravity of the charges after he received Dr
Taylor’s second report. The Trust had erred and had breached its contract with Dr
Chhabra in treating the matters as gross misconduct for which she could be
dismissed. He also held that Dr Broughton had broken the contract by referring to
the conduct panel charges which were not grounded in Dr Taylor’s report. The
judge also held that the Trust was bound to deal with the matters through the
capability procedures under para 4.5 of policy D4A. He expressed the view that,
as Dr Chhabra had admitted her mistakes, the case cried out to be dealt with under
the “fair blame” procedure.
29. On 25 January 2013 the Court of Appeal (Pill, Jackson and Treacy LJJ)
upheld the Trust’s appeal and set aside the order of the judge at first instance. The
court held that policies D4 and D4A should be read together and that the
applicable rules and procedures had contractual force. The Trust had a discretion
whether to combine capability and conduct issues under para 4.5 of policy D4A.
Use of the “fair blame” procedure was encouraged but the Trust had a power to
refer disciplinary matters to a conduct panel. The case investigator’s role was to
establish and report the available evidence. The case manager in deciding what
action to take was not confined to the findings of fact of the case investigator but
could consider complaints supported by evidence reported by the case investigator,
even if denied by the practitioner. The conduct panel would resolve issues of
disputed fact. It was the task of the case manager to exercise judgement as to the
seriousness of the misconduct, having regard to the evidence reported and findings
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made by the case investigator. The central question was whether the case manager
was justified in the circumstances in convening a disciplinary hearing. The court
concluded that Dr Broughton was entitled to regard the breach of confidentiality as
a potentially serious offence and as a result was justified in deciding to convene
the conduct panel. Dr Chhabra appeals to this court.
Discussion of the legal challenges
30. The first and most significant issue is the roles of the case investigator and
the case manager. The procedures, which MHPS envisaged and which the Trust
has set out in policy D4A and the amended policy D4, do not give the case
investigator a power to determine the facts. This is, as I have said (paras 16 and 17
above), radically different from the role of the investigating committee under
circular HC(90)9. The aim of the new procedure is to have someone, who can act
in an objective and impartial way, investigate the complaints identified by the case
manager to discover if there is a prima facie case of a capability issue and/or
misconduct. The case investigator gathers relevant information by interviewing
people and reading documents. The testimony of the interviewees is not tested by
the practitioner or his or her representative. In many cases the case investigator
will not be able to resolve disputed issues of fact. He or she can only record the
conflicting accounts of the interviewees and, where appropriate, express views on
the issue. Where, as here, the practitioner admits that she has behaved in a certain
way or where there is otherwise undisputed evidence, the case investigator can
more readily make findings of fact.
31. If the case investigator were to conclude that there was no prima facie case
of misconduct, there would normally be no basis for the case manager to decide to
convene a conduct panel. But if the report recorded evidence which made such a
finding by the case investigator perverse, the case manager would not be bound by
that conclusion. Where the case investigator’s report makes findings of fact or
records evidence capable of amounting to misconduct, the case manager may
decide to convene a conduct panel. The case manager can make his or her own
assessment of the evidence which the case investigator records in the report. The
procedure before the panel enables the practitioner to test the evidence in support
of the complaint and any findings of fact by the case investigator.
32. It would introduce an unhelpful inflexibility into the procedures if (i) the
case investigator were not able to report evidence of misconduct which was closely
related to but not precisely within the terms of reference (as in the former
secretary’s allegations) or (ii) the case manager were to be limited to considering
only the case investigator’s findings of fact when deciding on further procedure.
Similarly, it would be unduly restrictive to require the case manager to formulate
the complaint for consideration by a conduct panel precisely in the terms of the
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case investigator’s report. I do not interpret MHPS or the Trust’s policies in D4
and D4A as being so inflexible or restrictive. The case manager has discretion in
the formulation of the matters which are to go before a conduct panel, provided
that they are based on the case investigator’s report and the accompanying
materials in appendices of the report, such as the records of witness interviews and
statements. But the procedure does not envisage that the case manager can send to
a conduct panel complaints which have not been considered by the case
investigator or for which the case investigator has gathered no evidence. Thus I
consider that the Trust was correct in acceding to Dr Chhabra’s request for a
second report from Dr Taylor in relation to the new allegation of breach of
confidentiality in her communications with the protection society and her
solicitors.
33. In reaching this view, I am in general agreement with the judgment of the
Court of Appeal. I also agree with the Court of Appeal that Dr Broughton would
have been entitled to take the view that there was evidence in Dr Taylor’s report
which could amount to serious misconduct and that he could properly have
convened a conduct panel on that basis. There is no doubt that patient
confidentiality is an overriding principle and is central to trust between patients
and doctors (General Medical Council, Good Medical Practice (2006) page 5 and
paras 21 and 37, Guidance on Confidentiality (2009), para 6). In my view the
evidence in Dr Taylor’s report on the matters (1) and (2), which I set out in para 21
above, was capable of supporting a complaint of serious misconduct.
34. Where I respectfully differ from the Court of Appeal is that I consider that
there have been a number of irregularities in the proceedings against Dr Chhabra
which cumulatively render the convening of the conduct panel unlawful as a
material breach of her contract of employment. I have four concerns about the
procedure which the Trust followed.
35. First, I do not think that the findings of fact and evidence, which Dr Taylor
recorded, were capable when taken at their highest of supporting a charge of gross
misconduct. Paragraph 13.4.1 of policy D4 speaks of conduct so serious “as to
potentially make any further relationship and trust between the Trust and the
employee impossible.” This language describes conduct which could involve a
repudiatory breach of contract: Dunn v AAH Ltd [2010] IRLR 709, para 6; Wilson
v Racher [1974] ICR 428. There is no material in Dr Taylor’s report to support the
view that the breaches of confidentiality which she recorded, including the former
secretary’s allegations, were wilful in the sense that they were deliberate breaches
of that duty. In my view they were qualitatively different from a deliberate breach
of confidentiality such as speaking to the media about a patient.
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36. Secondly, in reaching the view that Dr Chhabra’s behaviour could amount
to gross misconduct, Dr Broughton founded on the words added to para 13.4.1
with effect from 28 March 2011, after the incidents in this case. The list of
misconduct in para 13.4.1 comprised only typical examples of what the Trust saw
as amounting to gross misconduct and was not a comprehensive statement of the
concept. But Dr Broughton relied on the amended provision in support of his view
that the complaints might amount to gross misconduct and quoted it in his letter of
12 August 2011 relating to the disciplinary procedure (para 24 above).
37. Thirdly, I consider that the Trust breached its contract with Dr Chhabra
when Mr Wishart continued to take part in the investigatory process in breach of
the undertaking which the Trust’s solicitors gave in their letter of 24 February
2011 (para 21 above). In particular, when Mr Wishart proposed extensive
amendments to Dr Taylor’s draft report and Dr Taylor accepted some of them,
which strengthened her criticism of Dr Chhabra, the Trust went outside the agreed
procedures which had contractual effect. Policies D4 and D4A established a
procedure by which the report was to be the work of the case investigator. There
would generally be no impropriety in a case investigator seeking advice from an
employer’s human resources department, for example on questions of procedure. I
do not think that it is illegitimate for an employer, through its human resources
department or a similar function, to assist a case investigator in the presentation of
a report, for example to ensure that all necessary matters have been addressed and
achieve clarity. But, in this case, Dr Taylor’s report was altered in ways which
went beyond clarifying its conclusions. The amendment of the draft report by a
member of the employer’s management which occurred in this case is not within
the agreed procedure. The report had to be the product of the case investigator. It
was not. Further, the disregard for the undertaking amounted to a breach of the
obligation of good faith in the contract of employment. It was also contrary to
para 3.1 of policy D4 as it was behaviour which the objective observer would not
consider reasonable: Dr Chhabra had an implied contractual right to a fair process
and Mr Wishart’s involvement undermined the fairness of the disciplinary process.
38. Fourthly, Dr Broughton did not re-assess the decision in his letter of 12
August 2011 that the matters were considered as potential gross misconduct after
he departed from the additional complaint once he had received Dr Taylor’s
second report. In my view he was obliged to do so under para 3.1 of policy D4: an
objective observer would not consider it reasonable to fail to do so.
39. I am persuaded that the cumulative effect of those irregularities is that it
would be unlawful for the Trust to proceed with the disciplinary procedure and
that the court should grant relief. As a general rule it is not appropriate for the
courts to intervene to remedy minor irregularities in the course of disciplinary
proceedings between employer and employee – its role is not the “micromanagement” of such proceedings: Kulkarni v Milton Keynes Hospital NHS
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Foundation Trust [2010] ICR 101, para 22. Such intervention would produce
unnecessary delay and expense. But in this case the irregularities, particularly the
first and third, are of a more serious nature. I also bear in mind that any common
law damages which Dr Chhabra might obtain if she were to succeed in a claim
based on those irregularities after her employment were terminated might be very
limited: Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2
AC 22 and Geys v Société Générale [2013] 1 AC 523, para 73, Lord Wilson.
40. I do not think that the second irregularity on its own could have justified
this court’s intervention. I have some doubt whether the fourth irregularity, if it
were the only complaint, would in the circumstances have justified injunctive
relief. I acknowledge that Dr Chhabra did not plead Mr Wishart’s involvement as
a ground of her challenge to the decision either at first instance or in the Court of
Appeal. Had this been the only successful ground of challenge, I would have
viewed it as coming too late as the Trust might have led different evidence in
answer before Judge McMullen. But the categorisation of Dr Chhabra’s conduct
as gross misconduct is itself a sufficient ground for injunction. Further, the facts
relating to Mr Wishart’s involvement were before Judge McMullen, and in the
Court of Appeal Pill LJ discussed them in para 62 of his judgment. Where I differ
from the judge at first instance is that, like the Court of Appeal, I do not consider
Mr Wishart’s involvement to be a “minor” irregularity. Where I differ from the
Court of Appeal, is that I do not think that Dr Taylor’s acceptance of some of his
suggested amendments and her good faith materially reduce the seriousness of the
procedural irregularity.
41. I deal briefly with three further submissions which Mr Sutton advanced on
behalf of Dr Chhabra. First, I consider that the Trust was not obliged to consider
the operation of the “fair blame” procedure in appendix 5 of policy D4 (para 10
above) because the Trust was entitled to view the allegations against Dr Chhabra,
if established, as constituting serious misconduct. Secondly, the Trust had a
discretion under para 4.5 of policy D4A (para 15 above) whether to combine issues
of capability and conduct in a capability hearing. The Trust’s decision that it was
appropriate to convene a conduct panel for the discrete complaints about Dr
Chhabra’s conduct was within its discretion. I construe the guidance in that
paragraph, when it speaks of there being occasions when “it is necessary to pursue
a conduct issue separately”, as referring to what is appropriate in the circumstances
rather than a test of strict necessity. Such a test would not be consistent with the
subsequent reference to the Trust deciding upon “the most appropriate way
forward”. It is not necessary for me to decide whether these clauses are apt for
incorporation into the contract of employment or are mere guidance. Thirdly, I
consider the irregularity of the proposed inclusion of the additional complaint in
the reference to the conduct panel (para 24 above) was cured by the Trust’s
decision on 17 January 2012 not to pursue that complaint.
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42. I would allow the appeal and substitute for Judge McMullen’s orders an
order restraining the Trust from (a) pursuing any of the confidentiality concerns
contained in the Trust’s letter of 12 August 2011 as matters of gross misconduct
and (b) pursuing any confidentiality concerns without first re-starting and
completing an investigation under its policy D4A.
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