In Hussain v Surrey and Sussex Healthcare NHS Trust 2011 Dr H, a consultant paediatrician employed by Surrey and Sussex Healthcare NHS Trust (the Trust), claimed that the Trust unreasonably pursued a conduct investigation where there were matters of both conduct and capability. This was contrary to the Trust’s disciplinary procedure that mirrored Maintaining High Professional Standards in providing that, if a case covered more than one category of problems, the issues should usually be combined under the umbrella of a capability hearing.

The court determined that the conduct and capability issues should have been combined in a capability hearing in accordance with the Trust’s disciplinary procedures, which were held to have contractual status.