In two separate cases recently the High Court found that certain provisions of employers’ disciplinary policies which mirrored the procedures found in Maintaining High Professional Standards in the Modern NHS (‘MHPS’) were incorporated in the contracts of employment of clinical staff and had been breached. In both cases practitioners had applied to court for an injunction to prevent their respective Trust employers from continuing with disciplinary action without following the steps prescribed by the relevant policies.
The first case was Hussain v Surrey and Sussex Healthcare NHS Trust (5 July 2011).
Following concerns about the way the claimant had managed the care of a baby who had been admitted to the hospital, the claimant was excluded from work on 18 November 2010 on the basis of concerns about her capability. That immediate exclusion was reviewed on 6 December and extended. Then on 13 December the claimant was formally excluded for an initial period of four weeks, again on the basis of concerns about her capability. That exclusion was extended on 10 January and continued, without review, until the time of the High Court hearing some six months later.
The High Court ruled that, under the employer’s disciplinary procedure (which mirrored MHPS):
- exclusion could only be used to protect the interests of patients or other staff pending the outcome of a full investigation and/or to assist the investigative process when there is a clear risk that a practitioner’s presence would impede the gathering of evidence;
- exclusion should not be for more than four weeks at a time and should be reviewed regularly and before any exclusion is extended for a further four weeks; and
- full consideration should be given to whether the practitioner could continue in or return to work in a limited capacity or an alternative role pending the resolution of the case.
Looking at the facts of the case the Court found that the Trust had not given any real consideration to whether the restrictions on the claimant were justified by the circumstances of her case, either when it ordered her immediate exclusion or when subsequently formally excluding her. The Trust had, therefore, acted in breach of contract in excluding the claimant and imposing as extensive restrictions as it did. Furthermore, the Trust was also in breach of contract in continuing the exclusion beyond 10 January 2011 without review.
Conduct or capability?
The High Court also concluded that the Trust had wrongly classified certain allegations made against the claimant as matters of conduct rather than concerns going to capability. These included allegations of failing to act on concerns raised by social services and the police and failing to advise the Trust of correspondence received from the GMC. In neither case was there any suggestion that these failings involved dishonesty or impropriety.
Although the Court accepted that it was for the Trust to determine which allegations were properly regarded as conduct issues, that decision must not be arbitrary, capricious or one that no reasonable employer would reach. On the facts, the Court decided no reasonable employer would have classified certain of the allegations as misconduct rather than capability matters, given that there was no suggestion of dishonesty or lack of probity. That being the case, it would be a breach of contract to deal with those allegations under the Trust’s misconduct procedure rather than under the MHPS-compliant capability procedure.
Reference to NCAS
In the second case, Lim v Royal Wolverhampton Hospitals NHS Trust (10 August 2011), the Trust sought to proceed to a capability hearing without the National Clinical Assessment Service (NCAS) first having carried out an assessment.
The High Court (under a different judge) ruled that the Trust was contractually obliged to refer concerns about the claimant’s capability to NCAS for it to consider whether an assessment should be carried out; the case manager can then only decide that the case should be determined under the capability procedure if the advice of the NCAS assessment panel is that the practitioner’s performance is so fundamentally flawed that no educational and/or organisational action plan has any realistic chance of success. NCAS had not given such advice in this case; so proceeding to a capability hearing would be in breach of contract.
Whether other practitioners enjoy the same protections as the claimants in these cases will depend on the terms of their individual contract of employment. Both Dr Hussain and Dr Lim were engaged on contracts that incorporated disciplinary procedures mirroring those found in MHPS. Given that directions given by the Secretary of State for Health required English NHS bodies (although not Foundation Trusts) to adopt MHPS, practitioners employed by non Foundation Trusts in England will generally have a good case for arguing that their employer must, under the terms of their contract, comply with the minimum standards set out in the framework, even if the employing organisation has not expressly adopted contractual policies that mirror the framework. Practitioners in Foundation Trusts will be in a similar position if their employer has chosen to incorporate MHPS compliant processes in their contract of employment. It follows that the cases outlined above will be of broad application.
The cases illustrate the care that needs to be taken when dealing with disciplinary matters under MHPS. As the Hussain case shows, exclusion should not be seen as an automatic response to concerns, no matter how serious those concerns may seem. Real thought has to be given to any decision to exclude, including whether there are any viable alternatives. And once taken, an exclusion decision should be regularly reviewed. Employers also need to take care when deciding whether a concern relates to conduct or capability. And, finally, it seems that however serious the allegations, unless NCAS advise that an action plan would be pointless it will not be possible to proceed without an NCAS assessment.