Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust

By an agreement made in writing on 3 February 1998 (Footnote: ¹) Dr Raj Mattu, the Claimant, was employed by the Defendant, the University Hospitals of Coventry and Warwickshire NHS Trust, as a consultant in non-invasive cardiology and general medicine. That agreement is the foundation of this case which has been heard by way of a speedy trial over five days.

The heart of Dr Mattu’s case is that his dismissal on 30^th November 2010 (Footnote: ²) can, given claimed breaches of that agreement, be avoided by this court. Mr John Hendy QC on behalf of Dr Mattu argues that important procedural safeguards incorporated, he says, into the agreement were not met enabling me, although not concerned with the underlying merits of the matter, to set aside the dismissal.

A considerable history attaches to Dr Mattu’s employment and there were many communications both before and after the dismissal. Consequently, there is considerable documentation, which I have sought in certain instances to reference in footnotes. I should emphasise, however, that much of it although taken into account is unnecessary to be mentioned.

The broad history of Dr Mattu’s employment with the Trust is as follows. He, Dr Mattu, having specialised in cardiology, was appointed to the consultant post in question in 1998. In 2002 he was suspended from his post on disciplinary grounds with which I am not concerned. However, the relevant disciplinary hearing did not occur until 2007 and the suspension was in place until July 2007.

Unfortunately Dr Mattu’s health is and has for some time been poor. The precise consequences of this poor health are not for me to judge save that I note that the consequences of Dr Mattu’s condition vary from time to time. Such variations may be occasioned by, amongst other things, stress, the character of any treatment received or the influence of infections. Dr Mattu was on sick leave for at least a year from September 2006. (Footnote: ³)

The upshot of the disciplinary proceedings was that by a letter dated 15 April 2008 Dr Mattu was given a first warning to last for six months and backdated to 1 January 2008.

It was apparent by July 2007 that it would not be desirable, despite the lifting of the suspension, for Dr Mattu immediately to return to clinical or professional duties. A medical practice demands that it should be practised and the suspension had prevented that for five years. Dr Mattu is not alone in having his practice impeded in such a way and the National Clinical Assessment Service have produced a document, ‘Back on Track’, (Footnote: ⁴) which deals with the restoration of medical practitioners to work. The document distinguishes between – although there are likely to be overlaps – remediation, rehabilitation and reskilling. The latter, it indicates, may follow suspension and has, as its purpose, the provision of an opportunity to return to safe practice.

Accordingly, reskilling was arranged for Dr Mattu but, unhappily, it is this process which led to Dr Mattu’s dismissal in November 2010. In short the parties fell out over the question of reskilling and Dr Mattu declined to sign an action plan in connection with the provision of reskilling. He thought that reskilling should have an additional six months connected to research with the possibility that such six months be spent in the United States of America.

Following the dismissal a number of things have happened. First, an appeal has been made against the dismissal to a panel appointed by the Trust, which panel is empowered to review the dismissal proceedings. That panel met on 9 May 2011 and 13 May 2011. It stands adjourned until 20 September 2011. Second, Dr Mattu has initiated, (Footnote: ⁵) as he told me in evidence, proceedings in an employment tribunal for unfair dismissal, race discrimination, disability discrimination and, what is informally called, whistle blower discrimination. More formally the last mentioned is protective disclosure.

Third, these High Court proceedings were initiated on 6 May 2011, when, amongst other things, a speedy trial was sought. It is that speedy trial I have heard. This included written and oral evidence from Dr Mattu and his general practitioner Dr Buckley and written evidence from Professor Petros Nihoyannopoulos and Dr Hardial Singh who played a role in the reskilling process. On the part of the Trust I received written and oral evidence from Mr Hardy, the Chief Executive who took the decision to dismiss Dr Mattu, from Mr Andrew McMenemy, Assistant Director of Human Resources, Mr Ian Crich, Chief Human Resources Officer and written evidence from Miss Donna Howard, Associate Director of Human Resources and Mr Richard Kennedy, the Chief Medical Officer. There has also been admitted into evidence a large quantity of documents in some nine files. I also have four bundles of authorities. Ultimately, as it seems to me, only a limited number of these authorities need mention within this judgment. I have, of course, closely considered those other judgments cited to me.

In order to hold the post to which he was appointed, Dr Mattu needed to be, and was, registered with the General Medical Council under the Medical Act 1983. As is well known the General Medical Council is responsible for the registration of medical practitioners. Dr Mattu continues to be a fully registered medical practitioner and his name also appears on the relevant specialist register. Those matters are unaffected by the history I have recorded. They only stand to be affected if the General Medical Council, according to their procedures, which are laid down in primary and secondary legislation, (Footnote: ⁶) take action.

Mr Hendy has to found his case on the written agreement between the parties. He seeks to do so in the following way. He submits that by a procedure incorporated into the agreement the Trust was required in the circumstances of the case to seek, during the investigation of Dr Mattu, independent professional advice and that the Chief Executive, who considered the question of dismissal, should in his deliberations have had the benefit of a medically qualified member who was independent of the Trust.

He also submits, founding himself again on the agreement, that an incorporated term required the seeking by the Trust of advice from the National Clinical Advisory Service. Further, he maintains that the Trust was in breach of contract by not adjourning the misconduct hearing which led to Dr Mattu’s dismissal on the 30^th November 2010.

A distinct case is also maintained on the basis of the Human Rights Act 1998. It is said, uncontroversially, that the Trust is a public authority within the Act. It is then said that the process by which Dr Mattu was dismissed and his appeal from it constitute a determination of a civil right possessed by Dr Mattu so as to provide him with the protection given by article 6 of the European Convention on Human Rights as scheduled to the 1998 Act.

I deal first with the contractual claim having in mind that the evidence before me deals with both cases.

The agreement (Footnote: ⁷) proceeded as follows. The post was entitled consultant. It was accountable for managerial purposes to the Chief Executive. Provision was made by clause 1 for pay with clause 2 dealing with conditions of service. The general conditions of service, other than those stated elsewhere in the agreement, were to be in accordance with nationally agreed conditions of service for consultant medical staff in the National Health Service as approved by the Secretary of State and amended from time to time. The post was also subject to locally agreed conditions of service and policies including grievance and disputes procedure.

Clause 3 of the agreement provided for the commitment given by Dr Mattu. His base headquarters were the Walsgrave Hospital and the Coventry and Warwickshire Hospital. A session commitment was identified and duties assigned for the purpose of providing health services under the National Health Service Acts. These were, as agreed by Dr Mattu, clinical services.

It is convenient to note at this stage that a separate agreement was entered into with Warwick University. This was an honorary post providing for research at Warwick University. This arrangement as Mr Crich said in evidence is something of a commonplace in the National Health Service.

Clause 5 of the agreement with the Trust provided for a limitation on private practice, clause 6 with notice, clause 7 with registration with the General Medical Council and clause 8 required Dr Mattu’s residence to be equipped with a telephone and no more than 20 miles from his base hospital where, so the agreement said, his principal duties lay.

Clause 9 of the agreement dealt with discipline and provided that in matters of misconduct Dr Mattu would be subject to the Trust’s procedures and policies relating to discipline and dismissal. The same clause also provided that the Trust would take account of guidance laid down in a health circular referenced HC(90)9 (Footnote: ⁸) as that related to disciplinary procedures for hospitals and community medical and dental staff when such guidance was appropriate to the employment of consultant staff with the Trust.

As it happens in 2005 the Secretary of State withdrew HC(90)9, a circular which had preceded the establishment of NHS trust hospitals, and demanded that all National Health Service bodies comply with a framework called “Maintaining High Professional Standards in the Modern NHS”. This is known as MHPS. (Footnote: ⁹) The withdrawal of HC(90)9 means, in terms of the agreement, that it could no longer be appropriate as guidance to the employment of consultant staff with the Trust.

I note, incidentally, that Mr John Cavanagh QC for the Trust observed that when the High Court claim started it took as its leading point reliance upon HC(90)9. Such reliance was clearly misplaced and is not now pursued. However, I do not consider that the false step of reliance upon HC(90)9 provides any particular assistance to the Trust’s case on the agreement.

Clause 9, as stated earlier, provided that Dr Mattu would be subject to the Trust’s procedures and policies relating to discipline and dismissal. These procedures and policies are contained in two documents namely, the Procedure for Conduct and Capability Concerns in relation to Medical and Dental staff and the Disciplinary and Appeals Procedure. (Footnote: ¹⁰) The documents clearly reflect MHPS.

Accordingly, it is through clause 9 that the parties agree that, in so far as the documents are to be taken as contractual, they are incorporated into the agreement. I use that particular language because Mr Cavanagh pointed out that when such documents are incorporated into a contract of employment not everything contained within them is necessarily apt to be a contractual term. I certainly agree with that observation but I do not consider it of any particular consequence for this case as the text under consideration in the relevant documents is not submitted to be of a character inapt to be incorporated into a contract of employment.

Further provisions of the agreement dealt with non NHS services, medical audit, notification of absence and confidentiality. In respect of notification of absence it can be noted that notification had to be given of the desire to take annual leave, which was subject to approved arrangements for Dr Mattu’s work being done in his absence following consultation with his clinical director.

It is apparent that, quite apart from the agreement referring to certain disciplinary procedures, the agreement did not expressly contain all the terms which governed the relationship between the Trust as employer and Dr Mattu as employee. For instance, it is agreed between the parties, and I consider such to be the case, that there was an implied term, to give efficacy to the agreement, to the effect that Dr Mattu would carry out the reasonable requirements of the Trust, his employer.

The documents, relating to discipline, incorporated through clause 9 (as identified earlier) are the Procedure for Conduct and Capability Concerns in Relation to Medical and Dental staff and the Disciplinary and Appeals Procedure. The former recorded a commitment on the part of the Trust to ensure that concerns in relation to the conduct and capability of doctors were dealt with in a fair and consistent manner in line with the framework in MHPS. (Footnote: ¹¹) Serious concerns had to be registered with the Chief Executive who had to ensure that a case manager was appointed. The case manager should, it was said, explore with NCAS the possible ways of dealing with the issue. (Footnote: ¹²)

If a formal route needed to be followed, possibly leading to conduct proceedings, the Medical Director had after discussion between the Chief Executive and the Director of Human Resources to appoint a case investigator. (Footnote: ¹³) He was to be responsible for leading the investigation into allegations or concerns about a practitioner and had formally to involve a senior member of the medical staff where a question of clinical judgment was raised during the investigation process.

The case investigator, it is said, (Footnote: ¹⁴) has discretion as to how the investigation is carried out with the purpose being to ascertain the facts in an unbiased manner. If, it is said, the case involves more complex clinical issues than first expected the case manager should arrange for a practitioner in the same specialty and same grade from another NHS body to assist. (Footnote: ¹⁵)

The document (i.e. the Procedure for Conduct and Capability Concerns) under the heading ‘Conduct and Disciplinary Matters’ states that misconduct issues for doctors as for all other staff groups were dealt with under the Trust’s disciplinary procedure. (Footnote: ¹⁶) If, it states, the alleged misconduct relates to matters of a professional nature or an investigation identifies issues of professional conduct the case investigator must obtain appropriate independent professional advice. The document continues by stating that where a case involving issues of professional conduct proceeds to a hearing under the Trust’s disciplinary procedure the panel must include a member appointed by the Local Negotiating Committee who is medically qualified and who is not employed by the Trust. (Footnote: ¹⁷)

The other document incorporated into the agreement is the Disciplinary and Appeals Procedure. (Footnote: ¹⁸) This is said to relate to all employees. However, it adds, for medical staff, any issues not relating to personal conduct will be dealt with in accordance with the Trust’s Procedure for Conduct and Capability Concerns in Relation to Medical and Dental Staff. It can here be noted that appeals are provided for with identified grounds of failure to follow procedure, inequity of treatment, unreasonable decision in the circumstances or new evidence coming to light. (Footnote: ¹⁹)

Accordingly, the incorporated documents reveal procedural differences for doctors subject to disciplinary process dependent on the categorisation of the case. Professional issues are dealt with differently from personal issues.

Although MHPS (Footnote: ²⁰) does not form part of the written agreement it plainly informed those two documents which are incorporated into the agreement. Accordingly, it is worthwhile saying something of it.

As I have previously remarked MHPS replaced HC90(9). That circular had distinguished between professional conduct and personal conduct. However, MHPS states that the distinction between personal and professional misconduct is abolished. (Footnote: ²¹) Further, MHPS emphasises that disciplinary matters should be dealt with internally and not involve outsiders. (Footnote: ²²) None the less MHPS does recognise that some misconduct might relate to matters of a professional nature. (Footnote: ²³) Accordingly, a difference in procedure is contemplated for matters of a professional nature from other matters. This difference was carried through into the incorporated documents in the way I have explained.

I consider that the steps taken by the Trust followed rather than departed from the terms of the agreement. The steps taken and their alignment with the terms of the agreement can be taken, in large measure, from the report, dated 15^th July 2010, by Mr John Mockler. (Footnote: ²⁴) He records that he was, on 18^th December 2009, appointed by Professor Steve Thornton in his capacity as case manager to be the case investigator into alleged conduct by Dr Raj Mattu. He received papers from Professor Thornton who, before Mr Mockler had completed his investigation, provided, on 22^nd April 2010, further documentation relating to a third allegation.

Mr Mockler was plainly aware of both the incorporated documents and MHPS as he stated that he had prepared his report and conducted his investigation in accordance with the former which reflected, he observed, the provisions in the latter. He identified the purpose of his investigation as to establish facts and report his findings to Professor Thornton. He indicated that he had not, owing to a series of factors, which he detailed, completed his investigation in four weeks as the procedure requires. In fact, as he says, he took seven months. The delay was attributable to a failure on the part of Dr Mattu to co-operate and his subsequent ill health.

Unfortunately, as stated, Dr Mattu does suffer from ill health. Dr David Buckley, who gave evidence, is both a friend of Dr Mattu and his general practitioner who has, in respect of his medical conditions, been treating Dr Mattu since 1999. The precise character of the ill health was not a matter of agreement between the parties. I shall have to say a little more about it later but, for the moment, it can be observed that Dr Mattu’s ill health has impeded his career.

Mr Mockler recited in his report the allegations made against Dr Mattu. They are central to the case I am deciding and accordingly I shall, in a moment, set them out. However, before I do so I emphasise that the allegations are central to the case not because of any underlying merit or demerit in them but because the question of their categorisation is vital in determining whether there has been a breach of the disciplinary process incorporated by reference into the written agreement.

The three allegations as recorded by Mr Mockler are as follows.

First, repeatedly refusing to comply with the reasonable requirements of your employer by refusing to sign the Action Plan and failing to co-operate with the re-skilling process; refusing to accept or to comply with reasonable instructions given to you by Mr Kennedy; and acting in such a way as to render yourself unmanageable.

Second, [the] leaking of confidential information about the Trust and its employees and/or the making of false allegations about the Trust and its employees to the broadcast media, press or other third parties (whether directly or indirectly).

Third, during a period of extended sick leave, whilst you represented to the Trust that your illness was “severe” and that you were unable to attend investigation meetings or attend the Trust for an Occupational Health review, you attended at a series of social events on consecutive evenings [and] your attendance at future events was advertised. You have, therefore, deliberately misrepresented the severity and effect of your illness to the Trust and to those managing the investigation process. In so doing, your conduct is such as to amount to a breach of your duty of fidelity to the Trust, as your employer, and seriously damages the trust and confidence that should exist between you and the Trust.

In order to provide more context for the allegations I have set out in a schedule to this judgment the chronology that Mr Mockler prepared for his report. In this paragraph I set out just a few steps from it.

The parties identified agreed wording as to the issue which arises in this court. It is whether Mr Hardy had, in the circumstances, the entitlement under the contract and in the light of article 6 to dismiss Dr Mattu. The Court, the parties agreed, did not have to decide whether Dr Mattu was guilty of the disciplinary allegations with which he was charged or whether the allegations merited any sanction.

Accordingly, I first proceed to consider whether the first allegation was incorrectly categorised. Was it a matter falling within that class of issues for which the contract of employment demanded the participation of an external, medically qualified person and panel member?

I do not consider it should have been so classified. On the contrary I consider it was correctly classified. First, the exercise of reskilling was an exercise, whatever its ingredients, designed to secure or facilitate a return to work. In other words the process did not involve the exercise by Dr Mattu of his professional skills whether by treating, teaching or researching but rather it was an exercise whereby Dr Mattu could come to do those things. This is consistent with the Back on Track Framework (Footnote: ²⁵) produced by the NCAS, which framework seeks to restore practitioners to safe and valued practice.

Second, the allegation on its face is nothing to do with the exercise of professional skills by Dr Mattu. It is a refusal to comply with reasonable requirements, a failure to comply with reasonable instructions and acting in an unmanageable way. Mr Hendy argues that the allegation involves consideration of the nature and scope of Dr Mattu’s role as a consultant cardiologist, whether his reskilling in matters of research was appropriate, whether the proposal to restrict the nature of reskilling was appropriate and whether refusal to sign an action plan to reskill Dr Mattu for his clinical and research duties was reasonable. These related, it is said, to matters of a professional nature, namely the skills needed and appropriate for Dr Mattu’s post. These are, it is said, part of his professional duties.

There are a number of difficulties with this argument. The argument depends on the proposition that an identification of Dr Mattu’s job and consequently what process he needed to undertake before he could do his job constituted a professional issue. However, the management of the hospital knew what Dr Mattu’s job had been and was to be. The identification of it as a consultant cardiologist did not require any medical input. Further, the reskilling was to be undertaken with cardiologists in leading London hospitals. The management knew, indeed it may be thought self evident, that practising, experienced cardiologists in such institutions could provide reskilling.

In any event the cardiology aspects of the reskilling provided no significant difficulties. As Mr Mockler records, in his consideration of the first allegation, initially the dispute related to Dr Mattu’s request to have a six month period of training in the United States at a leading centre to be confirmed. This became a fundamental disagreement as to whether Dr Mattu required a six month period of academic reskilling following the completion of the clinical reskilling.

However, Dr Mattu had been employed by the Trust as a consultant cardiologist to provide services under the National Health Service Acts. These were, in their essentials, clinical services involving, as one might expect for a health service, patients. The agreement with Warwick University was separate from the agreement with the Trust. The ability to perform under it was not coincident with the ability to perform under the agreement with the Trust.

Mr Mockler clearly considered what was being asked of Dr Mattu and what he has been engaged to do. His job plan, as recorded by Mr Mockler, had no time allocated for research. (Footnote: ²⁶)

It seems to me perfectly reasonable for the Trust to be interested in getting Dr Mattu back to work. The Trust was entitled to make reasonable requirements of Dr Mattu and the requirement of Dr Mattu that he be reskilled as a consultant cardiologist for which post he had been engaged without a period for academic reskilling appears perfectly reasonable and rational. Indeed the broad question which Mr Mockler said arose reflected that position and did not involve any clinical input as suggested by Mr Hendy. (Footnote: ²⁷)

Further, the tenor of MHPS, which can aid in the construction of the incorporated documents, was clear. The distinction between personal and professional misconduct, which had been present in HC(90)9, was abolished. Doctors being disciplined for misconduct were to proceed under the same locally based procedures as any other staff member. Misconduct matters for doctors as for other staff groups had to be resolved locally. There was a recognition that if there were matters of a professional nature or issues of professional conduct, appropriate independent professional advice should be sought.

The tenor clearly suggests that what had happened in the past was not going to be a sure guide to the future: HC(90)9 had been withdrawn and a fundamental distinction within it abolished. However, clinical matters, which would generally involve aspects of treatment, might arise for consideration. In such a circumstance what, in effect, would amount to expert evidence would be appropriate for an otherwise non medical process to receive.

In this context I should mention that I consider Mr Hendy’s reliance on Skidmore v Dartford and Gravesham NHS Trust [2003] ICR 721 to have been misplaced. Skidmore’s case is, of course, of the highest authority. However, it was dealing with HC(90)9 and I think that Mr Cavanagh is right when he says the expression ‘issues of professional conduct’ in MHPS is likely to be narrower in ambit than the phrase ‘professional conduct’ in Skidmore’s case.

Indeed Lord Steyn who gave the principal speech in Skidmore’s case drew attention to the fact that work had been done subsequent to HC(90)9 which plainly might, he was talking in 2002, lead to changes.

It should also be noted that Skidmore’s case was factually very different from the circumstances affecting Dr Mattu. An operation performed by Mr Skidmore went wrong and it was alleged Mr Skidmore subsequently misled the patient and her husband. Lord Steyn said the conduct arose from the exercise of medical skills. Mr Skidmore was professing to speak as a medical practitioner about a matter covered by his medical skills.

Accordingly, I do not consider the Trust to have been in breach of contract in their categorisation of the first allegation. The following additional matters may also be mentioned.

Paragraph 3.6 of the Procedure for Conduct and Capability Concerns indicates that it is for the Trust, having consulted NCAS, to decide upon the most appropriate way forward. A practitioner may use the Trust’s grievance procedure if he considers the case has been incorrectly classified. NCAS were alive to the issues being pursued and the manner in which they were being pursued. However, they did not suggest that a different process should be employed. Dr Mattu lodged a grievance in respect of the matters being pursued against him but did not suggest in it that the case had been incorrectly classified. Dr Mattu had representation throughout by an officer of the British Medical Association.

It can also be noted that in accordance with the incorporated documents an appeal can be brought against a decision to dismiss. Such an appeal has been brought and it stands adjourned. However, the appeal panel has dealt with this particular matter of categorisation and has rejected Dr Mattu’s contention.

The other two allegations are said by Mr Hendy arguably to be matters of a professional nature. (Footnote: ²⁸) I have set out the allegations above. They relate to the leaking of confidential information and a misrepresentation as to Dr Mattu’s state of health and consequent ability to participate in the disciplinary process. These matters have nothing to do with clinical matters or Dr Mattu’s activities as a medical man. They have not been mischaracterised by the Trust.

I should note that there is a dispute between the parties as to whether I should determine the correct categorisation or decide whether the categorisation by the Trust was so unreasonable that no reasonable employer could have reached it. Mr Hendy contends for the former. Mr Cavanagh for the latter. In particular, Mr Cavanagh relies on Hussain v. Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670 as supporting the proposition that it was for the Trust to decide upon a categorisation and for me to determine whether or not such decision was reasonable.

I do not devote much time to this dispute. I have, in fact, considered the proper categorisation and arrived at a view. It follows from that view that the Trust could reasonably arrive at the same view. If pressed on the issue as to which approach is correct, I would incline to the approach of Andrew Smith J in Hussain’s case. However, it is not necessary for me, in the circumstances, to express a definite view on this issue.

Accordingly, it follows that, contrary to Dr Mattu’s skeleton argument, the Trust did not breach clause 3.2 of the Procedure by its characterisation of the allegations, by appointing the Chief Executive, Mr Hardy, to hear the matter alone, by not including an independent medically qualified member, by not seeking independent professional advice in respect of the allegations and by not agreeing or discussing the selection of an independent medically qualified panel member with the Local Negotiating Committee.

It should be noted that Mr Mockler conducted his investigation and prepared his report in accordance with the Procedure for Conduct and Capability Concerns in relation to Medical and Dental Staff. (Footnote: ²⁹)

It is complained that there was a breach of contract in not consulting NCAS. Mr Hendy effectively acknowledged that if this matter stood alone Dr Mattu’s case could not succeed. The problem with the argument is that quite apart from any question of obligation there undoubtedly was communication with NCAS. (Footnote: ³⁰)

The next matter of complaint is the failure to adjourn the hearing held by Mr Hardy. This argument proceeds as follows. The argument is that there was a breach of the incorporated documents by persisting in instead of adjourning the hearing. It can be accepted that there was a term of the agreement that the Trust would deal rationally in considering the pursuit of the case. In the present circumstances I take that as an obligation to act fairly on the basis that, in general, it is irrational to act unfairly.

In order to gauge this matter it is necessary to consider what occurred. In respect of this I was advantaged by the evidence of Dr Mattu, Dr Buckley and Mr Hardy. It is quite apparent, without over elaboration, that Dr Mattu viewed the actions of the Trust with extreme suspicion and his friend and G.P Dr Buckley, fuelled by that suspicion, viewed the Trust as, at the lowest, acting through questionable motives.

On the other hand it is clear from the evidence of Mr Hardy, which I accept, that the Trust was anxious to adhere to its procedures and anxious to be as fair as possible to Dr Mattu in circumstances of considerable difficulty, which circumstances were to a considerable extent created by Dr Mattu’s unwillingness to engage in, for example, the Trust’s understandable and reasonable desire to have a report from an occupational health expert. I note that Mr Mockler recorded (Footnote: ³¹) that Dr Mattu had rendered himself unmanageable. I remind myself that I am not concerned with the underlying merits, but Dr Mattu’s evidence as given to me did not serve to undermine Mr Mockler’s point.

The conduct of Dr Mattu restricted the information available to the Trust and allowed Mr Hardy at the time of his final decision to proceed unaware of where Dr Mattu was. This matter was explored in evidence at length. The value of the recitation by me of this material is questionable. The essential point is that the Trust was entitled to ask for an occupational health report to inform its view as to fitness to attend the proceedings. The Trust sought reasonably to get such a report but I find that Dr Mattu sought to avoid meeting the Trust’s request.

I consider it was perfectly rational of Mr Hardy to proceed and that it was not unfair to do so. There was no breach of the implied term of trust and confidence, no breach of the incorporated documents and no irrationality.

Further elaboration can be given in this way. By letter dated 15 November 2010 (Footnote: ³²) Mr Hardy refused a request that the hearing scheduled for 11 November 2010 should be postponed. He wrote to Mr I. Mckivett who, as Dr Mattu agreed, acted on behalf of Dr Mattu in connection with the disciplinary proceedings.

The letter proceeded in the following terms. It treated an email from Mr Mckivett as an application to postpone the disciplinary hearing. The email was dated 8 November and, as the letter recorded, further information had been sought on the 9 November but no substantive response was received. Mr Hardy said that, in fairness he could not delay his decision.

The letter continued by saying that considerable consideration had been given to the matter. Whether or not Dr Mattu could attend Mr Mckivett was welcome to do so. Further, if these matters are not taken into consideration, Mr Hardy was willing to hear representations.

He then said that the reasons for his decision were as follows. I now quote them.

“I have taken into account the background to this hearing. I first wrote to Dr Mattu on 27 July 2010 requiring his attendance at a disciplinary hearing on 12 and 13 August 2010. You requested a postponement of that hearing to give Dr Mattu further time to prepare and asked that it be held over shorter days by way of reasonable adjustment in light of Dr Mattu’s medical condition. I granted all your requests, postponed the hearing for 2 weeks and re-scheduled it in accordance with your request for more, but shorter, sessions. It was then due to take place on 31 August, 1, 7 and 10 September 2010.

Dr Mattu was certified fit for work by his GP on 2 August 2010 with a recommendation that he return to work on a phased basis.

On 19 August 2010 you requested that I postpone the disciplinary hearing again as it clashed with a period of your own annual leave. I agreed and confirmed that the hearing would not take place on 31 August or 1 September but would go ahead on 7 and 10 September 2010 to accommodate this.

On 27 August 2010, I postponed the disciplinary hearing a third time from these dates in September to a series of short sessions commencing on 11 October 2010 in response to your request for further preparation time for yourself and Dr Mattu and a longer hearing slot.

You applied once again to postpone the disciplinary hearing on 22 September 2010 as you advised that Dr Mattu had suffered a significant deterioration in his health. According to his GP Dr Mattu remained fit for work at this time.

On 5 October 2010 Dr Mattu was signed off work for 2 weeks.

On 7 October 2010 I postponed the disciplinary hearing a fourth time from the week commencing 11 October 2010 in response to your application and in order to enable the Trust to investigate the position with regard to Dr Mattu’s health.

The Trust sought to obtain the advice of an Occupational Health Consultant in relation to Dr Mattu’s health in view of this apparent change in his condition. Despite offering 3 different appointments to Dr Mattu, the Trust has not to date been able to obtain that advice as Dr Mattu has not attended any of the appointments offered or provided his consent to permit his medical records to be examined. Indeed, I understand that Dr Mattu is not prepared to be seen by Dr Davies, the Independent Occupational Health Consultant who has been instructed by the trust to provide this opinion.

You advised the Trust that you understood that Dr Mattu had been admitted to hospital for investigation on 7 October 2010.

On 15 October 2010 I postponed the disciplinary hearing a fifth time in light of this information and to allow further time for the occupational health assessment to take place.

On 28 October 2010 I took the decision to reconvene the disciplinary hearing for dates commencing on 10 November 2010 as it was by that stage clear that Dr Mattu was not prepared to cooperate with an assessment of his condition and fitness by the Trust’s chosen Occupational Health Consultant.

On 4 November 2010 you advised Mr McMenemy that you had in fact not notified Dr Mattu of the reconvened hearing dates. I was therefore obliged to postpone the hearing a sixth time and therefore caused Dr Mattu to be advised by letter of 5 November 2010 that he would not be required to attend the hearing until 16 November 2010.

You are now requesting that I postpone the disciplinary hearing for a seventh time.

In accordance with the Trust’s Procedure for Conduct and Capability Concerns in Relation to Medical and Dental Staff (paragraph 1.19) the investigation process should have been completed within 4 weeks. Thereafter, the Trust’s Disciplinary and Appeals Procedure envisages that not less than 7 days’ notice of a disciplinary hearing is given to the employee and a decision reached following a disciplinary hearing within 7 days. In Dr Mattu’s case, the disciplinary investigation commenced approximately 11 months ago and a disciplinary hearing has not yet taken place.

I do not share the view expressed in your email of 8 November that “there is no pressing need to hear the case”. Not only has this process significantly exceeded the timescales provided for by the Trust’s procedures, but I am mindful of the fact that memories fade and I am being asked to make findings about matters which took place some time ago. For example, in relation to the first allegation, the history of Dr Mattu’s re-skilling programme and the agreement or otherwise of its content dates back to September 2007. In relation to the second allegation, the events are now almost a year old. In order to do justice to both Dr Mattu’s case and that of the management side, further delay needs to be avoided. There are a number of people in addition to Dr Mattu who are involved in this process, and whose professional integrity Dr Mattu has called into question. I have also taken their need for the resolution of these issues into account.

I have reviewed the medical information that has been sent to me at Dr Mattu’s request. The most recent information I have is a brief letter from Dr Maher dated 21 October 2010. Whilst indicating that Dr Mattu was not well at the time of writing, this letter gives no prognosis as to when he is likely to be well, and in particular well enough to attend a disciplinary hearing. As at today’s date, I do not know where Dr Mattu is or what his current state of health is. I have tried on a number of occasions to obtain an update as to his condition in the last month but have not been able to do so and have been accused as a consequence (including being reported to the police) for allegedly harassing him.

The limited medical information that I have indicates that stress exacerbates Dr Mattu’s underlying physical condition. Given that a disciplinary hearing of this nature is unavoidably stressful, I have no information before me to suggest that Dr Mattu is ever, or within a reasonable timeframe, likely to be well enough to participate in this process.

I am particularly concerned that I am now being asked to postpone the disciplinary hearing for an unspecified period of time. When you first requested a postponement of the disciplinary hearing on 2 August 2010, you did so on the assurance to me that “Dr Mattu is very shortly i.e. around the middle of the month going to be ready to engage in meetings, investigations and hearings”. That did not happen. There have been further suggestions in correspondence since that time that Dr Mattu’s health will soon enable him to participate in the process but none of these have in fact proved accurate.

When considering this application to postpone it seems to me only appropriate that I assess how long it is likely to be before a reconvened hearing can go ahead. The history of this matter is such that if I postpone the hearing again I have little confidence that it will take place within a reasonable timescale and with Dr Mattu’s full engagement. Notwithstanding the fact that Dr Mattu was, in the opinion of his GP, fit to work from 2 August to 5 October 2010, the resolution of these disciplinary matters moved no further forward during that 2 month period, for example. Indeed, you wrote to the Trust on 7 October 2010 with the bald statement that “no preparation has been undertaken whatsoever by Dr Mattu” in relation to the disciplinary hearing. I find this very worrying and not consistent with your suggestion that Dr Mattu is eager to engage with this process so as to “clear his name”. This also means that, in addition to postponing the hearing long enough for Dr Mattu to be well enough to attend (however long that may be), I am also presumably being asked to postpone the hearing for a further period of weeks to permit Dr Mattu to prepare, although I have already postponed the hearing for more than once for this purpose.

Finally, I have taken into account that Dr Mattu has been represented by yourself, an experienced professional representative, throughout this process and that you are fully familiar with the background to the case and Dr Mattu’s position in relation to the re-skilling process and the other issues arising, having corresponded and attended meetings with Trust Executive Directors in relation to these issues on Dr Mattu’s health at great length over many months. I reiterate that you are welcome to attend the disciplinary hearing to put forward his case even if Dr Mattu is not able to accompany you. Please confirm by close of business today if you will be in attendance.”

This letter was a reasonable response to the situation. It should be noted that the Trust was anxious for an occupational health professional to see Dr Mattu. On the other hand, I am clear, having heard Dr Mattu give evidence, that he was anxious to control the material that the Trust received. He saw drafts of documents that were sent on his behalf and imparted to his general practitioner an attitude towards the Trust which was, at the lowest, questioning. Dr Buckley was, in fact, not a satisfactory person to provide an occupational health report as the Health and Work Handbook (Footnote: ³³)makes plain. It is strongly recommended that doctors avoid acting as both GP and occupational physician. The potential for blurring of roles and confusion is too great. (Footnote: ³⁴)

In summary, therefore, Mr Hendy argued that the failure by Mr Hardy to adjourn the disciplinary process was so unfair as to be irrational. Mr Cavanagh argued it was a rational response to a difficult situation. I consider Mr Cavanagh is correct. The fundamental problem is that Dr Mattu so conducted himself as to preclude an occupational health assessment sought by the Trust from offering an opinion to the Trust of his ability to attend the hearing by Mr Hardy. Further, although over time there was a barrage of material from Dr Mattu or those who were helping him at the time of the hearing there was an omission to inform Mr Hardy where Dr Mattu actually was.

It should also be noted that Mr Hardy, who struck me as both fair and honest, considered the matter again on the morning of 16 November. He had been provided with some more material on behalf of Dr Mattu but he still was not told on behalf of Dr Mattu where he was. The decision to proceed was fair.

A separate case arises on the back of article 6 of the European Convention on Human Rights. The argument proceeds as follows.

The Trust is a public body to which the Human Rights Act 1998 applies. By article 6 of the European Convention on Human Rights as scheduled to the Human Rights Act 1998 Dr Mattu is entitled in the determination of his civil rights to a hearing before an independent and impartial tribunal. Mr Hendy contends that his dismissal by a public body such as the Trust, which is, in turn, part of the National Health Service, is equivalent to being struck off the medical register and barred from practice in the National Health Service.

Consequently, it is argued that the Trust were determining Dr Mattu’s civil rights so as to entitle him to an independent and impartial tribunal, which, it is said, he did not enjoy as Mr Hardy cannot be said to be independent of the Trust of which he is chief executive.

This argument has to be founded on a civil right. Thus, it is necessary to enquire what civil right is engaged. Any putative civil right can be put at various levels of abstraction. On the one hand, in the circumstances of the case, one could talk of a right to work, whereas on the other hand one could talk of a right to work as a consultant cardiologist at a particular place. I remind myself that terms in the Convention have been given an expansive rather than an unduly restrictive interpretation and I also remind myself that the characterisation of the right in the context of a medical practitioner has been previously considered.

Blair J in a case called R (oao Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 270 (Admin) accepted that a person’s right to practise his profession was a civil right for the purposes of article 6. He recorded (paragraph 21) that it was not in dispute but that a person’s right to practise his profession was a civil right for the purpose of Article 6. This is not the same, he said, as that person’s right to remain in his current employment.

Puri was decided before the Supreme Court gave judgment in R (oao G) v. The Governors of X School [2011] UKSC 30. This is an important case in the context of the application of article 6 to employment by public bodies. The fact that one is only concerned with employment by public bodies, i.e. those bodies to which the Human Rights Act is applicable, is clearly significant. Lord Brown pointed out the contrast between article 6 being applicable to a disciplinary process within a small school, which happened to be a public authority, but not to a private school, which might, I respectfully add, be considerably larger and, possibly, more eminent than the small school.

In G’s case a complaint was made about a teacher at a school within the Human Rights Act. The complaint was very serious relating, as it did, to inappropriate conduct between teacher and pupil. Under the Education Act 2002 the Secretary of State can, by direction, list a person so as to prohibit his teaching children (whether in the private or public sector). In other words the regime under the Education Act 2002 operates a supreme professional sanction disabling the person subject to it from teaching, i.e. disentitling him from pursuing his profession.

At the school’s disciplinary hearing G was not allowed legal representation. This, it was argued, was a violation of his civil rights for, by article 6, in the determination of them he was entitled to a fair and public hearing by an independent and impartial tribunal established by law. It was common ground in G’s case that the relevant civil right was his right to practise his profession as a teaching assistant. This right, Lord Dyson said, would be directly determined by the decision under the Education Act 2002. G contended that the school disciplinary proceedings would have such a powerful influence on the proceedings or the proceedings under the 2002 Act as to engage article 6 in both of them.

Lord Dyson went on to say that the principal question raised was what kind of connection was required between proceedings A (in which an individual’s civil rights are not being explicitly determined) and proceedings B (in which civil rights are being explicitly determined) for article 6 to apply in both.

The parallel with the present situation is clear. Unless and until the General Medical Council erase, suspend or render conditional Dr Mattu’s registration he remains a fully registered medical practitioner. His registration appears on the General Medical Council’s website and he is entitled to the privileges which obtain in the United Kingdom in respect of those holding such registration. If he sought to practise overseas he would be entitled to a certificate of good standing.

Mr Hendy says the decision of the Trust is so potent that he, Dr Mattu, is effectively disabled from working in the NHS, which, he contends, is a monopoly employer. I note this is contention rather than evidence. I can and should take judicial notice of the fact that the National Health Service is a large organisation but I have very little evidence as to how bodies within the NHS would react to Dr Mattu’s dismissal. It is apparent that there are within the NHS a variety of (for instance) NHS Trusts. Obviously there is co-operation between them but there is also a degree of independence.

Mr Hardy said, I consider honestly, that if someone in Dr Mattu’s position applied to him for a post he would consider that application. Mr Hendy asserts that such is not the case and that, although there is a want of evidence to support the proposition, Dr Mattu has been rendered unemployable.

Lord Dyson had to consider, in answering the question I set out, above the test of substantial influence or effect given by Laws LJ in the Court of Appeal (Footnote: ³⁵) in G’s case. Lord Dyson said Laws LJ’s approach captures the idea of proceedings of being capable of playing a “major part in the civil right’s determination” in proceedings B.

I first consider the character of any civil right. The level of abstraction of such a right needs to be specified. I consider that clearly it can be categorised as a right to practise a profession. That accords with the view expressed by Blair J. I do not consider it can be categorised as a right to remain in current employment. I say this because the article itself is not framed in that way and it would be remarkably difficult to conceive of a circumstance when such a right would be practicable. What happens, it may be asked, if a public hospital or state school is located in an area with a declining population? The purpose for the institution may be lost but if the right is defined in terms of current employment, then a process under article 6 in respect of employees has to be embarked upon before an administrative decision to close the institution can be taken.

The same point obtains when considering the categorisation of work. In a variety of professional paths someone may gain particular expertise and acquire a speciality. However, the speciality may be subject to funding constraints. Thus, it is possible (for example) that some may lawfully take the view that certain forms of cosmetic surgery or some aspects of fertility treatment are not items which the National Health Service should pursue. However, if one defined the civil right as a right to practise a particular speciality any administrative decision in respect of such treatments would be affected by claims that a right to practise was being affected.

Accordingly, I consider that there can be said to be at least a civil right to practise the profession in which one is qualified. If one adopts that approach I consider it clear that Dr Mattu’s civil right has not been determined by the process within the Trust. First, the process has no effect on the General Medical Council, which adopts and follows, in a way which clearly complies with article 6, a procedure given by the legislative regime under which it operates. Consequently, it most certainly does not play a major part in the civil right’s determination. Thus, G’s case does not support Dr Mattu.

Further, it remains open to Dr Mattu to seek to practise his profession within both the private and public sector. I do not consider that a right to practise one’s profession has, as a correlative, an obligation that a particular job or employment be provided. The fact remains that Dr Mattu is a fully registered medical practitioner able to seek employment or if he wished to be self-employed.

I do not consider that Mr Hendy’s reliance on Kulkarni v. Milton Keynes Hospital NHS Trust [2010] 1CR 101 can be taken as overcoming the matters I have set out. In that case Smith LJ with whom Sir Mark Potter P and Wilson LJ agreed said that, had it been necessary, she would in respect of a trainee doctor have said that in the disciplinary process of the Milton Keynes Hospital NHS Trust he was entitled to rely on article 6. However, she also said that in ordinary disciplinary proceedings, where all that could be said to be at stake was the loss of a specific job, article 6 would not be engaged. However, if the effect could deprive the employee of his right to practise then the article would be engaged but there was a difficulty in knowing where to draw the line. She drew attention to the fact that for trainee doctors, such as Dr Kulkarni, it was literally true that the NHS was a monopoly employer. He could not complete his training in the private sector.

I do not consider that Dr Mattu’s position can be equated to that of the trainee doctor who is provisionally registered with the GMC and appointed to a post in the only organisation able to provide such a post namely the NHS. The post to which he is appointed is an essential part of the process in becoming fully registered. Dr Mattu, on the other hand, is fully registered.

If the right to practise is refined so as to become a right to practise as a consultant or as a consultant cardiologist, the preceding points remain true. Further, Dr Mattu remains fully registered and is on such specialist registers maintained by the General Medical Council as he has chosen. Plainly, the quantum of work available as a consultant cardiologist is less than the quantum available to a registered medical practitioner. The right to practise remains; his pursuit of that right is affected by innumerable instances depending on where, when, how and to whom he applies. All who have the same right are affected by their career paths with such blemishes and highlights as have been obtained.

The Chief Medical Officer of the Trust gave evidence. He said (Footnote: ³⁶) that his concern about Dr Mattu’s conduct related to his behaviour in connection with the content of and arrangements for his re-skilling programme and his complete unwillingness to accept his, Mr Kennedy’s, advice, guidance or authority as medical director. These allegations did not concern patient contact, clinical activities or clinical research activities. He, Mr Kennedy, said that in consequence he did not consider there would be any damage to Dr Mattu’s clinical reputation.

I shall have to come back to the question of reputation but Mr Kennedy’s evidence supports Mr Hardy’s evidence that Dr Mattu would gain consideration if he sought a post. It also supports the position as to categorisation.

Accordingly, I do not agree that the process of dismissal involved the determination of a civil right. Dr Mattu’s right to practise his profession remains. His ability to secure a post in competition with others may be impeded because of his career history but that, in my view, is different from saying his right to practise his chosen profession has been determined.

I should add that Mr Cavanagh asked me to find that Mr Hardy constituted an independent and impartial tribunal within the meaning of that expression in article 6. Mr Cavanagh said that Lord Brown’s observation at paragraph 99 of the G case was an obiter dictum upon which I need not rely. In that paragraph Lord Brown drew attention to a feature of the Court of Appeal’s decision and said that of course school disciplinary panels were not independent and impartial tribunals in respect of the teachers at such schools.

I do not consider that I should lightly put on one side Lord Brown’s remark. I do not consider that Mr Hardy the chief executive of the Trust by himself constituted an independent and impartial tribunal in respect of the possible dismissal of an employee at that trust. This is not to say that Mr Hardy behaved unfairly. I consider he behaved with exemplary fairness. It is a simple acceptance of the fact that if one were looking in this situation at Mr Hardy alone for a tribunal in accordance with article which met the requirements of independence and impartiality Mr Hardy would not provide it.

I should say but a little more about the appeal. The process has been carefully explained in an uncontentious witness statement by Miss Donna Howard. The appeal was lodged by Mr Ian Mckivett, Dr Mattu’s representative from the British Medical Association. The appeal was thereafter arranged and is being conducted in accordance with the Trust’s Disciplinary and Appeals procedure (version 3) and the Trust’s Procedure for Conduct and Capability Concerns in Relation to Medical and Dental Staff, which implements MHPS. The panel consists of three members who – and this is the unchallenged evidence – possess the necessary seniority and who have not been involved in Dr Mattu’s case in any way.

The panel consists of a former chairman of the Heart of England NHS Foundation Trust, the Medical Director of the Cambridge University Hospitals NHS Foundation Trust and the Human Resources Director of the University Hospitals Birmingham NHS Foundation Trust. Objection has been raised to this panel on the basis it should not comprise anyone who had worked in a senior position in the West Midlands NHS Trust since 2002 or anyone who was known to any party in the matter. The extent of this objection is apparent when one considers that by itself the Trust serves a population of over a million and has about 6,600 employees. Miss Howard gave it as her evidence, which was not put in issue, that the requests by Dr Mattu (by way of objection to the panel) were not reasonable.

I notice, incidentally, that the arrangements for the appeal were not assisted by the approach of Dr Mattu or his BMA representation.

I should not overlook the fact that Mr Hardy is not the sole part of the disciplinary process. The arguments of the parties were predicated on the basis that the whole process demands attention.

In this respect I have noted, in particular, the approach of Blair J in Puri’s case together with his citation from the judgment of McCloskey J in Ali v. Belfast Health and Social Care Trust [2008] NIQB 143. In the circumstances, although I appreciate that the appeal is based on grounds I have earlier identified I consider that overall the process meets the requirements of article 6.

Mr Hendy argues that article 6 is also engaged when an individual’s civil right to enjoy a good professional reputation is determined. He cites Warner v. Poland 26760/75, 15 November 2001 and Pfeifer v. Austria [2009] EHRR 48. This argument was considered by Blair J in Puri’s case. The argument failed. I consider it also fails here. Mr Hardy was deciding whether or not Dr Mattu should be dismissed from his post. I do not doubt that such dismissal could be described as a blot on Dr Mattu’s copy book but I do not consider that Mr Hardy was determining Dr Mattu’s reputation. Further, as Blair J observed article 6 provides procedural guarantees rather than causes of action and there were no substantive rights to which the article could attach.

The parties differed as to what I should do if, on the legal issues which divided them, I found in favour of Dr Mattu. Mr Hendy argued that I should grant injunctive relief so as to restore Dr Mattu to the position he was in prior to the dismissal on 30 November 2010. Mr Cavanagh argued that the trust and confidence between employer and employee could not now in the light of all the circumstances possibly be restored. He suggested there had been delay and that Dr Mattu should have made it clear that he was not accepting the repudiatory breach.

I am not convinced, having decided the issue of law in favour of the Trust, of the merit of my considering this matter at length. I have sympathy with Mr Cavanagh’s argument but the difficulty for Mr Cavanagh, as it seems to me, is that the appeal process contemplates the possibility of Dr Mattu being restored to his post. Such being the case it then becomes a little difficult to maintain that if the process was legally flawed such a flaw should not be overcome in what may be thought to be the only way possible.

Accordingly, I incline to the view that I would have granted relief had Dr Mattu’s legal arguments succeeded.

This claim is dismissed. I do not consider that the issues required independent medical involvement in the disciplinary process. I consider the Trust were entitled to proceed with the process. I do not consider article 6 of the European Convention on Human Rights to have been engaged and, in any event, I consider the overall process met the requirements necessary under that article.

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