Chhabra v West London Mental Health NHS

This is a claim for an injunction to restrain the defendant from going ahead with disciplinary charges relating to breaches of patient confidentiality while criticisms of the claimant are on foot in separate capability proceedings. Patient confidentiality is rightly viewed as a high priority by all concerned in this case. The public needs to be protected through professional standards which are maintained in relation to patient confidentiality.

Throughout the proceedings the claimant has been represented by Mr Mark Sutton QC and by Miss Betsan Criddle and the defendant by Miss Louise Chudleigh.

The West London Mental Health Trust has three hospitals, Broadmoor and St Bernard's Ealing West London being two of them. Dr Chhabra is a consultant forensic psychiatrist at Broadmoor. Currently she is on non-consultant duties at St Bernard's. A consultant forensic psychiatrist deals with those in our community who have a mental condition and have been involved with the criminal justice system as offenders. Dr Nicholas Broughton, who is the principal actor on behalf of the defendant, is the Medical Director for the Trust. Previously he was involved in the Trust (London) Forensic Service. Dr Chhabra gave evidence herself and Dr Broughton did for the Trust.

Also involved in this case are the following people whose names will appear in this judgment: Dr Sean Bhattacherjee is a consultant forensic psychiatrist who led at Broadmoor. Dr Kevin Murray is the Clinical Director at Broadmoor. Miss Leanne McGee is the Executive Director of High Secure Services. Dr Aideen O'Halloran is a consultant forensic psychiatrist and was lead clinician at the Orchard Unit to which the claimant was sent. Dr Amanda Taylor is a consultant forensic psychiatrist at Southern Health NHS Foundation Trust, appointed to investigate concerns brought by the Trust against the claimant. Dr Christine Wee was at the time chair of the local negotiating committee which is described as the staff side of the procedures, to which I will come in due course. Dr Richard Bayney was the acting chair. Dr Steven Boyle was a lead adviser at the National Clinical Assessment Service NCAS, the body charged with investigating and reporting and assisting on and drawing up plans for doctors where there has been a concern about their practice. Mr Geoff Rose is a non-executive director appointed for the purposes of this case to take one specific role. Miss Ruth Lewis is the Director of Organisation, Development and Workforce and Mr Alan Wishart is Associate Director of HR.

At the outset the issues were presented as being substantially agreed and in the closing submissions of Miss Chudleigh they are said to be as follows:

As I will explain, I do not consider that accurately describes the issue because it is common ground that the date of reference is 12 August 2011 and it is the decision made by Dr Broughton on that day in writing which is the subject of the legal proceedings. It is that decision which is challenged and not a more general characterisation of the activity of the Trust.

By way of a short background, the claimant has been employed substantively in the role of consultant forensic psychiatrist since 1 September 2009. She previously was a locum. Concerns were brought to the Trust's attention and the Trust decided to conduct a disciplinary hearing to consider matters of alleged gross misconduct relating to breaches of confidentiality towards patients. That was scheduled for 9 March 2011 and an agreement was reached in the shadow of legal proceedings for it to be put off pending a speedy trial today.

Patient confidentiality was one set of matters looked at by Dr Taylor during her investigation, as required by the procedures which. Other matters which were agreed squarely to relate to performance and capability were also considered by her. Very significant parts of the follow-up from Dr Taylor's report by way of the National Clinical Assessment Service have been completed. It is in four parts and, as I understand it, two and a half or three of those have now been completed.

The dispute between the parties relates to the distinction between criticisms of the claimant's conduct and criticisms of her performance and capability and whether or not these matters divide so that conduct goes down one road and performance and capability down another. These are matters which it is agreed by the parties are to be determined as a matter of contract and not as a matter of discretion and within a margin of appreciation. The question is: to what procedures is the claimant entitled? In the context of the contract a number of breaches is said to have occurred. That includes the characterisation of the breaches of confidentiality as to do with conduct. Alternatively, if they are, whether they should have been put together with the performance criticisms and together moved on in the appropriate procedure. There are some subsidiary issues relating to the obtaining of privileged communications between the claimant and her legal advisers by the Trust. They are very much secondary.

I start with the written procedures. By a contract of employment dated 26 October 2009 the claimant was engaged by the Trust as a consultant with effect from 16 October 2009 with continuous employment from 1 April 2008, appointed to Broadmoor. The terms of the contract include the following:

One of the important aspects of the claimant's contract is her right to be treated in accordance with the procedures should any criticisms be made of her. From the middle of the last decade there has been in force a document which represents a sea change in the way in which medical practitioners are to be dealt with in the context of criticisms of their practice. To that end there was introduced at national level a policy called Maintaining High Professional Standards in the Modern NHS ("MHPS"). This was to move away from much criticised procedures which had existed under different formulations within the health service and to provide a wholly new regime. It provides separately for the conduct of hearings and disciplinary matters and the procedures for dealing with issues of capability. It therefore superseded the old provisions under different health service circulars and the key changes are summarised in it in the following way:

the distinction between personal and professional misconduct is abolished. Doctors and dentists employed in the NHS will be disciplined for misconduct under the same locally based procedures as any other staff member;

there is a single process for handling capability issues about the practitioners professional competence closely tied in with the work of the National Clinical Assessment Authority;

Health Issues are routinely dealt with through the occupational health service;

The employing Trust is squarely responsible for the disciplining of its medical and dental staff- not outsiders;

There is scope bring in expert advice for panels considering capability issues;

The capability panel will be handled by an independent chair;

The same disciplinary procedures will apply to all doctors and dentists employed in the NHS.”

It is a pristine document aimed at changing culture, for it says:

This is the model upon which local determination of these matters will take place. In short it is to take under the wing of the employing authority responsibility for dealing with criticisms of doctors so that there is a very close relationship between the employing authority and the procedures. So these national guidelines are replicated locally. What is said in the national guidelines relating to the local conditions is this:

A refusal to comply with reasonable requirements of the employer.

An infringement of the employer's disciplinary rules including conduct that contravenes the standard of professional behaviour required by doctors and dentists by their regulatory body.

The commission of criminal offences outside the place of work which may, in particular circumstances, amount to misconduct.

Wilful, careless, inappropriate or unethical behaviour likely to compromise standards of care or patient safety, or create serious dysfunction to the effective running of a service.

The way in which this was done at the Trust was to implement two policies, D4 and D4A. D4A is the one which we will be most concerned with. It is described as a policy for handling concerns about a doctor's performance, including guidance on disciplinary procedures. It is presented as an agreement between the Trust and the local negotiating committee, the staff side, and therefore represents, it seems to me, either a collective agreement or a clear policy incorporated into the contract of the relevant practitioners. The procedure has to be read with the disciplinary policy D4. The outline is that all serious concerns will be registered with the Chief Executive and that a case manager be appointed. The first thing is to decide is whether a problem is identified:

There is then a task to be performed by a case investigator who is responsible for leading the investigation into any allegations or concerns about a practitioner, establishing the facts and reporting the findings (see paragraph 1.13). What is his or her role? This is prescribed in the following way:

There is a case of misconduct that should be put to a conduct panel;

There are concerns about the practitioner's health that should be considered by the NHS body's occupational health service;

There are concerns about the practitioner's performance that should be further explored by the NCAS;

Restrictions on practice or exclusion from work should be considered;

There are serious concerns that should be referred to the GMC;

There are intractable problems and the matter should be put before a capability panel;

No further action is needed.”

It can be seen under paragraph 1.19 that the case manager, in this case Dr Broughton, has to make a decision and, so far as it is relevant to our case, it is as between the first, the third, the sixth and the seventh bullet points above. That is a matter which is to be decided upon the material provided by the investigator for it is the investigator's task to provide the case manager with sufficient information for him to make the decision. When there has been a local investigation, NCAS is involved and this is provided in by paragraphs 120 and 121:

Performance falling well short of what doctors could be expected to do in similar circumstances and which, if repeated, would put patients seriously at risk;”

Since this is the framework which follows the MHPS, conduct and disciplinary matters are together provided for under part 3 of code D4A and there is this:

I think the reference in the last line above is to paragraph 4.3. In part 4 there is then a specific procedure for dealing with issues of capability. Capability and performance seem to be used interchangeably within these procedures and this is how they are presented:

It is a mandatory requirement before instigating the procedures that advice will be taken from NCAS (see paragraph 4.6). What is described as the pre-hearing process is conducted in this case by Dr Taylor and an opportunity for comments from the criticised practitioner must be made available, including any mitigation. The obligation on the case manager is this:

Whether action under Part 2 of the procedure is necessary to exclude the practitioner; or

To place temporary restrictions on their clinical duties.

Standing back from this for a moment, the point is that there must be full involvement with NCAS before a case manager goes down any of the further routes following an expression of concern. D4A is interlocked with D4, which is the policy on discipline applicable throughout the Trust. It is headed in paragraph 8 of D4: "Behaviour/Performance which may result in Disciplinary Action" and there is a categorisation of offences, as is common in most substantial employment environments,. These are minor misconduct and misconduct (8.2), serious misconduct (8.3), gross misconduct (8.4) which includes the following:

It is envisaged in this disciplinary policy that there may be informal action (see paragraph 9), and there is also a procedure called fair blame which is described in the following way:

I have come across this procedure before since I heard an appeal at the Employment Appeal Tribunal against this Trust Sarkar , which was also the subject of an appeal to the Court of Appeal. So I understand how this policy works and it seems to me that it is a very useful way of handling disciplinary matters in a sensitive way where responsibility is accepted by a person criticised. An insight into what happens at a disciplinary hearing is given in appendix 7 and of note is this:

It looks as though in the ordinary case the investigator will present and conduct the case against the practitioner, with the practitioner also being represented.

Part and parcel of this environment is a staff charter, relevant provisions of which are as follows:

Of assistance in looking at the application and meaning of these procedures is the evidence specific to this case. Effectively the claimant began her substantive post as a consultant forensic psychiatrist at Broadmoor on 1 September 2009. There was some negative feedback about her as reported by her manager, Dr Bhattacherjee, on 28 October 2009. An allegation was subsequently made on 6 April 2010 that there had been complaints about the claimant falsifying feedback, and other complaints. There was then to be on 1 October 2010 what is described as a 360 degree appraisal process and matters to do with a formal process might be followed up if there continued to be concerns expressed about the claimant. On the same day, 1 October 2010, a complaint was made by a solicitor, Tam Gill. I say at once that this was rejected, but nevertheless it formed an important part of the early parts of this case because Dr Broughton on 26 October 2010 decided that the matter was to be investigated under the disciplinary policy D4.

On 1 December 2010 a civil servant made a complaint. She was then known as Miss Leech. It was a complaint of breach of confidentiality which she had observed on a train from Broadmoo and the claimant was suspended (and sometimes the word "excluded" is used) with effect from her written notification on 2 December. On the same day Dr Broughton wrote to those representing the claimant that there were to be three matters of concern investigated in accordance with the policy. Dr Taylor was commissioned to act as investigator. On 8 December 2010 Miss Lewis indicated to Dr Murray that a new allegation should be added to Dr Taylor's terms of reference and this was that there was misrepresentation by the claimant of feedback procedures.

On 15 December 2010 a case conference was conducted by most of the actors in this drama and it was decided to exclude the claimant from her practice because of what were there specifically described as errors of judgment. Terms of reference were drawn up and on 20 December 2010 they were provided to the claimant. In introducing the subject Dr Broughton said this:

Attached to the letter were the terms of reference and I will reproduce them in full:

It will be at once are apparent that the division is as between 1 and 2, which have been described as the confidentiality issues, 4 and 5, which relate to concerns with medical colleagues, and 3, which is the complaint by the solicitor. As I have indicated, that went no further, for reasons which I will explain.

An application was made on 10 February 2011 for an injunction. At the same time a complaint was made that Mr Wishart should have no further part in these proceedings as an HR adviser and that he should be replaced. Two things then happened. Mr Wishart would play no further part in the investigation process following a written agreement on 24 February 2011. Just prior to that Hickinbottom J heard the application and the matter was adjourned on agreed terms. Representations could be made to Mr Rose about the claimant’s continued exclusion. In fact Mr Rose did deal with the matter and it was sought from him that she should be allowed to return to St Bernard's. She was - under the supervision of Dr O'Halloran.

On 9 March 2011 Dr Broughton wrote to the claimant's solicitors summarising the concerns which they had. The claimant was interviewed by Dr Taylor on 17 March 2011, and it will be recalled from the procedures that this is now three months into what is supposed to be a four-week process. The following week, on 29 March 2011, Dr Taylor communicated with Mr Wishart and she said this:

What this indicates is that there was communication with Mr Wishart, contrary to the assurance that he would not be involved with the investigation and that the investigation is ongoing, for there is still the projection by Dr Taylor of interviews with two other witnesses. There is also an indication of Dr Taylor's then view that the claimant's actions in relation to confidentiality were a mistake and it would not be repeated.

On 19 April 2011 a new allegation was made on behalf of the Trust contending that the claimant had breached the Data Protection Act by obtaining documents. On the same day Dr Broughton commissioned the possibility of Dr Murray being a member of a panel to conduct a disciplinary hearing. In other words, before the Taylor report Dr Broughton was envisaging a disciplinary panel.

On 20 April 2011 an e-mail was sent by Miss McGee to Dr Murray and Mr Wishart which attached what are accepted to be legally privileged documents which they had obtained from the claimant's e-mail inbox. They are legally privileged because they by their title indicate the litigation which is going on. That formed a separate strand of the criticisms of the claimant and by the claimant of the respondent.

On 1 June 2011 Dr Taylor sent an e-mail to Mr Wishart enclosing a draft report. This report was the subject of a number of substantial suggested amendments by Mr Wishart. Of relevance is the suggestion that the adjective "serious" be inserted in at least three places where it had not been found in Dr Taylor's original document. It was described by Mr Sutton in his cross-examination of Dr Broughton as an attempt to pepper up the document. Plainly one can see through the tracked changes those suggestions accepted by Dr Taylor and those rejected, but I accept the submission as a matter of analysis that there is not one suggestion made by Mr Wishart by way of lessening the impact and all of them are by way of stiffening of Dr Taylor's report.

On 9 June 2011 the Taylor report was sent and because it is, as I hold, the basis upon which the action of Dr Broughton could go forward, I will spend some time reproducing it. It is a D4A investigation and Dr Taylor correctly dissects the allegations into three parts; confidentiality, Miss Gill and capabilities. She deals first with terms of reference 1 and 2. Here she says the following:

The conclusion of Dr Taylor on these matters is as follows:

She returns to these matters in her summary and says this:

The third complaint, Tam Gill’s, was rejected. The matters concerning Dr Chhabra's probity were rejected but matters of concern included team working, leadership skills, and so on. They were properly recorded by Dr Taylor. The outcome, as I hold it to be, is that Dr Taylor upheld the concerns in relation to breach of confidentiality which the claimant admitted, which were that and that she read documents which were visible and disclosed patient confidentiality in the presence of Miss Leech on the train and she dictated two reports on a train. Dr Taylor did not uphold the complaint that there had been a conversation disclosing patient confidentiality between Dr Chhabra and the person on the train who she was seated next to and she did not uphold the contention that Dr Chhabra had discussed patient information on the phone with her PA or secretary.

Dr Taylor did a second report and there are also other utterances by and attributed to Dr Taylor from which I form my view. It is this: Dr Taylor, where there was a dispute between two people about an event or a conversation, she was prepared to take the side of the practitioner unless there was clear evidence. Only a fragment of the allegations of breach of confidentiality was upheld by Dr Taylor and, as I see it, Dr Broughton did not appreciate the fine distinctions (yet distinctions they are) between what went to Dr Taylor and what came back from her. The report was given to the claimant on 27 June 2011 and two days later solicitors on her behalf set out her comments as sought. These correspond to what Dr Taylor found and what the claimant told me in her evidence. She says this:

She then sets out a very substantial number of instruments which she has considered relating to confidentiality, including a reference to Caldicott. Caldicott is to do with information governance and the custodian of Caldicott at the Trust is Dr Broughton. She also reiterated that she read or re-read all of the relevant documents relating to confidentiality and also expressly said that she had undertaken further relevant courses and training.

Those matters went to Dr Broughton and he then issued his decision letter, which are the measures sought to be enjoined in these proceedings. He says this:

After the commencement of the investigation, Dr Chhabra removed from the Broadmoor site a large number of documents relating to Broadmoor patients without seeking approval to do so or notifying her line manager of her intention to do so. In particular, she removed a copy of an entire patient's file, which was not required in order to consider the allegations that had been made against her. There are concerns as to how this information was removed form (sic) Broadmoor and how this information was provided to Dr Chhabra's representatives at the MPS and solicitors.

Again as a matter of analysis, it is possible to correlate what Dr Broughton says there with Dr Taylor's report. Numbered paragraph 1 is correct. There is a correct correlation in respect of reading patient notes on the train, but, as I have held, there was no finding by Dr Taylor that the claimant had breached patient confidentiality by discussing patients while on public transport. Again, the reference is to the investigation report and it is not there. The second paragraph is admitted by the claimant. As to the third, there is no finding by Dr Taylor of the claimant talking on the phone to her secretary to discuss patient related matters. As I have analysed, Dr Taylor did not uphold that criticism.

Paragraph 4 is the wholly new allegation, which was not put anywhere apart from here, and is included within the heading of "Gross Misconduct". Dr Broughton has chosen of the three levels of criticism identified in D4 the highest, gross misconduct. It is noted that the particular offence here is one which was inserted after the alleged commission of it. Nevertheless, Mr Sutton takes no point on that since Dr Taylor was linking the allegations to the GMC guidance on confidentiality and it is common ground that breaches of confidentiality can constitute gross misconduct in extreme cases. On the basis of that decision, Dr Broughton was obliged to bring in NCAS and forms were sought.

On 18 August 2011 Dr Taylor again communicated directly with Mr Wishart and she said this:

Following this there was a dispute about the issue which is before me, that is, the separation of conduct from capability, and there was a number of outlets for the ventilation of this concern. According to the code, matters could be raised through the grievance procedure. They were, at two levels and then through Mr Rose they were and rejected. I pay careful attention to what are effectively three organs of the Trust deciding on the classification issue, conduct versus capability, since they represent the view taken by the Trust in these proceedings. The local negotiating committee, Dr Wee being the actor responsible for this, did not accept the delineation that Dr Broughton set in place. Dr Wee’s opinion was this:

What is important about this communication is that it involves Dr Wee’s discussion with Dr Taylor and it records Dr Taylor's view, as well as of course Dr Wee’s. This material in here has not been attacked: Dr Taylor told Dr Wee that what was going on was an issue of poor medical performance. That remained the position of Dr Wee and the LNC and Dr Bayney, counterposed to that of the Trust.

There was a second reiteration of Dr Taylor’s opinion, again reported by Dr Wee, on 6 October 2011. It may be that she is referring to the same conversation, but she does say in terms that it was Dr Taylor's opinion that breach of confidentiality was a matter of poor medical performance and it was on that basis that Dr Wee was putting the LNC position.

The temperature in this case was turned up to high on 10 October 2011 by Dr Broughton's reply to Dr Wee, for he said this:

This represents the position Dr Broughton had at the time and had in his evidence: breach of the confidentiality provisions is a disciplinary offence because it is wilful. That position was accepted by Mr Sutton in cross-examining him. If it was the case, as Dr Broughton said, that gross misconduct as charged required wilfulness, this case did not reach that level on its face, as Dr Taylor had not included any matter such as that.

In the meantime, on 28 October 2011, some anonymous person referred criticisms of the claimant to the GMC. In due course the matter was investigated. The anonymous referrer was a member of the administrative staff of the Trust who has subsequently been dismissed, it is said, for fraud. The point is that this person is beyond reach for disciplinary process.

On 16 November 2011 Dr Taylor sent her second investigation report into the allegation that the claimant had breached confidentiality by disclosing case files to her solicitors. It was rejected by Dr Taylor and taken no further. Formally, paragraph 4 of Dr Broughton's charge sheet, is not proceeded with.

On 20 December 2011 Miss Lewis wrote to Dr Bayney of the LNC giving what she described as the view of the Trust, which corresponded to that of Dr Broughton, that the allegations of confidentiality breaches were wilful. The Trust proceeded to follow the NCAS guidelines by sending its referral to NCAS, which consists of an enlargement of the concerns relating to the claimant’s practice and capability and a note of what else is going on. It is pointed out that there is an investigation which included a finding that patient confidentiality had been breached and that it will be addressed in due course. That document should have reached the claimant for her comments. It did not. On 17 January 2011 Dr Broughton confirmed the dumping of allegation 4, but no further separation of the matters in his original charge sheet, and so the case was to go ahead as a separate conduct hearing. The panel was disclosed. It includes a consultant in the same discipline as the claimant and two other persons.

As part of the NCAS procedure an agreement must be reached. It is made in the light of the terms of reference, but formally the vehicle for this matter being placed in the hands of NCAS is the tripartite NCAS agreement between the Trust, the practitioner and NCAS. On 6 February 2012 agreement was reached which included the summary of the concerns which NCAS was to investigate. They are these:

Relationships with patients including

Working with colleagues including

That matter has now been progressing. Following an agreement between the parties for a speedy trial of this matter, progress has included the determination of some of the four segments of the NCAS approach, which is an occupational health assessment carried out on 16 March 2012. This includes a specific reference to the claimant's workload in October and November 2010, when, it will be recalled, the admitted breaches of confidentiality occurred. It is there reported that there is a period of work related stress in the context of problems she was having at work, compounded by an unexpected peak in workload. She had been threatened with disciplinary action, she was under disciplinary investigation following complaints, sleep was disturbed and suffering from headaches which lasted for a period of about four weeks. Then there was a note about factors in the work environment which have a bearing on her.

A week later, on 23 March 2012, a behavioural assessment was carried out which lasted for seven hours. There is no written report yet, but the claimant told me in her evidence that there was considerable attention given to the circumstances surrounding the confidentiality complaints and the factors which contributed to it.

The third component is the clinical assessment and, although not optimal, this will take place at Ealing and not at Broadmoor. What is left is a peer review and, as I understand it, much of that has been done.

I turn then to the witness evidence. Dr Chhabra was taken to the glowing reference she was given by Dr Horne which indicated the claimant understood the importance of confidentiality. As she admitted, she accepted that she knew what was expected by GMC guidelines and accepted her responsibility under them. She said she had considered Dr Taylor's report. She accepted what was put against her and admitted it should not have happened. She denied discussing matters with her secretary publicly. She acknowledged that she was at fault in respect of the matters she had admitted. She considered Dr Broughton was entitled to be concerned but that it was an error of judgment which she deeply regretted. She did not realise that she compromised patient confidentiality and she indicated that she had reported pressures of work. When she looked at the tripartite NCAS agreement she considered that this would be an opportunity for her to give her account and to be probed in detail about matters surrounding all of the concerns. She said that there was not a fact finding inquiry but in respect of the behavioural interview her evidence was, as I have suggested, from her written statement. She agreed with Dr Broughton in his written evidence that patient confidentiality is particularly important given the nature of the patients she and the Trust deal with and that these patients attract a good deal of unwanted media attention. She said there would be no further breaches.

Dr Broughton had done a number of interventions in respect of MHPS and had training. He acknowledged that the new regime is to move away from a culture of blame and swift discipline into remediation. This underpins the whole scheme. What controls this is a concern for the serious concerns about professional conduct. The conduct policy in D4 is applicable to all staff. Dr Broughton had confidence in his choice of Dr Taylor to do justice to the claimant as being recommended to him as of high calibre and he acknowledged that Mr Wishart had briefed her. That, he accepted, was an oversight for which he apologised, given the assurance that had been given to the claimant that Mr Wishart would not. It was clear to him that this was professional misconduct. He did not hope to dismiss her, but the judgment he made on categorisation as between conduct and capability flowed from the investigation.

There was a serious breach of confidentiality which was caused by conduct of the claimant which was itself wilful and he defined wilful to me as being not ignorance, accident or compulsion. That means that, as he put it, the claimant knew she was dictating, she knew she was reading on the train, and that made her conduct a wilful breach of the confidentiality obligations. She compromised the confidentiality of the patients. In saying that her conduct was wilful, he denied placing any gloss upon Dr Taylor's report. He was plainly of the opinion, which he maintained, that this was a disciplinary matter. He did, however, acknowledge that it was a possibility from a multifactorial approach that performance issues would include the matters criticised by way of conduct. He acknowledged that the claimant had been acquitted in respect of the falsification and probity issues by Dr Taylor, that she had told Dr Taylor about her heavy workload, which could cause stress and produce aberrant behaviour. Given the glowing report, including its reference to respect for confidentiality, this conduct could be described as aberrant and the circumstances that she had about her professional life in the latter part of 2010 could be presented as mitigation at a disciplinary hearing.

It was not the role of NCAS to clarify whether these were issues of misconduct, it was to deal with concerns. He said the claimant had not acted in an uncharacteristic way in that it was said she normally read papers from Bracknell to London. He also introduced for the first time a contention that removal of papers in itself was a breach of policy D5, a matter which had not formed any part of the allegations thus far. He acknowledged that gross misconduct is the highest level of misconduct and this was a first offence. It was deliberate flouting of the rules. He acknowledged that those words were not found in the Taylor report. He also acknowledged that, notwithstanding the concerns he expressed, the claimant was restored to St Bernard's, albeit not as a consultant, and that was his explanation when challenged as to how there could be a breakdown in the relationship sufficient to constitute gross misconduct and yet the claimant be still engaged as a practitioner by the Trust.

He had no explanation as to why Miss Lewis thought it necessary to strengthen the case and accepted that this was an unfortunate and unnecessary addition to the case, but it had no bearing on his decision. He accepts that he did say at various stages that it was a serious error of judgment, but relied on that only in respect of his decision on exclusion. He acknowledged that there was inadvertence on his part by failing to consult NCAS before further stages in the procedure. He acknowledged there were serious delays in the procedure which frustrated him too and that certain parts of the allegations against the claimant had been rejected by Dr Taylor, including the matters relating to probity. He told me that Mr Wishart was involved in earlier stages and was not involved in the investigation, notwithstanding being reminded of the correspondence between himself and Dr Taylor. He was aware that Dr Taylor prior to her report was indicating that the claimant accepted responsibility for confidentiality breaches. I think it probable that he had seen the letter from Dr Taylor to Mr Wishart before he made his decision on 10 August 2011. If not, he had certainly known the gist of it since he talks weekly to him.

He was also pressed upon exoneration and Mr Wishart, he said, should have known that matters of exoneration are required by the code to be dealt with and what Mr Wishart was doing should have paid attention to that. As to his commissioning of Dr Murray to chair a forthcoming disciplinary hearing, he simply wanted to move the matter forward and knew that this was a very busy practitioner.

When pressed about the interrogation of the claimant's electronic mailbox he said this was a power for the Trust and did not know about this at the time. He acknowledged Mr Wishart had a hand in drafting but did not pepper up the Taylor report. He accepts that some of the insertions directed by Mr Wishart were inappropriate, but the gist remained the same. He acknowledged that the level in the report was heightened but his decision would be the same. There was no reference, he agreed, to wilfulness in the Taylor report. He acknowledged the delay in the procedures and in failing to send relevant materials to the claimant.

In summary, Dr Chhabra gave her evidence in a straightforward way, acknowledging where she accepted fault and answering questions clearly. Dr Broughton gave evidence in a straightforward way. He was properly challenged. He comes across as a manager in the specialist service he is in, who places great stock in confidentiality and a doctor's duty and he is right to do so. He gave his evidence in a straightforward way and he too when pressed acknowledged faults in the procedure which he was conducting. They are both clear, honest, straightforward, professional practitioners.

The principal argument of the claimant is that this is a matter of categorisation and that what the claimant was charged with under the heading of "Confidentiality" was a matter of performance and not to do with conduct. If it was conduct then there was an obligation under the procedure to combine it with capability and to send it off to NCAS. The approach of the defendant to deal with this matter as one of conduct was to go back upon the old regime where there was a new regime which would deal holistically with the matters. The presumption in paragraph 4.5 was in favour of the claimant where there was or there might be a relationship between what was done and performance issues. The central contention was that both should go together or the parties and whoever was dealing with this would be operating with one hand tied behind their back.

The divisions between the examples given of misconduct are porous and many of the examples could equally be described as to do with capability or with conduct or with performance. It is important to look at the matter as one of substance rather than simple labelling. The claimant had accepted fully and frankly that she had done wrong and this cried out for determination under the fair blame procedures. What the claimant had admitted to, arising from the Taylor report, could not be categorised as conduct or, if it could, it could not be categorised as gross misconduct. This matter should be taken through the capability procedure where an action plan might be forthcoming, the procedure is underway and it should not be interfered with by way of the disciplinary procedure.

On behalf of the defendant Miss Chudleigh contended that Dr Broughton had paid full attention to the guidelines, was entitled to delineate the matters as he did between conduct and capability. The matters were separable. The officers of the defendant who had heard the claimant's contention had correctly decided that this was proper classification. It would be wrong for the court to be engaged in micromanagement of the procedures and the hearings and not only was it open to Dr Broughton to decide, as he did, to cleave the two, but as a matter of contract this claim by the claimant must fail.

The legal principles to apply in this case fall under the following headings:

In Wilson v Racher [1974] ICR 428 Cairns LJ, giving a judgment with which the other members of the Court of Appeal agreed, set out the following definition:

A contract of employment may incorporate terms from a collective agreement or from a policy provided its terms are apt, see Alexander v Standard Telephones and Cables Limited (No 2) [1991] IRLR 286 at paragraph 37 where Hobhouse J said this:

That approach was also followed in Bristol v Deadman [2007] IRLR 888 where Moore-Bick LJ said this:

The role of the court in deciding the issues as to classification has been clarified in three authorities. In Skidmore v Dartford and Gravesham NHS Trust [2003] ICR 721 it was said that it was for a Trust who would initiate the commencement of disciplinary proceedings to decide on the appropriate disciplinary route to be followed, so long as its decision complied with the terms of the contract with the practitioner. Where its decision did not so comply and was acted upon the usual remedies for breach of contract would arise and that accordingly use of the wrong procedure entitles the practitioner to the appropriate relief. See also, for example, the speech of Lord Steyn at page 729D where he holds the contract was entirely workable on the basis that the authority had to decide on categorisation but it had to be done in accordance with the contract. This to my mind indicates, as Mr Sutton submitted, a purposive approach to be taken in a robust way by the court to decide matters of contract in respect of practitioners.

The matter came up again in Hussain v Surrey and Sussex Health Care NHS Trust [2011] EWHC 1670 QB in a judgment of Andrew Smith J. This judgment is important in our case in a number of respects. First, I bear in mind what he said in paragraph 3 that he has described the background intending to be uncontroversial and did not decide the critical factual issues in the case, and that remains my position too. At paragraph 104 he explained the use of the procedure analogous to the one in our case:

The third aspect of the case arises by reference to what he said on incorporation at paragraph 168 in the following way:

The importance of the provision to the contractual working relationship between the employer and the employee and its relationship to the contractual arrangements between them: as I understand it, it is common ground in this case that, because parts of the Practitioners Disciplinary Procedure are contractual, in some circumstances the Trust might exclude Dr Hussain or bring disciplinary proceedings for misconduct against her. The implication of this, as it seems to me, is that provisions important to implementing the agreement about exclusion and about conduct hearings are also apt to be contractual: the more important the provision to the structure of the procedures, the more likely it is that the parties intended it to be contractual. As Auld LJ said in Keeley v Fosroc International Ltd , [2006] IRLR 961 (which concerned whether provisions relating to enhanced redundancy payments in a Staff Handbook were enforceable as part of individual contracts of employment),

The certainty of what the provision requires: as Swift J observed (in Hameed (loc cit) at para 68), if a provision is vague or discursive, it is the less apt to have contractual status.

I agree with that. However, the Court of Appeal did not accept the second part of his reasoning in Mattu v The University Hospitals Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641, a judgment handed down on 18 May 2012. Under the heading of "The Classification Issue" in a case similar to ours Elias LJ said this:

A key to analysing the particular provisions in our case is found in the judgment of Stanley Burnton LJ, who said this:

In Mezey v South West London and St George's Mental Health NHS Trust [2010] IRLR 512, again dealing with similar problems to those affecting our case, Ward LJ said this:

This deals both with the ability of the court to intervene and to take the correct approach where there is a breach of contract. This may sometimes create surprising results, as occurred in Lim v Royal Wolverhampton Hospitals NHS Trust [2011] EWHC 2178 QB in a judgment of Slade J where she said this:

Only if NCAS regards it as irremediable does the case go on to a capability or other hearing. There is, as Mr Sutton correctly submits by reference to this judgment, an absolute obligation to do so.

The relief available in this case emerges from the authorities which I have cited, but for clarity Edwards v Chesterfield Royal Hospital Foundation; NHS Trust Botham v The Ministry of Defence [2012] 2 WLR 55 indicates the approach which I should take, for Lord Dyson said this:

The complementary regimes of unfair dismissal and breach of contract can operate separately, as Lord Dyson makes clear.

I prefer the arguments of Mr Sutton and Miss Criddle and have decided to uphold the claim. The first issue to decide is categorisation. I hinted earlier that the broad approach, said to be the agreed position, of whether it was permissible to characterise the allegations as misconduct rather than incompetence is too wide. What I am asked to do is to prevent the Trust from breaching the claimant's contract by operating on the decision of Dr Broughton in his decision letter. Here is a way of analysing both the categorisation issue and the seriousness issue.

I accept Miss Chudleigh's submission that the matters relating to confidentiality which emerged from the Taylor report are aptly described as conduct. They are after all taking place outside the workplace where the capability issues are being dealt with as respects Dr Chhabra's conduct and performance at work. She was on a train. They are self-contained. They happened on only two days in 2010. I accept that these could aptly be described as conduct. They could also be described as contributing to an analysis of her performance, in that case the linkage between conduct and capability militates in favour of them being dealt with together under paragraph 4.5.

The point, however, is the way in which the charge has been put. I am asked to restrain the conduct panel being convened to hear the charges. I have already said that as a matter of construction of Dr Taylor's report, the charges do not bear the weight which Dr Broughton gives them. The fourth charge has gone. He has accepted that. The third charge was not upheld by Dr Taylor and part of the first charge was not either. In the mind of Dr Broughton there has been no express re-examination of whether what is left of the charges constitute so serious misconduct as to be dismissible under the disciplinary code, the highest level of misconduct available to it. Even if Dr Broughton were right that all four of these matters constitute gross misconduct as a matter of law entitling the Trust to dismiss, they were bound to be reassessed in the light of Dr Taylor's report. He simply did not see Dr Taylor's report in the correct light and therefore went ahead on the basis of an enlarged criticism of the claimant which Dr Taylor did not support.

The language used in the decision letter itself is telling. It corresponds precisely to the language of Cairns LJ and it corresponds actually to Dr Broughton's thinking about what is wilful. In my judgment, the second part of Dr Taylor's report, which includes the claimant's explanations as to why she did it and her lack of knowledge and understanding of what she was doing are bound to affect a judgment about whether she was tearing up the contract, acting in a way which fundamentally breached it. In my judgment, the claimant was entitled as a matter of contract to have these matters determined in a way which was not under a charge of gross misconduct for which she was dismissible. With respect to counsel in this case, it is not simply classifying these matters as conduct or even misconduct, it is whether the Trust was correct as a matter of law to categorise them as gross misconduct in the decision letter. In my judgment, it erred in so doing and was not entitled to enforce its right of discipline in respect of that.

Dr Broughton told me that he brought to bear on Dr Taylor's report his own experience. But that is not the case which is required here. It is that there has to be sufficient material for this point to be taken against the claimant and it fell far short of it. I have accepted Dr Broughton's sedulous attention to the confidentiality matters. So has Mr Sutton actually because he agrees that certain confidentiality breaches can be wilful and can strike at the very nature of the contractual relationship. But, in my judgment, he broke the claimant's contract when he levied these charges against her for they were not grounded sufficiently in the Taylor report.

That ought to be an end to the case. But, in fairness, the second issue which was addressed to me was as to whether there was a relationship between this conduct and the capability requiring the Trust as a matter of contract to put them both together in the capability procedure. I see the force in Miss Chudleigh's argument that there is not yet a capability hearing. That could only arise as one of the outcomes of the NCAS procedure, that is, a failure of an action plan or a totally intractable relationship. We have not arrived at that stage yet. But at the same time I accept Mr Sutton's contention that this procedure has to be dealt with purposively. It is apt for incorporation on the lines of the judgments in Alexander and Hussain and it does give a right where there is (or there possibly is) a connection between conduct and performance to have the matter referred to NCAS. This is now the modern ethos for dealing with criticisms against practitioners. It does not exclude straightforward disciplinary charges being brought, but in a case where the Taylor report showed some background, explaining the events relating to the breach of confidentiality, these matters were bound by 4.5 to be put through NCAS. Although they occurred outside the workplace the claimant was in fact performing her professional duties for the benefit of the Trust.

There are also problems in putting this matter through the disciplinary process because they relate to Dr Taylor's view. Her approach includes matters which I hold to be exoneration. She regards the claimant as having committed errors of judgment and mistakes. She it is who has to present the case against her at the disciplinary panel, as I read the procedure, and she will be in difficulty doing that, given the admissions she has made which attenuate the approach. After all, on my findings, Dr Taylor has upheld only those complaints against the claimant on breach of confidentiality which she herself admitted. So the process would be quite short and it would be difficult for Dr Taylor to present, in the light of the material disclosed in this case, a clear-cut case of gross misconduct. As I have said, it has to be that case of gross misconduct. Her lesser views are bound to be exploited as concessions.

This case cried out for fair blame and it cried out for fair blame when Dr Taylor gave her report. There were straightforward admissions. They could have been dealt with in a much more sympathetic way. As a matter of contract, since I have held that these could not be categorised as gross misconduct, the fair blame procedure was available as of right to the claimant and the Trust should have activated it.

As to the inadequacies in the procedure, these now seem minor. Legally privileged documents were obtained, but nothing seems to have turned on it. I do not read into this an intention by the Trust come what may to dismiss the claimant. The Trust has made mistakes in the way it operated the procedure, for which Dr Broughton has admitted some responsibility. These are procedural breaches but they do not, in my judgment, count as an attack on the implied term trust and confidence in prejudgment of the case against the claimant.

So I propose to grant injunction number 1 and declaration 1(a) and it will be by reference to the confidentiality complaint contained in the letter so that it is specific to this, and the same in relation to (b) and (c). I do not grant the declaration in (ii). I grant the injunction in (iii)(b) and (c).

I would very much like to thank the legal teams for their help and expedition in completing this trial within time.