McMillan v Airedale NHS Foundation Trust

Miss Elizabeth Joan McMillan is a registered medical practitioner who, since 1^st July 2008, has held the position of Consultant Obstetrician and Gynaecologist with the Airedale NHS Foundation Trust, working principally at the Airedale Hospital, Skipton. She has had an unusual career, qualifying as a nurse in 1981 and a midwife in 1982, before joining Queen Alexandra’s Royal Army Nursing Corp in 1983 as a midwife. In 1988, after leaving the Army with the rank of Captain, she embarked on the study of medicine at the University of Liverpool and, after qualifying in 1993, took a series of positions within the National Health Service before being appointed as a Consultant at Walsall Hospital in September 2002. This was followed by her current appointment with the Defendant Trust. On 12^th August 2009, she was appointed Deputy Medical Director for Airedale Hospital; and on 4^th June 2010 she was awarded a Level 4 Clinical Excellence award backdated to April 2009. Until the unfortunate events which have given rise to the present litigation, she has had an unblemished record throughout her career.

However, on 7^th June 2010, she was involved in what was described as a serious untoward incident when a patient suffered serious and uncontrolled bleeding in the aftermath of a successful caesarean delivery which necessitated emergency surgery to remove her spleen. Fortunately the patient herself has since made a full recovery.

Bleeding of this kind is a rare complication of delivery by caesarean section; and it was inevitable that there would, in due course, be an investigation into what had occurred by way of what was known as a Root Cause Analysis or “RCA”. This took place on 1^st September 2010 and was attended by Miss McMillan amongst others. One of the matters which had to be considered at the RCA was whether the procedure known as “fundal pressure”, which had been applied to the patient’s abdomen during the course of the caesarean procedure by a locum specialist registrar, Dr Sanjeev Bhandare, might have caused or contributed to the bleeding which followed.

I do not have any detailed record of what took place during the course of the RCA meeting, but it appears to be common ground that Miss McMillan said something to the effect that she had had no concerns about the application of fundal pressure and that if she had, she would have said so at the time. But some concern appears to have been expressed by other members of staff subsequent to the RCA meeting as to whether this observation by Miss McMillan did, in fact, represent the views she had previously expressed in discussions with the patient, her family and others.

This led to an investigation initiated by the Medical Director, Dr Andrew Catto; and a report dated 25^th February 2011 was prepared by the investigating officer, Miss Sharon Ray, Head of Training and Development at the Trust, which concluded that there was evidence that Miss McMillan had not provided “a full and honest account” of the circumstances surrounding the care of the patient at the RCA meeting of 1^st September 2010 and decided that there was a case of misconduct for her to answer which should be referred to a disciplinary panel.

This recommendation was adopted by Dr Catto who informed Miss McMillan that the matter would be referred to a disciplinary panel to consider two allegations against her. In the meantime, with effect from 11^th November 2010, Miss McMillan had been excluded from her duties pending the outcome of the investigation; and there was a problem about her salary which was ultimately resolved after an application had been made by Miss McMillan to an Employment Tribunal.

After Miss McMillan had been informed that she would face disciplinary proceedings, she was, for some months, absent on grounds of sickness. But on 17^th October 2011 she was invited to attend a disciplinary hearing which took place on 9^th November 2011. The hearing was chaired by the Chief Executive of the Trust, Miss Bridget Fletcher, assisted by three others. The Trust’s case was presented by Dr Catto; and Miss McMillan was represented by her solicitor, Mr James Rowley of Ryan, of Manchester, assisted by Dr Vas Kavadas, a medical legal adviser with the Medical Defence Union.

The charges which Miss McMillan faced were as follows:

“1.

You did not provide a full and honest account of the circumstances of the care of patient no. 167586 at the Serious Untoward Incident / Root Cause Analysis meeting 2010/8938 held on 1 September 2010; and

2.

You provided conflicting accounts of the circumstances surrounding the care of patient no. 167586 on 8 June 2010 when she visited the patient in ICU and discussed her care with her family; and then on 1 September 2010 at SUI / RCA 2010/8938.”

By its decision letter dated 16^th November 2011, the disciplinary panel upheld both of these allegations. The language in which the charges were formulated is by no means as clear as it might have been; and, indeed, a point was taken during the course of the present proceedings as to the wording of the second charge. But the sting of the allegation is that Miss McMillan had said one thing to the patient or members of her family in the immediate aftermath of the incident itself and something different at the RCA. In essence, the Trust’s case was that she had initially told the patient and her family that the bleeding had been caused by the fundal pressure exerted by Dr Bhandare; whereas, at the RCA, she had said that she had had no concerns on that particular score.

The outcome of the disciplinary proceedings clearly represented a finding of serious misconduct on the part of Miss McMillan. On the basis of what she was alleged to have said previously, the panel concluded that Miss McMillan had not given a full and honest account of her concerns to the RCA. Having come to that conclusion, the disciplinary panel considered the question of sanction. It decided to issue Miss McMillan with a final written warning on condition that she agreed to an action plan being put in place to address improvements in her behaviour, and that she should fully comply with its requirements and demonstrate the necessary improvements. The warning was to be placed on her personal file for a period of 12 months and was to be disregarded after that time, provided that no further misconduct occurred. Any further misconduct was likely to result in future disciplinary action and prompted to dismissal

The decision letter concluded with two further observations. Firstly, it was noted that her exclusion from work had been lifted with effect from 10^th November 2011 and it was proposed that a meeting to discuss her return to work would be held during the week commencing 21^st November 2011. However, the panel also informed Miss McMillan that, in view of the serious nature of her misconduct, the matter would have to be referred to the General Medical Council for its consideration. I understand that the General Medical Council has not yet come to any conclusion as a result of the referral.

Miss McMillan and her advisers were surprised and disappointed by the outcome of the disciplinary hearing. On 30^th November 2011, her solicitors wrote to the Trust indicating an intention to appeal against the findings of the disciplinary panel and its decision to issue a final written warning. On 1^st February 2012, Miss Justine Steele the Trust’s Director of Organisational Development and Workforce, wrote to Miss McMillan and her solicitors informing her that the hearing of the appeal would take place on 1^st March 2012 and would be heard by Mr Ronald Drake, a non-executive director of the Trust, Miss Steele herself and Mr Dilly Anumba, a senior clinical lecturer, consultant in obstetrics and gynaecology, and sub-specialist in fetomaternal medicine at the University of Sheffield. Mr Drake is, in fact, also a solicitor and part time chairman of Employment Tribunals; so it is hardly surprising that he chaired the appeal hearing which subsequently took place.

The letter from Miss McMillan’s solicitors of 30^th November 2011 set out the principal grounds of appeal in summary form in seven paragraphs. It challenged not only the findings and reasoning of the disciplinary panel, but also made wide-ranging allegations about the manner in which the investigation into her conduct had been carried out and the manner in which the case had been presented by Dr Catto. A much more detailed statement of the grounds of appeal, running to no less than 60 pages and 204 paragraphs was subsequently submitted on behalf of Miss McMillan on or about 20^th February 2012.

In the meantime, there had been an exchange of correspondence between Miss Steele and Miss McMillan’s solicitors which has assumed very considerable importance in the present proceedings. On 16^th February 2012, Miss Steele wrote to Miss McMillan and her solicitors stating, amongst other things, that it was proposed to address the majority of the points raised in Ryan’s letter of 30^th November 2011 by way of a re-hearing. In relation to a complaint that not all witnesses whose evidence was relied upon by the Trust had been made available for questioning, Miss Steele indicated that this would be addressed by inviting 11 named witnesses to attend the appeal hearing. She also stated that Miss McMillan and her representatives would have the opportunity to cross-examine Dr Catto.

Perhaps even more pertinently, Miss Steele’s letter went on to say that it was proposed that the appeal panel would consider the evidence and would be entitled to determine its own outcome “in terms of the sanction applied”. This would mean that the panel would have the full range of options available to it as would have been the case at the original disciplinary hearing, namely to uphold the original decision, to reduce the penalty, to increase it or to clear Miss McMillan of misconduct and remove the allegations from her record.

The letter also dealt with various other matters relating to the conduct of the appeal and concluded by asking Miss McMillan to respond with her concerns, if she had any issues with what the appeal panel proposed to do “in terms of procedure, witnesses or process” and to put forward any further requests for consideration by the panel.

Miss McMillan’s solicitors replied on her behalf on 17^th February 2012, dealing with various matters raised in Miss Steele’s letter and specifically expressing their agreement with the approach proposed by the panel that the appeal be dealt with by way of re-hearing. Amongst other things, the letter also asked for three further witnesses to be “warned” to attend and sought disclosure of a number of additional documents. It also asked Miss Steele to confirm whether Dr Catto would be presenting the case on behalf of the Trust at the appeal as he had done at the original hearing. But no specific reference was made to the statement made by Miss Steele in her letter of 16^th February 2012 that the appeal panel would, amongst other things, have the power to increase the penalty imposed by the original disciplinary panel.

Some further correspondence followed. On 20^th February 2012, in addition to the detailed statement of the grounds of appeal, Miss McMillan’s solicitors lodged two copies of a very substantial bundle of documents in support of the appeal. On 24^th February 2012, Miss Steele confirmed that Dr Catto would not be presenting the case on behalf of the Trust at the appeal hearing, since the panel would have pre-read all the material, including both the detailed grounds of appeal and the supporting bundle. There was also a brief exchange of views as to the composition of the panel which did not, however, result in any change or any substantive challenge.

The appeal hearing itself took place, as envisaged, on 1^st March 2012. It took a somewhat unusual course, albeit one which had at least been hinted at in Miss Steele’s letter of 24^th February 2012, in that no-one appeared to present the case against Miss McMillan on behalf of the Trust. Mr Rowley once again represented Miss McMillan, supported by Miss Kavadas; and Mr Drake acted as Chairman and was largely responsible for the conduct of the hearing. Despite what had been said by Miss Steele in her letter of 24^th February 2012, however, I accept that Mr Rowley was somewhat surprised to find that there was no-one representing the Trust with responsibility for presenting the case against Miss McMillan, though he did not comment upon this or make any protest at the time.

I have the advantage of a detailed transcript of the hearing about which I will have more to say in due course. At this stage, I simply make the comment that there are certain nuances of tone, body language and the like which may not be captured by such a transcript. Nonetheless, there was no challenge to its accuracy, and it therefore provides much the best and safest guide to what actually took place at the hearing.

After a brief introduction, the chairman pointed out that, in view of the breadth and range of the criticisms of the decision below and the approach adopted in reaching it, the panel had considered it necessary to have a re-hearing of the evidence. He added that this approach had been agreed by Miss McMillan’s representatives, but he asked for formal confirmation from Mr Rowley to that effect. Mr Rowley made it clear that he did agree; and added that he thought that such a procedure would be in the interests of all parties.

The chairman then made it clear that this would mean that the panel would have to consider all of the evidence and reach its own conclusions. He went on to say that, if the outcome of the process was that the allegations were unfounded, that would be the end of the matter. If, on the other hand, the panel were to find that the allegations were made out, it would then have to consider what, if any, disciplinary action should be taken. In those circumstances, there would, in effect, be a two-stage process, with questions of sanction being considered separately at a later stage. He directed one further observation at Mr Rowley, saying, “The range of steps that we have power to take are wide, as you are aware.”

The hearing continued for most of the day. The Chairman indicated that the panel had read all the relevant papers in advance. The Trust’s witnesses were then called, were asked to confirm their witness statements and were briefly examined by the Chairman. Mr Rowley was then given the opportunity to question them on behalf of Miss McMillan. Further questions were put to the witness by Mr Drake and, to a more limited extent by Mr Anumba and, occasionally, by Miss Steele. The panel then heard from Miss McMillan herself and her witnesses. The hearing concluded with submissions from Mr Rowley, whereupon the panel stated that it would reserve its decision.

The Panel reconvened to consider its decision on 12^th March 2012 and concluded that both of the charges made against Miss McMillan were well founded. It set out its reasons in an 18 page document; and Miss McMillan was informed of the outcome by way of a letter from Miss Steele dated 23^rd March 2012. In view of its findings, the panel took the view that it should go on to decide what sanction should be imposed and this was communicated to Miss McMillan in the letter from Miss Steele of 23^rd March 2012, in which both parties were invited to make any written submissions on sanction within ten days.

Once again, the outcome of the appeal process appears to have come as both a surprise and a shock to Miss McMillan and her advisers. Leading counsel was instructed on her behalf and further communications took place between Miss McMillan’s solicitors and the Trust as to the timetable for any submissions and whether there should be a further oral hearing. But Miss McMillan’s solicitors also raised significant concerns about the decision and reasoning of the appeal panel; and on 18^th May 2012, they sent a 14 page letter to Miss Steele, criticising the manner in which the appeal hearing had been conducted and the reasoning on which the Panel’s decision was based. The letter asserted that, in view of these alleged deficiencies, there had not been a proper re-hearing and it formally asked for a full re-hearing of the appeal. The letter concluded that if the Trust was not minded to accede to this request, all options remained open to Miss McMillan, including her “contractual rights.”

The trust did not accede to this request for a substantive re-hearing of Miss McMillan’s appeal; and an oral hearing on the issue of sanction was fixed for 27^th June 2012. A few days prior to this hearing, the Trust wrote to Miss McMillan’s solicitors dealing with the detailed arrangements for the hearing and enclosing a copy of the submissions received by the panel on the issue of sanction from Dr Catto on behalf of the Trust. This document contained a further unwelcome surprise for Miss McMillan and her advisers. It was contended that the conduct of Miss McMillan amounted to a breach of trust which was fundamentally incompatible with her continued employment as a Consultant Obstetrician and Gynaecologist with the Trust. It asserted that, as a result of this episode, consultant colleagues and professional clinical leaders had lost trust and confidence in her and that the relationship between Miss McMillan and her colleagues had fundamentally and irrevocably broken down. In effect, therefore, it called for her dismissal, though it is not apparent whether what was contemplated was a summary dismissal or a termination of her contract on notice.

In the light of this letter, further consideration was given by Miss McMillan and her legal advisers as to how they should proceed. A further letter was sent by Miss McMillan’s solicitors to the Trust on the morning of 27^th June 2012 reasserting the criticisms set out in their earlier letter of 18^th May 2012 and stating that the request for a substantive re-hearing would be renewed by leading counsel on behalf of Miss McMillan, who would also ask that the panel should recuse itself so that a fresh appeal panel could be convened. If the panel refused to recuse itself, the letter stated that Miss McMillan would then withdraw her appeal and would commence proceedings against the Trust for breach of contract. In any event, Miss McMillan and her advisers would not engage in any further submissions on sanction before the appeal panel as presently constituted. The letter also indicated that, if necessary, immediate injunctive relief would be sought on behalf of Miss McMillan if the Trust or the appeal panel sought to continue with the hearing and dismiss her from her post.

A somewhat acrimonious hearing took place later that morning at which both sides were represented by leading counsel. Miss O’Rourke QC, on behalf of Miss McMillan renewed her criticisms of the conduct and reasoning of the appeal panel in fairly vigorous terms and invited the panel to conclude that the proper course would be for a substantive re-hearing before a different panel. She stated that Miss McMillan and her legal team had no trust and confidence in the panel as presently constituted and made it clear that she was not asking the panel itself to review its decision. Indeed, she went on to assert, seemingly for the first time, that the Chairman had displayed apparent bias in the way in which he had conducted the hearing. All this was challenged by Mr Bowers QC, on behalf of the Trust, who contended that the panel should not recuse itself and that, in any event, it had no jurisdiction to review its substantive decision. He invited the panel to proceed to consider the question of sanction.

After a brief adjournment, the Chairman informed Miss O’Rourke that the panel had concluded that it was not appropriate for its members to recuse themselves and gave brief reasons for the decision. He offered Miss O’Rourke the opportunity to take instructions in the light of this decision. But she declined the offer and made it plain that Miss McMillan’s appeal was now withdrawn and that, in her submission, the panel had no further jurisdiction to consider the question of sanction. Further submissions were then made on each side, with Mr Bowers contending that it was not open to an Appellant to withdraw the appeal once it was part-heard. There followed some discussion as to whether the panel should take independent advice and Miss McMillan and her advisers then withdraw and took no further part in the hearing. Mr Bowers then made his submissions on sanction and the panel adjourned to consider its decision and, if necessary, take independent advice.

It appears that some form of independent legal advice was taken by the panel; and on 5^th July 2012 Miss McMillan’s solicitors were informed that, in the light of the advice which they had received, the panel had concluded that it was open to it to proceed to consider the question of sanction. On 9^th August 2012, Miss Steele informed Miss McMillan’s solicitors that the panel would reconvene for this purpose on 16^th August 2012.

On 14^th August 2012, the present proceedings were commenced by which Miss McMillan sought an injunction to restrain the Trust from reconvening the appeal hearing to consider issues of sanction and, further or alternatively, to restrain the Trust from increasing the disciplinary sanction on any such hearing. The claim form also included a claim for damages. Particulars of Claim were served with the Claim Form, though they were subsequently amended on 5^th September 2012.

Miss McMillan also sought immediate interim injunctive relief. Her application came on for hearing, on short notice, before His Honour Judge Raynor QC on 15^th August 2012, when it was disposed of by way of undertakings under which the Trust undertook, until trial or further order, not to reconvene an appeal panel hearing to consider issues of sanction or any further matters under the appeal initiated by Miss McMillan and not to seek to terminate her contract of employment.

The trial of the action eventually took place before me over eight days in December 2012 and February 2013. Miss McMillan was represented by Miss O’Rourke QC; and Mr Mark Sutton QC appeared on behalf of the Trust. I was provided with three lever arch files of documents; and I heard evidence from Miss McMillan herself, her solicitor Mr James Rowley and Miss Vas Kavadas of the Medical Defence Union, and from Mr Drake and Miss Steele on behalf of the Trust. This is my judgment on the issues which fall to be determined in the light of this evidence.

The principal issues in the case are of an entirely contractual nature and do not depend to any significant degree on any of the extensive evidence which I heard during the course of the trial.

The fundamental question raised in this litigation is whether the appeal panel has power to increase the sanction imposed upon Miss McMillan after the original disciplinary hearing. It will be recalled that this resulted in a final written warning; whereas the Trust now contends that the appeal panel should conclude that Miss McMillan should be dismissed from her position. It is Miss McMillan’s case that, under her contract of employment and the disciplinary code incorporated within it by reference, there is no power on the part of an appeal panel to increase the sanction in this way.

As a matter of convenience, this was referred to as a jurisdictional question. But, in truth, it turns solely upon the interpretation and application of the contract between Miss McMillan and the Trust. Clearly the Trust must abide by its contractual obligations. If, as is contended on behalf of Miss McMillan, its disciplinary procedures have contractual force and do not permit an increase in sanction on appeal, the Trust would be in breach of its contractual obligations to Miss McMillan if it acted upon a decision by the appeal panel that she should be dismissed. On the face of it, therefore, any dismissal in such circumstances would be both wrongful and unfair, thus entitling Miss McMillan, at least in principle, to an award of damages and compensation. On the other hand, the court would not normally grant an injunction to prevent a dismissal in breach of contract. Nonetheless, the point remains one of considerable importance for both Miss McMillan and the Trust.

The second issue which falls to be determined is whether Miss McMillan was entitled to withdraw or abandon her appeal after the appeal panel had reached an adverse decision on the substantive merits of the appeal. Obviously, the point is moot if I were to determine that the appeal panel had no power to increase the sanction initially imposed upon Miss McMillan; but it remains of some significance if I were to hold the contrary. Once again, as it seems to me, this question can only be resolved by a consideration of the express and implied terms of the contract between Miss McMillan and the Trust.

The third issue arises out of an alternative argument advanced on behalf of the Trust in case I were to find that, on the true construction of Miss McMillan’s contract of employment, there was no power to increase sanction in the event of an unsuccessful appeal. In effect, the contention is that the exchange of correspondence between Miss Steele and Miss McMillan and her advisers in February 2012 gave rise to some form of collateral agreement between the parties that the appeal would proceed by way of re-hearing and that, expressly or by necessary implication, it was also agreed that, if the appeal was unsuccessful, the question of sanction would be at large so that the appeal panel could increase the penalty if it considered it was appropriate to do so in the light of its factual findings.

On behalf of Miss McMillan, however, it is contended that the procedural proposals set out in the letter from the Trust dated 16^th February 2012 did not constitute any form of offer, that they were not accepted by her solicitors on her behalf, that there was no intention to enter into legal relations, that there was no sufficient consideration for any relevant promise and that the relevant exchange of correspondence could not, in any event, have been effective to vary her existing contractual rights. An issue was also raised as to whether Mr Rowley had authority to enter into any such agreement. Accordingly, the question is whether there was a valid and enforceable agreement of the kind contended for on behalf of the Trust.

But, even if there was some binding agreement of this kind, it is Miss McMillan’s case that the manner in which the appeal panel conducted the appeal and formulated its conclusions amounted to a repudiatory breach of any such contract on the part of the Trust as a result of which Miss McMillan was discharged from any obligation to submit to an increased sanction. This is the fourth issue which I have to determine; and it potentially gives rise to the need to consider the extensive evidence which was adduced about the conduct of the hearing. Whether that is necessary or appropriate is a matter which I will have to consider in due course.

It is fair to say that, in the Amended Particulars of Claim, at paragraphs 26, 26A and 28, the criticisms of the manner in which the appeal panel conducted itself are put forward as a series of free-standing allegations which are said to have constituted a breach of Miss McMillan’s contractual rights. But it was made clear in Miss O’Rourke’s opening skeleton, and was specifically accepted by Mr Sutton in his closing submissions, that these allegations were essentially responsive to the Trust’s case based upon some form of collateral contract. So that is the basis upon which I approach this issue.

Finally, the Trust raises various issues which are essentially directed to the question of remedy. It is submitted that, as a matter of discretion, the court should not interfere in the conduct of part-heard internal disciplinary proceedings and should not be willing to grant an injunction, which, it is said, would have the effect of specifically enforcing a contract of employment. Furthermore, it is contended that delay on Miss McMillan’s part in seeking relief from the court should itself be a bar to such relief.

In my judgment, the starting point is to be found in the express provisions of Miss McMillan’s contract of employment. This is a detailed written document dated 20^th August 2008 which appears, on its face, to represent a complete statement of the mutual rights and obligations of the parties. Indeed, at clause 34, it contains what is commonly referred to as an entire agreement clause.

At clause 3 of the contract there are set out what are described as the parties “General Mutual Obligations”. The clause reads as follows:

“Whilst it is necessary to set out formal employment arrangements in this contract the Trust recognises that you are a senior and professional employee who will usually work unsupervised and frequently have the responsibility for making important judgments and decisions. It is essential therefore that you and the Trust work in the spirit of mutual trust and confidence. You and the Trust agree to the following mutual obligations in order to achieve the best for patients and to ensure the efficient running of the service:

•

To co-operate with each other;

•

To maintain goodwill;

•

To carry out our respective obligations in agreeing and operating a Job Plan;

•

To carry out our respective obligations in accordance with appraisal arrangements;

•

To carry out our respective obligations in devising, viewing, revising and following the organisation’s policies, objectives, rules, working practices and protocols.”

Clause 17 provided that if Miss McMillan wished to raise a grievance about her employment, she might do so in accordance with the Trust’s grievance procedure. Of greater importance, however, for present purposes is clause 18, which is headed “Disciplinary Matters”, and provides as follows:

“Wherever possible, any issues relating to conduct, competence and behaviour should be identified and resolved without recourse to formal procedures. However, should the Trust consider that your conduct or behaviour may be in breach of acceptable practice or your code of conduct or that your professional competence has been called into question, we will resolve the matter through our discipline procedures, subject to the appeal arrangements set out in those procedures.”

Though the agreement is a detailed document, it does not, I think, purport to be comprehensive, since it clearly envisages that, as in most employment situations, the precise details of the employee’s duties would have to be determined by process of mutual consultation and agreement within the workplace. In this context, Mr Sutton QC reminded me of the observations of Lord Hoffman in Carmichael v National Power Plc [1999] ICR 1226 in which he referred to the various sources from which the contractual intentions of the parties to an employment contract might fall to be determined. Furthermore, quite apart from the express provisions of clause 3, Mr Sutton relied upon a term of the kind which would normally be implied into a contract of employment, namely that Miss McMillan would not, without reasonable cause, act in a manner likely to destroy or seriously damage the relationship of mutual trust and confidence between herself and the Trust.

The latter proposition was not seriously challenged on behalf of Miss McMillan and I will have to consider its implications at a later stage in relation to the issues which I have to resolve. But I do not see that I can obtain any relevant assistance from the sort of approach referred to by Lord Hoffman in the Carmichael case, since it is not suggested that there was any relevant background in the form of established custom and practice within the Trust which might have any bearing upon the Trust’s disciplinary processes.

On the face of it, clause 17 is clearly apt, in my judgment, to incorporate the Trust’s disciplinary procedures into Miss McMillan’s contract of employment. Indeed, the contrary was only very faintly argued by Mr Sutton, who pointed out that not all provisions of a disciplinary code referred to in the body of a contract of employment would be apt to create mutually enforceable obligations, since they might be too vague or be merely aspirational or hortatory in nature. That may be so, but he did not identify any relevant provisions within the Trust’s disciplinary procedures which might fall to be categorised in this way.

The source of the distinction between provisions of a document such as a disciplinary code which have contractual effect and those which do not is, I think, to be found in the observations of Hobhouse J (as he then was) in Alexander v Standard Telephones & Cables Limited (No 2) [1991] IRLR 286, 292-3. There have been a number of cases in which this distinction has since been considered, but I think it is probably necessary to refer only to one, namely the decision of Andrew Smith J in Hussain v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670 (QB). That involved a clause in the contract of employment of a Consultant Paediatrician which was in similar, though not quite identical terms to clause 17 of Miss McMillan’s contract.

The clause in question was, once again, headed “Disciplinary Procedures” and continued in these terms:

“Wherever possible, any issues relating to conduct, competence and behaviour should be identified and resolved without recourse to formal procedures. However, should we consider that your conduct or behaviour may be in breach of normal standards of behaviour, or that your professional competence has been called into question, we will resolve the matter through our disciplinary or capability procedures, subject to the appeal arrangements set out in those procedures.”

The judge reviewed much of the earlier case law and had little difficulty in concluding that the clause in question was effective to incorporate the relevant terms of the disciplinary code into the agreement. At paragraph 166 of his judgment, after considering various other arguments, he said this:

“Thirdly, I would, in any case, conclude that the words of clause 17 are sufficiently clear to incorporate terms of the Practitioner’s Disciplinary Procedure including terms concerning conduct hearings that might lead to dismissal (which were introduced into the Practitioner’s Disciplinary Procedure by reference to the Staff Disciplinary Procedure) and concerning the preparations and arrangements for such hearings. I do not accept that the reference to matters being resolved “through” disciplinary and capability procedures connotes that the procedures are to be followed only in outline or in broad terms. To my mind, it connotes that procedures are to be followed, providing and in so far as they are apt to be contractual and the wording of the relevant provisions indicates that they were intended to be mandatory.”

It is convenient to pick up another point which was briefly dealt with by Andrew Smith J. in the Hussain case. One of the submissions made by Counsel for the Trust in that case who (as it happens, was Mr Sutton QC) was that the implied term of mutual trust and confidence which was normally to be found in a contract of employment did not extend to cover the dismissal of an employee so as to confer an independent common law right to damages. That principle was established in Johnson v Unisys Limited [2003] 1 AC 518. But, as Andrew Smith J. pointed out, this did not mean that the law prevented an employer and employee from agreeing that disciplinary rules should be incorporated into a contract of employment so as to give rise to a claim for damages if they were contravened. See paragraph 161 of his judgment, referring to the decision of the Court of Appeal in Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2010] EWCA Civ 571 at paragraph 27.

Though each case of this kind must ultimately turn on the precise language used in the relevant contract, I am in no doubt that I should follow the approach adopted by Andrew Smith J. in the Hussain case in which he had to consider a contractual provision which was very similar indeed to clause 18 of Miss McMillan’s contract of employment. I acknowledge, however, that it may still remain necessary to examine the wording of the Trust’s disciplinary procedures in order to determine whether they are apt to create mutually binding obligations, rather than being merely aspirational or hortatory. But I would add one further important observation at this stage. Clause 18 makes specific reference to the “appeal arrangements set out in those procedures”. As it seems to me that is a very strong indication indeed that the provisions governing appeals set out in the relevant disciplinary procedures were intended to have contractual effect.

It is those disciplinary procedures to which I must now, therefore, turn. For many years the disciplinary process for hospital practitioners had been governed by Circular HC 90 (9). However, owing to concerns about the consequences of the quasi-judicial disciplinary procedures contained in this circular, new provisions have since been introduced in accordance with the framework set out in a document known as Maintaining High Professional Standards in the Modern NHS or “MHPS” issued in 2003.

On 18^th April 2008, the Trust set out its disciplinary procedures in a document entitled “Procedures for Handling Concerns Regarding Medical and Dental Staff Conduct and Capability”, which I will refer to simply as its “Procedures”. It is not entirely clear to me whether this was the first document of its kind which was promulgated by the Trust in the wake of MHPS; but the 2008 document clearly laid down the procedures which were in force at the time when Miss McMillan’s contract of employment was executed.

The introduction recites the fact that the Procedures were intended to implement the MHPS framework within the Airedale NHS Trust and that they had been agreed by the Trust and by the Local Negotiating Group. They were to be reviewed after three years unless circumstances arose which indicated the need for review at an earlier date. Part I then dealt with the process to be followed once a concern arose. If an informal route proved inappropriate or unsuccessful, there would normally be an investigation into the concerns in question. This might lead to a restriction of practice and exclusion from work, which was the subject matter of Part II of the Procedures. But such an investigation might also give rise to formal disciplinary proceedings. Those were dealt with in Part III and Part IV of the Procedures. The distinction between the two was that Part III was directed to misconduct on the part of any employee of the Trust, including medical staff, whereas Part IV was concerned with issues as to the professional capability of doctors and dentists. In the present case, the procedure invoked by the Trust was in accordance with Part III, rather than Part IV; and there was no challenge on behalf of Miss McMillan to the appropriateness of the procedure adopted. Accordingly, the primary focus of my analysis must be upon the provisions of Part III; but some assistance on matters of interpretation and application may perhaps be gained from consideration of the provisions of Part IV.

Part III is, in fact, headed “Conduct of Hearings and Disciplinary Procedures”. Paragraph 1 sets out the following general principle:

“Misconduct matters for doctors, as for all other staff groups, is a matter for the Trust to deal with and must be resolved locally. All issues regarding the misconduct of doctors and dentists will be dealt with under the Trust’s procedures covering other staff charged with similar matters. The Trust will nevertheless seek advice from the NCAS in conduct cases, particularly in cases of professional conduct.”

Part III continues by referring to various different categories of misconduct, setting out examples of what were likely to be regarded as gross misconduct. At paragraph 8, it provides that each case must be investigated, but goes on to state that “as a general rule” no employee should be dismissed for a first offence unless it was one of gross misconduct.

But Part III does not set out the details of its disciplinary processes. Those were set out in a document described as the Trust’s “Disciplinary Policy”; and it was common ground, as I understand it, that the relevant version of this document was the one included in the trial bundles and which was stated to be effective from 12^th January 2011, presumably as a result of a review of earlier procedures.

I will refer to this document as the “Disciplinary Code” or simply the “Code”. It provides that most cases of minor misconduct would be dealt with informally. However, at paragraph 1.2, it states that cases of a more serious nature, or repeated instances of minor misconduct, would be dealt with through the formal disciplinary procedure and could result in dismissal. At paragraphs 4.2 to 4.6, the Code provides for an investigation into allegations of misconduct which might be followed by a formal disciplinary meeting. Paragraph 4.5 provides that the employee would be notified in writing of the time and date of such a meeting and that the notification would contain sufficient information about the alleged misconduct and its possible consequences to enable the employee to prepare an answer to the case to be considered at the meeting. By paragraph 4.5, copies of any written evidence intended to be relied upon had also to be served with the notification.

The conduct of the disciplinary meeting itself was the subject of specific provision at paragraphs 4.7 to 4.13. It was to be chaired by an appropriate manager, a member of the Human Resources Team was to be present in an advisory capacity and with responsibility for making a note of the proceedings, and the investigating manager was also to be present and would have the responsibility for presenting the case against the employee. I note that this would appear to be a mandatory provision. In his turn, the employee would then be given the opportunity to present his case, including calling witnesses and putting forward any mitigating circumstances. If dismissal was a potential outcome of the meeting, a manager with the appropriate authority should be involved in the meeting. I do not know whether the formal notification of the disciplinary meeting sent to Miss McMillan specifically alerted her to the possibility of dismissal in the event of a finding of gross misconduct, though I note that the management’s formal statement of case against her dated 31^st October 2011 did not do so. But no point was taken on any failure to identify such potential consequences at that stage so I need not consider it further.

Be that as it may, the various disciplinary penalties which might be imposed as a result of a disciplinary meeting were set out at paragraphs 4.14 to 4.22 of the Code. It was a matter for “managers” to decide on the appropriate penalty, taking into account the seriousness of the misconduct and any mitigating circumstances. Where misconduct was found, it would be usual to give the employee a first written warning, unless it was a repeated offence or an offence of gross misconduct. If the misconduct was sufficiently serious, but fell short of amounting to grounds for dismissal, or if there was a current warning about conduct in place, a final written warning might be appropriate. This might be the case where the employee’s actions had had or were liable to have had a “serious or harmful impact on the Trust and/or patient safety”.

However, by paragraph 4.19, if a further act of misconduct occurred of a similar nature within 12 months of a written warning, or if there was an act of gross misconduct, the employee would normally be dismissed. By clause 4.20, gross misconduct was defined as, “misconduct serious enough to destroy the employment contract between the employer and employee and make any further working relationship with the Foundation Trust impossible”. It was stated that it was normally restricted to “very serious offences for example physical violence, theft or fraud”. However, paragraph 4.20 refers to a rather more extensive list of possible examples which were set out in Appendix C of the Code, which included, amongst other things “dishonestly relating to employment matters”.

Appeals were the subject of some limited further provisions at paragraphs 4.23 to 4.26. In view of the central importance of these provisions, I will set them out in full:

“4.23

An employee can appeal against a written warning or dismissal. They should do so in writing within ten working days of receiving notification of the outcome of the disciplinary meeting to the Chair of the meeting, setting out the grounds for their appeal. In exceptional circumstances this period can be extended.

4.24

A sub-committee of the Foundation Trust Board will hear the appeal (one executive director and one non-executive director). They will be supported by a member of the HR team.

4.25

The employee will be invited to an appeal meeting normally within seven working days of receipt of their letter and given five working days notice of the meeting.

4.26

There will be no further right of appeal.”

There are three appendixes to the Code. Appendix A sets out various exceptions to the procedure, none of which are in point for the purposes of the present case. Appendix B provides further guidance for the conduct of a disciplinary meeting, together with an illustrative flow chart. For present purposes, it is probably only necessary to note that the suggested format clearly envisages that the investigating manager should state the allegations and outline the case against the employee and should go through the available evidence, including, where necessary, calling witnesses. All parties would have the opportunity to question witnesses and, of course, the employee was entitled to state his case, ask questions, present evidence and where necessary call witnesses on his own behalf. Appendix C, to which I have already referred, sets out a series of examples of what might be regarded as serious gross misconduct.

But it may also be necessary to have regard to the provisions of Part IV of the Trust’s Procedures, which are directed to the resolution of issues of capability. Since this document deals with both conduct and capability issues, some assistance in interpreting the Disciplinary Code may be obtained by comparing and contrasting the relevant provisions. Furthermore, Mr Sutton contended that, in appropriate circumstances, it may be possible to “read across” from Part III to Part IV in order to fill any gaps in the procedures set out in Part III or the Conduct Code. He relied, in particular, on the decision of the Court of Appeal in Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789.

That was a case in which a doctor employed by the defendant Trust was the subject of disciplinary proceedings arising out of alleged misconduct, rather than capability concerns. The question arose as to whether he was entitled to be legally represented at the disciplinary meeting. At first instance, Penry Davey J. held that he was not so entitled and declined to grant an injunction or declaration.

The contractual position was governed by what appears to have been a document based upon the MHPS which was very similar in its structure and scope to that with which I am concerned in the present case. Proceedings for misconduct were addressed in Part III; whereas capability issues were addressed in Part IV. The provisions of Part III made no reference to any form of legal representation; whereas, under Part IV, it was expressly provided that the practitioner was entitled to be represented by “a friend, partner or spouse, colleague or a representative” who might be from or retained by a trade union or defence organisation. Such a representative might be legally qualified but would not, however, be representing the practitioner “formally in a legal capacity”.

The position adopted initially by both the Trust and the Secretary of State (who was also a defendant) was that Part III was clear and that there was, therefore, no right to any form of legal representation. However, during the course of the appeal, it was conceded on behalf of both defendants that “it would be illogical to provide the practitioner facing misconduct proceedings with a lower level of protective representation than one facing capability or health proceedings.” This concession was recorded at paragraph 48 of the judgment of Smith LJ who both there and in the following paragraph specifically stated that she considered that it was correctly made. In the circumstances, at paragraph 49, she stated that, in her judgment, it was clear that “the contractual rights to representation of all practitioners facing formal proceedings (whether for misconduct, capability or health) are as set out in paragraph 22 of Part IV of MHPS. The scope of the representation is also defined in paragraph 22; it includes presenting the case, calling witnesses and making submissions”.

Smith LJ then went on to consider the implications of the qualification that any lawyer representing the employee should not do so “formally in a legal capacity”. She held that the expression was meaningless and should be “blue pencilled”. After making various further observations on the proper approach to the construction of a contractual document, she went on to deal briefly with certain other points which were no longer material.

But she had already addressed a comparatively minor point as to whether the Trust should be restrained from including certain material in the bundle of documents prepared for the disciplinary hearing. Penry Davey J. had rejected an application to that effect on behalf of Dr Kulkarni, stating that it was misconceived and that the High Court was not the proper vehicle for the management of internal disciplinary proceedings. At paragraph 22 of Smith LJ summarily dismissed an appeal on the point in the following words:

“In my judgment, Penry Davey J was plainly right, for the reasons he gave, to refuse to allow the High Court to become involved in the micro-management of disciplinary hearings. I would dismiss that ground of appeal and say no more about it, save to observe that the Trust will no doubt have the benefit of legal advice as to the admissibility of such evidence and its relevance or otherwise to the issues before them.”

I mention this particular point at this stage, since Mr Sutton lays considerable emphasis on the restrictive scope of High Court proceedings in cases of this kind, as exemplified by this passage in the judgment of Smith LJ and in other cases.

Capability issues relating to a medical or dental practitioner seem to me to raise very different considerations from allegations of misconduct, in view of the need to afford proper protection to the public. At paragraph 3 of Part IV of the Trust’s Procedures, it is explained that issues of this kind arise where there has been “a clear failure by an individual to deliver an adequate standard of care, or standard of management, through lack of knowledge, ability or consistently poor performance”. At paragraph 8, it is recognised that some cases would cover both conduct and capability issues and that cases of this kind might be complex and difficult to manage. But usually, they should be dealt with together at a capability hearing.

Paragraph 17 deals with the procedure to be followed prior to the hearing in capability cases. There must be an exchange of documentation, including witness statements, on which any party wishes to rely. If a witness statement is contested, but is intended to be relied upon, the Chairman must invite the witness to attend, though it is pointed out that he could not positively require anyone other than an employee to do so. However, if the evidence is contested and the witness is unable or unwilling to attend, the panel must reduce the weight to be given to the evidence, as there would not be the opportunity to challenge it properly.

Paragraphs 18 to 20 deal with the constitution of the disciplinary panel; and paragraphs 21 and 22 address the question of representation in terms substantially similar to those considered by the Court of Appeal in the Kulkarni case.

Paragraphs 23 to 27 deal with the conduct of the capability hearing itself. They are significantly more detailed and prescriptive than the analogous provisions of the Disciplinary Code. Paragraph 23 deals with the procedure by which witnesses are to give their evidence. The witness was to confirm his written statement and give any supplementary evidence; and the side calling the witness was entitled to question him. The other side was then entitled to put its own questions to the witness, and the panel itself might also do so. Finally, the side calling the witness was entitled to seek to clarify any points which may have arisen during the course of questioning; but it was not entitled to raise new evidence at this point.

Paragraph 23 also deals with the order of presentation. The case manager was to present the management case and call any witnesses, and the Chairman was then entitled to invite him to clarify any matters arising. In turn, the practitioner or his representative was entitled to present the practitioner’s case and call witnesses, followed, once again, by any necessary clarification required by the panel. Finally, the case manager was to be invited to make a brief closing statement summarising the key points in the management case; and, similarly, the practitioner or his representative would be invited to make his own closing statement. The panel was then to retire to consider its decision.

Paragraph 24 then dealt with the range of decisions available to the panel. These would range from a decision that no further action was required, or that there should be an agreement requiring an improvement of clinical performance within a specified timescale, or that the employee should be given a first written warning, a final written warning or that the employee’s contract should be terminated.

Paragraphs 28 to 46 set out detailed provisions governing appeals in capability cases. Paragraph 28 makes an important preliminary point in these terms:

“Given the significance of the decision of a capability panel to warn or dismiss a practitioner, it is important that a robust appeal procedure is in place.”

Paragraph 29 continues in these words:

“The appeals procedure provides a mechanism for practitioners who disagree with the outcome of a decision to have an opportunity for the case to be reviewed. The appeal panel will need to establish whether the Trust’s procedures have been adhered to and that the panel in arriving at their decision acted fairly and reasonably based on:

•

A fair and thorough investigation of the issue;

•

Sufficient evidence arising from the investigation on assessment on which to base the decision;

•

Whether in the circumstances the decision was fair and reasonable and commensurate with the evidence heard

It can also hear new evidence submitted by the practitioner and consider whether it might have significantly altered the decision of the original hearing. The appeal panel, however, should not rehear the entire case.”

Paragraph 31, to which reference was made at paragraph 29, was in these terms:

“The predominant purpose of the appeal is to ensure that a fair hearing was given to the original case and a fair and reasonable decision reached by the hearing panel. The appeal panel has the power to confirm or vary a decision made at the capability hearing, or order that the case is reheard. Where it is clear in the course of the appeal hearing that the proper procedure has not been followed and the appeal panel determines that the case needs to be fully re-heard, the Chairman of the panel shall have the power to instruct a new capability hearing.”

Paragraph 32 deals with the position of the practitioner pending the appeal; and paragraphs 33 to 37 deal with the constitution of the appeal panel and the timetabling of the appeal. Paragraphs 38 to 40 set out the powers of the appeal panel. Paragraph 38 provides that it has the right to call witnesses of its own volition, but that it must notify both parties in advance of the hearing and provide them with a written statement from any such witness. At paragraph 39 it is provided that where “exceptionally” the appeal panel decides during the course of the hearing that it needs to hear the evidence of a witness not called by either party, then it should have the power to adjourn the hearing to allow for a written statement to be obtained from the witness and made available to both parties. Finally, at paragraph 40, it is further provided that if, during the course of the hearing, the appeal panel determines that new evidence needs to be presented, it must consider whether an adjournment was appropriate. Much would depend on the weight of the new evidence and its relevance. But the panel would have the power to determine whether to consider the new evidence as relevant to the appeal, or whether the case must be reheard, on the basis of the new evidence, by a capability hearing panel.

Paragraphs 41 to 44 deal with the conduct of the appeal hearing. All parties were to have all documents, including witness statements, from the previous capability hearing, together with any new evidence; and, as at the original capability hearing, the practitioner was entitled to be represented. By paragraph 43, it was provided that both parties were to present full statements of fact to the appeal panel and would be subject to questioning by the other party, as well as the panel. When all the evidence had been presented, both parties should briefly sum up. No new evidence could be introduced at this stage. Finally, by paragraph 44, after receiving the views of both parties, the panel was required to consider and make its decision in private; and paragraph 46 required the decision of the appeal panel to be made in writing to the appellant and copied to the Trust’s case manager within five working days of the conclusion of the hearing. This decision was stated to be “final and binding”; and it was specifically provided that there should be no correspondence on the decision except and unless clarification was required about what had been decided, but not on the merits of the case.

Paragraphs 47 to 51 appear under the general heading “Termination of Employment with Performance Issue Unresolved”. There is nothing analogous to be found in the Disciplinary Code dealing with conduct issues. Paragraph 47 is in these terms:

“Where the employee leaves employment before disciplinary procedures have been completed, the investigation must be taken to a final conclusion in all cases and capability proceedings must be completed wherever possible, whatever the personal circumstances of the employee concerned.”

Paragraph 48 continues as follows:

“Every reasonable effort must be made to ensure the employee remains involved in the process. If contact with the employee has been lost, the Trust must invite them to attend any hearing by writing to both their last known home address and their registered address (the two will often be the same). The Trust must make a judgment, based on the evidence available, as to whether the allegations about the practitioner’s capability are upheld. If the allegations are upheld, the Trust must take appropriate action, such as requesting the issue of an alert letter and referral to the Professional Regulatory Body, referral to the Police, or to the Protection of Children Act List (held by the Department for Education and Skills).”

Paragraphs 49 and 50 deal with the situation where an employee facing capability proceedings is suffering from ill health. Finally, at paragraph 51, specific provision is made in relation to cases where there are allegations of abuse against a child.

Some rather desultory evidence was elicited during the course of the cross-examination of Mr Drake and Miss Steele as to whether they had ever had experience of disciplinary procedures under which a penalty imposed upon an employee might be increased on appeal. I do not gain any assistance from evidence of this kind. On the other hand, I was not referred to any reported case in which it had been accepted or held that there could be such an increase in sanction where the position was governed by the sort of procedure adopted within the NHS in accordance with the requirements or recommendations of MHPS.

There was, however, one background matter which may have some bearing on the interpretation of the relevant contractual provisions. The Advisory, Conciliation and Arbitration Service, commonly known as ACAS, is an independent body, largely funded by the Department for Business Innovation and Skills, which seeks to promote the best practice within the workplace, provides advice and guidance on employment policies and offers a service for dealing with industrial disputes. It publishes a Code of Practice on Disciplinary and Grievance Procedures, most recently, as I understand it, revised with effect from 6^th April 2009. This code was issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992 and came into effect by order of the Secretary of State on 6^th April 2009. Employment Tribunals are required to take the code into account when considering relevant cases before it; and there is a provision allowing for an adjustment of any award in the event of any unreasonable failure on either side to follow the guidance set out in the code.

Paragraphs 25 to 28 of this code deals with appeals. Paragraph 25 is in these terms:

“Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing.”

Paragraph 26 states that the appeal should be dealt with impartially and, wherever possible, by a manager who had not previously been involved in the case. Paragraph 27 refers to the worker’s statutory right to be accompanied at any appeal hearing; and paragraph 28 provides that employees should be informed in writing of the results of the appeal hearing as soon as possible.

But, in addition to the code, ACAS also publishes a booklet entitled “Discipline and Grievances at Work: The ACAS Guide”. Whilst this does not have the statutory status of the code, it offers more comprehensive advice and guidance on dealing with disciplinary and grievance situations. The version which was in force at the time of the disciplinary proceedings taken against Miss McMillan appears to have been dated 1^st December 2010. At pages 33 to 34, it quotes the provisions of the code of practice dealing with appeals to which I have already referred. But it also adds a commentary to the following effect:

“The opportunity to appeal against a disciplinary decision is essential to natural justice, and appeals may be raised by employees on any number of grounds, for instance new evidence, undue severity or inconsistency of the penalty. The appeal may either be a review of the disciplinary sanction or a re-hearing depending on the grounds of the appeal.

An appeal must never be used as an opportunity to punish the employee for appealing the original decision, and it should not result in any increase in penalty as this may deter individuals from appealing.”

Miss McMillan’s pleaded case is simple and straightforward, namely that there is no contractual power under her contract of employment or the relevant provisions of the Trust’s Procedures or Disciplinary Code which confer any power to increase sanction on an appeal by the employee. That is plainly correct in the sense that there is no express provision conferring any such power either in Part III of the Procedures (which contains no provisions whatever dealing with appeals) or, more pertinently, at paragraphs 4.23 to 4.26 of the Disciplinary Code (which explicitly deals with appeals, albeit in very summary form).

It is difficult to discern, on the face of the Defence, the precise case sought to be advanced on behalf of the Trust on this particular issue. There is a general denial of the relevant allegations in the Amended Particulars of Claim; but there is no attempt to plead any form of implied term conferring a power to increase sanction. Indeed, the primary case advanced on the face of the pleadings seems to be based upon the exchange of correspondence in February 2012 underpinned by the implied obligation of mutual trust and confidence.

Nonetheless, in submissions, Mr Sutton QC sought to argue that one could detect an express power to increase sanction on the face of the wording of the Procedures, essentially by a process of “reading across” from Part IV of the Procedures into Part III and into the Disciplinary Code. He found the relevant power in the wording of paragraph 31 of Part IV of the Procedures which, it will be recalled, stated that the appeal panel had the power “to confirm or vary the decision made at the capability hearing, or order that the case is reheard.” He contended that the use of the word “vary” in this context must include both an upward and a downward variation. If, on this interpretation, the appeal panel in a capability hearing had the power to increase sanction, the same, he contended, must apply to an appeal in a conduct case.

For my part, however, I cannot accept the premise on which this argument is founded. The sole rights of appeal conferred by both Part IV of the Procedures and the Disciplinary Code are those afforded to the employee. There is no right on the part of the Trust to appeal against the original decision, whether as a matter of substance or on the question of penalty. Furthermore, the whole thrust of the detailed procedures for appeals in capability cases is that the appeal should be limited to a review of the original decision, as is clear from the provisions of paragraphs 29 and 31 to which I have previously referred. Those paragraphs make it quite plain that the appeal panel should not rehear the case against the employee but confine itself to a consideration whether the disciplinary panel, in arriving at their decision, acted fairly and reasonably. But if the appeal cannot itself re-hear the case but must remit it for a re-hearing, if it considers that such a course is necessary, it must surely follow that it cannot reconsider the question of penalty.

For my part, I consider that clear and express words would be required in order to confer a power on the part of the appeal panel, even in capability cases, to increase the sanction originally imposed upon the employee. Such a power would be entirely inconsistent with the authoritative guidance given by ACAS and would have the effect of imposing a sanction against which there could be no further appeal.

Furthermore, as I have previously observed, there is no right to cross-appeal on the part of the Trust. To hold that the word “vary” in Part IV conferred a power to increase sanction would, in effect, by a side-wind, confer a right of appeal against sanction on the Trust, at least if the employee was not entitled to withdraw an appeal, as is contended for on behalf of the Trust.

In the circumstances, I am satisfied that the only power of the appeal panel on an appeal in a capability case under Part IV of the Procedures is to vary the original sanction downwards and not upwards. I appreciate, of course, that such a panel has the power, in appropriate circumstances, to direct a rehearing; and the question may arise as to whether, upon such a rehearing, a reconstituted disciplinary panel could come to the conclusion that a more severe sanction should be imposed than had been the case at the original hearing. I rather doubt that if that would be consistent with the overall structure of the appeal processes set out in Part IV; and it would seem to be clearly at variance with the authoritative guidance provided by ACAS. On the other hand, there would presumably still be the possibility of a further appeal by the employee against any such increased sanction. But the point does not seem to be material in the present case.

I conclude, therefore, that even if one were to confine one’s attention to the capability procedures set out in Part IV, there would be no power on the part of the appeal panel to increase the sanction initially imposed upon the employee. But, in any event, I can see no justification, at least in this particular case, of “reading across” from Part IV to Part III or the Disciplinary Code. I appreciate that the provisions governing appeals in conduct cases are somewhat less detailed than in the case of Part IV appeals. But, as it seems to me, very different considerations apply to capability appeals from those arising in relation to conduct. As I have already noted, the underlying concern in capability cases must be the protection of the public from incompetence and the like, whereas allegations of misconduct may well not give rise to any such concerns.

Furthermore, Part IV procedures deal with questions of capability on the part of medical and dental staff; whereas the Disciplinary Code applies to all employees of the Trust, whether medically qualified or not. So, even if, contrary to the view which I have expressed, there is a power to vary sanction upwards on an appeal in a capability case, that might be justified by the need to protect the public against negligence, incompetence or malpractice on the part of medical and dental practitioners. But it does not seem to me that the same would hold true of the generality of the employees of the Trust. In my judgment, therefore, there can be no justification for supplementing the provisions of the Disciplinary Code in conduct cases by reference to those set out in Part IV of the Procedures relating to capability issues. They are different codes directed to different circumstances in which different considerations might well apply.

Even if it were otherwise appropriate to read across from Part IV as contended for by Mr Sutton, it seems to me that there other powerful factors which would strongly militate against doing so. As I have already pointed out, it would clearly be contrary to the authoritative guidance given by ACAS; it might well result in the imposition of an increased sanction against which there could be no further appeal; and it would, in effect, confer a right of appeal on the Trust which is not recognised in the code itself.

In the circumstances, I have come to the clear conclusion that the absence of any express power to increase sanction on an appeal in a conduct case cannot be remedied (as the Trust would no doubt put it) by recourse to the separate procedures governing appeals in capability matters. Nor can I see any possible justification, if the Trust’s case had been formulated in this way, for holding that there must be some implied term conferring such a power under the Disciplinary Code. It follows that, in my judgment, there is no express or implied power under the Code or the Trust’s Procedures for the appeal panel to increase the sanction imposed upon Miss McMillan.

As will be recalled, after her unsuccessful attempt to have the appeal panel recuse itself at the resumed hearing, Miss McMillan, through her advisers, informed the panel that she was withdrawing her appeal and intended to take no further part in the appeal process. It is her case that the contractual right of appeal is conferred upon her alone for her sole benefit and that there is no contractual bar to prevent her from withdrawing it at any stage. That proposition is, however, challenged on behalf of the Trust.

The relevant provisions of the Disciplinary Code are silent on the question of withdrawal. Strictly, therefore, as it seems to me, the countervailing propositions put forward by the parties must primarily fall to be determined by reference to any ancillary conditions or obligations which are properly to be implied into Miss McMillan’s contract of employment. From Miss McMillan’s standpoint, the proposed term can be formulated in a fairly clear and straightforward manner. It is submitted that it was her appeal and that she was entitled to withdraw it at any time. The Trust’s position is, I think, a little more complex. Various stages of the appeal process were identified during the course of the evidence and submissions beyond which, it was contended, no withdrawal of the appeal would be possible. Was she locked into an appeal once she had served the necessary notice? If not, was she entitled to withdraw it at any time before the hearing of the appeal? Or did any implied prohibition on withdrawal apply only once the panel had announced its decision on the substantive merits of the case?

But, quite apart from any implied restrictions upon the withdrawal of an appeal, it was submitted on behalf of the Trust that support could be gained from the express wording of the Trust’s Procedures, particularly those set out in Part IV relating to capability issues. Furthermore, reliance was placed upon the general implied obligation of mutual trust and confidence which, it was suggested, meant that Miss McMillan was obliged to co-operate with the management of the Trust in bringing her appeal, once launched, to a final conclusion.

I start by observing that the point can only be material if, contrary to the clear view which I have formed, there is a power on the part of the appeal panel to increase sanction on an employee’s appeal. If the most adverse outcome of an appeal from the standpoint of the employee is that the original decision as to sanction should stand, it is difficult to see any possible reason why the employee should not be entitled to withdraw the appeal at any stage so as, in effect, to bring about that outcome at an earlier point in time, without taking the appeal to its final procedural conclusion. As it seems to me, therefore, I must approach this issue on the assumption, contrary to my previous findings, that, at the conclusion of an appeal in a conduct case the appeal panel could decide to increase the sanction originally imposed upon the appellant.

The only right of appeal under the Disciplinary Code or, for that matter, under Part IV of the Procedures, is one which is conferred upon the employee. Unless and until such an appeal is launched and concluded, the original determination of the disciplinary panel will remain in force. Even if the management were of the opinion that an employee such as Miss McMillan had got off too lightly as a result of the original decision, it would have no power to appeal against that decision.

Assuming, as I do, for present purposes, that, if an appeal were launched and carried to a conclusion, the appeal panel could increase sanction, I find it difficult to see any obvious justification for the contention that an employee in Miss McMillan’s position, would be locked into an appeal once she had given formal notice of her intention to pursue such an appeal. Up until that point, the employee is clearly the master of his or her own fate: it is entirely a matter for him or her to decide whether to pursue an appeal. The right to do so is conferred entirely for the employee’s benefit. No doubt, once a formal appeal is launched, the Trust would be put to some inconvenience and expense in dealing with it, though that would be fairly limited, at least at the early stages. But if the employee has entire control over whether to launch an appeal by serving formal notice, what reason can there be for any restriction on his or her power to withdraw it at a later stage? The sole purpose of any appeal by the employee is to challenge the original decision of the disciplinary panel. If no appeal is lodged, the original decision will stand; and precisely the same will apply if the appeal, once launched, is subsequently withdrawn.

If one were to seek an analogy from civil or criminal proceedings in the ordinary courts, I am not aware of any provisions which would prevent an appellant from adopting such a course, though, in civil proceedings, the other side would be entitled to pursue a cross-appeal. Certainly, I recall from my early days at the Bar that it was by no means uncommon, in the case of an unmeritorious appeal to the Crown Court from a decision of the Magistrates, for the Judge to remind counsel for the appellant that the court had power to increase sentence as well as reduce it. Such an indication almost invariably led to the withdrawal of the appeal.

Furthermore, as I have previously indicated, there appears to me to be some difficulty in formulating the precise limitations which might be said to apply to any power to withdraw an appeal. Given the strict time limits for giving notice of appeal under paragraph 4.23 of the Disciplinary Code, an employee might very well wish to preserve his rights by serving such a notice so as to give himself further time to consider whether he really wished to pursue an appeal. From an objective standpoint, could it really be the presumed intention of the parties to a contract incorporating the provisions of this Code that the employee could not thereafter decide not to pursue his appeal? I think not. That would be to convert the procedure into a game of forfeits if not double or quits. It would certainly be contrary to the spirit of the guidance from ACAS to which I have already referred.

If an employee is entitled to withdraw his appeal despite having served a formal notice of his intention to appeal, at what stage, if any, might it be contended that such a right is lost? One possibility would be once the hearing before the appeal panel had been commenced; and another would be after the panel had reached a determination upon the substantive merits of the appeal but before it went on to consider sanction. Mr Sutton went so far as to describe an attempt to withdraw an appeal after a determination of the substantive merits as “opportunistic”.

But, once again, I see no obvious reason why, from an objective standpoint, it must be regarded as the presumed intention of the parties that no appeal could be withdrawn at this stage. In the normal course of events, of course, one might have expected the appeal panel to address both the substantive merits of the appeal and the question of sanction at the same time and deal with both in a single decision. In the present case, a different procedure was adopted; but that procedural contingency can hardly be expected to affect the substantive rights of the parties.

So, for my part, I can see no justification in law for drawing a distinction between the various procedural stages of an appeal for the purposes of determining whether an appellant has a right to withdraw his or her appeal. If an appellant can withdraw her appeal despite having served formal notice of an intention to pursue such an appeal, it seems to me that such a right would subsist throughout the appeal process until after it had been finally concluded.

One other possible view might be that a term is to be implied to the effect that an appeal cannot be withdrawn, once formal notice had been given, without the permission of the appeal panel. Such a power on the part of the panel would no doubt have to be exercised in good faith and rationally. I can see that an implied term of this kind might be regarded as giving due weight to the interests of both the employee and the employer.

Obviously, such a provision could have been the subject of express agreement, if those negotiating the relevant procedures had turned their mind to it. But I am far from satisfied that such a term would spell out in express words what the code would reasonably be understood to mean, when read against the relevant background. I take that formulation from paragraph 21 of the opinion of the Privy Council in Attorney General of Belize v Belize Telecom Limited [2009] 1 WLR 1988. To imply such term would, in my judgment, fail to give sufficient weight to the fact that the right of appeal is conferred solely upon the employee and is solely for his or her benefit, with no corresponding right of appeal on the part of management.

But Mr Sutton put forward a number of further arguments in support of the proposition that Miss McMillan was not entitled to withdraw her appeal. In the first instance, he relied upon paragraph 47 of Part IV of the Trust’s Procedures which, he submits, applies both to allegations of misconduct, under Part III, and capability issues, under Part IV. It will be recalled that paragraph 47 is the first of a number of paragraphs set out under the general heading “Termination of Employment with Performance Issue Unresolved”. For convenience, I will set out its wording once again:

“Where the employee leaves employment before disciplinary procedures have been completed, the investigation must be taken to a final conclusion in all cases and capability proceedings must be completed wherever possible, whatever the personal circumstances of the employee concerned.”

The obvious point should be made at the outset that this provision can have no direct bearing on the present case for the simple reason that Miss McMillan has not left her employment with the Trust. So the thrust of Mr Sutton’s argument must be that paragraph 47 addresses a specific instance of circumstances in which disciplinary procedures must be taken to a conclusion despite the non-cooperation of the employee and that it must be illustrative of a broader principle that, by necessary implication, an employee cannot attempt to frustrate the disciplinary process in other ways, such as by seeking to withdraw an appeal.

For my part, I see formidable difficulties in that submission. For a start, it seems to me that this particular provision and those which follow are clearly directed to capability proceedings under Part IV of the Procedures. Mr Sutton submitted that it was of general application and that it would, therefore, apply to disciplinary proceedings governed by Part III and the Disciplinary Code. In those circumstances, he submitted that it was unnecessary to seek to “read across” in order to make it apply in misconduct proceedings. He emphasised that the expression “disciplinary procedures”, which was used in this paragraph, was general in its terms and was not, he contended, limited to capability hearings. Accordingly, whatever the nature of the disciplinary proceedings, paragraph 47 required them to be taken to a conclusion, at least in the circumstances identified in this particular paragraph, namely where the employee had left his employment before those procedures had been completed.

But I cannot accept this argument. Paragraph 47 is clearly anchored within Part IV of the Procedures which is directed specifically to capability issues, as appears from the general heading: “Procedures for Dealing with Issues of Capability”. Though there may obviously, on occasions, be some degree of overlap between allegations of misconduct and issues of capability, the latter are far more likely to give rise to concerns about patient safety. That in itself, as it seems to me, would provide a sufficient explanation as to why provisions of the kind set out at paragraphs 47 to 51 appear in Part IV but not in Part III of the Procedures. If there are concerns about the competence or clinical conduct of a medical or dental practitioner, it must obviously be in the public interest, I would have thought, that those concerns should be properly investigated and assessed by a panel convened in accordance with Part IV.

So I have no difficulty in discerning the policy underlying at paragraph 47 in cases where capability is in issue. A practitioner should not be entitled to frustrate the process of investigation and assessment by taking the simple step of leaving his current employment before those processes are concluded. Whilst there may be some instances in which allegations about the conduct of a practitioner may give rise to concerns about future patient safety and well-being, that would not be a normal consequence of allegations of misconduct.

It is important, as it seems to me, to emphasise once again that the Trust’s Disciplinary Code applies to all employees, with some relatively minor exceptions, and not just to medical and dental practitioners. Whilst I accept that paragraph 47 refers to circumstances where “the employee” leaves his employment, I find it difficult to see any obvious justification for detaching this particular provision from its obvious place in Part IV which deals with capability issues and treat is as applicable to all types of misconduct proceedings against all categories of employees.

Furthermore, there are, in my judgment, strong indications in the language of paragraph 47 and its immediate context to show that it was indeed specifically directed to cases involving capability issues. Thus, paragraph 47 itself provides that, in the prescribed circumstances, the “investigation” must be taken to a final conclusion and that “capability proceedings” must be completed wherever possible. If a concern arises about the conduct or capability of a practitioner, the initial action to be taken by the Trust is set out in Part I of the Procedures. Though it appears largely to be directed to capability issues, I am prepared to accept that Part I also applies where the concerns relate to the conduct of a practitioner. So the requirement of paragraph 47 that the investigation must be taken to a final conclusion may extend to any case where an investigation has been directed. But the same cannot hold true of the further requirement at paragraph 47 that the “capability proceedings” must be completed wherever possible. It is only in capability cases that this requirement could be fulfilled. I find it difficult to see, in those circumstances, how it can possibly be said that this must nonetheless be interpreted as applying equally to conduct cases.

The language of paragraph 48 points in precisely the same direction. It makes ancillary provisions for the cases governed by paragraph 47. It directs that every reasonable effort should be made to ensure that the employee remains involved in the process. Whether or not this can be achieved, it goes on to provide as follows:

“The Trust must make a judgment, based on the evidence available, as to whether the allegations about the practitioner’s capability are upheld.”

The wording adopted is quite clear and specific and demonstrates that the provisions of paragraph 47 are directed to capability questions.

The provisions of paragraph 49 give the same clear impression. These are directed to circumstances in which an excluded employee or one facing capability proceedings becomes ill. It provides that Trust’s sickness absence procedures take precedence over the “capability procedures”. Exclusion from work is governed by Part II of the Trust’s Procedures. Once again, I am prepared to accept that this may apply in conduct cases as well as those where capability is in issue. But paragraph 49 is clearly directed to the impact of illness on the Trust’s “capability procedures” and the consequences it may have for the process.

The wording adopted in these three paragraphs does not seem to me to give any support for Mr Sutton’s submission that paragraph 47 is apt to provide that, at least in some circumstances, disciplinary proceedings based on allegations of misconduct, rather than capability, must be taken to a final conclusion.

So, I consider that paragraph 47 applies only in cases where capability is in issue. In those circumstances, I can see no obvious justification for “reading across” these very specific provisions, based, no doubt, on policy considerations, into the more general code governing allegations of misconduct not merely against medical and dental practitioners but virtually all other employees of the Trust. That was not Mr Sutton’s primary argument founded upon paragraph 47; but, in so far it remained in issue, I decline to accept it.

There is a further problem in seeking to apply some sort of procedure of the kind envisaged by paragraph 47 to the circumstances of the present case. As Miss O’Rourke pointed out, it does not have any obvious bearing in a case where the disciplinary proceedings had already been brought to a conclusion and a subsequent appeal had been launched and, in this case, actually or purportedly withdrawn. If it was open to Miss McMillan to withdraw her appeal, the original findings of the disciplinary panel and the sanction that it imposed would remain in place.

The obvious purpose of paragraph 47 and any generalised version of the kind espoused by Mr Sutton in the course of his submissions must be to prevent an employee from frustrating an investigation or disciplinary proceedings by, for example, leaving his employment. But in the present case, the investigation and the disciplinary proceedings have already been concluded. The outcome of those proceedings will be unaffected by any withdrawal by Miss McMillan of her appeal. So, even if paragraph 47 or some generalised version of its provisions were applicable in the present case, I do not see that it would have any bearing on the question whether Miss McMillan was entitled to withdraw her appeal.

The second specific provision relied upon by Mr Sutton was to be found at paragraph 4.24 of the Disciplinary Code itself. This is one of four paragraphs grouped together under the general heading “Appeals”. It will be recalled that paragraph 4.23 provides that an employee can appeal against a written warning or dismissal. Though the time could be extended in exceptional circumstances, any appeal must be made in writing within 10 working days of receiving notification of the outcome of the disciplinary hearing. Paragraph 4.24 reads as follows:

“A sub-committee of the Foundation Trust Board will hear the Appeal (one Executive Director and one non-Executive Director). They will be supported by a member of the HR Team.”

Mr Sutton submitted that this provision was mandatory in the sense that it imposed a duty upon the sub-committee in question to hear and determine the appeal. That, he suggested, meant that it must do so once written notification of an intention to appeal had been lodged within the requisite time limit. Once the engine was set in motion it must move inexorably along the rails to its ultimate terminus.

Once again, however, I cannot accept this submission. In my judgment, the provision in question is plainly directed to the constitution of the appeal panel and not to the way in which it is required to discharge its functions. Still less is it apt to circumscribe the nature of the right conferred upon the employee to appeal against the findings of a disciplinary panel. It also seems to me that there would be some practical problems in applying this provision if it were to be interpreted in the way contended for by Mr Sutton. What, for example, would the position be if an employee in Miss McMillan’s position decided to withdraw an appeal before a sub-committee had been appointed in accordance with the provisions of paragraph 4.24? Be that as it may, I conclude that this particular provision cannot be interpreted in such a way as to fetter any right on the part of an employee to withdraw an appeal.

But Mr Sutton advances a further argument. He points out that under clause 3 of her contract of employment, Miss McMillan and the Trust had mutual obligations of cooperation and the maintenance of goodwill. This, he submitted ran in parallel with the usual implied duty on both sides of an employment relationship to act in such a way as to maintain mutual trust and confidence. He argued that these obligations would apply in the context of disciplinary proceedings so as to regulate the manner in which the parties were expected to conduct themselves for the purposes of the disciplinary procedures in question. He then drew from this the proposition that, once an appeal was launched, the parties were obliged to cooperate so as to bring the appellate proceedings to a final conclusion. Any unilateral attempt to withdraw an appeal would, therefore, in his submission, run counter to Miss McMillan’s express and implied contractual obligations. It followed, he contended, that she would not be entitled to withdraw her appeal save, no doubt, with the agreement of the appeal tribunal.

In some ways, this is an attractive argument. The obligations in question do, no doubt, inform the manner in which the parties to a contract of employment are required to behave towards one another across a wide range of activities. But I have some difficulty in seeing how they would apply in the context of disciplinary proceedings. I can accept without too much difficulty that an employee could properly be expected to cooperate with his employer in elucidating any concerns which may have arisen as to his conduct or capability and in any consequent investigation. Any refusal to do so might very well be a breach of the sort of express obligations set out in clause 3 of Miss McMillan’s contract of employment and of the implied duty to maintain mutual trust and confidence. Indeed, such a refusal or failure could, I suppose, itself become the subject of disciplinary proceedings. But there is no suggestion in this particular case of want of cooperation on Miss McMillan’s part in the course of the investigations leading up to the disciplinary proceedings.

But how would general obligations of this kind crystallize once a decision has been made by the Trust to pursue formal disciplinary proceedings against an employee such as Miss McMillan? It is a matter for the Trust alone to decide whether to institute and pursue proceedings of that kind. Indeed, so far as I am aware, there would be nothing to prevent the Trust from abandoning proceedings if it considered appropriate to do so; and I can see no reason why it would have to consult or seek the agreement of the employee before adopting such a course. In most cases, of course, I imagine that the employee’s agreement would be readily forthcoming.

Likewise, I can see no basis upon which it can reasonably be said that the employee is under some form of duty to cooperate in the disciplinary proceedings. In practical terms, I am not at all sure what is envisaged. Is the employee under a duty to appear before the panel to give evidence and submit to cross-examination? At least in conduct cases, I am very far from persuaded that general duties of the kind relied upon by Mr Sutton would take concrete form in this way. I would have thought that it was entirely open to the employee to leave matters in the hands of the employer and the disciplinary panel and take such part as he or she wished, or choose to take no part whatever, in the proceedings.

In capability cases, of course, as has already been seen, there are specific provisions governing the position which would come to pass if the employee elected to leave his employment before the conclusion of the proceedings or suffered from ill health. Whilst paragraph 48 of Part IV of the Trust’s Procedures states that every reasonable effort must be made to ensure that the employee remains involved in the process, it is quite clear that the process can be carried forward to a conclusion even without any such involvement.

Accordingly, I take the view that the general duties relied upon by Mr Sutton do not have any obvious procedural consequences for the conduct of disciplinary proceedings of the kind brought against Miss McMillan. In my judgment, the same analysis would apply with even greater force to a subsequent appeal. The only ways in which it was positively suggested that these general obligations might manifest themselves in specific form in this context was, firstly, to support the contention that the appellant was under a duty to seek to agree the procedures to be adopted and, secondly, in order to justify the proposition that, once an appeal was launched, it could not be withdrawn, at least without the agreement of the appeal panel, once appointed. It was submitted that, at least where there was to be a full rehearing, the appeal panel should be free to reach its own conclusions on the facts, on the merits and on the appropriate level of sanction, in the light of the evidence adduced before it and the arguments advanced on behalf of the parties, and that the employee could not act so as to frustrate this process. It was not suggested, however, that an employee was obliged to take an active part in the appeal process, save, it would seem, to cooperate in seeking to search agreement on procedural matters. But why should the employee be under some form of obligation to agree procedures for the conduct of the appeal if the appeal itself could proceed without any active participation by the appellant? I can see no obvious justification for holding that the general duties identified by Mr Sutton would have that effect.

So, the only way in which those general duties might be said to manifest themselves is by preventing an employee in Miss McMillan’s position from withdrawing her appeal. That seems to me to be a somewhat curious outcome and one which is quite incompatible with the fact that the right of appeal is conferred upon the employee for his or her benefit and that the management of the Trust has no analogous right, no matter how dissatisfied it might be with the outcome of the original disciplinary proceedings. Furthermore, the justification prayed in aid by Mr Sutton could arise only where there was to be a complete rehearing, since it was only in such a case that the appeal panel would be in a position to reach factual conclusions of a more serious kind than those reached at first instance, or to impose a more substantial penalty, assuming, as I do for present purposes, that it would have the power to do so.

Whatever the circumstances in which an appeal could properly proceed by way of a complete rehearing, it seems to me that this would not be the normal way in which it could be expected to be heard and determined. So the argument that the over-arching duties relied upon by Mr Sutton could be invoked so as to prevent Miss McMillan from withdrawing her appeal on the grounds that it might frustrate a process under which the appeal panel might make adverse findings of a more serious nature against her and impose a more severe penalty could not hold true for all or, I would have thought, the large majority of appeals. It cannot, in my judgment, therefore, justify the proposition that to allow an appeal to be withdrawn would contravene the express and implied contractual obligations relied upon Mr Sutton.

As I have previously observed, the right of appeal is conferred upon the employee solely for his or her benefit, with no corresponding right of appeal on the part of the management, no matter how dissatisfied the Trust may be with the outcome of the original disciplinary proceedings. On the face of it, in my judgment, Miss McMillan would be entitled to pursue her appeal, or withdraw it, as she saw fit. I see nothing in either of the specific provisions relied upon by Mr Sutton which would justify the implication of a term limiting or restricting her rights so as to prevent her from withdrawing an appeal, once launched. Nor can I accept that any over-arching duty of co-operation or any obligation to maintain mutual trust and confidence between employer and employee can indirectly have the same effect.

The particular scenario invoked by Mr Sutton could only come to pass where the appeal was to be conducted by way of rehearing and on the assumption that there was power to increase the penalty. I fail to see how a contingency of that kind could constitute a sufficient foundation for finding that there was no right to withdraw any appeal under any circumstances, whatever form the appeal process might take. I cannot accept that the parties to a contract incorporating the relevant disciplinary procedures could be regarded as having intended such a limitation, still less some far more complicated restriction which would apply only where there was to be a rehearing and a possible increase in sanction.

I conclude, therefore, that Miss McMillan was entitled to withdraw her appeal at any stage, even after the substantive issues had been determined against her by the appeal panel; and she clearly took steps to do so before the panel went on to consider the question of sanction. Accordingly, even if, contrary to my previous findings, the panel was entitled, in principle, to increase the penalty imposed on Miss McMillan at the conclusion of the earlier disciplinary proceedings, it no longer has any such power in the light of the withdrawal of her appeal.

If, as I have found, there was no power on the part of the appeal panel to increase the sanction originally imposed upon Miss McMillan, it was the Trust’s case that some sort of ad hoc power of that kind was brought into being as a result of an agreement between the parties embodied in the exchange of letters between the Trust and Miss McMillan’s solicitors in February 2012. So it will be necessary to examine the wording of these documents in a little more detail than in the introductory section of this judgment.

Written notification of Miss McMillan’s intention to appeal against the decision of the original disciplinary panel was given to Miss Fletcher, the Chief Executive of the Trust, by way of a letter from Miss McMillan’s solicitors dated 30^th November 2011. That letter set out what were described as the principal grounds of appeal under seven headings, though a lengthy and detailed further statement of her grounds of appeal were subsequently served on or about 20^th February 2012.

The first of the seven grounds set out in the letter of 30^th November 2011 was to the effect that the factual findings were inconsistent with the evidence which the panel had heard; and the second criticised the reasoning of the panel in reaching its conclusions. The third ground alleged that the original investigation was unfair in various respects; and the fourth asserted that Miss McMillan’s case was seriously prejudiced by the Trust’s failure to produce a number of witnesses at the hearing. The fifth ground set out in the letter was based upon the Trust’s decision to press on with the hearing on 9^th November 2011, despite a request by Miss McMillan’s legal representatives for an adjournment; and ground six criticised the manner of presentation and content of the management’s case at the hearing. Finally, ground seven was to the effect that the imposition of a final written warning was “unreasonable, irrational, and wrong in all the circumstances”.

Miss Steele’s letter to Miss McMillan dated 16^th February 2012 was her substantive response to the letter from Miss McMillan’s solicitors dated 30^th November 2011. It starts by referring to an earlier letter of 1^st February 2012 and then goes on to deal with the appeal hearing scheduled to take place on 1^st March 2012.

The letter then states that the hearing was being convened to consider Miss McMillan’s appeal against the final written warning issued on 9^th November 2011 and sets out the allegations against her which were upheld by the original disciplinary panel. Miss Steele then addressed the various grounds set out in Miss McMillan’s solicitor’s letter dated 30^th November 2011 in these terms:

“In the letter from Ryan solicitors to Bridget Fletcher, dated 30 November 2011, they outline seven grounds for your appeal, which you wish to be addressed. It is our intention to address points 1, 2, 3, 5, 6 and 7 by way of a re-hearing. We propose to address point 4 by inviting the following witnesses to attend….”

The names of 11witnesses were then set out, together with a statement that there would also be an opportunity to cross-examine the medical director, Dr Andrew Catto.

The next paragraph deals with the question of sanction. What it says is this:

“In order that all relevant evidence is considered proportionately and fairly, it is proposed that the appeal panel will consider the evidence and be able to determine their own outcome, in terms of the sanction applied. This will give the panel the full range of options available as in the case of a disciplinary hearing i.e.:

•

uphold the original decision

•

reduce the penalty

•

increase the penalty

•

clear you of the misconduct and remove the allegations from your record.

It is deemed an appropriate response in light of the number and breadth of the issues raised within the appeal letter, and also in light of requests you have made for disclosure of documentation, in your letters dated 12 January and 3 February 2012 (to be addressed under separate cover).

To assist the appeal process, and to ensure all relevant matters are considered, I would be grateful if you could clarify specifically which aspects of the Trust investigation you believe were not compliant with the Trust’s ‘Procedures for Handling Concerns Regarding Medical and Dental Staff Conduct and Capability’. It would also be helpful if you could clarify the substantive issues in more detail, so that they can be individually considered.”

Further information about the conduct of the hearing was set out in the following paragraphs. It was stated that the appeal panel intended to pre-read all the disciplinary and investigatory statements, in order to “progress the key issues on the day” and enable the panel to utilise the time available more effectively. The letter concluded with the following two paragraphs:

“Statements from other witnesses which were included in the disciplinary hearing will be taken as uncontested, unless you inform us differently. If you wish to contest any of those statements, kindly respond with the direct relevance they may have to the two allegations, so that we can consider whether to include them.

If you have any issues with what the Appeal panel proposes to do, in terms of procedure, witnesses or process, kindly respond with your concerns and any further requests for consideration.”

This letter was, of course, copied to Ryan, Miss McMillan’s solicitors, who responded on 17^th February 2012. The writer was Mr Rowley, who represented Miss McMillan at the subsequent appeal hearing. After referring to Miss Steele’s letter of 16^th February 2012, he made the following observations:

“We are grateful for the information you set out in your letter, and set out below the position from the perspective of Miss McMillan at this stage, with a view to assisting in arrangements for the Appeal, including any outstanding matters, which we address under separate headings.”

He then noted that Miss Steele had confirmed that the eleven witnesses named in her letter would be called in support of the management’s case at the appeal which, he also noted, was “to be considered by way of re-hearing”. But he also asked that a further three witnesses should be “warned to attend”, and enclosed various earlier correspondence on the point, briefly explaining why their evidence might be relevant to the allegations against Miss McMillan. He also noted that there would be an opportunity to put questions to Dr Catto; and asked whether he would be presenting the case on behalf of the Trust as at the original disciplinary hearing.

Mr Rowley then referred to the evidence of one of the Trust’s witnesses, Dawn Wright, commenting upon the difficulties which had arisen in relation to her evidence at the original hearing and criticising the way in which the panel had dealt with her evidence. After identifying the three witnesses who were to be called at the hearing on behalf of Miss McMillan, Mr Rowley’s letter raised various questions about disclosure. This was followed by his response to the request for further clarification of the issues in the appeal, referring to the detailed particulars of the grounds of appeal which would be served shortly and would be accompanied by a supporting bundle. He rather optimistically observed that it was anticipated that these detailed grounds would considerably shorten the length of any oral submissions, as long as the panel was familiar with their contents.

Mr Rowley’s letter then identified two witnesses whose statements were incorporated in the investigation report and its appendices but whose evidence was not agreed. All other individuals who had provided information for the purposes of the investigation report or statements for the RCA would, he understood, be attending to provide oral evidence at the appeal. As for Dr Bhandare, he stated that his evidence, as set out in the appendices to the investigation report, were highly controversial and must be omitted. In relation to Professor Kay, the other witness to whose evidence objection was taken, it was said that this constituted inadmissible opinion evidence and was, in any event, not relevant to the issues.

In the following section of his letter, Mr Rowley dealt with various matters under the general heading “Hearing Duration”. He started with the following observation:

“We respectfully agree with the approach you have adopted to the Appeal, which is essentially that matters be dealt with by way of re-hearing.”

He then went on to point out that this might give rise to one particular difficulty, namely the possibility that a one day listing might not be sufficient. He suggested that, if the hearing had to continue to a late hour, this might prejudice both parties. Accordingly, he suggested that an additional day would assist in alleviating this potential difficulty and asked for consideration to be given to this proposal.

Finally, he raised a question as to whether a qualified shorthand writer should be asked to attend in order to ensure that accurate minutes were kept of the hearing.

This was followed by a letter dated 24^th February 2012 signed on behalf of Miss Steele in which she confirmed the arrangements for the appeal hearing. She also confirmed that eight of the eleven named witnesses would be attending in support of the management case; but she pointed out that two of the other witnesses had left the Trust and would not be available and that the other witness had not yet contacted the Trust. As to Mr Rowley’s request for certain additional witnesses to be “warned” to attend, she informed him that arrangements had been made for a representative of Ryan to contact two of them. However, Dr Bhandare was not employed by the Trust and was acting as a locum at the time of the incident. In the circumstances, the Trust had no authority to warn him to attend the hearing, though she asked whether Mr Rowley would like details of the agency who had supplied his services.

The next paragraph of her letter was in these terms:

“I can confirm that Dr Catto will not be presenting the case on behalf of the Trust at the Appeal, since the panel will have pre-read all the relevant material, including the “Detailed Grounds of Appeal” document, which I received on 21 February 2012, and the supporting Bundle, which I received by post on Wednesday 22 February 2012.”

Miss Steele’s letter then referred to Dawn Wright and thanked Mr Rowley for his suggestion that she might be accompanied by a friend or colleague and went on to confirm that the evidence of Dr Bhandare and Professor Kay would be omitted from the bundle. She also dealt briefly with issues of disclosure. Whilst she accepted that the appeal hearing might require additional time, it was the panel’s intention to proceed during normal working hours. If further time was required, the panel would make a decision at that point and set a further date. Finally, she confirmed that the proceedings would be recorded, so that a complete transcript could be provided at the earliest opportunity. She concluded in these words:

“I trust we have addressed the issues raised in your letter but if you have any further concerns or queries regarding the appeal process, kindly let me know as soon as possible.”

It is by no means clear, on the face of this correspondence, whether the letters from Miss Steele were written in her capacity as Director of Organisational Development and Workforce at the Trust or as a member of the sub-committee which would hear the appeal. However, it was the evidence of both Miss Steele herself and Mr Drake that the panel had already had some preliminary discussions about the conduct of the appeal; and it seems to me that Miss Steele must have been writing on behalf of the panel, notwithstanding that some of the arrangements referred to in the correspondence would inevitably have been the subject of discussions with other employees in the Trust.

It is the Trust’s case that a binding agreement was reached between Miss McMillan and the Trust as a result of the exchange of letters of 16^th and 17^th February 2012. This, it should be said, was a contention that was not raised until after the abortive hearing on 27^th June 2012. So far as I am aware, it first featured in a letter dated 17^th August 2012. At the very least, therefore, it might be said that the proposition that this exchange of correspondence constituted a binding contract between the parties was not something which was immediately apparent to the Trust and its advisers. But that does not, of course, mean that its merits should not be fully considered.

It is as well to see how the Trust’s case is formulated in its Defence. The relevant averments are to be found at paragraphs 16-19:

“16.

Given the number and breadth of the challenges that had been made in the letter of appeal, the Defendant decided to offer the Claimant the facility of a re-hearing. This was communicated in the Defendant’s letter to the Claimant dated 16 February 2012 to which detailed reference will be made at trial. By the said letter, the Defendant set out the form of the proposed appeal, and in particular, that:

(i)

the proposed re-hearing would give rise to a fresh determination of the allegations by the appeal panel;

(ii)

the appeal panel would have the full range of options available in terms of sanction as the original disciplinary hearing panel, one such option being an increase in the penalty.

17.

The Claimant was specifically required, in response to the said letter, to state whether she had any objection to the form of appeal proposed, whether in terms of procedure, witnesses or process.

18.

By its letter in reply dated 17 February 2012, the Claimant’s solicitors expressly stated that the Claimant agreed with the approach that the Defendant had proposed to adopt in relation to the appeal. In particular no objection was raised to the proposal that the full range of sanctions should be available to the appeal panel at the conclusion of the re-hearing.

19.

The Defendant contends that the procedure for the conduct for the appeal, as set out in its letter to the Claimant of 16 February 2012, and as accepted by her, whether expressly, impliedly or by subsequent performance of the same, was of contractual effect and gave rise to binding obligations. Pursuant to such agreement:

(i)

the Defendant was required to afford the Claimant the facility of a disciplinary appeal by way of re-hearing rather than a more limited formal review;

(ii)

if misconduct was found, the Appeal panel would have available to it the full range of disciplinary sanctions;

(iii)

the Claimant and Defendant were each bound, pursuant to the express or implied term of the employment contract, to facilitate the proper performance and completion of the appeal process in accordance with the agreed arrangements.”

What appears, therefore, to be alleged is that there was a binding agreement between the Trust and Miss McMillan, acting through the agency of her solicitors, that there would be a re-hearing of the allegations and that the appeal panel would have the power to increase the penalty imposed upon Miss McMillan. Furthermore, recourse is once again had to the obligation of cooperation and the maintenance of mutual trust and confidence.

I am prepared to accept that some agreements of a procedural nature entered into during the course of legal or disciplinary proceedings might have contractual force. I also accept that, in the absence of any prescriptive provisions in the Disciplinary Code, in contradistinction to appeals in capability cases under Part IV of the Trust’s Procedures, an appeal panel would have the power to deal with an appeal by way of re-hearing. Indeed, it was common ground at trial that the panel would have had the power to proceed in this way if it thought fit. But, in view of my earlier findings, there would be no power to increase sanction on appeal, even where the appeal panel properly exercised its discretion to proceed by way of re-hearing.

Miss McMillan’s formal response to the Trust’s case on this issue is to be found primarily at paragraphs 5, 6, 7, 8 and 9 of her Reply. At paragraph 5 the construction and interpretation of Miss Steele’s letter of 16 February 2012, as pleaded at paragraph 16 of the Defence, is denied. The following paragraphs then read as follows:

“6.

Paragraph 17 of the Defence is denied. At no stage did the Defendant notify the Claimant or her solicitors that the said letter constituted a contractual offer open for acceptance or rejection by the Claimant and which would abrogate or vary existing rights under her contract of employment. Nor was such letter so interpreted at any time by the Claimant or her solicitors.

7.

At all material times the letter of 16 February 2012 was treated by both the Claimant and the Defendant as containing suggestions as to the procedure to be adopted for the adduction of evidence during the Appeal process given the silence of the Disciplinary Code on such matters. At no stage did the Claimant or Defendant consider rights were being ceded by such correspondence.

8.

The interpretation of the Claimant’s solicitors’ letter dated 17 February 2012 as pleaded under paragraph 18 of the Defence is denied. The Claimant’s solicitor never sought nor received any express approval of the Claimant to abrogate her strict contractual rights and never communicated to the Defendant any acceptance of such a contractual abrogation or waiver.

9.

Paragraph 19 of the Defence is denied. It is averred that to have the binding effect asserted by the Defendant there would have to be a clear offer and clear acceptance and express consideration and an intention to create legal relations and vary an existing contract in accordance with strict legal principles. This is denied.”

In my judgment, it is quite impossible to treat this exchange of correspondence as creating a binding contract between the parties. It seems to me that this contention falls at the very first hurdle. The letter of 16 February 2012 sets out the panel’s intentions and proposals as to the procedure to be followed at the appeal hearing. It does not take the form of an offer which Miss McMillan was entitled to accept or reject or address by way of a counter-offer. It is not a step in the course of negotiations but a statement of how the panel intended to proceed. Subject to any relevant provisions of the Disciplinary Code, procedural issues of this kind would be matters for the panel alone, though it would no doubt wish to consider any representations made by or on behalf of Miss McMillan. In fact, of course, that is precisely what Miss Steele’s letter did. As will be recalled, the final paragraph was in these terms:

“If you have any issues with what the Appeal panel proposes to do, in terms of procedure, witnesses or process, kindly respond with your concerns and any further requests for consideration.”

At paragraph 16 of its Defence, it is alleged that, by this letter, the Trust offered Miss McMillan “the facility of a re-hearing”; and at paragraph 17 it is averred that Miss McMillan was specifically required to state whether she had any objection to the form of appeal proposed. But it is wholly artificial, in my judgment, to treat this letter as amounting to an “offer” of “the facility of a rehearing”. On the contrary, it is quite clear from its terms that this was the way in which the panel had decided to proceed. That was confirmed by Mr Drake and Miss Steele in the course of their evidence; and both of them effectively accepted that, given the nature and range of the complaints made by Miss McMillan in relation to the original disciplinary hearing, an appeal by way of rehearing was the appropriate, if not the only, way to proceed.

Furthermore, it is not quite accurate to say, as pleaded at paragraph 17 of the Defence, that Miss McMillan was specifically required to state whether she had any objection to the form of appeal proposed, in the light of the actual wording of the final paragraph of the letter which I have set out above. It simply asked Miss McMillan to respond with her concerns and any further requests if she had any issues with what was proposed. If she had any such concerns or requests, those would be matters which would be considered by the panel.

Let it be supposed that Miss McMillan and her solicitors had simply failed to respond to Miss Steele’s letter. I suppose it might be said that this would have constituted a breach of her duty to cooperate and maintain mutual trust and confidence. If so, for reasons substantially the same as those which I have previously set out, I consider that there would be nothing in the point. But if she had failed to respond, it seems to me to be clear beyond any real doubt that the panel would simply have proceeded in the manner proposed in Miss Steele’s letter. That would not depend in any way on the acceptance of any “offer”.

Of course, her solicitor, Mr Rowley, did, in fact, respond by way of his letter of 17^th February 2012. I have analysed this letter in some detail earlier in this section of my judgment. He made a number of observations and requests which Miss Steele, on behalf of the panel, subsequently responded to. It is undoubtedly true, however, that, at the beginning of the section of his letter dealing with the duration of the hearing, he made the following observation:

“We respectfully agree with the approach you have adopted to the Appeal, which is essentially that matters be dealt with by way of rehearing.”

But that, on its face, does no more than deal with one, albeit important, aspect of the panel’s proposals. He does not specifically address the question of sanction. Indeed, in his evidence, he accepted that he had read and understood the passage in Miss Steele’s letter where she referred to the possibility of an increase in sanction, but felt that this was something which could, if necessary, be addressed on a future occasion. So, even if Miss Steele’s letter of 16^th February 2012 was capable of being regarded as some form of offer, it does not seem to me that Mr Rowley’s response would, in contractual terms, amount to an acceptance. Certainly, a failure to object would not normally be regarded as constituting an acceptance.

What, in effect, is asserted on behalf of the Trust is that Miss Steele’s letter amounted to an offer along the following lines: “We will offer you the facility of a full rehearing, if you agree that we can increase the penalty imposed by the original disciplinary panel.” Mr Rowley’s letter, in turn, is said to have amounted to an acceptance of that offer.

But I regard that as a wholly artificial analysis of this exchange. In substance and in truth, in my judgment, Miss Steele’s letter simply set out the Trust’s views, intentions and proposals and invited Miss McMillan to respond with any concerns or requests. There was no offer to enter into binding contractual obligations and no acceptance. So, in my judgment, the Trust’s case on this issue as doomed to failure.

But there are other difficulties in the way of the case advanced on behalf of the Trust. Consideration arguments rarely succeed. But, in the present case, I find it difficult to see any consideration sufficient to support the supposed promise on the part of Miss McMillan that she would submit to any increase in sanction which the panel might subsequently consider to be appropriate.

In accordance with my rather simplistic formulation of the Trust’s case, I suppose that the consideration on behalf of the Trust may be said to be found in the “facility of a rehearing”. But it seems to me that this is entirely illusory. As I have previously said, the panel appears already to have determined that a rehearing would be appropriate; and, as I have found, that would inevitably have been the procedure adopted, even in the absence of any response from or on behalf of Miss McMillan. So the Trust was promising to do no more than it would have had to have done in any event in the particular circumstances of the present case. In my judgment, that would not be a sufficient consideration for any promise on behalf of Miss McMillan.

Furthermore, I do not consider that this exchange of correspondence can be regarded as evincing any intention by the parties to enter into binding contractual relations. I will not repeat what I have already said. The panel set out what it proposed to do and invited any observations which it duly received and considered.

I also have very considerable difficulty in understanding who, on the Trust’s case, were the parties to this supposed contract. Was it the Trust itself which was making the offer in question; or was it the panel, on whose behalf Miss Steele appears to have been acting at the time? In view of the capacity in which she wrote the letter, the latter would seem to be the correct analysis. But the contract alleged is said to have conferred on the Tribunal a power which, in my judgment, it did not have under the terms of the contract of employment between Miss McMillan and the Trust. It seems to me that Miss O’Rourke QC was correct in her contention that, if it were to have that effect, the contract said to have been embodied in this exchange of correspondence must have been one which was effective to bring about a variation in Miss McMillan’s terms and conditions of engagement. But, though it was strictly a sub-committee of the Trust, what power would the panel have had to bring about such a change?

The point was raised specifically on behalf of Miss McMillan in two ways. Firstly, it was contended that, if the agreement alleged was to be effective to bring about a variation of her contract of employment, that would have had to have been made plain on the face of the letters themselves. For my part, I am not at all sure that this is correct, provided that the new terms were clearly identified and were, in fact, incompatible with the substantive provisions of the contract which is said to have been varied.

But a further point was also taken as to the authority of Mr Rowley to enter into a contract on behalf of Miss McMillan which would have had the effect of bringing about a variation of the substantive terms and conditions upon which she was employed. As a matter of fact, it is clear that he did not consult his client before responding to Miss Steele’s letter of 16^th February 2012. As her solicitor, however, he would no doubt have had implied or apparent authority to enter into contractual commitments in connection with the disciplinary proceedings and consequent appeal for the purposes of which he was retained. But, for my part, I do not think that this would extend to what would have been in substance a variation of the terms and conditions upon which his client was employed. Obviously, however, in the light of my earlier findings on this issue, the point is immaterial, so it is unnecessary for me to express a concluded view.

It will be recalled from my citation from the pleadings that the Trust also contends that this ancillary or collateral contract engaged the express or implied terms of Miss McMillan’s contract of employment by which she was required to cooperate with the Trust and act in such a way as to maintain mutual trust and confidence by facilitating the proper conduct and completion of the appeal process in accordance with the arrangements which were said to have been agreed by the exchange of letters between Miss Steele and Mr Rowley. But I do not think that there is anything further that I need to add on this point, which I have considered, at an earlier stage in this judgment without regard to the agreement which is said to have emerged from the exchange of letters of 16^th and 17^th February 2012. For the reasons which I have already given, I would reject any suggestion that duties of this kind were engaged so as to impose any additional obligations upon Miss McMillan in relation to the arrangements set out in those letters.

It follows, therefore, that I reject the Trust’s case that, whatever the position might otherwise have been under Miss McMillan’s contract of employment, the exchange of letters between Miss Steele and Mr Rowley of 16^th and 17^th February 2012 constituted a binding contract under which she agreed that the appeal panel could increase the penalty previously imposed upon her, if it felt it appropriate to do so.

As I observed in the introductory section of this judgment, the Amended Particulars of Claim, at paragraphs 26, 26A and 28, set out wide ranging allegations of unfairness in the conduct of the appeal and of actual or apparent bias on the part of Mr Drake.

But the allegations set out in these paragraphs were not pursued on the basis that the conduct of the appeal constituted a breach of Miss McMillan’s contractual rights; nor was any claim pursued under Article 6. As presented and pursued at trial, the case was purely responsive. If, which was, of course, denied, there was some form of collateral agreement between Miss McMillan and the Trust arising out of the exchange of letters dated 16^th and 17^th February 2012, it was contended that the manner in which the Appeal was conducted and its outcome amounted to a serious breach of the duties owed to Miss McMillan under any such contract as a result of which she was entitled to treat herself as having been discharged from her own obligations, so that she would no longer have to submit to any increased sanction, even if she would otherwise have been obliged to do so by virtue of the alleged contract. In short, the allegations in paragraphs 26, 26A and 28 of the Amended Particulars of Claim were relied upon purely as a defence to the Trust’s case in so far as that was based upon some form of collateral contract arising out of the exchange of correspondence in February 2012.

At paragraph 26, it is averred that Mr Drake constantly interrupted Miss McMillan’s solicitor in the presentation of his case and wrongly sought to interfere with and restrict the questions asked, the evidence adduced, the witnesses called, the points argued and the grounds advanced. This is followed by a general allegation that he behaved in an unfair manner evidencing “apparent if not actual bias”. All this is said to have constituted a breach of Miss McMillan’s contractual rights and contrary to the rules of natural justice and Article 6 of the European Convention on Human Rights.

Further details of these complaints are set out in Particulars under this paragraph. I will try to summarise these allegations as follows:

At paragraph 26A of the Amended Particulars of Claim, it was specifically alleged that the way in which the appeal was conducted did not amount to a rehearing of the original complaints and was, therefore, contrary to what had been proposed by Miss Steele in her letter of 16^th February 2012. The factual basis of this allegation is set out in a fairly lengthy passage which I will try to summarise as follows:

At paragraph 28 of the Amended Particulars of Claim, there was a further allegation that the findings of the appeal panel, as set out in its decision document, were made in breach of Miss McMillan’s contractual and other rights, as a result of the conduct of the appeal by Mr Drake and that they evinced “apparent if not actual bias” on the part of the author of the decision document. As in the case of the similarly wide-ranging allegations at paragraphs 26 and 26A, I did not understand Miss O’Rourke to pursue any free-standing case based upon any implied terms of Miss McMillan’s contract of employment or her rights under Article 6 of the European Convention on Human Rights. The attack on the panel’s findings and conclusions was, once again, essentially a response to the Trust’s case that there was some form of collateral contract arising out of the exchange of correspondence in February 2012.

I did not have the benefit of any detailed submissions as to the jurisprudential basis of the case formulated in this paragraph of the Amended Particulars of Claim. But it appeared to be accepted by Mr Sutton on behalf of the Trust that actual or apparent bias would vitiate the entire appeal process, no doubt on the footing that it would constitute a serious and fundamental breach of the rules of natural justice which were, no doubt, to be implied in any collateral contract of the kind alleged on behalf of the Trust, if not in Miss McMillan’s contract of employment itself. In the circumstances, I am prepared to proceed on the footing that if the evidence sufficed to show actual or apparent bias, that would be a bar to the continuance of the appeal process by the panel as presently constituted, even assuming that it would otherwise have been entitled to proceed, despite the withdrawal of the appeal, and that it would have had the power to increase sanction.

The particulars of the allegation at paragraph 28 that the findings of the appeal panel evinced actual or apparent bias are set out in six sub-paragraphs. Some of these set out highly detailed and specific allegations of the way in which the panel dealt with the evidence, which can only properly be understood by detailed examination of the evidence, the conduct of the hearing and the findings of the panel. So I propose to deal with them at a later stage of this judgment.

Some further allegations of bias are founded upon the manner in which the panel subsequently responded to the request made on behalf of Miss McMillan that they should recuse themselves and to her decision to withdraw her appeal when they refused to do so. At paragraph 39 of the Amended Particulars of Claim, it is alleged that the Chairman of the panel demonstrated bias by seeking to prevent the withdrawal of the appeal and arguing for its continuance. This is enlarged upon at paragraph 40 by an allegation that this could only have been because the panel was intending to recommend or impose dismissal in place of the original sanction. This is followed by a further allegation at paragraph 41, which avers bias on the basis that the Chairman asked Miss O’Rourke as to how Miss McMillan could continue in her employment if she had lost trust and confidence in the panel, since he himself was a Director of the Trust. Finally, at paragraph 45, reference is made to some notes made by the Chairman of the panel on the question whether Miss McMillan’s dismissal could be justified, despite the withdrawal of her appeal and in her absence. This, it was alleged, demonstrated “actual and at least apparent bias” on the part of Mr Drake.

I do not think it is necessary to refer in any detail to the Trust’s Reply which puts these various allegations in issue. But it should perhaps be noted that, at paragraph 53, various specific propositions are put forward to justify the manner in which the hearing was conducted.

In summary, therefore, the criticisms of the conduct, reasoning and conclusions of the Appeal panel are directed to two issues only, namely whether the procedure adopted amounted to what could fairly be regarded as a “rehearing” and whether there was actual or apparent bias upon the part of the Chairman, Mr Drake. General allegations of “unfairness” are, as it seems to me, material only to the extent that they may provide some evidential support for either of these two fundamental issues raised on behalf of Miss McMillan in response to the Trust’s case, in so far as that is based upon some form of collateral contract.

“Unfairness” as such, does not represent an independent basis for impugning the appeal process. But even if such a case had been advanced, I would not have considered the present litigation to be an appropriate vehicle for determining questions of that kind. Mr Sutton QC drew my attention to some powerful observations in the case law which provided support for that proposition. I have already referred to the decision of the Court of Appeal in Kulkarni v Milton Keynes Hospital NHS Foundation TrustandThe Secretary of State for Health [2009] EWCA Civ 789. It will be recalled that in that case one of the issues was whether the Trust should be restrained from including certain documents in the bundle prepared for use at the disciplinary hearing. As appears from paragraph 18 of the judgment of Smith LJ, the judge rejected that part of the application on the grounds that it was misconceived, since the High Court “was not the proper vehicle for management of internal disciplinary proceedings”. The point was made in forthright terms at paragraph 22 of her judgment, which I have already cited.

But I was also referred to an unapproved note of the judgment of Beatson J (as he then was) dated 25^th October 2012 in the case of Makhdum v Norfolk and Suffolk NHS Foundation Trust. That was a case in which a consultant psychiatrist sought interim relief to restrain the Defendant from pursuing disciplinary proceedings which had been adjourned part heard. It was the Claimant’s case that the process had been pursued in various ways which contravened his contract of employment and which exhibited bias on the part of those carrying out the investigation and the disciplinary panel itself.

According to this unapproved note, at paragraphs 64 to 68 of his judgment, the judge commented on the fact that the court was effectively being invited “to stop the contractually agreed internal disciplinary process so that the substantive question of whether the Claimant has broken his contract in a way which would invite dismissal can be determined in the High Court.” He accepted, however, that, in some circumstances, it might be appropriate for the court to intervene, giving an extreme and no doubt far-fetched example. But he pointed out that the parties had agreed upon the disciplinary process and, as he put it, “part of that includes letting the process take its place”. According to the note, he said this at paragraph 67:

“It can be hard to reach a decision in the circumstances, and what is appropriate depends on the expertise one is dealing with. This case went to a hearing and this was part heard. Now there is an interim application to prevent the second half. The context of employment with internal disciplinary proceedings is therefore one where, on the one hand, serious consequences might happen to the individual, but on the other is hardship to stop the process.”

He concluded this passage in his judgment, at paragraph 68, by stating that “it was against this background that the statements about the jurisdiction of the court in Kulkarni v Milton Keynes Hospital NHS Trust and other cases were made.”

It is also important to note that disciplinary proceedings conducted before a panel established in accordance with the terms of a contract of employment between the parties are not generally to be assimilated to proceedings before a public or domestic tribunal. So it is not usually appropriate for the court to intervene in a dispute between employer and employee in the same way as it might in proceedings before such a tribunal. Furthermore, it is very well established that, in general, the court will not intervene, whether by way of an order for specific performance or an injunction so as to prevent an employee from being dismissed.

There is an instructive passage in the judgment of Elias LJ in the recent case of Christou v London Borough of Haringey [2013] EWCA Civ 178, which illustrates the first of these points and which was the subject of brief written submissions after the conclusion of the trial. One of the issues in that case was whether the doctrine of res judicata applied in disciplinary proceedings. At paragraphs 46 to 51 of his judgment (with which McCombe and Laws LLJ agreed), Elias LJ said this:

“46.

Ms Monaghan submits that there is no difference between contractual domestic disciplinary tribunals of the kind which regulate sporting and professional activities and the disciplinary body established by contractual agreement by the parties to an employment contract. She submits that the principles of finality and fairness to a party are equally apposite here.

47.

I do not accept this submission. In my judgment it is wrong to describe the exercise of disciplinary power by the employer as a form of adjudication. The purpose of the procedure is not “a determination of any issue which establishes the existence of a legal right”, as Lord Bridge put it in Thrasyvoulou, nor is it properly regarded as “determining a dispute”.

48.

In the employment context the disciplinary power is conferred on the employer by reason of the hierarchical nature of the relationship. The purpose of the procedures is not to allow a body independent of the parties to determine a dispute between them. Typically it is to enable the employer to inform himself whether the employee has acted in breach of contract or in some other inappropriate way and if so, to determine how that should affect future relations between them. It is true that sometimes (but by no means always) the procedures will have been contractually agreed, but that does not in my judgment alter their basic function or purpose. The employer has a duty to act fairly and procedures are designed to achieve that objective. The degree of formality of these procedures will vary enormously from employer to employer. But even where they provide a panoply of safeguards of a kind typically found in adjudicative bodies, as is sometimes the case in the public sector in particular, that does not alter their basic function. It is far removed from the process of litigation or adjudication, which is in essence where this doctrine bites.

49.

In my judgment, a case which is analogous to this is Mattu v University Hospitals of Coventry and Warwickshire NHS Trust [2010] EWCA Civ 641; [2012] IRLR 661 in which this court held that disciplinary procedures operated by an employer were not “judicial proceedings” within the meaning of Article 6 of the European Convention on Human Rights because the employer was not by that process determining civil rights. I said this (para. 101):

“The decision to dismiss pursuant to a disciplinary process involves a claim by the employer that he is lawfully exercising contractual right. He is not purporting to act like a judge; he is protecting his own interests under the contract, albeit that this necessarily involves finding facts and interpreting the scope of the contract. He is asserting a right rather than determining it.”

50.

I recognise that Mattu was concerned with what was at least in form a different question. But in substance I think that the Article 6 issue is virtually identical to the question whether the determination of the disciplinary body is res judicata. If the process is judicial and gives rise to a binding adjudication, it involves determining rights in the same way as a court does. Properly analysed it does not seem to me that this is what the employer is doing.

51.

This is not to say that the doctrine of res judicata could never apply between employer and employee. It would, in my judgment, be open to an employer to agree that, say, a bonus payable to employees should be determined by an independent arbitrator and I do not see why in principle the doctrine should not apply to any such determination. But that would not be the natural inference to draw whenever the employer adopts and applies disciplinary proceedings staffed by his own personnel. The critical question is not the formality of procedures, but rather whether they operate independently of the parties such that it is appropriate to describe their function as an adjudication between the parties.”

I would add one or two further observations of my own. Until a final decision is reached at the conclusion of disciplinary proceedings, it is unlikely that procedural errors, even if they amount to breaches of contract, would give rise to any claim for substantial, as opposed to nominal, damages. Clearly if and when a sanction is applied, most obviously in the case of dismissal, it is likely that the employee will suffer loss and damage as a result of the process, which may be substantial. In that event, the employee, if so advised, could take proceedings for wrongful or unfair dismissal, in which the procedural and substantial merits of the decision taken by the employer might have to be considered. Proceedings of that kind would represent the normal and appropriate forum for the determination of issues of procedural unfairness. The only obvious justification for commencing proceedings in the High Court prior to the final conclusion of the disciplinary process, on the grounds of some procedural deficiency, would be to obtain some form of injunctive relief. But the granting of such relief is always ultimately discretionary; and the court would no doubt be reluctant to exercise its discretion in favour of an applicant, where that would involve the “micro-management” of the disciplinary process. If and in so far as proceedings might be commenced solely for the recovery of damages which would be no more than nominal, it seems to me that it would be entirely open to the court, under the Civil Procedure Rules, to treat such proceedings as an abuse of process.

It is also important to emphasise that it can be no part of the function of this court, at least in the present proceedings, directed as they are to issues of process and procedure, to express any view as to the substantive merits of the decision of the appeal panel to uphold the earlier findings and conclude that Miss McMillan had failed to give a full and honest account of the circumstances surrounding the care of the patient at the RCA meeting on 1^st September 2010. It is undoubtedly a strong finding, particularly in the case of a senior employee with a previously unblemished disciplinary record where no apparent motive was suggested as to why she might have acted in this way. A differently constituted panel might well have come to a different view.

But it seems to me that there was plainly evidence before Mr Drake and his colleagues upon which they would have been entitled to come to the conclusion which they did. I refer particularly to the evidence of Dr Brennan and Staff Nurse Salt both of whom were present when Miss McMillan spoke to the patient whilst she was in the Intensive Care Unit at approximately 8am on 8^th June 2010, though I fully accept that there were points which could be made and, in large measure were made, in relation to their testimony, as well as other evidence which tended to support Miss McMillan’s case.

Miss O’Rourke QC, on behalf of Miss McMillan, was unwilling to concede that the actual conclusions of the appeal panel were within the range of possible findings which such a panel might reasonably have arrived at on the basis of the evidence before it. I can well understand why she was unwilling to make any such concession, in view of the possibility of a future claim for unfair dismissal. But, for my part, I take the view that there was evidence before the panel from which they could reasonably have concluded that the charges against Miss McMillan were made out. Beyond that, however, I think it is unnecessary and inappropriate to venture.

Before addressing the questions as to whether the appeal was conducted as a rehearing and whether there was actual or apparent bias on the part of the chairman, I think it is necessary to say something more about the issues which had to be determined by the appeal panel, the nature of the evidence adduced before it, the manner in which the appeal hearing was conducted and the findings made by the panel and the reasons given for those findings.

I do so with considerable reluctance for several reasons. In view of my earlier findings, these issues are entirely academic. There is also a real risk that the court might be drawn into some sort of re-examination of the merits of the decision. Furthermore, the exercise will involve a lengthy analysis of very extensive documentary and oral evidence which will have no bearing on the outcome of this litigation in the light of my previous findings. But in case any of those finding are wrong, I feel I have no alternative but to engage in an analysis of this kind.

I have already set out the wording of the charges against Miss McMillan. The gravamen of the allegations against her are the subject of the first of the two charges, namely that she did not provide a full and honest account of the circumstances surrounding the care of the patient at the RCA meeting on 1^st September 2010. The second charge, that she gave conflicting accounts of the circumstances surrounding the care of the patient on previous occasions is clearly intended to form the foundation for the management case on the first charge. Merely providing conflicting accounts would not, on its face, constitute a sufficient basis for pursuing disciplinary proceedings. But what is alleged is, of course, that she said one thing to the patient and her family shortly after the incident and another thing to the RCA and that on the latter occasion she did not give a full and honest account, in the light of what she had previously said.

So both the original disciplinary panel and the appeal panel would have to decide, in the first instance, what Miss McMillan had actually said at the RCA. I did not have a transcript or any other detailed record of what had happened at the RCA, but there was some evidence that it was carried out in a somewhat hurried fashion and that not all of the individuals who might have been able to contribute relevant information were asked to or were able to attend.

One employee who was, in fact, present at the RCA was named Alison Fuller. She was one of the witnesses named in Miss Steele’s letter of 16^th February 2012 as one of those whom the Trust intended to invite to attend the appeal hearing. She was, in fact, so invited; but was unable to attend on the day because of a domestic emergency arising out of her daughter’s illness. The transcript of the hearing shows that consideration was given to seeing whether she could give her evidence by telephone link; but that seems to have been impracticable.

Mr Rowley made it clear that the reason why he wanted to question Ms Fuller was as to the manner in which the RCA had been conducted. It was Miss McMillan’s case that the meeting did not address anything which had occurred after the actual delivery of the baby and was not, therefore, concerned to investigate what Miss McMillan may or may not have said to the patient or the family after that time or, indeed, what concerns others may have expressed after the delivery. But Mr Rowley did not ask for an adjournment so that Ms Fuller could attend at a later date. Indeed, he pointed out, correctly, that Dr Brennan, who had already given evidence, had already said that the enquiry had stopped at the point where the patient had been admitted to the intensive care unit.

Nonetheless complaint is made about the non-attendance of Ms Fuller at paragraph 26A of the Amended Particulars of Claim; and, at paragraph 28(b) of the pleading. Allegations of apparent, if not actual, bias against the panel were advanced on the footing that it had made findings adverse to Miss McMillan in respect of her participation in the RCA meeting, even though Ms Fuller did not attend to give evidence before the appeal panel and that the accounts she had previously given were consistent with Miss McMillan’s own evidence.

Be that as it may, Miss McMillan herself gave quite a detailed account of what had happened at the RCA meeting on 1^st September 2010 at paragraphs 81 to 92 of her witness statement dated 4^th November 2011 which was produced for the purposes of the original disciplinary hearing on 9^th November 2011. She added some further observations about it at paragraphs 18 to 22 of the supplemental witness statement dated 17^th February 2012 prepared for the purposes of her appeal. In each of those two witness statements, she specifically stated that, when the meeting came to consider the issue of the application of fundal pressure by Dr Bhandare, and apparently in response to a specific question from the chairman, Mr Ali Nejim, a consultant surgeon, she made the following statement: “If I had had concerns about fundal pressure I would have said so at the time and I didn’t.”

She also added, at paragraph 91 of her earlier witness statement, that, when questioned about the possible cause of the bleeding, she had said that she had reflected upon it and carried out research on the internet and on medical databases. She was of the opinion that such bleeding could be caused by a number of different factors, including increased pressure within the abdomen, which need not necessarily be caused by externally applied fundal pressure. She noted that in the final report of the RCA meeting, the contributory factors included fundal pressure which increased intra-abdominal pressure. But the root cause itself was identified as “haemorrhagic hypovolaemic shock with possible contributory bacteraemia/septicaemia.”

The only additional explanation which she gave in her witness statements as to what she meant about the observation about her concerns was that she was referring specifically to the time of the caesarean procedure itself, rather than any later stage. She did not, however, seek to qualify it in any other way, as, for example, by explaining, if such had been the case, that her views had changed in the light of the events which followed. She had the opportunity, in those witness statements, to explain what she meant and, if necessary, qualify it; and it might possibly have been better if she had been questioned further about these observations during the course of the appeal hearing in order to elucidate precisely what she meant and the context in which they were made. But it was her own evidence that she had had no concerns; and the question for the panel was whether this amounted to a full and honest account of her views in the light of what she was alleged to have said on previous occasions. That, of course, was the very point raised by allegation of previous inconsistent statements which was the subject of the second charge

The evidence in relation to the second charge was somewhat more complex and contentious. It focused on three conversations. The caesarean procedure took place over a short period in the late afternoon of 7^th June 2010. It appeared to be entirely successful and the patient and baby were taken back to the labour ward in the ordinary way. However, early in the evening, the patient collapsed and was transferred to theatre where the incision was reopened and the emergency splenectomy was carried out. The patient was then taken to the intensive care unit shortly before midnight.

It was shortly afterwards, at about 1am on the morning of 8^th June 2010 that Miss McMillan went to speak to members of the patient’s family. This was the first of the conversations in question. According to Miss McMillan, there was another member of staff present, a midwife named Amanda Abbott; but she was not asked to give evidence at the appeal or, so far as I am aware, at any stage during the investigation process or at the original disciplinary hearing. Furthermore, no doubt for obvious reasons, no member of the family was asked to give evidence, though Dr Catto had had a meeting with the patient and her partner on 4^th October 2010 at which they had been asked about what Miss McMillan may have said to them. Apart from the file note of that meeting, therefore, there was no direct evidence about this conversation from anyone who was present, save for Miss McMillan herself.

It was Miss McMillan’s evidence, as set out at paragraphs 68 and 69 of the earlier of her two witness statements and at paragraph 3 of her supplemental statement, that a member of the family, whom she thought was probably the patient’s father, who had not himself been present during the caesarean procedure, asked if the bleeding had been caused by the pressure required to deliver the baby. She was surprised by this question and her initial reaction was that another member of staff must have said something to the family about the fundal pressure applied by Dr Bhandare. However, she explained that she had never seen this particular complication before, that there was nothing different about this case and that there would be an investigation into the causes which would review all of the circumstances, including the pressure required to deliver the baby. She made it plain that she did not say anything which would have suggested that she herself attributed the bleeding to fundal pressure.

In fact, her surmise seems to have been correct. During the course of the original disciplinary hearing, Dawn Wright, who had been present during the procedure and who had clearly herself formed the view, either during the procedure itself or shortly afterwards, that Dr Bhandare had applied excessive pressure, accepted that she had had a conversation with the patient and her partner during which she had told them that the pressure applied by Dr Bhandare was called “fundal pressure” and was used to help deliver the baby. It appears that this conversation between Dawn Wright and members of the patient’s family took place between the time of the delivery itself and the patient’s readmission to theatre. She had not previously mentioned this at any earlier stage during the investigation process but explained that she had only just remembered.

Furthermore, the file note of the meeting between Dr Catto and the patient and her partner on 4^th October 2010 makes it clear that neither the patient nor her partner had any recollection of being told by Miss McMillan that the pressure applied by Dr Bhandare was or might have been the cause of the uncontrolled bleeding and the subsequent splenectomy. On the contrary, all they could remember being told was that she had said there would be an investigation.

So, one might have thought that the only possible conclusion that the original disciplinary panel and the appeal panel itself could have reached in relation to this initial discussion in the early hours of the morning of 8^th June 2010 would have been that Miss McMillan’s account should be accepted, at least in the absence of substantial grounds for disbelieving her evidence, and that the panel should therefore have concluded that some question had been raised about fundal pressure by the patient’s father but that all that Miss McMillan had said was that there would be a full investigation in due course in which all possible causes would be considered.

According to Dawn Wright, however, she spoke to Miss McMillan alone later on the same morning of 8^th June 2010 and asked her what she should say to the patient if she asked her what had happened. It was her evidence that Miss McMillan said something to the effect that it was all right, as she had been to see them and had told them it was “down to excess fundal pressure”. This was the second of the three crucial conversations involving Miss McMillan.

The time at which this discussion took place is somewhat unclear, but in her evidence before the appeal panel, Dawn Wright placed it some time after 9 o’clock in the morning. It also became clear that she it was her case that she had had another conversation that same morning with Miss McMillan together with two other individuals, a senior midwife named Gill Pownall and, it would seem at least one other midwife, Yvonne Turford. But, according to the transcript of the evidence which Mrs Pownall gave at the appeal hearing, she could not recall Miss McMillan saying anything of the kind reported by Dawn Wright or there being any mention of fundal pressure as a cause of any problem. Indeed, she could not recall anything being said by Miss McMillan which was in any way inconsistent with what she subsequently said at the RCA.

The evidence of Dawn Wright about this conversation is obviously of some importance. It must refer back to the conversation which Miss McMillan had previously had with members of the patient’s family in the early hours of 8^th June 2010. If accepted, this evidence would show that not only had Miss McMillan attributed the bleeding to the application of fundal pressure in the course of this discussion with Dawn Wright but that she had also stated that this is what she had told the family. On the face of it, however, Dawn Wright’s evidence on the point was inconsistent with that of Mrs Pownall; and Miss McMillan herself, of course, denied that she had said anything of the kind.

But it seems quite clear that there were, in fact, two conversations involving Miss McMillan and Dawn Wright on the morning of 8^th June 2010. Indeed this ultimately seems to have been common ground. The first was the one at which Mrs Pownall was present; and the second, which took place shortly afterwards, involved only Miss McMillan and Dawn Wright. Miss McMillan gave an account of this later meeting at paragraph 74 of her supplemental witness statement and, during the course of her evidence before the appeal panel. Indeed, it was her own evidence that, during this second conversation, Dawn Wright had asked her what she should say if the patient or her family asked her why the splenectomy was required.

But her account of what she said in reply was very different from that given by Dawn Wright. In her witness statement, she said that she had told her that she should not be discussing matters of this kind with the patient, since it was Miss McMillan herself who had the responsibility of being the sole point of contact with the patient and her relatives if questions of this kind were raised. She went on to tell her that she had spoken to the family about fundal pressure; but she explained that she had told the family that the issue of fundal pressure would be examined, along with other possible causes of the bleeding, as part of the subsequent RCA analysis. She had never intended to indicate that this was, in fact, the cause.

Two further matters should, of course, be borne in mind: firstly, as Dawn Wright herself had accepted, she had had a brief conversation with the patient’s partner after the caesarean delivery about the pressure applied by Dr Bhandare; and, secondly, it appears to have been common ground (though its relevance was a matter of debate) that there had been a good deal of gossip, amongst the midwives in particular, about the fundal pressure applied by Dr Bhandare and its possible consequences.

Be that as it may, the conflict of evidence was, in the end, quite a narrow one. There was clearly a discussion between Miss McMillan and Dawn Wright at which Mrs Pownall had not been present and in the course of which Dawn Wright asked Miss McMillan what she should say to the patient and her relatives if she was asked about the cause of the bleeding. The dispute is as to how Miss McMillan responded; and she appeared to accept, at least in her witness statement, that she had made some reference to fundal pressure in her reply, albeit in different words and in a very different context.

The third discussion which was the subject of particular scrutiny in the evidence and in the course of the appeal hearing was that which undoubtedly took place in the intensive care unit at about 8 o’clock in the morning on 8^th June 2010, when Miss McMillan went to see the patient. There is an acute conflict of evidence about what was said. But the management relied upon the testimony of two witnesses in particular, Dr Albert Brennan, an anaesthetist, and Sadie Salt, a staff nurse, both of whom were present when Miss McMillan spoke to the patient in the intensive care unit. It was the evidence of both of these witnesses that they had heard what Miss McMillan had said to the patient and that she had made specific reference to the pressure applied to her abdomen during the course of the caesarean procedure.

It is fair to say that their accounts did differ in respects which might be regarded as material. I did not have the benefit of seeing either of their original statements, but Dr Brennan was very firm and clear in the evidence he gave during the course of the appeal hearing itself that he had heard Miss McMillan say to the patient that she had had some bleeding, that she had had her spleen removed and that this was due to the bleeding and was caused “when we were pushing baby out”. When questioned by Mr Rowley during the hearing before the appeal panel, he stated quite firmly that neither the word “fundal” nor “pressure” were ever used. He did, however, concede that the expression “when we were pushing the baby out” was or might have been used in a temporal, rather than in a causative sense.

Sadie Salt’s evidence was to the effect that she heard Miss McMillan referring to “fundal pressure” or “pressure on tummy” when explaining the situation to the patient. It must be borne in mind that she was an intensive care nurse and not a midwife and might not have been familiar with the precise technical terminology. When asked about this by Mr Rowley during the course of the hearing before the appeal panel, she accepted that she did not have a particularly good recall, but was fairly firm in her evidence that the word “pressure” was used though she was less sure about the use of the term “fundal”. It was also her evidence that later that day, as she was preparing the patient to receive her baby, the patient referred to the dressings on her abdomen and asked: “Is this from when the doctor was pushing on my tummy?” But she did not answer the question, as she did not think it was appropriate for her to do so. But she did not recall hearing Miss McMillan referring to “excessive” pressure or saying anything that linked pressure and bleeding.

During the course of the appeal hearing, there was also some evidence as to the extent to which the patient would have been aware of what was being said to her on this occasion. In fact, this was a point which Miss McMillan herself had raised at paragraph 70 of her witness statement of 4^th November 2011. After referring to the visit to the patient at about 8am on 8^th June 2010, she observed that the patient was sedated and ventilated and that she was not sure what information she could take in. That was why she went to see her once again in the early afternoon of the following day, 9^th June 2010. Dr Brennan was also asked about this by Mr Rowley. The patient was intubated at the time, though the amount of sedation had been “turned down” in preparation for extubation. But Dr Brennan emphasised that she was still “on a good amount of sedation” though apparently conscious. She obviously could not speak because of the tube; but Dr Brennan accepted that she seemed to respond to what Miss McMillan was saying to her.

No specific questions on the point were put to Sadie Salt, but she agreed with a portmanteau question from Mr Rowley which referred to the patient as being “fairly groggy but awake”. Karen Price, whose evidence was directed to the conversation between Miss McMillan, the patient and her partner on the following day, 9^th June 2010 added some further information. She understood that sedation had been stopped at about 10 o’clock in the morning on 8^th June 2010, so that the conversation on the following day took place some 28 hours afterwards.

It would appear from the witness statements which she made for the purposes of the original disciplinary proceedings and the appeal itself, that Miss McMillan had little recollection of what she had said to the patient on the occasion of her visit to see her in the intensive care unit on the morning of 8^th June 2010. Indeed, at paragraph 3 of her supplemental witness statement of 17^th February 2012, immediately after referring to the discussion she had had with members of the patient’s family in the early hours of 8^th June 2010, she went on to say this:

“I do not recall debriefing the patient in ICU later on 8 June 2010, although if I had debriefed the patient at this time, I am certain that I would not have attempted to attribute any specific aspect of the care provided as the cause of the splenic bleed as I did not/do not know what caused it. If I had, I would have informed the patient that there would be an investigation into the case, and all aspects, including the pressure required to deliver the baby, would be examined as part of this investigation as this was my consistent position all along. I reflected aloud to Dr Allen that I did not know what had caused it but acknowledged fundal pressure as a possible contributory factor. I did not make this comment to the patient.”

In this passage, she referred to a junior SHO named Natanya Allen who also provided evidence in the course of the investigation and attended as a witness at the appeal hearing. It appears from the transcript that she was present during the course of the delivery. But she insisted that she had not been present when Miss McMillan visited the patient in the intensive care unit, whether on 8^th June 2010 or, it would seem, at any other time.

When Miss McMillan herself was asked by Mr Rowley, during the course of the hearing before the appeal panel, about her visit to the patient on the morning of 8^th June 2010, she said that the patient recognised her, had her eyes open, knew who she was and nodded to things which she said to her. So she seemed to be able to understand what Miss McMillan was saying. But she went on, in effect, to repeat what she had said in her witness statement, namely that she did not recall actually “debriefing” the patient on that occasion. So far as she was concerned, that took place the following day, in the early afternoon of 9^th June 2010.

But on that latter occasion, she insisted that she did not at any point tell the patient or her family that she thought that the bleeding and the consequent splenectomy had been caused by fundal pressure; and her evidence on this point was supported by Karen Price. She also suggested that Dr Brennan and Mrs Salt may have been affected by what they had heard from other members of staff, having regard to the gossip which already appeared to have been circulating about the pressure applied by Dr Bhandare.

When she was pressed by the Chairman to respond to the evidence of these two witnesses, she said that they might also have misunderstood something which she herself had said to the patient. She explained, albeit not very clearly, that she had told the patient about the question which had been put to her by the patient’s father in the early hours of the morning which, on this occasion, she formulated in these words: “…Was the bleeding caused by the pressure required to deliver the baby?” Later in her evidence she repeated the same point that she had told the patient that the family had asked whether the bleeding had been caused by the pressure required to deliver the baby. She also went on to make the powerful observation that, if she had, in fact, told the patient’s father that the incident had been caused by the pressure exerted by Dr Bhandare during delivery, it was highly unlikely that he would have forgotten.

Finally, of course, Miss McMillan gave evidence about what happened when she went to visit the patient once again on the early afternoon of 9^th June 2010, when at least one other member of the patient’s family was present, as well as Mrs Price. But there is nothing to suggest that she made any reference to fundal pressure as the actual or possible cause of the bleeding and consequent splenectomy during the course of this visit.

Before moving on from these conversations, I should say something about a point which was raised in the letter from Miss McMillan’s solicitors dated 18^th May 2012 and during the course of the trial, though it was not, I think, specifically pleaded. It will be recalled that the second charge against Miss McMillan was that she had provided conflicting accounts about the patient’s care “on 8^th June 2010 when she visited the Patient in ICU and discussed her care with her family” and subsequently at the RCA on 1^st September 2010. But, as the letter correctly pointed out, there was no evidence that Miss McMillan had ever spoken to any members of the family in the intensive care unit on 8^th June 2010. That, it was suggested, meant that the management could not prove its case on the second charge and, presumably, therefore, would be unable to do so in relation to the first charge. It was, however, then pointed out that, in the document setting out its findings, the appeal panel had altered the punctuation used in the charge as originally formulated in such a way as to suggest two or more independent prior discussions. As amended, the charge refers to conflicting accounts given by Miss McMillan “when she visited the patient in ICU – and discussed her care with her family, and then on 1 September 2010” at the RCA. This change in the punctuation was itself the basis of a further allegation about the panel’s attitude to Miss McMillan which I will deal with briefly at a later stage.

For my part, I do not think that there is anything in this particular challenge. I accept that the second charge was not formulated with the degree of clarity and precision that someone facing such serious charges could be entitled to expect. There is, at least, some degree of uncertainty as to precisely what previous conversations are being referred to. But the management statement of case dated 31^st October 2011 and prepared by Dr Catto for the original disciplinary hearing clearly relied upon the evidence of Dawn Wright as to what Miss McMillan had told her she had said to the patient’s family in the early hours of 8^th June 2010 as one of the previous inconsistent statements which she is said to have made, as well as what she was alleged to have told the patient herself in the intensive care unit on the morning of 8^th June 2010. I refer to paragraph 4.5.1(b) of the statement of case, a copy of which was produced during the course of the trial.

One might have thought that this would have cured any ambiguity or uncertainty in the way in which the second charge was formulated. Even as it stood, it is at least capable of being interpreted as referring to two distinct conversations, even though the more natural meaning would be that it referred to the single discussion with both the patient and members of her family in the intensive care unit. Furthermore, it seems quite clear that Miss McMillan was aware of the fact that reliance was placed by the management of the Trust on the evidence of Dawn Wright about what Miss McMillan said she had told the family in the early hours of 8^th June 2010; and she was well able to deal with it in her witness evidence.

But the very point was also specifically raised by Mr Rowley during the course of the appeal hearing itself. This was just before the panel heard evidence from Karen Price who had been present when Miss McMillan visited the patient once again in the intensive care unit on 9^th June 2010. Her evidence was regarded as being of considerable importance by Miss McMillan and her advisers, because it supported Miss McMillan’s own evidence that, on this occasion, she had had a further discussion with the patient and, it would seem, her father, in the course of which, in answer to a question about why the problem had occurred, she told them that it was a rare occurrence, that they did not know why it had happened, but that it would be investigated formally and they would be informed about the results of the investigation.

According to the transcript of the hearing, Mr Rowley was about to explain the potential relevance of this evidence. But, after a brief discussion with his client, he then raised the point that the only conversation between Miss McMillan, the patient and one or more members of her family was that which took place on 9^th June 2010 at which Karen Price was present. He pointed out that, on 8^th June 2010, she had had a discussion with members of the family in the early hours and subsequently, at about 8 o’clock in the morning, with the patient herself in the intensive care unit, but not at any time with both the patient and members of her family. So there was, on the face of it, a problem with the charge as formulated.

However, it is quite clear that he did not press the point. Indeed, he expressed the clear view that the panel would have the power to amend the charge; and the Chairman intervened to say that he agreed, before asking what light the conversation on 9^th June 2010 might cast on the events of the previous day. In fact, of course, the potential relevance is obvious: if, on two occasions, both before her conversation with Dawn Wright alone on the morning of 8^th June 2010 and with the patient and members of her family the following day, Miss McMillan had said that there would have to be an investigation into the incident, without any mention of fundal pressure as a possible cause, why should she have said something different to Dawn Wright?

Be that as it may, whatever ambiguity there may have been in the wording of the second charge, the management’s case was clearly formulated, Miss McMillan was able to respond to it and there was no substantial or sustained challenge to the formulation of the charge or the admissibility or relevance of the evidence adduced on behalf of the management in relation to the discussions which Miss McMillan had had with various members of the patient’s family in the early hours of 8^th June and subsequently with the patient herself at about 8 o’clock the same morning.

There was, of course, a good deal of other evidence before the appeal panel. But I was not provided with the bundle or bundles of documents prepared for the appeal hearing. I did, of course, have copies of the statements made by Miss McMillan herself, as well as those made by Dawn Wright during the course of the investigation. During the appeal hearing, the statements of each of the witnesses who were called to give evidence were taken as read, so it is not possible to discern from the transcript itself what those statements contained, save to the extent that they were the subject of specific questions from Mr Rowley or from the panel.

There were a number of other witnesses besides those whose testimony I have specifically referred earlier in this section of my judgment; and some of the evidence adduced was clearly regarded as important by Miss McMillan and her advisers. I refer, for example, to the apparent emotional fragility of Dawn Wright, her obvious distress and concern about the possibility that it was the fundal pressure applied by Dr Bhandare which may have been the cause of the very serious problems experienced by the patient, and her very belated concession that she had herself discussed this topic with the patient’s family shortly after the caesarean procedure had been completed. There was also evidence which touched upon of what appears to have been quite extensive gossip, amongst the midwives in particular, as to the conduct of Dr Bhandare and the possible consequences of the pressure which he applied. In addition it seems fairly clear that, on at least two or more occasions, Miss McMillan had stated that there would be a full investigation in due course, without saying anything which might have suggested that fundal pressure was or might have been the cause of the problems in question.

But I have tried to summarise as best I can the evidence which seemed to bear specifically on the three conversations with the patient’s family, with Dawn Wright and with the patient herself on which the management case was essentially based. It seems to me that, though much of this evidence was challenged and, though there was obviously scope for misunderstanding and misapprehension, it provided material upon the appeal which, if accepted by the panel, after a proper appraisal, could establish the management case that, in the course of discussions with the patient’s family and with the patient herself on 8^th June 2010, Miss McMillan had expressed the view that fundal pressure was or may have been the cause of the problems subsequently experienced by the patient. It is not for me to say whether I or, for that matter, another appeal panel, would have reached the same conclusion.

Having sought to elucidate the fundamental issues which had to be resolved by the appeal panel and the evidence adduced on behalf of the management in support of its case on those issues, it is necessary to say something about the manner in which the hearing itself was conducted.

It will be recalled that extensive, though largely unparticularised, allegations of unfairness were set out at paragraphs 26 and 26A of the Amended Particulars of Claim and were the subject of lengthy cross-examination of Mr Drake and Miss Steele during the course of the trial. In support of her closing submissions, Miss O’Rourke QC prepared a lengthy Schedule setting out her criticisms of the way in which the appeal had been conducted, incorporating no less than 54 individual complaints; and these were the subject of responsive comments on behalf of the Trust and further observations on behalf of Miss McMillan.

I have read through this Schedule; but I do not intend to deal with each and every fact and matter referred to within it. As I have previously said, the transcript of the appeal hearing is the best evidence of what occurred; and as I observed during the course of the trial itself, it must ultimately be a matter for me to decide, on the basis of that transcript, whether there was any fundamental unfairness in the way in which the hearing was conducted.

I fully appreciate that Mr Rowley and, more particularly perhaps, Dr Kavadas, gave an account of the adverse impression made upon them by the way in which the Chairman conducted the proceedings. But general impressions of that kind are no substitute for a detailed critique of what occurred; and, as it seems to me, that must be based firmly on the transcript. I should add that, for the purposes of this analysis, I assume that the actual form of the hearing was one which the panel had the discretion to adopt, whether or not it was a “rehearing” of the kind contemplated by the exchange of correspondence in February 2012. The question at this stage of my judgment is whether it was conducted unfairly or, I should add, in a biased manner or at least with apparent bias, within the constraints imposed by the nature of the procedure adopted.

I propose, therefore, briefly to go through the transcript in order to see whether any of the criticisms made by Miss O’Rourke are made out. She very helpfully summarised the relevance of the individual items in the Schedule in a separate document, grouping them under ten separate heads which were very broadly based on the allegations set out at paragraphs 26 and 26A of the Amended Particulars of Claim. I will refer to these headings as occasion requires.

The hearing started with all those present introducing themselves. Mr Drake indicated from the outset that, despite his experience as an Employment Tribunal Judge, he would be adopting quite a different approach to the way in which he would normally deal with these matters if he were sitting in that capacity. He indicated that the appeal hearing was meant to be “much more informal”, even though it was, of course, nonetheless, in some respects, a formal process. He then referred to the detailed grounds of appeal submitted on behalf of Miss McMillan but pointed out that, in view of the breadth and range of the criticisms of the previous disciplinary proceedings, the panel had considered it necessary for there to be a rehearing, so that they could look at the evidence and reach their own conclusions. He asked for formal confirmation from Mr Rowley that this was agreed; and he, in turn, said that he thought this would be in the interests of all parties. The Chairman then made the following observations about the procedure:

“To that extent it means that we may have to conduct our process certainly as if we were first investigating that evidence ourselves and hearing that evidence and testing it and applying the appropriate canons of construction to it in order to interpret what we will determine in our view are the facts relative to the two allegations.”

Mr Rowley did not dissent and the Chairman then pointed out that if the panel did not find the allegations well-founded, that would be an end of the matter; but, on the other hand, if the allegations were established, the panel would have to consider what, if any, disciplinary action was to be taken. It was at this stage that he added the observation that:

“The range of steps that we have power to take are wide, as you are aware. No doubt, you would, if we get that far, seek to address us on that.”

He went on to make it clear that there would be a two-stage process, depending upon the outcome on the substantive issues.

There followed a brief discussion about the contents of the bundles and the Chairman then made some further observations about the procedure which the panel intended to adopt. What he said was this:

“The way that we propose to deal with this, therefore, is to invite each relevant witness to come before us again today and we are not expecting them to be reading out their statement as they would if this were an employment tribunal. I will simply be asking them who they are and whether they confirm that the statement that we have in this bundle is, indeed, what they have given as a statement in the past.

I will be asking them if there are any amendments or changes that they wish us to take into account, but I will be making them aware of the fact that they will no doubt face questions from you and we will possibly also have to ask questions. We are not here to referee an adversarial battle. This is, as we put it – and I use the word guardedly, because it has a specific legal meaning – it is an inquisitorial exercise. We can ask questions ourselves. We are anxious to get to the truth, to find out what we think is the appropriate finding as to what did or did not happen in relation specifically and only to the two allegations that are raised here. We will stick to that and I will ask you to stick to that, if you do not mind.

Therefore, we have a list of witnesses that we are going to be hearing from and we will simply invite that witness to come before us now and I will guide them through what we want to hear about confirmation of their witness statement and then invite you to ask questions.”

He then asked whether Mr Rowley had any comments or questions which he wished to raise at the start. But the only point which he did, in fact, raise was whether all the members of the panel had had the opportunity to read the papers and supplemental statements which had been lodged on behalf of Miss McMillan. Mr Drake confirmed that they had had a chance to read them.

It is, of course, Miss McMillan’s case in the present action that the approach adopted by the Chairman and the other members of the panel did not amount to a “rehearing” in the sense in which that term must be regarded as having been used at the time of the exchange of correspondence on 16^th and 17^th February 2012. In her Schedule, Miss O’Rourke goes on to point out several instances in which, it is said, the Chairman descended into the arena, by curtailing Mr Rowley’s questioning of Dawn Wright, by cross-examining witnesses supportive of Miss McMillan and by leading witnesses who were not supportive. The question whether this was a “rehearing” in the material sense is a matter which I will have to determine in due course.

The first witness was, in fact, Dawn Wright. When asked to confirm her witness statement, she added that she had now remembered that, after the caesarean procedure, the patient’s partner had asked why the doctor was pressing on her stomach so much; and she had replied that it was called “fundal pressure” and was intended to help the delivery of the baby. Subject to that observation, she confirmed her statement.

Mr Rowley then had the opportunity to cross-examine. After asking her about her qualifications and training and her experience of fundal pressure, he went on to question her about her dealings with Dr Bhandare, the attitude of other midwives and staff towards him and how he carried out his responsibilities during the caesarean procedure. She referred to her relief when Miss McMillan arrived to take charge and added the observation that she was always very good with communication so that you always knew where you stood with her.

Mr Rowley then started to ask some questions about the application of fundal pressure by Dr Bhandare. It was at this stage that the Chairman intervened and stated that he wanted to be sure how much this witness could tell the panel about the events which specifically related to the two allegations. He added that the issue as to whether or not fundal pressure was applied and whether it was appropriate was not something which he considered that the panel was there to determine. So he asked Mr Rowley to explain the relevance of this line of questioning to the two specific charges that the panel had to determine.

This intervention and what followed were the subject of substantial criticism on behalf of Miss McMillan. It was contended that the Chairman wrongly sought to restrict the way in which Miss McMillan’s case was put and the testing of evidence of a key witness by Mr Rowley.

The witness then withdrew and Mr Rowley sought to summarise the defence case. It should, perhaps, be noted that the Chairman intervened to emphasise that the panel did not see this as a case where Miss McMillan had to prove a defence. Be that as it may, Mr Rowley then sought to summarise the relevant aspects of Miss McMillan’s case. She had had no concerns during the course of the procedure and was unaware that anyone else present had any concerns about what had occurred. In fact, however, unknown to her, Dawn Wright and others did in fact have concerns about the manner in which fundal pressure had been applied and discussed them at an early stage with the patient and her partner and then with other members of staff, including those working in the intensive care unit. It was likely that Dawn Wright’s discussion with the family shortly after delivery had led to the question raised with Miss McMillan by the patient’s partner when she met the members of the family at about 1 am on 8^th June 2010.

The Chairman then intervened once again to observe that surely the issue was what was actually said by Miss McMillan when she was speaking to the patient or her family. Mr Rowley responded by indicating that it was Miss McMillan’s case that Dawn Wright had concerns which she raised later that same morning with senior midwives, Sue Speak and Christine Baynham, who told her that if she had concerns she would have to document them in the notes. She then spoke to Miss McMillan and was reassured by her that all these matters would be investigated, that she had done nothing wrong and had given good care. But the concerns which she had raised had by this time permeated through the department and Dawn Wright herself remained anxious as to whether she had acted properly in not raising her concerns at an earlier stage.

The case which Mr Rowley wished to pursue, therefore, was whether Dawn Wright was seeking to justify what she had done or failed to do by attributing the concerns about fundal pressure to Miss McMillan, rather than to herself. It was, of course, Miss McMillan’s case that she had never had any concerns about fundal pressure, which is what she said at the RCA meeting on 1^st September 2010. Mr Rowley explained that her accounts had been consistent, rather than conflicting. Other members of the medical and nursing staff, such as Dr Brennan, had misunderstood the position, since they had gained the impression that the concerns about the application of fundal pressure, which were apparently circulating amongst the staff, had emanated from Miss McMillan.

At this stage the Chairman intervened yet again to say that he understood what Mr Rowley was saying but insisted that what the panel was interested in knowing was what was actually said to the patient and her family, whatever may have triggered it. Mr Rowley responded by saying that he wanted to move on to ask Dawn Wright about the conversation she had had with the patient’s partner in which he had asked about the application of pressure during the course of delivery. But the Chairman indicated that the panel would be more interested in the answer given by Miss McMillan to the question raised by the patient’s family when she met them in the early hours of 8^th June 2010. Whilst he understood what Mr Rowley was saying about the circumstances which led to the question being asked, the issue which the panel had to determine is what answer was given.

There was then a brief exchange in which the Chairman observed that Dawn Wright had already made it clear that she had concerns about the application of fundal pressure by Dr Bhandare. After a reference to other witnesses who were present when Miss McMillan went to see the patient later in the morning of 8^th June 2010, such as Dr Brennan, the Chairman went on to make the following observation apparently directed to the question as to what might have triggered the question raised by the patient’s family:

“All right, I think we have to stick to what the issues are here and there is a danger that widening the view of the reasons why the event took place may only be partly helpful to us”.

After a brief observation by Mr Rowley about the pivotal role of Dawn Wright, the Chairman went on to say the following:

“I understand that. I understand that there may be, what you and I would call, a causa sine qua non, a series of circumstances without which something might not have happened in the future. What we are looking at, for the purposes of today, is what did happen? What was said on a particular occasion? Was something said to the patient that then gave rise to the matter escalating or is the subject of the specific allegations being made here. Was there a full and honest account given of the circumstances at the RCA? I think we must stick to that, otherwise I fear we might be doing Miss McMillan a disservice unless we stick to the issues that are relevant to the allegations.”

Mr Rowley did not take issue with any of these points. On the contrary, he said: “I am with you”. He then asked whether he could tell the Chairman what he was intending to ask in order to see whether he agreed with it. He wanted to ask the witness whether she recalled the conversation with the patient’s partner, whether he was upset when he left the theatre and about a conversation which she had had with Christine Baynham during the course of which, it was suggested, she was advised to fill in some form of report. He then said that he would like to ask her if she was worried at the time that she had somehow failed in her duty. But he was not going to make any accusations, as he did not want her to feel that she was in trouble. The Chairman asked again how this would help the panel actually to determine what was or was not said to the patient. Mr Rowley’s response was to the effect that he thought that he and the Chairman were probably thinking along the same lines. He added that he thought the intervention was helpful and that it was “just the sort of direction” he was hoping he would be giving during the proceedings.

Mr Rowley then had a brief discussion with his client which was, apparently, overheard by the panel. The Chairman then intervened to say:

“Can I just give you assurance – because actually we have heard that – what we are looking at is purely and only whether the two allegations that we are to determine today, have been made out by the witnesses produced by the management. Nothing else at all. We are not here to determine the appropriateness of the actions during delivery or anything of that kind. We are very clear about the two matters we need to look at, and they are only those two matters.”

There was then a brief reference to certain paragraphs of the management statement of case prepared for the original hearing and of Miss McMillan’s grounds of appeal, both of which simply set out the two charges against her.

Mr Rowley then said that he was intending to curtail the questions he was proposing to ask the witness, but asked for the opportunity to come back after any questions from the panel. The Chairman made it quite clear that there would be no difficulty in such a course and emphasised that it was not the panel’s intention to curtail anything without good reason, though they were there to determine specific issues. Accordingly, Mr Rowley said that he intended to ask the witness about the conversation with the patient’s partner.

The witness was then recalled and questions on this point were put to her by Mr Rowley. He then went on, however, to ask about the conversation which she had had on the morning of 8^th June 2010 with Mrs Pownall and Miss McMillan herself. The Chairman did not intervene to prevent or limit these questions. But, after starting to answer the questions put to the witness, it seems fairly clear that she became upset and Mr Rowley took the decision not to pursue the point further.

But further questions were then put by the panel, primarily by Mr Anumba, who clearly appeared to be interested in the application of fundal pressure during the course of the caesarean procedure. The Chairman then asked her specifically whether she had been present when Miss McMillan spoke to the patient on 8^th June 2010. Her answer was, of course, in the negative; and the Chairman commented that, in those circumstances, she would not be able to help the panel with what was said on that occasion. She responded by saying that she could not, except from what Miss McMillan had said to her afterwards. The Chairman then asked about what she had in fact said; and the witness repeated her evidence that Miss McMillan had told her that she had been to see the family and had told them that “it was down to the excessive fundal pressure.” The witness went on to say that she was taken aback by this, despite her own views, since it was not the sort of thing that would have been said before an investigation had taken place. There was then some further debate about the meaning of the expression “fundal pressure”; and the witness said that that was the expression which Miss McMillan had used.

The Chairman then observed that the witness was clearly distressed and that she must have been distressed at the time. He asked whether there was any possibility that this may have caused her to misunderstand or misinterpret what Miss McMillan had said to her. She denied this; and the Chairman asked again, whether she was sure about it and if so what was it that made her so sure. Her response was that it had remained clear in her mind and that Miss McMillan had not explained it in a way which could have been misinterpreted.

A final opportunity was then given to Mr Rowley to ask some further questions, followed by a final question from Mr Anumba.

As I have said, the way in which the panel and, Mr Drake, in particular, handled this witness was the subject of extensive criticism on behalf of Miss McMillan. The principal allegation is that, in effect, he prevented Mr Rowley from putting Miss McMillan’s case to the witness. I have to say, however, that I simply do not see how that criticism can be justified in the light of the transcript. On the face of it, the Chairman was clearly right to ask about the relevance of the questions which Mr Rowley was proposing to put; and I also consider that he was entirely justified in reminding Mr Rowley that the issues to be determined were those set out in the two charges against Miss McMillan. I can well see that there might have been differences of view as to the relevance of some of the background matters referred to by Mr Rowley when he sought to explain the nature of Miss McMillan’s case. But he had the opportunity to do so; and he put forward his client’s case clearly. As I read the transcript, the Chairman did not, in fact, rule against him. On the contrary, it was Mr Rowley who backed off and did not seek to put these matters to the witness.

I do not doubt that Mr Rowley found himself in something of a dilemma. He had to deal with an apparently fragile witness whose evidence on a critical matter was clearly the subject of a direct challenge by his client. He was also attempting to present her case before a panel chaired by an experienced and confident solicitor and part-time Employment Tribunal judge whose opinions might well be followed by the other members of the panel. Mr Rowley had to make a decision as to how best to proceed in his client’s interests. He would not have wished to antagonise Mr Drake or the other members of the panel; and he may well have felt considerable difficulty in deciding how best to question the witness. He could have stood his ground and insisted on putting the various matters which he had raised with the panel to the witness herself. But he did not do so. On the contrary, he elected to cut his cross-examination short. If one could turn back the clock and re-run the events of that day, he might have preferred to take a different approach. But for my part, I cannot accept the criticisms of the Chairman.

Furthermore, the course adopted by Mr Rowley meant that clear evidence from Dawn Wright about what Miss McMillan had said to her remained effectively unchallenged. It may be that Mr Rowley was influenced in the way in which he approached this evidence by the Chairman’s insistence that the panel must confine itself to the evidence of what Miss McMillan actually said to the patient or her family, bearing in mind that the witness was not herself present on either occasion. But the Chairman did not indicate that her evidence was irrelevant, still less make any ruling to that effect. On the contrary, it was, or ought to have been, quite apparent that he regarded her evidence as potentially important in view of the questions which he put to her in order to see whether there could have been any misunderstanding or misinterpretation of what she said Miss McMillan had said to her. And, Mr Rowley had a further opportunity to question her after this exchange, but did not deal with this particular point.

I can deal briefly with two other criticisms of the way in which this witness was handled. It was suggested that the Chairman had led the witness by the form of some of the questions which he put to her, particularly with regard to the meaning of the expression “fundal pressure”, whilst pulling up Mr Rowley himself, on one or two occasions, for leading his own witnesses. In my judgment, there is nothing in the point. Even if the way in which the Chairman formulated his questions can be regarded as leading the witness, that is a privilege accorded to the judge or tribunal chairman, and I have little doubt that if Mr Rowley had asked for a further opportunity to clarify the point, he would have been permitted to do so. Another criticism was that none of the panel sought clarification from the witness as to whether she had had one or two discussions with Miss McMillan on the morning of 8^th June 2010. It is noticeable that Mr Rowley himself did not seek to do so, no doubt for the very good reason that, as I have already pointed out, Miss McMillan herself appears to have accepted that there were two meeting, the second of which involved herself and Dawn Wright alone. So there was no issue on the point; and the criticism is unjustified.

The next witness was Mrs Sadie Salt. She, it will be recalled, was a nurse on the intensive care unit who was present when Miss McMillan came to visit the patient at about 8am on 8^th June 2010. I have already commented on her evidence and pointed out that her recollection appeared to differ from that of Dr Brennan, who was also present. Mr Rowley put his case to her and made some progress. She accepted that her recollection of the conversation between Miss McMillan and the patient was not by this time particularly good; and she also accepted that nothing that Miss McMillan had said had seemed inappropriate or in any way alarmed her. But Mr Rowley did not challenge her evidence, as set out in her original statement, or her oral evidence that reference was made by Miss McMillan to “pressure” even if the expression “fundal pressure” may not have been used. Nor was it suggested to her that Miss McMillan may have been referring to the question which had been raised earlier that morning by a member of the family.

The only procedural criticism made in Miss O’Rourke’s Schedule was that the Chairman asked the witness to speculate about what the patient might have understood by what Miss McMillan had said to her. But the witness appears to have understood the question as being directed to whether the patient seemed to be in a position to understand what was being said to her. But even if the Chairman’s question was an invitation to speculation, it would be a point of minimal importance in the overall context of the hearing and could not possibly in my judgment, constitute an indication of bias, as suggested in the Schedule.

The next witness was Dr Brennan, the anaesthetist who had also been present at the time of Miss McMillan’s visit to the patient in the intensive care unit at about 8am on 8^th June 2010. After he had been asked by the Chairman whether he wished to add to or amend his earlier statement and some associated notes, the witness asked whether what had occurred at the earlier disciplinary hearing was relevant. The Chairman replied by pointing out that the current hearing was intended to reconsider the evidence and not determine the fairness or otherwise of the previous hearing. That is the subject of further criticism; but, for my part, I can see nothing inappropriate in the Chairman’s observations.

Mr Rowley then cross-examined the witness, who remained clear and firm in his evidence about what Miss McMillan had said, though, as previously noted, it differed in ways which might be regarded as significant from the account given by Mrs Salt. Mr Rowley then indicated that he had prepared a number of further questions for the witness but wished to take stock. The Chairman pointed out that it was entirely a matter for him to decide what questions to raise, so long as they were specific to the two allegations. In the circumstances, Mr Rowley decided not to put any further questions to the witness. As it happens, this exchange was not the subject of a specific criticism.

What was, however, the subject of criticism was the way in which the panel subsequently dealt with the witness. It is alleged that the Chairman inappropriately led Dr Brennan regarding the disparity between his evidence and that given by Mrs Salt. He reminded him that, whilst his recollection was that Miss McMillan had used the word “pushing”, Mrs Salt had said that she remembered the word “pressure” being used, without necessarily any use of the word “fundal”. He then asked the following question:

“Is there any possibility that there might be some confusion between the two of you? Are you saying something different or are you saying essentially the same thing?”

In response, the witness simply emphasised that he had been intrigued to see how Miss McMillan was going to explain what had happened and that because he realised that further investigations were likely to take place, he had made a specific point of remembering the exact words used. Mr Rowley did not pursue this particular point any further, but returned to ask a brief question about the RCA meeting on 1^st September 2010 to which Dr Brennan replied by confirming that the meeting did not consider any matters subsequent to the patient’s admission to the intensive care unit.

The criticism set out in the Schedule is that the Chairman was effectively attempting to lead the witness in a way which would not have been permitted if the case against Miss McMillan had been presented in the usual adversarial fashion. It was emphasised that the inconsistencies between the accounts given by Dr Brennan and Mrs Salt were an important ingredient in Miss McMillan’s detailed grounds of appeal and it was suggested that what the Chairman was effectively seeking to do was to encourage Dr Brennan to deny any such inconsistencies.

I agree that the question was somewhat clumsily formulated, though the panel was, at least in principle, entitled to explore Dr Brennan’s evidence in a little more detail, having regard to the different terminology used by him and by Mrs Salt. I also agree that, ultimately, the weight to be given to the evidence of these two witnesses, having regard to the inconsistencies in question was a matter for the panel itself. But, as Miss O’Rourke’s Schedule makes clear, these inconsistencies were a “key facet” of Miss McMillan’s detailed grounds of appeal; so it is difficult to see how any fair criticism can be directed at the Chairman for trying to elucidate the point, though his attempt to do so clearly got nowhere. In my judgment, the criticism is of minimal importance and does not come near establishing any serious irregularity or unfairness in the conduct of the hearing.

Criticism is also directed at the supposed failure of the panel to explore how far Dr Brennan was from Miss McMillan when the conversation took place or how clearly he could hear her comments. Given the inquisitorial approach adopted by the panel, there might have been some significance in the point if Miss McMillan had not been legally represented and there had been no questioning of the witness on her behalf. But it is quite clear that Mr Rowley did ask Dr Brennan as to where he was standing and it was not suggested that he was too far away to hear what was said. In the circumstances, once again, I see no merit in the criticism.

Next came Dawn Peverley, who was briefly questioned by Mr Rowley about the RCA to which, it seems, she was not, in fact, asked to attend. No criticism was made of the way in which this witness was handled.

The next witness who was called to give evidence was Karen Price, the senior nurse on the intensive care unit who was present when Miss McMillan made a further visit to the patient in the early afternoon of 9^th June 2010. Other members of the patient’s family were also present on this occasion; and it was immediately prior to the witness being called that Mr Rowley made the point that it was only on 9^th June 2010 that Miss McMillan had a conversation with both the patient and her family. That, of course, was a reference to the way in which the second charge against Miss McMillan was formulated. But, as I have previously explained, he accepted that the panel had the power, if necessary, to amend the charges; and the Chairman agreed that it clearly did.

But the Chairman then went on to ask whether this evidence cast any light on what had or had not been said on the previous day, 8^th June 2010; and Mr Rowley answered by submitting that it probably did. The Chairman then observed that he had suspected that this might be the case and that the panel would probably have to hear from Miss Price in a bit more detail. The potential importance of Miss Price’s evidence, from Miss McMillan’s standpoint was, of course, that she confirmed that, during the course of this latter conversation, Miss McMillan had made no reference to fundal pressure as a potential cause of the bleeding but had simply informed the patient and her family that there would be a full investigation in due course. If Miss McMillan had confined herself to remarks of this kind on this later occasion, that might be regarded as supporting her evidence that she had said much the same thing in the course of the earlier conversations on the previous day. But what weight should be given to Miss Price’s evidence would be a matter for the panel.

It was nonetheless contended on behalf of Miss McMillan that this exchange between the Chairman and Mr Rowley indicated that the Chairman could not have been fully aware of the documentation lodged in support of the appeal, as he claimed to have been. Certainly, the Chairman appeared to be familiar with what the witness had said in her statement, since he was clearly aware that she could give evidence about the discussion which took place on 9^th June 2010. In fact, or course, she confirmed in her oral evidence what she had already said, namely that the patient seemed perfectly alert and unsedated and that nothing that was said by Miss McMillan to the patient had caused her any concern.

For my part, I do not think it is appropriate to draw the inference that the Chairman or the other members of the panel had not read through the documentation. Though a suggestion to that effect was put to both Mr Drake and Miss Steele during the course of cross-examination, they would not accept it. But the documentation in question was extensive and I would not be unduly surprised if, at that stage, the members of the panel had not fully appreciated the precise significance, from Miss McMillan’s perspective, of each and every item of evidence. One of the principal purposes of the hearing was to allow any material points to be elicited in cross-examination and clarified in the course of submissions. For my part, therefore, I cannot accept the criticism.

But various further criticisms were made of the way in which Miss Price’s evidence was handled by the Chairman. After Mr Rowley had concluded his fairly brief cross-examination, Mr Drake himself asked a number of questions. The first of these, which he described as involving a “hypothetical situation”, arose from the fact that the patient’s partner, as it would seem, had raised the question with Miss McMillan during the course of her visit to see the patient on 9^th June 2010 as to what had caused the bleeding. The Chairman’s questions seem primarily to have been based on the evidence of Mrs Salt and Dr Brennan and were formulated, therefore, on the hypothetical assumption that the patient had or might have been told the previous day that the bleeding had been caused by pushing or pressure. On that assumption, he sought to elicit from the witness her view as to whether that would be inconsistent with what Miss McMillan had said to the patient and her family on 9^th June 2010, namely that bleeding of this kind was a rare occurrence and would be investigated. It was submitted on behalf of Miss McMillan that this was an entirely inappropriate line of questioning which would not have been permitted if the hearing had been conducted in the usual adversarial fashion. Furthermore, it is said that the questions were of a kind which were detrimental to Miss McMillan and showed that the Chairman was already contemplating an adverse finding of the kind subsequently set out at paragraphs 2.4.9 to 2.4.13 of the decision document. Furthermore, it was noted that no similar question was ever put to Miss McMillan.

I find it difficult to determine what the precise point of these questions may have been. But I agree that Mr Drake seemed to be seeking the witness’s opinion on a purely hypothetical question. I do not think that this was appropriate though ultimately it led nowhere. But, once again, I am not prepared to hold that this showed that the Chairman’s mind was already made up or that he was searching for reasons upon which findings adverse to Miss McMillan could be justified.

He does seem to have been concerned with the possible inconsistency between what Miss McMillan is alleged to have said to the family and to the patient the previous day and what she had said to them on 9^th June 2010, according to Miss Price. But I am not prepared to hold that in asking these questions Mr Drake was trying to do anything more than, in a somewhat clumsy fashion, seeking to see how far Ms Price’s evidence could be reconciled with the evidence of Dr Brennan and Mrs Salt. I can understand that his questions may well have appeared to have been somewhat slanted. But that, as it seems to me, was just the sort of problem that can arise when some form of inquisitorial exercise is being undertaken, as in the present case. For my part, therefore, given the nature of the procedure adopted by the panel, I do not think that these questions disclose any form of bias or partisanship.

Complaint is also made about the fact that, in its decision document, the panel turned Miss Price’s evidence that the patient’s father had asked about the cause of the bleeding against Miss McMillan. That is a point which is specifically raised in the context of the panel’s reasoning at paragraph 28 of the Amended Particulars of Claim, which is where I will deal with it.

Mr Anumba then asked whether the patient’s father had responded to Miss McMillan’s explanation by saying anything to the effect that she had told him the previous day that the bleeding had been caused by pushing. The witness’s answer was a firm negative. That evidence might well be regarded as supportive of Miss McMillan’s case. But, once again, it was a matter for the panel to decide what weight, if any, to give to it. Ms Price’s evidence concluded with some fairly inconclusive questions from both Mr Rowley and the panel.

The next witness was Theresa Hall, a midwife who was present at the caesarean delivery on 7^th June 2010 and who had apparently made a statement about the application of pressure by Dr Bhandare. Mr Rowley pointed out that she could confirm whether or not Miss McMillan seemed to have any concerns at the time. Otherwise, he accepted that she would probably not be a “vital” witness in that she could not assist in relation to the two specific charges. After some discussion as to whether her evidence could, therefore, be read, she was formally called to confirm her evidence and was briefly questioned by both Mr Rowley and by Miss Steele and the Chairman. She expressed the opinion that the pressure applied by Dr Bhandare seemed “a little excessive” and “quite forceful”.

Shortly before the lunch adjournment, there was some discussion between the Chairman and Mr Rowley as to the attendance of Dr Catto and the extent to which Mr Rowley accepted his evidence, in so far as it was included within the bundle, if it was not going to be challenged by cross-examination. The Chairman asked whether he agreed that the panel could “take on board” the investigation report and, it would seem, other documents in the bundle. Mr Rowley agreed, subject to the caveat that it must be read in conjunction with any additional witness statements and Miss McMillan’s detailed grounds of appeal.

This exchange was also the subject of criticism in Miss O’Rourke’s Schedule. It was suggested that Mr Rowley’s caveat was not, in fact, heeded by the panel, as, it was contended, it was apparent from the decision document itself. A particular reference was made to paragraph 3.5.2 of the decision to the effect that Kath Walsh’s evidence was included within the bundles prepared on behalf of Miss McMillan for the purpose of the appeal and was treated as unchallenged. However, as Miss O’Rourke’s Schedule points out, paragraphs 16 to 28 of the detailed grounds of appeal contended that no reliance could be placed upon her evidence. In so far as this criticism is directed to the decision-making process, as opposed to the procedure at the hearing, it arises, if at all, under paragraph 28 of the Amended Particulars of Claim and will be considered in its due place.

Dr Natanya Allen was the next witness to be called to give evidence, albeit by way of a telephone link. But, as I have previously observed, her evidence was wholly immaterial and nothing arises out of it.

After Dr Allen’s brief evidence had been concluded, the Chairman again asked about the status of the investigation report which had been included within the bundle. He commented that it was evidence of what the management’s case was, presumably at the earlier hearing, and that he considered that the panel was entitled to take its content into account in so far as it referred to the two specific charges against Miss McMillan. Mr Rowley’s response was that it would be acceptable, in his submission, for the panel to receive the report as setting out the basis of the findings made by the case manager in the course of the investigation, but not as evidence as to the truth of its contents. The Chairman indicated that he appreciated the distinction and appeared to accept it.

Once again, it is suggested in Miss O’Rourke’s Schedule that this exchange showed that the Chairman was not familiar with the contents of the detailed grounds of appeal which had raised concerns about the absence of a key document from the investigation report and that the promise of a “rehearing” in the exchange of correspondence in February 2012 was not being honoured. The “key document” would seem to have been the file note of the meeting between Dr Catto and the patient and her partner on 4^th October 2010. But this was now in the hands of Miss McMillan and her advisers and the evidence was being considered afresh. So I do not understand the continued significance of its omission from the original investigation report.

I am somewhat more sympathetic, however, to the proposition that this exchange illustrates some potential problems in the procedure which was in fact adopted. In the absence of a representative of management to present the case against Miss McMillan, as would have been the case if a fully adversarial procedure had been adopted, it would have been difficult for Mr Rowley to understand and try to meet the points which might be regarded as important by the panel when it came to consider the entirety of the extensive documentation which had been submitted for the purposes of the appeal.

There followed a discussion about the evidence of Alison Fuller. Her daughter had apparently been admitted to hospital that morning, so she was unable to attend in person. The question arose as to whether she could give evidence by telephone link, as in the case of Dr Allen, though this turned out to be impracticable. Mr Rowley indicated that her evidence was material from the standpoint of Miss McMillan, in so far as it showed that the enquiry conducted at the RCA on 1^st September 2010 did not consider anything which had occurred after the delivery of the baby on 7^th June 2010.

The discussion then returned to Dr Catto; and the Chairman referred to the earlier discussion about the status of the documents in the appeal bundle. He indicated that since Mr Rowley had accepted that a particular statement should be in the evidence before them, the panel would receive it in evidence. I am not entirely sure whether this was a reference to the file note of the meeting between the patient, her partner and Dr Catto on 4^th October 2010 or the statement of Alison Fuller or some other document. But it appears to have been assumed for the purposes of Miss O’Rourke’s Schedule that it was Alison Fuller’s statement. Be that as it may, the Chairman continued by stating that the panel would apply and attach to it whatever weight they thought appropriate; and he made it plain that Mr Rowley would be entitled to make whatever submissions he wished as to whether any part of it was disputed and what weight should be attached to it. He added that he would “formally record” that the statement would be admitted in evidence for the panel to consider. Mr Rowley made no objection and no further submissions on the point; on the contrary, the transcript gives the clear impression that he was content with what was proposed.

There was no criticism of the way in which the panel dealt with this point in Miss O’Rourke’s Schedule. However, in the course of final submissions, it was contended that the panel should not have proceeded in this way, that to have done so constituted a material irregularity in the conduct of the proceedings and that the appropriate course would have been for the panel wholly to ignore the evidence of the witness. Furthermore, it was pointed out that Ms Fuller was one of the witnesses referred to in Miss Steele’s letter of 16^th February 2012 who was to be asked to attend the hearing in order to give oral evidence.

The short answer to these objections is that the Trust cannot be blamed for Ms Fuller’s inability to attend on the day and that Mr Rowley did not object to the course proposed by the Chairman or seek an adjournment of the hearing to a date when she could attend. In any event, it is very far from apparent on the face of the transcript that Mr Rowley anticipated asking her about anything other than the limited scope of the RCA on 1^st September 2010. However, the point was raised in paragraph 28(b) of the Amended Particulars of Claim which, it will be recalled, sets out a number of criticisms of the reasoning and conclusions of the panel, as set out in its decision document, and I will have to return to the point when I deal with those allegations.

There followed a further discussion between the Chairman and Mr Rowley as to whether Dr Catto should be called to give evidence and be cross-examined. Mr Rowley referred to the file note of the meeting between Dr Catto, the patient and her partner on 4th October 2010 in which it was recorded that they could not remember Miss McMillan telling them that excessive fundal pressure had contributed to the problems but that they did recall that she had stated that an investigation into the causes would be necessary. Mr Rowley suggested that it might be necessary to ask Dr Catto to verify the contents and accuracy of the file note and to explain why it was not disclosed until a very late stage. The Chairman then asked whether Mr Rowley was suggesting that the file note was not a correct account. Mr Rowley did not directly answer, presumably for the very good reason that he wished to rely upon the file note rather than challenge it. But he accepted that, in reality, the only reason for wanting Dr Catto to attend would be to ask him why it had not been produced at an earlier stage.

It was at that point that the Chairman referred to the decision of the Court of Appeal in Whitbread & Co Plc v Mills, with which Mr Rowley was not, in fact, familiar. After some further exchanges, Mr Rowley effectively accepted the proposition that a rehearing would make it unnecessary to consider why the file note in question had not been produced at an earlier stage. But, he nonetheless suggested that when the panel came to consider the original management statement of case, it should bear in mind these procedural shortcomings.

But the Schedule prepared by Miss O’Rourke directed criticisms at two other matters which were raised during the course of this exchange. Just after referring to the case of Whitbread & Co Plc v Mills, Mr Drake made the following observations:

“What we must still do is concentrate on whether or not the evidence before us establishes the allegations that have been made or anything related to those allegations that would emerge as sub-allegations, as it were. For example, reference to the fact that one allegation concerns conflicting accounts surrounding the care of the patient when visited on 8 June and then there is a reference to discussion of her care with the family, now that is not 8 June, that is 9 June, it is effectively a sub-genus of that allegation. It does mean, it seems to me, that we are still in a position at this stage to say, let us concentrate on those, and let us see what the evidence tells you about that, and let us hear what evidence Miss McMillan would like to give us about that, about those two matters and then any evidence in support of that.”

There is nothing inappropriate about the Chairman’s observation that the panel should concentrate on the evidence before it in order to see whether the allegations had been made out. But it is not easy to understand precisely what he meant by the observations which followed. It seems likely, however, that he made a mistake as to the date or dates upon which the critical conversations were said to have taken place, as he appeared to accept when asked about this in cross-examination.

It is contended, however, on behalf of Miss McMillan that this passage shows a misunderstanding on the part of the Chairman which calls into question his overall grasp of the issues. But I cannot accept that. In a case such as this, with a number of witnesses and extensive documentation, a temporary confusion of the kind which may have affected the Chairman at this point does not justify any general inference of the kind contended for. I have no reason to think that this might have permeated or vitiated the subsequent deliberations of the panel.

But of potentially greater importance was the exchange which immediately followed. According to the transcript the Chairman then made the following observations:

“I say this with some care because I see that in the past, that certain of the witnesses that Miss McMillan has sought to rely upon are, to a large extent, character witnesses. I can understand why a professional person might feel the need to call such witnesses to support their creditable character which may be irrelevant to the issue of credibility if there is a conflict of evidence which is of such a stark nature that it demonstrates that there is the possibility of dishonesty being committed. It is more relevant to the issue of what the appropriate outcome should be were there to be a finding of misconduct.

I say that at this stage because, as I say, we still need to be concentrating on the two issues that are before us, and the witnesses can be, at this stage, confined to dealing with those two issues. Do you appreciate what I am saying here?”

Mr Rowley’s response was to point out that the nature of the testimony in question was of a somewhat unusual nature. It went to show that Miss McMillan was a particular type of person who would always speak her mind and who would always raise any concerns which she might have. The Chairman then observed that, if that was what the testimonial witnesses were intending to deal with, it was something which the panel had already appreciated from the evidence as it stood. He continued, however, by emphasising that he was not trying to limit Mr Rowley’s use of witnesses, since it was entirely up to him, but he was trying to make sure that the hearing stuck to the issues. Mr Rowley in turn said that he understood and agreed.

The main criticism of this exchange was by reference to the detailed grounds of appeal which in turn criticised the absence of any reference to character evidence in the decision of the original disciplinary panel. But it is also submitted that since the allegations against Miss McMillan raised issues of probity, propensity and good character, character evidence was of some potential importance for the resolution of the substantive issues.

As a matter of principle, it is quite clear that evidence of good character is both admissible and relevant in proceedings in which dishonesty or the like are alleged against a party. Such evidence goes to the likelihood that the individual in question would have acted in the manner alleged and is, therefore, relevant to the substantive issues and not merely to the question of sanction or punishment. In my judgment, the Chairman was wrong to make the observations which he did in the course of this exchange. However, that is not the end of the matter. I was not taken to any of the evidence of the character witnesses in question; but it seems from Mr Rowley’s explanation that they were directed to the particular point as to whether Miss McMillan was the sort of person who would always speak her mind. I have no reason to doubt that the Chairman was correct when he said that this was something which they had already come to appreciate from the evidence as it stood. Indeed, Dawn Wright herself had already made some observations to that effect in the course of her oral evidence.

So, even if the Chairman had positively ruled that no such evidence was admissible, I do not see that its exclusion would have prevented Mr Rowley from making the case which, it would seem, he wished to make. However, it does not appear from what followed that the Chairman was making any such ruling. On the contrary, he expressly stated that it was a matter for Mr Rowley to decide what witnesses to call. Furthermore, yet again, Mr Rowley did not object or challenge the indication given by the Chairman; indeed he referred to the statements of these character witnesses in the course of his closing submissions. So it is difficult to see how, from Mr Rowley’s standpoint, there was any unfairness in the approach adopted by the Chairman. In my judgment, therefore, there is ultimately nothing in the point.

By this stage, all of the witnesses whose evidence was apparently relied upon by the management, at least in so far as they were able to be present, had attended and given oral evidence. It was now, therefore, the turn of Miss McMillan to give evidence and to call any witnesses upon whose evidence she wished to rely. The first of these was Christine Baynham. The Chairman asked Mr Rowley whether he wished him to deal with Mrs Baynham in the same way as he had already dealt with the other witnesses; and Mr Rowley made no objection. Accordingly, Mr Drake asked her whether she wished to alter or add anything to her earlier statement, and whether she was content for it to stand as her evidence for the purposes of the appeal. She did, in fact, make two further observations. One, I think is immaterial. But the other was directed to precisely the point which Mr Rowley might have wished to elicit from the character witnesses. What she said was this:

“The other thing I do not really know why I did not sort of mention at the time, apart from it was sort of taken quite quickly before the previous hearing, is that about this fundal pressure which this case seemed to focus on, so about the degree of fundal pressure and whether it was excessive or not excessive. I was thinking to myself that, really, if anybody in that room had noticed excessive fundal pressure and would have spoken up about it, then Miss McMillan would have been the one to do it because if – I have been in with operations where she has felt that somebody has not done what she would expect at that time or how she would expect at that time and she would just said, “Nurse do it this way, you know, not that way”, sort of thing and that is the only thing I would add really.”

Before Mr Rowley asked any questions of the witness, the Chairman pointed out that they had her statement in front of them and that, unlike the previous witnesses, Mrs Baynham was his own witness, so he was not in a position to lead her evidence or ask questions, as he saw it, save to clarify any answers to questions which the panel raised. He then asked whether Mr Rowley would accept that approach. Mr Rowley was somewhat hesitant but did not dissent; and he went on to indicate that he wished to ask her about her discussion with Dawn Wright on the morning of 8^th June 2010 and, in particular, whether she was distressed to such an extent that she might not have accurately recalled what Miss McMillan had said to her. This, of course, arose out of a question which the Chairman himself had put to Dawn Wright earlier in the hearing; and the Chairman agreed that questions of that kind would be relevant and that he could pursue it.

The criticism which is made of this intervention by the Chairman was that he adopted an entirely different approach in dealing with Miss McMillan’s witnesses from that which he had taken when questioning those whose evidence was relied upon by the Trust. It is, of course, true that, on occasions, the Chairman had asked those witnesses questions of a leading nature; whereas he was clearly trying to keep Mr Rowley on a rather tighter leash. But the general forensic rule is that an advocate is not entitled to lead his own witness; and where witness statements have been prepared, submitted and verified, only limited additional oral evidence can normally be elicited without the permission of the Tribunal.

I can see why there may have been some disquiet about the contrast between his own approach to questioning witnesses and the more restrictive approach which he sought to impose on Mr Rowley. Furthermore, he undoubtedly asked a substantial number of questions during the course of the hearing, though that is not, in itself, a criticism which is made of him. But it seems to me that the way in which the Chairman dealt with these matters arose from the inquisitorial approach which the panel had decided to adopt. It is difficult to think that, if the case against Miss McMillan had been presented by a representative of the Trust’s management, the Chairman would not have treated both sides in the same way. But, in the absence of such a representative, the Chairman of the panel would clearly have had to take on at least some part of the role which the representative would otherwise have played. Furthermore, given the inquisitorial nature of the hearing, it seems to me to have been almost inevitable that Mr Drake and his fellow panel members would have wished to investigate any evidential matters which seemed to them to be important. For my part, therefore, I consider that this criticism is essentially directed to the form of procedure adopted by the panel and does not indicate any partisanship on the Chairman’s part.

There are further criticisms of the way in which the Chairman handled the evidence of Miss Baynham. It is suggested that Mr Rowley was discouraged from commenting on those parts of her statement which dealt with “testimonial matters”, with the Chairman pointing out that that was something which he could raise in submissions. I have already dealt with the question of testimonial evidence. But, in this case, it seems quite clear that the Chairman was inviting Mr Rowley, if necessary, to direct the panel’s attention to the relevant passages in Mrs Baynham’s witness statement in the course of his final submissions. Perhaps even more importantly, she had already given fairly eloquent testimony of the kind which Mr Rowley would no doubt have wished to elicit.

The final criticism of this part of the hearing was that there were repeated interruptions and interjections by the Chairman during Mr Rowley’s questioning of the witness. It is suggested that any questions should have been put to the witness after Mr Rowley had finished questioning her. What actually occurred, it was alleged, disrupted the flow of the evidence and gave rise to the appearance of bias. I do not propose to quote the entirety of this part of the transcript, which extends across some two and a half pages. There were a number of brief interventions by the Chairman; but, in my judgment, they were not in any sense disruptive and did not prevent Mr Rowley pursuing those matters which he felt it appropriate to raise with the witness.

Mr Anumba then asked several brief questions. One elicited evidence which could well be regarded as highly favourable to Miss McMillan. He referred to the fact that one of the midwives had suggested that Miss McMillan had told the patient’s family that excessive pressure had been used and he asked whether Miss McMillan had made any comment of that kind to her. The witness answered in the negative; and when Mr Anumba went on to ask whether she had ever expressed the opinion to her that what had occurred was a consequence of excessive pressure, she replied emphatically: “Never.”

The only other witness called on behalf of Miss McMillan was Gill Pownall whom Mr Rowley described as a “pivotal factual witness”. Immediately before she was called, Mr Rowley asked a question as to whether the panel was accepting the contents of the defence witnesses statements, save for any questions and clarifications that the members of the panel themselves might have asked. That question clearly reflected concerns which Mr Rowley had at the time; and, once again, I think it arises from the uncertainty resulting from the inquisitorial nature of the hearing. The Chairman’s reply was perfectly fair, given the procedure adopted though it did not necessarily assist Mr Rowley. What he said was this: “We are receiving them in evidence, but I cannot say we are necessarily accepting them, that is a qualitative decision we have to make at a later stage.”

When Mrs Pownall was called, she verified her witness statement in the usual way and was then questioned by Mr Rowley. He asked her about Dawn Wright’s demeanour on the morning of 8^th June 2010 and the witness replied that she was very distressed, very tearful and had serious concerns about what had happened. The predominant concern was about what she considered to have been the excessive fundal pressure applied by Dr Bhandare. She was asked whether Miss McMillan had joined the discussion; and the witness dealt with what was said during the course of the meeting involving herself, Miss McMillan, Yvonne Turford and Dawn Wright. She insisted that Miss McMillan had simply told Dawn Wright that there would be a full investigation in order to find out what had gone wrong, and did not express any views about Dawn Wright’s concerns.

Mr Rowley then went on to ask whether there was anything which had occurred after that meeting. Mrs Pownall started to refer to the fact that she had contacted Sue Speak, the supervisor of midwives; but she then hesitated and asked whether Mr Rowley was referring to what she described as “gossiping”. But the Chairman intervened at this point to say that this was in the statement but that he was not sure how it would help the panel to determine whether or not certain things were said to the patient or to the patient’s family or whether it had any bearing on what was said at the RCA. The only comment which Mr Rowley made at this stage was: “Well, Sir, yes, I agree.”

There was, in fact, no criticism of this exchange. However, after Mr Rowley had asked whether the witness was aware of the allegations against Miss McMillan, to which the answer, somewhat surprisingly perhaps, was in the negative, the Chairman intervened to ask what Mr Rowley had in mind at this stage. He went on to suggest that the appropriate thing to do was to find out what the witness could tell the hearing “about the events of such and such a date if she was present.” He went on to emphasise that he should first establish whether she was, in fact, present, because if Mr Rowley did not ask the question he would do so himself.

In the Schedule prepared by Miss O’Rourke, it was pointed out that there had never been any suggestion that Mrs Pownall was present during any exchange between Miss McMillan and the patient or her family. So, it was contended, the Chairman’s comment called into question his understanding of the documentation lodged before the hearing. Indeed, the criticism goes somewhat further, since it was suggested that it was “a cynical attempt (in advance) by the Chairman on the record to downplay the significance of the witness’s evidence before it was heard (on the basis she was not present – and in contrast to the fact that Dawn Wright was not present but was treated by the panel in its determination as a significant witness).”

This latter comment seems to me to be inappropriate and tendentious. It is, in effect, a direct allegation of bias which is wholly unjustified by the evidence. Nor do I consider that the Claimant’s intervention shows any invidious contrast between the treatment of Mrs Pownall and Dawn Wright. The potential significance of the latter’s evidence had already been demonstrated. Though she was not present at the meeting between Miss McMillan and members of the patient’s family in the early hours of 8^th June 2010, she had given evidence of what she claimed Miss McMillan herself had told her about what she had said to the family on that occasion.

As it seems to me, therefore, the only real criticism that can be made of the Chairman on this point is that he did not seem to have familiarised himself sufficiently with the documentary evidence to appreciate that Mrs Pownall had not been present at either of the conversations which Miss McMillan had already had either with the family or with the patient herself. An alternative interpretation is that he was attempting, albeit in a fairly forthright manner, to ascertain the relevance of Mrs Pownall’s evidence in the light of his earlier insistence that what the panel had to determine was what Miss McMillan actually said to the patient or her family.

In any event, Mr Rowley continued his questioning, asking the witness whether she had been aware of any discrepancy between what she herself had heard Miss McMillan say about these events on 8^th June 2010 and anything she said subsequently. The witness’s response was in the negative.

Mrs Pownall then went on to volunteer some evidence about the gossip amongst the midwives as to the use of excessive fundal pressure by Dr Bhandare, something which she considered unacceptable. That appears to have been a subject which she had already addressed in her witness statement. At this point the Chairman intervened and asked whether the gossip might have coloured her impression of anything that Miss McMillan had said or done in relation to her dealings with the patient, pointing out that one witness had said that she had used the word “pressure” and another that she had used the word “pushing”. Perhaps unsurprisingly, the witness seems somewhat bemused by these questions, which still seem to have been based on the assumption that she had been present when Miss McMillan went to visit the patient on the morning of 8^th June 2010. Perhaps realising this, the Chairman asked directly whether she had been present on that occasion; and the witness made it clear that she had not.

The witness then referred to a meeting which she had had on that same morning with Dawn Wright, insisting that, at least on that occasion, fundal pressure was not mentioned as a possible cause of what subsequently happened. She had dealt with the shop floor gossip by emphasising that there would be an investigation. Mr Anumba then asked a question, as to whether the patient’s family might have got wind of the general gossip that fundal pressure might have caused or contributed to the incident. The witness said she hoped not and that she would have been surprised if that had occurred, since the patient had been transferred to the intensive care unit and was not, therefore, on the labour ward after the splenectomy.

The Chairman again intervened and asked whether she thought it would be more or less likely that the family would have heard gossip of this kind. He went on to point out that one thing that was puzzling was that somebody in the family had asked a question as to whether the incident had occurred because of pressure and that the panel was keen to ascertain how that might have been planted in his mind. The witness responded by saying that it was an unusual question. But she obviously found it difficult to express any opinion on it without further details. That is not surprising. It was at this point that Mr Rowley intervened and explained that it was the patient’s father who had asked the question of Miss McMillan when she met members of the family in the early hours of 8^th June 2010. He had not been present during the delivery of the baby. But there had previously been some sort of discussion on the topic between Dawn Wright and the her partner. The witness then said that she assumed that the midwife had told the family member that fundal pressure was a normal part of delivery by caesarean section. She went on to explain the procedure in a little more detail.

The Chairman then intervened once again and asked the following question:

“You see, one inference that may be drawn is that the reason why a member of the family, a total lay person might raise the question, “Was it the pressure?” was because somebody had said something. I think what we have been invited, in a sense, implicitly to infer is that it may well have been Miss McMillan who communicated that point of view. Can you help us with that in any way? Do you think that is possible?”

The witness responded by saying that she thought that it would have been very foolish for anyone to have said that it was excessive fundal pressure which caused the splenectomy. The most that a staff member would be likely to say is that there would be an investigation; categorical comments of this kind prior to such an investigation would be foolhardy. Mr Rowley then asked whether she could imagine Miss McMillan ever saying anything of that kind; and the witness’s answer was that she could not imagine even a junior midwife, let alone a senior consultant, wishing to do so.

Mr Rowley then asked some further questions about the gossip within the department about Dr Bhandare. Indeed, Mrs Pownall said that she herself had raised questions as to his capability with Miss McMillan herself and various other consultants. Finally, Mr Rowley briefly asked her about the RCA itself. The witness confirmed that there had never been any discussion about what Miss McMillan might have said to either the patient or any of the patient’s family. For the most part, it involved a very heated discussion between Dr Bhandare and “a very distressed midwife”, presumably Dawn Wright.

These exchanges were the subject of further criticism in the Schedule prepared by Miss O’Rourke. The first complaint was that the Chairman interrupted Mr Rowley before he had concluded his examination of the witness and before he was able to complete his investigation of the extent of the gossip on the labour ward and its potential consequences. A further comment is made to the effect that Mr Rowley had not been allowed to explore this area with Dawn Wright during the course of her evidence.

But in my judgment, this complaint is simply not made out. I have already tried to analyse how Dawn Wright’s evidence was handled during the course of the hearing; and it does not seem to me that Mr Rowley was, in fact, prevented from exploring these matters. Furthermore, Mrs Pownall herself raised the question of gossip during the course of her oral evidence; and it would seem that this must have been dealt with in her witness statement.

As Mr Rowley had explained at the time when Dawn Wright was giving evidence, it was Miss McMillan’s case that this gossip had permeated both the labour ward and the intensive care unit and was likely to have influenced the perceptions of other witnesses. Any questions to Mrs Pownall intended to support this case are likely to have been fairly speculative. But, at least to some extent, it was picked up by Mr Anumba when he asked about the possible impact on the family. I do not consider that it is fair to say that the Chairman interrupted Mr Rowley’s questions on this topic. Furthermore, one might have thought that the obvious witnesses to whom questions of that kind could properly have been put were Dawn Wright herself, Dr Brennan and Mrs Salt, rather than Mrs Pownall.

A connected criticism is that the Chairman prevented Mr Rowley from exploring with the witness Miss McMillan’s case that it was Dawn Wright herself who was responsible for the gossip. That was a matter which was raised within the detailed grounds of appeal but had never been put to Dawn Wright. I cannot see anything in the criticism.

The next complaint has, I think, somewhat more substance to it. As previously observed, the Chairman did not appear to have understood, at least initially, that Mrs Pownall was not present at the discussion between Miss McMillan and the patient on 8^th June 2010 and may not have appreciated the potential relevance of her evidence from Miss McMillan’s standpoint. That is somewhat worrying, though Mr Rowley had ample opportunity to deal with it, either during cross-examination or in closing submissions. Furthermore, the Chairman and his colleagues would presumably have considered the totality of the evidence, including Mrs Pownall’s witness statement, before coming to its final conclusions. I do not agree, as is alleged, that this was an attempt to “downgrade her evidence” on the basis that she was not personally present during the conversations between Miss McMillan, the patient and her family.

The final criticism as to the way in which Mrs Pownall’s evidence was handled is also a matter which gives rise to some concern. I refer to the rather odd question which the Chairman put to Mrs Pownall about the possibility that it was Miss McMillan herself who had put the idea that fundal pressure was a causative factor into the heads of the patient’s family. He appears to have overlooked the admission by Dawn Wright that she had had a discussion on the topic of fundal pressure with a member of the family before Miss McMillan ever spoke to them. But Mr Rowley, of course, explained this point in some detail after the question had been posed. Furthermore, it is not apparent to me what the basis was of the Chairman’s observation that the panel might be asked to infer that it was Miss McMillan who had planted the idea or, for that matter, when she might have done so. But, if this was a matter of concern to the Chairman, whether based on a misunderstanding or not, he cannot fairly be criticised for raising it, given the inquisitorial nature of the process adopted, so that Mr Rowley could, if necessary, deal with it, either then or in closing submissions.

This particular exchange is not specifically relied upon in the summary of the Schedule of complaints as evidence of bias or apparent bias. But it is suggested that it involved a misapplication of the burden of proof, since the point had not, in fact, been specifically raised by the management. For my part, I do not consider that it would justify any inference of bias on the part of the Chairman or that it would give the appearance of bias. Once again, I think it is an artefact of the inquisitorial process which the panel had chosen to follow. In the absence of a representative of management to present the case against Miss McMillan, the panel itself, primarily through its Chairman, had to examine anything which, at the time, might have seemed to them to have been relevant. So, despite the apparent misunderstanding on the part of the Chairman and the somewhat odd nature of the question which he posed, I do not consider that the criticism of his conduct, as set out in the Schedule, is made out.

There followed a brief discussion between Mr Rowley and the Chairman as to the possibility of a further witness being called, namely Sue Speak. Her evidence was potentially relevant, suggested Mr Rowley, in relation to the discussions which she had had with Dawn Wright on the morning of 8^th June 2010 and to what occurred at the RCA. However, in the light of the evidence already given, including that of Mrs Pownall, he indicated that he was inclined to release Mrs Speak, if the panel was happy about it. The Chairman’s response was that if he needed time, he would be given it. But, after a brief discussion with his client, Mr Rowley indicated that he considered it had already been made clear by other witnesses that communications between the patient and Miss McMillan had not featured in the RCA and that he would make submissions about the significance of the point in due course. Accordingly, he proposed to move straight on to the evidence of Miss McMillan.

There was then some reference to the two statements of Miss McMillan which were before the panel as well as the detailed statement of the grounds of appeal before Miss McMillan herself was called to give evidence. In this case, Mr Rowley himself started to question her without any introduction by the Chairman or any formal confirmation of her witness statements. The record of her oral evidence extends over some 20 pages of the transcript. The first three pages are devoted to her evidence about the procedure itself, during which she emphasised that she had no inkling that there was going to be any problem with the patient. She was then asked about the conversation which she had with the members of the family in the early hours of 8^th June 2010; and she referred to her shock when her father asked whether the bleeding had been caused by the pressure required to deliver the baby. This was highly unusual and made her think that somebody had said something to them about this. She observed that Dawn Wright had eventually accepted that she had had some sort of discussion with them about fundal pressure. She was firm in her evidence that all she had said was that she had no idea what had caused the bleeding, that there would be an investigation in due course and that the patient and her partner would be informed about the outcome.

Mr Rowley then asked about her visit to the patient’s bedside at about 8 o’clock the same morning. According to Miss McMillan, she recognised who she was, and nodded at some of the things she said to her and seemed to be understanding what was said. However, as she had already stated in her witness statement, she did not recall actually debriefing the patient on that occasion. That occurred in the early afternoon of the following day. Once again, she insisted that she had never at any stage told the family or the patient that she thought that the bleeding and consequent splenectomy were the result of fundal pressure. She still did not really know what the cause was.

Mr Rowley then took her back to her visit to the patient on the morning of 8^th June 2010 and referred to the difference between the recollection of Dr Brennan and Mrs Salt as to the precise words which she was said to have used. He then asked her what she herself recalled saying to the patient. Her answer was that she had explained to her that she had had her spleen removed and that the bleeding had stopped. She then seemed to be a little confused as to whether this occurred on 8^th June or the following day. The Chairman seems to have thought that she had “skirted over” the issue in her initial response; and he pressed her to tell the panel what she said she had said to the patient.

At that point, however, the witness referred to the earlier conversation with the patient’s family during which she had been asked about the pressure applied by Dr Bhandare and went on to say that she had told the patient about that conversation. She thought that this was in the presence of Mrs Salt and Dr Brennan, because she thought she had said this to the patient on both occasions, presumably on 8^th June 2010 and again on the following day. She said she did not think it was right to go into a lengthy explanation on 8^th June 2010, as the patient was unable to speak, though she briefly explained about the splenectomy, and told her that the bleeding had stopped and that her condition was stable. But she did explain to her what she had already told her relatives, because she considered that this was her responsibility as the lead consultant.

The Chairman once again pressed her as to what she had to say about the accounts given by Dr Brennan and Mrs Salt. The witness expressed the opinion that their version of events had been affected by what they had already heard, since some people thought that the incident had been caused by fundal pressure. But she herself would not necessarily know precisely what they had been told. However, she pointed out that, from statements which had been made during the course of the investigation and from the evidence on Mrs Salt on the last occasion, Mrs Salt may have learned about this on handover.

At this point the Chairman intervened to remind Mr Rowley that he was getting close to leading the witness, but he went on to say that he would allow a certain amount of latitude. The witness then went on to point out that she had made a record in the notes of what she had said and done, including details of the patient’s condition. This was, I think, intended to demonstrate that Mrs Salt had been mistaken in certain of her evidence. But the Chairman again returned to the question that he had previously posed and asked whether it was her evidence today that she had never said what Mrs Salt and Dr Brennan alleged that she had said. Her response was that, in the light of what she said she had told the patient about the question asked by the patient’s father earlier that day, they might have misunderstood what she had said. She explained that the father was, in fact, present not only at the meeting in the early hours of 8^th June 2010 but also on the occasion of her visit to the patient on the early afternoon of 9^th June 2010.

There are a number of criticisms of the conduct of the hearing during this part of Miss McMillan’s evidence. It is suggested that the Chairman was wrong to interrupt Mr Rowley and press the witness to tell the panel specifically what she said she had told to the patient on 8^th June 2010. This, it was contended, was something that should have been done, if at all, by a representative of the management during the course of the presentation of the case. By contrast, it is also suggested that he did not challenge Miss McMillan’s evidence in other respects, even though the panel made adverse findings about such matters in their decision document.

In principle, however, it seems to me that the Chairman was entirely correct in insisting that the witness give a direct answer to the question as to what she said she had told the witness. I can well see that this might be seen as descending into the arena. But that was, once again, a consequence of the procedure adopted. There is also some force in the criticism that, on this and on other occasions, neither the management case nor other matters on which adverse findings were ultimately made were ever clearly and squarely put to Miss McMillan. Once again, I consider that this is an almost inevitable consequence of the inquisitorial procedure adopted by the panel. It rather seems that, whatever course the Chairman took, whether to challenge the witness or not, he was liable to be criticised.

Further criticism is made about the fact that the Chairman again returned to the question as to what the witness herself said she had said to the patient at a time when, it was suggested, Mr Rowley might have wished to pursue the different question as to whether any of the other witnesses might have been affected by departmental gossip. In Miss O’Rourke’s Schedule, this is referred to as a “cornerstone” of the appeal. But I do not get any impression from the transcript that Mr Rowley was cut off or prevented from pursuing the point. Indeed, the witness had already expressed her belief that Dr Brennan and Mrs Salt might have been influenced by what they had heard from others. At least up until the point when the Chairman had first asked the witness what she said she had said to the patient, Mr Rowley, as it seems to me, had been given an entirely free run in questioning his client.

Mr Rowley then moved on to ask Miss McMillan about the conversation which she had had with Dawn Wright, in the presence of Mrs Pownall and Yvonne Turford. She was allowed to give this evidence without any interruption from the panel; and she made it clear that, though she told Dawn Wright that she had discussed the situation with the family, she had never told her or them that it was or may have been caused by pressure. She explained that Dawn Wright had formed that view from a very early stage and was looking to Miss McMillan to agree with her opinion, which she was not prepared to do.

Mr Rowley then turned to the RCA meeting on 1^st September 2010. Once again, Miss McMillan was allowed to give her evidence without any form of interruption. She was also asked about the possible link between pressure and bleeding, to which she replied that there was none so far as she knew. The Chairman did briefly intervene shortly before Mr Rowley concluded his questioning to ask her what she had actually said during the RCA. She repeated that, as had been documented, she had said something to the effect that: “If I had had concerns about fundal pressure I would have said so at the time, I didn’t have any concerns at the time and I do not have any now.”

There was no complaint about the way in which this part of Miss McMillan’s evidence was handled. At this point, however, after a short adjournment, further questions were put to Miss McMillan by the panel, almost entirely through Mr Drake. He asked the witness about certain things she had said during the course of the original disciplinary hearing about the initial discussions with the patient’s family, her subsequent conversation with Dawn Wright and her visit to the patient on 8^th June 2010.

In conclusion, the Chairman emphasised that what the panel would have to determine was whether the evidence of the witnesses demonstrated that there was some difference between what Miss McMillan had said to the patient, what she had said to the family and what she had said at the RCA. He asked Miss McMillan whether she had any further thoughts which might help them to resolve the issue as to whether or not there was a conflict. In her response, she emphasised that she had long experience at communicating with families and explaining to them in simple terms what had occurred. She made once again what might well have seemed a very good point, namely that, if she had told the patient’s family that the incident which had nearly led to the patient’s death was all “down to fundal pressure” that would have been the only thing that they would have remembered. Yet the patient and her husband could not recall anything of that kind when they met Dr Catto on 4^th October 2010.

There are a number of criticisms of the conduct of this part of the hearing in the Schedule prepared by Miss O’Rourke. It was suggested that the Chairman and the other members of the panel had misunderstood the nature of Miss McMillan’s case, in that she had always acknowledged that fundal pressure might have been one of a number of potential causes of the bleeding; and it is suggested that this misunderstanding was carried forward into the panel’s deliberations and decision document. Certainly, at paragraph 91 of her witness statement of 4^th November 2011, Miss McMillan had said that, having looked into the possible causes of the bleeding, she was willing to accept that this could be caused by raised pressure within the abdomen, which might not, however, necessarily be caused by externally applied fundal pressure. But I have read through the transcript and do not see any obvious basis for this particular criticism, however the point was ultimately dealt with in the decision document.

It is also contended that the Chairman did not challenge Miss McMillen as to the difference between the words “pressure” and “pushing” which, it was suggested, could convey markedly different meanings in the context of a discussion about delivery by caesarean section. This, it was suggested, demonstrated a partisan approach to her evidence. It was also suggested that the panel overlooked the inconsistencies between the evidence of Dr Brennan and Mrs Salt in the reasoning set out in the decision document. So far as the hearing is concerned, it may well be correct that the particular point was not investigated by the Chairman, though Miss McMillan herself had commented about pressure and pushing at an earlier stage of her evidence whilst being questioned by Mr Rowley.

For my part, I am not at all sure how significant the distinction might be thought to have been; but the panel included a member who would no doubt have had sufficient expertise to assist the other members on the point. Any failure to ask Miss McMillan about it during the course of the hearing yet again illustrates, as it seems to me, the potential confusion caused by the inquisitorial procedure adopted by the panel. If the case had been presented by a member of the management of the Trust, he or she would no doubt have questioned Miss McMillan about the point if it had been considered to be of any importance.

A similar criticism is made about the failure of the panel to give Miss McMillan the opportunity to respond to the suggestion that she had fabricated details of the conversation with the patient’s family in the early hours of 8^th June 2010, even though this appears to have underpinned the findings made by the panel at paragraphs 2.4.9 to 2.4.14 of the decision document. In so far as that is the correct interpretation to be placed upon these paragraphs, it seems to me that failure to put the point fairly and squarely to Miss McMillan during the course of her evidence was a serious omission. At the risk of repeating myself, however, it seems to me that this is yet another instance of the problems arising from the procedure which the panel had chosen to adopt. Other similar criticisms are made in the same section of the Schedule; and my previous observations would apply equally to them.

There were two further specific criticisms of the way in which this part of the appeal hearing was conducted. It was suggested that the general question put to Miss McMillan towards the very end of her evidence was far too vague and wide-ranging to enable her to respond meaningfully and that the Chairman should have put to her any points which were subsequently relied upon by the panel in its decision letter. For my part, I do not see any problem with the way the question itself was formulated. But, for reasons which I have already given, I think that some important points which should have been put to the witness were not, in fact, put to her, but that this was largely attributable to the procedure adopted by the panel.

It is also suggested that the panel disregarded the final point which Miss McMillan made, to the effect that the family would undoubtedly have remembered what she had said if she had told them that the cause of this serious incident was the fundal pressure applied by Dr Bhandare. I accept that this was not specifically referred to by the panel in its decision document. But I cannot infer that this was the result of bias or partisanship as suggested in Miss O’Rourke’s Schedule. The weight to be given to that particular point, as with all the other evidence and arguments before it, was a matter for the panel alone.

Miss McMillan’s evidence concluded with some further brief questions from Mr Rowley. He returned to what he preferred to call any possible “variation” between what she had said to the patient and her family and at the RCA. Miss McMillan repeated that she had always said that she had had no concerns about fundal pressure and that she still did not have any such concerns; and she had never said anything to the contrary to the patient or her family, though she had answered their questions when the point was raised. She did not consider that they could properly have obtained the impression that she thought that the incident had been caused by fundal pressure; and people who had overheard parts of various conversations had got the wrong end of the stick and thought that she had said things that were in conflict when she had not.

There was then a brief discussion as to whether Dr Catto should be called; and he eventually gave brief oral evidence and was questioned by the Chairman. The only point that the Chairman wished to raised was whether there was any other documentation which ought to have been produced to the panel; and Mr Rowley emphasised the need for him to confirm the contents of the file note of the meeting on 4^th October 2010. Mr Rowley also objected to the inclusion of additional documentary material dealing with the effect of sedative medication on a patient’s memory. Nothing, as it seems to me, turns upon this passage in the transcript.

However, there was criticism of a brief exchange between Mr Rowley and the Chairman just before Dr Catto was called, after the Chairman had indicated that he would wish to move on to submissions after the conclusion of the evidence. Mr Drake pointed out that they already had quite extensive argument on behalf of Miss McMillan in the form of the detailed grounds of appeal; and Mr Rowley responded by accepting that, in the circumstances, he could probably cut short his submissions on points which were set out in that document and confine them more to what had occurred during the course of the hearing. The Chairman emphasised that this was a matter for him, but that the panel already had “a very comprehensive idea” of Mr Rowley’s position, why he sought to attack certain evidence and his arguments as to why they should not reach certain conclusions. But he insisted that the panel had to look at the evidence and ask what did it actually prove.

It is suggested in the Schedule that this reassurance led Mr Rowley to believe that he did not need to address various matters, either with Dr Catto or, it would seem, in his submissions. It was suggested that he might have wished to pursue with Dr Catto some aspects of the investigation report. But, for my part, I do not see how this is likely to have been relevant to the issues which had to be resolved on appeal. As far as submissions were concerned, Mr Rowley would clearly be entitled to put forward whatever arguments he felt appropriate, subject to the control of the panel, taking account of what he felt would be the likely impact of his submissions. But, as will be seen, I do not see that he was prevented from doing so.

The Chairman then invited Mr Rowley to make his submissions to the panel. I have worked through what he had to say and I am quite satisfied that he was given an entirely free reign by the Chairman to put his client’s case as he saw fit. In fact, it seems to me that he presented the case very clearly and economically.

He started by pointing out that the charges involved allegations of a lack of honesty and probity on which the burden of proof did not lie upon Miss McMillan. He referred to her background and career and to the testimonial evidence which was before the panel and which, he submitted, was relevant to the question whether it was likely that Miss McMillan had provided conflicting accounts or had been dishonest.

He then briefly dealt with the discussion with the family in the early hours of 8^th June 2010 before moving on to the important issue as to what was said during the course of visit which Miss McMillan had made to the patient at about 8 o’clock in the morning. He emphasised the fact that the two witnesses on whose evidence the management case was based appeared to recall different words having been used; and he pointed out that neither of them had been direct participants in the conversation. He submitted that the reality of the situation was that concerns about the fundal pressure applied by Dr Bhandare had somehow filtered through to the witnesses, whether by reason of inappropriate gossip amongst the midwives or otherwise and had influenced what they thought they had heard.

Mr Rowley then returned once again to the different recollections of Dr Brennan and Mrs Salt as to the precise terminology said to have been used; and there was an exchange between himself and the Chairman as to the significance of the distinction. This led on to an argument advanced by Mr Rowley based upon Miss McMillan’s evidence that she had told the patient about the question she had been asked by the family member when she had met them in the early hours of the same morning. He suggested that Dr Brennan and Mrs Salt may have misheard or misinterpreted what Miss McMillan had said to the patient on the point. It is fair to say that the Chairman expressed some puzzlement as to why she should have said anything of this kind to the patient, which Mr Rowley explained would have been the result of her obligations as lead consultant.

Mr Rowley then pointed out that, by the time of her visit to the patient in the intensive care unit, Miss McMillan would have been none the wiser about what had happened or its causes; so it was most unlikely that she would have had anything more than a brief discussion with the patient beyond trying to reassure her.

He then referred to the further visit which Miss McMillan made to the patient on 9^th June 2010, during which it had never been suggested that she had said anything to the effect that fundal pressure had or might have been the cause of the incident. She had simply informed the patient and her family that there would have to be an investigation in due course. Mr Rowley submitted that this corroborated what she said she had said on other occasions. He then returned yet again to the evidence of Dr Brennan and Mrs Salt, suggesting once more that what they thought they had heard had been influenced by the rumours or gossip circulating within the department. He again emphasised the distinction between the words used, as recollected by each of the two witnesses, and reminded the panel of the difficulties which anyone is likely to have in recalling precisely what might have been said during the course of some oral exchanges many months before.

He went on to submit out that all of this should have been ventilated during the RCA meeting on 1^st September 2010. But this did not consider any matters arising after the apparently successful delivery of the baby. He reminded the panel of the evidence of Mrs Pownall who said she could not envisage even a junior midwife proffering any views of this kind, and to Miss McMillan’s forceful point that, if she had said what she was alleged to have said to the patient’s partner, that would have been one thing which would have stuck out in the family’s memory. And yet, according to the file note of Dr Catto’s meeting with the patient and her partner on 4^th October 2010, they could recall nothing of the kind. What they did say was entirely consistent with Miss McMillan’s own evidence.

He concluded by submitting that there was simply insufficient evidence to support a finding that what Miss McMillan had said at any stage was misleading or dishonest. He pointed out that it was, in fact, Miss McMillan herself who had reported the incident on 8^th June and had requested that it be investigated. Why would she have done so, he asked, if she had done something which she ought not to have done?

What is of some interest is that Mr Rowley did not make any submissions which were specifically directed to Dawn Wright’s evidence, though she was a witness whom he described more than once as “pivotal”. That may well reflect the fact that he had not pursued all the points which he had planned to put to her when she gave oral evidence before the panel. It may well be the case, as he himself said, that he felt under some pressure from the Chairman to focus specifically upon the evidence of what Miss McMillan had or had not said in the course of her discussions with the patient’s family and with the patient herself. But, as I have previously sought to make plain, I do not consider that the transcript supports the proposition that his cross-examination of the witness was unfairly curtailed. It was a matter for him as to whether he wished to pursue the case which he outlined to the panel during the hearing or to address the panel about her evidence and its significance in his closing submissions. But, of course, the panel would or should have been aware of what had been said about her evidence in the detailed grounds of appeal.

There were a number of criticisms of the Chairman’s conduct during the course of submissions in the Schedule prepared by Miss O’Rourke. They are, largely if not entirely in effect, directed to the reasoning ultimately adopted by the panel in its decision document. In so far as they reflect Miss McMillan’s case, therefore, it seems to me that I should address them in the next section of this judgment.

Before leaving the transcript, I should, however, refer to the exchange which took place at the very end of the hearing. After a short adjournment, the Chairman referred to the possibility that there would have to be a resumption of the hearing, depending upon the panel’s findings, in order to determine what the appropriate sanction should be. He made it clear that, whilst this could be dealt with on paper, he would not want to bar any party from making oral submissions at a hearing. He then went on to ask the following question:

“I have one question, however, to raise and it is this, and it is quite deliberate but meant to be a meaningful question, and that is this. I would like to understand from you and I would like to know from you on the record now whether you are satisfied that the conduct by us at this hearing today is reasonable and, so far as you are concerned – though you reserve your position with regard to what the outcome is – whether you are satisfied that procedurally it is unimpeachable and has been reasonable?”

Mr Rowley’s response was as follows:

“Sir, I can address the second of those with no hesitation whatsoever which is that, with respect, I think the manner in which you have conducted the proceedings today has been extremely professional, it has expedited your consideration, so I have no issue at all with the way in which you, as a Panel, have heard the case.”

However, he did go on to refer to some anxiety which he felt, but which he acknowledged might have been entirely unjustified, about the fact that, as a result of what he described as the “very constructive discussion about honing down the allegations”, he and Miss McMillan’s team had had to shift their position entirely, so as to eliminate the vast majority of the issues which had been ventilated at the earlier hearing. He continued by pointing out that, until the hearing commenced, and the Chairman outlined the manner in which he wished to conduct the appeal, he and his client would not have known the precise format of the appeal, and that if they had done so, it might have affected the manner in which materials were submitted to the panel. The Chairman responded by observing that, in so far as what had happened had meant that Mr Rowley had been able to “cut down”, he would not have thought that he would have been in any way disadvantaged and certainly not prejudiced. The panel was the arbiter of the appeal, not the management of the Trust. Mr Rowley concluded by saying that he understood and thanked the panel for the time they had given to the appeal and also the manner in which they had approached it.

Having examined the transcript in some detail, I have come to the clear conclusion that it does not justify the criticisms which were levelled at the panel and the Chairman in particular. I do not doubt that some of the interventions made by the Chairman meant that Mr Rowley had to reassess his approach to the issues and to the evidence; and he may well have felt under pressure from an experienced and assertive Chairman. But I can see no evidence of any improper pressure or any unfair limitation of the scope of his questioning or his submissions.

At least some of the criticisms made in Miss O’Rourke’s Schedule were, however, justified to a greater or lesser extent. But, in very large measure they those seem to me to have been the almost inevitable consequence of the form of procedure adopted by the panel, though, for present purposes, I assume that they were fully entitled to adopt a procedure of that kind. There were also one or two occasions where the Chairman seemed to have misunderstood the written evidence before the panel or its potential significance. But those do not seem to me to have vitiated the entire hearing or to have subverted its purpose. Furthermore, on every occasion of which a complaint is now made, Mr Rowley had the opportunity to object, explain or correct any intervention or misapprehension by the Chairman. And to some extent he did so. In so far as he failed to respond to any of the matters which are now the subject of criticism, it seems to me that he must effectively have waived them.

Whatever shortcoming or infelicities there may have been in the way in which the appeal was conducted, there is certainly, in my judgment, no sufficient basis for concluding that it was so unfair as, in some way, to vitiate or subvert the entire appeal process. Nor is there, in my judgment, anything which would justify an inference of actual bias on the part of the Chairman or any other members of the panel or, indeed, give the appearance of any such bias.

At paragraph 28 of the Amended Particulars of Claim, a number of specific criticisms are made to the findings of the panel as set out in its decision document which are said to have demonstrated a breach of Miss McMillan’s contractual rights and amount to “apparent if not actual bias” on the part of the author. The principal author was, in fact, Miss Steele, though there was substantial input, it would seem, from Mr Drake. But I was told, and I accept, that it embodied the views of the entire panel.

Miss Steele herself emphasised in re-examination the fundamental importance for the conclusions which the panel reached of the evidence of Dr Brennan and Mrs Salt who seemed to them to be very credible witnesses; and she said that also they gave a “fair weighting” to the evidence of Dawn Wright. But I do not regard it as part of my function to carry out any form of critical assessment of the panel’s reasoning process or its conclusions. I am not hearing an appeal from the decision. The only real question, as it seems to me, is whether the way in which the panel expressed itself or the conclusions which they reached justify an inference of bias or give the appearance of bias; and in approaching it on that basis, I think it is important to adhere strictly to the specific allegations set out at paragraph 28 of the Amended Particulars of Claim.

Sub-paragraph (a) of paragraph 28 addresses the way in which the appeal panel handled certain evidence about the statement made by the patient herself and her partner on 4^th October 2010 as to what they had been told by Miss McMillan. It will be recalled that it was the Trust’s case that Miss McMillan had spoken to members of the patient’s family in the early hours of 8^th June 2010 and had seen the patient herself at about 8am on the same morning. On both occasions it was alleged that she had said something to the effect that the bleeding which had led to the splenectomy had been caused by the pressure applied by Dr Bhandare during the course of the caesarean procedure. Miss McMillan, on the other hand, denied that she had said anything of this kind to the patient or members of her family and that her response to any inquiry in the immediate aftermath of the incident was to the effect that there would be an inquiry in due course which would consider all possible causes.

Unsurprisingly, the patient herself was not called to give evidence during either the original disciplinary hearing or on the appeal. However, she and her partner had a meeting with Dr Catto on 4^th October 2010 during which it seems that she was specifically asked by Dr Catto about any discussions she might have had with Miss McMillan. A file note of this meeting was very belatedly disclosed to Miss McMillan and her advisers in which the relevant passage is recorded in these terms:

“AJC also asked the couple whether at any time Liz McMillan had told them that excessive fundal pressure had contributed to the sequence of events. They did not recall any such discussion but did state that Liz intimated an investigation into the cause would be necessary.”

But, though the panel referred to this passage in the file note at paragraph 2.4.3 of its decision document, it incorrectly recorded that the patient had told Dr Catto that she did not recall the conversation with Miss McMillan “because she was still sedated at the time”. That is the point which is specifically raised and criticised at sub-paragraph (a) of paragraph 28 of the Amended Particulars of Claim.

It seems quite clear that the panel fell into error on this particular point. On the face of it, the statement made by the patient and her partner in the course of the meeting with Dr Catto on 4^th October 2010 would have provided important support for Miss McMillan’s version of events. But the panel was faced with a conflict of evidence as to what had been said which they had to resolve to the best of their ability; and they preferred the evidence of Dawn Wright, Dr Brennan and Mrs Salt, despite some differences in the details of the accounts given by the latter two witnesses.

As I have emphasised more than once, it is no part of my function to decide whether they were right or wrong to do so or whether a differently constituted panel would have come to a different conclusion. Nor is it for me to determine whether, even without the erroneous reference to the record of the meeting on 4^th October 2010, the panel were or might have been entitled to infer that the patient might have had difficulty in recalling precisely what was said to her because she was still sedated. The question for me is purely whether this inaccurate reference to the record of the meeting constitutes evidence of actual or apparent bias. In my judgment, it comes nowhere near doing so. On the face of it, it is no more than a factual error. I could not possibly infer that it was a deliberate mis-statement of the true position; nor could I infer actual bias on the basis of this evidence, either standing alone or in combination with the other allegations made against the panel; nor, in my judgment, could this error fairly be regard as creating the impression of bias.

At paragraph 28(b) of the Amended Particulars of Claim, it is alleged that the panel made findings adverse to Miss McMillan in respect of her participation at the RCA on 1^st September 2010 though Alison Fuller did not attend to give evidence before the panel, and though the accounts which she had previously given about that meeting were consistent with the evidence which Miss McMillan herself gave at the appeal hearing.

I find it difficult to discern any substance in this point. As I have already pointed out, it was no fault of the Trust or the appeal panel that Ms Fuller was unable to attend; and Mr Rowley did not ask for an adjournment to enable her to do so. Furthermore, there appears to have been no real issue as to what Miss McMillen herself had said at the RCA. Indeed, during the course of her oral evidence, she repeated what she said she had said.

However, though it was not a point which was expressly articulated by Mr Rowley when he sought to explain the potential significance of Mrs Fuller’s evidence during the course of the hearing, the letter from Miss McMillan’s solicitor dated 18^th May 2012 pointed out that, in an unsigned minute of an investigatory interview, Mrs Fuller was recorded as saying that, at the RCA, she herself had asked what the patient and family had been told. Miss McMillan then explained that, as the patient’s consultant, she had been to see her on the intensive care unit and had told her that, “we don’t know yet what has happened here, that there will be one of those investigations and that I would get back to her and feedback the findings of the meeting.”

That was obviously consistent with Miss McMillan’s account of what she had said to the patient on 8^th June 2010 and the unchallenged evidence of what she had told her and the family the following day. But the point made in the letter of 18^th May 2012 has the appearance of afterthought; and it does not seem to have been raised at any stage of the appeal hearing. Furthermore, what Mrs Fuller had said was, presumably, in the papers before the panel; and they had indicated without any objection, that they would consider any relevant written evidence, at least in so far as it was not made clear that it was challenged. In this particular respect, the evidence in question was not challenged. If it is said that the panel ought to have given specific consideration and weight to it, that ought to have been emphasised at the time. If, on the other hand, it is suggested that the panel should have wholly disregarded Mrs Fuller’s evidence, this particular point, though supportive of Miss McMillan’s case would obviously have fallen away if that course had been taken. In any event, as I have previously said, there was no dispute about the fact that, at the RCA, Miss McMillan had said that she had had no concerns about the application of fundal pressure by Dr Bhandare. In my judgment, there is nothing in the point.

Then, at sub-paragraph 28(c), the pleading refers to the panel advancing what was described as “an alternative version of events” at paragraphs 2.4.11 to 2.4.13 of the decision document, and that this amounted to “pure speculation”, was not supported by any direct evidence and was never specifically put to Miss McMillan during the hearing for her comment. It is also alleged that Mr Rowley was restricted in questioning witnesses about other possibilities which would have demonstrated that the version adopted by the panel was “inherently implausible”.

For my part, I found the relevant passages in the decision document difficult to follow. At paragraph 2.4.8 the panel had already set out certain crucial findings as to what had occurred when Miss McMillan visited the patient at about 8am on 8^th June 2010. They concluded that it was unlikely that Miss McMillan would have chosen this opportunity to relay to the patient the question about the pressure applied by Dr Bhandare which she said had been raised by a member of the family when she met them in the early hours of the same day. They also concluded, on the basis of the evidence of Dr Brennan and Mrs Salt, on the balance of probabilities, that Miss McMillan had attributed the cause of the splenectomy to “pressure” or “when pushing the baby out” when speaking to the patient.

Then at paragraph 2.4.9, they went on to deal with the visit which Miss McMillan made in the early afternoon of the following day, accompanied by Karen Price. They noted that Miss Price had said in her witness statement that the patient’s father asked Miss McMillan why she had had to have a splenectomy. The panel asked itself whether this might have been the first time that Miss McMillan had been asked this question by the patient’s father. But they noted that it was after the visit on the previous day about which Dr Brennan and Mrs Salt had given evidence. The paragraph ends with the following observation:

“This lends weight to the likelihood that it was only after speaking to patient X that the patient’s father raised the question of pressure”.

The point of this final observation seems to be that the panel was minded to hold that the patient’s father had learned that there might be some question about the effect of fundal pressure after speaking to the patient herself subsequent to Miss McMillan’s visit to her on 8^th June 2010. This impression is supported to some extent about what was said in the following paragraph 2.4.10. The comment was made that, if it was the case that the father had first asked the question after Miss McMillan had visited the patient on the intensive care unit on 8^th June 2010 and not at 1am in the morning, why was it that Miss McMillan had said that she had already been asked about it when she saw the patient and that she had passed on this information to the patient herself? They concluded that “this weighs against her version of events to us.”

For my part, I do not find it easy to follow the logic of this approach. The panel does not seem to have taken into account, at least in this section of the decision document, the evidence as to what had been said during the course of the initial meeting with the family in the early hours of 8^th June 2010, including Miss McMillan’s own evidence, the concession by Dawn Wright that she had had some discussion on the topic with a member of the family before this meeting and, of course, Dawn Wright’s evidence as to her subsequent discussion with Miss McMillan. Furthermore, it seems to assume, contrary to the panel’s other findings, that the patient was capable of taking in what had been said to her during the course of Miss McMillan’s visit to the intensive care unit on the morning of 8^th June 2010. Nor does it appear to have taken into account what the patient and her partner seem to have said to Dr Catto on 4^th October 2010.

Then, at paragraph 2.4.11 of the decision document, the panel observed that Miss McMillan did not clearly state that she had told the patient what the family had asked her. This, it is said, was an “important omission”. But, whatever the impression given by her witness statements, or during the earlier disciplinary proceedings it seems to me to be quite clear that, in her oral testimony, Miss McMillan was insisting that she had relayed this information to the patient. Be that as it may, paragraph 2.4.11 goes on to elaborate the point in this way:

“If he (the patient’s father) had already asked this question as EM claims on the 8 June 2010 at 0100 hours, the appeal panel believes it to be an unlikely question to ask again. If it wasn’t asked by the parent at 0100 hours it was misleading to Patient X to say it had been when EM spoke to her at 0800 hours.”

The panel then continued by observing that Karen Price’s account of the conversation – presumably that which took place on 9^th June 2012 – could be relied upon as an accurate reflection of what was said.

They concluded this section of their reasoning with the following passages at paragraphs 2.4.13 and 2.4.14:

“2.4.13

It could therefore be possible that EM was asked the question by the family member on the 9 June and not the 8 June at 0100 hours EM recalls. This may explain why EM did not mention relaying the question to the patient on the 8 June at 8am until the appeal hearing, once she had considered the evidence given by SS and Dr AB, and for the sake of plausibility.

2.4.14

Accordingly, we found that EM did have a conversation with the parent at 1am and then had a conversation with Patient X at 0800 hours when she gave conflicting and misleading statements of what happened and what was said to either – and moreover that her subsequent statements (given in the RCA, the Investigation, the disciplinary process and to us) about these events also contained misleading and conflicting accounts. We regard this finding as serious because of the potential consequences in terms of the perceptions of the family and patient X, and in the context of EM’s duty as to openness being the Openness Lead in this matter.”

What the panel seems to be saying is that Miss McMillan had not previously mentioned the fact that she had passed on to the patient what she claimed had been said to her by the patient’s father in the early hours of 8^th June 2010 and that she had, in effect, invented this evidence in order to explain what had been said by Dr Brennan and Mrs Salt.

I have to say that I find it rather difficult to follow the reasoning of the panel as set out in these paragraphs. They appear to rely upon two principal points: firstly, the fact that the question about the pressure exerted by Dr Bhandare was raised by a family member on the occasion of Miss McMillan’s second visit to the patient on 9^th June 2010; and, secondly, on the fact that, as it would seem, she had never previously claimed that, during her visit to the patient on 8^th June 2010, she had told her that a question of this kind had already been raised by the patient’s father when she had met members of her family at about 1am on the morning of 8^th June 2010. The panel may also have assumed that it would have been unlikely that the same question would have been asked on 9^th June 2010, if it had already been raised in the early hours of the previous day, though they do not actually say so. But they clearly seem to have concluded that Miss McMillan’s evidence that she had told the patient on 8^th June 2010 about the question which she said had already been raised earlier that morning was a late fabrication intended to explain away the evidence of Dr Brennan and Mrs Salt.

But it is not the somewhat obscure logic of these passages which is the subject of direct criticism at paragraph 28(c) of the Amended Particulars of Claim. It is said that it involved speculation on the part of the panel which was not supported by any direct evidence and was never put to Miss McMillan. There does indeed seem to be an element of speculation in the way in which the issue was analysed, at least in so far as it seems to suggest that the question posed by the family member on 9^th June 2010 may have been prompted by what had been said to the patient by Miss McMillan the previous day.

But the real sting of the finding, as it seems to me, is that Miss McMillan had misled the hearing by fabricating an explanation of what Dr Brennan and Mrs Salt may have heard. Yet it is undoubtedly the case that no such suggestion was ever put to her during the course of the hearing. To make such a finding without ever having given the witness the opportunity of dealing with it in the course of the evidence seems to me to constitute a serious irregularity in the proceedings, though, once again, it may be explained by the nature of the procedure adopted by the panel.

Now, of course, none of this would seem to have any direct impact upon the finding which the panel had already made about what Miss McMillan had said to the patient on 8^th June 2010. Furthermore, as I have already emphasised, it is no part of my function to carry out some form of review of the merits of the decision taken by the panel. What I have to resolve is whether this irregularity somehow vitiates the entire appeal process or is evidence of bias.

I am quite satisfied that it does not. The validity of proceedings before any disciplinary body or tribunal is not impeached by procedural irregularities or erroneous findings, even if they are fundamental to the decision ultimately made. By the time the panel handed down its decision, the hearing itself had been concluded. The attack mounted at paragraph 28(c) of the Amended Particulars of Claim is solely directed to the reasoning and conclusions of the panel. But that is not a matter with which I am concerned. The only real question is whether there is evidence of bias or the appearance of bias. I am quite satisfied there is not.

At sub-paragraph 28(d) it is alleged that the panel ignored Miss McMillan’s unchallenged evidence about conversations with the patient and her family where, in respect of two of those conversations, there were no “live” witnesses other than Miss McMillan herself. It is not made clear which conversations this allegation is directed to, but it seems likely that it must refer to the meeting she had with member of the patient’s family in the early hours of 8^th June 2010. It is true that none of the other individuals involved in this conversation were called to give evidence or, indeed, made witness statements, save to the extent that the file note of the meeting with Dr Catto on 4^th October 2010 recorded what the patient’s partner could recall. But there was, of course, indirect evidence of what Miss McMillan had said to the family on this occasion in the form of the account which she was said to have given to Dawn Wright later that morning.

But it seems to me that the essential thrust of the allegation is that there was no direct challenge to Miss McMillan’s account during the course of the hearing, whether on the basis of Dawn Wright’s evidence or otherwise. It would obviously have been better if Miss McMillan’s account of this meeting, had been directly challenged in this way, albeit at the risk that the Chairman might have been seen to have been acting in a partisan manner if he had done so. But, unlike the previous allegation at paragraph 28(c) of the Amended Particulars of Claim, the point was clearly in issue, having regard to Dawn Wright’s evidence; so any failure to raise it directly with Miss McMillan seems to me to be a much less serious irregularity, if irregularity it was. Subject to that point, it seems to me that the panel was clearly entitled in principle to prefer the evidence of Dawn Wright and to reject Miss McMillan’s own evidence on the point. Once again, it cannot possibly, in my judgment, be regarded as vitiating the entire process or showing any form of bias.

At sub-paragraph 28(e), there is a more general allegation that the panel made findings adverse to Miss McMillan in respect of her honesty and credibility without having put those adverse points to her and where she was not challenged on much of her evidence. This, it was alleged, was due to the manner in which the hearing was conducted. That seems to me to be a fair point: the inquisitorial nature of the process almost inevitably led to difficulties of this kind.

Beyond that, the pleading does not give any further particulars. In principle, however, as in relation to the previous allegation which I have had to consider in some detail, I would have thought that it would be a substantial procedural irregularity to make any serious findings about the witness’s honesty without having put the point or points to her during the course of her evidence. As to her credibility, much would depend upon the precise nature of the findings in question. But, whatever precisely is intended to be covered by this allegation, it does not lead me to conclude that the hearing was fundamentally vitiated in any way or that there was bias on the part of the panel.

The final allegation under paragraph 28 is to be found at sub-paragraph (f) which makes a further general allegation that the panel relied on untested evidence, which was not heard orally, and on surmise and speculation, and that it failed to consider unchallenged evidence from Miss McMillan. It is difficult to know precisely what this allegation is aimed at. Firstly, the Chairman made it clear during the course of the hearing that the panel considered that it was entitled to look at the documentary evidence which had been lodged on behalf of Miss McMillan; and no issue was taken with this approach. As for “surmise and speculation” I do not think that I can address the point in the absence of detailed particulars. I can see, however, that there may be a problem in so far as the panel rejected the evidence given by Miss McMillan on the points on which she was not specifically challenged. That is a matter which I have addressed in detail in relation to the allegation at paragraph 28(c) and there is nothing that I think that I can usefully add.

I conclude that there is some substance in the criticisms of the decision document made at paragraph 28(c) of the Amended Particulars of Claim and, it may be in other less important respects. But there is nothing which could possibly justify a finding that the whole appeal process was vitiated by any of these matters, still less justify any inference that there was bias on the part of the panel or the appearance of any bias.

I can now at last turn to the first of the two fundamental issues raised on behalf of Miss McMillan in answer to the Trust’s case, in so far as that was based upon some form of collateral agreement with Miss McMillan under which she agreed to submit to any increased sanction which the appeal panel might think it appropriate to impose. It is contended on behalf of Miss McMillan that, even if there had been some such collateral agreement, the consideration for any promise by Miss McMillan to submit to an enhanced sanction must be found in the Trust’s promise to provide a “rehearing”. But, it is said, the Trust failed to do so and was thereby in breach of its contractual obligations to Miss McMillan and that the consequence of such a breach was substantially to deprive Miss McMillan of the benefit she was entitled to expect from the contract in question, thus discharging her from any further obligations on her own part under the contract.

Thus formulated, there is an obvious problem which faces Miss McMillan but which was not clearly raised during the course of the hearing. Let it be supposed that the Trust was in repudiatory breach of its obligations under the alleged contract. Once accepted, such a repudiation would discharge Miss McMillan from any further obligations. But the question must then arise as to when and how she accepted the Trust’s repudiation of the contract and whether she must be regarded as having affirmed the contract so as to keep it alive.

As I have already pointed out, the whole of this responsive argument is academic, in view of my earlier findings that there was no enforceable contract of the kind contended for by the Trust. But, if I had come to the contrary conclusion, I would have taken the view that the question of acceptance or affirmation should be the subject of further submissions before it would be proper for me to reach any final conclusion on the point.

Leaving that aside, however, the question is whether what took place could fairly and properly be regarded as a “rehearing” of the kind referred to in the exchange of correspondence on 16^th and 17^th February 2012. I make two preliminary observations. Firstly, in the absence of any binding procedural agreement, and having regard to the lack of any prescriptive requirements as to the conduct of appeals under the Disciplinary Code, it seems to me that an appeal panel would have a very wide discretion as to precisely how an appeal should be conducted. It might well confine itself to a review of the kind envisaged under the Trust’s Procedures in relation to capability issues, or direct a full rehearing of the case against the employee.

Secondly, the Chairman made specific reference during the course of the hearing to the decision of the Employment Appeal Tribunal in Whitbread & Co Plc v Mills [1988] ICR 776 as authority for the proposition that a rehearing would cure any procedural unfairness in the original disciplinary proceedings. That was an unfair dismissal case in which there had been an appeal by the employee from the decision that she should be dismissed by what was said to have been a disciplinary hearing. The Industrial Tribunal upheld her complaint; and the employers appealed on the grounds that any procedural defects in the original disciplinary proceedings had been rectified by the subsequent internal appeal. The Employment Appeal Tribunal dismissed the employer’s appeal; against the decision of the Industrial Tribunal and its principal finding was summarised in the head note in the following terms:

“…both the original and appellate decision of the employers were necessary elements in the overall process of terminating the contract of employment; that each part of the disciplinary process had to be examined to see whether any defect in procedure had resulted in an unfair hearing and if it had, whether that unfairness had been rectified by the appeal hearing; that the appeal hearing was in the nature of a review rather than a complete re-hearing and was insufficient to remedy the defects of the prior hearing; and that, accordingly, the industrial tribunal’s decision that the dismissal was unfair on procedural grounds was well founded…”

As was pointed out by Miss McMillan’s solicitors in their letter of 18^th May 2012, in its reserved judgment, which was delivered by Wood J, the Employment Appeal Tribunal, after pointing out that the circumstances of each case must be examined in order to see whether the act or omission which was the subject of complaint had brought about an unfair hearing, continued with the following observations:

“If it has, then whether or not an appeal procedure has rectified the situation must depend upon the degree of unfairness of the initial hearing. If there is a rehearing de novo at first instance, the omission may be corrected, but it seems to ask that if there is to be a correction by the appeal then such an appeal must be of a comprehensive nature, in essence a re-hearing and not a mere review.”

The procedure actually adopted by the appeal panel in the present case seems to me to have represented a somewhat curious hybrid. The fundamental point is that there was no-one present with the responsibility for presenting the management case and challenging the evidence of Miss McMillan. That responsibility was, at least in part, therefore, taken by the appeal panel itself and, in particular, Mr Drake. It was he who introduced the witnesses, asked them whether they were able to confirm their witness statements, controlled the procedure and took the leading role in asking additional questions on behalf of the panel.

In one sense, of course, there was a rehearing of the evidence, since all the available witnesses whose evidence was challenged were called and were cross-examined by Mr Rowley on behalf of Miss McMillan. But it was not an adversarial hearing; and the role of the Chairman was essentially inquisitorial. He and his colleagues were clearly seeking to satisfy themselves as to what had happened, rather than adjudicating upon a case presented to them by a representative of the management. As it seems to me, such a procedure would inevitably place the Chairman in rather a difficult position. On the one hand, he would, in effect, have the responsibility for presenting the case against Miss McMillan, with the attendant risk that there might be an appearance of partisanship; on the other hand, he would no doubt have wished to avoid creating such an impression by not putting questions to Miss McMillan which might have seemed unduly hostile.

Whilst I take the view that, in the absence of any agreement of the kind alleged on behalf of the Trust, such an inquisitorial hearing would have been entirely within the discretion of the panel, the question is whether it was, in truth, a full rehearing of the disciplinary charges as appears to have been promised in the exchange of correspondence in February 2012.

For my part, I have come to the conclusion that this did not represent the sort of rehearing which, from an objective standpoint, must have been contemplated by the parties at the time when these letters were exchanged. The original hearing had clearly been conducted in the usual adversarial manner, with Dr Catto presenting the case against Miss McMillan on behalf of the management. That was entirely in accordance with the provisions of the Disciplinary Code governing such hearings, which provided, at paragraph 4.10, that the investigating manager would present the case against the employee with the employee then having the opportunity to present his own case, including calling witnesses and putting forward any mitigating circumstances. The suggested format of the disciplinary meeting, as set out in Appendix B, similarly assumed that the investigating manager would state the allegations and outline the case against the employee and would go through the available evidence, including, where necessary, calling witnesses. All parties would then have the opportunity to question witnesses and the employee would in due course be able to state his or her own case, ask questions, present evidence and where necessary call in witnesses.

Furthermore, though I did not have the benefit of submissions on other relevant case law, the decision in Whitbread & Co plc v Mills, which was specifically referred to by the Chairman at the appeal hearing, would seem to suggest that the curative effects of an appeal would require a “comprehensive” rehearing rather than some form of review. It seems to me that, at the time of the exchange of correspondence in February 2012, what must, from an objective standpoint, have been contemplated by the parties when they referred to a “rehearing” is that the appeal panel would rehear the complaints against Miss McMillan in their entirety in just the same manner as the original disciplinary panel had or ought to have heard the case against her.

But that is, of course, not what occurred. There was no clear indication prior to the hearing itself of the procedure that would, in fact, be adopted; and I accept the evidence of Mr Rowley that he was surprised to find that there was no-one to present the case on behalf of management. It seems to me that the procedure actually adopted might well have adversely affected the interests of Miss McMillan, compared with a full adversarial process. In the absence of an opening statement on behalf of the management, Miss McMillan and her advisers would have had no clear target for their arguments, particularly in view of the rather unclear way in which the charges themselves were formulated. It is true that both they and the panel would have had a copy of the management case prepared for the original hearing. But there had been no response by the management to the detailed grounds of appeal served on behalf of Miss McMillan which, at least in some measure, might well have rendered the management case, as originally formulated, insufficient.

Nor would it have been at all obvious to Miss McMillan or her solicitor what weight, if any, the panel was likely to place on the various grounds of appeal raised in this very extensive document or, indeed, what points in the evidence it might regard as supporting the charges against her or undermining her own evidence. Furthermore, as I have already observed, there was a real risk that the panel might seem to have been partisan, in so far as it took upon itself the responsibility for investigating the evidence which was said to support the charges against Miss McMillan, though it does not follow that this would amount to apparent bias on the part of the Chairman in the way in which he conducted the hearing. On the other hand, there was a danger that points adverse to Miss McMillan, whether forming an explicit part of the management case or not, might never be put to her in the course of her oral evidence, so as to enable her, if she could, to answer or explain them.

But, whatever the actual or potential shortcomings or consequences of the inquisitorial procedure adopted, I have come to the conclusion that it was not the sort of rehearing which the parties must be regarded as having bargained for, if and in so far as they entered into a binding contract by way of the exchange of letters of 16^th and 17^th February 2012. So, I would conclude that, if there had been a contract of the kind contended for by the Trust, there would have been a serious breach of its terms by the Trust as a result of the procedure adopted by the appeal panel.

If there had been an objection by Mr Rowley on behalf of his client at the outset or, indeed, during the course of the hearing, the panel would have had to rule on the objection and decide whether it was appropriate to proceed or continue with the hearing in accordance with the procedure adopted. If they had overruled the objection, I would have thought that the breach would have been sufficiently serious as to have enabled Miss McMillan, if so advised, to treat herself as having been discharged from any obligations on her part under any such collateral agreement. That is not, of course, how it was seen by her or her advisers at the time, since the argument based upon some such contract was not raised until a much later date.

However, in the absence of any objection or challenge, at the time there must be a very real question as to whether it would be open to Miss McMillan, several months later, to claim that she was no longer bound by the terms of any agreement, insofar as it amounted to a binding contract. It might well be said that she had waived any breach or affirmed the contract notwithstanding the breach on the part of the Trust. So the point is not merely academic, in the light of my earlier findings, but may well be going nowhere, even if I were wrong. But that is not an issue that I can resolve at this stage. As I have already indicated, if the point had not been moot, I would have invited further submissions on the evidence and on the law.

I turn finally to the question of bias. As will be apparent from my detailed analysis of the hearing and what I have had to say about the decision document itself, I can see no basis whatever on which it would be appropriate to find that any bias, actual or apparent, had been shown by the Chairman or any other member of the panel. Both Mr Drake and Miss Steele were subjected to a lengthy cross-examination. But nothing arose from it which would alter in any way the view which I have formed on the basis of the documents themselves.

But that was not quite the end of the matter. Further allegations of bias are made in respect of the way in which the panel subsequently dealt with Miss McMillan’s request for a further rehearing of the appeal, the application made on her behalf by leading counsel at the adjourned hearing of 27^th June 2012 that the panel should recuse itself, and the way in which it handled her decision to withdraw her appeal.

In particular, at paragraph 39, it is alleged that Mr Drake attempted to prevent the appeal from being withdrawn and expressed the view that it should continue, whatever the wishes of Miss McMillan and that he thereby demonstrated his bias. Furthermore, at paragraph 40, it is alleged that the only reason why the panel would have continued with the hearing was because it was intending to recommend or impose dismissal. Yet further, at paragraph 41 of the Amended Particulars of Claim, it is alleged that during the course of the hearing on 27^th June 2010, Mr Drake sought to question Miss McMillan’s counsel as to how her client could continue in her employment if she had lost trust and confidence in the panel. This is alleged to have demonstrated bias on his part. Finally, it is alleged at paragraph 45 that from handwritten notes subsequently disclosed to Miss McMillan’s advisers, it appears that Mr Drake made suggestions as to how the dismissal of the Claimant could be justified in employment terms if the hearing proceeded in her absence notwithstanding the purported withdrawal of her appeal. This conduct is also alleged to demonstrate actual or at least apparent bias on his part.

In my judgment, none of these allegations of actual or apparent bias are made out. The question whether Miss McMillan was entitled to withdraw her appeal was by no means a straightforward matter. It was vigorously argued on behalf of the Trust that she was not entitled to do so. The Chairman and, no doubt, the other members of the panel were clearly sympathetic to this argument. But it appears that they took some form of independent advice and obviously reflected upon it before deciding that they should go on to consider sanction despite the assertion on behalf of Miss McMillan that the appeal had been withdrawn and that she would be taking no further part in the proceedings. In the event, I have come to the conclusion that Miss McMillan was entitled to withdraw her appeal. But I can see nothing indicative of bias in the decision taken by the panel to continue with the appeal or in the views expressed by Mr Drake during the course of the hearing on 27^th June 2012.

Similarly, I can see no satisfactory basis for inferring that the only reason for the decision taken by the panel to proceed with the hearing was that they intended to impose a sanction of dismissal. No doubt a cynical and suspicious-minded observer might point to the exchange of correspondence in February 2012 and the observations of the Chairman at the outset of the substantive appeal, in which it was made clear that the panel considered that, on a rehearing, it had power to increase the sanction already imposed upon Miss McMillan, as tending to show that dismissal was already within the contemplation of the panel from the outset. Furthermore, of course, by his letter of 22^nd June 2012, Dr Catto made it clear that he would be contending, on behalf of the Trust, that the appropriate sanction was dismissal. But Mr Drake roundly denied that, even if the appeal were to proceed in the absence of Miss McMillan, he had already made up his mind that this would be the appropriate sanction. I have no reason to doubt the good faith of Mr Drake or the other members of the panel; and I cannot possibly hold that the whole appeal exercise was some form of show trial moving inexorably towards some predetermined objective.

I do not consider that the exchange between Mr Drake and counsel about Miss McMillan’s loss of trust and confidence in the Chairman alters the view that I have formed; nor does the suggestion that the Chairman himself reflected on the issues of withdrawal and dismissal.

In conclusion, therefore, I would make it clear that I would acquit Mr Drake and the other members of the panel of any charge of bias and reject Miss McMillan’s allegations to the contrary.

I must finally address the question of remedy. It is suggested on behalf of the Trust that there was undue delay on the part of Miss McMillan and her advisers in pursing her remedy by way of the present proceedings and that they represent an inappropriate attempt to draw the court into the micro-management of the Trust’s disciplinary proceedings. It is contended that, as a matter of discretion, the court should refuse to grant any relief.

Some considerable time undoubtedly elapsed between the promulgation of the panel’s decision on 23^rd March 2012 and the detailed response on the part of Miss McMillan in the form of her solicitors’ letter of 18^th May 2012. But the solicitors had already made it plain, by their letter of 19^th April 2012, that such a detailed response would be forthcoming and would require input from leading counsel. There was then some further correspondence as to the form of the further hearing, which had originally been scheduled for 23^rd May 2012 but which was then adjourned to 27^th June 2012.

But it was only when Miss McMillan and her advisers received a copy of Dr Catto’s response dated 22^nd June 2012 that it became clear that the Trust would be seeking Miss McMillan’s dismissal. By her solicitor’s letter of 27^th June 2012 in which they stated that, if the panel refused to recuse itself, Miss McMillan would withdraw her appeal, they also made it plain that they would commence legal proceedings and would apply for injunctive relief. There followed some further correspondence and the present proceedings were ultimately commenced on 14^th August 2012 and proceeded to a hearing before His Honour Judge Raynor QC the following day, 15^th August 2012, at which the Trust gave an undertaking not to reconvene an appeal panel to consider the issues of sanction or other matters until trial or further order.

Given the nature of the issues raised in these proceedings, I do not see any undue delay on the part of Miss McMillan and her advisers which would justify the exercise of any discretion to refuse to grant any form of relief notwithstanding the findings which I have made in her favour. Furthermore, it does not seem to me that this is the sort of case which involves a micro-management of the appeal process by the court. The primary issues are contractual; and the parties to a contract are entitled to have any dispute about its meaning or effect determined by the court. No doubt, as I have previously said, there will be cases in which the nature of the dispute would not justify any form of injunctive relief. But the present case is essentially directed to the very important question as to whether the appeal panel has the right to determine that Miss McMillan should be dismissed from her post, as is now sought by its management.

I entirely accept that the court could not, or at least should not, grant an injunction to prevent an employer dismissing an employee. But I can see no reason why it should not enjoin it from pursuing an appeal process contrary to what I have held to be Miss McMillan’s contractual rights. I will hear counsel, if necessary, on the form of order; but I am minded to grant a permanent injunction substantially in the form of the first undertaking recorded in the order of Judge Raynor QC dated 15^th August 2012 by which the Trust undertook not to reconvene the appeal panel to consider issues of sanction. I would also, of course, be minded to grant declaratory relief in an appropriate form.