Al-Mishlab v Milton Keynes Hospital NHS Foundation Trust

This matter comes before the High Court today upon an urgent basis. It relates to a hearing due to commence tomorrow. It raises issues of some factual and legal complexity. Given the time constraints it is necessary to give an ex tempore judgment and as such the reasoning cannot be as full as I would otherwise have wished it to be. I have been referred to and have reviewed a good deal of evidence. It is not possible, however, to reflect all of it in this judgment.

This is an application for interim relief to restrain a hearing due to commence tomorrow on 1^st October 2015 and set to last two days, at which a panel of independent assessors convened by the Defendant Trust will consider whether the Applicant’s employment should be terminated for one or more of the following reasons: first, that there are serious and irremediable shortcomings in the Applicant’s professional capability and/or secondly, that there has been an irreparable breakdown in relations between the Applicant and key members of the multi-disciplinary team with whom he would have to work if he were to return to practice within the Trust.

The Applicant is a consultant colorectal and general surgeon employed by the Defendant Trust. The background chronology is complex but for present purposes it suffices to provide the following short summary. From about September 2004 the Applicant was employed as a consultant general surgeon with an interest in colorectal surgery. In July 2010 the medical director of the Defendant Trust sent a letter to the Applicant explaining that the Trust had concerns about complication rates arising from major colorectal surgery performed by the Applicant. The letter referred also to a perceived failure on the Applicant’s part to take and accept advice. The letter indicated that the Applicant would be suspended from performing colorectal surgery pending the outcome of an investigation. From 2010 onwards a series of investigations were performed into the capability of the Applicant and as to his relations with colleagues. In respect of the latter issue, namely relationships, the Trust proposes to rely upon a series of pieces of evidence included in reports by, amongst others, Professor Martin Wetherall, Professor Carson, RCS assessors, a GMC report and from a judgment of Mrs. Justice Elizabeth Laing of 2^nd February 2015.

In April 2011 the Applicant was subject to exclusion from his practice at the Trust. This was pursuant to the Trust forming the view that the Applicant’s professional capability was below that required, and further that relations between him and others with whom he worked had irretrievably broken down. This was varied in March 2015 so that the Applicant could undertake a remedial placement at an external NHS Trust if one could be found. In the event no such Trust has been identified to host such a programme and there has been no internal Trust remediation report. I am told that this was for two reasons, both said to be insuperable. First, it has not been possible to identify an appropriate supervisor to oversee the remediation excercise, and, secondly, it is considered that personal relations between the Applicant and colleagues had fallen to such a low ebb as to be non-reparable.

I have briefly referred to the judgment of Laing J. This arose because the Applicant convened High Court proceedings challenging the legality of his suspension. The trial of this issue occurred in December 2014. The claim failed and judgment was given on 2^nd February 2015 and is reported at [2015] EWHC 191. Mediation efforts had failed. In February 2015 the Trust through the appointed case manager informed the Applicant that there would be a reference of the Applicant’s capability to a formal capability panel.

The Applicant’s employment was subject to written terms and conditions dated 14^th September 2004. These include at paragraph 17 provisions relating to disciplinary matters. Paragraph 17 is in the following 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 the Trust’s disciplinary policy and dismissal procedures for medical staff 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.”

It is common ground that the procedure laid down in the Department of Health document “Maintaining High Professional Standards in the Modern NHS” applied. I refer to this document as the “MHPS”. The terms of reference of the assessment panel which has now been instituted follow in effect two parts. In relation to the issue of capability the Trust is purporting to follow the MHPS. In relation to the issue of relationship breakdown there is a dispute as to whether the Trust has in fact applied the MHPS. Nonetheless, the Trust accepts that whether or not the MHPS applies to the question of breakdown of relationship, it must in all regards act fairly. The MHPS itself sets out detailed procedures including in relation to the detailed pre-hearing preparation of evidence and the affording to an investigated person of a right of response. It also includes detailed appellate procedures described as intended to be “robust”, the predominant purpose of which is to ensure that a fair hearing is given at the original stage and that a fair and reasonable decision was reached by the hearing panel: see the MHPS document, paragraph 31.

The basis upon which the Applicant now says that convening this hearing is arguably unlawful is summarised in the Claimant’s skeleton in the following way. It is the Claimant’s case that the Trust’s decision to proceed with the capability hearing constitutes a breach of his contract of employment. In particular the Applicant relies upon the following: (1) an alleged failure on the part of the Trust to conduct any or any adequate investigation as to whether there had actually been a fundamental breakdown of working relationships; (2) the intention on the part of the case manager responsible for decision making on behalf of the Trust in relation to the case in accordance with the MHPS procedures and responsible for the presentation of the Trust’s case at the capability hearing, to be absent from that hearing; (3) intention of the Trust to rely in support of its case that the Applicant should be dismissed upon grounds of a fundamental breakdown in working relationships upon conclusions contained within the judgment of Laing J., to which I have already referred.

These three grounds subdivide into a number of more discrete points, but all lead one way or another to a submission that the procedure to be adopted in the assessment hearing will be unfair. I shall elaborate briefly upon each ground before turning to my analysis of the issues arising in the light of the criteria applicable to interim relief.

First, it is submitted by Mr. Sutton QC on behalf of the Applicant that the Trust is using the MHPS procedure for the capability issue but not the relationship breakdown issue. This is it is said in breach of the Applicant’s contract, not least because on the Trust’s case that the two issues are inextricably intertwined. The Applicant submits that the substance of the Trust’s relationship case is based upon facts and matters properly falling within the heading of capability, and therefore the effect of this bifurcated approach is wrongly to sidestep important and fundamental safeguards provided by the MHPS to the Applicant. Next it is said that there has been no prior investigation into the alleged breakdown in relationships. No investigation has ever been performed by any person with formal terms of reference to enquire into that issue. By way of illustration it is said that the prior investigations by Professors Wetherall, Winslett and Carson did not proceed upon the basis of terms of reference addressing relationship breakdown. The GMC investigation equally was not specifically on point. In short, it is submitted that the Trust has never had the intention of conducting an investigation of the sort that is said to be required.

In paragraph 47 of the Applicant’s skeleton argument the following is stated which encapsulates the point:

“It is clear that the Trust has no intention of conducting an investigation of the type required. The Trust’s intention as set out in the recent correspondence is to trawl back through the historic documentation produced in the course of the five years since Professor Wetherall was first commissioned to start his investigation with the aim of flagging up references which may support the assertion it seeks to advance. There is no intention to (1) undertake any interviews of the current members of the department to ascertain whether they would be willing to work with the Claimant; (2) call any of the relevant staff as witnesses at the capability hearing; (3) investigate the extent to which the current concerns expressed by staff might be met; (4) enquire into the circumstances in which the mediation failed to proceed; and (5) produce a report.”

In paragraph 49 of his skeleton the Applicant states and submits:

“A process of cobbling together at the last minute a case based on selective extracts from documents produced over the last five years in the course of investigations of other issues is plainly no substitute for a properly conducted investigation into the current concerns of the doctor’s colleagues, and the extent to which those concerns can be addressed.”

The next point is that the Applicant submits that the role of a case manager is critical to the assessment process mandated by the MHPS. Under the mandated procedure a person must be appointed to the role of case manager and thereafter that person has defined investigatory functions to perform which include attending and presenting a case before a panel. In particular, the case manager must review the evidence obtained during the prior investigation to reach a conclusion as to what further action should be taken by the Trust. It is submitted that in the present case the case manager is not intending to be present at the hearing. The Applicant has set out in his skeleton argument at paragraph 55 a series of questions which he says ought to be posed to the case manager but in his absence will not be.

Finally, it is said that in relation to the judgment of Laing J. that the Trust’s position is confused and inconsistent. It is submitted that reliance upon her judgment is fundamentally unfair, particularly as the judge herself did not, it is said, purport to lay down definitive findings of fact: see paragraphs 89 and 92 of her judgment. It is pointed out in any event that the judgment is subject to appeal.

I turn now to an assessment of these arguments. Some of the arguments go to whether the Applicant has shown a serious issue to be tried in traditional Cyanamid terms. In applying Cyanamid I have had regard to the case law and the way that it applies to internal employment proceedings. Mr. Cooper has in the course of the hearing today made a number of submissions about the manner in which the courts exercise their discretion to grant or refuse interlocutory relief in circumstances such as these. There was no material dispute between himself and Mr. Sutton as to these principles, and I summarise them as follows.

First, in an employment context there is a power vested in the employer to manage employees, which includes establishing relevant facts and deciding how these facts affect future relations. Even where internal procedures are detailed the purpose of those procedures is to facilitate the employer’s managerial power. Where detailed procedures are silent on the matter then the fallback is that it is a managerial discretion for the employer to decide upon in relation to that gap. In this regard see MacMillan [2014] EWCA 1031, paragraph 51 and the judgments cited therein.

Secondly, it is accepted that there are implied terms in the Applicant’s contract that neither party will without reasonable and proper cause act in a manner that is calculated or likely to destroy or seriously damage the relationship of trust and confidence and that the defendant will in any event act fairly in the conduct of an internal disciplinary or similar process. It is therefore accepted that implied terms constrain the exercise of the employer’s discretion. But it is also submitted that the discretion remains broad: See in this regard Braganza [2015] UK SC 17 at 30 and Yapp [2014] EWCA Civ 1512 at paragraphs 59-61. In those judgments there is reference to the discretion being akin to a Wednesbury rationality test in that an employer may properly be able to exercise a discretion over a range of possible reasonable options.

Thirdly, it is submitted that the court should not engage in micro-management of employment procedures. Illustrations of matters which the courts have treated as micro-management may be found in the judgment of the Court of Appeal in Kulkarni [2009] EWCA Civ 789. In that case the High Court and Court of Appeal refused to interfere in a panel where the issue concerned the alleged wrongful admission of prejudicial evidence; see also Chhabrav West London Mental Health Trust [2013] UKSC 80, at paragraphs 36-40.

Fourth, there is a public interest in allowing internal processes to run their course and courts should be slow to interfere if disputed issues can be sorted out and resolved within the framework of the internal procedure itself. See for example, Makhdum [2012] EWHC 4015 per Beatson J. at paragraph 51 where the judge indicated that it would in effect require serious irregularities before the court would consider interfering. He also intimated (see paragraph 52) that where the parties have agreed upon a process the court should prima facie respect the contractual intention of the parties and allow the process to occur. Similar observations were made by Mann J. in Hendy v MOJ [2014] EWHC 2539 at paragraph 49 and see also Sarker [2015] EWHC 165 to similar effect.

Fifthly, there is a public interest that matters which needs to be taken of a substantive nature, (which would in my view include a decision upon the capability of a practitioner to work within the NHS) should be taken by the mandated expert panel: See by way of illustration Dr A v HTX [2012] EWHC 857 (QB) at paragraph 203.

Finally, I should refer to the decision of Simler J. in Chakrabarti [2014] EWHC 2735 at paragraphs 116 and 160-163 for the proposition that procedures should be applied with flexibility.

With that review of the facts and the law I turn now to my conclusions. I state straightaway that applying these principles to the facts I do not propose to grant the relief sought. I do have a postscript to this however which I will add at the end of my judgment. This is for a number of reasons.

I start my analysis by mentioning one of the Applicant’s core complaints, namely that the MHPS does, properly construed, cover relationship issues but that the Trust has failed to apply the mandated procedures to the question of relationships. It is not in my judgment possible to say that the Applicant’s arguments on this point are not arguable or serious. I propose to proceed upon the basis that the MHPS might arguably include relationship issues and concerns. I am also conscious of the fact that there is a dispute as towhether if the framework applies the Trust has in any event complied with the MHPS. Mr. Cooper submits that construed flexibly and purposely the Trust has complied. Mr. Sutton says they have not. It is not necessary for the purpose of my judgment to resolve that particular dispute. In my judgment the crux of this matter turns upon broader balance of convenience issues.

My first reason for rejecting the application is that the application is in a sense premature. This is pre-emptive litigation. The Applicant can, should he so wish, raise any points that he likes during the hearing of either a substantive or a procedural nature. If he prevails then that will be the end of the matter. He will have attained the result he seeks. If he fails and is unhappy with the result he can then appeal under the procedures referred to in the MHPS. The assessment procedure is flexible and the Trust points out that it is able to deal with the full range of the Applicant’s arguments. It is therefore in my view a relevant consideration that the Applicant has a specialist body prepared to listen to his case and to rule upon it. There is no suggestion that it lacks adequate independence or would be biased or otherwise would be incapable or unwilling to listen to the Applicant’s submissions.

This consideration in my judgment also addresses the Applicant’s concerns about the judgment of Laing J. Mr. Sutton for the Applicant accepts that the judgment is at the very least admissible. But he rejects any contention that the findings bind the panel or should have any probative weight. He relies upon paragraphs 89 and 92 of the judgment which do indeed provide support for Mr. Sutton’s submissions that the judge herself considered that the appropriate place for findings to be made was a panel. As to this Mr. Cooper for the Trust accepts that the findings are not binding upon the panel albeit that it is the Trust’s intention to make submissions to the panel about them. If the Trust places over or exaggerated reliance upon the judgment the Applicant may say as much. It will then be for the assessors to consider the judgment carefully and attach such proper weight, if any, to the findings therein as they see fit. It is not open to me to rule in advance as to the weight to be attached to the judgment or findings therein, and I have no way of knowing what approach will be taken by the assessors. If they err their decision can be appealed.

The same point can be made about the criticism that there has been no formal investigation into the breakdown in relations or that the MHPS procedure has improperly been overlooked. In their skeleton argument the Trust at paragraph 11 set out a list of references to reports in which in varying degrees of detail about investigations and enquiries into the Applicant’s relations within the trust had been considered. By way of example I cite from paragraph 11.3 which says as follows: “Professor Wetherall sought assistance with his investigation from the RCS. In March 2011 the RCS assessors obtained evidence that many of the Claimant’s colleagues believed him to be ‘dangerous’ and ‘arrogant’ and found ways to ‘bypass him’ rather than work with him. They recommended his immediate exclusion, which was subsequently converted into a formal exclusion and has in effect remained in place ever since.” In paragraph 11.6 the Trust refers to adverse conclusions formed by the GMC.

There is thus a body of evidence which the Trust proposes to place before the assessment panel. Whether it is accepted however, and if it is what weight and probative value is attached to it, is for the panel. They are better placed to assess that evidence than is the High Court.

And yet again the same point arises in relation to the presence of the case manager, Mr. Neil. The hearing has, I understand, been adjourned on a number of previous occasions. It has proven difficult to get the relevant individuals together. It so happens that on the date now chosen Mr. Neil must give evidence at a coroner’s inquest. However it is accepted that he must make himself available either by phone or conference call or Skype or in some other convenient way and in extremis the Trust has indicated that they will extract Mr. Neil from the coroner’s inquest so as to make him available for questioning. I do not propose to indicate how the panel might address logistical case management issues arising, but it seems to me it falls within their discretion to act fairly and to make appropriate arrangements to ensure that the Applicant is not prejudiced by the case managers unavailability.

In short, this sort of pre-emptive challenge based upon assertions that the proposed procedure will be unfair must necessarily be unconvincing in the absence of evidence that the procedure that will in practice be adopted is systemically unfair. Given that it is common ground that the panel must act flexibly and fairly, I cannot make that assumption at this stage.

I take account of the fact that in Chhabra v West London Mental Health Trust [2013] UK SC 80 the Supreme Court held that the mere fact that there are or may be irregularities in a procedure will not necessarily be decisive and lead to it being found to be unlawful. Lord Hodge for example, at paragraphs 39 and following, addressed this. In each case it may turn upon the materiality of the irregularity, but as matters presently stand I cannot say that there is an irregularity or that if there is that it will be material. Properly appraised the panel is capable of overcoming prior irregularities and ensuring, as indeed it must, that the Applicant is treated fairly. Mr. Sutton submitted that the court should interfere where an important procedural protection was being denied a practitioner, and he submitted that in this case fundamental procedural protection was going to be denied to his client. In my review of the evidence taken in the round I do not, with respect, share this view.

I turn now to the Applicant’s related complaint, that because the MHPS does not apply to relationship breakdowns there will be procedural unfairness. As to this I am far from satisfied that the dispute over whether the MHPS applies is a significant or material issue. It is clear from authority that even if the MHPS does not apply the panel is still under a duty to act fairly. This must mean that evidence will be placed before the assessors to enable them to form their own independent view as to whether relations have broken down. They must assess that evidence objectively and dispassionately. They must arrive at a conclusion having given the Applicant a fair chance to be heard upon that evidence and to put his side of the case. If that occurs I cannot see that the fact that the Trust has, arguably on the Applicant’s case, not complied rigorously with the precise requirements of the MHPS to be relevant. It will have caused no material prejudice to him. On my analysis the Applicant will have a fair hearing regardless.

The gravamen of this case is that the Defendant through its assessment panel must act fairly towards the Applicant under all of the heads which are to be disputed and resolved before it. If at the end of the day the Applicant does not prevail and wishes to challenge the panel’s conclusion it has a right of appeal. I have already referred to the existence of that and the predominant purpose of the Appellate procedure being to ensure that the first instance panel acted fairly and reasonably.

I turn now to the final issue of timing and delay. In my view an injunction now would in effect place the decision making process into the lap of the High Court. The trial of this matter would not occur, assuming a reasonable tail wind, until 2016. If it was delayed it could even occur as late as 2017 and an appeal thereafter could push the matter into 2018. I accepted the Trust’s submission that it must grapple with this dispute sooner rather than later. I considered that it is in the public interest in relation to the workings of a body as important as the NHS that issues surrounding the status of senior professionals be resolved as speedily as is possible. Granting relief could thus thwart justice and increase uncertainty for the Applicant and for the Trust. Complaint is already made by the Applicant as to the length of time that the investigation has already taken. I am also confident that granting relief would very substantially increase the costs for, as I see it, no good reason. The assessment by independent assessors from within the Trust is the route considered best suited to resolve these disputes. Transferring that task to the High Court would not in my view demonstrably improve the efficiency of the decision making process.

For all of these reasons I decline to grant the relief sought.

I would add one matter by way of postscript. In the course of argument Mr. Sutton for the Applicant advanced a serious case to the effect that the procedure adopted was in a number of respects unusual or irregular as he put it. I have not formed any definitive view on this matter. Nonetheless it seems to me critical that the panel is acutely conscious of the need to be vigilant to ensure that the Applicant’s right to a fair hearing is protected. The Applicant must know clearly what the Trust’s case is against him on all relevant matters, including relationship matters. I am told that the panel has the ability to adjourn. It will be for the panel to decide if and how to use its powers of adjournment if it considers that the Trust has not acted fairly towards the Applicant or given him a fair opportunity to prepare his case. In considering its duty to act fairly the panel will no doubt have regard in all respects to the MHPS, even if it is of the view that strictly it does not apply. This is because the MHPS is intended to apply a test of fairness in the professional NHS setting, and it provides valuable guidance as to how fairness may be achieved.

I emphasise this particular point because of paragraphs 45 and 46 of Professor Wetherall’s second witness statement which concerned the issue of a complaint made by the Applicant about various nurses. It is not necessary to go into the details of that matter at this stage. The matters raised in those paragraphs are in an unparticularised form, though I accept these were matters litigated before Laing J. But I would be concerned if the panel permitted this sort of evidence to lead it into satellite litigation which detracted from the core issues which are before it. Of course at the end of the day it will be for the panel to form its own view on all of these matters.

For all the reasons that I have given this application does not succeed.