Maintaining High Professional Standards: Procedural fairness and categorisation
Kamath v Blackpool Teaching Hospitals NHS Foundation Trust [2021] EWHC 2811 (QB)
When representing a doctor facing MHPS proceedings, the Case Manager’s decision as to how to categorise the case is critical. Following receipt of the investigation, (s)he must decide: are the concerns best considered as conduct or as capability issues? That decision, of course, will rest largely on the adequacy or otherwise of the investigation. Often the impartiality and fairness of the investigation will be a matter of concern. Does the Case Investigator have the appropriate clinical experience to comment on the case in the way (s)he does? Why have certain witnesses not been interviewed? Why did (s)he not put X or Y suggestion to the doctor when (s)he was interviewed? And so the concerns go on. The recent case of Kamath v Blackpool Teaching Hospitals NHS Foundation Trust sheds valuable light on these issues.
The Claimant worked as a Consultant Orthopaedic Surgeon for the Trust. He faced an investigation into his management of three emergency admissions between 25-28 October 2019. Concerns particularly emerged regarding the delay of certain treatment. This was investigated in line with the MHPS framework. Dr Goode, the interim Medical Director, acted as Case Manager. He appointed Mrs Rose – a retired physiotherapist – to act as Case Investigator, carrying out the investigation in line with the Terms of Reference (“TOR”) provided by Dr Goode. Having considered her report, Dr Goode made the decision to refer the case to a disciplinary hearing on the basis of alleged gross misconduct.
The Claimant challenged this categorisation, and argued his case should be dealt with as a capability hearing. The Trust rejected this argument and alleged that the allegations related to his “conduct and probity”. The Claimant disputed this interpretation, and maintained no probity concerns had ever been raised before. He further observed an important witness had not been interviewed during the investigation. In response, Dr Goode obtained further witness evidence himself and re-affirmed his decision that the case proceed as a conduct case. He alleged the Claimant’s treatment of these patients had been influenced by regard for his own personal convenience, not the patients’ best interests. Amongst other grounds, the Claimant brought a challenge for breach of contract arising out of this categorisation and alleged procedural unfairness.
The High Court found significant procedural unfairness – sufficiently serious to amount to a breach of contract. The TOR provided to the Case Investigator simply did not allege that the concerns against the Claimant amounted to a lack of probity. It was wrong, therefore, for the Case Manager to refer the case to a hearing on that basis. The court made plain,
“if the [Case Investigator] was being asked to investigate and consider whether there was a case to answer in respect of the Claimant’s probity – and specifically as to whether he had put his personal convenience ahead of the interests of all or some of these three patients – that was an issue which needed to be unequivocally identified in (at least) the TOR. That was necessary so that both Mrs Rose and the Claimant knew that an allegation of that gravity was being made and to be investigated.”
It was, moreover, improper for the Case Manager to supplement the investigation by obtaining further witness evidence himself. If further evidence was needed, the appropriate course of action would be to ask the Case Investigator to do so in the usual way. The two roles are distinct. The Case Investigator investigates. The Case Manager considers the findings of that investigation and acts accordingly.
The High Court went on to add,
“I do not consider that the importance of that independent investigation can be set aside on the basis that the material obtained and considered by Mrs Rose included evidence that might be read as providing support to an allegation that he had put his own interests ahead of the clinical needs of his patients, e.g. her interviews of Dr Saleem and Mr Shetty. In any event those interviews were after the Claimant’s interview, with the consequence that nothing from those interviews were put to him.”
Further, the fact the Claimant raised the absence of certain witness evidence in correspondence did not mean the Case Manager should take this to be a waiver of the need to follow the proper procedure and that he was then permitted to obtain such evidence himself. The court concluded it would be wrong for the hearing to proceed to a hearing on the existing basis. The disciplinary process should be restarted.
Notwithstanding this decision, the court still went on to consider the issue of categorisation. The Trust maintained that the decision to refer the matter for a conduct or capability hearing was a matter for its discretion and the court should not intervene absent evidence of bad faith or irrationality. The court disagreed. Whilst concerned with a previous NHS contact, it relied on the House of Lords’ opinion in Skidmore v. Dartford and Gravesham NHS Trust [2003] UKHL 27; [2003] ICR 721:
“The trust is entitled to decide what disciplinary route should be followed. That decision must, however, comply with the terms of the contract. If a non-conforming decision is taken and acted upon, there is a breach of contract resulting in the usual remedies”.
If this categorisation is “wrong” that is enough for breach of contract. There is no need to prove irrationality. The issue is whether the investigation’s findings taken at their highest are capable of supporting an allegation of gross misconduct. That is a question of law, not of discretion. Equally, whether a case is a “mixed case” – combining both issues of capacity and conduct – is also not a question of discretion. The only issue of discretion arises when it comes to the Trust deciding how to deal with a “mixed case” and which route is appropriate in such circumstances.
Nonetheless, despite these helpful observations, in this case the Claimant was wrong to insist his case should be addressed solely as a matter of capability:
“The Claimant’s argument substantially depends on the proposition that issues of potential clinical negligence (Patient A) or of failures of communications and/or teamwork (Patients B and C) are necessarily matters of capability alone; and that the examples of capability issues provided in the MHPS/HCP provide further demonstration of this. I do not accept this… (T)hese are all matters which are capable of being issues of conduct, depending on the individual facts and circumstances.”
In this instance the court considered the Claimant’s case was properly categorised as one of conduct.
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