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Appeal against a decision in the High Court to grant an injunction that prevented the employer's disciplinary panel from investigating allegations relating to patient confidentiality as matters of gross misconduct. Appeal allowed.
The employee was a consultant forensic psychiatrist. A complaint was raised that she had breached client confidentiality that, while on the train, she allowed patient notes to be clearly readable, discussed patient matters with her secretary and dictated tribunal reports. The case was investigated and the case manager, on receipt of the investigator's report, decided that the matters should be referred to a disciplinary panel as they were matters of gross misconduct that could lead to dismissal. The employee admitted the allegations but felt that the matter should be handled under the employer's Fair Blame policy, that the allegations should not be heard until other capability concerns were resolved and that the case manager had gone beyond the findings of the case investigator. After an internal appeal failed she issued proceedings in the High Court where the judge agreed that the Trust had erred in categorising the allegations as gross misconduct and that the case 'cried out for fair blame'.
In this judgment Pill LJ provides a comprehensive review of the background, the relevant disciplinary frameworks available within the NHS and the rival submissions. He concludes that the Court is entitled to intervene following Edwards v Chesterfield and Skidmore and notes that while the Fair Blame procedure is encouraged the relevant policies 'repeatedly reserve a power to refer disciplinary matters to a conduct panel'. He also finds that the use of terms such as 'gross' and 'wilful' by the case manager did not go beyond his powers 'provided evidence in the investigator's report justifies their use'. The appeal turned on this issue and he found that the case manager was entitled to conclude that the threshold for gross misconduct had been crossed and therefore allowed the appeal.
Case No: A2/2012/1552
Neutral Citation Number:  EWCA Civ 11
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE McMULLEN QC
(SITTING AS A JUDGE OF THE HIGH COURT)
 EWHC 1735 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD JUSTICE PILL, LORD JUSTICE JACKSON, and LORD JUSTICE TREACY
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West London Mental Health NHS Trust (Appellant)
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Ms Jane McNeill QC and Ms Louise Chudleigh (instructed by Capsticks Solicitors LLP) for the Appellant
Mr Mark Sutton QC and Miss Betsan Criddle (instructed by Messrs Radcliffes Le Brasseur) for the Respondent
Hearing dates : 4 & 5 December 2012
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Lord Justice Pill :
1. This is an appeal by West London Mental Health NHS Trust ("the Trust") against a decision of His Honour Judge McMullen QC, sitting as a judge of the High Court, given on 1 June 2012. The judge acceded to the submission of Dr Chhabra that she was entitled to a declaration and injunction the effect of which were to prevent a disciplinary panel appointed by the Trust, her employer, from investigating what are described as "confidentiality concerns" contained in the Trust's letter of 12 August 2011 as matters of gross misconduct and under the terms of its disciplinary policy.
The facts and the complaint
2. Dr Chhabra was employed by the Trust as a consultant forensic psychiatrist at Broadmoor Hospital from 1 September 2009. It was alleged that when a passenger on a railway train between Sunningdale and Waterloo on 24 November 2010 she breached patient confidentiality. Concerns of a different kind had previously been expressed about Dr Chhabra's work and she was made subject, on 1 October 2011, to an appraisal process.
3. The complaint about patient confidentiality was made by a civil servant, who was a passenger on the same train, in a letter of 2 December 2010. A decision to exclude Dr Chhabra from her practice was made on 15 December 2010. She returned to work in a supervised capacity in March 2011.
4. Dr Taylor, an outside consultant forensic psychiatrist, was appointed as case investigator. Dr Taylor produced what is known as a D4A investigation report on 15 June 2011. By letter of 12 August 2011, Dr Broughton, the Trust's Medical Director, who had been appointed by the Trust as case manager, told Dr Chhabra that the allegations of misconduct would be referred to a disciplinary panel. Other capability concerns would be referred to the National Clinical Assessment Service ("NCAS"). In a second report dated 16 November 2011, Dr Taylor rejected one of the allegations of misconduct which had been made.
5. Dr Chhabra's claim arises out of the decision of the Trust to seek to convene a disciplinary hearing at which Dr Chhabra would face allegations of gross misconduct, which could lead to dismissal. The Trust had wrongly refused, it was submitted, to invoke its Fair Blame procedure to address breaches of patient confidentiality, which were admitted. Further, a conduct hearing should not be held while the NCAS inquiry was ongoing. Any disciplinary hearing should have available to it the fullest possible picture of Dr Chhabra's circumstances and practice. Further, what was proposed, in the letter of 12 August 2011, to be placed before the disciplinary panel went beyond what could properly be alleged on the basis of Dr Taylor's report to the case manager.
The procedure followed
6. That was and is the outline of Dr Chhabra's case. It is necessary to consider the letter of 12 August 2011 and to consider it in the context of the Trust's disciplinary policies and procedures. The letter was written by Dr Broughton to Dr Chhabra's solicitors:
"I can confirm I have now had an opportunity to consider both Dr Taylor's investigation report and Dr Chhabra's response to that report, including the attachments to your letter of 29th July. Having done so I am writing to formally advise you of how I intend to progress matters.
It is clear the investigation report highlights serious concerns regarding Dr Chhabra's conduct in relation to a number of serious breaches of confidentiality.
The report also raises concerns regarding capability in relation to the inability to communicate effectively with colleagues and/or patients and ineffective clinical team working skills.
The issues of conduct and capability are unrelated and the conduct allegations are straightforward and discrete. I am therefore proposing to deal with them under the conduct procedure. The capability issues will require the involvement of NCAS and I will write to you separately to confirm how I intend to proceed with them. It is necessary to resolve the conduct issues, one way or another, before moving on to consider how we should address the capability concerns.
The breaches of confidentiality set out in the investigation report and indicated in the terms of reference points 1. and 2. are potentially very serious allegations of misconduct, falling within paragraph 8.4 of Trust policy D4;
8.4 Gross Misconduct
8.4.1 Some instances of misconduct/poor performance will be so serious as to potentially make any relationship and trust between the Trust and the employee impossible. These fall within the category of gross misconduct and would typically include:
Serious breaches of Information Governance with regard to Data Protection, Confidentiality and Information Security;
As a result these allegations will be considered under the Trust's D4 policy and a panel will be arranged as per that procedure. The allegations to be considered are as follows:
1. Dr Chhabra breached patient confidentiality whilst reading notes and discussing patients whilst on public transport, full details of which appear in the investigation report.
2. Dr Chhabra undertook dictation on at least two occasions whilst completing mental health tribunal reports whilst on public transport, details of which appear in the investigation report.
3. Dr Chhabra whilst travelling to work on public transport would often call her secretary to discuss patient related matters breaching confidentiality, details of which appear in the investigation report."
[There followed an allegation, subsequently rejected by Dr Taylor in a second report of 16 November 2011, about alleged removal of documents from Broadmoor.]
"Due the seriousness of the conduct allegations detailed above, I must advise Dr Chhabra that as these matters are being considered as potential gross misconduct the sanction of dismissal is an option for the disciplinary panel.
As per the Trust's disciplinary procedure Dr Chhabra is entitled to bring along a trade union representative or work colleague to that hearing.
I am now in the process in arranging panel members to hear the case. I will be in contact with you shortly to confirm the panel and agree dates with Dr Chhabra for the hearing, which I will set aside a half day for.
I understand this decision will be disappointing for Dr Chhabra and as per previous correspondence should she wish to seek support from our Staff Support Team or Occupational Health, please let me know.
If you have any questions regarding the above please do not hesitate to contact me."
7. In evidence, Dr Broughton stated:
"I considered that it was necessary to resolve the conduct issues, one way or another given their seriousness, before the capability concerns could be resolved."
A panel has been appointed. It consists of a consultant in the same discipline as Dr Chhabra and two other persons.
8. There are two sections to Dr Taylor's investigation report of 15 June 2011. The first, to which reference was made in the 12 August letter, dealt with confidentiality and, the second, with a separate complaint about Dr Chhabra's conduct. In her report, Dr Taylor stated, in relation to the first issue:
Ms Jo Leech, Head of Secure Services Policy at the Department of Health, wrote a letter expressing concern regarding breaches of patient confidentiality to, initially, the security department at Broadmoor Hospital, which was then forwarded on to the Medical Director at West London Mental Health. Her letter to the Trust is dated 2 December 2010. She had described having been on a train on the 24 November 2010 and had overhead a conversation by two doctors. One of the doctors was reading a medical report on a patient whose name and details could be clearly identified. It was clear from the conversation between the two doctors that they worked at Broadmoor Hospital.
4.2 In interview and in her original letter Ms Leech described the circumstances of the railway journey. She had been sitting directly opposite two females who were talking and she became aware of the conversation because of the mention of Broadmoor Hospital and Dr Gwen Adshead. Ms Leech had previously worked at the hospital. During the train journey one of the doctors, now identified as Dr Chhabra, read reports on a patient. She had been holding them on her lap with an A4 pad of paper and had turned pages in a way that Ms Leech could clearly read the name (Mr E). She was also able to see the Section under which he is detained and other details including that this was a CPA report. Ms Leech reported that the train was crowded at the time and Dr Chhabra had this information on her lap for the most of the journey. Dr Chhabra's travelling companion also had documents but these were held close to her and no information was visible and during the journey she did place them in a bag. Ms Leech was with a colleague on the train journey and neither of them said anything to Dr. Chhabra at the time.
4.3 In addition to Ms Leech's complaint a member of secretarial staff had become anxious about confidentiality when she had been typing two tapes of Dr Chhabra's that included sounds consistent with a railway journey. The tapes lasted approximately 13 and 17 minutes and has now been typed with the sounds inserted. I have not listened to the tape myself.
4.4 Jenny Meredith (Dr Chhabra's previous PA) also stated that Dr Chhabra made telephone calls to her while she was on her journey to work during which patient information would be discussed. She also reported that Dr Chhabra took out notes from the hospital in order to complete work at home.
4.5 In interview with Dr Chhabra she admitted that she normally read notes on the train on her way to work but when no-one was sitting near her. She stated that on her way to work the train would often be empty. However, she did admit to reading the CPA notes on patient Mr E whilst on the train journey in November 2010. She was unaware of who was sitting opposite her but she was aware that the train was full. She had not been aware that the patient's name was visible but accepted Ms Leech's account. She did not appreciate at the time that her practise compromised confidentiality. Dr Chhabra also admitted to dictating two reports on the train. She explained that this occurred in one week when she had felt pressured by work and wanted to have reports completed in good time. She believed that she had ensured that there were no passengers close by. On the issue of Dr Chhabra making telephone calls to work, Dr Chhabra believed that these were not made in public places but in her own car. She was of the opinion that these were usually diary checks and lasted approximately less than a minute. She denied that she had discussed patient information to secretarial staff whilst in public places.
4.6 Dr Chhabra has admitted to breaching patient confidentiality on two occasions by; 1. having patient documents clearly visible in a public environment and 2 dictating two reports which included patient sensitive information in a public arena. I would further conclude Dr Chhabra would have had to refer to patient information whilst undertaking this dictation. On that basis Dr Chhabra did not therefore make appropriate efforts to protect the patient's confidentiality. This is a breach of the GMC good medical practice guidance, particularly paragraphs 21(d) and 37. There is obviously a difference of opinion with respect to the telephone contact between Dr Chhabra and her PA with respect to the content of those discussions and when these discussions took place. Dr Chhabra stated that she has subsequently completed the online information governance training, however, she had previously attended Trust induction programmes which would have reminded her of information governance. Confidentiality is a clear responsibility of all those working within the healthcare professions and is a responsibility of all doctors as outlined in GMC's good medical practice. The investigation therefore upheld the first two complaints."
It was envisaged, in the second section of the report, that the capability issues would involve the participation of NCAS.
9. In her summary Dr Taylor stated, at paragraph 7.1:
"In summary I have been asked to investigate a number of complaints about Dr Chhabra. The first of these complaints was concerning breaches in confidentiality. The investigation has found that these complaints can be upheld and Dr Chhabra has breached patients' confidentiality through the reading of notes and dictation in public areas on more than one occasion. Due to this and the nature of the working environment and patients at Broadmoor this is a serious breach of the GMC guidelines on confidentiality."
10. The GMC's publication Good Medical Practice provides, at paragraph 21, cited by Dr Broughton:
"To fulfil your role in the doctor-patient relationship you must:
(d) respect patients' privacy and right to confidentiality."
The document also provides that, where the word "must" is used, an "overriding duty or principle" is involved.
11. Mr Wishart, Associate Director of HR (Human Resources) in the Trust, had become involved in the procedure. Such involvement by HR is contemplated in the policies. A request was, however, made that Mr Wishart should have no further part in the proceedings as an HR advisor and should be replaced. It was agreed in writing on 24 February 2011 that he would play no further part in the investigation process. Notwithstanding that agreement, Dr Taylor gave a draft of her report to Mr Wishart who made alterations to it. Dr Broughton said in evidence that his decisions would have been the same without the alterations. It has to be added that Dr Taylor did accept the amendments, or some of them, and on 15 June submitted, as her report, a somewhat revised report to the case manager.
12. Following submission of her report, and following Dr Broughton's decision, there was further communication between Dr Taylor and Mr Wishart. That was not disclosed at the time. Dr Taylor stated:
"I think your decision to separate the two issues is absolutely right. The NCAS solution is excellent - I had thought of that but was not sure that solutions were my remit. I really hope that she can see that as a positive way forward. The confidentiality issues have to be taken more seriously and addressed through the right routes- I was concerned that the capability issues would muddy the waters. I hope her solicitors see that you are being reasonable and trying to support her. Do you have any idea of timescales for the hearing- my diary is filling up- lots of shenanigans at work. There are some dates I will definitely not be available."
13. On 29 September 2011, Dr Wee, chair of the LNC, described by the judge as the staff side of the procedures, wrote to Dr Broughton. The judge cited the letter at length. Dr Wee expressed the opinion that "although the breach of confidentiality has been described by the Trust as a conduct issue, underlying factors involved competence and therefore capability leading to the doctor's behaviour." Dr Wee accepted that the respondent "had demonstrated poor insight and awareness about her actions and their potential implications but has since admitted responsibility". Dr Wee proposed referring the confidentiality issues to the GMC, a proposal not pursued by Mr Sutton.
14. Shortly after receipt of Dr Taylor's report, solicitors on behalf of Dr Chhabra wrote to the Trust. As found by the judge, Dr Chhabra stood by the admissions and acknowledgements in relation to the breaches of confidentiality set out in section 4 of Dr Taylor's report. It was also stated that Dr Chhabra deeply regretted her actions, had learned, and would never do it again. An apology was offered.
15. Dr Chhabra admits the first two allegations in the letter of 12 August, as detailed in the investigation report, but disputes the third. Mr Sutton QC for Dr Chhabra, does not challenge the accuracy of the detail in the report about the first two allegations and accepts, in relation to the third and disputed allegation, that the report reveals a prima facie case of misconduct.
16. Dr Chhabra objected to Dr Broughton's decision to refer her case to a disciplinary panel and brought a grievance, under the Trust's procedures, in relation to the proposed reference. This grievance was not upheld either on a first consideration or on appeal.
17. Reference was made to a Department of Health document entitled "Maintaining High Professional Standards in the Modern NHS" (11 February 2005). The former distinction between personal and professional misconduct (HC90(9)) was abolished and the employing Trust was to be "squarely responsible for the disciplining of its medical and dental staff - not outsiders." It is stated, at paragraph 4 of the section headed "Background":
"The new approach recognises the importance of seeking to tackle performance issues through training or other remedial action rather than solely through disciplinary action. However it is not intended to weaken accountability or avoid disciplinary action where there is genuinely serious misconduct."
Some of the cases cited involved consideration of the now replaced procedures.
18. Pursuant to that policy statement, the Trust issued, in March 2007 a document entitled "Policy for handling concerns about a doctor's performance (including guidance on disciplinary procedures)" (D4A). That provided, in its introduction:
"This is an agreement between West London Mental Health Trust and the Local Negotiating Committee ("LNC") outlining the employer's procedure for handling concerns about doctors' conduct and capability. It implements the framework set out in 'Maintaining High Professional Standards in the Modern NHS', issued under the direction of the Secretary of State for Health on 11 February 2005.
This new procedure replaces the current profession specific disciplinary procedures contained in circular HC(90)9, as well as the Special Professional Panels ("the three wise men") covered in HC(82)13 and the right of appeal to the Secretary of State held by certain practitioners under paragraph 190 of the Terms and Conditions of Service has been abolished.
Should this policy be amended to reflect any future national advice or guidance, this will only be done by the agreement of the LNC.
This procedure should be read in conjunction with the Trust's disciplinary policy, D4."
D4A continued, at paragraph 1.8:
"The first task of the case manager is to identify the nature of the problem or concern and to assess the seriousness of the issue on the information available and the likelihood that it can be resolved without resort to formal disciplinary procedures."
Paragraph 1.11 provides:
"Having discussed the case with the NCAS, the case manager will decide whether an informal approach can be taken to address the problem, or whether a formal investigation will be needed."
19. At paragraph 1.12, it is added:
"Where it is decided that a more formal route needs to be followed (perhaps leading to conduct or capability proceedings) the Medical Director will, after discussion between the Chief Executive and Director of Human Resources, appoint an appropriately experienced or trained person as case investigator. The seniority of the case investigator will differ depending on the grade of practitioner involved in the allegation."
It was on that basis that Dr Taylor was appointed as case investigator. Subsequent paragraphs in the policy deal with the case investigator's role.
20. At paragraph 1.13, it is stated:
"The case investigator:
- Is responsible for leading the investigation into any allegations or concerns about a practitioner, establishing the facts and reporting the findings;
. . .
- Will ensure that there are sufficient written statements collected to establish a case prior to a decision to convene any disciplinary panel, and on aspects of the case not covered by a written statement, ensure that oral evidence is given sufficient weight in the investigation report."
21. Under the heading "The Investigation" it is stated:
"1.14. The case investigator does not make the decision on what action should be taken nor whether the employee should be excluded from work and will not be a member of any disciplinary or appeal panel relating to the case.
1.15. The practitioner concerned must be informed in writing by the case manager, as soon as it has been decided, that an investigation is to be undertaken, the name of the case investigator and made aware of the specific allegations or concerns that have been raised. The practitioner must be given the opportunity to see any correspondence relating to the case together with a list of the people that the case investigator will interview. The practitioner must also be afforded the opportunity to put their view of events to the case investigator and given the opportunity to be accompanied.
. . .
1.17. The case investigator has discretion on how the investigation is carried out but in all cases the purpose of the investigation is to ascertain the facts in an unbiased manner. Investigations are not intended simply to secure evidence against the practitioner as information gathered in the course of an investigation may clearly exonerate the practitioner or provide a sound basis for effective resolution of the matter.. . .
1.19. The case investigator will complete the investigation within 4 weeks of appointment and submit their report to the case manager within a further 5 days. The report of the investigation will give the case manager sufficient information to make a decision whether:
- There is a case of misconduct that should be put to a conduct panel;
- There are concerns about the practitioner's health that should be considered by the NHS body's occupational health service;
- There are concerns about the practitioner's performance that should be further explored by the NCAS;
- Restrictions on practice or exclusion from work should be considered;
- There are serious concerns that should be referred to the GMC;
- There are intractable problems and the matter should be put before a capability panel;
- No further action is needed."
22. The procedure for investigations is also specified at paragraph 2 of Appendix 6 to D4:
"2.1 to establish as far as practicable what has happened and why.
2.2 to ensure future decisions are rational and made on the basis of evidence.
2.3 to meet the requirement to demonstrate that natural justice has been observed.
2.4 to form the basis of any case presented to a Disciplinary Panel.
2.5 to ensure decisions made by the Trust are capable of scrutiny either through an internal appeal or by an Employment Tribunal or court of law."
It was on that basis that Dr Taylor reported to the case manager, Dr Broughton.
23. Capability issues are dealt with separately from conduct issues at part 4 of D4A. They are defined at paragraph 4.1:
"There will be occasions where the Trust considers that 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. These are described as capability issues. Matters that should be described and dealt with as misconduct issues are covered in part 3 of this procedure."
Paragraph 4.5 provides:
"It is inevitable that some cases will cover both conduct and capability issues. It is recognised that these cases can be complex and difficult to manage. If a case covers more than one category of problem, they should usually be combined under a capability hearing although there may be occasions where it is necessary to pursue a conduct issue separately. Although it is for the Trust to decide upon the most appropriate way forward having consulted the NCAS in the event of a dispute the practitioner may make representations to the designated board member. The individual is also entitled to use the Trust's grievance procedure if they consider that the case has been incorrectly classified. The Individual may also seek advice from the Chair of the LNC with respect to their concerns."
24. The disciplinary policy (D4) provides:
"1.1 The Policy applies to all staff of the West London Mental Health NHS Trust and has been prepared in consultation with the appropriate Trade Unions.
1.2 Purpose of Policy
1.2.1 The purpose of the Disciplinary Policy is to ensure that, as far as is possible, disciplinary (or potential disciplinary) matters are dealt with quickly, consistently and reasonably, taking into account the individual circumstances of each case. The intention is that, wherever possible, disciplinary outcomes or sanctions lead to an improvement in conduct in such a way that subsequent disciplinary action is unnecessary."
Amongst the "principles" to be applied, it is stated in Part 3:
"3.5 No disciplinary action will be taken against a member of staff until the case has been properly investigated. It may be appropriate for a member of staff to be suspended while an investigation takes place (see Section 7).
3.6 A member of staff who is the subject of formal disciplinary proceedings must:
- be told in writing of the complaint against them in advance of any disciplinary hearing;
- be provided with copies of any written evidence, including copies of witness statements and copies of the Management Investigation, forming the basis for the complaints;
- be given the opportunity to state their case and challenge any evidence before any final decision is made.
3.7 A member of staff under investigation for alleged misconduct or facing formal disciplinary proceedings has the right to be assisted/accompanied by an accredited trade union representative or a colleague who is also employed by the Trust. Both colleagues and accredited staff representatives are entitled to present evidence on behalf of the employee under investigation. However, there is an expectation that the employee under investigation will be required to respond, in person, to questions from the investigating officer during the investigatory process and from panel members at any subsequent hearing."
25. Under the heading "Standards of Conduct" it is stated, amongst other things, that employees of the Trust are expected to meet consistently high standards of personal conduct. They must:
"Ensure adherence to all Trust policies, especially in respect of the confidentiality of information relating to both patients and staff."
26. Section 13 deals with "Behaviour/Performance which may result in disciplinary action". It is stated, at 13.1:
"The following is detailed and wide - ranging in order to provide the optimum possible guidance to staff. It is not however exhaustive and staff must be aware that any behaviour which is not specifically mentioned below but which is a clear breach of the established standard of conduct expected of employees of the Trust, may still lead to disciplinary action."
At 13.4 "Gross Misconduct" is defined:
"Some instances of misconduct/poor performance will be so serious as to potentially make any further relationship and trust between the Trust and the employee impossible. These fall within the category of gross misconduct and would typically include:
theft, fraud, falsification of records (including eligibility to work);
unauthorised access to records;
assault or fighting, deliberate damage;
incapability through alcohol;
possession, or the use of, prohibited drugs;
serious negligence causing loss, injury or damage;
serious breaches of security;
serious breaches of the "Staff Charter – Rights & Responsibilities" or the "Code of Conduct for (senior) NHS Managers";
causing wilful damage to hospital property;
deliberate misuse of hospital equipment;
repetitive serious offences;
bullying and/or harassment;
failure to register with the appropriate professional body (where registration is mandatory);
refusal to undertake a reasonable management request;
a single very serious incident of poor performance."
27. At section 15 and Appendix 5, the "Fair Blame" procedure is described. It is stated that "a different formal procedure can apply when the potential conduct or performance issues which have arisen do not constitute serious or gross misconduct". In the Appendix, it is stated, at paragraph 1:
"A 'fair blame' approach to dealing with matters which might otherwise have been dealt with under formal Disciplinary Procedures reflects a desire on the part of the Trust and the trade unions to move towards a philosophy of personal responsibility, where mistakes are openly acknowledged, individual and organisational learning takes place and changes are made to behaviour and systems to avoid such errors in the future. This does not alter the existing responsibilities on managers and supervisors to continue to use best practice and other Trust policies to manage conduct and performance, and serious matters will continue to be dealt with under the formal Disciplinary procedure. The Fair Blame procedure will deal with appropriate matters of performance and conduct which do not constitute potentially serious or gross offences."
28. A procedure is set out and it is added at paragraph 3:
"Once the Investigation Report has been completed, the Commissioning Manager will determine whether there is a case to answer and the potential seriousness of the offence. Provided the Commissioning Manager concludes that the matter is not a potentially serious or gross offence, they will offer the opportunity to the employee for the matter to be dealt with through a 'Fair Blame' review."
A sanction may be awarded following a Fair Blame review but is limited to "the level of a first written warning, to be placed on file up to a maximum period of 12 months."
29. The procedure to be followed when a case is referred to a conduct panel (paragraph 1.19 D4A) is specified at paragraph 17 and following, including the composition of the disciplinary panel. There are detailed and predictable provisions for a quasi-judicial hearing which comply with the requirements of natural justice.
30. The outcome of the hearing and decision of the panel are specified at paragraph 21:
"The panel must primarily decide if, on the balance of probabilities, the offence did take place. If they are satisfied that it did and that misconduct is proved, the Panel conducting the hearing must, in deciding what action is appropriate, take into account the following:
- the employee's disciplinary record;
- any mitigating circumstances ;
- the nature and seriousness of the misconduct."
It is stated in paragraph 22.1.2:
"Subsequent action may include dismissal."
31. The judge correctly identified the issue in the first paragraph of his judgment:
"This is a claim for an injunction to restrain the defendant from going ahead with disciplinary charges relating to breaches of patient confidentiality while criticisms of the claimant are on foot in separate capability proceedings. Patient confidentiality is rightly viewed as a high priority by all concerned in this case. The public needs to be protected through professional standards which are maintained in relation to patient confidentiality."
32. That theme was maintained in the judgment, the judge, by reference to the evidence of Dr Broughton, stating, at paragraph 65:
"He comes across as a manager . . . who places great stock in confidentiality and a doctor's duty and he is right to do so."
At paragraph 84, the judge accepted the submission of counsel that "matters relating to confidentiality which emerged from the Taylor report are aptly described as conduct", though adding that they could also be described "as contributing to an analysis of her performance."
33. By way of commenting on Dr Taylor's report, the judge stated, at paragraph 40:
"Dr Taylor, where there was a dispute between two people about an event or a conversation, she was prepared to take the side of the practitioner unless there was clear evidence. Only a fragment of the allegations of breach of confidentiality was upheld by Dr Taylor and, as I see it, Dr Broughton did not appreciate the fine distinctions (yet distinctions they are) between what went to Dr Taylor and what came back from her."
34. The judge also stated, at paragraph 43:
"There was no finding by Dr Taylor that the claimant had breached patient confidentiality by discussing patients while on public transport."
I respectfully disagree with that particular conclusion. Dr Broughton was justified in concluding that Dr Chhabra was "discussing patients while on public transport" from the contents of Dr Taylor's report, at paragraph 4.2, of the conversation between the two females on the train.
35. At paragraph 85, the judge concluded, however, that:
". . . as a matter of construction of Dr Taylor's report, the charges do not bear the weight which Dr Broughton gives them . . . He simply did not see Dr Taylor's report in the correct light and therefore went ahead on the basis of an enlarged criticism of the claimant which Dr Taylor did not support."
36. The judge concluded, at paragraph 86:
"In my judgment, the claimant was entitled as a matter of contract to have these matters determined in a way which was not under a charge of gross misconduct for which she was dismissible. . . . it is not simply classifying these matters as conduct or even misconduct, it is whether the Trust was correct as a matter of law to categorise them as gross misconduct in the decision letter. In my judgment, it erred in so doing and was not entitled to enforce its right of discipline in respect of that."
Paragraph 87, the judge added:
"But, in my judgment, he [Dr Broughton] broke the claimant's contract when he levied these charges against her for they were not grounded sufficiently in the Taylor report."
37. Having stated "that ought to be an end to the case" the judge went on to consider whether the Trust was required, as a matter of contract, to put the conduct issue together with the capability issue into the capability procedure to be followed. Referring to paragraph 4.5 of D4A, the judge stated:
"In a case where the Taylor report showed some background, explaining the events relating to the breach of confidentiality, these matters were bound by 4.5 [of D4A] to be put through NCAS."
Believing that it would be Dr Taylor who would present the case against Dr Chhabra at the disciplinary panel, the judge concluded that:
"It would be difficult for Dr Taylor to present, in the light of the material disclosed in this case, a clear-cut case of gross misconduct."
38. The judge added, at paragraph 90 that "this case cried out for fair blame" and "could have been dealt with in a much more sympathetic way. . . . the fair blame procedure was available as of right to the claimant and the Trust should have activated it."
39. The judge set out procedural irregularities in the procedure followed by the Trust at paragraphs 62 and 63. The judge was prepared to categorise these as "minor". He stated, at paragraph 91:
"These are procedural breaches but they do not, in my judgment, count as an attack on the implied term trust and confidence in prejudgment of the case against the claimant."
40. Permission to appeal was given by Sir Stephen Sedley following an oral hearing. Sir Stephen attempted, with the assistance of the parties, to formulate a series of questions for consideration on the appeal.
41. For the respondent, Mr Sutton QC referred to the particularly serious consequences for a medical doctor which may follow from dismissal. Disciplinary procedures must be applied scrupulously and robustly. In Crawford v Suffolk Mental Health Partnership NHS Trust  EWCA Civ 138, 2012 IRLR 402, a case involving the conduct of nurses, Elias LJ stated, at paragraph 27:
". . . it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as is the case here, the employee's reputation or ability to work in his or her chosen field of employment is likely to be affected by a finding of misconduct."
He added, at paragraph 71:
". . . that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him."
42. Mr Sutton noted that the contract of employment between the parties stated, at paragraph 3, that "it is essential therefore that you and we work in a spirit of mutual trust and confidence" and, at paragraph 17, that "whenever possible, any issues relating to conduct, competence and behaviour should be identified and resolved without recourse to formal procedures." Referring to sections in the Employment Rights Act 1966 in a case involving a consultant surgeon, Mattu v The University Hospitals of Coventry & Warwickshire NHS Trust  EWCA Civ 641, Lord Dyson JSC, at paragraph 27, stated:
"The effect of sections 1 and 3(1) therefore, is that Parliament has decided, at least in most cases, that contractual force should be given to applicable rules and procedures."
That applies to D4 and D4A in this case, it was submitted, and that is not disputed.
43. Mr Sutton submitted that paragraph 1.13 of Policy D4A provides that the role of the case investigator is to establish the facts and report the findings. There was no scope for others, whether case manager or HR adviser, to modify or enlarge upon those findings. The case manager's decision on the future conduct of the case must be based on the report of the investigation alone. An employee is entitled to have the disciplinary case against her put on the basis of the investigator's findings. The scope of the charge cannot be expanded. The allegation about speaking on the telephone could not properly be added by Dr Broughton when Dr Taylor had made no finding of fact about it. Neither could Dr Broughton properly characterise Dr Chhabra's conduct as "wilful" when there was no such finding by Dr Taylor.
44. Further complaint is made, and legitimately made, that the HR manager involved, Mr Wishart having received a draft copy of Dr Taylor's report on 1 June 2011, made amendments to the draft. That was wrong in itself and also followed an undertaking given by the Trust that Mr Wishart was to play no part in the investigation after February 2011. It has only been in the course of proceedings that Dr Chhabra's solicitors have known of the proposed changes, described by counsel as "embellishments" and as "adding colour" to the Report (paragraph 11 above).
45. Mr Sutton submitted that the Trust's proposed course of action cut across the disciplinary procedures set out in D4A by requiring her to answer a charge of misconduct which the facts and findings of the investigation did not support. There was no material capable of founding a charge of gross misconduct. Similarly, an allegation of wilfulness could not be put. Moreover, all Dr Taylor's findings should have been put in her report and it was wrong for her to send a private message to Mr Wishart, expressing views (paragraph 13 above).
46. While acknowledging the judge's finding at paragraph 90, Mr Sutton relied on alleged faults in the decision making procedure. The first is that Dr Taylor had not used the expression "gross misconduct". The letter of 12 August 2011 refers to "potentially very serious allegations of misconduct" falling within the category of gross misconduct.
47. The second, and associated, complaint is that, in that letter, Dr Broughton quoted paragraph 8.4 of D4 in a form which did not come into operation until after November 2010. In the policy as it existed at that time, stated at 13.4, there was no specific reference to confidentiality under the heading "gross misconduct".
48. The third complaint is based on Dr Broughton's acceptance in cross-examination, as recorded by the judge at paragraph 50, that "gross misconduct as charged required wilfulness." The judge commented that "this case did not reach that level on its face, as Dr Taylor had not included any matter such as that." The judge referred to the definition of "wilful" by Lord Evershed MR in Wilson v Racher  ICR 428, when considering acts of disobedience by an employee:
"It does (in other words) connote a deliberate flouting of the essential contractual conditions."
49. Mr Sutton relied on Mezey v South West London & St George's Mental Health NHS Trust  EWCA Civ 293, 2010 IRLR 512, where disciplinary proceedings were proposed to be taken against a consultant psychiatrist. In a judgment with which Wilson LJ and Toulson LJ agreed, Ward LJ distinguished current procedures from those formerly followed under HC90(9), with its distinction between personal and professional conduct. A panel, chaired by Mr Robert Francis QC, had been convened to investigate the doctor's care of a patient. Ward LJ commented, at paragraphs 56 and 57, on the findings of the panel:
". . . If, as Francis found, her decision to grant unescorted leave was inappropriate, nevertheless "it did not amount to serious professional incompetence". In the light of those findings it seems to me that this is not a case "where there is genuinely serious misconduct" which permits a disciplinary hearing. Her capability to practise was not called in question by the Francis panel: on the contrary her competence was vindicated.
In my judgment the threshold for invoking any disciplinary procedure is not crossed and the Trust are not entitled to commence disciplinary action under Part IV."
Mr Sutton submitted that the threshold had not been crossed in the present case.
50. It was submitted that the role of the investigating officer was to establish the facts and report the findings (D4A paragraph 1.13). The investigating officer was also under a duty to weed out allegations which do not cross the threshold. Her findings, it was submitted, cannot be augmented by the case manager; the investigation report "forms the basis" for any allegations put. The case manager was required to be unbiased and his role was responsive. It was submitted that the current disciplinary procedure reflects a culture of disposing of difficulties without a formal disciplinary process.
51. To justify dismissal, repudiatory conduct would need to be shown, it was submitted. A realistic and proportionate view must be taken of the extent and degree of any breach of contract. The panel hearing was not a sufficient safeguard for an employed doctor. It was submitted that the letter of 12 August 2011 skewed and distorted the disciplinary process. The findings of the investigating officer were not properly analysed. Proper protection of the employee required a more interventionist approach by the court. If ever there was a case for the fair blame procedure this was it, it was submitted.
52. The employee must be enabled to ascertain from codes of practice what he is and is not permitted to do in this case, Dr Chhabra did not know what level of seriousness would be attributed to her conduct.
53. It was Dr Taylor who should have conducted any grading exercise and the case manager could not "ratchet up" the default. The conduct of Dr Chhabra should be considered holistically and that involves a consideration of the background, including any clinical underperforming, it was submitted. The presumption in paragraph 4.5 of D4A should apply and conduct considered along with capability. The NCAS report could inform the finding of the conduct panel.
54. For the Trust, Miss McNeill QC submitted that the dispute was a purely contractual one and the only question is whether it was an express (or implied) term of the contract of employment that the Trust was not entitled to put the dispute between it and Dr Chhabra to a conduct panel. Much turns on the respective roles of the investigating officer, case manager and disciplinary panel. The need for doctors to respect patients' privacy and right to confidentiality is fundamental, it was submitted. That duty has particular importance at hospitals such as Broadmoor where patients with criminal convictions were detained.
55. In this case, there were serious breaches of confidentiality, which the case manager was entitled to regard as requiring a determination by a conduct panel, it was submitted. Not only was it appropriate for there to be reference to such a panel but it would be unfair to both parties to proceed to a capability assessment covering a range of issues, including team working and leadership, while this discrete conduct issue was unresolved. The situation was comparable, it was submitted, with Hussain v Surrey & Sussex Healthcare NHS Trust  EWHC 1670 (QB) where Andrew Smith J, having considered paragraph 4.5 of D4A and the facts of that case, stated:
"The reasons for dealing separately with the allegations about misconduct were and are, to my mind, overwhelming."
56. At paragraph 126, Andrew Smith J stated:
"The procedure does not require that there should have been an investigation of precisely the allegation that is later the subject of a charge against the practitioner. That would be unworkable, and is not demanded by the paragraphs of the Practitioners Disciplinary Procedure upon which Dr Hussain relies. Paragraph 1.15 requires that the practitioner be made aware of 'the specific allegations or concerns that have been raised', but that refers to the allegations and concerns at the time of the investigation: it does not mean that the allegations and concerns cannot be developed, modified or changed by the time that a case of misconduct is referred to a disciplinary panel. Paragraph 1.19 contemplates that the case manager will decide whether 'There is a case of misconduct that should be put to a conduct panel', not whether the precise allegation or concern that was originally raised should be so referred. What is required is that the investigation sufficiently examines the matter for the case manager to be able fairly to decide on the basis of the investigator's report how the matter should be handled. In my judgment, in this case the investigations were sufficient for that purpose."
57. Miss McNeill also relied on the decision of Beatson J in Makhdum v Norfolk and Suffolk NHS Foundation Trust (25.10.12, note of judgment) [case digested at  All ER (D) 278 but not so as to cover these points] where a consultant psychiatrist sought to restrain by injunction the Trust's intention to pursue disciplinary proceedings. Refusing the application, Beatson J stated that the parties had agreed for a process and part of that included letting the process take its course. It was a contractual process. It is not the investigator who makes the decision, he is simply preparing the case and the case manager had a broad discretion as to how to proceed at the conclusion of the investigations.
58. Miss McNeill submitted that it was for the investigating officer to investigate the facts, making findings of fact where she considered it appropriate, and for the case manager to decide what, if any, charges should be brought. There was no breach of contract in classifying the admitted misconduct as gross misconduct. Dr Broughton was also entitled, having considered Dr Taylor's report, to classify the conduct as "wilful". In evidence, Dr Broughton defined what he meant by "wilful" as being "not ignorance, accident or compulsion." Dr Chhabra's conduct could not be described other than as wilful, it was submitted.
59. The allegations made in the letter of 12 August 2011 arise out of Dr Taylor's report and the case manager was entitled to make them. Under cross-examination by Mr Sutton, Dr Broughton stated:
"My wording was a reflection of the seriousness of those actions and I felt they would only properly be dealt with by being heard by a disciplinary hearing".
60. The issue is a narrow one: should the court intervene, at this stage, to prevent the disciplinary procedure adopted by the Trust from operating? Was Dr Broughton in breach of contract, on receipt of the investigating officer's report, in deciding on 12 August 2011 to convene a disciplinary panel to consider allegations of breach of confidentiality by Dr Chhabra and to consider them as potential gross misconduct? Mr Sutton submitted that the decision expressed in the letter of 12 August 2011 was "the pivotal decision" and I agree.
61. I do not consider that Dr Wee's claim in an e-mail that Dr Taylor had told her orally that it was an issue of "poor medical performance" assists the respondent. That expression, if used, was a very general one and cannot be taken to amount to a reversal of Dr Taylor's findings in her report, or her opinion, expressed in writing, that the decision to separate the two issues was "absolutely right".
62. I would not be prepared to describe, as did the judge, the procedural irregularities as "minor" and I take a more serious view. Mr Wishart should not have been involved in the procedure after February 2011. However, I have regard, when assessing the issue, to the judge's conclusion on the lack of significance of these faults. Dr Taylor did submit the final version of the report as her own and her good faith is not challenged. I am not prepared to impugn Dr Broughton's decision on the basis of Mr Wishart's wrongful involvement in the procedure, or Dr Taylor's further comments, unwisely expressed, in an e-mail. These lapses do not, in my judgment, have such an effect on the decisions of the case manager as to entitle or require the court to intervene and quash the decision to refer to a disciplinary panel.
63. That the court may intervene in an appropriate case was made clear in Edwards v Chesterfield Royal Hospital NHS Foundation Trust; Botham v Ministry of Defence  2 AC 22, per Lord Dyson, at paragraph 44. He stated that it was open to an employee to seek an injunction to stop the employer starting a disciplinary process in breach of the express contractual terms of the contract of employment.
Lord Dyson added:
"The grant of injunctive or declaratory relief for an actual or threatened breach of contract would not jeopardise the coherence of our employment laws and would not be a recipe for chaos . . ."
64. It is for the court to decide whether the procedure followed has been lawful and, if Andrew Smith J was expressing a different view in paragraph 110 of Hussain, I respectfully disagree. In Skidmore v Dartford & Gravesham NHS Trust  ICR 721, Lord Steyn, at page 728G, stated:
"If there has been a failure by the Trust in adopting the wrong procedure, Mr Skidmore is entitled to appropriate relief."
65. In analysing the disciplinary procedures, D4A and D4 should be read together and contractual force should be given to the applicable rules and procedures. Where there were relevant and material issues of fact, it would be for the independent panel to resolve them. The panel, and not the investigating officer, was the appropriate forum for resolving factual issues.
66. Paragraphs 1.14 to 1.19 of D4A both require the investigating officer to provide sufficient information and leave it to the case manager to decide whether there is a case of misconduct that should be put to a conduct panel. The principles stated in Part 3 of D4 include predictable provisions to ensure that the disciplinary procedure is fair and it plainly contemplates a quasi-judicial procedure before a panel during which employees may state their case and challenge evidence against them.
67. While the judge did criticise the introduction of the concept of 'serious' or 'gross' misconduct into the 12 August 2011 letter, he made no specific criticism of the inclusion in the letter of a paragraph of D4 not yet in force, or the absence of a specific inclusion of breach of confidentiality in the list at 13.4 in the policy document in fact in force in November 2010. That in my view was not inappropriate. Paragraph 13.1 of the D4 operative at the time the breaches occurred made clear that the list in paragraph 13.4 was not exhaustive and also that behaviour "which is a clear breach of the established standards of conduct expected of employees of the Trust" may lead to disciplinary action. The GMC document establishes the fundamental duty to preserve patients' confidentiality and the inaccurate reference in the letter was not material. D4 provides under the heading "Standards of Conduct" that employees are expected to meet consistently high standards of personal conduct ensuring adherence to all Trust policies, "especially in respect of the confidentiality of information relating to both patients and staff."
68. While the "Fair Blame" procedure is undoubtedly encouraged, the documents repeatedly reserve a power to refer disciplinary matters to a conduct panel. In Appendix 5 of D4 it is stated that "the Fair Blame procedure will deal with appropriate matters of performance and conduct which do not constitute potentially serious or gross offences". Responsibilities with respect to "serious matters" and to "potentially serious or gross offences" are repeated at paragraphs 1 and 3 of Appendix 5 of D4. Fair Blame review may be appropriate "provided the Commissioning Manager concludes that the matter is not a potentially serious or gross offence". In the Department of Health document of 11 February 2005 it is provided that "it is not intended to weaken accountability or avoid disciplinary action where there is genuinely serious misconduct".
69. Part 4 of D4A, dealing with capability issues, provides, at paragraph 4.1, that it is in Part 3 that "matters that should be described and dealt with as misconduct issues are covered." Paragraph 4.5 recognises that "there may be occasions where it is necessary to pursue a conduct issue separately." Reference is made in that paragraph to the right of the employee "to use the Trust's grievance procedure if they consider that the case has been incorrectly classified." This right was exercised by Dr Chhabra, though the result was unfavourable to her.
70. The second group of complaints relate to the terminology used in the decision letter of 12 August 2011. The role of the case investigator emerges from paragraphs 1.13 to 1.19 of D4A. The case investigator has a duty to ensure that she collects sufficient information, based on both written and oral evidence, and then to establish the facts and report the findings. The case investigator does not make the decision on what action should be taken (paragraph 1.14). It is for her to decide how the investigation is carried out but she must conduct it in an unbiased manner and seek evidence in favour of the employee as well as evidence that may be against her (paragraph 1.17). A case investigator's duty is to report, giving the case manager sufficient information to make a decision as to what action should be taken (paragraph 1.19).
71. It is then for the case manager to make a judgment as to what action to take. Under paragraph 1.19 of D4A, it is for the case manager to make a decision whether there is a case of misconduct that should be put to a conduct panel. I do not consider that the reference to the case investigator "establishing the facts" disqualifies the case manager from taking action on a complaint made and supported by evidence reported, even if denied, and with no finding of fact by the investigator. A case investigator may make findings of fact, as she did in this case, on the basis of admissions and, also in relation to one complaint, where she considered the evidence supporting the claim to be insufficiently strong.
72. The procedure is for a conduct panel to make findings of fact. That is the role of the panel and it is not confined to considering findings of fact already made by the case investigator. The case investigator reports and the panel decides. Where there are relevant and substantial issues of fact, the panel is clearly the appropriate body to make the findings of fact and the procedure under which it operates provides appropriate safeguards. It would be to diminish the contemplated role of the panel if it was precluded from making findings of fact on the evidence presented to it. In context, I read the expression used in the first part of paragraph 1.13 of D4A as a duty to establish and report the available evidence.
73. The case manager is required to exercise judgment as to the seriousness of the alleged misconduct and whether a panel hearing is required. The case manager plainly had the case investigator's report, the evidence reported and the findings made, well in mind. It was for him to make a judgment whether the conduct reported was sufficiently serious to require a panel hearing.
74. I accept that there is a threshold to be crossed, in terms of seriousness, before a decision to refer to a panel can properly be taken. I do not consider that the introduction of words such as "gross" and "wilful" are beyond his powers, provided evidence in the investigator's report justifies their use. I agree with the approach of Andrew Smith J in Hussain on that point and with that of Beatson J in Makhdum.
75. The appeal, in my view, turns on that issue. On the facts and evidence available, was the case manager justified, in the circumstances, in convening a disciplinary hearing? Was the conduct reported of a nature and of sufficient gravity to justify that course? The case manager had of course to bear in mind that there were other complaints, apart from the conduct issue identified, which required consideration in some way. Dr Broughton was, in my judgment, entitled to conclude that the threshold for a disciplinary hearing was crossed.
76. If it were to come to sanction, considerable mitigation is available on Dr Chhabra's behalf including a heavy work load and a glowing personal reference. The prospect of such mitigation being advanced, at that stage, does not in my view necessarily defeat the decision to hold a disciplinary hearing in relation to the alleged breaches. It does not follow from the existence of other issues or from the mitigation available, which may be strong mitigation if sanctions are to be applied following a disciplinary hearing, that the decision to refer a serious allegation of breach of patient confidentiality, involving patients at Broadmoor, to a disciplinary panel was in breach of contract or otherwise unlawful.
77. Dr Wee will of course be able to give evidence for Dr Chhabra but I find nothing in Dr Wee's letter which provides significant support for a claim that Dr Broughton acted in breach of contract or unlawfully in referring the confidentiality issue to a conduct panel. Dr Wee herself proposed a reference to the GMC, thereby recognising the conduct dimension.
78. In my judgment the decision was justified on the basis of the disciplinary procedures and the evidence. Patients' right to confidentiality is fundamental in the Health Service and must be respected by doctors and other staff. Dr Broughton was entitled to regard a breach or breaches of it in a public place by a consultant at Broadmoor as a potentially serious offence. The breaches alleged, as described in the case investigator's report, were such that a decision to convene a disciplinary panel was justified. The court should not in my view intervene to prevent it.
79. I would allow this appeal and quash the declaration and injunction made by the trial judge.
Lord Justice Jackson :
80. I agree.
Lord Justice Treacy :
81. I also agree.