Injunction to prevent disciplining a consultant law

COURT OF APPEAL GRANTS INJUNCTION TO PREVENT NHS TRUST DISCIPLININGCONSULTANT

A legal update on the court of Appeal’s decision in Mezey v South West London & St George’s Mental Health NHS Trust [2010] EWCA Civ293.

Background

Where an employer has failed to follow a contractual disciplinary procedure, an employee’s remedy for breach of contract will usually be limited to loss of earnings for the period of time it would have taken to operate the procedure correctly (Gunton v Richmond Upon Thames London Borough Council 1980 ICR 755). Previous attempts have been made (unsuccessfully) by employees to seek injunctions in relation to breach of the disciplinary procedure, both while employment was continuing (Ali v London Borough of Southwark [1988] IRLR100) and once employment had ended.

In the case reported below, the employer appealed to the Court of Appeal when an employee was successful in obtaining an injunction to prevent her employer, an NHS Trust, from disciplining her. The employee in this case had previously succeeded in her application for an injunction to prevent the Trust from suspending her. Notably, the cases to date in this area have concerned public authorities, reflecting the fact that their complex contractual disciplinary procedures are likely to make them vulnerable to this kind of claim for breach of contract.

Facts

Dr Mezey was employed as a consultant forensic psychiatrist by the South West London and St George’s Mental Health Trust (the Trust). As well as being a clinician in the field of mental health, Dr Mezey also undertook teaching duties at the medical school. In September 2004, one of her patients (JB) absconded during a stay in a secure mental healthunit and murdered a man in Richmond Park. This prompted the hospital to set up an inquiry into what, if anything, had gone wrong in the care and treatment of JB so as to lead to this tragic incident. The inquiry was critical of Dr Mezey’s conduct and role in the care of JB; as a result, the Trust decided to instigate disciplinary proceedings against her.

Two contractual disciplinary procedures relevant

At the time the disciplinary investigation was launched, the relevant contractual procedure was “Disciplinary Procedures for Hospital…Staff HC(90)9” (HC) (consisting of different procedures which were to be adopted, depending upon whether the issue related to conduct or competence). By the time the Trust decided to take disciplinary action against Dr Mezey, this had been superseded by a contractual procedure called “Maintaining High Professional Standards in the modern NHS” (MHPS) (this also consisted of distinct parts relating to conduct and capability). For the purposes of the proceedings,the relevant part of the MHPS was “procedures for dealing with issues of capability”. There were different “thresholds and entry points” for the two procedures. For example, HC provided that if there was a finding of fault by an investigatory panel, the Trust could decide what disciplinary action it was appropriate to take.Under MHPS, the decision to investigate could only be taken after consultation with a national body, the National Clinical Assessment Authority (NCAA). In order for the capability procedure to be invoked under MHPS, the practitioner must be shown to have lacked knowledge or ability, or to have rendered consistently poor performance.

Investigatory panel is set up

Pursuant to HC, an investigatory panel was convened (the Francis panel) to conduct an inquiry into Dr Mezey’s care of JB, including her alleged failure to recognise the level of risk associated with the deterioration in his mental state. A particular focus of the inquiry was the appropriateness of thedecision by Dr Mezey to allow JB a period of unescorted leave without having assessed him first (it was during this unescorted leave that JB absconded).Under HC the panel had to report in two stages, first to makefindings of fact and then to give a view on whether the practitioner was at fault. The Francis panel reported in March 2008 and its principal conclusions were that Dr Mezey’salleged failings, including the decision to grant JB unescorted leave without assessing him, did not amount to serious professional incompetence or misconduct. While Dr Mezey was at fault in making aone-off mistake in clinical judgment, it was in accordance with a range of opinion that might be held by competent professionals in the field.

Trust attempts to setup disciplinary hearing

Notwithstanding the findings of the Francis panel, the Trust attempted to set up a disciplinary hearing in June 2008. It wished to consider disciplining, including possibly dismissing Dr Mezey, for allowing JB to have unescorted leave without assessment and also for failing to submit reports to the Home Office about the level of risk posed to the public by JB. This led to Dr Mezey seeking injunctive relief prohibiting the Trustfrom holding a disciplinary hearing and from continuing to exclude her from clinical work. The Trust reconsidered its position, making clear that Dr Mezey would be allowed to resume clinical duties and also that it would exclude dismissal from its range of possible sanctions. However, the Trust maintained its stance that it would pursue some formal action, in accordance with the MHPS capability procedure. Dr Mezey proceeded with her application for an injunction.

High Court grants injunction against the Trust

In December 2008, the High Court decided to grant an injunction, restraining the Trust from pursuing disciplinary action against Dr Mezey. The basis of its decision was that none of the sanctions contemplated by MHPS (in effect, forms of warning that an improvement was required) were appropriate, given the findings of the Francis Report which generally endorsed Dr Mezey’s competence. Although, in principle, it might be appropriate to imply a right for an employer to issue a reprimand, this could not be said to apply in this case where the fundamental competence of the employee was not an issue.

The appeal

The Trust appealed against the decision by the High Court to grant an injunction. The Trust argued that it was wrong for the court to have interfered in what should essentially have been a matter for the employer, particularly given the specialist nature of the Trust’s panel. Dr Mezey’s main argument was that there was no contractual basis for the capability procedure being invoked, given that the Francis report found that there was no issue of lack of capability and the MHPS capability procedure required performance to be fundamentally flawed before it could be invoked.

Decision

The Court of Appeal upheld the decision of the High Court to grant in injunction. It would be a breach of contract for the Trust to attempt to hold a capability hearing under MHPS. The procedure was designed to deal with issues where the doctor’s capability to practise was in question and this could not be said of Dr Mezey. On the contrary, the findings of the Francis panel vindicated her competence. Further, before the capability procedure could be invoked, the NCAA had to be consulted and no such consultation had taken place here.

Comment

This is a significant development, although it arises from a set of unusual circumstances. While public sector employers are more likely than most to be fettered by contractual disciplinary procedures, this is unlikely to be the case for most private employers. Nevertheless,it is a reminder that injunctive relief may be granted to the employee.