Lasting Powers of Attorney: recent key developments
Judgment date: 25 January 2013
Court of Appeal quash declaration and injunction granted by High Court, finding that the disciplinary panel appointed by the Trust are justified in investigating allegations that C breached patient confidentiality.
C was employed by the West London Mental Health NHS Trust (‘the Trust’) as a Consultant Forensic Psychiatrist at Broadmoor Hospital. On 2 December 2010 an allegation was made against C to the Trust that she breached patient confidentiality whilst travelling on public transport. The specific allegations were that she:
Following the allegations, the Trust appointed Dr Taylor (‘T’), an external forensic psychiatrist, as the Case Investigator and Dr Broughton (‘B’), the Trust’s Medical Director, as the Case Manager.
As the Case Investigator, T concluded that allegations 1 and 2 above could be upheld against C. and that they amounted to a serious breach of the GMC guidelines on confidentiality. T provided B with a copy of her investigation report and B decided on 12 August 2011 that a disciplinary panel should be convened to consider the allegations of breach of patient confidentiality by C. Although T had not stated in her report that the breach of patient confidentiality by C constituted ‘gross misconduct’, in deciding to invoke a disciplinary panel, B so categorised them. B informed C, in writing, that the allegations against her were “potentially very serious allegations of misconduct, falling within paragraph 8.4 of the Trust policy D4.”
Although C admitted the allegations of breach of patient confidentiality, she sought to prevent the Trust from invoking the disciplinary procedure against her by convening a hearing at which she would face an allegation of gross misconduct and could therefore be dismissed. C alleged that the Trust had wrongly refused to invoke its Fair Blame procedure to address breaches of patient confidentiality. C further alleged that the allegations of gross misconduct that were to be placed before the disciplinary panel went beyond the basis of T’s report, in that T had not specifically made reference to C committing acts of ‘gross misconduct’.
High Court judgment
The Court held that ‘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 dismissable’. It was said that “the charges did not bear the weight which B gives them…B went ahead on the basis of an enlarged criticism of the Claimant which T did not support.” Therefore, the Judge concluded that Trust erred in classifying C’s actions as gross misconduct and subsequently was not entitled to enforce its right to invoke a disciplinary panel.
Appeal to the Court of Appeal
The Trust appealed that decision, inviting the Court of Appeal to overturn the decision to grant injunctive relief to C. It was argued on their behalf that the behaviour amounted to serious breaches of confidentiality which B was entitled to regard as requiring a determination by a disciplinary panel. As the Case Manager, B had a broad discretion as to how to proceed at the conclusion of the investigation by T and there was no breach of contract by B in terming the allegations as gross misconduct.
Counsel for C drew the Court’s attention to Crawford v Suffolk Mental Health Partnership NHS Trust  EWCA Civ 188, which outlines the principle that disciplinary procedures invoked against a medical doctor must be applied scrupulously and robustly.
It was argued that invoking the disciplinary panel was not within the spirit of the employment contract which at, Paragraph 3, states that “it is essential…that we work in the spirit of mutual trust and confidence…whenever possible, any issues relating to conduct, competence and behaviour should be identified and re-solved without recourse to formal procedure”.
Further, it was submitted that the Trust Policy provides that the role of the Case Investigator is to establish the facts and report the findings. Therefore, there was no scope for the Case Manager to modify or enlarge upon the findings of the case investigator. T, it was argued, did not make a finding of gross misconduct in her report and her findings could not be augmented by B.
Counsel invited the Court to offer proper protection for C by adopting an interventionist approach to prevent the Trust invoking the disciplinary panel.
Court of Appeal judgment
The Court, at paragraph 66, highlighted that the Trust Policy “required a Case Investigator 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.” It was held that whilst there is a threshold to be crossed, in terms of seriousness, before a decision to refer to a panel can properly be taken, the introduction of words such as ‘gross’ are not beyond the powers of the Case Manager, provided evidence in the Case Investigators report justifies their use. The Court concluded that in this instance, the conduct of C was of a serious nature and of sufficient gravity to justify B concluding that the threshold for a disciplinary hearing had been crossed.
It was held that the decision by B to invoke a disciplinary panel was justified on the basis that “patients’ right to confidentiality is fundamental in the Health Service and must be respected by doctors and other staff.” The Court duly allowed the appeal and quashed the declaration and injunction.
An interesting case for those who defend professionals at internal disciplinary hearings, which looks at the process by which decisions are made and the procedures followed. Further, the case demonstrates the importance that is placed upon patients’ right to confidentiality within the medical professions and the finding that any breach of such a right, may well constitute an act of gross misconduct and leave the medical professional open to dismissal.
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