Acting to stop harm: the FCA and Appointed Representatives
Employment Appeal Tribunal comments on the resolution of patient complaints and working whilst suspended.
Northamptonshire Healthcare NHS Foundation Trust v Chawla [UKEAT/0075/15/JOJ]
Judgement date: 08 January 2016
In this case, Northamptonshire Healthcare NHS Foundation Trust (the Trust) appealed against a finding of the Employment Tribunal (ET) that the dismissal of Mr Chawla was unfair.
Mr Chawla was employed by the Trust as a Consultant Psychiatrist from April 1996 until September 2013. In or around 2008, issues arose concerning Mr Chawla’s communication style with patients and he was sent on a course to improve his communication skills. He also underwent a period of mentoring which concluded by February 2010. During 2012, further issues arose about Mr Chawla’s communication with patients, some of which were the subject of patient complaints and had resulted in the patients receiving a response from the Chief Executive of the Trust. Additional issues later arose when a patient complained about inappropriate conduct by Mr Chawla which included communication via her Facebook account in respect of emails and an invitation to join a dating website.
During the internal investigation in October 2012 Mr Chawla contacted the Trust to seek permission to undertake private sector work whilst suspended. Mr Chawla was told that it would be inappropriate in accordance with the Maintaining High Professional Standards Procedure (“MHPS”) for him to conduct private work. When he subsequently enquired whether he could do some medical assessments on a private basis, Mr Chawla was told that the Trust’s view was that he should not be seeing any patient within the NHS or privately until the investigation was completed.
In April 2013, the Trust discovered that Mr Chawla had undertaken some private practice work during his suspension. Following an investigation, three allegations of gross misconduct were levelled against Mr Chawla. The allegations were:
(1) His conduct with patients had been unprofessional; both within consultations and at other times;
(2) He had inappropriately used social media, crossing professional boundaries in communicating with a patient via Facebook and retaining her personal email address resulting in her receiving an invitation to join a dating website (he contended that his account was hacked); and
(3) He had failed to comply with a reasonable management instruction to refrain from undertaking work on a private basis whilst suspended.
The Trust disciplinary panel found that he was guilty of all charges and he was summarily dismissed by reason of gross misconduct. Mr Chawla appealed this decision, which was upheld at a subsequent Appeal Hearing at the Trust.
Mr Chawla issued a claim for unfair dismissal in the ET. The ET concluded on all counts that he had been unfairly dismissed.
The Tribunal found as follows in respect of the allegations:
(1) The patient complaints had already been investigated and responded to and it was unfair to revisit them within the disciplinary process. There were no "exceptional circumstances" making it reasonable to revisit previously determined matters.
(2) There was no evidence upon which the Trust could base a reasonable belief that Mr Chawla had contacted the patient on social media.
(3) The instruction that was provided by the Trust was more akin to an expression of an opinion rather than a specific instruction. MHPS did not give the Trust the power to prevent Mr Chawla undertaking private practice.
Employment Appeal Tribunal (EAT)
The Trust appealed the decision of the ET on the basis that the ET was wrong in law and/or the evidence to reach the aforementioned conclusions.
The Trust contended as follows:
(1) The ET wrongly applied the “exceptional circumstances” test and further the patient complaints had been responded to via the patient complaint procedure and not the disciplinary process, which remained outstanding.
(2) The ET was wrong to find there was no evidence that Mr Chawla contacted the patient via social media and had adopted a narrow view. The ET had focused too narrowly on the specific question of who initiated contact, rather than addressing the wider issue of whether it was appropriate for Mr Chawla to contact patient(s) via social media at all.
(3) The ET was wrong to conclude that the Trust had no power to instruct Mr Chawla not to undertake private work in that the ET failed to have regard to Mr Chawla’s contractual duties to cooperate with the Trust as his NHS employer. Mr Chawla had a general contractual duty of co-operation with the Trust and he was bound to comply with the Trust in relation to the Medical Professional (Responsible Officers) Regulations 2010.
The EAT overturned the ET’s judgment on all three issues.
The EAT held that:
(1) The band of reasonable responses did not require the importation of a higher test of "exceptional circumstances". The patient complaint had not previously been considered as a disciplinary matter. The resolution of a patient complaint was not the same as an internal disciplinary process. The ET Tribunal had failed to consider Mr Chawla’s own evidence that he knew the internal process had not been concluded in respect of the patient complaint.
(2) The ET had confused “contacted a patient via Facebook” with “initiating contact”. Once, however, it was recognised that the mischief was making contact, in the sense of having contact with a patient via social media, it was apparent that the ET’s conclusion on this charge could not stand.
(3) The ET was wrong in both its approach and construction to the question of the Trust having the power to restrict Mr Chawla’s private practice. Mr Chawla had expressly sought and been refused consent to work in the private sector whilst suspended, and therefore should not have done so.
The EAT considered that it was not appropriate to substitute their view for that of the ET and remitted the matter to a differently constituted ET to be heard afresh. It was held that on remission, the new ET should make its own findings and reach its own conclusions.
This case provides useful commentary on the personal conduct of a regulated professional within the disciplinary setting. This case acts as a reminder that restriction to a clinician’s private practice whilst they are under investigation can be deemed a reasonable management instruction. In addition, the resolution of a patient complaint does not mean that disciplinary action (and regulatory proceedings) cannot then follow in respect of the issues raised by the patient complaint. The processes are distinct and serve different purposes.
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