Lawyers must fix the problems with gagging orders before it is too late
West London Mental Health NHS Trust v Chhabra  UKSC 80,  All ER (D) 164 (Dec)
The Supreme Court, allowing the claimant’s appeal, gave guidance on the operation of the disciplinary procedures for doctors and dentists in the NHS. It clarified the roles of the case investigator and the case manager when handling concerns about a doctor’s performance. In particular, it decided that under the procedures, the case investigator was not meant to determine the facts, but was only meant to investigate objectively and impartially the complaints identified by the case manager to discover if there was a prima facie case of a capability issue or misconduct. If the case investigator were to conclude that there was no prima facie case then, as long as that conclusion was not perverse, there would be no basis for the case manager to convene a conduct panel. Where the case investigator’s report made findings of fact or recorded evidence capable of amounting to misconduct, the case manager could convene a conduct panel. The case investigator was not precluded from reporting evidence of misconduct which was closely related to, but not precisely within, the terms of reference. And the case manager was not limited to considering only the case investigator’s findings of fact when deciding on further procedure. Nor did the case manager have to formulate the complaint for consideration by a conduct panel precisely in the terms of the case investigator’s report. But the procedures did not envisage that the case manager could send to a conduct panel complaints which had not been considered by the case investigator or for which the case investigator had gathered no evidence.
What key issues did this case raise?
The courts have repeatedly stated that they will not step in to micro-manage the procedures adopted by NHS employers for investigations and hearings concerning practitioners’ conduct and capability imposed upon them under the terms of the national policy framework Maintaining High Professional Standards in the Modern NHS (MHPS)—see for example Kulkarni v Milton Keynes Hospital NHS Trust  EWCA Civ 789,  ICR 101.
Lord Hodge, giving the unanimous decision in Chhabra , stated that intervention was required and ruled in favour of Dr Chhabra, granting an injunction preventing the Trust from holding a conduct hearing. The basis of the court’s decision was that there were a number of irregularities in the proceedings which cumulatively rendered the convening of the conduct panel unlawful as a material breach of the doctor’s contract. Of most significance was the Supreme Court’s finding that the allegations against her, although serious, should not have been classified by the Trust as potential gross misconduct.
The court also addressed the important question of the scope of the respective roles of the case investigator and the case manager when an NHS employer is handling concerns over a doctor’s or dentist’s performance under the MHPS framework. Disciplinary procedures require flexibility in order to be able to operate effectively and in a way that achieves the legitimate end of the protection of the public. To that end, it was decided that case investigators may consider conduct that comes to their attention that is beyond the scope of the terms of reference provided to them by the case manager, so long as the new conduct is closely related to the original terms. Similarly, while case managers may only formulate a complaint to send to a conduct panel on the basis of the evidence gathered by the case investigator, they are not confined to the terms of the case investigator’s report, nor bound by the conclusions reached therein. They can make their own assessment of the evidence.
What should lawyers advising in this area of law take note of?
For those advising employers on regulatory compliance, it may be an opportune time to review the training and guidance given to case investigators and case managers as to the scope of their roles. As well as sanctioning a flexible approach to the scope of the investigation undertaken by the case investigator, the judgment reiterates the perhaps obvious point that investigative reports must be the product of the case investigator’s work alone, untainted by the opinions of others, beyond mere clarification on matters of procedure.
For those advising practitioners seeking to challenge the course of disciplinary proceedings based upon a breach of contractual terms, careful consideration should be given to what the court says at paras [30–33] about the role of those involved in the investigation, as the strict terms of reference provided to the case investigator may not found the ultimate case brought against the practitioner at any subsequent hearing.
Are there any trends emerging in this area? What are your predictions for the future?
The court’s willingness to intervene in this case and overturn the Court of Appeal ruling underlines an important trend that appears to be emerging after the decision of the Supreme Court in Edwards v Chesterfield Royal Hospital NHS Foundation Trust  UKSC 58,  2 All ER 278. In Edwards, the court’s jurisdiction to intervene in such cases was clearly stated, as was the principle that damages cannot be obtained for dismissal in breach of contract. This appears to have led to an increasing number of challenges being brought by practitioners in order to obtain injunctive relief to restrain disciplinary procedures that are in breach of their contractual terms of employment—a trend which looks set to continue in the light of this successful challenge.
This article was first published in Lexis Nexis, LexisLibrary’s UK Legal News Analysis on 3 January 2014, and has been republished with the kind permission of the copyright owner.
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