KB-2025-001016 - [2025] EWHC 2023 (KB)

I consider that issues 1-3 can be considered together. The compound question to consider is whether the Medical Director (here the Chief Medical Officer) is required to be the Case Manager for this investigation. In short, my judgment is that it is a term of Dr MN’s contract of employment that the Case Manager should be the Medical Director for the matters that are the subject of the present investigation; and that the Trust must ensure that Mr Z carries out that role once the investigation has been completed unless one of the exceptional circumstances that justifies departure from that requirement applies. I reach this conclusion for a number of reasons.

First, E27 is incorporated into Dr MN’s contract of employment. It is referred to (via the reference to the Trust’s procedures that are consistent with MHPS) in Dr MN’s contract of employment. This is accepted by the Trust.

Second, the investigation undertaken by the Trust falls within the scope of paragraph 1.6. According to that paragraph, “Any potentially serious concerns, i.e. those which have or may adversely affect patient care, must be registered with the Chief Executive and he or she must ensure that a Case Manager is appointed.” On its face, therefore, the nature of the concerns that lead to the appointment of a Case Manager, are those which are “potentially serious”, which – by use of the abbreviations “i.e” (Id est – meaning “that is”) – are “those which have or may adversely affect patient care”.

This threshold definition appears to be deliberate, as at least part of that wording is also reflected in the Quick Reference Guide to E27, which states that “Any potentially serious concerns which may adversely affect patient care must be registered with the Chief Executive and a Case Manager appointed.” In reality, this definition will capture all of the concerns set out at paragraph 1.6, as if a concern has already affected patient care then it would also be a concern that “may” affect patient care.

The language at paragraph 1.6 seems to be taken from paragraph 3 of the Introduction to the MHPS, which states that: “All NHS bodies must have procedures for handling serious concerns about an individual’s conduct and capability**”, and the key provided by the double star ** is said to be “A serious concern about capability will arise where the practitioner’s actions have or may adversely affect patient care”.

Mr Sutton KC contended that the definition of “serious concerns” in MHPS, which should inform the construction of paragraph 1.6, is not limited to concerns where the practitioner’s actions “have or may adversely affect patient care”, as MHPS also refers to the more general “serious concerns about an individual’s conduct”, a term is not defined in MHPS and is not limited to the impact on patient care. I disagree. E27 has, as I have said, deliberately used the threshold of concerns (whether or conduct or capability) “which have or may adversely affect patient care”. Either that reflects the understanding of the Local Negotiating Body at the Trust of what the MHPS calls for, or it is a refinement of what the MHPS calls for in the context of the Trust which, as a Foundation Trust is not obliged to adhere to the letter of the MHPS.

That approach by the Trust cannot be said to be an unreasonable or absurd one which might justify a reading of paragraph 1.6 as if the abbreviation “i.e.” was a mistake, and that the abbreviation that the parties must have intended was “e.g.”. It is not unreasonable or absurd for the Trust to use the threshold of impacting patient safety for applying the procedures set out in E27 given the importance to the Trust of safeguarding patient safety. Furthermore, the abbreviation suggested by Mr Sutton KC of “e.g.” (meaning, for example) is not particularly helpful to identify what the definition of a “potentially serious concern” is.

In any event, on the facts of this case, this does not actually matter. The allegations against Dr MN set out in the terms of reference were of matters that “may adversely affect patient care”. This was accepted by the Trust’s witnesses at the trial.

Furthermore, I consider that the reference to “patient care” within E27 is not confined to patients of the Hospital, but could apply to patients elsewhere. Thus, even if it was accepted at the outset that Lucy Letby did not have unsupervised access to patients of the Hospital, the learning that she gained might have impacted on how she treated patients or may have treated patients elsewhere.

As for the allegation relating to patient confidentiality of Baby N: this patient was initially a patient at COCH and subsequently at the Hospital. A breach of patient confidentiality might impact on how that patient is treated and cared for. Furthermore, a breach by a medical practitioner of patient confidentiality on one occasion may call into question their approach to patient confidentiality – which could impact on patient care depending on the nature of the breach – on another occasion.

Third, the meaning of the relevant part of paragraph 1.6 is that where a relevant investigation is being conducted into a medical practitioner in the role of Consultant, as Dr MN is, the Medical Director has to be the Case Manager and cannot delegate that role.

That meaning is the natural meaning of the language used at paragraph 1.6. The language of “The Medical Director will act as the Case Manager” is the language of what is going to happen. This is reinforced by the subsequent wording with respect to delegation. A contrast is made in the text between what is going to happen where the cases involve Clinical Leaders (which includes consultants) and “other cases”. In the latter situation, the language of the text is that the role of Case Manager “may” be delegated. That is not the situation for the cases involving Clinical Leaders. Thus, the language reads: “The Medical Director will act as the Case Manager in cases involving Clinical Leaders i.e. Clinical Directors and Service Group Leads and consultants and may delegate this role to a senior manager to oversee the case on his or her behalf in other cases” (emphasis added).

In this context, there is no material difference in meaning in this context between a statement that the Medical Director “will act” as Case Manager and the wording “must act”, although the latter wording would have been more emphatic. The fact that there are references elsewhere in the particular paragraph to the terms “must” (e.g. “Any potentially serious concerns . . . must be registered with the Chief Executive Officer and he or she must ensure that a Case Manager is appointed” (emphasis added) does not mean that the later reference to “will act” involves a different obligation.

The obligation on the Trust that the Medical Director “will act” as Case Manager (and cannot delegate that role) in respect of investigations into Clinical Leaders is, in my judgment, apt for incorporation. Analysing the matter in line with the indicia helpfully referred to by Andrew Smith J in Hussain, I consider that:

There will not be “disastrous consequences”, or anything close, if the Medical Director had to serve as the Case Manager in cases involving Clinical Leaders. I accept that the role of Medical Director is a substantial one, with a wide range of responsibilities and duties. It is also the case that the function of being a Case Manager for an investigation into a Clinical Leader will take up some time and thereby add to what is already likely to be a heavy workload for the post-holder. Nevertheless, the Case Manager role within E27 is essentially one of taking key decisions at various points within the investigation process; it does not involve day-to-day work such as that which might be required of the Case Investigator. Furthermore, although the preferred interpretation of paragraph 1.6 is that the Medical Director cannot delegate the function of Case Manager for investigations involving Clinical Leaders, there is nothing to prevent the Medical Director from receiving the assistance and advice of other personnel in carrying out the role of Case Manager, as long as the Medical Director makes the decisions and carries out the specific actions required of the Case Manager. In addition, the non-delegable obligation of being Case Manager applies only to investigations of Clinical Leaders and not to the far more numerous junior medical staff. If the relevant provision of E27 had stated that the Medical Director ‘will act’ as Case Manager in every case, then the workability of that being a contractual obligation would be more questionable.

The evidence from Mr Wilkinson, on behalf of the PPA, was not that the Medical Director could not perform the role of Case Manager. To the contrary, he referred to the Medical Director/Chief Medical Director serving as Case Manager in 210 (that is, 43%) of the 489 cases where a Case Manager had been appointed for an investigation involving Consultants. Moreover, there was always the possibility of seeking to agree with the Local Negotiating Committee an amendment to E27 if the situation was becoming unworkable for the Medical Director to carry out the Case Manager function.

I accept that there will be circumstances in which it would not be appropriate, or possible, for the Medical Director to serve as the Case Manager in a particular case. As a matter of fairness, the Medical Director ought not to serve as Case Manager if they had personal or direct knowledge of the key subject matter of the investigation, or because they are the partner, or a close relative of the Clinical Leader being investigated. There may also be circumstances of ill-health or other lengthy absence which would render it impossible for the Medical Director to carry out the function of Case Manager. Although these examples can easily be envisaged, they will, in all likelihood, only apply exceptionally, and do not mean that the obligation is unworkable per se.

These exceptions, or qualifications, to the requirement that the Medical Director has to carry out the function of Case Manager, will be implied into the employment contract. It would be obvious to the parties, satisfying the “officious bystander” test, that the Medical Director could not serve as the Case Manager where the Medical Director was unable to carry out the function due to ill health, or where they would, so as to satisfy principles of fairness, have to recuse themself.

A further reason for why the paragraph 1.6 reference to the Medical Director having to act as Case Manager is apt for incorporation is that the language used is suitable for a contractual obligation. Indeed, if the language of paragraph 1.6 had been set out directly in the written contract of employment, it would have been regarded as giving rise to a contractual requirement.

Furthermore, of some significance is that the same wording appears in MHPS, reflecting the importance of the requirement that the Medical Director should serve as the Case Manager for “cases involving clinical directors and consultants and may delegate this role to a senior manager to oversee the case on his or her behalf in other cases”. This is something which has been agreed at the national level for the NHS as a whole, and is binding on NHS Trusts and recommended for Foundation Trusts.

I acknowledge that there are some areas of the text of E27 that might sit somewhat uncomfortably with this interpretation: Mr Gorton KC referred to paragraphs 2.14 and 4.12. Nevertheless, it seems to me that these other provisions of E27 can be explained without undermining the construction put forward by Dr MN.

With respect to paragraph 2.14, this is dealing with the specific situation relating to the exclusion of a Consultant and contemplates the Medical Director delegating the role of Case Manager to a senior manager to oversee the case. That is a very specific set of circumstances which does not apply in all cases of an investigation into a Consultant. Those circumstances may require intensive and time sensitive input by the Case Manager or their delegate, as the provision goes on to say that the Case Manager will review “the need for exclusion and making progress reports” to the Chief Executive and Designated Board Member. In these circumstances, it is not surprising therefore that the locally agreed policy expressly permits the Case Manager to delegate their responsibility. The fact that there is such an exception does not justify a different reading of paragraph 1.6 and the identity of the person who carries out the role of Case Manager ordinarily.

With respect to paragraph 4.12, this is dealing with the specific issue of capability and whilst it may seem redundant to say that “The Case Manager will need to consider with the Medical Director” if they are the same person, that will not always be the case. The Case Manager will not be the Medical Director if, for staff other than Clinical Leads, the role of Case Manager has been delegated. This could have been made clearer in the text, but the fact that it is not made clearer does not undermine the language of paragraph 1.6 which is abundantly clear. Moreover, it is notable that the Medical Director is not the only person with whom the Case Manager must consider whether issues of capability can be resolved through local action: they must also consider those issues with the Director of Human Resources and OD. In other words, the entire procedure for consideration is not, even where the Case Manager is the Medical Director, with oneself.

My conclusion, therefore, is that the Medical Director is required to be the Case Manager and was not, according to the terms of paragraph 1.6, permitted to delegate that role. Accordingly, the purported delegation was in breach of Dr MN’s contract of employment.

Whether or not Mr Z, as the Medical Director, must serve as the Case Manager once the investigation is complete will depend, in my judgment, on whether any of the qualifications to the general rule that I have outlined at paragraphs 109-110 apply. At this stage, it is premature to make any findings as to whether or not any qualifications apply. What I can, say, however, is the mere fact that Mr Z may be interviewed as part of the investigation would not mean that he could not serve as the Case Manager once the investigation was complete. The Case Manager is not the ultimate decision-maker with respect to the Consultant’s employment. The requirements of fairness for the Case Manager role are therefore less stringent than would apply to the ultimate decision-maker.

In my judgment, whether or not Mr Z can, in accordance with principles of fairness, perform the role of Case Manager at the conclusion of the investigation and determine next steps will depend on the outcome of the investigation and the materiality of anything that Mr Z had to say in his interview to the decision that would have to be taken on next steps.

Given that I have found that it was a contractual term that the Medical Director should (with the qualifications expressed at paragraphs 109-110) serve as the Case Manager for an investigation of a Consultant, the question of whether that same result arises pursuant to the duty of trust and confidence does not arise. As the matter was fully argued, however, I will deal with the matter briefly.

In my judgment, it would not have been a breach of the duty of trust and confidence for the Trust to state that it would be adhering to the procedures set out in MHPS, but make an exception for the identity of the Case Manager. On the assumption that the procedures set out in MHPS that relate to the identity of the Case Manager are not incorporated into the Consultant’s contract of employment, there is no reason why the Trust could not decide to derogate from some of the procedures set out in MHPS even if others were followed. The touchstone for what the Trust could do is that of fairness: there is no reason, in principle, why it would have been unfair for the Trust to appoint someone other than the Chief Medical Officer as Case Manager for the investigation. That other person could have been a senior member of staff such as Ms Y.