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

Dr MN worked at the Countess of Chester Hospital (“COCH”) as a Paediatric Registrar, serving in the same clinical team on the Neonatal Unit as Lucy Letby. After leaving COCH, Dr MN started working at Hospital X, (“the Hospital”), in a locum capacity. On 1 July 2018, Dr MN was employed by the Trust as a substantive Consultant.

In December 2016, Dr MN sought to arrange for Lucy Letby to carry out a period of supervised observation at the Hospital. The precise details of Dr MN’s involvement in these arrangements forms part of the investigation that he is currently subject to, and it would not be appropriate for me to make any findings about what actually took place. It is sufficient for present purposes to say that Lucy Letby did attend supervised observational visits at the Hospital on 3 or 4 occasions. Further, that in advance of doing so the Hospital sought, and COCH provided, pre-employment checks of Lucy Letby.

Dr MN provided the police with assistance with their investigation into Lucy Letby, and gave evidence at the first of her criminal trials. Special measures were put in place to protect his identity. On 18 August 2023, after the first trial, Lucy Letby was convicted of the murder of seven babies and attempted murder of six others at COCH between 2015 and 2016. After the conclusion of the first trial, Dr MN contacted the Trust’s Deputy Chief Medical Officer to inform him of his involvement in the trial and of Lucy Letby’s observership at the Hospital. This information was shared with a small number of senior personnel at the Trust. A couple of days later, Dr MN met with Mr Z the Trust’s Chief Medical Officer, and the Trust’s Chief Nursing Officer. Some wording for a letter was prepared by Mr Z after that meeting. The draft was obviously not complete as it contained a number of matters that needed to be filled in.

The draft set out a chronology of Dr MN’s involvement in arranging the observership for Lucy Letby. It stated that:

“Given the information and the supporting evidence I am content that you had no knowledge of the circumstances surrounding LL at the time of the visits and that the [Hospital’s] processes were followed and that the COCH did not inform [the Hospital] of any concerns in respect of LL that would have led [the Hospital] to refuse the offer of supervised visits to [the Hospital]”.

In his witness statement for the trial before me, which was not challenged by Dr MN, Mr Z stated that a few days after his meeting with Dr MN a complaint was received which “changed the situation significantly. Accordingly, we decided not to send this letter, but rather to consider how we should approach the evolving situation”. This evidence was consistent with answers given by other Trust employees in cross-examination. I have no reason to doubt that it was a truthful explanation of why the letter was not sent.

The complaint that Mr Z referred to was received on 29 August 2023. The mother of Baby N wrote to the Trust complaining that Dr MN had

“broke[n] patient confidentiality on numerous occasions discussing my son via email facebook and other platforms with the nurse Lucy Letby, he discussed my son and passed on his condition whilst he was still on the [neonatal unit at COCH] and when he had been transferred to [the Hospital] due to her attack on him, there was no legal basis for him for breaching confidentiality, he also shared confidential emails which were meant to be between consultants only with her”.

After the first trial of Lucy Letby, there was media reporting of her placement at the Hospital in both local and national newspapers. On 19 October 2023, Terms of Reference for the public inquiry headed by Lady Justice Thirlwall (“the Thirlwall Inquiry”) to examine events at COCH and their consequences were published.

On 23 January 2024, Dr MN was informed that the Trust intended to undertake a formal investigation. He was told this in person, and was also provided with a letter from Ms Y, who had been appointed as the “Case Manager” for the investigation. Ms Y was the Trust’s Director of Corporate Affairs. The letter from Ms Y stated that:

“Formal investigation into Lucy Letby’s visits to [the Hospital] and your involvement with Child N

I am writing to inform you that following a variety of concerns that have been raised at Executive and Board level, a decision has been made to launch a formal investigation into the circumstances surrounding Lucy Letby’s visits to [the Hospital] in 2017.

In addition, a formal complaint has also been made by the mother of Child N about your involvement with her son while you were working at the Countess of Chester Hospital.

Given the sensitivity across the NHS about all aspects of Miss Letby’s career ahead of the planned statutory public inquiry, we consider there are grounds for us to investigate the full facts surrounding your judgment, decision making and actions at that time.

To be clear, the investigation is not to be carried out under the Trust’s local MHPS policy, Handling Concerns about the Conduct, Performance and Health of Medical and Dental Staff as these events do not involve matters of conduct or performance. However, the issues that have caused sufficient concern to warrant this investigation go to the heart of your employment relationship and contract with the Trust.

The investigation will be a fact-finding process to gather all the relevant information about these events. The process will afford you every opportunity to explain your actions and decisions and it will be conducted objectively and fairly. Once the investigation is complete, we will evaluate its findings and consider what action, if any, we should take.

I must inform you that if we conclude that you have fallen short of the high standards we expect of our employees, there is a possibility that the subsequent process may result in your dismissal”.

It was also explained that:

“given the length of time since the relevant events and their uniqueness, we do not propose at this stage to exercise our right to exclude you, particularly as the concerns do not relate to your clinical practice and there is no risk to patient safety. That said, exclusion may still be considered as a necessary option during the process”.

Appended to the letter to Dr MN was a document setting out the scope of the investigation. Ms Y had commissioned, on behalf of the Board of the Trust, a specialist external consultancy – Verita – to conduct the investigation. The Terms of Reference for this investigation were described as

“to establish the full facts relating to:

• Dr [MN]’s prior knowledge of concerns about LL [Lucy Letby] and events at CoCH in 2015 and 2016

• Dr [MN]’s involvement in facilitating LL’s visits to [the Hospital] in 2017, and

• Dr [MN]’s role with LL in the care of Baby N, and what communication Dr [MN] shared with LL while working both at CoCH and at [the Hospital]”.

The “Key areas of the investigation” involved three main areas of scope:

“Dr A’s prior knowledge

• The investigator will establish what Dr MN knew of concerns at CoCH with regard to neonatal adverse events and deaths both whilst employed as a registrar there and subsequently as a locum consultant paediatrician at [the Hospital ].

Specific areas to include as a minimum:

i.

What did Dr MN know of the concerns about LL before or after leaving CoCH?

ii.

What were the basis of those concerns?

iii.

Who expressed them and in what context?

iv.

Did LL inform him of the suspicions levelled at her and did they discuss those suspicions?

v.

Was he aware that she was being moved to the day shift and the reason why?

vi.

Did he subsequently know of her move to non-clinical duties and if so when and why?

vii.

Was he aware of her grievance against COCH and did he have any involvement in it or the associated process and its outcome?

LL’s visits to [the Hospital]

• The investigator will establish Dr MN’S involvement in facilitating LL’s visits to [the Hospital] in late 2016 and early 2017.

Specific questions for Dr MN will, as a minimum, cover the following:

i.

How many visits did LL undertake and when?

ii.

Did Dr MN accompany her for the duration of every visit?

iii.

What was the reason for her visit to the PICU?

iv.

What did Dr MN convey to management and clinical colleagues with regard to any concerns about LL (formal or informal) before inviting her to [the Hospital]?

v.

What risk assessment did Dr MN carry out in relation to LL’s visits before inviting her to [the Hospital]?

vi.

Following LL being arrested did Dr MN raise with his managers his previous contact with LL and her visits to [the Hospital]? If not, why not?

Baby N

• The investigator will establish what involvement Dr MN had with LL in her care of Baby N whilst on the NNU at the CoCH and any associated communications between them.

• The investigator will establish what subsequent communications Dr MN had with LL with regard to Baby N once Dr A became employed at [the Hospital]

•The investigator will establish what access Dr MN had to Baby N’s clinical records since working at [the Hospital] and the reasons for that access”.

It was also stated that

“Should any issues arise during the investigation that raise concerns about patient safety, the wellbeing of participants, or that require investigation elsewhere, the investigator will immediately alert the commissioner”.

The reference to “MHPS” in the letter of 23 January 2024 to Dr MN is to the policy of the Department of Health entitled “Maintaining High Professional Standards in the Modern NHS”. This provides a framework for handling concerns about doctors and dentists in the NHS. The Directions on Disciplinary Procedures 2005 require all NHS bodies in England to implement the framework within their local procedures. For NHS Foundation Trusts (which is the legal status of the Trust in this case), it has been agreed with Monitor (the statutory regulator of Foundation Trusts) that the framework should be issued as advice. I shall set out further detail about MHPS later in this judgment.

Dr MN has not been interviewed for the purposes of the investigation. For some of the period, Dr MN has been extremely unwell or suffering from the after-effects of treatment for a medical condition. There has also been considerable correspondence between the parties and their respective lawyers. I shall set out some of the correspondence so as to illustrate the areas of dispute between the parties that are now captured by the list of issues that are before the Court.

Shortly after the letter of 23 January 2024 was provided to Dr MN informing him of the investigation, his then legal representatives (Weightmans) questioned why the Trust was not conducting the investigation under MHPS. The response from the Trust was that the matter being investigated did not relate to Dr MN’s conduct or performance.

Dr MN was invited to attend an interview to take place on 16 February 2024. Weightmans responded to say that Dr MN would not be attending until he had received Leading Counsel’s advice as to the procedural framework governing the proposed investigation. Ms Y chased this matter up with Weightmans but no response was forthcoming. Ms Y wrote directly to Dr MN on 27 February 2024 saying that she had no option but to correspond with him, and that the lack of response was “both unacceptable and discourteous”. This letter was not responded to, and on 8 March 2024, Ms Y emailed Dr MN to express her disappointment, and to issue him with “a direct management instruction” to attend for a preliminary interview, having discussed the matter with the Chair and Chief Executive of the Trust.

Dr MN responded immediately to apologise. He explained that new legal representatives were being engaged as Weightmans had previously represented the Trust. On 11 March 2024, solicitors at the firm DWF wrote to Ms Y to say that they were now instructed to assist Dr MN and stated that the investigation had to be conducted under MHPS, and the approach being taken was in fundamental breach of Dr MN’s contractual rights. It was explained that although it had been stated by the Trust that the events being investigated did not involve “matters of conduct or performance”, this was inconsistent with other assertions made in the correspondence and in the Terms of Reference for the investigation, and that the matters being investigated fell within the ambit of MHPS. The Trust was asked to confirm, among other things, that MHPS would be followed, and that the Medical Director would act as Case Manager and would be personally responsible for determining how any investigation report should be responded to.

DWF also asked the Trust to confirm that the Crown Prosecution Service and the Thirlwall Inquiry were aware of their investigation and were content for it to proceed whilst criminal proceedings involving Lucy Letby were still pending and the Thirlwall Inquiry was afoot. This was responded to by Ms Y on 15 March 2024. She accepted that the Baby N matter would be of relevance to the Thirlwall Inquiry, falling within its published Terms of Reference. Accordingly, Ms Y confirmed that that aspect of the investigation would be put on hold until the Trust had confirmation from the Thirlwall Inquiry. The investigation into Lucy Letby’s visits to the Hospital was regarded by the Trust as a “purely internal matter relating to [Dr MN’s] role and responsibilities as our employee” and had no relevance to the criminal activities of Lucy Letby. Consequently, Ms Y said that the investigation into these matters would continue.

Ms Y stated that MHPS did not apply in this case as the matter was not one of conduct or performance. However, the Trust intended to apply and adhere to MHPS as part of a general obligation to treat Dr MN fairly. It was explained that the Trust had already mirrored the procedural protections provided by MHPS by, among other things, appointing Ms Y as Case Manager. It was also explained that on receipt of the investigation report, the following options would be considered by Ms Y:

“(i)

That there is in fact nothing of concern and therefore no further steps that should be taken; or

(ii)

That there are real concerns that go to the heart of the employment relationship between the Trust and your client that require the matter to be put to an internal hearing to consider whether your client’s employment should be continued or terminated. That would not relate to your client’s conduct, but rather whether the essential term of trust and confidence has been irreparably damaged by the acts and omissions of your client. A fair panel process would be followed that similarly would mirror the internal disciplinary route and safeguards under the Trust’s Disciplinary Policy E5; or

(iii)

That there are real concerns that amount to conduct that require them to go before a formal hearing under the Trust’s Disciplinary Policy; or

(iv)

Finally, that both issues of trust and confidence and conduct be combined in a hearing process that both follows (for conduct) and mirrors (for trust and confidence) the Trust’s Disciplinary Policy”.

Ms Y rejected the assertion that the Medical Director had to be the Case Manager. This was not prescribed by MHPS or E27 (the Trust’s policy).

DWF responded on 19 March 2024. They stated that Lucy Letby’s visits to the Hospital were not purely an internal matter with no relevance to the criminal investigation; they also fell within the Terms of Reference for the Thirlwall Inquiry. DWF stated that the Trust was therefore “required to seek permission from the CPS and the Inquiry before proceeding with this line of investigation.”

Ms Y met with the secretariat to the Thirlwall Inquiry on 25 March 2024. On 2 April 2024, Ms Y wrote to Lady Justice Thirlwall. She explained that the Trust wished to undertake an internal investigation into two matters relating to Dr MN’s involvement with Lucy Letby: (i) the observational visits; and (ii) the formal complaint by the mother of Baby N. Ms Y enclosed a copy of her letter to Dr MN of 23 January 2024. Ms Y stated that although Dr MN had given assurances of his intention to engage with the process, “the correspondence from his legal team has posed an explicit challenge to the legitimacy of our internal investigation on the basis that both of the above matters fall under the purview of your own Inquiry’s terms of reference”. Ms Y stated that the Trust disagreed with the solicitors’ analysis in respect of the visits by Lucy Letby, which was viewed as “an ongoing internal employment matter”, but accepted that the issue with respect to Baby N ought to be raised directly with the inquiry. Ms Y continued that:

“We believe that the Trust has the right to look into both of these issues in the context of our contractual relationship with our employee. . .

In our view, the proposed investigation is significant in terms of our ability to discharge our obligations to our patients and the public, in the context of the criminal case and the publicity that will inevitably ensue from the upcoming public inquiry. This duty equally applies to the individual complaint made by the mother of Baby N, who has expressed a clear expectation that we will provide her with a resolution to her concerns.

The Trust is formally seeking the support of the Inquiry to proceed with its internal investigations”.

The Solicitor to the Thirlwall Inquiry, Tim Suter, responded to Ms Y on 3 April 2024. He explained that the Chair was grateful to Ms Y for raising with the inquiry “the sensitive issue of the investigation” into the actions of Dr MN and for the information provided. Whether the Trust should investigate was a matter for the Trust to decide having regard to their own obligations. Mr Suter explained that The Thirlwall Inquiry had no objection to the investigation by the Trust, but alerted Ms Y to the timetable relating to Dr MN’s evidence. It was anticipated that there would be some overlap between the questions asked of Dr MN by the Thirlwall Inquiry – requested under Rule 9 of the Inquiry Rules 2006 – and those raised in the Trust’s investigation. The Trust was asked to defer asking Dr MN questions until after he had provided his statement to the Thirlwall Inquiry.

On 12 April 2024, Ms Y wrote to DWF to say that the Trust’s investigation would proceed, but Dr MN would not be called for interview until he had delivered his Rule 9 statement to the Thirlwall Inquiry. With respect to MHPS, it was stated that “to regularise matters . . . The Medical Director will assume the nominal role of Case Manager but will however delegate responsibility for this to myself”. This delegation was reflected in an email from Mr Z (the Chief Medical Officer) to Ms Y, in which Mr Z also stated that it was “common practice for me to devolve this role to an appropriately trained senior member of staff.”

A letter before claim was sent by DWF to Ms Y on 18 June 2024, alleging that the Trust was acting in breach of contract. This was responded to by Ms Y on 10 July 2024. In that response, the allegations of breach were rejected. It was explained that the appointment of the Medical Director as Case Manager and then delegation to Ms Y was:

“common practice in a busy trust with numerous MHPS cases ongoing, as the Medical Director simply does not have the capacity to act as the Case Manager for all MHPS matters. This is recognised and accepted by all relevant bodies including the BMA, HCSA and MPS. There has never been a challenge when the Medical Director delegates his functions as in this case”.

Ms Y also stated that since her meeting with Dr MN in January 2024 “the Trust has been unable to make progress with matters as your client has repeatedly refused to attend for interview and you have intervened raising various legal challenges to the Trust’s approach”. DWF responded to say that they understood the Trust to be refusing to accept that MHPS should apply to “the entirety of the Trust’s investigation process”. In reply, Ms Y disputed this, saying that the Trust had agreed to do exactly that.

The firm of solicitors, Hill Dickinson, wrote to DWF on 5 August 2024 to say that they had been instructed by the Trust. They stated that the Trust was clear at the outset that its preliminary assessment of the situation was that MHPS was not applicable to the matters being investigated. The issue was one of “trust and confidence” arising from the facilitation by Dr MN of Lucy Letby’s visits and the precise circumstances and knowledge available to him at the time of those visits. This had the potential to raise questions around implied duties such as trust and confidence “and/or give rise to reputational issues” for the Trust. Nevertheless, the Trust was committed to following a fair and proper procedure and had taken a pragmatic approach of agreeing to apply MHPS.

On 8 August 2024, David Wilkinson, an Adviser to Practitioner Performance Advice (“PPA”), part of NHS Resolution (which is the operating arm of the NHS Litigation Authority), responded to communications from Ms Y about the concerns raised on behalf of Dr MN that the Case Manager should be the Medical Director. PPA provides advice to the NHS on managing and resolving concerns involving doctors, among other medical professionals. Mr Wilkinson explained that:

“from my experience and knowledge, across many organisations it is relatively normal practice for the case management of Consultants and senior doctors to be delegated by the Medical Director. The key concern should be whether the Case Manager is suitably trained and/or experienced and whether there are any conflicts of interest that would prevent them from undertaking the role without bias.

I also noted that [the Trust] . . . had the freedom to develop its own approach outside of MHPS, subject to this being appropriately set out within an agreed Policy & Procedure. As such, you should ensure that any action that you take is congruent with the requirements of your local policy”.

On 9 August 2024, Mr Suter, the Solicitor to the Thirlwall Inquiry, wrote to Ms Y asking for records held by the Trust about Lucy Letby’s work experience at the Hospital between January and April 2017. The Trust was also asked about the policies that the Hospital had applied for seeking work experience, and whether the Hospital had made any enquiries about who Lucy Letby was, her qualifications and experience, and whether pre-employment checks had been undertaken. Mr Suter also stated that it was understood that an individual who I shall refer to as BK was the Clinical Lead for Training and Development at the Hospital, and that the Thirlwall Inquiry would like to contact her to obtain a statement about her knowledge of Lucy Letby’s work experience at the Hospital. Ms Y was asked if BK still worked at the Hospital or if she had contact details for her.

Ms Y responded on 13 August 2024. She provided email threads of the correspondence relating to Lucy Letby’s visits. With respect to BK, Ms Y stated that:

“We do not understand the particular interest in BK here; as far as we are concerned her involvement was very limited so I would be reluctant to ask her to make a statement as I suspect she can add nothing above what is contained in the email threads. We cannot find any evidence that Letby visited the operating theatres which is the part of the thread that BK was copied in to”.

Ms Y also noted that the visits by Lucy Letby had not been disclosed to the mother of Baby N and the Trust was concerned as to how and when to address this given the sensitivity.

On 21 August 2024, a solicitor to the Thirlwall Inquiry wrote to Ms Y, attaching a Rule 9 letter. That letter was said to replicate the questions that had previously been asked of Ms Y, but in a formal request. Ms Y was also informed that it was a matter for the Trust how it wished to manage the complaint from the mother of Baby N, and that the Thirlwall Inquiry did not wish to prevent the Trust from sharing information about the visits.

Ms Y responded to the Rule 9 letter by producing a witness statement. The statement concluded with the following:

“Given the seriousness of the issues, the Trust subsequently took the decision to instigate a formal investigation in order to establish a clear and definitive set of facts in relation to the visits. However, it has been unable to progress this process due to challenges made with Dr [MN’s] legal representatives. This remains the case”.

The statement from Ms Y in redacted form was read into the record at the Thirlwall Inquiry.

On 14 October 2024, Ms Y wrote to Dr MN to inform him that the internal investigation would recommence and that the Trust had agreed to treat the investigation as an MHPS case in accordance with the Trust’s E27 policy “relating to your conduct (and potential gross misconduct) in addition to trust and confidence”. In response, DWF wrote on 18 October 2024 to say that there was “no separate issue of trust and confidence”.

Reference was also made by DWF to the evidence given by Dr MN to the Thirlwall Inquiry and to the fact that Ms Y had also given evidence to the inquiry. DWF contended that in light of Ms Y’s evidence, her role as Case Manager had been “severely compromised” and her continuation in that role amounted to a breach of the implied duty of trust and confidence. It was contended that the role of Case Manager involved the exercise of neutral decision-making and must not involve pre-judgment, and Ms Y’s actions were inconsistent with that. The Trust was asked to confirm that Ms Y would not continue as Case Manager. In a separate letter of the same date, DWF notified the Trust, confidentially, of Dr MN’s medical condition and that he would not be well enough to be interviewed.

There was then further correspondence between the parties about Dr MN’s state of health. The Trust agreed not to interview Dr MN until he was fit and able to participate. The Trust stated, however, that it would proceed with the investigation and that other material witnesses would be interviewed. On 13 February 2025, Ms Y wrote to say that she had appointed an internal Case Investigator, Mr A, a Consultant Orthopaedic Surgeon employed by the Trust, to replace Verita. The Terms of Reference and the “Key areas of investigation” remained substantially the same (there were only very slight edits to the original text). On 21 March 2025, Dr MN issued a claim for breach of contract against the Trust.

On 29 April 2025, Ms Y notified DWF that Mr A was intending to invite a number of people to participate in an investigation interview. This included Mr Z (the Trust’s Chief Medical Officer). On 9 May 2025, DWF responded to say that they were “very surprised and troubled” that it was proposed to interview Mr Z. They stated that “it is of the utmost importance that no steps are taken by the Trust which may impede Mr Z's ability to act as Case Manager, should the Court determine that he is required to do so”.