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

Submissions on behalf of Dr MN

Dr MN, represented before me by Mark Sutton KC and Nicola Newbegin, submits that the policy set out in E27 is incorporated into his contract of employment, and that it is a term of his contract as a Consultant that the Medical Director (in this case Mr Z, the Trust’s Chief Medical Officer) must serve as the ‘Case Manager’ and cannot delegate that role to anyone else. In other words, the relevant parts of paragraph 1.6 of E27 are apt for incorporation.

Mr Sutton KC contended that paragraph 1.6 was triggered in this case as “potentially serious concerns” had been raised about Dr MN’s judgment and conduct. Mr Sutton KC submitted that for paragraph 1.6 to be engaged it was not necessary that the “potentially serious concerns” were those which “have or may adversely affect patient care”. Mr Sutton KC suggested that there was an error in the text of E27, where it used the abbreviation ‘i.e.’ in the first sentence of paragraph 1.6, to qualify the meaning of “Any potentially serious concerns” which “must be registered with the Chief Executive” who “must ensure that a Case Manager is appointed”. Mr Sutton KC argued that the abbreviation that must have been intended was ‘e.g.’: that the impact on patient care was merely illustrative of “potentially serious concerns” which would trigger registration with the Chief Executive and appointment of a Case Manager. Mr Sutton KC contended that that is the proper way to read the text so as to conform with MHPS which was concerned with “All serious concerns” and not just those that affected patient care. It was also consistent with the purpose of the policy at E27, which is intended to deal with “all conduct, performance and health” matters. This could include concerns relating to probity, insulting colleagues, sexual misbehaviour towards colleagues in the workplace, which would all be examples of bad behaviour without affecting patient care. In any event, Mr Sutton KC submitted that the concerns that were raised about Dr MN did affect, or may affect, patient care, and this was accepted by the Trust’s own witnesses when giving evidence at trial.

Mr Sutton KC contended that the requirement that the Medical Director should be the Case Manager for Consultants like Dr MN was apt for incorporation for a number of reasons:

Mr Sutton KC submitted that the Trust had clearly breached that express contractual obligation by appointing Ms Y to serve as Case Manager rather than Mr Z, and the purported delegation from Mr Z to Ms Y was a nullity: this is not permitted by the contract of employment.

Alternatively, Mr Sutton KC referred to the fact that the Trust had stated, in their letter of 15 March 2024, that they “intend to apply and adhere to [MHPS] as part of a general obligation, to which the Trust commits, to treat [Dr MN] fairly”. In doing so, Mr Sutton KC submitted that the Trust must be taken to be applying the provision that the Case Manager should be the Medical Director. To decide otherwise would allow the Trust to pick and choose which procedural protections they wish to apply. This offended against the duty of fairness, which requires the Trust to adhere to all procedures, including that the Medical Director will be the Case Manager. To decide otherwise would also breach the implied term of trust and confidence, and there is no “reasonable and proper cause” to satisfy the caveat to that term.

In any event, Mr Sutton KC submitted that, as a result of her involvement in giving evidence to the Thirlwall Inquiry, Ms Y’s insistence on continuing in the role of Case Manager was and would be a breach of the implied terms of the employment contract. The witness statement and exhibits provided to the Thirlwall Inquiry demonstrate that Ms Y cannot be independent and fair: an implicit requirement of the E27 policy. Ms Y referred in her evidence to the Thirlwall Inquiry to matters that are potentially matters that the internal investigation, and any future hearing panel, may wish to test. Ms Y also made unnecessary and critical assertions about Dr MN and his legal representatives, which calls into question her ability to occupy a position of detachment and objectivity. Ms Y also sought to control who the Thirlwall Inquiry could speak to (namely, BK) and the information that the Thirlwall Inquiry received, which raised further concerns about her involvement in the role of Case Manager.

With respect to relief on the Case Manager point, Mr Sutton KC submitted that as Mr Gorton KC had made it clear, on behalf of the Trust, that the Trust will comply with this Court’s ruling on the matter of who should serve as Case Manager at the conclusion of the investigation, there was no need for injunctive relief; Dr MN was content for declaratory relief to be ordered.

Mr Sutton KC also argued that on the basis of the alleged concerns that are the subject of the investigation, it would not be open to the Case Manager to attempt to side-step MHPS/E27 by seeking to dismiss Dr MN, or embark on a process that could lead to his dismissal, for breach of the duty of trust and confidence by labelling the matters subject to the investigation as ‘some other substantial reason’. This matter was sufficiently pleaded in the Particulars of Claim. Moreover, framing matters as reputational issues for the Trust would be irrational and in breach of the Trust’s duty of trust and confidence towards Dr MN. The concerns that have been set out by the Trust for investigation were those of Dr MN’s professional conduct and/or capability. Fairness demands that the contractually agreed processes are followed, and the principle of fairness would be contravened if Dr MN was made to go to a hearing relating to trust and confidence where (a) there has been no investigation of these matters, (b) Dr MN will not have been given the chance to “clear his name”, and (c) the only outcome if a breach is found is that of dismissal. Mr Sutton KC accepted, however, that it would be possible for the Trust to seek to investigate reputational matters, albeit he suggested that this would be difficult, but that investigation had not been carried out so far. If the Trust was to investigate these matters, that would require a clear articulation of fresh concerns, as reputation was not mentioned in the terms of reference provided to Verita or subsequently to Mr A.

Submissions on behalf of the Trust

Simon Gorton KC and Jack Mitchell appeared on behalf of the Trust. They submitted that the Trust accepted that E27 was incorporated into Dr MN’s contract of employment. They also accepted that certain provisions – such as the right of the Trust to exclude a doctor whilst an investigation was in progress – were apt for incorporation as terms of Dr MN’s contract. That did not apply, however, to paragraph 1.6.

It was submitted that paragraph 1.6 was not apt to be given contractual effect, and should be treated as guidance instead.

It was also submitted that, whether or not paragraph 1.6 is apt for incorporation, the precondition to its application – that there were “potentially serious concerns, i.e. those which have or may adversely affect patient care” – was not satisfied here. The concerns raised with the Trust about Dr MN, and which were being investigated, did not affect patient care. Whether or not Dr MN had knowledge about Lucy Letby that impacted on his seeking to arrange her visits to the Hospital was not a matter of patient care or medical skill. It was a matter of judgment. The allegation that Dr MN shared information about Baby N when he was actually an employee of a different organisation was not a matter that concerned clinical treatment, or the care provided to a patient. Indeed, even if Baby N had been a patient of the Trust this would not breach patient care.

Further, Mr Gorton KC submitted that the Trust disputes that Ms Y has acted in any way as Case Manager that breaches the contract of employment with the effect that she should be prohibited from taking the relevant decision at the end of the investigation. Ms Y was expressly requested by the Thirlwall Inquiry to provide information, and the material she provided was not based on her own evidence or recollections. In any event, the Trust had acted with reasonable and proper cause – a fundamental qualification to the trust and confidence test – and its conduct is not so severe as to justify a finding of breach.

With respect to relief on the Case Manager point, Mr Gorton KC informed the Court that if it was decided that the Medical Director should be the Case Manager then there would not be any need for injunctive relief to be granted. The Trust would follow the Court’s judgment, as a sensible public body. Mr Gorton KC also contended that declaratory relief would also not be required.

Mr Gorton KC also submitted that the Trust should not be prohibited from concluding that the matter that needed to be addressed with Dr MN at the end of the investigation was one of “trust and confidence”. Trust and confidence was properly categorised as ‘some other substantial reason’, and so falls outwith MHPS/E27. Mr Gorton KC pointed out that there were various instances where ‘some other substantial reason’ had been made out as a potentially fair reason for dismissal in the statutory employment law context; and the category was not limited to where there had been falling out with colleagues or third-party pressure to dismiss an employee. In the instant case, the Trust had been signalling for some time that the matter of reputational damage to the Trust as a result of Dr MN’s actions may, potentially, justify consideration being given to a trust and confidence dismissal. This was reflected in the Trust’s Amended Defence where references to the Trust in the media had been set out, and it was specifically pleaded that by the autumn of 2023 the Trust was concerned with issues arising from “Reputational risk management, specifically and most importantly any potential concerns in the eyes of its patients, families and the public arising from the fact of the visits”.

Mr Gorton KC contended that the submission about “side-stepping” had not been pleaded by Dr MN, and was not therefore an issue that the Court had to address. Furthermore, the matter was premature in any event as the investigation process was still at an early stage. Nevertheless, for practical reasons, the Trust was content if the Court did wish to express its views on this matter so as to assist the parties going forward.