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

Dr MN entered into a written contract of employment with the Trust on 1 July 2018. Clause 1 of the written contract provided that his appointment was “subject to the Terms and Conditions – Consultants (England) 2003 (the Terms and Conditions) which may be amended by collective negotiation from time to time”. At clause 3, it was stated that Dr MN was “a senior and professional employee who will usually work unsupervised and frequently have the responsibility for making important judgements and decisions. It is essential therefore that our trust and confidence in your ability to work unsupervised is maintained”. Among other things, Dr MN agreed “to comply with your obligations under the Trust's policies, objectives, rules, working practices and protocols”.

At clause 17.1 the following is stated under the heading “Disciplinary Matters”:

“Wherever possible, any issues relating to conduct, competence and behaviour should be identified and resolved without recourse to formal procedures. However, should we consider that your conduct or behaviour may be in breach of our code of conduct, or that your professional competence has been called into question, the matter will be resolved through our disciplinary or capability procedures (which will be consistent with the 'Maintaining High Professional Standards in the Modern NHS' framework), subject to the appeal arrangements set out in those procedures”.

Clause 29 of the contract of employment provides under the heading “Termination of Employment” that provisions governing termination of employment are set out in Schedule 19 of the “Terms and Conditions”: that is a reference to the Terms and Conditions – Consultants (England) document. Schedule 19 provides at paragraph 4 for the “Grounds for termination of employment”, which are stated to include “where there is some other substantial reason to do so in a particular case.”

The Trust’s policy that was designed to be consistent with MHPS was set out in a document entitled “E27 - HANDLING CONCERNS ABOUT CONDUCT, PERFORMANCE & HEALTH OF MEDICAL & DENTAL STAFF POLICY”. Under a heading “Quick Reference Guide”, it was stated that:

“This policy applies to all medical and dental staff employed either substantively or on an honorary basis within the Trust

It is designed to inform all staff of the Trust’s procedures, and their rights and responsibilities in relation to implementing the framework set out in ‘Maintaining High Professional Standards in the Modern NHS (MHPS)’

The policy does not apply to personal conduct issues. The Trust Disciplinary Policy will apply to all medical and dental staff against whom allegations of personal misconduct have been made”.

It is clear, therefore, that personal conduct issues (e.g. harassment of colleagues) is not governed by E27 (this is reflected in paragraph 1.2 of the policy, as set out at paragraph 57 below).

The “Quick Reference Guide” also states that:

“All concerns about conduct or capability of medical and dental staff in training will be considered initially as training issues and the appropriate Post-Graduate Dean will be involved from the outset.

All allegations must be properly investigated to verify the facts so that allegations can be shown to be true or false.

Any potentially serious concerns which may adversely affect patient care must be registered with the Chief Executive and a Case Manager appointed.

When serious concerns are raised, the Trust will urgently consider whether it is necessary to place temporary restrictions on practice”.

The Introduction to E27 provides at paragraph 1.1 that:

“This is an agreement between . . . the Trust and the Local Negotiating Committee (Local Negotiating Committee) outlining the employer’s procedure for handling concerns about doctors’ and dentists’ conduct, performance and health. It implements the framework set out in ‘Maintaining High Professional Standards in the Modern NHS’ (MHPS), issued under the direction of the Secretary of State for Health on 11 February 2005”.

At paragraph 1.2 it is stated that:

“MHPS must be followed in all cases involving medical staff until the investigation stage has been completed. A decision will then be made by the Case Manager on how to proceed. This procedure does not apply to personal conduct issues when at the hearing stage. The Trust’s Disciplinary Policy & Procedure will apply to all medical staff against whom allegations of personal misconduct have been made. If, however, during the course of an investigation into allegations of personal misconduct, professional issues are uncovered, the matter should be dealt with under this procedure”.

The “Purpose” of the policy is described at paragraph 2.1-2.2:

“The aim of this policy is to ensure that all conduct, performance and health matters are recorded and dealt with in accordance with the framework set out in ‘Maintaining High Professional Standards in the Modern NHS’

This document is designed to inform all staff of the Trust’s policy and procedures, and their rights and responsibilities in relation to such matters”.

Appendix A to E27 is headed “Procedure for Handling Concerns about Conduct, Performance and Health of Medical and Dental Staff”. Section 1 is headed “Action When a Concern Arises”. At paragraph 1.1, it is stated that:

“The management of performance is a continuous process which is intended to identify problems. Numerous ways now exist in which concerns about a practitioner's performance can be identified; through which remedial and supportive action can be quickly taken before problems become serious or patients harmed; and which need not necessarily require formal investigation or the resort to disciplinary procedures”.

At paragraph 1.6, it is stated that:

“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. The Chairman of the Board must designate a non-executive member "Designated Board Member" to monitor the case during the investigation process and ensure that momentum is maintained. From this point he/she will receive reports, review any continued exclusion and/or restriction from work, consider any representations from the practitioner about his/her exclusion and/or restriction, and consider any representations about the investigation. All concerns should be investigated quickly and appropriately. A clear audit route must be established for initiating and tracking progress of the investigation, its costs and resulting action. However the issue is raised, the Medical Director will need to work with the Director of Human Resources and OD and NCAS to decide the appropriate course of action in each case. 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. The Medical Director is responsible for appointing a Case Investigator”.

(highlighting in the original).

Paragraph 1.7 provides for the Trust urgently to consider whether it is necessary to place temporary restrictions on the practitioner’s practice when serious concerns are raised. The procedure for this is dealt with at section 2 of the Appendix. Paragraph 1.9 provides that the “first task of the Case Manager is to identify the nature of the problem or concern and to assess the seriousness of the issue on the information available and the likelihood that it can be resolved without resort to formal disciplinary procedures”. This should be taken in consultation with “the Director of Human Resources and OD, the Medical Director and NCAS [now PPA]”.

Under the heading “The Investigation”, paragraph 1.13 provides that:

“Where it is decided that a more formal route needs to be followed (perhaps leading to conduct or capability proceedings) the Medical Director must, after discussion between the Chief Executive and Director of Human Resources and OD, appoint an appropriately experienced or trained person as Case Investigator. The seniority of the Case Investigator will differ depending on the grade of practitioner involved in the allegation. Several clinical managers should be appropriately trained, to enable them to carry out this role when required”.

The role of the Case Investigator is then described. At paragraph 1.18 it is provided that:

“The Case Investigator has discretion on how the investigation is carried out but in all cases the purpose of the investigation is to ascertain the facts in an unbiased manner. Investigations are not intended simply to secure evidence against the practitioner as information gathered in the course of an investigation may clearly exonerate the practitioner or provide a sound basis for effective resolution of the matter”.

The Case Investigator is required to submit a report to the Case Manager. At paragraph 1.20 it is stated that:

“The report of the investigation should give the Case Manager sufficient information to make a decision whether:

• There are concerns about the practitioner's performance that should be further explored by NCAS; (see 1.21 below)

• Restrictions on practice or exclusion from work should be considered; (see Section 2)

• There is a case of misconduct that should be put to a conduct panel; (see Section 3)

• There are intractable problems and the matter should be put before a capability panel; (see Section 4)

• There are concerns about the practitioner's health that should be considered by the Trust's occupational health service; (see Section 5)

• There are serious concerns that should be referred to the GMC or GDC;

• No further action is needed.

The Case Manager should decide what further action is necessary, taking into account the findings of the report and the advice of NCAS”.

Section 2 of Appendix A is concerned with “Restriction of Practice & Exclusion from Work”. For exclusions (a term which replaces, but is synonymous for these purposes with, the word “suspension”), the Trust Chief Executive “has overall responsibility” for managing the procedures and for ensuring that cases are properly managed. Paragraph 2.12 provides that “The decision to exclude a practitioner must be taken only by persons nominated under paragraph 2.14”. Paragraph 2.14 provides:

“The Medical Director will act as the Case Manager in the case of consultant staff, or delegate this role to a senior manager to oversee the case, and appoint a Case Investigator to explore and report on the circumstances that have led to the need to exclude the staff member. The investigating officer will provide factual information to assist the Case Manager in reviewing the need for exclusion and making progress reports to the Chief Executive and Designated Board Member”.

Section 3 of Appendix A is concerned with “Conduct and Disciplinary Matters”. This provides at paragraph 3.1 that “Misconduct matters for practitioners, as for all other staff groups, are dealt with under the Trust’s Disciplinary Procedure”. The hearing of cases involving issues of professional conduct is said at paragraph 3.2 to proceed to a hearing under the employer’s conduct procedures at which one panel member must, in case of a doctor, be medically qualified. The Trust’s document E5 – Disciplinary Policy – sets out the formal stages, including a disciplinary hearing, once “an investigation has been undertaken in accordance with the Investigation policy and the Case Manager has subsequently determined that there is a case for the employee to answer at a disciplinary hearing” (see paragraph 1.4).

Section 4 of Appendix A is concerned with “Issues of Capability”. At paragraph 4.12, the role of the Case Manager is addressed. They must, among other things, “consider with the Medical Director and Director of Human Resources and OD whether the issues of capability can be resolved through local action (such as retraining, counselling, performance review).” Section 4 includes the process for a “capability hearing”, and the range of decisions that the capability panel can reach, which include termination of the employee’s contract.