Trains, pains and allegations: fairness in medical misconduct cases – Richard Booth QC

West London Mental Health NHS Trust (Respondent) v Chhabra (Appellant) [2013] UKSC 80 – read judgment

It is not unknown for lawyers or doctors to speak on a mobile phone about confidential details of a case while travelling by train. Some of you may even have left case papers out on your seat or table while you hunt down a bacon baguette from the Travelling Chef (formerly known as “Toastie Geoff” prior to rebranding). If so, read on, for this is a cautionary tale…

This appeal by Dr Chhabra was concerned with the roles of the case investigator and the case manager when handling concerns about a doctor’s performance under the disciplinary procedures introduced over eight years ago for doctors and dentists in the National Health Service. The national policy framework is known as ‘Maintaining High Professional Standards in the Modern NHS’ (MHPS), which the Trust had implemented through its own policies.

The factual summary below is derived from the Supreme Court Press Summary

FACTS

Dr Chhabra was employed by the Trust as a Consultant Forensic Psychiatrist at Broadmoor Hospital, a high security unit, on 3 September 2009. Following concerns about Dr Chhabra’s performance, Dr Nicholas Broughton, the Trust’s Medical Director and case manager for these concerns, appointed Dr Amanda Taylor, a Consultant Forensic Psychiatrist from another trust, as case investigator on 15 December 2010. He instructed Dr Taylor to investigate the following: (1) an allegation that Dr Chhabra, travelling on a busy train, discussed an incident involving a patient and read a medical report on a patient whose name and personal details could be clearly seen; (2) an allegation that Dr Chhabra had dictated patient reports when travelling on a train; (3) concerns about Dr Chhabra’s working relationship with her clinical team; and (4) a complaint from one of Dr Chhabra’s patients, made through a solicitor.

Dr Taylor found, in her report of June 2011, that Dr Chhabra had breached, and admitted breaching, patient confidentiality (1) by having patient documents clearly visible and (2) by dictating sensitive reports on the train. She also found that (3) there were difficulties within Dr Chhabra’s clinical team which were issues of capability that needed to be addressed; but (4) the solicitor’s complaint did not have merit. Dr Taylor also reported on an allegation by Dr Chhabra’s former secretary, which had not been expressly included in her terms of reference, that she had made telephone calls when travelling by train to work in which she had discussed patient information. Dr Taylor did not make any finding on the veracity of this allegation.

In response to a concern raised by Dr Chhabra, the Trust had undertaken that Mr Wishart, its associate human resources director, could take no part in the investigation. But, unknown to Dr Chhabra, Dr Taylor had communicated with Mr Wishart during the investigation. Most significantly, Dr Taylor had sent Mr Wishart a draft of her report and Mr Wishart prepared suggested amendments to the draft. The extensive amendments had stiffened the criticism of Dr Chhabra.

On 12 August 2011 Dr Broughton wrote two letters to Dr Chhabra’s solicitors. One informed her that he regarded the concerns about her team working to be matters of capability. The other stated that he proposed to put to a disciplinary panel not only the admitted breaches of confidentiality but also (i) the allegation, on which Dr Taylor had noted there had been a conflict of opinion, that Dr Chhabra, while travelling by train, had telephoned her secretary to discuss patient-related information, and (ii) a totally new allegation that Dr Chhabra had breached patient confidentiality by disclosing information via email to her medical defence organisation and legal advisers. Dr Broughton expressed the view that the charges were potential gross misconduct and that dismissal was a possible outcome of the hearing before the disciplinary panel.

Dr Chhabra’s solicitors objected to the charge of breach of patient confidentiality by disclosing information to her defence organisation and her legal advisers, which had not been the subject of Dr Taylor’s investigation. At their request the Trust agreed to instruct Dr Taylor to investigate that allegation. Dr Taylor carried out this further investigation and reported that there was no complaint to answer.

On 1 June 2012 Judge McMullen QC (a judge with significant experience of employment law) granted Dr Chhabra a declaration and injunctive relief preventing the disciplinary panel from investigating the confidentiality concerns, including those not grounded in Dr Taylor’s report, as matters of gross misconduct. The Trust appealed. On 25 January 2013 the Court of Appeal upheld the Trust’s appeal. Dr Chhabra appealed to the Supreme Court.

JUDGMENT

The Supreme Court (all five with single syllable surnames) unanimously allowed Dr Chhabra’s appeal and ordered the Trust not to pursue any of the confidentiality concerns contained in the Trust’s letter of 12 August 2011 as matters of gross misconduct; and not to pursue any confidentiality concerns without first re-starting and completing an investigation under its policy.

REASONS FOR THE JUDGMENT

The first and most significant issue concerns the respective roles of the case investigator and the case manager. The procedures do not allow the case investigator to determine the facts. Their aim is to have someone, who can act in an objective and impartial way, investigate the complaints identified by the case manager to discover if there is a prima facie case of a capability issue or misconduct. It would introduce an unhelpful inflexibility into the procedures if (i) the case investigator were not able to report evidence of misconduct which was closely related to but not precisely within the terms of reference (as in the former secretary’s allegations) or (ii) the case manager were to be limited to considering only the case investigator’s findings of fact when deciding on further procedure. Similarly, it would be unduly restrictive to require the case manager to formulate the complaint for consideration by a conduct panel precisely in the terms of the case investigator’s report. Neither MHPS nor the Trust’s policies were so inflexible or restrictive. But the procedure does not envisage that the case manager can send to a conduct panel complaints not considered by the case investigator or for which the case investigator has gathered no evidence.

Overall (and delving into the minutiae of the facts), there were a number of irregularities in the proceedings against Dr Chhabra that cumulatively rendered the convening of the conduct panel unlawful as a material breach of her contract of employment.

First, Dr Taylor’s findings were not capable, taken at their highest, of supporting a charge of gross misconduct. The breaches of confidentiality she recorded, including the former secretary’s allegations, were qualitatively different from a deliberate breach of confidentiality such as speaking to the media about a patient.

Secondly, in reaching the view that Dr Chhabra’s behaviour could amount to gross misconduct, Dr Broughton relied on the words added to the policy with effect from 28 March 2011, after the incidents in this case.

Thirdly, the Trust breached its contract with Dr Chhabra when Mr Wishart continued to take part in the investigatory process in breach of the undertaking the Trust had given. In particular, when Mr Wishart proposed extensive amendments to Dr Taylor’s draft report and Dr Taylor accepted some of them, which strengthened her criticism of Dr Chhabra, the Trust went outside the agreed procedures which had contractual effect in ways going beyond clarifying its conclusions. The report had to be the product of the case investigator. It was not.

Fourthly, Dr Broughton did not re-assess his decision that the matters were considered as potential gross misconduct after he departed from the additional complaint once he had received Dr Taylor’s second report. He was obliged to do so under the Trust’s own policy.

The cumulative effect of those irregularities was that it would be unlawful for the Trust to proceed with the disciplinary procedure and that the Court should grant relief. The categorisation of Dr Chhabra’s conduct as gross misconduct was itself a sufficient ground for injunction.

COMMENT

The Courts have repeatedly emphasised that they are not going to become involved in “micro-managing” employment disputes in the NHS where MHPS is invoked (see para 39 of judgment and Kulkarni v Milton Keynes [2010] ICR 101). Moreover, the Supreme Court is occasionally at pains to emphasise that it will not become embroiled in avenues of factual inquiry when its purpose is to determine important points of law. This case appears unusual in that the Supreme Court was prepared both to get its hands very dirty with the facts, and (rather than relying on the ability of any Trust internal hearing to cure previous unfairness) to indulge in some micro-management of this employment dispute.

There was clearly a good deal of sympathy for Dr Chhabra among the Justices of the Supreme Court. It would seem that negligent (as opposed to wilful) breaches of confidentiality may not be capable of supporting a charge of gross misconduct. Perhaps those Justices remembered their trips to the buffet car when they were young advocates…

Richard Booth QC is a barrister at 1 Crown Office Row

Sign up to free human rights updates by email, Facebook, Twitter or RSS

• The Legal Ombudsman: more than a paper tiger
• General Medical Council too late with child sex abuse complaint, rules High Court – Robert Kellar
• GP’s rights not violated by suspension from performers list