Doctor granted interim injunction over potential incorrect categorisation of misconduct as 'gross' misconduct

The High Court has awarded a consultant psychiatrist an interim injunction, which prevents her NHS Trust employer from proceeding with a disciplinary hearing pending a full trial. The judgment serves as a reminder of the enhanced contractual protections doctors are afforded under Maintaining High Professional Standards in the Modern NHS (MHPS) and how far this protection extends.  

Brief facts

Dr Ardron is employed as a consultant psychiatrist and has been subject to disciplinary proceedings in relation to the care given to a 19 year-old in her care (referred to in the case as “JO”). JO was remanded at HMP Lewes, where Dr Ardron carried out some of her duties. JO had attempted suicide and Dr Ardron sought that he be transferred to a medium secure psychiatric facility. After this assessment, she reviewed him on a number of other occasions which were not documented. Her explanation is that she had not been provided with a computer compatible with the prison’s system. Dr Ardron continued to follow up JO’s transfer to a mental health unit and started to liaise about a private placement. JO committed suicide before a transfer could be facilitated.

The NHS Trust employer commenced an investigation under MHPS regarding a number of concerns about Dr Ardron’s conduct and capability. Upon completion of the investigation, the case manager considered that the matters raised were matters of conduct rather than capability. They covered what he regarded as serious failings in the following areas (in summary): Dr Ardron's attendance at ward rounds; clinical assessment, formulation, and treatment planning; on-going assessments and ongoing management of risk; on-going clinical reviews of the patient; record keeping; and provision of clinical and professional leadership. 

Dr Ardron was notified that she would be required to attend a disciplinary hearing and that the matters that would be considered were allegations of negligence, wilful breach of professional codes of conduct, and breach of trust and confidence, which fell within the examples of gross misconduct given within the Trust's Disciplinary Policy and Procedure. She was also told that an outcome of the disciplinary hearing could be her summary dismissal.

Prior to the disciplinary hearing taking place Dr Ardron applied for an injunction in the High Court, seeking to restrain her employer from proceeding with the disciplinary hearing. She has been awarded an interim injunction, on the basis that there is a serious issue to be tried, and her case will be heard before the High Court in full in due course.

Dr Ardron’s case is that in convening a disciplinary hearing the NHS Trust will be in breach of her contract of employment. She argues that the findings of fact and evidence to be put to the disciplinary panel cannot, even taken at their highest, amount to gross misconduct. 

The High Court’s decision

The High Court has concluded that whilst the allegations against Dr Ardron fall within the categories of gross misconduct in the Trust’s Disciplinary Policy, it does not necessarily follow that they meet the higher threshold of what amounts to gross misconduct in law. 

The judge highlighted that, at various points, the investigation report described Dr Ardron’s behaviour as “careless” or “inappropriate” and that she had made regrettable errors of judgement. The judge found that such descriptions do not appear consistent with the contention that Dr Ardron’s conduct amounted to gross misconduct. 

Further, the judge remarked that it was difficult to see that Dr Ardron’s behaviour was so seriously wrong as to destroy the employment relationship or that it demonstrated a wilful and culpable disregard of professional standards.

The judge also expressed a concern that some of the allegations to be put before the disciplinary panel had not actually been investigated. He gave the example that the case before the disciplinary panel included the following: “ward reviews did not occur although Dr Ardron was in the prison".

In contrast, the case investigator had concluded that there was a lack of documentation in the clinical record to sufficiently evidence that the reviews did occur on the dates scheduled for them. The judge noted that there is a difference between a finding of no reviews and a finding of a lack of evidence.

The interim injunction

In awarding an interim injunction, the judge has not reached a final conclusion as to whether Dr Ardron’s contract of employment has been breached: all that has been found at present is that Dr Ardron has raised a serious issue to be tried, and Dr Ardron’s case will be considered at a full trial in due course. In the meantime, however, the NHS Trust is unable to proceed with the disciplinary hearing.

Comment

The judgment does highlight the level of scrutiny of MHPS terms of reference, investigation reports and allegations put before disciplinary panels. 

If you have any queries about these matters, do contact the team at Mills & Reeve.

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