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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) (01 August 2011) URL: https://www.bailii.org/ew/cases/EWHC/QB/2011/2068.html Cite as: [2011] EWHC 2068 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Deputy High Court Judge)
____________________
![]() ![]() |
Claimant |
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- and – |
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THE UNIVERSITY HOSPITALS OF COVENTRY AND WARWICKSHIRE NHS TRUST |
Defendant |
____________________
instructed by Ashfords
John Cavanagh QC and Jennifer Jones for the Defendant instructed by Plexus Law
Hearing dates: 5, 6, 7, 8 and 11 July 2011
____________________
Crown Copyright ©
Timothy Straker QC:
DATE |
DESCRIPTION OF EVENT |
1 February 1998 | ![]() ![]() |
February 2002 | ![]() ![]() |
25 July 2007 | The Trust's chairman, Phil Townshend, and the Interim Medical Director (Mr Ward) met with ![]() ![]() ![]() ![]() |
Around September 2007 | Mr Kennedy took over the role of Interim Medical Director and wrote to ![]() ![]() |
23 April 2008 | ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
8 July 2008 | Mr Kennedy wrote to ![]() ![]() • Up to a maximum of £850 per week rental cost for a two bedroom flat close to the Hammersmith and Royal Brompton Hospitals; • The cost of council tax, utility bills and telephone line rental; and • The cost each week of a standard return rail fare from Warwick to London each week to enable ![]() ![]() |
16 August 2008 | Copies of the signed Placement Agreement were forwarded to the Medical Directors of the Hammersmith and the Royal Brompton Hospitals for their signatures. An accompanying letter explained that Mr Kennedy had also asked ![]() ![]() |
20 July 2008 | ![]() ![]() |
30 November 2008 | Mr Kennedy wrote to ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
30 November 2008 | Mr Kennedy amended the Action Plan and returned it with his letter. The only amendment made was to remove the reference to 6 months training in the USA … Mr Kennedy asked ![]() ![]() |
9 January 2009 | Mr Kennedy wrote to ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
No response was received to that request. |
|
25 March 2009 | Mr Kennedy wrote to ![]() ![]() ![]() ![]() |
10 June 2009 | A meeting was held with Mr Kennedy, ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
4 September 2009 | Mr Kennedy wrote to ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
Mr Kennedy subsequently extended his deadline to 16 September 2009 due to ![]() ![]() |
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16 September 2009 | Ian Mckivett (![]() ![]() ![]() ![]() |
25 September 2009 | Mr Kennedy wrote to Mr Mckivett to confirm that he was not prepared to withdraw his instructions for ![]() ![]() ![]() ![]() |
"I have taken into account the background to this hearing. I first wrote toDr Mattu
on 27 July 2010 requiring his attendance at a disciplinary hearing on 12 and 13 August 2010. You requested a postponement of that hearing to give
Dr Mattu
further time to prepare and asked that it be held over shorter days by way of reasonable adjustment in light of
Dr Mattu
's medical condition. I granted all your requests, postponed the hearing for 2 weeks and re-scheduled it in accordance with your request for more, but shorter, sessions. It was then due to take place on 31 August, 1, 7 and 10 September 2010.
Dr Mattu
was certified fit for work by his GP on 2 August 2010 with a recommendation that he return to work on a phased basis.
On 19 August 2010 you requested that I postpone the disciplinary hearing again as it clashed with a period of your own annual leave. I agreed and confirmed that the hearing would not take place on 31 August or 1 September but would go ahead on 7 and 10 September 2010 to accommodate this.
On 27 August 2010, I postponed the disciplinary hearing a third time from these dates in September to a series of short sessions commencing on 11 October 2010 in response to your request for further preparation time for yourself andDr Mattu
and a longer hearing slot.
You applied once again to postpone the disciplinary hearing on 22 September 2010 as you advised thatDr Mattu
had suffered a significant deterioration in his health. According to his GP
Dr Mattu
remained fit for work at this time.
On 5 October 2010Dr Mattu
was signed off work for 2 weeks.
On 7 October 2010 I postponed the disciplinary hearing a fourth time from the week commencing 11 October 2010 in response to your application and in order to enable the Trust to investigate the position with regard toDr Mattu
's health.
The Trust sought to obtain the advice of an Occupational Health Consultant in relation toDr Mattu
's health in view of this apparent change in his condition. Despite offering 3 different appointments to
Dr Mattu
, the Trust has not to date been able to obtain that advice as
Dr Mattu
has not attended any of the appointments offered or provided his consent to permit his medical records to be examined. Indeed, I understand that
Dr Mattu
is not prepared to be seen by
Dr
Davies, the Independent Occupational Health Consultant who has been instructed by the trust to provide this opinion.
You advised the Trust that you understood thatDr Mattu
had been admitted to hospital for investigation on 7 October 2010.
On 15 October 2010 I postponed the disciplinary hearing a fifth time in light of this information and to allow further time for the occupational health assessment to take place.
On 28 October 2010 I took the decision to reconvene the disciplinary hearing for dates commencing on 10 November 2010 as it was by that stage clear thatDr Mattu
was not prepared to cooperate with an assessment of his condition and fitness by the Trust's chosen Occupational Health Consultant.
On 4 November 2010 you advised Mr McMenemy that you had in fact not notifiedDr Mattu
of the reconvened hearing dates. I was therefore obliged to postpone the hearing a sixth time and therefore caused
Dr Mattu
to be advised by letter of 5 November 2010 that he would not be required to attend the hearing until 16 November 2010.
You are now requesting that I postpone the disciplinary hearing for a seventh time.
In accordance with the Trust's Procedure for Conduct and Capability Concerns in Relation to Medical and Dental Staff (paragraph 1.19) the investigation process should have been completed within 4 weeks. Thereafter, the Trust's Disciplinary and Appeals Procedure envisages that not less than 7 days' notice of a disciplinary hearing is given to the employee and a decision reached following a disciplinary hearing within 7 days. InDr Mattu
's case, the disciplinary investigation commenced approximately 11 months ago and a disciplinary hearing has not yet taken place.
I do not share the view expressed in your email of 8 November that "there is no pressing need to hear the case". Not only has this process significantly exceeded the timescales provided for by the Trust's procedures, but I am mindful of the fact that memories fade and I am being asked to make findings about matters which took place some time ago. For example, in relation to the first allegation, the history ofDr Mattu
's re-skilling programme and the agreement or otherwise of its content dates back to September 2007. In relation to the second allegation, the events are now almost a year old. In order to do justice to both
Dr Mattu
's case and that of the management side, further delay needs to be avoided. There are a number of people in addition to
Dr Mattu
who are involved in this process, and whose professional integrity
Dr Mattu
has called into question. I have also taken their need for the resolution of these issues into account.
I have reviewed the medical information that has been sent to me atDr Mattu
's request. The most recent information I have is a brief letter from
Dr
Maher dated 21 October 2010. Whilst indicating that
Dr Mattu
was not well at the time of writing, this letter gives no prognosis as to when he is likely to be well, and in particular well enough to attend a disciplinary hearing. As at today's date, I do not know where
Dr Mattu
is or what his current state of health is. I have tried on a number of occasions to obtain an update as to his condition in the last month but have not been able to do so and have been accused as a consequence (including being reported to the police) for allegedly harassing him.
The limited medical information that I have indicates that stress exacerbatesDr Mattu
's underlying physical condition. Given that a disciplinary hearing of this nature is unavoidably stressful, I have no information before me to suggest that
Dr Mattu
is ever, or within a reasonable timeframe, likely to be well enough to participate in this process.
I am particularly concerned that I am now being asked to postpone the disciplinary hearing for an unspecified period of time. When you first requested a postponement of the disciplinary hearing on 2 August 2010, you did so on the assurance to me that "Dr Mattu
is very shortly i.e. around the middle of the month going to be ready to engage in meetings, investigations and hearings". That did not happen. There have been further suggestions in correspondence since that time that
Dr Mattu
's health will soon enable him to participate in the process but none of these have in fact proved accurate.
When considering this application to postpone it seems to me only appropriate that I assess how long it is likely to be before a reconvened hearing can go ahead. The history of this matter is such that if I postpone the hearing again I have little confidence that it will take place within a reasonable timescale and withDr Mattu
's full engagement. Notwithstanding the fact that
Dr Mattu
was, in the opinion of his GP, fit to work from 2 August to 5 October 2010, the resolution of these disciplinary matters moved no further forward during that 2 month period, for example. Indeed, you wrote to the Trust on 7 October 2010 with the bald statement that "no preparation has been undertaken whatsoever by
Dr Mattu
" in relation to the disciplinary hearing. I find this very worrying and not consistent with your suggestion that
Dr Mattu
is eager to engage with this process so as to "clear his name". This also means that, in addition to postponing the hearing long enough for
Dr Mattu
to be well enough to attend (however long that may be), I am also presumably being asked to postpone the hearing for a further period of weeks to permit
Dr Mattu
to prepare, although I have already postponed the hearing for more than once for this purpose.
Finally, I have taken into account thatDr Mattu
has been represented by yourself, an experienced professional representative, throughout this process and that you are fully familiar with the background to the case and
Dr Mattu
's position in relation to the re-skilling process and the other issues arising, having corresponded and attended meetings with Trust Executive Directors in relation to these issues on
Dr Mattu
's health at great length over many months. I reiterate that you are welcome to attend the disciplinary hearing to put forward his case even if
Dr Mattu
is not able to accompany you. Please confirm by close of business today if you will be in attendance."
CONCLUSION
DATE |
DESCRIPTION OF EVENT |
1 May 1997 | ![]() ![]() |
1 February 1998 | ![]() ![]() |
Around June 2000 | ![]() ![]() |
February 2002 | ![]() ![]() |
July 2007 | ![]() ![]() |
25 July 2007 | The Trust's chairman, Phil Townshend, and the Interim Medical Director (Mr Ward) met with ![]() ![]() ![]() ![]() |
Around September 2007 | Mr Kennedy took over the role of Interim Medical Director and wrote to ![]() ![]() |
21 September 2007 | An Occupational Health report confirmed that ![]() ![]() |
In October 2007 | Mr Kennedy met with ![]() ![]() ![]() ![]() ![]() ![]() |
In October 2007 | Richard Kennedy sought advice from Professor Cobbe of the Department of Cardiology at the Glasgow Royal Infirmary in respect of a suitable retraining programme. |
November 2007 | Guidance from Professor Cobbe was received which suggested a 6 month period of mentoring reintroduction of clinical practice. |
7 November 2007 | Mr Kennedy wrote to ![]() ![]() ![]() ![]() |
13 November 2007 | Mr Kennedy wrote to ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
19 November 2007 | Catherine Stokes, Head of Medical Staffing, wrote to ![]() ![]() |
21 November 2007 | Mr Kennedy wrote to ![]() ![]() ![]() ![]() ![]() ![]() |
21 November 2007 | ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
23 November 2007 | A meeting between Mr Kennedy and ![]() ![]() ![]() ![]() ![]() ![]() |
27 November 2007 | ![]() ![]() |
3 December 2007 | ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
7 December 2007 | Mr Kennedy and ![]() ![]() ![]() ![]() |
6 and 19 December 2007 | ![]() ![]() ![]() ![]() ![]() ![]() |
3 January 2008 | ![]() ![]() |
9 January 2008 | Mr Kennedy wrote to ![]() ![]() |
31 January 2008 | ![]() ![]() |
7 February 2008 | The Chairman wrote to ![]() ![]() ![]() ![]() |
11 February 2008 | Ian Stone, NCAS wrote to Mr Kennedy to confirm that NCAS remain willing to assist in the return to work process. |
3 March 2008 | Mr Kennedy wrote to ![]() ![]() |
7 April 2008 | Mr Kennedy wrote to ![]() ![]() |
17 April 2008 | The Chairman wrote again to ![]() ![]() ![]() ![]() |
23 April 2008 | ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
1 May 2008 | ![]() ![]() |
16 May 2008 | Chief Executive wrote to ![]() ![]() ![]() ![]() |
9 June 2008 | ![]() ![]() |
19 June 2008 | ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
8 July 2008 | Mr Kennedy wrote to ![]() ![]() • Up to a maximum of £850 per week rental cost for a two bedroom flat close to the Hammersmith and Royal Brompton Hospitals; • The cost of council tax, utility bills and telephone line rental; and • The cost each week of a standard return rail fare from Warwick to London each week to enable ![]() ![]() |
14 July 2008 | A Placement Agreement (not an Action Plan) governing a return to work programme was signed by Mr Kennedy and ![]() ![]() |
16 August 2008 | Copies of the signed Placement Agreement were forwarded to the Medical Directors of the Hammersmith and the Royal Brompton Hospitals for their signatures. An accompanying letter explained that Mr Kennedy had also asked ![]() ![]() |
20 July 2008 | ![]() ![]() |
23 September 2008 | ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
22 October 2008 | ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
24 October 2008 | ![]() ![]() ![]() ![]() |
November 2008 | The first version of the re-skilling Action Plan was submitted to Richard Kennedy by ![]() ![]() ![]() ![]() |
30 November 2008 | Mr Kennedy wrote to ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
30 November 2008 | Mr Kennedy amended the Action Plan and returned it with his letter. The only amendment made was to remove the reference to 6 months training in the USA on page 20 of the Action Plan Mr Kennedy asked ![]() ![]() ![]() ![]() |
10 December 2008 | ![]() ![]() |
10 December 2008 | In a further letter to Mr Kennedy, ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
9 January 2009 | Mr Kennedy wrote to ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
No response was received to that request. |
|
24 February 2009 | A re-skilling meeting took place to discuss the sign off of the Action Plan. At the meeting ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() At this meeting it was also established that ![]() ![]() |
February 2009 | Mr Kennedy sought guidance on academic re-skilling from Professor Martin Underwood, Acting Dean of Warwick Medical School. Professor Underwood confirmed that in his opinion a period of six months academic re-skilling was unnecessary. |
February 2009 | Mr Kennedy also sought guidance from Ian Stone, NCAS. Mr Stone confirmed that in his opinion the Action Plan should confine itself to the contractual duties, to update knowledge and restore skills to a level where ![]() ![]() |
25 March 2009 | Mr Kennedy wrote to ![]() ![]() ![]() ![]() |
30 March 2009 | ![]() ![]() |
10 June 2009 | A meeting was held with Mr Kennedy, ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
18 June 2009 | Mr Kennedy wrote to ![]() ![]() ![]() ![]() |
20 July 2009 | ![]() ![]() |
13 August 2009 | Ian Stone, NCAS, wrote to Mr Kennedy in respect of the amended Action Plan. Mr Stone's view was that the Action Plan had moved outside what had been recommended by NCAS. |
4 September 2009 | Mr Kennedy wrote to ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
Mr Kennedy subsequently extended his deadline to 16 September 2009 due to ![]() ![]() |
|
16 September 2009 | Ian Mckivett (![]() ![]() ![]() ![]() |
25 September 2009 | Mr Kennedy wrote to Mr Mckivett to confirm that he was not prepared to withdraw his instructions for ![]() ![]() ![]() ![]() |
Note 1 Section 2, page 129-131. [Back] Note 2 Section 5, pages 2434-2440. [Back] Note 3 A chronology, generally referable to Note 4 Section 2, pages 218-235. [Back] Note 5 The relevant form initiating proceedings was produced. It is 151 pages long. [Back] Note 6 In particular the Medical Act 1983 and the General Medical Council (Fitness to Practise) Rules 2004. [Back] Note 7 Section 2, pages 129-131. [Back] Note 8 Section 2, pages 103-121. [Back] Note 9 Section 2, pages 132-190. [Back] Note 10 Section 2, pages 191-217. Section 2, page 236-246 respectively. [Back] Note 11 Section 2, page 193. [Back] Note 12 Section 2, page 194. [Back] Note 13 Section 2, page 194. [Back] Note 14 Section 2, page 195. [Back] Note 16 Section 2, page 205. [Back] Note 17 Section 2, page 205 (It can be observed that the relevant paragraph in the document, 3.2, omits the word ‘not’). [Back] Note 18 Section 2, page 236. [Back] Note 19 Section 2, page 244. [Back] Note 20 Section 2, page 132. [Back] Note 21 Section 2, page 134. [Back] Note 23 Section 2, page 158. [Back] Note 24 Section 2, pages 247-294. [Back] Note 25 Section 2, pages 218-235. [Back] Note 26 Section 2, page 268. It can also be noted that there was a review of the contractual documentation: Section 2, page 272. [Back] Note 27 Section 2, page 264. [Back] Note 28 Paragraph 4 of Note 29 Section 2, page 252. [Back] Note 30 See, Section 4, pages 1563-5, 1595; section 5, pages 2397-2401, 2419-2421; section 6, pages 2450, 2452. [Back] Note 31 Section 2, page 277. [Back] Note 32 Section 5, pages 2441-2443. [Back] Note 33 A publication supported by the Department for Work and Pensions. It was contributed to by the Royal College of General Practitioners. [Back] Note 34 Section 2, page 444. [Back]Dr Mattu
’s health, was produced by
Dr Mattu
’s lawyers. [Back]
Dr Mattu’s skeleton argument. [Back]