|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> West London Mental Health NHS Trust v Chhabra  EWCA Civ 11 (25 January 2013)
Cite as:  IRLR 398,  EWCA Civ 11,  Med LR 33
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
ON APPEAL FROM QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE McMULLEN QC
(SITTING AS A JUDGE OF THE HIGH COURT)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LORD JUSTICE TREACY
| West London Mental Health NHS Trust
|- and -
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Mark Sutton QC and Miss Betsan Criddle (instructed by Messrs Radcliffes Le Brasseur) for the Respondent
Hearing dates : 4 & 5 December 2012
Crown Copyright ©
Lord Justice Pill :
The facts and the complaint
The procedure followed
"I can confirm I have now had an opportunity to consider both Dr Taylor's investigation report and Dr Chhabra's response to that report, including the attachments to your letter of 29th July. Having done so I am writing to formally advise you of how I intend to progress matters.
It is clear the investigation report highlights serious concerns regarding Dr Chhabra's conduct in relation to a number of serious breaches of confidentiality.
The report also raises concerns regarding capability in relation to the inability to communicate effectively with colleagues and/or patients and ineffective clinical team working skills.
The issues of conduct and capability are unrelated and the conduct allegations are straightforward and discrete. I am therefore proposing to deal with them under the conduct procedure. The capability issues will require the involvement of NCAS and I will write to you separately to confirm how I intend to proceed with them. It is necessary to resolve the conduct issues, one way or another, before moving on to consider how we should address the capability concerns.
The breaches of confidentiality set out in the investigation report and indicated in the terms of reference points 1. and 2. are potentially very serious allegations of misconduct, falling within paragraph 8.4 of Trust policy D4;
8.4 Gross Misconduct
8.4.1 Some instances of misconduct/poor performance will be so serious as to potentially make any relationship and trust between the Trust and the employee impossible. These fall within the category of gross misconduct and would typically include:
Serious breaches of Information Governance with regard to Data Protection, Confidentiality and Information Security;
As a result these allegations will be considered under the Trust's D4 policy and a panel will be arranged as per that procedure. The allegations to be considered are as follows:
1. Dr Chhabra breached patient confidentiality whilst reading notes and discussing patients whilst on public transport, full details of which appear in the investigation report.
2. Dr Chhabra undertook dictation on at least two occasions whilst completing mental health tribunal reports whilst on public transport, details of which appear in the investigation report.
3. Dr Chhabra whilst travelling to work on public transport would often call her secretary to discuss patient related matters breaching confidentiality, details of which appear in the investigation report."
[There followed an allegation, subsequently rejected by Dr Taylor in a second report of 16 November 2011, about alleged removal of documents from Broadmoor.]
"Due the seriousness of the conduct allegations detailed above, I must advise Dr Chhabra that as these matters are being considered as potential gross misconduct the sanction of dismissal is an option for the disciplinary panel.
As per the Trust's disciplinary procedure Dr Chhabra is entitled to bring along a trade union representative or work colleague to that hearing.
I am now in the process in arranging panel members to hear the case. I will be in contact with you shortly to confirm the panel and agree dates with Dr Chhabra for the hearing, which I will set aside a half day for.
I understand this decision will be disappointing for Dr Chhabra and as per previous correspondence should she wish to seek support from our Staff Support Team or Occupational Health, please let me know.
If you have any questions regarding the above please do not hesitate to contact me."
"I considered that it was necessary to resolve the conduct issues, one way or another given their seriousness, before the capability concerns could be resolved."
A panel has been appointed. It consists of a consultant in the same discipline as Dr Chhabra and two other persons.
Ms Jo Leech, Head of Secure Services Policy at the Department of Health, wrote a letter expressing concern regarding breaches of patient confidentiality to, initially, the security department at Broadmoor Hospital, which was then forwarded on to the Medical Director at West London Mental Health. Her letter to the Trust is dated 2 December 2010. She had described having been on a train on the 24 November 2010 and had overhead a conversation by two doctors. One of the doctors was reading a medical report on a patient whose name and details could be clearly identified. It was clear from the conversation between the two doctors that they worked at Broadmoor Hospital.
4.2 In interview and in her original letter Ms Leech described the circumstances of the railway journey. She had been sitting directly opposite two females who were talking and she became aware of the conversation because of the mention of Broadmoor Hospital and Dr Gwen Adshead. Ms Leech had previously worked at the hospital. During the train journey one of the doctors, now identified as Dr Chhabra, read reports on a patient. She had been holding them on her lap with an A4 pad of paper and had turned pages in a way that Ms Leech could clearly read the name (Mr E). She was also able to see the Section under which he is detained and other details including that this was a CPA report. Ms Leech reported that the train was crowded at the time and Dr Chhabra had this information on her lap for the most of the journey. Dr Chhabra's travelling companion also had documents but these were held close to her and no information was visible and during the journey she did place them in a bag. Ms Leech was with a colleague on the train journey and neither of them said anything to Dr. Chhabra at the time.
4.3 In addition to Ms Leech's complaint a member of secretarial staff had become anxious about confidentiality when she had been typing two tapes of Dr Chhabra's that included sounds consistent with a railway journey. The tapes lasted approximately 13 and 17 minutes and has now been typed with the sounds inserted. I have not listened to the tape myself.
4.4 Jenny Meredith (Dr Chhabra's previous PA) also stated that Dr Chhabra made telephone calls to her while she was on her journey to work during which patient information would be discussed. She also reported that Dr Chhabra took out notes from the hospital in order to complete work at home.
4.5 In interview with Dr Chhabra she admitted that she normally read notes on the train on her way to work but when no-one was sitting near her. She stated that on her way to work the train would often be empty. However, she did admit to reading the CPA notes on patient Mr E whilst on the train journey in November 2010. She was unaware of who was sitting opposite her but she was aware that the train was full. She had not been aware that the patient's name was visible but accepted Ms Leech's account. She did not appreciate at the time that her practise compromised confidentiality. Dr Chhabra also admitted to dictating two reports on the train. She explained that this occurred in one week when she had felt pressured by work and wanted to have reports completed in good time. She believed that she had ensured that there were no passengers close by. On the issue of Dr Chhabra making telephone calls to work, Dr Chhabra believed that these were not made in public places but in her own car. She was of the opinion that these were usually diary checks and lasted approximately less than a minute. She denied that she had discussed patient information to secretarial staff whilst in public places.
4.6 Dr Chhabra has admitted to breaching patient confidentiality on two occasions by; 1. having patient documents clearly visible in a public environment and 2 dictating two reports which included patient sensitive information in a public arena. I would further conclude Dr Chhabra would have had to refer to patient information whilst undertaking this dictation. On that basis Dr Chhabra did not therefore make appropriate efforts to protect the patient's confidentiality. This is a breach of the GMC good medical practice guidance, particularly paragraphs 21(d) and 37. There is obviously a difference of opinion with respect to the telephone contact between Dr Chhabra and her PA with respect to the content of those discussions and when these discussions took place. Dr Chhabra stated that she has subsequently completed the online information governance training, however, she had previously attended Trust induction programmes which would have reminded her of information governance. Confidentiality is a clear responsibility of all those working within the healthcare professions and is a responsibility of all doctors as outlined in GMC's good medical practice. The investigation therefore upheld the first two complaints."
It was envisaged, in the second section of the report, that the capability issues would involve the participation of NCAS.
"In summary I have been asked to investigate a number of complaints about Dr Chhabra. The first of these complaints was concerning breaches in confidentiality. The investigation has found that these complaints can be upheld and Dr Chhabra has breached patients' confidentiality through the reading of notes and dictation in public areas on more than one occasion. Due to this and the nature of the working environment and patients at Broadmoor this is a serious breach of the GMC guidelines on confidentiality."
"To fulfil your role in the doctor-patient relationship you must:
(d) respect patients' privacy and right to confidentiality."
The document also provides that, where the word "must" is used, an "overriding duty or principle" is involved.
"I think your decision to separate the two issues is absolutely right. The NCAS solution is excellent - I had thought of that but was not sure that solutions were my remit. I really hope that she can see that as a positive way forward. The confidentiality issues have to be taken more seriously and addressed through the right routes- I was concerned that the capability issues would muddy the waters. I hope her solicitors see that you are being reasonable and trying to support her. Do you have any idea of timescales for the hearing- my diary is filling up- lots of shenanigans at work. There are some dates I will definitely not be available."
"The new approach recognises the importance of seeking to tackle performance issues through training or other remedial action rather than solely through disciplinary action. However it is not intended to weaken accountability or avoid disciplinary action where there is genuinely serious misconduct."
Some of the cases cited involved consideration of the now replaced procedures.
"This is an agreement between West London Mental Health Trust and the Local Negotiating Committee ("LNC") outlining the employer's procedure for handling concerns about doctors' conduct and capability. It implements the framework set out in 'Maintaining High Professional Standards in the Modern NHS', issued under the direction of the Secretary of State for Health on 11 February 2005.
This new procedure replaces the current profession specific disciplinary procedures contained in circular HC(90)9, as well as the Special Professional Panels ("the three wise men") covered in HC(82)13 and the right of appeal to the Secretary of State held by certain practitioners under paragraph 190 of the Terms and Conditions of Service has been abolished.
Should this policy be amended to reflect any future national advice or guidance, this will only be done by the agreement of the LNC.
This procedure should be read in conjunction with the Trust's disciplinary policy, D4."
D4A continued, at paragraph 1.8:
"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."
Paragraph 1.11 provides:
"Having discussed the case with the NCAS, the case manager will decide whether an informal approach can be taken to address the problem, or whether a formal investigation will be needed."
"Where it is decided that a more formal route needs to be followed (perhaps leading to conduct or capability proceedings) the Medical Director will, after discussion between the Chief Executive and Director of Human Resources, 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."
It was on that basis that Dr Taylor was appointed as case investigator. Subsequent paragraphs in the policy deal with the case investigator's role.
"The case investigator:
- Is responsible for leading the investigation into any allegations or concerns about a practitioner, establishing the facts and reporting the findings;
. . .
- Will ensure that there are sufficient written statements collected to establish a case prior to a decision to convene any disciplinary panel, and on aspects of the case not covered by a written statement, ensure that oral evidence is given sufficient weight in the investigation report."
"1.14. The case investigator does not make the decision on what action should be taken nor whether the employee should be excluded from work and will not be a member of any disciplinary or appeal panel relating to the case.
1.15. The practitioner concerned must be informed in writing by the case manager, as soon as it has been decided, that an investigation is to be undertaken, the name of the case investigator and made aware of the specific allegations or concerns that have been raised. The practitioner must be given the opportunity to see any correspondence relating to the case together with a list of the people that the case investigator will interview. The practitioner must also be afforded the opportunity to put their view of events to the case investigator and given the opportunity to be accompanied.
. . .
1.17. 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.
. . .
1.19. The case investigator will complete the investigation within 4 weeks of appointment and submit their report to the case manager within a further 5 days. The report of the investigation will give the case manager sufficient information to make a decision whether:
- There is a case of misconduct that should be put to a conduct panel;
- There are concerns about the practitioner's health that should be considered by the NHS body's occupational health service;
- There are concerns about the practitioner's performance that should be further explored by the NCAS;
- Restrictions on practice or exclusion from work should be considered;
- There are serious concerns that should be referred to the GMC;
- There are intractable problems and the matter should be put before a capability panel;
- No further action is needed."
"2.1 to establish as far as practicable what has happened and why.
2.2 to ensure future decisions are rational and made on the basis of evidence.
2.3 to meet the requirement to demonstrate that natural justice has been observed.
2.4 to form the basis of any case presented to a Disciplinary Panel.
2.5 to ensure decisions made by the Trust are capable of scrutiny either through an internal appeal or by an Employment Tribunal or court of law."
It was on that basis that Dr Taylor reported to the case manager, Dr Broughton.
"There will be occasions where the Trust considers that there has been a clear failure by an individual to deliver an adequate standard of care, or standard of management, through lack of knowledge, ability or consistently poor performance. These are described as capability issues. Matters that should be described and dealt with as misconduct issues are covered in part 3 of this procedure."
Paragraph 4.5 provides:
"It is inevitable that some cases will cover both conduct and capability issues. It is recognised that these cases can be complex and difficult to manage. If a case covers more than one category of problem, they should usually be combined under a capability hearing although there may be occasions where it is necessary to pursue a conduct issue separately. Although it is for the Trust to decide upon the most appropriate way forward having consulted the NCAS in the event of a dispute the practitioner may make representations to the designated board member. The individual is also entitled to use the Trust's grievance procedure if they consider that the case has been incorrectly classified. The Individual may also seek advice from the Chair of the LNC with respect to their concerns."
"1.1 The Policy applies to all staff of the West London Mental Health NHS Trust and has been prepared in consultation with the appropriate Trade Unions.
1.2 Purpose of Policy
1.2.1 The purpose of the Disciplinary Policy is to ensure that, as far as is possible, disciplinary (or potential disciplinary) matters are dealt with quickly, consistently and reasonably, taking into account the individual circumstances of each case. The intention is that, wherever possible, disciplinary outcomes or sanctions lead to an improvement in conduct in such a way that subsequent disciplinary action is unnecessary."
Amongst the "principles" to be applied, it is stated in Part 3:
"3.5 No disciplinary action will be taken against a member of staff until the case has been properly investigated. It may be appropriate for a member of staff to be suspended while an investigation takes place (see Section 7).
3.6 A member of staff who is the subject of formal disciplinary proceedings must:
- be told in writing of the complaint against them in advance of any disciplinary hearing;
- be provided with copies of any written evidence, including copies of witness statements and copies of the Management Investigation, forming the basis for the complaints;
- be given the opportunity to state their case and challenge any evidence before any final decision is made.
3.7 A member of staff under investigation for alleged misconduct or facing formal disciplinary proceedings has the right to be assisted/accompanied by an accredited trade union representative or a colleague who is also employed by the Trust. Both colleagues and accredited staff representatives are entitled to present evidence on behalf of the employee under investigation. However, there is an expectation that the employee under investigation will be required to respond, in person, to questions from the investigating officer during the investigatory process and from panel members at any subsequent hearing."
"Ensure adherence to all Trust policies, especially in respect of the confidentiality of information relating to both patients and staff."
"The following is detailed and wide - ranging in order to provide the optimum possible guidance to staff. It is not however exhaustive and staff must be aware that any behaviour which is not specifically mentioned below but which is a clear breach of the established standard of conduct expected of employees of the Trust, may still lead to disciplinary action."
At 13.4 "Gross Misconduct" is defined:
"Some instances of misconduct/poor performance will be so serious as to potentially make any further relationship and trust between the Trust and the employee impossible. These fall within the category of gross misconduct and would typically include:
theft, fraud, falsification of records (including eligibility to work);
unauthorised access to records;
assault or fighting, deliberate damage;
incapability through alcohol;
possession, or the use of, prohibited drugs;
serious negligence causing loss, injury or damage;
serious breaches of security;
serious breaches of the "Staff Charter – Rights & Responsibilities" or the "Code of Conduct for (senior) NHS Managers";
causing wilful damage to hospital property;
deliberate misuse of hospital equipment;
repetitive serious offences;
bullying and/or harassment;
failure to register with the appropriate professional body (where registration is mandatory);
refusal to undertake a reasonable management request;
a single very serious incident of poor performance."
"A 'fair blame' approach to dealing with matters which might otherwise have been dealt with under formal Disciplinary Procedures reflects a desire on the part of the Trust and the trade unions to move towards a philosophy of personal responsibility, where mistakes are openly acknowledged, individual and organisational learning takes place and changes are made to behaviour and systems to avoid such errors in the future. This does not alter the existing responsibilities on managers and supervisors to continue to use best practice and other Trust policies to manage conduct and performance, and serious matters will continue to be dealt with under the formal Disciplinary procedure. The Fair Blame procedure will deal with appropriate matters of performance and conduct which do not constitute potentially serious or gross offences."
"Once the Investigation Report has been completed, the Commissioning Manager will determine whether there is a case to answer and the potential seriousness of the offence. Provided the Commissioning Manager concludes that the matter is not a potentially serious or gross offence, they will offer the opportunity to the employee for the matter to be dealt with through a 'Fair Blame' review."
A sanction may be awarded following a Fair Blame review but is limited to "the level of a first written warning, to be placed on file up to a maximum period of 12 months."
"The panel must primarily decide if, on the balance of probabilities, the offence did take place. If they are satisfied that it did and that misconduct is proved, the Panel conducting the hearing must, in deciding what action is appropriate, take into account the following:
- the employee's disciplinary record;
- any mitigating circumstances ;
- the nature and seriousness of the misconduct."
It is stated in paragraph 22.1.2:
"Subsequent action may include dismissal."
"This is a claim for an injunction to restrain the defendant from going ahead with disciplinary charges relating to breaches of patient confidentiality while criticisms of the claimant are on foot in separate capability proceedings. Patient confidentiality is rightly viewed as a high priority by all concerned in this case. The public needs to be protected through professional standards which are maintained in relation to patient confidentiality."
"He comes across as a manager . . . who places great stock in confidentiality and a doctor's duty and he is right to do so."
At paragraph 84, the judge accepted the submission of counsel that "matters relating to confidentiality which emerged from the Taylor report are aptly described as conduct", though adding that they could also be described "as contributing to an analysis of her performance."
"Dr Taylor, where there was a dispute between two people about an event or a conversation, she was prepared to take the side of the practitioner unless there was clear evidence. Only a fragment of the allegations of breach of confidentiality was upheld by Dr Taylor and, as I see it, Dr Broughton did not appreciate the fine distinctions (yet distinctions they are) between what went to Dr Taylor and what came back from her."
"There was no finding by Dr Taylor that the claimant had breached patient confidentiality by discussing patients while on public transport."
I respectfully disagree with that particular conclusion. Dr Broughton was justified in concluding that Dr Chhabra was "discussing patients while on public transport" from the contents of Dr Taylor's report, at paragraph 4.2, of the conversation between the two females on the train.
". . . as a matter of construction of Dr Taylor's report, the charges do not bear the weight which Dr Broughton gives them . . . He simply did not see Dr Taylor's report in the correct light and therefore went ahead on the basis of an enlarged criticism of the claimant which Dr Taylor did not support."
"In my judgment, the claimant was entitled as a matter of contract to have these matters determined in a way which was not under a charge of gross misconduct for which she was dismissible. . . . it is not simply classifying these matters as conduct or even misconduct, it is whether the Trust was correct as a matter of law to categorise them as gross misconduct in the decision letter. In my judgment, it erred in so doing and was not entitled to enforce its right of discipline in respect of that."
Paragraph 87, the judge added:
"But, in my judgment, he [Dr Broughton] broke the claimant's contract when he levied these charges against her for they were not grounded sufficiently in the Taylor report."
"In a case where the Taylor report showed some background, explaining the events relating to the breach of confidentiality, these matters were bound by 4.5 [of D4A] to be put through NCAS."
Believing that it would be Dr Taylor who would present the case against Dr Chhabra at the disciplinary panel, the judge concluded that:
"It would be difficult for Dr Taylor to present, in the light of the material disclosed in this case, a clear-cut case of gross misconduct."
"These are procedural breaches but they do not, in my judgment, count as an attack on the implied term trust and confidence in prejudgment of the case against the claimant."
". . . it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as is the case here, the employee's reputation or ability to work in his or her chosen field of employment is likely to be affected by a finding of misconduct."
He added, at paragraph 71:
". . . that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him."
"The effect of sections 1 and 3(1) therefore, is that Parliament has decided, at least in most cases, that contractual force should be given to applicable rules and procedures."
That applies to D4 and D4A in this case, it was submitted, and that is not disputed.
"It does (in other words) connote a deliberate flouting of the essential contractual conditions."
". . . If, as Francis found, her decision to grant unescorted leave was inappropriate, nevertheless "it did not amount to serious professional incompetence". In the light of those findings it seems to me that this is not a case "where there is genuinely serious misconduct" which permits a disciplinary hearing. Her capability to practise was not called in question by the Francis panel: on the contrary her competence was vindicated.
In my judgment the threshold for invoking any disciplinary procedure is not crossed and the Trust are not entitled to commence disciplinary action under Part IV."
Mr Sutton submitted that the threshold had not been crossed in the present case.
"The reasons for dealing separately with the allegations about misconduct were and are, to my mind, overwhelming."
"The procedure does not require that there should have been an investigation of precisely the allegation that is later the subject of a charge against the practitioner. That would be unworkable, and is not demanded by the paragraphs of the Practitioners Disciplinary Procedure upon which Dr Hussain relies. Paragraph 1.15 requires that the practitioner be made aware of 'the specific allegations or concerns that have been raised', but that refers to the allegations and concerns at the time of the investigation: it does not mean that the allegations and concerns cannot be developed, modified or changed by the time that a case of misconduct is referred to a disciplinary panel. Paragraph 1.19 contemplates that the case manager will decide whether 'There is a case of misconduct that should be put to a conduct panel', not whether the precise allegation or concern that was originally raised should be so referred. What is required is that the investigation sufficiently examines the matter for the case manager to be able fairly to decide on the basis of the investigator's report how the matter should be handled. In my judgment, in this case the investigations were sufficient for that purpose."
"My wording was a reflection of the seriousness of those actions and I felt they would only properly be dealt with by being heard by a disciplinary hearing".
Lord Dyson added:
"The grant of injunctive or declaratory relief for an actual or threatened breach of contract would not jeopardise the coherence of our employment laws and would not be a recipe for chaos . . ."
"If there has been a failure by the Trust in adopting the wrong procedure, Mr Skidmore is entitled to appropriate relief."
Lord Justice Jackson :
Lord Justice Treacy :