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Cite as: [2011] EWHC 1670 (QB)

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Neutral Citation Number: [2011] EWHC 1670 (QB)
Case No: HQ11X01317


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :


Dr Mahein Hussain
- and -

Surrey and Sussex Healthcare NHS Trust


Mr Giles Powell and Ms Nicola Newbegin
(instructed by Linder Myers LLP) for the Claimant
Mr Mark Sutton QC and Mr Ben Cooper
(instructed by Capsticks LLP) for the Defendant

Hearing dates: 8, 9, & 10 June 2011



Crown Copyright ©

    Mr Justice Andrew Smith :

  1. Dr Mahein Hussain, a consultant paediatrician at the East Surrey Hospital, Redhill employed by the Surrey and Sussex Healthcare NHS Trust ("the Trust"), claims that the Trust has excluded her from her work and brought and seeks to pursue disciplinary procedures in breach of her contract of employment. At the start of the trial, she also contended that the Trust was seeking to pursue disciplinary proceedings that were not in accordance with her rights under article 6 of the European Convention on Human Rights and Fundamental Freedoms ("the Convention") but, as I shall explain, the issue that gave rise to that contention was resolved by agreement between the parties during the hearing before me.
  2. At the end of the hearing on 13 June 2011 I stated my main conclusions in order to minimise the delay in having the differences between Dr Hussain and the Trust resolved, and I said that I would give my reasons and more detailed conclusions in writing, which I now do. The decision that I announced was that:
  3. i) The Trust was entitled to place some restrictions upon Dr Hussain under its procedure for excluding practitioners from work, particularly with regard to clinical practice, on and after 18 November 2010, but it was not entitled to place as extensive restrictions upon her as it did, and some of the restrictions were, and, as things stand, are, in breach of the Trust's procedures and Dr Hussain's contract of employment.

    ii) The Trust would not have been entitled to proceed to a conduct hearing against Dr Hussain on what I shall call the March charges, and it would have been a breach of the contract of employment for it to have done so. However, the Trust is entitled to proceed to a conduct hearing to determine the allegations contained in what I shall call the amended charges.


  4. The matter arises from Dr Hussain's management at the East Surrey Hospital in late June 2010 of a baby, who has been referred to as Baby S. It is not for me to decide how Dr Hussain managed Baby S or about her later conduct or whether she is to be criticised for what she did, and I describe what happened only to the extent required to explain the issues in the litigation. My description of the background events is intended to be uncontroversial, and, if I state anything that is in dispute, I should not be understood to be deciding it: I am not in a position to do so.
  5. On 16 June 2010 Baby S was admitted to the Urgent Treatment Centre at Crawley Hospital, which is also managed by the Trust. She had a lump on her chest, and a chest x-ray was taken. Baby S was discharged home into her parents' care. On 25 June 2010, the Urgent Treatment Centre received a report upon the x-ray that suggested a healing fracture of the seventh rib on the left side. The Social Services Department of the West Sussex County Council ("the Council") was told of this, and at their request Baby S was admitted to the East Surrey Hospital. On 26 June 2010 Dr Hussain took a history from Baby S's parents, examined her and ordered blood tests and a skeletal survey. She then discharged Baby S into the care of her parents. She spoke to the Social Services Department of the Council on 27 June 2010, and is said to have reported that there were no "obvious fractures" or "non-accidental injury concerns", and that there was no need for the Social Services follow up the case.
  6. At some time after 26 June 2010, Dr Jerry Vive, a consultant radiologist, reported the results of the skeletal survey, referring to fractures of the sixth rib on the left and the fourth and fifth ribs on the right. He wrote that "NAI [sc. non accidental injury] cannot be excluded". Dr Hussain wrote on a copy of this report a note dated 29 June 2010 (the "29 June 2010 note") apparently referring to a discussion that she had had about the case with Dr Vive.
  7. On 1 July 2010 a Senior House Officer, Dr Swati, consulted Dr Vive's report and made a record of doing so in the clinical notes. She wrote that she contacted Dr Hussain and that "She [sc Dr Hussain] is aware of findings". Dr Hussain wrote a remark against Dr Swati's note, "But did not ask for anything to be done", and dated her remark 5 July 2010. I refer to this as the "5 July 2010 entry".
  8. On 5 July 2010 Dr Hussain again spoke to the Social Services Department about the case, and also spoke to a police child protection officer. On the same day she wrote in a letter to the Social Services Department that on 27 June 2010 she had spoken to them "to confirm that we had no social concerns about the baby", and in that letter she referred to the report on the skeletal survey, writing that she had discussed it with Dr Vive. Although there was no evidence before me about precisely what Dr Hussain said in her conversations with the Social Services and the police, it was accepted for the purposes of the trial by Mr Giles Powell, who represented her, that it was not significantly different from what she wrote in her letter.
  9. On 21 August 2010, while Dr Hussain was on holiday, Baby S was re-admitted to the hospital, and at about this time she was removed from her parents' care and put into foster care. (It would appear that the baby was re-admitted on 21 August 2010 from the documents and in particular a letter of a consultant paediatrician, Dr Catherine Greenaway, dated 25 August 2010, although the parties' agreed chronology states that she was readmitted on 23 August 2010. The precise date is not relevant for present purposes.) As a result, on 2 September 2010, the Trust declared that the case was to be treated as a "SUI", or Serious Untoward Incident. At about the end of October 2010, the Trust arranged for it to be investigated by a team under Mr Raj Sivakumaran, the Director of Dentistry at the Trust. I shall refer to this investigation as the "SUI investigation". It was not a disciplinary investigation: as Mr Sivakumaran put it in his (unchallenged) witness statement and I accept, "SUI investigations do not concern individuals, but examine the chronology of incidents, identify root causes and factors involved and attempt to redress any issues that arise with recommendations".
  10. On 5 November 2010, Mr Sivakumaran told Dr Hussain of his investigation and asked to meet her. According to Dr Hussain, that was the first that she had heard of the case of Baby S since early July. She and Mr Sivakumaran met on 8 November 2010. There is no evidence that at the start of the SUI investigation or at the meeting on 5 November 2010 Dr Hussain was told of specific allegations or charges against her: that, as I have explained, is not the nature a Serious Untoward Incident investigation. Nor is there evidence that she was told who was to be interviewed in the investigation. I infer that she was not given information of this kind.
  11. At a meeting with Dr Hussain on 18 November 2010, Dr Rob Haigh, the Interim Medical Director of the Trust, informed her of her immediate exclusion from her work and Trust premises. This was confirmed in a letter from Dr Haigh to Dr Hussain dated 24 November 2010. On 13 December 2010 Dr Haigh advised Dr Hussain of her formal exclusion, and this was confirmed in a letter dated 29 December 2010. She remains excluded. I shall deal with Dr Hussain's exclusion in more detail later in my judgment (and I shall explain the distinction between "immediate exclusion" and "formal exclusion") .
  12. In his letter of 24 November 2010 Dr Haigh recorded that at the meeting he had "advised [Dr Hussain] that during Mr Raj Siva's investigation into the SUI concerning Baby S, a number of issues had come to light which had given [him] serious cause for concern. These related to [her] clinical decisions during the infant's first admission to East Surrey Hospital on 25th June 2010, and also to [her] written entries in the patient's notes which raise the possibility that these may not have been made contemporaneously." Dr Haigh continued: "The clinical SUI investigation [will] continue and there will be a parallel investigation into the possibility that your clinical notes were not made contemporaneously".
  13. At a meeting on 6 December 2010, as was recorded in a letter from Dr Haigh to Dr Hussain of 9 December 2010, Dr Hussain was told that the report on the findings of the SUI investigation was "nearing completion", and that there was a further investigation, described as the "conduct investigation" (a term that I shall adopt) into the Trust's concerns about the clinical notes that she had made. This conduct investigation was conducted by Dr Philip Williams, the Clinical Lead for Anaesthetics and Critical Care, and the clinical notes that were the subject of it included the 29 June 2010 note and the 5 July 2010 entry. Dr Haigh told her that it was expected that the conduct investigation would be completed by the end of the week, that is to say by 10 December 2010.
  14. On 6 December 2010 Dr Hussain also met Dr Williams. Dr Williams had written to her about the investigation on 30 November 2010, but she did not receive the letter before 6 December 2010, apparently because the bad weather at the time caused postal delays. She learned that Dr Williams had requested a meeting with her on 6 December 2010 only when she met Dr Haigh, but she declined an offer of a postponement. There is no evidence that Dr Hussain was told before her meeting with Dr Williams or at any time during the conduct investigation what allegations were made against her more specifically than had been indicated to her in the letter of 24 November 2010, and I infer that she was not given further information about this.
  15. On 13 December 2010 Dr Haigh had a further meeting with Dr Hussain. As he confirmed in a letter of 29 December 2010, he told Dr Hussain that more time was needed to complete the Trust's investigations, and (as I have mentioned) that she would be "formally excluded from [13 December 2010] for an initial period of 4 weeks".
  16. On 30 December 2010 Dr Haigh wrote to advise Dr Hussain that it had "come to his attention" that she had failed to advise the Trust of correspondence that she had received from the Council asking about her availability to give evidence at a hearing concerning Baby S. He wrote that he had asked Ms Caroline White, an Interim Associate Director of Clinical Services, to investigate the matter "as part of the ongoing process": I refer to this matter as the "notification matter" and Ms White's investigation as the "notification investigation". Thus, the Trust came to conduct three separate investigations into matters arsing from the case of Baby S, one being a SUI investigation and the other two were conducted under the Trust's disciplinary procedures, to which I shall refer later.
  17. On 6 January 2011, as part of the notification investigation, Dr Hussain was provided with copies of letters dated 27 September 2010 and 29 October 2010 that the Council had sent to her, and on 7 January 2011 she had a meeting with Ms White. According to the Trust, at that meeting Dr Hussain told Ms White that she had not been aware of the letters.
  18. By this time, Mr R Chaudhary of Medic Law Limited was advising and acting for Dr Hussain, and he participated in the meeting through a telephone conference call. In the course of the discussions, Mr Chaudhary distinguished between the matters of capability, including Dr Hussain's management of Baby S, and matters of conduct, including questions about altering clinical notes and the notification matter. Mr Chaudhary said (according to Trust's record of the meeting, with which Dr Hussain said in evidence she "broadly agreed") that "The conduct should be managed quickly and resolved quickly" and that it is "normal to deal with conduct allegations quickly", and asked Dr White to convey that view to others in the Trust. In her evidence, Dr Hussain said that she agreed with the concerns that Mr Chaudhary expressed.
  19. On 31 December 2010 Mr Chaudhary had sent an e-mail to Dr Haigh in which he referred to Dr Haigh indicating that he or the Trust intended to report Dr Hussain to the General Medical Council ("GMC") because of the notification matter. This e-mail was followed by a letter from Mr Chaudhary to Dr Haigh on 6 January 2011. On 10 January 2011 Dr Haigh replied that the Trust had decided to refer Dr Hussain to the GMC and that this decision was not based solely on the notification matter. He said that the Trust had not yet acted on the decision, but expressed the belief that "GMC referral should take place as soon as appropriate". He referred to the three investigations and an intention to complete an "overall report" when they were completed. Of the SUI investigation, he wrote that it "reveal[ed] a number of concerns regarding Dr Hussain's capability and these findings will also be put forward to a hearing". He continued, "Each investigation will be presented to a single panel, in accordance with section 4, paragraph 4.5 of the Trust Medical and Dental Disciplinary procedure". The reference to this paragraph shows, as I shall explain, that Dr Haigh recognised that the case raised questions both about Dr Hussain's conduct and about her capability.
  20. On 13 January 2011 Mr Sivakumaran spoke to Dr Hussain in a conference call on which Mr Chaudhary also participated. Among other things, she said that she had spoken to Dr Vive on 29 June 2010 and Mr Chaudhary is recorded as having "elaborated" about what was said. According to his record of the conversation, Mr Sivakumaran "informed them that Dr Vive was not available [to have spoken to Dr Hussain] on 29th June".
  21. On 25 January 2011 Mr Chaudhary wrote that Dr Hussain had not had been given any documents in relation to the SUI investigation or the conduct investigation and asked for "comprehensive disclosure" of relevant documents, including the case records of Baby S. On 8 February 2011 Dr Haigh wrote that, when a management report was completed, Dr Hussain would be sent documents that would "provide complete information and explain why a disciplinary process is the most appropriate in this case", and that he believed that the management report would be completed by 14 February 2011.
  22. In the letter of 25 January 2011 Mr Chaudhary also wrote of the conduct investigation that, "it would appear that there were several breaches of procedure" and pointed out that, having not received the letter of 30 November 2010, "Consequently, Dr Hussain went into the meeting [with Dr Williams on 6 December 2010] … without having received a list of people the investigator was going to interview …". In reply to this Dr Haigh wrote on 8 February 2011 that he understood that "during the meeting Dr Hussain was informed of the names of witnesses who would be approached as part of the investigation. She was also informed that a statement, provided by Dr Vive as part of the SUI investigation, would be considered as "part of" the conduct investigation.
  23. In February 2011 (if not before) Dr Haigh went about preparing a "Management Report" that was said to bring together the findings of the three investigations. A version of the report dated February 2011 (and to which I shall refer as the "February report") has been disclosed by the Trust in the course of the proceedings but it was not sent to Dr Hussain at the time: Dr Haigh described it in his evidence as a draft, and I accept that description.
  24. The February report is entitled "Investigation into the Capability and Conduct of Dr Mahein Hussain", and stated that the investigators had found that "Dr Hussain demonstrated a gross lack of capability …", that she "demonstrated gross misconduct" and that she "failed to act with probity". The report made various allegations about her capability arising from the management of Baby S, including one that she had not reconsidered her initial diagnosis "despite being proactively notified by a Consultant Radiologist of the possibility of non-accidental injury". Three concerns about Dr Hussain's conduct were also identified: (i) "Failing to act on concerns raised by Social Services and the police, as well as a consultant colleague [apparently Dr Vive] and a junior doctor [apparently Dr Swati]…"; (ii) Making "retrospective entries in the notes and record[ing] them as contemporaneous records", apparently a reference to the 29 June 2010 note, and "Retrospectively [entering] comments correctly dated [against Dr Swati's notes]"; and (iii) "[Failing] to advise the Trust of the correspondence that she received from West Sussex County Council, requesting that she give evidence at a hearing relating to the case, despite her [exclusion]…". The February Report referred under the heading "Probity" to the 29 June 2010 note and the 5 July 2010 entry and observed, in relation to the notification matter, that Dr Hussain had "been unable to explain how a copy of a letter dictated to her secretary, confirming her availability to attend the hearing with [sic] West Sussex County Council, is present in the clinical record of Baby S, claiming instead that she had no knowledge of the court hearing and did not dictate the letter".
  25. On 2 March 2011 Mr Chaudhary wrote to Dr Haigh pointing out that the Trust had still sent him no documents and had not explained the delay in doing so. He observed that Dr Hussain was still excluded by the Trust, and requested a comprehensive review of the position. He wrote:
  26. "We would like it to be considered why, pending the conclusion of the disciplinary process, the existing concerns against Dr Hussain could not be managed through supervision and/or specific restriction on some professional activities. While we know that you do not consider Exclusion as punitive, Dr Hussain finds the resulting professional isolation very demoralising. We would like to request you to consider lifting her present isolation."
  27. On 14 March 2011 Dr Haigh replied that "due to the complexity of the case, there has been a delay in finalising the management report", and assuring Mr Chaudhary that it would be sent "within the next few days". He wrote that he had considered the request for Dr Hussain to return to work, but was "not in a position" to agree to it before the conduct hearing had taken place. In a letter dated 21 March 2011, Mr Chaudhary pointed out that Dr Haigh had not referred to the request for documents and that they were needed for Dr Hussain to prepare her response to the allegations. He identified specific documents that were required. Dr Haigh responded to this request on 30 March 2011.
  28. On 1 April 2011 Dr Desmond Holden, the Medical Director of the Brighton and Sussex University Hospitals Trust, was seconded to the Trust to act as Medical Director for the year from 1 April 2011 to 31 March 2012. He replaced Dr Haigh. Before 1 April 2011 Dr Holden "spent a few days with Surrey and Sussex towards the end of March helping to get things in order", as he put it in his witness statement. During this period before his formal secondment, Dr Holden, by a letter dated 24 March 2011, advised Dr Hussain that a conduct hearing was to be held on 11 April 2011 to consider "allegations relating to your conduct emanating from" the three investigations. He signed the letter in the capacity of "Medical Director" although he had not formally assumed that position. He said that he was to chair the panel that would conduct the hearing "advised by Janet Miller, the Deputy Director of HR and by a consultant Paediatrician, Tim Taylor, external to the Trust". However, it appears to have been the Trust's intention that Ms Miller and Dr Taylor should be members of the Panel, rather than advisers to it, and certainly the Trust later proceeded on this basis.
  29. Dr Holden enclosed with the letter a Management Report of Dr Haigh, which was dated March 2011 and to which I shall refer as the "March Report". Dr Holden described it as "The Management Statement of Case", and said that it would be "presented" at the hearing. It was entitled "Investigation into the conduct of Dr Mahein Hussain", and recommended that the Trust should "proceed with allegations of conduct and probity, under the Trust's disciplinary policy".
  30. The March Report was based on the February Report. It omitted the criticisms of Dr Hussain's capabilities, but the discussion of Dr Hussain's conduct and probity remained, as far as is relevant for present purposes, the same. It also included this paragraph (which also derived from the February Report):
  31. "The management has assessed the reliability of all the other witnesses who gave evidence during these investigations. It has borne in mind that the alleged incidents occurred several months ago and that recollection of the events may have been affected by the passage of time. Nevertheless, the Management considers that all the witnesses gave honest, reliable and accurate accounts. The Management understands that it is entitled to draw reasonable inferences from the evidence presented and to reach common-sense conclusions based on the evidence."

  32. The conclusions and recommendation of the March Report were introduced by this paragraph:
  33. "In the case of Baby S, Dr Hussain's conduct was not in the best interests of her patient. She ignored information given to her by her colleagues, and this compromised safe patient care. Her unprofessional behaviour is not compatible with the standard expected of a reasonable and experienced doctor."
  34. The March Report then recommended that the charges of "gross misconduct" for consideration by a disciplinary panel should be these:
  35. "- Failing to act on concerns raised by Social Services and the police, as well as by a consultant colleague and a junior doctor;

    I shall refer to these recommended charges as the "March charges".

  36. The March Report went on to state that the "recommended charges surrounding probity" should be (in summary)
  37. i) That Dr Hussain had not been able to explain the 29 June 2010 note.

    ii) That Dr Vive did not recall a conversation with Dr Hussain to which the 29 June 2010 note might refer and denied that he would report radiological findings in the matter suggested by the note.

    iii) That Dr Hussain could not explain how she had come to dictate to her secretary a reply to one of the letters from the Council.

  38. Although the letter of 24 March 2011 did not specifically say so, the implication was that the conduct hearing was to consider the "recommended" charges. Further, it appears from a letter of 6 April 2011 written by Messrs Linder Myers, Dr Hussain's solicitors, that it was understood the focus of the hearing would be the March charges of "gross misconduct".
  39. On 6 April 2011 Messrs Linder Myers wrote to the Trust setting out numerous complaints about the disciplinary procedures against her. They included complaints (i) that the Trust were pursuing allegations about Dr Haigh's capability through the disciplinary procedures designed to deal with complaints of misconduct, and (ii) that the composition of the disciplinary panel was not proper and did not comply with the requirements of article 6 of the Convention.
  40. On 8 April 2011 Dr Hussain brought these proceedings in which she sought an injunction to prevent the Trust from proceeding with the conduct hearing on 11 April 2011, and other relief. The disciplinary hearing was postponed from 11 April 2011 and has not been held pending this trial.
  41. On 16 May 2011, Messrs Capsticks, the Trust's solicitors, wrote to Messrs Linder Myers. They stated that in relation to the first charge of gross misconduct the conduct hearing would consider "only the question whether Dr Hussain was dishonest and/or lacked probity in relation to her failure to act on the concerns raised". The letter continued:
  42. "It is the management case, as set out at paragraph 3.2.3 of the Management Statement of Case [sc the March Report], that Dr Hussain purported to base her decision not to initiate child protection procedures in relation to Baby S on an alleged conversation with Dr Vive which, in fact, never took place and which she fabricated. Therefore, her decision not to act on the concerns raised, and her communication of that decision to others, was dishonest and/or lacked probity.
    Further, it is the management case that her reliance on her false account of a conversation with Dr Vive led to an approach to the treatment and management of Baby S which was grossly inadequate, as set out in paragraphs 4.7 and 4.8 of the Management Statement of Case. Such consequence of Dr Hussain's dishonesty is relevant to the seriousness of the misconduct.
    However, and for the avoidance of doubt, the conduct hearing will not consider whether, if Dr Hussain did not fabricate the conversation with Dr Vive, her assessment and decision were nevertheless negligent. If the disciplinary panel concludes (contrary to the management case) that the basis for Dr Hussain's decision was not dishonest or lacking in probity as set out above, then the question of whether that decision was nevertheless grossly negligent will remain to be considered as part of separate capability proceedings."

    The Practitioners Disciplinary Procedure

  43. Dr Hussain contends that in dealing with her case the Trust has not complied with the provisions of a document entitled "Surrey and Sussex NHS Trust Medical and Dental Staff Disciplinary Procedure" (the "Practitioners Disciplinary Procedure") dated 2 February 2007 and agreed between the Trust and its Local Negotiating Committee (which, I was told, comprises consultants who have been elected to the Committee by the consultants employed by the Trust). She goes on to say that therefore the Trust has acted in breach of its obligations under her contract of employment with regard to (i) her exclusion and (ii) the procedures adopted and the decisions taken to deal with the allegations against her and to convene a conduct hearing; and that, if it pursues its present course with regard to her exclusion and its intended course with regard to a conduct hearing, it will continue to do so.
  44. The introduction to the Practitioners Disciplinary Procedure states:
  45. "This is an agreement between Surry and Sussex NHS Trust and the Trust's Local Negotiating Committee outlining the employer's procedure for handling concerns about doctors' and dentists' 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 agreement supercedes all previous disciplinary and capability procedures.
    This procedure may be amended to reflect any future national advice or guidance but only by agreement with the LNC. Where there is any conflict or lack of clarity the existing national agreed guidance will take precedence. The operation of the procedure will be reviewed after 2 years from [2 January 2009].
    This procedure covers all medical and dental staff employed by the Trust or who are subject to its policies and procedures."

    In fact, the procedure has not been reviewed or amended. The document "Maintaining High Professional Standards in the Modern NHS" (to which I refer as "MHPS") includes an explanatory introduction which is not in the Practitioners Disciplinary Procedure, but otherwise there are no material differences between the two documents.

  46. Something of the background to the MHPS was explained by Swift J in Hameed v Central Manchester Universities Hospitals NHS Foundation Trust, [2010] EWHC 2009 (QB) at paras 60ff. As she explains, it was published by the Department of Health in 2003, and is the result of a collective agreement between the Department, the NHS Federation (representing the employment authorities), and the British Medical Association and the British Dental Association. Procedures described in it were intended to replace the disciplinary procedures for hospital practitioners which had been in a documents known as Circular HC 90(9), the terms of which had applied to practitioners as a result of the National Health Service (Remunerations and Conditions of Service) Regulations 1991 (SI 1991/481). As Lord Steyn observed in Skidmore v Dartmouth and Gravesham NHS Trust [2003] ICR 721 at para 13, the terms on Circular HC90(9) became "part of the employment contract … of almost all NHS hospital doctors". (Mr. Mark Sutton QC, who represented the Trust, submitted that the status of HC(90)9, a statutory instrument, is different from that of MHPS. Lord Steyn, at para 13, referred to the terms of HC(90)9 being "imposed" upon practitioners under regulation 3 of the National Health Service (Remuneration and Conditions of Service) Regulations, 1991, whereas, if, and in so far as the provisions of MHPS came to be included in the contracts of employment of practitioners such as Dr Hussain, they do so because of the terms of an agreement between the employer trust and the practitioner and the terms of the practitioner's contract of employment. Mr. Giles Powell, who represented Dr Hussain, disputed that the position under HC(90)9 is so to be distinguished from the present position under the MHPS regime and suggested that the terms of HC(90)9 too were subject to agreements beyond employers and practitioner' representatives. I was not provided with information that enables me to resolve this question, and I need not do so in order to decide whether the provisions of the Practitioners Disciplinary Procedure on which Dr Hussain relies are contractual.)
  47. As I have indicated, MHPS includes in its introduction an explanatory note about the disciplinary framework. It refers to concerns about the use of suspension (or exclusion) and states that the National Clinical Assessment Authority ("NCAA") – which is now called the National Clinical Assessment Service or "NCAS" – was established to improve arrangements for dealing with the poor clinical performance of doctors and has worked with the National Health Service ("NHS") to avoid suspensions. The introduction to MHPS concludes as follows: "The new approach recognises the importance of seeking to tackle performance issues through training or other remedial action rather than solely through disciplinary 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".
  48. After the introduction, the MHPS is in five parts. The first is headed "Action when a Concern arises". The second deals with "Restriction of Practice & Exclusion from Work". The third is about "Conduct and Disciplinary Matters". The fourth part is about "Procedures for Dealing with Issues of Capacity". The last part is about dealing with concerns about a practitioner's health.
  49. By the Restriction of Practice and Exclusion from Work Directions, 2003, the Secretary of State for Health gave directions that all NHS bodies (including NHS trusts) should comply with the Introduction and the first two parts of MHPS. By the Directions on Disciplinary Procedures 2005, the Secretary of State for Health gave directions that all NHS bodies (again including NHS trusts) should comply with the remaining parts of MHPS, and withdrew HC90(9). By virtue of the National Health Service and Community Care Act 1990, schedule 2 para 16(5), which has been re-enacted in the National Health Service Act, 2006, schedule 4 para 25(3), the Trust was and is obliged to act in accordance with regulations and any directions given by the Secretary of State for Health in connection with the employment of staff. In order to do so, the Trust reached the agreement in the Practitioners Disciplinary Procedure.
  50. The Practitioners Disciplinary Procedure has the same five parts as the MHPS. Dr Hussain relies upon provisions in the first four parts. I must set out many (but not all) of those upon which she relies.
  51. It is observed in the first part of the Practitioners Disciplinary Procedure (at para 1.3) that unfounded and malicious allegations can cause lasting damage to a doctor's reputation and career prospects, and therefore must be properly investigated so that they can be shown to be true or false.
  52. Para 1.5 provides:
  53. i) That all serious concerns must be registered with the Trust's Chief Executive.

    ii) That the Chairman of the Board is to designate a non-executive member to be "the designated member" who is "to oversee the case and ensure that momentum is maintained": it is recorded in the letter from Dr Haigh of 29 December 2010 that Yvette Robbins has been appointed the designated member in Dr Hussain's case.

    iii) That all concerns are to be investigated quickly and appropriately.

    iv) That the Chief Executive is to appoint a "case manager", and in a case involving a consultant the Medical Director is to be so appointed. The case manager is responsible for appointing a case investigator. It is recognised that the Medical Director will "need to work with the Director of Human Resources to decide the appropriate course of action in each case".

    Dr Haigh, as the Trust's Interim Medical Director, was therefore appointed to be the case manager to deal with the concerns raised about Dr Hussain. He has continued so to act although he has ceased to be the Interim Medical Director and Dr Holden has succeeded him. Dr Hussain has not complained about that.

  54. Paragraph 1.7 states that, where the case manager "has reached the clear judgment that the practitioner is considered to be a serious potential danger to patients or staff", he or she must be referred to the General Medical Council (or the General Dental Council).
  55. The case manager is to decide whether the concerns can be resolved without formal disciplinary procedures, and this decision "should not be taken alone but in consultation with the Director/Head of Human Resources and … the National Clinical Assessment Service" (para 1.8). He or she should "explore the potential problem with the NCAS to consider different ways of tackling it themselves…" (para 1.9). If it is decided that "a more formal route needs to be followed", a case investigator should be appointed. The provisions about the conduct of the investigation include these:
  56. i) That the investigator should approach the practitioner concerned to seek views on how the information should be collected (para 1.13).

    ii) That the practitioner concerned must be informed in writing by the case manager, as soon as it is decided that an investigation is to be undertaken, of the name of the investigator and the specific allegations and concerns that have been raised; that the practitioner must be given the opportunity to see any correspondence relating to the case together with a list of the people that the investigator will interview; and that the practitioner must be given the opportunity to put his or her view of events to the case investigator and to be accompanied when doing so (para 1.15).

    iii) That the case investigator has discretion on how the investigation is carried out but the purpose was 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" (para 1.17).

  57. It is also stated (at para 1.19) that the "report of the investigation should give the case manager sufficient information to make a decision" whether (among other things) there is a case of misconduct that should be put to a conduct panel and whether there are concerns about the practitioner's performance that should be explored further by the NCAS. It is observed (at para 1.20) that "The NCAS's methods of working … assume commitment by all parties to take part constructively in a referral to the NCAS".
  58. Part 2 of the Practitioners Disciplinary Procedure recognises two categories of exclusion: "immediate exclusion", that might be ordered in "exceptional circumstances" for a maximum period of two weeks before the practitioner should "return to the workplace for another meeting" (see para 2.14), and "formal exclusion" might be ordered after the case manager had considered whether there is a case to answer and "there is reasonable and proper cause to exclude" (see para 2.15).
  59. The provisions in part 2 emphasise the Trust should not readily exclude a practitioner and should do so only for as long as and to the extent strictly justified. Thus, it is stated at paragraph 2.4 that "Exclusion should be considered as a last resort if alternative courses of action are not feasible", and paragraph 2.5 reads as follows:
  60. "Exclusion of clinical staff from the workplace is a temporary expedient. Exclusion is a precautionary measure and not a disciplinary sanction. Exclusion from work … should be reserved for only the most serious circumstances".

    It is recognised that it might be possible to avoid exclusion by other ways of managing risks, and paragraph 2.7 refers specifically to the possibility of "Restricting activities to administrative, research/audit, teaching and other educational duties".

  61. Paragraph 2.6, which concerns both immediate and formal exclusion, states this:
  62. "Exclusion will only be used:

    Similarly paragraph 2.17 states this about formal exclusion:

    "Formal exclusion of one or more clinicians must only be used where:
    (a) There is a need to protect the interests of patients or other staff pending the outcome of a full investigation of:
    (b) The presence of the practitioner in the workplace is likely to hinder the investigation."
  63. Paragraph 2.9 provides that the Trust should not exclude a practitioner for more than four weeks at a time, and that the justification for continued exclusion must be reviewed on a regular basis and before an exclusion is extended for a further four weeks. It states that "key officers" and the Trust Board have responsibilities for ensuring that the total period of exclusion is not prolonged. This limit of four weeks applies whether or not disciplinary procedures are being followed (para 2.21). Paragraph 2.18 requires that:
  64. "Full consideration should be given to whether the practitioner could continue in or (in cases of an immediate exclusion) return to work in a limited capacity or in an alternative, possibly non-clinical role, pending the resolution of the case."
  65. There are specific provisions that the restrictions imposed when a practitioner is excluded are not excessive. They include these:
  66. i) At para 2.24:

    "Practitioners should not be automatically barred from the premises upon exclusion from work. The case manager must always consider whether a bar from the premises is absolutely necessary. There are certain circumstances, however, where the practitioner should be excluded from the premises. This could be, for example, where there may be a danger of tampering with evidence, or where the practitioner may be a serious potential danger to patients or other staff. In other circumstances, however, there may be no reason to exclude the practitioner from the premises."

    ii) At para 2.25:

    "The practitioner should be allowed to retain contact with colleagues, take part in clinical audit and to remain up to date with developments in their field of practice or to undertake research or training."

    iii) At para 2.27:

    "The case manager should make arrangements to ensure that the practitioner can keep in contact with colleagues on professional developments, and take part in Continuing Professions development (CPD) and clinical audit activities with the same level of support as other doctors or dentists in their employment. A mentor could be appointed for this purpose if a colleague is willing to undertake this role."
  67. I add that paragraph 2.8 provides as follows:
  68. "In cases relating to the capability of a practitioner, consideration should be given to whether an action plan to resolve the problem can be agreed with the practitioner. Advice on the practicality of this approach should be sought from the NCAS. If the nature of the problem and a workable remedy cannot be determined in this way, the case manager should seek to agree with the practitioner to refer the case to the NCAS, which can assess the problem in more depth and give advice on any action necessary. The case manager should seek immediate telephone advice from the NCAS when considering restriction of practice or exclusion."
  69. Paragraph 3.1 in part 3 of the Practitioners Disciplinary Procedure refers to a separate document entitled "Disciplinary Policy and Procedure" (the "Staff Disciplinary Procedure"). It reads as follows:
  70. "Misconduct matters for doctors and dentists, as for all other staff groups, are dealt with under the Trust's Disciplinary procedure. However, where any concerns about the performance or conduct of a medical practitioner are raised, the Trust should contact the National Clinical Assessment Service for advice before proceeding."
  71. I do not need to describe in detail how matters are dealt with under the Staff Disciplinary Procedure. That procedure states that the purpose is ensure that all disciplinary matters are dealt with in a fair and consistent manner. It refers to the "preliminary investigation stage" and states (at paragraph 8) that, "If, on completion of the preliminary investigation, the investigating officer holds a reasonable belief that there is substance in the allegations, a conduct hearing should be held as soon as is reasonably practicable and normally within fourteen days of completion of the preliminary hearing". It provides a right of appeal following disciplinary action.
  72. I also set out paragraph 3.2:
  73. "Where the alleged misconduct being investigated under the Trust's Disciplinary Procedure relates to matters of a professional nature, or where an investigation identifies issues of professional conduct, the case investigator must obtain appropriate independent professional advice. Similarly where a case involving issues of professional conduct proceeds to a hearing under the employer's conduct procedures the panel must include a member who is medically qualified (in the case of doctors) or dentally qualified (in the case of dentists) and who is not currently employed by the organisation. The Trust should discuss the selection of the medical or dental panel member with the Chair of the … LNC [sc the Local Negotiating Committee, to which I refer below]."
  74. Part 4 of the Practitioners Disciplinary Procedure requires that NCAS be involved from an early stage in cases which raise what are called "capability issues". Thus:
  75. i) Paragraph 4.2 provides that:

    "Concerns about the capability of a doctor or dentist may arise from a single incident or a series of events, reports or poor clinical outcomes. Advice from the NCAS will help the Trust to come to a decision on whether the matter raises questions about the practitioner's capability as an individual (health problems, behavioural difficulties or lack of clinical competence) or whether there are other matters that need to be addressed. If the concerns about capability cannot be resolved routinely by management, the matter must be referred to the NCAS before the matter can be considered by a capability panel (unless the practitioner refuses to have his or her case referred). The Trust should also involve the NCAS in all other potential disciplinary cases."

    ii) Paragraph 4.4 provides that:

    "Wherever possible, the Trust should aim to resolve issues of capability (including clinical competence and health) through ongoing assessment and support. Early identification of problems is essential to reduce the risk of serious harm to patients. The NCAS should be consulted for advice to support the remediation of a doctor or dentist…"

    iii) Paragraph 4.11 provides that:

    "The case manager should decide what further action is necessary, taking into account the findings of the report, any comments that the practitioner has made and the advice of the NCAS. The case manager will need to consider urgently:
    The case manager will also need to consider with the Medical Director and Human Resources Director whether the issues of capability can be resolved through local action (such as retraining, counselling, performance review). If this action is not practicable for any reason the matter must be referred to the NCAS for it to consider whether an assessment should be carried out and to provide assistance in drawing up an action plan. The case manager will inform the practitioner concerned of the decision immediately and normally within 10 working days of receiving the practitioner's comments."

    iv) Paragraph 4.12 provides that:

    "The NCAS will assist the Trust in drawing up an action plan designed to enable the practitioner to remedy any lack of capability that has been identified during the assessment. The Trust must facilitate the agreed action plan (which has to be agreed by the Trust and the practitioner before it can be actioned.) There may be occasions when a case has been considered by the NCAS, but the advice of its assessment panel is that the practitioner's performance is so fundamentally flawed that no educational and/or organisational action plan has a realistic chance of success. In these circumstances, the case manager must make a decision, based upon the completed investigation report and informed by the NCAS advice, whether the case should be determined under the capability procedure. If so, a panel hearing will be necessary."
  76. The stipulated procedures for a so-called "capability hearing" are different from those for a conduct hearing.
  77. Thus, it can be important for a practitioner whether a matter is treated by the Trust as one concerning conduct, that might proceed to a conduct hearing, or as one concerning capability. The terms "conduct" and "capability" are not defined in the Practitioners Disciplinary Procedure, but examples are given of what might fall within the two expressions. Paragraph 3.4 provides that:
  78. "Failure to fulfil contractual obligations may also constitute misconduct. For example, regular non attendance at clinics or ward rounds, or not taking part in clinical governance activities may come under this category. Additionally, instances of failing to give proper support to other members of staff including doctors or dentists in training may be considered in this category."
  79. Examples of issues that should be investigated under the capability procedure are given in paragraph 4.3:
  80. "Out of date clinical practice;
    Inappropriate clinical practice arising from a lack of knowledge or skills that puts patients at risk;
    Incompetent clinical practice
    Inability to communicate effectively;
    Inappropriate delegation of clinical responsibility;
    Inadequate supervision of delegated clinical tasks;
    Ineffective clinical team working skills."
  81. As I interpret the Practitioners Disciplinary Procedure, and as I do not understand to be in dispute between Dr Hussain and the Trust, paragraphs 3.6 and 3.7 deal with (among other matters) how it is determined whether a concern is treated as one of conduct or as one about capability. They provide as follows:
  82. "3.6. It is for the Trust to decide upon the most appropriate way forward having consulted the NCAS and their own employment law specialist, the Trust will also consult with a representative of the …LNC to determine which procedure, if any, should be followed in the event of a dispute. The practitioner is also entitled to use the Trust's grievance procedure if they consider that the case has been incorrectly classified. Alternatively or in addition he or she may make representations to the designated board member."
    "3.7. If a practitioner continues to consider that the case has been wrongly classified as misconduct, he or she (or his/her representative) is entitled to use the employer's grievance procedure. Alternatively or in addition he or she may make representations to the designated board member."
  83. The Practitioners Disciplinary Procedure recognises that some cases involve both conduct and capability issues. This is such a case. Paragraph 4.5 contains provisions about "how to proceed where conduct and capability issues involved", and it reads as follows:
  84. "It is inevitable that some cases will cover 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."
  85. I shall refer to the decision about whether a case involving both conduct and capability issues should proceed to a capability hearing or whether a conduct issue (or conduct issues) should be pursued separately as a "paragraph 4.5 decision". The Trust contends that, in the case of Dr Hussain, a correct and valid paragraph 4.5 decision was taken by Dr Haigh in his capacity as case manager. Dr Hussain disputes that.
  86. The evidence

  87. Most of the evidence at trial was documentary, but the parties also adduced evidence by way of witness statements. Dr Hussain relied on her own statement and she was cross-examined on it. The Trust adduced witness statements of Dr Haigh, Dr Holden and Mr Sivakumaran. Only Dr Haigh was cross-examined on behalf of Dr Hussain.
  88. I imposed time-limits of one hour each upon the cross-examinations of Dr Hussain and of Dr Haigh. The cross-examination of Dr Hussain was completed well within the allotted time. Dr Haigh was cross-examined for longer than an hour. I allowed this because in the course of the hearing, and after I had directed the limits on cross-examination, the Trust introduced new material (in particular the "amended charges", to which I refer later) and I considered that this justified extending the time allowed to question Dr Haigh. I do not consider that the time limits unfairly restricted the evidence, and neither party suggested that they did so.
  89. Dr Hussain appeared to me to be honest in her evidence, and I generally accept it.
  90. I do not doubt that Dr Haigh was also honest in his evidence and was seeking to assist the court. I also regard his evidence generally as reliable, but I have some reservations. First, understandably his recollection of events was sometimes uncertain. Secondly, I considered that in some of his answers he was concerned to defend what he and the Trust had done, and he seemed to find it difficult to distinguish between his thinking at the time when decisions about Dr Hussain's case had been taken, particularly with regard to her exclusion, and arguments that he now thought might be advanced to justify them.
  91. The issues

  92. When these proceedings were brought, the Trust's position, as it appeared in its exchanges with Dr HHHussain, was that:
  93. i) It proposed to hold a conduct hearing to adjudicate upon the matters identified in the March Report as "gross misconduct" on the part of Dr Hussain.

    ii) It considered those matters to be concerned with the Dr Hussain's conduct rather than her capability (within the meaning of and for the purposes of the Practitioners Disciplinary Procedure).

    iii) Accordingly, the conduct hearing was to be conducted in accordance with the Trust's Staff Disciplinary Procedure.

    iv) The hearing was to be before Dr Holden, and (as Dr Hussain had been informed) he was to be advised by Ms Miller and Dr Taylor.

    v) Until the conduct hearing had taken place, the Trust intended to take no action about any concerns about Dr Hussain's capability.

    vi) Until the conduct hearing had taken place, the exclusion of Dr Hussain was to remain in place, and there was no intention to review or to modify it.

  94. The Trust's position had not changed before the start of the trial before me, except to the extent that the letter of 16 May 2011 from Messrs Capsticks clarified or adjusted it with regard to the matters to be considered at the conduct hearing.
  95. Dr Hussain took issue with the Trust's position on a number of grounds, including these:
  96. i) That the matters characterised as "gross misconduct" in the March Report were, or included, matters that related to capability, and were not complaints about conduct and could not properly be so regarded.

    ii) That this is a case involving both conduct and capability, and no proper paragraph 4.5 decision had been taken for the Trust to proceed to a hearing upon issues about conduct.

    iii) That in any event the panel before whom the conduct hearing was to be held was not an "independent and impartial tribunal", and so the composition of the panel contravened Dr Hussain's rights under article 6 of the Convention.

    iv) That the decision to exclude her was not proper and had not properly been taken, and her continuing exclusion is unlawful.

    She also had a number of other complaints about the investigatory and other steps taken by the Trust.

  97. There were these developments during the hearing before me:
  98. i) First, the Trust provided a document that revised the allegations of misconduct that it proposed that the panel should hear (and in the course of the hearing three further minor amendments were made to them). I shall call these allegations (as so amended) the "amended charges". There is a dispute about how far the amended charges differ in substance from the March charges. There is no dispute that the amended charges allege only misconduct and do not include allegations about Dr Hussain's capability.

    ii) Secondly, after I had made some provisional observations about the membership of the panel, the parties reached an agreement that resolved this issue. As a result, Dr Hussain no longer pursues a complaint that her rights under the Convention have been breached or that the Trust threatens to contravene them.

    iii) Thirdly, when I asked Dr Haigh after his cross-examination whether he saw scope for reviewing and modifying the extent and nature of the Trust's exclusion of Dr Hussain, he responded that he did. I understand from Mr Sutton that it will have considered this further by the time that I deliver this judgment, although (subject to any order of the court) it is unlikely to decide that Dr Hussain should be allowed to do clinical work pending a conduct hearing.

    iv) Fourthly, in light of the amended charges, Dr Hussain applied for permission to amend her particulars of claim and I granted that application. She introduced allegations that the Trust could not properly pursue the amended charges, and also new arguments in relation to her contention that the paragraph 4.5 decision relied upon by the Trust was not in accordance with the Practitioners Disciplinary Procedure and was invalid.

  99. The amended charges are as follow:
  100. "1. In conversations with social services and police teams on 5 July 2010, and in a letter to social services on that date, you dishonestly represented that, during a telephone conversation, Dr Vive (Consultant Radiologist) had agreed with your view that the radiological evidence could be consistent with the injuries to Baby S all having occurred at the same time during birth. It is the Management case that you did not have any conversation with Dr Vive, or in any event that at no stage did he express any such view or concur with your view in that regard.
    2. On a date on or after 1 July 2010, you made a handwritten entry on a printed skeletal survey report relating to Baby S and, dishonestly and/or with the deliberate intention to mislead, dated the entry 29 June 2010.
    3. On 5 July 2010, you retrospectively made an entry within the contemporaneous patient notes for Baby S made by another doctor (Dr Swati) which was intended to provide justification for your own actions. When you did so, you knew (having regard to established standards of proper medical practice):-
    (a) that any entries in patient records must be made at the time to which they relate;
    (b) that entries must be made sequentially; and
    (c) that such an entry was capable of misleading someone subsequently reading the notes by implying that the words inserted formed part of the contemporaneous record.
    4. After you were excluded from work on 18 November 2010 in connection with conduct and capability concerns regarding your treatment of Baby S, you failed to inform the Trust about correspondence which you had received from West Sussex County Council requesting that you make arrangements for giving evidence in care proceedings relating to Baby S. At that time:-
    (a) You knew that the fact that you may be called to give evidence in care proceedings relating to Baby S and the fact that in the course of such proceedings you were likely to be asked to provide an account of your involvement in the treatment and management of that patient, were matters which were potentially relevant to the ongoing investigation into your own conduct and capability in relation to Baby S, and
    (b) Accordingly you knew that you should disclose such information immediately to the Trust. Your failure to make such disclosure was dishonest and/or deliberately misleading.
    5. On 7 January 2011, you dishonestly denied knowledge of the correspondence from West Sussex County Council when in fact you were aware (at least) of a letter from the Council dated 27 September 2010."
  101. After these developments, the issues that I have to resolve can be summarised as follows:
  102. i) Whether the Trust has contravened, and still proposes to act in contravention of, the Practitioners Disciplinary Procedures.

    ii) If so, whether the Trust was and is obliged under the contract of employment that it entered into with Dr Hussain to observe the Practitioners Disciplinary Procedures or the relevant provisions thereof.

    iii) If so, what (if any) remedy should the court order.

    In view of the conclusions that I have reached and what was said about the Trust reviewing its position about Dr Hussain's exclusion, I do not decide the third issue in this judgment but shall invite submissions about the order that I should make in view of the conclusions that I have reached.

    Has the Trust contravened, and does it threaten to contravene, the Practitioners Disciplinary Procedure?

  103. Dr Hussain complains that the Trust has not observed the Practitioners Disciplinary Procedure in numerous ways, but I think that the allegations fall into three categories:
  104. i) Allegations concerning her exclusion.

    ii) Allegations that the Trust decided to hold a conduct hearing when the complaints that it makes against her involve issues concerning both conduct and capability, and when there had been no lawful and valid paragraph 4.5 decision.

    iii) Complaints about the investigations undertaken and other procedures followed that led to the decision to hold a conduct hearing.


  105. As I have said, on 18 November 2010 Dr Haigh told Dr Hussain that she was excluded from work. This was by way of an immediate exclusion under paragraph 2.14 of the Practitioners Disciplinary Procedure.
  106. In his letter of 24 November 2010 Dr Haigh referred to the meeting on 18 November 2010 and said that the decision to exclude Dr Hussain was taken "In order to ensure patients safety and to protect [her] at this time". He also said that he had taken advice from the NCAS, and a letter from NCAS dated 23 November 2010 confirms that the Trust discussed the case with them on 16 November 2010. The exclusion was limited to a maximum of two weeks. Dr Hussain was told that, while she was excluded, she might not return to the Trust's hospitals at Redhill or Crawley without first advising Dr Haigh or, in his absence, Ms White, except that she might return to participate in the SUI investigation or if she or an immediate relative needed treatment at one of the hospitals.
  107. On 6 December 2010 a further meeting was held between Dr Haigh and Dr Hussain. One of its purposes was to review the immediate exclusion, and Dr Haigh stated that it was to be extended. Dr Hussain asked on what basis she was being excluded. According to a contemporaneous note of the meeting taken by Ms Caroline Haynes of the Trust's Human Resources Department, Dr Haigh replied "competency". However, in a letter recording the meeting dated 9 December 2010, Dr Haigh wrote to Dr Hussain as follows:
  108. "You asked me to clarify, at the meeting, the basis of your exclusion and I confirmed that you had been excluded on the basis of both your competence and your conduct but explained that the issue of competence was significant in the decision to exclude you while the two investigations were carried out".

    The two investigations were the SUI investigation and the conduct investigation.

  109. At a meeting on 13 December 2010 Dr Haigh told Dr Hussain that he had decided formally to exclude her, that is to say to exclude her under paragraph 2.15 of the Practitioners Disciplinary Procedure. At that meeting Dr Haigh told Dr Hussain (as I infer from Ms Haynes' notes of that meeting and a letter of 29 December 2010) that he believed that she had acted in good faith and to the best of her ability.
  110. In the letter dated 29 December 2010 Dr Haigh wrote that at the meeting on 13 December 2010 he had advised Dr Hussain that:
  111. "… more time was needed to complete the investigations but that on the basis of information presented to me so far you would be formally excluded from [13 December 2010] for an initial period of four weeks and that during that time you must be available for further discussion, in relation to both investigations either by telephone, e-mail or in person. I also asked you not to make contact with any of your colleagues or to present for work anywhere else. I also advised you not to attend East Surrey Hospital, Crawley or any other Trusts sites unless you or a member of your family needed to do so as patients".

    He went on to record that he had agreed that Dr Hussain could fulfil a commitment to lecture at Warwick University, and his letter continued:

    "I explained however that having considered other aspects of the work that you could undertake as an alternative to exclusion, and taking into account the nature of the investigations, the Trust could not provide you with any alternative work at this time. You asked to come to the hospital to access you (sic) computer and some of the guidelines you had previously written so you could review those from home, however Caroline Haynes advised you that the Trust could not allow you to do this as it would be a contradiction to the decision to exclude you formally…
    I confirmed that I appreciated that it was a difficult time for you and believed that you had acted in good faith and to the best of your ability but that I had concerns about the level of your ability".
  112. Thus, it would appear from the letter of 29 December 2010 that the decision to order that Dr Hussain should be formally excluded was taken because of concerns about her ability, and it was taken despite the belief of Dr Haigh, her case manager, that she had acted in good faith. This, according to the letter, is what she was told at the meeting on 13 December 2010, and there was no suggestion that the position had changed by 29 December 2010.
  113. However, Dr Hussain's evidence about this is rather different, and it is also, I conclude, rather confused. She said that at a meeting on 6 December 2010 Dr Haigh (i) "converted the immediate exclusion to a formal exclusion" and (ii) explained her formal exclusion on the basis of both her competence and her conduct. Although this evidence was not challenged, I conclude that she is wrong about being formally excluded on 6 December 2010. It is likely, as I infer, that some mention was made on 6 December 2010 about her conduct when the immediate exclusion was extended, but the decision was explained mainly on the basis of concerns about her capability. I also conclude that the decision formally to exclude her was taken and explained to her on the basis of concerns about her capability, and notwithstanding that the Trust believed that she had acted in good faith.
  114. In a letter dated 10 January 2011 to Dr Chaudhary, Dr Haigh wrote that,
  115. "…in view of Dr Hussain's commitments at Warwick University this week and the need for the reports to be completed, I can confirm that Dr Hussain's exclusion will be extended for a further four weeks. I anticipate however that the overall report will be sent to you before the end of the period of suspension and that the hearing will take also take place at the end of the four week period".
  116. As I have explained, the Trust did not produce the report within the period of four weeks or until 24 March 2011. Dr HHhussain remained subject to the exclusion restrictions, and the Trust has not reviewed her exclusion since 10 January 2011. Therefore the Trust did not comply with paragraph 2.9 of the Practitioners Disciplinary Procedure, despite Mr Chaudhary's request in his letter of 2 March 2011 (expressed in polite and moderate language) that the Trust consider whether something might be done to ameliorate her professional isolation. In part 2 of the Practitioners Disciplinary Procedure the Trust agreed to consider just such matters (even without being prompted by a request from the practitioner), but I conclude, despite Dr Haigh's reply on 14 March 2011, that neither he nor anyone else in the Trust gave the matter any serious consideration. No explanation for this has been offered by the Trust.
  117. Dr Hussain has now been excluded from both clinical and other professional activities for more than six months, she has not been allowed to go to the Trust's premises and has been denied contact with her professional colleagues. Apart from allowing her to fulfil her commitment to lecture at Warwick University, the Trust has relaxed the exclusion only to the extent of allowing her to speak to two other paediatric consultants in order to obtain references for the purposes of the hearing that the Trust proposed to hold. I accept her evidence that, while this continues, she finds it very difficult to maintain and keep up-to-date her professional skills and knowledge, and the longer the exclusion continues and the more complete the restrictions are, the more this problem is aggravated.
  118. I revert to the request by Dr Hussain at the meeting on 13 December 2011 for permission to have access to her computer so that she could work from home on draft guidelines, and the Trust's refusal of that request. Dr Hussain explained in her evidence, and I accept, that she wished only to use her work computer for the limited purpose of copying that draft and, if the Trust had so required, would have copied it under supervision. Dr Haigh told me, and I accept, that he had not understood that her request was so limited. I cannot and need not decide precisely how Dr Hussain presented it at the meeting of 13 December 2010. However, I conclude that the Trust dismissed the request without considering whether there was any good reason to do so and simply because it would not contemplate any modification or qualification of the exclusion that would allow Dr Hussain to return to its premises except for the purposes of the investigations. This is reflected in the letter of 13 December 2010, and was confirmed by Dr Haigh's (surprising) evidence in cross-examination that the Trust was following what in his experience is a "standard practice" in the NHS, that, if a practitioner is excluded (or at least if excluded for misconduct), the NHS employer does not relax the ruling so as admit him or her to work premises for any reason of this kind. Whether or not Dr Haigh's experience does in fact reflect a common practice of NHS trusts, it seems to me to disregard not only the letter but the spirit and objective of part 2 of MHPS, which was reproduced in the Practitioners Disciplinary Procedure: that any restrictions on a practitioner should be the minimum justified in order to fulfil the purpose of the decision to exclude him or her.
  119. Dr Hussain has a more fundamental and more general complaint about her exclusion. She says that there was no justification for excluding her at all or for restricting her work. If (which she does not accept) and in so far as her management of Baby S might have given rise to any legitimate concern about her capability, she argues that it could properly have been handled by requiring her to be supervised when carrying out clinical work and pending concerns about her capability being appropriately managed in accordance with part 4 of the Practitioners Disciplinary Procedure.
  120. At the hearing before me, Mr. Sutton emphasised the serious nature of the allegations of dishonesty and misconduct that the Trust makes against Dr Hussain: that she made entries in clinical notes that were dishonestly intended to mislead the reader and that she dishonestly claimed to have discussed the case with a consultant colleague and attributed to him a professional opinion that he did not hold.
  121. This cannot justify the exclusion decisions that were taken by the Trust. Until some time in 2011 or possibly at the end of 2010, the Trust, or at least Dr Haigh was proceeding, as Dr Hussain was told and I accept, on the basis that she had acted in good faith. Both when the Trust decided to require her immediate exclusion and when she was formally excluded, the decisions were justified on the basis of concerns about her capability rather than concerns about dishonesty and misconduct. (I do not understand the statement in the letter of 24 November 2010 that the decision to exclude Dr Hussain was taken for her own protection, but the Trust did not rely upon that to justify its decisions.)
  122. In these circumstances, I can see no justification for the Trust's decision to restrict what Dr Hussain did by way of non-clinical work, and to restrict her activities so as to exclude her from all clinical work. The case of Baby S, on the face of it, would only have given rise to concerns about her capability in diagnosing and dealing with non-accidental injuries to children. I do not overlook that, as I understand it, previous concerns had been raised about Dr Hussain's capabilities which had been dealt with, but the Trust does not suggest that they are relevant for present purposes.
  123. Dr Haigh's evidence that, although the Trust did discuss alternatives to full exclusion, such as working on policies and procedures, it was not considered practical to allow her access to the Trust's computers at all given the allegation that she had tempered with patient records. He also said that he did not consider that audit work would be suitable for her in view of this allegation. I do not accept that there were such discussions, or these alternatives were considered, when the decisions were taken to exclude Dr Hussain first on an immediate basis and then formally: those decisions were taken at a time when, unless he was misleading Dr Hussain, a possibility that I reject, Dr Haigh considered that she had acted in good faith notwithstanding that the conduct investigation was taking place. He told her that the decisions were taken because of concerns about her capability. Again, I reject any suggestion that Dr Hussain was not being told the true reason for her being excluded as she was, and that the real reason for the decisions was because of allegations of misconduct by way of tampering with patient records.
  124. Further, even after these allegations had been made and were causing concern, I am not persuaded that it was necessary or reasonable to prevent Dr Hussain doing any work at all, to exclude her entirely from Trust premises and to prevent her having any access to colleagues so as to enable her to maintain her professional skills.
  125. I conclude that the Trust was therefore in breach of paragraph 2.18 of the Practitioners Disciplinary Procedure both when deciding upon her immediate exclusion and when formally excluding her in that no real consideration was given to what restrictions on Dr Hussain were in fact justified by the circumstances of her case. I am unable to accept that any serious consideration was given to that question. I also consider for similar reasons that the arrangements to exclude Dr Hussain did not comply with paragraph 2.25 of the procedure nor with paragraph 2.27 in that Dr Haigh as a case manager failed to make arrangements for Dr Hussain such as are there contemplated.
  126. As I have indicated, I do accept that, even when it was proceeding on the basis that Dr Hussain had acted in good faith, the Trust was entitled to place some restrictions upon Dr Hussain's activities because of its concerns about her capability. In particular, I accept that it was entitled to restrict her practice in so far as it involved assessing and managing injuries to children which might not have been caused accidentally. I also accept that later, probably by early in 2011, Dr Haigh had concerns, shared by others in the Trust, about Dr Hussain's integrity because of the allegations about the 29 June 2010 note and the 5 July 2010 entry, and he concluded that she had a case of misconduct to answer. This might well have justified further restrictions to protect the integrity of patient records. However, the evidence is not sufficient for me to be able to judge the precise extent of restrictions upon Dr Hussain that could be justified or when they might have been justified, and I do not consider it necessary for me to do so. It suffices to conclude (i) that in taking the decisions to exclude Dr Hussain first immediately and later formally the Trust did not comply with the requirements of the Practitioners Disciplinary Procedure and in particular failed to observe paragraph 2.18; (ii) that there has also been a failure to observe paragraphs 2.25 and 2.27 of the procedure; (iii) in failing to review Dr Hussain's exclusion, the Trust has failed to act in accordance with paragraph 2.9; and (iv) while the Trust is entitled to place some restrictions upon Dr Hussain's activities, the present restrictions are excessive and I shall invite further submissions about the proper limits of such restrictions.
  127. I add that at one point during his oral submissions Mr Powell appeared to submit that the Trust was in breach of paragraph 2.8 of the Practitioners Disciplinary Procedure that because the Trust's concerns related (or relate) to Dr Hussain's capability and the Trust has not approached NCAS for advice about an "action plan to resolve the problem". This specific allegation has not been pleaded on behalf of Dr Hussain, and so it is not, to my mind, open to her to complain that the Trust has been guilty of a breach of contract in not seeking such advice from NCAS. As I understand it, Mr Powell does not contend otherwise: certainly he made no application to amend the pleading when the position was pointed out.
  128. The paragraph 4.5 decision

  129. The decision that the Trust should proceed to a conduct hearing in respect of allegations against Dr Hussain about her conduct was taken by Dr Haigh. Although he could not recall quite when he took the decision, I accept his evidence that he did so at some time between when he prepared the February Report and when he prepared the March report.
  130. Dr Haigh took advice about the decision from the Trust's Human Resources Department and its solicitors, Messrs Capsticks. He also had advice from NCAS, which was confirmed in a letter dated 22 February 2011 from a Dr Umesh Prabhu. The letter included these passages:
  131. "Today, you told me that the Trust has completed its investigation and there are issues of capability and some serious conduct and probity issues. You told me that you have taken legal advice from the Trust solicitors who have suggested that the Trust could either present only the conduct part of the investigation or present both conduct and capability and seek the conduct panel to consider only the conduct part of the case and not to make any decision or not to take capability issues into consideration while making the decision. You also told me that the Trust solicitor have advised the Trust to seek NCAS advice.
    I suggested that the Trust should continue to deal with concerns in accordance with the Trust's internal policy and procedures which comply with the guidance contained in MHPS.
    Paragraph 8 of Part IV of MHPS reads "If a case covers more than one category of problems, they should usually be combined under a capability hearing although there may be occasions where it is necessary to pursue a conduct issue separately. It is for the employer to decide on the most appropriate way forward having consulted with an NCAS adviser and their own law specialists."
    If there is clear evidence already to hand of serious conduct and probity issues such that the Trust considers are such as to require the doctor's employment to be terminated, then if it were felt expeditious the Trust may wish to consider a separate panel to deal with the conduct issues alone, presenting only the allegation and evidence on those issues to the panel. Presenting evidence on any extraneous issue would be likely to be considered prejudicial. However, if the Trust felt it necessary to present concerns relating to conduct and to capability that would have to be to a capability panel."
  132. Dr Haigh decided in light of advice that he received that there should be a separate hearing in relation to the allegations of misconduct against Dr Hussain. No document has been produced in evidence recording his reason for the decision. (In his cross-examination Dr Haigh stated that he believed that he had documented the decision. The Trust has not disclosed any document of this kind. It was suggested by Mr Sutton that Dr Haigh might have had in mind a document is the subject of legal professional privilege. In any case, Dr Haigh's evidence about the decision being recorded was too vague to be reliable.) However, Dr Haigh's purpose in taking the paragraph 4.5 decision is explained in his witness statement as follows:
  133. "In the basis of the advice received, I took the decision to treat the conduct and capability process entirely separately. My decision was based on the fact that the allegations of misconduct are very serious, that they are separate and depend on separate evidence, that they can properly be considered separately from the question of capability, and that they will need to be determined irrespective of the decision on capability. My understanding was that we would proceed to a hearing on the conduct matters and, depending upon the outcome of that process to a hearing on the conduct matters and, depending upon the outcome of that process, the Trust could either then deal with the capability issues under its capability procedures, or if the outcome of the conduct hearing is to dismiss Dr Hussain, then the Trust would need to consider referring the capability issues to the GMC.
    I decided that the conduct issues should be addressed first in the main because they could be concluded much more quickly. Given the effect of a full exclusion on a Consultant, I considered it was key that we got to the bottom of the issue of Dr Hussain's probity swiftly. As stated above, it was because of the allegation that she had tampered with clinical records that she was unable to have access to the Trust's computers and unable, therefore, to undertake even non-clinical duties."
  134. I make three observations about this part of the case. First, the decision that Dr Haigh states that he took was "to treat the conduct and capability issues separately". It was not suggested when he was cross-examined that this does not accurately describe his decision. He does not say that the initial decision was to deal separately March charges, or, more generally, the concerns about Dr Hussain's conduct described in the March Report. Of course, in order to implement that decision of principle to treat conduct and capability issues separately, it was necessary to define what allegations of misconduct were made by the Trust, but that was a separate decision, and, as I would infer if it matter, the exact formulation of the March charges was determined after it had been decided in principle to "pursue … separately a conduct issue" (or issues) against Dr Hussain under paragraph 4.5. Certainly, the questions whether to pursue allegations of misconduct separately and what misconduct was alleged were closely related, and I do not suggest that Dr Haigh rigorously segregated them in his mind: he could not properly have taken a decision under paragraph 4.5 without considering what the allegations of misconduct were likely to involve. But that does not mean that the decision of principle to proceed to a separate hearing about the conduct allegations was itself a decision to proceed to a hearing to determine the specific allegations made in the March charges.
  135. Secondly, the decision to deal with the conduct issues separately from the concerns about Dr Hussain's capability was in line with what Mr Chaudhary had advocated when he participated by telephone in the discussions of 7 January 2011. It would be wrong to interpret this as an endorsement by Mr Chaudhary, or through him by Dr Hussain, of the approach that the Trust later adopted and seeks to pursue. Mr Chaudhary's point was that the conduct issues should be resolved quickly, and the delay of some eleven week before the Trust even told Dr Hussain that it proposed to conduct a separate conduct hearing undermined the purpose behind Mr Chaudhary's suggestion.
  136. Thirdly, it was submitted on behalf of Dr Hussain that Dr Haigh did not make the paragraph 4.5 decision on the basis that it was "necessary" to hold a separate conduct hearing, and so did not apply the criterion stipulated in paragraph 4.5 for departing from the prima facie position that cases that "cover conduct and capacity issues" should proceed to a capacity hearing. In support of this submission, Mr Powell contended that the advice from the Trust's solicitors, recited by Dr Prabhu, was to the effect that the Trust had an unfettered choice between proceeding to a capability hearing to deal with all the allegations, or proceeding to a separate hearing on the conduct issues, and that Dr Haigh was not directed to the wording of paragraph 4.5 that this course should be followed if (and, as it is submitted, only if) it is "necessary". Mr Powell accepted my suggestion that, in the context of paragraph 4.5, "necessary" connotes that a separate hearing is demanded by the circumstances of the case.
  137. I am unable to accept Mr Powell's argument. First, I am not prepared to infer that Dr Prabhu was setting out fully the solicitors' advice: he did not purport to do so. There is no proper reason to think that the advice did not direct Dr Haigh to the wording of paragraph 4.5
  138. Secondly, Dr Prabhu set out the wording of the paragraph in MHPS reproduced in paragraph 4.5 of the Practitioners Disciplinary Procedure. Although Dr Pradhu went on to say that the Trust could consider a separate conduct hearing if it were "felt expeditious", this does not, to my mind, mean that Dr Prabhu was advising that the Trust could do so without regard to whether it was "necessary": in this case a separate hearing to determine the allegations of misconduct was considered to be demanded by the circumstances of the case because it was important to determine them expeditiously.
  139. Thirdly, as I understood Dr Haigh's evidence in cross-examination, he did consider that a separate hearing was demanded by the circumstances of the case. He described his thought process as being that the concerns about Dr Hussain's conduct needed to be dealt with expeditiously and "as speedily as possible" because they were so serious (as he put it at one point, of such "importance and severity") and because, if it is decided that concerns about Dr Hussain's capability called for retraining, that needed to be "proper and robust" and undertaken after concerns about her conduct had been "put on one side".
  140. Dr Haigh's evidence did not include a ritualistic recitation of the wording of paragraph 4.5: it was the more persuasive because it did not do so. But I conclude that he applied to the paragraph 4.5 decision the criterion stated in the paragraph. Indeed, if it matter, the reasons for dealing separately with the allegations about misconduct were and are, to my mind, overwhelming. The alternative would be for them to remain unresolved while the machinery under part 4 of the Practitioners Disciplinary Procedure is implemented: that is to say, while there is an assessment of Dr Hussain's capability and while an action plan is drawn up with NCAS's advice and implemented. It is common ground that this would not take less than six months. Such delay in resolving allegation of misconduct of the kind made against Dr Hussain would, in my judgment, be unthinkable, and in any case, while allegations of misconduct of this kind are unresolved, it cannot be expected that other practitioners and staff would enjoy the professional relationship with Dr Hussain which would be necessary for concerns about her capability to be resolved through the part 4 machinery.
  141. The Trust therefore contends that it acted in accordance with the Practitioners Disciplinary Procedure when it decided in March 2011 to have March charges determined at a conduct hearing because (i) such a procedure is contemplated by paragraph 4.5 of the Practitioners Disciplinary Procedure, (ii) Dr Haigh validly determined that this procedure should be followed in accordance with paragraph 4.5, and (iii) the letter of 24 March 2011 setting out the March charges was sent in accordance with that decision.
  142. I accept the first two stages of this reasoning, but not the third.
  143. Dr Hussain submitted that the March report proposed to present at a conduct hearing charges directed to want of capability, and not only to what paragraph 4.5 refers to as "conduct issue[s]". If it be for me to decide the question, I agree that the March charges were not only about conduct and included issues of capability. Two examples are:
  144. i) The allegation of, "Failing to act on concerns raised by social services and the police, as well as by a consultant colleague and a junior doctor", given that the March Report did not suggest that this failure involved dishonesty or impropriety on Dr Hussain's part.

    ii) The allegation that Dr Hussain failed to advise the Trust of correspondence that she had received from the Council, given that the March Report did not suggest that this failure was because Dr Hussain was dishonest or because she acted without probity.

  145. I must therefore consider:
  146. i) Whether, on the proper interpretation of the Practitioners Disciplinary Procedure, a decision that an allegation is one of conduct rather than capability is valid only if it is correct (so that, if it is incorrect, the decision and proceedings resulting from it are invalid), or whether, because that decision is to be made by the Trust, the Trust's decision is not invalidated simply because, in the opinion of the court, it is not correct; and

    ii) If the validity of the decision does not simply depend upon whether the court considers it correct, in what circumstances, if any, is the decision invalid, and was the decision to present the March charges at a conduct hearing valid.

  147. Mr. Powell submits that if the Trust (or its relevant officer) wrongly categorises an allegation as an issue of conduct, and as a result the inappropriate proceedings are pursued, the decision is invalid and the proceedings are unlawful. In support of that submission he referred to the decision of the House of Lords in Skidmore v Dartmouth and Gravesham NHS Trust (loc cit). The Skidmore case concerned a distinction between "personal" conduct and "professional" conduct under the disciplinary procedure applicable to medical staff that was then contained in the HC(90)9 circular. It was held that, because the employer trust decided to pursue a charge as one of "personal" misconduct was wrong, it had not acted in accordance with the terms of the circular, which had been incorporated into the practitioner's contract of employment, and so had not acted in accordance with the terms of the contract. Lord Steyn said (at para 15):
  148. "Prima face … the position is as follows. The Trust is entitled to decide what disciplinary route should be followed. That decision must, however, comply with the terms of the contract. If a non-conforming decision is taken and acted upon, there is a breach of contract resulting in the usual remedies".
  149. That, however, is only a prima face position. As Lord Steyn made clear, it is displaced if the contract otherwise provides. In my judgment, in this case paragraph 3.6 of the Practitioners Disciplinary Procedure does so: "It is for the Trust to decide upon the most appropriate way forward…". That provision is directed to the classification of complaints as conduct or capability, as is put beyond doubt by paragraph 3.7. To my mind, the proper understanding of the procedure is that the decision to categorise the allegations as matters of capability or matters of conduct is entrusted to the Trust, and it is not in itself enough to vitiate it, or proceedings resulting from it, that the Trust's decision is, in the view of the court, wrong.
  150. Where a contract confers upon one party a power of this kind, the party is a subject to some constraints as to the decision he can properly take. This principle was stated in general terms by Leggatt LJ in Abu Dhabi National Tanker Company v Produce Star Shipping Company Limited, [1993] 1 Lloyd's Reports 397 at p.404:
  151. "Where A and B contract with each other to confer a discretion on A, that does not render B subject to A's uninhibited whim. In my judgment, the authorities show that not only must a discretion be exercised honestly and in good faith but, having regard to the provision of the contract by which it is conferred, it must not be exercised arbitrarily, capriciously or unreasonably."

    In this context "unreasonably" is used in a sense analogous to "Wednesbury'" unreasonableness, that is to say unreasonableness of the kind explained in Associated Provincial Picture Houses v Wednesbury's Corporation, [1948] 1KB 223: see Socimer International Bank Limited v Standard Bank London Limited, [2008] EWCA Civ 116 at para 66 per Rix LJ. In Gan Insurance Co v Tai Ping Insurance Co Ltd (No 2), [2001] 2 All ER (Comm) 299, Mance LJ referred to "unreasonableness in the sense of conduct or a decision to which no reasonable person having the relevant discretion could have subscribed" (at para 64), a test that Dyson LJ described as helpful in Nash v Paragon Finance, [2001] EWCA 1466.

  152. A similar approach is adopted when a power of this kind (or a discretion in a loose sense) is conferred by a contract of employment: see Clark v Nomura International plc, [2000] IRLR 766 at para 40 per Burton J, in a case concerned with an "individual performance" based bonus, and Mallone v BPB Industries, [2002 EWCA Civ 126, a case concerned with a share options scheme. In Horkulak v Cantor Fitzgerald International, [2004] EWCA Civ 1287 Potter LJ (in a judgment of the court to which Carnworth LJ and Bodey J subscribed) appeared to associate the restrictions upon the exercise of such a power with implied term of mutual trust and confidence ("It would fly in the face of the principles of trust and confidence which have been held to underpin the employment relationship" at para 47), but he did not, I think, mean that employers are restricted as to how they exercise such powers only by the implied term. Such a power might be concerned with a matter too unimportant in itself for its arbitrary exercise to undermine the employee's trust and confidence, but it would still have to be exercised within the limits stated by Leggatt LJ and in the other authorities to which I have referred.
  153. Applying this principle, could the Trust properly have regarded the March Charges as going to matters of conduct rather than concerns about capability, as those expressions are used in the Practitioners Disciplinary Procedure? I am unable to accept that it could have done so. The formulation of them fails properly to recognise the distinction in the Practitioners Disciplinary Procedure. Neither the evidence of Dr Haigh nor any other evidence explained why it was thought that the March charges were confined to allegations of misconduct, but, as I understood his evidence, Dr Haigh did not recognise that those charges are different from the amended charges.
  154. Mr Sutton submitted that they were not significantly different. I am unable to accept that submission because:
  155. i) No allegation of dishonesty in conversations with the Social Services and the police was made in the March report, and that is the focus of the first amended charge.

    ii) The allegation that the 5 July 2010 entry was made with improper motives, as alleged in the third amended charge, was not included in the March report.

    iii) The allegation that the failure to disclose correspondence with the Council was dishonest or deliberately misleading (the fourth amended charge) is not in the March Report.

    iv) The allegation that on 7 January 2011 Dr Hussain dishonestly denied knowing of the correspondence (the fifth of the amended charges) is not in the March Report.

    Of the five amended charges, in my judgment only the second, that about the 29 June 2010 note, essentially repeats one of the March charges.

  156. In my judgment, therefore, the March charges, unlike the amended charges included allegations relating to capability that could not properly be regarded as conduct issues within the meaning of paragraph 4.5 of the Practitioners Disciplinary Procedure. Although it was for the Trust to determine which allegations were properly regarded as "conduct issues", it could not properly have so categorised some of the March charges. I am not able to identify from the evidence at trial the precise nature of the error that led it to do so, but it suffices to conclude that no reasonable employer properly understanding the Practitioner Disciplinary Procedure could have done so. The decision that the March charges should go to a conduct hearing was unreasonable in the sense that I have explained. It does not matter whether the Trust's power to decide upon the charges is seen as one exercised under paragraph 3.6 of the procedure about the appropriate way forward or as one exercised under paragraph 4.5 to implement the decision of principle taken by Dr Haigh that "the conduct issues should be addressed first". It was not exercised validly because it was exercised unreasonably.
  157. What is the effect of this? It means that the Trust was not entitled to take the March charges to a conduct hearing. Its proposal to do so was not in accordance with the Practitioners Disciplinary Procedure because under paragraph 4.5 the only proper courses were to proceed to a capacity hearing in respect of all the allegations or to hold a separate hearing in relation to "conduct issues" where that was "necessary". It was not entitled to hold a conduct hearing unless it was to deal with issues (and only to deal with issues) that could properly be regarded as allegations of misconduct.
  158. Mr. Powell argued that it also follows that no valid decision has been taken under paragraph 4.5 to have a conduct hearing upon the amended charges, and that therefore the Trust cannot proceed to a conduct hearing unless and until it does so. He submitted that there is no evidence that Dr Haigh made a paragraph 4.5 decision to have the amended charges heard. They were drafted overnight in the course of the trial. Dr Haigh's evidence was not that he had re-formulated the charges himself, but that he had been party to their revision and that he was "content" with the amended charges as statements of the allegations that should go to a conduct hearing. This, Mr Powell submitted, does not amount to a decision that it is "necessary" to have a separate hearing on the conduct issues in the amended charges.
  159. I reject this argument. First, I am not persuaded that Dr Haigh failed properly to consider whether the amended charges should be the subject of a separate conduct hearing. More fundamentally, as I have explained, in my judgment a proper paragraph 4.5 decision was taken before the March Report to bring to a separate hearing the conduct allegations that Dr Hussain faced. That decision was not properly implemented when the March charges were formulated, but that does not vitiate the decision itself.
  160. I should expand on the first of these two reasons. Mr Powell submitted that no proper and valid paragraph 4.5 decision had been taken about the amended charges for three reasons:
  161. i) Because Dr Haigh and the Trust had not turned their minds to whether it was necessary to hold such a hearing.

    ii) Because Dr Haigh and the Trust failed to take into account that, if a separate hearing is to be held, this will so delay anything being done about Dr Hussain's capability (through an action plan drawn up with the advice of NCAS and otherwise as contemplated in part 4 of the Practitioners Disciplinary Procedure) as to compromise the prospects of successfully tackling those concerns.

    iii) Because Dr Haigh and the Trust did not properly assess what Mr Powell called the "weight" of the allegations of misconduct against Dr Hussain, that is to say they did not properly assess the material available in relation to whether the various allegations are well founded.

  162. I do not accept these criticisms of the decision. I have already said that Dr Haigh considered that this case demands that, in order to resolve the matter with the minimum of delay, the conduct matters must be determined as quickly as possible, and that I consider that he was entitled, indeed right, to do so. Although there has been slow progress (not least because of these proceedings), this does not undermine those reasons: indeed, it strengthens them.
  163. There is no reason to think that, when deciding to have a conduct hearing of the amended charges, Dr Haigh or the Trust left out of account that it might be necessary to tackle concerns about Dr Hussain's capability in accordance with part 4 of the procedure. On the contrary, Dr Haigh said that one of the reasons for the decision was that he considered that a properly robust action plan could only be effectively implemented, or at least that it was best implemented, once questions of misconduct had been resolved and could be "put aside".
  164. I also see no reason to suppose that Dr Haigh did not properly assess the available evidence about the allegations in the amended charges when deciding whether the Trust could properly and should have them determined at a conduct hearing. Mr Powell questioned him about this in cross-examination particularly in relation to evidence about what Dr Vive had said about discussions with Dr Hussain. This issue will probably be explored at a conduct hearing, and I should avoid saying anything that could prejudge it. I shall therefore simply state that in my judgment this provided no support for Mr Powell's submission.
  165. Dr Hussain has a further argument: the amended charges are the product of a procedure that did not comply with the Practitioners Disciplinary Procedure, and therefore the Trust cannot lawfully proceed to a conduct hearing to determine them. Mr Powell submitted that the procedure is designed to provide the practitioner at its different stages with protection against unjustified allegations, including during investigations and when decisions are taken about "the appropriate way forward" after an investigation.
  166. Dr Hussain submitted that there had been no investigation into the allegations in the amended charges, as contemplated in paragraphs 1.15, 1.17 and 1.19 of the Practitioners Disciplinary Procedure, and more specifically that Dr Hussain was not informed of the specific allegations or given an opportunity to comment upon them. (In her pleaded case, Dr Hussain also asserts that the Trust is in breach of section 10 of the Staff Disciplinary Procedure. That contention was not developed by Mr Powell. Section 10 of the Disciplinary Procedure is about information to be provided to a practitioner before a conduct hearing takes place. No conduct hearing has taken place, and I do not understand how the Trust could be in breach of that section.)
  167. Before coming to Dr Hussain's detailed complaints about the investigations, I observe that the Practitioners Disciplinary Procedure states (at para 1.5) that concerns should be investigated "quickly and appropriately". The individual provisions about investigations should be interpreted consistently with this objective.
  168. 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.
  169. More specifically:
  170. i) The important elements of the first amended charge, including the conversations on 5 July 2010, were covered by the SUI investigation, and Mr Sivakumaran interviewed Dr Vive for his account of what had happened. In the course of the conduct investigation, on 6 December 2010, Dr Williams asked Dr Hussain about speaking with Dr Vive.

    ii) I do not understand it to be alleged by Dr Hussain that the matters giving rise to the second amended charge, about the 29 June 2010 note, were not investigated. They were covered by the conduct investigation.

    iii) By the letter dated 30 November 2010 Dr Williams explained to Dr Hussain that the conduct investigation was "into your clinical notes regarding Baby S, which appear to have been made non-contemporaneously". Whether or not Dr Hussain in fact received the letter, his investigation covered the 5 July 2010 entry, which is the focus of the third amended charge. It is clear from the notes of Dr Williams' meeting with her on 6 December 2010 that he asked Dr Hussain about it.

    iv) The notification matter, to which the fourth of the amended charges relates, was the subject of the notification investigation.

    v) The complaint giving rise to the fifth of the amended charges arose out of the notification investigation. Dr Hussain had not been, and could not have been, told of this "specific allegation" in advance, but that does not mean that Dr Haigh, as the case manager, did not have sufficient information to decide whether there was "a case of misconduct that should be put to a conduct panel"

  171. I therefore do not accept that the matters that give rise to the amended charges were covered by the investigations and sufficiently covered by the investigators' reports for a proper decision to be made about whether the concerns about Dr Hussain's conduct should be considered by a conduct panel. However, Dr Hussain makes more specific complaints that the investigations did not comply with paragraph 1.15 of the Practitioners Disciplinary Procedure in that:
  172. i) She was not informed of the "specific allegations".

    ii) She was not given an opportunity to comment upon the allegations.

  173. Dr Hussain was informed of the allegations being investigated in the notification investigation by Dr Haigh's letter of 30 December 2010. As for the conduct investigation, Dr Hussain was offered the opportunity to defer the meeting with Dr Williams on 6 December 2010 if she wished to have more time to be ready for it, but preferred for it to go ahead. The SUI was not an investigation under the Practitioners Disciplinary Procedure, nor was it an investigation into "allegations" against Dr Hussain. Before the meeting on 8 November 2010, Dr Hussain was told by Mr Sivakumaran that he was investigating the management of Baby S. As Mr Powell made clear, Dr Hussain does not complain that disciplinary allegations derived from an SUI investigation, and I do not understand it to be suggested that the SUI procedures should have been exactly those for set out in the Practitioners Disciplinary Procedures. In any case, I reject this complaint because, as I have explained, I do not understand the Practitioners Disciplinary Procedure to contemplate that an allegation of misconduct put to a conduct panel should exactly mirror the original "specific allegation" that was the subject of an investigation and I conclude that Dr Hussain was informed sufficiently for the purposes of paragraph 1.15 of the matters by way of allegations and concerns that were the subject of each of the investigations.
  174. As for the complaint that Dr Hussain was not given an opportunity to comment on the allegations in the Amended Charges, there is no such requirement in the Practitioners Disciplinary Procedure. Paragraph 1.15 states that the practitioner must be afforded "the opportunity to put their view of events to the case investigator", and Dr Hussain was given that opportunity.
  175. Dr Hussain also alleges that there has been a breach of paragraph 1.19 in that "The Case Manager [Dr Haigh] did not make a decision to refer these allegations to a hearing". Paragraph 1.19 does not itself require the case manager to take such a decision: it is about the report that an investigator should make (and about when (s)he should complete the investigation and report). In this case, the reports did contain sufficient information for Dr Haigh to decide how the matter should be progressed, and more specifically whether a case of misconduct should be taken to a conduct panel.
  176. Dr Hussain's last complaint directed specifically to the decision to bring the Amended Charges is that the investigators did not obtain "appropriate independent professional advice", and therefore did not comply with paragraph 3.2 of the Practitioners Disciplinary Procedure. Mr Powell submits that in this context "professional" advice means advice from an appropriate member of the medical profession. For present purposes I am prepared to assume, without deciding, that this is correct. The Trust did not maintain that the investigators took independent advice of this kind. However, Mr Powell did not indicate what advice would have been appropriate or why any of the investigators might have taken such advice. In my judgment, there would have been no point in them doing so. I do not accept that paragraph 3.2 requires investigators to take "appropriate" advice when none was required, and I reject the complaint that paragraph 3.2 was contravened.
  177. I therefore reject the various complaints that Dr Hussain makes about the procedures that have led to the Trust's decision that Amended Charges should be heard by a conduct panel. However, even if I had decided that, in some or all of the ways alleged by Dr Hussain, the procedures diverged from those stated in the Practitioners Disciplinary Procedure, I would not have concluded that therefore the Trust is not entitled to proceed to a hearing of the Amended Charges. Even if the provisions of the procedure have not been observed, they are not said to be, and to my mind should not be taken to be, conditions precedent to a valid and lawful decision to present allegations of misconduct to a disciplinary panel or to a valid and lawful hearing before a panel.
  178. Other complaints about the investigations and the procedures

  179. Even before the Trust presented the amended charges, Dr Hussain made other complaints about the investigation. I can deal with them briefly. They are that the Trust failed to comply with paragraphs 1.13 and 1.15 of the Practitioners Disciplinary Procedure.
  180. First, it is pleaded that "the Defendant failed through Mr Siva[kumarana], Dr Williams and Ms White to seek the Claimant's views on information that should be collected in the investigations". The procedure does not require the Trust to do this, either through the investigators or otherwise. Paragraph 1.13 states that the investigator "approach the practitioner concerned to seek views on information that should be collected". It is to be observed that this provision is stated in terms of what the investigator should do, whereas the paragraph elsewhere stipulates what he must do. As I interpret paragraph 1.15, it places no obligation on investigators: it provides them with guidance. In any case, the complaint is inconsequential: Dr Hussain was given every opportunity by each of the investigators (both before and after she had Mr Chaudhary's assistance) to express any such views. It is not said that, if the investigators had more positively "approached" Dr Hussain for her views about what information should be collected, she would have made any suggestions, and she does not suggest what information should or might have been collected but was not.
  181. Next, it is pleaded that the Trust failed to provide Dr Hussain with an "opportunity to see correspondence relating to the case, in particular NCAS correspondence", and that it therefore failed to comply with paragraph 1.15 of the Practitioners Disciplinary Procedure. Dr Hussain does not state what correspondence with NCAS should have been provided to Dr Hussain and does not suggest that it would have affected the course of any of the investigations had she been provided with such correspondence. I would not interpret paragraph 1.15 as covering correspondence from NCAS to the Trust giving guidance about how to deal with the concerns that were the subjects of the investigations. I consider the paragraph is directed to correspondence about and evidencing the matters that are the subject of an investigation. There is no evidence that Dr Hussain did not have the opportunity to see such correspondence.
  182. Dr Hussain pleads that the Trust failed to provide her with a "list of the people that Mr Siva [Mr Sivakumaran], Dr Williams or Caroline White would interview", and that therefore it did not comply with paragraph 1.15 of the Practitioners Disciplinary Procedure. In fact, this complaint was hardly pursued at trial by Mr Powell, although it was not specifically abandoned.
  183. As I have mentioned, this complaint was raised in relation to the conduct investigation by Mr Chaudhary in his letter of 25 January 2011 and Dr Haigh refuted it in his reply of 8 February 2011. In her evidence Dr Hussain stated that Dr Williams did not provide her with such a list and this evidence was not challenged when she was cross-examined. In these circumstances, although the evidence about this complaint is meagre and was not fully explored during the trial, I conclude that Dr Hussain was not given such a list in relation to the conduct investigation.
  184. Dr Hussain also gave unchallenged evidence that she was not provided with a list in respect of the SUI investigation, and I so find. However, the SUI investigation was not covered by the provisions of Practitioners Disciplinary Procedure and this cannot be said to be a failure to comply with it.
  185. Dr Hussain's evidence was that Ms White did provide her with a list of those whom she was to interview. I so find and reject that part of Dr Hussain's pleaded case.
  186. There is no suggestion that any failure to provide Dr Hussain with a list of potential interviewees affected the course of any investigation in any way. There is no suggestion that any of the investigators was asked for a list of potential interviewees and refused to supply the information.
  187. In any case, I would not interpret paragraph 1.15 as placing a requirement upon the Trust, but as being directed to how investigators are advised to proceed. The Trust did not contravene the procedure in so far as the investigators did not so proceed.
  188. Finally, Dr Hussain complains that Dr Haigh and the Trust did not give her reasons for the paragraph 4.5 decision. She was not given reasons, but she had no right to them under the Practitioners Disciplinary Procedure. The procedure expressly states that the practitioner is to be given reasons in respect of some matters: for example, paragraph 4.18 provides that, if the practitioner raises objection to the choice of a panel member for a capability hearing, the Trust "must provide the parishioner with the reasons for reaching its decision in writing before the hearing can take place". It does not require reasons in respect of paragraph 4.5 decisions, and there is no basis upon which such a requirement can be implied.
  189. Dr Hussain's contract with the Trust

  190. Dr Hussain has been employed as a consultant paediatrician at the East Surrey Hospital, Redhill, since 2004. Her contract of employment is dated 16 August 2004. It includes these express terms:
  191. i) At clause 3, which is headed "General Mutual Obligations":

    "Whilst it is necessary to set out formal employment arrangements in this contract we also recognise that you are 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 you and we work in a spirit of mutual trust and confidence. You and we agree to the following mutual obligations in order to achieve the best for patients and to ensure the efficient running of the service:

    ii) At clause 17, which is headed "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 normal standards of behaviour, or that your professional competence has been called into question, we will resolve the matter through our disciplinary or capability procedures, subject to the appeal arrangements set out in those procedures."
  192. I observe that clause 33 is an entire terms clause, which provided that:
  193. "This contract and the associated Terms and Conditions contain the entire terms and conditions of your employment with us, such that all previous arguments, practices and understandings between us (if any) are superseded and of no effect. Where any external term is incorporated by reference such incorporation is only to the extent so stated and not further or otherwise."
    However, neither party relied upon this clause.
  194. Mr Powell advanced three arguments in support of Dr Hussain's contention that the provisions of the Practitioners Disciplinary Procedure had contractual effect between her and the Trust:
  195. i) First, that the provisions were incorporated into the contract of employment by the terms of that contract.

    ii) Secondly, that they were (as it was put in Mr Powell's skeleton argument) "impliedly incorporated by virtue of custom and practice, by virtue of its being drawn to the attention of [Dr Hussain], the practice of following it, its adoption by agreement and its incorporation into a written agreement".

    iii) Thirdly, that the contract of employment included "terms of trust and confidence" and that the Trust would be in breach of its obligations of trust and confidence if it did not observe the Practitioners Disciplinary Procedure, or at least if it did not do so without good reason.

  196. The first argument is based upon clauses 3 and 17 of the contract of employment. It is common ground that the proper approach for determining whether provisions such as those of the Practitioners Disciplinary Procedure have incorporated into the contract of employment is summarised by Hobhouse J in Alexander v Standard Telephones & Cables Ltd (No 2), [1991] IRLR 286, 292-3 as follows:
  197. "The relevant contract is that between the individual employee and his employer; it is the contractual intention of those two parties which must be ascertained. In so far as that intention is to be found in a written document, that document must be construed on ordinary contractual principles. In so far as there is no such document or that document is not complete or conclusive, their contractual intention has to be ascertained by inference from the other available material including collective agreements. The fact that another document is not itself contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee. Where a document is expressly incorporated by general words it is still necessary to consider, in conjunction with the words of incorporation, whether any particular part of that document is apt to be a term of the contract; if it is inapt, the correct construction of the contract may be that it is not a term of the contract. Where it is not a case of express incorporation, but a matter of inferring the contractual intent, the character of the document and the relevant part of it and whether it is apt to form part of the individual contract is central to the decision whether or not the inference should be drawn."
  198. The second argument appears to reflect the judgments of the Court of Appeal in Albion Automotive Ltd v Walker, [2002] EWCA Civ 946. That case was about whether employees who had been made redundant were entitled to enhanced redundancy payments because the employers had made such payments on previous occasions. The employees did not have written contracts of employment. Peter Gibson LJ, with whom the other members of the Court of Appeal agreed, endorsed the submission of the employees' counsel (set out at para 15) that, when assessing whether a policy originally produced unilaterally by management had acquired contractual status, a number of considerations are relevant, including these:
  199. "(a) whether the policy was drawn to the attention of employees;
    (b) whether it was followed without exception for a substantial period;
    (c) the number of occasions on which it was followed;
    (d) whether payments were made automatically;
    (e) whether the nature of communication of the policy supported the inference that the employers intended to be contractually bound;
    (f) whether the policy was adopted by agreement;
    (g) whether employees had a reasonable expectation that the enhanced payment would be made;
    (h) whether terms were incorporated in a written agreement;
    (i) whether the terms were consistently applied."
  200. In this case the "custom and practice" upon which this argument is based, as I understand it, is that NHS trusts generally recognise and follow procedures set out in documents such as MHPS or the Practitioners Disciplinary Procedure. Although there is no specific evidence about this, I infer that they do so, notwithstanding Dr Haigh's evidence of standard practice in the NHS about excluding practitioners.
  201. With regard to the consideration whether the policy was drawn to the attention of the employee, on 2 February 2007 the Trust wrote to Dr Hussain advising her that "a number of Trust policies" had been revised and agreed "in the usual way via the Local Negotiating Committee". It enclosed a copy of the Practitioners Disciplinary Procedure. It required Dr Hussain to return a slip stating that she had received and read it. There is no specific evidence that she did so, but there is no reason to think that she did not act as requested and, if it matter, I infer that she probably did so. However, Mr Powell rejected any suggestion that such an exchange in itself created a contract between the Trust and Dr Hussain that the Trust would observe the procedure. This does not mean that the provisions of the procedure were not incorporated into the contract of employment: in Bristol City Council v Deadman, [2007] EWCA Civ 822 at para 17 Moore-Bick LJ, with whom Carnworth and Hallett LJJ agreed, said that:
  202. "…where an employer has published and implemented with the concurrence of employees' representatives formal procedures providing for the manner in which complaints are to be investigated, it will usually become a term of the contract of employment that those procedures will be followed unless and until withdrawn by agreement. The fact that in this case the procedures were made in the implementation of a non-contractual policy is in my view of no significance. What matters is whether they were in fact adopted as part of the contract of employment, …"
  203. Mr Powell's third argument is based upon the principle, endorsed by the House of Lords Malik v BCCI, [1998] AC 20, that contracts of employment generally contain an implied term of mutual trust and confidence between employer and employee.
  204. In some ways, I find this tripartite submission rather schematic. I do not criticise Mr Powell. His approach is entirely conventional. But in the end the purpose is to determine the (objectively evinced) intention of the parties to the contract of employment at the time that it was made, and, as it seems to me, the question is whether, given that NHS trusts generally follow agreements such as the Practitioners Disciplinary Procedure, and given that, as Dr Hussain's contract of employment emphasised, the parties were to work together on the basis of mutual trust and confidence, and given the terms of the Contract of Employment, did Dr Hussain and the Trust evince an intention when they entered into the contract of employment that agreed procedures such as the parts of the Practitioners Disciplinary Procedure upon which Dr Haigh relies should be of contractual standing between them. Whether they are introduced through what the law would regard as an express term or as an implied term is of secondary importance: after all, the line between inference and implication (that is, between the proper understanding of, and proper inferences to be drawn from, expressed terms and the introduction of terms into a contract by implying them) is often a fine one and imposed by legal analysis rather than the nature of language.
  205. Mr Sutton accepted that some aspects of the Practitioners Disciplinary Procedure are of contractual effect between Dr Hussain and the Trust. He was constrained to do so: the Trust was not otherwise entitled to exclude Dr Hussain and to bring disciplinary proceedings against her. He disputes that the specific provisions upon which Dr Hussain relies have contractual effect. I hope that I fairly state the thrust of his submission as follows: that the proper inference as to the intention of the parties to the contract of employment is that, while they agreed that the Trust should deal with questions of suspension, allegations of misconduct and concerns about capability through procedures such as those described in the Practitioners Disciplinary Procedure, they are not to be taken to have intended that the individual provisions of such a procedure should have contractual effect. He argued that this submission is supported by the wording of clauses 3 and 17 themselves. Clause 3, he said, is an unlikely vehicle to incorporate the detailed provisions of the Practitioners Disciplinary Procedure: it is headed "General Mutual Obligations", and it states in general terms a recognition that, notwithstanding the "formal employment arrangements set out in this contract", the relationship between the Trust and an employee in Dr Hussain's position depends upon the parties maintaining a continuing relationship of a trust, confidence, co-operation and goodwill. It was in that context that the parties agreed to mutual obligations (among other things) to follow the Trust's policies, working practices and protocols. As for clause 17, the agreement was to resolve disciplinary matters through the Trust's disciplinary and capability procedures, which does not, as Mr Sutton submitted, indicate an intention that they should be followed exactly or to the letter.
  206. Before I examine further Mr Sutton's submission, I shall refer to some of the authorities cited by Mr Powell, in which the courts have considered whether provisions derived from MHPS were of contractual effect between a practitioner and the employer. In Mezey v South West London & St George's Mental Health NHS Trust, [2008] EWHC 3340 (QB), Underhill J granted an injunction restraining disciplinary proceedings against a consultant on the grounds that such proceedings were not in accordance with the fourth part of MHPS and so not in accordance with the employment contract between the consultant and the employer trust. The Court of Appeal [2010] EWCA Civ 293 upheld that decision. In that case, it was common ground between the parties that the relevant provisions of MHPS were contractual: the Court of Appeal expressed some uncertainly about how that came about, but proceeded on that basis: see para 62 per Toulson LJ, "Despite the mist surrounding precisely how MHPS became part of the contract governing any disciplinary proceedings by the trust against Dr Mezey …".
  207. Mr Powell also referred to Kulkarni v Milton Keynes Hospital NHS Foundation Trust, [2010] ICR 101, another case in which the Court of Appeal gave contractual effect to the fourth part of MHPS. The employer trust in that case had refused to allow a trainee doctor facing disciplinary proceedings to be represented at the hearing by a lawyer instructed by his defence organisation. The issue whether this was lawful turned upon the proper construction of a particular paragraph of MHPS, part IV paragraph 22. It was not in dispute that this paragraph was contractual as between the doctor and the employer trust.
  208. These cases do not assist Dr Hussain because they did not engage with the issues about contractual incorporation and the implication of terms into the contract of employment that are in dispute here. Such questions were, however, considered in Hameed v Central Manchester Universities Hospitals NHS Foundation Trust, (cit sup), in which the claimant contended that disciplinary proceedings against her had been conducted unfairly, in breach of her contract of employment and in breach of article 6 of the Convention. In that case Dr Hameed had no written contract of employment at the relevant time, but it was common ground that her employment was contractually governed by the standard Terms and Conditions of Service for doctors employed in the NHS published in September 2002, including paragraph 189a thereof: "… issues relating to a practitioner's conduct capability or professional competence should be resolved through the employing authority's disciplinary or capability procedures (which will be consistent with the [MPHS] framework) …". The court had to decide whether the contract included provisions of the employer's document produced to implement MHPS either expressly through paragraph 189a or through an implied term of trust and confidence.
  209. Applying the principles stated by Hobhouse J in Alexander (cit sup), Swift J concluded that, not "each and every provision of the Trust Procedure is apt to be treated as an express contractual requirement. There are a small minority of provisions which are too vague and/or discursive to fulfil such a function …" (at para 68). However, she considered that, "In the main, the provisions are, and were intended to constitute, legally binding obligations". More specifically, she concluded that there was incorporated into the employment contract a provision that "The hearing should be conducted courteously and fairly …", rejecting the argument that it was too vague, subjective and uncertain to be a contractual term.
  210. A rather different approach was taken by Simeon Maskrey QC, sitting at a deputy judge of the High Court, in Lakshmi v Mid Cheshire Hospitals NHS Trust, [2008] IRLR 956. A consultant physician employed by the defendant claimed that the trust was in breach of contract in its conduct of disciplinary proceedings against her. As I read the paragraph 27 of the judgment, the Judge considered it improbable that only some provisions of the procedure had been incorporated into the contract of employment because then "the parties [would] have left it wholly unclear as to which parts should be incorporated and which should not". He was also concerned that, if parts of the procedure were incorporated into the contract of employment, then "they have to be construed strictly and in accordance with contractual law", and that this might, in some circumstances, lead to absurd results. He concluded that, if the employment contract was to be given a sensible and workable meaning intended by the parties, it should not be taken to include the terms of the trust's disciplinary procedure, but to include a term that the employer would comply with the procedure unless there was good reason to do otherwise. If the employer departed from the procedure without good reason, it would be in breach of its obligation to act in good faith.
  211. If it matter, I prefer the approach and analysis of Swift J to that which Mr Maskrey appears to have adopted at paragraph 27 of his judgment in Lakshmi, but I consider the difference between them to be less marked than might at first appear. The most obvious difference is that Mr Maskrey would allow the employer (and presumably the practitioner) to depart from the provisions of the procedure "for good reason". If he intended by this to afford the employer a general discretion to depart from the procedure if it considered departure justified, I respectfully disagree. If he meant that the parties are not to be taken to have intended precisely and literally to comply with the detailed provisions of the procedure if that would have absurd and impractical consequences, then this purpose can be achieved through the principles explained in the Alexander case to determine which parts of the procedure are incorporated through the (objectively evinced) intention of the parties and by a properly robust application of the conventional principle of contractual construction that parties are not taken to have intended to make an agreement that produces absurd results or is inconsistent with them having a workable contractual relationship. The principles summarised in Alexander and applied in many subsequent cases recognise that some provisions of procedures of this kind have contractual effect and others not, and often it is a matter of fine judgment to decide whether individual provisions are or are not contractual. Even in commercial contracts, the courts require a "detailed semantic and syntactical analysis of words" to yield to business common sense: see Lord Diplock's much cited statement in Antaios cia Naviera SA v Salen Rediererna AB, [1985] AC 191at p.201D/E.
  212. I return to consider Mr Sutton's submission about whether and how far the provisions of the Practitioners Disciplinary Procedure are contractual, and it is convenient first to consider an argument relating to the later stages of the disciplinary procedures founded upon the decision in Johnson v Unisys Limited, [2003] 1 AC 518. In that case, the House of Lords rejected an argument that the implied term of mutual trust and confidence provided a remedy for an employee who had been summarily dismissed and, it was said, as a result suffered a mental breakdown and damage not only to his health but to his professional development, financial welfare and future employment prospects. The House of Lords determined that the implied term, which was concerned with the continuing relationship between employer and employee, should not be developed to cover the dismissal of an employee, given the protection for employees who are unfairly dismissed provided by the statutory regime, which should be taken to define the extent of protection that Parliament considered appropriate.
  213. In his speech in the Johnson case Lord Hoffmann said at paragraph 66 that he could not believe that, when it provided in the Employment Rights Act, 1996 that an employee's particulars of employment should include a note of any applicable disciplinary rules, Parliament intended that this should create a common law right to damages. As Moore-Bick LJ explained in Edwards v Chesterfield Royal Hospital NHS Foundation Trust, [2010] EWCA Civ 571 para 27, Lord Hoffmann did not mean that the law prevents an employer and employee from agreeing that disciplinary rules should be incorporated into a contract of employment so as to give rise to a claim for damages if they are contravened. Moore-Bick LJ continued, "There is nothing in the 1996 Act that excludes any of the rights that the employee would otherwise enjoy at common law and in the absence of legislation to that effect it is open to the parties to the contract to agree, if necessary by clear words, that a particular term is to be legally binding" (emphasis added). Ward and Lloyd LJJ agreed with Moore-Bick LJ.
  214. Mr Sutton relied the words that I have emphasised to support his submission that clear words are required to incorporate into a contract of employment the provisions of an employer's disciplinary policy or procedure in so far as they relate to dismissal and "the process of dismissal", that is to say in so far as they fall within what Lord Nicholls referred to in Eastwood v Magnox Electric Plc, McCabe v Cornwall County Council, [2004] UKHL 35 as the "Johnson exclusion area". In the McCabe case, Lord Nicholls (with whom Lord Hoffmann, Lord Rodger and Lord Brown agreed) upheld the decision of the Court of Appeal that the case should be remitted for trial, "in order to decide whether the act of suspension was "part of the process of dismissal". It will have to be decided whether, if the pleaded facts are proved, they are subsumed in the dismissal for which Mr McCabe has already recovered such compensation as statute allows, or whether they constitute a separate and antecedent wrong" (at para 26).
  215. Although Mr Sutton submitted that a procedure for suspension and a procedure for investigation may or may not properly be regarded as parts of the "process of dismissal" so as to fall within the "Johnson exclusion area", it was not argued that they do so in the present case. However, it was argued that, once the Trust's management had produced the statement of its case in the March Report, which contained a clear recommendation to proceed to a conduct hearing that might lead to Dr Hussain's dismissal, the Trust was engaged in the "process of dismissal", and so (i) particularly clear words would be required for provisions of the Practitioners Disciplinary Procedure governing the consequent procedures to be incorporated into the contract of employment, and (ii) nothing concerning that part of the process is covered by the implied term of mutual trust and confidence.
  216. I am unable to accept that this argument assists the Trust. First, I am unable to accept that the phrase "if necessary by clear words" used by Moore-Bick LJ upon which Mr Sutton's argument rests will bear the weight that he places upon it. I cannot believe that Moore-Bick LJ intended to stipulate a more demanding test for determining whether provisions dealing with matters within the "Johnson exclusion area" are incorporated into a contract of employment than is used for other provisions. After all, it would not rest easily with his observations in Bristol City Council v Deadman, to which I have already referred.
  217. Secondly, I do not consider that the disciplinary procedure that the Trust seeks to pursue against Dr Hussain can be regarded as part of a process of dismissal. It is not for me to comment upon whether the allegations made against Dr Hussain are to be likely to be established or upon whether they should, or are likely to, lead to her dismissal if they are. However, Mr Sutton's submission would seem to require the court to examine just such questions. Otherwise, it would mean that every disciplinary procedure would be regarded as part of a "process of dismissal", even if the allegations were apparently too trivial to lead any reasonable employer to dismiss the employee.
  218. Thirdly, I would, in any case, conclude that the words of clause 17 are sufficiently clear to incorporate terms of the Practitioners Disciplinary Procedure including terms concerning conduct hearings that might lead to dismissal (which were introduced into the Practitioners Disciplinary Procedure by reference to the Staff Disciplinary Procedure) and concerning the preparations and arrangements for such hearings. I do not accept that the reference to matters being resolved "through" disciplinary and capability procedures connotes that the procedures are to be followed only in outline or in broad terms. To my mind, it connotes that the procedures are to be followed, providing and in so far as they are apt to be contractual and the wording of the relevant provisions indicates that they were intended to be mandatory.
  219. I must therefore consider the various provisions of the Practitioners Disciplinary Procedure with which the treatment of Dr Hussain did not comply, or would not have complied if the Trust had proceeded as it proposed to do when these proceedings were brought. They are in particular:
  220. i) Paragraph 2.9, with which the Trust did not comply because her exclusion was not reviewed after 10 January 2011.

    ii) Paragraphs 2.18, 2.25 and 2.27, which are concerned with the treatment of practitioners who are excluded and directed to preventing restrictions going beyond what is justified.

    iii) Paragraph 4.5 and possibly paragraph 3.6, which are relevant to the Trust's decision to present the March charges to a conduct hearing.

  221. There is no single test as to whether an employer and employee intended to agree that provisions of an agreement such as the Practitioners Disciplinary Procedure should be contractual between them (rather than advisory or hortatory or an expression of aspiration), and if so which provisions. The indicia that a provision is to be taken to have contractual status which are, I think, of some relevance to this case include these:
  222. i) The importance of the provision to the contractual working relationship between the employer and the employee and its relationship to the contractual arrangements between them: as I understand it, it is common ground in this case that, because parts of the Practitioners Disciplinary Procedure are contractual, in some circumstances the Trust might exclude Dr Hussain or bring disciplinary proceedings for misconduct against her. The implication of this, as it seems to me, is that provisions important to implementing the agreement about exclusion and about conduct hearings are also apt to be contractual: the more important the provision to the structure of the procedures, the more likely it is that the parties intended it to be contractual. As Auld LJ said in Keeley v Fosroc International Ltd, [2006] IRLR 961 (which concerned whether provisions relating to enhanced redundancy payments in a Staff Handbook were enforceable as part of individual contracts of employment),

    "Highly relevant in any consideration, contextual or otherwise, of an "incorporated" provision in an employment contract, is the importance of the provision to the over-all bargain, here, the employee's remuneration package – what he undertook to work for. A provision of that sort, even if couched in terms of information or explanation, or expressed in discretionary terms, may still be apt for construction as a terms of his contract … ." ( at para 34).

    ii) The level of detail prescribed by the provision: as Penry-Davey J said in Kulkarni v Milton Keynes Hospital NHS Trust, [2008] IRLR 949 at para 25, the courts should not "become involved in the micro-management of conduct hearings", and the parties to the contract of employment are not to be taken to have intended that they should be. (In the Court of Appeal in Kulkarni, (loc cit) at para 22, Smith LJ endorsed this observation of Penry-Davis J.)

    iii) The certainty of what the provision requires: as Swift J observed (in Hameed (loc cit) at para 68), if a provision is vague or discursive, it is the less apt to have contractual status.

    iv) The context of the provision: a provision included amongst other provisions that are contractual is itself more likely to have been intended to have contractual status than one included among other provisions which provide guidance or are otherwise not apt to be contractual.

    v) Whether the provision is workable, or would be if it were taken to have contractual status; the parties are not to be taken to have intended to introduce into their contract of employment terms which, if enforced, not be workable or make business sense: see Malone v British Airways, [2010] EWCA Civ 1225 at para 62.

  223. This is not, of course, an exhaustive list of considerations which might bear upon whether a provision in a collective agreement is apt to have contractual status. In particular, the wording of the provision is also of significance. I observe that in the Practitioners Disciplinary Procedure some provisions are expressed in terms of what "must" be done and others in terms of what "should" be done. I have already (at paragraph 135 above) commented upon the significance of this in the specific context of paragraph 1.15. I am otherwise unable to discern from the procedure as a whole any pattern to this varying terminology, and generally I do not regard the use of "should" rather than "must" as indicative that a provision in it is not intended to be contractual or is not apt to have contractual status.
  224. If, as the Trust accepts, and I consider rightly accepts, it is entitled to exclude Dr Hussain because the Practitioners Disciplinary Procedure entitles it to do so and is to that extent contractual, it seems to me necessarily to follow that the provisions about when and in what circumstances the Trust is entitled to order either her exclusion (whether "immediate" or "formal") are of contractual effect. For this reason, I accept Dr Hussain's contention that paragraphs 2.6 and 2.17, which state the purposes for which exclusion may properly be directed and so define and limit the Trust's entitlement to exclude a practitioner were incorporated into Dr Hussains's contract of employment with the Trust. For essentially similar reasons, I also consider that paragraph 2.18 is of contractual status between Dr Hussain and the Trust: its purpose and effect is that the Trust is obliged to assess the restrictions necessary for the legitimate purposes stated in paragraph 2.6 and 2.17 and is not entitled to impose more extensive restrictions.
  225. I therefore accept Dr Hussain's submission that, in excluding her as it did and imposing as extensive restrictions upon her as it did, both when it ordered her immediate exclusion and when it formally excluded her, the Trust acted in breach of her contract of employment; and that in continuing the present restrictions, the Trust is still acting in breach of her contract of employment. I shall invite submissions about the appropriate remedy.
  226. I also consider the requirement that exclusion be limited to four weeks at a time to be contractual between Dr Hussain and the Trust. It is an important part of the arrangements for exclusion, designed to provide protection for the practitioner against extended periods of exclusion. The Trust is in breach of contract because it did not observe this requirement of paragraph 2.9 after 10 January 2011.
  227. In view of my conclusion that paragraphs 2.6 and 2.17 are contractual, Dr Hussain does not, as it seems to me, need to rely upon her allegations that paragraphs 2.5, 2.7, 2.25 and 2.27 also had contractual standing between her and the Trust, but I shall deal with them briefly:
  228. i) I consider that paragraphs 2.5 and 2.7 are explanatory and provide guidance as to the nature of exclusion and how it can be avoided. As I read them, they do not impose obligations upon the Trust (or the practitioner) and are not mandatory. If I am right that other paragraphs concerning exclusion have contractual status, these paragraphs add nothing of importance. I do not consider them apt for incorporation into individual contracts of employment.

    ii) Paragraphs 2.25 and 2.27 are in a group of three paragraphs of the procedure under the heading "Keeping in contact and availability for work". Some provisions in this group of paragraphs are, to my mind, clearly contractual: for example, that the practitioner should remain on full pay whilst excluded and that the practitioner must therefore remain available for work during normal contracted hours. Nevertheless, I have concluded that the provisions of paragraphs 2.25 and 2.27 are not apt to be contractual and are by way of guidance. To my mind, paragraph 2.25 is not apt to be contractual because of its unqualified terms: in most cases, no doubt, the practitioner should not be restricted from the activities referred to, but not invariably so. (It has been suggested in this case that Dr Hussain should not be permitted to take part in clinical audit, but I am not in a position on the basis of the information before me to decide whether or not that view is justified.) Paragraph 2.27 appears to me to be advisory or to provide guidance rather than to be apt for contractual incorporation: it is directed to what the case manager should do rather than to what is required of the Trust, and it descends to a degree of detail about how exclusion should normally be managed that is not apt for a contractual obligation.

  229. I come to Dr Hussain's complaint that the Trust has acted or is threatening to act in breach of her contract of employment in bringing the disciplinary proceedings against her. This depends essentially upon whether her contractual arrangements with the Trust provide that it should deal her case in accordance with paragraph 4.5 of the Practitioners Disciplinary Procedure. In my judgment they do. It is not disputed that her contract required that the Trust should deal with allegations of misconduct against Dr Hussain and concerns about her capability through the Practitioners Disciplinary Procedure, under the processes set out respectively in parts 3 and 4. It is obviously important to a practitioner under which process the Trust deals with a case against him or her that "cover[s] conduct and capability issues". I consider that the parties are to be taken to have intended that a provision as important as paragraph 4.5 should be contractual. Although the language of the paragraph does not in itself mark it as contractual, business reality requires that it should be and it is readily workable as a contractual provision: if such a term had been expressly and directly written into the contract of employment, there would have been no difficulty in giving effect to it. I add that, if the decision about what allegations should be pursued as the March charges be regarded as one taken under paragraph 3.6 "upon the most appropriate way forward", I would again, for similar reasons, regard it as governed by the contractual regime between Dr Hussain and the Trust.
  230. I have concluded that, the Trust's decision to take the March charges separately to a conduct hearing was not in accordance with Practitioners Disciplinary Procedure, and so, in my judgment, it was proposing to act in contravention of the contract of employment. Its revised intention to proceed to a separate hearing in respect of the amended charges will not involve contravention of paragraph 4.5 or otherwise be in breach of the procedure.
  231. I have rejected Dr Hussain's various other complaints that the procedures adopted for investigating and otherwise dealing with her case, were not in accordance with the Practitioners Disciplinary Procedure and so those aspects of her claim of breach of contract fail. I add that, in any event, I do not consider that parts of the Practitioners Disciplinary Procedure upon which these complaints are based are contractual. I cannot accept that the parties to individual contracts of employment intended that the detailed provisions about investigations (including paragraphs 1.13, 1.15 and 1.17) and about other matters should be enforced through the legal process as breaches of contract, with the court "micro-managing" these arrangements. I consider that these paragraphs are to be understood to be by way of advice or guidance to investigators and others.
  232. Conclusion

  233. I therefore conclude that the Trust is in breach of Dr Hussain's contract of employment with regard to her exclusion. I also conclude that, if it had pursued its decision to take the March charges to a conduct hearing, it would have been in breach of contract in doing so. I reject her other complaints. I shall invite further submissions about what order I should make.

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