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||Neutral Citation Number:  EWHC 2494 (QB)
||Case No. IHQ18/0509
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
||5th September 2018
B e f o r e :
MR JUSTICE MARTIN SPENCER
MR J. JUPP (instructed by Irwin Mitchell Solicitors) appeared on behalf of the Claimant.
MR S. CHEETHAM QC (instructed by Capsticks) appeared on behalf of the Defendant.
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR JUSTICE MARTIN SPENCER:
- This is an application by the claimant, Dr Mohamed Al-Obaidi, for an order and injunction requiring the defendant Trust, by whom he is employed, forthwith to lift the exclusion which it has imposed on him and permit him to return to work full-time at Wexham Park Hospital.
- The claimant is a consultant cardiologist with specialist experience in coronary intervention, angioplasty and the implantation of pacemakers and complex cardiac devices, such as defibrillators and biventricular defibrillators.
- He was first appointed by the predecessor of this defendant (Heatherwood and Wexham Park Hospitals NHS Foundation Trust) as a consultant in cardiology and general medicine in October 2006. In 2011, he took the role of clinical lead in cardiology, a role which he continued to perform until October 2017. At that stage, the clinical lead was divided across three sites covered by the Trust and the claimant relinquished his role as the clinical lead.
- In his statement, the claimant evidences the role which he undertook as lead cardiologist, describing how he instigated measures to expand the department and enhance the service, as summarised in paragraph 5 of his witness statement. There appears to be no doubt that the claimant is an experienced and highly regarded interventional cardiologist who, until December 2017, performed an important role for his patients and for the defendant Trust.
- He also describes in his witness statement the governance processes which were in place, explaining how the clinical services were coupled with a robust governance framework, which he was instrumental in implementing and which included weekly multidisciplinary meetings, monthly clinical governance meetings and regular monthly mortality and morbidity meetings.
- He says that the expanse of the service which he initiated and the success in delivering the service at Wexham Park Hospital led to substantial improvement and significant reduction in waiting times for lists on both in-patient and out-patient bases. There was thus a significant reduction of the need for some individuals to seek treatment in the private sector.
- He asserts, and it is not contested otherwise, that he has an unblemished record in practice. Thus, his yearly appraisals, as well as his revalidation assessments, never raised any concerns and in his last appraisal in April of last year the appraiser informed him that his 360 degree assessment was one of the highest positive responses he had seen in many years of practice. This is also attested to by the fact that he holds three discretionary points awarded as a result of his performance above and beyond his contractual duties.
- In the course of his work as an interventional cardiologist, he performed regular operating lists, usually performing a minimum of two to three coronary interventional procedures each week. Until January 2018, he was the most senior skilled operator in the department at Wexham Park Hospital. In additional, he performs approximately 200 pacemaker implantations a year and some 90-100 complex device implantations every year.
- It is also relevant to mention that the claimant's role as an interventional cardiologist is not confined to the performance of implantations and operations. He is also involved in out-patient work, in supervisory work of junior doctors, in a degree of research, in seeing patients in advance of operations and after operations and counselling them, and all the other activities which surround the work of an interventional cardiologist. As stated in the claimant's skeleton argument, this includes being involved in out-patient care and running out-patient clinics, assessments, managing acutely unwell patients, leading ward rounds and liaising with other teams involved in primary and secondary care.
- He also operated a specialised devices clinic, essential for the running of a successful devices service. He also had, at Wexham Park Hospital, his office with his correspondence and papers and all the other paraphernalia which goes with the job of a busy consultant.
- This came to an abrupt end in January 2018, when, at a meeting between the claimant and the Trust's medical director, Dr Timothy Ho, the claimant was informed that he was being excluded from work and that there was to be an investigation into his conduct. By a letter dated 29 January 2018, Dr Ho stated to Dr Al-Obaidi:
"A number of serious allegations have been raised about your conduct, which I believe are serious enough to warrant a formal investigation. I attach a summary of the allegations that I have asked to be investigated."
- He informed the claimant that he had appointed Mr John Ireland, an independent human resources practitioner, to be the case investigator, and that the allegations would be investigated pursuant to the Trust policy and procedure for maintaining high professional standards ("MHPS") for medical practitioners at the Trust. In relation to the question of restriction or exclusion, Dr Ho said:
"I have considered carefully whether or not it is appropriate to restrict your practice in any way or exclude you from the Trust. I note that the concerns do involve issues which could impact upon patient care/safety, such as team work with colleagues and robust audit processes. I also have a concern that the nature of your alleged behaviours (if true) means that it is likely that witnesses will be intimidated if you remain at work whilst the investigation is ongoing and they may not give full open evidence to any investigator. In particular, I note that some of the concerns relate to your behaviour towards individuals when they seek to raise concerns. In those circumstances, both to protect patients/colleagues and to ensure the investigation is not hindered in any way, I have decided to exclude you from the Trust while it is ongoing. I will ask Mr Ireland to conclude the investigation as quickly as possible so that this period of exclusion is kept to a minimum."
- The exclusion meant that Dr Al-Obaidi was not allowed to attend any clinical site of the defendant Trust and it meant, of course, that he was unable to see his patients and follow-up his existing clinical commitments. It is difficult to imagine a more serious position in which to put a highly regarded and valuable member of the cardiac team.
- Initially, the claimant sought the assistance of the Hospital Consultants and Specialists Association, who wrote to the Chief Executive of the Trust on 1 February 2018. The National Officer, Mr Marsh, stated that he was unable to understand or accept the conclusion that the allegations suggested in any way that the claimant would interfere with the investigation or that any patients or colleagues needed to be protected. He expressed frank astonishment that the Trust had taken this action based on the terms of reference and asked for a reconsideration. Mr Marsh pointed out that exclusion from work must not be misused or seen as the only course of action that could be taken.
- On 9 February, the Chief Executive, Sir Andrew Morris, replied, referring to section 44 of the Trust's policy on MHPS, and asking the Deputy Director of Human Resources, Mrs Hall, to make herself available. Mr Marsh was informed that Dr Ho was to be the case manager in relation to the investigation.
- On 23 February 2018, Dr Ho renewed the exclusion for a further period of four weeks, stating:
"As the concerns centre on patient safety and your conduct in relation to colleagues, the Trust needs to protect the interests of patients and staff. Accordingly, I feel that your presence at work may impede the investigation and patient safety. The decision to continue with your exclusion is a precautionary measure only and does not indicate any prejudgment of the outcome of the investigation."
- It is relevant to mention the allegations that were then being considered at this stage. These are set out in paragraph 15 of the particulars of claim. They were:
"1. Inappropriately discourages colleagues from making appropriate levels of Datix and serious incident reports, criticising them for making such reports and failing to make such reports himself;
2. Failing to support and participate in the mortality and morbidity meetings process at the Trust to the standard that would be expected of someone of his seniority;
3. Failing to promote the required level of openness and learning through the mortality and morbidity process;
4. Discouraging colleagues from working with Frimley Park Hospital colleagues;
5. Encouraging a culture of 'them and us' with respect to Frimley Park Hospital colleagues;
6. Inappropriately attempting to discuss a confidential investigation into two colleagues with others within the department;
7. Displaying intimidating and/or threatening behaviour towards colleagues who were mentioned."
- To these allegations was added an eighth allegation, namely that the claimant had deliberately provided a misleading account of the management of a patient, DM, in order to support an inaccurate statement by a consultant colleague who managed that patient.
- The claimant engaged the services of Ms Shazia Khan, who was then at Messrs Bindmans, but who has since transferred to Irwin Mitchell Solicitors, the case remaining with Ms Khan. She took up the representations on behalf of the claimant in relation to the claimant's exclusion. By a letter dated 20 March 2018, Ms Khan made representations pursuant to paragraph 44 of the MHPS policy as to why, in her view, the claimant's exclusion was not appropriate. In reply, on 22 March, the defendant informed Ms Khan that Mrs Louise Hall would consider the representations and arrange a meeting within five working days.
- At this stage, I quote from the Trust's policy and procedure for MHPS, which provides as follows:
44. Written representations may be made by the practitioner to the Chief Executive in regard to exclusion or investigation of a case. The Director of HR will meet with the practitioner to discuss the representations, and will then inform the practitioner of his/her decision in writing within five working days of the meeting.
45. If the practitioner is not satisfied with the Director of HR response, the practitioner can lodge a written appeal within five working days of receiving the written decision of the HR Director, giving details of the grounds for appeal."
- In the meantime, the claimant's exclusion was renewed for a further four weeks on 23 March 2018. On 26 March 2018, Ms Khan asked for further particulars of one part of Dr Ho's letter renewing the exclusion, where he had stated:
"Further allegations concern issues of patient safety and, importantly, potential probity in relation to the outcome of a patient."
It also stated:
"A number of allegations relate to potential serious conduct issues with colleagues, two of whom still work in the Trust and in close proximity to you."
- Ms Khan asked for particulars of the individuals being referred to and asked for confirmation that they both worked in the same cardiology department at Wexham Park Hospital as the claimant. Those details were provided in an email on 27 March 2018.
- The paragraph 44 meeting took place on 29 March 2018 and at that meeting the claimant, through his representatives, proposed terms for lifting the exclusion. These included conditions that the claimant would only undertake his Monday and Tuesday lists and that, if he was required to meet either of the two individuals referred to in Dr Ho's letter, he would only do so in the presence of a third party.
- The claimant had provided a position statement in advance of that meeting, which included making points about the ongoing detrimental effect of the exclusion on the claimant in relation to his skills. It was pointed out that the lengthy exclusion has had the effect and continues to have the effect of deskilling him, so that in the two months he had been excluded he had not undertaken a single interventional procedure; that being in the context of a national requirement to perform 75 angioplasties a year and 30 complex device implantations.
- It was also pointed out that the suggestion by Dr Ho that the allegations were serious and could constitute gross misconduct was not a reason within the MHPS policy for excluding a doctor. Other points were made.
- At the conclusion of that meeting, Mrs Hall indicated to the claimant's representatives that she was minded to follow the proposed course of conduct, whereby the exclusion would be lifted on the basis of the conditions proposed by the claimant's representatives. It is not clear when her recommendation was sent to Dr Ho and the Chief Executive, but it was probably in early April 2018.
- The decision should have been taken, according to paragraph 44, by 3 or 4 April 2018, but it appears that Dr Ho was on holiday at that time and Mrs Hall was not prepared to take her decision before Dr Ho had had a chance to comment on the proposed course of action.
- In the meantime, on 6 April, the claimant was interviewed by the case investigator, Mr Ireland. On 9 April, Ms Khan sent an email to the defendant recording that Mrs Hall had told the claimant she would be recommending the lifting of the exclusion and again emphasising the prejudice to the claimant with every day of exclusion that passed.
- Despite her indication, on 17 April 2018, some two weeks late, Mrs Hall decided to uphold the exclusion. Part of the delay was attributable to the fact that Mrs Hall had also taken leave or vacation during this period. She stated in that email:
"As discussed with Dr Al-Obaidi, on the information he presented to me I was minded to recommend that his exclusion be lifted and he be permitted to return to work on a limited basis. That limited basis was two days a week on lab work only. However, I did make it clear at that meeting that Dr Ho would need to be consulted first before I confirmed the outcome of my review, because he is ultimately responsible for patients' safety and matters relating to our doctors more generally. He therefore has an important role in considering whether it is appropriate and safe for Dr Al-Obaidi to return to work at this time.
I have now discussed the matter with Dr Ho and he remains firmly of the view that Dr Al-Obaidi's presence in the workplace is not appropriate at this time, in view of the serious concerns raised. In particular, he remains concerned that it is not possible to run a safe and effective service if staff are discouraged from raising concerns if Trust policies and procedures, such as M&M, are not followed, if Dr Al-Obaidi, who has a significant position of responsibility and seniority, promotes a hostile working environment and uses inappropriate threatening behaviour towards others.
The suggestion that he may have inappropriately attempted to discuss a confidential investigation with others also leads Dr Ho to have remained concerned that were he to return to the workplace he may try to influence the ongoing process."
She stated that, having given the matter careful thought, and bearing in mind Dr Ho's concerns, she had decided it was appropriate to continue the exclusion.
- In the particulars of claim at paragraph 28, it is alleged on behalf of the claimant that, in effect, Dr Ho vetoed the claimant's return to work, but this is not accepted on behalf of the defendant. The defendant's case is that Dr Ho had no right of veto and that the decision remained that of Mrs Hall and all that had happened was that she reasonably wished to take into account Dr Ho's views before reaching a final conclusion in relation to the claimant's ongoing exclusion.
- However, the way in which the decision was taken leaves an unfortunate impression and it is understandable how the claimant would have seen the process as involving a veto by Dr Ho. The lesson is probably that Mrs Hall erred in giving any sort of indication at the end of the meeting and, having done so, she put herself in a difficult position. She made matters worse by failing to comply with the provisions of paragraph 44 and make her decision within five days. It is to be emphasised that the timetable laid down is important because of the effect on the practitioner and it seems that the timetable was regarded casually in this case, in that the decision was delayed in the way that it was.
- Not surprisingly, Ms Khan wrote further to the defendant on 18 April protesting at the decision of 17 April. A further exclusion meeting with Dr Ho took place on 24 April when the exclusion was continued. On 25 April, a pre-action protocol letter was sent by Ms Khan, including an indication of an intention to apply for an interim injunction.
- This led to a surprising development on 26 April, when solicitors instructed on behalf of the Trust, Messrs Capsticks, indicated something of a volte face on the part of the Trust and stated that the Trust was in fact prepared to lift the exclusion, as requested by the claimant. The letter of 26 April 2018 stated as follows:
"1. Initially and for a short period your client would attend Catheterisation Laboratory (Cath Lab) sessions in a supernumerary role;
2. Our client is clear that your client requires the benefit of supervision on his return. This is necessary to ensure his competency and, therefore, would meet both the Trust's proper concerns about patient safety, but also your client's concern that he has been deskilled;
3. Given your client's seniority, there would therefore be a need for a suitably senior cardiologist to be present in that supervisory role and, as your client will confirm, there is no suitable person at Wexham Park. Accordingly, these sessions would take place at Frimley Park Hospital;
4. The initial supernumerary role will allow familiarisation with both the environment and the team and your client would then progress to supervised lists with a review of cases with a senior colleague;
5. It follows that your client would not perform waiting list initiatives, as that would be out of normal hours and therefore unsupervised;
6. Your client would need to confirm, as he has already indicated, that he would not carry out any private cases;
7. Your client's return would be on the basis of working two days a week.
8. Clearly, in returning to work at the Trust your client would have to undertake not to discuss the ongoing investigation, or the allegations, with other staff, directly or indirectly. We trust that you will advise him of the importance of this stipulation.
9. Equally, and, again, we do not believe your client will consider this unreasonably, he should not contact [and then two individuals are named] unless an emergency issue regarding a matter of patient safety, nor should he contact witnesses involved in the investigation process."
- On that basis, the claimant returned to work at Frimley Park Hospital two days a week from 2 May 2018. However, he remained excluded from returning to work at Wexham Park Hospital or, indeed, attending the premises of Wexham Park Hospital.
- I divert from the recitation of the history to comment that, as it seems to me, given that there had been no report at that stage from Mr Ireland, the position in relation to the allegations faced by the claimant remained the same as they had always done. It is not immediately clear why there should have been this change of position on the part of the defendant as at 26 April, unless perhaps the defendant had been advised by their solicitors, Capsticks, when first involved, that the exclusion did not appear to be justified in the circumstances.
- In his witness statement, Dr Ho deals with the lifting of the exclusion at paragraphs 36, 37 and 38. At paragraph 36, he states:
"Whilst I still remain firmly of the view that exclusion had been appropriate for the reasons articulated above, I had to balance this against the time and expense of litigation, together with the representations the claimant had made at our meeting two days prior, both verbally and in written submissions from his barrister. In particular, the claimant had stated that he felt that he was being deskilled, which I was surprised to hear, given his seniority and experience, but nevertheless this was of concern. I sought an informal verbal update from Mr Ireland and he confirmed he had interviewed almost everyone he felt he needed to speak to and would shortly be in a position to provide his report to me. In view of the above, I made the decision to lift the exclusion and instead put in place a number of safeguards to enable the claimant to return to work in a limited capacity."
- I have two concerns about this explanation from Dr Ho. First, it is difficult to understand how the balancing against the time and expense of litigation could have formed a proper basis upon which to decide to lift the exclusion. An exclusion is a serious and nuclear option for the protection of patients principally, but also for the protection of the investigatory process and, therefore, one would have thought, trumps the consideration of the time and expense of litigation. It is difficult to understand how the time and expense of litigation could have played a significant role in the decision to lift the exclusion if it had indeed been appropriate in the first place.
- Secondly, he does not indicate whether he had sought information from Mr Ireland previously as to when Mr Ireland had completed his interviews of those relevant to the investigation into the claimant. I would have expected that to have been a regular conversation between Mr Ho and Mr Ireland, because, in so far as the interference with the investigatory process was a serious concern, the sooner the relevant witnesses were interviewed, the sooner that concern would fall away and consideration could be given to the lifting of the exclusion. It is of concern that the discussion with Mr Ireland appears to have been reactive to the pre-action protocol letter, rather than an integral part of the process.
- On 2 May 2018, the claimant returned to work at Frimley Park for two days a week. The following day, 3 May, the report of Mr Ireland was received. Of the allegations which form the subject matter of the investigation by Mr Ireland, numbers 1, 2, 4, 6 and 7B were effectively dismissed. However, Mr Ireland indicated that there was a case to answer in relation to: allegation 3 (failing to promote the required level of openness and learning through the M&M process); allegation 5 (encouraging a culture of 'them and us' with respect to the Frimley Park Hospital colleagues); item 7 (displaying intimidating and/or threatening behaviour towards two colleagues, CS and SB); and 8 (deliberately providing a misleading account of the management of DM in order to support an inaccurate statement by a consultant colleague).
- However, when one delves into the detail of Mr Ireland's report, one finds very little substance to the remaining allegations which are significantly covered by caveats or watered down. On the other side of the coin, the report disclosed many positive aspects of the claimant's practice, as one would expect from his record, as I have already described. Thus, Mr Ireland stated:
"Many staff stated that Dr Al-Obaidi is very passionate and cares very much about patients and staff and his desire is to keep improving the service. There is also much agreement that clinically he is very sound and more than one said if they had a problem they would want him to be their doctor."
- Referring to the allegation that he had shouted at some staff, Mr Ireland said that a reasonable number of staff stated that Dr Al-Obaidi is direct and can get frustrated if things are not going well. He said:
"In my interview with Dr Al-Obaidi, I found that he did get louder on occasions and I think that there is sufficient weight of evidence from what people stated in their interviews to conclude that he does get loud and shout from time to time. I think some people just think that's him and he doesn't mean any harm by it, whilst to others he is seen as aggressive and they are upset by it; possibly those who know him less well. To others it is seen as just robust discussion."
- Dr Al-Obaidi agrees that he did shout and swear at JS and that he did make a comment to another employee that he did not trust him and had concerns about him. Thus, says Mr Ireland:
"I do find that Dr Al-Obaidi does display intimidating and/or threatening behaviour on occasions."
- He said that he felt that the claimant tried to promote an open atmosphere, but on occasions his behaviour was likely to act as a deterrent and so did not always promote the required level of openness and learning through the mortality and morbidity process. However, he said:
"I have not found evidence to support the allegation that MAO fails to support and participate in the morbidity and mortality meetings process at the Trust. However, it would seem that on a small number of occasions this has not been to the standard that would be expected of someone of his seniority."
He went on to say:
"I believe there is evidence to conclude that on occasions MAO's behaviour promotes an 'us and them' culture."
- However, when one investigates the detail of the consideration of that, one finds that the foundation for it was a situation that existed at a time when Dr Al-Obaidi was still the clinical lead in relation to the investigation of serious incidents at Frimley Park and Wexham Park, whereby no one at Wexham Park would sit on an SI panel at Frimley Park. However, as Mr Jupp submitted, this was by now wholly historical, because Dr Al-Obaidi no longer had the clinical lead. In the report, Mr Ireland states:
'MAO commented on VN's email, stating "All the SI investigations were conducted with representation of a consultant cardiologist from Frimley Park Hospital, however none of the SI investigations at Frimley Park Hospital included a member from Wexham Park". MAO stated to me that he believes that Wexham Park and Frimley Park should each have a cardiology lead and there should not be one cross-site lead. He believes that his view is well-known. One of the things that MAO has stated is that he tells it like it is and others have stated that he expresses his views strongly.
MAO had stated that "This does not support the allegation made against me of a 'them and us' culture and indeed demonstrates collaborative working and distribution of knowledge in terms of lessons being learned. Our CG (clinical governance) and M&M forums are indeed dynamic, comprehensive and inclusive and aimed at identifying mistakes, learning from them and disseminating information. This may well be unique and challenging to clinical governance officers, but usually in a positive way".'
- Mr Ireland expressed the opinion:
"However, I believe he is mistaken and comments such as the above would promote an 'us and them' culture."
- It seems to me that this portrays a different philosophy and approach to SI investigations, which was confined to the period when Dr Al-Obaidi was the clinical lead and reflected his strongly held views. But the suggestion of a 'them and us' culture is something which is really very different to that and does not necessarily mean that there would be no cross-fertilisation at all between those based on the one side and those based at the other.
- Finally, in relation to the allegation arising from the death of the patient DM, this stemmed from a stenting operation carried out by Dr Al-Obaidi's colleague, Dr Ali, which had led to a perforation and the unfortunate death of the patient the following day. An issue had arisen as to whether Dr Ali had described what had occurred as a "dissection", rather than a "perforation", and certainly Dr Ali had noted in the patient's records a dissection at some stage.
- However, Mr Ireland found in terms that Dr Al-Obaidi had not tried to support the case that it was a dissection, rather than a perforation, in any forum. Dr Al-Obaidi had told Mr Ireland that he had not heard the DM case described as anything other than a perforation and, when he learned that Dr Ali had stated to Mr Jewsbury otherwise, he had told Mr Ali to correct it.
- What Mr Ireland did find was that Dr Al-Obaidi could have been more forthright in the statement he provided in relation to this matter in relation to the size of post-dilatation balloon that had been used. In this regard, Dr Al-Obaidi had stated in his statement:
"Arguably, however, and with hindsight, the use of a 4.5mm balloon in this case could have been avoided."
- The cardiologist who had investigated this matter, Dr Gunning, has been more highly critical of Dr Ali and had stated that there was no "arguably" about it. Mr Ireland felt that Dr Al-Obaidi should have been more condemnatory of Dr Ali, rather than using expressions such as "with hindsight" and "arguably".
- There had been an exchange of documents between Dr Gunning and the claimant to Mr Ireland. It was clear that these two both highly experienced cardiologists had differing views about the appropriateness or inappropriateness of the size of balloon used. Mr Ireland was clearly unable to comment on the difference of opinion, but said:
"If Dr Gunning is correct, then MAO's comments are potentially misleading and would have been made after he knew that AO had wrongly described the DM case as a dissection in his report to the coroner."
For that reason, he found that there were concerns which meant that that allegation should continue to be investigated.
- Clearly, the dropping of four important allegations against the claimant and the dilution of the other allegations in the way that I have described made a significant difference to the position of Dr Ho in relation to the restrictions on Dr Al-Obaidi's practice.
- There is an issue as to whether, from 2 May, Dr Al-Obaidi can properly be described as remaining excluded because he remained unable to work and enter his own base at Wexham Park Hospital, or whether he was now properly described as restricted in his practice because of the way in which he was allowed to return to work, this being confined to Frimley Park Hospital for two days a week in the way in which I have described. That has implications for whether this claim in breach of contract is properly to be regarded by reference to the MHPS provisions, or by reference to the implied term of trust and confidence between the parties.
- In my judgment, it is not appropriate to describe the claimant as remaining excluded, because exclusion implies exclusion from all work and is equivalent to suspension. The only reason "exclusion" is used is in order to distinguish it from suspension, in the sense that a doctor's practice may be suspended by the General Medical Council if a complaint is made and either upheld or an interim suspension is applied. Therefore, to distinguish that form of suspension from the suspension which is applied by hospital trusts internally, the word "exclusion" is used. In so far as Dr Al-Obaidi had been suspended from all practice, that suspension had clearly been lifted when he was allowed to return.
- However, it seems to me that it remained incumbent upon Dr Ho, as part of the Trust's implied duty towards the claimant, to consider whether the terms of Mr Ireland's report meant that there remained a case for the restrictions on practice, which he had imposed before Mr Ireland's report was available.
- The effect of those restrictions should not be underestimated. For the reasons which I have already explained, they constitute not just a significant modification of the work of an interventional cardiologist in the position of Dr Al-Obaidi, but, for someone like Dr Al-Obaidi, who has practiced at such a high level for so long, to the benefit of so many patients, they are demeaning, in fact humiliating, and have an adverse effect on his mental wellbeing and his approach to his work.
- He describes his relationship with his colleagues at Wexham Park Hospital, whom he regards not just as colleagues but in very many cases as friends, as a collaborative process and he regarded himself perhaps not just a member of the Wexham Park family, but even the pater familias. For him to continue to be restricted to working at Frimley Park two days a week, without contact and collaboration with his colleagues at Wexham Park, remained a very serious restriction on his practice, which, while not amounting to exclusion, amounted and amounts to the next best thing.
- It is not clear to me that Dr Ho has taken proper account of these aspects, as well as the real concerns of patient safety and any interference with the investigatory process in considering whether it remains appropriate for Dr Al-Obaidi to be restricted in his practice in the way that he is, despite the terms of Mr Ireland's report.
- In particular, patient safety does not seem to me, in the light of Mr Ireland's report, realistically to be an issue in relation to Dr Al-Obaidi's practice as an interventional cardiologist. If anything, the findings of Mr Ireland go more to aspects of Dr Al-Obaidi's personality, which could be addressed by some form of counselling or mentoring, but, as Mr Ireland recognised, many, if not most, of Dr Al-Obaidi's colleagues at Wexham Park held him in extremely high regard. They understood and put up with his occasional outbursts and did not regard that as any kind of bar to safe practice in the department at Wexham Park.
- There was a further development in relation to the matter in August 2018. The background was that, having been served with Mr Ireland's report, which, for reasons which are not clear, was not sent to Dr Al-Obaidi for two months and was not received by him until 3 July 2018, Ms Khan wrote a further pre-action protocol letter on 12 July referring to shortcomings in the investigation report and seeking Dr Al-Obaidi's return to work at Wexham Park. By a letter of response of 20 July, Messrs Capsticks refused the request for return to work and indicated that the allegations would be clarified in the case manager's report; the case manager being, of course, Dr Ho.
- On 24 July, a further letter asserted that the continued exclusion from Wexham Park was unlawful. This was denied in a letter from the Trust's solicitors on 2 August, where they stated that the restrictions would continue until the end of the disciplinary process. However, on the same day, 2 August 2018, Dr Ho sent a further letter to Dr Al-Obaidi in the following terms:
"New relevant information has come to light since Mr Ireland investigated this concern, as part of another MHPS process. I therefore asked Mr Ireland to consider this additional information and provide an updated investigation report, either by way of an amended report or an addendum."
- This was a reference to the question of Dr Al-Obaidi's statement arising out of the death of the patient DM and, although not stated by Dr Ho in that letter, for reasons which escape me, what he was referring to was a report in relation to Dr Ali, arising from the disciplinary process against Dr Ali in relation to patient DM.
- The disciplinary panel had, on 12 July 2018, made a finding that, as a matter of fact, Dr Ali had not realised at the time of his stenting procedure that he had caused a perforation, because he had recorded it in the notes as a dissection. As part of the panel's findings, they had stated:
"We note that Dr Al-Obaidi had provided a statement to confirm that you had told him there was perforation, but there was insufficient detail given to explain when this was, where this took place and what was agreed as an action."
The panel went on to conclude:
"The panel find that, at the time of the procedure on patient DM, you thought you were dealing with a dissection and not a perforation … In the absence of any documentary evidence about the precise timing of your meeting with Dr Al-Obaidi, it is uncertain as to when or even if the discussion took place. You told the panel that you could not remember if you had spoken to Dr Al-Obaidi on the same day or on a different occasion, whereas Dr Al-Obaidi said you had spoken about both cases on the same day. Given the panel's conclusions that you did not recognise that there was a perforation, it is difficult to accept the accuracy of Dr Al-Obaidi's statement."
- It should be recorded that the disciplinary panel made these findings without hearing from Dr Al-Obaidi himself and the statement to which they were referring was a statement made by Dr Al-Obaidi in July 2017 when he had been asked to write a report on his involvement in the case of DM.
- It almost defies belief that the disciplinary panel could have made the finding that it did and had stated that it was finding it difficult to accept the accuracy of Dr Al-Obaidi's statement without hearing from Dr Al-Obaidi himself. As it turns out, had they taken the trouble to seek evidence from Dr Al-Obaidi, he would have been able to produce some powerful, in my view, corroborative documentary evidence arising from a text sent by him on 20 January 2017 to a Mr Stephen Rex, when Dr Al-Obaidi had said:
"I heard about the patient with the perforation, but I thought the patient was stable. Is this what you meant?"
- On behalf of the Trust it is asserted that the text is, on its face, ambiguous, because there had in fact been two patients with perforations on the night in question and that, therefore, this could have been a reference to either of those patients. However, the fact is that Dr Al-Obaidi says that this was in fact a reference to the patient DM and, had he been asked to do so, he would have told the disciplinary panel that that was the case and that there was no question of him not having been told by Dr Ali that it was a perforation on the night in question.
- Although, understandably, Dr Ho has referred this matter to Mr Ireland for further consideration, I do not consider that there is any realistic prospect of Mr Ireland concluding that there is a case to answer that Dr Al-Obaidi and Dr Ali have concocted the story that Dr Al-Obaidi was informed that it was a perforation. One of the reasons I say that is because of the terms of Mr Ireland's existing report. His finding on p.37 of the report was that:
"Dr Ali stated on the day of the incident he reported the patient [DM] case as a perforation. MAO states the same. Dr Ali and Dr Armin state the case was reported to the MDT and M&M meetings as a perforation. MAO states the case was reported as a perforation at those meetings. PBA states that at the MDT meeting the case was initially described as a dissection, but this is not likely to be true, as the pictures which were shown at the time were clear to all that it was a perforation. AO states that he did not ask MAO to cover for him and that he only saw MAO's statement much later, after his representative had requested it. Thus, I do not believe that MAO tried to support the case that it was a dissection in any meeting and I do not feel that he has tried to state that the procedure was a dissection."
- Thus, in relation to this particular issue, Mr Ireland's findings were forthright and robust. It is difficult to see how he is likely to change his view about that in the light of a disciplinary panel's findings which were so flawed in the way that I have described.
- Nevertheless, Mr Cheetham QC, who appears for the Trust, relies strongly on this modification to the investigatory process as justifying the continued restriction on Dr Al-Obaidi's practice.
- For the claimant, Mr Jupp argues firstly that the position of Dr Al-Obaidi should be regarded as a continuing exclusion, but that, even if he is wrong about that, the conditions which are applied to Dr Al-Obaidi's practice still have to be conditions which are reasonably justified. He submits that imposing unjustified conditions requiring a senior clinician to work part-time in a limited capacity and a different place of work, and excluding him from his office and from interacting with colleagues of longstanding, plainly amount to a breach of the implied term of trust and confidence, which applies to any contract of the kind between this claimant and this defendant. He submits that by doing so the employer is, without reasonable and proper excuse, conducting itself so as to destroy or seriously damage the relationship of trust and confidence between the employer and the employee.
- He argues that there is no cogent or logical reason for the continuing restriction on Dr Al-Obaidi's practice and that the Trust's position that those restrictions are to continue until the disciplinary hearing as practiced raises an inference that the Trust is treating the claimant's position as a disciplinary sanction.
- He addresses the legal position by reference to the test set out in American Cyanamid Co v Ethicom Ltd  AC 396, asking the court to consider three questions: (1) is there a serious issue to be tried?; (2) are damages an adequate remedy?; and (3) the balance of convenience.
- He refers to the decision in Mezey v South West London and St George's Mental Health NHS Trust  EWCA Civ 106 in support of the contention that the court will intervene and grant an interim injunction to require a hospital to lift an exclusion in an appropriate case. In my judgment, that equally applies to restrictions on practice of the kind which have been imposed in this case and are not confined to exclusions.
- He submits that there is an implied term of the contract that the employer will not behave in a way such as seriously to undermine the relationship of trust and confidence without reasonable and proper excuse (Malik v BCCI  AC 20) and that where there is a discretion there is an implied term that the discretion will be exercised reasonably, genuinely and rationally, and not capriciously, referring to Braganza v BP Shipping Limited  ICR 449 at paragraphs 30 and 42.
- He submits that there is a serious issue to be tried, namely breach of contract and the implied term of trust and confidence. He says that it is not suggested that damages would be an adequate remedy in this case and he addresses the balance of convenience on the basis that his client is demoralised and isolated at Frimley Park, that there is no justification for the continuing restrictions on his practice by reference to the exclusion of him from his own hospital, Wexham Park, with the effect on his wellbeing and professional reputation. He submits that there is no adequate basis upon which those restrictions either should have been imposed in the first place, or should continue to be imposed in the light of Mr Ireland's report.
- For the Trust, Mr Cheetham QC refers me to the statement of Dr Ho, which has been submitted by the defendant to resist this application. He refers in particular to paragraph 65 in the summary at the end of that report, where Dr Ho says:
"There is also already evidence to substantiate a concern that the claimant, because of his behaviour, has created an 'us and them' culture, displayed intimidating and threatening behaviour and provided a misleading account of the management of a patient. In relation to the latter, there is already evidence of this, but further enquiries are to explore this further. As one of the most senior cardiologists on the Wexham Park site [I interpose that he is there referring to Dr Al-Obaidi] I need to have absolute confidence that the claimant can work effectively in a team and be a role model for more junior staff. If these concerns are well-founded, we would need to look carefully at how he is managed back into the team to ensure that service delivery, patient safety and the wellbeing of other staff is not compromised. In the interim, the claimant needs to remain at Frimley Park where he can be appropriately supervised."
He goes on to say:
"I cannot allow the claimant to work largely unsupervised when there is a genuine concern that he has been involved in attempting to cover up another consultant's serious clinical mistakes. There is simply no one of sufficient seniority at Wexham Park regularly enough to ensure that the appropriate safeguards are in place and, for the reasons set out above, I cannot move someone from the Frimley Park site."
- In answer to this statement, Dr Al-Obaidi has put in a second statement in which he has addressed the issue of supervision. At paragraph 11, he states as follows:
"I note reference to the requirement for supervision in the final paragraph of Dr Ho's statement. I do not know what is meant by "supervision" in this context. There are no clinical concerns about me. I am not supervised at all in my clinical work at Frimley, neither am I escorted around Frimley Hospital. I also note the reference to supervision in paragraph 55 of Dr Ho's statement. The clinical lead is only rarely present on Friday, when I attend Frimley. He does not supervise me. Dr Ho also misrepresents in this paragraph my involvement with patients before and after surgery. I am based at the Cath Lab at Frimley. I meet the patient when he or she comes into the room next to the lab – the recovery bay. I obtain their consent if necessary. About half of the patients I see in the recovery bay, before their operation, and the other half I see for the first time in the lab. After surgery, the patient is removed to the recovery bay. After this, the patient is either discharged or sent to a ward. I do not see the patient after this. I do not undertake outpatient follow-up."
He goes on to say:
"I am disturbed about the picture that Dr Ho seeks to paint of me. Until I ceased to be clinical lead, I led the Wexham team successfully. There were no complaints about my performance or my interactions with staff. The staff at Wexham I count as my friends and close colleagues. As the senior consultant, I was on hand to answer questions and was a sounding board for junior colleagues. I see nothing in Dr Ho's statement which justifies removing me from Wexham and from my office facilities there."
- Nevertheless, Mr Cheetham submits that the Trust, through Dr Ho, has acted reasonably in replacing the initial exclusion with restrictions and in maintaining those restrictions. He submits that there remains in the Trust a broad discretion in these matters and mere criticism of Dr Ho cannot be equated to irrationality. He points out that the restrictions have been in place for some months and, as it is to be anticipated that the disciplinary process will be concluded in the reasonable near future, it is appropriate for the status quo to be left in place.
- He invites the court to consider the issue of rationality to which this application has effectively reduced itself and to consider that, on the basis of Dr Ho's evidence as contained at paragraph 65 onwards of his statement, the position of the defendant is a rational one.
- In my judgment, the position of the defendant Trust in this case is characterised by a failure on the part of Dr Ho at various times properly to address the issues which he needed to address in order to make rational decisions in relation to Dr Al-Obaidi. That started with the decision to exclude Dr Al-Obaidi, a course of action which is a nuclear weapon in the armoury of a Trust, and, therefore, only to be used in the most serious and extreme cases. The fact that the Trust was able to agree to Dr Al-Obaidi returning to work on 2 May with restrictions of practice, before there had been any report from Mr Ireland at all, shows that, in reality, the decision to exclude was never properly justified.
- The only matter which has troubled me is whether the Trust could properly have considered that there was a real danger of interference with the investigatory process by reason of the suborning or interference with witnesses before they had been interviewed by Mr Ireland. However, it seems to me that this was, in reality, fanciful. Dr Al-Obaidi, with his experience and reputation and position in the Trust, and as lead clinician over the years that he practiced until October 2017, was somebody whom the Trust could trust to conduct himself properly and abide by any undertaking on his part not to speak to potential witnesses. Had he done so, it would have been readily ascertainable by the Trust, because the Trust would have been told that that had happened by the witnesses themselves. He was never given the opportunity to demonstrate his trustworthiness in that regard. Instead, this extreme option was used, when, in reality, as it seems to me, it was unnecessary, even on the basis of the allegations as they were originally thought to be.
- The position then changed significantly with Mr Ireland's report, when, as I have stated, such allegations as remained were significantly watered down and did not amount to gross misconduct or even, in my view, misconduct. The Trust certainly recognised that they no longer amounted to gross misconduct, because they informed Dr Al-Obaidi that that was the case and thus indicated that dismissal was no longer a potential option in his case. As Mr Jupp has submitted, it is thus almost inevitable that Dr Al-Obaidi will be returning to work at Wexham Park at the end of this disciplinary process.
- In those circumstances, what was required was a very careful consideration by Dr Ho of whether the restrictions of practice in existence really remained necessary in the light of the findings of Mr Ireland, or whether any ongoing concerns could be sufficiently addressed through consent and agreement with Dr Al-Obaidi returning to Wexham Park.
- It seems to me that Dr Ho's statement does not begin to justify the continued restrictions on Dr Al-Obaidi's practice, which were put in place on 2 May 2018, when the full panoply of allegations remained in existence. This is no longer a case of gross misconduct and, as such, any disciplinary process, as it seems to me, on the basis of the evidence I have seen, will result in nothing more than possible advice, mentoring or counselling. There may even be a warning, but nothing which would justify a doctor of his repute and with his record continuing to be restricted from practicing medicine at Wexham Park Hospital.
- Finally, I address the question of whether the position of the Trust is, fortuitously, as it were, saved by the development in August 2018 with the report of the disciplinary panel, which looked into the position of Dr Ali. For the reasons which I have already explained, in my judgment there is no realistic prospect of, firstly, Mr Ireland changing his mind fundamentally, given the findings that he has already made, and, therefore, secondly, of the disciplinary process leading to a finding of severe dishonesty on the part of Dr Al-Obaidi, which the findings of the disciplinary panel would imply. As I have stated, the findings were made without even the disciplinary panel taking the trouble to hear from Dr Al-Obaidi himself or ask whether he had any further documentary evidence which would support his position in relation to what happened over patient DM.
- Therefore, I do not consider that the development arising from the disciplinary tribunal of 12 July materially affects the position as it was thought to be before 2 August 2018.
- In all the circumstances, it has become clear to me as this hearing has gone on that if I allow the status quo to continue there will be a continuing severe injustice to Dr Al-Obaidi, which is not merited. I find the position of Dr Ho to be irrational in the public law sense and I grant the injunction which has been sought.
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