Saeed v Royal Wolverhampton Hospitals NHS Trust

Whether an employer must use an independent medical disciplinary procedure is a matter of contract. The employer chooses the procedure, but must construe and apply the contractual categories correctly. The court determines compliance by construing the contract and applying it to the facts, rather than applying a public-law threshold of unreasonableness. Professional conduct means performance or behaviour arising from the exercise of medical skills. A clinical setting alone is insufficient. Where the allegation plainly has no connection with medical skills, the ordinary disciplinary procedure may be used. Where the position is doubtful, or personal and professional conduct overlap, the professional route should be used, particularly where a genuine clinical justification is advanced.

The appellant doctor was employed by the respondent NHS Trust. A patient complained about his conduct during an examination for a finger injury. The Trust ultimately treated the matter as personal conduct and used its ordinary internal disciplinary procedure rather than the independent procedure applicable to professional conduct or competence.

The contract incorporated the Trust’s disciplinary policy and referred to HC(90)9. The doctor sought interim relief, which Gage J refused, and the disciplinary hearing proceeded, resulting in his dismissal. His appeal sought damages for breach of contract. The central issues were who determined the applicable category and whether the allegation concerned professional conduct, as reported at [2000] Lloyd's Rep Med 331.

1. Appeal dismissed with costs. Lady Justice Hale gave the judgment. Lord Justice Potter and the President, Dame Elizabeth Butler-Sloss, agreed.
2. The dispute was contractual, not a public-law review of an employer’s decision. The employer had to choose the procedure, but had to do so in accordance with the contract. The court’s task was to construe the contractual terms and apply them to the facts. The court rejected the approach that intervention was permissible only for bad faith, perversity or a decision which no reasonable Trust could have made.
3. Paragraph 1.3 of the disciplinary policy was expressly incorporated into the contract. HC(90)9 was expressly referred to and supplied the definitions of professional conduct and professional competence. Those definitions were therefore incorporated by reference, and the employer would be in breach of contract if they were not properly applied.
4. The relevant contractual question concerned the nature of the allegation. Professional conduct meant performance or behaviour arising from the exercise of medical skills. The court rejected both the narrow litmus test adopted by Lightman J in Kramer v South Bedfordshire Community Health Care Trust and Chatterjee v City and Hackney Community Services NHS Trust, and the very wide test adopted by Bell J in Bhanot v South West London and St George's Mental Health NHS Trust. No separate litmus test should replace the contractual definition.
5. On the facts, the allegation could not arise from the exercise of medical skills. The conduct alleged concerned touching the patient’s breasts and stomach during an examination for a finger injury. The clinical setting did not alter that conclusion. The Trust was therefore entitled to treat the allegation as outside professional conduct and to use the ordinary disciplinary procedure.
6. The court added practical guidance. If the position is doubtful, the professional conduct route is advisable. Where personal and professional conduct overlap, that route must be used. If the doctor asserts a valid clinical reason for the conduct, the professional route should be adopted unless the assertion is so outlandish that it can confidently be ignored.

• Court of Appeal (Civil Division) The court dismissed the appeal with costs. Hale LJ gave the judgment, with Potter LJ and Butler-Sloss P agreeing: [2000] EWCA Civ 342.
• Queen’s Bench Division Gage J refused interlocutory relief and adopted the view that the Trust’s categorisation could be challenged only if no reasonable Trust could have reached it. The decision was reported at [2000] Lloyd's Rep Med 331.