Mezey v South West London & St George's Mental Health NHS Trust

A contractual capability procedure may be invoked only where an inadequate standard of care results from lack of knowledge, lack of ability, or consistently poor performance, so that the practitioner’s capability to practise is genuinely in question. A single clinical error does not meet that threshold where the investigation confirms the practitioner’s competence, insight and absence of future risk.

The procedure is directed to remedial improvement, ordinarily with National Clinical Assessment Authority involvement. An employer acts in breach of contract by convening a capability hearing when its own investigative findings provide no basis for a capability issue.

Dr Mezey, a consultant forensic psychiatrist employed by the Trust, was investigated after a former patient absconded from hospital and killed a member of the public. A panel convened under HC(90)9 found that her decision to permit unescorted leave without a personal assessment was inappropriate. It found no serious professional incompetence, however, and described her as a competent and conscientious practitioner who had learned from the incident.

The Trust proposed a disciplinary hearing under Part IV of the Maintaining High Professional Standards in the Modern NHS framework (MHPS). Underhill J restrained it from doing so. The Trust appealed. The central issue was whether the Francis Report gave the Trust a contractual entitlement to convene a capability hearing or impose a disciplinary sanction.

1. Appeal dismissed unanimously. Ward LJ, with whom Wilson and Toulson LJJ agreed, held that the proposed capability hearing would breach the contractual procedure. The injunction was therefore rightly granted.

2. The applicable arrangements formed a hybrid. The Francis inquiry had been instituted under HC(90)9, for which a finding that the practitioner was “at fault” was the gateway to further action. “Fault” meant fault of any degree, not only serious fault. The panel’s adverse finding therefore satisfied that earlier gateway.

3. By the time that further action was contemplated, however, MHPS Part IV was the agreed contractual basis for a hearing and sanctions. Part IV concerns a clear failure to provide an adequate standard of care through lack of knowledge, ability or consistently poor performance. Its focus is whether the doctor’s capability to practise is in question. That is the threshold for invoking the capability procedure.

4. The Francis Report precluded that conclusion. Although it established an inappropriate clinical decision, it also found that Dr Mezey was competent, conscientious and insightful; the mistake might have been made by others; and it gave no cause for concern that she would endanger patients or the public in future. The finding of negligence did not itself demonstrate defective capability.

5. Part IV aims to improve practice through assessment and remedial action, with National Clinical Assessment Authority advice before a capability panel. The Trust treated the detailed Francis Report as serving the practical function of such advice and relied on no further material. On that material, there was no basis consistent with the purpose of Part IV for a capability hearing. It was unnecessary to determine whether a separate power to reprimand could otherwise be implied.

• Court of Appeal (Civil Division) Dismissed the Trust’s appeal and upheld the injunction: [2010] EWCA Civ 293.
• Queen’s Bench Division Underhill J, on 5 December 2008, restrained the Trust from holding disciplinary proceedings based on the Francis Report.