Loizou, R (on the application of) v Mid-Yorkshire Hospitals NHS Trust

Judicial review will not ordinarily be used to prevent disciplinary proceedings from reaching the tribunal responsible for deciding whether charges are made out. The appropriate forum is generally the disciplinary hearing, unless there is a fundamental procedural flaw or the proceedings are so plainly brought in bad faith that intervention is justified. A dispute about employment terms or job planning does not, without more, amount to misconduct. Dishonesty, disobedience of a clear instruction or other discreditable conduct may take the matter into disciplinary territory. When extending time, the court may weigh the importance and wider applicability of the issue, the desirability of determining related issues together and actual prejudice, even where the delay has no good explanation.

Two doctors challenged disciplinary procedures brought under the Department of Health’s Maintaining High Professional Standards in the Modern NHS procedures. Dr Loizou sought permission to challenge the decision to refer allegations to a professional conduct panel and separately challenged the proposed panel’s composition. Mr Puri sought permission to challenge the composition of his original disciplinary panel after his dismissal and the composition of his appeal panel.

Treacy J had refused permission on the challenges to the underlying disciplinary decisions but granted permission on the panel-composition issues. The renewed applications concerned whether permission should be granted on the remaining issues and whether time should be extended for Mr Puri’s challenge to the original panel.

1. Dr Loizou’s renewed application. Permission to challenge the decision initiating disciplinary proceedings was not granted, but the issue was adjourned until after the disciplinary proceedings. The court considered that the decision was probably not amenable to judicial review because it had no public law element. Even if judicial review were available under CPR 54, or transfer to the Queen’s Bench Division were appropriate under CPR 54.20, it would generally be wrong to determine whether charges were well founded before the disciplinary hearing.
2. The disciplinary tribunal was ordinarily the primary forum for deciding whether charges were justified. Judicial review may intervene where there is a fundamental procedural flaw, as illustrated by Mezey v South West London & St George’s Mental Health NHS Trust [2010] IRLR 512, or where proceedings are so patently brought in bad faith that the court should prevent them proceeding. The allegations in this case required a full trial and did not meet that threshold. The possibility that a fair panel might dismiss the charges was not a reason to intervene before the hearing.
3. The court accepted that it was arguable that NCAS had to be involved even in a pure misconduct case, but held that the Trust had in any event satisfied any such obligation. NCAS had been consulted and had indicated that matters of pure conduct could proceed through the disciplinary procedure.
4. The judge expressed a provisional concern that an openly maintained dispute about job planning or terms and conditions might have been treated as misconduct when, without dishonesty, disobedience of a clear instruction or other discreditable conduct, it would not necessarily be disciplinary. That observation was left for the disciplinary panel and was not a determination of the merits.
5. Mr Puri’s application. Time was extended under CPR 3.1(2)(a), and permission was granted to challenge the composition of the original disciplinary panel. Although the delay had no good explanation and was aggravated by further delay, the issue was important and potentially applicable to NHS disciplinary proceedings generally. It was desirable that the court consider panel composition at both first instance and appeal stages. The specific prejudice relied on by the Trust did not outweigh that consideration.

First-instance judicial review and permission decision. The judgment records that Treacy J considered both claims on the papers on 17 May 2010, refusing permission on the underlying disciplinary decisions but granting permission on panel composition.