Chakrabarty v Ipswich Hospital NHS Trust & Anor

Under the Maintaining High Professional Standards in the Modern NHS framework, referral to the NCAS is mandatory where local action is impracticable. The NCAS must consider whether an assessment should be undertaken, but it need not conduct an assessment or provide an action plan. A capability hearing may proceed where the NCAS declines assessment, where no agreed action plan is practicable, or where a rational dispute about capability or remediation remains. An NCAS opinion that remediation has no realistic prospect of success is not a universal precondition to a capability hearing. Nor is an employer generally required to await the outcome of GMC fitness-to-practise proceedings. The employer must, however, act rationally, consistently with contractual obligations, and in accordance with the framework.

The claimant, a consultant cardiologist and general physician employed by the Trust, sought a permanent injunction preventing the Trust from convening a capability hearing. The Trust relied on internal investigation reports, a GMC performance assessment and NCAS advice concerning his capability and possible remediation. The claimant argued that a capability hearing was unlawful because the NCAS had not assessed him and advised that remediation had no realistic prospect of success. Alternatively, he argued that the Trust should await the conclusion of GMC proceedings before considering the GMC assessment. The central issues were the proper construction of paragraphs 14 and 15 of part IV of MHPS and whether the proposed hearing would breach express or implied contractual obligations.

1. The claim was dismissed. The Trust was entitled to convene a capability hearing under MHPS and was not required to await the outcome of the MPTS proceedings.
2. Paragraphs 14 and 15 of part IV of MHPS were apt for incorporation into the claimant’s contract. They imposed legally binding safeguards at the pre-hearing stage. Paragraph 17, concerning postponements and detailed hearing management, was advisory and not contractually enforceable.
3. Paragraphs 14 and 15 had to be read disjunctively and purposively. Where local action was impracticable, the Trust had to refer the matter to the NCAS for consideration of whether an assessment should be undertaken. That obligation did not require the NCAS to conduct an assessment.
4. The NCAS could decline an assessment where its statutory criteria were not met or where an assessment would add nothing material. Its role was advisory. It could assist with an action plan, but could not impose one. The responsibility for deciding whether remediation was practicable remained with the Trust, subject to rationality and contractual obligations.
5. Paragraph 15 applied where an assessment had been undertaken and had identified lack of capability. The provision that a capability hearing might follow advice that performance was fundamentally flawed and irremediable described one route to a hearing, not the only route. A hearing could also be convened where no assessment or action plan was possible, or where a genuine and rational dispute remained unresolved.
6. The court respectfully disagreed with the contrary construction in Lim v Royal Wolverhampton Hospitals NHS Trust [2011] EWHC 2178. The approach in Mezey v South West London & St George’s Mental Health NHS Trust [2010] EWCA Civ 293 did not determine the issue.
7. There was no promise that the Trust would await the GMC or MPTS outcome. MHPS expressly addressed the interaction with criminal proceedings but contained no equivalent requirement concerning GMC proceedings. The claimant could challenge the GMC assessment before the capability panel, which could itself consider an adjournment.
8. The Trust’s decision was not irrational, capricious, or a breach of trust and confidence. The evidence established a serious and apparently intractable dispute about the claimant’s capability, and the case manager had a proper basis for concluding that the threshold for a capability hearing was met.

First-instance decision. The judgment does not state any prior appellate decision in this litigation.