Fynes v St George's Hospital NHS Trust

Where a medical practitioner is subject to concerns potentially involving conduct, capability and ill health, the contractual status and scope of the employer’s local procedure must be determined by construction. Guidance is not necessarily incorporated merely because it underpins that procedure. The court decides the proper classification of the allegations, although it should be slow to interfere with an experienced case manager’s assessment. Allegations may properly proceed as conduct matters where the evidence raises a prima facie issue of fault, even though ill health may explain or mitigate the conduct. A conduct hearing can consider the contribution of ill health and receive appropriate medical evidence. An injunction is inappropriate where the employer has followed the contractual procedure and the classification is reasonably open on the evidence.

The claimant, a consultant urogynaecologist employed by the defendant NHS Trust, sought declaratory and injunctive relief preventing a disciplinary hearing. Six allegations concerned patient care, professional conduct and the handling of private patients. The claimant contended that the allegations were health matters, or a mixture of health and capability, requiring the capability protections in the Trust’s Medical Staff Procedure and the guidance Maintaining High Professional Standards in the Modern NHS.

The Trust classified the allegations as misconduct after investigation and consideration of occupational-health and psychiatric evidence. The central issues were whether the relevant procedures formed part of the contract, who should determine the classification, and whether the proposed conduct hearing breached the claimant’s contractual rights.

1. Contractual status. Maintaining High Professional Standards in the Modern NHS was not incorporated into the claimant’s contract and was not an implied term. The Trust’s own Medical Staff Procedure, however, or at least the provisions relevant to the case, was incorporated. The court applied the approach in Hussain v Surrey and Sussex Healthcare NHS Trust [2012] Med LR 163. Detailed procedural guidance may remain non-contractual where incorporation would require judicial micro-management.
2. Classification. The court decides whether the allegations are matters of conduct, capability or health. It should nevertheless be slow to interfere with an experienced case manager’s classification: Mattu v University Hospitals Coventry and Warwickshire NHS Trust [2013] ICR 270. The discretion to determine the appropriate route where conduct and capability overlap is concerned with what is appropriate in the circumstances, as explained in West London Mental Health NHS Trust v Chhabra [2013] EKSC 80.
3. Each of the six allegations disclosed material capable of amounting to misconduct under the Medical Staff Procedure. The claimant’s evidence concerning depression, impaired cognition, sleep deprivation and anxiety could be advanced at the disciplinary hearing as explanation or mitigation. It did not make it necessary to classify the allegations solely as health matters or as capability matters.
4. The proposed hearing included safeguards addressing the health issues, including psychiatric advice, the ability to call the treating psychiatrist and the availability of occupational-health evidence. There was no breach of contract. The claim and application for declaratory and injunctive relief were dismissed. The claimant was ordered to pay the defendant’s costs on the standard basis, subject to detailed assessment if not agreed. Permission to appeal was refused.

This was a first-instance decision. No appellate history is stated in the judgment.