Al-Mishlab v Milton Keynes Hospital NHS Foundation Trust

Where a contractual NHS policy governs exclusion from work, the employer has a discretionary power subject to contractual safeguards, including necessity, consideration of alternatives and regular review. The court reviews evaluative decisions on a Wednesbury basis, while deciding hard-edged factual questions itself. Patient safety takes precedence where the interests of patients and practitioner conflict. Serious concerns about a surgeon’s clinical judgment, insight and ability to work with colleagues may justify exclusion from all surgery, even where the original investigation concerned only a particular type of surgery. A prolonged exclusion may remain lawful where workplace relationships have broken down and no suitable supervisor is available.

The claimant, a consultant colorectal and general surgeon, claimed that his employer had excluded him from clinical work in breach of contract. He sought a declaration, an injunction requiring his return to clinical practice and damages for lost private income. His exclusion began in March 2011 after a review by the Royal College of Surgeons raised concerns about clinical judgment, recognition of complications, willingness to accept advice and insight.

The claimant argued that the exclusion was too wide, that alternatives had not been properly considered, that its continuation was unjustified and that he should return to work at the Trust. The central issues were the contractual effect of Maintaining High Professional Standards in the Modern NHS and the proper standard for reviewing the Trust’s decisions.

1. Applicable contractual framework. Part II of Maintaining High Professional Standards in the Modern NHS was incorporated into the claimant’s contract. It conferred a discretionary power to exclude, subject to contractual fetters including necessity, exceptional circumstances, consideration of alternatives, procedural safeguards and regular review. Patient safety took precedence where a balance was required.
2. Standard of review. The exercise of the discretionary power was reviewable on a Wednesbury basis. The court would not substitute its own view for the Trust’s evaluative judgment about necessity, alternatives or workplace risks. Hard-edged questions of fact remained for the court. The Trust was not required to conduct an adjudicative process, but it had to provide evidence capable of supporting its evaluative decisions.
3. Initial exclusion. The Trust was entitled to rely on the expert concerns expressed by the Royal College of Surgeons without independently re-investigating that review. Concerns about clinical judgment, insight and acceptance of advice were capable of applying to all surgery, not merely major colorectal surgery. Exclusion from all surgery was therefore within the range of reasonable responses and, if necessary, the Trust had no realistic alternative.
4. Alternatives and continuation. It was reasonable to conclude that attendance at morbidity and mortality meetings or clinical audit could inhibit colleagues or require the exercise of clinical judgment. The Trust was also entitled to restrict access to clinical records. Although MHPS was not followed in every procedural detail, those breaches did not cause the claimant’s exclusion. Continued expert investigation, assessment and attempts to secure an external placement were reasonable.
5. Current position and remedy. The breakdown in relationships with key members of the colorectal team, together with the absence of a suitable and willing consultant supervisor, made continued exclusion necessary and lawful. The claim was dismissed. Even had there been a breach, an injunction would not have been granted because the court could not sensibly manage the claimant’s future employment or compel damaged working relationships.

Not an appeal. The judgment records no prior appellate decision.