Al-Obaidi v Frimley Health NHS foundation trusT

An employer’s exclusion or restriction of a medical practitioner must remain rationally justified throughout the relevant investigation and disciplinary process. Exclusion is an exceptional measure, suitable only in the most serious and extreme cases, principally to protect patients or the integrity of an investigation. Once the investigation materially reduces or weakens the allegations, the employer must reconsider whether restrictions remain necessary. A restriction which substantially affects professional practice requires reasonable and proper justification and must take account of its effect on the practitioner. The court may grant an interim injunction requiring a hospital to lift unjustified restrictions on practice, as well as an exclusion.

The claimant, a consultant cardiologist, applied for an injunction requiring his NHS employer to permit him to return to full-time work at Wexham Park Hospital. He had initially been excluded while allegations concerning patient safety, professional conduct and interference with an investigation were examined.

The investigation dismissed or materially weakened most allegations. The Trust nevertheless continued to restrict the claimant to limited work at another hospital. The central issues were whether the claimant remained excluded, whether the continuing restrictions were rationally justified, and whether an injunction should be granted.

1. The application was granted and an injunction was issued requiring the Trust to lift the restrictions on the claimant’s practice. The court held that the position of the Trust was irrational in the public law sense.
2. Exclusion implies exclusion from all work and is equivalent to suspension. Once the claimant was permitted to return to limited work, he was no longer excluded, although his practice remained restricted. The distinction did not remove the Trust’s obligation to justify the restrictions.
3. The Trust’s implied duty required Dr Ho to reconsider whether the restrictions remained necessary in light of the investigation report. The report had dismissed four allegations and substantially diluted those which remained. Patient safety was not realistically in issue in the claimant’s clinical practice, and any concerns about his behaviour could potentially be addressed through counselling, mentoring or similar measures.
4. Exclusion is a serious and exceptional measure, described as a nuclear option to be used only in the most serious and extreme cases. A concern about interference with witnesses could have been addressed by an undertaking not to contact them, rather than by imposing exclusion without giving the claimant that opportunity.
5. The court confirmed that the power to grant an interim injunction requiring a hospital to lift an exclusion, recognised in Mezey v South West London and St George’s Mental Health NHS Trust [2007] EWCA Civ 106, equally applied to unjustified restrictions on practice.
6. The later disciplinary findings concerning another doctor did not materially alter the position. They had been made without hearing from the claimant and did not realistically justify continued restrictions.