Ardron v Sussex Partnership NHS Foundation Trust

In deciding whether an employer may refer alleged misconduct by a doctor to a disciplinary panel, the court asks whether the investigated facts, taken at their highest, are capable of supporting gross misconduct. Gross misconduct ordinarily requires conduct amounting to a repudiatory breach of contract. Very considerable negligence may satisfy that threshold. Related failures may be assessed cumulatively, particularly where they concern patient care over a sustained period. Mitigation and disputed factual issues ordinarily belong to the disciplinary panel, not the court. The court should avoid micro-managing the disciplinary process. A case manager may characterise conduct as gross or wilful even if the investigator did not use those terms, provided the proposed allegations are grounded in the investigation and supporting materials.

The claimant, an experienced consultant psychiatrist, sought a permanent injunction preventing her NHS employer from pursuing disciplinary proceedings alleging gross misconduct. The allegations concerned her care and record-keeping in relation to a young prisoner who later committed suicide, together with alleged failures to attend ward rounds. An interim injunction had previously restrained the disciplinary hearing.

The claimant argued that the investigation disclosed, at most, ordinary negligence or inadvertent professional failings, and that the case manager had relied on matters outside the investigation. The central issues were whether the evidence was capable of supporting gross negligence, breach of trust and confidence or wilful breach of professional codes, and whether the proposed proceedings breached the employment contract.

1. Applicable threshold. The court held that the relevant question was whether the findings and evidence in the investigator’s report, taken at their highest, were capable of supporting a charge of gross misconduct. This was an issue of law, not a public-law review of the case manager’s decision. The case manager was entitled to assess the evidence and decide whether the conduct was sufficiently serious to go to a panel, even though the investigator had not used the expressions gross negligence or wilful breach.
2. Gross negligence. Gross misconduct in employment ordinarily connotes misconduct justifying summary dismissal and therefore amounting to a repudiatory breach of contract. There is no fixed definition, but very considerable negligence may qualify. The alleged failures here concerned a vulnerable patient over approximately 12 weeks and included inadequate assessment, failure to prescribe treatment, failure to plan care, inadequate risk management, poor clinical records and failures to document reviews and discussions. Taken cumulatively and in their interrelated context, they constituted a sufficient case of gross negligence for consideration by a disciplinary panel.
3. Evidence and mitigation. The court rejected an approach requiring each alleged failing to be considered in isolation. It also rejected the submission that the case was merely about record-keeping. Proper records could materially affect continuing patient care and clinical decision-making. Context, mitigation and disputed factual issues did not make the proceedings unlawful; those matters were for the panel. The court should not resolve such disputes or micro-manage the disciplinary process.
4. Other allegations. There was also a sufficient case concerning the implied term of trust and confidence, applying the test in Mahmud v Bank of Credit and Commerce International SA [1998] AC 20. The case of wilful breach appeared weaker, and inadvertent negligence seemed more probable, but the possibility of an inference of deliberate breach could not be excluded.
5. Ward rounds and procedure. The investigator’s findings disclosed a prima facie case of non-attendance at five ward reviews. The case manager was entitled to proceed on that basis, subject to the claimant’s opportunity to rebut it before the panel. Minor irregularities or later clarification of particular dates did not justify injunctive relief.
6. The claim for a final injunction was dismissed. The interim injunction granted on 18 June 2018 was not continued.