Sasha Burn v Alder Hey Children's NHS Foundation Trust

A contractual right for a medical practitioner to see correspondence relating to an investigation does not create a general disclosure obligation. In the context of a preliminary disciplinary investigation, it covers correspondence generated by the formal investigatory process in which the practitioner has a legitimate interest.

The practitioner must nevertheless receive a fair opportunity to give their account. This necessarily requires disclosure of documents which they fairly need for that purpose, assessed in the circumstances of the particular case. That fairness requirement does not require wholesale disclosure of all material assembled for, or connected with, the investigation.

The appellant was a consultant paediatric neurosurgeon. Her NHS Trust began a formal investigation under its contractual policy into her clinical decision-making following the death of a child. She was restricted from clinical duties while the investigation was pending.

The Case Investigator listed documents seen in preparing for an interview. The Trust supplied most requested material, but withheld certain root-cause-analysis statements and letters to the child’s parents because consent for disclosure had not been obtained.

The appellant sought injunctions and a declaration that paragraph 1.16 of the policy entitled her to all documents relating to the investigation. Thornton J dismissed the claim in [2021] EWHC 1474 (QB). The central issue on appeal was the scope of the entitlement to see correspondence relating to the case.

1. Appeal dismissed. Paragraph 1.16 did not oblige the Trust to disclose all documents relating to the investigation or its subject matter. Its reference to correspondence retained its ordinary meaning of communications sent between persons. It did not include root-cause-analysis statements.
2. Read in context, correspondence relating to the case meant correspondence generated by the formal investigatory process which the practitioner had a legitimate interest in seeing. The provision was paired with the right to receive a list of intended interviewees and to give an account. It therefore conferred limited, high-level procedural rights rather than continuing full documentary disclosure.
3. The investigation was preliminary. It enabled the Case Manager to decide whether there should be a later formal process, where disputed facts would be addressed openly. A general disclosure duty would unduly formalise and delay a process whose conduct was entrusted to the Case Investigator and intended to be completed promptly.
4. Fairness may nevertheless require the Case Investigator to show the practitioner documents which they fairly need in order to put their version of events. That obligation arises from the requirement to afford that opportunity and is fact-sensitive. It did not require disclosure of the withheld statements or letters in this case; if a point in a statement required a response, its substance could be put to the practitioner without providing the document.
5. It was unnecessary to decide whether the Case Investigator had a reviewable discretion to determine relevance. Singh LJ, with whom Underhill LJ agreed on this point, added obiter that it remains open whether procedural fairness in a disciplinary process is implied independently of the mutual duty of trust and confidence. No general substantive fairness term is implied into employment contracts.

The stay of the High Court order was lifted. The appellant was ordered to pay the respondent’s appeal costs, with an interim payment of £25,000.

• Court of Appeal (Civil Division): Dismissed the practitioner’s appeal in [2021] EWCA Civ 1791.
• High Court, Queen’s Bench Division: Thornton J dismissed the claim for injunctive and declaratory relief in [2021] EWHC 1474 (QB).