Gupta v Northampton Hospital NHS Trust

On an application for an interim injunction challenging a medical practitioner’s exclusion from work, the court applied the three-stage test in American Cyanamid v Ethicon Ltd [1975] AC 396. The claimant had to show a serious issue to be tried, and the court would not resolve disputed facts or substitute its judgment for the contractually authorised decision-maker. A discretionary exclusion power must be exercised rationally, in good faith, with relevant matters considered and irrelevant matters excluded. Protection from financial abuse and prevention of interference with an investigation could justify immediate exclusion. The employer was also entitled, acting rationally and in good faith, to share relevant information with other healthcare providers. The injunction was refused.

The claimant was a consultant oncologist employed by the defendant NHS trust. He was excluded from work on full pay pending investigations into alleged irregularities concerning additional-hours payments, the procurement of private patients from NHS practice, private work during NHS time and alleged financial abuse of patients.

He sought interim mandatory relief requiring reinstatement and a prohibitory injunction preventing the trust from contacting private providers or sharing information about him. He alleged breach of contract, breach of the implied term of trust and confidence, procedural unfairness and interference with his rights under Article 1 of Protocol 1 to the European Convention on Human Rights. The central issues were whether there was a serious issue to be tried and, if so, whether interim relief should be granted.

1. Application refused. The claimant had not established a serious issue to be tried, so it was unnecessary to determine the balance of convenience.
2. The court applied the three-stage approach in American Cyanamid v Ethicon Ltd [1975] AC 396. At this stage the court should not resolve contested evidence or determine difficult questions of law requiring detailed consideration.
3. Following the approach in Braganza v BP Shipping Ltd [2015] UKSC 17, a contractual discretion affecting both parties’ rights must be exercised in good faith and rationally. The decision-maker must consider relevant matters, disregard irrelevant matters and avoid a decision which no rational decision-maker could make. The court must not substitute its own decision.
4. The medical director had acted cautiously and in a considered manner. He obtained specialist advice, responded to evidence suggesting a risk of financial abuse of vulnerable patients, and was entitled to consider exclusion necessary to protect patients and relatives and to prevent interference with the investigation. The exclusion was therefore not arguably unlawful or irrational. The trust was required to keep it under review.
5. The claimant should probably have received fuller reasons when notified of the exclusion, but that procedural shortcoming did not render the exclusion itself unfair or justify interim relief. The contractual analysis was unlikely to differ materially from justification under Article 1 of Protocol 1.
6. The policy provision concerning possible danger to patients covered one situation and did not restrain the trust from communicating relevant information to other organisations. Transparency and good-faith information-sharing were appropriate in the medical context. The trust was entitled to notify private providers of the exclusion and its reasons.
7. The claimant was ordered to pay the defendant’s costs. The defendant’s costs were summarily assessed at £30,000.