Dr MN v NHS Foundation Trust L

A procedure incorporated into an employment contract may give contractual effect to provisions governing who must manage an investigation. Where a policy provides that the Medical Director will act as Case Manager in cases involving consultants, that obligation is ordinarily contractual and non-delegable. Exceptions may arise where the Medical Director must recuse themself, is unable to act, or is absent for a substantial period.

Concerns potentially affecting patient care fall within the relevant procedure, including concerns about conduct outside the employing hospital where patient care may be affected. An employer may not avoid contractual conduct or capability procedures by relabelling the same matters as trust and confidence or reputational concerns. A genuinely separate reputational issue may, however, be addressed as some other substantial reason.

The claimant, a consultant doctor employed by the defendant NHS Foundation Trust, challenged the contractual basis and conduct of an internal investigation concerning his involvement in observational visits by Lucy Letby and matters relating to a former patient.

The issues included whether the Trust’s E27 policy was incorporated into the employment contract; whether paragraph 1.6 required the Medical Director to act personally as Case Manager; whether delegation to a senior manager was permissible; whether the implied term of trust and confidence had been breached; and whether the Trust could avoid E27 procedures by characterising potential consequences as trust and confidence or reputational matters.

1. Outcome. The claimant succeeded. Declaratory relief was appropriate. The parties were directed to seek agreement on its precise wording.
2. Contractual incorporation. E27 was incorporated into the employment contract through the contractual reference to procedures consistent with MHPS. Paragraph 1.6 was apt for incorporation. Its importance to the employment relationship, certainty, context, and workability supported that conclusion, applying the indicia discussed in Hussain v Surrey & Sussex Healthcare NHS Trust.
3. Scope of the procedure. Paragraph 1.6 applied because the matters investigated were potentially serious concerns which had or might adversely affect patient care. Patient care was not confined to patients of the employing Trust. Concerns about patient confidentiality and the possible impact of observational visits on later patient care were sufficient.
4. Case Manager. The natural meaning of paragraph 1.6 required the Medical Director to act as Case Manager in investigations involving consultants. The permission to delegate applied to other cases and did not apply to consultant cases. The purported delegation to Ms Y therefore breached the contract.
5. Exceptions. The obligation was subject to implied qualifications. The Medical Director need not act where fairness required recusal, including personal or direct knowledge of the key subject matter, a close personal relationship with the practitioner, or where ill-health or lengthy absence made acting impossible. Assistance and advice could be obtained, provided the Medical Director made the decisions and carried out the required actions.
6. Implied terms and future procedure. The allegation that Ms Y’s conduct breached trust and confidence was not made out. It was premature to determine whether she would act unfairly after the investigation. The Trust could not sidestep E27 by relabelling matters of conduct or capability as trust and confidence. A separately articulated investigation into reputational impact could potentially constitute some other substantial reason, provided it did not rely on allegations concerning conduct or capability without following E27.