Dr MN v NHS Foundation Trust L

The Trust's local policy E27, which implements the MHPS framework, was incorporated into the claimant's contract of employment. Paragraph 1.6 of Appendix A to E27, read in context, requires that the Medical Director (here the Chief Medical Officer) act as Case Manager in investigations concerning clinical leaders, including consultants, and that that role is not routinely delegable. The Trust's appointment of Ms Y as the Case Manager for the present investigation was therefore a breach of the contractual requirement, subject to narrow, obvious qualifications (for example, where the Medical Director is recused for conflict, has personal knowledge making impartiality impossible, or is unable through ill health to act). The court ordered declaratory relief to record that outcome and left the precise form of the declaration to be agreed by the parties.

Background and parties. The claimant is a substantive Consultant in Diabetes and General Paediatrics employed by NHS Foundation Trust L. He was the subject of a Trust fact-finding investigation arising from his prior involvement with an observership by Lucy Letby and a separate complaint relating to Baby N. The Trust appointed its Director of Corporate Affairs (Ms Y) as Case Manager; the claimant contended that E27 and the MHPS framework required the Medical Director to be Case Manager and that appointment and/or continued role of Ms Y breached his contractual and implied rights. The case was tried at first instance before Mr Justice Sheldon.

Nature of the claim / relief sought. The claimant sued for breach of contract and sought declaratory and injunctive relief to prevent the Trust from conducting the investigation or taking subsequent steps in a way inconsistent with his contract, principally by imposing the correct Case Manager and ensuring procedural protections under the E27/MHPS framework.

Issues before the court. The principal issues the court identified were: (1) whether E27 was incorporated into the employment contract; (2) whether paragraph 1.6 of E27 Appendix A is apt to be contractual such that the Medical Director must act as Case Manager for consultants and may not delegate that role; (3) whether the Trust breached paragraph 1.6 by appointing and/or delegating to Ms Y; (4) if paragraph 1.6 was not contractual, whether the Trust nevertheless breached implied terms (including trust and confidence) by delegating or by Ms Y's evidence to the Thirlwall Inquiry; (5) whether if the investigation report identified conduct/capability concerns the Trust would be required to follow Sections 3 and/or 4 of E27 before taking employment action; and (6) whether relief should be granted.

Court's reasoning and findings. The court accepted that E27 was incorporated into the claimant's contract (the contract expressly incorporated Trust procedures consistent with MHPS). The court construed paragraph 1.6 in its textual and documentary context and concluded its natural meaning was that the Medical Director "will act as the Case Manager" for clinical leaders (including consultants) and that delegation is permitted only for "other cases". That provision was apt for incorporation: it is important to the contractual relationship, sufficiently certain, workable, and sits among other incorporated procedural protections (for example, exclusion/suspension provisions). The judge rejected the claimant's argument that the abbreviation "i.e." in paragraph 1.6 was a drafting error requiring a wider definition; instead the Trust's chosen threshold of concerns that "have or may adversely affect patient care" was a permissible and intelligible local formulation of MHPS. The court accepted that narrow exceptions should be implied (for example, where the Medical Director is conflicted, is a necessary witness, or is unavailable through ill health), but held those are exceptional and do not undermine the general contractual rule. On the allegation that Ms Y's prior engagement with the public inquiry made her incapable of impartiality, the court held that the material placed before the inquiry did not demonstrate a disqualifying bias and that it was too early to conclude unfairness; that complaint did not independently establish a breach of the implied duty of trust and confidence. The judge also held that the Trust could not "side-step" E27/MHPS by labelling matters as 'trust and confidence' ("some other substantial reason") where the true issues are conduct or capability; however, if the Trust were to amend the terms of reference expressly to investigate reputational issues, a different process might legitimately apply.

Disposition and remedy. The claimant succeeded. The court granted declaratory relief (to be settled in terms) recording that it is a contractual term that the Medical Director serve as Case Manager for the investigation at issue, subject to the limited exceptions described above. The judge indicated injunctive relief was unnecessary because the Trust would comply with the ruling.

First instance: The claim succeeds. The court held that E27 is incorporated into the claimant's contract and that paragraph 1.6 of Appendix A requires the Medical Director (here the Chief Medical Officer) to act as Case Manager in investigations concerning clinical leaders including consultants; the Trust's appointment and delegation to Ms Y was therefore in breach of that contractual requirement subject to narrow exceptions (for example, conflict of interest, recusal, or incapacity). Declaratory relief was granted to record that conclusion.