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Chambers & Partners
08/12/2021

Burn v Alder Hey Children’s NHS Trust

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Introduction

Is there an implied duty of procedural fairness in the conduct of disciplinary proceedings?  Perhaps, according to the Court of Appeal in Burn v Alder Hey Children’s NHS Trust [2021] EWCA Civ 1791.

The appeal concerned whether NHS employers in England are obliged by the express terms of the Maintaining High Professional Standards in the Modern NHS framework (‘MHPS’) to disclose documents in the possession of the Case Investigator to the doctor who is the subject of the investigation.  The Court held that there is no such express obligation: the duty to disclose ‘any correspondence relating to the case’ is limited to disclosure of correspondence generated by the investigation process.

Of broader interest however, the Court observed, without deciding the point, that there may be an implied contractual obligation to conduct disciplinary processes fairly.  In the context of this appeal, this might be the source of an obligation to disclose documents which are necessary for the doctor to see to put their version of events.

Richard O’Keeffe, pupil at Old Square Chambers, has written a case summary following the judgment.

The dispute

Under MHPS, a doctor subject to an investigation is entitled to be informed of the allegations against them, to see a list of intended interviewees, to have the opportunity to put their view of events, and (crucially for the present case) to see ‘any correspondence relating to the case’.

The dispute arose when the Trust refused to provide Ms Burn, in the context of an MHPS investigation into the care of Patient A, with copies of two letters sent to Patient A’s parents, and three witness statements obtained as part of a Root Cause Analysis into Patient A’s treatment.  She brought a claim seeking a permanent injunction restraining the Trust from concluding the investigation without disclosure of those documents and requiring the Trust to disclose them.  This was on the basis that either (1) MHPS was to be construed as entitling her to see all documents seen by the Case Investigator in connection with the investigation; or (2) it was a breach of the implied term of trust and confidence not to disclose them.

The claim failed before the High Court.  The Court (Thornton J) held that ‘correspondence’ meant written communications between parties.  On that basis, Ms Burn was not entitled to the RCA statements, because they were not written communications.  Further, ‘relating to the case’ was to be equated with a test of relevance.  Whether written communications were relevant to be disclosed involved an exercise of judgement by the Case Investigator, which could only be challenged on rationality grounds.  On that basis, Ms Burn was not entitled to the correspondence with Patient A’s parents, because the Case Investigator said that these written communications were not relevant.  The case on the implied term of trust and confidence failed because that could not be used to create a wider right of disclosure than that provided by MHPS.

The appeal

The appeal challenged both the High Court’s construction of MHPS and its conclusion on the implied term of trust and confidence.  Ms Burn was given permission to appeal only in respect of the issue of the construction of MHPS and not on the implied term of trust and confidence. In that regard she argued that ‘correspondence relating to the case’ needed to be construed purposively so as to include all documents related to the investigation, including both documents assembled for the purpose of the investigation and documents generated in the course of it, without which she would not have a fair opportunity to put her view of events.  The assessment of relevance was likewise a matter for the Court and the documents were relevant as they were either statements about the care provided to Patient A or were part of the background which explained why the MHPS investigation had been commissioned.

The Court of Appeal dismissed the appeal on the basis that:

(1) ‘Correspondence’ means communications from one person to another.   Further, ‘relating to the case’ meant correspondence generated by the investigation process, rather than correspondence related to the subject matter of the investigation.

(2) The other obligations of the Trust at the preliminary investigation stage – to provide a list of intended interviewees, and to afford the doctor an opportunity to put their view of events – were ‘limited and high-level process obligation[s]’, inconsistent with any obligation of full documentary disclosure.

That disposed of the grounds of appeal which had been permitted to proceed.

However, in obiter dicta remarks, both Underhill and Singh LJJ (with whom Laing LJ agreed) considered that there was a duty of procedural fairness in the context of a disciplinary process. In the specific context of MHPS, Underhill LJ commented that the obligation to give the doctor the opportunity to put their version of events ‘necessarily implies that they must be shown any documents that they fairly need in order to be able to do so’. Singh LJ expressed the view that it was preferable to treat the duty of procedural fairness as arising from the nature of the disciplinary process rather than as an aspect of the trust and confidence duty, though that important issue of principle would be left open for a future case.

Comment

This is the first appellate case to consider the scope of disclosure obligations under MHPS.  Whilst the Court of Appeal rejected the argument that there is an express right to see all documents in the possession of the Case Investigator, the Court accepted that a doctor should be afforded the right to see relevant documents for the purpose of an investigation interview in order to have a fair opportunity to put their version of events.  In doing so, the Court rejected the argument that there is no obligation to provide disclosure of any kind of documents, regardless of their importance to the investigation.

Whether the duty to conduct disciplinary procedures fairly is an independent implied term or an aspect of the implied term of trust and confidence is potentially significant, not least because a breach of the latter is a high bar, which is necessarily repudiatory. This decision may therefore lead the way to the recognition of an important discrete implied obligation of procedural fairness in all contracts of employment.

Betsan Criddle and Ben Jones acted for Ms Burn, instructed by Lisa Jones at Medical Protection Society. Simon Gorton QC acted for the Trust.

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