Facts
Dr Chakrabarty is a consultant doctor who had been excluded from practice by his employing Trust as a result of concerns about his clinical capabilities. Having undertaken its own internal capability investigation, the Trust referred the matter to NCAS for NCAS to consider whether to carry out an NCAS assessment. Dr Chakrabarty was also referred to the GMC. The GMC decided to undertake its own assessment of Dr Charkabarty and so the NCAS assessment did not proceed. The GMC assessment found that Dr Chakrabarty required retraining at SHO level. There followed several years during which Dr Chakrabarty was in dispute with the GMC as to the result of its findings and what undertakings could be agreed and also with the Trust as to what retraining was required and what an action plan might look like. The Trust had initially tried to proceed to a capability panel hearing in early 2009. It then sought to do so again in early 2014.
Dr Chakrabarty sought an injunction against the Trust arguing that:
NCAS
The Trust made two referrals to NCAS, the first prior to the GMC assessment and one several years after the GMC assessment at the request of NCAS. As set out above in respect of the first referral NCAS declined to undertake an NCAS assessment as the GMC had decided to undertake its own assessment. In respect of the second referral, which NCAS specifically requested the Trust make, NCAS decided not to undertake its own assessment of Dr Chakrabarty on the basis that it did not think that it would add anything to the GMC assessment and Dr Charkabarty had indicated that he would not wish to be assessed by NCAS.
The Court rejected completely Dr Chakrabarty’s arguments that the Trust could not proceed to a capability hearing without there being first an NCAS assessment and a conclusion of an NCAS assessment panel that remediation stood no reasonable prospects of success. In particular:
Concurrent GMC / MPTS Proceedings
The Court found on the facts that there had been no promise or representation to await the outcome of GMC proceedings nor was it in breach of any express or implied term as to fairness to proceed to a capability hearing without awaiting the outcome of such proceedings.
Clarification of the extent of the implied term of trust and confidence
Moreover, the Court rejected an argument by Dr Chakrabarty that there was a freestanding, discrete implied term of fairness, accepting instead that “where the authorities contemplate questions of fairness, they do so in the context of the implied term of trust and confidence, or on a narrower basis by reference to an implied term that disciplinary processes will be conducted fairly, without unjustified delay”. The court found that Dr Chakrabarty had not established a factual basis for breach of any of the implied terms he had relied upon.
Comment
This case provides extremely welcome guidance for Trusts when dealing with doctors with capability issues and also those facing concurrent GMC proceedings.
First, in respect of referrals to NCAS in situations where issues of capability have arisen, today’s judgment has the effect of removing the huge degree of uncertainty that followed the decision of the High Court in Lim v Wolverhampton [2011] EWHC 2178 (QB) which in effect required there to be an NCAS ruling of irremediability before there could be a reference to a capability hearing, despite there being no requirement for NCAS to carry out an assessment and however extensive any identified practice deficiency might be.
Instead Trusts will be able to proceed to determine the right way forward, including proceeding to a capability hearing, both where NCAS has declined to undertake an assessment and also where an assessment has taken place which has not found the practitioner to be irremediable but the parties cannot agree a way forward or where the employing trust simply does not think that the proposed action plan is practicable. The only restraint is the restraint that is found in all contracts of employment: implied term of trust and confidence.
Similarly it provides comfort to Trusts facing the situation where there are GMC proceedings ongoing at the same time as capability proceedings in respect of the practitioner. Whilst Trusts must take care to consider each individual situation and there may be circumstances where it is, in fact, appropriate to await the outcome of related GMC / MPTS proceedings, what this decision makes clear is that there is no legal requirement to do so, subject again to the implied term of trust and confidence.
Finally, and of broader significance to employment lawyers in the light of recent case law, the High Court accepted the submission of the Defendant that references in the authorities to a requirement of “fairness” in the conduct of disciplinary proceedings do not reflect a generalised contractual duty of fair treatment but instead are concerned with fairness as a facet of the implied term of trust and confidence in employment contracts.
Giles Powell and Nicola Newbegin appeared for the Trust, instructed by Mills & Reeve LLP. Mark Sutton QC with Ben Cooper appeared for NCAS, instructed by Capsticks LLP. All are members of Old Square Chambers.
A copy of the judgment can be found here.
Chakrabarty v Ipswich Hospital NHS Trust, NCAS, Queens Bench Division, QBD, Doctors Disciplinary, Regulatory, Employment, Law
High Court clarifies role of NCAS assessments in MHPS proceedings and the position where there are concurrent GMC and internal Trust proceedings and holds that there is no separate implied term of fairness in employment contracts, rather it is a facet of the implied term of trust and confidence. This later point is of wider and general significance to contractual employment claims.
