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Chambers & Partners
31/07/2014

Chakrabarty v Ipswich Hospital NHS Trust, with NCAS as an Interested Party [2014] EWHC 2735 (QB)

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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:

  1. The Trust could not lawfully proceed to a capability hearing unless and until NCAS had carried out an assessment of the prospects of success of remediation in Dr Chakrabarty’s case and there had been a decision by the NCAS panel that Dr Chakrabarty’s capability was so fundamentally flawed that remediation stood no reasonable prospect of success;  and
  2. The Trust could not lawfully proceed to a capability hearing without first awaiting the outcome of GMC proceedings, either by awaiting the outcome of the final conclusion of such proceedings to at least by awaiting the decision of the Medical Practitioners’ Tribunal Service (“MPTS”) in to Dr Chakrabarty’s fitness to practise.

 

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:

  • There is no requirement that NCAS carry out an assessment;
  • There is no requirement that NCAS assist in drawing up an action plan;
  • The only mandatory requirement on a Trust once local action has been ruled out is to refer the matter of NCAS for it to consider whether an assessment should be carried out;
  • If there is no assessment and no action plan can be agreed, this is one of the circumstances in which the matter can be referred to a capability panel;
  • Paragraph 15 of Part IV of MHPS is only relevant where an NCAS assessment has been carried out.  Even where an assessment has been carried out, a trust only has to facilitate a proposed action plan if the trust agrees with it.  If not this is another circumstance in which the matter may be referred to a capability panel for resolution;
  • There is no requirement that an NCAS panel must find that a practitioner is irremediable before he or she can be referred to a capability panel.  A finding of irremediability is just one situation in which a practitioner may be referred to a capability panel.

 

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.

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