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Court of Appeal to consider the scope of disclosure required during MHPS investigations


Bean LJ has granted permission to the doctor claimant in Burn v Alder Hey Hospital [2021] EWHC 1674, to appeal against the decision of Thornton J regarding the proper interpretation of her MHPS-derived entitlement to be provided with ‘correspondence related to’ an MHPS investigation.

The appeal challenges Thornton J’s restrictive approach to this procedural protection (a) constructing the right as being limited to ‘communications’ that are ‘relevant’ to the subject matter of the investigation and (b) treating the assessment of the Case Investigator on relevance as a discretionary decision that is, in practice, practically impossible to overcome.

These appeal points have been recognised by Bean LJ as raising matters of general importance and the forthcoming decision of the Court will affect the rights of doctors and dentists generally to see documents during any MHPS investigation. The appeal will also require the Court of Appeal to clarify the boundaries of the doctrine of ‘micro-management’, a familiar feature in interim injunction applications that was invoked by Thornton J in justifying the High Court’s refusal to go behind the Case Investigator’s judgment on relevance.

The appeal will be heard later in 2021, having been expedited due to its urgency.

Betsan Criddle and Ben Jones, instructed by MPS act for the Appellant (Betsan Criddle also acted for Ms Burn below).

Simon Gorton QC acts for the Respondent.

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