Court of Appeal
In deciding whether to treat complaints against medical practitioners as either matters of personal conduct or matters of professional conduct or competence for the purposes of disciplinary proceedings, the correct procedure to be adopted by NHS Trusts depended on applying the correct terms of an employee's contract to the nature of the complaint made. To do otherwise would result in a successful breach of contract claim which involved no elements of public law, and so in cases of doubt the best approach was to go down the professional conduct route.
Appeal concerning the definition of the term 'professional conduct' as contained in HC(90)9, a Department of Health circular published in May 1990. The appellant ('S') was first employed by the respondent Trust in March 1997. In February 1999 in the respondent's accident and emergency department, a Ms L attended on 18 September 1999 with a swollen, bruised and disjoined little finger. Following an examination by S she complained that he had touched her breasts and stomach in an inappropriate manner. S was then suspended pending an investigation. The respondent first planned to treat the matter as one of 'personal conduct' but then decided to treat it as 'professional conduct' following representations from S's solicitors. Having sought legal advice of their own the respondent reverted to their original plan to treat the matter as personal conduct. Proceedings were launched for interlocutory relief to prevent the internal disciplinary proceedings from going ahead on that basis but Gage J refused a stay of execution. The Court of Appeal also refused a stay and S was dismissed. S brought a claim for damages arising from an alleged breach of his contract on the basis that he was entitled to have the complaint dealt with as a matter of professional conduct for which an independent disciplinary procedure was prescribed. At trial Gage J accepted that it was a matter of contract law rather than public law; but decided the issue in the respondent's favour on the basis that S could not demonstrate that no Trust could have decided that the complaint against him was one of personal conduct. Gage J granted permission to appeal on the basis that there were conflicting decisions in the High Court in similar cases.
HELD: (1) It was clear from the respondent's disciplinary policy, that was expressly incorporated into S's contract of employment, that he was entitled to an independent enquiry if his case was one of either professional conduct or professional competence. S was also entitled to an independent enquiry if his was an overlap case involving both personal and professional conduct. (2) The issues were: (i) Who decided into which category the case fell, and on what basis could the court interfere with the decision; and (ii) into which category did S's case fall? (3) The question who decided into which the case fell had been clouded by the introduction of public law concepts into an ordinary contractual situation. This was demonstrated not only by the earlier proceedings in the instant case but also by the cases of Kramer v South Bedfordshire Community Health Care Trust (1995) 30 BMLR 34 ('Kramer'), Chaterjee v City and Hackney Community Services NHS Trust (1998) 49 BMLR 55 ('Chaterjee') and Bhanot v South West London and St George's Mental Health NHS Trust (2000) Lloyd's Rep Med 324 ('Bhanot'). The general approach of Bell J in Bhanot was to be preferred and it was for the employer to choose which procedure to follow in accordance with the terms of the contract. If such terms were not properly applied, the employer would be found to be in breach of contract. (4) In the instant case the court was concerned only with the definition of professional conduct, and whether the allegation made was of "performance or behaviour arising from the exercise of medical skills". Even rejecting the 'no reasonable Trust' approach adopted by the judge, both the judge and the respondent were clearly right to characterise the complaint against S as one in which professional conduct was not concerned. (5) Allegations similar to those made in the instant case were not always so clear cut and if there were any doubt, a Trust would be well advised to do down the professional conduct route in any event. Further, if it were known that the doctor was suggesting that there was a valid clinical reason for his behaviour, then a Trust would again be well advised to adopt the professional conduct route unless, as in the instant case, the suggestion was so outlandish that it could confidently be ignored. (6) In dismissing the appeal both the approach and the test adopted by Lightman J in Kramer and Chatterjee (supra) would be disapproved, as would the very wide terms of the test adopted by Bell J in Bhanot (supra). The outcomes however, at least in Kramer and Bhanot, were still consistent with both the approach and test adopted in the instant case.
 ICR 903 :  Lloyd’s Rep Med 111
William Meade (Senior Clerk)