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Chambers & Partners
25/10/2021

High Court judgment applying Chhabra v West London Mental Health Trust to an MHPS investigation

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The High Court last week handed down its judgment in Kamath v Blackpool Hospitals NHS Foundation Trust [2021] EWHC 2811 (QB). The Claimant, Orthopaedic Consultant Mr Kamath, sought a declaration and final injunction restraining the Defendant Trust from convening a disciplinary hearing based on an investigation into his alleged conduct under Maintaining High Professional Standards in the Modern NHS (“MHPS”).

Applying Chhabra v West London Mental Health Trust [2013] UKSC 80; [2014] ICR 194, Soole J held (at §264) that the breaches of contractual disciplinary procedure arising out of the manner in which the MHPS investigation had been conducted by the Trust were “of such materiality that it would be wrong for the matter to proceed to a disciplinary hearing on the existing basis”.

Soole J held that, in accordance with Skidmore v Dartford and Gravesham NHS Trust [2003] UKHL 27; [2003] ICR 721, it was for the Court to determine whether the categorisation of concerns as conduct or capability under MHPS complied with the terms of the contract. He rejected the Defendant’s submission that this decision was reviewable only against the irrationality standard applicable to contractual discretions, following Braganza v BP Shipping Ltd [2015] UKSC 17; [2015] ICR 449. Soole J further held that it was for the Court to determine whether an MHPS Case Investigator’s findings and evidence were, taken at their highest, capable of supporting a charge of gross misconduct – following Jacobs J in Ardron v Sussex Partnership NHS Foundation Trust [2018] EWHC 3157 (QB); [2019] IRLR 233.

Eleena Misra and Adam Ross acted for the Claimant, instructed by Sarah Dodds of Medical Defence Shield.

Simon Gorton QC acted for the Defendant, instructed by Kate Shute of Weightmans LLP.

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