Judgment has been given in this High Court employment case, in which Mark Sutton QC and Alex Shellum successfully resisted the Claimant’s application for an interim injunction to lift his exclusion and restrain the Defendant NHS Trust from contacting or sharing information with the Claimant’s private work providers.
In January 2021, the Defendant Trust commenced an internal investigation into the Claimant, a consultant oncologist, in relation to concerns about irregularities around payments for additional hours, the abuse of position to procure private patients from his NHS practice, and conducting private work during paid NHS time. A concurrent investigation by the Local Counter Fraud Service was already in progress. The Claimant was not excluded at that time.
In March 2021, during the course of the investigation, the Defendant Trust received information which highlighted safeguarding concerns relating to the Claimant’s conduct and potential interference with the ongoing investigation. In the words of Yip J, giving judgment, “to put it bluntly, the allegation is of financial abuse of a terminally ill patient”.
Accordingly, on 24 March 2021, the Defendant excluded the Claimant pursuant to its Medical Staff Concerns Policy, which is the locally agreed policy implementing the “Maintaining High Standards in the Modern NHS” (MHPS) national framework.
The Claimant, in seeking injunctive relief, argued that: the decision to exclude him was unlawful and amounted to a breach of contract; that the Defendant gave no reasons for the exclusion other than to say that evidence collated during the investigation highlighted safeguarding concerns; that no details of those concerns were given to the Claimant at the time of his exclusion; that the Claimant was not given an opportunity to respond before he was excluded and that the Defendant’s failure to obtain his side of the story first rendered the process unfair; and, that the evidence did not amount to reasonable grounds for excluding the Claimant and that exclusion was not proportionate.
The Claimant also argued that the evidence did not support the view that the Claimant may be a danger to patients and therefore the Defendant had no right to notify his private providers that he had been excluded and was being investigated for fraud. The Claimant moreover sought to rely on the right to protection of property in Article 1, Protocol 1 ECHR in relation to the notification of his private work providers.
The Defendant argued that its decision to exclude the Claimant involved the lawful exercise of discretion, per the principles in Braganza v BP Shipping Ltd  UKSC 17, and therefore did not give rise to any arguable claim for breach of contract. The Defendant pointed to the gravity of the alleged misconduct, which it had a cogent evidential basis for, and that, in relation to the procedural unfairness argument, that the investigation was ongoing and dynamic. Additionally, the Defendant was under an obligation to keep the Claimant’s exclusion under review.
Yip J, giving judgment, agreed with the Defendant:
Accordingly, Yip J dismissed the Claimant’s application for an injunction.
The judgment in this case provides an illustration of how a cautiously considered decision to exclude, on the basis of relevant factors and cogent evidence, is unlikely to be deemed irrational notwithstanding minor procedural irregularities. It also illustrates how, where the requirements of the employment contract have been properly adhered to, Article 1, Protocol 1 ECHR is unlikely to provide a free standing basis for a successful challenge to the exchange of information between the Medical Director of the employing NHS Trust and their counterparts in private practice in connection with serious concerns about a practitioner’s performance.
Mark Sutton QC and Alex Shellum were instructed by Victoria Watson, Andrew Rowland and John Hatton of Capsticks Solicitors LLP.
To view the full judgment, please click here.
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