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Chambers & Partners
23/04/2021

Mark Sutton QC and Alex Shellum successful in Kamalnayan Gupta v Northampton Hospital NHS Trust

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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 [2015] 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:

  • “It cannot be properly argued that the exclusion was unlawful in the Braganza sense. Mr Metcalfe acted cautiously and in a considered way. He was not quick to exclude the claimant but did so only when it became apparent that there was evidence giving rise to concerns about financial abuse of patients. He plainly recognised the significance of the decision to exclude the claimant. The advice of the PPA was sought before the decision was made. Mr Metcalfe was entitled to take the view that it was necessary to exclude the claimant at that stage to safeguard patients and their relatives and to guard against the risk of the claimant impeding the investigation.
  • I stress again that I am not seeking to make any determination on contested factual matters at this stage. However, I consider that there is a proper evidential basis for the allegations raised by the defendant. I accept that the claimant’s second statement puts matters in a different light. However, it does not, in my judgment, answer all the concerns. Further investigation is required. As additional evidence is produced and considered, it may well be that a different view is taken. The defendant will be required to keep the claimant’s exclusion under review. Given the careful approach adopted by Mr Metcalfe to date, there is no reason to consider this will not happen
  • “As to the application for the prohibitory injunction in relation to contacting and sharing information with private providers, I am not persuaded that there is any proper basis for making such an order. I have already indicated why I do not consider the argument based upon Article 1, Protocol 1 adds anything to the contractual position. As I have indicated, Appendix 2 of the defendant’s policy covers the situation where there is a concern that a practitioner may be a danger to patients where a report may be made so that a Health Professional Alert Notice may be considered.”
  • “I am satisfied that the defendant was acting in good faith and rationally in notifying other providers of the claimant’s exclusion and the reasons for it. There is no contractual or other reason why they were not entitled to communicate in that way. Having found that the claimant has not established that there is a serious issue to be tried in relation to his exclusion, I do not consider there can be any basis for finding a serious issue to be tried on this second part to his application.”

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.

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Mark Sutton QC Alex Shellum

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