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Old Square Chambers instructed in Smo v Hywel Dda University Health Board (Judgment)


Members of Old Square Chambers were instructed on both sides in Smo v Hywel Dda University Health Board [2020] EWHC 727 (QB), in which judgment was handed down by Linden J on 26 March.

This was the first case to consider the interpretation of Upholding Professional Standards in Wales (‘UPSW’), the contractually incorporated scheme for investigating concerns about the conduct, capability and health of doctors employed by the NHS in Wales.

Mr Smo, a consultant colorectal surgeon, was the subject of an investigation by the Board into concerns about conduct and capability.  Following conclusion of the investigation but in advance of a disciplinary Inquiry Panel hearing to consider the conduct allegations about him (and a referral of capability concerns to NCAS), the Board launched an investigation into whether his relationships with his colleagues had irretrievably broken down. The Board contended that this investigation was one which it was entitled to conduct outwith the UPSW procedures.

Mr Smo brought proceedings contending that the decision to commission the second investigation was a breach of the express and implied terms of his contract and seeking an injunction to restrain the Board from proceeding with it.  He was granted an interim injunction in July 2019 to restrain the Board from interviewing him in connection with that investigation.

Linden J, finding in Mr Smo’s favour, held that there had been a breach of both the express and implied terms of the contract.  The Board was required to ‘handle …any issues relating to conduct, competence and behaviour’ in accordance with UPSW. In principle and in practice, the working relationships investigation addressed substantially the same issues and concerns as the UPSW proceedings.  It was not about departmental relationships in general and unconnected with considerations of fault. Instead it entailed consideration of working relationships between Mr Smo and his colleagues in the light of issues raised by them about his conduct and behaviour. Therefore, on a plain reading of the contract, the investigation required the Board to ‘handle…issues relating to conduct, competence and behaviour’ and therefore it had to be conducted in accordance with the provisions of UPSW.

Further and alternatively, Linden J held that it was a breach of the implied term of mutual trust and confidence for the Board to commence the working relationship investigation in the circumstances in which it did so. With the two procedures running in parallel, Mr Smo was placed in an impossible situation, characterised by the judge as ‘Morton’s Fork’.  If he contested the allegations he faced under the UPSW proceedings that would serve to confirm the Board’s impression that working relationships had irretrievably broken down.  By contrast, admitting them and apologising would serve to confirm the case against him in the UPSW proceedings.  Furthermore, a potential outcome of the working relationships investigation was that Mr Smo would be dismissed and the UPSW proceedings would never be completed (albeit that the Board said at trial that it would complete the disciplinary proceedings in respect of the conduct allegations), thus denying Mr Smo the opportunity to seek vindication.

Linden J did not however hold that the question of any breakdown in working relationships between Mr Smo and his colleagues, and whether such breakdown was remediable, could never be considered by the Board other than under UPSW.  Linden J held that there might come a point where the outcome of the UPSW proceedings was that reintegration into the workforce needed to be addressed on the basis of whatever findings had been made as to the fault or otherwise of Mr Smo.

Accordingly, the Court granted an injunction to restrain the continuation of the working relationships investigation pending the outcome of the disciplinary hearing, at which point the position could be reviewed by the Board to determine what steps were appropriate in the light of the outcome.

Mark Sutton QC  and Betsan Criddle acted for the Claimant, instructed by Sejal Raja of RadcliffesLeBrasseur.  Giles Powell and Nicola Newbegin acted for the Defendant instructed by Joanna Corbett-Simmons of Blake Morgan.

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