Counsel for the Trust: Jane McNeill QC leading Louise Chudleigh

 

On 25 January 2013 the Court of Appeal handed down judgment in West London Mental Health NHS Trust v Dr Chhabra. The Court of Appeal unanimously allowed the appeal and quashed the declarations and injunctions made by the trial judge, HHJ McMullen QC sitting as a judge of the High Court the effect of which had been to restrain the Trust from holding a disciplinary hearing.

 

The successful Appellant Trust was represented by Jane McNeill QC and Louise Chudleigh, instructed by Capsticks (Gary Hay). Dr Chhabra was represented by Mark Sutton QC and Betsan Criddle, instructed by Radcliffes Le Brasseur (Alex Leslie).

 

Dr Chhabra is employed by the Trust as a Consultant Forensic Psychiatrist who is alleged to have breached patient confidentiality whilst travelling on a train.

 

A disciplinary investigation was conducted by an external case investigator under the Trust's procedures implementing Maintaining High Professional Standards in the Modern NHS. Following a review of her report, the case manager decided to refer the allegations of misconduct to a disciplinary panel. Concerns relating to Dr Chhabra's capability, which were also investigated in the report, were referred to the National Clinical Assessment Service ("NCAS").

 

Dr Chhabra sought an order restraining the Trust from proceeding with the proposed conduct hearing and was successful at trial. Please see Chhabra v. West London Mental Health NHS Trust for the commentary on that decision.

 

The Court of Appeal disagreed with the approach of HHJ McMullen QC. The lead judgment was given by Lord Justice Pill with whom both Lord Justice Jackson and Lord Justice Treacy agreed.

 

Lord Justice Pill considered that the issue for the Court was a narrow one, and that the question to decide was whether the case manager acted: "… in breach of contract, on receipt of the investigating officer's report, in deciding on 12 August 2011 to convene a disciplinary panel to consider allegations of breach of confidentiality by Dr Chhabra and to consider them as potential gross misconduct". It was for the case investigator to provide sufficient information for the case manager to decide whether there was a case of misconduct that should be put to a conduct panel. There was a threshold to be crossed, in terms of seriousness, before a decision to refer to a panel could properly be taken, but on the facts, the Trust was entitled to regard a breach or breaches of confidentiality in a public place as a potentially serious offence and to refer the allegations to a disciplinary panel as matters of potential gross misconduct.

 

Comment: This judgment makes clear that, whilst employees may apply to the Court for an injunction to restrain the conduct of disciplinary procedures, a breach of contract must be shown. If there is evidence disclosed by the investigation which justifies the decision to convene a conduct hearing, it is likely to be inappropriate to grant injunctive relief.