England and Wales Court of Appeal (Civil Division) Decisions

Case No: 2000/2194/A2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 20^th December 2000

LADY JUSTICE HALE:

Introduction

1. This appeal concerns the definition of the term 'professional conduct' as used in HC(90)9, a Department of Health Circular published in May 1990, headed 'Disciplinary Procedures for Hospital and Community Medical and Dental Staff'. It is widely used by National Health Service Trusts, including the respondent, in determining the appropriate disciplinary procedure to use when allegations are made about a doctor's behaviour. The appellant doctor was employed by the respondent NHS Trust. A complaint was made about his conduct in relation to a female patient. The issue in these proceedings is whether he was entitled under the terms of his contract to have the complaint dealt with as a matter of 'professional conduct', for which an independent disciplinary procedure was prescribed, or whether his employers were entitled to treat it as a matter of personal conduct, for which a less elaborate internal disciplinary procedure was prescribed. The answer turns upon the particular terms of his contract of employment. There are, however, conflicting decisions in the High Court in similar cases and the Judge himself gave permission to appeal.

Facts

2. The appellant was first employed by the defendant in March 1997 on a two year general medicine rotation. In February 1999 he began a two year general practice rotation. His first six months was as a senior house officer in Obstetrics and Gynaecology. His second six months beginning in August 1999 was in Accident and Emergency. His third six months was due to begin in February 2000 in Paediatrics but was never taken up. His fourth six months was to be at a different hospital in the employment of a different trust.

3. On 18 September 1999, a Ms L attended the Accident and Emergency Department with a swollen, bruised and disjointed little finger. She went into a cubicle to see the doctor. According to the investigating officer's report,

'The doctor asked Ms L what the problem was and she explained she felt uneasy as it was only a finger injury and other patients coming into the hospital had greater problems. Ms L was standing by the sink and the Doctor examined her finger.

The Doctor then asked her to take off her grey fleece and lie on the bed as he was going to examine her, she had underneath a blue tight fitting lycra top. Ms L experienced pain in the arm where the finger injury was. The Doctor then proceeded to tap along the outside of the said arm towards the neck and down her back, he then asked her to move her head forward.

Ms L at this point of the examination was starting to feel uncomfortable and again asked if this was the correct procedure for a finger injury.

The Doctor then began moving down Ms L's cleavage in a tapping motion and then moved to Ms L's left breast going down the "nipple line" and moving to the right breast "nipple line" with the same tapping motion. Ms L at this point became very anxious and started to stiffen up. The doctor then started rubbing Ms L's tummy and asked if she was feeling sick.

The doctor finished his examination by putting his arm round her and drawing her close to him which she took as maybe his way of comforting or reassuring her. The Doctor left the cubicle saying that he was going for a second opinion.'

4. Ms L complained and the doctor was suspended pending investigation. His employers first planned to treat it as a matter of 'personal conduct'. Following representations from his solicitors they decided to treat it as a matter of 'professional conduct'. Having taken legal advice they reverted to their previous plan to treat it as 'personal conduct'. Proceedings were launched for interlocutory relief to prevent the internal disciplinary hearing going ahead. This was refused by Gage J, who granted permission to appeal but refused a stay of execution. This Court also refused a stay. The hearing proceeded and the doctor was dismissed.

5. Initially he sought a declaration that the hearing was invalid and the quashing of the decision to dismiss him. Mr Miller QC accepts that these are private law proceedings in which that remedy is not available. Instead he seeks damages for breach of the doctor's contract of employment.

The contract

6. Paragraph 8 of the terms and conditions of service provides:

'The Trust has an agreed disciplinary procedure which includes the right of appeal against disciplinary action or dismissal. A copy is attached to this document and you should be aware of the rules and contents which form part of the terms of your contract.'

7. Paragraph 1.3 of the Disciplinary Policy, Procedures and Rules provides:

'The policy applies to all staff employed under a contract of employment with the Trust, including cases of misconduct by medical and dental staff. However, cases where the professional conduct and/or competence of medical and dental staff are concerned will be dealt with under HM(61)112, HC(90)9 and HSG 94(49).'

Section 7 of the Policy deals with the internal disciplinary procedures, which were followed in this case.

8. The alternative procedures for cases concerning professional conduct and/or competence are laid down in HC(90)9. Paragraph 3 of the main Circular is headed 'Definitions':

'3. The procedure(s) to be followed following allegations of misconduct will depend upon the nature of the allegation. It is recognised that authorities sometimes have great difficulty defining the nature of the conduct which is the subject of an allegation, and the following definitions have been agreed between the Departments and the professions:

PERSONAL CONDUCT - Performance or behaviour of practitioners due to factors other than those associated with the exercise of medical or dental skills.

PROFESSIONAL CONDUCT - Performance or behaviour of practitioners arising from the exercise of medical or dental skills.

PROFESSIONAL COMPETENCE - Adequacy of performance of practitioners related to the exercise of their medical or dental skills and professional judgment.'

9. Annex B deals with disciplinary proceedings relating to medical and dental staff. Paragraph 3 reads:

'3. There are broadly three types of case which may involve medical or dental staff:

a. cases involving personal conduct;

b. cases involving professional conduct;

c. cases involving professional competence.

It is for the Authority to decide under which category a case falls. Guidance on the definition of each category is given in paragraph 3 of the Circular.'

10. Paragraph 4 of Annex B provides that in personal conduct cases, the position of a doctor or dentist is no different from that of other health service staff. The matter will be dealt with under the general Whitley Council terms (in this case, under section 7 of the disciplinary policy). Professional conduct or competence cases however are dealt with under a more elaborate procedure involving an independent panel of inquiry consisting of a legally qualified chairman and equal numbers of professional and lay people or in competence cases with professionals or have one in the same discipline as the doctor whose competence is in question. The procedural timetable laid down totals up to 22 weeks for all stages to be completed.

The issues

11. It is clear from paragraph 1.3 of the disciplinary policy, which is expressly incorporated into the contract of employment, that the doctor is entitled to the independent inquiry if the case is one of either professional conduct or professional competence. It was rightly conceded by Miss O'Rourke on behalf of the Trust that the doctor was also entitled to the independent inquiry if this was an 'overlap' case involving both personal and professional conduct. The issues, however, were:

(1) Who decided into which category the case fell, and on what basis could the court interfere with that decision?

(2) Into which category did this case fall?

Who decides?

12. One might have thought that the answer to the first issue was obvious. The employer who is contemplating disciplinary action against an employee has to decide which procedure should be followed. If the employee thinks that the employer has made the wrong choice, he can try to have it changed in advance or seek damages after the event. The court will have to perform its usual task of construing the contract and applying it to the facts of the case.

13. Unfortunately the issue has been clouded by the introduction of public law concepts into an ordinary contractual situation. Thus in two cases, Kramer v South Bedfordshire Community Health Care Trust (1995) 30 BMLR 34 and Chatterjee v City and Hackney Community Services NHS Trust (1998) 49 BMLR 55, Lightman J held that it was for the employer to decide the categorisation of the case and the court could only interfere if the decision was reached in bad faith or perversely or was one which no reasonable decision maker could have reached.

14. In Bhanot v South West London and St George's Mental Health NHS Trust [2000] Lloyd's Rep Med 324, Bell J disagreed: he accepted the argument that this is not a public law issue where concepts of reasonableness apply. It was an action for breach of the contract of employment which involved simply ruling on what those terms were and whether the employer was in breach of them.

15. In the present case, reported as Saeed v The Royal Wolverhampton Hospitals NHS Trust [2000] Lloyd's Rep Med 331, Gage J preferred the approach of Lightman J. He accepted that it was a matter of contract rather than public law. However, he proceeded on the basis that Annex B of HC(90)9 formed part of the contract. Under paragraph 3, the decision was one for the employers to make and the definitions were for 'guidance' only. He therefore proposed 'to decide the main issue on the basis that it must be shown by the claimant that no Trust could have decided that the complaint made by Ms L was one of personal conduct.'

16. It may well be that the terms of each of the contracts involved in these four cases were different. In Bhanot, the definitions derived from paragraph 3 of the main Circular were an express term of the contract. In Kramer and Chatterjee it appears that some or all of the Circular was incorporated by reference but we do not know exactly how. A good deal of the argument before Gage J and before this Court turned on how much, if any, of the Circular was incorporated into this contract. Gage J accepted the argument for the Trust that the whole of it was incorporated. This includes paragraph 3 of Annex B, which not only provides that it is for the employers to decide, but also indicates that there are 'broadly' three categories of complaint and that the definitions are for 'guidance'. Mr Miller for the doctor argues that the Circular is not incorporated until such time as the Trust decides that the case should proceed under Annex B; however, as the contract refers to certain expressions, for which definitions are provided in paragraph 3 of the Circular and for which no alternative definitions are either in general use or suggested in this case, the contract should be construed by reference to those definitions.

17. On this issue I have no hesitation in preferring the general approach of Bell J in Bhanot's case. Of course the employer has to decide which procedure to follow. But the employer has to take that decision in accordance with the terms of the contract. This approach was easier to apply in Bhanot because the definitions were express terms of the contract. But it is not difficult to apply in this case. Paragraph 1.3 of the disciplinary policy clearly provides that the Annex B procedure will be followed in cases where professional conduct and/or competence are concerned. The Circular is expressly referred to. The Circular contains definitions of both professional conduct and professional competence. No alternative definitions have been suggested. In my view they are incorporated into this contract by reference and the employer will be in breach of contract if they are not properly applied.

Which category?

18. In Chatterjee's case, Lightman J adopted the same definition of the difference between personal and professional conduct that he had earlier used in Kramer's case:

'In my view the critical distinction is between conduct which falls short of standards of behaviour demanded of all staff (professional or otherwise) employed by the defendant and conduct which falls short of the standards demanded of medical staff in the exercise of their professions as professionals employed by the defendant. As I put it in Kramer's case, the litmus test is whether the conduct giving rise to the complaint is equally objectionable whether it is that of a professional or a non-professional. An indecent assault on a patient or rudeness to a patient is likewise personal misconduct, whether by medical or non-medical staff and whether during an examination or at any other time.'

Kramer's case concerned complaints of frequent absences from work, the number of patients dealt with, the length of the waiting list and difficulties in working with colleagues. In Chatterjee's case the complaints were of rudeness and insensitivity around the taking of a cervical smear although not of incompetence in taking the smear itself. In both cases, Lightman J upheld the employer's decision that these were matters of personal conduct.

19. In Bhanot's case, the allegations against a clinical assistant in psychiatry included a complaint of inappropriate questioning about sexual history in the course of psychiatric interviews and an unnecessary physical examination. Bell J held that these fell to be dealt with as professional conduct. He saw force in the argument that if Lightman J's 'litmus test' were correct it was difficult to think of circumstances where any conduct on the part of the doctor could not be characterised as personal. He considered that the definition of professional conduct was 'very wide'. The allegations in his case fell within it:

'They are matters which took place or are alleged to have taken place in the context of a meeting of treating doctor and patient at which the doctor was purporting to treat the patient or examine her, or question her for the purpose of medical treatment. I appreciate that it can be argued that that approach may avoid the issue of whether the doctor was actually treating the patient or examining her or questioning her for the purpose of medical treatment as opposed to doing what he is alleged to have done for his own personal gratification. But at the very least it seems to me that his alleged behaviour arose from the exercise of medical skills.'

20. In the case before us, Gage J was starting from the proposition that he should not interfere with the decision of the employer 'unless it is so plainly wrong that no Trust could on these facts have reached the decision which it did'.

'In my judgment, the defendant was entitled to conclude that if the complaint was proved, the conduct of the claimant involved no exercise of skills as a doctor. The only way in which it can be said to be professional conduct is if it can be said that the setting of the patient/doctor relationship was sufficient to say that it was behaviour or performance arising out of the exercise of professional skills. In my view, the defendant was entitled to conclude that it was not sufficient . . . .'

21. It is important to remember that, in this particular contract, we are concerned only with the definition of 'professional conduct', which is excluded from the employer's ordinary disciplinary procedures. 'Personal conduct' is not referred to in the contract and so the definition in paragraph 3 (which is not the exact counterpart of the definition of 'professional conduct') is not strictly relevant. It is also important to note that paragraph 3 defines the categories by reference to the 'nature of the allegation' made. In this case, therefore, we are concerned with whether the allegation made was of 'performance or behaviour arising from the exercise of medical skills'.

22. Mr Miller maintained his argument that those words are apt to cover anything taking place between doctor and patient in a clinical setting. He did have to modify that stance when confronted with an extreme case, such as that of a doctor taking advantage of the clinical setting to stab his patient in the back. The thrust of his argument, however, was that in such a setting it was for the inquiry and not for the employer to determine whether what took place was the application or the misapplication of medical skills. The doctor could not be asked to defend himself in advance and therefore the employer could not take into account that, in this case, the doctor did not seek to say that what he had done was a proper examination for an injured finger but rather simply denied that it had taken place at all.

23. Miss O'Rourke, on the other hand, argued that there are some behaviours even between doctor and patient in a clinical setting which could not possibly arise from the exercise of medical skills. This was such a case. The conduct of which complaint was made was touching the breasts and stomach. This had nothing at all to do with the exercise of medical skills in examining or treating the little finger or even her arm. It was not a case like Bhanot, where the issue was whether the questioning had gone too far, a matter upon which professional psychiatric expertise would clearly be relevant.

24. In my view, even having rejected the 'no reasonable Trust' approach adopted by the Judge, both the Trust and the Judge were clearly right to characterise this particular allegation as one in which professional conduct was not concerned. There is no conceivable way in which the allegation made here could arise (nor was it suggested that it did arise) out of the exercise of medical skills, even though the context was one in which it was expected that those skills would be exercised.

25. Of course, many such allegations will not be so clear cut. If there is any doubt about the matter, a Trust would be well advised to proceed down the professional conduct route in any event. Miss O'Rourke rightly acknowledged that in a contract such as this, if there is any overlap between personal and professional conduct, the professional conduct route must be taken. Further, if it is known that the doctor is suggesting that there was a valid clinical reason for his behaviour, then a Trust would be well advised to adopt the professional conduct route unless that suggestion is so outlandish that it can confidently be ignored. In this case, of course, no such suggestion was or could be made. In my judgment, it is unwise to attempt any 'litmus test' of 'professional conduct' other than the definition contained in the Circular.

26. I would dismiss this appeal. In doing so I would disapprove both the approach and the test adopted by Lightman J in the Kramer and Chatterjee cases but I would also disapprove the very wide terms of the test adopted by Bell J in the Bhanot case. The outcomes, at least in the Kramer and Bhanot cases, are still consistent with both the approach and the test adopted here.

LORD JUSTICE POTTER:

27. I agree.

DAME ELIZABETH BUTLER-SLOSS, PRESIDENT:

28. I also agree.