England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Tuesday 15th January, 2002

1. LORD JUSTICE ALDOUS: I invite Lord Justice Keene to give the first judgment.
2. LORD JUSTICE KEENE: This appeal against a decision of the Employment Appeal Tribunal raises once again the issue of the meaning of the term "professional conduct" as used in the Department of Health Circular, HC (90)9, entitled Disciplinary Procedures for Hospital and Community Medical and Dental Staff.
3. The appellant was employed as a consultant surgeon at Joyce Green Hospital in Dartford, Kent. He had been so employed since 1980, initially by the Regional Health Authority and subsequently by the respondent. He became the senior consultant surgeon in 1990. In the period 1996 to 1997 various complaints arose about him, but in the event only one formed the basis of the respondent's decision to dismiss him. That dismissal was on the ground of gross personal misconduct. It followed an internal disciplinary hearing and took effect on 18th December 1997.
4. The appellant then claimed that he had been unfairly dismissed, a claim which was rejected by the Employment Tribunal. An appeal against that decision was in turn dismissed by the Employment Appeal Tribunal on 22nd February 2001.
5. The facts which gave rise to his dismissal by the respondent are not particularly complicated. On 3rd April 1997 the appellant performed an operation for gall bladder removal on a patient, Mrs A, at the Joyce Green Hospital. It was intended that the operation be carried out by keyhole surgery, that is to say laparoscopic surgery, during the initial stages of which a sharp three-pronged instrument known as a trochar is used to create by incision the channel through which other instruments can then be introduced. However, the operation was converted to open surgery when the patient's left iliac artery was punctured by the trochar. As a result there was a big blood loss and eight units of blood were transfused to the patient. There was a short period of cardio-pulmonary resuscitation, but it seems that the operation was eventually completed successfully.
6. Nonetheless, the patient's husband attended the hospital in a state of considerable anxiety and a week later, on 10th April 1997, he wrote to the Patient Relations Manager at the hospital seeking an explanation for the "very serious error", as he called it, which took place during the operation. He made a number of specific complaints in his letter, including the need for the second operation, by which he meant the open surgery.
7. This prompted the Patient Relations Manager to write to the appellant enclosing Mr A's letter. She asked the appellant to comment on the aspects of the complaint appropriate to his area. She also pointed out that the formulation of the response by the Chief Executive to the complaint had to be based on the factual content of the appellant's report, which should address in detail each issue raised in the letter. She also reminded the appellant of the respondent's responsibility under the Patients Charter and the New Complaints Procedure to respond to complaints within 20 working days.
8. Before replying to that letter, the appellant wrote to Mrs A's general practitioner on 21st April to give "the details of my clinical findings". He stated that the trochar had failed during the operation to operate correctly and had caused a 3mm hole in the artery. He also said that he had explained the situation to the patient after the surgery and apologised for "the malfunction of the trochar". This letter was written on the same day that the appellant had seen Mrs A at the out-patient clinic.
9. However, Mr A had not been able to be present on that occasion, and so a meeting was arranged with both Mr and Mrs A on 29th April at a private hospital where the appellant was engaged on that day. Also present were the anaesthetist from the operation and a representative of the Community Health Council. According to evidence subsequently given by that representative during the disciplinary proceedings, the appellant told those present that the equipment had been faulty and that the safety mechanism which should ensure that the needle did not penetrate too far had failed to operate. He also stated that the instrument had been returned to a representative of the supplier. He estimated the total blood loss at two units, though two more units had been transfused post-operatively.
10. On the same day the appellant replied to the letter from the Patient Relations Manager at the hospital. He dealt at length with the operation. In the course of that lengthy letter describing what had happened, he stated that:

"The total blood loss from this wound was approximately 2 units (1000 cc)."

And later said:

"Total blood loss at operation was approximately 2 units. She was somewhat over transfused after surgery, her [haemoglobin] increasing to 16.2 gms after a total of 4 units transfused."

Also in the letter he explained that he had apologised when he saw Mrs A on the ward the day after the surgery:

"... not for the error, but for the malfunction of the piece of equipment which had caused this recognised complication of Laparoscopic surgery."

He also explained:

"I have made it clear to him [Mr A] that the representative of the company supplying the instrument has collected this trochar and returned it to the parent company for inspection."

11. I have set out those statements of the appellant in some detail because they were of crucial importance in the disciplinary proceedings against him.
12. The Chief Executive of the respondent conducted a hearing into an allegation that the appellant had sought deliberately to mislead the patient and her family, the Community Health Council and the Chief Executive by his statements about the amount of blood transfused and about the trochar. The Chief Executive concluded that the appellant had lied about the amount of blood loss, and about the trochar having been faulty and having been returned to the manufacturer. She concluded that his employment should be terminated for gross misconduct. A subsequent appeal to the Board of the respondent failed.
13. Those procedures were the ones appropriate under the appellant's contract of employment to allegations of personal misconduct. From the outset the appellant had contended that the charges against him could not be so categorised, but were in fact allegations of professional misconduct to which a very different procedure applies. The respondent's disciplinary procedure document, incorporated into the appellant's contract of employment, states:

"This procedure applies to all staff employed by the Dartford and Gravesham NHS Trust, ...

Matters relating to the professional conduct or competence of medical and dental staff will continue to be dealt with in accordance with the procedures laid down in HC (90)9."

14. The significance of the distinction between matters of professional conduct or competence on the one hand and those of personal conduct on the other is that the former are dealt with by an independent panel with a legally qualified chairman and at least an equal proportion of medical and lay members; while the latter are dealt with internally by the respondent's management with an appeal to a panel of the respondent's Board in the way already described. The distinction is one to be widely found in contracts of employment within the National Health Service and its Trusts.
15. In the present case the respondent decided that the allegations were ones of personal misconduct, not professional misconduct. The Employment Tribunal, relying on two decisions of Lightman J -Kramer v South Bedfordshire Community Health Care Trust 30 BMLR 34 and Chatterjee v City and Hackney Community Services NHS Trust 49 BMLR 55 - took the view that the categorisation was a matter for the employer, only to be interfered with on grounds of bad faith, or in effect Wednesbury unreasonableness, neither of which existed in the present case.
16. The Employment Appeal Tribunal also had before it a later decision of Bell J, Dr B v X NHS Trust [2000] Lloyd's Rep Med 324, in which the court declined to follow the Kramer and Chatterjee cases, holding that a matter of construction of a contract did not involve public law concepts of reasonableness. The Employment Appeal Tribunal seems to have taken the view that these High Court decisions could be reconciled on the basis that in the Dr B case the contract did not provide for the categorisation decision to be challengeable only on judicial review grounds, whereas in Kramer and Chatterjee that must have been what the contracts provided. The Employment Appeal Tribunal then appears to have decided that the present contract fell into the latter group.
17. Nonetheless, the Tribunal spelt out its own view clearly enough: namely, that the allegations in this case were essentially of a personal nature, as it said. It went on, at paragraph 53 of its judgment, to state:

"The opportunity for the alleged misconduct arose out of an operation conducted by Mr Skidmore, but the circumstances in which the allegation came to be made were personal. The meeting at which it was alleged the misconduct occurred had nothing to do with the continuing treatment of the patient. It was, in effect, an intended public relations exercise to explain why the procedure had not proceeded according to plan. It could not properly be regarded as a part of Mr Skidmore's out-patient post-operative consultation."

Circular HC (90)9 deals with "Definitions" at paragraph 3. That provides as follows:

"The procedure(s) to be followed following allegations of misconduct will depend on 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."

18. Annex B to that Circular deals with disciplinary proceedings relating to medical and dental staff. Paragraph 3 of that annex reads:

"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."

19. There is now Court of Appeal authority on the issue of who decides into which category a case comes and the basis on which the court may interfere with that decision. In Saeed v Royal Wolverhampton Hospitals NHS Trust [2000] All ER (D) 2387, the court preferred the approach of Bell J in Dr B on this issue. Hale LJ, with whom the rest of the court agreed, said at paragraph 17 that:

"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."

20. She noted that the Circular was expressly referred to in the disciplinary policy in that case, as it is indeed in the present case, and she then continued:

"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."

21. That seems to me to be the situation in the present case. Although a contract could provide otherwise, the terms incorporated into the present contract do not indicate that the respondent has some sort of public law discretion to which judicial review principles would apply when a decision on categorisation is made. It is not contended in this case that the situation is other than the one which I have described.
22. The issue in this appeal, therefore, is whether the conduct alleged against the appellant was personal or professional misconduct as defined by the Circular.
23. On behalf of the appellant, Mr Barnes QC emphasises that the definition of professional conduct is not confined to matters of "performance", but also includes "behaviour". Nor does it require that the behaviour involve the exercise of medical skills, but merely that it should "arise from" such exercise. He also stresses that the skills referred to are "medical", not the narrower term "clinical". Mr Barnes submits that the crucial letter of 29th April 1997 and the meeting on that same day must be seen as a whole, and that it would be wrong to take the individual statements complained of in isolation. The letter is a detailed report about the operation and medical skills are required to understand and evaluate it. It was written because a response was sought from the appellant so that Mr A's complaint could be answered. That was also the object of the meeting which took place on the same day. Reliance is also placed on the General Medical Council pamphlet Good Medical Practice, where it is said:

"Patients who complain about the care or treatment they have received have a right to expect a prompt and appropriate response. As a doctor you have a professional responsibility to deal with complaints constructively and honestly. You should cooperate with any complaints procedure which applies to your work."

24. It is pointed out that the appellant put forward an explanation to his reference to two units of blood being transfused during the operation, an explanation which required some professional understanding of medical practice over the years and of the changing amount of blood comprised in a unit. The same need for expertise, it is said, would arise when deciding whether a statement was honest or merely negligence.
25. Both the approach adopted by the respondent and that adopted by the Employment Appeal Tribunal are criticised on behalf of the appellant, it being said that the Employment Appeal Tribunal did not analyse the events of 29th April or consider that the letter of that date has to be read as a whole. Moreover, it is contended that the Employment Appeal Tribunal adopted the wrong approach by asking whether the allegations were essentially of a personal nature. That is not the right test. The right test, says Mr Barnes, is whether the appellant's behaviour arose from the exercise of medical skills. It did not have to relate to the continuing treatment of the patient, as the Employment Appeal Tribunal seems to have assumed. He criticises the suggestion that the meeting of 29th April was a public relations exercise, pointing out that the appellant actually produced a trochar at the meeting to explain how it could malfunction. However, Mr Barnes recognises that whatever the merits or demerits of the Appeal Tribunal's reasoning, it is for this court to determine whether, on the facts found, the allegations concerned a matter of professional conduct as defined in the Circular.
26. On behalf of the respondent, Mr Douglas QC submits that the decision in Saeed shows that the fact that the occasion is a medical or clinical one does not of itself render everything done on that occasion a matter of professional conduct. The fact that a letter contains medical matters does not mean that everything contained within it has to be seen as arising from the exercise of medical skills. One has to look, it is said, at the conduct actually complained of and see if that arises from the exercise of medical skills. These allegations, it is contended, were ones of a failure of personal integrity on the part of the appellant. He was not telling the truth. The situation would be the same, says Mr Douglas, if the lies were told solely to the patient immediately after the operation. In either situation the conduct of the doctor concerned undermined the relationship of trust between the employer and employee, and was therefore properly the subject of internal disciplinary proceedings.
27. As for the appellant's argument about the amount of blood, that is something, it is argued, which did not require a professional assessment. The argument was clearly wrong if one looks at the records. Nor did the statement that the trochar had been collected require any professional expertise to determine that that was false.
28. Mr Douglas submits that no single test beyond the words of the definition in the Circular can be applied. Nonetheless, he does say that one can properly ask whether this allegation is one which could have been made against someone who was not a doctor. If the answer to that is "yes", then that is an allegation of personal misconduct and not professional misconduct.
29. For my part, I have to say that I have not found this an easy case to decide. Like Hale LJ in Saeed, I would emphasise the importance of applying the very words used in the definition of professional conduct in the Circular. According to that definition, into that category will come "behaviour of practitioners arising from the exercise of medical skills." In construing those words it must also be remembered that there is a further category of allegations dealing with professional competence. It is clear from the existence of that further category that professional conduct is not concerned with the level of professional performance displayed by a practitioner, but with something else, something additional. Moreover, the words "arising from" in the definition of professional conduct are themselves quite wide in their normal meaning.
30. Of course the telling of lies is always in one sense a matter of personal conduct. But in that broad sense everything that a person does is a matter of personal conduct. The issue is whether the telling of these particular lies arose from the exercise of medical skills. I put it like that since I accept the approach favoured by this court in Saeed, namely to see first whether the conduct complained of comes within the definition of professional conduct. The wording of that definition and that of personal conduct is such that there may be room for some overlap in the categories. I would endorse the point made by Hale LJ at paragraph 25 in Saeed that:

"... if there is any overlap between personal and professional conduct, the professional conduct route must be taken."

31. The later route provides in procedural terms valuable safeguards for the practitioner which are not to be lightly disregarded.
32. It seems to me that three points are of significance when seeking to determine the crucial issue in accordance with the definition to which I have referred. First, the appellant was lying about the performance by him of an operation. The operation did not merely provide the occasion or opportunity for his misconduct, as happens in some cases where a medical examination of a patient provides an opportunity for an indecent assault, to take a familiar example. The operation here was the subject matter of the lie, and the conduct on the part of the appellant would not have taken place but for the exercise of his medical skills in the course of the operation. It comes into a different category from lies told about a matter not involving his medical skills, such as, for example, whether he had been having an affair with a member of the nursing staff.
33. Secondly, the history of this matter shows that it was seen as part of the appellant's professional duty to respond to the complaint by Mr A and to communicate with the patient and his general practitioner, and in due course with the Chief Executive. He was patently expected to respond to the letter from the Patient Relations Manager and the enclosed complaint. Indeed, any surgeon would be expected to explain to a patient what had happened during the course of an operation if something untoward or unexpected had taken place, as the GMC booklet Good Medical Practice indicates. Such an explanation surely is to be regarded as conduct arising from the exercise of his medical skills. The doctor in such a situation is acting in the course of fulfilling a professional responsibility. In the same way, it is part of a consultant's normal responsibility to keep a patient's general practitioner informed of the success or failure of an operation which he has conducted. So the letter of 21st April to the general practitioner is to be seen as arising from the exercise of the appellant's medical skills during the operation.
34. Thirdly, it is to my mind relevant that the allegations against the appellant raised issues which, at least to a degree, needed medical experience or expertise for their determination. I have in mind in particular the appellant's attempted explanation of how he confused the number of units of blood transfused. Despite Mr Douglas' attempts to persuade us to the contrary, it seems to me that some medical experience was required to give proper consideration to that proffered explanation. The internal disciplinary procedure does not necessarily involve anyone with medical experience determining such an issue. The independent procedure under the Circular does. That too points towards the proper categorisation of the allegations here.
35. For these reasons, I conclude that, applying the definition in the Circular, the allegations in this case fell into the category of professional conduct and that was the appropriate machinery to be used. In my judgment, therefore, the Employment Tribunal went wrong in concluding that the respondent had followed the proper procedure, as did the Employment Appeal Tribunal.
36. I would allow this appeal and quash the decision of the Employment Appeal Tribunal. In my judgment, this matter should be remitted to an Employment Tribunal to reconsider the complaint of unfair dismissal on the basis that the respondent Trust employed the wrong procedure when deciding to dismiss Mr Skidmore.
37. SIR CHRISTOPHER SLADE: I agree and concur in the form of order proposed.
38. LORD JUSTICE ALDOUS: I also agree.
ORDER: Appeal allowed; order of the Employment Appeal Tribunal and the Employment Tribunal set aside; matter remitted back to an Employment Tribunal; Respondent to pay the Appellant's costs of the appeal. (Order not part of approved judgment)