England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/10/2010

The Honourable Mr Justice Underhill:

INTRODUCTION

1. There are two cases before me. Both concern doctors who are the subject of disciplinary proceedings. I can set out the essential background leading to the issue of the proceedings in each case as follows.
2. Dr. Loizou

(1) Dr. Loizou is a consultant neurologist employed by the Mid-Yorkshire Hospitals NHS Trust at the Pinderfields Hospital in Wakefield. He was at the material times Lead Clinician for the Trust in the field of multiple sclerosis. He is aged 64 and due to retire from his position with the Trust by no later than 6^th November 2010; but he wishes and intends to continue to practise thereafter, though on a part-time basis.

(2) On 10^th October 2008 the Trust's Professional Advisory Panel advised, with the concurrence of the National Clinical Audit Service ("NCAS"), that an investigation was warranted into various issues concerning Dr. Loizou's conduct and capability under the procedures contained in the Department of Health document somewhat unwieldily entitled Maintaining High Professional Standards in the Modern NHS ("MHPS"). I do not need to go into detail about the allegations which were said to require investigation. It is enough to note that the original concerns included some criticisms of Dr. Loizou's professional performance, including alleged inadequacies in his training of registrars; but that over the period of the investigation, which was prolonged, the focus shifted to what were essentially matters of pure conduct. There was a short period in which Dr. Loizou was "excluded" from performing his duties. The initial investigator was the Assistant Medical Director, Dr. Nagar.

(3) It was not until 2^nd December 2009 that Dr. Loizou was notified that the investigation was concluded and that the Medical Director of the Trust, Prof. Hendra, intended to refer a number of allegations to a Professional Conduct Panel under the MHPS procedures. The allegations in question were itemised under four headings, but they are essentially twofold. Allegations (i) and (ii) concerned Dr Loizou's private practice: it was said that he undertook private practice when on call for the Trust and when timetabled to do NHS work. Allegations (iii) and (iv) concerned a long running dispute between Dr. Loizou and the Trust about his annual "job plan": it was said that he had "failed to engage" in the job planning process, with the result that no job plan was agreed and a state of affairs was allowed to continue under which he was being paid for more hours than he was in fact working. He was told that if the allegations were proved they could constitute gross misconduct and result in his dismissal.

(4) On 7^th December 2009 Dr. Loizou was sent a letter inviting him to a professional conduct hearing to be held on 21 January 2010. He was told that the members of the panel would consist of the Trust's Chief Executive and Director of Human Resources, together with the Medical Director of a different Trust: it would thus be a majority "internal" panel.

(5) On 14^th January 2010 Dr. Loizou issued the present proceedings seeking to challenge both (a) the decision of 2^nd December 2009 initiating disciplinary proceedings; and (b) the decision of 7^th December 2009 as to the constitution of the panel. I shall have to deal below with the grounds of challenge to the former decision, but, as regards the latter, his straightforward point was that a panel of which the majority were Trust employees could not be regarded as impartial.

(6) On 20^th January 2010 Calvert-Smith J. made an interim order restraining the Trust from proceeding with the disciplinary proceedings pending the resolution of these proceedings or further order; and no further steps have been taken in them.

3. Mr Puri

(1) Mr. Puri is a consultant urologist employed by the Bradford Teaching Hospital NHS Foundation Trust, until his dismissal with effect from 9^th December 2009, primarily at Bradford Royal Infirmary.

(2) Following a disciplinary investigation under the MHPS procedures, on 2^nd October 2009 there was a hearing before a disciplinary panel of various charges against Mr. Puri of misconduct. These essentially concerned aggressive and rude behaviour towards other hospital staff. As in Dr. Loizou's case, the panel was composed of one Trust employee, one non-executive of the Trust and one external member. Mr. Puri objected to the presence of the Chief Executive, but his objection was rejected and the hearing proceeded.

(3) On 9^th October 2009 Mr. Puri was notified that the decision of the panel was that he should be dismissed with immediate effect (although he was given three months' pay in lieu of notice).

(4) Mr. Puri appealed. On 26^th November he was given details of an appeal hearing to take place on 22^nd December. The panel would consist of two employees of the Trust and one non-executive director. He again protested about the composition of the panel, and the hearing was postponed.

(5) On 19^th February 2010 Mr. Puri issued the present proceedings seeking to quash both the original dismissal decision of 9^th October and the decision as to the composition of the appeal panel.

4. Both cases were considered by Treacy J. on the papers on 17^th May 2010. In relation to Dr. Loizou's case, he refused permission on the first decision challenged – that is, the decision to bring disciplinary charges – on the basis that the grounds of challenge were not arguable, but he gave permission in relation to the challenge to the second decision – that is, as to the composition of the panel. In relation to Mr. Puri's case, he refused permission as regards the original disciplinary decision on the basis that the proceedings were issued out of time; but he allowed it in relation to the issue of the composition of the appeal panel. He ordered the substantive hearings in the two cases to be listed together, since they raised essentially the same point albeit in relation to different stages of the procedure. I should say at this stage that although Dr. Loizou and Mr. Puri have instructed different solicitors, those solicitors have from the start instructed the same junior counsel, Mr. Giles Powell.
5. What is before me is not, regrettably in view of the time already passed, the hearing of the substantive issue, but rather renewed applications for permission by the Claimant in each case in relation to the part of the claim for which Treacy J. refused permission, together with various applications for directions. Mr. Powell appeared for both Claimants and Mr. John Bowers QC for both Defendants. I take first the renewed permission applications in each case.

DR. LOIZOU

6. The basis of Dr. Loizou's challenge to the decision of 2^nd December 2009 is set out at great length in the Claim Form, but as formulated in Mr. Powell's skeleton argument and oral submissions before me it has essentially two elements.
7. The first point is procedural. What is said is that the Trust did not properly involve the NCAS in the investigation process, as required by MHPS. It is clear that MHPS does indeed provide for Trusts investigating concerns about the performance or conduct of hospital doctors to seek the assistance of NCAS. It is not necessary for me in this judgment to review the various provisions of MHPS referring to the role of NCAS. I would observe that the drafting is discursive in character and does not lend itself particularly well to the creation of precise legal obligations; also that the emphasis is, as one would expect, mostly on the assistance that NCAS can give in cases where the Trust is concerned about clinical performance or capability, particularly where the contentious issue arises of excluding the doctor from practice while investigations proceed. Nevertheless I would accept that it is at least arguable that even in a case of alleged misconduct, without any clinical or performance element, and where no question of exclusion arises, a Trust is obliged to involve the NCAS before proceeding to disciplinary charges.
8. It is, however, in my judgment clear beyond argument that, whatever the precise scope of the Trust's obligations in this regard, they were satisfied in the present case. There were a series of communications between the Trust and NCAS throughout the autumn of 2008 and early 2009 about Dr. Loizou's case, recorded in full and careful letters from NCAS. Mr. Powell accepts this, but his criticism is that the discussion is principally concerned with elements of the case against Dr. Loizou which did not in the end proceed and that it does not appear that NCAS was ever fully briefed, or its views sought, about the matters which formed the basis of the eventual charges. As to that, the position can be summarised as follows. It is clear from a letter from NCAS dated 12^th January 2009 that it was by that date well aware that the Trust was no longer investigating issues of "clinical performance" but that its concerns now centred on Dr. Loizou's conduct, and specifically on the allegation that he had been undertaking private work in time for which he was being paid by the Trust. The letter records a discussion about how any such concerns should be handled procedurally: the effect of NCAS's advice was that a purely "conduct" matter of that kind could appropriately be dealt with under the Trust's disciplinary procedure. A later letter from NCAS dated 16^th March 2009 recorded that since that was the route which the Trust now proposed to take NCAS need have no further involvement and that the case was now, from its point of view, closed – though the Trust should consult it further if capability issues arose or if exclusion was contemplated. That approach is entirely consistent with what one would expect to be NCAS's conception of its role and with the broad thrust of the relevant provisions of the MHPS. Mr. Powell is right to say that there is no evidence that NCAS was consulted specifically about the "job plan" allegations. However, there was in my view clearly no need for it to be. It had made it clear that it was content to leave matters of pure conduct to be pursued through the disciplinary procedure. The fact that another conduct allegation had emerged could make no difference.
9. The second limb of the Claimant's case is more concerned with substance. In essence, he submits that the charges against him are so demonstrably ill-founded that they could not reasonably have been judged to require a disciplinary hearing, and that the fact that they were nevertheless pursued was the result of an animus against him on the part of those responsible for the investigation, primarily Dr. Nagar. As regards the private practice allegations, Mr. Powell took me to documents which he said demonstrated that the Claimant had always been entirely open about the conduct in question, that the Trust had known that he – and other consultants - had believed they were acting properly and that no objection had been taken; so that even if it was technically wrong – which he did not accept – no question of misconduct could arise. As regards the job plan allegations, Mr. Powell took me through at least the outline of what was a complex story, with a view to showing, again, that Dr. Loizou had always acted entirely openly and that in fact procedurally the ball had been in the Trust's court – more particularly, that he had appealed against the most recent job plan proposal and that it had been the Trust's decision not to process the appeal. Nor, although the job plan had (through the Trust's fault) got out of synch with his actual work, had he ever been paid for more hours than he had worked. The Claimant sought to bolster his case by reference to the decision of an Employment Tribunal promulgated in June this year – Michalak v Mid Yorkshire Hospitals NHS Trust. In that case some of the same actors – and in particular Dr. Nagar – were involved in the decision to discipline another doctor employed by the Trust and were held to have acted grossly unfairly: swingeing findings of dishonesty and collusion were made against Dr. Nagar and others.
10. I do not need to review the Claimant's case in this regard in any further detail because I am satisfied that it is not an appropriate case for determination by way of judicial review, and certainly not at this stage. My fairly strong provisional view (though there was not the opportunity to explore this question fully) is that the decision to initiate disciplinary proceedings in Dr. Loizou's case had no public law element, and that if it was ill-founded or malicious his remedy is in private law proceedings. But even if it was in principle suitable for judicial review under CPR 54, or if – as was floated - I considered using my power under CPR 54.20 to transfer the case to the Queen's Bench Division, I do not believe that it would be right for the claim to be resolved until the disciplinary proceedings have been heard. The primary forum for deciding whether charges are ill-founded should ordinarily be the tribunal before which they are brought. It would be highly undesirable if this Court were treated as a route by which a decision of the appropriate forum could be pre-empted. I say "ordinarily" because I accept that where the proceedings are vitiated by some fundamental procedural flaw – as in Mezey v South West London & St George's Mental Health NHS Trust [2010] IRLR 512 - they should not be allowed to proceed at all. But this is not a case of that kind: the essential flaw relied on is simply that the case is said to be ill-founded or influenced by improper motives on the part of the investigators – but if that is so, a fair disciplinary panel will no doubt dismiss the charges. (The fact that there is an issue, of a quite different character, about whether the proposed panel will indeed be, or reasonably be seen to be, fair is for present purposes irrelevant. If in due course it is held that it will not be, the hearing will have to be before a panel which is.) I accept, and Mr Bowers conceded, that there might be a case where disciplinary proceedings were so patently brought in bad faith that a Court would feel justified in preventing them even proceeding to a hearing. But, again, this is not such a case. Mr Powell submitted that it could be demonstrated that Dr. Nagar promoted the private practice charges knowing that no question of misconduct could arise and was thus acting in bad faith, and that Prof. Hendra's decision was tainted in consequence. Other, though less emphasised, allegations were made against other individuals. I do not however think that, even taking into account the Tribunal's findings in Michalak, that is a decision that could properly be taken without a full trial; and the fact that such an allegation is made cannot be a reason for deferring the disciplinary hearing. I emphasise that it is no part of my reasoning that the Claimant may have no remedy for the bringing of disciplinary proceedings in bad faith: I say only that he should not be permitted to pursue a remedy by way of judicial review or, at least in the present case, before any disciplinary hearing has taken place.
11. For those reasons I announced in the course of the hearing that I did not intend to give permission to apply for judicial review of the decision of 2^nd December 2009. I did not, however, think it right definitively to refuse permission. Instead, I adjourned the issue until after the conclusion of the disciplinary proceedings. I frankly think it unlikely that it will be appropriate to revive these proceedings at that stage. As I have already indicated, whatever the nature of any remaining or fresh issues at that stage, my provisional view is that they are likely to be appropriate for ordinary proceedings in the High Court rather than under CPR 54. But I am content to leave matters open in case there may be procedural or costs advantages in pursuing any further proceedings from the platform of the present claim, whether by means of CPR 54.20 or otherwise.
12. I wish to make one further observation. While Mr. Powell did not persuade me that this was a proper case for granting permission to apply for judicial review, the exercise of taking me through the correspondence on the "job plan" question did lead me to have some concerns about whether the Trust had slipped into treating as a disciplinary matter what was really a dispute about terms and conditions. If all that in truth we have here is a situation where Dr Loizou on the one hand and the Trust on the other have, perfectly openly, taken different stances about a complicated HR question, then however wrong the Trust may believe Dr Loizou's stance to be - though I should not be taken as expressing any view about that - that would not in itself give rise to any question of misconduct. It would be different of course if he were to have acted dishonestly, either positively or by omission, or to have disobeyed a clear instruction or acted in some other way discreditably; but it was not entirely clear to me that that was the gravamen of the relevant charges. I was shown less documentary material on the private practice charges, but at least in principle there is a risk of the same thing happening. I must emphasise that I had only the opportunity for a superficial view, and indeed a one-sided one, since because of the view I took, as set out in the preceding paragraphs, I did not encourage Mr. Bowers to answer Mr. Powell on these aspects. It may well, therefore, be that my concerns are ill-founded. In any event these are ultimately, for the reasons I have given, matters for the disciplinary panel, which will have to reach its own decision on the material and arguments before it: I should not be understood to be even hinting at what I think their decision should be. But I have nonetheless thought it worth voicing my provisional concerns in case the Trust wishes to consider at this stage taking a further look at the charges in the light of the points made by Mr. Powell, which its counsel and solicitors will of course have noted. If it remains satisfied that the charges are appropriate, well and good. But if it has second thoughts it may be better to give effect to them now than to be committed to the very substantial costs in money and management time that their further pursuit will involve.

MR. PURI

13. The only issue as regards the challenge to the composition of the original disciplinary panel in Mr. Puri's case is whether time should be extended: it follows from the decision to grant permission in relation to the composition of the appeal panel that the underlying point is one which merits permission. Mr. Powell acknowledges that the challenge is out of time. Even if time runs from the date of the hearing itself on 2^nd October, or indeed the announcement of the decision a week later, proceedings were issued some six weeks or more too late. (It is in fact arguable that time in fact started running when he was first notified of the composition of the panel, which was in mid-August; but in the circumstances of this case nothing turns on the difference.) The delay is also somewhat aggravated by the fact that Mr. Puri did not move very promptly even to challenge the composition of the appeal panel. He was aware of the Trust's intention as early as 26^th November, and a pre-action protocol letter was written on 14^th December; but proceedings were not issued for almost another three months.
14. The question for me is thus squarely whether I should extend time under CPR 3.1(2)(a). After careful reflection I have decided that this is a proper case for an extension. I acknowledge that no good reason for the missing of the time limit has been shown: Mr. Powell frankly acknowledged that his legal advisers had simply failed to appreciate that the original decision and the appeal decision attracted separate limits. I also bear in mind the further delay in challenging the appeal decision which is referred to above. But there are broader considerations. The issue raised by Mr. Puri's challenge as permitted to proceed by Treacy J. is an important one: if his point is good it will on the face of it apply to all disciplinary proceedings conducted under the MHPS procedures anywhere in the NHS. It would be both artificial and unsatisfactory if the Court's consideration of that issue were confined to the question of the composition of appeal panels. Although at first blush it would seem that the conclusion in relation to an appeal panel would apply equally to a first-instance panel, it is not impossible that distinctions could be sought to be drawn; and in my view it is highly desirable that the Court should have before it the issue of the proper composition of the panel at both levels. (It is true that the question of the composition of the first-instance panel is raised in Dr. Loizou's claim, but that is happenstance; and although the probability may be that that claim will continue, that cannot be guaranteed.) As to prejudice, the Trust in its Summary Grounds referred briefly to the risk of memories fading and staff moving on; but no more particular point was made and Mr. Bowers did not address me on this aspect. In this regard too I should note that I was told, albeit in connection with a slightly different point, that in principle appeals under the MHPS procedure are in the nature of full re-hearings, so that witnesses may be required at the appeal hearing: this is not therefore a case where it could be said that the Trust's witnesses could, if I had not extended time, have counted on their evidence being taken once and for all at the hearing in October 2009. No other point was taken on prejudice. I do not regard such prejudice as the Trust may suffer if the challenge to the earlier decision is allowed to proceed as outweighing the desirability of the issue of the composition of the panels at both stages of the procedure being before the Court.
15. I accordingly extend time and grant permission to Mr. Puri to apply for judicial review of the composition of the disciplinary panel which sat on 2^nd October 2009.
16. In these circumstances I need not consider a separate submission made by Mr. Powell on the basis that since Mr. Puri's claim rested in part on his claimed rights under art. 6 of the European Convention of Human Rights he was entitled to the benefit of the one-year period prima facie permitted for such claims under section 7 (5) of the Human Rights Act 1996.

DIRECTIONS

17. Although it appeared that the directions sought might be disputed, in the event once I had made my decision as to Dr. Loizou's case they proved uncontentious. I need not therefore seek to explain them here, save to note that Mr. Puri withdrew an application that his claim be heard in Leeds.