QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of MR RAJIV PURI
|- and -
|BRADFORD TEACHING HOSPITALS NHS FOUNDATION TRUST
Mr John Bowers QC and Mr Mark Sutton (instructed by Beachcroft LLP) for the Defendant
Hearing dates: 28 and 29 March 2011
Crown Copyright ©
Mr Justice Blair:
"We formed the opinion that Mr Puri is a perfectionist and constantly strives to do his best for his patients and to ensure as far as possible that they get the best treatment and outcome. He is intolerant of others working with him who fall short of his high expectations and lacks insight into how his behaviour and attitude is perceived by and affects other members of the team, particularly junior nursing staff who may misinterpret his demand for perfection at all times as personal criticism and harassment. His behaviour seems to go beyond the norm of what is usual, even in the stressful environment of theatre. Professor Neal's opinion supports this view. He also seems unaware of the effects his behaviour and demands have on the wider operating theatre environment and indeed feels that this is not his concern.
We found no evidence that Mr Puri's attitude or behaviour adversely affected the clinical quality or outcomes of his surgery and have not been made aware of any complaints of a clinical nature against him. Several witnesses emphasised their admiration for his skill and competence as a surgeon and that he always has his patient's best interests at heart.
It was clear during the course of the investigation that there was poor and ineffective communication at all levels concerning the staffing and running of Mr Puri's theatre lists. Requests by Mr Puri for clarity and personal meetings over his concerns about repeated late list starts went largely unanswered. It was also clear that there were not always preoperative checks on Mr Puri's lists. Had such a check, which is integral to the Trust's Correct Site Surgery policy, been followed on the morning of 20/02/09 then we believe the situation would have been avoided. We feel that these communication issues need to be addressed as a matter of priority.
Not withstanding the excellent clinical service provided by Mr Puri, having considered the evidence both written and verbal presented to us during this investigation it is our belief that the practitioner's behaviour and attitude has contributed to the formation of a dysfunctional service and unacceptable stress and anxiety to hospital staff over a protracted period of time. Therefore it is our recommendation that the Case Manager considers making the practitioner the subject of a misconduct hearing."
"The Committee has considered the particulars of the allegation, contained within Annex A of the Rule 7 letter, and has found that in a number of instances you did raise your voice towards nurses, managers and your secretary, both in the past and in the most recent incidents in 2009. Furthermore the Committee considers that on the balance of probabilities you approached at least one witness involved with the Trust's investigations in an attempt to discuss the progress of said investigation, but was not convinced that you put your arm around her.
The Committee does not consider that you were issued with a warning on 28 January 2005 in the formal sense and considers that you were only given advice regarding your actions. However, it is accepted that on 18 June 2007 and 30 July 2007 you were notified by the Chief Executive that any future questions of conduct and behaviour would be dealt with formally.
The Committee notes that you have made a number of admissions relating to your actions, although not in the exact terms of the allegation, and that you accepted that your actions had been completely inappropriate.
However the Committee accepts that you apologised to individuals shortly after the incidents and that you have demonstrated genuine insight into your actions. The Committee also accept that you have sought to remedy your failings and have sought to control your negative reaction to stress.
The Committee considers your actions to have been inappropriate, unprofessional and a breach of GMP. However, while not condoning your actions, the Committee does acknowledge the work related stress you were under and does not consider your actions to be a significant departure from GMP.
Therefore in the Committee's view, having taken all the circumstances into consideration, your actions did not meet the threshold for a warning as set out in paragraph 13 of the guidance on warnings. It would encourage you to take further steps to ensure that you always comply with paragraphs 41 and 46 of GMP to prevent any repetition of your actions.
The Committee has also given consideration to the recent testimonials which speak highly of your clinical skills, team working and professionalism.
The Committee is satisfied that a warning would not be an appropriate or proportionate response in this case and directs that no further action be taken."
(1) Is Article 6 engaged - were the disciplinary and appeal proceedings determinative of the claimant's civil rights and obligations?
"I recognise the force of the submission made by [counsel for the claimant] that it appears unsatisfactory for the decision as to whether Article 6 applies to disciplinary proceedings against hospital practitioners to be taken on a case by case basis, depending on the gravity of the charge, the prospect of the proceedings resulting in dismissal and/or the evidence about the practitioner's chances of obtaining alternative employment in the event of dismissal. As he said, this would lead to inevitable uncertainty as to whether Article 6 was engaged in any individual case. It seems to me arguable that the wide range of individual circumstances covered by the disciplinary procedures militates against a finding that Article 6 is engaged in relation to disciplinary proceedings taking place pursuant to MHPS. In any event, I do not consider that the claimant's case falls within the type of exceptional circumstances envisaged by Smith LJ and I find that Article 6 did not apply."
The point being made is that if the question as to whether Article 6 applies to disciplinary proceedings against hospital practitioners has to be taken on a case by case basis, uncertainty will result. In the present case (which unlike Hameed is a judicial review), for example, there was considerable disagreement over the conclusions to be drawn from the evidence about the claimant's prospects of obtaining alternative employment, which is essentially a factual question.
"… Now, little if any light is thrown on the case by the bare assertion that article 6 "civil" is engaged in the disciplinary process. It is necessary to be clear as to the precise nature of the claimant's civil right said to engage it. I apprehend that the governors and the Secretary of State would contend that the only civil right potentially in play was the claimant's contractual entitlement, so far as it went, to remain in his current employment at X School. If that is right, it is not I think suggested (and if it were, the suggestion would very likely be mistaken) that article 6 required that the claimant be allowed the opportunity of legal representation in the disciplinary proceedings."
Thus Laws LJ was concerned to identify the particular issue to be determined, which in that case was the opportunity of legal representation in the disciplinary proceedings, which would not, he said, be required by Article 6 if the only civil right potentially in play was the claimant's contractual entitlement to remain in his current employment at X School. He continued:
"We are therefore concerned with the question—the first of the two questions I shall consider—whether the disciplinary proceedings were a determinant of a different civil right, namely the claimant's civil right generally to practise his profession as a teaching assistant. That this is a civil right for the purposes of article 6 is uncontroversial (it was established by Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1), but it is clearly distinct from the claimant's entitlement to remain in his current employment."
"In my view the effect of the learning … is that where an individual is subject to two or more sets of proceedings (or two or more phases of a single proceeding), and a "civil right [or] obligation" enjoyed or owed by him will be determined in one of them, he may (not necessarily will) by force of article 6 enjoy appropriate procedural rights in relation to any of the others if the outcome of that other will have a substantial influence or effect on the determination of the civil right or obligation. I do not mean any influence or effect which is more than de minimis: it must play a major part in the civil right's determination. I do not intend a hard and fast rule. Principles developed by the Strasbourg court for the interpretation and application of the Convention tend not to have sharp edges; as I have said, the jurisprudence is generally pragmatic and fact-sensitive. The nature of the right in question may make a difference. So may the relative authority of courts, tribunals or other bodies playing their respective parts in a case, such as the present, where connected processes touch a Convention right."
The law applied to the facts of the case
(2) If Article 6 was engaged, was the disciplinary panel/proposed appeal panel independent and impartial so as to comply with Article 6?
The parties' contentions
Discussion and conclusions
(1) I accept the claimant's submission that the Trust's Policy and Procedure modelled on MHPS makes it plain that decision making should be impartial and fair. Any other result would plainly be unacceptable. (As the claimant points out, the involvement of NCAS is an aspect of this, since NCAS is not concerned to take sides in the matter.)
(2) A key aspect (as indeed the claimant's argument emphasises) relates to the perception of bias. In this regard, it has been held that the common law test of bias as set out in Porter v Magill  2 AC 357 and the requirements under Article 6 are the same. In Lawal v. Northern Spirit Ltd  IRLR 538, the House of Lords held at :
" … Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53, by Kirby J when he stated that "a reasonable member of the public is neither complacent nor unduly sensitive or suspicious" (Lord Steyn).
(3) In Ali v Belfast Health and Social Care Trust  NIQB 143, a case involving a consultant cardiac surgeon, the issue was the right to legal representation. At , McCloskey J referred to the golden rule which must be observed at every stage of the process as being that of fairness. He said: "….any tendency to overlook, or undervalue, the independence, professionalism, integrity, experience and expertise of the members of the Disciplinary Panel in this kind of case must be firmly resisted". This is consistent with authority that a connection with, or even employment by, a party to the proceedings does not necessarily disqualify a decision maker by virtue of apparent bias: see R (on the application of PD) v West Midlands and North West Mental Health Review Tribunal  EWCA Civ 311, approved by the House of Lords in Gillies v Secretary of State for Work and Pensions  1 WLR 781.
(4) The claimant submits that the presence of one independent member of the panel is not enough to negate the inevitable bias created by the majority internal members. Reliance is placed on R ...Beeson) v Dorset County Council  HRLR 15 where at  Richards J said: "It is common ground that the impugned decision was not taken by an independent and impartial tribunal within the meaning of Article 6(1). The complaints procedure by itself was inadequate to secure the requisite degree of independence and impartiality. There was only one independent member of the panel, the other two members of the panel being members of the defendant council." However, it is to be noted that on appeal at  EWCA Civ 1812,  HRLR 11, Laws LJ said at :
"In this present case we have seen no evidence that the panel could not or would not arrive at a fair and reasonable recommendation. It is by no means to be assumed that the two Council members would have entertained, even subconsciously, a disposition towards the protection of Council funds. To this Mr Drabble's reply … is in substance that actual bias is not required to show a violation of Art.6. That is of course right; but it seems to us to miss the real point in issue here, namely whether, given the quality of the first-instance process such as it is, the addition of judicial review satisfies Art.6. If there is no reason of substance to question the objective integrity of the first-instance process (whatever may be said about its appearance), it seems to us that the added safeguard of judicial review will very likely satisfy the Art.6 standard unless there is some special feature of the case to show the contrary. Here there is not."
(5) The reference in this passage to "the added safeguard of judicial review" is demonstrated as regards the procedures adopted in this case. The Chief Executive stood down from the disciplinary panel when asked to do so by the claimant, and was replaced by the Chairman of the Trust. The court can require such action where appropriate. In Mezey v SW London and St Georges Mental Health NHS Trust (2)  EWHC 3340 (QB), Underhill J made it clear that (given the erroneous terms of a letter that had been written by him) the Chief Executive in that case should not sit on a disciplinary panel on the basis of apparent bias. In the present case, on 28 October 2009 the Trust wrote to the claimant's solicitors confirming that legal representation would be permitted at his appeal hearing, in line with the decision of the Court of Appeal in Kulkarni. (No request had been made for legal representation before the disciplinary panel, before which the claimant was represented by the BMA.)
(6) The disciplinary panel included among its three members a doctor who was not associated in any way with the defendant Trust (Mr Keith Parsons, Consultant Urologist at the Royal Liverpool Hospital). A further source of independent input came from that aspect of the procedure which allowed for an "external speciality advisor" (Professor David Neal, Professor of Surgical Oncology at the University of Cambridge). His task was not a fact finding one, but to comment on what would be usual accepted behaviour should the allegations be proved.
(7) Finally, and significantly in my judgment, the MHPS procedures followed in this case were (as described above) relatively recently put in place following a collective agreement between the Department of Health, the NHS Federation (representing the employing authorities) and the British Medical Association and the British Dental Association (representing practitioners). The new procedures which have gone into effect across the country are intended to address perceived injustice to practitioners that had apparently resulted from the previous system. The BMA is (as has been pointed out) a powerful body, and it can be inferred that the system which has been put in place has been carefully balanced so as to give proper protection to doctors, who need such protection not least because of their vulnerability to vexatious or ill informed complaints. The court should be slow to hold that a system of this kind fails to comply with Article 6 in the fundamental respect advanced by the claimant in this case.
(3) If Article 6 is engaged and the disciplinary panel did not comply with Article 6, did the claimant waive his right to Article 6 compliant disciplinary panel?
(4) Did the Trust give adequate reasons for its decisions?