England and Wales High Court (Queen's Bench Division) Decisions

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Cite as: [2007] IRLR 237, [2007] EWHC 62 (QB)

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		Neutral Citation Number: [2007] EWHC 62 (QB)
		Case No: HQ06X03698

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

9 January 2007

B e f o r e :

MR JUSTICE UNDERHILL
____________________

	GILLIAN CLARE MEZEY	Claimant
	- and -
	SOUTHWEST LONDON & ST GEORGE'S MENTAL HEALTH NHS TRUST	Defendant

____________________

MR JOHN HENDY QC (instructed by Messrs Radcliffes Le Brasseur) appeared on behalf of the Claimant
MR M SUPPERSTONE QC (instructed by Messrs Capsticks) appeared on behalf of the Defendant/Applicant
____________________

HTML VERSION OF JUDGMENT
____________________

MR JUSTICE UNDERHILL:

(see: [2006] EWHC 3473 (QB) )

I gave judgment on this application for interim relief on 20 December 2006 and left the parties to seek to agree an order reflecting the terms of my judgment. Unfortunately, there are some points which they have been unable to agree and which I now have to resolve.

The principal point at issue is the nature of the distinction between the clinical duties, which the claimant accepts that she should not undertake pending the outcome of the disciplinary procedures, and the non-clinical duties which I held that she should be entitled to continue to carry out. The Trust apparently understood me to mean that the claimant could not undertake any duties which related in any way, even if indirectly, to the treatment of patients. The claimant, by contrast, has from the start made clear that she accepted only that she should not be involved in the actual treatment of individual patients and that she believed that she should be entitled to take part in all her other duties at the Trust, in which she had been involved without difficulty for the two-year period between the unfortunate death of Mr Finnegan and her eventual suspension, including such matters as training responsibilities and clinical audit.

I believe that it should have been clear from the terms of my judgment that I accepted the claimant's case in this regard. I quoted the passage from her witness statement in which she expressed her wish to perform such duties and the opinion that they involved no risk to patient care, which I have identified as one of the key criteria justifying suspension; and I pointed out that there was no evidence from Mr Houghton to rebut what she said.

In any event, if my judgment was not sufficiently clear, let me make it clear now. My decision, albeit necessarily on an interim basis, was and is that the Trust may not to suspend the claimant from her duties, except to the extent that those duties involved responsibility, in full or in part, for decisions to be made in the case of individual patients. I appreciate that there is no absolute logical distinction here. Criticisms of a consultant's clinical decisions in a particular case could, in principle, bring into question not only whether he or she should be relied on to treat individual patients safely but also their judgment on policy questions having a clinical component. However, on the approach adopted in my judgment, there remains a real distinction between risk to individual patients on the one hand and, on the other hand, other possible consequences of a question mark over a consultant's judgment. The fact that as a matter of prudence it may be right to restrict his or her activities as regards the former does not mean that it is necessarily right to restrict their activities as regards the latter; and, on the facts of the present case, it seems to me that, given the nature of the allegations against the claimant, the idea that she cannot safely be allowed to take any part in any activities which may to some extent draw on or involve her experience as a clinician is unreal.

The Trust's solicitors have in their letter of 5^th January 2007 raised, apparently on Mr Houghton's instructions, various objections to the claimant carrying out different kinds of non-clinical duty. None of the objections in question was raised in his evidence, or indeed in submissions at the recent hearing, and it would be wrong for me to allow them to be introduced now. As I pointed out in the judgment, the Trust had an adequate opportunity to provide its reasons fully in evidence on that occasion. Since my order is interim only, if there has been a truly compelling objection, I might, I suppose, have been obliged to reconsider, however little excuse there was for the points in question not being taken before; but none of the points raised in the letter came close to being in that category.

It follows that I propose to adopt the formulation of the undertaking offered by the claimant which appears in the draft submitted on her behalf. That is the principal point which I have to decide.

There has been a detailed exchange of correspondence between solicitors as to the particular tasks which the claimant ought or ought not to be permitted to perform. I do not think that it would be right for me to try to adjudicate on the disputed items one by one: even if I had the time, I do not have sufficiently detailed information. But I believe that the terms of this further judgment ought to make the answer pretty clear in most, if not all, the disputed instances. I did in fact make some observations in the course of argument which I hope may be helpful, but they should not be treated as definitive. In particular, although I expressed the view that there might be a grey area about whether the claimant's training responsibilities as regards Registrars or her involvement in clinical audit might involve care of individual patients, if the position is indeed as expressed in Radcliffes' more recent letter it would seem to me adequately clear that there is no real grey area here.

If, however, even after this further judgment the parties really cannot agree about what activities the claimant should be entitled to continue to carry out, it will be necessary for the matter to come back before me or another judge under the liberty to apply, with a clear indication of the nature of the dispute and proper evidence supporting it. It goes without saying that I would regard it as highly regrettable if that turned out to be necessary. I repeat my strong hope that the parties, with the benefit of this further clarification, can now work constructively together to reach a sensible way forward with which they can both live. I was, I confess, a little dismayed at the hard line adopted in the Trust's solicitors' letter of 5 January 2007, which did not seem to me to show a real appreciation of the reasoning behind my decision; but I am prepared to put that down to a lack of clarity in the decision itself - the parties of course did not at that stage have a transcript - and I hope that in future, now that any room for misunderstanding has been removed, the parties will feel able to cooperate and not adopt a confrontational attitude towards one another.

As regards the other terms of the order, I have expressed the view - and Mr Hendy for the claimant has accepted - that para. 1 in the draft is unnecessary.

As regards para. 2, a little redrafting is necessary as a result of the removal of para. 1, and there is, in addition, a question as regards whether any order should be made in relation to the claimant's teaching and research responsibilities at the St George's Hospital Medical School. I accept Mr Supperstone's statement that the Trust would not attempt to direct what should happen in relation to those responsibilities; but it seems to me nevertheless that, given the terms of the letter of suspension which (albeit perhaps by misunderstanding) appeared to do so, it is prudent that something should appear in the order to make the position clear. On that basis, I would propose that para. 2 in the order, which will become para. 1, will simply be expressed as follows: "The defendant be restrained, whether by itself, its servants, its agents or otherwise howsoever, from acting on the purported suspension of the claimant, communicated to her orally and confirmed in writing by Mr Houghton on 23 November 2006, or treating it as valid (including for the avoidance of doubt any attempt to restrict her teaching or research responsibilities and the St George's Hospital Medical School)."

Paras. 3 and 4 of the order go out. There will, however, be a fresh para., which is that "The defendant by no later than close of business on Friday, 19 January 2007, supply the further information requested by the claimant's solicitors sought in the claimant's request dated 5 January 2007."

The remaining paragraphs can remain unchanged.