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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 June 2018

Pushpinder Saini Q.C. sitting as Deputy High Court Judge:

1. This judgment is divided into 7 sections as follows:

I. Overview.

II. The Facts.

III. Contractual Framework and Gross Misconduct.

IV. Serious Question to be Tried.

V. Adequacy of damages

VI. Balance of convenience.

VII. Conclusion.

I. Overview

2. By Application Notice dated 1 May 2018, the Claimant, Dr. Caroline Jane Ardron ("Dr. Ardron"), seeks an interim injunction pursuant to CPR 25.1.(1) restraining the Defendant, Sussex Partnership NHS Foundation Trust ("the Trust"), from proceeding with a disciplinary hearing where allegations of gross misconduct are to be put to her, and where she faces summary dismissal as a potential sanction. The Trust has employed Dr. Ardron as a Consultant Psychiatrist since 2010.
3. In broad terms, and as explained further below, Dr. Ardron argues that the Trust's proposed conduct will be in breach of her contract of employment on the basis that the findings of fact and evidence to be put to the disciplinary panel cannot, even taken at their highest, support an allegation of gross misconduct. She invokes the principles identified by the Lord Hodge JSC in Chhabra v West London Mental Health NHS Trust [2013] UKSC; [2014] ICR 194 at para.35 (hereafter referred to as "Chhabra") . Dr. Ardron argues that there is a serious issue to be tried as to whether there will be a breach of her contract, damages will not be an adequate remedy, and that the balance of convenience justifies an injunction pending a speedy trial.
4. The Trust opposes injunctive relief and argues that there is ample evidence establishing a case to answer for gross misconduct. It draws attention to the need for the Court to avoid micro-managing disciplinary proceedings and says that the proceedings should be allowed to take their course where Dr. Ardron can take all the points argued before me. The Trust relies upon Chhabra at [39] citing Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2010] ICR 101, at [22]). It argues as a threshold point that Dr. Ardron's application for an injunction fails at the first hurdle because she cannot establish a serious issue to be tried.
5. At the start of the hearing before me it was not clear to me when the proposed disciplinary hearing would in fact take place. Following inquiries from me, the Trust stated that it was hoped the proceedings would start in 2-4 weeks' time. That would mean, at the latest, they would begin on or around 15 July 2018. That date is important because it would not be realistically possible for any speedy trial to take place before 15 July 2018.
6. I should also note at the outset that Dr. Ardron continues at present to perform her duties for the Trust and is not the subject of any form of suspensory action. Until the disciplinary proceedings in respect of which this application is made she had an unblemished record with her employer. She also has an unblemished record with the GMC and the evidence before me indicates she has enjoyed, and continues to enjoy, substantial respect and trust amongst her fellow professionals.

II. The Facts

7. The summary of the facts set out below is based on the witness statements and pleadings submitted at this early stage of the case. I will confine myself to stating those matters which are necessary for me to dispose of the application. I will seek to avoid trespassing on matters which are for the disciplinary process, and in respect of which I anticipate there may be disputes of fact.
8. The immediate background to the disciplinary proceedings is the tragic suicide of a 19-year-old remand prisoner. I will refer to this young man as JO for the purposes of this judgment.
9. Between November 2015 and late January 2016, Dr. Ardron was working as a Consultant Psychiatrist at HMP Lewes which she attended for part of her working week. Her timetable provided for her to attend at HMP Lewes on Wednesdays (the time allocated for the Healthcare Wing in HMP Lewes) and Thursdays.
10. Following a suicide attempt, JO was returned to HMP Lewes on Friday 20 November 2015. On 25 November 2015, he was seen and assessed by Dr Ardron and she recorded in the clinical record that he had recently attempted suicide. As a result of her review, Dr. Ardron sought JO's transfer to a medium secure NHS psychiatric facility and completed a s.48 Mental Health Act 1983 transfer recommendation for that purpose.
11. On a number of occasions after this, Dr. Ardron saw JO in his cell because he was on so-called "restricted unlock" as there were not the prison officers available for him to be examined by her in a conventional way. These meetings were not documented and Dr. Ardron says she was not able record contemporaneous notes on the SystmOne healthcare record because she had not been provided with a computer which was compatible with the prison system in the Healthcare Wing of HMP Lewes.
12. JO's referral and transfer continued to be followed up by Dr. Ardron, particularly after a report of JO attempting to stab an officer in the back. Another psychiatrist, Dr. Hume from the Pavilion PICU, saw him on 5 January 2016 and was told by JO that he was unwilling to accept medication if he remained on the healthcare wing. Dr. Hume also felt he should be admitted to hospital for further assessment.
13. Thereafter JO's case was reviewed by a Dr. Noon (without seeing JO himself) who advised that JO should be admitted to conditions of low security. JO was placed on the waiting list for the Chichester low secure unit but, because there were no beds then available, Dr. Ardron started to liaise about a private placement. Dr. Ardron went on annual leave on 8^th February 2016.
14. While Dr. Ardron was on leave, on 9 February 2016, JO was seen by her colleagues, Dr. Richard Noon and Dr. Helen Maguire (both of whom are forensic psychiatrists) and a further report under the Mental Health Act 1983 seeking his transfer to a low secure NHS facility was provided by them.
15. Before Dr. Ardron returned from leave JO was found dead in his cell at HMP Lewes on 12 February 2016. He had hanged himself.
16. Following a complaint by JO's family, an investigation by the Prison and Probation Ombudsman, and a Serious Incident investigation by the Trust, Dr. Ardron's conduct and capability were called into question. An investigation under the Trust's procedures then began.
17. These procedures require both a Case Manager and a Case Investigator in accordance with the Trust's document Managing Concerns About Medical Staff Policy which implements NHS Guidance HSC 20A3102 "Maintaining High Professional Standards".
18. The Case Manager appointed was Dr. Duncan Angus ("Dr. Angus). He has submitted written evidence before me. By letter dated 20 October 2016, Dr. Angus warned Dr. Ardron that the conduct issues could, if proved, be considered as gross misconduct and a wilful breach of her professional code of conduct or reckless behaviour under the Trust's Disciplinary Policy and Procedure. I will need to return these procedures in more detail below.
19. Terms of Reference (TOR) were set which identified 5 allegations of conduct and 7 of capability. As is explained in the introduction to these TORs, the process adopted followed the local policy which was said to implement the framework set out in Maintaining High Professional Standards in the Modern NHS, to which I have made reference above.
20. Dr. Arjuna Wijetunge ("Dr. Wijetunge") was appointed the Case Investigator to consider and report on the matters of capability and conduct that were referred to him by Dr. Angus. Dr. Wijetunga submitted his Investigation Report to Dr. Angus on 20 November 2017. The Investigation Report summarised Dr. Wiejtunga's conclusions in respect of each of the 13 TORs in Section 11.
21. Following receipt of Investigation Report, Dr. Angus considered its content and took the view that the matters raised were matters of conduct rather than capability. They covered what he regarded as serious failings in the following areas (in summary): Dr. Ardron's attendance at ward rounds; clinical assessment, formulation, and treatment planning; on-going assessments and ongoing management of risk; on-going clinical reviews of the patient; record keeping; and provision of clinical and professional leadership.
22. On 27 February 2018, Dr. Ardron was notified that she was required to attend a formal disciplinary hearing. On 20 March 2018, she was informed by the Chief Operating Officer of the Trust that the hearing would take place on the 10 April 2018 and that the matters that would be considered were allegations of negligence, wilful breach of professional codes of conduct, and breach of trust and confidence which were gross misconduct within the Trust's Disciplinary Policy and Procedure. She was also told that these proceedings could result in her summary dismissal.
23. On 20 April 2018, the Trust served a Management Statement of Case (MSoC) dated 19 April 2018. This was essentially the pleaded disciplinary case against Dr. Ardron and had been prepared by Dr. Angus as he describes in his witness statement of 11 June 2018.
24. In terms of structure, the MSoC reviewed Dr Wijetunge's Investigation Report and reached conclusions in relation to the 13 Terms of Reference ('TOR'). In the introductory paragraphs to his review of the terms of reference, Dr Angus states that: "following receipt of the Case Investigator's report and after careful consideration of its contents I have formed the view that it is reasonable to conclude (based on the evidence obtained) that my initial considerations that there may be capability issues were not the case. I have expanded further on this below with respect to individual elements."
25. The Management Statement of Case (to which I will need to return below) therefore appears to proceed on the basis that all the issues which are being taken forward to the panel are now solely "conduct" issues (not "capability" issues). Further, these conduct issues are said to be capable of amounting to 'gross misconduct' justifying summary dismissal. The Management Statement of Case alleges:

"…it is clear that in not complying with the GMC's Good Medical Practice and Good Psychiatric Practice, the conduct of [Dr. Ardron] as evidenced by the [Investigation Report], falls short of good practice in a number of areas. All of which amount to gross misconduct, in that it is capable of being determined to be wilful or grossly negligent"

26. By this stage pre-action correspondence had been exchanged. The proposed disciplinary hearing did not take place, and the present proceedings were issued on 1 May 2018 together with the application for an injunction which is now before me. There is no suggestion before me that the Claimant has been slow in issuing the injunction application or that it should be refused on delay grounds.
27. As indicated above, the Trust hopes to hold the disciplinary proceedings on or around 15 July 2018, at the latest.

III. Contractual Framework and Gross Misconduct

28. Paragraph 3 of Dr. Ardron's contract of employment states:

"Your employment is also subject to policies, procedures and guidance locally agreed through the Trust's Medical Negotiating Committee (MNC) and/or Trust Staff Forum."

29. Paragraph 17 of this contract provides in respect of Disciplinary Matters as follows:

"Wherever possible, any issues relating to conduct, competence and behaviour should be identified and resolved without recourse to formal procedures. However, should we consider that your conduct or behaviour may be in breach of the Trust's Code of Conduct or that your professional competence has been called into question we will resolve the matter through our disciplinary or capability procedures. For the avoidance of doubt these are The Regulating Personal & Professional Conduct of Medical and Dental Staff, The Trust's Disciplinary Policy, the Trust's Employee Capability Policy (both found on the Trust lntranet), the NHS guidance HSC20A31012 "Maintaining High Professional Standards in the NHS' and the GMC Good Medical Practice Codes of the duties and responsibilities of a doctor."

30. The Trust's Disciplinary Policy and Procedure ratified on 24 August 2016 is the relevant Disciplinary Policy. By clause 1.2 of the Policy 'Gross Misconduct' is defined (by comparison to 'Misconduct') as

"misconduct of such a nature that the Trust is justified in dismissing the member of staff who commits the offence. Such offences may warrant summary dismissal without any prior warnings."

31. The result of this definition is that it is only such conduct that is sufficiently serious to warrant summary dismissal that may be categorised contractually as 'Gross Misconduct'. This, as appears below, would be in line with the general law.
32. Appendix 3 of the Policy repeats the above definition but gives examples of gross misconduct as including:-

"- breach of trust and confidence – conduct which amounts to a breach of the implied term of trust and confidence;

negligence – any action or failure to act which could result in serious loss, damage or injury. Includes failure to give appropriate care and protection to service users.

wilful breaches of professional codes of conduct"

33. The Trust's Medical Staff Policy dated 1 September 2015 provides at 1.1 that it implements the framework set out in 'Maintaining High Professional Standards in the Modern NHS' ('MHPS') issued under the direction of the Secretary of State for Health on 11 February 2005.
34. It was rightly common ground before me that Dr. Ardron's contract of employment incorporates the Trust's Disciplinary Policy and Procedure referred to above and that she accordingly enjoyed a contractual entitlement to its proper application. See in this regard, Mattu v Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641 at [27]. It was also agreed that in principle she is entitled to seek injunctive relief to give effect to her contractual entitlements.
35. At this stage, it is important to note for reasons which are at the heart of the application that the types of conduct which fall within Appendix 3 of the Policy would not necessarily, under the common law, all be regarded as meeting the definition of "gross misconduct" justifying dismissal. So, for example, an act of negligence which might on its face fall within this appendix might be one which was not properly described as gross negligence or gross misconduct under the general law. Equally, "wilful breaches" of professional codes must mean more than the fact that a person did a deliberate act which happened to amount to a breach of a code. That could occur without serious misconduct being involved and some form of greater culpability in terms of knowing wrongdoing seems to be to be arguably implicitly required. This seems to me to be the thrust of Lord Hodge's observations in Chhabra at para. [35] when dealing with the qualitative difference between different forms of deliberate breaches of duty.
36. Before me, it was rightly accepted by the Trust that the definitions in Appendix 3 need to be read subject to the established case law as to what can amount to gross misconduct. There is a recent and helpful summary of that law to be found in Adesokan v Sainsbury's Supermarkets Ltd [2017] ICR 590 CA. Between paras. [21] to [24] of the judgment of Elias LJ, the principles governing when misconduct may amount to gross misconduct were summarised (applying Visitor to Westminster Abbey, in Neary v Dean of Westminster [1999] IRLR 288, para. [22] and Sinclair v Neighbour [1967] 2 QB 279) in the following terms:

a. Whether misconduct justifies summary dismissal of an employee is question of fact.

b. Gross misconduct is not limited to cases of dishonesty or intentional wrongdoing.

c. Misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal.

d. It is sufficient that employer can, in all the circumstances, regard what the employee did as being something which was seriously inconsistent—incompatible—with his duty as an employee in the business in which he was engaged.

e. If the conduct is of such a grave and weighty character as to amount to a breach of the confidential relationship between master and servant such as would render the servant unfit for continuance in the master's employment and give the master the right to discharge him immediately.

f. A single act of serious or gross negligence can amount to gross misconduct.

g. The focus is on the damage to the relationship between the parties.

37. These statements of principle do not detract from the point that the relevant conduct undoubtedly has to meet a threshold of seriousness. The earlier case law underlines the seriousness of the conduct which needs to be established in cases of claimed gross misconduct and gross negligence. See in this regard, the judgment in Sandwell & Birmingham Hospitals NHS Trust v Westwood UKEAT/0032/09/LA at paras. [111-112], citing the well-known cases of Wilson v Racher [1974] ICR 428; Laws v London Chronicle [1959] 1 WLR 698; and Dietman v LB Brent [1987] ICR 737.
38. It accordingly follows that the Trust was not in law entitled to apply these Appendix 3 definitions without a gloss which requires serious wrongdoing such as to justify dismissal. Sometimes this type of wrongdoing is called deliberate and wilful flouting of contractual terms or conduct which suggests repudiation. Other cases put it in terms of actions which so deeply undermine the trust and confidence between employer and employee that the employer should no longer be required to retain the employee: see Neary (cited above) at para. [22].
39. I now turn to application of the principles set out in American Cyanamid Co. v Ethicon Ltd. (No.1) [1975] AC 396:

(a) Is there a serious question to be tried?

(b) Would damages be an adequate remedy for any prejudice suffered by the Applicant and Respondent?

(c) Where does the balance of convenience lie?

IV. Serious issue to be tried

40. As indicated above, this is the principal issue between the parties. In short, the question is whether there is a serious issue to be tried as to whether the Trust is acting in breach of the contract of employment in pursuing a gross misconduct case (with potential dismissal as the sanction) on the basis of the allegations in the Management Statement of Case and given the terms of the Investigation Report.
41. In approaching this issue, I have considered the pleaded case of each party and the points made in the skeletons and orally. In essence, the Trust argues there is an overwhelming evidential basis for a gross misconduct charge based on the Investigation Report. In considering that argument I have taken into account the 12 individual points set out in para. 17 of the Defence and which are said to represent (without prejudice to the full Investigation Report) the elements of the gross misconduct case. For convenience, I have annexed these individual points to this Judgment. These points are principally various alleged failures to act by the Claimant which are said to permit an inference of wilful conduct and potential breach of the implied term of trust and confidence. Many, but not all, of the points concern failures in record-keeping and documentation. There are also instances of failures to meet Good Medical Practice.
42. In extreme contrast, the Claimant's representatives submit that the allegations, taken at their highest, cannot amount to a properly arguably gross misconduct case. They also rely in evidence on the fact that the Case Investigator when making findings of a failure to meet standards did not suggest that epithets such as "gross" or "wilful" failures were appropriate to describe the conduct in issue. That point does not seem to be contentious as a matter of fact though it is said that it was not the role of the Case Investigator to make such findings.I have asked myself whether the Claimant can demonstrate at this interlocutory stage (and on the basis of necessarily limited materials) that she has a "real prospect of success" in her contentions: Protomed Ltd. V Medication Systems Ltd [2013] EWCA Civ 1205 at para. [10].
43. Bearing in mind the nature of that test, and having considered the rival contentions made in writing and orally, the Claimant has satisfied me that there is a serious issue to be tried on the evidence before me. I emphasise that I am not holding that the Claimant will succeed at trial but I am concerned only with the more limited question I have set out immediately above. As I describe below, I have concluded there is more than one serious question to be tried.
44. My reasons are as follows:

(i) In the Management Statement of Case at page 18 (the concluding section), it is said:

"On review of the Trust's Disciplinary Policy and Procedure, this behaviour [the behaviour cited earlier] if founded potentially falls into the definitions of:

. Negligence - any action or failure to act which could result in serious loss, damage or injury. Includes failure to give appropriate care and protection to service users.

. Wilful breaches of professional codes of conduct.

. Breach of trust and confidence - conduct which amounts to a breach of the implied contractual term of trust and confidence.

Which are considered gross misconduct with Appendix 3 of the Trust's Disciplinary Policy and Procedure".

(ii) This language suggests, on its face, that Dr. Angus (author of the Management Statement of Case, as Case Manager) appears to have directed himself in accordance only with the Appendix 3 definition and not in accordance with the stricter standards as to what can amount to gross misconduct which I have set out above. As I also set out above, the Trust (in argument before me) agreed that the Appendix 3 definitions are not in themselves sufficient and must be read subject to the gloss required by the general law.

(iii) It can accordingly be argued that there is a realistic prospect of success in the argument that there has been a misdirection of law in the Management Statement of Case.

(iv) However, I would not have necessarily been attracted by this point against the Trust if one could identify within the body of the Management Statement of Case that the gloss or its equivalent was in fact being applied when Dr. Angus was assessing whether there was a case to answer for gross misconduct or gross negligence. In other words, was it obvious that the type of conduct he was describing would be properly classified as gross misconduct or gross negligence?

(v) Having considered the body of that document, it is in my view clearly arguable to the level of realistic prospect of success (and I put it no higher) that behaviour or conduct which on its face might not (even when assessed cumulatively) amount to gross misconduct or gross negligence appears to be the basis of the charges.

(vi) Although this point can be made in relation to a number of the conclusions on the TORs set out in Management Statement of Case, the most striking to me are those which suggest that actions which may have been regrettable errors of judgment in making records (in the difficult prison context), or acts which are called "inappropriate or careless" are arguably being wrongly categorised as gross misconduct. I will set out some examples.

(vii) First, in relation to TOR 4 (was there a psychiatric assessment by Dr. Ardron at the earliest opportunity following JO's return from ITU?), the Management Statement of Case records that the Investigation Report concluded that "Dr Ardron completed her assessment [of JO] at the earliest opportunity on 25 November 2015…[but] she did not record her formulation or treatment plan in the clinical record. Dr Parrott, emphasised that the records were not detailed accurate or verified. This is not consistent with 'Good Psychiatric Practice'. " This might be argued to be a record keeping criticism. The same point can be made in relation to TORs 8 and 9. I accept that cumulatively and in context repeated failures of a type which show a causal and highly irresponsible disregard for record keeping might justify a charge of gross misconduct but having considered the terms of the Investigation Report, it is certainly arguable with a realistic prospect of success that that is not the nature of the failing which is in issue in this case.

(viii) As to TOR 11 (professional leadership), it is said by Dr. Angus in the Management Statement of Case that "I consider it may be reasonable to conclude this failure to undertake regular reviews aligns with careless or inappropriate behaviour which is likely to compromise standards of care, which is considered misconduct within MHPS…". Again, it seems me to that there is a serious question to be tried that taken at its highest this alleged careless or inappropriate behaviour is not capable of amounting to gross misconduct when that term is properly understood. I note that the Case Investigator originally considered this under a "capability" and not a "conduct" head.

(ix) The same point can be made in relation to TOR 12 (working within governance structures) where it is said there is "a case to answer that Dr Ardron did not meet professional standards of the GMC and the Royal College of Psychiatrists through alleged conduct which aligns with careless or inappropriate behaviour which is likely to compromise standards of care. Such conduct if proven may be considered to be misconduct within MHPS and gross misconduct in accordance with Appendix 3 of the Trust's Disciplinary Policy and Procedure.". This is a further example of Dr. Angus apparently directing himself expressly in accordance with the tests in Appendix 3 but describing behaviour which it is hard to see as being so seriously wrong as to destroy the employment relationship or to evince a wilful and culpable disregard of professional standards. One would not normally call such behaviour "careless or inappropriate".

(x) I emphasise that, in relation to each of these points, at trial a different conclusion may be reached, but they clearly raise a serious issue to be tried at this stage. I have not dealt with every point made in this regard by the Claimant since it seems to me that the points I have selected establish a serious issue to be tried as to potential breach of contract.

45. In addition to the serious questions to be tried as to whether there has been a misdirection as described above (essentially wrongful categorisation), I also see merit in Dr. Ardron's submission that there is a serious question to be tried on another issue. That is whether the Management Statement of Case purports to put before a conduct panel complaints which have not been considered by Dr Wijetunge, and complaints in respect of which he, as Case Investigator, gathered no evidence. To take just one example, at p.10 of the Management Statement of Case it is said "ward reviews did not occur although Dr Ardron was in the prison". This does not seem to me to be a finding in the Investigation Report. Rather, Dr. Wijetunge's report concluded that there was a lack of documentation in the clinical record to sufficiently evidence that the reviews did occur on the dates scheduled for them: see, in particular, the conclusion at §11.8 of the Investigation Report. There is a real difference between a finding of no reviews and a finding of a lack of evidence.
46. For reasons set out by Lord Hodge in Chhabra at [32], these types of error (if established) would be unlawful as being in breach of contract: Lord Hodge explained:

"32…The case manager has a discretion in the formulation of the matters which are to go before a conduct panel, provided that they are based on the case investigator's report and the accompanying materials in appendices of the report, such as the records of witness interviews and statements. But the procedure does not envisage that the case manager can send to a conduct panel complaints which have not been considered by the case investigator or for which the case investigator has gathered no evidence".

47. Finally, standing back from the detail and returning to the case in para. 17 of the Defence (to which I made reference in para 41 above and the terms of which appear in the Annexe), I consider that the Claimant has a realistic prospect of success in her contention that when these matters are considered in context, and by reference to the terms of the Investigation Report, they do not, taken at their highest, establish a gross misconduct case to answer. I emphasise again, this is not a concluded finding but merely a provisional view formed for the purposes of the injunction application.

V. Adequacy of damages

48. Given that Dr. Ardron has established several serious questions to be tried, I turn to consider the adequacy of damages.
49. Dr. Ardron argues that damages are not an adequate remedy. It is submitted on her behalf that if the hearing goes ahead as scheduled and she is dismissed or her job plan changed, she will suffer irreversible prejudice both in relation to her ongoing employment with the Defendant and in reputational terms. I agree. It can also be readily seen that being subject to an unlawful process of discipline is not capable of a satisfactory remedy by way of financial relief in due course.
50. The Trust argues that Dr. Ardron's common law damages will be limited to her notice period and to that extent they are not an adequate remedy. It drew attention however to Dr. Ardron's potential employment law remedies. The Trust submits that it will also not adequately be compensated for the delay and management time if an injunction were granted.
51. In my judgment, damages will not be an adequate remedy for either party. Neither party in fact ultimately argued strongly to the contrary, given that the real battle was on the serious question to be tried.

VI. Balance of convenience

52. The Trust argues that the outcome of this application is likely to be dispositive of this claim and so I should require a higher degree of assurance that the Claimant will succeed at trial. It says that if the injunction is granted, the Trust will effectively be required to proceed on the basis of charges which it does not consider reflect the level of wrongdoing. I do not accept this submission. This claimed prejudice would be one brought on the Trust by its own choosing. The Trust could equally well wait until these proceedings are concluded. No order of this court would compel the Trust to proceed with a limited case and it has not argued that there is some form of urgency requiring it to act in that way.
53. Further, it is striking that the investigation in relation to Dr. Ardron does not seem to have proceeded with great speed and it is notable that she presently continues to work for the Trust without suspension. The Trust has not taken precautionary steps: this suggests it does not consider Dr. Ardron to be a risk to patients. Although it is clearly in the public interest to conclude the disciplinary proceedings as soon as reasonably possible, I am not persuaded there is any urgency requiring them to be resolved within a matter of weeks given the existing lengthy delays.
54. In my judgment, the balance of convenience comes down firmly in favour of granting an interim injunction pending a resolution, on an expedited basis, of the breach of contract claim. If Dr. Ardron's claim is ultimately successful but she has been exposed to an unlawful disciplinary process in the meantime, she would have been denied the benefit of her contractual rights in any meaningful way. Bearing in mind the observations of Lord Hoffmann in National Commercial Bank Jamaica Limited v Olint Corp Limited [2009] 1 WLR 1405, 1409 at para. [17], my conclusion is that the evidence and arguments before me demonstrate that granting an injunction is the course which is likely to cause the least irremediable prejudice.
55. In coming to this conclusion, I have in mind the observations of Lord Hodge in Chhabra, at paras [39-40]. Although each case will depend on its own facts, Lord Hodge explained that an incorrect categorisation of conduct as gross misconduct would provide a sufficient basis for an injunction even though the general principle is that the courts should avoid micro-management of employment proceedings. In my view, there is a real question as to whether there has been such an incorrect categorisation in this case. As a matter of discretion, the balance comes down in favour of an order which would allow a trial to determine that issue before the disciplinary process continues.
56. Dr. Ardron will be required to provide the usual cross-undertaking in damages and there has been no suggestion by the Trust that this will not be satisfactory in financial terms.

VII. Conclusion

57. I will grant an injunction to restrain the disciplinary proceedings, pending an expedited trial and will hear Counsel as to the terms of the Order and directions.

ANNEXE

PLEADED ACTS IN RELATION TO GROSS MISCONDUCT

IR refers to Investigation Report

(1) On 5 occasions the Claimant undertook no ward review (IR 10.47).

(2) An inadequate assessment of JO was undertaken and/or recorded by the Claimant. The assessment did not include:

a. Any reference to JO's mood; symptoms of depression, (e.g. sleep, appetite, energy, concentration); presence of Anhedonia and; presence of psychosis (IR 10.60 and IR 10.63).

b. Any documentation of a diagnosis, differential diagnosis or formulation (IR 10.60, IR 10.63 and IR 10.81).

c. Any explicit documentation of whether delusions, hallucinations or thought disorders were present (IT 10.60).

d. A clear clinical formulation or a treatment plan (IR 10.60 and IR 10.63).

(3) Having undertaken an (undocumented) assessment there were no plans documented by the Claimant for any further review or details or risk management nor any treatment plan (IR 10.94, IR 10.95 and IR 10.96).

(4) The Claimant did not check records made by the secretary on 25/11/2015 to ensure clinically relevant information was included (IR 10.64 and IR 10.65).

(5) The Claimant made no plans for the prescribing of medication. She accepted that she should have prescribed medication, which could have been offered to JO by nursing staff during periods when JO was more able to engage with them. (IR 10.97 and interview of 03/04/2017 IR Appendix A page 8).

(6) No management interventions were undertaken by the Claimant whilst JO awaited transfer from HMP Lewes to a psychiatric unit (IR 10.108).

(7) Although the Claimant claimed to have assessed JO through the hatch of his cell on approximately four occasions there was no documented records of this (IR 10.85 and IR 10.106).

(8) The Claimant failed to document the outcome of referral meetings (IR10.123 and interview of 03/04/2017 IR Appendix A page 8).

(9) The Claimant failed to keep adequate records of her contact with other clinicians (IR 10.125; IR 10.151 and IR 11.22).

(10) The Claimant failed to document how she had incorporated the views of other clinicians into her clinical formulation, investigation, risk assessment, management and treatment plans (IR 10.130 and IR10.131).

(11) the Claimant failed to adequately communicate with colleagues as to JO's condition (IR 10.151).

(12) In numerous respects set out in the IR the Claimant failed to comply with the requirements of "Good Medical Practice", "Good Psychiatric Practice" and "Leadership and Management for all Doctors".