What the doctor ordered

It was the second time that the claimant in Mezey v South West London & St George's Mental Health NHS Trust [2010] EWCA Civ 293 went to the Court of Appeal to challenge the way in which her employer was conducting disciplinary proceedings against her. And for the second time she was successful in obtaining injunctive relief.

Dr Mezey was employed by the trust as a consultant forensic psychiatrist and also undertook academic duties at its medical school. In September 2004, one of her patients (John Barrett, JB) absconded from a medium-secure mental health unit, having been granted unescorted leave to a hospital garden area. The following day he attacked and killed a stranger in Richmond Park.

Following two internal inquiries conducted by the trust into Dr Mezey's role in this matter, the trust decided to proceed to a formal disciplinary hearing. There was some confusion and dispute as to the applicable procedure. The trust had at that stage failed to implement the Department of Health's framework known as 'Maintaining High Professional Standards in the Modern NHS' (MHPS), as a result of which the relevant contractual procedure was 'Disciplinary Procedures for Hospital'¦ Staff HC(90)9' (HC(90)9).

JB was convicted of manslaughter, following which a further inquiry was commissioned in accordance with Department of Health guidelines. This third report was delivered in October 2006. The trust then suspended Dr Mezey from all her duties, including her academic duties. At this stage, in separate legal proceedings that also went to the Court of Appeal (Mezey v South West London & St George's Mental Health NHS Trust [2007] IRLR 244), Dr Mezey obtained an injunction restraining the trust from suspending her, having given a voluntary undertaking not to carry out clinical duties pending a further investigation that was due to be carried out by a panel (the Francis panel) convened under the HC(90)9 disciplinary procedure.

No serious fault

The Francis report was delivered on 28 March 2008. It was supportive of many aspects of Dr Mezey's treatment of JB. It found her to be a highly experienced, conscientious and distinguished clinician and academic who was widely regarded as an asset to her profession. However, it also found that the decision to allow JB unescorted leave was inappropriate, even though it was satisfied that other competent consultants at the time might have made the same decision. It was clear that this did not amount to serious professional incompetence. It concluded that no serious fault had been proven.

Despite this, the trust attempted to set up a formal disciplinary hearing to consider whether or not any disciplinary action should be taken against Dr Mezey, up to and including dismissal. This led Dr Mezey to commence further proceedings against the trust to prevent it from holding a disciplinary hearing and from continuing to exclude her from clinical work.

This caused the trust to reconsider its position. It agreed to lift Dr Mezey's exclusion from clinical work. Further, it indicated that dismissal would be excluded from the potential outcomes, meaning they would be restricted to various warnings and reprimands. However, its stance remained that it wished to convene a disciplinary hearing to consider the Francis report and the possibility of a warning or reprimand.

The High Court, in a judgment unanimously upheld by the Court of Appeal, found that in the relevant circumstances there was simply no basis under either HC(90)9 or MHPS for the trust to continue its disciplinary procedure and hold a disciplinary hearing. The case turned on complex provisions in both procedures, setting out the triggering circumstances in which disciplinary action could be taken.

In light of the Francis panel findings, it was clear they had not been met. It was also relevant that the trust had failed to refer the matter to the National Clinical Assessment Authority (now Service), in breach of the MHPS procedure.

Complex procedures

This is a reminder of the complexity of the contractual disciplinary procedures that apply to employment in many parts of the public sector, not only the NHS, and the potential legal consequences if they are not followed properly. In light of failures by the trust to follow the applicable contractual procedures, Dr Mezey was twice successful in obtaining injunctive relief from the Court of Appeal: first in relation to her suspension, and second in relation to the continuation of internal disciplinary proceedings.

This case, like recent cases examining if and when employees are entitled to legal representation in disciplinary proceedings, illustrates how careful public sector employers need to be in disciplinary cases. While there will be a temptation to overhaul and simplify existing disciplinary procedures, this may not be straightforward. At the time of writing, it was being reported that the

Public and Commercial Services Union had obtained an order quashing the introduction of a new redundancy payments scheme for civil servants, on the grounds it had not been agreed with the union. Attempts to water down existing disciplinary procedures could conceivably face similar challenges.

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