“The distinction between personal and professional misconduct is abolished. Doctors and dentists employed in the NHS will be disciplined for misconduct under the same locally based procedures as any other staff member; There is a single process for handling capability issues about the practitioners professional competence closely tied in with the work of the National Clinical Assessment Authority; Health issues are routinely dealt with through the occupational health service; The employing Trust is squarely responsible for the disciplining of its medical and dental staff – not outsiders; There is scope bring in expert advice for panels considering capability issues; The capability panel will be handled by an independent chair; The same disciplinary procedures will apply to all doctors and dentists employed in the NHS”
“4.1 There will be occasions where the Trust considers that there has been a clear failure by an individual to deliver an adequate standard of care, or standard of management, through lack of knowledge or ability. These raise issues related to capability. Matters that should be described and dealt with as misconduct issues are covered in part 3 of this procedure. 4.5 It is inevitable that some cases will include conduct and capability issues. It is recognised that these cases can be complex and difficult to manage. If a case covers more than a one category of problem, they should usually be combined under a capability hearing although there may be occasions where it is necessary to pursue a conduct issue separately. It is for the Trust to decide upon the most appropriate way forward having consulted the NCAS. The practitioner is also entitled to use the Trust’s grievance procedure if they consider that the case has been incorrectly classified. Alternatively or in addition he or she may make representations to the Designated Board Member. 4.6 The procedures set out below are designed to cover issues where a doctor’s or dentist’s capability to practice is in question. Prior to instigating these procedures, the employer will consider the scope for resolving the issue through counselling or retraining and will take advice from the NCAS.”
“9.8 In February 2009 (24 February 2009 ) the parties set out their views in respect of the academic re-skilling. Mr Kennedy [the Trust’s Medical Director] confirmed (pg 284) that he was: “not prepared to sanction a further 6 months research training not sanctioning another six months in terms of academic training whether here or in the States or wherever, not a prerequisite to us getting you back here in to work this is a personal development after you return to work. Clinical re-skilling comes first get you back into the role of a Consultant Cardiologist.” 9.11 Mr Kennedy’s position was that he was supportive of Dr Mattu’s academic interest and activities but he wanted Dr Mattu to return to the Trust as a practicing Cardiologist. Once Dr Mattu had successfully completed his re-skilling programme and should Dr Mattu then wish to pursue additional overseas experience, then he would consider a secondment proposal (pg275). This was not acceptable to Dr Mattu, as Dr Mattu objected to research being considered as a peripheral of his job. 11.6 I have reviewed the contractual documentation available to me. The contractual documentation suggested that Dr Mattu was appointed as, and remains, an NHS Consultant, engaged primarily in clinical work with an interest in research. Dr Mattu’s contract of employment lists research as eighth in a total of eleven responsibilities. As discussed above, it is clear that the job plan in place before Dr Mattu’s suspension provided for no sessions of research at all, which was in fact unusual as it would be usual for a Consultant’s job plan to have 2.5 sessions per week for supporting professional activities, which in a teaching hospital would include academic activity (p 607). In 2004 Dr Mattu stated that he had ‘no designated time for research’ (p593). I can therefore find no evidence to support Dr Mattu’s contention that research was the single largest activity in his job plan (and therefore contract) prior to his suspension. “not prepared to sanction a further 6 months research training not sanctioning another six months in terms of academic training whether here or in the States or wherever, not a prerequisite to us getting you back here in to work this is a personal development after you return to work. Clinical re-skilling comes first get you back into the role of a Consultant Cardiologist.”
“14.9 I accept that Dr Mattu had the right to query certain aspects of the re-skilling programme and in principle I have no issue with that. It is rather the way in which Dr Mattu goes about doing this that in my opinion renders him unmanageable. 14.10 Rather than meeting or writing to the appropriate person to raise issues politely, Dr Mattu will write lengthy letters of complaint, lodge grievances or deal with matters through incorrect channels. 14.11 The tone of Dr Mattu’s letters are often patronising, condescending and disrespectful to those assisting with the reintegration process including senior management, the Chief Executive and the Chairman (a few examples of which can be found at pages p16 p20-29, pg32, pg46-47, pg56, pg143, pg341, ph345) Reading through the correspondence I was shocked at the way in which Dr Mattu addressed his Medical Director and Chief Executive, which at times lacked basic professional courtesy and respect.”
“1. Repeatedly refusing to comply with the reasonable requirements of your employer by refusing to sign the Action Plan and failing to cooperate with the re-skilling process; refusing to accept or comply with reasonable instructions given to you by Mr Kennedy; and acting in such a way as to render yourself unmanageable. 2. Leaking of confidential information about the Trust and its employees and/or the making of false allegations about the Trust and its employees to the broadcast media, press or other third parties (whether directly or indirectly). 3. During a period of extended sick leave, whilst you represented to the Trust that your illness was severe, and that you were unable to attend investigation meetings or attend the Trust for an Occupational Health Review, you attended a series of social events on consecutive evenings [and] your attendance at future events was advertised. You have, therefore, deliberately misrepresented the severity and effect of your illness to the Trust and to those managing the investigation processes. In doing so, your conduct is such as to amount to a breach of your duty of fidelity to the Trust, as your employer, and seriously damages the trust and confidence that should exist between you and the Trust.”
“I then considered whether your reason for refusing to sign the Action Plan was reasonable. Your dominant reason for this was your insistence on the provision by the Trust of 6 months academic re-skilling prior to your return to clinical duties. I considered this but concluded that this was not a reasonable demand on your part and did not represent a good reason or justification for your failure to follow Mr Kennedy’s reasonable instruction to agree and sign the Plan. There was evidence that Mr Kennedy took steps to gain independent specialist advice on this matter and that all who were consulted agreed that a period of academic re-skilling before you returned to clinical duties was not necessary or appropriate. In addition, these same specialists confirmed that the re-skilling programme that has been supported by Mr Kennedy was reasonable in order to allow you to refresh the necessary skills to enable you to return to work at the Trust as a consultant Cardiologist effectively.”
“The panel’s decision in respect of this point of appeal was made at the conclusion of the hearing on13 May 2011 , outlined to you verbally and confirmed in the notes of the hearing. I will summarise the panel’s decision on this ground of appeal as follows. The appeal panel concluded that Maintaining High Professional Standards (MHPS) and the Trust’s “Procedure for Conduct and Capability Concerns in relation to Medical and Dental Staff” were applicable. The panel concluded that as this was a matter of non clinical conduct, the use of the Disciplinary and Appeals Procedure was correct and there was no breach of procedure in Mr Hardy failing to have a medical member on the disciplinary panel. The appeal panel also concluded that Mr Hardy acted reasonably in proceeding with the disciplinary hearing in November 2010 having considered the number of cancellations the Trust accepted, the adjustments made for the November 2010 disciplinary hearing, Mr McKivett’s admission in October 2010 that you had not made any preparation for the hearing, the concession that Mr. McKivett was invited to attend on your behalf and the lack of certainty regarding your return to work.”
“On reviewing the emails and specifically an email exchange between you and Darren Parkin, Editor of the Coventry Telegraph on 11th and12th May 2011 , the appeal panel’s view was that, in contrast to your assertion, the email exchange supported the decision made by Mr. Hardy at the disciplinary hearing.”
“… your conduct in respect to all three allegations demonstrated your unwillingness to adhere to the Trust’s expectations of you as an employee. Throughout the appeal process, the panel noted a number of instances which reinforced the view in the management case that you were unmanageable. In conclusion the appeal panel determined that Mr Hardy’s decision that the allegations amounted to gross misconduct was reasonable. The appeal panel determined that the sanction of summary dismissal was reasonable in the circumstances and therefore dismissed your appeal.”
“An issue for the Court to decide is whether Mr Hardy had, in the circumstances, the entitlement under the contract and in the light of Article 6, to dismiss Dr Mattu. The Court does not have to decide whether Dr Mattu was guilty of the disciplinary allegations with which he was charged, or whether the allegations (in the light of his defence) merited dismissal (or any sanction.”
“What you have here is essentially an employment dispute. This doctor has clearly fallen out with his Trust. You have heard a great deal about how the investigator for the Trust felt that things had become rather dysfunctional. You may very well agree with that when you look at some of the papers, but just because a doctor disagrees with his employer about the terms of his contract and so forth, it does not mean that there are any real concerns about his registration as a doctor at all. This Trust may consider that he is unmanageable, but there is simply no evidence anywhere else that he is unmanageable as a doctor or cannot continue to be a doctor. In fact, I will be taking you to documentation that suggests very much the opposite. …”
“We characterise those matters as an employment dispute.”
“76. … I am clear, having heard Dr Mattu give evidence, that he was anxious to control the material that the Trust received. He saw drafts of documents that were sent on his behalf and imparted to his general practitioner an attitude towards the Trust which was, at the lowest, questioning. Dr Buckley was, in fact, not a satisfactory person to provide an occupational health report as the Health and Work Handbook [A publication supported by the Department for Work and Pensions and contributed to by the Royal College of General Practitioners] makes plain. It is strongly recommended that doctors avoid acting as both GP and occupational physician. The potential for blurring of roles and confusion is too great.”
“Given the current efforts to clarify a difficult medical scenario, I would be most grateful if the Trust would consider deferring their hearing until early next year.”
“46. In addition, it must be shown that the ‘contestation’ (dispute) related to ‘civil rights and obligations’, in other words that the ‘result of the proceedings’ was ‘decisive’ for such a right. According to the applicants, what was at issue was their right to continue to exercise their profession; they maintained that this had been recognised to be a ‘civil’ right in the König judgment [König v. Germany (1978) 2 EHRR. 214]. … 47. As regards the question whether the dispute related to the above-mentioned right, the Court considers that a tenuous connection or remote consequences do not suffice for Article 6 (1), in either of its official versions (‘contestation sur’; ‘determination of’): civil rights and obligations must be the object—or one of the objects—of the ‘contestation’ (dispute); the result of the proceedings must be directly decisive for such a right. Whilst the Court agrees with the Government on this point, it does not agree that in the present case there was not this kind of direct relationship between the proceedings in question and the right to continue to exercise the medical profession. The suspensions ordered by the Provincial Council on30 June 1971 (Dr. Le Compte) and on24 October 1973 (Dr. Van Leuven and Dr. De Meyere) were to deprive them temporarily of their right to practise. That right was directly in issue before the Appeals Council and the Court of Cassation, which bodies had to examine the applicants’ complaints against the decisions affecting them.”
“33. … What remains in dispute, however, is whether the disciplinary proceedings initiated against the petitioner could lead to a "determination of her civil rights and obligations" within the meaning of Article 6(1). I use the word "could" advisedly. In my opinion, for the purposes of the present proceedings it is not necessary for the petitioner to establish that, whatever their outcome, the disciplinary proceedings will result in a determination of her civil rights and obligations. In my opinion, if the petitioner can establish that the disciplinary proceedings could result in a finding that would constitute a determination of her civil rights and obligations, the decision to initiate those disciplinary proceedings is open to challenge as being incompatible with the petitioner’s Convention rights. Before me, no party disputed that it was open to the petitioner to raise this challenge at this stage. None of the counsel for the respondents, the Secretary of State for Health and the Scottish Ministers suggested that the petition was premature or that the disciplinary proceedings required to run their course, before the Court of Session could address the issues, which the petitioner had raised.”
“84. … At any rate in a case where the court is considering the position after the tribunal had made its decision, as in the instant case, a decision to reprimand or severely to reprimand the person concerned (here the claimant) does not amount to a determination of his civil rights because the right to continue to practise his profession is not at stake.”
“65. It appears to me that the distinction which the court was drawing was that, in ordinary disciplinary proceedings, where all that could be at stake was the loss of a specific job, article 6 would not be engaged. However, where the effect of the proceedings could be far more serious and could, as in that case, deprive the employee of the right to practise his or her profession, the article would be engaged. 66. The difficulty is to know where to draw the line. Mr Stafford and Miss Lee both submitted that Dr Kulkarni was facing ordinary disciplinary proceedings brought by his employer and the only effect, if the charge were found proved, would be that he would lose his job. Only proceedings before the General Medical Council can deprive a doctor of the right to practise. But, as Mr Hendy pointed out, the National Health Service is, to all intents and purposes, a single employer for the whole country. Indeed, for a trainee doctor, that is literally true as a doctor cannot complete his training in the private sector. If Dr Kulkarni is found guilty on this charge he will be unemployable as a doctor and will never complete his training. If he applies for any other position he will be obliged to declare the finding against him and the fact of his dismissal. Moreover, submitted Mr Hendy, it is highly likely that the system of ‘alert letters’ would be operated in this case if Dr Kulkarni were found guilty. An alert letter is a letter warning other NHS employers not to employ the doctor named, who is regarded as presenting an unacceptable risk to patients. The alert letter procedure is currently governed by the Healthcare Professionals Alert Notice Directions 2006. 67. It seems to me that there is force in Mr Hendy’s submission and, had it been necessary for me to make a decision on this issue, I would have held that Article 6 is engaged where an NHS doctor faces charges which are of such gravity that, in the event they are found proved, he will be effectively barred from employment in the NHS.”
“89. I recognise the force of the submission made by [counsel for the defendant] 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.”
“33. It is common ground that the civil right with which we are concerned is the claimant’s right to practise his profession as a teaching assistant and to work with children generally. There is no doubt that this right would be directly determined by a decision of the ISA to include him in the children’s barred list. He does not, however, contend that the proceedings before the ISA would violate his article 6(1) rights. His case is that (i) the disciplinary proceedings would have such a powerful influence on the ISA proceedings as to engage article 6(1) in both of them and (ii) the consequences of being placed on the children’s barred list by the ISA would be so grave for him that the right to a fair hearing vouchsafed by article 6(1) meant that he was entitled to legal representation in both proceedings. 34. If there is no connection at all between the disciplinary proceedings and the proceedings before the ISA, it is obvious that article 6 has no role to play in the disciplinary proceedings. Ex hypothesi, they have nothing to do with the civil right in question. 35. The principal question raised on this appeal is what kind of connection is required between proceedings A (in which an individual’s civil rights or obligations are not being explicitly determined) and proceedings B (in which his civil rights or obligations are being explicitly determined) for article 6 to apply in proceedings A as well as proceedings B. Does the connection have to be so strong that the decision in proceedings A in effect determines the outcome of proceedings B (as Mr Bowers QC submits)? Or is it sufficient that the decision in proceedings A has an effect on proceedings B which is more than merely tenuous or remote (as Mr Drabble QC submits)? Or does the connection lie somewhere between these two positions?”
“So I shall deal first with cases of dismissal. These appear to fall into three classes: dismissal of a servant by his master, dismissal from an office held during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal. The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them. ...”
“I agree with Mr Tam [counsel for the Secretary of State] that it is unhelpful to consider the relationship between fire officers and their employer authorities on a purely contractual basis. The Regulations modify what would otherwise be the contractual relationship by imposing appellate procedures on the decisions which must be observed by the authority.”
“Their Lordships recognise that the immediate dismissal of an employee is a strong measure, and they have anxiously considered the evidence with a view to determine the question whether the trial judge was right in his finding that the respondent was guilty of gross negligence, which, coupled with his conduct at the interview of 21 December, was sufficient to justify his dismissal. …”
“Article 6(1) does not, however, guarantee any particular content for those (civil) “rights” in the substantive law of the Contracting States: the Court may not create through the interpretation of Art.6(1) a substantive right which has no legal basis in the state concerned. Its guarantees extend only to rights which can be said, at least on arguable grounds, to be recognised under domestic law.”
“I accept at once the gravity of the consequences for the claimant of being placed on the children's barred list. For that reason, I would agree with the courts below that, if article 6 did apply in the disciplinary proceedings, then the claimant was entitled to the enhanced procedural protection (normally associated with criminal proceedings) of the right to have legal representation at the disciplinary hearing. The more serious the allegation and the graver the consequences if the allegation is proved, the greater the need for enhanced protection: see Albert and Le Compte v Belgium(1983) 5 EHRR 533 , para 30, R v Securities and Futures Authority Ltd, Ex pFleurose[2002] IRLR 297 , para 14 (per Schiemann LJ) and International Transport Roth GmbH v Secretary of State for the Home Department[2003] QB 728 , para 38 (per Simon Brown LJ) and para 148 (per Jonathan Parker LJ).”
“Working backwards, as it were, I would also have been inclined to hold that the better way to cure any breach of article 6(1) at the initial stage would have been to require the ISA to adopt procedures which complied with article 6(1) rather to require the employer to adopt these procedures to make good gaps in the regime that is operated by the ISA. Laws LJ's conclusion was that article 6(1) required that the claimant should be afforded the opportunity to arrange for legal representation in the disciplinary proceedings should he so choose:[2010] 1 WLR 2218 , para 53. But there is a serious risk that, if that course were to be adopted, disciplinary proceedings in the public sector would be turned into a process of litigation, with all the consequences as to expense and delay that that would involve. The burden that this would impose on employers, and its chilling effect on resort to the procedure for fear of its consequences, is not hard to imagine. A good indication that it was Parliament's wish to avoid this is to be found insection 10 of the Employment Relations Act 1999 that the employee has a right to be accompanied by an official of a trade union, not by a lawyer. To require the person to be provided with legal representation before the governors would go against that intention, and it would have been the wrong remedy. Our decision that the necessary nexus has not been established avoids these very unattractive consequences.”
“It is a well-known principle that decisions which determine civil rights and obligations may be made by the administrative authorities, provided that there is then access to an independent and impartial tribunal which exercises “full jurisdiction”: Bryan v United Kingdom(1995) 21 EHRR 342 , applied domestically in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions[2003] 2 AC 295 and Runa Begum v Tower Hamlets London Borough Council (First Secretary of State intervening)[2003] 2 AC 430 . What amounts to “full jurisdiction” varies according to the nature of the decision being made. It does not always require access to a court or tribunal even for the determination of disputed issues of fact. Much depends upon the subject matter of the decision and the quality of the initial decision-making process. If there is a “classic exercise of administrative discretion”, even though determinative of civil rights and obligations, and there are a number of safeguards to ensure that the procedure is in fact both fair and impartial, then judicial review may be adequate to supply the necessary access to a court, even if there is no jurisdiction to examine the factual merits of the case”
“Where the alleged misconduct being investigated relates to matters of a professional nature, or where an investigation identifies issues of professional conduct, the Case Investigator must obtain appropriate independent professional advice. This independent advice may be obtained internally and externally as deemed appropriate. Where a case involving issues of professional conduct proceeds to a hearing under the employer’s disciplinary procedure the panel must include a member appointed by the LNC who is medically qualified (in the case of doctors) or dentally qualified (in the case of dentists) and who is [not] [1]The word “not” has been omitted from the text of the Procedure, but it is present in the source document, Maintaining High Professional Standards in the Modern NHS (MHPS). [1] employed by the organisation.”
“Second, the allegation on its face is nothing to do with the exercise of professional skills by Dr Mattu. It is a refusal to comply with reasonable requirements … and acting in an unmanageable way.”
“Repeatedly refusing to comply with the reasonable requirements of your employer by refusing to sign the Action Plan and failing to cooperate with the reskilling process; refusing to accept or comply with reasonable instructions given to you by Mr Kennedy; and acting in such a way as to render yourself unmanageable.”
“8.5 Initially the dispute related to Dr Mattu’s request to have ‘a 6 month period of training in the USA, at a leading centre to be confirmed’. The dispute has now developed into the ‘fundamental disagreement’ as to whether Dr Mattu requires a 6 month period of ‘academic re-skilling’ following the completion of his clinical re-skilling before he returns to his role at the Trust.”
“There are close links with the University of Warwick and active research interest of the successful candidate will be encouraged. Several Medical and Surgical staff have honorary appointments at the University where there is a School of Postgraduate Medical Education.”
“If during the course of the investigation, it transpires that the case involves more complex clinical issues than first anticipated, the Case Manager should arrange for a practitioner in the same specialty and same grade from another NHS body to assist.”