Amir Ahmed Bhatti v County Durham and Darlington NHS Foundation Trust [2026] EWHC 1079 (KB)

[2026] EWHC 1079 (KB)Case No KB-2026-000452
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday 11 th May 2026
Before
Elizabeth O’Neill (sitting as Deputy Judge of the High Court)
Between
Mr Amir Ahmed BhattiClaimantCounty Durham and Darlington NHS Foundation TrustDefendantNicola Newbegin and Annie Davis (instructed by Weightman s LLP) for Claimant Betsan Criddle KC and Adam Ross (instructed by Capsticks LLP) for the DefendantHearing Hearing dates: 3 March 2026JudgmentThis judgment was handed down remotely at 10.30am on 11/05/2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

O’Neill, Elizabeth (sitting as Deputy Judge of the High Court):

[1]The Claimant, Mr Bhatti, is employed by the County Durham and Darlington NHS Foundation Trust (the Defendant or "the Trust”) as a Consultant in general surgery with an interest in breast surgery. He works at the Trust’s University Hospital of North Durham site.[2]By an application notice served on 16 February 2026 (a claim for damages for breach of contract having been filed the same day), the Claimant applied for an interim injunction in the following terms: i) The Defendant shall not continue the restriction / exclusion placed on the Claimant's practice as set out in the Defendant's letters of 21 February 2025, 15 October 2025 and 22 January 2026. ii) The Defendant shall immediately lift the Claimant’s restriction / exclusion (which was set out in the Defendant’s letters of 21 February 2025, 15 October 2025 and 22 January 2026) and take all necessary steps to allow him to return to clinical work forthwith. iii) Until after the trial of this action or further Order, the Defendant shall not take any steps to restrict the Claimant’s practice or exclude the Claimant in connection with any of the matters set out in the letters to the Claimant dated 21 February 2025, 15 October 2025 and 22 January 2026.

The Factual Background

[3]The Claimant has been employed by the Defendant since 2005. His practice comprises both breast surgery and general surgery, with the latter making up the minority (about 30%) of his practice. From 2013 until 2024, he held the role of Clinical Lead for breast services. He has received five Clinical Excellence awards, one of which relates to his contribution to the Defendant’s breast service.[4]As well as undertaking work for the Defendant the Claimant also, until his exclusion, undertook private work at Spire Washington Hospital. In addition, the Claimant was a director of Durham Surgical Services Ltd (“DSS Ltd”), and Cathedral Surgical Services Ltd (“CSS Ltd”), companies which were providing the Defendant with additional diagnostic breast clinics and operating capacity until 2025.

Key Events

[5]On 21 June 2024, the Northern Cancer Alliance (“NCA”) published a report on the Defendant Trust’s breast services, following a treatment variation peer review which examined the 694 breast surgery operations conducted by the Trust in 2023. The NCA report found evidence of significant deviation from national guidelines and best practice in the diagnostic workup of breast conditions and surgical treatment options. It categorised patients as red, amber or green based on identified deviations from evidence-based clinical practice. It found the Trust was an outlier as regards its re-excision rate (where additional surgery following initial breast surgery is undertaken). It found the Trust’s re-excision rate was 30%, double the regional average of 15%.[6]The Defendant responded to this report by working with the North East and North Cumbria Integrated Care Board to put safeguards in place to address NCA concerns. One of these safeguards was having external oncoplastic surgical input into the Trust’s weekly breast service Multi-Disciplinary Team (“MDT”) meetings. Another was obtaining support from an external Consultant Oncoplastic Surgeon, Matei Dordea, to provide leadership and support to the Trust’s breast service.[7]Early in 2025 Matei Dordea also undertook a review of all individual patient cases which the NCA had graded as red in is June 2024 report, identifying 68 patients who potentially met the threshold of “moderate harm”, which would trigger the Trust’s duty of candour. These cases were registered as clinical incidents on the Trust’s incident management system, for there to be further review to determine whether the duty of candour threshold had been met.[8]Between 15 and 17 January 2025, the Royal College of Surgeons of England (“RCS”) conducted an invited service review of the Trust’s breast service. Informal feedback from this review was provided in January 2025, indicating significant problems within the breast surgery services and recommending immediate external support.[9]On 18 February 2025, Matei Dordea raised concerns relating to a more recent case (“the Index case”), which had been discussed at the breast services’ MDT on 12 February 2025. He was concerned about the potential inappropriate use of a Fine Needle Aspiration test (“FNA”). The NCA report had criticised the use of this practice. FNAs pose a significant risk of false negatives for cancer, particularly when these are not image-guided, because the needle is small and it may be in the wrong place.[10]In the Index case, the histology outcome for the patient’s FNA was graded as C1, which means inconclusive. No repeat biopsy was performed and the patient was discharged on 3 September 2025. The letter of discharge, electronically signed by the Claimant, described the outcome as “normal”. On 1 February 2025, the patient had an excision for what was understood to be a benign fibroadenoma. It transpired to be malignant. Her cancer was metastatic. Mr Dordea viewed the case as triggering the duty of candour and was concerned that no safety incident report had been raised in the week since the case had been discussed at the breast service MDT meeting.[11]Following this incident, on 20 February 2025, the Trust forbade the use of FNAs by any of its breast surgeons. On 21 February 2025, the Claimant attended a meeting with the Trust’s then Chief Executive, Sue Jacques; the Care Group Director, Richard Geary; Consultant Breast Surgeon, Keith Callanan; the Deputy Director, Medical Workforce, Paul Cummings and the then Executive Medical Director, Mr Jeremy Cundall, who was the Responsible Officer for the Trust at the relevant time.[12]Mr Cundall informed the Claimant that he had decided to temporarily restrict the Claimant from performing breast cancer surgery with effect from 25 February 2025 (“the February 2025 Decision”), but that the Claimant could continue carrying out breast surgery on benign cases. No restrictions were placed on the Claimant doing breast clinics. No restrictions were placed on the Claimant’s general surgery work. By a letter of the same date explaining the restriction, Mr Cundall indicated that there would be a period of retraining to take place in the coming months with the aim of restoring the Claimant to full clinical practice as soon as possible.[13]Similar measures were imposed on all incumbent breast surgeons within the Trust, who were required to temporarily cease performing breast cancer surgery pending the retraining. At the same time, the Trust decided to cease all external diagnostic breast services work.[14]On 24 and 25 February 2025, the Trust rang each of the 68 patients identified by Mr Dordea as meeting the threshold of moderate harm and opened duty of candour conversations with them.[15]In March 2025, the Trust established a Breast Surgery Response Programme, led by Lorraine Nelson, Executive Director of Operations, and Kathryn Burn, formerly Executive Director of Nursing. The purpose of the response programme was to bring together all work on patient safety, governance, service stabilisation and transformation of the breast service; and to ensure proactive communication with stakeholders, given the concerns identified through the NCA review, the RCS review, and Mr Dordea’s review of the cases graded red by the NCA. The Response Programme’s work was overseen by an oversight and delivery group which included external representatives from NHS England and the Care Quality Commission as well as the North East and North Cumbria Integrated Care Board.[16]The Response Programme set up a Breast Clinical Reference Group to define consistent thresholds for when the duty of candour applied and to discuss and review cases of concern. From April 2025, a full patient safety incident investigation (“the Look Back exercise’”) commenced to understand potential and actual harm to patients of the Trust’s Breast Service between 1 January 2023 and 21 February 2025. This exercise is still ongoing. A dedicated telephone support line and email address for patients to communicate any concerns they may have about the breast service was also established in April 2025.[17]On 2 April 2025, following a meeting with Mr Bhatti to discuss the training plan, Mr Cundall wrote to the Claimant, with an initial outline of certain elements of this plan (further details were to be provided following discussion with NHS Resolution). He also indicated that he planned to initiate an MHPS [Maintaining High Professional Standards in the NHS] investigation into the Index case, but that this could not commence immediately as he was awaiting input from the Clinical Reference Group:
“A Clinical Reference Group has been established and it will provide a benchmark regarding whether appropriate advice was provided in C1 cases. Whilst I am keen to advance the MHPS investigation, I am not in a position to appoint a Case Investigator until the CRG has provided its findings. I will then contact you again [...].”
[18]Mr Bhatti undertook the remedial training steps identified in Mr Cundall’s letter of 2 April. Between 7 and 9 April 2025, he attended a three-day Advanced Skills in Breast Disease Management Course. He also applied to join the Association of Breast Surgery and attended a course on the duty of candour.[19]On 11 April 2025, the RCS published its report of the Defendant’s Breast Service. The RCS found significant issues with the quality of diagnosis, treatment, MDT meetings and clinical governance within the breast service. The RCS found that unnecessary, excessive and inadequate surgery had taken place. It identified weaknesses in MDT governance and recommended improvements to ensure robust multidisciplinary coordination.[20]On 23 May 2025, the Defendant provided the Claimant with details of the proposed outstanding elements of the re-training plan entitled “3 Stage Remedial Training and Assessment”. The training’s stated aim was described as to “ensure that the Trust’s Breast Surgeons are aware of the full range of breast treatments and surgery options available to patients”.[21]The training plan was devised in conjunction with the Trust’s NHS Resolution Practitioner Performance Advisor, senior colleagues at neighbouring Breast Units, and advice from the Association of Breast Surgeons. It set out three stages of training to enable incumbent practitioners return to full practice, which consisted of: i) a two-week observational placement at another breast centre; ii) three sessions of Case Based Discussions with external assessors to demonstrate the knowledge acquired; iii) applying the knowledge acquired by attending two Breast Clinics, advising patients and writing up the clinical discussion detailing treatment options and consent taken (subject to external expert review).[22]In an email of 28 May 2025, the Claimant’s medicolegal consultant acknowledged receipt of the plan and indicated:
“I will need some time to consider with my member this .....In accordance with MHPS it is said that all actions taken on a practitioner must be proportionate and as it stands this remediation plan looks rather onerous and disproportionate.”
[23]On 23 June 2025, the Claimant’s solicitors, Weightmans LLP, wrote to the Trust on his behalf questioning the necessity for the restriction on his practice pending the retraining and formally requesting re-instatement of his clinical duties with respect to breast cancer surgery. On 11 July 2025, Mr Cundall responded, explaining the need for the three-stage training and the associated restriction on the Claimant’s practice.[24]On 31 July 2025, the Claimant initiated the Trust’s Resolution Procedure in which he questioned the necessity of the restriction on his clinical practice and the proportionality of the proposed training package: “The restriction and suggested retraining package, which has grown substantially over time, is disproportionate to any of the issues in this case and department.....I have confirmed throughout that I am willing to co-operate where required, but given the findings of all the reviews what is now proposed is wholly disproportionate to the issues identified and not a fair reflection of what the reviews were suggesting”.[25]The Claimant attended a meeting with Mr Cundall on 22 September 2025 to discuss the proposed retraining. The Claimant’s concerns with respect to the plan were discussed. This meeting was summarised by Mr Cundall in a letter dated 29 September 2025.[26]The Claimant followed up his complaint under the Dispute Resolution process on a number of occasions. On 3 October 2025 he was informed that as the complaint related to decisions taken as part of the MHPS investigation it had been referred to the Case Manager overseeing the matter.[27]On 15 October 2025, Mr Cundall informed the Claimant that he had decided to restrict Mr Bhatti from carrying out any clinical practice, whether breast related or not (“the October 2025 Decision”). That meeting was followed by a letter from Mr Cundall to the Claimant of the same date, providing the following reasons for his decision:
“As you are aware, a number of actions were taken earlier in the year linked to the review of the Breast Service and a number of incidents that prompted the initiation of a Patient Safety Incident Investigation. This resulted in some restrictions being put in place regarding your practice. You will also be aware that a formal investigation is now commencing into some concerns regarding your practice under the maintaining High Professional Standards in the Modern NHS (MHPS) and the Trust's Conduct and Capability Procedure for Medical and Dental Staff. My initial view was that the existing restrictions that were in place on your practice were sufficient pending the conclusion of the MHPS investigation. However, I have reviewed the situation and have decided that there is now a need to impose further restriction. The reason for this is twofold. Firstly, I have been made aware that a number of existing Breast Service patients have been in contact with the Trust following publication of the RCS report, to express concern about your presence in the Service in circumstances where they may need to return to the Trust for treatment. Whilst the existing restrictions that are in place can mitigate the potential risk associated with physical treatment, the potential risk of psychological harm to patients who attend the Breast Service and may encounter you there, is not one that is mitigated by the existing restrictions. Consequently, and bearing in mind the need to protect the interests of patients, I consider further restrictions to your practice to be necessary. The second reason for my decision to impose a further restriction is connected to your refusal to fully engage with the training plan that has been put in place. Specifically, your refusal to attend a placement at North Tees Breast Unit and agree to the necessary Case Based Discussions and Clinic Assessments. Given the context surrounding the training plan, your refusal to engage is a serious concern and is an issue that will be added to the existing Terms of Reference for the MHPS investigation. This gives rise to serious concerns about your insight and judgment more generally and I therefore consider that it is in the interests of patients that you do not carry out any clinical practice at this time. Therefore, it is my decision that as of now, you are restricted from carrying out any clinical practice. This includes both breast work and your general surgical practice. For clarity this includes all operative, ward, outpatient and MDT work. I would emphasise that your practice has been restricted, but you are not excluded from the workplace. You can carry out nonclinical duties and by copy of this letter I have asked the Surgery Care Group management team to work with you to arrange non-clinical duties. As I said, you are free to attend hospital sites and departments but as I explained you should not go to the out-patients department at UNHD. You continue to receive full pay in accordance with your Terms and Conditions of Service.”
[28]On 5 November 2025, the Trust initiated a formal MHPS investigation into certain matters relating to the Claimant’s conduct and capability under its Conduct, Capability Issues for Medical & Dental Staff Policy (“the Investigations Policy”). Dr Kamaruddin, acting as Interim Medical Director for the Trust, took on the role of Case Manager.[29]The Terms of Reference identified the following matters to be investigated:
“1. You are to investigate the circumstances around whether or not Mr Bhatti discharged patient K206903 from his care on 3 September 2024 following diagnostic investigations for breast cancer in the knowledge that the patient had a fine needle aspiration performed on 17 August 2024 which was categorised as C1 and an inadequate specimen for accurate cytological assessment. If so, did this decision result in a missed and/or delayed diagnosis for the patient? 2. You are to investigate the circumstances around whether or not Mr Bhatti discharged patient 4308765 from his care on 6 September 2024 following diagnostic investigations for breast cancer in the knowledge that the patient had a fine needle aspiration performed on 26 August 2024 which was categorised as C1 and an inadequate specimen for accurate cytological assessment. If so, did this decision result in a missed and/or delayed diagnosis for the patient? 3. You are to investigate the circumstances around whether or not Mr Bhatti appropriately followed up patient B379374. The patient was diagnosed with breast cancer in 2020 and underwent a wide local excision. Chemotherapy was arranged but the patient cancelled the appointment. The oncologist followed this up and informed Mr Bhatti of the cancellation. Was this then appropriately followed up by Mr Bhatti? 4. To investigate the circumstances around a further 19 cases from 2024 and ascertain whether these patients were or were not appropriately discharged from Mr Bhatti’s care. The patients have all been recalled to the breast service following Fine Needle Aspiration performed under the care of Mr Bhatti.[...] 5. Further I would like you to investigate the circumstances around Mr Bhatti’s practice regarding Fine Needle Aspirations […] 6. Whether or not Mr Bhatti was involved in any clinical incidents and complaints in 2021, 2022, 2023, 2024 and, if so, whether he included any mention or reflection of the complaints or incidents in his appraisals for each of those years. 7. The circumstances around Mr Bhatti’s engagement/non-engagement with a retraining plan aimed at restoring him to full clinical practice the plan having been sent to him on 23 May 2025 by the Executive Medical Director.”
[30]In November 2025, a clinical governance review into the Trust’s breast service (“the Aubrey Report”) was published. This found that there were a number of shortcomings with the Trust’s Breast service including: i) Patient harm due to outdated clinical practices and unnecessary procedures; ii) Failure to follow national guidance and modern standards; iii) Contract management and governance failures.[31]The report criticised the governance and oversight arrangements that were in place with respect to DSS Ltd and CSS Ltd, of which the Claimant was a director. It identified a conflict of interest arising from the Claimant’s dual role as Clinical Lead for breast services and as director of CSS Ltd in particular:
“[t]his dual role raises important governance and conflict of interest considerations, as decisions about service delivery and remuneration could be influenced by personal interests rather than solely by patient or Trust priorities”
. It contained an allegation that the Claimant had on occasion seen private patients in the same clinical setting in which he was seeing NHS patients at Spire Washington Hospital.[32]On 22 December 2025, the Trust amended and extended the Terms of Reference for its investigation, adding to its scope the examination of the circumstances in which a small number of patients chose to self-fund private care, with the question for investigation being the information provided to these patients by Mr Bhatti with respect to the NHS’s ability to undertake the care, although in some cases the investigator was also requested to consider the timeliness and appropriateness of care provided by Mr Bhatti.[33]On 22 January 2026, Dr Kamaruddin, who had succeeded Mr Cundall as the Trust’s Responsible Officer and Case Manager for the investigation, wrote to Mr Bhatti, extending the timeframe for the MHPS investigation to 19 March 2026. He also reviewed and maintained the existing restrictions on Mr Bhatti’s activities (“the January 2026 Decision”).

The Relief sought and the Decision at issue

[34]The draft Order proposed by the Claimant seeks the removal of all three decisions taken by the Defendant to impose restriction/exclusions on him – the February 2025 Decision, the October 2025 Decision and the January 2026 Decision.[35]The Claimant accepted that the February 2025 and October 2025 Decisions, while relevant to the evaluation of the January 2026 Decision, and to the wider claim between the parties, do not properly fall within the scope of the injunctive order that is sought today, which is directed towards the lifting the restriction/exclusion as continued by the January 2026 Decision.[36]The relief sought by the Claimant contains mandatory elements: the Defendant is required to lift its restriction/exclusion on the Claimant’s practice and take all necessary steps to allow him to return to clinical work. It also contains prohibitive elements, as the Defendant is required to abstain from taking subsequent decisions re-imposing a restriction/exclusion in connection with any of the matters set out in February 2025 Decision, October 2025 Decision and January 2026 Decision ahead of trial.

Approach to interim relief

[37]The approach that the Court must take when considering whether to grant an interim injunction in this context was summarised by Nicklin J in Jahangiri v St George’s University Hospitals NHS Foundation Trust [2018] EWHC 2278 at [§57]:
“i) the Court should apply the familiar three-stage test from American Cyanamid -v- Ethicon Ltd (No.1) [1975] AC 396 : Mezey -v- South West London & St. George's Mental Health NHS Trust [2006] EWHC 3473 (QB); [2007] ICLR 237 [11] (Underhill J): a) is there a serious issue to be tried? b) would damages be an adequate remedy? c) does the balance of convenience favour the grant of an injunction? ii) as to whether there is a serious issue to be tried: a) an employer's right to suspend an employee must not be exercised on unreasonable grounds: McClory -v- Post Office [1993] 1 All ER 457 (David Neuberger QC) and Watson -v- Durham University [2008] EWCA Civ 1266 [22] (Lawrence Collins LJ); b) suspension without reasonable grounds may amount either to a breach of contract: Watson [21]; or a breach of the implied term of trust and confidence: Gogay-v- Hertfordshire County Council [2000] IRLR 703; and Watson [22]; c) when the effect of the injunction is to require reinstatement of an employee, the Court must have proper regard to the fact that the decision to exclude requires an assessment of evidence and an exercise of judgment which is likely to require the balancing of several difficult factors and that decision was for the employer to make: Mezey [28]. Correspondingly, to succeed in a claim for breach of contract, the claimant would have to demonstrate that the decision to suspend was unreasonable or irrational. That may mean that the Court should give rather more weight to a provisional assessment of the merits than would be necessary on a pure application of the 'serious issue to be tried' test: Mezey [11]. iii) as to whether damages will be an adequate remedy, in employment cases where the complaint is over suspension, a suspension that is found to be unlawful may well not be capable of being fully healed by an award of damages: Mezey [26]; Watson [1], [24].”
[emphasis added] a) is there a serious issue to be tried? b) would damages be an adequate remedy? c) does the balance of convenience favour the grant of an injunction? ii) as to whether there is a serious issue to be tried: a) an employer's right to suspend an employee must not be exercised on unreasonable grounds: McClory -v- Post Office [1993] 1 All ER 457 (David Neuberger QC) and Watson -v- Durham University [2008] EWCA Civ 1266 [22] (Lawrence Collins LJ); b) suspension without reasonable grounds may amount either to a breach of contract: Watson [21]; or a breach of the implied term of trust and confidence: Gogay-v- Hertfordshire County Council [2000] IRLR 703; and Watson [22]; c) when the effect of the injunction is to require reinstatement of an employee, the Court must have proper regard to the fact that the decision to exclude requires an assessment of evidence and an exercise of judgment which is likely to require the balancing of several difficult factors and that decision was for the employer to make: Mezey [28]. Correspondingly, to succeed in a claim for breach of contract, the claimant would have to demonstrate that the decision to suspend was unreasonable or irrational. That may mean that the Court should give rather more weight to a provisional assessment of the merits than would be necessary on a pure application of the 'serious issue to be tried' test: Mezey [11]. iii) as to whether damages will be an adequate remedy, in employment cases where the complaint is over suspension, a suspension that is found to be unlawful may well not be capable of being fully healed by an award of damages: Mezey [26]; Watson [1], [24].” [emphasis added][38]The heightened emphasis on the provisional assessment of merits outlined above is consistent with more general guidance on mandatory interim relief.[39]As the Defendant is required to lift the exclusion and take all necessary steps to allow the Claimant to return to clinical work forthwith, the mandatory aspects of the relief that is sought require the Court to have a high degree of assurance that the claimant will establish his right at trial: Nottingham Building Society v Eurodynamic Systems plc [1993] FSR 468, per Chadwick J at [§474].

Serious issue to be tried

[40]The Claimant submits that there are, at the very least, strongly arguable grounds that the Defendant was and is acting unlawfully by:(a) restricting the Claimant from carrying out breast cancer surgery in February 2025;(b) excluding the Claimant from all clinical practice and from the UHND outpatient department from October 2025; and(c) continuing that exclusion, including following a review in January 2026.[41]The Defendant’s case is that the Claimant has no real prospect of succeeding at trial; alternatively, there is no serious issue to be tried that the Defendant has acted in breach of the Claimant’s contract of employment. The Claimant has not been excluded, and it is a matter for the Defendant’s discretion whether to restrict his work. The decision of 22 January 2026 is rational.

Trust investigations and exclusions – the legal framework

[42]Clause 17 of the Claimant’s written contract of employment provides that:
“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 Disciplinary Rules and Procedures, or that your professional competence has been called into question, we will resolve the matter through our the [sic] Trust’s Disciplinary and Capability procedures, subject to the appeal arrangements set out in those procedures.”
[43]The Disciplinary and Capability procedures referred to are the Investigations Policy, which it is common ground is incorporated into the Claimant’s contract of employment. Under the Investigations Policy, it is the role of the Medical Director to act as Case Manager when the Trust conducts investigations into concerns about a consultant. It is also the Case Manager’s role to consider whether a doctor should be excluded or should have their practice restricted during an investigation.[44]At §3 the Investigations Policy states that it should be read in conjunction with “High Professional Standards in the Modern NHS: a framework for the initial handling of concerns about doctors and dentists in the NHS” (“MHPS”).[45]The Claimant contends MHPS is thereby expressly incorporated into his contract of employment. The Defendant disputes this, on the basis that MHPS is not referred to in Clause 17.[46]The Defendant’s letter to Mr Bhatti dated 15 October 2025 states that:
“a formal investigation is now commencing into some concerns regarding your practice under the maintaining High Professional Standards in the Modern NHS (MHPS) and the Trust's Conduct and Capability Procedure for Medical and Dental Staff.”
Its letter to Mr Bhatti dated 5 November 2025, enclosing the Terms of Reference for the Investigation, headed “MHPS investigation”, states that that the investigation will be undertaken in accordance with Part 1 of MHPS. The Terms of Reference expressly draw the investigator’s attention to the provisions of MHPS and the Trust's own policy in several places throughout the document.[47]I make no decision as to whether MHPS was expressly incorporated into the Claimant’s contract of employment on the evidence before the Court at this stage. I note that even in the case that it was not so incorporated, where, as in this case, an employer has made express reference to conducting the investigation in accordance with MHPS and it has communicated this to their employee on several occasions, the provisions of MHPS are relevant to determining whether the employer has acted in a manner that is consistent with the implied trust and confidence obligation, Jain v Manchester University NHS Foundation Trust [2018] EWHC 3016 (QB), [§35] (“Jain”).

MHPS provisions on exclusion

[48]Part II of MHPS set outs the circumstances in which a doctor can be excluded from practice and the need for such exclusions to be reviewed on a regular basis, including that:• where a practitioner is excluded, it is for the minimum necessary period of time: this can be up to but no more than four weeks at a time; [§3]• all extensions of exclusion are reviewed and a brief report provided to the Chief Executive and the Board; [§3]• exclusion from work is a temporary expedient which should be reserved for only the most exceptional circumstances; [§5]• the purpose of exclusion is to protect the interests of patients or other staff and/or to assist the investigative process when there is a clear risk that the practitioner’s presence would impede the gathering of evidence; [§6];• alternative ways of managing risk must be considered; [§7]• formal exclusion may only take place after the case manager has first considered whether there is a case to answer and then considered, at a case conference, whether there is reasonable and proper cause to exclude. The NCAA [now PPA] must be consulted where formal exclusion is being considered. If a case investigator has been appointed he or she must produce a preliminary report as soon as is possible to be available for the case conference; [§15]• formal exclusion must only be used where: ◦ either there is a need to protect the interests of patients or other staff pending the outcome of a full investigation of: allegations of misconduct; concerns about serious dysfunctions in the operation of a clinical service; concerns about lack of capability or poor performance of sufficient seriousness that it is warranted to protect patients; ◦ or the presence of the practitioner in the workplace is likely to hinder the investigation. [§17][49]The requirements above only apply to exclusion decisions. They do not apply to decisions by which a lesser restriction is imposed on a practitioner. Paragraph 7 MHPS specifically identifies “restricting activities to administrative, research/audit, teaching and other educational activities” as one of the ways to manage risk, whilst avoiding exclusion.

Implied terms

[50]The Claimant’s contract of employment with the Trust should be read as including the following terms that are implied as a matter of law: i) As mentioned in the context of the relevance of MHPS above, the Trust will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence (Malik v BCCI [1998] AC 20). ii) The Trust will exercise any discretion conferred on it by its published procedures rationally and in good faith, and in accordance with the implied term of trust and confidence. It will exercise its discretion in a manner which is not arbitrary or capricious and which takes into account relevant matters / does not take into account irrelevant matters (Braganza v BP Shipping Ltd [2015] ICR 449, [§§24 & 30]). It will act fairly in the conduct of any disciplinary procedure (Chakrabarty v Ipswich Hospital NHS Trust [2014] EWHC 2735, [§§113(b) and 154])].

The relevance of the February 2025 and October 2025 Decisions

[51]The Defendant submitted that the February 2025 and October 2025 Decisions are irrelevant to the Court’s evaluation of this application. In its view, the real question, in determining whether to grant an injunction in this context, is whether the alleged breaches have caused the loss which the Claimant seeks to remedy. In the Defendant’s view the only decision that is at issue is the January 2026 Decision, as the breaches of contract alleged in relation to the February and October 2025 decisions are not the cause of the matter about which the Claimant complains: his current restriction. On that basis, it submits the sole relevant focus for the Court in determining to grant relief is the January 2026 Decision, which is the operative cause for the Claimant’s current exclusion/restriction. To this effect, the Defendant relies on Laing J’s judgment in Al-Mishlab v Milton Keynes Hospital NHS Foundation Trust [2015] EWHC 191 (“Al-Mishlab”) at [§§95-96].[52]The Claimant accepted that the injunctive order that is sought today is more properly directed towards the January 2026 Decision. However it submits that the February 2025 and October 2025 Decisions are relevant to the evaluation of the January 2026 Decision, which is based on those decisions.[53]In the dynamic factual context – in particular as new grounds of concern were identified by the Trust to justify its January 2026 Decision - the Court’s primary evaluation of whether to lift the current restriction/exclusion is to examine whether the Defendant’s most recent decision to continue to apply the restriction/exclusion was lawfully taken.[54]However, contrary to the Defendant’s case, the decisions leading to the January 2026 Decision, and upon which it is based, may, depending on the circumstances, be relevant to that evaluation. They cannot be dismissed as irrelevant without closer consideration of their potential relevance to the January 2026 Decision.[55]In Al-Mishlab, Laing J did not exclude all earlier alleged breaches of MHPS from consideration: only those earlier breaches which were not sufficiently substantial to undermine the lawfulness of a decision to exclude which, on the substance, was within the range of reasonable responses:
“Although the Claimant’s exclusion or restriction continues, I am being asked to consider a long period, during which, from time to time, the Trust failed to follow MHPS. Those breaches were not the subject of proceedings […] For me reviewing the history of the exclusion the real question about those breaches is whether they caused the central loss of which he now complains, that is his exclusion or restriction. [...] For that reason and for the reasons given above, I have ignored what for these purposes, I regard as inconsequential breaches of MHPS by the Trust. That is not to say that these are inconsequential or that I condone them.”
Laing J [§§94-97]

The February 2025 Decision

[56]The Claimant’s case is that he has strong grounds upon which to contend that the Trust’s restriction preventing him from carrying out breast cancer surgery pending his retraining in February 2025 amounted to a breach of the implied term of trust and confidence and was an irrational exercise of discretion.[57]He submits that in circumstances where:(a) the Trust did not articulate concerns about his ability to carry out breast cancer surgery or advise about oncoplastic options;(b) the restriction was linked to retraining on oncoplastic surgery options;(c) the Claimant is not an oncoplastic surgeon and carrying out oncoplastic surgery is no part of his role;(d) all decisions for the appropriate way forward for patients are made collectively at multidisciplinary meetings involving the newly appointed oncoplastic surgeons and these surgeons would see those patients for whom oncoplastic options were appropriate; there was no reason why his breast surgery needed to be restricted pending the retraining.[58]On consideration of the evidence before the Court and the parties’ submissions, I am not satisfied that the Claimant has strong grounds for submitting that the February 2025 Decision was irrational or breached the implied term of trust and confidence.[59]The February 2025 Decision was limited to restricting one aspect of the Claimant's practice only, namely cancer related breast surgery. No express contractual terms govern the exercise of the exercise of the Trust’s discretion to make such restriction decisions, nor are MHPS terms relating to exclusion relevant. The discretion should be exercised rationally and in good faith, in accordance with the implied term of trust and confidence.[60]The rationale for the decision was set out in a letter from Mr Cundall to the Claimant dated 25 February 2025. It was then articulated more fully in a letter to Mr Bhatti’s Medical Protection Society (“MPS”) representative dated 14 March 2025 as follows:
“[...] In 2024, a peer review of the service by the Northern Cancer Alliance highlighted further concerns. The review team also undertook analysis of all breast surgery operations performed in 2023, identifying cases of care where there was potential variation in relation to non-compliance with national guidance and/or current best practice. Identifying cases where the duty of candour threshold may have been met was not the intention of this review, and the scope of the review was limited to patient notes, making it challenging to assess, for example, the probability of psychological harm to patients. However, some cases were identified as having received care below the expected standard that may require duty of candour notification. There is however, an overarching requirement for the Trust to be open regarding failings in care that needs to be to be considered. Following the Northern Cancer Alliance review the Trust has worked with stakeholders - in particular the North East and North Cumbria ICB - and taken a number of actions to address the risks identified which have been monitored through quality meetings and latterly through a Quality Improvement Group. In addition given the challenges around duty of candour the Trust took legal and clinical advice from a number of parties and requested a clinical review of the cases involved. The Royal College of Surgeons England was invited to perform a service review of the breast surgery, breast radiology and breast non-surgical oncologist service at CDDFT on 15-17 January 2025. This was agreed as part of the ICB/NHSE/CQC quality meeting in October 2024. Notwithstanding the actions put in place following the peer review, a further incident escalated to the Associate Director of Nursing (ADN) and the Associate Medical Director (AMD) for Patient Safety on 18th February 2025 highlighted that some practices that were understood to have stopped may not have completed ceased. This combined with the ongoing Duty of Candour conversations being brought to the attention of the ADN and AMD for Patient Safety has prompted the initiation of a Patient Safety/ Safety Incident Investigation. In addition to the above, another significant factor affecting Trust decision making was the imminent arrival of two new oncoplastic breast surgeons at the beginning of March 2025. Prior to their arrival the Trust did not have any breast surgeons formally trained in oncoplastic techniques. Therefore, at the insistence of the North East and North Cumbria ICB all new patients coming to breast clinic have been issued with an information leaflet. The leaflet advises patients that should their care require specialist oncoplastic services the trust would need to refer them to another breast unit within the region. With the arrival of the two oncoplastic breast surgeons that issue has to a certain extent being resolved. However, it leaves patients potentially receiving a two-tier service from the Trust based upon whether they are referred to and fall under the care of either our incumbent surgeons or one of the new oncoplastic appointees. That clearly leads to inequity in patient care which the Trust is seeking to address by the formal training programme currently being sought.”
[61]The Trust’s letters of 25 February and of 4 March 2025 each outline the same two reasons for the decision to impose the restriction. The first was patient safety concerns triggered by the Index case, which led to the Chief Executive explaining to Mr Bhatti that she did not have the assurance she required that the safeguards agreed following the negative NCA review were being followed. The second was to upskill surgeons to address inequity of access to services following the appointment of two oncoplastic surgeons.[62]The Claimant highlights the lack of connection between the inconclusive FNA in the Index case, which was a diagnostic matter, and the restriction imposed on breast surgery, particularly given the lack of expressed concerns with respect to his own abilities to undertake cancer breast surgery.[63]However, the restriction imposed was not specific to him – it was imposed on all incumbent breast surgeons, and it was not the sole measure adopted by the Trust to address the safety concerns to which the Index case gave rise. The Trust simultaneously banned the use of FNA tests altogether and immediately ceased to use external diagnostic services (such as those provided by DSS Ltd and CSS Ltd).[64]In the context of these measures, given the broader criticisms in the NCA report to which the Trust expressly refers in its February 2025 Decision, in particular concerning high re-excision rates following breast surgery, and given the significance of the failures that the Index case revealed in the treatment pathway for potential breast cancer patients, both of which had a bearing on patient safety, I do not consider that there are strong grounds to submit that the Trust’s decision, in addition to banning FNAs, for all incumbent surgeons to cease breast cancer surgery whilst the consequences of the Index case were better understood, was outwith the range of reasonable responses open to the Trust in light of the systemic issues and specific safety concerns that had arisen with respect to treatment pathways of patients with breast cancer.[65]The second reason given was the Trust’s wish to put in place training to upskill incumbent surgeons on oncoplastic surgery treatment pathways. The Claimant is not an oncoplastic surgeon. He challenges the necessity for such training given that he would not be undertaking this surgery and that the presence of oncoplastic surgeons at MDT would ensure that cases requiring oncoplastic surgery were identified.[66]Mr Bhatti’s argument is based on the premise that oncoplastic surgery pathways are not something with which it was necessary for him to engage. This argument does not address the Trust’s concerns, which were to avoid a two-tier service and to ensure that all surgeons were able to advise on all treatment pathways. Whilst Mr Bhatti may have a different perspective to the Trust on this issue, given the general concerns articulated with respect to the quality of the breast services and the need for oncoplastic treatment pathways to which the Trust was responding with assistance from wider stakeholders such as NHS Resolution, I do not consider that he has strong grounds for submitting that the importance the Trust invested in the proposed training requirement was irrational.[67]The training was designed to address shortcomings in the Trust’s breast services of which the Claimant had until very recently been Clinical Lead, and its purpose was to raise the awareness of all consultants of important new treatment pathways. As Mr Bhatti was aware, the three-stage training process was developed in conjunction with the Trust’s NHS Resolution Practitioner Performance Advisor and also senior colleagues at neighbouring Breast Units, together with advice from the Association of Breast Surgeons, in the context of a recognised need to modernise and upskill the Trust’s breast services, which had further been confirmed in the publication of the RCS report in April 2025.[68]The arguments advanced by the Claimant presuppose that the Trust must justify its decision by establishing the restriction was necessary, and that only a direct connection between a restricted activity (surgery) and an identified concern (concerns with respect to his surgical ability) would meet the requirement of necessity. Restriction decisions such as this one need only be rational and taken in good faith; the threshold of necessity is reserved for exclusion decisions under the MHPS (and even in such cases the Trust has a margin of appreciation in deciding what action it considers necessary).[69]The Claimant may have grounds to disagree with the Trust’s response, but given the specific safety concerns that had arisen in the Index case, and the substantial systemic failings which the retraining package was devised to address, together with the caution and effort that was invested by the Trust in putting the package together, he does not have strong grounds to submit that the Trust’s approach to retraining and the associated restriction took into account irrelevant considerations or were otherwise outwith the range of responses a Trust could reasonably take in the circumstances.

Failure to progress training

[70]The Claimant submits the Trust’s failure to progress the promised retraining and its failure to review the need for the restriction on him conducting breast surgery for cancer during this time was a further breach/irrational action.[71]Following the February 2025 Decision, initial elements of required training were identified and shared with the Claimant in early April 2025, who undertook the immediate steps outlined.[72]Following the consultation with external expert stakeholders and NHS Resolution, the Defendant suggested a three-phase training package for all incumbent surgeons on 23 May 2025. The Claimant was expressly invited to discuss any questions he might have with Mr Cundall.[73]The Claimant’s adviser responded on 28 May 2025 by questioning the proportionality of the package and requesting time to consider it. The Trust again offered a discussion with Mr Cundall.[74]On 4 July 2025, the Claimant’s solicitors wrote to the Trust, requesting the Claimant’s re-instatement on the basis that the restriction pending retraining was not required.[75]On 11 July 2025, the Trust responded setting out why it considered the training to be critical and a restriction pending its completion necessary, as follows:
“However, it is not correct to state that “it is unlikely that Mr Bhatti will see patients requiring OPS” [oncoplastic surgery]. The referral of any patient into Breast Clinic requires consultants to have knowledge of the full range of procedures that are available so that they can be appropriately treated or referred onwards to an appropriate colleague. Therefore, the Trust clearly does need to be assured that Mr Bhatti is up to date and has knowledge of the full range of oncoplastic procedures that are available (regardless of not having the training to deliver those procedures). The Trust needs to be assured that Mr Bhatti can articulate the treatment options that are available to patients (including the oncoplastic options) when he sees patients in Breast Clinic. In turn, this will then mean that the Trust can be assured that the patient can make an informed choice about the treatment that they want to receive and that the trust has full legal consent from the patient to proceed. Therefore, the 3 stage plan sets out how the Trusts (sic) seeks to gain that assurance and support Mr Bhatti to return to full practice. In the interim as Medical Director and Responsible Officer, I have partially restricted Mr Bhatti’s practice as set out above. This is the minimum restriction necessary at this time to ensure patient safety.... The next stage to progress this matter is for Mr Bhatti to engage with the 3 stage remedial plan. Once I have his agreement to the plan, a 2 week placement at North Tees Breast Unit can be finalised and arrangements made for the Case Based Discussions and Clinic Assessments to be made.”
[emphasis added][76]On 31 July 2025, the Claimant initiated the Trust’s Resolution Procedure in which he questioned the necessity of the restriction on his clinical practice and the proportionality of the proposed training package[77]The Claimant met with Mr Cundall on 22 September 2025 to discuss the proposed retraining, at which the Claimant’s concerns with respect to the plan were discussed. This meeting was summarised by Mr Cundall in the letter dated 29 September 2025. On the Claimant’s question as to whether the retraining plan might be modified in any way, the letter records that Mr Cundall did not exclude that phases two and three might be shorter than envisaged, depending how the Claimant demonstrated his knowledge. In the letter Mr Cundall again requested the Claimant’s agreement to the plan:
“I strongly encourage you to agree to the training plan and I will leave it to you to take further advice from Dr Ellison.”
[78]Mr Cundall’s letter to the Claimant of 29 September 2025 re-iterated the importance of this training:
“More widely, the context of what is happening in the Breast Service is very important. I told you (as I had previously) that with the commencement in post of the Trust’s two new oncoplastic surgeons, there is now inequity of service in terms of advice and treatment that can be offered to patients. [...] In addition, there is significant scrutiny at this time of the Breast Service. Reports have shown it to be failing in some areas and patients have suffered harm.I, as Responsible Officer and the Trust board must have assurance that our consultants have the appropriate knowledge to advise patients of all available treatments and pathways. The training plan was put together with the guidance of NHS Resolution to provide that assurance.”
[emphasis added][79]On the evidence available at this interlocutory stage (in particular the evidence of the care invested by the Trust in preparing the retraining package, the Claimant’s failure to take up invitations to discuss his concerns on 23 and 28 May 2025, the correspondence between the parties in which the Trust repeatedly asked for the Claimant’s consent to the training package) I do not consider that the Claimant has strong grounds to establish that Trust’s failure to progress the training was irrational.[80]Nor, particularly in the absence of any express term in MHPS requiring a review of existing restrictions, are there strong grounds to submit that the failure to formally review the related restriction was irrational or unfair in the absence of such remedial training having been undertaken, particularly given the Trust’s written and oral explanations of its position in respect of the continued necessity of the restriction pending retraining on 4 March, 2 April, 11 July, 22 September and 29 September 2025.

October 2025 Decision

[81]The Claimant submits that the Defendant’s exclusion of the Claimant from all clinical practice and from attending the outpatient department in October 2025 amounted to a breach of the implied term of trust and confidence and was an irrational exercise of discretion.[82]The Claimant submits that the Trust in making this decision effectively shut off all his existing workstreams, so that although the October 2025 Decision was expressed to be a restriction of clinical practice, as the only administrative work Mr Bhatti undertook was in support of his practice, in substance it was an exclusion, as the effect upon him has been equivalent. Accordingly, he relies on the Defendant’s departure from the terms of MHPS relating to exclusion to submit that the October 2025 Decision was in breach of the implied term of trust and confidence and an irrational exercise of the Defendant’s exercise of the discretion to exclude.[83]The Defendant relies on the clear distinction in MHPS, as recognised in the caselaw, which distinguishes between the Trust’s decision-making obligations in relation to exclusions and those that relate to decisions to restrict. It submits the decision at issue is not an exclusion, so that the MHPS provisions relating to exclusion, which is reserved for exceptional situations, are not relevant. It submits that a situation, such as the present, where the Claimant has been prevented from doing some duties (clinical duties) and permitted to do others (administrative work), is not an exclusion, as exclusion implies exclusion from all work and is equivalent to suspension: Al-Obaidi v Frimley Health NHS Foundation Trust [2018] EWHC 2494 (QB), per Martin Spencer J at [§§53- 54].[84]The October 2025 Decision is clearly expressed as a restriction. It states:
“You can carry out non-clinical duties and by copy of this letter I have asked the Surgery Care Group management team to work with you to arrange non-clinical duties.”
[85]The terms of MHPS clearly envisage that a practitioner may be restricted from all clinical practice, without this amounting to an exclusion. Paragraph 7 MHPS specifically identifies, as a measure that is lesser than an exclusion:
“Restricting activities to administrative, research/audit, teaching and other educational duties. By mutual agreement the latter might include some formal retraining or re-skilling.”
[86]In this case, however, the Claimant submits that his sole administrative duties were tied to his clinical work. His evidence was that the impact of this decision on his work, though expressed as a restriction, was to preclude him from continuing all his existing work.[87]In the Claimant’s most recent annual review, the Defendant adopted terms which are consistent with the October 2025 Decision being a restriction, as it stated that the Claimant was free to undertake non-clinical duties. However, there is no evidence before the Court today, other than the Trust’s proposed retraining package, that any steps were taken by the Defendant to arrange non-clinical duties, and the Claimant’s evidence is that he is not undertaking any such. The Defendant asserted that the Claimant was free attend MDTs. The Claimant contended this was new to him.[88]On the evidence available (and I emphasise this is a provisional finding), given the dramatic effect the October 2025 Decision had on the Claimant, in effect ceasing all his ongoing work, and the lack of any other work (save the contested training) being offered to the Claimant by the Defendant, there are strong grounds to submit that the effect of the October 2025 Decision on the Claimant was tantamount to an exclusion decision. Accordingly, the Defendant, acting fairly in the conduct of its disciplinary process, consistently with the implied term of trust and confidence as Jain envisages, should have had regard to the relevant substantive MHPS provisions when making a decision having such a wide-ranging effect on a practitioner’s practice. Where the effect of a decision is to prevent an employee from undertaking all their existing work and no alternative work is offered, it is not unduly onerous to expect an employer to consider whether such a measure is necessary in the circumstances.[89]Even exclusion decisions, where the threshold of necessity applies under MHPS, are recognised to be a matter for the employer’s discretion, exercising its judgment in the context of a particular workplace, the relationships in that workplace, the conduct of a particular individual, and the reality that no risks can be taken with the safety of patients, so that the court exercises a Wednesbury review: Al-Mishlab, per Laing J [§§ 89-90]. An employer’s exercise of discretion involves the consideration of a number of complex factors, not all of which the court is well-placed to evaluate, and this is particularly so in the case of a clinical setting where patient safety is involved.[90]The Claimant contends that there was no rational basis for an exclusion based on the concerns expressed by the Trust, none of which go to the Claimant’s clinical practice with respect to breast surgery or indeed his general practice. He highlights that three weeks previous the Trust had requested that he increase the number of breast clinics that he was undertaking. He also submits that the exclusion affected him in contexts such as multi-disciplinary meetings, where no patients were present. Last, he submits that there was a complete failure to consider alternatives to exclusion and whether it was necessary to restrict all clinical practice including general non-breast related practice.[91]The concerns identified by the Trust as the reason to impose the additional restriction on all Mr Bhatti’s clinical practice were:(a) psychological harm to patients if they were to encounter the Claimant whilst attending the breast service and(b) the Claimant’s refusal to fully engage with the training plan that had been put in place.[92]In respect of (a) the Claimant highlights the Trusts’ failure to provide him with evidence in respect of the concerns allegedly expressed by patients. The Trust is not obliged to provide evidence of its concerns to the Claimant: under MHPS, the obligation upon exclusion is to tell the practitioner of the reasons why formal exclusion is considered as the only way to deal with their case, not to evidence it to the employee’s satisfaction. The Defendant’s witness evidence is that in mid-September 2025, a number of existing patients expressed concerns to Mrs Burns, the Executive Director of Nursing leading on the Breast Surgery Response Programme, about their psychological wellbeing if they encountered the Claimant when attending the breast service for treatment. She communicated these concerns to Mr Cundall ahead of the October 2025 Decision. The existence of these concerns is a relevant factor to which the Defendant could have regard; it relates to patient care and safety for which the Trust is responsible.[93]In respect of (b) it is a matter in dispute between the parties as to whether the Defendant failed to offer the Claimant the first stage of this training, a placement at an external trust, or whether the placement failed as a result of the Claimant’s refusal to agree with the proposed retraining plan. On the evidence available at this stage, in light of the facts highlighted above with respect to the Defendant’s alleged failure to progress the retraining programme, I do not consider that the Claimant has strong grounds to argue that the Defendant’s concerns with respect to the Claimant’s willingness to engage with the training process were irrational.[94]The Claimant held an important role in the Trust’s Breast Service. Although he may not have been named in the NCA and RSC reports, these had identified shortcomings in the service of which he had been the Clinical Lead since 2013 which the Trust, taking advice from the North East and North Cumbria Integrated Care Board, was acting to address by measures such as the appointment of two oncoplastic surgeons to develop oncoplastic capability. The Trust had on a number of occasions explained to the Claimant that it considered it critical for all incumbent surgeons to be trained so that they could advise on all treatment pathways, including oncoplastic options, to avoid a two-tier service. The training package itself was formulated with the Trust’s NHS Resolution Practitioner Performance adviser, senior colleagues at neighbouring Breast Units together with advice from the Association of Breast Surgeons.[95]In these circumstances, despite the Trust’s repeated offers of discussions and written explanation for the importance that it attributed to this training on 11 July and on 29 September 2025, the fact that its former Clinical Lead did not agree the proposed retraining package, the Trust was entitled to take the view that:
“Given the context surrounding the Training plan, your refusal to engage is a serious concern and is an issue that will be added to the existing terms of reference for the MHPS investigation. This gives rise to serious concerns about your insight and judgement more generally and I therefore consider that it is in the interests of patients that you do not carry out any clinical practice at this time.”
[96]As regards the Claimant’s submission that the Defendant failed to consider any alternatives to exclusion, MHPS provides that exclusion should only be used where it is necessary to protect the interests of patients, or to avoid hindrance to investigation. It must not be seen as the only course of action, and lesser alternatives should be considered.[97]The Defendant clearly considered that the existing restriction on the Claimant’s cancer surgery practice was too narrow, and needed to be augmented. The reasons provided by the Trust in support of its wider restriction (the psychological harm to breast patients and the Claimant’s reluctance to retrain in an area that the Trust considered critical to improving its breast service) are matters that go beyond breast cancer treatment to include non-cancer breast surgery.[98]However, it is not clear how these concerns relate to the Claimant’s general surgery. The identified risk of psychological harm related to the Trust’s breast patients only, was specifically tied to existing patients returning to the breast service following the publication of the RCS report. The Claimant’s perceived failure to engage in remedial training to upskill in oncoplastic breast treatment pathways is cast in general terms as an error in the Claimant’s judgment and insight. However, it is not apparent from the October 2025 Decision, or from evidence or submission before the Court, how this general concern with respect to the Claimant's judgment in responding to criticism and the need for upskilling of his breast practice in the context of an underperforming breast service meant that it was necessary, to protect the interests of patients, for the Claimant’s non-breast surgery to be restricted. Nor is there any evidence before the Court today that the Trust expressly considered this question, as its position is that this is irrelevant to the matter before the Court today, which is the January 2026 Decision.[99]In the absence of any expressed concerns connected to the Claimant’s general surgery, or wider concern about the Trust’s performance of general surgery, and given MHPS’s emphasis on avoiding exclusion wherever possible unless required to protect the interests of patients, I consider that the Claimant has strong grounds to argue that the Trust, in reaching the October 2025 Decision, failed to consider alternatives its decision, which was tantamount to an exclusion; in particular, that in breach of the implied term of trust and confidence, it failed to consider whether it was necessary for all the Claimant’s clinical practice, in particular his non-breast surgery, to be restricted.

January 2026 Decision

[100]The January 2026 Decision was taken by Dr Kamaruddin, who succeeded Mr Cundall as the Trust’s Responsible Officer and also took on the role of Case Manager for the Claimant’s MHPS investigation. He extended the timeframe for the MHPS investigation, and decided to maintain the restrictions imposed on the Claimant:
“In addition, I have considered further restriction from clinical practise put in place by Mr Cundall on 15 October 2025. For the reasons set out in Mr Cundall's letter of 15 October and also the nature of the concerns set out in the MHPS terms of reference of 22 December 2025, it is my view that the restrictions should remain in place.”
[101]The January 2026 Decision was taken in dynamic context – since the October 2025 Decision, significant developments had taken place. The Trust initiated a formal MHPS investigation into the Claimant on 5 November 2025, and later that month the Aubrey Report into the Trust’s breast service was published. On 22 December 2025, the Terms of Reference for the MHPS investigation were amended to include further grounds of investigation (“the Amended TORs”).[102]The Claimant alleges that he has strong grounds to argue that the January 2026 Decision was irrational, in breach of the implied term of trust and confidence. He relies on the fact that it makes no reference to patient safety, to his surgical ability or practice, and that no concerns with probity were raised save beyond the Amended TORs. He submits the Amended TORs related mainly to FNAs, the majority of which he had not performed himself and which are no longer undertaken. He submits no concerns were raised with respect to his non-breast surgery and that there was again a failure to consider alternatives to exclusion.[103]The Defendant submits that in light of the context, not only does the evidence suggest that it was not irrational to continue the restrictions, the extent and nature of the concerns about the Claimant suggest that a failure to continue the restriction would itself have been irrational. It highlights that the concerns in the Amended TORs go well beyond “wrong test” concerns and raise real questions with respect to patient safety, one of these concerns being that the Claimant discharged without follow-up 21 patients undergoing investigation for breast cancer when it remained unknown if they did or did not have cancer. The Amended TORs also raised issues of probity and conflicts of interest.[104]Dr Kamaruddin, who took the January 2026 Decision, gave evidence that in light of the concerns identified in the MHPS investigation it would not be possible to allow the Claimant to undertake any clinical work at all. Although he agreed that Mr Cundall’s reasons for the October 2025 Decision gave rise to concern, his evidence was that the Amended TORs gave rise to both clinical judgment and probity concerns such that in his view “restriction from all clinical practice pending the outcome of the formal investigation was the only possible course that sufficiently protected the Trust’s patients”. He considered the restriction to be necessary to protect patient safety, and that anything less would not be sufficient.[105]Contrary to the Claimant’s submission, these patient safety and probity concerns, which are abundantly clear from the factual matters and incidents referred for investigation in the Amended TORs, do not represent a change of position by the Trust.[106]The Amended TORs require the investigation of Mr Bhatti’s discharge of a number of identified patients, to determine in each case whether the discharge led to a missed or delayed diagnosis. It requests consideration of whether Mr Bhatti was involved in any clinical incidents or complaints from the time of the first external review by NCA in 2018 through to 2025, and whether he included any mention or reflection of the complaints or incidents in his appraisals for each of those years. In a number of cases, it seeks investigation of whether timely care was supplied by Mr Bhatti. It also identifies incidents in which it is alleged that Mr Bhatti informed individual patients that they could not be treated on the NHS in a timely way.[107]The Amended TORs make reference to specific cases, the majority of which been identified by the Trust’s Look Back Exercise, or alternatively stem from the findings of the Aubrey Report. They are not unfounded allegations. The Claimant requested specific evidence in support of the allegations, and countered the accuracy of some of the allegations, but those are matters for consideration as part of the Trust’s investigation process. The Trust in initiating the MHPS investigation, proceeded cautiously, after putting in place a clinical reference group to understand and benchmark its approach to FNAs. The Amended TORs are based on evidence that emerged from a careful Look Back exercise which was guided by a panel of experts, or based on the findings of an expert external review.[108]I recognise that given the matters in the Amended TORs went to the practitioner’s performance in a matter of patient safety in particular, the Trust’s decision is a complex one, in respect of which the decision-maker has expertise: “I accept that where issues reasonably judged to be significant are raised which go to a practitioner's performance, any Trust is entitled to adopt a precautionary approach...I cannot ignore that this was a decision resting on a professional judgement on an issue of patient safety. That being so, I believe it is right that I should give real weight to his assessment, which I consider to have been made in good faith.” per Swift J in Jain v Manchester University NHS Foundation Trust [2018] EWHC 306 [§39][109]After considering the evidence and the submissions of the parties, the Claimant has not in my view established that he has strong grounds to submit that the January 2026 Decision was irrational. The January 2026 Decision was based on serious safety and probity concerns which in the Trust’s view were necessary to protecting the interests of patients whatever clinical context in which the Claimant was acting.[110]Given that the January 2026 Decision was made on the basis of substantial additional concerns arising since the Trust last considered the restriction, I do not consider that the rationality of its decision to continue to restrict all the Claimant’s clinical practice in January 2026 is undermined by the fact that one of its earlier decisions, based on different factors, may be open to question. Had the Trust merely chosen to extend and maintain its earlier flawed decision without altering the grounds for the decision, this conclusion would be different. However, the Trust’s obligation in considering the restriction in January 2026 was to take a decision which took relevant factors into account as at that date, and its decision was based on significant and new safety concerns. Any approach which would undermine its ability to do so would not be the interests of patients.

Additional alleged breaches of MHPS procedure

[111]The Claimant further relies on a number of alleged breaches of MHPS process in support of its criticism of the October 2025 Decision and the January 2026 Decision. In particular, he relies on the interval of more than four weeks between the October 2025 Decision and the January 2026 Decision, and the failure to adhere to the detail of the decision-making protocol prescribed in MHPS.[112]As referred to above, the question in the context of an application such as this is whether the breaches complained of have caused the loss of which the Claimant complains (per Laing J in Al-Mishlab). This approach is also consistent with the court’s general reluctance to micro-manage employment procedures, Al Mishlab v Milton Keynes Hospital NHS Foundation Trust [2015] EWHC 3096 QB per Green Jat [§§16-20].[113]Although the Trust did not undertake a formal review of the restriction imposed on the Claimant between 15 October 2025 and 22 January 2026, the three months between the decisions were particularly eventful: on 5 November 2025, the Trust initiated its MHPS investigation into the Claimant. This was followed by the publication of the Aubrey Report later that month, and the Trust’s subsequent decision to extend the MHPS Investigation Terms of Reference on 22 December 2025.[114]The Claimant can have had no doubt that the Trust had growing concerns as regards his practice, as it made its these additional concerns clear to him in the evolving MHPS Terms of Reference. Further, it is clear, and would have been clear to the Claimant, from the intensification of the Trust’s expressed concerns that an earlier re-assessment would not have altered the substantive outcome for the Claimant[115]Similarly, I do not consider that the failure to commission a preliminary report and hold a case conference amounted to an irregularity capable of affecting the outcome of the decision. In reaching its position on the retraining package, the Trust was responding to systemic issues arising from evidence-based external reviews, taking expert external stakeholder advice. In reaching the January 2026 Decision, the Trust proceeded on the basis of evidence derived from identified patient incidents and a structured Look Back exercise. It formed a Clinical Reference Group and engaged with NHS Resolution and expert external stakeholders to ensure its approach to FNA incidents was benchmarked. The Trust’s correspondence with the GMC reveals it regularly re-evaluated its position on the Claimant's restrictions in a fast-moving landscape. In terms of the Trusts’ interactions with the Claimant, the Trust’s reasoning for all its decisions was clearly expressed and he was invited to discuss his concerns on the retraining on a number of occasions and the Trust met with him and set out the reasons for its concerns on several occasions.[116]Accordingly, I do not consider the Claimant has strong grounds to submit that had the MHPS processes been followed to the letter, he would not have rationally been excluded.

Balance of Convenience

[117]The relief that is sought by the Claimant today is prospective. The Claimant has accepted the January 2026 Decision is the proper subject of this application for injunctive relief, and I have found that there is no serious issue to be tried in relation to that decision.[118]Even if there were a serious issue to be tried, (which I have not found to be the case) the January 2026 Decision was founded on patient safety and probity considerations that are, and remain, of fundamental importance pending trial. As against this, a proportion of the negative impact suffered by the Claimant, in particular the damage to his reputation, has separately resulted from a BBC documentary at the end of 2025 in which the Claimant was named. If the balance of convenience were to require consideration therefore, it would weigh in favour of keeping the January 2026 Decision in place, as this is the course which gives rise to the lesser risk of harm and/or injustice.

Conclusion

[119]Accordingly, the application is refused. The Claimant should bear the Defendant’s costs, his application having been unsuccessful. Applying the principes in CPR Part 44 and taking a broad evaluative view of the work undertaken in the context of a one-day hearing, I summarily assess the Defendant’s costs in the sum of £47,000, allowing a modest reduction on account of junior and senior counsel fees, which in part exceed what was reasonably and proportionately required for this application. I do not consider any of the other arguments for reduction made by the Claimant to be well-founded. Accordingly, the Defendant’s costs are summarily assessed in the sum of £47,000, to be paid by the Claimant.