“1. You did not provide a full and honest account of the circumstances of the care of patient no. 167586 at the Serious Untoward Incident / Root Cause Analysis meeting 2010/8938 held on1 September 2010 ; and 2. You provided conflicting accounts of the circumstances surrounding the care of patient no. 167586 on8 June 2010 when she visited the patient in ICU and discussed her care with her family; and then on1 September 2010 at SUI / RCA 2010/8938.”
“Whilst it is necessary to set out formal employment arrangements in this contract the Trust recognises that you are a senior and professional employee who will usually work unsupervised and frequently have the responsibility for making important judgments and decisions. It is essential therefore that you and the Trust work in the spirit of mutual trust and confidence. You and the Trust agree to the following mutual obligations in order to achieve the best for patients and to ensure the efficient running of the service: • To co-operate with each other; • To maintain goodwill; • To carry out our respective obligations in agreeing and operating a Job Plan; • To carry out our respective obligations in accordance with appraisal arrangements; • To carry out our respective obligations in devising, viewing, revising and following the organisation’s policies, objectives, rules, working practices and protocols.” • To co-operate with each other; • To maintain goodwill; • To carry out our respective obligations in agreeing and operating a Job Plan; • To carry out our respective obligations in accordance with appraisal arrangements; • To carry out our respective obligations in devising, viewing, revising and following the organisation’s policies, objectives, rules, working practices and protocols.”
“Wherever possible, any issues relating to conduct, competence and behaviour should be identified and resolved without recourse to formal procedures. However, should the Trust consider that your conduct or behaviour may be in breach of acceptable practice or your code of conduct or that your professional competence has been called into question, we will resolve the matter through our discipline procedures, subject to the appeal arrangements set out in those procedures.”
“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 normal standards of behaviour, or that your professional competence has been called into question, we will resolve the matter through our disciplinary or capability procedures, subject to the appeal arrangements set out in those procedures.”
“Thirdly, I would, in any case, conclude that the words of clause 17 are sufficiently clear to incorporate terms of the Practitioner’s Disciplinary Procedure including terms concerning conduct hearings that might lead to dismissal (which were introduced into the Practitioner’s Disciplinary Procedure by reference to the Staff Disciplinary Procedure) and concerning the preparations and arrangements for such hearings. I do not accept that the reference to matters being resolved “through” disciplinary and capability procedures connotes that the procedures are to be followed only in outline or in broad terms. To my mind, it connotes that procedures are to be followed, providing and in so far as they are apt to be contractual and the wording of the relevant provisions indicates that they were intended to be mandatory.”
“Misconduct matters for doctors, as for all other staff groups, is a matter for the Trust to deal with and must be resolved locally. All issues regarding the misconduct of doctors and dentists will be dealt with under the Trust’s procedures covering other staff charged with similar matters. The Trust will nevertheless seek advice from the NCAS in conduct cases, particularly in cases of professional conduct.”
“4.23 An employee can appeal against a written warning or dismissal. They should do so in writing within ten working days of receiving notification of the outcome of the disciplinary meeting to the Chair of the meeting, setting out the grounds for their appeal. In exceptional circumstances this period can be extended. 4.24 A sub-committee of the Foundation Trust Board will hear the appeal (one executive director and one non-executive director). They will be supported by a member of the HR team. 4.25 The employee will be invited to an appeal meeting normally within seven working days of receipt of their letter and given five working days notice of the meeting. 4.26 There will be no further right of appeal.”
“In my judgment, Penry Davey J was plainly right, for the reasons he gave, to refuse to allow the High Court to become involved in the micro-management of disciplinary hearings. I would dismiss that ground of appeal and say no more about it, save to observe that the Trust will no doubt have the benefit of legal advice as to the admissibility of such evidence and its relevance or otherwise to the issues before them.”
“Given the significance of the decision of a capability panel to warn or dismiss a practitioner, it is important that a robust appeal procedure is in place.”
“The predominant purpose of the appeal is to ensure that a fair hearing was given to the original case and a fair and reasonable decision reached by the hearing panel. The appeal panel has the power to confirm or vary a decision made at the capability hearing, or order that the case is reheard. Where it is clear in the course of the appeal hearing that the proper procedure has not been followed and the appeal panel determines that the case needs to be fully re-heard, the Chairman of the panel shall have the power to instruct a new capability hearing.”
“Where the employee leaves employment before disciplinary procedures have been completed, the investigation must be taken to a final conclusion in all cases and capability proceedings must be completed wherever possible, whatever the personal circumstances of the employee concerned.”
“Every reasonable effort must be made to ensure the employee remains involved in the process. If contact with the employee has been lost, the Trust must invite them to attend any hearing by writing to both their last known home address and their registered address (the two will often be the same). The Trust must make a judgment, based on the evidence available, as to whether the allegations about the practitioner’s capability are upheld. If the allegations are upheld, the Trust must take appropriate action, such as requesting the issue of an alert letter and referral to the Professional Regulatory Body, referral to the Police, or to the Protection of Children Act List (held by the Department for Education and Skills).”
“Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing.”
“The opportunity to appeal against a disciplinary decision is essential to natural justice, and appeals may be raised by employees on any number of grounds, for instance new evidence, undue severity or inconsistency of the penalty. The appeal may either be a review of the disciplinary sanction or a re-hearing depending on the grounds of the appeal. An appeal must never be used as an opportunity to punish the employee for appealing the original decision, and it should not result in any increase in penalty as this may deter individuals from appealing.”
“Where the employee leaves employment before disciplinary procedures have been completed, the investigation must be taken to a final conclusion in all cases and capability proceedings must be completed wherever possible, whatever the personal circumstances of the employee concerned.”
“Procedures for Dealing with Issues of Capability”
“The Trust must make a judgment, based on the evidence available, as to whether the allegations about the practitioner’s capability are upheld.”
“A sub-committee of the Foundation Trust Board will hear the Appeal (one Executive Director and one non-Executive Director). They will be supported by a member of the HR Team.”
“In the letter from Ryan solicitors to Bridget Fletcher, dated30 November 2011 , they outline seven grounds for your appeal, which you wish to be addressed. It is our intention to address points 1, 2, 3, 5, 6 and 7 by way of a re-hearing. We propose to address point 4 by inviting the following witnesses to attend….”
“Statements from other witnesses which were included in the disciplinary hearing will be taken as uncontested, unless you inform us differently. If you wish to contest any of those statements, kindly respond with the direct relevance they may have to the two allegations, so that we can consider whether to include them. If you have any issues with what the Appeal panel proposes to do, in terms of procedure, witnesses or process, kindly respond with your concerns and any further requests for consideration.”
“We are grateful for the information you set out in your letter, and set out below the position from the perspective of Miss McMillan at this stage, with a view to assisting in arrangements for the Appeal, including any outstanding matters, which we address under separate headings.”
“We respectfully agree with the approach you have adopted to the Appeal, which is essentially that matters be dealt with by way of re-hearing.”
“I can confirm that Dr Catto will not be presenting the case on behalf of the Trust at the Appeal, since the panel will have pre-read all the relevant material, including the “Detailed Grounds of Appeal” document, which I received on21 February 2012 , and the supporting Bundle, which I received by post on Wednesday22 February 2012 .”
“I trust we have addressed the issues raised in your letter but if you have any further concerns or queries regarding the appeal process, kindly let me know as soon as possible.”
“16. Given the number and breadth of the challenges that had been made in the letter of appeal, the Defendant decided to offer the Claimant the facility of a re-hearing. This was communicated in the Defendant’s letter to the Claimant dated16 February 2012 to which detailed reference will be made at trial. By the said letter, the Defendant set out the form of the proposed appeal, and in particular, that: (i) the proposed re-hearing would give rise to a fresh determination of the allegations by the appeal panel; (ii) the appeal panel would have the full range of options available in terms of sanction as the original disciplinary hearing panel, one such option being an increase in the penalty. 17. The Claimant was specifically required, in response to the said letter, to state whether she had any objection to the form of appeal proposed, whether in terms of procedure, witnesses or process. 18. By its letter in reply dated17 February 2012 , the Claimant’s solicitors expressly stated that the Claimant agreed with the approach that the Defendant had proposed to adopt in relation to the appeal. In particular no objection was raised to the proposal that the full range of sanctions should be available to the appeal panel at the conclusion of the re-hearing. 19. The Defendant contends that the procedure for the conduct for the appeal, as set out in its letter to the Claimant of16 February 2012 , and as accepted by her, whether expressly, impliedly or by subsequent performance of the same, was of contractual effect and gave rise to binding obligations. Pursuant to such agreement: (i) the Defendant was required to afford the Claimant the facility of a disciplinary appeal by way of re-hearing rather than a more limited formal review; (ii) if misconduct was found, the Appeal panel would have available to it the full range of disciplinary sanctions; (iii) the Claimant and Defendant were each bound, pursuant to the express or implied term of the employment contract, to facilitate the proper performance and completion of the appeal process in accordance with the agreed arrangements.” (i) the proposed re-hearing would give rise to a fresh determination of the allegations by the appeal panel; (ii) the appeal panel would have the full range of options available in terms of sanction as the original disciplinary hearing panel, one such option being an increase in the penalty. (i) the Defendant was required to afford the Claimant the facility of a disciplinary appeal by way of re-hearing rather than a more limited formal review; (ii) if misconduct was found, the Appeal panel would have available to it the full range of disciplinary sanctions; (iii) the Claimant and Defendant were each bound, pursuant to the express or implied term of the employment contract, to facilitate the proper performance and completion of the appeal process in accordance with the agreed arrangements.”
“6. Paragraph 17 of the Defence is denied. At no stage did the Defendant notify the Claimant or her solicitors that the said letter constituted a contractual offer open for acceptance or rejection by the Claimant and which would abrogate or vary existing rights under her contract of employment. Nor was such letter so interpreted at any time by the Claimant or her solicitors. 7. At all material times the letter of16 February 2012 was treated by both the Claimant and the Defendant as containing suggestions as to the procedure to be adopted for the adduction of evidence during the Appeal process given the silence of the Disciplinary Code on such matters. At no stage did the Claimant or Defendant consider rights were being ceded by such correspondence. 8. The interpretation of the Claimant’s solicitors’ letter dated17 February 2012 as pleaded under paragraph 18 of the Defence is denied. The Claimant’s solicitor never sought nor received any express approval of the Claimant to abrogate her strict contractual rights and never communicated to the Defendant any acceptance of such a contractual abrogation or waiver. 9. Paragraph 19 of the Defence is denied. It is averred that to have the binding effect asserted by the Defendant there would have to be a clear offer and clear acceptance and express consideration and an intention to create legal relations and vary an existing contract in accordance with strict legal principles. This is denied.”
“If you have any issues with what the Appeal panel proposes to do, in terms of procedure, witnesses or process, kindly respond with your concerns and any further requests for consideration.”
“We respectfully agree with the approach you have adopted to the Appeal, which is essentially that matters be dealt with by way of rehearing.”
“We will offer you the facility of a full rehearing, if you agree that we can increase the penalty imposed by the original disciplinary panel.”
“It can be hard to reach a decision in the circumstances, and what is appropriate depends on the expertise one is dealing with. This case went to a hearing and this was part heard. Now there is an interim application to prevent the second half. The context of employment with internal disciplinary proceedings is therefore one where, on the one hand, serious consequences might happen to the individual, but on the other is hardship to stop the process.”
“46. Ms Monaghan submits that there is no difference between contractual domestic disciplinary tribunals of the kind which regulate sporting and professional activities and the disciplinary body established by contractual agreement by the parties to an employment contract. She submits that the principles of finality and fairness to a party are equally apposite here. 47. I do not accept this submission. In my judgment it is wrong to describe the exercise of disciplinary power by the employer as a form of adjudication. The purpose of the procedure is not “a determination of any issue which establishes the existence of a legal right”, as Lord Bridge put it in Thrasyvoulou, nor is it properly regarded as “determining a dispute”. 48. In the employment context the disciplinary power is conferred on the employer by reason of the hierarchical nature of the relationship. The purpose of the procedures is not to allow a body independent of the parties to determine a dispute between them. Typically it is to enable the employer to inform himself whether the employee has acted in breach of contract or in some other inappropriate way and if so, to determine how that should affect future relations between them. It is true that sometimes (but by no means always) the procedures will have been contractually agreed, but that does not in my judgment alter their basic function or purpose. The employer has a duty to act fairly and procedures are designed to achieve that objective. The degree of formality of these procedures will vary enormously from employer to employer. But even where they provide a panoply of safeguards of a kind typically found in adjudicative bodies, as is sometimes the case in the public sector in particular, that does not alter their basic function. It is far removed from the process of litigation or adjudication, which is in essence where this doctrine bites. 49. In my judgment, a case which is analogous to this is Mattu v University Hospitals of Coventry and Warwickshire NHS Trust[2010] EWCA Civ 641 ;[2012] IRLR 661 in which this court held that disciplinary procedures operated by an employer were not “judicial proceedings” within the meaning ofArticle 6 of the European Convention on Human Rights because the employer was not by that process determining civil rights. I said this (para. 101): “The decision to dismiss pursuant to a disciplinary process involves a claim by the employer that he is lawfully exercising contractual right. He is not purporting to act like a judge; he is protecting his own interests under the contract, albeit that this necessarily involves finding facts and interpreting the scope of the contract. He is asserting a right rather than determining it.” 50. I recognise that Mattu was concerned with what was at least in form a different question. But in substance I think that the Article 6 issue is virtually identical to the question whether the determination of the disciplinary body is res judicata. If the process is judicial and gives rise to a binding adjudication, it involves determining rights in the same way as a court does. Properly analysed it does not seem to me that this is what the employer is doing. 51. This is not to say that the doctrine of res judicata could never apply between employer and employee. It would, in my judgment, be open to an employer to agree that, say, a bonus payable to employees should be determined by an independent arbitrator and I do not see why in principle the doctrine should not apply to any such determination. But that would not be the natural inference to draw whenever the employer adopts and applies disciplinary proceedings staffed by his own personnel. The critical question is not the formality of procedures, but rather whether they operate independently of the parties such that it is appropriate to describe their function as an adjudication between the parties.” “The decision to dismiss pursuant to a disciplinary process involves a claim by the employer that he is lawfully exercising contractual right. He is not purporting to act like a judge; he is protecting his own interests under the contract, albeit that this necessarily involves finding facts and interpreting the scope of the contract. He is asserting a right rather than determining it.”
“If I had had concerns about fundal pressure I would have said so at the time and I didn’t.”
“Is this from when the doctor was pushing on my tummy?”
“I do not recall debriefing the patient in ICU later on8 June 2010 , although if I had debriefed the patient at this time, I am certain that I would not have attempted to attribute any specific aspect of the care provided as the cause of the splenic bleed as I did not/do not know what caused it. If I had, I would have informed the patient that there would be an investigation into the case, and all aspects, including the pressure required to deliver the baby, would be examined as part of this investigation as this was my consistent position all along. I reflected aloud to Dr Allen that I did not know what had caused it but acknowledged fundal pressure as a possible contributory factor. I did not make this comment to the patient.”
“…Was the bleeding caused by the pressure required to deliver the baby?”
“To that extent it means that we may have to conduct our process certainly as if we were first investigating that evidence ourselves and hearing that evidence and testing it and applying the appropriate canons of construction to it in order to interpret what we will determine in our view are the facts relative to the two allegations.”
“The range of steps that we have power to take are wide, as you are aware. No doubt, you would, if we get that far, seek to address us on that.”
“The way that we propose to deal with this, therefore, is to invite each relevant witness to come before us again today and we are not expecting them to be reading out their statement as they would if this were an employment tribunal. I will simply be asking them who they are and whether they confirm that the statement that we have in this bundle is, indeed, what they have given as a statement in the past. I will be asking them if there are any amendments or changes that they wish us to take into account, but I will be making them aware of the fact that they will no doubt face questions from you and we will possibly also have to ask questions. We are not here to referee an adversarial battle. This is, as we put it – and I use the word guardedly, because it has a specific legal meaning – it is an inquisitorial exercise. We can ask questions ourselves. We are anxious to get to the truth, to find out what we think is the appropriate finding as to what did or did not happen in relation specifically and only to the two allegations that are raised here. We will stick to that and I will ask you to stick to that, if you do not mind. Therefore, we have a list of witnesses that we are going to be hearing from and we will simply invite that witness to come before us now and I will guide them through what we want to hear about confirmation of their witness statement and then invite you to ask questions.”
“I understand that. I understand that there may be, what you and I would call, a causa sine qua non, a series of circumstances without which something might not have happened in the future. What we are looking at, for the purposes of today, is what did happen? What was said on a particular occasion? Was something said to the patient that then gave rise to the matter escalating or is the subject of the specific allegations being made here. Was there a full and honest account given of the circumstances at the RCA? I think we must stick to that, otherwise I fear we might be doing Miss McMillan a disservice unless we stick to the issues that are relevant to the allegations.”
“Can I just give you assurance – because actually we have heard that – what we are looking at is purely and only whether the two allegations that we are to determine today, have been made out by the witnesses produced by the management. Nothing else at all. We are not here to determine the appropriateness of the actions during delivery or anything of that kind. We are very clear about the two matters we need to look at, and they are only those two matters.”
“Is there any possibility that there might be some confusion between the two of you? Are you saying something different or are you saying essentially the same thing?”
“What we must still do is concentrate on whether or not the evidence before us establishes the allegations that have been made or anything related to those allegations that would emerge as sub-allegations, as it were. For example, reference to the fact that one allegation concerns conflicting accounts surrounding the care of the patient when visited on 8 June and then there is a reference to discussion of her care with the family, now that is not 8 June, that is 9 June, it is effectively a sub-genus of that allegation. It does mean, it seems to me, that we are still in a position at this stage to say, let us concentrate on those, and let us see what the evidence tells you about that, and let us hear what evidence Miss McMillan would like to give us about that, about those two matters and then any evidence in support of that.”
“I say this with some care because I see that in the past, that certain of the witnesses that Miss McMillan has sought to rely upon are, to a large extent, character witnesses. I can understand why a professional person might feel the need to call such witnesses to support their creditable character which may be irrelevant to the issue of credibility if there is a conflict of evidence which is of such a stark nature that it demonstrates that there is the possibility of dishonesty being committed. It is more relevant to the issue of what the appropriate outcome should be were there to be a finding of misconduct. I say that at this stage because, as I say, we still need to be concentrating on the two issues that are before us, and the witnesses can be, at this stage, confined to dealing with those two issues. Do you appreciate what I am saying here?”
“The other thing I do not really know why I did not sort of mention at the time, apart from it was sort of taken quite quickly before the previous hearing, is that about this fundal pressure which this case seemed to focus on, so about the degree of fundal pressure and whether it was excessive or not excessive. I was thinking to myself that, really, if anybody in that room had noticed excessive fundal pressure and would have spoken up about it, then Miss McMillan would have been the one to do it because if – I have been in with operations where she has felt that somebody has not done what she would expect at that time or how she would expect at that time and she would just said, “Nurse do it this way, you know, not that way”, sort of thing and that is the only thing I would add really.”
“We are receiving them in evidence, but I cannot say we are necessarily accepting them, that is a qualitative decision we have to make at a later stage.”
“Well, Sir, yes, I agree.”
“You see, one inference that may be drawn is that the reason why a member of the family, a total lay person might raise the question, “Was it the pressure?” was because somebody had said something. I think what we have been invited, in a sense, implicitly to infer is that it may well have been Miss McMillan who communicated that point of view. Can you help us with that in any way? Do you think that is possible?”
“If I had had concerns about fundal pressure I would have said so at the time, I didn’t have any concerns at the time and I do not have any now.”
“I have one question, however, to raise and it is this, and it is quite deliberate but meant to be a meaningful question, and that is this. I would like to understand from you and I would like to know from you on the record now whether you are satisfied that the conduct by us at this hearing today is reasonable and, so far as you are concerned – though you reserve your position with regard to what the outcome is – whether you are satisfied that procedurally it is unimpeachable and has been reasonable?”
“Sir, I can address the second of those with no hesitation whatsoever which is that, with respect, I think the manner in which you have conducted the proceedings today has been extremely professional, it has expedited your consideration, so I have no issue at all with the way in which you, as a Panel, have heard the case.”
“AJC also asked the couple whether at any time Liz McMillan had told them that excessive fundal pressure had contributed to the sequence of events. They did not recall any such discussion but did state that Liz intimated an investigation into the cause would be necessary.”
“If he (the patient’s father) had already asked this question as EM claims on the8 June 2010 at 0100 hours, the appeal panel believes it to be an unlikely question to ask again. If it wasn’t asked by the parent at 0100 hours it was misleading to Patient X to say it had been when EM spoke to her at 0800 hours.”
“2.4.13 It could therefore be possible that EM was asked the question by the family member on the 9 June and not the 8 June at 0100 hours EM recalls. This may explain why EM did not mention relaying the question to the patient on the 8 June at 8am until the appeal hearing, once she had considered the evidence given by SS and Dr AB, and for the sake of plausibility. 2.4.14 Accordingly, we found that EM did have a conversation with the parent at 1am and then had a conversation with Patient X at 0800 hours when she gave conflicting and misleading statements of what happened and what was said to either – and moreover that her subsequent statements (given in the RCA, the Investigation, the disciplinary process and to us) about these events also contained misleading and conflicting accounts. We regard this finding as serious because of the potential consequences in terms of the perceptions of the family and patient X, and in the context of EM’s duty as to openness being the Openness Lead in this matter.”
“…both the original and appellate decision of the employers were necessary elements in the overall process of terminating the contract of employment; that each part of the disciplinary process had to be examined to see whether any defect in procedure had resulted in an unfair hearing and if it had, whether that unfairness had been rectified by the appeal hearing; that the appeal hearing was in the nature of a review rather than a complete re-hearing and was insufficient to remedy the defects of the prior hearing; and that, accordingly, the industrial tribunal’s decision that the dismissal was unfair on procedural grounds was well founded…”
“If it has, then whether or not an appeal procedure has rectified the situation must depend upon the degree of unfairness of the initial hearing. If there is a rehearing de novo at first instance, the omission may be corrected, but it seems to ask that if there is to be a correction by the appeal then such an appeal must be of a comprehensive nature, in essence a re-hearing and not a mere review.”