Al-Mishlab v Milton Keynes Hospital NHS Foundation Trust [2015] EWHC 191 (QB)

Case No HQ13X05112

[2015] EWHC 191 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 02 February 2015

Before

MRS JUSTICE ELISABETH LAING DBE

Between

TALIB AL-MISHLABClaimant

MILTON KEYNES HOSPITAL NHS FOUNDATION TRUSTDefendant

Mr Neil Sheldon (instructed by Berrymans Lace Mawer Solicitors) for Claimant

Mr Ben Cooper (instructed by DAC Beachcroft LLP) for Defendant

Hearing Hearing dates: 10 11 15 16 and 17 December 2014

Judgment

MRS JUSTICE ELISABETH LAING

Introduction

[1]This is a claim by Mr Talib Al-Mishlab (“the Claimant”) for breach of contract against his employer, Milton Keynes Hospital NHS Foundation Trust (“the Trust”). The Claimant has been employed as a consultant since 2002 and has held a substantive consultant post with the Trust since 2004. He is a colorectal, laparoscopic and general surgeon.

[2]He asks for a declaration that he has been excluded from his employment in breach of contract and an injunction requiring the Trust to permit him to return to clinical practice. He has been excluded from all clinical work since 3 March 2011. Before that, he had practised subject to restrictions, from July 2010. He also claims damages because as a result of his exclusion by the Trust he has been unable to practise privately and has lost his income from that work. He has been paid his salary throughout that period.

[3]He has therefore been subject to restrictions on the work he could do, or excluded completely from doing any work, for over 4 years. Although the burden of proof is on the Claimant, I have to consider the length of this period very carefully against the relevant policy and contractual background; a document entitled “Maintaining High Professional Standards in the Modern NHS” (“MHPS”). The express purposes of MHPS include that NHS employers should only use exclusion in the most exceptional circumstances, when it is strictly necessary, for the shortest possible period, and that alternatives to exclusion must be considered. Under paragraph 35 of MHPS, there should normally be “a maximum limit of 6 months’ exclusion, except for those cases involving criminal investigations of the practitioner concerned”.

[4]The Claimant was represented by Mr Sheldon, and the Trust by Mr Cooper. I am grateful to both counsel for their able and helpful submissions, and to both legal teams for the way in which they marshalled the many documents which have been generated by this case. Both counsel summarised the relevant facts by reference to what Mr Sheldon referred to as the significant milestones in the case, and I have relied heavily on their summaries for what I say about the facts in the next section of this judgment.

[1]The facts 2 July 2010: the initial restrictions

[5]At the relevant time, Dr Lanzon-Miller was the Trust’s Medical Director. In a letter dated 2 July 2010 he raised concerns about the Claimant’s surgical practice in the performance of “major colorectal surgery”. He did not express concerns about any other aspect of his surgical practice. He identified a general concern about “behaviours” and, in particular, a “perceived reluctance to take advice.”

[6]Restrictions were then placed on the Claimant’s practice pending investigation. The concerns expressed by Dr Lanzon-Miller were reflected in the restrictions placed on the Claimant’s practice pending investigation. He was prohibited from doing “major” colorectal surgery. He was allowed to continue “less major surgery, outpatients, administrative work, teaching…..”. Further details of the procedures the Claimant was still allowed to do were given in an e-mail dated 14 July 2010.

[7]When the concerns were raised about his practice in June 2010, the Claimant supported an external review. In cross examination, the Claimant accepted that he did not have any objections to the Royal College of Surgeons (the “RCS”) being the relevant external body. Dr Lanzon-Miller, Professor Wetherill and Dr Mehdi of the Trust explained in their evidence that the RCS, as the body ultimately responsible for training surgeons, provided the definitive standard on surgical practice. The purpose of bringing in the RCS was to get independent expert evidence about the Claimant’s practice.

Mr Wetherill’s first report

[8]Professor Wetherill is the Trust’s current Medical Director. At the relevant time, Mr Wetherill (as he then was) was a Clinical Director in the Trust. On 16 July 2010 Dr Lanzon-Miller appointed Mr Wetherill to investigate the case. The scope of the investigation was described to the Claimant by Mr Wetherill in the following terms:

“1. Your Laparoscopic Colorectal Surgery and its complication rates. 2. Your perceived attitude problems in terms of accepting advice.”

[9]On 15 October 2010 Mr Wetherill wrote to the RCS. He indicated briefly the “factors emerging” from his investigation. There were two strands: “Talib Al-Mishlab is regarded as an extremely pleasant and approachable Colorectal Surgeon” and “Concerns have been expressed by a number of clinical colleagues (both medical and para-medical) about his reluctance to accept that his patients have complications, as a result of which there appears to be a reluctance to further investigate/treat those complications in a timely manner”.

[10]Mr Wetherill completed his investigation report on 14 December 2010. A copy was sent to the Claimant for his comments. The report is thorough and detailed. It was based on a review of the available documents, and on interviews with 29 of the Claimant’s clinical colleagues. The Claimant himself was not interviewed. It is the most extensive survey of the opinions held by clinical staff at Milton Keynes Hospital about the Claimant's behaviour and personality. In the course of their assessment in early 2013, by contrast, the performance assessors from the General Medical Council (“the GMC”) interviewed 8 members of clinical staff at Milton Keynes Hospital. 26 of Mr Wetherill’s interviews were recorded and transcribed.

[11]Mr Wetherill could not reach any conclusion about the Claimant’s comparative complication rates. The views he expressed in his report reflected the two strands he described to the RCS. A number of interviewees questioned the Claimant’s attitude to complications from major colorectal surgery. But Mr Wetherill stated:

“Universally, all who have had contact with Mr Talib Al-Mishlab found him to be a pleasant, approachable Consultant......Nobody that I interviewed had anything but praise for Mr Talib Al-Mishlab’s approachability. I have not found any evidence to suggest that his conduct in general is anything but professional.”

[12]The report nonetheless reflected concerns, expressed by some interviewees, that the Claimant was reluctant to take advice, and slow to admit that he might have made a mistake.

[13]In his 20 January 2011 response to Professor Wetherill’s preliminary report, the Claimant denied that many of those who had worked with him found him reluctant to accept that his patients had complications and to take advice about complications. He also denied that there had been delays in investigating patients with complications.

[14]Despite saying in cross examination that he had not seen the evidence supporting the allegations, the Claimant accepted that he had, by that point, seen all of the transcripts of the interviews concluded by Professor Wetherill. He therefore knew what the allegations were. 3 March 2011: the exclusion

[15]At the invitation of Mr Wetherill, a team of reviewers from the RCS visited the Trust from 2 March - 3 March 2011. Their terms of reference were:(i) to review complication rates for colorectal surgery; and

(ii) to review the Claimant’s “perceived attitude” towards these complications.

[16]An urgent meeting was called by the RCS reviewers on 3 March 2011. No minutes of the discussion were taken. But Dr Lanzon-Miller, who attended on behalf of the Trust, recalls that they said that the Claimant’s practice was “dangerous”. The Trust’s reaction to this meeting was immediate. The Claimant was prohibited from carrying out all forms of surgery, and was prohibited from entering “all clinical areas” of the Trust. This included his office because it contained “clinical notes and other information”.

[17]The RCS team told the Claimant at the end of their review that they had recommended that he should be suspended immediately, and that he should be referred to the GMC. The reason was two concerns: probity and clinical matters. There were two probity concerns: the funding arrangements of a trip to Italy and an allegation that he had vetted information at Grand Rounds. These concerns about probity were later investigated and found to be without foundation. There were four clinical issues: inappropriate case selection, failure to recognise complications, failure to take on board advice, and lack of insight.

[18]Dr Lanzon-Miller telephoned the Claimant on 3 March 2011. In this conversation, the Claimant told Dr Lanzon-Miller that he knew what the ’phone call was about. While the Claimant said that he was shocked, he did not suggest that Dr Lanzon-Miller had any other realistic option than following the RCS’s recommendation. In cross examination, the Claimant accepted that that Trust had to proceed on the basis that the allegations in the RCS’s review might be true.

[19]In cross examination, the Claimant also accepted that the RCS knew that he had been conducting minor operations before its review. In the light of this, Dr Lanzon-Miller said he had no option other than to exclude immediately under MHPS - it would have been irresponsible to do anything else, as he explained in his oral evidence.

[20]Dr Lanzon-Miller considered alternatives. He addressed the Claimant’s access to his own office and clinical areas in his witness statement and in his oral evidence. He referred to a letter headed “Immediate Exclusion”, dated 9 March 2011, in which he explained that the Claimant was excluded from clinical areas and his office because clinical notes and other information were kept there. He was allowed to visit other areas of the Trust, including the library. That letter also dealt with other work. I say more about this below.

[21]The RCS confirmed their recommendation in a letter dated 14 March 2011. On 18 March there was a meeting at which the Claimant was formally excluded. The Trust wrote on 28 March 2011 to him confirm this. The grounds for the formal exclusion were that things remained unchanged. 4 July 2011: the RCS Report

[22]The reviewers decided that the available data were “inadequate” to assess the Claimant’s complication rates for colorectal surgery. They focussed instead on the Claimant’s attitude to such complications. The reviewers examined the notes of 9 patients, who were selected from a cohort of 15 patients who had had complications after colorectal surgery (the other 6 patients had been treated by other surgeons). Two sets of records were described as regarded as “inadequate for review purposes”. So 7 cases were analysed. The reviewers discussed 2 of these 7 cases with the Claimant.

[23]The report concluded that the overwhelming impression was of a surgeon who was professionally arrogant, dismissive of others, overconfident in his abilities and fundamentally lacking in insight. The report emphasised that no surgery is free from risk and that because of his lack of insight, the Claimant posed a risk to patients. The Trust submits, and I accept, that as the RCS already knew that the Claimant was still doing minor surgery, they were drawing a conclusion about the general risks from lack of insight. I also accept the submission that the Claimant’s criticism of the Trust’s response to the RCS report, based on the fact that the RCS had not specifically examined his performance of minor surgery, misses the point. The point is that any surgery creates risks and a surgeon with the characteristics described by the RCS is a potential risk to patients whether he is doing minor, or major, surgery.

[24]At a meeting on 8 August 2011 the Medical Protection Society (“the MPS”), representing the Claimant, asked for the Claimant to be allowed to do audit work and go to meetings. This request was discussed in the meeting and Dr Mehdi considered it in a letter dated 26 August 2011. Dr Mehdi explained in that letter (and in his evidence) that audits involved the exercise of clinical judgment.

[25]The 26 August letter also explained that the purpose of morbidity and mortality (“M&M”) meetings was freely to discuss issues of judgment, so that it would be inappropriate to have someone present in the capacity of an observer. There was a clear concern that the Claimant’s presence might inhibit the discussion and so have an adverse effect on patient treatment. That concern is reflected in the contemporaneous documents and was referred to in Dr Mehdi’s evidence. Dr Mehdi also explained that the situation had changed since the Claimant’s exclusion, as the Claimant had been given copies of the interview transcripts with the Wetherill report. It is submitted, and I accept this, that the Trust’s concern that the Claimant’s colleagues might feel intimidated and inhibited in their discussions was a proper concern.

[26]The Claimant was allowed to take part in Continuing Professional Development (“CPD”) and to use the library. Dr Lanzon-Miller’s evidence was that the Claimant was only excluded from clinical areas. He was free to use the doctors’ mess, which Dr Lanzon-Miller described as the focal point of the hospital.

[27]An external placement was also later arranged for the Claimant at UCLH to enable him to have contact with clinical meetings, without the risks arising from the poor relations within the Trust. The Trust was keeping under review what the Claimant could be permitted to do and making judgments to facilitate the Claimant’s contact with clinical settings while minimising the risks.

[28]On 15 August 2011 the Claimant responded to the RCS report. He stated his commitment to “remediate” (or remedy) any deficiencies in his practice and /or behaviour. He warned of the dangers of “de-skilling” if his exclusion was maintained. He repeatedly stated his desire to work hard in improving his communication with his colleagues. He explained that he had gained insight from reading the report.

[29]The Trust did not lift the exclusion in response to the report or when it received the Claimant’s response to it. NCAS gave the Trust clear advice that it had to consider alternatives to exclusion. 7 October 2011: Professor Winslet’s reports

[30]In early October 2011 the Claimant provided the Trust with 7 reports prepared by Professor Winslet, Professor of Surgery and Head of Department at the Royal Free Hospital, which considered the treatment the Claimant had provided in the 7 cases analysed by the RCS reviewers. Professor Winslet’s instructions set out the background and asked him to give his “general views on the standard of care” provided by the Claimant, by reference to a list of issues such as patient selection, consent, and surgical technique. Professor Winslet was asked to divide his report into various sections, one of which was his opinion as to the treatment provided by the Claimant to each of 7 patients, and one of which was “a separate section addressing the concerns raised by the Trust and the RCS”. When Mr Wetherill came to write his final report, he had not seen Professor Winslet’s instructions. He inferred from the form and contents of Professor Winslet’s reports that Professor Winslet had been asked to given an opinion on professional negligence. That meant that Professor Winslet’s conclusions and those of the reports of the RCS, and those of Professor Carlson were not directly comparable. I have read the instructions, and they do not expressly ask for an opinion on professional negligence. But it seems to me both that in the light, for example, of section 3 of the report, Mr Wetherill’s conclusion was a reasonable one for him to make, and that it is likely that that may well have been the way in which Professor Winslet interpreted his instructions.

[31]The Claimant submits that these reports broadly supported his management of the 7 cases. They did contain criticisms of some aspects of the Claimant’s management of these difficult cases. The Claimant also submits that they showed that the criticisms made in the RCS report, which are said to have been based on a much less thorough analysis of the 7 cases in question, had been overstated.

[32]The Trust submits (and I accept) that because Professor Winslet’s reports conflicted with the RCS report the Claimant made clear by submitting them that he did not agree with the findings of the RCS report. In evidence, the Claimant agreed that Professor Wetherill would need to have his own expert to reconcile the two reports. I also accept that the provision of the Winslet reports did not change the position about exclusion because the extent of Claimant’s deficiencies was still unclear and the concerns of his colleagues had not changed.

[33]The Winslet reports did not lead to lifting of the exclusion. Their receipt was acknowledged by Mr Wetherill on 18 November 2011. He said that he would “go through” them. Advice continued to be given by NCAS that alternatives to exclusion should be considered. Representations to that effect were made on the Claimant’s behalf, to the extent that the Claimant should be permitted to do audit and go to meetings. The Trust continued to refuse any relaxation of the exclusion, even to this limited extent. 11 April 2012: Professor Carlson’s report

[34]On 30 November 2011 Professor Carlson, a member of the ACPGBI disciplinary panel, was commissioned by Mr Wetherill to “comment upon a series of issues relating to [the Claimant’s] colorectal surgical practice”.

[35]On 11 April 2012 Professor Carlson produced a report. He considered 5 of the 7 cases considered by the RCS reviewers in detail. Professor Carlson did not agree with all of the RCS conclusions, preferring in some instances the opinions of Professor Winslet and/ or of the Claimant.

[36]Professor Carlson identified failures in communication and team-working from his review of the documents. The evidence about one particular case indicated “a failure of communication and professional courtesy” in the unit; the Claimant had been “completely bypassed” in that case and there was a “remarkable failure of team working”. Professor Carlson noted that the Claimant had, in his response to the RCS report, expressed a desire to learn the lessons of the investigation by improving his communication with colleagues and patients, and then said this:

“In my opinion, this case actually raises as many questions about the department that TAM works in and the interpersonal and professional communications of those involved, as it does about TAM himself. Communication requires at least two protagonists.”

[37]Professor Carlson said that it was not possible to decide about complication rates without an accurate, risk-adjusted audit, and that the Trust was trying to address this “urgently”. Almost 2 years after Mr Wetherill’s appointment in part to investigate complication rates, such audit had yet to have been done.

July 2012: Mr Wetherill’s final report

[38]On 18 May 2012 the Claimant was sent a draft copy of Mr Wetherill’s report and was invited to comment on it. He responded. He accepted his share of responsibility for improving communication in the team. He explained what steps he had taken to develop his communication skills, including many CPD courses. He said he was willing to have behavioural coaching. He suggested that mediation would be useful in rebuilding professional relationships with his colleagues.

[39]The final report is dated July 2012. In the section headed “Methodology” the report says that its main concern was the 7 colorectal complication cases considered by the RCS review. The terms of reference were said to be the same as those in the initial letter of instruction; that is, to investigate:

“1.Concerns regarding major colorectal surgery including the nature, ration and management of complications arising from this. 2. Aspects of Mr Al Mishlab's behaviours, including a perceived reluctance to take advice from his surgical clinical and nursing colleagues.”

[40]So although it had taken him two years to complete, the scope of Mr Wetherill's investigation had not changed. It was still about the Claimant’s performance of major colorectal surgery. That is confirmed in the report of the Case Manager Dr Mehdi dated 2 August 2012. Although there would appear to have been some extension of the terms of reference agreed at a meeting on 29 September 2011 the additional matters did not expressly address the Claimant’s competence to carry out other forms of surgery. Professor Wetherill accepted in cross examination that he had rather taken his eye off the ball in relation to the question of complication rates.

[41]Professor Wetherill decided that communication by the Claimant with members of staff had been criticised throughout the investigation, across all those reporting on the Claimant’s clinical activities. The Claimant accepted in evidence that this was a fair conclusion and that communications are important to patient safety. He also accepted that many who worked with him said that he was reluctant to take advice and that this led to further patient safety issues.

[42]Professor Wetherill concluded that while the investigation was a snapshot of the Claimant’s practice, it revealed evidence of poor communication, technical errors in judgment and surgery, and poor note keeping, leading to concerns over patient care and safety. Some of the criticisms made by the specialists were “very serious criticisms”. The case manager should review the findings and their implications, and take note of the “poor and at times very poor interpersonal relationships” between staff and the Claimant and consider whether these were “rectifiable and recoverable”. The case manager should also take note of the Claimant’s indication of the lessons he had learnt and of the CPD courses he had been on.

[43]The Claimant accepted in his evidence that his reintroduction would need careful handling and that a hasty reintroduction would not be sensible and would be counterproductive. He also accepted that serious concerns had been raised about relations with colleagues, which would need to be rebuilt carefully.

August 2012: Dr Mehdi’s report

[44]Until Dr Mehdi had the Claimant’s comments on the final report, he could not take a final decision on the appropriate way to manage reintegration. This was delayed because of personal circumstances and eventually provided on 25 June 2012.

[45]Dr Mehdi’s report concluded that resolving the matter routinely through management was not possible, as there was no more senior laparoscopic colorectal surgeon who could assess, supervise and support the Claimant’s practice. He therefore recommended an NCAS assessment with prior refresher training at an external Trust. Dr Mehdi also observed that the investigation had raised issues “relating to the organisation more widely and not just to TAM”. These included colorectal MDT meetings, colorectal audits and “post operative care as a whole”.

[46]Before his exclusion, the Claimant had been a senior member of the colorectal team. The idea that he should be supervised by one of his juniors was problematic in the context of concerns that the Claimant had not properly taken on board criticism. The Defendant submits, and I accept, that the Claimant’s reliance on his demonstration of successful communication in his UCLH placement is misplaced. That placement involved no clinical work. It was therefore not possible for the Claimant to show by this that he could accept he had made mistakes. At a meeting on 13 August 2012, the Claimant himself agreed that an assessment process would be best undertaken at UCLH. 28 September 2012: the MPTS hearing

[47]The Claimant’s case was considered by the Interim Orders Panel (“the IOP”) of the Medical Practitioners Tribunal Service (“the MPTS”) on 28 September 2012. The purpose of the IOP is to consider what, if any, restrictions should be placed by the GMC on a doctor’s registration while concerns about his practice are investigated. The essential objective of the IOP is the protection of patient safety.

[48]The Claimant’s representatives submitted to the IOP that the concerns were limited to his colorectal practice and there was no reason at all why he should not be permitted to perform other types of surgery. The IOP appears to have accepted that submission. It imposed a condition which required the Claimant to be “closely supervised” by a consultant while performing colorectal surgery, but otherwise left him free to carry out all other types of surgery without restriction.

[49]The Claimant’s representatives urged the Trust to adopt that approach. Those submissions were rejected. The Trust maintained the position that exclusion was justified. 8 January 2013: the NCAS meeting

[50]On 8 January 2013 there was a meeting between the Claimant, the Defendant, and a representative of NCAS. It was agreed (in principle) that the Claimant should be permitted to return to clinical practice, subject to the limited restrictions imposed by the IOP on his colorectal practice. A “refresher placement” was considered necessary in the light of the fact that the Claimant had now been excluded from all clinical practice for almost 2 years.

[51]A detailed action plan was drawn up to help the Claimant return to clinical practice. The premise of the plan was that, on its completion, the Claimant would return to work as a consultant colorectal surgeon at the Trust. It was envisaged that the plan would take 6 months to complete. The Claimant would do the full range of clinical duties, subject to a structured reduction in supervision, with the objective of seeking a review of the restrictions imposed by the GMC “that will allow him to work towards unsupervised practice”.

[52]There was correspondence between the Trust and UCLH, aimed at securing agreement for remediation. The formal exclusion was lifted and converted into a restriction in order to facilitate the UCLH placement.

The “restrictions on practice”

[53]On 1 March 2013 the case manager, Dr Mehdi, wrote to the Claimant replacing his exclusion with a “restriction of practice”. He said: “You are not to work clinically at Milton Keynes Hospital nor attend or take part in clinically related activities, such as MDT meetings, morbidity & mortality meetings or audit meetings where direct clinical care issues are being discussed. You may attend on the premises including your office, training areas and the library, but not in clinical areas. You may attend educational events, as part of the audience or as an attendee on the event."

[54]In an email dated 19 March 2013 Mr Wetherill asked the Claimant to be moved to a different office in case he should find himself in the same room as a set of patient records “or other patient related data.” Shortly after this the Claimant was told that he would need to make an appointment to visit his own office, for a “pre-planned and agreed” reason. This seems to have been the result of the Claimant’s return to his office a few days before, which I describe below.

[55]On 5 April 2013 Mr Wetherill wrote to the MPS explaining that the Claimant could not share an office with a locum consultant because there would be “clinical material around the office and possibly on the computer screen.” There were also practical reasons for this, as the locum was working from what had been the Claimant’s office, and it was a small office.

September 2012 to April 2013: the UCLH placement

[56]Initially, it seemed that refresher training would take place at UCLH. Despite some problems getting in touch with Mr Cohen, the Claimant’s supervisor at UCLH, the Claimant accepted in his evidence that Dr Mehdi was doing his best.

[57]The Claimant drafted a programme of return to work, subject to further consideration and discussion between the parties and ultimate agreement with any host Trust.

[58]Unfortunately, after a departmental meeting in April 2013, UCLH decided that it was unable to provide the placement. Within a fortnight, Professor Wetherill wrote to five neighbouring Trusts to ask if they could help. 13 May 2013: the GMC performance assessment

[59]Between 16 February 2013 and 1 March 2013 a GMC performance assessment team did a detailed assessment of the Claimant’s fitness to practise. It had three main elements: a “peer review” consisting of discussions with the Claimant and several of his clinical colleagues, a review of 40 sets of patient records, and “tests of competence”, consisting of a surgical applied knowledge test and a clinical examination. The Claimant’s practice was assessed on a scale of acceptable/ cause for concern/ unacceptable.

[60]Despite having been excluded from all clinical activity for about 2 years by the time of the assessment the Claimant’s performance was assessed as acceptable in the following areas:(i) assessment of patient’s condition;

(ii) providing or arranging investigations;

(iii) providing or arranging treatment;

(iv) other good clinical care; and

(v) relationships with patients (including consent). In the applied knowledge tests the Claimant scored 92.43%, against a standard set score of 67%. The report notes that “in comparative terms 100% of the surgeons in the reference group would have scored below Mr Al-Mishlab.” In the competence tests the Claimant achieved “acceptable” scores in the majority of the 12 stations and fell below the 25th centile in “basic life support, cancelled operation, thrombprophylaxis and erectile dysfunction”.

[61]Two areas were identified as a “cause for concern”. The first was record keeping. The concerns were “mostly” related “to the structure and organisation of the medical records”. The second was working with colleagues. The assessors described “a mixed picture”. A large number of instances of “acceptable” practice were identified in the records, case-based discussions (CBD), and third party interviews. However, there were also some indications of “unacceptable” performance in this area, drawn primarily from third party interviews.

[62]“Reflective practice” was described as unacceptable. This was assessed under the general heading of “maintaining good medical practice”. The assessment was based on the “consistent views” expressed by the Claimant’s colleagues during third party interviews that he did not reflect on his practice and denied making mistakes. The assessors gained a different impression from the Claimant during the course of the assessment and explained their reasoning in support of their conclusion of “unacceptable” thus:

“Our conclusion therefore was that with respect to reflective practice his performance in the past had been unacceptable but by the time of the assessment he appeared to have gained insight and had resolved to change his approach. However, we cannot be certain that his insight would be maintained in practice. We therefore judge his performance in this area to be unacceptable.”

[63]The assessors concluded that he should return to clinical work as a laparoscopic colorectal surgeon, subject initially to supervision. However, the assessors concluded that, based on their discussions with the colorectal surgeons and other staff at Milton Keynes, a return to Milton Keynes was not a realistic option. The Claimant then gave undertakings to the GMC, in which he accepted that he would need to be supervised.

Luton & Dunstable

[64]In June 2013 the Claimant was told by the Trust that Luton & Dunstable Hospital had said it was willing to provide him with a placement. The Claimant had a positive meeting at Luton on 21 June 2013. That offer was later put on hold when a second GMC investigation was announced. It was withdrawn when conditions were imposed on the Claimant’s registration (including the requirement for a chaperone) as a result of allegations based on hearsay made by two nurses in interviews with the GMC. Those allegations were later dismissed by both the GMC and the Trust. Neither needed to interview the Claimant in order to do this.

[65]This news was clearly frustrating to Professor Wetherill, as the Claimant accepted in his evidence. In the light of it, Professor Wetherill then contacted the Claimant’s colleagues in the Trust, to ask them to consider supervising him. He made several such approaches. Their responses were not positive.

Mediation

[66]There were attempts to convene a workplace mediation this year. The Claimant sought to exclude two senior members of the team, Mr O’Hara and Professor McWhinnie, from this. This was not a sensible approach, and it slowed down the arrangements for the mediation. There were negotiations about the format of the mediation. A mediation agreement was signed in September 2014. After making faltering progress, the mediation failed when, in November this year, Mr O’Hara refused to take any further part in it.

Alternatives to exclusion

[67]Throughout, the Trust was given clear and repeated advice that it must manage this case in accordance with Part II of MHPS, and it must fully consider alternatives to exclusion. This advice has come from two sources, NCAS and the Claimant’s representatives. Almost immediately after the decision to exclude the Claimant the Trust received advice from NCAS of the need to consider alternatives to exclusion. That advice was consistently repeated; including the need to consider specific alternatives such as supervised working, or non-clinical work.

[2]The relevant provisions of the contract of employment

[68]I was sent copies of the 2007 and 2009 versions of “Terms and Conditions – Consultants (England) 2003 (“the TCCE”) after the hearing. I say a little more about that below. Both sides agree that Maintaining High Professional Standards in the NHS (“MHPS”) is incorporated in the Claimant’s contract of employment and that the relevant provisions of MHPS have contractual force. These provisions, which deal with exclusions, among other things, were introduced “to combat a perceived suspension culture in which doctors charged with incompetence are too readily suspended pending the outcome of investigations and then remain suspended for long periods, to the detriment of their own wellbeing and professional development and to the disadvantage also of the NHS itself” (per Underhill J, as he then was, in Mezey v South West London and St George’s Mental Health NHS Trust

[2006] EWHC 3473 (QB)

;

[2007] IRLR 237

at paragraph 15).

[69]The section headed “Restriction of practice and exclusion from work” starts by reminding employers of the Restriction of Practice and Exclusion from Work Directions 2003, issued by the Secretary of State for Health. These provide, among other things, that “NHS bodies must ensure that exclusion from work is only used as an interim measure whilst action to resolve a problem is being considered”, and that where a practitioner is excluded it must be for the minimum period of time, which can be up to, but no more than, 4 weeks at a time.

[70]Paragraph 4 provides that where serious concerns are raised about a practitioner, the employer must urgently consider whether it is “necessary” to place temporary restrictions on his or her practice. Paragraph 5 says that exclusion from the workplace is a temporary expedient. It is a precautionary not a disciplinary measure and “should be reserved for only the most exceptional circumstances.” One of the purposes of exclusion is to protect the interests of patients or staff. It is “imperative” that exclusion is not misused or seen as the only course of action which could be taken. The degree of action must depend on the nature and seriousness of the concerns and on the need to protect patients (paragraph 6).

[71]Alternatives to exclusion are listed at paragraph 7. They include supervision, restrictions to some types of clinical duties or restricting duties to administrative, research/audit, teaching and other educational duties. With mutual agreement the latter can include training or “re-skilling”. Where capability is at issue, an action plan should be considered (paragraph 8). The NCAA (now NCAS) can advise.

[72]Paragraph 9 provides that the justification for exclusion must be regularly reviewed and before any further 4-week period of suspension is imposed. The employer is responsible for ensuring that the process is carried out fairly and quickly, kept under review and that the total period is not prolonged. Paragraph 14 deals with immediate exclusion. This may be “necessary” for the purposes identified in paragraph 6 if there is a critical incident when serious allegations have been made. Such an exclusion “will allow a more measured consideration...”. The period of such an exclusion should be used for preliminary analysis, to contact NCAS and convene a case conference. A meeting must be held with the practitioner within 14 days. The manager making the exclusion must explain the decision to exclude in broad terms.

[73]Paragraph 15 provides that 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”. NCAS must be consulted.

[74]If a case investigator has been appointed, he must produce a preliminary report as soon as possible for the case conference. That report is advisory, to enable the case manager to decide on the next steps. It is tolerably clear from this that the person who must take the decision formally to exclude is the case manager. The preliminary report should provide sufficient information to enable decisions to be made on various questions, such as whether the allegation is unfounded, whether there is a concern about the practitioner’s capability and whether the complexity of the case warrants further investigation before advice can be given on “the way forward and what needs to be inquired into” (paragraph 16).

[75]Formal exclusion “must only be used where there is a need to protect the interests of patients and 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” (paragraph 17).

[76]“Full consideration must be given to whether the practitioner could continue or return to work in a limited capacity or in an alternative, possibly non-clinical role pending the determination of the case” (paragraph 18). It is clear from paragraph 19 that exclusion must be “regarded as the only way to deal with the case”.

[77]The practitioner should usually be allowed to return to work (with or without restrictions) as soon as the original reasons for exclusion no longer apply (paragraph 21). A further obligation is imposed by paragraph 23, which provides that if, at any time after an exclusion, investigation reveals that the allegations are without foundation, or further investigation can continue with the practitioner working normally or subject to restrictions, “the case manager must lift the exclusion, inform the SHA and make arrangements for the practitioner to return to work with any appropriate support as soon as possible”.

[78]Paragraph 24 is headed “Exclusion from premises”. It provides that practitioners “should not automatically be barred from premises” when excluded from work. “Case managers should always consider whether a bar from the premises “is absolutely necessary”. Exclusion from the premises will be necessary, for example, if there is a risk that the practitioner will tamper with evidence, or where the practitioner is “a serious danger to patients or staff”. But, “In other circumstances...., there may be no reason to exclude the practitioner from the premises. The practitioner will wish to retain contact with colleagues, take part in clinical audit, and to remain up to date with developments in their field of practice or to undertake research or training”.

[79]A section of MHPS is headed “Keeping in contact and availability for work”. When a practitioner has been excluded, the case manager should “make arrangements to ensure that the practitioner can keep in contact with colleagues on professional developments, and take part in continuing professional development (CPD) and clinical audit activities with the same level of support as other doctors....in their employment.” A mentor should be appointed for this purpose “if a colleague is willing to undertake this role” (paragraph 26).

[80]The next section is headed “Keeping Exclusions Under Review”. It imposes rigorous requirements on a trust board to monitor exclusions generally and each exclusion specifically. Paragraph 35 provides that “Normally there should be a maximum limit of 6 months exclusion, except for those cases involving criminal investigations of the practitioner...The employer and the NCAA should actively review those cases every 6 months.

[81]The next section is headed “Return To Work”. If it is decided to end the exclusion, “...there must be formal arrangements for the return to work of the practitioner” (paragraph 43).

[3]How is MHPS to be interpreted?

[82]Part II of MHPS is a mixture of provisions. It confers powers and imposes duties. It is a mixture of substance and procedure. Some of its language is plainly contractual, and some is much vaguer. Some of the questions to which it gives rise are hard-edged questions of fact, and some are questions of assessment or judgment. It is important not to lose sight of the fact that, while one of its purposes is to combat the “suspension culture”, the power to exclude practitioners which it confers is, in some circumstances, essential to patient safety. To the extent that a balance is ever required to be made between the interests of patients, and those of a practitioner, the former must always take precedence. Moreover, if there is any doubt about where the balance lies, that must be resolved in favour of the safety of patients.

[83]It is also important to bear in mind, in line with the recent cases to which Mr Cooper, for the Trust, referred me, that in an employment procedure such as MHPS, the employer is not engaging in an adjudicative process, but is managing its employees and its business (McMillan v Airedale Foundation Trust

[2014] EWCA Civ 1031

;

[2014] IRLR 803

at paragraphs 51 and 52 per Floyd LJ, citing Christou v Haringey London Borough Council [2013] EWCA Civ;

[2014] QB 131

and Mattu v University Hospitals Coventry and Warwickshire NHS Trust

[2012] EWCA Civ 64

;

[2013] ICR 270

[84]In Mezey Underhill J (as he then was) granted an interim injunction preventing an NHS Trust from implementing a decision totally to suspend the claimant on disciplinary grounds. He described the policy behind MHPS as “that suspension should be restricted to cases where it is strictly necessary, that it should last for as short a period as possible, and that limited or partial suspension should always be considered where possible”, relying in particular on paragraphs 4-7 and 17-18 of Part II of MHPS. In that case there was no breakdown in relationships, and the order made by Underhill J did not require the claimant to be permitted to do clinical duties. Underhill J recognised (judgment, paragraph 28) that the discretion to suspend was a broad discretion that “may require a balancing of a number of different factors”. If “cogent reasons” had been put forward for a blanket suspension, Underhill J would have been “slow to second-guess” them.

[85]In Hussain v Surrey and Sussex Healthcare NHS Trust

[2011] EWHC 1670 (QB)

Andrew Smith J carefully analysed the defendant Trust’s disciplinary procedure (which mirrored MHPS) in order to decide which of the provisions at issue in that case were contractually binding as opposed to merely hortatory. He set out some of the relevant factors at paragraph 168 of his judgment. They are the importance of the provision to the contractual relationship as a whole, how detailed the provision is (the court should not micro-manage the procedure), how certain are the requirements of a provision, whether the provision is set in other provisions which are contractual, or among provisions which are guidance only, and whether, if the term were given contractual effect, it would be unworkable. The language of the provision is also relevant (judgment, paragraph 169). There appeared in this context, however, to be no helpful distinction between the use of the words “should” and “must”.

[86]This analysis led him to conclude that paragraphs 2.6, 2.17 and 2.18 were contractual in effect. Those provisions correspond to paragraphs 6, 17 and 18 of Part II of MHPS. When Dr Hussain was first excluded, as the Judge found, the Trust had concerns about her capability, but had considered that she had acted in good faith. It did not have the serious concerns about her probity which it later formulated against her. Contrary to paragraph 9 of MHPS, the exclusion was not kept under review (judgment, paragraph 83). The Trust would not consider any modification to the exclusion because it was following “standard NHS practice” of not relaxing an exclusion to any extent (judgment, paragraph 85). He could see “no justification” for a decision to restrict the Claimant’s non-clinical work, or to restrict her from doing any clinical work” (judgment, paragraph 89). He rejected the Trust’s evidence that alternatives to exclusion had been discussed, and dismissed, when the decisions to exclude her had been made (judgment, paragraph 90). In any event, he was not persuaded, even after it was alleged that Dr Hussain had been tampering with patient records, that it was necessary or reasonable to exclude her entirely from Trust premises or from having access to colleagues (judgment, paragraph 91). I infer from (for example, paragraph 93 of the judgment) that the Trust’s evidence on some of these questions was insufficient.

[87]I have been referred to various cases about the test which a court should apply when deciding whether or not a discretion conferred by a contract of employment has been exercised lawfully or not. If a contract confers an apparently unfettered discretion, then that discretion must not be exercised capriciously or unreasonably. There is no breach of contract unless the employer’s exercise of discretion was outside the range of reasonable responses. If, by contrast, a contract confers a discretion which is only exercisable if conditions laid down by the contract are met, then the court will decide, as a matter of fact, whether those conditions were met.

[88]I accept the Trust’s submission that the MHPS gives a Trust a discretionary power to exclude a practitioner. That discretion is subject to a number of contractual fetters (it must be necessary, it must be used only in the most exceptional circumstances, alternatives must be considered, various procedural safeguards must be observed, and so on). I also accept the Trust’s submission that the standard of reviewing of the exercise of the discretion is the Wednesbury test.

[89]Further, I accept the submission that in considering the application of the contractual conditions for the exercise of that discretion, I must bear in mind the employment context. It seems to me that many (but not all) of the contractual fetters in MHPS necessarily depend on the exercise of a judgment by the employer to be made 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. Even if, as a matter of analysis, the fulfilment or otherwise of the contractual conditions for the exercise of the discretion to exclude is for the court to decide, as a matter of fact, the practical reality is that I am not in a position, other than by means of a Wednesbury review, to second guess decisions by the Trust about the necessity of exclusion, whether there are alternatives to exclusion or restrictions, and other similar issues. I have limited and superficial knowledge of this workplace, and of the balance of the different factors to which Underhill J referred in Mezey.

[90]It is not clear to me that Andrew Smith J was, in substance, applying a different test to the question whether the Trust breached Dr Hussain’s contract of employment in excluding her and in failing to consider alternatives to exclusion. But if he was, it seems to me that that approach was contrary to the weight of authority, and I do not follow it.

[91]That approach, of course, does not apply to the provisions of MHPS which give rise to hard-edged questions of fact. I can also readily see that if a Trust fails to adduce evidence, or satisfactory evidence, on the evaluative questions which are posed by some of the provisions of MHPS, a court may (as did Andrew Smith J in Hussain) decide that it has not complied with MHPS in excluding a practitioner.

[92]That approach is consistent, in my judgment, with the overall purpose of Part II of MHPS in a case like this. That has two aspects. The first is to enable Trusts to exclude practitioners where they judge that that is necessary for patient safety. The second, which is not likely to have been intended to be inconsistent with the first, is that a practitioner should not be excluded unless a Trust judges that threshold tests are, and continue to be, met, and that exclusion should be subject to procedural safeguards, such as regular reviews. In that context, it would be surprising if the drafters of MHPS had intended that the court should be the primary arbiter of such issues as the need for exclusion, and the availability of alternatives to exclusion.

[93]It also seems to me that I must be careful not to confuse substance with form in this context. The Trust has not always followed MHPS. Dr Mehdi, the case manager, should have made the decision to exclude, but it was in fact made by Dr Lanzon-Miller, the Medical Director. It is doubtful, from his evidence in cross examination, whether Dr Mehdi, who was the case manager for a long time, applied the right test when reviewing the exclusion: he considered whether “there had been a material change in circumstances to warrant a change in the exclusion”. He did not read the RCS report for some time after it was sent to the Trust. It was initially sent to the medical director, and he acted on what he was told about its contents by him, rather than reading it himself. It is also clear from the evidence that no investigations were made about whether there was alternative, non-clinical work for the Claimant to do in the Trust. As Dr Mehdi said, “I made no inquiries. If the Claimant was excluded from seeing patients, I know as a consultant that there is no work for him to do. Professor Wetherill’s evidence was to similar effect. I say more about this issue below.

[94]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 has failed to follow MHPS. Those breaches were not the subject of proceedings at, or shortly after, the time when they occurred. If he had asked to Court to restrain an anticipated breach of one of those procedural provisions, the Claimant might well have been granted relief. And he might well be entitled to an award of damages if he could show that those breaches had caused him loss.

[95]For me, reviewing the history of the exclusion, the real question about those breaches is whether they caused the central loss of which he complains, that is, his exclusion and restriction. For the reasons which I explain below, I do not consider that these breaches did cause his exclusion. My approach has been to ask, not whether the Trust observed MHPS to the letter (it did not always do so), but to ask whether, despite its failures to follow MHPS, the initial exclusion and its continuation were, in substance, a breach of MHPS, because they did not meet the criteria of MHPS.

[96]If that if that is not the right approach, a Trust could be required to reinstate a practitioner, if it has broken what seem to me to be (in the context of this dispute) adjectival provisions of MHPS, but its underlying decisions (to exclude a practitioner and to maintain that exclusion or restrictions on his practice) were within the range of reasonable responses. I do not consider that, in the context of clinical practice, and the necessary focus on the safety of patients, that can be the right approach. I recognise that this cautious approach may lead to a sense of unfairness on the part of practitioners, such as the Claimant, who have been excluded for a very long time, and who know that their employers have, in various respects, failed to follow the procedures in MHPS, the purpose of which is to protect their interests. But the analysis of this case is not the same as the analysis which would apply if this were an application for judicial review of a decision governed by public law. The Claimant, I think, accepts that this is so, as I explain in the next paragraph.

[4]The dispute

[97]There is no challenge to the Trust’s decision to place restrictions on the Claimant’s practice in 2010. There are various respects in which the Trust has failed to comply with the letter of MHPS to the letter. Some of these are admitted. But the Claimant’s challenge is to the substance of the decision to exclude, and to the fact that it has been maintained, in substance, if not in name, from March 2011 until now. For that reason, and for the reasons given above, I have therefore ignored what, for these purposes, I regard as inconsequential breaches of MHPS by the Trust. That is not to say that they are unimportant, or that I condone them. They are not and I do not. That is to say that they have no bearing either, on the essential lawfulness of the exclusion, or, as I shall explain (in case I am wrong about that) on the relief to which the Claimant is entitled. (1). The initial restrictions

[98]The Claimant accepted a number of points in his evidence. All members of a multi-disciplinary team need to be able to work together. A surgeon’s relationship with his colleagues is vital. He agreed that a practitioner must be able to listen. A surgeon must reflect regularly on his practice, and work collaboratively with his colleagues. Multi-disciplinary team meetings are part of that, as many patients have cancer or other illnesses. No surgeon is infallible, and no surgeon works in isolation. Nurses and junior doctors can spot things a surgeon misses, and if there is not an open atmosphere between colleagues, that can harm patient safety. Nurses make an important contribution. Failure to listen is a patient safety issue. The presence of a person in a multi-disciplinary team with whom colleagues cannot be open and collaborative is also a patient safety issue as it affects the functioning of that team.

[99]He was asked in cross examination about the “trigger incident” on 18 June 2010. He agreed that to exteriorise the wrong end of a stoma should be a very rare occurrence. He accepted in his evidence “100%” that he had got this operation wrong. He was less willing to accept that he had ignored the concerns of his registrar; he had, rather, asked him to explain his concern and, because the registrar could give no reason for it, had not acted on it. On reflection, he now realises, he should have explored the concern further. He denied telling Dr Lanzon-Miller that it was not his work at all but that of the registrar. The registrar mobilised the stoma, but the Claimant had closed the ends. He did not prevent the registrar from extracting more intestine to check. If the registrar had asked to do this, he would have done so. He denied blaming the registrar for not expressing his views strongly enough. He said that the RCS had only been willing to listen to one side of the story.

[100]But he did not deal satisfactorily with all Mr Cooper’s questions about why the nurse had by-passed him and gone to Mr O’Hara about patient MP. At first he could not apparently understand why she had done that, in breach of the normal professional courtesies. It seems probable to me that she did so either because she had raised her concerns with him and he had not listened, or, because of previous experiences of his not having listened, she felt no confidence that he would listen on that occasion. As Professor Carlson observed, “... “communication” seems to be less of an issue than “attitude” and “interpersonal skills”....” (report, paragraph S1.20). The Claimant said that this incident was “a clear example of [the nurse] failing to communicate with me”. Later, however, he did accept that the nurse and Mr O’Hara had bypassed him because of a perception that he would not listen, and that that was a reasonable assumption, because he did not listen. He accepted that this episode showed dsyfunction in the team. He also accepted, but very grudgingly, that paragraph 38 of his witness statement, in which he asserted that Mr Wetherill’s initial investigatory report had described him as having “good working relationships with colleagues” was not accurate. He accepted that even if his colleagues’ perception was completely unreasonable, the Trust could not ignore it. He agreed that in the past they had been right to have that perception. They would have to see a change in order to accept it. The question of when and how he was to be reintroduced involved a careful balance of factors. It was a question about which reasonable people might disagree. He would not accept that a placement in an outside NHS trust would be a good starting point.

[101]The Claimant did not initially respond in a concessive way to the Trust’s concerns. At the meeting on 28 June 2010 when restrictions were put on his practice, his response, as he accepted in cross examination, was that there were some people in the Trust, that is, anaesthetic colleagues, who always seemed to be out to look at his complications, but not colleagues’. That had been his view at the time. In his written response to Mr Wetherill’s report he “refuted” the suggestion that he was unwilling to accept that there were complications, and did not accept that he had delayed treating patients. He took this attitude because “there was no evidence before me”.

[102]As I have said, the Claimant does not challenge the decision to put restrictions on his practice on 2 July 2010. The effect of these was to stop him doing major colorectal surgery and on-call duties, but he was allowed to do more minor procedures. He accepted at a meeting on 28 June 2010 that the Trust’s concerns would have to be investigated and supported the involvement of outside colorectal specialists in that investigation. (2). The challenges to the exclusion

[103]The Claimant has four basic arguments.(1) Since the remit of the RCS was only to investigate his major colorectal surgery, and since there had been no problems with the minor procedures he had been carrying out, the Trust should not have excluded him from all surgery in response to the RCS investigation.

(2) The Trust failed to consider alternatives to exclusion.

(3) The Trust should not have maintained the exclusion (or restrictions on his practice) during the period for which they were maintained.

(4) He should now be permitted to return to work at the Trust.

(a) The exclusion from all surgery

[104]Dr Lanzon-Miller was cross examined about his decisions initially and then formally to exclude the Claimant. There were two strands to this; first whether he should have made further inquiries, rather than relying on the RCS report, and second, whether he had considered, and whether there in fact were, alternatives to exclusion. I bear in mind that the RCS assessors were so concerned with what they had found that they hauled Mr Wetherill out of a private clinic in order to communicate their concerns to him.

[105]On the first topic, I accept Dr Lanzon-Miller’s evidence that it would have been foolish of him to “inquire into the inquiry” done by the RCS in order to see whether the Trust should follow the recommendations of the RCS, conveyed initially orally in March 2012, and then, some 4 months later, in its report. It was his duty as Medical Director with responsibility for patient safety to take it into account. He did not need independently to satisfy himself that the advice of the RCS was sound. It is the highest expert body in the country, and its expert advice had been sought because Mr Wetherill did not have the expertise to investigate the concerns about the Claimant’s practice without expert help.

[106]The RCS had known that the Claimant was working subject to restrictions and had been doing less major operations. The RCS did not review his record for less major procedures. But any operation is risky and a surgeon’s technical ability is only one part of being a doctor: a technically able surgeon can be a bad doctor. I accept Dr Lanzon-Miller’s evidence about that.

[107]The Claimant’s suggestion in cross examination that Dr Lanzon-Miller should not have decided to exclude him from all surgery is unrealistic. The Claimant had to accept in cross examination that complications occur in all surgery and that clinical judgment is essential for all surgery. But he could not see that the concerns expressed by the RCS about his major colorectal surgery were concerns which, any reasonable employer would be entitled to conclude, would make him unfit to do any surgery. The concerns are not so much about technical ability (for if they were, he might safely be able to do minor procedures) but about clinical practice. But there were technical concerns as well.

[108]For all these reasons, I reject the submission that the exclusion of the Claimant from all surgery (and not just colorectal surgery) was outside the range of reasonable responses which an NHS Trust might have to the circumstances which faced Dr Lanzon-Miller in March 2011. But if necessary, I would go further. In my judgment, the Trust had no option but to exclude the Claimant from all surgery. (b). Were there alternatives to exclusion?

[109]I have dealt above with the alternative of permitting the Claimant to continue doing more minor procedures. Both Dr Lanzon-Miller and Dr Mehdi were asked about alternatives in cross examination. I am satisfied, although there is nothing in his file note about this, that Dr Lanzon-Miller did consider in March 2011 whether there were alternatives to exclusion and decided that there were none. I also find that, with his knowledge of Milton Keynes Hospital (he was its Medical Director at the time) he was able to form a view about this without detailed investigation. As he explained, teaching, for a consultant, is primarily done on the job. The Claimant could not teach more junior doctors as he would not be in theatre, or doing ward rounds. There were some lectures, but these were in accordance with a timetable which had been set in advance, and the Claimant did not have an academic background. He had co-written one paper and written some case notes (one, as it happens, with Dr Lanzon-Miller). For the consultants at Milton Keynes Hospital, there was little if any administration other than administrative work relating to their patients. This evidence was supported by that of Dr Mehdi, who said, in effect, that he knows, as a consultant, that if he has no patients, he has no administrative work; there are no letters to write, and no reports to review.

[110]It was suggested that the Claimant could have attended meetings, such as M&M meetings, or could have been found work to do in clinical audit work, or “up-dating protocols”. It was suggested to the Claimant in cross examination that his presence in meetings before he had been rehabilitated might in fact be counter-productive. The Claimant agreed generally that his colleagues had to see he had changed in the clinical context, but did not see how this would be a problem if he had participated in meetings before rehabilitation had taken place. I accept the Trust’s evidence that, given his colleagues’ concerns about his attitude (his failure to listen and to accept he had made mistakes) it was open to those dealing with his case to think that his presence at M&M meetings would inhibit the free and frank discussion at such meetings which is so essential to the safety of patients. It would not therefore be feasible for him to attend such meetings as an observer. Mr Cooper further submits (and I accept) that while the Trust’s investigation continued, there was an additional reason why the Trust was reasonable in concluding that the Claimant should not go to such meetings, as Dr Mehdi explained. Once the Claimant knew what his colleagues had said in their interviews to Mr Wetherill and to the RCS, and for so long as there was a possibility that they might be re-interviewed, the situation was sensitive, because it is difficult (and unusual) for any colleague, and especially more junior colleagues, to criticise a consultant.

[111]I also accept the Trust’s evidence that clinical audit work involves the exercise of clinical judgment. It was therefore open to those dealing with his case to conclude that the concerns about that aspect of his practice meant that it was not appropriate for him to do that, either. If it was reasonable of the Trust to decide that the Claimant should do no clinical work, it seems to me to follow that it was necessary for the Trust to ensure that he did not have access to clinical information, such as patients’ notes. If a person is not doing clinical work, there is no reason for him to have access to patients’ notes, and if there is no reason for a person to see patients’ records, there are good reasons (such as patient confidentiality) for ensuring that he does not casually encounter them.

(c) The continuation of the exclusion

[112]The Claimant accepted in cross examination he had commissioned reports which differed from the views of the RCS (from Professor Winslet, dated 7 October 2011). He also accepted that the differences between Professor Winslet and the RCS meant that Mr Wetherill needed further expert help to guide him. In the end, for reasons which were outside Mr Wetherill’s control, this took a long time, and Professor Carlson’s report was not finished until April 2012. Mr Wetherill’s final report was finished in July 2012. He had interviewed the Claimant on 8 and 9 March 2012. I have described Mr Wetherill’s conclusions above, at paragraph 42.

[113]While Dr Mehdi applied the wrong test in considering whether to continue the exclusion at successive reviews, I do not consider that it would have made any difference if he had applied the right test. It was open to a responsible Trust, once these serious questions about the Claimant’s practice had surfaced, to investigate them with expert help, and to involve the RCS. Further, once the Claimant had taken issue with the RCS’s conclusions, it was reasonable to seek further expert help. It was then reasonable of Dr Mehdi to see what the case investigator, Mr Wetherill, made of this material before he could consider lifting or modifying the exclusion. The Claimant suggested that as soon as Dr Mehdi received Mr Wetherill’s final report, he should have lifted the exclusion. I disagree. It was sensible and right for Dr Mehdi to wait until he had received the Claimant’s comments, which were provided on 25 June 2012.

[114]Dr Mehdi’s report was dated 2 August. He recognised that the issues raised by Mr Wetherill could not be dealt with by management action, because the Claimant was the lead colorectal surgeon practising laparoscopic techniques, and so no-one more senior at the Trust could support his practice. He therefore recommended, reasonably in the circumstances, a reference to NCAS for assessment. A period of re-skilling would be needed before this could take place, and that the Trust would seek to facilitate this at another Trust. He also noted that there were wider organisational problems and that they should be addressed by the Medical Director of the Trust separately. This, too, was a reasonable conclusion.

[115]I consider that it was rational for the Trust to try and find a placement for the Claimant in another Trust, given the state of internal relationships revealed, among other things, by the RCS report (and repeated in the GMC report). The Trust went to considerable, and reasonable, efforts to do this, which took time. Two such efforts came relatively close to success. In my judgment the fact that the Trust has continued with these efforts suggests that, far from acting precipitately or unfairly towards the Claimant, it has tried hard to help him, in so far as (in its reasonable view) it is able to do, without jeopardising the stability of its team, and thus, the safety of patients. (d). Should the Claimant now be permitted to return to work at the Trust?

[116]There are two linked aspects of this question. They are the breakdown in relationships in the team, and the need to find a suitable clinical supervisor for the Claimant.

The Claimant’s point of view

(i) Relationships The Claimant’s point of view

[117]The Claimant said in cross examination that he accepted the premise of the undertakings he has given to the GMC, which is that there are deficiencies to be remedied in the areas identified by the GMC in its report. He accepted the findings of the GMC report, he said. He accepted that if he returns to work a suitable consultant would have to be identified to supervise him. He accepted the reasons given by the GMC (and by the Trust) for saying that it was not appropriate for a locum consultant to do that. He accepted that any such consultant would need the confidence of the Trust and ideally should have considerable experience of training, and be approved as a trainer by the local deanery. He agreed that such supervision would require a lot of time and effort and would not work if the person concerned felt, in Mr Cooper’s words, “put upon” or forced to do it. The supervisor would need to be able to work closely with the Claimant, and he also agreed that it would not work if he and his supervisor fell out, as that could be damaging and dangerous for patients.

[118]He was repeatedly asked whether he understood the apparent hostility, and reluctance of his colleagues to work with him again. He said he could not understand it, as they had worked well in the past and his deficiencies in listening to others and in not recognising mistakes had not been drawn to his attention before. He expected them to give him the benefit of the doubt to see if he had changed. He did not accept the GMC findings that his relationship with some of his colleagues had broken down, or that his supervision of junior colleagues had been unacceptable.

[119]In re-examination the Claimant was shown a transcript of Mr O’Hara’s interviews with Professor Wetherill in 2010 and with the GMC in February 2013. There is a difference in tone and content between the two. In October 2010, Mr O’Hara was saying to Professor Wetherill that personally he got on well with the Claimant, and had much respect for him. He went on to say that he had never heard the Claimant admit that he was wrong, and that he was less open to his colleagues’ opinions than others. He made clear that it was not possible to say whether the Claimant had more complications than his colleagues without peer review. When asked at the end of the interview whether there was anything else “aberrant in terms of” the Claimant’s “behaviour towards the unit”, Mr O’Hara said, “We work in different ways, whatever that means”. He also raised specific concerns about two cases. By February 2013, Mr O’Hara was saying that the Claimant had destroyed the department, that he did not want the Claimant to set foot in the hospital again, that if he returned, he and others would leave.

[120]Mr Cooper suggested that the Trust was concerned about the Claimant’s lack of insight into the extent to which relationships had been affected by the Claimant’s attitude, and how difficult it would be to re-build them. The Claimant’s response was that he had harmonious relationships with colleagues despite not listening to their views, which persuaded me that he did still lack insight into the extent of the problem. He also sought to minimise the importance of the fact that some of his close colleagues (whether or not they are a minority) have reservations about his returning to work. He often referred to his colleagues’ “perception” of him, which suggested to me that he was minimising the extent to which the “perception” accorded with reality. I find that the perception did accord with the reality.

[121]I accept that the Claimant has a sincere desire to work on this and to improve relationships by listening to criticism, reflecting on his own practice and admitting mistakes. He did not understand the hostility now because he and his colleagues had worked well together in the past, and he expected his colleagues to give him the benefit of the doubt, to see if he had changed. He mentioned more than once that he had been suspended for a long time and had been taught a lesson by that experience. If there was goodwill, it should be possible to get round any problems. His prolonged suspension meant that he had had no opportunity to show his colleagues that he had changed. It should be possible for there to be a fresh start and for people to put their trust in each other again.

[122]Nonetheless I accept, for the reasons given in detail by Mr Cooper in his closing note, his submissions that(1) the Claimant’s acknowledgement of the deficiencies in his practice has been inconsistent and equivocal, both in the course of the Trust’s investigation, and in his evidence at the hearing; and

(2) the breakdown in relationships between the Claimant and other members of his team had occurred by the time he was excluded and was largely the result of his attitude and behaviour towards them.

Mr Anjum’s point of view

[123]Mr Anjum was called to give evidence for the Claimant. He is a consultant urological surgeon. He has been employed by the Trust for nearly 18 years. He was a forthright and compelling witness. I am satisfied by his evidence that he had a reasonably close working relationship with the Claimant and a closer one than he does with the other colorectal surgeons, because the emphasis in the Claimant’s work on keyhole surgery involved more need to protect the urethra than in the work of the other consultants. He has operated with the Claimant and has also had many interactions with him (as with other colorectal surgeons) when it has been necessary to discuss patients who present with abdominal pain of unknown origin.

[124]I accept his evidence that, as far as he can tell, the Claimant was generally well liked at the hospital. I also accept his evidence that some members of staff are afraid to discuss the Claimant’s case. They are willing to supervise and to support him, but are afraid to speak out. He has no reason to think that this is anything other than “fear of the unknown”, but as he put it, “Adults are trembling”, and they feel insecure and shaky. His evidence was that there was little information about the reasons for the Claimant’s suspension. There had been a suggestion that it was high rates of complication, but the rates had not apparently gone down after his suspension, and then it was said he had been suspended for other reasons. He had then heard that the Claimant had been suspended because he had shown photographs on his ’phone to a nurse. As a senior clinician, he had not been told anything.

[125]He felt frustrated. The Trust was in financial difficulties. He had not had a working ’phone in his office for 8 months, but much money was being spent on this case, on paying the Claimant and on paying a locum. He said that his heart was breaking for the Trust, as this could be speeded up and resolved. A minority of staff did have issues with the Claimant, but relationships could be built with work and with love. People had a duty to patch things up. He was talking about highly sophisticated, well educated people. The Claimant has accepted the GMC restrictions, and it should be possible to build bridges. He felt that Miss Singh would work with the Claimant but did not want, effectively, to rock the boat by going against her colleagues.

[126]This was about rehabilitation. Rehabilitation was possible in other walks of life. The Claimant is a highly trained surgeon. He had fallen from grace, but his deficiencies are correctable and where there is a will there is a way. The Claimant’s abilities could be used to run out-patient clinics and colonoscopy. He gave an example of another colleague who had been rehabilitated and had become a very productive and useful member of the team. A process had been set up for his rehabilitation a while ago but it had not happened. Three plans had fallen through, one over payment arrangements. It wasn’t right to exclude him and waste money, all in the name of keeping the peace. “Life is too short”, he said. His view was that if the Claimant complied with his restrictions, he could see no reason why it would not work. The main gaps which caused Mr Anjum concern were between the Claimant and Richard O’Hara and between the Claimant and Mr McWhinnie. The Claimant needed their love and affection. I have given weight to this evidence.

Mr O’Hara’s point of view

[127]But I have not given as much weight to Mr Anjum’s evidence as I have given to the evidence of Mr O’Hara. I accept Mr O’Hara’s evidence that Mr Anjum does not work in the same department, and knows less about what goes on in Mr O’Hara’s department than he does about his own, which has its own issues, including a recent review. As Mr Anjum accepted in his evidence, he knew very little about the reasons for the Claimant’s suspension. In my judgment Mr O’Hara is in a better position to judge the temper of his own department than is Mr Anjum.

[128]Mr O’Hara would be the Claimant’s senior colleague if he returned to work. Mr O’Hara had first raised concerns about the Claimant’s practice in a letter dated 4 June 2010 to Mr McWhinnie. He thought then that the Claimant was increasingly isolated, and was failing to engage with his colleagues.

[129]Mr O’Hara seems initially to have got on well with the Claimant. He made efforts to support him, by keeping in contact with him over Christmas 2012. Mr O’Hara was visibly nervous when giving his evidence. He explained that he felt nervous. At times he was defensive, particularly when asked about his decision not to take part in the mediation. In my judgment Mr O’Hara has, understandably, become, and knows that he has become, upset by the deterioration in his relationship with the Claimant. It seems to me that this knowledge has led him at times to try, as much as he can, to be objective, and generous in his assessments of the Claimant, but it is also clear to me that, at times, he has not been able to keep the necessary distance from his feelings.

[130]Mr Sheldon, for the Claimant, submitted that there is a marked and surprising contrast between Mr O’Hara’s evidence to Mr Wetherill in October 2010, and his evidence to the GMC assessors in February 2013. The views he expressed then were extreme. It is difficult to explain, Mr Sheldon submitted, because nothing happened between the two events and the Claimant was excluded throughout the period between them.

[131]Mr O’Hara was asked about his evidence about the Claimant to Mr Wetherill. He said that it had been too sugar-coated. He should have stood up to be counted. What he meant by this, it seems to me, is that at the stage when he was interviewed by Mr Wetherill, he had already begun to realise that all was not well, but that, out of friendship to the Claimant, he had pulled his punches in his interview with Mr Wetherill. In my judgment there were already significant problems in their professional relationship when Mr O’Hara was interviewed by Mr Wetherill, but Mr O’Hara did not state their full extent then because of a sense of loyalty to the Claimant. Once the Claimant was no longer on site, he seems to have felt able to express his views much more forthrightly. This goes some way to explaining the change in content and tone between what he said in October 2010 and his evidence to the GMC some two years later.

[132]Mr O’Hara was in court for the Claimant’s evidence. He was asked if he was reassured by that evidence that the Claimant had full insight into his deficiencies, that he could take on board criticism, and had changed. He said, “unfortunately” that he was not. Both Mr Anjum and Dr Lanzon-Miller had given evidence, which I accept, that they felt that if the Claimant could show that he had learnt lessons, and if those at the Trust approached things in a mature way, there could be a successful resolution. Mr O’Hara was asked about this. His reply was that nothing he had heard in court showed that the Claimant had changed.

The Claimant’s complaint to the Nursing and Midwifery Council

[133]The Claimant was asked about a complaint he made to the Nursing and Midwifery Council (“the NMC”) about two senior nurses, Teresa Williams and Vanessa Cook, who had made complaints about him which led to the second GMC investigation. On 27 March 2014, the GMC decided, without interviewing the Claimant, not to take the complaints any further. The Trust made a similar decision, 13 months after the complaints were made. The Claimant made the complaints on 31 March and 1 April 2014, respectively. He described Ms Williams’s allegations as “prejudiced, inaccurate and malicious...motivated by personal and racial prejudice”. He said he “had reasons to believe that she was encouraged to do so by two surgeons who made a concerted effort to remove me from my position”. The Claimant agreed in cross examination that the two surgeons are Mr O’Hara and Mr McWhinnie. His reason for saying that the efforts were concerted was that there were similarities between the words of the various witness statements. He alleged a breach of the obligation to be “trustworthy open and honest, acting with integrity and upholding the reputation of the nursing profession”. He complained in similar terms against Ms Cook.

[134]I have no doubt that the Claimant genuinely believes the allegations he made against these two nurses. In cross examination he said that he stood by his suggestion that they had lied deliberately. I have no doubt, also, that the GMC and the Trust were right not to take any action in relation to the new allegations as they were unspecific, and to a large extent, based on hearsay. I do not doubt the Claimant’s explanations about the facts underlying the allegations in so far as they relate to his actions. I do not, however, consider that it was wise of him to make these complaints. The Claimant was asked twice whether he realised what distress a complaint to a regulatory body would cause. He replied that he did; in his case it had led to the Luton and Dunstable offer falling through. He was asked whether these allegations were as serious as it gets, and, if proved, could lead to the nurses being struck off. His reply was, “They made serious allegations about me”. His attempt to explain why he said that the complaints were racist was unpersuasive. His explanation for making the complaints was that he wanted an independent body to look into this. When asked whether he knew that the complaints would be sent to the nurses he said that it was the only way he could give the nurses “feedback” about their behaviour.

[135]It was suggested that he was not “letting bygones be bygones”. His response was that people needed to be objective. He was asked why when proposals for mediation had recently been made, he had dropped the bomb of a referral to the NMC, if he was interested in mending fences. His reply was that they needed to know that they had made unfounded allegations and that they should be objective in the future. “They have got their feedback, then I will forgive and forget”.

[136]Although the Claimant denied it, I find that, in part, these complaints were motivated by an ill-judged desire to get his own back on these nurses. Whether or not he thought there was anything in their allegations (and I have found, on the evidence I have heard, that he was right to think that there was nothing in them) he should not, if he really wanted to rebuild relationships with the whole team, have made these complaints in the intemperate terms in which he did, or have implicated two consultant colleagues in the complaints. The fact that he thought that it was appropriate to do so, and in the terms in which he did so, casts serious doubt on his judgment and insight.

[137]I base the conclusion about the Claimant’s judgment and insight in part on the evidence of Mr O’Hara about the effect of this complaint, which I describe in paragraphs 144 and 145, below.

The Claimant’s return to the consultants’ corridor in March 2013

[138]In March 2013, the Claimant returned briefly to the consultants’ corridor. Professor Wetherill accepted that the Trust had not handled this return well. The Claimant’s colleagues were either not told about it at all, or not told enough. There is a dispute about how the Claimant behaved. The Claimant’s evidence was that the doors to all offices, except two, were open, and that he had given everyone to whom he spoke an accurate account of the status quo.

[139]In his witness statement Mr O’Hara said that the Claimant had spent a lot of time talking to lots of people and giving the impression that he felt he had been cleared of all concerns, and that everything was resolved. Mr O’Hara’s evidence in cross examination was that he had been told that the Claimant might return and they had met accidentally. He and the Claimant had said “Hello” to each other. Mr O’Hara described this as “The perfect opportunity to build bridges”. The Claimant had then asked him how he was, and he had replied, “Surviving”. The Claimant had then said, “It’s survival of the fittest” and had walked off. This account was not put to the Claimant, so he had no opportunity to comment on it.

[140]This meeting seems to have led Mr O’Hara to send a letter on 18 March 2013 to Mr Pete Thomas. He said he had bumped into the Claimant on the corridor and since then had been “extremely distressed” about the situation. He continued, “I basically believe this is intimidation of witnesses and should not be allowed to occur”. On the same day his secretary also wrote to Mr Thomas, to say that as she had “been privy” to letters and correspondence about the Claimant’s suspension she felt “very uncomfortable and intimidated” by his presence on the corridor. She had asked him if the matter was resolved and he had said that he had access to all non-clinical areas. She went on to say that while the matter was not resolved and the Claimant “was going up and down the corridor telling everyone that it was, she did not feel she could do her job properly, “on top of feeling very uncomfortable and intimidated”.

[141]In a letter dated 13 March 2013, Mr McWhinnie (the Divisional Director of Surgery, and a consultant) told Mr Thomas that there were several problems with the Claimant going to his office (as he was “perfectly entitled” to do). The Claimant’s attitude was not what he expected; he had been “chatting to almost everybody in the corridor and saying categorically that he has been completely exonerated”. He was “appalled to see” that all the corridor doors were closed in response to the Claimant’s presence, which was inhibiting “open and transparent networking”. His presence was “uncontrollable”. Several secretaries had told him that they felt uncomfortable and intimidated by the Claimant’s presence. On the same day, Mr McWhinnie’s secretary wrote to Mr Thomas. She, too, found his presence “quite intimidating” to the extent that she would check before opening to door to go for a comfort break. These letters, and the letters of 18 March, are in a similar format and all seem to have been composed using the same typeface.

[142]Apart from Mr O’Hara, none of the letter writers gave evidence. In his witness statement, Mr O’Hara explained that he found the Claimant’s behaviour intimidating as he had been quite brave in speaking out about the Claimant, and the Claimant was now telling everyone he had been exonerated, which, Mr O’Hara felt, was calculated to intimidate him and others who had spoken out, by suggesting that their concerns had been rejected. Apart from this, I have been given no explanation for the sense of intimidation which all the authors of these letters claim to have felt. It is difficult for me see how, by itself, his meeting with the Claimant was quite as upsetting as Mr O’Hara, claimed, in the light of his evidence about it, which he was keen to give. I accept that, perhaps unintentionally, the Claimant gave people the impression that he thought that he had been exonerated. I doubt whether he was behaving in a way which would justify the description “intimidating” to any person of normal firmness. I am also left with the impression that the letters of 13 and 18 March were a co-ordinated effort to persuade the Trust that the Claimant should not be allowed free access to his office by exaggerating the effects of his presence in the consultants’ corridor. This effort succeeded. It does not seem that the Trust investigated these claims. Nonetheless, I also accept that, whether or not their reaction to the Claimant’s return was rational, or justified, Mr O’Hara and others did find his presence disconcerting and upsetting.

The failed mediation

[143]Mr O’Hara said that when he made his witness statement in August 2014 he did have an open mind about mediation, and about whether the Claimant could develop humility. He could not remember when he first made clear that he had changed his mind, and did not think he had said so before his 6 November 2014 email. But lots of issues in the department had made him reflect on the mediation process. He wanted the Claimant to accept some responsibility and to engage with the department. He wanted to produce a fair response.

[144]When he became CSU lead he had to think about the broader team. He could not believe to this day that, if the Claimant wanted to be part of the team, and engage in mediation, he could report the two most important people in the team to the NMC and question their professional integrity. He did not believe that the Claimant could work with the team after all that had happened this year. He was not made aware of the complaints to the NMC for a very long time. He probably found out in August and wanted time to reflect on this. He did not dive into decisions.

[145]He did not believe that a person could come back to the department if he reported nurses to the NMC. That took a total lack of insight, and suggested that the Claimant did not want to come back. Mr O’Hara had nurses threatening to leave, crying and saying they would take early retirement. He had persuaded them to stay. If the Claimant really wanted to come back, he would not have said in his evidence in court that Mr O’Hara had fabricated evidence: which was not true. He did not accept the suggestion that he had used the NMC complaint as an excuse, and had no intention of engaging properly in the Claimant’s return to work. He said that it was not about him and the Claimant. He did not have a veto about the Claimant’s return to work. The department was a lot bigger than he was.

The significance of Mr O’Hara’s evidence

[146]Mr O’Hara’s evidence is crucial to the question whether the Claimant can return to work with the Trust, and thus to the question whether, under MHPS, the Claimant is entitled to insist on returning. On the evidence I have heard, I do not consider that Mr O’Hara’s reaction (or that of the other March 2013 letter writers) to the Claimant’s return to his office in March 2013 was rational or justified. But I have decided that this does not matter. I do accept that his current feelings, and his reporting of the feelings of his team, are facts. I also accept that they are based on his, and the team’s, experiences of working with the Claimant and on their reactions to the NMC complaint; both of which are rational and justified. It also seems to me that the Trust is entitled to regard them as facts. They are facts which mean that the Claimant’s continued exclusion from the colorectal team at Milton Keynes Hospital is necessary and, a fortiori, a reasonable employer could conclude that his exclusion is necessary. (ii). Supervision

[147]The other crucial issue about any return of the Claimant to work at the Trust is the issue of close supervision, which is required by the undertakings which the Claimant gave to the GMC, and by the draft action plan. I accept the evidence of Professor Wetherill that first, trust and, second, experience are essential conditions for the effective and safe supervision of a more junior doctor by a consultant. A fortiori, they are essential if a consultant is to be supervised by a fellow consultant. These factors have a bearing on the question of who could, or would, supervise the Claimant if he were to return to Milton Keynes Hospital.

[148]First, a supervising consultant always “carries the can” for his supervisee; in other words, he accepts responsibility for his supervisee’s mistakes. In order to be willing to do this, he has to have a relationship of complete trust with the supervisee. Professor Wetherill referred to a case where because the supervising consultant did not trust the junior doctor he was supervising, the junior doctor had to be moved. The other side of that coin, it seems to me, is that the supervising consultant needs to be sure that his supervisee will accept his guidance. Second, there will be occasions in theatre when the supervising consultant will have to get his supervisee out of trouble. It is essential for patient safety that the supervising consultant has enough experience to know how to spot and correct mistakes quickly, and the coolness to do so without flapping, and without endangering the patient. He must be able to get out of difficulties calmly, safely and appropriately.

[149]Professor Wetherill did, and does, have a strong objection to a locum consultant supervising a fellow consultant. As I have mentioned, that approach is shared by the GMC. His view is that in order to supervise a more junior doctor, a consultant should have 5 years’ experience in a substantive post, have experience of teaching and be a registered trainer. He did not believe that Mr Canna had the skills to supervise the Claimant. The RCS and the GMC had both said that it was not appropriate for a locum consultant to supervise the Claimant. Mr Canna had been asked if he was willing to supervise the Claimant not by the Trust, but by the Claimant or his representatives. He was not familiar with Mr Canna’s work, but had spoken to the theatre manager about this. She had said that he is competent doing what he is asked to do, but becomes anxious if he is asked to do work which is outside his comfort zone. If the Claimant’s remediation succeeded, Mr Canna, who was looking for a substantive consultant post, would be redundant. It was difficult to tell how long remediation might take. Some aspects might take 6 months, some, longer.

[150]I accept Professor Wetherill’s evidence about that, and I therefore accept that it was open to the Trust reasonably to conclude that Mr Canna would not be an appropriate supervisor for the Claimant.

[151]Moreover, the “remediation” of the Claimant would require the “buy-in” of the other consultants and clinicians at Milton Keynes Hospital. There might be times when the Claimant was required to do emergency work when the supervisor was not on call, or his training might need to focus on an area which was outside the expertise of the supervisor. When a trainee works in CSU, he has to interact with a range of different consultants. There was a lack of trust which had to be repaired. Professor Wetherill did not underestimate how difficult that could be.

[152]Mr Canna is the only doctor working at Milton Keynes Hospital who has said he is willing to supervise the Claimant. All the other consultants whose area of expertise might make them an appropriate supervisor for the Claimant have been approached, more than once. They have all expressed different reservations about supervising the Claimant. I asked Professor Wetherill whether the Trust could insist that an unwilling consultant supervise the Claimant. He said that it would be very difficult if not impossible. That is reinforced by the relevant terms of the TCEE. If the breach of trust had not been repaired, any supervising consultant might feel that for him or her to supervise the Claimant would compromise the safety of patients. I accept that evidence, also.

[153]It follows, in my judgment, that it was open to the Trust to take the view there was no suitable consultant at Milton Keynes Hospital who could supervise the Claimant in accordance with his GMC undertakings. (3). Conclusion on the dispute

[154]The Trust has not breached the terms of MHPS either in initially excluding the Claimant, or in maintaining that exclusion, latterly described as a restriction, to date. The Claimant’s own representative suggested in September 2011, in a meeting to discuss his exclusion, that it would be preferable for the Claimant to return to supervised practice at another Trust, although he recognised that it would be premature to develop this before the internal investigation had finished. It is submitted, and I accept, that this supports the Trust’s view that before it understood the nature of the problems, the Claimant could not return to clinical practice, and that any return should at any rate be started elsewhere. Given the history, and given the current position, which, as I find, is that(a) the relationship between the Claimant and key members of the multi-disciplinary team has broken down, and

(b) there is no suitable and willing consultant at Milton Keynes Hospital to supervise his work, his exclusion or the restriction was, and is, necessary, and the Trust was reasonably entitled, under the terms of MHPS, to see it as necessary.

[5]Remedy

[155]Even if I had decided that the Claimant’s initial, and/or continued, exclusion or restriction had been a breach of MHPS, I would not have ordered the Trust to take him back to work. I would make a declaration only, and (as the parties agreed that I do not have enough information to conduct one immediately) ordered an assessment of damages.

[156]I hope that I do not underestimate the impact of this long exclusion, quite apart from its significant cost to the taxpayer. The exclusion has had a great human cost, which has been borne by the Claimant. Its effects include isolation from colleagues, loss of a highly congenial occupation, humiliation, loss of skills, waste of expertise and training, frustration, and a strong sense of injustice. I must therefore explain my decision that I would, nonetheless, have refused to grant an injunction.

[157]It is clear from the authorities cited by Mr Cooper that the court will not specifically enforce the performance of obligations when the underlying human relationships have broken down, or where an order is likely to require the court to manage such a relationship in the future. I have found that the underlying relationships have broken down. It would not be reasonable or sensible for the court to order the Trust to require Mr O’Hara, or the two senior stoma nurses, to work with the Claimant, or to force Miss Singh (or someone else) to supervise him. There are many further issues which would be generated by an injunction and which, far from being solved, and would need further working out. They include the details of the Claimant’s “remediation”, and of his supervision. If they could not be agreed, the parties would have to return to court. The court is simply not equipped to manage the Claimant’s future employment in that way.

Conclusion

[158]I dismiss this claim.