Gregg v North West Anglia NHS Foundation Trust [2018] EWHC 390 (QB)

[2018] EWHC 390 (QB)Case No HQ17X04116
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/02/2018
Before
JUSTINE THORNTON QCsitting as a Deputy Judge of the High Court
Between
ANDREW GREGGClaimantNORTH WEST ANGLIA NHS FOUNDATION TRUSTDefendant
Jeremy Hyam QC (instructed by RadcliffesLeBrasseur) for ClaimantMark Sutton QC and Nadia Motraghi (instructed by Mills & Reeve LLP) for DefendantHearing Hearing dates: 15, 16 and 17 January 2018
Judgment ApprovedJustine Thornton QC:Introduction
[1]In this application, the Claimant, Dr Gregg, a consultant anaesthetist, seeks an injunction restraining the Defendant, the North West Anglia Foundation Trust (“the Trust) from:a. Proceeding with its disciplinary processes in relation to the deaths of two patients under Dr Gregg’s care, pending a decision by the Crown Prosecution Service (CPS) whether to press criminal charges in relation to the deaths;b. Ceasing to pay Dr Gregg’s salary, on the basis of an order by the Interim Orders Panel of the Medical Practitioner’s Tribunal Service, suspending his registration to practice.[2]The Trust counterclaims, seeking a declaration from the Court that it is entitled, by the terms and conditions which supplement the contract of employment, to convene a hearing to consider whether to terminate Dr Gregg’s employment on grounds of his ‘failure to hold or maintain a requisite qualification registration or licence to practise’.[3]It is common ground between the parties that the allegations against Dr Gregg, which centre on whether he inappropriately hastened the death of patients in his care, are serious and that he could face imprisonment in the event of criminal conviction. Alongside investigations by the Trust and the police, Dr Gregg’s conduct is subject to scrutiny by the General Medical Council. The multiplicity of investigations against Dr Gregg presents difficulties for the Trust as well as Dr Gregg. The Trust has a complex and sensitive balancing act between patient safety; public expenditure; pastoral care for Dr Gregg’s colleagues caught up in events, as well as pastoral care for Dr Gregg himself.[4]Dr Gregg strenuously denies the allegations against him and wishes to call expert evidence to demonstrate that his conduct was clinically appropriate. None of the investigations has yet considered the defence Dr Gregg proposes to advance.[5]The Court is not concerned with the underlying allegations against Dr Gregg, but with the content of Dr Gregg’s contract of employment; the surrounding contractual documents and their interpretation in the light of legal authorities and the underlying statutory scheme.

The Facts

[6]Dr Gregg is a Consultant Anaesthetist employed by the Trust. He commenced employment for the Trust’s predecessor body, the Peterborough and Stamford Hospitals NHS Foundation Trust on 29 September 2003. He is employed pursuant to the terms of a consultant’s contract, the most recent version of which is dated 15 January 2007.[7]Prior to the events currently under scrutiny, there were no previous concerns expressed about Dr Gregg’s clinical performance. However, since 2016, serious concerns have been raised regarding his treatment of patients under his care and specifically that multiple deaths may have been hastened as a result of his conduct.[8]The first patient to give rise to concern was Patient A. Patient A was a 41 year old man who had acute myeloid leukaemia. He was admitted to intensive care over the Christmas period in 2015. On 4 January 2016, Dr Gregg took over as the relevant consultant. The doses of sedative and analgesia given to Patient A were increased and he died 2 hours later. A serious incident report was raised. The Trust’s Medical Director, Dr Rege, who gave evidence before the Court, considered the incident sufficiently serious to commission a formal investigation. The General Medical Council and the National Clinical Assessment Service were informed.[9]The Trust’s investigation was deputed to consider whether there was evidence that the decision to withdraw treatment from Patient A was made solely by Dr Gregg rather than in conjunction with the specialist team looking after the patient (as should have been the case); whether the doses of sedation and analgesia used were excessive and whether the death of Patient A was inappropriately hastened.[10]During the investigation, Dr Gregg was removed from duties in the critical care unit but continued to work as a consultant anaesthetist elsewhere in the hospital.[11]On 13th April 2016, the investigation was completed and concluded that there was evidence to support a case to answer that Dr Gregg made the decision to withdraw treatment for Patient A on his own rather than in conjunction with the specialist team looking after the patient; that the sedation and analgesia used were excessive and the patient’s death was inappropriately hastened.[12]Accordingly the Trust decided to formally exclude Dr Gregg and notify the police on the basis his conduct crossed the criminal threshold. The police commenced investigations, as did the General Medical Council.[13]In May 2016, the police requested the Trust not to proceed further with its disciplinary process whilst the police were investigating. Accordingly, the Trust put its disciplinary process on hold.[14]In July 2016, the police decided that expert evidence was necessary to complete its investigation. In or around early November 2016, the police completed their investigation and decided to treat the death of Patient A as homicide.[15]On 13 December 2016, Dr Gregg attended an interview with the police under caution where he provided his explanation for the treatment of Patient A in the form of a signed statement. The case was passed to the Criminal Prosecution Service (CPS).[16]At this stage the Trust’s disciplinary proceedings remained on hold pending a decision from the CPS. It appears that the CPS was of the view, at this stage, that the case did not cross the necessary threshold to charge Dr Gregg.[17]Around this time the Trust became aware of similar concerns in relation to Patient B. In 2013, Patient B suffered a serious heart attack and came under the care of Dr Gregg. He was sedated and died within 4.5 hours of being passed into Dr Gregg’s care. The Trust opened an investigation into whether the dose regime for Patient B was consistent with standard practice or whether it was unethical. An initial fact finding assessment concluded that Dr Gregg’s conduct was not standard or acceptable practice.[18]At a meeting between the Trust and the police on 7 February 2017, the police advised that the Trust could continue with its disciplinary process in relation to Patienta. A. However the police did not want the Trust to take any internal action against Dr Gregg in relation to Patient B at this time as their investigations were at an earlier stage. Accordingly, the Trust postponed its investigation into Patientb. B. Matters in relation to Patient A also remained on hold.[19]On 31 March 2017, Dr Gregg was arrested in relation to Patient B.[20]On 8 May 2017, Dr Gregg attended an interview under caution with the police and provided a signed statement in relation to Patient B. Bail conditions were imposed, including a requirement not to go to Peterborough City Hospital unless as an emergency patient or as directed by a clinician. In addition, Dr Gregg was not to contact witnesses, although this restriction was later removed[21]On 12 May 2017, the Interim Orders Tribunal of the Medical Practitioners Tribunal Service, the independent adjudicative arm of the GMC met to consider whether to make an order under section 41A(1) of the Medical Act 1983 suspending Dr Gregg or imposing conditions on his registration to practise. Dr Gregg did not attend and written submissions were provided on his behalf by his solicitors. The Tribunal had obtained its own expert report from a consultant in anaesthesia and intensive care which concluded that Dr Gregg’s conduct “fell seriously below the standard expected of a reasonable competent consultant anaesthetist”.[22]The Tribunal suspended Dr Gregg’s registration to practice, on the basis an interim order was necessary for the protection of members of the public and in the public interest. The Tribunal’s letter to Dr Gregg spelt out the effect of the[23]Following the concerns identified about Patient B, the Trust had reviewed Dr Gregg’s care of patients over an eight year period and identified seventeen additional cases of concern. Five of these cases were taken forward by the police for discussions with the CPS.[24]On 15 June 2017, the police informed Dr Rege that they had no objections if the cases of Patients A and B were addressed as part of the Trust’s internal proceedings. “There are no objections from the police perspective for you to advance your disciplinary proceedings, in particular I do appreciate your concerns regarding the public costs of an extended period of suspension. Dr Gregg is aware of the criminal investigation into the deaths of [A] and [B] and has been interviewed by us. It would therefore cause me no concerns for both these matters to form part of your proceedings (letter from Major Crime Unit to Dr Rege dated 15 June 2017).[25]The Trust was therefore minded to proceed with its disciplinary processes. However, by letter dated 14 July 2017, the Claimant’s solicitors requested that the Trust place the investigation into Patient B’s death on hold, pointing to paragraph 12 of Part III of the framework document, Maintaining High Professional Standards in the NHS (MHPS): “Dr Gregg would be put in a most invidious and potentially highly prejudicial position by virtue of being asked to comment as requested in respect of his actions and management in respect of Patient B whilst there is the potential for him to be subjected to criminal proceedings arising out of the same clinical issues. I would be bound to give Dr Gregg advice as to how he would therefore need to respond to any such interview process and I cannot see that is in the interests of either the Trust or its employee for such a situation to arise irrespective of what is represented by the terms of the MHPS…[26]At this juncture, Dr Rege passed matters over to the Trust solicitors, Mills & Reeve.[27]On 26 July 2017, Dr Gregg’s bail was extended to 7 November 2017, on condition he did not go to Peterborough City Hospital, unless as an emergency patient or directed by a clinician, or by prior arrangement with Dr Rege.[28]On 2 August 2017, the police notified the Trust that they were investigating a further five cases involving Dr Gregg.[29]In August 2017, the GMC informed Dr Gregg that it had decided to include sixteen new cases in its investigation.[30]On 18 August 2017, the Trust’s solicitors, Mills & Reeve responded to Radcliffes’ letter of 14 July 2017 requesting postponement of the disciplinary proceedings. The relevant passages are as follows:
“It is a fundamental principle of fairness and proper employment practice generally that serious allegations of potential misconduct should be investigated thoroughly, impartially and without undue delay, in order to verify the facts. MHPS guidance supports these standards and underscores the particular need for such concerns, when they become apparent, to be inquired into quickly. In a clinical setting, this emphasis upon proper expedition is essential in order to meet the key priorities of ensuring patient safety and public protection. The interests of the doctor whose conduct is being inquired into would also be adversely affected if investigations of this kind were subject to unwarranted delay. In short, it is in the interests of all parties for a full and thorough investigation to be undertaken and completed as expeditiously as possible. Consistent with the MPHS, it is recognised that the Trust should maintain confidentiality at all times. No press notice should be issued, nor should the name of the practitioner be released, in regard to any investigation or hearing into disciplinary matters. The employer should only confirm that an investigation or disciplinary hearing is underway. The Trust proposes to adhere fully to this guidance in its investigation into the concerns surrounding your client.”
[31]On 25 August 2017, Mills & Reeve wrote again to Radcliffes, stating that the Trust proposed to lift its own exclusion of Dr Gregg under Part II MHPS as it was no longer necessary in light of the interim suspension imposed by the Medical Practitioner Tribunal Service, dated 12 May 2017. Further, the Trust would be suspending payment of Dr Gregg’s salary with effect from 1 September 2017. Dr Gregg’s salary has not been paid with effect from this date, save that the Trust has made payments to Dr Gregg, with effect from 1 October 2017, having received an undertaking from him that he will repay the money if his breach of contract claim in respect of pay fails.[32]On 28 September 2017, a pre-action letter was sent to the Trust on behalf of Dr Gregg. The Trust responded by way of letter dated 16 October 2017.[33]On 3 November 2017 the MPTS Interim Orders Tribunal Review hearing confirmed Dr Gregg’s ongoing interim suspension. Dr Gregg was legally represented at the hearing. The letter informing Dr Gregg stated as follows:
“In accordance with Section 41A of the Medical Act 1983..the Tribunal has determined that it is necessary to maintain the existing interim order of suspension.. In reaching its decision the tribunal has borne in mind the concerns raised about your conduct and practice are very serious. It has also taken into account that the GMC is now investigating 16 further cases of concern and that five of these are being investigated by the police. The tribunal was mindful that its purpose is to assess risk, both to patients and to public confidence in the medical profession and that it is not for it to find facts…”
[34]On 10 November 2017, the Claimant issued his claim in these proceedings. On 24 November 2017 the Trust served a defence and counterclaim. On 4 December 2017 the Claimant served a reply and defence to counterclaim.[35]Dr Gregg’s bail date is set for review on 27th February 2018. The police have indicated they hope to provide an indication as to the next steps of the investigation by that date. A single decision is likely to be made regarding all the cases before the police. The contractual framework The Claimant’s contract of employment with the Trust

The contractual framework

[36]The relevant contract of employment is a consultant’s contract, entered into between Dr Gregg and the Peterborough and Stamford Hospitals NHS Foundation Trust. Dr Gregg’s job title is Consultant in Anaesthetics. Relevant clauses are as follows:[37]Clause 10 :
“Registration Requirements” “It is a condition of your employment that you are, and remain, a fully registered practitioner and are included on the Specialist Register held by the General Medical Council (GMC) and continue to hold a licence to practice.”
[38]Clause 12: Deductions from Pay “We will not make deductions from or variations to your salary other than those required by law without your express written consent.”[39]Clause 17 : Disciplinary Matters “Wherever possible any issues relating to conduct, competence and behaviour should be identified and resolved without recourse to formal procedures. However should we consider that your conduct or behaviour may be in breach of Trust Policies or that your professional competence has been called into question, we will resolve the matter through our disciplinary or capability procedures, subject to the appeal arrangements set out in those procedures”[40]Clause 32: Termination of Employment “Provisions governing termination of employment are set out in Schedule 19 of the Terms and Conditions”.[41]Clause 33: Entire Terms “This contract and the associated Terms and Conditions contain the entire terms and conditions of your employment with us, such that all previous agreements, practices and understandings between us (if any) are superseded and of no effect. Where any external term is incorporated by reference such incorporation is only to the extent so stated and not further or otherwise.”

Terms and Conditions – Consultants (England 2003)

[42]Schedule 19 of the nationally agreed terms and conditions of NHS consultant contracts, is incorporated into the contract and provides as follows: Termination of Employment Period of Notice 1. Where termination of employment is necessary, an employing organisation will give a consultant three months notice, in writing … Grounds for termination of employment 4. A consultant’s contract may be terminated for the following reasons:• Conduct• Capability• Redundancy• Failure to hold or maintain a requisite qualification, registration or licence to practice

Disciplinary policy

[43]The policy’s stated purpose is “to deal quickly, fairly, consistently and constructively with breaches in conduct” (Section 2). Its scope includes the following:
“3.2 …“The Trust will also follow the guidance contained within “Maintaining High Professional Standards in the Modern NHS’ for the initial handling of concerns about doctors/dentists in the NHS and the agreed Disciplinary Procedures for Medical Staff.”
[44]The responsibilities of the Chairs and Panels of any disciplinary hearings include ensuringthat a fair process is followed during the hearing (Section 5.1). Similarly the disciplinary panel will provide guidance and support to the employee during the hearing to ensure the employee is given every opportunity to put forward their case (section 15).[45]The Section on Suspension provides as follows (section 10): “The Manager will aim to inform the employee of the following• that suspension will be without detriment to normal full pay entitlement in accordance with any planned working arrangement”.[46]The policy opens with a list of key points which list the rights an employee, against whom an allegation is made, will normally be expected to enjoy. The rights include the ability for the employee to state his case and to question witnesses during a disciplinary hearing.

Maintaining High Professional Standards in the NHS (MHPS)

[47]As referred to in Clause 3.2 of the Disciplinary policy (see above) the MHPS constitutes a framework for the management of misconduct, incapability and poor performance among doctors and dentists in the NHS. It is divided into five parts: I (action when a concern arises) II (restriction of practice and exclusion), III (conduct hearings and disciplinary matters), IV (procedures for dealing with issues of capability) and V (handling concerns about a practitioner’s health). Two paragraphs of particular relevance are paragraph 25 in Part II and paragraph 12 in Part III. The former provides as follows: Keeping in contact and availability for work 25. An exclusion under this framework should usually be on full pay, the practitioner must remain available for work with their employer during their normal contracted hours. The practitioner must inform the case manager of any other organisation(s) with whom they undertake either voluntary or paid work and seek their case manager’s consent to continuing to undertake such work or to take annual leave or study leave. …In exceptional circumstances the case manager may decide that payment is not justified because the practitioner is no longer available for work (e.g. abroad without agreement).[48]Paragraph 12 of Part III provides:
“Action when investigations identify possible criminal acts Where an employer’s investigation establishes a suspected criminal action in the UK or abroad, this must be reported to the police. The trust investigation should only proceed in respect of those aspects of the case which are not directly related to the police investigation underway. The employer must consult the police to establish whether an investigation into any other matters would impede their investigation. In cases of fraud, the Counter Fraud & Security Management Service must be contacted.”
[49]The MHPS was introduced in two phases. In December 2003, the Department of Health issued Health Service Circular 2003/012:
“High Professional standards in the Modern NHS; a framework for the initial handling of concerns about doctors and dentists in the NHS”
. The framework comprised two parts. Part I dealt with the general approach to be taken when a complaint or concern was raised. It focused mainly on the procedures to be followed to investigate the complaint or concern. It advised employers to avoid formal proceedings where possible but recognised that, in some cases, formal action might be necessary. Part II dealt with the procedures to be followed if it was thought necessary to exclude a practitioner from work pending an investigation or subsequent proceedings. Pursuant to the Circular: “NHS Trusts and Primary Care Trust are required to notify Strategic Health Authorities (SHA’s) of the action they have taken to comply with the framework by 1 April 2004”.[50]After the publication of the document in December 2003, the Department of Health continued negotiations with the British Medical Association with a view to reaching agreement on a number of issues in relation to the guidance which the Department intended to promulgate in what became the MHPS.[51]Following the conclusion of negotiations, the MHPS was promulgated. Parts I and II were taken directly from the earlier framework document. Parts III, IV and V were new. Part III dealt with proceedings for misconduct. Its main provision was that proceedings for misconduct against doctors and dentists (practitioners) must be dealt with under the procedures which the employer used for its other staff, when charged with similar matters.[52]In 2005, Directions on Disciplinary Procedures issued under the National Health Service Act 1977 and the National Health Service and Community Care Act 1990 required all “NHS bodies” to comply with the MHPS (Parts I – V). However the definition of ‘NHS bodies’ in the Direction did not include NHS Foundation Trusts. The introduction to the MHPS spelt out the implications for Foundation Trusts: The Directions on Disciplinary Procedures 2005 require all NHS bodies in England to implement the framework within their local procedures by 1 June 2005. It has also been agreed with Monitor that the framework should be issued to NHS Foundation Trusts as advice.

The statutory context

[53]Part V of the Medical Act 1983 concerns fitness to practise.[54]Section 47 is headed “Appointments not to be held except by fully registered medical practitioners who hold licences to practise”. It provides as follows:(1) [Subject to subsection (2) below, only a person who is fully registered and who holds a licence to practise may hold an appointment as physician, surgeon or other medical officer] ... (a) ... (b) in any hospital,(2) ...(3) None of the suspension events mentioned in subsection (4) below shall terminate any appointment such as is mentioned in subsection (1) above, but the person suspended shall not perform the duties of such an appointment during the suspension.(4) The suspension events are ... (c) an interim suspension order by an [Interim Orders Tribunal] or a [Medical Practitioners Tribunal] under section 41Aabove (or such an order as extended under that section).[55]Where an Interim Orders Panel is satisfied that it is necessary for the protection of the public, or is otherwise in the public interest, or is in the interests of a fully registered person for the registration of that person to be subject to interim suspension or to be made subject to conditions, the Panel may make an order (a) That his registration in the register shall be suspended (that is to say shall not have effect) during such period not exceeding 18 months as may be specified in the order (an ‘interim suspension order’) (Section 41A).[56]A doctor with an interim suspension order shall be treated as not being registered in the register and his licence to practise shall be withdrawn with effect from the date when the order has effect (Section 41(A)(11) and 41C). Overview of submissions Dr Gregg

Overview of submissions

[57]Adjournment of disciplinary proceedings: Dr Gregg’s case narrowed during the hearing. Dr Gregg seeks postponement of the Trust’s disciplinary proceedings, pending a decision by the CPS whether to press criminal charges, rather than a longer period, pending completion of any criminal trial. He does so, on the basis of his own concerns and on legal advice, that participation in the Trust’s processes may prejudice his defence in the criminal proceedings. He does not therefore intend to participate. His concerns in this regard are heightened by his understanding that the CPS have decided that there is insufficient evidence to press charges in relation to Patient A. The Trust’s refusal to adjourn breaches paragraph 12 of Part III of the MHPS which provides that in circumstances where investigations have identified possible criminal acts, the Trust should only proceed in relation to those aspects of the case not directly related to the police investigation.[58]On behalf of Dr Gregg, Mr Hyam submitted that paragraph 12 is directly incorporated into Dr Gregg’s contract of employment by virtue of clause 17 of his contract and section 3.2 of the Trust’s disciplinary policy. It would be an absurd construction of section 3.2 for the Trust to treat Parts I and II of the MHPS as contractually binding but not Part III, when the document as a whole deals comprehensively with the disciplinary process.[59]In the alternative, the protection provided by paragraph 12 was to be implied into Dr Gregg’s contract via an implied term of trust and confidence, or an implied duty to act fairly, or by virtue of the requirement on the Trust to exercise discretion reasonably and lawfully. The case of Lakshmi v Mid Cheshire Hospitals NHS Trust [2008] EWHC 878 (QB) is analogous. There, the Court held the Hospital Trust was in breach of the implied term of trust and confidence for not agreeing to the postponement of disciplinary proceedings in relation to a doctor facing criminal charges. The Trust had been told that a decision by the CPS whether to prosecute would be made in the ‘near future’ but decided to proceed given concerns about ongoing delay. Mr Hyam suggested it would only be a few weeks until the police decision whether to pass the case to the CPS and a further five weeks or so for a decision by the CPS whether or not to charge Dr Gregg.[60]Cessation of pay: There was no contractual provision entitling the Trust to cease paying Dr Gregg’s salary during his suspension. The GMC’s interim suspension order was, in the language of the common law, an unavoidable impediment, which did not displace Dr Gregg’s entitlement to suspension on full pay. The Employment Tribunal in Paterson v Heart of England NHS Trust (1308845/2013) had constructed the concept of involuntary impediment too narrowly. The approach of the Tribunal in Kent County Council v Knowles (UKEAT/0547/11/MA) was to be preferred.[61]Termination on alternative grounds: By seeking to dismiss Dr Gregg for his failure to be registered, which arose from the same facts as the disciplinary proceedings the Trust was effectively side stepping a disciplinary process it had contractually committed to. The parties could not have intended for Schedule 19 to allow an employer to terminate a contract on the basis of an interim order for suspension. Even if that was wrong and there was a power it should be exercised fairly and to move to terminate on the facts here would be in breach of the implied term of trust and confidence.[62]Court’s discretion to grant injunctive relief: In the circumstances, the Trust’s course of action gave rise to real prejudice to Dr Gregg, which warranted intervention by the Court.

The Trust’s case

[63]Adjournment of disciplinary proceedings: On behalf of the Trust, Mr Sutton submitted that Part III of the MHPS (and thus paragraph 12) was not incorporated within Dr Gregg’s contract. The reasons for this were historical and explained in Dr Randall’s evidence In any event, the focus of paragraph 12 was on orderly coordination of investigations between the Trust and the police, not employee protection. Whilst the Trust was prepared to accept that some workplace procedures could gain contractual effect via the trust and confidence term, paragraph 12 permitted the Trust to exercise discretion, which it had done so rationally and lawfully. Moreover, the Court was entitled to probe the precise concerns held by Dr Gregg, which were not compelling.[64]Cessation of pay: the interim suspension order imposed on Dr Gregg meant he was clearly unavailable for work. The decisions of Burns v Santander [2011] IRLR 639 and Paterson v Heart of England NHS Trust were powerfully persuasive authority. Imprisonment on remand in Burns rendered the employee unavailable for work. The case of Paterson, in which the surgeon’s interim suspension meant he was unavailable for work concerned the same statutory regime, the Medical Act and interim suspension orders.[65]Termination on alternative grounds: termination of employment on grounds of failure to hold the requisite registration is a contractually permissible basis for termination, distinct from Dr Gregg’s ‘conduct’ which is the subject of disciplinary proceedings. In any event, there is clear authority to the effect that dismissal for ‘some other substantial reason’ provided a contractually legitimate basis for termination even where the cause of the breakdown was associated with colleagues’ concerns about a practitioner’s capability (Kerslake v North West London Hospitals Trust [2012] EWHC 1999 (QB).[66]Court’s discretion: Judicial guidance on the factors to be weighed in the balance in deciding whether injunctive relief is appropriate in the context of ongoing disciplinary proceedings indicate that the thresholds for intervention are high. It is not appropriate for the Court to micromanage disciplinary proceedings Chhabra v West London Mental Health NHS Trust,[2014] ICR 194 and Rv BBC ex p Lavelle [1983] ICR 99.

The evidence

[67]Dr Gregg and Dr Rege, the Trust’s Medical Director, gave oral evidence. The written evidence of Dr Randall, a formal medical director of the Trust, was not disputed. Dr Gregg[68]Much of Dr Gregg’s oral evidence was taken up with an exploration of his concerns about the risk of prejudice to him in the criminal proceedings by virtue of participating in the Trust’s disciplinary processes. Dr Gregg explained that he wants to challenge some of the facts underlying the events in question and wishes to call expert evidence to make the case that his conduct was clinically appropriate. He wishes to call his own witnesses. The witnesses for both the police investigation and the Trust’s disciplinary proceedings will be the same people. Dr Gregg is concerned that the witnesses will have a ‘dry run’ in the disciplinary proceedings and then ‘improve’ their performance at any criminal trial. Dr Gregg explained that he will not be comfortable answering questions put to him at any hearing. He has been given legal advice not to do so and he intends to follow the advice. If he deploys his expert evidence, his answers and expert evidence could be given to the police, prior to a decision by the CPS to charge. The police and CPS would therefore have his expert evidence, which would not normally be available to them until after any decision to charge. His concerns about participating in the disciplinary process have been increased by his discovery during the course of disclosure in these proceedings that the CPS has decided there is insufficient evidence to proceed with the case of Patient A. Moreover in any disciplinary hearing he would like to deploy an argument that the CPS has not found sufficient evidence to prosecute, if this comes to pass, and for the Trust to take that into account in its decision making.[69]I found Dr Gregg to be a reasonable witness. He was prepared to acknowledge the procedural protections available to him under the Trust’s disciplinary procedures, including his right not to answer questions, but he was clearly concerned to have the best possible opportunity to present his defence in both the disciplinary and criminal proceedings.

Dr Rege

[70]In her position as the Trust’s director, Dr Rege explained her decision making. In February 2017, the police had consented to the Trust proceeding with a disciplinary hearing in relation to Patient A. Nonetheless, she considered it appropriate to deal with Patients A and B together given the similarity of issues raised. Once the police consented to the Trust proceeding in relation to Patient B, in April 2017, she wished to proceed.[71]In deciding to proceed, despite Dr Gregg’s objections she took into account: the impacts of delay on clinical practice; on Dr Gregg’s colleagues; the continuing expenditure on Dr Gregg’s salary and the costs of locum cover.[72]Dr Rege explained the various procedural protections available to Dr Gregg during the disciplinary proceedings, including the right not to give evidence or answer questions. Any decision by the CPS to prosecute or not will not be material to the Trust’s decision making because the Trust’s focus will be on whether Dr Gregg continues to enjoy the trust and confidence of the Trust. The Trust and police have a close collaborative relationship. Dr Rege did not wish to take any action that would impede the police investigation and had therefore sought police consent before deciding to proceed with the investigations. In answer to a question from the Court at the end of her evidence, Dr Rege explained that the Trust was not intending to pass any information generated by the disciplinary process to the police.[73]As Trust Director, Dr Rege has a difficult and sensitive balancing act given the seriousness of the allegations against Dr Gregg and the multiple investigations into his conduct. In her decision making, she is required to navigate through the conflicting demands of patient safety; public expenditure; clinical practice; pastoral care of colleagues caught up in events as well as pastoral care of Dr Gregg himself. I am of the view that she has sought to discharge her responsibilities with considerable care and compassion.

Dr Randall’s evidence

[74]Dr Randall was the former medical director of the Trust, between October 2005 to August 2015. He was in post during the development of the MPHS. Dr Randall provided unchallenged written evidence on local attempts to incorporate Parts III – V of the MHPS into local procedures, as follows:
“At the time I was appointed as the Trust’s Medical Director the Trust had not taken any steps to reflect the guidance in MHPS in its local procedures. I was not concerned by this because the Trust had gained the status of an NHS Foundation Trust with effect from 1 April 2004 and was thus was not required to have done so. MHPS was regarded by the Trust as guidance. This said, I wanted to explore whether a specific local Trust procedure reflecting the principles in MHPS could be agreed with the Trust’s Local Negotiating Committee the body which represents the Trust’s medical practitioners in discussions with the Trust around terms and conditions.”
In this respect, at various times during my tenure as the Trust’s Medical Director, attempts were made to engage the LNC and representatives from the British Medical Association in discussions around agreeing a local MHPS policy for the Trust. Ultimately, these discussions never progressed to the point of agreement, for a number of different reasons over those years. In these circumstances, and in contrast with the nationally produced model template agreement, the contracts of employment which the trust issued to its Consultants, deliberately made no reference to MHPS. The Trust’s position was that, as an NHS Foundation Trust, it was not required, formally, to incorporate MHPS into local procedures or local contracts and that it would not do so unless and until a formal agreement had been reached in this respect. Until such an agreement was reached, the Trust’s position was, therefore, that it would treat MHPS as guidance or advice, not as contractually binding, and that was how I treated MHPS throughout my tenure as the Trust’s Medical Director.” Discussion Applicable legal principles[75]By the end of the hearing, the legal principles set out below were not in dispute.[76]The approach to be adopted by the Court to interpretation of the terms of Dr Gregg’s contract: “When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to “what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean” to quote Lord Hoffman in Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 11010 para 14. And it does so by focussing on the meaning of the relevant words…, in their documentary, factual and commercial context. That meaning has to be assessed in the light of(i) the natural and ordinary meaning of the clause,(ii) any other relevant provisions of the lease,(iii) the overall purpose of the clause and the lease,(iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and(v) commercial common sense, but(vi) disregarding subjective evidence of any party's intentions. (Arnold v Britain [2015] AC 1619 Lord Neuberger at [1627])[77]The ‘background knowledge available to the parties’ in this context means ‘absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man’ (Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, Lord Hoffman at [912]).[78]It is an implied term in all contracts of employment that an employer will not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee (Malik v BCCI [1998] AC 20). The conduct in question is assessed objectively in that it does not require an assessment of the intention of the parties.[79]Discretionary decisions taken in an employment context must be exercised in a way that is rational and not capricious. In this context, the Court is not the primary decision maker and is not second guessing the decisions under scrutiny. Its power of intervention is more restrictive – the Court may only intervene where the exercise of discretion offends the principles of Wednesbury unreasonableness:29. If it is part of a rational decision-making process to exclude extraneous considerations, it is in my view also part of a rational decision-making process to take into account those considerations which are obviously relevant to the decision in question. It is of the essence of “ Wednesbury reasonableness” (or “ GCHQ rationality”) review to consider the rationality of the decision-making process rather than to concentrate on the outcome.30. It is clear, however, that unless the court can imply a term that the outcome be objectively reasonable—for example, a reasonable price or a reasonable term—the court will only imply a term that the decision-making process be lawful and rational in the public law sense, that the decision is made rationally (as well as in good faith) and consistently with its contractual purpose. For my part, I would include both limbs of the Wednesbury formulation in the rationality test. (Lady Hale in Braganza v BP Shipping[2015] 1 WLR 1661 at [460].[80]Entitlement to pay is governed by the express or implied terms of the contract of employment and, in default, by the common law principle that an employee who establishes that he is ready and willing to work is entitled to pay (Miles –v- Wakefield Metropolitan District Council [1987] ICR 368).[81]The grant of an injunction is a discretionary remedy. Each case will turn on its own facts but Mr Sutton drew the Court’s attention to guidance in the caselaw as to the approach the Court should adopt to the facts. Mr Hyam did not dispute the applicability of the relevant caselaw and, accordingly, I propose to take matters as follows:a. The bar to the Court intervening is high (R v BBC ex p Lavelle [1983] ICR 99) Woolf J. (as he then was) said that while the court must have jurisdiction to intervene to prevent a serious injustice occurring, “it will only do so in very clear cases in which the applicant can show that there is a real danger and not merely a notional danger that there would be a miscarriage of justice in the criminal proceedings if the court did not intervene.” (p116D-F);b. It is not the Court’s role to micro-manage the course of disciplinary proceedings. The Court should not intervene to remedy minor irregularities but material breaches (Lord Hodge in Chhabra v West London Mental Health NHS Trust, [2014] ICR 194 SC);c. I should take account of the potential for the internal disciplinary process to have a corrective effect (Makhdum v Norfolk and Suffolk NHS Foundation Trust, [2012] EWHC 4015 (QB) Beatson J. (as he then was) reflected this consideration at paragraph 52. See alsoHendy v Ministry of Justice, [2014] EWHC 2535 (Ch) Mann J at paragraph 49) andAl-Mishlab v Milton Keynes Hospital NHS Foundation Trust, [2015] EWHC 3096 Green J (considering an interim injunction but the analysis is nonetheless applicable in the context of ongoing disciplinary proceedings);d. I should consider whether substantial fairness can be observed (See observation of Underhill LJ in McMillan v Airedale NHS Foundation Trust[2015] I.C.R. 747 at 763).[82]On behalf of Dr Gregg, Mr Hyam contended for an additional implied term to act fairly, as separate from the implied term of trust and confidence. It is not however clear to me that any such freestanding term is necessary, in that it would add any additional protection beyond that already available to Dr Gregg. In Johnson v Unisys Ltd (HL) [2003] 1 AC 516 Lord Steyn characterised the trust and confidence term as “an employer’s obligation of fair dealing” [536]. In Eastwood v Magnox Electric plc [2005] 1 AC 503 Lord Nicholls observed that “The trust and implied confidence term means in short that an employer must treat his employees fairly” [523]. In Chakrabarty v. Ipswich NHS Trust [2014] EWHC 2735 (QB), the Court addressed the point directly and was not prepared to recognise a freestanding term: “114 Whilst Mr Edis also contends for a freestanding, discrete implied term of fairness, I am not persuaded that a general obligation to act fairly is properly to be implied into a contract of employment. Rather where the authorities contemplate questions of fairness, they do so in the context of the implied term of trust and confidence, or on a narrower basis by reference to an implied term that disciplinary processes will be conducted fairly, without unjustified delay” (Simler J) Application of the legal principles to the facts The case against

Dr Gregg

[83]The allegations against Dr Gregg, which centre on whether he inappropriately hastened the death of patients in his care, are serious. If convicted of offences in relation to the events in question, Dr Gregg could face imprisonment. Alongside investigations by the Trust and the police, Dr Gregg’s conduct is subject to scrutiny by the General Medical Council.[84]However, none of the investigations have considered the defence that Dr Gregg proposes to advance.[85]Dr Gregg strenuously denies the allegations against him. He disputes some of the underlying facts and he wishes to call his own expert evidence to demonstrate that his conduct was clinically appropriate. He wishes to question the Trust’s witnesses.[86]As matters currently stand the Trust’s investigations into Patients A and B are at different stages. In the case of Patient A, Dr Gregg has given a factual summary of his account of events to both the Police and the Trust. The Trust has concluded its investigation and produced an internal report which concludes that there is a case to answer in relation to Dr Gregg’s hastening the patient’s death.[87]In the case of Patient B, Dr Gregg has not given a statement to the Trust. Dr Gregg has not been provided with the Trust’s witness evidence in relation to Patient B. The Trust has not yet produced an internal report.[88]The Interim Orders Panel of the Medical Practitioner’s Tribunal Service (an arm of the General Medical Council) obtained its own expert report for the interim suspension hearing from a consultant in anaesthesia and intensive care which concluded that Dr Gregg’s conduct “fell seriously below the standard expected of a reasonably competent consultant anaesthetist”. However, the Tribunal is not a fact finding body and its decision making is based on interim risk to patients and to public confidence in the medical profession, pending the completion of its investigations.[89]It appears that, as at early 2017, the CPS was of the view that there was insufficient evidence to press charges in relation to Patient A.

The Trust’s course of action

[90]In April 2016, following the issue of its internal report concluding there was a case to answer against Dr Gregg in relation to the death of Patient A, the Trust suspended Dr Gregg from practice, on full pay, pursuant to its disciplinary procedures.[91]In August 2017, the Trust lifted its own suspension of Dr Gregg on the basis that it was no longer necessary because Dr Gregg had been suspended by the GMC. The Trust stopped paying Dr Gregg’s salary.[92]The Trust proposes, with police consent, to proceed with a disciplinary hearing in relation to Dr Gregg’s treatment of Patient A and to continue its investigation into the case of Patient B.[93]Alternatively, the Trust proposes to proceed to a hearing to decide whether to terminate Dr Gregg’s contract, on three months notice, on grounds of his failure to be registered to practise.

The contractual position

[94]As I understand, the following contractual analysis is not in dispute between the parties.[95]The Trust is contractually committed to resolving disciplinary matters through its disciplinary processes (clause 17 of the contract and paragraph 3.2 of the Disciplinary policy). It has contracted with Dr Gregg not to make deductions from his salary without his express written consent, except as required by law (Clause 12 of the contract).[96]The effect of the implied term of trust and confidence is that the Trust must act fairly in its dealings with Dr Gregg. The Trust must exercise any discretion under the contract lawfully and reasonably.[97]The purpose of the Trust’s disciplinary policy is to deal with breaches in conduct quickly, fairly, consistently and constructively. The aim is to ensure that a fair process is followed during the hearing and the employee is given every opportunity to put forward their case (sections 5.1 and 15 of the disciplinary policy). The policy envisages that suspension from practice will be without detriment to pay in accordance with any planned working arrangement (section 10).[98]The Trust has committed to following the guidance in Part II of the MHPS which provides that exclusion is usually on full pay but that in exceptional circumstances pay may not be justified if the practitioner is no longer available for work. The specific example given is where a doctor is abroad without agreement (Clause 3.2 of the disciplinary policy and paragraph 25 of Part II MHPS). Breach of contract Proceeding with the disciplinary process before a decision to charge by the CPS

Breach of contract

[99]Mr Hyam relies on paragraph 12 of Part III of the MHPS, which, he says, prohibits the Trust from proceeding with its disciplinary processes pending a charging decision by the CPS, and is expressly incorporated into Dr Gregg’s contract of employment.[100]I am not persuaded that paragraph 12 of Part III of the MPHS is expressly incorporated into Dr Gregg’s contract of employment.[101]Clause 17 of Dr Gregg’s contract (Disciplinary Matters) providesthat the Trust will resolve disciplinary matters “through our disciplinary or capability procedures”. There is no reference to the MHPS. In contrast, the same clause in the model contract for consultants, a nationally negotiated template, does refer to the MHPS “the matter will be resolved through our disciplinary ... procedures (which will be consistent with the Maintaining High Professional Standards in the Modern NHS framework)”[102]The Trust’s disciplinary policy provides that:
“3.2 …“The Trust will also follow the guidance contained within “Maintaining High Professional Standards in the Modern NHS’ for the initial handling of concerns about doctors/dentists in the NHS and the agreed Disciplinary Procedures for Medical Staff.”
[103]The significance of the reference to ‘initial’ handling of concerns makes sense in the historical context, explained by Dr Randall. It is, in my judgment, a reference to Parts I and II of the MHPS. As the introduction to the MHPS itself explains, Parts I and II were introduced in December 2003 via a Health Service Circular, the title of which is “Maintaining High Professional Standards in the Modern NHS A framework for the initial handling of concerns about doctors and dentists in the NHS” (underlining is the Court’s emphasis). By the time Part III was introduced in 2005, the Trust had become a Foundation Trust so the 2005 Direction on Disciplinary Procedures which required NHS Trust bodies to implement Parts III - V of the framework did not apply to the Trust. Instead, as set out in the introduction to the framework: “It has also been agreed with Monitor that the framework should be issued to NHS Foundation Trusts as advice”.[104]I reject Mr Hyam’s submission that Dr Randall’s evidence should be excluded on the basis it falls into the third of five principles of contractual interpretation laid down by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, namely the principle that “The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent.”. I accept that Lord Hoffmann acknowledged the uncertain boundaries to the third principle (at [913]). However in my judgment Dr Randall’s evidence provides evidence of relevant background knowledge available to the parties, which can be taken into account in construing a written contract, and in particular the reference to ‘initial’ in paragraph 3.2 of the Trust’s disciplinary policy.[105]However, this is not the end of the matter. It is common ground that the implied term of trust and confidence requires the Trust to act fairly in its dealings with Dr Gregg and to exercise its discretion under the contract reasonably and rationally.[106]In my judgment, the Trust has failed to engage with Dr Gregg’s concerns about participating in the disciplinary processes or the fact of the legal advice he has been given, not to participate, pending a decision by the CPS.[107]Dr Gregg’s advisers set out the position by letter dated 14 July 2017: “Dr Gregg would be put in a most invidious and potentially highly prejudicial position by virtue of being asked to comment as requested in respect of his actions and management in respect of Patient B whilst there is the potential for him to be subjected to criminal proceedings arising out of the same clinical issues. I would be bound to give Dr Gregg advice as to how he would therefore need to respond to any such interview process and I cannot see that is in the interests of either the Trust or its employee for such a situation to arise irrespective of what is represented by the terms of the MHPS…[108]On 18 August 2017, the Trust’s solicitors, responded as follows:
“It is a fundamental principle of fairness and proper employment practice generally that serious allegations of potential misconduct should be investigated thoroughly, impartially and without undue delay, in order to verify the facts. MPHS guidance supports these standards and underscores the particular need for such concerns, when they become apparent, to be inquired into quickly. In a clinical setting, this emphasis upon proper expedition is essential in order to meet the key priorities of ensuring patient safety and public protection. The interests of the doctor whose conduct is being inquired would also be adversely affected if investigations of this kind were subject to unwarranted delay. In short, it is in the interests of all parties for a full and thorough investigation to be undertaken and completed as expeditiously as possible. Consistent with the MHPS, it is recognised that the Trust should maintain confidentiality at all times. No press notice should be issued, nor should the name of the practitioner be released, in regard to any investigation or hearing into disciplinary matters. The employer should only confirm that an investigation or disciplinary hearing is underway. The Trust proposes to adhere fully to this guidance in its investigation into the concerns surrounding your client.”
[109]The letter sets out the Trust’s position as to the importance of expedition, but does not respond to Dr Gregg’s concerns. The letter simply suggests, in general terms, that expedition is also in the interests of an accused doctor, which Dr Gregg’s advisors have made clear is not their view of Dr Gregg’s interests. The letter concludes with reassurance that it will not release information to the public but Dr Gregg is concerned about the release of information to the police. In my view, the response does not engage with the nature of Dr Gregg’s concerns.[110]The following exchange in cross examination of Dr Rege was instructive and demonstrated a similar failure to engage with Dr Gregg’s specific concerns: Question: Why was it in the interests of Dr Gregg to proceed with a process to which his solicitors were taking the most strong objection? Dr Rege: It was in Dr Gregg’s interests to participate in the hearing to exonerate himself and clear his name Question You have seen his solicitor’s letter. Notwithstanding the concerns expressed about the criminal proceedings you think he should go ahead with the disciplinary process and deploy all his evidence? Dr Rege: Correct Question: That’s your view? Dr Rege: Yes Question: You say that he has given an answer to the police on the facts already so he can come and tell the Trust about it. What about if he wanted to deploy witness evidence – you say come and tell us about it? Dr Rege Yes he can Question: You can’t see how that would get in the way of the criminal proceedings where he could face imprisonment? Dr Rege: He can deploy his experts and use the opportunity to clear his name.[111]In Lakshmi v Mid Cheshire Hospitals NHS Trust [2008] IRLR 956 a Hospital Trust refused to adjourn disciplinary proceedings for a month pending a decision by the CPS whether to press criminal charges against the doctor in question. Acting on legal advice, the doctor declined to answer questions at the disciplinary hearing. The Court found that the Trust did not have good reasons for declining to postpone the disciplinary hearing 18 I have considered all of the reasons advanced for declining to postpone the hearing. I do not consider that, whether taken individually or together, they were good reasons. Dr L was not asking for an indefinite adjournment. She was, as was the Trust, relying on legal advice. Although that legal advice might have been (as I have found) over-cautious, the fact is that it places a doctor in an intolerable position to second-guess the advice offered by lawyers. The Trust had no way of knowing whether matters material to the outcome would be forthcoming if she was allowed to give her explanation “unfettered”. There would be no risk to patient safety if there had been an adjournment for 2 weeks. Whilst the stress on the doctors themselves would continue that was more than counter-balanced by the relief of knowing that an account could be given without fear of the consequences in the criminal case. Moreover, a delay might have given the Trust the opportunity to consider the reasons for the CPS taking no further action, if that was what they had chosen to do. I consider that there was no good reason why the hearing could not have been delayed for a month”[112]Similarly, in the present case, Dr Gregg is not asking for an indefinite adjournment. He seeks an adjournment until a decision by the CPS on charges. On information currently available, the police have indicated they hope to be in a position to give an indication as to the next stages of the investigation by the end of February 2018.[113]Mr Sutton relied on the Court of Appeal’s approval of the relevant approach to current criminal and employment proceedings in the case of Harris v Courage (Eastern) Ltd [1982] ICR 530 (Court of Appeal), which concerned an unfair dismissal claim: Mr

Justice Slynn, at page 6H of his Judgment, said this:

“It does not seem to the majority of this Tribunal that there is a hard and fast rule that, once a man has been charged, an employer cannot dismiss him for an alleged theft if the employee is advised to say nothing until the trial in the criminal proceedings. There may be cases where fairness requires that the employer should wait. In the Judgment of the majority members of this Tribunal, all these circumstances have to be looked at. It is essential that the employer should afford the employee the opportunity of giving his explanation and he should be made to realise that the employer is contemplating dismissal on the basis of the matters which are explained to the employee. If the employee chooses not to give a statement at that stage, it seems to the majority that the reasonable employer is entitled to consider whether the material which he has is strong enough to justify his dismissal without waiting. If there are doubts, then no doubt it would be fair to wait. On the other hand, if the evidence produced is, in the absence of an explanation, sufficiently indicative of guilt, then the employer may be entitled to act”
I entirely agree with that summary of the position. (Waller LJ at [532])[114]Mr Sutton also referred the Court to a decision by the Employment Appeal Tribunal in Harris (Ipswich) Ltd v Harrison [1978] ICR 1256, in which Philips J held that We do not accept this criticism of Carr v. Alexander Russell Ltd, which seems to us to be in accordance with the general law as it has been applied in England and Wales and in Scotland, and as it is now approved in the Court of Appeal and possibly in the Court of Session. However, upon one point in the judgment in that case we take a somewhat different view. In that case, both in the industrial tribunal and in the Court of Session, it is suggested to be improper after an employee has been arrested and charged with a criminal offence alleged to have been committed in the course of his employment, for the employer to seek to question him when the matter of dismissal is under consideration. While we can see that there are practical difficulties, and that care is necessary to do nothing to prejudice the subsequent trial, we do not think that there is anything in the law of England and Wales to prevent an employer in such circumstances before dismissing an employee from discussing the matter with the employee or his representative; indeed, it seems to us that it is proper to do so. What needs to be discussed is not so much the alleged offence as the action which the employer is proposing to take [1259][115]Mr Sutton submitted that in light of these authorities the Trust is entitled to decide to proceed as it proposes. The Trust has sought to engage with Dr Gregg and to encourage him to participate but ultimately it is a matter for Dr Gregg whether or not he engages with the process. Similarly, Mr Sutton submitted that the Court should closely scrutinise any claim to prejudice raised by Dr Gregg.[116]I accept that the Court should examine the nature of the alleged prejudice, as part of its inquiry into whether Dr Gregg has been dealt with fairly. In this context I agree with Mr Sutton’s submission that Dr Gregg’s concern about witnesses having a ‘dry run’ in the disciplinary proceedings and improving their performance in any criminal trial can hold no weight, given Dr Gregg only seeks an adjournment until a decision by the CPS to charge.[117]However, the authorities relied on by Mr Sutton demonstrate that the decision to proceed is a sensitive one and the employer must proceed with care. In my judgment, the extent to which the Trust, and the Court, can scrutinise Dr Gregg’s legal advice is limited, given its privileged nature. It seems to me that, using the language of the Court in Lakshmi, it places both doctors (Dr Rege and Dr Gregg) in the intolerable position of having to second guess advice offered by lawyers. Nor does the legal advice appear to me to be over cautious, given the CPS has indicated it does not have enough information to prosecute in relation to Patient A.[118]At the end of Dr Rege’s evidence, in response to a question from the Court, Dr Rege said that the Trust would not release any information generated during the disciplinary proceedings to the police. This appeared to come as a surprise to Dr Gregg’s Counsel who responded in closing by pointing to the correspondence before the Court showing a close collaborative relationship between the Trust and the police and at least three examples of information sharing. I accept Mr Sutton’s response that, on closer examination, it appears that the information sharing has been the police passing information to the Trust and not the other way round. I also accept Dr Rege’s evidence that, to date, the Trust has not passed information to the police, without the consent of Dr Gregg.[119]However, whilst this goes someway to meeting Dr Gregg’s concerns, it does not, in my judgment, go far enough to be fair to Dr Gregg. The Trust’s reassurance, during the hearing, is at odds with a Memorandum of Understanding between the Association of Chief Police Officers, the Department of Health and the Health & Safety Executive about investigations into unexpected patient deaths, which makes clear that NHS organisations are expected to cooperate fully with police requests for information. Further, the Trust may find itself compelled to hand over evidence to the police. Moreover, Mr Sutton acknowledged that the Trust would still be required to pass information to the GMC.[120]Accordingly, I am of the view that, on the facts of this case, the Trust’s refusal to adjourn its disciplinary processes pending a decision by the CPS, breaches the implied term of trust and confidence in its contract with Dr Gregg. It is unfortunate that the police investigation has been lengthened by the additional cases referred to it but operational delay by investigating authorities is not a reason to penalise Dr Gregg.

Alternative procedure under Schedule 19

[121]Schedule 19 of Dr Gregg’s terms and conditions provides that a consultant’s contract may be terminated for reasons which include ‘Conduct’ and “Failure to hold or maintain a requisite qualification, registration or licence to practise”. Termination is on three months notice. There is no provision for a hearing under the schedule.[122]Under Schedule 19 the Trust can simply terminate Dr Gregg’s contract on three months notice for his registration failure. The Trust is not however proposing to do that. Instead, it intends to hold a hearing to consider terminating Dr Gregg’s contract.[123]I accept Mr Hyam’s submission that the Trust appears to be proposing to set up some form of alternative disciplinary hearing. Whilst any hearing will ostensibly be focused on Dr Gregg’s registration failures, those failures arise from concerns about Dr Gregg’s conduct, which have not yet been fully investigated. The interim suspension order is not made on the basis of established facts but on an assessment of risk, pending the establishment of the facts. Dr Gregg has not yet had an opportunity to present his defence in those proceedings. In the circumstances, it seems to me, that the Trust is seeking to sidestep a disciplinary process which it has contractually committed to and about which it has a detailed policy and procedures, in order to set up some form of nebulous alternative.[124]During the course of submissions, I enquired whether the Court could take account of the manner in which the Trust was proposing to terminate Dr Gregg’s contract of employment. It was agreed that Counsel would provide written submissions on the implications of Johnson v Unisys Ltd [2003] 1 AC 518, in which the House of Lords held that it was doubtful whether it was possible or desirable to extend the scope of the implied term of trust and confidence beyond the context of an ongoing relationship to termination of that relationship. It would be inappropriate, it is said, for the judiciary to extend the common law in circumstances where Parliament had already provided a system for redress via the employment tribunal system.[125]After the hearing I was provided with written submissions from both parties and three House of Lord authorities; Johnson v Unisys Ltd [2003] 1 AC 518; Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 AC 22 and Eastwood & Anor v Magnox Electric plc [2005] 1 AC 503.[126]In short, in its written submissions, the Trust contends that the exclusion in Johnson v Unisys applies in this context and the Court should not consider the question of fairness to Dr Gregg in the Trust’s proposed course of action. On behalf of Dr Gregg, Mr Hyam contends that the action proposed by the Trust is out-with the Johnson v Unisys exclusion and the Trust’s proposed course of action is in breach of the implied term of trust and confidence.[127]I have not had the benefit of oral argument on the points raised. Suffice to say, I am not persuaded that the Trust would be operating within the Johnson v Unisys exclusion, for the reasons set out by Lord Dyson in Edwards v Chesterfield Hospital NHS Trust at 42:
“That is not to say that an employer who starts a disciplinary process in breach of the express terms of the contract of employment is not acting in breach of contract. He plainly is. If that happens, it is open to the employee to seek an injunction to stop the process and/or to seek an appropriate declaration….. ....an injunction to prevent a threatened unfair dismissal does not cut across the statutory scheme for compensation for unfair dismissal. None of the objections based on the co-existence of inconsistent parallel common law and statutory rights applies. The grant of injunctive or declaratory relief for an actual or threatened breach of contract would not jeopardise the coherence of our employment laws and would not be a recipe for chaos in the way that, as presaged by Lord Millett in Johnson , the recognition of parallel and inconsistent rights to seek compensation for unfair dismissal in the tribunal and damages in the courts would be.”
[128]I accept that Lord Dyson’s comments were directed to an express breach of contract, but it seems to me that his assessment that the grant of injunctive or declaratory relief for breach of contract would not jeopardise the coherence of our employment laws is apt for present purposes. The rationale for the Johnson v Unisys exclusion has focused, in part, it seems to me, on the policy implications of the contrast between the statutory cap on compensation and open ended damages at common law; a rationale which does not apply here.[129]In Johnson v Unisys , Lord Millett referred to the exclusion being justified on the basis the implied obligation ‘cannot sensibly be used to extend the relationship beyond its agreed duration’ [549]. Yet, on the facts, the relationship between Dr Gregg and the Trust may have some way still to run. By proposing a hearing under Schedule 19, instead of simply terminating Dr Gregg’s contract as it is entitled to do, the Trust has elected to treat the contact as continuing, despite Dr Gregg’s repudiatory action in relation to registration failures.[130]In Eastwood v Magnox Electricity plc [2005] 1 AC 503, Lord Nicholls considered the boundary line for the Johnson exclusion: “If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition, in law such a cause of action exists independently of the dismissal” [528].[131]In my judgment, setting up a hearing under Schedule 19, to address the Trust’s concerns about Dr Gregg’s conduct, under the guise of terminating his contract for registration failures, is not being fair to Dr Gregg. The Trust cannot fairly switch from its formal disciplinary process, mid-way through that process, because it has become inconvenient for the Trust’s purposes, to some form of nebulous alternative disciplinary process under Schedule 19.[132]Accordingly, I am not prepared to grant the Trust the declaratory relief sought.

Cessation of pay

[133]The Trust has contracted with Dr Gregg not to make deductions from his salary without his express written consent, except as required by law (Clause 12 of the contract).[134]I accept Mr Sutton’s submission that paragraph 25 of part II of the MHPS, which provides that exclusion is usually on full pay but that in exceptional circumstances pay may not be justified if the practitioner is no longer available for work, is incorporated into Dr Gregg’s contract of employment. For the reasons set out above in the context of my assessment as to whether paragraph 12 of Part III is incorporated, I am of the view that Parts I and II of the MHPS do have contractual effect. Further, I accept that paragraph 25 is apt for incorporation (Alexander v Standard Telephones & Cables (No 2) [1991] IRLR 286).[135]Accordingly, I agree with Mr Sutton that the provision provides the Trust with a discretion to suspend Dr Gregg’s salary on the basis he is unavailable for work. However, I do not accept Mr Sutton’s contention that the discretion extends to the present circumstances whereby Dr Gregg is subject to an interim suspension order.[136]I agree with Mr Hyam that the ordinary and natural meaning of paragraph 25, read as a whole, is that ‘unavailability’ is to be construed as self- induced action by the employee: Keeping in contact and availability for work 25 An exclusion under this framework should usually be on full pay, the practitioner must remain available for work with their employer during their normal contracted hours. The practitioner must inform the case manager of any other organisation(s) with whom they undertake either voluntary or paid work and seek their case manager’s consent to continuing to undertake such work or to take annual leave or study leave. …In exceptional circumstances the case manager may decide that payment is not justified because the practitioner is no longer available for work (e.g. abroad without agreement) (underlining is Court’s emphasis).[137]The references to: being abroad; annual leave; study leave; voluntary work; paid work are all examples of actions freely undertaken by the doctor himself. In contrast, the interim suspension order has been imposed on Dr Gregg by a statutory regulator, against his wishes. It constitutes involuntary action.[138]Accordingly, in my judgment, the Trust is not entitled by the terms of paragraph 25 to stop paying Dr Gregg’s salary in circumstances where the Trust and the GMC have suspended Dr Gregg. Applying the relevant principles of contractual interpretation, I cannot see how the parties could have intended the contractual position to be construed differently if the Trust lifts its own suspension on grounds it is not necessary because of the GMC suspension in place.[139]Given my assessment of the contractual position, matters do not fall to be considered by reference to the common law doctrine of ready and willing to work. It is not however clear to me that this Court could come to a different view of matters under the common law, given the relevant House of Lords authority of Miles v Wakefield District Council [1987] ICR 368, in which Lord Oliver emphasised a similar distinction between the voluntary and involuntary ability of the employee to work.

Injunctive relief

[140]The grant of an injunction is a discretionary remedy. Each case will turn on its own facts but, as is common ground, the bar to Court intervention is high and it is not the Court’s role to micro-manage the course of disciplinary proceedings.[141]The allegations against Dr Gregg are serious and could result in imprisonment in the event of a criminal conviction. On current evidence, it appears that the CPS has previously taken the view that there is insufficient evidence to press charges in relation to Patient A. Dr Gregg seeks an adjournment to the disciplinary proceedings, for a limited period. He does so on the basis of legal advice, to avoid the risk of prejudicing himself in the criminal investigation. If the Trust proceeds with its disciplinary processes, Dr Gregg will not participate, on the basis of legal advice, although he wants an opportunity to present his defence to the Trust.[142]I have considered whether the Trust’s reassurance that it will not pass information generated during the disciplinary proceedings onto the police is sufficient protection for Dr Gregg such that the Court need not interfere. However the ability for the internal disciplinary process to have a corrective effect in this regard seems to me to be limited given; the policy position in the relevant Memorandum of Understanding encouraging NHS bodies to cooperate fully with the police, police powers to compel the production of evidence and the Trust’s information sharing with the GMC.[143]In the circumstances I consider that the threshold for injunctive relief is met.

Conclusion

[144]For the reasons set out above, my decisions are as follows:a. The Trust is in breach of the implied term of mutual trust and confidence, in its contract of employment with Dr Gregg, in refusing to adjourn its disciplinary processes into the deaths of two patients under Dr Gregg’s care, pending a decision by the Crown Prosecution Service whether to charge Dr Gregg in connection with the deaths. I grant injunctive relief to this effect.b. It would be a breach of the implied term of trust and confidence for the Trust to proceed to convene an alternative disciplinary process, under Schedule 19 of the Dr Gregg’s terms and conditions, to consider terminating Dr Gregg’s contract of employment on grounds of his failure to hold the requisite registration. Accordingly, I decline to grant the declaratory relief sought.c. The Trust is not entitled, by the terms of paragraph 25 of Part II of the MHPS, to exercise its discretion to stop paying Dr Gregg’s salary in circumstances where the Trust and the GMC have suspended him. Applying the relevant principles of contractual construction, I cannot see how the position can be construed differently if the Trust lifts its own suspension on grounds it is not necessary because of the GMC suspension in place. I grant declaratory relief to this effect.[145]I invite Counsel to agree a form of order. I will hear submissions on any consequential matters, either in writing or at a convenient date.

Postscript – extempore judgment of 27th February 2018

[146]After my draft judgment in this case was sent to the parties for corrections, the Trust made two applications:a. for the admission of fresh evidence as to the timetable for any decision to press charges against Dr Gregg by the CPS; in particular a letter from Dr Rege, the Trust Director, dated 19th February 2018, setting out the latest information on the timetable and an email from the police confirming the position;b. to revisit paragraph 144b of my judgment which contains my decision on the Trust’s counterclaim and in particular, my decision to decline to grant declaratory relief in respect of this aspect of the claim.[147]Having received the applications, I asked the parties to return before me to consider matters. The parties accordingly appeared before me on Tuesday 27th February. I have been provided with written notes of Counsels’ submissions which have been amplified orally this morning. This is my extempore judgment in respect of those applications

Applicable principles

[148]Mr Hyam drew my attention to the note to the White Book at CPR 40 on judgments and in particular 40.2.1.2 which considers the position with respect to alteration of draft judgments, as well as the judgment of Royal Brompton Hospital NHS Trust v Hammond [2001] EWCA Civ 778. In essence, the position I should take will depend on the facts and circumstances before me and I should deal with matters according to the overriding objective. Nonetheless, the Courts have made clear that draft judgments are not to be a routine opportunity to seek to persuade a Judge to change his or her mind or to reopen arguments. There must be good reason to seek to do so.[149]More specifically, on the introduction of fresh evidence, Mr Hyman drew my attention to the cases of Vringo Infrastructure v ZTE (UK) Ltd [2015] EWHC 214; In re L and another (children) [2013] UKSC 8 and Absolute Lofts South West London Ltd v Artisan Home Improvements & another [2015] EWHC 2632 which he said showed, broadly speaking the courts take a lenient Ladd v Marshall approach to the admission of new evidence. Both Counsel were agreed that the case of Vernon v Bosley No 2 [1997] 3 WLR at 692B was an example of a case where it was considered appropriate to admit fresh evidence. Evidence came to light shortly before judgment was draw up that showed the Plaintiffs condition had dramatically improved in the context of a personal injury claim. In giving judgment Stewart Smith LJ stated that the principle that there should be finality in litigation should be borne in mind and evidence could not be admitted of every change which might have occurred since trial. Mr Sutton took me to extracts of the judgment on obligations in relation to continuing disclosure by the parties.[150]There was no material dispute between the parties on the applicable principles.

Introduction of new evidence

[151]I set out my reasons why I consider the Trust to be acting unfairly towards Dr Gregg in refusing to adjourn the disciplinary proceedings at paragraphs 59, 112, 116, 117, 118, 119 and 140 – 143. My reasons are based on:a. The Trust’s failure to engage with Dr Gregg’s concerns.b. The adjournment sought is to a decision by the CPS to charge not, a longer period until the end of any criminal proceedings, as previously sought. This was the context in which I referred to the case of Lakshmi at paragraph 111 of my judgment.c. Dr Gregg’s legal advice advising him not to participate in the disciplinary proceedings, advice which he intends to follow.d. My assessment that the legal advice does not appear to be over cautious given the CPS may not have enough evidence to charge in the case of one of the patients.e. The Trust’s reassurance that it will not pass any information generated by the disciplinary proceedings to the police provides limited protection to Dr Gregg.f. The police expect to be in a position to give an update on the next stage of the investigation at the end of February.[152]It seems to me that the new evidence sought to be introduced constitutes the update by the police on the next stage of the investigation, which I referred to at paragraph 112 of my draft judgment. The current position is that a charging decision is not expected to be made until June at the earliest.

Discussion

[153]The reasons for my judgment are not based on any understanding on my part of a date for the charging decision. Mr Hyam made submissions to me on the likely date of any charging decision, which I recorded at paragraph 59 of my decision, but they did not form part of the reasons for my judgment because they appeared to me to be conjecture. I am now provided with information suggesting that any charging decision is at least three months away but which appears to continue to be somewhat a matter of conjecture. In her letter to the Court Dr Rege states that that “the police do not know when this charging decision will be made but have informed me that they do not anticipate that a charging decision will be made before June 2018 ‘at the very earliest’.[154]I accept that it is proper for the Trust to have brought the evidence to the Court’s attention and I am grateful to the Trust for having done so. I am not however persuaded that this material is likely to be an important influence on my judgment such that I should admit it, in circumstances where I have arrived at my decision about fairness on a range of factors which do not include an understanding of the charging date, let alone any mistaken or wrong assumption about the charging date.[155]I accept that there may come a time when delay in the police investigation does start to alter the scales of fairness in which case the appropriate course of action is for the Trust to apply to discharge the injunction, but, in my judgment that time has not yet come, on the material currently available to me. In this context I observe that the disciplinary matters appear to be at their present, ongoing, standstill because the police wish to issue a single charging decision in respect of all the additional cases against Dr Gregg. Either the police have enough evidence to charge Dr Gregg in relation to Patients A and B, in which case informing the Trust of this, may be helpful in assisting the Trust to move on with its disciplinary processes. Alternatively the police do not currently have enough information, in which case, as set out in my judgment, the legal advice to Dr Gregg not to participate in the disciplinary proceedings does not appear over cautious. I should emphasize that in making this observation I am not in any way seeking to direct how the police or the CPS conduct their investigation, which is a matter for them and not for this Court.

Application in relation to declaratory relief on the Trust’s counterclaim

[156]Paragraph 144b of my judgment is my decision based on the case put to me. See paragraph 93 of my draft judgment where I set out the Trust’s proposed course of action Alternatively, the Trust proposes to proceed to a hearing to decide whether to terminate Dr Gregg’s contract, on three months notice, on grounds of his failure to be registered to practise.[157]Whilst I understand and appreciate the force of Mr Sutton’s submission that the Trust needs to know how it can now proceed in this difficult set of circumstances, it would not in my judgment be appropriate or just to award declaratory relief on a proposed revised course of action by the Trust. That was not the case put before me and Dr Gregg’s lawyers strenuously object to the relief sought. Submissions by Counsel this morning in this respect appeared to amount, in part, to a repeat or reworking of submissions made at trial. Counsel could not even agree between themselves whether or not they were attempting to reargue the case before me and which one of them was seeking impermissibly to do so. To my mind, this demonstrates that it would not be appropriate for the Court to change the declaratory relief granted.[158]Stepping back from the detail of the submissions before me, what appears to be happening is that the Trust is quite properly reflecting on the views I have arrived at in my draft judgment and revising its course of action. It is of course open to the Trust to draw upon the paragraphs of my judgment as it sees fit in deciding on a future course of action. It is not however in my view appropriate for the Court to provide a running commentary on the Trust’s actions. That is the job of its legal advisors and I have not been provided with sufficient reasons to displace my view in this regard.[159]Accordingly I dismiss both applications[160]Judgment in this case is accordingly handed down in the form of the draft judgment circulated to the parties on 19th February, with corrections and with this extempore judgment appended to the end of the draft judgment as a postscript.[161]I will now hear argument on consequential matters.

order

“Under section 41C of the Medical Act your licence will be withdrawn for the period of the suspension of your registration. This means that: • It is not open to you to hold any appointment as a medical practitioner for which registration and a licence are required.” • It is not open to you to hold any appointment as a medical practitioner for which registration and a licence are required.”

Cited in 2 later judgments