Darnell v Trent Regional Health Authority [1993] UKEAT 422_90_0402

EMPOLYMENT APPEAL TRIBUNAL

BAILII case number: [1993] UKEAT 422_90_0402

Case No Appeal No. EAT/422/90

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

Darnell

Trent Regional Health Authority

Date 1 April 1977

MR JUSTICE WOOD (PRESIDENT) : By an Originating Application dated 16th May 1986, Dr Darnell complained that he had been unfairly dismissed by his employers Trent Regional Health Authority (Trent) on 21st February 1986. He claimed reinstatement, or alternatively compensation. At the time he was a consultant microbiologist. After a hearing on 15th and 16th January 1990, an Industrial Tribunal sitting at Nottingham under the Chairmanship of Mr Brown, rejected his application in a decision promulgated on 23rd February 1990. His Notice of Appeal is dated 6th April 1990. This is a difficult and complex case. The file was referred to the Listing Officer of this Tribunal in January 1991 and she has been trying to list it during the latter half of 1992. However, estimates of its length have differed from time to time and representation has altered, so that it was not until early this year that dates could be agreed for the hearing. It is another example of the unsatisfactory delays presently experienced at this Tribunal, whether the causes are singular or multiple.

We allowed Dr Darnell to amend his notice of appeal.

The history is lengthy. At times Dr Darnell has represented himself, at others we were told that he has been represented by three firms of solicitors, five members of the Bar and an academic lawyer. There are many hundreds of pages of documents which merit close attention, but so far as the facts are concerned essential reading is to be found in the Kenny Report dated 9th December 1983 and the judgment of Stephen Brown LJ given in the Divisional Court of the Queen's Bench Division on 21st July 1986 in the first judicial review hearing.

"Serious professional misconduct" - This phrase has been central to much of the argument before us and it is important to understand it. No one at any time has questioned the clinical competence of Dr Darnell. "Serious" in the present context indicates that the misconduct could lead to dismissal, and "professional misconduct" indicates misconduct in a professional capacity - not in a capacity unconnected with professional duties and obligations.

To begin with we deal with the matter broadly. In 1977 Dr Darnell, as a consultant microbiologist, became the Director of the Public Health Authority laboratory at Derby, which was itself the responsibility of the Area Health Authority (AHA). He himself was employed by Trent. As such he was the "budget holder" and responsible for the overall working and management of that laboratory. As early as 1978 serious problems arose concerning the appointment of Medical Laboratory Scientific Officers to the Microbiology Department. In April 1979 an interview had to be abandoned and issues arose over the composition of interviewing panels and the role of the consultant. A standard practice was adopted in June 1979 and endorsed by the AHA in September 1980. In that year Dr Bullock was appointed as the second consultant microbiologist. Dr Darnell refused to be responsible for appointments made under the new system. In part he has refused to participate or co-operate in the work of the division. There were also disputes in connection with the budget. These various issues we mention broadly to indicate the sphere in which professional misconduct was alleged. It was not just a criticism of Dr Darnell as "awkward", but it was the effect of this in connection with his professional duties and obligations that the allegations were made. It was his medical management of the laboratory.

Chronology

On 1st April 1977

On 30th June 1982 Dr Darnell was told of the principal grounds for the disciplinary proceedings and that preparation of documentation would take some weeks. He was advised to seek legal advice. On 15th July 1982 Messrs Le Brasseur & Bury instructed by the Medical Protection Society indicated their interest on Dr Darnell's behalf and asked for the papers at the earliest opportunity. In a reply of 28th July the Regional solicitor repeats that the papers are "voluminous", and adds, "in with my normal practice the procedure will be followed through as fast as is reasonably practicable having regard to your client's rights and the number and complexity of the matters that might be in dispute". On 10th August this voluminous documentation is sent to and in accordance with HM(61) 112, Dr Darnell is asked for commentary. There is also a schedule of complaints drafted by counsel. Le Brasseur's reply on 13th October saying that Dr Darnell wishes to make representations and hoping to supply them by 25th of that month. The reply is in fact dated 2nd December and consists of general comments only. The papers were all considered by the Chairman and under the "112" procedure a letter was sent to the Department of Health and Social Security (DHSS) on 8th March 1983 saying that an enquiry was being established. Thereafter members were appointed and dates and procedures agreed. On 11th May 1983 a supplemental statement of complaints was served.

The "112" enquiry began on 13th June 1983. The panel was presided over by Mr Kenny QC (subsequently His Honour Judge Kenny). Dr Darnell was represented by solicitors and counsel. The hearing lasted 32 days and the report is dated 9th December 1983. On 12th December 1983 Trent resolved to set up a sub-committee to consider the report and to hear any representations to be made by Dr Darnell. Subsequently Dr Darnell was ill and it was not until 11th May 1984 that the sub-committee could hear his representations. On that occasion counsel submitted that the hearing should be conducted by the full membership of Trent in public session. The committee declined and proceeded with the hearing. On 14th May 1984 Trent resolved to give Dr Darnell three months' notice and to continue his suspension from duty during such notice in pursuance of the recommendations of the sub-committee.

On 16th May Dr Darnell received a letter informing him of the resolution and indicating that his last day of service would be 19th August 1984.

On 23rd May 1984 the BMA lodged a "190" appeal on Dr Darnell's behalf. This is a reference to paragraph 190 of Dr Darnell's Terms and Conditions of Service. The BMA were to represent Dr Darnell at this appeal. On 14th May 1985 the hearing took place before the "190" professional committee. It lasted one day and Dr Darnell was represented by the BMA. On 25th July that professional committee reported. It recommended that Dr Darnell should be offered a post without managerial responsibility elsewhere in the region and a letter to this effect was written by the DHSS to Mr Edwards on 16th October 1985. On 6th January 1986 Trent notified the DHSS that due to the wording of the direction from the Secretary of State they wished to challenge its effect on legal grounds, and that the criticism of the professional committee should be rejected. On 21st February 1986 DHSS wrote to Trent indicating a change of mind and stating that the termination of Dr Darnell's services by Trent should be confirmed.

On 25th April 1986 Dr Darnell applied for judicial review of the decision of the Secretary of State. On 17th July this application was heard. On 21st July 1986 his motion was allowed and the decision of the Secretary of State for Social Services that the termination of Dr Darnell's services be confirmed was declared nul and void, and of no effect. The matter was to be remitted to the Secretary of State for reconsideration. On 25th October 1986 the BMA sought a second "190" appeal. On 31st December the Secretary of State asked each side to comment orally on written representations by the other side. Dr Darnell refused to attend a meeting. On 15th April 1987 the Secretary of State rejected the application for a second "190" appeal and proceeded to an ad hoc committee. In August 1987 Dr Darnell refused to attend such a committee despite the advice of the BMA. On 30th September 1987 the Secretary of State proceeded on the basis of written material; Dr Oliver was asked for further advice in February 1988, and by a letter of 18th March 1988 both sides were notified that the Minister of State had decided to confirm the decision of Trent to terminate Dr Darnell's employment. This therefore was the effective date of termination.

On 30th March 1988 Dr Darnell sought a second judicial review. Leave was granted on 11th May 1988 to Dr Darnell in person, but on 3rd November 1988 Mr Justice Macpherson ordered that the application for judicial review be dismissed with costs. Dr Darnell appeared in person. At the conclusion of his judgment Mr Justice Macpherson says -

"In fairness, however, to the officials involved in this matter since the court's first judgment I say firmly that I see no injustice, no unfairness, no breach of law or proper practice, no flaw in the steps taken which led to the Minister's ultimate decision of March 1988. Sadly for Dr Darnell this is in my judgment the end of the road and his application is dismissed."

On 2nd December 1988 Dr Darnell submitted a claim to the European Commission of Human Rights and this was admitted on 10th April 1991. On 13th May 1992 the Commission found violation of Article 6 and on 5th September 1992 referred the matter to the European Court of Human Rights for decision on the issues. The Commission recommended that the United Kingdom Government pay compensation and costs to Dr Darnell. The final hearing is due to take place on 20th April this year.

We must now turn to the procedures which are relevant to this case. HM (61) 112 is a document which gives guidance on procedure to be followed in serious disciplinary cases involving hospital doctors or dentists. It is not of contractual force and is merely a guide. The guidance is intended to cover broadly three types of cases which may involve medical or dental staff:

(a) Cases involving personal conduct;

(b) Cases involving professional conduct;

It indicates that it is for the Authority to decide into which category the case falls. In the present case it was (b). The guidance then advises on preliminary investigation; the decision of the Chairman to decide on a prima facie case; reasonable time to make representations and to seek advice; and an enquiry, which in this case was the Kenny enquiry. There are extensive provisions in connection with the enquiry and importance is stressed upon the enquiry eliciting all the relevant facts. After the panel of enquiry has reported the following indication in paragraph 14 is given:

"The panel should send the practitioner a copy of the first part of their report and should allow a period of fourteen days for the submission to them of any proposals for corrections of fact or for setting out in greater detail the facts on any matter which has arisen. It would be for the panel to decide whether to accept any proposed amendments and whether any further hearing was necessary to enable them thus to decide. Subject to this procedure, the facts as set out in the panel's report should be accepted as established in any subsequent consideration of the matter."

The details of that procedure are somewhat imprecise but the overall guidance is clear enough. We are informed that a more modern procedure with strict time limits has now been brought into operation.

As we have indicated, the enquiry before His Honour Judge Kenny lasted for 32 days between 13th June and 14th August 1983. Dr Darnell was represented at the hearing by counsel, witnesses gave evidence orally and were cross-examined. Dr Darnell was found to be at fault, first, in respect of his relations with the Division of Pathology; secondly, in certain aspects of the budget disputes; thirdly, the dispute as to the procedure for the appointment of medical laboratory scientific officer staff; fourthly, his management of the microbiology department; and fifthly, for two specific matters of complaint in relation to procedure for safety and practicing after being suspended from duty. The enquiry made no adverse findings in connection with five other specific matters.

It was upon the findings of fact made by the Kenny enquiry that Trent relied in reaching its conclusions. This was all carried out pursuant to the "112" procedure.

Section 190 is of paramount importance in the present case and we set it out in full.

"190. Where a consultant, senior hospital medical officer, senior hospital dental officer, associate specialist, child psychiatrist (appointed to a personal substantive grade under Circular HC(79)7) or hospital practitioner considers that his appointment is being unfairly terminated, he shall be entitled to send a full statement of the facts to the Secretary of State who will obtain the written views of the authority concerned and place the case before a professional committee (consisting of representatives of the Secretary of State and representatives of the profession, under the chairmanship of the Chief Medical Officer or if he is unable to act a Deputy Chief Medical Officer) for their advice. The committee shall have discretion to interview both parties if they think fit. In the light of their advice the Secretary of State may confirm the termination of services, or direct that the practitioner's employment should continue, or arrange some third solution agreeable to the parties concerned such as re-employment in a different post. This procedure shall be completed before the authority's decision to terminate the appointment is carried into effect; and where the Secretary of State's decision cannot be given before the expiry of the notice given, such notice shall be extended for a month or longer period by the Authority until the Secretary of State's decision is given."

The first point to note is that this appeal procedure is triggered by the Doctor who is alleging that he has been unfairly dismissed. Secondly, the Secretary of State in placing the papers before a professional committee can only seek its "advice". He can only act in the light of that advice, and he can only take one of three courses:(a) to confirm the termination; or

(b) to direct that the employment should continue; or

This latter is often referred to as "the third option", and it can only be successful if both parties agree.

The decision of the employer to dismiss is suspended during this appeal process and in the present case the decision of 14th May 1984 to terminate Dr Darnell's employment on 19th August of that year was suspended so that the final date of his employment was delayed from 19th August 1984 to 18th March 1988.

The Appellant's case

Mr McMullen made his submissions under three headings.

First he submitted that the delay in this case whether over particular periods or in accumulation was such as to render the dismissal unfair. The four periods which he identified were:

th December 1980 to 22nd June 1982

June 1982 to December 1983

December 1983 to 16th May 1984 (letter of dismissal)

May 1984 to March 1988.

He also asked us to regard the whole period from December 1980 to March 1988 as an excessive and unreasonable delay.

Secondly he submitted that the procedure adopted was defective in the following respects:

(a) No warning was given to Dr Darnell during the initial stages.

(b) The procedure suggested in Circular "112" was not properly carried out.

(d) That there should have been a second "190" enquiry before a professional panel.

Thirdly, he submits that the reason for the dismissal - "serious professional misconduct" was in 1984 "within the band of reasonable response", but in 1988 it was not. He contended that at all times Trent were responsible or had to accept as its own, the conduct of the Secretary of State and that Trent through the conduct of the Secretary of State could and should be held to have acted unfairly. Trent should be held responsible for everything which had happened since the initiation of the "190" appeal. Thus, before reaching a decision in March 1988 Trent should have considered not only the Kenny Report but the advice and comments of the "190" panel.

Mr McMullen made submissions about the first two periods together. The Tribunal dealt with these in paragraphs 38 to 40. Those are the only paragraphs dealing with delay.

"38. Mr Morgan complains of the delay between the formal complaint in December 1980 and the allegations in 1982. The applicant had, however, been made aware of the problems. He had received a letter in March 1981 which was followed by a discussion. He was aware in August of that year that enquiries were continuing. In view of the complex nature of the complaints, it is not surprising that the enquiries took several months to complete.

39. It might have been better if the respondents had arranged for a senior medical officer to speak to the applicant directly rather than to take formal steps to appoint a sub-committee to interview him. This Tribunal, however, is not persuaded that the applicant has in any way been prejudiced by the time which lapsed until a decision was finally reached. The applicant was paid his salary in full until March 1988.

40. The applicant acknowledged, in the course of his evidence, that his management had been a source of contention. He was, at all times, aware of the increasing measure of disagreement. He knew, particularly from the letter which he received in March 1981, that there was trouble ahead and that there was increasing dissatisfaction with the way in which he discharged his management responsibilities. The applicant did not assist matters by the manner which he adopted. A letter which he wrote to the respondents on the 11 May 1981 was unnecessarily defensive. The bare denials of allegations which he made through his solicitors by letter dated 2 December 1982 and his rejection of the findings of the Kenny enquiry indicated an obstructive and unhelpful attitude."

The submission is that these findings were perverse. The issue is whether during these periods the delay was of such length - one might possibly use the phrase "culpable" - so as to render the procedures of the employer unfair to the prejudice of Dr Darnell. It was a question of fact. Mr McMullen submits that the issue of misconduct was simple and did not concern Dr Darnell in his professional capacity. Therefore the simplicity of the issue and the length of the delay was such as to make the procedures unfair. Secondly, it is submitted that there were no specific findings in connection with short intervals during these periods. There was also a particular criticism of the comment that because Dr Darnell was paid his salary in full, he was not in anyway prejudiced by the delay. This last comment seems to us to arise from an unfortunate phrasing in paragraph 39; if it could be understood that the suspension was not prejudicial, but we do not so read it. Although we might have rephrased this comment ourselves, we do not consider that it can be read in the way in which Mr McMullen suggests.

We are unable to agree with these submissions. There was a very substantial body of evidence, it was voluminous and complex. Dr Darnell's future could be said to have been at stake. The Industrial Tribunal was able to see and hear witnesses. Having considered the whole matter, the correspondence and in particular all that occurred up to the holding of the Kenny enquiry, the industrial members fully understand the detailed care and investigation which would have been required in the present case. I agree with them.

The third period identified is that between the Kenny Report and the letter of dismissal. We can find no basis for criticism on the ground of delay during this period.

The fourth period is between May 1984 and March 1988. This is the period covered by the "section 190" appeal process and is most conveniently considered when looking at Mr McMullen's last point. We can find no delay attributable to Trent during this period.

We therefore reject the Appellant's case based upon delay.

Procedure

It is convenient to deal with the first two points together. The Tribunal in paragraphs 41 and 42 say this:

"41. The applicant was a senior officer at a level for which a formal warning of conduct or a requirement to improve his standard of performance was not necessarily appropriate.

42. Mr Morgan's contention that the rules of procedure were not explained to the applicant expressly by the respondents has no substance. The applicant is a man of considerable intelligence and he had skilled advisors representing him."

The "112" procedure is purely intended as guidance. It is true that the timetable is not precisely defined and indeed, as we have said under more recent procedure this is now set forth in detail. It is necessary therefore to look at the whole picture of what occurred in those early stages of the enquiry up to and including the Kenny Report. Mr Nolan has taken us carefully through correspondence and documentation. We are quite satisfied that the spirit of circular 112 was followed fully in what occurred and that the Regional solicitor was well aware of the guidance given. The Tribunal took the view that a warning in the sense that might have been given to a manual worker was not necessary in the present case, as the picture was all too clear for all those who were involved. We agree.

It is difficult to see where the allegation of unfairness lies in the fact that a fresh sub-committee was assembled to consider the Kenny Report and that any submissions or comments which Dr Darnell or his advisers might wish to make were considered before reaching a conclusion on what steps should be taken. We can find no substance in this criticism and if and insofar as it is suggested it did not follow some set procedure, that we do not accept.

Lastly, Mr McMullen criticised the fact that there was no second "190" appeal. This was not a matter for Trent, it was entirely in the discretion of the Secretary of State and we have already referred to the judicial review proceedings.

It follows that we reject the allegations of any unfairness due to a failure in procedures.

The decision to dismiss

Mr McMullen accepts that whatever the position in 1984 that position had changed by 1988 the relevant date.

The precise purpose of the section 190 appeal procedure and what is capable of being achieved under it must be understood. We reject the suggestion that Trent are responsible for everything that is done by the Secretary of State. In no way is the Secretary of State acting as agent for Trent. The procedure is carefully set out, the comments of the professional panel are only "advice" and there are only three things which the Secretary of State can do. An attempt was made to work through the medium of the "third option", but it is quite clear from the documentation and the evidence before us, that Dr Darnell and Trent could not come to agreement for an alternative post. Thus, the third option failed.

In the light of this, only two things could happen. Either the Secretary of State directed that employment should continue or the original decision of Trent stood. The latter was the decision reached by the Secretary of State and nothing that Trent could do in the interim is open to criticism in any way. In 1988 they were not reconsidering the decision of 1984, that decision had been reached, the only question is whether it should stand or not. We do not see that it is appropriate to criticise them for not re-opening the whole matter from the start. They were perfectly entitled to rely on the findings in Kenny despite Mr McMullen's submission that this was not so. We are quite unable to accept his arguments on this matter.

So far as delay with this last period is concerned, the section 190 appeal procedure was triggered by Dr Darnell himself and therefore any question of delay is the responsibility of Dr Darnell or of the Secretary of State, but not of Trent.

In the course of his speech in reply Mr McMullen addressed a point which had arisen during argument. He submitted that the general disciplinary procedures agreed between the Trade Unions and the Health Authority should be read into the HM(61) 112 guidance procedure. We reject this submission for a number of reasons, but the basic flaw is that in paragraph 1.2 of the Disciplinary Procedure we find the following:

"(NB In cases of alleged serious misconduct or professional misconduct or capability involving medical and dental staff employed by the RHA, existing national and local procedures will be used)".

This clearly indicates that the 112 procedure was the correct one to be used in the present case.

It follows therefore that this appeal must be dismissed.

There was an interlocutory application made to me on 27th January 1993. Dr Darnell, acting in person, was applying for specific discovery. I heard this matter sitting alone and gave judgment rejecting his applications. The issue of costs was raised and I reserved it to myself to be considered after I had heard the full appeal. In the outcome I am quite satisfied that the application was not a reasonable one and the Respondents, Trent Regional Health Authority must have their costs of that interlocutory application to be taxed if not agreed. I so order.