Doctors who are subject to a GMC interim suspension should continue to be paid, decides Court of Appeal

Summary

In a very important decision for NHS employers, the Court of Appeal has held that an NHS Trust was not entitled to withhold salary from a doctor, despite him not being able to perform his role because he was subject to a GMC interim suspension order (in the case of North West Anglia NHS Foundation Trust v Gregg).

More positively for NHS employers, the Court also held that the Trust had been entitled to commence internal disciplinary proceedings against the doctor whilst a criminal investigation was ongoing because there was no evidence that the Trust’s internal investigation would give rise to a miscarriage of justice.

The facts

The doctor was employed by the Trust as a consultant in anaesthetics. His contract of employment provided that deductions would not be made from his salary without consent, other than as required by law; and that it was a condition of his employment that he remained fully registered with the GMC and continued to hold a licence to practice.

During 2016 and 2017 the Trust became concerned that the doctor had hastened the deaths of two patients and commenced internal disciplinary proceedings, in accordance with Maintaining High Professional Standards in the NHS (MHPS). The police were also notified and a criminal investigation commenced. The doctor was excluded on full pay, pursuant to MHPS.

The criminal investigation found insufficient information to charge the doctor in relation to one patient death but the investigation into another patient’s death, continued. The GMC suspended the doctor's registration to practice for 18 months. The Trust lifted its exclusion but stopped his salary because he could no longer fulfil his role, during the suspension. The doctor refused to participate in the Trust’s disciplinary investigation because he feared prejudicing the criminal investigation. The Trust refused to adjourn the investigation hearing. The doctor successfully applied for an injunction to prevent the Trust from continuing with its investigation; and claimed that the decision to withhold pay was in breach of contract.

The Trust appealed this decision.

The decision

1. Was the doctor entitled to be paid during his interim suspension?

The Court of Appeal found that the doctor was entitled to be paid during the course of his suspension, despite not being able to work. The court held that the default position is that an interim suspension should not result in the deduction of pay, where the contract did not address the issue of pay deduction during suspension.

As is often the case, the doctor's contract of employment did not allow the Trust to deduct pay in these circumstances and the Trust was not, therefore, entitled to make the deduction.

2. Did the Trust need to wait for the conclusion of the criminal proceedings before commencing internal disciplinary proceedings

The Court held that the Trust did not necessarily need to wait for the conclusion of the criminal investigations before commencing internal disciplinary proceedings. The courts will generally only intervene by imposing an injunction if an employee could show that the continuation of the disciplinary proceedings gave rise to a real danger of miscarriage of justice in the criminal proceedings.

What does this mean for me?

This is an important Judgment for all of you who are NHS employers to consider when managing concerns about the capability or conduct of medical practitioners, in accordance with MHPS.

It remains the case the doctors who are excluded pursuant to MHPS, pending completion of an internal investigation, should continue to receive full pay. This decision clarifies that you are also under an obligation to continue paying doctors whose registration is suspended on an interim basis, despite them not being able to fulfil their responsibilities, unless there is an express provision in the employment contract allowing pay to be withheld (which is unlikely).

The Judgment also confirms that internal disciplinary investigations may proceed in parallel to external criminal investigations where there is no danger of a miscarriage of justice. This will need to be considered with care and will depend upon the particular circumstances which you face. The police may in practice still continue to instruct you not to proceed with the internal investigation until the criminal investigation has been completed when it will be difficult to do so. However where a doctor you employ objects or refuses to provide any evidence to assist as part of the investigation, you may on occasion be able to continue your internal procedures.

Comment

The Judgment is disappointing insofar as it means that there is a continuing obligation to pay doctors whose registration is suspended on an interim basis, despite them being unable to provide their services to you. However, the decision does provide some confidence that you will not always need to wait for the conclusion of criminal investigations before commencing (or pursuing) internal disciplinary proceedings.

Managing concerns about the capability and conduct of medical practitioners is a complex area. If this does raise any issues for your organisation or you would like to discuss this (or MHPS) further please contact Ian Pace, Associate at ian.pace@weightmans.com or speak to your usual contact in the Weightmans Employment Pensions and Immigration team.