Idu v East Suffolk and North Essex NHS Foundation Trust

Conduct associated with a doctor's work does not necessarily mean that it relates to their "professional conduct", decides Court of Appeal

In a helpful decision for NHS employers, the Court of Appeal has provided some clarity on the distinction made in Maintaining High Professional Standards in the NHS (“MHPS”) between personal and professional misconduct. The Court held that there is no need for a disciplinary panel to include an independent medically qualified person in cases where the fact that the relevant employee was a doctor was no more than the context in which the allegations arose.

The facts

The practitioner worked as a surgeon for the Trust. The Trust’s disciplinary procedure required cases involving professional conduct to include an independent doctor as a member of the disciplinary hearing panel, in accordance with MHPS. The Trust considered that there was no need for an independent medically qualified person to be on the panel because the allegations against the practitioner related to her personal rather than her professional conduct. The Trust went on to find that the doctor had failed to follow reasonable management instructions; engage appropriately with management; and had used inappropriate tone and style of communications with management and colleagues. She was dismissed on the grounds of gross misconduct.

The practitioner alleged that the Trust should have treated the allegations as professional conduct, rather than personal conduct and the disciplinary panel should have comprised an independent medically qualified person. She brought a claim for unfair dismissal and breach of contract, amongst other allegations. The Employment Tribunal dismissed these claims, finding that the disciplinary allegations related to the doctor’s personal, not professional, conduct. This decision was upheld by the Employment Appeal Tribunal. The practitioner appealed this decision, arguing that the question of her medical skills should be considered broadly, to cover the full range of her professional responsibilities.

The decision

The Court of Appeal dismissed the appeal. It held that professional conduct arises from the exercise of medical skills but it does not simply concern everything done by a doctor in the course of their work. The Court found that a typical example of professional conduct is conduct by doctors in the course of their treatment of patients, which will usually, equate to clinical misconduct.
The Court recognised that the question of whether conduct arises from the exercise of medical skills is uncertain and there will always be borderline cases. However, it was not the case that anything done by a doctor, which in some way related to the exercise of their medical skills, involved their professional conduct.
Providing guidance, the Court held when deciding whether allegations amount to personal or professional conduct, it would typically be helpful to ask whether the expertise of an independent doctor would have been necessary to decide the issue in question.

What does this mean for me?

This is a helpful Judgement for NHS employers to consider when managing concerns about the conduct of medical practitioners, in accordance with MHPS. It remains the case that disciplinary hearing panels comprised to consider allegations of professional misconduct should include a panel member who is an independent medically qualified person. However, the Judgment confirms that simply because the allegations in some way relate to the exercise of a practitioner’s medical skills does not mean that the allegations necessarily relate to their professional conduct.

Comment

This is a helpful decision for NHS employers and provides some clarity on the distinction between personal and professional misconduct. However, the case is also a useful reminder that there will always be borderline cases and that NHS Trusts should consider with care whether allegations relate to the practitioner’s personal or professional misconduct.

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 further please contact Ian Pace, Principal Associate at ian.pace@weightmans.com or speak to your usual contact in the Weightmans Employment Pensions and Immigration team.

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