UK: Decision To Grant Injunction Was Inappropriate In The Circumstances

Decision to grant injunction was inappropriate in the circumstances

The case of West London Mental Health NHS Trust v Chhabra

In the case of West London Mental Health NHS Trust v Chhabra, the Court of Appeal recently overturned the High Court's decision to grant a doctor an injunction to restrain the Trust from proceeding with disciplinary proceedings for misconduct.

Background

Dr Chhabra was employed as a consultant forensic psychiatrist by the Trust and worked at Broadmoor Hospital. An allegation was made that whilst travelling as a passenger on the train, she had on a few occasions breached patient confidentiality by reading files, dictating reports and making telephone calls in such a way that confidential patient information was either visible or audible to fellow passengers. Dr Chhabra admitted to reading files and dictating reports, but denied that any of her telephone calls involved the discussion of confidential material.

The investigation report was prepared by an external case investigator who was also a consultant forensic psychiatrist. The report was passed on to the case manager, the Trust's Medical Director who, having concluded that the matter was potentially gross misconduct, referred it on to a disciplinary panel, in line with the Trust's policy. There were also allegations and issues relating to team work and communication which were to be dealt with under capability proceedings, but these proceedings were put on hold until the disciplinary hearing had been concluded. Dr Chhabra applied to the High Court for an injunction to prevent the disciplinary hearing about her conduct taking place.

High Court

There were a number of disputes about the way in which the process has been handled by the Trust which Dr Chhabra alleged amounted to a breach of contract. The main argument was that under the Trust's policy the case manager was required to make their decision solely upon the findings in the investigation report. However, in making the decision to refer the matter to the disciplinary panel, the case manager had gone beyond the findings contained in the report. It was argued that the report itself did not conclude that the conduct was gross misconduct and that despite this, correspondence from the case manager to Dr Chhabra referred to the conduct as such. The case manager in his own evidence had also admitted that gross misconduct required wilfulness on behalf of Dr Chhabra, which again, was not made out in the report.

The Court agreed and held that the finding of gross misconduct could not be made out on the basis of the investigation report and that in doing so and referring the matter to a disciplinary panel the Trust was in breach of contract. The Court went on to conclude that, due to the fact that this was not gross misconduct, and that Dr Chhabra had accepted the allegations, the matter should have instead been dealt with under the Trust's Fair Blame policy, which the Trust had refused to do so when requested by Dr Chhabra. On this basis the Court granted the injunction.

The Court of Appeal

The Trust successfully appealed the decision arguing that, on the evidence, the case manager had not acted outside of the policy. In respect of the wording used in correspondence, the letter in question actually said "potentially very serious allegations of misconduct" and "considered as potential gross misconduct" and that these were not inconsistent with the findings of the report. In respect of the case manager's evidence, by "wilful" they had meant that the conduct was beyond mere 'ignorance, accident or compulsion', which again, was not inconsistent with the findings of the report.

The Court of Appeal stated that "the issue is a narrow one: should the Court intervene, at this stage, to prevent the disciplinary procedure adopted by the Trust from operating? Was the case manager in breach of contract, on receipt of the investigating officer's report, in deciding on 12 August 2011 to convene a disciplinary panel to consider allegations of breach of confidentiality by Dr Chhabra and to consider them as potential gross misconduct?".

The Court of Appeal took a wider view of the case manager's discretion when considering the findings of the report and "do not consider that the reference [in the policy] to the case investigator "establishing the facts" disqualified the case manger for taking action on a complaint made and supported by evidence reported, even if denied, and with no finding of fact by the investigator'. It held that findings of fact were ultimately for the disciplinary panel to make and that to confine such findings to those already made by the case investigator would 'diminish the contemplated role of the panel'. The Court of Appeal found that it was for the case manager to make a judgment whether the conduct reported was sufficiently serious to require a disciplinary panel hearing and concluded that the required threshold had been crossed.

Comment

The initial High Court decision was seen as a clear indicator that the Courts were more willing to intervene in disciplinary disputes and to grant injunctive relief to prevent disciplinary proceedings being pursued. The decision by the Court of Appeal indicates that, applications for an injunction will only succeed where there is clear evidence of a breach of contract. In Dr Chhabra's case, the allegations that she had breached patient confidentiality in a public place were serious and constituted potential gross misconduct. On the evidence available, the case manager had been justified in considering the allegation a potentially serious offence and in referring the matter to a disciplinary panel.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.