Facts
Dr Mezey was employed by South West London and St George’s Mental Health NHS Trust as a consultant forensic psychiatrist at Springfield Hospital. During a voluntary stay in the hospital’s secure mental health unit, one of her patients, JB, absconded and fatally stabbed a man. The trust set up an enquiry into Mezey’s care of JB.
At the time, the relevant procedure was “disciplinary procedures for hospital… staff HC(90)9” (HC) (which included separate procedures relating to conduct or competence). This was superseded by “maintaining high professional standards in the modern NHS” (MHPS) (which also contained distinct parts relating to conduct and capability).
Both HC and MHPS were contractual procedures. HC provided that if there was a finding of fault by an investigatory panel, the trust could decide what disciplinary action it was appropriate to take. Under MHPS, the decision to investigate could only be taken after consultation with a national body, the National Clinical Assessment Authority (NCAA), and for the capability procedure to be invoked, the practitioner must be shown to have lacked knowledge or ability, or to have rendered consistently poor performance.
Acting under HC, the trust convened an investigatory panel to conduct an inquiry into Mezey’s care of JB.
The panel reported in March 2008 and its principal conclusions were that Mezey’s alleged failings, including a decision to grant JB unescorted leave without assessing him, did not amount to serious professional incompetence. While Mezey was at fault in making a one-off mistake in clinical judgement, it was in accordance with a range of opinion that might be held by competent professionals in the field.
Notwithstanding these findings, the trust attempted to set up a disciplinary hearing under MHPS. Mezey sought an injunction prohibiting the trust from holding a disciplinary hearing.
Decision
The High Court granted an injunction restraining the trust from holding disciplinary proceedings. None of the sanctions contemplated by MHPS were appropriate, given the panel’s report, which generally endorsed Mezey’s competence.
Although, in principle, there might be an implied right to issue a reprimand, this did not apply in this case, as the fundamental competence of the employee was not an issue. The trust appealed.
The Court of Appeal agreed the High Court was right to grant an injunction preventing the disciplinary hearing from proceeding. To do so would be a breach of contract. The MHPS capability procedure applied where the doctor’s capability to practice was in question. This could not be said of Mezey, based on the panel’s report. And before the capability procedure could be invoked, the NCAA had to be consulted – but no such consultation had taken place.
Implications
In the past, all attempts to seek an injunction in relation to the breach of a contractual disciplinary procedure have failed. An employee’s remedy will usually be limited to loss of earnings for the period of time it would have taken to operate the procedure correctly.
The effect of the decision in this case was to permanently prevent the trust taking disciplinary action against Mezey in connection with the events in question. This case highlights the importance of following contractual procedures as injunctive relief may be open to the employee if they are breached.
The case is more likely to affect public sector employers as complex contractual disciplinary procedures are more common in the public sector. But private sector employers may also have contractual disciplinary procedures.
It is also more likely to have an impact on sectors and roles where a disciplinary sanction has such severe consequences for a career that damages alone would be unlikely to remedy the situation.
Helen Hall, employment partner, DLA Piper
