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Aldeen v Royal Devon & Exeter NHS Foundation Trust, County Court, 16 November 2012

11 February 2013
The issues

Stress – breach of contract – disciplinary proceedings – causation

The facts

In a consultant’s claim against his hospital Trust for damages for stress at work arising from the circumstances of his suspension from duty, the court had to consider not only whether the Trust had breached the duty of care owed to him in tort, but also the position in contract; specifically, whether the provisions of the Trust’s own disciplinary and capability procedures (as amended by / consistent with ‘Maintaining High Professional Standards in the Modern NHS [MHPS] framework’ (2003) pursuant to paragraph 189a of the standard Terms and Conditions of Service (2002)) were properly incorporated as express terms into the claimant’s contract of employment, or, alternatively, subject to an over-arching implied term that the trust, as employer, would act in good faith; and whether, on the latter analysis, there had been a failure to adhere to the procedure, which could amount to strong evidence of a material breach.

The claim was eventually put in the form of allegations that the Trust should have informed the claimant of the allegations being made against him by other members of staff in late 2005

The court dismissed the claim in negligence and, in respect of the contractual claim, the court followed the approach adopted by Simeon Maskrey QC, sitting as a deputy of the High Court, in Lakshmi v Mid Cheshire Hospitals NHS Trust [2008] IRLR 956, to the effect that a consultant’s contract should not be taken to include the terms of a Trust’s disciplinary procedure, but to include a term that it would, as employer, comply with the procedure unless there was good reason to do otherwise. If the employer departed from the procedure without good reason, it would be in breach of its obligation to act in good faith.

Accordingly it was held that the Trust was in breach neither of the implied term to act in good faith, nor (alternatively) any of the provisions of the disciplinary procedure that had (not) properly found their way into the contract.

The claimant worked, since 2003, as a consultant in Genito-Urinary Medicine (GUM) at the Royal Devon & Exeter NHS Foundation Trust. He was suspended from his duties on 18.01.06 as a result of the Trust acting on advice given by a panel of the RCP (ISR panel) who had been invited to investigate problems in the GUM department.

Following the suspension the claimant suffered an adjustment disorder which developed into a depressive disorder of at least moderate severity. It was agreed that his suspension (and the length of it) had, on the balance of probabilities, made a material contribution to the development of his adjustment disorder (and the depressive order which followed).

He remained suspended until August 2007 when, by agreement to enable him to begin a ‘Return to Work’ programme, his status was changed to absent through sickness. He began the necessary retraining in June 2008 and efforts were made at the Trust to facilitate his return to work. Nevertheless in September 2009, after successful completion of his retraining, the claimant resigned his post asserting that he was unable to return to work.

The claimant issued proceedings against the Trust for damages for alleged breaches both of their contractual duty towards him and in negligence, for breach of the common duty of care.

The claim was eventually put in the form of allegations that the Trust should have informed the claimant of the allegations being made against him by other members of staff in late 2005; conducted an investigation of them when matters first came to the attention of the joint medical director in September/October 2005; investigated more speedily than they in fact did; and that had the Trust done so he would not have suffered from the adjustment disorder.

The claimant relied, in his contractual claim, on the timescales envisaged by the MHPS framework procedure (2003) and alleged that any investigation should have been concluded within a longstop period of six months.

The claimant’s problems at work
The psychiatric experts (Dr Turner and Professor Fahy) disagreed about the significance of the claimant’s personality factors in the evolution of his problems at work. As regards to those problems, the court was called upon to consider:

  • whether the claimant was resented from the outset by other consultants in the GUM department and treated unkindly and inappropriately by them and other staff members
  • whether he had communication issues with others
  • whether there were clinical issues with the way the claimant dealt with his patients
  • whether or not, when Dr Claydon (another GUM consultant) raised with him in May 2004 alleged concerns about his methods of clinical practice, she did so in front of another without the claimant consent
  • the circumstances of the claimant’s falling out with nurse Michele Nichols
  • what was the claimant’s status as a locum consultant before his appointment by the Trust and whether or not he misrepresented his position on his CV
  • whether there was a conspiracy among staff to do the claimant down
  • whether, as he has alleged, the claimant was ‘ambushed’ when called by the ISR panel to answer allegations made by others.

Negligence
As regards to the claim in negligence the court had to consider whether, having regard to the steps which were reasonable in the circumstances (bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk (Sutherland v Hatton [2002] EWCA Civ 76 and Barber v Somerset County Council [2004] UKH 13)), the Trust was in breach of its duty to the claimant by not informing him of the allegations against him when they first arose and by not conducting its own investigation more speedily than it did.

In terms of causation, the court had to decide whether the claimant would have suffered adjustment disorder in any event had the investigations started sooner and concluded earlier than they in fact did.

Breach of Contract
As for contractual claim, an additional legal issue arose as regards to the approach to be followed in determining which parts, if any, of the Trust’s disciplinary procedure were legally binding.

The relevant case law provided two analytical routes in determining the (objectively evinced) intention of the parties; either for the incorporation of the procedure into the claimant’s employment contract save where and in so far as any terms of the procedure were too vague and/or discursive (see Hameed v Central Manchester University Hospitals NHS Foundation Trust [2010] EWHC (QB); and Hussain v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670 (QB)), or alternatively the use of an implied term that contract of employment should not be taken to include all the terms of the Trust’s disciplinary procedure, but should be taken to include a term that the employer would comply with the procedure unless there was a good reason to do otherwise e.g. where compliance would lead to absurd consequences (see Lakshmi v Mid Cheshire Hospitals NHS Trust [2008] IRLR 956).

Incorporation
The claimant contended that all the provisions of the MHPS procedure were fully incorporated as express terms into his contract of employment. The defendant submitted, by contrast, that where the provisions were too vague or discursive and/or where strict or literal compliance with any potential term would lead to an absurd result, such provisions were not properly incorporated into the contract as express terms (Hussain v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670 (QB) per Smith J at [152-9] and [168-9]; Hameed v Central Manchester University Hospitals NHS Foundation Trust [2010] EWHC (QB) per Swift J at [59-68] and [207]; Alexander v Standard Telephones and Cables Ltd (No.2) [1991] IRLR 286.). On the basis of the original pleadings the defendants conceded that the starting position was that the MHPS procedure was incorporated.

Implication
An alternative approach (which the judge was inclined to prefer, but was not put before him in the original pleadings until a late indication by him that he would invite the defendant to apply to re-amend its defence to include it), was based on the approach adopted by Simeon Maskrey QC, sitting as a deputy of the High Court, in Lakshmi v Mid Cheshire Hospitals NHS Trust [2008] IRLR 956, to the effect that a consultant’s contract should not be taken to include all the terms of a trust’s disciplinary procedure, but to include a term that the employer would comply with the terms of the procedure unless there was good reason to do otherwise. If the employer departed from the procedure without good reason, it would be in breach of its obligation to act in good faith.

The decision

The claimant’s problems at work
In relation to the claimant’s problems at work:

At paragraphs 179:
“Dr Aldeen was wholly unable to accept that he was at fault in any respect. I find, as Mr Audland submitted, that Dr Aldeen was an unreliable witness and an unreliable historian. His accounts of events surrounding his own medical history simply cannot be relied upon. I am wholly unpersuaded that Dr Aldeen was resented from the outset by other consultants or that he was treated unkindly or inappropriately. I reject his assertion that he was not properly inducted either into the hospital or the Department. The findings of both the ISR panel and Dr Ayres that he had communication problems were certainly justified by the evidence adduced before me. There were clinical issues in his methods of practice that needed to be addressed, even if at the end of his period of retraining at Bournemouth he was found to meet the standards of a NHS consultant in GUM HIV medicine… Regarding his falling out with CNS Nichols, I have already made the finding that he did have the trait of wagging his finger at others when engaged in an argument with them and this was, as I find, plainly a contributory factor in the breakdown of the working relationship between him and CNS Nichols. It was plainly an inappropriate form of gesture between working colleagues. His CV was not entirely accurate about his locum status, as noted by Dr Ayres in his report, even if that error was not the most serious of its kind. In my judgment Dr Ayres’ comment about an applicant for a consultant’s role needing to be completely accurate about such matters in his CV was entirely apposite. The entry in his application for the post at Thurrock regarding never having had mental health problems…was a blatant untruth. I have already noted that Mr Stewart has stated that Dr Aldeen was not advancing a claim based on conspiracy: any such claim was certainly not justified on the evidence adduced before me. It is not necessary for me to set out in detail Mr lengthy criticisms of the claimant about the way he gave evidence… I find that his assertion of ‘ambush’ put forward after the event as justification for the way he gave his account to the ISR panel is simply not correct and I reject it, accepting as I do the evidence given by Dr Scarpello…”

At paragraph 180:
“It is not necessary for me to make detailed findings about each of the individual witnesses: but those called on behalf of the Trust gave their evidence in a calm rational manner that was wholly convincing when dealing with the issue whether there was a concerted campaign against Dr Aldeen…”

At paragraph 181:
“With regard to the evidence of Dr Vaughn Pearce…his evidence goes to the heart of the way in which the claim is presented, which to a large extent does not depend on Dr Aldeen’s veracity, but is based on the assertion that the new procedure introduced in 2005 contained contractual requirements to which Dr Pearce, as case manager, failed to adhere. Dr Pearce was an impressive witness, clearly concerned about Dr Aldeen in 2005 when he first became aware of his problems. He sought to give him every opportunity of putting his version of events and was obviously concerned about the dispute with CNS Nichols and about his issues with Dr Claydon. Following Dr Claydon’s email of 9th September 2005 he now accepted that it might have been preferable if he had discussed the matters with Dr Aldeen direct at the time, but he explained that he had not do so in the light of what happened following the April 2005 meeting which had resulted in his referring Dr Aldeen to OH. The arrangements for the ISR had by then been made and, in my judgment, Dr Pearce took the perfectly rational decision of allowing them to report on the GUM Department as a whole in order that he might be fully informed about the Department. Once they had reported and had given their advice about what should happen to Dr Aldeen, Dr Pearce was again immediately concerned for his welfare, referring him to OH and also seeking to put in place arrangements for his retraining and re-assessment”.

Negligence
As for the claim in negligence, it was held, following the principles as set out in Sutherland v Hatton [2002] EWCA Civ 76 and approved in Barber v Somerset County Council [2004] UKH 13, that:

  • the Trust was not in breach of its duty by not starting the procedure in September / October 2005 and ensuring it had completed its work by the time the ISR began their inquiry
  • the Trust was not in breach of its duty by acting on the advice of the ISR panel that the claimant be suspended with immediate effect (indeed it would have been in breach of its duty to others, in particular to patients and potential patients, had it done otherwise)
  • the Trust was not in breach of its duty because it failed to set up an internal inquiry and get a decision more speedily than it did; given the size and complexities of the investigation process it could not realistically have been carried out more quickly
  • even if it had been possible to have had the conclusions of that inquiry at an earlier date it would not have made a significant difference to the claimant’s mental state; the fact of his inevitable exclusion was the principal cause of his mental condition
  • equally once the Trust had those conclusions it had no option but to continue the exclusion until the satisfactory completion of the retraining programme and the claimant’s re-assessment. The Trust was not responsible for the delay; if anything else the claimant’s own state of health was the cause for the delay.

Breach of Contract
As regards to the contractual claim the judge preferred the analysis that the relevant term of the contract was the obligation on the employer to act in good faith (as opposed to an interpretation that simply incorporated the whole of the MHPS procedure into the contract, subject to the proviso that usual rules of construction would nevertheless apply).

Such a term was implied in order to give the contract business efficacy and provided a better fit with regards to the actual wording of the claimant’s written employment contract.

Failure to adhere to the provisions of the procedure might amount to strong evidence of a breach of the said implied term.

In the instant case, the Trust had good reason not to comply with the procedure, especially where it was also apparent that strict adherence to the procedure would lead to absurd consequences.

In terms of the interpretation of, and adherence to, the procedure the judge held:

(a) If strict adherence to the procedure meant that the medical director could not fulfil his role then something serious had gone wrong. A term which required the medical director to have initiated an investigation notwithstanding his view that in his judgment there was insufficient evidence to have substantiated the concern did not make business sense;

(b) Similarly a term which required him to have taken steps that in his judgment were likely to have a serious effect on Dr Aldeen’s health when he had not been able to investigate the background is one that on the face of it is absurd. I would therefore if necessary find that those parts of the procedure relied on by Mr Stewart which had such an effect were not incorporated into the contract. Such an analysis is in accord with the judgment of Smith J in Hussain v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670 (QB);

(c) There was no breach of the obligation to hold a case conference prior to the claimant’s exclusion (what constitutes a case conference is not defined in the procedure and the fact that any meeting was informal does not prevent it being a case conference);

(d) The alleged failure to notify NCAS before the exclusion fell foul of the principle that where implementation could lead to potentially absurd results (i.e. where immediate exclusion was recommended but delays were inevitable pending notification to NCAS and then awaiting their response) there was no contractual requirement to comply with the procedure;

(e) For the same reason, there was good reason not to comply with the procedure and cause a delay in giving effect to the ISR advice for immediate exclusion and the obligation to act in good faith was met by the immediate notification of the exclusion to NCAS;

(f) Alternatives to exclusion were considered but no-one was able to identify any because they were not practical and, in any event, the claimant was unlikely to have acted upon any such offer;

(g) The Trust acted in good faith in so far as it did review the claimant’s exclusion every four weeks;

(h) It was not appropriate for the exclusion to be lifted before the internal and / or NCAS investigations had been completed and until the claimant’s retraining and reassessment had properly concluded;

(i) The Trust was not responsible for the delays in lifting the exclusion before the six months envisaged in the MHPS procedure, they acted in good faith, and it would have been absurd for the contract to have provided otherwise;

(j) On the evidence of Professor Fahy, any breach of contract by the trust would have made no difference to the eventual outcome, which would have involved exclusion and the need for retraining in any event;

(k) The findings both of the ISR panel and the internal investigation by Dr Ayres’ team that there were issues relating to the claimant’s clinical methods that needed to be addressed were fully justified.

Comments

My thanks to William Audland of Counsel, 12 Kings Bench Walk, who represented the defendant and prepared this note.

For further information please email William Audland on audland@12kbw.co.uk or Mark Fowles on mark.fowles@brownejacobson.com

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