Law November 22, 2018
Employment: Doctors restrictions and exclusions under MHPS

By Daniel Male - Accountable Care Journal

High Court intervenes and grants injunctions in two separate cases involving cardiologists where the employing Trust in one case had imposed continuing restrictions on practice following an investigation and in the other case, fully excluded a Professor of Cardiac Surgery, writes Jacqui Atkinson, Partner at Browne Jacobson.

Al-Obaidi v Frimley Health NHS Foundation Trust 2018

The Doctor, a consultant cardiologist, was excluded from work in January 2018 while an investigation into his conduct was undertaken. Allegations had been made that he was:

  • Discouraging colleagues from completing serious incident reports;
  • failing to promote openness at mortality and morbidity meetings;
  • fostering an “us/them” attitude regarding another hospital;
  • engaging in intimidating behaviour with colleagues; and
  • providing a deliberately misleading account of patient management by another doctor.

The Trust justified the exclusion on the basis that they were concerned the Claimant would interfere with witnesses during the investigation. The original exclusion meant that the Claimant could not enter any clinical site of the Trust or see patients/follow up on existing clinical commitments.

In late April 2018, following representations from the Doctor the Trust lifted the full exclusion and allowed the Doctor to return to work in a different hospital, two days a week but under supervision and with restrictions on his practice. However, he remained excluded from his main workplace. The investigator had dismissed some of the more serious allegations against the Claimant.

The Trust held a disciplinary hearing follow which it wished to further investigate a finding of the disciplinary panel which may have indicated the Claimant had been misleading in a statement provided as part of the disciplinary process. The Trust declined to allow the Claimant to return to full-time work at his usual place of work until it had further investigated that disciplinary finding.

The Claimant applied for an injunction requiring the Trust to lift the exclusion and allow him to return to work full-time at the hospital.

The decision 

The High Court held that after his partial return to work, the Claimant could no longer properly be described as being excluded. It found that the Trust had behaved “irrationally” as its own investigation had shown that the Claimant had not put patients at risk and was not guilty of either gross misconduct or misconduct stating: 

“The effect of the restrictions on the Claimant’s practice should not be underestimated as they constituted not just a significant modification of the work of a cardiologist in the position of the Claimant but, for someone like the Claimant, who had practiced at such a high level for so long, they were demeaning, humiliating, and had an adverse effect on his mental well-being and his approach to his work. ” In this instance, the prospect that the Claimant might interfere with the further investigation process was “fanciful” and without evidence. The High Court granted an interim injunction to require the Trust to lift the Doctor’s exclusion.

Professor Marian Jahangiri v St George’s Hospital NHS Trust 2018

The High Court granted an injunction allowing the Professor of cardiac surgery to return to work where her clinical abilities were not in question. Her exclusion related to her contravening an instruction that witnesses should not contact witnesses in an investigatory process. The High Court held that "overall the decision to exclude was irrational."

What to take away

  • Injunctions remain a risk for NHS Trusts and can also be sought where restrictions on practice have been imposed. They are not confined to full exclusions. Exclusions, full or partial, should only be used in the "most serious and extreme cases."
  • In our experience, courts will look carefully at a decision to wholly exclude a Doctor, and will, as required by MHPS, require employers to carefully consider restrictions to practice as an alternative. A Court will be understandably reluctant to intervene and require a practitioner to return to clinical duties where there are clinical concerns about a practitioner.
  • Case Managers have the responsibility of considering investigatory reports and reaching decisions after an MHPS investigation. They are advised to carefully review the allegations and findings against the original exclusion/restriction decisions and assess whether it is necessary for the exclusion/restrictions to remain in place following the investigation.
  • The two High Court decisions taken together demonstrate that where a Doctor’s clinical ability is not in question, the High Court will take a very close look at the consequences of exclusion or restriction decisions upon the individual Doctor and other parties. In Al-Obeidi’s case the High Court granted an injunction finding that the restrictions were not justified and that their effect was demeaning, humiliating and affected the Doctor’s emotional well-being. In Jahangiri, the High Court granted an injunction where the consequences of exclusion reached far beyond the Doctor (i.e. impacted on patients whose operations would be cancelled) and were held to be “irrational”.

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