The High Court has held that the provisions of an NHS foundation Trust's local policy implementing the maintaining high professional standards (‘MHPS’) framework were incorporated into a consultant doctor's employment contract. The local policy did not provide any option for the medical director to delegate the role of case manager in cases involving consultants. Accordingly, the court held that the Trust had acted in breach of the consultant's contract by appointing its director of corporate affairs as case manager.
Facts
NHS Foundation Trust L (the Trust) employs Dr MN as a consultant in diabetes and general paediatrics. Dr MN is the subject of an ongoing investigation by the Trust, relating to his professional conduct.
In January 2024, when it commenced the investigation, the Trust stated that it would not be applying the local MHPS policy because the investigation concerned matters of trust and confidence, rather than conduct or performance. The Trust appointed Ms Y, its director of corporate affairs, as the case manager.
Dr MN challenged this, asserting that the matters under investigation meant the MHPS policy should apply. Following correspondence between the parties' solicitors, the Trust agreed to apply its MHPS policy. However, Ms Y continued to act as case manager.
Dr MN then brought a claim in the High Court, seeking a declaration that:
- The Trust's local MHPS policy was incorporated into his contract of employment
- The term of that policy specifying that the medical director would act as the case manager in cases involving consultants was incorporated into his contract
- The Trust had breached his contract by appointing Ms Y as the case manager
- The medical director would have to act as the case manager in Dr MN's case going forward, unless there were exceptional circumstances (such as conflict of interest or long-term ill-health)
The Trust agreed that it would comply with the declaration if the court found in favour of Dr MN on these points. There was therefore no need for Dr MN to apply for an injunction.
High Court decision
The court agreed with Dr MN that the Trust's local MHPS policy and the term of that policy which required the medical director to act as the case manager in cases involving consultants had been incorporated into his contract of employment. The question of who would perform the role of case manager for investigations was of real importance to the contractual relationship between employer and employee. Given the status of a consultant, it would be expected that key decisions should be taken by a very senior person within the Trust. Further, since investigations under the relevant part of the policy would usually involve matters of conduct and performance of a medical professional, it would be expected that the key decisions should be taken by a person with medical knowledge and experience.
The policy did not permit the medical director to delegate the function of case manager for investigations into a consultant. However, there was nothing to prevent the medical director from receiving assistance and advice from other personnel when carrying out the case manager role.
The court noted that there would be circumstances in which it would be inappropriate for the medical director to serve as the case manager - for example, if they had personal or direct knowledge of the key subject matter of the investigation, or if they are the partner, or a close relative of the consultant under investigation. There may also be circumstances, such as ill-health or other long-term absence, in which it would be impossible for the medical director to serve as the case manager.
By delegating the function of case manager to Ms Y, the Trust had acted in breach of Dr MN's contract. Going forward, the medical director would need to serve as the case manager unless exceptional circumstances such as those described above applied.
What does this mean for NHS employers?
It is important to keep in mind that this is a case about the interpretation of a particular Trust's local MHPS policy. It does not mean, more generally, that NHS employers cannot delegate the function of case manager, in cases involving consultants, to someone other than the medical director. Whether or not this is permissible will require analysis of relevant local policies.
It is also worth noting the court's commentary on the risks of mislabelling matters of concern as 'some other substantial reason' when the concerns themselves relate to conduct and/or capability. In the present case, the Trust asserted that this was not a matter of conduct and/or capability, but was instead an issue of 'trust and confidence' (i.e. 'some other substantial reason'). However, on a proper analysis, the court concluded that the allegations of trust and confidence did also amount to allegations that related to conduct and/or capability. The court went on to confirm that the situation would be different if the scope of the investigation was changed and it was just considering the reputational issues for the Trust. If so, then it would be open to the Trust to take Dr MN through a procedure in which the reputation issues could be determined as a matter of trust and confidence, provided no reliance was placed on allegations which went to Dr MN’s conduct and/or capability.
This is a helpful reminder to NHS employers about the importance of establishing the underlying reasons for the investigation at the outset and making sure that these reasons are then clearly articulated in the terms of reference.
