The Claimant was employed by the Trust as a consultant psychiatrist. She was subject to disciplinary proceedings following an incident whereby a prisoner committed suicide. The investigation report set out various allegations against her, in particular relating to failures in record-keeping and documentation, alongside failures to meet the standards of good medical practice. The allegations made were given as examples of gross misconduct in the Trust’s Disciplinary Policy and Procedure.

The claimant argued there was no basis for a charge of gross misconduct; a charge which, if established, could potentially lead to the termination of her contract and serious ramifications for her, including her prospects of obtaining subsequent employment.

An interlocutory injunction was granted which restrained the Trust from proceeding with the disciplinary hearing. The High Court had to consider whether the injunction ought to be made permanent. It was not concerned with the question of whether or not Dr. Ardron was guilty of gross misconduct or whether dismissal was an appropriate sanction in the event that gross misconduct were to be established, but rather it was tasked with determining whether there was a serious issue to be tried as to whether the Trust was acting in breach of the applicant’s contract of employment by pursuing a gross misconduct case at all.

The investigation was carried out under the Trust's procedures for investigating allegations or concerns about a practitioner. These procedures, which were contained in the Trust's policy entitled "Managing Concerns about Medical Staff Policy" ("MCMSP"), implemented the requirements of Part I of "Maintaining High Professional Standards in the Modern NHS" ("MHPS") which came into effect in 2005.

In the course of the judgment the judge helpfully summarises the relevant legal principles relating to investigations under MHPS. Clause 1.2 contains a definition of gross misconduct, stating gross misconduct requires either gross negligence or wilful default. The claimant argued, based on the definition, that each allegation should be considered in isolation. The High Court disagreed, stating the allegations should be looked at on a cumulative basis for the purpose of deciding whether there was a sufficient case of gross negligence.

In doing so, it found that there was sufficient case to categorise this as gross misconduct and a potential breach in the duty of trust and confidence.

“It is in my view wrong to see these various alleged failings as being unrelated to one another. They were in my view inter-related and it is appropriate to look at them cumulatively when considering whether the Trust has a sufficient case.”

Mr Justice Jacobs had “considerable doubt” as to the strength of the Trust's case but could not rule out the possibility that a panel would find that the claimant was wilfully in breach of her professional code of conduct. For those reasons the injunction previously granted would not continue.
https://www.bailii.org/ew/cases/EWHC/QB/2018/3157.html