The appellant NHS Trust appealed against an injunction preventing it from referring to a disciplinary hearing the alleged breaches of confidentiality by the respondent employee, Dr Chhabra, a consultant psychiatrist. There had been a complaint about Dr Chhabra reading and dictating patient notes whilst on public transport. A civil servant overheard Dr Chhabra and complained to the Trust.

Dr Chhabra largely admitted the patient confidentiality breaches, apologised, and promised that there would be no repeats in future. Under the disciplinary procedure relating to conduct, an investigating officer was appointed, who upheld the confidentiality breaches. A case manager decided to refer charges of gross misconduct to a disciplinary panel, and notified Dr Chhabra of that decision, indicating that unrelated capability concerns would be referred to the National Clinical Assessment Service (NCAS). Dr Chhabra’s argued that the Trust had wrongly refused to implement the "fair blame" procedure to address breaches of patient confidentiality, which was an alternative method of discipline for situations where mistakes had been openly admitted by the perpetrator. She also alleged that it was inappropriate to undergo a disciplinary hearing while the NCAS inquiry was ongoing.

The Court of Appeal disagreed. There was a threshold to be crossed, in terms of seriousness, before a decision to refer to a panel could properly be taken, Makhdum v Norfolk and Suffolk NHS Foundation Trust [2012] EWHC 4015 (QB) applied. It was held that the Trust had been entitled to treat the admitted breaches of patient confidentiality as gross misconduct. Patient confidentiality was fundamental in the health service and had to be respected. While the fair blame procedure was undoubtedly encouraged, the documents repeatedly reserved a power to refer disciplinary matters to a conduct panel.

The 2005 Department of Health document expressly provided that the fair blame procedure was "not intended to weaken accountability or avoid disciplinary action where there was genuinely serious misconduct". Pill LJ, giving the lead judgement, stated, "I accept that there is a threshold to be crossed, in terms of seriousness, before a decision to refer to a panel can properly be taken. I do not consider that the introduction of words such as "gross" and "wilful" are beyond his powers, provided evidence in the investigator's report justifies their use... the decision was justified on the basis of the disciplinary procedures and the evidence. Patients' right to confidentiality is fundamental in the Health Service and must be respected by doctors and other staff. Dr Broughton [the Trust's Medical Director] was entitled to regard a breach or breaches of it in a public place by a consultant at Broadmoor as a potentially serious offence. The breaches alleged, as described in the case investigator's report, were such that a decision to convene a disciplinary panel was justified." 59 http://bit.ly/YhusU6