House of Lords
|Session 2002 - 03
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Skidmore (Respondent) v. Dartford & Gravesham NHS Trust (Appellants)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Dartford & Gravesham NHS Trust (Appellants)
THURSDAY 22 MAY 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Scott of Foscote
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Skidmore (Respondent) v. Dartford and Gravesham NHS Trust (Appellants)
 UKHL 27
LORD BINGHAM OF CORNHILL
1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Steyn. I am in full agreement with it and I would accordingly dismiss the appeal and make the order which he proposes.
I. THE QUESTIONS.
2. This appeal raises important issues in respect of hospital disciplinary proceedings. The context is a contractual disciplinary code. Specifically, the issues arise because of the incorporation of Department of Health Circular HC (90)9 dated March 1990 in most hospital doctors' contracts. This Circular governed the hospital sector of the National Health Service before the creation of autonomous Trusts under the National Health Service and Community Care Act 1990. It is still in use by autonomous NHS Trusts. The disciplinary code provides for a difference in procedure depending on whether the case involves allegations of "professional conduct" or "personal conduct." The former is governed by a judicialised procedure under Circular HC 90(9). The latter is governed by less formal disciplinary procedures without, amongst other things, the right of legal representation. Inevitably this relatively complex structure gives rise to issues of demarcation concerning the category in which a particular case falls. Not surprisingly, this has given rise to legal problems and criticism: compare Raymond, "The Employment Rights of the NHS Hospital Doctor" in "Doctors, Patients and the Law", Dyer, ed (1992), at p 194; the Department of Health Consultation Paper dated November 1999 entitled "Supporting doctors, protecting patients"; and the NHS Executive's Summary of the responses to the Consultation Paper, at section 4. There has been a difference of judicial view reflected in a number of decisions to which it will be necessary to turn. Two questions dominate the debate. They are:(1)
Both these questions arise in the present appeal.
II. THE OPERATION AND THE AFTERMATH.
3. In April 1997 Mr Skidmore was a consultant surgeon at the Joyce Green Hospital. On 3 April 1997 Mr Skidmore operated on Mrs A for the removal of a gall bladder. The method was keyhole surgery. During the surgical procedure the patient's left iliac artery was punctured by a sharp three pronged instrument. There was a large loss of blood. The operation had to be converted to open surgery. A surgeon, who had been operating in an adjacent theatre, was called to assist. There was a short period of cardio-pulmonary resuscitation. The patient had eight units of blood transfused during the operation and two further units transfused post operatively. On any view it was a serious episode with potential life threatening implications. But the operation was eventually completed successfully and Mrs A made a complete recovery.
4. Mrs A's husband sought an explanation from the patient relations manager who in turn asked for Mr Skidmore's comments. In two meetings Mr Skidmore gave his explanation first to Mrs A and then to Mrs A and her husband. The thrust of his explanation was to blame the episode on a faulty instrument and to suggest that the blood loss was normal, viz only two units, and that Mrs A had not arrested or required resuscitation. This version of events was in conflict with the contemporaneous notes of the operation made by the anaesthetist. In a written response Mr Skidmore expanded on his oral explanations.
III. THE DISCIPLINARY PROCEEDINGS.
5. Following further exchanges and investigations the Authority made a charge of personal misconduct against Mr Skidmore. The outline statement alleged that Mr Skidmore
The Authority had decided that this charge was properly a charge in respect of personal conduct within the meaning of the disciplinary code.
6. On 27 and 28 October 1997 the hearing took place before the Trust's Chief Executive. Dr Barker of the Medical Protection Society represented Mr Skidmore and Dr Key represented the management. The question whether the proceedings were properly constituted or whether the case should have been dealt with under the Circular HC (90)9 procedure governing professional conduct was argued as a preliminary point. The Chief Executive decided that the allegations were of personal and not professional misconduct and that as a result she had jurisdiction to deal with the complaint. Oral evidence was then heard from witnesses on behalf of both parties. On 20 November 1997 the Chief Executive delivered her reasoned decision. She concluded that Mr Skidmore had falsely told Mr and Mrs A that 2 units had been transfused in the theatre when in truth 8 units had been transfused and that he had stated as a fact that the instrument was faulty and had been returned to the manufacturer for inspection when this was clearly not the case. She concluded that Mr Skidmore had lied and had continued to be untruthful when he appeared before her. She decided that he should be dismissed with immediate effect.
7. Mr Skidmore appealed to an appeal panel of the Trust Board. On 2 December 1997 an appeal panel consisting of the Trust chairman, the finance director, and three non-executive directors heard the appeal. The question of the correct procedure was again dealt with as a preliminary point. After hearing submissions the panel decided that the allegations were properly dealt with under the internal disciplinary procedures. The hearing continued. The Chief Executive gave evidence before the panel and was cross-examined by Mr Skidmore's representative, Dr Panting. The panel also heard evidence from Mr Skidmore, 2 witnesses who had given evidence below and also a local general practitioner who had not. On 18 December 1997 the panel delivered its decision. It found that Mr Skidmore's conduct constituted gross misconduct and that summary dismissal had been appropriate.
8. Annex C of HC(90)9 requires the Secretary of State on application to refer to a panel the question whether an applicant's appointment is being terminated on the sole ground of personal misconduct. Mr Skidmore appealed under Annex C. By letter dated 11 June 1998 the Secretary of State rejected the appeal on the basis that he had no jurisdiction in accordance with the decision of the Court of Appeal in R v Secretary of State for Health, Ex p Guirguis  IRLR 30, as Mr Skidmore had been dismissed without notice.
IV. THE PROCEEDINGS ALLEGING UNFAIR DISMISSAL.
9. Mr Skidmore than applied to an industrial tribunal (now an employment tribunal) alleging unfair dismissal. The grounds of his application were twofold, viz that the wrong procedures had been adopted and that the complaint was without substance. On 4 August 1999 the tribunal dismissed the application by a majority.
10. Mr Skidmore appealed to the Employment Appeal Tribunal on a number of grounds. One ground was that the wrong procedure had been adopted. On 22 February 2001 the EAT dismissed the appeal. Relying on decisions of Lightman J in Kramer v South Bedfordshire Community Health Care Trust  ICR 1066 and Chatterjee v City and Hackney Community Services NHS Trust (1998) 49 BMLR 55, the EAT took the view that, absent bad faith or Wednesbury unreasonableness, the employer's decision on categorisation was final. In any event, the EAT concluded that the case against Mr Skidmore was essentially of a personal nature.
V. THE COURT OF APPEAL DECISION.
11. In an unreserved judgment, given on 15 January 2002 by Keene LJ with the agreement of Aldous LJ and Sir Christopher Slade, the Court of Appeal unanimously allowed Mr Skidmore's appeal:  ICR 403. Following a recent decision of the Court of Appeal in Saeed v Royal Wolverhampton Hospitals NHS Trust  ICR 903, Keene LJ held that the decision of the employer must comply with the terms of the contract. Keene LJ further held that on the facts the decision of the employer on categorisation was wrong: the case was one involving professional conduct. The appeal before the House challenges the decision of the Court of Appeal on both points. Before directly addressing these issues it is necessary to set out critical features of Circular HC (90)9 and to explain the conflict of judicial decisions.
VI. CIRCULAR HC 90(9).
12. The Circular is a lengthy document. For present purposes it is only necessary to set out a few extracts from it. The Circular draws a distinction between "personal conduct", "professional conduct" and "professional competence". Those categories of allegations of misconduct are defined in paragraph 3 of the Circular as follows:
The Circular then provides, in Annex B:
In cases involving personal conduct Annex B provides that "the position of a doctor or dentist is no different from that of other health service staff". With regard to cases involving professional misconduct and professional incompetence, Annex B of the Circular provides in para 8 that the panel (consisting usually of three members) should have a legally qualified chairman. Moreover in such cases Annex B of the Circular provides, inter alia, in para 12 for the following further procedural rights:
By contrast the internal procedure applicable to cases of personal conduct contains no such safeguards and is generally more informal.
13. Since the hearing of the present case in the Court of Appeal, counsel for Mr Skidmore has unearthed the genesis of Circular HC (90)9. While the distinction between professional and personal conduct goes back to 1956, the disciplinary arrangements presently reflected in HC (90)9 were the result of the deliberations of a Joint Working Party which published a Report in August 1988 entitled "Disciplinary Procedures for Hospital and Community Doctors and Dentists". The Joint Working Party was made up of representatives of the Health Departments, the NHS and the professions. It was set up to "review disciplinary procedures for hospital and community doctors and dentists" and specifically to "consider the scope, operation and effectiveness of the disciplinary procedures" in Circular HM(61)112. Paragraph 3 of the Report reads:
The recommendations of the Working Party were accepted and gave rise to HC(90)9 which was published by the Department of Health in March 1990. The terms contained in HC (90)9 were imposed upon doctors by regulation 3 of the National Health Service (Remuneration and Conditions of Service) Regulations 1991 (SI 1991/ 481). It is now part of the employment contract of Mr Skidmore and of the employment contracts of almost all NHS hospital doctors. It will be necessary to return to the significance of the Report for the purpose of HC90(9).
VII. THE CASE LAW.
14. Concentrating at this stage on the issue of whose decision determines the categorisation of a case, I now turn to the directly relevant case law as matters stood at the time of the Court of Appeal judgment. In a carefully reasoned judgment in Kramer Lightman J approached the problem as follows ( ICR 1066, 1071D-F):
In all material respects this decision was made on the same contractual terms as are to be found in the contract before the House. In the Chatterjee case (1998) 49 BMLR 55 Lightman J followed his earlier decision in Kramer. In Bhanot v South West London & St George's Mental Hospital NHS Trust  Lloyd's Rep Med 324 Bell J disagreed. He observed, at p 328:
At first instance in Saeed v Royal Wolverhampton Hospitals NHS Trust  Lloyd's Rep Med 331, Gage J preferred the approach of Lightman J. On the facts Gage J found that the allegation of indecent assault during a medical examination against a senior house officer was one of personal conduct. The Court of Appeal agreed with Gage J on the latter point and dismissed the appeal. Hale LJ (with whom Dame Elizabeth Butler- Sloss P and Potter LJ agreed) defined the first issue as follows (907D):
Hale LJ commenced her judgment by saying (907E):
She then discussed the conflicting dicta at first instance and expressed her preference for the general approach of Bell J. She concluded, at p 908 D-F, para17:
Taking the view that an indecent assault by a doctor during an examination of a patient cannot amount to a charge of professional misconduct she held that the appeal should be dismissed.VIII. ISSUE NO. 1: WHO DECIDES?
15. Counsel for the Authority invited the House to adopt the approach of Lightman J on the first issue. For reasons which can be explained shortly it is not possible to adopt this course. It is common ground, and rightly so, that no public law issues are involved and that the questions before the House must be resolved within the framework of the contract between Mr Skidmore and the Authority. That is so despite the fact that a public body is involved. Prima facie therefore the position is as follows. The Authority is entitled to decide what disciplinary route should be followed. That decision must, however, comply with the terms of the contract. If a non-conforming decision is taken and acted upon, there is a breach of contract resulting in the usual remedies. The only escape from this position would be if it could be shown that the parties agreed upon wording in their contract making it clear that the employer's decision would be final thereby excluding the role of the court except, of course, in cases of bad faith or possibly the absence of reasonable grounds for the decision. There is no such provision in the present contract. It does, of course, provide that "It is for the authority to decide under which category a case falls". This provision merely states the obvious: the Authority must take the initial decision to commence the appropriate disciplinary procedure. It is, however, quite insufficient to exclude the normal consequences of a failure to follow the agreed contractual procedures. If there has been a breach by the Authority in adopting the wrong procedure, Mr Skidmore is entitled to appropriate relief. So far I am in general agreement with the approach of the Court of Appeal in Saeed.
16. There is, however, one aspect of the analysis of the Court of Appeal which I cannot accept. Hale LJ observed that the issue has been clouded by the introduction of public law concepts into an ordinary contractual situation. That is not how Lightman J approached the matter in Kramer and Chatterjee. On the contrary, he expressly based his reasoning on an implied term of the contract of employment. He said that there "can otherwise be no reason to include in the contract this provision that categorisation is a matter for the trust". The likelihood is that the judge had in mind decided cases where the court interpreted a contractual term dependent on the exercise of the will of one party as by implication restricted to a decision taken in good faith and on reasonable grounds, e.g. a clause entrusting a decision as to the adequacy of performance to the absolute discretion of one party. The foundation of such an implication is to satisfy the reasonable expectations of the parties. Some examples of such cases are to be found in the judgment of McNair J in Niarchos (London) Ltd v Shell Tankers Ltd  2 Lloyd's Rep 496, at 507-509; see also Lewison, The Interpretation of Contracts, 2nd ed, 1997, para 12.03, at pp 347-350. There are other recent examples of special provisions: West of England Shipowners Mutual Insurance Association (Luxembourg) v Cristal Ltd (The Glacier Bay)  1 Lloyd's Rep 370 ('the sole judge') and Brown (RE) v GIO Insurance Ltd  Lloyd's Rep IR 201 ('the sole judge'). The mistake of the judge in Kramer and Chatterjee was to place a weight upon a contractual provision which it was incapable of bearing. There was no agreement to entrust the issue to the final decision of the Authority. There was no warrant for the term the judge implied. The contract was entirely workable on the basis that the Authority had to decide on categorisation but it had to do so in accordance with the contract.
17. I would reject the challenge of the Authority to the decision of the Court of Appeal on the first point.
IX. ISSUE NO. 2: WHICH CATEGORY?
18. It is now necessary to consider how the case against Mr Skidmore should be categorised. The starting point must be the proper interpretation of the definitions contained in the disciplinary code. It seems right to treat the definitions of professional conduct ("behaviour of practitioners arising from the exercise of medical or dental skills") and professional competence ("adequacy of performance of practitioners related to the exercise of their medical or dental skills and professional judgment") as the primary categories. Personal conduct is the residual category consisting of "behaviour . . . due to factors other than those associated with the exercise of medical or dental skills"(Emphasis added). If a case is properly to be categorised as involving professional conduct or competence, the judicialised disciplinary route under HC(90)9 is obligatory. That is so even if the case could also be said to amount to personal misconduct.
19. For present purposes it is unnecessary to examine the distinction between professional conduct and professional competence. It is common ground that professional competence is not a relevant category. The line drawn between professional conduct and personal conduct is conduct "arising from the exercise of medical or dental skills" and "other" conduct. How this distinction should in practice be applied must now be considered. The structure of the disciplinary code set out in HC (90)9 is a classic case requiring a broad and purposive interpretation enabling sensible procedural decisions to be taken. It would, for example, be surprising if a case where a doctor embarked on an intimate medical examination of a woman, which he knew to be wholly unnecessary, necessarily fell outside the scope of what may constitute professional misconduct. After all, in such a case, the doctor is using his position as a hospital doctor to perpetrate an act of serious professional misconduct. I cannot, therefore, agree with the ruling in Saeed (para 24, at p 910D) that an indecent assault committed by a doctor during a medical examination cannot constitute professional misconduct within the code. It is a case of a doctor misusing his ostensible medical skills for improper purposes. In my view it falls within the scope of professional misconduct within the definition. Relying on the text of HC (90)9 I take the view that a purposive construction, and common sense considerations, point towards a broad interpretation of professional conduct.
20. Since the decision in Saeed and the hearing in the Court of Appeal there has become available the Joint Working Party Report setting out the reasons for the line drawn between professional and personal misconduct. The emphasis is on the serious consequences for a doctor of an adverse decision, making a doctor dismissed on professional grounds virtually unemployable. In my view this background material reinforces a broad interpretation of HC (90)9 notably in respect of what may amount to professional misconduct. It supports the interpretation that when in a doctor/patient relationship a doctor commits deliberate misconduct it may come within the category of professional conduct.
21. Keene LJ concluded that the allegations against Mr Skidmore fell within the category of professional conduct and that was the appropriate machinery to be used. He explained, at pp 410-411:
34. Thirdly, it is to my mind relevant that the allegations against the applicant raised issues which, at least to a degree, needed medical experience or expertise for their determination. I have in mind in particular the applicant's attempted explanation of how he confused the number of units of blood transfused. Despite Mr Douglas's attempts to persuade us to the contrary, it seems to me that some medical experience was required to give proper consideration to that proffered explanation. The internal disciplinary procedure does not necessarily involve anyone with medical experience determining such an issue. The independent procedure under the Circular does. That too points towards the proper categorisation of the allegations here."
This reasoning is irresistible.