Ardron v Sussex Partnership NHS Foundation Trust, Court of Appeal - Queen's Bench Division, November 20, 2018, [2018] EWHC 3157 (QB)

Resolution Date:November 20, 2018
Issuing Organization:Queen's Bench Division
Actores:Ardron v Sussex Partnership NHS Foundation Trust
 
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Case No: HQ18X01574

Neutral Citation Number: [2018] EWHC 3157 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 20/11/2018

Before :

MR JUSTICE JACOBS

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Between :

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Jeremy Hyam QC (instructed by RadcliffesLeBrasseur) for the Claimant

Jeffery Jupp (instructed by Brachers) for the Defendant

Hearing dates: 5th, 6th and 7th November 2018

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JudgmentMr Justice Jacobs:

A: Introduction

  1. The Claimant, Dr. Caroline Ardron (``Dr. Ardron''), is a very experienced consultant psychiatrist employed by the Defendant (``the Trust''). The Trust considers it appropriate for Dr. Ardron to face disciplinary proceedings for alleged gross misconduct relating to her work at HMP Lewes in late 2015 and early 2016. At that time, Dr. Ardron was the responsible clinician of a young prisoner known as JO, who committed suicide by hanging himself on 12 February 2016. The proposed disciplinary proceedings relate, almost exclusively, to Dr. Ardron's care of JO including her record-keeping in that respect.

  2. Dr. Ardron does not suggest that disciplinary proceedings are inappropriate as a matter of principle, or that there is no case of misconduct that could be brought against her. However, she contends that there is 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. On 18 June 2018, an interlocutory injunction was granted by Mr. Pushpinder Saini QC, sitting as a Deputy Judge of the High Court, which restrained the Trust from proceeding until further order with a disciplinary hearing into gross misconduct.

  3. The question for resolution now is whether that injunction should be made permanent. That issue depends upon whether Dr. Ardron can prove that the Trust will breach her contract of employment by holding the proposed disciplinary hearing on a charge of gross misconduct. The Trust's intention to proceed to such a hearing was communicated in its letter to Dr. Ardron dated 20 March 2018, and the issue is therefore whether the Trust should be prevented from operating on the basis of that letter. The resolution of that issue depends principally upon the question of whether the facts found in an investigation into Dr. Ardron's conduct could, taken at their highest, amount to gross misconduct.

  4. Most of the trial was spent on submissions of counsel based on the documentary record, and in particular as to the findings in the very detailed 72 page report of Dr. Wijetunge. That investigation was carried out by consultant psychiatrist Dr. Aruna Wijetunge (``Dr. Wijetunge''). That report contained a very large number of appendices, to which reference was also made in the parties' submissions. Dr. Wijetunge had been appointed as ``Case Investigator/ Investigating Officer'' pursuant to 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.

  5. Two witnesses gave evidence at trial: Dr. Ardron and, on behalf of the Trust, Dr. Duncan Angus. Both witnesses had previously made a number of witness statements. Dr. Angus was a consultant psychiatrist who, in addition to his clinical duties, was Deputy Medical Director of the Trust. Importantly, he was also (in accordance with MHPS) the ``Case Manager'' who was responsible for appointing Dr. Wijetunge as ``Case Investigator''. Dr. Angus was therefore responsible for the decision that Dr. Ardron should face a case of gross misconduct. He was also responsible for a document entitled ``Management Statement of Case'' dated 19 April 2018 (``MSC''), which set out the detail of the case which the Trust wished to advance against Dr. Ardron.

  6. It is important to emphasise at the outset that the trial was not concerned with the question of whether or not Dr. Ardron was guilty of gross misconduct, still less whether dismissal was an appropriate sanction in the event that gross misconduct were to be established. Accordingly, nothing that is contained in this judgment should be regarded as giving any indication or steer to a disciplinary panel as to how those issues should be resolved. Rather, the essential issue is whether it is appropriate for the Trust to make that case against Dr. Ardron at all, and whether it is a breach of contract to do so. In answering that question, it is necessary to consider whether the facts found in Dr. Wijetunge's report and its Appendices can properly found a case of gross misconduct, and to that extent only it is necessary for me to express a view on the facts as they emerge from that report and appendices.

  7. Since the trial was not concerned with an investigation of Dr. Ardron's conduct, neither her written nor oral evidence (which was relatively brief) was central to the issues to be resolved, and indeed it was not referred to in any detail during either counsel's closing argument.

  8. The evidence of Dr. Angus was more pertinent to the issues at trial, and in particular the allegation by Dr. Ardron that Dr. Angus had failed to ask the right questions (i.e. he had `misdirected' himself) when deciding whether or not there was a case of gross misconduct. I was left in no doubt that Dr. Angus had taken a very careful and conscientious approach to the question of whether Dr. Ardron should face that case, and that it was not a decision that he had made lightly. He had taken great care in the drafting of the original Terms of Reference which formed the basis of Dr. Wijetunge's remit. He had then spent a very considerable amount of time in reading and re-reading the report and appendices. I was also left in no doubt that he considered, rightly or wrongly, that there had been very serious misconduct by Dr. Ardron over a period of some months, with repeated failures in respect of different aspects of the care relating to JO. His genuine view was (again, rightly or wrongly) that what had occurred and went beyond a case of (as he put it in his second witness statement) an ``isolated incident or a small number of incidents of negligence'' which ``would not have led to a case to answer for gross misconduct''. I accept his evidence that this was his approach, and I address below the Claimant's submission that this was not reflected in the contemporaneous documents.

    B: The Factual Background

    B1: The contract between Dr. Ardron and the Trust

  9. Dr. Ardron was a consultant psychiatrist employed full-time by the Trust since 2010. There was evidence before me that she has had an unblemished career and is and was highly regarded by her colleagues. In the autumn of 2015 she was employed for half of her time at HMP Lewes as resident psychiatrist, and she had an office there. That prison held both remand and short-sentenced prisoners. Her timetable involved her attending HMP Lewes on Wednesdays, when she would attend the Healthcare Wing at the prison, and Thursdays.

  10. Dr Ardron's job description required her to work within a multi-disciplinary team at HMP Lewes to provide ``high quality specialist assessment, treatment and care to prisoners within HMP Lewes ...''. Her contract was subject to the standard terms for NHS Consultants, and these required her to maintain professional standards and to keep proper records and reports incidental to their practice. It also incorporated the Trust's disciplinary policy and procedures. Clause 1.2 contained a definition of Gross Misconduct:

    Gross Misconduct

    Gross Misconduct is misconduct of such a nature that the Trust is justified in dismissing the member of staff who commits the offence. Such offences may warrant summary dismissal without any prior warnings. (See Appendix 3)

  11. Appendix 3 repeated this definition, and then contained a list of behaviours/ actions which the Trust considered ``as gross misconduct''. This included matters such as assault, corruption, and fraud as well as:

    · Breach of trust and confidence - conduct which amounts to a breach of the implied contractual term of trust and confidence.

    · Negligence - any action or failure to act which could result in serious loss, damage or injury. Includes failure to give appropriate care and protection to service users.

    · Wilful breaches of professional codes of conduct.

  12. The identification of behaviours/ actions in Appendix 3 relating to ``Gross Misconduct'' was separate from a list of behaviours/ actions which were simply ``Misconduct'' and were listed in Appendix 2. Misconduct was defined in Appendix 2 as a ``breach of the Trust's policies or rules and/or a failure to observe standards of expected conduct at work''. The list included:

    · Any action detrimental to the care and treatment of service users (not constituting negligence - see Gross Misconduct)

    B2: JO and Dr. Ardron's care

  13. JO was a young prisoner, aged 19 at the time of his death in February 2016, at HMP Lewes. On 18 November 2015 he hanged himself in his cell. At that time, he was discovered and resuscitated by staff at the prison, and was then admitted to hospital and treated. This was obviously a very serious incident, and without the cardiopulmonary resuscitation performed by the prison staff, it was unlikely that JO would have survived. When he was returned to HMP Lewes he was a person with a high suicide risk.

  14. Upon his return, he was placed at the Healthcare Wing of the prison. He remained there until the time of his death in February 2016. He was first seen by Dr. Ardron on 25 November 2015 during her ward round. Following her...

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