Jain v Manchester University NHS Foundation Trust, Court of Appeal - Queen's Bench Division, November 13, 2018, [2018] EWHC 3016 (QB)

Resolution Date:November 13, 2018
Issuing Organization:Queen's Bench Division
Actores:Jain v Manchester University NHS Foundation Trust
 
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Neutral Citation Number: [2018] EWHC 3016 (QB)

Case No: TLQ18/0564

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 13/11//2018

Before :

MR. JUSTICE SWIFT

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Between :

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Jeremy Hyam QC, and Nicola Newbegin (instructed by Radcliffes LeBrasseur LLP)

for the Claimant

Mark Sutton QC, and Louise Chudleigh (instructed by Law by Design Limited)

for the Defendant

Hearing dates: 15th, 16th, 17th, 18th and 19th October 2018

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Mr Justice Swift:

  1. Introduction

  1. The Claimant is employed by the Defendant NHS Foundation Trust as a Consultant Radiologist pursuant to the terms and conditions referred to and set out in a contract dated 6 May 2014. He first commenced work on 5 November 2001. As at 2001 the Claimant's employer was the University Hospital of South Manchester NHS Trust. In 2006 the University Hospital of South Manchester became a Foundation Trust. On 1 October 2017 the Manchester University NHS Foundation Trust was established as a result of the merger of the South Manchester University Hospitals NHS Foundation Trust and the Central Manchester University Hospitals NHS Foundation Trust.

  2. From the outset of his employment, the Claimant's work fell into two parts, split 50/50. One part was in the Trust's Breast Service. The Breast Service is based at the Nightingale Centre (at the Wythenshawe Hospital) which is a purpose-built breast cancer prevention and treatment centre. The responsibilities of the Breast Service cover the whole of the Greater Manchester area, and comprise the screening programme for Greater Manchester, which is run from the Nightingale Centre; the provision of counselling services to those with a high genetic risk of breast cancer; and referral work including MRI screening and a biopsy service. As a Consultant Radiologist in the Breast Service, the Claimant's responsibilities covered breast screening mammogram reporting (assessing mammograms to determine if any follow-up steps needed to be taken), working in assessment clinics seeing patients who had been recalled following screening appointments, and working in symptomatic clinics treating patients referred by GPs. The work at the clinics could include performing breast MRI scans and undertaking image-guided biopsies. In these proceedings this clinic work has been referred to generally as ``assessment work''. The other part of the Claimant's work has been described as ``general radiology''. This is performed in the Trust's General Radiology Directorate and includes what has been described as ``plain film reading'' and nuclear medicine (generically, the use of radioactive substances for the purposes of diagnosis and treatment). Under the terms of the letter of appointment, the Claimant was required to undertake such work as was set out in his Job Plan. The Job Plan was to be reviewed from time to time in accordance with the arrangements set out in the standard terms and conditions for NHS Consultants in England which were referred to in the letter of appointment and which formed part of the Claimant's terms and conditions of employment.

  3. In these proceedings the Claimant contends that the Trust has acted in breach of his terms and conditions of employment in various ways. The material contractual terms are at clauses 3 and 17 of the May 2004 contract. Clause 3 is headed ``General Mutual Obligations''. In substance it is a statement of the well-known employment law trust and confidence obligation. As formulated at clause 3, both parties agreed (a) to cooperate with each other; (b) to maintain goodwill; and (c) ``to carry out our respective obligations'' in connection with agreeing and operating a job plan, implementing appraisal arrangements, and following the Trust's policies. Clause 17 of the contract is headed ``Disciplinary Matters'', and provides as follows.

    ``Wherever possible any issues relating to conduct, competence and behaviour should be identified and resolved without recourse to formal procedures. However, should we consider that your conduct or behaviour may be in breach of the Trust's disciplinary procedures or that your professional competence has been called into question, we will resolve the matter through our disciplinary or capability procedures, subject to the appeal arrangements set out in those procedures.''

  4. The breaches of contract alleged span the period from November 2015 to the beginning of 2018. The history of the matter reaches back further still to 2008 and comprises various narrative strands. The first strand is complaints about the Claimant's practice which were made in June 2008. Two of the complaints concerned the Claimant's work at the Nightingale Centre, a third concerned his general radiology work. The matters complained of were serious of themselves, but were also regarded as symptomatic of a pattern of poor performance and behaviour over a number of years. An MHPS investigation was commenced.

  5. The abbreviation ``MHPS'' refers to the document ``Maintaining High Professional Standards in the Modern NHS'', issued by the Department of Health, in part in 2003, and in further part in 2005. For NHS Trusts, the MHPS was the subject of Directions by the Secretary of State for Health under the power that then existed under section 17 of the National Health Service Act 1977, and now exists under the National Health Service Act 2006. By paragraph 16(5) of Schedule 2 to the National Health Service and Community Care Act 1990 (and now by paragraph 25 of Schedule 4 to the National Health Service Act 2006), NHS Trusts must act in accordance with such directions when exercising their powers in connection with the employment of staff. The Secretary of State made two relevant Directions, one in 2003 which related to MHPS Parts I and II, and another in 2005 which concerned the whole MHPS. The 2005 Direction required NHS Trusts ``to comply'' with the MHPS, and required them to ``implement'' the MHPS by 1 June 2005. The independent regulator for NHS Foundation Trusts (Monitor) has issued the MHPS as advice to those Trusts. NHS Foundation Trusts are required to have regard to guidance issued by Monitor.

  6. Pending completion of the MHPS investigation, practice restrictions were placed on the Claimant. Such restrictions are envisaged under the MHPS where (for example) they are necessary to protect the interests of patients or other staff. The restrictions imposed on the Claimant affected both his general radiology work, and his work in the Breast Service. So far as the latter was concerned, the Claimant was restricted to mammogram reporting, providing reports and giving advice to clinic colleagues, and research education and training work. As part of the MHPS investigation the Trust commissioned a review of the Claimant's neuro MR scan reports by a Consultant Neuro-Radiologist from a nearby NHS Foundation Trust. That report was provided in January 2009: it made criticisms of the Claimant's ``reporting style'' but concluded that the Claimant's overall performance was satisfactory. It appears that during 2009 the decision was taken that the concerns about the Claimant's work in the Breast Service could be addressed by a local performance improvement plan. However, by June 2010 that plan had only been partially agreed. The partial agreement was to the effect that the Claimant would recommence breast MRI scan work, double reporting with another consultant. But the remainder of the improvement plan was outstanding. Until the improvement plan had been put into effect the Claimant's job plan could not be agreed. Overall, the Claimant remained subject to practice restrictions, and that state of affairs persisted for a considerable time.

  7. The second strand to the background narrative is the involvement of Public Health England in the form of its National Screening Quality Assurance programme (``QA''). QA is part of a process of checking that national standards are met, and ensuring that screening programmes are safe and effective. The Breast Service receives QA visits every three years. A QA visit took place in 2010, and the report that followed contained a recommendation that ``... all radiologists need to perform a dedicated assessment clinic even if this is on alternate weeks to maintain their numbers and competence''. This recommendation was directed to the Claimant's circumstance, and the fact that since June 2008 he had not undertaken assessment work but only film reading work. The QA reviewer regarded this as outside the best standards practice guidance, and a matter of concern. Put briefly, not doing assessment work risked undermining the Claimant's performance as a film reader. By the time of the next QA review in 2013, this state of affairs had not been addressed. A further report dated 3 October 2013 contained the following recommendation.

    ``All radiologists involved in film reading should also perform assessment. This is an outstanding recommendation from 2010 and should be addressed within six months.''

  8. The third narrative strand relates to the Claimant's health. The Claimant suffers from ankylosing spondylitis, a form of arthritis affecting the joints of the spine. This is a chronic condition that gives rise to considerable pain and discomfort, and also fatigue. In 2009 and 2010, when the Claimant was on restricted duties, occupational health reports stated that the Claimant was fit to undertake those duties subject to the need for adjustment to his workstation and the provision of an appropriate chair. In January 2011 the Trust requested a further occupational health report in connection with the efforts then being made to reintroduce the Claimant to the full range of duties and agree a job plan. The report was provided in February 2011 and was to the effect that when it came to...

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