Health adviser alert
Published 2 February 2015
Patient safety must trump the need to avoid unnecessary exclusions of doctors under MHPS.
Talib Al-Mishlab v Milton Keynes Hospital NHS Foundation Trust
The High Court considered the application of Maintaining High Professional Standards (MHPS) in this case, and has this morning made important findings on:
- The test that a Trust is required to meet if their decision to exclude a doctor under MHPS is to be legal; and
- The weight and relevance of the issue of patient safety to a Trust's decision making.
This case is helpful to NHS employers in clarifying the nature of the discretion that NHS bodies have in excluding doctors, and underlining the reluctance of the courts to intervene and second guess reasonable management opinions.
Mr Al-Mishlab was employed as a consultant and general colorectal surgeon at the Trust. Following capability concerns, initial restrictions were placed on his practice in July 2010. Subsequently, in March 2011, following a recommendation from the Royal College of Surgeons, the Trust excluded the consultant from practice.
The exclusion (and subsequently restrictions that had the effect of excluding him from carrying out clinical work) continued for three and a half years pending an internal investigation under MHPS, during which time there were three expert's reports into capability issues and an assessment by the GMC. The consultant sought to have the exclusion lifted repeatedly throughout the period, however the Trust considered that it should remain in place. Of particular concern to the Trust was a total breakdown in working relationships with colleagues, which it felt would place patients at risk, were the consultant to return to practice at the Trust.
The consultant issued proceedings in the High Court alleging that the terms of MHPS, which were incorporated into his employment contract, had been breached. The consultant sought a declaration of breach of contract, damages for lost income from private work and an injunction compelling the Trust to return him to work.
The specific allegations of breach of contract and the MHPS procedure related to the imposition and maintenance of the exclusion.
The Court dismissed all of the consultant's claims.
In assessing whether or not the Trust had been in breach of contract in imposing and maintaining the exclusion (and subsequent restrictions), the Court found that MHPS gives the Trust a discretionary power to exclude a doctors subject to certain contractual requirements or fetters (so for example exclusion must be necessary and alternatives considered). In assessing the exercise of such discretion to exclude, the court must bear in mind the employment context and apply the Wednesbury standard of reasonableness, i.e whether the decisions by the Trust in relation to exclusion were so unreasonable that no reasonable body acting reasonably could have made the same decision.
It is unusual in employment cases for a court to apply Wednesbury principles. In practice it is debatable whether this adds materially to the broad discretion provided by the "range of reasonable employer responses" test, which has been applied in cases where a broad contractual discretion exists.
When considering the balance in excluding a doctor/imposing restrictions between the intention of MHPS, which is to prevent unnecessary exclusions of doctors and the need to ensure patient safety, the court said:
"To the extent that a balance is ever required to be made between interests of patients, and those of a practitioner, the former must always take precedence. Moreover, if there is any doubt about where the balance lies, that must be resolved in favour of the safety of patients."
This very clear statement that patient safety must always take precedence will be both reassuring and of great assistance to Trusts facing this dilemma.
This statement does not remove the need for a Trust to provide a cogent explanation of why it considers a risk to patient safety to exist, but once such a sufficient explanation has been provided, the court acknowledged that judges are poorly placed to second guess decisions by Trusts about the necessity of an exclusion, and they should be slow to do this.
Helpfully, the court noted that where minor breaches of MHPS occurred that could not have led to the losses claimed by the doctor, these could be disregarded from the analysis.
The Trust was successfully defended in this claim by a DAC Beachcroft team led by Udara Ranasinghe. Counsel for the Trust was Ben Cooper of Old Square Chambers.