Dismissal of hospital consultant did not breach fair trial rights

Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB)- Read judgment

The High Court has dismissed Dr Raj Mattu’s claim that his dismissal by an NHS Trust was in breach of contract and in breach of his Article 6 right to a hearing before an independent and impartial tribunal. This is one of the first judgments on the applicability of Article 6 to disciplinary and dismissal proceedings since the decision of the Supreme Court in R (G) v X School Governors [2011] UKSC 30 (read our post).

Dr Mattu was employed by the Trust as a consultant in non-invasive cardiology and general medicine in 1998. In 2002 he was suspended on disciplinary grounds; however, the relevant disciplinary hearing did not occur until 2007 and the suspension was in place until July 2007. Further, Dr Mattu was on sick leave for at least a year from September 2006.

It was clear that, given the length of his absence (some 5 years), it would not be desirable for Dr Mattu to return immediately to clinical practice in July 2007. However, the parties fell out over the question of reskilling. Dr Mattu declined to sign an action plan drafted by the Trust providing for a year long programme of clinical training in London. He thought that reskilling should have an additional six months connected to research with the possibility of that time being spent in the USA.

Dr Mattu’s refusal to sign the action plan was determined by the Chief Executive of the Trust to amount to misconduct and he was dismissed on 30 November 2010.

The issue before Timothy Straker QC (sitting as a Deputy High Court Judge) was whether the Chief Executive of the Trust was entitled in the circumstances to dismiss Dr Mattu. The doctor’s case was that in the circumstances there was no such entitlement as the procedure used to effect dismissal was in breach of his contract and in breach of Article 6.

As to the first argument, this turned on the categorisation of the alleged misconduct and whether it engaged the safeguards provided by Maintaining High Professional Standards in the Modern NHS (MHPS) for dealing with issues of a clinical nature. Suffice it to say that the judge found that the misconduct had been correctly classified, an appropriate procedure adopted and therefore there was no breach of contract in the manner of dismissal.

As to the Article 6 point (the main concern for this post), Dr Mattu argued that his dismissal by a public body such as the Trust, which is in turn part of the NHS, is equivalent to being struck off the medical register and being barred from practice in the NHS. Consequently, it was argued that Article 6 was engaged, entitling Dr Mattu to an independent and impartial tribunal in the determination of his civil rights, which entitlement was said not to be fulfilled as the dismissal was decided upon by the Chief Executive of the Trust.

The judge rejected the Claimant’s argument. Referring to the recent cases of R (Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 270 (Admin) as well as R (G) v X School Governors, the judge found that whether the civil right in question was to be characterised as “a civil right to practise the profession in which one is qualified” or “a right to practise as a consultant” or even “a right to practise … as a consultant cardiologist”, the process of dismissal did not, in this case, involve the determination of a civil right. This was because, first, the process had no effect on the doctor’s GMC registration and, second, it remained open to Dr Mattu to seek to practise his profession within both the private and public sector.

The judge’s comments on the question of Dr Mattu’s ability to seek employment elsewhere are of some interest; at paragraph 89 he states:

Mr Hendy says the decision of the Trust is so potent that he, Dr Mattu, is effectively disabled from working in the NHS, which, he contends, is a monopoly employer.  I note this is contention rather than evidence.  I can and should take judicial notice of the fact that the National Health Service is a large organisation but I have very little evidence as to how bodies within the NHS would react to Dr Mattu’s dismissal.  It is apparent that there are within the NHS a variety of (for instance) NHS Trusts.  Obviously there is co-operation between them but there is also a degree of independence.

And at paragraph 95:

Further, it remains open to Dr Mattu to seek to practise his profession within both the private and public sector.  I do not consider that a right to practise one’s profession has, as a correlative, an obligation that a particular job or employment be provided.  The fact remains that Dr Mattu is a fully registered medical practitioner able to seek employment or if he wished to be self-employed.

Thus, Dr Mattu’s position, as a registered consultant, was distinguished from the position of the trainee doctor in Kulkarni v Milton Keynes Hospital NHS Trust [2009] ICR 101, who could not complete his training in the private sector and whose dismissal would (in the obiter view of Smith LJ) have engaged Article 6 and its safeguards.

It is perhaps difficult to see how the evidential gap identified by the judge in Mattu could be filled; ought the Claimant to have made various applications for alternative employment within the NHS in order to be able to use the anticipated rejection letters as evidence of the difficulty he faced? Such a process of ‘dummy’ applications might be difficult to square with an ongoing appeal against dismissal and, on the facts of Dr Mattu’s case, the ostensible ground of objection would most likely be that he had been out of practice for approaching 9 years and required considerable retraining.

In any event, the judge found that on the facts of this case, where Dr Mattu was entitled to appeal against his dismissal to a panel of senior NHS employees who had no prior involvement, the overall process met the requirements of Article 6, despite the fact that the dismissing Chief Executive could not himself be said to be “independent and impartial”.

The judge also rejected an alternative argument that Article 6 was engaged on the basis that there had been a determination of a civil right to enjoy a good professional reputation. The judge observed at paragraph 109 that:

I do not doubt that such dismissal could be described as a blot on Dr Mattu’s copy book but I do not consider that Mr Hardy was determining Dr Mattu’s reputation.  Further, as Blair J observed [in Puri’s case] article 6 provides procedural guarantees rather than causes of action and there were no substantive rights to which the article could attach.

Overall, it appears that if Article 6 is to be engaged in disciplinary/dismissal proceedings within the NHS there must be an exceptional situation such as identified in Kulkarni where the dismissal truly ends the professional’s career. There may however be room to expand this exceptional category by means of cogent evidence of a cartel/“closed shop” approach to employment within the NHS combined with little or no prospect of alternative private practice.

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