Significant decision on how to deal with concerns about doctors’ clinical capabilities
In the case of Dr Chakrabarty v Ipswich Hospital NHS Trust (and the National Clinical Assessment Service as an interested party) the High Court refused the application for a permanent injunction restraining the Trust from referring performance concerns about Dr Chakrabarty to a capability panel.
Dr Chakrabarty commenced employment with the Trust on 1 March 2004 as a Consultant in Cardiology and General Medicine. As a Consultant, he was expected to demonstrate initiative in leading and developing the service. Further, as the most highly qualified and experienced clinician in the department he was expected to take responsibility for the supervision and training of junior doctors with whom he worked.
Between October and December 2004 concerns were raised about Dr Chakrabarty’s practice and performance. There was a preliminary investigation into these concerns and in December 2004, the conclusion was that a full investigation should be undertaken by a senior clinician. The investigation would be carried out under the Trust’s internal disciplinary and capability policy known as the Additional Disciplinary and Capability Policy and Procedures and General Rules of Conduct for Medical Staff (“the ADCP”). This implemented the national procedures Maintaining High Professional Standards in the Modern NHS (MHPS).
The report of 15 April 2005 identified concerns in relation to Dr Chakrabarty’s clinical competence, including outpatient work and ward work. There were also concerns about his ability to manage the medical team and to liaise with nurses and other clinical staff. Subsequently, on 25 November 2005, Dr Chakrabarty was suspended on full pay with immediate effect. Whilst suspended from duty Dr Chakrabarty could not attend hospital premises unless by prior arrangement nor could he contact colleagues, staff or patients in any official capacity whether in relation to the suspension or the concerns raised.
A preliminary report was prepared in April 2006 and a final report, taking into account Dr Charkrabarty’s detailed response, was prepared on 25 August 2006. At a meeting with the Trust’s Board on 28 September 2006, it was recommended that the Board should move to convene a capability hearing.
In a protracted and complex dispute, both the NCAS and GMC became involved.
The MHPS process required referral to the NCAS for an assessment of Dr Chakrabarty and that was carried out. A significant factor in the adoption of MHPS was the recognition that substantial costs were incurred if doctors were suspended from working for long periods of time. Also, it was important to tackle performance concerns by training and other remedial action rather than solely through disciplinary action where possible.
Because of the serious concerns about Dr Chakrabarty, there was also a referral to the GMC about his fitness to practise. In that context, the GMC was also required to carry out its own assessment of Dr Chakrabarty.
In essence, because of the GMC assessment, a second NCAS assessment did not go ahead.
After several years of dispute with the GMC about its findings and with the Trust about retraining, Dr Chakrabarty was invited to a capability hearing to take place on 10 and 11 March 2014. Dr Charkrabarty’s representative stated that it would be inappropriate for the Trust to take action based on the GMC performance assessment whilst the NCAS assessment remained outstanding. The Trust’s response was that this was not a reason for delaying the capability hearing. Dr Chakrabarty sought an injunction.
The issues in dispute were:
- Whether it was unlawful for the Trust to proceed with the capability hearing under MHPS before having the NCAS assessment of Dr Charkrabarty’s capability and without the NCAS assessing the prospects of success of remediation.
- Alternatively whether it was unlawful for the Trust to proceed with the capability hearing without waiting for the outcome of the GMC proceedings.
Dr Chakrabarty’s application for a permanent injunction failed.
The High Court held that an employer Trust can proceed to a capability hearing even if it has not received the NCAS assessment. Further, there is no requirement that the NCAS must find a practitioner irremediable before they can be referred to a capability panel. Crucially, referral to the capability panel cannot be characterised as a breach of the implied term of trust and confidence.
This case concerned the exercise by the Trust of contractual disciplinary powers and no legal barrier had been established to prevent the Trust from proceeding to a capability hearing. As the Court stated, “there is a significant and apparently intractable dispute between the Trust and the claimant about his competence and capability to fulfil his role as a Consultant at the Trust. The only forum for resolution of that dispute is a capability hearing convened in accordance with MHPS.”