Simon Gorton QC successfully represents Alder Hey NHS Foundation Trust at the Court of Appeal

December 1, 2021

Simon Gorton QC from Exchange Chambers has successfully acted for Alder Hey NHS Foundation Trust at the Court of Appeal.

The Claimant / Appellant is a consultant paediatric neurosurgeon employed by the Defendant, Alder Hey Children’s NHS Foundation Trust, since 2009.  The claim arose out of the death of a patient, Patient A, in December 2017. The Claimant was the consultant, in charge and on-call, when Patient A required operative procedures and her condition deteriorated.

The claim concerned the Defendant’s conduct of a disciplinary investigation against the Claimant rather than the merits of the allegations against the Claimant in relation to her clinical care of Patient A.

During the course of the internal investigation, the Claimant sought disclosure of a number of documents from the Case Investigator appointed by the Defendant, prior to attending an interview to give her account of events. Some of the material sought was provided. Information which was not provided included correspondence with Patient A’s parents and statements from staff produced for an earlier investigation into Patient A’s care.  Matters reached a stalemate with the Claimant declining to attend an interview without sight of the documents and the Defendant indicating its intention to conclude the investigation without further input from the Claimant if she remained unwilling to attend an interview. The Claimant subsequently applied to the Court for an injunction to require the Defendant not to conclude the investigation prior to disclosing the documents and a declaration in respect of her contractual rights

The High Court ruled that the Claimant was not permitted to see all materials held by the Case Investigator prior to investigatory review.

The Defendant’s decision not to disclose the documents sought did not breach the express terms of the Claimant’s contract. Nor was there a breach of the implied term of trust and confidence. The decision of the Case Investigator as to the relevance of the correspondence sought was primarily a matter for her discretion, subject to rationality review by the Courts. There was no breach of any requirement to consult with the Claimant about the information to be collected for the investigation and it was not therefore necessary to consider the contractual status of the provision.

The Claimant appealed the High Court’s decision to the Court of Appeal – but this appeal has now been unanimously dismissed by Lord Justice Underhill, Lord Justice Singh and Lady Justice Elizabeth Laing.

The appeal was dismissed because the Court of Appeal accepted entirely the argument on behalf of the Respondent (contained in its Respondent’s Notice and its Defence to the action) that the materials sought by Claimant were not matters that related to the MHPS case. That ended the Claimant’s case and rendered the judgment of the Mrs Justice Thornton

Dismissing the appeal, Lord Justice Underhill said:

“It is extremely regrettable that this dispute has delayed the progress of the investigation by almost a year…The Trust did not seek to withhold documents simply on the basis that there was no legal obligation to disclose them: its attitude – which was, if I may say so, sensible and commendable – was that it would give the Claimant everything on the list unless there were objections on the grounds of confidentiality.”

This is an important case under MHPS dealing with the scope and duty of disclosure of Case Investigators prior to an investigatory interview.

The Court of Appeal also made very interesting (obiter) comments about an implied term regulating the fairness of a disciplinary process. Much will no doubt be made of this in future cases.

Simon Gorton QC was instructed by Emlyn Williams at Weightmans.