On 21 April 2021, the High Court handed down its judgment in Dr Gupta v Northampton General Hospital NHS Trust, where it dismissed a doctor’s application for injunctive relief against the Trust. This case highlights the importance for employers to demonstrate a clear, balanced and proportionate decision-making process when considering exclusion under Maintaining High Professional Standards in the Modern NHS (MHPS).

Background of the case

The Claimant is a consultant oncologist employed by Northampton General Hospital. A number of concerns arose in respect of claims for additional paid sessions during NHS programmed activities. An investigation was commenced by the Trust’s local counter fraud team. Whilst this was ongoing, concerns began to emerge about billing NHS patients privately for NHS treatment and NHS patients moving to the Claimant’s private practice.

In January 2021, the Trust commenced an investigation under its version of MHPS into both the claims for additional paid sessions, and the emerging concerns. The Trust considered exclusion at that stage but decided that it was not necessary. However, as the investigation progressed, the concerns began to develop further and the Trust obtained a better picture of the impact of the concerns on a particular patient and their family, towards the end of the patient’s life. Two further patients were also identified by local counter fraud as having been potentially billed for treatment inappropriately. There were also concerns that the Claimant had contacted the patient’s family to discuss whether a complaint had been raised by them about him and had contacted some of his colleagues in respect of their likely evidence to the investigation.

The Trust decided to exclude the Claimant on the basis that it was necessary to protect the interests of patients and there were concerns about the Claimant’s continued presence at work hindering the ongoing investigation. The Trust sought advice from PPA and they supported the decision to exclude. The Trust excluded the Claimant from practice on 24 March 2021.

The Claimant challenged this exclusion and applied to the High Court:

• for an injunction to reinstate him to full duties
• to prevent the Trust from notifying the organisations where he carried out his private practice of his exclusion from NHS practice.

The Claimant sought to argue that his exclusion had not been implemented in accordance with the Trust’s MHPS policy, that he did not present a danger to patients and that he had not been afforded the opportunity to make any representations before the decision to exclude was made. The Claimant argued that his exclusion was a breach of contract and a breach of the implied term of mutual trust and confidence between the parties.

The Court’s decision

The case came before Her Ladyship Justice Yip on 14 April 2021 and judgment was handed down on 21 April 2021.

The High Court dismissed the Claimant’s application. The Court was not satisfied that there was a serious issue to be tried and found that it was not arguable that the Trust was in breach of its contractual obligations towards the Claimant. The Court considered that the concerns identified in relation to the Claimant were grave and serious, and also recognised the Trust’s concerns about the potential for the Claimant to interfere in the ongoing investigation. In the full judgment (which can be found here), the Court highlighted the very careful consideration that had been given by the Medical Director to the matter of exclusion, and the proportionate and balanced approach taken. The Court rejected the argument that potential financial harm could not constitute a “danger” to patients

What to take away

When considering exclusion under MHPS, employers must demonstrate a very clear, balanced and proportionate decision-making process which considers all the available alternatives and recognises the significant impact of exclusion on a practitioner. However, in circumstances where there is clear evidence that an individual’s ongoing presence in the workplace might involve risks to the interests of patients or other staff, or potentially impede an ongoing investigation, employers can take the exceptional step of full exclusion.

The Court did highlight the importance of providing a doctor with full reasons for exclusion at the time it is implemented. These need to be carefully thought through with clear and full explanations.

How can Capsticks help?

Capsticks frequently advises NHS trusts on handling serious concerns involving doctors and the MHPS process. If you would like to find out more about how we can support your organisation, please get in touch with Andrew Rowland, Victoria Watson or John Hatton for more information.