The Court of Appeal has upheld a High Court judgment that a neurosurgeon who was subject to an internal investigation did not have the right to see all documents relating to the investigation, only communications sent from one person to another.
THE FACTS
Ms Burn is a consultant paediatric neurosurgeon employed by the Alder Hey Children’s NHS Foundation Trust. She had been in charge of the care of a child who had died. The Trust appointed an investigator to investigate her decision making in relation to the child’s care.
Under the Maintaining High Professional Standards (MHPS) guidance, which was also implemented in the Trust’s policy, a practitioner “must be given the opportunity to see any correspondence relating to the case.” This wording is set out in the Handling Concerns about Conduct, Performance & Health of Medical & Dental Staff policy. Ms Burn argued that this wording meant that statements given by Trust staff in connection with a root cause analysis should be disclosed to her. The investigator took the view that Ms Burn did not have a right to see such documents, but agreed that copies of documents would be provided where consent had been obtained from the relevant third parties, according to data protection and confidentiality obligations. The Trust managed to get consent from most Trust staff who had provided statements, but withheld statements where it had not been able to get consent, as well as withholding two letters from Trust staff to the child’s parents because the child’s parents did not consent.
Ms Burn argued in the High Court, and subsequently the Court of Appeal, that (according to the wording of the policy) she was entitled to see all documents seen by the case investigator in connection with the investigation. She also argued that, under the implied term of trust and confidence, she should be able to see the withheld documents in order to respond properly to the investigation.
Upholding the High Court decision, the Court of Appeal held that the words of the policy did not impose a general disclosure obligation in relation to all documents relating to the investigation or to its subject-matter. The word “correspondence” referred only to communications sent by one person to another and could not be construed as referring to documents of any character. The words did not create an obligation to disclose correspondence, or other documents, on the basis that it related to the subject matter of the investigation. The natural meaning of the word “correspondence” referred only to communications sent by one person to another.
In non-binding comments, the Court of Appeal suggested that there may be an implied contractual term that disciplinary processes will be conducted fairly, and that this may be separate to the implied term of trust and confidence. These comments may open the door for the point to be argued in another case.
WHAT DOES THIS MEAN FOR EMPLOYERS?
This case gives a useful clarification on a provision in MHPS which often leaves employers with requests from a practitioner under investigation to see all documents reviewed by a case investigator. In this case not all the documents or correspondence were relevant to the investigation in hand, nor had consent been provided by others for release of the information, and therefore the Trust was able to resist the request. Again, each case will turn on its own facts and the wording of a Trust’s own policy with regard to disclosure of information during the investigation. As a matter of fairness it will be important that the practitioner knows the case they have to answer and can see and respond to key documents.
