No breach of contract where consultant excluded from hospital

Background
AM was employed as a consultant with the Trust from 2004 as a colorectal, laparoscopic and general surgeon. In July 2010, concerns were raised by the Trust’s medical director about AM’s surgical practice being below the required standard.

As a result of these concerns, the Trust placed restrictions on AM’s practice pending an investigation. AM was prohibited from carrying out major colorectal surgery. He was allowed to continue less major surgery.

Upon investigation, it was found that AM had problems in accepting advice from his colleagues and admitting his mistakes.

In March 2011, the Trust decided to invite the Royal College of Surgeons (“RCS”) to conduct a review of complication rates for colorectal surgery and AM’s perceived attitude to these complications.

Following this review, the Trust decided that AM should be excluded from conducting all forms of surgery and entering all clinical areas.

AM brought proceedings against the Trust, contending that his exclusion from carrying out surgery was a breach of contract. He had four main arguments:

1. The RCS was only called in to review AM’s practice in relation to colorectal surgery. There were no concerns about AM’s general practice and therefore the Trust should not have excluded AM from all surgery;
2. The Trust did not consider alternatives to exclusion;
3. The Trust should not have maintained the exclusion for over 4 years;
4. AM should now be permitted to return to work.

AM also sought an injunction requiring the Trust to allow him to return to clinical practice. He claimed damages for being unable to practice privately during the excluded period.

The decision
The High Court decided that there was no breach of contract by the Trust. Addressing each of AM’s arguments:

1. RCS is the highest expert body in the country. The Trust was entitled to rely on its findings and implement its recommendations regarding AM’s exclusion from all surgery. Concerns were raised about AM’s fitness to carry out surgery. It was therefore reasonable for the Trust to conclude that AM was unfit to do any surgery as all surgery required clinical judgment;
2. The Trust considered alternatives to exclusion but had found that there were none. Teaching was done primarily on the job. As AM was excluded from going to theatre or accessing wards, he could not teach more junior doctors. Furthermore, given that AM did not have an academic background and the timetables were set far in advance, AM could not conduct lectures. The Trust considered a clinical auditing role for AM but concluded that this involved the exercise of clinical judgment and as such, it was not appropriate for AM;
3. When considering whether to continue with the exclusion, the Trust decided that as there was no-one more senior to supervise and support AM, the exclusion must continue. The Court decided that although this was the wrong test to apply, it would not have made a difference to the outcome of the case. The Trust was entitled to invite the RCS to conduct a review of AM’s conduct. When the Claimant raised issues with the RCS review, it was sensible to seek further expert advice. The Trust also rightly tried to find a placement for AM in another trust given the issues raised about AM’s interaction with his colleagues;
4. The Trust was concerned that given AM’s lack of insight into the extent to which relationships had been affected by his attitude, it would be difficult to re-introduce AM into the same working environment. The Court decided that this was the conclusion of a reasonable employer. Furthermore, a return to work would have required AM to be supervised. Only one doctor was willing to supervise AM and the Trust reasonably concluded that this was not appropriate as the proposed candidate did not have the necessary skills to do so.

What this means for you
Employers need to think very carefully before excluding a medical professional and preventing them from practising in their area of clinical expertise as to do so can and has amounted to a breach of contract.

On the facts of this case, however, the exclusion did not amount to a breach but each case will turn on its own facts.

If aspects of the clinician’s role can be separated from one another, this may make a blanket exclusion from all tasks unreasonable.

When an employer believes that a clinician’s suspension may continue for a long period of time, it should consider whether there are alternatives to a prolonged exclusion to prevent de-skilling the clinician.