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Consultant tried to halt a disciplinary hearing

19 Nov 2013

Ed Madden, BL, looks at a Northern Ireland High Court case in which a senior consultant in the Regional Specialist Dental Hospital in Belfast sought an injunction preventing his employer from holding a disciplinary hearing.

Prof Philip John Lamey holds a joint appointment as a Professor at Queen’s University Belfast and as the Senior Oral Medicine Consultant in the Regional Specialist Dental Hospital in the city. In respect of the latter post, he is employed by the Belfast Health and Social Care Trust (the Trust). Prof Lamey is both a dentist and a medical practitioner.
During 2010 it apparently emerged that there had been deficiencies in his diagnoses of a number of patients who had oral tumours. In some cases it was alleged that even when diagnosed with tumours, the patients concerned were not referred in a timely manner for surgery.

Exclusion from work
These matters led to his exclusion from work in December 2010, initially on an informal basis. His absence was formalised in April 2011. During his exclusion from work he was paid as a consultant joint professor and was in a position to devote himself fully to his private practice.

The Trust has a written procedure for dealing with issues of clinical performance, which is set out in Section 4 of a framework document: ‘Maintaining High Professional Standards in the Modern HPSS’.

Section 4 deals with the handling of concerns relating to the conduct, clinical performance and health of both medical and dental employees.

The framework document, which forms part of the terms of employment of practitioners, was not invoked in respect of Prof Lamey.

It seems that initially the Trust instead decided to await the outcome of separate disciplinary proceedings before the General Medical Council and the General Dental Council.

However, on April 15, 2013 Mr Brian Barry, Director of Specialist Hospitals and Women’s Health, wrote to Prof Lamey on behalf of the Trust.

In the course of the correspondence he noted that arrangements were being progressed for “a performance hearing” within the framework.

He said, however, that “separate from that ongoing process” he had become aware of recent media coverage concerning Prof Lamey’s attendance at the General Dental Council Professional Conduct Committee and its possible impact on the confidence of patients at the Dental Hospital.

He informed the Professor that he had requested Ms Therese McKernan, Associate Consultant, HSC Leadership Development Centre, to undertake an investigation into these matters. Prof Lamey met with Ms McKernan on May 8.

Sensational headlines
In the course of a further letter to Prof Lamey on July 3, Mr Barry referred to Ms McKernan’s report, which in summary concluded that:
• There was a reasonable belief that patients would have issues of trust and confidence in the service to be provided by Prof Lamey;
• The coverage in the media had created “sensational headlines” arising from accounts given by patients and relatives which were “very powerful” and showed a loss of confidence in him;
• An admission made by him in the course of the General Dental Council Professional Conduct Committee in relation to his record-keeping “not always being up to standard” would also lead patients to question their confidence in him;
• Any patient who checked his registration status with the General Medical Council would see significant undertakings which had been accepted by him “and would not be reassured”.
Prof Lamey was informed that a meeting would be held on July 29 to consider the report and that one possible outcome was the termination of his employment with the Trust.
At that time the disciplinary proceedings before the Professional Conduct Committee of the General Dental Council had not concluded, and Prof Lamey’s evidence and that of his expert witness had not yet been heard by the Committee.

Serious issue
On July 25, Prof Lamey brought proceedings in the Northern Ireland High Court, in which he sought a declaration that the holding of a meeting to determine the termination of his employment for the reasons expressed in Mr Barry’s letter of July 3 and in advance of the conclusion of the Professional Conduct Committee hearing before the General Dental Council amounted to a breach of contract on the part of the Trust.

He also sought an interlocutory injunction restraining the Trust from holding such a meeting pending the outcome of the full hearing of his case before the High Court.

When the application for an injunction came on for hearing on August 27, it was contended that the holding of a meeting which would consider the termination of Prof Lamey’s employment was also in breach of the framework document.

Giving his judgment in respect of the application for an injunction, the judge said that the first issue for the Court was whether the plaintiff had established that there was a serious issue to be tried.

The position put to him on behalf of the Trust was that in respect of the proposed disciplinary meeting, the employer intended to rely on what is referred to as the ‘Standard procedure’ contained in Schedule 1 of the Employment (Northern Ireland) Order 2003.

That procedure sets out a series of steps in respect of dismissal and disciplinary procedures generally. Prof Lamey, it was argued, would be in a position to put evidence in defence of his position in the course of that meeting.

The judge said that while these points were important, they did not defeat the submission made on behalf of Prof Lamey that there was a serious issue to be tried.

If what was at issue was a matter of clinical performance, it was at least arguable that the Trust was obliged to follow the procedures set out in the framework document and “not resort to calling an ad hoc meeting”, particularly if that meeting was going to take into account “mere publicity concerning a part-heard matter”.

Adequate remedy
In that Prof Lamey had established that there was a serious issue to be tried, the next question for the Court was whether damages would be an adequate remedy for him if an injunction were not granted and he ultimately succeeded in the full trial of the action. In this regard, the judge was satisfied that damages would be an adequate remedy if the Professor was dismissed at the proposed meeting and it later transpired that the dismissal was either unfair, or in breach of his contract. In that situation he would have remedies before a tribunal or in the courts.

The Trust would be in a position to meet any award of damages that might be made. There was no evidence to suggest that the statutory limit of damages for unfair dismissal or the notice payment under the contract would be inadequate. In those circumstances, it would not be appropriate to grant an injunction.

While that determination would normally conclude the matter in an application for an interlocutory injunction, the judge said that “out of caution” he would address some other issues in the case. One of these concerned Prof Lamey’s position as a medical practitioner.

The Trust was not proposing to reach its decision in relation to the Professor solely on the issue of bad publicity. They were also taking into account that the General Medical Council had concluded its investigation. In this regard, the Professor had given 15 undertakings to the Council.

One of these undertakings was to work with a Postgraduate Dean to formulate a personal development plan specifically designed to address deficiencies in a number of areas of his practice, including treatment and investigation.

Mr Justice Deeney said that the undertakings given by Prof Lamey to the General Medical Council were very onerous and justified the Trust in addressing his position without awaiting the outcome of the General Dental Council hearing.
The Court declined to grant him an injunction.

Reference: [2013] NIQB 91

19 November 2013

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