Employment

Doctor misleading patient over problems during operation - disciplinary code providing different procedures for charges of personal and professional misconduct - doctor's behaviour properly categorised as professional, not personal, conduct

Skidmore v Dartford and Gravesham NHS Trust: HL (Lord Bingham of Cornhill, Lord Steyn, Lord Clyde, Lord Hutton and Lord Scott of Foscote): 22 May 2003

A doctor was charged by his employer, a hospital trust, with personal misconduct in misleading a patient over details of an operation which he had performed.

His contract, in standard form, incorporated a disciplinary code issued in a Department of Health circular which distinguished between 'personal' conduct, to be dealt with internally by the trust, and 'professional' conduct, to be considered by an external panel comprising medically qualified members and a legally qualified chairman.

Adopting the internal procedure, the trust found the charge proved and dismissed him summarily.

An employment tribunal rejected his complaint of unfair dismissal and the Employment Appeal Tribunal [2001] ICR 911, dismissed his appeal.

The Court of Appeal [2002] EWCA Civ 18; [2002] Gazette, 7 March, 29; [2002] ICR 403, allowing his appeal, concluded that his behaviour should have been categorised as professional, not personal, conduct and that the trust had used the wrong procedure.

The trust appealed.

Michael Douglas QC and Peter Oliver (instructed by Brachers) for the trust; Timothy Barnes QC and Angus Moon (instructed by Rad-cliffesLeBrasseur) for the doctor.

Held, dismissing the appeal, that the trust, as initiator of disciplinary proceedings, had to decide which disciplinary route to take in compliance with the contract and use of the wrong procedure would entitle the doctor to appropriate relief; that the code bore a broad, purposive interpretation, in particular with regard to behaviour which might amount to 'professional' misconduct; that the primary categories were of professional conduct and competence which related to the exercise of medical skills, whereas personal conduct was a residual category of behaviour outside those categories; that, since the charges related to the doctor's medical skills and called for medical expertise in their resolution, the appropriate category was professional conduct and the external procedure should have been used.