Dr Mohamed Al-Obaidi v Frimley Health NHS Foundation Trust [2019] EWHC 2357 (QB)

Dr Mohamed Al-Obaidi v Frimley Health NHS Foundation Trust [2019] EWHC 2357 (QB) was an application before Mrs Justice Elisabeth Laing in the High Court in which the claimant, a consultant interventional cardiologist, sought a permanent injunction to prevent his employer from holding a disciplinary hearing. The court dismissed the application and refused to grant the injunction.

The claimant had been employed by the defendant Trust since July 2006 and served as Clinical Lead in Cardiology from 2011 until October 2017. His written contract of employment incorporated the Disciplinary Policy and Procedure and the Policy and Procedure for Maintaining High Professional Standards for Medical Practitioners. The case arose from the death of patient DM at Wexham Park Hospital on 19 January 2017. DM died as a result of the mismanagement of a coronary perforation which occurred during a percutaneous coronary intervention performed by Dr Ali, a fellow consultant cardiologist. Dr Ali failed to recognise that DM had suffered a coronary perforation (treating it instead as a less serious dissection), failed to stop the procedure or treat the complication appropriately, and DM died approximately three hours later from cardiac tamponade.

The defendant subsequently dismissed Dr Ali following a separate disciplinary process for giving dishonest accounts of his management of DM. The defendant then brought two disciplinary charges against Dr Al-Obaidi. Charge 8a alleged that he had deliberately provided a misleading account of the management of DM in a statement dated 1 July 2017. Charge 8b alleged that he had stated that Dr Ali told him on 19 January 2017 that two patients had sustained perforations that day when in fact Dr Ali could only have informed him about one perforation in relation to patient SC, and that Dr Ali did not mention that DM had sustained a perforation during any conversation on that date. If proven, both charges were said potentially to amount to gross misconduct.

Dr Al-Obaidi contended that the charges did not disclose a case to answer of gross misconduct, that the disciplinary process was a breach of contract, that the Trust’s conduct had destroyed any confidence he might have had in the process, and that delay since the events in 2017 was such that the hearing should be restrained. He relied on text messages exchanged with another consultant, Dr Rex, on 20 January 2017 in which Dr Rex told him about Dr Ali’s “horrible case” and Dr Al-Obaidi replied referring to “the patient with the perforation” whom he thought was stable, suggesting he knew DM had suffered a perforation. Dr Al-Obaidi also relied on computer footprint evidence showing that DM’s imaging records had been accessed from his office computer at 16.32 on 19 January 2017, which he said corroborated his account that he had viewed the images with Dr Ali that day and that Dr Ali told him about two perforations.

The defendant relied on the findings of the disciplinary panel which dismissed Dr Ali. That panel concluded that Dr Ali had treated DM’s complication as a dissection rather than a perforation on 19 January 2017 and did not realise it was a perforation until the next day. The panel’s conclusion was based on nine separate strands of evidence including that the cathlab nurses recorded “dissection” because that is what they were told, the cathlab report stated “localised dissection noted”, the balloon was inflated for only 30 seconds to two minutes rather than the 10 minutes appropriate for a perforation, additional heparin was given at the end of the procedure rather than reversing anti-coagulation, the mood in the cathlab did not change in the way it would have for a life-threatening perforation, and no echo was performed. An independent expert, Dr Gunning, reviewed DM’s case and made trenchant criticisms of Dr Ali’s conduct, describing the use of oversized equipment and the post-dilatation with a 4.5mm balloon as a “significant error” and “foolhardy at best…catastrophic”. Dr Gunning disagreed with aspects of Dr Al-Obaidi’s 1 July 2017 statement which appeared to downplay or endorse aspects of Dr Ali’s management.

Mrs Justice Elisabeth Laing considered first the relevant law concerning when a court should grant an injunction to restrain disciplinary proceedings. She reviewed the decision of the Supreme Court in West London Mental Health NHS Trust v Chhabra [2013] UKSC 80, in which the Supreme Court held that a case investigator gathers evidence but does not decide facts, that the case manager may convene a conduct panel where the case investigator’s report records evidence capable of amounting to misconduct, and that an injunction to restrain disciplinary action may be granted where there are procedural irregularities, but only if those irregularities are sufficiently serious rather than minor. The judge noted that Chhabra did not establish the precise test for determining whether conduct is capable of amounting to misconduct. She considered whether the correct approach was that set out in Skidmore v Dartford and Gravesham NHS Trust [2003] UKHL 27, in which the House of Lords held that the court determines for itself whether the employer has acted in accordance with the contract, or whether the approach in Braganza v BP Shipping Limited [2015] UKSC 17 should apply, which would require the court to imply a term that a contractual discretion must be exercised in good faith and rationally, with the court reviewing the decision-maker’s exercise of discretion on public law grounds. Mrs Justice Laing was inclined to the view that the Braganza approach applied, such that the case manager’s discretion to refer a case to a disciplinary hearing must be exercised in good faith and rationally. However, she concluded that it made no difference on the facts which test applied and she would therefore consider both whether the evidence taken at its highest was capable of supporting a charge of gross misconduct and whether a reasonable decision-maker could have reached that conclusion.

Turning to charge 8a, the judge found eight significant features of Dr Al-Obaidi’s 1 July 2017 statement. First, although the independent expert Dr Gunning had identified two moments when Dr Ali should have acted (when the type II perforation became visible and when it worsened to a type III perforation), Dr Al-Obaidi did not identify the first point in his statement. Second, Dr Al-Obaidi characterised his differences with Dr Gunning as honest differences of professional judgment but did not explain this assertion. Third, Dr Al-Obaidi did not comment on significant points in Dr Gunning’s analysis, including that Dr Ali’s equipment was too large for the artery, that better techniques existed for addressing calcification, and that the pressure used was too great. Fourth, Dr Al-Obaidi did not consult contemporaneous notes when preparing his report, despite having been shown by Dr Ali on 22 June 2017 the procedure report which described the complication as a dissection. The lack of any comment on the contemporaneous records made the account significantly incomplete. Fifth, Dr Al-Obaidi did not address the gulf between his mild criticism (“arguably…with hindsight the use of the 4.5mm balloon could have been avoided”) and Dr Gunning’s trenchant criticisms. Sixth, although Dr Al-Obaidi noted there were no images showing the leak was sealed, he did not make clear that there were no images supporting Dr Ali’s account of prolonged balloon inflation to seal the leak. Seventh, Dr Al-Obaidi said he did not know “up to that point” (22 June 2017) that Dr Ali had referred to the complication as a dissection in the cathlab report and that he had never felt Dr Ali was trying to hide or cover up the complication, yet by 1 July 2017 he knew Dr Ali had recorded a dissection in his coroner’s report and that Drs Umerah and Jewsbury were unhappy with Dr Ali’s stance. Eighth, the statement did not explain why, if both consultants identified a type III perforation and the images did not show it had been sealed, an immediate echo was not ordered and checked and fastidious observation not set up.

Mrs Justice Laing concluded that Dr Ho was rationally entitled to consider there was a case to answer on charge 8a and that the evidence at its highest did disclose a case to answer. She acknowledged that she was differing from the view of Martin Spencer J, who had heard an earlier interim application, but explained that she had had time to consider the documents in depth and to reflect. She rejected the submission that the criticisms amounted to exposing Dr Al-Obaidi to disciplinary proceedings for a mere difference of professional opinion. The judge considered that the evidence suggested, taken at its highest, not just a difference of medical opinion but a significant and troubling understatement by Dr Al-Obaidi of the shortcomings in Dr Ali’s treatment of DM.

As to charge 8b, Mrs Justice Laing held that Dr Ho was reasonably entitled to decide there was a case to answer and that the findings of the case investigator, Mr Ireland, and the evidence taken at their highest disclosed a case to answer. The judge rejected the submission that Mr Ireland had simply adopted the bald conclusions of the panel in Dr Ali’s case. Instead, Mr Ireland had explored in detail why the panel reached the conclusion it did. The essential point was that a detailed review of Dr Ali’s behaviour during and after the procedure showed in many different ways that he could not have detected a perforation but had behaved as a doctor who had noticed a dissection. If he had not detected a perforation, it was improbable he could have told Dr Al-Obaidi that he had, and especially improbable that he would have done so at the start of their encounter before looking at the scans. Moreover, Dr Ali’s behaviour after the meeting and after looking at the images was not the behaviour of a doctor who had detected a perforation on those images. The perforation was not visible on all the images and it was not possible to tell from the footprint evidence which images were viewed. Mr Ireland was entitled to conclude that the text messages between Dr Al-Obaidi and Dr Rex were ambiguous and did not necessarily support Dr Al-Obaidi’s account. By the time Dr Rex sent the text message he knew DM had had a perforation and there was no reason for him to correct Dr Al-Obaidi’s understanding, but the material question was whether the text messages showed that Dr Al-Obaidi knew DM had had a perforation. One possible interpretation was that Dr Al-Obaidi only knew that one of the two patients had had a perforation. The judge noted that Dr Al-Obaidi said in answer to a question that he had seen a jet of contrast when he looked at the images with Dr Ali, whereas Dr Ali said he had not seen one, and had a jet of contrast been seen Dr Ali would have acted differently by ordering an echo immediately, which he did not do. The footprint evidence, while corroborating that Dr Al-Obaidi had viewed DM’s images in his office with Dr Ali at about 16.32 on 19 January 2017, did not show which images were viewed, which was the crucial question. The judge did not consider that the footprint evidence was decisive.

Dr Al-Obaidi also argued that the disciplinary process was vitiated by serious and irremediable procedural errors. He complained first about an investigation carried out in November 2018 by Dr Ho, Dr Umerah and Ms King into the Trust’s IT systems to obtain the footprint evidence, which was not disclosed to Dr Al-Obaidi at the time although Mr Phillips told him about it and Dr Al-Obaidi did not see the evidence until January 2019. Mrs Justice Laing found that the Trust had made an error of judgment in investigating the footprint evidence outside the framework of the MHPS and in not disclosing it to Dr Al-Obaidi. The Trust had many opportunities to disclose this information but did not do so. Dr Ho was wrong to decide that the evidence was not relevant and that Dr Al-Obaidi did not need to be told about it, though he was reasonably entitled to conclude that the evidence was not decisive. Dr Ho was also partly wrong in describing the material as fresh evidence from Dr Al-Obaidi when the Trust had had it since November 2018 and had instigated the investigation that produced it. The MHPS did not permit the case manager to instigate or be involved in an investigation in this way. Such conduct was likely to and did cause Dr Al-Obaidi to doubt that the approach of the Trust and Dr Ho to the disciplinary process was scrupulously fair, as Dr Ho accepted in cross-examination. However, there was no evidence that Dr Ho acted in bad faith. The position might have been different if the footprint evidence had exonerated Dr Al-Obaidi, but in the judge’s judgment it did not do so. This irregularity was nothing like as serious as the involvement of Mr Wishart contrary to an express undertaking in the Chhabra case. The judge did not consider that this error was a procedural irregularity of such seriousness as to justify the grant of an injunction, either on its own or cumulatively with other irregularities.

Dr Al-Obaidi further complained about the involvement of Dr Haigh, an independent medical director from another NHS Trust, whose views were sought by Dr Ho in circumstances where the MHPS made no provision for an independent third party to express a view on whether there was a case to answer. Mrs Justice Laing accepted Dr Ho’s evidence that he was understandably concerned about criticisms made by Martin Spencer J in the first interim injunction application, that he took appropriate advice, and that he concluded it would be sensible to ask an independent doctor for advice as a procedural safeguard. The judge did not consider there was anything devious or unfair about this. It was not suggested to Dr Ho in cross-examination that he acted in bad faith and the judge had no hesitation in finding that he did not. This procedural irregularity was very minor and not serious enough to justify the grant of an injunction either on its own or cumulatively with other irregularities.

Dr Al-Obaidi also relied on delay. Mrs Justice Laing acknowledged that there had been a good deal of delay, some caused by the litigation, some by the need to involve independent experts who had other commitments, further delay caused by the need to ask Mr Ireland to produce a report on the footprint evidence (the need for which should have been clear in November 2018), and by the addition of charge 8b after Dr Ali’s hearing and appeal. Apart from the delay caused by the footprint evidence, the delay, while regrettable, was not in the judge’s judgment culpable. The judge appreciated that the delay would have caused and would continue to cause Dr Al-Obaidi great anxiety, but she did not consider that the delay was such as to prevent a fair disciplinary hearing, nor that it was a procedural irregularity serious enough to justify an injunction either on its own or cumulatively with other irregularities.

Finally, Dr Al-Obaidi alleged bad faith against Dr Ho, Ms King, Dr Umerah and Mr Ireland. Only Dr Ho gave evidence. Mrs Justice Laing observed that Dr Ho gave his evidence in a balanced way, made concessions where appropriate, and on many issues rightly declined to speculate. It was not directly

Skidmore v Dartford and Gravesham NHS Trust [2003] UKHL 27; [2003] ICR 721
Ardron v Sussex Partnership NHS Foundation Trust [2018] EWHC 3157 (QB)
Braganza v BP Shipping [2015] UKSC 17; [2015] 1 WLR 1661
Malik v BCCI [1998] AC 20