Simon Gorton QC successfully represents Alder Hey NHS Foundation Trust at Royal Courts of Justice

June 21, 2021

Simon Gorton QC from Exchange Chambers has successfully acted for Alder Hey NHS Foundation Trust at the Royal Courts of Justice (Mrs Justice Thornton).

The Claimant is a consultant paediatric neurosurgeon employed by the Defendant, Alder Hey Children’s NHS Foundation Trust, since 2009.  The claim arose out of the death of a patient, Patient A, in December 2017. The Claimant was the consultant, in charge and on-call, when Patient A required operative procedures and her condition deteriorated.

The claim concerned the Defendant’s conduct of a disciplinary investigation against the Claimant rather than the merits of the allegations against the Claimant in relation to her clinical care of Patient A.

During the course of the internal investigation, the Claimant sought disclosure of a number of documents from the Case Investigator appointed by the Defendant, prior to attending an interview to give her account of events. Some of the material sought was provided. Information which was not provided included correspondence with Patient A’s parents and statements from staff produced for an earlier investigation into Patient A’s care.  Matters reached a stalemate with the Claimant declining to attend an interview without sight of the documents and the Defendant indicating its intention to conclude the investigation without further input from the Claimant if she remained unwilling to attend an interview. The Claimant subsequently applied to the Court for an injunction to require the Defendant not to conclude the investigation prior to disclosing the documents and a declaration in respect of her contractual rights.

The High Court ruled that the Claimant was not permitted to see all materials held by the Case Investigator prior to investigatory review.

The Defendant’s decision not to disclose the documents sought did not breach the express terms of the Claimant’s contract. Nor was there a breach of the implied term of trust and confidence. The decision of the Case Investigator as to the relevance of the correspondence sought was primarily a matter for her discretion, subject to rationality review by the Courts. There was no breach of any requirement to consult with the Claimant about the information to be collected for the investigation and it was not therefore necessary to consider the contractual status of the provision.

This is an important case under MHPS dealing with the scope and duty of disclosure of Case Investigators prior to an investigatory interview.

The Claimant is seeking permission to appeal to the Court of Appeal.

Simon Gorton QC was instructed by Emlyn Williams at Weightmans.