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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Chhabra v West London Mental Health NHS [2012] EWHC 1735 (QB) (01 June 2012) URL: http://www.bailii.org/ew/cases/EWHC/QB/2012/1735.html Cite as: [2012] EWHC 1735 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		1 June 2012

THE JUDGE:

1. This is a claim for an injunction to restrain the defendant from going ahead with disciplinary charges relating to breaches of patient confidentiality while criticisms of the claimant are on foot in separate capability proceedings. Patient confidentiality is rightly viewed as a high priority by all concerned in this case. The public needs to be protected through professional standards which are maintained in relation to patient confidentiality.
2. Throughout the proceedings the claimant has been represented by Mr Mark Sutton QC and by Miss Betsan Criddle and the defendant by Miss Louise Chudleigh.

Introduction: The people in the case.

3. The West London Mental Health Trust has three hospitals, Broadmoor and St Bernard's Ealing West London being two of them. Dr Chhabra is a consultant forensic psychiatrist at Broadmoor. Currently she is on non-consultant duties at St Bernard's. A consultant forensic psychiatrist deals with those in our community who have a mental condition and have been involved with the criminal justice system as offenders. Dr Nicholas Broughton, who is the principal actor on behalf of the defendant, is the Medical Director for the Trust. Previously he was involved in the Trust (London) Forensic Service. Dr Chhabra gave evidence herself and Dr Broughton did for the Trust.
4. Also involved in this case are the following people whose names will appear in this judgment: Dr Sean Bhattacherjee is a consultant forensic psychiatrist who led at Broadmoor. Dr Kevin Murray is the Clinical Director at Broadmoor. Miss Leanne McGee is the Executive Director of High Secure Services. Dr Aideen O'Halloran is a consultant forensic psychiatrist and was lead clinician at the Orchard Unit to which the claimant was sent. Dr Amanda Taylor is a consultant forensic psychiatrist at Southern Health NHS Foundation Trust, appointed to investigate concerns brought by the Trust against the claimant. Dr Christine Wee was at the time chair of the local negotiating committee which is described as the staff side of the procedures, to which I will come in due course. Dr Richard Bayney was the acting chair. Dr Steven Boyle was a lead adviser at the National Clinical Assessment Service NCAS, the body charged with investigating and reporting and assisting on and drawing up plans for doctors where there has been a concern about their practice. Mr Geoff Rose is a non-executive director appointed for the purposes of this case to take one specific role. Miss Ruth Lewis is the Director of Organisation, Development and Workforce and Mr Alan Wishart is Associate Director of HR.

The issues.

5. At the outset the issues were presented as being substantially agreed and in the closing submissions of Miss Chudleigh they are said to be as follows:

1) Whether it was permissible on 12/8/11, under the terms of the contract for the Trust to characterise the allegations of breach of patient confidentiality as misconduct rather than incompetence or a lack capability.

2) Whether it was permissible on 12/8/11, under the terms of the contract, for the Trust put a case of misconduct to a conduct panel arising from the alleged breaches of patient confidentiality.

3) Whether the Trust was in breach of contract by not dealing with the matters under its Fair Blame procedure.

4) Whether the failure to adequately investigate an anonymous complaint made to the GMC … and the obtaining of legally privileged documents by the Trust give rise to a perception of an intention to dismiss the Claimant and if so, whether this breached the implied term of trust and confidence and whether the Court should grant an injunction..."

6. As I will explain, I do not consider that accurately describes the issue because it is common ground that the date of reference is 12 August 2011 and it is the decision made by Dr Broughton on that day in writing which is the subject of the legal proceedings. It is that decision which is challenged and not a more general characterisation of the activity of the Trust.
7. By way of a short background, the claimant has been employed substantively in the role of consultant forensic psychiatrist since 1 September 2009. She previously was a locum. Concerns were brought to the Trust's attention and the Trust decided to conduct a disciplinary hearing to consider matters of alleged gross misconduct relating to breaches of confidentiality towards patients. That was scheduled for 9 March 2011 and an agreement was reached in the shadow of legal proceedings for it to be put off pending a speedy trial today.
8. Patient confidentiality was one set of matters looked at by Dr Taylor during her investigation, as required by the procedures which. Other matters which were agreed squarely to relate to performance and capability were also considered by her. Very significant parts of the follow-up from Dr Taylor's report by way of the National Clinical Assessment Service have been completed. It is in four parts and, as I understand it, two and a half or three of those have now been completed.
9. The dispute between the parties relates to the distinction between criticisms of the claimant's conduct and criticisms of her performance and capability and whether or not these matters divide so that conduct goes down one road and performance and capability down another. These are matters which it is agreed by the parties are to be determined as a matter of contract and not as a matter of discretion and within a margin of appreciation. The question is: to what procedures is the claimant entitled? In the context of the contract a number of breaches is said to have occurred. That includes the characterisation of the breaches of confidentiality as to do with conduct. Alternatively, if they are, whether they should have been put together with the performance criticisms and together moved on in the appropriate procedure. There are some subsidiary issues relating to the obtaining of privileged communications between the claimant and her legal advisers by the Trust. They are very much secondary.

The procedures.

10. I start with the written procedures. By a contract of employment dated 26 October 2009 the claimant was engaged by the Trust as a consultant with effect from 16 October 2009 with continuous employment from 1 April 2008, appointed to Broadmoor. The terms of the contract include the following:

"3 General Mutual Obligations

"Whilst it is necessary to set out formal employment arrangements In this contract, we also recognise that you are a senior and professional employee who will usually work unsupervised and frequently have the responsibility for making important judgements and decisions. It is essential therefore that you and we work in a spirit of mutual trust and confidence. You and we agree to the following mutual obligations in order to achieve the best for patients and to ensure the efficient running of the service:

• to co-operate with each other;

• to maintain goodwill;

• to carry out our respective obligations in agreeing and operating a Job Plan;

• to carry out our respective obligations In accordance with appraisal arrangements;

• to carry out our respective obligations in devising, reviewing, revising and following the organisation's policies, objectives, rules, working practices and protocols."

11. One of the important aspects of the claimant's contract is her right to be treated in accordance with the procedures should any criticisms be made of her. From the middle of the last decade there has been in force a document which represents a sea change in the way in which medical practitioners are to be dealt with in the context of criticisms of their practice. To that end there was introduced at national level a policy called Maintaining High Professional Standards in the Modern NHS ("MHPS"). This was to move away from much criticised procedures which had existed under different formulations within the health service and to provide a wholly new regime. It provides separately for the conduct of hearings and disciplinary matters and the procedures for dealing with issues of capability. It therefore superseded the old provisions under different health service circulars and the key changes are summarised in it in the following way:

"The key changes are that:

the distinction between personal and professional misconduct is abolished. Doctors and dentists employed in the NHS will be disciplined for misconduct under the same locally based procedures as any other staff member;

there is a single process for handling capability issues about the practitioners professional competence closely tied in with the work of the National Clinical Assessment Authority;

Health Issues are routinely dealt with through the occupational health service;

The employing Trust is squarely responsible for the disciplining of its medical and dental staff- not outsiders;

There is scope bring in expert advice for panels considering capability issues;

The capability panel will be handled by an independent chair;

The same disciplinary procedures will apply to all doctors and dentists employed in the NHS."

12. It is a pristine document aimed at changing culture, for it says:

"4. But to work effectively these need to be supported by attitudes and working practices which emphasise the importance of doctors and dentists keeping their skills and knowledge up to date; maintaining their competence; and which support an open approach to reporting and tackling concerns about doctors' and dentists' practice. The new approach recognises the importance of seeking to tackle performance issues through training or other remedial action rather than solely through disciplinary action. However it is not intended to weaken accountability or avoid disciplinary action where there is genuinely serious misconduct."

13. This is the model upon which local determination of these matters will take place. In short it is to take under the wing of the employing authority responsibility for dealing with criticisms of doctors so that there is a very close relationship between the employing authority and the procedures. So these national guidelines are replicated locally. What is said in the national guidelines relating to the local conditions is this:

"III • GUIDANCE ON CONDUCT HEARINGS AND DISCIPLlNARY PROCEDURES

"Codes of Conduct:

"4. Every NHS employer will have a Code of Conduct or staff rules which should set out acceptable standards of conduct and behaviour expected of all its employees. Breaches of these rules are considered to be 'misconduct'. Misconduct can cover a very wide range of behaviour and can be classified in a number of ways, but it will generally fall into one of four distinct categories:

A refusal to comply with reasonable requirements of the employer.

An infringement of the employer's disciplinary rules including conduct that contravenes the standard of professional behaviour required by doctors and dentists by their regulatory body.

The commission of criminal offences outside the place of work which may, in particular circumstances, amount to misconduct.

Wilful, careless, inappropriate or unethical behaviour likely to compromise standards of care or patient safety, or create serious dysfunction to the effective running of a service.

"5. Examples of misconduct will vary greatly. The employer's Code of Conduct should set out details of some of the acts that will result in a serious breach of contractual terms and will constitute gross misconduct, and could lead to summary dismissal. The code cannot cover every eventuality. Similarly the ACAS Code of Practice provides a non-exhaustive list of examples. Acts of misconduct may be simple and readily recognised or more complex and involved. Examples may include unreasonable or inappropriate behaviour such as verbal or physical bullying, harassment and/or discrimination in the exercise of their duties towards patients, the public or other employees. It could also include actions such as deliberate falsification or fraud…

"7. Failure to fulfil contractual obligations may also constitute misconduct. For example, regular non-attendance at clinics or ward rounds, or not taking part in clinical governance activities may come into this category. Additionally, instances of failing to give proper support to other members of staff including doctors or dentists in training may be considered in this category."

14. The way in which this was done at the Trust was to implement two policies, D4 and D4A. D4A is the one which we will be most concerned with. It is described as a policy for handling concerns about a doctor's performance, including guidance on disciplinary procedures. It is presented as an agreement between the Trust and the local negotiating committee, the staff side, and therefore represents, it seems to me, either a collective agreement or a clear policy incorporated into the contract of the relevant practitioners. The procedure has to be read with the disciplinary policy D4. The outline is that all serious concerns will be registered with the Chief Executive and that a case manager be appointed. The first thing is to decide is whether a problem is identified:

"1.8. The first task of the case manager is to identify the nature of the problem or concern and to assess the seriousness of the issue on the information available and the likelihood that it can be resolved without resort to formal disciplinary procedures. This is a difficult decision and will not be taken alone but in consultation with the Director of Human resources, the Medical Director and the National Clinical Assessment Service. The NCAS asks that the first approach to them should be made by the Chief Executive or Medical Director.

"1.9. The case managers should explore the potential problem with the NCAS to Consider different ways of tackling the matter internally. If the issue is recognised as a 'systems problem' then this may require the involvement of an outside body other than the NCAS

"1.11. Having discussed the case with the NCAS, the manager will decide whether an informal approach can be taken to address the problem, or whether a formal investigation will be needed. Where an informal route is chosen the NCAS will still be involved until the problem is resolved. This can include NCAS undertaking a formal clinical performance assessment when the doctor, the Trust and NCAS agree that this could be helpful in identifying cause of the problem and possible remedial steps. If the NCAS is asked to undertake an assessment of the doctor's practice, the outcome of a local investigation may be made available to inform the NCAS's work."

15. There is then a task to be performed by a case investigator who is responsible for leading the investigation into any allegations or concerns about a practitioner, establishing the facts and reporting the findings (see paragraph 1.13). What is his or her role? This is prescribed in the following way:

"1.14. The case investigator does not make the decision on what action should be taken nor whether the employee should be excluded from work and will not be a member of any disciplinary or appeal panel relating to the case.

"1.15 The practitioner concerned must be informed in writing by the case manager, as soon as it has been decided, that an investigation is to be undertaken, the name of the case investigator and made aware of the specific allegations or concerns that have been raised. The practitioner must be given the opportunity to see any correspondence relating to the case together with a list of the people that the case investigator will interview. The practitioner must also be afforded the opportunity to put their view of events to the case investigator and given the opportunity to be accompanied.

"1.16. At any stage of this process - or subsequent disciplinary action - the practitioner may be accompanied in any interview or hearing by a companion. In addition to Statutory rights under the Employment Act 1999, the companion may be another employee of the NHS body; an official or representative of the British Medical Association, or a defence organisation, or a friend, partner or spouse. The companion may be legally qualified but he or she will not be acting in a legal capacity.

"1.17. The case investigator has discretion on how the investigation is carried out but in all cases the purpose of the investigation is to ascertain the facts in an unbiased manner. Investigations are not intended simply to secure evidence against the practitioner as information gathered in the course of an investigation may clearly exonerate the practitioner or provide a sound basis for effective resolution of the matter…

"1.19. The case investigator will complete the investigation within 4 weeks of appointment and submit their report to the case manager within a further 5 days. The report of the investigation will give the case manager sufficient information to make a decision whether:

There is a case of misconduct that should be put to a conduct panel;

There are concerns about the practitioner's health that should be considered by the NHS body's occupational health service;

There are concerns about the practitioner's performance that should be further explored by the NCAS;

Restrictions on practice or exclusion from work should be considered;

There are serious concerns that should be referred to the GMC;

There are intractable problems and the matter should be put before a capability panel;

No further action is needed."

16. It can be seen under paragraph 1.19 that the case manager, in this case Dr Broughton, has to make a decision and, so far as it is relevant to our case, it is as between the first, the third, the sixth and the seventh bullet points above. That is a matter which is to be decided upon the material provided by the investigator for it is the investigator's task to provide the case manager with sufficient information for him to make the decision. When there has been a local investigation, NCAS is involved and this is provided in by paragraphs 120 and 121:

"1.21. The focus of the NCAS's work is therefore likely to involve performance difficulties which are serious and/or repetitive. That means:

Performance falling well short of what doctors could be expected to do in similar circumstances and which, if repeated, would put patients seriously at risk;"

17. Since this is the framework which follows the MHPS, conduct and disciplinary matters are together provided for under part 3 of code D4A and there is this:

"3 CONDUCT AND DISCIPLINARY MATTERS

"Introduction

"3.1. Misconduct matters for doctors and dentists, as for all other staff groups, are dealt with under the Trust's disciplinary policy and procedure, D4. However, where any concerns about the performance or conduct of a medical practitioner are raised, the Trust will contact the National Clinical Assessment Service (formerly NCAA) for advice before proceeding.

"3.2. Where the alleged misconduct being investigated under the Trust's Disciplinary Policy relates to matters of a professional nature, or where an investigation identifies issues of professional conduct, the case investigator must obtain appropriate independent professional advice. Similarly where a case involving issues of professional conduct proceeds to a hearing under the employer's conduct procedures the panel must include a member who is medically qualified and who is not currently employed by the organisation. The Trust will agree the selection of the medical panel member with the Local Negotiating Committee chair…

"3.4. The Trust's Disciplinary policies & procedures, D4 sets out acceptable standards of conduct and behaviour expected of all its employees. Breaches of these rules are considered to be 'misconduct' and examples are set out in the procedure. Examples of issues that should be investigated under this procedure dealing with capability are set out in paragraph 4.4 below."

18. I think the reference in the last line above is to paragraph 4.3. In part 4 there is then a specific procedure for dealing with issues of capability. Capability and performance seem to be used interchangeably within these procedures and this is how they are presented:

"4.1. There will be occasions where the Trust considers that there has been a clear failure by an individual to deliver an adequate standard of care, or standard of management, through lack of knowledge, ability or consistently poor performance. These are described as capability issues. Matters that should be described and dealt with as misconduct issues are covered in part 3 of this procedure.

"4.2. Concerns about the capability of a doctor or dentist may arise from a single incident or a series of events, reports or poor clinical outcomes. Advice from the NCAS will help the Trust to come to a decision on whether the matter raises questions about the practitioner's capability as an individual (health problems, behavioural difficulties or lack of clinical competence) or whether there are other matters that need to be addressed. If the concerns about capacity cannot be resolved routinely by their line manager, the matter must be referred to the NCAS before the matter can be considered by a capability panel (unless the practitioner refuses to have his or her case referred). The Trust will also involve the NCAS in all other potential disciplinary cases…

"4.5. It is inevitable that some cases will cover both conduct and capability issues. It is recognised that these cases can be complex and difficult to manage. If a case covers more than one category of problem, they should usually be combined under a capability hearing although there may be occasions where it is necessary to pursue a conduct issue separately. Although it is for the Trust to decide upon the most appropriate way forward having consulted the NCAS in the event of a dispute the practitioner may make representations to the designated board member. The individual is also entitled to use the Trust's grievance procedure if they consider that the case has been incorrectly classified. The Individual may also seek advice from the Chair of the LNC with respect to their concerns."

19. It is a mandatory requirement before instigating the procedures that advice will be taken from NCAS (see paragraph 4.6). What is described as the pre-hearing process is conducted in this case by Dr Taylor and an opportunity for comments from the criticised practitioner must be made available, including any mitigation. The obligation on the case manager is this:

"4.11. The case manager will decide what further action is necessary, taking into account the findings of the report, any comments that the practitioner has made and the advice of the NCAS. The case manager will need to consider urgently:

Whether action under Part 2 of the procedure is necessary to exclude the practitioner; or

To place temporary restrictions on their clinical duties.

The case manager will also need to consider with the Medical Director and/or the Human Resources Director whether the issues of capability can be resolved through local action (such as retraining, counselling, performance review). If this action is not practicable for any reason the matter will be referred to the NCAS for it to consider whether an assessment should be carried out and to provide assistance in drawing up an action plan. The case manager will inform the practitioner concerned of the decision immediately and normally within 10 working days of receiving the practitioner's comments.

"4.12. The NCAS will assist the Trust in drawing up an action plan designed to enable the practitioner to remedy any lack of capability that has been identified during the assessment. The Trust will facilitate the agreed action plan (which has to be agreed by the Trust and the practitioner before it can be actioned). There may be occasions when a case has been considered by the NCAS, but the advice of its assessment panel is that the practitioner's performance is so fundamentally flawed that no educational and/or organisational action plan has a realistic chance of success. In these circumstances, the case manager will make a decision, based upon the completed investigation report and informed by the NCAS advice, whether the case should be determined under the capability procedure. If so, a panel hearing will be necessary.

"4.13. If the practitioner does not agree to the case being referred to the NCAS, a panel hearing will normally be necessary."

There is then a specific set of procedures which must be followed if there is to be a capability hearing.

20. Standing back from this for a moment, the point is that there must be full involvement with NCAS before a case manager goes down any of the further routes following an expression of concern. D4A is interlocked with D4, which is the policy on discipline applicable throughout the Trust. It is headed in paragraph 8 of D4: "Behaviour/Performance which may result in Disciplinary Action" and there is a categorisation of offences, as is common in most substantial employment environments,. These are minor misconduct and misconduct (8.2), serious misconduct (8.3), gross misconduct (8.4) which includes the following:

"8.4.1 Some instances of misconduct/poor performance will be so serious as to potentially make any further relationship and trust between the Trust and the employee impossible. These fall within the category of gross misconduct and would typically include: …

ii. Serious breaches of Information Governance with regard to Data Protection, Confidentiality and Information Security…"

21. It is envisaged in this disciplinary policy that there may be informal action (see paragraph 9), and there is also a procedure called fair blame which is described in the following way:

"'FAIR BLAME' PROCEDURE.

"A different formal procedure can apply when the potential conduct or performance issues which have arisen do not constitute serious or gross misconduct. These can be resolved within a procedure which seeks to identify both the cause and responsibilities in an open and constructive way and agree remedial action which ensures both the organisation and the individual learns, avoiding similar breaches in the future. This 'Fair Blame' Procedure is described in Appendix 5.

"The Fair Blame procedure can be considered for use by a Commissioning Manager when the investigation report, originally progressed outside Fair Blame, suggests misconduct/performance issues that can be considered within the Fair Blame remit, even where originally they were thought to be more serious.

"Exceptionally, the fair blame principles can be used in cases of more serious misconduct where there is full agreement between the Trust and the full-time officer of the trade union concerned."

22. I have come across this procedure before since I heard an appeal at the Employment Appeal Tribunal against this Trust Sarkar, which was also the subject of an appeal to the Court of Appeal. So I understand how this policy works and it seems to me that it is a very useful way of handling disciplinary matters in a sensitive way where responsibility is accepted by a person criticised. An insight into what happens at a disciplinary hearing is given in appendix 7 and of note is this:

"The investigator, or the chair of the panel if the investigator is not required to attend, will detail the nature of the alleged offence and the salient points of the evidence. This may include calling witnesses."

23. It looks as though in the ordinary case the investigator will present and conduct the case against the practitioner, with the practitioner also being represented.
24. Part and parcel of this environment is a staff charter, relevant provisions of which are as follows:

"8. Preserve confidentiality. Uphold the Trust's policies on Freedom of and Disclosure of Information. Do not abuse knowledge. Use appropriate private locations for discussions of a personal nature and use e-mail correspondence cautiously…

"6. When things go wrong to expect the Trust to try and learn from mistakes and not to adopt a punitive or punishing management style. The Trust will follow-up any untoward or serious incident in accordance with its policies, support individuals adversely affected by these and will seek to learn from such incidents to improve future practice. Disciplinary action will only be pursued where absolutely necessary and the Trust will seek to promote a Fair Blame Culture as part of its approach to becoming a learning organisation."

Those are the procedures which will take up a good deal of this case.

The documentary evidence.

25. Of assistance in looking at the application and meaning of these procedures is the evidence specific to this case. Effectively the claimant began her substantive post as a consultant forensic psychiatrist at Broadmoor on 1 September 2009. There was some negative feedback about her as reported by her manager, Dr Bhattacherjee, on 28 October 2009. An allegation was subsequently made on 6 April 2010 that there had been complaints about the claimant falsifying feedback, and other complaints. There was then to be on 1 October 2010 what is described as a 360 degree appraisal process and matters to do with a formal process might be followed up if there continued to be concerns expressed about the claimant. On the same day, 1 October 2010, a complaint was made by a solicitor, Tam Gill. I say at once that this was rejected, but nevertheless it formed an important part of the early parts of this case because Dr Broughton on 26 October 2010 decided that the matter was to be investigated under the disciplinary policy D4.
26. On 1 December 2010 a civil servant made a complaint. She was then known as Miss Leech. It was a complaint of breach of confidentiality which she had observed on a train from Broadmoo and the claimant was suspended (and sometimes the word "excluded" is used) with effect from her written notification on 2 December. On the same day Dr Broughton wrote to those representing the claimant that there were to be three matters of concern investigated in accordance with the policy. Dr Taylor was commissioned to act as investigator. On 8 December 2010 Miss Lewis indicated to Dr Murray that a new allegation should be added to Dr Taylor's terms of reference and this was that there was misrepresentation by the claimant of feedback procedures.
27. On 15 December 2010 a case conference was conducted by most of the actors in this drama and it was decided to exclude the claimant from her practice because of what were there specifically described as errors of judgment. Terms of reference were drawn up and on 20 December 2010 they were provided to the claimant. In introducing the subject Dr Broughton said this:

"I attach for your information the terms of reference regarding the investigation that will be conducted under the Trust's disciplinary procedure D4A. I also attach a copy the D4A policy.

"You will note from the contents of the terms of reference that there are a number of allegations that will need to be considered in order to formulate an opinion as to whether or not there are concerns regarding professional misconduct."

28. Attached to the letter were the terms of reference and I will reproduce them in full:

"Investigation under the Disciplinary Policy D4A

"Terms of Reference

"Person who the allegations are against:

"Chhabra, Consultant Forensic Psychiatrist

"Summary of the content of the investigation:

"1. A letter of complaint was received from Ms J Leech, Head of Secure Services Policy, Department of Health, who has raised concerns regarding breaches of patient confidentiality by Dr Chhabra. In her complaint Ms Leech advised that whilst travelling on public transport she witnessed Dr Chhabra discussing openly Broadmoor patients with another colleague. Also Dr Chhabra had files on view containing information relating to Broadmoor patients which were clearly visible to her and other travelling passengers.

"2. Further to the above complaint based on analysis or one of Dr P Chhabra's recent dictation tapes it is alleged Dr Chhabra has undertaken dictation involving Broadmoor patients whilst in public areas which demonstrates disregard for patient confidentiality.

"3. A complaint had been received from a Broadmoor patient's solicitor, Ms A Gill. It is alleged by Ms Gill that Dr P Chhabra has falsified the facts and then misrepresented the patient's wishes to cover for an error in not inviting Ms Gill to the patient's CPA although the patient had requested the solicitor to do so. Ms Gill has also raised concerns regarding Dr Chhabra's behaviour in that during conversations with Dr Chhabra Ms Gill has described her as being rude and dismissive.

"4. During a 360 degree appraisal process it is alleged Dr Chhabra had falsified some of the content of the feedback received from other members of staff regarding her performance. As a result Dr Chhabra had misled her clinical Manager.

"5. Concerns had been raised by other members of the multi-disciplinary team regarding Dr Chhabra's behaviour towards them.

"Investigation terms of reference:

"1. An investigation will be conducted to consider the above allegations as to whether or not there are concerns regarding professional misconduct.

With reference to the GMC's Good Medical Practice these allegations will be considered as to whether there are failures in the following areas;

Breaches of patient confidentiality

Concerns with regard to Dr Chhabra being honest and trustworthy

Concerns regarding Dr Chhabra's conduct in relation to other work colleagues."

29. It will be at once are apparent that the division is as between 1 and 2, which have been described as the confidentiality issues, 4 and 5, which relate to concerns with medical colleagues, and 3, which is the complaint by the solicitor. As I have indicated, that went no further, for reasons which I will explain.
30. An application was made on 10 February 2011 for an injunction. At the same time a complaint was made that Mr Wishart should have no further part in these proceedings as an HR adviser and that he should be replaced. Two things then happened. Mr Wishart would play no further part in the investigation process following a written agreement on 24 February 2011. Just prior to that Hickinbottom J heard the application and the matter was adjourned on agreed terms. Representations could be made to Mr Rose about the claimant's continued exclusion. In fact Mr Rose did deal with the matter and it was sought from him that she should be allowed to return to St Bernard's. She was - under the supervision of Dr O'Halloran.
31. On 9 March 2011 Dr Broughton wrote to the claimant's solicitors summarising the concerns which they had. The claimant was interviewed by Dr Taylor on 17 March 2011, and it will be recalled from the procedures that this is now three months into what is supposed to be a four-week process. The following week, on 29 March 2011, Dr Taylor communicated with Mr Wishart and she said this:

"The meeting with Dr C went OK - she did admit to the confidentiality breaches but was still [trying to make excuses] but she has done some work on it and is unlikely to make the same mistake again…

"I am more than happy to interview Dr V and Prof M over the phone - would be easier for me - I am on leave for the next 2 days but can speak to you Fri pm with my diary. It would then be helpful to meet to put the report together - I do have an outline - however I still feel a bit unsatisfied that the teams (sic) complaints are really their word against hers and not enough to remove her. She really needs ongoing support and supervision if she is to remain as a consultant. I am not optimistic and do think that you will be in the same situation within a couple of years but you have to give her a chance."

32. What this indicates is that there was communication with Mr Wishart, contrary to the assurance that he would not be involved with the investigation and that the investigation is ongoing, for there is still the projection by Dr Taylor of interviews with two other witnesses. There is also an indication of Dr Taylor's then view that the claimant's actions in relation to confidentiality were a mistake and it would not be repeated.
33. On 19 April 2011 a new allegation was made on behalf of the Trust contending that the claimant had breached the Data Protection Act by obtaining documents. On the same day Dr Broughton commissioned the possibility of Dr Murray being a member of a panel to conduct a disciplinary hearing. In other words, before the Taylor report Dr Broughton was envisaging a disciplinary panel.
34. On 20 April 2011 an e-mail was sent by Miss McGee to Dr Murray and Mr Wishart which attached what are accepted to be legally privileged documents which they had obtained from the claimant's e-mail inbox. They are legally privileged because they by their title indicate the litigation which is going on. That formed a separate strand of the criticisms of the claimant and by the claimant of the respondent.
35. On 1 June 2011 Dr Taylor sent an e-mail to Mr Wishart enclosing a draft report. This report was the subject of a number of substantial suggested amendments by Mr Wishart. Of relevance is the suggestion that the adjective "serious" be inserted in at least three places where it had not been found in Dr Taylor's original document. It was described by Mr Sutton in his cross-examination of Dr Broughton as an attempt to pepper up the document. Plainly one can see through the tracked changes those suggestions accepted by Dr Taylor and those rejected, but I accept the submission as a matter of analysis that there is not one suggestion made by Mr Wishart by way of lessening the impact and all of them are by way of stiffening of Dr Taylor's report.
36. On 9 June 2011 the Taylor report was sent and because it is, as I hold, the basis upon which the action of Dr Broughton could go forward, I will spend some time reproducing it. It is a D4A investigation and Dr Taylor correctly dissects the allegations into three parts; confidentiality, Miss Gill and capabilities. She deals first with terms of reference 1 and 2. Here she says the following:

"4.1 Confidentiality

Ms Jo Leech, Head of Secure Services Policy at the Department of Health, wrote a letter expressing concern regarding breaches of patient confidentiality to, initially, the security department at Broadmoor Hospital, which was then forwarded on to the Medical Director at West London Mental Health. Her letter to the Trust is dated 2 December 2010. She had described having been on a train on the 24 November 2010 and had overhead a conversation by two doctors. One of the doctors was reading a medical report on a patient whose name and details could be clearly identified. It was clear from the conversation between the two doctors that they worked at Broadmoor Hospital.

"4.2 In interview and in her original letter Ms Leech described the circumstances of the railway journey. She had been sitting directly opposite two females who were talking and she became aware of the conversation because of the mention of Broadmoor Hospital and Dr Gwen Adshead. Ms Leech had previously worked at the hospital. During the train journey one of the doctors, now Identified as Dr Chhabra, read reports on a patient. She had been holding them on her lap with an A4 pad of paper and had turned pages in a way that Ms Leech could clearly read the name (Mr E). She was also able to see the Section under which he is detained and other details including that this was a CPA report. Ms Leech reported that the train was crowded at the time and Dr Chhabra had this information on her lap for the most of the journey. Dr Chhabra's travelling companion also had documents but these were held close to her and no information was visible and during the journey she did place them in a bag. Ms Leech was with a colleague on the train journey and neither of them said anything to Dr. Chhabra at the time.

"4.3 In addition to Ms Leech's complaint a member of secretarial staff had become anxious about confidentiality when she had been typing two tapes of Dr Chhabra's that included sounds consistent with a railway journey. The tapes lasted approximately 13 and 17 minutes and has now been typed with the sounds inserted. I have not listened to the tape myself.

"4.4 Jenny Meredith (Dr Chhabra's previous PA) also slated that Dr Chhabra made telephone calls to her while she was on her journey to work during which patient information would be discussed. She also reported that Dr Chhabra took out notes from the hospital in order to complete work at home.

"4.5 In interview with Dr Chhabra she admitted that she normally read notes on the train on her way to work but when no-one was sitting near her. She stated that on her way to work the train would often be empty. However, she did admit to reading the CPA notes on patient Mr E whilst on the train journey in November 2010. She was unaware of who was sitting opposite her but she was aware that the train was full. She had not been aware that the patient's name was visible but accepted Ms Leech's account. She did not appreciate at the time that her practise compromised confidentiality. Dr Chhabra also admitted to dictating two reports on the train. She explained that this occurred in one week when she had felt pressured by work and wanted to have reports completed in good time. She believed that she had ensured that there were no passengers close by. On the issue of Dr Chhabra making telephone calls to work, Dr Chhabra believed that these were not made in public places but in her own car. She was of the opinion that these were usually diary checks and lasted approximately less than a minute. She denied that she had discussed patient information to secretarial staff whilst in public places."

37. The conclusion of Dr Taylor on these matters is as follows:

"Conclusion

"4.6 Dr Chhabra has admitted to breaching patient confidentiality on two occasions by; 1. having patient documents clearly visible in a public environment and 2 dictating two reports which included patient sensitive information in a public arena. I would further conclude Dr Chhabra would have had to refer to patient information whilst undertaking this dictation. On that basis Dr Chhabra did not therefore make appropriate efforts to protect the patient's confidentiality. This is a breach of the GMC good medical practice guidance, particularly paragraphs 21(d) and 37. There is obviously a difference of opinion with respect to the telephone contact between Dr Chhabra and her PA with respect to the content of those discussions and when these discussions took place. Dr Chhabra stated that she has subsequently completed the online information governance training, however, she had previously attended Trust induction programmes which would have reminded her of information governance. Confidentiality is a clear responsibility of all those working within the healthcare professions and is a responsibility of all doctors as outlined in GMC's good medical practice. The investigation therefore upheld the first two complaints."

38. She returns to these matters in her summary and says this:

"7.1 In summary I have been asked to investigate a number of complaints about Dr Chhabra. The first of these complaints was concerning breaches in confidentiality. The investigation has found that these complaints can be upheld and Dr Chhabra has breached patients' confidentiality through the reading of notes and dictation in public areas on more than one occasion. Due to this and the nature of the working environment and patients at Broadmoor this is a serious breach of the GMC guidelines on confidentiality…

"7.7. It is therefore the investigation's opinion that the difficulties arising within the team are issues of capability which need to be addressed. It is clear from the investigation that much of this is a consequence of Dr Chhabra's inexperience and her lack of required leadership skills to perform at consultant level, particularly in a setting such as Broadmoor Hospital."

39. The third complaint, Tam Gill's, was rejected. The matters concerning Dr Chhabra's probity were rejected but matters of concern included team working, leadership skills, and so on. They were properly recorded by Dr Taylor. The outcome, as I hold it to be, is that Dr Taylor upheld the concerns in relation to breach of confidentiality which the claimant admitted, which were that and that she read documents which were visible and disclosed patient confidentiality in the presence of Miss Leech on the train and she dictated two reports on a train. Dr Taylor did not uphold the complaint that there had been a conversation disclosing patient confidentiality between Dr Chhabra and the person on the train who she was seated next to and she did not uphold the contention that Dr Chhabra had discussed patient information on the phone with her PA or secretary.
40. Dr Taylor did a second report and there are also other utterances by and attributed to Dr Taylor from which I form my view. It is this: Dr Taylor, where there was a dispute between two people about an event or a conversation, she was prepared to take the side of the practitioner unless there was clear evidence. Only a fragment of the allegations of breach of confidentiality was upheld by Dr Taylor and, as I see it, Dr Broughton did not appreciate the fine distinctions (yet distinctions they are) between what went to Dr Taylor and what came back from her. The report was given to the claimant on 27 June 2011 and two days later solicitors on her behalf set out her comments as sought. These correspond to what Dr Taylor found and what the claimant told me in her evidence. She says this:

"Paragraph 4

"1. I stand by my admissions and acknowledgments in relation to the breaches of confidentiality and in the circumstances do not propose to comment further on the events described in this section.

"2. I deeply regret my actions. I have learned and would never do it again. I again offer an unreserved apology.

"3. I have undertaken training since. I set out below details of the work I have done through the Department of Health website."

41. She then sets out a very substantial number of instruments which she has considered relating to confidentiality, including a reference to Caldicott. Caldicott is to do with information governance and the custodian of Caldicott at the Trust is Dr Broughton. She also reiterated that she read or re-read all of the relevant documents relating to confidentiality and also expressly said that she had undertaken further relevant courses and training.
42. Those matters went to Dr Broughton and he then issued his decision letter, which are the measures sought to be enjoined in these proceedings. He says this:

"I can confirm I have now had an opportunity to consider both Dr Taylor's investigation report and Dr Chhabra's response to that report, including the attachments to your letter of 29^th July. Having done so I am writing to formally advise you of how I intend to progress matters.

"It is clear the investigation report highlights serious concerns regarding Dr Chhabra's conduct in relation to a number of serious breaches of confidentiality.

"The report also raises concerns regarding capability in relation to the inability to communicate effectively with colleagues and/or patients and ineffective clinical team working skills.

"The issues of conduct and capability are unrelated and the conduct allegations are straightforward and discrete. I am therefore proposing to deal with them under the conduct procedure. The capability issues will require the involvement of NCAS and I will write to you separately to confirm how I intend to proceed with them. It is necessary to resolve the conduct issues, one way or another, before moving on to consider how we should address the capability concerns.

"The breaches of confidentiality set out in the investigation report and indicated in the terms of reference points 1. and 2. are potentially very serious allegations of misconduct, falling within paragraph 8.4 of Trust policy D4;

"8.4 Gross Misconduct .

"8.4.1 Some instances of misconduct/poor performance will be so serious as to potentially make any relationship and trust between the Trust and the employee impossible. These fall within the category of gross misconduct and would typically include:

Serious breaches of Information Governance with regard to Data Protection, Confidentiality and Information Security;

"As a result these allegations will be considered under the Trust's D4 policy and a panel will be arranged as per that procedure. The allegations to be considered are as follows:

1. Dr Chhabra breached patient confidentiality whilst reading notes and discussing patients whilst on public transport, full details of which appear in the investigation report.

2. Dr Chhabra undertook dictation on at least two occasions whilst completing mental health tribunal reports whilst on public transport, details of which appear in the investigation report.

3. Dr Chhabra whilst travelling to work on public transport would often call her secretary to discuss patient related matters breaching confidentiality, details of which appear in the investigation report.

4. After the commencement of the investigation, Dr Chhabra removed from the Broadmoor site a large number of documents relating to Broadmoor patients without seeking approval to do so or notifying her line manager of her intention to do so. In particular, she removed a copy of an entire patient's file, which was not required in order to consider the allegations that had been made against her. There are concerns as to how this information was removed form (sic) Broadmoor and how this information was provided to Dr Chhabra's representatives at the MPS and solicitors.

As this issue came to light during the investigation, our solicitors requested an explanation as to how the documents came to be removed from the Trust and sent to the legal advisers, but as at today none has been forthcoming. 1 would ask your client to provide her answers to the questions that have been raised and of course I will take them into account in preparing the management case, but in the continued absence of a response it is my view these matters can be raised and tested at a disciplinary hearing. Your client will be given an opportunity to answer the questions that have been put and the panel can then decide how it wishes to proceed based on what is said.

"Due the seriousness of the conduct allegations detailed above, I must advise Dr Chhabra that as these matters are being considered as potential gross misconduct the sanction of dismissal is an option for the disciplinary panel."

43. Again as a matter of analysis, it is possible to correlate what Dr Broughton says there with Dr Taylor's report. Numbered paragraph 1 is correct. There is a correct correlation in respect of reading patient notes on the train, but, as I have held, there was no finding by Dr Taylor that the claimant had breached patient confidentiality by discussing patients while on public transport. Again, the reference is to the investigation report and it is not there. The second paragraph is admitted by the claimant. As to the third, there is no finding by Dr Taylor of the claimant talking on the phone to her secretary to discuss patient related matters. As I have analysed, Dr Taylor did not uphold that criticism.
44. Paragraph 4 is the wholly new allegation, which was not put anywhere apart from here, and is included within the heading of "Gross Misconduct". Dr Broughton has chosen of the three levels of criticism identified in D4 the highest, gross misconduct. It is noted that the particular offence here is one which was inserted after the alleged commission of it. Nevertheless, Mr Sutton takes no point on that since Dr Taylor was linking the allegations to the GMC guidance on confidentiality and it is common ground that breaches of confidentiality can constitute gross misconduct in extreme cases. On the basis of that decision, Dr Broughton was obliged to bring in NCAS and forms were sought.
45. On 18 August 2011 Dr Taylor again communicated directly with Mr Wishart and she said this:

"I think your decision to separate the two issues is absolutely right. The NCAS solution is excellent - I had thought of that but was not sure that solutions were my remit. I really hope that she can see that as a positive way forward. The confidentiality issues have to be taken more seriously and addressed through the right routes- I was concerned that the capability issues would muddy the waters. I hope her solicitors see that you are being reasonable and trying to support her. Do you have any idea of timescales for the hearing- my diary is filling up- lots of shenanigans at work. There are some dates I will definitely not be available."

46. Following this there was a dispute about the issue which is before me, that is, the separation of conduct from capability, and there was a number of outlets for the ventilation of this concern. According to the code, matters could be raised through the grievance procedure. They were, at two levels and then through Mr Rose they were and rejected. I pay careful attention to what are effectively three organs of the Trust deciding on the classification issue, conduct versus capability, since they represent the view taken by the Trust in these proceedings. The local negotiating committee, Dr Wee being the actor responsible for this, did not accept the delineation that Dr Broughton set in place. Dr Wee's opinion was this:

"According to the independent investigation there were two clear issues upheld: Firstly a clear issue of capability with regards to communication, and poor and ineffective team skills; second, a breach of patient confidentiality on two occasions (one in November 2010) according the GMC good medical practice guidance. You asked me to give my opinion as LNC Chair on which of the disciplinary procedures to follow.

"The first issue was found to be a clear issue of capability according to the independent report. It should therefore be dealt with under D4A.

"The second issue is described as a breach of confidentiality. I contacted independent investigator on the 26^th September 2011; she described it as an issue of poor medical performance.

"In my opinion, it would help to take account of potential contributory factors behind the issues of poor medical performance before deciding on which disciplinary procedure to follow. According to the independent report she did not appreciate at the time that her practice compromised confidentiality. The doctor concerned also described work pressures as one of the reasons for her practice. The period of 2009 to 2010 was noted in the independent report as a period where she, as a new consultant, had poor medical support, inconsistent secretarial support and little peer support. She had not received appraisal to evaluate her work or progress as a new consultant through out (sic) her time in post. In my opinion, although the breach of confidentiality has been described by the trust as a conduct issue, underlying factors involved competence and therefore capability leading to the doctor's behaviour.

"I would also like trust to consider that there was no malice or intent to harm patients, avoid work or damage the trust in this Doctor's actions. At the time, she had demonstrated poor insight and awareness about her actions and their potential implications but has since admitted responsibility. The doctor has admitted to the breach and undergone retraining.

"I would like trust to further consider the opinion of the independent investigator; when I contacted her for clarification she described it as an issue of poor medical practice. The D4A protocol deals with poor medical performance. The protocol also states that many cases had aspects of capability and conduct and these were usually combined into one process. In my opinion, a capability hearing covering both issues could result in an improvement in her performance with minimal risk of repetition enabling her to return to work for the trust. The trust has already indicated that the issue of communication and poor and ineffective team skills would be dealt with under the D4A process as an issue of capability. I feel that the issue of confidentiality breach contains aspects of conduct and capability. Hence my advice would be to combine both these issues under the D4A process (D4A paragraph 4.5)"

47. What is important about this communication is that it involves Dr Wee's discussion with Dr Taylor and it records Dr Taylor's view, as well as of course Dr Wee's. This material in here has not been attacked: Dr Taylor told Dr Wee that what was going on was an issue of poor medical performance. That remained the position of Dr Wee and the LNC and Dr Bayney, counterposed to that of the Trust.
48. There was a second reiteration of Dr Taylor's opinion, again reported by Dr Wee, on 6 October 2011. It may be that she is referring to the same conversation, but she does say in terms that it was Dr Taylor's opinion that breach of confidentiality was a matter of poor medical performance and it was on that basis that Dr Wee was putting the LNC position.
49. The temperature in this case was turned up to high on 10 October 2011 by Dr Broughton's reply to Dr Wee, for he said this:

"You have Indicated in your letter that these breaches of confidentiality may have been as a result of underlying factors of capability namely: Dr Chhabra has argued that she was a new consultant, had poor medical support, there was inconsistent secretarial support and little peer support. Also no appraisal was undertaken and there were issues of high workload. On that basis, you believe that the underlying causes of the misconduct are issues of capability and the matter should be progressed under the capability procedures."

50. This represents the position Dr Broughton had at the time and had in his evidence: breach of the confidentiality provisions is a disciplinary offence because it is wilful. That position was accepted by Mr Sutton in cross-examining him. If it was the case, as Dr Broughton said, that gross misconduct as charged required wilfulness, this case did not reach that level on its face, as Dr Taylor had not included any matter such as that.
51. In the meantime, on 28 October 2011, some anonymous person referred criticisms of the claimant to the GMC. In due course the matter was investigated. The anonymous referrer was a member of the administrative staff of the Trust who has subsequently been dismissed, it is said, for fraud. The point is that this person is beyond reach for disciplinary process.
52. On 16 November 2011 Dr Taylor sent her second investigation report into the allegation that the claimant had breached confidentiality by disclosing case files to her solicitors. It was rejected by Dr Taylor and taken no further. Formally, paragraph 4 of Dr Broughton's charge sheet, is not proceeded with.
53. On 20 December 2011 Miss Lewis wrote to Dr Bayney of the LNC giving what she described as the view of the Trust, which corresponded to that of Dr Broughton, that the allegations of confidentiality breaches were wilful. The Trust proceeded to follow the NCAS guidelines by sending its referral to NCAS, which consists of an enlargement of the concerns relating to the claimant's practice and capability and a note of what else is going on. It is pointed out that there is an investigation which included a finding that patient confidentiality had been breached and that it will be addressed in due course. That document should have reached the claimant for her comments. It did not. On 17 January 2011 Dr Broughton confirmed the dumping of allegation 4, but no further separation of the matters in his original charge sheet, and so the case was to go ahead as a separate conduct hearing. The panel was disclosed. It includes a consultant in the same discipline as the claimant and two other persons.
54. As part of the NCAS procedure an agreement must be reached. It is made in the light of the terms of reference, but formally the vehicle for this matter being placed in the hands of NCAS is the tripartite NCAS agreement between the Trust, the practitioner and NCAS. On 6 February 2012 agreement was reached which included the summary of the concerns which NCAS was to investigate. They are these:

"4. Summary of concerns

"Concerns have been raised by the referring body about the performance of the practitioner in the following area(s):

Relationships with patients including

o respecting confidentiality and obtaining consent

Working with colleagues including

o working in teams

o leading and managing teams

o sharing information with colleagues"

55. That matter has now been progressing. Following an agreement between the parties for a speedy trial of this matter, progress has included the determination of some of the four segments of the NCAS approach, which is an occupational health assessment carried out on 16 March 2012. This includes a specific reference to the claimant's workload in October and November 2010, when, it will be recalled, the admitted breaches of confidentiality occurred. It is there reported that there is a period of work related stress in the context of problems she was having at work, compounded by an unexpected peak in workload. She had been threatened with disciplinary action, she was under disciplinary investigation following complaints, sleep was disturbed and suffering from headaches which lasted for a period of about four weeks. Then there was a note about factors in the work environment which have a bearing on her.
56. A week later, on 23 March 2012, a behavioural assessment was carried out which lasted for seven hours. There is no written report yet, but the claimant told me in her evidence that there was considerable attention given to the circumstances surrounding the confidentiality complaints and the factors which contributed to it.
57. The third component is the clinical assessment and, although not optimal, this will take place at Ealing and not at Broadmoor. What is left is a peer review and, as I understand it, much of that has been done.

The witness evidence

58. I turn then to the witness evidence. Dr Chhabra was taken to the glowing reference she was given by Dr Horne which indicated the claimant understood the importance of confidentiality. As she admitted, she accepted that she knew what was expected by GMC guidelines and accepted her responsibility under them. She said she had considered Dr Taylor's report. She accepted what was put against her and admitted it should not have happened. She denied discussing matters with her secretary publicly. She acknowledged that she was at fault in respect of the matters she had admitted. She considered Dr Broughton was entitled to be concerned but that it was an error of judgment which she deeply regretted. She did not realise that she compromised patient confidentiality and she indicated that she had reported pressures of work. When she looked at the tripartite NCAS agreement she considered that this would be an opportunity for her to give her account and to be probed in detail about matters surrounding all of the concerns. She said that there was not a fact finding inquiry but in respect of the behavioural interview her evidence was, as I have suggested, from her written statement. She agreed with Dr Broughton in his written evidence that patient confidentiality is particularly important given the nature of the patients she and the Trust deal with and that these patients attract a good deal of unwanted media attention. She said there would be no further breaches.
59. Dr Broughton had done a number of interventions in respect of MHPS and had training. He acknowledged that the new regime is to move away from a culture of blame and swift discipline into remediation. This underpins the whole scheme. What controls this is a concern for the serious concerns about professional conduct. The conduct policy in D4 is applicable to all staff. Dr Broughton had confidence in his choice of Dr Taylor to do justice to the claimant as being recommended to him as of high calibre and he acknowledged that Mr Wishart had briefed her. That, he accepted, was an oversight for which he apologised, given the assurance that had been given to the claimant that Mr Wishart would not. It was clear to him that this was professional misconduct. He did not hope to dismiss her, but the judgment he made on categorisation as between conduct and capability flowed from the investigation.
60. There was a serious breach of confidentiality which was caused by conduct of the claimant which was itself wilful and he defined wilful to me as being not ignorance, accident or compulsion. That means that, as he put it, the claimant knew she was dictating, she knew she was reading on the train, and that made her conduct a wilful breach of the confidentiality obligations. She compromised the confidentiality of the patients. In saying that her conduct was wilful, he denied placing any gloss upon Dr Taylor's report. He was plainly of the opinion, which he maintained, that this was a disciplinary matter. He did, however, acknowledge that it was a possibility from a multifactorial approach that performance issues would include the matters criticised by way of conduct. He acknowledged that the claimant had been acquitted in respect of the falsification and probity issues by Dr Taylor, that she had told Dr Taylor about her heavy workload, which could cause stress and produce aberrant behaviour. Given the glowing report, including its reference to respect for confidentiality, this conduct could be described as aberrant and the circumstances that she had about her professional life in the latter part of 2010 could be presented as mitigation at a disciplinary hearing.
61. It was not the role of NCAS to clarify whether these were issues of misconduct, it was to deal with concerns. He said the claimant had not acted in an uncharacteristic way in that it was said she normally read papers from Bracknell to London. He also introduced for the first time a contention that removal of papers in itself was a breach of policy D5, a matter which had not formed any part of the allegations thus far. He acknowledged that gross misconduct is the highest level of misconduct and this was a first offence. It was deliberate flouting of the rules. He acknowledged that those words were not found in the Taylor report. He also acknowledged that, notwithstanding the concerns he expressed, the claimant was restored to St Bernard's, albeit not as a consultant, and that was his explanation when challenged as to how there could be a breakdown in the relationship sufficient to constitute gross misconduct and yet the claimant be still engaged as a practitioner by the Trust.
62. He had no explanation as to why Miss Lewis thought it necessary to strengthen the case and accepted that this was an unfortunate and unnecessary addition to the case, but it had no bearing on his decision. He accepts that he did say at various stages that it was a serious error of judgment, but relied on that only in respect of his decision on exclusion. He acknowledged that there was inadvertence on his part by failing to consult NCAS before further stages in the procedure. He acknowledged there were serious delays in the procedure which frustrated him too and that certain parts of the allegations against the claimant had been rejected by Dr Taylor, including the matters relating to probity. He told me that Mr Wishart was involved in earlier stages and was not involved in the investigation, notwithstanding being reminded of the correspondence between himself and Dr Taylor. He was aware that Dr Taylor prior to her report was indicating that the claimant accepted responsibility for confidentiality breaches. I think it probable that he had seen the letter from Dr Taylor to Mr Wishart before he made his decision on 10 August 2011. If not, he had certainly known the gist of it since he talks weekly to him.
63. He was also pressed upon exoneration and Mr Wishart, he said, should have known that matters of exoneration are required by the code to be dealt with and what Mr Wishart was doing should have paid attention to that. As to his commissioning of Dr Murray to chair a forthcoming disciplinary hearing, he simply wanted to move the matter forward and knew that this was a very busy practitioner.
64. When pressed about the interrogation of the claimant's electronic mailbox he said this was a power for the Trust and did not know about this at the time. He acknowledged Mr Wishart had a hand in drafting but did not pepper up the Taylor report. He accepts that some of the insertions directed by Mr Wishart were inappropriate, but the gist remained the same. He acknowledged that the level in the report was heightened but his decision would be the same. There was no reference, he agreed, to wilfulness in the Taylor report. He acknowledged the delay in the procedures and in failing to send relevant materials to the claimant.
65. In summary, Dr Chhabra gave her evidence in a straightforward way, acknowledging where she accepted fault and answering questions clearly. Dr Broughton gave evidence in a straightforward way. He was properly challenged. He comes across as a manager in the specialist service he is in, who places great stock in confidentiality and a doctor's duty and he is right to do so. He gave his evidence in a straightforward way and he too when pressed acknowledged faults in the procedure which he was conducting. They are both clear, honest, straightforward, professional practitioners.

The claimant's case.

66. The principal argument of the claimant is that this is a matter of categorisation and that what the claimant was charged with under the heading of "Confidentiality" was a matter of performance and not to do with conduct. If it was conduct then there was an obligation under the procedure to combine it with capability and to send it off to NCAS. The approach of the defendant to deal with this matter as one of conduct was to go back upon the old regime where there was a new regime which would deal holistically with the matters. The presumption in paragraph 4.5 was in favour of the claimant where there was or there might be a relationship between what was done and performance issues. The central contention was that both should go together or the parties and whoever was dealing with this would be operating with one hand tied behind their back.
67. The divisions between the examples given of misconduct are porous and many of the examples could equally be described as to do with capability or with conduct or with performance. It is important to look at the matter as one of substance rather than simple labelling. The claimant had accepted fully and frankly that she had done wrong and this cried out for determination under the fair blame procedures. What the claimant had admitted to, arising from the Taylor report, could not be categorised as conduct or, if it could, it could not be categorised as gross misconduct. This matter should be taken through the capability procedure where an action plan might be forthcoming, the procedure is underway and it should not be interfered with by way of the disciplinary procedure.

The defendant's case.

68. On behalf of the defendant Miss Chudleigh contended that Dr Broughton had paid full attention to the guidelines, was entitled to delineate the matters as he did between conduct and capability. The matters were separable. The officers of the defendant who had heard the claimant's contention had correctly decided that this was proper classification. It would be wrong for the court to be engaged in micromanagement of the procedures and the hearings and not only was it open to Dr Broughton to decide, as he did, to cleave the two, but as a matter of contract this claim by the claimant must fail.

The legal principles.

69. The legal principles to apply in this case fall under the following headings:

Gross misconduct.

70. In Wilson v Racher [1974] ICR 428 Cairns LJ, giving a judgment with which the other members of the Court of Appeal agreed, set out the following definition:

"Lord Evershed M.R. in the course of a judgment with which the other members of the court, Jenkins and Willmer L.JJ., agreed, said, at p. 701:

"'. . . one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that you find in the passages I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions.'

"There is certainly nothing more essential to the contractual relation between master and servant than the duty of obedience. Another duty on the part of the servant, particularly in the case of a man in such employment as this plaintiff had, a gardener in a domestic situation, is the duty of courtesy and respect towards the employer and his family. That is an important part of his obligations. But I would apply to that duty the same considerations as Lord Evershed M.R. applied in relation to the duty of obedience. In my view, this was not a case where it can be said with any justice to the plaintiff that the way in which he behaved, regrettable though it was, was such as to show 'deliberate flouting of the essential contractual conditions,' having regard to the unjust accusation which had been made against him.

"I think it would have been wrong for the judge to have come to any other conclusion than that this was a wrongful dismissal."

That is important in this case because the case has been categorised as one of gross misconduct. It involves the elements which Cairns LJ there set out.

Incorporation.

71. A contract of employment may incorporate terms from a collective agreement or from a policy provided its terms are apt, see Alexander v Standard Telephones and Cables Limited (No 2) [1991] IRLR 286 at paragraph 37 where Hobhouse J said this:

"The principles to be applied can therefore be summarised. The relevant contract is that between the individual employee and his employer; it is the contractual intention of those two parties which must be ascertained. In so far as that intention is to be found in a written document, that document must be construed on ordinary contractual principles. In so far as there is no such document or that document is not complete or conclusive, their contractual intention has to be ascertained by inference from the other available material including collective agreements. The fact that another document is not itself contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee. Where a document is expressly incorporated by general words it is still necessary to consider, in conjunction with the words of incorporation, whether any particular part of that document is apt to be a term of the contract; if it is inapt, the correct construction of the contract may be that it is not a term of the contract. Where it is not a case of express incorporation, but a matter of inferring the contractual intent, the character of the document and the relevant part of it and whether it is apt to form part of the individual contract is central to the decision whether or not the inference should be drawn."

72. That approach was also followed in Bristol v Deadman [2007] IRLR 888 where Moore-Bick LJ said this:

"In my view Mr. Hogarth was right in submitting that Integrated Equalities Policy is not a document which naturally lends itself to incorporation into the contracts of the Council's employees, but it does provide a useful insight into the standards which the Council itself considers that it is appropriate to observe in its dealings with them. The recognition of the need to deal with harassment positively, quickly and sensitively provides one example, but rather than constituting a term in its own right it is in my view properly to be understood as illustrating the manner in which the Council expects to conduct its relationship with its employees, both in complying with its contractual obligation not to undermine the mutual relationship of trust and confidence and in observing its duty of care towards them under the contract and at common law. The Procedure for Stopping Harassment in the Workplace is rather different. Although some parts of it also contain little more than statements of policy, other parts, particularly section 7, are of a more detailed and formal nature and are capable of being incorporated into contracts of employment. In my view where an employer has published and implemented with the concurrence of employees' representatives formal procedures providing for the manner in which complaints are to be investigated, it will usually become a term of the contract of employment that those procedures will be followed unless and until withdrawn by agreement. The fact that in this case the procedures were made in the implementation of a non-contractual policy is in my view of no significance. What matters is whether they were in fact adopted as part of the contract of employment, as in my view they were in this case."

The role of the Court.

73. The role of the court in deciding the issues as to classification has been clarified in three authorities. In Skidmore v Dartford and Gravesham NHS Trust [2003] ICR 721 it was said that it was for a Trust who would initiate the commencement of disciplinary proceedings to decide on the appropriate disciplinary route to be followed, so long as its decision complied with the terms of the contract with the practitioner. Where its decision did not so comply and was acted upon the usual remedies for breach of contract would arise and that accordingly use of the wrong procedure entitles the practitioner to the appropriate relief. See also, for example, the speech of Lord Steyn at page 729D where he holds the contract was entirely workable on the basis that the authority had to decide on categorisation but it had to be done in accordance with the contract. This to my mind indicates, as Mr Sutton submitted, a purposive approach to be taken in a robust way by the court to decide matters of contract in respect of practitioners.
74. The matter came up again in Hussain v Surrey and Sussex Health Care NHS Trust [2011] EWHC 1670 QB in a judgment of Andrew Smith J. This judgment is important in our case in a number of respects. First, I bear in mind what he said in paragraph 3 that he has described the background intending to be uncontroversial and did not decide the critical factual issues in the case, and that remains my position too. At paragraph 104 he explained the use of the procedure analogous to the one in our case:

"Dr Haigh's evidence did not include a ritualistic recitation of the wording of paragraph 4.5: it was the more persuasive because it did not do so. But I conclude that he applied to the paragraph 4.5 decision the criterion stated in the paragraph.

Indeed, if it matter, the reasons for dealing separately with the allegations about misconduct were and are, to my mind, overwhelming. The alternative would be for them to remain unresolved while the machinery under part 4 of the Practitioners Disciplinary Procedure is implemented: that is to say, while there is an assessment of Dr Hussain's capability and while an action plan is drawn up with NCAS's advice and implemented. It is common ground that this would not take less than six months. Such delay in resolving allegation of misconduct of the kind made against Dr Hussain would, in my judgment, be unthinkable, and in any case, while allegations of misconduct of this kind are unresolved, it cannot be expected that other practitioners and staff would enjoy the professional relationship with Dr Hussain which would be necessary for concerns about her capability to be resolved through the part 4 machinery."

75. The third aspect of the case arises by reference to what he said on incorporation at paragraph 168 in the following way:

"There is no single test as to whether an employer and employee intended to agree that provisions of an agreement such as the Practitioners Disciplinary Procedure should be contractual between them (rather than advisory or hortatory or an expression of aspiration), and if so which provisions. The indicia that a provision is to be taken to have contractual status which are, I think, of some relevance to this case include these:

i) The importance of the provision to the contractual working relationship between the employer and the employee and its relationship to the contractual arrangements between them: as I understand it, it is common ground in this case that, because parts of the Practitioners Disciplinary Procedure are contractual, in some circumstances the Trust might exclude Dr Hussain or bring disciplinary proceedings for misconduct against her. The implication of this, as it seems to me, is that provisions important to implementing the agreement about exclusion and about conduct hearings are also apt to be contractual: the more important the provision to the structure of the procedures, the more likely it is that the parties intended it to be contractual. As Auld LJ said in Keeley v Fosroc International Ltd, [2006] IRLR 961 (which concerned whether provisions relating to enhanced redundancy payments in a Staff Handbook were enforceable as part of individual contracts of employment),

"'Highly relevant in any consideration, contextual or otherwise, of an "incorporated" provision in an employment contract, is the importance of the provision to the over-all bargain, here, the employee's remuneration package - what he undertook to work for. A provision of that sort, even if couched in terms of information or explanation, or expressed in discretionary terms, may still be apt for construction as a terms of his contract ....' (at para 34).

ii) The level of detail prescribed by the provision: as Penry-Davey J said in

Kulkarni v Milton Keynes Hospital NHS Trust, [2008]1RLR 949 at para 25, the courts should not 'become involved in the micro-management of conduct Hearings', and the parties to the contract of employment are not to be taken to have intended that they should be. (In the Court of Appeal in Kulkarni, (loc cit) at para 22, Smith LJ endorsed this observation of Penry-Davis J.)

iii) The certainty of what the provision requires: as Swift J observed (in Hameed (loc cit) at para 68), if a provision is vague or discursive, it is the less apt to have contractual status.

iv) The context of the provision: a provision included amongst other provisions that are contractual is itself more likely to have been intended to have contractual status than one included among other provisions which provide guidance or are otherwise not apt to be contractual.

v) Whether the provision is workable, or would be if it were taken to have contractual status; the parties are not to be taken to have intended to introduce into their contract of employment terms which, if enforced, not be workable or make business sense: see Malone v British Airways, [2010] EWCA Civ 1225 at para 62."

76. I agree with that. However, the Court of Appeal did not accept the second part of his reasoning in Mattu v The University Hospitals Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641, a judgment handed down on 18 May 2012. Under the heading of "The Classification Issue" in a case similar to ours Elias LJ said this:

"The question here is whether the disciplinary hearing involved issues of professional conduct. If it did, then under clause 3.2 of the Procedure for Conduct and Capability Concerns, reproduced by Stanley Burnton LJ at paragraph 4 above, the Trust was obliged to have a medically qualified person on the disciplinary panel. The failure so to constitute the panel would be a breach of contract. I do not accept the submission of Mr Cavanagh that a term in the contract which provides that 'it is for the Trust to decide upon the most appropriate way forward' makes the Trust the final arbiter of which procedure should be adopted, subject at least to bad faith or the absence of reasonable grounds for the decision. A similar argument was unsuccessfully advanced before the House of Lords in Skidmore v Dartford and Gravesham NHS Trust [2003] UKHL 27; [2003] lCR 721 when the relevant clause in earlier disciplinary provisions stated that 'it is for the authority to decide under which category a case falls'. Lord Steyn, with whose judgment Lords Bingham, Clyde, Hutton and Scott agreed, held that this language was insufficient to confer the final decision on classification to the authority, thereby excluding the role of the court. In my judgment that principle applies equally here, and I respectfully disagree on this point with the analysis of Andrew Smith J in Hussain v Surrey and Sussex Hea/thcare NHS Trust [2011] EWHC 1670 (QB)."

It is of course that approach which I will take, notwithstanding the precise construction point was not the same as it was in Mattu.

77. A key to analysing the particular provisions in our case is found in the judgment of Stanley Burnton LJ, who said this:

"In my judgment, the basis of the distinction between professional misconduct and non-professional misconduct under MHPS and the Disciplinary Procedure is the requirement for an independent medically qualified panel member. If there is no utility in having a medically qualified person on the panel, it is difficult to see that the allegation is of professional misconduct so as to require his or her ex hypothesi unnecessary participation."

The judgment of Elias LJ is the majority view of himself and Stanley Burnton LJ. The nature of the procedure determines the point.

Resort to NCAS.

78. In Mezey v South West London and St George's Mental Health NHS Trust [2010] IRLR 512, again dealing with similar problems to those affecting our case, Ward LJ said this:

"The aim and purpose of Part IV is clear. The aim is to improve the quality of medical practice. Prevention is better than cure. Resort to the NCAA is mandatory for it is better than discipline except where there is a genuinely serious failure. There has been no resort to the NCAA here. Bearing in mind the regularly stated requirement that the case must first be referred to NCAA, paragraph 15 of Part IV says it all:

"'The NCAA will assist the employer to draw up an action plan designed to enable the practitioner to remedy any lack of capability that has been identified during the assessment. The Trust must facilitate the agreed action plan (which has to be agreed by the Trust and the practitioner before it can be actioned). There may be occasions when a case has been considered by the NCAA but the advice of its assessment panel

is that the practitioner's performance is so fundamentally flawed that no educational and/or organisational action has a realistic chance of success. In these circumstances, the case manager must make a decision, based on the completed investigation report and informed by the NCAA advice, whether the case should be determined under the capability procedure. If so, a panel hearing will be necessary.' (The emphasis is mine.)

"Dr Mezey's performance was not so fundamentally flawed that she needs some educational and/or organisational action plan. In those circumstances a panel hearing is impermissible. To impose it is to act in breach of the agreed procedure. It is a breach of contract which can be restrained by injunction. Although I have arrived at my conclusion by a slightly different route, because that is the way the case has been argued here, the judge was right to grant the injunction. I would dismiss the appeal."

79. This deals both with the ability of the court to intervene and to take the correct approach where there is a breach of contract. This may sometimes create surprising results, as occurred in Lim v Royal Wolverhampton Hospitals NHS Trust [2011] EWHC 2178 QB in a judgment of Slade J where she said this:

"Mr Powell's arguments that construing the reference to the NCAS as a mandatory obligation would be onerous and potentially unworkable are powerful. It may be said that a reference to the NCAS for assessment of a doctor who in the opinion of independent experts had been guilty of gross negligence would be fruitless. Continued employment of such a doctor may expose an employer to negligence claims. However, the terms of HR27, which are consistent with Part IV of MHPS, are clear. The Defendant cannot proceed to a capability hearing of concerns about the Claimant before they have referred the matter to the NCAS for assessment and the NCAS assessment panel has advised that no action plan has a realistic chance of success."

80. Only if NCAS regards it as irremediable does the case go on to a capability or other hearing. There is, as Mr Sutton correctly submits by reference to this judgment, an absolute obligation to do so.

Relief.

81. The relief available in this case emerges from the authorities which I have cited, but for clarity Edwards v Chesterfield Royal Hospital Foundation; NHS Trust Botham v The Ministry of Defence [2012] 2 WLR 55 indicates the approach which I should take, for Lord Dyson said this:

"That is not to say that an employer who starts a disciplinary process in breach of the express terms of the contract of employment is not acting in breach of contract. He plainly is. If that happens, it is open to the employee to seek an injunction to stop the process and/or to seek an appropriate declaration. Miss O'Rourke submitted that, if in such a situation there is a breach of contract sufficient to support the grant of an injunction but (for whatever reason) the employee does not obtain an injunction, it is anomalous if the normal common law remedy of damages is in principle not available to him. The short answer to this submission is that an injunction to prevent a threatened unfair dismissal does not cut across the statutory scheme for compensation for unfair dismissal. None of the objections based on the co-existence of inconsistent parallel common law and statutory rights applies. The grant of injunctive or declaratory relief for an actual or threatened breach of contract would not jeopardise the coherence of our employment laws and would not be a recipe for chaos in the way that, as presaged by Lord Millett in Johnson, at para 8o, the recognition of parallel and inconsistent rights to seek compensation for unfair dismissal in the tribunal and damages in the courts would be."

82. The complementary regimes of unfair dismissal and breach of contract can operate separately, as Lord Dyson makes clear.

Discussion and Conclusions.

83. I prefer the arguments of Mr Sutton and Miss Criddle and have decided to uphold the claim. The first issue to decide is categorisation. I hinted earlier that the broad approach, said to be the agreed position, of whether it was permissible to characterise the allegations as misconduct rather than incompetence is too wide. What I am asked to do is to prevent the Trust from breaching the claimant's contract by operating on the decision of Dr Broughton in his decision letter. Here is a way of analysing both the categorisation issue and the seriousness issue.
84. I accept Miss Chudleigh's submission that the matters relating to confidentiality which emerged from the Taylor report are aptly described as conduct. They are after all taking place outside the workplace where the capability issues are being dealt with as respects Dr Chhabra's conduct and performance at work. She was on a train. They are self-contained. They happened on only two days in 2010. I accept that these could aptly be described as conduct. They could also be described as contributing to an analysis of her performance, in that case the linkage between conduct and capability militates in favour of them being dealt with together under paragraph 4.5.
85. The point, however, is the way in which the charge has been put. I am asked to restrain the conduct panel being convened to hear the charges. I have already said that as a matter of construction of Dr Taylor's report, the charges do not bear the weight which Dr Broughton gives them. The fourth charge has gone. He has accepted that. The third charge was not upheld by Dr Taylor and part of the first charge was not either. In the mind of Dr Broughton there has been no express re-examination of whether what is left of the charges constitute so serious misconduct as to be dismissible under the disciplinary code, the highest level of misconduct available to it. Even if Dr Broughton were right that all four of these matters constitute gross misconduct as a matter of law entitling the Trust to dismiss, they were bound to be reassessed in the light of Dr Taylor's report. He simply did not see Dr Taylor's report in the correct light and therefore went ahead on the basis of an enlarged criticism of the claimant which Dr Taylor did not support.
86. The language used in the decision letter itself is telling. It corresponds precisely to the language of Cairns LJ and it corresponds actually to Dr Broughton's thinking about what is wilful. In my judgment, the second part of Dr Taylor's report, which includes the claimant's explanations as to why she did it and her lack of knowledge and understanding of what she was doing are bound to affect a judgment about whether she was tearing up the contract, acting in a way which fundamentally breached it. In my judgment, the claimant was entitled as a matter of contract to have these matters determined in a way which was not under a charge of gross misconduct for which she was dismissible. With respect to counsel in this case, it is not simply classifying these matters as conduct or even misconduct, it is whether the Trust was correct as a matter of law to categorise them as gross misconduct in the decision letter. In my judgment, it erred in so doing and was not entitled to enforce its right of discipline in respect of that.
87. Dr Broughton told me that he brought to bear on Dr Taylor's report his own experience. But that is not the case which is required here. It is that there has to be sufficient material for this point to be taken against the claimant and it fell far short of it. I have accepted Dr Broughton's sedulous attention to the confidentiality matters. So has Mr Sutton actually because he agrees that certain confidentiality breaches can be wilful and can strike at the very nature of the contractual relationship. But, in my judgment, he broke the claimant's contract when he levied these charges against her for they were not grounded sufficiently in the Taylor report.
88. That ought to be an end to the case. But, in fairness, the second issue which was addressed to me was as to whether there was a relationship between this conduct and the capability requiring the Trust as a matter of contract to put them both together in the capability procedure. I see the force in Miss Chudleigh's argument that there is not yet a capability hearing. That could only arise as one of the outcomes of the NCAS procedure, that is, a failure of an action plan or a totally intractable relationship. We have not arrived at that stage yet. But at the same time I accept Mr Sutton's contention that this procedure has to be dealt with purposively. It is apt for incorporation on the lines of the judgments in Alexander and Hussain and it does give a right where there is (or there possibly is) a connection between conduct and performance to have the matter referred to NCAS. This is now the modern ethos for dealing with criticisms against practitioners. It does not exclude straightforward disciplinary charges being brought, but in a case where the Taylor report showed some background, explaining the events relating to the breach of confidentiality, these matters were bound by 4.5 to be put through NCAS. Although they occurred outside the workplace the claimant was in fact performing her professional duties for the benefit of the Trust.
89. There are also problems in putting this matter through the disciplinary process because they relate to Dr Taylor's view. Her approach includes matters which I hold to be exoneration. She regards the claimant as having committed errors of judgment and mistakes. She it is who has to present the case against her at the disciplinary panel, as I read the procedure, and she will be in difficulty doing that, given the admissions she has made which attenuate the approach. After all, on my findings, Dr Taylor has upheld only those complaints against the claimant on breach of confidentiality which she herself admitted. So the process would be quite short and it would be difficult for Dr Taylor to present, in the light of the material disclosed in this case, a clear-cut case of gross misconduct. As I have said, it has to be that case of gross misconduct. Her lesser views are bound to be exploited as concessions.
90. This case cried out for fair blame and it cried out for fair blame when Dr Taylor gave her report. There were straightforward admissions. They could have been dealt with in a much more sympathetic way. As a matter of contract, since I have held that these could not be categorised as gross misconduct, the fair blame procedure was available as of right to the claimant and the Trust should have activated it.
91. As to the inadequacies in the procedure, these now seem minor. Legally privileged documents were obtained, but nothing seems to have turned on it. I do not read into this an intention by the Trust come what may to dismiss the claimant. The Trust has made mistakes in the way it operated the procedure, for which Dr Broughton has admitted some responsibility. These are procedural breaches but they do not, in my judgment, count as an attack on the implied term trust and confidence in prejudgment of the case against the claimant.
92. So I propose to grant injunction number 1 and declaration 1(a) and it will be by reference to the confidentiality complaint contained in the letter so that it is specific to this, and the same in relation to (b) and (c). I do not grant the declaration in (ii). I grant the injunction in (iii)(b) and (c).
93. I would very much like to thank the legal teams for their help and expedition in completing this trial within time.