NHS was wrong to withhold salary of doctor in patient death inquiry

The Court of Appeal has ruled that an NHS Trust had not been entitled to withhold the salary of a doctor who was suspended from duty while police carried out an investigation into patient deaths.

The doctor began working for the trust in 2003. In 2016, the trust became concerned that he had hastened the deaths of some patients. It opened disciplinary proceedings and initiated the process in Maintaining High Professional Standards in the NHS (MHPS). It also notified the police.

The doctor was suspended on full pay. The CPS decided there was insufficient information to charge the doctor in relation to one patient death but its investigation into a second patient’s death was ongoing.

The General Medical Council suspended the doctor’s registration to practice, and the trust stopped his salary.

The doctor refused to participate in a disciplinary hearing as he would risk prejudicing himself in the criminal investigation. He obtained an interim injunction preventing the trust from continuing with its internal hearing until the police investigation was complete.

The case went all the way to the Court of Appeal, which ruled that the doctor’s terms of employment meant that the trust could not withhold his salary during an interim, non-terminatory suspension. Further, MHPS provided that exclusion would “”usually be on full pay””. The same was true of the trust’s own disciplinary policy.

The doctor was ready, able and willing to work but the decision of a third-party tribunal had removed his registration to do so. Where the contract did not address the issue of pay deduction during suspension, the default position should be that an interim, non-terminatory suspension should not attract the deduction of pay.

However, the court also ruled that there was nothing to stop the trust carrying out its own disciplinary hearing at the same time as the police investigation.

There was no evidence that the internal disciplinary process would have any effect on the criminal investigation, let alone give rise to a real danger of a miscarriage of justice. The injunction preventing the trust continuing its investigation was lifted.

Please contact Sorcha Monaghan if you would like more information about the issues raised in this article or any aspect of employment law.