21/08/2025
Introduction
A recent High Court Judgment has shed light on the matter of who should undertake the role of Case Manager in a Maintaining High Professional Standards (“MHPS”) process in an NHS Foundation Trust where the individual subject to the process is a consultant.
The judgment confirms that the Medical Director should be the Case Manager in cases involving consultants, unless a Foundation Trust has derogated from the provisions of the Maintaining High Professional Standards in the Modern NHS framework (“the national MHPS Framework”).
The relevant part of the national MHPS Framework is Part I, para 4 which states: “The Medical Director will act as the case manager in cases involving clinical directors and consultants and may delegate this role to a senior manager to oversee the case on his or her behalf in other cases”.
In this case, the anonymous Trust’s own local MHPS Policy, at paragraph 1.6, stated: “The Medical Director will act as the Case Manager in cases involving Clinical Leaders i.e. Clinical Directors and Service Group Leads and consultants and may delegate this role to a senior manager to oversee the case on his or her behalf in other cases”.
In reality, it has not always been the case to date that the Medical Director is the Case Manager in all cases involving consultants and clinical directors and quite often this role has been delegated. This, in our view, has been the case as the role of Case Manager is a very involved and can be extremely time consuming. The Practitioners Performance Advice Service (“PPA”) gave evidence in the case that in 57% of consultant cases they were on advising on, the Medical Director was not acting as Case Manager. This has not previously had considerable challenge.
Background
Dr MN (Consultant in Diabetes and General Paediatrics) brought a claim for breach of contract against the Trust after an internal MHPS investigation where the Medical Director was not appointed as the Case Manager.
The Trust had initiated an investigation and appointed the Trust’s Director of Corporate Affairs as the Case Manager (i.e. a non-clinical manager).
Dr MN sought declaratory relief to prevent the Trust from breaching his contract of employment with respect to the investigation that they were carrying out and in respect of the next steps that may be considered by the Trust following the conclusion of the investigation.
The Key Arguments
The hearing went to trial from 7 – 9 July 2025 and on 31 July 2025 the Judgment was published.
Dr MN succeeded on his claim.
Dr MN’s representative argued that the Trust’s MHPS Policy is incorporated into his contract of employment, and that it is a term of his contract as a consultant that the Medical Director (in this case, the Trust’s Chief Medical Officer) must serve as the ‘Case Manager’ and cannot delegate that role to anyone else.
The Trust accepted that the MHPS Policy is incorporated into Dr MN’s contract of employment. They also accepted that certain provisions – such as the right of the Trust to exclude a doctor whilst an investigation was in progress – were appropriate for incorporation as terms of Dr MN’s contract. That, they said, did not apply, however, to paragraph 1.6.
It was also submitted by the Trust that whether or not paragraph 1.6 is appropriate for incorporation, the precondition to its application – that there were “potentially serious concerns, i.e. those which have or may adversely affect patient care” – was not satisfied here. The Trust also contended that they acted with reasonable and proper cause – a fundamental qualification to the trust and confidence test – and its conduct is not so severe as to justify a finding of a breach.
The Decision
The judgment concluded (among other things) that:
- It is a term of Dr MN’s contract of employment that the Case Manager should be the Medical Director (in this case, the Chief Medical Officer) for the matters that are the subject of the present investigation.
- The Trust must ensure that the Chief Medical Officer carries out that role once the investigation has been completed unless one of the exceptional circumstances that justifies departure from that requirement applies.
- The Trust’s MHPS Policy is in fact incorporated into Dr MN’s contract.
- The investigation undertaken by the Trust falls within the scope of paragraph 1.6.
- The language of “The Medical Director will act as the Case Manager” is mandatory.
In conclusion, the Judge found that it was a contractual term that the Medical Director in this scenario was required to be the Case Manager, and they were not permitted to delegate that role. The delegation was consequently a breach of Dr MN’s contract of employment.
Legal Analysis
In this case, the High Court takes a restrictive view. It was, however, accepted that there will be circumstances in which it would not be appropriate, or possible, for the Medical Director to serve as the Case Manager in a particular case involving clinical directors and consultants. For example, the Medical Director ought not to serve as Case Manager if they have personal or direct knowledge of the key subject matter of the investigation, or because they are the partner, or a close relative of the clinical director or consultant being investigated. There may also be circumstances of ill-health or other lengthy absence which would render it impossible for the Medical Director to carry out the function of Case Manager which is something Trusts should also take into consideration.
This decision is also likely to have different implications for NHS Foundation Trusts than it does for NHS Trusts. For Foundation Trusts, the national MHPS Framework is advisory only. However, as in this case, Foundation Trusts who adopt the national model contract for consultants will see that this states the Trust’s MHPS Policy will be consistent with the national MHPS framework. For NHS Trusts, this decision is more problematic.
What can we do to help?
In light of this judgment, now is a good time for Trusts to review their local MHPS policies and their consultant contracts.
Foundation Trusts should consider whether or not their consultant contracts have derogated from the national MHPS framework and, in light of this judgment, whether the intention is for them to do so.
Consideration should be given to both ongoing cases and upcoming MHPS cases in terms of the implications of this judgment. This will likely involve input from Trusts’ legal advisers, the PPA and relevant unions.
If you would like to discuss this topic in more detail, please contact Sarah Wimsett, Senior Associate or Joanna Burrows, Partner.
