Introduction

The case Burn v Alder Hey Children's NHS Foundation Trust ([2021] EWCA Civ 1791) addresses pivotal issues surrounding the scope of document disclosure during internal investigations within the National Health Service (NHS). The appellant, Dr. Burn, a consultant paediatric neurosurgeon, contested the Trust's refusal to provide access to certain documents essential for her defense in a formal investigation concerning her clinical decision-making during the care of a patient, referred to as A.

The core dispute centered on whether Dr. Burn was entitled to access all documents held by the Trust related to the investigation, including those not explicitly deemed correspondence. The High Court initially dismissed her claims, a decision that was subsequently appealed to the Court of Appeal.

Summary of the Judgment

The England and Wales Court of Appeal upheld the High Court's decision, dismissing Dr. Burn's appeal. The court reasoned that the Trust was not obligated to provide a general disclosure of all documents related to the investigation. Instead, the obligation was confined to correspondence generated as part of the investigatory process. The court emphasized the importance of procedural fairness but distinguished it from a broad disclosure mandate, limiting the scope of documents that must be shared with the practitioner under investigation.

Analysis

Precedents Cited

The judgment extensively referenced key precedents impacting the interpretation of disclosure obligations:

• Braganza v BP Shipping Ltd [2015] UKSC 17: Emphasized the necessity for reasonableness in employer decision-making processes.
• IBM United Kingdom Holdings Ltd v Dalgleish [2017] EWCA Civ 1212: Addressed the extent of disclosure during internal investigations.
• Chakrabarty v Ipswich Hospital NHS Trust [2014] EWHC 2735 (QB): Discussed the implied terms related to fairness in employment contracts.
• North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387: Explored the boundaries of procedural fairness obligations.

These cases collectively informed the court's interpretation of the obligations under the NHS's "Handling Concerns about Conduct, Performance & Health of Medical & Dental Staff" Policy (MHPS), particularly regarding document disclosure during investigations.

Legal Reasoning

The court dissected paragraph 1.16 of the MHPS, which outlined the practitioner's right to access correspondence related to the case. The pivotal question was whether "correspondence" should be interpreted broadly to include all documents related to the investigation or narrowly to specific communications.

The Court of Appeal concluded that "correspondence" naturally refers to direct communications between parties. Therefore, the Trust was only required to disclose documents classified as correspondence within the investigatory framework. The withheld documents, such as internal reports and statements not classified as correspondence, did not fall under this obligation.

Additionally, the court acknowledged the importance of procedural fairness, ensuring that the practitioner had sufficient information to present her case adequately. However, this did not equate to a general duty of full disclosure, which could impede the efficiency and discretion intended in preliminary investigations.

Impact

This judgment reinforces the boundaries of disclosure obligations within NHS internal investigations. It delineates a clear distinction between specific obligations to disclose correspondence and a non-existent general duty to reveal all investigatory documents. The decision underscores the balance between procedural fairness and the operational efficacy of internal procedures.

Future cases will likely reference this judgment when addressing disputes over document disclosure in similar contexts, providing a precedent that limits disclosure to defined categories of documents.

Complex Concepts Simplified

Paragraph 1.16 of the MHPS

This provision outlines the practitioner's rights during an investigation, specifically the right to be informed about the investigation, including the allegations, the case investigator's identity, and any correspondence related to the case. It also ensures the practitioner can suggest additional individuals to be interviewed and present their perspective on the events in question.

Procedural Fairness

Procedural fairness refers to the principle that processes, especially those involving disciplinary actions, must be conducted impartially and transparently. It ensures that individuals have a fair opportunity to present their case and respond to any allegations.

Correspondence vs. Documents

Correspondence typically refers to direct communications such as letters, emails, or memos exchanged between parties. In this context, it does not encompass all documents related to the investigation, such as internal reports or statements unless they fall under direct communication.

Conclusion

The Burn v Alder Hey Children's NHS Foundation Trust judgment clarifies the extent of disclosure obligations within NHS internal investigations. By limiting the obligation to disclose only correspondence directly related to the investigatory process, the court preserves the efficiency and discretion necessary for preliminary investigations while still upholding procedural fairness. This decision provides clear guidance for both practitioners and NHS Trusts, ensuring that rights are balanced with operational needs.

Practitioners should understand that while they are entitled to certain information to defend themselves adequately, this does not extend to a blanket requirement for all investigatory documents to be disclosed. NHS Trusts, on the other hand, are reinforced in their ability to manage investigations without undue burden from broad disclosure demands.