Contractual Enforcement of MHPS-Consistent Policies: “Medical Director Will Act” as Non‑Delegable Case Manager for Consultant Investigations (Absent Exceptional Circumstances)

1. Introduction

MN v NHS Foundation Trust L concerned a dispute between an NHS consultant (Dr MN) and his employer (NHS Foundation Trust L, anonymised) about the procedural governance of an internal investigation into serious concerns connected to (i) an observership arranged for Lucy Letby and (ii) an alleged breach of patient confidentiality.

The appeal raised two tightly defined questions of principle:

  • Incorporation: whether the Trust’s local policy E27 ‘Handling concerns about conduct, performance & health of medical & dental staff’ (reflecting Maintaining High Professional Standards in the Modern NHS (“MHPS”)) was incorporated into Dr MN’s employment contract so as to be legally enforceable.
  • Delegation: if incorporated, whether the key provision—para 1.6 of Appendix A to E27—meant that for cases involving “consultants” the Medical Director must personally be the Case Manager, and therefore could not delegate the role to another senior manager (save in exceptional circumstances).

The High Court (Sheldon J) found for Dr MN, granted declaratory relief, and awarded him his costs in full. The Trust appealed both liability and costs. The Court of Appeal (Civil Division) dismissed both appeals unanimously (judgment delivered 12 February 2026).

2. Summary of the Judgment

The Court of Appeal held:

  • Para 1.6 of Appendix A to E27 is apt for contractual incorporation into an individual consultant’s employment contract.
  • On its proper construction, the words “The Medical Director will act as the Case Manager … in cases involving … consultants” impose a mandatory obligation, contrasted with the express permissive delegation language for “other cases” (“may delegate”).
  • The Trust’s attempted arrangement—Medical Director “assuming the nominal role” but delegating responsibility to the Director of Corporate Affairs—was a breach of contract.
  • A limited implied qualification exists: delegation may be permissible only where performance is incapable (e.g., illness, insuperable conflict), but such circumstances did not arise here.
  • The High Court’s costs order awarding Dr MN his costs in full was a permissible exercise of discretion and would not be interfered with on appeal.

3. Analysis

3.1 Precedents Cited

A. Incorporation of collective/procedural instruments into employment contracts

  • USDAW v Tesco Stores Ltd [2024] UKSC 28; [2025] ICR 107
    The Court used USDAW as the modern Supreme Court anchor for two propositions: (i) collective agreements are generally not legally binding of themselves, but (ii) terms that are apt may be incorporated into individual contracts. It also reinforced that standard principles of interpretation and implication apply in this “two-stage” collective/individual structure, and courts must not “relieve a party from the consequences of poor advice or bad judgment” when interpreting or implying terms.
  • Chakrabarty v Ipswich Hospital NHS Trust [2014] EWHC 2735 (QB)
    Cited for the key discipline that incorporation is selective: even where a contract references a collective or policy framework, not all provisions become contractual. Only provisions apt for incorporation do so.
  • Alexander v Standard Telephones & Cables Ltd (No 2) [1991] IRLR 286
    Provided the classic formulation: incorporation depends on the objective contractual intention of employer and individual employee; even broad words of incorporation still require scrutiny of whether the particular provision is apt to operate as a term of the individual contract.
  • Hussain v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670 (QB)
    The Court adopted Andrew Smith J’s “indicia” list as a structured tool to assess aptness: importance to working relationship, level of detail/micro-management risk, certainty, context, and workability.
  • Sparks v Department for Transport [2016] EWCA Civ 360; [2016] ICR 695 and Keeley v Fosroc International Ltd [2006] EWCA Civ 1277; [2006] IRLR 961
    These authorities supplied a practical “sanity check”: if the disputed wording were set out in a formal contract, could it seriously be argued it is not contractual? The Court considered para 1.6 comfortably met that test.

B. Limits: managerial discretion, micro-management, and flexible application of procedures

  • Al-Mishlab v Milton Keynes Hospital NHS Foundation Trust [2015] EWHC 3096 (QB)
    Relied on by the Trust to argue that gaps or silence in procedures usually preserve managerial discretion and courts should avoid “micro-management”. The Court accepted the general caution, but held it did not apply where the contractual term was clear, mandatory, and workable.
  • Kulkarni v Milton Keynes Hospital NHS Trust, [2008] IRLR 949 (and the Court of Appeal’s endorsement referenced in Hussain) and Chhabra v West London Mental Health Trust [2013] UKSC 80
    Cited within the “micro-management” discussion: courts are reluctant to intervene in the fine-grain conduct of internal hearings. Here, however, the Court characterised the dispute as a binary contractual entitlement (who must be Case Manager), not evidential tinkering within the process.
  • Burn v Alder Hey Children's NHS Foundation Trust [2021] EWCA Civ 1791; [2022] ICR 492
    Used to justify the Court’s decision not to engage with the Respondent’s Notice (a hypothetical cross-appeal on trust and confidence), reflecting judicial restraint where principles remain “in development” and the issue is not necessary to decide.
  • Authorities referenced within Al-Mishlab to frame discretion and restraint included: MacMillan [2014] EWCA 1031, Braganza [2015] UKSC 17, Yapp [2014] EWCA Civ 1512, Makhdum [2012] EWHC 4015, Hendy v MOJ [2014] EWHC 2539, Sarker [2015] EWHC 165, and Dr A v HTX [2012] EWHC 857 (QB). They collectively reinforce (i) employer latitude within reasonableness, (ii) public interest in letting internal processes run, and (iii) deference to specialist decision-making. The Court treated these as background constraints, not as displacing a clear incorporated term.

C. Interpretation and implication of contractual terms

  • Arnold v Britton [2015] UKSC 36; [2015] AC 1619 (with references to Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101 and other contextual interpretation cases)
    The Court approached para 1.6 using orthodox objective interpretation: text, internal contrast (“will” vs “may”), and context within E27 and MHPS-consistency.
  • Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2016] AC 742 and Ali v Petroleum Co of Trinidad and Tobago [2017] ICR 531 (as discussed in USDAW)
    Supported the Court’s narrow implied term: only such implication as is necessary (business efficacy/obviousness) and not a judicial rewrite. This underpinned the “exceptional circumstances” carve-out (incapacity/conflict), rather than a broad managerial power to delegate for convenience.

D. Costs discretion

3.2 Legal Reasoning

A. Why para 1.6 was “apt” for incorporation

The Court applied the Hussain/Chakrabarty indicia to para 1.6 and concluded it bore the hallmarks of a contractual safeguard for senior doctors:

  • Importance: For consultants, the identity and seniority of the Case Manager was found to be a significant procedural protection given the potential career and reputational consequences of escalation (including referral to the GMC or formal conduct/capability processes).
  • Certainty: The “will act” formulation was not vague, aspirational, or merely hortatory. It was a clear allocation of responsibility.
  • Workability: Evidence did not show unworkability; data from Practitioner Performance Advice indicated Medical Directors acted as Case Manager in a substantial proportion of consultant investigations (43%).
  • Not micro-management: The Court treated the point as a hard-edged contractual entitlement, not judicial supervision of how the investigation should be run day-to-day (much work remains with the Case Investigator).

B. Construction of “will” versus “may”: delegation is excluded for consultants

The decisive interpretive move was textual and comparative: the same sentence that says the Medical Director “will act” for consultant cases then says the Medical Director “may delegate” in “other cases”. The Court held that to read an implied power to delegate even in consultant cases would make the express “other cases” contrast largely otiose.

The Court also considered other E27 provisions cited by the Trust (paras 1.13, 2.9, 2.12–2.14). Rather than undermining the mandatory reading, para 2.14 (exclusion) was treated as reinforcing the drafting technique: where delegation is intended, E27 says so expressly.

C. The narrow implied exception: incapacity/conflict, not administrative preference

Although para 1.6 is mandatory, the Court accepted (as had the High Court) that an implied term permits departure where the requirement is effectively incapable of performance (e.g., insuperable conflict of interest or illness). This was presented as a necessary implication to make the provision workable in extreme cases and to avoid absurdity—not as an open-ended managerial discretion.

Importantly, the Court rejected the Trust’s reliance on practical preference arguments (breadth of Medical Director responsibilities; perceived independence advantages of delegating), because those were matters for renegotiation of policy (collectively) rather than judicial dilution of a clear contractual promise.

D. Relief and justiciability

The case demonstrates that courts will grant declaratory relief to enforce a procedural contractual right in an ongoing employment relationship where the dispute turns on interpretation of documents and the term is sufficiently precise. The Court did not treat this as inappropriate interference with internal processes, because the parties’ objectively agreed procedure (as incorporated) set the minimum structural requirement.

E. Costs: broad discretion, “who really won”, and no need for perfect evidence

The Court’s costs analysis is orthodox appellate restraint. It held there was no error of principle in awarding full costs despite some issues not being determined or being alternative: Dr MN won his primary claim, and the trial judge was best placed to assess whether abandoned/non-pursued matters materially increased costs. Absence of budgets/schedules did not by itself make the conclusion impermissible.

3.3 Impact

A. Procedural safeguards in NHS doctor investigations become more enforceable

The judgment strengthens the enforceability of MHPS-aligned local policies (like E27) where they contain clear, rights-conferring procedural protections. Trusts should assume that “who does what” provisions can be contractual if they are sufficiently certain and important.

B. Drafting implications: “will” means “must” where contrasted with “may”

The Court’s approach encourages careful drafting discipline. Where a policy uses mandatory language for a defined category (consultants) and permissive language for others, courts are likely to treat the distinction as deliberate and enforce it.

C. Delegation culture and governance: renegotiate rather than “work around”

If operational realities make personal Medical Director case management difficult, the judgment signals that the legally safe route is to amend policy through the appropriate collective mechanism (as the Court noted could be done), not to implement “nominal” compliance with practical delegation.

D. Litigation posture and remedies

The case sits within the line of authority recognising that procedural defects in disciplinary/investigatory frameworks can ground contractual claims and support injunctive/declaratory relief, without the court descending into evidential micro-management—provided the term is clear and the relief sought is structural rather than supervisory.

4. Complex Concepts Simplified

  • “Incorporation”: A workplace policy is not automatically part of your contract. But if your contract refers to it (expressly or by necessary implication) and the particular clause is suitable to operate as a contractual promise, that clause can become legally enforceable.
  • “Apt for incorporation”: A clause is more likely “apt” if it is clear, specific, important to the employment bargain, workable, and not merely guidance or aspiration.
  • “Will” vs “May”: In legal drafting, “will” often signals a requirement. Where the same provision uses “may” elsewhere, the contrast strongly indicates that “will” is mandatory.
  • “Micro-management” concern: Courts avoid running internal workplace procedures step-by-step. But they will enforce clear contractual minimum standards (e.g., who must hold a role), especially where that standard is a negotiated safeguard.
  • Implied term (by fact): A term a court reads into a contract only if it is necessary to make the contract work or so obvious it “goes without saying”. Here, the implied term was narrow: delegation only if the Medical Director cannot act at all (conflict/illness), not merely because delegation would be convenient.

5. Conclusion

MN v NHS Foundation Trust L [2026] EWCA Civ 71 confirms that a clearly drafted MHPS-consistent local policy can confer enforceable contractual rights on doctors, including senior governance protections at the investigatory stage. The Court treated the allocation of the Case Manager function as a substantive procedural safeguard for consultants: where E27 states the Medical Director “will act”, that obligation is mandatory and is not diluted by managerial preference for delegation. Any broader delegation regime must be achieved through proper policy amendment, not informal reallocation. The decision therefore recalibrates the boundary between managerial discretion and contractual process in NHS doctor investigations, and it will likely be relied upon wherever trusts seek flexibility inconsistent with the text of negotiated procedural frameworks.