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 EWCA Civ 789, Court of Appeal - John Hendy QC
The Court of Appeal today handed down judgment in the case of Dr Kulkarni v. Milton Keynes Hospital NHS Foundation Trust. Dr Kulkarni was successfully represented by Mr Jonathan Davies led by John Hendy QC, both of Old Square Chambers.
The judgment was highly significant for two reasons:
· it establishes that doctors and dentists employed by the National Health Service are entitled to legal representation at internal disciplinary hearings to determine serious disciplinary charges made against them;
· it strongly suggests (albeit obiter) in relation to all employees of public bodies that internal disciplinary proceedings which may result in dismissal in circumstances where, as a direct consequence of that dismissal the dismissed employee is effectively prevented from ever practising his profession again, must comply with Article 6 of the European Convention of Human Rights.
Doctors and Dentists
The outcome effectively reintroduces the right to legal representation that doctors enjoyed in their standard terms and conditions of employment which the Department of Health removed as part of the new consultant contract that was introduced in 2005.
Until the introduction of the new consultant contract, doctors enjoyed the express contractual right to have disciplinary charges made against them by their employing trust to be determined by an independent panel consisting of a legally qualified chairman together with the right to be represented by a lawyer. Those procedures were set out in Department of Health Circular HC90(9).
It has long been accepted by the courts that the dismissal of a medical practitioner on grounds of professional misconduct or incompetence by one NHS Trust will inevitably mean that the practitioner is unable to work for any NHS Trust. The National Health Service is, to all intents and purposes, a single employer for the whole country and the dismissed doctor or dentist becomes unemployable. For those reasons, HC90(9) was an important safeguard against doctors losing their careers on the basis of unjustified allegations of misconduct or capability: Skidmore v Dartford & Gravesham NHS Trust  ICR 721, HL.
As part of the negotiations resulting in the new consultant contract, a new disciplinary procedure, Maintaining High Professional Standards in the Modern NHS, (“MHPS”) was introduced by the Secretary of State for Health. Under that procedure, the protection of HC90(9) was removed and doctors were to be treated like any other employee when faced with serious disciplinary charges. The stance taken by most NHS Trusts was that the new procedure excluded the right the legal representation. NHS Trusts in England were required to introduce disciplinary procedures that complied with MHPS.
Dr Kulkarni, who was facing charges of serious professional misconduct, requested through his medical defence organisation, the Medical Protection Society, permission from his employer to bring a legal representative to the dismissal meeting. The Trust refused.
He applied to the High Court for an injunction to compel his employing Trust to permit him legal representation. Dr Kulkarni argued that clauses in MHPS and in the Trust’s disciplinary procedure which the Trust asserted limited legal representation were meaningless. Dr Kulkarni asserted that the failure to permit him legal representation (at no cost to the employer) was a breach of both the implied term of trust and confidence and Article 6 of the European Convention on Human Rights. The Trust, being a public employer, had to act in compliance with the ECHR. Article 6, if it applied, required that, in a hearing determining civil rights and obligations, a party was entitled to have legal representation.
The Trust relied on an express term of its disciplinary procedure (which had to be construed consistently with MHPS) as expressly excluding the right to legal representation. That clause provided that the doctor may be accompanied by a companion who ‘may be legally qualified but he or she will not be acting in a legal capacity’. The Trust argued that an implied term cannot override an express one and that Article 6 did not apply to internal disciplinary proceedings and, in any event, the practitioner could bring a claim in the employment tribunal or have his guilt or innocence determined at a hearing before the General Medical Council, as both bodies were Article 6 compliant.
The High Court refused the injunction. Dr Kulkarni appealed to the Court of Appeal.
The Court of Appeal determined the appeal by reference to the express provisions of MHPS. It found that paragraph 22 of Part IV of MHPS set out the practitioner’s right to representation in both conduct and capability hearings (not just the latter as hitherto thought) and that the expression ‘not representing the practitioner formally in a legal capacity’ in that provision (which was slightly different to the Trust’s disciplinary procedure provision) was meaningless and should be blue-pencilled. The court then construed the remainder of the MHPS provision to mean that Dr Kulkarni was contractually entitled to be represented at his disciplinary hearing by a lawyer instructed by the Medical Protection Society. The implied term of trust and confidence was therefore irrelevant.
The consequence of the decision is that any NHS Trust doctor facing serious disciplinary charges on misconduct or capability grounds has the contractual right to a legal representative instructed or retained by his medical defence organisation.
The decision applies to all NHS employed doctors and dentists in England, since the disciplinary policy of every NHS Trust and Body in England must comply with MHPS. For Foundation Trusts MHPS is only advisory but the extent that this permits such Trusts to deny legal representation may be required to be tested. The judgment is a welcome development for doctors and dentists. Indeed, Smith LJ, who gave the leading judgment said that it may be sensible for the Secretary of State to give further thought to question of legal representation in the light of the Court of Appeal’s decision. A procedure similar to HC(90)9 maintaining legal representation still applies in Wales. Since MHPS applies to both professional and non-professional conduct, it is arguable that the decision gives a right of legal representation on a wider basis than the defunct HC(90)9 which was confined to allegations relating to serious professional misconduct or incompetence.
Of potentially even wider interest are the obiter dicta in relation to Article 6. Having determined the appeal in his favour by reference to the express terms of MHPS, the Court of Appeal had no need to determine the arguments on Article 6. However, Smith LJ, who gave the leading judgment, said that:
· she would have held that Article 6 is engaged where an NHS doctor faces charges which are of such gravity that, in the event they are found proved, he will be effectively barred from employment in the NHS;
· in the context of civil proceedings of this kind, Article 6 should imply such a right to legal representation because the doctor is facing what is in effect a criminal charge, although it is being dealt with by disciplinary proceedings. The issues are virtually the same and, although the consequences of a finding of guilt cannot be the deprivation of liberty, they can be very serious.
She rejected the Trust’s argument that that, even if Article 6 was engaged and even if the initial disciplinary proceedings brought by the Trust were not compliant, the process taken as a whole would be compliant because Dr Kulkarni had recourse to the employment tribunal in a claim for unfair dismissal or might have the chance to establish his innocence if he was referred to the General Medical Council in relation to the disciplinary charges levelled against him.
The Court of Appeal held that a doctor appearing before a GMC Fitness to Practice Panel has full rights of representation before the GMC but the process undertaken there cannot be described as ‘subsequent control by a judicial body’ of the Trust’s disciplinary proceedings. First of all, the GMC is not a judicial body. Second, it does not conduct an appeal from the disciplinary proceedings by the employer. It decides whether the doctor’s fitness to practise is impaired. Further, there was no certainty that there will be GMC proceedings, as the doctor cannot instigate them.
Employment tribunal proceedings are of a different nature from disciplinary proceedings and the issues which the employment tribunal has to consider (in a case where the dismissal has been by reason of misconduct) is not whether the employee was guilty of the misconduct but whether, having conducted a reasonably thorough investigation, the employer believed that the employee was guilty of the misconduct alleged and dismissed him for that reason; also whether the employer acted reasonably in treating that misconduct as a sufficient reason to dismiss the employee. In short, the employment tribunal does not decide the crucial question of fact for an employee in Dr Kulkarni’s position. It was not a tribunal of full jurisdiction.
These obiter dicta will no doubt be relied upon by other public sector employees who work for effective monopoly employers who are facing serious charges that they should be entitled to an internal disciplinary hearing that is compliant with Article 6 including the right to legal representation. Furthermore, if Article 6 does apply then further elements of the right to a fair trial may be required of the public sector employer. These include the right to an independent panel to hear the case. It is hard to see how that demand could be resisted. That would go a long way to restore the important protections which NHS doctors and dentists lost when HC(90)9 was abolished.