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A cardiology consultant's civil right to practise his profession had not been determined by an NHS trust's disciplinary process and his subsequent dismissal as he was still a fully-registered medical practitioner who was able to seek employment or be self-employed.
The claimant (M) sought an order that his dismissal by the defendant trust should be set aside. M had been employed as a non-invasive cardiology and general medicine consultant, but was suspended on disciplinary grounds. Before he resumed practice, the trust arranged for him to undergo re-skilling. M thought that, for research purposes, the re-skilling should continue for an additional six months, possibly spent in the United States. The trust disagreed and removed the reference to that additional training from its action plan. M failed to sign the plan despite repeated requests to do so. M's conduct was investigated. The investigator noted allegations including, in relation to the plan, a refusal to comply with reasonable requirements and instructions, and acting in an unmanageable way. The matter was to be considered by the trust's chief executive (X) at a misconduct hearing. M sought to adjourn the hearing, but X, considering that he had already adjourned it six times, and M's failure to attend appointments with an assessing occupational health consultant, refused the request. M was dismissed and his appeal was pending. At the instant hearing it was common ground that a document called the Procedure for Conduct and Capability Concerns in Relation to Medical and Dental Staff was incorporated into the employment contract between M and the trust. M submitted that (1) under clause 3.2 of the Procedure document, the trust had to seek independent professional advice during the investigation and X should have had the benefit of a medically-qualified member of a disciplinary panel who was independent of the trust; (2) the trust breached the contract by not adjourning the misconduct hearing; (3) the dismissal process and his appeal constituted a determination of a civil right, as his dismissal by a public body was the equivalent of being struck off the medical register and barred from practice in the NHS, and his right under the European Convention on Human Rights 1950 art.6 had been breached, as he was not provided with an independent and impartial tribunal.
HELD: (1) The trust did not breach clause 3.2. Re-skilling did not involve M in exercising his professional skills, but was an exercise whereby he could come to do so. Further, the allegation was nothing to do with such an exercise. The hospital's management knew what M's job had been and was to be and identifying it did not require any medical input. Further, the re-skilling was to be undertaken with experienced cardiologists. In any event, the dispute related to M's request to have six months of training in the US, and the cardiology aspects of the re-skilling provided no significant difficulties. It was reasonable for the trust to be interested in getting M back to work. It was entitled to make reasonable demands of M and the requirement that he be re-skilled as a consultant cardiologist for which post he had been engaged without a period for academic re-skilling was reasonable and rational (see paras 46-49, 52, 64 of judgment). (2) X's response to the request that the hearing be adjourned again was reasonable. M conducted himself as to preclude the occupational health assessor from offering an opinion on M's ability to attend the hearing. Further, M did not tell X where he was (paras 77-78). (3) Arguably, there was at least a civil right to practise the profession in which one was qualified, R (on the application of Puri) v Bradford Teaching Hospitals NHS Foundation Trust (2011) EWHC 970 (Admin), (2011) IRLR 582 applied. However, the process had no effect on the General Medical Council, which adopted and followed, in a way compliant with art.6, a procedure given by the legislative regime under which it operated. Consequently it did not play a major part in the civil right's determination, R (on the application of G) v X School Governors (2011) UKSC 30, (2011) 3 WLR 237 considered. Further, it was open to M to seek to practise his profession within both the private and the public sectors. A right to practise one's profession did not have, as a correlative, an obligation that a particular job or employment be provided. He was still a fully-registered medical practitioner who was able to seek employment or be self-employed. His right to practise his profession remained. His civil right had therefore not been determined by the trust's process. X did not, by himself, constitute an independent and impartial tribunal in respect of the possible dismissal of an employee at that trust, G considered. Nevertheless, art.6 was not engaged (paras 94-95, 103, 113).