Puri v. Bradford Teaching Hospital

 

Mr Justice Blair accepted that Article 6 (1) ECHR may be engaged in respect of doctors disciplinary matters but only in exceptional cases. He also ruled that in matters of misconduct the disciplinary panel under MHPS, the NHS’s disciplinary procedure for doctors and dentists, was Article 6 compliant. He left open the possibility that the appeal panel was not compliant with Article 6.

 

 

Judgment was today handed down in the case of R on the application of Mr Rajiv Puri v. Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 970 (Admin). Mr Puri was represented by Giles Powell and Nicola Newbegin and the Trust by Mark Sutton QC, all of whom are members of Old Square Chambers. The Trust was also represented by Mr John Bowers QC.

 

 

Mr Puri is a consultant urologist who was dismissed by the Trust. Mr Puri alleged that the dismissal was determinative of his civil rights and that, as such, Article 6 ECHR was engaged. This was on three bases: (a) that it involved his right to a particular job, (b) that it was determinative of his right to practise his profession (per the decision of the ECHR in Belgium v Le Compte); and (c) that it was determinative of his professional reputation (per the decision of the ECHR in Werner v Poland). As such he was entitled to an independent and impartial tribunal, with, at the least, a majority of non-Trust employees.

 

It was accepted by the Trust that a process that prevents a person from practising their profession involves the determination of a civil right and that in such circumstances Article 6 would be engaged. It did not accept that it was engaged in any other way nor that it was engaged on the facts of this case.

 

 

 Blair J did not accept that Article 6 was engaged in this case: he did not accept that it was engaged where the loss of a specific job is involved and he did not consider that there was an actionable right to a professional reputation nor that the procedure in question was determinative of that right.

 

In terms of the right to practice, he accepted that it could be engaged, but found that it was not on the facts of this case on the basis that Mr Puri could still practice as a consultant urologist, albeit not in his specialist area and albeit that it would be difficult for him to obtain another job in the NHS.

 

Furthermore Blair J considered that there could still be an independent and impartial tribunal, even where the majority of employees are employed by the Trust.

 

Blair J did not however accept the Trust’s arguments that Mr Puri had waived his right to an independent an impartial tribunal by virtue of either his position on the committee that negotiated the disciplinary procedures nor his failure to object to the composition of the disciplinary tribunal prior to their hearing of his case.

 

 

The case is significant because it is the first domestic case in which a professional has sought to argue that their dismissal involved a breach of Article 6 because it was determinative of their professional reputation. This is based upon the decision of the ECHR in Werner v. Poland and it is understood is the first time a domestic court has considered its application in the field of professional discipline.

 

It is also significant because it is one of a number of recent cases that are seeking to determine where the bright line (or even the murky grey area) between a dismissal that is determinative of one’s civil right to practice one’s profession and one which is not.

 

 

Mr Puri has been granted permission to appeal to the Court of Appeal on all grounds and the Trust has been granted permission to appeal in respect of waiver.

 

This note was prepared by Nicola Newbegin and Giles Powell