Publication: The e-Regulator

The case of R (on the application of Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 970 (Admin), considered whether or not a claimant’s Article 6 right to an impartial and independent hearing was engaged in disciplinary proceedings.  On the facts it was held that Article 6 did not apply, as the decision of the Panel would not prevent Mr Puri practising as a doctor, but would only impact his current employment. 

The case clarifies the existing law: whether Article 6 is engaged in disciplinary proceedings is determined on a case by case basis, and the test to be applied is whether the nexus between the outcome of a disciplinary hearing and prevention of a claimant practising his profession is sufficiently strong.  It should be noted that one of the cases relied on by Blair J in these proceedings, R (G) v Governors of X School [2010] 1 W.L.R. 2218, is currently before the Supreme Court and so this judgment was given against a backdrop that may change.

Mr Puri was employed as a Consultant Urologist.  Following his dismissal for misconduct (four allegations of rudeness towards colleagues), Mr Puri brought a claim for judicial review.  He alleged that the employers' disciplinary and appeal panels considering his case were not impartial and independent, and thus his Article 6 rights had been breached.

Two of the main points addressed by Blair J in his judgment are:

  1. Was Mr Puri’s Article 6 right engaged?
  2. If it was engaged, was the composition of the panels sufficiently independent and impartial to meet the requirements of Article 6?

It is uncontroversial that the right to practise one’s profession is a civil right under Article 6(1).  However, it is clear that this principle must be applied on a case by case basis.  Mr Puri did not persuade the court that the decision to dismiss him prevented him from practising as a Consultant Urologist.  Indeed, he has been able to gain subsequent employment with a private hospital in Leeds.  Further, there was no indication that the allegations against him would result in being struck off the GMC Register.  The proceedings therefore related only to his right to retain specific employment, and not to practise generally.

Blair J stressed that there must be a close nexus between the outcome of the disciplinary procedure and the individual’s entry onto a ‘barred list’ before Article 6 rights will be engaged.  The cases considered in his judgment involved allegations of a very serious nature, akin to criminal charges.  If such allegations were upheld, then it was a virtual certainty that the individual would be struck off his professional register.  There was no such indication that this would follow from the allegations against Mr Puri, and so he was not entitled to challenge the composition of the Panel.

Holding that Mr Puri’s Article 6 rights were not engaged, Blair J then considered whether, had he reached a different conclusion, the composition of the Panel would be suitably independent to satisfy the Article 6 test.  One point on which he placed great weight was the extensive consultation and negotiations that had preceded the implementation of the disciplinary procedure, with the involvement of heavyweight organisations such as the British Medical Association.  This, he held, protected the best interests of doctors and along with the added safeguard of judicial review, satisfied the independence and impartiality requirements of Article 6. 

However, Blair J did point out that while the use of an external advisor was acceptable, such channels of communication should be transparent.  To operate otherwise could be deemed a breach of natural justice, and is something that NHS Trusts should be aware of in future investigations. 

This case is yet another demonstration of the uncertainty that surrounds the issue of when Article 6 is engaged at employer level.  The position is that in ordinary disciplinary proceedings, where all that is at stake is the loss of a specific job, Article 6 can not apply.  Yet if the effect of the proceedings could be to deprive an employee of the right to practise his or her profession, (as in Kulkarni   v Milton Keynes Hospital [2008] EWHC 1861 (QB)) Article 6 rights can be invoked. The question is whether the outcome of the proceedings will have a substantial influence or effect on the determination of that right, as in R (G) v Governors of X School. Puri confirms that the application of Article 6 to disciplinary proceedings is envisaged only in exceptional circumstances.