The Court of Appeal, in the case of Dr Kunal Kulkarni v Milton Keynes Hospital NHS Foundation Trust, has ruled that NHS doctors and dentists are entitled, under the terms of their contracts, to legal representation at internal hearings when facing charges of serious misconduct or capability.
This decision has an immediate impact on all NHS trusts as all NHS doctors and dentists who face disciplinary proceedings in cases of alleged serious misconduct or capability will now have a contractual right to legal representation by a legal representative instructed or retained by his/her medical defence organisation. This goes beyond the statutory right for employees to be accompanied only by a work colleague or a trade union representative.
The decision also stated that where an NHS doctor or dentist faces disciplinary charges of such gravity that they may be unable to work again in the NHS, then Article 6 (right to a fair trial) of the European Convention on Human Rights (ECHR) will give them the right to be legal represented at any disciplinary hearing, regardless of whether such representative is retained or instructed by a medical defence organisation. This part of the Court of Appeal's decision is not binding (as the Court did not need to decide this point), but does give a strong indication of their views on this issue. This could extend to other areas of the public sector (as the ECHR can be directly relied up on by employees of public sector employers) in any situation where employees are facing charges which could effectively prevent them from continuing their chosen profession.
This ruling appears similar to the High Court decision in R v The Governors of 'X' School (see newsflash of 23 March 2009), which ruled that a music assistant who was dismissed because of alleged impropriety with a 15 year old pupil should have been entitled to legal representation at his disciplinary hearing. Both decisions show a shift in the law towards allowing some form of legal representation for employees who are facing career threatening allegations.
The case of Dr Kunal Kulkarni v Milton Keynes Hospital NHS Foundation Trust involved a junior doctor (Dr K) who was accused of serious professional misconduct. The Trust invited Dr K to a disciplinary hearing.
Dr K, advised by the Medical Protection Society (MPS) of which he was a member, asked whether he was entitled to legal representation at the disciplinary hearing. The Trust's HR Director advised Dr K that he was not entitled to be accompanied by anyone acting in a legal capacity, as outlined in the Trust's contractual disciplinary procedure.
Dr K's MPS adviser argued that this case was so serious that the Trust should exercise its discretion and allow Dr K to be legally represented. The Trust refused on the basis that its procedures were based on the Department of Health's policy document "Maintaining High Professional Standards in the Modern NHS" (MHPS) which did not permit legal representation and they were not prepared to exercise any discretion in these circumstances to allow it.
Dr K then sought an injunction to require the Trust to allow Dr K to be legally represented. The High Court refused and an appeal was made to the Court of Appeal.
The Court of Appeal analysed the wording of the Trust's disciplinary procedure and MHPS and decided that Dr K did have the contractual right to legal representation by a legal representative instructed or retained by his medical defence organisation.
Although they did not need to do so, they went on to consider whether there would be a right for a doctor in Dr K's position to instruct a lawyer independently of the MPS and decided (albeit non-binding) that Article 6 of ECHR could be engaged in this case and that to give effect to it (i.e. to ensure a fair trial), a doctor would have the right to such legal representation. In Dr K's particular case this was irrelevant as he was obtaining legal representation through the MPS.
Due to the far-reaching public importance of this decision, permission to appeal to the Supreme Court has been given.