Independent hearing challenge resisted

15 April 2011

The High Court has today rejected a case arguing that a doctor facing conduct hearings should have an independent panel on the basis that Article 6 of the Human Rights Act (the right to a fair hearing) requires this.

The Judgment was handed down this morning and will no doubt be analysed closely. However, in basic terms, Mr Justice Blair concluded that this was not a case in which the effect of the disciplinary proceedings was to deprive Mr Puri of the right to practise his profession, within or outside the NHS, accordingly Article 6 was not engaged. He did accept that Article 6 may be engaged, exceptionally, in such disciplinary circumstances: however, if it had been engaged, the Judge considered that the disciplinary panel was compliant but left open the possibility that the appeal panel was not. He did not accept that there had been waiver of these arguments in respect of the agreement of the procedures locally or by a failure to object earlier.

This matter is very likely to be appealed; leave has been granted. Other cases are also being pursued on a similar basis and they may all be overtaken by the Supreme Court decision in G -v- X upon which we have reported at the High Court and Court of Appeal stages.

Until there is appeal level precedent in this area there remains the opportunity for medical personnel (and indeed other professionals in the NHS) to argue that, where they are facing dismissal and where this is likely to significantly affect their chances of re-employment elsewhere, the determination of their contracts should be heard independently of the employer. Injunctions can be sought on this basis to prevent employers moving to a hearing.

There are significant policy issues involved. If such arguments are accepted then the ability of employers to decide matters concerning their own employees will be largely removed in key areas. The processes for medical personnel are already significantly different; with an established right to legal representation and independent elements at any hearings both in conduct and capability cases.

We will report further but in the circumstances where this case may have immediate effect we want to ensure that you are aware of it as soon as possible."