Right to legal representation at disciplinary hearings is re-established

24 July 2009
  

Summary
Earlier this year, we issued an “Insights” which dealt with the High Court judgment in Kulkarni-v-Milton Keynes Hospital NHS Foundation Trust (“Kulkarni”) concerning the right to legal representation at disciplinary hearings. The Court of Appeal has recently issued its judgment in Kulkarni and this judgment establishes the right of doctors and dentists employed within the NHS to be legally represented at internal disciplinary hearings in certain circumstances. It may also have a wider application for other public sector employers.

Facts of case
Dr. Kulkarni was accused of inappropriately examining a patient and taken to internal disciplinary proceedings. Dr. Kulkarni was represented by the Medical Protection Society (“MPS”). The Society asked if he could be legally represented. The Trust refused and stated that, in accordance with maintaining high professional standards in the modern NHS (“MHPS”) (which it had incorporated into Dr. Kulkarni’s contract of employment) he was only entitled to be accompanied by a legally qualified person “not acting in a legal capacity”.

Judgment of the Court of Appeal

The Court decided:
1. Paragraph 22 of Part IV of MHPS sets out the Practitioner’s right to representation in conduct, capability (competence) and ill-health hearings.

2. The expression “not acting in a legal capacity” in the MHPS document was meaningless.

3. Practitioners have the following rights at disciplinary hearings convened under Part IV of MHPS:

• The right to be represented by a legally qualified person employed or retained by a defence organisation.
• The right to be represented by a legally qualified person who is a spouse, partner, colleague or friend.

4. Practitioners are not permitted to be accompanied by a legally qualified person who is independently instructed or retained (for example, a privately instructed solicitor).

The court also observed that, if a Practitioner, who has no access to the permitted categories of legal representative set out above, is facing disciplinary charges which are so serious that, if proven, they will effectively prevent him from obtaining other employment within the NHS, Article 6 of the European Convention on Human Rights implies a right to legal representation at the internal disciplinary hearing. However, the court acknowledged that this goes directly against the provisions of MHPS. The court suggested that employers should, at least, give fair consideration to such requests for legal representation.

The court also suggested that the Secretary of State for Health should give further thought to this issue.

Practical Effect for NHS and Public Sector employers
If a Practitioner is facing disciplinary proceedings under MHPS and requests legal representation at the disciplinary hearing, the Practitioner is likely to have the restricted right to legal representation set out above, although every case will, of course, be dependent upon its own facts and circumstances.

If a Practitioner or other public sector employee faces disciplinary charges which are so serious that, if proven, they will be seriously career limiting, employers should give their consideration to any request for legal representation.

Hill Dickinson’s public sector employment team will be considering this case in further detail at its forthcoming summer surgeries. If you have not received an invitation to our summer surgeries, please contact us.