MHPS: Article 6 and contractual rights

27 August 2010

Further to our recent insight further clarification as to Article 6 rights (right to a fair hearing) in the context of NHS disciplinary hearings and doctors has come in the case of Hameed v Central Manchester University Hospitals NHS Trust.

Dr Hameed; a staff grade ophthalmologist, was dismissed by the respondent NHS trust following an investigation and a disciplinary hearing. The trust applied the provisions of Maintaining High Professional Standards in the Modern NHS (MHPS). In this case that involved an internal disciplinary hearing as amended by MHPS to include some external membership because the allegations were of professional misconduct. However, it was not an independent panel

Dr Hameed relied on the remarks of Lord Justice Smith in Kulkarni v Milton Keynes Hospital NHS Foundation Trust to argue that Article 6 rights were engaged in relation to her disciplinary proceedings. If correct this could have far-reaching consequences; Article 6 provides for a “a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. MHPS procedures do not require this.

The court distinguished Dr Hameed’s circumstances from those of Dr Kulkarni. Dr Kulkarni was a trainee doctor accused of sexual assault, had a finding been made against him he would effectively be prevented from training as a doctor in the UK, as an alert letter was likely to be issued against his name and the NHS is the only employer for training purposes. This would effectively bar him from the opportunity to complete training and from future employment in his chosen profession. In the Hameed case The Honourable Mrs Justice Smith found that “Although the fact that the Dr Hameed had been dismissed by the Trust would obviously present a considerable handicap in obtaining work in the future. I do not accept that the claimant’s dismissal would have the same effect as Kulkarni”. The High Court took into account the evidence of the respondent that doctors previously subject to disciplinary proceedings have been re employed in other NHS trust hospitals and privately.

Given the considerable importance of the decision the claimant was given leave to appeal on the issue of whether Article 6 rights were engaged and we shall report on the outcome of any appeal in due course.

The practical effect of this element of the decision is limited in immediate terms for cases involving doctors or dentists in the NHS because under MHPS they gain the right to legal representation in the limited circumstances set out in MHPS. Of course for other staff and outside the NHS it reinforces the principle that to receive the right to legal representation requires fairly singular circumstances.

Is MHPS a contractual provision?
The case also dealt with the contractual status of the provisions in MHPS. It was argued by the trust that not all of the provisions of the trust procedure/MHPS created express contractual obligations. Further, Dr Hameed argued that the trust was obliged to observe the procedure in essence and to act consistently with it. The trust accepted that a breach of this obligation may amount to a breach of the implied term of mutual trust and confidence between employer and employee.

The court decided that by virtue of the implied term of trust and confidence, as implied in every employment contract, the trust was under a duty to act consistently with its procedure. However, applying the case of Johnson v Unisys Limited, that implied term of trust and confidence, and the requirement of fairness that flows from the implied term, cannot extend to a disciplinary process that leads to a dismissal. This is because a common law right affecting the way in which an employee is dismissed cannot co-exist with the statutory right not to be unfairly dismissed. Therefore any implied rights of fairness can not override the statutory regime already in place.

However, it was confirmed that, in the main, MHPS should be treated as creating express contractual rights, although not each and every provision of MHPS/trust procedure is apt to be treated as an express contractual requirement. Provisions which do not create express rights are those provisions that are too vague or discursive. Specifically the requirement in the procedure that a hearing should be conducted courteously and fairly does amount to an express contractual right and a breach of that term would be actionable as a breach of contract separate to the implied term of trust and confidence.

Practical guidance
In this case, Dr Hameed made a series of criticisms of the procedure followed by the trust. The judge dealt in detail with these issues and the findings may provide helpful guidance to trusts when handling future cases under MHPS. The court found:

1. Employers are obliged to consider very carefully the question of exclusion and need to be able to demonstrate that this issue has been given due consideration. Ideally case conferences considering exclusion and subsequent exclusion review meetings should be minuted and the reasons for exclusion (or continued exclusion) should be recorded in writing.
2. There is no obligation to speak to NCAS before immediate exclusion, but NCAS advice should be sought before formal exclusion.
3. There is no breach of contract if the first approach to NCAS is made by someone other than the Chief Executive/Medical Director.
4. The trust need not disclose to the employee the evidence gathered during the course of its investigation, until such time as a recommendation has been made that the case should proceed to a disciplinary hearing.
5. Not all cases of professional misconduct will require the investigating officer to seek an independent professional advice. Such advice was only required when it was “appropriate”.
6. The disciplinary panel has no power to compel witnesses to give evidence as there is no contractual obligation upon a witness to give evidence. This point may be debatable. It was not suggested to the court in this case that compelling a witness to give evidence in internal disciplinary proceedings may amount to a reasonable management instruction.
7. The claimant should have started to prepare for the disciplinary hearing when she knew that she would be required to appear at a disciplinary hearing, notwithstanding that the actual date of the hearing was provided to her in a later letter. The claimant’s argument that she had inadequate time to prepare for the hearing, as she was only told of the actual date of the hearing approximately 5 days in advance, was not upheld.
8. The chair of the disciplinary panel may reasonably intervene in employee/employee representative questioning of witnesses to ensure proceedings remain under control and focused on the relevant issues.

Whilst the findings in this case are likely to apply to many cases handled under MHPS, trusts should bear in mind that each case will, to a degree, depend on its own facts and the findings made in this case may not necessarily be applicable in every case.