Right to legal representation at disciplinary hearings 3/8/09
The Court of Appeal has held, in the case of Kulkarni v Milton Keynes Hospital NHS Foundation Trust and another, that, in certain circumstances, doctors working within the NHS who are faced with disciplinary proceedings are entitled to be represented by a solicitor at the employer’s disciplinary hearing. The court also made some general comments which, if followed in subsequent cases, may extend this right to be legally represented to other public sector employees.
The decision
The case concerned a junior doctor, Dr Kulkarni, who was facing allegations of professional misconduct. His employer, Milton Keynes Hospital NHS Trust (“the Trust”), had conducted an investigation and proceeded to invite Dr Kulkarni to a disciplinary hearing to address these allegations. Dr Kulkarni then made a request to his employer through his medical defence organisation, the Medical Protection Society, to be represented by a solicitor at the disciplinary hearing. The Trust refused Dr Kulkarni’s request.
Consequently, Dr Kulkarni applied to the High Court for an order to compel the Trust to allow him legal representation. The High Court refused Dr Kulkarni’s application - he then appealed this decision to the Court of Appeal.
The Court of Appeal upheld Dr Kulkarni’s appeal, holding that he was contractually entitled to have a solicitor present during the disciplinary hearing. In doing so, the court held that, whilst Dr Kulkarni had a contractual right to have a solicitor present at the disciplinary hearing, this entitlement did not allow him to be represented by a solicitor of his own choosing. His contractual entitlement arose from his membership of a medical defence organisation. As a result, his contractual entitlement only extended to being represented by a solicitor that had been instructed or retained by his medical defence organisation.
A potential human rights violation
In an aside to its judgement, the Court of Appeal made some interesting comments on what the position may have been if the employee had not been contractually entitled to legal representation in the circumstances (where, for example, a doctor is not a member of a medical defence organisation). The court stated that, where one potential outcome of the disciplinary proceedings was the loss of the employee’s career (as opposed to his or her job) then the employee would have a right to have a solicitor present during the Disciplinary Hearing. The court went on to suggest that, in the absence of a contractual entitlement, the right to representation would be based on the employee’s right to a fair trial, as guaranteed by Article 6 of the European Convention on Human Rights (“ECHR”).
It should be noted, however, that these comments on the applicability of Article 6 did not form part of the decision-making process by the court and, whilst they are persuasive, they are not binding on future courts that may have to decide on the issue.
Implications of the decision
The decision effectively means that any NHS Trust doctor (or dentist) facing disciplinary charges has the contractual right to legal representation at the employer’s disciplinary hearing where 1. the doctor / dentist is a member of a medical defence organisation and 2. that organisation instructs a solicitor on his or her behalf.
In addition, if subsequent courts follow the Court of Appeal’s later comments in this case, Article 6 of the ECHR may allow many medical professionals, including doctors, dentists and nurses, who are employed by the NHS to insist on the right to legal representation at disciplinary hearings where a potential outcome of the disciplinary hearing is the termination of their employment by the NHS. It should be remembered that these medical professionals are unlikely to be able to practice outwith the NHS: the termination of their employment with the NHS could also, therefore, amount to the loss of their career. The same may also be said of other employees who work for other “monopoly public service providers”.
The most important point to note is that the NHS is currently bound by the Court of Appeal’s decision in the Kulkarni case but that leave to appeal to the House of Lords has been granted. We shall update you on the developments in the appeal as and when they occur.
Further information
or further information on the issues raised in this ezine, please contact Alun Thomas, Alan Glazer or your usual contact within the Employment Team.
This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.
