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The right to legal representation in NHS disciplinary hearing

Posted on 29th July 2009
Case law

NHS doctors and dentists are entitled to legal representation at internal disciplinary hearings concerned with serious allegations. This right may apply to all public bodies.

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the companion may be legally qualified

Dr Kunal Kulkarni v Milton Keynes Hospital NHS Trust (Court of Appeal)

Background

The judgment is important for two reasons:

First, it effectively reintroduces the right for NHS doctors and dentists to be legally represented which originally existed in their standard terms and conditions of employment up to 2005. Subsequently this right was removed as part of the new consultant contracts.

Secondly, the Court strongly suggested that all employees of public bodies should have the right to be legally represented at internal disciplinary proceedings which may result in a dismissal with the consequence that the employee may never be able to practice his or her profession again. This is necessary to comply with Article 6 of the European Convention on Human Rights.

Dr Kunal was accused of serious professional misconduct. He asked to be legally respresented at his disciplinary hearing. He felt this was essential because he was at real risk of being dismissed and if this happened this would make him effectively unemployable by any other NHS employer.

The employer refused his request. Dr Kunal applied to the High Court for an injuction to compel the NHS Trust to permit him to be legally represented. The application was not successful and he appealed to the Court of Appeal and won the right to be legally represented.

At the time the new consultant contracts were introduced a new disciplinary procedure was also introduced which treated doctors and dentists like any other employee when charged with serious allegations. The procedure allowed for the doctor or dentist to be accompanied by a companion who "may be legally qualified but he or she will not be acting in a legal capacity." NHS employers interpreted this clause as meaning that the new procedure prevented a doctor or dentist from being legally represented.

Dr Kunal said this restriction was a breach of Article 6, which requires that in a hearing determining civil rights and obligations a party is entitled to have legal representation.

The decision

The Court of Appeal based its decision on the wording of the new disciplinary procedure. It deleted the reference to "but he or she will not be acting in a legal capacity" describing this as a meaningless statement! This left the rest of the sentence confirming that the companion "may be legally qualified."

The Court did not have to decide the Article 6 issue because it reached its decision based on the above contract. Nevertheless it gave its view that Article 6 should apply because the doctor was facing a quasi criminal charge albeit via disciplinary proceedings with very serious consequences if found guilty.

Future developments

This decision will be welcomed by doctors and dentists.

It is anticipated that other public sector employees who would find future employment very difficult if dismissed will try and rely on this decision and argue that they should be allowed to be legally represented.

If Article 6 does apply then additional elements of what makes a fair trial may have to be observed by public sector employers, such as the right to an independent panel to hear the case.

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