MPS secures right of legal representation in disciplinary hearings
MPS secured a significant victory at the Court of Appeal this July, with major ramifications for NHS disciplinary hearings.
The judgment in Kulkarni v Milton Keynes Hospital NHS Foundation Trust and the Secretary of State for Health means that doctors and dentists employed by the NHS are entitled to legal representation at disciplinary hearings involving serious charges.
There was also comment from the Court that internal disciplinary proceedings held by public bodies which raise career threatening allegations must comply with Article 6 of the European Convention on Human Rights (ECHR) – the right to a fair trial.
Background
The case arose after a junior doctor in England, faced serious professional misconduct allegations. MPS prepared to instruct a lawyer to represent him at the proposed disciplinary, but the trust cited Maintaining High Professional Standards in the Modern NHS (MHPS) – a policy governing disciplinary procedures in England, which barred the doctor from legal representation.
MHPS says that doctors and dentists may be accompanied to a disciplinary hearing by a companion who may be another trust employee, BMA or MDO representative, or friend. The companion “may be legally qualified but he or she will not be acting in a legal capacity”. Before the introduction of MHPS in 2005, doctors and dentists had a contractual right to be represented by a lawyer.
Court of Appeal decision
Following a failed application to the High Court, MPS went to the Court of Appeal, where the appeal was unanimously upheld. The Court decided that MHPS should be interpreted in a way which allows a doctor to be legally represented.
The Court also commented that Article 6 of the ECHR would apply in cases where allegations could destroy an individual’s career.
Our views
MPS believes that the denial of legal representation when a healthcare professional is facing career threatening allegations before a disciplinary panel is grossly unfair. The consequences of disciplinary sanction in the NHS can be catastrophic to a practitioner’s future career. The NHS is a monopoly employer and, in practice, a doctor or dentist dismissed from their post becomes virtually unemployable.
Wider ramifications
The outcome of this case will have been noticed by public sector employees outside healthcare, who could argue for the same representation when faced with allegations which could jeopardise their entire career.
Furthermore, on the basis that Article 6 applies to these cases, NHS and other public sector employees may be able to seek additional protections afforded by the right to a fair trial, such as having an independent panel to hear the case.
A look to the future
MPS supported this case because it raised fundamental points of principle that were in the interests of the wider medical and dental professions. Following the Court of Appeal’s decision and other cases brought by MPS to challenge the fairness of disciplinary hearings, we believe that the time is right for a root and branch review of disciplinary proceedings and the way they are implemented by NHS trusts.