You may recall the recent case of R (On the application of "G") v The Governors of "X" School and "Y" Council, which was featured in our e-update of 26 March. In that case, the High Court ruled that a school music assistant, who faced disciplinary proceedings concerning an allegation of kissing a 15 year old pupil, was entitled to be legally represented during those proceedings (as opposed to simply having his statutory right to be accompanied by a colleague or trade union representative). This was because of the seriousness of the allegation and the severity of the consequences of a referral under the Education Act 2002, which the school was obliged to make and which could have resulted in him being prohibited from working with children in educational establishments.
Interestingly, no mention was made in that case of the High Court's decision in the earlier case of Kulkarni v Milton Keynes Hospital NHS Trust on similar facts. Dr Kulkarni was a doctor who, shortly after starting work for Milton Keynes Hospital NHS Trust, was accused of improperly touching a patient. He was not permitted to have legal representation at a subsequent disciplinary hearing and he claimed that this infringed his human right to a fair trial, in terms of Article 6 of the European Convention on Human Rights. The High Court rejected his claim, but that decision has now been overturned in the Court of Appeal.
Lady Justice Smith ruled that, in effect, the relevant disciplinary procedure provided for a contractual right to be legally represented by a lawyer instructed by the Medical Protection Society. Whilst the procedure stated that an employee's representative could be legally qualified but would not "be representing the practitioner formally in a legal capacity", Lady Justice Smith ruled that the words quoted above were meaningless and should be "blue-pencilled" (i.e. deleted). There was, therefore, no requirement to rule on the Article 6 issue.
The decision means that an NHS Trust doctor facing serious disciplinary allegations has the contractual right to a legal representative instructed by his medical defence organisation.
Of wider interest, however, are the potential implications for all public sector employees, owing to the (non-binding but persuasive) observations which Lady Justice Smith made in relation to an individual's Article 6 right to a fair trial.
Lady Justice Smith indicated that had she been obliged to rule on the claimant's Article 6 argument, she would have held that it was engaged in circumstances where a doctor faced charges which were "of such gravity" that if proven, would have effectively barred them from employment in the NHS. She went on to indicate that even in the context of civil proceedings, Article 6 would imply a right to legal representation in such circumstances because the doctor faced, in effect, a criminal charge and although it was being dealt with by disciplinary proceedings, the issues were virtually the same and the consequences of a finding of guilt very serious.
This decision clearly has significant potential implications for all public sector employees, not just doctors. For example, public sector employees in areas such as social care and teaching are likely to seek to rely on these comments, where dismissal leads to mandatory reporting to an external body which may lead to it being extremely difficult, if not impossible, for an individual to work in that field again.
Given the potential impact on internal disciplinary proceedings for public sector employees, permission to appeal to the Supreme Court has been granted on the ground that this is a point of law of public importance.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
