+Scott Watson

Tuesday, 10 May 2011

Doctor not entitled to legal representation for internal disciplinary hearing

Doctor not entitled to legal representation for internal disciplinary hearing - Puri v Bradford Teaching Hospitals NHS Foundation Trust

The High Court has held that, were internal disciplinary procedures are concerned, human rights law will only come into play where the effect of any disciplinary proceedings will have a considerable influence or effect on an employee’s right to practise their profession. While this decision echoes previous decisions on one level (and is arguably unsurprising), the decision of the Supreme Court in another case is eagerly awaited as it could have far-reaching implications for the way in which future disciplinary hearings take place.

As in previous cases on this topic, this case involved a doctor, Mr Puri, seeking to rely on European law to overturn the effect of a disciplinary hearing which he argued would deprive him of the right to practise his profession. The conduct of Mr Puri, a consultant urologist specialising in oncology, was investigated following complaints regarding his abusive and threatening behaviour. A subsequent disciplinary hearing resulted in his dismissal. The General Medical Council (GMC) did not impose any sanctions on him. He appealed the decision to dismiss him but, before that appeal could take place, sought judicial review in the High Court. Relying on recent case law, Mr Puri argued that art.6 of the European Convention on Human Rights (ECHR), which provides the right to a fair hearing, was engaged because the effect of the disciplinary proceedings was to deprive him of the right to practise his profession. He argued that art.6 meant that the disciplinary and proposed appeal panels should have been independent and impartial, rather than being (respectively) predominantly or wholly composed of trust members or employees. At the time of the hearing, Mr Puri was working privately in Leeds, but without opportunities to carry out the high-level cancer surgery in which he specialised.

The High Court stated that in ordinary disciplinary proceedings, where all that was at stake was the loss of a specific job, art. 6 would not be engaged. It is engaged if the effect of the proceedings could be to deprive an employee of the right to practise his or her profession (see Kulkarni v Milton Keynes Hospital NHS Foundation Trust). Referring to Hameed v Central Manchester University Hospitals NHS Foundation Trust, the High Court concluded that Kulkarni only envisaged art. 6 applying in exceptional circumstances. As regards Mr Puri, the High Court acknowledged that it was difficult for him to find, within the NHS or elsewhere, a post of the same seniority and speciality as the one he had held with the trust before his dismissal. However, it noted that Mr Puri’s contract with the trust was as a consultant urologist, and was not restricted to oncology. In addition, the GMC had decided not to issue a warning against him. Therefore, said the High Court, it would not be impossible for Mr Puri to return to a position in the NHS, and found that this was not a case where the effect of the disciplinary proceedings was to deprive Mr Puri of the right to practise his profession, either within or outside the NHS. Even if he might struggle to work in the future in his sub-specialty, he would still be able to work as a urologist.

The other aspect of Mr Puri’s case was his complaint that although the disciplinary panel was constituted in accordance with the trust’s procedure, neither the panel, nor the proposed appeal panel, were art. 6-compliant, because they were neither independent nor impartial, consisting largely of employees of the trust. The High Court stated that, even if art.6 had been engaged with regard to Mr Puri’s disciplinary proceedings, it would not have held that compliance with art.6 required a disciplinary panel comprised of people external to the trust, or that the composition of the disciplinary panel was non-compliant. The High Court also held that neither the loss of the right to be employed in a particular job, nor the loss of professional reputation, are sufficient 'civil rights' which would engage the fair hearing requirement of art. 6.

The scope of art. 6 is very much a ‘live’ issue in employment law at the moment. Ironically, Mr Puri’s case was not helped by the fact that the decision of the GMC (not to impose any penalty on him) weakened his case in the High Court as it showed that he might be able to secure employment elsewhere. The reality is that the imminent decision of the Supreme Court in R (G) v Governors of X School will be more important than any Court of Appeal judgment in this case as it will hopefully give definitive guidance on how art. 6 should be interpreted in the context of workplace discipline.

Published with kind permission of Craig Gordon, HR Bullets.

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