Case
Kulkarni –v- Milton Keynes Hospital NHS Foundation Trust
Court of Appeal – 23 July 2009
Issues
(1) Right to be accompanied
(2) Disciplinary procedure
(3) European Convention on Human Rights
Facts
In July 2007 Dr Kunal Kulkarni was employed as a junior doctor by the Milton Keynes Hospital NHS Foundation Trust (“the Trust”).
He was suspended following a serious complaint by a female patient, that he had placed his stethoscope under a patient’s underwear without her permission. He had been previously acquitted of sexual assault at his previous NHS employer.
He sought the assistance of the Medical Protection Society (“MPS”). They assigned him a non-legally qualified representative to deal with his case.
In November 2007 the Trust indicated that disciplinary proceedings would be initiated. Dr Kulkarni was advised that he had the right to be represented by someone “not acting in a legal capacity”.
In view of his previous experience Dr Kulkarni was nervous as to his position so this was challenged by the MPS who argued that in this case the Trust had a discretion to allow legal representation. In their view, the seriousness of the case and complexities meant that they should allow Dr Kulkarni to be represented.
The Trust disagreed. It felt that there were no exceptional circumstances justifying a departure from its disciplinary procedure based on the Department of Health’s document “Maintaining High Professional Standards in the Modern NHS” (“MHPS”). Most Trusts have excluded the right to legal representation at hearings in light of this document.
Dr Kulkarni applied for a declaration that the Trust was acting unlawfully and in breach of his contract of employment, pending a full hearing to determine his right to legal representation.
At the High Court Dr Kulkarni was unsuccessful. In the absence of any right to legal representation in his contract or in the disciplinary procedure, he was not entitled to legal representation. Alternatively, if there was a right to legal representation there were no exceptional circumstances in this case to justify it.
It also considered whether Article 6 (the right to a fair trial) had been breached. It did not agree that Article 6 had been breached as the doctor could bring a claim at the Employment Tribunal or be heard by the General Medical Council.
Dr Kulkarni appealed to the Court of Appeal.
Decision
The Court of Appeal held that Dr Kulkarni was entitled to legal representation at the disciplinary hearing. It made an obiter comment that whilst Article 6 rights would not usually be engaged, Article 6 could be engaged where the allegations against a doctor were of such gravity that if proved he or she would be in effect prevented from practising in their profession.
Permission to appeal has been granted, so unfortunately the position remains unclear.
Comments
Doctors and dentists originally had the right to legal representation under their pre-2005 conditions of employment and this case returns us to that position. This is an important judgment for both the medical profession and those outside the medical profession who could argue that they are the only employer in a certain field (e.g. employers regulated by the Financial Services Authority).
Rachel Billen – Associate Solicitor, Employment Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email:
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This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.
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