Kulkarni v Milton Keynes Hospital NHS Foundation Trust and another [2009] EWCA Civ 789 CA

human rights | disciplinary hearing | request for legal representation

The Court of Appeal has held that a doctor should be allowed to be accompanied by a lawyer at a disciplinary hearing in circumstances where he or she is facing charges that are of such gravity that, in the event they are proven, he or she will effectively be barred from employment in the NHS.

Dr Kulkarni, who worked for Milton Keynes Hospital NHS Foundation Trust, was suspended after being accused of improperly touching a patient. He sought to have legal representation at a subsequent disciplinary hearing. The Trust considered his request, but turned it down on the basis that there were no exceptional circumstances that would justify it from deviating from its disciplinary procedure. Its procedure did not permit legal representation at disciplinary hearings.

Dr Kulkarni sought a declaration from the High Court that the Trust was in breach of art.6 of the European Convention on Human Rights, which gives individuals the right to a fair and public hearing. The High Court found that art.6 was not engaged in the context of disciplinary proceedings. Even if art.6 was applicable and the disciplinary proceedings themselves were not compliant with it, the proceedings as a whole would be compliant because they could include subsequent proceedings before the General Medical Council (GMC) and the employment tribunal, both of which were art.6 compliant.

The Court of Appeal overturned the High Court ruling. The GMC does not conduct an appeal from the disciplinary proceedings by the employer. It decides whether or not the doctor's fitness to practise is impaired. It is true that the GMC proceedings would include consideration of whether or not Dr Kulkarni had indeed touched his patient improperly as alleged in the disciplinary proceedings and, if the GMC found that he had not, he would be able to obtain employment again within the NHS. However, there is no certainty that GMC proceedings would take place and the doctor cannot instigate them. In addition, employment tribunal proceedings are of a different nature from disciplinary proceedings and the issue that the employment tribunal has to consider is not whether or not the employee is guilty of the misconduct. The issue for the employment tribunal is whether or not, having conducted a reasonably thorough investigation, the employer believed that the employee was guilty of the misconduct alleged and dismissed him for that reason and whether or not the employer acted reasonably in treating that misconduct as a sufficient reason to dismiss him.

The Court of Appeal also said that art.6 is engaged where an NHS doctor faces charges that are of such gravity that, in the event they are proven, he or she will effectively be barred from employment in the NHS. Article 6 implies a right to legal representation in disciplinary proceedings such as this because the doctor faces what is in effect a criminal charge. The issues are virtually the same and, although the consequences of a finding of guilt cannot be the deprivation of liberty, they can be very serious.

Case transcript of Kulkarni v Milton Keynes Hospital NHS Foundation Trust and another (on the BAILII website)

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