Kulkarni v Milton Keynes Hospital NHS Foundation Trust

NHS Trusts have to ensure that their disciplinary procedures are consistent with a national framework drawn up by the Department of Health (DofH). In Kulkarni v Milton Keynes Hospital NHS Foundation Trust, the Court of Appeal has ruled that this gives doctors the contractual right to legal representation in disciplinary proceedings to determine serious disciplinary charges against them as long as their lawyer has been instructed by a defence organisation such as the Medical Protection Society (MPS).

Basic facts

Soon after starting work for the Trust, a patient complained that Dr Kulkarni had touched her inappropriately. He was suspended and, following an investigation, was told that he would have to attend a disciplinary hearing.

His representative from the MPS asked the Trust to allow legal representation because of the complexities and potential seriousness of the case. The Trust refused, saying that its disciplinary procedures had to be consistent with a DofH document entitled Maintaining High Professional Standards in the Modern NHS (MHPS). This stated that a companion who was legally qualified could attend as long as they were not “acting in a legal capacity”.

Dr Kulkarni challenged this decision arguing that the refusal to allow him legal representation was a breach of the implied term of trust and confidence, and a denial of his rights under article 6 (right to a fair trial) of the European Convention on Human Rights (ECHR).

High Court decision

The judge concluded that because the Trust’s disciplinary policy was incorporated into Dr Kulkarni’s contract, it could not override an express term and imply a term providing him with what was, at best, a discretionary right.

As to the argument that Dr Kulkarni had been denied his rights under Article 6, the judge said that even if the disciplinary proceedings were not compliant with the ECHR, this did not matter because he could submit appeals to the General Medical Council (GMC) and the employment tribunal, both of which (as public bodies) were compliant with the ECHR.

Court of Appeal decision

The Court of Appeal, however, disagreed. It queried the meaning of the phrase “not acting in a legal capacity” in the MHPS document and found it to be meaningless. Instead, it decided that Dr Kulkarni was contractually entitled to be represented by a lawyer employed or instructed by a defence organisation such as the MPS.

With regard to the claim under Article 6, the Court of Appeal said, in remarks that were not binding, that since the NHS is a monopoly employer (especially for trainee doctors) and a statutory “alert letter” would prevent a dismissed doctor being re-employed elsewhere in the NHS, NHS doctors have the right to legal representation at internal disciplinary hearings if they face “charges which are of such gravity that, in the event they are found proved, [they] will be effectively barred from employment in the NHS”.

It rejected the argument that, even if the internal disciplinary proceedings brought by the Trust were not compliant with the ECHR, that did not matter because he had recourse to other bodies such as the GMC and the tribunal. It said that the GMC was not a judicial body and the tribunal proceedings were of a different nature from internal disciplinary proceedings.

The Court of Appeal therefore allowed the appeal on the ground that Dr Kulkarni was contractually entitled to be represented at his disciplinary hearing by a lawyer instructed by the MPS.

Comment

This is a significant decision in that it gives all employed NHS doctors and dentists in England facing serious disciplinary charges on grounds of misconduct or capability the contractual right to be legally represented by someone instructed or retained by their medical defence organisation.

However, other public sector employees facing serious charges are not in the same position. They would have to show that they would be barred from employment in the public sector and that they could not continue their profession in the private sector. This is likely to apply to a narrow range of workers.