Article 6 of the European Convention on Human Rights (ECHR) gives everyone the right to a fair and public hearing “in the determination of his civil rights and obligations”. The High Court decided, however, in Puri v Bradford Teaching Hospitals NHS Foundation Trust that it did not apply to internal disciplinary procedures if the employee had not been deprived of the right to practise their profession.
In March 2009, Mr Puri, a consultant urologist, received a letter from the Trust’s medical director informing him that he was to be investigated under their Disciplinary, Capability, Ill Health and Appeals Policy and Procedure for Doctors and Dentists.
The allegations included a number of complaints about his rude and aggressive behaviour towards staff both in theatre and elsewhere. Following an investigation, he was dismissed in October 2009 by a disciplinary panel made up of the Trust chair, a consultant urologist from the Royal Liverpool Hospital and the Trust’s human resources director.
At the same time the Trust’s medical director referred the matter to the General Medical Council (GMC) to consider whether Mr Puri was fit to practise. Although the GMC said his actions were inappropriate, it took no action against him.
In December, his solicitors wrote to the Trust saying that the decision to dismiss was unlawful, in that the disciplinary panel ought to have been independent in order to comply with article 6 of the ECHR.
It applied, they said, to the disciplinary and appeal hearings because they were a “determination of his civil rights and obligations”, affecting his reputation and his right to practise as a doctor.
High Court decision
The High Court decided, after a review of the authorities, that article 6 only applied in specific circumstances, which included someone who could be deprived of the right to practise their profession.
But this did not include Mr Puri because, although it was difficult for him to find work of the same seniority both inside and outside the NHS, his specialty did not restrict him to work in uro-oncology and he had managed to find work as a urologist in the private sector.
And nor had the GMC taken action against him, making it impossible for him to work. He had not, therefore, been deprived of the right to continue as a practising doctor.
It also rejected Mr Puri’s argument that his right to a reputation had also been affected by his dismissal, saying that there was no general right to reputation and the issue to be dealt with by the disciplinary panel “involved no determination of the claimant's right to a good reputation”.
It then went on to say that, even if article 6 had applied, it would have found that the disciplinary panel was sufficiently independent as there was no reason why “fairness requires outside membership”, external to the Trust. All that was required was for the decision making process to be fair and impartial.
The rejection of the loss of reputation argument is interesting as Dr Puri was highly specialist and was forced to return to more a generalized practice where he became de-skilled. Saying that the disciplinary panels were not determining reputation is difficult to reconcile with real world experience where although no disciplinary body adjudicates specifically on reputation, their decision will affect reputation every time.