Kulkarni v Milton Keynes Hospital NHS Trust

An express disciplinary procedure negotiated for NHS employment may exclude legal representation at an internal disciplinary hearing. In such circumstances, the court will not ordinarily imply a conflicting term through mutual trust and confidence.

A refusal to permit legal representation must be shown to be irrational or unreasonable before contractual relief is available. Article 6 does not necessarily require legal representation at the internal stage where later proceedings before a convention-compliant tribunal or court provide the necessary safeguards. The High Court should not use injunctive relief to manage the evidence in advance of internal disciplinary proceedings.

The claimant, a junior doctor employed by the defendant NHS Trust, faced an internal disciplinary hearing concerning an allegation of inappropriate examination of a patient. The Trust’s procedure incorporated the Department of Health framework Maintaining High Professional Standards in the Modern NHS, under which a practitioner could be accompanied but not represented by a lawyer acting in a legal capacity.

The claimant sought continuation of an interim injunction restraining the disciplinary hearing unless he could have legal representation. He also sought to prevent the Trust from relying on an earlier allegation on which he had been acquitted, and declaratory relief concerning the applicable procedure. The Trust sought discharge of the injunction, relying on delay, non-disclosure and the absence of a serious issue to be tried.

1. Interim relief. The interim injunction granted on 12 February 2008 was discharged. The without-notice application had been made at the last minute despite extensive prior correspondence, and material information, including the Trust’s disciplinary policy and the substance of its defence, had not been placed before the judge. The claimant’s delay and the failure of full and frank disclosure provided powerful reasons for discharge.
2. Legal representation. The contractual procedure expressly provided for accompaniment by a specified companion who was not to act in a legal capacity. Having regard to the negotiated NHS framework, the statutory right to be accompanied, and the background to the replacement of the former procedures, there was no breach of natural justice and no room to imply a term permitting legal representation through mutual trust and confidence.
3. Alternatively, if the Trust retained a contractual discretion to permit legal representation, the claimant had not shown that its refusal was irrational, unreasonable or unfair. The seriousness of the allegation, the possible professional consequences, the availability of an experienced representative and the nature of the issues did not establish the necessary overwhelming case.
4. Article 6. Even assuming that Article 6 was engaged at the internal disciplinary stage, it was not violated. The GMC and any employment tribunal would provide the relevant convention safeguards, consistent with the approach in R (on the application of Alconbury Developments Ltd) v SSETR [2001] UKHL 23. The application of Article 6 at the internal stage was in any event doubtful, as indicated by Albert Le Compte v Belgium (1983) EHRR 533.
5. The High Court was not an appropriate vehicle for managing the inclusion or exclusion of evidence in advance of an internal disciplinary hearing. The earlier complaint, trial and acquittal were not clearly irrelevant or inadmissible. The application for declaratory relief was refused.