Kulkarni v Milton Keynes Hospital NHS Foundation Trust & Anor

An NHS doctor or dentist whose contractual disciplinary procedure must conform to Maintaining High Professional Standards in the Modern NHS may be represented at a formal hearing by a legally qualified person employed or instructed by a defence organisation. In this context, a lawyer who is “retained” includes one who is “instructed”. The contract does not confer an equivalent right to representation by an independently instructed lawyer.

Once admitted as the representative, the lawyer may use the full range of professional skills permitted by the procedure. Language stating that the lawyer does not act formally in a legal capacity cannot restrict those functions.

A foundation doctor faced disciplinary proceedings arising from an allegation of sexual misconduct. His employer refused to permit representation by a lawyer instructed by the Medical Protection Society, relying on its disciplinary policy and Maintaining High Professional Standards in the Modern NHS.

Penry-Davey J discharged an interim injunction and refused a declaration that the doctor was entitled to legal representation. He held that the express contractual procedure excluded such representation and that neither an implied term, natural justice nor article 6 of the European Convention on Human Rights required a different result.

The principal issue on appeal was the proper construction of the contractual disciplinary procedure, particularly paragraph 22 of Part IV of the national framework. A subsidiary issue concerned the proposed use of evidence relating to an earlier allegation.

1. Appeal allowed unanimously. The contractual right of representation for doctors and dentists facing formal misconduct, capability or health proceedings was governed by paragraph 22 of Part IV of Maintaining High Professional Standards in the Modern NHS. The employer’s disciplinary policy had to be consistent with that framework. Paragraph 22 permitted representation by a legally qualified person employed or retained by a defence organisation. “Retained” included “instructed”. The appellant was therefore contractually entitled to representation by a lawyer instructed or employed by the Medical Protection Society.

2. The contractual right did not extend to a lawyer retained independently by the practitioner, such as a family solicitor or a barrister instructed by that solicitor. It did, however, encompass a legally qualified spouse, partner, colleague or friend willing to act.

3. The expression stating that a representative would not act formally in a legal capacity was devoid of practical meaning where the procedure expressly permitted a legally qualified representative to present the case, address the panel and question the employer’s case and witnesses. Once admitted, the lawyer could use all professional skills in the practitioner’s service. The procedure could not be construed as preventing legitimate legal or evidential submissions.

4. The court declined to restrain the employer from placing material concerning an earlier allegation before the disciplinary panel. The High Court should not undertake the detailed management of an internal disciplinary hearing.

5. Obiter: article 6 of the European Convention on Human Rights would be engaged where charges were so grave that an adverse finding would effectively bar an NHS doctor from employment in the NHS. In such circumstances, article 6 would imply a right to legal representation because the charge was effectively criminal in character and carried grave professional consequences. Le Compte v Belgium [1981] 4 EHRR applied.

6. Obiter: neither possible proceedings before the General Medical Council nor an unfair-dismissal claim before an employment tribunal supplied subsequent judicial control of full jurisdiction. The General Medical Council did not hear an appeal from the employer and might never become involved. An employment tribunal ordinarily examined the reasonableness of the employer’s investigation and belief rather than deciding whether the alleged misconduct occurred. R (Hammond) v Secretary of State for the Home Department [2005] UKHL 69 and British Home Stores v Burchell [1978] ICR 303 applied.

7. The declaration was granted. No injunction was required because the employer was expected to comply with it.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The court declared that the appellant was contractually entitled to representation by a lawyer instructed or employed by the Medical Protection Society: [2009] EWCA Civ 789.

2. High Court, Queen’s Bench Division: Penry-Davey J discharged the interim injunction and dismissed the claim for declaratory relief. No neutral citation is stated in the judgment.

3. High Court, Queen’s Bench Division: Dobbs J had earlier granted a without-notice interim injunction restraining the disciplinary hearing unless legal representation was permitted. No neutral citation is stated in the judgment.