Puri, R (on the application of) v Bradford Teaching Hospitals NHS Foundation Trust

Article 6 ECHR is not engaged in ordinary employment disciplinary proceedings where the only consequence is loss of a particular job. It may apply where the proceedings could effectively deprive the person of the right to practise a profession, or substantially influence a later determination of that right. The question is fact-sensitive.

A doctor’s inability to return to a particular speciality or employer does not necessarily amount to deprivation of the right to practise. The composition of an internal disciplinary panel is not automatically incompatible with Article 6 merely because some members are employees or officers of the employer. Fairness and apparent bias must be assessed in context. A negotiated disciplinary framework and judicial review may provide relevant safeguards.

Mr Puri, a consultant urologist employed by the defendant NHS foundation trust, was dismissed for misconduct following internal disciplinary proceedings. He challenged the dismissal decision and the proposed composition of the appeal panel by judicial review.

He argued that the proceedings determined his civil rights under Article 6 ECHR, including his right to practise medicine, his employment and his professional reputation. He also contended that the disciplinary and appeal panels were not independent or impartial, that any waiver was ineffective, and that the Trust had failed to give adequate reasons for the panel composition.

The central issues were whether Article 6 applied, whether the panels complied with its requirements, whether any Article 6 rights had been waived, and whether reasons were required.

1. Article 6 engagement. The right generally to practise a profession is a civil right for Article 6 purposes. However, ordinary disciplinary proceedings concerning only the loss of a specific job do not engage Article 6. The proceedings may engage Article 6 where their effect could deprive the employee of the right to practise the profession, or where their outcome would have a substantial influence or effect on the determination of that right. The inquiry is fact-sensitive.
2. On the evidence, Mr Puri remained able to practise as a doctor and consultant urologist, although it was difficult for him to obtain work of the same seniority and speciality within the NHS. The suggested loss of the opportunity to perform laparoscopic prostatectomy was not a partial deprivation of the right to practise. The case was materially different from Kulkarni v Milton Keynes Hospital NHS Trust, which concerned allegations amounting to a criminal offence, a trainee doctor whose training could not be completed privately, and a likely alert letter. Article 6 was therefore not engaged.
3. The professional-reputation argument did not produce a different result. The court accepted that Article 6 provides procedural guarantees for the determination of civil rights, rather than a free-standing cause of action concerning reputation.
4. Panel composition. Had Article 6 applied, it would not have required a disciplinary panel consisting entirely of persons external to the Trust. The relevant question was whether the process was fair and whether there was apparent bias, assessed by the fair-minded and informed observer. Employment or connection with a party does not automatically disqualify a decision-maker. The external panel member, external speciality adviser, negotiated MHPS framework, removal of the Chief Executive when objection was made, and availability of judicial review were relevant safeguards.
5. Waiver and reasons. Had Article 6 been engaged and infringed, the claimant would not have waived his rights. Waiver requires voluntary action, compatibility with the public interest and an unequivocal decision, and must be treated cautiously. There was no general duty on the employer to give reasons for selecting panel members where the composition complied with the negotiated procedure.
6. The claim was dismissed. The court noted that undisclosed communications between a case investigator and an external adviser could, in an appropriate case, threaten natural justice, but that issue was not advanced on the facts.

Permission to apply for judicial review was granted by Underhill J on 20 September 2010. The Administrative Court dismissed the claim.