Article 6 and the right to practise a profession

R (on the application of Mr Rajiv Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 970 (Admin)

The Court of Appeal decision of Kulkarni[1] represented a significant development in the law relating to NHS healthcare professionals facing disciplinary proceedings. The result of this case is that any NHS employed doctor or dentist in England facing disciplinary charges on misconduct or capability grounds has the contractual right to a legal representative. In her leading judgment, Smith LJ strongly suggested that the right to a fair trial set out in Article 6 ECHR is engaged where an NHS doctor faces charges which are of such gravity that, in the event they are found proved, he will be effectively barred from employment in the NHS.

If Article 6 does apply in these situations, then further elements of a right to a fair trial may be required, such as the right to an independent panel to hear the case – such a right is not presently incorporated in Maintaining High Professional Standards (“MHPS”), the NHS’s disciplinary procedure for doctors and dentists.

The recent judicial review case of Puri is of wide significance in the field of professional discipline, firstly because it clarifies the circumstances in which Article 6 applies, and secondly because it is the first domestic case following a European Court of Human Rights decision[2] in which a professional has sought to argue that his dismissal is in breach of Article 6 because it was determinative of his professional reputation.

We acted for Mr Puri, a consultant urologist, who faced allegations of aggressive and rude behaviour in the operating theatre. He was the subject of a disciplinary investigation under the procedures contained in MHPS. The disciplinary panel, composed of one Trust employee, one nonexecutive director of the Trust and one external member, decided that Mr Puri should be dismissed. Mr Puri sought to make an appeal under MHPS. The Trust’s procedure stated the internal appeal panel comprised three members from the Trust. Mr Puri sought to challenge the composition of both the original and the appeal panels by arguing that Article 6 was engaged, therefore entitling him to an independent and impartial tribunal, with a majority of non-Trust employees.

Giles Powell and Nicola Newbegin of Old Square chambers argued on Mr Puri’s behalf that the dismissal was a breach of Article 6 because it was determinative of his right to practise his profession and it was determinative of his professional reputation. Mr Puri had a highly specialised set of skills which, it was argued, could only be put to use in the NHS.

Although Mr Justice Blair accepted that Article 6 might be engaged in respect of doctors’ disciplinary matters (but only in exceptional cases), he did not accept that Article 6 was engaged in this particular case, because he found that Mr Puri could still practise as a consultant urologist (albeit not in his specialist area and most likely outside of the NHS).

Blair J ruled that the composition of the original disciplinary panel under MHPS was compliant with Article 6 in misconduct matters and considered that there could still be an independent and impartial tribunal, even where the majority of employees are employed by the Trust. Continued… He did observe that there does not appear to be a good reason why the appeal panel should have an independent member on it, which is not currently required by MHPS.

Blair J did not accept the Trust’s arguments that Mr Puri had waived his right to an independent and impartial tribunal by his failure to object to the composition of the disciplinary tribunal prior to their hearing the case. Permission to appeal has been granted to the Trust in respect of the waived right to an independent and impartial tribunal, and Mr Puri has been granted permission to appeal on all grounds. This is one a number of recent cases that are seeking to test the law in respect of dismissals from the NHS, which may be determinative of a practitioner’s civil right to practise his profession.

© RadcliffesLeBrasseur
April 2011


Footnotes

[1] Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789
[2] Werner v Poland [2003] 36 EHRR 28


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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