Doctors not entitled to be judged by independent panel

26 April 2011 by Martin Downs

R (on the application of Rajiv Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 970 (Admin) Judgment of Mr Justice Blair given on 15 April 2011 – Read judgment

This claim for judicial review is the latest skirmish in The Wars of the HC [90] 9 Succession between doctors and NHS trusts about what procedural safeguards they are entitled to if investigated, suspended or dismissed for misconduct since the introduction of Maintaining High Professional Standards in the Modern NHS (MPHS) in 2005.

It is also a blow for those who believe that professionals facing serious allegations that may have adverse consequences for their ability to practise in their chosen field should be entitled to be judged by a panel independent of their employer.

This case was heard two weeks before, and Judgment handed down four days after the oral hearing at the Supreme Court in the appeal of R (G) v Governors of X School [2010] EWCA Civ (see UK Supreme Court Blog’s case preview). Judgment is eagerly awaited in that case which it is hoped will give definitive guidance on how Article 6 should be interpreted in the context of workplace discipline.

In the meantime a succession of first instance Judgments such as that in Puri provide what guidance they can about what employers should do and what employees should expect when dealing with serious allegations at work.

The Claimant worked as a Consultant Urologist with the Defendant Trust for about ten years. Latterly he had developed a particular sub specialty as a urologist in the field of oncology. He faced allegations of misconduct arising from three incidents of intemperate behaviour in or around theatre in February 2009. These were investigated and, on balance, it was concluded that his attitude had “contributed to the formation of a dysfunctional service and unacceptable stress and anxiety to hospital staff over a protracted period of time.”

His case was heard by a panel consisting of the Chairman of the Trust (who had replaced the Chief Executive after protest by the BMA representing the Doctor), a Consultant Urologist from the Royal Liverpool Hospital and the Human Resources Director of the Trust. The Claimant largely accepted the charges and the argument was about what was the proportionate penalty. The panel decided to dismiss the Doctor on notice and referred him to the GMC. .

The Claimant appealed and was granted a legal representative in the light of the Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789.

He was informed that the appeal panel would consist of a Non Executive Director of the Trust, the Clinical Director of Acute Medical Specialties at the Trust and a staff side representative. The appeal panel was to be advised by the Human Resources of a neighbouring Trust.

Dr Puri complained that although the panel was constituted in accordance with the Trust’s procedure, neither the disciplinary panel, nor the proposed appeal panel, were Article 6 compliant, because they were neither independent nor impartial, consisting largely of employees of the Defendant Trust

There were concurrent GMC and Employment Tribunal proceedings. By the time the Judicial Review case came on for hearing the GMC’s Investigation Committee had decided to take no further action. The ET proceedings had been stayed.

Blair J stated that in ordinary disciplinary proceedings, where all that was at stake was the loss of a specific job, Article 6 would not be engaged. It is engaged if the effect of the proceedings could be to deprive an employee of the right to practise his or her profession (Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789). The question is whether the outcome will have a substantial influence or effect on the determination of that right R (G) v Governors of X School[2010] EWCA Civ 1.

Drawing support from the Judgment of Swift J in Hameed v Central Manchester University Hospitals NHS Foundation Trust he concluded that Kulkarni only envisaged Article 6 applying in exceptional circumstances.

On that basis, Mr Justice Blair found that Article 6 did not apply in the circumstances of this case as the charges did not appear particularly grave and were not quasi-criminal in nature. Additionally, although the original disciplinary panel could not have known how the matter would turn out, the Judge was influenced by the fact that the GMC’s Investigation Committee had by that time decided that his actions did not meet the threshold for a warning, and directed that no further action be taken. Blair J decided that even if the Doctor might struggle to work in the future in his sub-specialty he would still be able to work as a urologist.

Additionally the Judge rejected an argument based on the effect on Dr Puri’s reputation relying on the  decision of the European Court of Human Rights in Werner v Poland, (Application no 26760/75 of 15 November 2001) on the basis that there were no substantive rights to which Article 6 could attach in the present case, because (1) there is no general right to reputation, and (2) the subject matter of dispute before the disciplinary panel involved no determination of the claimant’s right to a good reputation.

He went on to find that even if Article 6 had been engaged he would not have held compliance required a disciplinary panel comprised of persons external to the Trust, nor that the panel in the present case was non-compliant by reason of its composition.

Two minor finding will be of interest to those who represent parties in this field:

(1)   he criticized communication between the “external speciality advisor” and the Case Investigator on the basis it that it was not transparent and said that it would be capable, in certain circumstances, of amounting to a breach of natural justice, with consequences for the integrity of the overall outcome;

(2)   by contrast he stated that there was no duty upon an employer to offer “reasons” for the selection of a proposed panel member, where such selection conforms to the requirements of a negotiated disciplinary procedure.

Dr Puri has been given permission to appeal to the Court of Appeal.

Comment

At the heart of this matter is a dispute about the protections that should be offered to Doctors when accused of professional misconduct. It also has wider implications for other employers and workers – although Doctors have the particular problem about the sheer length of their training and the power held by the NHS as a near monopoly employer of Doctors in the UK.

Misconduct in the NHS used to be dealt with by Department of Health Circular HC (90) 9 of 1990 which provided elaborate safeguards including legal representation for the parties and an independent panel.   There were however concerns that this led to unacceptably long suspensions of Doctors and that the procedures were overly legalistic and cumbersome.

It was replaced in 2005 by a collective agreement entitled, “Maintaining High Professional Standards in the Modern NHS” (MPHS). This provided a framework by which issues relating to a practitioner’s conduct, capability or professional competence were to be resolved through the employing authority’s disciplinary or capability procedures provided they conformed to the MHPS outline. A substantial role was also given to NCAS – particularly with an eye to avoiding unnecessary suspensions and dismissals when re-training would be a better solution.

However, doubts set in afterwards about safeguards that Doctors had lost. The result has been a litigation strategy to recover former protections. Having made progress with securing legal representation for Doctors in many cases using R (G) v Governors of X School [2010] EWCA Civ 1 the relevant organizations turned their attention to getting independent Tribunals to hear disciplinary charges against Doctors in the workplace.

This has received a knock back in this case. .

The problem is that cases like this and Lauffer v Barking, Havering and Redbridge University Hospitals NHS Trust[2009] EWHC 2360 show how difficult it is to show that Article 6 is engaged.

Additionally, this may not have turned out to be a good test case. Many employees would envy having a staff nominated member on an appeal panel and that it be advised by an HR Officer who doesn’t work for their employer. in addition, the irony for Dr Puri was that his success at the GMC weakened his judicial review as it showed that he might be able to secure employment elsewhere.

The reality is though that the imminent Judgment of the Supreme Court in R (G) v Governors of X School will be more important than any Court of Appeal Judgment in this case.

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