Right To Legal Representation For Internal Disciplinary Proceedings

You may recall the recent case of R (On the

application of "G") v The Governors of "X"

School and "Y" Council, which was featured

in our

e-update of 26 March. In that case, the High Court ruled

that a school music assistant, who faced disciplinary proceedings

concerning an allegation of kissing a 15 year old pupil, was

entitled to be legally represented during those proceedings (as

opposed to simply having his statutory right to be accompanied by a

colleague or trade union representative). This was because of

the seriousness of the allegation and the severity of the

consequences of a referral under the Education Act 2002, which the

school was obliged to make and which could have resulted in him

being prohibited from working with children in educational

establishments.

Interestingly, no mention was made in that case of the High

Court's decision in the earlier case of Kulkarni v

Milton Keynes Hospital NHS Trust on similar

facts. Dr Kulkarni was a doctor who, shortly after starting

work for Milton Keynes Hospital NHS Trust, was accused of

improperly touching a patient. He was not permitted to have legal

representation at a subsequent disciplinary hearing and he claimed

that this infringed his human right to a fair trial, in terms of

Article 6 of the European Convention on Human Rights. The

High Court rejected his claim, but that decision has now been

overturned in the Court of Appeal.

Lady Justice Smith ruled that, in effect, the relevant

disciplinary procedure provided for a contractual right to be

legally represented by a lawyer instructed by the Medical

Protection Society. Whilst the procedure stated that an

employee's representative could be legally qualified but would

not "be representing the practitioner formally in a legal

capacity", Lady Justice Smith ruled that the words quoted

above were meaningless and should be "blue-pencilled"

(i.e. deleted). There was, therefore, no requirement to rule

on the Article 6 issue.

The decision means that an NHS Trust doctor facing serious

disciplinary allegations has the contractual right to a legal

representative instructed by his medical defence organisation.

Of wider interest, however, are the potential implications for

all public sector employees, owing to the (non-binding but

persuasive) observations which Lady Justice Smith made in relation

to an individual's Article 6 right to a fair trial.

Lady Justice Smith indicated that had she been obliged to rule

on the claimant's Article 6 argument...