Hospital doctors now have the right to legal representation at disciplinary hearings with their employers.
The Court of Appeal has decided that doctors must be allowed to be represented by a solicitor or barrister instructed by a medical defence organisation in any formal internal procedures, such as for misconduct, capability or health.
The decision was made during the case of Dr Kulkarni v Milton Keynes Hospital NHS Foundation Trust, and applies to all NHS organisations.
The case involved the Court of Appeal considering the application and wording of Maintaining High Professional Standards in the Modern NHS.
The court concluded that all formal trust procedures involving doctors are subject to the rules outlined in that document.
Dr Priya Singh, medical director at MPS, welcomed the decision. “This is a landmark ruling, confirming that current NHS trust disciplinary procedures do confer a contractual right for doctors to be legally represented by their medical defence organisation,” she said.
“Clearly, this reinforces the importance for all NHS doctors to ensure that they have membership of a defence organisation which is necessary to secure the contractual rights referred to in today’s judgment.”
The court went on to make further observations which are not legally binding but if subsequently followed mean trusts will have to give all requests for legal representation careful consideration.
The court decided that the principles of the human right to a fair trial applied to internal proceedings because “the National Health Service is, to all intents and purposes, a single employer for the whole country” and because of the implications for their career if a doctor were to be dismissed. The court rejected the argument that the right did not apply to doctors because the GMC would decide whether the doctor was fit to practise.
Mace & Jones solicitors explained that if this was followed, doctors would be entitled to instruct any solicitor or barrister (not just a friend or one instructed by their defence organisation). More importantly, the same principle would also apply to nurses and other health professionals.
Tags: Disciplinaries
