The Court of Appeal has ruled that doctors and dentists employed by NHS bodies in England are entitled to legal representation at disciplinary hearings. The court says the right also extends to representation in capability and ill-health proceedings.

Until 2005, disciplinary proceedings for NHS medical practitioners in England were covered by Department of Health Circular HC(90)9. That circular provided that doctors were entitled to be represented by a lawyer at disciplinary hearings.

However, in 2005 HC(90)9 was withdrawn for doctors in England (though not Wales). In its place employers were to adopt their own arrangements governing disciplinary proceedings. However, in the case of strategic health authorities, special health authorities, NHS trusts and primary care trusts those procedures had to be consistent with the DH Policy Document Maintaining High Professional Standards in the Modern NHS (MHPS). MHPS was also issued to foundation trusts as advice.

MHPS differs from HC(90)9 in the arrangements for representation at disciplinary hearings. Paragraph 22 of the section on capability (part IV) sets the position out in detail. The arrangements in relation to conduct hearing are not so clearly stated and the Court of Appeal decided that the capability wording should be applied to conduct cases too. Paragraph 22 is as follows:

“The practitioner may be represented in the process by a friend, partner or spouse, colleague or a representative who may be from or retained by a trade union or defence organisation. Such a representative may be legally qualified but they will not, however, be representing the practitioner formally in a legal capacity. The representative will be entitled to present a case on behalf of the practitioner, address the panel and question the management case and any witness evidence.”

Court of Appeal ruling

The Court of Appeal has ruled that MHPS permits a practitioner to be represented by a legally qualified person who is employed, retained or instructed by a trade union or defence organisation such as the MPS, MDU or BMA. In, addition if the doctor happens to have a spouse, partner, colleague or friend who is legally qualified and who is prepared to represent him or her, that is also allowed.

This means that where a practitioner’s terms and conditions provide for a disciplinary procedure that is consistent with MHPS, he or she will be entitled to legal representation at disciplinary hearings.

The Court of Appeal made it clear that, once a lawyer is admitted as a representative, he or she is entitled to use all his or her professional skills in the practitioner’s service. The scope of the representation is defined in paragraph 22 of MHPS; it includes presenting the case, calling witnesses and making submissions. The expression ‘not representing the practitioner formally in a legal capacity’ used in MHPS is, according to the Court of Appeal, meaningless and should be ignored.

Although the case before the Court of Appeal concerned allegations of misconduct, the court said that the right to legal representation would also apply to capability hearings and ill-health proceedings.

What if a practitioner cannot obtain legal representation through a defence organisation or trade union and doesn’t have a legally qualified spouse, partner or friend who is prepared to represent him or her?

MHPS does not itself permit a doctor to bring a legally qualified person whom he or she has instructed or retained independently. Nevertheless, the Court of Appeal said that it would be a breach of article 6 of the European Convention on Human Rights (the right to a fair trial) for an NHS employer to deny legal representation where a doctor is facing charges which are so serious that, in the event they are found proved, he or she will be effectively barred from employment in the NHS.

In practical terms it seems, therefore, that if dismissal is a risk the practitioner should be allowed a lawyer.

Because the right to a lawyer in potential dismissal cases stems from human rights law rather than MHPS, it will apply even if the employer is a foundation trust that has not adopted MHPS.

This part of the court’s judgment addressing human rights is not legally binding because it was not a necessary part of its reasoning to decide the appeal. This means that there is scope for court to take a different approach in future cases, but this is unlikely to happen.

The court’s reasoning is consistent with another recent case (R (on the application of G) v The Governors of X School, 18 March 2009) in which the High Court said a teacher should be allowed legal representation at a disciplinary hearing that could result in his dismissal.

In summary, legal representation should be allowed in cases involving practitioners where dismissal is a possibility. If MHPS has been adopted then the practitioner is also entitled to representation by a lawyer in less serious cases. Technically, in the latter type of case MHPS only covers lawyers employed or instructed by a defence society or trade union or by a lawyer who happens to be a spouse, partner, colleague or friend.

However, there will rarely be anything to be gained from challenging a practitioner’s choice of legal representative, unless the employer wants to become embroiled in a debate as to how fond a practitioner must be of his or her lawyer before they will qualify as a ‘friend’.

As well as clarifying the circumstances in which representation is allowed, this judgment confirms that if a lawyer is allowed in one cannot then expect them not to behave as a lawyer. It has always been Eversheds’ view that the statement in MHPS that a legally qualified representative will not be ‘representing the practitioner formally in a legal capacity’ is nonsensical, and the Court of Appeal’s judgment at least disposes of any doubt there may have been on the matter.

This decision will be greeted with dismay by those who thought that the DH had, through MHPS, succeeded in removing a right to legal representation which some felt had led to proceedings becoming unnecessarily complicated and drawn out.

It will be interesting to see how the DH responds and whether it will revise MHPS to limit the right of legal representation to those cases that could result in an individual being deprived of the right to practise his or her profession. Until then, however, the right to legal representation remains and trusts should revise their practices accordingly.