Kulkarni v Milton Keynes Hospital NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith,Lord Justice Wilson,President of the Family Division |
| Judgment Date | 23 July 2009 |
| Neutral Citation | [2009] EWCA Civ 789 |
| Docket Number | Case No: A2/2008/2096 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 July 2009 |
[2009] EWCA Civ 789
The President of the Family Division
Lady Justice Smith and
Lord Justice Wilson
Case No: A2/2008/2096
TLQ/08/0228
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Queens Bench Division
Mr Justice Penry-davey
Mr John Hendy QC & Mr Jonathan Davies (instructed by Messrs RadcliffesLeBrasseur) for the Appellant
Mr Andrew Stafford QC and Mr Damian Brown (instructed by Messrs Hammonds) for the Respondent
Miss Sarah Lee (instructed by The Department for Work & Pensions, Litigation Division) for The Secretary of State for Health (Interested Party)
Hearing dates : 17/18 February 2009 &19 May 2009
Lady Justice Smith:
Introduction
This is an appeal against the order of Penry-Davey J made on 1 August 2008 when he refused to make the declaration sought by the claimant, Dr Kunal Kulkarni, that he be entitled to legal representation in disciplinary proceedings brought by his employer, the Milton Keynes Hospital NHS Trust (the Trust). Penry-Davey J also refused to extend an interim injunction granted by Dobbs J on 12 February 2008 restraining the Trust from pursuing the disciplinary proceedings until further order, unless it were to allow Dr Kulkarni legal representation.
Factual Background
On 31 July 2007, the claimant entered employment with the Trust as a Foundation Year One Doctor. He was provisionally registered on the Medical Register and the post to which he was appointed was part of the training necessary for him to achieve full registration. Prior to his appointment, a criminal records bureau check had revealed that, arising from a previous employment at the Great Western Hospital, Swindon, he had been prosecuted for an offence of sexual assault on a patient and had been acquitted after trial at Swindon Crown Court. On 24 August 2007, that is less than four weeks after his employment with the Trust commenced, a patient made a complaint that the claimant had placed a stethoscope under her knickers without her consent. The claimant was suspended pending investigation of the complaint. It was clear that, if the investigation so warranted, disciplinary proceedings would follow. The investigation included the collection of information about the earlier allegation from Swindon.
The claimant sought the advice of the Medical Protection Society (MPS), the defence organisation of which he was a member and his case was assigned to Dr Marika Davies. Dr Davies is a medical doctor but is not legally qualified. She has a qualification in medical ethics and she is an experienced MPS adviser. On behalf of the claimant, she entered into correspondence with the Trust about a number of matters including the disclosure of evidence and the disciplinary policies and procedures which would govern any disciplinary proceedings. It is not necessary to set out the detail of the issues discussed. What matters for the purposes of this appeal is that, on 23 November 2007 in the course of a conversation between Dr Davies and Ms Chanelle Wilkinson, the Trust's Director of Human Resources, Dr Davies asked whether Dr Kulkarni would be entitled to have legal representation at any disciplinary hearing. Ms Wilkinson replied that he would not. She asserted that the procedures did not allow for legal representation and whoever might accompany the claimant 'must not be acting in a legal capacity'.
On 26 November 2007, Dr Lanzon Miller, the Trust's Medical Director, wrote to the claimant informing him that, in the light of the investigation, which included consideration of information from Swindon, there would be disciplinary proceedings. The hearing would take place on 11 December. His letter confirmed that the claimant had the right to be accompanied by a representative 'not acting in a legal capacity'.
Dr Davies replied to Dr Miller raising a number of issues, the important one for present purposes being the question of legal representation. She suggested that the Trust had a discretion to allow legal representation in a case which justified it and submitted that the complexities and potential seriousness of this case were such that the discretion ought to be favourably exercised. It should be understood that Dr Davies was not asking the Trust to pay for Dr Kulkarni's representation; only that he should be permitted to be represented by a lawyer who would, it was intended, be instructed by the MPS. Dr Davies proposed an adjournment of the hearing from 11 December so that the issue of representation could be considered. That was agreed.
The Trust's position was that its procedures were based upon the Department of Health Policy Document 'Maintaining High Professional Standards in the Modern NHS' (MHPS). This policy document did not permit legal representation at disciplinary hearings. Notwithstanding that general position, Ms Wilkinson spoke to Dr Davies, at some time between 5 and 21 December 2007, and explained that the Trust had considered the request for legal representation. Its decision was that there were no exceptional circumstances which would justify the Trust in deviating from its disciplinary policy and procedure. Thus it appears that the Trust thought that its procedures did allow a discretion to permit legal representation but it was not prepared to exercise the discretion in Dr Kulkarni's favour. Ms Wilkinson said that the fact that Dr Kulkarni was represented by the MPS and Dr Davies had been taken into account. It appears that, at that time, the Trust believed that Dr Davies was both medically and legally qualified, which she was not. The Trust's reasoning included its belief that the claimant would be able to call upon a legally qualified representative without the need to instruct a lawyer to attend in 'a legal capacity'. Dr Miller confirmed that decision in writing on 21 December 2007.
There was also correspondence between the parties about the use which was to be made of the Swindon information. Dr Lanzon Miller indicated that the panel would consider this information as part of the case against the claimant. Dr Davies contended that this information should only be made available to the panel if and when it came to consider sanction after deciding (if it did) that the claimant was guilty of the current charge. That dispute remained unresolved. A hearing date was fixed for 13 February 2008 and the Trust informed Dr Davies that the panel members would receive the Swindon information as part of their bundles.
In the light of the refusal to allow representation, the MPS instructed its solicitors, RadcliffesLeBrasseur, who, on 4 February 2008, wrote raising an issue about the legality of the contractual disciplinary procedures on which the Trust was relying for its refusal of legal representation. They asked for documentary proof that MHPS had been incorporated into the claimant's terms and conditions of employment. The letter threatened legal proceedings in the absence of a satisfactory reply.
The application for interim relief
No reply was received to that letter and, on 12 February 2008, the claimant issued proceedings seeking a declaration that the Trust was acting unlawfully and in breach of contract in refusing to allow the claimant legal representation at his disciplinary hearing and by threatening to deploy inadmissible material (the Swindon information) at the hearing. The claimant also made a without notice application to Dobbs J seeking to restrain the Trust from proceeding until the issues had been determined by the Court.
At the without notice hearing, the claimant relied on a Department of Health Circular HC90(9) which expressly provided for the right of a doctor facing disciplinary proceedings to have legal representation. It was acknowledged that that circular had been withdrawn in 2005 and had been replaced by MHPS but it was contended that, because there was no evidence that MHPS had been incorporated into the Trust's disciplinary policy (which was part of the claimant's contract of employment), HC90(9) still had effect. The claimant did not exhibit a copy of the Trust's disciplinary policy, which had been provided to the MPS by the Trust. The claimant also argued that the implied term of trust and confidence in the contract of employment included a discretion to allow legal representation at disciplinary hearings in a suitable case. He contended that it should have been exercised in this case.
Dobbs J made an order restraining the Trust from proceeding with the disciplinary hearing unless he was to be allowed legal representation.
When served with the injunction, the Trust's response was to produce evidence that MHPS had been incorporated into its disciplinary policy at a Board Meeting in 2005. Further, the Trust contended that its disciplinary policy made that plain and, had that been shown to the Judge, she could not have accepted the argument that HC90(9) was still effective. The policy in MHPS was clear, it was said, and legal representation was not allowed. There was no room for discretion. Moreover, an implied term in the contract could not displace the clear effect of an express term.
RadcliffeLeBrasseur's explanation for their conduct was that they had not had a copy of the Trust's disciplinary policy at hand when they had prepared their evidence and they had not intended to mislead the judge.
The judgment of Penry-Davey J
A speedy trial was ordered and the claim was heard by...
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Comment
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