A step back in time - Doctors win back the right to be legally represented at disciplinary hearings

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    In this case, Dr Kulkarni, who was employed by the Milton Keynes Hospital NHS Trust, was a young doctor who had just started off his career. He was faced with a serious allegation (a female patient complained that he had inappropriately examined her), which if substantiated could lead to the end of his potentially successful career. The Trust, in accordance with its disciplinary procedures, refused to allow Dr Kulkarni legal representation during the internal disciplinary proceedings. Before 2005, Doctors had, as a matter of course, had the right to be legally represented. However under the Government's guidance, Maintaining High Professional Standards in the Modern NHS 2005 ("MHPS"), this right was removed.

    Dr Kulkarni complained to the High Court that his right to legal representation was a necessary requirement of a fair hearing - this was initially dismissed. However now, the Court of Appeal ("CA") has overturned the previous ruling and in a recent judgment that will have far reaching implications for the National Health Service (and possibly for other public bodies too), established that doctors and dentists are entitled to legal representation at internal disciplinary hearings to determine serious disciplinary charges made against them.

    Barrister and Partner, Jasvir Kaur of Hammonds LLP, who represented the Trust said:

    "For many years, doctors enjoyed the right to be legally represented at disciplinary proceedings under the old regime. This long protracted and expensive process led to huge dissatisfaction amongst NHS employers. So when the MHPS was introduced, removing the right to legal representation, it was a welcome change for employers. However, this exclusion has now (for the moment) been successfully challenged. Doctors are being singled out to be given special treatment here, other professionals such as lawyers, accountants or nurses do not benefit from such a privilege even though they could be subject to equally serious allegations with equally serious implications on their careers."

    The Secretary of State for Health, who became an interested party during the Court of Appeal proceedings, has successfully sought leave to appeal against the CA's decision to the House of Lords. It will be interesting to see what they decide and whether it will mean overturning the CA's decision or requiring the Government to modify the MHPS. Whatever the outcome, it is a key case for the NHS and doctor - so watch this space!


    For further information contact:

    Dawn Lewis, National Brand Manager & Marketing Manager for Human Capital, Hammonds LLP, on 0161 830 5091 or email: dawn.lewis@hammonds.com

    Nicola Woodmass, Head of Communications on 0121 222 3690 or email: nicola.woodmass@hammonds.com

    Alternatively please contact the writer, Jasvir Kaur: on jasvir.kaur@hammonds.com

    In May 2008, international law firm Hammonds became a limited liability partnership. Hammonds LLP and its affiliated undertakings has offices in Birmingham, Leeds, London and Manchester in the UK, and in Berlin, Brussels, Beijing, Hong Kong, Madrid, Munich and Paris.

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