Case Law Update. Matthew Barnes. Making representations in disciplinary hearings

Transcription

1 Case Law Update Matthew Barnes Making representations in disciplinary hearings 1. In Kulkarni v Milton Keynes Hospital NHS Trust [2009] EWCA Civ 789, the Court of Appeal considered the extent to which a doctor facing internal disciplinary proceedings had a right to legal representation, whether by reason of his contractual terms or otherwise. 2. Dr Kulkarni s contract of employment incorporated the Department of Health s Maintaining High Professional Standards in the Modern NHS [MHPS], which stated at paragraph 22: 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. 3. Lady Justice Smith, giving the judgment of the Court of Appeal, concluded, at paragraphs 59 and 60, that: In my view, properly construed, paragraph 22 permits a practitioner to be represented by a legally qualified person, employed or retained by a defence organisation. Retained by must include instructed by. The two words mean the same. However, the doctor is not permitted to bring a legally qualified person whom he has instructed or retained independently, for example, his family solicitor or a barrister instructed by that solicitor. He cannot, for example, bring a legally qualified person employed by a law centre. If he happens to have a

2 2 spouse, partner, colleague or friend who is legally qualified and who is prepared to represent him, that is permitted. In my view, the expression not representing the practitioner formally in a legal capacity is devoid of meaning. If legal capacity were intended to be synonymous with professional capacity then I could understand that the lawyer who was a friend, spouse, partner or colleague could be said to be acting in a personal capacity as opposed to a professional capacity. Even so, that person would be entitled to do all the things that lawyers do when representing clients. Those functions are set out at the end of paragraph 22. But when it is seen that a legally qualified person either employed or retained by a defence organisation may represent the practitioner, it is meaningless to say that that person is not acting in a legal or professional capacity. I wholly reject Miss Lee s attempts to limit the scope of what the lawyer might be permitted to do. I accept Mr Stafford s submission 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. 4. Having decided that Dr Kulkani was contractually entitled to legal representation, Lady Justice Smith went on to consider whether she would have reached the same conclusion by applying Article 6. Lady Justice Smith concluded, at paragraph 67, that: I would have held that article 6 is engaged where an NHS doctor faces charges which are of such gravity that, in the event they are found proved, he will be effectively barred from employment in the NHS. Lady Justice Smith went on to conclude that, on the facts of the case before the Court, the fact that Article 6 was engaged implied a right to legal representation, and concluded, at paragraph 68, that: in circumstances of this kind, it should imply such a right because the doctor is facing what is in effect a criminal charge, although it is being dealt with by disciplinary proceedings. The issues are virtually the same and, although the consequences of a finding of guilt cannot be the deprivation of liberty, they can be very serious.

3 3 5. The issue of the right to legal representation in disciplinary hearings was revisited by the Court of Appeal in R (G) v X School Governors [2010] EWCA Civ 1. G was a teaching assistant who faced disciplinary procedures following an accusation that he had been involved in a sexual incident with a 15-year old boy who was undertaking work experience at the school, and had also been referred to the Secretary of State for Children, Schools and Families, pursuant to s.142 of the Education Act 2002, to consider adding his name to the statutory register of persons prohibited from work involving children in educational establishments. G was permitted legal representation for the hearing in relation to the statutory register, but not the disciplinary hearing. 6. At the internal disciplinary hearing and subsequent appeal hearing, G was told that he could not have a legal representative - only a colleague or trade union representative could represent him. A legal representative was allowed for the hearing on listing in the statutory register. Lord Justice Laws, giving the judgement of the Court of Appeal, concluded, at paragraph 37, that: where an individual is subject to two or more sets of proceedings (or two or more phases of a single proceeding), and a civil right or obligation enjoyed or owed by him will be determined in one of them, he may (not necessarily will) by force of article 6 enjoy appropriate procedural rights in relation to any of the others if the outcome of that other will have a substantial influence or effect on the determination of the civil right or obligation. I do not mean any influence or effect which is more than de minimis: it must play a major part in the civil right's determination. I do not intend a hard and fast rule. Principles developed by the Strasbourg court for the interpretation and application of the ECHR tend not to have sharp edges; as I have said, the jurisprudence is generally pragmatic and fact-sensitive. The nature of the right in question may make a difference. So may the relative authority of courts, tribunals or other bodies playing their respective parts in a case, such as the present, where connected processes touch a Convention right.

4 4 7. Lord Justice Laws went on to describe the test to be applied, at paragraph 43, as follows: it is unnecessary to decide, as the judge did, whether or not the disciplinary process and the barred list procedures formed part of one and the same proceedings for the purposes of Article 6. That is (as I have indicated) altogether too formalistic a process. The true question is whether there is a sufficiently close nexus between these processes. Such a nexus is in my judgment established if the test of substantial influence or effect, as I have described it, is met. 8. At paragraph 47, Lord Justice Laws concluded that, on the facts of the case before the Court: there is every likelihood that the outcome of the disciplinary process in a case like this, where there has been a finding of abuse of trust by virtue of sexual misconduct, will have a profound influence on the decision-making procedures relating to the barred list. The governors' conclusion comprised both a finding of fact and a judgment as to where the facts lay on the scale of severity that in the particular case fell to be applied. 9. Having concluded that Article 6 was engaged, Lord Justice Laws went on to observe, at paragraph 51, that the engagement of Article 6 in civil proceedings did not necessarily entail a right of representation, but might do so, before further concluding that it did on the facts before the Court, given the gravity of the issues at stake. 10. In R (on the application of Royal College of Nursing & others) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin), Mr. Justice Wyn Williams was concerned with the lawfulness of a scheme established under the Safeguarding Vulnerable Groups Act 2006, which prohibits those placed on lists

5 5 established under the scheme from working with children and/or vulnerable adults, and in particular the fact if a person was convicted or cautioned of a variety of sexual offences, and offences involving violence or the mistreatment of children, that person was automatically included in the list, although they could then make representations that they should be removed from the lists. 11. There were five claimants. The first was the Royal College of Nursing. The other four were nurses who had been placed on the lists. Of those four, two had accepted a caution in relation to leaving their children at home unsupervised, the third had received a caution for having kissed a young woman without consent, and the last was not yet on the list, but was under investigation for allegedly being drunk at work. All those placed on the lists faced delays before they could make representations, and were then taken off the lists, but only after many months of being unable to work in their chosen field. 12. Mr. Justice Wyn Williams concluded that he was not bound by R (Wright) v Secretary of State for Health & Another [2009] 2 WLR 267, which related to a similar statutory scheme, albeit a scheme under which a person could be placed on a barred list on the basis of unproven allegations, but found the reasoning persuasive, and reached similar conclusions as to the lawfulness of the scheme. 13. Mr. Justice Wyn Williams concluded, at paragraph 47, that the inclusion of a person s name upon the barred lists was an act which was concerned with that person s right to take employment in the nursing sector, and accordingly

6 6 determined a civil right within the meaning of Article 6, so that Article 6 was engaged. 14. At paragraph 61 Mr. Justice Wyn Williams rejected the submission made by the Secretary of State that the likely consequences for the individuals were an acceptable consequence of a lawful holding measure, justified by the seriousness of the relevant offences and the effect that allowing perpetrators to work with children would have, given the delays in placing individuals on the lists. 15. Mr. Justice Wyn Williams concluded, at paragraph 67, that: As Dyson LJ explained so eloquently in Wright the denial of the right to make representations in advance of listing is not a mere formal or technical breach. It is a denial of one of the fundamental elements of the right to a fair determination of a person s civil rights, namely the right to be heard. In my judgment and notwithstanding the fact that the person concerned has been convicted or cautioned of a specified offence the denial of the right to make representations in advance of listing is a denial of a fundamental right. It is not justified on the basis put forward by the Defendant. I regard the denial of the right to a person to make representations as to why he should not be included upon one or more of the barred lists as being a breach of Article 6. Like Dyson LJ, I consider that it is the (often irreversible) detrimental effect of the inclusion in the list that makes the breach of Article 6 at the first stage of the process incurable by any of the measures later in the process which are designed to afford a sufficiency of procedural protection to the person concerned.

7 7 The scope of the power to suspend at IOP hearings 16. In Sandler v General Medical Council [2010] EWHC 1029 (Admin), Mr. Justice Nicol was dealing with an appeal from a decision of the IOP of the GMC to suspend a doctor who was charged with offences under the Cremation Act 1902, and accordingly posed no risk to patients. The reasoning of the IOP was recorded at paragraph 10 of the judgment as follows: In exercising its professional judgment and having determined that an interim order is in the public interest, the Panel then considered what would be the appropriate order. The Panel acknowledged that the sole concern was the public interest, and noted your wide ranging senior positions within the Trust Management as Clinical Director, regional and national duties for a range of professional organisations and other high level roles within the medical profession. The Panel noted in your curriculum vitae that you have been the Chairman of the Training Committee of Acute Medicine and are an Examiner for the Royal College of Physicians, positions which are widely respected and influential on junior doctors. In reaching its decision the Panel determined that the public interest includes upholding the standards of professional conduct and behaviour and the reputation of the profession, expected of a registered medical practitioner. The Panel has taken into account of the issue of proportionality and has balanced the need to protect the members of the public, the public interest and your own interests against the consequences for you of the suspension of your registration. Whilst the Panel notes that its order has removed your ability to practise medicine, it considers that, in view of the serious allegations in which you have made some admissions to, there are no conditions which would adequately protect the public interest, which includes the maintenance of public confidence in the medical profession and its practitioners. In all the circumstances, it considers that the suspension of your registration is an appropriate response. 17. At paragraph 14 of his judgment, Mr. Justice Nicol rejected the argument that suspension on public interests could only be imposed if necessary, as is the case where suspension is imposed for the protection of the public, as follows:

8 8 There was some debate at the hearing as to whether the IOP could only suspend Dr Sandler on public interest grounds if this was necessary. In my judgment, the Legal Adviser was plainly right to observe that, while the statute allows suspension on public protection grounds only if this is necessary, there is no such qualification to the public interest limb. In Sheikh at [15] Davis J. thought that nonetheless if the public interest is to be invoked in this context under the statute, then that to my mind, does at least carry some implication of necessity; and certainly it at least carries with it the implication of desirability. He added at [16] At all events, in the context of imposing an interim suspension order, on this particular basis, it does seem to me, adopting the words of Mr Winter [counsel for the Claimant], that the bar is set high; and I think that, in the ordinary case at least, necessity is an appropriate yardstick. That is so because of reasons of proportionality. I certainly agree that a doctor could not be the subject of interim suspension unless this was at least desirable in the public interest. I also agree that the Panel must consider very carefully the proportionality of their measure (weighing the significance of any harm to the public interest in not suspending the doctor against the damage to him by preventing him from practising), but I do, with respect, think that the Court must be cautious about superimposing additional tests over and above those which Parliament has set. 18. At paragraph 23 of his judgment, Mr. Justice Nicol concluded that the allegations, which were described as the willful signing of false certificates alleged to have taken place on at least 116 occasions over a number of years in the course of the doctor s clinical duties were sufficient to outweigh the prejudice to the doctor resulting from the suspension. In doing so, Mr. Justice Nicol gave considerable weight to the IOP s view that: the reputation of the profession could be adversely affected (and correspondingly, the public interest could be damaged) if a doctor who faced such serious allegations was allowed to continue to practise while they proceeded through the courts. In the circumstances, Mr. Justice Nicol maintained the suspension imposed by the IOP.

9 9 Procedure before the Investigation committee 19. In Loutfi v General Medical Council [2010] EWHC 1762 (Admin), Mr. Justice Nicol was considering a case in which a warning had been given to Dr Loutfi following a referral to the Investigation Committee of the General Medical Council in relation to allegations of assault, arising out of a fight that took place between two doctors, which had been witnessed by two nurses. At the hearing no witnesses had been called, but Dr Loutfi had given evidence, and was cross examined. 20. Dr Loutfi sought to have the decision quashed on the grounds that included the failure by the Investigation Committee to comply with rule 34(9) of the General Medical Council (Fitness to Practise) Rules 2004, on the basis that, if rule 34(9) had been complied with, it would have been plain that the witnesses to the fight would not be called unless he requested it. Rule 34(9) provides as follows: (9) In relation to proceedings before the Committee or a FTP Panel, unless otherwise agreed between the parties or directed by a Case Manager, each party shall not less than 28 days before the date of a hearing- (a) provide to the other party a list of every document which he proposes to introduce as evidence; (b) provide to the other party a copy of every document listed in paragraph (a) which the other party has not previously received; and (c) require the other party to notify him, within 14 days of the list being provided to him, whether or not he requires any relevant person to attend and give oral evidence in relation to the subject matter or making of such document.

10 Mr. Justice Nicol accepted that Rule 34(9) applied, and that the failure to follow the procedure described therein rendered the conclusion s of the Investigation Committee flawed, and quashed their decision to give Dr Loutfi a warning. The scope of Fitness to Practice 22. In R (Remedy UK Ltd) v General Medical Council [2010] EWHC 1245 (Admin), the GMC Registrar had refused to refer to case examiners allegations against the Chief Medical Officer for England and a professor of medicine that they had been seriously deficient in making and implementing the Medical Training Appointments System, which an independent inquiry had found was seriously flawed both in terms of policy and implementation. The Claimant s challenge to this decision was rejected by the Divisional Court 23. At paragraph 37, the Divisional Court reviewed the authorities, and gave the following guidance as to the definition of misconduct: a. Misconduct is of two principal kinds. First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise. Second, it can involve conduct of a morally culpable or otherwise disgraceful kind which may, and often will, occur outwith the course of professional practice itself, but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession. Misconduct of the first kind must be in the exercise of the doctor s medical calling.

11 11 b. Conduct can properly be described as linked to the practice of medicine, even though it involves the exercise of administrative or managerial functions, where they are part of the day to day practice of a professional doctor usually a failure to adequately perform these functions will fall within the scope of deficient performance rather than misconduct. c. Misconduct may also fall within the scope of a medical calling where it has no direct link with clinical practice at all for example, expert medical testimony at trial or medical research or education. d. Depending upon the nature of the duties being exercised, a continuing obligation to focus on patient care may co-exist with a range of distinct administrative duties, even where other doctors with a different specialty have primary responsibility. e. Conduct falls into the second limb [of misconduct] if it is dishonourable or disgraceful or attracts some kind of opprobrium it matters not whether such conduct is directly related to the exercise of professional skills. f. Deficient performance or incompetence may in principle arise from the inadequate performance of any function which is part of a medical calling but unlike the concept of misconduct, conduct unrelated to the profession of medicine could not amount to deficient performance putting fitness to practise in question. Even where deficient performance leads to a lack of confidence and trust in the medical profession this will not of itself suffice to justify a finding of gross misconduct.

12 12 g. Action taken in good faith and for legitimate reasons, however inefficient or ill-judged, is not capable of constituting misconduct merely because it might damage the reputation of the profession. 24. The Divisional Court concluded, at paragraph 49, that whilst there is not a clear line mapping the boundary between conduct which is capable of rendering a doctor unfit to practise and conduct which is not the allegations made here fall clearly into the latter category. The reasoning of the Divisional Court was that there was no sufficiently close link between what they were doing and the profession of medicine (see paragraphs 48 49), and the making and implementation of government health policy is not a medical function, even where the policies in issue directly relate to doctors (see paragraph 51). 25. In Yeong v GMC [2009] EWHC Admin, Mr. Justice Sales considered, and upheld, the conclusion of the GMC Fitness to Practice Panel that the fitness to practice of a consultant obstetrician and gynaecologist, who had a two-year relationship with a patient in Singapore, but was at low risk of repeating such conduct, was impaired. The Fitness to Practice Panel had concluded that: the general public interest in clearly marking proper standards of behaviour for doctors in respect of relationships with their patients so as to uphold public confidence in the medical profession was by far the weightiest factor pointing in favour of the finding of impairment of fitness to practise and the sanction which was imposed (see paragraph 40 of the judgment).

13 Mr. Justice Sales rejected the submission made on behalf of Dr Yeong that the Fitness to Practice Panel had applied the wrong test for impairment by failing to place sufficient weight on remedial action taken by Dr Yeong, accepting the submission made on behalf of the panel, and recorded at paragraph 48 of the judgment, that:...where a FPP considers that the case is one where the misconduct consists of violating such a fundamental rule of the professional relationship between medical practitioner and patient and thereby undermining public confidence in the medical profession, a finding of impairment of fitness to practise may be justified on the grounds that it is necessary to reaffirm clear standards of professional conduct so as to maintain public confidence in the practitioner and in the profession. In such a case, the efforts made by the medical practitioner in question to address his behaviour for the future may carry very much less weight than in a case where the misconduct consists of clinical errors or incompetence. Expert evidence 27. In R v Henderson, Butler & Oyediran [2010] EWC Crim 1269, the Court of Appeal were dealing with appeals from convictions in shaken baby cases, and gave useful guidance as to the role and utilization of expert evidence in criminal trials, which are likely to be of assistance when considering the same issues in the context of disciplinary proceedings. All of the guidance repays reading for those with cases requiring expert evidence on complicated and developing areas of medicine. However, for the purposes of this talk, the following three general points are of note.

14 At paragraph 206, the Court Appeal dealt with the test of admissibility of expert evidence, as follows: The test adopted by this court in Harris was described in the judgment of King CJ in R v Bonython [1984] 38 SASR 45: First, whether the subject matter of the opinion falls within the class of subjects upon which the expert testimony is permissible and second, whether the witnesses acquired by study or experience have sufficient knowledge of the subject to render their opinion of value in resolving the issues before the court. Bonython was cited by this court in R v Reid & Ors [2009] EWCA Crim 2698 [111(i)] with the qualification that it is important that the court acknowledges advances to be gained from new techniques and new advances in science. Reid is concerned with DNA evidence but the observations of the court in relation to the admissibility of expert evidence apply with equal force to cases concerning baby shaking as it applied to the developing science of DNA. 29. At paragraph 208, the Court of Appeal emphasised the importance of an expert being in relevant clinical practice at the time he provides his evidence, as follows: The fact that an expert is in clinical practice at the time he makes his report is of significance. Clinical practice affords experts the opportunity to maintain and develop their experience. Such experts acquire experience which continues and develops. Their continuing observation, their experience of both the foreseen and unforeseen, the recognised and unrecognised, form a powerful basis for their opinion. Clinicians learn from each case in which they are engaged. Each case makes them think and as their experience develops so does their understanding. Continuing experience gives them the opportunity to adjust previously held opinions, to alter their views. They are best placed to recognise that that which is unknown one day may be acknowledged the next. Such clinical experience, demonstrated, for example, by Dr Peters in the case of Henderson, may provide a far more reliable source of evidence than that provided by those who have ceased to practise their expertise in a continuing clinical setting and have retired from such practice. Such experts are, usually, engaged only in reviewing the opinions of others. They have lost the opportunity, day by day, to learn and develop from continuing experience.

15 At paragraph 210, the Court of Appeal dealt with the implications of the Criminal Procedure Rules on expert meetings, and single joint experts, as follows: Generally, it will be necessary that the court directs a meeting of experts so that a statement can be prepared of areas of agreement and disagreement (33.6.2(a) and (b)). Such a meeting will not achieve its purpose unless it takes place well in advance of the trial, is attended by all significant experts, including the defence experts, and a careful and detailed minute is prepared, signed by all participants. Usually it will be preferable if others, particularly legal representatives, do not attend. Absent a careful record of the true issues in the case, it is difficult to see how the trial can be properly conducted or the jury properly guided as to the rational route to a conclusion. The court may be required to exercise its important power to exclude evidence from an expert who has not complied with a direction under [33.6(2), 33.6(4)]. The court should bear in mind the need to employ single joint experts where possible (33.7). MATTHEW BARNES 1 Crown Office Row Temple London, EC4Y 7HH 13 April 2011