Judgement published in Mattu v University Hospitals of Coventry and Warwickshire NHS Trust
We last reported on this case back in October of last year, following the hearing in the High Court. The decision of the High Court was that Dr Mattu’s dismissal was not carried out in breach of contract and, further, that Article 6 of the European Convention on Human Rights was not engaged during the disciplinary process as his dismissal did not prevent him from practising as a consultant cardiologist. They held that that he would only be so prevented if the General Medical Council removed or suspended his registration.
Following an appeal from Dr Mattu against the High Court decision, the case has gone on to be heard in the Court of Appeal (CA). The case was heard in March and the judgement was published earlier this week, as reported by Alastair Currie.
The key question in this case was whether doctors' disciplinary proceedings are covered by Article 6 of the Human Rights Directive (the right to a fair trial). Dr Mattus argued that his dismissal had been a determination of his civil rights that did not comply with his rights under Article 6.
If such proceedings were held to be covered then this would mean that NHS Trusts (and other private organisations who employ doctors) would have to comply with a number of additional procedural requirements, two of the most important of which are that the decision must be taken by an independent and impartial tribunal/panel, and that the parties are entitled to legal representation (over and above that which is already entitled by the Kulkarni decision, which we reported on here.
The decision, which will be widely welcomed by NHS Trusts and private sector employers who employ doctors, was that Article 6 does not apply to doctors' disciplinary proceedings. The CA held that the decision to dismiss Dr Mattu did not affect his right to practice his profession; as they made clear, it was not a “realistic conclusion that the dismissal will render Dr Mattu unemployable elsewhere”. As picked up in the judgement, Dr Mattu could continue working either in an NHS Trust or in private practice. Consequently, “his civil right, lawfully to practice his profession, was not engaged”.
The decision is also important and positive for other employers as the CA held that the application of Article 6 is not confined to doctors and similar professionals. They held that the European Convention on Human Rights, in particular Article 6, is blind to social, professional and economic status and, if applicable, can provide essential protection to all employees. So, if they had not found Article 6 was not engaged it could have had a significant impact.
The CA indicated a reluctance in passing any judgement which required employers to second-guess whether or not a dismissal could, in practice, prevent the employee from working in his or her chosen profession. They held such action would be an "invitation to uncertainty", which could easily lead to legal challenge and, furthermore, would incur costs which would better be spent in caring for patients.
In their judgement the CA also provided some guidance on the Kulkarni judgement which they sought to distinguish from this case. However it should be noted that the judges were slightly different in their approaches; whilst Lord Justice Stanley Burnton commented that, in his view, the obiter remarks (which related to Article 6) which were made in that case “do not represent the law”, Sir Stephen Sedley chose to reign in this statement, only going so far as to state that the decision “must be treated with caution”.
Alongside the main Article 6 question, the CA also looked at a number of other issues, a key one being the classification of personal or professional misconduct. This related to the allegation that Dr Mattu had refused comply with a reasonable management instruction to sign a workplan.
The reason for clarifying this was that an allegation of professional misconduct would require a professional advisor to the investigator and an external professional panel member (as stipulated under ‘Maintaining High Professional Standards in the Modern NHS’ (MHPS) which, in this case, were not provided.
Helpfully, the CA found that a practical interpretation should be given to this distinction, so that:
• not every allegation of misconduct against a doctor is
necessarily professional misconduct;
• allegations of misconduct outside of employment, such as shoplifting, are clearly not professional misconduct; and
• "if there is no utility in having a medically qualified person on the panel, it is difficult to see that the allegation is of professional misconduct".
This decision is a very welcome one for NHS Trusts and other employers. In essence it confirms that employees do not have to be offered legal representation at disciplinary hearings, unless this is specifically set out in either the employment contract for that individual, or the organisation’s disciplinary procedure (neither of which is normal practice).
John Cavanagh QC, who represented the Defendant Trust in this case (University Hospitals of Coventry and Warwickshire NHS Trust) will be one of our speakers at our upcoming Workforce Forum on 12 June 2012. He will be speaking about MHPS in the context of doctors' performance management.
This event is by invitation only, should you wish to attend, please contact Jodie Sinclair on email@example.com.