Legal representation and the Human Rights Act
Where the effect of disciplinary proceedings can deprive an employee of the right to practise his or her profession, article 6 of the Human Rights Convention is engaged. If follows that he is entitled to be legally represented at such proceedings, notwithstanding that the terms of his contract might suggest otherwise. (Kulkarni v Milton Keynes Hospital NHS Foundation Trust & Ors [2009] EWCA Civ 789.)In this case it was said that, while only proceedings before the General Medical Council can deprive a doctor of the right to practise, the National Health Service is, to all intents and purposes, a single employer for the whole country and if a trainee doctor was found guilty in NHS disciplinary proceedings of conduct which could amount to a criminal offence he would be unemployable as a doctor and would never complete his training.
See also the case ofG, R (on the application of) v X School & Anor [2009] EWHC 504 (Admin).
In neither of these cases was reference made to the earlier decision of the Court in the case of Pine v Law Society (2001) EWCA 1574 which adopted a much more restrictive approach to this subject.
In her judgment Smith LJ commented that ‘once the 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 possible implications of this are explored in a note in the Summer 2009 edition of the ARDL Bulletin.
Categories: 5th Edition, Chapter 13, Updates