Kulkarni v Milton Keynes Hospital NHS Trust [2008] EWHC 1861 (QB)

[2008] EWHC 1861 (QB)Case No TLQ/08/0228
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/08/2008
Before
MR JUSTICE PENRY-DAVEY
Between
Dr. Kunal KulkarniClaimantMilton Keynes Hospital NHS TrustDefendant
Mr. John Hendy QC & Mr Jonathan Davies (instructed by Radcliffes Le Brasseur) for ClaimantMr. Damian Brown (instructed by Hammonds) for DefendantHearing Hearing dates: 16,17 &18 July 2008
Judgment

The Hon. Mr. Justice Penry-Davey :

[1]The Claimant applies to extend an interim injunction granted by Dobbs J. on 12 February 2008. He seeks a declaration that the Defendant is in breach of contract in following the disciplinary procedure “Maintaining High Professional Standards in the Modern NHS” (MHPS) (although part of that aspect of the case has been abandoned) , and a declaration that he should be allowed legal representation. He seeks a further order that the Defendant should not be able to refer to an earlier allegation against him leading to criminal charges of which he was acquitted. The Defendant applies to discharge the interim injunction on the basis that it should not have been granted in the first place. There was it is submitted no serious issue to be tried; serious and unexplained delay before the application was made; it should not have been made without notice and there was material non disclosure in that neither the defence of the Defendant nor the relevant disciplinary procedure which was in the Claimant’s possession were put before the court.[2]The Claimant was employed by the Defendant on 31 July 2007 in the capacity of a Foundation Year 1 House Officer. He signed a copy of the National Statement of Particulars of Employment for junior doctors on 30 July 2007. The appointment was subject to the Terms and Conditions of Service of Hospital Medical & Dental Staff as amended: Clause 2 thereof. The disciplinary procedure was stated to be that set out in section 42 General Whitley Council Conditions of Service as incorporated by paragraph 189 of the Terms and Conditions of Service: Clause 17 thereof.

(a) provides that:

“In England, wherever possible, any issues relating to conduct and capability should be identified and resolved without recourse to formal procedures. However, should an employing authority consider that a practitioner’s professional conduct and capability may be in breach of the authority’s code of conduct, or that a practitioner’s professional competence has been called into question, the matter will be resolved through the authority’s disciplinary or capability procedures (which will be consistent with the ‘Maintaining High Professional Standards in Modern NHS’ framework) subject to the appeal arrangements set out in those procedures. Any allegations of misconduct against, or capability concerns about a doctor or dentist in a recognised training grade should be considered initially as a training issue and dealt with via the educational supervisor with the close involvement of the postgraduate dean from the outset.”
[3]The disciplinary framework set out in part III of MHPS is a framework that all NHS Trusts including the Defendant were obliged to implement by 1 June 2005 pursuant to paragraph 2 of the Directions on Disciplinary Procedures 2005 given by the Secretary of State for Health in exercise of the powers conferred on her by the National Health Service Act 1977 and the National Health Service and Community Care Act 1990. Paragraph 14 of Part 1 of MHPS provides for a practitioner to be accompanied at the disciplinary stage by a companion and continues:
“In addition to statutory rights under the Employment Act 1999 the companion may be another employee of the NHS body; an official or lay representative of the British Medical Association, British Dental Association or defence organisation; or a friend, partner or spouse. The companion may be legally qualified but he or she will not be acting in a legal capacity.” 4. The Defendant’s own disciplinary policy provides in paragraph 4.2 as follows: “A member of staff required to attend either an investigative interview or a formal disciplinary hearing at any level within the Procedure will have the right to be accompanied by a representative of a trade union / professional organisation, by a work colleague, or friend, partner or spouse not acting in a legal capacity (companion). The trade union / professional representative or companion will be allowed to present the case on behalf of the member of staff and to question any witnesses called. The member of staff should, however, respond personally to questions posed by the investigating officer or disciplining manager, as appropriate. ”
[4]Paragraph 4.8 provides a right of appeal to the Defendant’s board from any decision to issue a final written warning or to dismiss. Paragraph 8.2 provides that:
“Employees will be required to appear personally before the appeal committee either alone or accompanied by a representative of their trade union / professional organisation, by a work colleague, or friend, partner or spouse not acting in a legal capacity (companion) ”
Those procedures are clearly and expressly consistent with MHPS and the introduction refers to the MHPS framework. As part of the recruitment process, the Claimant was required to complete a criminal records bureau check, which showed he had been accused of sexual assault on a patient whilst in earlier employment but acquitted at trial. It appears that he had disclosed that matter on his application form some time in July 2007. On 24 August 2007 just under 4 weeks after the Claimant commenced employment with the Defendant , a patient made a complaint that he inappropriately examined her by placing a stethoscope under her knickers without her permission. In accordance with MHPS and the Trust’s own procedures the Claimant was excluded with immediate effect on full pay pending an investigation into the matter. On 30 August 2007 Dr Lanzon Miller (the Defendant’s Medical Director) confirmed the Claimant’s exclusion and the appointment of Ms Naomi Whitelaw, consultant in obstetrics and gynaecology, as a case investigator into the matter.[5]On 31 August 2007 Dr Marika Davies, a medico-legal adviser from the Medical Protection Society (MPS) on behalf of the Claimant wrote to Dr Lanzon Miller stating that Dr. Lanzon Miller had informed her that the Defendant did not have its own policy incorporating MHPS and that the Defendant therefore intended to follow the Department of Health framework documents. Dr. Lanzon Miller’s hearsay evidence is that had he been asked the question he would have confirmed that the Defendant was following its disciplinary policy and procedure which incorporated MHPS. In her letter of 31 August to Dr Lanzon Miller Dr. Davies requested that the Defendant follow the process under MHPS by sending the Claimant information regarding the investigation including the identity of the case investigator and the specific allegations or concerns that had been raised. There was some delay as the patient who had made the complaint was out of the country and the Claimant had not been able to attend a meeting due to the unavailability of his representatives. On 4 September 2007 Dr. Lanzon Miller advised the Claimant in writing that in view of the patient being on holiday and the delay in arranging a meeting with him, the investigation would be concluded by 7 September. After discussions with the National Clinical Assessment Services the Claimant was formally excluded. He was informed by that letter that in accordance with MHPS the exclusion would be reviewed every 4 weeks.[6]On 3 October 2007 Dr.Lanzon Miller wrote to the Claimant informing him that as part of the investigation issues had arisen regarding the documentation and he was also waiting for a signed statement from the patient. He referred to the previous incident during the Claimant’s employment at the Great Western Hospital in Swindon. He stated that he would be contacting the medical director at the previous trust to see whether there were any other issues or investigations that were carried out at that Trust. He confirmed that the exclusion was extended for a further 4 weeks. The Claimant asked to be able to consult Dr Davies. On 5 October 2007 Dr Davies e-mailed Dr Lanzon Miller and asked him to ensure that a distinction was kept between case manager and case investigator as set out in MHPS. In relation to the previous incident Dr Davies stated that while she understood as case manager Dr Lanzon Miller must take into account all relevant background when deciding what action to take, this should only happen after the investigation had been concluded. She suggested that there was limited information held by Swindon NHS Trust and given the sensitive nature of the previous matter that it would be extremely unfortunate if it was to be presented in an unbalanced way albeit unintentionally. She suggested that the Claimant should have access to the information provided by Swindon NHS Trust and the opportunity to correct any misunderstandings that might arise. On 8 October Dr Davies wrote to Dr Lanzon Miller asking the Defendant to comply with its obligations under MHPS by considering whether or not the Claimant could return to work in a limited capacity or in an alternative non-clinical role pending resolution of the case. On 16 November 2007 Dr Davies requested a copy of the Defendant’s disciplinary process that it would be following and she was supplied with the Defendant’s disciplinary policy and procedure expressly incorporating MHPS. . On 23 November 2007 Ms Wilkinson , the Defendant’s Director of Human Resources, spoke to Dr Davies informing her that a copy of the disciplinary policy and procedures was in the post to her that day and when Dr Davies asked whether the Claimant could have legal representation, Ms Wilkinson confirmed that the procedure did not allow for legal representation in that whoever represented the doctor must not be acting in a legal capacity. On 26 November Dr Davies acknowledged receipt of the disciplinary policy. On 30 November 2007 Dr Lanzon Miller wrote to the Claimant informing him that in the light of the investigative report he had decided that the matter should be referred to a disciplinary hearing which would take place on 11 December. In reaching that decision he stated that he had taken into account the previous incident. He explained in detail in the letter how the hearing would be carried out including the witnesses who would be attending. He enclosed a copy of the investigative report and confirmed that the Claimant had the right to be accompanied by a representative not acting in a legal capacity. He went on to say that his understanding was that Dr Davies from MPS would be representing the Claimant.[7]On 5 December 2007 Dr Davies replied stating that she did not believe that the hearing scheduled for 11 December could take place in the light of her concerns. She took issue with Dr Lanzon Miller sitting on the panel given that he was the case manager during the investigation process, queried the extent to which the Defendant would be relying on the previous incident, and sought clarification of the allegations against the Claimant. On the question of legal representation she suggested that it was not open to the employer to fetter its own discretion to allow formal legal representation if this was justified in the individual case. She stated her belief that the circumstances complexities and potential seriousness of the case would justify the granting of legal representation to the Claimant, and invited the Defendant to consider such a proposal as a matter of urgency. She invited a postponement of the hearings so that the parties could discuss the matter. She pointed out that the disciplinary procedure whilst providing for 5 days as sufficient time for the employee to prepare for a hearing also gave the facility for that to be extended by the consent of both parties. She indicated that advice had been taken and the right to take action was reserved. Sometime between 5 December and 21 December Ms Wilkinson spoke to Dr Davies about the question of legal representation. She explained that the Defendant had considered the request that the Claimant be allowed to be legally represented at the disciplinary hearing. The decision had been made that there were no exceptional circumstances in the case which would justify the Defendant deviating from its disciplinary policy and procedure. The fact that the Claimant was represented by the Medical Protection Society and Dr Davies was taken into account, and the belief at that time was that Dr Davies was qualified as doctor and lawyer and therefore the Claimant was able to call on a legally qualified individual to represent him at the disciplinary hearing without the need to resort to instructing a lawyer to attend in a legal capacity. On 21 December Dr Lanzon Miller replied pointing out that MHPS did not stipulate that the case manager should not sit on the panel, nor did the Trust policy; nonetheless in order to ensure that the Claimant felt that he was having a fair hearing Dr Lanzon Miller indicated that he would reconstitute the panel and appoint an external chair. He responded to the other concerns expressed and confirmed that the Claimant did not have the right to be accompanied at the hearing by somebody acting in a legal capacity. Dr Davies in her reply of 7 January 2008 indicated that she would be taking further advice from the Claimant and her advisers and reserved her position in respect of the points of concern. She referred to the Swindon matter suggesting that information or documentation about it should only be used in considering the appropriate sanction and suggesting it would not be right for any adjudication panel to be made aware of the matter when considering the incident under scrutiny. On 28 January 2008 Ms Wilkinson spoke to Dr Davies on the telephone and confirmed that all the information that the medical director was intending to refer to had been included in the bundle of documents sent. Dr Davies restated her concern about the previous complaint suggesting that information about it should not be made available to the panel other than for the purpose of determining the level of action if any required but Ms Wilkinson indicated that the medical director considered the information to be relevant and would be referring to it during the course of the hearing. On 29 January, Dr Lanzon Miller wrote to Dr Davies advising her of the re-arranged date of the disciplinary hearing (13 February 2008). On 4 February 2008 Radcliffes Le Brasseur instructed by the MPS wrote to Dr Lanzon Miller noting that the Defendant had proceeded on the basis that the contractual disciplinary procedure to be followed was that contained within MHPS. The letter questioned what steps the Defendant had taken to incorporate such procedures into the Claimant’s contract of employment and suggested that having regard to the seriousness of the allegation and the potential consequences the Claimant should be allowed legal representation. It identified a fundamental dispute of fact and referred to the circumstances of the previous matter, the acquittal of the Claimant by a jury and the Defendant’s intention to rely on the previous matter as requiring the additional protection of formal legal representation. The request was made to inform of the decision to allow legal representation and to postpone the hearing in the absence of which the solicitors had instructions to commence proceedings for breach of contract and to pursue injunctive relief in the High Court. That was followed by a letter of 7 February expressing understanding that the submissions made in the earlier letter had been rejected and asking for confirmation of the position in writing. On 12 February a without notice application was made to Dobbs J in which the submission was made on behalf of the Claimant that he was entitled to the protection of HC 90 (9) which set out in express terms his entitlement at a disciplinary hearing to have legal representation. The basis of that contention was that there was no evidence that the Defendant had incorporated MHPS in its procedures and accordingly HC90(9), withdrawn in 2005, applied. Reference was made to the case of Skidmore v Dartford & Gravesham NHS Trust (2003) ICR 721 a decision of the House of Lords establishing that HC 90 (9) formed part of a doctor’s contract of employment. The judge pointed out that HC 90(9) had been withdrawn in 2005 and replaced by MHPS which did not provide for legal representation. The Claimant also relied on breach of contract in relation to implied terms of trust and confidence which it was submitted required the Defendant’s directors to have discretion to permit the Claimant to have legal representation and that there was a serious issue to be tried. The submissions were accepted and the order was made. No reference was made to the Defendant’s disciplinary policy and the copy provided to Dr Davies in November was not disclosed to the court.[8]On 12 February the Claimant’s solicitors wrote to Ms Wilkinson enclosing a copy of the injunction. On 20 February solicitors responded on behalf of the Defendant expressing surprise at the basis on which the claim had been advanced. It asserted that HC (90) 9 had never been incorporated into the Claimant’s contract, was no longer the operative document at a time when the contract came into existence and that the only relevant document was MHPS. The letter continued “Our client commenced consultation with the local negotiating committee back in December 2004 regarding the implementation of Maintaining High Professional Standards into its own Disciplinary Policy and Procedure. This policy which expressly incorporates MHPS was approved at our client’s board meeting in May 2005. Therefore we believe there can be no question that Maintaining High Professional Standards does not apply to your client. You have also asserted that there is an implied term that he is entitled to legal representation. That implied term cannot displace the provisions of our client’s policy.” 10. It went on to assert that the term was not “necessary” and that there was no room for discretion as the policy was clear. The letter also raised the question of delay and continued:
“It is clear that the delay alone ought to have been fatal but you have failed to show a serious issue given that there can be no question about incorporation of our client’s policy in this case and as a consequence no room for implication or discretion. Your non disclosure to the court is similarly of a serious nature in relation to this issue. ”
The letter concluded by requesting confirmation that the Claimant would be applying to vary or revoke the injunction for the reasons set out.[9]The response dated 22 February was as follows:
“The court was not provided with a copy of your Claimant’s disciplinary policy as we did not have a copy to hand at the time. A further review of the documents provided by your Claimant has uncovered this document and we therefore must apologise that this was not placed before Mrs Justice Dobbs. I can assure you that there was no intention to mislead the court in this respect. Nevertheless we do not believe that this omission was material to our application.”
[10]The remainder of the letter sought to answer other points raised by the earlier letter. The response dated 5 March was as follows:
“It is not acceptable to say that you did not have a copy of our Claimant’s disciplinary policy to hand. Your client has faced investigatory and disciplinary proceedings since August 2007 and knew the basis on which the Trust, and we would say Dr. Davies, was proceeding. The document is highly material. It was introduced in May 2005 – before the Claimant’s employment, and paragraph 2 headed “Scope” contains the following wording: ‘It should be noted that the policy and procedures incorporates the new framework covering the new disciplinary procedures for doctors and dentists employed in the NHS. The new framework is contained in Maintaining High Professional Standards in the Modern NHS and should be referred to in conjunction with this policy and procedure when dealing with cases involving a doctor or dentist. A copy of the framework Maintaining High Professional Standards in the Modern NHS can be obtained from Human Resources Department on request.’ That is precisely what this case is about and had the judge been shown this document, and others, the only conclusion would have been that HC (90) 9 had no application in the case of the Claimant as he significantly post dated its existence and it was simply not incorporated into his contract.”
The letter went on to assert that the suggestion that there was a discretion was misconceived as there was an express term setting out representation rights.[11]MHPS was issued by the Department of Health in December 2003 after agreement had been reached with the BMA and other professional bodies on procedures on conduct hearings and discipline matters. All NHS bodies were required to implement the framework within their local procedures from 1 June 2005. The key changes were identified inter alia as follows:• The distinction between personal and professional misconduct is abolished. Doctors and dentists employed in the NHS will de disciplined for misconduct under the same locally based procedures as any other staff member;…• The employing Trust is squarely responsible for the disciplining of its medical and dental staff – not outsiders;…• The same discipline procedures will apply to all doctors and dentists employed in the NHS.”[12]The changes came about as a result of a number of factors including concern about the way in which complaints and disciplinary action against doctors and dentists had been handled, particularly the use of suspension. There was also the impact of section 10 of Employment Relations Act 1999 introducing a new statutory right for all employees to be accompanied. Paragraph 5 of Part 1 of the document headed “Protecting the Public” was in the following terms; “When serious concerns are raised about a practitioner, the employer must urgently consider whether it is necessary to place temporary restrictions on their practice. This might be to amend or restrict their clinical duties, obtain undertakings or provide for the exclusion of the practitioner from the workplace.”[13]I deal first with the application before Dobbs J. In the hearing before me, the Claimant no longer pursued the argument that Department of Health Circular 9 of 1990 entitled “Disciplinary Procedures for Hospital and Community and Dental Staff” formed part of his contract of employment with the Defendant and as such gave rise to an express right to legal representation. The particulars of claim were amended to reflect that concession. That however formed a prominent and significant part of the application presented to Dobbs J. and was reflected in her judgment in these terms:
“The argument in brief on behalf of the Claimant is that the doctor is entitled to the protection of a document called HC(90)9 which sets out in express terms that the Claimant is entitled at a disciplinary hearing to have legal representation. Reliance is placed on the case Skidmore v Dartford and Gravesham National Health Trust (2003) ICR 721, a House of Lords case, which indicated that HC 90(9) forms part of a doctor’s contract of employment. In 2005 HC90(9) is said to have been withdrawn and trusts were required to implement the 2005 Maintaining High Professional Standards directive which, in its guidance in part 3 on the conduct of hearings and disciplinary proceedings, sets out the issues of representation but does not provide for such explicit legal representation as was in HC(90)9. It is argued that in fact, this particular Trust, although it purports to have included the Maintaining High Professional Standards framework into its procedures, has not done so and therefore it is argued HC(90)9 still applies in this particular practitioner’s case. ”
[14]There are further aspects affecting the hearing before Dobbs J. When the Defendant raised the question with the Claimant’s representatives after the hearing as to why the Defendant’s own procedures which had been supplied to Mrs Davies at an earlier stage had not in any way formed part of the material put before Dobbs J., the response from the Claimant’s solicitors was that the material was not to hand. It is clear from the correspondence that the point about HC(90)9 was only raised at a very late stage and that made it even more important that full disclosure was made of relevant documentation. The material available to the judge fell short of the full disclosure that is incumbent upon those seeking interim and more particularly without notice injunctive relief. It was in my judgment a serious default in this case and the duty to make full and frank disclosure including the obligation to draw to the court’s attention the nature and extent of any defence or response which the Defendant would put before the court and the policy document was not complied with. Although there were other aspects to the application, that default also in my judgment affected the issue of whether there was a serious issue to be tried. In addition the application was effectively without notice against a background of correspondence between the parties for some weeks and as late as the 8th February the Defendant again restated its position in a fax at 14.58. At 13.02 on 12 February notice was given to the Defendant of a hearing at 2pm. There appears to be no reason why significantly earlier notice could not have been given or the application made on notice at an earlier stage rather than at the last minute before the disciplinary hearing. In my judgment an application at the last minute was inappropriate in this case more particularly without any adequate notice to the Defendant in that the position had been well set out in correspondence over a period of weeks and there were indications from that correspondence of the acceptance by the Claimant’s representatives of the procedure proposed by the Defendant. The stance of the Defendant on legal representation had been made clear during December, having only been raised by Dr Davies on 5 December. There was in my judgment significant delay on the part of the Claimant when the respective positions of the parties had been well set out in correspondence and the application for urgent relief very shortly before the disciplinary hearing was due to take place was in my judgment inappropriate. These aspects provide a powerful case for discharge of the injunction, but I have to consider further matters in coming to a conclusion on continuing injunctive relief.[15]The basis of the claim that the Claimant is entitled to be represented by a lawyer of his choice at the proposed disciplinary hearing is that: i) The employer has a discretion under the contract of employment to permit legal representation at an internal disciplinary hearing and the implied term of mutual trust and confidence requires that the employer should not fetter that discretion through policy. ii) The term of mutual trust and confidence which is implied in every contract of employment and / or the implied obligation on the employer to act rationally in exercising any discretion that exists under the contract requires in the circumstances of this case such discretion be exercised in favour of the Claimant. iii) The Defendant being a public authority is required to act in a manner consistent with Article 6 of the European Convention on Human Rights which requires that in the determination of his civil rights and obligations everyone is entitled to a fair and public hearing and iv) The right to legal representation is a necessary requirement of a fair hearing under Article 6.[16]The Claimant concedes that any action for breach of an implied term of trust and confidence cannot extend to breaches that occur in effecting the determination of the employment and that an employee cannot sue in contract for damages in respect of the manner of his dismissal. On the basis that this application does not fetter or restrict the decision to dismiss, it is submitted that the duty of trust and confidence applies to the question of whether the employee should be entitled to legal representation at a disciplinary hearing. Matters highlighted as relevant to breach in relation to the decision to refuse legal representation are that: i) The allegations against the Claimant are of the utmost seriousness: ii) Should the Claimant be unable to defend the claim, he would not only stand to lose his employment with the Trust but also any prospect of future employment within the NHS or within his profession by reason of the seriousness of the charges; iii) The Claimant cannot fairly and reasonably be expected to present his own defence in order to refute the allegations iv) The Claimant’s defence requires detailed cross examination of the complainant on whose evidence the whole case against him turns. This simply cannot be done effectively and without legal representation. v) There are potentially complex legal arguments to be addressed including but not restricted to the appropriate burden and standard of proof.[17]The Defendant acknowledges in response that the charges are serious but points out that many other employees face similar quasi criminal charges without demanding legal representation and such must have been envisaged when the provisions of sections 10 to 12 of the Employment Relations Act 1999 were drafted relating to the right to accompany. The issue it is submitted is not complex but straight forward namely whether the Claimant is guilty of improperly touching the patient. Nor will he be unrepresented in that he has an experienced and qualified representative. Doubts were expressed about Dr. Davies’ legal qualifications. It appears that she has in addition to her medical qualifications a masters degree in law and ethics. The standard of proof is the civil standard and there is no great number of documents. As to the breach of the suggested implied term, the Claimant relies on the correspondence to suggest that the Defendant has not exercised its discretion to consider whether in the circumstances of the case the Claimant should be permitted legal representation. That failure is itself suggested to be a breach of the implied term of trust and confidence. The Defendant contends that an implied term of entitlement to legal representation cannot displace the express provisions of a policy which in the case of MHPS and the Defendant’s own policy mirror the statutory right to be accompanied set out in sections 10 -12 of the 1999 Act. The Defendant also relies on the course of events leading to the procedural changes and the reasons for those changes including the unsatisfactory nature of the old procedures leading to delay and lengthy suspension and the impact of the Employment Relations Act 1999 introducing the new statutory right to be accompanied for all employees. The fact that these procedures were negotiated and agreed by the respective parties in my judgment is relevant to the question of the fairness of those procedures. The Claimant submits that the disciplinary proceedings in the instant case involve a determination of civil rights and it is accepted that there is distinction between disciplinary proceedings before a body with the statutory power to remove or suspend a doctor’s right to practice and on the other hand disciplinary proceedings before an employer with contractual power to terminate a practitioner’s employment and no more. It is submitted in a case like the present it is a distinction without a difference, and that Article 6 therefore does apply to the Claimant in the circumstances in which he finds himself. Whilst it is accepted that legal representation in internal proceedings is not a universal right it is submitted that it is a necessary entitlement in appropriate circumstances. The Claimant relies on R v Board Visitors of HM Prison (the Maze) ex parte Hone 1988 1 AC379 where in an application for judicial review it was held that the applicants who were charged with breach of prison discipline and were refused legal representation before the board of visitors were not entitled as a matter of natural justice to legal representation as of right in every case concerning a disciplinary charge, everything depended on the circumstances of the case. Further in R v Secretary of State for the Home Department ex parte Tarrant (1985) 1 QB 251 it was held that where the applicants had been charged with offences against prison discipline and been refused legal representation before the board of visitors although a prisoner was not entitled to legal representation as of right the board of visitors had a discretion to permit the same and had erred in law in considering they had no such discretion. There is no rule or decision of the common law which limits the power of the board of visitors to be master of their own proceedings so as to deprive them of a discretion which must be inherent in that power to permit legal representation (page 278f). Further in considering whether discretion should be exercised to allow legal representation the following factors were identified: i) The seriousness of the charge and of the potential penalty ii) Whether any points of law are likely to arise. iii) The capacity of the person accused to present his own case. iv) The procedural difficulties including the difficulties some individuals may have in cross examination. v) The need for reasonable speed in adjudication. vi) The need for fairness as between prisoners and prison officers.[18]The Claimant further relies on R v Knowsley NHS PCT and Others ex parte Dr SS and Anr (2006) EWHC 26 (Admin) where it was said that in determining whether legal representation should be permitted “The fundamental question is whether the doctor could fairly be expected to represent himself.”[19]It is submitted that having regard to the matters set out, the Claimant cannot fairly and reasonably be expected to represent himself in order properly to present his case. The Defendant points out that in Enderby Town Football Club v Football Association (1971) 1 All ER 215 it was held that where there is no rule there was an absolute discretion as to whether to admit representation. The court left open the question of whether an express rule could exclude legal representation. Counsel in that case conceded that if an exclusion rule was contrary to natural justice it would be invalid but the Defendant contends that the exclusion of lawyers at this stage of the disciplinary process in this instance is not contrary to natural justice. Alternatively, it is submitted that implying a term to permit legal representation as part of trust and confidence is not necessary in the sense set out in the authorities (The Aramis (1989) 1 Lloyds Law Reports 213, Baird Textile Holdings v Marks and Spencer plc (2001) EWCA (Civ) 274. Furthermore, the Defendant submits that the granting of an injunction to restrain a breach of the implied term of trust and confidence is very exceptional in that there is no case on natural justice in the employment context dealing with a positive right to legal representation or a discretion to permit it. It is accepted on the Defendant’s behalf that in some of the cases representation is considered but the minimal nature of the procedural safeguard it is submitted is illustrated in Khanum v Mid Glamorgan Area Health Authority (1978) IRLR 215 in which Bristow J held:
“…..in our judgment as regards the sort of domestic tribunal with which we are concerned in this case the law is as it was expressed by Harman J in Byrne v Kinematograph Renters Society Ltd (1958) 1 WLR 762 at 784 and approved and applied by the Privy Council to the context of the University Vice-Chancellor’s inquiry in to cheating in examinations in Ceylon University v Fernando (1960) 1 WLR 223: ‘What then are the requirements of natural justice in a case of this kind? First I think that the person accused should know the nature of the accusation made; secondly that he should be given an opportunity to state his case; and thirdly of course the tribunal should act in good faith. I do not myself think that there is really anything more.’ If you apply the law as so expressed to the proceeding of the domestic disciplinary inquiry at both levels in this case each of the three requirements was amply fulfilled. We would think it right to add it would be surprising to find that a hearing conducted, as an appeals panel hearing was expressly conducted, in accordance with agreed draft Whitley Council procedures turned out to be conducted in breach of the rules of natural justice. ”
[20]In my judgment it is important to have regard to the reasons for the introduction of MHPS (and in its wake the Defendant’s policy) relating to disciplinary hearings and the fact that the new procedures were the subject of negotiation by the professional bodies concerned including the BMA against a background of considerable dissatisfaction with the unsatisfactory nature of the old procedures and a necessity to introduce procedures reflecting the new statutory right to be accompanied. In my judgment considering both the background that I have indicated and the circumstances of this case I do not consider that the exclusion of legal representation was in breach of natural justice and I further conclude that in the light of the express term there is no room for the insertion or addition of an implied term to permit legal representation as part of trust and confidence in the circumstances of this case. Alternatively, in my judgment if there was such a term, it has not been demonstrated that the refusal to allow legal representation on the basis that there were no exceptional reasons in this case to justify departure from the laid down procedure was unreasonable or unfair.[21]The Claimant categorises the implied term to exercise contractual discretion reasonably and rationally within the context of a contract of employment as essentially another aspect of the implied obligation to maintain trust and confidence. The case of Keen v Commerzbank AG (2007) ICR 623 related to discretionary bonuses. It was said in that case that the burden of establishing that no rational bank would have paid a bonus of less than the line manager recommended was a very high one. “It would require an overwhelming case to persuade the court to find that the level of a discretionary bonus payment was irrational or perverse in an area where so much must depend on the discretionary judgment of the bank in fluctuating market and labour conditions.”[22]It is submitted on behalf of the Defendant that the burden of showing that no rational employer would deny the right to legal representation is one in respect of which the Claimant must show an overwhelming case and it is submitted he has not done so. The Defendant points out that when first asked whether legal representation would be allowed the material furnished by Dr Davies was scant and when told of the policy there was no dissent. At a later stage when the matter was raised again Ms Wilkinson indicated that the circumstances were not so exceptional as to require the facility of legal representation. Again, having regard to all the circumstances I conclude that the Claimant has not demonstrated that the refusal to permit legal representation was either irrational or unreasonable and if I am wrong about the question of an implied term of trust and confidence and a discretion in the Defendant to permit legal representation I conclude that the Claimant has not demonstrated that the Defendant either failed to exercise such a discretion or exercised it irrationally or unreasonably.[23]The Claimant further asserts that Article 6 (1) of the European Convention is engaged in the circumstances in which the Claimant finds himself and submits further that whilst legal representation in internal proceedings is not a universal right it is a necessary entitlement in appropriate circumstances. The Defendant on the other hand submits that there is no right to legal representation in a civil case, alternatively that if there is the place where that right is engaged is at the level of the GMC or the Employment Tribunal and in any event if there is a right depending on the circumstances, this case is not one in which it should be permitted. Even assuming that Article 6 is engaged in the circumstances of this case at the level of the disciplinary hearing, it is clear that both the GMC and any employment tribunal will provide the guarantees of Article 6(1). In R (on the application of Alconbury Developments Ltd) v SSETR (2001) UK HL 23 the House of Lords held that where there is a review of a decision by a court, there is a constant line of authority of the European Court where regard has to be paid to both stages of the process. Even where “jurisdictional organs of professional associations” are set up:
“None the less in such circumstances the Convention calls for at least one of the two following systems: either the jurisdictional organs themselves comply with the requirements of Article 6(1), or they do not so comply but are subject to subsequent control by a judicial body which has full jurisdiction and does provide the guarantees of Article 6(1)”
[24]In my judgment in the circumstances of this case it is doubtful that Article 6 is engaged at the disciplinary hearing level, [see Albert Le Compte v Belguim (1983) EHRR 533] but even on the assumption that it is the point made by the Defendant is in my judgment well founded, namely that having regard to the convention compliant nature of the GMC and the Employment Tribunal that there is no violation of Article 6 in the circumstances of this case.[25]Finally the Claimant seeks to restrain the Defendants from including in the bundle of documents prepared for the proposed internal disciplinary hearing material about the trial of the Claimant at Swindon Crown Court in November 2006 at which he was acquitted. That related to an incident alleged to have occurred in the course of the Claimant’s employment with a previous employer. It is submitted that the admission of such evidence before the disciplinary tribunal is a further breach of the implied term of trust and confidence and or an irrational exercise of a contractual discretion and or in breach of Article 6 more particularly if the allegation giving rise to the original charge is to be taken into account. In order for there to be a fair trial in accordance with Article, 6, it is suggested that witnesses to those allegations should be called and tendered for cross examination in order to establish the truth of the allegation. The Defendant has made no attempt to call such witnesses or tender any evidence other than hearsay evidence in relation to the allegation. It is suggested that such use of hearsay evidence may create unfairness. The Defendant expresses surprise at the inclusion of this aspect of the claim, suggesting that the logical conclusion is that in all domestic proceedings there will be a requirement for the High Court to micro manage such proceedings. The Defendant submits that there is no legal basis for the exclusion of evidence in domestic proceedings by way of injunctive relief in the High Court. In my judgment this aspect of the claim is misconceived. Temporary or permanent injunctive relief in the High Court is in my judgment an inappropriate vehicle for the management of internal proceedings by way of inclusion or exclusion of aspects of the evidence. Even if the evidence on the face of it appeared to be irrelevant and inadmissible, the High Court is not in my judgment the appropriate forum in advance of the proceedings for the resolution of such an issue. But in any event even if I concluded that there was power to intervene in this case in relation to aspects of the evidence, I would not grant injunctive relief to prevent the evidence being presented to the tribunal because it is not in my judgment clearly irrelevant or inadmissible. On the contrary there is a clear basis on which the fact of the complaint, trial and acquittal as distinct from the truth of the complaint may well be relevant and admissible, namely on the issue of why the Claimant previously accused of a similar incident albeit subsequently acquitted should, according to the Defendant (but an allegation denied by the Claimant), choose to perform an intimate examination of a patient without a chaperone . Accordingly even if there was clear power to do so, I would in any event decline injunctive relief to restrain the Defendant from adducing such evidence.[26]In the result I conclude that there is no basis on which I should continue the injunctive relief granted by Dobbs J by making the injunction permanent and the interim injunction of 12 February 2008 is discharged. The application for declaratory relief is refused.

Cited in 1 later judgment