Doctor’s Dismissal and Right to a Fair Trial

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The High Court has rejected a doctor’s claim that his dismissal was a determination of his civil rights thus entitling him to an independent and impartial tribunal under Article 6? Mattu v University Hospitals Coventry and Warwickshire NHS Trust.

By an agreement made in writing on 3 February 1998[1] Dr Raj Mattu, the Claimant, was employed by the Defendant, the University Hospitals of Coventry and Warwickshire NHS Trust, as a consultant in non-invasive cardiology and general medicine. Mr John Hendy QC on behalf of Dr Mattu argued that important procedural safeguards incorporated, into the agreement were not met enabling the Judge, although not concerned with the underlying merits of the matter, to set aside the dismissal.

Dr Mattu was on sick leave for at least a year from September 2006 and as a result disciplinary proceedings were commenced. The upshot of the disciplinary proceedings was that by a letter dated 15 April 2008 Dr Mattu was given a first warning to last for six months and backdated to 1 January 2008.

Dr Mattu decided to return to work whereupon he was asked to re-skill. Accordingly, reskilling was arranged for Dr Mattu but, unhappily, it is this process which led to Dr Mattu’s dismissal in November 2010. In short the parties fell out over the question of reskilling and Dr Mattu declined to sign an action plan in connection with the provision of reskilling. He thought that reskilling should have an additional six months connected to research with the possibility that such six months be spent in the United States of America.

Dr Mattu was dismissed principally for not complying with the re-skilling procedure. Following the dismissal a number of things happened. First, an appeal was made against the dismissal to a panel appointed by the Trust, which panel is empowered to review the dismissal proceedings. That panel met on 9 May 2011 and 13 May 2011. It stands adjourned until 20 September 2011. Second, Dr Mattu has initiated proceedings in an employment tribunal for unfair dismissal, race discrimination, disability discrimination and, what is informally called, whistle blower discrimination. More formally the last mentioned is protective disclosure.

Perhaps, most interestingly, a distinct case was also maintained on the basis of the Human Rights Act 1998. It was said, uncontroversially, that the Trust is a public authority within the Act. Further, it was argued that the process by which Dr Mattu was dismissed and his appeal from it constituted a determination of a civil right possessed by Dr Mattu so as to provide him with the protection given by article 6 of the European Convention on Human Rights as scheduled to the 1998 Act.

High Court proceedings were commenced.

The Trust is a public body to which the Human Rights Act 1998 applies. By article 6 of the European Convention on Human Rights as scheduled to the Human Rights Act 1998 Dr Mattu is entitled in the determination of his civil rights to a hearing before an independent and impartial tribunal. Mr Hendy argued that his dismissal by a public body such as the Trust, which is, in turn, part of the National Health Service, is equivalent to being struck off the medical register and barred from practice in the National Health Service. Consequently, it was argued that the Trust were determining Dr Mattu’s civil rights so as to entitle him to an independent and impartial tribunal, which, it is said, he did not enjoy as Mr Hardy cannot be said to be independent of the Trust of which he is chief executive.

The crux of the matter was referred to by Blair J in a case called R (oao Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 270 (Admin) accepted that a person’s right to practise his profession was a civil right for the purposes of article 6. He recorded (paragraph 21) that it was not in dispute but that a person’s right to practise his profession was a civil right for the purpose of Article 6. This is not the same, he said, as that person’s right to remain in his current employment.

Thus, The Court disagreed, holding that GMC proceedings would not be affected, and that he could still practise privately, or elsewhere within the NHS. At worst, the Claimant’s ability to remain in his current employment was affected. But unlike the right to practise one’s profession, doing a particular job is not a civil right, and is not protected by Article 6.

Mr Hendy argues that article 6 is also engaged when an individual’s civil right to enjoy a good professional reputation is determined but this was also rejected by Timothy Straker QC (sitting as a Deputy High Court Judge)

‘I do not doubt that such dismissal could be described as a blot on Dr Mattu’s copy book but I do not consider that Mr Hardy was determining Dr Mattu’s reputation.’

The judgment is useful for anyone wanting to know more about the application of Article 6 on public bodies as employers.

NB Interesting similar cases are considered in this judgment such as: Kulkarni v. Milton Keynes Hospital NHS Trust [2010] 1CR 101