Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) is a useful case looking at the extent to which Article 6 rights under the European Convention on Human Rights will be engaged in NHS disciplinary procedures. It concerns a consultant dismissed for misconduct by the Chief Executive of the Trust he worked for, who appealed unsuccessfully against his dismissal to an external appeal panel. The reasons for dismissal included refusing to agree to a “re-skilling” plan of action proposed by the NHS Trust employing him after a long period of suspension (five years!).
Dr Mattu challenged the dismissal, saying that it had an impact on this ability to practice as a doctor, and so he had a right to have his dismissal considered by an impartial and independent tribunal under the Convention. He failed.
Lord Justice Stanley Burnton identified the issues concerning the overlap between Article 6 and employment aspects as follows:
However, in any event in my judgment the question of the applicability of Article 6 cannot depend on whether in fact a doctor or other professional can obtain work in his field as a result of his dismissal by an employer. Article 6 is concerned with legal rights and obligations. Its application cannot vary depending on the particular facts of each case. If that were so, Article 6 would not apply to the dismissal of an eminent consultant, who would be snapped up by any other NHS Trust, or who could engage in private practice, but would apply to a junior doctor at a time of a surplus of doctors of his seniority to the vacancies available. What about a similar junior doctor facing the same allegation at a time when there is a shortage of doctors at his level, and he could easily find alternative employment? Must his employer investigate his employment prospects in order to decide whether Article 6 is engaged? As Sedley LJ mentioned in the course of argument, during the course of a disciplinary procedure relating to an allegation of apparently minor importance against a doctor, such as bad time-keeping, it might emerge that his bad time keeping was a symptom of a serious drug dependency, so that dismissal would become a potential outcome. Would the disciplinary procedure change from not engaging Article 6 to engaging Article 6 when that evidence emerged? What is the test for deciding that the new evidence brings Article 6 into play? Is the converse true? In the course of a disciplinary hearing in which serious allegations are made, it becomes apparent/arguable/possible that they are not made out, although some misconduct, not amounting to gross misconduct, remains in issue. Does Article 6 cease to apply?
The Court of Appeal considered that this was a pure employment dispute, and it had no impact on his right to practice as a doctor; even if he would have difficulties finding work within the NHS, (and it was not accepted that this had been shown) he had the option to go into private practice. Further, the court thought it would be wrong for the question of whether Article 6 applied to require an investigation of a claimant’s job prospects. The situation was quite different to that in Kulkarni v Milton Keynes Hospital NHS Foundation Trust CA 2009, where a junior doctor would not be able to acquire a qualification as a result of the outcome of a disciplinary process, so that there was a clear impact on his ability to practice. That said, the majority of the Court doubted whether Kulkarniitself established a sound principle.
Although not required for the decision, the Court did express the view that, had Article 6 been engaged, the Chief Executive of the Trust would not satisfy the requirement for an independent and impartial tribunal, and nor would the Appeal panel, if it relied wholly on findings of fact by the Chief Executive.
