Kunal Kulkarni -v- Milton Keynes
Hospital NHS Trust [2008] EWHC 1861
(QB)
This case considered a number of matters which are not
strictly relevant in regulatory proceedings. However, one of the
issues considered by the court was whether it is appropriate for a
Trust to have regard to historical matters of complaint, when
considering current allegations, as part of a disciplinary
investigation procedure.
The case involved an application by Dr Kulkarni for an extension
of an interim injunction. Dr Kulkarni sought a declaration that the
defendant NHS Trust was in breach of contract in following the
disciplinary procedure 'Maintaining high professional standards in
modern NHS'. Dr Kulkarni sought a declaration that he should be
allowed legal representation and a further order preventing the
Trust from referring to an earlier allegation against him for which
he was criminally charged, and subsequently acquitted.
Dr Kulkarni was employed by the Trust on 31 July 2007 in the
capacity of a foundation year one house officer. As part of the
recruitment process he was required to complete a criminal records
bureau check. The check showed that Dr Kulkarni had been accused of
sexual assault on a patient whilst in earlier employment, but
acquitted at trial. Dr Kulkarni disclosed the previous matter on
his application form in approximately July 2007.
On 24 August 2007, a patient made a complaint that Dr Kulkarni
had examined her inappropriately, by placing a stethoscope under
her knickers without her permission. Dr Kulkarni was excluded with
immediate effect pending investigation.
During the course of the investigation, Dr Kulkarni was advised
that the Trust would be contacting his previous employers in order
to obtain the necessary information in respect of the previous
complaint. As the investigation progressed, Dr Kulkarni was further
informed that the previous matter would be taken into consideration
in dealing with the recent allegation at the disciplinary hearing.
Dr Kulkarni (through his Medical Protection Society representative)
objected to the previous matter being considered. The concerns
raised included the risk of inaccurate information being taken into
account. It was argued that such previous matters should only be
used in considering the appropriate sanction. The Trust informed Dr
Kulkarni that they considered the previous complaint to be relevant
and therefore reference would be made to the incident during the
course of the disciplinary proceedings.
Dr Kulkarni sought an injunction from the High Court in respect
of his right to legal representation at the disciplinary hearing.
The injunction was granted.
In considering the application for an extension of the
injunction and further order preventing reliance on the historical
complaint, the court found that Dr Kulkarni was not entitled to
legal representation during the course of the disciplinary hearing.
In respect of the previous allegation of sexual assault, Mr Justice
Penry-Davey stated that the High Court was not the appropriate
forum for seeking resolution of such an issue. In any event, he
concluded that even if there was power to intervene in this case in
relation to aspects of the evidence, he would not grant injunctive
relief to prevent the evidence being presented to the tribunal
because such material was relevant and admissible. There was a
clear basis upon which the fact of the complaint, trial and
acquittal as distinct from the truth of the complaint, may be
relevant and admissible, namely, on the issue of why Dr Kulkarni,
if previously accused of a similar incident (albeit subsequently
acquitted) chose to perform an intimate examination of a patient
without a chaperone.
commentary
Whilst the issue relating to the previous allegation was
considered as more of a side issue, the comments made by Mr Justice
Penry-Davey may nevertheless be helpful in respect of arguments in
favour of widening the scope of material which Fitness to Practise
Committees may take into consideration, both at impairment and
sanction stage.
Teresa Murphy is a barrister in Blake Lapthorn's Professional
Regulatory team. Please contact her on 0207 814 5403, or email her
at teresa.murphy@bllaw.co.uk
-------------
To read other articles in the latest edition of the Professional
Regulatory ebulletin or view/download the bulletin in its
entirety, click on the links in the right-hand margin at the top of
the page.
|