Calum MacNeill QC represents health board employer in ‘legal representation’ judicial review

Calum MacNeill QC

Westwater Advocates’ Calum MacNeill QC represented Fife Health Board in defending an application to the Court of Session for judicial review of its decision not to allow an orthodontic nurse to be legally represented at a disciplinary hearing and appeal.

Nurse Susan Dryburgh had been accused of behaving in an offensive manner at work and was refused permission to have legal representation during the resulting disciplinary procedures. She sought judicial review of that decision and an order that she should be allowed to have a solicitor represent her but in a 14-page judgement delivered yesterday Lord Burns refused to intervene.

The judge’s opinion was that the supervisory jurisdiction of the court did not extend to what was essentially a bilateral dispute between employer and employee. Furthermore, he accepted that article 6 of ECHR, the right to a fair hearing, was not engaged even when the result of the disciplinary proceedings could have the practical effect of preventing the employee from practising her chosen profession, declining to follow obiter comments by Lady Justice Smith to the contrary effect in the Court of Appeal decision of Kulkarni v Milton Keynes Hospital NHS Foundation Trust.

He also accepted that proceedings before the General Dental Council which could result in her registration being suspended were sufficiently independent that the outcome of the employers’ process would not have “a substantial influence or effect” on the outcome of the practice committee, applying the Supreme Court decision in R(G) v Governors of X School.

The petitioner was represented by Ken McGuire, also of Westwater Advocates. The General Dental Council intervened and was represented by Mark Lindsay QC.