Capital Law helps the BMA to secure victory in High Court

The judgment quashed the changes which gave the UK Secretary of State for Health & Social Care the power to potentially suspend the payment of pensions benefits to any doctor or NHS professional charged with certain criminal offences – but not yet convicted.

It’s a big win for the BMA, its members and all professionals under the NHS Pension Scheme in England and Wales. It’s also a strong start to the year for our Public Law & Regulatory team which, alongside 39 Essex Chambers, brought the judicial review on behalf of the BMA.

The High Court agreed with the arguments advanced that the new regulations breached:

• Article 14 (protection from discrimination) in conjunction with Article 1 Protocol 1 (right to peaceful enjoyment of property) to the European Convention on Human Rights (ECHR)
• Article 6 (right to a fair trial) ECHR
• the Public Sector Equality Duty under the Equality Act 2010 (in failing to have regard to the equality implications of the changes).

The Hon. Mrs Justice Andrews added the Government had failed to draw a distinction between someone charged with a crime and someone convicted of a crime, despite the fundamental principle in law being that ‘every defendant to a criminal charge, however serious, and however compelling the evidence against him may appear, is presumed innocent until proved guilty to the criminal standard’.

Nicola Mead-Batten, Partner at Capital Law, said:

“We’re so pleased to have helped the BMA achieve this important victory for its members and for professionals across the NHS. Our strong feeling is that common sense has prevailed – and the presumption of innocence until proven guilty preserved in the context of public sector pension schemes”

Gareth Williams, Interim Director of Legal Services at the BMA, said:

“This represents a significant win, not just for the fundamental human rights of our members, which would have been prejudiced by the reversal of the presumption of innocence when subject to unproven allegations of criminal misconduct, but also for their dependents – who, through no fault of their own, stood to have their financial security removed from them on a ministerial whim. We welcome this victory for common sense and the restoration of our members fundamental rights.”