FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord President
Lord Osborne
Lord Hardie
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[2009] CSIH 10
XA2/07
OPINION OF THE COURT
delivered by LORD HARDIE
in the Appeal
under the Tribunals and
Inquiries Act 1992, Section 11(7)
by
MISS MARJORIE MARTIN
Appellant;
against
An order of the Tribunal
constituted under section 29(1) of the National Health Service (Scotland) Act 1978
dated and intimated to the Appellant on 22 November
2006
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Party Appellant
For the respondent:
(Greater Glasgow Primary Care NHS
Trust): Khurana; Ranald F Macdonald, W.S.
11
February 2009
Introduction
[1] This
is an appeal under section 11(7) of the Tribunals and Inquiries Act 1992
("the 1992 Act") against an order made by the Tribunal constituted under
section 29(1) of the National Health Service (Scotland) Act 1978 ("the
1978 Act") dated and intimated to the appellant on 22 November 2006
disqualifying the appellant from inclusion in (1) the Greater Glasgow Health
Board's list of medical practitioners and ophthalmic opticians undertaking to
provide and of persons approved to assist in providing general ophthalmic
services and (2) all lists within section 29(8)(d) of the 1978 Act.
[2] The
decision of the Tribunal followed upon a hearing into representations by
Greater Glasgow Primary Care NHS Trust ("the respondents") (a) that the
appellant's continued inclusion in the ophthalmic list of the respondents would
be prejudicial to the efficiency of services which those included in the list
undertake to provide or are approved to assist in providing and (b) that the
appellant had (whether on her own or together with another) by an act or
omission caused, or risked causing, detriment to a health scheme by securing or
trying to secure for herself or another a financial or other benefit and knew
that she or (as the case may be) the other was not entitled to the benefit. The functions of the respondents are now
carried out by the Greater Glasgow Health Board. The nature of the alleged fraud by the
appellant involved a variety of different practices resulting in false and
inaccurate claims for payment. These
included claims for prisms not provided;
glasses not provided; small
frames not provided; glasses, tints and
prisms provided when not clinically necessary;
and replacement glasses within three months of issuing an original
pair. In addition it was alleged that
the appellant recalled patients on a more frequent basis than was necessary. The representations further alleged that
analysis of the appellant's records disclosed that she had in place systems to
obtain payment inappropriately from the NHS and to maximise her income. She recalled NHS patients sooner than private
patients. A drawer in the appellant's
premises was labelled "Hold Backs" and contained signed forms which were being
held back from the sight test date.
Duplicate vouchers were also found.
The appellant allegedly operated a system whereby some patients would
sign two sets of forms prior to being sight tested. One set of forms would be submitted to claim
that glasses had been issued while the other would be retained to be submitted
six months later when no additional service had been provided to the
patient. In the case of children the
appellant allegedly retained repair and replacement vouchers to be submitted
after three months, but there was no evidence that the children had been
provided with a replacement pair of glasses.
Grounds of appeal
[3] In
support of the appeal the appellant lodged the following grounds:
"(1) The hearing before the Tribunal did not
afford the Appellant a fair hearing before an independent tribunal established
by law and is incompatible with the Appellant's Convention Rights contrary to
the Human Rights Act 1998 section 6 and Schedule 1, Part I,
Article 6(1) et separatim did
not per se constitute sufficient
guarantee of the Appellant's Convention Rights in respect that the complainer
had full legal advice and representation by counsel before the Tribunal whereas
the Appellant in the absence of Legal Aid which is not available for hearings
of this nature and to her prejudice did not;
(2) The Order of the Tribunal is incompatible with the Appellant's
Convention Rights contrary to the Human Rights Act 1998, section 6 and
Schedule 1, Part II, 1st Protocol, Article 1."
The appellant's
submissions
[4] The appellant submitted that as she
appeared at the Tribunal on her own without legal representation she had been
unable to present her case effectively due to the lack of representation. The appellant stated that she had not given
evidence before the Tribunal because she was very stressed at the end of eight
days of evidence, having been through twelve weeks of a criminal trial which
related to similar but different allegations of fraud. She had been unclear why the schedule
presented by the respondents was different from the schedule in the criminal
trial and she was unsure if another criminal trial could follow the
Tribunal. She did not wish to do anything
that would prejudice herself or anyone else.
The matters before the Tribunal had not featured in the criminal trial
which had been abandoned by the Crown before the end of the Crown case. Under reference to paragraph 187 of the
decision of the Tribunal to the effect that the appellant's conduct involved
deception in which she gained a dishonest pecuniary advantage over the respondents
and the absence of an explanation from her relating to the deceptions or
malpractices that had been mentioned in evidence, the appellant stated that she
was not sure what her lawyer would have put forward in defence to that.
[5] Although
the Tribunal records that they took the view that the appellant was astute and
intelligent and able to cross-examine witnesses with some skill, the appellant
submitted that it was unfair of the Tribunal to criticise her failure to
address the principal areas of concern in the respondents' representations and
the inaccuracies and misleading entries in patient record cards. The appellant took issue with the Tribunal's
assessment that her skills as a cross-examiner were good and suggested that her
failure to address the seminal issue of fraud indicated that she was not as
skilful as the Tribunal maintained. The
Tribunal had formed a general impression of her even although she did not give
evidence (paragraph 183). It was
not clear that the Tribunal had balanced her lack of representation in a fair
way. She had been unable to obtain legal
representation. She consulted solicitors
who approached her professional body, the Association of Optical Practitioners,
who refused to help. The reason for that
refusal was apparently because the appellant had instructed solicitors before
approaching her professional body. The
appellant had been unable to afford to pay for solicitors and Legal Aid was not
available for representation before the Tribunal. She had legal representation at her criminal
trial and immediately thereafter but there had been delays in the Tribunal
proceedings because of a change of chairman.
[6] The
National Health Service (Tribunal) (Scotland) Regulations 2004 as
amended ("the Regulations") regulate the procedure before the Tribunal. Regulation 6 is in the following terms:
"6.- Submission of
representations
(1) Subject to paragraph (4), representations shall -
(a) be made in terms of Form 1 and
shall -
(i) contain a concise statement of the alleged facts and grounds
upon which the complainer intends to rely;
(ii) be signed by the complainer or on the
complainer's behalf by some person authorised by the complainer;
(b) be accompanied by 2 copies of each document which the
complainer proposes to put in evidence;
and
(c) be sent together with the copies of the documents relevant to
it to the clerk to the Tribunal.
...
(4) If a document which the complainer proposes to put in
evidence is of a nature which renders it difficult to make or obtain a copy of
it, the complainer shall not be required to submit copies of it."
Regulation 14 provides:
"14. Power to treat
representations as withdrawn in certain cases
If the
complainer fails -
(a) without showing good cause, to appear in person or by a
representative at any inquiry of which the complainer was sent due notice under
regulation 12 (notice of inquiry);
or
(b) to comply with any other requirement of these Regulations,
the Tribunal may treat the
representations has having been withdrawn."
Regulation 32 provides:
"32. Power to dispense with
requirements as to notices
The Tribunal may dispense
with any requirements of these Regulations applicable to notices, applications,
documents or otherwise in any case where it appears to the Tribunal just and
proper to do so."
Certain forms and record cards were not provided to
the appellant with the representations and prior to December 2004 her solicitor
had requested copies. After the
conclusion of the criminal trial it was believed that certain of the documents might
be in the possession of the procurator fiscal and on 8 December
2004 documents were recovered from the procurator fiscal but none of the
record cards recovered at that time related to the representations. The appellant received the documents some
time in the autumn of 2005. The
appellant explained that prior to January 2006 she had been reading the
Regulations and had noted the terms of Regulations 6(1)(b) and 14. At a procedural hearing on 10 January 2006 the appellant raised the failure of
the respondents to produce the documents with the representations and invited the Tribunal to
treat the representations as having been withdrawn in terms of Regulation 14 by
reason of the respondents' failure to comply with Regulation 6(1)(b). In the event the Tribunal exercised its
dispensing power under Regulation 32 and repelled the appellant's
submission. Despite the respondents' earlier
omission they sought and were granted leave on the first day of the hearing of
evidence to lodge a list of witnesses and a list of additional productions
which now comprise items 2 to 10 inclusive in Appendix 13. The appellant acknowledged that there was no
obligation upon the respondents to lodge a witness list in advance of the
hearing but as a result of the procedure adopted by them she had no opportunity
to precognosce the witnesses because she was at the inquiry all day. She presumed that, if she had been legally
represented, her solicitor could have asked for a list of witnesses in advance
of the hearing. In retrospect she could
have asked for an adjournment. The
appellant explained that when the DVD (Production 1 in Appendix 13)
was sent to her, no mention was made of the fact that it contained copies of
the payment schedules. The payment
schedules were not sent to her as paper productions and she had no means of
checking the DVD prior to the hearing.
She could not check whether the payments had been made. Her diaries were not lodged until the first
day and she could not check their entries.
When the appellant was referred to paragraph 22 of the Tribunal's
decision to the effect that the payment schedules mirrored the actual receipts
received in her bank account, she stated that she did not check individual
payments. She alleged that there was an
element of bad faith and procedural unfairness in the Tribunal allowing
productions to be lodged on the first day of the hearing, particularly as she
had complained in January about productions having been lodged late. The period between October 2005 and the first
day of the hearing on 2 May 2006 had been sufficient time
for her to consider the productions lodged in October but the respondents should
not have been permitted to lodge others.
The productions that were lodged on the first day of the hearing were
used frequently in evidence. The
practice diaries for the years 1998, 2000 and 2001 were the appointment diaries
for those years. The lens order books
contained entries made by the receptionist at the practice as did the NHS book
(otherwise known as the Beaumont Book) which listed patients and claims made on
their behalf. In allowing these
additional productions the Tribunal had shown no appreciation of the difficulty
facing the appellant as a party litigant at the Tribunal. The appellant had attempted to object to the
production of patient record cards on the grounds that this was in breach of
the Data Protection Act 1998 but that had simply resulted in an outburst from
the chairman of the Tribunal. The
absence of legal representation had resulted in unfairness. The appellant had been prejudiced in the
presentation of her case before the Tribunal.
Although the Tribunal had refused a late Minute of Amendment on behalf
of the respondents seeking to introduce a second schedule of alleged fraudulent
claims, it had allowed the list of witnesses to be lodged even although these
witnesses related to the additional schedule.
[7] The
appellant further submitted that the Tribunal was critical of the appellant's
cross-examination of witnesses (paragraphs 111, 116 and 139) and decided
to form a general impression of her, although she did not give evidence
(paragraph 183). The reason for the
Tribunal doing that was unclear. The
Tribunal accepted the submission by counsel for the respondents that no witness
was challenged in any effective way. This
was unsurprising because she was not represented. There was no indication that the Tribunal had
balanced her lack of representation to achieve fairness. In summary the appellant submitted that there
had been errors in procedural matters as well as substantive matters as a
result of which she had been disadvantaged by not being legally represented.
[8] In relation
to the second ground of appeal the appellant confirmed that this was not a
separate issue but rather a consequential effect of the decision on the first
issue.
Respondents' submissions
[9] Counsel for the respondents invited us
to refuse the appeal. He set out the
statutory framework within which the Tribunal operated. Section 29 of the 1978 Act as amended
contained the relevant provisions. Where
the Tribunal receives representations from a Health Board that a person
included in any list meets any of the conditions for disqualification, the
Tribunal must inquire into the case (section 29(2)(b)). The appellant is a person included in such a
list. The respondents rely upon
section 29(6) and 29(7) as reasons for disqualification in this case. Section 29(11) describes cases brought
under section 29(6) as efficiency cases and cases brought under
section 29(7) as fraud cases. The
powers of the Tribunal are contained in section 29B. These include the power to disqualify the
appellant from inclusion in the west of Scotland list and all lists
applying to the rest of Scotland
(section 29B(2)). Section 29B(4)
requires the Tribunal not to disqualify a person under that section if they are
of the opinion that it would be unjust to do so. The relevant regulations are the Regulations which
came into force on 4 March 2004.
[10] In her
grounds of appeal the appellant took no issue with the Tribunal's primary
findings in fact, nor with its conclusions that the appellant met the first and
second conditions for disqualification (section 29(6) and (7) of the 1978
Act). Instead the appellant contended
that the lack of legal representation prevented specific matters going down
some unspecified route. Counsel for the
respondents submitted that it was not appropriate to look at the question of
fairness in isolation. However he
accepted that if the court concluded that there had been unfairness which could
not be rectified the court should favour the appellant. He also accepted that the decision of the
Tribunal could not be sustained if the court found that the proceedings had
been unfair in terms of Article 6 but he submitted that, before the court
could reach such a conclusion, the court would require to take into account a
whole range of circumstances, including the non-availability of legal
representation. The appellant was
maintaining that the proceedings were unfair because she did not have legal
representation but she could not point to specific matters which might have
been different if she had had such representation. Despite the appellant's concession that she
was not asserting that the absence of legal representation of itself is an
infringement of her Article 6 rights, that is the effect of her submissions
when they are analysed.
[11] Counsel
for the respondents submitted that the test to be applied in relation to
Article 6(1) was whether, in the particular circumstances of the case, it
could be said that the provision of legal representation to the appellant had
been indispensable due to the complexity of the case (Sutherland-Fisher v The Law
Society of Scotland 2003 S.C. 562 adopting the approach in Airey v Ireland (1979) 2 EHRR 305.) There were striking similarities between the
present case and Sutherland-Fisher v The Law Society of Scotland. In that case, although the petitioner
admitted one complaint relating to his failure to comply with solicitors'
accounts rules, the second complaint denied by him related to allegations of
criminal activity. These had been the subject
of a criminal trial that had resulted in the acquittal of the petitioner. At that trial the petitioner was represented
by counsel.
[12] The
appellant had been subject to the recovery of her records in 2001 following
investigations by the Counter-Fraud Service.
The case had been reported to the procurator fiscal and a decision taken
to prosecute the appellant. There had
been a passage of time to allow the appellant to prepare her defence and the
trial commenced in 2004. At that stage
the respondents submitted their representations against the appellant to the
Tribunal in respect of matters not covered by the criminal prosecution. The appellant was legally represented at that
stage and her solicitor successfully argued on her behalf that it would be
oppressive for the proceedings before the Tribunal to continue as long as the
criminal proceedings were underway. The
Tribunal sustained those submissions and granted an adjournment of the
proceedings before it. After the
acquittal of the appellant of the criminal charges the respondents sought to
submit further representations in respect of matters that had been the subject
of the criminal prosecution. Productions
in the criminal case were of direct relevance to both representations. For example lens order books, diaries and payment
schedules related to both issues, whereas the only matters specific to
particular representations were the patient records and claim forms in respect
of patients specified in those representations.
When the appellant had the benefit of legal representation her
solicitors wrote to the Tribunal on 22 November
2005 confirming that the appellant did not intend to issue specific answers
to the representations made by the respondents, although the appellant did not
accept any of the findings specified in these representations. In effect, the appellant was requiring the respondents
to prove their case. In the course of
her submissions the appellant had failed to advise the court of the nature of
her defence despite being given an opportunity to do so. The nature of the evidence related to
practices within the appellant's business.
For example, patient record cards recorded numerous attendances by
patients at stages where there would not normally be more than one attendance. An expert witness testified that he could not
explain such attendances other than as part of a fraudulent scheme. The receptionist employed by the appellant
gave evidence about the fraudulent scheme.
There were various different ways in which the fraud had been
perpetrated. The only person who could
address that evidence was the appellant.
In the context of allegations of fraud, limited defences were available,
such as mistake or the appellant's lack of knowledge of the fraud. A lawyer acting on behalf of the appellant
could not advance any case in answer to allegations of fraud without the
appellant's instructions. The appellant
was able to advance matters before the Tribunal where there were matters to be
raised. In the course of her
cross-examination of witnesses the appellant raised certain matters, although
she did not lead direct evidence about them.
Both the Tribunal and counsel for the respondents clarified matters
raised by the appellant in cross-examination.
This had resulted in the Tribunal concluding that issues raised in the
respondents' representations had not been established. One example related to charges for prisms
supplied by decentration. Decentration
involved the incorporation of a prism into a lens in the appellant's workshop
after the manufacturer of the lens supplied it to her. This was contrasted in evidence with worked
prisms where the prism is incorporated into the lens at the point of
manufacture. Dr Patel, an optometrist,
was a witness at the Tribunal hearing.
It appears from the decision of the Tribunal (paragraph 148) that
initially he thought that it was only legitimate to claim for worked prisms
under the GOS Payments Regulations 1986 or 1998. However under cross-examination by the
appellant he "found some difficulty with prisms". The GOS Payments Regulations make no
reference to "worked prisms". In that
situation the Tribunal did not make an adverse finding against the appellant in
respect of her charges for prisms supplied by decentration. In her appeal she has failed to advise the
court of what matters she was unable to advance due to the absence of legal
representation. Moreover, as in Sutherland-Fisher v The Law Society of Scotland the matters at issue were not
complex. On any view, the appellant
ought to have been familiar with them.
They related to the financial intromissions of her business. The records that she kept showed that she was
concerned about such matters and kept up to date with them, particularly under
reference to the Beaumont Book.
[13] As in
the case of Sutherland-Fisher v The Law Society of Scotland the
appellant had been involved in a criminal trial relating to allegations of
fraud. She had had the benefit of legal
representation, including solicitors and senior and junior counsel. The Beaumont Book, the lens order books and
the payment schedules were common to the criminal trial and the hearing before
the Tribunal. The payment schedules were
scanned from the criminal productions on to a DVD. In the course of the trial the sheriff upheld
an objection about the payment schedules being secondary evidence because what
had been lodged were certified copies downloaded from the NHS computer. These documents were crucial to the
prosecution case and the result of the sheriff's decision was that the
appellant was acquitted. Following her
acquittal the appellant sought return of her property, although she had copies
of the various documents in her possession throughout. Despite having copies until March 2005 she
recovered the originals on 31 March 2005. Thereafter she destroyed the original monthly
payment schedules, lens orders, the Beaumont Book and diaries. Counsel submitted that it was a reasonable
inference that the intention was to defeat the decision of the Tribunal. The Beaumont Book contained a list of every
patient seen by the appellant. The
entries were supposed to be in chronological order. When a claim form was submitted in respect of
a patient, details were entered opposite the patient's name in the book and
when payment was received an entry was made to that effect. The appellant maintained such a record for
the purposes of her business. The
Beaumont Book provided the answers to questions such as which patients had
attended, which claim forms had been submitted and which payments had been
made. She could have challenged the
schedules by reference to the Beaumont Book and presumably she had given
instruction in relation to the schedules lodged in the criminal trial. Counsel accepted that the appellant did not
have patient record cards but the absence of record cards only meant that she
could not check the number of attendances claimed for each patient. However, she could check the dates of
attendances against the Beaumont Book. The
entries in the Beaumont Book kept by the appellant were not in chronological
order because part of the fraud involved holding back claim forms and
submitting them at a later date. The
receptionist who gave evidence confirmed that this was part of the way in which
the fraud was perpetrated. Counsel
submitted that this was not a complex case.
The appellant had the resources and the equipment to deal with the case
at the criminal trial. She had
sufficient time between receiving documents in November 2005 and the start of
the hearing to prepare for the hearing.
[14] In the
course of her submissions the appellant had raised a number of issues that were
not focussed in the grounds of appeal.
On one view they ought not to be before the court. The purpose identified by the appellant for
raising these issues was to illustrate her lack of legal representation. It was important to bear in mind that the
test was not whether there was a lack of representation but whether it was
indispensable. The appellant complained
about the late lodging of productions.
The rules of the Tribunal regulated the procedure before it. The Tribunal heard submissions concerning
this matter and exercised its discretion in favour of the respondents. The absence of legal representation was
irrelevant. The appellant had shown that
she had the ability to read the procedural rules, to appreciate what motion
should be made and to make appropriate submissions.
[15] At the
commencement of the hearing before the Tribunal the respondents sought to lodge
a Minute of Amendment to include a second schedule containing further alleged
fraudulent claims. These related to the
claims that had featured in the criminal proceedings. The appellant objected to the introduction of
the Minute of Amendment on the ground that it was too late and the Tribunal
found in her favour. It is clear from
paragraph 19 of the decision of the Tribunal that they considered that the
balance was a fine one, but they exercised their discretion in favour of the
appellant because she was unrepresented.
When the appellant later sought to introduce some material from the second
schedule, counsel for the respondents explained to her and to the Tribunal the
possible consequences of her doing so.
She was given advice by the Tribunal and she withdrew her motion.
[16] As for
the appellant's complaint about the late lodging of the list of witnesses,
counsel submitted that there was nothing in the Regulations requiring a party
to lodge a list of witnesses in advance of the hearing. In any event, the Tribunal considered the
matter and gave a reasoned decision. It
was clear from the representations and from the expert's report who the
witnesses would be. The appellant could
have been in no doubt that witnesses would be required. Witnesses could have been called without the respondents
lodging a list.
[17] In
relation to documentary productions the appellant's principal concern seemed to
be with the monthly payment schedules which she had destroyed. The Tribunal had ordered production of the
appellant's bank statements and they were lodged. These disclosed the monthly payments made by
the respondents to the appellant's bank.
There could be no dispute about these payments as they were made
directly to the appellant's bank from the respondents by BACS. All of these payments coincided with the monthly
payment schedules. The appellant did not
challenge evidence about these payments and it was inconceivable that such
evidence could have been challenged even if she had legal representation. The Beaumont Book kept by the appellant would
have provided the information relating to the breakdown of monthly
payments. Although that book had been
destroyed by the appellant, there were copies of the entries on the DVD.
[18] The
appellant also raised an issue about the Data Protection Act 1998 on a number
of occasions, both prior to and after the commencement of the hearing before
the Tribunal. She contended that because
documents had been recovered by virtue of a search warrant for the criminal
proceedings, they could not be used for the purposes of the hearing before the
Tribunal. She also maintained that
because the records related to particular patients, their use required the
patient's consent. Moreover, they were
considered by the appellant to be self-incriminatory. The Tribunal had given a reasoned decision in
repelling these submissions. In any
event the submissions were ill-founded.
There was an intrinsic illogicality in the appellant's complaint of
self-incrimination. The records were
kept by her in connection with her business.
As such they were not self-incriminatory.
[19] The
second ground of appeal was simply an elaboration of the first ground and
counsel submitted that it fell to be considered along with that ground.
[20] In
summary, counsel for the respondents invited us to refuse the appeal and relied
upon a number of characteristics of the appellant. She is a professional person running her own
business. She is an intelligent adult
who had shown the capacity to understand regulations and to present argument
under reference to them. She is
articulate. She had carried out
preparation for her criminal trial in relation to identical issues containing
similar schedules when she had the support of senior and junior counsel and
solicitors. Although the criminal trial
and the hearing before the Tribunal dealt with different cases, they concerned
identical issues and involved the same fraudulent system. There were no emotive or family law issues as
in the case of Airey v Ireland. The Tribunal was a less formal environment
than a court. The proceedings were held
in private and there was no media involvement or press attendance. The court could form its own view as to how
the appellant had conducted her appeal.
Appellant's response
[21] The appellant submitted that the
professional member on the Tribunal would be aware of the changes to the
regulations in 2006 and the impact that such changes would have on the
appellant's business. Her business was
located in Govanhill, a poor area of Glasgow, and the majority of her
business came from the National Health Service and the social security
scheme. Under reference to Sutherland-Fisher v The Law Society of Scotland the appellant observed that the
petitioner in that case was a solicitor and she submitted that even a solicitor
who had not practised for several years would have more familiarity with
procedure than she did. She confirmed
that the chairman of the Tribunal had told her that she could stop the
proceedings when she had objected about the payment schedules after evidence
had been led, but he did not give her advice.
In relation to the destruction of records, she stated that she did not
check with the respondents if they wished them.
Legal aid had been refused on several grounds, namely the appellant
should have approached her professional body;
the professional body had refused to help her from which it was obvious
that they provided assistance to members in appropriate cases; the issue related to a private business
matter that the Scottish Legal Aid Board should not be required to fund. Other various issues were raised, but legal
aid had not been rejected on the grounds of her financial resources as far as
the appellant was aware. The appellant
insisted that she had been prejudiced because of the late production of the
list of witnesses as she had been unable to precognosce the witnesses, whereas
the respondents had precognosced them.
With reference to the appellant's concerns about the Data Protection Act
and self-incrimination, she advised the court that the new forms prepared by
the respondents contained a disclaimer under the Data Protection Act to permit
the respondents to use such forms in proceedings. She had been more than happy to submit to the
Tribunal that she should not incriminate herself having spent several weeks in
a criminal trial.
Discussion
[22] The appellant contends that she was not
afforded a fair hearing in terms of the Human Rights Act 1998 section 6
and Schedule 1, Part I, Article 6(1) by virtue of the fact that the
respondents were represented by counsel whereas the appellant had no legal
representation. In the course of her
wide-ranging submissions, the appellant appeared to accept that it was not
sufficient for her simply to state that she did not have legal representation,
although upon analysis many of her complaints amounted to no more than
that.
[23] The
first question is what test should be applied for the purpose of considering
whether the appellant has established that her rights under Article 6(1)
were infringed by reason of the lack of legal representation before the
Tribunal. In Sutherland-Fisher v The Law
Society of Scotland at paragraph [19] the court quoted the following
passage from Airey v Ireland:
"In certain eventualities,
the possibility of appearing before a court in person, even without a lawyer's
assistance, will meet the requirements of Article 6(1); there may be occasions when such a
possibility secures adequate access even to the High Court. Indeed, much must depend on the particular
circumstances. ... Article 6(1) may sometimes compel the state to provide
for the assistance of a lawyer when such assistance proves indispensable for an
effective access to court ... by reason of the complexity of the procedure or of
the case."
Thereafter the court observed at paragraph 20:
"There is no doubt that
legal representation in cases of this nature will be regarded as an
advantage: but it does not follow that
the absence of legal representation will necessarily deprive a party of a fair
hearing. The requirements of
Article 6(1) with respect to legal advice and representation must depend
on the facts of each individual case ...
In the present case parties are agreed that the proper test to be
applied is the test of 'indispensability' and that it is for the petitioner to
demonstrate that at the tribunal hearing into the second complaint the
provision of legal representation on his behalf would be indispensable in the
sense that without such representation he would not be able to present his case
properly and effectively and thus could not receive a fair hearing ... On the basis of the Convention authorities to
which we were referred, we are satisfied that the test of indispensability is
the appropriate test to apply ...".
We respectfully agree with these observations and
confirm that the test to be applied is the test of indispensability. As is apparent from the observations in the
Opinion of the Court in Sutherland-Fisher
v The Law Society of Scotland, that
test imposes a high standard upon the appellant. She requires to satisfy us that without legal
representation she was unable to present her case properly and effectively and
thus was deprived of a fair hearing. In
determining that issue we require to consider the whole circumstances of the
case, including its nature, the nature of the appellant's defence and her
ability to represent herself effectively.
[24] The
respondents' case against the appellant included allegations of fraud committed
in a variety of ways, including claiming for charges not incurred. In the face of such an allegation, a limited
number of defences are available. These
include that the claims were not made;
that claims made were not false;
that any claims that were false were the result of genuine error; that the appellant had no knowledge of the
fraudulent scheme or that payments were not made by the respondents to the
appellant. There was no dispute that the
payments were made. Sums equivalent to
the total amount shown to be due on the monthly payment schedules were credited
by the respondents to the appellant's bank account. Equally it could not be disputed that claims
totalling such amounts had been submitted by the appellant to the respondents. There was evidence before the Tribunal from
an expert witness and from the receptionist employed by the appellant from which
the Tribunal could conclude that the claims were false. The evidence of the receptionist excluded
genuine error and imputed to the appellant the necessary guilty knowledge. The appellant did not address the seminal
issue of fraud in cross-examination or by leading evidence on her own behalf. Only the appellant could have explained the
apparent irregularities in the conduct of her business, but she elected not to
do so. Her failure to address the issue
of fraud is not surprising when one recalls that on 22
November 2005 the appellant's solicitors wrote to the clerk to the
Tribunal in the following terms:
"... we are writing to you
confirming that it is not our client's intention to issue specific answers to
the representations made by the NHS. It
is Ms Martin's position that she does not accept any of the findings of
the Greater Glasgow Primary Care NHS Trust, Scottish Ophthalmic Reference
Service or the NHSS Fraud Investigation Unit as set out within the
representations dated 18 March 2004. It is not accepted by Ms Martin that she
breached either Schedule 1 of the NHS (General Ophthalmic Services) (Scotland) Regulations 1986 as amended
or the NHS (Optical Charges and Payments) (Scotland) Regulations 1998 (as
amended)."
The import of that letter was that the appellant,
through her then solicitors, was indicating that she was putting the
respondents to the proof of their representations and that she had no
substantive defence case to advance.
That was confirmed in the appellant's submissions before us when she was
unable to advise us what the nature of her defence was to the allegation of
fraud, despite being given more than one opportunity to do so. At one point in her submissions in regard to
that matter she advised us that she was not sure what her lawyer "would have
put forward in defence to that." As was
submitted by counsel for the respondents it is not the function of solicitors
or counsel to advance a specific line of defence without instructions from the
client. In the circumstances of this case
it is clear that the availability of legal representation would not have
altered the approach adopted by the appellant of challenging in
cross-examination the witnesses adduced in support of the respondents'
representations, but not advancing a positive defence.
[25] We also
consider the nature of the proceedings to be relevant in determining whether
legal representation was indispensable.
The proceedings before the Tribunal were less formal than before a
court. They were held in private and
there was no media involvement. They did
not involve emotive or family law issues that might have affected the
appellant's ability to represent herself (Airey
v Ireland).
[26] Moreover
it appeared to us that the appellant was able to represent herself effectively.
Effective representation is not to be
equiparated with success but rather with the ability of a litigant to
understand the proceedings, cross-examine witnesses, comprehend legislative
provisions and make appropriate representations to the Tribunal. The appellant appeared to us to be an
intelligent and astute professional person who had a sound understanding of
procedure and the relevant statutory provisions. At a procedural hearing on 10 January 2006 the appellant made submissions to
the Tribunal claiming privilege against self-incrimination in respect of the
production of documents in her possession.
She also sought the withdrawal of the respondents' representations in
terms of Regulations 14(b) and 6(1)(b) of the Regulations. The appellant explained to the court that she
had been reading the Regulations when it occurred to her that the respondents
had not complied with them. Accordingly
she had raised the issue at the procedural hearing. Although her motion for the withdrawal of the
representations was unsuccessful, it was apparent that the appellant not only
understood the Regulations and the principle against self-incrimination, but
was also able to air her concerns in those respects before the Tribunal. In that regard she was clearly not disadvantaged
in having to represent herself. She also
raised the issue of the application of the Data Protection Act 1998 to
patients' records that had been produced.
If she had been successful in excluding evidence about such records the
respondents might have been unable to prove some of their allegations about her
fraudulent scheme. Furthermore it was evident
that she appreciated the significance of having original documents. The prosecution against her had collapsed
because the Crown had failed to lodge the principal payment schedules and had
sought to rely upon copies from the respondents' computer files when the
original copies were in the possession of the appellant throughout. When items of her property, including
original documents such as lens order forms, the Beaumont Book and diaries, were
returned to her by the procurator fiscal the appellant destroyed them prior to
the hearing before the Tribunal.
Moreover, the appellant successfully opposed a Minute of Amendment
seeking to introduce additional cases which had featured in the criminal
prosecution. It is clear from the
decision of the Tribunal in that regard that they were concerned about the
lateness of the application and while the balance was a fine one the Tribunal
exercised its discretion in favour of the "unrepresented" appellant. Thus apart from the appellant's familiarity
with procedure and the Regulations it appears that the Tribunal took into
account the fact that the appellant was unrepresented. In the course of the evidence the Tribunal
and counsel for the respondents also made allowance for that fact by pursuing
issues raised in cross-examination by the appellant. This resulted in the Tribunal excluding from
the alleged fraudulent claims by the appellant those claims relating to prisms
that had been effected by decentration in her workshop and also claims for
tints.
[27] We have
considered the appellant's submissions relating to the lodging of a list of
witnesses and additional productions on the first morning of the hearing and we
reject them. There is no requirement in
the Regulations upon any party to provide a list of witnesses to the Tribunal
or to the other party. Moreover, it must
have been obvious to the appellant from the representations and the other
documents that witnesses would be called and the likely identity of these
witnesses. In relation to the
documentary productions it appears from the decision of the Tribunal that the
appellant had had the additional productions, with the exception of the monthly
payment schedules which she had destroyed, in her possession from
September/October 2005 until February 2006 when she delivered them in exchange
for copies to the respondents for electronic processing. The decision to allow the additional
productions was a matter for the discretion of the Tribunal. In the circumstances outlined by the Tribunal
it is inconceivable that a different result would have been achieved if the
appellant had been legally represented.
[28] In all
the circumstances we are not satisfied that the appellant has established that
legal representation was indispensable in the sense that without such
representation she was unable to present her case properly and
effectively. Accordingly we shall refuse
the first ground of appeal.
[29] It was
a matter of agreement that the second ground of appeal was an extension of the
first ground and did not raise any separate issues in this case. In view of our decision in respect of the
first ground of appeal we shall accordingly refuse the second ground of appeal.
Decision
[30] For the foregoing reasons we shall refuse
the appeal.