European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 46850/10
Lloyd SUBNER
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 29 November 2011 as a Chamber composed of:

Lech Garlicki, President,
David Thór Björgvinsson,
Nicolas Bratza,
Päivi Hirvelä,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 2 August 2010,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

PROCEDURE

The applicant, Mr Lloyd Subner, is a British national who was born in 1965 and lives in London. He is represented before the Court by Mr M. Berkin, a barrister practising in London.

The United Kingdom Government (“the Government”) were represented by their Agent, Ms J. Neenan of the Foreign and Commonwealth Office.

The applicant was employed in the National Health Service as an operating department practitioner at King’s College Hospital Trust (“the Trust”). His employment fell within the regulatory system for low-paid, semi-professional health professionals in the NHS. A register of such health professionals who are fit to practise in the United Kingdom is maintained by the Health Professions Council (HPC).

On 3 January 2007, after an alleged incident of misconduct by the applicant at work on 12 December 2006, the Trust dismissed the applicant. The HPC was informed of this decision on 26 March 2007.

A hearing then took place before the Conduct and Competence Committee of the HPC on 6 October 2008. The applicant did not attend and the Committee decided to proceed in his absence. Having heard oral evidence from four witnesses, and having considered two witness statements, including one from the applicant, the Committee considered the applicant to have been guilty of misconduct. It further considered that the applicant’s fitness to practice was impaired and struck him off the register of operating department practitioners.

The applicant appealed to the High Court, which dismissed his appeal on 23 October 2009. The High Court found that, although the relevant practice direction on appeals allowed certain healthcare professionals (such as doctors, dentists and nurses) the right to an appeal by way of rehearing from decisions of their professional bodies, this right did not apply to appeals from decisions of the HPC. As such, the applicant’s appeal proceeded as an appeal by way of review only.

The High Court further found that the sixteen months it had taken for the HPC to hear the applicant’s case was not in breach of the reasonable time requirement of Article 6 of the Convention. Moreover, the proceedings had been fair and the Committee had been entitled to reach the conclusions it had, both in respect of its findings of misconduct and its decision to strike the applicant off the register.

The applicant applied to the Court of Appeal for permission to appeal, inter alia on the ground that the relevant practice direction was ultra vires and that his appeal should have proceeded by way of re-hearing and not by way of review. He further submitted it was discriminatory, within the meaning of Article 14 of the Convention, to allow certain healthcare professionals an appeal by way of re-hearing but to allow others, in particular those professionals who were regulated by the HPC, the right to an appeal by way of review only. Permission to appeal was refused on the papers on 21 December 2009. The Court of Appeal found that it was not ultra vires to restrict appeals from the HPC in this way. The decision to do so did not involve discrimination on any of the grounds stated or implied in Article 14.

The applicant renewed his application for permission to appeal at an oral hearing. This was refused on 22 July 2010. The Court of Appeal again found that there had been no discrimination within the meaning of Article 14 and that the proceedings had been fair for the purposes of Article 6.

COMPLAINTS

Before this Court, the applicant complained that the decision of the High Court to consider his appeal by way of review and not by way of re-hearing was in violation of Article 6 read in conjunction with Article 14 of the Convention.

He submitted that restricting his right of appeal to an appeal by way of review when other, better paid healthcare professionals would enjoy a right of appeal by way of a re-hearing was a difference in treatment based on “other status” within the meaning of Article 14. He further argued that the difference in treatment was discriminatory since it had no rational or logical basis. As few appeals were brought by healthcare professionals, he submitted that there was no justification for the two types of appeal.

The applicant further complained that this appeal system was in breach of Article 13 of the Convention.

THE LAW

By letters dated 2 August 2011 and 6 October 2011 the Government and the applicant indicated that a friendly settlement had been agreed between the parties, under the terms of which the Government agreed to pay the applicant GBP 50,000 (approximately EUR 57,107) to cover any pecuniary and non-pecuniary damage as well as costs and expenses. The Government also informed the Court that they were seeking to amend paragraph 22.3 of Practice Direction 52 of the Civil Procedural Rules such that appeals from decisions of the Health Professions Council would be heard by way of re-hearing by the High Court.

THE LAW

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention), having regard in particular to the changes to the Civil Procedure Rules mentioned by the Government. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Lawrence Early Lech Garlicki
Registrar President