21 February 2011
by Lloyd SUBNER
against the United Kingdom
lodged on 2 August 2010
STATEMENT OF FACTS
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.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
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 proceed 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.
B. Relevant domestic law and practice
The HPC is established pursuant to the Health Professions Order 2001 ("the 2001 Order"). It principal functions are to establish standards of education, training, conduct and performance for members of the relevant professions and to ensure the maintenance of those standards (Article 3 of the 2001 Order).
Pursuant to Article 5 of the 2001 Order, the HPC establishes and maintains a register of members of the relevant professions. The relevant professions are identified in Schedule 3 to the 2001 Order and include operating department practitioners.
Article 38 provides for a right of appeal against decisions of the Conduct and Competence Committee of the HPC. In England and Wales, the right of appeal is to the High Court (Article 38(4)(c)).
Appeals to the High Court are regulated by Part 52 of the Civil Procedure Rules. Part 52.11, where relevant, provides as follows:
“(1) Every appeal will be limited to a review of the decision of the lower court unless –
(a) a practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
(2) Unless it orders otherwise, the appeal court will not receive –
(a) oral evidence; or
(b) evidence which was not before the lower court.
(3) The appeal court will allow an appeal where the decision of the lower court was –
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”
Paragraph 22 of the accompanying practice direction to Part 52 identifies certain statutory appeals, including those of certain healthcare professionals, which will be by way of re-hearing. These include the appeals of pharmacists, nurses, midwives, health visitors, doctors, dentists, opticians, osteopaths and chiropractors. However, appeals from decisions of HPC under the 2001 Order are not included in the practice direction.
The applicant complains 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 submits 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 is a difference in treatment based on “other status” within the meaning of Article 14. He further argues that the difference in treatment is discriminatory since it has no rational or logical basis. As few appeals are brought by healthcare professionals, he submits there is no justification for the two types of appeal.
The applicant further complains that this appeal system is in breach of Article 13 of the Convention.
QUESTIONS TO THE PARTIES
(i) was the applicant in an “analogous position” to other healthcare professionals who benefited from an appeal by way of re-hearing?
(ii) was that difference in treatment objectively justified? In particular, what was the justification for not including appeals from the Health Professions Council in paragraph 22 of the practice direction that accompanies Part 52 of the Civil Procedure Rules?