QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF THE HEALTH PROFESSIONS COUNCIL||(CLAIMANT)|
|THE DISCIPLINARY COMMITTEE OF THE CHIROPODISTS BOARD||(DEFENDANT)|
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(Official Shorthand Writers to the Court)
MR A RAMON ARIORI (Chairman of the Disciplinary Committee) appeared on behalf of the DEFENDANT
Crown Copyright ©
The issue in outline
In this case the claimant seeks judicial review of the decision of the Disciplinary Committee of the Chiropodists Board, which on 7th March 2002 dismissed six charges of serious professional misconduct against Mr Green, a chiropodist who had been registered in the United Kingdom since 1981. Some of the conduct complained of occurred in New Zealand. The Committee decided that it did not have jurisdiction to hear the New Zealand charges. The issue is, was the Committee right.
The relevant statutory provision at the time of the hearing was the Professions Supplementary to Medicine Act 1960. As from 1st April 2002 there have been new provisions set out in the Health Professions Order 2001, a statutory instrument made under section 62(9) of the Health Act 1999. This application is therefore somewhat academic.
"For each of the following professions, that is to say, chiropodists...there shall a body, to be called the Chiropodists Board...which shall have the general function of promoting high standards of professional education and professional conduct among members of the relevant profession, and the additional functions assigned to it by this Act."
Section 2 of the Act, among other things, places a duty on the Board to prepare and maintain a register of members. Sections 8 and 9 deal with disciplinary provisions. Section 8(1) provides that:
"Each board shall set up two committees, to be known as the investigating committee and the disciplinary committee respectively, of which -
(b) the disciplinary committee shall be charged with the duty of considering and determining any case referred to it by the investigating committee and any other case of which the disciplinary committee has cognisance..."
"(1) Where -
(a) a person who is registered by a board is convicted by any court in the United Kingdom of a criminal offence which, in the opinion of the disciplinary committee set up by the board, renders him unfit to be registered; or
(b) such a person is judged by the disciplinary committee to be guilty of infamous conduct in any professional respect...
the committee may, if it thinks fit, direct that the person's name shall be removed from the register."
That is provided for under the Second Schedule of Part II of the Act. Among other things, it requires that the case be proved against the defendant. It also provides that evidence may be given on oath and that subpoenas may be issued within the jurisdiction.
On 31st January 2002 Mr Harding, the solicitor to the Committee, sent a letter to Mr Green informing him that an inquiry would be held in respect of a series of charges. The charges were set out in the letter. Although there were some subsequent amendments, they are not, for present purposes, material. The charges were:
"That you being a State Registered Chiropodist are guilty of infamous conduct in a professional respect in that you did either individually, or cumulatively:-
(a) in June 1997, borrow NZ$4,500.00 from your patient...to assist you in the acquisition of the...clinic;
(b) in 1995, at Central Institute of Technology...borrowed NZ$600.00 from a student...whilst you were a lecturer at that institution;
(c) fail to repay in its entirety the money borrowed [in respect of charge (a)];
(d) fail to repay the money borrowed [in respect of charge (b)];
(e) in or around June 1998, you abandoned your podiatry practise known as the Cornwall Podiatry Clinic without notice to
(i) Your professional colleagues; and
(ii) Your patients;
(f) on or before August 1996, whilst in the employ of CIT you removed a nail drill belonging to CIT without permission.
(g) in an application form dated 6th July 1999, [you misled] the Rotherham Primary Health NHS Trust as to your employment history in that you failed to mention your employment with CIT."
The letter went on to say:
"Notice is further given to you that on Monday, 7th March 2002, at 11.00 in the morning...a meeting of the Disciplinary Committee of the Board will be held at the offices of the Council for Professions Supplementary to Medicine, Park House, 184 Kennington Park Road, London...to consider the above-mentioned charges against you and to determine whether or not they should direct the Registrar to remove your name from the Register pursuant to Section 9 of the Professions Supplementary to Medicine Act 1960, or give any other direction provided for in that section."
The letter then invites him to answer the charges in writing and also appear before the Committee at the time and place specified for the purpose of answering:
"The Committee have power, if you do not appear, to hear and decide upon the said charges in your absence."
"It is our intention to read these statements...at the hearing...unless you object to this course of action within the next seven days."
There was no response from Mr Green.
Mr Harding represented the Board. Mr Green did not attend. Mr Williams was the Legal Assessor to the Committee. Mr Williams raised the issue of jurisdiction as far as the New Zealand charges were concerned. Mr Harding submitted that jurisdiction arose from the fact that Mr Green was registered by the Board in the United Kingdom. It was not known, he said, whether he was registered in New Zealand.
"I have looked in a textbook, which is called Law & Practice of Disciplinary & Regulatory Proceedings by Brian Harris, the 2nd Edition, and at page 4 of that textbook it raises the question of jurisdiction in place, and if I can read that out to you. It says:
'Many professional bodies impose no limit to the geographical area over which they claim jurisdiction, although misconduct is often confined, for practical reasons, to acts or omissions committed in this country. In the case of many bodies the issue of extra territoriality has never arisen and thus has never been confronted.'"
He also said:
"It is my experience, during the time I have been acting as Legal Assessor for this and other Boards within the Council for Professions Supplementary to Medicine, that no Board has ever had to determine the issue. You are the arbiters of fact and law and for the purposes of these proceedings and at the end of the day it is a matter for you as to whether or not you regard acts or omissions committed outside of the jurisdiction as being capable of being dealt with by you."
And a little later on he said:
"I cannot assist you a great deal further than that other than to say that, as Mr Harris has said in his book, many professional bodies impose no limit to the geographical area over which they claim jurisdiction and in my view the date of registration for the respondent in this case is a relevant consideration for you to take into account."
"It is unfortunate that Mr Green is not represented here or is present to give a view on this particular issue. For me there are certain significant problems with hearing matters that have taken place outside of the United Kingdom, problems of issuing subpoenas, things of this nature. I am trying to imagine defending counsel putting forward a counter-argument to what you have said, Mr Harding."
Mr Harding then dealt with issues concerning the issue of subpoenas and enforcing attendance. He said, as is the case, that in this case the witnesses who had made statements had indicated their willingness to attend, assuming their costs were reimbursed.
"In this case, the Disciplinary Committee is not prepared to hear charges (a), (b), (c), (d), (e) and (f) because they refer to matters outside the United Kingdom and do not directly relate to Mr Green's registration in this country.
We accept, however, that there are circumstances where charges of infamous conduct might be heard relating to matters which occurred outside the United Kingdom."
(1) They were not provided with any legal precedents;
(2) The 1960 Act was designed to regulate the profession in the United Kingdom;
(3) The standard of proof was criminal; jurisdiction would not lie in criminal proceedings;
(4) They were concerned about fairness and the difficulty of witnesses giving evidence from outside the jurisdiction; they were concerned about the absence of Mr Green;
(5) The extract from Harris quoted to them was less than helpful;
(6) If there was doubt about jurisdiction, it should be exercised in Mr Green's favour.
I have come to the view that the Committee did have jurisdiction to hear the New Zealand complaints.