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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Tehrani, Re Application For Judicial Review [2001] ScotCS 19 (25 January 2001)
URL: http://www.bailii.org/scot/cases/ScotCS/2001/19.html
Cite as: [2001] IRLR 208, [2001] ScotCS 19, 2001 IRLR 208
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD MACKAY OF DRUMADOON in the Petition of MARGUERITE YVONNE SIMPSON TEHRANI for Judicial Review of a purported decision of the United Kingdom Central Council for Nursing. Midwifery & Health Visiting dated 12 October 2000 to determine certain charges against her before their Professional Conduct Committee ________________ |
Petitioner: O'Neill, Q.C., Mackenzie; Anderson Strathearn
Respondents: O'Brien, Q.C., Springham: Balfour and Manson
Secretary of State for Health: Carmichael: R Henderson
Scottish Ministers: Dewar: H. F. McDiarmid
25 January 2001
Introduction
[1] The petitioner is a nurse by profession. She was formerly the Matron of the Fuinary House Nursing Home in Glasgow. She is presently unemployed. She is currently seeking employment as a nurse. The respondents are the United Kingdom Central Council for Nursing, Midwifery and Health Visiting. They are constituted in terms of the Nurses, Midwives and Health Visitors Act 1997 ("the 1997 Act"). The 1997 Act consolidated the Nurses, Midwives and Health Visitors Act 1979, which had been substantially amended since it was first enacted. The respondents' duties under the 1997 Act include that of maintaining a register of qualified nurses, midwives and health visitors ("the Register") (section 7(1)). The petitioner, by virtue of her qualifications as a nurse, is currently registered in the part of the Register relating to nurses. As such the petitioner is "a registered nurse", within the meaning of section 7(8) of the 1997 Act.
[2] The Respondents have initiated disciplinary proceedings against the petitioner. In connection with those proceedings, a Notice of Inquiry, dated 12 October 2000, has been served on the petitioner. That Notice of Inquiry alleges that the petitioner has been guilty of misconduct. The charge set out in the Notice of Inquiry is in these terms:-
"That you whilst the registered person in charge of Fuinary House Nursing Home, Old Mearns Road, Newton Mearns, Glasgow G77 6RS in 1997 and 1998:
1a failed to be in attendance at the home for a minimum of 35 hours per week between Mondays and Fridays and in so doing failed to maintain adequate staffing levels; and
1b that in so failing to be in attendance at the home for a minimum of 35 hours between Mondays and Fridays you are guilty of misconduct."
[3] The Notice of Inquiry stated that the charge against the petitioner would be investigated at a meeting on 10 November 2000 of the respondents' Professional Conduct Committee (the "PCC"). Following upon service of the Notice of Inquiry, this petition for judicial review was lodged. The petition for judicial review raises important questions as to whether the procedures for determining the disciplinary charge concerning the petitioner would be compatible with the petitioner's "Convention rights", within the meaning of section 1(1) of the Human Rights Act 1998 ("the 1998 Act"). Pending the determination of this petition, the disciplinary proceedings against the petitioner have been suspended. I understand that disciplinary proceedings against other registered nurses are also being held in abeyance, until the outcome of this petition is known.
[4] The petition seeks a number of remedies. It seeks declarator that the respondents' decision of 12 October 2000, to hold a meeting of the PCC to determine the charge of misconduct against the petitioner, is unlawful, because that decision is incompatible with the petitioner's Convention right under Article 6(1) to a hearing before an independent and impartial tribunal. Reduction of the decision of 12 October 2000 is also sought. At the outset of the First Hearing before me, I was advised that the petitioner was not insisting upon the remedies of interdict and interim interdict. I was also advised that the petitioner did not intend to pursue the common law case, pled in Article 26 of the Petition, to the effect that hearings before the PCC are conducted in a procedurally unfair manner. During the course of the hearing before me, it was made clear that at some later stage in the proceedings, the petitioner might insist on her alternative remedy for declarators of incompatibility, in terms of sections 4(2) or 4(4) of the 1998 Act. No such declarators were sought during the course of the hearing.
[5] When the First Hearing began, the petitioner and the respondents were represented by counsel, as was the Secretary of State for Health. In view of the terms of the Answers lodged on behalf of the respondents, which assert that others, including the Chief Nursing Officer for Scotland and the Chief Medical Officer for Scotland, may have an interest in the petition, I enquired of the parties represented whether it was considered that the petition ought to be formally intimated to any other parties and in particular to the Scottish Ministers. During the discussion that followed, reference was made to the provisions of G2 of Schedule 5 to the Scotland Act 1998, which defines the "regulation of the health professions" as a reserved matter for the purposes of section 30 of that Act. At that stage no party sought intimation of the petition to the Scottish Ministers and the hearing got underway.
[6] At the start of the second day of the hearing, junior counsel for the Secretary of State for Health drew my attention to certain provisions of The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999. The provisions of that Order transferred to the Scottish Ministers, with effect from 1 July 1999, the functions provided for in section 19(5)(f) and Schedule 2, paragraph 4 of the 1997 Act, so far as those functions are exercisable by a Minister of the Crown, in or as regards Scotland. The functions in question are two in number. Firstly there is the function of approving, by Order, any Rules made by the respondents under section 10 of the 1997 Act. Secondly there is the function of making Orders as to the duties of legal assessors, appointed to advise the respondents and their committees, in connection with proceedings under section 10 of the 1997 Act. As I shall detail later in this Opinion, the disciplinary proceedings initiated against the petitioner are subject to Orders covering the subject matter of section 19(5)(f) and Schedule 2, paragraph 4 of the 1997 Act. The terms of those Orders, and of Rules, approved by one such Order, were under scrutiny in the hearing before me. At the start of the second day of the hearing, there was still a live issue as to whether, during the course of the hearing, I might be asked to grant declarators of incompatibility, in respect of such secondary legislation, in terms of section 4(4) of the 1998 Act. Any consideration of that particular remedy would involve issues as to the compatibility of the existing secondary legislation with Convention rights. If that secondary legislation, insofar as it applies in Scotland, is to be amended or replaced, responsibility for doing so rests with the Scottish Ministers. For these reasons, I considered that the Scottish Ministers ought to be afforded the opportunity to take part in the hearing. I adjourned briefly to enable the existence of the petition and the hearing to be drawn formally to the attention of the Scottish Ministers. Later that day the hearing was joined by junior counsel, instructed to represent the Scottish Ministers. I was very grateful for such a speedy response. In the event, counsel for the petitioner subsequently made clear that at this stage in the proceedings, no declarators of incompatibility would be sought. Accordingly, submissions as to such declarators were not required. Nevertheless, the presence of counsel for the Scottish Ministers afforded the opportunity for the position of the Scottish Ministers to be clarified in respect of a number of issues, as was done on behalf of the Secretary of State for Health.
Statutory background.
[7] I turn to deal with the statutory provisions under which the respondents operate and, in particular, to the provisions regulating the exercise of their disciplinary function. As I have already indicated the respondents are constituted in terms of the Nurses, Midwives and Health Visitors Act 1997 ("the 1997 Act"). The respondents are a Council composed of 60 members. 40 of the members are appointed by the Secretary of State, on their being elected under an electoral scheme set out in the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (Electoral Scheme) Order 1992. The Secretary of State has no right to reject such elected members. The remaining 20 members are appointed directly by the Secretary of State, from among persons, who meet criteria set out in section 1(4) of the 1997 Act. Members of the respondents serve for a period of five years (The United Kingdom Central Council for Nursing, Midwifery and Health Visiting (Term of Office of Members) Order 1993). Members can only be removed from office in very limited circumstances (Schedule1, paragraph 5 to the 1997 Act).
[8] The functions of the respondents are set out in section 2 of the 1997 Act. The respondents' principal functions are to establish and improve standards of training and professional conduct for nurses, midwives and health visitors (section 2(1)). The respondents' powers included that of issuing advice for nurses, midwives and health visitors on standards of professional conduct (section 2(5)). Advice is issued in the form of Codes, such as the Code of Professional Conduct for the Nurse, Midwife and Health Visitor.
[9] This petition requires detailed consideration of the statutory regime that is currently in place for disciplining nurses. The provisions of the 1997 Act form part of that regime. Before I turn to consider those provisions in detail, it is appropriate that I mention proposals to change the current statutory regime. Section 60 of the Health Act 1999 enables Her Majesty by Order in Council to make provision modifying the regulation of inter alia the professions of nursing, midwifery and health visiting. Those three professions are currently regulated in terms of the 1997 Act. Although section 60 of the Health Act 1999 has been brought into force, no Order in Council has yet been made. Consultation as to the possible contents of such an Order in Council has begun. One of the productions lodged in these proceedings is "Modernising Regulation - The New Nursing and Midwifery Council", a Consultation Document issued by the NHS Executive in August 2000. That document explains that the proposed Order will extend to the whole of the UK. Annex C sets out proposals for the creation of disciplinary procedures for nurses and midwives, which would replace those currently in place. There are a number of significant differences between the procedures currently in place and the proposals contained in the Consultation Document. The proposals include one of setting up an independent body, with a legally qualified chairman, to be known as the Nursing and Midwifery Independent Appeals Tribunal. It is proposed that the Tribunal would determine appeals against disciplinary decisions taken by statutory committees of a newly constituted Nursing and Midwifery Council. It is proposed that the new council should take over the functions presently exercised by the respondents, insofar as those functions relate to the professions of nursing and midwifery. It is proposed that certain decisions of the Tribunal should be appealable to a court on a point of law, in Scotland to the Court of Session. I need say no more about the terms of the Consultation Document
[10] Returning to the terms of the 1997 Act, the respondents' duties include that of maintaining a register of qualified nurses, midwives and health visitors ("the Register") (section 7). The Register is in several parts. An applicant for admission to any part of the Register is entitled to be registered if she is of good character and has the appropriate qualifications (section 8(2)). The petitioner, by virtue of her training and qualifications as a nurse, is eligible for registration in the part of the Register relating to nurses. She is so registered. The provisions of section 7(7) of the 1997 Act are of importance :-
"7(7) In any enactment or instrument (past or future, and including this Act) "registered", in relation to nurses, midwives and health visitors, means registered in the register maintained under this section by virtue of qualifications in nursing, midwifery or health visiting, as the case may be."
[11] By virtue of her inclusion in the Register and the provisions of section 7(7), the petitioner is able to carry on the profession of nurse and in particular to carry out all the nursing duties reserved to a "registered nurse", by virtue of a miscellany of statutory provisions, to some of which I refer later. Conversely, it is an offence for any individual to falsely represent herself to be registered in the Register (section 13(1) of the 1997 Act).
[12] Sections 10, 11 and 12 of the 1997 Act provide as follows:-
Removal from, and restoration to, register
"10.-(1) The Central Council shall by rules determine circumstances in which, and the means by which -
(a) a person may, for misconduct or otherwise, be removed from the
register or a part of it, whether or not for a specified period;
(b) a person who has been removed from the register or a part of it may be restored to it;
(c) a person's registration in the register or a part of it may be directed to be suspended, that is to say, not to have effect during such period as may be specified in the direction;
(d) the suspension of a person's registration in the register or a part of it may be terminated; and
(e) an entry in the register may be removed, altered or restored.
(2) Committees of the Council shall be constituted by the rules to deal with proceedings for a person's removal from, or restoration to, the register, for the suspension, or termination of the suspension, of a person's registration in the register or for the removal, alteration or restoration of any entry.
...........
(5) The committees need not be constituted exclusively from members of the Council, but the rules shall provide, in relation to committees constituted by them, that there shall be a quorum only if a majority of those present are members of the Council.
(6) The rules shall so provide that the members of a committee constituted to adjudicate upon the conduct of any person are selected with due regard to the professional field in which that person works.
(7) The rules shall make provision as to the procedure to be followed, and the rules of evidence to be observed, in such proceedings, whether before the Council itself or before any committee so constituted, and for the proceedings to be in public except in such cases (if any) as the rules may specify.
- Schedule 2 to this Act has effect with respect to the conduct of proceedings to which this section applies.
...........
Cautions
11.-(1) Without prejudice to the generality of section 10, rules under that section may make provision with respect to the giving, in the course of disciplinary proceedings, of cautions as to future conduct.
(2) Rules under section 10 may also make provision with respect to the keeping by the Council of a record of any caution as to future conduct given in the course of disciplinary proceedings.
(3) For the purposes of this section "disciplinary proceedings" means proceedings for removal from the register or a part of it for misconduct.
Appeals
12.-(1) A person aggrieved by a decision to remove him from the register or to direct that his registration in the register be suspended or to remove or alter any entry in respect of him, or by any decision under section 10(3) or (4), may, within three months after the date on which notice of the decision is given to him by the Council, appeal to the appropriate court; and on the appeal -
(a) the court may give such directions in the matter as it thinks proper, including directions as to the costs of the appeal; and
(b) the order of the court shall be final.
(2) The appropriate court for the purposes of this section is the High Court, the Court of Session or the High Court in Northern Ireland, according as the appellant's ordinary place of residence is in England and Wales, Scotland or Northern Ireland at the time when notice of the decision is given".
[13] Those statutory provisions give the respondents power to take disciplinary proceedings against any individual whose name is included in the Register. If such disciplinary proceedings result in a finding of misconduct, the individual concerned may be removed from the Register or from the part(s) of the Register in which her name is included. In that event, the individual concerned has a right to appeal in terms of section 12 of the 1997 Act. In Scotland such an appeal lies to the Court of Session. Disciplinary proceedings may also result in an individual, whose name is included in the Register, receiving a caution as to her future conduct or having a finding of misconduct made against her, without any penalty of any kind being imposed. In the event of either of those disposals, there is no right of appeal under section 12. The only court proceedings that could be raised would be judicial review proceedings in the Court of Session. The respondents keep a record of each caution imposed, for a period of 5 years. The record of a caution may be taken into consideration by the Preliminary Proceedings Committee ("the PPC") and by the PCC, in the discharge of their duties in any subsequent disciplinary case involving the same practitioner.
[14] The Rules currently in force in relation to disciplinary proceedings involving registered nurses are set out in The Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1993 Approval Order 1993 (SI 1993/ 893) ("the Rules"). The role of legal assessors to the respondents and their committees, in connection with the conduct of such proceedings, is regulated by The United Kingdom Central Council for Nursing, Midwifery and Health Visiting (Legal Assessors) Order 1983 (SI 1983/839), as amended by The United Kingdom Central Council for Nursing, Midwifery and Health Visiting (Legal Assessors) (Amendment) Order 1993 (SI 1993/892) (together referred to as "the 1983 Order").
[15] The respondents' disciplinary procedures are partly governed by statutory provisions and partly by administrative practices, which the respondents have adopted and now follow. Those procedures operate along the following lines. From time to time, the respondents receive complaints against individuals, whose names are included in the Register. Whilst such complaints may be investigated by the Council as a whole, with the assistance of its officials, serious complaints are normally directed to the respondents' PPC.
[16] The PPC is composed of a number of members of the respondents, together with others, appointed by the respondents, from outwith the respondents' membership. There are two panels of non-council members, who are appointed for fixed terms of three years to sit, when required, on both the PPC and the PCC. One panel consists of 16 practitioners in the fields of nursing, midwifery, health visiting and medical practice. The other panel consists of 14 individuals nominated from consumer organisations, active in the field of health and social care. A list of such organisations was produced. The organisations from which nominations were sought, before the current panel of 14 was appointed, include bodies such as the Association for Residential Care, the British Diabetic Association, the Family Planning Association, the National Association for Mental Health, the Scottish Consumer Council and many others.
[17] The respondents select panel members to serve on the PPC and the PCC, paying due regard to the particular professional field of the individual practitioner under consideration and to the desirability that those with experience of consumer and patient interests in general are involved in disciplinary proceedings. The respondents endeavour to include a member of each panel amongst those taking part in each meeting of the PPC or the PCC. By virtue of the terms of section 10(5) of the 1997 Act and Rules 7(5) and 12(5) of the Rules, a meeting of the PPC or the PCC is quorate, if at least three members of the respondents are present and constitute a majority of those considering a particular case. Any meeting of the PPC is chaired by the Vice President of the respondents, whom failing by a Deputy Chairman appointed by the respondents, whom failing by a member of the respondents, elected to serve as such by the members of the PPC in attendance at the meeting in question (Rules 7(2) - (4)).
[18] Meetings of the PPC are held in private (Rule 7(7). When the PPC is considering a particular case, it is not necessary that the PPC be composed of the same members who sat on the committee on any previous occasion the case was discussed (Rule 7(8)). No record is kept of how individual members of the PPC vote. Meetings of the PPC are attended by employees of the respondents, who are referred to in the Rules as "the Council's Officer". The duties of the Council's Officer include writing to practitioners complained against, to inform them of the allegations against them, advising such practitioners that the PPC may issue a Notice of Proceedings, in respect of the allegations against them, to which the practitioners will be invited to respond in writing, and informing practitioners that if they wish to submit a preliminary response to the allegations, they are free to do so (Rule 8(1).
[19] When a complaint is referred to the PPC, a solicitor appointed by the respondents may be instructed to investigate the case. In that event, having carried out such investigation as is appropriate, the solicitor submits a report to the PPC, with advice as to whether evidence of misconduct exists. The solicitor may also draft charges, for consideration by the PPC. In any case in which the PPC considers that the alleged misconduct may lead to removal of a practitioner from the Register, that committee requires to arrange that a Notice of Proceedings be served upon the practitioner. The practitioner must also be informed of her right to respond, in writing, to the Notice of Proceedings (Rule 9(1). In the petitioner's case, a Notice of Proceedings was sent to her on 12 November 1999. It ran in the name of the respondents' Acting Director of Professional Conduct and was signed on her behalf by Ruth Gibson, one of the respondents' employees.
[20] Where a Notice of Proceedings has been sent to a practitioner, the PPC must consider any written response received. The PPC then has to determine whether or not to refer the practitioner's case to the PCC, with a view to the removal of the practitioner concerned from the Register (Rule 9(3)(a)). Where issues of serious impairment of fitness to practise arise, by reason of physical or mental condition, the PPC may also refer the practitioner concerned to the respondents' professional screeners (Rule 9(3)(b)). If the PPC chooses neither of those options, it is open to the PPC to determine whether the practitioner concerned is guilty of misconduct. The PPC may only do so, if the practitioner admits the facts set out in the Notice of Proceedings. If the PPC reaches the view that the practitioner is guilty of misconduct, it is within the committee's discretion to issue a caution to the practitioner as to her future conduct (Rule 9(3)(c)). When the PPC decides to refer a particular case to the PCC, it directs the respondents' Registrar to inform the practitioner in question of that decision (Rule 9(5)).
[21] Rule 13(1) provides that when a case has been referred by the PPC to the PCC, the Registrar shall also send a Notice of Inquiry to the practitioner concerned. That Notice of Inquiry specifies the particulars of the charge against the practitioner and informs her of the date, time and place of the meeting of the PCC, which will constitute the hearing of the charge (Rule 13(1). The practitioner is entitled to be present and to be represented at the hearing, by a legal or lay representative of her choice.
[22] As I have indicated, by Notice of Inquiry dated 12 October 2000, the petitioner was advised that a charge of misconduct had been brought to the notice of the Council and that the Professional Conduct Committee of the Council proposed to investigate that charge at a hearing in Edinburgh on 10 November 2000. That Notice ran in the name of the respondents' Director of Professional Conduct. It was signed on her behalf by Ruth Gibson, the same employee of the respondents, who had signed the Notice of Proceedings issued upon the direction of the PPC. Service of that Notice of Inquiry dated 12 October 2000 precipitated the present proceedings for judicial review.
[23] The PCC is constituted along similar lines to the PPC. Any meeting of the PCC is attended by members of the respondents and by others, drawn from the two panels, I have referred to. By virtue of the terms of section 10(5) of the 1997 Act and Rule 12(5) a meeting of the PCC is quorate, if at least three members of the respondents constitute a majority of those present to consider a particular case. Any meeting of the PCC is chaired by the President of the respondents, whom failing by a Deputy Chairman appointed by the respondents, whom failing by a member of the respondents, elected to serve as such by the members of the PCC in attendance at the meeting in question (Rules 12 (4) - (6)). Rule 12(7) provides that any person who has participated in the consideration of a case as a member of the PPC or as a professional screener shall not be a member of a PCC meeting dealing with that case. However, the same individuals, whether members of the respondents and panel members, serve from time to time on both the PPC and the PCC. All those who take part in the work of the PPC and the PCC are allocated to particular meetings by an administrative officer. That official has no knowledge about, nor interest in, the outcome of particular cases. On occasion members of the respondents and panel members decline to take part in the consideration of cases involving particular practitioners, if there is reason that they should not do so.
[24] Where a case has been referred by the PPC to the PCC, the respondents' President may, on her own motion or on the application of a party to the proceedings, postpone the hearing before the PCC. The President may also refer the matter back to the PPC, for further consideration as to whether a hearing should take place.
[25] When the PCC sits, it is advised on questions of law by a legal assessor, appointed under the provisions of Schedule 2 to the 1997 Act. A legal assessor appointed in terms of Schedule 2 has no role to play in advising the PPC, although it is competent for such a legal assessor to provide legal advice to the respondents, as a council body. The legal assessor must be present throughout any disciplinary proceedings being held before the PCC. He is under a duty to advise on any questions of law that may arise (Article 2 of the1983 Order). The legal assessor is also under a duty to advise the PCC, forthwith, of any irregularity in the conduct of its proceedings, which may come to his knowledge. He must advise the members of the PCC where there is a possibility of a mistake in law being made (Article 3). The legal assessor's advice must be made public. If such advice is given to the members of the PCC, when they are meeting in camera, then, as soon as possible, the parties or their representatives must be informed of that advice (and of any question to which such advice is a response). A written record must be kept of all legal advice given and of any refusal on the part of the PCC to follow such advice (Articles 4 and 5).
[26] All cases before the PCC are prosecuted in the name of the respondents. In Scotland, such prosecutions are conducted by one solicitor, who is in private practice. She is "the solicitor" for the purposes of the Rules. The same individual acts at the earlier stage, when allegations of professional misconduct are being investigated, by the PCC. When a case of alleged misconduct is referred to the PCC, the solicitor also undertakes any further preparation necessary for the hearing before the PCC, including the citation of witnesses. She appears at the hearing and presents the case against the practitioner concerned. This may involve the leading of oral evidence. The PCC may require the solicitor to call any person as a witness in any proceedings before it (Rule 25(5)) The solicitor acts in terms of a contract between the respondents and herself, which makes provision for professional services being provided by the solicitor for basic term of three years. As an enrolled solicitor with the Law Society of Scotland, the solicitor, in acting on behalf of the respondents, is obviously bound to adhere to the rules and professional standards of her own profession.
[27] Disciplinary meetings before the PCC are normally held in public. Such hearings are advertised in the nursing press. The procedure followed by the PCC has some similarities to that adopted by other statutory tribunals. Hearings can, however, proceed in the absence of the practitioner and the rules as to the admissibility of evidence are more flexible than those commonly found in some court proceedings. The PCC normally deliberates and votes in private. The practice followed by the PCC is that a finding of misconduct against a practitioner is only made when the PCC is satisfied beyond reasonable doubt that the practitioner has been guilty of such misconduct. Its findings are always announced in public. Reasons are given for its decisions. Employees of the respondents attend meetings of the PCC. Since 3 November 2000 such employees do not retire with members of the PCC, when they deliberate in camera.
Legal issues involved in petition
[28] The legal issues that arise in the present petition require to be viewed against the factual and regulatory background I have set out thus far. The petitioner contends that the respondents have acted illegally in deciding to determine the disciplinary charge against her at a meeting of the PCC. She contends that the respondents are a "public authority", for the purposes of section 6 of the 1998 Act. She contends that it is unlawful for the respondents, as a public authority, to act in a way which is incompatible with her Convention rights, within the meaning of section 1 and Schedule 1 to the 1998 Act. It is argued, on her behalf, that the hearing of the disciplinary charge against her by the PCC would constitute a determination of her civil rights and obligations, within the meaning of Article 6(1) as set out in Schedule 1 to the 1998 Act. It is argued that when the constitution and procedures of the PCC are considered, that body does not by itself constitute an "independent and impartial tribunal", meeting the requirements of Article 6(1). It is further argued that for the purposes of considering whether the respondents have acted in breach of the provisions of section 6(1) of the 1998 Act, the petitioner's right of appeal against any decision of the PCC to remove her name from the Register (under section 12 of the 1997 Act) is of no relevance. On that basis, it is argued that the decision of the respondents to refer her case to the PCC constitutes an act incompatible with her Convention rights.
[29] During the course of the submissions by junior counsel for the respondents, concern arose as to whether in the time allocated for the First Hearing, full submissions could be heard on all the legal issues raised in this judicial review. For that reason, the parties reached a consensus as to the issues they wished me to consider at this stage of the proceedings. The agreement was that I should express my views on those issues in this Opinion. The case would then be put out "By Order", to enable further procedure to be discussed. Such an agreement was eminently sensible, in view of the complexities that might be involved in certain of the questions raised by these proceedings.
[30] I would focus the issues I have been invited to consider in the following terms:
(a) Could the proposed disciplinary proceedings before the PCC lead to a determination of the petitioner's civil rights and obligations?
(b) If so, must the PCC meet all the requirements of an independent and impartial tribunal, within the meaning of Article 6(1)?
(c) Would the proposed proceedings before the PCC, subject to the section 12 right of appeal, constitute a determination by an independent and impartial tribunal, within the meaning of Article 6(1)?
(d) Does the PCC meet all the requirements of an independent and impartial tribunal, within the meaning of Article 6(1)?
(a) Could the proposed disciplinary proceedings before the PCC lead to a determination of the petitioner's civil rights and obligations?
[31] It is a matter of agreement between the parties that the respondents are a "public authority", for the purposes of section 5 of the Human Rights Act 1998. Counsel for the respondents and the Secretary of State acknowledged that the respondents are a statutory body, endowed with statutory powers to regulate the nursing profession, including the exercise of a disciplinary function in respect of members of that profession. In my opinion, counsel for the respondents and the Secretary of State correctly described the respondents' disciplinary function as being a function of a public nature. Whatever private functions the respondents may undertake, when the respondents are exercising their disciplinary function, they clearly fall within the definition of public authority, to be found in section 6(3)(b) of the 1998 Act.
[32] As a public authority, the respondents' actings are subject to the provisions of section 6(1) of the 1998 Act. Accordingly it is unlawful for the respondents to act in a way, which is incompatible with Convention rights. The petitioner's Convention rights include those set out in Article 6 (1) of the European Convention on Human Rights, which begins as follows:
" Article 6
Right to a fair trial
(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...."
[33] During the hearing before me, the respondents conceded that if, in their capacity as a public authority, they have acted in a manner incompatible with the petitioner's Convention rights under Article 6(1), the petitioner is a "victim", within the meaning of section 7(7) of the 1998 Act. What remains in dispute, however, is whether the disciplinary proceedings initiated against the petitioner could lead to a "determination of her civil rights and obligations" within the meaning of Article 6(1). I use the word "could" advisedly. In my opinion, for the purposes of the present proceedings it is not necessary for the petitioner to establish that, whatever their outcome, the disciplinary proceedings will result in a determination of her civil rights and obligations. In my opinion, if the petitioner can establish that the disciplinary proceedings could result in a finding that would constitute a determination of her civil rights and obligations, the decision to initiate those disciplinary proceedings is open to challenge as being incompatible with the petitioner's Convention rights. Before me, no party disputed that it was open to the petitioner to raise this challenge at this stage. None of the counsel for the respondents, the Secretary of State for Health and the Scottish Ministers suggested that the petition was premature or that the disciplinary proceedings required to run their course, before the Court of Session could address the issues, which the petitioner had raised.
[34] What the petitioner contends is this. If a finding of misconduct is made against the petitioner, her name could be removed from the Register. Such a ruling would have severe consequences as to the employment that would remain open to her. On account of these consequences, she would suffer the loss of her right to practise her chosen profession, namely that of nursing. On those grounds, she argues that the removal of her name from the Register would constitute a determination of her civil rights and obligations within the meaning of Article 6(1). The respondents and the Secretary of State dispute that the removal of the petitioner's name would constitute such a determination.
[35] In considering this particular issue, I am required to take account of Strasbourg jurisprudence, which is relevant (section 2(1) of the 1998 Act). To assist me in doing so, I was referred to a number of cases decided by the European Court of Human Rights ( "the ECtHR"), relating to disciplinary proceedings against members of different professions. I am grateful to counsel for their considerable researches in this field. In Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 E.H.R.R.1 the applicants were suspended from practising medicine by a disciplinary tribunal of the Belgian Ordre des Médecins. The applicants alleged that they had not received the benefit of the procedural guarantees required by Article 6(1). In its Judgment the ECtHR recognised that disciplinary proceedings do not normally involve a dispute over civil rights and obligations. It indicated, however, that depending upon the circumstances of a particular case, such a dispute might arise (para. 42). Having considered the factual circumstances that applied to the applicants, the ECtHR held that a dispute did exist and that the dispute directly and decisively affected the civil rights and obligations of the applicants, in that their private rights to practise their profession as doctors had been interfered with (paras. 45 - 48). That Judgment was followed in Albert and Le Compte v Belgium (1983) 5 EHRR 533, in which Dr. Le Compte was joined by another applicant, who was also a Belgian medical practitioner. Both applicants had been suspended from practise for two years by Provincial Councils of the Ordre des Médecins. Those decisions were unsuccessfully appealed to the Appeals Council of the Ordre of Médecins and from that tribunal to the Court of Cassation, on a point of law. In Dr. Le Compte's case, the Appeals Council changed the sanction of two years suspension to one of striking Dr. Le Compte's name from the register of the Ordre. As in the previous case involving Dr. Le Compte, the issues which arose for decision by the ECtHR included whether the applicants were involved in disputes, which fell within the ambit of Article 6(1). The ECtHR held that they were (paras 27-29). The ECtHR stressed that the effect of the disciplinary sanctions imposed was to divest the applicants, temporarily in the case of Dr. Albert and permanently in the case of Dr. Le Compte, of the right to continue to exercise the medical profession, which right they had duly acquired and which right allowed them to pursue what the ECtHR described as the "goals of their professional life". In reaching that decision, the ECtHR had regard to the fact that in Belgium it was by means of private arrangements, with clients and patients, that doctors in private practice availed themselves of the right to continue to practise. Such arrangements were usually contractual. In these circumstances, the ECtHR held that the right to continue to practise medicine constituted in the case of the applicants a private right and thus a civil right, within the meaning of Article 6(1), notwithstanding the fact that the medical profession is a profession exercised in the public interest.
[36] Le Compte, van Leuven and De Meyere v Belgium and Albert and Le Compte v Belgium were followed by the ECtHR in Gautrin and Others v France (1999) 28 E.H.R.R. 221, which was another case involving members of the medical profession. The applicants in Gautrin were doctors, who were members of "SOS Médecins", an association whose object is to provide emergency medical services on call to patients. A number of complaints against the applicants were lodged with their professional disciplinary body, the Regional Council of the Ordre des Médecins. It was alleged that the applicants, by using blue flashing lights on their vehicles and displaying the name of their association, "SOS Médecins", on vehicles and other advertising materials, had contravened Article 23 of the Code of Conduct, which prohibits advertising. The complaints were upheld by the Regional Council. In respect of some of the applicants, short periods of suspension from practice were imposed. Other applicants were reprimanded. Appeals were taken to the National Council of the Ordre des Médecins, which upheld the findings of breach of the Code of Professional Conduct, but reduced the periods of suspension in certain instances, substituted reprimands for periods of suspension in other cases and in yet further cases substituted warnings for reprimands. In Gautrin, it was not disputed that Article 6(1) applied to the case. Nevertheless in its Opinion, the ECtHR referred to the existence of settled case-law that disciplinary proceedings can give rise to disputes as to civil rights within the meaning of Article 6(1), if what is at stake is the right of the individual being disciplined to continue to practise medicine as a private practitioner, (para.33).
[37] Turning to cases involving members of the legal profession, I should record that counsel for the petitioner referred me to H v Belgium (1987) 10 E.H.R.R. 339 and W R v Austria, 21 December 1999, European Court of Human Rights, Unreported. In both cases, the ECtHR relied upon its previous judgments in the cases involving Dr. Le Compte. And in both cases the ECtHR held that the applicant's right to practise as a lawyer was a civil right within the meaning of Article 6(1). In particular in WR v Austria, the ECtHR recalled the case-law to the effect that disciplinary proceedings give rise to disputes over civil rights within the meaning of Article 6(1), if what is at stake is the right to continue to exercise a profession. For that reason, the ECtHR held that the provisions of Article 6(1) were applicable to the disciplinary proceedings against the applicant.
[38] I turn now to consider the possible consequences for the petitioner of the disciplinary proceedings initiated against her. If the petitioner is found guilty of misconduct, her name may be removed from the part of the Register that relates to qualified nurses. Were that to happen, the petitioner would cease to be a "registered nurse", within the meaning of section 10(7) of the 1997 Act. Whilst she would be able to seek employment as an auxiliary nurse or health care assistant, the petitioner would no longer be able to undertake nursing duties reserved to registered nurses. She would no longer be able to undertake duties involving the prescription, supply and administration of medicines. The provisions of Section 58(1) of the Medicines Act 1968 (as amended by the Medicinal Products: Prescription by Nurses Act 1992) and The Prescription Only Medicines (Human Use) Order 1997, SI 1997/1830 and The Prescription Only Medicines (Human Use) Amendment Order 2000 SI 2000/1917, made under section 58(1), authorise certain registered nurses to prescribe, supply and administer specified medicines to patients. I understood it to be accepted on behalf of the respondents and the Secretary of State for Health that were the petitioner's registration to be removed, she would be excluded from such activities.
[39] Counsel for the respondents and the Secretary of State for Health also conceded that there are other areas of employment from which the petitioner would be excluded as a matter of law, were her name to be removed from the Register. Such areas are those in which particular nursing duties are restricted by statute to "registered nurses", within the meaning of section 7(7) of the 1997 Act. Miscellaneous examples drawn to my attention by counsel included the carrying out of "intimate searches", in terms of section 164 (as amended) of the Customs and Excise Management Act 1979 and section 4 of the Police and Criminal Evidence Act 1984, and the discharge of certain powers in relation to children, by virtue of the provisions of sections 45 and 102 of the Children Act 1989. The petitioner would also be excluded by law from serving on various statutory bodies such a community health councils, the National Boards for Nursing, Midwifery and Health Visiting for England and Wales and as a member of the respondents themselves.
[40] The petitioner would also be unable to seek employment with employers, who specify registration in terms of section 7 of the 1997 Act, as being a necessary qualification, even although there is no legal necessity for their doing so. Various NHS trusts, hospitals, nursing homes and others adopt such a policy, by resolving that the "nursing duties" they require should be only be carried out by registered nurses. Some employers adopt such a policy, even where the "nursing duties" in question could be undertaken by nursing auxiliaries or health care assistants.
[41] Removal of the petitioner's name from the Register would also exclude the petitioner from employment in nursing homes, which is currently open to her, whether in a self-employed capacity or as an employed person. That would arise by reason of the provisions of Regulation 10(2) of The Nursing Homes Registration (Scotland) Regulation 1990 (SI 1990/1310), to the effect that the "person in charge" of a nursing home, registered under the Nursing Homes (Scotland) Act 1938, must be a medical practitioner or qualified nurse, whose name in entered in the Register. I understand that the petitioner held such employment in 1997 and 1998, during the period covered by the charge of misconduct she faces. Moreover, even if the petitioner was to find employment in a nursing home as a health care assistant, the financial consequences for the petitioner of having her name removed from the Register could be considerable.
[42] In these circumstances, I am satisfied that were the petitioner to have her name removed from the Register, following upon a finding of misconduct against her, such a determination would exclude her from certain nursing posts as a matter of law. It would exclude her from other posts, on account of criteria imposed by prospective employers. It would render it difficult, if not impossible, for the petitioner to find any employment in the nursing field, involving the same duties and attracting similar earnings, to those associated with the range of employment, which is currently open to her as a registered nurse.
[43] In her submissions, senior counsel for the respondents did not challenge such an analysis of the consequences for the petitioner, in the event that her name is removed from the Register. Nor did counsel for either the Secretary of State or the Scottish Ministers. Nevertheless counsel for the respondents argued, with the support of counsel for the Secretary of State for Health, that removal of the petitioner's name from the Register would not constitute a determination of the petitioner's civil rights and obligations within the meaning of Article 6(1) of the Convention. It was argued that notwithstanding the removal of the petitioner's name from the Register, she could work abroad. She could also seek employment as health care assistant or possibly as a nursing auxiliary, undertaking work similar to that undertaken by at least some registered nurses. It was submitted that it would not be illegal for the petitioner to carry out some nursing work. In that respect her position would be different from the position of a "struck-off" lawyer or doctor, who is prohibited by law from carrying out any professional work in the field in which he practised, prior to his being disciplined. It was argued that registration was not a pre-condition to working in a nursing capacity. It was only a precondition to working as a registered nurse. In such circumstances, so the argument ran, the nursing profession was different from that of the professions of law and medicine. The factual circumstances of the petitioner could be distinguished from those of the medical practitioners in the cases to which I have referred.
[44] Having considered the substantial body of factual information, statutory references and legal authorities cited to me, I am persuaded that the submissions on behalf of the petitioner on this particular issue are to be preferred to those advanced on behalf of the respondents. In my opinion, having regard to the consequences for the petitioner that would follow, a decision to remove the petitioner's name from the Register would constitute a direct interference with her right to practise her chosen profession as a nurse. For all practical purposes, removal of the petitioner's name from the Register would prevent her from pursuing, at least within the United Kingdom, the career as a nurse, which her qualifications would otherwise entitle her to pursue. It is by seeking and undertaking employment, whether in terms of a contract of employment or in a self employed capacity, that individuals, with nursing qualifications pursue their careers in the nursing profession. The direct consequence of removal of the petitioner's name from the Register would be that she would be prevented from entering into private contractual arrangements, intended to earn her an income from nursing. For these reasons I am quite satisfied that the removal of the petitioner's name from the Register would constitute a determination of her civil rights and obligations for the purposes of Article 6.
[45] There are two other comments I would make in relation to this particular issue. During submissions, it was made clear on behalf of the respondents that having regard to the importance and potential significance of this issue, they wished to have the issue decided by the Court, rather than dealt with as a matter of agreement or concession. I can well understand why such a position was adopted. The issue is clearly an important one.
[46] Secondly I must make clear that in this Opinion I express no view on the question as to whether a decision by the PCC to caution a practitioner, as to her future conduct, would constitute a determination of the petitioner's civil rights and obligations within the meaning of Article 6(1). That issue was not fully explored in submissions before me. For the purposes of this Opinion, I proceed on the assumptions that such a decision would not constitute such a determination and would not prevent the petitioner carrying on her profession as a nurse. If any party wishes to challenge those assumptions at a later stage of these proceedings, then I can hear further argument on the factual and legal issues involved.
- If so, must the PCC meet all the requirements of an independent and impartial tribunal, within the meaning of Article 6(1)?
[47] If, as I have held, the disciplinary proceedings could lead to a determination of the petitioner's civil rights and obligations, the petitioner is entitled to "a ... hearing ... by an independent and impartial tribunal established by law"( Article 6(1)). Before me there was no dispute as to the general principles applicable in considering whether that entitlement has been met. Although there is considerable Strasbourg jurisprudence as to what that entitlement involves, it is convenient if I refer briefly to what was said in two recent Scottish cases, Starrs v Ruxton 2000 SC 208 and Clancy v Caird 2000 SLT 567. In Starrs the Lord Justice Clerk's Opinion at page 219 C-F, after quoting Article 6(1) contains the following passage:
"The discussion in this court was directed to both independence and impartiality. The court was referred to a number of decisions of the European Court of Human Rights and of the Commission. In Findlay v United Kingdom at para 73 the court stated that: 'In order to establish whether a tribunal can be considered as "independent", regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. As to the question of 'impartiality', there are two aspects to this requirement. First, the tribunal must be subjectively free from personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer guarantees to exclude any legitimate doubt in this respect'."
[48] Neither Lord Prosser nor Lord Reed demurred as to the accuracy of that summary of the principles applicable to determining whether the right to a hearing by an independent and impartial tribunal can be or has been met. At page 253 A-B, Lord Reed stressed that when considering the issue of impartiality under Article 6, a distinction falls to be drawn between the subjective test, in which the personal convictions or known interests of a judge in respect of a particular case, can be founded upon, as the basis for challenge in that given case, and the objective test, which is aimed at ascertaining whether the judge has offered guarantees sufficient to exclude any legitimate doubt in such respects.
[49] The approach taken by the members of the Court in Starrs as to the general principles applicable, when considering the right to an independent and impartial tribunal, was not challenged in any of the Opinions in Clancy. In Clancy each of the judges discussed those principles in slightly different terms, but there was no disagreement between them as to what those principles involve. What each of the judges in Clancy stressed, however, was that whilst the general principles remain constant, how they fall to be applied in a particular case varies, depending on the facts of the case under examination (see Lord Sutherland page 549 H-J, Lord Coulsfield at page 558 D and Lord Penrose 568 C-D)
[50] Counsel for the petitioner submitted that, in the circumstances of the present case, the petitioner's Convention rights included that the PCC must itself meet all of the requirements of an independent and impartial tribunal, with the meaning of Article 6(1). They argued that the right of appeal to the Court of Session, under the provisions of section 12 of the 1997 Act, was irrelevant to the question of whether the respondents had, by virtue of their decision of 12 October 2000, acted in a way incompatible with the petitioner's right to a determination by an independent and impartial tribunal.
[51] That argument founds on the precise terms of section 6(1) of the 1998 Act, which are that "It is unlawful for a public authority to act in a way which is incompatible with a Convention right". Counsel for the petitioner argued that section 6(1) falls to be construed as preventing the respondents from continuing with the proposed disciplinary proceedings, by reason of the fact the PCC does not, by itself, constitute "an independent and impartial tribunal" within the meaning of Article 6(1). On that assumption, they argued that it would be unlawful for the respondents to subject the petitioner to proceedings before the PCC, even if the section 12 right of appeal would entitle the petitioner to a full re-hearing of the case - in the event that a finding of misconduct was made against her and her name was removed from the Register.
[52] Under the Strasbourg jurisprudence the position in relation to tribunals charged with responsibility for disciplinary or administrative matters is quite clear. Where the decision of such a tribunal involves the determination of a dispute over civil rights and obligations, no violation of the Convention can be found in the proceedings before the tribunal, if the tribunal's decision is subject to subsequent control by a court that has full jurisdiction and does provide the guarantees required by Article 6(1) (see e.g. Le Compte, Van Leuven and De Meyere, paras. 50-51, Albert and Le Compte, para.29, Obermeier v Austria (1991) 13 EHRR 290, at 306, para.70, and Bryan v United Kingdom (1995) 21 E.H.R.R 342, at 349, para. 40). A passage from para. 51 of the ECtHR's judgement in Le Compte, Van Leuven and De Meyere sets out the position :-
"Whilst Article 6(1) embodies the 'right to a court' ... it nevertheless does not oblige the Contracting States to submit 'contestations' (disputes) over 'civil rights and obligations' to a procedure conducted at each of its stages before 'tribunals' meeting the Article's various requirements. Demands of flexibility and efficiency, which are fully compatible with the protection of human rights, may justify the prior intervention of administrative or professional bodies and, a fortiori, of judicial bodies which do not satisfy the said requirements in every respect; the legal tradition of many member States of the Council of Europe may be invoked in support of such a system."
A passage from para. 40 of the ECtHR's Judgement in Bryan is also frequently quoted:
" ... even where an adjudicatory body determining disputes over 'civil rights and obligations' does not comply with Article 6(1) in some respect, no violation of the Convention can be found if the proceedings before that body are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1)."
[53] In passing it should be observed, that cases like Le Compte, Van Leuven and De Meyere and Albert and Le Compte clearly illustrate that self-regulation of the professions can take place in a manner consistent with the provisions of the Convention.
[54] In argument the petitioner's counsel sought to analyse that Strasbourg jurisprudence as supporting the following proposition. In proceedings before the ECtHR, any failure on the part of a disciplinary tribunal to satisfy the requirements of Article 6(1) of the Convention, arising as a consequence of a lack of independence or impartiality, may be cured, if there is an appeal from that tribunal to a court, which does meet the requirements of Article 6(1). As it was put in submissions, the appeal to a court "purges" the original breach of the Convention for which the member State, as a contracting party to the Convention, would otherwise be liable. It was contended, however, that proposition has no relevance to the provisions of section 6(1) of the 1998 Act.
[55] I am not persuaded that the proposition, which the petitioner's counsel advanced, is a correct analysis of the jurisprudence to which I was referred, at least in so far as that jurisprudence relates to tribunals operating in the disciplinary and administrative fields. In my opinion, cases such as Le Compte, Van Leuven and De Meyere, Albert and Le Compte and Bryan establish that, as far as such tribunals are concerned, no breach of the Convention arises if the tribunal is subject to control by a court that has full jurisdiction and itself complies with the requirements of Article 6(1). In other words, when dealing with a disciplinary tribunal, such as the PCC, a right of appeal to a court of full jurisdiction does not purge a breach of the Convention. It prevents such a breach from occurring in the first place.
[56] Counsel for the petitioner acknowledged that their argument to the effect that the existence of the section 12 right of appeal should be left out of account was a novel one. That explained their inability to cite any authorities that supported or illustrated the argument. Indeed, they candidly recognised that various passages in textbooks and judicial opinions point in the opposite direction. In Lester and Pannick, Human Rights Law and Practise, 4.6.23, the authors write:
"Where a decision determinative of an individual's "civil rights and obligations" is taken by the executive, or by an adjudicatory body not complying with Article 6(1), the article requires (in accordance with the right to of access to a court) that the state provide a right to challenge the decision before a judicial body with full jurisdiction providing the guarantees of Article 6(1). If such an appeal is provided, there will be no violation of the article. In contrast where "courts of the classic kind" (rather than administrative tribunals) are concerned, Article 6 must be complied with at the first stage."
A passage in Clayton and Tomlinson, The Law of Human Rights, para. 11.304, is to similar effect:
" Frequently, a public authority cannot show that its internal procedures are "independent" because (for example, councillors decide entitlements to council benefits). It is submitted that in such circumstances a public authority under the Human Rights Act will not be acting incompatibly with Article 6 under section 6 of the Act even though a decision-maker himself does not meet the guarantees required by Article 6(1) in some respects; provided that decision maker is subject to a body exercising judicial control which has full jurisdiction and does provide the guarantees of Article 6(1)."
As Lester and Pannick point out, the position is different in relation to courts of law, which form part of the judicial system of a country, which is party to the Convention. Such courts, even of first instance, must provide the required guarantees of independence and integrity to comply with Article 6(1) (see De Cubber v Belgium (1985) 7 E.H.R.R 230, at 248, para. 32 and Findlay v United Kingdom (1997) 24 EHRR 221, para. 79) . As I have indicated, however, that is not the position before the ECtHR in relation to administrative and disciplinary tribunals.
[57] Moreover, the petitioner's counsel recognised that in cases which have arisen since the 1998 Act was enacted, courts in the United Kingdom have proceeded on the basis that the approach set out in para.40 of Bryan was of relevance when considering domestic tribunals in the United Kingdom. I refer, for example, to Stefan v General Medical Council [1999] 1 WLR 1293, at page 1299E-F of the Judgement of the Privy Council, delivered by Lord Clyde. In County Properties Limited v The Scottish Ministers 2000 SLT 965, Lord Macfadyen, in a passage at page 974 D-F of his Opinion, adhered to the view adopted in cases such as Albert and Le Compte and Bryan that, in the case of an administrative decision maker, compliance with Article 6(1) may be secured by the availability of a review of the decision, before a judicial body that has full jurisdiction and does provide the guarantees of the Article. In the circumstances of the planning case before him and in particular the limited scope of the right of appeal available in terms of section 58 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, Lord Macfadyen distinguished Bryan and held that the Convention rights of the petitioners had been infringed by the Scottish Ministers' decision to call in, for determination, the petitioners' application for listed building consent.
[58] In four more recent cases in England, (1) R v Secretary of State for the Environment Transport and the Regions, ex parte Holding and Barnes plc, (2) R v Secretary of State for the Environment Transport and the Regions, ex parte Premier Leisure, (3) R v Secretary of State for the Environment Transport and the Regions, ex parte Alconbury Developments Limited, and (4) Secretary of State for the Environment Transport and the Regions v Legal and General Assurance Limited, heard together before the Divisional Court, similar issues arose to those involved in County Properties Limited. The four cases raised questions as to whether the processes by which the Secretary of State for Environment Transport makes decisions under the Town and Country Planning Act and Orders under the Transport and Works Act 1992, the Highways Act 1980 and the Acquisition of Land Act 1981 are compatible with Article 6(1). In each case, it was necessary for the Court to examine the extent to which the Secretary of State's actings are subject to review by the Court. In their Judgement, which was handed down on 13 December 2000, at page 35, paras. 67and 68, Tuckey L.J. and Harrison J. referred to Albert and Le Compte and Bryan and the principle, which I have described by reference to para. 40 of the Court's Judgement in Bryan. Having noted that the principle has been accepted and applied by Lord Macfadyen, in County Properties Limited, Tuckey L.J. and Harrison J. recorded that the principle was not in issue before them. They, for their part, did not question that the principle fell to be applied.
[59] In my opinion the provisions of section 6(1) of the 1998 Act do not fall to construed as the petitioner's counsel contend. Section 6(1) does not accord the petitioner the right to have each stage of the disciplinary proceedings conducted before a Tribunal which meets all of the requirements of Article 6(1).Whilst the respondents are a public authority, for the purposes of section 6 of the 1998 Act, the terms of section 6(1) do not, in my opinion, require that the proceedings before the PCC be viewed in isolation. The decision, taken by the PPC on 12 October 2000, was intended to lead to the charge against the petitioner being determined by the PCC, subject to the petitioner's right of appeal under section 12 of the 1997 Act. When they took the decision of 12 October 2000, the members of the PPC knew that the right of appeal would enable the petitioner to appeal to the Court of Session against any decision by the PCC to remove her name from the Register.
[60] The decision that the petitioner attacks is the decision to hold a meeting of the PCC. That is the "act" of the public authority which is alleged to be unlawful, by reason of that "act" being incompatible with the petitioner's Convention right to a hearing before an independent and impartial tribunal. But on strict analysis, the scope or consequences of that decision are not limited to the holding of a meeting of the PCC. The decision taken by the PPC, in the name of the respondents, is that the petitioner be referred to the PCC, with a view to the PCC considering and reaching a decision as to whether the petitioner's name should be removed from the Register, in accordance with the statutory regime to be found in the 1997 Act, the 1983 Rules and the 1993 Order and subject to the petitioner's right of appeal, as provided for in section 12 of the 1997 Act. As a matter of law, any such decision by the PCC to remove the petitioner's name from the Register must be subject to the petitioner's statutory right of appeal to the Court of Session. Accordingly, in my opinion, the respondents' "act" does not fall to be viewed as one limited to referring the petitioner to the PCC. On the contrary, the "act" amounts to a decision to initiate disciplinary charges against the petitioner, to be determined by a procedure involving both a hearing before the PCC and a unqualified right of appeal to the Court of Session, in the event of the petitioner's name being removed from the Register by the PCC. In my opinion, that procedure should be viewed in its entirety. There is no necessity for the procedure to be viewed in separable and discrete parts. Domestic legislation does not require such an approach. Common sense does not suggest that such an approach would be appropriate. The Strasbourg jurisprudence points in the opposite direction. In my opinion, there is nothing in the terms of section 6(1) of the 1998 Act that requires such an approach to be followed. Nor do I find any ambiguity in the terms of section 6(1) of the 1998 Act. In my opinion, the reasoning of the ECtHR in its Judgment in Le Compte, Van Leuven and De Meyere, para. 51, which I have already quoted, is just as persuasive in a domestic context. I adopt it and apply it.
[61] In my opinion, the respondents' decision of 12 October 2000 would only fall to be categorised as incompatible with the petitioner's Convention right to a hearing before an independent and impartial tribunal, if the requirements of Article 6(1) would not be met, either in the proceedings before the PCC or in the course of any appeal under section 12 of the 1997 Act. In these circumstances, in considering whether the respondents have acted in a manner way that is incompatible with the petitioner's Convention rights, I am quite satisfied that the existence and scope of the right of appeal under section 12 of the 1997 Act must be taken account of. The petitioner's Convention rights do not require that the PCC itself be an independent and impartial tribunal, within the meaning of Article 6(1).
(c ) Would the proceedings before the PCC, subject to the section 12 right of appeal, constitute a determination by an independent and impartial tribunal within the meaning of Article 6(1)?
[62] Section 12(1) of the 1997 Act provides a right of appeal to any person aggrieved by a decision of the PCC to remove her name from the Register. In Scotland, that right of appeal is to the Court of Session, which "may give such directions in the matter as it thinks proper". In Carr v UKCC for Nursing, Midwifery and Health Visiting 1989 SLT 580, an Extra Division had occasion to consider the correct construction of section 13(1) of the Nurses, Midwifery and Health Visiting Act 1979, which was the statutory derivation of section 12(1) of the 1997 Act. In that case, the Court held that there were some limits as to the extent to which the Court as an appellate court, could interfere with the decisions of the Professional Conduct Committee of the then Council. Before me the parties were agreed that the decision in Carr is not binding upon me. That comes about by virtue of the provisions of section 3(1) of the 1998, which require me to construe primary legislation and subordinate legislation in a way which is compatible with Convention rights, so far as it is possible to do so. It was agreed by the petitioner's counsel, that when such an approach to construction is applied to the provisions of section 12(1) of the 1997 Act, the right of appeal to the Court of Session requires to be viewed as unrestricted. The terms of the sub-section would permit the Court of Session to allow a complete rehearing of any case, in which the PCC had decided that a practitioner's name should be removed from the Register. In these circumstances, the requirements of Article 6(1) would be met. Counsel for the respondents, the Secretary of State for Health and the Scottish Ministers argued that constituted a complete answer to the petition.
[63] In passing I should record that parties were agreed that section 12(1) of the 1997 Act would not provide any right of appeal to a practitioner against a finding of misconduct by the PCC, followed by the issuing of a caution as to future conduct (Rules 4 and 18(6) of the 1993 Rules). Nor would the provisions of section 12(1) of the 1997 Act provide a right of appeal against the issuing of a caution by the PPC (Rule 4 and 9(3)(c) of the 1993 Rules). Parties were agreed that a practitioner's only recourse against such rulings would be to seek judicial review in the Court of Session. Section 12(1) of the 1997 Act only applies, when a practitioner's name is removed from the Register, by decision of the PCC.
[64] During the hearing before me, parties were agreed that at this stage in the proceedings there should be no discussion as to the extent of the Court's powers, by way of judicial review proceedings, to review a decision to impose a caution. It should, however, be noted that the Answers lodged on behalf of the Secretary of State for Health contain averments that in such proceedings the Court "must endeavour to ensure compliance with Article 6". In the Answers it is averred, that in doing so, "the Court will require to consider issues of fact and proportionality to a greater extent than previously. That being so, judicial review provides the Court of Session with full jurisdiction in relation to a challenge to a caution imposed by the Professional Conduct Committee". It should be noted that in R v Secretary of State for the Environment Transport and the Regions, ex parte Holding and Barnes and others, a similar argument was advanced on behalf of the Secretary of State for the Environment Transport and Regions and rejected by the Divisional Court (paras. 100 - 101).
[65] In light of the agreement between the parties, I reserve my opinion on all issues relating to the scope for judicial review of a decision by the PCC to make a finding of professional misconduct against a practitioner and to issue a caution as to future conduct. As I have indicated previously, I also reserve my opinion as to whether a decision by the PCC to issue a caution, following upon a finding of misconduct, would constitute a determination of the petitioner's civil rights and obligations within the meaning of Article 6(1).
- Does the PCC meet all the requirements of an independent and impartial tribunal, within the meaning of Article 6(1)?
[66] Standing the views I have reached as to the relevance of the section 12 right of appeal, this question becomes academic. Nevertheless, in deference to the submissions I heard, I intend to make some observations on the issues involved. In seeking to challenge the independence and impartiality of the PCC, the petitioner founded upon a number of factors, which I summarise under the following headings:
- The PCC does not have an appearance of independence and impartiality .
[67] Under this heading, the petitioner's counsel founded on the fact that the members of the PCC are either council members of the respondents or drawn from the two panels appointed by the respondents. Whilst the Secretary of State has a statutory involvement in the appointment of individuals to serve as members of the respondents, once they have been appointed, it is for the respondents themselves, albeit acting through an official, to determine which of their number should sit on the PCC. Likewise when non-council members are appointed from the two panels, it is for the respondents, through one of its officials, to decide which non-council members should sit on the PCC, at a particular disciplinary hearing.
(ii) Lack of separation between the variety of the respondents' functions.
[68] Under this heading, which could be viewed, as being closely connected to the previous heading, the petitioner's counsel founded on the various functions that the respondents and its individual members carry out. Reference was made to the respondents' statutory duties to establish and improve standards of professional conduct for nurses. Individual members of the respondents are involved in defining and promoting standards, which members of the nursing profession, such as the petitioner, are expected to adhere to. The respondents as a body, acting through their officials and the solicitors appointed by them, have a responsibility for investigating allegations of misconduct made against nurses on the Register. Individual members of the respondents, sitting as members of the PPC, take part in the investigation of complaints of misconduct against individual nurses. Members of the respondents, sitting as members of the PPC, are also involved in deciding whether individual nurses should be prosecuted before the PCC. The prosecution of individual nurses before the PCC, on charges of misconduct, takes place in the name of the respondents. Individual members of the respondents, sitting as members of the PCC, require to deciding whether disciplinary charges against individual nurses have been established. In the event that such a charge is established, the individuals sitting on the PCC decide what penalties to impose. The petitioners' counsel stressed the fact that the PPC and the PCC do not have fixed memberships. During their terms of office, individual members of the respondents sit on both committees, albeit not in respect of the same case. The petitioner's counsel contended that the multiplicity of roles gives rise to concern that individual members of the respondents, sitting on the PCC, are, or certainly could be, faced with conflicts of interest.
(iii) Conflict of interests for individual members of the PCC.
[69] The petitioner's counsel argued that grounds for concern exist that similar conflicts of interests might confront those members of the PCC, who are drawn from the panel comprised of those nominated by consumer organisations in the fields of health and social care. The contention was that such individuals might reasonably be perceived to have "axes to grind", on behalf of the particular organisations to which they belong or on behalf of particular sections of the community or interest groups, with which their organisations are associated.
(iv) The role of the legal assessor to the PCC.
[70] I have ready referred to the statutory basis for the appointment of a legal assessor to the PCC and the Rules, set out in the 1983 Order, with which the assessor must comply. Under reference to Stefan v General Medical Council [1999] 1 WLR 1293, the petitioner's counsel argued that the PCC's independence and impartiality were compromised by the fact that the legal assessor has, what they described, as an advisory role.
(v) The role of the respondents' officials.
[71] Finally reliance was placed on the fact that, because the role of the respondents' officials in disciplinary proceedings is unclear, it might be possible for individual officials to be involved, in one way or another, on the different occasions when a particular case was discussed initially by the PPC and subsequently by the PCC. It was submitted that such concern was illustrated, in the present case, by the fact that the letters dated 12 November 1999 (no. 6/1 of process - informing the petitioner that the PPC had decided to start proceedings against her) and dated 12 October 2000 (no 7/1 of process - containing the Notice of Inquiry requiring the petitioner to appear before the PCC) were both signed by the same official. The first letter had been signed on behalf of the Acting Director of Professional Conduct. The second letter was signed on behalf of the Director of Professional Conduct. As I have recorded earlier, there are occasions when officials attend meetings of the PPC and the PCC.
[72] Under reference to the various points summarised under headings (i) - (v) the petitioner argued that the PPC, by virtue of its composition, its relationship to the respondents, its procedure and the multiplicity of roles of the respondents could not and does not constitute an independent and impartial tribunal, meeting the requirements of Article 6(1). The PCC does not present an appearance of independence. It does not offer sufficient guarantees to exclude legitimate doubts about its impartiality.
[73] As I have indicated, it is not necessary for me to express any concluded views on the issues involved in this branch of the petitioner's case. However, as I have indicated, I did hear detailed submissions on these issues. Moreover counsel for the respondents indicated that any comments I might have, as to the current composition and procedures of the PCC, "would be gratefully received". In these circumstances, it is appropriate that I briefly set out my provisional views on the arguments advanced by the petitioner, as to why the PCC does not constitute "an independent and impartial tribunal" for the purposes of Article 6(1). I intend to do so under reference to headings (i) to (v). In doing so, I proceed on the basis that I should have regard to the procedures actually followed by the respondents and the PCC, as a matter of convention, and not just to the statutory provisions with which the respondents and the PCC must comply. Such an approach not only accords with common sense. It is, I believe, the approach that any objective observer would adopt in considering whether a particular tribunal is independent and impartial. The procedures the respondents currently require the PCC to follow might change in the future. I do not consider, however, that it would be realistic to approach the question, as to whether a particular tribunal meets the requirements of Article 6 (1), solely by reference to the statutory provisions which regulate the constitution and procedures of the tribunal in question. To be an independent and impartial tribunal established by law, a tribunal may require some statutory foundations. It may also require to abide by procedures, laid down in primary and secondary legislation. In my opinion, that does not preclude the tribunal in question from adopting additional procedures, which the tribunal considers are appropriate to enable it to meet the requirements of Article 6(1), and from founding upon such procedures, in the event that its independence and impartiality are challenged in a court of law. Any other approach would mean that on every occasion a court of law refines what the requirements of Article 6(1) involve, a tribunal, such as the PCC, might require to await a change of the statutory provisions pertaining to it, before it could successfully resist a legal challenge to its independence and impartiality.
[74] The factors summarised under headings (i) and (ii), as relied upon by the petitioner, can profitably be considered together. They raise difficult questions. The respondents, as a Council, undoubtedly carry out a number of statutory functions. That involves individual members of the respondents undertaking a variety of activities. Individual members take part in council meetings of the respondents, at which the development and implementation of new standards of training and professional conduct are debated and decided upon. Acting with individuals drawn from the panels, they sit as members of the PPC, investigating complaints against nurses and deciding whether individual nurses are to be prosecuted before the PCC. As I have already noted, such prosecutions take place in the name of the respondents. Individual members of the respondents also sit on the PCC, where they must comprise the majority of the committee's membership. As members of the PCC, sitting with those drawn from the panels, they decide whether charges of misconduct against individual nurses have been established. In the event that a finding of professional misconduct is made against an individual nurse, the PCC must decide what penalty is to be imposed.
[75] "Independence", in the context of a professional disciplinary body adjudicating upon the prosecution of a member of its profession, must involve the disciplinary body in question being independent from both parties to the particular case - the prosecutor and the member of the profession, who faces a charge of professional misconduct. The Commission decisions of Wickramsinghe v United Kingdom (1998) EHRLR 338 and Stefan v United Kingdom (1998) 25 EHRR CD 130, which were cited to me, are recent illustrations of how it is appropriate to apply the principles I discussed earlier, under reference to Starrs and Clancy. In other words, regard should be had to the manner of appointment of the members of the disciplinary body and to their terms of office, to the existence of guarantees against outside pressures and to the question whether the disciplinary body in question presents an appearance of independence. This includes having regard to the procedural guarantees that the disciplinary body offers. In the absence of any contention that there is evidence of any actual impartiality on the part of the members of the PCC (whose identities are at this stage unknown), the existence of impartiality falls to be assessed against the objective test, that is to say whether the PCC offers guarantees sufficient to exclude any reasonable doubt in this regard.
[76] In the present case, the respondents, whose submissions were adopted on behalf of the Secretary of State, found upon a number of factors as demonstrating the independence of the PCC and indeed its impartiality. Many of these factors arise out of the provisions of the 1997 Act and the 1993 Rules. Members of the respondents are appointed by the Secretary of State and serve terms of office of five years. Panel members, who serve on the PCC, are appointed for three year periods. It is only in exceptional circumstances that such terms of office and appointment are not served in full. It is quite clear that as a matter of law, individual members of the respondents cannot be peremptorily removed from membership, by a vote of other members of the respondents. Whilst panel members, who sit on the PCC, may not enjoy any security of tenure as such, there was no evidence before me to suggest that when such individuals are appointed for a three year term, they do not remain a member of the panel to which they have been appointed, unless for personal reasons, such as illness, it is necessary that the term be cut short. On the other hand, there is no obligation upon the respondents to ensure that all of the individual members of their council and all members of the two panels are asked to sit from time to time on the PPC or the PCC.
[77 ] The respondents also founded upon Strasbourg jurisprudence to the effect that where disciplinary proceedings against a professional person are to determined by a body composed, in whole or in part, by members of the same profession, that by itself does not warrant the disciplinary body being described as lacking independence. That is so even where the disciplinary body is a Council elected by the members of a particular profession, which regulates a number of functions relating to that profession, including the disciplinary function (see H v Belgium, para. 50 and Le Compte, Van Leuven and De Meyere, para. 50).
[78] The respondents also founded on the fact that if the hearing before the PCC were to proceed, no member of the PCC will have had any previous involvement with the petitioner's case, whether as a member of the PPC or otherwise. Members of the PCC have no financial interest in the outcome of any particular case. They sit on the PCC unpaid and as a matter of public service. Membership of the PCC offers no avenue for career advancement. The respondents also stressed that the administrative official of the respondents, who convenes disciplinary hearings before the PCC and who selects those who will constitute the PPC at such hearings, has no involvement with or interest in the outcome of individual disciplinary cases. Nor does he have any role to play at hearings before the PCC.
[79] Counsel for the respondents pointed out that, in advance of the hearing before the PCC, the petitioner will be provided with precise details of the charge that she faces. She has the right to legal or lay representation before the PCC. Turning to what will happen at the hearing itself, the respondents founded upon the fact that an adversarial procedure will be followed, as set out in the 1993 Rules. The case against the petitioner will be presented, in the name of the respondents, by "the solicitor". The petitioner has the right to be present, whilst that occurs. She has the right to cross-examine any witness giving evidence against her and the right to lead evidence in her defence. Members of the PCC will not be provided with any information about the deliberations of the PPC concerning the petitioner. The hearing will take place in public. Throughout their proceedings and deliberations, the members of the PCC will be advised by an independent legal assessor, who has no interest in the outcome of proceedings. Whilst officials of the respondents, serving the PPC and the PCC (referred to in the 1993 Rules as "the Council's Officer"), may be present during hearing before the PCC, such officials will play no part in the hearing and will not retire with the members of the PCC, during their deliberations. The decision of the PCC will be announced in public. Reasons will be given for that decision.
[80] In my opinion that list of statutory requirements and procedural guarantees is substantial. The question is whether the guarantees are sufficient to dispel any objectively based concerns as to a lack of independence and impartiality on the part of the PCC - concern arising as a consequence of the matters founded upon by the petitioner's counsel, under headings (i) and (ii). Before I express my views on that question, I should comment briefly about the points raised under the other headings.
[81] The first of these relates to the possibility of non-council members of the PCC being faced with a conflict of interests (heading (iii)). In the United Kingdom, it is not unusual for the disciplinary bodies of independent professions to contain "lay members". They are so described because they do not have any qualifications of the profession in question. That is not to say that such individuals are without relevant qualifications and experience. On the contrary, it is because of their qualifications and experience in other fields, legally separate from, but in many instances not unconnected with, the profession in question, that they are selected to serve in the capacity that they do. Far from rendering such individuals unsuitable, their professional qualifications and experience in other areas are why such persons are appointed to serve on the disciplinary tribunals of professions, other than their own. Their qualifications and experience, when linked to their independence from the profession in question, are on reason why such individuals make a very valuable contribution to self-regulation of the professions. In general, there is no reason to believe that such lay members of disciplinary bodies discharge there duties in anything other than a responsible manner - as individuals, independent of the profession in question, but also acting independently of any professional body, employment or other organisation, in which they may be involved.
[82] Against that background, the fact that a non-council member of the PCC may be a member of another profession, whose members practise in areas closely related to those of the nursing profession, does not in my opinion provide any objective basis for concern as to the impartiality of the PCC. Nor would any such concern arise merely because such an individual might be associated with a consumer organisation in the fields of health and social care. No doubt, on occasion, such organisations find themselves involved in controversial issues or political campaigns about health and care issues, where their views may be at odds with those of the Government of the day, professional bodies and other organisations. In the event that was to occur, it is conceivable that a particular disciplinary case might arise, in which it would be inappropriate for a non-council member, associated with a particular organisation, to serve. In such a situation, the non-council member would require to disqualify herself from the PCC, for the case in question. In the present case, however, no such specific concern is raised, whether in relation to a particular non-council member or any of the consumer organisations from whom one of the panels of non-council members might be drawn. It must also be borne in mind that by virtue of the provisions of section 10(5) of the 1997 Act, the PCC is only quorate if a majority of those present are members of the respondents. In these circumstances, I do not consider that there is any substance in a challenge made to the independence and impartiality of the PCC, insofar as that challenge is based on the involvement in the PCC of non-council members drawn from consumer organisations in the fields of health and social care.
[83] Equally, in my opinion, there is no substance in any challenge based on what was said to be the limited role for the legal assessor (heading (iv)). That challenge was supported by reference to short passages in the two decisions of the European Commission of Human Rights, Wickramsinghe v United Kingdom and Stefan v United Kingdom, to which I have previously referred. In both cases, the Commission, when expressing its opinion that the deliberations of the Health Committee of the General Medical Council did not have the appearance of independence, required by Article 6(1), founded upon the fact that the legal assessor was apparently given no role whatever in the deliberations of the Health Committee in disciplinary proceedings. For that reason, in the Commission's opinion, the legal assessor did not constitute a sufficient guarantee of independence. Whatever may have been the role of the legal assessor to the Health Committee of the General Medical Council, the legal assessor to the PCC has a clearly defined role to play. That role is set out in the 1983 Order. I have summarised that role previously (see para. [25] above). Whilst the legal assessor does not have any role in the taking of decisions by the PCC, it would be wrong of him to assume one. His role is to advise the decision-makers, not to usurp or improperly influence their functions. In these circumstances, I consider that the legal assessor plays as full as role as one could expect or wish any legal assessor to undertake.
[84] Likewise, I am not persuaded that there is any substance in the criticism founded upon the role of the respondents' officials (Heading (v)). It is not immediately apparent why correspondence relating to the affairs of the PPC is handled by the office of the Director of Professional Conduct, whose officials also handle correspondence on behalf of the PCC. Nevertheless, such officials play no part in the hearing before the PCC nor, more importantly, any part in the deliberations of the PCC. As from 3 November 2000, none of the respondents' officials have retired with the members of the PPC and been present during their deliberations. If the hearings before the PCC are public, then the respondents' officials have as much right to be present, as anybody else. In such circumstance I do not consider that the role played by the officials of the respondents in the conduct of disciplinary proceedings, has any bearing on whether the PCC complies with the requirements of Article 6(1).
[85] Returning to the factors raised by the petitioner under headings (i) and (ii), I should make clear that I have not found the issues involved straightforward. Having considered the submissions I heard, I have reached the view that there is some basis for objective concern as to the independence and impartiality of the PCC. Had it been necessary for me to decide whether the PPC, viewed on its own, would constitute an independent and impartial tribunal, meeting all the requirements of Article 6(1), I would have found for the petitioner on that issue. In my opinion, the fact that the same individuals sit on both the PPC and the PCC is the factor of greatest significance. I accept, of course, that no individual member of the respondents takes part in the consideration of any particular case by both the PPC and the PCC. I accept that will not occur in the petitioner's case. Nevertheless I consider that any objective observer would consider it unusual that those involved, from time to time, in the taking of decisions to initiate disciplinary proceedings against members of a profession, are also involved, at other times, in adjudication upon such proceedings. The fact that the same individuals can move backwards and forwards between these two roles, throughout their terms of office, is of particular significance. There is also the point that it lies within the discretion of the respondents to determine whether all individual members of the respondents and of the two panels are actually invited to sit on the PCC. Whilst an official arranges who actually sits on the PCC , when the committee is hearing disciplinary cases, there is no guarantee that all of the individual members of the respondents and the panels will actually be invited to sit from time to time.
[86] The provisions of section 10 of the 1997 Act require that both the PPC and the PPC should be composed, in part, by individual members of the respondents. There is, however, no statutory bar to the respondents resolving that individuals, whether they be individual members of the respondents or panel members, may not serve on both the PPC and the PCC. No reason was suggested why the same individuals require to sit on both committees. There is no obvious reason why they should do so. As was mentioned during argument, the statutory disciplinary regime, to which enrolled solicitors in Scotland are subject, places the prosecutorial function upon the Council of the Law Society of Scotland (section 51 of the Solicitors (Scotland) Act 1980). The membership of the Scottish Solicitors' Discipline Tribunal must include a number of enrolled solicitors (Schedule 4 to the 1980 Act). By convention, as I understand it, members of the Council of the Law Society do not sit as members of the Tribunal. In that profession, accordingly, the objective of achieving the involvement of practising solicitors in the disciplinary body is met, whilst avoiding any overlap between those involved in the prosecutorial and adjudicatory functions.
[87] Where the same members of the respondents and the same panel members are serving on both the PPC and the PPC (albeit not in connection with the same cases), there is in my opinion an objective basis for concern that members serving on the PCC will take into account, even if only sub-consciously, their knowledge and experience of the current practices and policies of the PPC, as to when to commence prosecutions, influenced as those practices and policies may be, at least to some extent, by the policies of the respondents as a council. A further basis for concern is that prosecutions before the PCC take place in the name of the respondents. Moreover, a hearing before the PCC of a charge of misconduct may involve considering the extent to which the practitioner concerned has complied with a Code made by the respondents. In my opinion, such factors detract from the PCC having an appearance of independence. Likewise, I consider that they give rise to concerns as to the PCC's impartiality. If the position of the PCC fell to considered in isolation, I do not consider that the concerns would be met by the guarantees upon which the respondents found, such as the fact that the prosecution case is presented to the PCC by the solicitor, the detailed nature of the adversarial procedure, as set out in the 1993 Rules, the giving of reasons by the PCC and the role of the legal assessor.
[88] In expressing these views, I take account of what was said in the Judgments of Elias J and Rose LJ in another case involving the respondents, namely United Kingdom Central Council for Nursing v Brabazon-Drenning, Unreported, 31 October 2000. That case was an appeal under section 12 of the 1997 Act, at the instance of a "registered nurse", whose name had been removed from the Register for an unspecified period of time, by a decision of the PCC. In that appeal one issue raised was whether the nurse had received a hearing before an independent and impartial tribunal, within the meaning of Article 6(1). The appeal was successful on other grounds. On the ground of appeal relating to the alleged lack of an independent and impartial tribunal, the Court appears to have received much less detailed submissions than were presented to me. The two members of the Court expressed provisional views rejecting that ground of appeal. For the reasons I have sought to express, I take a different approach.
Summary
[89] In summary, accordingly, I have reached the view that the disciplinary proceedings against the petitioner could lead to a determination of her civil rights and obligations, within the meaning of Article 6(1). I also hold that the petitioner's right of appeal to the Court of Session, in terms of section 12 of the 1997 Act, ensures that any decision to remove her name from the Register would be one in which the determination involved had been made in accordance with procedures which meet the requirements of Article 6(1). As agreed at the conclusion of the hearing before me, I shall arrange for the petition to be put out By Order, for a discussion as to further procedure.