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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Kingarth
Lord Eassie
Lady Paton
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XA27/07
OPINION OF THE COURT
delivered by LORD KINGARTH
in
APPEAL
in the cause
BRIAN KELLY
Appellant;
against
SHETLAND HEALTH BOARD
Respondents:
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Act: Party Litigant
Alt: Khurana; Scottish Health Service Central Legal Office
16 January 2008
[1] The
appellant, who is a qualified optometrist, engaged from 1985 onwards, in partnership
with his wife under the firm name of B & C Kelly, in providing services as
an ophthalmic optician in Lerwick, Shetland to National Health Service patients. Whilst so engaged he was, and required to be,
on a list kept by the respondents of ophthalmic opticians undertaking to
provide general ophthalmic services to such patients in their area. Similar lists are kept by other Health Boards
throughout Scotland.
In June 2005 the respondents made representations to the National Health
Service Tribunal, constituted under section 29(1) of the National Health
Service (Scotland) Act 1978 (as amended) (the "1978 Act"), which alleged inter alia that between April 1995 and
about December 1999 the appellant had made a substantial number of false and
inaccurate claims on forms submitted to the respondents in respect of the
provision of spectacles to patients, and that by his actions he had caused or
risked causing detriment to the National Health Service scheme operated by the
respondents, by securing or trying to secure a financial benefit for himself
and the firm to which he knew he and they were not entitled.
[2] Following an
inquiry held on various dates in March and June 2006 (in the course of which
the appellant and the respondents were at all times legally represented) the
Tribunal, on 8 January 2007, issued their decision in the form
of a Statement, with reasons. At
paragraph 95 thereof the ultimate decision is recorded as follows:
"The Tribunal constituted under and
in terms of Section 29(1) of the National Health Service (Scotland) Act 1978
(as amended) ('the 1978 Act') being of the opinion that the Respondent, Mr
Brian Kelly, has by acts or omissions caused or risked causing detriment to a
health scheme by securing or trying to secure for himself or B&C Kelly
Opticians a financial or other benefit to which he knew that he and/or they
were not entitled FIND accordingly that the condition stipulated in sub-section
7 of Section 29 of the 1978 Act has been met and therefore in terms of sub-sections
2(a) and 2(b) of Section 29B of the 1978 Act DISQUALIFY the said Brian Kelly
from inclusion in (1) the Shetland Health Board's list of medical practitioners
and ophthalmic opticians undertaking to provide and of persons approved to
assist in providing general ophthalmic services and (2) all lists within
sub-paragraph (d) of sub-section (8) of Section 29 of the 1978 Act."
[3] The appellant
has appealed on a point of law to this court under section 11(7)(b) of the
Tribunals and Inquiries Act 1992. Before
us he represented himself. The
respondents were represented by Mr. Khurana, who had appeared on their behalf
before the Tribunal.
[4] Although
there was some initial uncertainty, it was ultimately a matter of agreement
between the parties before us that the statutory provisions relevant to the
Tribunal's determination were those to be found in the 1978 Act as amended,
with effect from 1 April 2006, by section 26 of the Smoking, Health and Social
Care (Scotland) Act 2005.
[5] Section 29 of
the Act, as thus amended, provides, so far as relevant:
"(2) If
the Tribunal receive from a Health Board representations that a person -
...
(b) who
is included
in any list meets any of the
conditions for disqualification, the Tribunal shall inquire into the case.
...
(7) The
second condition for disqualification is that the person concerned-
(a) has
(whether on his own or together with another) by an act or
omission caused, or risked causing,
detriment to any health scheme by securing or trying to secure for himself or
another any financial or other benefit; and
(b) knew
that he or (as the case may be) the other was not entitled
to the benefit.
...
(8) A
'list' means-
...
(d) a
list of medical practitioners and ophthalmic opticians undertaking to provide,
and of persons who are approved to assist in providing , general ophthalmic
services; or
prepared ... under or by virtue of this
Part or Part 1 of this Act
...
(11) ...
cases in which representations are made that the second condition for
disqualification is met are referred to below as fraud cases ... ".
[6] Section 29B
of the Act, as thus amended, (headed "Powers of NHS Tribunal") provides, so far
as relevant:
"(1) Subsection
(2) applies where the Tribunal are of the opinion-
...
(b) on
inquiring into a fraud case, that the person meets the second condition for
disqualification;
...
(2) The
Tribunal shall disqualify him for inclusion in-
(a) the
list to which the case relates;
(b) all
lists within the same paragraph of subsection (8) of section 29 as that list ...
(4) The
Tribunal shall not make a disqualification under this section if they are of
the opinion that it would be unjust to do so ... ".
[7] Section 29C
of the Act, as thus amended, (headed "Conditional disqualification etc")
provides, so far as relevant:
"(1) The
functions of making disqualifications under section 29B include making a
conditional disqualification, that is, a disqualification which is to come into
effect only if the Tribunal determine (on a review under section 30) that the
person subject to the inquiry has failed to comply with any conditions imposed
by them.
(2) Conditions
may be imposed by virtue of subsection (1) with a view to-
...
(b) preventing
any acts or omissions within section 29(7)(a);
...
(4) Section
29B(4) applies to a conditional disqualification as it applies to a
disqualification.
... ".
In terms of section 30 the Tribunal have power to review any
disqualification or conditional disqualification when requested to do so by the
person disqualified or conditionally disqualified or by any Health Board.
[8] The Regulations
which governed the procedures of the Tribunal were, it was agreed, the National
Health Service (Tribunal)(Scotland) Regulations 2004. Regulation 21 thereof provides:
"(1) As
soon as may be practicable after the conclusion of an inquiry in relation to
representations, the Tribunal shall prepare a statement under the hand of the
chairman of the Tribunal who presided over the inquiry stating-
(a) its
findings of fact;
(b) the
conclusions which it has reached;
(c) where
it is of the opinion that the respondent meets the first or second condition
for disqualification, the disqualification (including any conditional
disqualification) as it makes under section 29B(2) of the 1978 Act; ... ".
[9] In this
appeal no issue is taken by the appellant with the Tribunal's primary findings
in fact nor with their determination that in the result he met the second
condition for disqualification referred to in section 29(7) of the Act. In summary, the critical findings (in part
based on an extensive Joint Minute of Agreement) were that on a substantial
number of occasions between April 1995 and December 1999 the appellant had, at
the same time as, or shortly after, dispensing pairs of spectacles to children,
dispensed spare pairs of spectacles to which the patients were not entitled
under the National Health Service Regulations, and that the appellant's firm had
submitted post-dated forms seeking payment therefor which falsely claimed
payment for repairs or replacements. It
was found that the sum inappropriately obtained by the appellant's firm was
£29,398.30 of which the appellant had repaid £12,460, leaving a balance of
£16,938.30.
[10] In relation to
the question of disposal the Tribunal say (at paragraph 94):
"Disposal has caused us some
difficulty. We are aware that Mr Kelly's
marriage has broken down but it may be that Mr Kelly's behaviour contributed to
this break down. We believe there are
presently proceedings for divorce. We
are aware that he has lost his business in Shetland. We were advised that he was sequestrated in
January 2006. He currently works as a
locum in a peripatetic fashion through the central belt of Scotland.
We accept that the fraud which he has committed is not one on a grand
scale; he had a turnover of
approximately £400,000 per annum and the fraud extends to approximately £6,000
per annum during the course of the period.
Nevertheless, a fraud is a fraud.
It is indisputable that this is a personal tragedy for Mr Kelly and
whilst we are sympathetic with his circumstances, we cannot escape the fact
that whilst further punishment may be personally tragic for him, nevertheless
the message has to go out to other professionals in the NHS that such activity
can not be condoned and shall not be tolerated."
[11] Although earlier
in the statement the Tribunal record at some length submissions made on behalf
of the appellant in relation to the merits (in paras. 74 to 82), the only
record of submissions relating to the question of disposal is to be found in
the latter part of paragraph 83. It is
there said:
"We were being asked to look at
documentation over ten years old. In
January 2006 Mr Kelly was sequestrated and there was also the present
proceedings. He had the stress of the
police enquiry, the criminal proceedings, his marriage breakdown and his
'losing' his business."
The reference to criminal proceedings is to proceedings
brought against the appellant in 2004 in respect of his actions in this matter;
proceedings which, it is understood,
were deserted pro loco et tempore.
[12] Before us the
appellant advanced essentially two broad arguments in support of his appeal.
[13] In the first
place, he submitted that the Tribunal had erred in that they failed to take
into account (or to show that they had taken into account) (a) that the last
fraudulent act took place over seven years beforehand, (b) that there was no
evidence that he had been involved in any fraudulent claims since, (c) that he
had repaid £12,460, and (d) that there was no element of risk to public health
involved in his actions. He advised us
in relation to (b) that until 2004 he had continued to work in his own practice,
and that although thereafter he had worked as a locum, in which capacity his
work for other practices was confined to prescribing as opposed to dispensing,
he had made it his business to check that no false claims were made in claim
forms prepared and submitted by the practice in question. It was his recollection that this had been
drawn to the attention of the Tribunal on his behalf.
[14] Secondly, the
appellant submitted that the Tribunal had erred in a number of respects in
relation to the question of possible conditional disqualification. In evidence he had indicated that he would be
willing as a relevant condition to work only as an employee under supervision. His agent had specifically represented to the
Tribunal at the end of the hearing, under reference in particular to that
evidence, that any disqualification should be a conditional disqualification
only. The Tribunal erred in failing to
take account of this submission, or at least failed in the reasons given to
explain what, if anything, was made of it.
Further, in all the circumstances (including the matters referred to in
the preceding paragraph), the decision of the Tribunal to disqualify absolutely
under section 29B was unreasonable.
[15] On behalf of
the respondents Mr. Khurana was unable to accept that factors (a), (b), (c) and
(d) referred to at paragraph [13] above had been specifically mentioned in
submission. No submission referring to
these matters is recorded at paragraph 83.
He did accept, however, that a submission had been made that any
disqualification should be conditional only, although his recollection was that
it was not made with any precision as to the condition or conditions which
should be imposed. In any event, it
could not be inferred in relation to any of the matters to which the appellant
made reference that the Tribunal had ignored them. Nor could it be said that the Tribunal
required to make specific reference to them.
The decision made it clear that the reason for the disposal was that
fraud was involved, notwithstanding any mitigatory factors. The decision could not be said to have been
unreasonable.
[16] We are not
persuaded there is any merit in the first of the broad arguments advanced by
the appellant. His work as a locum is
specifically mentioned at paragraph 94.
While it is true that none of the remaining matters referred to by him are
expressly mentioned in that paragraph, we see no reason to infer from the decision
as a whole that the Tribunal failed to take account of them. Whether they were specifically mentioned in
submission or not, all of them were entirely obvious matters arising from the
facts which the Tribunal had found. Nor,
in our view, in giving its reasons (or stating its conclusions) was the
Tribunal obliged to record every mitigatory factor which might have had a
bearing on the disposal chosen.
[17] We have come
to the view, however, that there is more force in certain aspects of the second
of the appellant's broad arguments. This
related to the question of potential disposal by way of conditional
disqualification. Our concern does not
relate to the submission that the decision to disqualify unconditionally was
unreasonable. In particular, we are not
persuaded that it could be said that no Tribunal acting reasonably could have
done other than impose a conditional disqualification at most. Equally, it is not a necessary inference from
the absence in paragraph 83 of reference to the submission relating to
conditional disqualification, or from the absence of any other reference to
conditional disqualification, that the question of potential disqualification
was ignored. But assuming it was
considered our concern relates to the adequacy of the reasons given. In terms of the legislation conditional
disqualification was one of three options open to the Tribunal in the
circumstances - disqualification, conditional disqualification or no
disqualification at all. Further,
although there is some doubt as to the precise terms in which it was made, it
is accepted that in his closing submissions the appellant's agent specifically
asked that any disqualification be conditional.
In these circumstances, this could be said to have been one of the
substantial questions in issue for determination by the Tribunal. Notwithstanding that, there is no mention
anywhere of what, if anything, the Tribunal made of it. Instead, to use the language of the
well-known test, the informed reader and the court is left in real and
substantial doubt as to what the Tribunal's reasons were for rejecting the
submission which was made. In this
respect the Tribunal can, in our opinion, be said to have erred in law.
[18] In these
circumstances we shall allow the appeal and quash the decision of the Tribunal
in so far as (and only in so far as) it disqualified the appellant from
inclusion in (1) the respondents' list of medical practitioners and ophthalmic
opticians undertaking to provide and of persons approved to assist in providing
general ophthalmic services and (2) all lists within subparagraph (d) of
subsection (8) of section 29 of the 1978 Act.
We shall remit to the Tribunal to consider anew the question of disposal,
in the light of such further submissions as the appellant or the respondents
may wish to make, in particular in relation to the question of conditional
disqualification.
