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Cite as: [2009] ScotCS CSIH_3, 2009 GWD 3-55, 2009 SLT 169, 2009 SC 248, [2009] CSIH 3

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Wheatley

Lord Clarke

Lady Cosgrove

[2009] CSIH 3

XC59/08

OPINION OF THE COURT DELIVERED BY LORD CLARKE

APPLICATION FOR LEAVE TO APPEAL UNDER SECTION 11 OF THE TRIBUNAL AND INQUIRIES ACT 1992

In the causa

BRIAN KELLY

Appellant;

against

SHETLAND HEALTH BOARD

Respondent:

_______

Act: Party

Alt: Khurana; Scottish Health Service, Central Legal Office

15 January 2009

[1] On 16 January 2008 an Extra Division of the Inner House quashed a decision of the National Health Service Tribunal, dated 5 January 2007 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 sub-paragraph (d) of sub-section (8) of section 29 of the National Health Service (Scotland) Act 1978 as amended. The interlocutor of the Extra Division remitted the case to the National Health Service Tribunal to consider anew the question of disposal of the matter that had been before them, in the light of such further submissions as the appellant or the respondent might wish to make in particular in relation to the question of conditional disqualification.

[2] The appellant is a qualified optometrist who from 1985 provided services as an ophthalmic optician in Lerwick, Shetland, to National Health Service patients. In June 2005 the respondents made representations to the National Health Service Tribunal which alleged inter alia that between April 1995 and about December 1999 the appellant 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 Scheme operated by the respondents, by securing or trying to secure a financial benefit for himself and a firm to which he knows he and they were not entitled. The Tribunal, by their decision of 8 January 2007, after a hearing at which the appellant was legally represented, upheld certain representations made to them by the respondent about the appellant's conduct. At paragraph 95 of its decision on the matter of the Tribunal was to the following effect:-

"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 Extra Division considered a number of attacks upon the Tribunal's decision by the appellant, to the effect that the Tribunal had failed to take into account, in reaching their decision, a number of mitigating relevant factors. The Extra Division, however, did not consider that there was merit in these attacks. Another line of attack was, however, advanced by the appellant. This related to the fact that the Tribunal did not provide any reasons, apparently, for considering that conditional disqualification of the appellant in terms of the 1978 Act could not be an appropriate disposal of the matter.

[4] Disposal of matters such as that dealt with by the Tribunal, in the present case, is covered by section 29 of the National Health Service (Scotland) Act 1978. It provides inter alia, as follows:-

"S 29...

(2) If the Tribunal receive from a Health Board representations that a person -

(a) who has applied to be included; or

(b) who is included

in any list meets any of the conditions for disqualification, the Tribunal shall inquire into the case.

...

(6) The first condition for disqualification is that the inclusion or continued inclusion of the person concerned on the list would be prejudicial to the efficiency of the services which those included in the list -

(a) in relation to a list referred to in sub-section (8)(a), perform:-

(b) in relation to a list referred to in sub-section (8)(d), undertake to provide or are approved to assist in providing.

(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.

(7A) The third condition for disqualification is that the person considered is unsuitable (by virtue or professional or personal conduct) to be included or to continue to be included in the list.

(8) A 'list' means-

(a) a list of health care professionals of a prescribed description performing primary medical services;

(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 (in each case) under or by virtue of this Part or Part 1 of this Act

...

(10) Detriment to a health scheme includes detriment to any patient of, or, person working in, that scheme or any person liable to pay charges for services provided under that Scheme.

(11) Cases in which representations are made that the first condition for disqualification is met are referred to below as efficiency cases; cases in which representations are made that the second condition for disqualification is met are referred to below as fraud cases and cases in which representations are made that the third condition for disqualification is met are referred to below as unsuitability cases".

[5] Section 29B of the 1978 Act which is headed "Powers of NHS Tribunal" is to the following effect.

(1) Sub-section (2) applies where the Tribunal are of the opinion-

(a) on inquiring into an efficiency case, that the person meets the first condition for disqualification;

(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.

(5) The disqualification under this section shall have effect when the case is finally concluded.

(6) If a person is disqualified for inclusion in any list prepared by a Health Board, the Board must not enter him on the list and (if he is already included on the list) must remove him from the list".

[6] Section 29C of the Act is headed "Conditional Disqualification Etc". It provides inter alia as follows:-

"(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-

(a) removing any prejudice to the efficiency of the services in question;

(b) preventing any acts or omissions within section 29(7)(a);

(i) performs, undertakes to provide or assist in providing only services specified (or of a description specified) in the condition;

(ii) undertakes an activity (or course of activity) of a personal or professional nature, or refrains from conduct of a personal or professional nature, so specified (or of a description so specified), (as the case may be)

(iii) Conditions so imposed shall have effect when proceedings of the case are finally concluded.

(4) Section 29B(4) applies to a conditional disqualification as it applies to a disqualification.

(5) The Tribunal may by directions -

(a) vary the terms of service of the person subject to the inquiry (including the terms imposed by regulations under this Part);

(aa) vary any requirements to which the person subject to the inquiry is subject under or by virtue of Section 17F, 17P or 17X of this Part.

(b) confer functions on any Health Board, for the purpose of or in connection with the imposition of any conditions by virture of this section... ".

[7] The Tribunal, in the present case, held that, to use the language of section 29(11) of the Act a fraud case had been made out against the appellant. The Extra Division pointed out that in those circumstances, in terms of the relevant legislation, three options were open to the Tribunal as regards disposal of their jurisdiction namely disqualification of the appellant, conditional disqualification of the appellant or a decision not to disqualify in the circumstances. The Extra Division also noted that it was accepted that, in his closing submission, the appellant's agent specifically requested that any disqualification order, if it was to be made, should be conditional. In the foregoing circumstances, the Court was of the view that the possibility of conditional disqualification was one of the substantial questions in issue for determination by the Tribunal. In that situation, the Court opined

"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 (sic) 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".

It was for that reason, and on that basis, that the Extra Division pronounced the interlocutor in the terms it did, as set out above.

[8] It should be noted, at this stage, that the procedure to be followed by the Tribunal in such a case, as the present, is covered by, inter alia, regulation 21 of the National Health Service (Tribunal) (Scotland) Regulation 2004/38 (Scottish SI). Regulation 21 is, inter alia, to the following effect:

"Statement By The Tribunal

(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 any of the conditions for disqualification, the disqualification (including any conditional disqualification) as it makes under section 29B(2) of the 1978 Act.

...

(2) Where the Tribunal makes a conditional disqualification, the statement referred to in paragraph (1) shall set out the conditions which are imposed on the respondent and any directions made by the Tribunal under section 29C(5) of the 1978 Act..."

[9] In response to the Extra Divisions' interlocutor, the Tribunal reconvened and heard representations, on behalf of the parties, at a hearing on the 20 February 2008 at which both the appellant and the respondents were legally represented. The Tribunal thereafter issued the decision dated 27 March 2008 against which the appellant appeals.

[10] The Tribunal records, at paragraph 6.1, of their Supplementary Statement that the submission made on behalf of the appellant was that the appropriate disposal in respect of the complaint against him should be a conditional disqualification. At paragraph 6.2 to 6.9, certain points of mitigation are recorded as having been put forward on the appellant's behalf. At paragraph 6.9 the following submission is recorded:

"That this Tribunal should consider a conditional disqualification on the basis that Mr Kelly undertook to apply for inclusion in a list of those approved to assist in the provision of services by those ophthalmic medical practitioners and opticians who have undertaken to provide general ophthalmic services under arrangements with Greater Glasgow and Clyde Health Board in terms of Regulation 6 of the National Health Service General Ophthalmic Services (Scotland) Regulations 2006/135 and that Mr Kelly would be prepared to restrict himself to working for one Health Board only viz Greater Glasgow and Clyde; this would permit Mr Kelly to carry out work to National Health Service patients under the supervision of a principal, as a locum or in some such similar capacity, and of the Board"

At paragraph 7 of the Tribunal's decision, the submissions made on behalf of the respondents are noted. At paragraph 7.1 it is noted as follows

"The decision to make an immediate disqualification was appropriate and just. The nature of Mr Kelly's deceit, the length of the deceit and the mechanism by which it was ultimately discovered (on a detailed examination of Mr Kelly's records) were cumulatively sufficient to justify an immediate disqualification".

At paragraphs 7.2 to 7.4 submissions regarding the conduct of the appellant particularly during the Tribunal proceedings are set out. At paragraph 7.5 the Tribunal records that it was submitted, on behalf of the respondents, that

'The nature of Mr Kelly's evidence in the course of the Hearing was such as to draw the reasonable inference that any condition that might be applied by the Tribunal would not be adhered to'.

[11] The Tribunal, at paragraph 8, then turned to set out their decision. In doing so, they record as follows:-

"This Tribunal is cognisant of the gravity of the effect an immediate disqualification will have on Mr Kelly. It will, in essence, deprive him of his livelihood. We are fully aware of the consequences Mr Kelly's behaviour has had on him as we acknowledged in paragraph 94 of our original Statement. Our considered decision is that conditional disqualification is not appropriate in the circumstances of this case for the following reasons"

At paragraph 9 the Tribunal refers to the content of the evidence given by the appellant to the Tribunal at the previous Hearing and his manner of giving it. They note "We felt that throughout Mr Kelly's evidence was hesitant, evasive, contradictory and unreliable" At paragraph 10 the Tribunal notes a submission made by counsel for the respondents to the effect that any condition to be imposed in light of section 29(7)(a) and (b), would require to have "considered whether the act or omission complained of is likely to be prevented by such a conditional disqualification"(sic). Counsel apparently went on, as recorded, to submit that

"the act or omission in this case was either a positive act on Mr Kelly's part in defrauding the Board in the knowledge of the Regulations or Mr Kelly's failure to read and understand and apply the Regulations that he was working under on (ie an omission). Whether or not he was intending to work under supervision or as a locum was not going to address either of these problems".

The Tribunal do not, in their decision, say what they made of this observation, and, in particular, whether they accepted it or rejected it. The Tribunal go on to state:-

"We were concerned as to what the incentive to him might be were Mr Kelly to be restricted in terms of a conditional disqualification and we were satisfied that a locum working in a particular area would be more valued if more services were provided as the income to the business flows from the voucher scheme. There were difficulties in policing it".

We pause to observe at this stage that no specification is given as to the difficulties which the Tribunal envisaged would arise if a conditional disqualification was imposed. Far less is there any reference to any evidential basis for holding that view. The Tribunal goes on to state that:

"Mr Khurana made the point that anyone who has committed a fraud as a practitioner could merely just work as a locum and potentially earn as much. In addition there was no guarantee that Mr Kelly would restrict himself to merely one Health Board standing his past dishonesty. We feel that the conditions suggested on Mr Kelly's behalf do not address the problem".

Once again it is not immediately apparent to the Court as to what 'problem' the Tribunal is referring to at this point in their decision. At paragraph 11 the Tribunal revisit the nature of the conduct involved on the part of the appellant and state "we are of the firm view that where there is dishonesty and intention that places an offender within the highest level of culpability". They also state that the appellant had placed in him a great deal of trust by the respondent which he had breached.

At paragraph 13 the Tribunal observe:-

"We were not apprised of any mitigating factors of any moment other than the fact that the sum of £12,400 had been repaid and which appears to have been an arrangement come to between Mr Kelly's representatives and the Procurator Fiscal; as a result the Procurator Fiscal deserted the charges against Mr Kelly pro loco et tempore but reserving the Board's right to seek recovery of the unpaid balance of approximately £16,600 and which has not been recovered".

The Tribunal's conclusion at paragraph 14 is recorded as follows:

"In all the circumstances we consider that the Board's submissions were well founded and that a conditional disqualification is entirely inappropriate and that immediate disqualification is not excessive, unjust or wrong in principle"

[12] In his written application to this Court the appellant attacks the Tribunal's decision on, inter alia, the following grounds:-

"The Tribunal failed to give proper consideration to conditions which could have been imposed so as to protect the position of a Health Board. It incorrectly held that any condition could not be policed. Such an assertion was not justified on the evidence. A condition could have been imposed such that the respondent undertook to restrict himself to assisting in the provision of services by those ophthalmic services (sic) under arrangements with [a Health Board] in terms of regulation 6 of the National Health Service (General Ophthalmic Services) (Scotland) Regulations SSI 2006/135. Having regard to the terms and operation of the regulations on the 1978 Act as amended there was no reason to suppose that such a condition could not have been "policed".

2. The Tribunal was not entitled "to be satisfied that a locum working in a particular area would be more valued if more services were being provided as the income to the business flows from the voucher scheme". There was no evidence that would be the case. On the contrary an optometrist registered under Part 1 of paragraph 6 of the Regulations would have every incentive to ensure that the Regulations were complied with.

3. The proposition "that anyone who has committed a fraud as a practitioner could merely just work as a locum and potentially earn as much" is irrelevant and in any event incorrect.

4. The Tribunal erred in holding that "there was no guarantee that Mr Kelly would restrict himself to merely one Health Board standing his past dishonesty". Any employer could check whether he was registered with any given Health Board. Unless he was so registered no payment would be received for any work carried out.

5. The Tribunal's statement at paragraph 11 in relation to the level of culpability is inconsistent with its statement in its original decision, in paragraph 94, that the amount obtained "was not one on a grand scale". Further it has placed excessive weight upon the conduct of his defence as opposed to the character of the conduct complained about".

[13] In addressing the Court the appellant submitted that the Tribunal's decision was defective in that it provided no reason, far less good reason, for their assertion that a conditional disqualification could not be readily policed. There had been no evidence before the Tribunal to support such a contention. The system regulating payments to opticians had been computerised, with each registered optician having a dedicated number within that system, so that policing for claims for payment was more effective than before. The appellant accepted that it would be open to the Tribunal to impose a condition that he might only work under supervision. But, in any event, what he had proposed was that he would work simply as a salaried employee, as a locum, and as such would have no direct financial interest to inflate the earnings of any firm in which he was employed in such a capacity. The Tribunal had failed to give any adequate or proper reason for ruling out a conditional disqualification as being appropriate in this case.

[14] Counsel for the respondent, in reply, stressed that the Tribunal had found the appellant an incredible and unreliable witness. The whole system of registered opticians depended on trust. The appellant had been guilty of a serious breach of that trust. The computerised system, referred to by the appellant for dealing with claims for payment, was not a fullproof safeguard against someone determined to make fraudulent claims for payment. What was meant by the Tribunal, at paragraph 10 where they stated "we were satisfied that a locum working in a particular area would be more valued if more services were being provided as the income of the business flows from the voucher scheme", was that the appellant working as a locum, might still have an incentive to produce fraudulent vouchers, to inflate the apparent significance of his contribution to the practice's fortunes, and that would stand him in good stead if he sought additional or alternative employment from another practice. Counsel for the respondent accepted that there was no evidence before the Tribunal that a locum could earn as much as a self employed practitioner as recorded by the Tribunal at paragraph 10. Counsel, furthermore accepted that, in any event, even if that were the case, that would be an irrelevant consideration as regards the issue which the Tribunal had to determine. Reference was made to Section 29C2(b) of the 1978 Act which, as has been seen, provides a condition may be imposed with a view to "preventing any acts or omissions within Section 29(7)(a)". A condition obliging the appellant to act only as an employed locum, with or without supervision, could not, it was asserted, be seen to meet that statutory objective. The basis for that assertion appeared to be that the appellant had been guilty of a serious breach of trust. We were invited to refuse the appeal.

Decision

[15] The sole question for us, at this point in these proceedings, is to determine whether or not the Tribunal properly carried out the directions of the earlier decision of the Extra Division by providing adequate reasons for their decision as to the appropriate disposal in this case and, in particular, reasons for rejecting the contention that a conditional disqualification was appropriate in the appellant's case. At the outset we note that the Tribunal in question has a legal chairperson and it falls to be regarded as a specialist Tribunal, which would have specialised knowledge of the working and operation of this branch of the Health Service. It has, as has been seen, an express statutory duty to make findings of fact and to set out the conclusions it has arrived at. We are satisfied that it also has a duty to provide intelligible and adequate reasons for its conclusion when dealing with the substantive questions in issue before it. As Lord President Emslie put matters in the case of Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at page 348 "The decision must, in short, leave the informed reader and the Court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it". It is of importance to observe that Lord President Emslie, in that dictum, referred to the need for both the informed reader, and the Court, to be left in no real and substantial doubt as to what were the reasons for the decision and what were the material considerations involved. That double requirement as to the audience for the reasons, has been reinstated in subsequent cases eg. Safeway Stores PLC v The National Appeal Panel 1996 SC 37 at page 41 per LJC Ross. More recently, the speech of Lord Brown of Eaton-under-Heywood, in the case South Bucks District Council and Another v Porter (No.2) [2004] 1 W LR 1953 at 1964 has provided authoritative guidance as to the basis for a reasons challenge and, while that guidance was given in the context of planning law, it has since been applied, with approval, in other fields of administrative law. In the passage in question from his speech, Lord Brown, inter alia said "The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need only refer to the main issues in the dispute, not to every material consideration".

[16] Applying those statements of principle to the decision of the Tribunal in the present case, with which we are concerned, we have come to the conclusion with, we have to say, some reluctance that the Tribunal have failed to meet the requisite standard in formulating their decision in the way they have. In the first place this Court, in reading the Tribunal's decision, at least without the aid of counsel for the respondents, was left in a real doubt as to the reasons for the decision and what were the material considerations which were taken into account in arriving at the decision in respect of conditional disqualification. Secondly, we would make the following observation. It is not, in our opinion, the function of the Tribunal to seek to punish persons such as the appellant. That is a matter for the criminal prosecution system. The Tribunal's function is rather one of balancing both the interests of the public in relation to the proper operation of the Health System and the interests of persons such as the appellant in pursuing his professional career. Thirdly, it is quite clear that the statutory scheme involved does not exclude the possibility of a conditional discharge being an appropriate disposal of a case even in fraud cases and where there has been a serious breach of trust, that is to say the Tribunal are not fettered in the exercise of their discretion, in that respect by the language of the statute and they should not fetter that discretion themselves by some pre-determined, though perhaps unstated, attitude which has that effect.

Having regard to those considerations we are left with a significant question as to what relevant reasons, if any, there were in the mind of the Tribunal in reaching the decision it did. We are particularly concerned about the apparent dismissal of the possibility of a conditional disqualification by the brief remark at paragraph 10 "There were difficulties in policing it". It is not clear to us whether, at that point, the Tribunal is simply recording a submission made by counsel for the respondent or stating their own thoughts on the matter. If it was intended to be a reason adopted by the Tribunal for rejecting outright the possibility of a conditional disqualification, then we consider it is inadequate, since neither the informed reader nor the Court is left with any explanation as to why, and in what respects, "policing" might be difficult and, secondly, why such difficulties could not be met by appropriate further conditions. The language of the relevant statutory provisions, in our judgement, clearly gives the Tribunal wide powers as to conditions that might be imposed. It is, in our view, all the more important that a reason of that sort, if it is to be one of the reasons for the Tribunal's decision is evidence based, and that some reference is made to the evidence which supports it. A matter of such significance should not, in our view, be left simply on the basis of an assertion. If the legislation contemplates, as it does, conditional disqualification as one of the means of disposal of such a case, it is for the Tribunal, when that has been proposed to it as a suitable means of disposal, to address carefully the factual and legal reasons which point against it, if that is the conclusion that they choose to arrive at.

[17] The possible reason given in the poorly drafted sentence at paragraph 10 commencing with the words "We were concerned" left the Court with serious doubt as to its meaning and purpose. Even after the explanation given by counsel for the respondent in relation to it, we were not satisfied that it could be said to have involved the Tribunal having given proper regard to the objectives of the legislative provisions. We have already noted that counsel for the respondents accepted that any suggestion that the appellant working as a locum might earn as much as a self employed practitioner was not evidence based and, in any event, was an irrelevant consideration, a concession which in our view, he was correct to make.

[18] Perusing the rest of the decision as carefully as we can, and bearing in mind that Tribunals in such cases are, of course, entitled and indeed encouraged, to give their reasons shortly and succinctly, we have been able to discern only one further basis for the Tribunal's decision and that is their understandable concern about the breach of trust of which the appellant pled guilty. We have no difficulty in seeing that as a relevant fact for the Tribunal to take into account in reaching its conclusions. Bearing in mind, however, that, as we have already said, it is not the Tribunal's function to punish the appellant, but rather to carry out the balancing exercise we have referred to above, having regard to the purpose of the legislative provisions as a whole, and the scope of Section 29C in particular, we are not satisfied that the decision provides adequate and intelligible reasoning as to why a conditional disqualification was ruled out in this case. We must stress that we are not saying that there could not be appropriate reasons in this case for reaching such a conclusion. We are, however, saying that the reasons given by the Tribunal, in so far as we have been able to identify them, are not free from doubt and in our view, are not adequate or sufficiently intelligible. Accordingly, and regrettably, particularly having regard to the length of time that the proceedings have already taken, we reach the conclusion that the Tribunal must be directed to apply their mind, once again, to the question of appropriate disposal in this case and to set out clearly their reasons in support of their conclusion in that respect, after having heard parties further on the matter, and following the directions which this Court and the other Extra Division have given. The appeal is, accordingly, allowed and the Tribunal's decision quashed. The case will be remitted to the Tribunal to consider, of new, the question of the appropriate disposal in this case.