SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Menzies Lord Marnoch	[2012] CSIH 101 XA12/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in the Appeal by BRIAN KELLY Appellant; against SHETLAND HEALTH BOARD Respondents: _______________

Act: Party

Alt: P M Stuart; Scottish Health Service Central Legal Office

28 December 2012

Procedural Background

[1] This is the third appeal by the appellant against decisions of a National Health Service Tribunal, constituted under section 29 of the National Health Service (Scotland) Act 1978, disqualifying the appellant from inclusion in the respondents' list of medical practitioners and ophthalmic opticians. The initial complaint against the appellant stems from June 2005, when the respondents alleged that, between April 1995 and December 1999, the appellant had made a substantial number of false and inaccurate claims for payment. An inquiry into these claims was held by the Tribunal in March and June 2006 and, ultimately, on 5 January 2007, the Tribunal found that the appellant had "by acts or omissions caused or risked causing detriment to a health scheme by securing or trying to secure for himself [or his firm] a financial or other benefit to which he knew that he and/or they were not entitled". The nature of the appellant's activities was that he operated a system within his firm whereby spare pairs of glasses were provided, especially to children, and claimed for by post-dated forms which described the spare pairs as legitimate repairs or replacements. In consequence of this fraudulent scheme, the appellant had obtained £29,398.30 to which he was not entitled. By the time of the Tribunal hearing he had repaid £12,460, but there was a balance of £16,938.30 remaining outstanding.

[2] Having made these findings, the Tribunal were left to determine disposal. In terms of section 29B of the 1978 Act, they were bound to disqualify the appellant from the lists unless they were of the opinion that "it would be unjust to do so". However, by virtue of section 29C of the 1978 Act, the disqualification could be conditional; meaning that it could be made to come into effect only if the appellant failed to comply with certain conditions imposed upon him by the Tribunal relative to his continued practice as an optometrist. In the result, the Tribunal imposed disqualification simpliciter, reasoning that, despite the appellant's personal problems and the fact that the fraud extended to "only" £6,000 per annum out of a turnover of £400,000:

"Nevertheless, a fraud is a fraud. It is indisputable that this is a personal tragedy for [the appellant] 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".

[3] The appellant did not, and does not, challenge the findings of the Tribunal in relation to the merits of the allegations. He did, and does, challenge the disposal. Following an appeal, an Extra Division quashed the disqualification ([2008] CSIH 7) on the basis that the Tribunal had not provided adequate reasons for rejecting the appellant's submission that any disqualification ought to have been conditional. In reaching this decision, the Division expressly stated that they were not suggesting that disqualification simpliciter was not an option; merely that inadequate reasons had been given. The Division remitted 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".

[4] On 20 February 2008 the Tribunal reconvened and heard further representations. It was suggested by the appellant that a conditional disqualification could be imposed whereby he would be included on a Health Board list as a person approved to assist ophthalmic medical practitioners and opticians. The respondents argued to the contrary that the nature of the appellant's deceit was such that only an unqualified disqualification was appropriate. The Tribunal determined that the nature of the appellant's testimony in the course of the original hearing had been such as to give rise to the reasonable inference that any conditions which might be attached to a disqualification would not be adhered to by the appellant. Notwithstanding the appellant's personal circumstances, on 27 March 2008 the Tribunal again decided that conditional disqualification was not appropriate.

[5] On appeal an Extra Division held (2009 SC 248) that the Tribunal had again failed to give adequate reasons. Particular focus was placed on a remark by the Tribunal that one of the reasons for not applying a conditional disqualification was that "there were difficulties in policing it". It was not clear to the Division whether this remark was a record of a submission or a statement of fact. There was also concern that it was not explained why policing would be difficult. Once again, the Division was keen to stress (para 18) that they were not suggesting that an unqualified disqualification was necessarily inappropriate; merely that the reasons for imposing it had not been adequately expressed. Accordingly the court quashed the new decision and remitted "to the tribunal to consider, of new, the question of the appropriate disposal".

The New Hearing
[6] The procedure which followed upon this interlocutor is striking. It is reasonable to suppose that its length and complexity could not have been anticipated by the Division when remitting for reconsideration only the matter of disposal. At the time, it might have been thought that such a reconsideration could have been concluded well within the space of one day. The Tribunal reconvened to hear submissions on 1 April 2009. At that hearing the appellant asked the Tribunal to "recuse" itself (ie to decline jurisdiction) and to remit the matter to a differently constituted tribunal, whose members had had no prior involvement in the case. This was not a matter which had been raised before either Extra Division. It was not suggested that the members of the Tribunal were in fact biased. The submission made was that there was a reasonable apprehension that the Tribunal may have "subconsciously pre-judged the issue before it". There was, it was said, a danger that the Tribunal might "cynically reach the same conclusion as before by approaching the case with a closed mind and finding adequate reasons to justify such a conclusion". Reference was made to Sinclair Roche & Temperley v Heard (No. 1) [2004] IRLR 763, in which an Employment Appeal Tribunal had set out six factors to be considered in determining whether a case should be remitted back to the same, or to a fresh, tribunal. The Tribunal were referred to, and took cognisance of, the test of the fair minded and informed observer in Helow v Secretary of State for the Home Department 2009 SC (HL) 1. They took the view that it was in the interests of justice that they continue to adjudicate upon the matter. They had, as a starting point, the terms of the interlocutor from the Division, which had remitted the case back to the Tribunal without qualification. The Tribunal did not take the view that this meant that it was obligatory for them to reconsider the matter, as distinct from a differently constituted body, but they did consider that they had a discretion to determine whether they should continue or not. They expressed the view that they could approach the issue of disposal objectively and without preconception, having regard to the fact that it was agreed that the previous ex parte submissions and the extent of the evidence base had been insufficient to permit a proper judgment to be formed and that there would thus require to be further evidence and submissions before any reconsideration could take place.

[7] The decision to proceed was contained in a formal order of the Tribunal dated 19 June 2009. At a further procedural hearing on 5 August 2009, the Tribunal appointed the respondents to lead such further evidence as to disposal as they considered appropriate. They declared that, thereafter, the onus would shift onto the appellant to show that it would be unjust to disqualify him either at all or conditionally. Notwithstanding that the issue related solely to disposal following a determination of the merits, the case was set down for a 4 day "proof" in November 2009, although this was later altered to February 2010 for certain reasons relating to the availability of parties, their legal representatives and witnesses. At the beginning of that hearing, the Tribunal noted that the appellant accepted that the statutory ground for disqualification had been made out (although this appeared to have been evident at a much earlier stage) and appointed him to prepare a statement-of-facts, which the respondents could answer, thereby creating a framework within which any testimony to be adduced on the issue of disposal could take place. This apparently sensible procedural decision was to have significant, and presumably unintended, consequences in terms of time and effort.

[8] The statement-of-facts produced by the appellant contained a contention that, since the end of the period during which the frauds were perpetrated (December 1999), the appellant had provided ophthalmic services "in an entirely satisfactory manner". This provoked a substantial counter from the respondents to the effect that, since 2005, the appellant had practised as an optometrist in a Health Board area whilst knowing that he was not entitled to do so because he was not on the relevant list. It was said that the respondent had knowingly submitted inaccurate information when applying for inclusion on at least one list and that he had delayed, and in some cases failed, to respond to requests for reasonable information from at least one Health Board. He had failed to comply with certain provisions of new regulations for general ophthalmic services which had been introduced in 2006. He had stated to various practice managers or owners that he was eligible to work as a locum with them when he knew that that was not true. He had sought payment for local services, provided by him, by way of a cheque made payable to his son.

[9] The content of these new allegations, contained in this response, resulted in a prolonged evidential hearing. The evidence commenced on 10 February 2010 with a relatively short examination-in-chief of the appellant. It was followed by at least 3 days of cross-examination and thereafter at least one day of re-examination!

[10] On the fourth day of the hearing, the appellant was still being cross-examined. At the start of the day, the respondents had sought to ascertain from him whether he had become aware of the terms of new National Health Service (General Ophthalmic Services) (Scotland) Regulations 2006, coming into force in or about April 2006 and, if so, whether he had read these Regulations. The following exchange, commencing with an apparently straightforward question, occurred:

"Q Did you read the part of those Regulations relating to locum work?

A I do not recall specifically reading that, no.

Q When you say you don't recall does that mean you did or you did not read them?

A I think I gave my evidence, and I am having difficulty remembering dates at all. I may have read it but I may not have read it".

After a number of related questions, which span some 10 pages of transcript, and during which the initial question remained unanswered, the respondents returned to the 2006 Regulations and specifically to the basis upon which the appellant seemed to think that he could work in certain Health Board areas without being duly listed. The appellant gave an explanation that he considered that he had "grandfather" rights in areas where he had previously worked and did not require to be re-registered. On this basis the questioning continued as follows:

"Q So can I take it that by that stage, mid-2007, that you had not read the 2006 GOS Regulations?

A Again I can't say specifically I had or I hadn't.

Q Well, let's just talk about provision in relation to locums, had you read the 2006 GOS Regulations as they applied to locums, just those provisions?

A At that time in 2007 I had just been informed by the Tribunal of their decision to disqualify me, I had just suffered a fairly significant loss in terms of my partner's father died, I explained in my evidence I was very close to, I had to move house twice in a period of 3 months, sorry, one, two, three houses in two months. Yet again I found myself in a position of having lost everything that I owned, I left with again nothing. I was going through an incredibly difficult period at the time, so much so that I was actually staying in a house without any electricity for about a week. I do not recall reading the Regulations in that period of time.

Q ... so are you saying from mid-December 2006 to the end of February 2007 you didn't read the Regulations during that time?

A No, that's no what I said. I just said I was going through a very difficult period of time and I don't recall what I did read and what I didn't read, it could have been longer ... I have subsequently spoken to two psychiatrists and they both tell me that these gaps ... in fact two psychiatrists, one professionally and two on a non-professional basis and they have explained to me that this type of memory loss is not unreasonable. I am increasingly concerned about it I have to say.

Q Is it possible you did not read the Regulations?

A Yes, it is possible I did not but I can't say I didn't, sorry."

The exchange continued in relation to the appellant's knowledge of the Regulations, which required him to retrain in certain respects. Again, several pages of the transcript later, the matter resumed as follows:

"Q Do you recall receiving the 2006 GOS Regulations round about the end of March, the beginning of April 2006?

A No I don't.

Q Do you recall receiving them at any point thereafter?

A No I don't.

Q Can I ask you again, is that recollection of you not receiving them, or you just don't know?

A I just don't know.

Q If you had received them would you have read them?

A I suspect I would have looked at them, yes.

Q Would you have read the bits that applied to locums?

A Again I suspect yes.

Q Would you agree you ought to have read the bit that applied to locums?

A I ought to have done lots of things, but yes.

Q Well, let's just talk about that one thing, do you agree as a locum optometrist you ought to have read the 2006 Regulations as they applied to locums?

A Yes.

Q At the time they came out?

A Yes.

Q And you were aware that they were coming out, prior to 1^st of April 2006?

A I knew the system was changing, I didn't know the Regulations were going to come out, I mean, I had no knowledge of that. I knew the system was changing but I didn't know, I'm not a lawyer, I didn't know that they had to be backed up by new Regulations per se, I mean, I wasn't wandering around thinking all the time, I wonder when those new Regulations are going to come out.

Q Well, with respect ..., you can't wander about thinking when the new Regulations are going to come about when your view is you don't know that there are going to be any Regulations?

A Well, that's right.

Q So which is it?

A Sorry, it didn't occur to me that new Regulations would be drafted.

Q So are you seriously saying that as of April 2006 it did not occur to you that new Regulations would be drafted?

A I think I explained ... I was going through a breakdown.

Q Can you just answer the question?"

[11] At this point the appellant's counsel intervened, stating: "Well, with respect he is, Mr Chairman, he is attempting to answer the question". The chairman replied "Well he isn't actually, it seems to me he is prevaricating. If you would answer the question put to you ... that would be helpful". The appellant's counsel asked for a "moment" and the chairman said that he could and that he could take a note of "it". He continued: "I don't think he is answering the question and I think the question was quite clear and I do not think that the witness is answering the question as put". The appellant's counsel asked the chairman: "Did you indicate Mr. Chairman that the witness was prevaricating, just so I can be sure?" The chairman replied: "Yes, that was the word I used".

[12] Upon the questioning being resumed, the appellant said: "I feel as if I say anything that's not exactly yes or not (sic) that you might consider it as prevaricating". He complained of being pressurised, but the chairman intervened to say: "If you feel you can't answer the question ... all you have to do is say you can't answer and give a reason why you can't answer". The appellant then asked the chairman: "How is that different?" The chairman then requested that the question be re-put and advised the appellant to consider his response before he answered. He should not feel under any pressure before answering. The chairman explained that the Tribunal understood that it wasn't a pleasant experience being subjected to cross-examination, especially when so much was at stake. However, the chairman said that there had been one or two instances during the course of the morning when he had been asked a question and he had not answered the question, but had effectively gone off at a tangent by mentioning a list of problems that he was suffering from at the time. Matters seemed to be becoming heated and a short adjournment took place.

[13] On resuming the hearing, the chairman explained to the appellant that the Tribunal did not consider it particularly helpful that he was answering questions "I might have, or I might not have", because this did not inform the Tribunal and did not answer the questions posed. The appellant was advised that if he said, in response to a question "Yes" or "No" or "Don't know" or "Can't recall", then that was fine, but if he was unable to answer the question, because he had no recollection of what had occurred, then that is what he should explain. The exchanges then continued with the appellant occasionally, from time to time, maintaining, specifically, that he was not prevaricating and was trying to answer the questions.

[14] The hearing was adjourned until September 2010. This diet turned out to be abortive because, at its commencement, it was said that there were discussions taking place between the parties with a view to resolving the outstanding issues, presumably on the basis of a conditional disqualification, but the negotiations had ultimately broken down. However, detailed draft conditions were lodged with the Tribunal. A further four day diet was appointed, commencing 17 January 2011. The hearing eventually concluded with written submissions being lodged on 11 February 2011.

The Tribunal Decision
[15] Some 10 months later, on 12 December 2011, the Tribunal produced a decision extending to 117 pages. This contained a number of findings-in-fact, including that there was no suggestion by anyone that the appellant had failed in any clinical aspect of his work. It noted the appellant's personal circumstances, that since 2005 he had worked as a locum and that he had not submitted any false claims or perpetrated any further frauds. The findings continue:

"5.7 [The appellant] was aware of the requirements of the 2006 Regulations insofar as they related to the requirement for him to be registered for work in a practice in a Health Board area.

5.8 [The appellant] was abusive and intimidating towards [JM].

5.9 Of the sum of £29,398.70 defrauded by [the appellant] £12,460 was repaid following upon a criminal prosecution against him. The prosecution was deserted pro loco on an undertaking by [the appellant] that he would repay the balance of £16,938. He has failed to do so.

5.10 [The appellant] has not conducted his practice as a locum optometrist since 2005 in a satisfactory or honest manner.

5.11 On a number of occasions since 2005, [the appellant] has practised as an optometrist in a Health Board area whilst knowing that he was not entitled to do so as he was not on the Ophthalmic List of that Health Board.

5.12 [The appellant] has knowingly submitted inaccurate and misleading information when applying for inclusion on the Ophthalmic List of at least two Health Boards.

5.13 [The appellant] has delayed and in some cases failed to respond to reasonable information requested by at least one Health Board.

5.14 [The appellant] failed to comply with the legislative provisions in relation to General Ophthalmic Services introduced in April 2006, including failure to update Health Boards with changes in addresses at which he worked and resided.

5.15 [The appellant] has indicated to optometrists, practice managers or owners that he was eligible to work in their practice as a locum when he knew or ought to have known that he was not so eligible.

5.16 [The appellant] sought payment for locum services provided by him by way of a cheque made payable to his son 'A Kelly'.

5.17 [The appellant] endeavoured to mislead Lothian Health Board in his responses to enquiries made of him by them".

These findings-in-fact are not challenged in this appeal.

[16] The Tribunal ultimately proceeded to its conclusions (section 10). These commence with the point that the appellant was found to have committed a fraud of a criminal nature with a view to benefiting himself at the expense of a health scheme. The fraud was an abuse of trust, which was planned and perpetrated over a period of five years in relation to over 600 patients. That, in the Tribunal's view, "alone, is a major issue and raises serious questions as to the integrity of [the appellant]". The Tribunal observed that, in his original evidence, the appellant had been "hesitant, evasive and contradictory" under cross-examination. His evidence "smacked of self justification and displayed a seminal lack of concern as to the gravity of his position". On occasions the appellant had prevaricated with his answers and was argumentative, disrespectful and rude to the Tribunal. The Tribunal were somewhat generous in their approach to the appellant's diversion of funds to his son (supra) in circumstances in which he had become bankrupt and his affairs were being managed by a trustee. On the other hand, they were content to infer, undoubtedly with good reason, that the appellant had no intention of repaying the outstanding balance due in respect of the frauds.

[17] In his dealing with the Health Boards, the Tribunal formed the view that the appellant was either unreliable in not responding to enquiries, or being duplicitous. His failure to co-operate with certain health authorities was noted, as was his failure to read and understand regulations. The Tribunal considered that it was simply not credible, as the appellant had attempted to maintain, that he had not been aware of changes in the regulations which would have affected his livelihood as a locum. The appellant had ignored the regulations, in an attempt to disguise the fact that he had been found to have committed fraud, because of the disadvantageous effect that this would have had upon his employment. The appellant had misled one Health Board in relation to having been on the ophthalmic list in Shetland.

[18] After summarising some of the detail of his activities, the Tribunal concluded that the appellant had "a continuous record of disdain, not only for the Regulations but for the Health Authorities with whom he has been found to fail to cooperate". After further detailed analysis of the appellant's dishonesty and lack of regret or insight since the original decision, the Tribunal found as follows:

"10.29 Given the evidence which we have heard as to his behaviour since the original hearing, we are concerned about the Respondent's ability to conduct his relationship with Health Boards in an honest, reliable and trustworthy manner. We heard from [JC] that the relationship between the Health Boards and practitioners is ... one based on trust. We agree with [JC's] view and accept his evidence on this. This trust is patently absent in the way in which [the appellant] conducts himself. Whilst he may be a competent clinician his administrative inability combined with his ignorance of the Regulations, his lack of honesty and integrity in his dealings with Health Boards and his dishonesty in perpetrating the fraud which led to these proceedings give us no confidence in the capacity of [the appellant] to comply with any of the conditions suggested. We consider that no conditions would address any future risk in his committing acts or omissions resulting in fraud or otherwise seeking an unentitled benefit for himself.

10.30 Part of the balancing exercise which we require to effect is a consideration of the unwelcome burden of administration which would be placed upon Health Authorities in having to monitor someone who has repeatedly and consistently demonstrated dishonest intent ... Had [the appellant] shown himself to be a reformed character in his conduct since the original fraud came to light, he may very well have earned a degree of trust which would have reduced if not extinguished the requirement for the monitoring of his conduct.

10.31 We have real and serious doubts as to whether the conditions proposed by [the respondents] could in any way, given [the appellant's] behaviour and character address the issue of a continuing risk to a Health Scheme in securing or endeavouring to secure for himself a financial or other benefit to that Health Scheme's detriment. We are not satisfied that [the appellant] is capable of exercising a reasonable standard of professional judgement and behaviour that would remove such risk.

10.32 It is our strongly held view that it is contrary to the public interest to have such an individual as [the appellant] practising as an optometrist with the National Health Service and in this respect the public interest clearly outweighs the interest of [the appellant] in pursuing a career as an optometrist in a public Health Scheme. He is a man of a deeply flawed character and any conditions imposed upon him would not, in our view, inculcate and restore that basic lack of trust even were he to be supervised by a qualified optometrist. Our view is that the draft conditions are neither adequate nor appropriate to protect the public, nor do we consider, in carrying out the balancing exercise which we require to do would they be proportionate."

Accordingly, the Tribunal once more disqualified the appellant from inclusion in the list.

Submissions
Appellant
[19] The appellant's ground of appeal is simply that the Tribunal were wrong to disqualify him unconditionally. The Note of Appeal goes on, however, to pose four questions for the court. These are:

(1) Did the Tribunal err in law, and breach Article 6 of the European Convention on Human Rights in refusing to recuse itself and remit the case to a freshly constituted Tribunal?

(2) Did the conduct of the Chairman of the Tribunal render the proceedings unfair?

(3) Has the Tribunal given adequate reasons for its decision? And

(4) Was the Tribunal's decision excessive in all the circumstances?

Each of these is expanded to a degree in a document described as an "Appendix" to the appeal.

[20] In relation to "recusal", the submissions (supra) made to the Tribunal on 1 April 2009 were founded upon. The Tribunal ought to have sustained the objection to the Tribunal continuing to sit on the case. Under reference to Cusick v Strathclyde Joint Police Board [2012] CSIH 75, Lord Clarke delivering the Opinion of the Court at paragraph [12], a remit to a freshly constituted Tribunal would have avoided any suggestion that the Tribunal had a preconceived view of matters. The reasons why the Tribunal ought to have recused itself had become more substantial as the hearing had progressed and further days of evidence about the new allegations had emerged. The Tribunal were deciding on the credibility and reliability of the appellant against a background during which they had already decided that he was dishonest.

[21] On the second question, the appellant maintained that the conduct of the chairman of the Tribunal had been unfair. Although in the "Appendix" there was reference to objections being decided without his being afforded an opportunity to respond and to the raising of new matter at the end of the examination of witnesses, again without affording the appellant an opportunity to re-question that witness, the focus in the appeal was solely in relation to the accusation by the chairman that the appellant had been prevaricating (supra). The appellant explained that the chairman had, effectively, lost his temper and, when he had reconvened, the Tribunal had told the appellant that it would be of assistance if he simply answered "Yes", "No" or "I don't know" to questions put. He maintained that he had been told that he must answer questions in that way and had thus been inhibited in his ability to give his testimony freely.

[22] The third question focused, as with the previous appeals, on adequacy of reasons. The contention was that the Tribunal had again failed to address the issue of why conditional disqualification was not appropriate. A settlement had been proposed, but it would have been "near impossible" for the appellant to adhere to the draft conditions. The Tribunal had said that conditional disqualification was not appropriate because the appellant was dishonest and that was "it". Far from analysing the potential conditions and excluding their feasibility, or suitability, and providing the appellant with adequate reasons as to why he was now to be deprived of a living, the Tribunal had been influenced solely by the appellant's character. That had been unfair because of the lack of reasons.

[23] Beyond the statement that the disqualification selected was "excessive", the appellant did not expand upon that ground. On the other hand, he did complain about the time which the Tribunal had taken, following upon the lodging of written submissions in February 2011, to issue its judgment in December 2011. He maintained that this was a breach of the reasonable time guarantee, in Article 6 of the European Convention, under reference to Artico v Italy (1981) 3 EHRR 1. The appellant did not suggest, nor is there a ground of appeal directed towards a contention, that the time delay involved in issuing the decision, or indeed the overall lapse of time since the original complaint, had resulted in an unfair hearing.

[24] The respondents contended that the appeal, in so far as it related to the motion for "recusal", was incompetent because it came too late. The Tribunal's order had been dated 19 June 2009. In terms of the Tribunals and Inquiries Act 1992 (section 11) the appellant had been entitled to appeal against that decision, but the time for lodging an appeal was 42 days (Rules of the Court of Session 41.26(1)(b)). The order was separate and distinct from that on the merits and the latter could not be said to have embraced the former (cf Sheltered Housing Management v Jack 2009 SC 109 at para (24)). There was no equivalent, in Tribunal appeal practice, of the provision relative to the review of prior interlocutors in the context of reclaiming motions (RCS 38.6(1) McCue v Daily Record (No.1) 1998 SC 811). In any event, the appellant had waived his right to challenge the decision by reason of his subsequent participation in the substantive proceedings before the Tribunal (William Beardmore & Co v Barry (No. 3) 1928 SC 366, LJC (Alness) at 369, albeit doubted in Eccles v Cross & McIlwham 1939 SC 1, Lord Moncrieff at 4; see also Reid & Blackie: Personal Bar, paras 19-17, 19-41 - 49).

[25] The decision of the Tribunal to continue adjudicating had, in any event, been one which it had been entitled to make. The test was whether a fair-minded and informed observer would conclude that there was a real possibility that the Tribunal would be biased standing the views that it had expressed previously (Helow v Secretary of State for the Home Department 2009 SC (HL) 1, Lord Hope at paras 1-3). This test had been recognised by the Tribunal and applied by it. The Tribunal was a specialist body, capable of a professional approach (Sinclair Roche & Temperley v Heard (supra) para 46.6). It was acting under the guidance of the Extra Division, and that Division had not taken the view that the Tribunal's approach had been wholly flawed, or that the case had been mishandled. The Division's concern had related only to the adequacy and clarity of reasoning. A judge, properly exercising his judicial function, cannot be said to be biased purely because he has reached a particular result (Black v Scot Lithgow 1990 SC 322, Lord Hope at 328). The Tribunal had had a discretion as to whether to recuse itself and such a discretion was not to be interfered with lightly (Dumfries & Galloway Regional Council v O 1994 SCLR 661 at 664). In arriving at its decision, the Tribunal had duly considered the various relevant factors, including those set out in Sinclair Roche (supra, at para 46).

[26] In relation to the Tribunal's eventual decision, it would have been entirely artificial for a Tribunal to reach it in the absence of a consideration of the previous findings-in-fact. The issues of fraud and the disposal were inextricably linked. Even if the matter had been referred to a differently constituted Tribunal, the new panel would have been bound to read the previous Tribunal's decision on the merits and, in particular, the circumstances surrounding the fraud. It would have been in roughly the same position as the old Tribunal.

[27] The respondents were not called upon to respond to the appellant's submissions on the bias of the chairman during the course of the hearing. However, in relation to the question of the reasonable time requirement in Article 6, the respondents maintained that the lapse of 10 months from the lodging of submissions to the issue of the decision was not so long as to deprive the appellant of a fair hearing. The question of disposal had been a matter of some complexity. The Tribunal had required to consider the issue of whether the appellant's practice since 2005 had been satisfactory. This had entailed consideration of a number of issues. The Tribunal had also required to consider the prospect of conditional disqualification, including the suitability of the draft proposed conditions which had been placed before it. The fact that the Tribunal's determination ran to 117 pages was an indication of complexity. The importance of the subject-matter, both to the appellant and to the public interest, had required a detailed examination of the evidence. The appellant had not been suspended from practice, pending determination of his case, and had not identified any specific prejudice caused by the delay in the Tribunal issuing a determination.

[28] There was a duty on the Tribunal, on the one hand, to provide intelligible and adequate reasons for its conclusions (Kelly v Shetland Health Board 2009 SC 248, at para 15), but the Tribunal had duly provided these reasons. There was no requirement, on the other hand, to deal with every single point. It was sufficient that the main issues were referred to (South Bucks District Council v Porter (No.2) (2004) 1 WLR 1953). The Tribunal did not consider that any conditions would address the future risk that the appellant would commit further frauds or otherwise seek a benefit to which he was not entitled. The Tribunal was concerned about the appellant's ability to conduct his relationship with Health Boards in an honest, reliable and trustworthy manner. The Tribunal had considered that the necessary trust required to make the relationship work was absent in the appellant's case. He lacked honesty and integrity in his dealings with the Boards and had been dishonest in perpetrating the original fraud. The Tribunal had given due consideration to the draft proposed conditions. However, the Tribunal did not consider that these would address future risk given their view that the appellant remained a "deeply flawed character". Finally, in relation to the question of whether the disqualification was excessive, the court ought to be slow to interfere with the decision of a specialist Tribunal (Eba v Advocate General 2012 SC (UKSC) 1 Lord Hope at 15-16). The disposal was one of those available to the Tribunal and there were no grounds presented which would justify interference. The Tribunal had cited a number of factors in support of its decision, including the circumstances of the fraud, the failure to repay and the absence of regret.

Decision
Declinature
[29] The court is content to address the issue of whether the Tribunal ought to have declined jurisdiction on its merits. In that regard, however, it expressly reserves its position on whether it would have been competent to challenge a decision of this nature at an earlier stage, within the 42 day time limit imposed by Rule of Court 41.26(1)(b). It is certainly true that the present case is distinguishable from Sheltered Housing Management v Jack 2009 SC 109. However, there remains an argument as to whether the right of appeal conferred by section 11(1) of the Tribunals and Inquiries Act 1992 is one which relates only to final decisions in a Tribunal process rather than interlocutory measures taken pendente processu (see R v Lands Tribunal ex parte City of London Corporation [1982] 1 WLR 258). This is so notwithstanding that parties in previous appeals may have been content to allow the court to review such measures without objection.

[30] The appropriate test for determining whether this Tribunal ought to have declined jurisdiction is whether the hypothetical fair minded and informed observer of its proceedings would have considered that there was a real possibility that the Tribunal would be biased towards the appellant when it came to the issue of reconsidering the disposal (see eg Helow v Secretary of State for the Home Department 2009 SC (HL) 1, Lord Hope at para [4]). As it was well put in Law v Chartered Institute of Patent Agents [1919] 2 Ch 276 (Eve J at 289), even in the absence of actual bias:

"...(so jealous is the policy of our law of the purity of the administration of justice), if there are circumstances so affecting a person acting in a judicial capacity as to be calculated to create in the mind of a reasonable man a suspicion of that person's impartiality, those circumstances are themselves sufficient to disqualify...".

[31] The contention which had been put before the Tribunal was simply that, because they had already (twice) determined that the appellant ought to be disqualified, therefore they ought not to adjudicate on the reconsideration. The proposition was that they might "cynically reach the same conclusion as before". However, this was a situation in which the Tribunal had simply been asked to expand upon its reasoning in relation to disposal. There is no basis for the informed and fair minded observer to expect that exercise to be carried out by other than the original Tribunal.

[32] Had the parties themselves, or the court (on two occasions), considered that there was a real prospect of perceived bias, the matter of a remit to a differently constituted Tribunal could have been raised at the previous two appeal hearings. It is highly significant that this was not done. Indeed, in the final paragraph of the Opinion of the Court (2009 SC 248, para [18]), it seems relatively clear that the court had in mind that the same Tribunal would "be directed to apply their mind, once again, to the question of appropriate disposal".

[33] The Tribunal were referred to the "fair minded observer" test set out by Lord Hope in Helow (supra) and applied it in holding that, having listened to the Tribunal's reasoning and thus being informed of all the circumstances, that observer would not suspect bias. The Tribunal also considered whether they should nevertheless decline jurisdiction. The Tribunal bore in mind that the appellant had effectively accepted the allegations of fraud. They, and any other Tribunal considering disposal, would have that finding at the forefront of their thinking in the assessment of disposal. They paid specific attention to the fact that they had previously regarded the appellant as "hesitant, evasive, [and] contradictory" as a witness. However, the latter finding had not itself been challenged and was also a matter of record for any Tribunal to consider. As the Tribunal recognised, any new evidence to be adduced had to be considered in light of the testimony, including that of the appellant, which had already been heard on the merits. It could not have been ignored by any Tribunal, however constituted. In all the circumstances, this ground of appeal must fail.

Conduct of the Chairman
[34] The court has considered the transcript of the proceedings, which have been extended in full, and, in particular, the context of the chairman's remark that the appellant was prevaricating in his evidence. Chairmen of Tribunals are not expected to behave like automatons and to remain silent when presiding over evidential hearings. Quite the contrary, if they consider that a witness (whether a party or otherwise) is failing to answer a question and is, in effect, prevaricating in that respect, they are entitled to attempt to put a stop to that conduct and to advise the witness of their view. If the view is not justified, that may be a prima facie good ground of appeal in the event of an adverse finding of credibility or reliability. However, if, from the record, it can be seen that the witness was indeed prevaricating then it can hardly be a legitimate point of criticism that the Tribunal was open with him and stated that to be the case; thus permitting the witness to attempt to mend his ways and answer the questions properly.

[35] The court does not consider that the chairman's intervention was prejudicial to the appellant or rendered the proceedings unfair. On a fair reading of the transcript, the appellant was prevaricating on the simple question of whether, in advance of acting as a locum, he had read the regulations relating to the conduct of locums. This questioning was designed to elicit from the appellant the response that he had (as might have been expected) been aware of the regulations which applied to his work and which, the respondents were to contend, he flouted. On the face of his answers, the appellant appeared, over a significant passage of his evidence, to be avoiding answering the question properly in favour of giving lengthy explanations of his psychological state or digressing into the diagnosis of psychiatrists relative to his memory. The chairman properly intervened, explained the Tribunal's concerns and permitted the applicant the opportunity, which he did not fully grasp, to give a frank answer to the question posed.

[36] The court does not consider that there is any significance in the suggestion that the chairman lost his temper. If he did, and that is not apparent from the printed page of the transcript, it would hardly have been surprising in what appears to have been a somewhat exasperating situation. However, what is clear from the transcript is that the chairman did not, as contended by the appellant, constrain the nature of the appellant's answers. On the contrary, he appears to have tried to assist the appellant to give accurate, as distinct from opaque, accounts of events and, in particular, the appellant's reasons for his actions. This ground of appeal must also fail.

[37] In connection with the reasonable time guarantee contained in Article 6 of the European Convention on Human Rights, the court does not have an explanation for the time lapse between the lodging of written submissions in February 2011 and the issue of the decision in December 2011. It observes that such a delay would normally be regarded as excessive in general terms. However, it is not suggested that this, or the more significant passing of seven years from the raising of the complaint to this decision, had any effect on the fairness of the proceedings. It is not a ground of appeal and the court therefore makes no further comment other than to remark that the delay has permitted the appellant to continue working in the ophthalmic field when he should, according to the Tribunal, have been disqualified from so doing.

Adequate Reasons/Excess
[38] Whatever the deficiencies in the provision of reasons at the earlier stages of the proceedings, there is no doubt now that the appellant has been given more than adequate reasons for the Tribunal's most recent disposal. Had the Tribunal, at either of the earlier stages, stated that a fraud of this nature in itself merited unconditional disqualification, it would have been difficult to quarrel with such a conclusion. It seems that it has been, at least in part, the failure to state this in plain terms, and that a conditional disqualification was an insufficient deterrent, that has prompted what has become a prolonged procedure involving several days of evidence. However, the Tribunal's new determination overflows with reasons for the imposition of an unconditional disqualification. Put shortly (although the whole terms of section 10 of decision should be borne in mind), it is the combination of the serious nature of the original fraud and the appellant's continuing failure to conduct himself in an honest, reliable and trustworthy manner which has led the Tribunal to what may be regarded as the almost inevitable conclusion that, not only is an unconditional disqualification insufficient in general in respect of this level of fraud, but the particular appellant could not in any event be relied upon to abide by any conditional disposal. In terms of the test set out in Wordie Property Co v Secretary of State for Scotland 1984 SLT 345 (LP (Emslie) at 348), neither the informed reader nor the court are left in any real and substantial doubt as to what the reasons for the decision are.

[39] For the same reasons as are set out in the previous paragraph, the court is unable to classify the Tribunal's disposal as excessive. The Tribunal, as a specialist body, is uniquely placed to determine the issue of disposal in the case of a significant fraud by someone in the appellant's former position. Disqualification for such a fraud cannot be viewed as in any way unreasonable. The appeal is accordingly refused.