Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  HPHL/2777/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before E A L BANO

 

Attendances:

 

For the Appellant: Mr Paul Diamond, of Counsel

 

For the Respondent Mr Owain Thomas of Counsel, instructed by Hill Dickinson, Solicitors

 

 

Decision:  The decision of the First-tier Tribunal did not involve the making of an error on a point of law and the appeal to the Upper Tribunal is therefore dismissed.

 

 

REASONS FOR DECISION

 

1. This is an appeal by a registered medical practitioner-a ‘performer’ in the language of the relevant legislation-against the decision of the First-tier Tribunal upholding the refusal of the respondent Primary Care Trust to include the appellant’s name in their performers list.  The refusal was on two grounds: (i) failure by the appellant to provide satisfactory evidence under regulation 6(2)(a) of the National Health Service (Performers Lists) Regulations 2004, as amended (“the 2004 Regulations”), of his intention to perform his services in the respondents’ area; and (ii) his failure to provide two satisfactory clinical references, under regulation 4(2)(f) of the 2004 Regulations.  There is no right of appeal in respect of the refusal on the first ground.

 

2. The appeal arises out of what has been described by the respondents in their submissions as the appellant’s: “propensity for inappropriately introducing and discussing religious issues with patients.”  The appellant has been the subject of disciplinary action by the GMC and there have been earlier tribunal proceedings which form an important background to this appeal.  The previous appeal was against a decision by Warrington Primary Care Trust removing Doctor Noronha from their performers list on the ground that his behaviour in talking to patients about his religious beliefs without their consent or agreement made him unsuitable for inclusion in a medical performers list (“MPL”).  At the time of the hearing before the First-tier Tribunal in this case, Doctor Noronha had been given permission by Judge Wikeley to appeal against the first tribunal’s decision, but the appeal to the Upper Tribunal had not yet been decided.  However, Judge Wikeley subsequently dismissed the appeal on 29 May 2012.

 

3. In 2006 the senior partner in the practice where the appellant was working reported concerns to Warrington PCT with regard to the appellant making inappropriate references to religious matters during consultations with patients, including an allegation that he had suggested that patients should address their concerns to God, rather than seek medical treatment.  Warrington PCT suspended the appellant from their employment in late 2006 and from their MPL in February 2007, and in March 2008 the GMC issued the appellant with a letter of advice.  The suspension was lifted following a psychiatric assessment and a period of training and supervision under Doctor Malcolm Tyrer, who was a GP trainer working in another practice.  However, in early January 2009 two further complaints were made of inappropriate references by the appellant to religious matters during consultations with patients.  Warrington PCT wrote to the appellant directing him to have regard to paragraph 19 of the GMC’s supplementary guidance on “Personal Beliefs and Medical Practice”, which states:

 

“You should not normally discuss your personal beliefs with patients unless those beliefs are directly relevant to the patient’s care.  You must not impose your beliefs on patients, or cause distress by the inappropriate or insensitive expression of religious political or other beliefs or views.  Equally, you must not put pressure on patients to discuss or justify their beliefs (or absence of them).”

 

4. As a result of three more complaints by patients in January 2009, a meeting took place between the appellant and a representative of Warrington PCT, in which the appellant, although initially dismissive of the complaints, promised that he would significantly alter his approach to patient contact.  In February 2009 Warrington PCT wrote to the appellant warning him of possible action in the event of further complaints, but more complaints were in fact received in March and May of 2009 and on 15 May 2009 Warrington PCT referred the appellant to the GMC.  On 14 September 2009 the GMC issued the appellant with a written warning, to remain on his record for five years, in the following terms (as reported on the GMC website):

 

“Despite being advised by his employer and the GMC about the inappropriate discussion of religious matters during consultations, he persisted in such behaviour.  This conduct does not meet with the standards required of a doctor.  It risks bringing the profession into disrepute and it must not be repeated.  The required standards are set out in Good Medical Practice and associated guidance.  In this case, paragraph 33 of Good Medical Practice is particularly relevant:  ‘You must not repeat to your patients your personal beliefs, including political, religious or moral beliefs, in ways that exploit their vulnerability or that are likely to cause them distress.’  Whilst this failing in itself is not so serious as to require any restriction on his registration, it is necessary in response to issue this formal warning.”

 

5. Despite that warning, a further complaint was received by Warrington PCT on 13 September 2010 from a patient who was pregnant and suffering from extreme stress because her husband was seriously ill.  The appellant is alleged to have spoken to the patient without her consent for twenty minutes about turning to God, saying that if she did so everything would be alright and repeatedly asking her if she accepted the Lord Jesus into her life.  The patient complained that she had not received any medical treatment, and had felt uncomfortable because the appellant was in a position of authority.  As a result of that complaint, the appellant was suspended by Warrington PCT on 20 October 2010 and removed from their list on 23 March 2011.

 

6. The appellant applied to join the Trafford PCT MPL on 14 November 2011.  Under regulation 4(2)(f) of the 2004 Regulations, he was required to provide:

 

“the names and addresses of two referees, who are willing to provide clinical references relating to two recent posts (which may include any current post) as a performer which lasted at least three months without a significant break, and, where this is not possible, a full explanation and the names and addresses of alternative referees”.

 

Under Regulation 6(1)(b), the respondent was entitled to refuse to include the appellant in their performers list on the ground that:

 

“having contacted the referees provided by him, it is not satisfied with the references.”

 

The respondents rejected the appellant’s application on 24 January 2012, and on 24 February 2012 the appellant exercised his right of appeal to the First-Tier Tribunal against that decision under regulation 15 of the 2004 Regulations, which confers a right of appeal by way of redetermination against a decision to refuse admission to a performers list under regulation 6(1).

 

7. The tribunal set out the position with regard to the references provided by the appellant as follows:

 

“34. In his application Dr Noronha named two referees, Dr Malcolm Tyrer, GP Tutor, and Dr Mike Dennis, Senior Partner, both of the Medical Centre, Folly Lane, Warrington.

 

35.  Dr Tyrer returned a reference form in which he said that he had known Dr Noronha since 1999 when Dr Noronha was his GP trainee for six months, and from April 2008 to present as a mentor and trainer on Dr Noronha’s return from work after sickness absence.  He also included the following in relation to Dr Noronha’s development needs: “I am not sure where he is up to re annual appraisal and PDP and he may need some help with these.”  The referee also stated “He has had some performance issues concerning the inappropriate introduction of religious advice to patients during consultations…I understand that he has now gained insight into these and is certain that the problem will not be repeated.”

 

36.  In relation to clinical and other skills Dr Tyrer ticked each of the boxes which indicated “satisfactory”.

 

37.  Dr Dennis returned a form which stated “I have known him for about ten years, he was a registrar in this practice and I have not worked with him recently”.  In relation to strengths and development needs he said “I have no recent knowledge of these.”  He ticked the boxes to express a satisfactory opinion of Doctor Noronha’s clinical skills.

 

38.  The respondent referred in the statement of Dr Kissen, Medical Director, to a meeting with Dr Noronha on 19 April 2012.  Dr Noronha had at that meeting provided two further references, which were not considered suitable as they were not in the correct format, did not cover all the areas which had to be assessed, and did not, in Dr Kissen’s opinion, address the area of practice that had been the basis of the GMC warning and the Warrington PCT removal.

 

39.  However it is now apparent that the respondent after that meeting on 19 April 2012 sent pro forma reference forms to these practitioners, and we are therefore able to consider below the additional information set out there.  It remains the respondent’s case that, even with this information, and the oral evidence of Dr Tyrer, satisfactory references have not been provided.  It is not submitted that references are not recent.”

 

8.  The tribunal directed itself (paragraph 55) that it could consider evidence that had not been included with the application and continued:

 

“56.  In evaluating Dr Norronha’s references, we consider it axiomatic that what is a satisfactory reference can vary according to the applicant’s particular circumstances.  Where a performer has been warned by his professional body and removed from another PCT’s performer list, it is appropriate to expect one or other or both references to address the relevant issues.  As well as receiving comments on clinical skills and other aspects of the performer’s history, therefore, the respondent is entitled to the professional opinion of the referees on matters which are of potential concern.  In particular if Dr Noronha has been warned and removed for making inappropriate reference to his religious views as part of his consultations, then to be  a satisfactory reference that issue must be addressed in the reference.  The respondent will otherwise not be able to be satisfied that the PCT’s patients will not be at risk.

 

57.  In evaluating the references, we took all available information into account.  Therefore Dr Tyrer’s reference was considered in light of his oral evidence.  We considered references received after the decision under appeal, and supportive letters submitted by other doctors.  We did not in this context consider Mr Kynaston’s supportive witness statement, as the referees must be medically qualified.  As the Regulations allow for an explanation if the requirements for references from two posts, or from posts lasting three months or more without a break, are not met, we consider explanations now available to us through Dr Noronha’s evidence.  However, the important issue for the Tribunal is whether the references, taken together, can be considered “satisfactory” under regulation 4(2)(f).”

 

9. The tribunal heard oral evidence from Doctor Tyrer and from the appellant himself, and considered documentary evidence from other doctors supportive of the appellant.  However, the tribunal concluded (paragraph 75) that none of the referees, taken together or singly, enabled the respondents, or the tribunal, to conclude that the requirement of regulation 4(4) for a satisfactory reference from two referees had been met.  Although Doctor Tyrer had expressed the view in his evidence that the appellant would not repeat his previous behaviour, the tribunal considered that he had had insufficient interaction with the appellant since the most recent complaint for his opinion to be reliable.  In relation to the appellant’s own evidence, the tribunal said:

 

"80. The oral evidence Dr Noronha gave shows that he remains, and this is not a criticism, firmly committed to his religious views. He told the Tribunal that he now understood the GMC guidelines as to separating his religious views from the professional duties to his patients.  Previously, as we understand his evidence, which is confirmed by Dr Tyrer and the material in the Upper Tribunal papers, Dr Noronha felt unable to confirm this. The question therefore, is what has changed? Dr Noronha had given assurances before including to Dr Tyrer, which we are now asked to accept were qualitatively different from those now given. The concerns as to his behaviour in consultations stretch from his suspension in 2006 to his removal in 2010.  Dr Noronha has had previous opportunities to demonstrate that he has changed.

 

81.  Dr Noronha’s explanation as to why we should now accept he has changed requires to some extent, an understanding of his faith. He told us that previously he believed he had been “gifted” by God; in other words he was obliged, in some way which we do not need and in any case lack the expertise to analyse, to override his professional guidelines and follow what he believed to be a higher level of authority.  He tells us that he now realises this is not appropriate and that in any event he was not gifted. He also told us that I “would be foolish to operate without the gifting”, which is not the same as saying that it would be wrong to do so even if he were, in his view, gifted. From our point of view, whether or not Dr Noronha feels he has been gifted is a matter for him; he should understand and be able when asked to demonstrate that whether or not he is gifted is irrelevant to the question of what takes place during a patient consultation.  He failed to show us that he appreciated this. 

 

82.  In our view the complex relationship between Dr Noronha’s profound faith and his understanding of his professional duties cannot be disentangled on the basis of the evidence we now have.  He told us that he now understands the guidelines of his profession and that he must follow them.  This is somewhat puzzling: these guidelines were never ambiguous, and if Dr Noronha felt previously that he could not comply with them, his professional duty was clear.  He should have ignored the pressure he perceived his faith put him under, or alternatively he should have ceased to work in a situation where he felt he must do so. That he claims only to understand this now is troubling. We accept that this reasoning puts Dr Noronha in a difficult situation, because he cannot rectify his past mistakes.  However it does give credence to submissions on behalf of the respondent that Dr Noronha, if he wants to demonstrate change, should seek a clinical role in which there would be little or no risk of succumbing to the wish to talk about his religious views, and that could enable him to demonstrate he is not unsuitable, in due course, to be place on an ML for a primary care role. In any event Dr Noronha’s future is a matter of concern, but not the issue which this Tribunal must determine."

 

10. Doctor Noronha applied for permission to appeal against the tribunal's decision on the ground of irregularities in the tribunal proceedings, but permission on that ground was refused both by Judge Aitken, the deputy First-tier Chamber President, and by Judge Wikeley when the application was renewed to the Upper Tribunal.  However, in exercising his right to ask for an oral hearing of the application for permission to appeal, Doctor Noronha raised human rights issues, and I gave permission to appeal so that those issues could be fully explored.  My permission to appeal was not limited to the human rights grounds, so that the original grounds of appeal are still technically before me, but since I cannot usefully add to what has already been said about them by Judge Aitken and Judge Wikeley and since they were not pursued at the oral hearing, I will deal only with the human rights issues.

 

11. Article 9 of the European Human Rights Convention provides:

 

“1.  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship , teaching, practice and observance.

 

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

 

The specific issues which I raised in my grant of permission to appeal were whether the limitations in the way in which Doctor Noronha was required to conduct his practise were sufficiently precise as to be “prescribed by law”, and whether in reaching their decision the tribunal paid sufficient regard to the terms of the relevant GMC guidance.  In responding to the directions which I gave when granting permission to appeal, both parties also addressed Article 8 of the Convention.  Neither party attempted to analyse how Article 8 applies to the facts of this case, but both parties agreed that the approach to be applied to justification under paragraph 2 of both Articles was the same in each case.

 

12. In Kokkinakis v Greece (1994) 17 EHRR 397 the ECHR observed that “bearing witness in words or deeds is bound up with the existence of religious convictions”.  The respondents therefore accept that placing restrictions on the ability of doctors to discuss religious matters with patients falls within the material scope of Article 9.  However, the respondents contend that those restrictions are in pursuit of legitimate aims, namely, the interests of public safety and health; that they are sufficiently well defined as to be “prescribed by law”, and that they are necessary in a democratic society.

 

13. Mr Diamond did not seek to argue that the existence of restrictions on the appellant’s ability to discuss religious matters with his patients, or the way in which the statutory machinery of the 2004 regulations was applied, were in themselves breaches of the appellant’s Article 9 rights.  However, in Schuth v Germany (2011) 52 E.H.R.R. 32 the applicant was dismissed from his post as the organist and choirmaster in a Catholic parish after it was discovered that the partner with whom he had been living following his separation from his wife was pregnant.  The applicant alleged a breach of Article 8 and the Court held (paragraph 67):

 

“The Court notes furthermore that the labour courts addressed neither the actual family life nor the legal protection afforded to it in their conclusions.  The interests of the ecclesiastical employer were thus not assessed in relation to the applicant’s right to respect for his private and family life as guaranteed by art. 8 of the Convention, but solely in relation to his interest in retaining his employment.”

 

Mr Diamond submitted that the tribunal’s failure to appreciate that the appellant's Convention rights were engaged resulted in a failure to take proper account of those rights and therefore to consider, in accordance with the principles set out in Eweida v United Kingdom (2013) 57 EHRR 8, whether the measures adopted against the appellant were justified and proportionate.  Mr Diamond referred to Palomo Sanchez v Spain (Application 2895/06 and ors.) and Fuentes Bobo v Spain (2001) E.H.R.R. 50 in support of the proposition that in cases involving a person's human rights proper respect and weight must be accorded to the person's beliefs, and to the employment tribunal cases of  Reaney v Hereford Diocesan Board (Case No. 1602844/2006) and Bushra Noah v Sarah Desrosiers t/a Wedge (Case No. 2201867/2007) in support of his submission that a proportionate approach in this case would have been to give the appellant an opportunity to demonstrate that, as the appellant put it, 'the penny had dropped'.

 

14. The GMC guidance referred to by Warington PCT in their letter of February 2009 and by the GMC themselves in the written warning of 14 September 2009 has been issued by the GMC in the exercise of their functions under section 1(1A) of the Medical Act 1983 “to protect, promote and maintain the health and safety of the public”.  In The Sunday Times v The United Kingdom (1979-80) 2 E.H.R.R. the Court held that two of the requirements for an interference to be ‘prescribed by law’ were:

 

“First, the law must be adequately accessible: the citizen must be able to have an indication that it is adequate in the circumstances of the legal rules applicable to a given case.  Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able-if need be with appropriate advice-to forsee, to a degree that is reasonable in the circumstances, the consequence which a given action may entail.  Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable.  Again whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances.  Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.” (paragraph 49)

 

In Barthold v Germany (Application No. 8734/79), the Court applied the principles in the Sunday Times case in holding that professional rules of conduct which imposed restrictions on the freedom of veterinary surgeons to advertise in particular ways were ‘prescribed by law’ for the purposes of Article 10. The professional rules of conduct in this case have been prescribed by a regulatory body in the exercise of its statutory functions, and I am satisfied that the restrictions which they impose are sufficiently precise for them to be ‘prescribed by law’ for the purposes of Article 9.

 

15. In Kokkinakis (above) it was held that provisions of Greek law which made proselytism a criminal offence were justified under Article 9(2), but that the applicant’s prosecution under those provisions nevertheless gave rise to a breach of his rights under the Article because it had not been shown that he had behaved in an improper manner.  In considering whether it was legitimate and proportionate for the tribunal in this case to uphold the respondents’ decision not to include the appellant’s name on their MPL under regulation 4(2)(f) of the 2004 Regulations, it is in my view however necessary to keep in mind the terms of the issue which the tribunal had to consider.  Article 9 recognises the protection of the public and of the rights and freedoms of others as legitimate aims and Regulation 4(2)(f) introduces an important element of public protection into the statutory scheme under the 2004 Regulations by requiring external verification of an applicant’s suitability for inclusion in a MPL.  The tribunal approached the case in the most favourable way possible to the appellant by considering whether his references were satisfactory in the light of the oral evidence from one of the referees and from the appellant himself. However, the question which the tribunal ultimately had to decide was not whether in their view the appellant was more or less likely to contravene the relevant GMC guidance in the future, but whether the references which he had provided satisfied the requirements of regulation 4(2)(f) of the 2004 Regulations.

 

16. Although Article 9 might have been relevant if one or other of the appellant’s referees had expressed the view that he was unsuitable for inclusion on the respondents’ MPL because of his religious views, the questions which the tribunal had in fact to consider were whether the references provided by the appellant complied with the requirements of Regulation 4(2)(f) of the 2004 Regulations, and whether, in the light of the findings of the earlier tribunal, the references could be regarded as satisfactory.  The earlier tribunal found that the appellant had referred inappropriately to religious matters with patients since 2005, that he had come to the attention of the GMC twice since then and had been suspended from his employment, that his conduct had continued despite the disciplinary action against him and a period of professional supervision, that he had initially refused to provide an undertaking that the behaviour which had led to the most recent complaint would not be repeated, that he had indicated at one stage that he would not comply with GMC guidelines, that his apologies fell short of being an unconditional agreement not to repeat his behaviour in the future and that despite promises to change his behaviour it had in fact been repeated.

 

17. The tribunal noted that Doctor Tyrer had been unable to recall the conditions under which the appellant had been permitted to practise at the time of his mentorship, and that Doctor Tyrer had initially stated that he was unaware of the September 2010 complaint. The tribunal’s view that Doctor Tyrer  had had insufficient interaction with the appellant for his view to be reliable was therefore fully supported by the evidence.  However, even if the tribunal had come to the conclusion that Doctor Tyrer’s reference was satisfactory, the appellant still faced the hurdle of the need for a second reference.  Doctor Dennis’s reference did not address any of the areas of concern arisng out of the earlier tribunal decision and he was apparently unwilling to give evidence to the tribunal.  In Eweida and in the employment tribunal cases referred to by Mr Diamond, the employers had a range of options with regard to the actions which were held to be unlawful, but in this case the tribunal had to decide one way or the other whether or not the references provided by the appellant satisfied the requirements of the 2004 Regulations.  As I have said, since the tribunal was concerned with the adequacy of the references provided by the appellant in the light of the earlier tribunal’s findings, I do not consider that Article 9 was engaged by any of the factual issues which the tribunal actually had to decide.  However, even if Article 9 did come into play, it could not compel the tribunal to find that the appellant had provided two references complying with Regulation 4(2)(f) when that was manifestly not the case.

 

18. I therefore uphold Mr Thomas’s submission that the lack of any reference to Article 9 in the tribunal’s decision did not give rise to any error of law.  Assuming, but without deciding, that the overall context of the issue before the tribunal fell within the material scope of Article 8, I consider, for the reasons I have given when dealing with Article 9, that Article 8 was not engaged by the actual question which the tribunal had to decide and that, even if Article 8 had been engaged, it could not have affected the outcome of the appeal.

 

19. For those reasons, I dismiss the appeal.

 

 

 

 

 

E A L BANO

19 September 2013