Brian Kelly V. Shetland Health Board
| Jurisdiction | Scotland |
| Judge | Lord Marnoch,Lord Menzies,Lord Justice Clerk |
| Neutral Citation | [2012] CSIH 101 |
| Date | 28 December 2012 |
| Docket Number | XA12/12 |
| Court | Court of Session |
| Published date | 28 December 2012 |
| 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: _______________ |
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...
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