Kelly v Shetland Health Board
| Jurisdiction | Scotland |
| Judgment Date | 15 January 2009 |
| Neutral Citation | [2009] CSOH 3 |
| Docket Number | No 21 |
| Court | Court of Session (Outer House) |
| Date | 15 January 2009 |
Court of Session Inner House Extra Division
Lord Wheatley, Lord Clarke, Lady Cosgrove
Administrative law - Statutory leave for application to appeal - Disqualification from inclusion in ophthalmic lists by tribunal - Remit to tribunal by court following upon quashing of order - Fresh decision to disqualify by tribunal - Adequacy of reasons - Tribunals and Inquiries Act 1992 (cap 53), sec 11
The National Health Service (Scotland) Act 1978 (cap 29) provides for tribunals to consider disciplinary matters relating to medical practitioners. The National Health Service (Tribunal) (Scotland) Regulations 2004 (SI 2004/38) provide for the manner in which such functions are to be carried out and decisions made.
The appellant was a qualified optometrist who had been disqualified in terms of a decision of the National Health Service Tribunal following allegations that he had made a substantial number of false and inaccurate claims in relation to provision of spectacles to patients. The Inner House of the Court of Session quashed the decision of the tribunal in so far as it disqualified the appellant from inclusion in certain lists relating to ophthalmic services and remitted the matter to the tribunal. Following a further hearing the tribunal again determined on immediate disqualification rather than either of the other two options open to it in the circumstances being a conditional disqualification or non-disqualification. The appellant made an application for leave to appeal to the Court of Session arguing that the tribunal had failed to give proper consideration to or reasons for the failure to impose a conditional disqualification.
Held that the tribunal in its decision had failed to provide adequate and intelligible reasoning as to why a conditional disqualification had been ruled out in the case of the appellant (para 18); and appeal allowed.
Brian Kelly brought an application for leave to appeal under sec 11 of the Tribunals and Inquiries Act 1992 against a decision of the National Health Service Tribunal of 8 January 2007 imposing immediate disqualification from certain professional lists.
The cause called before an Extra Division, comprising Lord Wheatley, Lord Clarke, Lady Cosgrove, for a hearing on the summar roll.
Cases referred to:
Safeway Stores plc v National Appeal PanelSC 1996 SC 37; 1996 SLT 235
South Bucks District Council and anr v Porter (No 2)UNKWLRUNK [2004] UKHL 33; [2004] 1 WLR 1953; [2004] 4 All ER 775; [2005] 1 P & CR 6
Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345
At advising, on 15 January 2009, the opinion of the Court was delivered by Lord Clarke-
Opinion of the Court- [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 sec 29(8)(d) of the National Health Service (Scotland) Act 1978 (cap 29), 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 para 95 of its decision on the matter, 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 sec 29 of the National Health Service (Scotland) Act 1978. It provides, inter alia, as follows:
'(2) If the Tribunal receive from a Health Board representations that a person-
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(a) who has applied to be included; or
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(b) who is included
in any list meets any of the conditions for disqualification, the Tribunal shall inquire into the case. …
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(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-
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(a) in relation to a list referred to in subsection (8)(a), perform-
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(b) in relation to a list referred to in subsection (8)(d), undertake to provide or are approved to assist in providing.
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(7) The second condition for disqualification is that the person concerned-
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(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
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(b) knew that he or (as the case may be) the other was not entitled to the benefit.
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(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.
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(8) A "list" means-
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(a) a list of health care professionals of a prescribed description performing primary medical services;
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(d) a list of medical practitioners and ophthalmic opticians...
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