R (Malik) v Waltham Forest Primary Care Trust
|England & Wales
|Lord Justice Auld,Lord Justice Rix,Lord Justice Moses
|28 March 2007
| EWCA Civ 265
|Case No: C1/2006/0731
|Court of Appeal (Civil Division)
|28 March 2007
 EWCA Civ 265
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
THE HONOURABLE MR JUSTICE COLLINS
The Right Honourable Lord Justice Auld
The Right Honourable Lord Justice Rix and
The Right Honourable Lord Justice Moses
Case No: C1/2006/0731
Mr Jason Coppel (instructed by Capsticks & The Office of the Solicitor—Department of Health) for the Appellants
Mr Philip Engelman (instructed by Edwards Duthie) for the Respondent
Hearing date: 25 th October 2006
Lord Justice Auld
These are appeals by the Waltham Forest NHS Primary Care Trust (“the PCT”) and the Secretary of State for Health (“the Secretary of State”) from the ruling of Collins J on 17 th March 2006 in favour of the Respondent, Dr Zafra Iqbal Malik. In his ruling Collins J held that Dr Malik had suffered an interference with his possessions contrary to Article 1 of the First Protocol to the European Convention on Human Rights (“ECHR”), incorporated into United Kingdom law by the Human Rights Act 1998, when the PCT unlawfully suspended him from the medical performers list maintained by it pursuant to the National Health Service (Performers Lists) Regulations 2004 (SI 2004/585) (“the Performers Lists Regulations”).
The central issue is whether a general practitioner providing National Health Service (“NHS”) services for a Primary Care Trust under the Performers Lists Regulations has a possessory right under Article 1, by virtue of his inclusion on the list, to perform such services. If so, every general practitioner included on such a list has a potential claim under Article 1 in the event of unlawful removal from it in addition to whatever other claims might flow from it.
Article 1 provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided by the law and the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
The statutory and regulatory background
I take the statutory and regulatory background from the summary prepared by Mr Jason Coppel, for the Secretary of State, of Collins J's helpful analysis of the relevant provisions of the Performers Lists Regulations.
For a doctor to perform services for which an NHS Primary Care Trust is responsible he must be included on a “performers list” maintained by that Trust under regulations 3 and 22 of the Performers Lists Regulations and section 28X of the National Health Service Act 1977.
Inclusion of a doctor on the list depends on various criteria as to his capacity, conduct and good character, and is personal to him (regulations 6 and 24 of the Performers Lists Regulations).
The distinction between the contractual right to “provide” services and the right to “perform” them is important. Once on a Primary Care Trust's list, a doctor cannot “perform” medical services under the NHS unless he is also engaged contractually by the Trust to “provide” such services, either as a sole practitioner, partner in a practice or as an employee or sub-contractor to a doctor engaged by a Primary Care Trust to provide such services; National Health Service (General Medical Services Contracts) Regulations 2004 (SI 2004/291 (“the GMS Regulations”), Sch 6, para 56. These contractual arrangements have their own mechanisms for payment, variation and termination independently of the suspension or removal of a doctor from a performers list. In this case, Dr Malik entered into a contract with the PCT as a sole practitioner, and his contract remained in force throughout the period of his suspension.
The Performers Lists Regulations provide a mechanism for removal of a doctor from the list, principally on grounds of inefficiency, unsuitability or fraud (regulations 10 and 11), and for suspension, normally up to six months, “where the Primary Care Trust is satisfied that it is necessary to do so for the protection of members of the public or is otherwise in the public interest” pending the completion of investigations of his conduct (regulation 13).
The effect of suspension is that a doctor is to be treated as not being included in the list, although his name still appears on it (regulation 13(9)), and to prohibit performance by him of any medical services under the contract (the GMS Regulations, paragraph 53(1)). However, he retains his contractual right to provide services, either through a locum on the performers list whom he engages or one whom his Primary Care Trust engages on his behalf.
The Performers Lists Regulations provide, by regulation 13(17), for the making of payments by a Primary Care Trust to a suspended doctor in accordance with the terms of a determination made by the Secretary of State. In the case of Dr Malik the determination provided for the Trust to make replacement payments to him at the rate of 90% of his normal contractual monthly payment, the 10% reduction taking account of savings in working expenses that he would otherwise have incurred.
Dr Malik practised as a general practitioner from an east London surgery, which he owned, from 1978. He was a sole practitioner there on his suspension in January 2005, when he had a NHS list of some 1,400 patients.
On 30 th March 2004, while included on the performers list, Dr Malik entered into a contract with the PCT to provide medical services in accordance with the GMS Regulations. Thereafter and until his suspension, the PCT paid him his NHS remuneration monthly under his contract, assessed every three months by reference to the number of patients on his list. The PCT also paid him notional monthly rent in respect of his surgery premises.
On 21 st January 2005 Dr Malik was suspended from the list by the PCT pursuant to a series of decisions that Collins J has held to be unlawful. The PCT does not appeal that aspect of his decision. During his suspension, and thereafter when he voluntarily refrained from practice, the PCT continued to pay him pursuant to his contract with it, subject to the 10% deduction that I have mentioned. It also provided locum cover, not at his surgery premises because of their unsatisfactory condition, but through another nearby medical practice for patients registered with him. Because those locum services were not provided at his own surgery premises, the PCT discontinued the notional rent for them that it had previously paid.
Thus, the effect of suspension was to prevent Dr Malik from using his surgery premises for performing services to his NHS patients and from performing NHS services anywhere else in the country. However, he remained free to provide services for any private patients at those premises or elsewhere.
The sole issue in the appeal is whether the PCT's unlawful suspension of Dr Malik amounted or gave rise to a deprivation of a “possession” so as to engage Article 1 of the Protocol. If it did, there is no dispute, given the Judge's unappealed finding[s] as to that unlawfulness, that it was unjustified.
If the claim were to proceed to the next stage of assessment of damages, there would be issues as to whether it was necessary to afford “just satisfaction” by way of an award of damages, pursuant to s. 8 of the Human Rights Act 1998 (“ HRA”) and, if so, how much, if any, loss Dr Malik had suffered as a result of his suspension, given that the PCT continued to pay him pursuant to reg. 13(17) of the Performers Lists Regulations.
Collins J's reasons for concluding that Dr Malik's inclusion on the performers list was a possession within Article 1 of the Protocol were, in summary as follows:
i) the European Court's judgment in showed that the right to practise a profession can be regarded as a “possession”;
ii) a licence to carry out an economic activity can be regarded as a “possession”, following the Court of Appeal's judgment in and the Judge's own ruling in , paragraphs 35–37; and
iii) inclusion in a performers list is “akin to the possession of a licence”, giving it “an intrinsic value in that it enables the doctor to practise”, and “suspension [from which] may well affect the economic value to him of his practice” in its possible effect on his patient numbers and hence his remuneration; see paragraph 38 of Collins J's judgment.
The case for the Secretary of State and the PCT
The Secretary of State's case on the appeal is that inclusion on a performers list is not a “possession”, and that suspension from it is not interference with it within Article 1 of the First Protocol. Mr Coppel submitted that:
i) the hope or expectation of earning income in the future is not a “possession”;
ii) assets of a business or a profession, including its goodwill, may amount to a possession;
iii) an unmarketable or otherwise un-transferable licence or permission to conduct a business or to follow a profession are...
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