Petition Of Susan Dryburgh For Judicial Review Of Decisions Nhs Fife
| Jurisdiction | Scotland |
| Judge | Lord Burns |
| Neutral Citation | [2016] CSOH 116 |
| Year | 2016 |
| Published date | 02 August 2016 |
| Date | 02 August 2016 |
| Court | Court of Session |
| Docket Number | P1440/15 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 116
P1440/15
OPINION OF LORD BURNS
In the Petition of
SUSAN DRYBURGH
Petitioner;
for Judicial Review of decisions NHS Fife
Petitioner: McGuire; Digby Brown LLP
Respondents: MacNeill QC; Central Legal Office
Interested Party: Lindsay QC; Anderson Strathern LLP
2 August 2016
[1] This is a petition for judicial review of a decision of NHS Fife (the respondents) to refuse to allow the petitioner to have legal representation at a disciplinary hearing and at a forthcoming appeal hearing. The petitioner is a dental health nurse who has worked for NHS Fife at Victoria Hospital, Kirkcaldy and elsewhere for about 20 years. She has a qualification in orthodontics. In early June 2015 allegations were made against her that she had acted inappropriately involving activity with racist overtones.
[2] The allegation has been reported to Police Scotland but no criminal proceedings have been commenced. An investigation was carried out by the respondents. After disciplinary proceedings were started, her solicitors sought confirmation that they would be entitled to represent her at the forthcoming hearing. By letter 13 October 2015 the respondents intimated that they had decided to refuse to allow her to be legally represented since she was not contractually entitled to such representation.
[3] The disciplinary hearing took place on 19 October 2015. The petitioner is said to have been unable to attend the hearing due to ill‑health and it took place in her absence. The allegations made against her were found to have been established and she was summarily dismissed. The decision was intimated to her by letter dated 30 October 2015. She exercised her right to appeal against her dismissal and was subsequently informed by the respondents that she would not be permitted to have legal representation at the appeal which had been due to take place on 6 January 2016. This petition was raised on 24 December 2015 and by interlocutor dated 30 December 2015 the court pronounced interdict ad interim preventing the appeal hearing taking place without legal representation.
[4] The respondents intimated the reasons for her dismissal to the General Dental Council (the GDC). The GDC operates a registration scheme in the United Kingdom for dentists and for dental care professionals including the petitioner. Registration is a prerequisite for working as a dental nurse within the United Kingdom. The petitioner is so registered but, as a result of the allegations made, proceedings may be taken against her which could result in the withdrawal of her registration and, accordingly, the inability of the petitioner to work as a dental nurse in the United Kingdom.
[5] By letter dated 11 December 2015 the GDC informed the petitioner that it had decided that the allegations made against her amounted to an allegation that “her fitness to practise as a dental nurse is impaired” and the matter had been referred to the investigating committee of the GDC. The matter may be referred to the practice committee to consider whether or not the petitioner’s fitness to practise is impaired but the procedure has been put on hold until the outcome of this petition is known.
[6] A preliminary issue in relation to the competency of the petition is raised by the respondents in their second plea-in-law on the basis that the decisions which are challenged in this petition are not susceptible to judicial review. The same point is taken by the GDC as an interested party in their first plea-in-law.
The submissions for the petitioner
[7] Mr McGuire on behalf of the petitioner argued first that this matter was amenable to judicial review. A tripartite relationship existed in this case which rendered the decision of the respondents amenable to the supervisory jurisdiction of the court. The respondents are a statutory body exercising statutory powers which delegated responsibility for dealing with disciplinary matters concerning the petitioner to a specific committee within the organisation. It had exercised a discretion whether or not to allow legal representation at the disciplinary hearing and at appeal. That exercise was not concerned with or related to the contractual rights or obligations between the parties.
[8] The well-known principles set out in the case of West v Secretary of State for Scotland 1992 SC 385 at page 412 to 413 in relation to the necessary existence of the tripartite relationship should be applied in a flexible manner (see Crocket v Tantallon Golf Club 2005 SLT 663 at 672H to 673B).
[9] He referred to Blair v Lochaber District Council 1995 SLT 407 which involved the judicial review of a decision to suspend the chief executive of a District Council pending certain investigations. Lord Clyde in the Outer House held that the petitioner was seeking to enforce his right to work under his contract and the true nature of the dispute was contractual rather than administrative and dismissed the petition as incompetent. Mr McGuire argued that judicial review was open in situations even in the absence of a tri-partite relationship where there had been an excess of power in the exercise of an administrative function by a public authority and this was recognised by Lord Clyde.
[10] The case of Watt v Strathclyde Regional Council 1992 SLT 324, decided prior to West was also referred to by Mr McGuire. That case involved the pay and conditions of teaching staff employed by education authorities in Scotland which required to be determined by a statutory body whereupon each local authority were required to give effect to them. The statute expressly required the education authority to give effect to the settlement. The respondents were unwilling to implement the settlement formulated by the statutory body. The Inner House held that the decision not to give effect to the settlement was amenable to judicial review.
[11] Mr McGuire argued secondly that in the circumstances of this case article 6 was engaged upon the basis that the outcome of the petitioner’s disciplinary proceedings could, in practical terms, deprive her of the right to practise her profession as a dental nurse. He referred to the case of Kulkarni v Milton Keynes Hospital NHS Foundation Trust & another 2010 ICR 101 CA. There Lady Justice Smith, referring to the judgment of the European Court of Human Rights in Le Compte, Van Leuven and De Meyer v Belgium (1981) 4 EHRR 1, gave an obiter opinion to the effect that the European Court should be viewed as drawing a distinction on the one hand between cases where all that was at stake was the loss of a specific job, in which case article 6 would not be engaged. On the other hand where the effect of the disciplinary proceedings could be far more serious and could, as in the case of Le Compte, deprive an employee of the right to practise his or her profession, article 6 would be engaged. Mr McGuire submitted that that was the correct statement of the law and the effect of the disciplinary proceedings in the petitioner’s case could deprive her of the right to practise her profession. Article 6 was therefore engaged and the decision to refuse her legal representation breached her article 6 rights.
[12] Mr McGuire argued thirdly that the findings of the respondents’ disciplinary panel would have such an influence upon the proceedings before the practice committee of the GDC that I should conclude that the petitioner’s article 6 rights are engaged by the respondents’ disciplinary proceedings. The determination of the petitioner’s civil rights in respect of her ability to practise as a dental nurse would be determined by the findings of the respondents’ disciplinary panel because of the influence of those findings upon the result of the proceedings before the GDC. Her article 6 rights were breached and I should strike down the decision to refuse her legal representation.
[13] For that proposition he referred me to R(G) v Governors of X School (Secretary of State for the Home Department and another intervening) (2012) 1 AC 167. That case involved disciplinary proceedings against a teacher at a private school for sexual misconduct in which the claimant had been denied legal representation by the school governors at a hearing before a disciplinary committee consisting of three governors. Instead he was granted representation by a colleague or Trade Union representative. He was summarily dismissed and the matter was referred to the Independent Safeguarding Authority (ISA) under the Safeguarding Vulnerable Groups Act 2006 which was obliged to establish and maintain a “Children’s Barred List”. The result of the claimant being placed on that list would mean that he was unable to teach.
[14] The Supreme Court, having examined the jurisprudence of the European Court of Human Rights, found that where an individual was subject to two sets of proceedings only the second of which would explicitly determine a civil right of an individual, the question of whether article 6(1) of the Convention was engaged in the initial proceedings was to be approached on a pragmatic, context sensitive basis and, if the initial proceedings would be truly dispositive of the civil right or would cause irreversible prejudice in the later proceedings, then article 6 would be engaged. The majority found that test not to be met in the particular circumstances of the case standing the ability of the ISA to make its own findings in fact and bring its own independent judgment to bear as to the seriousness and significance of the allegation. There was no reason to suppose that it would be profoundly influenced by the opinion of the school governors as to how primary facts should be viewed.
[15] Lord Kerr of Tonaghmore dissented from a majority in that respect and concluded that the ISA would be profoundly influenced by the findings of the school governors and that the test set out above had been met in the particular circumstances of the case.
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