Tehrani v UK Central Council for Nursing, Midwifery and Health Visiting
| Jurisdiction | Scotland |
| Judgment Date | 25 January 2001 |
| Docket Number | No 45 |
| Date | 25 January 2001 |
| Court | Court of Session (Outer House) |
OUTER HOUSE
Lord Mackay of Drumadoon
Administrative law—Judicial review—Disciplinary proceedings—UK Central Council for Nursing, Midwifery and Health Visiting initiating disciplinary proceedings against a registered nurse which could lead to removal of her name from the register—Whether constitution and procedures of disciplinary committee were compatible with her right to a fair and public hearing by an independent and impartial tribunal—Human Rights Act 1998 (cap 42), secs 1(1), 4(4) and 6 and sched 1—European Convention on Human Rights, art 6(1)—Nurses, Midwives and Health Visitors Act 1997 (cap 24)1
Article 6(1) of the European Convention on Human Rights provides,inter alia, “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Section 6(1) of the Human Rights Act 1998 enacts that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. The UK Central Council for Nursing, Midwifery and Health Visiting is constituted in terms of the Nursing, Midwives and Health Visitors Act 1997. Section 7 thereof imposes on it a duty to maintain a register of qualified nurses, midwives and health visitors. Sections 10, 11 and 12 provide for the making of rules, and for the constitution of two committees to regulate and carry out disciplinary proceedings: the Preliminary Proceedings Committee (the “PPC”) and the Professional Conduct Committee (the “PCC”). The role of the PPC includes investigating complaints against practitioners and determining whether charges of professional misconduct should be brought against them. The role of the PCC is to determine such charges. A number of sanctions may be applied by the PCC, including removal of a practitioner's name from the register. Section 12 provides for a right of appeal to the Court of Session (in Scotland) by a practitioner aggrieved by a decision to remove his name from the register. Rules made under the statute provide for procedures to be followed by the PCC. The disciplinary procedures are partly governed by statute and partly by administrative practices which have been adopted. The procedure followed by the PCC has some similarities to that adopted by other statutory tribunals, but the rules as to the admissibility of evidence are more flexible, and a hearing can proceed in the absence of the practitioner. A finding of misconduct is only made when the PCC is satisfied beyond reasonable doubt that the practitioner has been guilty of misconduct. Its findings are announced in public, and reasons are given for its decisions.
The petitioner was a registered nurse who received notice from the respondents that disciplinary proceedings had been initiated against her. The charge was that she was guilty of misconduct in failing to be in attendance for a minimum number of hours at the nursing home for which she was responsible. The charge was to be investigated at a meeting of the respondents' Professional Conduct Committee. The petitioner brought a petition for judicial review, seeking declarator that the respondents' decision to hold the
meeting was unlawful because it was incompatible with her rights under the European Convention on Human Rights to a hearing by an independent and impartial tribunal; and seeking reduction of the decision. The petitioner argued that the hearing of the charge against her by the PCC would constitute a determination of her civil rights and obligations, within the meaning of art 6(1) as set out in sched 1 to the Human Rights Act 1998. She argued that the PCC was not an independent and impartial tribunal. The parties agreed that the first hearing should be confined to consideration of (i) whether the proposed disciplinary proceedings could lead to a determination of the petitioner's civil rights and obligations; (ii) if so, whether the PCC must meet all the requirements of an independent and impartial tribunal within the meaning of art 6(1); (iii) whether the proposed disciplinary proceedings would constitute a determination by an independent and impartial tribunal, within the meaning of art 6(1); and (iv) whether the PCC met all the requirements of such a tribunal.Held (1) that the proposed disciplinary proceedings could lead to a determination of the petitioner's civil rights and obligations, because if her name was removed from the register she would for all practical purposes be prevented from pursuing her career as a nurse, at least in the UK (pp 595F, 596C–E); (2) that the petitioner's rights under the European Convention on Human Rights did not require the respondents' PCC itself to be an independent and impartial tribunal, because by virtue of her right of appeal to the Court of Session if her name was removed from the register, the decision of the tribunal was subject to subsequent control by a court which did provide the guarantees required by art 6(1) (pp 598A–601C); and (3) that the proposed disciplinary proceedings could constitute a determination by an independent and impartial tribunal within the meaning of art 6(1) where the PCC decided to remove a practitioner's name from the register, because the right of appeal to the Court of Session had to be construed in a way which was compatible with Convention rights, and so had to be viewed as unrestricted (p 601E–H) and petition put out by order for discussion of further procedure.
Opinion reserved on all issues relating to the scope for judicial review of a decision of the committee to take disciplinary steps falling short of removal of a practitioner's name from the register (p 602D).
Observed that there was no substance in a challenge to the independence and impartiality of the PCC based on the involvement of members drawn from consumer organisations in the fields of health and social care; nor one based on the limited role of the legal assessor, or the role of the respondents' officials; but that there was some basis for objective concern on the ground that the same individuals who sat on the PCC also sat on the PPC which took decisions to initiate proceedings, and on the grounds that proceedings before the PCC took place in the name of the respondents, and that a hearing before the PCC could involve considering the extent to which the practitioner had complied with a code made by the respondents; so that had it been necessary to decide whether the PCC viewed on its own would constitute an independent and impartial tribunal meeting all the requirements of art 6(1), the court would have found that it did not (pp 607B–609D).
Carr v UKCC for Nursing, Midwifery and Health Visiting1989 SLT 580 not followed.
Marguerite Yvonne Simpson Tehrani presented a petition to the Court of Session seeking declarator that a decision of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting to hold a meeting of its Professional Conduct Committee to determine a disciplinary charge against the petitioner was unlawful, and for reduction. An alternative remedy for declarator of incompatibility in terms of sec 4(2) or 4(4) of the Human Rights Act 1998 was sought in the petition, but not insisted on at the first hearing. The United Kingdom Central Council for Nursing, Midwifery and Health Visiting were called as respondents. The Secretary of State for Health was also represented by counsel at the first hearing. During the first hearing the petition was intimated to the Scottish Ministers, who were thereafter represented by counsel.
The facts of the case and the parties' submissions are sufficiently set forth in the opinion of the Lord Ordinary (Lord Mackay of Drumadoon).
Cases referred to:
Albert and Le Compte v BelgiumHRC Series A No 58 (1983); 5 EHRR 533
Bryan v United Kingdom Series A No 335–A (1995); 21 EHRR 342
Carr v UKCC for Nursing, Midwifery and Health Visiting1989 SLT 580
Clancy v CairdSC 2000 SC 441
County Properties Limited v The Scottish Ministers2000 SLT 965
De Cubber v BelgiumHRC Series A No 86 (1985); 7 EHRR 236
Findlay v United Kingdom App No 22107/93(1997); 24 EHRR 221
Gautrin and Others v France App Nos 21257/93–21260/93 (1999); 28 EHRR 196
H v BelgiumHRC Series A No 127 (1987); 10 EHRR 339
Le Compte, Van Leuven and De Meyere v BelgiumHRC Series A No 43 (1981); 4 EHRR 1
Obermeier v AustriaHRC Series A No 179 (1991); 13 EHRR 290
R v Secretary of State for the Environment Transport and the Regions, ex parte Holding and Barnes plc; R v Secretary of State for the Environment Transport and the Regions, ex parte Premier Leisure; R v Secretary of State for the Environment Transport and the Regions, ex parte Alconbury Developments Ltd;Secretary of State for the Environment Transport and the Regions v Legal and General Assurance Ltd, unreported, QBD 13 December 2000
Starrs v RuxtonSC 2000 JC 208
Stefan v General Medical CouncilWLR [1999] 1 WLR 1293
Stefan v United KingdomHRC (1998) 25 EHRR 130
United Kingdom Central Council for Nursing v Brabazon-DrenningUNK, unreported, 31 October 2000
Wickramsinghe v United Kingdom (1998) EHRLR 338
WR v AustriaUNK, unreported, 21 December 1999, European Court of Human Rights
Textbooks, etc referred to:
Clayton and Tomlinson, The Law of Human Rights
Lester and Pannick, Human Rights Law and Practice
The cause called before the Lord Ordinary (Mackay of Drumadoon) for a first hearing on 19–22 December 2000.
At advising on 25 January 2001, it was put out By Order for a discussion of further procedure. It called By Order on 2 February 2001, and on the unopposed motion of the respondent, the court sustained its first plea in law and dismissed the petition.
LORD MACKAY of Drumadoon's Opinion—
[1] The petitioner is a nurse by profession. She was formerly the Matron of the Fuinary House...
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