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You are here: BAILII >> Databases >> European Court of Human Rights >> Marta STEFAN V United Kingdom - 29419/95 [1997] ECHR 203 (09 December 1997) URL: http://www.bailii.org/eu/cases/ECHR/1997/203.html Cite as: [1997] ECHR 203, (1998) 25 EHRR CD 130, 25 EHRR CD 130 |
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AS TO THE ADMISSIBILITY OF
Application No. 29419/95
by Marta STEFAN
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 9 December 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 July 1995 by
Marta STEFAN against the United Kingdom and registered on
1 December 1995 under file No. 29419/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
4 May 1997 and the observations in reply submitted by the
applicant on 21 July 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a naturalised British subject of Polish origin
born in 1935. She is represented before the Commission by Bindman and
Partners Solicitors, London.
A. The particular circumstances of the case
The applicant was first granted temporary registration as a
doctor by the General Medical Council ("GMC") in 1967, when she spent
six months at a London hospital as part of her Polish post-graduate
medical studies. She returned to the United Kingdom from Poland in
1972, and worked as an overseas practitioner registered under her
Polish qualifications in a series of hospital posts. She obtained
registrable British medical qualifications in 1979. The same year she
applied to the GMC for registration. Her application for full
registration was rejected in 1980, on the ground that she lacked the
prescribed experience. The applicant continued to be employed in a
series of hospitals under limited registration. In 1985, after
investigation by the GMC as to her fitness to practise, the applicant
was granted provisional registration. In January 1987 the applicant
appeared with legal representation before the Overseas Sub-Committee
of the GMC, in relation to information received about her professional
competence and claims which she had made as to her experience in an
application for full registration. The Sub-Committee concluded that
the applicant should be permitted to apply for further limited
registration for six months in closely supervised posts. The applicant
did not subsequently apply for such registration, but continued to hold
provisional registration.
Due to a complaint by a patient in April 1992, the GMC commenced
an investigation into the applicant's fitness to practise. The
applicant was examined by three psychiatrists, two chosen by the GMC
and one by the applicant herself. After a hearing on 21 June 1993, the
Health Committee of the GMC found that the applicant's fitness to
practise was seriously impaired, and directed that her registration
should be conditional on compliance with certain conditions. She
appealed to the Privy Council, which on 9 December 1993 found no
question of law and dismissed the appeal stating in its judgment:
"their Lordships have examined all the papers and all the
material that was before the Health Committee. From the evidence
which was before the Health Committee, it seems to their
Lordships that not only was there no error in law but that the
Committee were inevitably driven to make the order which they did
make."
On 20 June 1994 the Health Committee, after consideration of a
further medical report which diagnosed the applicant as suffering from
a paranoid disorder, again imposed conditions on the applicant's
registration, this time for a period of eight months.
On 23 February 1995, the Health Committee found that the
applicant's fitness to practise was seriously impaired. It asked the
applicant whether she was prepared to accept certain conditions
relating to her remaining under medical supervision and having
limitations placed on the scope of her professional practice. It
appears that she did not agree to the conditions, and her registration
was suspended for a period of eight months.
The applicant appealed against the Health Committee's decision
to the Judicial Committee of the Privy Council. In her speech to the
Privy Council the applicant claimed, inter alia, that there were no
health grounds to suspend her and that there was no evidence of any
malpractice or breach of law or regulations on her part. The Privy
Council held:
"[The applicant] has addressed the Board and submitted a
written case which their Lordships have carefully
considered. Their Lordships are unable to identify any
question of law, just as the Board were likewise unable to
find such a question on her previous appeal. There is no
doubt that on the material before the Health Committee they
were entitled to make the direction which they did. In the
circumstances their Lordships will humbly advise Her
Majesty that this appeal ought to be dismissed."
The Privy Council dismissed the appeal on 17 July 1995 after a
public oral hearing which the applicant attended. The suspension then
took effect.
On 21 February 1996 the Health Committee again judged the
applicant's fitness to practise to be seriously impaired and directed
further suspension of her registration for a period of 12 months. The
applicant appealed to an Industrial Tribunal, which on 3 October 1996
dismissed her claims, as Industrial Tribunals have no jurisdiction over
the Health Committee.
On 24 February 1997 the Health Committee, after a further
hearing, informed the applicant that they judged her fitness to
practise to be seriously impaired and that her registration would be
suspended for a further 12 months. On 17 March 1997 the applicant
appealed against this decision to the Privy Council. This appeal was
dismissed.
B. Relevant domestic law and practice
The Health Committee of the GMC consisted in February 1995 of
13 members comprising: the President of the GMC (or some other member
appointed by the President); a member of the GMC appointed by the
President; six elected members of the GMC; three appointed members of
the GMC and two lay (non-medical) members. The quorum for a hearing
is five members. No member of the Health Committee may sit on a case
if that person has previously considered the same case, either as a
member of another committee or in preliminary stages of the proceedings
before the Health Committee.
Once a case has been referred to the Health Committee, the
practitioner is served with a notice of referral, which indicates the
condition by reason of which it is alleged that his/her fitness to
practise is seriously impaired. The practitioner is informed of the
time and place of the hearing and sent a copy of the Rules relating to
such hearings and copies of any reports or other documents which it is
proposed to present to the Health Committee. No documents may be
placed before the Health Committee unless copies have been previously
sent to the practitioner. The practitioner is also informed of the
right to legal representation and the right to examine orally any
author of a report which will be before the Health Committee.
One or more medical assessors are appointed by the President of
the GMC to attend meetings of the Health Committee, in order to advise
on the medical significance of the information before the Committee.
The medical assessors are chosen having regard to the nature of the
condition alleged to impair the fitness of the practitioner and at
least one of the medical assessors must be engaged in the same branch
of medical practice as the practitioner. There is also a legal
assessor, a senior barrister or solicitor, to advise on points of law.
The legal assessor is present at, but does not take part in,
deliberations.
The Health Committee meets in private and its proceedings are
confidential. The practitioner, however, is entitled to be present
during consideration of the case and may be legally represented. The
GMC is usually represented by its solicitor. The solicitor for the GMC
calls evidence and witnesses before the Health Committee. The
practitioner has the right to cross examine these witnesses, call
witnesses on his/her own behalf and make submissions to the Health
Committee.
The Health Committee considers whether a doctor's fitness to
practise is seriously impaired by a physical or mental condition. If
the Health Committee makes a finding of serious impairment it may,
under Section 37 of the Medical Act 1983, impose conditions upon, or
suspend (for a period of up to 12 months), the doctor's registration.
In every case of suspension, consideration of the case is resumed at
the expiry of the suspension period. The Health Committee does not
have the power to erase a practitioner from the registrar.
A practitioner may appeal to the Judicial Committee of the Privy
Council against any direction of the Health Committee ordering
conditional or suspended registration. Such appeals are governed by
Section 40 of the Medical Act 1983.
Section 40 (1) of the Medical Act 1983 states:
"The following decisions are appealable decisions for the
purposes of this section, that is to say -
...
(b) a decision of the Health Committee under Section 37
above giving a direction for suspension or for conditional
registration or varying the conditions imposed by a
direction for conditional registration;..."
However, by virtue of Section 40 (5) of the Medical Act 1983,
"No appeal under this section shall lie from a decision of
the Health Committee except on a question of law."
For the purposes of English administrative law, an appeal to a
court on a "point of law" or a "question of law" includes a review as
to whether a decision or inference based on a finding of fact is
perverse or irrational. The court will also grant a remedy if the
impugned decision was such that there was no evidence to support a
particular finding of fact, or the decision was made by reference to
irrelevant factors or without regard to relevant factors; or made for
an improper purpose, in a procedurally unfair manner or in a manner
which breached any governing legislation or statutory instrument. The
court of review cannot substitute its own decision on the merits of the
case for that of the decision-making authority.
On an appeal under Section 40 (1) of the Medical Act 1983 the
Privy Council may recommend in its report to Her Majesty in Council:
that the appeal be dismissed; that the Health Committee's direction be
quashed; that any other direction as the Health Committee could have
made be substituted; or that the case be remitted to the Health
Committee for it to dispose of the case in accordance with the
directions of the Privy Council.
COMPLAINTS
The applicant complains that she has been denied the right to
work, as well as freedom of expression and beliefs. She considers that
she has been subjected to racial discrimination. She makes a series
of allegations of malpractice on the part of the medical profession.
She alleges violations of Articles 7, 8, 9, 10 and 14 of the
Convention.
She also complains about a denial of a fair court hearing and
alleges a violation of Article 6.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 July 1995 and registered on
1 December 1995.
On 17 January 1997 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 4 May
1997, after an extension of the time-limit fixed for that purpose. The
applicant replied on 21 July 1997, also after an extension of the time-
limit.
On 28 May 1997 the Commission granted the applicant legal aid.
THE LAW
1. The applicant complains that the proceedings before the Health
Committee and the subsequent appeal to the Privy Council which resulted
in the suspension of her registration as a medical practitioner did not
afford her a "hearing ... by an independent and impartial tribunal",
as required by Article 6 para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention provides, in so
far as relevant, as follows:
"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 ..."
The Government submit that the evaluation of the fitness of an
individual to practise on medical grounds does not constitute a
determination of the applicant's civil rights and obligations within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. They
rely on the case of Van Marle v. Netherlands (Eur. Court HR, judgment
of 26 June 1986, Series A no. 101), where a majority of the Court held
that Article 6 was not applicable to a dispute concerning individuals'
registration as certified accountants.
In the alternative, the Government claim that if the proceedings
relating to the applicant's fitness to practise are deemed to fall
within Article 6 para. 1 (Art. 6-1) of the Convention, they were in
compliance with the requirements of that Article. In particular they
submit that:
(i) the hearing before the Health Committee was by an
independent and impartial tribunal;
(ii) the hearing before the Health Committee was held in private
for the protection of the private life of the applicant;
(iii) in any event, the domestic proceedings as a whole must be
considered and the applicant enjoyed a right of appeal to the
Judicial Committee of the Privy Council, which had power to quash
or vary the direction of the Health Committee or to remit the
case for reconsideration by the Health Committee.
The applicant alleges that the proceedings relating to her
fitness to practise as a doctor fall within the ambit of Article 6
para. 1 (Art. 6-1). She contends that the GMC acts in the proceedings
as investigator, prosecutor and adjudicator and that as such the Health
Committee was neither in substance nor appearance an independent and
impartial tribunal. In particular, she points out that all of the
members of the Health Committee are members of the GMC, and that the
elected, appointed and lay members are elected by the GMC to sit on the
Committee. She adds that the role of the legal assessor is purely
advisory. In addition, the applicant underlines that the GMC not only
provides all the members of the tribunal, but is also charged with
functions central to the doctor's professional future and reputation
and to the conduct and progress of the proceedings before the Health
Committee. She points out expressly that the GMC maintains the
register of medical practitioners; that it is responsible for the
receipt of complaints and for their investigation and initial
assessment; that in the proceedings before the Health Committee, the
GMC's solicitor drew the Committee's attention to the fact that the
applicant had not previously complied with a condition imposed on her;
and that the Committee was empowered to suspend the applicant for a
period of up to 12 months. The applicant also points to the extensive
powers of the President of the GMC himself.
Further, the applicant submits that the jurisdiction and review
by the Privy Council were not of sufficient scope to justify a finding
that the proceedings considered as a whole were in conformity with
Article 6 para. 1 (Art. 6-1). In particular she notes that an appeal
from the Health Committee to the Privy Council lay only on a question
of law. She submits that the present case should be distinguished from
the case of Bryan (Eur. Court HR, Bryan v. the United Kingdom judgment
of 22 November 1995, Series A no. 335-A), a case concerning the refusal
of planning permission after a review by a government planning
inspector whose decision was then reviewed by the High Court. In the
case of Bryan, the Court found that, although the requirements of
Article 6 para. 1 (Art. 6-1) of the Convention were not met before the
inspector, there was no violation of Article 6 para. 1 (Art. 6-1) due
to the sufficiency of the scope of review by the High Court. In the
present case, there was no carefully reasoned decision by the Health
Committee which could be considered on appeal, and the issue of the
fitness of a doctor to practise does not involve a "specialised area
of law" as was considered the case with regard to planning law issues
in Bryan.
The Commission notes that the proceedings against the applicant
were conclusive for her ability to continue practising as a doctor.
Further, the contested nature of the proceedings leaves no doubt as to
the existence of a "contestation" as to whether the applicant was or
was not mentally fit to practise as a doctor. The Commission considers
that the present case is distinguishable from the case of Van Marle and
Others v. Netherlands (Eur. Court HR, judgment of 26 June 1986,
Series A no. 101, p. 12, para. 36). In that case, which concerned a
complaint by applicants who had been denied registration as
accountants, the Court commented:
"An assessment of this kind, evaluating knowledge and experience
for carrying on a profession under a particular title, is akin
to a school or university examination and is so far removed from
the exercise of the normal judicial function that the safeguards
in Article 6 (Art. 6) cannot be taken as covering resultant
disagreements."
The present case did not concern an evaluation as to whether the
applicant had sufficient education and experience to hold the title of
doctor. Rather, it concerned an investigation into whether a
provisionally registered doctor had the mental fitness to continue
practising. It cannot be said that the Health Committee hearing was
akin to a school or university examination.
The proceedings therefore determined the applicant's "civil
rights and obligations" and thus fall within the ambit of Article 6
para. 1 (Art. 6-1) (see Eur. Court HR, Le Compte, Van Leuven and De
Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, pp. 20-22,
paras. 44-50).
The Commission will first consider the question of the
independence and impartiality of the Health Committee.
The Commission recalls that in order to establish whether a body
can be considered "independent", regard must be had, inter alia, to the
manner of appointment of its members and to their term of office, to
the existence of guarantees against outside pressures and to the
question whether the body presents an appearance of independence (see
above mentioned Bryan judgment at p. 15 para. 37 referring to Eur.
Court HR, Langborger v. Sweden judgment of 22 June 1989, Series A
no. 155, p. 16, para. 32). There is no indication in the case-law of
the European Court of Human Rights that the mere fact that disciplinary
proceedings against professional persons are determined by members of
the profession amounts to a lack of "independence", even when the
professional body concerned regulates a number of functions of the
profession (as was the case in Eur. Court HR, H. v. Belgium judgment
of 30 November 1987, Series A no. 127-B, p. 35, paras. 50, 51).
It is true that problems of impartiality may arise if the members
of the determining body have personally been involved in prosecuting
the disciplinary proceedings at an earlier stage (see Gautrin and
others v. France, Nos. 21257/93 to 21260/93, Comm. Report 26.11.96,
pending before the European Court of Human Rights, where the Commission
found a violation of Article 6 (Art. 6), and Eur. Court HR, Diennet v.
France judgment of 26 September 1995, Series A no. 325-A, pp. 16-17,
paras. 36-39 where, on the facts of the case, the Court found no
violation of Article 6 (Art. 6)), but those problems do not necessarily
impinge on the independence of the determining body. There has been
no allegation of bias or lack of impartiality on the part of the
members of the Health Committee in the present case.
As to the proceedings before the Health Committee in the present
case, the Commission notes the presence of a number of procedural
guarantees of a type frequently met before tribunals: no individual
members of the GMC who had previously been involved with the case could
sit on the Health Committee; legal representation was available;
extensive disclosure of documents took place, and the applicant could
call her own witnesses and cross-examine GMC witnesses.
There remain, however, areas in which the independence of the
Health Committee may be seen to be open to doubt. In particular, there
is no indication that any attempt is made to ensure that the members
of the Health Committee determine cases independently of the GMC's
general policies, and members of the Health Committee appear to be
appointed on an ad hoc basis, rather than for any particular term.
Moreover, the President of the GMC plays an extensive, though not
necessarily direct and personal, role in the investigation of
complaints at the earlier stages of proceedings. Further, the sole
legal advisor in the case - the legal assessor - is given no role
whatever in the deliberations of the Committee. Given these factors,
the Commission does not consider that the guarantees of independence
which do exist - principally the limitation on individual members
sitting where they have had personal previous contact with the case -
suffice to ensure the required appearance of independence.
However, "even where an adjudicatory body determining disputes
over 'civil rights and obligations' does not comply with Article 6
para. 1 (Art. 6-1) in some respect, no violation of the Convention can
be found if the proceedings before that body are 'subject to subsequent
control by a judicial body that has full jurisdiction and does provide
the guarantees of Article 6 para. 1 (Art. 6-1)'" (Eur. Court HR, Bryan
v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A,
p. 16, para. 40).
The Commission must therefore examine whether the Privy Council
had such jurisdiction in the present case. In the case of Bryan, the
Court gave examples of what matters were relevant to assessing the
adequacy of the review on a point of law in that case: "the subject-
matter of the decision appealed against, the manner in which that
decision was arrived at, and the content of the dispute, including the
desired and actual grounds of appeal" (above-mentioned Bryan judgment,
p. 17, para. 45).
As to the subject matter of the decision appealed against, the
Commission notes that the decision in the present case concerned
primarily not legal questions but the ultimately medical question of
the applicant's mental fitness to practice. That such a question is
determined in the first place by doctors does not of itself give rise
to concern: indeed, it is an issue on which a Health Committee,
consisting of, among others, medical members and assisted by one or
more medical assessors with special expertise, is particularly well
qualified to determine. Moreover, any such determination is subject
to judicial review, the Privy Counsel being empowered in any appeal to
set aside a factual finding by the Committee which is not supported by
any evidence or which is perverse or irrational.
In connection with the manner in which the decision in question
was arrived at, the Commission observes, as it noted above, that a
number of procedural guarantees were available to the applicant in the
proceeding before the Health Committee, such as the safeguards against
personal bias, the availability of legal representation and extensive
disclosure of documents. Had there been any procedural shortcomings
in the procedure, the applicant could have raised them in the
proceedings before the Privy Council, which can clearly consider issues
of procedural fairness.
With regard to the content of the dispute, including the desired
and the actual grounds of appeal, the Commission notes that the
applicant, unlike the applicant in the case of Bryan, was making a
comprehensive challenge to the decision of the Health Committee of
23 February 1995, as she had previously challenged the substance of the
Health Committee's decision of 21 June 1993.
However, it is of the nature of a review of the decision of a
disciplinary body that the reviewing authority reviews the preceding
proceedings, rather than taking factual decisions (see, in the planning
context, the above-mentioned Bryan judgment, p. 17, para. 44). The
question for the Commission in a given case is whether the grounds for
appeal were dealt with in a manner which limited access to court in a
manner incompatible with Article 6 (Art. 6) of the Convention. In the
present case, the applicant was challenging the medical findings of the
Health Committee in the context of an appeal on questions of law. In
the event, the Privy Council simply made a statement that there was no
doubt that the Health Committee's direction fell within its competence.
The Commission interprets this statement as a finding that the Health
Committee's decision could not be faulted on the questions of law which
could be raised before it. In the light of the above considerations
as to the proceedings before the Health Committee and the subsequent
review required by Article 6 (Art. 6), the fact that the Privy Council
did not re-determine the facts of the case cannot be seen to conflict
with the requirements of that provision.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains of a violation of Articles 7, 8, 9,
10 and 14 (Art. 7, 8, 9, 10, 14) of the Convention. The applicant
provides no substantiation for any of these complaints and in the light
of all the material in its possession and in so far as the matters
complained of are within its competence, the Commission finds them to
be manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber