AS TO THE ADMISSIBILITY OF
Application No. 16632/90
by Richard COLMAN
against the United Kingdom
The European Commission of Human Rights sitting in private on
5 September 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
G. SPERDUTI
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 May 1990
by Richard COLMAN against the United Kingdom and registered on
30 May 1990 under file No. 16632/90;
Having regard to:
- reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 7 September 1990 to bring
the application to the notice of the respondent Government
and invite them to submit written observations on its
admissibility and merits ;
- the observations submitted by the respondent Government on
21 December 1990 and the observations in reply submitted
by the applicant on 12 February 1991 ;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1949, resident in
York. He is a medical practitioner in private general practice with
particular interest in the holistic approach to health care. The
applicant is represented before the Commission by Messrs. Bindman and
Partners, Solicitors, London.
The facts of the present case, as submitted by the parties,
may be summarised as follows:
The applicant has been a registered medical practitioner since
1975. When working in the National Health Service (N.H.S.) his
experience led him to hold opinions which accord with the "holistic"
approach to health care. This involves not just treating patients,
but trying to help them to explore the cause of their problems and to
take more responsibility for their remedy.
In 1985 he established a practice in York named the "Holistic
Counselling and Education Centre". He took various measures to make
available the information that this practice had been established,
namely :
(a) In August 1985 writing to 140 general practitioners in and
about York.
(b) In August 1985 leaving his business card and a letter of
explanation with the Family Practitioners Committee, the
Citizen's Advice Bureau, and the Central Library in York.
(c) In May 1986 supplementing the information in (b) above
with a practice information sheet.
(d) Attempting to place an entry in the "Yellow Pages" telephone
directory identifying himself as a private practitioner
(British Telecom refused, their policy being not to make a
distinction between private and N.H.S. practitioners).
(e) In September 1985 being interviewed by the press, which
resulted in a rebuke from the chairman of the Local Medical
Committee;
(f) In November 1985 requesting the chairman of the Local
Medical Committee to circulate to local practitioners
information about his practice. He received no reply.
(g) Thereafter making other fruitless efforts to publicise
information, in particular by proposing, without success,
to give talks.
He then considered the insertion of advertisements in local
newspapers. Recognising that this did not appear to accord with the
Guidance issued by the General Medical Council (G.M.C.), he wrote on
30 March 1987 seeking their advice on the question of practice
advertising and professional ethics. He stated that he would like to
place information in local newspapers as to his qualifications, the
location and hours of his practice, the services offered and the fees
charged.
The G.M.C. is a statutory body, presently governed by the
Medical Act 1983, with powers under section 35 of that Act to assist
doctors in matters of professional conduct and discipline. It
maintains a register of medical practitioners who are entitled to
practise in the United Kingdom. It exercises disciplinary functions
over registered practitioners and may ultimately remove a practitioner
from the register for serious professional misconduct. It is thus
responsible for ensuring that standards of professional conduct are
maintained.
On 18 May 1987 the applicant was informed by the G.M.C. that
to advertise in the local press could lead to disciplinary action
against him for the improper promotion of his practice. He was also
informed that he could make available at public libraries and other
information centres information about his practice, alongside that
given by other doctors in the area.
Such advertising restrictions on doctors did not extend, for
example, to private hospitals, over which the G.M.C. has no control.
Private clinics were thus entitled to advertise their services.
Virtually all other professions in the United Kingdom, including
dentists, had lifted advertising restrictions on their members.
On 10 August 1987 the applicant applied by way of judicial
review for a declaration that the G.M.C.'s decision and policy on the
dissemination of information by doctors was unlawful on the grounds,
inter alia, that it was disproportionate for the following reasons:
a) it went much further than was required to secure the
legitimate protection of medical practitioners and
patients,
and b) it was unlawful because, inter alia, it was a restraint
on the applicant's freedom of expression contrary to
Article 10 of the Convention.
In November 1987 the Secretaries of State for Social Services,
Wales, Northern Ireland and Scotland presented to Parliament a white
paper proposing a loosening of the restraints on doctors' rights to
advertise their services.
On 25 November 1988 the Divisional Court rejected the
applicant's application, awarding costs against him. It held that the
G.M.C. had exercised its discretion reasonably. On the question of
the applicability of Article 10 of the Convention the Divisional Court
further held that the European authorities "though interesting and of
some help on the broad principles to be applied, do not assist on the
particular issues raised ... given the well-established legal
framework for intervention by the English court ... It is for the
applicant to establish that the G.M.C. has in its guidance to him
unreasonably interfered with his freedom of speech so as to render that interference unlawful ..." (As a matter of English law, administrative decisions can only be challenged if they are irrational, illegal or procedurally improper.) In the meantime on 24 May 1987 the G.M.C.'s rules on doctors' advertising were referred to the Monopolies and Mergers Commission (the M.M.C.). In March 1989 the M.M.C.'s report, which concluded that the G.M.C.'s rules were not in the public interest, was presented to Parliament. The Secretary of State for Trade and Industry accepted the M.M.C.'s report and asked the Director General of Fair Trading to negotiate with the G.M.C. to implement the M.M.C.'s recommendation to loosen the restrictions. On 6 December 1989 the Court of Appeal dismissed the applicant's appeal against the decision of the Divisional Court, again awarding costs against the applicant. The Court of Appeal held that the G.M.C. had not been unreasonable or disproportionate in the exercise of its discretion. It also rejected the applicant's arguments under Article 10 of the Convention as follows: "... it is a principle of construction of United Kingdom statutes, now too well established to call for citation of authority, that the words of a statute passed after the treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it ... It is not clear ... that, in this case, there is, in the same sense, any identifiable subject matter within section 35 of the 1983 Act which can properly for this purpose be regarded as the subject matter of any international obligation of the United Kingdom under the Convention ... To use that principle reviewing by the court of the substantial validity of the action or decision in question, which is otherwise lawful as within the powers given, and to carry out that review on the basis of the court's judgment as to what amounts to 'conditions, restrictions or penalties as ... are necessary in a democratic society ... for the protection of health or morals ...' within Article 10 para. 2 is to misapply it for a purpose for which it was ... plainly not intended." On 4 January 1990 the applicant lodged a petition with the House of Lords for leave to appeal. It was rejected on 26 February 1990. Since the introduction of the application to the Commission the G.M.C. has revised its advertising rules to allow, inter alia, the publication in the press of factual information about doctors' services. COMPLAINTS The applicant complains that the G.M.C.'s policy, before May 1990, restricting the dissemination of information by doctors about their professional practices was an unjustified interference by a public authority with the applicant's freedom of expression, contrary to Article 10 of the Convention. As a result he has been unable to develop a private practice from which he could earn a living. The applicant further complains that he did not have a remedy before a national authority with jurisdiction to hear his complaint in relation to Article 10 of the Convention, contrary to Article 13 of the Convention. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 11 May 1990 and registered on 30 May 1990. After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility of the application on 7 September 1990. It decided to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits. The Government's observations were submitted, after an extension of the time limit, on 21 December 1990, to which the applicant replied on 12 February 1991. THE LAW The applicant complains that the pre-May 1990 restrictions on doctors' professional advertising constituted an unjustified interference with his freedom of expression, contrary to Article 10 (Art. 10) of the Convention, the relevant part of which reads as follows: "1. Everyone has the right to freedom of expression. This right shall include freedom ... to receive and impart information ... without interference by public authority ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of health or morals, for the protection of ... the rights of others ..." The applicant also complains of a breach of Article 13 (Art. 13) of the Convention which guarantees a right to an effective domestic remedy for Convention claims of the above kind. The Government submit that the applicant can no longer claim under Article 25 (Art. 25) of the Convention to be a victim of a violation of Article 10 because the restrictions of which he complains were relaxed only three days after the introduction of his application to the Commission. Since November 1987 the Government have sought to persuade the G.M.C. to reform their advertising rules. The applicant's complaint was thus remedied as a result of the Government's efforts and his application serves no general purpose. Alternatively, if he can still claim to be a victim, they deny liability for the acts of the G.M.C., which they contend is not a public authority, not being financed, directed or controlled by them. Thus there was no interference with the applicant's Article 10 (Art. 10) rights by a public authority. Accordingly, the application in their view is incompatible ratione personae within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. Finally, the Government submit that the application is anyway manifestly ill-founded. The applicant states that he seeks a declaration, compensation and legal costs for the breach of his Convention rights. In particular he seeks compensation for the considerable financial loss he suffered as a result of the earlier G.M.C. restrictions on doctors' advertising. The domestic system failed to remedy the serious financial prejudice to him, hence he submits that he can still claim under Article 25 (Art. 25) to be the victim of a violation of Article 10 (Art. 10) of the Convention. The applicant contends that the G.M.C. is a public authority within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention which has interfered with his rights. He points out that the G.M.C. was established by an Act of Parliament, the Medical Act 1983, as a corporate body to regulate the medical profession. Under domestic law its acts, like those of other public law bodies, are subject to judicial review (cf. for similar public law bodies Eur. Court H.R., Barthold judgment of 25 March 1985, Series A no. 90, and Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43). Moreover the power to interfere with the applicant's freedom of expression stems from the state of the law itself, given the wide powers conferred by the aforementioned legislation on the G.M.C., which powers rendered the interference with the applicant's freedom of expression lawful under domestic law (cf. Eur. Court H.R., Young, James and Webster judgment of 13 August 1981, Series A no. 44, p. 20, para. 49). Finally the applicant submits that the interference with his freedom of expression by the G.M.C. was not necessary. He accepts that the protection of patients from misleading or manipulative advertising is a pressing social need which comes within the protection of health referred to in Article 10 para. 2 (Art. 10-2). He also accepts that a certain measure of protection should be afforded to doctors from unfair competition from their professional colleagues, being necessary for the protection of the rights of others, also envisaged by Article 10 para. 2 (Art. 10-2). However the protection afforded by the G.M.C.'s advertising rules before May 1990 was wholly disproportionate, imposing a blanket and indiscriminate ban on all announcements of the kind sought by the applicant. The Commission considers that the applicant may still claim under Article 25 (Art. 25) of the Convention to be a victim of a violation of Article 10 (Art. 10) even though the disputed rules were changed shortly after the introduction of his application to the Commission. This is because for three years the applicant was effectively prevented from advertising his private medical practice, which resulted in a loss of livelihood and the outlay of legal fees in his efforts to have the G.M.C's rules amended. The G.M.C.'s earlier restrictions on doctors' advertising constituted an interference with the applicant's freedom of expression, commercial speech being protected by Article 10 para. 1 (Art. 10-1) of the Convention (cf. Eur. Court H.R., Markt Intern Verlag GmbH and Klaus Beermann judgment of 20 November 1989, Series A no. 165, p. 17, para. 26). To ignore those restrictions would have led to disciplinary proceedings against the applicant which might have ended his career. Moreover the Commission finds that the G.M.C. is a public authority within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention, its functions having been established by legislation with a view to protecting, inter alia, the professional standards of the medical profession and, implicitly, safeguarding the public interest in this field. The G.M.C.'s acts may be subject to judicial review, a form of judicial control which in itself demonstrates the public nature of this body. There has thus been an interference with the applicant's freedom of expression by a public authority. The parties do not dispute that the interference was lawful and that, in principle, it pursued legitimate aims, namely the protection of health and the rights of others. However, whether in the circumstances of the case that interference was necessary in a democratic society within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention is a matter which raises complex issues of law and fact, the determination of which should depend on an examination of the merits of the application as a whole, including the applicant's complaint under Article 13 (Art. 13) of the Convention. The Commission concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established. For these reasons, the Commission by a majority DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD)
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