STEFAN v. THE UNITED KINGDOM



                      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

 

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