Fairness in Disciplinary Proceedings and Appeals - Preiss v General Dental Council

Introduction

It is well established that professional disciplinary proceedings engage the right to a fair hearing under Article 6(1) of the European Convention on Human Rights (Le Compte v Belgium (1981) 4 EHRR 1). In Preiss v General Dental Council [2001] All ER (D) 239 (Jul), the Privy Council has considered the fairness of the disciplinary procedures operated by the General Dental Council (GDC), and the Privy Council's role in hearing professional disciplinary appeals.

Mr Preiss, a registered dentist, was the subject of disciplinary charges in respect of a course of treatment which ultimately required one of his patients to have all of her teeth extracted. The GDC's Professional Conduct Committee (PCC) found Mr Preiss guilty of serious professional misconduct, and directed that he should be suspended from the Dentists' Register for twelve months. Mr Preiss appealed to the Privy Council.

The main issue for the Privy Council was whether the PCC satisfied the requirement of Article 6(1) that there must be a hearing before an 'independent and impartial tribunal'. This question required an analysis of the disciplinary system established under the Dentists Act 1984 and associated rules and regulations, a system which had several stages. First, when the GDC received a complaint it was considered by the Registrar. If the complaint raised a question of conduct concerning a particular dentist, the Registrar would refer the complaint to a 'Preliminary Screener'. Secondly, the function of the Preliminary Screener was to consider whether there might be a case to answer, and to initiate proceedings before the GDC's Preliminary Proceedings Committee (PPC) unless he considered that the case need proceed no further. The Preliminary Screener in Mr Preiss' case was the President of the GDC. Thirdly the PPC, which consisted of five members of the GDC plus two others, decided whether the case should be referred to the PCC. Finally, the allegations of serious professional misconduct were determined by the PCC, which consisted of the President and ten other members of the GDC.

In Stefan v United Kingdom (1999) 25 EHRR CD 130, the European Commission of Human Rights had expressed concerns about a comparable scheme operated at that time by the General Medical Council, noting in particular the lack of independence between the GMC and its Health Committee, and the extensive role of the GMC President in the scheme. Similarly, the Privy Council was prepared to accept that the GDC process would not comply with Article 6(1) without additional safeguards. It held that:

It has long been part of domestic law that those presenting or 'prosecuting' disciplinary matters should not also sit on the tribunal adjudicating upon the case. In Preiss the Privy Council rejected the appellant's argument that the role of the Preliminary Screener was prosecutorial, so this point did not arise. (For a recent case where this issue was considered, see R v Williams, Court of Appeal, 30 July 2001.) However, Article 6(1) can go further and require a separation between those making policy on behalf of a regulatory body and those sitting on the tribunal in particular disciplinary cases. The extent to which this issue is a problem in practice must be seen in the context of the next issue considered in this update - the availability of an appeal mechanism.

The European Court of Human Rights has held that, even if a tribunal does not itself comply with Article 6(1), the requirements of that Article may be satisfied if an appeal or review is conducted by a tribunal enjoying 'full jurisdiction' (Albert and Le Compte v Belgium (1981) 5 EHRR 433). The Privy Council therefore had to consider the question of which stage in the disciplinary process must comply with Article 6(1). Was it necessary for the GDC disciplinary process to provide a fair hearing, or was it sufficient that a fair hearing took place on appeal to the Privy Council?

In Stefan, a case concerning proceedings before the General Medical Council, the European Commission of Human Rights had ruled that the jurisdiction of the Privy Council provided a sufficient safeguard. In the same way, the Privy Council held in Preiss that the right of appeal from the PCC to the Privy Council 'saved the day'. Section 29 of the Dentists Act 1984, which confers the right of appeal, does not restrict the grounds on which an appeal may be made. The Privy Council therefore held that it could reconsider not only the PCC's exercise of its discretionary powers, but also its findings of fact and law, although it would be unusual to hear witnesses on an appeal. Earlier authorities had suggested that the findings of professional disciplinary committees should not be disturbed unless they were so 'out of tune' with the evidence that the evidence must have been misread (Libman v General Medical Council [1972] AC 217). However, in view of the requirement under section 3 of the Human Rights Act to interpret legislation consistently with Convention rights, and the need for an appeal with 'full jurisdiction,' the Privy Council held that that principle could no longer be regarded as definitive. The 'weaknesses ... in the dental disciplinary structure' at the time, along with breaches of the PCC Procedure Rules in that case, meant that the Privy Council was willing to substitute its own view for that of the PCC and recommend the lesser penalty of admonition.

Although the Privy Council was satisfied that it had undertaken a complete rehearing which complied with Article 6(1), it issued several warnings about disciplinary systems. First, a system which depended on an appeal to the Privy Council to satisfy Article 6(1) 'could not be commended'. Secondly, the system gave rise to a risk that a fair hearing might not take place within a reasonable time, as required by Article 6(1). Thirdly, there might be some circumstances where even a rehearing before the Privy Council would not suffice to satisfy Article 6(1).

Some disciplinary régimes - such as that operated by the GDC - have a statutory appeal mechanism, but many regulatory régimes do not. In those cases regulatory decisions by public bodies will only be challengeable by way of judicial review. Can judicial review cure defects at the lower level in the way that the appeal procedure did in Preiss?

The requirement for review by a body enjoying 'full jurisdiction' does not necessarily mean that the reviewing tribunal must be able to substitute its own view of the case for that of the original decision-maker. Rather, the meaning of 'full jurisdiction' can vary according to the nature of the decision and dispute in question. In planning cases, the European Court and the House of Lords have held that, despite its limited scope, judicial review is sufficient to satisfy Article 6 (Bryan v United Kingdom (1995) 21 EHRR 342; Alconbury [2001] UKHL 23).

In Alconbury Lord Clyde suggested that "a more exhaustive remedy" might be required to cure defects in professional disciplinary proceedings (para. 154). For example, in a case concerning disciplinary proceedings against a doctor, the Strasbourg Court had held that review proceedings before a court did not remedy the defects in the disciplinary proceedings because the court could not examine the full merits of the decision (Albert and Le Compte).

On the other hand, in more recent cases concerning the regulation of financial services professionals, the Strasbourg institutions have held that the availability of judicial review is sufficient. In APB Ltd v United Kingdom (1998) 25 EHRR 141, IMRO intervened in the business of an investment firm, and IMRO's Membership Tribunal subsequently found that the firm was not fit and proper to carry on investment business. The firm applied unsuccessfully for judicial review on the ground that important documents had not been made available to it. Referring to Bryan, the European Commission on Human Rights noted that this question could have been considered on judicial review, and held that the specialised nature of the matters considered by the disciplinary tribunal justified limiting the scope of review. Therefore judicial review was sufficient to ensure compliance with Article 6(1), and the applicant's complaint was inadmissible. The Commission made a similar decision in X v United Kingdom (1998) 25 EHRR 88, a case concerning a notice issued by the Secretary of State objecting to the applicant's appointment as chief executive of an insurance company. Unfortunately, the Privy Council was not referred to these authorities in Preiss.

The position is not entirely clear at present, but it appears that the availability of judicial review is likely to be sufficient to comply with Article 6(1) in most cases. The key question is whether the limited nature of judicial review has prevented the applicant from raising important points which would call into question the fairness of the entire disciplinary process. It has been suggested that the courts may become more interventionist in judicial review proceedings in order to ensure that they comply with the 'full jurisdiction' requirement, but it will be some time before we can say with any certainty whether this is happening.

The main lesson of Preiss is that, since the Human Rights Act came into force, Article 6(1) of the Convention requires professional bodies to ensure that their disciplinary procedures satisfy the requirement for an 'independent and impartial tribunal'. This will probably require a separation between their disciplinary and other functions, and greater involvement of non-members on disciplinary committees. Defects in this area will lead the Privy Council to take a more interventionist approach in dealing with disciplinary appeals (e.g. conducting full rehearings and overturning the decisions of professional disciplinary committees) in order to ensure that, viewed as a whole, the disciplinary scheme is fair. Where there is no right of appeal, the remedy will be by way of a claim for judicial review. Recent Strasbourg decisions suggest that judicial review will provide adequate guarantees of fairness, but the position is unclear and again it seems likely that the courts will become more interventionist in view of the need for review by a body with 'full jurisdiction'.

In deciding whether a statutory appeal or judicial review is an adequate way of remedying a defect at the administrative level, the courts will be influenced by the extent to which the administrative system was largely fair. If the system contained only minor defects a court will be more inclined to find that an appeal or review will cure any remaining Article 6 deficiencies, whereas if there is manifest unfairness at the administrative stage a court will not be so inclined to take this view. Again the message for regulators is to seek to ensure that disciplinary or other regulatory systems are set up in a way that goes as far as possible towards full compliance with Article 6.

In its decision, the Privy Council noted that the GDC was proposing to reform its constitution and establish a separate panel of professional and lay people to serve on the PCC. During 2001, the Council has committed itself to establishing a smaller Council and new disciplinary scheme, both of which will include increased numbers of lay members. Under the new disciplinary procedures, members of the GDC will participate in the initial screening of complaints and the referral of cases to formal hearings, but not in the disciplinary hearings themselves. The membership of the committees which conduct disciplinary hearings will be drawn from a separate panel of dentists, complementary professionals and lay people, who will be appointed to that panel by an independent appointments board in accordance with published criteria.

The GDC aims to complete its constitutional reforms by the end of 2002. Further details are available on the GDC web site: http://www.gdc-uk.org.

© Herbert Smith 2002

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