Regulation of Health and Social Care Professionals Consultation

outcome of the particular procedure is capable of affecting a practitioner’s ability
to continue working in their chosen profession. 3 Accordingly, the applicability of
Article 6 varies throughout the different stages of the fitness to practise process; it
is not engaged at the early stages involving screening and investigation, but will
be engaged at the adjudication stage. 4 This would include interim order
proceedings relating to an interim suspension. 5
9.5 Several court cases have been brought alleging non compliance with Article 6 on
the basis that adjudication is undertaken by the regulators and not an
independent body. The courts have rejected such claims because the legislation
provides for subsequent control of the fitness to practise decision by the High
Court in England and Wales, the Court of Session in Scotland and the High Court
in Northern Ireland on both issues of fact and law. In effect, the decision of the
regulator is subject to a court of full jurisdiction which therefore satisfies the
requirements of Article 6. 6 Moreover, in Sadler v General Medical Council the
court stated that the General Medical Council’s fitness to practise adjudication
process at that time was in itself Article 6 compliant without even having to
consider whether the process was subject to review by a court of full jurisdiction. 7
Provisional view
9.6 It is vital that the fitness to practise process secures the requirements of
procedural fairness guaranteed by Article 6. These include but are not limited to
securing the right to a hearing within a reasonable time, access to legal
representation, an opportunity to attend the hearing, adequate time for the
preparation of the individual’s defence, a public hearing and a public
pronouncement of the judgment. Arguably, the legal frameworks for fitness to
practise cases adopted by the regulators have improved significantly in recent
years and are now Article 6 compliant even without relying on the availability of
review by a court of full jurisdiction.
9.7 Nevertheless the role of the higher courts as courts of full jurisdiction over the
regulators’ decisions means that Fitness to Practise Panels procedures in most
cases will not fail the Article 6 test. That said, we think that it is best to ensure
that all proceedings are Article 6 compliant without taking into account the right to
appeal to a court of full jurisdiction.
9.8 One way of achieving this would be to attempt to specify in statute law which
measures and procedures must be adopted by each regulator to ensure Article 6
compliance. However, we think this is not possible given the sheer range of
requirements arising potentially under Article 6, each of which will vary in the light
3 R (Wright) v Secretary of State for Health [2009] UKHL 3, [2009] 1 AC 739. For a summary
of recent authorities see Re B [2011] EWHC 2362 (Admin) at [38] to [99].
4 David v General Medical Council [2004] EWHC 2977 at [35].
5 Madan v General Medical Council [2001] EWHC Admin 577, [2001] Lloyd’s Rep Med 539.
6 See, for example, Tehrani v UK Central Council for Nursing, Midwifery and Health Visiting
[2001] ScotCS 19, [2001] IRLR 208 at [52] and Ghosh v General Medical Council (2001) 1
WLR 1915 at [31].
7 Sadler v General Medical Council [2003] UKPC 59, [2003] 1 WLR 2259 at [80].
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