Regulation of Health and Social Care Professionals Consultation

egistrant or the regulator could seek reconsideration of a decision. However, this
might be viewed as unfair by the complainant and other interested parties who
might be opposed to any form of reconsideration. We welcome views on whether
the complainant and any other interested parties should have the right to prevent
or contribute to any decision to use this power.
Question 9-34: Should the regulators be given an express power to quash or
review the decision of a Fitness to Practise Panel where the regulator and the
relevant parties agree that the decision was unlawful? If so, should
complainants and other interested parties be able to prevent or contribute to
any decision to use this power?
APPEALS
9.129 A professional is entitled to appeal against any sanction affecting their his or her
registration. Appeals lie in most instances to the High Court in England and
Wales, the Court of Session in Scotland and the High Court in Northern
Ireland. 97 The basis of the appeal can include issues of fact and law. As set out
earlier in this Part, even if a body determining disputes over civil rights and
obligations does not comply with Article 6, there is no breach of the Article if the
proceedings before the body are subject to subsequent control by a judicial body
that does provide guarantees of Article 6. 98 In effect, the ability of a practitioner to
appeal to the higher courts ensures overall fairness in fitness to practise
processes in circumstances where individual elements do not comply with Article
6. As Lord Mackay has stated, “a right of appeal to a court of full jurisdiction does
not purge a breach of the Convention. It prevents such a breach from occurring in
the first place”. 99 This is in contrast to the investigation where the only remedy for
a defect in the process is through judicial review.
9.130 However, there are limitations to the exercise of the full jurisdiction appeal. There
is judicial consensus that respect for the decision of the Fitness to Practise Panel
is the starting point. 100 There are two main explanations for this. First, while
appeals are invariably on the basis of written submissions and evidence, the
Panel will have had the benefit of hearing and seeing the witnesses give
evidence in person. 101 Second, the Panel is viewed as the body best qualified to
assess the seriousness of the misconduct in the light of its experience and its
knowledge of the measures required to maintain the standards and reputation of
the profession. 102 However, if the court, despite paying such respect, is satisfied
97 The only exception is the General Social Care Council where there is a right to appeal to
the First-tier (Care Standards) Tribunal.
98 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].
99
Tehrani v UK Central Council for Nursing, Midwifery and Health Visiting [2001] ScotCS 19,
[2001] IRLR 208 at [55].
100 Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] 1 QB 462.
101 As above.
102 Marinovich v General Medical Council [2002] UKPC 36.
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