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Article 6 - Right to a fair trial

  • Last modified date:
    15 January 2007
This Article guarantees a right to a fair and public hearing before an independent and impartial tribunal within a reasonable time whenever a person's civil rights and obligations are being determined. In a health context, issues have arisen with regard to delay[16], independence of tribunals e.g. the Professional Conduct Committee (PCC) of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC)[17], appeals from administrative decisions[18], internal and professional disciplinary proceedings[19], interim care orders[20] and the issue of Alert Letters[21]. However, the right to state medical treatment is not a civil right falling within Article 6. So disputes about what treatment a patient should receive do not have to be adjudicated upon by an independent and impartial tribunal[22].

[16] Darnell v United Kingdom [1994] 18 EHRR 205; a challenge to a dismissal from a Regional Health Authority took some 9 years. While this was held to be a violation (which the UK conceded), the Commission found that delay before the dismissal did not count because there was, until then, no dispute but the Court did not think it necessary to rule on this point.

[17] In Tehrani the Court held that there was some basis for objective concern about the independence and impartiality of the PCC of the UKCC. The reasons included the fact that the same individuals sat from time to time on both the Preliminary Proceedings Committee ((PPC) which decides whether to refer cases to the PCC) and the PCC (although not in the same case), thus moving backwards and forwards between a prosecutorial and an adjudicative role; and the fact that the PCC's consideration might involve considering whether the practitioner had complied with a code made by the UKCC. However, since the PCC's decision was subject to a right of appeal to the Court of Session, the procedure as a whole complied with Article 6(1).

[18] In Stefan (Health Committee) and Wickramsinghe (Conduct Committee) v UK [1998] EHRLR 338 the Commission concluded that recourse to judicial review (as opposed to a full factual review) by the Privy Council was sufficient to meet the requirements of Article 6.

[19] The decision by a disciplinary tribunal to suspend or to disqualify a professional person is a determination of his civil rights and obligations within the meaning of Article 6(1) see Albert and le Compte v Belgium (1983) 5 EHRR 533. However, the decision of a disciplinary tribunal to admonish a professional person is not such a determination, and it has been suggested that Article 6 does not apply to the tribunal's proceedings, even if the tribunal has power to suspend or disqualify a person: see, e.g., X v United Kingdom (1983) 6 EHRR 583 (a decision of the Commission). In Tehrani v UKCC (2001) IRLR 208 the Scottish Court of Sessions, distinguished such cases on the basis that the person's civil rights and obligations had not been affected since that person had not been suspended or disqualified from practice. The Court said: 'What remains in dispute, however, is whether the disciplinary proceedings initiated against the petitioner could lead to a 'determination of her civil rights and obligations' within the meaning of Article 6(1). ... In my opinion, if the petitioner can establish that the disciplinary proceedings could result in a finding that would constitute a determination of her civil rights and obligations, the decision to initiate those disciplinary proceedings is open to challenge as being incompatible with the petitioner's Convention rights.'  This approach was approved by the Court of Appeal in R (on the application of Wayne Thompson) v the Law Society [2004] EWCA Civ 167, [2004] 2 All ER 113, [2004] 1 WLR 2522, at [83]. 

[20] In Re S and Re W (2002) UKHRR 652, a child care case, the Court of Appeal held that the making of full rather than interim care orders may violate Article 6 where there was no ongoing supervision by the Court. Although the House of Lords overturned this decision, it urged Parliament to reconsider the question of court control of local authorities. 

[21] Dr D v SofS for Health [2005] EWHC 2884 (Admin) concerned the decision of the Director of a Trust to reissue an Alert Letter (AL) (a letter by way of which NHS bodies are made aware of a doctor or other health professional whose performance or conduct could place patients or staff at serious risk) despite discontinuation of both a criminal prosecution and an investigation by the GMC's PCC. It was held that there was no general bar under Articles 6 and 8 upon the issue of an AL in respect of matters which might have been but were not the subject of guilty verdicts or adverse findings.  There was no breach, either before or after the issue of the AL, of Article 6(1), since there was no 'determination' of the Claimant's civil rights, and if there were, the process of representations and regular review and the availability of judicial review or proceedings under the Human Rights Act 1998 satisfied Article 6. There was no breach of the right to the presumption of innocence under Article 6(2), since there was no finding of guilt, or, to the extent that there was, it was legal and proportionate. 

[22] L v Sweden (applicn. no. 10801/84, 1988).

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