SS, R (on the application of) v Knowsley NHS Primary Care Trust

A statutory appeal or later rehearing may cure procedural unfairness, but it does not remove the court’s jurisdiction to prevent an unfair first-stage hearing. Fairness under the National Health Service Performers Lists Regulations 2004 is fact-sensitive. There is no general right to legal representation or cross-examination, but neither may be excluded by a rigid policy. The decision-maker must consider whether the doctor can fairly present the case without representation and whether oral evidence or questioning is needed to challenge important disputed facts. A primary care trust may establish a procedural framework, provided it remains open to necessary departures. The claimant’s statutory appeal is relevant to the content of fairness, but does not make prospective judicial review unavailable.

Two judicial review claims concerned proposed hearings by primary care trusts under regulation 10 of the National Health Service Performers Lists Regulations 2004. Dr S faced allegations of indecently assaulting four patients and other criticisms of his practice. Dr Ghosh faced numerous clinical, management and sexual-misconduct allegations, including matters considered by an employment tribunal.

Each trust’s correspondence indicated that legal representation would not be permitted. Knowsley also stated that witnesses could be questioned only by the panel, while Northumberland indicated that only identified investigators would attend. The central issues were whether those communications constituted procedural decisions, whether judicial review was premature because regulation 15 provided a redetermination appeal, and what fairness required at the proposed hearings.

1. Decisions amenable to review. The trusts’ letters communicated decisions. In Dr S’s case, the decision excluded legal representation and cross-examination. In Dr Ghosh’s case, it excluded legal representation.
2. Prospective unfairness. A later statutory appeal may be relevant when deciding what fairness requires at the first stage, but it does not deprive the court of jurisdiction to prevent an unfair procedure. Prevention and cure are distinct. The existence of a right of appeal therefore did not make the claims premature or otherwise unreviewable. The reasoning in R (Hammond) v Secretary of State for the Home Department [2006] 1 All ER 219 supported that conclusion. Preiss v General Dental Council [2001] UKPC 36, [2001] 1 WLR 1926 did not establish that an appeal could always justify an unfair first hearing.
3. Nature of the process. Removal from a performers list is an important statutory public-protection decision, not merely an employment decision or a temporary provisional step. The panel is a committee of individuals acting as the trust’s delegates. The trust may set a framework, but the panel must exercise the delegated function fairly.
4. Witnesses and questioning. The Department of Health advice that witnesses should attend only where their evidence would add materially to the decision-making process was sound general guidance. However, a rule preventing the doctor from questioning an attending witness had no foundation in the Regulations and could cause unfairness. Where an important disputed primary fact turns on credibility, fairness will ordinarily require the panel to hear the witness if willing and to permit effective questioning. The panel may control questioning and may concentrate on witnesses whose evidence is central.
5. Legal representation. The Regulations confer no general right to legal representation, but the Department of Health advice went too far if understood as prohibiting it. The question is whether the doctor can reasonably represent himself. Complexity, the volume and diversity of allegations, and the need to cross-examine witnesses may make representation necessary. In Dr Ghosh’s case, the combined complexity of the allegations and evidence made it unrealistic to expect him to do himself justice without legal representation. In Dr S’s case, cross-examination of the complainants would be a powerful reason for representation.
6. Outcome. The decisions were quashed. The trusts were to reconsider them in the light of the judgment. Costs were directed as agreed. Permission to appeal was granted because the issues were important and another court could reasonably take a different approach.

High Court (Administrative Court): The claims for judicial review were allowed. The relevant decisions of the two primary care trusts were quashed, and permission to appeal was granted. No subsequent appellate decision is stated in the judgment.