DR EMMANUEL DIBUA NWABUEZE v GENERAL MEDICAL COUNCIL (2000) PC (Lord Hope, Sir Patrick Russell, Sir Andrew Leggatt) 6/4/2000

Rosalind English

April 2000

ABSTRACT

Advice given by the legal assessor to the Committee should be disclosed to the parties in order to afford the defendant the equality of arms required by Article 6

SUMMARY

The claimant was suspended from the medical register following the decision by the PCC to uphold several allegations of serious professional misconduct against him. During the course of the committee proceedings, which were held in camera, the Legal Assessor gave directions to the Committee on the importance they should attach to alibi evidence produced on behalf of the appellant. This direction was not disclosed to the parties to the proceedings. Dr Nwabueze appealed, claiming, amongst other things, that this denial of his opportunity to comment on and criticise an important part of the deliberations meant that he had been deprived a fair trial, contrary to Article 6.

Held:

It is incumbent on the chairman of the PCC to consider, in each case, whether the legal asessor's advice which he had tendered to the committee should be disclosed to the parties. This was not a mere formality, but a consideration of fairness, since they should be given the opportunity to comment on this advice and if necessary criticise it. The requirements of the common law, that there was no obligation to consider disclosure, were not "at one" with those of Article 6 of the Convention, by which the PCC "should soon be bound".

COMMENT (April 2000)

The Human Rights point is only one of the points considered amongst others by the Privy Council; they decided in general that there was no evidence to support the suggestion of bias in the tribunal. However the court directed that the erasure of the appellant's name from the medical register should be quashed.

The role of Article 6 in public health employment is a confusing area in Strasbourg case law, a recent example of which suggests that disputes concerning the employment of doctors working under national health schemes fell outside the scope of Article 6, which covers private disputes only: see Argento v Italy (1999) 28 EHRR 719. On the other hand, there is also a line of case law concerning doctors where Article 6 and all its guarantees have been applied; even if the proceedings are classed in domestic law as civil, the Strasbourg Court has said that some of the guarantees available to criminal defendants should also apply, such as the presumption of innocence (see Albert and le Compte v Belgium (1983) 5 EHRR 533)

The whole question of whether GMC proceedings are generally compatible with Article 6 must at some stage be addressed. Nwabueze is only the tip of the iceberg. For example, the one claim on which he succeeded – that he was deprived of the opportunity to comment on the legal assessor's advice to the committee, concerns the very important right implied by Article 6 which is routinely infringed by medical disciplinary proceedings, the requirement of equality of arms. Equality of arms means that the defence and prosecution must have equal access to all evidence and observations relied upon by either side. This is not an absolute right, but any limitations must be according to law and necessary in a democratic society.

Rosalind English, 1 Crown Office Row

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