Judicial review not open to disciplined nurse, judge rules
An NHS employer's refusal to allow a dental health nurse legal representation in disciplinary proceedings was not open to a petition for judicial review, a Court of Session judge has ruled.
Refusing a petition by Susan Dryburgh, who was dismissed by NHS Fife for alleged behaviour with racist overtones, Lord Burns in the Outer House held that the decisions challenged were taken in the context of an employment dispute where the inquiry was delegated to an internal body, which did not give rise to the tripartite relationship necessary for judicial review proceedings.
It had been argued for Ms Dryburgh that the respondents were exercising statutory powers which delegated disciplinary matters to a specific committee within their organisation, and the committee's exercise of discretion was not concerned with or related to the contractual rights or obligations between the parties. Judicial review was open in situations even in the absence of a tripartite relationship where there had been an excess of power in the exercise of an administrative function by a public authority.
Further, article 6 of the European Convention on Human Rights was engaged, as the outcome of the disciplinary proceedings could, in practical terms, deprive Ms Dryburgh of the right to practise her profession as a dental nurse; and the findings of the disciplinary panel would influence proceedings before the practice committee of the General Dental Council.
Lord Burns said the case law established a distinction between decisions taken by an employer and those taken by a body other than the employer. Here the matter had been dealt with internally, and while the decision not to allow legal representation was an administrative one, "the dispute between the parties is essentially a contractual one in which the petitioner is seeking to defend her right to work in the face of allegations of misconduct. If there is unfairness in the manner in which the proceedings are conducted which can be said to breach her article 6 rights, the petitioner can advance a claim under what Lord Clyde [in Blair v Lochaber District Council (1995)] called 'the ordinary law'".
Nor did the decision determine Ms Dryburgh's legal right to continue as a dental nurse, even if it made it more difficult for her to obtain employment. This was not a case of a decision resulting in a legal prohibition. Further, Lord Burns was not satisfied that the decision "would have a decisive influence on the decision-making process of the GDC", or that it would cause "any irreversible prejudice in those proceedings".
"Accordingly," he concluded, "I do not consider that the petitioner has made out a case for judicial review of the decisions of the respondents to refuse to allow the petitioner to have legal representation at the disciplinary hearing or the appeal hearing" (which had still to take place).