The Court of Appeal has reversed the decision of the High Court in R (Malik) v Waltham Forest Primary Care Trust and others  EWHC 487, in which Mr Justice Collins held that a decision by a Primary Care Trust to suspend a doctor from the medical performers list, as part of professional disciplinary processes, was an unjustified interference with the doctor's rights under Article 1 of the First Protocol (the right to peaceful enjoyment of possessions) ("A1P1").
Summary of key points
- A1P1 is a right which is potentially relevant whenever a regulator or other public authority takes action having an effect on a business. Challenges based on this right are notoriously difficult because lawful interferences with the right to property can be justified in the public interest. The doctor's challenge succeeded at first instance but the Court had not had to consider the issue of justification because it was established that the interference had been unlawful.
- The Court of Appeal has now found that A1P1 was not engaged, on the basis that there was no "possession" falling within the scope of the right.
- The case confirms that A1P1 does not protect the ability to earn future income. However, to the extent that the assets of a business include goodwill and measures taken by a public authority (such as interference with professional practice) diminish its value, A1P1 may be engaged. When considering a claimed future monetary entitlement derived from an instrument such as a licence or permit, it is necessary to focus on whether there is a present economic value to the licensee in the sense of marketability. An individual's monetary loss, in the sense of loss of future livelihood, unless based on some loss of professional or business goodwill or other present legal entitlement, cannot constitute a possession attracting the protection of A1P1.
The claimant doctor, M, applied for judicial review of decisions by the appellant Trust to suspend him from the performers list, on which a GP must be included in order to practise within the NHS. The initial decision to suspend M took place after a routine assessment visit to his practice which the Trust considered revealed a serious risk to patients in his care. There were a number of hearings regarding the issue of M's suspension. M was suspended for more than 8 months whilst these hearings took place, despite regulations providing that the period of a doctor's suspension should not be greater than 6 months. Due to the excessive period of suspension, it was clear that, if it could be shown that there had been an interference with the A1P1 rights, such interference could not be justified as it had not been in accordance with the law.
The High Court Judgment
Mr Justice Collins at first instance concluded that M's inclusion on the performers list was a "possession" within the meaning of A1P1. His reasons were summarised by the Court of Appeal as follows:
- the European Court's judgment in Van Marle v The Netherlands (1986) showed that the right to practise a profession can be regarded as a "possession" for the purposes of A1P1;
- a licence to carry out an economic activity can be regarded as a "possession", following the Court of Appeal's judgment in Crompton v Department of Transport and the Judge's own ruling in R (Quark Fishing) v Secretary of State for Foreign and Commonwealth Affairs; and
- inclusion in a performers list is "akin to the position of a licence", giving it "an intrinsic value in that it enables the doctor to practise", and "suspension [from which] may well affect the economic value to him of his practice" in its possible effect on his patient numbers and hence his remuneration.
The Trust and the Secretary of State for Health appealed. The principal issue was whether the Trust's unlawful suspension of M amounted or gave rise to a deprivation of a "possession" within the scope of A1P1.
The Court of Appeal's Judgment
The starting point for the Court of Appeal's analysis (as set out in the leading judgment of Auld LJ) was to confirm the well established position that A1P1 protects a right to existing possessions, but not a future right to receive possessions: Marckx v Belgium (1979). Reference was also made to The Countryside Alliance v Attorney General in which the Court of Appeal held that a person's livelihood in the sense of a future right to income, as distinct from a vested right to it or some separate element of goodwill, cannot amount to a possession within A1P1. Auld LJ observed that M's case could not involve an interference with goodwill, given the existence of a statutory prohibition which prevents doctors from selling any goodwill or patient lists to third parties.
Auld LJ then turned to the primary argument relied upon by Mr Justice Collins, namely that inclusion on the performers list was "akin to the possession of a licence". As a preliminary point, he acknowledged that the reach of human rights goes beyond economic protection and that in the case of tangible objects, such as land or goods, and certain intangible assets, an individual's right to enjoyment of possessions may not be, or not just be, of an economic nature. Something may have value to a person meriting the protection of A1P1 even though it may have no value in the market. Auld LJ expressed the view, however, that:
"Where, however, the possessory right claimed is, as here, to some intangible entitlement conferred by a licence…it seems to me that some additional factor is necessary to render it a "possessory" entitlement as distinct from the broader concept of a legal right…In many or most cases, such identity is likely to depend on the existence of some present economic value of the entitlement to the individual claiming it…"
Auld LJ found support for this view in a number of domestic and Strasbourg authorities, including Nicholds & Ors v Security Industry Authority & SSHD, a case involving the introduction of licensing criteria for door supervisors, the effect of which was to prevent the claimants from working as such because of previous convictions. In that case, the Court made a distinction between licences or permissions which are "assets" – namely which have a monetary value and can be marketed for consideration; and other licences which, whilst having a value to the holder are not marketable and do not represent a distinct asset having monetary value. Having also noted Mr Justice Collins's reliance on the judgments in Crompton and Quark, the unanimous decision of the members of the Court of Appeal was nonetheless that the issue had been put beyond doubt by the ruling of the Court of Appeal in the Countryside Alliance case. It was held that an individual's monetary loss, in the sense of loss of future livelihood, unless based on loss of some professional or business goodwill or other present legal entitlement, cannot constitute a possession attracting the protection of A1P1. For this reason, Mr Justice Collins had wrongly concluded that the personal right of M to practise in the NHS based on his inclusion in the performers list was a "possession" within A1P1.
The position was summarised by Lord Justice Rix as follows:
"In the present case, inclusion on the performers list is not a licence in itself, but a condition precedent to a doctor being able to perform services himself in the NHS…It seems to me that inclusion on the performers list is a matter of regulation…rather than a possession or property right…one cannot readily speak of the inclusion on the list as an economic interest. It is not an asset. It has no monetary value."
The Court went on to find, although this was not necessary in light of its conclusion on the first issue, that even if A1P1 had been engaged, on the facts of the case there had been no interference with that right.
Comment This case demonstrates the continued reluctance by the appellate Courts to recognise any extension of the scope of A1P1, particularly in light of the decision of the Court of Appeal in Countryside Alliance.
In the context of professional and regulatory disciplinary proceedings, it is interesting to note the Court's clear distinction between "tangible" and "intangible" assets, and its confirmation that a person's livelihood, in the sense of a future right to income, will not necessarily qualify as a "possession" for the purposes of A1P1. In many or most cases, a claimant will need to rely on the existence of some "present economic value", or the loss of some professional or business goodwill that is otherwise tangible; as "an expectation of future income" will not be enough to challenge such a process on Convention grounds.