Malik v United Kingdom 23780/08  ECHR 438 (13 March 2012) – Read judgment
The European Court of Human Rights held that the suspension of a GP from the Primary Care Trust (PCT) Performers List did not violate his right to peaceful enjoyment of possessions under Article 1 Protocol 1 (A1P1) of the European Convention on Human Rights. The Court declined to decide whether there was a possession that could be interfered with in this case, but held that suspension did not affect Dr Malik.
Dr Malik ran a general practice from premises he owned in London. He was under a general medical services contract with his PCT so that he had to ensure patients on his list were provided with GP services (whether by himself or a salaried doctor); his premises was rented (for a notional amount) so that it could be used for NHS services. Dr Malik was also on the PCT’s performers list so that he personally could provide GP services.
In January 2005 the PCT conducted a monitoring visit to his practice. On 21 January Dr Malik was suspended from the performers list because of “the serious risk [he posed] to patients under [his] care”.
There was then a complex set of correspondence, hearings and decisions between the doctor and the PCT. The upshot of this was that Dr Malik remained suspended from the performers list for over eight months. This exceeded the 6 month maximum. The PCT also held hearings in Dr Malik’s absence (January 2005), then without Dr Malik being legally represented (June 2005).
Dr Malik applied for judicial review of the suspensions and on 17 March 2006, Mr Justice Collins found that the suspension was unlawful and that it had violated his right to peaceful enjoyment of possessions under A1P1. The judge found that inclusion on the list was akin to holding a license, which Strasbourg cases had previously found count as a possession.
The PCT and Secretary of State for Health appealed to the Court of Appeal against the A1P1 finding, and succeeded. A case summary of the appeal was done by 1COR’s Caroline Cross at the time. In particular, it was held that future income cannot constitute a possession unless it is the goodwill or clientele of a professional. As there was a statutory bar on selling the goodwill in a medical practice, this did not apply to the doctor and so no possession was interfered with.
The European Court
The Court’s judgment sets out the history above before considering the issue raised – whether Dr Malik’s A1P1 right was interfered with. As a preliminary point, the UK government argued that the claim was inadmissible because inclusion on the performers list is not a possession.
Is inclusion on the performers list a possession?
The Court reiterated a number of principles: that A1P1 protects current possessions, not an entitlement to future ones (Marckx v Belgium para 50); that a professional’s business clientele could amount to a possession (Van Marle); that revocation of a license or permit may be an interference with a possession (Fredin v Sweden); and that goodwill may be an element in the valuation of a professional license (paras 88-93).
However, the Court declined to decide whether there was a possession in this case. It indicated that inclusion on the performers list would not constitute a possession (para 96). However, it noted that the doctor built up a patient list and goodwill in his practice and that the practice drove his income – leaving open whether these were possessions.
Was there an infringement of AIP1?
The Court held that there was no infringement, for four reasons:
(1) Dr Malik continued to be paid during his suspension (this is required by the terms of the NHS contract);
(2) There was a fall in patient numbers during the litigation, but the doctor had failed to prove this was caused by the suspension;
(3) Even if the fall was caused by the suspension, Dr Malik did not show that this had affected his income; and
(4) Goodwill in the practice may be affected by a fall in patient numbers, but that doesn’t affect the doctor as it has no marketable value since he is prevented from selling it by legislation.
In summary, “the applicant failed to show that he had been affected by his suspension from the Performers List” so there was no violation of A1P1.
At first blush, it may seem that the Court has ducked the issue. The central disagreement between the first instance decision and the Court of Appeal was whether inclusion in the performers list was a possession. This issue was declared admissible by the European Court but left undecided because Dr Malik failed to show interference by the suspension. This may be the right decision. It is certainly hard to see what loss Dr Malik was claiming when his NHS contract guaranteed him 90% of his pay and he could do what he liked with his premises, as a locum doctor cared for his patients at a different site.
However, there may have been a missed opportunity to clarify a difficult area of law. The Court stated that it “does not consider” inclusion on the performers list to be a possession. However, other possibilities that could count as possessions, rejected by the Court of Appeal, were not decided upon. This leaves open whether someone in a similar position, if they demonstrate real loss, would be able to claim under A1P1.
In particular, the criticism in the Court of Appeal of the European cases in this area, which have found a middle ground between goodwill in a practice (which can be a possession), future income (which cannot be a possession) – a ‘legitimate expectation to future income’ which may be a possession – was not addressed. Perhaps this was deemed to be an unjust criticism, not needing to be addressed. But it seems as a result that these issues could well arise again, particularly under a changing regulatory environment in the NHS.
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