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Kelly v Shetland Health Board [2012] CSIH 101 - 28th December 2012


Third appeal against a decision of a National Health Service Tribunal to disqualify the appellant from inclusion in the respondents' list of medical practitioners and ophthalmic opticians, on the ground that the Tribunal were wrong to disqualify him unconditionally. The appellant submitted, inter alia, that i) the Tribunal ought to have recused itself, ii) the conduct of the chairman of the Tribunal was unfair and iii) the Tribunal failed to give adequate reasons.

Appeal refused. Held; i) The appropriate test for determining whether the Tribunal ought to have declined jurisdiction is whether the hypothetical fair minded and informed observer of its proceedings would have considered that there was a real possibility that the Tribunal would be biased towards the appellant when it came to the issue of reconsidering the disposal (Helow v Secretary of State for the Home Department [2008] UKHL 62). In the present case, the Tribunal had simply been asked to expand upon its reasoning in relation to disposal. There was no basis for the informed and fair minded observer to expect that exercise to be carried out by other than the original Tribunal; ii) If a chairman of a tribunal considers that a witness (whether a party or otherwise) is failing to answer a question and is, in effect, prevaricating in that respect, they are entitled to attempt to put a stop to that conduct and to advise the witness of their view. If the view is not justified, it may be a prima facie ground of appeal in the event of an adverse finding of credibility or reliability. In the present case, the chairman's intervention was not prejudicial to the appellant nor did it render the proceedings unfair; iii) The test for adequate reasons is whether the informed reader is left in any real and substantial doubt as to what the reasons for the decision are (Wordie Property Co v Secretary of State for Scotland 1984 SLT 345). Whatever the deficiencies in the provision of reasons at the earlier stages of the proceedings, there was now no doubt that the appellant had been given more than adequate reasons for the Tribunal's most recent disposal.