Sacked nurse unable to challenge decision by judicial review, judge rules

Lord Burns refused a petition by Susan Dryburgh, who was dismissed by NHS Fife for alleged behaviour with racist overtones, after ruling that the decisions were taken in the context of an “employment dispute”, having been delegated to an “internal body”, which meant the “tripartite relationship” necessary for judicial review proceedings did not exist.

The court heard that the petitioner, a qualified orthodontist, had worked at Victoria Hospital in Kirkcaldy for 20 years when the allegations were made against her.

Her solicitors had been told that they would not be able to represent their client at the disciplinary hearing as she was not contractually entitled to legal representation and the petitioner, who was also unable to attend due to ill health, was summarily dismissed after the allegations were found to have been established.

She exercised her right to appeal against her dismissal but was subsequently informed by the respondents that she would not be permitted to have legal representation at the appeal hearing.

Ms Dryburgh lodged the petition for judicial review of the decisions, but the respondents raised a preliminary issue on competency, arguing that the decisions were “not susceptible” to judicial review.

On behalf of the petitioner it was submitted that the necessary tripartite relationship existed between the parties, which rendered the decision of the respondents “amenable to the supervisory jurisdiction of the court”.

The respondents were a statutory body exercising statutory powers which delegated responsibility for dealing with disciplinary matters concerning the petitioner to a specific committee within the organisation.

It had exercised a discretion whether or not to allow legal representation at the disciplinary hearing and at appeal, which was not concerned with or related to the contractual rights or obligations between the parties.

It was also argued that the decisions to refuse legal representation breached her right to a fair hearing under article 6 of the European Convention on Human Rights, 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 because the findings of the disciplinary panel would influence proceedings before the practice committee of the General Dental Council.

However, the respondents argued that judicial review in this case was “incompetent”, as this was a dispute about the party’s rights and obligations within a contract between an employer and an employee.

If article 6 was engaged a breach would have a remedy against the respondents as a public authority under section 8 of the Human Rights Act 1998.

It was submitted that the only relationship between the parties was within the contract of employment – a “bilateral relationship” with no question of delegation of the decision-making process, meaning there was no tripartite relationship.

Refusing the petition, the judge said he preferred the arguments of NHS Fife, the interested party, the GDC.

In a written opinion, Lord Burns said: “On the issue of whether the impugned decisions are amenable to judicial review, I conclude that they are not. No tripartite relationship exists here. The decisions were taken in the context of an employment dispute where the respondents delegated the inquiry as to alleged misconduct to an internal body…

“This is not a case where the decision was ‘entrusted to a body other than the employer’. The matter was dealt with internally. While the decision not to allow the petitioner 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.”

He also held that the petitioner’s legal right to continue to exercise as a dental nurse had not been “determined” by the decision of the respondents to dismiss her.

Nor did he consider, standing the statutory duties upon the practice committee of the GDC, that the findings of the respondents’ disciplinary panel would have a “decisive influence” on the decision-making process of the GDC, or that it would cause any “irreversible prejudice” in those proceedings.

“I cannot assume that the GDC practice committee would ignore their statutory duties in the light of knowledge that the petitioner had been summarily dismissed for gross misconduct by the respondents,” Lord Burns said.

“Accordingly,” the judge 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.”