"The Tribunal constituted under and in terms of section 29(1) of the National Health Service (Scotland) Act 1978 (as amended) ("the 1978 Act") being of the opinion that the Respondent, Mr Brian Kelly, has by acts or omissions caused or risked causing detriment to a health scheme by securing or trying to secure for himself or B&C Kelly Opticians a financial or other benefit to which he knew that he and/or they were not entitled FIND accordingly that the condition stipulated in sub-section 7 of Section 29 of the 1978 Act has been met and therefore in terms of sub-sections 2(a) and 2(b) of Section 29B of the 1978 Act DISQUALIFY the said Brian Kelly from inclusion in (1) the Shetland Health Board's list of medical practitioners and ophthalmic opticians undertaking to provide and of persons approved to assist in providing general ophthalmic services and (2) all lists within sub-paragraph (d) of sub-section (8) of Section 29 of the 1978 Act."

"S 29...

(2) If the Tribunal receive from a Health Board representations that a person -

(a) who has applied to be included; or

(b) who is included

in any list meets any of the conditions for disqualification, the Tribunal shall inquire into the case.

...

(6) The first condition for disqualification is that the inclusion or continued inclusion of the person concerned on the list would be prejudicial to the efficiency of the services which those included in the list -

(a) in relation to a list referred to in sub-section (8)(a), perform:-

(b) in relation to a list referred to in sub-section (8)(d), undertake to provide or are approved to assist in providing.

(7) The second condition for disqualification is that the person concerned-

(a) has (whether on his own or together with another) by an act or

omission caused, or risked causing, detriment to any health scheme by securing or trying to secure for himself or another any financial or other benefit; and

(b) knew that he or (as the case may be) the other was not entitled

to the benefit.

(7A) The third condition for disqualification is that the person considered is unsuitable (by virtue or professional or personal conduct) to be included or to continue to be included in the list.

(8) A 'list' means-

(a) a list of health care professionals of a prescribed description performing primary medical services;

(d) a list of medical practitioners and ophthalmic opticians undertaking to provide, and of persons who are approved to assist in providing, general ophthalmic services; or

prepared (in each case) under or by virtue of this Part or Part 1 of this Act

...

(10) Detriment to a health scheme includes detriment to any patient of, or, person working in, that scheme or any person liable to pay charges for services provided under that Scheme.

(11) Cases in which representations are made that the first condition for disqualification is met are referred to below as efficiency cases; cases in which representations are made that the second condition for disqualification is met are referred to below as fraud cases and cases in which representations are made that the third condition for disqualification is met are referred to below as unsuitability cases".

(1) Sub-section (2) applies where the Tribunal are of the opinion-

(a) on inquiring into an efficiency case, that the person meets the first condition for disqualification;

(b) on inquiring into a fraud case, that the person meets the second condition for disqualification;

(c) on inquiring into a unsuitability case, that the person meets the third condition for disqualification.

(2) The Tribunal shall disqualify him for inclusion in-

(a) the list to which the case relates;

(b) all lists within the same paragraph of subsection (8) of section 29 as that list;

(4) The Tribunal shall not make a disqualification under this section if they are of the opinion that it would be unjust to do so.

(5) The disqualification under this section shall have effect when the case is finally concluded.

(6) If a person is disqualified for inclusion in any list prepared by a Health Board, the Board must not enter him on the list and (if he is already included on the list) must remove him from the list".

"(1) The functions of making disqualifications under section 29B include making a conditional disqualification, that is, a disqualification which is to come into effect only if the Tribunal determine (on a review under section 30) that the person subject to the inquiry has failed to comply with any conditions imposed by them.

(2) Conditions may be imposed by virtue of subsection (1) with a view to-

(a) removing any prejudice to the efficiency of the services in question;

(b) preventing any acts or omissions within section 29(7)(a);

(c) ensuring that the person-

(i) performs, undertakes to provide or assist in providing only services specified (or of a description specified) in the condition;

(ii) undertakes an activity (or course of activity) of a personal or professional nature, or refrains from conduct of a personal or professional nature, so specified (or of a description so specified), (as the case may be)

(iii) Conditions so imposed shall have effect when proceedings of the case are finally concluded.

(4) Section 29B(4) applies to a conditional disqualification as it applies to a disqualification.

(5) The Tribunal may by directions -

(a) vary the terms of service of the person subject to the inquiry (including the terms imposed by regulations under this Part);

(aa) vary any requirements to which the person subject to the inquiry is subject under or by virtue of Section 17F, 17P or 17X of this Part.

(b) confer functions on any Health Board, for the purpose of or in connection with the imposition of any conditions by virture of this section... ".

"Notwithstanding that, there is no mention anywhere of what, if anything, the Tribunal made of it. Instead, to use the language of the well known test, the informed reader and the Court is (sic) left in real and substantial doubt as to what the Tribunal's reasons were for rejecting the submission which was made. In this respect the Tribunal can, in our opinion, be said to have erred in law".

It was for that reason, and on that basis, that the Extra Division pronounced the interlocutor in the terms it did, as set out above.

"Statement By The Tribunal

"That this Tribunal should consider a conditional disqualification on the basis that Mr Kelly undertook to apply for inclusion in a list of those approved to assist in the provision of services by those ophthalmic medical practitioners and opticians who have undertaken to provide general ophthalmic services under arrangements with Greater Glasgow and Clyde Health Board in terms of Regulation 6 of the National Health Service General Ophthalmic Services (Scotland) Regulations 2006/135 and that Mr Kelly would be prepared to restrict himself to working for one Health Board only viz Greater Glasgow and Clyde; this would permit Mr Kelly to carry out work to National Health Service patients under the supervision of a principal, as a locum or in some such similar capacity, and of the Board"

At paragraph 7 of the Tribunal's decision, the submissions made on behalf of the respondents are noted. At paragraph 7.1 it is noted as follows

"The decision to make an immediate disqualification was appropriate and just. The nature of Mr Kelly's deceit, the length of the deceit and the mechanism by which it was ultimately discovered (on a detailed examination of Mr Kelly's records) were cumulatively sufficient to justify an immediate disqualification".

At paragraphs 7.2 to 7.4 submissions regarding the conduct of the appellant particularly during the Tribunal proceedings are set out. At paragraph 7.5 the Tribunal records that it was submitted, on behalf of the respondents, that

'The nature of Mr Kelly's evidence in the course of the Hearing was such as to draw the reasonable inference that any condition that might be applied by the Tribunal would not be adhered to'.

"This Tribunal is cognisant of the gravity of the effect an immediate disqualification will have on Mr Kelly. It will, in essence, deprive him of his livelihood. We are fully aware of the consequences Mr Kelly's behaviour has had on him as we acknowledged in paragraph 94 of our original Statement. Our considered decision is that conditional disqualification is not appropriate in the circumstances of this case for the following reasons"

At paragraph 9 the Tribunal refers to the content of the evidence given by the appellant to the Tribunal at the previous Hearing and his manner of giving it. They note "We felt that throughout Mr Kelly's evidence was hesitant, evasive, contradictory and unreliable" At paragraph 10 the Tribunal notes a submission made by counsel for the respondents to the effect that any condition to be imposed in light of section 29(7)(a) and (b), would require to have "considered whether the act or omission complained of is likely to be prevented by such a conditional disqualification"(sic). Counsel apparently went on, as recorded, to submit that

"the act or omission in this case was either a positive act on Mr Kelly's part in defrauding the Board in the knowledge of the Regulations or Mr Kelly's failure to read and understand and apply the Regulations that he was working under on (ie an omission). Whether or not he was intending to work under supervision or as a locum was not going to address either of these problems".

The Tribunal do not, in their decision, say what they made of this observation, and, in particular, whether they accepted it or rejected it. The Tribunal go on to state:-

"We were concerned as to what the incentive to him might be were Mr Kelly to be restricted in terms of a conditional disqualification and we were satisfied that a locum working in a particular area would be more valued if more services were provided as the income to the business flows from the voucher scheme. There were difficulties in policing it".

We pause to observe at this stage that no specification is given as to the difficulties which the Tribunal envisaged would arise if a conditional disqualification was imposed. Far less is there any reference to any evidential basis for holding that view. The Tribunal goes on to state that:

"Mr Khurana made the point that anyone who has committed a fraud as a practitioner could merely just work as a locum and potentially earn as much. In addition there was no guarantee that Mr Kelly would restrict himself to merely one Health Board standing his past dishonesty. We feel that the conditions suggested on Mr Kelly's behalf do not address the problem".

Once again it is not immediately apparent to the Court as to what 'problem' the Tribunal is referring to at this point in their decision. At paragraph 11 the Tribunal revisit the nature of the conduct involved on the part of the appellant and state "we are of the firm view that where there is dishonesty and intention that places an offender within the highest level of culpability". They also state that the appellant had placed in him a great deal of trust by the respondent which he had breached.

At paragraph 13 the Tribunal observe:-

"We were not apprised of any mitigating factors of any moment other than the fact that the sum of £12,400 had been repaid and which appears to have been an arrangement come to between Mr Kelly's representatives and the Procurator Fiscal; as a result the Procurator Fiscal deserted the charges against Mr Kelly pro loco et tempore but reserving the Board's right to seek recovery of the unpaid balance of approximately £16,600 and which has not been recovered".

The Tribunal's conclusion at paragraph 14 is recorded as follows:

"In all the circumstances we consider that the Board's submissions were well founded and that a conditional disqualification is entirely inappropriate and that immediate disqualification is not excessive, unjust or wrong in principle"

"The Tribunal failed to give proper consideration to conditions which could have been imposed so as to protect the position of a Health Board. It incorrectly held that any condition could not be policed. Such an assertion was not justified on the evidence. A condition could have been imposed such that the respondent undertook to restrict himself to assisting in the provision of services by those ophthalmic services (sic) under arrangements with [a Health Board] in terms of regulation 6 of the National Health Service (General Ophthalmic Services) (Scotland) Regulations SSI 2006/135. Having regard to the terms and operation of the regulations on the 1978 Act as amended there was no reason to suppose that such a condition could not have been "policed".

2. The Tribunal was not entitled "to be satisfied that a locum working in a particular area would be more valued if more services were being provided as the income to the business flows from the voucher scheme". There was no evidence that would be the case. On the contrary an optometrist registered under Part 1 of paragraph 6 of the Regulations would have every incentive to ensure that the Regulations were complied with.

3. The proposition "that anyone who has committed a fraud as a practitioner could merely just work as a locum and potentially earn as much" is irrelevant and in any event incorrect.

4. The Tribunal erred in holding that "there was no guarantee that Mr Kelly would restrict himself to merely one Health Board standing his past dishonesty". Any employer could check whether he was registered with any given Health Board. Unless he was so registered no payment would be received for any work carried out.

5. The Tribunal's statement at paragraph 11 in relation to the level of culpability is inconsistent with its statement in its original decision, in paragraph 94, that the amount obtained "was not one on a grand scale". Further it has placed excessive weight upon the conduct of his defence as opposed to the character of the conduct complained about".

Decision

Having regard to those considerations we are left with a significant question as to what relevant reasons, if any, there were in the mind of the Tribunal in reaching the decision it did. We are particularly concerned about the apparent dismissal of the possibility of a conditional disqualification by the brief remark at paragraph 10 "There were difficulties in policing it". It is not clear to us whether, at that point, the Tribunal is simply recording a submission made by counsel for the respondent or stating their own thoughts on the matter. If it was intended to be a reason adopted by the Tribunal for rejecting outright the possibility of a conditional disqualification, then we consider it is inadequate, since neither the informed reader nor the Court is left with any explanation as to why, and in what respects, "policing" might be difficult and, secondly, why such difficulties could not be met by appropriate further conditions. The language of the relevant statutory provisions, in our judgement, clearly gives the Tribunal wide powers as to conditions that might be imposed. It is, in our view, all the more important that a reason of that sort, if it is to be one of the reasons for the Tribunal's decision is evidence based, and that some reference is made to the evidence which supports it. A matter of such significance should not, in our view, be left simply on the basis of an assertion. If the legislation contemplates, as it does, conditional disqualification as one of the means of disposal of such a case, it is for the Tribunal, when that has been proposed to it as a suitable means of disposal, to address carefully the factual and legal reasons which point against it, if that is the conclusion that they choose to arrive at.