Regulatory Proceedings and the Right to a Determination Within a Reasonable Time

Regulatory proceedings including disciplinary proceedings

brought by public authorities are covered by the Human Rights Act. Where

such proceedings determine a civil right or a criminal charge, e.g.

professional disciplinary proceedings, they engage the right to a fair

hearing under Article 6 of the European Convention on Human Rights.

Article 6(1) includes the right to a determination ìwithin a reasonable

timeî. Undue delay can therefore lead to an infringement of Article 6. As

a separate matter, under the common law, undue delay can lead to

proceedings becoming an abuse of process.

Background

In Haikel v General Medical Council [2002] All ER (D) 99 (Jul),

the Privy Council had to consider the impact of Article 6 and the common

law in the context of GMC disciplinary proceedings. The GMC's Professional

Conduct Committee (ìPCCî) had found a registered general practitioner

guilty of serious professional misconduct following allegations that he

had conducted clinically inappropriate intimate examinations of a number

of female patients, and the PCC ordered his name to be erased from the

register.

An appeal was launched on various grounds including in relation to

delay. The first allegation by the GMC against the doctor concerned an

incident in autumn 1988 and the charges also included further incidents

over a four year period. The initial complaint to the GMC was made by the

practice nurse in December 1996 and was followed up by a letter of

complaint from the Health Authority to the GMC in July 1999. The Health

Authority's letter was then drawn to the doctor's attention by the GMC in

a letter dated 23 September 1999. Charges were served on 5 June 2001 and

the hearing began on 19 July 2001.

When does time begin to run?

In order to determine whether there had been a breach of the right to a

hearing within a reasonable time, the Privy Council first sought to

identify the relevant period of time over which the protection of Article

6(1) applied. Article 6(1) is concerned only with procedural delay and not

the passage of time between the conduct in question and the commencement

of proceedings. Therefore, in civil cases, time begins to run from the

initiation of proceedings (see Guincho v Portugal (1994) EHRR 223)

and continues throughout the entire proceedings. In a solicitors' case,

the Strasbourg Court has held that time runs from the date of the bringing

of charges (Brown v UK (38644/1997, judgment 24/11/1998). In that

case, the Solicitors...