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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Martin v An Order Of The Tribunal Under Section 29(1) Of The National Health Service [2009] ScotCS CSIH_10 (11 February 2009)
URL: http://www.bailii.org/scot/cases/ScotCS/2009/2009CSIH10.html
Cite as: [2009] CSIH 10, 2009 GWD 6-106, [2009] ScotCS CSIH_10, 2009 SLT 191

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Osborne

Lord Hardie

[2009] CSIH 10

XA2/07

OPINION OF THE COURT

delivered by LORD HARDIE

in the Appeal

under the Tribunals and Inquiries Act 1992, Section 11(7)

by

MISS MARJORIE MARTIN

Appellant;

against

An order of the Tribunal constituted under section 29(1) of the National Health Service (Scotland) Act 1978 dated and intimated to the Appellant on 22 November 2006

_______

Party Appellant

For the respondent: (Greater Glasgow Primary Care NHS Trust): Khurana; Ranald F Macdonald, W.S.

11 February 2009

Introduction


[1] This is an appeal under section 11(7) of the Tribunals and Inquiries Act 1992 ("the 1992 Act") against an order made by the Tribunal constituted under section 29(1) of the National Health Service (Scotland) Act 1978 ("the 1978 Act") dated and intimated to the appellant on 22 November 2006 disqualifying the appellant from inclusion in (1) the Greater Glasgow 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 section 29(8)(d) of the 1978 Act.


[2]
The decision of the Tribunal followed upon a hearing into representations by Greater Glasgow Primary Care NHS Trust ("the respondents") (a) that the appellant's continued inclusion in the ophthalmic list of the respondents would be prejudicial to the efficiency of services which those included in the list undertake to provide or are approved to assist in providing and (b) that the appellant had (whether on her own or together with another) by an act or omission caused, or risked causing, detriment to a health scheme by securing or trying to secure for herself or another a financial or other benefit and knew that she or (as the case may be) the other was not entitled to the benefit. The functions of the respondents are now carried out by the Greater Glasgow Health Board. The nature of the alleged fraud by the appellant involved a variety of different practices resulting in false and inaccurate claims for payment. These included claims for prisms not provided; glasses not provided; small frames not provided; glasses, tints and prisms provided when not clinically necessary; and replacement glasses within three months of issuing an original pair. In addition it was alleged that the appellant recalled patients on a more frequent basis than was necessary. The representations further alleged that analysis of the appellant's records disclosed that she had in place systems to obtain payment inappropriately from the NHS and to maximise her income. She recalled NHS patients sooner than private patients. A drawer in the appellant's premises was labelled "Hold Backs" and contained signed forms which were being held back from the sight test date. Duplicate vouchers were also found. The appellant allegedly operated a system whereby some patients would sign two sets of forms prior to being sight tested. One set of forms would be submitted to claim that glasses had been issued while the other would be retained to be submitted six months later when no additional service had been provided to the patient. In the case of children the appellant allegedly retained repair and replacement vouchers to be submitted after three months, but there was no evidence that the children had been provided with a replacement pair of glasses.

Grounds of appeal


[3]
In support of the appeal the appellant lodged the following grounds:

"(1) The hearing before the Tribunal did not afford the Appellant a fair hearing before an independent tribunal established by law and is incompatible with the Appellant's Convention Rights contrary to the Human Rights Act 1998 section 6 and Schedule 1, Part I, Article 6(1) et separatim did not per se constitute sufficient guarantee of the Appellant's Convention Rights in respect that the complainer had full legal advice and representation by counsel before the Tribunal whereas the Appellant in the absence of Legal Aid which is not available for hearings of this nature and to her prejudice did not;

(2) The Order of the Tribunal is incompatible with the Appellant's Convention Rights contrary to the Human Rights Act 1998, section 6 and Schedule 1, Part II, 1st Protocol, Article 1."

The appellant's submissions

[4] The appellant submitted that as she appeared at the Tribunal on her own without legal representation she had been unable to present her case effectively due to the lack of representation. The appellant stated that she had not given evidence before the Tribunal because she was very stressed at the end of eight days of evidence, having been through twelve weeks of a criminal trial which related to similar but different allegations of fraud. She had been unclear why the schedule presented by the respondents was different from the schedule in the criminal trial and she was unsure if another criminal trial could follow the Tribunal. She did not wish to do anything that would prejudice herself or anyone else. The matters before the Tribunal had not featured in the criminal trial which had been abandoned by the Crown before the end of the Crown case. Under reference to paragraph 187 of the decision of the Tribunal to the effect that the appellant's conduct involved deception in which she gained a dishonest pecuniary advantage over the respondents and the absence of an explanation from her relating to the deceptions or malpractices that had been mentioned in evidence, the appellant stated that she was not sure what her lawyer would have put forward in defence to that.


[5]
Although the Tribunal records that they took the view that the appellant was astute and intelligent and able to cross-examine witnesses with some skill, the appellant submitted that it was unfair of the Tribunal to criticise her failure to address the principal areas of concern in the respondents' representations and the inaccuracies and misleading entries in patient record cards. The appellant took issue with the Tribunal's assessment that her skills as a cross-examiner were good and suggested that her failure to address the seminal issue of fraud indicated that she was not as skilful as the Tribunal maintained. The Tribunal had formed a general impression of her even although she did not give evidence (paragraph 183). It was not clear that the Tribunal had balanced her lack of representation in a fair way. She had been unable to obtain legal representation. She consulted solicitors who approached her professional body, the Association of Optical Practitioners, who refused to help. The reason for that refusal was apparently because the appellant had instructed solicitors before approaching her professional body. The appellant had been unable to afford to pay for solicitors and Legal Aid was not available for representation before the Tribunal. She had legal representation at her criminal trial and immediately thereafter but there had been delays in the Tribunal proceedings because of a change of chairman.


[6]
The National Health Service (Tribunal) (Scotland) Regulations 2004 as amended ("the Regulations") regulate the procedure before the Tribunal. Regulation 6 is in the following terms:

"6.- Submission of representations

(1) Subject to paragraph (4), representations shall -

(a) be made in terms of Form 1 and shall -

(i) contain a concise statement of the alleged facts and grounds upon which the complainer intends to rely;

(ii) be signed by the complainer or on the complainer's behalf by some person authorised by the complainer;

(b) be accompanied by 2 copies of each document which the complainer proposes to put in evidence; and

(c) be sent together with the copies of the documents relevant to it to the clerk to the Tribunal.

...

(4) If a document which the complainer proposes to put in evidence is of a nature which renders it difficult to make or obtain a copy of it, the complainer shall not be required to submit copies of it."

Regulation 14 provides:

"14. Power to treat representations as withdrawn in certain cases

If the complainer fails -

(a) without showing good cause, to appear in person or by a representative at any inquiry of which the complainer was sent due notice under regulation 12 (notice of inquiry); or

(b) to comply with any other requirement of these Regulations,

the Tribunal may treat the representations has having been withdrawn."

Regulation 32 provides:

"32. Power to dispense with requirements as to notices

The Tribunal may dispense with any requirements of these Regulations applicable to notices, applications, documents or otherwise in any case where it appears to the Tribunal just and proper to do so."

Certain forms and record cards were not provided to the appellant with the representations and prior to December 2004 her solicitor had requested copies. After the conclusion of the criminal trial it was believed that certain of the documents might be in the possession of the procurator fiscal and on 8 December 2004 documents were recovered from the procurator fiscal but none of the record cards recovered at that time related to the representations. The appellant received the documents some time in the autumn of 2005. The appellant explained that prior to January 2006 she had been reading the Regulations and had noted the terms of Regulations 6(1)(b) and 14. At a procedural hearing on 10 January 2006 the appellant raised the failure of the respondents to produce the documents with the representations and invited the Tribunal to treat the representations as having been withdrawn in terms of Regulation 14 by reason of the respondents' failure to comply with Regulation 6(1)(b). In the event the Tribunal exercised its dispensing power under Regulation 32 and repelled the appellant's submission. Despite the respondents' earlier omission they sought and were granted leave on the first day of the hearing of evidence to lodge a list of witnesses and a list of additional productions which now comprise items 2 to 10 inclusive in Appendix 13. The appellant acknowledged that there was no obligation upon the respondents to lodge a witness list in advance of the hearing but as a result of the procedure adopted by them she had no opportunity to precognosce the witnesses because she was at the inquiry all day. She presumed that, if she had been legally represented, her solicitor could have asked for a list of witnesses in advance of the hearing. In retrospect she could have asked for an adjournment. The appellant explained that when the DVD (Production 1 in Appendix 13) was sent to her, no mention was made of the fact that it contained copies of the payment schedules. The payment schedules were not sent to her as paper productions and she had no means of checking the DVD prior to the hearing. She could not check whether the payments had been made. Her diaries were not lodged until the first day and she could not check their entries. When the appellant was referred to paragraph 22 of the Tribunal's decision to the effect that the payment schedules mirrored the actual receipts received in her bank account, she stated that she did not check individual payments. She alleged that there was an element of bad faith and procedural unfairness in the Tribunal allowing productions to be lodged on the first day of the hearing, particularly as she had complained in January about productions having been lodged late. The period between October 2005 and the first day of the hearing on 2 May 2006 had been sufficient time for her to consider the productions lodged in October but the respondents should not have been permitted to lodge others. The productions that were lodged on the first day of the hearing were used frequently in evidence. The practice diaries for the years 1998, 2000 and 2001 were the appointment diaries for those years. The lens order books contained entries made by the receptionist at the practice as did the NHS book (otherwise known as the Beaumont Book) which listed patients and claims made on their behalf. In allowing these additional productions the Tribunal had shown no appreciation of the difficulty facing the appellant as a party litigant at the Tribunal. The appellant had attempted to object to the production of patient record cards on the grounds that this was in breach of the Data Protection Act 1998 but that had simply resulted in an outburst from the chairman of the Tribunal. The absence of legal representation had resulted in unfairness. The appellant had been prejudiced in the presentation of her case before the Tribunal. Although the Tribunal had refused a late Minute of Amendment on behalf of the respondents seeking to introduce a second schedule of alleged fraudulent claims, it had allowed the list of witnesses to be lodged even although these witnesses related to the additional schedule.


[7]
The appellant further submitted that the Tribunal was critical of the appellant's cross-examination of witnesses (paragraphs 111, 116 and 139) and decided to form a general impression of her, although she did not give evidence (paragraph 183). The reason for the Tribunal doing that was unclear. The Tribunal accepted the submission by counsel for the respondents that no witness was challenged in any effective way. This was unsurprising because she was not represented. There was no indication that the Tribunal had balanced her lack of representation to achieve fairness. In summary the appellant submitted that there had been errors in procedural matters as well as substantive matters as a result of which she had been disadvantaged by not being legally represented.


[8]
In relation to the second ground of appeal the appellant confirmed that this was not a separate issue but rather a consequential effect of the decision on the first issue.

Respondents' submissions

[9]
Counsel for the respondents invited us to refuse the appeal. He set out the statutory framework within which the Tribunal operated. Section 29 of the 1978 Act as amended contained the relevant provisions. Where the Tribunal receives representations from a Health Board that a person included in any list meets any of the conditions for disqualification, the Tribunal must inquire into the case (section 29(2)(b)). The appellant is a person included in such a list. The respondents rely upon section 29(6) and 29(7) as reasons for disqualification in this case. Section 29(11) describes cases brought under section 29(6) as efficiency cases and cases brought under section 29(7) as fraud cases. The powers of the Tribunal are contained in section 29B. These include the power to disqualify the appellant from inclusion in the west of Scotland list and all lists applying to the rest of Scotland (section 29B(2)). Section 29B(4) requires the Tribunal not to disqualify a person under that section if they are of the opinion that it would be unjust to do so. The relevant regulations are the Regulations which came into force on 4 March 2004.


[10]
In her grounds of appeal the appellant took no issue with the Tribunal's primary findings in fact, nor with its conclusions that the appellant met the first and second conditions for disqualification (section 29(6) and (7) of the 1978 Act). Instead the appellant contended that the lack of legal representation prevented specific matters going down some unspecified route. Counsel for the respondents submitted that it was not appropriate to look at the question of fairness in isolation. However he accepted that if the court concluded that there had been unfairness which could not be rectified the court should favour the appellant. He also accepted that the decision of the Tribunal could not be sustained if the court found that the proceedings had been unfair in terms of Article 6 but he submitted that, before the court could reach such a conclusion, the court would require to take into account a whole range of circumstances, including the non-availability of legal representation. The appellant was maintaining that the proceedings were unfair because she did not have legal representation but she could not point to specific matters which might have been different if she had had such representation. Despite the appellant's concession that she was not asserting that the absence of legal representation of itself is an infringement of her Article 6 rights, that is the effect of her submissions when they are analysed.


[11]
Counsel for the respondents submitted that the test to be applied in relation to Article 6(1) was whether, in the particular circumstances of the case, it could be said that the provision of legal representation to the appellant had been indispensable due to the complexity of the case (Sutherland-Fisher v The Law Society of Scotland 2003 S.C. 562 adopting the approach in Airey v Ireland (1979) 2 EHRR 305.) There were striking similarities between the present case and Sutherland-Fisher v The Law Society of Scotland. In that case, although the petitioner admitted one complaint relating to his failure to comply with solicitors' accounts rules, the second complaint denied by him related to allegations of criminal activity. These had been the subject of a criminal trial that had resulted in the acquittal of the petitioner. At that trial the petitioner was represented by counsel.


[12]
The appellant had been subject to the recovery of her records in 2001 following investigations by the Counter-Fraud Service. The case had been reported to the procurator fiscal and a decision taken to prosecute the appellant. There had been a passage of time to allow the appellant to prepare her defence and the trial commenced in 2004. At that stage the respondents submitted their representations against the appellant to the Tribunal in respect of matters not covered by the criminal prosecution. The appellant was legally represented at that stage and her solicitor successfully argued on her behalf that it would be oppressive for the proceedings before the Tribunal to continue as long as the criminal proceedings were underway. The Tribunal sustained those submissions and granted an adjournment of the proceedings before it. After the acquittal of the appellant of the criminal charges the respondents sought to submit further representations in respect of matters that had been the subject of the criminal prosecution. Productions in the criminal case were of direct relevance to both representations. For example lens order books, diaries and payment schedules related to both issues, whereas the only matters specific to particular representations were the patient records and claim forms in respect of patients specified in those representations. When the appellant had the benefit of legal representation her solicitors wrote to the Tribunal on 22 November 2005 confirming that the appellant did not intend to issue specific answers to the representations made by the respondents, although the appellant did not accept any of the findings specified in these representations. In effect, the appellant was requiring the respondents to prove their case. In the course of her submissions the appellant had failed to advise the court of the nature of her defence despite being given an opportunity to do so. The nature of the evidence related to practices within the appellant's business. For example, patient record cards recorded numerous attendances by patients at stages where there would not normally be more than one attendance. An expert witness testified that he could not explain such attendances other than as part of a fraudulent scheme. The receptionist employed by the appellant gave evidence about the fraudulent scheme. There were various different ways in which the fraud had been perpetrated. The only person who could address that evidence was the appellant. In the context of allegations of fraud, limited defences were available, such as mistake or the appellant's lack of knowledge of the fraud. A lawyer acting on behalf of the appellant could not advance any case in answer to allegations of fraud without the appellant's instructions. The appellant was able to advance matters before the Tribunal where there were matters to be raised. In the course of her cross-examination of witnesses the appellant raised certain matters, although she did not lead direct evidence about them. Both the Tribunal and counsel for the respondents clarified matters raised by the appellant in cross-examination. This had resulted in the Tribunal concluding that issues raised in the respondents' representations had not been established. One example related to charges for prisms supplied by decentration. Decentration involved the incorporation of a prism into a lens in the appellant's workshop after the manufacturer of the lens supplied it to her. This was contrasted in evidence with worked prisms where the prism is incorporated into the lens at the point of manufacture. Dr Patel, an optometrist, was a witness at the Tribunal hearing. It appears from the decision of the Tribunal (paragraph 148) that initially he thought that it was only legitimate to claim for worked prisms under the GOS Payments Regulations 1986 or 1998. However under cross-examination by the appellant he "found some difficulty with prisms". The GOS Payments Regulations make no reference to "worked prisms". In that situation the Tribunal did not make an adverse finding against the appellant in respect of her charges for prisms supplied by decentration. In her appeal she has failed to advise the court of what matters she was unable to advance due to the absence of legal representation. Moreover, as in Sutherland-Fisher v The Law Society of Scotland the matters at issue were not complex. On any view, the appellant ought to have been familiar with them. They related to the financial intromissions of her business. The records that she kept showed that she was concerned about such matters and kept up to date with them, particularly under reference to the Beaumont Book.


[13]
As in the case of Sutherland-Fisher v The Law Society of Scotland the appellant had been involved in a criminal trial relating to allegations of fraud. She had had the benefit of legal representation, including solicitors and senior and junior counsel. The Beaumont Book, the lens order books and the payment schedules were common to the criminal trial and the hearing before the Tribunal. The payment schedules were scanned from the criminal productions on to a DVD. In the course of the trial the sheriff upheld an objection about the payment schedules being secondary evidence because what had been lodged were certified copies downloaded from the NHS computer. These documents were crucial to the prosecution case and the result of the sheriff's decision was that the appellant was acquitted. Following her acquittal the appellant sought return of her property, although she had copies of the various documents in her possession throughout. Despite having copies until March 2005 she recovered the originals on 31 March 2005. Thereafter she destroyed the original monthly payment schedules, lens orders, the Beaumont Book and diaries. Counsel submitted that it was a reasonable inference that the intention was to defeat the decision of the Tribunal. The Beaumont Book contained a list of every patient seen by the appellant. The entries were supposed to be in chronological order. When a claim form was submitted in respect of a patient, details were entered opposite the patient's name in the book and when payment was received an entry was made to that effect. The appellant maintained such a record for the purposes of her business. The Beaumont Book provided the answers to questions such as which patients had attended, which claim forms had been submitted and which payments had been made. She could have challenged the schedules by reference to the Beaumont Book and presumably she had given instruction in relation to the schedules lodged in the criminal trial. Counsel accepted that the appellant did not have patient record cards but the absence of record cards only meant that she could not check the number of attendances claimed for each patient. However, she could check the dates of attendances against the Beaumont Book. The entries in the Beaumont Book kept by the appellant were not in chronological order because part of the fraud involved holding back claim forms and submitting them at a later date. The receptionist who gave evidence confirmed that this was part of the way in which the fraud was perpetrated. Counsel submitted that this was not a complex case. The appellant had the resources and the equipment to deal with the case at the criminal trial. She had sufficient time between receiving documents in November 2005 and the start of the hearing to prepare for the hearing.


[14]
In the course of her submissions the appellant had raised a number of issues that were not focussed in the grounds of appeal. On one view they ought not to be before the court. The purpose identified by the appellant for raising these issues was to illustrate her lack of legal representation. It was important to bear in mind that the test was not whether there was a lack of representation but whether it was indispensable. The appellant complained about the late lodging of productions. The rules of the Tribunal regulated the procedure before it. The Tribunal heard submissions concerning this matter and exercised its discretion in favour of the respondents. The absence of legal representation was irrelevant. The appellant had shown that she had the ability to read the procedural rules, to appreciate what motion should be made and to make appropriate submissions.


[15]
At the commencement of the hearing before the Tribunal the respondents sought to lodge a Minute of Amendment to include a second schedule containing further alleged fraudulent claims. These related to the claims that had featured in the criminal proceedings. The appellant objected to the introduction of the Minute of Amendment on the ground that it was too late and the Tribunal found in her favour. It is clear from paragraph 19 of the decision of the Tribunal that they considered that the balance was a fine one, but they exercised their discretion in favour of the appellant because she was unrepresented. When the appellant later sought to introduce some material from the second schedule, counsel for the respondents explained to her and to the Tribunal the possible consequences of her doing so. She was given advice by the Tribunal and she withdrew her motion.


[16]
As for the appellant's complaint about the late lodging of the list of witnesses, counsel submitted that there was nothing in the Regulations requiring a party to lodge a list of witnesses in advance of the hearing. In any event, the Tribunal considered the matter and gave a reasoned decision. It was clear from the representations and from the expert's report who the witnesses would be. The appellant could have been in no doubt that witnesses would be required. Witnesses could have been called without the respondents lodging a list.


[17]
In relation to documentary productions the appellant's principal concern seemed to be with the monthly payment schedules which she had destroyed. The Tribunal had ordered production of the appellant's bank statements and they were lodged. These disclosed the monthly payments made by the respondents to the appellant's bank. There could be no dispute about these payments as they were made directly to the appellant's bank from the respondents by BACS. All of these payments coincided with the monthly payment schedules. The appellant did not challenge evidence about these payments and it was inconceivable that such evidence could have been challenged even if she had legal representation. The Beaumont Book kept by the appellant would have provided the information relating to the breakdown of monthly payments. Although that book had been destroyed by the appellant, there were copies of the entries on the DVD.


[18]
The appellant also raised an issue about the Data Protection Act 1998 on a number of occasions, both prior to and after the commencement of the hearing before the Tribunal. She contended that because documents had been recovered by virtue of a search warrant for the criminal proceedings, they could not be used for the purposes of the hearing before the Tribunal. She also maintained that because the records related to particular patients, their use required the patient's consent. Moreover, they were considered by the appellant to be self-incriminatory. The Tribunal had given a reasoned decision in repelling these submissions. In any event the submissions were ill-founded. There was an intrinsic illogicality in the appellant's complaint of self-incrimination. The records were kept by her in connection with her business. As such they were not self-incriminatory.


[19]
The second ground of appeal was simply an elaboration of the first ground and counsel submitted that it fell to be considered along with that ground.


[20]
In summary, counsel for the respondents invited us to refuse the appeal and relied upon a number of characteristics of the appellant. She is a professional person running her own business. She is an intelligent adult who had shown the capacity to understand regulations and to present argument under reference to them. She is articulate. She had carried out preparation for her criminal trial in relation to identical issues containing similar schedules when she had the support of senior and junior counsel and solicitors. Although the criminal trial and the hearing before the Tribunal dealt with different cases, they concerned identical issues and involved the same fraudulent system. There were no emotive or family law issues as in the case of Airey v Ireland. The Tribunal was a less formal environment than a court. The proceedings were held in private and there was no media involvement or press attendance. The court could form its own view as to how the appellant had conducted her appeal.

Appellant's response

[21]
The appellant submitted that the professional member on the Tribunal would be aware of the changes to the regulations in 2006 and the impact that such changes would have on the appellant's business. Her business was located in Govanhill, a poor area of Glasgow, and the majority of her business came from the National Health Service and the social security scheme. Under reference to Sutherland-Fisher v The Law Society of Scotland the appellant observed that the petitioner in that case was a solicitor and she submitted that even a solicitor who had not practised for several years would have more familiarity with procedure than she did. She confirmed that the chairman of the Tribunal had told her that she could stop the proceedings when she had objected about the payment schedules after evidence had been led, but he did not give her advice. In relation to the destruction of records, she stated that she did not check with the respondents if they wished them. Legal aid had been refused on several grounds, namely the appellant should have approached her professional body; the professional body had refused to help her from which it was obvious that they provided assistance to members in appropriate cases; the issue related to a private business matter that the Scottish Legal Aid Board should not be required to fund. Other various issues were raised, but legal aid had not been rejected on the grounds of her financial resources as far as the appellant was aware. The appellant insisted that she had been prejudiced because of the late production of the list of witnesses as she had been unable to precognosce the witnesses, whereas the respondents had precognosced them. With reference to the appellant's concerns about the Data Protection Act and self-incrimination, she advised the court that the new forms prepared by the respondents contained a disclaimer under the Data Protection Act to permit the respondents to use such forms in proceedings. She had been more than happy to submit to the Tribunal that she should not incriminate herself having spent several weeks in a criminal trial.

Discussion

[22]
The appellant contends that she was not afforded a fair hearing in terms of the Human Rights Act 1998 section 6 and Schedule 1, Part I, Article 6(1) by virtue of the fact that the respondents were represented by counsel whereas the appellant had no legal representation. In the course of her wide-ranging submissions, the appellant appeared to accept that it was not sufficient for her simply to state that she did not have legal representation, although upon analysis many of her complaints amounted to no more than that.


[23] The first question is what test should be applied for the purpose of considering whether the appellant has established that her rights under Article 6(1) were infringed by reason of the lack of legal representation before the Tribunal. In Sutherland-Fisher v The Law Society of Scotland at paragraph [19] the court quoted the following passage from Airey v
Ireland:

"In certain eventualities, the possibility of appearing before a court in person, even without a lawyer's assistance, will meet the requirements of Article 6(1); there may be occasions when such a possibility secures adequate access even to the High Court. Indeed, much must depend on the particular circumstances. ... Article 6(1) may sometimes compel the state to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court ... by reason of the complexity of the procedure or of the case."

Thereafter the court observed at paragraph 20:

"There is no doubt that legal representation in cases of this nature will be regarded as an advantage: but it does not follow that the absence of legal representation will necessarily deprive a party of a fair hearing. The requirements of Article 6(1) with respect to legal advice and representation must depend on the facts of each individual case ... In the present case parties are agreed that the proper test to be applied is the test of 'indispensability' and that it is for the petitioner to demonstrate that at the tribunal hearing into the second complaint the provision of legal representation on his behalf would be indispensable in the sense that without such representation he would not be able to present his case properly and effectively and thus could not receive a fair hearing ... On the basis of the Convention authorities to which we were referred, we are satisfied that the test of indispensability is the appropriate test to apply ...".

We respectfully agree with these observations and confirm that the test to be applied is the test of indispensability. As is apparent from the observations in the Opinion of the Court in Sutherland-Fisher v The Law Society of Scotland, that test imposes a high standard upon the appellant. She requires to satisfy us that without legal representation she was unable to present her case properly and effectively and thus was deprived of a fair hearing. In determining that issue we require to consider the whole circumstances of the case, including its nature, the nature of the appellant's defence and her ability to represent herself effectively.


[24]
The respondents' case against the appellant included allegations of fraud committed in a variety of ways, including claiming for charges not incurred. In the face of such an allegation, a limited number of defences are available. These include that the claims were not made; that claims made were not false; that any claims that were false were the result of genuine error; that the appellant had no knowledge of the fraudulent scheme or that payments were not made by the respondents to the appellant. There was no dispute that the payments were made. Sums equivalent to the total amount shown to be due on the monthly payment schedules were credited by the respondents to the appellant's bank account. Equally it could not be disputed that claims totalling such amounts had been submitted by the appellant to the respondents. There was evidence before the Tribunal from an expert witness and from the receptionist employed by the appellant from which the Tribunal could conclude that the claims were false. The evidence of the receptionist excluded genuine error and imputed to the appellant the necessary guilty knowledge. The appellant did not address the seminal issue of fraud in cross-examination or by leading evidence on her own behalf. Only the appellant could have explained the apparent irregularities in the conduct of her business, but she elected not to do so. Her failure to address the issue of fraud is not surprising when one recalls that on 22 November 2005 the appellant's solicitors wrote to the clerk to the Tribunal in the following terms:

"... we are writing to you confirming that it is not our client's intention to issue specific answers to the representations made by the NHS. It is Ms Martin's position that she does not accept any of the findings of the Greater Glasgow Primary Care NHS Trust, Scottish Ophthalmic Reference Service or the NHSS Fraud Investigation Unit as set out within the representations dated 18 March 2004. It is not accepted by Ms Martin that she breached either Schedule 1 of the NHS (General Ophthalmic Services) (Scotland) Regulations 1986 as amended or the NHS (Optical Charges and Payments) (Scotland) Regulations 1998 (as amended)."

The import of that letter was that the appellant, through her then solicitors, was indicating that she was putting the respondents to the proof of their representations and that she had no substantive defence case to advance. That was confirmed in the appellant's submissions before us when she was unable to advise us what the nature of her defence was to the allegation of fraud, despite being given more than one opportunity to do so. At one point in her submissions in regard to that matter she advised us that she was not sure what her lawyer "would have put forward in defence to that." As was submitted by counsel for the respondents it is not the function of solicitors or counsel to advance a specific line of defence without instructions from the client. In the circumstances of this case it is clear that the availability of legal representation would not have altered the approach adopted by the appellant of challenging in cross-examination the witnesses adduced in support of the respondents' representations, but not advancing a positive defence.


[25]
We also consider the nature of the proceedings to be relevant in determining whether legal representation was indispensable. The proceedings before the Tribunal were less formal than before a court. They were held in private and there was no media involvement. They did not involve emotive or family law issues that might have affected the appellant's ability to represent herself (Airey v Ireland).


[26]
Moreover it appeared to us that the appellant was able to represent herself effectively. Effective representation is not to be equiparated with success but rather with the ability of a litigant to understand the proceedings, cross-examine witnesses, comprehend legislative provisions and make appropriate representations to the Tribunal. The appellant appeared to us to be an intelligent and astute professional person who had a sound understanding of procedure and the relevant statutory provisions. At a procedural hearing on 10 January 2006 the appellant made submissions to the Tribunal claiming privilege against self-incrimination in respect of the production of documents in her possession. She also sought the withdrawal of the respondents' representations in terms of Regulations 14(b) and 6(1)(b) of the Regulations. The appellant explained to the court that she had been reading the Regulations when it occurred to her that the respondents had not complied with them. Accordingly she had raised the issue at the procedural hearing. Although her motion for the withdrawal of the representations was unsuccessful, it was apparent that the appellant not only understood the Regulations and the principle against self-incrimination, but was also able to air her concerns in those respects before the Tribunal. In that regard she was clearly not disadvantaged in having to represent herself. She also raised the issue of the application of the Data Protection Act 1998 to patients' records that had been produced. If she had been successful in excluding evidence about such records the respondents might have been unable to prove some of their allegations about her fraudulent scheme. Furthermore it was evident that she appreciated the significance of having original documents. The prosecution against her had collapsed because the Crown had failed to lodge the principal payment schedules and had sought to rely upon copies from the respondents' computer files when the original copies were in the possession of the appellant throughout. When items of her property, including original documents such as lens order forms, the Beaumont Book and diaries, were returned to her by the procurator fiscal the appellant destroyed them prior to the hearing before the Tribunal. Moreover, the appellant successfully opposed a Minute of Amendment seeking to introduce additional cases which had featured in the criminal prosecution. It is clear from the decision of the Tribunal in that regard that they were concerned about the lateness of the application and while the balance was a fine one the Tribunal exercised its discretion in favour of the "unrepresented" appellant. Thus apart from the appellant's familiarity with procedure and the Regulations it appears that the Tribunal took into account the fact that the appellant was unrepresented. In the course of the evidence the Tribunal and counsel for the respondents also made allowance for that fact by pursuing issues raised in cross-examination by the appellant. This resulted in the Tribunal excluding from the alleged fraudulent claims by the appellant those claims relating to prisms that had been effected by decentration in her workshop and also claims for tints.


[27]
We have considered the appellant's submissions relating to the lodging of a list of witnesses and additional productions on the first morning of the hearing and we reject them. There is no requirement in the Regulations upon any party to provide a list of witnesses to the Tribunal or to the other party. Moreover, it must have been obvious to the appellant from the representations and the other documents that witnesses would be called and the likely identity of these witnesses. In relation to the documentary productions it appears from the decision of the Tribunal that the appellant had had the additional productions, with the exception of the monthly payment schedules which she had destroyed, in her possession from September/October 2005 until February 2006 when she delivered them in exchange for copies to the respondents for electronic processing. The decision to allow the additional productions was a matter for the discretion of the Tribunal. In the circumstances outlined by the Tribunal it is inconceivable that a different result would have been achieved if the appellant had been legally represented.


[28]
In all the circumstances we are not satisfied that the appellant has established that legal representation was indispensable in the sense that without such representation she was unable to present her case properly and effectively. Accordingly we shall refuse the first ground of appeal.


[29]
It was a matter of agreement that the second ground of appeal was an extension of the first ground and did not raise any separate issues in this case. In view of our decision in respect of the first ground of appeal we shall accordingly refuse the second ground of appeal.

Decision

[30]
For the foregoing reasons we shall refuse the appeal.


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