Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16632/90

by Richard COLMAN

against the United Kingdom

The European Commission of Human Rights sitting in private on

5 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 May 1990

by Richard COLMAN against the United Kingdom and registered on

30 May 1990 under file No. 16632/90;

Having regard to:

- reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 7 September 1990 to bring

the application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits ;

- the observations submitted by the respondent Government on

21 December 1990 and the observations in reply submitted

by the applicant on 12 February 1991 ;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1949, resident in

York. He is a medical practitioner in private general practice with

particular interest in the holistic approach to health care. The

applicant is represented before the Commission by Messrs. Bindman and

Partners, Solicitors, London.

The facts of the present case, as submitted by the parties,

may be summarised as follows:

The applicant has been a registered medical practitioner since

1975. When working in the National Health Service (N.H.S.) his

experience led him to hold opinions which accord with the "holistic"

approach to health care. This involves not just treating patients,

but trying to help them to explore the cause of their problems and to

take more responsibility for their remedy.

In 1985 he established a practice in York named the "Holistic

Counselling and Education Centre". He took various measures to make

available the information that this practice had been established,

namely :

(a) In August 1985 writing to 140 general practitioners in and

about York.

(b) In August 1985 leaving his business card and a letter of

explanation with the Family Practitioners Committee, the

Citizen's Advice Bureau, and the Central Library in York.

(c) In May 1986 supplementing the information in (b) above

with a practice information sheet.

(d) Attempting to place an entry in the "Yellow Pages" telephone

directory identifying himself as a private practitioner

(British Telecom refused, their policy being not to make a

distinction between private and N.H.S. practitioners).

(e) In September 1985 being interviewed by the press, which

resulted in a rebuke from the chairman of the Local Medical

Committee;

(f) In November 1985 requesting the chairman of the Local

Medical Committee to circulate to local practitioners

information about his practice. He received no reply.

(g) Thereafter making other fruitless efforts to publicise

information, in particular by proposing, without success,

to give talks.

He then considered the insertion of advertisements in local

newspapers. Recognising that this did not appear to accord with the

Guidance issued by the General Medical Council (G.M.C.), he wrote on

30 March 1987 seeking their advice on the question of practice

advertising and professional ethics. He stated that he would like to

place information in local newspapers as to his qualifications, the

location and hours of his practice, the services offered and the fees

charged.

The G.M.C. is a statutory body, presently governed by the

Medical Act 1983, with powers under section 35 of that Act to assist

doctors in matters of professional conduct and discipline. It

maintains a register of medical practitioners who are entitled to

practise in the United Kingdom. It exercises disciplinary functions

over registered practitioners and may ultimately remove a practitioner

from the register for serious professional misconduct. It is thus

responsible for ensuring that standards of professional conduct are

maintained.

On 18 May 1987 the applicant was informed by the G.M.C. that

to advertise in the local press could lead to disciplinary action

against him for the improper promotion of his practice. He was also

informed that he could make available at public libraries and other

information centres information about his practice, alongside that

given by other doctors in the area.

Such advertising restrictions on doctors did not extend, for

example, to private hospitals, over which the G.M.C. has no control.

Private clinics were thus entitled to advertise their services.

Virtually all other professions in the United Kingdom, including

dentists, had lifted advertising restrictions on their members.

On 10 August 1987 the applicant applied by way of judicial

review for a declaration that the G.M.C.'s decision and policy on the

dissemination of information by doctors was unlawful on the grounds,

inter alia, that it was disproportionate for the following reasons:

a) it went much further than was required to secure the

legitimate protection of medical practitioners and

patients,

and b) it was unlawful because, inter alia, it was a restraint

on the applicant's freedom of expression contrary to

Article 10 of the Convention.

In November 1987 the Secretaries of State for Social Services,

Wales, Northern Ireland and Scotland presented to Parliament a white

paper proposing a loosening of the restraints on doctors' rights to

advertise their services.

On 25 November 1988 the Divisional Court rejected the

applicant's application, awarding costs against him. It held that the

G.M.C. had exercised its discretion reasonably. On the question of

the applicability of Article 10 of the Convention the Divisional Court

further held that the European authorities "though interesting and of

some help on the broad principles to be applied, do not assist on the

particular issues raised ... given the well-established legal

framework for intervention by the English court ... It is for the

applicant to establish that the G.M.C. has in its guidance to him

unreasonably

interfered with his freedom of speech so as to render that

interference unlawful ..." (As a matter of English law,

administrative decisions can only be challenged if they are

irrational, illegal or procedurally improper.)

In the meantime on 24 May 1987 the G.M.C.'s rules on doctors'

advertising were referred to the Monopolies and Mergers Commission

(the M.M.C.). In March 1989 the M.M.C.'s report, which concluded that

the G.M.C.'s rules were not in the public interest, was presented to

Parliament. The Secretary of State for Trade and Industry accepted

the M.M.C.'s report and asked the Director General of Fair Trading to

negotiate with the G.M.C. to implement the M.M.C.'s recommendation to

loosen the restrictions.

On 6 December 1989 the Court of Appeal dismissed the

applicant's appeal against the decision of the Divisional Court, again

awarding costs against the applicant. The Court of Appeal held that

the G.M.C. had not been unreasonable or disproportionate in the

exercise of its discretion. It also rejected the applicant's

arguments under Article 10 of the Convention as follows:

"... it is a principle of construction of United Kingdom

statutes, now too well established to call for citation of

authority, that the words of a statute passed after the

treaty has been signed and dealing with the subject matter

of the international obligation of the United Kingdom, are

to be construed, if they are reasonably capable of bearing

such a meaning, as intended to carry out the obligation,

and not to be inconsistent with it ...

It is not clear ... that, in this case, there is, in the

same sense, any identifiable subject matter within section

35 of the 1983 Act which can properly for this purpose be

regarded as the subject matter of any international

obligation of the United Kingdom under the Convention ...

To use that principle to justify the

reviewing by the court of the substantial validity of the

action or decision in question, which is otherwise lawful

as within the powers given, and to carry out that review

on the basis of the court's judgment as to what amounts

to 'conditions, restrictions or penalties as ... are

necessary in a democratic society ... for the protection

of health or morals ...' within Article 10 para. 2 is to

misapply it for a purpose for which it was ... plainly

not intended."

On 4 January 1990 the applicant lodged a petition with the

House of Lords for leave to appeal. It was rejected on 26 February

1990. Since the introduction of the application to the Commission

the G.M.C. has revised its advertising rules to allow, inter alia, the

publication in the press of factual information about doctors'

services.

COMPLAINTS

The applicant complains that the G.M.C.'s policy, before May

1990, restricting the dissemination of information by doctors about

their professional practices was an unjustified interference by a

public authority with the applicant's freedom of expression, contrary

to Article 10 of the Convention. As a result he has been unable to

develop a private practice from which he could earn a living.

The applicant further complains that he did not have a remedy

before a national authority with jurisdiction to hear his complaint in

relation to Article 10 of the Convention, contrary to Article 13 of

the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 May 1990 and registered

on 30 May 1990. After a preliminary examination of the case by the

Rapporteur, the Commission considered the admissibility of the

application on 7 September 1990. It decided to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits. The

Government's observations were submitted, after an extension of the

time limit, on 21 December 1990, to which the applicant replied on

12 February 1991.

THE LAW

The applicant complains that the pre-May 1990 restrictions on

doctors' professional advertising constituted an unjustified

interference with his freedom of expression, contrary to Article 10

(Art. 10) of the Convention, the relevant part of which reads as

follows:

"1. Everyone has the right to freedom of expression.

This right shall include freedom ... to receive and

impart information ... without interference by

public authority ...

2. The exercise of these freedoms, since it carries

with it duties and responsibilities, may be subject

to such formalities, conditions, restrictions or

penalties as are prescribed by law and are necessary

in a democratic society ... for the protection of

health or morals, for the protection of ... the

rights of others ..."

The applicant also complains of a breach of Article 13

(Art. 13) of the Convention which guarantees a right to an effective

domestic remedy for Convention claims of the above kind.

The Government submit that the applicant can no longer claim

under Article 25 (Art. 25) of the Convention to be a victim of a

violation of Article 10 because the restrictions of which he complains

were relaxed only three days after the introduction of his application

to the Commission. Since November 1987 the Government have sought to

persuade the G.M.C. to reform their advertising rules. The

applicant's complaint was thus remedied as a result of the

Government's efforts and his application serves no general purpose.

Alternatively, if he can still claim to be a victim, they deny

liability for the acts of the G.M.C., which they contend is not a

public authority, not being financed, directed or controlled by them.

Thus there was no interference with the applicant's Article 10

(Art. 10) rights by a public authority. Accordingly, the application

in their view is incompatible ratione personae within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention. Finally, the

Government submit that the application is anyway manifestly

ill-founded.

The applicant states that he seeks a declaration, compensation

and legal costs for the breach of his Convention rights. In

particular he seeks compensation for the considerable financial loss

he suffered as a result of the earlier G.M.C. restrictions on doctors'

advertising. The domestic system failed to remedy the serious

financial prejudice to him, hence he submits that he can still claim

under Article 25 (Art. 25) to be the victim of a violation of Article

10 (Art. 10) of the Convention. The applicant contends that the

G.M.C. is a public authority within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention which has interfered with his rights.

He points out that the G.M.C. was established by an Act of Parliament,

the Medical Act 1983, as a corporate body to regulate the medical

profession. Under domestic law its acts, like those of other public

law bodies, are subject to judicial review (cf. for similar public law

bodies Eur. Court H.R., Barthold judgment of 25 March 1985, Series A

no. 90, and Le Compte, Van Leuven and De Meyere judgment of 23 June

1981, Series A no. 43). Moreover the power to interfere with the

applicant's freedom of expression stems from the state of the law

itself, given the wide powers conferred by the aforementioned

legislation on the G.M.C., which powers rendered the interference with

the applicant's freedom of expression lawful under domestic law (cf.

Eur. Court H.R., Young, James and Webster judgment of 13 August 1981,

Series A no. 44, p. 20, para. 49).

Finally the applicant submits that the interference with his

freedom of expression by the G.M.C. was not necessary. He accepts

that the protection of patients from misleading or manipulative

advertising is a pressing social need which comes within the

protection of health referred to in Article 10 para. 2 (Art. 10-2).

He also accepts that a certain measure of protection should be

afforded to doctors from unfair competition from their professional

colleagues, being necessary for the protection of the rights of

others, also envisaged by Article 10 para. 2 (Art. 10-2). However the

protection afforded by the G.M.C.'s advertising rules before May 1990

was wholly disproportionate, imposing a blanket and indiscriminate ban

on all announcements of the kind sought by the applicant.

The Commission considers that the applicant may still claim

under Article 25 (Art. 25) of the Convention to be a victim of a

violation of Article 10 (Art. 10) even though the disputed rules were

changed shortly after the introduction of his application to the

Commission. This is because for three years the applicant was

effectively prevented from advertising his private medical practice,

which resulted in a loss of livelihood and the outlay of legal fees

in his efforts to have the G.M.C's rules amended. The G.M.C.'s

earlier restrictions on doctors' advertising constituted an

interference with the applicant's freedom of expression, commercial

speech being protected by Article 10 para. 1 (Art. 10-1) of the

Convention (cf. Eur. Court H.R., Markt Intern Verlag GmbH and Klaus

Beermann judgment of 20 November 1989, Series A no. 165, p. 17, para.

26). To ignore those restrictions would have led to disciplinary

proceedings against the applicant which might have ended his career.

Moreover the Commission finds that the G.M.C. is a public authority

within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention,

its functions having been established by legislation with a view to

protecting, inter alia, the professional standards of the medical

profession and, implicitly, safeguarding the public interest in this

field. The G.M.C.'s acts may be subject to judicial review, a form of

judicial control which in itself demonstrates the public nature of

this body. There has thus been an interference with the applicant's

freedom of expression by a public authority.

The parties do not dispute that the interference was lawful

and that, in principle, it pursued legitimate aims, namely the

protection of health and the rights of others. However, whether in

the circumstances of the case that interference was necessary in a

democratic society within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention is a matter which raises complex issues

of law and fact, the determination of which should depend on an

examination of the merits of the application as a whole, including the

applicant's complaint under Article 13 (Art. 13) of the Convention.

The Commission concludes, therefore, that the application is

not manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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COLMAN v. THE UNITED KINGDOM

COLMAN v. THE UNITED KINGDOM