1.      These two appeals were heard separately on the same day but for reasons which will become apparent both decisions can be conveniently set out together.


  1. Both appeals are pursuant to Regulation 18G(1)(b) of The National Health Service (General Medical Services) Regulations 1998 (as amended)(“The Regulations”) against the refusal by Barking and Havering Health Authority to appoint either Dr. Kukathasan or Dr. Joseph to a vacancy at 195 Rush Green Road, Romford, Essex, purportedly advertised under the provisions of Regulations 18(D).


  1. At the hearing held on the 19th July at Harold Wood Hospital Dr. Kukasathan appeared with Mr. David Grantham of the BMA, Dr. Joseph was unrepresented and Barking and Havering Health Authority appeared through Mr. A Thrower and Mr. G. Woodman, Non-Executive Director of Havering Primary Care Trust.


  1. The right of appeal against practice vacancy decisions is limited to a point of law (Reg. 18G(1)). Both Doctor’s allege that the constitution of the appointment panel may have had an unfair and unintended effect on the final decision. Dr. Joseph further contends that the panel had prejudged the issue as evidenced by conversations he had with Mr. Thrower. During the course of the hearing important regulatory issues were raised for the first time. The Health Authority was given time to consider and make submissions on the new issues.


  1. Dr. Kundu was a single-handed practitioner who gave notice in December 2001 of his intention to retire resulting in a vacancy at 195 Rush Green Road with effect from the 1st April 2002. It fell to the Health Authority to deal with that vacancy under the terms of Part III of The Regulations on the basis that Dr. Kundu intended to withdraw from the Authority’s medical list under Reg.11 (2)(c).


  1. The Health Authority was aware of its duty under Reg.11 and on the 27th February duly submitted a reference in proper form to the Medical Practices Committee. In the meantime the Authority advertised and circulated the proposed vacancy on the 7th February.


  1. Through the General Medical Services Case Manager the MPC replied on the 14th March indicating that it had deferred a decision until further information requested of the Authority had been provided. A note appended to the letter indicates internal discussions between the recipient and Mr. Thrower of the Health Authority on the 25th March.


  1. The recruitment process was moving on apace with short listing by the Medical Appointments Committee on the 6th March, final interviews up to the 19th March with a decision communicated to the parties by letter dated 20th March.


  1. The panel is assured that beyond the letter of 14th March 2002 there is no further relevant correspondence between the Authority and the MPC. Such being the case it follows: -


(a)   there was no decision of the MPC whether the number of doctors undertaking to provide general medical services in the locality was adequate (Reg. 12); therefore,

(b)   there was no declaration of a vacancy in accordance with Reg.13.; therefore,

(c)    there was no finding by the MPC that there was a vacancy for an additional doctor in the locality; therefore,

(d)   the Health Authority could not decide whether the vacancy (if declared) was for a partnership or sole practitioner (Reg.17(4)); therefore,

(e)   the Health Authority could not properly address its collective mind as to whether to advertise under Reg.18 (B) (General partnership vacancies) or 18(C) (Vacancies for sole practitioners), with the different criteria which then apply.


  1. An indication that the Health Authority did not have a clear view of the nature of the vacancy was the fact that it entertained applications from intended sole practitioners’ and also from the successful applicant who clearly was intending to operate from and as part of a partnership practising less the 500 yards away.


  1. The Health Authority’s failure to comply with substantial parts of Part III of The Regulations goes beyond a minor or inconsequential oversight. The failings go to the root of the appointment process, which, on any interpretation of the matters found in para.9, must be inherently flawed.


  1. The panel found nothing in Dr. Joseph’s allegation that the Medical Appointments Committee had pre-judged the application. His suggestion that Mr. Thrower had advised him not to return from Spain because he stood little chance was an inaccurate recollection of the contents of various conversations between the two.


  1.  Although the panel did not consider it necessary to make findings it wishes to make observations on the composition of the Medical Appointments Committee. A partner of the successful applicant is Secretary of the LMC, which, as the panel understands it, is a salaried appointment. The Chair of the LMC (although not sitting as such) and a member of the LMC both sat on the Medical Appointments Committee. There is no suggestion they unfairly influenced the proceedings or conducted themselves in anything other that a proper manner. However, the test is not whether they did or could influence the outcome, rather, would a member of the public who knows all the relevant facts view the interests of the two LMC members (or either of them) so great that it is likely to prejudice their judgment. Circulating names of Committee members’ in advance and/or obtaining declarations of interest at the commencement of the appointments meeting might go some way to avoiding allegations of conflict of interest.


  1. The panel is of the unanimous view that each appeal should be allowed and remits the applications to the Health Authority (or its successor) to re-determine the applications for the vacancy in accordance with The Regulations. Care should be taken to apply The National Health Service (General Medical Services) Amendment Regulations 2002 S.I. 2002 No.554 in so far as it amends The Regulations with effect from the 1st April 2002.


  1. Any party to these proceedings has the right to appeal this decision under and by virtue of Sec.11 of the Tribunals and Inquiries Act 1992.



                         DATED this  8th  day of August 2002  






                                                              Paul Kelly Esq. – Chairman


                                                              Dr. H. Freeman

                                                              Mr. T. Carney