And
HILLINGDON PRIMARY
CARE TRUST
1.
This is an appeal
pursuant to Regulation 18G(1)(b) of The National Health Service (General
Medical Services) Regulations 1998 (as amended), against the refusal by
Hillingdon Primary Care Trust (the PCT) to appoint Dr Rahim to the sole
practitioner vacancy at The Warren Health Centre, Uxbridge Road, Hayes,
Middlesex, advertised under the provisions of Regulation 18(C), (D) and (E)
2.
At the hearing held at
The Hillingdon Hospital on the 12 June 2002 Dr Rahim appeared with Mr Wishart
of the British Medical Association and the PCT through Mr Aldridge of Counsel.
3.
The right of appeal
against such decisions are limited to a point of law (Reg.18G(1)). Dr Rahim
alleges that the manner in which the PCT handled the issue of references was
flawed to an extent that denied him the opportunity of competing for the
vacancy on equal terms.
4.
The PCT appointed Dr
Rahim as locum at The Warren Health Centre some 14 months’ before declaring the
vacancy. On 10th November 2001 Dr Rahim applied to fill the vacancy.
His referees were Dr P Stephens, principal of a second practice operating out
of The Warren, and Dr V K Chatrath for whom Dr Rahim had worked as a locum and
whose name, significantly, he had given to the PCT as referee prior to his
appointment as locum at The Warren.
5.
Dr Rahim was
shortlisted and his interview arranged for the 5 December 2001. On the 29 November Dr Rahim. was informed
that Dr Stephens could no longer act as referee because his partner had applied
to fill the vacancy. As a fact the panel found it was Dr Rahim who suggested to
the PCT that Mrs H Patel of The Warren Medical Centre, Phsyiotherapist, should
replace Dr Stephens as referee.
6.
The interview panel
consisted of a representative of the Human Resources Department of the PCT, the
Locality Development Manager and Dr Gutteridge, Consultant in Public Health
Medicine and Medical Adviser, in the chair. Dr. Gutteridge fairly conceded that
it would have been desirable for a practising G.P. to have been on the panel,
indeed that was the intention but the nominated practitioner was unable to
attend.
7.
Dr Rahim’s interview
was satisfactory and the panel intended to appoint him to The Warren vacancy
subject to references. Following the decision it became apparent that, contrary
to usual practice, the Human Resources Department did not have written
references from either referee. At this point Dr. Gutteridge took it upon
himself to speak to Dr Chatrath, which he did on the morning of the 6th
December. As a result of that conversation Dr Gutteridge recommended to the
panel that it should not appoint Dr Rahim and indeed the vacancy was offered
elsewhere.
8.
Dr Gutteridge spoke to
Dr Rahim on the morning of the 8th December to inform him that his application
was unsuccessful. Dr Gutteridge’s note of the conversation is instructive. He
advised Dr Rahim to think carefully about whom he should ask for a reference as
Dr Chatrath. “was not happy to give him one.”
The impression gained from that observation and also from hearing Dr
Chatrath’s evidence was that indeed Dr Chatrath was reluctant to say anything
about Dr Rahim and did so only on being pressed. It is noteworthy that the
letter from the PCT to Dr Chatrath’s practice asking for a written reference
had gone unanswered although it was not clear from the evidence whether this
was an oversight or intentional.
9.
After considering the
evidence, re-reading the appeal bundle and taking into account submissions the
panel came to the following conclusions:-
(a) it was undesirable and indeed improper to obtain an
oral reference from a clearly unwilling referee. Although the burden was upon
Dr Rahim to ensure his references were available to the appointment panel, in
the circumstances of this case Dr Rahim might properly have expected Dr
Chatrath to provide a written reference.
He had done so on earlier occasions and Dr Chatrath referred to a written
reference from his practice which apparently indicated that Dr Rahim as
acceptable for a locum post. Indeed Dr
Chatrath was the named referee when Dr Rahim first applied for the locum post
at The Warren.
(b) Lack of written references should have led the panel
to defer making the appointment until Dr Rahim had been informed and given the
opportunity to remedy the position.
(c) Whilst not inferring that Dr Gutteridge acted
otherwise than in good faith, his report to the other panel members’ of his
conversation with Dr Chatrath must have meant, of necessity, he gave his own
version of the conversation, without the emphasis, immediacy and colouring of
the conversation itself. A virtue of written references is that they speak for
themselves and can be read by each panel member who can form his or her own
view on what is in front of them. Dr
Gutteridge said that he did not ask Dr Chatrath to confirm the conversation in
writing.
(d) Dr Gutteridge was by some distance the most senior
of the appointment panel. The tenor of his evidence was that he told the other
members’ they should not appoint Dr Rahim. Unlike the decision to appoint Dr
Rahim we were not referred to any notes of further discussions between the
panel in the light of Dr Gutteridge’s report of his conversation with Dr
Chatrath. In particular there was no attempt to set-off the oral reference
against the 14 months’ presumably satisfactory employment as locum at the
practice where the vacancy was declared.
(e) Despite evidence from the PCT Practice Development
Manager that references “ form a very important part of the appointment
procedure”, no attempt was made to obtain the reference from Mrs. Patel, which
may (or may not) have gone some way to redressing the unfavourable impression
left by Dr Chatrath. It was wrong of the PCT to say that it did not call for
Mrs. Patel’s reference because it would have made no difference. The duty to
act fairly toward Dr Rahim required the PCT to have before it and consider all
the material relating to Dr Rahim’s application. There is nothing in Dr Rahim’s
point that he was not given the job because he had given Mrs. Patel as a
referee and not a General Practitioner.
10. The panel are of the unanimous view that the
evidence discloses procedural irregularities leading to unfairness in the way
in which the PCT dealt with the application by Dr Rahim, allows the appeal and
remits the application to the Primary Care Trust for re-consideration with the
following directions:
(i)
the PCT appoint a new
selection committee to act on its behalf and, providing regulations so admit,
such committee be drawn from persons outside the district covered by the
Hillingdon Primary Care Trust
(ii) the papers held by the PCT in respect of the
present application should remain closed and unavailable to the new selection
committee
11 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 day of 2002.
………………………………….
Mr Paul Kelly - Chairman
Dr Rahim K
Rathi - Professional Member
Mr A G W Harbour - Lay Member