IN THE FAMILY HEALTH SERVICE APPEAL AUTHORITY
Case No: 12181
MR. ROBIN CHAUDHURI – Chairman
DR. S.P. SHARMA – Professional Member
MRS. J. NEYLON – Lay Member
DR. D.P. O’CALLAGHAN
(GMC Reg. No. 2621737)
DECISION WITH REASONS
Dated this ……… day of ……… 2006
1. This is an appeal by Dr. O’Callaghan from a decision of Northampton Primary Care Trust (hereinafter referred to as the “PCT”) on 9th November 2005 to remove him from the PCT’s Medical Performers List.
2. At the Hearing on 17th March 2006 Dr. O’Callaghan (who was not present) was represented by his solicitor, Mr. Shaun Murphy. The PCT were represented by Counsel, Mr. Ben Collins.
3. THE BACKGROUND
Dr. O’Callaghan had been working as a General Practitioner in the Northampton area since 1988 (see 2 B 32).
On 6th April 2004 Dr. O’Callaghan was suspended from the PCTs Medical Performers List whilst they conducted an investigation in response to various concerns and allegations. These investigations were subsequently overtaken by Dr. O’Callaghan’s arrest on 4th April 2004 (see 2 B 37).
Initially Dr. O’Callaghan was released on bail but re-arrested on 17th April 2004.
On 12th September 2005 the PCT were formally advised by Northamptonshire Police that Dr. O’Callaghan had pleaded guilty to a number of offences at Northampton Crown Court. These were as follows: (see 2 A 1)
(i) The harassment of Reverend Stevens under S.4 (1) Protection from Harassment Act 1977;
(ii) Assault occasioning actual bodily harm on Jacqueline Timson;
(iii) Doing an act intending to pervert the course of justice;
(iv) Some 12 counts of false accounting.
Dr. O’Callaghan was sentenced to a three year Rehabilitation Order with a Psychiatric Condition on 9th September 2005. (see 2 B 27).
A Restraining Order was also made against Dr. O’Callaghan in respect of Reverend Stevens.
On 21st September 2005 the PCT informed Dr. O’Callaghan that in Practice Reference Committee (the “Committee”) would meet on 21st October 2005 to consider his removal from the PCT’s Medical Performers List.
The Committee concluded that Dr. O’Callaghan was unsuitable to be included in the PCT’s Medical Performers List and that his continued inclusion was prejudiced to the public interest. It is noteworthy that Dr. O’Callaghan failed to attend on 21st October 2005 due to ill-health. The Committee did, however, have the opportunity of hearing from Dr. O’Callaghan’s solicitor, Mr. Murphy.
4. THE HEARING ON 17th MARCH 2006
The Appeal was preceded by an application by Mr. Murphy for an adjournment. In summary, Mr. Murphy made the following observations:
(i) That this was an important hearing. The hearing would be handicapped by the absence of Dr. O’Callaghan;
(ii) That he may not be able to deal with specific issues raised by the Panel because of his inability to take instructions from Dr. O’Callaghan;
(iii) That an oral hearing was essential;
(iv) That there was a mandatory requirement under Regulation 10 (8) (d) The NHS (Performers) List Regulations 2004 (the “Performers List”) to allow Dr. O’Callaghan to present his case.
(v) That Dr. O’Callaghan should have the opportunity to put his case, to present his case, and to have legal representations.
(vi) That Dr. O’Callaghan was suffering from mental health problems. In some 8 to 12 weeks time there would be a better chance of determining whether Dr. O’Callaghan could be fit to attend.
The Panel retired to consider this initial application. The application to adjourn was rejected for the following reasons:
(i) Dr. O’Callaghan has been suspended for nearly two years. It was high time that matters were brought to an end.
(ii) The proceedings were clearly of importance to Dr. O’Callaghan, but the Panel concluded that Mr. Murphy was well able to conduct the case in his absence.
(iii) The Panel felt that continued litigation merely compounded Dr. O’Callaghan’s mental health problem and that an early resolution to this case was in everybody’s interests.
(iv) The provisions in Regulation 10(8)(d) of the “Performers List” require the PCT to give Dr. O’Callaghan an “…opportunity to put his case at an oral hearing…”. Mr. Murphy suggested that this provision is “mirrored” in Regulation 41(3) The Family Health Services Appeal Authority (Procedure) Rules 2001 which, inter alia, entitles the parties to give evidence. The Panel were of the unanimous view that there was nothing in the above provisions which imposed a mandatory requirement on either the PCT or the FHSAA to only proceed with a hearing in the presence of the Appellant. The above provisions simply required the PCT and the FHSAA to give an Appellant the opportunity to put his case and to call such evidence as deemed appropriate.
(v) The Panel considered the letter from Dr. Z. Halim, Locum Consultant Forensic Psychiatrist, dated 9th March 2006, regarding Dr. O’Callaghan’s psychiatric health. The document confirmed that Dr. O’Callaghan was still suffering with “…residual depressive symptoms that have not responded to the current medication”. Dr. Halim was simply unable to give a time-frame in which Dr. O’Callaghan would be fit enough to attend a hearing or to practice medicine.
The Panel concluded that a further adjournment would not necessarily guarantee Dr. O’Callaghan’s attendance on the next occasion.
5. Having dealt with the issue of the adjournment, the Panel heard from Mr. Murphy, and subsequently Mr. Collins:
Submissions made on Dr. O’Callaghan’s behalf:
In summary, Mr. Murphy made the following submissions:
(i) That the Committee on 21st October 2005 concentrated heavily on the “headline” nature of the offences rather than an detailed analysis of the factual background. Mr. Murphy contended that the Committee should have considered the context and circumstances in which the offences occurred.
(ii) Mr. Murphy also referred the Panel to various sections of the “bundle” and sought to provide considerable background detail relating to the offences.
(iii) It was also suggested that the Committee had failed to consider the significant improvement in Dr. O’Callaghan’s health (see 2B 45 paragraph 16 – Dr. Broughton’s Report).
(iv) That, having considered all the circumstances of the case, the Committee should not have removed Dr. O’Callaghan from the List on the grounds of unsuitability. In particular, Mr. Murphy suggested that the Panel should consider the offences of harassment, assault and perverting the course of justice in isolation from the offences of false accounting. If the Panel considered that the three offences above did not merit a finding of unsuitability, then it was possible to consider the option of a contingent removal of the various offences of false accounting.
6. SUBMISSIONS MADE ON BEHALF OF THE PCT
Mr. Collins submitted the following:
(i) The Panel had to determine whether it was appropriate to remove Dr. O’Callaghan from the Performers List on the grounds of “unsuitability”.
(ii) The term “unsuitability” was not defined and its interpretation was a matter for the Panel.
(iii) It was not appropriate for the criminal convictions to be considered in isolation from the fraud related offences.
(iv) These offences were serious and regarded as such by the court and the Police.
7. THE DECISION
The Panel unanimously dismiss Dr. O’Callaghan’s Appeal and remove him from the PCT’s Performers’ List.
(i) There is no evidence to suggest that the Committee on 21st October 2005 simply relied on the “headline” nature of the offences as opposed to considering the circumstances in which the offences had been committed. Page 1 A 5 paragraph 4-8 inclusive) indicates that Mr. Murphy was able to make lengthy oral representations on Mr. O’Callaghan’s behalf, which included reference to a great deal of the material presented before the Panel.
(ii) There is evidence to suggest that the Committee carefully considered the mental health of Dr. O’Callaghan on 21st October 2005 (see 1 A 6). The Panel note that the Committee had sight of the three psychiatric reports. The letter from Dr. Halim dated 19th October 2005 indicates that Dr. O’Callaghan “…has been experiencing severe side effects from an anti-psychotic (Risperidone)….as well as intense and rapid fluctuations in his mental state with considerable anxiety and emotional distress”. (see 2 A 7). Any “significant improvement” in Dr. O’Callaghan’s health has to be put into context. Dr. N. Broughton (see 2 B 45) suggested on 11th August 2005 that Dr. O’Callaghan showed “significant improvement in his symptomology” but this observation was in the context of whether the Appellant would benefit from a Hospital Order under S.37 Mental Health Act 1983. The most recent letter from Dr. Halim, dated 9th March 2006, indicates that the process of rehabilitation for Dr. O’Callaghan is likely to be long and uncertain.
(iii) The Panel conclude that:
(a) the “Committee” correctly considered the factors as contained in Regulation 11(2) (a) – (h) Performers List” and were entitled to declare that this was an unsuitability case;
(b) it would be wrong to look at Dr. O’Callaghan’s convictions in isolation from those which are fraud related. The convictions comprise offences of violence, together with offences of dishonesty. More importantly, the convictions denote a breach of trust on Dr. O’Callaghan’s behalf.
9. Finally, in accordance with Rule 42 (5) of the Rules we hereby notify that a
party to these proceedings can appeal this decision under Sec 11 Tribunals & Inquiries Act 1992 by lodging notice of appeal in the Royal Courts of Justice, The Strand, London WC2A 2LL within 14 days from the date of this decision.
22 March 2006