IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY

Case No: 12359

 

 

Mr J D Atkinson††††††††††† ††††††††††† CHAIRMAN

 

DR S SHARMA††††††† ††††††††††† PROFESSIONAL MEMBER

 

MR M RAYNER††††† ††††††††††† MEMBER

 

 

 

Between

 

Dr DEV DUTT

Appellant

and

 

HUDDERSFIELD CENTRAL PRIMARY CARE TRUST

 

Respondent

 

 

Representation:

 

For the Appellant:††††††††††††††††††††††† Mr S Stevenson of Counsel

For the Respondent:††††††††††††††††††††††† Ms M Print of Bevan Brittan Solicitors

 

 

DECISION AND REASONS

 

 

The Appeal

 

1.      This is an appeal by Dr Dutt against the decision of the respondent dated 10 February 2006 to remove him from the respondentís medical performers list under the Health Services Act 1977 (as amended) and associated regulations.

 

The Proceedings

 

2.      The appellant commenced work as a GP in Huddersfield on 14 February 1970. On April 2004 the new General Medical Services came into force under which the appellant provided general medical services to the respondent.

 

 

 

3.      On 4 February 2005 the appellant was suspended from the respondentís performers' list. On 3 May 2005 the suspension was extended. On 13 September 2005 the Family Health Services Appeal Authority (FHSAA) granted a further extension. On 15 and 16 December 2005 and 20 and 27 January 2006 the respondent conducted a removal hearing attended by the appellant and his legal representative.

 

4.      On 10 February 2006 the respondent decided that the appellant should be removed from its performers list. The reasons given for removal may be summarised as follows:

 

i.        the appellant had provided inappropriate clinical care and clinical management to patients

ii.      the appellant had prescribed inappropriately

iii.    the appellantís record keeping and management was poor

iv.    the appellantís practice was financially unstable

 

5.      On 9 March 2006 the appellant appealed to the Family Health Services Appeal Authority. Appeals to the FHSAA are by way of redetermination.

 

6.      By skeleton argument as amended in the course of the proceedings the respondent submitted that, for the purposes of the present appeal, the basis for removal was confined to grounds of an efficiency case because

 

i.        the appellant had provided inappropriate clinical care and clinical management to patients

ii.      the appellant had prescribed inappropriately

iii.    the appellantís record keeping and management was poor

 

The Law

 

7.      The relevant law is to be found in the 1977 Health Services Act as amended together with associated regulations. Extracts of the relevant law as set out in The National Health Service (Performers Lists) Regulations 2004 may be summarised as follows:

 

††††††††††††††††† Regulation 10(3) and (4)Ö a primary care trust may remove a performer from its performers list whereÖ his continued inclusion in its performers list would be prejudicial to the efficiency of the services which those included in the relevant performers list perform.

 

Preliminary matters

 

8.      The appeal was originally set down for substantive hearing on 9 June 2006.The appeal was not ready for hearing by that date and the Panel in consequence issued directions, the full details of which need not be set out here. Amongst other things, the Panel gave permission for the late submission of further evidence from a number of witnesses, and decided, with the consent of the appellant, not to give leave for a statement and hear oral evidence from Ms Priestley, the practice nurse.

 

9.      At the outset of the substantive hearing Mr Stevenson on behalf of the appellant made further application for leave to adduce evidence from Ms Priestley. The application was refused because there were other witnesses who would be able to give evidence on the relevant matters.

 

The documents and evidence considered

 

10. The appellant and respondent submitted originating documentation, which was compiled into bundles marked A and R respectively.

 

11. For the hearing, the appellant filed 2 bundles indexed to tabs 24 and 20 respectively.

 

12. For the hearing the respondent filed 2 bundles, indexed and paginated through to page 865. In the course of the hearing the Panel, with the consent of the parties, directed that pages 346 to 352 of the bundle be removed and they were not considered further.

 

13. In addition, in the course of the hearing the Panel gave leave to both parties to file further evidence as set out in a schedule, indexed A to P, the contents of which need not be set out here.

 

Oral Evidence on behalf of the respondent

 

14. The Panel heard oral evidence on behalf of the respondent from Dr Shamsee, Ms E Scott and Ms L Ricketts. They each adopted as evidence in chief their statements filed in accordance with the Panelís directions of 9 June 2006. They were examined, cross-examined and re-examined. Relevant extracts of their oral evidence may be summarised as follows.

 

15. Dr Shamsee said that he had produced his statement of 22 June 2006 based on examination of each of the records of the patients referred to in his report.

 

16. Patient B, a child 3 years of age had been prescribed 17 prescriptions in 2 years. That was excessive unless the child had a pre-existing medical condition which compromised the immune system. There was no such condition evidenced in the patientís notes. In 13 of the 17 prescriptions no clinical condition was ascribed and no discernible clinical findings on examination noted. There was no evidence of any other investigations having been carried out, there were no clinical details noted, no examination findings and no management plan.

 

17. Patient C, a 45 year old woman complaining of heavy blood loss, had a haemoglobin count on presentation of 10 which was within the anaemic range. An examining GP should have taken a full history and offer an examination with a chaperone. In the absence of significant findings on examination and in the history such a patient should start taking iron. In addition tranexamic acid together with mefanamic acid should be offered.When taken in combination they have a synergistic affect thereby reducing menstrual blood loss. The patient should then be reviewed in 2-3 months time with a full blood count. On review, if the patientís count has worsened a referral should be made to a gynaecologist.

 

18. In patient Cís case, initial treatment in August 2003 was appropriate. However, the appellant did not undertake a repeat full blood count to monitor the patientís progress. The patient's notes have entries for August 2003, September 2003, June 2004, September 2004 and October 2004. The entry for 16 October 2004 did not record the appellantís condition, findings, treatment, diagnosis or management plan. There was a note of a referral to a gynaecologist.

 

19. On admission to hospital, patient C was recorded as having a haemoglobinlevelof 4. In those circumstances it is likely that the patient would be lethargic and fatigued in carrying out the activities of daily living. There are no notes of a review of the patient following her discharge from hospital. The patient had been transfused but had a haemoglobin count of 9.6 which was still within the anaemic range.†††

 

20. Patient E was a 55 year old man who had taken an overdose of prothiadin in 1999. Prothiadin is an old fashioned treatment for depression and, at low doses, for insomnia and chronic pain. In 1999 the British National formulary (BNF) noted cardiovascular side effects and recommended use with caution where there was a cardiac history.In 1994 the patient had been admitted with heart failure. Dr Shamsee would not have prescribed prothiadin in this case.

 

21. The medical notes at pages 576 appear to indicate that on 12 October 1998 patient E was prescribed prothiadin 50 x 50, with one to be taken at night, however the prescription, although said to be for one month appeared to provide treatment for 2 months. The notes made after the patients overdose do not record whether or not the patient was suicidal. They should have done. The records did not contain a letter referring the patient to psychiatric services. The patient was subsequently given a prescription of dothiepin by a locum. Dr Dutt as the locumís principal had clinical responsibility for the patient and should have followed the patient more closely. Such follow up is more difficult without a computer system.

 

22. Patient Eís treatment for sciatica was unacceptable because of his history of heart failure and use of alcohol. In such circumstances the use of anti- inflammatories is not good practice because of the risk of water retention with a risk of precipitating heart failure. Dr Shamsee would not expect 2 anti inflammatories to be used concurrently.

 

23. Patient G was an 82 year old woman with a number of conditions. There is a National Standards Framework (NSF) which sets the gold standard for GPs in treating chronic heart disease. This patient had chronic heart disease but, contrary to the NSF, was not formally reviewed between 2002 and 2005. Without such a review it would be difficult to identify the extent of any deterioration in the patientís condition. There is no treatment plan in the notes save for a reference to Diltiazem.

 

24. The entry in the notes for 12 July 2001, when the patient complained of shortness of breath, does not indicate that a satisfactory examination was undertaken. The patient had a history of breast cancer and lymphoma. Without tests and detailed examination it would be difficult to know the cause of the shortness of breath.

 

25. The appellantís diagnosis of asthma raised a number of issues. Diagnosis should be on the basis of serial peak flows or spirometry. The notes do not show that the diagnosis was made on that basis.

 

26. The notes indicate that patient was diagnosed as asthmatic and also given beta blockers. Beta-blockers are a contra indicated treatment in asthmatic patients because they reduce the airways. The BNF guidance indicates that beta blockers may be prescribed in such circumstances where there is specialist supervision.In this case there was no such supervision.

 

27. Patient J was a 77 year old woman. The notes indicate that initially she was appropriately diagnosed and treated for an overactive thyroid. However, subsequently there was no medical review of her condition. The patient continued to be hyperthyroid despite initial treatment. She therefore was at risk of palpitations, atrial fibrillation and osteoporosis. The patients clinical management was absolutely unsatisfactory.

 

28. The notes of patient L1 failed to indicate that the patient could not be re-called for x ray.

 

29. In patient L2ís case a consultant physician on 26 March 2004 noted that a further x ray should be undertaken within a period of about 6 weeks The notes do not indicate any action being taken on that until 10 months later in February 2005, when the locum spotted the omission.

 

30. In respect of patient K, there existed a shared care protocol which required the appellant to take responsibility for monitoring the patient.

 

31. Relevant extracts of Ms Scottís oral evidence may be summarised as follows. As Assistant Director Ms Scott made arrangements for the administration of the practice following the appellantís suspension.Certain arrangements were necessary because, following the appellant's suspension, he had given staff one months holiday.Ms Scott also made arrangements for locums for the practice. She had not issued any instructions relating to moving papers into the staff toilet area. Ms Scott attended at the reception area in December 2004 and on 27 July (sic) 2005 when papers stored in the toilets were being boxed. She also attended the consulting rooms on one occasion. From her own observations she noted 21 boxes were removed the consulting room and 50 from the toilet area.

 

32. Ms Scott took photographs of conditions in the staff toilet [exhibited at page 495 onwards of the respondentís bundle] when the boxes were moved in June (sic) 2005. At one stage 2 locums were appointed to enable them to deal with surgeries in tandem.

 

33. Relevant extracts of the oral evidence Ms Ricketts may be summarised as follows. Ms Ricketts is a practising pharmacist and has been a pharmaceutical adviser to GPs for 10 years.

 

34. Graph C at page 418 shows the appellant prescribed 73% of antibiotics from a predefined list. The nationally accepted rate is 85%. The variation cannot be explained by the population characteristics of the appellantís patient's list.

 

35. Graph B at page 445 shows that following the appellantís departure theprescribing of generic antibiotics was 86%.

 

36. Graph I at page 430 shows the appellant to be prescribing modified release premium price preparations on a weighted patient unit cost of over £3.00 whereas the target is below £1.00. It is accepted that the prescribing of modified release preparations are a matter of clinical discretion, however it is not necessary to use the most expensive brands.

 

37. Since the appellant's departure there has been a reduction in the patient population, but such changes have no significant effect on the information presented because the measures are weighted to take account of population characteristics such as age and sex. It is not possible to use the population statistics identified by Mr Hughes at page 473as a comparator to the PACT data because they are compiled on a different basis. On the PACT data there is a reduction in the patient population of 70 out of 1770. Such a change would not make a significant difference to the data analysis.

38. Whilst in practice, the appellant had been made numerous offers of support by Ms Ricketts. She had written offering support following discussions with the appellant, however no response was received.As well as following up with a letter Ms Ricketts' secretary made telephone calls to the practice and left messages with the receptionist.

 

Oral evidence on behalf of the appellant

 

39. The appellant, despite having produced a written statement filed with the intention of it being adopted as evidence in chief, decided not to give oral evidence.

 

40. The Panel heard oral evidence on behalf of the appellant from Dr Ahmed, Mr Jepson and Dr Ullah. They each adopted as evidence in chief theirstatements filed in accordance with the Panelís directions of 9 June 2006. They were examined, cross-examined and re-examined.

 

41. Relevant extracts Dr Ahmed's oral evidence may be summarised as follows. Dr Ahmed began work as a GP in 1988 and has known the appellant since then. Dr Ahmed was out of practice for two years from 1996 because of difficulties with the GMC. He retired in 1999.

 

42. Dr Ahmed takes issue with the analysis of Ms Ricketts relating to the appellant's generic prescribing rate of 44% compared to the rate following his suspension of 70% and the inference that such figures show that the appellant's prescribing is not cost effective. In particular the link has not been made between lower generic prescribing being equated with higher costs. Computerisation facilitates generic prescribing. The appellant tried to computerise his practice.

43. Dr Ahmed is aware that the appellant attends medical meetings and keeps up to date.

 

44. In compiling his statement Dr Ahmed had consulted with the appellant.

 

45. As far as patient B is concerned the notes record entries of a diagnosis of UTI and a letter from the patient's mother suggests that a management plan was agreed. It is difficult to distinguish between bacterial and viral infections and in some cases antibiotics might be prescribed because viral infections can lead to secondary bacterial infections. The letter from the patientís mother says that the patient is vulnerable to upper respiratory infections. Without the antibiotics the patients illness would be prolonged.

 

46. As to patient E, prothiadin is not old fashioned but recent indications are that its use should be discontinued. In 1999, however, it was a well established treatment.The appellant had not prescribed the dose of prothiadin which the patient had taken in overdose. The BNF 51 for March 2006 does not indicate that prothiadin is contra indicated where there is a history of heart failure. The subsequent prescription of prothiadin was appropriate if prescribed with caution.

 

47. In the case of patient L1, the appellant had noted that the patient was away in China. It was not necessary to make a referral because in Huddersfield it is possible for a patient, with an appropriate referral card, to be x rayed on the same day as presentation at the hospital.

 

48. In the case of patient L2, she was in a nursing home receiving palliative care and would not be offered treatment to cure any disease. The request that the patient be x rayed had been sent to Dr Fox, and not to the appellant.

49. Dr Ahmed was aware that the appellant had arthritis because he was the appellantís GP. Dr Ahmed had not been practicing as a GP continuously. He had been removed by the GMC in February 1997 and re-instated in May 1999 based on a conviction for fraud in 1996. Dr Ahmed in compiling his statement had relied on photocopies of the medical notes. He was given a version of the appellantís statement in an electronic format and had used in his own statement passages from that document and with which he agreed.

 

50. Extracts of the oral evidence of the practice manager, Mr Jepson may be summarised as follows. The premises of the appellantís practice are very small. There were always problems with storage. Requests had been made to the respondent to assist, but it had not come about. The major protocol in the practice was the receptionist protocol as set out at tab 11 of bundle 2 dated August 2002.

 

51. There are no regular clinics for cholesterol, hypertension and other such issues. The chronic disease management system was reviewed by the practice nurse before Mr. Jepson began working at the practice.Mr Jepson persuaded the appellant to computerise in December 2004. The appellant had previously had use of the VAMPS computer system but had experienced problems with it. The appellant had discontinued its use some years before Mr Jepson began at the practice.

 

52. The practice used a referral diary to record referrals made to secondary care. The appointment system was made on loose-leaf sheets. In addition a handwritten list of patients was prepared for each surgery.

 

53. Many items that required storage were moved into the staff toilets. Over the years there was an accumulation of items that were no longer needed at the premises. The papers were moved into the staff toilet at Mr. Jepson's initiative in response to the proposed QOF visit and with a view to reducing the clutter. The consulting room contained 18-20 archive boxes of the appellantís personal papers. Accessibility within the room was reduced to a pathway of about 18 inches between the boxes. Originally only the appellantís personal papers were moved into the staff toilet, but various other items were later moved in there.

 

54. The loose-leaf appointment records were kept on an open shelf in the receptionist area and then archived annually. There is no formal system for recording occasions when a patient does not attend for an appointment. Data on chronic disease management are held on computer spreadsheets.

 

55. Relevant extracts of the oral evidence of Dr Ullah may be summarised as follows. Dr Ullah retired from practice in 2004. He keeps up to date with medical matters.

 

56. In respect of patient C, given the range of reliability of laboratory tests, it is not the case that a haemoglobin score of 10 would necessarily require investigation. In the context of someone experiencing heavy bleeding, it would be kept under review. In this case the patient had refused to undergo blood tests. Where a person records a haemoglobin of 4 and is of West Indian origin recognition of a condition would be difficult because of the colour of the mucus membrane which varies from person to person.

 

57. At this point in giving evidence, Dr Ullah began reading entries in the medical notes for 29 October 2004, in the course of which he indicated that he was unable to read some of the remarks. He could find no entry in the notes of the patient refusing to have an examination, however he said that he had interviewed the appellant who had told him that the patient had refused to consent to examination. The appellant had taken appropriate action by making a referral which was evidenced by the patientís account in her letter of complaint. It was not reasonable to suggest that the patient had not been followed up. It was also debatable as to whether or not blood tests should have been carried out by the appellant because clinically they may not have assisted in making a diagnosis.

58. In relation to patient G, it is not the case that the use of beta blockers are always contra indicated in patients with asthma. It is a question of whether the benefit outweighs the risk involved in such cases.

 

59. In the case of patient J, the appellant had correctly diagnosed the patientís thyroid condition and treated it appropriately.In the course of his oral evidence about patient J, Dr Ullah referred to entries in the notes relating to the year 1988. Dr Ullah indicated to the Panel that he was unable to read them.

60. In the case of patient K there was no written protocol as to who should take responsibility for monitoring the patient.

 

The Respondentís submissions

 

61. Ms Print, on behalf of the respondent, relied on her skeleton argument and made a number of further submissions that may be summarised as follows. This is an efficiency case under the performers regulations. Regulation 11(6) sets out the mandatory matters to be taken into account in such circumstances. Those matters can include issues relating to record keeping and the availability of support for such activities.

 

62. In general terms inappropriate clinical care may arise by act or omission where patients are not systematically reviewed and where there is a lack of initial diagnosis, follow up and audit.

 

63. In relation to the clinical care and management of specific patients the following matters were evidenced

 

i.        Re patient B who had been prescribed 17 course of antibiotics in 2 years, there was no diagnosis of a pre-existing condition which would give rise to such a high prescribing rate. The appellant in the notes had used the abbreviation UTI. This is a common abbreviation for urinary tract infection, however it was said in evidence that it stood for upper respiratory tract infection. In such circumstances a locum would have difficulty providing appropriate continuity of care. The notes failed to record a management plan and made no distinction between self-limiting and viral infections.

 

ii.      Re patient C, who had been anaemic, the appellant had failed to undertake a simple diagnostic test, such as the eyelid test, and had not shown evidence of a clinical curiosity in the patientís changing presentation. Following the patientís discharge from hospital, the appellant had failed to review her condition or put in place a management plan. The medical notes were so poor that the appellantís witness, Dr Ullah, who had had the advantage of reading the notes at his leisure and with the benefit of interviewing the appellant, had struggled to read aloud the notes before the Panel. The notes failed to record the appellantís claim that the patient had refused to undergo an intimate examination.

 

iii.    So far as patient E Is concerned, it was accepted that the evidence was contentious, however the evidence of Dr Shamsee should be preferred to that of the other witnesses.The notes did not indicate any post overdose follow up. The repeat prescription of the same drug used in a suicide attempt demonstrated a lack of reflective practice. The use in combination of 2 NSAIDs put the patient at risk because of a pre-existing heart condition.

iv.    The records of patient G indicated a lack of consistent record keeping. There was no documented evidence of appropriate management of the appellantís condition. The BNF guidelines were clear that those with a diagnosis of asthma should not be offered atenolol save under the supervision of a specialist. The case as a whole demonstrated a lack of reflection on the part of the appellant particularly given the patient's history of cancer.

 

v.      The records of patient J speak for themselves. The patient was hyperthyroid for a 16 year period yet her treatment dosage remained the same despite thyroid functions test indicating her being as hyperthyroid and requesting her drug treatment to be monitored. The treatment offered gave rise to an underlying risk of atrial fibrillation, osteoporosis and CVA, given her elevated cholesterol. The medical notes do not record the patient as indicating that the elevated cholesterol would be treated by way of diet.

 

vi.    Entries on patientís L1ís record were undated. There was delay in arranging a follow up x ray given the timescales requested for follow up.

 

vii.  In respect of patient L2, x rays should have been obtained to rule out any sinister cause of the patientís presentation. There is no note in the records indicating that the patientís family did not wish for medical issues to be followed up. However, diagnosis was important in order to determine a treatment plan, which might include palliative care.

 

 

64. The appellantís prescribing behaviour was inappropriate. The evidence of Ms Rickets showed on a number of measures that the appellant was either in the lowest quartile or the absolute lowest scorer.The measures used took intoaccount not only the cost of treatments but also the quality by virtue of weighted assessment.

 

65. The evidence of Ms Scott and the appellantís own witness, Mr Jepson showed the appellantís record keeping to be poor. Protocols were not regularly reviewed.There was no formal process for recording the non-attendance of patients at GP surgery. There was no systematic approach to appointments and referrals. Appointment and referral details were kept on open shelving within the view of members of the public. There was no systematic approach to the management of chronic disease registers. The appellant stored so many boxed files of his private patient papers in his consulting room that patients had to negotiate an 18 inch wide pathway between boxes.

 

66. And finally, Ms Print submitted that contingent removal of the appellant was not appropriate. The appellant had failed to comply with the respondentís requests over a number of years and had shown himself to be obstructive. It was difficult to see how conditions relating to re-training on prescribing issues would be complied with given the appellantís lack of reflection and insight.

 

The Appellantís submissions

 

67. Mr Stevenson, on behalf of the appellant, relied on his skeleton argument and made a number of submissions that may be summarised as follows. The sample of patients reviewed in the course of the respondentís investigations was not representative. The evidence showed that there was a range of GP opinion on what was considered to be adequate clinical management. The appellantís case was supported by three consultants.

 

68. Mr Stevenson in respect of individual patients further submitted that

 

i.        In the case of patient J, it was possible to draw an inference from the notes that the patientís treatment doses for carbimazole was reviewed; that the appellant was justified in relying on the patient's presentation rather than the bio chemical data; and the patientís compliance was poor and had been referred to BUPA.

 

ii.      As to patient G: the patient had not suffered heart failure and there were no contra indications for the prescription of atenolol.

 

69. As to storage of records, Mr Jepson was a credible witness and his evidence should be preferred to that of Ms Scott where there was a conflict. The storage of records and papers in the staff toilet had occurred when the appellant was not in control of the premises. Certain matters were delegated to employees in respect of whom there was an effective protocol in place.

 

70. The mortality rate with the appellantís practice was good despite the high level of deprivation within the patient population. There was an appropriate appointment system in place. Since the appellantís suspension there were changes in the prescribing profile of the practice. This was attributable to patients leaving the practice because they were dissatisfied.

 

 

 

71. ††In summary the respondentís case should be subject to anxious scrutiny. Only if the Panel were clearly satisfied that removal was necessary should they so order. It was accepted that the respondent may have a case in relation to prescribing issues. If the Panel were to consider contingent removal appropriate conditions relating to prescribing could be imposed. In particular, the appellant should be given the opportunity to operate a computer system after undertaking appropriate training and to undertake further training on reviewing patients.

 

Assessment of Evidence andFindings of Fact

 

72. The Panel considered all the evidence, the submissions of the representatives and makes the following findings.

 

The medical records

 

73. The Panel finds that the appellant has failed to comply with the requirements of good medical practice as set out in the GMC guidance on good medical practice in thatthe appellant has failed to keep clear, accurate, legible and contemporaneous records which report the clinical findings, the decisions made, the information given to patients and any drugs or other treatment prescribed.

 

74. The legibility of the records speak for themselves. The Panel, in a number of instances was unable to decipher the notes. Dr Ullah, when giving evidence on behalf of the appellant was at times unable to read the notes relating to for example patients C and J, despite having had the opportunity of perusing the notes at his leisure and in consultation with the appellant. The Panel further notes the written evidence adduced on behalf of the appellant, such as Dr Campbell, which show they found the notes illegible and difficult to follow.

 

75. The records also show that the appellant failed to accurately record findings, the decisions made, the information given to patients and treatment.

 

76. For example, in relation to patient B there was no indication of examination, no documentation of positive or negative findings and limited diagnosis.Of the 17 entries indicating treatment of the patient only 4, at best, appear to have a diagnosis attached as indicated by the letters UTI.The appellant did not give direct evidence as to the meaning of that abbreviation, however it was said by Dr Ahmed on the appellantís behalf that the abbreviation stood for upper respiratory tract infection. The Panel notes the evidence of other practitioners and takes judicial notice that the abbreviation UTI is commonly understood to be mean urinary tract infection.

 

77. Dr Ahmed also agreed that the notes failed to record a management plan for the patient, but he suggested that evidence from the mother showed that one had been agreed. That may be so. However, good medical practice requires a contemporaneous note on the record and Dr Ahmed did not refute the suggestion that the medical record failed to show this.

 

78. By way of further example of the inadequacy of the appellantís medical records, the Panel notes in relation to patient C that the appellant had failed to document his claim that the patient had refused to consent to examination. Again, those who gave evidence on behalf of the appellant, in this case Dr Ullah, agreed that the notes failed to record a relevant matter namely the refusal of consent. The Panel further notes that Dr Ullah was in a position to say that the patient had refused consent because the appellant had told him that that was the case. As noted previously, the Panel did not hear oral evidence from the appellant on this.

 

Clinical management

 

79. The Panel notes here that adequate record keeping is an integral part of good medical practice, because without it there is a real risk that patients will not be offered appropriate diagnosis and intervention. Good clinical notes go hand in hand with good clinical management enabling proper diagnosis, treatment, referral and review to occur.

80. The Panel finds that the evidence shows that the appellantís clinical management of patients has been inadequate.

 

81. For example, patient J was initially appropriately diagnosed with an overactive thyroid in 1988 and prescribed neomercazole. Over the next 10 years the medical notes do not record a review of the patientís medication. In 1998 a thyroid function test suggested the patient be monitored, a similar test in 1999 queried whether the patient was taking carbimazole and another test in October 2000 suggested that the patient had toxicosis.

 

82. It was suggested on behalf of the appellant that her thyroid condition went untreated because the patient declined a referral. The Panel does not find that to be recorded in the clinical records, and further notes that it does not provide an explanation for the failure to review medication and make adjustments as appropriate.

 

83. The Panel rejects the submission of Mr Stevenson to the effect that it is possible to draw an inference from the notes that the patientís doses for carbimazole were reviewed. It was submitted on behalf of the appellant that a close reading of the notes showed that the doses varied. The Panel finds that the notes do not clearly record the relevant doses prescribed as the entries do not indicate the dose or frequency of the prescribed drug. The Panel also rejects, as no more than a makeweight argument unsupported by authority, the submission that that the appellant was justified in relying on the patient's presentation rather than the biochemical data. The Panel also attaches little weight to an early entry in the records concerning a referral to BUPA.

 

84. The Panel finds the clinical management of patient G to be a further example of poor clinical management. The evidence shows the patient to have a complex medical history of breast cancer, lymphoma and angina.

 

85. Part of her treatment included taking atenolol, a beta blocker for her angina. The patient was also subsequently diagnosed by the appellant as having asthma and prescribed an inhaler. The evidence of both Dr Shamsee and Dr Ullah although presented as being in conflict, were essentially at one on the question of use of beta blockers in patients with asthma, namely that although beta blockers were generally contra indicated in some circumstances they may be appropriate. However, such treatment should be undertaken under the supervision of a specialist. It is not contested that the appellant made no such arrangements. In addition, the records fail to show that the appellant made arrangements for formal reviews of the patientís chronic heart disease.

 

86. The Panel further finds that the appellant did not make appropriate arrangements for further investigations on patient Gís presentation with shortness of breath despite her complex medical history.

 

The appellantís prescribing profile

 

87. The Panel finds the evidence of Ms Ricketts to be reliable. Her opinions are based on data that was made available to the Panel and are objectively verifiable. She has given a clear account of her methodologyand was able tojustify her opinion on cross examination.

 

88. The Panel finds that the appellant is the poorest performing practice within the PCT for generic prescribing. The Panel finds that the appellant has the poorest generic prescribing rate for anti biotic prescribing. The Panel note here in passing, that such evidence is consistent with the clinical records of patient B asnoted above. The Panel finds that the appellant is the poorest performing practice in prescribing premium priced preparations with a then current rate of £3 per patient unit.

 

89. The Panel finds that since the appellantís suspension there have been significant improvements in the practiceís prescribing profile, for example generic prescribing in the period to December 2004 was 44% but in the period to April2005 was 70%.

 

90. The Panel rejects the submissions on behalf of the appellant to the effect that the prescribing data is not a reliable basis on which to base a decision.

 

91. The Panel notes that whilst it would have been preferable for data covering similar periods to have been used in order to compare the practice performance before and after the appellantís departure, nevertheless the methodology is sufficient robust to show the potential for improvement. In that context the Panel rejects the submission that such differences that have been demonstrated can be explained in terms of population change of the patient list. That submission is unsustainable because it fails to take into account that the comparative analysis draws on weighted data to reflect the population profile, and, in addition, the differences in population size, of about 70, is not statistically significant given an overall population in excess of 1700 (see Schedule of evidence A1).

 

92. The Panel finds that Ms Ricketts over a number of years attempted to engage with the appellant with a view to offering support in improving his performance in areas such as drug budgets, generic prescribing and appropriate drug use. The Panel finds that the appellant failed to constructively engage with Ms Ricketts.

 

Other areas of concern

93. The Panel finds that the evidence shows there are a number of other concerns, which fall for consideration when assessing an efficiency case. The Panel finds that the appellant failed to make appropriate provision for the storage of files and personal papers within the practice. The evidence of Mr Jepson relating to the storage of archive files in the consulting area shows that the appellant failed to make adequate provision for storage of papers. The Panel also finds that the operation of the appointment system was less than robust. Thus there was no formal system for recording occasions on which patients failed to attend for appointment and loose-leaf notes of appointments were stored on open shelves.

 

Decision and Reasons

 

94. Looking at the totality of the evidence in the context of the criteria for removal from the performers list and in the light of the above findings, the Panel directs that the appellant be removed from the respondentís performers list because his continued inclusion would be prejudicial to the efficiency of the services which those included in the relevant performers list perform.

 

95. The Panel considered Mr Stevensonís submissions noted in the preceding paragraphs on contingent removal. The Panel finds that this is not an appropriate case in which to direct contingent removal. Contingent removal involves the imposition of conditions on a performer with a view to removing any prejudice to the efficiency of the services in question.

 

96. In order to address the findings of the Panel in relation to his inefficiency the appellant would need to first acknowledge the difficulties that he faces. In the course of these proceedings the Panel has not found there to be significant evidence demonstrating that the appellant acknowledges the extent of his inefficient practice or that he has either the ability or willingness to change. No substantial evidence has been adduced to support a submission that the imposition of conditions would have a realistic prospect of removing the prejudice to the efficiency of the services. Nor can the Panel find significant evidence of the appellant engaging in reflective practice in the course of his clinical management of his patients or his practice generally. In those circumstances the Panel is unable to identify any conditions which could be imposed with a view to removing any prejudice to the efficiency of the services in question.

 

Summary

 

97. The Panel directs that Dr Dev Dutt is removed from the Central Huddersfield Primary Care Trust performers list on the grounds that his continued inclusion in its performers list would be prejudicial to the efficiency of the services which those included in the relevant performers list perform.

 

98. In accordance with Rule 42 (5) of the Rules the Panel hereby gives notice 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 28 days of receipt of this decision.

 

 

Signed†††††††††† †††††††††††††† †††††††††††††† †††††††††††††† †††††††††††††† †††††††††††††† †††††††††††††† †††††††††††††† Date

 

 

MR J D Atkinson

Chair