Dr P Leigh - Professional Member
Mrs VEM Barducci - Member
DR AZHIR MANZUR SARFRAZ
(REGISTRATION NUMBER 4069933)
1. On 14 June 2004 (after a hearing on 10 June 2004) for the reasons set out in Decision 11098 we dismissed an appeal by Dr Azhir Manzur Sarfraz (“the Appellant”) against the decision of the Billericay, Brentwood and Wickford Primary Care Trust (“the PCT”) of 10 February 2004 refusing his application for inclusion in its Supplementary Medical List under section 43D(8) of the National Health Service Act 1977 (as amended by section 25 of the Health and Social Care Act 2001) (“the Act”) and Regulation 6(1) of the National Health Service (General Medical Services Supplementary List) Regulations 2001, S.I. 2001 No. 3740. The appeal was dismissed only on the ground of unsuitability.
2. Under section 49N(3) of the Act the Panel is empowered, on dismissing a practitioner’s appeal, to impose a national disqualification. At the June hearing the PCT urged upon us the view that this was a suitable case for the exercise of that power. Since no prior notice of this had been given to the Appellant it was common ground that consideration of the imposition of a national disqualification should be adjourned to a further hearing.
3. That further hearing took place on 19 August 2004 at the Care Standards Tribunal, London SE1. The PCT had requested an adjournment of the hearing on the ground that Counsel who had represented it at the first hearing was unavailable. This application was refused at a short Directions hearing held on 27 July 2004 at the offices of Messrs Hempsons who had been appointed by the Appellant to represent him in place of the British Medical Association. The basis for the refusal was that the prejudice to the Appellant resulting from an adjournment until the second half of October (the first date otherwise available to reconvene the entire Panel) outweighed the inconvenience to the PCT occasioned by a change of Counsel where a reasoned prior decision was available and the underlying factual disputes could not be re-opened.
4. The Appellant was represented at the hearing by Ms Christina Lambert instructed by Hempsons and the PCT by Mr John Gimlette instructed by Radcliffes Le Brasseur.
5. Both parties made initial written submissions and the Appellant provided witness statements from Dr IH Gulamali, Dr NR Merali, DM Susans and JP Matthews. None of these was called to give evidence but the Panel took their statements into account. In summary these statements, as well as describing the makers’ professional contact with the Appellant, made the following points in his favour.
6. Dr. Gulamali: the Appellant took his professional development seriously; denied the truth of the allegations against him in November 2003; readily accepted conditions of GP Direct; worked hard and prepared for MRCP examinations; had very good clinical skills; conducted of supervised and unsupervised examinations and referrals to female colleagues appropriately; received positive feedback from patients; arrived punctually and kept good time at appointments. On the other hand, Dr Gulamali had not been informed by the Appellant that he (the Appellant) was “not on the List” and the attachment was therefore immediately suspended.
7. Dr. Merali: the Appellant readily accepted conditions of GP Direct; received positive feedback from patients via staff; would be acceptable for a further 6 month supervision.
8. Nurse Deanna Susans: the Appellant was keen to work with consultants; had an excellent patient manner; went out of his way to do his clinical best for patients; had a friendly and open manner; was appropriately tactile with colleagues and patients; always requested a chaperone when appropriate; was very conscientious.
9. Nurse Jonathan Matthews: the Appellant provided detailed and enthusiastic care to patients; was always ready to give professional help; was tactile in an inoffensive but perhaps naïve way; always requested a chaperone when appropriate; was open about but shocked by the allegations against him; was a very caring and supportive GP.
10. The Appellant gave evidence. He again described his career since qualification in 1994 and told us he had not seriously considered an alternative career to general practice. Removal of this would be a professional, financial and family disaster and effectively end his medical career. He explained that the provision of continuing care as a family doctor was his aim. He described his attendance at continuing education events and study for the MRCP and a Diploma in Dermatology. He offered an undertaking not to practise in Billericay, Brentwood and Wickford (“BBW”) without obtaining the consent of the FHSAA.
11. On cross-examination he conceded that he was not long established as a GP (having practised for only some 22 months) and accepted that he was wrong to begin work in November 2003 before admission to a List. He accepted that, if nationally disqualified, he could work in other areas such as the private sector, Armed Forces and hospital medicine but did not think that our findings would be “taken in a good light”. He had re-taken the MRCP examination after narrowly failing it during his suspension. He had decided to continue to study for the MRCP (which he accepted was mainly appropriate to hospital medicine) before undertaking the MRCGP examinations which he accepted was the “ultimate” qualification for his chosen career. He told us that he could not undertake the MRCGP whilst “off the Register”.
12. The Appellant told us that he had contacted Dr. Gulamali shortly after the August 2002 PCC hearing but not again until he sought a reference from him for the August 2003 hearing. He accepted that he had not attended the Consultation Skills Course recommended by Dr. Gulamali.
13. We asked for clarification of his application to join a Harrow PCT List and were told this was awaiting the outcome of this hearing. The Appellant also gave evidence that he had asked for review of his case by the Professional Conduct Committee of the General Medical Council (“PCC”) to be accelerated so that an early resumed hearing took place in March 2004. He had told the PCC that his application to join the PCT’s List has been refused and supplied the PCT’s reasons for refusal and report to the PCC. On legal advice the PCC had not taken the evidence on which the PCT had based its refusal of the Appellant’s application. The PCC will review the conditions on his registration again in September 2004.
14. It was agreed between the parties before us that the hearing should proceed on the basis that the PCC in its March 2004 determination neither upheld nor rejected the allegation of dishonesty against the Appellant arising out of document D1A.
15. In his oral submissions Mr Gimlette for the PCT closely followed his written summary submissions.
16. He acknowledged the doubt whether the concept of proportionality inherent in the jurisprudence of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”) applied: see Kataria v Essex Strategic Health Authority  EWHC 641 (Admin) at paragraphs 74-76. He submitted that, if it did apply, the gravity of the findings against the Appellant were should lead to his interest in making a livelihood by pursuing his chosen career being subordinated to the interest of the public in disciplining errant doctors, even by a national disqualification. He referred to the approval by the Panel of the concession made on behalf of the doctor in the case of Kothari v Tower Hamlets PCT (FHSAA Decision No 10626 dated 2 October 2003) and submitted that we should consider whether the Appellant’s deficiencies relate to either the geographical locality or the precise List on which he might seek to practise.
17. The PCT, relying in particular on five findings in the original decision of the Panel, submitted that the Appellant is generally (ie not only locally) unfit to practise and that national disqualification would be an appropriate and proportionate sanction. These findings were (a) the PCC’s finding of guilt on two serious charges of indecent assault of patients; (b) failure to keep the required register of intimate examinations on three occasions; (c) lack of probity in his submission D1A to the August 2003 PCC hearing; (d) a continuing lack of insight; (e) failure to gain admission to a List before beginning supervised practice in November 2003.
18. Mr Gimlette pointed out that the assaults and the writing of D1A at the least had no local connection with BBW. He submitted that there was no logic in applying the decision in Kothari to cases of poor clinical practice but not to cases of dishonesty and that it was desirable to avoid a multiplicity of unsuccessful applications to other PCTs followed by unsuccessful appeals to this Authority. If circumstances changed so as to make the Appellant suitable for general practice, the Appellant’s remedy was to seek a new order from the FHSAA.
19. The Appellant’s written submissions relied upon the failure of the PCC to erase his name from the Register in August 2002 or to suspend or erase his registration at its March 2004 hearing when it was aware of the refusal of his application for admission to the List. An order for national disqualification now, he submitted, would be inconsistent with the determinations of the PCC when there was no evidence of clinical deficiency, but evidence of a continuing commitment to a career in medicine with no prospect of an alternative professional career.
20. The oral submissions of Ms Lambert, for the Appellant, comprised four elements. The first was that the PCC was in the best position to judge the Appellant’s suitability for general practice and had considered that the assaults, the most serious component of the complaints against him, did not render his performance fundamentally incompatible with the requirements of general practice. She submitted that we should not override this view, particularly since the PCC had had in mind the Indicative Sanctions Guidance of the GMC and had by inference not found any evidence of harmful deep-seated personality or attitudinal problems (or it would not have imposed a mere suspension).
21. She further submitted that there was no knowing (and we should not speculate) what part document D1A played in the outcome of the August 2003 PCC hearing. In relation to the March 2004 hearing the Appellant had himself informed the PCC of the rejection of his application to join the BBW Supplementary List and the PCT failed to take any steps to raise the question of dishonesty before the PCC hearing. In the result the PCC took the view that the Appellant was to be allowed to practise under strict (but enlarged) conditions.
22. The second element was that the freedom, despite a National Disqualification, to practise other than in general practice was illusory and thus that sanction would be disproportionate or unfair and unreasonable at common law (and Ms Lambert expressly disavowed reliance on one legal source of obligation as distinct in substance from the other).
23. Ms Lambert submitted that beginning work without acceptance onto a Supplementary List was not a serious matter, it being common knowledge that such was a regular occurrence in the profession. The breach of the intimate examination register was known to the PCT and remedied by the Appellant. Document D1A must, she submitted, have been of less importance than the assaults; the assaults had not provoked the PCC to erase the Appellant from the Register; it would be unfair and unreasonable or disproportionate to allow lesser matters effectively to finish his career in medicine.
24. The third element was that the Appellant had been deprived of the opportunity for rehabilitation by being barred from working in general practice since December 2003. It was only by evidence of such work that his safety in general practice could have been demonstrated.
25. The fourth element was the possession by the Appellant of high quality clinical skills. This was undisputed by the PCT.
26. Ms Lambert invited us not to follow the approach in Kothari on the basis that that was a case of clinical shortcomings without a parallel proceeding in the GMC and she did not make the concession made by Counsel for Dr Kothari in relation to treating a deficiency that was not locality or List-specific as adequate to justify a national disqualification.
27. Although National Disqualification is defined in section 49N (1) and (2) of the Act, there are no statutory criteria for the making of such an order. Some guidance as to the imposition of the penalty is to be found in section 8 of Delivering Quality in Primary Care: Health Authority (and Primary Care Trust) Management of Primary Care Practitioner’ (sic) Lists, Department of Health May 2002 (although the Guidance is addressed to PCTs rather than to the FHSAA). Paragraph 8.1.2 reads as follows: “Where the facts of the case are serious it would be wrong to allow the doctor to offer his services to every [PCT] in turn in the hope that he will find one willing to accept him”. The third sentence of paragraph 8.1.5, referring to the option for a PCT refusing to admit a doctor to a List to apply to the FHSAA for a national disqualification reads: “Unless the grounds for their decision were essentially local it would be normal to give serious consideration to such an application”.
28. The only decision on the proper approach to the imposition of a national disqualification is to be found in Kothari where the Panel decided: “It was accepted by Mr. Badenoch that if removal from the medical list of Tower Hamlets Primary Care Trust was warranted, there were no logical reasons to justify Dr. Kothari being allowed to practice elsewhere on an NHS list. It seems to us that this concession was rightly made for the deficiencies identified do not relate to geographical locality or, indeed, the precise list upon which Dr.Kothari might seek to exercise practice.”
29. We see no reason in logic why the criteria set out in that case, when added to the Guidance referred to above, should not apply to an unsuitability case. If that were correct, the fact that the elements of this case have no limited connection to BBW would incline us to impose a national disqualification.
30. This is, however, a developing body of law and it is appropriate to deal more fully with Ms Lambert’s specific arguments. The first and most important element in Ms Lambert’s argument appears to us to be fatally flawed by the fact that the PCC had not considered nor made a finding on events subsequent to the assaults. We must not speculate on what any such finding would have been. We must, however, resist the submission that we should not interfere with the judgment of the PCC since their judgment and ours rest on quite different facts. We hope the breadth and trenchancy of our criticisms of the Appellant emerge clearly from the Decision of 14 June 2004.
All the facts supporting those criticisms (apart from the assaults) had not been heard or taken into account by the PCC in any of their three determinations.
31. On the second element the duty of the PCT to act fairly and reasonably (or proportionately, if applicable or different) is common ground. Although we do not underestimate the effect a national disqualification may (and probably will) have on the Appellant’s career, we consider it to be outweighed by the interest of patients generally in being protected from a doctor who, after committing two flagrant and quite unacceptable breaches of his professional obligations, went on cynically to dissemble before the GMC in an attempt to resume his career and to fly in the face of a known obligation to join a List before resuming that career. It may be that the third of these and the breaches of the conditions relating to physical examinations imposed by the Interim Orders Committee of the GMC would not by themselves have justified so extreme a penalty: taken together with the first two, in our view they do.
32. The third element of the argument is clearly true. It is, however, a circular point since the obligation to join a List is statutory and the PCT’s refusal to admit the Appellant to that List was, as we have found, amply justified by the evidence.
33. Again, the fourth element is uncontested. Its relevance is, however, unclear since we rejected the PCT’s refusal to admit the Appellant to the List on the inefficiency ground. We have taken his clinical skill into account in relation to the balancing calculation required by the second element above but do not see it as a free-standing reason not to impose a National Disqualification.
34. In all these circumstances we impose a National Disqualification on the Appellant. We do this without pleasure since so to do will not only visit the most profound disadvantage on him and his family but deprive the public of an apparently skilled doctor in a much needed speciality.
35. Our order is that, pursuant to Section 49N (3) of the National Health Service Act 1977, Dr Azhir Manzur Sarfraz be disqualified from inclusion in all Performers Lists prepared by all Primary Care Trusts.
36. We were invited by the PCT to award the costs of this and the June hearing to be paid by the Appellant. We refuse so to do in the absence of any compelling evidence that any such power so to do is vested in us under the rules governing our procedures.
37. We direct that a copy of this decision be sent to the persons and bodies referred to in Regulation 47 of the Family Health Services Appeal Authority (Procedure) Rules 2001.
38. Any party to these proceedings has the right to appeal this decision under and by virtue of Section 11 of the Tribunals and Inquiries Act 1992.
Mark Mildred – Chair
25 August 2004