Mr C Barker - Chairman
Dr S Ariyanayagam - Professional Member
Mr R D W Rhodes - Member
DR THAKUR SUKDEO SINGH
(GMC No. 1030394)
For ease of reference, we will refer throughout this Decision to the Applicant as the PCT and to the Respondent as Dr Singh.
The PCT’s application, heard by us today, is that, having removed Dr Singh from their Performers List, they now apply to The Family Health Services Appeal Authority (FHSAA) for a national disqualification to be imposed on him under Section 49N(4)(a) of The National Health Service Act 1977, which Section was introduced by Section 25 of The Health and Social Care Act 2001.
Neither the PCT nor their solicitor attended today’s hearing. However, the Panel have received written submissions from them. Dr Singh did not attend in person today but he was represented by his solicitor, Ms Kate Williams, of RadcliffesLeBrasseur, solicitors of Leeds. Ms Williams had also made written submissions to the Panel.
Dr Singh was included in the PCT’s Supplementary List (now the Performers List) on 1 August 2002. However, as a result of concerns about his performance, the PCT reported the circumstances to the General Medical Council (GMC) by letter dated 5 February 2003. Furthermore, on 30 April 2003, the PCT suspended Dr Singh from their Supplementary List for a period of 6 months. On the PCT’s application and with Dr Singh’s consent, that suspension was, however, varied and extended by a Panel of the FHSAA, chaired by myself, on 30 January 2004. On that day, the Panel ordered that Dr Singh’s suspension should continue until the expiration of 2 calendar months from the date on which the GMC announces its final decision with regard to Dr Singh following his performance assessment by the GMC.
The Chairman of the GMC’s Committee on Professional Performance announced its decision on 23 June 2004, when it suspended Dr Singh’s registration for a period of 12 months to take effect immediately. The Chairman also announced that, shortly before the end of the 12 month period, the Committee would resume their consideration of Dr Singh’s case. The PCT were informed of this decision by e-mail on 30 June 2004 and by letter of 24 August 2004. Consequently, as a result of this decision, Dr Singh remained suspended from the PCT’s Performers List until 23 August 2004 ie 2 calendar months from 23 June 2004.
As a result of the GMC’s decision, the PCT then removed Dr Singh from their Performers List by letter dated 24 August 2004. The PCT’s letter made it clear that they removed him under Regulation 26(1)(c) of The National Health Service (Performers Lists) Regulations 2004 (the 2004 Regulations).
Furthermore, the PCT’s letter of 24 August 2004 also made it clear that the PCT intended to apply to the FHSAA for Dr Singh to be nationally disqualified.
Consequently, by a separate letter dated 24 August 2004, the PCT now make application for Dr Singh to be nationally disqualified under Section 49N(4)(a) of The National Health Service Act 1977, as introduced by Section 25 of The Health and Social Care Act 2001.
Section 49N(4)(a) provides as follows:
“The Health Authority may apply to the FHSAA for a national disqualification to be imposed on a person after they have-
(a) removed him from a list of theirs of any of the kinds referred to in subsection (1)(a) to (c).”
The parties accept, as is the case, that the Performers List is now one of the lists referred to in this Section and it follows from the Section that a pre-requisite for today’s application for national disqualification is that the Panel must be satisfied that the PCT have removed Dr Singh from their List.
The PCT’s case.
As we have observed above, neither the PCT nor their solicitor have appeared before us today. Attendance and representation are obviously matters for them but their absence does surprise us in view of the fact that the PCT actually make this application and know that it is opposed by Dr Singh. However, we have received written representations from the PCT’s solicitor, Philippa Richler-Potts, of Beachcroft Wansbroughs, solicitors of Leeds. In summary, the PCT’s case is as follows:
(a) in view of the outcome of Dr Singh’s performance assessment by the GMC, the PCT decided to remove him from their List:
(b) their ground for removal was under Regulation 26(1)(c) of the 2004 Regulations:
(c) this Regulation came into force on 7 July 2004;
(d) the PCT’s removal of Dr Singh on 24 August was lawful;
(e) Regulation 26(1)(c) is a mandatory ground for removal, against which there is no appeal by Dr Singh except by way of judicial review in the High Court;
(f) the PCT are, thus, entitled to make this application for a national disqualification; and
(g) if the Panel concludes that the PCT “erred” in removing Dr Singh under Regulation 26(1)(c), it is nevertheless within the Panel’s powers today to remove Dr Singh on the ground of his unsuitability pursuant to Regulation 10(4)(c) of the 2004 Regulations.
Ms Williams on behalf of Dr Singh contends as follows:
(a) the PCT’s application for a national disqualification is dependent on there having been a prior removal of Dr Singh;
(b) any such removal must be a lawful removal;
(c) the removal was specifically made under Regulation 26(1)(c) of the 2004 Regulations;
(d) Regulation 26(1)(c) was not brought into force until 1 November 2004 and the GMC’s suspension of Dr Singh on 23 June 2004, imposed by their Committee on Professional Performance, could not have been a suspension by a Fitness to Practice Panel under Sections 35D or 38;
(e) even if the Regulation came into force on 7July 2004, as contended by the PCT, the GMC’s decision was announced before that date;
(f) thus, as Regulation 26(1)(c) was not in force, the PCT’s removal of Dr Singh under that Regulation was ultra vires and unlawful;
(g) Dr Singh has not, therefore, been removed and the PCT are, thus, now precluded from applying for a national disqualification; and
(h) the Panel has no power to remove Dr Singh today on the ground of his unsuitability under Regulation 10(4)(c) because this would mean that Dr Singh had been denied the rights to which he is clearly entitled under Regulations 10(8), 10(9), 10(10), 10(11) and 11 of the 2004 Regulations.
Under the 2004 Regulations, a PCT must remove a practitioner from their List on certain grounds (the mandatory grounds) and may remove him on other grounds (the discretionary grounds). The mandatory grounds are set out in Regulations 10(1) and 26(1). Regulation 26(1)(c), ie the ground of removal used by the PCT, provides as follows:
“Subject to paragraph (2) and in addition to the grounds in regulation 10(1), the Primary Care Trust must remove a medical practitioner from its medical performers list where it becomes aware that he is-
(c) following the coming into force of article13 of the 2002 Order, the subject of a direction by a Fitness to Practice Panel for erasure or immediate suspension under section 35D(2)(a) or (b), (5)(a) or (b), (10)(a) or (b, or (12)(a) or (b) (functions of a Fitness to Practice Panel), or section 38(1) (power to order immediate suspension etc) of that Act.”
“The Medical Act” is a reference to the Medical Act 1983; “the 2002 Order” means The Medical Act 1983 (Amendment) Order 2002; and the footnote to Regulation 26(1)(c) states that “Sections 35D and 38 are inserted by article 13 of the 2002 Order, with effect from such date as the Secretary of State may specify.”
Article 13 of the Order introduces a number of Sections into The Medical Act 1983. These Sections give certain powers to the GMC and set out the functions and powers of its Investigative Committee and Fitness to Practice Panel.
It follows, therefore, that the PCT contend that the suspension of Dr Singh by the GMC’s Performance Committee on 23 June 2004 was a suspension of him by a Fitness to Practice Panel under section 35D and Section 38(1).
Thus, the issue before us is when did Article 13 of the 2002 Order come into force so far as it relates to Sections 35D and 38(1)?
The actual commencement provisions of the 2002 Order are set out in Regulation 1(2) and (3) of the Order. Regulation 1(1) provides that certain Articles in the Order (Article 13 is not one of them) shall come into force on the making of the Order on17 December 2002 but that the other provisions (which include Article 13) “shall come into force on such days as the Secretary of State may specify.”
Article 1(3) provides that “Different days may be specified under paragraph (2) for different purposes and any day so specified shall be caused to be notified in the London, Edinburgh and Belfast Gazettes published not later than one week before that date.”
Three such notices have appeared in the London Gazette. The first was on 23 May 2003, in which the Department of Health gave notice that the Secretary of State had specified 30 May 2003 for the coming into force of a particular Article in the Order (not Article 13); the second was on 25 June 2004, in which the Department of Health gave notice that the Secretary of State had specified 7 July 2004 for the coming into force of a number of Articles in the Order. This notice did announce that Article 13 was being brought into force on 7 July 2004 so far as it related to certain Sections of The Medical Act. However, Sections 35D and 38 were not amongst them; and the third was on 8 October 2004, in which the Department of Health gave notice that the Secretary of State had specified 1 November 2004 as the day for the coming into force (inter alia) of Article 13 so far as it relates to Sections 35D and 38.
In these circumstances, the Panel accepts Ms Williams’ submissions and we, therefore, find as follows:
(a) that, for the purposes of Regulation 26(1)(c) of the 2004 Regulations, Article 13 of the 2002 Order only came into force on 1 November 2004;
(b) that, when the GMC’s Committee on Professional Performance suspended Dr Singh on 23 June 2004, that was not a suspension imposed by a Fitness to Practice Panel under Sections 35D or 38(1);
(c) that, when the PCT purported to remove Dr Singh from their List on 24 August 2004 on the ground in Regulation 26(1)(c), that ground was not available to them and, thus, the PCT acted ultra vires and unlawfully;
(d) that, in these circumstances, Dr Singh was not removed by the PCT; and
(e) that, not having removed him from their List, the PCT are precluded from applying for a national disqualification under Section 49N(4)(a).
In view of these findings, the Panel refuse the PCT’s application for a national disqualification of Dr Singh.
May we now deal with the PCT’s further contention that, if the Panel concludes that the PCT “erred” in removing Dr Singh under Regulation 26(1)(c), it is nevertheless within the Panel’s power today to remove him on the ground of unsuitability pursuant to Regulation 10(4)(c) of the 2004 Regulations. This course of action is urged upon us by the PCT’s solicitor, Ms Philippa Richler-Potts, in paragraph 22 of her written representations.
With respect, the Panel disagree with that contention. Regulation 15 of the 2004 Regulations enables a performer to appeal against a PCT’s decision to remove him on any of the discretionary grounds available to them. The Regulation also provides that any such appeal shall be by way of re-determination and that, on the appeal, the Panel may make any decision which the PCT could have made. This Regulation, however, applies to appeals against a removal on discretionary grounds. Although it has been necessary for us to consider the validity of a mandatory removal, the application before us is for a national disqualification and not an appeal against a discretionary disqualification.
Furthermore, as Ms Williams has rightly contended before us, before the PCT can remove a performer on the ground of his unsuitability under Regulation 10(4)(c) of the 2004 Regulations, they must give him notice of any allegation against him, notice of what action they are considering and on what grounds, the opportunity to make written representations and the opportunity to put his case before an oral hearing before the PCT (Regulation 10(8)). None of these steps were taken by the PCT because they removed Dr Singh on what they believed was a mandatory ground available to them.
Furthermore, Regulation 11 provides that, when the PCT is considering removal on the ground of unsuitability, then it must consider specific criteria as set out in the Regulation. Again, there is no evidence before us that the PCT did in fact consider these criteria.
In these circumstances, we agree with Ms Williams that, if we were to consider removing Dr Singh today on the ground of his unsuitability, we would be denying Dr Singh his rights under Regulations 10 and 11 of the 2004 Regulations.
For these reasons, therefore, we also find that it is not within our powers to re-determine the PCT’s removal of Dr Singh and now consider removing him on the ground of his unsuitability.
Finally, in accordance with Rule 42(5) of The Family Health Services Appeal Authority (Procedure) Rules 2001, we hereby notify the parties that they may have rights relating to appeals under Section 11 of The Tribunals and Inquiries Act 1992.
Dated this 29 day of November 2004
C Barker - Chairman