Mr C Barker - Chairman
Dr S Ariyanayagam - Professional Member
Mr R D W Rhodes - Member
DR KAILASH P SAXENA
(GMC No. 1206601)
CENTRAL LIVERPOOL PRIMARY CARE TRUST
This appeal was listed before us today.
The Appellant (Dr Saxena) appeals against the Respondent’s (PCT) refusal to include his name in their Performers List (List). Both the PCT and Dr Saxena have agreed that the Panel may determine the appeal without an oral hearing and we have, therefore, dealt with the matter today on the basis of the documentary evidence submitted by each of the parties.
On 2 August 2004, the PCT refused Dr Saxena’s application for the inclusion of his name in their List. The ground on which the PCT refused the application is that set out in Regulation 6(1)(b) of The National Health Service (Performers List) Regulations 2004 (the Regulations), namely that “having contacted the referees provided by him under regulation 4(2)(f), it is not satisfied with the references.” The PCT’s reasons for reaching this conclusion are set out in their letter to Dr Saxena dated 6 August 2004 and in their Formal Response, filed for the purposes of this appeal (pages 18 to 28 of the evidence bundle).
By letter dated 19 August 2004, Dr Saxena appeals against the PCT’s removal and his grounds for doing so are set out in that letter and in the enclosures thereto (pages 1 to 15 of the evidence bundle) and in his letter of 13 October 2004 and the enclosures thereto (pages 30 to 38 of the evidence bundle).
In effect, Dr Saxena appeals on two grounds, namely
(a) that the PCT refused his application on the ground in 6(1)(b) of the Regulations ie “having contacted the referees provided by him……” However, the PCT did not contact any of his referees; and
(b) the PCT’s conclusion that they were not satisfied with his references was a wrong and unjustified conclusion and that the Panel should consider all his references, his qualifications, and his experience as set out in his CV, including his early experience in primary care.
Regulation 4 of the Regulations sets out the information, which must be included in the performer’s written application to be included in the List. Part of this information is that required by Regulation 4(2)(f) ie “names and addresses of two referees, who are willing to provide clinical references relating to two recent posts (which may include any current post) as a performer which lasted at least three months without a significant break, and, where this is not possible, a full explanation and the names and addresses of alternative referees.”
Regulation 4(2)(f) clearly anticipates that the performer will simply provide the names and addresses of two referees and that the PCT will then make written contact with the referees, requesting a reference. This ensures that the references actually provided are not simply open testimonials but an assessment by the referees of a person’s knowledge, skills and abilities in respect of the specific requirements of the post for which he has applied. However, in this case, Dr Saxena actually obtained the references himself, which he then submitted to the PCT. Consequently, there was no need for the PCT to contact the referees for their references, as they had already been provided by Dr Saxena.
Furthermore, the Panel is satisfied that Dr Saxena has not been prejudiced by the PCT not contacting his referees. As we have observed above, there was no need for them to do so because Dr Saxena himself obtained the references and submitted them in support of his application. In doing so, Dr Saxena must have been satisfied with their contents. Moreover, after his telephone discussion with Dr C Tierney, the PCT’s Medical Adviser, on 30 June 2004, Dr Saxena was clearly made aware of the PCT’s requirements with regard to references (if he was not already aware of them) and he had the opportunity at that stage of submitting any further references to the PCT in support of his application. The Panel is satisfied, therefore, that Dr Saxena had every opportunity of satisfying the PCT’s requirements in respect of the necessary references.
For these reasons, therefore, we refuse Dr Saxena’s appeal on this first ground.
With his initial application for inclusion, Dr Saxena submitted references from Dr Shehab Zaki (page 10), Dr Y D Sharma (page 11) and Dr Syed S Jaffri (page 15). These were considered by Dr Tierney, who concluded that these three references did not relate “to the full range of responsibilities of a primary care performer, that is, with respect to the knowledge, skills and attitudes in the general practice context of consultation, prescribing, administration, referral etc.” We are of the opinion that, in view of the fact that Dr Saxena’s work on the PCT’s List would be in primary health care, the PCT were justified in looking for a full and proper assessment of Dr Saxena’s skills and experience in primary care.
In our opinion, although the references from Dr Jaki, Dr Sharma and Dr Jaffri demonstrate how Dr Saxena is regarded by them in respect of his present work at The Mohawk Correctional Facility (1999 to present) and in his previous work at The Gowander Psychiatric Center (1982 to 1991), these are not by any means a detailed assessment of Dr Saxena in respect of the wide range of knowledge and skills, which he will need to demonstrate in primary health care.
On 30 June 2004, Dr Tierney spoke to Dr Saxena by telephone and explained to him that the PCT required references, which related to “his work in primary care (general practice).” As a result of this, Dr Saxena then submitted references from Mrs Robin Nacca (page 12), Joseph R Takats (page13) and Leonora A Corbetta (page 14). However, Dr Tierney concluded that these references were not “recent within the meaning of 4(2)(f).”
The Panel notes that neither Mrs Nacca nor Leonora Corbetta appear to be medically qualified. In that respect, Mrs Nacca is The Business CEO at The Caro Medical Center and Ms Corbetta is the Office Manager at The Elmwood Health Center. The Panel also notes that, although these three references relate to Dr Saxena’s work in primary care, they are neither detailed nor are they recent. In that respect, Mrs Nacca’s reference relates to Dr Saxena’s work some 6 to 7 years ago and those from Joseph R Takats and Ms Corbetta relate to his work some 8 to 10 years ago.
In these circumstances, the Panel also finds that these three references are not “clinical references relating to two recent posts” for the purposes of Regulation 4(2)(f).
In all the circumstances, therefore, and taking into consideration all six references, the PCT “were not satisfied that the references supplied by Dr Saxena gave them the necessary assurance as to his skills and experience in primary care” (the PCT’s Statement of Case). Consequently, they concluded that they were “not satisfied with the references” under Regulation 6(1)(b) of the Regulations.
Whilst recognising Dr Saxena’s skills and experience in his other areas of work, the Panel finds that the PCT were justified in concluding that they were “not satisfied with the references.” In these circumstances, we refuse Dr Saxena’s appeal against the PCT’s refusal to include him in their List.
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 29th day of November 2004
C Barker - Chairman