IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY
Case No. 11417
MR. ROBIN CHAUDHURI - Chairman
Dr. P. S. GARCHA - Professional Member
MR. M. CANN - Member
DR. G. ACTIS-BARONE
(GMC Registration No. 6090062)
NORTHAMPTONSHIRE AND HEARTLANDS
PRIMARY CARE TRUST
1. This is an appeal pursuant to Section 15 of the National Health Service (Performers Lists) Regulations 2004 (“the Regulations”) against the decision of the Northamptonshire and Headlands Primary Care Trust (the “PCT”) to contingently remove Dr. Actis-Barone from its Performers List on the grounds that his continued inclusion would be prejudicial to the efficiency of the services which those included in the relevant list perform.
2. At the hearing on 8th December 2004 the PCT were represented by Mr. James Reynolds. Dr. Actis-Barone was unrepresented. The Panel heard from Dr. John Mellor, Dr. John Aherne, Mr. Nigel Brooks and Miss Jo Kiely. Dr. Actis-Barone also gave evidence.
In June 2003 the PCT sent Jo Kiely (Associate Director) and an Italian GP to Bologna, Italy to meet potential candidates who could practice as General Practitioners in the PCT’s locality. Three GP’s were invited to attend an assessment weekend in the UK. One of the candidates withdrew and Dr. Actis-Barone (who was already in England) was invited to take his place. The Assessment proved to be successful and Dr. Actis-Barone, together with the two other doctors, were offered employment.
Subsequently the PCT arranged an Induction Programme for the successful candidates. The Induction Programme was specifically for Italian doctors and based on one designed by the NHS London, EU Doctors Induction – The London Deanery and St. Mary’s University of London. An “Induction Pack” was prepared and given to Dr. Actis-Barone. The pack is a comprehensive document which the Panel have had the opportunity to read. The Induction Programme was due to commence on 15th January 2004 and to be completed on 12th March 2004.
It is important to note that the aim of the Induction Programme was not to provide the doctor with comprehensive clinical experience, since it was assumed that Dr. Actis-Barone was a sufficiently experienced General Practitioner.
4. On 24th February 2004 Dr. Actis-Barone was admitted to the PCT’s Supplemental Medical List. The Induction Programme prepared for Dr. Actis-Barone required him to spend time at Weavers Medical Centre with Dr. Aherne, an experienced GP trainer.
Towards the end of the induction period Dr. Aherne expressed concerns about Dr. Actis-Barone’s approach to certain situations which he had been presented with in consultations. It was decided to extend Dr. Actis-Barone’s induction period for at least another month by arranging placements at HMP Wellingborough and the Lakeside Surgery, Corby.
By 11th May 2004 Dr. John Mellor from the Lakeside Surgery, Mr. Nigel Brooks from HMP Wellingborough and Dr. John Aherne from the Weavers Medical Centre had all expressed their concerns (in writing) regarding Dr. Actis-Barone. Those concerns included an apparent lack of confidence in handling simple conditions, clinical knowledge, particularly in areas of prescribing, paediatric medicine and female health, computer skills, communication, time-keeping, punctuality and reliability.
On 20th May 2004 the PCT gave Dr. Actis-Barone notice of their intention to contingently remove him from the PCT Performers List. The conditions they wished to attach were:
“1. Your practice will be restricted to working in a training practice, as designated by the PCT and LNR Deanery;
2. You will undertake no other medical work during this period, without obtaining prior agreement from your trainer and the PCT’S Medical Director.
3. Your progress at the training practice will be reviewed every two months by the PCT’s Practice Concerns Group”.
The National Clinical Assessment Authority had already been informed of the proposed course of action and on 7th June 2004 confirmed that:
“The proposed course of action sounds very sensible”.
5. (i) On 8th June 2004 - the PCT received a letter from Dr. Actis-Barone. In summary, he accepted that he needed support in certain clinical areas and in information technology. He did not accept the criticisms levelled at him from Dr. Mellor, Dr. Aherne and Mr. Brooks.
(ii) 10th June 2004 - Dr. Actis-Barone agreed (in writing) to the imposition of the conditions expressed in the PCT’s letter of 20th May 2004.
(iii) 9th June 2004 - the PCT wrote to Dr. Actis-Barone indicating that they were trying to arrange a “preliminary assessment” for him to identify the areas of training he might need help with. During the course of his evidence Dr. Actis-Barone maintained that he had not received the letter of 9th June 2004 when he sent his letter dated 10th June 2004 to the PCT.
(iv) 9th July 2004 – the PCT wrote to Dr. Actis-Barone outlining the proposed assessment process that he was required to undertake. That assessment process has not been commenced by Dr. Actis-Barone.
(v) 18th August 2004 – the PCT wrote to Dr. Actis-Barone and confirmed that he was to be contingently removed from its Performers List.
(vi) 30th August 2004 – Dr. Actis-Barone wrote to the FHSAA to appeal against the decision of the PCT.
(vii) 26th October 2004 - the PCT wrote to the FHSAA requesting that Dr. Actis-Barone’s appeal be struck out pursuant to S.44(2) of the Family Health Services Appeal Authority (Procedure) Rules 2001 (the “Procedure Rules”).
Before making such a Direction the Panel were obliged to inform Dr. Actis-Barone of the request and to give him an opportunity to express his view. In view of the timescale involved, i.e. some 6 weeks from the PCT’s request to the hearing date, it was the unanimous view of the Panel that the matter should not be struck out.
6. THE LAW
The Panel have considered the following:
(i) The NHS (Performers List) Regulations 2004;
(ii) The FHSAA (Procedure) Rules 2001;
(iii) Department of Health – “Primary Medical Performers Lists”,
Delivering Quality in Primary Care – DOH – August 2004.
7. THE EVIDENCE
The Panel heard from the PCT’s witnesses (as set out in paragraph 2. of this document) and had an opportunity to consider their witness statements.
It was clear from the evidence of Jo Kiely that she had been contacted by practitioners who were concerned with Dr. Actis-Barone’s performance during the induction period.
Dr. Mellor from the Lakeside Surgery confirmed that:
(i) the partners had concerns about Dr. Actis-Barone’s clinical knowledge. For example, it was alleged that he was vague about the appropriate antibiotic to use in respect of a patient with a sore throat;
(ii) a prescription for Amoxicillin was returned because an incorrect dose was given;
(iii) Dr. Actis-Barone was occasionally late and took very frequent cigarette breaks;
(iv) his consultations were very long.
Dr. Aherne from the Weavers Medical Centre confirmed that:
(i) Dr. Actis-Barone lacked adequate computer skills;
(ii) Shared consultations were carried out but the partners had to intervene quite frequently;
(iii) His clinical knowledge in certain areas was inadequate or inappropriate;
(iv) There had been prescribing errors which had to be corrected and re-issued;
(v) He took regular breaks to smoke and use his mobile phone;
(vi) Patients would re-present themselves immediately after the consultations asking to see another doctor that day.
The Panel also heard from Nigel Brooks. The Panel were not particularly impressed with the evidence given by Mr. Brooks. Mr. Brooks stated in his Witness Statement that Dr. Actis-Barone had undertaken a three month placement at HMP Wellingborough from June 2004. That was clearly wrong. He also referred to comments made by various nurses and doctors working at the prison which comprised of hearsay and possibly second and third hand hearsay. The Panel are permitted to consider such hearsay (see Rule 41(6) of the “Procedure Rules”) but have placed little or no weight to his evidence.
Dr. Actis-Barone gave evidence before the Panel. It was quite clear that his expectations of the Induction Programme was quite different from that of the PCT. He acknowledged his deficiencies in areas such as language and information technology, but not in the field of general medicine. During the course of his evidence he stated:
“They (the PCT) didn’t give me what I needed”.
In cross-examination Dr. Actis-Barone:
(i) admitted that he had not read the Induction Pack before commencing the Induction Programme;
(ii) rejected any notion of being assessed;
(iii) maintained that the concerns raised by the practitioners were “misunderstandings”;
(iv) stated that since his contingent removal he had studied books on English medicine and now wanted to work for another PCT;
(v) confirmed that he had not heard of the National Clinical Assessment Authority.
8. THE DECISION
It is the unanimous decision of the Panel that Dr. Actis-Barone’s appeal against the PCT’s decision to contingently remove him from its Performers List be dismissed.
9. THE PANEL’S REASONS
The Panel are in no doubt that Dr. Actis-Barone hoped for a longer period of training during his Induction Programme. If he had read the contents of the Induction Pack Dr. Actis-Barone would have realised that the intention of the Induction Programme was not to provide the practitioner with comprehensive clinical experience. All the witnesses confirmed that it was assumed Dr. Actis-Barone had sufficient general medical practice experience to cope with day to day consultations. It was quite clear from the evidence of Dr. Mellor and Dr. Aherne that this was simply not the case. A good example of this was shown in respect of prescribing errors. Dr. Actis-Barone confirmed that such matters are dealt with quite differently in Italy.
He confirmed owning a copy of the British National Formulary, but it was apparent to the Panel that he had not referred to the text when considering the appropriate dose on at least one occasion. The Panel were also surprised at Dr. Acti-Barone’s refusal to consider an assessment carried out by a senior practitioner at the local Deanery to formulate a Personal Education Plan (PEP). This suggested to the Panel a high degree of inflexibility. The Panel considered the evidence of Dr. Mellor and Dr. Aherne and are satisfied, on a balance of probabilities, that the concerns summarised in paragraph 7 of this document have been established. In the circumstances, the Panel are of the view that the PCT were perfectly entitled to attach the conditions that they did on the grounds of “efficiency”.
10. Under Section 15(3) of the Regulations 2004 the FHSAA may make any decision which the PCT could have made. The Panel agree that the conditions currently imposed by the PCT, and set out in paragraph 4. of this document, should be maintained. However, the Panel are of the view that a fourth condition should be imposed on Dr. Actis-Barone, namely that:
“4. You should undertake an assessment carried out by the LNR Deanery to identify your learning needs”.
The Panel would seek to remind the PCT’s of its obligations to Dr. Actis-Barone under S.15 (4) of the 2004 Regulations.
11. Any party to these proceedings has the right to appeal this decision under and by virtue of S.11 Tribunals and Inquiries Act 1992.
A Notice of Appeal must be filed in the District Registry at an Appeal Centre on the circuit in which the FHSAA is situated within 28 days.
9th December 2004