Mr D L H Styles - Professional Member
Mrs I A Dale - Member
DR VIJAYA KUMAR
(GMC Regn No. 4493064)
DECISION WITH REASONS
This appeal was heard by us today. The Appellant appeared in person. The Respondent was represented by Mr T B Penn, the Head of Family Health Services Support.
The Appellant appeals against the Respondent’s refusal on 17th July 2003 to include him on their Ophthalmic List (the List) as an ophthalmic medical practitioner to provide general ophthalmic services.
In that respect, the Appellant made a written application for inclusion on the List, which is dated 30th July 2002. That application was made pursuant to Regulation 7 of The National Health Service (General Ophthalmic Services) Regulations 1986 (the Regulations). Schedule 1A of the Regulations sets out the information and undertakings, which have to be given by an applicant to join the List. Paragraph 9 of Schedule 1A requires:-
“Names and addresses of two referees who are willing to provide references in respect of two recent posts (which may include any current post) as an ophthalmic medical practitioner or optician, which lasted for at least three months without a significant break, and where this is not possible, a full explanation and alternative referees.”
The Appellant in fact provided references from five sources:- (i) Mr K Privanachandra, a Consultant Ophthalmologist, dated 19th October 2002, (ii) Mr C Sng, a Consultant Ophthalmologist, dated 9th October 2002, (iii) Mr S Madhusudhan, a Consultant Ophthalmic Surgeon, dated 10th February 2003, (iv) Miss S D Heyes, an Optometrist, dated 3rd December 2002, and Mr A Sanders, a Technical/Professional Services Manager, dated 17th February 2003.
However, having considered those references, the Respondent was not satisfied with them. Consequently, the Respondent refused the Appellant’s application for inclusion on the List on the ground set out in Regulation 7A(1)(c) of the Regulations, namely
“that having contacted the referees nominated by the ophthalmic medical practitioner or optician in accordance with paragraph 9 of Schedule 1A, the Health Authority is not satisfied with the references given.”
Consequently, the Appellant now appeals against that refusal.
In addition to considering the documentary evidence served by the parties, we heard evidence today from the Appellant himself and from his witness, Mr S Madhusudhan, one of his referees. We also heard evidence from Mr Bob Wilkes, the Respondent’s Optical Adviser.
The Respondent agreed that the Appellant was a well qualified and experienced professional. The Respondent also agreed that the only aspect of the Appellant’s references, which now concerned them, was the observations made by Miss S D Heyes in her reference of 3rd December 2002 about his “Record Keeping”. In that respect, Miss Heyes had marked the Appellant’s “Record Keeping” as “Below Average” and had observed that it was a “Development Need.” She had also added:- “I have no doubt about the content of Dr Kumar’s eye examinations, however feel that not everything done is always recorded.”
The Appellant had obtained a further letter from Miss Heyes, written in her married name of Williams. It is dated 10th November 2003 and was not before the Respondent when they refused his application to be included on the List. In it, Mrs Williams states:-
“I have been asked to clarify some points raised. I rated record keeping below average purely from an optometric point of view. As Optometrists we are required to record extensive details regarding ophthalmoscopy and slit lamp findings. I felt that Dr Kumars records lacked such detail, however in view of him being a registered ophthalmologist I would presume his records would be the same as those found in any hospital situation.
Dr Kumars records always detail any relevant history and symptoms and subjective findings are always clearly stated. I have never come across any form of difficulty when working with his records, obviously ophthalmologists have slightly different ways of recording findings.
I have no doubt that Dr Kumar would be a worthy candidate for inclusion on to the ophthalmic list.”
The Appellant did not agree that his record keeping was deficient in any way. Furthermore, he contended that this further letter from Mrs Williams ought to allay any concerns, which the Respondent still had about his record keeping. The Respondent, however, had interpreted Mrs Williams letter as suggesting that, although the Appellant’s record keeping met the standards of an ophthalmologist, it lacked the detail required from an optometrist.
In his evidence, Mr Wilkes, the Respondent’s Optical Adviser, conceded that there were no written guidelines available on standards of record keeping and that he believed that there ought to be. Mr Wilkes was also of the opinion that it would simply take “ a few hours of discussion” between himself and the Appellant “with some written back up” to put to rest any concerns that the Respondent had about the Appellant’s record keeping.
It was clear to the Panel, therefore, that the parties were not far apart and, at the conclusion of the evidence, Mr Penn was asked by the Panel to consider whether there was an acceptable way forward. After due consideration, Mr Penn suggested that a conditional inclusion to the List may well be acceptable to the Respondent.
In these circumstances, and with the consent of the Appellant and the Respondent, the Panel concluded that the Appellant’s appeal should be allowed and that he be included on the Respondent’s List subject to the following conditions:-
(i) that the Appellant and Mr Bob Wilkes work together to draw up a Protocol with regard to record keeping for use by ophthalmic medical practitioners working in the general ophthalmic service; and
(ii) that the Appellant’s inclusion in the List be reviewed by the Respondent 6 months from the date hereof, when evidence of his actual record keeping will be available to them, and that Mr Wilkes be entitled to carry out checks of the Appellant’s record keeping during that 6 month period.
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 27th day of November 2003
C Barker - Chairman
Dr D L H Styles
Mrs I Dale