PRIMARY CARE TRUST UNDER SECTION 49N OF
THE NATIONAL HEALTH SERVICE ACT 1977
AND IN THE MATTER OF TIMOTHY JOHN HEALY
Barnet Primary Care Trust (“the PCT”) applied by a letter dated 12 November 2002 to the Family Health Services Appeal Authority (“FHSAA”) for an Order for National Disqualification against Timothy John Healy (“the Respondent”). The application was made under Part III of the Family Health Appeal Authority (Procedure) Rules 2001 (“the Rules”).
By an Order dated 15 January 2003 under Rule 31 the President of the FHSAA appointed a panel (“the Panel”) to hear the application comprising Professor M Mildred (Chair), Dr. GK Sharma (Professional Member) and Mrs. LE Jacobs (Lay Member). All members of the Panel confirmed before the beginning of the hearing that they had no conflict of interest in hearing the application.
The Respondent was for many years a general medical practitioner in Finchley registered by the General Medical Council under Number 1526374. In February 2001 allegations were made against him and he was arrested on 8 May 2001 at which time a very large number of videotapes was recovered from his surgery and from his home address (where he also saw patients). In March 2002 he was re-arrested and on 2 August 2002 pleaded guilty at Southwark Crown Court to 30 offences.
These were: 15 counts of indecent assault (10 on adults and 5 on children under 16, all male); 6 counts of administering a stupefying drug with intent to commit indecent assault (5 in relation to adults and 1 to a child under 16, all male); 4 counts of making an indecent photograph (all in relation to males under 16); 5 counts of possessing indecent photographs (all in relation to males under 16).
He was sentenced to 12 years imprisonment. On 20 September 2002 North Central London Health Authority, the predecessors of the PCT, informed him that he had been removed from the List with effect from that date. The Authority was compelled to take this course by Regulation 7C(1)(b) of the General Medical Services Regulations which provides for removal of a doctor from the List on sentence to imprisonment for a term greater than six months.
The General Medical Council made an interim suspension order against the Respondent in June 2001 and on 28 November 2002 erased the Respondent’s name from the Medical Register with immediate effect.
On 12 November 2002 (within the time limit of three months from the removal of the Respondent from the List) the PCT applied by letter to the FHSAA for an order disqualifying the Respondent from inclusion from any medical, supplementary or services list held by any PCT or Health Authority falling within the jurisdiction of the FHSAA. The PCT had taken over management of the Medical List concerned from North Central London Health Authority on 1 October 2002.
The Jurisdiction of the Panel.
The application referred to in the last paragraph seeks exercise by the Panel of the power contained in National Health Service Act 1977 section 49N (1) (created by Health and Social Care Act 2001 section 25). The exercise of this power is known (by section 49 (2) of the 2001 Act) as a national disqualification.
The first three sub-sections of section 49N give the FHSAA powers to impose a national disqualification on a “practitioner” on removing him or her from a List or dismissing an appeal against refusal to include him or her in such a List. These powers do not apply to this case. In any event the Respondent is not, having regard to his erasure from the Medical Register, today a “practitioner”. In Schedule 1 to the Interpretation Act 1978 a “registered medical practitioner” is defined to mean a “fully registered person within the meaning of the Medical Act 1983”. This is a definition which the Respondent has clearly since his erasure from the Register on 28 November 2002 been unable to satisfy.
A Health Authority (or now a PCT) may, however, make an application under section 49N (4) for a national disqualification to be imposed on a person whom it has removed (as in this case) from one its Lists. The use by the draftsman of the word “person” rather than “practitioner” in this sub-section seems apt to include a person who has been erased from the Register by the date of the making or hearing of an application for national disqualification. Were it otherwise, an application for a national disqualification made before erasure of the practitioner from the Register would have to be dismissed, if erasure had taken place the day before the hearing of the application. On the other hand, an order for national disqualification would remain in effect, if the erasure were made the day after the disqualification. This cannot have been the intention of Parliament and we conclude we have jurisdiction to hear the application and, if satisfied, make an order for national disqualification of the Respondent.
It may be objected that a national disqualification of a person erased from the Medical Register is redundant. The FHSAA, however, is confined to the exercise of the duties and powers given to it by statute and it is not for it to speculate whether, when and in what circumstances someone such as the Respondent might be re-registered. Professional registration and the exercise of the powers of the FHSAA are and must be kept distinct.
An oral hearing took place at the Royal Free Hospital on 17 February 2003. The PCT was represented by Dr Andrew Burnett, Medical Director, and Ms Deborah Shearly, Head of Practitioner Performance.
The Respondent did not appear and was not represented. His solicitors, Messrs. Henry Milner & Company, wrote to the FHSAA on his behalf on 24 January 2003.
They confirmed as follows:
“1. The Respondent has received notice of the application for National
2. He will not resist any order which is to be made by the FHSAA. He will accept any order of the FHSAA. He will not attend the Application for National Disqualification. And neither will he instruct any other persons to attend on his behalf.
3. He wishes no representations other than those above to be made to the FHSAA.”
The “representations” referred to in paragraph 3 were as follows: (a) that 5 of the 6 to whom stupefying drug had been administered were adults, not children; (b) the offences referred to were of making (not taking) indecent photographs; and (c) although many of the press releases following the Respondent’s conviction were incorrect and factually inaccurate it was conceded that many of the victims in relation to the allegations of indecent assault and administering a stupefying drug were patients of the Respondent’s practice.
The first two representations took up what were contended to be inaccuracies in the application letter from the PCT dated 12 November 2002. We have for the purpose of the application assumed that what is said on behalf of the Respondent is correct.
Whilst the Respondent does not resist the order sought, he does not consent to it and it is for the PCT to establish that the order should be made.
The PCT submitted that (a) the crimes committed were of the most serious nature, involved the worst possible breach of trust and had been committed over a long period; (b) thus the Respondent should never be able to practice in any clinical context again; (c) the Respondent might at some stage be reinstated on the Medical Register; (d) he might equally seek to work otherwise as a doctor in a position in which he had access to stupefying drugs and/or to patients and (e) it was vital that steps were taken to preclude the Respondent’s professional employment in the NHS as a whole. Since any application could not in the circumstances be made for some years, it was important that the details of the case were not lost in the mists of time.
The submissions of the PCT are accepted. It would be hard to imagine a worse breach of the trust placed in the Respondent as a doctor. The Respondent shall be disqualified from inclusion in all lists referred to in section 49F(1)(a) to (e) of the National Health Service Act 1977 prepared by all Primary Care Trusts, all supplementary lists prepared by all Primary Care Trusts and all other lists referred to in section 49N(1)(c) of the National Health Service Act 1977.
The Panel is of the opinion that the criminal and professional conduct of the Respondent is such that there is no realistic prospect of a successful review of this national disqualification within two years. Accordingly the Respondent may not request a review of this decision under section 49N(7) of the National Health Service Act 1977 before five years have elapsed from this disqualification.
MARK MILDRED – CHAIRMAN
17 February 2003