THE FAMILY HEALTH SERVICES APPEAL AUTHORITY
ORAL HEARING ON 14TH OCTOBER 2003
Mr. D. Pratt (Chairman)
Dr. H.M. Freeman (Professional Member)
Mrs. M.A. Harley (Member)
DR. ANI RANSOME ESSIEN
(GMC No. 4174062)
GREENWICH PRIMARY CARE TRUST
The decision of the panel is to allow this appeal.
1. Prior to the hearing all three panel members had signed a declaration confirming that they had no prior interest or involvement in the appeal which would preclude them from considering the appeal in an independent and impartial manner.
2. The Appellant (“Dr. Essien”) was represented by Mr. F. Ogumbiyi, barrister, and the Respondent Primary Care Trust (“Greenwich”) was represented by Mr. J. Reynolds, solicitor, of Capsticks.
3. We heard oral evidence from the following:
a. On behalf of the Appellant:
Dr. Essien himself
b. On behalf of the Respondent:
i. Mr. Peter Greenwood, who is now Secretary to the Essex Performance Advisory Group and also holds a post with Chelmsford PCT, but at the time of the events with which we are concerned, was Corporate Services Manager of Essex Strategic Health Authority;
ii. Mr. Jeremy Burden, Director of Primary Health Care for Greenwich PCT.
Both these witnesses also put in witness statements, in the case of Mr. Greenwood accompanied by 63 pages of exhibits.
4. We also had the following documentary evidence:
a. A hearing bundle prepared by the FHSAA consisting of:
i. Dr. Essien’s notice of appeal and bundle of documents in support [“A”] numbered 1-23;
ii. Greenwich’s statement of grounds in response and bundle of documents in support [“R1”] numbered 1-123;
b. We agreed to receive written evidence on behalf of Dr. Essien, by way of letters of support from the following patients and others:
Mr. Shiyani (letter dated 28 September 2003);
Ms. Hooper (letter dated 2 October 2003);
Mr. Sayers (letter undated );
and in addition a copy of a letter written to the General Medical Council on 24 August 2003 by a Dr. Ogunsanya on behalf of Dr. Essien.
c. We also received the following documents from the Respondent at the hearing:
i. A bundle [“R2”] containing statements from Mr. Greenwood and Mr. Burden, referred to above, and
ii. A further bundle [“R3”] containing a statement, dated 10 October 2003, from a Dr. Richard Grew, who had taken part in an interview of Dr. Essien along with Mr. Greenwood, and 9 pages of further documents.
5. The National Health Service (General Medical Services) Regulations 1992 (“the Regulations”) provide:
a. By Regulation 18 (A) (3) that a doctor applying for admission to the Medical List must provide the undertakings set out in Part III of Schedule 3 of the Regulations (“the Schedule”);
b. By paragraph 6 (A) (a) of the Schedule the doctor must provide information including:
i. By sub-paragraph (vii) whether he is currently subject to investigation into his professional conduct by any licensing, regulatory or other body anywhere in the world; and
ii. By sub-paragraph (ix), whether he is subject to investigation by another health authority or equivalent body, which might lead to his removal from any of that health authority’s lists or equivalent lists.
c. By paragraph 25 the doctor is required to notify [the Primary Care Trust] within 7 days of any material change to the information provided until the application is finally determined.
6. Regulation 18 (EE) provides grounds on which [the PCT] may refuse to approve or nominate a doctor, including by paragraph (1) (a) that [the PCT] having considered the declaration required by paragraph 6A of Part III of Schedule 3 and any other information in its possession in relation to the application, considers he is unsuitable to be included in the list.
7. By Regulation 18 (EE) (3), where [the PCT] is considering refusal of a doctor under paragraph (1), it shall consider all facts which appear to it to be relevant and shall in particular take into consideration a number of factors (there listed) relating to the nature of offences, investigations or incidents, how recent they may be, what penalties or actions were imposed, whether the doctor has ever been refused or removed from a list, and so on.
8. Schedule 2 of the Regulations contains the terms of service for GP’s and Greenwich relies on paragraph 51, by which any provision of the 1992 Regulations which affects the rights and obligations of doctors shall be deemed to form part of the terms of service.
9. The nub of the appeal concerns whether we agree that Greenwich was correct to determine that Dr. Essien failed to provide full and proper information under those regulations by failing to disclose either or both of an investigation by the General Medical Council (GMC) or by Southend PCT, and that he was on that account unsuitable to be admitted to its medical list. Both these investigations arose from his having issued a single prescription for Xenical, a drug which aids slimming, to a person who was not a patient but was a social acquaintance.
10. Dr. Essien appeals by a notice dated 10 July 2003 [A1-3] which we can summarise, necessarily with some degree of paraphrase of a longer document. It asserts:
i. Error of law in that he was not under any relevant investigation at the date he submitted his first application, so that Regulation 6A (see above) did not bite, and when it subsequently arose, it was resolved by Southend PCT in his favour before he re-applied to Greenwich;
ii. There was a breach of natural justice by Greenwich in taking into account a report prepared by Mr. Greenwood which included an assertion allegedly made in interview that he was, at that time, a principal on the medical list of Greenwich, without giving him a sufficient opportunity to offer his own account or to rebut the assertion;
iii. It was in the public interest for him to practise as a GP in the intended area.
11. The Respondent’s Statement of Grounds for opposing the appeal are summarised in the second paragraph of that document:
a. “Dr. Essien failed to provide a full and proper declaration pursuant to paragraph 6(A) of Part III of Schedule 3 of [the Regulations] in respect of his application for inclusion in the PCT’s medical list;
b. he had previously failed to make a proper declaration in respect of an earlier application to join the PCT’s medical list;
c. as evidenced by a letter dated 27th November 2002 to Mr. Peter Greenwood, Dr Essien informed Mr. Greenwood and Dr. Grew that he was a principal on the medical list of Greenwich PCT, when this was not the case;
d. that Dr. Essien failed to refer to a previous investigation carried out by the Essex Strategic Health Authority which had made a recommendation that Dr. Essien should be suspended pending further investigation.
and that in the circumstances the Trust did not consider that it would be suitable to admit Dr. Essien to its medical list.”
The Statement of Grounds goes on to rebut the three bases on which Dr Essien puts his appeal, as summarised in the previous paragraph.
Facts and history
12. We find the following facts.
13. Dr. Essien is a registered medical practitioner who was in 2002 practising as a GP within the National Health Service by virtue of being on the Supplementary List maintained by Southend Primary Care Trust. He worked sessions as a deputising locum through a deputising agency called Healthcall, later called Primecare.
14. By a document [R1/1] dated 9 September 2002 Dr. Essien made an application (“the first application”) to be admitted to the Medical List maintained by Greenwich. It was an application for a particular practice vacancy as a partner in the Plumstead Health Centre. The application did not reveal that he was subject to any investigation or any other matter covered by the requirements. Nor is it suggested he should, because it is common ground that at that date there was no investigation or other matter which he should declare.
15. We observe that the declaration in the application form which Dr. Essien was asked to complete made no reference to these requirements [R1/4]. The declaration Dr. Essien was required to sign was in a limited form which may have been appropriate before the 1992 Regulations came into force on 1 April 1992, but was inappropriate and potentially misleading to the applicant after that date. It is unfortunate that a regulatory requirement to which Greenwich attached such importance in the conduct of this appeal, cross examining Dr. Essien at some length to suggest that he was or should be fully aware of it, was something which was not reflected in the application form issued to Dr Essien by Greenwich.
16. On 7 October 2002 Healthcall (the doctors deputising service which employed Dr. Essien) raised a concern by email [A1/4] about a prescription issued by Dr Essien for the drug Xenical (a slimming aid). They could find no trace of the patient for whom it was said to have been issued. On the same day Dr Essien sent a written explanation to Healthcall [R1/15]. The explanation was to the effect that a patient whom he had seen at a night surgery had been accompanied by a woman who raised her own health problem, namely depression about obesity. Dr Essien said he had advised her to speak to her own GP about Xenical, and when she explained she had difficulty seeing him, he issued the prescription to her on compassionate grounds, forgetting that she needed to be registered with him. He apologised for doing so and offered to make amends for any unnecessary costs incurred. This explanation was untrue, as he later admitted. The true explanation was that he had issued it in a social setting to an acquaintance. That was the explanation subsequently given to and accepted by Southend PCT, which was the health authority charged with investigating the matter. However, meanwhile, investigations were made to try and trace the patient at the address given, so as to verify the original account given by Dr Essien.
17. Dr Essien’s evidence as to when he knew about the fact of referral was:
“I was aware towards mid November that I was referred to the GMC. By this time I had been told I was to be made a principal. My decision was that it was not necessary to inform the PCT then because it was not now relevant”
We find that he knew that a complaint about issuing this prescription had been referred to the GMC by Primecare when he received a letter written by Dr Peter Glover, its medical director, on 16 October 2002, as he himself acknowledged in writing [see his letter to Mr. Burden R1/35].
18. But a mere referral is not initially an “investigation” by a regulatory body within the meaning of the Regulations until it has been accepted by a screener. This complaint first went to a GMC screener in the normal way. We do not know when it was passed by the screener and became accepted for investigation and the consideration of the Preliminary Proceedings Committee (“PPC”), but we have a letter [R1/45] dated 6 January 2003 from the GMC to Mr. Greenwood which says:
“Dr. Essien has declined to respond to our enquiries about this matter and we are at a stage where we can consider what further action, if any, is appropriate. Before we do so, we will wait for the outcome of your local investigation, as it may well be adequately resolved at that level, or you may find further information what would warrant our attention to help us make our decision.”
Dr. Essien told us in evidence that he knew the matter was being sent to the PPC “towards the end of last year”.
19. On the evidence available to us we find that Dr Essien was informed by the GMC that that the matter had been sent to GMC’s Preliminary Proceedings Committee for investigation towards the end of 2002, which for this purpose we consider to be in the month of December 2002.
20. Quite separately, Primecare referred the matter to Essex Strategic Health Authority. An investigation into possible abuse of prescribing was instituted by the health authority. Because of reorganisation, the responsibility for maintaining the Supplementary List on which Dr. Essien appeared passed to Southend PCT on 1 October 2002, although as a matter of administration there was a combined Supplementary List held centrally on behalf of all Essex PCTs. They were advised on performance issues by the Essex Performance Advisory Group (Essex PAG) of which Mr. Greenwood was secretary and Dr Grew was Medical Co-ordinator. This investigation was, by agreement, conducted by Southend PCT, where the event complained about had occurred.
21. The first communication received by Dr. Essien was a letter dated 15 November 2002 from Mr. Greenwood [Exhibit PG 1 at page PG7 of R2]. It did not say he was subject to an investigation. It said:
“Essex Strategic Health Authority has received information from Primecare (formerly Healthcall) concerning a prescription , which was issued to a patient for Xenical.
Your name is currently included in the Supplementary List for Essex.
The Medical Co-ordinator of the Strategic Health Authority and I would like to speak to you about this matter urgently…”
Dr. Essien replied by a letter dated 19 November 2002, in which he said he had issued the prescription to patient who lives at Southend and was entitled to NHS treatment, that he was being victimised by Healthcall, and that the patient had contacted a named official to confirm she had received the prescription and had asked for it. He said he was very busy and hoped this explanation would suffice without the necessity of a meeting. A document recording concerns by deputising doctors employed in South Essex was enclosed.
22. Mr. Greenwood and Dr. Essien subsequently spoke by telephone, and a meeting was arranged to take place on 25 November 2002.
23. Before the meeting took place, Dr. Essien received a letter from Greenwich, dated 22 November 2002, which informed him, “Your application [for inclusion on the Medical List] has been approved with effect from 1 December 2002” [R1/27].
24. On 25 November Mr. Greenwood and Dr. Grew met with Dr. Essien, accompanied by a representative, Dr. Ogunsanya, at Essex Strategic Health Authority offices. Mr. Greenwood subsequently made a typed note recording the substance of the discussion [R1/98-102]. It recorded that Dr. Essien gave an explanation of how he issued the prescription which was essentially the same as that originally given to Primecare (see paragraph 16 above). He admitted failures, including of adequate record-keeping. Among other things, it recorded that Dr. Essien said he was currently a principal in General Practice and his name was included in the Medical List, that at first he refused to say which one, and after some prevarication and being reminded he could not be on the Supplementary List and a Medical List simultaneously, said his name was on the Medical List of Greenwich Healthcare and he was in partnership with Dr. S.K. Ghosh of 110 Sandy Hill Road, Plumstead, London SE18 7BA.
25. That account was partly contradicted in evidence to us by Dr Essien, who explained that he was bemused by the assertive attitude of Mr Greenwood, who had never characterised their discussion as an investigation, but had told Mr Greenwood he was going to be a principal, not that he was already a principal. He said this was at Mr Greenwood’s prompting because he was enquiring what Dr. Essien was doing and he explained he was at the medical centre and would be a principal from 1 December.
26. On 27 November Mr. Greenwood wrote to Dr. Essien [R1/109] notifying him that Southend PCT would be taking the lead in relation to an issue concerning the Supplementary List, namely “your prescribing of Xenical”. The letter also said that “we [Essex Performance Advisory Group] have advised Southend PCT of the investigation which we are carrying out and which has not yet been completed”. It further said that Dr. Essien had told Mr. Greenwood and Dr. Grew that he was a principal on the Medical List of Greenwich PCT and that this was not so, and that in any event he would need to resign from the combined Essex Supplementary List before he could be accepted on to the Greenwich Medical List.
27. On 28 November 2002 Essex PAG and Primecare each wrote to and faxed Greenwich PCT [R1/31 and 32] notifying Greenwich that Dr. Essien was under investigation by Essex PAG and had been referred to the GMC. The following day, 29 November 2002, Mr. Burden (Director of Primary Health Care for Greenwich) wrote to Dr. Essien telling him to disregard the letter which had been sent to him dated 22 November 2002: that was the letter telling him his application for inclusion in the Medical List had been approved. Mr. Burden’s letter said the reason was that Dr. Essien had failed to provide the information and undertakings under Part III of Schedule 3 of the 1992 Regulations. His letter also informed Dr. Essien that Greenwich PCT had been notified about the investigation by Essex PAG and the referral by Primecare to the GMC. We understood from Dr. Essien’s evidence that this letter was delivered to him by courier.
28. On 2 December 2002 Mr. Greenwood wrote again to Dr. Essien enclosing a copy of his notes of the meeting held on 25 November, and asking him to say if there were any inaccuracies or omissions in those notes [exhibit PG 5 to witness statement within R2]. No reply was received and on 30 December Mr. Greenwood wrote again [R1/116 and also exhibit PG6 to statement within R2], repeating the request but also drawing attention to what he regarded as a number of inconsistencies in the information provided by Dr. Essien at the meeting, and asking a number of questions including why he had told Mr. Greenwood and Dr. Grew that he was a Principal in General Practice and that his name was included in the Medical List of Greenwich PCT when that was not so. On 3 January 2003 Dr Ogunsanya (who had attended the meeting with Mr. Greenwood on behalf of Dr Essien) wrote to Mr. Greenwood disputing the accuracy of his minutes [R2/PG40]. In particular he disputed the suggestion that Dr Essien had said he was a principal on the Greenwich Medical List. He contended that Dr Essien had explained he had applied to be on that list and had received a letter that his application had been successful. If this is correct, it follows that what Dr Essien told Mr Greenwood was correct.
29. On 1 December 2002 Dr. Essien had replied to Mr. Burden’s letter [R1/35] expressing his surprise to be told to disregard a letter which stated his application had been considered and was successful. He pointed out that no investigation or issue had arisen when he made his application but disclosed he had been aware of a referral to the GMC when he received a letter from Primecare dated 16 October 2002. He asserted his belief that he had complied with the regulations at the time he made his application. He referred to his meeting with Mr. Greenwood on 25 November, at which he said Mr. Greenwood had denied there was an investigation but simply wanted to hear his story for the sake of clarity. He said he understood that the patient, to whom the xenical prescription had been issued, had been traced and as far as he was concerned that was the end of the matter.
30. On 4 December 2002 Mr. Burden again wrote to Dr. Essien [R1/43] reiterating that one of the main reason for not being able to consider his application was that he had not provided the information required under the Regulations. He set out his view that “any purported decision to allow you to joint the list would not have been effective, sine the information referred to above was not available at the time.” He then referred to the information about the Essex investigation and the GMC referral mentioned above, and also said he had been informed that Essex Strategic Health Authority had not allowed him to withdraw his name from their Supplementary List. He said that Greenwich had been sent a copy of the letter to Dr Essien from Mr Greenwood dated 27 November. He concluded that the PCT would not be able to make a decision until the information was provided and that
“given the ongoing investigations by the Essex Strategic Health Authority and your referral to the GMC, any decision to admit you to the medical list, will be deferred until the conclusion of those investigations.”
31. Thereafter the first application (dated 9 September 2002) lay in abeyance and the process was not revived until Dr Essien made a second application on 22 February 2003.
32. Meanwhile on 8 January 2003 Dr Essien wrote to Mr Greenwood confirming that he had received his several letters sent since the date of their meeting. His representative had of course already written to Mr. Greenwood disputing the accuracy of his minute. Dr Essien continued in that letter by asserting he had provided honest answers and had no further explanation to give, and apologising for “a singular error”.
33. On the same date Mr. Greenwood on behalf of Essex PGA, made an interim report [R1/63] to Southend PCT. It was highly critical of Dr Essien over the circumstances of issuing the prescription and the explanation given for that, and recommended the suspension of Dr Essien from the Supplementary List pending the completion of the investigation. He told us in his witness statement [at R2/PG4 para 24] that the report was sent to Southend on 21 January 2003. Mr. Greenwood’s report did not refer to the fact that, through Dr Ogunsanya’s letter of 3 January, Dr Essien had disputed the allegation that he had misrepresented to them that he was already on the Greenwich Medical List [see paragraph 28 above].
34. Southend PCT dealt with the matter on 11 February 2003 when Dr Essien appeared before Dr Andrea Atherton (Director of Public Health), Mr Manfred Hennessy, Director of Primary Care and Dr Brian Balmer, CEO for North and South Essex Local Medical Committees. We have no direct evidence of what was said on that occasion, save that it was judged to be “a minor misjudgement on Dr Essien’s part” and the PCT was “satisfied that this was an isolated and somewhat naïve mistake that involved extending a favour to a friend” [letter Mr Hennessy 12 February 2003, R1/10]. Southend PCT decided to take no further action. That decision was communicated by letters dated 12 February 2003 to Dr Glover (Medical Director of Primecare) from Dr Atherton and more importantly to Greenwich and to the GMC from Mr Hennessy [R1/10 and 11]. In his letter to Greenwich Mr. Hennessy continued:
“At the meeting today we were satisfied that Dr Essien admitted to his error and expressed his apologies, he stressed that he had learnt from it and that he would not repeat it. I have assured Dr Essien that the PCT has no intention of pursuing the matter any further and that I would inform you at the earliest opportunity of this outcome in order that he can be considered for your medical list in Greenwich.”
35. That disposed of any outstanding investigation by another health authority as from 11 February 2003(as Greenwich now knew). The referral to the GMC remained outstanding, on the basis of its letter of 6 January 2003 [set out at paragraph 18 above]. Dr Essien later attached some weight to that letter, suggesting that he understood the GMC was awaiting the outcome of local disposal, which if favourable to Dr Essien would effectively conclude its own consideration. He told us he had seen a copy of this letter and believed it was probably among other documents forwarded to him by Mr. Greenwood. He also told us in evidence:
“At the time of the second application I had the conviction that I am cleared by Southend and because of local resolution the GMC would not be concerned.”
It was put to him in cross-examination that he was seeking to pull the wool over the eyes of Greenwich PCT by failing to declare this investigation. He did not agree. He said he was aware of the obligation to disclose an investigation by the GMC. When it was suggested to him that he was put on notice of the need for disclosure by Mr Burden’s letter of 4 December 2002, he said that by the date of his second application he believed that the local resolution of the complaint [by Southend] meant it was behind him, so there was no need to disclose anything.
36. We do not think that the GMC letter dated 6 January 2003 (assuming its contents were known to Dr Essien) can reasonably be read in the way Dr Essien suggests. Local disposal was not determinative of the GMC decision, even if it was an important factor for them. However, we do think Dr Essien persuaded himself that what he told us was in fact the case.
37. Against this background Dr Essien submitted his second application to Greenwich, dated 22 February 2003 [R1/5-14] but not apparently received by Greenwich until 24 March 2003 [see R1/49]. The proforma supplied to him on this occasion was more up-to-date: it contained a declaration [R1/11] intended to reflect the requirements of paragraph 6 (A)(a) of Part III, Schedule 3 of the Regulations (above). In fact it omits any reference to whether the doctor is currently subject to investigation by a health authority which might result in his removal. However any such investigation had been resolved in his favour by the date of this application. In addition, it states:
“I am currently not, neither have I ever been, subject of any fitness to practice [sic] proceedings by an appropriate licensing or regulatory body in the UK or other country.”
The words in bold above go beyond what information is lawfully required to be provided by a doctor.
38. Greenwich convened a panel to consider Dr Essien’s application. Dr. Burden told us that in addition to himself it comprised a non-executive director as the chair, Siobhan O’Donnell, the Head of Clinical Governance for the PCT, and Dr Hilary James (a Local Medical Committee observer). It met on 6 May 2003. In his statement Mr Burden said [R2/JB4 para 8] that it took into account the following evidence:
Details of investigation by Essex Strategic Health Authority
The two applications made by Dr Essien
The relevant Regulations.
His statement does not say the committee took into account the resolution of the Essex investigation on Dr Essien’s favour, although we know that Greenwich had been informed of that outcome. In oral evidence to us he said that it also took into account the referral to the GMC which they believed was still outstanding. There had been no further contact between Greenwich and the GMC since Mr. Burden wrote his letter of 4 December 2002 putting the resolution of Dr Essien’s application on hold. Mr. Burden told us that he thought the first application had been superseded by the second, and it was this second application which they were determining (as appears from their subsequent decision letter).
39. Mr Burden told us that during their discussions, the major concern was that Dr Essien had not made full disclosure under the ongoing obligation within his first application nor on his second application. That created doubt about working relationships, should he be admitted to the List. The committee was also concerned (on the basis of the interim report to Southend PCT by Mr Greenwood [R1/63] which was in their possession) that he had informed Dr Grew that he was on Greenwich’s Medical List when he was not – indicating in their view a lack of openness. The final matter, he told us, was that there was no clear reference in either application to the fact that he had been referred to the GMC.
40. Mr. Burden stressed in his witness statement and during his evidence that he and his colleagues at Greenwich took the view that what they believed to be a failure to make a full and proper declaration reflected poorly on the prospects for trust in the working relationship between the PCT and Dr Essien if he were admitted to the Medical List. It is necessary to recall that this was a view formed on the basis of the paper evidence; Dr Essien did not appear or give evidence before Mr. Burden’s committee. Mr Burden told us in cross-examination that Dr Essien had been invited to attend, although he was unable to produce the letter of invitation or explain its absence from the disclosed material. Mr. Burden said it was not the original conduct in issuing a prescription which was the concern, but the failure to disclose the investigations arising from it.
41. Dr Essien’s explanation to us in evidence was:
“Later when the second application went in, I thought they already knew about the position because Mr Greenwood sent me all the documents he had sent to [Greenwich]”
It is in fact the case that Greenwich did know about the resolution of the Southend investigation in favour of Dr Essien (see the letter from Mr Hennessy dated 12 February 2003 at R1/10) and also knew of the referral to the GMC, as Mr Burden confirmed in cross-examination. They did not know how the GMC referral had progressed.
42. Dr Essien’s position appears to have been that it was pointless to inform Greenwich of a GMC referral about which they had already written to him to say they knew. Greenwich’s position is that, whether they already knew or not, Dr Essien is required to declare any such investigation and it is his failure to do so which gave rise to the concerns.
43. Mr. Burden told us that when making their decision, Greenwich did not know that there was a challenge to the assertion in Mr Greenwood’s report that Dr Essien had falsely claimed he was currently a principal on Greenwich’s Medical List. For reasons which were not made clear to us Mr Greenwood’s report did not refer to Dr Ogunsanya’s letter dated 3 January 2003 (see paragraph 28 above). Had they been aware, it is difficult to know how they would have resolved the dispute, or what weight they would have attached to the allegation.
44. The decision by Greenwich to refuse admission to the Medical List was communicated to Dr Essien by a letter dated 30 June 2003. No doubt this delay was occasioned by the need for the PCT to consider and adopt the recommendation by the committee which had reviewed the application. It said (referring to the declaration in the second application):
“Firstly, you failed to provide a full and proper declaration …. In particular you failed to declare that you are presently the subject of an investigation into your professional conduct and/or performance by the GMC”.
It went on to state that in their view this was extremely serious and one reason for that was the need for trust in the relationship with principals. It said that “your failure to provide this information is sufficient to persuade [Greenwich] that it would not be suitable or appropriate to allow you onto its Medical List”.
45. The decision letter continued by relying on a failure to make a proper declaration in the original application. Greenwich said this reinforced its view. It did not specify what constituted that failure.
46. The third ground relied on was the “misleading and inappropriate statement” to Mr Greenwood in the interview conducted by him in November 2002.
47. Lastly Greenwich relied on his failure, in either of his applications “to confirm the position with regards to the investigation by [Essex], particularly given that the investigation could have resulted in your removal from the Supplementary List”.
48. The GMC investigation remained ongoing. Those who had determined the Southend investigation in favour of Dr Essien appear to have been keen to help resolve the GMC case. On 28 May 2003 Dr Brian Balmer (Chief Executive of North and South Essex Local Medical Committees) wrote to the GMC [A/13] saying, among other things:
“I believe that you have received letters from Mr M Hennessy of Southend PCT and Dr P Glover from Primecare. These organisations are content that this matter has been resolved and that there are not further questions regarding the competence or behaviour of this doctor. It was Primecare that originally contacted the GMC, but the current action has been triggered by information sent by the Essex PAG.
This is a complex case which should have been resolved at PCT level. A number of unfortunate decisions resulted in PAG involvement and at this stage a serious clash of personalities and, in my view, an over-zealous approach by a PAG manager, brought into question the doctor’s integrity. I believe this was due to the mismanagement of a frightened, nervous doctor who was at that time receiving poor advice from well-intentioned friends.”
49. The GMC complaint was ultimately resolved. On 19 September 2003 the Preliminary Purposes Committee of the GMC wrote to Dr Essien. It explained that their role was to determine whether there was a case which should be referred to the Professional Conduct Committee. It set out the substance of the complaint about inappropriately issuing the prescription for xenical. It continued:
“Having considered all the circumstances of your case, the Committee did not consider that it ought to be referred for such further inquiry. It was its view that there was no reasonably prospect of proving serious professional misconduct.
Nevertheless the Committee has decided to issue a warning in relation to this matter. It was concerned that on this occasion you had prescribed slimming medication inappropriately and had been dishonest at an initial inquiry where you denied knowing the patient when you subsequently admitted that she was a personal friend.”
Dr Essien was warned that if a further complaint was received within the next two years, the Committee could review this decision, and on any subsequent the Committee could take into account this warning.
50. The First application: did Dr Essien fail to declare investigations by the GMC and Southend PCT?:
a. The obligation on Dr. Essien under the Regulations (paragraphs 6 (A) (a) (vii) and 25 of Schedule 3 set out above) is to notify the PCT within 7 days of knowing that he is subject to an investigation by the GMC or by another PCT. We find that no GMC investigation comes into being for the purpose of these Regulations until a complaint is accepted by the screener and passed to the Preliminary Proceedings Committee for investigation. A referral or complaint to the GMC is not an investigation until that point. We have already found that Dr. Essien knew there was a GMC investigation (in this sense) towards the end of 2002.
b. We find that by that time Dr Essien had received the Greenwich letter of November 2002 appointing him to the List. He had also received subsequent letters of 29 November and 4 December 2002 withdrawing that approval and stating that the application would remain in abeyance until it had received information relating to the Essex investigation and GMC referral and the outcome of those investigations. That letter also informed him that Greenwich was aware of the nature of these investigations in some reasonable detail and that Greenwich had been sent a copy of the letter from Essex PAG to Dr Essien.
c. We therefore find that there was no obligation to inform Greenwich about a GMC investigation until Dr Essien was informed that the matter had been accepted as an investigation some time toward the end of 2002, and in any event after Greenwich had withdrawn its acceptance of his name on the List and the application had effectively gone into abeyance.
d. We find that Dr Essien first knew that Southend PCT had been asked to undertake an investigation of the issuing of the prescription when he received Mr Greenwood’s letter of 27 November 2002 (see paragraph 26 above). We now know that at the same time Mr Greenwood informed Greenwich of that fact. Under the Regulations Dr Essien had until about 6 December 2002 to inform Greenwich that he was subject to that investigation.
e. Dr Essien’s Counsel submitted to us that there was no obligation to disclose the investigation by Southend PCT since that was not a body envisaged by the Regulations to carry out the investigations referred to in the Regulations. We reject that submission.
f. At about the time Dr Essien received that letter he also received, by courier, the Greenwich letter dated 29 November, telling him to disregard the letter appointing him to the List. Within a very few days he received the further letter of 4 December 2002.
g. We find that after receiving those letters Dr Essien believed that Greenwich already had the relevant information. In point of fact Greenwich probably did. Even with the benefit of hindsight it is difficult to identify any additional relevant information which could have been given to Greenwich at that stage. He did not therefore formally write to provide information of the Southend investigation. While he had a strict obligation to notify Greenwich within 7 days of the fact that he was subject to investigation by Southend, he knew (because the Greenwich letter of 4 December said so) that any decision would be deferred until the conclusion of the investigations which they mentioned. We also find that throughout Dr Essien felt there had been an over-reaction by administrators to a minor transgression (prescribing for a friend who was not a patient), and had persuaded himself that favourable resolution would be achieved at local level. There was an element of burying his head in the sand.
h. His omission did not deprive Greenwich of any relevant information but it did amount to a failure to comply with the Regulations and later gave rise to a question mark over his trustworthiness.
i. Greenwich treated the first application as superseded by the second application, and while they were entitled to have regard to “any other information in its possession in relation to the application” which could be taken to embrace Dr Essien’s disclosure in the first application, it would be wrong in the circumstances of this case to attach too much weight to his failure, during the currency of the first application, to confirm that he was under investigation as suggested by Greenwich.
51. The second application: did Dr Essien fail to declare investigations by Southend or the GMC?
a. Once the Southend investigation was resolved in his favour Dr Essien felt free to revive the process and he did so by submitting a further application. At that point there was no obligation on him under the Regulations to declare the Southend investigation. We note also that the declaration on the printed application form used by Greenwich at this time failed to include a requirement to disclose investigations by other health authorities. We find that to the extent Greenwich apparently treated Dr Essien as having failed to disclose the concluded investigation by Southend in this application (see paragraph 47) they were in error.
b. By the date of its decision, Greenwich knew that the Southend PCT investigation on behalf of Essex had been concluded in favour of Dr Essien, that Southend was satisfied he had admitted his error, apologised and had learned from it and would not repeat it, and that they wished him to be considered for the Medical List in Greenwich [see letter from Mr. Hennessy A1/10]. That conclusion would have influenced a fair-minded body and reassured it as to the underlying allegation.
c. There was an obligation to declare the GMC investigation in this second application. This he failed to do, partly for the same reasons that he had failed to write formally to Greenwich at the end of 2002 to confirm their information about a GMC investigation, but also because he had persuaded himself that local resolution of the matter in his favour by Southend would also effectively resolve the GMC investigation in his favour. For the reasons set out at paragraph 36 of this decision we do not think that was a correct or reasonable reading of the GMC letter of 6 January 2003. The GMC might have taken that view ultimately, but it did not automatically follow. However, that is what Dr Essien chose to believe.
d. There was in fact no material information to add to what was already known to Greenwich (other than that the case remained under consideration by the PPC) until that committee of the GMC wrote its letter of 19 September 2003 [see paragraph 49]. That was long after the Greenwich determined the application.
e. The ultimate determination of the GMC not to refer the matter for prosecution for serious professional misconduct is in our view unsurprising. Dr Essien was not “cleared” because he received a warning from the Preliminary Proceedings Committee, but the investigation was resolved before getting to any proceedings for serious professional misconduct. It is not possible to know what view Greenwich would have taken if this had been known at the date of their decision. We respectfully agree that the GMC response reflects the nature of the error in prescribing. If fully informed of the situation, no reasonable PCT would in our view have refused to include Dr Essien in its Medical List on that ground alone.
52. Other matters considered by Greenwich
a. On Mr Burden’s written and oral evidence, Greenwich took account of the interim report compiled by Mr Greenwood in the course of the Essex investigation, which recommended interim suspension. However its contents did not form part of their stated reasons, save to rely on Dr Essien’s alleged mis-statement that he was currently on the Medical List at Greenwich. It is troubling that this report did not also say that this account was disputed (see paragraph 33 above). We do not find it necessary to determine which recollection of the interview is correct, since we take the view that it would be unreasonable and disproportionate to refuse an application for admission to the Medical List on that ground. If, during his interview with Mr Greenwood on 27 November 2002, Dr Essien did use some form of words which tended to suggest he was already on the Greenwich Medical List, he must inevitably have been influenced by his knowledge that his application was approved, to take effect from 1 December (4 days after his interview with Mr Greenwood) and could not reasonably be taken as trying to pretend he was not on the Supplementary List administered by (among other people) Mr Greenwood, as both knew he was. By virtue of being on the Supplementary List, he was (and remains) practising in the GP centre where he proposes to be a Principal and partner of the existing sole practitioner.
b. We find Greenwich did have regard to the interim report prepared by Mr Greenwood, notwithstanding that the decision of Southend PCT was in favour of Dr Essien. That was a highly critical report, including as to Dr Essien’s honesty, but inferentially the decision by Southend must have rejected or at least modified its contents. In our view Greenwich was influenced by the contents of the Greenwood interim report, and probably in respects which went beyond the specific allegation of seeking to mislead Mr Greenwood that he was already on the Greenwich Medical List (the only part of the report relied on by Greenwich in its reasons).
53. While we find technical breaches of the Regulations in failing to declare the ongoing GMC investigation on the second application, and (to the extent that the first application was not superseded) in not formally notifying Greenwich of the investigations by Southend and the GMC when they arose, in all the circumstances we have set out, we conclude that it would be disproportionate to conclude that Dr Essien is unsuitable for inclusion on the Medical List. We also bear in mind that although Greenwich relies on the failure to disclose and not on the facts which would have been disclosed, they knew the material facts, and if those facts had been formally disclosed by Dr Essien they could not reasonably have resulted in a decision to refuse his application.
54. The decision of the panel is therefore to allow this appeal. Dr. Essien should be admitted to the Medical List maintained by Greenwich. That may take effect when he effectively resigns from the Supplementary List maintained by Southend PCT.
55. In accordance with Regulation 42 (5) of the Family Health Services Appeal Authority (Procedure) Rules 2001, we notify the Respondent that it may have rights relating to appeals under Section 11 of the Tribunals and Inquiries Act 1992.
Chair of the Panel