IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY
Case No: 10860
MR. ROBIN CHAUDHURI – CHAIRMAN
DR. G. SHARMA – PROFESSIONAL MEMBER
MR. T. BENNETT – MEMBER
DR. B.B. CHAUDHURI
(GMC Registration No. 1734007)
NEWHAM PRIMARY CARE TRUST
DECISION WITH REASONS
1. This is an application by Dr. Chaudhuri for an extension of time to appeal against the decision of Newham Primary Care Trust (hereinafter referred to as “The PCT”) to remove him from their Supplementary Medical List.
2. Both parties have asked the Panel to deal with the matters on the papers only. The Panel convened on 10th December 2003. I should also add that all the members of the Panel have confirmed the declaration of “no interest” in the proceedings.
(i) On 20th September 2002 Dr. Chaudhuri was included on the PCT’s Supplementary Medical List, subject to conditions. Those conditions included:
(a) an agreement to have an annual occupational health assessment and appraisal;
(b) an agreement to allow the PCT to conduct an audit of his clinical record keeping; and
(c) to provide details of a practice where the PCT could access such appropriate medical records.
Despite written reminders on 4th November 2002, 18th November 2002 and a discussion with his Medical Defence Union representative on 12th December 2002, Dr. Chaudhuri apparently failed to comply with conditions (b) and (c) above.
(ii) Subsequently, on 12th May 2003 David Stout, Chief Executive of the PCT, wrote to Dr. Chaudhuri informing him of their intention to seek his removal from their list. Before any such decision could be considered Dr. Chaudhuri was asked to make written representations and to send them to Mr. Stout by 9th June 2003. This letter was sent to Dr. Chaudhuri’s home address. The Panel convened by the PCT was due to meet on 2nd July 2003.
(iii) Upon receipt of the letter dated 12th May 2003 Dr. Chaudhuri’s wife contacted the PCT to inform them that her husband was abroad. The PCT sent another letter dated 23rd May 2003 inviting Dr. Chaudhuri to:
(a) confirm when he was planning to return to the UK so that an extension of time for his submission of written representations could be made; and
(b) confirm whether he required a hearing so that one could be arranged after his return to the UK.
A separate letter to Mrs. Chaudhuri was also sent on 23rd May 2003.
(iv) Dr. Chaudhuri did not reply to the PCT’s letter dated 23rd May 2003.
(v) On 11th July 2003the PCT wrote to Dr. Chaudhuri and confirmed that, following a Panel meeting on 2nd July 2003, he had been removed from the PCT’s Supplementary Medical List. He was informed of his right to appeal the decision within 28 days to the FHSAA.
(vi) On 27th October 2003 Dr. P. Mackenzie, from the Medical Protection Society, sent a letter to the FHSAA on Dr. Chaudhuri’s behalf. The letter confirmed that Dr. Chaudhuri:
(a) had not returned to the UK until on or about 22nd September 2003;
(b) knew “nothing of the proceedings….”;
(c) had been afford no opportunity to defend himself and subsequently there was a potential breach of Article 6 of the European Convention; and
(d) wished to seek an extension of time to appeal against the PCT’s decision.
(viii) On 12th November 2003 David Stout, on behalf of the PCT, refuted the suggestions made in the letter of 27th October 2003.
4. THE LAW
The Panel have considered the following:
(i) The NHS (General Medical Services Supplementary List) Regulations 2001 (as amended by the NHS Amendment Regulations 2003);
(ii) The “Notes” to Part 52 (Appeals) of the ‘White Book’ (Civil Procedure);
(iii) Article 6 of the European Convention;
(iv) The Family Health Services Appeal Authority (Procedure) Rules 2001.
Regulation 5 of the FHSAA (Procedure) Rules 2001requires an appellant to appeal to the FHSAA within 28 days beginning with the date on which the PCT gave him notice of the disputed decision. There is no provision in the Rules to extend the time for an appeal. Nevertheless, the issue of extending the time for an appeal is not an uncommon one within other jurisdictions. The notes to Part 52 (Appeals) of the ‘White Book’ suggests that a “good reason” for seeking a modest extension of time should be provided by the party seeking an extension. In Costellow –v- Somerset County Council  1 AER 952 it was suggested that a “convincing excuse” for the delay should be provided.
Moreover, as Dr. Mackenzie quite rightly states in the letter dated 27th October 2003 regard must be had to Article 6 of the European Convention. In the Panel’s opinion, a party should always have the opportunity of seeking an extension of time to appeal, provided a “good reason” or a “convincing excuse” can be provided.
5. THE DECISION
The Panel have unanimously concluded that Dr. Chaudhuri’s application for an extension of time to appeal against the decision of the PCT to remove him from their Supplementary List be rejected.
Dr. Chaudhuri’s suggestion that he knew nothing of these proceedings is implausible. There is no doubt that Mrs. Chaudhuri knew of the PCT’s intent to pursue matters shortly after 12th May 2003. The Panel find it incredulous that Mrs. Chaudhuri would not have attempted to bring the letter of 12th May 2003, and any subsequent correspondence, to the attention of her husband, yet Dr. Chaudhuri has not provided the Panel with any explanation as to what attempts were in fact made by his wife.
The Panel also concluded that it was incumbent upon Dr. Chaudhuri to keep the PCT aware of his movements, especially as he had failed to comply with the conditions which permitted him to remain on the PCT’s Supplementary List.
The Panel were therefore of the view that Dr. Chaudhuri had not provided a “good reason” or a “convincing excuse” for seeking an extension of time. In the circumstances, the Panel concluded that Article 6 of the European Convention had not been breached.
7. 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 of an Appeal Centre on the Circuit in which the FHSAA is situated within 28 days.
Dated this……….day of ………………………….2003