THE FAMILY HEALTH SERVICES APPEAL AUTHORITY

 

CASE NUMBER 11444

 

APPEAL ON 7TH DECEMBER 2004

 

 

MR BASIL MASHKOUR

(GDC Registration Number 82559)

                                                                                                 Appellant

and

 

EALING PRIMARY CARE TRUST

                                                                                                             Respondent

 

Appeal by the Appellant under section 5ZC of the National Health Service (General Dental Services) Act 1992 to the Family Health Services Appeal Authority (FHSAA) against the Respondent’s decision to refuse to include him on its dental list

 

Appeal dismissed

 

DECISION AND REASONS

 

A. Preliminary matters

 

  1. The appeal was heard by Mrs D Shaw (Chairman), Dr J Chope and Mrs J Alderwick at the Care Standards Tribunal, 18 Pocock Street, London SE1 0BW.

 

  1. Prior to the hearing all three panel members had signed a declaration confirming they had not had any prior interest or involvement in the appeal which would preclude them from considering the evidence in an independent and impartial manner.

 

  1. The persons present at the hearing were:

 

Mr B Mashkour                                                     - Appellant

            Mr N Curtiss                                                        - Respondent’s representative

            (Director of Corporate Governance, Ealing PCT)

 

B. History of the Appellant’s appeal

 

  1. On 4th July 2004 the Appellant applied to Ealing PCT (the Respondent) for inclusion in its dental list.

 

  1. In a letter dated 24th August 2004 the Respondent informed the Appellant that 

it was unable to include him in its dental list because one of his references  was not satisfactory as it cast doubt on his clinical abilities. The Respondent went on to inform the Appellant that it would be pleased to reconsider his application following a period of postgraduate education consisting of clinical-based professional development as evidenced by attendance and references from the course tutors and this programme could be developed in conjunction with Ravi Rattan, Dental Advisor, the Respondent and the London Dental Postgraduate Deanery.

 

  1. On 20th September 2004 the Respondent wrote to the FHSAA indicating he

wished to appeal the Respondent’s decision. At the same time he asked the Respondent to reconsider its decision without an appeal.

 

  1. On 28th September 2004 the Respondent wrote to the Appellant indicating it was not prepared to reconsider its decision.

 

 

C. The Appeal

 

      (i)  Jurisdiction

 

The National Health Service (General Dental Services) Regulations 1992 as amended by The National Health Service (General Dental Services) Amendment (No.6) Regulations 2001 and The National Health Service (General Dental Services) Amendment Regulations 2002.

5ZA -(1) The grounds on which a [PCT} may refuse to include a dentist in the

               dental list under regulation 5 are –

           (c) that having contacted referees, they are not satisfied with the

                references given

 

 

 

           The National Health Service (General Dental Services) Regulations 1992 as

           amended by The National Health Service (General Dental Services)

           Amendment (No.6) Regulations 2001

           Schedule 2, Part I - Information …to be included in an application for

           inclusion in the dental list [shall include]

           11A –     The names and addresses of two referees who are willing to provide

 clinical references for the last two clinical posts where the 

 employment lasted for a continuous period of at least three months,  

 and where this is not possible, a full explanation and the names and

 addresses of alternative referees

 

 

          The National Health Service (General Dental Services) Regulations 1992 as

          amended by The National Health Service (General Dental Services)

          Amendment (No.6) Regulations 2001

          5ZC -(1) A dentist may appeal to the FHSAA against a decision of a {PCT} to

                         refuse to include his name in a list pursuant to regulation 5(1)

                   

                    (2) Such an appeal shall be by way of redetermination

 

 

 

(ii) Evidence

 

  1. Mr Mashkour

 

1.1    Mr Mashkour confirmed he graduated BDS in August 2003. He then   

embarked on his year of vocational training which was based on continual assessment of his clinical work with his Vocational Training Advisor visiting four times. At the end of that year he was granted a vocational training certificate on the basis of having satisfactorily completed his vocational training year.

 

1.2    He experienced some problems with Mr Walsh, his Vocational Trainer.

In September 2003 he was ill with a fever and called in sick. Mr Walsh complained this was a major inconvenience and when Mr Mashkour returned to work the next day Mr Walsh said he should come to work unless it was a matter of life or death.

 

1.3    In December 2003 Mr Mashkour was ill and coughing and sneezing. He

       drove the long distance to work in the snow and saw his first few patients

       but asked the Practice Manager to cancel the rest. However, Mr Walsh

       said he had to carry on, which he did. It took him several hours to drive

       home in the snow. He called his Vocational Training Advisor when he got

       home at about 10pm to say he felt too ill to work and he was told he

       should not go to work the next day and get a sick note, which he did. He

       returned to work after one day off.

 

1.4    In July 2004 Mr Mashkour had a stiff neck and shoulder and could not get

out of bed. He phoned Mr Walsh at home at 7.15am, who told him he must get a sick note. Mr Mashkour was unable to obtain an emergency appointment that day. Later that day Mr Walsh telephoned him back; when Mr Mashkour’s wife answered the phone Mr Walsh was rude to her and they had an argument. Mr Mashkour telephoned his Vocational Training Advisor to complain and he was advised to put his complaint in writing. He also telephoned Mr Walsh and told him not to speak to his wife like that. He saw his GP the next day, whogave him medication and a sick-note, which Mr Mashkour faxed to Mr Walsh.

 

1.5    Mr Walsh complained to Mr Mashkour’s Vocational Training Advisor

that Mr Mashkour had a very poor relationship with his staff but Mr Mashkour felt it was Mr Walsh who had the problem with staff.

 

1.6    Mr Mashkour acknowledged the need for further improvement of his

       clinical work and that, like all dentists, he needed Continuing Professional

       Development (CPD) but he did not agree that he needed further training.

 

1.7    In response to questions – Mr Mashkour confirmed he considered his

strained relationship with Mr Walsh had a bearing on the reference from Mr Walsh.

 

1.8    He had not pursued his complaint about the way Mr Walsh spoke to his

 wife because it occurred at the end of his vocational training year and his 

 relationship with Mr Walsh. He had obtained his vocational training 

 certificate and both he and his wife felt there was nothing to be gained by  

 going through the complaints process; he would be working elsewhere.

 

          1.9  Mr Mashkour accepted that after BDS all dentists needed to undergo a

     vocational training year and ongoing CPD. However, he distinguished 

     between the necessity for further training, which he disputed, and the need 

     to further improve his clinical skills, which he acknowledged.

 

         1.10 He had understood the Respondent’s requirement for two clinical

                 references. If he could have provided another clinical reference he would

                 have done so, but his Vocational Training Advisor (Mr Patel) had seen his

                 work when he visited and Mr Walsh had agreed with both Mr Patel and the

     Regional Advisor (Janet Heath) that Mr Mashkour should be awarded his

     vocational training certificate.

 

         1.11 Mr Mashkour acknowledged that Mr Patel had highlighted some of his

                 clinical difficulties in the reference he gave to the Respondent (page 12 of

     the case papers). He had experienced some difficulties with crown, bridge

     and denture occlusal registration, but he had asked for help when necessary

     and although he acknowledged there was a need for improvement, he

     disputed that one or two problems he had encountered meant he was

     incompetent.

    

         1.12 He considered Mr Walsh’s reference was too vague and imprecise. It did

                 not make sense and the PCT should have asked Mr Walsh for a further

                 explanation. He did not agree with Mr Walsh’s assessment of his clinical

                 abilities as ‘poor’; He had another satisfactory reference and a vocational

     training certificate and the PCT should have investigated the contradiction.

     When the PCT contacted Mr Patel he had not said Mr Mashkour should not

     be included in the list but that there was room for further improvement; that

     was not the same as saying he had poor clinical skills and needed further

     training.

 

        1.13 He did not think his more recent reference from his current employer (page

                6 of the case papers) needed to specifically address his previous difficulties

                with crown, bridge and denture work if they no longer existed.

 

         1.14 He felt Mr Walsh’s reference was both untrue and inaccurate. The

                 references from his clinical tutor (Mr Beg) and his current employer (Dr

                 Riddell) both contradicted it and he asked to be judged on those references

                 instead.

 

         1.15 Mr Mashkour’s employment since qualifying had been with Mr Walsh

                 from August 2003 to August 2004 and as an Associate with Dr Riddell on a

                 one-year contract from 30th September 2004. He had also worked for Mr

                 Taher on some, but not all, Saturday mornings from October/November

                 2003 to date, but it was not a regular commitment. Mr Taher would be

     present at the surgery when he worked there and he would see NHS

     patients; either new patients who would go onto his own list, or Mr Taher’s

     patients if they were willing to see him. However, he had decided not

     to carry on with this job as he was now working full-time from Monday to

     Friday.

 

         1.16 At the time the Respondent’s suggestion in its letter of 24th August for an

                 agreed programme of clinical-based professional development had been

                 acceptable, but Mr Mashkour needed a job to earn money and he could not

                 afford to wait any longer; there was no guarantee that the Respondent

                 would accept him; simply that it might do so in the future. He had spoken

                 to his Dental Advisor who said he could either wait or apply elsewhere so

     he applied to Hertfordshire PCT and obtained his current post. Mr

     Mashkour had no problem with attending further courses but he could not

     afford it this year.

 

1.17    Mr Mashkour had supplied Hertfordshire PCT with references from Mr

    Taher and Mr Patel, which it had accepted. Mr Patel was willing to give him

    a reference and had accepted Mr Mashkour was not willing to re-approach

    Mr Walsh.

 

1.18    Mr Mashkour had addressed the clinical difficulties he had encountered with crown, bridge and occlusal work by attending a one-day course on crowns and bridges towards the end of his vocational training year and a three-day course (14 hours) on crowns, veneers, bridges, composites and periodontal work in 2003 and also continuing to consult his Vocational Training Advisor and Trainer and making plans to attend CPD courses. He had recently been to a free evening talk on root canal treatment and there was a course in March 2005 about crowns and bridges. He was not booked on any course; he would attend free courses this year and save up to try and go next year on a once-monthly course on cosmetic work, root canal treatment, veneers, crowns and bridges or possibly do a MSc at the Eastman Hospital or in Manchester. He was not resistant to approaching his Dental Advisor for advice on CPD as suggested by the Respondent but he had been unable to await a further decision by the Respondent.

 

1.19    He had felt the Respondent would only reconsider his application after he had completed a CPD course, rather than on his signing up for such a course.

 

 

2.   Mr Curtiss

 

2.1     Applications to join the PCT’s dental list were usually very routine and a

 formality in terms of the administrative process and the pro-forma nature of  

 the application form indicated this.

 

2.2    The majority of applications complied with the regulations in terms of the

 necessary documentation and references. The PCT would scrutinize

 applications and if the screening did not reveal any problems, the registration

 process would proceed without interruption.

 

2.3    If there was a problem the application was referred to the PCT’s NHS

Performers and Health and Social Care Act Decision-Making Group. This

was a formally constituted Board Committee with clear terms of reference

and delegated powers to make recommendations and decisions on behalf of

the PCT with regard to issues regarding practitioners and their performance as

well as decisions on whether or not to admit or refuse to admit a practitioner

on to the PCT’s list of practitioners.

 

2.4    On 22nd August 2004 the Decision-Making Group met to consider Mr

 Mashkour’s application. The members were aware that the PCT has a duty of

 care imposed upon it to protect patients and ensure the provision of safe

 services. They decided they must reject Mr Mashkour’s application in

 accordance with the governing regulations because, having contacted

 referees, they were  not satisfied with the references given.

 

2.5    The reference from Mr Walsh was from Mr Mashkour’s clinical supervisor as

 part of the clinical vocational training scheme. Mr Curtiss submitted that Mr  

Walsh was someone who would have a very close and deep appreciation of Mr Mashkour’s clinical abilities. The PCT should reasonably be allowed to assume that the Principal of a training practice would have a very clear understanding of the importance in providing a former vocational trainee with a reference. MrWalsh’s reference could not be described as an endorsement of Mr Mashkour; he had indicated his clinical abilities were ‘poor’ and  commented that Mr Mashkour had acknowledged the need for further training   in discussion with himself and the Peterborough Scheme Advisor.

 

2.6    Given the nature of the close training relationship, the PCT felt unable to

 dismiss Mr Walsh’s views and attached significant weight to them. It felt that

  it would have been neglectful in terms of its wider duty to protect patients

  and the public if it had ignored such a reference and allowed Mr Mashkour to

  join its list.

 

2.7    However, in being fair to Mr Mashkour the PCT actively sought the

 comments of his Vocational Training Advisor (Mr Patel). Mr Patel’s e-mail

 of 14th August 2004 (page 12 of the case papers) did not refute Dr Walsh’s

 reference. It acknowledged a strained relationship between Mr Mashkour and

 Mr Walsh and also very strongly leaned towards indicating the need for Mr

 Mashkour to pursue continuing professional development and to work in a

 practice which would provide ‘help and support’.

 

2.8    Mr Mashkour was offered the opportunity to discuss the deficiencies in his

clinical practice with the Trust’s Dental Advisor with a view to assisting him

to obtain the necessary support to rectify the problems which had been

identified. To date, Mr Mashkour had chosen not to avail himself of that 

offer.

 

2.9    In conclusion, Mr Curtiss submitted that the PCT has acted both reasonably

       and fairly in refusing to accept Mr Mashkour on to its dental list. Despite its

        offer of a suggested way forward, Mr Mashkour had not done anything to put

        the PCT’s mind at rest but the PCT wished it to be recorded that its offer of

        assistance remained open.

 

2.10 In response to questions – Mr Curtiss confirmed the PCT had not contacted

Mr Walsh to discuss Mr Mashkour’s reference. It had contacted Mr  Mashkour to be fair to him to indicate there was a problem but it was Mr Mashkour who chose Mr Walsh as a referee.

 

     2.11 The PCT noted Mr Mashkour had received his vocational training certificate

             but the governing regulations required the PCT to obtain and consider

             references and one of Mr Mashkour’s references indicated he had poor

 clinical abilities.

 

      2.12 The PCT had no problem with Mr Mashkour’s other reference but the

  subsequent intervention of Mr Patel did not overturn the PCT’s view; he did

  not actively undermine Mr Walsh’s reference. The PCT felt it was safer not

  to include Mr Mashkour.

 

2.13 The PCT had not notified other interested parties (including Hertfordshire

        PCT (under whose list Mr Mashkour was currently working) of its decision

        to refuse to admit Mr Mashkour on to its list of practitioners because his

        application was currently subject to appeal.

 

3.   Closing Statements

 

Mr Curtiss 

 

3.1   The PCT had to give close consideration to references from training

        principals. This reference had come from a training practice where trainers

        would undergo annual visits and reviews. The amount of close clinical

        supervision was significant in assessing the character and capabilities of

  trainees. 

 

3.2   The additional references from Drs Riddell and Beg had been given after the

       PCT had made its decision so it could not comment on them.

 

3.3   Mr Mashkour had still not indicated he would undertake a vigorous or clear

       programme of training. Mr Curtiss thought he would need a solid plan to

       further his career and develop his skills and he suspected from what he had

       heard that the PCT’s concerns had not been allayed.

 

 

Mr Mashkour

 

3.4   Mr Mashkour had contacted his Dental Advisor (Mr Rattan) when he

received he PCT’s decision. Mr Rattan had advised him to withdraw his application and apply elsewhere but the PCT had informed him he could not withdraw after it had made a decision; he could only appeal the decision.

 

3.5  The PCT had not given Mr Mashkour the chance to discuss further training programmes; he would not have minded at all and if it could give him a clear programme of CPD he would do it. He felt he had been left without any clarification and he did not want anything like this on his records.

 

       3.6 There was a clear contradiction between Mr Mashkour’s clinical reference 

             from Mr Walsh and his other reference and his vocational training certificate.

             He remained willing to undertake a clearly designed programme tailored to

             his needs in the evening or at weekends.

 

 

D.    Consideration of the Evidence and Findings

 

1.    We have carefully considered all of the written and oral evidence. Our remit

       is to redetermine Mr Mashkour’s application for inclusion in the PCT’s

       dental list and in so doing, to consider whether his referees supplied

       satisfactory references.

 

  1. We have noted Mr Mashkour’s evidence as to why he considers Mr Walsh provided him with an unsatisfactory reference. There were clearly personal differences between Mr Mashkour and Mr Walsh, but on the evidence we have seen and heard we are not persuaded that these alone would have prompted Mr Walsh to give such a reference. In reaching this finding we have noted the wording of Mr Patel’s reference and placed weight upon it; whilst Mr Patel acknowledged the strained relationship between Mr Mashkour and Mr Walsh, he did not refute the reference. He confirmed that it had been agreed by all concerned that Mr Mashkour would progress in the early part of his career in a practice which would continue to provide help and support and that he had agreed to maintain his CPD and to choose appropriate courses to satisfy GDC requirements and address his learning needs.

 

  1. Moreover, notwithstanding the PCT’s acceptance of Mr Mashkour’s second

Reference from Mr Taher, we are concerned that it does not properly comply with the governing regulations. These stipulate that a dentist applying for inclusion in a dental list must supply the names and addresses of two referees

who are willing to provide clinical references for the last two clinical posts where the employment lasted for a  continuous  period of at least three

months. We do not consider Mr Mashkour’s  employment on irregular Saturday mornings with Mr Taher properly  complies with the spirit of this provision; by Mr Mashkour’s own  admission this is not a regular commitment. Mr Mashkour told us that  when he did these sessions Mr Taher would be present at the practice, but we doubt that he could properly supervise and assess Mr Mashkour’s clinical abilities and progress at such irregular and brief sessions; We appreciate Mr  Mashkour had only held one full-time clinical post since qualifying at the time of his application to the PCT  and we are sympathetic to Mr Mashkour in his difficulties in putting forward two suitable referees, but the regulations do go on to provide that  where it is not possible to provide two clinical  references, a full explanation and the  names and addresses of alternative referees can be given.

 

  1. However, Mr Mashkour did not provide any alternative references until the PCT contacted him about his unsatisfactory reference; he then suggested the  PCT should contact Mr Patel, but we have already indicated above why we do not consider Mr Patel’s reference refuted the reference from Mr Walsh.

 

  1. Mr Mashkour has also provided two more recent references since submitting

      his appeal. We consider the reference from Dr Riddell to be satisfactory

     (although it falls short of the requirement for three months continuous

      employment by one  week) but we do not consider the reference from Dr Beg,

      who supervised the once-weekly clinical teaching sessions which Mr

      Mashkour attended for two years, meets the criteria in the governing

      regulations. Therefore, we find that Mr Mashkour has failed to provide two

      satisfactory references in accordance with the governing regulations.

 

    6.  We are also concerned about the strength of Mr Mashkour’s commitment to

         CPD. He complained that the PCT had not given him the chance to discuss

         further training programmes; that he would not have minded at all and if the

         PCT could give him a clear programme of CPD he would do it. However, on

         closer questioning the evidence he gave leads us to doubt his motivation and

         commitment. Mr Patel indicated in his reference that Mr Mashkour had agreed

         to  maintain his CPD and to choose appropriate courses to satisfy GDC

         requirements and address his learning needs, but since completing his vocational

         training four months ago he has only attended one free evening talk on root

         canal treatment. In his evidence Mr Mashkour also qualified what he is prepared  

         to do by saying any courses would have to be held in the evenings or at the

         weekend. He mentioned a course in March 2005 about crowns and bridges, but

         he is not booked on it. He indicated to us that he would attend free courses this

         year and save up to try and go next year on a once-monthly course on cosmetic

         work, root canal treatment, veneers, crowns and bridges or possibly do a MSc at

         the Eastman Hospital or in Manchester, but we are concerned that he talked

         about going on advanced courses rather than addressing his basic clinical skills.

         Moreover, whilst we appreciate Mr Mashkour’s financial constraints, we

         consider that if he is really serious about wanting to improve his clinical skills,

         which he did agree with his Dental Advisor to do, at the very least he should

         have followed the PCT’s advice and by now have contacted his Dental Advisor,

         the PCT and the London Deanery to devise a  suitable CPD programme based

         on his particular clinical needs. We are concerned that he was simply telling us

         what he thought we wanted to hear rather than what he actually intends to do

         and we do not consider it is appropriate for him to place the onus on the PCT to

         provide a  programme for him to undertake; he needs to be pro-active in

         discussing and agreeing what clinical skills he needs to develop and address.

 

   7. We also consider that the PCT has acted appropriately throughout; it properly

 considered Mr Mashkour’s references, contacted him when there was a problem 

 and indeed went beyond its obligations in offering him a way forward and the

 opportunity to be reconsidered if he undergoes a programme of further

 professional development. We concur with the PCT’s submissions that it would

 have been failing in its wider duty to protect patients and the public if it had

       ignored Mr Walsh’s reference and allowed Mr Mashkour to join its list. Mr

       Mashkour submitted that there was a clear contradiction between his clinical

       reference from Mr Walsh and his second reference and the award of his

       vocational training certificate, but as Mr Curtiss pointed out, the governing

      regulations  require the PCT to obtain and consider references, which is what it

      did.

    

8.   The only concern we have about the PCT’s actions is that its pro forma reference

      does not provide for referees to be more specific about the amount of sessions

      worked. Mr Taher indicated he employed Mr Mashkour from October 2003 to

      date but not that this employment is only for irregular half-day sessions once a

      week. There is no space in the form for a referee to qualify or further explain for

      how many sessions he employs an applicant or whether or not he supervises or

      trains the applicant in any way. Although this does not strictly fall within our

      remit, we would ask the PCT to reconsider its pro forma with these considerations

      in mind.

 

9.  We note that the PCT wished it to be recorded that its offer of assistance remains

     open and we would urge Mr Mashkour to take up this offer. He is clearly making

     progress at his new practice but he should not renege or delay on his agreement

     with Mr Patel to maintain his CPD.

 

10.We have considered whether it would be appropriate for Mr Mashkour to be

     conditionally included on the PCT’s dental list,  but given our concerns relating to

     his motivation and commitment to undertake appropriate CPD, we consider this

     would impose an unduly onerous burden on the PCT to have to monitor his

     progress.

 

 

E. Conclusions

 

1.  Given that we do not consider Mr Mashkour has been able to provide two

     satisfactory clinical references in accordance with the criteria in the governing

     regulations and that we saw no real evidence of his willingness to honour his

     agreement with Mr Patel to maintain his CPD, we find that the Respondent’s  

     refusal to include the Appellant in its dental list was justified.

 

2.  Accordingly, we uphold the Respondent’s decision and dismiss the Appellant’s

     appeal.

 

 

F.  Appeal

 

     In accordance with Rule 42(5) of the Family Health Services Appeal Authority

     (Procedure) Rules 2001, we hereby notify the Appellant that he may have rights

     relating to appeals under Section 11 of the Tribunals and Inquiries Act 1992.

 

 

G.  Other Issues

 

     Mr Curtiss gave evidence that the PCT had not notified other interested parties

     of its decision  to refuse to admit Mr Mashkour on to its list of practitioners

     because his application was currently subject to appeal. However, we think that

     this must be incorrect because the governing regulations require a PCT to notify its

     decision to various persons or bodies and to let them know if a decision is changed

     on appeal and in its letter dated 28th September 2004 (pages 3-4 of the case

     papers)  the PCT  has indicated it has given such notification. Although we have

     not changed the PCT’s decision, given the progress Mr Mashkour has made in his

     new practice, and  provided he commences appropriate CPD, we would not want

     to see that progress impeded by this decision and should any of the persons or

     bodies notified of  the PCT’s decision have concerns about the outcome of this

     appeal we would ask  the PCT to apprise them of the new facts and this request.

 

 

 

 

Dated the                   day of                                                      2004

 

 

 

 

……………………………………..

Debra R Shaw

Chairman of the Panel