THE FAMILY HEALTH SERVICES APPEAL AUTHORITY                                                                                                  








(GMC Registration Number 2416997)









Application by the Applicant under section 49N(7) of the National Health Service Act 1977 (as amended by the Health and Social Care Act 2001) to the Family Health Services Health Authority (FHSAA) for a review of his national disqualification


Application dismissed.




A. Preliminary matters


  1. The appeal was heard by Mrs D Shaw  (Chairman), Dr P Garcha and Mr T Bennett at North Essex Mental Health Partnership NHS Trust Headquarters, Cuton Hall Lane, Springfield, Chelmsford, Essex.


  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:


Dr Kewel Kataria                                                -   The Applicant

Mr Charles Foster                                               -   Counsel for the Applicant

Mr David Harris, Hempsons                               -   Applicant’s solicitor

            Dr  Gerard Panting, Medical Protection Society-   Applicant’s witness

            Ms Clare Murray                                                 -   Counsel’s pupil

            Mr Peter Greenwood                                           -   Respondent’s representative

            Mr Angus Moon                                                  -   Counsel for the Respondent

            Mr Paul Booth, C & B Locums Ltd                     -   Respondent’s witness



B. History of the Applicant’s application                                                         


  1. By letter dated 10th September 2002, the Applicant applied to the North Essex Health Authority for inclusion in its supplementary list.


  1. In a letter dated 26th September 2002 the Respondent (being the successor in title to the North Essex Health Authority) informed the Applicant it was unable to include him in its supplementary list as he was nationally disqualified and if he wished to have that disqualification reviewed the appropriate authority to which he should apply was the FHSAA.


  1. By letter dated 26th November 2002 the Applicant’s solicitors, Messrs   

Hempsons, wrote to the FHSAA to request a review of his national disqualification.


  1. The Respondent’s solicitors, Messrs Clyde & Co, wrote to the FHSAA on

6th January 2003 with a Statement from the Respondent opposing the Applicant’s application on the following grounds:


(i)     the Applicant had unlawfully practiced as a locum in Scotland whilst he was disqualified 

(ii)    the Applicant had failed to provide any information or evidence to suggest that he fully understood and accepted the nature of the concerns of the National Health Service Tribunal which disqualified him in 1996, nor that he had taken any steps to address those concerns, or any evidence that he had been successful in doing so.


      5.   The Respondent also requested confirmation that the Applicant had disclosed

            his national disqualification and the reasons for it to all those for whom he had

            worked since it came into effect and asked for evidence of his Continuing

            Professional Development and Education (CPD) since 1996.


  1.  On 22nd April 2003 the Applicant’s solicitors wrote to the FHSAA enclosing Statements from the Applicant and his witness, Dr Gerard Panting, and the Applicant’s Skeleton Argument. (These will be considered below as part of the evidence submitted at the hearing.)


  1. On 25th April 2003 the Applicant’s solicitors wrote further to the FHSAA confirming:


    1. the Applicant’s expressions of remorse, contrition and changes of

      attitude  contained in his letter dated 10th September 2002

      demonstrated he had accepted and addressed the concerns  

      expressed by the NHS Tribunal

    1. the Applicant had not volunteered his national disqualification to

                        C & B Locums or to his employers since 1996. He would be making

                        submissions at the hearing regarding the need to do so in a non-NHS


    1. the Applicant did not have any documentary evidence of CPD  since 1996


  1. On 6th May 2003 the Respondent’s solicitors wrote to the FHSAA enclosing 

      the Respondent’s Skeleton Argument and Witness Statements from Wing

      Commander P J Schofield, Flight Sergeant Stuart Rae, Margaret Hanlon and

      Paul Booth. (These will be considered below as part of the evidence    

      submitted at the hearing.)


  1. The Chairman of the panel wrote to the parties on 9th May 2003 setting out the

      extent of the panel’s jurisdiction and explaining what the hearing could cover.

      The panel also set a time limit in the pre-hearing Directions in the event of

      either party wishing to raise an issue under the HRA, such issue to be set out

      in writing in full by 21st April 2003,  together with a copy of the legal

      authorities to be relied upon.


  1. Shortly before the hearing the Applicant’s solicitors submitted a supplementary Skeleton Argument and the Respondent’s solicitors submitted a supplementary Skeleton Argument in response. (See preliminary issues below.)


C. The Appeal


(i) Jurisdiction


  1. The Abolition of the NHS (Consequential Provisions) Regulations 2001

      A person who has been disqualified by the NHS Tribunal under The National

      Health Service Act 1977 in relation to all Health Authorities in England before

      14th December 2001, and whose right of appeal to the High Court has either

       lapsed or been exhausted by that date, will be treated from that date as having

      had a national disqualification imposed on him by the FHSAA. Such a person

      also has the right to have that disqualification reviewed by the FHSAA subject

      to certain periods of time having first ended (Regulation 4)


2.   Section 49N(7) of The National Health Service Act 1977 (as amended by the

      Health and Social Care Act 2001)    (The NHS Act)      

      The FHSAA may at the request of the person upon whom it has been imposed

      review a national disqualification and on a review may confirm or revoke it


(ii) Preliminary issues


      1.    Reconsideration of the original tribunal’s decision


1.1   There were preliminary submissions from the parties relating to whether

       section 49N(7) permitted the parties to re-examine or reconsider the original

       tribunal’s decision.


1.2   Counsel for the Applicant submitted there was authority for the review to

 cover what was equitable in all the circumstances and the panel could look at

 the original transcript of the 1996 hearing and reach its own conclusions

 (Rohatgi v Medical Tribunal of NSW & Anor (1994)  New South Wales Court

 of Appeal))


1.3   Article 6 of the Human Rights Act (HRA) could not apply in 1996 but it

 should apply to this tribunal’s consideration of the 1996 decision


1.4   Article 13 of the HRA provides for an effective remedy if the panel finds

       there has been an Article 6 violation; it was submitted this could be done by

       ameliorating the harshness of the original order


1.5  Counsel made some general criticisms of the original hearing, such as it

      proceeding in the Applicant’s absence and inappropriate findings of

      dishonesty and quoted various authorities in support of these submissions


1.6  He also made some specific criticisms of the handling of the individual cases

      the subject of the original tribunal


1.7  He concluded by submitting the original proceedings would have been Article

      6 flawed and the panel must now take into account legal and factual

      developments since the original hearing and suggested this appeal should be

      considered as a case of clinical failure in the respects found by the original

      tribunal, but without the seriously aggravating feature of dishonesty, and with

      all the subsequent mitigating features he had outlined


1.8  Counsel for the Respondent submitted there were three issues to consider;


          1.8.1            what “review” means (see 1.9 – 1.11 below)

1.8.2                        HRA issues (see 1.12 below)

1.8.3                        the practical consequences if Counsel for the Applicant was right (see 1.13 below)


       1.9  He did not accept the findings of the original tribunal against the Applicant

              were in any way unfair; the Applicant had been entitled to appeal the original

              decision in 1996 and he could not now seek to re-open matters


       1.10 Mr Foster’s submissions were wrong in law. Section 49N provides for a

               right of review and section 49M provides for a right of appeal and they are

               totally different procedures. Section 49N(7) only allows the panel to

               consider if the national disqualification is now appropriate


       1.11 Save in limited circumstances, which were not relevant to this case, section

               49N(7) only allows for a review to be requested two years after the national

               disqualification was imposed; section 49M(3) provides for appeal by way of

               redetermination of the original decision. The proper way for the Applicant to

               have challenged the original decision was to appeal under the statutory

               predecessor to section 49M or go to Strasbourg. The reliance on the word

               “review” in other contexts and quoting authorities in the wrong context did

               not assist. At this hearing the meaning of “review” was more limited; the

               panel must consider whether it was still appropriate for the Applicant to

               remain disqualified.


1.12    In R v Lambert (2001) and R v Kansal (2002) the House of Lords held it is

         not open to defendants convicted before the HRA came into force to open

         up matters of alleged incompatibility with Convention rights, which could

         always have been raised at Strasbourg, by taking the appeal to a higher

         court after the HRA came into effect. Mr Foster quoted Australian

         authorities which did not represent UK law. Counsel submitted it could not

         be correct to apply the requirements of the Convention to the 1996 tribunal

         when the Convention was not then incorporated by the HRA into UK law


1.13    If Mr Foster was correct it would be necessary to cross-examine the

         Applicant on the conduct of the 1996 hearing and examine the documents

         before the 1996 tribunal, in which event the Respondent would seek an



        [The hearing was adjourned to allow the panel to consider the above



1.14    The panel concluded that this hearing was a new application by the

         Applicant for the removal of his national disqualification. It was not

         persuaded at all by Mr Foster’s submissions; the panel considered “review”

         relates to the national disqualification as opposed to the proceedings leading

         to that sanction. As Counsel for the Respondent had pointed out, there was a

         separate appeal procedure for redetermination of the original decision which

         the Applicant could have pursued. His legal representatives at the time had

         told him they did not consider he had grounds to do so.


1.15    This FHSAA panel replaces the NHS Tribunal; it is a body of comparable

         standing as opposed to a higher authority or review body for NHS

         Tribunals and it does not have judicial function to review the original

         tribunal’s decision.


1.16    When the possibility of raising this preliminary issue had first been raised

         by the Applicant’s solicitors, the Chairman of the panel wrote to the parties

         setting out the extent of the panel’s jurisdiction and explaining what this

         hearing could cover. The panel also set a time limit in the pre-hearing

         Directions in the event of either party wishing to raise an issue under the

         HRA and for submitting legal authorities to be relied upon (see section B

          paragraph 9 above). Accordingly, putting aside the issue of the different

          interpretation by the Applicant’s legal representatives to the Chairman’s

          explanation of what this hearing is intended to cover, the panel considered it

          was discourteous of those representatives to fail to respond  to the

          Chairman’s letter and ignore the time-limit in the Directions until they made

          last-minute submissions on these issues just before the hearing and to

          present a whole file of authorities at the hearing itself. Notwithstanding, in

          giving the panel’s decision on this preliminary issue, the Chairman

          reassured the Applicant that this would not in any way affect the panel’s

          consideration of the merits of his application and the panel was fully aware

          of its importance and the effects of its decision on his professional and

          personal life. 


  1. Acceptance into evidence of Witness Statements when witnesses not present


[Although this issue was raised during the hearing we have dealt with it here for ease of reference]


2.1  Counsel for the Respondent asked the panel to accept the Witness Statements

      from Wing Commander P J Schofield, Flight Sergeant Stuart Rae and

      Margaret Hanlon without having to call them to give oral evidence. He

      submitted that what they had said about the Applicant not revealing his

      national disqualification to his employers was not disputed by the Applicant,

      who now accepted he had been wrong not to do so.


2.2  The only issue on which the witnesses were not present to be questioned was

      whether if they had been told, they would have employed Dr Kataria, who had

      given evidence that he did not know if this would have been the case.


2.3  Section 41(6) of the Family Health Services Appeal Authority (Procedure

     Rules) 2001 (The Procedure Rules) allows the panel to receive evidence on any

     fact which appears to it to be relevant, notwithstanding that such evidence

     would be inadmissible in proceedings before a court of law.


2.4  He also pointed out that in their letter dated 25th April 2003, the Applicant’s

      solicitors had stated “…we would presume that the Health Authority’s

      solicitors will not seek to call oral evidence from the five persons indicated if

      such evidence is restricted to the issues detailed in their letter to you of 17

     April 2003”. He submitted this was tantamount to an invitation to the

     Respondent not to call oral evidence.


2.5  Counsel for the Applicant accepted the panel had jurisdiction to admit these

      Witness Statements but asked for them to be disregarded as he would have

      wanted to question the witnesses on the positive aspects of Dr Kataria’s

      employment. He submitted it would be most equitable for the statements to be



    [ The hearing was adjourned to allow the panel to consider the above



2.6  The panel concluded that it would admit the Witness Statements in evidence under The Procedure Rules on the basis they preferred to have as much evidence as possible and they would attach the appropriate amount of weight to hearsay evidence. For example, they noted from Flight Sergeant Rae’s evidence that he only became Practice Manager at RAF Odiham and met Dr Kataria in Jauary 2002, although Dr Kataria had been working as a locum  there for several weeks between September and December 2001, which indicated he had continued to be invited back. They also noted there were no official complaints in the Witness Statements about Dr Kataria’s clinical competence.



(iii) Evidence


  1.  Dr Panting


1.1    Dr Panting confirmed the content of his Witness Statement was true. He had

advised Dr Kataria in 1996 and appointed solicitors who had instructed Counsel on his behalf.


1.2    He was aware Dr Kataria had worked for around six weeks as an NHS GP in Scotland and he submitted he understood that Dr Kataria had stated his legal advisers had informed him that the national disqualification had no effect in Scotland. He accepted Dr Kataria was under the impression that his working in Scotland did not constitute a breach of his national disqualification both at the time of events and when Dr Kataria first approached him for assistance with this application.


1.3    He had not advised Dr Kataria at the time that this was the position; nor had he any recollection of being present when Dr Kataria might have been given such advice, although he recalled a conference did take place immediately following the Tribunal’s decision, the main purpose of which would have been to discuss whether there were any grounds of appeal. 


1.4    He had some recollection that around the time of events he was led to believe that Dr Kataria had been advised by his lawyers that the national disqualification would have no effect in Scotland; he could not remember when or by whom he was given that impression but thought it likely Dr Kataria had told him he had been given that advice by his lawyers.


1.5    He did not know of any documentary evidence in existence which confirmed  Dr Kataria’s belief he could work as an NHS GP in Scotland. He knew Dr Kataria’s present solicitors had attempted to retrieve his files from the original instructed solicitors but they had not proved possible to retrieve.


1.6    Although he had not advised Dr Kataria on the point, he had not known the national disqualification extended to Scotland.


2.  Dr Kataria


      2.1 Dr Kataria confirmed the content of his Witness Statement was true. In view

            of the stress he was under and his state of mind at the time, he fully accepted

            that his evidence at the original Tribunal may have appeared to be inconsistent

            on various issues, but it was never his intention to give untruthful evidence.


2.2    He had never intended to practice as a NHS GP in contravention of the

       disqualification order; following that decision his legal advice had been that

       the order only applied to England and Wales and he could therefore still work

       in Scotland. It was only when he contacted the Respondent last year to

       enquire about applying for the disqualification order to be reviewed that he

       was told the order applied in Scotland. He regretted and apologized for any

       inadvertent  breach of the order.

2.3    Between September 2001 and October 2002 he had worked as a civilian

       medical practitioner in the Armed Forces, in various RAF medical centers and

       Army barracks. He described the work he was required to do there and the

       records of the consultations that he kept. As far as he was aware, during his

       work for the Forces there had been no complaints or claims made against him

       or any other criticism of his professional conduct or competence. Some of the

       RAF centres were also training practices and, wherever possible, he would

       attend case conferences with other colleagues and use library facilities. He

       had kept himself up to date by reading medical journals and magazines.


2.4    He had been ill since October 2002 and undergone coronary by-pass surgery

       in February 2003. His health had now improved and he was anxious to return

       to medical practice. He had four children to support and had suffered greatly

       since the disqualification order over six years ago. He accepted the findings of

       the NHS Tribunal in respect of the individual complaints and fully

       appreciated the deficiencies identified and would not act in the same way in

       the future.


2.5    After Dr Kataria had been disqualified he had considered his actions and

       mistakes, what he had done and what he should do. He had initially worked

       part-time for the Disability Benefits Agency, then ran and managed his own

       small health and weight management clinic for eighteen months, then worked

       in Scotland as a locum GP for six weeks, before undertaking locum work in

       the Armed Forces.


2.6    He had not told locum agencies of his disqualification as he remained GMC  

       registered and his legal representatives had told him it would only prevent

       him from NHS general practice, so he had not considered it was relevant

       when he applied for posts in the Armed Forces in 2001 and 2002. Although

       there were no questions on C & B Locums’ application form or any other

       paperwork he was asked to complete about such matters, he now accepted he

       should have disclosed his disqualification to the locum agency and to

       employers and followed the guidance in ‘Good Medical Practice’ issued by

       the GMC, which stipulates doctors must not write or sign documents which

       are false or misleading because they omit relevant information.


2.7    If his disqualification was revoked he would like to work as a locum on the

       Armed Forces as it was less stressful than general practice and he would not

       have to manage and organize a practice.


2.8    There had not been any patient complaints against him since 1996.


2.9     He accepted the Tribunal’s findings and that they were very serious matters

        and a serious indictment of his practice as a doctor.


2.10 Before he had been disqualified he had not had an appointments system at his

              practice, he had worked with a midwife once a week and he had only had

              half-time receptionists as the Health Authority at the time would not give him

              an increase in salary for receptionists or fund him for a computer. For his

              CPD there had been lunchtime lectures twice a week and meetings in

              hospitals on Saturday mornings. He had also attended certain courses.


2.11 Since 1996 he had attended some local lectures but had been unable to attend

    regular postgraduate lectures or courses due to time and financial constraints.

    He had kept up to date by reading magazines such as the BMJ but he had not

    been in one place long enough to contact the Postgraduate Dean’s office or

    any tutors at local post-graduate centers for advice regarding CPD. Although

    the nearest such centre was only four miles from his home he did not have

    the time to attend. He was also away from home when working for the

    Armed Forces. Moreover, he did not have sufficient income to go on any

    recognized courses. When he worked for the Armed Forces he had case

    discussions with his other colleagues there once or twice a week. He had

    planned to attend some courses but he had been ill since October 2002; now

    he had recovered he planned to attend some. The locum agency had advised

    him to become computer-literate as he had experienced difficulties in the first

    couple of posts it had placed him in; he had then learned with a computer at a

    friend’s practice and a receptionist had helped him for a couple of days at one



2.12 He had been employed in the Armed Forces for over a year without any

          complaints but he could not get any testimonials once employers found out

          about his disqualification.


3. Mr Booth


3.1    Mr Booth confirmed the content of his Witness Statement was true. He was a

      director of C & B Locums Ltd which provided locum GPs, particularly for

      work as Civilian Medical Practitioners at military bases, including RAF bases.


3.2    His agency had found Dr Kataria employment on an ad hoc basis within

       military medical centers throughout the UK between September 2001 and

       October 2002. At the time it had not been the agency’s practice to ask doctors

       to complete any form asking, inter alia, whether or not they had ever been

       subject to any suspension from practice or professional disqualification,

       although it now did this when doctors first registered with the agency.


3.3    The agency was aware Dr Kataria was not on the supplementary list of any

       health authority but this was not a requirement for non-principal GPs working

       in general medical services until June 2002. Even then it was still not a

       requirement for work at military medical centers as a Civilian Medical

       Practitioner, although it now was.


3.4    If he had known of Dr Kataria’s disqualification he would not have registered

       him with the agency or been prepared to find him employment. He only found

       out about it when a military client informed the agency, whereupon he

       removed Dr Kataria’s file from the agency’s records.


3.5    The feedback he received from clients about Dr Kataria was mixed. He was

             not liked by all the clients but some did like him and asked for him again

             when vacancies arose.


3.6    He had understood from Dr Kataria’s CV that he had previous experience and

       he could work as a GP. There was no mention of his disqualification on the



3.7    He had advised Dr Kataria around September or October 2002 that RAF

        stations were now introducing a requirement for supplementary lists to be

        used, so if he wished the agency to continue to place him he would have to

        join a supplementary list. Dr Kataria had not revealed his disqualification

       during this discussion.


3.8    Although it was now the agency’s practice to take up references he could not recall if the agency had taken them up for Dr Kataria; there were none on his

file save for subsequent completed tick-box references from agency clients he had worked for. The majority were good and a couple were satisfactory; some clients said they would employ Dr Kataria again.


(iv) Closing Statements


1.            Counsel for the Respondent


1.1        Section 49F(2) of The NHS Act states a practitioner may be removed from

         the medical list if his continued inclusion in the list would be prejudicial to

         the efficiency of the services in question. The panel must therefore consider

         if this would still be the case if Dr Kataria was allowed onto the

         supplementary list.


1.2        The Respondent submitted this would still be the case as the Applicant did not seem to know the difference between right and wrong. This had been the case in 1996 and it still was, because whether or not it had been lawful to work in Scotland and for the Armed Forces, it was not proper or right for Dr Kataria to conceal the fact of his disqualification. The GMC guidance made it clear he should not omit this relevant information, but he had done so.


1.3        Dr Kataria now said he realized he was wrong, but between September 2001

         and October 2002 he concealed this information in eleven jobs. Accordingly,

         Counsel submitted Dr Kataria had not learned the lessons of the 1996

         tribunal and he had put his own interests first. He seemed to lack insight into

         when something was wrong until it was pointed out to him, but a doctor’s

         moral conduct should not need prompting by others.


1.4        Dr Kataria had failed to demonstrate he was sufficiently up to date in the

         practice of medicine to allow his 1996 disqualification to be revoked; he had

         failed to make any contact with his local post-graduate Dean or to attend any



1.5        In Dr Gosai v The GMC (2003) the Privy Council had ruled it was essential

         for public confidence in professionals to be maintained.


1.6        Counsel submitted that Dr Kataria did not have true insight to enable him to

         distinguish between appropriate and inappropriate conduct and accordingly,

         the panel should dismiss his application.


2.            Counsel for the Applicant


2.1        There was a difference between this panel’s function and the function of the

         GMC. Ethical objections were properly considered by the GMC’s Ethics

         Committee and Counsel for the Respondent had failed to show the

         Applicant’s failure to distinguish between right and wrong impinged on the

         services he was providing.


2.2        The GMC had investigated the complaints against Dr Kataria but not

         censured him at the time as it had not considered the complaints to be

         sufficiently serious. The complaints were now very elderly allegations and

         had arisen when Dr Kataria was a very hard-pressed single practitioner.


2.3        If Dr Kataria had disclosed his disqualification he would have been unable to



2.4        Counsel for the Respondent criticized the Applicant for failing to keep

         sufficiently up to date with his CPD, but his national disqualification

         prevented him from doing so.


2.5        It was not the panel’s job to take into account the effect of Dr Kataria’s

         actions on public confidence; this had been a matter for the GMC and they

         had decided not to censure Dr Kataria.


2.6        The evidence relating to Dr Kataria’s conduct since he was disqualified was

         not particularly worrying. The unchallenged evidence of Dr Kataria and Dr

         Panting was that he had then been told disqualification did not extend to

         Scotland. Accordingly, it seemed harsh to criticize him for obtaining a post



2.7        There was no evidence that Dr Kataria ever lied to the locum agency or his

         employers about his disqualification; he was never asked. If the question was

         never raised there was no reason for Dr Kataria to imagine it was relevant.


2.8        The relevant paragraph in ‘Good Medical Practice’ was headed ‘Writing

         reports, giving evidence and signing documents’. It was arguable that

         heading qualifies to which documents it relates; there was no evidence in this

         instance that Dr Kataria signed any such document. This was GMC territory

         and it would be wrong in law for the panel to take it into account.


2.9        Dr Kataria’s evidence about his CPD was that wherever facilities were

         readily available to him he went along to them. It was arguable that he should

         have made some effort to contact his local post-graduate center but that was

         not sufficient reason to refuse his application.


2.10    Mr Booth gave evidence he received favourable tick-box references and there

        were no complaints.


2.11    The panel should take into account the Applicant’s difficult personal

         circumstances and his dire financial straits.


2.12    The Applicant had indicated he did not intend to work in the NHS and he

         only wanted to do RAF work. He now needed to be on a supplementary list

         to do that. His working for the Ministry of Defence could not possibly be

         prejudicial to NHS services. Accordingly, it was unlawful to keep him off the



2.13    Finally, a long time had elapsed since the original decision which related to

         very old allegations, Dr Kataria had served time and learned his lesson and

         he now deserved to once more earn his living in medicine.


3.            Counsel for the Respondent in response


3.1        The GMC’s findings had not mirrored those of the original tribunal. The GMC had not dealt with the same number of allegations.


3.2        The summary in the Applicant’s supplementary skeleton argument of the

original allegations made against Dr Kataria had been dangerously selective.


D. Consideration of the Evidence


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

         our remit was to assess whether on the balance of probabilities Dr Kataria’s

         conduct and actions since the original tribunal’s decision justified the

         revocation of his national disqualification and his re-inclusion in the list

         would not be prejudicial to the efficiency of NHS services.


2.            We first considered Dr Kataria’s employment in Scotland as a NHS GP locum for six weeks in July and August 2001 in breach of his national disqualification. We were not inclined to place any weight on Dr Panting’s evidence relating to Dr Kataria’s belief his disqualification did not extend to Scotland as it was extremely vague hearsay testimony without a scintilla of hard evidence to back it up. We thought it was unlikely that Dr Kataria’s legal representatives would have failed to check this point and be completely wrong when the position was clearly spelt out in section 31 of the NHS (Scotland) Act 1978. We also noted that Dr Kataria had been unable to produce any written confirmation or note of this advice to support his evidence.


3.            Even if we gave Dr Kataria the benefit of the doubt and accepted he was

         genuinely under the impression his disqualification did not extend to

         Scotland, this would not have affected our decision as there were other

         factors as mentioned below to take into account.


4.            We went on to consider whether Dr Kataria should have disclosed his

         disqualification to the locum agency and his employers. We acknowledged

         that apart from his Scottish post, none of the employment Dr Kataria obtained 

         was within the NHS and no-one thought to question him about his status.

         However, whilst we understood why Dr Kataria might not wish to volunteer

         this information, we considered good practice dictates that Dr Kataria should

         have disclosed the disqualification and we agreed with the submissions of

         Counsel for the Respondent that Dr Kataria had put his own interests first,

         that a doctor’s moral conduct should not need prompting by others and that it

         was essential that public confidence in the professions be maintained. Dr

         Kataria must have known that if he revealed his status there was every chance

         the locum agency and his employers would not have taken him on. This was

         borne out by the Witness Statements of Wing Commander Schofield, Paul

         Booth and Margaret Hanlon. The GMC ‘Good Medical Practice’ booklet

         makes it clear that doctors must not write or sign documents which are false

         and misleading because they omit relevant information and yet we felt Dr

         Kataria did precisely that when he prepared and submitted his CV to the

         locum agency and he continued to be economical with the truth and to

         conceal his status in September or October 2002 when the locum agency

         advised him he would need to join the supplementary list if he still wished to

         be considered by the armed forces.. We did not accept his Counsel’s

         submission that the heading of the relevant paragraph in the GMC booklet

         meant this duty did not extend to his CV..


5.            We also considered Dr Kataria’s failure to undertake any CPD. He had not

        attended any courses or attempted to contact his local post-graduate centre

        although it was close to his home. He submitted this was because he was

        working in different places for the Armed Forces but we noted he did not 

        commence that work until September 2001 and then it was often part-time.

        Counsel for Dr Kataria submitted that the evidence about his CPD was that

        wherever facilities were readily available to him he went along to them, but

        we did not accept that to be the case. In our opinion, merely to read

        magazines and journals such as the BMJ and to attend case discussions with

        his colleagues once or twice a week when he worked for the Armed Forces

        did not constitute adequate CPD. Dr Kataria had not worked within the NHS

        for almost seven years and his priority should have been to ensure he

        complied with the GMC requirement for practitioners to keep their

        professional knowledge and skills up to date and to provide evidence that he

        had attempted to address some of the concerns that had been raised in 1996.

        As a GP this could have been done as either ‘Portfolio’ based learning or by

        establishing a Personal Professional Development Plan, in either of which the

        evidence of professional learning could have been collated. We appreciated

        Dr Kataria might have been financially constrained from attending some

        courses, but we considered that at the very least he should have contacted his

        local post-graduate centre at an early opportunity to discuss how he could best

        maintain his CPD in the light of his particular circumstances. Although the

        onus to take this step rested with Dr Kataria, we felt he could have been better

        served by his advisers in this regard. Dr Kataria told us he had planned to

        attend some courses but he had been ill since October 2002; now he had

        recovered he planned to attend some. However, we noted he had done nothing

        since 1996 and we were concerned he was simply telling us what he thought

        we wanted to hear rather than what he actually intended to do.


6.            We also noted that whilst there were no official complaints relating to Dr

         Kataria’s clinical competence there were some complaints about his lack of

         computer skills and the locum agency had told him to become computer-

         literate as he had experienced difficulties in the first couple of posts it had

         placed him in.  To address this problem Dr Kataria told us he had learned

         with a computer at a friend’s practice and a receptionist had helped him for a

         couple of days at one job. Again, we felt that this was not good enough; if Dr

         Kataria was serious about addressing his shortcomings and wanted to show

         his re-inclusion in the list would not be prejudicial to services, he should have

         arranged to obtain proper tuition or to attend a course to remedy this problem

         and ensure he was sufficiently computer-literate.


7.            Moreover, we were concerned that Dr Kataria had failed to provide any references or testimonials since 1996. Whilst we note he was never in one place for very long, he did undertake eleven jobs (ten in the Armed Forces and one in Scotland) and yet he never obtained an up to date reference which we consider would have been an important indicator of his recent professional competence. It was not enough to state there had been no complaints or claims against him or any other criticism of his professional conduct or competence as far as he was aware; we were looking for some positive feedback and detailed comment on his recent work.


8.            Counsel for Dr Kataria submitted he does not intend to work again in the

         NHS and he only wants to do RAF work, for which he now needs to be on a

         supplementary list. He contended working for the Ministry of Defence could

         not possibly be prejudicial to NHS services and it would therefore be

         unlawful to keep Dr Kataria off the list. Whilst we accepted this might be Dr

         Kataria’s present intention, we do not have power in an application of this

         nature to impose conditions restricting Dr Kataria’s practice to non-NHS

         posts of this nature. Once he is included in the supplementary list he would be

         entitled to change his mind at any time about the type of work he wishes to do

         and we felt it was disingenuous of Counsel to have indicated it would now be

         unlawful to keep him off the list.


9.            Our prime concern was that we did not consider there had been any robust documented or oral evidence to show Dr Kataria had moved on since 1996 and taken real steps to demonstrate he had learned from his mistakes and

         addressed his shortcomings with a view to having his national disqualification

         revoked. We hope that he will take note of our observations and take steps to

         address our concerns to improve his future chances of having his

         disqualification revoked should he wish to reapply for a review in the future. 


E. Conclusion


For all the above reasons we confirm the Applicant’s removal from all lists as ordered by The National Health Service Tribunal of 25 November 1996.





F. Appeal


Finally, in accordance with Rule 42(5) of the Family Health Services Appeal Authority (Procedure) Rules 2001, we hereby notify the Applicant that he may have rights relating to appeals under Section 11 of the Tribunals and Inquiries Act 1992.





Dated this         day of                   2003             






Debra R Shaw

Chairman of the Panel