IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY                  CASE NO.11575

 

 

Mr G T Carney - Chair

Dr P S Garcha  - Professional Member

Mrs V E M Barducci - Member

 

 

B E T W E E N :

 

DR SISIR KUMAR GHOSH

(GMC Number 1719077)                                          

Appellant

 

- and –

 

 

GREENWICH TEACHING PRIMARY CARE TRUST

Respondent

 

 

DECISION

 

 

1                     This is an appeal by Dr Sisir Kumar Ghosh (“Dr Ghosh”), against the decision of the Greenwich Teaching Primary Care Trust (the “PCT”) to remove his name from its list of general practitioners pursuant to Regulation 10 of The National Health Service (Performers List) Regulations 2004 (“the Regulations”).

2                     For the reasons set out below the decision of the Panel is that the appeal is dismissed.

3                     After reaching our decision in the substantive appeal we considered whether or not there should be a National Disqualification of Dr Ghosh under Section 49N(1) of the National Health Services Act 1977 as amended (the “Act”).

4                     The decision of the Panel is that, for the reasons set out below, Dr Ghosh shall be disqualified from inclusion in any medical performers list as is described or referred to in Section 49N(1) of the Act.  We further direct that a copy of our decision shall be sent to the several bodies listed in Rule 47(1) of the Family Health Services Appeal Authority (Procedure) Rules 2001 (“the Rules”).

REASONS;  The Substantive Appeal

 

BACKGROUND MATTERS

5                     The appeal was heard by Mr G T Carney (Chairman), Dr P S Garcha and Mrs V E M Barducci at the Care Standards Tribunal, 18 Pocock Street, London SE1 0BW, on the 9 March, 5 April, 11, 12 and 13 May and the 16 and 17 June 2005.  The hearings on the 9 March and 5 April were to deal with preliminary applications and directions.

6                     Prior to the hearing all three members signed a declaration confirming that 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.  This was re-affirmed and confirmed to the hearing on the 11 May 2005.

7                     At the hearing held on the 9 March 2005 Dr Ghosh was represented by Mr Giles Collins of Counsel and the PCT by Mr Duncan Gordon-Smith, Solicitor for the PCT.  At the hearing on the 5 April 2005 Dr Ghosh was represented by Mr Martin Forde of Counsel and the PCT by Mr Oliver Sanders of Counsel.  On all the remaining days of the hearing Dr Ghosh was represented by M Martin Forde of Counsel and the PCT by Mr Neil Garnham QC.

8                     Dr Ghosh qualified in 1970.  Dr Ghosh has practised in the Greenwich Primary Care Trust area since 1980.

9                     On the 12 October 2004 the PCT wrote to Dr Ghosh informing him that it was currently considering whether or not to remove him from its Performers List pursuant to Regulation 10 of the Regulations. 

10                 An oral hearing to consider Dr Ghosh’s removal from the PCT’s Performers List was held on the 11 November 2004.  Dr Ghosh attended that hearing together with his representative Mr John Williamson from the Medical Defence Union. 

11                 By way of a letter dated 22 November 2004 the PCT informed Dr Ghosh that its panel had unanimously decided that he should be removed from the PCT’s Performers List on the grounds that:

(i)                  His continued inclusion in the Performers List would be prejudicial to the efficiency of the services which those included in the Performers List perform; and

(ii)                 He was unsuitable to be included in the PCT’s Performers List.

12                 By way of a letter from his solicitors dated 7 December 2004 Dr Ghosh appealed to the FHSAA including, inter alia, a concise statement of the grounds of his appeal.

13                 On the 7 January 2005 the PCT informed the FHSAA of its intention to oppose the appeal lodged on behalf of Dr Ghosh and at the same time lodged a statement of grounds on which the PCT intended to rely in opposing the appeal.

 

THE LAW

14                 Prior to the 1 April 2004 Dr Ghosh’s name was included on the PCT’s Medical List. By virtue of paragraph 2 of Schedule 1 of the Regulations, Dr Ghosh’s name was transferred to the PCT’s Medical Performers List with effect from that date.

15                 The power to decide to remove the name of a practitioner from the list of general practitioners maintained by a PCT had formerly been provided by Section 49F(1)(a) of the Act.  That sub-paragraph was repealed by Section 196 and Schedule 14 Part 4 of the Health and Social Care (Community Health and Standards) Act 2003.  That repeal took effect from the 1 April 2004.

16                 The new power to remove a practitioner’s name from the Performers List is provided by Regulation 10 of the Regulations which provides as follows;

(3)            The Primary Care Trust may remove a performer from its Performers List where any of the                conditions set out in paragraph (4) is satisfied.

(4)            The conditions mentioned in paragraph (3) are that

(a)                 his continued inclusion in its Performers List would be prejudicial to the efficiency of the services which those included in the relevant performers list perform (“an efficiency case”);

(b)                 he is involved in a fraud case in relation to any health scheme;  or

(c)                 he is unsuitable to be included in that performers list (“an unsuitability case”)”.

17                 A PCT contemplating removing a practitioner’s name from a list must give him notice that it is considering doing so.  Regulation 10(8) provides;

            Where a Primary Care Trust is considering removing a performer from its performers list under             paragraphs (3) to (6)……. it shall give him

(a)                 notice of any allegation against him;

(b)                 notice of what action it is considering and on what grounds;

(c)                 the opportunity to make written representations to it within 28 days of the date of the notification under sub-paragraph (b);  and

(d)                 the opportunity to put his case at an oral hearing before it, if he so requests, within the 28 day period mentioned in sub-paragraph (c).”

18                 Paragraph 11 of the Regulation sets out the criteria for the decision on removal.  Paragraph 12 of the Regulation deals with the circumstances in which the PCT can order contingent removal.

19                 A practitioner has a right of appeal against that decision.  Regulation 15 provides:

(1)                A Performer may appeal (by way of re-determination) to the FHSAA against a decision of a Primary Care Trust mentioned in paragraph (2) by giving notice to the FHSAA.

(2)                The Primary Care Trust decisions in question are decisions….(d) to remove the performers under Regulations….10(3)….

(3)                On appeal the FHSAA may make any decision which the Primary Care Trust could have made”.

 

APPELLANT’S CASE

20                 Dr Ghosh’s grounds of appeal were set out in the concise statement of grounds of appeal submitted with his notice of appeal and a supplementary concise statement of grounds of appeal submitted as a result of a direction of this Panel.  The arguments put forward in those grounds of appeal were as follows;

(1)                That removal of Dr Ghosh’s name from the List was premature, unreasonable and wholly disproportionate.  In support of this it was contended;

(i)                   that Dr Ghosh had been referred to the Committee on Professional Performance of the General Medical Council (“GMC”) and that at a hearing on the 25 January 2005 the Committee on Professional Performance (“CPP”) had determined that conditions should be imposed on Dr Ghosh’s registration.  It was further contended that the CPP had reconsidered his case on three occasions, on the last of which in September 2004 it had decided to suspend Dr Ghosh’s Registration for a period of six months from the 3 October 2004.  In these circumstances the GMC had not considered that immediate suspension was necessary, in fact Dr Ghosh has appealed the decision of the CPP and that appeal has yet to be determined.

(ii)                 It was further contended that the CPP (or its successor) are to reconsider Dr Ghosh’s case in 2005 and have stated that at that time they would expect to receive evidence from Dr Ghosh of his continued efforts to improve his performance.  It was pointed out that Dr Ghosh was due to sit the Knowledge MCQ in February 2005 and was due to attend the Deanery’s Fresh Start course on the 9 and 10 December 2004.

(iii)                It was also contended that in the light of the fact that the GMC process was still ongoing and, it was clearly envisaged that Dr Ghosh should be given a further opportunity to satisfy the GMC’s conditions, it was perverse and disproportionate for the PCT to remove Dr Ghosh from its Performers List and that the public could be properly protected by the imposition of conditions.

(iv)                It was also contended that the PCT’s decision to remove Dr Ghosh’s name from its Performers List would affect his ability to fulfil the GMC’s conditions, and this again made the decision to remove his name unreasonable and perverse.

(2)                That the procedures adopted and consequently the decision taken to remove Dr Ghosh’s name from the Performers List were unfair to Dr Ghosh, and in particular it was contended as follows:

(i)                   That the PCT’s decision to suspend Dr Ghosh from its Performers List taken on the 17 August 2004 followed the receipt by the PCT of a letter dated the 4 August 2004 from Dr Ghosh’s former colleague Dr Essien.  It was argued that the letter which was sent immediately following a dispute between Dr Ghosh and Dr Essien over financial matters contained a number of anonymised undated and unsubstantiated allegations regarding Dr Ghosh’s treatment of certain patients.

(ii)                 It was further contended that the PCT had stated that the decision had been taken to suspend Dr Ghosh whilst Dr Essien’s allegations were investigated.  In fact, no such investigation took place and no further details or evidence were produced or relied upon in support of those matters by the PCT.  Notwithstanding this, reference to those matters were made in the statement of case, the supporting documents and the oral submissions made by the Investigating Officer, Mr Burden, before the panel at the hearing on the 11 November 2004.  It was contended that the inclusion and referral to those matters was unfair and prejudicial and would have, or may have, influenced, consciously or subconsciously, the decision of the panel to remove Dr Ghosh’s name from the Performers List.

(iii)                It was further contended that the prejudice and unfairness to Dr Ghosh caused by the references to the allegations by Dr Essien was compounded by the fact that two of the PCTs’  members from the hearing at which a decision to suspend Dr Ghosh was taken by the PCT based largely on Dr Essien’s allegations, also sat on the PCT’s  panel who decided to remove Dr Ghosh’s name from the Performers List on the 11 November 2004.  It was contended that these two members were likely to have been biased against Dr Ghosh as a result of having sat on the suspension panel.

(3)                That the procedure adopted by the PCT was unfair and in breach of the statutory rules in that the PCT failed to give Dr Ghosh proper notice of the allegations against him in accordance with Regulation 10(8)(a) of the Regulations before taking a decision to remove him, nor did it allow Dr Ghosh 28 days in which to make written representations before the hearing in accordance with Regulation 10(8)(c) of the Regulations.  In particular it was stated that Dr Ghosh received a letter from the PCT dated 12 October 2004 together with a bundle of documents by courier on the 14 October 2004.  The statement of case referred to in the letter was not included.  The statement of case was not provided until Dr Ghosh’s then solicitor made a written request for the said document which contained full details of the allegation against him.  The document was received by facsimile on the 27 October 2004.

(4)                That the procedures adopted by the PCT were inherently unfair and contrary to the principles of natural justice and/or Article 6 of the Human Rights Act in that Dr Ghosh was not permitted to be legally represented at the hearing on the 11 November 2004 despite the seriousness of the consequences for him and the fact that his rights were affected and/or determined.

(5)                In the supplementary Concise Statement of Grounds of Appeal it was confirmed that Dr Ghosh challenged the PCT’s  conclusions that the continued inclusion of his name in the Performers List would be prejudicial to the efficiency of medical services, and further, that Dr Ghosh was unsuitable to be included in the Performers List.

(6)                That the public would have been adequately protected by the imposition of conditions by the PCT on Dr Ghosh, and that if this had been done Dr Ghosh would have been able to resume work for the benefit of his patients, and the medical profession generally.   Further, that the decision of the PCT to remove Dr Ghosh was demonstrably premature and disproportionate and had thwarted the clear intention of the GMC, who themselves have to act in the public interest.

 

THE RESPONDENT’S CASE

21                 In the PCT’s response to Dr Ghosh’s grounds of appeal it was contended on behalf of the PCT;

(1)                That Dr Ghosh had practised in the PCT’s area since around 1980.  That in the past there had been a number of concerns around his list size and his failure to address those concerns in a satisfactory and expeditious manner.  Those concerns were set out in detail, but for the purposes of this decision we do not prepare to set out every detail, but will set out the principle ones:

(i)                   The PCT became aware of information that gave arise to concerns about Dr Ghosh’s clinical practice.  The information included the findings of the CPP on the 5 January 2002 when it was noted with particular concern;

Dr Ghosh’s history of taking and examination skills;

Dr Ghosh’s referral practices;

Dr Ghosh’s keeping of medical records;

Dr Ghosh’s follow-up of patients with chronic conditions;

the lack of appropriate emergency drugs kept available by Dr Ghosh in his practice;

Dr Ghosh’s reliance on the ambulances;

a lack of systematic plan for maintaining knowledge and skills;  and

the absence of clinical audit of his practice.

 

                        As a result of its concerns the CPP placed conditions on Dr Ghosh’s continuing                                 registration.

(ii)                 That the CPP reconsidered the matter on the 7 May 2003 when it found that thwas still a substantial amount of work to be undertaken by Dr Ghosh in addressing the deficiencies previously identified.  The CPP placed further conditions on Dr Ghosh’s continuing registration.

(iii)                By a letter dated the 24 June 2003 Dr Mary Spencer raised concerns about Dr Ghosh’s clinical performance and core knowledge based on a series of practical training sessions which he had taken with a view to gaining to the Diploma of Family Planning and Reproductive Health Care.

(iv)                That on the 21 July 2003 the GMC’s Professional Conduct Committee considered concerns that had been raised by Dr Ghosh’s prescribing.  Restrictions were placed on Dr Ghosh’s registration including a restriction on prescribing of drugs of addiction.

(v)                  That in December 2003 Dr Ghosh took the MCQ Component of Summative Assessment and that Dr Ghosh scored only 48% when the pass mark was 70% and where 94% of those taking the examination had passed it.

(vi)                At a hearing before the CPP on the 9 February 2004 the CPP concluded that a great deal of work remained to be carried out to deal with the clinical deficiencies in respect of Dr Ghosh’s practice.  Similar conditions to those imposed before were placed on his continuing practice.

(vii)               On the 6 May 2004 a panel appointed by the PCT considered the contingent removal of Dr Ghosh from its Performers List.  As a result of the concerns about Dr Ghosh’s clinical ability the panel decided that Dr Ghosh’s inclusion on the PCT’s Performers List was prejudicial to the efficiency of services provided by him.  However, the panel concluded that any prejudice to the efficiency of their services could be prevented by the imposition of conditions.  The PCT imposed conditions on Dr Ghosh’s inclusion on its Performers List.

(viii)             Dr Ghosh appealed to the FHSAA against the PCT’s decision to contingently remove him from the Performers List.  The PCT agreed to review its decision in relation to the imposition of four of the conditions imposed and Dr Ghosh withdrew his appeal.

(ix)               The PCT received a letter from Dr A R Essien dated 4 August 2004.  Dr Essien raised serious issues about Dr Ghosh’s ability to perform primary medical services.  As a result of this letter and the GMC’s previous findings an oral hearing was held on the 17 August 2004 to consider whether Dr Ghosh should be suspended under regulation 13 of the Regulations.  The panel decided to suspend Dr Ghosh pending further investigations into the allegations made by Dr Essien.

(x)                 On the 2 September 2004 the CPP resumed its consideration of Dr Ghosh’s case and noted that little progress had been made by Dr Ghosh in a number of significant areas.  The CPP suspended Dr Ghosh from the register for six months after finding that this was necessary for the protection of the public.

(xi)               The grounds of opposition then went on to refer to the oral hearing held on the 11 November and the subsequent decision letter dated the 22 November 2004 to which we have referred to above.

(2)                The statement of grounds for opposing the appeal then went on to deal with the Concise Statement of Grounds of Appeal.

(3)                With regard to the first ground, namely that the removal of Dr Ghosh’s name from the List was premature, unreasonable and wholly disproportionate, it was contended by the PCT that:

(i)                   The functions of the PCT and the GMC are distinct and separate.  Further, that the PCT has a statutory duty of quality under section 45 of the Health and Social Care (Community Health and Standards) Act 2003 and as part of that function it has powers to suspend, remove and contingently remove general practitioners from its Performers List.

(ii)                 That although both the PCT and the GMC have distinct and separate roles to play, the work of one organisation may be relevant to the other in carrying out its work.  In the case of Dr Ghosh, the consideration of Dr Ghosh’s practice by the CPP on three occasions since 2002 covered material that raised the question of whether there were and are serious deficiencies in Dr Ghosh’s practice and whether Dr Ghosh had made any progress in rectifying those deficiencies over more than two years.

(iii)                That the work of the PCT is not, however, coupled to the work of the GMC and there is no requirement on the PCT to fetter itself with respect to the decisions it is empowered to take in relation to its Performers List.  The PCT is not, therefore, required to wait for any GMC procedure to be completed before exercising its powers.

(iv)                The PCT’s position is that over more than two years serious concerns were raised about Dr Ghosh’s practice and considerable efforts were made by a number of organisations to enable him to rectify failings in his practice.  Little progress was made by Dr Ghosh and in these circumstances the PCT’s decision to remove him from it’s Performers List was not premature nor was it unreasonable or disproportionate.

(4)                With regard to the second ground that the procedures adopted, and consequently the decision taken to remove Dr Ghosh’s name from the Performers List was unfair, the PCT contended that:

(i)                   Dr Ghosh’s argument in relation to the decision to suspend him by the PCT is not relevant to the present appeal to the FHSAA.

(ii)                 With regard to the inclusion of material relating to Dr Essien’s letter of the 4 August 2004 was not unfair and prejudicial and did not influence the decision of the PCT’s panel.  The letter informing Dr Ghosh of the panel’s decision, which was dated the 27 November 2004, made it clear that the panel had regarded his suspension as a neutral act and that it had agreed with Dr Ghosh’s arguments that Dr Essien’s allegations were pending investigation and therefore unproven, and in consequence the panel had agreed that the suspension, and the allegations made by Dr Essien should not form part of their deliberations.

(iii)                That the PCT did not accept that the inclusion of material contained in Dr Essien’s letter and the case presented by Mr Burden was unfair or prejudicial.

(iv)                It denied that Dr Challacombe and Ms Nicholls, who were members of the PCT’s panel, were likely to be biased against Dr Ghosh, or were biased against him, and that as members of the PCT’s panel they had both considered the relevant criteria for a decision to remove a performer from the List and the relevant supporting evidence.

(5)                With regard to the third ground of appeal namely that the procedure adopted by the PCT was unfair and in breach of the statutory rules, the PCT argued that:

(i)                   The PCT did not accept the detail of events suggested by Dr Ghosh and set out the sequence of events which in its view supported its argument that the procedure was fair, was not contrary to natural justice and that Dr Ghosh’s Article 6 rights were not infringed.

(ii)                 The PCT had complied with regulation 10(8) of the Regulations and that Dr Ghosh had received by way of a letter dated the 12 October 2004 from the PCT sufficient details to provide him with proper notice.

(6)                With regard to the fourth allegation that the procedures adopted by the PCT were inherently unfair and contrary to the principles of natural justice and/or Article 6 of the Human Rights Act the PCT contended as follows:

(i)                   They referred to pargraph 31.7 of the Department of Health Guidance on List Management dealing with the fact that there would be no right to legal representation at the hearing held by the panel appointed by the PCT.

(ii)                 That in any event Dr Ghosh had the right, which he had exercised, to appeal the PCT’s decision to the FHSAA.

(iii)                That the PCT maintained that the procedures used at the oral hearing were not unfair and nor were they contrary to the principles of natural justice and that lastly Dr Ghosh’s Article 6 rights were not infringed.

(7)                In conclusion the PCT stated that it considered its decision to remove Dr Ghosh from its Performers List was reasonable and proportionate.

 

PRELIMINARY HEARINGS AND APPLICATIONS

 

Application for a hearing De Novo

22                 At the hearing on the 9 March 2005 Counsel for Dr Ghosh made an application that the appeal should be dealt with by way of a hearing de novo and this application was opposed by the solicitor representing the PCT.  We decided that the hearing of the application should be adjourned for hearing on the 5 April and that skeleton arguments in relation to Dr Ghosh’s application should be submitted by both parties prior to that hearing.  We made further directions as to the conduct of the matter.

23                 At the hearing on the 5 April  2005 skeleton arguments were submitted both on behalf of Dr Ghosh and the PCT and were considered by us.  We also heard submissions and legal argument from Mr Forde on behalf of Dr Ghosh and Mr Sanders on behalf of the PCT.

24                 We decided that in essence there was a lot of common ground between the parties and that the reality of the application was “who goes first”.  We decided that there was an overriding need for there to be a fair, unbiased and impartial hearing taking account of not only our statutory obligations, but the obligations imposed by common law and the Human Rights legislation.  We were unanimously of the opinion that in all the circumstances of this appeal and having regard to the grounds of appeal that we would prefer to hear from the PCT first and then hear Dr Ghosh’s case.  We determined that the hearing should be de novo.  We made further directions for the conduct of the appeal.

 

Application for the Appointment of a New Panel

25                 At the commencement of the substantive hearing on the 11 May 2005 Mr Forde made an application on behalf of Dr Ghosh for the appointment of a new Panel.  The basis of the application was the inclusion of a report made by a Dr Pearlgood in the PCT’s papers which raised certain prejudicial issues.  Mr Garnham on behalf of the PCT accepted that the document should not have been included and invited the Panel to take no account of the document and to disregard it.  Mr Garnham further suggested that it should be removed from the bundle.

26                 We adjourned to consider the matter and we were unanimously of the view that we were able to ignore the report and that it should be removed from the bundle.  Having confirmed this decision to the parties Mr Forde said that Dr Ghosh was still very unhappy about the Panel continuing to deal with the appeal. 

27                 Mr Forde said that Dr Ghosh was in no way critising the Panel, but he was concerned that in addition to the Dr Pearlgood report the Panel had also seen Dr Essien’s letter of the 4 August 2005 which he felt was an inflammatory document and which would have subconsciously affected the Panel’s views.  In particular Dr Ghosh felt that the PCT’s panel had been influenced by Dr Essien’s letter.  In the light of both documents he felt the Panel were in danger of being biased and should recluse themselves.

28                 This submission was opposed by Mr Garnham and he stated that the documents involved were at best of marginal relevance.

29                 We again retired and considered the arguments very carefully.  None of the members of the Panel had read the Pearlgood report closely as it had been included in our bundles at a late stage.  We decided that we had no preformed views of the case, it was a hearing de novo and we all came with an open mind.  We were of the view that we would be deciding the matter on the basis of the evidence and documents actually dealt with at the hearing.  We all felt that we were in a position to take an independent and unbiased view and therefore decided to proceed with the hearing and informed the parties accordingly.

 

Professor Wall

30                 At the hearing on the 16 June 2005 Mr Forde made an application on the part of Dr Ghosh to adduce in evidence a report prepared by Professor Wall and further to call Professor Wall to give evidence.  This application was opposed by Mr Garnham on behalf of the PCT.

31                 We heard extensive argument from both Mr Forde and Mr Garnham and were provided with a copy of the report and the letter of instruction sent to Professor Wall.  We retired to consider the position.

32                 The matter was considered by us at some length, but our unanimous view was that the ultimate test was whether it was just and reasonable to admit the evidence at this stage in the appeal hearing.  We concluded that the evidence was being adduced at a very late stage, after the PCT’s evidence had been completed and part of the way through Dr Ghosh’s evidence. We felt that Professor Wall’s evidence related to issues which had always clearly been in dispute over a period of several months.  We were of the view that to admit the report now would not be reasonable and would be prejudicial to the PCT.  Whilst the argument had been put forward that this prejudice could be dealt with by an adjournment and providing the opportunity for the PCT to produce further evidence in response, it was our strong view that this would only lead to further significant delay and would not be in the interest of either party and indeed it would not significantly assist the Panel in reaching our decision.

33                 We informed the parties accordingly.

34                 In accordance with our decision reached on the 5 April we heard the case for the PCT first. 

 

Evidence for the Respondent

35                 Mr Garnham opened his case and then a number of witnesses were called.

Dr Spencer

36                 Until 3 months before making her statement Dr Spencer was the lead Doctor for sexual and reproductive health for the PCT.

37                 On the 16 October 2002 Dr Ghosh wrote to her requesting practical training for the Diploma of the Faculty of Family Planning (“DFFP”).  She was aware that conditions had been placed on Dr Ghosh by the GMC.  Dr Spencer explained that the DFFP was comprised of a two day theory course which covered all the core knowledge required and at least 8 practical sessions in a Family Planning Clinic.  Dr Ghosh attended the theoretical element of the DFFP course at Whipps Cross Hospital on the 12 and 13 October 2002.

38                 The first four of a scheduled 8 practical training sessions took place on the 7 February, the 6 March, the 11 March and 17 March 2003.  Dr Spencer explained that at the first practical session on the 7 February Dr Ghosh completed a questionnaire produced by the Faculty which is designed to assess trainees who may have problems with core knowledge relating to family planning.  The questionnaire consisted of 60 questions and those taking the questions have to answer “true” or “false” to each of those 60 questions.  The questionnaire is not negatively marked.  Dr Ghosh only scored 37 out of 60.  Dr Spencer gave evidence that this was a lower score than she would have expected of a person who had completed the theoretical element of the DFFP course.

39                 On the 23 April 2003 Dr Spencer wrote to Dr Ghosh informing him that she was not prepared to continue training him for the DFFP.  Her letter, which was enclosed in our bundle, set out in some detail the three areas of concern that had prompted Dr Spencer’s decision.

40                 The first area was the failure of Dr Ghosh to bring a log book to the practical training sessions.  Dr Spencer stated that she had explained to Dr Ghosh that it was essential that he brought a log book which recorded his contact with patients to the practical sessions and although Dr Ghosh had said he would bring such a log book he failed to do so despite reminders from Dr Spencer.  This lead to Dr Spencer having concerns about Dr Ghosh’s understanding of the importance of the log book and the structure of his DFFP course.

41                 The second area of concern was Dr Ghosh’s poor knowledge and his difficulties in retaining information.  Dr Spencer was concerned that Dr Ghosh’s score of 37 out of 60 in relation to the Faculty questionnaire completed on the 7 February was much lower than she would expect from someone who had completed the theoretical element of the DFFP course.  Dr Spencer stated that at the second practical session she went through the questionnaire in some detail with Dr Ghosh and supplied him with the correct answers which she discussed with him.  She also suggested basic reading should be undertaken by him.  However, after the fourth session she asked Dr Ghosh to complete the same questionnaire and on this occasion he achieved only 40 points out of 60.

42                 Dr Spencer said that the results of this test were of great concern to her, she would have expected somebody who had completed the theoretical course and four practical sessions to score 50 or more points.  However, in this case Dr Ghosh had also been told the correct answers and Dr Spencer had discussed the questions in some detail with him.  Furthermore, when she reviewed Dr Ghosh’s answers in relation to the second questionnaire against the first questionnaire she noticed that 8 of the incorrect answers he gave on the second occasion had been answered correctly on the first questionnaire.

43                 Dr Spencer’s view was that these results indicated that Dr Ghosh’s core knowledge base was insecure and that his ability to improve that knowledge base was severely impaired by his problems in retaining information.  For this reason it was inappropriate for Dr Ghosh to continue with the DFFP course because he would not reach the required standard.

44                 The third area of concern was cross infection.  Dr Spencer said that the prevention of cross infection was a core skill for health care professionals.  She gave an example where on one occasion Dr Ghosh had touched with his bare hands a piece of equipment that had just been used to insert a contraceptive device into a patient.  Not only had he touched it when he should not have, but he then placed it on a sterile trolley thereby de-steralising it.  Dr Spencer’s evidence was that this showed a deficiency in a core skill which had potential to put both Dr Ghosh and his patients at risk.

45                 Dr Spencer’s conclusion was that Dr Ghosh’s performance in the four practical sessions was poor and that the fundamental deficiencies which she had observed lead her to conclude that, even with further training, he would be unable to attain the DFFP.  This was a rare occurrence in her experience.

46                 Dr Spencer also said that she had found communication with Dr Ghosh to be quite difficult and that at some times he appeared to be confused with patients.

47                 Under cross-examination Dr Spencer said that Dr Ghosh had told her that he had difficulty in finding time to do the reading recommended by her.  She also accepted that Dr Ghosh may possibly have been nervous.

48                 We found Dr Spencer to be an impressive and fair witness.

 

 

 

Jane Hitchcock

49                 In her witness statement June Hitchcock explained that she worked for the Lambeth Primary Care Trust, Public Health Department.  She stated that she was a registered nurse, a qualified district nurse and a nurse prescriber and had an MSc in medical science and a diploma in infection control.

50                 June Hitchcock’s role had been to carry out infection control audits in General Practitioner practices and PCT clinics.  On the 23 April 2003 she had visited Dr Ghosh’s practice and carried out a clinical audit in which she identified a number of concerns.  June Hitchock explained that it takes a little time to produce a full audit, but that on the 25 April 2003 she wrote to Dr Ghosh setting out two key areas of concern.

51                 The first area of concern had been that Dr Ghosh was not storing vaccines according to current guidelines.  He was using a domestic refrigerator to store vaccines and June Hitchcock noted that the refrigerator felt warm and the thermometer in the refrigerator did not work.  This meant that the efficacy of the vaccines could not be guaranteed and this could potentially impact adversely on patients’ safety.  Ms Hitchcock stated that her concerns were serious and that she had made this clear to Dr Ghosh and had provided various recommendations.

52                 Ms Hitchcock stated that she had signed off her full report on the 1 May 2003 and again she made further recommendations.  She stated that it was clear to her that at the time of her visit on the 23 April 2003 both Dr Ghosh and his nursing staff were not adhering to best practice.  Both her letters were included in our bundle.

53                 Ms Hitchcock asked Dr Ghosh to provide certain information including a list of recipients of the vaccines during the six month period prior to her visit.  She also asked for a list of vaccines that had to be destroyed. 

54                 Although Dr Ghosh did implement many of her recommendations he failed to provide all the information requested over a considerable period of time, despite both telephone and written reminders.  Ms Hitchcock also found it difficult to arrange dates for a review visit.

55                 Her second major area of concern was the condition of the bench top steam sterilizers.  She said that the sterilizer equipment was not maintained to current guidelines and therefore the sterility of all devices being processed could not be guaranteed and she made various recommendations.

56                 Ms Hitchcock said that she felt that Dr Ghosh’s response was far slower than she would have expected, given the seriousness of the concerns she identified in her audit of the 23 April 2003 which had the potential, in her view, of prejudicing patient safety.  Ms Hitchcock stated that in her experience a delay of five months between an initial visit and a review visit, and before complying with recommendations, was unusually long and that in her view this delay resulted from Dr Ghosh’s conduct.  She felt that a reasonable period would have been four weeks.

57                 During cross examination Ms Hitchcock stated that she had found similar deficiencies in other practices and that she had experienced delays, but nothing as long as five months.  She stated that she had eventually handed over the issue of the lack of response about vaccines to the Consultant in Communicable Disease Control for Bexley and Greenwich.

58                 Ms Hitchcock also said under cross examination that she was encouraged that many of the recommendations made by her were in place when she eventually carried out her review visit on the 23 September.

59                 In answer to the Chair Ms Hitchcock said that she felt that her report raised serious issues because of the risk of infection to patients.

 

 

 

Dr Challacombe

60                 Dr Challacombe gave evidence that she was a registered medical practitioner who had worked as a principal in general practice in Greenwich since 1971 and that she was one of the medically qualified representatives on the Professional Executive Committee of the PCT and that since July 2003 she has been the GP Clinical Governance lead.

61                 Dr Challacombe said that she had known Dr Ghosh since the 1980’s as they were both general practitioners working in the same area and gave evidence about the circumstances in which she had become professionally involved with Dr Ghosh in her role as Clinical Governance lead in recent years.

62                 Dr Challacombe said that she had sat on the panel which had considered Dr Ghosh’s suspension on the 17 August 2004 and that at that hearing Dr Ghosh had objected to her presence on the panel because she had known him in a professional capacity before.  However it had been explained to Dr Ghosh and his representative that as Clinical Governance lead it was likely that she would know most of the local GP’s.  Dr Ghosh and his representative accepted this explanation and did not pursue the point.

63                 Dr Challacombe explained that at the hearing on the 17 August the panel considered the allegations made in Dr Essien’s letter and that it had concluded that the seriousness of those allegations meant that it was necessary in the public interest and for the protection of the public for the PCT to suspend Dr Ghosh pending an investigation of the allegations.  Dr Challacombe said that taking that decision they had borne in mind the grounds on which a PCT may decide to suspend a performer as contained in regulation 13 of the Regulations.

64                 Dr Challacombe also confirmed that she had sat on the panel considering Dr Ghosh’s removal from the Performers List on the 11 November 2004 and explained in some detail the process and procedures adopted.  She confirmed that neither Dr Ghosh nor his representive had objected to her presence on that panel.

65                 Dr Challacombe stated that she was aware that suspension was a neutral act and that she was also aware that at the hearing on the 11 November 2004 the panel required convincing evidence in order to draw a conclusion as to whether the PCT should remove Dr Ghosh from its Performers List.

66                 Dr Challacombe gave evidence about the approach of the panel at the removal hearing in relation to Dr Essien’s letter and the subsequent suspension of Dr Ghosh and said that the panel had decided that both the fact of suspension and the allegations made by Dr Essien should not form part of its deliberations or be taken into account.

67                 Dr Challacombe then gave evidence about Dr Ghosh’s allegations of bias and she denied categorically that she was or is in any way biased against Dr Ghosh or indeed that any reasonable observer would think that she might be biased.

68                 Under cross examination Dr Challacombe confirmed that the panel members knew each other well.  She was aware of difficulties in finding someone to investigate Dr Essien’s allegations.

69                 Dr Challacombe said that she had considered the issues about conflict, but that she felt that her experience as clinical governance lead and her general experience suited her for the role of sitting on the panel.

70                 Dr Challacombe said that the panel had a perception that the GMC was undertaking assessment of Dr Ghosh and that they had imposed a list of conditions with support in place, for example, via the Deanery.  It was her understanding that there was not much money available for remedial training in the PCT funds.

71                 We found Dr Challacombe to be an open and fair witness.

 

Elizabeth Nicholls

72                 Elizabeth Nicholls gave evidence that she had been a Registered General Nurse since June 1978 and that since May 1992 she had worked as a nurse in general practice and for the last five years she had worked as a nurse practitioner at the Vanbrugh Hill Health Centre, Greenwich.  This is the practice in which Dr Challacombe also works.

73                 Ms Nicholls explained that she was the nurse representative on the Board of the PCT.  Ms Nicholls also explained that the Board is advised on clinical matters by the Professional Executive Committee and that she has been the clinical governance lead for that committee since her appointment to the Board in 2002.

74                 Ms Nicholls confirmed that she had sat on the PCT panel which considered Dr Ghosh’s removal on the 11 November 2004.  She went through the process and procedures that had been adopted and dealt with the allegations made by Dr Essien and confirmed that that panel had unanimously agreed that Dr Ghosh’s suspension and the allegations made by Dr Essien were not to form part of the panel’s deliberations.

75                 Ms Nicholls also dealt with the allegation of bias and said that she was not and is not biased against Dr Ghosh and that she had put Dr Essien’s allegations out of her mind when taking the decision that Dr Ghosh should be removed from the Performers List.  She also gave evidence that neither Dr Ghosh nor his representative made any objection to her presence on the panel at the hearing on the 11 November 2004.

76                 Ms Nicholls said that the panel’s conclusion was that Dr Ghosh could not comply with the required standards for general practitioner.  She said that she had not formed a view as to what support Dr Ghosh was receiving.  She confirmed in answer to Dr Garcha that she understood that Mr Jeremy Burden was the person who knew what support the PCT was providing to Dr Ghosh.

 

Mr Jeremy Burden

77                 We heard fairly lengthy evidence and cross examination of Mr Burden.

78                 Mr Burden confirmed that at the time of these events he was director of primary care at the PCT and that it was in his capacity as Director of primary care that he became involved in this matter.  He confirmed that he was the Investigating Officer at the hearing to consider Dr Ghosh’s removal from the Performers List on the 11 November 2004 and that as such he presented the PCT’s case to the panel.

79                 He dealt with Dr Ghosh’s complaints about the procedures adopted and in particular the letter from Dr Essien.  Mr Burden confirmed that there had been difficulty in finding someone to investigate Dr Essien’s allegations although someone had now been appointed.  Mr Burden also confirmed that the panel had decided that they would have no regard to Dr Essien’s allegations.

80                 Mr Burden also dealt with the allegations of bias against Dr Challacombe and Ms Nicholls and stated that no objection had been taken to the presence of either Dr Challacombe or Ms Nicholls on the panel at the hearing on the 11 November 2004.

81                 Mr Burden dealt with the issues raised by Dr Ghosh with regard to legal representation and referred to the document “Delivering Quality in Primary Care – Advice for Primary Care Trusts on List Management” and in particular paragraph 31.7 which addressed the issue of legal representation.

82                 Mr Burden dealt with the allegation by Dr Ghosh that the procedure adopted by the PCT was unfair as it breached statutory rules and in particular that Dr Ghosh had not been provided with proper notice of the allegations against him and that he had not been supplied initially with the copy of the statement of case.  Mr Burden contested Dr Ghosh’s allegations about these matters.

83                 Mr Burden gave evidence in relation to paragraph 1 of the Concise Statement of Grounds of Appeal that Dr Ghosh had lodged dealing with the suggestion that Dr Ghosh’s removal from the PCT Performers List was premature.  Mr Burden gave lengthy evidence about this, in particular Mr Burden pointed out that Dr Ghosh had conditions placed upon his practice by the GMC in 2002 in order to give him the opportunity to demonstrate to the GMC that he was capable of achieving the necessary improvements in his practice.  He went on to explain that the CPP reconsidered Dr Ghosh’s practice in 2003 and considered that he needed further time in which to demonstrate a reasonable improvement and it also, at that time, imposed two further conditions.

84                 Mr Burden said that on the 9 February 2004 the CPP had again reviewed Dr Ghosh’s situation and noted that a great deal of work had yet to be done.  Finally on the 2 September 2004 the CPP had decided that Dr Ghosh should be suspended. 

85                 Mr Burden contended that the picture presented was one where Dr Ghosh was repeatedly failing in a number of core skills which cover a wide range of skills.  This was despite, in Mr Burden’s view, the support offered to him since 2002 when the conditions were first imposed, some of which had been provided by the PCT.  Mr Burden went on to say that not only had Dr Ghosh not improved to the satisfaction of the GMC, but there was evidence that he was not capable of improvement.

86                 By way of example of Dr Ghosh’s failure to improve, Mr Burden referred to a letter from Dr Julia Whiteman of the London Deanery, a matter about which we were to hear evidence from Dr Whiteman later in the hearing.

87                 Mr Burden said that it was a decision of the GMC to suspend Dr Ghosh on the 2 September 2004 which had caused the PCT to focus on Dr Ghosh’s situation and crystallise the issue.  He said that the letter of the 4 August 2002 received from Dr Essien which was considered at the suspension hearing on the 17 August 2004 did not precipitate the PCT’s decision to consider Dr Ghosh’s removal from the Performers List.

88                 Mr Burden also said that further evidence that the PCT was seriously considering Dr Ghosh’s position on the Performers List was evidenced by the PCT’s consideration of his contingent removal on the 6 May 2004.  Mr Burden pointed out that this event pre-dated the receipt of Dr Essien’s concerns.

89                 Mr Burden then gave evidence with regard to Dr Ghosh’s progress in respect of conditions imposed upon him by the GMC and, in particular, such matters as Dr Ghosh’s list size and the correspondence which had taken place between Mr Burden and Dr Ghosh.

90                 Mr Burden said that the experience of Dr Spencer in dealing with Dr Ghosh in respect of the DFFP course was an example of Dr Ghosh’s lack of core knowledge and lack of practical skills.

91                 Mr Burden then referred to Dr Ghosh’s failure in the multiple choice question element of the National Summative Assessment and also referred to Dr Ghosh’s interaction with the Health Protection Agency and the visit of Ms June Hitchcock.

92                 Mr Burden said that on the 16 September 2003 Dr Nimal Premaratne, the Consultant in Communicable Diseases Control, wrote to him expressing her concern about the situation which she noted had patient safety ramifications and the delay by Dr Ghosh in arranging a review visit and his failure to provide the requested data. A copy of this letter was included in our bundle.  Mr Burden saw this incident as typical of Dr Ghosh’s inability to acknowledge his failings and, in particular, his lack of insight into the potential impact that those failings had on patient safety.

93                 Mr Burden said that his Statement of Case, a copy of which was included in our bundle, in his view traces Dr Ghosh’s practice from 1997 to 2004 in terms of the serious deficiencies identified in it and that in a period of seven years the history of events showed no demonstrable improvement in Dr Ghosh’s practice despite what he saw as intensive support provided to Dr Ghosh since the PCT’s decision on the 25 January 2002.  It was his view that Dr Ghosh’s history suggested that he was not capable of providing an adequate service to his patients and that he is unlikely to be able to do so in the future.

94                 Mr Burden gave details of what he saw as support being provided through the London Deanery, the PCT and other sources.

95                 Under cross-examination Mr Burden confirmed that all he had received from the GMC was a copy of the Decision and not the details of the hearing itself.

96                 Mr Burden also said that he was aware that some PCT’s provided financial assistance to GP’s in difficulties, but that the PCT did not, although it had a professional support committee. He confirmed that Dr Ghosh would have been expected to provide locum cover out of his own monies and would have to, himself, inform patients of his absence for retraining.

97                 Mr Burden said that he had been told by Dr Ghosh that he had had difficulty in obtaining a trainer and mentor.

98                 Mr Burden accepted that his interpretation of GMC conditions was that they required two days full attendance by a mentor and that there was tension between the PCT’s view and the London Deanery’s view of some of the conditions imposed by the GMC.  Mrs Barducci asked Mr Burden whether he had checked directly with the GMC as to their intention and he stated that he had not.

99                 Under cross examination Mr Burden also gave evidence about Dr Essien and the Performance Support Group and many other issues relating relating to education support, training and funding.

 

Jane Schofield

100              Jane Schofield gave evidence that she was the Chief Executive of the PCT and that she had a nursing background and that she has held a senior general management role within the National Health Service for over 17 years.

101              Ms Schofield gave evidence about the removal hearing held on the 11 November 2004 which she chaired.

102              Ms Schofield gave evidence of her knowledge of the Regulations and the criteria for removal, and of inefficiency and unsuitability cases.  She dealt with the allegations of procedural unfairness and inadequate notice at some length.  She also dealt with her view of the allegations of bias in respect of Dr Challacombe and Ms Nicholls making the point that no objection was taken by Dr Ghosh or his representative at the hearing on the 11 November 2004.

103              Ms Schofield is of the view that both Dr Challacombe and Ms Nicholls brought valuable experience to the panel hearing on the 11 November as they were both very experienced in dealing with clinical governance and issues relating to Dr Ghosh’s case.

104              Ms Schofield also dealt with the issues in relation to Dr Essien’s letter and allegations and stated that on hearing Dr Ghosh’s representative on the issue she had advised the panel to accept that the investigation into Dr Essien’s allegations was not complete, that there was no evidence to support the allegations and that the panel subsequently agreed not to take account of the allegations made by Dr Essien.

105              Ms Schofield dealt with the issue of legal representation and referred to the same authority as had been referred to by Mr Burden and that it was her view that the procedure adopted by the PCT in accordance with the Department of Health Guidance was fair.

106              Ms Schofield gave evidence as to her views of the general nature of the case against Dr Ghosh and said that as well as the history of the various decisions of the CPP there were specific examples of Dr Ghosh’s failure to show any improvement and of Dr Ghosh’s lack of core knowledge.  She referred in particular to Dr Ghosh’s results in the National Summative Assessment multiple choice element which he had failed and the report provided by Dr Mary Spencer.  She went on to say that her greatest concern, having heard the evidence presented to the panel on the 11 November, was that there was no evidence of improvement in Dr Ghosh’s practice over more than two years despite what she saw as considerable support.  She said that she felt that these decisions went to fundamental skills such as an inability to take a proper history, a failure to make appropriate investigations and a failure to keep adequate notes.

107              Ms Schofield said that it was her view that the evidence available to her at the removal hearing indicated that Dr Ghosh was performing a service that was well below standard and that despite considerable support from a number of organisations he had not only failed to improve, but also had shown no capability of doing so and as such his continued presence on the Performers List would clearly be prejudicial to the efficiency of the services which he had to perform whilst on the Performers List.  Ms Schofield also went on to say that she thought that Dr Ghosh was also unsuitable to be on the Performers List and set out her reasons.

108              It appeared to be Ms Schofield’s view that the conditions imposed by the GMC were not working and that Dr Ghosh had failed to show any significant improvement.

109              It was also Ms Schofield’s view that a significant amount of support had been put in place.

110              Under cross examination Ms Schofield said that a practitioner had to have a basic level of competency and training and that the PCT contracted with a General Practitioner on the basis that he was competent.  She went on to say that there may well be PCTs who do assist in trainings, but that in the case of her PCT she saw this as the function of the London Deanery.  She went on to say that she took the view that it was for the practitioner to ensure his competency, although in fact he had received help from Dr Kheraj and Dr Whiteman.

111              Ms Schofield said that she had not been aware that Dr Ghosh had had difficulties in finding a trainer and also a mentor.

 

Dr Kheraj

112              Dr Kheraj gave evidence that he was employed as the Chief Primary Care Medical Advisor for the South East London Strategic Health Authority, that he qualified as a doctor in 1984, that he was also an advisor to the National Clinical Assessment Service and an Associate of the General Medical Council.  He confirmed that he was still engaged in clinical practice as a General Practitioner.  Dr Kheraj explained that one of his roles was to support the local PCTs in the assessment and management of poor clinical performance amongst their GP population.

113              Dr Keraj met with Dr Ghosh at the beginning of June 2003 to discuss possible funding for his educational rehabilitation.  Following that meeting Dr Kheraj had written to Dr Ghosh on the 9 June 2003 requesting more information so that he would be in a better position to assist Dr Ghosh in his rehabilitation. 

114              Dr Ghosh supplied the information requested and Dr Kheraj wrote again on the 17 June 2003 to Dr Ghosh requiring further clarification on certain issues.  Dr Kheraj was, in particular, concerned that it was not clear from the information supplied by Dr Ghosh as to how he was going to comply with the conditions imposed by the GMC and he asked for an action plan addressing these issues.  He also referred Dr Ghosh to Dr Julia Whiteman at the London Deanery about constructing such an action plan.  Dr Kheraj made it clear that any funding to be provided would be conditional on the production of a clear action plan.

115              Dr Kheraj went on to explain that on the 30 June 2003 he had a meeting with Dr Ghosh lasting around three hours.  During that meeting he went through each of the conditions imposed on Dr Ghosh’s practice by the CPP.  Dr Kheraj said that this was necessary because despite his efforts to get Dr Ghosh to focus on what he was required to do under the conditions, Dr Ghosh had not done so.  Dr Kheraj was disappointed that Dr Ghosh had not addressed those issues in the seven weeks since the determination of the CPP.

116              On the 1 July 2003 Dr Kheraj wrote to Dr Ghosh setting out the issues that they had discussed at their meeting on the 30 June and also setting out Dr Kheraj’s concerns.  Dr Kheraj in his letter made it clear that, rather than focussing on funding, it was far more important for Dr Ghosh to focus on producing a clear action plan.  Dr Kheraj said that he had expressed the view that Dr Ghosh would need significant support in doing this, however Dr Ghosh did not appear to understand what was required of him by the conditions imposed by the GMC.  Dr Kheraj had seen the 150 page GMC assessment which had been sent to him by Dr Ghosh.

117              Dr Ghosh had provided a personal development plan at the meeting on the 30 June.  However, the document he provided lacked sufficient detail and did not address issues with which Dr Ghosh was faced.  Dr Kheraj felt that it was essentially a template document and that Dr Ghosh had not personalised it so that it was of very little practical use.  Dr Ghosh, in Dr Kheraj’s view, did not appear to understand the purpose of the personal development plan or how it could be a tool in addressing the deficiencies in his practice identified by the GMC.

118              Dr Kheraj also dealt with the subject of medical records.  He said that in his conversation with Dr Ghosh, it became clear that Dr Ghosh had a very limited understanding about what information should be recorded in medical notes.  In those circumstances, Dr Kheraj set out basic information about medical records in his letter of the 1 July.  Dr Kheraj said that the very basic level of advice reflected his concerns about Dr Ghosh’s level of understanding.  He took the view that Dr Ghosh’s failure to enquire further of the GMC about the condition relating to medical records was indicative of Dr Ghosh’s apparent inability to address his deficiencies.

119              Dr Kheraj said that at the meeting on the 30 June it appeared that Dr Ghosh was still not clear about what he was required to do under the conditions imposed on him by the GMC.  Furthermore, he did not appear to understand the significance of those conditions in terms of how they related to deficiencies in his practice.  Dr Kheraj stated that Dr Ghosh appeared to understand the GMC expectations of him, only in generality not in specifics.  As a result Dr Ghosh did not know how to address the issues which confronted him, but nor did he show a willingness to do so.

120              In order to encourage Dr Ghosh to address those issues Dr Kheraj set Dr Ghosh tasks to thereby require him to take action.  Even then, it was very difficult, so far as Dr Kheraj was concerned, to get Dr Ghosh to comply.  He gave as an example Dr Ghosh’s failure to provide an adequate action plan.  He said that in his experience this was a rare situation and that most doctors that he sees are keen to try and address their deficiencies.

121              Due to sickness Dr Kheraj was not able to keep the next meeting arranged with Dr Ghost in mid August 2003.  However, he wrote to Dr Ghosh on the 26 August 2003 enclosing a table setting out the conditions to which Dr Ghosh was subject and next to each of them a space for Dr Ghosh to set out, first, the action he must take before his next appearance before the CPP, secondly the support he would require and thirdly, any comments he had.  Dr Kheraj asked Dr Ghosh to consider each condition carefully and complete the action plan template before the next meeting.

122              Dr Kheraj’s next meeting with Dr Ghosh was on the 6 September 2003 and at that meeting Dr Ghosh had not completed the action plan template provided by Dr Kheraj.  Dr Kheraj therefore went through the template at that meeting because in his view it was essential that Dr Ghosh had a detailed action plan.

123              Dr Kheraj therefore wrote to Dr Ghosh on the 16 September 2003 enclosing an amended template in which Dr Kheraj had completed the relevant comments which Dr Ghosh was to verify.  Dr Kheraj said that he did not expect to have to support practitioners with whom he worked in this way and that the incident exemplified Dr Ghosh’s attitude towards the process of addressing the conditions imposed upon his practice.  It took Dr Ghosh four months to get close to providing an adequate action plan and this only occurred when the action plan was actually drafted for him by Dr Kheraj.

124              In addition in his letter of the 16 September Dr Kheraj set out further issues which he had discussed with Dr Ghosh, these included the addressing of deficiencies identified by the CPP, preparation for the Summative Assessment and, finally, how he should address the issue of fulfilling the conditions imposed on his practice rather than funding.

125              By this time it was Dr Kheraj’s view that very little progress was being made and he offered to speak to Dr Ghosh’s medical defence organisation’s representative in an effort to explain his concerns, but Dr Ghosh refused this offer.

126              In mid October 2003 Dr Ghosh contacted Dr Kheraj by telephone and said that he wished to explore funding issues. Dr Kheraj wrote to him on the 17 October 2003 explaining that he was not in a position to provide any funding.  Dr Kheraj stated explicitly in his letter that it was his view that Dr Ghosh needed to direct his efforts towards his remedial programme rather than the funds to support it.  He further reminded Dr Ghosh that they had agreed action points at their last meeting, but there appeared to be no progress.  He invited Dr Ghosh to contact him to arrange another meeting, but Dr Ghosh failed to do so and this was his last contact with Dr Ghosh.

127              Dr Kheraj said that in his dealings with Dr Ghosh he failed to address the deficiencies in his practice identified by the GMC and Dr Kheraj found no evidence to suggest that Dr Ghosh was capable of changing his approach to addressing those deficiencies despite the extensive support which had been offered by Dr Kheraj which was beyond that which he usually offered to doctors who are referred to him.

128              Dr Kheraj explained that the bulk of funding for training goes to the London Deanery to support doctors who have been before the GMC panel and that Dr Julia Whiteman at that time headed up the appropriate department in the London Deanery.  Dr Kheraj said that he worked in collaboration with Dr Whiteman.  He went on to explain that the provision of training was not his role.

129              Dr Kheraj said that it was his recollection that he had had to do a lot of the work at his meetings with Dr Ghosh and that Dr Ghosh seemed not to understand what was required of him.  On a number of occasions Dr Kheraj expressed the view that it was his opinion that Dr Ghosh did not understand the amount of work involved nor did he understand what was necessary to resolve his position.

130              Under cross examination Dr Kheraj said that Dr Ghosh had shown him his trainer’s report, but he was not sure whether or not that report was signed.   He also accepted that it had taken Dr Ghosh some five months to find a trainer and even longer to find a mentor because it had been difficult for him to do so.

131              Dr Kheraj said that the ultimate responsibility for training and basic competency lay with the practitioner.

132              Dr Kheraj said that he had some £38,000 funding for the year in question.  The payment for the provision of locums was specifically excluded.  He felt that retrospective funding was unreasonable and indeed ultra vires.  He had in mind that these funds could be used for specific courses which the Deanery could not provide.

133              Dr Kheraj said that it should have been within Dr Ghosh’s capability to deal with some of the issues and that if he had been in Dr Ghosh’s position he would have done everything he could to have the conditions lifted.

134              Dr Kheraj said that in his view the MCQ should not have been a problem for a practising GP.

135              In answer to Dr Garcha he said that he felt that the training report was not very helpful and that he felt that he, together with Dr Whiteman, had provided significant support.

136              In answer to the Chair Dr Kheraj also said that if Dr Ghosh had not stopped contacting him he would have been prepared to continue to help him.

137              In our view Dr Kheraj was a very good, clear and honest witness who demonstrated a genuine wish to have been able to help Dr Ghosh, but was frustrated by Dr Ghosh’s approach.

 

 

 

Dr Julia Whiteman

138              Dr Whiteman gave evidence that she qualified as a Doctor in 1981 and that she is now Deputy Director of General Practice at the London Deanery.  Her role includes the supervision of continuing professional development for general practitioners in London and providing remedial training, support and advice for Doctors following a referral either from themselves in person, the GMC, the National Clinical Assessment Service or PCTs.

139              Dr Whiteman stated that in March 2003 she took over Dr Ghosh’s case from Dr Reed Bowden who retired from the London Deanery.  Dr Ghosh had been referred to the Deanery following conditions imposed on his practice in January 2002 and subsequently in May 2003 by the CPP.  One of the conditions imposed was that Dr Ghosh must complete and satisfactorily pass the knowledge, consulting skills and clinical audit elements of the National Summative Assessment (“NSA”).

140              Dr Whiteman explained that the NSA is an examination which every GP Registrar is required to pass in order to be accredited by the Joint Committee for Post Graduate Training in General Practice.

141              Dr Whiteman said that the examination is a reliable base line test which ensures that all general practitioners entering into independent general practice have the basic skills required of a general practitioner.

142              Dr Whiteman explained that there are four elements to the NSA which are:

·         the knowledge element which is tested by means of a set of multiple choice questions, the majority of which require a “true” or ”false” answer.  It is not negatively marked.  The knowledge element of the NSA is the most straightforward part of the test and candidates will usually sit this test at an early stage of their final year of training.

·         the consultation skills element of the NSA is tested by means of the candidate submitting a video showing a number of consultations which is then assessed.

·         the audit element of the NSA requires candidates to write up one clinical audit for assessment.  The general requirement for a satisfactory audit presentation are that it must       identify the clinical issue to be addressed, show the intervention made by the practitioner and finally assess the impact of the intervention.  The write up also has to include a clinical review of the work undertaken and background information describing the topic audited and its relevance to primary care.

·         the final element involves the submission of a structured report from a training practice. However Dr Ghosh was not required to complete this element of the NSA.

143              Dr Whiteman said that in December 2003 Dr Ghosh took the knowledge element of the NSA and that this was following the London Deanery providing Dr Ghost with advice on the assessment including how to access practice papers            so that he could familiarise himself with the format of the assessment and revise for it.

144              Dr Ghosh failed the test only scoring 48.93%.   Dr Ghosh’s score was the lowest score of all those taking the test and in Dr Whiteman’s view demonstrated a very serious lack of basic clinical knowledge.  The knowledge element of the NSA is, according to Dr Whiteman, designed to test candidate’s grasp of the clinical knowledge that they will routinely need to recall if they are to practise safely as independent general practitioners.

145              Dr Whiteman went on to say that Dr Ghosh took the knowledge element test again in February 2005 and on this occasion he scored 46% which was lower than his previous score and was again the lowest score of all those taking the test.  Dr Whiteman’s evidence was that this demonstrated a continuing, very serious lack of basic clinical knowledge despite the substantial support provided to Dr Ghosh in addressing the deficiencies in his clinical practice.  She stated that Dr Ghosh’s deterioration in this key area was of very serious concern.  Her view was that Dr Ghosh is not capable of passing the NSA unless there is a radical change in his performance for the better and that on the basis of his performance over the period of more than a year she could see no basis for believing it would occur.  Dr Whiteman said that Dr Ghosh’s performance was, by some margin,  the worst she had seen in her time at the London Deanery.

146              Dr Whiteman also gave evidence that Dr Ghosh had also submitted a video for the consultation skills element of the NSA.  He had failed this element, one assessor noting that Dr Ghosh fell far short of basic competence.

147              Dr Whiteman said that Dr Ghosh had also submitted an audit on thyroid disease.  He had failed on all aspects of the audit despite significant advice from the London Deanery on how to present his work.

148              Dr Whiteman expressed the view that in all the circumstances of Dr Ghosh’s case, it was her opinion that there was little further support that the London Deanery can offer Dr Ghosh, unless he makes considerable effort himself to improve his knowledge and skills with regard to clinical practice and continuing professional development.  Dr Whiteman said that she had reflected that view to Dr Ghosh.

149              Dr Whiteman said that she had something like 70 clients who had been referred to her by the GMC, NCAS, PCTs or by self referrals.

150              Dr Whiteman explained that she assisted clients by with the use of personal development plans, guiding them to resources,  by way of a fresh start modular course, by way of group work and one to one sessions. 

151              Dr Whiteman said that she was aware that Dr Ghosh had had problems with other doctors in his practice, but she felt that Dr Ghosh knew what he had to do, but not how to achieve it.  She said that she understood Dr Ghosh had contacted other people to give him support including Dr Swanick.  Dr Whiteman has advised him on such matters as textbooks and how to prepare for the Summative Assessment and that in December 2004 he had attended a fresh start course and that he had also attended a one week course in September 2003.

152              She felt that any GP should have the knowledge to enable them to pass the MCQ at any time in their career and that she had been shocked by Dr Ghosh’s results in the summative test.  Dr Whiteman went on to say that she had told Dr Ghosh how to approach the MCQ and how to research areas of failure and that she had mentioned this to him on various occasions.

153              With regard to the video assessment she had shared the views of the six markers with Dr Ghosh.  It seemed clear that Dr Ghosh did not show the appropriate skills either in consultancy or communication.

154              She said  that she had the opportunity of observing Dr Ghosh during the fresh start course in December 2004 when he carried out a consultation with a patient who was an actor who had been briefed.  Dr Whiteman said that during this consultation Dr Ghosh had failed to pick up a lot of clues, for example, the patient was supposedly an epileptic and yet was carrying car keys which were put down on his desk without any reaction by Dr Ghosh.

155              Dr Whiteman agreed that at that time some of the GMC conditions were not standard wording and that these conditions were not negotiated with the GMC.

156              Dr Whiteman said that she had spent a maximum of six hours with Dr Ghosh and had recommended books and reading and had encouraged him to research the different areas.  She expressed the view that Dr Ghosh was in a very grim situation.

157              Dr Whiteman confirmed that Dr Ghosh had found his own trainer and mentor.  She also confirmed that a trainer structured report would normally last over a year whereas the one prepared by Dr Ahmed for Dr Ghosh was over a period of three months.

158              Dr Whiteman said that the mentor is a guide and not there to assess the Doctor.

159              Dr Whiteman stated that she felt that the biggest problem was Dr Ghosh’s failure to take responsibility for his learning needs.  She went on to say that many people that go to her have difficulty in focussing down into what they need to do, however most build up a level of insight, some fairly quickly.

160              Dr Whiteman said that she had offered every aspect of support and did not see that there was anything else that she could offer.

161              Under cross examination Dr Whiteman confirmed that Dr Ghosh would have to pass his summative assessment in order to be able to enter the Returner Scheme.  She expressed the view that she did not believe that he would be able to pass that test.

162              Under re-examination Dr Whiteman said that she felt that Dr Ghosh did not seem to have the capacity to build up insight.

163              Dr Whiteman struck us as a fair and sensible witness.

 

Evidence for the Appellant

Dr S K Ghosh

164              Dr Ghosh confirmed that he was a Registered Medical Practitioner and that he qualified in 1970, coming to the United Kingdom in 1974 and that in 1979 he commenced his vocational GP training which was completed in l980.  On qualifying as a General Practitioner he joined the Greenwich and Bexley FHSA, as it was then, and has been a GP in South East London from then until now, i.e. a little over 25  years.  Throughout that time Dr Ghosh has been working in the same practice in Plumstead with a variety of assistants and principals and, at one stage, a partner.  For the last six years he had a permanent assistant Dr Rahman and, in addition, other members of staff.

165              Dr Ghosh stated that his practice is situated in an area of significant social deprivation with a high immigrant and ethnic population.  Dr Ghosh said that the demands on GP’s practising in his area have always been high and at about the time his difficulties started his list size went up to 5,500.  Dr Ghosh feels that he is a popular practitioner and puts that down, at least in part, to the fact that he works long hours at the surgery, he has never turned a patient away and is fortunate enough to speak a number of Indian languages and Urdu which means that he can communicate well with local people.  He is also willing to visit patients in their own homes when required.

166              Dr Ghosh stated that in December 1999 the then Bexley and Greenwich Health Authority wrote to the GMC drawing their attention to a number of concerns they had about various aspects of his performance.  Dr Ghosh agreed to undergo a full assessment.  The assessment procedure went ahead and the matter was listed for hearing in January 2002 before the CPP.

167              Dr Ghosh said that the CPP noted that he was a hard working and compassionate Doctor working in a multi-cultural practice with social deprivation.  However, the CPP concluded that Dr Ghosh’s performance had been seriously deficient and directed that his registration be subjected to conditions for a period of 15 months.  Those conditions included a requirement that he be attached for an initial period of three months, on a full time basis, to an experienced G.P. trainer.  Further, that after that initial three month period he be engaged for a minimum of two days a week in approved mentor activity within his own practice which was to be for a period of nine months.  There were additional conditions.

168              Dr Ghosh explained that he had had considerable difficulty in finding a suitable NHS trainer and explained the various steps he had taken to find such a person.  Dr Ghosh said that he received no help whatsoever from the PCT.

169              Eventually after almost four months he found an appropriate trainer Dr Ahmed and he started his training in May 2002, but by then he was already four months behind in his timetable.  Dr Ghosh pointed out that Dr Ahmed, in a report dated 23 August 2002, had noted improvements in Dr Ghosh’s knowledge and skills and anticipated further improvement following the mentoring specified by the GMC.

170              Dr Ghosh then gave evidence as to the difficulties he had with the PCT in obtaining permission to return to work and in particular the PCT’s concerns over his list size.

171              Dr Ghosh recruited a Dr Essien, a vocational GP who joined the practice in or around October 2002, the aim being for him to become Dr Ghosh’s partner.  This had added to the delay and Dr Ghosh was now 11 months into the 15 month period.  Dr Ghosh found himself a suitable mentor, Dr William Cotter, who was approved by the Deanery and twice weekly meetings were arranged with Dr Cotter at Dr Ghosh’s surgery.  This was at Dr Ghosh’s expense and again he states that he was given no assistance by the PCT.

172              On the 7 May 2003 Dr Ghosh’s position was reviewed by the CPP.  Given the difficulties Dr Ghosh had in recruiting a trainer and dealing with his list size in order to be able to return to work, he had to concede at the review hearing that despite having made some progress, the programme was not complete.  The CPP stated that they were pleased to note that Dr Ghosh had made some progress and that he accepted that the programme of mentoring and remedial training was not complete.  Accordingly Dr Ghosh agreed to a further period of conditional registration.  The CPP determined that for a period of nine months his registration would be subject to broadly similar conditions as previously, but in addition he was required to complete and pass the knowledge, consulting skills and clinical audit elements of the NSA and to undergo an independent assessment of his medical records.

173              During this period of time there had been difficulties so far as Dr Ghosh was concerned in relation to Dr Ghosh’s treatment of Matthew Chapman, a Radio Five Live investigative journalist.  This resulted in a hearing before the GMC Conduct Committee on the 23 July 2003 when Dr Ghosh was found guilty of serious professional misconduct as a result of which the GMC Conduct Committee decided that a period of conditional registration would be appropriate and imposed a condition that Dr Ghosh should not prescribe directly or indirectly drugs of addiction or their substitutes, to patients who he knew or suspect to be, or have been, misusing, or dependent upon, drugs of addiction.

174              Dr Ghosh explained that the matter of his performance came back before the CPP in February 2004.   By this time he stated that he had taken and failed the MCQ examination of the NSA.  Dr Ghosh said that with the benefit of hindsight he had inadequately prepared for the examination and did not appreciate how difficult it was going to be to pass it.  He felt that having qualified in 1980, and like other practitioners of his generation, found it difficult to take this type of examination and he felt that his revision and preparation were inadequate.  He also confirmed that due to factors beyond his control the GMC assessment of his medical records were not available to the CPP.  The CPP acknowledged that the problem with the medical records was due to delay on the part of the GMC.  The CPP determined that the period of conditional registration should once again be extended and they decided to impose conditions on Dr Ghosh’s registration for a further period of 12 months.  Many of the conditions were according to Dr Ghosh the same, or very similar, to those imposed previously, but he was once again required to satisfactorily complete and pass the knowledge, consulting skills and clinical audit elements of the NSA.

175              Dr Ghosh confirmed that unfortunately he failed the MCQ for a second time in February 2005.  He stated that he took the examination at a time of great stress and difficulty for him and that in retrospect he was trying to do too much at one time and should have deferred the examination to allow himself sufficient time to prepare properly.

176              Dr Ghosh stated that on the 29 July 2004 Dr Essien left his practice following a period of protracted negotiation regarding him joining as a partner during which Dr Ghosh and Dr Essien could not agree what they both regarded as a fair and appropriate division of finances.  Dr Ghosh said that Dr Essien left on bad terms and on the 4 August 2004 sent a letter of complaint to the PCT making various anonymised, undated allegations in relation to Dr Ghosh’s treatment of various patients.  Dr Ghosh explained that at the hearing before a panel of the PCT which took place on the 17 August 2004, on the basis of Dr Essien’s allegations the PCT decided that it should suspend him from the PCT’s Performers List whilst an investigation into Dr Essien’s complaints was undertaken.

177              The CPP resumed its consideration of Dr Ghosh’s case on the 2 September 2004.  The CPP were of the view that insufficient progress had been made particularly in relation to the requirement that Dr Ghosh passed the NSA and also as concerns had been raised following the independent assessment of his medical records which had raised concerns in respect of his record keeping.  The CPP therefore decided to suspend his registration for a period of six months and Dr Ghosh stated that the CPP noted that they were satisfied that this was sufficient, and necessary for the protection of the public and proportionate.  It appears that further submissions were made as to whether the suspension should take effect immediately and the GMC determined that this would be disproportionate.  Dr Ghosh has appealed against the suspension and that appeal has not as yet been heard.

178              Dr Ghosh said that he had heard nothing further from the PCT with regard to the enquiry into Dr Essien’s allegations.

179              Dr Ghosh then went on to give evidence as to receipt of the letter from the PCT dated the 12 October together with a bundle of accompanying documents.  He said that the letter informed him that the PCT was considering whether or not to remove him from its Performers List and contained a summary of the allegations against him noting that full details of the allegations were provided in the attached statement of case and supporting documentation.  He telephoned his solicitor at the MDU who told him to forward the bundle of documents in the post to her immediately which he did.  His solicitor telephoned him on the 27 October to say that the Statement of Case setting out the allegations referred to was not enclosed.  She wrote to the PCT requesting the Statement of Case and received it by fax that day and forwarded it to Dr Ghosh who received it on the 28 October.  Dr Ghosh says that he applied to the PCT to have the matter adjourned, as did his solicitor.  The PCT refused to delay the hearing.  Dr Ghosh also complained that the letter of the 12 October made it clear that although he could have a friend or representative present with him, he was not permitted to be legally represented at the forthcoming hearing..

180              The oral hearing took place on the 11 November 2004 and Dr Ghosh received a letter dated 22 November 2004 notifying him that the PCT had decided that his name should be removed from the Performers List.

181              Dr Ghosh said that as a result of the suspension on the 17 August he had been unable to practise, but he had attended various courses and other educational activities, details of which he provided.

182              Dr Ghosh stated in his evidence that his efforts to address the deficiencies identified by the GMC’s performance assessment are ongoing and that he has put considerable effort into the process.  However, he complained that he does not feel that he has received the help he had hoped to receive from the PCT.  For example, he has had to pay the GP trainer himself as he has also had to pay his mentor Dr Cotter.  He has also had to bear the costs of employing a locum whilst he was away from his practice for three months’ training with Dr Ahmed.

183              Dr Ghosh is planning to re-sit the MCQ component of the NSA in September 2005.  Further, Dr Ghosh says that the QOF review report confirmed that the practice can provide good service to patients and recognised that the practice is a very friendly practice in a severely deprived area.  He also drew to our attention the fact that in both 2003 and 2004 the practice was awarded a certificate of achievement in relation to its prescribing targets.

184              Dr Ghosh accepted that his clinical skills and knowledge base have been somewhat eroded by the high demands of his extremely busy practice and workload and that he is working hard to address the deficiencies identified by the GMC.

185              Dr Ghosh gave extensive evidence about the history to his practice and the work undertaken by him within his practice and his commitment to his practice and patients.

186              Dr Ghosh gave further evidence about his mentoring with Dr Cotter and the amount of time that he had had to be out of the practice, the costs involved in employing locums and the steps he took to reduce his patient list.

187              Dr Ghosh emphasised that he had endeavoured to study and to read, but that his overall commitments, so far as time were concerned, were very substantial.

188              In answer to Dr Garcha Dr Ghosh stated that he was prepared to study hard and to employ someone to help him with the Summative Assessment of the NSA and, in particular, he mentioned a Dr Peter Barker.

189              Dr Ghosh was then cross examined by Mr Garnham.

190              Under cross-examination Dr Ghosh said that there were areas where he needed to improve and he felt that he could improve.  He accepted that his list numbers had been very high, he also accepted that his medical records may not have been good enough, but on the other hand he was working very hard and he had received no complaints of negligence in the 25 years he had been practising in Plumstead.

191              Dr Ghosh said that he had conceded to the GMC that there were serious deficiencies in his practice and said that he would apply himself to remedying this situation.  He accepted that the purpose of the conditions imposed upon him by the GMC were to improve his practice.  He confirmed that he had seen a copy of the assessment report prepared by the GMC and that he had read it and that it was for him and his team to remedy the issues and deficiencies.  He felt that it was also an obligation of his other colleagues in the practice.

192              Dr Ghosh said that he was doing a lot to achieve this, but he was currently not being allowed to practise by the PCT and that he had not had any help from the PCT.  Dr Ghosh felt that it was not just his job to remedy the deficiencies.   He accepted that GP’s are independent contractors.  He felt that the lack of resources was a problem and that it was for the PCTs to train GPs.  Dr Ghosh said that he was supposed to keep up to date, but he needed the resources to do so, for example to pay locums etc.  When pressed about this matter he accepted that it was for him as a practitioner to keep up to date.

193              Dr Ghosh repeated that he felt that he did not get any support from the PCT and that the PCT should pay for his mentor Dr Cotter because he has a deficiency and it needs to be remedied.  He should be supported by the PCT.

194              Dr Ghosh agreed that the issue of his list size came out of the assessment completed for the GMC and the CPP’s decision.  He expressed the view that he had had a substantial list size for many years and no complaints had been received, but accepted that it was probably better to reduce his list to enable him to look after patients better.

195              Dr Ghosh said that he intended to reduce the list the way he wanted to and that he objected to the approach adopted by the PCT.  He accepted the PCT had come to see him to discuss how the reduction in his list size could be managed, but in his view Mr Burden had not done anything and wanted to harass his patients.

196              We noted that Dr Ghosh was reluctant to answer questions from Mr Garnham and was not prepared to give direct answers and on more than one occasion he had to be reminded of the procedures and that he was obliged to answer questions put to him.

197              Dr Ghosh said that he was familiar with the conditions imposed in 2002 and accepted that he had been back before the CPP in January 2003.  Dr Ghosh stated that he was trying to deal with his patient consultations in a more elaborate way and was endeavouring to prepare better histories for referring patients to hospital.

198              Dr Ghosh said that he agreed to the further conditions being imposed upon him and that he did understand his deficiencies and that he was endeavouring to remedy this by reading all the medical journals.

199              Dr Ghosh said that he reads in his own time and he attends educational courses and speaks to other colleagues.

200              With regard to the announcement by the Chairman of the CPP on the 9 February he accepted that the committee were concerned that a great deal of work remained to address his clinical deficiencies and he confirmed that he accepted that this was the case.  He also accepted the committee’s comments that further improvements are required before he was able to return to unrestricted practice.

201              Dr Ghosh said that he had not improved because he had been too busy in his practice, but he is now working at it, but he needs more study time and to attend more meetings.  He felt that his suspension by the GMC was mainly due to his record keeping and he had appealed against it.  The basis of this appeal was that if he was suspended he would not be able to improve his record keeping skills.  He said that he had had no complaints from patients.  Dr Ghosh said that he did not know what fundamental changes the CPP were referring to, he said that he did not understand what changes they intended.

202              Dr Ghosh said that he was trying to comply with all the conditions.

203              Dr Ghosh said that he accepted that Ms June Hitchcock’s letter was potentially very serious.  His vaccines were not being stored properly.  He said that he did not know about the vaccine storage, they were travel and children’s vaccines and they were the responsibility of the practice nurse and health visitor.  Dr Ghosh said that the last practice nurse had left six months before June Hitchcock’s review and that he had had a locum practice nurse during that period.  Dr Ghosh suggested that the vaccines used in the surgery came from the local community pharmacy.

204              Dr Ghosh said that he could not remember what had happened in April 2003 and that he thought these vaccines had probably been stored for the purposes of disposal.

205              With regard to the steam sterilizer, Dr Ghosh said that when the issue was drawn to their attention the Practice changed their system and had since used disposal equipment.

206              Dr Ghosh said that with regard to Dr Spencer he had not had a chance to read in preparation for the tests and that he did not agree that he had a problem.

207              With regard to Dr Kheraj he said that he wanted funding from Dr Kheraj and that was the reason he had approached him.  He said that Dr Kheraj had asked for information which he thought he had given to him.  He said that Dr Kheraj was sick and he remembered filling something in for him, but he cannot remember the exact details and he could not remember if he had sent him an action plan.  If someone had asked him to do something then he would have done it.  He said at the same time he was also seeing the London Deanery and posed the question as to how much he could have been expected to cope with.

208              When asked about his meeting with Dr Kheraj on the 30 June he said that he could not remember many things about the meeting, for example he could not remember if he produced a reflective diary and he could not remember what Dr Kheraj had said about medical records.  Dr Ghosh said that he was seeing Dr Cotter and the London Deanery and he did not feel that there was any need for him to see Dr Kheraj.  He was not terribly sure whether Dr Kheraj was trying to help him.  Dr Ghosh said he could not remember if Dr Kheraj had prepared a table for him or not.  He said he could not remember if he completed the table with Dr Kheraj or whether Dr Kheraj completed columns four and five of the table produced by Dr Kheraj.

209              Dr Ghosh said that he could not remember if he had received a letter from Dr Kheraj on the 17 October 2003 nor could he remember if he had replied to that letter.  He had left messages on the telephone for Dr Kheraj.  Dr Ghosh was not terribly sure if Dr Kheraj went out of his way to support him.  He said that he had received plenty of support already.

210              Dr Ghosh accepted that he had had several hours with Dr Whiteman, he felt that with due respect to Dr Kheraj, Dr Kheraj was not a tutor or a trainer or a course organiser.  Dr Ghosh said that Dr Reed Bowden told him to see Dr Kheraj in order to obtain finance.

211              Dr Ghosh said that in 2004 he had been terribly busy, he had to deal with the GP appraisal and doing the QOF as well.  He said that he always tries to do what the Health Authority asks of him. 

212              He said that when he took the second MCQ test he did not have time to prepare for it.  It was during his period of suspension.

213              Dr Ghosh was then asked questions about how busy he was and his general workload, but he was extremely evasive in dealing with these issues.

214              When asked about the letter of the 12 October 2004 Dr Ghosh said that he did not read the letter fully, he simply read the first few lines and then telephoned the MDU and sent the letter and documents straight off to them and that he could not say what was enclosed with that letter.  Dr Ghosh said that he could not say what was in the bundle either.

215              Dr Ghosh said that he did complain about membership of the panel at the hearing on the 11 November 2004.  It was “like a family” and therefore not fair and that he had objected personally.  He had objected that there had been the same members from the two panel hearings relating to his suspension and removal.  He said that he could not remember the exact words he used.

216              Dr Ghosh was then re-examined.

217              Dr Ghosh said that at the hearing on the 17 August 2004 he had said words to the effect “how is it possible” meaning that all the members of the panel worked together on the same floor, it was not fair for them to take the decision.

218              Dr Ghosh said that with regard to the second Summative assessment he had found himself in a situation where he had suddenly been suspended, he had to employ a Doctor to work full time in the practice and he had to pay for that Doctor out of his own pocket.  During that period he had to deal with administration matters, train staff and spend time trying to get hold of Doctors, a new receptionist and a practice nurse.  Nevertheless despite the pressures on him, if he had any spare time, then he tried to read to improve his knowledge.

219              Dr Ghosh then gave evidence as to a private medical certificate completed by him and the circumstances of its completion.

220              Dr Ghosh then dealt with bundle 5 which was a set of copy documents submitted to us and referred in detail to its comments.

221              In answer to Dr Garcha, Dr Ghosh said that he could not remember when he completed his personal development plan, he thought it was possibly the summer of 2004.  He said that he found Dr Kheraj’s plan, or rather the templates provided by Dr Kheraj, useful.

222              Again in answer to Dr Garcha, he said that his normal working day when practising was 8.30 a.m. to 8.30 p.m.  His consultation time was in units of 15 minutes.  He felt that the practice team, many members of whom were long term, were a good team and had a good working relationship.

223              Again in answer to Dr Garcha, Dr Ghosh said that he would discuss medical issues with other Doctors as and when necessary.  Dr Ghosh said that he did not involve his team in the preparation of the audit.

224              In answer to the Chairman, Dr Ghosh said that he could not find a course to assist him with the MCQ.

225              In answer to Dr Garcha he said that he had good relationships with other GPs and had been on the LMC as a committee member between 1983 and 1992.  He cannot remember being asked about clinical issues by other members, but he had attended conduct hearings.  He said that the LMC had been helpful to him over his problems with the PCT.

226              In answer to Mrs Barducci, Dr Ghosh said that he did not accept that he was not capable of learning. He accepted that it was his responsibility to maintain and improve his knowledge.  Mrs Barducci also questioned Dr Ghosh about his memory and he replied to the effect that he did not take some things seriously and did not think that he had a poor memory.

227              In answer to the Chair, Dr Ghosh said that Dr Kheraj was not a trainer nor was he a tutor or an organiser and that he had now attended other courses.  He said that his approach to Dr Kheraj was for funding.

 

Testimonial Evidence

228              We heard testimonial evidence from Mr Andrew Lakka, Mr W P  Maini, Mr Saad Kalumba, Dr T Q Banerjee, Dr S Sellappah and Dr M S Ali.

229              Following the closing of evidence we received final written submissions on behalf of both parties, those submissions being up to the close of evidence on the 13 May.  We received the bundle of further testimonial evidence from Dr Ghosh from colleagues and patients and a petition from Dr Ghosh’s patients and we heard closing submissions from both Mr Garnham and Mr Forde.

 

FINDINGS

230              Having considered the numerous documents contained in five separate bundles, having heard the evidence and oral submissions from both Counsel together with the written submissions submitted on behalf of both parties.  Having considered the testimonial evidence we have unanimously found as follows.

231              Having heard the testimonial witnesses we are satisfied that Dr Ghosh is a popular and hardworking GP who is very committed to his patients.

232              Dr Ghosh accepts the findings of the GMC and the findings by the CPP in relation to his deficiencies.

233              This appeal is by way of a hearing do novo and the issue to our minds is whether or not Dr Ghosh can improve his core knowledge base and professional skills to a level where he can become a safe and competent general practitioner.

234              Having heard evidence at some length from Dr Ghosh we find Dr Ghosh to be both evasive, when it suited him, and when it was convenient to him, forgetful, and we find that his evidence was at best unreliable.

235              We prefer the evidence of the witnesses for the PCT and, in particular, the evidence of Dr Kheraj, Dr Spencer, Dr Whiteman and Ms Hitchcock all of whom impressed us as fair and reliable witnesses.

236              Although Dr Ghosh attempted to suggest otherwise, he eventually accepted that it was his responsibility to keep his knowledge and professional skills up to date.

237              We find, having heard the evidence of Dr Ghosh, Dr Whiteman, Dr Spencer, Dr Kheraj and Ms Hitchcock that:

(i)                  Dr Ghosh lacked basic core knowledge and professional skills across a wide range;  further those deficiencies were both fundamental and serious in nature.  By way of example his failure to pass the National Summative Assessment tests undertaken by him;

(ii)                 despite the support afforded to him he had significantly failed to improve his knowledge and skills and in particular we refer to the evidence of Dr Whiteman and Dr Spencer.

(iii)               there is a significant lack of insight by Dr Ghosh into his professional deficiencies and difficulties and a failure by him to understand what was required of him in order to fully comply with the conditions imposed on him by the GMC;

(iv)                that there appears to be an inability by Dr Ghosh to retain knowledge, for example, the tests completed for Dr Spencer in respect of the DFFP course, and

(v)                 there was a lack of genuine endeavour on the part of Dr Ghosh to retrain and learn.

238              Dr Ghosh has had a long period of time to address his deficiencies and we did not accept his argument that he had insufficient time and was under too much pressure.

239              We are unanimous in our findings that there is no realistic prospect of Dr Ghosh improving his knowledge base and professional skills to a situation where he will become a safe and competent General Practitioner.

240              So far as Dr Ghosh’s grounds of appeal are concerned we find that:

(i)                  the PCT’s removal of Dr Ghosh’s name from the Performers List was not premature, unreasonable or wholly disproportionate.  There can be no doubt that the information available to the PCT gave rise to serious concerns as to Dr Ghosh’s competence;

(ii)                 that the public could not be properly protected by the imposition of conditions;

(iii)               we do not regard the procedures adopted and consequently the decision taken to remove Dr Ghosh’s name from the Performers List were unfair and we are satisfied that at the removal hearing on the 11 November 2004 no account was taken of the allegations made by Dr Essien in his letter of the 4 August and further, we accept the evidence that the decision to consider Dr Ghosh’s removal was triggered by the decision of the CCP at their hearing on the 2 September 2004;

(iv)                we do not accept that the procedure adopted by the PCT was unfair and in breach of the statutory rules and are of the view that the PCT gave Dr Ghosh proper notice of the allegations against him in accordance with Regulation 10(8)(a) of the Regulations.

(v)                 we do not accept that the procedures adopted by the PCT were inherently unfair and contrary to the principles of natural justice and/or Article 6 of the Human Rights Act.  The PCT complied with the guidance given as to legal representation and Dr Ghosh was at all times represented by the Medical Defence Union.

241              In our view Dr Ghosh should be removed from the PCT’s Performers List on the grounds of both efficiency and unsuitability pursuant to regulations 10(4)(a) and 10(4)(c) of the National Health Services (Performers List) Regulations 2004.

242              For the reasons set out above we dismiss the appeal by Dr Ghosh against the decision of the PCT on the 11 November 2004 to remove him from its Performers List.

243              We would, however, comment that the membership of the suspension panel which sat on the 17 August 2004 was similar to the removal panel that sat on the 11 November 2004.  In particular we were concerned that Dr Challacombe and Ms Nicholls (who have an employer/employee relationship) work together in the same practice, sat on both panels.  It seems to us that it would be appropriate in such circumstances to endeavour to appoint alternative members to such panels and if necessary to endeavour to appoint members with clinical governance experience from other PCTs.

 

 

 

 

NATIONAL DISQUALIFICATION

R E A S O N S

244              Mr Garnham, in his final submissions, also argued for National Disqualification.  His argument being that Dr Ghosh not only lacked fundamental core knowledge and professional skills, but the evidence demonstrated that there was no real prospect of the possibility of Dr Ghosh improving to the position where he would be a competent and safe General Practitioner and if this were correct then this would be the situation wherever Dr Ghosh sought to practice.

245              We have given very careful consideration to the need to impose National Disqualification. We are conscious of the effects of such a disqualification upon Dr Ghosh in pursuing a career within the NHS.  We feel, however, that this must be balanced with the interests of Dr Ghosh’s potential patients and those people being served by the NHS.

246              In reaching our decision we have taken into account our findings;

(i)                  that Dr Ghosh’s core knowledge and professional skills are seriously deficient.

(ii)                 that there is no realistic prospect of Dr Ghosh improving his knowledge base and professional skills to a situation where he will become a safe and competent General Practitioner, and

(iii)               we are of the view that these issues will remain wherever Dr Ghosh wishes to practise.  We have therefore concluded that National Disqualification is necessary for the protection of patients and is proportionate in balancing that need and the proper interests of Dr Ghosh.

247              We therefore direct that Dr Ghosh shall be disqualified from inclusion in any medical performers list as is described or referred to in section 49N(1) of the Act.  We further direct that a copy of our decision shall be sent to the several bodies listed in Rule 47(1) of the Rules.

248       Finally, in accordance with Rule 42 (5) of the Rules we hereby notify that a party to these proceedings can appeal this decision under Sec11 Tribunals & Inquiries Act 1992 by lodging notice of appeal in the Royal Courts of Justice, The Strand, London WC2A 2LL within 14 days from receipt of this decision

 

 

 

 

 

Dated this 28th day of July 2005

 

………………………………………

 

Trevor Carney

Chair to the Panel