Miss R M L Hallam - CHAIRMAN
Dr S Sharma – PROFESSIONAL MEMBER
Ms J C Everitt – MEMBER
APPEAL AGAINST DECISION TO CONDITIONALLY INCLUDE ON THE PMS LIST
a) Dr X is a general practitioner who began to work in the area in 1999. He worked abroad before coming to the United Kingdom. However, he told us that, having worked in various posts in Britain, he found it difficult to find work at Consultancy level and therefore became a general practitioner.
b) Whilst in the area in question, he worked principally in two practices. He was also worked with an on-call service.
c) In June / July 2003, two female patients of that service complained that Dr X had examined them inappropriately. A further complaint was then made by a member of staff that Dr X had behaved in an over familiar manner towards her. On 23 July 2003 the service suspended Dr X.
d) The Local Medical Committee and the Primary Care Trust (PCT) were both informed of the allegations and investigations began. The person who carried out the enquiries on behalf of the PCT was the Director of Public Health. During the course of those investigations, an earlier complaint came to light which had been made whilst Dr X worked at different surgery.
e) Dr X ceased to carry out his duties at one of his surgeries, initially due to ill-health caused by the stress of the situation and subsequently following his resignation from the practice.
f) The General Medical Council (GMC) was informed of the allegations and the matters were considered by both the Interim Orders Committee and the Preliminary Proceedings Committee.
g) The Interim Orders Committee notified Dr X of its decision and stated that it was not satisfied that it was necessary to make an interim order under S41A of the Medical Act 1983.
h) The Preliminary Proceedings Committee considered Dr X’s case and determined that the matter should not be referred for public enquiry by the Professional Conduct Committee. The letter setting out that decision is dated 7.1.2004 and contains a written warning to Dr X as follows:-
“The committee asked that you be warned that in future you must ensure that when you intend to conduct an intimate examination, you must explain what you are going to do . A chaperone should be offered if appropriate. You are also warned to act in a professional and appropriate manner towards colleagues”
The letter also informed the Doctor that if further complaint is received within the next two years the Committee could review its decision not to refer the matters to the Professional Conduct Committee and if further complaints were made after the period of two years had elapsed the committee could take account of the warning it had issued.
i) The PCT then issued an alert letter in respect of Dr X.
j) The following month that alert letter was rescinded by the PCT following an appeal by Dr X.
k) Meanwhile, Dr X had applied for inclusion in the PCT’s PMS Service List.
l) On 3.2.04 the PCT notified Dr X of its decision to conditionally include him in the PMS Services List.
2) THE APPLICATIONS BEFORE THE TRIBUNAL
a) The conditions imposed upon Dr X by the PCT are set out in their letter of 3.2.04 and are the following:-
1) You shall not work as a principal or partner within general medical practice nor in a deputising service nor as a locum
2) You shall not examine female patients without a chaperone being present
3) You shall notify any employer or prospective employer of these
conditions before commencing that employment.
b) On the 13.2.04 Dr X, through his solicitors, appealed to the FHSAA against the PCT’s decision to grant only conditional inclusion in the PMS Services list.
c) On the 8.3.04 the PCT responded to that appeal by letter to the FHSAA.
d) On the 19.3.04 the PCT wrote to Dr X amending the conditions they sought to impose on his inclusion in the list. They reduced the conditions to two as follows:-
1) You must ensure, when undertaking intimate examinations that you explain why an examination is necessary and what you are going to do. You should offer a chaperone or invite the patient to have a friend or relative present. If the patient does not want a chaperone, you should record that the offer was made and declined. If a chaperone is present this should be recorded and a note made of the chaperone’s identity. This is consistent with GMC guidance.
2) You should notify any employer or prospective employer of these conditions before commencing employment.
e) In that letter the PCT made it clear that they did not oppose Dr X’s original appeal against the three conditions imposed on 3.2.04.
f) On 25.3.04 Dr X, again through his solicitors, appealed to the FHSAA against the imposition of the two conditions set out in the PCT’s letter of 19.3.04.
g) All parties agreed that the tribunal was solely concerned with Dr X’s appeal against the 2 conditions set out in the PCT’s letter of 19.3.04 and it was agreed that the PCT no longer sought to impose the condition that Dr X was not to practice as a principal, partner nor in a deputising service nor as a locum.
3) THE LAW
a) The Health and Social Care Act 2001 adds S49(M)(3) to the National Health Service Act 1977 stating that an appeal to the FHSAA shall be by way of redetermination. The 2001 Act also added s49(M)(4) to the 1977 Act allowing the FHSAA to make any decision which the PCT could have made.
b) S49F of the 2001 Act sets out the three conditions which can lead to the disqualification of practitioners and cases are divided into the following three categories:-
1) “An efficiency case”
2) “A fraud case”
3) “An unsuitability case”
c) Those three categories are replicated in the associated regulations ie The National Health Service (Personal Medical Services)(Services List) and the General Medical Services Supplementary List) and (General Medical Services) Amendment Regulations 2003 and The National Health Service (Performers Lists) Regulations 2004.
d) Further amendments were made to the 1977 National Health Service Act by the Health and Social Care (Community Health and Standards) Act 2003 which added S28X(6) to the 1977 Act. This section refers to the imposition of conditions on a practitioner’s inclusion in a list and reads as follows:-
“(6) The imposition of such conditions must be with a view to –
(a) preventing any prejudice to the efficiency of the services to which the list relates, or
(b) preventing fraud.”
e) Regulation 8 of the 2003 and 2004 regulations also reflect the requirement that any conditions imposed upon a practitioner should be for the purpose of preventing fraud or prejudice to the efficiency of the service.
f) We also had in mind the guidance set out in the Guidance Document of May 2002 headed “ Delivering Quality in Primary Care” which at para 3.2.14 page 26 states:-
“The conditions cannot relate to issues of suitability. Therefore conditions such as:-
i) that the doctor avoids future convictions related to alcohol abuse;
ii) that because of a history of convictions for sexual offences that the doctor should only see certain patients if accompanied,
are unlikely to be appropriate.”
4) THE ALLEGATIONS
a) The PCT in this case was not legally represented and it was not apparent from their documentation exactly what factual basis they relied upon for the imposition of the conditions upon Dr X.
b) On questioning by the tribunal it became clear that the PCT relied upon 4 incidents of complaint against Dr X together with the fact that there were currently further matters being considered by the GMC.
c) The allegations against Dr X were as follows:-
1) A complaint by a female patient, Ms H, that in September 2000 Dr X had conducted an unnecessary vaginal examination and in doing so had inappropriately touched her clitoris.
2) A complaint by a female patient, Ms B, of the GP On-Call service in June 2003 that Dr X had inappropriately touched her breasts during the course of a chest examination for a respiratory problem.
3) A complaint of a similar nature to (2) made by the mother of a 13 year old girl, Ms C, who had consulted the on –call service in June 2003 about a respiratory problem who alleged that the Doctor had examined her daughter’s breasts unnecessarily.
4) A complaint by a female [member of staff], Ms D, that Dr X had behaved in an over-familiar way towards her in that he had hugged her, sat her on his knee and stroked her back.
d) The matters pending before the GMC were incidents that dated back further in time and involved allegations of:-
i) tampering with records
ii) the carrying out of unnecessary vaginal examinations on pregnant women.
e) The PCT accepted that the issue of tampering with records was irrelevant to the conditions which the tribunal were considering and consequently they did not enter into our deliberations.
f) All the allegations that had to be considered by the tribunal, therefore, contain to a greater or lesser degree, an element of indecent assault. It is for this reason that the police became involved in 2003. Dr X went voluntarily to the police station and was interviewed. In due course, the police informed Dr X that no further action was being taken by the police in respect of the “Investigation of Alleged Indecent Assaults”.
g) It seemed to the tribunal that, although the PCT sought to argue this was an “efficiency” case, the case against Dr X fell into the category of an “unsuitability case” and that if the allegations were satisfactorily proved then this would not be a case where a conditional inclusion in the list was appropriate in any event.
h) Nevertheless, as the PCT sought to argue that this was an “efficiency” case the tribunal considered the allegations and all the oral and written evidence in its entirety with both the issues of “unsuitability” and “efficiency” in mind.
4) THE EVIDENCE
a) As stated above the allegations made against Dr X were serious and if proved amounted to criminal offences. In considering the evidence the tribunal used the standard of the balance of probabilities as defined by the House of Lords in the case of In re H and Others (Minors)(Sexual Abuse: standard of proof)  1AER1 ie that although the standard is the balance of probabilities, the more serious the allegation, the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.
b) The tribunal did not have oral evidence from any of the complainants before it. There were, however, written statements from each complainant which had been obtained from them by the Director of Public Health during the course of her enquiries.
c) In addition the tribunal had before it an extract from the written report of Dr Y dated 10 November 2003. Dr Y had been instructed on behalf of Dr X to give an opinion on the Doctor’s conduct before the GMC. Dr Y had also had sight of an earlier undated report of Dr Z also provided for the GMC.
d) Dealing with each allegation in turn:-
Ms A attended her surgery in September 2000 because a vaginal cyst had recurred. She was accompanied by her husband. She was seen by Dr X. Dr X told Ms A that he would need to look at the cyst. Accordingly Ms A undressed from the waist down and the Doctor examined her; in doing so she alleges that he moved his fingers around her clitoris. Her husband was present at all times although the examination took place behind a curtain.
Drs Z and Y are both of the opinion that a physical examination in such circumstances was entirely appropriate and clinically indicated. Dr Y goes further in his report stating at para 2.19 that he considered such an examination to be mandatory. Dr Y provided an extract from a medical textbook illustrating the nature of a bimanual vaginal examination and is of the opinion that “it is entirely possible that inadvertent touching of the clitoris can occur”. Neither Doctor is in a position to give an opinion as to whether the touching was deliberate or not.
Both Doctors note that Mr A was present at all times throughout the examination and effectively represented a reasonable chaperone in the circumstances.
Both Doctors note that although Ms A subsequently felt that no explanation had been given as to the necessity for or the nature of the examination she undressed and lay on the couch and therefore impliedly gave consent for the examination.
Doctor X in his oral evidence explained that he felt that his manner with patients and staff may have been more suited to a busy hospital situation than the more personal approach of general practice.
Bearing in mind, as we do, that this a serious allegation made against Dr X it is our judgement that the evidence before us is not sufficiently cogent to prove it. It may be that Dr X’s manner was abrupt and that he did not give sufficient explanation to Ms A as to what he intended to do but we find that the evidence falls far short of proving that he, in effect, indecently assaulted her.
In June 2003 Miss B consulted the on – call service because she had stomach pains, headache and problems breathing. She was seen by Dr X who examined her with a stethoscope. She alleges that while doing this he exposed both her breasts and held her right breast whilst listening to her chest. No chaperone was present.
We have been provided with the GMC guidance for “Intimate Examinations” these are defined as “examinations of the breasts, genitalia or rectum”. Although the Director of Public Health (who was not medically qualified) speaking on behalf of the PCT, was of the opinion that a chest examination was an “intimate examination” we are satisfied that this examination was not an “intimate examination” and that a chaperone was not necessary. The tribunal felt that if all chest examinations were to be considered intimate examinations this would have significant staffing and resource implications for the NHS,
The allegation of inappropriate touching of Ms B’s breasts is a serious one, we are not satisfied that there is sufficiently cogent evidence to prove that there was deliberate inappropriate contact.
Ms C was a 13 year old girl who attended the on-call service in July 2003 complaining of a cough and a wheezy chest. She was accompanied at all times by her mother who had had some training as a midwife. Dr X again carried out a chest examination using a stethoscope.
Both mother and daughter complain of Dr X’s rude and abrupt manner. The mother felt that the examination was unnecessary.
As in the case of Ms C, this was not an “intimate examination” within the definition of the GMC guidelines.
It is the judgement of the tribunal that a chest examination was appropriate.
In any event the mother was present at all times during the examination which occurred in her full view, therefore we conclude a suitable chaperone was present.
This complaint led to a strategy meeting of the local Child Protection Committee, because it involved a child. That meeting was attended by representatives of the social services, health services and the police. A strategy was agreed in case the press should become involved. The police were to interview any new complainants and investigations were to be made as to Dr X’s previous employment. In the event none of this became necessary and as already mentioned the police indicated in October 2003 that no further action would be taken.
As with the case of Ms B it is our judgement that there is insufficient evidence to cogently prove that Dr X deliberately and unnecessarily touched Ms C’s breasts.
Ms D worked at the on-call service. She alleges that Dr X was over-familiar with her on a number of occasions which caused her distress. She eventually complained to her aunt who also worked at the service and one of the other Doctors was alerted. He spoke to Dr X and the situation was resolved. In due course Dr X was invited back to work with the service.
These allegations did not relate directly to patient care and have been resolved within the service. In our judgement these allegations, even if proved to the requisite standard which in our view is unlikely, could not be the basis for imposing the conditions appealed against.
These relate to 2 incidents that occurred at a surgery in February / March 2003.
We have seen a statement from the Team Midwife, the Practice Nurse and a letter from the Head of Midwifery relating to these matters. The allegations are that Dr X on two occasions carried out unnecessary vaginal examinations on two pregnant women.
Neither of the patients has made a statement of complaint. All that is available to the tribunal are two hearsay statements from the team midwife and the practice nurse. The Head of Midwifery states in her letter that although the examinations were unnecessary nowadays, in the past GPs would have carried out vaginal examinations in the circumstances presented by these two cases. She recommends that Dr X should update his practice and follow the chaperone policy.
In the absence of any primary evidence from the complainants and the evidence of past practice by GPs from the Head of Midwifery we are not satisfied to the requisite standard that either of these allegations are proved.
a) The tribunal concluded that this was an “unsuitability case” rather than an “efficiency case” and that therefore it is not possible to impose conditions on Dr X’s inclusion in the list.
b) As the tribunal did not find any of the allegations proved to the requisite standard, the question of suitability does not arise.
c) Having tested the evidence also as if it was an “efficiency” case the tribunal would not, on the written and oral evidence before it, have felt it appropriate to impose conditions.
d) Each of the allegations made against Dr X were of a serious nature amounting to indecent assault. The tribunal was not satisfied that there was sufficient cogent primary evidence to make findings that any of the allegations were proved.
e) In the absence of such findings there is no basis for the imposition of a chaperoning condition and therefore the second condition of notification to employers must also fail.
Dr X’s appeal therefore succeeds.
It was apparent from the papers and during the course of the hearing that Dr X felt considerable resentment towards the PCT and the Director of Public Health in particular. It was clear that he felt that there was “bad blood” against him and that he was being pursued maliciously by the Trust. The tribunal conclude that whilst there was inefficiency in the communication of GMC decisions and other information the Trust was not acting in bad faith.
The tribunal felt that the Director of Public Health was in an extremely difficult position in advocating PCT’s case. As she had conducted the enquiry on behalf of the Trust, she was, of necessity, also acting as their chief witness.
It would have been helpful for all parties if the PCT had sought legal representation and advice.