IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY
MR P KELLY - CHAIRMAN
DR T I J MANN - PROFESSIONAL MEMBER
MRS J PURKIS – MEMBER
(GDC NO: 65625)
BILLERICAY, BRENTWOOD AND WICKFORD PRIMARY CARE TRUST
BASILDON PRIMARY CARE TRUST
3. (i) The decision to remove Mr. Bal from the Dental List of each PCT was made at the same time but considered by each Trust separately and was expressed in the letters communicating the decision to be based upon an “efficiency case” - ( The National Health Service Act 1977 49F(2) as amended) and an “unsuitability case” 49F(4). Appeals to the FHSAA are by way of redetermination. The Trusts made a preliminary application for leave to amend replies to the appeal and thereby introduce material not before the Trusts when they made the decisions complained of.
(ii) The power to amend a reply is found in The Family Health Services Appeal Authority (Procedure) Rules 2001 r.41(7) which provides
“(7) At any hearing the panel may, if it is satisfied that it is just and reasonable to do so, permit a party to rely on grounds not stated in his notice of appeal or, as the case may be, notice of application, or his reply in either case and, in respect of an appellant, to adduce any evidence not presented to the respondent Health Authority or Primary Care Trust before or at the time it took the disputed decision
(iii). In refusing the application the Panel determined the new material was introduced late in the appeal; it involved issues of a technical nature which Mr. Bal had no prior opportunity to deal with; those instructed by Mr. Bal had no dental advice to assist with instructions; the character of the evidence was quite different and distinct from that upon which the Trust’s decisions had been made, and that in all the circumstances it was not just and reasonable to allow the Trusts to rely on the new material. Rightly, the Trusts did not enlarge upon the material it sought leave to rely on and its existence was thereafter disregarded. In finding as we did it was unnecessary to determine the effect of the apparent restriction at the end of r.41(7) limiting introduction of new evidence to an appellant.
4. Concern at Mr. Bal’s performance led to a meeting between Mr. Bal and the Trusts on 5th September 2003 (about six months before he was removed). The meeting was convened for the Trusts to consider suspending Mr. Bal. Mr. Bal attended with Mr. Westbury from Dental Protection. At that meeting Mr. Bal sensibly agreed that for compelling personal reasons to which we shall return, there had been considerable shortcomings in his professional practice in the period leading up to the meeting. Again, helpfully, he has conceded before us his conduct up to that time probably compromised the efficiency of the service he was contracted to provide. Promised compliance with and agreed 10 point plan persuaded the Trusts not to suspend Mr. Bal.
5. The decision to remove in April 2004 was based on the Trusts perception of Mr. Bal’s performance under the 10 point plan. The plan has the following broad headings; of which are Good Practice; relationship with the Dental Practice Board; dealing with correspondence; ensuring FP17’s are used appropriately; ensuring computer generated estimates are provided to patients at those practices at which the facility is available; CPD; reducing working hours; review with the PCTs and Health Authorities’ Dental Adviser; membership of the Adverse Risk Member Programme at Dental Protection and dealing with patient complaints.
6. It is fair to say Mr. Bal did make progress under some headings. Mr. Palmar, the Practice Owner at the Southend practice where Mr. Bal was an associate promoted an approved self-taught internal audit course on good practice for all those connected his practice. There is evidence Mr. Bal participated. Again, progress was made on CPD. Likewise he joined the Adverse Risk Programme at Dental Protection although it is not clear what later involvement it had with Mr. Bal.
7. We do however have concerns as to other matters identified in the 10 point plan. By the time of removal the Dental Practice Board had outstanding a great many requests for records of Patients. Despite attempts to clarify the position during the course of this hearing it remained unclear how many records had been requested and how many outstanding but it seems to be in the 100’s. Following the September meeting Mr. Bal obtained some records from some of the four practices at which he was an associate. There was no order or structure or other notation as to which patients’ records were submitted or from which practices the records came. On two occasions he presented himself at the DPB’s office in Eastbourne and left large numbers of un-notated patients’ record cards. The Board is still trying to introduce some order into what it has. We have heard evidence from one practice owner that about 119 sets of records were removed by Mr. Bal. We have no evidence from any other practice owner as to their position. It is fair to say Mr. Bal’s approach to clinical records remained as chaotic after the September meeting as it was before. In the meantime, and not surprisingly, the DPB were refusing to pay Mr. Bal’s claims leading to problems at the four practices from which he worked.
8. Before the September meeting, and admitted by Mr. Bal, he had not opened mail addressed to him from any supervising or monitoring body. This lead to many problems with and for his practice. He says he left the mail unopened in his car. We have no evidence from three of the practices to whom he was attached as to what instructions he left for mail to be diverted to him or dealt with on his behalf after September. The fourth practice from whom we have heard indicates little change in the instructions from Mr. Bal to staff either with regard to this or any other relevant issue. Mr. Bal repeats an ongoing theme that other people should have been helping him but support staff at the practices were not prepared to do so. He raises a similar argument when asked about post- September changes in his way of providing estimates. Again he blames the practices for not being prepared to embrace changes. We must infer there was little if no change
9 Mr. Murphy is a dental adviser for the area in which Mr. Bal practised and in July 2003 was asked to mentor him. Mr. Murphy gave advice to Mr. Bal and confirmed he would continue to be available to Mr. Bal. The fact is that despite a number of attempts by Mr. Murphy both before and after the September meeting Mr. Bal made no meaningful attempt to engage with Mr. Murphy or take advantage of the assistance that was on offer.
10 (i) Amongst correspondence not dealt with by Mr. Bal were a number of letters concerning two complaints by patients Mr.S. and Mrs. M. In the absence of replies from Mr. Bal the complainants took their complaints to the appropriate PCTs. The 10 point plan required Mr. Bal to deal with these complaint and he received assistance from the Dental Protection Society, even to the extent of it drafting suitable letters for him to write out and post. Before that however we are troubled by a telephone conversation in October 2002 between Mr. Bal and Bob Pearce a Senior Customer Services Officer with a relevant PCT. Mr. Bal has no recollection of the call. We are sure it took place and was as described by Mr. Pearce. It concerned a request to Mr. Bal for the notes for patient Mr.S .The call contained overtly racist remarks directed by Mr. Bal to Mr. Pearce and also inappropriate threats to sue Mr.S.
(ii) Part of the local resolution of Mr. S’s complaint included convening an Independent Review. Notice was sent to Mr. Bal on 20th January 2003 for a hearing on the 10th March. He did not respond so was telephoned by Mrs. Crowley, Consumer Services Officer with Chelmsford PCT, on 7th March. He there gave the impression ( and confirmed it by fax on the 10th March) he had previously told her office that he would not be able to attend and had so confirmed it to them in writing. No trace of that conversation or correspondence could be found. We are sure Mr. Bal’s claim is not true but rather an opportunistic dissembling to avoid facing his professional responsibilities.
(iii) Amongst the bundle of papers handed to the Trusts at the removal hearing in April were copies of the two handwritten letters addressed to the complainants, Mr. S. and Mrs. M. dated October 2004.The letters contain fulsome apologies and attached forms for them to sign and return whereupon he would repay apparent overpayments. The letters were settled by the Dental Protection but are in the hand of Mr. Bal. We have heard oral evidence from Mr. S. He never received this letter. Mrs.M. has tendered written evidence which also indicates she never received her letter. Mr. Bal is sure he sent the letters by 1st class mail but never received replies. We are careful as to how we handle this material given there was no opportunity for Mrs. M. to be cross-examined It is important evidence, striking as it does at the credibility of Mr. Bal. Reminding ourselves, as we do, the burden is on the Trusts and Mr. Bal has nothing to prove, we are sure those letters were not sent and is another example of Mr. Bal’s willingness to misrepresent the facts, this time in an attempt to colour the Trusts decision to remove.
11. The significance of the findings at 10 is to be found in the remarks of of Burnton J in Kataria v Essex Strategic Health Authority (2004EWHC 641 (Admin) para 69.
“ In my judgment it is obvious that the efficiency of the NHS might be prejudiced by a want of probity of a practitioner, and in particular of any unreliability of his written or oral statements. Fellow practitioners and other NHS staff and patients must be able to rely on the integrity of doctors and the honesty of their statements. The FHSAA is entitled to take into account any want of probity found by it on the part of a practitioner in determining whether his inclusion in a list would be prejudicial to the efficiency of the service”.
For these purposes doctors and dentists are indistinguishable.
12. Mr. Bal should know that in finding facts adverse to him we have taken into account the considerable pressures under which he was practising at material times. It is unnecessary to recite his family problems at length but it is quite obvious he was having immense difficulty holding together his practice and dealing with outside demands upon his time and emotional energies. It was noticeable that whilst giving evidence he was slow, forgetful and at times almost incoherent when dealing with administrative/family issues but quite animated and fluent when dealing with clinical practice matters raised by our Professional Member. In the particular circumstances of the case it is hard to overestimate the adverse effect of family matters upon Mr. Bal’s ability to function as a Dentist.
13 We respectfully disagree with submissions on behalf of Mr. Bal suggesting that his admitted conduct whilst probably descending to an “efficiency case” could not also fall within an “unsuitability case”. The basis of the submission is that guidance issued to PCT’s on management of Practitioner’s Lists emphasise unsuitability as following an adverse finding by a Court or regulatory body. Indeed that is the emphasis but it also describes unsuitability as “……… a lack of something tangible relating to a persons ability to undertake his role (qualifications, experience, essential qualities);.” Whilst not having the force of law that seems a workable definition.
14. (i) The line at which an “efficiency case” (which can be dealt with by contingent removal) also becomes an “unsuitability case” (which cannot be dealt with by contingent removal) is not always easy to draw but we are satisfied on the facts as we find them that Mr. Bal’s serial inefficiency before the meeting on the 5th September 2003 added to failure to meaningfully address the 10 point plan and our further findings adverse to Mr. Bal have together taken his conduct into an “unsuitability case”. In coming to that view we are mindful of and have taken into account the criteria set out in 8B The National Health Service (General Dental Services) Regulations 1992 as amended
(ii) We dismiss the appeal and confirm the decision of the Trusts to remove him from their Dental Lists.
15 A removal on the grounds of unsuitability is almost always followed by consideration of a National Disqualification. Exceptionally we do not do so in this case. We do not want to deprive Mr. Bal of the opportunity of satisfying a PCT that the unhappy events of recent years are behind him and that he is again able to manage clinical practice. In coming to that view we have in mind there are no allegations of clinical incompetence; he remains professionally enthusiastic; the passage of time may help restore equilibrium to Mr. Bal’s professional and private life and he has been outwith the cruicible of NHS dentistry for over 12 months. Whilst not limiting Mr. Bal’s opportunities it seems from our detailed consideration of the evidence the supervision available and reduced administrative burden of those on the Supplementary List might be appropriate in the short term.
16. 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…………day of………………200
Paul Kelly - Chair