IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY
CASE NO: 12187
Mr C Barker - Chairman
Dr I A Lone - Professional Member
Mr C M Barnes - Lay Member
DR RICHARD BRYCE FRANKLIN
(GMC No: 2359153)
STAFFORDSHIRE MOORLANDS PRIMARY CARE TRUST
DECISION AND REASONS
The matter before us
The Appellant appeals against the Respondent’s decision, made on 1st November 2005, by which the Respondent refused to include the Appellant in its Performers List (PL) as a locum under Regulation 6 of The National Health Service (Performers Lists) Regulations 2004 (the Regulations). Under Regulation 15, the appeal is by way of redetermination and the Panel may now make any decision which the Respondent could have made.
The appeal was first listed before us on 14th March 2006, when it was adjourned part heard to 2nd May 2006 and, on that date, further adjourned part heard to 30th May 2006. At the conclusion of the hearing on 30th May 2006, the Panel decided to reserve its Decision and this is that reserved Decision.
The Appellant was represented by Mr Andrew Hockton of Counsel and the Respondent by Mr David Lock of Counsel.
Prior to the hearing, all three members of the Panel had signed a declaration to the effect that they did not have any “interest” in the appeal which would preclude them from hearing it in an independent and impartial manner and this fact was communicated to the parties at the outset of the hearing on 14th March 2006. Counsel for both parties confirmed that they had no objection to the case being heard by any member of the Panel.
Prior to and at the hearing, both parties produced written evidence and written submissions. They are contained in the case papers in three separate bundles and are numbered A1 to A49, 1 to 52 and R1 to R159. In addition, at the hearing on 30th May 2006, the Appellant produced a copy of the The National Clinical Assessment Service Handbook (Autumn 2005) and Mr Lock produced a written document entitled “Closing Submissions.” These two documents were not numbered at the hearing itself but are now included in the case papers. The Panel have read and considered all the documents referred to with the exception of the written statement of Sarah Bates-Peake (R17 to R19). This was in fact read by the Panel prior to the first hearing. However, at the hearing on 2nd May 2006, Mr Lock, with the consent of Mr Hockton, decided not to call her as a witness nor adduce in evidence her written statement. The Panel have not, therefore, taken her written evidence into consideration.
In addition to the written evidence, during the course of the hearing, the Panel heard oral evidence called on behalf of the Respondent from Dr John Chesworth (the Respondent’s GP Medical Adviser) and Mr Jon Holliday (the Respondent’s Director of Primary Care and Service Improvement). The Panel also heard oral evidence from the Appellant himself and from his brother, Dr Peter John Franklin, called on the Appellant’s behalf.
Brief Summary of Background and Chronology
The Appellant’s full curriculum vitae is set out in the documentary evidence (pages 19 and 20). However, from June 1998 to December 2003, he was a single handed general practioner at a surgery in Newcastle-under-Lyme. During the majority of this time, he was also carrying out part time work as a Medical Officer for the Benefits Agency.
In June 1999, the North Staffordshire Health Authority introduced a scheme by which the performance of their GPs could be assessed. Details of the scheme are at pages R121 to R130 of the case papers. This resulted in a visit to the Appellant on 25th May 2000 by the witness, Dr John Chesworth ( then the Medical Director of GP Services for the North Staffordshire Health Authority), Dr Alison Irvine (the GP Post Graduate Tutor) and Dr Pravin Shah (a member of the GP Support Group).The objective of the visit was “to attempt to assess areas of practice under performance and to identify particular problematic issues and to agree a time action plan for addressing them” (A27). The visit identified concerns in respect of immunisations/vaccinations, prescribing, chronic disease management, post graduate education, availability and referral letters. The result of the visit was an Action Plan and the concerns and the Action Plan are set out in Dr Chesworth’s letter of 25th May 2000 (A27 to A30), in his fax of 5th June 2000 (R67) and in a letter from Anne Antoszewski of 23rd June 2000 (R68). In the concluding paragraph of his fax, Dr Chesworth states: “As a result of our visit, I do feel that with help and support,significant improvement is achievable.”
In January 2002, the Professional Conduct Committee (PCC) of the General Medical Council (GMC) found the Appellant guilty of serious professional misconduct in connection with the internet prescribing of Viagra and Xenical. As a result, the PCC suspended his registration for 3 months. The PCC resumed consideration of the Appellant’s case on 2nd May 2002 and then concluded that his registration should be subject to two conditions for a period of 12 months until 1st June 2003. However, when the Appellant again appeared before the PCC on 7th May 2003, they removed the conditions attached to his registration (R70 to R73, R75 to R82 and R86 to R88). At the hearing before us, Mr Lock informed the Panel that this reference to the PCC was “not necessarily relevant to the matter.”
In November and December 2002, the Newcastle-under-Lyme Primary Care Trust received two complaints from patients in respect of their lack of access to the Appellant’s surgery (R83 to R85).
On 30th September 2003, the Appellant was appraised by Dr Alison Irvine (A38A to A40A) and a Personal Development Plan was drawn up (A42A).
In December 2003, the Appellant resigned from his practice and has not been in general practice as a GP in this country for almost two and a half years. He did, however, continue to carry out some work for the Benefits Agency. In that respect, in his evidence before us, the Appellant stated that, having resigned from general practice, he continued to conduct assessments for Domiciliary Assessments until May 2004, at which point he was advised by the Regional Medical Adviser that he would not be permitted to conduct any further Benefits Agency work until he was on a PL.
On 10th January 2004, the Appellant applied to be included as a locum on the Supplementary Medical List of the Newcastle-under-Lyme PCT. One of the written undertakings given by the Appellant in his written application was that “I undertake to co-operate with an assessment by the NCAA when requested to do so by the Primary Care Trust.” The “NCAA” is an abbreviation for the National Clinical Assessment Authority. The Regulations came into force on 1st April 2004 and one of their effects was to replace Supplementary Medical Lists with PLs. Consequently, as the Newcastle-under-Lyme PCT did not deal with the Appellant’s application until after 1st April 2004, they treated it as an application by the Appellant to be included in their PL. In that respect, Dr Chesworth wrote to the Appellant by letter dated 19th April 2004 (R93), informing him that the PCT were “currently unable to accede to your request because of concerns about your ability to provide general medical services of a standard accepted by the PCT.” Dr Chesworth added that, as the Appellant had not undergone a GP Appraisal, then, if he wished to pursue his application, “it will be necessary for you to undergo a formal assessment by the National Clinical Assessment Authority (NCAA).” The Medical Protection Society then wrote to Dr Chesworth on 24th June 2004 (R91), seeking clarity in respect of his letter and pointing out that the Appellant had in fact undergone an appraisal in September 2003. Dr Chesworth then replied by letter of 30th July 2004 (R90), accepting that, when the PCT made their decision not to include him (R93), they did not have upto date information (ie about the existence of the appraisal). Thus, the letter invited the Appellant to submit a fresh application but the Appellant did not do so.
Finally, on 19th October 2004, the Appellant made an application to be included on the Respondent’s PL as a locum (R26 to R39). Again, one of the undertakings given by him on his written application was that: “I undertake to co-operate with an assessment by the NCAA when requested to do so by the Primary Care Trust.” The Respondent replied by letter dated 26th October 2004 from the witness, Mr Holliday. In that letter, Mr Holliday notes that the Appellant had made a previous application to Newcastle-under-Lyme PCT (he does not say to which list the application related) and states that he understands that that application had been refused “upon grounds of concern about your performance.” Mr Holliday adds that, in the circumstances, the Respondent would be prepared to allow the Appellant’s application “following a satisfactory assessment of your ability to provide an acceptable standard of clinical care by the National Clinical Assessment Authority.” The Appellant then replied by letter dated 12th January 2005 (R53), in which he stated that Mr Holliday’s letter was incorrect “in that I have never been refused admission to the Medical Performers List of the Newcastle-under-Lyme PCT” and he enclosed a letter from the Chief Executive of the Newcastle-under-Lyme PCT (R55), in which the Chief Executive confirmed that “no application for admission to the Medical Performers List of the Primary Care Trust has been received or dismissed.” However, the Appellant had, of course, applied to join the Supplementary Medical List, which had been treated as an application to join the PL.
Further correspondence in connection with the Appellant’s application for inclusion in the PL was thereafter exchanged between the Appellant, the Respondent, Mills and Reeves (solicitors instructed by the Respondent), The Medical Protection Society (on behalf of the Appellant) (27 to 47) and the Appellant’s application was finally dealt with by the Respondent at a meeting of its Reference Committee on 1st November 2005, on which date it was refused. The minutes of that meeting are at R23 to R25 and the Respondent’s reasons for refusal are set out in their letter to the Appellant dated 14th November 2005 (51). According to this letter, the Respondent refused the Appellant’s application “on the grounds of suitability and efficiency pursuant to regulation 6”of the Regulations and “more specifically” on three grounds, namely:
Under the NHS (Performers List) Regulations 2004 Regulation 6(2)(a) the Committee were not satisfied that you intend to perform services, which those included in the relevant performers list perform, within Staffordshire Moorlands.”
So far as this ground is concerned, the Panel notes that Regulation 6(2)(a) of the Regulations provides that a PCT “must” refuse to include a performer in its PL if “he has not provided satisfactory evidence that he intends to perform the services, which those included in the relevant performers list perform, in its area;”
The Panel notes that, in respect of this ground, the Respondent does not refer to any specific Regulation. However, it was clear to the Panel at the hearing from the way in which the Respondent’s case was presented that this ground was intended to be a refusal under Regulation 6(1)(e). In that respect, Regulation 6(1)(e) provides that a PCT “may” refuse to include a performer in its PL if “there are any grounds for considering that admitting him to its performers list would be prejudicial to the efficiency of the services, which those included in that list perform.”
The Respondent’s contentions
(a) that the fundamental aspect of this case is that, in his application form to be included in the PL, the Appellant gave an undertaking “to co-operate with an assessment by the NCAA when requested to do so by the Primary care Trust;” that this undertaking applies from the moment it is given and, thus, the Respondent is entitled to enforce the undertaking prior to the Appellant’s inclusion on its PL; that the Appellant has refused the Respondent’s request and is, therefore, in breach of his undertaking; that the Appellant’s statement in evidence that he is not willing to undergo an assessment at the present time because he believes the request is unreasonable in the absence of evidence of clinical incompetence is an attempt by him to put a qualification on the unqualified wording of the undertaking itself; that the appeal should be dismissed in view of the Appellant’s refusal as, to do otherwise, would be to allow the Appellant to gain advantage from his own breach; or, alternatively, that the Appellant should now agree to co-operate and that the appeal should be adjourned to await the outcome of the assessment; and that, if the appeal is allowed and the Appellant is included in the PL, the Respondent will consider invoking the undertaking immediately;
(b) that the Respondent accepts that there was delay in its consideration of the Appellant’s application but that this delay is not relevant to the issues before the Panel;
(c) that, although the Respondent concedes that the suitability of the referees is not now a major part of its case, its concern about them is nevertheless understandable;
(d) that, in view of the manner in which the Appellant has completed page 13 (R39) of his written application, he has not provided satisfactory evidence that he intends to work as a locum in the Respondent’s area; and that the real purpose behind his application is to enable him to undertake work for the Benefits Agency;
(e) that the Respondent is justified in its concerns about the Appellant’s competence and efficiency as a GP; that the evidence of Dr Chesworth clearly supports those concerns; that the Appellant did not complete his Action Plan (A29 and A30), despite his written and oral evidence to the contrary; that the Appellant’s appraisal (A38A to A40A) is insufficient to remove the concerns; that the Appellant has not worked in general practice in this country for almost two and a half years; that the locum work recently undertaken by him in Australia does not appear to have been assessed; and that the Appellant’s refusal to undergo an NCAA assessment is suspicious; and
(f) that, in all the circumstances, the Appellant’s appeal should be dismissed.
The Appellant’s contentions
(a) that the Respondent’s request for an NCAA assessment was only made because of the Respondent’s mistaken belief that the Appellant had not been appraised; that the request is not a reasonable request in the absence of incompetence; that, in any event, the undertaking to co-operate with an NCAA assessment only applies once a performer has been included in a PL;
(b) that there was inordinate delay and procedural irregularities on the part of the Respondent in its consideration of the Appellant’s application;
(c) that the references provided by Dr Peter John Franklin and Dr Andrew M Saywood are satisfactory references; that, if the Respondent was not in fact satisfied with them at the outset, it should have requested further references from the Appellant in accordance with Regulation 4(7) of the Regulations; that Dr Peter John Franklin has now provided a second reference (A24) and has given evidence before the Panel; that additional references have now been obtained from Dr G Santoro (R142) and Nicholas Richardson (R159); and that the Panel should now be satisfied that the Appellant’s references are satisfactory;
(d) that the Appellant has provided satisfactory evidence about his intention to work in the area; that the wording on the application form (A39) creates the impression that the information requested is simply optional; that, if the Respondent was not satisfied with the Appellant’s answers, it ought to have asked him for further details pursuant to Regulation 4(7) of the Regulations; and that the Appellant has now given evidence before the Panel that he intends to practice in the area;
(e) that there are no or insufficient grounds for concern about the Appellant’s competency; that Dr Chesworth in his evidence before the Panel stated that there had never been performance issues relating to the Appellant’s clinical competence; that the Appellant had completed most of his Action Plan (A29 and A30); that there are many positive comments by Dr Irvine in the Appraisal (A38A to A40A) and no mention therein of a failure to comply with the Action Plan; that particular regard should be given to the outcome of the proceedings before the GMC in 2002 and 2003, which should provide reassurance that there are no public safety or performance issues; and
(f) that, in all the circumstances, the Appellant’s appeal should be allowed on all three grounds.
Our findings of fact
In the opinion of the Panel, the burden of proving that the references are not satisfactory (Regulation 6(1)(b)) and that there are grounds for considering that admitting the Appellant to its PL would be prejudicial to the efficiency of the services, which those included in the PL perform (Regulation 6(1)(e)) lies on the Respondent. On the other hand, the Panel is of the opinion that the burden of proving that he has provided satisfactory evidence that he intends to perform locum services in the Repondent’s area falls on the Appellant. Furthermore, when considering in this case whether the allegations have been established, the Panel bears in mind that we must be satisfied that the necessary facts are proved on the balance of probabilities. After so directing ourselves, we are satisfied that:
(a) the Appellant’s undertaking in his written application “to co-operate with an assessment by the NCAA when requested to do so by the Primary Care Trust” only applies once he is included in the PL.
In this respect, Regulation 4(3)(a) to (e) lists the undertakings which a performer (defined as a health care professional in Regulation 2) must provide in his written application. The one relevant to this appeal is at 4(3)(d), which reads “undertaking to co-operate with an assessment by the NCAA, when requested to do so by the Primary Care Trust.” There is, therefore, nothing in the wording of 4(3)(d) itself, which makes it clear whether this undertaking applies from the date it is given or only once a performer is included in the PL. In contrast, the wording of one of the undertakings (ie 4(3)(b)) makes it clear that it applies both before and after the performer is included in the PL and the wording of another (ie 4(3)(a) and 9) makes it clear that it only applies after inclusion. However, 4(3)(d) is silent. Moreover, the undertaking in 4(3)(e) is also silent and is similar to the wording of 4(3)(d) but it would seem strange for a PCT to require a performer to participate in its appraisal system before he is included in the PL. Indeed, at the hearing, Mr Holliday confirmed that he understood Regulation 4(3)(e) to mean that participation in the appraisal system only applied after inclusion in the PL.
In addition, we note that Regulation 9, which is headed “Requirements with which a performer in a performers list must comply,” provides in Regulation 9(5), 9(6) and 9(7) as follows:
“(5) Subject to paragraph (6), a performer, who is included in a performers list of a Primary Care Trust, shall comply with any undertaking he gave on admission to that list or to any previous list from which he has been transferred pursuant to Schedule1.
(6) A performer, who is included in a relevant performers list of a Primary Care Trust, shall act in accordance with the undertakings that a performer is required by these Regulations to provide when applying for inclusion in the relevant performers list.
(7) A performer, who is included in a performers list of a Primary Care Trust, shall, except where the relevant part provides to the contrary –
(a) participate in the appraisal system provided by a Primary Care Trust; and
(b) if the appraisal is not conducted by the Trust in whose list he is included, send that Trust a copy of the statement summarising that appraisal.”
In our opinion, therefore, Regulation 9(5), (6) and (7) appears to make it clear that the Appellant’s undertaking given in Regulation 4(3)(d) is only enforceable by the Respondent once the Appellant is included in the PL.
In their evidence, both Dr Chesworth and Mr Holliday confirmed that the Respondent had not previously been invoved in referrals to the NCAA and, in view of its expressed importance to the Respondent, the Panel find it surprising that the minutes of the Respondent’s meeting on 1st November 2005 (R23 to R25) do not contain any reference to an NCAA assessment.
Furthermore, the Respondent did not adduce any conclusive evidence that the NCAA would agree to carry out an assessment before the Respondent’s inclusion in the PL or, indeed, at all. In this respect, neither Dr Chesworth nor Mr Holliday had made personal contact with the NCAA by the time they gave their evidence and the late exchange of correspondence between the Respondent and the NCAA (R146 to R156) does not contain any such assurance.
The NCAA’s Handbook was produced in evidence on behalf of the Appellant but the Respondent does not contend that it contains anything to confirm that assessments will be undertaken before a performer is included in a PL. Furthermore, the Handbook makes it clear that assessments are only appropriate in cases which are “most complex” (page 4) and where “the concerns are significant, repetitious and have not proven amenable to local resolution” (page 11).
In these circumstances and on the evidence before us, we find that the Appellant’s undertaking only applies once he is admitted to the PL, that the Respondent is unable to compel or expect compliance before then and that the Appellant is not, therefore, in breach of his undertaking at this stage.
(b) there was unreasonable delay and procedural irregularity on the part of the Respondent in its consideration of the Appellant’s application but, although this is of concern to the Panel, they are not factors which go to the merits of the issues which the Panel has to decide, save as mentioned below.
TheAppellant’s application is dated 19th October 2004 and the Repondent’s decision was made on 1st November 2005, over 12 months later. This is simply far too long and it is clear to the Panel from the timing of the subsequent correspondence in respect of the application that the reponsibilty for this lies firmly with the Respondent. The application was simply allowed to remain dormant on several occasions for no justifiable reason. According to the Respondent, this was the first application for inclusion in its PL, which it had to consider. We would strongly recommend to the Respondent that it reviews its procedures, in the event of there being others.
The Respondent’s delay concerns us greatly and appears to be inexplicable. However, this is not a ground on which the Panel is entitled to allow the Appellant’s appeal. Despite the delay, the Panel must consider the issues in the case and the Respondent’s delay does not significantly affect them. We would say, however, that it is inappropriate for the Respondent to contend that the Appellant has now been out of full time general practice for too long (two and a half years), when the Respondent’s own delay in considering his application has contributed to that.
So far as procedural irregularity is concerned, the Appellant contends that the Respondent ought to have asked the Appellant for further references and information pursuant to Regulation 4(7) before reaching a decision on (i) the suitability of his referees and (ii) whether he intended to work as a locum in its area. The Respondent contends that it did not do so because Regulation 4(7) only requires it to do so if the information and references “are not sufficient” for it to make a decision on the application and, in the Respondent’s opinion, the information initially before it was sufficient. We do not accept that the information provided on page R39 of the application form was sufficient for decision making purposes and we are of the opinion that the Respondent ought to have requested further information at that stage, particularly in view of the misleading wording actually used on R39, about which we make further comment below.
The Appellant also contends that the Respondent failed to comply with Regulation 6(6) of the Regulations, which provides that the Respondent “shall” notify the Appellant of its decision whether or not to include him in its PL “within 7 days of that decision.” The decision was made on 1st November 2005 and the letter sent to the Appellant informing him of the decision is dated 14th November 2005 (51), which is clearly outside of the mandatory time limit. The Respondent was, therefore, clearly in breach of its obligation under this Regulation.
Furthermore, we note that the Respondent’s solicitors sent a copy of this letter to The Medical Protection Society on 18th November 2005 but that that copy is dated 8th November 2005 (48 and 49). In his grounds of appeal (paragraph 11 on A4 and A5), the Appellant suggests that this “raises the clear suggestion that the PCT was aware of the strict requirement under Regulation 6(6) and sought to suggest that it had complied with that regulation, when it had not done so.” The Respondent offered no explanation about this at the hearing and the Appellant did not pursue the matter. However, the Panel hopes that there is an innocent explanation for the date on this letter (49) and that, if not, the Respondent will carry out a full investigation.
(c) the Panel is satisfied with the references now provided by the Appellant.
Regulation 4(1)(f) of the Regulations provides that an application to be included in the PL shall include
“names and addresses of two referees, who are willing to provide clinical references relating to two recent posts (which may include any current post) as a performer which lasted at least three months without a significant break, and, where this is not possible, a full explanation and the names and addresses of alternative referees;”
The Appellant named Dr Andrew M Saywood and his brother and witness, Dr Peter John Franklin (R33). The Respondent took up these references, which are at R47 and R48 (Dr Saywood) and R50 and R51 ( Dr Franklin).
At the hearing, Mr Holliday accepted that it was difficult for a single handed practitioner to provide references. Dr Chesworth and Mr Holliday also explained that, although both references recommended the Appellant “strongly without reservation” and that Dr Chesworth knew that the Appellant’s brother was a well respected local GP, their concerns were that (i) Dr Saywood had only worked with the Appellant on 3 to 4 occasions in 1998 to 2000, was no longer a practising GP and his reference was not particularly strong or reliable and (ii) Dr Franklin last worked with the Appellant in 2000, his reference was brief, did not contain any general comments and, being a family member, he was not independent. Despite these concerns, however, both witnesses agreed that they had never raised their concerns with the Appellant pursuant to Regulation 4(7), despite the fact that letters had been sent to him in respect of his application. The Panel is of the opinion that the Respondent ought to have done so.
In any event, the Panel have now had the benefit of seeing further references, which were not before the Respondent at the time it made its decision. In that respect, the Panel have seen the more detailed reference from Dr Peter John Franklin (A24), the reference from Dr George Santoro (R142) and the reference from Nicholas Richardson (R159). This last reference in particular relates to a recent period of 3 months from October to December 2005, when the Appellant worked as a locum in Australia, working between 36 and 48 hours per week. The Panel is of the opinion that this is a good and detailed reference, which records that the Appellant worked effectively and without complaints. Furthermore, it also records that the Australian Locum Service have recently “welcomed him back” to continue this work.
In addition, the Panel have also heard oral evidence from Dr Peter John Franklin, who is clearly a highly qualified and well respected GP. Dr Franklin was of the opinion that he was able to take an independent view of his brother and stated that he would have no hesitation in having him as a locum in his practice, if he himself now had to take leave of absence.
In these circumstances, the Panel is now satisfied with the references provided by the Appellant.
(d) the Appellant has provided satisfactory evidence that he intends to perform the services of a locum in the Respondent’s area.
The Panel accepts the Appellant’s oral evidence to the Panel that, if his appeal is allowed, he intends to work in the Respondent’s area as a locum. The Panel also accepts the Appellant’s explanation for the way in which he completed page 13 of the Respondent’s application form (R39).
The ground set out in Regulation 6(2)(a) is a ground on which the Respondent “must” refuse the Appellant’s application but the application form itself does not make clear the importance of an applicant providing evidence that he intends to work in the area. Indeed, that part of the form on which the Respondent relies (R39) does not even make it clear that the information requested is obligatory. In that respect, it simply states “It would be helpful if you would provide the following information.” In any event, where the Appellant is asked to indicate “Geographical Availability,” he has indicated Stoke on Trent North and Staffordshire Moorlands. Furthermore, the Respondent does not appear to have even considered the Appellant’s reply in paragraph numbered 3 on page 4 (R29) ie that he proposes to provide locum services for patients in the Respondent’s area or the fact that, in paragraph numbered 17 on the form (R33), he states that his proposed place of residence is within the Respondent’s area. Moreover, as the Appellant was only a “Locum Applicant,” the form itself makes it clear that he should not complete paragraph 15 on page 8, which requires precise details of an applicant’s proposed practice area, including a street map (R33).
In his evidence to the Panel, Mr Holliday stated that the information provided by the Appellant (ie R39) did not give the Respondent confirmation of the Appellant’s intention to work in the Respondent’s area and that, if this issue had been the only outstanding issue, it would have requested further information from him pursuant to Regulation 4(7). In these circumstances, the Respondent should not have relied on this as a ground of refusal before doing so.
Dr Chesworth in his evidence confirmed that he himself did not have any reasons to suppose that the Appellant did not intend working in the area and Mr Holliday confirmed that, if the Appellant now stated that he was prepared to work in the area, he would now accept that as evidence of his intention to do so.
Finally, the Panel does not accept the Respondent’s contention that the real purpose behind the Appellant’s application to be included in the PL is to enable him to conduct work for the Benefits Agency. It did emerge in cross examination that the Appellant had been prevented from carrying out Benefits Agency work because he was not in a PL but the Panel is not prepared to conclude that this in itself indicates that the Appellant does not intend to carry out locum work.
(e) there are insufficient grounds for considering that admitting the Appellant to the Respondent’s PL would be prejudicial to the efficiency of the services, which those included in the PL perform.
The Panel accepts that Dr Chesworth’s visit to the Appellant’s practice in May 2000 identified areas of practice under performance (A27 to A29). In his evidence, however, Dr Chesworth confirmed that the visit had not been triggered by an adverse clinical incident or complaint and that none of the issues raised were issues about the Appellant’s clinical competence as a GP but were concerns about the achievement of specific targets, the existence of processes within the practice and a database. Indeed, Dr Chesworth was not aware of any issues at all or any adverse incidents relating to the Appellant’s clinical competence. Dr Chesworth also confirmed that his concerns in May 2000 were not serious enough to merit the Appellant’s suspension or a referral to the GMC, nor had he himself followed up his concerns or the Action Plan at any stage.
As a result of that visit, an Action Plan was produced (A29 to A30). However, despite the Appellant’s contentions to the contrary, the Panel is satisfied that the Appellant paid little regard to it. In that respect, it is agreed that the Appellant produced the baseline audit (Action Plan 1). However, the Chronic Disease Management Protocol (Action Plan 2) was clearly prepared and produced by Dr Irvine and, although the Appellant in his written statement (A19 paragraph 14(2)) denies that this was the case, in his oral evidence (cross examination), he accepted that it had in fact been produced and that he may well have received Dr Irvine’s letter enclosing it (R134). Likewise, with regard to the sitting in sessions (Action Plan 3), the Appellant maintains in his written statement (A19 paragraph 14(3)) that Dr Irvine had not identified a practice. However, in cross examination, the Appellant accepted that a practice had been identified but he only accepted this after the letter at R134 had been produced to him. Again , the arrangement of Practice Nurse Support (Action Plan 5) did not take place and the Appellant’s written statement (A19 paragraph 14(5)) is incorrect, which the Appellant conceded, having had produced to him the e-mail (R136). The Panel is satisfied, therefore, that Dr Chesworth’s doubts as to whether the Action Plan had been followed through are justified and the Panel found the Appellant’s evidence to be unsatisfactory in this regard.
However, neither Dr Chesworth, Dr Irvine nor Dr Shah, all of whom were present at the visit to the Appellant’s practice in May 2000 (A27 to A30), deemed it necessary to follow up their concerns at any time, albeit that the Appellant continued in practice from then until December 2003. Moreover, when Dr Irvine conducted her appraisal of the Appellant in September 2003 (A38A to A42A), she makes no reference to her visit in May 2000 nor does she refer to the Action Plan. The absence of any follow up leads the Panel to conclude that the areas of under performance in May 2000 were not considered to be too serious.
Despite the Appellant’s inactivity with regard to the Action Plan, the Appellant’s response in 2002 and 2003 to his suspension by the GMC and the conditions attached is positive and reassuring (R86 to R88).
Furthermore, the Panel concludes that Dr Irvine’s appraisal of the Appellant in September 2003 (A38A to A40A) also reveals improvements by the Appellant and has reassuring aspects to it. Dr Irvine, whilst expressing the view that the appraisal process does not judge or measure performance or distinguish between good and bad practitioners, accepts that, to some extent, a reader might make deductions (R89). The Panel notes, for example, that the appraisal reveals that the Appellant was then using the computer for diabetic, hypertension, heart disease and asthma data collection and had provided evidence of work towards completion of key data fields, albeit that a fuller use was recommended; that the Appellant had good awareness of prescribing practice, which was now computerised; no patient complaints; 20 very complimentary letters of recommendation from patients; and, although no Practice Nurse, the Appellant had achieved 77.5% smear uptake. Indeed, in his evidence, Dr Chesworth, who holds Dr Irvine in high regard as an appraiser, accepted that the appraisal did not appear to reveal any serious problem. Furthermore, he accepted that aspects of it were reassuring. In his words, “the appraisal does show improvement and development but the question is whether it shows enough improvement and development.”
With regard to the Appellant’s clinical competency, the Panel also bears in mind the evidence of his brother, Dr P J Franklin, to the effect that, when he took over about 400 of the Appellant’s patients, when the Appellant resigned from practice in December 2003, the patients had been happy with the Appellant’s care, the medical records had been appropriately managed and he did not have any concerns about the Appellant’s chronic didease management.
Finally, at the hearing itself (although it had not been mentioned in the documentation), Mr Holliday stated that one factor which concerned the Respondent was that the Appellant had now been out of general practice for too long. By its delay in dealing with his application, the Respondent itself contributed to that period of two and a half years. However, the Panel notes that, during that time, the Appellant has conducted some Benefits Agency work and that, as recently as October to December 2005, he carried out work as a locum in Australia (R159). Furthermore, the Panel also notes the educational courses attended by the Appellant since December 2003 (R143) and the written evidence from Dr Kulkarni (R145).
Consequently,on the evidence before us, the Panel finds that there are insufficient grounds for considering that admitting the Appellant to the PL would be prejudicial to the efficiency of the services, which those included in the PL perform.
For the reasons given above
(i) we allow the Appellant’s appeal; and
(ii) we order that his name be included in the Respondent’s Performers List as a locum.
One of the undertakings given by the Appellant in his application form is that he will participate in the appraisal system provided by the Respondent. Now that the Respondent is included in the Respondent’s PL, the Panel assumes that an appraiser will be appointed for an appraisal to take place at some time in the future. We do not know the Respondent’s time scale in this respect but we would recommend that an appraisal takes place within 3 months of the date of this Decision. Such an appraisal will no doubt produce a Personal Development Plan for the Appellant, which can then address any concerns which the appraiser has.
Finally, in accordance with Rule 42(5) of The Family Health Services Appeal Authority (Procedure) Rules 2001, we hereby notify the parties that a party to these proceedings can appeal this Decision under Section 11 of The Tribunals and Inquiries Act 1992 by lodging notice of appeal in The Royal Courts of Justice, The Strand, London WC2A 2LL within 21 days from the recipt of this Decision.
Dated this 14th day of June 2006.
C Barker - Chairman