IN THE FAMILY HEALTH SERVICES APPEALS AUTHORITY

Case No:12198

MS M LEWIS - CHAIRMAN

DR P WRAY - PROFESSIONAL MEMBER

MS L THURLOW - MEMBER

Between

ROWLEY REGIS & TIPTON PCT

Applicant

AND

Mr S KHADUN

Application Respondent

DECISION WITH REASONS

1. On 5 December 2005 the PCT removed Mr Khadun from their list of Primary Dental Performers. This was a mandatory removal under what is now Regulation 10 (i) (b) of the NHS Performers List Regulations following his conviction on 26 counts of false accounting at Wolverhampton Crown Court on 2 December 2005 and his sentence to 15 months imprisonment. At the time the obligation to remove a dental practitioner from a PCT's list following his conviction of an offence rendering him liable to imprisonment for over 6 months was contained in Regulation 10 (i) (b) of the NHS (General Dental Services Supplementary List) and (General Dental Services) Amendment Regulations 2003. Subsequently the PCT wrote to the FHSAA requesting the National Disqualification of the Respondent as the Respondent was going to be unsuitable for inclusion in any Dental Performers List.

Background

2. The circumstances of the Respondent's convictions were as follows. On 15 of the 26 counts of which he was convicted at trial, the prosecution proved that the Respondent had submitted FP17 claim forms to the Dental Practice Board in respect of fictitious patients. In respect of a further 11 counts resulting in conviction, the prosecution proved that the Respondent had submitted FP17 claim forms with additional treatment added on to them which had not been carried out.

3. The hearing of the application was originally scheduled for 16 March 2006. It was adjourned at the request of Mr Khadun's then solicitors, who by letter dated 10 February 2006 requested that the matter be adjourned until his release from prison on 24 March 2006. The Panel agreed to that application in order to give Mr Khadun the fullest opportunity to take legal advice and make any representations that he wished to. The FHSAA has heard nothing further from Mr Khadun so approached his solicitors who advised that they were no longer acting for him and no address that they were willing to disclose. The FHSAA therefore sent the Notice of Hearing to Mr. Khadun’s address listed on the GDC website, having never had a current address on file. The Panel unanimously concluded that there had been service of the Notice of Hearing and that Mr Khadun had had every opportunity to participate and present his case during these proceedings. Mr. Khadun has filed no documents.

4. Ms J Jones of Counsel represented the PCT and called Ms Cullotty of Sandwell PCT who investigated the matter, and Nicholas Aronin of NHS Counter-Fraud Services as witnesses. Both adopted their statements, which we read together with the other documents in the Applicant’s bundle.

Conclusions

5. The Department of Health's guidance (published 9 August 2004) contains 2 relevant propositions: “where the facts of the case are serious it would be wrong to allow the (doctor) to offer his services to every PCT in turn in the hope that he will find one willing to accept him.” Further, “unless the grounds of their decision were essentially local it would be normal to give serious consideration … to an application for National Disqualification.”

6. In determining the application made by the PCT herein, we found that the Grounds of Application are well made out. The PCT were bound to remove Mr Khadun from their Dental Performers List and, in the light of the Department of Health’s guidance as noted above, quite properly and we find quite rightly, made an application for National Disqualification. The PCT’s action we find was entirely proper and proportionate. We would go so far as to say it was inevitable in the light of the conviction as the nature of the fraud related directly to the provision of dental services. We find applying any standard of proof that Mr Khadun is unsuitable as a result of his conviction to be included in any Performers List.

7. The Panel unanimously agrees that it would be right to exercise its powers under Regulation 19 (a) of the Regulations and direct that there should be no application for review of the National Order for Disqualification within 5 years, as we accept that such review, given the seriousness of the conviction, would have no realistic prospect of success if made within 2 years.

8. Decision

Our order is that pursuant to Section 49N of the National Health Services Act as amended by the Health and Social Care Act 2001, the Respondent Mr Khadun be disqualified from inclusion in all Performers Lists prepared by all Primary Care Trusts, all lists deemed to succeed or replace such lists by virtue of Regulations made thereunder.

We direct pursuant to Regulation 19 (a) of the NHS Performers List Regulations 2004 that there should be no application to review the National Order for Disqualification within 5 years.

9. Finally, in accordance with Rule 42 (5) of the Rules we hereby notify that a party to these proceedings can appeal this decision under Sec 11 Tribunals & Inquiries Act 1992 by lodging notice of appeal in the Royal Courts of Justice, The Strand, London WC2A 2LL within 28 days from receipt of this decision

Ms M E Lewis

Chair

8 June 2006