IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY
Case No: 12333/12334
MR. ROBIN CHAUDHURI – Chairman
DR. D.S. KOONER – Professional Member
DR. D.J. RATZER – Lay Member
(GDC Registration No. 81312)
MEDWAY TEACHING PRIMARY CARE TRUST
AND MAIDSTONE WEALD PRIMARY CARE TRUST
DECISION WITH REASONS
Dated this 2nd day of June 2006
1. This is an appeal by Ms. Cashman against the decision of:
(i) the Medway Teaching Primary Care Trust (hereinafter referred to as “Medway PCT”); and
(ii) the Maidstone Weald Primary Care Trust (hereinafter referred to as “Maidstone PCT”)
to refuse her application to join the PCT’s Dental List.
Ms. Cashman is 26 years of age.
On 16th October 2005 she applied to join Medway PCT’s Dental List.
On 17th October 2005 Ms. Cashman commenced working at the Longford Road Dental Practice, despite the fact that her application to join the PCT’s List had not yet been processed.
On 14th November 2005 she applied to join Maidstone PCTs’ Dental List. Since she had referred to two practises on the single form, Ms. Cashman was asked to submit a further application form. That application form was completed on 23rd November 2005 and received by the PCT on 28th November 2005, together with some completed pages relating to her first and second application forms.
3. On 5th December 2005 the NHS Local Counter Fraud Specialist Investigation Team and Kent Police discovered that Ms. Cashman was being employed as a dentist without having been included on the relevant PCT Dental List. It would be fair to say that this discovery was made as a result of wider investigations taking place which related to the Longford Dental Centre and its Principal, a Mr. E.C. Maccormaic.
4. On 6th December 2005 Ms. Cashman was advised by Kent Primary Care Agency to cease working immediately. Ms. Cashman did so.
5. On 6th January 2006 Ms. Cashman was interviewed by Mark Weller from the NHS LCFS Investigation Team. Ms. Cashman voluntarily attended the interview and appeared to be frank with Mr. Weller. A report was prepared by Mr. Weller, which the Panel have had the opportunity to consider.
6. (i) On 18th January 2006 Medway Decision Making Group
(“DMG”) convened and decided that Ms. Cashman’s application to join their Dental List should be refused;
(ii) On 31st January 2006 Medway PCT confirmed in writing to Ms. Cashman that her application was refused on the grounds of “unsuitability” and “efficiency”;
(iii) On 20th January 2006 Maidstone PCT’s DMG convened and decided to refuse Ms. Cashman’s application to join the Dental List;
(iv) On 6th February 2006 Maidstone PCT confirmed to Ms. Cashman in writing that her application was refused on the grounds of “unsuitability” and “efficiency”;
(v) On 24th February 2006 Ms. Cashman sought to appeal the respective decisions of the PCT.
7. (i) On 12th April 2006 the FHSAA received a response to the
appeal from both Medway and Maidstone PCT.
(ii) On 19th May 2006 the solicitor acting for the two PCTs informed the FHSAA that they were withdrawing their replies to Ms. Cashman’s appeal, pursuant to Rule 38(2)(b) of The Family Health Services Appeal Authority (Procedures ) Rules 2001 (hereinafter referred to as the “Procedure Rules”. The PCT had decided to take this course of action because Ms. Cashman’s application to join the Dental List of another PCT had been successful.
8. THE HEARING ON 30th MAY 2006
The Panel convened on 30th May 2006 and heard from Mr. Davidson (Counsel for Ms. Cashman), Ms. Cashman and briefly from Ms. Condry (Solicitor for the PCT).
Mr. Davidson submitted the following:
(i) This was a genuine mistake on the part of Ms. Cashman;
(ii) There was no intent to deceive;
(iii) She fully accepted that she should not have commenced employment until her application had been approved. However, Ms. Cashman assumed that she was permitted to work under the Principal’s dentist’s contract number until her own was issued;
(iv) Even Ms. Cashman’s Recruitment Agency had assumed that the above practice was permissible.
Ms. Cashman explained that she had recently been accepted to join the Barking and Dagenham Dental List and had supplied them with full details of the matters before the Panel.
Ms. Condry was given the opportunity to ask any questions but declined to do so.
9. THE DECISION
It is the unanimous decision of the Panel that Ms. Cashman’s appeal should be allowed.
The grounds on which the PCT refused to include Ms. Cashman in its Dental List were those of “unsuitability” and “efficiency”. (See Regulation 6(1) (b) and (e) of The NHS (General Dental Services Supplementary List) and (General Dental Services) Amendment Regulations 2003) hereinafter referred to as the “2003 Regulations”.
Under Regulation 6(4) the PCT were required to “consider all facts which appear to it to be relevant” and further to take into particular consideration the various factors as set out in Regulation 6(4) (a) to (g) inclusive. These factors were considered by the Panel.
The Panel accept that there was no intent to deceive on Ms. Cashman’s part and further accepted the submissions made by Mr. Davidson. She clearly ought to have appraised herself of the rules and procedures for her application onto the Dental List and, to that extent, her actions were naďve. However, having considered all the relevant facts and the documents presented to us, the Panel conclude that her actions did not justify a finding of “unsuitability”. The Panel also note that Ms. Cashman’s clinical competence has not been questioned. Neither do the Panel believe that admitting Ms. Cashman onto a Dental List would be prejudicial to the efficiency of the service she would undertake.
Under Regulation 15(1) of the 2003 Regulations the Appeal is by way of re-determination. It is the unanimous decision of the Panel that Ms. Cashman should be permitted (if she so wishes) to be admitted to the Dental List of the Medway PCT and the Maidstone PCT.
11. Finally, in accordance with Rule 42(5) of the Procedures Rules, we hereby notify that a party to these proceedings can appeal this decision under Section 11 Tribunals and Inquiries Act 1992 by lodging a Notice of Appeal in the Royal Courts of Justice, the Strand, London WC2A 2LL within 21 days from the date of this Decision.
2nd June 2006