CASE NO. 11393
IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY
Mr. D Pratt - Chair
Mrs. M A Harley - Member
(GDC number 55478)
EASTERN CHESHIRE PRIMARY CARE TRUST
1. This is an appeal by a dentist, Mr Malcolm Neil MacLeod (“Mr MacLeod”), against a decision of Eastern Cheshire Primary Care Trust (“the PCT”) to refuse to admit him to the Dental List under Regulation 5 of the National Health Service (General Dental Services) Regulations 1992 (“the Regulations”).
2. The panel heard this appeal at the FHSAA offices at Harrogate on 25 November 2004. The Appellant was represented by Mr C Briggs, solicitor, of Ryan solicitors, and the PCT by Ms V Greene, solicitor of Hill Dickinson. We heard evidence from Mr MacLeod on his own behalf and from Mr John Rose, Dental Advisor to the PCT. In addition the parties had submitted an appeal bundle of documents which, together with supplementary bundles (in the case of documents concerned with education and training courses produced pursuant to directions) were paginated 1-127. Page references in this decision are to the pagination in the hearing bundle and supplementary documents supplied.
3. The decision which is the subject of this appeal was contained in a letter from the PCT dated 27 July 2004 which said:
“[The PCT] have decided that in view of your disciplinary record that you should be included in the Supplementary Dental List, which will allow you to work as an Assistant with a review of your application in 6 months time by using an up-to-date clinical reference from your new principal practitioner.”
4. At the outset of the hearing the panel raised two preliminary questions by way of clarification:
a. Whether the PCT’s letter was to be treated as a refusal to admit Mr MacLeod to the Dental List;
b. If so, what was the ground for refusal relied upon by the PCT under Regulation 5ZA of the 1992 Regulations?
5. As to the first question, the parties agreed that they had both treated the decision to refuse to admit Mr MacLeod to the Dental List. The panel agrees with that view of the PCT’s letter. As to the second question, the PCT informed us that it relied upon Regulation 5ZA (1) (a), namely:
“that they have considered the declaration required by paragraph 5B of Schedule 2 and any other information in their possession in relation to his application and consider he is unsuitable to be included in the list”. [emphasis added]
Mr Briggs observed that his client had had to wait until this hearing to know that, and was disadvantaged by the want of reasons given, but made no application arising out of that contention.
6. The panel finds the history of the matter set out in the section below to be proved as fact.
7. Mr MacLeod applied to the PCT for inclusion on its Dental List on 26 April 2004. He had been a Principal on Dental Lists, with contract numbers, in Salford for some 23 years and in Stockport for some 20 years. At the date of his application he was practising in a partnership known as “Hamilton and MacLeod Dental Practice” in Salford.
8. Mr MacLeod’s application form [pp 76 – 80] showed that he intended to practise as an associate at a practice known as “Cheshire Dental Surgery”, King Edward Street, Macclesfield, where the Principal was a Mr N Izadkhah, and there was one other associate dentist. One of his two referees was Mr Hamilton, his former partner in the practice at Salford. Mr MacLeod signed a declaration at the end of the application, comprising a number of questions, to all of which he answered “No”. These included:
“Have you ever been the subject of an investigation by any licensing, regulatory or other body into your professional conduct or performance anywhere in the world, or by any current of former employer into your professional conduct or performance anywhere in the world … where the finding was adverse?”
9. Mr MacLeod’s answer “No” to this question was in fact untrue. He had an adverse finding against him by Preston Primary Care Trust (Dental Discipline Committee) on a referral by Greater Manchester Health Authority. It reported on 10 March 2003, just over a year before this application. It found Mr Macleod had
“seriously breached … his terms of service by failing to employ a proper degree of skill and attention when examining Miss H in March 2000 and by failing to provide care and treatment which they considered was necessary to secure and maintain the oral health of the patient” [ p 64].
He was warned to comply more closely with his Terms of Service in the future and a sum of £1,000 was directed to be withheld from his remuneration.
10. The Dental Discipline Committee findings followed adverse findings of an Independent Review Panel (“IRP”) established by Salford and Trafford Health Authority, arising out of an extensive course of treatment to the same patient, whom he had treated between 1990 and 2000. The IRP had reported on 13 June 2001 including in the following terms [p 28]:
“1. Mr Macleod’s clinical records fail to back up his evidence.
2. Miss H may not have allowed Mr Macleod to do the work he wished or recommended, however, what he did do caused unease to the Clinical Assessors.
3. X-rays were regularly of no diagnostic value. These poor X-rays may account for the poor standard of root fillings. Two root perforations in the same patient indicates room for improvement in the techniques Mr Macleod uses for post preparation.”
11. The IRP expressly concurred also with the report of the Clinical Assessors, which commented upon some 22 items in the dental condition of this patient. Particular concerns were expressed about five teeth where root canal fillings had failed to reach near enough to the end of the root, that x-rays regularly failed to demonstrate the end of the root and were of no diagnostic value, about the loss of crowns on the back teeth and about two root perforations during post preparations. The assessors commented that correct techniques make such perforations a rare event. Concern was expressed about the extent of untreated decay subsequently found in the patient’s back teeth. This topic occasioned comment and evidence from Mr Macleod in the various hearings which considered this patient’s treatment, on the broad basis that decay discovered subsequently did not reliably demonstrate that it was present during his period of care for this patient.
12. Following the adverse findings by Preston PCT Dental Discipline Committee (which we shall refer to as “the DDC”), the Family Health Services Appeal Authority (Special Health Authority) referred the matter to the General Dental Council (“GDC”). Mr Macleod’s solicitors made representations to the GDC by a letter dated 27 October 2003 [pp70 – 74], in which they accepted on his behalf the findings of the Dental Reference Officer, “with particular reference to the radiographic evidence of inadequate root fillings, and the deficiencies referred to”. They pointed out on his behalf that since the Independent Review Panel findings he had attended various courses on endodontic treatment and use of x-rays, and suggested he had thereby addressed the deficiencies identified. It was also argued that it was unfair to extrapolate backwards from the condition of the patient’s mouth found by the DRO, as to the condition of her mouth when treated by Mr Macleod. The body of the letter repeated points previously made by Mr Macleod to the effect that the patient had gross decay when she first presented, had failed to follow advice on eating sweets, and had been a difficult patient.
13. On 9 December 2003 the GDC wrote to Mr Macleod [p 65] to inform him that its Preliminary Proceedings Committee had considered the matter, together with observations submitted by his solicitors:
“The Committee decided that, on this occasion, you shall not be summoned to attend an inquiry held by the Professional Conduct Committee of the Council …
The Preliminary Proceedings Committee was concerned to not, however, that you should in future practise within the limits of your competency. The Committee has therefore instructed me to draw your attention to the Council’s views in relation to the above which is set out in paragraph 3.3 of the Council’s guidance Maintaining Standards.
I have to inform you that, should the Council at any time receive any further criticism of your professional conduct, it would not be precluded from taking into account the matter now before it”.
14. None of the findings or events summarised at paragraphs 9 to 13 above were known to the PCT or to its Dental Advisor Mr John Rose, who was the responsible person who considered the application and advised the PCT. Mr Rose gave evidence to us. As was its normal practice, the PCT wrote for information to the Dental Advisor at Salford PCT (the area where Mr Macleod had been most recently practising), and on 4 May 2004 that officer replied [p 17], informing the PCT that his authority had referred Mr Macleod for discipline and there was an adverse finding and withholding of remuneration. He was unable to provide details of the adverse findings. Mr Rose told us, and we accept, that he had two worries, namely what the case might involve and why it had not been declared.
15. There was then a telephone conversation between Mr Rose and Mr Macleod in early May. There is a dispute between the parties as to what was said, and we shall return to this conversation later. It is not in doubt that Mr Rose did ask for details of the adverse findings mentioned by the Salford PCT Dental Advisor to be provided, but Mr Macleod did not provide them during that conversation. He replied by a letter dated 13 May 2004 [p 19]:
“I had a disciplinary case relating to one patient. Independent Review followed by Preston Primary Care Trust hearing of disciplinary case [there followed a case reference number].
I was found in breach of terms of service and warned to work more closely within my terms of service. No appeal was lodged. The case was referred by them to the General Dental Council Preliminary Proceedings Committee who dismissed the case with no further action to be taken. The case related to one patient in 23 years of service.”
He concluded by giving a mobile telephone number if he could be of more help.
16. While considering this reply the PCT wrote to Mr Macleod on 18 May [p 119] offering to allow him to work as an Assistant if there was urgency to start in his proposed practice.
17. The PCT replied substantively by letter dated 20 May 2004 [p 20] asking for more details; it must be remembered they knew at this stage only the brief information given by the Salford Dental Advisor and by Mr Macleod in the letter quoted above. In particular this letter asked for more information on what the patient complained of, what part of the complaint was held to be justified, and what were the facts surrounding the case of the disciplinary hearing.
18. The response to this letter came from the Dental Defence Union (“DDU”) on behalf of Mr Macleod, on 26 May 2004 [p 21] enclosing the report of the Independent Review Panel (see paragraph 10 above) the report of the Dental Discipline Committee (see paragraph 9 above) a draft of the solicitor’s letter to the GDC (see paragraph 12 above) and the GDC letter (see paragraph 13 above).
19. Mr Rose reviewed the case in the light of the information provided, and the PCT determined the application by its letter dated 27 July 2004, which is the subject of this appeal.
20. We should add that, following a preliminary discussion with the practice principal Mr Izadkhah in July, the PCT wrote to him on 12 August 2004 indicating Mr Macleod had been admitted to the Dental List as his Assistant with effect from 8 August. We were told, and accept, that Mr Izadkhan was asked to provide an updated clinical reference in 6 months’ time, but he was not told what general areas of clinical competence the PCT was anxious about.
21. Mr Macleod’s grounds of appeal are contained in a letter from his solicitors dated 24 August 2004 [pp 1-3]. He asserted firstly a failure by the PCT to give adequate reasons for its decision. Secondly he relied upon a number of factors which it was suggested had been given no or insufficient consideration: the fact that he had only one complaint in 23 years of practice as a Principal, that it led to a withholding of £1,000 and upon review the GDC considered no further action necessary, that he remained a Principal on the Salford PCT Dental List, and that he had undergone considerable retraining. Restriction to the Supplemental Dental List was said to be manifestly unreasonable, unfair and flew in the face of the evidence.
22. The PCT’s Reply (provided in accordance with Paragraph 12 of the Family Health Services Appeal Authority (Procedure) Rules 2001) is dated 20 September 2004 and signed by Mr Ged Timson, Director of Operations [pp 5-7]. He set out the history of the application, pointing in particulars to the findings and concerns of the Dental Discipline Committee and Independent Review Panel, and listed the PCT’s concerns as follows:
a. Mr Macleod’s failure to declare the adverse findings as required under Regulation 13 of the NHS (General Dental Services) Amendment (No 6) Regulations 2001;
b. His specific declaration that he had not been subject to such an investigation;
c. His failure, when asked, to provide full details, i.e. the nature of the complaint or the facts surrounding the complaint, by his letter of 13 May 2004, and had to be asked further for such details;
d. The failure by Mr Hamilton to point out the adverse findings in his reference, despite being aware of them;
e. Mr Macleod’s failure to offer evidence of retraining in the techniques of post preparation, the operation of x-ray equipment and the interpretation of those results.
He acknowledged that the reports related to treatment over 4 years ago but asserted the PCT’s view that the lack of disclosure, and initial reluctance to provide full details was an indication that Mr Macleod failed to accept the serious circumstances of the case. He asserted that the PCT’s decision to include Mr Macleod on the Supplementary List to work as an assistant, and to review the application for inclusion on the Dental List after 6 months following a clinical reference from his new Principal, was fair.
23. Pursuant to permission given by Directions we issued in this appeal, Mr Macleod lodged a response to the PCT, dated 19 November 2004. On his behalf, his solicitors admitted that his denial of having been the subject of an investigation where the finding was adverse was wrong, asserted that that was an oversight and tendered an apology. By way of explanation it was submitted that the various investigations culminated in the decision of the GDC that there was no need to refer the case to the Professional Conduct Committee, and that decision was interpreted by Mr Macleod as not being adverse to him. The response continued: “He therefore sought to put the matter behind him and when he came to fill in the form, it did not occur to him to refer to the adverse finding which had led to the referral to the GDC in the first place.” It was submitted there was no intention to deceive, and gave information both by his letter of 13 May and (through the Dental Defence Union) by letter of 20 May 2004.
24. It was submitted that Mr Macleod and his advisors were surprised that the reasons relied upon in the PCT’s formal reply (paragraph 22 above) did not include any question arising from his competence or arising out of the investigations which had been undertaken; this, it was suggested, was inconsistent with the decision letter of 27 July (see paragraph 3 above). It was submitted that in the absence of clinical concerns, the rationale for the decision was punitive, and therefore inappropriate.
25. Mr Macleod’s response addressed the specific points set out at (a) to (e) of paragraph 2 above. The non-disclosure was admitted and it was submitted that the PCT was fully aware of the relevant matters by the time it considered the application. It was submitted that Mr Macleod did respond to every request for information thereafter, and that he had never been asked for an explanation of his original failure and that it was so evidently an oversight that no explanation was necessary. He further submitted he neither knew of nor was responsible for the contents of Mr Hamilton’s reference. Lastly he asserted he had never been asked to provide evidence of retraining, although he had supplied such evidence to the GDC.
26. In addition, Mr Macleod lodged documentary evidence of some 20 continuous professional development (“CPD”) courses attended between 2001 (when he was subject to Independent Review) and November 2003 (shortly before the GDC determined not to refer him to the Professional Conduct Committee) [pp 82 – 113].
27. Mr Rose gave evidence on behalf of the PCT. He has extensive experience as a Dental Advisor both to this PCT and to a number of others in the area. He told us he has authority to approve straightforward applications and on the basis of the declaration on the application form (set out above) he believed there was no problem with this application. When he received the information from Salford he had two worries; what the case might involve and why it had not been declared.
28. Mr Rose’s account of the telephone call from Mr Macleod in early May, to which we have referred above, is that he explained to Mr Macleod why there was a delay in their consideration of his application. He said that he asked why Mr Macleod had not declared the adverse findings and what were the details of his case. His recollection was that Mr Macleod basically said it was only one case in 23 years and he didn’t think it important to put on the form, but would send details. He did not otherwise offer an explanation of his failure to disclose. It was put to him in cross examination that he did not ask for an explanation of the omission, but Mr Rose said he definitely did. He remembered the call being brief.
29. Mr Rose said Mr Macleod’s letter of 13 May (see paragraph 16 above) was briefer than he had hoped. Also there was a question whether there was a frank and honest acceptance of the adverse findings, and evidence that his failings had been addressed so the Mr Rose could be satisfied future patients would not be at risk. The information provided to that point was not in his view sufficient to make a judgment on that. Hence the request for further information by the letter of 20 May 2004.
30. Mr Rose said he reviewed the information then provided by the DDU. He regarded the picture revealed by the hearings summarised above as near the top end of the scale of seriousness and warranted further consideration. Among other things he found worrying the evidence given by Mr Macleod within those previous hearings that NHS rates were insufficient to do root canal treatment to a satisfactory standard, and also that in all the records relating to the patient in question he had not recorded his reasons for not treating the patient’s problems. He also noted the concern of dental assessors that even though 8 months had elapsed since Mr Macleod saw the patient, there was gross decay such that it would have been present when seen by Mr Macleod.
31. Mr Rose told us he then looked at Mr Macleod’s responses and did not see any evidence that he had accepted many of the points made against him. He noted that throughout there was a question raised by Mr Macleod as to whether the poor outcome was the patient’s fault or his, which he felt was being canvassed even as late as the letter to the GDC (see paragraph 12 above). More importantly, the treatment done to the patient’s other teeth by the dentist who took over her care was successful, inferentially suggesting the proper preparation work including dealing with decay would produce better outcomes for dental restoration. He gave credit, he said, for Mr Macleod’s attendance at various Post Graduate education courses, but remained uncertain whether Mr Macleod had changed so as to guarantee that patients were not similarly at risk in the future. He told us he felt that the best solution was to put Mr Macleod on the Supplementary List so that the PCT could assess how his attitude and practice had changed. He made his recommendation to the PCT team including Mr Timpson (Director of Operations at the PCT) and others, and the PCT made its decision, subsequently sending letters both to Mr Macleod and to his new Principal (paragraphs 19 and 20 above).
32. In cross-examination it was put to Mr Rose he had not asked for an explanation during his telephone conversation with Mr Macleod, but he told us he had. He was asked about the view he had taken about the letter sent on Mr Macleod’s behalf to the GMC (see paragraph 12 above) and said that there appeared to be only a partial acceptance of the dental assessors’ criticisms and his statement that the patient’s treatment was successful was not born out: five fillings had had to be redone, two root perforations were very unusual in the same patient, and the x-rays taken were of no use. He felt Mr Macleod was putting burdens or responsibility back onto the patient: at the Independent Review Panel hearings he was saying [p 42] he was unable to maintain her oral health to a standard he would have wished as she was unwilling to accept it, but had not recorded this in the patient records. He remained concerned that these matters did not seem important to Mr Macleod as he was saying that they were not at the front of his mind.
33. Mr Rose said he was aware that including Mr Macleod on the Dental List enabled him to practise anywhere in the PCT area as an unsupervised Principal (not merely as an associate in the practice of Mr Izadkhah, which is what his application form indicated he intended). However he thought that he could strike a balance between concerns over his clinical practice and enabling him to earn his livelihood by the solution which had been put forward of admitting him to the Supplementary List as an assistant and reviewing the situation in six months with a fresh clinical reference.
34. Mr Rose was asked about his views on the further training undertaken by Mr Macleod in light of the documents produced to this panel at pp 82-113. He said he had considered these now and gave full credit for doing the courses, although everybody had to carry out the x-ray course every three years. However he said it was necessary to have in mind the difference between attending post-graduate courses and retraining. There is no validation of what is learned and applied. The only way of know whether Mr Macleod was putting it into operation was to know what he is doing in his clinical practice. When considering the evidence giving rise to adverse findings he had been concerned about some of the simple dental things: proper examination and planning and making sure you deal with decay.
35. Mr Rose was asked about a Service Agreement entered into between Mr Macleod and Salford PCT, and in particular the suggestion that it meant Mr Macleod had been regarded as having a sufficient level of competence to be put into this type of arrangement. Mr Rose told us this type of agreement was being piloted in a number of areas and Mr Macleod would not have been subject to any auditing prior to granting such contracts. The fact that there was such a contract did not imply a judgment of his clinical standard.
36. In answer to questions from the panel, Mr Rose said that retraining involved attending post-graduate education sessions then carrying out those changes in your own practice and auditing them to see if they were bearing fruit. He agreed there was not a formal remit to Mr Izadkhah, (Mr Macleod’s proposed Principal) but he would need to monitor his assistant in any event and would know he was required to report in six months. He told us he wanted reassurance across a whole range of clinical skills.
37. Mr Macleod gave evidence to us on his own behalf. He gave us an outline of his earlier career, in particular that he had practised on the Salford PCT Dental List for 23 years, and also in Stockport for 20 years. He said that when a patient complained about his treatment in 2001 he was shocked, and took on board all the opinions of the Independent Review Panel, and of the Dental Disciplinary Committee, and discussed things with (among others) the Associate Postgraduate Dental Dean at the University of Manchester (Dept of Postgraduate Medicine and Dentistry) to arrange further courses. He said when he received the letter of 9 December 2003 from the GDC [p 65] he was relieved and hoped it never happened again. He considered it to be an end of proceedings against him.
38. When asked why he had not disclosed the previous investigations which resulted in adverse findings, he said they were not in his mind because they were concluded.
39. He said he had telephoned the PCT some time after lodging his application, to arrange to get a number, which he had not previously had. He spoke to an officer about the progress of his application and was put through to Mr Rose. On his account Mr Rose told him there was a problem with his application namely his previous case. He just asked Mr Macleod to provide details of the case he had been involved with, and where it led. He denied being asked why he had not declared the adverse finding and indeed said no further clarification was sought during that conversation. As he did not have the paperwork he telephoned the DDU to get a reference number which he put in his letter of 13 May 2004. He thought that would suffice. Then he received the PCT’s letter of 20 May asking from more detail, so contacted the DDU to authorise them to send the documents relating to the IRP, the DDC and the GDC directly on. He told us that no further clarification was sought, nor was he asked for details of courses he had attended.
40. Mr Macleod attached some weight to the fact that Salford PCT had entered into a new style services contract with him which he said a health and safety risk assessment and review of postgraduate education. He had not previously heard of plans to monitor and report on his clinical practice.
41. Cross-examined for the PCT he said when he answered “no” to the question about previous investigations, it was an oversight because it was all behind him. Questioned further he said it was at the back of his mind. It was not a consideration; he had drawn a line in the sand. Finally he said he did consider it but he put it behind him.
42. Asked further about his response when Mr Rose pointed out to him on the telephone that he had given inaccurate and incomplete information, he said it concerned him because he had not filled the form in right and he wanted everything to be processed and correct. Mr Macleod denied being asked for anything more than the information he had supplied. He said if he had been asked to give an explanation for his omission he would have done so.
43. Mr Macleod agreed that when entering into the new style contract with Salford, nobody had come in to assess his clinical abilities.
44. When asked what objective evidence there was to show a proper degree of skill in the provision of oral health care, he said he had attended courses recommended by the postgraduate Dean but did not have anything from another practitioner or PCT to say he had been assessed.
45. Questioned further by the Panel, he said it was reasonable for the PCT to have concerns about his clinical practice in view of the adverse findings of the IRP. Asked about what changes he had effected in his clinical practice as a result of his experiences, he said he had a new computer system which enabled more audit and gave more management controls. His practice had changed by only taking on patients he felt comfortable with, so if a higher degree of specialisation were required, he referred on. He said he referred on more patients these days. He also told us he was going over to digital x-rays to avoid problems with the developing of the films, which faded. Previously he had not taken x-rays for posts, and now did so. He said he had also been through his record keeping but had not arranged any peer review of that.
46. Asked what he understood the decision letter of 27 June 2004 to be referring to when it referred to “your disciplinary record” he said that the only disciplinary record he had related to his clinical competence, and agreed that it was appropriate to be satisfied as to his competency on this application
47. We were addressed on behalf of the PCT by Ms Green. On the issue of a false declaration as to previous investigations, she drew our attention to the fact that there had been two separate hearing before the IRP and before the DDC at Preston which had concluded just over a year before this application. The GDC decision was only four months before Mr Macleod submitted his application form, and in it he was advised to practise within the limits of his competency in future. In those circumstances it was difficult to understand why he had made no reference to them. She submitted that Mr Macleod had a duty to provide full information whether or not a specific request was made, and invited us to say it was a positive decision not to disclose the previous adverse findings.
48. Ms Green submitted that the extended course of treatment given to the patient who was the subject of the investigations was found to be seriously deficient by two investigating committees, and that Mr Rose was right to be concerned that the letter submitted on Mr Macleod’s behalf to the GDC appeared to accept some only of the deficiencies identified, and that Mr Macleod did not appear to appreciate the seriousness of the findings.
49. She submitted that in arriving at his decision Mr Rose (and on the basis of his recommendation, the PCT) considered:
a. Mr Macleod’s declaration and failure to disclose important and relevant information;
b. The lack of any explanation for that;
c. The lack of information provided when first requested to do so;
d. The reluctance to accept deficiencies identified by the various bodies other than the root fillings;
e. The nature of the investigations consisting of two independent hearings;
f. The relevance of the investigations to the provision of general dental services on an NHS List, and the fact that the complaint was serious;
g. The indications that Mr Macleod did not appear to accept the seriousness of criticisms of his clinical standards which could put patients at risk;
h. The length of time since the incident occurred and the investigation;
i. The penalty imposed by Preston DDC and their findings.
Nevertheless Mr Rose was still of the opinion Mr Macleod could be included on the Supplementary List to work as an assistant. There was every indication his application would be reviewed with an up to date clinical reference, with a view to including him on the Principals List at that time. She submitted that in all the circumstances Mr Macleod was unsuitable to be included on the List he had applied for.
50. Mr Briggs addressed us on behalf of Mr Macleod. He submitted the question was whether he was unsuitable to be included in the Principals List. He said the reasons had fluctuated and had been expanded today. The primary reason advanced was a failure to disclose and it was conceded Mr Macleod should have referred to those matters, but it was important to consider his state of mind. Mr Briggs urged that it was only if we found Mr Macleod was dishonest that we should take an adverse view of this omission. He conceded that the non-disclosure also went to Mr Macleod’s insight. He asked us to look at the records of the proceedings before the IRP and DDC, and submitted the patient was not an easy one. As to the submissions made to the GDC, he said a dentist was entitled to defend himself. Mr Briggs submitted that the GDC letter was arguably not an adverse finding.
51. As to the reasons for non-disclosure Mr Briggs said he put forward not an excuse but an explanation. He urged us to understand that this was a horrible experience which it was human to choose to ignore. He also submitted that Mr Macleod either banished it from his mind, or it was in his mind but not as an adverse finding (having regard to the GDC’s conclusion).
52. Mr Briggs criticised the reasons advanced by the PCT in its reply to this appeal dated 20 September [pp 5 - 7], suggesting that those concerns did not identify any clinical matter. He also submitted that Mr Macleod was never asked to give an explanation for his false declaration, and therefore it was improbable that the PCT had attached much weight to it. Moreover the PCT had full details of the previous investigations within days, when it received the letter from the DDU with enclosures. He addressed the point about retraining, asking rhetorically what more Mr Macleod could do than attend postgraduate courses, and that it was unreasonable to require more.
53. As to clinical concerns, Mr Briggs said that they had not previously been spelled out, and as the GDC had been satisfied on the evidence of postgraduate training submitted to it at the time of the preliminary investigation, so also should the PCT be satisfied. He conceded he could not submit that clinical considerations were not in the mind of the PCT, in light of its decision letter dated 27 July 2004. He also conceded that the clinical concerns were not groundless, but said they had been addressed unreasonably: it was unreasonable to say he should demonstrate that good practice has been incorporated into his own practice, because it was not part of the recommendations of the earlier tribunals. He pointed out that he remains a Principal on the Salford PCT Dental List and it was illogical if he were suitable for their List and not for this PCT’s List.
Relevant Statutory law
54. By Regulation 5ZA (1) of the National Health Service (General Dental Services) Regulations 1992 (as amended) “the grounds on which [the PCT] may refuse to include a dentist in the dental list include (a) that they have considered the declaration required by paragraph 5B of Schedule 2 and any other information in their possession in relation to his application and consider he us unsuitable to be included in the list.”
55. Schedule 2 of those regulations stipulates the information which must be included in an application for inclusion in a Dental List. By paragraph 5B he must include information on whether
(f) he is currently, or has been where the outcome is adverse, subject to any investigation into his professional conduct by any licensing, regulatory or other body anywhere in the world;
(g) he is to his knowledge, or has been where the outcome was adverse, subject to any investigation into his professional conduct in respect of any current or previous employment.
56. By Regulation 5ZC an appeal by a dentist to the FHSAA against a decision to refuse to include his name in a list pursuant to Regulation 5(1) shall be by way of redetermination.
57. We find that for the purpose of disclosure under paragraph 5B (g) of Schedule 2 of the 1992 Regulations, both the IPR and DDC investigations were investigations into his professional conduct in respect of his current or previous employment, where the outcome was adverse. Mr Macleod was under an obligation to provide the prescribed information about them in or with his application form. We do not regard the GDC determination as an adverse outcome for the purpose of paragraph 5B (f) of Schedule 2, although the terms of the letter from the preliminary committee necessarily carry a criticism of the standard of his professional skill and care which a prudent dentist, properly concerned to be candid with his prospective PCT, would have disclosed, if necessary together with words of explanation that it arose out of one and the same set of facts.
58. We find that Mr Macleod deliberately gave a false answer in the declaration he was required to sign about previous investigations by the IRP and by the Preston DDC. We have considered the various ways in which Mr Macleod has sought to explain to us why he failed to disclose these adverse findings, and have found his evidence unconvincing. He has not suggested he did not read the application form properly, and indeed it would not be to his credit were that so. Rather he says he did consider the question but “put it behind me”. It is not clear how giving a false answer about the previous findings achieves that. These professionally anxious events were not out of his recall. In our view he was aware of what was being requested: the GDC determination was only 4 months previously and the substantive DDC determination only a little over 12 months previously. These were long running matters giving rise to two extensive hearings and could not have been overlooked. Nor do we think Mr Macleod was under any illusion but that the IRP and DDC findings were adverse findings, or that (in the scale of things) they were treated as quite serious matters, by reason of the nature and extent of the criticisms of his skills and patient procedures, and also by reason of the substantial withholding of remuneration and referral to the GDC for consideration of disciplinary steps based on his fitness to practise.
59. We cannot be satisfied that Mr Rose adequately brought to the attention of Mr Macleod, during their telephone conversation in early May 2004, that he was seeking an explanation for the omission to disclose the earlier adverse findings, as well as seeking detailed information about them. Mr Rose believes he did so, but we accept this point did not get across to Mr Macleod, whatever he may have intended. A telephone conversation is not the appropriate way to raise a request which may have some bearing on the decision which the PCT will take. It is in everyone’s interests to put such a request in writing.
60. But a dentist who is under a statutory obligation to provide important information about his professional past (as Mr Macleod was), and who is told that the PCT has discovered he has previous adverse findings when in fact he told them in his application that he did not, should not have to be asked to why he did it. The question the PCT has to address is whether the dentist is suitable for inclusion on the Dental List. If there is genuine error or a reasonable explanation, then the PCT is unlikely to hold it against the dentist that he gave false information in the declaration. If no explanation is volunteered or an explanation is given which is unconvincing, the dentist cannot be surprised if the PCT takes this into account on the question of his suitability. It may reflect on his honesty, and on how seriously he has taken to heart and tried to remedy the deficiencies found in his dental skills.
61. We find that the PCT had in mind the clinical competencies of Mr Macleod when reaching its decision contained in the letter of 27 July 2004. The subject matter of the “disciplinary record” which had been brought to its attention by the documents disclosed from the IRP and DDC were concerned solely with those clinical competencies, and reference to the disciplinary record was intended to convey that. It is clear to us that both Mr Macleod and his legal advisors understood this to be so. We also find that Mr Rose (who was very influential if not the directing mind of the PCT in this matter) effectively considered the question whether, in consequence, Mr Macleod was suitable for inclusion on the Dental List as a Principal. His conclusion, and that of the PCT, was that he was not, but was suitable for inclusion on the Supplementary List, where he would be monitored to some degree. We accept that a concern in the mind of Mr Rose was that by admitting Mr Macleod to the Dental List, he would be enabled to practise in future as an unsupervised principal anywhere in the area of this PCT, notwithstanding that the immediate intention disclosed by his application form was to practise only as an assistant to Mr Izadkhah. He, and in consequence the PCT, reached the conclusion that Mr Macleod was unsuitable for inclusion in the Dental List but that a proportionate response was to admit him to the Supplementary List and invite a further reference on his clinical competencies in six months time, with a view to admission to the Dental List.
62. Notwithstanding our findings as to the meaning of the decision letter of 27 July 2004, it is necessary to state that in our view that letter was inadequate and defective. A dentist is entitled to be informed in clear words not only what is the decision, but also the reasons for it (and any facts relied on) and of any right of appeal against the decision (see Regulation 5ZA(5) of the NHS (General Dental Services) Regulations 1992, as amended). This letter failed to state that the reason was “unsuitability”, or to identify the facts relied on, other than that the decision was in view of his disciplinary record, or to inform Mr Macleod of his right of appeal. In fact he was advised appropriately so as to safeguard his right of appeal, and although complaint has been made that the PCT only made explicit the reason (unsuitability) for the decision at the outset of this hearing, no submission was made for an adjournment or to admit further evidence, and indeed we think that, on analysis, the reason identified in the PCT’s letter can only be one concerned with suitability.
63. However, our function is to approach this appeal as a redetermination. The PCT has put its case solely on the question of “suitability” for inclusion in the Dental List, and so do we. We have to reach our own decision as to whether Mr Macleod is suitable for inclusion on the Dental List.
64. We find that the lack of clinical competencies demonstrated through the extensive investigations before the IRP and the Preston DDC were serious and extensive. We have accepted the invitation to read carefully the extensive documents relating to the two hearings and the findings emerging from those hearings. These are not esoteric areas of dentistry. In our view these investigations demonstrated failures in the routine provision of general dental services, which would not be sufficiently cured by simply electing to refer on more patients for specialist treatment.
65. Having heard Mr Macleod for ourselves and considered his evidence, together with the history of this matter as we have found it to be, we also find that he lacked, and continues to lack, insight into the nature of his own clinical failings and the importance of showing that he has remedied them in his daily professional practice. By way of example, when asked what had changed in the way he conducted his dental practice since the conclusion of these investigations, his answer was that he had installed a new computer system, which has little or no bearing on the nature of the clinical failings which had been identified. He did not offer us, despite being given opportunity, satisfactory or convincing evidence of having addressed the problems of poor planning of a course of treatment and poor record keeping, communication with the patient about treatment recommendations, identifying and dealing with decay in a timely and effective way before embarking on other dental work, and implementation of necessary skills in taking and interpreting x-rays.
66. We have in mind that if included in the Dental List, Mr Macleod is at liberty to practise as a Principal (including as a sole practitioner) anywhere within the PCT area, whatever his current arrangements are as an assistant to Mr Izadkhah.
67. In the circumstances it is in our view necessary to be satisfied that Mr Macleod had remedied the deficiencies identified by the investigations of the IRP and the DDC, not simply by attending suitable further education sessions, but so that we could be reasonably satisfied that the improvements had been adopted in his daily professional practice. We are not so satisfied on all the evidence
68. We acknowledge Mr Macleod’s attendance at postgraduate courses as listed at pages 111-113 of the appeal bundle. Continuous professional development would require attendance at some of these (including some x-ray refresher courses) in any event. But there was no adequate independent evidence of the way in which Mr Macleod practised in any of the previously criticised areas. Indeed there seemed to be no possibility, presently, of producing such evidence because he had not arranged or been subject to independent verification by peer review in the areas of concern.
69. We are all the more likely to look for independent verification because we have found that Mr Macleod deliberately made a false declaration on his application form. We find this reflects adversely on his candour when he feels under pressure, or in a corner, and also reflects on his insight.
70. The importance of careful and truthful declarations in application forms was recently underlined by Mr Justice Stanley Burnton in Kataria –v- Essex Strategic Health Authority  EWHC 641 (Admin):
“No one should sign any document that will be relied upon that he does not believe to be true or which he believes to be false or misleading and a doctor should not require a “Good Medical Practice” to appreciate this.”
71. It is the unanimous decision of the panel that this appeal be dismissed.
72. Our decision is on the basis that:
a. Mr Macleod has been placed on, and remains on the Supplementary List of this PCT, and
b. that the PCT remains willing to reconsider an application by Mr Macleod to go on the Dental List as a Principal, once he has completed about 6 months working as an assistant, and provided a suitable up-to-date clinical reference from his Principal Mr Izadkhah.
73. The fact that Mr Macleod continues to be able to practise as an assistant dentist in the very role which he specified when applying for inclusion in the Dental List, is a significant factor in our view that the dismissal of this appeal is proportionate.
74. In our view it is unsatisfactory that Mr Izadkhah was not given clear written guidance from the PCT that it would require such a clinical reference (although he was apparently spoken to) and what clinical areas the PCT particularly wanted him to address, so that he could monitor appropriately. We invite the PCT to formulate a brief list, limited to the areas of concern identified by the IRP and the DDC, or such or them as they consider important to their decision, and send it to both Mr Izadkhah and to Mr Macleod, before a clinical reference is obtained. It should not of course identify the earlier adverse findings, but simply invite comment on the particular clinical skills and practices.
75. In light of our earlier observations we consider the PCT should revise its practice so as to ensure that:
a. Requests for information or for explanations which may influence its decision are normally made in writing, rather than by telephone, so as to avoid any scope for misunderstanding. If, in the interests of speed, a telephone call is made, the substance should then be put into a letter.
b. Written decisions on applications for inclusion in any Dental List comply fully with Regulation 5ZA(5) of the NHS (General Dental Services) Regulations 1992, as amended, or any successor provision; in particular to identify clearly which of the reasons listed in the Regulations are relied upon in rejecting an application, and (in brief) the facts relied upon.
76. A party to these proceedings has the right to appeal this decision under Section 11 of the Tribunals and Inquiries Act 1992. in which case a Notice of Appeal must be filed in the District Registry at an Appeal Centre in the Circuit in which the FHSAA is situated within 28 days.
28th February 2005
CASE NO. 11393
IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY
Mr. D Pratt - Chair
Mrs. M A Harley - Member
(GDC number 55478)
EASTERN CHESHIRE PRIMARY CARE TRUST