IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY
CASE NUMBER: 11447
Mr T Jones Chairman
Dr RK Rathi Professional Member
Mr TP Bennett Member
DR RP SINHA
(GMC No: 2409467)
NORTH MANCHESTER PRIMARY CARE TRUST
DECISION WITH REASONS
1. The Appeal
Dr RP Sinha (“the Appellant”) appeals the decision of the North Manchester Primary Care Trust (“the PCT”) of 26th August 2004 to refuse to include the Appellant on its medical performers list in relation to areas of, firstly, suitability (Regulation 6(1)(a)); and secondly, with regard to clinical references (Regulation 6(1)(b)) of The National Health Service (Performers Lists) Regulations 2004. Regulation 6(4) sets out criteria which the PCT were bound to take into consideration prior to making a decision to refuse to include a practitioner. Subsequent to lodging the Notice of Appeal clinical references were provided, such that the PCT did not oppose the Appellant's appeal in that regard, leaving only the issue of suitability for us to redetermine.
The Appellant who was born in 1947, qualified in 1971, and practiced initially in India until 1978. He began to practice in the United Kingdom; working initially in hospitals but moving to general practice in 1991. In 1997 as noted in the CV produced, he joined the St Georges Medical Practice in Moston, Manchester. This was a three partner inner city practice. One of the principals left the practice in October 2001, leaving the Appellant and a colleague to cope with a list of approximately 6,500 patients. The Appellant’s remaining partner took sick leave in July 2002. The Appellant was left to cope in this practice, with the assistance of a part time locum. Management and financial responsibilities for the practice were left for the Appellant to cope with, together with his clinical work. During this time the Appellant was also experiencing personal difficulties, in relation to a contact dispute as between the Appellant and his ex-wife, concerning contact with the Appellant's daughter.
3. On 19th November 2002 an incident occurred at the practice. The Appellant was later convicted in the Magistrates Courts of allegations of common assault upon two members of the practice staff. We understand it was alleged that the Appellant took one member of staff by the upper arms or shoulders, shaking her, and pushed aside another member of staff, who came to assist her. At Manchester Magistrates Court on 4th December 2003 the allegations of common assault being found proved the Appellant was sentenced to penalties of £500.00 fine in respect of each of the two charges; a Compensation Order of £150 was made on each count; he was ordered to pay the cost of the prosecution set at £750.00.
4. On the 27th May 2004 the General Medical Council (“the GMC”) concluded that this matter should not be referred to the Professional Conduct Committee. The Preliminary Proceedings Committee concluded matters by giving the Appellant a warning.
5. The PCT were aware of the allegations of assault from an early stage. The PCT submitted that it followed due process in bringing the matter to a formal hearing. There was a delay following a submission by Dr Sinha for inclusion on the Performance List, this was largely it is said down to a delay in obtaining a Criminal Records Bureau Report (“the CRB Report”) in respect of the Appellant. Dr Sinha was invited to comment upon the same, it included reference to other matters in relation to a different allegation of assault, which was dismissed; and, of an allegation made in relation to Dr Sinha by his ex-wife in the context of the contact issue. At the hearing Mr Harrop, Director of Operations for the PCT, conceded that whilst the PCT was aware of these matters, the focus of the PCT decision was based on the convictions for common assault; indeed, in evidence before us Mr Harrop was noted as stating “they were in our knowledge but do not provide the weight of our decision… they are not relevant”. Mr Harrop also, in the context of latest witness statement in his evidence, stated that Dr Sinha perhaps had not been aware of the focus of the PCT enquiry, when making their decision on 26th August 2004, particularly as regards input as to a determination made by the PCT panel as to the relevance and seriousness of the convictions and sentence for the assaults. Mr Harrop in his statement and evidence put forward a view of their seriousness, basing this on his understanding of Court procedure and practice, gained sitting as a Lay Magistrate in an adjacent petty sessional area.
6. The hearing of the appeal
The appeal was heard at Harrogate on 17th December 2004 by way of a directions hearing and then set down for a full hearing on 26th January 2005. At that hearing the Appellant was represented by Mr Horne of Counsel. The PCT was represented by Miss Richler-Potts. Oral evidence was received from Mr Harrop, Director of Operations at the North Manchester PCT, as well as from the Appellant and Dr Fink, Honorary Secretary of the Manchester Local Medical Committee.
7. At the outset contained, within the skeleton arguments on behalf of both parties to the appeal, it was understood that the jurisdiction which the FHSAA panel operated in respect of this appeal was one by way of a re-determination of the issues. The burden of proving Dr Sinha is unsuitable for inclusion in its performance list rested upon the PCT, against a standard of proof which could perhaps be referred to as the “high civil standard”. This being a flexible standard of proof to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of those proving those matters. The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus prove it. In relation to serious allegations, there may be no difference in practical terms between the civil standard of proof and the criminal.
8. As is stated above, evidence was received as is set out in the Record of Proceedings, and this together with the information comprised in the bundle of papers, has been taken fully into account by us. At the conclusion of the evidence we were addressed in closing by the advocates for the parties to the appeal.
9. The Evidence
The only witness called by the PCT was Mr Harrop, Director of Operations of North Manchester PCT since 1st September 2003. He adopted his most recent statement of 18th January 2005, as being an encapsulation of earlier statements he had submitted in connection with his matter, and was then cross-examined. In the course of cross-examination Mr Harrop felt that the PCT had assessed the information before it fairly. He conceded that whilst the Appellant had been written to preceding the hearing this did not include reference in relation to the specifics of the assault conviction and weight to be attached to the level of sentence. Mr Harrop also had to concede in some measure, the issue raised as regards the level of stress the Appellant was suffering at the time of this incident was not fully discussed at the PCT panel. Mr Harrop himself was relatively recent in post, and did not know the Appellant, but acknowledged that the medical member of the panel would have known of this issue. Mr Harrop considered that the level of fine, and the overall sentence, suggested the sentence was such that the Court must have taken the matter seriously; such that it was to be of significance and influenced markedly the PCT panel reaching its decision.
10. Dr Sinha gave evidence and adopted as his evidence-in-chief his two statements within the bundle and curriculum vitae annexed thereto. He was cross-examined as to the number of patients on his list, and his efforts to secure locum cover, prior to the incident in November 2002. He acknowledged that he was subject to stress, but had otherwise enjoyed good patient relations within his practice. In the past two years he said had plenty of opportunity to reflect upon the cause of the stress which he said led to the incident, and of ways of avoiding the same. He particularly stated that if he felt stressed in the future, he would seek out help, without reservation.
11. Dr Fink gave evidence as to the input of the Local Medical Committee. He gave evidence as regards the effects and pressure of a practice list of over six thousand patients in such an area of practice.
12. At the end of the hearing we were addressed by the advocates in turn for the PCT and Appellant.
13. Ms Richler-Potts pointed to the convictions for common assault on former staff members, as being the basis upon which it is thought that the Appellant is unsuitable for inclusion on the list. She submitted that the PCT decision made was balanced and fair, and that Mr Harrop was in a position to give input at that meeting as regards the substantial nature of the penalty imposed. She was concerned that Dr Sinha had not demonstrated, in her submission, remorse or expressed adequately how he would cope with stress, or identify it, in the future. She concluded by pointing out that the PCT was not bound by the GMC’s decision, any more than this panel should be at the conclusion of this hearing.
14. Mr Horne, on behalf of the Appellant, reiterated the basis upon which the advocates were approaching issues, as to the burden and standard of proof, and that the hearing was a re-determination of the matters afresh.
15. He was at particular pains to point to the Magistrates’ Association sentencing guidelines and also as to how the PCT would be guided by the Regulations; particularly in regards to areas of disqualification under Regulation 6(2), and other matters which should be taken particularly into account as highlighted within paragraph 6(4). He prayed in aid that the position as regards those other matters referred to in the CRB Report, were not made out in the course of hearings determining the same, and pointed to the evidence of Mr Harrop at the hearing that they were not relevant and urged us to take a similar view. Mr Horne also submitted, whilst it did not bind this panel, he referred us to the decision of the GMC at pages 110 and 109 within the bundle. He also stressed that the Appellant was otherwise a clinician with many years of experience, without prior complaint from any patient.
16. When dealing with the key issue of risk of recurrence, he recited that he we have the benefit of having seen and heard Dr Sinha; a man of quiet disposition, a person who now with the passage of time has the insight to deal with issues of stress. He reminded us, as been put in his evidence today the Appellant would not have the slightest reservation to seek out help. His workload would never again be likely to be so overwhelming. His personal issues in relation to stress have been resolved satisfactorily in relation to contact with his daughter; now if anything having been not only facilitated but vastly enhanced. Mr Horne concluded by asking should a moment of madness, brought on by significant professional and personal stress, be the end to his career in NHS practice.
17. Our Conclusions
We were addressed by both advocates; both orally and in the terms of skeleton arguments produced as to the burden and standard of proof and that the hearing would fall to be a re-determination of the matter. Therein we agree. We were also addressed as to this being an appeal where there is now only issue standing in relation to suitability under Regulation 6(1)(a) and, as such, there would be no provision for us to impose any conditions if allowing Dr Sinha’s appeal. Therein we agree also.
18. We also noted that one of the primary considerations to be applied in our deliberation would be the protection of patients. Indeed, protection of patients should be the overriding consideration when considering whether an Appellant should be admitted to a list. Applying the tests enunciated earlier we found that the Appellant's conduct in relation to the incidents of assault; both occurring at the same time, were unprofessional and inappropriate, regardless of the circumstances of which the Appellant found himself in. It was clear, however, on the available evidence before us that this was, as has been submitted on behalf of the Appellant, a momentary aberration, especially when one sets it in to the context of the Appellant's previous unblemished clinical history, the absence of any complaints from patients. There is no doubt, as was brought to our attention, that the pressures placed upon the Appellant in the performance of his duties with such a high number of patients with only locum assistance, would bring about a significant work load, and indeed a most stressful one as has been outlined to us. Further, it is also clear that the Appellant was subject to stress in relation to an ongoing contact dispute concerning his daughter.
19. It is clear to us, with the passage of time, that the Appellant is well aware of the extent to which his behaviour on that occasion fell well below that required of him. We did not set any weight to the other matters arising in the CRB report; they were clearly unsubstantiated when tested. We have heard how long the jury took to dismiss one matter, of the time between incident and complaint, and in the other matter that the Appellant was completely exonerated; we attach no weight to them. We have, through the course of the hearing, had an opportunity of observing and noting the demeanour of the Appellant at the hearing. We have also heard evidence from Dr Fink concerning his input with the Appellant. We also noted, whilst it was for us to make our own decision, that it was clear that the GMC noted the Appellant's remorse and apology for his behaviour. We did not find, taking into account information given to us as regards the Appellant's means at the time of the hearing; that the fine was at such level that the Appellant should not be admitted to the list. It was clear that far from increasing penalty, the sentencing court, presumably properly advised by a qualified Legal Advisor departed from Sentencing Guidelines and imposed a lesser penalty, a fine. We found the evidence of Mr Harrop in relation to his interpretation of the same unhelpful; and, further clearly in error, when giving consideration to the level of costs imposed, as being an indicator of seriousness in itself.
20. We find that there has been a sufficient length of time since the offence for the Appellant, who we feel has given genuine and credible evidence as regards his future intentions to deal with issues of stress, and to have reflected fully on all the circumstances leading to this hearing. We find that the PCT has not, against the appropriate standard, satisfied us that the Appellant is unsuitable for inclusion in the performers list. We allow this appeal.
21 Appeal Allowed.
Mr T Jones, Chairman
23rd February 2005
Either party to these proceedings has the right to appeal this decision under and by virtue of Secretary of State. II Tribunals and Inquiries Act 1992.