CASE NUMBER 11523
APPEAL ON 17TH FEBRUARY 2005
(GMC Registration
Number 1734007)
Appellant
and
TOWER HAMLETS
PRIMARY CARE TRUST
Appeal by the Appellant under section 15(1) of the National Health Service (Performers Lists) Regulations 2004 to the Family Health Services Appeal Authority (FHSAA) against the Respondent’s decision to refuse to include him on its Performers List
Appeal dismissed
Mr B Chaudhuri - Appellant
Mr Bhuwanee - SB Solicitors
Mr G Colin - Counsel for the Appellant
Dr M Phannampulam - Witness for the Appellant
Mr B Nagasena - Witness for the Appellant
Mr M Hoque - Witness for the Appellant
Dr D Russell - Respondent’s Representative
(Medical Director for General Practice, NE London FHS Consortium)
Mr M Ackary - NE London FHS Consortium
it was unable to include him in its Performers List because it found the references he had supplied to be unsatisfactory since neither of them related to a recent post and they were therefore out of time. In addition, the Respondent was aware that the Appellant had been removed from the list of Newham PCT and took the view that this removal was appropriate in all the circumstances on the basis the Appellant had failed to comply with the conditions imposed on him by Newham PCT. The Respondent went on to inform the Appellant that he might be able to deal with these issues by either submitting himself to the National Clinical Assessment Authority (NCAA) for assessment or by arranging with the post-graduate Deanery for attachment to a training practice and the completion of a returning to practice module.
wished to appeal the Respondent’s decision.
(i) Jurisdiction
The National Health Service (Performers Lists) Regulations 2004 (the Regulations)
4 ( 2) The performer shall provide the following information-
(f) 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
4 (4) The performer shall send with the application a declaration as to whether he -
(m) has been removed from, contingently removed from, refused admission to, or conditionally included in any list or equivalent list kept by a Primary Care Trust or equivalent body, or is currently suspended from such a list and if so, why and the name of that Trust or equivalent body;
and, if so, he shall give
details, including approximate dates, of where any investigation or proceedings were or are to be
brought, the nature of that investigation or proceedings, and any outcome.
6 (1) The grounds on which a Primary Care Trust may refuse to include a performer in its performers list are, in addition to any prescribed in the relevant Part, that –
(a) having considered the declaration required by regulation 4(4) and (if applicable) regulation 4(5), and any other documents in its possession relating to him, it considers that he is unsuitable to be included in its performers list
(b) having
contacted the referees provided by him under regulation
4(2)(f), it is not satisfied with the references;
(ii) Evidence
1.1 Dr Chaudhuri confirmed the contents of his Witness Statement (pages A80- 85 of the documents) to be true and submitted it as his evidence in chief.
1.2 He had been out of the country until August 2003 and returned to the UK to discover his name had been struck off Newham PCT’s Supplementary List
on his return.
1.3 Since his return he had tried to keep up to date by attending clinical
meetings and lectures and the discussions afterwards.
1.4 He had also undertaken two weeks’ observation training in December 2004 in the Obstetrics & Gynaecology department at Newham University Hospital (page A66) and attended some discussion sessions at one GP
practice in 2004 (page A67) and fifteen surgery sessions at another GP
practice in January 2005 (page A91).
1.5 Dr Chaudhuri also held private sessions two or three times a week where he saw private patients and made referrals.
1.6 He was keen to learn the modern set-up and new procedures, for example for blood pressure, blood sugar, detecting abnormalities in early pregnancy,
respiratory function tests and ECGs.
1.7 He had attended lectures on metabolic and cardiovascular diseases.
1.8 Newham PCT had asked him to identify a two-week period when it could undertake an audit of the medical records of patients who had consulted him as a GP and Clifden Road Surgery had indicated a period in November
2002 which would be suitable (page 13) but no-one went to look.
1.9 Dr Chaudhuri confirmed he was up to date with computer record-keeping
and he gave up to date health advice to people he saw every Sunday at Bengali International, many of whom were not registered with a GP. Where possible he routinely informed patients’ GPs of any relevant findings..
1.10 He had attempted to comply with the Respondent’s suggestions and
contacted both the NCAA and the post-graduate Deanery but they had both indicated their assessment and courses did not cover someone who was not
already included on a Performers List.
1.11 He wanted to be included in the Performers List as he wanted to continue practising as a doctor and he did not want to retire. He had enjoyed an
unblemished career and he wanted to help the Bangladeshi community in his area.
1.12 In response to questions – when Dr Chaudhuri was referred to the letter from the London Deanery dated 30th November 2004 (page A89) which noted that the Respondent had worked hard to find solutions for him and questioned whether he should return to clinical practice, considering the current requirements of the performance list, he responded that older doctors than him were still working.
1.13 If he was given the chance to go onto the Performers List he would meet all the requirements.
1.14 He could not say when he had last undertaken basic life-support refresher training although he had recently observed someone else doing it.
1.15 When asked to name the ten clinical domains of the quality and outcomes framework of the GMS contract he did not know what this meant.
1.16 He had not undertaken a GP appraisal in the last twelve months but would do so if he was put on the Performers List..
1.17 When asked what are the current standards of record-keeping expected of GPs, Dr Chaudhuri responded that no-one had complained about his record- keeping when he was in practice. He was ready to comply as necessary.
1.18 Dr Chaudhuri contended that he was familiar with computerised record- keeping systems but when questioned he did not know which screen to use for entering an appointment on the EMIS system.
1.19 He was also unaware of the NICE Guidance in relation to current clinical
practice.
1.20 He was aware of the BMI calculation for measuring the height and weight of
patients.
1.21 Dr Chaudhuri admitted he never had any of his machines externally
calibrated.
1.22 He did not know whether his two GP referees had any experience as
educationalists or trainers.
1.23 Dr Chaudhuri had chosen Obstetrics and Gynaecology observation to update
himself and to learn more about defective situations. It was always his favourite subject.
1.24 He thought he followed the guidelines contained in Good Medical Practice, but on further questioning he was unable to name any of the clinical domains listed therein.
1.25 His understanding of what clinical governance means in modern practice was the requirement to follow national and area guidelines and to be up to date and have a scientific approach to situations. If he was allowed onto the Performers List he promised he would remain active.
1.26 When Dr Chaudhuri had worked at Dr Rahman’s practice between 30th December 2002 and 7th February 2003 and between 17th February and 31st March 2003 he had coped single-handed with this large practice of over3800 patients.
1.27 Likewise, when he did locums from February 2001 to December 2002 he had coped on his own with a large practice for six months and then worked continuously in another practice with two other doctors.
1.28 He had immediately informed Newham PCT by telephone that they could
speak to the Practice Manager at Dr Kapur’s surgery to carry out its audit in October 2002.
1.29 He had attended two ninety-minute lectures at Newham General Hospital
one month ago and he had attended three evening meetings at the Royal Society of Medicine about the anaesthetic management of acute situations and booked to attend more meetings there.
2.1 Dr Phannampulam confirmed the veracity of the contents of his Witness
Statement and that it comprised his evidence in chief (page A98). He had known the Appellant for over twenty years and was in practice as a locum GP.
2.2 He had worked as an assistant at Dr Chaudhuri’s surgery in 2000 and 2001.
He had studied his methodology, clinical practice, knowledge and diagnostic skills and was impressed by all of them. Dr Chaudhuri had long experience in general practice.
2.3 Recently, they had gone to post-graduate meetings together and discussed
them and other administrative changes in the NHS. Dr Chaudhuri read the BMJ and GP journals and during the last six months Dr Chaudhuri had come to his surgery and discussed cases with him.
2.4 Dr Chaudhuri had told him about computerised record keeping and the EMIS system although Dr Phannampulam had not seen him use them.
2.5 In response to questions – Dr Phannampulam confirmed he did not have GP
qualifications but he did have acquired rights from the RCGP. He should have been automatically transferred from the Supplementary List to the Performers List.
2.6 He had not seen any of Dr Chaudhuri’s clinical practice in the last twelve months.
3. Mr B Nagasena (witness for the Appellant)
3.1 Mr Nagasena was the Head Monk of a Buddhist temple. He confirmed the
veracity of the contents of his Witness Statement and that it comprised his evidence in chief (page A100).
3.2 He felt Dr Chaudhuri was the victim of racial discrimination.
3.3 Dr Chaudhuri had over thirty years’ experience and did very good work. He
should be allowed to continue helping people.
4. Mr M S Hoque (witness for the Appellant)
4.1 Mr Hoque confirmed the veracity of the contents of his Witness Statement and that it comprised his evidence in chief (page A93).
5. Dr D Russell
5.1 The PCT’s case was straightforward. The Regulations were introduced to
protect the public and support doctors. The Health Act places a duty of care and of quality on health providers and members of the medical profession must meet those requirements.
5.2 Applications were passed on to Dr Russell as Medical Director of the PCT He
was also Lead Director for Clinical Governance at the PCT and a practising GP. He had previously been a GP trainer and he was currently a GP appraiser and mentor.
5.3 Dr Russell scrutinised applications to the Performers List, assessed whether the
references were suitable, and advised the PCT on the response to be made.
5.4 The PCT had written to Dr Chaudhuri on Dr Russell’s advice rejecting his
application on the basis of his unsatisfactory references which were out of time. Dr Chaudhuri did not appear to have current experience as required by the Regulations. Furthermore, the Guidance to the Regulations requires PCTs to take account of any previous regulatory body matters including conditions or removal by another body.
5.5 In his response to the FHSAA on Dr Chaudhuri’s appeal (page 37), Dr Russell
had set out the reasons for the PCT’s refusal, and pointed out that as he had been out of practice for a significant period he would need to demonstrate he had taken steps to keep up to date.
5.6 He submitted Dr Chaudhuri’s oral evidence, which had indicated his lack of
familiarity with current general practice, did not reveal a satisfactory level of
knowledge; Dr Chaudhuri had been unable to name any of the ten clinical
domains, his answers about medical computing were unsatisfactory and Dr
Russell would require a great deal more persuasion with evidence of his ability
to use current computing systems, he was unable to explain record-keeping or
name any of the headings in the guidelines in Good Medical Practice, he was
unable to demonstrate any knowledge of the guidelines issued by NICE and he
had not undertaken basic life-support training which was a mandatory
professional requirement.
5.7 Dr Russell did not want to dwell on Dr Chaudhuri’s removal by Newham PCT,
but he submitted there was nothing in the written or oral evidence which equated to the requirements set out in the Regulations being satisfied in relation to his current knowledge and experience of Good Medical Practice.
Accordingly, the PCT stood by its decision.
5.8 The PCT accepted that the advice it had given in its initial refusal letter placed
barriers in Dr Chaudhuri’s way. When the NCAA had been set up Supplementary Lists did not exist. It was regrettable the local deanery was not able to offer Dr Chaudhuri more support; Dr Russell had anticipated it would be able to offer refresher training and provide supervision, although he questioned whether it would have been in the interests of the efficiency of general medical services in terms of cost and time if it had been on offer to Dr Chaudhuri.
5.9 Dr Trompetas at the London Deanery also questioned whether Dr Chaudhuri
should return to medical practice (page A89). He noted the PCT had worked hard to find solutions but considering the current requirements of the Performers List, he inferred it would be very challenging for Dr Chaudhuri to meet the appropriate level of knowledge and experience.
5.10 The PCT had tried to explore alternatives but had been stymied by matters
beyond its control.
5.11 In response to questions – Dr Russell acknowledged the solutions the PCT had
suggested were not viable but they were not within the PCT’s control.
5.12 The PCT could not offer training as this was regulated by accredited,
registered establishments through the deaneries, but it could offer appraisal. However, it would be very difficult for Dr Chaudhuri to provide a suitable portfolio of experience because he had not been in clinical practice.
5.13 The PCT could not supply an approved trainer; it was a question for the
Deanery but Dr Trompetas had inferred this would be an unsuitable course of action.
5.14 Dr Russell
had read the High Court decision (in which Mr Justice Mitting had
indicated that although any observations he made could not bind the authority, it seemed to him that Dr Chaudhuri’s removal [from the Supplementary List of Newham PCT] would not count for much in any decision whether or not to include his name in the new Performers Lists (page29)) but the PCT was nevertheless bound by the Regulations to take into account action taken by other regulatory bodies.
5.15 Dr Chaudhuri had failed to meet the conditions of conditional inclusion
imposed by Newham PCT and they had still not been met.
5.16 The PCT’s refusal letter had not alerted Dr Chaudhuri to the proviso in the Regulations that where the criteria for clinical references cannot be met, applicants should provide a full explanation and the names and addresses of alternative referees
5.17 The Guidance for PCTs relating to the Regulations permitted them to take into account previous employers such as Newham PCT.
5.18 Life support training was available through various providers in Tower Hamlets to anyone who wished to access it.
5.19 On reflection, Dr Russell considered the only way forward for Dr Chaudhuri would be for him to undertake a period of Deanery approved training, which would require conditional inclusion in the Performers List with a prior period of training to be determined by the Deanery, and upon satisfactory completion of that training for the PCT to consider if the conditions had been met and could be removed. Dr Russell regretted the Deanery could not offer him the Returners Course as that was exactly what he was. If this course of action was taken, the PCT would then have current references to consider. However, in determining if this was the right approach, the PCT would need to consider it in terms of it being an efficiency case and whether the NHS would be helped or compromised by this approach.
5.20 The Deanery would fund the acceptance of someone conditionally included in this way onto the Returners Scheme and the PCT would not have any say in the matter. Such a scheme would require the Deanery to arrange for Dr Chaudhuri to spend several months acting as a GP Registrar under the supervision of a GP trainer, compiling a portfolio of experience and achievement, with his level of competence measured by summative assessment. This would be out of the control of the PCT.
5.21 There was now no upper age-limit for entry on the Performers List.
6. Closing
Statement
6.1 Mr Colin - on behalf of Dr Chaudhuri, conceded that the PCT’s decision in
relation to Dr Chaudhuri’s references was valid. He would not discuss Dr Chaudhuri’s removal by Newham PCT except to say the adequacy of his record-keeping had never been determined in that case.
6.2 It seemed to Mr Colin that the most appropriate way forward would be for Dr
Chaudhuri to be conditionally included on the Performers List, subject to him
satisfactorily completing a Returners Scheme. This would achieve the purpose
of the Regulations in that it would both protect the public and support Dr
Chaudhuri. He had a significant following in the community and he was well-
liked, regarded and respected.
6.3 Mr Nagasena had given evidence that Dr Chaudhuri’s talents should be used and
not wasted and other testimonials had demonstrated he was held in high regard. Any concerns regarding his record-keeping or references could be met if he underwent a Returners Scheme.
6.4 Dr Chaudhuri would be willing to comply with any conditions to allow his
inclusion on the Performers List. He had tried absolutely everything to get on to it and tried to follow advice and now he needed support.
6,5 To that extent the Panel was requested to allow the appeal.
6.6 Dr Russell – on behalf of the PCT, asked whether this would be an acceptable
outcome for the PCT.
6.7 The PCT did not have within its gift an approach to the Deanery. He had been
influenced by Dr Trompetas’ remarks and he would remind the Panel of them.
6.8 The Panel would have to take into account whether the time and cost expended
on such training would be in the interests of the efficiency of services.
1. We carefully considered all of the written and oral evidence. Our remit was to
re-determine Dr Chaudhuri’s application for inclusion in the Respondent’s Performers List, and in so doing, to consider whether or not the Respondent’s decision was reasonable in all the circumstances.
2. We first considered whether the PCT was correct to take account of the
removal of Dr Chaudhuri from the Supplementary List of Newham PCT. We
noted that Regulation 4(4) obliges the performer to disclose in his application
whether he has been removed from, or conditionally included, in any list or
equivalent list kept by a PCT and if so, why and the name of that Trust or
equivalent body. Regulation 6(1) stipulates that one of the grounds on which a
PCT may refuse to include a performer in its performers list is that having
considered the declaration required by regulation 4(4), it considers that he is
unsuitable to be included in such list. Accordingly, we concluded that the PCT
had been entirely correct to consider Dr Chaudhuri’s removal, which was a
matter of fact. However, we also noted the High Court decision in which Mr Justice Mitting had indicated that Dr Chaudhuri’s removal should not count for much in any decision whether or not to include his name in the new Performers Lists and we concluded that this should not be the primary reason, or possibly even a deciding factor, in any decision we made, but that like the PCT, we were obliged to take account of it even if only to then discard it as a ground for our decision.
3. We went on to consider what we believed to be the main problem with Dr
Chaudhuri’s application. The Regulations clearly stipulate that applicants must
provide two satisfactory clinical references relating to two recent posts 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. It was clear to us, and Dr Chaudhuri’s representative also conceded, that Dr Chaudhuri had failed to meet this requirement. We considered it would have been helpful if the PCT’s refusal letter had alerted Dr Chaudhuri to the proviso in the Regulations that where the criteria for clinical references could not be met, applicants should provide a full explanation and details of alternative referees, but we were satisfied that by the time of the appeal Dr Chaudhuri had been given the opportunity to furnish this full explanation and that the further references he provided were either personal or lacking in the necessary detail rather than appropriate clinical references.
4. Accordingly, we consider that the PCT acted appropriately; it properly
considered Dr Chaudhuri’s references, contacted him when there was a problem and indeed went beyond its obligations in offering him possible ways forward with its suggestions for refresher training. We considered it was unfortunate that these suggestions were thwarted for reasons beyond the PCT’s control and we also felt Dr Chaudhuri deserved credit for attempting to comply with the PCT’s suggestions and contacting both the NCAA and the post-graduate Deanery, only to discover that their assessments and courses did not cover someone in his position. We also noted that Dr Chaudhuri tried to organise some refresher training himself at Newham University Hospital, by attending some GP surgery sessions and a few lectures and courses.
5. However, whilst we consider that Dr Chaudhuri must have felt
disheartened and aggrieved by the responses from the NCAA and the Deanery,
we do not consider his own attempts to organise some refresher training,
which appeared to amount to four to six weeks of personally organised CPD,
can be viewed as adequate. In his evidence Dr Russell had pointed out that
as Dr Chaudhuri had been out of practice for a significant period he would need to demonstrate he had taken steps to keep up to date, but we were not persuaded by his evidence that he was sufficiently familiar with current general practice or that he had a satisfactory level of knowledge and experience of Good Medical Practice or of the guidelines issued by NICE, or that he was able to use current computing systems. We also noted he had not undertaken basic life-support training which is a mandatory professional requirement. Furthermore, we were concerned by his responses to many of the medical questions posed to him at the appeal; he appeared not to understand some of the questions and many of his answers were confused and obtuse. He was unable to explain his custom and practice or to clarify how he interfaced with other healthcare workers.
6. Given all of the above, we were not persuaded that Dr Chaudhuri was suitable for unconditional inclusion in the Performers List. However, his representative also asked us to consider his conditional inclusion in the List subject to him satisfactorily completing a Returners Scheme on the basis indicated by Dr Russell in paragraph 5.19 above. Dr Chaudhuri’s representative submitted this would achieve the purpose of the Regulations in that it would both protect the public and support Dr Chaudhuri.
7. We recognised that Dr Chaudhuri is in a “Catch 22” situation. He cannot
undergo a NCAA assessment or undertake a Returners Scheme without being included on a Performers List, but without refresher training he is not presently suitable for inclusion on that List. Dr Russell suggested as the only possible way forward that the PCT could consider a two-stage conditional
inclusion, whereby Dr Chaudhuri could be allowed onto the List to undergo a period of training to be determined by the Deanery, and only upon satisfactory completion of that training would he then be permitted to practise unsupervised. However, in determining if this was the right approach, the PCT submitted the Regulations obliged it to consider whether admittance to the Performers List on this basis would be prejudicial to the efficiency of services.
8. We acknowledged that Dr Chaudhuri is eager to work and willing to learn.
However, we considered his requirements have to be weighed against those of
of people requiring medical services and we were aware that patient safety is
paramount. We were not persuaded by Dr Chaudhuri’s evidence that he was
aware of the basic requirements he has to meet for inclusion on the Performers
List; we felt he had demonstrated a serious lack of insight into the
requirements of modern medical practice and that he did not understand the need for accountability. Whilst his attempts to make his own arrangements for some refresher training were commendable, we did not think they demonstrated any insight into his particular needs and shortcomings.
9. Moreover, we noted that it would be for the Deanery to fund his acceptance onto a Returners Scheme and the PCT would not have any say in the matter. Dr Russell had indicated that such a scheme would be outside the PCT’s control and would require the Deanery to arrange for Dr Chaudhuri to spend several months acting as a GP Registrar under the supervision of a GP trainer, compiling a portfolio of experience and achievement, with his level of competence measured by summative assessment. We also noted that the
indications from the Deanery were not promising; Dr Trompetas had indicated it was reasonable to question at this point whether Dr Chaudhuri should return to clinical practice given the current requirements of the Performance List.
10. Given all of the above, we reluctantly concluded that there is an unbridgeable
gap between what the PCT expects and is obliged to require under the
Regulations and what Dr Chaudhuri can deliver, even if he undertakes further
Training. Accordingly, and bearing in mind the PCT’s wider responsibilities for
the provision of high quality medical services and its duty to protect patients
and the public, we are not persuaded that Dr Chaudhuri should be
conditionally included on the Respondent’s Performers List.
1. For all of the above reasons we find that the Respondent’s refusal to include the
Appellant in its Performers List was justified.
2. Accordingly, we uphold the Respondent’s decision and dismiss the Appellant’s
appeal.
In accordance with Rule 42(5) of the Family Health Services Appeal Authority
(Procedure) Rules 2001, we hereby notify the Appellant that he may have rights
relating to appeals under Section 11 of the Tribunals and Inquiries Act 1992.
……………………………………..
Chairman of the Panel