IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY

 

 

CASE No:††††††††††† 11557

 

 

Miss M. E. Lewis - Chair

Dr P. M. Wray - Professional Member

Mrs I. A. Dale - Lay Member

 

Appeal Heard on 2 March 2005 at Care Standards Tribunal London.

 

 

 

MR S CRAMP

Appellant

 

AND

 

NORWICH PRIMARY CARE TRUST

Respondent

 

 

Appeal by the Appellant under Regulation sub paragraphs (a) and (e) of Regulation ZA (1) of the National Health Services (General Dental Services) Regulations 1992 as amended by the National Health Services (General Dental Services) Amendment Regulations (Ao 6) Regulations 2001 to the Family Health Services Appeal Authority (FHSAA) against the Respondent's decision to refuse to include him on its dental list

 

Appeal Dismissed

 

 

DECISION and REASONS

 

 

 

1.                  The Persons present at the hearing were: -

 

Mr Cramp - Appellant

Mr R Creamer - Appellant's solicitor

Mr M Payne Ė Representative. Norwich PCT

 

 

History of the Appellant's Appeal

 

2.                  By letter dated 3 November 2004, Norwich Primary Care Trust (PCT) informed the Appellant that his application for inclusion in the Norwich PCT dental list had been refused. There were concerns about his performance which included a pattern of complaints which related to his clinical performance, his provision of private treatment and charging private fees to NHS patients without their consent and his manner and attitude towards patients. Mr. Cramp included in his application as he was required to do, details of an ongoing Performance Assessment which was being carried out by Eastern NHS Support Services, which Mr. Cramp had entered into voluntarily in an effort to address concerns which had been raised by the neighbouring North Norfolk PCT.The PCT were aware that he was undergoing a voluntary assessment support process, which at that point was not completed.

 

3.                  On 26 November 2004 the Appellant's solicitors instructed by Dental Protection Limited to assist Mr Cramp in relation to the appeal, wrote to the FHSAA indicating that he wished to appeal the Respondent's decision.

 

4.                  By further letter dated 14 December 2004, a copy of the Assessor's report commissioned by the Norfolk Assessment Support Panel was forwarded to the FHSAA.

 

 

The Appeal

 

Jurisdiction

 

The National Health Service (General Dental Services) Regulations 1992 as amended by the National Health Service (General Dental Services) Amendment (No 6) Regulation 2001 and the National Health Service (General Dental Services Amendment Regulations 2002)

 

5 Za (i)††††††††††† The grounds on which a Health Authority may refuse to include a dentist in the dental list under Regulation 5 are-

 

(a)                                      That they have considered the declaration required by paragraph 5 (b) 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; and Ö

 

(e)                                      They consider that there are grounds to consider that admitting the dentist to the list would be prejudicial to the efficiency of the service, which he would undertake.

 

 

5.                  The same regulations state:

 

5 Zc†††† (i)††††††††††† A dentist may appeal to the FHSAA against a decision of the PCT to refuse to include his name in a list pursuant to Regulation f (i).

(ii)               Such an appeal shall be by way of re-determination.

 

 

(9)†††††† On appeal the FHSAA may make any decision, which the Health Authority could have made.

 

6.                  The advice from the Department of Health is that a dentist cannot be conditionally included in a performance list if he does not satisfy the 'suitability test'. There are no degrees of suitability. That does not apply to the 'efficiency' test, which we must consider separately but we were not invited to consider this possibility.

 

 

The Evidence:

 

7.                  We have considered all the documents submitted in the bundle. The only documents submitted by the Appellant were the Notice of Appeal and the Assessorsí report, which his case primarilyturned on. The essential ground of Mr Cramp's appeal is that he entered into a Performance Assessment voluntarily in an effort to address the concerns, which had been raised by the North Norfolk PCT. The Performance Review was carried out in two parts to address protocols for informing patients about NHS/ Private options and how consent for private treatment was obtained, his clinical professional development and Mr Cramp's arrangements for responding to complaints in accordance with the NHS Complaints Procedure. The second part of the review was a meeting between Mr Cramp and members of the Assessment Review Panel at Mr Cramp's surgery to review and observe Mr Cramp's provision of crowns, diagnostic and treatment planning skills and his arrangements for conducting audits of his work in compliance with clinical governance

 

8.                  The Respondentís essential case was that Mr. Cramp should re-apply to be included on the list once he had completed the further training recommended by the Assessment and been reassessed. There was a long history of concern about Mr. Cramp. We have considered:-

 

Appendix A: An anonymised summary of complaints dealt with by the former Norfolk Health Authority and Eastern Support Services (who deal with complaints on behalf of the six PCTs in Norfolk) between April 1996 and January 2004.

 

Appendix B: Complaints to the Jones and Allen Dental Practice between 18.9.03 and 27.9.03. (the Appellant was an Associate there).

 

Appendix C: Complaintof 28.11 04 currently being investigated.

 

Appendix D: Copy correspondence re: Dental Inspection programme of Mr. Crampís two practices at Aylsham and Cromer 1995/6.

 

9.                  Further documents were submitted at the hearing. Mr Cramp thought his referees had not been consulted by the PCT. Mr. Payne produced the two pro-forma referees to contradict this assertion. Further, Mr Payne submitted correspondence from the North Norfolk PCT and the minutes of an Assessment Support Panel meeting on 18 November 2004 to explain why North Norwich PCT were taking a supportive role, whilst Norwich PCT were refusing to admit him to the list.

 

The Facts:

 

10.             At our invitation Mr Cramp set out his professional background and the chronology of his practice. He qualified in 1973. In 1976 he bought a practice in Aylesham, Norfolk that he practised from as a sole practitioner. In 1987/1988 he bought a further practice at Cromer, which he also ran single handed, as he was not able to find a suitable assistant. We read the documents at Annex D of the Respondent's bundle in relation to an inspection carried out at those premises from 1995 to 1997. In response to questions from us, Mr Cramp confirmed that between his two practices at Aylesham and Cromer he had had 3,000 patients.He sold the practice in November 2002 to Mr. Enslin who was one of his referees for this application to be included on the Dental Listfor Norwich Primary Care Trust. He continued to work for him as an Associate. He also worked part time in Mr. Jonesís practice at Great Yarmouth. It was during this time that the complaints set out at Appendix B occurred. We read the letter dated 16th October 2003 from Terence Jones, the owner of the practice to the FHSA. His view was that Mr Cramp was unfit to treat patients without re-education, supervision or both. The principle complaint appeared to be that of extreme rudeness/thoughtlessness. He went on to say 'He has on many occasions commenced private treatment without prior discussion of fees involved. The sexual harassment incident is altogether a more serious matter.'None of those matters were expanded on before us.

 

11.             Mr. Cramp currently works 2 days per week at the Cromer practice, which is under the area of North Norfolk PCT and in Mr. Burkettís practice in Norwich 3 days per week. In this location, he is employed as an assistant dentist to Mr R Burkett; Mr Cramp does not have his own contract number with Norwich PCT and Mr Burkett remains responsible for supervision and any errors or omissions which may occur. In September 2004 Mr. Cramp purchased a practice at Bow Thorpe where he has been working two mornings a week seeing patients under a private contract but would like to be able to treat patients on the NHS, hence the current application.He would like to continue to do NHS work but allowing at least half an hour per patient and to work in a less rushed way. He said he would like to have help but was not specific about what that would be.

 

 

12.†††††† There was much that was positive in the assessment. The assessors' clinical concerns centred on Mr Cramp's lack of taking radiographs prior to preparation of crowns. Orally, before us, Mr Cramp accepted that he should take more radiographs. There was further concern about Mr Cramp's patients' notes being too brief and incomplete. Again, he conceded orally that he needed to make better notes. The assessors were concerned that given the past complaints, Mr Cramp had rested both hands on the shoulders of one female patient in her late 20's or early 30's whilst speaking to her from a very close face to face position. He explained to us that he had known the patient in question since she was a very small child. Having practised in the same area for many years it is not uncommon for him to know patients and their families well. The assessors noted that at no time did the patient seem unhappy, nervous or intimidated.Mr Cramp confirmed to us that he was aware, as the assessors had noted that another patient could misinterpret this. There was also concern that he had repeated a joke about losing weight saying it was due to employing 'a sex therapist called Twiggy'. He explained that he has reduced in weight from 25 to 12 stone and is often asked about this. He sometimes becomes a little tired of explaining and repeats this joke.

He indicated his sense of humour was bouncy but it was never intended to be offensive Again, he accepted that with the wrong patient it might be inappropriate. It was noted that the elderly patient in question took it in good part. Mr Cramp accepted that it was inappropriate to place instruments on a patient's chest. He was aware that he should use the bracket table but was clear that he did not think he could always avoid this and repeated to us that he felt all dentists did sometimes rest instruments on patientís chests.

 

13.†††††† The assessment was concerned that Mr Cramp's single-handed status could not explain the volume of complaints. He had had nine complaints, one including an aspect of rudeness, four of inappropriate conduct, five about private/NHS interface and two about the quality of his work. These were set out in Appendix A to the Respondent's documents at pages 29 to 33. Mr Creamer indicated that he did not intend to refer to these complaints, as they were historic. We invited him to lead evidence on these cases, not as to the truth or otherwise of them but as to why Mr Cramp was unusual in having so many complaints against him.

 

14.†††††† Mr. Cramp accepted that 19 complaints over a 7-year period is what was in excess of what would usually be expected. We learned that the average per year for a Dental practitioner would be 2.Mr Payne explained that whilst the Norfolk area is now broken down into a number of PCTs, all subscribe to a common complaints procedure. There is a group of six Norfolk PCTs comprising a group of 250 practitioners. The National Health Service Complaints Procedure requires that complaints will be initially investigated 'in house' Mr Cramp told us that complaint D034/97 was settled without admission of liability. It was therefore incorrect to state that the patient won a case for negligence. In respect of complaint D0035/2003 that the matter was referred to the General Dental Council in June 2004 because there was delay in forwarding the refund. Mr Cramp told us that this had now been completed but the panel were not shown written evidence to confirm this.

 

 

15.†††††† The assessment recommended that Mr Cramp's professional development needed to be targeted to include inter-personal relationship skills, awareness of sexual harassment, inappropriate behaviour and diversity issues. (He had made a joke involving racial stereotypes in front of the assessors). It was recommended that Mr Cramp attended appropriate training courses in communication skills, diversity awareness and confidentiality issues. It was recommended that he attended a local study group to alleviate the problems he attributed to his single-handed status. It was further recommended at paragraph 7 that all training courses should be approved by the PCT and that the PCT should appoint a mentor from the FGDP or LDC to monitor Mr Cramp's development over the next year.

 

16.†††††† Mr Cramp confirmed that since his suspension he has been looking for the right course. He confirmed that there was a course on personal relations available in March, April or June, but was unable to shown written details of the course content. He was also vague about its location.

 

17.†††††† Mr. Cramp had found working with Mr Burkett very helpful but there was no mentor in place. Mr Cramp had not been approached by the PCT with any proposals. He had found the Medical Protection Society a helpful source of advice but he had not actively pursued the placement of this mentor or adviser.

 

18.†††††† It was an essential aspect of the Respondent's case that Mr Cramp had not made changes to his practice arrangements because a further complaint (Appendix C) had been received which related to matters previously giving concern about his performance. The PCT had not been concerned about the clinical aspects of that case but that they had not received all the receipts and notes. Mr Cramp said that the patient concerned had been a patient of the previous dentist. He had put in a temporary filling following the practice of the previous dentist although he had personal reservations. When cross-examined, Mr Cramp agreed that he had provided partial records but that had needed a reminder t be sent. Mr Payne denied that he had encouraged the complainant to seek a second opinion. He suggested to Mr. Cramp that the complaint having been under scrutiny, he would have expected him to do more to sort out the issues. Mr Cramp said he had relied upon Mr Burkett's guidance that expected the Practice Manager to deal with it.

 

19.†††††† Mr Cramp explained that the NHS charge (page 40) included postage. It was therefore not an accurate reflection of the NHS allowance. Although a small sum was involved, it should have been detailed as a private cost. It was therefore an inaccurate FP17 DC form

 

 

Closing Statements

 

20.†††††† Mr Payne submitted there was no inconsistency in North Norfolk PCT accepting or retaining Mr Cramp on their list. Mr Cramp had shown sufficient evidence that he had remedied the recommendations of the assessment. However, the PCT would welcome a further application from him in six months.

 

21.†††††† Mr Creamer pointed out that Mr Cramp was a dentist with 32 years post qualification experience. He had fully co-operated with the assessment procedure. He would accept help. The assessment report had no concerns regarding his clinical ability. Mr Cramp accepted that he needed to improve and routinely take radiographs and fuller records. His principal was dealing with the complaint. The Respondent's case was based on historic evidence.

 

 

 

Conclusions and Reasons

 

22.†††††† In coming to our conclusions we took full account of the fact that Mr Cramp is a practitioner with 32 years experience. There were no major questions about his clinical abilities. However, we were concerned that such an experienced practitioner was not carrying out radiographs on a regular basis and that he was still unclear about the responsibilities and National Health Service protocols when handling complaints. The panel felt that he should have been able to accurately describe the manner and timescale of the complaints procedure. He should never rest instruments on a patientís chest.

 

23.†††††† We accept that there has been a clear improvement, based on the assessment on the NHS/Private interface. Mr Cramp has accepted the need to and made an effort to better inform patients of the options, so that they can make an informed choice.

 

24.†††††† We reminded ourselves that the complaint set out at Appendix C is still pending. The bulk of the complaints are now historic. However we were concerned about the number of complaints, their complexity and the diverse areas they covered. We were not satisfied that Mr Cramp had learnt from these complaints and made real efforts to modify his practice. Although the panel felt that there were some improvements, it was of concern that these were in the complaint handling, as opposed to the reduction and prevention of actions which would lead to a patient being dissatisfied with an aspect of Mr Crampís care. We were concerned that despite the history, that the assessment has only just been completed and this appeal was pending that Mr. Cramp was not more proactive in making sure all the notes went before the PCT at the first opportunity.If he is right in his assertion that this would support his case that the patient was fully informed about the treatment and the cost, then the notes should support this. The current complaint was dated November 2004 and received by Norwich PCT at the end of December. This was subsequently forwarded to Mr Cramp and Mr Burkett. Mr Cramp was unable to confirm that the matter had been dealt with and thought he may later contact the MDU for advice. He was unsure of the details. In view of the history of problems experienced, the panel thought that Mr Cramp should have sought immediate advice from his professional indemnity insurers to respond to the complainant as soon as possible, nearly three months having elapsed before a definititive reply may have been to the patient

.

25††††††† Mr. Crampís current intention of building up his sole practice and trying to work in a less hurried manner did not seem achievable nor did it address the concerns identified as ongoing by the assessment. It would not provide him with the support the assessment highlighted that he requires. That is itself distinguishes this application to this PCT, as opposed to North Norfolk PCT in whose area he is working in as an associate in a familiar environment, albeit on his own as an assistant, but where he has the opportunity to discuss problems encountered with his principal, Mr Burkett. He wants to practice alone when he had got into difficulties in the past as a sole practitioner, yet says that he has learnt from past problems and mistakes.

 

26.†††††† Not only would he be working alone, but there is still no mentor in place. Mr Burkett, his other referee marked him as acceptable on all matters, although this was only a pro-forma document and simply asked the confidential reference to state whether the practice was acceptable. He did not include any additional information. More particularly, we had no evidence that Mr Burkett would be prepared to take on some supervisory or mentoring role to Mr Cramp.One reference was incomplete in regard to knowledge of clinical ability and outlined the difficulties Mr Cramp had when working as part of a dental team. It was a cause for concernto the panel that in after many years practising in the Norfolk area , Mr Cramp was unable to draw upon greater professional affiliation for support

 

27.†††††† The assessment clearly highlighted the need for Mr Cramp's professional development to include interpersonal relationship skills and appropriate training courses and communication skills. Given Mr Cramp's personality, age and length of time in sole practice it may be that these are not matters that would be easily remedied. However, he could be more closely supervised if he was part of a team; this will not be his intended mode of practice.

 

28.†††††† Taking a range of factors into account we therefore conclude that Mr Cramp is not suitable at this stage to be included on the dental list of Norwich PCT and that his inclusion would be prejudicial to the efficiency of the service that he would provide. However, if he were able to make progress then we would hope that he would reapply.In doing so, the panel felt to support a future application, written evidence should be supplied including detailed references from the mentors, adviser and principal dentists with whom Mr Cramp was interacting and supporting documentation that the areas at issue have been addressed by continued professional development and course certification. Additionally, a period of careful clinical practice in all areas, which resulted in no complaints being recorded against Mr Cramp would be most beneficial in supporting his application to be included in the dental list of Norwich PCT.

 

29.†††††† 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.

 

 

Dated this†††††††† day of†††††††††††††††††††††††† 2005

 

 

Melanie Lewis

 

Chair