IN THE FAMILY HEALTH SERVICE APPEAL AUTHORITY

 

Case No:††††††††††† 10937

Between:†††††

 

 

 

 

DR S. HAMEED

 

Appellant

 

 

And

 

 

REDBRIDGE PRIMARY CARE TRUST

 

Respondent

 

 

 

 

 

 

DECISION WITH REASONS

 

 

 

1.                           This is an appeal pursuant to Regulation 18 G (1) (a) of The National Health Service (General Medical Services) Regulations 1998 (as amended) against the refusal of Redbridge Primary Care Trust to appoint Dr Hameed to the sole practice vacancy at 2 Roding Lane North, Woodford Green, Essex, IG8 8NR.

 

2.                           At the hearing held on 18 March 2004, Dr Hameed represented himself. He called no witnesses. The PCT appeared through Mr James Reynolds, Solicitor. He called the following as witnesses:-

 

(i)                                         Thirza Sawtell, director of Primary Care and Community DevelopmentRedbridge PCT.

(ii)                                       Kofi Agbolegbe, non-executive director of Redbridge PCT who sat on the interviewing panel as a lay member.

(iii)                                     Dr David Shubhaker, principal general medical practitioner and secretary of the Local Medical Committee (LMC).

(iv)                                     Dr Ramesh Bakhai, principal general medical practitioner. Member of the PCT Professional Executive Committee (PEC) and a member of the PCTísWorkforce Development Group.

 

All sat on the interviewing panel that made the decision appealed against.

 

3.                           The right of appeal against practice vacancies decisions are limited to a point of law. (Regulation 18 G (1)). Dr Hameed filed his original grounds of appeal on 5 December 2003. By letter dated 21 February 2004 Dr Hameed purported to advance further grounds of appeal. The Panel did not give leave for these grounds to be filed as they were not clear and mixed further grounds of appeal with points he wished to raise with the Respondent or evidence he wished to put forward. He raised other challenges to the decision, but it was not clear to the Panel whether or not he intended to pursue these. A Directionwas issued on 7 March 2003 that Dr. Hameedfile further grounds of appeal, in order the clarify the situation, which he duly did and these have been considered by the Panel.Exceptionally, at the hearing, the Panelallowed him to further amend his grounds of appeal.

 

 

4.                           The Panel, whilst anxious to afford Dr Hameed the very fullest opportunity as a litigant in person to state his case, have been conscious that this has meant the Respondent has had to respond on short notice. Ithas meant that the Respondentís evidence has been filed shortly before the hearing. Nevertheless the Panel, whilst asked by the Respondent to consider using the substantive hearing for a Directions Appointment, declined to do so because delay would prejudice the parties with an interest in the outcome of the decision, including the successful applicant to the vacancy, DrSundaram. The Panel allowed the hearing to be conducted in a flexible manner with opportunities for short adjournments as necessary so that neither party was disadvantaged.

 

5.                           In summary, Dr Hameed alleges that the following procedural irregularities, bias and unfairness led to the decision being unlawful:-

 

 

A†††††††† Dr Bakhai and Dr Shubhaker, who were less qualified than the Appellant, asked him inappropriate clinical questions.

 

B†††††††† The interviewing process was a 'sham' as they had decided before it took place to appoint Dr Sundaram.

 

C†††††††† The Interview Panel were biased. The GP members were close friends of Dr Sundaram and went out with him every Monday night. The doctors discriminated against the Appellant who was a Muslim from Pakistan whereas the successful applicant was an Indian Hindu like them. Mr Kofi Agbolegbe (lay member) was a 'yes man' and had not properly performed his function to ensure fairness.

 

D†††††††† The decision was unfair as the Appellant's CV, business plan and references were better than the successful candidate's. He had a better understanding of the local population, Disability Discrimination Act, new General Medical Services Contract and Mental Health Services NSF Contract.

 

6.                           Orally and by letter at the hearing, the Appellant further alleged Dr Sundaramís business plan, which the witnesses confirmed as being included in their papers at the time of the interview, had been subsequently forged by persons he was unable to identify, either acting alone or with the connivance and agreement of Dr Sundaram. He suggested this had happened once the PCT had received his notice of appeal.

 

 

7.                           Dr Hameed and Dr Sundaram were the only two candidates interviewed. Theother candidate, ajob share,withdrew. Dr Shubhaker did not recall that he was part of the short listing panel, although the other witnesses said that he was. They all agree that it was a very short meeting, lasting no more than 20 minutes, as there were few candidates to consider, and all were invited to attend an interview.

 

 

8.                           An issue arose in correspondence as to whether Dr Hameed had carried out medication reviews. That issue fell away. Mr Reynolds clarified the position of the PCT.Dr Hameed may have carried out such duties in the course of his work but he was not a locum appointed specifically to carry out that work, in a practice where it was accepted the practitioner had been suspended and was being investigated for matters unrelated to this appeal.

 

 

9.                           The Panel heard from Dr Hameed who had the opportunity to question each of the witnesses. Because of the serious nature of the allegations made, the Panel required each of the witnesses to affirm or give evidence on oath, which they did.The Panel paid particular attention to matters raised in correspondence by Dr Hameed, which whilst not appropriate to the grounds of appeal, nevertheless raised points or matters of fact which he wished to put forward to advance his case.

 

 

10.†††††† The Panel made it plain that it was not its function to decide the merits of the applications for the vacancy.

 

 

Conclusions and reasons:-

 

 

11. After considering all the evidence, both written and oral and taking into account submissions the Panel came to the following conclusions:-

 

(I)†††††††† There was no issue concerning Dr Hameedís qualifications for the post. That is one of the reasons why he was short listed.

 

 

(2)††††† Dr. Hameed believed that because his qualifications were obtained in the United Kingdom they were superior to those of Dr. Shubaker and Dr. Bakhai who qualified in India. The level of, and where those qualifications were obtained is not relevant to whether or not they acted fairly or with bias. In any event, they were appointed because of their experience in the local area.†† Dr Shubhaker was appointed to the panel because of his role on the LMC. Dr Bakhai was appointed because of his role in on the PEC and as a member of the Work Force Development Group.

 

 

(3)††††††††††† The Panel accepts that it would be usual for medical questions to be asked for a vacancy of this sort. We accept that the question asked was not to test the Appellant's clinical knowledge as such but his management of a case, particularly as a sole practitioner. Other than a suspicion by Dr. Hameed, we can find no basis for his allegation that this question was somehow leaked by the interviewing panel to give Dr. Sundaram an unfair advantage.

 

 

(4) ††††††††††† Dr. Hameed further alleged that both Dr Shubhaker and Dr Bakhai favoured Dr Sundaram because of his ethnicity and religion. We find no basis for that allegation, which we regard as a very serious one. In any event, it transpired that Dr Shubhaker is a Christian.

 

 

(5)††††††††††† Both Dr Shubhaker and Dr Bakhai accepted that they had met Dr Sundaram at meetings held for local GP's which might also have a social aspect. It is a fact that such meetings formal or otherwise are commonamongstGP's operating within a PCT. Dr Hameed's complaint appeared to be that he was not invited to these meetings, although he put forward no evidence of his actively having sought to do so. Such professional meetings do not equate to a social friendship, which may indeed compromise the independence and fairness of an appointment committee. The line may sometimes be a fine one but we are clear that the Appellant has established no evidence that either Dr Shubhaker or Dr Bakhai had any relationship with Dr Sundaram which either lead to bias or might give the appearance of bias.

 

 

(6)††††† We do not find any evidence for the allegation that Dr. Sundaram had an unfair advantage as the current locum at the vacant surgery. It is a fact that many PCTs, including Redbridge on the evidence we were given, do not favour allowing sole practices to continue. Whilst there was a delay of 6 months before the position was advertised, we accept that there had been a consultation process with other practices in the area and find no evidence that the delay was deliberately set up by unidentified persons in the PCT in order to give Dr. Sundaram an unfair advantage.

 

(7) ††††††††††† It is not the function of the Panel to decide whether Dr Hameed's business plan was in fact better. The interviewing panel were of the unanimous view that his proposal was unrealistic. Dr Hameed took issue with this and emphasised that he had been prepared to fund refurbishments to a cost of approximately £100,000 himself. We accept the panel's decision was not based on his ability to gain planning permission or fund refurbishments, but whether the proposals were proportionate to the income the practice would be able to generate, given its small patient group.

 

(8)††††††††††† More particularly, we can find no evidence at all that Dr Sundaram's business plan was forged. This is a very serious allegation and for it to be established we would have to find clear evidence commensurate with the seriousness of that allegation. We find none. The form summarising the short listing panelís findings lists it as having being received at that stage in the process. All the witnesses recalled that it was in their papers at the interviewing stage. We do not accept that the fact that Dr Sundaram only presented his plan for five minutes, would be a sound basis for concluding that four professional and experienced members of an interviewing panel either jointly or separately engaged in forgery once the appeal had been received because their egos would not allow their decision to be found to be wrong.

 

 

(9)†††††† Dr Hameed asked to have further time to make a careful comparison between the hand written notes each member on the interview panel had prepared and the summary of those notes prepared by Eirfan Hussain, Medical Services Officer for the purposes of this appeal. We refused that application because it would have deprived Mr Reynolds of an opportunity to respond and in any event we were in a position ourselves to make a comparison and form a view as to whether the summary was a fair reflection of the notes. We clarified that the hand written notes were not verbatim and were merely notes to assist the panel in their deliberations. It was on the basis of the handwritten notes that they made their decision. Having compared both the hand written notes and the typewritten summary, we are satisfied that there is no substantial imbalance and any omissions in the typewritten summary are relatively minor and do not cause us to conclude that either the interviewing panel failed to give weight or sufficient weight to the overall quality of Dr Hameed's application.

 

(10) ††††††††††† Dr Hameed's evidence that the panel's body language somehow betrayed that it was their intention to appoint Dr Sundaram regardless is too vague for the Panel to place any reliance upon. Both candidates were asked the same questions and the typewritten summary recorded that both candidates gave equal responses to 'several questions' but Dr Sundaram provided better, more in-depth responses to the majority of the questions. All of the witnesses felt that his approach on a number of matters was more realistic.

 

 

12.†††††† The Appeal Panel is therefore of the view that the Appellant's application was properly and fairly considered and that there were no grounds for concluding the decision of the interviewing panel was unjustified or unfair.

 

13.†††††† The Appeal Panel are unanimous in deciding that the evidence does not disclose any procedural irregularity or unfairness and dismisses the appeal.

 

14.†††††† Any parties to proceedings have the right to appeal this decision under and by virtue of Section 11 Tribunals and Inquiries Act 1992.

 

 

 

Dated this 24thday of March2004.

 

 

 

 

Melanie Lewis

Chairman for and with the approval of:-

 

Dr D Kwan

Professional Member

 

Mrs L Bromley

Lay Member