1                    This is an appeal pursuant to Regulation 18G(1)(a) of The National Health Service (General Medical Services) Regulations 1998 (as amended) against the refusal by Newham Primary Care Trust to appoint Drs S and M Dhariwal to the practice vacancy at Byron Avenue, London E12.


2                    At the hearing held at Whipps Cross Hospital on the 16 May 2003 Dr Surendra  Dhariwal appeared with Mrs Dixa Vadgama, his secretary.  The PCT appeared through Mr James Slater, Director of Primary Care. 


3                    The right of appeal against practice vacancy decisions is limited to a point of law (Reg. 18G(1)).  It was the Drs Dhariwals case that as a result of one or more of the following complaints and alleged irregularities they had been treated unfairly in the decision to fill the vacancy:


3(a)      The number of members constituting the interview panel was not adequate and its composition failed to comply with the PCT’s terms of reference for the GP Workforce Planning Committee;


3(b)      two members of the interview panel were not completely independent and should have declared an interest;


3(c)      the interview panel should not have allowed Dr B Kohli and his wife, Mrs Paul, to be present during the interview of the successful applicant and that as a result of Dr Kohli’s presence undue influence was brought to bear on the interview panel;


3(d)      bias was demonstrated by two of the interview panel members during the interview;  and


3(e)      the Drs Dhariwal submitted a good business plan and strong CV’s and that the interview panel failed to recognise the full strength of their application against that of the successful applicant and that as a result the interview panel were unjustified in reaching the decision they did.


4                    The appeal panel heard evidence from Dr Surendra Dhariwal and considered the contents of his letter of appeal dated the 10 February 2003 together with accompanying documents.  Mr Slater gave evidence for the PCT and his reply to the appeal dated the 28 February 2003 together with the accompanying bundles were considered.


5(a)      The terms of reference of the GP Workforce Planning Committee provide that the appointments panel should sit with five members, but in this case the committee only consisted of four members.  Dr Surendra Dhariwal was unable to show any statutory or regulatory authority for his argument that there had to be a minimum of five members on the interviewing panel and the appeal panel is not aware of any such duty. It had been the intention of the PCT to have an interview panel consisting of five members.


5(b)      Dr Surendra Dhariwal, one of the appellants, was originally included as a member of the panel (sitting as a local medical committee member), but had to step down when he and Dr Manjula Dhariwal decided to apply for the vacancy at a fairly late stage in the process.


5(c)      The PCT investigated the appointment of a fifth member of the interview panel, but two possible members disbarred themselves because of their close working relationships with both the successful applicant and Dr Surendra Dhariwal.  The secretary of the East London LMC was also approached for advice.  The PCT decided, in view of the difficulties in finding a fifth member and the long delays which would be involved in adjourning the interviews decided to proceed with an interview panel of four.


5(d)      Dr Surendra Dhariwal stated that he did not object to the individual members of the interview panel, but only to the fact that there were four and not five members.


5(e)      The appeal panel find that the PCT in proceeding with an interview panel of four acted reasonably and fairly in all the circumstances.


6(a)      Mr Wayne Farah is a non-executive board member of the PCT and sat as Chairman of the interview panel.  The appellants allege that Mr Wayne Farah is a close friend of Dr B Kohli who is the Chairman of the Newham PCT Executive Committee and who was a member of the successful applicant’s interview team.  Dr Kohli’s presence as a member of that team was not as an applicant for the vacancy.  The appellants also allege that another member of the interview panel Dr Dow Smith was also a personal friend of Dr Kohli. 


6(b)      Whilst the appeal panel is satisfied that both Mr Wayne Farah and Dr Dow Smith knew Dr Kohli, Dr Surendra Dhariwal failed to adduce or point to any cogent evidence that either of them were personal friends of Dr Kohli or that they were in any way less than independent in carrying out their duties as members of the interview panel.  The appeal panel’s view is that there is no evidence of any relationship which would require either Mr Wayne Farah or Dr Dow Smith to have declared an interest.


7(a)      In a letter dated the 7 January 2003 the PCT wrote to all applicants for the vacancy providing details of the members of the interview panel and stating that if applicants were opting for a “group attendance” then the group should be a maximum of four people, each of whom should be either a named partner of the applicant or an employee of the applicant practice.  The successful applicant wrote to the PCT opting for a “group attendance” and asking to be accompanied by Dr Kohli and Dr Kohli’s wife, Mrs Paul.


7(b)            Evidence was given on behalf of the PCT that Dr Kohli was named as a partner in the application.  At the interview it transpired that Dr Kohli was not attending in the capacity of a partner, but that he and his wife were attending on the basis of a proposal by them to provide management services to support the applicant in running his practice if he was appointed to the vacancy.


7(c)            Evidence was given by Mr Slater that this issue was fully considered by the interview panel who took the view that the proposal for external management support was an innovative and collaborative way of working which should be considered and was therefore relevant to the application.  In these circumstances the interview panel decided to allow Dr Kohli and Mrs Paul to attend the interview, but the panel also laid down a clear protocol for the answering of questions on the basis that all questions had to be answered by the applicant first.


7(d)      The appeal panel accepts that it is unfortunate that the interviewing panel’s decision runs contrary to the PCT’s letter of the 7 January 2003, which appears to be a standard letter and which Mr Slater confirmed would be amended in the future.  Having heard the evidence of Mr Slater that the issues were fully considered by the interview panel and, bearing in mind that there was no evidence adduced by Dr Surendra Dhariwal which supported the contention of undue influence, the appeal panel takes the view that the interviewing panel acted properly in allowing Dr Kohli and Mrs Paul to attend the interview.  The appeal panel finds that there is no evidence of undue influence having been exerted by Dr Kohli.


8          Dr Surendra Dhariwal’s evidence that during the interview he was aware of hostile looks from both Mr Wayne Farah and Dr Dow Smith was too vague for the panel to place any reliance on it.


9(a)      The appeal panel made it clear at the outset of the hearing that the appeal was on a point of law and that it was not the purpose of the hearing to decide who should have been appointed to the vacancy and that the appeal panel would not therefore consider the merits of the applications for the vacancy.  However, in the light of the appellants’ allegations that the interview panel failed to recognise the full strengths of their application and that the decision of the interview panel was unjustified the appeal panel considered the notes of the interviewing panel and its observer and heard evidence from both Dr Surendra Dhariwal and Mr Slater.


9(b)      The appeal panel notes that the views of the members of the interview panel disclosed that both the successful applicant and the appellants’ applications were appointable applications, but that the majority of the interviewing committee were of the opinion that the successful applicant’s application was the better one as was his interview.


9(c)      The appeal panel is therefore of the view that the appellants’ application was properly and fairly considered and that there were no grounds for concluding that the decision of the interviewing panel was unjustified or unfair.


10        The appeal panel are unanimous in deciding that the evidence does not disclose any procedural irregularity or unfairness and dismisses the appeal.


The parties have the right to appeal against the decision under Section 11 of the Tribunals and Inquiries Act 1992.


Dated this     4th     day of June 2003.





Trevor Carney Esq –  Chairman


For and with the approval of:-


Dr D Kwan – Professional Member

W G Nelson Esq – Lay Member