Case Nos: 11911/13/14





MR P KELLY                        -            CHAIRMAN

DR T I J MANN                   -            PROFESSIONAL MEMBER

MRS J PURKIS                                MEMBER







         (GDC NO: 65625)


























  1. Under r.43 of the FHSAA Procedure Rules each of the three Respondents  have applied to review that part of the panel’s decision not to nationally disqualify the Appellant contained in para.15 of the panel’s decision dated 10th June 2005. Further or in the alternative each apply for a National Disqualification (ND) under 49N(1)(4) of the NHS Act 1977 as amended.




  1.  The panel has power to review and set aside or vary the decision under rule 43 if it is satisfied (in summary):-


(i)     the decision was wrongly made as a result of an error made by the panel;


(ii)    new evidence has become available since the hearing the existence of which could not have been reasonably known of or foreseen;


(iii)  the interests of justice require.



  1. Under 2(i) the Respondents ask for a review on the basis the panel was unduly lenient and therefore wrong not to nationally disqualify considering the nature and degree of the Appellants failings identified in the decision. For the avoidance of doubt we confirm ND was considered but for the reasons stated we declined to do so. Having looked again at that part of the decision we are satisfied that, although the Respondents hold a different view on the outcome, it is a decision which is neither wrong nor perverse and one to which we could properly come after considering the wealth of evidence before us.


  1. Still under 2(i) the Appellants complain they were deprived of the opportunity to be heard on the matter of ND – presumably the “error” necessary to fall within the rule. The power to ND is found in 49N National Health Service Act 1977 as amended. Consideration of ND by the FHSAA can happen in either (but not both) of two ways. Firstly, after hearing an appeal and confirming the first level decision to remove from the list  “….it may also decide to disqualify him from inclusion in………” 49N(1). Secondly, following an application by a PCT after its decision to remove at local level (49N(4). The distinction between the two routes is emphasised by the underlining. It is not for a PCT to apply under the first route (which is the position in the instant case) rather for the FHSAA, after hearing the evidence to itself consider whether the evidence merits consideration of ND. The absence of powers enabling the PCT to apply for ND under route one leads to the view that a PCT’s duty when resisting an appeal is limited to protecting its own borders by justifying the local decision.


  1. The “new evidence” said to found the application under 2(ii) above is not really new at all. It is broadly the same evidence from the Dental Practice Board which the panel ruled inadmissible at the substantive appeal. The evidence was not before the PCT when it made the first level decision and,  we are told, contains material quite different in character from that upon which the PCT relied in making the local decision. It came to light only shortly before the appeal hearing. It seems quite unjust to review our decision by taking into account evidence previously excluded. We have some sympathy with the PCT in that it has relevant information about this practitioner which it cannot put before the FHSAA. That unfortunately is the consequence of decisions made during the proceedings. It will no doubt consider which other body or bodies have an interest in that material.


  1. Having considered the application under rule 43 in the round we cannot identify any matter which would cause us to set aside or vary our decision in the interests of justice or under 2(i) or 2(ii)


  1. The alternative application is for ND under 49N(4) National Health Service Act 1977 as amended.  To an extent this point is covered by 4 above. In the absence of authority on the point the panel’s view, based upon practice of the FHSAA to date, supported by the limited assistance given by paragraph 8 of Dept. of Health guidance to Primary Care Trusts, is that applications under 49N(4) should be made by a PCT following local removal which is no                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             t appealed against and after deciding the facts are sufficiently serious to put before the FHSAA for consideration of a ND. There is no express provision enabling a PCT to make an application after an appeal. Unlike a ND determination after appeal, the FHSAA will have no prior knowledge of the facts or other basis for the local decision to remove, so may require assistance from the PCT – hence the need for a PCT to be heard.  The panel has no jurisdiction to consider an application under 49N(4) following determination of an appeal.


      8.   A party to these proceedings can appeal this decision under Sec11 Tribunals &      Inquiries Act 1992 by lodging notice of appeal in the Royal Courts of Justice, The Strand, London WC2A 2LL within 14 days from receipt of this decision.





DATED this…………day of………………200







Paul Kelly - Chair