THE FAMILY HEALTH SERVICE APPEAL AUTHORITY

Case No: 11939

 

Sitting at Napier House, 24 High Holburn, London

21st October 2005

Mr Christopher Limb, Chairman

Dr S Sharma, Professional Member

Mrs J Purkis, Member

 

BETWEEN:

DR A O OLAYEMI

(GMC Reg No: 3115228)

Appellant

and

CITYY AND HACKNEY TEACHING PCT

Respondent

DECISION

 

Introduction

  1. Dr Olayemi is a General Medical Practitioner and applied to join the Respondentís Performers List.Such was initially considered at a meeting on 14th June 2005 and refused on the basis that there was not sufficient information of her qualifications and training.Fuller particulars are given in the Decision letter of 23rd June 2005.Dr Olayemi subsequently provided to the Respondent her Certificate of Acquired Rights which was dated 10th March 2005.In what we understand to be the standard format the issuing Authority, the Joint Committee on Post Graduate Training for General Practice, certified that the Appellant held an acquired right to practice in the Social Security system of the United Kingdom as a General Medical Practitioner but also bore the note that in order to practice as a principal in the National Health Service of the United Kingdom she needed to satisfy the National Health Service (Vocational Training for General Medical Practice) Regulations 1997.Before such certificate was further considered by the Respondent the Appellant (acting within the time period for appeal) indicated her intention to appeal against the refusal of her application.The Respondent further considered the matter having received the Certificate of Acquired Rights and notified the Appellant by letter of 26th August 2005 that they conditionally accepted the Appellant onto their Performers List.The condition was that she work only in the capacity of a locum in a practice where there is support from other general practitioners.The Appellant thereafter confirmed that she wished to appeal the imposition of the condition although practising subject to such condition whilst the appeal was processed.Such appeal was notified by letter of 19th September 2005.

 

  1. Acting pursuant to its inherent powers this Panel ordered on 23rd September 2005 that the appeals notified by letters of 17th July 2005 and 19th September 2005 should be heard together and also ordered that the Respondent should confirm whether it intended to rely upon any matter or evidence other than the lack of certificate or other evidence of successful completion of vocational training.It was also ordered that upon receipt of such notification from the Respondent the Appellant should either serve an appropriate certificate or other written evidence in relation to vocational training or give an outline of any other evidence relied upon in relation to the completion of vocational training or otherwise indicate her response to any additional matters which had been identified by the Respondent. By letter of 6th October 2005 the Respondent confirmed that it intended to rely only upon matters and evidence relating to the lack of a certificate or other evidence relating to the completion of the vocational training.The Appellant did not comply with the Order.

 

  1. At the hearing of this matter on 21st October 2005 we received representations from Caroline Gilmartin, an employee of the Respondent, but the Appellant did not attend. At a time when the hearing had already commenced, it is now understood that the Appellant telephoned the offices of the FHSAA.She indicated that she had sent a letter on Monday (four days before hearing) indicating that she had the relevant certificate and was withdrawing her appeal.She was informed that the FHSAA had not received any such letter and was asked if she could send a copy immediately and that such would be forwarded to us.Dr Olayemi in fact faxed a letter dated 21st October 2005 which referred to having sent written notification indicating that she did not wish the appeal to proceed but also indicating that she understood that the Respondent was willing to admit her to the Performers List.We received such letter after the hearing had been completed and we had announced our decision.

 

  1. Apart from the documents within the paginated bundle of papers available both to the Panel and to the parties we heard submissions from Caroline Gilmartin.The essence of such submissions was that the Respondent had made numerous efforts to communicate with the Appellant and had informed her that as and when they saw a certificate confirming completion of vocational training or other evidence of such training her application would be reconsidered and was likely to be accepted for inclusion upon the Performers List without condition. Although Dr Olayemi had orally informed the Respondent that she now had such certificate, the Respondent had not been sent such certificate or otherwise seen it or a copy of it.

 

  1. We were satisfied that Dr Olayemi was aware of the written evidence before the Tribunal and fully aware of her entitlement to attend and address the Panel and if she so wished to give any further evidence to the Panel.

 

The law

  1. The Family Health Services Appeal Authority (Procedure) Rules 2001 make provision for the conduct of appeals such as the present.In particular it may be noted that pursuant to Regulations 32 and 36 an appeal may be dismissed in whole or in part if directions are not complied with but only if the person who does not comply with such direction has been given an opportunity to show cause why the appeal should not be dismissed.We have not acted pursuant to such powers.It may also be noted that pursuant to Regulation 40 if a party fails to attend or be represented at a hearing of which he/she has been duly notified, the Panel may, unless satisfied there is a reasonable excuse for such absence, hear and determine the appeal in that partyís absence.Being satisfied by reason of the correspondence within the bundle that the Appellant was aware of the hearing and had given no reason for her non-attendance, we proceeded to hear the appeal in her absence.

 

  1. Regulation 4 of the NHS (Performers List) Regulations 2004 makes provision as to the information and evidence required upon an application for inclusion in the Performers List.Such includes details of professional experience.Paragraph 6 indicates that an application may be refused (inter alia) on the grounds of the applicant being unsuitable to be included.Further provisions are contained in Regulations 23 and 24.Regulation 23 requires (inter alia) provision by the Applicant of details of medical qualification and professional experience.Regulation 24 provides that an application may be refused if having checked information provided pursuant to Regulation 23 the applicant is considered unsuitable.

 

  1. We considered as a matter of law that it was not only within the legal rights of the Respondent to consider evidence in relation to vocational training but entirely reasonable and responsible that they should consider evidence in relation to such matters and that it was a fully reasonable approach in principle to consider that in the absence of any evidence of vocational training by an applicant who is not otherwise able to demonstrate appropriate experience and training, the Trust acted reasonably in refusing the application.

 

The evidence

  1. The written evidence available to us demonstrated that the applicant initially failed to produce a Certificate of Acquired Rights and subsequently did not produce any written evidence of vocational training.There is nothing within any material available to us to cause doubt as to such matters.The factual basis before the Panel was therefore that there was proper evidence of a Certificate of Acquired Rights but no evidence of vocational training having been undertaken.

 

  1. The Appellant has not provided any evidence to the Panel of her vocational training.We are satisfied from the written evidence and from the submissions of the Trustís representative at the hearing that representatives of the Trust have not seen any formal certificate or evidence of vocational training even though being given oral indication that there has been such.

 

  1. Upon the evidence available to us we are satisfied on the balance of probabilities that the Appellant has provided neither to the Respondent nor to this Panel any satisfactory evidence of vocational training.We are satisfied that the Respondent is properly concerned to have evidence of vocational training prior to inclusion of an applicant upon the Performerís List.

 

  1. In the foregoing circumstances we dismiss the appeal.

 

  1. We wish to add (as briefly indicated orally at the end of the hearing) that we would not wish our present finding to unduly influence or harm any subsequent application by Dr Olayemi as and when proper evidence of vocational training is provided. We also wish to add that we are very concerned that the Appellant, Dr Olayemi, appears not to have expended any great effort in clarifying her vocational training.We find it unlikely that with reasonable effort she would not be able to secure formal evidence or certification of training if she has undertaken such.Her conduct of her appeal and her failure to respond to the previous direction of this Panel tend to indicate a rather over-relaxed attitude to what we consider to be important matters.A substantial amount of time and expenditure both on the part of the Respondent and of this Panel have resulted.

 

  1. The parties are reminded that they have rights of appeal pursuant to Section 11 of the Tribunals and Enquiries Act 1992.

 

 

 

CHRISTOPHER LIMB

Chairman Ė November 2005