Dr D Kwan - Professional Member
Mrs J Alderwick - Member
(Registration Number 2232379)
MEDWAY TEACHING PRIMARY CARE TRUST
1. On 6 October 2005 the Panel decided unanimously that Dr Karwal was unsuitable to be included on the Medway Teaching Primary Care Trust (“the PCT’s”) Performers List and dismissed her appeal in relation to the unsuitability ground. We rejected the removal application by the PCT on the inefficiency ground. We gave detailed reasons in writing for these decisions on 10 October 2005. By Order dated 27 October 2005 we removed Dr Karwal from the Performers List of the PCT.
2. In its skeleton argument dated 29 September 2005 the PCT asked the Panel to make an order for National Disqualification. During the course of argument on 5 October we indicated that we would refuse to deal with that application, if a finding were made against Dr Karwal, for two reasons.
3. First, Dr Karwal would have received the skeleton giving her notice of the application only on 4 October 2005 and, second, it did not appear to us to be sensible or fair to either party to deal with the application before seeing the detailed reasons for any decision to remove her from the Performers List.
4. Accordingly the question of National Disqualification was adjourned for consideration on 27 October 2005 and by a letter dated 6 October 2005 the FHSAA notified Dr Karwal of this and very strongly recommended her to attend.
C. The hearing.
5. The PCT was again represented by Mr Angus Moon. Dr Karwal did not appear, despite further encouragement contained in a letter from the FHSAA dated 20 October 2005, was not represented and made no representations in writing.
6. Mr Moon requested the Panel to make explicit by an order for disposal what was implicit in our Decision dated 10 October 2005: that, after dismissing Dr Karwal’s appeal, the Panel had decided by way of redetermination to remove Dr Karwal from the Performers List of the PCT. We acceded to that request and made the Order which is to be attached to the Decision with Reasons of 10 October 2005.
7. Mr Moon very properly (in the light of doubts previously expressed) raised the question whether the Panel had jurisdiction to make an order for National Disqualification and submitted, following the decision in Chyc -v- Colchester PCT, FHSAA, June 2005, that there was jurisdiction when the Panel has ordered removal of a practitioner after hearing an appeal by way of redetermination. He adopted the reasoning in Chyc and submitted that it was correctly decided with no countervailing authority.
E. PCT’s Submissions
8. On the merits of the application the following submissions were made: the only guidance available on the question whether to impose a National Disqualification was to be found in The Department of Health Primary Medical Performers Lists Guidance at paragraph 40.4:_
“PCTs should recognise the benefits of a national disqualification both for protecting the interests of patients and for saving NHS resources. Unless the grounds for a removal or refusal to admit decision were essentially local, it would be normal to give serious consideration to such an application.”
9. In this case there was nothing “essentially local” in the conduct of Dr Karwal that gave rise to the finding of unsuitability. Indeed the finding in paragraph 93 of the decision of 10 October that “the lack of probity involved in carrying out a sustained campaign of fraud, whether measured against the considerations listed in Regulation 11 (2) of the National Health Service (Performers Lists) Regulations 2004 or on the basis of common sense, is sufficient to render a general practitioner unsuitable for her work as such” was, the PCT said, a clear basis for a decision that Dr Karwal was unsuitable generally (or nationally) to practice as a general medical practitioner.
10. Mr Moon submitted that an order for National Disqualification would be fair, reasonable and proportionate on the basis of that finding and the non-local character of the fraud.
11. We have considered all the circumstances of the case afresh. At the hearing we canvassed with Mr Moon, in Dr Karwal’s voluntary absence, all the matters that could have been put forward in opposition to this application.
12. We have taken into account the serious effect that an order for National Disqualification would have on Dr Karwal. We have sympathy for the position of a person who cannot accept the findings of a court because of an honest belief that it was wrong. It appears to us, however, that Dr Karwal’s behaviour in permitting or acquiescing in the sending of a series of letters of the type described in paragraph 88 of the decision of 10 October 2005 casts further doubt on her suitability to practise general medicine anywhere in the NHS. It would have been open to her to state that she could not accept the accuracy of the judgment against her but to make constructive attempts to move on to regenerate her medical career.
13. We have considered the lapse of time since the campaign of fraud and the judgment of Mackay J. Whilst it is true that no further complaints have been made against Dr Karwal, we cannot ignore her conduct following that judgment to which we allude in the last paragraph.
14. Whilst we do not make an adverse finding on her failure (despite strong and regular encouragement) to attend to give her side of the story, we are left in the position where the only evidence we can take into account is that contained in the written witness statements. We can find nothing in the evidence filed on Dr Karwal’s behalf to suggest that this is a local difficulty (given the uncontested evidence of the narrow ambit of the matters relied upon by the PCT in suspending and removing her from the List – that is to say that we accept that the PCT relied upon the probity issue alone to the exclusion of the alleged “history” between Drs Karwal and Addy and the local NHS institutions) or that she has moved on from the judgment to put herself in a position to rebuild a career in general practice.
15. In circumstances where there has been a serious breach of trust and lack of probity we weigh heavily in the balance the risks to Dr Karwal’s patients, her colleagues in the NHS and the resources of the NHS. This is not to cast doubt on Dr Karwal’s clinical skills or on the financial accounting of her practice. There is no doubt, however, that her conduct during and after the campaign of fraud casts the highest possible doubt over her suitability for any general medical practice.
16. We have also considered whether, in lay terms, Dr Karwal has been “punished enough”. It seems to us that such an argument misunderstands the function of the Panel which is not to punish practitioners but to assist in regulating Performers Lists for the better provision of primary healthcare services.
17. We find that, having decided to remove Dr Karwal from the PCT’s Performers List, we have jurisdiction under section 49N (1) of the National Health Service Act 1977 to make an order for National Disqualification.
18. In the light of the considerations set out above we find it would be fair, reasonable and proportionate to make such an Order.
19. We therefore direct that Dr Karwal shall be disqualified from inclusion in any medical performers list as is described or referred to in section 49N(1) of the Act. We further direct that a copy of our decision shall be sent to the several bodies listed in Rule 47(1) of the Rules.
20. In accordance with Rule 42 (5) of the Rules we hereby notify the parties to these proceedings that they can appeal against this decision under Section 11 of the 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.
Chair of Appeal Panel
31 October 2005