Dr D Kwan - Professional Member
Mrs J Alderwick - Member
(Registration Number 2232379)
MEDWAY TEACHING PRIMARY CARE TRUST
1. On 25 June 2004 in Case No HO02X00862 in the Queen’s Bench Division of the High Court of Justice between Dr OAF Ahmed (Claimant) and Dr N Addy and Dr N Karwal (Defendants) Mr Justice Mackay gave judgment for the Claimant in the sum of £188,300 plus interest and costs. The Second Defendant (“Dr Karwal”) is the Appellant in these proceedings and the First Defendant (“Dr Addy”) her husband.
2. The Learned Judge found in short, applying a criminal standard of proof, that Dr Karwal and Dr Addy had induced Dr Ahmed to hand over to them the sum of £188,000 by fraudulent misrepresentations in relation to a bogus business venture of the type commonly known as an advanced fee fraud. The characteristic element of such a fraud is that a person is asked to facilitate, by giving the fraudster money to pay a fictitious insurance premium, the payment out of an African Central Bank account non-existent business profits falsely claimed to have been made by the perpetrator of the fraud.
3. Permission to appeal against the judgment was refused by a single judge of the Court of Appeal on paper on 6 September 2004 and the renewed oral application was refused by the full court on 22 October 2004.
4. It is fair to record that Mackay J, although finding fraud on the part of both Dr Karwal and Dr Addy, (a) characterised Dr Karwal’s state of mind as “at the very least reckless as to whether her misrepresentation was true or false” (paragraph 97 of the judgment) and (b) appeared to treat Dr Addy as the main instigator of the fraud. Both continue to contest the judgment and have made an application to the European Court of Human Rights (“ECHR”) of which more below.
B. Removal from Performers’ List
5. By a letter dated 28 July 2004 Philip Greenhill, Director of Primary Care of Medway Teaching Primary Care Trust (“the PCT”), gave Dr Karwal notice that the PCT intended to consider suspending her under Regulation 13 of the National Health Service (Performers Lists) Regulations 2004 (“the Regulations”). At a meeting of the Decision Making Group (“DMG”) of the PCT held on 22 September 2004 under the chairmanship of an independent chair it was decided to suspend Dr Karwal from the Performers’ List with immediate effect. Full reasons for the suspension were contained in a further letter from the PCT to Dr Karwal dated 6 October 2004.
6. By a letter from the PCT dated 13 December 2004 Dr Karwal was given notice of the PCT’s consideration whether to remove her from the Performers’ List under Regulation 10. At a further meeting of the DMG of the PCT on 18 January 2005 it was resolved to remove Dr Karwal from the Performers’ List. At that meeting the DMG heard oral representations from Mr Barr of the Local Medical Committee and written representations from Messrs Clyde & Co. Dr Karwal chose not to attend that meeting and authorised Mr Barr in writing to appear on her behalf. The removal was based solely on the suitability criterion under Regulation 10 (1) (4).
7. In its application to suspend Dr Karwal and in its Statement of Case supporting the application to remove her the PCT relied solely upon the proceedings brought by Dr Ahmed and the High Court judgment against her.
9. Directions were given on 29 April 2005 and a hearing date set for 26 May 2005. By a letter dated 28 April 2005 Messrs Clyde & Co applied for an adjournment on the grounds that (a) Dr Karwal would be “unfit to withstand the rigours of the hearing” and (b) that one day would be insufficient time for the hearing.
10. The hearing on 26 May 2005 was treated as a hearing for further directions and attended (in the absence of Dr Karwal) by Ms Bowron QC on her behalf and Mr Angus Moon for the PCT. Grounds advanced for a lengthy adjournment of the appeal were: ill-health, the need to await the outcome of the application to the ECHR, the need to await the outcome of a complaint to the GMC by Drs Karwal and Addy against Dr Ahmed and the need for an interval to enable Dr Karwal to place her legal team in funds for the substantive hearing of the appeal.
11. The appeal was adjourned until 5 October 2005 with two additional days in reserve. The only ground on which the adjournment was allowed was the desirability of Dr Karwal having time to fund legal representation at the substantive hearing. The Panel rejected the application insofar as it was based on Dr Karwal’s state of health on the basis that there was no evidence that she was suffering from anything but a combination of chronic illnesses, no evidence that she was or was likely to be in an acute phase of any of these illnesses or that her state of health was likely to be any better in three months than at the date of the application. We shall return to the other grounds below.
12. Directions were given for the exchange of witness statements and supplemental statements and appeal bundles. The first two of these were duly complied with but a further application for an adjournment was made by letter dated 16 September 2005. The grounds relied upon were: (a) unresolved financial difficulties precluding the arrangement of legal representation, (b) the unavailability of Mr Barr (described as “our witness” but presumably as an alternative representative) and (c) the need to await the outcome of the application to the ECHR.
13. This application was resisted by the PCT on the grounds (a) there had been one lengthy adjournment to a date agreed on behalf of Dr Karwal, (b) the PCT had committed resources to the preparation for the 5 October hearing, (c) there was no evidence that legal representation would be fundable by Dr Karwal by an adjourned date and (d) a further adjournment would prejudice the PCT by, for example, the effect on memories of the lapse of time and the continued payments by the PCT to Dr Karwal during her suspension.
14. By Directions dated 28 September 2005 the application for an adjournment was refused and Dr Karwal was directed, if she chose to renew it at the commencement of the hearing on 5 October, to provide evidence in writing of the future availability of funding for her appeal. The Appellant was further directed that if, as seemed likely, she intended to make submissions relating to the pending application in the European Court of Human Rights (“ECHR”), she should file with the FHSAA (a) a copy of the application to the ECHR and (b) a copy of any final submissions made to the ECHR. This had been ordered by the Directions of 29 April 2005 to be done by 19 May 2005 but that Direction had not been complied with.
15. By a letter dated 29 September 2005 Messrs Clyde & Co advised the solicitors for the PCT and the FHSAA that they no longer acted for Dr Karwal.
16. There followed letters addressed to the Panel Chair dated 30 September, 3 October and 4 October 2005. These repeated the request for an adjournment on the same grounds and referred back to the necessity to delay proceedings until the GMC and police investigations into the conduct of Dr Ahmed had been completed. In addition there were two new grounds. It was submitted that the FHSAA or the PCT should provide Dr Karwal with £30,000 to fund her appeal and that the Chair (and possibly the Professional Member of the Panel) had conflicts of interest in hearing the appeal.
17. All these letters were typescript with a typescript signature “Dr Naveen Karwal pp” with a manuscript above it. This manuscript may be initials or a signature: all these letters appear to have been written by Dr Addy.
18. By a letter faxed by FHSAA to Dr Addy (in response to a telephone call) on 3 October 2005 was advised that the Panel members had signed a declaration that they had no conflict of interest in hearing the appeal, that Dr Karwal should attend on 5 October 2005 and give oral evidence about her financial position and reminded that, if reference was to be made to the application to the ECHR, a copy of that application and any final submissions made in support of it should be produced.
19. In response to this a letter on behalf of Dr Karwal was faxed to FHSAA the same day alleging lack of independence on the part of the Chair principally on the basis that he was a Non-Executive Director of Wandsworth PCT.
D. The 5 October hearing
20. On 5 October 2005 in the absence of Dr Karwal the Panel considered the written application for an adjournment. This was opposed by Mr Angus Moon on behalf of the PCT. In short he submitted that more than 8 months had elapsed since the decision to remove; that delay was the enemy of justice; that three days had been set aside to consider the appeal; that the PCT was paying Dr Karwal £4,000 per month as well as paying another doctor to look after her patients and that those patients were entitled to continuity and to know who was their GP.
21. He submitted that Dr Karwal had had more than four months to arrange funding and that there was no evidence that she would be in any better position to arrange that funding in the future than at the present time.
22. In relation to the inequality of arms (that is, appearing unrepresented against a represented PCT) owing to that lack of funding Mr Moon referred to Pine v The Law Society  EWCA Civ 1574 for the proposition that the test was whether the withholding of legal aid (in this case, by analogy, lack of access to funding) would make the assertion of a civil claim practically impossible or lead to obvious unfairness of proceedings.
23.When considering these criteria the Panel should, he said, consider four matters: (a) what was at stake, (b) the complexity of the law and procedure, (c) the capacity of the party to represent herself and (d) the likely unfairness in proceeding.
24. In relation to (a) Mr Moon submitted that only the ability to continue as a General Practitioner in the NHS (and not the liberty of the subject or the ability to practise private medicine) was at stake. In relation to (b) the procedure was a redetermination and thus complex legal arguments and appellate procedure were not involved. The legal question was said to be simple: did the findings of Mackay J render Dr Karwal unsuitable within the meaning of Regulation 10?
25. In relation to (c) Mr Moon submitted that the fact that Dr Karwal had law degrees and some experience in the conduct of litigation made her not incapable of representing herself and in relation to (d) that the Panel itself should and would guard against unfairness in its procedures.
26. Turning to the grounds relied upon to adjourn the hearing it was said that on Dr Karwal’s evidence (contained in the letter dated 30 September in paragraph 4 (h)) she would need, in order to vary or discharge the freezing order over her assets, to raise either £800,000 or £988,000 (depending whether the figures set out in that letter are cumulative or separate).
27. There was no evidence of an application to vary the freezing order or of the value of the three properties in respect of the remortgaging of which Messrs Dundas & Duce, solicitors in Maidstone, had been instructed. In summary, it was impossible to say if or when funding for these proceedings might become available.
28. In relation to the claimed bias of the Panel Mr Moon asked us to deal with the issue first as it affected the application for an adjournment and again at the beginning of the substantive proceedings. He relied on Porter v Magill  2AC 357, at paragraph 103, and submitted that the correct test was “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”. He submitted that the Panel Chair was not a director of the Respondent PCT and there was no reason to suppose that his Non-Executive membership of another PCT would even possibly lead to a pre-determination of the issues in this case.
29. In relation to the need to await the outcome of the GMC investigation of Dr Ahmed Mr Moon produced an attendance note by Messrs Capsticks of a telephone conversation with Peter Swain of the GMC dated 22 September 2005 to the effect that that investigation was not being pursued.
30. In relation to the need to await the outcome of the application to the ECHR Mr Moon submitted that Dr Karwal had failed to comply with the Direction to disclose the application and any final submissions made. In paragraph 10 of the letter sent on behalf of Dr Karwal on 3 October 2005 it was claimed that since the matter was “[SUBJUDICE]” no-one should have a copy of the final submission. Mr Moon submitted that there was no privilege protecting these documents from disclosure. More importantly, he submitted that there was no reason to await the outcome of this application since it could not as a matter of law affect the judgment of Mackay J or the rejections of the application for permission to appeal against it.
31. On the final ground that the appeal should be delayed until the outcome of the police investigation of Dr Ahmed for perjury was known, it was submitted that there was no evidence before the Panel as to what stage that investigation, if indeed it was still continuing, had reached or when it might be completed or, indeed, what assistance it could be to the Panel in the determination of this appeal.
32. There are three questions to be addressed: do we have power to proceed in the absence of Dr Karwal; if so, should the hearing proceed with the appellant unrepresented; and is there a good ground upon which to adjourn the hearing?
33. The power: by Rule 40 (1) of the Family Health Services Appeal Authority (Procedure) Rules 2001 the Panel may either adjourn the hearing in the absence of a party or “(a) unless it is satisfied that there is reasonable excuse for such absence, hear and determine the appeal…”.
34. The decision to proceed in Dr Karwal’ absence: we have considered the representations made on behalf of Dr Karwal as required by Rule 40 (2). We note that no application to adjourn the hearing on health grounds has been made and conclude that Dr Karwal could have attended, had she chosen so to do. She was by letter dated 3 October 2005 encouraged to attend, if only to provide more information to support her case that she should be allowed time to fund legal representation. We take into account the fact that Dr Karwal has two University awards in law and she and Dr Addy have experience of conducting litigation (the application to the ECHR, an Employment Tribunal application against West Kent Health Authority and Medway CHC and two civil claims against Mr and Mrs Bryans). We conclude that her absence was without reasonable excuse and that we should go on to consider the application for an adjournment on its merits.
35. Should the hearing be adjourned? We determined to hear the application for an adjournment and to give an oral decision at the end of it. We decided to refuse the application for reasons to be given in detail later. The following are the reasons for our decision.
36. We deal with the “equality of arms” point first. We find that the stakes for Dr Karwal are indeed high since an adverse outcome of this case will severely limit her practice of medicine.
37. In our view the procedure for the hearing is simple and informal. The Panel would be careful to ensure that it was comprehensible to and easily usable by Dr Karwal. The question of law is also short and unburdened by legal authority and is a question upon which there is accessible guidance from the Department of Health. It would be possible to characterise the question as a “jury question” or as one of common sense.
38. For the reasons set out in paragraph 34 above we find that Dr Karwal should have been competent to represent herself alone or with the assistance of Dr Addy.
39. Any disadvantage to Dr Karwal could in our view have been largely mitigated by the supervisory activity of the Panel. Thus we do not consider the disadvantage of appearing without professional representation in itself sufficient to provide a good ground for adjournment.
40.The main substantive ground upon which an adjournment was sought was the need for an interval to secure funding for legal representation. The evidence provided in support of this was manifestly unsatisfactory. Although Messrs Dundas & Duce had been instructed on the remortgage of three properties and had, according to their letter of 28 September 2005 “received valid mortgage offers” to allow the transactions to proceed, they were unable, perhaps surprisingly, to give any indication when they might be completed. Nor was there any evidence of the funds that might become available after such completion.
41. In paragraph 4(h) of the letter of 30 September from Dr Karwal there is reference to “sale/remortgage” of three properties but again no evidence of the preferred course of action or of the likely resulting surplus, if any, after discharging up to £988,000 secured by court order. The letter also says that the solicitors must not be contacted “because they are at a very delicate stage of negotiations”.
42. That letter raises the intention, if the hearing were to be adjourned, of applying to the court for variation of the freezing order to enable representation to be funded. We conclude that such an application could and should have been made at any time after the hearing date of 5 October 2005 was fixed on 26 May 2005, particularly after receipt of three offers of remortgage.
43. It was for the reason of this lack and uncertainty of evidence that Dr Karwal was encouraged by Direction of 28 September and letter of 3 October to attend the hearing with documents so as to be in a position to explain her position. She has steadfastly refused so to do. We therefore reject delay to obtain funds for representation as a valid ground for the adjournment of the hearing. We should add for the sake of completeness that the FHSAA has no power to provide or order the PCT to provide funding for Dr Karwal’s appeal
44. In relation to bias we considered whether the Panel, and in particular the Chair, was biased so as to vitiate the application for an adjournment. For the reasons submitted by Mr Moon we concluded that it was not and resolved to reconsider the question before beginning to hear the appeal itself.
45. We reject the ground based on the GMC investigation of Dr Ahmed on the ground that there is uncontroverted evidence that the investigation has been discontinued.
46. We reject the ground based on the police investigation of Dr Ahmed on the ground that there is no current evidence of the existence or state of that investigation.
47. The remaining ground is that the hearing should be adjourned until the conclusion of the application by Dr Addy (joined by Dr Karwal only after her removal from the List) to the ECHR. This ground is without merit for two reasons. Despite Directions on 29 April and 28 September 2005 the application and final submissions to the ECHR have not been put into evidence by Dr Karwal. Thus the Panel has no knowledge of the grounds for the application or its relevance to this appeal.
48. More importantly, it is clear law that the ECHR has no power to quash or otherwise overturn the judgment of Mackay J: Attorney General’s Reference (N0 2 of 2001)  2 AC 72 at paragraph 23. That was a criminal case but there are compelling reasons to infer that, since no remedy was available when the liberty of the subject was at risk, the result would be the same where only issues of financial relief rested on the outcome. If any such application were to be successful, the result would be a finding and the prospect of an award of damages against the United Kingdom. Neither would affect the judgment of Mackay J.
49. For all these reasons we refused the application to adjourn the hearing. In order to give Dr Karwal a further chance to put her case a letter was written by the FHSAA to Dr Karwal informing her that her application had been refused but the substantive hearing would not begin until 10am on 6 October, the next day, in order to allow her a further chance (which she was very strongly encouraged to take) to attend.
50. The FHSAA was informed by Dr Addy at approximately 1215pm on 5 October 2005 that his fax was not working and that the letter advising the outcome of the application for an adjournment could not be received. Accordingly the letter was delivered later that day by courier to Dr Karwal.
51. Dr Karwal did not attend and was not represented. A letter dated 6 October signed in the usual way was faxed to the FHSAA complaining that the courier delivery to a home address was inhuman and degrading treatment infringing the family’s human rights, alleging bias and complaining of further breaches of human rights.
52. Mr Moon addressed the Panel on the question whether, for the same reason as set out at paragraph 19 above, the Panel should recuse itself on the ground of apparent bias. He relied upon R v Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No 2)  1 AC 119 HL at 132-133 and submitted that there was no relationship between the Chair of the Panel and the PCT, that Medway and Wandsworth PCTs were not responsible to each other, that those PCTs had no common interest in removing GPs from each other’s Lists or in achieving a particular outcome for this appeal. In any event the Panel Chair, as a Non-Executive Director of Wandsworth PCT, was detached from the day-to-day executive functions of that PCT.
53. The existence, it was said, of apparent bias in this case would have wide consequences for courts and tribunals that would severely affect their proper functioning: no person connected with a PCT could be a member of the FHSAA, no professional member could be appointed to it and the like.
G. Decision on the issue of bias.
54. After Mr Moon’s submission on the issue of bias and before proceeding with the substantive appeal the Panel Chair gave an oral judgment in the following terms.
55. In a letter dated 6th October 2005 signed on behalf of the Appellant, an objection to my sitting as Chair of this Panel, which has been made in more than one previous letter, has been made on the grounds that I am “not really independent”. The reason for this is said to be that I am a Non-Executive Director and (I should add for the sake of completeness) also the Vice-Chair of another PCT, that is Wandsworth PCT, in South West London. My membership of the Family Health Services Appeal Authority (the FHSAA) has been declared to that PCT and my membership of the Board of Wandsworth PCT has been declared to the FHSAA. By agreement with the President of the FHSAA I do not sit in cases involving appeals by professionals, against decisions of PCTs in South West London. In fact since my appointment to my PCT on 1st January 2003 I have not sat on any cases involving appeals relating to any London PCT.
56. In this case I have signed, as have my fellow Panel members, declarations that there is no conflict of interest in hearing Dr Karwal’s appeal. In the light of the submission of the Respondent we have considered whether I or we do or may fall within the second category of cases of bias set out in R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 2)  1AC119 HL. The decision in Pinochet is helpfully summarised by Colman J in re P (A Barrister)  1WLR 3019 at paragraphs 84 and 87.
57. Paragraph 84 states:
“In determining whether in a given case a Judge or Tribunal member would act as Judge in his own cause it is clear from R v Bow Street Metropolitan Stipendiary Magistrate, Ex P Pinochet Ugarte (No 2)1AC119 HL, that the following approach is required.
It is first necessary to ascertain whether he or she is
a party to the proceedings or is so substantially a constituent of the party as
to be presumed to partake of its purpose as a participant in the proceedings.
If a member of a Tribunal is not a party or one who is
inseparable from a party in that sense, the question then arises whether he or
she has a common interest with a party that the proceedings will have a certain
The interest need not be a financial interest. The essence of common interest is an
interest in the outcome, to the effect that the particular party will succeed
in obtaining a particular decision.
(iv) In such cases there will be automatic disqualification without investigation as to whether there was actual bias or suspicion of bias.
58. In paragraph 87 Colman J sets out that
“What matters is whether the appearance in a court of the relationship between the Judge and the party indicates that they have a common interest.”
59. Since it is common ground that I have no relationship as such with the Respondent Primary Care Trust the question is whether I have a common interest with that PCT in the determination of these proceedings.
60. In my judgment there is no common interest between Wandsworth PCT and Medway PCT in relationship to the recruitment or removal of general medical practitioners or in relation to the maintenance of Performers Lists. Wandsworth PCT has no interest in the outcome of this appeal. Wandsworth PCT and the Respondent PCT have no direct relationship, no responsibilities to each other and carry out their functions under the auspices of different Strategic Health Authorities.
61. I am fortified in my conclusion that there is no common interest giving rise to a real or apparent bias of the second type described in Pinochet by the recommendation of Lord Justice Chadwick contained in paragraph 7 of his judgment in Dobbs v Triodos Bank NV  EWCA Civ 630 that judges should be reluctant to recuse themselves for reasons of comfort when confronted with allegations of bias.
62. To the extent that similar allegations may be made alleging bias on the part of my GP colleague, Dr Kwan, I reject them. I reject these on similar grounds to those on which I rejected the allegations in respect of myself. For the sake of completeness I add that Dr Karwal alleges that she does not know the names of the other Panel members. As I understand it, it is the universal practice of the FHSAA to notify parties of the membership of an Appeal Panel.
63. For the avoidance of doubt, although this judgment has been delivered orally by the Chair, it is a judgment of the entire Panel.
H. The substantive hearing of October 6.
64. It was common ground that the burden of proving the unsuitability and/or inefficiency grounds against Dr Karwal rested on the PCT.
65. In relation to the merits (as opposed to questions of the removal procedure) the PCT relied solely on the judgment of Mackay J and in particular as it dealt with Dr Karwal herself. Mr Moon drew attention to a number of passages in that judgment: in paragraph 18 there was a finding that Dr Karwal said (which she had denied) that she and her husband had done a business deal worth £30 million when she knew it was not true. In paragraph 19 it was found as a fact that she did not contradict Dr Addy’s untrue assertions about his wealth but rather encouraged Dr Ahmed to believe they were true.
66. In paragraphs 53-55 the judge found that Dr Karwal’s attempts to delay the trial were not made in good faith.
67. In paragraph 30 she positively confirmed untrue information about the business deal in order to entice Dr Ahmed to part with his money. In paragraph 97 there is an explicit finding of fraud against Dr Karwal.
68. Although it was not part of its primary case, the PCT provided written evidence from Messrs Gillespie, Anderson and Sheath and Dr Woodman, the members of the DMG in order to refute the allegation of bias against the PCT in their decision to remove.
69. The statements of the Messrs Anderson and Sheath were to the effect that they did not know Drs Karwal and Addy before the 22 September 2004 meeting of the DMG. Dr Woodman had come across Dr Karwal some years beforehand when she unsuccessfully applied to join the practice in which he was the junior partner. He had also been aware of the dispute between Dr Karwal, Dr Addy and Mr and Mrs Bryans but did not take either of these matters into account when coming to a view at either of the DMG meetings.
70. Mr William Burrell Gillespie, the Chief Executive of the PCT, gave oral evidence in addition to his witness statement. He described the 18 January 2005 meeting of the DMG. On advice he asked Mr Barr to obtain the written consent of Dr Karwal to represent her at the meeting in her absence. The meeting did not begin until that was available. The meeting lasted about an hour as the statement of case was presented to the DMG on behalf of the PCT and Mr Barr (whom Mr Gillespie described as very experienced in these matters) replied on behalf of Dr Karwal. Transcripts of both DMG hearings were before us.
71. Mr Gillespie confirmed that he was aware of a previous dispute over Dr Karwal’s premises which the PCT regarded as sub-standard. At a meeting attended by Dr Addy, but not Dr Karwal, Dr Addy proposed that adjoining premises which he or Dr Karwal owned should be refurbished and the practice moved to them. There was an independent valuation of this option against another option proposed by the PCT and the latter was found to provide better value for money. Dr Karwal appealed unsuccessfully to the Secretary of State against this decision and the PCT withheld (as Mr Gillespie said it was entitled to) the rates on Dr Karwal’s premises.
74. Three witness statements were provided on Dr Karwal’s behalf. In her own statement she described her professional background and then described in paragraphs 4-17 a history of disputes with NHS bodies and with the Bryants. The statement then deals with her relationship with Dr Ahmed. In paragraph 27 she claims to have been “completely unaware of any so-called “business dealings” between my husband and Dr Ahmed and had certainly not been directly involved in any aspect”.
75. She records that in February 2000 the West Kent Health Authority referred a number of complaints by patients to the GMC who instigated a performance review. That review, a copy of which was before us, found the standard of Dr Karwal’s practice acceptable on all 14 assessment sections.
76. In his statement Dr Addy sets out his own professional background, confirms his wife’s statement, refers to a history of disputes with West Kent Health Authority but declines to go into details since they are “matters…not directly relevant to my wife’s appeal” although he alleges they will have coloured the PCT’s view of his wife and her practice (paragraph 4). He disputes the findings of Mackay J and confirms that any dealings he himself had with Dr Ahmed did not involve Dr Karwal in any way (paragraph 5). He ends by asserting that she has dealt with her patients and practice with complete honesty, integrity and probity (paragraph 6).
77. In his statement David Homeshaw recorded that he had provided consultancy services to Drs Karwal and Addy since 1997 having known the former since 1981. He describes in paragraphs 2-3 and 5-6 a series of disputes involving Drs Karwal and/or Addy. He refers to the outcome of the GMC performance review of Dr Karwal in paragraph 4 and to the claim by Dr Ahmed in paragraph 7. In paragraph 8 he concludes “I have no knowledge of any facts or matters which would suggest that Dr Karwal has dealt with NHS resources, with other than honesty and integrity over the 23 years I have known her”.
79. In relation to the application to the ECHR and the investigations of Dr Ahmed Mr Moon effectively repeated his earlier submissions summarised at paragraph 29-31 above.
80. On the assertion in the grounds of appeal of a lack of proportionality in the decision to remove it was submitted that the doctrine of proportionality did not apply to the 18 January hearing or this appeal: Kataria v Essex SHA  Lloyds Law Reports: Med 215 at paragraphs 74-76, Chaudhury v GMC  Lloyds Law Reports: Med 251 at paragraph 21. This was on the basis that the right to practise medicine is not a right guaranteed by the European Convention on Human Rights. Mr Moon expressly reserved the right to argue that Article 6 is not engaged in proceedings before the FHSAA.
81. In this case it was for the Panel to make a fair and reasonable decision balancing the interests of both parties. We should, it was submitted, find that probity, honesty and trustworthiness are central features of a doctor’s professional life. We were reminded of the well-known words of Sir Thomas Bingham MR in Gupta v GMC  UKPC 61 at paragraph 21: “A profession’s most valuable asset is its collective reputation and the confidence which that inspires. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price”.
82. Mr Moon reminded us that there was no statutory definition of suitability although Regulation 11 (2) of the National Health Service (Performers Lists) Regulations 2004 directed attention to a number of matters to be considered in deciding whether to dismiss a practitioner on the ground of unsuitability.
83. Relevant in this case were the nature of the incident, the length of time elapsed, whether there were other incidents to be considered, any action taken or penalty imposed by a regulatory body or the courts and the relevance of the incident to service performance and likely risk to patients.
84. Mr Moon relied on the fraudulent nature of the incident, reminded us that although it took place in 1999-2000 judgment was not given until 2004 (whereafter prompt action was taken by the PCT) and asserted that there was an intrinsic risk to patients in being treated by a GP who lacked integrity. He did not rely on the third consideration and conceded that the fourth might benefit Dr Karwal.
85. He referred to the Guidance Good Medical Practice May 2001 at paragraph 54 which requires a doctor to be honest in financial and commercial dealings with employers, insurers and other organisations and individuals, giving particular emphasis to the last.
86. In relation to the efficiency ground Mr Moon submitted that the continued inclusion on a List of a doctor who lacked integrity would be prejudicial to the efficiency of the service provided. He described the concentration of the Guidance at paragraphs 7.4 and 7.5 on competence and quality of performance as misleading and referred to Kataria at paragraph 69 where Stanley Burnton J said “In my judgment it is obvious that the efficiency of the NHS might be prejudiced by want of probity in a practitioner, and in particular by any unreliability of his written or oral statements. Fellow practitioners and other NHS staff and patients must be able to rely on the integrity of doctors and the honesty of their statements”.
87. No good reason (as opposed to bare assertions to the contrary) has been advanced by Dr Karwal why we should not (even if we were not in law compelled to) accept the findings of Mackay J that she was a willing and active participant in a sustained campaign of fraud against a fellow doctor.
88. In the letter of 30 September written on Dr Karwal’s behalf in paragraph 4 (f) it was alleged that the judge (Mackay J) had “fabricated the evidence” by “improper connection with Dr Ahmad to protect him”. In paragraph 11 of the letter of 3 October it was alleged that the PCT had an improper connection with ten people including Mackay J. No attempt was made to support these allegations with evidence or to persuade the reader why she may be the victim of so broadly-based a conspiracy. These allegations reinforce rather than weaken concerns over the suitability of Dr Karwal to practise medicine as a GP in the community.
89. It was suggested by Mr Moon that Dr Karwal lacks insight into her condition. If she authorised these allegations to be made on her behalf, she appears to be so lacking. If they were sent in her ignorance of them or without her authority, it casts further doubt on her professional qualities that she allowed the detail of this crucially important appeal to be conducted on her behalf either ignorant of or indifferent to what was said on her behalf.
90. The oral evidence of Mr Gillespie, consistent with the written evidence of the other witnesses for the PCT, satisfies us that the DMG meeting on 18 January 2005 was properly conducted, took account of only relevant (and indeed very limited) matters and avoided consideration of former episodes that might have predisposed the members of the DMG against Dr Karwal. If it is necessary to satisfy us that that meeting was conducted free from bias, we are so satisfied.
91. We accept, for the avoidance of doubt, the submission that any bias we might have found in the DMG meeting would have been cured by a fair hearing before this Panel. We have made strenuous efforts to encourage Dr Karwal to attend and taken pains in her absence (as we would have assisted her, if present and unrepresented) fairly to consider and evaluate all the evidence in the case that is summarised above. It should be recorded that we have had and read three ring binders of documents amounting to several hundred pages together with a bundle of statutory materials and authorities of similar proportions. It is also worth recording that the witness statements filed on behalf of Dr Karwal and the exhibits to them were made with the assistance of Messrs Clyde & Co. It is, therefore, reasonable for us to conclude that all relevant matters at Dr Karwal’s disposal were before us.
92. The difficulty with the evidence filed on behalf of Dr Karwal is that, apart from dealing with her clinical competence (which is not in dispute) and previous difficulties with WKHA and the PCT (which are of no relevance once we have found that the DMG meeting was conducted free from bias or that any bias would have been cured by this appeal) all that remains is the assertion that the findings of Mackay J were wrong. It is not, however, open to us to go behind those findings, even if we were convinced they were wrong (which we are not).
93. We have no doubt 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. That seems to us to be part of the price of professional membership described by Sir Thomas Bingham MR in Gosai.
94. We see the force of Mr Moon’s submissions in relation to efficiency. Kataria was, however, a case on very different facts raising different regulatory questions. In circumstances in which the PCT expressly disavows any criticism of Dr Karwal’s clinical skills, did not make a finding of inefficiency at the DMG, where the only evidence relevant to her clinical efficiency is her satisfactory performance review and the Departmental Guidance in relation to efficiency is described by Mr Moon as “misleading” we believe it would insult to injury to make a finding of inefficiency.
95. We were not asked to decide whether the proceedings before us are subject to Article 6 of the European Convention on Human Rights and accordingly we do not decide the point. Although we have decided the question of Dr Karwal’s suitability afresh we should make it plain that in our judgment the proceedings and decisions of the DMG were both proportionate and fair and reasonable.
96. Whilst we accept the overlap between the grounds of efficiency and unsuitability, we think it right in the circumstances of this case to deal with them separately as far as possible. Whilst, if the PCT had chosen to proceed on the efficiency ground alone, we should and would have taken evidence relating to the appellant’s probity into account, where (as here) the PCT chooses to pursue both efficiency and unsuitability it seems to us logical and fairer to Dr Karwal to treat them as if distinct. Otherwise one would add little or nothing to the other.
97. For all these reasons the Panel unanimously finds that Dr Karwal is unsuitable to be included on what was at the time of the application the PCT’s Performers List and dismisses her appeal in relation to the unsuitability ground.
98. 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 we refused to deal with that application, if a finding were made against Dr Karwal, for two reasons.
99. First, she would have received the skeleton giving her notice of the application only on 4 October and, second, it appeared to us that it would not be sensible or fair to either party to deal with it before seeing these detailed reasons.
100. Accordingly the question of National Disqualification will be considered at 10am on 27 October 2005 at the Care Standards Tribunal. By letter dated 6 October 2005 the FHSAA notified Dr Karwal of this and very strongly recommended her to attend.
101. We direct that a copy of this decision be sent to the persons and bodies referred to in Regulation 47 of the Family Health Services Appeal Authority (Procedure) Rules 2001.
102. Any party to these proceedings has the right to appeal this decision under and by virtue of Section 11 of the Tribunals and 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
10 October 2005