IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY
Case No 10626
BETWEEN:
DR. C. V. KOTHARI Appellant
- and -
1.
This is an
appeal by Dr. C.V. Kothari against the decision of the Tower Hamlets Primary
Care Trust (hereafter referred to as “the PCT”) made on 2nd May 2003
under Section 49F of the National Health Services Act 1977, as amended by the
Health and Social Care Act 2001, to remove him from the list of National Health
Service general medical practitioners within the PCT on the grounds that his
continued inclusion in the list would be prejudicial to the efficiency of the
services which those included in the list undertake to provide.
2.
At the hearing
on 4th September 2003 Dr. Kothari was represented by Mr James
Badenoch Q.C. instructed by Messrs. Radcliffes Le Brasseur and Mr Huw Lloyd
instructed by Messrs. Capsticks represented the PCT.
3. The PCT had prior to the hearing lodged a bundle of documents consisting of 33l pages (PCT l-33l). At the hearing, Dr. Kothari sought and was granted permission to rely on a bundle of some 28 pages (D1-28).
4.
At the commencement of
the hearing Mr Badenoch helpfully made it clear that there was no substantive
challenge to the evidence presented by the PCT but rather that he would seek to
place the deficiencies identified by the PCT and acknowledged by Dr. Kothari in
proper context. In summary, the essence of the appeal was that the decision to
remove Dr. Kothari from the list was too harsh in all the circumstances and was
unfair. The Appellant’s Grounds of
Appeal to which we shall return in due course had indeed presaged the scope of
the appeal.
The Background.
5.
Dr. Kothari qualified in Gujarat in 1965 and came to the U.K. soon after.
He worked initially in orthopaedics and completed Part 1 of the F.R.C.S. He undertook vocational training in 1968 and
worked in various areas as a locum. He has been a single-handed principal in
general practice in east London since l980. His practice has operated from its
premises at the Sai Medical Centre since 1995.He is 69 years old.
6. In 1999 Dr. Kothari provided a practice profile and plan at the request of the PCT for the period from lst April 2000 to 31st March (PCT l89-230). Concerns were raised by these documents and on 12th September 2000 a Primary Care and Clinical Governance Practice Visit was made. A number of recommendations were made and key areas for improvement identified (PCT 233-237). In particular, key priorities were agreed with Dr. Kothari that included the implementation of local Clinical Effectiveness Group (CEG) guidelines and compliance with the National Service Framework for coronary heart disease (CHD) by implementing CEG guidelines and participating in the Tower Hamlets practice incentive scheme.
7. On 29th December 2000 Caroline Gilmartin, the head of Primary care Development wrote an e-mail to Alison Hill stating,
“There are a range of concerns about his practice, these include
staffing, prescribing, computerisation, providing good follow up care audit and
target achievement. Mostly we are
concerned that he hasn’t really engaged at all with the primary care
co-ordinator, has said he has no time to get involved with the CEG or the practice
CHD incentive scheme, and is therefore not really giving any signs that he is
keeping his practice up to the expected level.
The performance sub group has asked me to
formally discuss the issues that we have concerns about with you with a view to
you undertaking a practice visit to assess for yourself the situation.” (PCT 238-239).
8. On 1st February 2001 a meeting between the Primary Care Coordinator and the Practice Manager, Mrs. Kothari, led to concerns about areas of deficient understanding in relation to clinical governance and the need for audit, as well as policies on employment, health and safety, training and staff development. Between February and June 2001 six information technology training visits took place to address IT concerns. (PCT 245 – 252). A second Clinical Governance visit to the practice took place on 27th July 2001 and areas of concern still outstanding were highlighted. (PCT 243-244). On 26th October 2001 Caroline Gilmartin wrote to Dr. Kothari reiterating the PCT’s continuing concerns that included the policy and procedures in relation to repeat prescribing, failure to engage with the prescribing advisor, lack of consistent use of evidence based guidelines, limited staff development, limited computerisation, non-involvement with incentive schemes, and the lack of organised care for chronic illness (PCT 253). She advised Dr. Kothari that the PCT had requested Dr.Kheraj, Medical Advisor to the East London & City Health Authority (ELCHA) to visit the practice. In his reply Dr. Kothari dismissed each of these as untrue and claimed that the observations made were faulty (PCT 254).
9. Dr. Kheraj visited the practice and met Dr. Kothari on 14th November 2001 (PCT 50 – 54). Amongst other things he noted in relation to repeat prescribing that there was:
· no clear mechanism to ensure that prescribing errors did not occur
· no method to ensure that appropriate clinical reviews occurred or that any necessary monitoring processes were carried out
· no systems to prevent over-use or detect under-use of any drugs
· no corresponding list in the patient’s notes that matched the prescription card for reception staff to check.
He
considered that Dr. Kothari displayed a lack of understanding of any possible
problems around providing repeat prescriptions following telephone requests. He
described the system in operation described as a “high risk way to proceed ” (PCT 51).
10. Dr. Kheraj noted that Dr.Kothari said that he was too busy to meet with the PCT prescribing advisor and did not perceive that the meeting would be of any value. Dr.Kothari was unaware of discussions about the clinical quality issues around generic prescribing. He was unaware of the Chief Medical Advisor’s letter recommending that the antibiotic co-amoxiclav be not used as a first line treatment. Dr.Kheraj noted that Dr.Kothari had no system or protocol for the treatment of patients addicted to benzodiazepines and that these were made available on repeat prescription without a clear system for regular review (PCT 5l-52).
11. Dr. Kheraj noted that Dr.Kothari did not use a computer in the consultations even for the issue of prescriptions during consultations. He observed that the A4 notes did not contain any summaries and Dr. Kothari was unable to explain the process that would be used to produce summaries. He also noted that there were no formal manual disease registers and stated that it would be impossible to develop any system of structured care based on the form of “disease register” in operation (PCT 52).
12. In relation to chronic disease management, Dr. Kheraj noted that there was no specific protocol for diabetes and Dr. Kothari had no active involvement in running of the weekly diabetic clinic. He was unaware of the availability of chiropody or retinal photography locally. Dr. Kothari did not appear to have any knowledge of the National Service Framework for cardiovascular disease or any others (PCT 52-53).
13. Dr. Kheraj recommended that, subject to satisfactory medical examination,
“further work will need to
be undertaken with the practice to ensure
the provision of general medical services is acceptable both in terms of
quantity and quality. This would
involve visiting while the surgery is running, reviewing a larger sample of
medical records and directly observing consultations.
That safe systems of working are in
place. This would involve a meeting
with the Practice Manager and the Doctor to develop a clear action plan with an
agreed timetable.
Should this course of action not be possible, further disciplinary action will
be necessary.” (PCT 54)
14. Dr. Kothari was found to be medically fit on examination arranged by the local Medical Committee (PCT 274) and subsequent ophthalmic examination was satisfactory (D9).
15.
In February 2002 child protection issues were raised
with PCT in relation to a child and his mother, identified for the purposes of
this decision as AH and LF. Amongst other concerns in relation to AH’s unmet
health needs, it became apparent that LF was giving AH dihydrocodeine and
benzodiazepines prescribed for her by Dr. Kothari. The Learning Disability
Service of the PCT brought this to Dr. Kothari’s attention in November and
December 2001 at which time they requested that he refer AH to Dr.O’Hara,
Consultant Psychiatrist, to investigate AH’s need for medication in view of his
possible dependence. Despite the admitted urgency of this situation Dr. Kothari
did not refer AH to Dr. O’Hara until 14th February 2002.
16. On 26th March 2002 Stephen Langford, Director of Primary Care Development for ELCHA, wrote to Dr. Kothari informing him that Dr. Graves, a Medical Advisor, would be carrying out a practice assessment the aim of which was to address the key concerns that the PCT and Dr. Kheraj had identified in the time that they had worked with the practice. (PCT 277).
17. In April 2002 Dr. Graves visited the practice on five occasions. On 29th April 2002 he sent a draft of his report (PCT 55-100) to Dr. Kothari and expressly stated that it was intended that it “ might form a practice development plan”. The report contained a comprehensive analysis of how the practice was run and made extensive recommendations in relation to:
· urgent review of record keeping
· improvement and updating of computerisation
· urgent review of Chronic Disease Management
· review of the appointments system
· review of the practice nurse’s responsibility
· recruitment of a partner
· assessment of the personal professional development of all staff
Dr. Graves offered to meet with D. Kothari to discuss a work plan and advised Dr. Kothari of his charges in this regard.
18. On 24th May 2002, the Chief Executive Officer of the PCT wrote to the Chief Executive of the North East London Health Authority (NELHA) requesting the Authority to use its discretionary powers under the Health and Social Care Act 2001 to suspend Dr. Kothari from the medical list on the grounds that he posed a severe clinical risk to the patients on his list. (PCT 28l)
19. On 7th June 2002 Mr. Langford, as the Director of Service Transformation at the NELHA, informed Dr. Kothari by letter that the Authority was considering suspending him from its medical list (PCT 283-286). The suspension hearing was postponed at Dr. Kothari’s request until l8th July 2002.
20. On 4th July 2002 Dr. Kothari wrote to Mr. Langford giving his account in relation to the issues raised in the care of AH and LF and providing information as to the steps he had taken and would take to change his practice (PCT 292-297).
21. On l8th July 2002 the decision was taken to suspend Dr. Kothari under Section 49 (l) of the National Health Service Act l977 as amended by the Health & Social Care Act 200l. Dr. Kothari was notified of his suspension with effect from 22nd July 2002 by letter dated l9th July 2002 (PCT299-300). As Dr. Kothari was eligible to practice privately a referral was also made to the General Medical Council.
22. Thereafter, Dr. Kothari’s suspension was regularly reviewed and renewed in writing. On 5th December 2002 he was informed of the hearing date.
23. On 11th April 2003 Dr. Kothari attended the Panel Hearing, which was chaired by Stephen Langford, the Director of Service Transformation of the North East London Strategic Health Authority (NELSHA). (PCT 150-168).
24. Dr. Hilary James, a member of the Local Medical Committee, represented Dr. Kothari. The Panel heard evidence from Dr. Graves and from Dr. Silk, a general practitioner instructed as an expert on Dr. Kothari’s behalf. Dr. Silk’s lenghy report, although dated 10th April 2003, had only been sent to the NELSHA at 4pm on the previous day. In the light of substantial differences in view between Dr.Silk and Dr.Graves, Dr. Ben Essex, a member of the Panel, was asked to provide an written assessment of the two expert reports in order that lay members of the Board could make their own judgement (PCT 12-23). The Panel recommended that:
i.Dr. Kothari be removed from the list of NHS general medical practitioners
ii. the Family Health Services Appeal Authority should consider national disqualification and
iii.the GMC should consider interim suspension while it investigated the matter further.
25.
On 2nd May 2003 Dr. Kothari was advised that
Tower Hamlets PCT Board had accepted all three recommendations and,
accordingly, his name would be removed from the list. His appeal against that decision comes pursuant to section 49M of
the National Health Service Act 1997 as amended by section 25 of the Health and
Social Care Act 2001.
26. We heard oral evidence from Dr. Graves who, since 1998 had been a medical director of Lambeth Primary Care Trust. He also works as an independent consultant in GP practice and it had been in this context that he was asked to carry out an assessment of Dr. Kothari’s practice. He previously worked as a principal in general practice in Northamptonshire for twelve years. In the course of his career he had also worked in three different practices in Tower Hamlets and had spent some six years in general practice in Southwark. In all he wrote three reports concerning Dr. Kothari’s practice:
· 8th May 2002 (PCT 55-100)
27. Dr. Graves’ opinion overall was that the standard of care in Dr. Kothari’s practice was very low and resembled a walk-in/acute service with no sign of follow-up care. He was severely concerned about the standard of ongoing care, given that research has shown an increased incidence of diabetes, ischaemic heart disease, cancer and mental illness in ethnic populations .We note in this regard that although Dr. Kothari had told Dr. Graves that he thought 90% of his patients were of English origin, the reception staff considered that 90% of patients were of Asian origin.
28. In his audit of the quality of note keeping in a group of patients with ongoing medical problems and on repeat medication (PCT 64-65) he found that:
· 50% of the clinical entries were illegible.
· there was little evidence that examination of patients had taken place.
· there was a lack of clear clinical summaries
·
there was a lack of obvious and up to date lists of
repeat medications.
He considered that these deficiencies posed serious concerns to patient care,
especially from point of view of continuity of care. (See Appendix 3 PCT 82-85)
29. In his audit of repeat prescribing Dr. Graves found that whilst 67% of patients had been seen in the last twelve months there was little indication that a full review had taken place. In 63% of the sample blood pressure had either not been recorded over a four year period or had not been recorded in the last 12 months despite a need for monitoring being clearly indicated (see Appendix 4 PCT 86-90).
30. In his audit of the records of 10 patients with diabetes, Dr. Graves found that one patient had not had their blood pressure recorded for 36 months. Another patient had no record that blood pressure had been measured at all and there was no record of blood pressure for ten months in two other cases. Five patients had no record of blood sugar being measured at all in the previous 4 years. In three other cases, the time lapse since the last measurement was 36,44,and 53 months. None of the patients had had a recorded urine analysis (Appendix 5 PCT 91-94).
31. Dr. Graves told us that in his audit of the care of 9 women on hormone replacement therapy (HRT) he found that 3 patients had not had their blood pressure measured in the last 36 months and another 3 had not had their blood pressure measured for more than 48 months. In two cases there was no record of blood pressure at all, despite the fact that HRT puts women at risk of increased blood pressure. Further, there was no record of any patient having had a breast examination in primary care, despite the known increased risk of breast cancer associated with HRT. One of the patients had a previous history of cerebro vascular accident (CVA) and had been prescribed Tridestra. She was at particularly high risk for a further CVA if her blood pressure was not carefully monitored. According to her records, however, she had not had her blood pressure measured for 4 years (Appendix 6 PCT95-98).
32. In a further audit Dr. Graves examined the records of some 10 patients representing a good cross sample of the sorts of patients he would expect a general practitioner to monitor. He found that these revealed a lack of understanding of asthma, chronic obstructive pulmonary disease (COPD), diabetes, inadequate chronic disease management and probable lack of examination (Appendix 7 PCT 99-100).
33. As indicated earlier, when he provided his first report in May 2002 Dr. Graves made very extensive recommendations, which are set out in detail at PCT 67-73.One recommendation in particular suggested areas where Dr. Kothari would need to focus in terms of personal professional development. These included record keeping, diabetes, women’s health, asthma, COPD, antibiotic prescribing and consultation skills. He also recommended that Dr. Kothari consider finding a personal mentor to help with the necessary practice developments and to guide him through aspects of professional personal development and continuing medical education.
34. In August 2002 Dr. Graves had returned to the practice and carried out a further audit in respect of the records of 50 patients, 43 of whom had requested a repeat prescription during a 2-week period, and a further 7, which were selected by the receptionist on a random basis.
Amongst other things, Dr. Graves found that;
· none of the written notes contained separate and accurate lists of repeat medication or past and ongoing problems.
· Less than 9% of the entries contained evidence that a relevant examination had taken place.
· 58% of the entries were illegible.
· Most clinical entries contained only the patient’s complaint, followed by a prescription.
Of the 50 sets of notes examined, 20 patient records (40%) contained cause for concern. Dr. Graves’ opinion was that this was “horrifying”; he would not expect to see issues of concern in more than 5-6% of cases on audit. He considered 4 of the cases he examined required urgent action;
SP2065– This patient was a 51 year-old woman had had the diagnosis of Essential Hypertension made and had apparently been treated with “Monocor” for at least two years. There were very few entries in the records regarding the issuing of this medication and none on the computer. There were a few entries suggesting other medications were given on odd occasions, but no evidence of long-term management of her hypertension. In a period of two years, six records of blood pressure were taken, all of which should have given cause for concern in a patient receiving anti-hypertensive medication. Further, the written notes indicate that the patient had a chronic depressive problem, for which she has been issued repeated medical certificates (recorded in the receptionist’s handwriting), but there was no evidence of assessment by Dr.Kothari of the patient’s mental state examination and no evidence of management or treatment. There was no evidence of a referral or assessment by a hospital doctor. It appears that the reception staff repeatedly issued medical certificates for 3-month periods with no assessment being made by a doctor. (PCT 108)
BW2838 -This 38 year old man presented with dysuria and haematuria on urinalysis on 29th April 2002. These findings, given the patient’s age, should have caused concern in relation to the possibility of bladder or kidney cancer. There was no evidence that Dr. Kothari had arranged any investigations and he had not arranged for an MSU sample. The patient was simply treated with an antibiotic. Further examination of the notes show that hospital letters some four years previously had suggested referral for further investigations for haematuria. There was evidence that the patient had failed to attend his hospital appointments, making it even more essential that the episode in April 2002 was taken very seriously. (PCT 109)
AG1005–
This patient was recognised as “grossly overweight”. She had been continuously
treated with fosinopril and Lasoride for control of her blood pressure. Lasoride is a combination diuretic
containing frusemide and amiloride. Since amiloride is a potassium-sparing
diuretic and Fosinopril is also likely to raise potassium, the two are likely
to have a combined effect on the blood potassium level. There was no evidence
of the patient ever having had a blood test to ensure this was not occurring. Despite the fact that the patient was being
treated for hypertension, the last recorded blood pressure reading was in 1994
(PCT 111).
TL1491–
This 49 year-old man presented on 4th March 2002 complaining of
palpitations. His blood pressure was
measured, but there was no record of further examination and no investigations
ordered. He was started on Propanolol
(seemingly 50mg b.d.), which was repeated on 20th May. There was no further evidence of examination
other than a record of blood pressure and no evidence of investigations or referral
despite the fact that the entry read “Still
palpitn” (Still has palpitations)(PCT 112).
35. Dr. Graves’ opinion was that each of these patients
had been put at significant risk because of inadequate monitoring. The level of his concern was such that he
considered reporting Dr. Kothari to the General Medical Council. In the event, the PCT had already taken this
action. Significantly, this was only
the second time in the course of his work as a medical advisor that Dr. Graves
had felt sufficiently concerned to contemplate this action.
AH and LF
36. The PCT relied upon the written statements of Mr.
Wilson Goodfellow, Community Nurse, (PCT 132-133) and Mr. Martin Limb, Speech
and Language Therapist (PCT136) in relation to their involvement with AH, LF
and Dr. Kothari.
Dr.
Graves’ third report (PCT 122-131) contained a review of the entire notes of LF
and AH .In summary there was clear evidence from the notes that LF suffered
from benzodiazepine addiction. Throughout the eleven years that she was
registered with Dr. Kothari, she repeatedly requested (and received on repeat
prescription) over four times the prescribed dosage of diazepam and twice as
much temazepam. This went on unchecked year after year. There was no evidence in the records that
Dr. Kothari reviewed this problem himself, or that LF was referred to, seen,
monitored or managed by a specialist Drug Addiction Team. Moreover, the
prescribing of diazepam continued despite a large entry in the records in 1995
stating that no more diazepam should be prescribed.
37. In Dr. Graves’ opinion there was evidence of further
inappropriate prescribing. Over a period of about two years, LF was repeatedly
prescribed Glyceryl Trinitrate, a drug used for angina caused by ischaemic
heart disease, and Burinex K and Lasoride, which are both diuretics usually
used to control heart failure. There were, however, no entries in the records
showing that LF had heart disease.
Likewise, there were no letters in the records from any hospital
suggesting that she had been seen and investigated by a hospital for heart
disease.
38. AH was born with congenital abnormalities as a result of which he had severe behavioural problems and developmental delay. Throughout his childhood he was prescribed sedating medications, including diazepam (Valium). In September 1987, his then general practitioner had written in the records in red biro that diazepam could be prescribed (5mg) as required. However, no prescriptions for diazepam were recorded in AH’s records thereafter. In 1991 AH, together with his mother LF, joined Dr. Kothari’s list. On the front cover of A’s notes was written “CARE [with] REPEATS”. Despite the complexity of AH’s problems there were very few entries in the notes made by Dr. Kothari, the vast majority of entries being repeat prescriptions recorded in a different hand.
39. In January 1993, when AH was aged 7, an entry in neat handwriting records the prescription of co-proxamol, which was repeated in May 1993. On neither occasion was there a reason given for requiring such medication, nor was there any evidence recorded that AH had been seen and assessed. This pattern of repeat prescription of co-proxamol continued for some 5 years without any assessment or indication given, despite the fact that co-proxamol is an inappropriate analgesic to prescribe to children without good reason.
40. In February 1994, AH was seen in the practice with burns on his left chest and back. The entry made suggested that AH was referred to the casualty department at the Royal London Hospital. There were, however, no letters from the RLH suggesting that AH had been taken there, and, further, there was no record of any follow-up by Dr. Kothari’s surgery.
41. On 23rd November 1998 it was recorded that A had a “burn on left foot”. The following day there was an entry in Dr. Kothari’s handwriting recording that the burn was said to be a scald from boiling water. There was no evidence that Dr. Kothari either considered referral or made referral of this matter to the Child Protection Committee.
42. We note that in the 11 years that AH was a patient of Dr. Kothari there were only 11 entries indicating that Dr. Kothari might have seen AH, most of which entries were so sparse and illegible that it was difficult to confirm that the child had actually been seen and examined.
43. We found Dr. Graves to be an impressive witness. His reports were thorough, cogent and well considered. In his evidence before us he was conscientious and fair. It was plain to us that he had thought long and hard about his opinions and had reached these with evident reluctance. He did not believe that Dr. Kothari could meet his recommendations even with a large amount of input. He told us that the only condition that could, in his view, be imposed in order to ensure patient safety would be if every single patient seen by Dr. Kothari was reviewed and assessed by a second doctor. The level of his concern in relation to the clinical care provided to patients by Dr. Kothari was such that he felt that Dr. Kothari would be required to undergo an absolute minimum period of three years re- training.
44. In the Notice of Appeal, and by his Counsel, the Appellant contended that the decision of the PCT to remove his name from the medical list was procedurally unfair in a number of respects. Firstly, Dr. Kothari was subjected to cross- examination by the panel members without any opportunity to first give evidence in answer to his own representative. It was contended that this was of particular importance given that English is not the Appellant’s first language. Secondly, Dr. Kothari’s representative was only allowed a brief opportunity to address the panel after all the evidence had been heard. Thirdly, it was contended that it was unfair that detailed criticisms were made of the expert evidence of Dr. Silk without him having been given a full opportunity to address and respond to those criticisms. In effect, it was submitted that the panel had not been interested in Dr. Silk’s evidence.
45. In our view it is unnecessary for us to express a view as to the fairness of the procedures undertaken at the panel hearing since our determination of the appeal is by way of re-hearing. Given that our function is to consider matters entirely afresh it was open to the Appellant to call Dr. Silk to give evidence before us. Dr.Kothari did not seek to do so, doubtless because he decided not to challenge the substantive findings of Dr. Graves. At the hearing before us Mr. Badenoch addressed us fully before examining Dr. Kothari in chief and had the opportunity to make further submissions following the conclusion of his evidence.
46. The main thrust of Mr Badenoch’s submissions on Dr. Kothari’s behalf was that the programme of steps originally advocated by Dr. Graves in order to bring Dr. Kothari’s practice up to acceptable standards was not acted upon by the PCT. It was submitted that the circumstances in relation to AH and LF acted as a catalyst and resulted in the PCT rushing to precipitate suspension so depriving him of the opportunity to demonstrate his willingness to change his practice. Further, it was contended that there was no evidence of actual harm having come to any patients and that Dr. Kothari could and should have been allowed to continue in practice subject to express conditions as an appropriate means of remedying the deficiencies in his practice and thereby safeguarding patients from potential risk.
47. We invited Mr Badenoch to formulate those conditions that it was contended would be appropriate and he submitted a draft for our consideration. These included that Dr.Kothari should:
· Recruit a new partner
· comply with the requirement to keep proper clinical notes
· complete transfer of all patient data on to computer in such manner as will enable retrieval of all individual and generic information
· draw up and conform to protocol for chronic disease management in respect of diabetes, hypertension, ischaemic heart disease, musculo- skeletal disease, neurological disease/disability, cancer, asthma, chronic obstructive pulmonary disease and the elderly.
· increase routine consultation time to ten minutes per patient appointment
· review the responsibilities of the practice nurse, publish a job description and ensure optimum use of her time and skill
· identify areas of necessary personal professional development and plan how to pursue it
· find a personal mentor to help with, and advise on putting these conditions into effect.
In our view the proposed conditions demonstrates, on the Appellant’s own case, the very fundamental and extensive nature of the necessary ‘overhaul’ required in order to remove any prejudice to the efficiency of the relevant services. We note that many of the matters referred to in the proposed conditions had been discussed and prioritised as long ago as September 2000.
48. We have taken into account Dr. Kothari’s long service as a single- handed General Practitioner in a large practice in an area of marked social deprivation. We have also taken into account that Dr. Kothari was faced with what must have seemed to him as an avalanche of modernisation. We accept, as did Dr. Graves, that it must have been extremely difficult for Dr. Kothari to embrace the changes expected of him. We also take into account the fact that Dr. Kothari, given his age and status in the community, found it particularly difficult to take on board the criticisms of his practice. Mr Badenoch urged us to accept that despite his initial reluctance to acknowledge the deficiencies in his practice, Dr. Kothari had now come to the realization that change was required. He also relied heavily upon the fact that Dr. Kothari had never been the subject of any complaints by patients, nor had he faced any civil or disciplinary proceedings.
49. We have had
the benefit of seeing and hearing Dr. Kothari give answers to his own advocate
and in cross examination. We regret to say that we formed the strong view that
Dr. Kothari showed no real insight into the wide-ranging and serious concerns
that have been placed before us in evidence.
Indeed, we consider that such acknowledgement that he made of the
deficiencies evident in his practice was token in nature. In many instances, it became apparent that
he did not, in truth, believe that his practice was deficient. It
was evident that he had difficulty in following many of the basic questions
asked of him and, at times, his answers were incoherent. He was unable to give a convincing account
of a diabetic review. He did not
consider that coma is a potential complication of diabetes. When asked what he
would do if a patient on a repeat medication would not attend for review, he
finally answered that he would ask the “nearest relative” to encourage
the patient to attend. He appeared to
have no inkling of the confidentiality issues raised. When asked about this, he said that by “nearest relative”
he meant that he would speak to the patient’s husband or wife because “they
have no secrets.”
50. Although it is true to say that Dr. Kothari had sought to belatedly introduce some limited changes to his practice as evidenced by the documentation he placed before us (Dl-28), we consider that these changes were minimal in the context of the very wide ranging concerns justifiably held in relation to his practice. One matter placed before us was the fact that Dr. Kothari had employed a medical student between December2001 and May 20002 to summarise patient records on computer. It was apparent, however, that Dr. Kothari was unable or unwilling to use his computer in any meaningful way. More importantly, it is, in our view, highly significant that since his suspension Dr. Kothari has taken no steps to undertake any retraining or to address his personal professional development, despite the fact that his knowledge and understanding of basic principles of medical practice, and of chronic disease management in particular, had been called into question. He told us that he had kept up to date during his suspension by reading ‘Pulse’ and ‘Medeconomics.’ It was apparent to us that he had no real appreciation of the profound level of re- education he requires. Further, we note that he had not taken any steps to find a mentor.
51. As indicated above we have taken into account the difficulties faced by some doctors, and the older doctor, in particular, in “the new age”. However, the deficiencies identified in this case were not limited to simple delay or difficulty in instituting clinical audit and other systems designed to further protect and promote patient health. Many of the criticisms made related to the failure to observe very basic principles of safe and acceptable practice such as:
· adequate examination of patients
· legible and adequate records of patient history, clinical examination, findings and treatment.
· appropriate review and follow up of chronic illness
· appropriate and safe systems in relation to repeat prescribing.
Sadly, the audits performed by Dr. Graves in April and August 2002 revealed real and serious deficiencies in every area identified above. Further, we do not consider that the “absence of actual harm” and/or the lack of a history of civil or disciplinary proceedings is an important factor in this case or when considering generally the ambit of Section 49F of the National Health Services Act 1977 as amended. The health, well being and safety of patients can be harmed by inefficient services in subtle and insidious ways that may well not become the subject of complaint or a claim for damages. If illustration be needed in this regard one need only look to the cases of AH and LF.
52. We accept Dr. Graves’ opinion that a minimum period of three years retraining would be required to bring Dr. Kothari’s practice up to acceptable standards. It seems to us that what would be required is not simply being ‘brought up to date’, but root and branch retraining. We do not consider that this is practicable not least because we have no confidence that Dr. Kothari would be willing or able to engage in such a programme given his lack of true insight.
53. We have come to the unanimous conclusion that this appeal must be dismissed. In our view the PCT were wholly justified in reaching their decision to remove Dr. Kothari from the list of general medical practitioners on the grounds that his continued inclusion in the list would be prejudicial to the efficiency of the services which those included in the list undertake to provide.
54. It was accepted by Mr. Badenoch that if removal from the medical list of Tower Hamlets Primary Care Trust was warranted, there were no logical reasons to justify Dr. Kothari being allowed to practice elsewhere on an NHS list. It seems to us that this concession was rightly made for the deficiencies identified do not relate to geographical locality or, indeed, the precise list upon which Dr.Kothari might seek to exercise practice. We therefore order that, pursuant to section 49N of the Health and Social Care Act 2001, that Dr. Kothari be disqualified from inclusion in
a) all lists referred to in section 49F(1)(a) to (e) prepared by all Health Authorities
b) all supplementary lists prepared by all Health Authorities, and
c) all services lists prepared by all Health Authorities under section 28DA above or under section 8ZA of the National Health Service (Primary Care) Act l997 (c.46), or any list corresponding to a services list prepared by any Health Authority by virtue of regulations made under section 41 of the Health and Social Care Act 2001.
55. We also direct that a copy of our decision shall be sent to the several bodies listed under Rule 47(1) of the Family Health Services Appeal Authority (Procedure) Rules 2001.
56. 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.
DATED this 2nd day of October 2003
Dr. Peter Leigh –Professional Member
Mrs M Frankel - Lay Member