IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY
CASE No: 11838
Miss ME Lewis - Chair
Dr P M Wray - Professional Member
Dr D Ratzer - Lay Member
Appeal heard on 16 August 2005 at Weymouth
JONG KEE CHO
SOUTH WEST DORSET PRIMARY CARE TRUST
Appeal by the Appellant under Section 5ZC of the National Health Services (General Dental Services) Act 1992 to the Family Health Services Appeal Authority (FHSAA) against the Respondent's decision to refuse to include him on the dental list
1. Persons present at the hearing were:-
Mr John (Jong) Kee Cho - Appellant
Mr N Peacock - Counsel instructed by Radcliffe Le Brasseurs
Mr R Creamer - Appellant's solicitor
Mr B Westbury -Dento Legal Advisor, Dental Protection Limited (DPL)
Mr B Johnson - Dento Legal Advisor, Dental Protection Limited
Mr A Wright - Primary Care Contracts Manager, South West Dorset Primary Care Trust (PCT)
Mr H Bellis - Consultant Orthodontist West Dorset General Hospitals
History of the Appellant's Appeal
2. By written application dated 1 March 2005 Mr Kee Cho applied to be included in the PCT's dental list. Mr Kee Cho provided the names of two referees:
(i) Jose Espeche Bretones. His reference dated March 2004 was retained on file by the PCT as it had been provided by Mr Kee Cho a year earlier when he had joined the Supplementary List.
(ii) Richard Marques, the principal dentist at The Bridges Dental Surgery where Mr Kee Cho was employed as an assistant dentist from March 2004 until March 2005.
3. By letter dated 11 May 2005 the DPL accepted that the reference given by Mr Kee Cho's former employer was not satisfactory.
4. The PCT sought further information, contained in:-
(i) A letter dated 18 April from Mr Bryan Sennett Dental Surgeon
(ii) A letter dated 15 April from Mr Hugh Bellis Consultant Orthodontist
5. By letter dated 20 April 2005 the PCT informed Mr Kee Cho that his application had been refused on three grounds.
(i) The PCT was not satisfied with the references
(ii) The PCT considered Mr Kee Cho to be unsuitable to be included
(iii) The PCT considered that Mr Kee Cho's inclusion would
be prejudicial to the efficiency of general dental services.
The PCT opposes the appeal on the grounds that the decision was not based solely on the basis of the two references, but also on the basis of the information in the letters from Mr Brian Sennett and Mr Hugh Bellis.
The National Health Service (General Dental Services) Regulations 1992 as amended by the National Health Service (General Dental Services) Amendment (No 6) Regulation 2001 and the National Health Service (General Dental Services Amendment Regulations 2002)
5 Za(i) The grounds on which a Primary Care Trust may refuse to include a dentist in the dental list under Regulation 5 are-
(a) that they have considered the declaration required by paragraph 5 B of Schedule 2 and any other information in their possession in relation to his application and consider he is unsuitable to be included in the list; and …
(c) that having contacted the referees nominated by the dentist in accordance with paragraph 11 A of Schedule 2 they are not satisfied with the references given;
(e) they consider that there are grounds to consider that admitting the dentist to the list would be prejudicial to the efficiency of the service which he would undertake.
6. Paragraph 11 A of Schedule 2 to the 1999 Regulations requires the dentist to provide the names and addresses of two referees who are willing to provide clinical references for the last two clinical posts where the employment lasted for a continuous period of at least three months, and where this is not possible, a full explanation and the names and addresses of alternative referees.
7. The same Regulations state:-
5 ZC (1) A dentist may appeal to the FHSAA against a decision of the PCT to refuse to include his name in a list pursuant to Regulation f (i).
(2) Such an appeal shall be by way of re-determination.
5ZD (9) On appeal the FHSAA may make any decision which the Health Authority could have made.
8. In reaching its decision the PCT should have regard to the guidance document 'Delivering Quality in Primary Care'.
9. At the commencement of the hearing, as a preliminary issue, we ruled on whether we should receive testimonials from Professor Zubeldia dated 20 July 2005 and Isabel Martinez Lizan dated 22 July 2005. Mr Wright only received these on 15 August 2005 and made objection by email to the FHSAA. We had not seen them. He submitted that an appeal was by way of a re-determination of an original decision based upon the information and documentation that was available to the PCT as at 19 April 2005. Mr Peacock submitted that, in re-determining the matter, we could look at information, which could have been provided at the time; otherwise it was not a re-determination on the merits but simply a review of the PCT decision. We could look separately at the reasons why, as he conceded the references were late. Mr Kee Cho had only returned from Korea the previous day following the death of his father. We agreed that that was a correct approach, followed in other FHSAA hearings and received the evidence.
10. We have considered all the documents submitted in the appeal bundle (marked “A” ) pages 1-27. These include the original refusal letter and initial representations to the PCT by the DPL asking for a re-consideration and further investigation of the matter.
11. In the Appellant's supplementary bundle (marked “B”) tabs 1-8 and pages 1-89 (including the two further references), we read the witness statement of Mr Kee Cho, Mr Johnson's report on his practice visit dated 27 June, various patient testimonials and the testimonial of Kerrie Osborne (dental nurse). Mr Kee Cho has translated dental books into Spanish (tab 5). He also included his CBD certificates (tab 6), practice documents (tab 7) and photographs of his current practice (tab 8).
12. As this was a re-determination Mr Wright opened his case. The PCT had not simply relied on the reference from Mr Marques, which as was conceded was not satisfactory. He was aware from Mr Kee Cho's letter of resignation from the Supplementary List that there was a disagreement between the two men. The letter from Mr Sennett raising concerns about an implant case was unsolicited. He had made some oral enquiries locally, including Mr Martin of the Community Dental Service, Mr V Ilankovan, Maxillofacial Surgeon at Poole District Hospital and to Mr Bellis at Dorchester Hospital. He followed that up with a letter to Mr Bellis inviting his comments dated 29 March 2005 as to the Appellant's suitability or otherwise for admission to the PCT's dental list, which we were given a copy of.
13. Mr Bellis attended and confirmed that he was the writer of the letter dated 15 April 2005 ( “A” page 18 - 20). He is also the Clinical Director and Postgraduate Dental Tutor for the West Dorset area. He and his colleagues had noted difficulties with Mr Kee Cho that they had not noticed with other practitioners in such short a time. Patients had commented on his poor communication skills and did not know why they had been referred. Mr. Kee Cho gave his opinion on the patient’s condition /treatment without understanding the full nature of the problem, or the circumstances regarding the patient’s clinical history. On several occasions he had given inappropriate advice/comments to the patients, making the patients extremely anxious and that had necessitated further explanation by hospital staff. Mr. Bellis and his colleagues had started to compile a dossier because if there were to be issues of continuing development and training he needed to have the evidence.
14. Mr Bellis specifically referred to five cases, two of which he clarified that he was directly involved in and another two through his colleague Mrs. Ellis. The fifth case of which he was aware was the same case referred to by Mr Sennett regarding a Mrs L, which resulted in total paraesthesia of the lower lip after implants were fitted by Mr. Kee Cho. Mr Sennett referred to Mrs L making a formal complaint to the General Dental Council (GDC) and starting legal proceedings. Neither party had received any formal notification that this had in fact happened. Mr. Bellis referred to another case where a woman who was dis-satisfied about restorative procedures carried out by Mr. Kee Cho was writing to the GDC. Again the parties had received no formal notification that she has in fact made a complaint.
15. Mr. Bellis had direct experience in the case of Mr H, who was an adult patient who had been referred for an opinion regarding an impacted maxillary canine. Mr Bellis pointed out that treatment of such a tooth using orthodontic means to pull it into the correct arch alignment was likely to take 18 months. The patient was informed of this option but was unwilling to wear fixed appliances for this period. Upon returning to Mr Kee Cho, he was given the alternative view that such a treatment would only take some 3-4 months, a time scale with which Mr Bellis, in is capacity as a consultant orthodontist, felt unreasonable
16. A further case concerned a private patient Mr Y, where Mr. Bellis was concerned on seeing the patient himself on a referral after Mr. Kee Cho had left the Practice, that his records were inadequate as was his treatment plan with inadequate initial x-rays taken. No follow up arrangements had been made when Mr. Kee Cho left the Practice and the hospital orthodontic service received a telephone call from the practice manager/receptionist to enquire how the patient could further be treated. This in itself was unuasual. Mr. Bellis was concerned that the brackets on the patient’s teeth were both inappropriately positioned and poorly cemented to the teeth. There was excess orthodontic cement around the teeth which had linked them together. Mr Bellis recalled that it had taken 45 minutes to remove the excess from the teeth prior to commencement of orthodontic treatment by himself.
17. When cross-examined, Mr Bellis clarified that his colleague Mrs Ellis had notified the other two cases to him, so he could not comment on those cases in any detail. In one case Mr. Kee Cho had disagreed with the treatment plan formulated by a consultant orthodontist and refused to carry out extractions. After Mr. Kee Cho left the Practice he was aware that two other Orthodontic cases had been referred to Mrs. Ellis although we were given no specific detail about those cases.
18. When cross-examined Mr. Bellis agreed that his concerns his concerns regarding aspects of Mr Kee Cho’s treatments might be addressed by an Adverse Risk Management Programme (ARM) which was offered by Dental Protection Limited.
19. Mr Kee Cho adopted his statement dated 29 July 2005. He obtained his first dental qualification in Korea in 1981. He obtained a Masters degree in implantology in 1984, also in Korea.
20. Between 1984 and 1989 he worked as a dental surgeon in Spain. During cross examination it emerged that he had worked in Spain without being licensed by the Spanish Registration Authority, not with the benefit of any insurance cover. He only started to study in 1994 and obtained his Lic Odont from Barcelona University in 1999.
21. Mr Kee Cho moved to England in 2004 and immediately started to work as an assistant to Mr Marques from March 2004 until March 2005. Mr Kee Cho highlighted a number of disputes that arose between them, mainly as to the long hours that he was working, his level of remuneration and the level of surgery equipment provided. He had spent the first few weeks at the Wyke Regis Surgery where Mr. Marques was based but after that was on his own at The Bridges Dental Surgery. There was a practice meeting every Wednesday, where the dentists working for the practice met but he stopped attending as he did not find them useful professionally. He felt they were social occasions and he was tired after a long days work and wished to go home. Mr Kee Cho thought that despite their unsatisfactory working relationship his employer would nevertheless give him a fair and objective reference. He was therefore very surprised to read the very negative reference written after it had been submitted to the PCT. In examination in chief he described how he had gone to collect his own personal instruments and property from the practice when he terminated his employment unilaterally. He was very surprised when the police came to his house some hours later to request the return of some items to the practice. We noted the additional note about this matter in Mr Marques' reference.
22. Mr. Kee Cho was asked to comment specifically on Mr. Marque’s reference. He said that he had never discussed cases with Mr Marques. Once he stopped going to the Wednesday meetings, there was no personal contact and any communication was through the Practice Manager. He wished to develop his implantology practice and he was promised an opportunity to develop this, which never materialised. He denied that his work in implants was atrocious as claimed. He accepted on two occasions he was very upset and unable to attend work. Patients had not suffered as the nurse had cancelled them. He denied he had taken unauthorised time. He denied that he had ever wept or was given to emotional outbursts as claimed. It was nonsense to say that he was ill prepared and had no self discipline and lacked commitment to his patients as claimed.
23. Commenting on Mr. Bellis’s evidence with regard to Mr Y, he had left the Practice suddenly so had not been able to make adequate hand over arrangements. With regard to the case of Mrs L which resulted in total paraesthesia of the lower lip, he said that he should have done better but did not elaborate further. He was not aware that she or the other patient who Mr. Bellis thought was being referred to the GDC, had in fact made a complaint. GDC. He believed that she had been given a proper estimate for the work that he was to carry out. He recalled discussing the case regarding the conflict of views regarding orthodontic extractions with Mrs Ellis. Mr Kee Cho accepted that his level of English was developing and that it was possible that patients may at times have not fully understood him although he maintained that he had always fully explained the reasons for referral to them.
24. Mr. Kee Cho said he was willing to undertake a Risk Assessment Programme devised by DPL and which would highlight areas requiring attention, appointing an advisor such as Mr Johnson or similar and follow up assessment reports. He had never met with anybody from the PCT, including after his application to join the list was rejected
25. When cross-examined by Mr Wright he said he had accepted everything that Mr Bellis had said. He had worked for 10 days at Wyke Regis practice and thereafter was never visited by Mr Marques. Five more dentists worked at the Wyke Regis practice although he worked by himself. He was not aware of any internal complaints made at the Bridge Lane practice against him He was assisted by a NHS nurse with 20 years experience, who had helped him to understand NHS procedures. He met with a dental practice advisor once. He worked for Mr Bretones for six years. He had not been on any courses aimed at developing his knowledge of current National Health Service Regulations.
26. Mr Johnson attended and adopted his report at Bundle B (tab 2). He visited Mr Kee Cho for three and a half hours. He did not see any patients treated. He found no difficulty with Mr Kee Cho's use of English although he found it easier to understand the longer he was with him. He outlined an Adverse Risk Management (ARM) programme. It was not uncommon to involve the PCT in such a programme and it was usually with the PCT’s Dental Advisor.
27. In the Appellant's bundle B were a number of practice documents (tab 7) and photographs (tab 8). Mr Johnson had commented upon the very high calibre and high cost of Mr Kee Cho's equipment which he felt to be excellent and exceeding most of that which other practitioners in the local area would have. Mr Wright confirmed that the quality of Mr Kee Cho's equipment or premises were not in issue.
28. When questioned by Mr Wright, he confirmed that about 150 dentists nationally are currently involved in an ARM programme. A programme would be tailor made to each individual dentist depending on his or her need. That need would be assessed according to the level of risk and the premiums set accordingly by the DPL. The DPL and the PCT essentially and eventually had the same goals. Mr Wright clarified that he had had no personal local experience of such a scheme.
29. An issue arose as to why in the practice brochure Mr Kee Cho described himself as B.DS 2004 when he had in fact graduated Lic Odont in Barcelona in 1999. It was agreed that he should have listed himself in line with his GDC registration. Mr Kee Cho agreed to alter his practice brochure and to record his qualifications in line with his GDS registration. He agreed that the “Practice General Information” which described him as having completed his training in Korea and training again at the University of Barcelona was correct but that he should not have described himself as having had 'specialist training in orthodontics at the University of Barcelona in Spain'. He agreed to delete that reference and re-print the brochure. He also agreed that the text used in information given to patients would be vetted and approved by DPL as part of the ARM programme.
30. Mr Wright submitted that the PCT had not rejected the application on the basis of two references. It had made other enquiries and had received an unsolicited letter from Mr Sennet and a letter from Mr Bellis. The PCT had to attach more weight to the views of local clinicians who had recent experience of working with Mr Kee Cho and were familiar with local NHS practice. Given the level of concern, no other decision could have been made. He had heard no evidence at the hearing which would cause the PCT to alter their position. If we did not impose a national disqualification it was open to the Appellant to reapply and show that he had remedied earlier concerns.
31. Mr Peacock submitted that there was no evidence about unsuitability. Whilst there was no hard and fast distinction, ‘efficiency’ generally went to competence and performance and ‘suitability’ to personal characteristics such as probity. The Appellant had volunteered that he had practiced in Spain without an appropriate qualification. However he had satisfied the PCT and the FHSAA that he had an appropriate qualification, which was transferable, and as a national of Spain he did not have to undertake vocational training. It would not be possible for us to impose conditions if we found against him on grounds of suitability. However we could impose conditions if we had concerns about his proficiencies, which could be remedied by a remedial programme. It was extraordinary that the PCT had not properly investigated this possibility. Mr. Peacock outlined the “safeguards” that would be in place. The PCT could review a conditional inclusion. A new NHS contract is proposed to all dentists within the PCT in April 2006 when the operation could be reviewed. Mr Kee Cho had said that he would not offer orthodontic work and would amend the practice literature. Mr Kee Cho would be required to inform the PCT within 7 days if he received notification of a complaint to be handled by the GDC. He had provided two acceptable clinical references. Mr Marques was not here and we should adopt a considerable degree of caution in accepting a written letter/reference not substantiated by oral evidence or subjected to cross-examination.
Conclusions and Reasons
32. We do not find the refusal on the 'suitability' ground made out. We remind ourselves that the overlap between that and 'efficiency' is not marked. 'Unsuitability' could be held to relate to decisions taken as a consequence of the actions of others or the lack of something tangible relating to a person's ability to undertake his role, which could include qualifications, experience, or essential qualities. We find no clear evidence that would allow us to reach that conclusion. It is common ground that the police were called after Mr Kee Cho left Mr Marques' practice but we were not made aware that this matter went any further. The goods, claimed by Mr Kee Cho to be taken inadvertently, were returned.
33. This is not a case where we can now say that we are fully satisfied with the subsequent reference material provided and the explanation for not relying on a reference from the most recent clinical position, such that is the end of the matter. The reference from Mr Bretones was accepted by the PCT at the time of his application to join the Supplemental List in March 2004. However, we find the evidence he provided was rather 'thin'. It gives little detail. He stated that he had known Mr Kee Cho for a year whereas Mr Kee Cho said that he had worked for him, albeit only a day a week for six years.
34. We accept that the reference from Professor Zubeldia is based on solid experience of Mr. Kee Cho, including him being a clinical lecturer during 2001/2002 and working in his private practice for five years from 1998 to 2003. He had known him since 1994 when he had entered the school as a student. He referred to his wide knowledge of almost all fields of dentistry but particularly in periodontal surgery and implantology.
35. However we still have outstanding concerns as to Mr Kee Cho's efficiency which is why we think this is an appropriate case to impose conditions. In reaching that conclusion we have balanced a number of factors.
36. The factors in Mr Kee Cho's favour are that he qualified over 20 years ago. Albeit without registering, he has worked in practices in Spain from 1984 onwards. He has translated a number of dental text books from a well-respected publisher into Spanish. He is clearly a capable linguist. He accepted that his English, especially when he first arrived in the United Kingdom needed to be practised. Having heard him we would agree. We can see how a patient, especially when anxious and in the context of a short discussion might have difficulty in understanding him. However, this will improve with increased practise and can only get better. Patients can be assisted by clear Practice literature of the sort we note has now been prepared.
37. We note in the reference Mr Marques offered to substantiate his views through other witnesses. We were not made aware that there were complaints raised by other members of Mr Marques' Practice.
38. We attach some weight to the reference of Mr. Marques who was the most recent employer and a local Practitioner known to the PCT. During the hearing we observed that Mr. Kee Cho could become emotional. He could be volatile. At times he did not seem to want to engage in discussion of adverse comment on him, simply commenting that for example that Mr. Bellis must be right and had made up his mind about him. However the weight we can attach to this reference is limited, as Mr Marques was not spoken to further by the PCT to elaborate on his views. We do not know when Mr. Marques first became aware of concerns about Mr. Kee Cho’s clinical work and what steps if any he took to remedy them. We felt surprised at the lack of guidance for National Health Service Regulations which Mr Kee Cho had been given, when he joined his new practice. Usually these are covered as part of the year long Vocational Training but those dentists from abroad who practice as assistants do not get any direct information. We felt that perhaps the PCT’s dental advisor would be the best person to visit assistants, possibly after 2 months in practice. It is clear that there was a falling out between the two men. Mr Kee Cho had made plain his case, namely that the reference was motivated by malice. That in itself is a serious allegation to make against a fellow professional but Mr Marques had no opportunity to comment on that.
39. We attach weight to the evidence of Mr Bellis, which we found fair, measured and objective. Mr Bellis could not comment on Mr Kee Cho's clinical abilities outside orthodontics or his experience of working in the NHS as a general dental practitioner. Mr V Ilankovan consultant oral and maxillofacial surgeon and the Community Dental Officer did not record any such concerns when consulted. The level of concern registered by Mr. Bellis and his colleagues is of note but was not at a stage nor in a form, which allowed us to conclude that there was an unacceptable risk which was not capable of being remedied or reduced to an acceptable level. We find no evidence to support Mr. Kee Cho’s comment in cross examination that Mr. Bellis had made up his mind about him.
40. We were of the view that it was on balance possible, that Mr. Kee Cho had misunderstood what could be achieved under NHS practice. Mr Kee Cho came close to accepting that practice in Spain, particularly of orthodontics was very different. We thought it was relevant that he had not heard of the IOTN (Index of Treatment Need) for orthodontic intervention which is currently the standard used within the UK.
41. We further take into account that no other complaints were made to the PCT. We heard that two complaints were to be made to the GDC, both of which involved dental implant work. If the two complaints referred to in the letters of Mr Sennett and Mr Bellis go further and are made, then Mr Kee Cho will be under an obligation to notify the PCT within seven days of receiving those complaints.
42. In the light of that analysis we think it is appropriate for conditions to be imposed. Our concerns would be considerably lessened if Mr Kee Cho were joining another practice to work closely with an established principal who was working in the same practice. We would expect the PCT to keep this case under close review.
43. In summary, whilst we have concerns, on balance we are satisfied that Mr Kee Cho should in effect be given an opportunity to prove himself. It maybe that at times he has been too self-promoting and given to embellishment. However, that is not a sound reason for doubting his clinical competence. Mr. Kee Cho agreed to do a number of things, which we record as the basis on which we make our Order. If he does not, then no doubt the PCT and DPL will take that into account when reviewing his progress and making an assessment.
It is recorded that Mr Kee Cho agreed:
1. That he will not carry out orthodontic treatment under National Health Service Regulations and any such patients needing orthodontic intervention be referred to a suitable colleague or consultant orthodontist who is willing to undertake such treatment for the benefit of the patient.
2. That he will amend his practice brochure and “Practice General Information” accordingly. In the latter he accepted that he was currently wrongly described as having had 'specialist training in orthodontics at the University of Barcelona in Spain'. He agreed to re-print both documents.
3. To record his qualifications in line with his GDS registration.
44. Our order is that the Appeal is allowed pursuant to 5ZC and that Mr Kee Cho be included on the dental list of the South West Dorset Primary Care Trust subject to his undertaking that as soon as reasonably practicable/alternatively forthwith to follow an Adverse Risk Management programme devised and implemented and monitored by the Dental Protection Limited in conjunction with the Primary Care Trust’s Dental Advisor.
45. We direct that a copy of this decision be sent to the persons and bodies referred to in Regulation 47 of the Family Health Service Appeal Authority (Procedure Rules) 2001.
46. Finally, in accordance with Rule 42 (5) of the Rules we hereby notify that a party to these proceedings can appeal this decision under Sec 11 Tribunals & Inquiries Act 1992 by lodging notice of appeal in the Royal Courts of Justice, The Strand, London WC2A 2LL within 14 days from the date of this decision.
Dated this day of 2005