IN THE FAMILY HEALTH
SERVICES APPEAL AUTHORITY
Case
No: 12359
Mr J D Atkinson CHAIRMAN
DR S SHARMA
PROFESSIONAL MEMBER
MR M RAYNER MEMBER
Between
Dr DEV DUTT
Appellant
and
HUDDERSFIELD CENTRAL PRIMARY CARE TRUST
Respondent
Representation:
For the Appellant: Mr
S Stevenson of Counsel
For the Respondent: Ms
M Print of Bevan Brittan Solicitors
DECISION AND REASONS
The Appeal
1. This is an
appeal by Dr Dutt against the decision of the respondent dated 10 February 2006
to remove him from the respondent’s medical performers list under the Health
Services Act 1977 (as amended) and associated regulations.
The Proceedings
2. The appellant
commenced work as a GP in Huddersfield on 14 February 1970. On April 2004 the
new General Medical Services came into force under which the appellant provided
general medical services to the respondent.
3. On 4 February
2005 the appellant was suspended from the respondent’s performers' list. On 3
May 2005 the suspension was extended. On 13 September 2005 the Family Health
Services Appeal Authority (FHSAA) granted a further extension. On 15 and 16
December 2005 and 20 and 27 January 2006 the respondent conducted a removal
hearing attended by the appellant and his legal representative.
4. On 10 February
2006 the respondent decided that the appellant should be removed from its
performers list. The reasons given for removal may be summarised as follows:
i.
the appellant had provided inappropriate clinical care and clinical
management to patients
ii. the appellant
had prescribed inappropriately
iii. the appellant’s
record keeping and management was poor
iv. the appellant’s
practice was financially unstable
5. On 9 March 2006
the appellant appealed to the Family Health Services Appeal Authority. Appeals
to the FHSAA are by way of redetermination.
6. By skeleton
argument as amended in the course of the proceedings the respondent submitted
that, for the purposes of the present appeal, the basis for removal was
confined to grounds of an efficiency case because
i.
the appellant had provided inappropriate clinical care and clinical
management to patients
ii. the appellant
had prescribed inappropriately
iii. the appellant’s
record keeping and management was poor
The
Law
7. The relevant law
is to be found in the 1977 Health Services Act as amended together with associated
regulations. Extracts of the relevant law as set out in The National Health
Service (Performers Lists) Regulations 2004 may be summarised as follows:
Regulation 10(3) and (4)… a
primary care trust may remove a performer from its performers list where… his
continued inclusion in its performers list would be prejudicial to the
efficiency of the services which those included in the relevant performers list
perform.
Preliminary
matters
8. The appeal was
originally set down for substantive hearing on 9 June 2006. The appeal was not ready for hearing by that
date and the Panel in consequence issued directions, the full details of which
need not be set out here. Amongst other things, the Panel gave permission for
the late submission of further evidence from a number of witnesses, and
decided, with the consent of the appellant, not to give leave for a statement
and hear oral evidence from Ms Priestley, the practice nurse.
9. At the outset of
the substantive hearing Mr Stevenson on behalf of the appellant made further
application for leave to adduce evidence from Ms Priestley. The application was
refused because there were other witnesses who would be able to give evidence
on the relevant matters.
The
documents and evidence considered
10. The appellant and respondent
submitted originating documentation, which was compiled into bundles marked A
and R respectively.
11. For the hearing, the
appellant filed 2 bundles indexed to tabs 24 and 20 respectively.
12. For the hearing the respondent filed 2 bundles, indexed and
paginated through to page 865. In the course of the hearing the Panel, with the
consent of the parties, directed that pages 346 to 352 of the bundle be removed
and they were not considered further.
13. In addition, in the course of the hearing the Panel gave leave to
both parties to file further evidence as set out in a schedule, indexed A to P,
the contents of which need not be set out here.
Oral
Evidence on behalf of the respondent
14. The Panel heard oral evidence on behalf of the respondent from Dr
Shamsee, Ms E Scott and Ms L Ricketts. They each adopted as evidence in chief
their statements filed in accordance with the Panel’s directions of 9 June
2006. They were examined, cross-examined and re-examined. Relevant extracts of
their oral evidence may be summarised as follows.
15. Dr Shamsee said that he had
produced his statement of 22 June 2006 based on examination of each of the
records of the patients referred to in his report.
16. Patient B, a child 3 years
of age had been prescribed 17 prescriptions in 2 years. That was excessive
unless the child had a pre-existing medical condition which compromised the
immune system. There was no such condition evidenced in the patient’s notes. In
13 of the 17 prescriptions no clinical condition was ascribed and no discernible
clinical findings on examination noted. There was no evidence of any other
investigations having been carried out, there were no clinical details noted,
no examination findings and no management plan.
17. Patient C, a 45 year old
woman complaining of heavy blood loss, had a haemoglobin count on presentation
of 10 which was within the anaemic range. An examining GP should have taken a
full history and offer an examination with a chaperone. In the absence of
significant findings on examination and in the history such a patient should
start taking iron. In addition tranexamic acid together with mefanamic acid
should be offered. When taken in
combination they have a synergistic affect thereby reducing menstrual blood
loss. The patient should then be reviewed in 2-3 months time with a full blood
count. On review, if the patient’s count has worsened a referral should be made
to a gynaecologist.
18. In patient C’s case, initial treatment in August 2003 was
appropriate. However, the appellant did not undertake a repeat full blood count
to monitor the patient’s progress. The patient's notes have entries for August
2003, September 2003, June 2004, September 2004 and October 2004. The entry for
16 October 2004 did not record the appellant’s condition, findings, treatment,
diagnosis or management plan. There was a note of a referral to a
gynaecologist.
19. On admission to hospital,
patient C was recorded as having a haemoglobin
level of 4. In those
circumstances it is likely that the patient would be lethargic and fatigued in
carrying out the activities of daily living. There are no notes of a review of
the patient following her discharge from hospital. The patient had been
transfused but had a haemoglobin count of 9.6 which was still within the
anaemic range.
20. Patient E was a 55 year old
man who had taken an overdose of prothiadin in 1999. Prothiadin is an old
fashioned treatment for depression and, at low doses, for insomnia and chronic
pain. In 1999 the British National formulary (BNF) noted cardiovascular side effects
and recommended use with caution where there was a cardiac history. In 1994 the patient had been admitted with
heart failure. Dr Shamsee would not have prescribed prothiadin in this case.
21. The medical notes at pages
576 appear to indicate that on 12 October 1998 patient E was prescribed
prothiadin 50 x 50, with one to be taken at night, however the prescription,
although said to be for one month appeared to provide treatment for 2 months.
The notes made after the patients overdose do not record whether or not the
patient was suicidal. They should have done. The records did not contain a
letter referring the patient to psychiatric services. The patient was
subsequently given a prescription of dothiepin by a locum. Dr Dutt as the
locum’s principal had clinical responsibility for the patient and should have
followed the patient more closely. Such follow up is more difficult without a
computer system.
22. Patient E’s treatment for
sciatica was unacceptable because of his history of heart failure and use of alcohol.
In such circumstances the use of anti- inflammatories is not good practice
because of the risk of water retention with a risk of precipitating heart
failure. Dr Shamsee would not expect 2 anti inflammatories to be used
concurrently.
23. Patient G was an 82 year old woman with a number of conditions.
There is a National Standards Framework (NSF) which sets the gold standard for
GPs in treating chronic heart disease. This patient had chronic heart disease
but, contrary to the NSF, was not formally reviewed between 2002 and 2005.
Without such a review it would be difficult to identify the extent of any
deterioration in the patient’s condition. There is no treatment plan in the
notes save for a reference to Diltiazem.
24. The entry in the notes for
12 July 2001, when the patient complained of shortness of breath, does not
indicate that a satisfactory examination was undertaken. The patient had a
history of breast cancer and lymphoma. Without tests and detailed examination
it would be difficult to know the cause of the shortness of breath.
25. The appellant’s diagnosis
of asthma raised a number of issues. Diagnosis should be on the basis of serial
peak flows or spirometry. The notes do not show that the diagnosis was made on
that basis.
26. The notes indicate that patient
was diagnosed as asthmatic and also given beta blockers. Beta-blockers are a
contra indicated treatment in asthmatic patients because they reduce the
airways. The BNF guidance indicates that beta blockers may be prescribed in
such circumstances where there is specialist supervision. In this case there was no such supervision.
27. Patient J was a 77 year old
woman. The notes indicate that initially she was appropriately diagnosed and
treated for an overactive thyroid. However, subsequently there was no medical
review of her condition. The patient continued to be hyperthyroid despite
initial treatment. She therefore was at risk of palpitations, atrial
fibrillation and osteoporosis. The patients clinical management was absolutely
unsatisfactory.
28. The notes of patient L1
failed to indicate that the patient could not be re-called for x ray.
29. In patient L2’s case a
consultant physician on 26 March 2004 noted that a further x ray should be
undertaken within a period of about 6 weeks The notes do not indicate any
action being taken on that until 10 months later in February 2005, when the
locum spotted the omission.
30. In respect of patient K,
there existed a shared care protocol which required the appellant to take
responsibility for monitoring the patient.
31. Relevant extracts of Ms
Scott’s oral evidence may be summarised as follows. As Assistant Director Ms
Scott made arrangements for the administration of the practice following the
appellant’s suspension. Certain
arrangements were necessary because, following the appellant's suspension, he
had given staff one months holiday. Ms
Scott also made arrangements for locums for the practice. She had not issued
any instructions relating to moving papers into the staff toilet area. Ms Scott
attended at the reception area in December 2004 and on 27 July (sic) 2005 when
papers stored in the toilets were being boxed. She also attended the consulting
rooms on one occasion. From her own observations she noted 21 boxes were
removed the consulting room and 50 from the toilet area.
32. Ms Scott took photographs
of conditions in the staff toilet [exhibited at page 495 onwards of the
respondent’s bundle] when the boxes were moved in June (sic) 2005. At one stage
2 locums were appointed to enable them to deal with surgeries in tandem.
33. Relevant extracts of the oral evidence Ms Ricketts may be
summarised as follows. Ms Ricketts is a practising pharmacist and has been a
pharmaceutical adviser to GPs for 10 years.
34. Graph C at page 418 shows
the appellant prescribed 73% of antibiotics from a predefined list. The
nationally accepted rate is 85%. The variation cannot be explained by the
population characteristics of the appellant’s patient's list.
35. Graph B at page 445 shows
that following the appellant’s departure the
prescribing of generic antibiotics was 86%.
36. Graph I at page 430 shows
the appellant to be prescribing modified release premium price preparations on
a weighted patient unit cost of over £3.00 whereas the target is below £1.00.
It is accepted that the prescribing of modified release preparations are a
matter of clinical discretion, however it is not necessary to use the most
expensive brands.
37. Since the appellant's
departure there has been a reduction in the patient population, but such
changes have no significant effect on the information presented because the
measures are weighted to take account of population characteristics such as age
and sex. It is not possible to use the population statistics identified by Mr
Hughes at page 473 as a comparator to
the PACT data because they are compiled on a different basis. On the PACT data
there is a reduction in the patient population of 70 out of 1770. Such a change
would not make a significant difference to the data analysis.
38. Whilst in practice, the
appellant had been made numerous offers of support by Ms Ricketts. She had
written offering support following discussions with the appellant, however no
response was received. As well as
following up with a letter Ms Ricketts' secretary made telephone calls to the
practice and left messages with the receptionist.
Oral
evidence on behalf of the appellant
39. The appellant, despite having produced a written statement filed
with the intention of it being adopted as evidence in chief, decided not to
give oral evidence.
40. The Panel heard oral
evidence on behalf of the appellant from Dr Ahmed, Mr Jepson and Dr Ullah. They
each adopted as evidence in chief their
statements filed in accordance with the Panel’s directions of 9 June
2006. They were examined, cross-examined and re-examined.
41. Relevant extracts Dr
Ahmed's oral evidence may be summarised as follows. Dr Ahmed began work as a GP
in 1988 and has known the appellant since then. Dr Ahmed was out of practice
for two years from 1996 because of difficulties with the GMC. He retired in 1999.
42. Dr Ahmed takes issue with the analysis of Ms Ricketts relating to
the appellant's generic prescribing rate of 44% compared to the rate following
his suspension of 70% and the inference that such figures show that the
appellant's prescribing is not cost effective. In particular the link has not
been made between lower generic prescribing being equated with higher costs.
Computerisation facilitates generic prescribing. The appellant tried to
computerise his practice.
43. Dr Ahmed is aware that the
appellant attends medical meetings and keeps up to date.
44. In compiling his statement
Dr Ahmed had consulted with the appellant.
45. As far as patient B is
concerned the notes record entries of a diagnosis of UTI and a letter from the
patient's mother suggests that a management plan was agreed. It is difficult to
distinguish between bacterial and viral infections and in some cases
antibiotics might be prescribed because viral infections can lead to secondary
bacterial infections. The letter from the patient’s mother says that the
patient is vulnerable to upper respiratory infections. Without the antibiotics
the patients illness would be prolonged.
46. As to patient E, prothiadin
is not old fashioned but recent indications are that its use should be
discontinued. In 1999, however, it was a well established treatment. The appellant had not prescribed the dose of
prothiadin which the patient had taken in overdose. The BNF 51 for March 2006
does not indicate that prothiadin is contra indicated where there is a history
of heart failure. The subsequent prescription of prothiadin was appropriate if
prescribed with caution.
47. In the case of patient L1,
the appellant had noted that the patient was away in China. It was not
necessary to make a referral because in Huddersfield it is possible for a
patient, with an appropriate referral card, to be x rayed on the same day as
presentation at the hospital.
48. In the case of patient L2,
she was in a nursing home receiving palliative care and would not be offered
treatment to cure any disease. The request that the patient be x rayed had been
sent to Dr Fox, and not to the appellant.
49. Dr Ahmed was aware that the
appellant had arthritis because he was the appellant’s GP. Dr Ahmed had not
been practicing as a GP continuously. He had been removed by the GMC in
February 1997 and re-instated in May 1999 based on a conviction for fraud in
1996. Dr Ahmed in compiling his statement had relied on photocopies of the
medical notes. He was given a version of the appellant’s statement in an
electronic format and had used in his own statement passages from that document
and with which he agreed.
50. Extracts of the oral
evidence of the practice manager, Mr Jepson may be summarised as follows. The
premises of the appellant’s practice are very small. There were always problems
with storage. Requests had been made to the respondent to assist, but it had
not come about. The major protocol in the practice was the receptionist
protocol as set out at tab 11 of bundle 2 dated August 2002.
51. There are no regular
clinics for cholesterol, hypertension and other such issues. The chronic
disease management system was reviewed by the practice nurse before Mr. Jepson
began working at the practice. Mr
Jepson persuaded the appellant to computerise in December 2004. The appellant
had previously had use of the VAMPS computer system but had experienced
problems with it. The appellant had discontinued its use some years before Mr
Jepson began at the practice.
52. The practice used a
referral diary to record referrals made to secondary care. The appointment
system was made on loose-leaf sheets. In addition a handwritten list of
patients was prepared for each surgery.
53. Many items that required
storage were moved into the staff toilets. Over the years there was an
accumulation of items that were no longer needed at the premises. The papers
were moved into the staff toilet at Mr. Jepson's initiative in response to the
proposed QOF visit and with a view to reducing the clutter. The consulting room
contained 18-20 archive boxes of the appellant’s personal papers. Accessibility
within the room was reduced to a pathway of about 18 inches between the boxes.
Originally only the appellant’s personal papers were moved into the staff
toilet, but various other items were later moved in there.
54. The loose-leaf appointment
records were kept on an open shelf in the receptionist area and then archived
annually. There is no formal system for recording occasions when a patient does
not attend for an appointment. Data on chronic disease management are held on computer
spreadsheets.
55. Relevant extracts of the
oral evidence of Dr Ullah may be summarised as follows. Dr Ullah retired from
practice in 2004. He keeps up to date with medical matters.
56. In respect of patient C,
given the range of reliability of laboratory tests, it is not the case that a
haemoglobin score of 10 would necessarily require investigation. In the context
of someone experiencing heavy bleeding, it would be kept under review. In this
case the patient had refused to undergo blood tests. Where a person records a
haemoglobin of 4 and is of West Indian origin recognition of a condition would
be difficult because of the colour of the mucus membrane which varies from
person to person.
57. At this point in giving
evidence, Dr Ullah began reading entries in the medical notes for 29 October
2004, in the course of which he indicated that he was unable to read some of
the remarks. He could find no entry in the notes of the patient refusing to
have an examination, however he said that he had interviewed the appellant who
had told him that the patient had refused to consent to examination. The
appellant had taken appropriate action by making a referral which was evidenced
by the patient’s account in her letter of complaint. It was not reasonable to
suggest that the patient had not been followed up. It was also debatable as to
whether or not blood tests should have been carried out by the appellant
because clinically they may not have assisted in making a diagnosis.
58. In relation to patient G,
it is not the case that the use of beta blockers are always contra indicated in
patients with asthma. It is a question of whether the benefit outweighs the
risk involved in such cases.
59. In the case of patient J,
the appellant had correctly diagnosed the patient’s thyroid condition and
treated it appropriately. In the course
of his oral evidence about patient J, Dr Ullah referred to entries in the notes
relating to the year 1988. Dr Ullah indicated to the Panel that he was unable
to read them.
60. In the case of patient K
there was no written protocol as to who should take responsibility for
monitoring the patient.
The
Respondent’s submissions
61. Ms Print, on behalf of the
respondent, relied on her skeleton argument and made a number of further
submissions that may be summarised as follows. This is an efficiency case under
the performers regulations. Regulation 11(6) sets out the mandatory matters to
be taken into account in such circumstances. Those matters can include issues
relating to record keeping and the availability of support for such activities.
62. In general terms
inappropriate clinical care may arise by act or omission where patients are not
systematically reviewed and where there is a lack of initial diagnosis, follow
up and audit.
63. In relation to the clinical
care and management of specific patients the following matters were evidenced
i.
Re patient B who had been prescribed 17 course of antibiotics in 2
years, there was no diagnosis of a pre-existing condition which would give rise
to such a high prescribing rate. The appellant in the notes had used the
abbreviation UTI. This is a common abbreviation for urinary tract infection,
however it was said in evidence that it stood for upper respiratory tract
infection. In such circumstances a locum would have difficulty providing
appropriate continuity of care. The notes failed to record a management plan
and made no distinction between self-limiting and viral infections.
ii. Re patient C,
who had been anaemic, the appellant had failed to undertake a simple diagnostic
test, such as the eyelid test, and had not shown evidence of a clinical
curiosity in the patient’s changing presentation. Following the patient’s
discharge from hospital, the appellant had failed to review her condition or
put in place a management plan. The medical notes were so poor that the
appellant’s witness, Dr Ullah, who had had the advantage of reading the notes
at his leisure and with the benefit of interviewing the appellant, had
struggled to read aloud the notes before the Panel. The notes failed to record the
appellant’s claim that the patient had refused to undergo an intimate
examination.
iii. So far as
patient E Is concerned, it was accepted that the evidence was contentious,
however the evidence of Dr Shamsee should be preferred to that of the other
witnesses. The notes did not indicate
any post overdose follow up. The repeat prescription of the same drug used in a
suicide attempt demonstrated a lack of reflective practice. The use in
combination of 2 NSAIDs put the patient at risk because of a pre-existing heart
condition.
iv. The records of
patient G indicated a lack of consistent record keeping. There was no
documented evidence of appropriate management of the appellant’s condition. The
BNF guidelines were clear that those with a diagnosis of asthma should not be
offered atenolol save under the supervision of a specialist. The case as a
whole demonstrated a lack of reflection on the part of the appellant
particularly given the patient's history of cancer.
v. The records of
patient J speak for themselves. The patient was hyperthyroid for a 16 year
period yet her treatment dosage remained the same despite thyroid functions
test indicating her being as hyperthyroid and requesting her drug treatment to
be monitored. The treatment offered gave rise to an underlying risk of atrial
fibrillation, osteoporosis and CVA, given her elevated cholesterol. The medical
notes do not record the patient as indicating that the elevated cholesterol
would be treated by way of diet.
vi. Entries on
patient’s L1’s record were undated. There was delay in arranging a follow up x
ray given the timescales requested for follow up.
vii. In respect of
patient L2, x rays should have been obtained to rule out any sinister cause of
the patient’s presentation. There is no note in the records indicating that the
patient’s family did not wish for medical issues to be followed up. However,
diagnosis was important in order to determine a treatment plan, which might
include palliative care.
64. The appellant’s prescribing
behaviour was inappropriate. The evidence of Ms Rickets showed on a number of
measures that the appellant was either in the lowest quartile or the absolute
lowest scorer. The measures used took
into account not only the cost of
treatments but also the quality by virtue of weighted assessment.
65. The evidence of Ms Scott
and the appellant’s own witness, Mr Jepson showed the appellant’s record
keeping to be poor. Protocols were not regularly reviewed. There was no formal process for recording
the non-attendance of patients at GP surgery. There was no systematic approach
to appointments and referrals. Appointment and referral details were kept on
open shelving within the view of members of the public. There was no systematic
approach to the management of chronic disease registers. The appellant stored
so many boxed files of his private patient papers in his consulting room that
patients had to negotiate an 18 inch wide pathway between boxes.
66. And finally, Ms Print
submitted that contingent removal of the appellant was not appropriate. The
appellant had failed to comply with the respondent’s requests over a number of
years and had shown himself to be obstructive. It was difficult to see how
conditions relating to re-training on prescribing issues would be complied with
given the appellant’s lack of reflection and insight.
The
Appellant’s submissions
67. Mr Stevenson, on behalf of
the appellant, relied on his skeleton argument and made a number of submissions
that may be summarised as follows. The sample of patients reviewed in the
course of the respondent’s investigations was not representative. The evidence
showed that there was a range of GP opinion on what was considered to be
adequate clinical management. The appellant’s case was supported by three
consultants.
68. Mr Stevenson in respect of
individual patients further submitted that
i.
In the case of patient J, it was possible to draw an inference from the
notes that the patient’s treatment doses for carbimazole was reviewed; that the
appellant was justified in relying on the patient's presentation rather than
the bio chemical data; and the patient’s compliance was poor and had been
referred to BUPA.
ii. As to patient G:
the patient had not suffered heart failure and there were no contra indications
for the prescription of atenolol.
69. As to storage of records,
Mr Jepson was a credible witness and his evidence should be preferred to that
of Ms Scott where there was a conflict. The storage of records and papers in
the staff toilet had occurred when the appellant was not in control of the
premises. Certain matters were delegated to employees in respect of whom there
was an effective protocol in place.
70. The mortality rate with the
appellant’s practice was good despite the high level of deprivation within the
patient population. There was an appropriate appointment system in place. Since
the appellant’s suspension there were changes in the prescribing profile of the
practice. This was attributable to patients leaving the practice because they
were dissatisfied.
71. In summary the respondent’s case should be subject to anxious
scrutiny. Only if the Panel were clearly satisfied that removal was necessary
should they so order. It was accepted that the respondent may have a case in
relation to prescribing issues. If the Panel were to consider contingent
removal appropriate conditions relating to prescribing could be imposed. In
particular, the appellant should be given the opportunity to operate a computer
system after undertaking appropriate training and to undertake further training
on reviewing patients.
Assessment
of Evidence and Findings of Fact
72. The Panel considered all
the evidence, the submissions of the representatives and makes the following
findings.
The medical records
73. The Panel finds that the
appellant has failed to comply with the requirements of good medical practice
as set out in the GMC guidance on good medical practice in that the appellant has failed to keep clear,
accurate, legible and contemporaneous records which report the clinical
findings, the decisions made, the information given to patients and any drugs
or other treatment prescribed.
74. The legibility of the
records speak for themselves. The Panel, in a number of instances was unable to
decipher the notes. Dr Ullah, when giving evidence on behalf of the appellant
was at times unable to read the notes relating to for example patients C and J,
despite having had the opportunity of perusing the notes at his leisure and in
consultation with the appellant. The Panel further notes the written evidence
adduced on behalf of the appellant, such as Dr Campbell, which show they found
the notes illegible and difficult to follow.
75. The records also show that
the appellant failed to accurately record findings, the decisions made, the
information given to patients and treatment.
76. For example, in
relation to patient B there was no indication of examination, no documentation
of positive or negative findings and limited diagnosis. Of the 17 entries indicating treatment of
the patient only 4, at best, appear to have a diagnosis attached as indicated
by the letters UTI. The appellant did
not give direct evidence as to the meaning of that abbreviation, however it was
said by Dr Ahmed on the appellant’s behalf that the abbreviation stood for
upper respiratory tract infection. The Panel notes the evidence of other
practitioners and takes judicial notice that the abbreviation UTI is commonly
understood to be mean urinary tract infection.
77. Dr Ahmed also agreed that
the notes failed to record a management plan for the patient, but he suggested
that evidence from the mother showed that one had been agreed. That may be so.
However, good medical practice requires a contemporaneous note on the record
and Dr Ahmed did not refute the suggestion that the medical record failed to
show this.
78. By way of further example
of the inadequacy of the appellant’s medical records, the Panel notes in
relation to patient C that the appellant had failed to document his claim that
the patient had refused to consent to examination. Again, those who gave
evidence on behalf of the appellant, in this case Dr Ullah, agreed that the
notes failed to record a relevant matter namely the refusal of consent. The
Panel further notes that Dr Ullah was in a position to say that the patient had
refused consent because the appellant had told him that that was the case. As
noted previously, the Panel did not hear oral evidence from the appellant on
this.
Clinical
management
79. The Panel notes here that
adequate record keeping is an integral part of good medical practice, because
without it there is a real risk that patients will not be offered appropriate
diagnosis and intervention. Good clinical notes go hand in hand with good
clinical management enabling proper diagnosis, treatment, referral and review
to occur.
80. The Panel finds that the
evidence shows that the appellant’s clinical management of patients has been
inadequate.
81. For example, patient J was
initially appropriately diagnosed with an overactive thyroid in 1988 and
prescribed neomercazole. Over the next 10 years the medical notes do not record
a review of the patient’s medication. In 1998 a thyroid function test suggested
the patient be monitored, a similar test in 1999 queried whether the patient
was taking carbimazole and another test in October 2000 suggested that the
patient had toxicosis.
82. It was suggested on behalf
of the appellant that her thyroid condition went untreated because the patient
declined a referral. The Panel does not find that to be recorded in the
clinical records, and further notes that it does not provide an explanation for
the failure to review medication and make adjustments as appropriate.
83. The Panel rejects the
submission of Mr Stevenson to the effect that it is possible to draw an
inference from the notes that the patient’s doses for carbimazole were
reviewed. It was submitted on behalf of the appellant that a close reading of
the notes showed that the doses varied. The Panel finds that the notes do not
clearly record the relevant doses prescribed as the entries do not indicate the
dose or frequency of the prescribed drug. The Panel also rejects, as no more
than a makeweight argument unsupported by authority, the submission that that
the appellant was justified in relying on the patient's presentation rather
than the biochemical data. The Panel also attaches little weight to an early
entry in the records concerning a referral to BUPA.
84. The Panel finds the
clinical management of patient G to be a further example of poor clinical
management. The evidence shows the patient to have a complex medical history of
breast cancer, lymphoma and angina.
85. Part of her treatment
included taking atenolol, a beta blocker for her angina. The patient was also
subsequently diagnosed by the appellant as having asthma and prescribed an
inhaler. The evidence of both Dr Shamsee and Dr Ullah although presented as
being in conflict, were essentially at one on the question of use of beta
blockers in patients with asthma, namely that although beta blockers were
generally contra indicated in some circumstances they may be appropriate.
However, such treatment should be undertaken under the supervision of a
specialist. It is not contested that the appellant made no such arrangements.
In addition, the records fail to show that the appellant made arrangements for
formal reviews of the patient’s chronic heart disease.
86. The Panel further finds
that the appellant did not make appropriate arrangements for further
investigations on patient G’s presentation with shortness of breath despite her
complex medical history.
The
appellant’s prescribing profile
87. The Panel finds the evidence of Ms Ricketts to be reliable. Her
opinions are based on data that was made available to the Panel and are
objectively verifiable. She has given a clear account of her methodology and was able to justify her opinion on cross examination.
88. The Panel finds that the
appellant is the poorest performing practice within the PCT for generic
prescribing. The Panel finds that the appellant has the poorest generic
prescribing rate for anti biotic prescribing. The Panel note here in passing,
that such evidence is consistent with the clinical records of patient B as noted above. The Panel finds that the
appellant is the poorest performing practice in prescribing premium priced
preparations with a then current rate of £3 per patient unit.
89. The Panel finds that since
the appellant’s suspension there have been significant improvements in the
practice’s prescribing profile, for example generic prescribing in the period
to December 2004 was 44% but in the period to April 2005 was 70%.
90. The Panel rejects the
submissions on behalf of the appellant to the effect that the prescribing data
is not a reliable basis on which to base a decision.
91. The Panel notes that whilst
it would have been preferable for data covering similar periods to have been used
in order to compare the practice performance before and after the appellant’s
departure, nevertheless the methodology is sufficient robust to show the
potential for improvement. In that context the Panel rejects the submission
that such differences that have been demonstrated can be explained in terms of
population change of the patient list. That submission is unsustainable because
it fails to take into account that the comparative analysis draws on weighted
data to reflect the population profile, and, in addition, the differences in
population size, of about 70, is not statistically significant given an overall
population in excess of 1700 (see Schedule of evidence A1).
92. The Panel finds that Ms
Ricketts over a number of years attempted to engage with the appellant with a
view to offering support in improving his performance in areas such as drug
budgets, generic prescribing and appropriate drug use. The Panel finds that the
appellant failed to constructively engage with Ms Ricketts.
Other
areas of concern
93. The Panel finds that the
evidence shows there are a number of other concerns, which fall for
consideration when assessing an efficiency case. The Panel finds that the
appellant failed to make appropriate provision for the storage of files and
personal papers within the practice. The evidence of Mr Jepson relating to the
storage of archive files in the consulting area shows that the appellant failed
to make adequate provision for storage of papers. The Panel also finds that the
operation of the appointment system was less than robust. Thus there was no
formal system for recording occasions on which patients failed to attend for
appointment and loose-leaf notes of appointments were stored on open
shelves.
Decision
and Reasons
94. Looking at the totality of
the evidence in the context of the criteria for removal from the performers
list and in the light of the above findings, the Panel directs that the
appellant be removed from the respondent’s performers list because his
continued inclusion would be prejudicial to the efficiency of the services
which those included in the relevant performers list perform.
95. The Panel considered Mr
Stevenson’s submissions noted in the preceding paragraphs on contingent
removal. The Panel finds that this is not an appropriate case in which to
direct contingent removal. Contingent removal involves the imposition of
conditions on a performer with a view to removing any prejudice to the
efficiency of the services in question.
96. In order to address the
findings of the Panel in relation to his inefficiency the appellant would need
to first acknowledge the difficulties that he faces. In the course of these
proceedings the Panel has not found there to be significant evidence
demonstrating that the appellant acknowledges the extent of his inefficient
practice or that he has either the ability or willingness to change. No
substantial evidence has been adduced to support a submission that the
imposition of conditions would have a realistic prospect of removing the
prejudice to the efficiency of the services. Nor can the Panel find significant
evidence of the appellant engaging in reflective practice in the course of his
clinical management of his patients or his practice generally. In those
circumstances the Panel is unable to identify any conditions which could be
imposed with a view to removing any prejudice to the efficiency of the services
in question.
Summary
97. The Panel
directs that Dr Dev Dutt is removed
from the Central Huddersfield Primary Care Trust performers list on the grounds
that his
continued inclusion in its performers list would be prejudicial to the
efficiency of the services which those included in the relevant performers list
perform.
98. In accordance with Rule 42 (5) of the Rules
the Panel hereby gives notice 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 28
days of receipt of this decision.
Signed Date
MR J D Atkinson
Chair