Dr R I M Sadek - Professional Member
Mrs L M Thurlowe - Member
And
(a) There was a delay of three weeks in receiving the application form and
(b) the deadline for applications was extended by a week: these were caused by pressure of work, affected all candidates equally and did not prejudice Dr Dash;
(c) Dr Dash was told that he was the only applicant: he was told this by East Somerset NHS Trust, a support services partner of the PCT, which assisted the PCT in the recruitment process. Only one application was received by them and two were received by the PCT itself;
(d) There was no provision in the interview programme for him to visit the practice on the day of the interviews: the PCT agrees this but says (and we accept) that he was offered a visit on the interview date but declined it on the ground that he had already visited the premises at length;
(e) The PCT did not take up Dr Dash’s references before the interview: the PCT agrees and states that it was its normal practice only to take up references on a person to whom an offer was to be made. The Panel took notice that this is in accordance with modern practice in the NHS;
(f) The other applicant worked in a group practice whereas Dr Dash worked in a single handed practice: the PCT accepts this was the case but was of the view that the practice in question was bound and intended to develop very quickly so that it would remain a single handed practice for only a very short time;
(g) Dr Dash was told that he would hear the outcome on the day of the interview whereas he was not in the event told for a week and only then upon his prompting: the PCT told us that Dr Dash was told that he would be informed of the outcome that day or the next day. Ms Lee told us and we accept that she contacted Dr Dash later on the day of his interview to tell him that she needed time to “check things through” with the Chief Executive and that she would let him know the outcome within 7 days;
(h) Dr Dash’s presentation was applauded and he was led to believe that he would be offered the vacancy: to this the PCT acknowledges that the presentation was strikingly original and was indeed applauded. It by its representatives replies that the approval of the presentation conferred no legitimate expectation on Dr Dash that his application would be successful. The Panel accepts the point made by the PCT.
(a) Dr Dash said he was not asked during his interview about prescribing issues: this was strongly denied by both representatives of the PCT. At the hearing Mr Crowther produced the notes he had made at the interview and we accept that both candidates were asked a number of questions about prescribing. Dr Dash told the interview panel that he was working in his present position towards 80% generic prescribing and it was clear to the panel that he had spent some hours in discussions with the pharmacists located opposite the practice in question. We reject this allegation.
(b) The reason given by the PCT for offering the other applicant the vacancy (expertise in primary care prescribing issues) was not mentioned in the job advertisement: the representatives of the PCT said and we accept that prescribing expertise was but one (although important) factor in the decision. The PCT accepts that the terms of the rejection letter to Dr Dash were ill-considered and would have benefited from further work. The Panel regrets the imprecision of the reasons given in that letter for the decision of the PCT but does not consider that the PCT’s decision was thereby rendered unfair.
(c) prescribing issues are not in any event of the greatest importance in single practice: to that the PCT replies (and the Panel accepts) that this practice was to the knowledge of all concerned unlikely to remain a single practice for any length of time. Thus the issue falls away.
(a) One of the interview panel took the other applicant on his visit to the practice immediately before the interviews: the PCT admits that the other candidate was driven to and from the practice premises by Ms Lee. This was explained as an unavoidable accident since Ms Lee was not intended to be a member of the interview panel but was nominated by the Chief Executive of the PCT to take her place on the morning of the interviews when she was summoned to attend the Strategic Health Authority on short notice. Ms Lee attempted without success to find a colleague to drive the other candidate to and from the practice premises.
We fully accept that the encounter between the candidate and Ms Lee
was unplanned and that there was no intention on the part of Ms Lee
or the PCT to confer any advantage on the other candidate or any
disadvantage on Dr Dash. We accept that the encounter lasted only
approximately 20 minutes in the privacy of Ms Lee’s car and that she
had no contact with the candidate during his visit to the practice
premises. Two points, however, concern us: the first is that what
happened, limited as it was, would have caused a reasonable observer
to fear that the appointment procedure was not being carried out fairly.
The second is that, as Ms Lee candidly admitted, there was discussion
between her and the candidate about the timescale for the major
residential development that would significantly affect the catchment
environment and thus the future development of the practice. There
appears to us to have been a real chance that this may have given him
an advantage over Dr Dash in the process.
Whilst we explicitly absolve Ms Lee of any unfair motive we consider
that the perception of unfairness that would reasonably flow from this
course of conduct was sufficient to vitiate the validity of the decision
to offer the appointment to the other candidate.
(b) That visit should have been seen as worthless since the applicant would not have had time to make a practice development plan on the basis of what he had observed. Dr Dash on the other hand talked to the staff at the practice before composing his vision for the practice. To this the PCT replied that each candidate was invited to make and in fact made a presentation of his vision for the practice. The PCT was properly able to assess both candidates on the basis of their presentations among other elements of their applications. We accept this.
The Panel unanimously finds that the facts set out at (l) above disclose procedural irregularities leading to unfairness in the way in which the PCT dealt with Dr Dash’s application for the vacancy. Consequently the appeal is allowed and the PCT is directed to advertise the vacancy anew. The Panel further directs the PCT to establish an interview panel including none of the members of the interview panel of 29 July 2003.
10. We should point out that the PCT failed to inform Dr Dash in its letter of 21 August 2003 of his right to appeal as required under regulation 18C (6)(b) of the National Health Service (General) Regulations 1998 (as amended).
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