Professor M Mildred- Chair
Dr S Ariyanayagam - Professional Member
(GMC NO: 0407195)
1. Background.
On 19 November 2002 Dr Jones, a GP retired from full-time general practice but a member of the supplementary general medical services list of Burntwood, Lichfield and Tamworth Primary Care Trust (“the PCT”), attended the Balance Street Surgery, Uttoxeter where he was to be based to carry out on call locum duties. He was due to be on call between 1230 and 1700 but in fact arranged cover from one of the partners of the practice whilst he awaited the outcome of his wife’s surgical repair of her right cruciate ligament.
He eventually arrived at the Surgery at 1620 and whilst waiting for a patient to arrive was in the reception area with Sister Nina O’Grady, a practice nurse, and Jane Gould, a receptionist at the practice. On 22 November 2002 Sister O’Grady made an oral complaint concerning Dr Jones’ actions on 19 November and later reduced these to writing. Ms Gould provided a supporting statement.
2. Procedural history
At a meeting on 20 December 2002 Dr Jones was informed that the PCT had suspended him and informed him of the complaint. On 27 December the PCT at a further meeting confirmed the suspension. At a further meeting attended by Dr Jones on 11 February 2003 Dr Jones was permitted to comment on the complaint. By letter dated 18 March 2003 the PCT informed Dr Jones that the suspension was to be lifted on his contingent removal from the Supplementary List of the PCT with three conditions on the ground of unsuitability.
After correspondence between the PCT and Dr Jones’ representatives a further meeting was held on 24 July 2003 to consider whether to vary or impose new conditions or to remove him from the List. By letter of 4 August 2003 the PCT imposed varied conditions and confirmed that it had (as it said would have been clear to Dr Jones) been acting on the ground of inefficiency rather than unsuitability.
By letter dated 27 August Dr Jones appealed against the decision of the PCT under regulation 15(2)(b) of the National Health Service (General Medical Services Supplementary List) Regulations 2001. A detailed statement of case dated 24 September 2003 was provided by the British Medical Association (“BMA”) on behalf of Dr Jones.
A Direction of the Chair of the Appeal Panel dated 1 December 2003 provided in part:-
2. Accordingly the Panel will hear evidence on two issues: (a) would the
continued inclusion of Dr Jones on the Supplementary List be prejudicial to the
efficiency of the services which those included in the list undertake to
provide?; and (b), if so, what action should be taken against him?
3. It is for the parties to decide whether and what evidence to call on these issues
and whether any such evidence should be given orally or by documents.
3. The Appeal.
The hearing of the appeal took place on Monday 8 December 2003 at conference facilities at Birmingham City Football Club. Dr Jones was represented by Ms Rona Miller, an Industrial Relations Officer of the BMA. The PCT was represented by Mr Martin Brewer of Mills and Reeve, Solicitors.
The PCT called Peter Thorpe as a witness. Mr Thorpe is a Non-Executive Director of the PCT and chaired the panel convened to deal with the complaint on 20 and 27 December 2002 and 11 February and 24 July 2003. Mr Thorpe provided a written witness statement dated 8 December at the hearing and the PCT relied upon this as evidence in chief. He was cross-examined by Ms Miller. Most of that cross-examination went to the procedure employed by the PCT in dealing with the complaint and thus did not assist the Appeal Panel. Mr Thorpe did, however, confirm that he knew of no clinical underperformance or repeated waste of resources on the part of Dr Jones.
Dr Jones did not give or call any oral evidence. In relation to the incident itself the PCT maintained that there had been inappropriate touching of Sister O’Grady on the chest or breast and an invasion of her personal space. Dr Jones accepted the invasion of personal space, that he had been insensitive to Sister O’Grady’s signal to stop and that there may have been inadvertent physical conduct. Neither party chose to take these matters any further by direct evidence.
Ms Miller submitted that Dr Jones was distracted and under extreme stress and was mortified to find out that he had caused offence. She also submitted that the matter could not have been of the most serious in view of the delay in Sister O’Grady making her complaint, the fact that she carried on working, the failure of the GMC to make a finding of serious professional misconduct, and the fact that the police had not been involved. The matter, she said, could have been sorted out as an employment matter.
Ms Miller further submitted that the matters complained of might, had they been more serious, founded a procedure based on the unsuitability ground. The PCT had originally proceeded under this ground but decided to change to rely on inefficiency. The case, she said, (whilst accepting that there was no precise definition of inefficiency) bore none of the usual characteristics of inefficiency such as clinical underperformance or waste of resources.
Mr Brewer replied that the PCT had intervened since it was charged with quality control of services. The Guidance provided about the statutory grounds was simply guidance. There was some overlap between unsuitability and inefficiency and the PCT had been to some extent pragmatic in using the inefficiency ground so that it could impose what it considered desirable conditions on Dr Jones’ continued practice.
The PCT argued that Dr Jones’ conduct related to his capacity to carry out his everyday work and thus to his efficiency. It was concerned that what Dr Jones had done under stress might “stray over” into his treatment of patients.
4.The decision.
Whilst we have sympathy with the concern of the PCT to ensure no such incident occurred again and to impose conditions on Dr Jones’ continued practice to achieve this, we cannot accept that the inefficiency ground has been made out. We accept the submission that there may be some overlap between inefficiency and unsuitability but consider that the concept of inefficiency cannot be extended far enough to cover the circumstances of this case.
Whilst the actions of Dr Jones were quite inappropriate, they appeared to be unique in a very long career, occurred but once, did not concern patients or clinical judgement and did not impact upon anything that might be considered efficiency in the customary sense of the word. We are fortified in this conclusion by the fact that the seven factors listed for consideration in paragraph 2 of Annex E to the Guidance “Delivering Quality in Primary Care” appear to have no relevance to the conduct complained of in this case.
Since we are of the view that the PCT has not established an inefficiency ground, the question of sanctions does not arise for decision.
We are, finally, concerned that this decision should not be interpreted as in any way discounting or making light of what happened. It was clearly enough to upset Sister O’Grady and disrupt the business of the practice. Dr Jones has offered a full apology for his conduct and we express the hope that he will have learnt the appropriate lessons from this very regrettable incident.
The appeal is accordingly allowed.
9 December 2003
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Mark Mildred
Chairman