DECISION

The whole of this appeal is dismissed, pursuant to Rule 36 of the Family Health Services Appeal Authority (Procedure) Rules 2002.

REASONS

1. This is an appeal by Mr. Nils Folbirk, pursuant to section 49M of the National Health Act 1977, as amended ("the Act") against his removal from the list of dental practitioners maintained by Essex Health Authority ("the Health Authority"), exercising its power to do so under Section 49F of the Act.

2. The Health Authority's decision to remove Mr. Folbirk (“the Appellant”) from their dental list was communicated to him by a letter dated 28 June 2002, and took effect, in the absence of any representations by him, on 29 July 2002. The decision was expressed to be on the grounds of inefficiency and/or unsuitability. The first of these grounds refers to section 49F (2) of the Act, namely 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". The second ground refers to section 49F (4), namely that "the person concerned is unsuitable to be included in the list".

3. The evidence upon which the Health Authority’s decision was taken is very extensive and falls under a number of heads, including the Appellant’s clinical competence and practice standards (addressed by a Clinical Risk Assessment Report), his attitude to and handling of patients, a criminal conviction for indecent assault on a young person, his lack of candour about that and another criminal conviction and about his professional background, his alcohol consumption, the alleged risk to children (addressed by a report by a Child Protection Risk Assessor) arising from his previous conduct and his choosing to work as a sole practitioner. Among other things, reliance was also placed on adverse findings in seven Dental Discipline Committee and Dental Service Committee cases, and an Independent Review. The facts giving rise to the allegations extended over many years. The witness evidence was extensive, and involved (among others) professional assessors and former patients, or their parents.

4. A handwritten notice of intention to appeal, dated 16 August 2002, was received by the FHSAA, and a further typed document, setting out grounds, and dated 21 August 2002, was subsequently received. We directed that these should be treated as a valid notice of appeal notwithstanding that they did not comply with the requirements of rule 6(2) of the Family Health Services Appeal Authority (Procedure) Rules 2002 (“the Rules”).

5. The grounds of appeal were in very general terms. The Appellant did not accept the findings of the Clinical Risk Assessment Report; he criticised the manner in which the assessment had been conducted, and complained that he had not been provided with proper details of the cases reviewed. It was not clear what was the extent of his attack on the Report, nor what patient records and models would need to be available. Nor did he accept the Child Protection Report, asserting unspecified factual inaccuracies and inconsistencies. Similarly he alleged that the report of a Mr. Greenwood (the Health Authority’s Corporate Services Manager, who had marshalled the evidence for consideration by the Authority and recommended removal) was inaccurate and full of bias, in unspecified respects. He further asserted that he did not accept “much of the evidence contained within the many witness statements” but did not identify which of these witnesses or passages of evidence he was referring to. Lastly he raised allegations against unidentified persons within the Health Authority for spreading untrue stories about him in the local area, relating to serious allegations which formed (so far as we can see) no part of the Health Authority case against him and which we would have been inclined to ignore as being simply prejudicial to the Appellant.

6. It was apparent that at any hearing of the appeal, considerable numbers of witnesses would have to attend, in one instance from abroad. Estimating the length of the hearing and which witnesses were in issue, would have been guesswork. The case was likely to last at least one, and possibly several weeks, unless the nature and extent of the issues raised by the Appellant could be established. We were mindful of the need to avoid waste of costs by the wholesale attendance of witnesses who were, in the event, not challenged on material matters. We were also mindful of the possible need to give directions as to the preparation of further documentation for any hearing, including taking account of patient confidentiality.

7. We considered it important to the proper conduct of any appeal to give directions for further particulars to be supplied by the Appellant, which we did by letter dated 15 October 2002. At the end of those directions, we drew attention to the power to dismiss the appeal for non-compliance, and to the right of either party to apply to vary or set aside our directions.

8. The Appellant did not respond to the directions order by the date specified, or at all. Nor did he attend the oral hearing fixed in this matter for 21 November 2002. We were reluctant at that stage to determine the appeal in his absence. We therefore made a further Order, which firstly required him, by 16.00 hours on 2 December 2002, to show cause in writing why the Panel should not dismiss the whole of the appeal. In the event that he did so satisfy us, we made further directions for the conduct of the appeal (to be complied with by 16.00 hours on 9 December 2002) and adjourned the oral hearing to 19 December 2002.

9. Following the hearing held on 21 November, the Appellant telephoned the offices of the FHSAA and acknowledged receipt of the Order of that date. We are entirely satisfied that the Appellant knows of the Order, and has chosen not to put forward any reasons why his appeal should not be dismissed. We also note that he has had ample opportunity to comply with our directions and indeed to attend the hearing of 21 November and prosecute his appeal. He has taken no step either to show cause, or to comply with the any of the directions given by the Panel. Those directions were in our view necessary for the proper conduct and determination of the appeal.

10. Against that background we dismiss the whole of the appeal, the Appellant having failed to show cause, as directed, why we should not do so.

11. We have already indicated in our order of 21 November 2002 that we proposed to consider National Disqualification in the event that the appeal was dismissed, and that issue will be heard at the hearing fixed for 19 December 2002.

Dated 11 December 2002

Mr. Duncan Pratt (Panel Chairman)

Case: 10172

IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY

MR. NILS FOLBIRK

Appellant

-and-

ESSEX HEALTH AUTHORITY

Respondent

DECISION

Family Health Services Appeal Authority,

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