CASE NUMBER 11444
APPEAL ON 7TH DECEMBER 2004
(GDC Registration
Number 82559)
Appellant
and
EALING PRIMARY
CARE TRUST
Appeal by the Appellant under section 5ZC of the National Health Service (General Dental Services) Act 1992 to the Family Health Services Appeal Authority (FHSAA) against the Respondent’s decision to refuse to include him on its dental list
Appeal dismissed
Mr B Mashkour - Appellant
Mr N Curtiss - Respondent’s representative
(Director of Corporate Governance, Ealing PCT)
it was unable to include him in its dental list because one of his references was not satisfactory as it cast doubt on his clinical abilities. The Respondent went on to inform the Appellant that it would be pleased to reconsider his application following a period of postgraduate education consisting of clinical-based professional development as evidenced by attendance and references from the course tutors and this programme could be developed in conjunction with Ravi Rattan, Dental Advisor, the Respondent and the London Dental Postgraduate Deanery.
wished to appeal the Respondent’s decision. At the same time he asked the Respondent to reconsider its decision without an appeal.
(i) Jurisdiction
The National Health Service (General Dental Services) Regulations 1992 as amended by The National Health Service (General Dental Services) Amendment (No.6) Regulations 2001 and The National Health Service (General Dental Services) Amendment Regulations 2002.
5ZA -(1) The grounds on which a [PCT} may refuse to include a dentist in the
dental list under regulation 5 are –
(c) that having contacted referees, they are not satisfied with the
references given
The National Health Service (General Dental Services) Regulations 1992 as
amended by
The National Health Service (General Dental Services)
Amendment
(No.6) Regulations 2001
Schedule 2, Part I - Information …to be included in an application for
inclusion
in the dental list [shall include]
11A – 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
The National Health Service (General Dental Services) Regulations 1992 as
amended by The
National Health Service (General Dental Services)
Amendment
(No.6) Regulations 2001
5ZC -(1) A dentist may appeal to the FHSAA against a decision of a {PCT} to
refuse to include his name in a list pursuant to regulation 5(1)
(2) Such an appeal shall be by way of redetermination
(ii) Evidence
1.1 Mr Mashkour confirmed he graduated BDS in August 2003. He then
embarked on his year of vocational training which was based on continual assessment of his clinical work with his Vocational Training Advisor visiting four times. At the end of that year he was granted a vocational training certificate on the basis of having satisfactorily completed his vocational training year.
1.2 He experienced some problems with Mr Walsh, his Vocational Trainer.
In September 2003 he was ill with a fever and called in sick. Mr Walsh complained this was a major inconvenience and when Mr Mashkour returned to work the next day Mr Walsh said he should come to work unless it was a matter of life or death.
1.3 In December 2003 Mr Mashkour was ill and coughing and sneezing. He
drove the long distance to work in the snow and saw his first few patients
but asked the Practice Manager to cancel the rest. However, Mr Walsh
said he had to carry on, which he did. It took him several hours to drive
home in the snow. He called his Vocational Training Advisor when he got
home at about 10pm to say he felt too ill to work and he was told he
should not go to work the next day and get a sick note, which he did. He
returned to work after one day off.
1.4 In July 2004 Mr Mashkour had a stiff neck and shoulder and could not get
out of bed. He phoned Mr Walsh at home at 7.15am, who told him he must get a sick note. Mr Mashkour was unable to obtain an emergency appointment that day. Later that day Mr Walsh telephoned him back; when Mr Mashkour’s wife answered the phone Mr Walsh was rude to her and they had an argument. Mr Mashkour telephoned his Vocational Training Advisor to complain and he was advised to put his complaint in writing. He also telephoned Mr Walsh and told him not to speak to his wife like that. He saw his GP the next day, whogave him medication and a sick-note, which Mr Mashkour faxed to Mr Walsh.
1.5 Mr Walsh complained to Mr Mashkour’s Vocational Training Advisor
that Mr Mashkour had a very poor relationship with his staff but Mr Mashkour felt it was Mr Walsh who had the problem with staff.
1.6 Mr Mashkour acknowledged the need for further improvement of his
clinical work and that, like all dentists, he needed Continuing Professional
Development (CPD) but he did not agree that he needed further training.
1.7 In response to questions – Mr Mashkour confirmed he considered his
strained relationship with Mr Walsh had a bearing on the reference from Mr Walsh.
1.8 He had not pursued his complaint about the way Mr Walsh spoke to his
wife because it occurred at the end of his vocational training year and his
relationship with Mr Walsh. He had obtained his vocational training
certificate and both he and his wife felt there was nothing to be gained by
going through the complaints process; he would be working elsewhere.
1.9 Mr Mashkour accepted that after BDS all dentists needed to undergo a
vocational training year and ongoing CPD. However, he distinguished
between the necessity for further training, which he disputed, and the need
to further improve his clinical skills, which he acknowledged.
1.10 He had understood the Respondent’s requirement for two clinical
references. If he could have provided another clinical reference he would
have done so, but his Vocational Training Advisor (Mr Patel) had seen his
work when he visited and Mr Walsh had agreed with both Mr Patel and the
Regional Advisor (Janet Heath) that Mr Mashkour should be awarded his
vocational training certificate.
1.11 Mr Mashkour acknowledged that Mr Patel had highlighted some of his
clinical difficulties in the reference he gave to the Respondent (page
12 of
the case papers). He had experienced some difficulties with crown, bridge
and denture occlusal registration, but he had asked for help when necessary
and although he acknowledged there was a need for improvement, he
disputed that one or two problems he had encountered meant he was
incompetent.
1.12 He considered Mr Walsh’s reference was too vague and imprecise. It did
not make sense and the PCT should have asked Mr Walsh for a further
explanation. He did not agree with Mr Walsh’s assessment of his clinical
abilities as ‘poor’; He had another satisfactory reference and a vocational
training certificate and the PCT should have investigated the contradiction.
When the PCT contacted Mr Patel he had not said Mr Mashkour should not
be included in the list but that there was room for further improvement; that
was not the same as saying he had poor clinical skills and needed further
training.
1.13 He did
not think his more recent reference from his current employer (page
6 of the case papers) needed to specifically address his previous difficulties
with crown, bridge and denture work if they no longer existed.
1.14 He felt Mr Walsh’s reference was both untrue and inaccurate. The
references from his clinical tutor (Mr Beg) and his current employer (Dr
Riddell) both contradicted it and he asked to be judged on those references
instead.
1.15 Mr Mashkour’s employment since qualifying had been with Mr Walsh
from August 2003 to August 2004 and as an Associate with Dr Riddell on a
one-year contract from 30th September 2004. He had also worked for Mr
Taher on some, but not all, Saturday mornings from October/November
2003 to date, but it was not a regular commitment. Mr Taher would be
present at the surgery when he worked there and he would see NHS
patients; either new patients who would go onto his own list, or Mr Taher’s
patients if they were willing to see him. However, he had decided not
to carry on with this job as he was now working full-time from Monday to
Friday.
1.16 At the time the Respondent’s suggestion in its letter of 24th August for an
agreed programme of clinical-based professional development had been
acceptable, but Mr Mashkour needed a job to earn money and he could not
afford to wait any longer; there was no guarantee that the Respondent
would accept him; simply that it might do so in the future. He had spoken
to his Dental Advisor who said he could either wait or apply elsewhere so
he applied to Hertfordshire PCT and obtained his current post. Mr
Mashkour had no problem with attending further courses but he could not
afford it this year.
1.17 Mr Mashkour had supplied Hertfordshire PCT with references from Mr
Taher and Mr Patel, which it had accepted. Mr Patel was willing to give him
a reference and had accepted Mr Mashkour was not willing to re-approach
Mr Walsh.
1.18 Mr Mashkour had addressed the clinical difficulties he had encountered with crown, bridge and occlusal work by attending a one-day course on crowns and bridges towards the end of his vocational training year and a three-day course (14 hours) on crowns, veneers, bridges, composites and periodontal work in 2003 and also continuing to consult his Vocational Training Advisor and Trainer and making plans to attend CPD courses. He had recently been to a free evening talk on root canal treatment and there was a course in March 2005 about crowns and bridges. He was not booked on any course; he would attend free courses this year and save up to try and go next year on a once-monthly course on cosmetic work, root canal treatment, veneers, crowns and bridges or possibly do a MSc at the Eastman Hospital or in Manchester. He was not resistant to approaching his Dental Advisor for advice on CPD as suggested by the Respondent but he had been unable to await a further decision by the Respondent.
1.19 He had felt the Respondent would only reconsider his application after he had completed a CPD course, rather than on his signing up for such a course.
2. Mr Curtiss
2.1 Applications to join the PCT’s dental list were usually very routine and a
formality in terms of the administrative process and the pro-forma nature of
the application form indicated this.
2.2 The majority of applications complied with the regulations in terms of the
necessary documentation and references. The PCT would scrutinize
applications and if the screening did not reveal any problems, the registration
process would proceed without interruption.
2.3 If there was a problem the application was referred to the PCT’s NHS
Performers and Health and Social Care Act Decision-Making Group. This
was a formally constituted Board Committee with clear terms of reference
and delegated powers to make recommendations and decisions on behalf of
the PCT with regard to issues regarding practitioners and their performance as
well as decisions on whether or not to admit or refuse to admit a practitioner
on to the PCT’s list of practitioners.
2.4 On 22nd August 2004 the Decision-Making Group met to consider Mr
Mashkour’s application. The members were aware that the PCT has a duty of
care imposed upon it to protect patients and ensure the provision of safe
services. They decided they must reject Mr Mashkour’s application in
accordance with the governing regulations because, having contacted
referees, they were not satisfied with the references given.
2.5 The reference from Mr Walsh was from Mr Mashkour’s clinical supervisor as
part of the clinical vocational training scheme. Mr Curtiss submitted that Mr
Walsh was someone who would have a very close and deep appreciation of Mr Mashkour’s clinical abilities. The PCT should reasonably be allowed to assume that the Principal of a training practice would have a very clear understanding of the importance in providing a former vocational trainee with a reference. MrWalsh’s reference could not be described as an endorsement of Mr Mashkour; he had indicated his clinical abilities were ‘poor’ and commented that Mr Mashkour had acknowledged the need for further training in discussion with himself and the Peterborough Scheme Advisor.
2.6 Given the nature of the close training relationship, the PCT felt unable to
dismiss Mr Walsh’s views and attached significant weight to them. It felt that
it would have been neglectful in terms of its wider duty to protect patients
and the public if it had ignored such a reference and allowed Mr Mashkour to
join its list.
2.7 However, in being fair to Mr Mashkour the PCT actively sought the
comments of his Vocational Training Advisor (Mr Patel). Mr Patel’s e-mail
of 14th August 2004 (page 12 of the case papers) did not refute Dr Walsh’s
reference. It acknowledged a strained relationship between Mr Mashkour and
Mr Walsh and also very strongly leaned towards indicating the need for Mr
Mashkour to pursue continuing professional development and to work in a
practice which would provide ‘help and support’.
2.8 Mr Mashkour was offered the opportunity to discuss the deficiencies in his
clinical practice with the Trust’s Dental Advisor with a view to assisting him
to obtain the necessary support to rectify the problems which had been
identified. To date, Mr Mashkour had chosen not to avail himself of that
offer.
2.9 In conclusion, Mr Curtiss submitted that the PCT has acted both reasonably
and fairly in refusing to accept Mr Mashkour on to its dental list. Despite its
offer of a suggested way forward, Mr Mashkour had not done anything to put
the PCT’s mind at rest but the PCT wished it to be recorded that its offer of
assistance remained open.
2.10 In response to questions – Mr Curtiss confirmed the PCT had not contacted
Mr Walsh to discuss Mr Mashkour’s reference. It had contacted Mr Mashkour to be fair to him to indicate there was a problem but it was Mr Mashkour who chose Mr Walsh as a referee.
2.11 The PCT noted Mr Mashkour had received his vocational training certificate
but the governing regulations required the PCT to obtain and consider
references and one of Mr Mashkour’s references indicated he had poor
clinical abilities.
2.12 The PCT had no problem with Mr Mashkour’s other reference but the
subsequent intervention of Mr Patel did not overturn the PCT’s view; he did
not actively undermine Mr Walsh’s reference. The PCT felt it was safer not
to include Mr Mashkour.
2.13 The PCT had not notified other interested parties (including Hertfordshire
PCT (under whose list Mr Mashkour was currently working) of its decision
to refuse to admit Mr Mashkour on to its list of practitioners because his
application was currently subject to appeal.
3. Closing
Statements
Mr Curtiss
3.1 The PCT had to give close consideration to references from training
principals. This reference had come from a training practice where trainers
would undergo annual visits and reviews. The amount of close clinical
supervision was significant in assessing the character and capabilities of
trainees.
3.2 The additional references from Drs Riddell and Beg had been given after the
PCT had made its decision so it could not comment on them.
3.3 Mr Mashkour had still not indicated he would undertake a vigorous or clear
programme of training. Mr Curtiss thought he would need a solid plan to
further his career and develop his skills and he suspected from what he had
heard that the PCT’s concerns had not been allayed.
3.4 Mr Mashkour had contacted his Dental Advisor (Mr Rattan) when he
received he PCT’s decision. Mr Rattan had advised him to withdraw his application and apply elsewhere but the PCT had informed him he could not withdraw after it had made a decision; he could only appeal the decision.
3.5 The PCT had not given Mr Mashkour the chance to discuss further training programmes; he would not have minded at all and if it could give him a clear programme of CPD he would do it. He felt he had been left without any clarification and he did not want anything like this on his records.
3.6 There was a clear contradiction between Mr Mashkour’s clinical reference
from Mr Walsh and his other reference and his vocational training certificate.
He remained willing to undertake a clearly designed programme tailored to
his needs in the evening or at weekends.
1. We have carefully considered all of the written and oral evidence. Our remit
is to redetermine Mr Mashkour’s application for inclusion in the PCT’s
dental list and in so doing, to consider whether his referees supplied
satisfactory references.
Reference from Mr Taher, we are concerned that it does not properly comply with the governing regulations. These stipulate that a dentist applying for inclusion in a dental list must supply 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. We do not consider Mr Mashkour’s employment on irregular Saturday mornings with Mr Taher properly complies with the spirit of this provision; by Mr Mashkour’s own admission this is not a regular commitment. Mr Mashkour told us that when he did these sessions Mr Taher would be present at the practice, but we doubt that he could properly supervise and assess Mr Mashkour’s clinical abilities and progress at such irregular and brief sessions; We appreciate Mr Mashkour had only held one full-time clinical post since qualifying at the time of his application to the PCT and we are sympathetic to Mr Mashkour in his difficulties in putting forward two suitable referees, but the regulations do go on to provide that where it is not possible to provide two clinical references, a full explanation and the names and addresses of alternative referees can be given.
his appeal. We consider the reference from Dr Riddell to be satisfactory
(although it falls short of the requirement for three months continuous
employment by one week) but we do not consider the reference from Dr Beg,
who supervised the once-weekly clinical teaching sessions which Mr
Mashkour attended for two years, meets the criteria in the governing
regulations. Therefore, we find that Mr Mashkour has failed to provide two
satisfactory references in accordance with the governing regulations.
6. We are also concerned about the strength of Mr Mashkour’s commitment to
CPD. He complained that the PCT had not given him the chance to discuss
further training programmes; that he would not have minded at all and if the
PCT could give him a clear programme of CPD he would do it. However, on
closer questioning the evidence he gave leads us to doubt his motivation and
commitment. Mr Patel indicated in his reference that Mr Mashkour had agreed
to maintain his CPD and to choose appropriate courses to satisfy GDC
requirements and address his learning needs, but since completing his vocational
training four months ago he has only attended one free evening talk on root
canal treatment. In his evidence Mr Mashkour also qualified what he is prepared
to do by saying any courses would have to be held in the evenings or at the
weekend. He mentioned a course in March 2005 about crowns and bridges, but
he is not booked on it. He indicated to us that he would attend free courses this
year and save up to try and go next year on a once-monthly course on cosmetic
work, root canal treatment, veneers, crowns and bridges or possibly do a MSc at
the Eastman Hospital or in Manchester, but we are concerned that he talked
about going on advanced courses rather than addressing his basic clinical skills.
Moreover, whilst we appreciate Mr Mashkour’s financial constraints, we
consider that if he is really serious about wanting to improve his clinical skills,
which he did agree with his Dental Advisor to do, at the very least he should
have followed the PCT’s advice and by now have contacted his Dental Advisor,
the PCT and the London Deanery to devise a suitable CPD programme based
on his particular clinical needs. We are concerned that he was simply telling us
what he thought we wanted to hear rather than what he actually intends to do
and we do not consider it is appropriate for him to place the onus on the PCT to
provide a programme for him to undertake; he needs to be pro-active in
discussing and agreeing what clinical skills he needs to develop and address.
7. We also consider that the PCT has acted appropriately throughout; it properly
considered Mr Mashkour’s references, contacted him when there was a problem
and indeed went beyond its obligations in offering him a way forward and the
opportunity to be reconsidered if he undergoes a programme of further
professional development. We concur with the PCT’s submissions that it would
have been failing in its wider duty to protect patients and the public if it had
ignored Mr Walsh’s reference and allowed Mr Mashkour to join its list. Mr
Mashkour submitted that there was a clear contradiction between his clinical
reference from Mr Walsh and his second reference and the award of his
vocational training certificate, but as Mr Curtiss pointed out, the governing
regulations require the PCT to obtain and consider references, which is what it
did.
8. The only concern we have about the PCT’s actions is that its pro forma reference
does not provide for referees to be more specific about the amount of sessions
worked. Mr Taher indicated he employed Mr Mashkour from October 2003 to
date but not that this employment is only for irregular half-day sessions once a
week. There is no space in the form for a referee to qualify or further explain for
how many sessions he employs an applicant or whether or not he supervises or
trains the applicant in any way. Although this does not strictly fall within our
remit, we would ask the PCT to reconsider its pro forma with these considerations
in mind.
9. We note that the PCT wished it to be recorded that its offer of assistance remains
open and we would urge Mr Mashkour to take up this offer. He is clearly making
progress at his new practice but he should not renege or delay on his agreement
with Mr Patel to maintain his CPD.
10.We have considered whether it would be appropriate for Mr Mashkour to be
conditionally included on the PCT’s dental list, but given our concerns relating to
his motivation and commitment to undertake appropriate CPD, we consider this
would impose an unduly onerous burden on the PCT to have to monitor his
progress.
1. Given that we do not consider Mr Mashkour has been able to provide two
satisfactory clinical references in accordance with the criteria in the governing
regulations and that we saw no real evidence of his willingness to honour his
agreement with Mr Patel to maintain his CPD, we find that the Respondent’s
refusal to include the Appellant in its dental list was justified.
2. Accordingly, we uphold the Respondent’s decision and dismiss the Appellant’s
appeal.
In accordance with Rule 42(5) of the Family Health Services Appeal Authority
(Procedure) Rules 2001, we hereby notify the Appellant that he may have rights
relating to appeals under Section 11 of the Tribunals and Inquiries Act 1992.
Mr Curtiss gave evidence that the PCT had not notified other interested parties
of its decision to refuse to admit Mr Mashkour on to its list of practitioners
because his application was currently subject to appeal. However, we think that
this must be incorrect because the governing regulations require a PCT to notify its
decision to various persons or bodies and to let them know if a decision is changed
on appeal and in
its letter dated 28th September 2004 (pages 3-4 of the case
papers) the PCT has indicated it has given such notification. Although we have
not changed the PCT’s decision, given the progress Mr Mashkour has made in his
new practice, and provided he commences appropriate CPD, we would not want
to see that progress impeded by this decision and should any of the persons or
bodies notified of the PCT’s decision have concerns about the outcome of this
appeal we would ask the PCT to apprise them of the new facts and this request.
……………………………………..
Chairman of the Panel