CASE NUMBER 10370
APPEAL ON 9TH JULY 2003
and
ESSEX
STRATEGIC HEALTH AUTHORITY
Application by the Applicant under section 49N(7) of the National Health Service Act 1977 (as amended by the Health and Social Care Act 2001) to the Family Health Services Health Authority (FHSAA) for a review of his national disqualification
Application
dismissed.
Dr Kewel Kataria - The Applicant
Mr Charles Foster - Counsel for the Applicant
Mr David Harris, Hempsons - Applicant’s solicitor
Dr Gerard Panting, Medical Protection Society- Applicant’s witness
Ms Clare Murray - Counsel’s pupil
Mr Peter Greenwood - Respondent’s representative
Mr Angus Moon - Counsel for the Respondent
Mr Paul Booth, C & B Locums Ltd - Respondent’s witness
Hempsons, wrote to the FHSAA to request a review of his national disqualification.
6th January 2003 with a Statement from the Respondent opposing the Applicant’s application on the following grounds:
(i) the Applicant had unlawfully practiced as a locum in Scotland whilst he was disqualified
(ii) the Applicant had failed to provide any information or evidence to suggest that he fully understood and accepted the nature of the concerns of the National Health Service Tribunal which disqualified him in 1996, nor that he had taken any steps to address those concerns, or any evidence that he had been successful in doing so.
5. The Respondent also requested confirmation that the Applicant had disclosed
his national disqualification and the reasons for it to all those for whom he had
worked since it came into effect and asked for evidence of his Continuing
Professional Development and Education (CPD) since 1996.
attitude contained in his letter dated 10th September 2002
demonstrated he had accepted and addressed the concerns
expressed by the NHS Tribunal
C & B Locums or to his employers since 1996. He would be making
submissions at the hearing regarding the need to do so in a non-NHS
context
the Respondent’s Skeleton Argument and Witness Statements from Wing
Commander P J Schofield, Flight Sergeant Stuart Rae, Margaret Hanlon and
Paul Booth. (These
will be considered below as part of the evidence
submitted at the
hearing.)
extent of the panel’s jurisdiction and explaining what the
hearing could cover.
The panel also set a time limit in the pre-hearing Directions
in the event of
either party wishing to raise an issue under the HRA, such
issue to be set out
in writing in full by 21st April 2003, together with a copy of the legal
authorities to be relied upon.
A person who has been disqualified by the NHS Tribunal under The National
Health Service Act 1977 in relation to all Health Authorities in England before
14th December 2001, and whose right of appeal to the High Court has either
lapsed or been exhausted by that date, will be treated from that date as having
had a national disqualification imposed on him by the FHSAA. Such a person
also has the right to have that disqualification reviewed by the FHSAA subject
to certain periods of time having first ended (Regulation 4)
2. Section 49N(7) of The
National Health Service Act 1977 (as amended by the
Health and Social Care Act 2001) (The NHS Act)
The FHSAA may at the request of the person upon whom it has been imposed
review a national disqualification and on a review may confirm or revoke it
1.
Reconsideration of the original tribunal’s decision
1.1 There were preliminary submissions from the parties relating to whether
section 49N(7) permitted the parties to re-examine or reconsider the original
tribunal’s decision.
1.2 Counsel for the Applicant submitted there was authority for the review to
cover what was equitable in all the circumstances and the panel could look at
the original transcript of the 1996 hearing and reach its own conclusions
(Rohatgi v Medical
Tribunal of NSW & Anor (1994)
New South Wales Court
of Appeal))
1.3
Article 6 of the Human Rights Act (HRA) could
not apply in 1996 but it
should apply to this tribunal’s consideration of the 1996 decision
1.4
Article 13 of the HRA provides for an
effective remedy if the panel finds
there has been an Article 6 violation; it was submitted this
could be done by
ameliorating the harshness of the original order
1.5
Counsel
made some general criticisms of the original hearing, such as it
proceeding in the Applicant’s absence and inappropriate
findings of
dishonesty and quoted various authorities in support of these
submissions
1.6
He
also made some specific criticisms of the handling of the individual cases
the subject of the original tribunal
1.7
He
concluded by submitting the original proceedings would have been Article
6 flawed and the panel must now take into account legal and
factual
developments since the original hearing and suggested this
appeal should be
considered as a case of clinical failure in the respects
found by the original
tribunal, but without the seriously aggravating feature of
dishonesty, and with
all the subsequent mitigating features he had outlined
1.8
Counsel
for the Respondent
submitted there were three issues to consider;
1.8.1
what “review” means (see 1.9 – 1.11 below)
1.8.2
HRA
issues (see 1.12 below)
1.8.3
the
practical consequences if Counsel for the Applicant was right (see 1.13 below)
1.9 He did not accept the
findings of the original tribunal against the Applicant
were in any way unfair; the Applicant had been
entitled to appeal the original
decision in 1996 and he could not now
seek to re-open matters
1.10 Mr Foster’s submissions were wrong in law. Section 49N provides for
a
right of review and section 49M provides for a right
of appeal and they are
totally different
procedures. Section 49N(7) only allows the panel to
consider if the national disqualification is now
appropriate
1.11 Save in limited circumstances, which were not relevant to this
case, section
49N(7) only allows for a review
to be requested two years after the national
disqualification was imposed; section 49M(3)
provides for appeal by way of
redetermination of the original decision. The proper
way for the Applicant to
have challenged the original decision was to appeal
under the statutory
predecessor to section 49M or go to Strasbourg. The
reliance on the word
“review” in other contexts and quoting authorities
in the wrong context did
not assist. At this hearing the meaning of “review”
was more limited; the
panel must consider whether it was still appropriate
for the Applicant to
remain disqualified.
1.12
In R v Lambert (2001) and R v Kansal (2002) the
House of Lords held it is
not open to defendants convicted before the HRA came into
force to open
up matters of alleged incompatibility with Convention
rights, which could
always have been raised at Strasbourg, by taking the
appeal to a higher
court after the HRA came into effect. Mr Foster quoted
Australian
authorities which did not represent UK law. Counsel
submitted it could not
be correct to apply the requirements of the Convention to
the 1996 tribunal
when the Convention was not then incorporated by the HRA
into UK law
1.13
If
Mr Foster was correct it would be necessary to cross-examine the
Applicant on the conduct of the 1996 hearing and examine
the documents
before the 1996 tribunal, in which event the Respondent
would seek an
adjournment
[The hearing was adjourned to allow the panel to consider
the above
submissions]
1.14
The
panel concluded
that this hearing was a new application by the
Applicant for the removal of his national
disqualification. It was not
persuaded at all by Mr Foster’s submissions; the panel
considered “review”
relates to the national disqualification as opposed to the
proceedings leading
to that sanction. As Counsel for the Respondent had
pointed out, there was a
separate appeal procedure for redetermination of the
original decision which
the Applicant could have pursued. His legal representatives
at the time had
told him they did not consider he had grounds to do so.
1.15
This
FHSAA panel replaces the NHS Tribunal; it is a body of comparable
standing as opposed to a higher authority or review body
for NHS
Tribunals and it does not have judicial function to review
the original
tribunal’s decision.
1.16
When
the possibility of raising this preliminary issue had first been raised
by the Applicant’s solicitors, the Chairman of the panel
wrote to the parties
setting out the extent of the panel’s jurisdiction and
explaining what this
hearing could cover. The panel also set a time limit in
the pre-hearing
Directions in the event of either party wishing to raise
an issue under the
HRA and for submitting legal authorities to be relied upon
(see section B
paragraph 9 above). Accordingly, putting aside the
issue of the different
interpretation by the
Applicant’s legal representatives to the Chairman’s
explanation of what this hearing is intended to cover,
the panel considered it
was discourteous of those representatives to fail to
respond to the
Chairman’s letter and ignore the time-limit in the
Directions until they made
last-minute submissions on these issues just before the
hearing and to
present a whole file of authorities at the hearing
itself. Notwithstanding, in
giving the panel’s decision on this preliminary issue,
the Chairman
reassured the
Applicant that this would not in any way affect the panel’s
consideration of the merits of his application and the
panel was fully aware
of its importance and the effects of its decision on his
professional and
personal life.
[Although this issue was raised during the hearing we have dealt with it here for ease of reference]
2.1 Counsel for the Respondent asked the panel to accept the Witness Statements
from Wing Commander P J Schofield, Flight Sergeant Stuart Rae and
Margaret Hanlon without having to call them to give oral evidence. He
submitted that what they had said about the Applicant not revealing his
national disqualification to his employers was not disputed by the Applicant,
who now accepted he had been wrong not to do so.
.
2.2 The only issue on which the witnesses were not present to be questioned was
whether if they had been told, they would have employed Dr Kataria, who had
given evidence that he did not know if this would have been the case.
2.3 Section 41(6) of the Family Health Services Appeal Authority (Procedure
Rules) 2001 (The Procedure Rules) allows the panel to receive evidence on any
fact which appears to it to be relevant, notwithstanding that such evidence
would be inadmissible in proceedings before a court of law.
2.4 He also pointed out that in their letter dated 25th April 2003, the Applicant’s
solicitors had stated “…we
would presume that the Health Authority’s
solicitors will not
seek to call oral evidence from the five persons indicated if
such evidence is
restricted to the issues detailed in their letter to you of 17
April 2003”. He submitted this was tantamount to an invitation to the
Respondent not to call oral evidence.
2.5 Counsel for the Applicant accepted the panel had jurisdiction to admit these
Witness Statements but asked for them to be disregarded as he would have
wanted to question the witnesses on the positive aspects of Dr Kataria’s
employment. He submitted it would be most equitable for the statements to be
excluded.
[ The hearing was adjourned to allow the panel to consider the above
submissions]
2.6 The panel concluded that it would admit the Witness Statements in evidence under The Procedure Rules on the basis they preferred to have as much evidence as possible and they would attach the appropriate amount of weight to hearsay evidence. For example, they noted from Flight Sergeant Rae’s evidence that he only became Practice Manager at RAF Odiham and met Dr Kataria in Jauary 2002, although Dr Kataria had been working as a locum there for several weeks between September and December 2001, which indicated he had continued to be invited back. They also noted there were no official complaints in the Witness Statements about Dr Kataria’s clinical competence.
1.
Dr Panting
1.1 Dr Panting confirmed the content of his Witness Statement was true. He had
advised Dr Kataria in 1996 and appointed solicitors who had instructed Counsel on his behalf.
1.2 He was aware Dr Kataria had worked for around six weeks as an NHS GP in Scotland and he submitted he understood that Dr Kataria had stated his legal advisers had informed him that the national disqualification had no effect in Scotland. He accepted Dr Kataria was under the impression that his working in Scotland did not constitute a breach of his national disqualification both at the time of events and when Dr Kataria first approached him for assistance with this application.
1.3 He had not advised Dr Kataria at the time that this was the position; nor had he any recollection of being present when Dr Kataria might have been given such advice, although he recalled a conference did take place immediately following the Tribunal’s decision, the main purpose of which would have been to discuss whether there were any grounds of appeal.
1.4 He had some recollection that around the time of events he was led to believe that Dr Kataria had been advised by his lawyers that the national disqualification would have no effect in Scotland; he could not remember when or by whom he was given that impression but thought it likely Dr Kataria had told him he had been given that advice by his lawyers.
1.5 He did not know of any documentary evidence in existence which confirmed Dr Kataria’s belief he could work as an NHS GP in Scotland. He knew Dr Kataria’s present solicitors had attempted to retrieve his files from the original instructed solicitors but they had not proved possible to retrieve.
1.6 Although he had not advised Dr Kataria on the point, he had not known the national disqualification extended to Scotland.
2. Dr Kataria
2.1 Dr Kataria confirmed the content of his Witness Statement was true. In view
of the stress he was under and his state of mind at the time, he fully accepted
that his evidence at the original Tribunal may have appeared to be inconsistent
on various issues, but it was never his intention to give untruthful evidence.
2.2 He had never intended to practice as a NHS GP in contravention of the
disqualification order; following that decision his legal advice had been that
the order only applied to England and Wales and he could therefore still work
in Scotland. It was only when he contacted the Respondent last year to
enquire about applying for the disqualification order to be reviewed that he
was told the order applied in Scotland. He regretted and apologized for any
inadvertent breach of the order.
2.3 Between September 2001 and October 2002 he had worked as a civilian
medical practitioner in the Armed Forces, in various RAF medical centers and
Army barracks. He described the work he was required to do there and the
records of the consultations that he kept. As far as he was aware, during his
work for the Forces there had been no complaints or claims made against him
or any other criticism of his professional conduct or competence. Some of the
RAF centres were also training practices and, wherever possible, he would
attend case conferences with other colleagues and use library facilities. He
had kept himself up to date by reading medical journals and magazines.
2.4 He had been ill since October 2002 and undergone coronary by-pass surgery
in February 2003. His health had now improved and he was anxious to return
to medical practice. He had four children to support and had suffered greatly
since the disqualification order over six years ago. He accepted the findings of
the NHS Tribunal in respect of the individual complaints and fully
appreciated the deficiencies identified and would not act in the same way in
the future.
2.5 After Dr Kataria had been disqualified he had considered his actions and
mistakes, what he had done and what he should do. He had initially worked
part-time for the Disability Benefits Agency, then ran and managed his own
small health and weight management clinic for eighteen months, then worked
in Scotland as a locum GP for six weeks, before undertaking locum work in
the Armed Forces.
2.6 He had not told locum agencies of his disqualification as he remained GMC
registered and his legal representatives had told him it would only prevent
him from NHS general practice, so he had not considered it was relevant
when he applied for posts in the Armed Forces in 2001 and 2002. Although
there were no questions on C & B Locums’ application form or any other
paperwork he was asked to complete about such matters, he now accepted he
should have disclosed his disqualification to the locum agency and to
employers and followed the guidance in ‘Good Medical Practice’ issued by
the GMC, which stipulates doctors must not write or sign documents which
are false or misleading because they omit relevant information.
2.7 If his disqualification was revoked he would like to work as a locum on the
Armed Forces as it was less stressful than general practice and he would not
have to manage and organize a practice.
2.8 There had not been any patient complaints against him since 1996.
2.9 He accepted the Tribunal’s findings and that they were very serious matters
and a serious indictment of his practice as a doctor.
2.10 Before he had been disqualified he had not had an appointments system at his
practice, he had worked with a midwife once a week and he had only had
half-time receptionists as the Health Authority at the time would not give him
an increase in salary for receptionists or fund him for a computer. For his
CPD there had been lunchtime lectures twice a week and meetings in
hospitals on Saturday mornings. He had also attended certain courses.
2.11 Since 1996 he had attended some local lectures but had been unable to attend
regular postgraduate lectures or courses due to time and financial constraints.
He had kept up to date by reading magazines such as the BMJ but he had not
been in one place long enough to contact the Postgraduate Dean’s office or
any tutors at local post-graduate centers for advice regarding CPD. Although
the nearest such centre was only four miles from his home he did not have
the time to attend. He was also away from home when working for the
Armed Forces. Moreover, he did not have sufficient income to go on any
recognized courses. When he worked for the Armed Forces he had case
discussions with his other colleagues there once or twice a week. He had
planned to attend some courses but he had been ill since October 2002; now
he had recovered he planned to attend some. The locum agency had advised
him to become computer-literate as he had experienced difficulties in the first
couple of posts it had placed him in; he had then learned with a computer at a
friend’s practice and a receptionist had helped him for a couple of days at one
job.
2.12 He had been employed in the Armed Forces for over a year without any
complaints but he could not get any testimonials once employers found out
about his disqualification.
3. Mr Booth
3.1 Mr Booth confirmed the content of his Witness Statement was true. He was a
director of C & B Locums Ltd which provided locum GPs, particularly for
work as Civilian Medical Practitioners at military bases, including RAF bases.
3.2 His agency had found Dr Kataria employment on an ad hoc basis within
military medical centers throughout the UK between September 2001 and
October 2002. At the time it had not been the agency’s practice to ask doctors
to complete any form asking, inter alia, whether or not they had ever been
subject to any suspension from practice or professional disqualification,
although it now did this when doctors first registered with the agency.
3.3 The agency was aware Dr Kataria was not on the supplementary list of any
health authority but this was not a requirement for non-principal GPs working
in general medical services until June 2002. Even then it was still not a
requirement for work at military medical centers as a Civilian Medical
Practitioner, although it now was.
3.4 If he had known of Dr Kataria’s disqualification he would not have registered
him with the agency or been prepared to find him employment. He only found
out about it when a military client informed the agency, whereupon he
removed Dr Kataria’s file from the agency’s records.
3.5 The feedback he received from clients about Dr Kataria was mixed. He was
not liked by all the clients but some did like him and asked for him again
when vacancies arose.
3.6 He had understood from Dr Kataria’s CV that he had previous experience and
he could work as a GP. There was no mention of his disqualification on the
CV.
3.7 He had advised Dr Kataria around September or October 2002 that RAF
stations were now introducing a requirement for supplementary lists to be
used, so if he wished the agency to continue to place him he would have to
join a supplementary list. Dr Kataria had not revealed his disqualification
during this discussion.
3.8 Although it was now the agency’s practice to take up references he could not recall if the agency had taken them up for Dr Kataria; there were none on his
file save for subsequent completed tick-box references from agency clients he had worked for. The majority were good and a couple were satisfactory; some clients said they would employ Dr Kataria again.
1.
Counsel for the Respondent
1.1 Section 49F(2) of The NHS Act states a practitioner may be removed from
the medical list if his continued inclusion in the list would be prejudicial to
the efficiency of the services in question. The panel must therefore consider
if this would still be the case if Dr Kataria was allowed onto the
supplementary list.
1.2 The Respondent submitted this would still be the case as the Applicant did not seem to know the difference between right and wrong. This had been the case in 1996 and it still was, because whether or not it had been lawful to work in Scotland and for the Armed Forces, it was not proper or right for Dr Kataria to conceal the fact of his disqualification. The GMC guidance made it clear he should not omit this relevant information, but he had done so.
1.3 Dr Kataria now said he realized he was wrong, but between September 2001
and October 2002 he concealed this information in eleven jobs. Accordingly,
Counsel submitted Dr Kataria had not learned the lessons of the 1996
tribunal and he had put his own interests first. He seemed to lack insight into
when something was wrong until it was pointed out to him, but a doctor’s
moral conduct should not need prompting by others.
1.4 Dr Kataria had failed to demonstrate he was sufficiently up to date in the
practice of medicine to allow his 1996 disqualification to be revoked; he had
failed to make any contact with his local post-graduate Dean or to attend any
courses.
1.5 In Dr Gosai v The GMC (2003) the Privy Council had ruled it was essential
for public confidence in professionals to be maintained.
1.6 Counsel submitted that Dr Kataria did not have true insight to enable him to
distinguish between appropriate and inappropriate conduct and accordingly,
the panel should dismiss his application.
2.
Counsel for the Applicant
2.1 There was a difference between this panel’s function and the function of the
GMC. Ethical objections were properly considered by the GMC’s Ethics
Committee and Counsel for the Respondent had failed to show the
Applicant’s failure to distinguish between right and wrong impinged on the
services he was providing.
2.2 The GMC had investigated the complaints against Dr Kataria but not
censured him at the time as it had not considered the complaints to be
sufficiently serious. The complaints were now very elderly allegations and
had arisen when Dr Kataria was a very hard-pressed single practitioner.
2.3 If Dr Kataria had disclosed his disqualification he would have been unable to
work.
2.4 Counsel for the Respondent criticized the Applicant for failing to keep
sufficiently up to date with his CPD, but his national disqualification
prevented him from doing so.
2.5 It was not the panel’s job to take into account the effect of Dr Kataria’s
actions on public confidence; this had been a matter for the GMC and they
had decided not to censure Dr Kataria.
2.6 The evidence relating to Dr Kataria’s conduct since he was disqualified was
not particularly worrying. The unchallenged evidence of Dr Kataria and Dr
Panting was that he had then been told disqualification did not extend to
Scotland. Accordingly, it seemed harsh to criticize him for obtaining a post
there.
2.7 There was no evidence that Dr Kataria ever lied to the locum agency or his
employers about his disqualification; he was never asked. If the question was
never raised there was no reason for Dr Kataria to imagine it was relevant.
2.8
The relevant paragraph in ‘Good
Medical Practice’ was headed ‘Writing
reports, giving evidence and signing documents’. It was arguable that
heading qualifies to which documents it relates; there was no evidence in this
instance that Dr Kataria signed any such document. This was GMC territory
and it would be wrong in law for the panel to take it into account.
2.9 Dr Kataria’s evidence about his CPD was that wherever facilities were
readily available to him he went along to them. It was arguable that he should
have made some effort to contact his local post-graduate center but that was
not sufficient reason to refuse his application.
2.10 Mr Booth gave evidence he received favourable tick-box references and there
were no complaints.
2.11 The panel should take into account the Applicant’s difficult personal
circumstances and his dire financial straits.
2.12 The Applicant had indicated he did not intend to work in the NHS and he
only wanted to do RAF work. He now needed to be on a supplementary list
to do that. His working for the Ministry of Defence could not possibly be
prejudicial to NHS services. Accordingly, it was unlawful to keep him off the
list.
2.13 Finally, a long time had elapsed since the original decision which related to
very old allegations, Dr Kataria had served time and learned his lesson and
he now deserved to once more earn his living in medicine.
3. Counsel for the Respondent in response
3.1 The GMC’s findings had not mirrored those of the original tribunal. The GMC had not dealt with the same number of allegations.
3.2 The summary in the Applicant’s supplementary skeleton argument of the
original allegations made against Dr Kataria had been dangerously selective.
1. We carefully considered all of the written and oral evidence. We considered
our remit was to assess whether on the balance of probabilities Dr Kataria’s
conduct and actions since the original tribunal’s decision justified the
revocation of his national disqualification and his re-inclusion in the list
would not be prejudicial to the efficiency of NHS services.
2. We first considered Dr Kataria’s employment in Scotland as a NHS GP locum for six weeks in July and August 2001 in breach of his national disqualification. We were not inclined to place any weight on Dr Panting’s evidence relating to Dr Kataria’s belief his disqualification did not extend to Scotland as it was extremely vague hearsay testimony without a scintilla of hard evidence to back it up. We thought it was unlikely that Dr Kataria’s legal representatives would have failed to check this point and be completely wrong when the position was clearly spelt out in section 31 of the NHS (Scotland) Act 1978. We also noted that Dr Kataria had been unable to produce any written confirmation or note of this advice to support his evidence.
3. Even if we gave Dr Kataria the benefit of the doubt and accepted he was
genuinely under the impression his disqualification did not extend to
Scotland, this would not have affected our decision as there were other
factors as mentioned below to take into account.
4. We went on to consider whether Dr Kataria should have disclosed his
disqualification to the locum agency and his employers. We acknowledged
that apart from his Scottish post, none of the employment Dr Kataria obtained
was within the NHS and no-one thought to question him about his status.
However, whilst we understood why Dr Kataria might not wish to volunteer
this information, we considered good practice dictates that Dr Kataria should
have disclosed the disqualification and we agreed with the submissions of
Counsel for the Respondent that Dr Kataria had put his own interests first,
that a doctor’s moral conduct should not need prompting by others and that it
was essential that public confidence in the professions be maintained. Dr
Kataria must have known that if he revealed his status there was every chance
the locum agency and his employers would not have taken him on. This was
borne out by the Witness Statements of Wing Commander Schofield, Paul
Booth and Margaret Hanlon. The GMC ‘Good Medical Practice’ booklet
makes it clear that doctors must not write or sign documents which are false
and misleading because they omit relevant information and yet we felt Dr
Kataria did precisely that when he prepared and submitted his CV to the
locum agency and he continued to be economical with the truth and to
conceal his status in September or October 2002 when the locum agency
advised him he would need to join the supplementary list if he still wished to
be considered by the armed forces.. We did not accept his Counsel’s
submission that the heading of the relevant paragraph in the GMC booklet
meant this duty did not extend to his CV..
5. We also considered Dr Kataria’s failure to undertake any CPD. He had not
attended any courses or attempted to contact his local post-graduate centre
although it was close to his home. He submitted this was because he was
working in different places for the Armed Forces but we noted he did not
commence that work until September 2001 and then it was often part-time.
Counsel for Dr Kataria submitted that the evidence about his CPD was that
wherever facilities were readily available to him he went along to them, but
we did not accept that to be the case. In our opinion, merely to read
magazines and journals such as the BMJ and to attend case discussions with
his colleagues once or twice a week when he worked for the Armed Forces
did not constitute adequate CPD. Dr Kataria had not worked within the NHS
for almost seven years and his priority should have been to ensure he
complied with the GMC requirement for practitioners to keep their
professional knowledge and skills up to date and to provide evidence that he
had attempted to address some of the concerns that had been raised in 1996.
As a GP this could have been done as either ‘Portfolio’ based learning or by
establishing a Personal Professional Development Plan, in either of which the
evidence of professional learning could have been collated. We appreciated
Dr Kataria might have been financially constrained from attending some
courses, but we considered that at the very least he should have contacted his
local post-graduate centre at an early opportunity to discuss how he could best
maintain his CPD in the light of his particular circumstances. Although the
onus to take this step rested with Dr Kataria, we felt he could have been better
served by his advisers in this regard. Dr Kataria told us he had planned to
attend some courses but he had been ill since October 2002; now he had
recovered he planned to attend some. However, we noted he had done nothing
since 1996 and we were concerned he was simply telling us what he thought
we wanted to hear rather than what he actually intended to do.
6. We also noted that whilst there were no official complaints relating to Dr
Kataria’s clinical competence there were some complaints about his lack of
computer skills and the locum agency had told him to become computer-
literate as he had experienced difficulties in the first couple of posts it had
placed him in. To address this problem Dr Kataria told us he had learned
with a computer at a friend’s practice and a receptionist had helped him for a
couple of days at one job. Again, we felt that this was not good enough; if Dr
Kataria was serious about addressing his shortcomings and wanted to show
his re-inclusion in the list would not be prejudicial to services, he should have
arranged to obtain proper tuition or to attend a course to remedy this problem
and ensure he was sufficiently computer-literate.
7. Moreover, we were concerned that Dr Kataria had failed to provide any references or testimonials since 1996. Whilst we note he was never in one place for very long, he did undertake eleven jobs (ten in the Armed Forces and one in Scotland) and yet he never obtained an up to date reference which we consider would have been an important indicator of his recent professional competence. It was not enough to state there had been no complaints or claims against him or any other criticism of his professional conduct or competence as far as he was aware; we were looking for some positive feedback and detailed comment on his recent work.
8. Counsel for Dr Kataria submitted he does not intend to work again in the
NHS and he only wants to do RAF work, for which he now needs to be on a
supplementary list. He contended working for the Ministry of Defence could
not possibly be prejudicial to NHS services and it would therefore be
unlawful to keep Dr Kataria off the list. Whilst we accepted this might be Dr
Kataria’s present intention, we do not have power in an application of this
nature to impose conditions restricting Dr Kataria’s practice to non-NHS
posts of this nature. Once he is included in the supplementary list he would be
entitled to change his mind at any time about the type of work he wishes to do
and we felt it was disingenuous of Counsel to have indicated it would now be
unlawful to keep him off the list.
9. Our prime concern was that we did not consider there had been any robust documented or oral evidence to show Dr Kataria had moved on since 1996 and taken real steps to demonstrate he had learned from his mistakes and
addressed his shortcomings with a view to having his national disqualification
revoked. We hope that he will take note of our observations and take steps to
address our concerns to improve his future chances of having his
disqualification revoked should he wish to reapply for a review in the future.
For all the above reasons we confirm the Applicant’s removal from all lists as ordered by The National Health Service Tribunal of 25 November 1996.
Finally, in accordance with Rule 42(5) of the Family Health Services Appeal Authority (Procedure) Rules 2001, we hereby notify the Applicant that he may have rights relating to appeals under Section 11 of the Tribunals and Inquiries Act 1992.
………………………………………….
Chairman of
the Panel