IN THE FAMILY HEALTH SERVICES APPEAL
AUTHORITY CASE
NO.11575
Mr G T Carney -
Chair
Dr P S Garcha - Professional Member
Mrs V E M Barducci
- Member
B E T W E E N :
DR
SISIR KUMAR GHOSH
(GMC
Number 1719077)
Appellant
- and –
GREENWICH
TEACHING PRIMARY CARE TRUST
Respondent
DECISION
1
This is an appeal by
Dr Sisir Kumar Ghosh (“Dr Ghosh”), against the decision of the Greenwich
Teaching Primary Care Trust (the “PCT”) to remove his name from its list of general
practitioners pursuant to Regulation 10 of The National Health Service
(Performers List) Regulations 2004 (“the Regulations”).
2
For the reasons set
out below the decision of the Panel is that the appeal is dismissed.
3
After reaching our
decision in the substantive appeal we considered whether or not there should be
a National Disqualification of Dr Ghosh under Section 49N(1) of the National
Health Services Act 1977 as amended (the “Act”).
4
The decision of the
Panel is that, for the reasons set out below, Dr Ghosh shall be disqualified
from inclusion in any medical performers list as is described or referred to in
Section 49N(1) of the Act. We further
direct that a copy of our decision shall be sent to the several bodies listed
in Rule 47(1) of the Family Health Services Appeal Authority (Procedure) Rules
2001 (“the Rules”).
REASONS; The Substantive Appeal
BACKGROUND
MATTERS
5
The appeal was heard
by Mr G T Carney (Chairman), Dr P S Garcha and Mrs V E M Barducci at the Care
Standards Tribunal, 18 Pocock Street, London SE1 0BW, on the 9 March, 5 April,
11, 12 and 13 May and the 16 and 17 June 2005.
The hearings on the 9 March and 5 April were to deal with preliminary
applications and directions.
6
Prior to the hearing
all three members signed a declaration confirming that they had not had any
prior interest or involvement in the appeal which would preclude them from
considering the evidence in an independent and impartial manner. This was re-affirmed and confirmed to the
hearing on the 11 May 2005.
7
At the hearing held on
the 9 March 2005 Dr Ghosh was represented by Mr Giles Collins of Counsel and
the PCT by Mr Duncan Gordon-Smith, Solicitor for the PCT. At the hearing on the 5 April 2005 Dr Ghosh
was represented by Mr Martin Forde of Counsel and the PCT by Mr Oliver Sanders
of Counsel. On all the remaining days
of the hearing Dr Ghosh was represented by M Martin Forde of Counsel and the
PCT by Mr Neil Garnham QC.
8
Dr Ghosh qualified in
1970. Dr Ghosh has practised in the
Greenwich Primary Care Trust area since 1980.
9
On the 12 October 2004
the PCT wrote to Dr Ghosh informing him that it was currently considering
whether or not to remove him from its Performers List pursuant to Regulation 10
of the Regulations.
10
An oral hearing to
consider Dr Ghosh’s removal from the PCT’s Performers List was held on the 11
November 2004. Dr Ghosh attended that
hearing together with his representative Mr John Williamson from the Medical
Defence Union.
11
By way of a letter
dated 22 November 2004 the PCT informed Dr Ghosh that its panel had unanimously
decided that he should be removed from the PCT’s Performers List on the grounds
that:
(i)
His continued
inclusion in the Performers List would be prejudicial to the efficiency of the
services which those included in the Performers List perform; and
(ii)
He was unsuitable to
be included in the PCT’s Performers List.
12
By way of a letter
from his solicitors dated 7 December 2004 Dr Ghosh appealed to the FHSAA
including, inter alia, a concise statement of the grounds of his appeal.
13
On the 7 January 2005
the PCT informed the FHSAA of its intention to oppose the appeal lodged on
behalf of Dr Ghosh and at the same time lodged a statement of grounds on which
the PCT intended to rely in opposing the appeal.
THE
LAW
14
Prior to the 1 April
2004 Dr Ghosh’s name was included on the PCT’s Medical List. By virtue of
paragraph 2 of Schedule 1 of the Regulations, Dr Ghosh’s name was transferred
to the PCT’s Medical Performers List with effect from that date.
15
The power to decide to
remove the name of a practitioner from the list of general practitioners
maintained by a PCT had formerly been provided by Section 49F(1)(a) of the
Act. That sub-paragraph was repealed by
Section 196 and Schedule 14 Part 4 of the Health and Social Care (Community
Health and Standards) Act 2003. That
repeal took effect from the 1 April 2004.
16
The new power to
remove a practitioner’s name from the Performers List is provided by Regulation
10 of the Regulations which provides as follows;
“(3) The
Primary Care Trust may remove a performer from its Performers List where any of
the conditions
set out in paragraph (4) is satisfied.
(4) The
conditions mentioned in paragraph (3) are that
(a)
his continued inclusion in its Performers List would
be prejudicial to the efficiency of the services which those included in the
relevant performers list perform (“an efficiency case”);
(b)
he is involved in a fraud case in relation to any
health scheme; or
(c)
he is unsuitable to be included in that performers
list (“an unsuitability case”)”.
17
A PCT contemplating
removing a practitioner’s name from a list must give him notice that it is
considering doing so. Regulation 10(8)
provides;
“Where
a Primary Care Trust is considering removing a performer from its performers
list under paragraphs (3) to
(6)……. it shall give him
(a)
notice of any allegation against him;
(b)
notice of what action it is considering and on what
grounds;
(c)
the opportunity to make written representations to
it within 28 days of the date of the notification under sub-paragraph (b); and
(d)
the opportunity to put his case at an oral hearing
before it, if he so requests, within the 28 day period mentioned in
sub-paragraph (c).”
18
Paragraph 11 of the
Regulation sets out the criteria for the decision on removal. Paragraph 12 of the Regulation deals with
the circumstances in which the PCT can order contingent removal.
19
A practitioner has a
right of appeal against that decision.
Regulation 15 provides:
(1)
A Performer may appeal (by way of re-determination)
to the FHSAA against a decision of a Primary Care Trust mentioned in paragraph
(2) by giving notice to the FHSAA.
(2)
The Primary Care Trust decisions in question are
decisions….(d) to remove the performers under Regulations….10(3)….
(3)
On appeal the FHSAA may make any decision which the
Primary Care Trust could have made”.
APPELLANT’S CASE
20
Dr Ghosh’s grounds of
appeal were set out in the concise statement of grounds of appeal submitted
with his notice of appeal and a supplementary concise statement of grounds of
appeal submitted as a result of a direction of this Panel. The arguments put forward in those grounds
of appeal were as follows;
(1)
That removal of Dr
Ghosh’s name from the List was premature, unreasonable and wholly
disproportionate. In support of this it
was contended;
(i)
that Dr Ghosh had been
referred to the Committee on Professional Performance of the General Medical
Council (“GMC”) and that at a hearing on the 25 January 2005 the Committee on
Professional Performance (“CPP”) had determined that conditions should be
imposed on Dr Ghosh’s registration. It
was further contended that the CPP had reconsidered his case on three
occasions, on the last of which in September 2004 it had decided to suspend Dr
Ghosh’s Registration for a period of six months from the 3 October 2004. In these circumstances the GMC had not
considered that immediate suspension was necessary, in fact Dr Ghosh has
appealed the decision of the CPP and that appeal has yet to be determined.
(ii)
It was further
contended that the CPP (or its successor) are to reconsider Dr Ghosh’s case in
2005 and have stated that at that time they would expect to receive evidence
from Dr Ghosh of his continued efforts to improve his performance. It was pointed out that Dr Ghosh was due to
sit the Knowledge MCQ in February 2005 and was due to attend the Deanery’s
Fresh Start course on the 9 and 10 December 2004.
(iii)
It was also contended
that in the light of the fact that the GMC process was still ongoing and, it
was clearly envisaged that Dr Ghosh should be given a further opportunity to
satisfy the GMC’s conditions, it was perverse and disproportionate for the PCT
to remove Dr Ghosh from its Performers List and that the public could be
properly protected by the imposition of conditions.
(iv)
It was also contended
that the PCT’s decision to remove Dr Ghosh’s name from its Performers List would
affect his ability to fulfil the GMC’s conditions, and this again made the
decision to remove his name unreasonable and perverse.
(2)
That the procedures
adopted and consequently the decision taken to remove Dr Ghosh’s name from the
Performers List were unfair to Dr Ghosh, and in particular it was contended as
follows:
(i)
That the PCT’s
decision to suspend Dr Ghosh from its Performers List taken on the 17 August
2004 followed the receipt by the PCT of a letter dated the 4 August 2004 from
Dr Ghosh’s former colleague Dr Essien.
It was argued that the letter which was sent immediately following a
dispute between Dr Ghosh and Dr Essien over financial matters contained a
number of anonymised undated and unsubstantiated allegations regarding Dr
Ghosh’s treatment of certain patients.
(ii)
It was further
contended that the PCT had stated that the decision had been taken to suspend
Dr Ghosh whilst Dr Essien’s allegations were investigated. In fact, no such investigation took place
and no further details or evidence were produced or relied upon in support of
those matters by the PCT.
Notwithstanding this, reference to those matters were made in the
statement of case, the supporting documents and the oral submissions made by
the Investigating Officer, Mr Burden, before the panel at the hearing on the 11
November 2004. It was contended that
the inclusion and referral to those matters was unfair and prejudicial and
would have, or may have, influenced, consciously or subconsciously, the
decision of the panel to remove Dr Ghosh’s name from the Performers List.
(iii)
It was further
contended that the prejudice and unfairness to Dr Ghosh caused by the
references to the allegations by Dr Essien was compounded by the fact that two
of the PCTs’ members from the hearing
at which a decision to suspend Dr Ghosh was taken by the PCT based largely on
Dr Essien’s allegations, also sat on the PCT’s
panel who decided to remove Dr Ghosh’s name from the Performers List on
the 11 November 2004. It was contended
that these two members were likely to have been biased against Dr Ghosh as a
result of having sat on the suspension panel.
(3)
That the procedure
adopted by the PCT was unfair and in breach of the statutory rules in that the
PCT failed to give Dr Ghosh proper notice of the allegations against him in
accordance with Regulation 10(8)(a) of the Regulations before taking a decision
to remove him, nor did it allow Dr Ghosh 28 days in which to make written
representations before the hearing in accordance with Regulation 10(8)(c) of
the Regulations. In particular it was
stated that Dr Ghosh received a letter from the PCT dated 12 October 2004
together with a bundle of documents by courier on the 14 October 2004. The statement of case referred to in the
letter was not included. The statement
of case was not provided until Dr Ghosh’s then solicitor made a written request
for the said document which contained full details of the allegation against
him. The document was received by
facsimile on the 27 October 2004.
(4)
That the procedures
adopted by the PCT were inherently unfair and contrary to the principles of
natural justice and/or Article 6 of the Human Rights Act in that Dr Ghosh was
not permitted to be legally represented at the hearing on the 11 November 2004
despite the seriousness of the consequences for him and the fact that his
rights were affected and/or determined.
(5)
In the supplementary
Concise Statement of Grounds of Appeal it was confirmed that Dr Ghosh
challenged the PCT’s conclusions that
the continued inclusion of his name in the Performers List would be prejudicial
to the efficiency of medical services, and further, that Dr Ghosh was
unsuitable to be included in the Performers List.
(6)
That the public would
have been adequately protected by the imposition of conditions by the PCT on Dr
Ghosh, and that if this had been done Dr Ghosh would have been able to resume
work for the benefit of his patients, and the medical profession
generally. Further, that the decision
of the PCT to remove Dr Ghosh was demonstrably premature and disproportionate
and had thwarted the clear intention of the GMC, who themselves have to act in
the public interest.
THE
RESPONDENT’S CASE
21
In the PCT’s response
to Dr Ghosh’s grounds of appeal it was contended on behalf of the PCT;
(1)
That Dr Ghosh had
practised in the PCT’s area since around 1980.
That in the past there had been a number of concerns around his list
size and his failure to address those concerns in a satisfactory and
expeditious manner. Those concerns were
set out in detail, but for the purposes of this decision we do not prepare to
set out every detail, but will set out the principle ones:
(i)
The PCT became aware
of information that gave arise to concerns about Dr Ghosh’s clinical
practice. The information included the
findings of the CPP on the 5 January 2002 when it was noted with particular
concern;
● Dr Ghosh’s history of taking and examination
skills;
● Dr Ghosh’s referral practices;
● Dr Ghosh’s keeping of medical records;
● Dr Ghosh’s follow-up of patients with chronic
conditions;
● the lack of appropriate emergency drugs kept
available by Dr Ghosh in his practice;
● Dr Ghosh’s reliance on the ambulances;
● a lack of systematic plan for maintaining
knowledge and skills; and
● the absence of clinical audit of his practice.
As a
result of its concerns the CPP placed conditions on Dr Ghosh’s continuing registration.
(ii)
That the CPP
reconsidered the matter on the 7 May 2003 when it found that thwas still a
substantial amount of work to be undertaken by Dr Ghosh in addressing the
deficiencies previously identified. The
CPP placed further conditions on Dr Ghosh’s continuing registration.
(iii)
By a letter dated the
24 June 2003 Dr Mary Spencer raised concerns about Dr Ghosh’s clinical
performance and core knowledge based on a series of practical training sessions
which he had taken with a view to gaining to the Diploma of Family Planning and
Reproductive Health Care.
(iv)
That on the 21 July
2003 the GMC’s Professional Conduct Committee considered concerns that had been
raised by Dr Ghosh’s prescribing.
Restrictions were placed on Dr Ghosh’s registration including a
restriction on prescribing of drugs of addiction.
(v)
That in December 2003
Dr Ghosh took the MCQ Component of Summative Assessment and that Dr Ghosh
scored only 48% when the pass mark was 70% and where 94% of those taking the
examination had passed it.
(vi)
At a hearing before
the CPP on the 9 February 2004 the CPP concluded that a great deal of work
remained to be carried out to deal with the clinical deficiencies in respect of
Dr Ghosh’s practice. Similar conditions
to those imposed before were placed on his continuing practice.
(vii)
On the 6 May 2004 a
panel appointed by the PCT considered the contingent removal of Dr Ghosh from
its Performers List. As a result of the
concerns about Dr Ghosh’s clinical ability the panel decided that Dr Ghosh’s
inclusion on the PCT’s Performers List was prejudicial to the efficiency of
services provided by him. However, the
panel concluded that any prejudice to the efficiency of their services could be
prevented by the imposition of conditions.
The PCT imposed conditions on Dr Ghosh’s inclusion on its Performers
List.
(viii)
Dr Ghosh appealed to
the FHSAA against the PCT’s decision to contingently remove him from the
Performers List. The PCT agreed to
review its decision in relation to the imposition of four of the conditions
imposed and Dr Ghosh withdrew his appeal.
(ix)
The PCT received a
letter from Dr A R Essien dated 4 August 2004.
Dr Essien raised serious issues about Dr Ghosh’s ability to perform
primary medical services. As a result
of this letter and the GMC’s previous findings an oral hearing was held on the
17 August 2004 to consider whether Dr Ghosh should be suspended under
regulation 13 of the Regulations. The
panel decided to suspend Dr Ghosh pending further investigations into the allegations
made by Dr Essien.
(x)
On the 2 September
2004 the CPP resumed its consideration of Dr Ghosh’s case and noted that little
progress had been made by Dr Ghosh in a number of significant areas. The CPP suspended Dr Ghosh from the register
for six months after finding that this was necessary for the protection of the
public.
(xi)
The grounds of
opposition then went on to refer to the oral hearing held on the 11 November
and the subsequent decision letter dated the 22 November 2004 to which we have
referred to above.
(2)
The statement of
grounds for opposing the appeal then went on to deal with the Concise Statement
of Grounds of Appeal.
(3)
With regard to the
first ground, namely that the removal of Dr Ghosh’s name from the List was
premature, unreasonable and wholly disproportionate, it was contended by the
PCT that:
(i)
The functions of the
PCT and the GMC are distinct and separate.
Further, that the PCT has a statutory duty of quality under section 45
of the Health and Social Care (Community Health and Standards) Act 2003 and as
part of that function it has powers to suspend, remove and contingently remove
general practitioners from its Performers List.
(ii)
That although both the
PCT and the GMC have distinct and separate roles to play, the work of one
organisation may be relevant to the other in carrying out its work. In the case of Dr Ghosh, the consideration
of Dr Ghosh’s practice by the CPP on three occasions since 2002 covered
material that raised the question of whether there were and are serious
deficiencies in Dr Ghosh’s practice and whether Dr Ghosh had made any progress
in rectifying those deficiencies over more than two years.
(iii)
That the work of the
PCT is not, however, coupled to the work of the GMC and there is no requirement
on the PCT to fetter itself with respect to the decisions it is empowered to
take in relation to its Performers List.
The PCT is not, therefore, required to wait for any GMC procedure to be
completed before exercising its powers.
(iv)
The PCT’s position is
that over more than two years serious concerns were raised about Dr Ghosh’s
practice and considerable efforts were made by a number of organisations to
enable him to rectify failings in his practice. Little progress was made by Dr Ghosh and in these circumstances
the PCT’s decision to remove him from it’s Performers List was not premature
nor was it unreasonable or disproportionate.
(4)
With regard to the
second ground that the procedures adopted, and consequently the decision taken
to remove Dr Ghosh’s name from the Performers List was unfair, the PCT
contended that:
(i)
Dr Ghosh’s argument in
relation to the decision to suspend him by the PCT is not relevant to the
present appeal to the FHSAA.
(ii)
With regard to the
inclusion of material relating to Dr Essien’s letter of the 4 August 2004 was
not unfair and prejudicial and did not influence the decision of the PCT’s
panel. The letter informing Dr Ghosh of
the panel’s decision, which was dated the 27 November 2004, made it clear that
the panel had regarded his suspension as a neutral act and that it had agreed
with Dr Ghosh’s arguments that Dr Essien’s allegations were pending
investigation and therefore unproven, and in consequence the panel had agreed
that the suspension, and the allegations made by Dr Essien should not form part
of their deliberations.
(iii)
That the PCT did not
accept that the inclusion of material contained in Dr Essien’s letter and the
case presented by Mr Burden was unfair or prejudicial.
(iv)
It denied that Dr
Challacombe and Ms Nicholls, who were members of the PCT’s panel, were likely
to be biased against Dr Ghosh, or were biased against him, and that as members
of the PCT’s panel they had both considered the relevant criteria for a
decision to remove a performer from the List and the relevant supporting
evidence.
(5)
With regard to the
third ground of appeal namely that the procedure adopted by the PCT was unfair
and in breach of the statutory rules, the PCT argued that:
(i)
The PCT did not accept
the detail of events suggested by Dr Ghosh and set out the sequence of events
which in its view supported its argument that the procedure was fair, was not
contrary to natural justice and that Dr Ghosh’s Article 6 rights were not
infringed.
(ii)
The PCT had complied
with regulation 10(8) of the Regulations and that Dr Ghosh had received by way
of a letter dated the 12 October 2004 from the PCT sufficient details to
provide him with proper notice.
(6)
With regard to the
fourth allegation that the procedures adopted by the PCT were inherently unfair
and contrary to the principles of natural justice and/or Article 6 of the Human
Rights Act the PCT contended as follows:
(i)
They referred to
pargraph 31.7 of the Department of Health Guidance on List Management dealing
with the fact that there would be no right to legal representation at the
hearing held by the panel appointed by the PCT.
(ii)
That in any event Dr
Ghosh had the right, which he had exercised, to appeal the PCT’s decision to
the FHSAA.
(iii)
That the PCT
maintained that the procedures used at the oral hearing were not unfair and nor
were they contrary to the principles of natural justice and that lastly Dr
Ghosh’s Article 6 rights were not infringed.
(7)
In conclusion the PCT
stated that it considered its decision to remove Dr Ghosh from its Performers
List was reasonable and proportionate.
PRELIMINARY
HEARINGS AND APPLICATIONS
Application for a hearing De
Novo
22
At the hearing on the
9 March 2005 Counsel for Dr Ghosh made an application that the appeal should be
dealt with by way of a hearing de novo and this application was opposed by the
solicitor representing the PCT. We
decided that the hearing of the application should be adjourned for hearing on
the 5 April and that skeleton arguments in relation to Dr Ghosh’s application
should be submitted by both parties prior to that hearing. We made further directions as to the conduct
of the matter.
23
At the hearing on the
5 April 2005 skeleton arguments were
submitted both on behalf of Dr Ghosh and the PCT and were considered by
us. We also heard submissions and legal
argument from Mr Forde on behalf of Dr Ghosh and Mr Sanders on behalf of the
PCT.
24
We decided that in
essence there was a lot of common ground between the parties and that the
reality of the application was “who goes first”. We decided that there was an overriding need for there to be a
fair, unbiased and impartial hearing taking account of not only our statutory
obligations, but the obligations imposed by common law and the Human Rights
legislation. We were unanimously of the
opinion that in all the circumstances of this appeal and having regard to the
grounds of appeal that we would prefer to hear from the PCT first and then hear
Dr Ghosh’s case. We determined that the
hearing should be de novo. We made
further directions for the conduct of the appeal.
Application for the Appointment of a New
Panel
25
At the commencement of
the substantive hearing on the 11 May 2005 Mr Forde made an application on
behalf of Dr Ghosh for the appointment of a new Panel. The basis of the application was the
inclusion of a report made by a Dr Pearlgood in the PCT’s papers which raised
certain prejudicial issues. Mr Garnham
on behalf of the PCT accepted that the document should not have been included
and invited the Panel to take no account of the document and to disregard it. Mr Garnham further suggested that it should
be removed from the bundle.
26
We adjourned to
consider the matter and we were unanimously of the view that we were able to
ignore the report and that it should be removed from the bundle. Having confirmed this decision to the
parties Mr Forde said that Dr Ghosh was still very unhappy about the Panel
continuing to deal with the appeal.
27
Mr Forde said that Dr
Ghosh was in no way critising the Panel, but he was concerned that in addition
to the Dr Pearlgood report the Panel had also seen Dr Essien’s letter of the 4
August 2005 which he felt was an inflammatory document and which would have
subconsciously affected the Panel’s views.
In particular Dr Ghosh felt that the PCT’s panel had been influenced by
Dr Essien’s letter. In the light of
both documents he felt the Panel were in danger of being biased and should
recluse themselves.
28
This submission was
opposed by Mr Garnham and he stated that the documents involved were at best of
marginal relevance.
29
We again retired and
considered the arguments very carefully.
None of the members of the Panel had read the Pearlgood report closely
as it had been included in our bundles at a late stage. We decided that we had no preformed views of
the case, it was a hearing de novo and we all came with an open mind. We were of the view that we would be
deciding the matter on the basis of the evidence and documents actually dealt
with at the hearing. We all felt that
we were in a position to take an independent and unbiased view and therefore
decided to proceed with the hearing and informed the parties accordingly.
Professor Wall
30
At the hearing on the
16 June 2005 Mr Forde made an application on the part of Dr Ghosh to adduce in
evidence a report prepared by Professor Wall and further to call Professor Wall
to give evidence. This application was
opposed by Mr Garnham on behalf of the PCT.
31
We heard extensive
argument from both Mr Forde and Mr Garnham and were provided with a copy of the
report and the letter of instruction sent to Professor Wall. We retired to consider the position.
32
The matter was considered
by us at some length, but our unanimous view was that the ultimate test was
whether it was just and reasonable to admit the evidence at this stage in the
appeal hearing. We concluded that the
evidence was being adduced at a very late stage, after the PCT’s evidence had
been completed and part of the way through Dr Ghosh’s evidence. We felt that
Professor Wall’s evidence related to issues which had always clearly been in
dispute over a period of several months.
We were of the view that to admit the report now would not be reasonable
and would be prejudicial to the PCT.
Whilst the argument had been put forward that this prejudice could be
dealt with by an adjournment and providing the opportunity for the PCT to
produce further evidence in response, it was our strong view that this would
only lead to further significant delay and would not be in the interest of
either party and indeed it would not significantly assist the Panel in reaching
our decision.
33
We informed the
parties accordingly.
34
In accordance with our
decision reached on the 5 April we heard the case for the PCT first.
Evidence
for the Respondent
35
Mr Garnham opened his
case and then a number of witnesses were called.
Dr Spencer
36
Until 3 months before
making her statement Dr Spencer was the lead Doctor for sexual and reproductive
health for the PCT.
37
On the 16 October 2002
Dr Ghosh wrote to her requesting practical training for the Diploma of the
Faculty of Family Planning (“DFFP”).
She was aware that conditions had been placed on Dr Ghosh by the
GMC. Dr Spencer explained that the DFFP
was comprised of a two day theory course which covered all the core knowledge
required and at least 8 practical sessions in a Family Planning Clinic. Dr Ghosh attended the theoretical element of
the DFFP course at Whipps Cross Hospital on the 12 and 13 October 2002.
38
The first four of a
scheduled 8 practical training sessions took place on the 7 February, the 6
March, the 11 March and 17 March 2003.
Dr Spencer explained that at the first practical session on the 7
February Dr Ghosh completed a questionnaire produced by the Faculty which is
designed to assess trainees who may have problems with core knowledge relating
to family planning. The questionnaire
consisted of 60 questions and those taking the questions have to answer “true”
or “false” to each of those 60 questions.
The questionnaire is not negatively marked. Dr Ghosh only scored 37 out of 60. Dr Spencer gave evidence that this was a lower score than she
would have expected of a person who had completed the theoretical element of
the DFFP course.
39
On the 23 April 2003
Dr Spencer wrote to Dr Ghosh informing him that she was not prepared to
continue training him for the DFFP. Her
letter, which was enclosed in our bundle, set out in some detail the three
areas of concern that had prompted Dr Spencer’s decision.
40
The first area was the
failure of Dr Ghosh to bring a log book to the practical training
sessions. Dr Spencer stated that she
had explained to Dr Ghosh that it was essential that he brought a log book
which recorded his contact with patients to the practical sessions and although
Dr Ghosh had said he would bring such a log book he failed to do so despite
reminders from Dr Spencer. This lead to
Dr Spencer having concerns about Dr Ghosh’s understanding of the importance of
the log book and the structure of his DFFP course.
41
The second area of
concern was Dr Ghosh’s poor knowledge and his difficulties in retaining
information. Dr Spencer was concerned
that Dr Ghosh’s score of 37 out of 60 in relation to the Faculty questionnaire
completed on the 7 February was much lower than she would expect from someone
who had completed the theoretical element of the DFFP course. Dr Spencer stated that at the second practical
session she went through the questionnaire in some detail with Dr Ghosh and
supplied him with the correct answers which she discussed with him. She also suggested basic reading should be
undertaken by him. However, after the
fourth session she asked Dr Ghosh to complete the same questionnaire and on
this occasion he achieved only 40 points out of 60.
42
Dr Spencer said that
the results of this test were of great concern to her, she would have expected
somebody who had completed the theoretical course and four practical sessions
to score 50 or more points. However, in
this case Dr Ghosh had also been told the correct answers and Dr Spencer had
discussed the questions in some detail with him. Furthermore, when she reviewed Dr Ghosh’s answers in relation to
the second questionnaire against the first questionnaire she noticed that 8 of
the incorrect answers he gave on the second occasion had been answered
correctly on the first questionnaire.
43
Dr Spencer’s view was
that these results indicated that Dr Ghosh’s core knowledge base was insecure
and that his ability to improve that knowledge base was severely impaired by
his problems in retaining information.
For this reason it was inappropriate for Dr Ghosh to continue with the
DFFP course because he would not reach the required standard.
44
The third area of
concern was cross infection. Dr Spencer
said that the prevention of cross infection was a core skill for health care
professionals. She gave an example
where on one occasion Dr Ghosh had touched with his bare hands a piece of
equipment that had just been used to insert a contraceptive device into a
patient. Not only had he touched it
when he should not have, but he then placed it on a sterile trolley thereby
de-steralising it. Dr Spencer’s
evidence was that this showed a deficiency in a core skill which had potential
to put both Dr Ghosh and his patients at risk.
45
Dr Spencer’s
conclusion was that Dr Ghosh’s performance in the four practical sessions was
poor and that the fundamental deficiencies which she had observed lead her to
conclude that, even with further training, he would be unable to attain the
DFFP. This was a rare occurrence in her
experience.
46
Dr Spencer also said
that she had found communication with Dr Ghosh to be quite difficult and that
at some times he appeared to be confused with patients.
47
Under
cross-examination Dr Spencer said that Dr Ghosh had told her that he had
difficulty in finding time to do the reading recommended by her. She also accepted that Dr Ghosh may possibly
have been nervous.
48
We found Dr Spencer to
be an impressive and fair witness.
Jane Hitchcock
49
In her witness
statement June Hitchcock explained that she worked for the Lambeth Primary Care
Trust, Public Health Department. She
stated that she was a registered nurse, a qualified district nurse and a nurse
prescriber and had an MSc in medical science and a diploma in infection
control.
50
June Hitchcock’s role
had been to carry out infection control audits in General Practitioner
practices and PCT clinics. On the 23
April 2003 she had visited Dr Ghosh’s practice and carried out a clinical audit
in which she identified a number of concerns.
June Hitchock explained that it takes a little time to produce a full
audit, but that on the 25 April 2003 she wrote to Dr Ghosh setting out two key
areas of concern.
51
The first area of
concern had been that Dr Ghosh was not storing vaccines according to current
guidelines. He was using a domestic
refrigerator to store vaccines and June Hitchcock noted that the refrigerator
felt warm and the thermometer in the refrigerator did not work. This meant that the efficacy of the vaccines
could not be guaranteed and this could potentially impact adversely on
patients’ safety. Ms Hitchcock stated
that her concerns were serious and that she had made this clear to Dr Ghosh and
had provided various recommendations.
52
Ms Hitchcock stated
that she had signed off her full report on the 1 May 2003 and again she made
further recommendations. She stated
that it was clear to her that at the time of her visit on the 23 April 2003
both Dr Ghosh and his nursing staff were not adhering to best practice. Both her letters were included in our
bundle.
53
Ms Hitchcock asked Dr
Ghosh to provide certain information including a list of recipients of the
vaccines during the six month period prior to her visit. She also asked for a list of vaccines that
had to be destroyed.
54
Although Dr Ghosh did
implement many of her recommendations he failed to provide all the information
requested over a considerable period of time, despite both telephone and
written reminders. Ms Hitchcock also
found it difficult to arrange dates for a review visit.
55
Her second major area
of concern was the condition of the bench top steam sterilizers. She said that the sterilizer equipment was
not maintained to current guidelines and therefore the sterility of all devices
being processed could not be guaranteed and she made various recommendations.
56
Ms Hitchcock said that
she felt that Dr Ghosh’s response was far slower than she would have expected,
given the seriousness of the concerns she identified in her audit of the 23
April 2003 which had the potential, in her view, of prejudicing patient
safety. Ms Hitchcock stated that in her
experience a delay of five months between an initial visit and a review visit,
and before complying with recommendations, was unusually long and that in her
view this delay resulted from Dr Ghosh’s conduct. She felt that a reasonable period would have been four weeks.
57
During cross
examination Ms Hitchcock stated that she had found similar deficiencies in
other practices and that she had experienced delays, but nothing as long as
five months. She stated that she had
eventually handed over the issue of the lack of response about vaccines to the
Consultant in Communicable Disease Control for Bexley and Greenwich.
58
Ms Hitchcock also said
under cross examination that she was encouraged that many of the
recommendations made by her were in place when she eventually carried out her
review visit on the 23 September.
59
In answer to the Chair
Ms Hitchcock said that she felt that her report raised serious issues because
of the risk of infection to patients.
Dr Challacombe
60
Dr Challacombe gave
evidence that she was a registered medical practitioner who had worked as a
principal in general practice in Greenwich since 1971 and that she was one of
the medically qualified representatives on the Professional Executive Committee
of the PCT and that since July 2003 she has been the GP Clinical Governance
lead.
61
Dr Challacombe said
that she had known Dr Ghosh since the 1980’s as they were both general
practitioners working in the same area and gave evidence about the
circumstances in which she had become professionally involved with Dr Ghosh in
her role as Clinical Governance lead in recent years.
62
Dr Challacombe said
that she had sat on the panel which had considered Dr Ghosh’s suspension on the
17 August 2004 and that at that hearing Dr Ghosh had objected to her presence
on the panel because she had known him in a professional capacity before. However it had been explained to Dr Ghosh
and his representative that as Clinical Governance lead it was likely that she
would know most of the local GP’s. Dr
Ghosh and his representative accepted this explanation and did not pursue the
point.
63
Dr Challacombe
explained that at the hearing on the 17 August the panel considered the
allegations made in Dr Essien’s letter and that it had concluded that the
seriousness of those allegations meant that it was necessary in the public
interest and for the protection of the public for the PCT to suspend Dr Ghosh pending
an investigation of the allegations. Dr
Challacombe said that taking that decision they had borne in mind the grounds
on which a PCT may decide to suspend a performer as contained in regulation 13
of the Regulations.
64
Dr Challacombe also
confirmed that she had sat on the panel considering Dr Ghosh’s removal from the
Performers List on the 11 November 2004 and explained in some detail the
process and procedures adopted. She
confirmed that neither Dr Ghosh nor his representive had objected to her presence
on that panel.
65
Dr Challacombe stated
that she was aware that suspension was a neutral act and that she was also
aware that at the hearing on the 11 November 2004 the panel required convincing
evidence in order to draw a conclusion as to whether the PCT should remove Dr
Ghosh from its Performers List.
66
Dr Challacombe gave
evidence about the approach of the panel at the removal hearing in relation to
Dr Essien’s letter and the subsequent suspension of Dr Ghosh and said that the
panel had decided that both the fact of suspension and the allegations made by
Dr Essien should not form part of its deliberations or be taken into account.
67
Dr Challacombe then
gave evidence about Dr Ghosh’s allegations of bias and she denied categorically
that she was or is in any way biased against Dr Ghosh or indeed that any
reasonable observer would think that she might be biased.
68
Under cross
examination Dr Challacombe confirmed that the panel members knew each other
well. She was aware of difficulties in
finding someone to investigate Dr Essien’s allegations.
69
Dr Challacombe said
that she had considered the issues about conflict, but that she felt that her
experience as clinical governance lead and her general experience suited her
for the role of sitting on the panel.
70
Dr Challacombe said
that the panel had a perception that the GMC was undertaking assessment of Dr
Ghosh and that they had imposed a list of conditions with support in place, for
example, via the Deanery. It was her
understanding that there was not much money available for remedial training in
the PCT funds.
71
We found Dr
Challacombe to be an open and fair witness.
Elizabeth Nicholls
72
Elizabeth Nicholls
gave evidence that she had been a Registered General Nurse since June 1978 and
that since May 1992 she had worked as a nurse in general practice and for the
last five years she had worked as a nurse practitioner at the Vanbrugh Hill
Health Centre, Greenwich. This is the
practice in which Dr Challacombe also works.
73
Ms Nicholls explained
that she was the nurse representative on the Board of the PCT. Ms Nicholls also explained that the Board is
advised on clinical matters by the Professional Executive Committee and that
she has been the clinical governance lead for that committee since her
appointment to the Board in 2002.
74
Ms Nicholls confirmed
that she had sat on the PCT panel which considered Dr Ghosh’s removal on the 11
November 2004. She went through the
process and procedures that had been adopted and dealt with the allegations made
by Dr Essien and confirmed that that panel had unanimously agreed that Dr
Ghosh’s suspension and the allegations made by Dr Essien were not to form part
of the panel’s deliberations.
75
Ms Nicholls also dealt
with the allegation of bias and said that she was not and is not biased against
Dr Ghosh and that she had put Dr Essien’s allegations out of her mind when
taking the decision that Dr Ghosh should be removed from the Performers
List. She also gave evidence that
neither Dr Ghosh nor his representative made any objection to her presence on
the panel at the hearing on the 11 November 2004.
76
Ms Nicholls said that
the panel’s conclusion was that Dr Ghosh could not comply with the required
standards for general practitioner. She
said that she had not formed a view as to what support Dr Ghosh was receiving. She confirmed in answer to Dr Garcha that
she understood that Mr Jeremy Burden was the person who knew what support the
PCT was providing to Dr Ghosh.
Mr Jeremy Burden
77
We heard fairly
lengthy evidence and cross examination of Mr Burden.
78
Mr Burden confirmed
that at the time of these events he was director of primary care at the PCT and
that it was in his capacity as Director of primary care that he became involved
in this matter. He confirmed that he
was the Investigating Officer at the hearing to consider Dr Ghosh’s removal
from the Performers List on the 11 November 2004 and that as such he presented
the PCT’s case to the panel.
79
He dealt with Dr
Ghosh’s complaints about the procedures adopted and in particular the letter
from Dr Essien. Mr Burden confirmed
that there had been difficulty in finding someone to investigate Dr Essien’s
allegations although someone had now been appointed. Mr Burden also confirmed that the panel had decided that they
would have no regard to Dr Essien’s allegations.
80
Mr Burden also dealt
with the allegations of bias against Dr Challacombe and Ms Nicholls and stated
that no objection had been taken to the presence of either Dr Challacombe or Ms
Nicholls on the panel at the hearing on the 11 November 2004.
81
Mr Burden dealt with
the issues raised by Dr Ghosh with regard to legal representation and referred
to the document “Delivering Quality in Primary Care – Advice for Primary Care
Trusts on List Management” and in particular paragraph 31.7 which addressed the
issue of legal representation.
82
Mr Burden dealt with
the allegation by Dr Ghosh that the procedure adopted by the PCT was unfair as
it breached statutory rules and in particular that Dr Ghosh had not been
provided with proper notice of the allegations against him and that he had not
been supplied initially with the copy of the statement of case. Mr Burden contested Dr Ghosh’s allegations
about these matters.
83
Mr Burden gave
evidence in relation to paragraph 1 of the Concise Statement of Grounds of
Appeal that Dr Ghosh had lodged dealing with the suggestion that Dr Ghosh’s
removal from the PCT Performers List was premature. Mr Burden gave lengthy evidence about this, in particular Mr
Burden pointed out that Dr Ghosh had conditions placed upon his practice by the
GMC in 2002 in order to give him the opportunity to demonstrate to the GMC that
he was capable of achieving the necessary improvements in his practice. He went on to explain that the CPP
reconsidered Dr Ghosh’s practice in 2003 and considered that he needed further
time in which to demonstrate a reasonable improvement and it also, at that
time, imposed two further conditions.
84
Mr Burden said that on
the 9 February 2004 the CPP had again reviewed Dr Ghosh’s situation and noted
that a great deal of work had yet to be done.
Finally on the 2 September 2004 the CPP had decided that Dr Ghosh should
be suspended.
85
Mr Burden contended
that the picture presented was one where Dr Ghosh was repeatedly failing in a
number of core skills which cover a wide range of skills. This was despite, in Mr Burden’s view, the
support offered to him since 2002 when the conditions were first imposed, some
of which had been provided by the PCT.
Mr Burden went on to say that not only had Dr Ghosh not improved to the
satisfaction of the GMC, but there was evidence that he was not capable of
improvement.
86
By way of example of
Dr Ghosh’s failure to improve, Mr Burden referred to a letter from Dr Julia
Whiteman of the London Deanery, a matter about which we were to hear evidence
from Dr Whiteman later in the hearing.
87
Mr Burden said that it
was a decision of the GMC to suspend Dr Ghosh on the 2 September 2004 which had
caused the PCT to focus on Dr Ghosh’s situation and crystallise the issue. He said that the letter of the 4 August 2002
received from Dr Essien which was considered at the suspension hearing on the
17 August 2004 did not precipitate the PCT’s decision to consider Dr Ghosh’s
removal from the Performers List.
88
Mr Burden also said
that further evidence that the PCT was seriously considering Dr Ghosh’s
position on the Performers List was evidenced by the PCT’s consideration of his
contingent removal on the 6 May 2004.
Mr Burden pointed out that this event pre-dated the receipt of Dr
Essien’s concerns.
89
Mr Burden then gave
evidence with regard to Dr Ghosh’s progress in respect of conditions imposed
upon him by the GMC and, in particular, such matters as Dr Ghosh’s list size
and the correspondence which had taken place between Mr Burden and Dr Ghosh.
90
Mr Burden said that
the experience of Dr Spencer in dealing with Dr Ghosh in respect of the DFFP
course was an example of Dr Ghosh’s lack of core knowledge and lack of
practical skills.
91
Mr Burden then
referred to Dr Ghosh’s failure in the multiple choice question element of the
National Summative Assessment and also referred to Dr Ghosh’s interaction with
the Health Protection Agency and the visit of Ms June Hitchcock.
92
Mr Burden said that on
the 16 September 2003 Dr Nimal Premaratne, the Consultant in Communicable
Diseases Control, wrote to him expressing her concern about the situation which
she noted had patient safety ramifications and the delay by Dr Ghosh in
arranging a review visit and his failure to provide the requested data. A copy
of this letter was included in our bundle.
Mr Burden saw this incident as typical of Dr Ghosh’s inability to
acknowledge his failings and, in particular, his lack of insight into the
potential impact that those failings had on patient safety.
93
Mr Burden said that
his Statement of Case, a copy of which was included in our bundle, in his view
traces Dr Ghosh’s practice from 1997 to 2004 in terms of the serious
deficiencies identified in it and that in a period of seven years the history
of events showed no demonstrable improvement in Dr Ghosh’s practice despite what
he saw as intensive support provided to Dr Ghosh since the PCT’s decision on
the 25 January 2002. It was his view
that Dr Ghosh’s history suggested that he was not capable of providing an
adequate service to his patients and that he is unlikely to be able to do so in
the future.
94
Mr Burden gave details
of what he saw as support being provided through the London Deanery, the PCT
and other sources.
95
Under
cross-examination Mr Burden confirmed that all he had received from the GMC was
a copy of the Decision and not the details of the hearing itself.
96
Mr Burden also said
that he was aware that some PCT’s provided financial assistance to GP’s in
difficulties, but that the PCT did not, although it had a professional support
committee. He confirmed that Dr Ghosh would have been expected to provide locum
cover out of his own monies and would have to, himself, inform patients of his
absence for retraining.
97
Mr Burden said that he
had been told by Dr Ghosh that he had had difficulty in obtaining a trainer and
mentor.
98
Mr Burden accepted
that his interpretation of GMC conditions was that they required two days full
attendance by a mentor and that there was tension between the PCT’s view and
the London Deanery’s view of some of the conditions imposed by the GMC. Mrs Barducci asked Mr Burden whether he had
checked directly with the GMC as to their intention and he stated that he had
not.
99
Under cross
examination Mr Burden also gave evidence about Dr Essien and the Performance
Support Group and many other issues relating relating to education support,
training and funding.
Jane Schofield
100
Jane Schofield gave
evidence that she was the Chief Executive of the PCT and that she had a nursing
background and that she has held a senior general management role within the
National Health Service for over 17 years.
101
Ms Schofield gave
evidence about the removal hearing held on the 11 November 2004 which she
chaired.
102
Ms Schofield gave
evidence of her knowledge of the Regulations and the criteria for removal, and
of inefficiency and unsuitability cases.
She dealt with the allegations of procedural unfairness and inadequate
notice at some length. She also dealt
with her view of the allegations of bias in respect of Dr Challacombe and Ms
Nicholls making the point that no objection was taken by Dr Ghosh or his
representative at the hearing on the 11 November 2004.
103
Ms Schofield is of the
view that both Dr Challacombe and Ms Nicholls brought valuable experience to
the panel hearing on the 11 November as they were both very experienced in
dealing with clinical governance and issues relating to Dr Ghosh’s case.
104
Ms Schofield also
dealt with the issues in relation to Dr Essien’s letter and allegations and
stated that on hearing Dr Ghosh’s representative on the issue she had advised
the panel to accept that the investigation into Dr Essien’s allegations was not
complete, that there was no evidence to support the allegations and that the
panel subsequently agreed not to take account of the allegations made by Dr
Essien.
105
Ms Schofield dealt
with the issue of legal representation and referred to the same authority as
had been referred to by Mr Burden and that it was her view that the procedure
adopted by the PCT in accordance with the Department of Health Guidance was
fair.
106
Ms Schofield gave
evidence as to her views of the general nature of the case against Dr Ghosh and
said that as well as the history of the various decisions of the CPP there were
specific examples of Dr Ghosh’s failure to show any improvement and of Dr
Ghosh’s lack of core knowledge. She
referred in particular to Dr Ghosh’s results in the National Summative
Assessment multiple choice element which he had failed and the report provided
by Dr Mary Spencer. She went on to say
that her greatest concern, having heard the evidence presented to the panel on
the 11 November, was that there was no evidence of improvement in Dr Ghosh’s
practice over more than two years despite what she saw as considerable
support. She said that she felt that
these decisions went to fundamental skills such as an inability to take a
proper history, a failure to make appropriate investigations and a failure to
keep adequate notes.
107
Ms Schofield said that
it was her view that the evidence available to her at the removal hearing
indicated that Dr Ghosh was performing a service that was well below standard
and that despite considerable support from a number of organisations he had not
only failed to improve, but also had shown no capability of doing so and as
such his continued presence on the Performers List would clearly be prejudicial
to the efficiency of the services which he had to perform whilst on the
Performers List. Ms Schofield also went
on to say that she thought that Dr Ghosh was also unsuitable to be on the
Performers List and set out her reasons.
108
It appeared to be Ms
Schofield’s view that the conditions imposed by the GMC were not working and
that Dr Ghosh had failed to show any significant improvement.
109
It was also Ms
Schofield’s view that a significant amount of support had been put in place.
110
Under cross examination
Ms Schofield said that a practitioner had to have a basic level of competency
and training and that the PCT contracted with a General Practitioner on the
basis that he was competent. She went
on to say that there may well be PCTs who do assist in trainings, but that in
the case of her PCT she saw this as the function of the London Deanery. She went on to say that she took the view
that it was for the practitioner to ensure his competency, although in fact he
had received help from Dr Kheraj and Dr Whiteman.
111
Ms Schofield said that
she had not been aware that Dr Ghosh had had difficulties in finding a trainer
and also a mentor.
Dr Kheraj
112
Dr Kheraj gave
evidence that he was employed as the Chief Primary Care Medical Advisor for the
South East London Strategic Health Authority, that he qualified as a doctor in
1984, that he was also an advisor to the National Clinical Assessment Service
and an Associate of the General Medical Council. He confirmed that he was still engaged in clinical practice as a
General Practitioner. Dr Kheraj
explained that one of his roles was to support the local PCTs in the assessment
and management of poor clinical performance amongst their GP population.
113
Dr Keraj met with Dr
Ghosh at the beginning of June 2003 to discuss possible funding for his
educational rehabilitation. Following
that meeting Dr Kheraj had written to Dr Ghosh on the 9 June 2003 requesting
more information so that he would be in a better position to assist Dr Ghosh in
his rehabilitation.
114
Dr Ghosh supplied the
information requested and Dr Kheraj wrote again on the 17 June 2003 to Dr Ghosh
requiring further clarification on certain issues. Dr Kheraj was, in particular, concerned that it was not clear
from the information supplied by Dr Ghosh as to how he was going to comply with
the conditions imposed by the GMC and he asked for an action plan addressing
these issues. He also referred Dr Ghosh
to Dr Julia Whiteman at the London Deanery about constructing such an action
plan. Dr Kheraj made it clear that any
funding to be provided would be conditional on the production of a clear action
plan.
115
Dr Kheraj went on to
explain that on the 30 June 2003 he had a meeting with Dr Ghosh lasting around
three hours. During that meeting he
went through each of the conditions imposed on Dr Ghosh’s practice by the
CPP. Dr Kheraj said that this was
necessary because despite his efforts to get Dr Ghosh to focus on what he was
required to do under the conditions, Dr Ghosh had not done so. Dr Kheraj was disappointed that Dr Ghosh had
not addressed those issues in the seven weeks since the determination of the
CPP.
116
On the 1 July 2003 Dr
Kheraj wrote to Dr Ghosh setting out the issues that they had discussed at
their meeting on the 30 June and also setting out Dr Kheraj’s concerns. Dr Kheraj in his letter made it clear that,
rather than focussing on funding, it was far more important for Dr Ghosh to
focus on producing a clear action plan.
Dr Kheraj said that he had expressed the view that Dr Ghosh would need
significant support in doing this, however Dr Ghosh did not appear to
understand what was required of him by the conditions imposed by the GMC. Dr Kheraj had seen the 150 page GMC
assessment which had been sent to him by Dr Ghosh.
117
Dr Ghosh had provided
a personal development plan at the meeting on the 30 June. However, the document he provided lacked
sufficient detail and did not address issues with which Dr Ghosh was
faced. Dr Kheraj felt that it was
essentially a template document and that Dr Ghosh had not personalised it so that
it was of very little practical use. Dr
Ghosh, in Dr Kheraj’s view, did not appear to understand the purpose of the
personal development plan or how it could be a tool in addressing the
deficiencies in his practice identified by the GMC.
118
Dr Kheraj also dealt
with the subject of medical records. He
said that in his conversation with Dr Ghosh, it became clear that Dr Ghosh had
a very limited understanding about what information should be recorded in
medical notes. In those circumstances,
Dr Kheraj set out basic information about medical records in his letter of the
1 July. Dr Kheraj said that the very
basic level of advice reflected his concerns about Dr Ghosh’s level of
understanding. He took the view that Dr
Ghosh’s failure to enquire further of the GMC about the condition relating to
medical records was indicative of Dr Ghosh’s apparent inability to address his
deficiencies.
119
Dr Kheraj said that at
the meeting on the 30 June it appeared that Dr Ghosh was still not clear about
what he was required to do under the conditions imposed on him by the GMC. Furthermore, he did not appear to understand
the significance of those conditions in terms of how they related to
deficiencies in his practice. Dr Kheraj
stated that Dr Ghosh appeared to understand the GMC expectations of him, only
in generality not in specifics. As a
result Dr Ghosh did not know how to address the issues which confronted him,
but nor did he show a willingness to do so.
120
In order to encourage
Dr Ghosh to address those issues Dr Kheraj set Dr Ghosh tasks to thereby
require him to take action. Even then,
it was very difficult, so far as Dr Kheraj was concerned, to get Dr Ghosh to
comply. He gave as an example Dr
Ghosh’s failure to provide an adequate action plan. He said that in his experience this was a rare situation and that
most doctors that he sees are keen to try and address their deficiencies.
121
Due to sickness Dr
Kheraj was not able to keep the next meeting arranged with Dr Ghost in mid
August 2003. However, he wrote to Dr
Ghosh on the 26 August 2003 enclosing a table setting out the conditions to
which Dr Ghosh was subject and next to each of them a space for Dr Ghosh to set
out, first, the action he must take before his next appearance before the CPP,
secondly the support he would require and thirdly, any comments he had. Dr Kheraj asked Dr Ghosh to consider each
condition carefully and complete the action plan template before the next
meeting.
122
Dr Kheraj’s next
meeting with Dr Ghosh was on the 6 September 2003 and at that meeting Dr Ghosh
had not completed the action plan template provided by Dr Kheraj. Dr Kheraj therefore went through the
template at that meeting because in his view it was essential that Dr Ghosh had
a detailed action plan.
123
Dr Kheraj therefore
wrote to Dr Ghosh on the 16 September 2003 enclosing an amended template in
which Dr Kheraj had completed the relevant comments which Dr Ghosh was to
verify. Dr Kheraj said that he did not
expect to have to support practitioners with whom he worked in this way and
that the incident exemplified Dr Ghosh’s attitude towards the process of
addressing the conditions imposed upon his practice. It took Dr Ghosh four months to get close to providing an
adequate action plan and this only occurred when the action plan was actually
drafted for him by Dr Kheraj.
124
In addition in his
letter of the 16 September Dr Kheraj set out further issues which he had
discussed with Dr Ghosh, these included the addressing of deficiencies
identified by the CPP, preparation for the Summative Assessment and, finally,
how he should address the issue of fulfilling the conditions imposed on his
practice rather than funding.
125
By this time it was Dr
Kheraj’s view that very little progress was being made and he offered to speak
to Dr Ghosh’s medical defence organisation’s representative in an effort to
explain his concerns, but Dr Ghosh refused this offer.
126
In mid October 2003 Dr
Ghosh contacted Dr Kheraj by telephone and said that he wished to explore
funding issues. Dr Kheraj wrote to him on the 17 October 2003 explaining that
he was not in a position to provide any funding. Dr Kheraj stated explicitly in his letter that it was his view
that Dr Ghosh needed to direct his efforts towards his remedial programme
rather than the funds to support it. He
further reminded Dr Ghosh that they had agreed action points at their last
meeting, but there appeared to be no progress.
He invited Dr Ghosh to contact him to arrange another meeting, but Dr
Ghosh failed to do so and this was his last contact with Dr Ghosh.
127
Dr Kheraj said that in
his dealings with Dr Ghosh he failed to address the deficiencies in his
practice identified by the GMC and Dr Kheraj found no evidence to suggest that
Dr Ghosh was capable of changing his approach to addressing those deficiencies
despite the extensive support which had been offered by Dr Kheraj which was
beyond that which he usually offered to doctors who are referred to him.
128
Dr Kheraj explained
that the bulk of funding for training goes to the London Deanery to support
doctors who have been before the GMC panel and that Dr Julia Whiteman at that
time headed up the appropriate department in the London Deanery. Dr Kheraj said that he worked in
collaboration with Dr Whiteman. He went
on to explain that the provision of training was not his role.
129
Dr Kheraj said that it
was his recollection that he had had to do a lot of the work at his meetings
with Dr Ghosh and that Dr Ghosh seemed not to understand what was required of
him. On a number of occasions Dr Kheraj
expressed the view that it was his opinion that Dr Ghosh did not understand the
amount of work involved nor did he understand what was necessary to resolve his
position.
130
Under cross
examination Dr Kheraj said that Dr Ghosh had shown him his trainer’s report,
but he was not sure whether or not that report was signed. He also accepted that it had taken Dr Ghosh
some five months to find a trainer and even longer to find a mentor because it
had been difficult for him to do so.
131
Dr Kheraj said that
the ultimate responsibility for training and basic competency lay with the
practitioner.
132
Dr Kheraj said that he
had some £38,000 funding for the year in question. The payment for the provision of locums was specifically
excluded. He felt that retrospective
funding was unreasonable and indeed ultra vires. He had in mind that these funds could be used for specific
courses which the Deanery could not provide.
133
Dr Kheraj said that it
should have been within Dr Ghosh’s capability to deal with some of the issues
and that if he had been in Dr Ghosh’s position he would have done everything he
could to have the conditions lifted.
134
Dr Kheraj said that in
his view the MCQ should not have been a problem for a practising GP.
135
In answer to Dr Garcha
he said that he felt that the training report was not very helpful and that he
felt that he, together with Dr Whiteman, had provided significant support.
136
In answer to the Chair
Dr Kheraj also said that if Dr Ghosh had not stopped contacting him he would
have been prepared to continue to help him.
137
In our view Dr Kheraj
was a very good, clear and honest witness who demonstrated a genuine wish to
have been able to help Dr Ghosh, but was frustrated by Dr Ghosh’s approach.
Dr Julia Whiteman
138
Dr Whiteman gave
evidence that she qualified as a Doctor in 1981 and that she is now Deputy
Director of General Practice at the London Deanery. Her role includes the supervision of continuing professional
development for general practitioners in London and providing remedial
training, support and advice for Doctors following a referral either from
themselves in person, the GMC, the National Clinical Assessment Service or
PCTs.
139
Dr Whiteman stated
that in March 2003 she took over Dr Ghosh’s case from Dr Reed Bowden who
retired from the London Deanery. Dr
Ghosh had been referred to the Deanery following conditions imposed on his
practice in January 2002 and subsequently in May 2003 by the CPP. One of the conditions imposed was that Dr
Ghosh must complete and satisfactorily pass the knowledge, consulting skills
and clinical audit elements of the National Summative Assessment (“NSA”).
140
Dr Whiteman explained
that the NSA is an examination which every GP Registrar is required to pass in
order to be accredited by the Joint Committee for Post Graduate Training in
General Practice.
141
Dr Whiteman said that
the examination is a reliable base line test which ensures that all general
practitioners entering into independent general practice have the basic skills
required of a general practitioner.
142
Dr Whiteman explained
that there are four elements to the NSA which are:
·
the knowledge element
which is tested by means of a set of multiple choice questions, the majority of
which require a “true” or ”false” answer.
It is not negatively marked. The
knowledge element of the NSA is the most straightforward part of the test and
candidates will usually sit this test at an early stage of their final year of
training.
·
the consultation
skills element of the NSA is tested by means of the candidate submitting a
video showing a number of consultations which is then assessed.
·
the audit element of
the NSA requires candidates to write up one clinical audit for assessment. The general requirement for a satisfactory
audit presentation are that it must identify
the clinical issue to be addressed, show the intervention made by the practitioner
and finally assess the impact of the intervention. The write up also has to include a clinical review of the work
undertaken and background information describing the topic audited and its
relevance to primary care.
·
the final element
involves the submission of a structured report from a training practice.
However Dr Ghosh was not required to complete this element of the NSA.
143
Dr Whiteman said that
in December 2003 Dr Ghosh took the knowledge element of the NSA and that this
was following the London Deanery providing Dr Ghost with advice on the
assessment including how to access practice papers so that he could familiarise himself with the format of
the assessment and revise for it.
144
Dr Ghosh failed the
test only scoring 48.93%. Dr Ghosh’s
score was the lowest score of all those taking the test and in Dr Whiteman’s
view demonstrated a very serious lack of basic clinical knowledge. The knowledge element of the NSA is,
according to Dr Whiteman, designed to test candidate’s grasp of the clinical
knowledge that they will routinely need to recall if they are to practise
safely as independent general practitioners.
145
Dr Whiteman went on to
say that Dr Ghosh took the knowledge element test again in February 2005 and on
this occasion he scored 46% which was lower than his previous score and was
again the lowest score of all those taking the test. Dr Whiteman’s evidence was that this demonstrated a continuing,
very serious lack of basic clinical knowledge despite the substantial support
provided to Dr Ghosh in addressing the deficiencies in his clinical
practice. She stated that Dr Ghosh’s
deterioration in this key area was of very serious concern. Her view was that Dr Ghosh is not capable of
passing the NSA unless there is a radical change in his performance for the
better and that on the basis of his performance over the period of more than a
year she could see no basis for believing it would occur. Dr Whiteman said that Dr Ghosh’s performance
was, by some margin, the worst she had
seen in her time at the London Deanery.
146
Dr Whiteman also gave
evidence that Dr Ghosh had also submitted a video for the consultation skills
element of the NSA. He had failed this
element, one assessor noting that Dr Ghosh fell far short of basic competence.
147
Dr Whiteman said that
Dr Ghosh had also submitted an audit on thyroid disease. He had failed on all aspects of the audit
despite significant advice from the London Deanery on how to present his work.
148
Dr Whiteman expressed
the view that in all the circumstances of Dr Ghosh’s case, it was her opinion
that there was little further support that the London Deanery can offer Dr
Ghosh, unless he makes considerable effort himself to improve his knowledge and
skills with regard to clinical practice and continuing professional development. Dr Whiteman said that she had reflected that
view to Dr Ghosh.
149
Dr Whiteman said that
she had something like 70 clients who had been referred to her by the GMC,
NCAS, PCTs or by self referrals.
150
Dr Whiteman explained
that she assisted clients by with the use of personal development plans,
guiding them to resources, by way of a
fresh start modular course, by way of group work and one to one sessions.
151
Dr Whiteman said that
she was aware that Dr Ghosh had had problems with other doctors in his practice,
but she felt that Dr Ghosh knew what he had to do, but not how to achieve
it. She said that she understood Dr
Ghosh had contacted other people to give him support including Dr Swanick. Dr Whiteman has advised him on such matters
as textbooks and how to prepare for the Summative Assessment and that in
December 2004 he had attended a fresh start course and that he had also
attended a one week course in September 2003.
152
She felt that any GP
should have the knowledge to enable them to pass the MCQ at any time in their
career and that she had been shocked by Dr Ghosh’s results in the summative
test. Dr Whiteman went on to say that
she had told Dr Ghosh how to approach the MCQ and how to research areas of
failure and that she had mentioned this to him on various occasions.
153
With regard to the
video assessment she had shared the views of the six markers with Dr
Ghosh. It seemed clear that Dr Ghosh
did not show the appropriate skills either in consultancy or communication.
154
She said that she had the opportunity of observing Dr
Ghosh during the fresh start course in December 2004 when he carried out a
consultation with a patient who was an actor who had been briefed. Dr Whiteman said that during this
consultation Dr Ghosh had failed to pick up a lot of clues, for example, the
patient was supposedly an epileptic and yet was carrying car keys which were
put down on his desk without any reaction by Dr Ghosh.
155
Dr Whiteman agreed
that at that time some of the GMC conditions were not standard wording and that
these conditions were not negotiated with the GMC.
156
Dr Whiteman said that
she had spent a maximum of six hours with Dr Ghosh and had recommended books
and reading and had encouraged him to research the different areas. She expressed the view that Dr Ghosh was in
a very grim situation.
157
Dr Whiteman confirmed
that Dr Ghosh had found his own trainer and mentor. She also confirmed that a trainer structured report would
normally last over a year whereas the one prepared by Dr Ahmed for Dr Ghosh was
over a period of three months.
158
Dr Whiteman said that
the mentor is a guide and not there to assess the Doctor.
159
Dr Whiteman stated
that she felt that the biggest problem was Dr Ghosh’s failure to take
responsibility for his learning needs.
She went on to say that many people that go to her have difficulty in
focussing down into what they need to do, however most build up a level of
insight, some fairly quickly.
160
Dr Whiteman said that
she had offered every aspect of support and did not see that there was anything
else that she could offer.
161
Under cross
examination Dr Whiteman confirmed that Dr Ghosh would have to pass his
summative assessment in order to be able to enter the Returner Scheme. She expressed the view that she did not
believe that he would be able to pass that test.
162
Under re-examination
Dr Whiteman said that she felt that Dr Ghosh did not seem to have the capacity
to build up insight.
163
Dr Whiteman struck us
as a fair and sensible witness.
Evidence for the Appellant
Dr S K Ghosh
164
Dr Ghosh confirmed
that he was a Registered Medical Practitioner and that he qualified in 1970,
coming to the United Kingdom in 1974 and that in 1979 he commenced his
vocational GP training which was completed in l980. On qualifying as a General Practitioner he joined the Greenwich
and Bexley FHSA, as it was then, and has been a GP in South East London from
then until now, i.e. a little over 25
years. Throughout that time Dr
Ghosh has been working in the same practice in Plumstead with a variety of
assistants and principals and, at one stage, a partner. For the last six years he had a permanent
assistant Dr Rahman and, in addition, other members of staff.
165
Dr Ghosh stated that
his practice is situated in an area of significant social deprivation with a
high immigrant and ethnic population.
Dr Ghosh said that the demands on GP’s practising in his area have
always been high and at about the time his difficulties started his list size
went up to 5,500. Dr Ghosh feels that
he is a popular practitioner and puts that down, at least in part, to the fact
that he works long hours at the surgery, he has never turned a patient away and
is fortunate enough to speak a number of Indian languages and Urdu which means
that he can communicate well with local people. He is also willing to visit patients in their own homes when
required.
166
Dr Ghosh stated that
in December 1999 the then Bexley and Greenwich Health Authority wrote to the
GMC drawing their attention to a number of concerns they had about various
aspects of his performance. Dr Ghosh
agreed to undergo a full assessment.
The assessment procedure went ahead and the matter was listed for
hearing in January 2002 before the CPP.
167
Dr Ghosh said that the
CPP noted that he was a hard working and compassionate Doctor working in a
multi-cultural practice with social deprivation. However, the CPP concluded that Dr Ghosh’s performance had been
seriously deficient and directed that his registration be subjected to
conditions for a period of 15 months.
Those conditions included a requirement that he be attached for an initial
period of three months, on a full time basis, to an experienced G.P.
trainer. Further, that after that
initial three month period he be engaged for a minimum of two days a week in
approved mentor activity within his own practice which was to be for a period
of nine months. There were additional
conditions.
168
Dr Ghosh explained
that he had had considerable difficulty in finding a suitable NHS trainer and
explained the various steps he had taken to find such a person. Dr Ghosh said that he received no help
whatsoever from the PCT.
169
Eventually after
almost four months he found an appropriate trainer Dr Ahmed and he started his
training in May 2002, but by then he was already four months behind in his
timetable. Dr Ghosh pointed out that Dr
Ahmed, in a report dated 23 August 2002, had noted improvements in Dr Ghosh’s
knowledge and skills and anticipated further improvement following the
mentoring specified by the GMC.
170
Dr Ghosh then gave
evidence as to the difficulties he had with the PCT in obtaining permission to
return to work and in particular the PCT’s concerns over his list size.
171
Dr Ghosh recruited a
Dr Essien, a vocational GP who joined the practice in or around October 2002,
the aim being for him to become Dr Ghosh’s partner. This had added to the delay and Dr Ghosh was now 11 months into
the 15 month period. Dr Ghosh found
himself a suitable mentor, Dr William Cotter, who was approved by the Deanery
and twice weekly meetings were arranged with Dr Cotter at Dr Ghosh’s
surgery. This was at Dr Ghosh’s expense
and again he states that he was given no assistance by the PCT.
172
On the 7 May 2003 Dr
Ghosh’s position was reviewed by the CPP.
Given the difficulties Dr Ghosh had in recruiting a trainer and dealing
with his list size in order to be able to return to work, he had to concede at
the review hearing that despite having made some progress, the programme was
not complete. The CPP stated that they
were pleased to note that Dr Ghosh had made some progress and that he accepted
that the programme of mentoring and remedial training was not complete. Accordingly Dr Ghosh agreed to a further
period of conditional registration. The
CPP determined that for a period of nine months his registration would be
subject to broadly similar conditions as previously, but in addition he was
required to complete and pass the knowledge, consulting skills and clinical
audit elements of the NSA and to undergo an independent assessment of his
medical records.
173
During this period of
time there had been difficulties so far as Dr Ghosh was concerned in relation
to Dr Ghosh’s treatment of Matthew Chapman, a Radio Five Live investigative
journalist. This resulted in a hearing
before the GMC Conduct Committee on the 23 July 2003 when Dr Ghosh was found
guilty of serious professional misconduct as a result of which the GMC Conduct
Committee decided that a period of conditional registration would be
appropriate and imposed a condition that Dr Ghosh should not prescribe directly
or indirectly drugs of addiction or their substitutes, to patients who he knew
or suspect to be, or have been, misusing, or dependent upon, drugs of
addiction.
174
Dr Ghosh explained
that the matter of his performance came back before the CPP in February
2004. By this time he stated that he
had taken and failed the MCQ examination of the NSA. Dr Ghosh said that with the benefit of hindsight he had
inadequately prepared for the examination and did not appreciate how difficult
it was going to be to pass it. He felt
that having qualified in 1980, and like other practitioners of his generation,
found it difficult to take this type of examination and he felt that his
revision and preparation were inadequate.
He also confirmed that due to factors beyond his control the GMC assessment
of his medical records were not available to the CPP. The CPP acknowledged that the problem with the medical records
was due to delay on the part of the GMC.
The CPP determined that the period of conditional registration should
once again be extended and they decided to impose conditions on Dr Ghosh’s
registration for a further period of 12 months. Many of the conditions were according to Dr Ghosh the same, or
very similar, to those imposed previously, but he was once again required to
satisfactorily complete and pass the knowledge, consulting skills and clinical
audit elements of the NSA.
175
Dr Ghosh confirmed
that unfortunately he failed the MCQ for a second time in February 2005. He stated that he took the examination at a
time of great stress and difficulty for him and that in retrospect he was
trying to do too much at one time and should have deferred the examination to
allow himself sufficient time to prepare properly.
176
Dr Ghosh stated that
on the 29 July 2004 Dr Essien left his practice following a period of
protracted negotiation regarding him joining as a partner during which Dr Ghosh
and Dr Essien could not agree what they both regarded as a fair and appropriate
division of finances. Dr Ghosh said
that Dr Essien left on bad terms and on the 4 August 2004 sent a letter of
complaint to the PCT making various anonymised, undated allegations in relation
to Dr Ghosh’s treatment of various patients.
Dr Ghosh explained that at the hearing before a panel of the PCT which
took place on the 17 August 2004, on the basis of Dr Essien’s allegations the
PCT decided that it should suspend him from the PCT’s Performers List whilst an
investigation into Dr Essien’s complaints was undertaken.
177
The CPP resumed its
consideration of Dr Ghosh’s case on the 2 September 2004. The CPP were of the view that insufficient
progress had been made particularly in relation to the requirement that Dr
Ghosh passed the NSA and also as concerns had been raised following the
independent assessment of his medical records which had raised concerns in
respect of his record keeping. The CPP
therefore decided to suspend his registration for a period of six months and Dr
Ghosh stated that the CPP noted that they were satisfied that this was
sufficient, and necessary for the protection of the public and
proportionate. It appears that further
submissions were made as to whether the suspension should take effect
immediately and the GMC determined that this would be disproportionate. Dr Ghosh has appealed against the suspension
and that appeal has not as yet been heard.
178
Dr Ghosh said that he
had heard nothing further from the PCT with regard to the enquiry into Dr
Essien’s allegations.
179
Dr Ghosh then went on
to give evidence as to receipt of the letter from the PCT dated the 12 October
together with a bundle of accompanying documents. He said that the letter informed him that the PCT was considering
whether or not to remove him from its Performers List and contained a summary
of the allegations against him noting that full details of the allegations were
provided in the attached statement of case and supporting documentation. He telephoned his solicitor at the MDU who
told him to forward the bundle of documents in the post to her immediately
which he did. His solicitor telephoned
him on the 27 October to say that the Statement of Case setting out the
allegations referred to was not enclosed.
She wrote to the PCT requesting the Statement of Case and received it by
fax that day and forwarded it to Dr Ghosh who received it on the 28 October. Dr Ghosh says that he applied to the PCT to
have the matter adjourned, as did his solicitor. The PCT refused to delay the hearing. Dr Ghosh also complained that the letter of the 12 October made
it clear that although he could have a friend or representative present with
him, he was not permitted to be legally represented at the forthcoming
hearing..
180
The oral hearing took
place on the 11 November 2004 and Dr Ghosh received a letter dated 22 November
2004 notifying him that the PCT had decided that his name should be removed
from the Performers List.
181
Dr Ghosh said that as
a result of the suspension on the 17 August he had been unable to practise, but
he had attended various courses and other educational activities, details of
which he provided.
182
Dr Ghosh stated in his
evidence that his efforts to address the deficiencies identified by the GMC’s
performance assessment are ongoing and that he has put considerable effort into
the process. However, he complained
that he does not feel that he has received the help he had hoped to receive
from the PCT. For example, he has had
to pay the GP trainer himself as he has also had to pay his mentor Dr
Cotter. He has also had to bear the
costs of employing a locum whilst he was away from his practice for three
months’ training with Dr Ahmed.
183
Dr Ghosh is planning to
re-sit the MCQ component of the NSA in September 2005. Further, Dr Ghosh says that the QOF review
report confirmed that the practice can provide good service to patients and
recognised that the practice is a very friendly practice in a severely deprived
area. He also drew to our attention the
fact that in both 2003 and 2004 the practice was awarded a certificate of
achievement in relation to its prescribing targets.
184
Dr Ghosh accepted that
his clinical skills and knowledge base have been somewhat eroded by the high
demands of his extremely busy practice and workload and that he is working hard
to address the deficiencies identified by the GMC.
185
Dr Ghosh gave
extensive evidence about the history to his practice and the work undertaken by
him within his practice and his commitment to his practice and patients.
186
Dr Ghosh gave further
evidence about his mentoring with Dr Cotter and the amount of time that he had
had to be out of the practice, the costs involved in employing locums and the
steps he took to reduce his patient list.
187
Dr Ghosh emphasised
that he had endeavoured to study and to read, but that his overall commitments,
so far as time were concerned, were very substantial.
188
In answer to Dr Garcha
Dr Ghosh stated that he was prepared to study hard and to employ someone to
help him with the Summative Assessment of the NSA and, in particular, he
mentioned a Dr Peter Barker.
189
Dr Ghosh was then
cross examined by Mr Garnham.
190
Under
cross-examination Dr Ghosh said that there were areas where he needed to
improve and he felt that he could improve.
He accepted that his list numbers had been very high, he also accepted
that his medical records may not have been good enough, but on the other hand
he was working very hard and he had received no complaints of negligence in the
25 years he had been practising in Plumstead.
191
Dr Ghosh said that he
had conceded to the GMC that there were serious deficiencies in his practice
and said that he would apply himself to remedying this situation. He accepted that the purpose of the conditions
imposed upon him by the GMC were to improve his practice. He confirmed that he had seen a copy of the
assessment report prepared by the GMC and that he had read it and that it was
for him and his team to remedy the issues and deficiencies. He felt that it was also an obligation of
his other colleagues in the practice.
192
Dr Ghosh said that he
was doing a lot to achieve this, but he was currently not being allowed to
practise by the PCT and that he had not had any help from the PCT. Dr Ghosh felt that it was not just his job
to remedy the deficiencies. He
accepted that GP’s are independent contractors. He felt that the lack of resources was a problem and that it was for
the PCTs to train GPs. Dr Ghosh said
that he was supposed to keep up to date, but he needed the resources to do so,
for example to pay locums etc. When
pressed about this matter he accepted that it was for him as a practitioner to
keep up to date.
193
Dr Ghosh repeated that
he felt that he did not get any support from the PCT and that the PCT should
pay for his mentor Dr Cotter because he has a deficiency and it needs to be
remedied. He should be supported by the
PCT.
194
Dr Ghosh agreed that
the issue of his list size came out of the assessment completed for the GMC and
the CPP’s decision. He expressed the
view that he had had a substantial list size for many years and no complaints
had been received, but accepted that it was probably better to reduce his list
to enable him to look after patients better.
195
Dr Ghosh said that he
intended to reduce the list the way he wanted to and that he objected to the
approach adopted by the PCT. He
accepted the PCT had come to see him to discuss how the reduction in his list
size could be managed, but in his view Mr Burden had not done anything and wanted
to harass his patients.
196
We noted that Dr Ghosh
was reluctant to answer questions from Mr Garnham and was not prepared to give
direct answers and on more than one occasion he had to be reminded of the
procedures and that he was obliged to answer questions put to him.
197
Dr Ghosh said that he
was familiar with the conditions imposed in 2002 and accepted that he had been
back before the CPP in January 2003. Dr
Ghosh stated that he was trying to deal with his patient consultations in a
more elaborate way and was endeavouring to prepare better histories for
referring patients to hospital.
198
Dr Ghosh said that he
agreed to the further conditions being imposed upon him and that he did
understand his deficiencies and that he was endeavouring to remedy this by
reading all the medical journals.
199
Dr Ghosh said that he
reads in his own time and he attends educational courses and speaks to other
colleagues.
200
With regard to the
announcement by the Chairman of the CPP on the 9 February he accepted that the
committee were concerned that a great deal of work remained to address his
clinical deficiencies and he confirmed that he accepted that this was the
case. He also accepted the committee’s
comments that further improvements are required before he was able to return to
unrestricted practice.
201
Dr Ghosh said that he
had not improved because he had been too busy in his practice, but he is now
working at it, but he needs more study time and to attend more meetings. He felt that his suspension by the GMC was
mainly due to his record keeping and he had appealed against it. The basis of this appeal was that if he was
suspended he would not be able to improve his record keeping skills. He said that he had had no complaints from
patients. Dr Ghosh said that he did not
know what fundamental changes the CPP were referring to, he said that he did
not understand what changes they intended.
202
Dr Ghosh said that he
was trying to comply with all the conditions.
203
Dr Ghosh said that he
accepted that Ms June Hitchcock’s letter was potentially very serious. His vaccines were not being stored
properly. He said that he did not know
about the vaccine storage, they were travel and children’s vaccines and they
were the responsibility of the practice nurse and health visitor. Dr Ghosh said that the last practice nurse
had left six months before June Hitchcock’s review and that he had had a locum
practice nurse during that period. Dr
Ghosh suggested that the vaccines used in the surgery came from the local community
pharmacy.
204
Dr Ghosh said that he
could not remember what had happened in April 2003 and that he thought these
vaccines had probably been stored for the purposes of disposal.
205
With regard to the
steam sterilizer, Dr Ghosh said that when the issue was drawn to their
attention the Practice changed their system and had since used disposal
equipment.
206
Dr Ghosh said that
with regard to Dr Spencer he had not had a chance to read in preparation for
the tests and that he did not agree that he had a problem.
207
With regard to Dr
Kheraj he said that he wanted funding from Dr Kheraj and that was the reason he
had approached him. He said that Dr
Kheraj had asked for information which he thought he had given to him. He said that Dr Kheraj was sick and he
remembered filling something in for him, but he cannot remember the exact
details and he could not remember if he had sent him an action plan. If someone had asked him to do something
then he would have done it. He said at
the same time he was also seeing the London Deanery and posed the question as
to how much he could have been expected to cope with.
208
When asked about his
meeting with Dr Kheraj on the 30 June he said that he could not remember many
things about the meeting, for example he could not remember if he produced a
reflective diary and he could not remember what Dr Kheraj had said about
medical records. Dr Ghosh said that he
was seeing Dr Cotter and the London Deanery and he did not feel that there was
any need for him to see Dr Kheraj. He
was not terribly sure whether Dr Kheraj was trying to help him. Dr Ghosh said he could not remember if Dr
Kheraj had prepared a table for him or not.
He said he could not remember if he completed the table with Dr Kheraj
or whether Dr Kheraj completed columns four and five of the table produced by
Dr Kheraj.
209
Dr Ghosh said that he
could not remember if he had received a letter from Dr Kheraj on the 17 October
2003 nor could he remember if he had replied to that letter. He had left messages on the telephone for Dr
Kheraj. Dr Ghosh was not terribly sure
if Dr Kheraj went out of his way to support him. He said that he had received plenty of support already.
210
Dr Ghosh accepted that
he had had several hours with Dr Whiteman, he felt that with due respect to Dr
Kheraj, Dr Kheraj was not a tutor or a trainer or a course organiser. Dr Ghosh said that Dr Reed Bowden told him
to see Dr Kheraj in order to obtain finance.
211
Dr Ghosh said that in
2004 he had been terribly busy, he had to deal with the GP appraisal and doing
the QOF as well. He said that he always
tries to do what the Health Authority asks of him.
212
He said that when he
took the second MCQ test he did not have time to prepare for it. It was during his period of suspension.
213
Dr Ghosh was then
asked questions about how busy he was and his general workload, but he was
extremely evasive in dealing with these issues.
214
When asked about the
letter of the 12 October 2004 Dr Ghosh said that he did not read the letter
fully, he simply read the first few lines and then telephoned the MDU and sent
the letter and documents straight off to them and that he could not say what
was enclosed with that letter. Dr Ghosh
said that he could not say what was in the bundle either.
215
Dr Ghosh said that he
did complain about membership of the panel at the hearing on the 11 November
2004. It was “like a family” and
therefore not fair and that he had objected personally. He had objected that there had been the same
members from the two panel hearings relating to his suspension and removal. He said that he could not remember the exact
words he used.
216
Dr Ghosh was then
re-examined.
217
Dr Ghosh said that at
the hearing on the 17 August 2004 he had said words to the effect “how is it
possible” meaning that all the members of the panel worked together on the same
floor, it was not fair for them to take the decision.
218
Dr Ghosh said that
with regard to the second Summative assessment he had found himself in a
situation where he had suddenly been suspended, he had to employ a Doctor to
work full time in the practice and he had to pay for that Doctor out of his own
pocket. During that period he had to
deal with administration matters, train staff and spend time trying to get hold
of Doctors, a new receptionist and a practice nurse. Nevertheless despite the pressures on him, if he had any spare
time, then he tried to read to improve his knowledge.
219
Dr Ghosh then gave
evidence as to a private medical certificate completed by him and the
circumstances of its completion.
220
Dr Ghosh then dealt
with bundle 5 which was a set of copy documents submitted to us and referred in
detail to its comments.
221
In answer to Dr
Garcha, Dr Ghosh said that he could not remember when he completed his personal
development plan, he thought it was possibly the summer of 2004. He said that he found Dr Kheraj’s plan, or
rather the templates provided by Dr Kheraj, useful.
222
Again in answer to Dr
Garcha, he said that his normal working day when practising was 8.30 a.m. to
8.30 p.m. His consultation time was in
units of 15 minutes. He felt that the
practice team, many members of whom were long term, were a good team and had a
good working relationship.
223
Again in answer to Dr
Garcha, Dr Ghosh said that he would discuss medical issues with other Doctors
as and when necessary. Dr Ghosh said
that he did not involve his team in the preparation of the audit.
224
In answer to the
Chairman, Dr Ghosh said that he could not find a course to assist him with the
MCQ.
225
In answer to Dr Garcha
he said that he had good relationships with other GPs and had been on the LMC
as a committee member between 1983 and 1992.
He cannot remember being asked about clinical issues by other members,
but he had attended conduct hearings.
He said that the LMC had been helpful to him over his problems with the
PCT.
226
In answer to Mrs
Barducci, Dr Ghosh said that he did not accept that he was not capable of
learning. He accepted that it was his responsibility to maintain and improve
his knowledge. Mrs Barducci also
questioned Dr Ghosh about his memory and he replied to the effect that he did
not take some things seriously and did not think that he had a poor memory.
227
In answer to the
Chair, Dr Ghosh said that Dr Kheraj was not a trainer nor was he a tutor or an
organiser and that he had now attended other courses. He said that his approach to Dr Kheraj was for funding.
Testimonial Evidence
228
We heard testimonial
evidence from Mr Andrew Lakka, Mr W P
Maini, Mr Saad Kalumba, Dr T Q Banerjee, Dr S Sellappah and Dr M S Ali.
229
Following the closing
of evidence we received final written submissions on behalf of both parties,
those submissions being up to the close of evidence on the 13 May. We received the bundle of further
testimonial evidence from Dr Ghosh from colleagues and patients and a petition
from Dr Ghosh’s patients and we heard closing submissions from both Mr Garnham
and Mr Forde.
FINDINGS
230
Having considered the
numerous documents contained in five separate bundles, having heard the
evidence and oral submissions from both Counsel together with the written
submissions submitted on behalf of both parties. Having considered the testimonial evidence we have unanimously
found as follows.
231
Having heard the
testimonial witnesses we are satisfied that Dr Ghosh is a popular and
hardworking GP who is very committed to his patients.
232
Dr Ghosh accepts the
findings of the GMC and the findings by the CPP in relation to his
deficiencies.
233
This appeal is by way
of a hearing do novo and the issue to our minds is whether or not Dr Ghosh can
improve his core knowledge base and professional skills to a level where he can
become a safe and competent general practitioner.
234
Having heard evidence
at some length from Dr Ghosh we find Dr Ghosh to be both evasive, when it
suited him, and when it was convenient to him, forgetful, and we find that his
evidence was at best unreliable.
235
We prefer the evidence
of the witnesses for the PCT and, in particular, the evidence of Dr Kheraj, Dr
Spencer, Dr Whiteman and Ms Hitchcock all of whom impressed us as fair and
reliable witnesses.
236
Although Dr Ghosh
attempted to suggest otherwise, he eventually accepted that it was his responsibility
to keep his knowledge and professional skills up to date.
237
We find, having heard
the evidence of Dr Ghosh, Dr Whiteman, Dr Spencer, Dr Kheraj and Ms Hitchcock
that:
(i)
Dr Ghosh lacked basic
core knowledge and professional skills across a wide range; further those deficiencies were both
fundamental and serious in nature. By
way of example his failure to pass the National Summative Assessment tests
undertaken by him;
(ii)
despite the support
afforded to him he had significantly failed to improve his knowledge and skills
and in particular we refer to the evidence of Dr Whiteman and Dr Spencer.
(iii)
there is a significant
lack of insight by Dr Ghosh into his professional deficiencies and difficulties
and a failure by him to understand what was required of him in order to fully
comply with the conditions imposed on him by the GMC;
(iv)
that there appears to
be an inability by Dr Ghosh to retain knowledge, for example, the tests
completed for Dr Spencer in respect of the DFFP course, and
(v)
there was a lack of
genuine endeavour on the part of Dr Ghosh to retrain and learn.
238
Dr Ghosh has had a
long period of time to address his deficiencies and we did not accept his
argument that he had insufficient time and was under too much pressure.
239
We are unanimous in
our findings that there is no realistic prospect of Dr Ghosh improving his
knowledge base and professional skills to a situation where he will become a
safe and competent General Practitioner.
240
So far as Dr Ghosh’s
grounds of appeal are concerned we find that:
(i)
the PCT’s removal of
Dr Ghosh’s name from the Performers List was not premature, unreasonable or
wholly disproportionate. There can be
no doubt that the information available to the PCT gave rise to serious
concerns as to Dr Ghosh’s competence;
(ii)
that the public could
not be properly protected by the imposition of conditions;
(iii)
we do not regard the
procedures adopted and consequently the decision taken to remove Dr Ghosh’s
name from the Performers List were unfair and we are satisfied that at the
removal hearing on the 11 November 2004 no account was taken of the allegations
made by Dr Essien in his letter of the 4 August and further, we accept the
evidence that the decision to consider Dr Ghosh’s removal was triggered by the
decision of the CCP at their hearing on the 2 September 2004;
(iv)
we do not accept that
the procedure adopted by the PCT was unfair and in breach of the statutory
rules and are of the view that the PCT gave Dr Ghosh proper notice of the
allegations against him in accordance with Regulation 10(8)(a) of the Regulations.
(v)
we do not accept that
the procedures adopted by the PCT were inherently unfair and contrary to the
principles of natural justice and/or Article 6 of the Human Rights Act. The PCT complied with the guidance given as
to legal representation and Dr Ghosh was at all times represented by the
Medical Defence Union.
241
In our view Dr Ghosh
should be removed from the PCT’s Performers List on the grounds of both
efficiency and unsuitability pursuant to regulations 10(4)(a) and 10(4)(c) of
the National Health Services (Performers List) Regulations 2004.
242
For the reasons set
out above we dismiss the appeal by Dr Ghosh against the decision of the PCT on
the 11 November 2004 to remove him from its Performers List.
243
We would, however,
comment that the membership of the suspension panel which sat on the 17 August
2004 was similar to the removal panel that sat on the 11 November 2004. In particular we were concerned that Dr
Challacombe and Ms Nicholls (who have an employer/employee relationship) work
together in the same practice, sat on both panels. It seems to us that it would be appropriate in such circumstances
to endeavour to appoint alternative members to such panels and if necessary to
endeavour to appoint members with clinical governance experience from other PCTs.
NATIONAL DISQUALIFICATION
R E A S O N S
244
Mr Garnham, in his
final submissions, also argued for National Disqualification. His argument being that Dr Ghosh not only
lacked fundamental core knowledge and professional skills, but the evidence
demonstrated that there was no real prospect of the possibility of Dr Ghosh
improving to the position where he would be a competent and safe General
Practitioner and if this were correct then this would be the situation wherever
Dr Ghosh sought to practice.
245
We have given very
careful consideration to the need to impose National Disqualification. We are
conscious of the effects of such a disqualification upon Dr Ghosh in pursuing a
career within the NHS. We feel,
however, that this must be balanced with the interests of Dr Ghosh’s potential
patients and those people being served by the NHS.
246
In reaching our
decision we have taken into account our findings;
(i)
that Dr Ghosh’s core
knowledge and professional skills are seriously deficient.
(ii)
that there is no
realistic prospect of Dr Ghosh improving his knowledge base and professional
skills to a situation where he will become a safe and competent General
Practitioner, and
(iii)
we are of the view
that these issues will remain wherever Dr Ghosh wishes to practise. We have therefore concluded that National
Disqualification is necessary for the protection of patients and is
proportionate in balancing that need and the proper interests of Dr Ghosh.
247
We therefore direct
that Dr Ghosh shall be disqualified from inclusion in any medical performers
list as is described or referred to in section 49N(1) of the Act. We further direct that a copy of our
decision shall be sent to the several bodies listed in Rule 47(1) of the Rules.
248 Finally,
in accordance with Rule 42 (5) of the Rules we hereby notify that a party to
these proceedings can appeal this decision under Sec11 Tribunals &
Inquiries Act 1992 by lodging notice of appeal in the Royal Courts of Justice,
The Strand, London WC2A 2LL within 14 days from receipt of this decision
Dated this
28th day of July 2005
………………………………………
Trevor Carney
Chair to the Panel