IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY

 

CASE NO. 11065

 

BETWEEN

 

 

DR. MAHMOOD HOSSAIN

(GMC REGN. NO. 0955038)

Appellant

 

 

-and-

 

 

 

WEST YORKSHIRE CENTRAL  SERVICES AGENCY

(ACTING ON BEHALF OF EASTERN WAKEFIELD PRIMARY CARE TRUST)

Respondent

 

 

 

 

 

 

__________________

 

DECISION WITH REASONS

____________________

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Dated: ………………………………………..….

 

Chairman:……………………………………….

 

 

 

1.         This is an appeal by Dr. Mahmood Hossain from a decision of West Yorkshire Central Services Agency (acting on behalf of Eastern Wakefield Primary Care Trust (hereinafter known as the “PCT”) on 3rd February 2004 that his application to join the PCT’s Personal Medical Services (“PMS”) List be refused.

 

 

2.         At the hearing on 25th May 2004 Dr. Hossain was represented by Mr. Philip Gaisford (Counsel). The PCT were represented by Mr. Graham Horne, Director General of West Yorkshire Central Services Agency, and Mr. Neil Coulter, Administrative and Contracts Manager of the Services Agency.

 

 

3.         THE BACKGROUND

 

            On 22nd December 2003 Dr. Hossain completed an Application Form and a Declaration for the purposes of applying to join the PCT’s PMS Service List.

 

            On page 3 of the Application Form Dr. Hossain was asked:

 

“Have you ever been removed…. or had an application for inclusion either refused or conditionally included in a PCT list or equivalent list?”

 

            Dr. Hossain replied “No”

 

            Question 2(a) and (b) of the Declaration was as follows:

 

“Have you ever been the subject of an investigation where the finding was adverse:

 

(a)        by any licensing, regulatory or other body into your professional conduct or performance anywhere in the world?

 

(b)        by any current or former employer into your professional conduct or performance anywhere in the world?”

 

            Dr. Hossain replied “Yes” to both questions.

 

            Question 5(a) was as follows:

 

“Have you ever been refused admissions or conditionally included in, removed…. or are you currently suspended from any PCT (or equivalent body in Wales, N.I. and Scotland) list?”

 

            Dr. Hossain replied “No”.

           

The final page of the Declaration allowed Dr. Hossain to provide details in the event that he had answered “yes” to any of the questions.

 

Dr. Hossain confirmed that:

 

            (i)         he had been referred to the GMC in October 2000;

 

            (ii)        he had been found guilty of serious professional misconduct;

 

            (iii)       he had appealed successfully to the Privy Council;

 

(iv)       he had been reinstated to the Medical List by the GMC with conditions, but in November 2003 those restrictions had been removed.

 

 

4.         On 7th January 2004 the PCT wrote to the FHSAA requesting any information known about Dr. Hossain. A reply was received on 23rd January 2004 confirming that:

 

(i)         Dr. Hossain had been refused inclusion to the Southwark Primary Care Trust with effect from 8th November 2002;

 

(ii)        Dr. Hossain had been found to be in breach of his terms of service in September 2001 and had received a “warning” and a £5,000 withholding.

 

 

5.         On 22nd January 2004 (the day before the reply was received) the PCT’s Supplementary List Committee (“the Committee”) met to consider Dr. Hossain’s application. The Committee had the benefit of considering a number of documents, including a report of the General Medical Council’s Professional Conduct Committee Meeting held on 21st and 26th November 2003. That document confirmed that Dr. Hossain’s registration was subject to two conditions until November 2004 (when his case would be further considered):

 

(i)         Not to work as a principal or partner within General Medical Practice nor in a deputising service, nor as a locum, and

 

(ii)        to notify any employer or prospective employer of the conditions of his registration before commencing that employment.

 

The Committee found that Dr. Hossain should be admitted to its PMS Service List subject to the two conditions already imposed by the GMC.

 

 

6.         Subsequently, the information from the FHSAA was received and a further meeting of the Committee was convened on 2nd February 2004.

 

            The Committee concluded that Dr. Hossain’s failure to disclose those matters referred to in paragraph 4(i) and (ii) of this Decision amounted to a fraudulent application and therefore his application to join its PMS Service List should be rejected.

 

            Dr. Hossain received confirmation of the Committee’s decision by way of a letter from Mr. Graham Horne dated 3rd  February 2004. On 26th February 2004 Dr. Hossain’s solicitors wrote to the FHSAA indicating their wish to appeal against the decision of the PCT.

 

7.         THE EVIDENCE

 

            From the papers considered by the Panel, it was clear that:

 

(i)         Dr. Hossain had applied for inclusion to the Southwark PCT’s Supplementary List on or about 31st March 2002;

 

(ii)        Following his successful appeal from the Privy Council, the GMC Professional Conduct Committee imposed five conditions to his registration in November 2001 for a period of two years. These were as follows:

 

“(1)     You shall not work as a principal or partner within General Medical Practice nor in a deputising service, nor as a locum;

 

(2)        You shall restrict your practice to supervised posts agreed by a Regional Director of Postgraduate General Practice Education or, in the case of hospital posts, the Postgraduate Dean.

 

(3)        You shall seek and follow the advice of a Regional Director of Postgraduate General Practice Education about your training needs to meet the requirements set out in ‘Good Medical Practice’ and remedy the following deficiencies in your practice identified by the Committee in November 2000:

 

            (i)         failure to visit patients when necessary;

            (ii)        failure to provide medical treatment when necessary;

(iii)       failure to keep adequate medical records of consultations and prescriptions.

 

(4)        You shall arrange for a report from the Regional Director of Postgraduate General Practice Education to be sent to the Committee before the end of the period of conditional registration;

 

(5)        You shall notify any employer or prospective employer of the conditions on your registration before commencing that employment”

 

            (iii)       As at 22nd April 2002 Southwark PCT were still awaiting Dr. Hossain’s:

 

                        (a)        Birth Certificate;

                        (b)        JCGCPT Certificate;

                        (c)        GMC Annual Registration Certificate;

                        (d)        Passport;

           

In addition, Dr. Hossain had failed to complete Part 5 (Criminal Convictions and other Investigations) of the application.

 

The above information was never received by the PCT.

 

(iv)       Dr. Hossain had written to Southwark PCT on 17th June 2002 and informed them that his registration was subject to three conditions imposed by the GMC.

 

(v)        On 17th July 2002 the PCT (then known as South East London NHS Health Authority) wrote to Dr. Hossain and informed him that his application had not been accepted because the conditions imposed by the GMC’s Professional Conduct Committee prohibited him from working as a principal or partner with a General Medical Practice, or as a locum or in a deputising service. Rather surprisingly, the Health Authority did not inform Dr. Hossain of his right to appeal their decision under (then) Regulation 15 of The National Health Service (General Medical Services) (Supplementary List) Regulations 2001.  The said Regulations came into force on the 14th December 2001 and were subsequently amended by The National Health Service (Personal Medical Services) (Service List) and the (General Medical Services) (Supplementary  List) and General Medical Services Amendment Regulations 2003.  The said Regulations came into force on the 3rd November 2003. Both the Regulations 2001 and the Amendment Regulations 2003 were revoked on 1st April 2004 by The National Health Service (Performers Lists) Regulations 2004. More will be said about these Regulations below, but it is fair to say it has always been a mandatory requirement of the PCT to inform a performer of his right to an appeal in the event that it has decided not to include him on its list.

 

 

8.         Dr. Hossain informed the Panel that:

 

(i)         He  had aborted his application by 22nd April 2002. This was the reason why he had not sent the documents listed in paragraph 7(iii) (a) – (d). He knew, by then,  that his application could not be accepted;

 

(ii)        His application form to join the PCT’s (PMS) List was “slapdash”;

 

(iii)       He had given a shorthand version of the GMC decision;

 

(iv)       He now knew his mistakes;

 

(v)        There was no intent to deceive;

 

(vi)       He would like to apologise;

 

(vii)      The warning and £5,000 withholding was a matter referred to at the original GMC Professional Conduct Committee Hearing.

 

When cross-examined by Mr. Horne, Dr. Hossain admitted that he did not formally notify Southwark PCT of his decision to withdraw or about his application.

 

 

9.         Mr. Coulter and Mr. Horne gave evidence. Mr. Coulter confirmed that he informed Dr. Hossain of the communications from the FHSAA by telephone on 23rd January 2004. Mr. Coulter recalled that Dr. Hossain was surprised and could not remember being rejected by Southwark PCT. Dr. Hossain immediately sent a letter to Mr. Coulter dated 23rd January 2004 confirming the telephone conversation that he had just had. The letter sought to provide an explanation for his actions with an apology for any inconvenience he may have caused. This letter was subsequently placed before the PCT’s PMS List Committee when reaching their decision on 2nd February 2004.

 

 

10.       THE LAW

 

            Schedule 2 – The National Health Service (Performers Lists) Regulations 2004 came into force on 1st April 2004, revoking the two Regulations mentioned in paragraph 7 of this Decision.

 

            No issues were raised by the parties with regard  to transitional provisions, but the Panel have considered the following provisions in respect of the 2004 Regulations: Regulations 4, 6(1)-(6) inclusive, 15, Schedule 1 and 2.

 

 

11.       THE DECISION OF THE PANEL

 

            The importance of carefully completing an Application Form and Declaration by a medical practitioner cannot be overstated. In the recent decision of Kataria –v- Essex Strategic Health Authority [2004] EWHC 641 (Admin) Mr. Justice Stanley Burnton said:

 

“No one should sign any document that will be relied upon that he does not believe to be true or which he believes to be false or misleading and a doctor should not require a ‘Good Medical Practice’ to appreciate this”.

 

The issue that the Panel have to consider is whether, at the time of completing his application form and Declaration, Dr. Hossain intended to deceive the PCT. Or, to put it in a slightly different way: was his application fraudulent?

 

There is no doubt that Dr. Hossain applied for inclusion on the Southwark PCT’s Supplemental List. What is somewhat unclear is whether Dr. Hossain genuinely believed that his application had been rejected. The letter dated 17th July  2002 from the South East London NHS Health Authority (“the Health Authority”) refers to his application not being “accepted”. More importantly, the letter failed to inform Dr.  Hossain of his right to appeal against the refusal under the “old” Regulation 15 of the National Health Service (General Medical Services) (Supplemental List) Regulations 2001. The requirement to notify Dr. Hossain was a mandatory one, not only under Regulation 6(6) of the “old” Rules, but also under the 2004 Regulations (see Regulation 6(6)(b)).

 

Whilst there is no doubt that Southwark PCT believed they had “refused” the application (see their letter dated 27th November 2002 to the FHSAA), their failure to inform Dr. Hossain of his right to appeal does cause doubts as to whether he believed that his application had been rejected or merely not entertained because of the conditions attached to his registration.

 

In respect of the failure to disclose the “warning” and a £5,000 withholding, it is quite clear that the issue:

 

(i)         was raised and considered by the GMC Professional Conduct Committee during the five day hearing in November 2000 (see D5 23);

 

(ii)        was considered (in the main) by the Privy Council (see paragraph 14 of the judgment).

 

In his closing submissions Mr. Gaisford remarked that Dr. Hossain:

 

(a)        was the author of his own misfortune;

 

(b)        made an unnecessary application to join Southwark PCT’s Supplementary List;

 

(c)        had “flagged up” the adverse findings of the GMC;

 

(d)        had declared the substance of the matters, but should have “spelt out” the details.

 

            Mr. Gaisford also invited the Panel to consider:

 

            (i)         Dr. Hossain’s Curriculum Vitae and

 

(ii)        a letter from Dr. Kamal (a General Practitioner and a Clinical Tutor at Leeds Medical School) who is still prepared to employ Dr. Hossain and provide appropriate supervision.

 

Having considered all the evidence presented to us, it is the unanimous decision of the Panel that Dr. Hossain’s appeal should be allowed. The Panel concur with the submissions of Mr. Gaisford and take the view that Dr. Hossain’s application to join Eastern Wakefield PCT PMS List was not a fraudulent one.

 

The Appeal is by way of re-determination. Under Regulation 15(3) of the 2004 Regulations: “the FHSAA may make any decision which the PCT could have made”. It is the decision of the Panel that Dr. Hossain be permitted forthwith to join the PCT’s Performers List subject to the two conditions already imposed upon him by the GMC’s Professional Conduct Committee (as set out in paragraphs 5 of this Decision).

 

The Panel would also like to make observations which we hope will be considered by the PCT:

 

(i)         It is not good practice for the PCT staff to be contacting practitioners by telephone to discuss with them matters which can have far reaching implications. Following receipt of the information from the FHSAA on 23rd January 2004, the PCT should have put their views in writing to Dr. Hossain and invited him to seek advice from his Medical Defence Union before providing an explanation. Dr. Hossain should have been informed that his written explanation would be considered by the PMS List Committee and therefore was an important document. If there are telephone conversations, then the PCT should keep an attendance/contemporaneous note of the conversation and be prepared to disclose the documents during the course of proceedings;

 

(ii)        Where the GMC have been significantly involved with a Practitioner (as in this case), it would be good practice for the PCT to ensure that as much of the documentation has been considered, as opposed to relying upon a synopsis. It was noticeable to the Panel that one of the documents relied upon by the PMS List Committee was a Report of the GMS Professional Conduct Committee Meeting held on 21st and 26th November 2003. The Committee did not appear to have read:

 

(a)        the papers in connection with the original 5-day hearing in November 2000, which would have confirmed the issue of the warning and £5,000 withholding had been raised and considered by the GMC; and

 

(b)        the judgment of the Privy Council delivered on the 2nd October 2001.

 

 

12.       Any party to these proceedings has the right to appeal this decision and, by virtue of S.11 Tribunals and Inquiries Act 1992, a Notice of Appeal must be filed in the District Registry at an Appeal Centre on the Circuit in which the FHSAA is situated within 28 days.

 

 

 

ROBIN CHAUDHURI

Chairman

 

30th May 2004