Siobhan Goodrich Chair
Dr Howard Freeman Professional
member
Mr Allan Lloyd Member
BETWEEN:
DR ANTHONY
DAVID CHYC Appellant
and
COLCHESTER PRIMARY
CARE TRUST Respondent
DECISION ON NATIONAL DISQUALIFICATION
Background
1, Following a hearing on 15th July 2003 the panel appointed by the Colchester Primary Care Trust
(“the PCT panel”) concluded that the continued inclusion of the Appellant upon their list of medical practitioners would be prejudicial to the efficiency of the general medical services, which those on the list undertake to provide, under Section 49F(2) of the National Service Act 1977 (“the Act”) as amended by the Health and Social Care Act 2001 and, further, that he was unsuitable to be included in the list under Section 49F(4) of the Act. The Panel decided to remove the Dr Chyc’s name from the list.
2. In a letter dated 21st July 2003 the PCT informed Dr Chyc of the basis of their decision and, further “You are advised that you have the right to appeal against the Trust’s decision to remove your name from its Medical List and that this appeal should be made in writing to the FHSAA….within 28 days of the receipt of this letter confirming the Trust’s decision….If you appeal, your suspension will continue until the determination of any appeal to the FHSAA is known; or at the end of 28 days from now if no such appeal is made, when your name will be removed from the Medical List.”
3. By notice of appeal dated 4th August 2003 [1/246] Dr Chyc appealed against the decision of the Respondent PCT (“the PCT panel”) dated 21st July 2003 to remove his name from the List. We (“the FHSAA panel”) conducted a lengthy hearing on various dates between April and September 2004.
4. At the conclusion of the oral hearing
of the Appeal, following the request
of Counsel for the Appellant, we did not hear submissions on the issue of
national disqualification pending our decision on the facts in relation to the
unsuitability allegations and a decision on disposal re inefficiency.
5. Our decision was provided to the
parties on 16th December 2004. The full background and the findings
of fact made are set out therein. In brief, in relation to unsuitability, we
found that the Appellant assaulted Ms L, Ms D and Ms K. In relation to
inefficiency we found that between
2000 and his suspension in 2003, the Appellant failed on numerous occasions to
write referral letters promptly or at all. Throughout most of the relevant
period there was a substantial backlog of outstanding referrals. At some stages
the number of letters outstanding was 80 to 100. Some letters that should have
been written within a few days of the patient visit were written very many
months later. Some letters were never written at all.
6. In the light of the findings we made, we came to the clear and unanimous view that the direction that we should make was that Dr. Chyc’s name should be removed from the medical list maintained by the Respondent on the grounds of his inefficiency and unsuitability under Section 49F(1), (2) and (4) of the Act.
7. The panel subsequently received brief written submissions concerning the imposition of a national disqualification from the Appellant dated 21st December 2004. The Respondent provided submissions dated 5th January 2005.
8. Mr Garnham QC, for the Appellant, contended that the panel has no power to make such an order. In essence he submitted that the power to do so under section 49N of the National Health Service Act 1977, as amended, arises in 2 instances.
First: under section 49N(1), when it is the FHSAA who orders removal of a practitioner from a list. The Appellant contended that this panel had not ordered removal but had simply dismissed his appeal.
Second: under section 49N(4) (sic) when the PCT applies for a national disqualification order after they have removed a practitioner. The Appellant contended that the power under section 49N(1) could only be exercised if the PCT have applied for such an order within three months of the decision to remove. Since the decision taken of the PCT panel was made on 21st July 2003 the time limit for such an application therefore expired on 20th October 2003.
9. In his submissions Mr Forde, for the Respondent, relied upon the fact that the appeal was heard by way of redetermination pursuant to section 49M(3) and that we had made the order for removal under the powers conferred by section 49M(4) of the Act. He submitted that the natural corollary of the unsuccessful appeal was the order for removal made by the FHSAA panel and that that the construction of the Act relied upon by the Appellant was wholly erroneous. In his submission an application by the PCT was unnecessary: section 49N(1) conferred a freestanding power that enabled us to order national disqualification.
10. Whilst the parties were content that the issue of the imposition of an order for national disqualification should be considered without an oral hearing we decided that this was undesirable given the nature of the dispute. Prior to the hearing date being set the Appellant made further observations in a letter dated 18th January 2005 in response to the Respondent’s submissions to which the Respondent replied on 2nd February 2005.
11. At the hearing on 24th February 2005 Mr Garnham maintained his primary contention that the panel had no power to order national disqualification itself under section 49N(1). He drew to our attention an alternative argument that might confer such a power “should the PCT decide to make an application.” Because of the absence of Mr. Forde for most of the hearing it was agreed that the oral submissions made by Mr Garnham and any responses necessary should be furnished by way of further written submissions. The Appellant and Respondent provided these on 1st and 3rd March respectively. No further submissions have been received.
The
Statutory Framework
12. Given the matter in issue it is appropriate to set out the relevant statutory provisions of the Act as amended.
(1) If it appears to a Primary Care Trust….that any of the conditions set out in subsections (2) to (4) is established in relation to a person included in any of the following prepared by them
(a)
a list of
medical practitioners undertaking to provide general medical services…
…they may decide to remove him from that list…..
(2) The first condition is that the continued inclusion of the person concerned in the list would be prejudicial to the efficiency of the services which those included in the list undertake to provide (and such a case is referred to in this group of sections as an “efficiency case”)….
(4) The third condition is that the person concerned is unsuitable to be included in the list (and such a case is referred to in this group of sections as an “unsuitability case”)….
(1) In an efficiency case… the Primary Care Trust…. may, instead of deciding to remove a
practitioner from their list, decide to remove him contingently.
(2) If they so decide, they must impose such conditions as they may decide on his inclusion in the list with a view to-
(a) removing any prejudice to the efficiency of the services in question (in an efficiency case)…
(3) If the Primary Care Trust…. determine that the practitioner has failed to comply with a condition, they may decide to…
(b) remove him from their list.
(1) This section applies if the Primary Care Trust…. decide to remove a practitioner from a list under section 49F.
(2) In such a case they may also decide to suspend the practitioner from the list pending any appeal by him, if they are satisfied that it is necessary to do so for the protection of members of the public or is otherwise in the public interest.
(3) If they do suspend the practitioner under this section, the suspension has effect from the date when the Primary Care Trust…. gave him notice of the suspension.
(4) The suspension has effect until its revocation under subsection (5) or (6) or, if later, until the expiry of the period of 28 days referred to in section 49M(1) below, or, if the practitioner appeals under section 49M, until the FHSAA has disposed of the appeal…
(6) If the practitioner appeals under section 49M against the decision of the Primary Care Trust… to remove him from the list, the FHSAA may also revoke a suspension imposed on him under this section.
49K Effect of suspension
While a practitioner is suspended (whether under section 49I or under 49J above) he is to be treated as not being included in the list from which he has been suspended even though his name appears in it.
(1) The Primary Care Trust…. may and (except in prescribed cases) if requested in writing to do so by the practitioner must, review a contingent removal or a suspension (other than a contingent removal or a suspension imposed by, or a suspension continuing pursuant to, an order of the FHSAA, or a suspension imposed under section 49J above)….
(3) On such a review, the Primary Care Trust…. may-
(a) confirm the contingent removal or the suspension,
(b) in the case of a suspension, terminate it,
(c) in the case of a contingent removal, vary the conditions, impose different conditions, revoke the contingent removal, or remove the practitioner from the list.
(1) A practitioner may appeal to the FHSAA against a decision of a Primary Care Trust…. mentioned in subsection (2) by giving notice in writing to the FHSAA within a period of 28 days beginning with the date on which the Primary Care Trust…. gave him notice of the decision.
(2) The Primary Care Trust…. decisions in question are-
(a)
to remove the practitioner from a list (under section 49F or
49G(3) or under subsection (5)(b) of this section),
(b)
to remove him contingently (under section 49G),
(c)
to impose any particular condition under section 49G, or to vary
any condition or to impose any different condition under that section,
(d)
to vary his terms of service (under section 49G(4)),
(e) any decision on a review of a contingent removal under section 49L.
(3) The appeal shall be by way of redetermination of the decision of the Primary Care Trust.
(4) On an appeal, the FHSAA may make any decision which the Primary Care Trust…. could have made.
(5) If the FHSAA decides to remove the practitioner contingently-
(a) the Primary Care Trust… and the
practitioner may each apply to the FHSAA for the conditions imposed on the
practitioner to be varied, for different conditions to be imposed, or for the
contingent removal to be revoked, and
(b) the Primary Care Trust…. may remove him from their list if they determine that he has failed to comply with a condition.
(6) The Primary Care Trust…. shall not remove a person from a list, or impose contingent removal-
(a) until
the expiry of the period of 28 days referred to in subsection (1), or
(b) if the practitioner appeals within that period, until the FHSAA has disposed of the appeal.
49N National disqualification
(1) If the FHSAA removes the practitioner from a list, it may also decide to disqualify him from inclusion in-
(a) all
lists referred to in sections 49F(1) prepared by all Primary Care Trusts….
(b) all
supplementary lists prepared by all Primary Care Trusts…. and,
[(bb) all
lists under section 28X above, or any list corresponding to such a list, and
(c) all services lists prepared by all Primary Care Trusts…. Under section 28DA above or under section 8ZA of the National Health Service (Primary Care Act 1997 (c46), or any list corresponding to a services list [all lists under section 28X above, or any list corresponding to a list under that section] prepared by [any Primary Care Trust]…. by virtue of regulations made under section 41 of the Health and Social Care Act 2001,
or only from inclusion in one or more descriptions of such lists prepared by [all Primary Care Trusts]…., the description being specified by the FHSAA in its decision.
(2) A decision by the FHSAA to do what is mentioned in subsection (1) referred to in this section as the imposition of a national disqualification.
(3) The FHSAA may also impose a national disqualification on a practitioner if it dismisses an appeal by him against the refusal by a Primary Care Trust…. to include him in such a list (or, in the case of a medical list, to nominate or approve him for inclusion in it).
(4) The Primary Care Trust…. may apply to the FHSAA for a national disqualification to be imposed on a person after they have-
(a) removed him from a list of theirs of any of the kinds referred to in subsection (1)(a) to (c), or
(b) refused to include him in such a list (or, in the case of a medical list, to nominate or approve him for inclusion in it)
(5) Any such application must be made before the end of the period of three months beginning with the date of the removal or the refusal.
13. The essence of Mr Garnham primary contention is that the FHSAA panel has no power to impose national disqualification because it did not remove the Appellant from the PCT list. He submits that irrespective of how our decision was expressed the true effect of the unsuccessful appeal was that the FHSAA panel simply dismissed the appeal thereby allowing the decision of the PCT dated 21st July 2003 to take effect. He contends that the effective order is that of the PCT because it became live and effective when our decision was handed down. He relies, in particular, on the effect of the suspension of the Appellant under section 49J of the Act.
He drew our attention to an alternative argument that might entitle us to impose a national disqualification upon the Appellant under section 49N(4).
14. The Respondent submitted that the Appellant's contentions were fundamentally flawed and erroneous. He relied upon the structure and detailed provisions of the Act. So far as the alternative argument was concerned he indicated that this could be accepted or rejected by us although he submitted that to agree with the submission that there was no independent power vested in the FHSAA to impose national disqualification under section 49N(1) would be wrong.
We examine the rival contentions below.
The Orders made
15. As is evident from our decision we approached the appeal by way of redetermination pursuant to section 43M(3) and, in the light our findings, we made separate orders for removal under section 49F(1), (2) and (4) on the grounds of inefficiency and unsuitability (see paragraphs 126 and186 of the decision). In his final submissions to us at the appeal hearing the Appellant submitted that the PCT decision, proceeding as it had on the basis of evidence that was received in breach of the Appellant’s right to confidentiality and other evidence that was inadmissible “was flawed and cannot stand”. The Appellant’s clearly stated position was that we were entitled to determine the complaints still pursued and “to decide what, if any, sanction was justified.”
16. The Appellant does not resile from that position. Mr Garnham submitted in the context of the national disqualification hearing that section 49M(3) simply dictates the intensity of the review which the panel undertakes in that it requires the panel to decide the appeal by standing in the shoes of the PCT “as if to take the decision afresh.” In so far as he submitted that section 49M(3) alone serves to distinguish between this class of appeal from those which amount to a review of the rationality of the decision taken, we disagree. It is, in our view, mistaken to construe section 49M(3) without regard to section 49M(4), which provides that “on appeal the FHSAA may make any decision which the PCT could have made.” It was indeed in exercise of this power that we made specific orders under section 49F(1), (2) and (4) for the removal of the Appellant’s name from the list maintained by the Respondent.
The
true effect of the Orders made
17. Mr Garnham submits that the critical issue that we now have to decide is the effect of the unsuccessful appeal. Is it, as the Appellant contends, that we dismissed the appeal so that the original decision of the PCT panel takes effect or is it, as the Respondent contends, that we ordered removal of the Appellant’s name from the list? We examine the submissions by the Appellant concerning construction below.
The
relevance of the Appellant’s suspension under Section49J
18. Mr Garnham contends that it is necessary to look to section 49J which governs suspension pending appeal in order to determine the true effect or consequences of an unsuccessful appeal. We consider that section 49J(4) simply provides that a suspension pending appeal has effect until the expiry of the 28 days allowed for the practitioner to appeal or until the FHSAA has disposed of any appeal. It is the statutory mechanism by which the public and/or the public interest can be protected pending appeal in appropriate cases. We see nothing in section 49J that supports the proposition advanced that upon resolution of the appeal it was the decision of the PCT “then became live and effective.” In our view the suspension referred to in Section 49J relates to the ability of the Appellant to practice as a general practitioner in the NHS and not any suspension of the PCT’s decision to remove him from their list. In any event, for the reasons set out above, we do not consider that construction of section 49J can displace the clear effect of section 49M (3) and (4) which entitled us to make our orders for removal.
19. We consider that if Parliament had intended that the effect of an unsuccessful appeal when simply to leave in place the original decision for it to be “reactivated” following an unsuccessful appeal, it would have confined the powers of a FHSAA panel to the dismissal of the appeal and/or confirmation of the PCT decision. In our view the Act is quite clear: the effect of section 49M (3) and (4) imposes an obligation on the FHSAA to conduct the appeal by way of redetermination with power to make any decision which the PCT could have made under section 49F. At one stage the Appellant suggested that the phrase “could have made” supported his submission that the effective date of the decision was 21st July 2003. We see no merit in that point.
20. It is worth emphasizing that the exercise of power granted under section 49M (3) and (4) leaves a wide range of potential decisions. A FHSAA panel could form a somewhat different view of all the relevant circumstances in the light of oral evidence given before it. It may find some facts proven and others not. It will reach its own collective judgement as to the seriousness of the conduct or inefficiency alleged. It may weight some factors in a different way to the PCT panel. It may form an entirely different impression to the PCT panel given that a appeal hearing usually involves live evidence whilst PCT panels usually make their decisions without the benefit of full forensic analysis, not least in cross examination. It should be borne in mind that the material before a FHSAA panel could, in any given case, include a demonstrable change in skills, knowledge, attitude and insight on the part of the practitioner by the time the appeal is heard.
21. At one end of the spectrum a FHSAA panel redetermining an appeal against a decision to remove may be satisfied that a condition under section 49F is met but it may decide that contingent removal is a reasonable and proportionate disposal in all of the circumstances. In the middle of the spectrum a FHSAA panel could decide to remove a practitioner contingently but with conditions more or less stringent from those considered by the PCT panel to have been appropriate. At the other end of the spectrum, on an appeal against the decision of the PCT panel to impose an order for the contingent removal of a practitioner’s name, a FHSAA panel could decide that immediate removal is required for the protection of the public.
22. The fact that there may be a range of decisions appropriate as a result of redetermination on appeal in any given case does not, of course, sit happily with the simple phrase “appeal dismissed”. Parliament plainly intended that the FHSAA panel should reconsider the case afresh. It was, no doubt, for this reason that it was considered appropriate that a FHSAA panel, if it found the necessary condition established, was given the power to make any order concerning disposal that was open to the body from which the appeal was brought. In our view the phrase “could have made” in section 49M(4) has to be viewed in this overall context.
23. Whilst we agree that the effect of section 49J is such that the suspension of the Appellant pending appeal is brought to an end at the resolution of the appeal, we do not consider this section has any bearing upon the legal effect of any decision made pursuant to section 49M (3) and (4). In our view it could not possibly do so not least because in some cases suspension pending appeal does not occur.
24. In our view there are numerous other indicators as to Parliament’s intentions in enacting section 49N(1) that are much more in point. Mr. Forde submits that it is simply not the case that the PCT removed the Appellant’s name from the list on 21st July 2003. We agree that it is clear from the content of the letter written to Dr. Chyc on that date that the PCT made a decision to remove and we so find. Mr Forde submitted that there is a distinction between a decision to remove and an actual removal and relied upon the fact that the Act refers to a PCT decision to remove on a number of occasions (see sections 49F(1), 49G(1), 49J(1), and 49M(2)(a). We agree.
25. Further, he referred us to section 49M(6) which expressly prevents a PCT from acting upon its decision to remove a practitioner from the list or impose a contingent removal until the expiry of 28 days allowed for the practitioner to appeal or until the appeal is disposed of by the FHSAA. The specific provisions regarding suspension pending appeal under section 49J enable the PCT to suspend a practitioner in certain circumstances until the determination of the appeal. Pending an appeal, section 49K expressly provides that a suspended practitioner is to be treated “as not being included in the list from which he has been suspended even though his name appears on it.” Regulations made pursuant to section 49I(9) also provide that the suspended practitioner is entitled to receive payment pending appeal.
26. It seems to us that the effect of section 49J is akin to a stay which operates to the benefit of the practitioner in that he receives payment pending his appeal (as occurred in this case) and to the benefit of the public in that both the interests of patients who might otherwise be placed at risk and the interests of the NHS are protected pending a full determination of the merits of the appeal. It seems to us that a decision to remove amounts to an intention to act by the PCT. The PCT cannot, however, act upon their intention until it is clear either that the Practitioner accepts the decision or he appeals. It is only on appeal that any orders are made.
27. We note also that section 49L(3) enables the PCT to review a contingent removal or a suspension “other than a contingent removal or a suspension imposed by, or a suspension continuing pursuant to an order of the FHSAA or a suspension imposed under section 49J above.”
On such a review the PCT may
confirm the contingent removal or suspension, terminate a suspension or “in the
case of a contingent removal, vary the conditions, impose different conditions,
revoke the contingent removal or remove the practitioner from the list.” That
removal, is, however, subject to a right of appeal (see section 49M(2)(a)).
The Statutory Framework
28. In our view the overall statutory framework is clear and consistent. If a PCT panel decide to remove a practitioner’s name from the List that decision cannot be put into action until after the 28 days allowed for the practitioner to lodge an appeal have lapsed. If an appeal is not lodged the PCT can act upon their remove the Practitioner’s name from the list. Pending an appeal, the PCT may (or may not) suspend the practitioner in prescribed circumstances. If an appeal is lodged the PCT has no power to review the decision to remove or remove on a contingent basis or to review its suspension of the practitioner pending appeal. Those decisions can only be made by the FHSAA seized of the appeal (see section 49L(1) and 49J(6)).
29. In our view the effect of these provisions is that once an appeal is lodged the FHSAA exercises a protective jurisdiction that goes further than the simple determination of an appeal between the parties in the limited terms contended for by the Appellant. The statutory provisions are reinforced by Rule 44(1) of the Family Health Services Appeal Authority (Procedure) Rules 2001 (“ the Rules”) by which a panel is granted discretion to refuse to allow dismissal or withdrawal of an appeal or application. It can also refuse to sanction any compromise reached between the parties. It seems to us that Parliament clearly contemplated that circumstances might arise when a FHSAA panel refuses to permit an appeal to be withdrawn because the public interest and/or the interests of justice would not be served by allowing the Appeal to be compromised on the basis agreed privately between the parties.
The Construction of Section
49(1)
30. In our view the meaning of section 49N(1) is clear. It provides that “If The FHSAA removes the practitioner from a list, it may also disqualify him from inclusion in….all…or any… lists…” (our emphasis). It is clear to us that the reference to “removes” in this section and “removed” in section 49N (4) contrasts with the repeated references to the phase “decision to remove” repeatedly used in the Act. The word “also” plainly contemplates that the FHSAA panel are empowered to make a separate decision under section 49N(1) if it has made an order for removal. The physical act of removing a name, of course, is performed by the PCT as a consequence of the order of the PCT panel in any given case.
31. In our view Mr. Garnham’s primary contention that subsection (1) does not refer to an order for removal made by the FHSAA but relates back to the earlier PCT decision is not supported by authority and is inconsistent with the statutory framework. It also begs the question as to when the power granted under subsection (1) might be exercised by an FHSAA panel of its own motion if not as the result of an unsuccessful appeal such as this instant case. We invited Mr Garnham to provide examples.
32. The first example he relied upon was that subsection (I) provides the power for the FHSAA to nationally disqualify a practitioner upon a specific application made by a PCT under subsection (4)(a). Quite apart from the fact that this is not an exercise of a “stand alone” power, we do not consider that parliament enacted any corresponding power that would entitle the FHSAA to grant the application. Mr Garnham suggested that the power could be derived from subsection (1). We disagree. In our view it is clear that subsection (1) only gives power to the FHSAA panel to impose a national disqualification when the panel itself has made on order removing a practitioner from the list in the exercise of the power conferred under section 49M(4).
33. The only other example he was able to provide was where a FHSAA panel deciding an appeal against a decision to remove a practitioner’s name on a contingent basis decides that the practitioner’s name should be removed simpliciter. In our view this example serves only to emphasize that the constraints to the operation of section 49N(1) for which the Appellant contends simply do not exist.
34. Firstly, the argument is circular: a FHSAA panel could only make the sort of decision cited in the exercise of its powers under section 49M(4). Moreover it is, in our view, difficult to see why the objective intended by Parliament when enacting section 49M(4) and section 49N(1) applies to the scenario advanced and not to the instant appeal. Leaving aside the submission that a PCT may make specific application under section 49N(4) in certain defined circumstances, the logical consequence of the submission advanced would be that a FHSAA panel is only able a make a decision on national disqualification of its own motion when it forms a view more stringent than that considered by the PCT panel but not when the decision of the FHSAA panel is in accord with the decision below. We consider that the construction for which the Appellant contends would lead to absurd results.
35. Mr Garnham submitted that in the situation where an Appellant challenges an order for contingent removal and the FHSAA panel makes an order for removal, it was only sensible that there is power for the FHSAA to make an order under section 49N(1) for there would have been no earlier removal made by the PCT. Whilst we see the internal logic of that discrete point in the analysis of his contention, we ask rhetorically why it is not also sensible that the power granted under section 49N(1) applies equally to the situation where the FHSAA panel makes exactly the same removal order as the body below.
36. The effect of the differentiation in power that the
Appellant’s primary contention inherently encompasses would mean that a
practitioner who appeals a contingent removal order places himself at risk of a
national disqualification. In contrast, the practitioner in respect of whom the
FHSAA panel makes a decision to remove and who is unsuccessful on appeal
(absent an application by the PCT) will avoid the risk of a national
disqualification. If Parliament had intended to limit the power to impose
national disqualification to such confined and arbitrary circumstances we
consider that it would have made this clear. If Mr Garnham’s contention is
correct a FHSAA panel, (absent an application from the PCT under section
49N(4)), would have no power to consider the imposition of a National
disqualification even if it takes the view that the practitioner’s conduct or
inefficiency, which necessitates removal from the local PCT list, is just as
likely to pose risk to other patients in a different geographical location. We
do not consider that, given the overall scheme of the Act, this
is what Parliament intended or enacted.
37. Second, it is, in our view, significant that section 49N(3) specifically provides that “the FHSAA may also impose a national disqualification on a practitioner if it dismisses an appeal by a practitioner against the refusal by a Primary Care Trust to include him in such a list” (our emphasis). The additional and specific power enacted was plainly considered to be necessary in order to prevent a practitioner who is considered wholly unsuitable for inclusion in a local list from continuing to seek approval in other PCTs throughout the country. As Mr Forde pointed out the effect of the Appellant’s primary contention would be that the FHSAA upon making an order for removal cannot nationally disqualify a practitioner under section 49N(1) but can, pursuant to section 49N(3), nationally disqualify a practitioner yet to feature on the list of the PCT who refused approval. It would be absurd if this particular subsection of practitioners were singled out in this way. It is plain to us that Parliament enacted subsection (3) precisely because the condition precedent to the exercise of section 49N(1) (i.e. an order for removal by the FHSAA) cannot be satisfied in such a case.
38. Likewise, in our view, the applications permitted under sections 49N(4) (a) and (b) are designed to provide a separate and distinct mechanism whereby a PCT can bring their concerns about a practitioner, who has come to local attention but who has not appealed the local decision, to the attention of the FHSAA. The ability to make this application is confined to very particular circumstances, namely, where a practitioner’s name has actually been removed by the PCT or where there has been a refusal to nominate or approve him for inclusion and there has been no appeal. Again, in our view subsections (a) and (b) exist because the Parliamentary draftsman was aware that the condition precedent to the FHSAA making an order for national disqualification under section 49N(1) could not apply in these situations.
Subparagraph (a) expressly
applies where it is, indeed, the PCT who has removed the practitioner
(our emphasis). This can occur, for example, after the time permitted for the
lodging of an appeal has passed and the prohibition imposed by section 49M(6)
against such an act is no longer operative. Another example where subparagraph (a) could be used is where
a practitioner is removed by a PCT because he has not complied with conditions
imposed under a contingent removal (see section 49L(3)) and he has not
appealed.
39. We note, however, that whilst subsection (4)(a) is capable of enabling an application to be made by a PCT after the FHSAA has dismissed an appeal Parliament has granted no corresponding power to the FHSAA to make the order sought. We reject Mr Garnham’s submission that the power can be derived from subparagraph (1). The plain and ordinary meaning of that subsection is that it applies “If the FHSAA removes the practitioner from a list…” In the absence of an appeal, the condition precedent in subparagraph (a) cannot, in our view, be satisfied when it is the Applicant PCT who has already removed nor can it apply in subparagraph (4)(b) applications. With regard to the latter it will be
noted, however, that if the practitioner unsuccessfully appeals against the refusal to nominate or approve him for inclusion in a list, subparagraph (3) does expressly confer power to the FHSAA to nationally disqualify upon dismissal of his appeal.
40. We consider the effect of the provision of section 49M (3) and (4) is that we had power to remove the Appellant from the Respondent’s List and we so ordered. In our view section 49N (1) is clear and unambiguous in its terms: It gives a freestanding power to the FHSAA panel to impose a national disqualification if it removes a practitioner’s name from a local list. For the reasons above stated we do not agree that it is to be construed in the manner for which the Appellant contends. We do not consider that that the true nature of the statutory provisions is such that the effective decision removing the Appellant’s name from the Respondent’s list was that made by the PCT panel in July 2003. Consequently we consider that we have the power to order national disqualification under section 49N(1) if we consider it appropriate to do so.
The Guidance
41. We considered the Guidance contained in “Delivering Quality in Primary Care” published by the Department of Health. Paragraph 8.1.4 states “when considering an appeal from a doctor the FHSAA can decide itself to impose a national disqualification.” The Appellant submitted that the Guidance was wrong. For the reasons given above we disagree.
42. For the sake of completeness we should refer to the matter raised by the Appellant as to a potential alternative means of conferring the power to consider national disqualification. Mr Garnham made it clear that he raised the matter not on instructions but on the basis of his duty to the FHSAA panel and, further, that it was applicable only if the Respondent made “ the necessary application.” He also made it clear that he did not concede that his alternative analysis was correct. The argument ran thus. Although the decision to remove was made in July 2003 the act of removal could only take place after the dismissal of the appeal because of the effect of section 49M(6). On this analysis the earliest date that the PCT could remove the Appellant’s name was after the decision of the FHSAA panel was handed down on 16th December 2004. If the PCT made an application to the FHSAA within three months of the date of removal the FHSAA would thereby have power to nationally disqualify the Appellant.
43. In his written submissions Mr Forde for the PCT pointed out that on 21st December 2004 the PCT wrote to the Appellant informing him that his removal would take place with effect from 16th December 2004. On the same day the PCT wrote to the FHSAA seeking an order for national disqualification. The Appellant has made no submissions to the effect that this could not constitute removal or in relation any issues concerning the adequacy of this correspondence as notice or service of the application.
44. Although it appears to be the case that the requirements of Section 49N(4)(a) are fulfilled on the facts of this case so as to allow an application to be made, we do not consider that Parliament has granted any corresponding power to us to grant this specific application. In our view, the powers to impose a national disqualification conferred in both subsection (1) and (3) of section 49N of the Act are specifically confined to the requirements set out and are separate and distinct in each of those subsections. In our view, the power granted in subsection (1) cannot be “borrowed” so as to remedy the lack of a grant of power in subsection (4).
45. The Appellant’s position is that the FHSAA panel’s conclusions on the facts, in so far as they were against him, were wholly wrong and that national disqualification would be wholly unjust. He relied upon all the submissions on the merits of the appeal already advanced. Despite our invitation to do so the Appellant did not advance any submissions as to why an order for national disqualification would be unnecessary or inappropriate in the light of the specific findings we made. In these circumstances we have reviewed the facts found and the basis of our decision. We are of the view that the issue of national disqualification should be considered separately in relation to each of the conditions we found established.
We have considered afresh all the circumstances, including the seriousness of the assaults, the period of time over which the assaults were committed upon each patient, the vulnerability of the patients concerned, the effect upon those patients and the gross breach of trust involved. We have also taken into account the length of time since the assaults upon Ms L and Ms D were committed. We consider that the Appellant poses a real risk to female patients. Further, in our opinion the professional conduct of the Appellant is such that there is no realistic prospect of a review being successful if held within the period specified in section 49N(8)(a) of the Act, in which case the reference to “two years” in that provision shall be in reference to five years. We consider that it is reasonable and proportionate to make such a direction.
47. We have considered whether the circumstances that gave rise to the Appellant’s inefficiency were essentially local to the area in which the Appellant practiced. We have looked again at the evidence, the Appellant’s submissions in the appeal and our findings in the main hearing. True it is that the particular practice in which Dr Chyc worked was situated in an area of high social deprivation and was very demanding in terms of morbidity. Dr Chyc undoubtedly suffered additional stress and anxiety because of the demands made upon his time, amongst other factors. We have also borne in mind that as senior partner bore a good deal of additional responsibility not least in relation to modernisation and expansion of the practice. Whilst we consider that all these and other factors undoubtedly played a part in the extent of the inefficiency admitted by Dr Chyc, it was common ground that the primary cause for his inefficiency was his depressive illness.
48. We refer to paragraphs 173 to 186 of our decision. In our view the Appellant’s inefficiency was grave. Essentially, the Appellant’s lack of true insight into: the nature of his illness; its effect upon the services he was expected to provide; its potential and actual effect upon patients as well as the ordinary requirements in relation to efficient practice is such that we consider that he poses a risk to the safety of patients and the efficiency of the services that he would be expected to provide on whichever list and in whatever locality he might seek to practice as a general practitioner in the National Health Service.
49. We have weighed the prejudice to the Appellant as against the potential prejudice to the patient
safety and the efficiency of the NHS should the Appellant not be disqualified from practice as a general practitioner on a national basis. In all the circumstances, not least the serious nature and extent of the Appellant’s inefficiency, we have decided that the direction we should make is that it is reasonable and proportionate to impose a national disqualification upon the Appellant.
50. Accordingly we direct that the Appellant, Anthony David Chyc (GMC registration number 2818001), is hereby nationally disqualified from inclusion in all lists, prepared by all Primary Care Trusts, referred to in section 49F(1) of the National Health Service Act 1977 as amended, and all lists deemed to succeed or replace such lists by virtue of regulations made thereunder.
51. We consider it appropriate to say that if the inefficiency
issues had been the only matter before us we would not have been minded to
express an opinion in relation to the prospect of review pursuant to section
49N(8)(a) and the Regulations made under section 49N(9).
52. We direct that, subject to the permission of the President of the FHSAA, it would be appropriate that any future application should be reserved to this panel if at all possible.
54. The attention of both parties is drawn to the provisions of Rule 43 of the Rules.
55. Finally, in accordance with Rule 42(5) of the Rules we hereby notify the Appellant that he may have rights of appeal from this decision under section 11 of the Tribunals and Inquiries Act 1992. Any right of appeal lies to the High Court and the Appellant should file any notice of appeal with that court within 28 days.
DATED this…………day of………………2005
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Chairman