IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY

 

Case No. 12362

 

 

 

MR. ROBIN CHAUDHURI –             CHAIRMAN

 

DR. R.K. RATHI –                                PROFESSIONAL MEMBER

 

MR. C. BARNES –                             LAY MEMBER

 

 

 

DR. KLAUS GODER

(GMC Registration No. 6102527)

Appellant

 

-and-

 

 

NEWCASTLE PRIMARY CARE TRUST

Respondent

 

 

 

______________________

 

DECISION WITH REASONS

_______________________

 

 

 

 

 

 

 

 

 

 

Dated 16th June 2006

 

 

 

 

ROBIN CHAUDHURI

Chairman

 

 

1.         This is an Appeal by Dr. Klaus Goder against the decision of Newcastle PCT (hereinafter referred to as the ‘PCT’) to conditionally include him on their Medical Performers List, contrary to Section 8(1) NHS (Performers List) Regulations 2004.

 

 

2.         At the Hearing on 12th June 2006 Dr. Goder was assisted by Mr. Redge Carpen, Quality Manager for MTS. The PCT were represented by Ms. Christine Biggs, Head of Contractor Administration and Screening Services and Dr. Neil Morris, Deputy Medical Director, Newcastle PCT.

 

 

3.            Background:

 

            Dr. Goder is a German national, practising from his surgery in Neuss, Germany.

 

            On 18th October 2005 the PCT received a completed application form, together with supporting documentation from Dr. Goder. Dr. Goder wished to apply to join the PCT’s Medical Performers List in the capacity as a part-time locum.

 

            On 17th February 2006 the PCT wrote to Dr. Goder confirming that he would be conditionally included on their Medical Performers List. Those conditions are as follows:-

 

“(1)     That your work as an NHS General Medical Practitioner in England be restricted to work as a GP Locum with the out of hours provider Northern Doctors Urgent Care;

 

(2)        That before taking up work with any other out of hours provider, you notify the Tyne and Wear Contractor Services Agency or Newcastle Primary Care Trust in order that an assessment can be made of that provider’s induction/working arrangements prior to your commencement with them;

 

(3)        That you refrain from working in wider NHS general practice as a GP unless otherwise agreed with the Tyne and Wear Contractor Services Agency or Newcastle Primary Care Trust.

 

            ‘Wider NHS general practice’ refers to work as a GP Locum, principal, salaried partner or assistant in any aspect of NHS general practice other than the out of hours service”.

 

Dr. Goder subsequently wrote to the FHSAA on 9th March 2006 declaring his intention to appeal against the imposition of the above conditions.

 

 

4.         Dr. Goder’s evidence:

 

The Panel had the opportunity to consider all the material presented on behalf of Dr. Goder. These included his Curriculum Vitae, various references and a Statement of Case prepared by Mr Carpen.

 

At the hearing on 12th June 2006 Dr. Goder gave oral evidence and submitted the following:

 

(i)         That he was an experienced General Practitioner who had been practising from his own surgery in Neuss for over 15 years;

 

(ii)        That he was a former secretary to the German Medical Association and Head of their International Department. He was also involved in the development of an EU Directive regarding the free movement of doctors;

 

(iii)       That for the last two years he had been working in the United Kingdom as a part-time Locum for various PCTs in their “out of hours services”. He accepted that his experience of the NHS was limited to the “out of hours services” and that he had never worked in “daytime” NHS general practice. In any event, Dr Goder maintained that his own experience in Germany, coupled with his locum experience in the UK, equipped him to deal with any issues that could arise during “daytime” practice;

 

(iv)       That he had been included on Surrey PCT’s List without any conditions. However, during the course of the Hearing Dr. Goder produced correspondence from Surrey PCT confirming that they had recently sought to remove him under Regulation 10(6), Performers List Regulations 2004 (a failure to perform services within the area of the PCT for the preceding 12 months), but had stayed any further action until determination of this matter.

 

(v)        That the PCT were in breach of their obligations under EU Law relating to the free movement of workers.

 

 

5.         The evidence of the PCT consisted of a number of documents, of which the salient ones were as follows:

 

(i)         A Statement from Dr. J. Harrison, Assistant Director of Post-Graduate GP Education, Newcastle University and GP Advisor, Department of Health. It should be noted that Dr. Harrison was unable to attend the Hearing and therefore Dr. Goder was given the opportunity prior to the Hearing of requesting his attendance. That offer was declined by Dr. Goder in a letter dated 7th June 2006.  Dr. Harrison’s Statement did not specifically deal with Dr. Goder’s case, but sought to provide the Panel with an overview of:

 

(a) the general difficulties that non-UK GPs (including those from Germany) experience within the NHS;

 

(b) the differences between “out of hours” practice and “in-hours” (or “daytime”) practice.

 

            (ii)            a Statement of Opposition; and

 

            (iii)            Some details of the Northern Deanery GP Returner and EU Induction

                        Scheme.

 

 

6.         Dr. Morris also gave oral evidence. He stated that:

 

(i)         Working “out of hours” was completely different to that of working “daytime” or “in-hours”;

 

(ii)        There were a host of issues, such as NHS administration and management, information technology systems and antibiotic regulations, that an “out of hours” locum practitioner could only have limited knowledge of;

 

(iii)       There were no issues relating to Dr. Goder’s clinical competence. However, a short induction course dealing with these issues in (ii) above, carried out in conjunction with the Northern Deanery, would be of benefit to Dr. Goder.

 

In the light of these observations, the Panel afforded Dr. Goder and Mr. Carpen the opportunity of discussing a compromise with the PCT. Whilst all the parties were, in principle, prepared to discuss matters, it was felt by Mr. Carpen that a decision by the Panel would be their preferred option. Dr. Goder was given an opportunity to respond to the points made by Dr Morris and to deal with a number of scenarios raised by the Medical member of the Panel. Whilst there was no doubting his clinical competence the Panel were left in no doubt that Dr Goder  knowledge of  NHS practice and procedure was limited. An example of this was Dr Goder ‘s explanation of  what was meant by a “2 week wait “.

7.         The Panel’s Findings:

 

Section 8(1) of the NHS (Performers List) Regulations 2004 states that a PCT “may” impose conditions to a (medical) performer’s  inclusion on their Performers List, having regard to the preventing of fraud or prejudice to the efficiency of the service. The issue of fraud is not applicable in this case.

 

In the present case, the PCT had exercised their discretion and imposed the conditions as set out in paragraph (3) of their Decision. In exercising that discretion, the Panel considered whether it was necessary to impose conditions on Dr. Goder’s inclusion on the PCT’s Medical List. Such consideration involved an analysis of all the documentation before the Panel and the oral evidence given by the parties.

 

There was no doubting Dr. Goder’s clinical experience. However, that clinical experience was largely gained in Germany. His experience of the NHS was confined to the “out of hours service” which the Panel accept is quite different from the “daytime” or “in-hours” practice of the NHS. To that extent, the Panel accepted the evidence of Dr. Morris. The Panel noted that Dr Goder had been included in Surrey’s PCT List without conditions. Dr Morris was candid when he stated that this was a matter for Surrey PCT. The Panel felt that inclusion on Surrey’s PCT List did not detract from the fact that Dr Goder’s experience was still limited to “out of hours” only. It is therefore the unanimous decision of the Panel that the imposition of conditions was necessary in this case.

 

The Panel then considered whether those conditions were fair and proportionate to the facts of the case. The parties will, of course, be aware that, under Section 15(1) of the NHS (Performers Lists) Regulations 2004, the Appeal  is by way of re-determination and, under Section 15(2)(b), the Panel have the power to vary or impose a different condition.

 

It is the unanimous decision of the Panel that conditions (1) and (3) should be varied as follows:

            “(1)     That your work as an NHS General Medical Practitioner in

England be restricted to work as an “out of hours” GP Locum, with any registered ‘out of hours’ Provider until compliance with (3) below”;

 

            The Panel have deleted the following:

 

“with the ‘out of hours’ provider Northern Doctors Urgent Care”.

 

The Panel noted that Dr. Goder had worked for a number of PCTs in an ‘out of hours’ capacity for nearly two years.

 

“(3) That you refrain from working in wider NHS general practice as a GP until you have successfully completed (in conjunction with the appropriate Deanery) a suitable induction programme dealing with the policy, procedures and systems of the NHS. In considering what is a suitable induction programme, the Deanery should consider the training that Dr. Goder may have completed with Medical Transfer Services of Cambridge”.

 

“Wider NHS general practice” refers to work as a GP locum, principal, salaried partner or assistant in any aspect of NHS general practice other than the out of hours service”.

 

For the avoidance of doubt, the Panel are content with Condition (2), on the basis that an assessment is simply made of that provider’s induction/working arrangements.

 

The Panel also gave consideration to two other issues raised by Dr. Goder, namely:

 

(i)            the principles of freedom of movement; and

 

(ii)            the issue of discrimination.

In correspondence Dr. Goder referred to EEC Regulation No. 1612/68 on a number of occasions. The said Regulation effectively confers positive, substantive rights of freedom of movement and equality of treatment on EU workers. The relevant part of the Regulation is quoted in Dr. Goder’s Statement of Case.

 

The principles espoused in the said Regulations are not in doubt. Essentially, a worker of a Member State should not be treated differently from national workers by reason of his nationality. During the course of his evidence Dr. Morris confirmed that the E.U. Induction Scheme, or the GP’s Returner Scheme, applies to all doctors (regardless of nationality) who have been out of NHS general practice for some time or those who have limited NHS general practice. Limited NHS general practice can also include those doctors whose practice has been limited to “out of hours” work. (See also letter dated 17/2/06). The Panel therefore do not find that there has been a breach of EEC Regulation No. 1612/68.

 

The issue of discrimination was raised by Dr. Goder but not pursued in any way at the Hearing on 12th June 2006. The PCT sought to deal with this issue in paragraphs 3.1 – 3.4 of their Statement of Opposition. The Panel did not find any evidence to suggest that Dr. Goder was the victim of discrimination.

 

 

8.         Finally, in accordance with Rule 42(5) of the Procedure Rules, we hereby notify that a party to these proceedings can Appeal this decision under Section 11, Tribunals and Inquiries Act 1992 by lodging a Notice of Appeal in the Royal Courts of Justice, the Strand, London WC2A 2LL within 21 days from the date of this Decision.

 

 

ROBIN CHAUDHURI

Chairman

 

16th June 2006