ST

 

In the Family Health Services Appeal Authority               case no: 12166

Heard at Harrogate

 

 

On 28 February 2006

 

 

 

 

 

 

 

Before

 

Mr J D Atkinson (Chairman)

Dr E Walsh-Heggie

Ms S Brougham

 

 

Between

 

DR MARTIN EMMANUEL

Appellant

and

 

LEEDS WEST  PRIMARY CARE TRUST

Respondent

 

 

Representation:

 

For the Appellant:            Mr Moriarty of Counsel

For the Respondent:       Mr Hockton of Counsel

 

 

DECISION AND REASONS

 

 

The Appeal

 

  1. This is an appeal by Dr Emmanuel against the decision of the respondent dated 28 October  2005 to remove the appellant from the respondent’s medical performers list under the  Health Services Act 1977 (as amended) and associated regulations.

 

The Proceedings

 

  1. The respondent included the appellant on its  performers list with effect from 17 August  2004.

 

  1. By notice dated 31 October 2005  the appellant was informed that, following a hearing by a relevant panel on 28 October 2005, the respondent had decided that the appellant should be removed from its performers list. The reasons given for removal may be summarised as follows:

 

i.                    the appellant failed to notify the respondent of an ongoing investigation into his conduct by the GMC  

ii.                  the appellant had not provided general medical services within the respondent’s area within the preceding 12 months

iii.                the appellant had failed to provide an appraisal report covering the previous 12 months of his occupation

 

  1. The appellant appealed to the Family Health Services Appeal Authority. Appeals to the FHSAA are by way of redetermination.

 

The Law

 

  1. Extracts of the relevant law as set out in The National Health Service (Performers Lists) Regulations 2004 may be summarised as follows:

 

 

      Regulation 9 –

      Requirements with which a performer in performers

     list must comply

 

         A performer who is included in a performers list … shall make a declaration to the PCT in writing within 7 days of its occurrence if he…

 

         Reg 9(1)(j) becomes subject to an investigation into his professional conduct in respect of any current or previous employment …

 

 

                                          Regulation 10 – Removal from performers list

 

         Reg 10(3) and (4)(c) the PCT may remove a performer from its performers list  where…

         [the performer] is unsuitable to be included in that performers list

 

         Reg 10(6) Where a performer cannot demonstrate that he has performed  services…. within the area of the [respondent] during the preceding 12 months, [the respondent] may remove him from its performers list

 

                                          Regulation 11- Criteria for a decision on removal

 

         Where a PCT is considering removal in an unsuitability case it shall consider…

 

         Reg 11(2)(e) the relevance of any offence incident or investigation to his performing relevant primary services and any likely risk to any patients or to public finances

 

         Reg 11(7) When making a decision under regulation 10 the PCT shall take into account the overall effect of any relevant incident and offences relating to the performer of which it is aware.

 

Preliminary matters

 

  1. At the outset of the hearing Mr Moriarty, on behalf of the appellant, applied for an adjournment. His submissions may be summarised as follows. Regulation 11 of the regulations, setting out the criteria on which a removal decision should be made, meant that it was necessary to looking at the overall circumstances of the case. Dr Emmanuel was subject to proceedings before the GMC, listed for hearing on 19 June 2006. The appeal before the present  panel should be adjourned to enable the outcome of the GMC proceedings to be taken into account. There was a material distinction for the purpose of the present appeal  between an investigation which resulted in adverse findings by the GMC and one which did not. Accordingly, the present panel, which was required to take into account all the circumstances, should adjourn until the conclusion of the GMC proceedings.

 

  1. Mr Hockton, on behalf of the respondent, opposed the application. His submissions may be summarised as follows. The respondent relied on regulation 10(6) relating to performance of services within a 12 month period. The respondent had a prima facie case on this ground alone. The issues of suitability are peripheral to the present appeal. They related to issues of disclosure and raised a question of trust. The GMC proceedings were immaterial to those issues. The respondent did not wish to rely on the efficiency conditions relating to removal from the performers list.

 

  1. The panel considered the submissions and rejected the application to adjourn. The outcome of the GMC proceedings were not material to the issues under consideration. There were 2 separate grounds for removal before the panel: Regulation 10(6) and Regulation 4(c) on suitability. The outcome of the GMC proceedings did not have a sufficiently close connection to the question of  whether the appellant had performed services in the respondent’s area in the preceding 12 months or the question of trust arising from the appellant’s failure to disclose information or provide evidence about his professional circumstances.

 

The documents and evidence considered

 

  1. Prior to the hearing the parties filed documentation compiled into 2 bundles: A and B. Bundle A was paginated and indexed to R16. Bundle B was paginated to 66. The contents of those bundles need not be set out here. The following additional documents were submitted on the day of hearing: respondent’s skeleton argument, handwritten note of Dr Stout dated 25 Novemebr 2004 together with accompanying FORM 6 dated 23 November 2004, handwritten note from appellant dated 29 December 2005, letter McLaughlin & Co dated 7 February 2006, and summary appraisal of the appellant dated 24 February 2006.

 

Oral Evidence on behalf of the respondent

 

  1.  The panel heard oral evidence on behalf of the respondent from Dr Tom Heyes, clinical Director of General Practice Development. There were no other witnesses called on behalf of the respondent. Dr Heyes adopted as evidence in chief his statement dated 13 February 2006. He was examined, cross examined and re-examined. Relevant extracts of his oral evidence may be summarised as follows.

 

  1.  The reason why a performer is on a list in one area only is mainly practical. It provides one PCT with the responsibility of monitoring a performer. In order to do that it is necessary to know where the performer is and how to contact him. It also helps to know the performers working environment. The appellant has not worked within the respondent’s area.

 

  1. Dr Heyes was concerned about the lack of an appraisal from the appellant. The appellant mentioned a GMC investigation in the course of a telephone conversation on 31 May 2005, a note of which appears at page 48 of bundle A. Dr Heyes expected the appellant to provide further information. The respondent had been sent a letter from Dr Stout  dated 10 August 2005 (page 58 bundle A) relating to  appraisal of the appellant, but it was insufficient  for the respondent’s purposes. The respondent never received the appraisal said to have been undertaken in November 2004. The respondent did receive one dated March 2004, however that did not relate to the relevant year 2004-05 for the respondent’s purposes. To date the appellant has not supplied an appraisal for the relevant 2004-2005 period. The appellant has now produced an appraisal dated 24 February 2006.

 

  1. Dr Heyes had not been involved in sending the appellant a recent reminder about obtaining an appraisal. Dr Heyes was not aware until the hearing that the appellant had worked in neighouring PCT areas. There was an expectation that a performer would be on the list in the PCT area in which he predominantly practiced. Dr Heyes received the documents at page 3 onwards of bundle B with the covering letter from the appellant dated 29 December 2005. Dr Heyes understood that the documents at bundle B 1-32 were not the November 2004 appraisal. The respondent  required a full appraisal by March 2005.

 

  1.  The appraisal dated 24 February 2006 indicated that there were still valid concerns about the appellant. He had been required 2 years ago to provide evidence about information gathering and audit. That evidence had still not been provided.

 

Oral evidence on behalf of the appellant

 

  1.  The appellant gave oral evidence on his own behalf. He was examined, cross examined and re-examined. The appellant did not produce a statement for the purpose of the proceedings.

 

  1.  The appellant’s oral evidence may be summarised as follows. The appellant’s address is 2 Bristow Park, Belfast. He accepted that he had failed to submit an appraisal and that that was is fault. It had been sequestered in a cupboard. The appellant has recently undertaken an appraisal. He had been contacted by the appraisal support office and he had accepted their offer of Dr Campbell to appraise him. There are differences between the systems in Northern Ireland and England. The appellant was aware of the need to have an appraisal every 12 months. He had had an appraisal with Dr Stout and thought that he had 12 calendar months from then.  The appellant contacted the respondent on 31 May 2005. He thought he was being proactive and that there was a further 6 months before he needed to have an appraisal. He had not received a letter in September 2004 reminding him  that an appraisal was required.

 

  1.  The appellant accepted that he had not directly notified the respondent of the GMC investigation.  He had reported it to BBL, an employment agency in Birmingham. The appellant would not speak to anyone about the GMC interim order panel of 19 November 2004 without advice from his lawyers. The appellant refutes the allegations which are the subject of the GMC proceedings.

 

  1.  At this point in examination the panel intervened and noted that it had not received details of the GMC investigation and that  page 52 of bundle A set out the interim order panel decision of 29 November 2004. The interim order panel had found that it was not necessary to make an order. The present panel indicated that in those circumstances, it was not clear how evidence relating to the GMC proceedings would assist in determining the issues before it. Accordingly, counsel moved on to examine the appellant on other issues.

 

  1.  The appellant refuted any allegations that he had misled any employer.

 

  1.  The appellant accepted that he had not worked in the respondent’s area. He noted that the records at page 65 of bundle B indicated that he had worked in neighbouring PCTs.

 

  1.  In cross examination, the appellant said that the documents at 1-32 in bundle B were his November 2004 appraisal but it was no longer in its binding. Page 3 referred to revalidation JuneNovember  [sic] 2004. The appellant had applied to be on the Birmingham list in mid 2005. He agreed that the document at page 7 referred to a letter from Dr Rath dated November 2005. He accepted that the document at pages 1-32 therefore could not be the November 2004 appraisal. The appellant accepted that the document had been enclosed with the letter at page 27 of bundle B that was dated 5 November 2004. The appellant said that he had not intentionally misled by  describing the document as the November 2004 appraisal. The letter had been included in a binder and that might explain what had happened.

 

  1.  The appellant worked principally in the Birmingham area and had no intention of residing in Leeds West PCT area. The appellant commuted between Birmingham and Belfast. The appellant did not notify the respondent of his new address until later.

 

  1. The appellant did notify the BBL agency of the GMC investigation, but he had linked Dr Stout and the agency. The appellant did not undertake an assessment by NCAA because he had been upset by the NCCA attitude to him. He had not  given notice of the investigation because he had not understood the terminology of the requirements. He had only recently appreciated the distinction between complaint and investigation. In March 2004 when he made the application to be included on the list there was no investigation, only murmurings of a complaint.

 

  1.  The appellant had made an application to be included on the Birmingham list. The appellant was not sure whether the application had been refused or deferred. The appellant had also applied to be included on the West Cumbria list. He had been advised to do so by other PCTs. The appellant also thought that he had applied for inclusion on an inner London borough list.

 

The Appellant’s and Respondent’s submissions

 

 

  1. Mr Hockton, on behalf of the respondent, relied on his skeleton argument which may be summarised as follows. The appellant had failed to notify the respondent about the disciplinary investigation of the GMC which remained current, and had failed to notify a change in his address. The appellant had failed  to pursue an up to date appraisal. The appellant had not worked within the respondent’s area for over 12 months.

 

  1. Mr Moriarty, on behalf of the appellant, made a number of submissions that may be summarised as follows. The overarching principle of the regulations was to protect the public. The appellant had been proactive in making arrangement for an appraisal. The appellant is not dishonest. The appellant had brought the GMC investigation to the attention of the respondent and his employment agency. It was accepted that the appellant had not worked within the respondent’s area, but he had worked in neighbouring areas. It would be possible for the relevant officers from neighbouring PCTs to liaise with each other and make appropriate arrangements to monitor the appellant. Overall it was accepted that the appellant had transgressed but discretion should be exercised so that the appellant should not be removed.

 

Assessment of Evidence and  Findings of Fact

 

  1.  The panel finds the appellant to be an unreliable witness for the following reasons. The appellant’s account is inconsistent. In cross examination he said that pages 1-32 in bundle B were his November 2004 appraisal as described in the index to the bundle. On further questioning, when his attention was drawn to the reference, at page 7, to the existence of a letter dated November 2005,  he then agreed that the documents at page 1-32 were not the  November 2004 appraisal. When asked about the covering letter dated 5 November 2004, at page 27 of bundle B, which referred to enclosures and which might create the impression that the enclosures related to the November 2004 appraisal, the appellant said that he had not intended to mislead. The  panel finds that the appellant has not provided a satisfactory explanation for the inconsistency in his evidence.

 

  1.  The panel finds the evidence of the appellant to be vague and that in the course of giving oral evidence he did not give direct answers to some of the questions asked. The appellant’s account was  not supported by documentation which the appellant could reasonably have been expected to provide.  For example, the appellant was unable to state with clarity which PCTs he had applied to for inclusion on their performers list or state why his application to Birmingham had not resulted in his being included on their list. 

 

  1.  The panel does not find the appellant to be a credible witness in relation to factual matters which have been put in issue by the respondent.

 

  1. The panel finds Dr Heyes to be a reliable witness. Dr Heyes’ evidence was consistent, detailed and plausible. His oral evidence was also supported by documentation.

 

  1. The panel prefers the evidence of the respondent to that of the appellant in respect  of the factual matters in issue for the reasons given above Accordingly, the panel makes the following findings of fact.

 

  1.  The appellant is a general practitioner. On 12 March 2004 he was subject to formal  appraised by Dr Stout, lead appraiser for the Eastern Health and social Services Board Belfast. The appellant’s registered address was given as 129 Falls Road Belfast.

 

  1.  By application dated 15 March 2004 the appellant applied to the respondent for inclusion on its list. the appellant gave his address as 2 Bristow Park, Belfast. The appellant declared, amongst other things, that he will inform the respondent in writing within 7 days if he became the subject of  any investigation  by is professional body.

 

  1. On or about 23 June 2004 a complaint was made to the GMC about Dr Emmanuel. The appellant was  notified of the complaint by the GMC in or about June 2004. The appellant did not notify the respondent of the GMC’s involvement at that time.

 

  1. On 17 August 2004 the appellant was included on the respondent’s performers list.

 

  1. On 24 September 2004 the respondent sent the appellant notice to the effect that he was required to provide an up to date appraisal.

 

  1. On 19 November 2004 an Interim Orders Panel decided that it was not necessary to make an interim order against the appellant. The panel noted that the appellant had agreed to undergo an assessment by the National Clinical Assessment Authority. No such assessment was subsequently undertaken. The appellant at that time did not notify the respondent of the GMC proceedings.

 

  1. On 23 November 2004 the appellant and Dr Stout were involved in  further appraisal of the appellant. The appraisal process  was not completed because no personal development was produced.

 

  1.  In or about February 2005 the relevant authorities in Northern Ireland issued an ‘alert’ letter concerning the appellant. The respondent at that time did not receive notice of such action.

 

  1.  In or about February 2005 the respondent wrote to the appellant and  reminded him of the need for an up to date appraisal. Subsequently, the respondent did not receive proper documentation relating to a full and completed  appraisal of the appellant for the relevant period March 2004 to March 2005.

 

  1. On 31 May 2005 the appellant contacted Dr Heyes by telephone. In the course of the conversation the appellant mentioned that he had had dealings with the GMC and had undertaken an appraisal with Dr Stout in November 2004. Dr Heyes made inquiries of Dr Stout and expressed concerns about the appellant’s continued inclusion on the respondent’s list.

 

  1. On 30 June 2005 the respondent in error removed the appellant from its list on the grounds that the appellant had not practiced within its area in the preceding 12 months.

 

  1. On or about 29 July 2005 the respondent , in recognition of its error in removing the appellant from its list in the previous month,  notified the appellant that such a step would not be taken until after 17 August 2005.

 

  1. On 25 August 2005 the respondent’s reference committee decided to remove the appellant from its list on the grounds of unsuitability. The appellant appealed to a panel which considered the matter by way of oral hearing.

 

  1. By application dated 13 September 2005 the appellant applied for inclusion on the North Cumbria performers list. The appellant on unspecified dates has also applied for inclusion on the performers list in Birmingham and, on his own admission to a London borough.

 

  1. On 28 October 2005 at an oral hearing of the relevant panel the respondent decided to remove the appellant from its list. the appellant appealed to the Family Health Services Appeal Authority.

 

  1. The appellant remains the subject of continuing proceedings before the GMC with a final hearing said to be listed for June 2006.

 

Decision and Reasons

 

  1. The panel considered all the evidence, the submissions of the representatives and the relevant regulations. In coming to its decision the panel has considered the overall effect of any relevant incident and offences relating to the performer of which it is aware.

 

  1. The panel unanimously orders that the respondent be removed from the respondent’s performer list because the appellant cannot demonstrate that he has performed services within the area of the respondent during the preceding 12 months.

 

  1. The reasons for that decision are as follows. The appellant has not performed services in the respondent’s area. The appellant failed to notify the respondent within 7 days of an ongoing investigation into his conduct by the GMC. A complaint was made  to the GMC in June 2004 and an interim orders panel was convened on 19 November 2004. The respondent did not become aware of the GMC’s involvement until 31 May 2005. The appellant has failed to provide a satisfactory explanation for the delay in giving the respondent notice of the GMC proceedings. The appellant has failed to provide the respondent an appraisal report covering the relevant 12 months of his occupation.

 

  1. In the light of the above the panel finds that it is not necessary to make a decision on removal on the basis of the application of regulation 10(3) and 10 (4)(c) (unsuitability cases).

 

Summary

 

  1. Dr Martin Emmanuel is removed from the Leeds West Primary Care Trust performers list.

 

  1.  In accordance with Rule 42 (5) of the Rules we hereby notify that a party to these proceedings can appeal this decision under Sec 11 Tribunals & Inquiries Act 1992 by lodging notice of appeal in the Royal Courts of Justice, The Strand, London WC2A 2LL within 14 days of receipt of this decision.

 

 

 

 

 

Signed                                                                                                            Date

 

 

MR J D Atkinson

Chairman