CASE NO. 12243

IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY

Mr. D Pratt - Chair

Dr S Sharma - Professional Member

Dr D Ratzer - Member

BETWEEN:

DR MOHAMED ADEL WAHAB

(GMC number 2880552)

Appellant

-and-

MEDWAY TEACHING PRIMARY CARE TRUST

Respondent

DECISION AND REASONS

APPEAL

1. This is an appeal by Dr Mohamed Adel Wahab (Dr Wahab) against a decision by Medway Teaching Primary Care Trust (the PCT), communicated by its letter dated 16 December 2005, to remove him from its Performers List under Regulation 10 of the NHS (Performers List) Regulations 2004 (“the Regulations”).

2. The appeal was heard over four days from 29 August to 1 September 2006 at the Care Standards Tribunal, London SE1. Dr Wahab was represented by Mr Nicholas Peacock, instructed by RadcliffesLeBrasseurs, solicitors, and the PCT by Mr Jeremy Hyam, instructed by Capsticks, solicitors.

DECISION

3. Our unanimous decision is to dismiss the appeal and direct the removal of Dr Wahab’s name from the Performers’ List of this PCT.

REASONS

The PCT decision under appeal

4. The PCT’s decision to remove Dr Wahab from the Performers’ List was expressed to be on grounds of efficiency and of suitability, these being shorthand terms for the conditions set out at regulation 10 (4) (a) and (c), respectively, of the Regulations[1]. In respect of efficiency, the Decision Making Group (“DMG”) of the PCT relied on Dr Wahab’s failure to comply with the GMC’s Statement of Requirements dated 29 August 2003 taken together with other efficiency concerns. In respect of suitability, the PCT relied on their findings in respect of his unacceptable sexualised behaviour towards three former members of his staff, Mrs McGregor, Mrs Burns and Ms Dixon, which the PCT was satisfied would alone justify his removal. In addition it relied upon breaches of undertakings given to the PCT on 26 November 2004 which were designed to stand in lieu of a suspension, and to prevent contact between Dr Wahab and members of his staff, save in the presence of a PCT officer. Attached to their notification letter was a more detailed consideration of the decision and their findings as to the unacceptable behaviour.

The grounds of appeal, as amplified

5. Dr Wahab’s Notice of Appeal, dated 12 January 2006, and supplemented by Further and Better Particulars dated 2 May 2006, relied upon alleged procedural failures by the PCT during the process of reaching its decision, which were not pursued at this appeal for the very good reason that any deficiencies were capable of being remedied by the redetermination of this Panel. In addition the decision in relation to efficiency was attacked on the grounds which may be summarised as follows:

a. Dr Wahab had undergone a Performance Assessment by the GMC between 11 and 30 May 2003 and had agreed to a Statement of Requirements arising out of the findings of that Assessment, and thereafter instigated certain of the steps including contacting the Kent Deanery for assistance, and arranging a training programme with a Dr Banner-Martin which was operative between May and September 2004, when ill health prevented further effective compliance with the Statement of Requirements.

b. Delay in putting a retraining programme in place was occasioned partly by the refusal of the PCT to fund any remedial training.

c. Further compliance and an intended further Performance Assessment by the GMC were thwarted by his ill health, further complicated by his suspension from the Performers List by this PCT from 25 January 2005.

d. At all times from September 2004 onwards Dr Wahab remained unfit to resume his GP practice or to undergo a Performance Assessment on account of a lumbar spinal condition which caused disabling pain and limitation of movement and affected his legs, by neurological problems with his feet probably attributable to diabetes, and latterly by impaired mental health.

e. Insofar as the PCT relied on what were characterised as a “significantly high” number of complaints brought to the attention of the PCT about his practice, there was no evidence of comparative rates of complaints experienced by other GP’s and in any event these complaints were not said to be sufficient in themselves to justify removal.

f. A decision to remove him from the list in these circumstances was

i. Disproportionate;

ii. Failed to have regard to the positive steps Dr Wahab had taken prior to his ill health;

iii. Failed to have sufficient regard to his ill health as a reason for his inability to comply with the GMC Statement of Requirements;

iv. Conflicted with an earlier decision of the DMG that there was insufficient evidence to remove him on that basis.

g. A proportionate response, which the FHSAA was urged to consider, was to impose conditions by way of a contingent removal.

6. The Notice of Appeal and further Particulars attacked the decision on suitability on the ground which may be summarised as follows:

a. Allegations of inappropriate or sexualised behaviour towards three staff members required a high standard of proof (indeed the skeleton argument of the Appellant invited us to adopt the criminal standard);

b. the PCT was wrong to prefer the evidence of these complainants to that of Dr Wahab, and specifically

c. the PCT was wrong to accept the account of a Mrs McGregor which was not tested as she did not give evidence, and there was a possibility of it being motivated by a desire for financial reward;

d. The PCT was wrong to accept the evidence of a Ms Sian Burns (a former Practice Nurse) who made wide ranging allegations of which only one element referred to alleged harassment, and this episode could not be dated by her and complaint had only been raised after she left Dr Wahab’s employment. In addition some of her evidence, such as whether there was a sink for handwashing in the doctor’s room and whether the Practice could display information about drugs leaflets, was demonstrably incorrect.

e. The PCT was wrong to accept the evidence of Ms Tricia Dixon, a former Practice Manager, as her complaint [of inappropriate sexual touching]:

i. Was only made after the breakdown of the working relationship;

ii. Raised two undated incidents which were so vague that they were difficult to rebut;

f. No or no significant support for Ms Dixon could be found in evidence of “recent complaint” from a Ms Johnson as to the look on her face at the time of the alleged behaviour.

g. The breaches of undertakings (which consisted of some 19 telephone calls made to the surgery premises shortly after he had agreed not to make such calls directly, among other things) were admitted but Dr Wahab but he had not fully understood what was required of him by reason of great stress, and the breaches were incapable of amounting to unsuitability.

7. The PCT’s Response to the Notice of Appeal maintained that the findings on unsuitability and efficiency were right and that removal was justified, reasonable and not disproportionate. The PCT’s outline submissions for the purpose of this appeal also stressed the loss of the necessary trust and confidence which must exist between a PCT and a doctor on its Performers List, pointing to his inability or unwillingness to comply with conditions or undertakings (in particular those he agreed to in November 2004, as an alternative to suspension), his untrue explanations that he did not understand the undertakings or their importance, and his conflicting accounts to the GMC and to the PCT as to whether he was fit for work,

Relevant legal framework, preliminary rulings and evidence considered

8. This appeal is brought pursuant to Section 49M of the National Health Service Act 1977, as amended (“the 1977 Act”) and regulation 15 of the Regulations, by virtue of which it proceeds by way of a redetermination of the PCT’s decision, and this Panel may make any decision which the Primary Care Trust could have made.

9. Regulation 11 of the Regulations sets out the criteria for removal in cases of unsuitability and inefficiency, and we have had regard to those and to the Department of Health Guidance to which our attention was drawn by the parties, while not limiting our consideration of factors to those mentioned in the guidance, and we have considered all the factors urged on us in this appeal.

10. Regulation 12 gives us a discretion to remove Dr Wahab contingently from the performers list, subjecting him to conditions, but limited only to the case on efficiency: if we find him to be unsuitable, we have no discretion to remove contingently. Contingent removal requires that we impose such conditions as we may decide with a view to “removing any prejudice to the efficiency of the services in question”: regulation 12 (2) (a).

11. In our view the burden of satisfying us that the case is proved, lies on the PCT, and we invited the PCT to lead its evidence first. In light of representations we heard about the standard of proof, particularly in relation to allegations of sexually inappropriate conduct, we indicated how we intended to direct ourselves to approach, and both Counsel accepted that the following direction is the correct one.

12. The panel recognises that the allegations in this case are serious allegations and that cogent and compelling evidence is required if they are to be found proved. When considering whether we are satisfied on a balance of probabilities that an allegation is established we bear in mind that the more serious the allegation, the less likely it is that it occurred and the stronger should be the evidence before we conclude that the allegation is established.

13. Objection was taken to certain proposed evidence and we were invited to give a preliminary ruling whether we would receive the following evidence:

a. Certain passages at paragraphs 44 to 55 [provisionally redacted in our copies, pending our ruling] of the witness statement of Dr Timothy Woodman, Medical Director of the PCT, dated 30 June 2006;

b. A passage at paragraph 18 of the statement of Mr Bill Gillespie, Chief Executive of the PCT, dated 30 June 2006. It too had been provisionally redacted pending our ruling.

c. A letter from a Ms J McGregor to West Kent Health Authority dated 23 March 2001[2], which the PCT wished to stand as a witness statement and be received by us as evidence in that form.

d. A “statement of events” (albeit not in a conventional witness statement format with a statement of truth) from Ms S Johnson[3], a secretary at Dr Wahab’s practice, and dated 17 December 2004.

14. As to the evidence identified at (a) and (b) above, we were told that this had not been available or considered by the DMG of the PCT when making the decision under appeal in this case. Objection was taken on the basis that it could not therefore be considered by us under the statutory powers we have, and would be prejudicial to Dr Wahab. Reliance was placed on Rule 41 (7) of the Family Health Services Appeal Authority (Procedure) Rules 2001 (“the Rules”) which says:

“At any hearing the panel may, if it is satisfied that it is just and reasonable to do so, permit a party to rely on grounds not stated in his notice of appeal ….. and, in respect of an appellant, to adduce any evidence not presented to the respondent [PCT] before or at the time it took the disputed decision.” [emphasis added]

It was further argued that to admit additional or new material would involve our acting as a first instance tribunal in relation to those matters and deprive Dr Wahab of a further bite at the cherry by way of appeal to the FHSAA.

15. We were told that the redacted evidence related to (i) further patient complaints which had come to light, and (ii) concerns about Dr Wahab’s prescribing. Mr Hyam argued that we should admit this evidence for a number of reasons, including:

a. As to our powers:

Rule 41 (2) set out a wider general power. It reads:

“Subject to this rule, the panel shall conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of proceedings.”

Rule 41 (6) also conferred wide general powers:

“The panel may receive evidence of any act which appears to it to be relevant, notwithstanding that such evidence would be inadmissible in proceedings before a court of law, but shall not refuse to admit any evidence which is admissible at law and is relevant.”

It is fair to say that Mr Peacock drew our attention to rule 41 (6) but Mr Hyam placed little reliance on that. He did rely on rule 41 (2) which he described as “the over-riding rule”.

b. Admitting the evidence would be just, and it was relevant to our findings on the issues of suitability and efficiency, and to the sanction which was appropriate.

c. The role of the FHSAA was to redetermine the case, and we were in the same shoes as the PCT with regard the range of decisions we could make. If we “wound the clock back to 2005” it would only trigger a further hearing by the PCT to take into account the new matters. We should look at the current position and not shut our minds to what has happened since the date of the PCT decision.

d. We should look at the totality of the available evidence and could protect an appellant by not admitting it if that evidence could reasonably have been put forward at the original hearing.

e. We had admitted medical evidence as to the condition and prognosis of Dr Wahab which included a recently obtained psychiatric report and an updated orthopaedic report, both prepared on the instructions of the GMC.

f. There was no demonstrable prejudice from its admission, because it had been served on Dr Wahab’s legal advisers and there had been ample opportunity to take instructions on it and (if appropriate) obtain evidence to rebut it.

16. As to the witnesses whose evidence was contained in the challenged statements identified at paragraph 13 (c) and (d) above, Mr Peacock’s objection was based on the fact that notice had been given at the Directions hearing that Ms McGregor was required for cross examination of her highly contentious account and until the date of the hearing it had been understood she was to be called. Her evidence (which was in our bundles which we had read) contained serious allegations of inappropriate sexualised comments, an inappropriate touching, and a course of conduct amounting to sexual harassment, which she alleged had caused her to leave his employment. Ms Johnson gave an account of being present on an occasion when Dr Wahab was in close proximity leaning over Ms Dixon at her desk and she leaned forward and pulled a face. This was relied on as corroborative of Ms Dixon’s complaint that she was touched in a sexual manner.

17. We gave our ruling, with brief reasons, orally on the first day of the hearing. It is appropriate to set them out in writing. The FHSAA is the creation of statute and derives its powers from statute and the Rules. It cannot call upon powers outside that framework. We acknowledged that we were sympathetic to much of what Mr Hyam had urged by way of the merits of admitting the additional evidence from Dr Woodman and Mr Gillespie (the points set out at b to f of paragraph 15 above). However before we are able to get to the point of considering those merits we need to consider our powers under rule 41, which governs the conduct of the hearing. Mr Hyam acknowledged that these passages were new material, additional to that considered by the PCT. We were unable to look at it as simply a “repackaging”, or even an amplification, of evidence which had been considered by the PCT for the purpose of its decision under appeal. In our view the meaning of regulation 41 (7) is clear and does not permit of any ambiguity or latitude of interpretation. It expressly confers a limited power to permit an appellant to rely on further grounds or to adduce new evidence not placed before the PCT at the time it took its challenged decision. That is the decision we are redetermining. Regulation 41 (7) does not extend that discretion to new evidence adduced by the Respondent PCT. In our view (and Mr Hyam agreed with this in the course of argument) regulation 41 (6) is a procedural provision, enabling us to look at evidence which would otherwise be inadmissible before a court of law, applying the normal rules of evidence. It does not confer additional substantive powers to admit new evidence from a PCT. We were invited to rely on regulation 41 (2), but in our view that does not assist the PCT for two reasons. Firstly it is, on its face, concerned with the manner in which the hearing is conducted, and therefore is limited to the procedure followed by the panel, and does not confer powers to look at new evidence not before the PCT. Secondly, even if that is wrong, regulation 41 (2) starts with the limiting words “subject to this rule” which obliges us to look elsewhere within the rule, including to regulation 41 (7) which contains specific provisions as to what evidence we can allow the parties to adduce.

18. In the result, we ruled that we had no power to admit the challenged evidence from Dr Woodman and Mr Gillespie. We should add that we had power to admit the updated medical evidence concerning Dr Wahab, to which Mr Hyam referred in his submissions, and in any event this was done without objection and the PCT relied upon that evidence in arguing its case before us.

19. It cannot be said that this restriction is without any rational basis, as the drafters may well have considered that by the time a PCT moves against a practitioner, it could and should have assembled cogent evidence to prove its case at a time of its choosing, while the practitioner may have had only 28 days in which to take advice, obtain evidence and present his or her case. Moreover there is some force in the submission that the practitioner may be deprived of two bites at the cherry, as Parliament intended by giving a right of appeal, if the PCT were able to bring further evidence of new matters, perhaps occurring after its original decision was made. It may be a question of where the line is drawn. In our view this could be addressed as a matter of degree and of weight if the present restrictive effect of regulation 41 (7) were to be removed. We express the hope that the form of the present rule may be reconsidered in the near future.

20. We further ruled that the documents containing the evidence of Ms McGregor (in respect of matters said to have occurred on non-particularised dates in 2001) and Ms Johnson should be excluded from our consideration. Ms McGregor’s evidence was central to the PCT’s decision under appeal, particularly on suitability. We accept that at our earlier Directions hearing she was among those witnesses Mr Peacock intimated he would wish to cross-examine and the opportunity to do so was in our view important to the fair disposal of Dr Wahab’s case. We were not told why she was not available to give evidence and no application was made to us for a witness summons in respect of this witness. It would not be just or reasonable to admit the evidence in the written form to which we have referred, even if we had attached little weight to it as untested evidence. In our view it was also just, reasonable and proportionate to exclude the document containing an account by Ms Johnson. Her evidence and the evidence of Ms Dixon, which it was relied upon to corroborate, was disputed, and in any event it was not clear to us that she was speaking about the same occasion as that complained of by Ms Dixon. We have therefore excluded the statements of Ms McGregor and Ms Johnson from our consideration of this case.

21. At the opening of the hearing the Appellant put in, without objection and with our permission:

Medical report of Dr Trevor Turner, Consultant Psychiatrist, dated 17 May 2006 and addendum letter [A2 pages 80 – 89];

Medical report of Mr Jonathan Johnson, Consultant Orthopaedic Surgeon, dated 19 May 2006 [A2 pages 90-91].

At a later stage of the hearing the Appellant put in, with our permission:

Order of the Interim Orders Panel of the GMC dated (by correction) 16 August 2006 [A2 pages 47a -47b]

22. We therefore had the following documents:

a. Documents Bundle containing

A1: Appellant’s Notice of Appeal and Further and Better Particulars 1-28

A2: Appellant’s documents, correspondence and medical reports 1- 92

R1: Respondent’s response to Notice of Appeal 1-4

R2: Respondent’s documents [pages 1-347] re:

(i) GMC referral;

(ii) Complaints;

(iii) Inappropriate behaviour;

(iv) Breach of conditions agreed by DMG 26 Nov 2004.

R3: Respondent’s supplementary documents: 348 – 360

We also had the following witness statements:

b. Witness statement bundle [pages W 1 – W 316] containing:

i. Appellant’s statements:

Dr Wahab 9 June 2006 with exhibits

David Barr [Clerk to the Kent Local Medical Committee] 2 June 2006

Eila Ragab [Practice Nurse and currently acting Practice Manager at the practice] 5 June 2006

Yvette Champness [finance administrator at the practice] 19 June 2006

Melanie Oliver [patient and sometime computer maintenance contractor and receptionist at the practice] 28 May 2006;

Margaret Tomney [senior receptionist at the practice] 23 May 2006;

Julie Ann Massara [healthcare assistant at the practice] 1 June 2006;

Linda Haynes [Practice Administrator] 18 June 2006;

ii. Respondent’s statements:

Bill Gillespie [Chief Executive of this PCT] 30 June 2006;

Dr Timothy Woodman [Medical Director of this PCT] 30 June 2006, and exhibits;

Tricia Dixon [former Practice Manager of Dr Wahab’s practice] 16 June 2005 and exhibits;

Sian Burns [former Practice Nurse at this practice] 3 May 2002.

In the event the witnesses Linda Haynes and Yvette Champness were not available to be called by the Appellant and we ruled that we should not have regard to their statements, having regard to objections about the controversial aspects of their statements and to the basis of our previous rulings on the admission of evidence from witnesses who were not available to be cross-examined. The evidence of Julie Massara was, by agreement, read without the necessity of calling her.

23. Otherwise we heard evidence from each of the witnesses we have listed above. In light of the nature of the complaints of sexually inappropriate conduct we took all the evidence on oath.

Background

24. The facts set out as background here are largely uncontroversial and in any event we find them to be proved to our satisfaction. Much of the material, particularly in regard to the GMC Performance Assessment and Dr Wahab’s state of health, is of great importance in this case.

25. Dr Wahab qualified as a doctor in 1971 from Alexandria University, Egypt and then came to the United Kingdom where between 1972 and 1976 he undertook a series of post registration jobs in Northern Ireland. He obtained his FRCS and worked as Registrar in orthopaedics and surgery at various hospitals in Scotland, the Midlands, Kent and London before taking up a Consultant post in Saudi Arabia from 1981 to 1984. He then returned to the UK, where he undertook a series of locum Consultant jobs before deciding in 1986 to go into General Practice. In 1989 he joined an established practice at Station Road, Rainham, Kent, run by a Dr Ragab. He then started his own practice from premises in Luton Road, Chatham, Kent and while that practice grew he also went into partnership with a Dr Haroon at the Parkwood Health Centre. Dr Haroon retired in 1992 and that practice was thereafter run solely by Dr Wahab. In 1998 Dr Ragab died and Dr Wahab than took over the Station Road practice as a branch surgery. From 1998 Dr Wahab has therefore operated three practices. His combined list of patients was therefore very large: at the date of the GMC’s Performance Assessment in 2003, when he was described as “a single handed practitioner”, it was 3450 strong, and was estimated by Dr Wahab at around that figure today, during his evidence to us. This compares with a national average of about 1900 per doctor (and a slightly higher average in Medway PCT).

26. The events giving rise to the issues in this appeal cover several years. The parties prepared separate chronologies but we were told that each accepted the accuracy of the other and for convenience we annex the Appellant’s chronology to this decision.

27. In September 2000 Sian Burns started to work for Dr Wahab as a practice nurse. She left in April 2001 and at a later date raised a number of concerns and complaints about Dr Wahab, which ultimately found expression in a statement made on 24 April 2002 to two senior officers of the (then) Health Authority, the predecessor of this PCT [Witness Bundle W 311 – 313]. Some of those matters related to clinical standards. On the basis of this among other evidence (including the complaint of Ms McGregor) the Health Authority referred Dr Wahab to the GMC, which in consequence undertook a Performance Assessment in May 2003. It demonstrated serious deficiencies. In summary, only 4 out of 15 areas of assessment were considered acceptable. Of the rest, 6 were judged unacceptable and 5 gave “cause for concern”. Phase 2 of the assessment, during which his clinical knowledge and his skills were assessed at a full day of testing and simulated surgery, produced results which were significantly below the minimum standard in each of these areas of assessment and were graphically demonstrated by bar charts at Documents bundle R2 pages 76 and 78, and most vividly by a scatter graph at R2, page 85, where he was an “outlier” in the lowest quadrant. We noted that Dr Wahab had almost three weeks’ notice of this second practical phase at the conclusion of the first phase, when he was also advised to contact a local GP tutor and obtain information on OSCE and consulting with simulated patients.

28. It is necessary to give some examples of the nature of the deficiencies identified. Among the “unacceptable” categories were:

a. Record keeping. We note that even the sparse records which were kept “displayed evidence of poor clinical thinking and an inability to consider the wider picture when dealing with individual problems”. There were also cited examples of poor prescribing practice [R2/57-58].

b. Treatment in emergencies. Necessary emergency drugs and resuscitation equipment were not available on site at the Luton Road surgery. The procedures for monitoring the use of such drugs and whether they were in date were absent. There was no locked cupboard. The assessment team were shown a new and unused emergency bag and were not convinced it was not obtained for their benefit. Asked questions at the end of a site tour, Dr Wahab was unable to propose safe and effective emergency measures for a child with fits, or a diabetic patient who had collapsed, or a child with stridor and breathlessness. He was “even” unable to propose an adequate evidence based management plan for eradication of H Pylori infection in a patient suffering from a peptic ulcer, a topic of his own choice [R2/ 60-61]

c. Educational activities. Dr Wahab received a full Postgraduate Education Allowance. However he had “a poor grasp of the learning cycle” and “difficulty in applying gained knowledge”. His selected educational activities were not linked to any kind of learning or development plan. The assessment team found no evidence that he was capable of reflecting on his own acknowledgement of deficiencies [R2/62].

d. Teaching and training. The assessment team failed to find evidence of regular training sessions or multi-disciplinary team building or learning activities [R2/66].

Among the categories of “cause for concern” were:

e. Assessment of patient’s condition. They were particularly concerned about his assessment of patients with a history suggestive of asthma. This encompassed history taking, examination and his “perception of the criteria to diagnose asthma”. The assessment team were “principally concerned that Dr Wahab was unaware of the concept of clinical responsibility and frequently failed to acknowledge or take responsibility for patient care” [R2/51-52].

f. Providing or arranging treatment. There was no evidence of using protocols or evidence based approach. The team was concerned about Dr Wahab’s approach to the management of chronic debilitating problems encountered in general practice; it amounted to an episodic and reactive approach, rather than a planned proactive approach.

g. Communication with patients. He lacked basic communication skills, failed to elucidate his patients’ concerns and conducted doctor-centred consultations which the team was concerned to note did not last longer than 3-4 minutes. He rarely shared management options with his patients or involved them in decision making or explained diagnosis and treatment [R2/67].

29. The Phase 2 practical assessment reinforced these concerns. In simulated surgery (including consultation sessions) Dr Wahab scored 44.25%, well below the minimum standard of 50%, scoring poorly in all domains including data gathering, doctor/patient interaction, explanation, management and anticipatory care. The assessment team considered he displayed a patronising and pejorative attitude. In a knowledge test his score of 62% was well below the minimum acceptable score (69%) and even more below the mesne score of his reference group.

30. In light of Dr Wahab’s replies in evidence, we should refer to his performance on a breast examination, when he failed to follow the brief, did not consider the examination of the other breast and did not recognise a lump in the right axilla.

31. These features are not exhaustive, and are merely illustrative of the range of deficiencies. There were other areas which were deemed acceptable but it is necessary to identify the deficiencies which it was intended should be addressed in the months following.

32. In consequence the GMC prepared a Statement of Requirements [R2/11-12] and on 26 September 2003 Dr Wahab signed his agreement to those requirements which were:

1. To take such action as is necessary to be able to demonstrate, at a further assessment of his performance to be conducted as specified below, an acceptable standard of professional performance,

a. in relation to the following aspects of his performance

i. providing or arranging treatment

ii. communication skills

iii. maintaining performance through self audit

iv. keeping up-to-date

v. record keeping

vi. treatment in emergencies.

2. For the period during which this statement shall have effect, Dr Wahab is required to restrict his professional practice in the following ways:

Dr Wahab should introduce additional medical staff to share his workload. He should install resuscitation equipment and stock emergency drugs at his premises. He should introduce an effective system for checking equipment and drugs. He should introduce a computerised record keeping system.

It was intended that Dr Wahab should be re-assessed at the end of 12 months from signing this document.

33. Dr Woodman undertook monitoring of Dr Wahab’s progress under this GMC regime, and met with him on 29 January 2004, to discuss his progress against the actions required of him. He wrote on 5 February [R2/23] stating that he was “extremely concerned at the small amount of progress that seems to have been made, given that it is now five months since you were sent the Statement of Requirements and four months since you signed it”. He made a number of telling points about the paucity of action to meet the Statement of Requirements and urged Dr Wahab to undertake certain specific changes and to take up an offer of support from a Dr Banner-Martin and to reimburse that doctor’s locum costs. He confirmed that he had raised the issue [of PCT funding for those costs] with the Decision Making Group, as promised, and the view of the group remains unchanged [that is to refuse to fund this cost].

34. Dr Woodman then had to hand over the monitoring role to a Dr Grace whose review of 8 May [R2/ 29 & 30] concluded “Dr Wahab would appear to have taken a considerable number of steps in line with the Statement of Requirements. The Deanery need to be approached to help implement their proposed mentoring along the lines suggested above.” He concluded with some practical suggestions to Dr Wahab. These conclusions were based on observations in a grid of “actions” numbered 1 to 14, a column for date and another for “status”. This last column identified some 5 actions which were completed and others which were “ongoing”. Disappointingly, as it seemed to us, not all the Statement of Requirements were reflected in the “actions”, and some which one would have expected to be capable of almost immediate remedy, such as setting up emergency drugs and date review at the surgeries, were described as “ongoing”, more than 7 months after the Statement had been signed by Dr Wahab.

35. On 21 July 2004 the PCT’s Prescribing Support Technician visited the surgery and found it necessary to alter on the computer a prescription of Methotrexate (which should be taken once a week) for a patient who had had to be treated for bone marrow suppression secondary to an inadvertent overdose of that drug, thought to have been because the patient had taken it daily, and where there was an incidence of the Methotrexate having been “inadvertently restarted”.

36. We were shown various letters in which Dr Wahab asked for help either from the PCT or the Local Medical Committee in recruiting another doctor to assist in the practice (see requirement number 2 at paragraph 32 above), but have not been shown any advertisements or evidence that advertisements were placed. In the event one or two doctors were recruited for short periods or on a part-time basis, but none has stayed the course. Indeed Dr Wahab dismissed a Dr Fairclough who had worked with him for a while, and explained to us that he had done so because that doctor was unwilling or unable to use computer software in the practice.

37. On 17 February 2004 Tricia Dixon was appointed Practice Manager. She had no previous experience as a Practice Manager having previously worked in various administrative roles in Kent Primary Care Agency. She continued in post until she was summarily dismissed by Dr Wahab on 11 February 2005 (letter at page W 309). That dismissal was found by an employment Tribunal to automatically unfair, and compensation was awarded {W 19-20). On 29 November 2004 Ms Dixon had given a statement to the PCT (W303) complaining of two undated incidents occurring between May and September 2004, when (1) Dr Wahab had touched her thigh under her desk and (2) had rubbed her back in the area of her bra strap with his thumb, while offering her a chair.

38. In May 2005 Dr Wahab had his first meeting with a GP trainer, Dr Bannar-Martin, and had a further 6 meetings with him until the last one on 14 July 2004. It is noted in Dr Bannar-Martin’s review document [A2/ 16-20] that Dr Wahab thought these sessions useful. The review describes how the trainer was pointing out areas of weakness and practical steps to improve those, including use of the computer, changes in working practice, and reading up in specific areas. The review adopts a factual, descriptive approach to what had been done at sessions, with a positive tone. What this document does not do, and was not designed to do, is to provide evidence or a measure of any actual improvement achieved. Some comments of concern are “I feel he is so committed to working with patients he is not allowing himself the time to address educational needs”, and in relation to inadequate clinical information in referral letters for a suspected cancer at their fourth meeting, “I was not sure he was going to change his behaviour”.

39. On 30 June 2004 he underwent an operation for carpal tunnel syndrome affecting his left hand [A2/64], and was off work for a while, returning with bandaging for a couple of weeks. He was able to have two further meetings with Dr Bannar-Martin in the first half of July, during which (as he told us in evidence) Dr Wahab did some video sessions of patient contact. However the last dated entry in the “remedial training report” prepared by Dr Bannar-Martin [A2/ 16-20] is 20 July 2004, when he wrote “He will write up his personal learning plan in conjunction with his appraisal. He is still awaiting his first appraisal by the PCT and his PDP will be further formulated through this”. Although Dr Wahab was then at work until September, no further contacts with Dr Bannar-Martin took place. Notwithstanding the reference to an appraisal the only role which the PCT had was to monitor the progress under Statement of Requirements and we are not aware of any monitoring reports after that prepared by Dr Grace in May 2004.

40. On 17 September 2004 Dr Wahab went off work sick with low back pain: a series of medical certificates from his own GP start on that date. He had already (July 2004) been referred for investigations by a Consultant Orthopaedic Surgeon, a Consultant Neurologist, a Consultant General Surgeon. Reports from each of these are in the bundle at A2/ 48 – 70. Dr Wahab suffered spinal stenosis (narrowing of the canal carrying the spinal cord) and some degenerative changes in the low back. He complained of back pain staring in about July, pain in the left buttock radiating to the thigh and behind the knee. He experienced pain which at times disturbed his sleep. He experienced pins and needles in both legs, particularly when sitting for prolonged periods (more than 20 minutes) and this would develop to a left foot drop. Walking co-ordination was difficult [A2/68]. He also had weakness in plantar flexion of the foot and altered sensation.

41. The GMC was due to carry out a repeat Performance Assessment some time after September 2004, but Dr Wahab applied to postpone this in view of his health problems. The GMC appointed an orthopaedic surgeon, Mr Johnson, to examine him, and we have his reports of March 2005 and October 2005 in the bundle [A2/ 72 -79] and most recently of 19 May 2006 [A2/90 -92]. In short Dr Wahab was considered to be unfit to practise as a GP or to undergo Performance Assessment. The May 2006 report suggested nerve root block or epidural treatment which would take 6 to 8 weeks to see if it settled down before considering surgery. It was hoped that he would be fit to undergo Performance Assessment by the end of the year. We understand that Dr Wahab is indeed receiving injections to his back. We were able to observe that although breaks were taken during the hearing for the comfort of the parties, and he was able to sit for periods of about one and a half hours during the hearing, there were times when he was in discomfort and was obliged to get up and walk around from time to time.

42. In November 2004 the PCT gave notice to Dr Wahab that it was considering suspension [R3/348-351] because of the allegations of sexually inappropriate behaviour raised by Tricia Dixon and against the background of earlier complaints including from Ms McGregor which had been referred to the GMC. A hearing took place on 26 November 2004. In the event Dr Wahab was not suspended because the PCT agreed to dispose of the matter by way of undertakings. This solution had attractions to both sides. The PCT was able to restrict Dr Wahab’s access to the surgery premises in a way which would not be possible were he to be suspended, and Dr Wahab avoided the stigma of suspension. The terms were drafted during the meeting. They were confirmed in a letter of 26 November 2004 from Mr Gillespie, Chief Executive of the PCT. The undertakings set out were:

1. If you wish to attend any of your surgeries, this will be between the hours of 9.00 am and 5.00 pm. You will give at least two hours notice to the PCT and will be accompanied to the surgery. The PCT contact is [name and telephone number supplied].

2. During a surgery visit, you can communicate with any member of surgery staff, but if a member of staff so wishes they can be accompanied by the person allocated by the PCT.

3. The person allocated by the PCT will only pass a complaint back to the PCT if one is received from a member of staff.

4. If you wish to contact the surgery by telephone you will do so by an intermediary from the PCT. [contact again supplied].

5. Any practice member of staff can call you if they so wish.

43. We heard evidence from witnesses on both sides that these terms had been the subject of discussion when both sides occasionally retired to consider their own positions, and in particular Mr Barr, the LMC representative for Dr Wahab at the meeting, that condition 4 had been one he had challenged as he regarded it as ridiculous, but that it had been a sticking point on which the PCT insisted.

44. It is common ground that Dr Wahab breached undertaking number 4 on some 20 occasions starting on 30 November 2004 and continuing until 10 January 2005. The schedule of these calls is set out at R2/ 319. It is common ground that a log of these events was kept by Tricia Dixon at the request of the PCT and that Dr Wahab was not “warned off” these unauthorised contacts before the PCT reconvened to consider suspension.

45. On 25 January 2005 Dr Wahab was suspended from the Performers List by the PCT. The grounds for suspension were the allegations of inappropriate sexual conduct and his breach of the undertakings and another matter with which we are not concerned [R2/329-331].

46. Dr Wahab remained suspended until the decision of the PCT to remove him from the Performers List which is the subject of this appeal. In the event, he has not been in clinical practice since September 2004, when he went off sick with his back complaint. He continues to manage the three surgeries within his practice, and indeed has a contractual obligation as a provider of GP services to the PCT. For some two years the medical services have been provided by locum arrangements. We were told that these were now paid for by the PCT. The cost is additional to the remuneration Dr Wahab is entitled to receive.

47. Over and above his back problem Dr Wahab has developed a substantial depressive illness which was diagnosed in May 2006 by Dr Turner (a Consultant Psychiatrist appointed by the GMC to assess his fitness) as a Moderate Depressive Episode, as defined in ICD-10. Core symptoms included depressed mood, loss of interest and enjoyment, reduced energy, increased fatigue, diminished activity, reduced concentration and attention, reduced self-esteem and self-confidence and idea of unworthiness. In Dr Wahab’s case irritability, increased use of alcohol and some cognitive problems (concentration and memory) were prominent. Dr Turner advised that such an individual would usually have considerable difficulty in continuing with social, work or domestic activities. He was prescribed anti-depressant medication. However Dr Turner’s opinion was that “I consider Dr Wahab is currently not fit to practise except under medical supervision, given the nature of his condition and the fact that so far he has only partially responded to appropriate treatment”. In evidence to us Dr Wahab agreed with this assessment. In terms of future management Dr Turner thought that when his mental state had improved sufficiently to enable him to, potentially, return to work, he should be asked to undergo some formal “return to work” training, for example sitting in with other doctors initially, not work in a single handed practice and have a regular available mentor: [see A2/ 80-88]. By a supplementary letter of 24 May [A2/89] Dr Turner expressed the opinion that with continuing treatment and assuming a response to treatment continued, he should be fit to undergo a Performance Assessment in 3 to 6 months. At the date of the hearing we were told that Dr Wahab was still taking anti-depression medication.

Witness evidence

48. We heard from two former employees who were complainants: Ms Tricia Dixon and Ms Sian Burns.

49. Ms Tricia Dixon was his former Practice Director. She alleged that on two occasions between May and September 2004, the precise dates of which she could not recall, Dr Wahab touched her inappropriately. On the first occasion she alleged Dr Wahab had come into her office, which had limited space so that the back of her desk chair was up against the wall. It is a pedestal desk. He leaned over to see her computer screen and put his hands on the desk to support himself. She demonstrated that this involved putting the hands on the edge of the desk with the fingers curled below the desk surface. He then “started to rub his fingers on my thigh”. In further questioning from the Panel she pointed to the outer aspect of her right thigh near the hip, and that it lasted about 5 seconds. She said she was embarrassed and shocked and tried to move as far away as possible within the confines of the space available without causing a scene. Dr Wahab “noticed this and removed his hands”. She decided not to mention this to anyone, and in cross examination she said this was because she was embarrassed, shocked and did not know what to do.

50. The second occasion was also in her office. In cross examination she thought this was a couple of months after the first incident. Dr Wahab “offered my seat” with his hand on the back of the chair. He kept it there when she sat down and rubbed her back, down her bra strap. She was able to lean right forward over her desk to avoid it, and made a face of disgust at her colleague Mrs Johnson who was sitting opposite.

51. Ms Dixon was cross-examined on the basis that neither of these events ever happened, that she had made it up once she realised that another complaint had been made, by reason of having access to confidential files in the surgery, and that she had connived with another complainant. She denied all this. She also denied suggestions that she was a poor and ineffective Practice Manager who had acted as if she “knew it all”. She denied hating Dr Wahab but did not deny sending some text messages to a colleague, in which said she had heard that Dr Wahab had been removed from the list and that she was “so happy”. Various photographs, purporting to show her desk with a different, lower chair were put to her, and it was suggested this was the chair she was using, such that the space between the desk top and her thigh would have made it impossible for Dr Wahab to touch her in the way suggested. She denied this. Her evidence was that she had an adjustable typing chair shown in photographs prepared by the PCT and which elevated her so that the touching was perfectly possible and did in fact happen. When pressed she protested that she loved her job and still saw some of the staff socially, that she “had nothing to gain from making this up”.

52. She was also asked about the telephone calls made to the surgery by Dr Wahab, following the hearing before the PCT at which he had given undertakings, including not to make contact with the surgery by telephone. A log of those calls appears at R2/319 and Ms Dixon told us she was the source of that information. Some of the calls went through to the Reception desk and some of them came through to her. She was aware, she said, that Dr Wahab had promised not to do this, and so had contacted the PCT to alert officers there. She was asked to keep a log of all the telephone contacts, which she did. These calls were about the running of the practice (in particular as the progress of the work on the Quality and Outcome Framework) or to chase up action by the staff. It was not suggested that Dr Wahab was offensive, or threatening, or that he tried to speak about the complaints which had been made, but Ms Dixon found it “awkward” to speak to him in the circumstances which had arisen.

53. Ms Dixon confirmed to the Panel that she had previously worked elsewhere within the PCT but had no qualifications as a Practice Manager and had not previously done that job. She described a very limited process of induction and training.

54. Ms Burns had been Dr Wahab’s practice nurse between September 2000 and April 2001. She did sessions at Luton Road surgery and some at Parkwood. She was dismissed by him but says he gave her no reason for this. Dr Wahab says it was because of her incompetence, her always being late and on occasion not turning up for work. She gave evidence in accordance with her statement at W 311-313, which raised more than a dozen complaints or areas of concern about the way Dr Wahab carried on his clinical practice. These complaints were not made by her until some time after she had left Dr Wahab’s employment, and after she had spoken to other nurse practitioners. Her statement was provided to two officers of the predecessor of this PCT in April 2002. It is short on some detail such as the identities of patients and dates of events. It is not necessary to set out all the allegations in detail. They include the following:

a. Hygiene and sterile practice: that Dr Wahab never washed his hands between examinations of patients; that there was only one wash basin in Luton Road surgery which was in the ground floor toilet area and where Dr Wahab used to see patients if they were not able to climb the stairs to his clinical room; that there was only an unserviced, out of date steriliser at Luton Road, where he used to have his instruments cleaned using kettle cleaner; that the fridge used for storing drugs at Luton Road surgery was not monitored to ensure it did not defrost, which it did from time to time.

b. Prescribing and clinical standards: that Dr Wahab would prescribe two types of drugs, one of which was contraindicated by the other; that he would direct her to remove information leaflets from drugs given to patients; that he would prescribe Kenolog other than during periods of hay fever and fail to advise the patient it was a steroid; that he failed to keep up with new procedures so that he failed to prescribe inhalers for children; that he took longer than necessary, to get patients’ blood pressure under control.

c. Note-keeping and compliance with administration: that he failed to record patient consultations at times (the example in question being a visit by a boy whom Ms Burns had advised should be taken to see the doctor about a lump on his neck); that he had to ask his secretary to remind him what he was referring a particular patient for; that he would circumvent a direction not to take on any more patients by telling the receptionist to hold back the patient’s registration and not to request the patient’s notes until the PCG had reopened his list.

d. Patients: that he would be late for surgery; that he asked women to remove their knickers when providing hormone implants, and once told a 14 year old girl to remove her bra before he sounded her chest.

55. Lastly Ms Burns alleged his attitude to her was too familiar and on occasion offensive. Her statement referred to an occasion when he had told her to stop using “that kind of voice” and when asked what he meant he said “if you don’t stop I will have a hard on which will lift this desk”.

56. In cross-examination Ms Burns denied being persistently late or absent. She denied seeking to keep a medical bag and its contents when her employment came to an end, asserting the bag only had one thing in it (an otoscope) which Dr Wahab had said she could have. She said she was not fuming mad when she was made to hand it back in order to receive her termination cheque, and denied she was seeking to get her own back on the doctor. Ms Burns said it was not nonsense to suggest there was only one sink in Luton Road and that in the toilet area. She was confronted with the suggestion that drug contraindications would have been automatically flagged up by the software used on the Practice computer, but said it may not always have done so because it was not behaving well. She agreed that this was not a dispensing practice (so that there was no opportunity to remove information leaflets from patients’ medication); however she insisted some drugs, such as child immunisations and Kenolog, came direct to the surgery and were given by her as practice nurse. She asserted that others were dispensed by the GP who could then claim some money back. She gave confused answers about which drugs these were and then thought she did not know. She was unable to give any details about the boy with the lump on his neck other than that the mother had confirmed she had taken him to see Dr Wahab, but there was no note on his records when Ms Burns checked. She did not agree that it may be appropriate to remove a bra for a chest examination, but did agree that hormone implants involved an invasive procedure in an area which has first to be sterilised. It was put to her that in these circumstances removal of underwear was appropriate. In denying this she sought to draw a parallel with her own experience of performing ultrasound examination, which is of course a non-invasive procedure.

57. It was put to Ms Burns that there were two fridges at Luton Road surgery, both with temperature monitors, but she insisted there was only one in the basement and that its thermometer was a gift from a drugs rep and not the correct type. She said she would occasionally find it was defrosting. She said she had raised the question of sterilising and kettle cleaner with Dr Wahab but not others.

58. Ms Burns was asked about her professional responsibilities as a registered nurse to question or report practices which adversely affected patients such as the allegations she now made, but said the regulations were changing and she had never come across a situation like this.

59. In face of challenge, she insisted that her recollection of the sexually inappropriate comment was correct, denied she told rude jokes (or could tell a joke) and denied that she had herself made a crude remark about a Muslim patient who had had a smear test to the effect that she was no virgin, or that she had ever said anything in her life about a patient having oral sex. She described herself as a practising Catholic and holding a grudge would be un-Christian. We were asked to note that on at least two occasions during her cross-examination Ms Burns was laughing. The second of these provided her with an opportunity for a sharp comment to Counsel for Dr Wahab.

60. When questioned by the Panel Ms Burns said that on reflection there were two fridges in the Luton Road surgery (one upstairs in Dr Wahab’s room), and that the one downstairs was in her own room. It was used for the immunisations which she administered. She attended Practice Nurse meetings but in her own lunch times. As to the issue of sinks, she recalled that there was an examination room which had a toilet and sink. She denied that (as appeared elsewhere in the documentation) there was a sink in Dr Wahab’s consulting room within a cupboard.

61. Dr Timothy Woodman is the Medical Director of the PCT. He adopted the contents of his witness statement with exhibits [W 122- 224], including the involvement of the PCT and himself as set out in the history under the heading “background” above. He explained that Dr Wahab had remained as the contractor responsible for providing the service to the patients on his list notwithstanding his suspension. He continued to receive the full practice income.

62. On the question of the number of complaints received by the PCT about Dr Wahab [16 listed at R2/ 186 with the supporting relevant documentation behind that at pp 187-286] Dr Woodman said that they were running at about 2 to 3 times what he would have expected for the list size. He derived this from a comparison with quarterly returns of complaints which GP practices were required to submit. He was concerned that the history of matters given by Dr Wahab to a psychiatrist (Dr Mikhail), namely that he had no patient complaints in the last 12 months, was in his view contradicted by evidence he had about complaints. He pointed to one in that period, in the schedule at page 186.

63. Dr Woodman was asked about the position created by Dr Wahab’s own health problems, and the current risk to patients. His view was that the risks are connected with Dr Wahab’s failure to demonstrate he has raised his level of performance to a level where he could pass the Performance Assessment. He reviewed the period of time which has elapsed since the GMC’s Performance Assessment and the lack of steps to remedy matters, including the failure to undertake refresher courses, attend lectures, or continue his work with Dr Banner-Martin which had stopped in July 2004, some 6 months before the PCT ultimately decided to suspend him. He did not judge Dr Wahab recognised the failures and their relationship to Good Medical Practice [the GMC code for doctors]. Nor did he consider from the information he had that Dr Wahab’s clinical performance was up to the standard which should be expected of a GP on the Performers’ List. Furthermore, with the psychiatric diagnosis he has, he could no regard him as capable of carrying out his clinical or managerial functions and would find it impossible to contemplate what conditions could be framed in order to meet his problems and make it safe or acceptable to carry out any of these functions. In answer to questions from the Panel he said that if he remained psychiatrically unfit for a further 6 months from now (as contemplated by the most recent psychiatric report) then no condition could be framed which could allow him safely to carry out even his administrative role. The implications for the PCT were that they would have to continue to fund locums, placing unreasonable strains on its budget and there would be also concern about continuity of clinical care.

64. In cross-examination Dr Woodman accepted that Dr Wahab was ill, but did not accept it was entirely reactive to the fact of his suspension and subsequent removal decision. He had first expressed concern about the work load of Dr Wahab’s patient list 5 years ago. He detailed various attempts he had made to persuade Dr Wahab to shed part of his list, by closing one of the three practice surgeries, and to take on more medical and other practice staff. From an early stage in his dealings he had taken the view that Dr Wahab had very little insight into his deficiencies and what must be done to address them. He was challenged about the degree of support and guidance given to Dr Wahab by the PCT and said he had no given up on Dr Wahab in the period following the Performance Assessment, but his role was to monitor Dr Wahab, not to mentor him. He had to walk a fine line as Medical Director, between supporting him and condoning poor performance. He confirmed that the patient complaints stretched over a period of 10 years and had not intended to mislead in suggesting the period was 2 – 3 years (although our note of his evidence in chief does not suggest he did).

65. Dr Woodman said that while he believed Dr Wahab’s ill health there were elements within the Statement of Requirements which could and should have been complied with. In later re-examination he pointed to the medical report of Mr Johnson (March 2005) which identified matters which Dr Wahab was fit and able to do, as well as some he was not. However he pointed out that at the time of the PCT’s decision to remove Dr Wahab, they had no evidence about his poor mental health: what they did know about was a carpal tunnel operation, back problems, and neurological problems with his feet, associated with diabetes.

66. Dr Woodman was challenged about the PCT’s failure to provide funding towards retraining by Dr Wahab. He said his PCT had not previously had to consider such a request, as other GP’s kept up to date and provided their own continuing education from their remuneration, and indeed Dr Wahab had drawn the full Post Graduate Education Allowance within his remuneration. There was no statutory obligation to provide additional funds, and the PCT had not felt it could provide extra funding which was not available to other GP’s on its List. He said that he had discussed with Dr Wahab getting another partner, but that Dr Wahab’s view was that the PCT should pay for another employed doctor, and they had refused. On the question of other staff, he said that on a number of occasions Dr Wahab had employed staff first without asking the PCT to approve funding, which was not the way it should be done.

67. Dr Woodman was asked about the meeting in November 2004 when Dr Wahab entered into undertakings in lieu of a suspension. He had been aware that Dr Wahab had subsequently made telephone calls to the surgery, and that a log was being kept, which he denied was to collect information for use against him, but to ensure that the PCT had the full facts available because it had warned Dr Wahab they would revisit the question of suspension.

68. Dr Wahab’s failure or inability to comply with undertakings operated on Dr Woodman’s mind when he was asked about contingent removal: he said that placed an onus on the practitioner to comply and he had admitted not complying in respect of this matter.

69. It was put to him (we understood this proposal had not previously been made) that Dr Wahab would consider closure of the Station Road surgery. He said that would help reduce his list size but previous discussions had been around Luton Road, which had more patients. In later re-examination on steps taken to introduce additional medical staff as stipulated in the Statement of Requirements, he said no progress had been made in recruiting a new partner. One or two employed doctors had successively worked within the practice, but in February 2005 Dr Wahab had dismissed his assistant Dr Fairclough.

70. Asked by the Panel about the rather more favourable progress report made by Dr Grace, he pointed out that only 5 of 14 self-set tasks had been completed according to this report, and the 9 days Dr Wahab had spent on education would compare with about 5 which any GP would spend, without the impetus of a failed Performance Assessment. He also told us that in his view Dr Wahab had still not provided any evidence of compliance with the Statement of Requirements. He could have attended lectures (including on communication skills), educated himself on treatment in emergencies, advertised for staff or interviewed or engaged a locum notwithstanding his ill health.

71. Mr Bill Gillespie, Chief Executive of the PCT, adopted his witness statement [W113- 119 plus exhibit] and gave further evidence about the policy of the PCT in providing support by way of finance or staff support.

72. He addressed the question of efficiency, which had a number of aspects. Given the serious nature of the deficiencies identified in the Performance Assessment his concern was about not only the rate of subsequent progress, but also the level of progress. He regarded the report of Dr Bannar Martin as consistent with the findings of the GMC. He referred to some of the points of concern contained within the report and summarised above under the heading “background”. He said that the panel (of which he was a member) which made the decision to remove Dr Wahab from the Performers List, did not look at the GMC requirements in isolation, but also looked at the degree of confidence which they could have that Dr Wahab would do what he said he would do. The breach of undertakings in November 2004 was significant in this respect. He had no doubt Dr Wahab had understood the undertakings required of him. He said they also took into account that Dr Wahab had started by rebutting all of Ms Burns’ criticisms and later accepted some of them.

73. Mr Gillespie explained that their judgement on Dr Wahab’s reliability and trust also impinged on their view about his suitability to remain on the Performers’ List. He said they had considered whether the sexualised conduct (which they found proved) was so serious as to justify removal, was a decision not come to lightly.

74. He was cross-examined in similar terms to Dr Woodman. He accepted that the time prescribed by the GMC for compliance with the Statement of Requirements had not technically expired, having been extended by them on several occasions on account of Dr Wahab’s ill health, but that did not affect his judgement on the underlying substance. He was asked if it would have made a difference to his decision if he had known of the psychiatric diagnosis, and he said not necessarily. In any event at the removal hearing Dr Wahab was asked about his health and specifically said he had no health issues. Contingent removal had been discussed in the context of the efficiency case but rejected when they looked at his progress against the nature of the requirements, and his trustworthiness.

75. Dealing in some detail with the meeting held in November 2004 to consider suspension, he explained that the attraction to the PCT of undertakings rather than suspension was that the PCT had some control over the doctor and his practice which they would not have during a period of suspension. He said the undertakings had been drafted then and there, and that Dr Wahab’s representative had objected to the very undertaking about telephone contact which he later breached. The PCT had made it clear in reply that they perceived a risk to his staff who had complained and a need for their protection. Dr Wahab was present and heard the exchange, and in addition the letter setting out the terms was received by him a day or two later. It stressed the importance of compliance.

76. Following that breach of undertakings, Dr Wahab had been suspended in January 2005, and the PCT had since then been funding locums to operate the clinical side of the practice. The total figure including Dr Wahab’s continuing contractual payments was between £300,000 and £400,000.

77. Dr Wahab gave evidence, adopting his witness statement [W 1 – 16 plus exhibits]. This included denials of the allegations of sexually inappropriate conduct, an account of the Performance Assessment and what he had done to implement the Statement of Requirements, and his account of his dealings with the PCT, which it is not necessary to repeat here. He also asserted that the medical bag provided by him for Ms Burns during her employment contained a blood pressure machine, stethoscope, measuring tape, peak flow meter, otoscope and other items, and that he had required its return when her employment was terminated.

78. He described his back pain (attributable to spinal stenosis) affecting the nerves of the spine, and was undergoing a course of epidural injections to block the pain. Sitting or walking for too long caused the nerve to become trapped. His psychiatric problems came on (he told us) after his suspension in January 2005. He was low, unable to get to sleep, woke early, and was unmotivated and lost interest in life. He put on a lot of weight which did not help. He felt worthless. He said since seeing Dr Mikhail he had been taking anti-depressants which helped in that he could now sleep but the other symptoms were still present.

79. Dr Wahab was asked about the allegations of Ms Burns and he denied them, stating also that he had a sink in his own consulting room at Luton Road, in the cupboard, and there was also one in the kitchen area and one in the nurses’ room. These had been seen by the PCT Panel when its members visited his surgery [this was not challenged]. The hot air steriliser at Luton Road had stopped being used years ago. The sterilising was done at Parkwood Health Centre. He developed the explanations which had been put to Ms Burns in cross examination.

80. He denied rubbing his fingers against Ms Dixon’s thigh, alleged that she habitually sat in a different, lower chair from that shown in a photograph, and that it was not possible to support himself with his hands on the edge of the desk and perform the touching he was alleged to have done, or he would have become insecure and probably fallen. He performed a demonstration for us of how he leaned on a desk and how difficult it might be to reach the thigh of a person seated at it. He also told us that he had dismissed Ms Dixon because her performance was not good – she had no experience in a GP surgery and no idea what goes on. He suggested that the allegation she had made against him had no bearing on her dismissal because he knew that her lies would get found out.

81. Turning to the Statement of Requirements, Dr Wahab said he did not get going straight away in complying with them because he wrote to the Dean of Post Graduate Education and asked the LMC for help. The Dean suggested Dr Bannar Martin as a tutor but that doctor refused to be paid by Dr Wahab directly. He said it was not ethical because at times he may need to be critical of Dr Wahab. He expected the PCT to pay him. A formula was eventually worked out by which Dr Wahab paid him via the LMC but this took some time.

82. After Dr Wahab had gone off sick, he said that it was not possible to do anything towards complying with the Statement of Requirements. In his view all the requirements necessitated patient contact. The last contact with Dr Bannar Martin had been videoing patient consultations. He had been criticised that the consultation was doctor centred [a criticism originally made in the Performance Assessment] and he wanted to carry on with learning from this process. The PCT had not helped at all.

83. As to the undertakings given in November 2004, Dr Wahab said he was not in good health at that meeting, was in pain and could hardly walk or sit, and could not concentrate. He said he was loaded with pain killers and muscle relaxants. He could not wait to get out and was upset. He thought, looking back, that he was not fit to attend the meeting. He denied being aware of the ban on making telephone calls direct to the practice premises. He accepted he had made the calls listed in the schedule at page 319 and was sorry it had happened. He said he did not realise he should not make the calls “because I was accused of touching up staff”. We noted that he said “the PCT has no responsibility to the staff only to the patients and public”. He felt he had to make sure locums had arrived and that there were no problems.

84. He said he had not fully understood the conditions but he was trustworthy. A fresh start was needed and he had no problem working with Dr Woodman: this was a reference to Dr Woodman’s loss of trust and confidence in him. His plans (if he were restored to the Performers’ List) was to get back to work and finish compliance with the requirements, attend a GMC reassessment of performance, and get back to serve his patients. He said an improvement in his health should not take too long: the biggest hurdle in his depression was his suspension, and if he were restored, he should recover quickly. He proposed to carry on where he left off with Dr Bannar- Martin.

85. No document or other evidence was produced to us indicating what Dr Bannar- Martin’s view of this might be.

86. On the issue of recruiting further medical help in his practice, he said he had tried since the Statement of Requirements was imposed, but has had difficulty in getting anyone interested. He explained the lack of financial inducement to recruit a partner and said most people preferred, under the new contractual arrangements, to employ a salaried partner. He had put several adverts in medical journals without success. We were no shown any evidence of these advertisements. However he had received applications from two Polish doctors only last month, on which he could take no action because this hearing was pending. He had asked his secretary to see if they were still available.

87. In cross examination Dr Wahab denied that a locum whom he had described as interested in joining his practice had in fact accepted a post in a neighbouring practice. He had dismissed an assistant doctor, Dr Fairclough, summarily because he was unwilling to adopt computerised record keeping. The dismissals of Dr Fairclough and his Practice Manager Ms Dixon were both during the period when he was subject to the Statement of Requirements to introduce additional medical staff to share the workload.

88. Dr Wahab agreed that between August 2003 (the Statement of Requirements) and June 2004 he was not off work either because of ill health or suspension. Then he was off sick following his carpal tunnel operation for about a month. He then remained at work until he went off sick with back pain on 17 September 2004.

89. As to his payment and resources, Dr Wahab said his 3500 generated between £16,000 and £17,000 each month, so that he received at least £192,000 pa from which to run the practice as a whole and pay himself. We observed that if this is correct the difference between that figure and the £300 - £400,000 which is the current cost to the PCT is the extra cost of maintaining locums to run his practice under the current regime.

90. Questioned about what the impact of his psychiatric condition might be on his return to work, he said he agreed with Dr Turner that he needed to be under the care of a doctor. He had only partially responded to treatment. He accepted Dr Turner’s opinion and prognosis [see paragraph 47 above]. He therefore agreed that the earliest he would be fit enough to undergo a performance assessment was 3 months and that even when he went back to work he would require medical supervision and would not be able to work in a single handed practice. Although he said he did not want to work in such a practice, he agreed that so far he had not been able to achieve the recruitment of another doctor.

91. Dr Wahab gave two reasons for failing to reduce his list size. The first was the difficulty in recruiting a doctor to work at Luton Road (the branch which the PCT was pressing him to offload). The second was that both under the old contract and under the new contract, a reduction in the size of his patient list would affect his remuneration. Asked about the novel suggestion made in the course of this hearing that he could close Station Road, he suggested that the patients could, if they wished, transfer to his list at Parkwood Health Centre. He seemed not to appreciate that this would defeat the object to distribute the patients among more doctors.

92. Dr Wahab was asked about his explanation in his witness statement (para 43) of his unpreparedness for the Performance Assessment, namely that he was not aware of what the procedure would entail, and that he had assumed it would just involve him having a discussion with a few colleagues. He agreed that in fact the MDU had told him what it would entail, but he did not appreciate how detailed. It was in fact in two parts. He said that after Phase 1, when the GMC spent 3 days analysing his practice, he still did not realise. He then had two and a half weeks between that and the exam. He did not know anyone who had been through it. He asked the MSU but their advice was just to go along and do what he normally did every day. It was not just a 2 hour exam as he expected, but a whole day including simulated surgery and patient examination. Asked to explain his unacceptable performance in 6 out of 15 areas, he said he had a bad day. He drew a parallel with driving, suggesting that if you have been driving safely for years you would probably fail a test but would still be driving. He agreed that the GMC identified serious deficiencies in his practice and he had “no other option” than to consider their criticisms and try to act on them.

93. However, when he was taken to various specific adverse findings by the GMC, to our surprise he took issue with them. At page 53 para 4 he insisted that his Surgery had protocols and guidelines, but the assessors could not find them on his desk immediately. Nor have we seen them. At page 57 paragraph 5 (record keeping) he said “I don’t accept that”. At paragraph 6 on that page (poor prescribing practice shown in his records) he said a lot of GP’s do that if they are rushed. But now he had learned from this and everything is written on the computer after a consultation. He agreed that poor note keeping was an allegation made against him by Ms Burns and that she was right about that. But he denied the rest of her allegations.

94. Mr Hyam took Dr Wahab to a number of the other adverse findings of the Performance Assessment. He said he had taken the point that the Assessment team found no evidence that he was capable of reflecting on his deficiencies, and that despite receiving the full education award he failed to understand the concept of what he should focus on. He countered the criticism about failure in teaching and training by saying that his was not a teaching practice. He had taught Ms Dixon and Ms Burns on the job and when they suggested they had received very little training from him, or at all, they were lying. He agreed that Margaret Tomney had told the assessors there were no practice meetings for her to attend, but that had now been remedied. Under the heading “getting on with colleagues” Ms McGregor had left, Ms Dixon, Ms Burns and Dr Fairclough had been sacked and Dr Aragonis, who came as a locum, had left and taken a post in the Maidstone area. Dr Wahab acknowledged that in the Assessment he was described as displaying a patronising and pejorative attitude, but he thought in general he was not like that and the fact that he had dismissed three people since the Performance Assessment was par for the course in a busy practice.

95. Dr Wahab was also asked about other findings which mirrored allegations raised by Ms Burns. He was reminded that he had said she was right about only one thing and that was poor note keeping. His attention was then drawn to the Performance Assessment’s adverse finding on hygiene (page 92 item 8), which he explained on the basis that he was examining a mannequin and not a human. Then he was reminded that the Assessors found his knowledge of drug interactions a cause of concern. Nevertheless he said Ms Burns had no knowledge of medication. Next he was reminded that she had alleged poor ability to control blood pressure, and that the Assessors had found [R2/150] that his answers as to defining hypertension and how he would make a decision to treat were unacceptable. Dr Wahab responded that the Assessor’s judgement was wrong and he had completely misunderstood Dr Wahab. However the same point was addressed by a different Assessor at page 157 and also found to be unacceptable. Dr Wahab said this was because of poor communication between him and the examiner. He said that the QOF report shows his patients get good blood pressure care.

96. Dr Wahab was asked about the incident of the boy who attended with a lump on his neck. He accepted he might have failed to make a note of this. However his attention was drawn to an examination for a lump in the Performance Assessment, when he performed a left breast examination [R2/93] on a mannequin, and found a lump in the left breast but did not consider an examination of the other breast, and did not recognise a lump in the right axilla. Dr Wahab explained this as follows (and he was given an opportunity to consider whether he wished this to be recorded as his answer): “I was asked to examine the breast so I did so. The axilla is a different part. That does not mean that I failed to examine the breast.”

97. Lastly he was reminded of Ms Burns allegation that he gave Ventolin syrup when it was not appropriate for children with asthma, and taken to the finding at R2/151 of the Assessment where his knowledge of how to diagnose asthma was found to be unacceptable.

98. Dr Wahab said that Mr Hyam “could not tie the fact that she is right about a few things to saying she is right about everything”. He denied the inappropriate language alleged by Ms Burns.

99. Dr Wahab was cross-examined about the number of patient complaints against him, and reckoned that his average – about 1.6 per annum, was not excessive.

100. He accepted, as is the case, that he had agreed the Statement of Requirements in September 2003 but by the time of Dr Woodman’s review [R2/23-24] hardly any progress had been made to comply with it. He said this was because of the delay in negotiating the terms on which his mentor was to be paid. He said “Nothing got done until May 2004 because my hands were tied”. Further, he said that by the time of the later report from Dr Grace [R2/29] he had completed 5 out of 14 actions there described and many of the rest were described as “ongoing”. As to the report made by Dr Bannar-Martin following their initial meeting [R2/16] he agreed that he provided the information as to what steps had been taken by him.

101. Dr Wahab explained his failure to reduce the number of surgeries he operated by saying he had sought the closure of his Luton Road surgery but was told it was not feasible for about 1000 patients to be absorbed by neighbouring practices.

102. Dr Wahab agreed that (some three years after the Statement of Requirements) he has still got no partner, operates the practice through locums managed by him but paid for by the PCT, and to the extent that he is running the administrative side of the practice is doing so at a time when he is mentally unwell and not fit to practise. He told us that his own GP and Consultant had advised him it would be therapeutic for him to get up and dress and go to work.

103. In answer to questions about the circumstances of his contact with Dr Bannar- Martin ending, he said he had ended meetings on 7 July 2004, and (contrary to what Dr Woodman had told us was his understanding of no contacts for 6 months) that Dr Bannar-Martin was in touch with him about a month ago. He told us Dr Bannar-Martin had not felt he could proceed with further training unless there is a change in his mental health and Dr Wahab was able to resume clinical practice. Dr Wahab himself felt that if were able to resume work his mental health would improve.

104. Pressed on his understanding of the undertakings of November 2004 which he had breached, Dr Wahab continued to assert that he had felt forced to accept them as an alternative to suspension, that he had not understood himself to be banned from telephone contact with the surgery staff, and did not recognise he was doing wrong by telephoning them. He agreed that the words of paragraph 4 of the letter of confirmation of the undertakings sent to him by the PCT immediately after the hearing were clear. He could not remember whether he read that letter. He agreed the breaches started only four days after the letter was sent to him. He said he had to make the telephone calls in order to run the practices and in any event did not understand he had agreed not to do so.

105. Dr Wahab was taken to his various inconsistencies in his representations to the GMC and the PCT. He agreed that in November 2005 he was unable to attend a hearing of the GMC Interim Orders Panel because of ill health whereas in the same month he told a hearing of the PCT which was considering his removal that he was ready to come back to work, explaining that he thought if he could get back to work he could get on with his training again “and everything can be forgotten”.

106. Dr Wahab agreed that the history recited in the psychiatric report by Dr Mikhail [W 56] and derived from him was not accurate in a number of respects, including the suggestion that he had been suspended, and an incomplete account of the conditions imposed on him by the GMC which was “my version of the facts”. He explained other alleged misleading statements on the basis that Ms Dixon’s complaint to the PCT was not proved, and that when he said he had had no other complaints he was referring to allegations of sexual harassment.

107. When questioned by the Panel Dr Wahab said that at the time of these events the patient records were partly manual and partly computerised. There had been 8 patient complaints received in the last year and in his view this was because the doctors were all locums in the practice. He only carried out sterilisation of instruments at Parkwood Surgery, where there is an autoclave, and where all minor surgery is done. The old fashioned (and unmaintained) steriliser at Luton Road was only left there unused as it was a big heavy thing to take away. As to the fridges the primary responsibility for checking the temperature and expiry date was that of the practice nurse, and also himself.

108. He was asked about the information provided to him by the GMC and others as to what was involved in a Performance Assessment, in light of his evidence about being taken by surprise as to what was required of him. His attention was drawn to page R2/73, and he was asked whether he recalled seeing other standard forms of preparatory information issued by the GMC. He could not remember being given that information. Asked about the staff he had criticised or dismissed for lack of competence (such as Ms Burns and Ms Dixon) Dr Wahab said their backgrounds were not in GP Practice and he had trained most of his staff himself.

109. Asked whether it would not have been possible to do any of the things set out at (iv) of the Statement of Requirements, while he was off sick, he said he had read journals and attended some meetings. He estimated 10 hours per week reading journals and going on to the internet, but he did not attend a lot of meetings, as he was embarrassed to meet colleagues. He looked at the websites of NICE and the FHSAA and PCT and read magazines.

110. However, when asked what the current NICE guidelines were about the use of Methatrexate (a matter on which the Performance Assessors had criticised him) he said he had not looked at it recently and so far as he knew instruction on dosages should come in the letter from the prescribing physician at the hospital. Dr Wahab said he had got ill before a further appraisal was done.

111. When asked what was his proposal about return to work in light of the comment in his own psychiatrist’s report about the need for supervision when he did so, he said that he did not have the name of a doctor in mind and rather supposed this would mean occasional contacts with a supervisor such as Dr Bannar-Martin, rather than someone sitting in with him during consultations or having daily contact. He did not know what would be the reaction of a patient attending for consultation with him, were the patient to know of his psychiatric diagnosis and prognosis.

112. Mr David Barr [Clerk to the Kent Local Medical Committee] was sworn and identified his signature on his witness statement. He thought the principal problem in the way of compliance with the Statement of Requirements was the PCT’s refusal to provide financial support. However he agreed that the PCT had a wide discretion and was not acting unlawfully. He said “when it came to the crunch [Dr Wahab] was able to afford and did pay for a mentor, but it took some time and there was some difficulty”. He was not aware of the current medical evidence as to Dr Wahab’s psychiatric condition. While not purporting to give a medical opinion he said it was obvious to him at times that Dr Wahab did have health problems, although he related these to his back and limb problems which caused him pain and discomfort. As to the “suspension” hearing of November 2004 before the PCT, it was quite lengthy, but he did not consider that Dr Wahab was unfit to give proper instructions to him as his representative. He thought it might have been him who suggested undertakings as an alternative to suspension. He understood the serious nature of undertakings and the possible consequences of non-compliance. He explained that a document was drawn up containing the undertakings the PCT felt they required. He explained them to Dr Wahab and thought they were, in part, so onerous that it might be better to be suspended, but Dr Wahab agreed to them. Mr Barr had particularly challenged the need for an undertaking not to contact staff by telephone, as he thought it very onerous and unreasonable and indeed unnecessary as the mischief related to allegations of sexually inappropriate behaviour made by some specific members of staff but no other member of staff had complained. He said “I thought it was ludicrous because staff had been there in the main for a considerable number of years”.

113. Mr Barr was asked about the dismissal of Ms Dixon. He said that he advised Dr Wahab to ensure he knew that legislation was in place concerning the dismissal of employees who were “whistle blowers” as he was aware that she had made a complaint of impropriety against him. He was aware Dr Wahab had been found to have dismissed her unfairly but did not know the detail of the findings.

114. Mr Barr told us he had received an email from Dr Bannar-Martin in the last week which confirmed he was willing to continue supervising Dr Wahab, but had also told him on the telephone that undertaking remedial work is difficult where the person is not able to undertake clinical work. He also told the Panel that he could not point to any occasions when there had been contacts between Dr Wahab and Dr Bannar-Martin between July 2004 and until just before this hearing, when there had been a flurry of activity. Ongoing work was not going to be a practical proposition.

115. Mr Barr had encountered cases where practitioners had had conditions under which they could not work on their own and they had worked effectively.

116. Mrs Eila Ragab was sworn. She is a Practice Nurse at Dr Wahab’s practice and in recent times has also acted as Practice Manager, for the lack of a recruit following the sacking of Ms Dixon. She is the widow of Dr Wahab’s former partner and a loyal and diligent employee. She adopted the content of her witness statement. This included an account of her efforts to retrieve from Ms Burns the medical bag and its contents on the termination of her employment, and corroborated Dr Wahab’s account of the several items of equipment it contained. She was not challenged about this. She said Ms Burns had become angry and abusive when she would not hand over her final pay cheque unless and until the bag and equipment were returned.

117. Mrs Ragab was adamant that the chair which Ms Dixon used to use was not the swivelling desk chair shown in the photographs prepared by the PCT, but was the fixed and slightly lower chair shown in photographs submitted on behalf of the Appellant. Rather to our surprise she said she witnessed “the first occasion” as she had been following Dr Wahab into the room to speak to him about something and was standing in the doorway. This was during the last week but one that Dr Wahab was in the practice, prior to his sick leave. She said Dr Wahab said he needed to see Ms Dixon because she had not finished something. He leaned over her desk. She saw Ms Dixon lean forward and make faces at Shona Johnson (who sat opposite her). She deduced this was because Ms Dixon did not like Dr Wahab: that was the first time she had thought this was so. She saw no impropriety. She had no idea of anyone’s fingers being used. Her account of this incident did not appear in her witness statement, which was confined to a statement that she did not believe Dr Wahab to be capable of sexual harassment.

118. Mrs Ragab conceded that Ms Dixon brought out the worst in her and she did not get on with her. She said in September they were arguing and it was intolerable working there. The reason Ms Dixon was dismissed was that Mrs Ragab had said to Dr Wahab either Ms Dixon went, or she did. She was proud of the fact that after Ms Dixon’s departure she managed to “salvage” 60 points under the Quality Outcomes Framework which is key to the remuneration of the practice in the next year.

119. She described herself as Dr Wahab’s confidante. However, Dr Wahab had (she said) not shared with her the precise details of the requirements imposed on him by the GMC. She had not been present at any training sessions since July 2004.

120. Mrs Ragab said she knew that Dr Wahab had given undertakings in November 2004 and was “aware that there was an undertaking not to telephone the practice directly”. It is difficult to imagine where this knowledge could have come from, other than Dr Wahab. She said the staff did not want the requirement that they be escorted when meeting him and held a meeting and signed a disclaimer to that effect.

121. Ms Margaret Tomney was sworn. She has been the receptionist at the Luton Road branch surgery since 1997, but had stopped work in the last month (not because of any concerns with Dr Wahab). Her statement described Sian Burns as a strange character, given to crude sexual comments. She described a deterioration in the working relationship between Ms Burns and Dr Wahab. She was also aware of a personality clash between Ms Dixon (whom she described as a strong character) and Dr Wahab. Dr Wahab had always behaved appropriately towards her and to other members of the staff, so far as she had seen.

122. When cross-examined she said that there had been pressure on the patient lists of their own practice because neighbouring lists were closed and they had eventually asked the PCT to close their own list, but there was still an influx of patients. She had never been aware of any plan to close the Luton Road surgery, or of Dr Wahab requesting the PCT to allow him to do so. She confirmed the presence of sinks at the Luton Road surgery.

123. Ms Melanie Oliver was sworn. She was a patient of the practice with computer expertise who had taken on work on the practice computers on an ad hoc basis, and subsequently worked for a short time as an evening receptionist at the Luton Road surgery. Her statement spoke highly of Dr Wahab’s ability as a doctor who took time to listen, and talk to her or her family when they were patients, and believed he had good relations with his patients.

124. In cross examination she explained she had started working on the computers in 2001 but not for the last two years on account of looking after her own family members during illness. She had worked intermittently for Dr Wahab until he became ill.

125. Ms Oliver told the Panel that Dr Wahab had a computer server and a professional software provider called SETEC. She was not a software specialist and could not help about the way in which medication was dealt with on the computer. She had had a hormone implant herself and Ms Burns was present when Dr Wahab dealt with this.

126. Submissions were made by the parties both in brief written form and orally. They largely followed the arguments made in the opening notes at the outset of the hearing. Mr Hyam on behalf of the PCT submitted that Dr Wahab ought to be removed both on grounds of suitability and efficiency. There was some cross-over, in particular as to factors giving rise to the PCT’s loss of trust and confidence in Dr Wahab. Mr Hyam characterised the progress made by Dr Wahab in the first few months after agreeing to the Statement of Requirements as “pretty much non-existent” and took us through aspects of the follow-up supervision by Dr Woodman, Dr Grace and Dr Bannar-Martin which cast doubt on how much real progress had been made thereafter and until Dr Wahab fell ill. As to the suggestion that his illness prevented him doing anything towards compliance with the Statement of Requirements he submitted that his bad back, leg and foot problems should not have inhibited him from getting his knowledge up to date. In this regard he characterised the answers given by Dr Wahab to questions asked on behalf of the Panel by Dr Sharma as “revealing”, in that he was unaware of up-to-date information about treatment and prescribing, for example of Methatrexate, despite asserting that he spent 10 hours per week (1500 hours in the last 2 ½ years) on updating himself online or by reading.

127. Mr Hyam invited us to find that Dr Wahab knew very well he had entered into an undertaking not to contact his surgery staff directly by telephone, but had deliberately chosen to ignore it. He pointed to the evidence of Dr Wahab and of his LMC representative Mr Barr that the undertakings were discussed in detail and objection was taken to this very one by Mr Barr, and the draft was developed at the hearing in November 2004. He also pointed to the fact that Dr Wahab at times complied with other parts of the undertakings, for example by contacting PCT staff to arrange accompanied visits to the surgery.

128. As to the allegations of sexually inappropriate conduct Mr Hyam invited us to accept Ms Dixon as an impressive witness who told the truth. He referred to the evidence of Mrs Ragab as capable of corroborating her evidence in part. He invited us to accept the accuracy of Ms Burns’ allegations about the way he ran his practice, relying on the fact that in cross-examination Dr Wahab had been forced to admit that many of her criticisms were correct or born out by the Performance Assessment.

129. Mr Hyam alluded to the present situation under which the practice and its patients were in limbo, without the benefit of a regular named doctor for two years or so, serviced by a series of locums under arrangements which had attracted 8 patient complaints over the last year, which was a high number and some evidence of the prejudice to the efficiency of the services. He expressed concern about the additional cost to the PCT if this arrangement were to persist. In round figures he suggested that the evidence showed about £200,000 per annum was paid to Dr Wahab under the terms of his contract, but the locum GP’s were paid for by the PCT making a total expenditure in the region of £300 - £400,000 per annum, to the detriment of patient care elsewhere.

130. In this context it was clear, on the medical evidence, that Dr Wahab would not be psychiatrically fit for at least another 3 – 6 months, and then would be fit to return only with the benefit of supervision, and would have to have a further period of training during which he would need to improve his abilities and pass a further Performance Assessment. The PCT was not prepared to countenance the imposition of conditions to permit Dr Wahab to remain on the Performers’ List. They could not identify any conditions which would be workable. Nor had any proposed conditions been put to the PCT witnesses. They had no confidence in his insight into his own deficiencies, his ability or willingness to comply with conditions (based on their experience of his compliance with the Statement of Requirements and the undertakings of November 2004). There had (as he submitted) been a breakdown in relations with the PCT and its key personnel who would have to deal with Dr Wahab. He submitted that this was not putting a gun to his head, but reflected an erosion of trust and confidence. So far as the PCT were concerned trust (or the lack of it) was a key feature of the case.

131. Mr Peacock, for the Appellant, suggested that the PCT’s emphasis had shifted somewhat in the direction of insight. He submitted that its case on efficiency was based on non-compliance with GMC requirements, and we should not dwell on the original complaints giving rise to those requirements, as they were matters of background. Dr Wahab’s compliance had been hampered by the PCT’s refusal to fund him (we understood this to be a reference to the payments for Dr Bannar-Martin or similar supervisor). You could not turn on a retraining programme overnight and it was appropriate to seek Deanery advice about how to go about it. The delay in implementing a practical programme after the Statement of Requirements was therefore understandable. He took us through the reports of Drs Grace and Bannar-Martin and argued that we were not at the end point where improvement to an acceptable standard could now be demonstrated but he relied on that evidence to show Dr Wahab’s engagement with the process.

132. He submitted that the process had subsequently been frustrated by Dr Wahab’s ill health, which the PCT had accepted as genuine, as should we. Mr Peacock acknowledged there was a continuing obligation to comply with the Statement of Requirements, but the GMC had successively renewed the terms of his Interim Order with the result that the date for a further Performance Assessment was postponed. The GMC could have relied on breaches of conditions in failing to provide continuing reports, but had not done so. Dr Wahab’s suspension from the List on 24 January 2005 was (he argued) a significant stressor and probable factor in the development of his subsequent mental health problems. Although Mr Peacock did not quite put it in this way, we understood him to be arguing that there was a vicious circle of suspension from clinical practice and depressive disorder; remove the one and the other was likely to be improved. We observed that whatever the truth of this, patient services on the Performers’ List were intended as a benefit for the patient and not therapy for the doctor.

133. Mr Peacock dismissed the PCT’s reliance on a “significantly high” level of patient complaints on the basis that no evidence had been adduced to enable us to compare Dr Wahab’s rate with that of other doctors. In any event this feature was not regarded by the PCT as sufficient on its own to justify removal.

134. He submitted that removal on efficiency grounds would be precipitate and disproportionate, failed to have regard to the positive steps which Dr Wahab had taken prior to his ill health, and failed to have sufficient regard to that ill health as a reason for his inability to comply with the GMC’s Statement of Requirements. He particularly pointed to a number of features to support this submission, including the PCT’s alleged overstating of the seriousness of the GMC’s Performance Assessment (which he pointed out is intended to be remedial), its refusal to fund or give any real assistance to Dr Wahab in his efforts to comply, improperly interpreted events as showing that the time for compliance with the Statement of Requirements had lapsed, forced Dr Wahab to accept onerous undertakings and then kept a log of breaches of those undertakings rather than contacting Dr Wahab when breaches were first reported. The suggestion was that this was welcome ammunition to the PCT in seeking to strengthen its case for removal.

135. Mr Peacock submitted that Dr Wahab had demonstrated insight by not challenging the Performance Assessment (although we do not think this submission sits easily with the evidence from Dr Wahab we have noted above at paragraphs 93-94); by signing up to the Statement of Requirements, undertaking retraining with Dr Bannar-Martin, and recognising there was further work to be done. We were urged to be careful about criticising his insight at any time when he has been in poor mental health.

136. In relation to the efficiency issues, Mr Peacock submitted that a proportionate response would be to impose conditions (i.e. contingent removal) which might in essence reflect the GMC interim conditions and Statement of Requirements. But given the PCT’s view about the unworkability of conditions, it had not been possible to canvass any in evidence. However Mr Peacock did not canvass or propose any conditions more specifically than this.

137. Turning to “unsuitability”, Mr Peacock accepted our formulation (above) of the standard of proof for judging whether there was inappropriate sexual behaviour. He described Ms Burns as an unimpressive witness whose allegations were wide ranging and was unwilling or unable to date the alleged harassment, which formed only a small part of her claims. She had not left Dr Wahab’s employment because of any alleged harassment and the complaint was only raised after she left. He characterised her approach to giving her evidence as “inappropriately light hearted”. He also pointed to matters where she could be shown to be wrong as in the availability of a handbasin in Dr Wahab’s room, whether the practice could display information leaflets about drugs and (if Mrs Tomney was correct) whether she was herself given to using offensive or sexual language. As to the other concerns raised by Ms Burns he sought to meet the problems of apparent consistency with the GMC Performance Assessment by saying there was a danger such consistency could be misconstrued, as the Performance Assessment had not been challenged by Dr Wahab. In any event her allegations were so vague as to be incapable of proper challenge.

138. As to Ms Tricia Dixon, Mr Peacock relied on the fact that her complaint was made after, and provoked by, an apparent irretrievable breakdown in the working relationship between her and Dr Wahab. These allegations too were so vague in detail that it was difficult to rebut them. He argued that the layout of the room, the chair in use, and the nature of the manoeuvre involved, all made it unlikely that the touching took place as alleged. He suggested we were able to take into account that an Employment Tribunal had rejected a claim for sexual harassment made by Ms Dixon. He also invited us to say she was an unimpressive witness. In summary, the evidence did not cross the evidential threshold to support a finding of unsuitability.

139. Mr Peacock turned lastly to the breach of undertakings made to the PCT which prompted his suspension. He relied on his client’s evidence (confirmed as a matter of impression by Mr Barr) as to the degree of pain he was suffering and the effect of large doses of pain killers which may have affected his concentration and judgement on the occasion of his suspension hearing before the PCT in November 2004. He pointed out that the schedule of breaches was admitted and repeated that Dr Wahab had not understood what was required of him; it was a time of great stress for him. He repeated an apology for the breaches.

Findings

140. We address firstly the allegations of sexually inappropriate conduct. We found Ms Tricia Dixon to be an impressive and credible witness. The distress she displayed from time to time in giving evidence was in our view genuine. She maintained her account against tough questioning. We found the reasons put forward by or on behalf of Dr Wahab as to why she might be making up untrue allegations to be unconvincing and we accept that she had nothing to gain by making the allegations up (as she remarked). Having seen the demonstrations given by both parties during evidence, we are satisfied that it was mechanically possible for Dr Wahab’s fingers to touch the outer aspect of the top of Ms Dixon’s thigh on the first occasion, and down her back, over her bra strap on the second occasion. We also note that the evidence of Mrs Ragab tends to corroborate, in a way that was not anticipated, what Ms Dixon said about leaning forward to avoid contact with Dr Wahab’s hand and pulling a face at Ms Johnson sitting opposite. We have no doubt that some brief but inappropriate contact occurred on the two occasions she describes, and we have given careful consideration to the nature of the contact. Ms Dixon’s evidence was in our view a genuine attempt to recall events, albeit not with the benefit of having given her initial account soon after the events in question. We also note that the contact was not alleged to be skin to skin, that on the first occasion it was nearer her hip than her groin (as demonstrated in evidence), that on the first occasion the contact was estimated at no more than 5 seconds, and that as soon as she moved her position Dr Wahab noticed and moved his hand away.

141. We find that there was a sexually inappropriate lingering touch on both occasions of which Ms Dixon complains, in which Dr Wahab did not persist, but which caused embarrassment and confusion for Ms Dixon. The context of these two incidents is slightly baffling, as there is no suggestion that Dr Wahab otherwise pursued Ms Dixon, or said anything to suggest he was attracted to her or behaved otherwise inappropriately to her. Nor do we have any evidence from which we can conclude that this was part of a pattern of behaviour towards female staff. Ms Dixon was not a junior employee and was a woman whom we have heard could be combative and demanding herself. While conscious of the standards which are rightly expected of male employers towards female staff, these two incidents were in our view limited, and towards the lower end of the scale of sexually inappropriate behaviour.

142. So far as Ms Burns is concerned we did not find her, in general, to be an impressive witness. The evidence she gave tended to be vague and rather offhand. We did not find her to be reliable in some of what she told us, for example about the lack of handbasins to enable good handwashing practice at Luton Road surgery. She was also (as we find) wrong about the existence of only one fridge at Luton Road surgery, for the storage of medication, and indeed changed her account when challenged. Having regard to her role as a Practice Nurse this is difficult to explain as an innocent error, and she also failed to be candid about her own responsibility for the monitoring of the fridge in her own room. The common thread appeared to be a tendency to exaggerate or embellish. The allegation of a sexually inappropriate remark made by Dr Wahab is to be found at the end of a long catalogue of complaints about how the practice was run, in her witness statement. Her evidence on this point had the character of a throwaway additional comment to damn Dr Wahab, from whose employment she had left on bad terms, quite some time before the allegations were first raised. Applying the test to which we have referred at paragraph 12 of this decision, we are not satisfied that Dr Wahab made the remark “if you don’t stop I will have a hard on which will lift this desk” as alleged by Ms Burns.

143. We also find that Dr Wahab’s practice of asking female patients who attended for hormone implants to remove their underwear was within an acceptable band of clinical management, for the reasons given by him in evidence and we further note the presence of a chaperone at all times and that no procedure is otherwise criticised as inappropriate or accompanied by inappropriate conduct or language. The use of the trochar during this procedure (characterised as inappropriate by Ms Burns) was and is part of acceptable surgical practice. We reach the same conclusion about the allegation that a 14 year old girl was asked to remove her bra for a chest examination.

144. That is not so say there was no substance in any of what Ms Burns said. We accept, as was demonstrated during the evidence in particular of Dr Wahab [see paragraphs 94 to 98 of this decision], that there are some findings during the Performance Assessment which reflect the gist of some of her complaints about clinical practice or aptitude. We think it probable therefore that Dr Wahab did fail to keep notes of an attendance by a boy with an unexplained lump on his neck, and took no action to follow it up. We further find that he did have unacceptably poor skills at dealing with hypertension, keeping up to date, diagnosing and managing asthma, and conducting physical examinations as the Performance Assessment demonstrates. We also find that Dr Wahab did not practise acceptable hygiene when assessed, although we find that Ms Burns bolstered her allegation with untrue detail about his not even having a handbasin except a sink downstairs used for everything. She was (we find) exaggerating when she alleged that he “never” washed his hands, and could go from examining piles to fitting a coil without doing so. As we think that Ms Burns was prone to exaggerate, we do not think her complaints about clinical matters (on which she is not the appropriately qualified expert) are otherwise made out. We found on questioning her about drugs such as Kenolog that her knowledge was so inadequate as to make her criticisms of Dr Wahab valueless. We are not satisfied that Dr Wahab removed, or caused to be removed, drug information sheets from the very limited number of medications which were dispensed from the surgery. We accept Dr Wahab’s point that he would have no control over drug information sheets for drugs dispensed by a pharmacist.

145. We do not find the allegations about allowing two alcoholic patients access to the surgery unsupervised to be made out; Ms Burns was repeating hearsay about the incident, and we ignore it.

146. Standing back from the whole of Ms Burns evidence we find we are not much assisted by it. Insofar as she speaks about examples of deficiencies later demonstrated by the Performance Assessment, they do not add much to what we know reliably from the Performance Assessment. However we acknowledge that it demonstrates the real ways in which his deficiencies could impact on patient welfare.

147. We find that Dr Wahab’s competence and efficiency, measured by the Performance Assessment in mid-2003, was seriously deficient to the extent that, in the absence of being remedied by real, verified and sustained improvement to an acceptable level, would lead to the conclusion that Dr Wahab’s continued presence on the Performers List was likely to prejudice the efficiency of the services. The PCT was entitled to look for real recognition by Dr Wahab of his deficiencies and proactive and effective steps to comply with the Statement of Requirements. We find that Dr Wahab failed in both respects. He did not grasp, and continues not to grasp, the extent to which he was deficient. Despite superficially accepting the criticisms within the Performance Assessments and the conditions in the Statement of Requirements, we do not think he fully recognises the nature and extent of his deficiencies or the profound changes (and effort) he has to make to remedy them. We were dismayed to hear him continue to give, at this hearing, excuses for the lamentable standard of performance over the extensive process of the Performance Assessment, and examples of which are set out at paragraphs 92-97, 100-102 and 108 – 110 of this decision. He still seemed to think it might be acceptable to explain the overuse of antibiotics on the basis that all busy doctors do it, or that he had missed a lump in the patient (mannequin’s) axilla because he had been asked to examine the breast not the axilla.

148. Despite assuring us he spent 10 hours per week on keeping up to date, even during his period of ill health, Dr Wahab was unable to reassure us that his knowledge in areas which had previously been found deficient (for example prescribing Methatrexate, where a catastrophe of mis-prescribing to a patient in his practice had been narrowly averted) was any better than when the deficiencies were first identified. We would have expected those areas to be a starting point for his updating of his knowledge. We find that he has shown little, or insufficient insight into his shortcomings and the steps he must take to remedy them.

149. Arguments have been raised as to whether he might have expected the PCT to contribute to the cost of arranging a supervisor. We note that the Statement of Requirements merely stipulated that he should undertake training in the areas identified. It was up to Dr Wahab (in consultation with the Dean of GP Postgraduate Education) how he did that. The GMC had given him 12 months before a further Performance Assessment was to be arranged, and there was no time to be wasted, if he truly appreciated the distance he had to travel to demonstrate competence. We find that Dr Wahab did not give these remedial steps the urgency and importance they demanded. By 29 January 2004, over three months since he had signed the Statement of Requirements, hardly anything had been achieved. We accept the evidence of Mr Woodman on this and on his other dealings with Dr Wahab. The report of Dr Grace, who took over the monitoring role, is more positive in tone, but the grid in his report does not enable us to judge the nature of the progress in a practical sense. We are not much assisted by a list which does not include all the steps required by the Statement of Requirements and merely describes 5 “actions” as “ongoing”. In itself that tells us very little about what it was that was ongoing. We refer to the matters of concern raised at paragraph 34 of this decision. Dr Grace’s report was 7 months into the anticipated 12 months before Dr Wahab was to have been re-assessed. Dr Bannar-Martin’s reports are prepared for a training purpose. Nevertheless we find the matters set out at paragraph 38 of this decision, in particular the doubt as to whether he was going to change his behaviour, to be a reflection of Dr Wahab’s underlying reluctance, or inability, to engage effectively with the training process. In our view he does not understand the difference between attending a training meeting or education session, and engaging so as to understand what is being said and apply it to his own practice. He has for example used a full education allowance in his GP remuneration both before and after 2003, and attended education events, without appearing to derive any significant benefit in his day to day clinical practice, at least so far as objective assessment is concerned.

150. Nor can Dr Bannar-Martin remedy the poor practice management which the Performance Assessment had identified, and which Dr Wahab continued to demonstrate in more recent times. Dr Wahab has struggled to service a large patient list (twice the average size) by himself, assisted from time to time by a succession of locum or assistant doctors none of whom stayed for long, despite the clear injunction from the GMC to recruit additional medical staff. We find that Dr Wahab had made no realistic or effective attempt to recruit qualified and permanent doctors to his practice. We were unimpressed by his explanations for why several doctors had left, and indeed he had sacked one, allegedly for being unwilling to adopt computerisation. We were told he had advertised often in the professional press but have not seen any evidence of this, and in our view he overstates the efforts he has made. He told us that two Polish doctors had recently written to express an interest in joining him, but even if correct this is a last-minute demonstration of what can be done when the chips are down.

151. Not only did Dr Wahab fail to recruit, as stipulated, but he failed to provide adequate training of his staff (such as Ms Dixon, whom he characterised as incompetent, although he provided such training as she had), and failed to retain staff.

152. We also find that Dr Wahab has resolutely resisted all attempts by the PCT to get him to reduce his patient list size by closing one of his three surgery premises to reduce his patient list. We find that the suggestion made at this hearing of closing Station Road was the first time it had been raised with relevant PCT officials. The fact that the suggestion was made demonstrates a belated acceptance that this patient list is too big for the medical resources Dr Wahab can bring to bear. We think the reason he gave in evidence of fearing a reduction in his income if he reduced the patient list was probably a significant reason why he failed to reduce the list, and to that extent a failed to put patient welfare before his own interest.

153. Turning to the question of Dr Wahab’s ill health since September 2004, we have already found [paragraph 40] that he has suffered from the spinal stenosis described in the orthopaedic reports and from at least May 2006 and probably from some time in 2005 which cannot be known precisely, he has suffered a moderate depressive illness, by reason of which he has been, and currently remains, unfit to practise. He is receiving psychiatric treatment, including medication. So long as he continues to respond to treatment, the prognosis is that he will be fit to undergo a performance assessment within three to six months [Dr Turner, A2/89]. That in itself does not necessarily mean he would be fit to conduct the work of a General Practitioner seeing patients in the consultation room. But even if it does, the prognosis means that there cannot be a return to work (even with supervision under a programme) for three to six months. We also accept that he will continue to require medical supervision and an appropriate return to work programme if he recovers sufficiently.

154. That he could not fulfil all the requirements of the Statement of Requirements from September 2004 to date, through ill health, is not an end of the question. Firstly we would need to be persuaded that his progress from September 2003 until September 2004 had been sufficient to enable us to be reasonably confident that after he became fit, he would be able to remedy his deficiencies and pass a Performance Assessment. We are not so satisfied. Secondly Dr Wahab has agreed in evidence that he could have been complying with some parts of the Statement of Requirements, in particular as keeping up-to-date and improving his communication skills. After considering his evidence we are satisfied that he has not done so.

155. We find that Dr Wahab did know that he had given an undertaking not to contact his surgery practice directly by telephone, and that his telephone calls set out in the agreed schedule were in breach of that undertaking. We understand the concerns expressed by Mr Barr about the practicability of the restriction, given that Dr Wahab still had a contractual obligation to provide the health services and a legitimate interest in managing the practice effectively, and in our view he decided that he would telephone when necessary (without going through an intermediary at the PCT) and there was no, or very little, mischief in that because he was not harassing the complainants or doing anything amiss of that sort. We also understand why for the PCT this was the last straw and eroded what remained of their trust in Dr Wahab. We detected considerable frustration with Dr Wahab among the PCT officers. We are able to take a slightly more detached view of his conduct on this occasion but we share the view that it is an example of how Dr Wahab complies with something when it suits and is inclined to ignore it when it does not.

156. Of greater significance in our view is that, even apart from this incident of the breach of undertaking in November/ December 2004, on the basis of his performance since September 2003, we have no confidence that Dr Wahab is capable of insight into his deficiencies or is capable of remedying them. Nor do we think we can rely on him to comply fully with undertakings.

157. Dr Wahab has effectively been out of clinical practice for two years. For around one year he has suffered depression to an extent which disables him from medical practice. Even if he had been operating at a competent level in 2003/2004, he would need a significant input of retraining to ensure patients were not at risk. Given the seriously deficient level of his performance before that absence from practice, and our findings about his inability to engage effectively with the process of retraining, there is in our view no realistic prospect of his achieving a sufficient level of competence, both clinically and managerially, in the reasonably near future. Indeed, unless he achieves significantly better insight into what is required, he may never do so. These patient lists cannot be left in limbo forever. The standard of care provided is necessarily fractured between several locum doctors, with an “absentee” managing doctor (Dr Wahab) and the increase in patient complaints is, as Dr Wahab accepted, one indication of a patient service which is not as satisfactory as it would be with full time doctors in post. Nor can the PCT be expected to shoulder a significant additional cost, to the detriment of other patient services, of funding the practice as at present, without the reassurance that Dr Wahab will achieve acceptable levels of performance in the reasonably near future.

158. We therefore conclude that Dr Wahab’s continued inclusion in the Performers’ List would be prejudicial to the efficiency of the services which those included in the List perform.

159. We have considered the submission that he ought to be contingently removed and subjected to appropriate conditions. We reject that submission. Nobody has suggested to us any draft conditions which might be appropriate, nor are we able to identify any for ourselves. While not determinative, the unwillingness of the PCT to deal with Dr Wahab or contemplate operating with him under any conditions, is another factor making the imposition of conditions undesirable. Most importantly, we are not satisfied that Dr Wahab would prove capable of keeping to conditions, and even with conditions would probably not remedy his deficiencies within a reasonable or sufficient span of time.

160. We have given very careful consideration to the necessity to remove Dr Wahab, and in particular the impact upon him and the proportionality of that step. We have also taken into account the issues of patient care to which we have referred, and are in no doubt that removal is justified and necessary.

161. We have given anxious consideration to the question whether the PCT has proved that Dr Wahab is unsuitable to be included in the Performers List. On the basis of our limited adverse findings on sexual misconduct and where that conduct falls on the scale, coupled with our view on the circumstances of the breach of undertaking (the second matter relied on by the PCT) we are not satisfied that Dr Wahab is unsuitable to the included in the Performers’ List, and to that limited extent the appeal is allowed.

162. We therefore unanimously dismiss the appeal on the basis of our conclusions on efficiency and direct that Dr Wahab’s name be removed from the Performers’ List.

163. We further direct that a copy of our decision be sent to the bodies mentioned at Rule 47 of the Family Health Services Appeal Authority (Procedure) Rules 2001, which in respect of the paragraph (e) shall be the GMC.

164. We have not been invited to consider National Disqualification but have a duty to consider that. We would not do so without giving the parties the opportunity to make submissions. The Panel has not found this an easy question. In the circumstances we think it appropriate to invite submissions, and set out the following framework:

a. We intend to receive such submissions, and any additional evidence to be relied on, in writing, unless either party feels a hearing is necessary, in which case we direct that the FHSAA shall be notified in writing of that wish within 28 days of this decision being sent to the parties.

b. In default of such notification, we direct that written submissions, together with any witness statement intended to be relied on, on the issue of national disqualification, shall be sent to the FHSAA and served on the opposite party so as to be received within 28 days of this decision being sent to the parties.

c. Any party on whom such a statement is served may apply within 14 days thereafter to restore the hearing for the purpose of cross-examination of that witness, and the Panel shall then direct whether, when and where a hearing shall be held.

165. 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 28 days from the receipt of this decision. Under Rule 43 of the 2001 Rules a party may also apply for review or variation of this decision no later than 14 days after the date on which this decision is sent.

18 October 2006

Duncan Pratt

Chair of the Panel

CASE NO. 12243

IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY

Mr. D Pratt - Chair

Dr S Sharma - Professional Member

Dr D Ratzer - Member

BETWEEN:

DR MOHAMED ADEL WAHAB

(GMC number 2880552)

Appellant

-and-

MEDWAY TEACHING PRIMARY CARE TRUST

Respondent

DECISION AND REASONS

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[1] 10 (3) The Primary Care Trust may remove a performer from its performers list where any of the conditions set out in paragraph (4) is satisfied.

(4) The conditions mentioned in paragraph (3) are that –

(a) his continued inclusion in its performers list would be prejudicial to the efficiency of the services which those included in the relevant performers list perform (“an efficiency case”);

….

c) he is unsuitable to be included in that performers list (“an unsuitability case”).

[2] Witness bundle pages W 314 - 316 and reproduced in Document bundle R2, pages 287-289

[3] Witness bundle page W 310 and reproduced in Document bundle R2 pages 293 and 358