Dr D Kwan - Professional
Member
Mrs J Alderwick - Member
BETWEEN
(Registration
Number 2232379)
and
MEDWAY TEACHING
PRIMARY CARE TRUST
Respondent
1. On 25 June 2004 in Case No
HO02X00862 in the Queen’s Bench Division of the High Court of Justice between
Dr OAF Ahmed (Claimant) and Dr N Addy and Dr N Karwal (Defendants) Mr Justice
Mackay gave judgment for the Claimant in the sum of £188,300 plus interest and
costs. The Second Defendant (“Dr
Karwal”) is the Appellant in these proceedings and the First Defendant (“Dr
Addy”) her husband.
2. The Learned Judge found in
short, applying a criminal standard of proof, that Dr Karwal and Dr Addy had
induced Dr Ahmed to hand over to them the sum of £188,000 by fraudulent
misrepresentations in relation to a bogus business venture of the type commonly
known as an advanced fee fraud. The
characteristic element of such a fraud is that a person is asked to facilitate,
by giving the fraudster money to pay a fictitious insurance premium, the
payment out of an African Central Bank account non-existent business profits
falsely claimed to have been made by the perpetrator of the fraud.
3. Permission to appeal
against the judgment was refused by a single judge of the Court of Appeal on
paper on 6 September 2004 and the renewed oral application was refused by the
full court on 22 October 2004.
4. It is fair to record that
Mackay J, although finding fraud on the part of both Dr Karwal and Dr Addy, (a)
characterised Dr Karwal’s state of mind as “at the very least reckless as to
whether her misrepresentation was true or false” (paragraph 97 of the judgment)
and (b) appeared to treat Dr Addy as the main instigator of the fraud. Both continue to contest the judgment and
have made an application to the European Court of Human Rights (“ECHR”) of
which more below.
B. Removal from Performers’ List
5. By a letter dated 28 July
2004 Philip Greenhill, Director of Primary Care of Medway Teaching Primary Care
Trust (“the PCT”), gave Dr Karwal notice that the PCT intended to consider
suspending her under Regulation 13 of the National Health Service (Performers
Lists) Regulations 2004 (“the Regulations”).
At a meeting of the Decision Making Group (“DMG”) of the PCT held on 22 September 2004 under the
chairmanship of an independent chair it was decided to suspend Dr Karwal from
the Performers’ List with immediate effect.
Full reasons for the suspension were contained in a further letter from
the PCT to Dr Karwal dated 6 October 2004.
6. By a letter from the PCT
dated 13 December 2004 Dr Karwal was given notice of the PCT’s consideration
whether to remove her from the Performers’ List under Regulation 10. At a further meeting of the DMG of the PCT
on 18 January 2005 it was resolved to remove Dr Karwal from the Performers’ List. At that meeting the DMG heard oral representations
from Mr Barr of the Local Medical Committee and written representations from
Messrs Clyde & Co. Dr Karwal chose
not to attend that meeting and authorised Mr Barr in writing to appear on her
behalf. The removal was based solely on
the suitability criterion under Regulation 10 (1) (4).
7. In its application to
suspend Dr Karwal and in its Statement of Case supporting the application to
remove her the PCT relied solely upon the proceedings brought by Dr Ahmed and
the High Court judgment against her.
9. Directions were given on 29
April 2005 and a hearing date set for 26 May 2005. By a letter dated 28 April 2005 Messrs Clyde & Co applied for
an adjournment on the grounds that (a) Dr Karwal would be “unfit to withstand
the rigours of the hearing” and (b) that one day would be insufficient time for
the hearing.
10. The hearing on 26 May 2005
was treated as a hearing for further directions and attended (in the absence of
Dr Karwal) by Ms Bowron QC on her behalf and Mr Angus Moon for the PCT. Grounds advanced for a lengthy adjournment
of the appeal were: ill-health, the need to await the outcome of the
application to the ECHR, the need to await the outcome of a complaint to the
GMC by Drs Karwal and Addy against Dr Ahmed and the need for an interval to
enable Dr Karwal to place her legal team in funds for the substantive hearing
of the appeal.
11. The appeal was adjourned
until 5 October 2005 with two additional days in reserve. The only ground on
which the adjournment was allowed was the desirability of Dr Karwal having time
to fund legal representation at the substantive hearing. The Panel rejected the application insofar
as it was based on Dr Karwal’s state of health on the basis that there was no
evidence that she was suffering from anything but a combination of chronic
illnesses, no evidence that she was or was likely to be in an acute phase of
any of these illnesses or that her state of health was likely to be any better
in three months than at the date of the application. We shall return to the other grounds below.
12. Directions were given for
the exchange of witness statements and supplemental statements and appeal
bundles. The first two of these were
duly complied with but a further application for an adjournment was made by
letter dated 16 September 2005. The
grounds relied upon were: (a) unresolved financial difficulties precluding the
arrangement of legal representation, (b) the unavailability of Mr Barr
(described as “our witness” but presumably as an alternative representative)
and (c) the need to await the outcome of the application to the ECHR.
13. This application was
resisted by the PCT on the grounds (a) there had been one lengthy adjournment
to a date agreed on behalf of Dr Karwal, (b) the PCT had committed resources to
the preparation for the 5 October hearing, (c) there was no evidence that legal
representation would be fundable by Dr Karwal by an adjourned date and (d) a
further adjournment would prejudice the PCT by, for example, the effect on
memories of the lapse of time and the continued payments by the PCT to Dr
Karwal during her suspension.
14. By Directions dated 28 September 2005 the application for an adjournment was refused and Dr Karwal was directed, if she chose to renew it at the commencement of the hearing on 5 October, to provide evidence in writing of the future availability of funding for her appeal. The Appellant was further directed that if, as seemed likely, she intended to make submissions relating to the pending application in the European Court of Human Rights (“ECHR”), she should file with the FHSAA (a) a copy of the application to the ECHR and (b) a copy of any final submissions made to the ECHR. This had been ordered by the Directions of 29 April 2005 to be done by 19 May 2005 but that Direction had not been complied with.
15. By a letter dated 29 September 2005 Messrs Clyde & Co advised the solicitors for the PCT and the FHSAA that they no longer acted for Dr Karwal.
16. There followed letters
addressed to the Panel Chair dated 30 September, 3 October and 4 October
2005. These repeated the request for an
adjournment on the same grounds and referred back to the necessity to delay
proceedings until the GMC and police investigations into the conduct of Dr
Ahmed had been completed. In addition
there were two new grounds. It was
submitted that the FHSAA or the PCT should provide Dr Karwal with £30,000 to
fund her appeal and that the Chair (and possibly the Professional Member of the
Panel) had conflicts of interest in hearing the appeal.
17. All these letters were
typescript with a typescript signature “Dr Naveen Karwal pp” with a manuscript
above it. This manuscript may be
initials or a signature: all these letters appear to have been written by Dr
Addy.
18. By a letter faxed by FHSAA
to Dr Addy (in response to a telephone call) on 3 October 2005 was advised that
the Panel members had signed a declaration that they had no conflict of
interest in hearing the appeal, that Dr Karwal should attend on 5 October 2005
and give oral evidence about her financial position and reminded that, if
reference was to be made to the application to the ECHR, a copy of that
application and any final submissions made in support of it should be produced.
19. In response to this a
letter on behalf of Dr Karwal was faxed to FHSAA the same day alleging lack of
independence on the part of the Chair principally on the basis that he was a
Non-Executive Director of Wandsworth PCT.
D. The 5 October hearing
20. On 5 October 2005 in the
absence of Dr Karwal the Panel considered the written application for an
adjournment. This was opposed by Mr
Angus Moon on behalf of the PCT. In
short he submitted that more than 8 months had elapsed since the decision to
remove; that delay was the enemy of justice; that three days had been set aside
to consider the appeal; that the PCT was paying Dr Karwal £4,000 per month as
well as paying another doctor to look after her patients and that those
patients were entitled to continuity and to know who was their GP.
21. He submitted that Dr
Karwal had had more than four months to arrange funding and that there was no
evidence that she would be in any better position to arrange that funding in
the future than at the present time.
22. In relation to the
inequality of arms (that is, appearing unrepresented against a represented PCT)
owing to that lack of funding Mr Moon referred to Pine v The Law Society [2001]
EWCA Civ 1574 for the proposition that the test was whether the withholding of
legal aid (in this case, by analogy, lack of access to funding) would make the
assertion of a civil claim practically impossible or lead to obvious unfairness
of proceedings.
23.When considering these
criteria the Panel should, he said, consider four matters: (a) what was at
stake, (b) the complexity of the law and procedure, (c) the capacity of the
party to represent herself and (d) the likely unfairness in proceeding.
24. In relation to (a) Mr Moon
submitted that only the ability to continue as a General Practitioner in the
NHS (and not the liberty of the subject or the ability to practise private
medicine) was at stake. In relation to
(b) the procedure was a redetermination and thus complex legal arguments and
appellate procedure were not involved.
The legal question was said to be simple: did the findings of Mackay J
render Dr Karwal unsuitable within the meaning of Regulation 10?
25. In relation to (c) Mr Moon
submitted that the fact that Dr Karwal had law degrees and some experience in
the conduct of litigation made her not incapable of representing herself and in
relation to (d) that the Panel itself should and would guard against unfairness
in its procedures.
26. Turning to the grounds
relied upon to adjourn the hearing it was said that on Dr Karwal’s evidence
(contained in the letter dated 30 September in paragraph 4 (h)) she would need,
in order to vary or discharge the freezing order over her assets, to raise
either £800,000 or £988,000 (depending whether the figures set out in that
letter are cumulative or separate).
27. There was no evidence of
an application to vary the freezing order or of the value of the three
properties in respect of the remortgaging of which Messrs Dundas & Duce,
solicitors in Maidstone, had been instructed.
In summary, it was impossible to say if or when funding for these
proceedings might become available.
28. In relation to the claimed
bias of the Panel Mr Moon asked us to deal with the issue first as it affected
the application for an adjournment and again at the beginning of the
substantive proceedings. He relied on
Porter v Magill [2002] 2AC 357, at paragraph 103, and submitted that the
correct test was “whether the fair-minded and informed observer, having
considered the facts, would conclude that there was a real possibility that the
tribunal was biased”. He submitted that
the Panel Chair was not a director of the Respondent PCT and there was no
reason to suppose that his Non-Executive membership of another PCT would even
possibly lead to a pre-determination of the issues in this case.
29. In relation to the need to
await the outcome of the GMC investigation of Dr Ahmed Mr Moon produced an
attendance note by Messrs Capsticks of a telephone conversation with Peter
Swain of the GMC dated 22 September 2005 to the effect that that investigation
was not being pursued.
30. In relation to the need to
await the outcome of the application to the ECHR Mr Moon submitted that Dr
Karwal had failed to comply with the Direction to disclose the application and
any final submissions made. In
paragraph 10 of the letter sent on behalf of Dr Karwal on 3 October 2005 it was
claimed that since the matter was “[SUBJUDICE]” no-one should have a copy of
the final submission. Mr Moon submitted
that there was no privilege protecting these documents from disclosure. More importantly, he submitted that there
was no reason to await the outcome of this application since it could not as a
matter of law affect the judgment of Mackay J or the rejections of the
application for permission to appeal against it.
31. On the final ground that
the appeal should be delayed until the outcome of the police investigation of
Dr Ahmed for perjury was known, it was submitted that there was no evidence
before the Panel as to what stage that investigation, if indeed it was still
continuing, had reached or when it might be completed or, indeed, what
assistance it could be to the Panel in the determination of this appeal.
32. There are three questions
to be addressed: do we have power to proceed in the absence of Dr Karwal; if
so, should the hearing proceed with the appellant unrepresented; and is there a
good ground upon which to adjourn the hearing?
33. The power: by Rule 40 (1)
of the Family Health Services Appeal Authority (Procedure) Rules 2001 the Panel
may either adjourn the hearing in the absence of a party or “(a) unless it is
satisfied that there is reasonable excuse for such absence, hear and determine
the appeal…”.
34. The decision to proceed in Dr Karwal’ absence: we have considered the representations made on behalf of Dr Karwal as required by Rule 40 (2). We note that no application to adjourn the hearing on health grounds has been made and conclude that Dr Karwal could have attended, had she chosen so to do. She was by letter dated 3 October 2005 encouraged to attend, if only to provide more information to support her case that she should be allowed time to fund legal representation. We take into account the fact that Dr Karwal has two University awards in law and she and Dr Addy have experience of conducting litigation (the application to the ECHR, an Employment Tribunal application against West Kent Health Authority and Medway CHC and two civil claims against Mr and Mrs Bryans). We conclude that her absence was without reasonable excuse and that we should go on to consider the application for an adjournment on its merits.
35. Should the hearing be adjourned? We determined to hear the application for an adjournment and to give an oral decision at the end of it. We decided to refuse the application for reasons to be given in detail later. The following are the reasons for our decision.
36. We deal with the “equality
of arms” point first. We find that the
stakes for Dr Karwal are indeed high since an adverse outcome of this case will
severely limit her practice of medicine.
37. In our view the procedure
for the hearing is simple and informal.
The Panel would be careful to ensure that it was comprehensible to and
easily usable by Dr Karwal. The question
of law is also short and unburdened by legal authority and is a question upon
which there is accessible guidance from the Department of Health. It would be possible to characterise the
question as a “jury question” or as one of common sense.
38. For the reasons set out in
paragraph 34 above we find that Dr Karwal should have been competent to
represent herself alone or with the assistance of Dr Addy.
39. Any disadvantage to Dr
Karwal could in our view have been largely mitigated by the supervisory
activity of the Panel. Thus we do not consider
the disadvantage of appearing without professional representation in itself
sufficient to provide a good ground for adjournment.
40.The main substantive ground
upon which an adjournment was sought was the need for an interval to secure
funding for legal representation. The
evidence provided in support of this was manifestly unsatisfactory. Although Messrs Dundas & Duce had been
instructed on the remortgage of three properties and had, according to their
letter of 28 September 2005 “received valid mortgage offers” to allow the
transactions to proceed, they were unable, perhaps surprisingly, to give any
indication when they might be completed.
Nor was there any evidence of the funds that might become available
after such completion.
41. In paragraph 4(h) of the
letter of 30 September from Dr Karwal there is reference to “sale/remortgage”
of three properties but again no evidence of the preferred course of action or
of the likely resulting surplus, if any, after discharging up to £988,000
secured by court order. The letter also
says that the solicitors must not be contacted “because they are at a very
delicate stage of negotiations”.
42. That letter raises the
intention, if the hearing were to be adjourned, of applying to the court for
variation of the freezing order to enable representation to be funded. We conclude that such an application could
and should have been made at any time after the hearing date of 5 October 2005
was fixed on 26 May 2005, particularly after receipt of three offers of remortgage.
43. It was for the reason of
this lack and uncertainty of evidence that Dr Karwal was encouraged by
Direction of 28 September and letter of 3 October to attend the hearing with
documents so as to be in a position to explain her position. She has steadfastly refused so to do. We therefore reject delay to obtain funds
for representation as a valid ground for the adjournment of the hearing. We should add for the sake of completeness
that the FHSAA has no power to provide or order the PCT to provide funding for
Dr Karwal’s appeal
44. In relation to bias we
considered whether the Panel, and in particular the Chair, was biased so as to
vitiate the application for an adjournment.
For the reasons submitted by Mr Moon we concluded that it was not and
resolved to reconsider the question before beginning to hear the appeal itself.
45. We reject the ground based
on the GMC investigation of Dr Ahmed on the ground that there is uncontroverted
evidence that the investigation has been discontinued.
46. We reject the ground based
on the police investigation of Dr Ahmed on the ground that there is no current
evidence of the existence or state of that investigation.
47. The remaining ground is
that the hearing should be adjourned until the conclusion of the application by
Dr Addy (joined by Dr Karwal only after her removal from the List) to the
ECHR. This ground is without merit for
two reasons. Despite Directions on 29
April and 28 September 2005 the application and final submissions to the ECHR
have not been put into evidence by Dr Karwal.
Thus the Panel has no knowledge of the grounds for the application or
its relevance to this appeal.
48. More importantly, it is
clear law that the ECHR has no power to quash or otherwise overturn the
judgment of Mackay J: Attorney General’s Reference (N0 2 of 2001) [2004] 2 AC
72 at paragraph 23. That was a criminal
case but there are compelling reasons to infer that, since no remedy was
available when the liberty of the subject was at risk, the result would be the
same where only issues of financial relief rested on the outcome. If any such application were to be
successful, the result would be a finding and the prospect of an award of
damages against the United Kingdom.
Neither would affect the judgment of Mackay J.
49. For all these reasons we
refused the application to adjourn the hearing. In order to give Dr Karwal a further chance to put her case a
letter was written by the FHSAA to Dr Karwal informing her that her application
had been refused but the substantive hearing would not begin until 10am on 6
October, the next day, in order to allow her a further chance (which she was
very strongly encouraged to take) to attend.
50. The FHSAA was informed by
Dr Addy at approximately 1215pm on 5 October 2005 that his fax was not working
and that the letter advising the outcome of the application for an adjournment
could not be received. Accordingly the
letter was delivered later that day by courier to Dr Karwal.
51. Dr Karwal did not attend and was not represented. A letter dated 6 October signed in the usual way was faxed to the FHSAA complaining that the courier delivery to a home address was inhuman and degrading treatment infringing the family’s human rights, alleging bias and complaining of further breaches of human rights.
52. Mr Moon addressed the Panel on the question whether, for the same reason as set out at paragraph 19 above, the Panel should recuse itself on the ground of apparent bias. He relied upon R v Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119 HL at 132-133 and submitted that there was no relationship between the Chair of the Panel and the PCT, that Medway and Wandsworth PCTs were not responsible to each other, that those PCTs had no common interest in removing GPs from each other’s Lists or in achieving a particular outcome for this appeal. In any event the Panel Chair, as a Non-Executive Director of Wandsworth PCT, was detached from the day-to-day executive functions of that PCT.
53. The existence, it was said, of apparent bias in this case would have wide consequences for courts and tribunals that would severely affect their proper functioning: no person connected with a PCT could be a member of the FHSAA, no professional member could be appointed to it and the like.
G. Decision on the issue of
bias.
54. After Mr Moon’s submission on the issue of bias and before proceeding with the substantive appeal the Panel Chair gave an oral judgment in the following terms.
55. In a letter dated 6th
October 2005 signed on behalf of the Appellant, an objection to my sitting as
Chair of this Panel, which has been made in more than one previous letter, has
been made on the grounds that I am “not really independent”. The reason for this is said to be that I am
a Non-Executive Director and (I should add for the sake of completeness) also
the Vice-Chair of another PCT, that is Wandsworth PCT, in South West London. My membership of the Family Health Services
Appeal Authority (the FHSAA) has been declared to that PCT and my membership of
the Board of Wandsworth PCT has been declared to the FHSAA. By agreement with the President of the
FHSAA I do not sit in cases involving appeals by professionals, against decisions
of PCTs in South West London. In fact
since my appointment to my PCT on 1st January 2003 I have not sat on
any cases involving appeals relating to any London PCT.
56. In this case I have
signed, as have my fellow Panel members, declarations that there is no conflict
of interest in hearing Dr Karwal’s appeal.
In the light of the submission of the Respondent we have considered
whether I or we do or may fall within the second category of cases of bias set
out in R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet
Ugarte (No 2) [2000] 1AC119 HL. The
decision in Pinochet is helpfully summarised by Colman J in re P (A Barrister)
[2005] 1WLR 3019 at paragraphs 84 and 87.
57. Paragraph 84 states:
“In
determining whether in a given case a Judge or Tribunal member would act as
Judge in his own cause it is clear from R v Bow Street Metropolitan Stipendiary
Magistrate, Ex P Pinochet Ugarte (No 2)[2000]1AC119 HL, that the following
approach is required.
(i)
It is first necessary to ascertain whether he or she is
a party to the proceedings or is so substantially a constituent of the party as
to be presumed to partake of its purpose as a participant in the proceedings.
(ii)
If a member of a Tribunal is not a party or one who is
inseparable from a party in that sense, the question then arises whether he or
she has a common interest with a party that the proceedings will have a certain
outcome.
(iii)
The interest need not be a financial interest. The essence of common interest is an
interest in the outcome, to the effect that the particular party will succeed
in obtaining a particular decision.
(iv)
In such cases there will be automatic disqualification
without investigation as to whether there was actual bias or suspicion of bias.
58. In
paragraph 87 Colman J sets out that
“What
matters is whether the appearance in a court of the relationship between the
Judge and the party indicates that they have a common interest.”
59. Since it
is common ground that I have no relationship as such with the Respondent Primary
Care Trust the question is whether I have a common interest with that PCT in
the determination of these proceedings.
60. In my
judgment there is no common interest between Wandsworth PCT and Medway PCT in
relationship to the recruitment or removal of general medical practitioners or
in relation to the maintenance of Performers Lists. Wandsworth PCT has no interest in the outcome of this
appeal. Wandsworth PCT and the
Respondent PCT have no direct relationship, no responsibilities to each other
and carry out their functions under the auspices of different Strategic Health
Authorities.
61. I am
fortified in my conclusion that there is no common interest giving rise to a
real or apparent bias of the second type described in Pinochet by the recommendation
of Lord Justice Chadwick contained in paragraph 7 of his judgment in Dobbs v
Triodos Bank NV [2005] EWCA Civ 630 that judges should be reluctant to recuse
themselves for reasons of comfort when confronted with allegations of bias.
62. To the
extent that similar allegations may be made alleging bias on the part of my GP
colleague, Dr Kwan, I reject them. I
reject these on similar grounds to those on which I rejected the allegations in
respect of myself. For the sake of
completeness I add that Dr Karwal alleges that she does not know the names of
the other Panel members. As I
understand it, it is the universal practice of the FHSAA to notify parties of
the membership of an Appeal Panel.
63. For the
avoidance of doubt, although this judgment has been delivered orally by the
Chair, it is a judgment of the entire Panel.
H. The substantive hearing of October 6.
64. It was common ground that the burden of proving the unsuitability and/or inefficiency grounds against Dr Karwal rested on the PCT.
65. In relation to the merits
(as opposed to questions of the removal procedure) the PCT relied solely on the
judgment of Mackay J and in particular as it dealt with Dr Karwal herself. Mr Moon drew attention to a number of
passages in that judgment: in paragraph 18 there was a finding that Dr Karwal
said (which she had denied) that she and her husband had done a business deal
worth £30 million when she knew it was not true. In paragraph 19 it was found as a fact that she did not
contradict Dr Addy’s untrue assertions about his wealth but rather encouraged
Dr Ahmed to believe they were true.
66. In paragraphs 53-55 the
judge found that Dr Karwal’s attempts to delay the trial were not made in good
faith.
67. In paragraph 30 she
positively confirmed untrue information about the business deal in order to
entice Dr Ahmed to part with his money.
In paragraph 97 there is an explicit finding of fraud against Dr Karwal.
68. Although it was not part
of its primary case, the PCT provided written evidence from Messrs Gillespie,
Anderson and Sheath and Dr Woodman, the members of the DMG in order to refute
the allegation of bias against the PCT in their decision to remove.
69. The statements of the
Messrs Anderson and Sheath were to the effect that they did not know Drs Karwal
and Addy before the 22 September 2004 meeting of the DMG. Dr Woodman had come across Dr Karwal some
years beforehand when she unsuccessfully applied to join the practice in which
he was the junior partner. He had also
been aware of the dispute between Dr Karwal, Dr Addy and Mr and Mrs Bryans but
did not take either of these matters into account when coming to a view at
either of the DMG meetings.
70. Mr William Burrell
Gillespie, the Chief Executive of the PCT, gave oral evidence in addition to
his witness statement. He described the
18 January 2005 meeting of the DMG. On
advice he asked Mr Barr to obtain the written consent of Dr Karwal to represent
her at the meeting in her absence. The
meeting did not begin until that was available. The meeting lasted about an hour as the statement of case was
presented to the DMG on behalf of the PCT and Mr Barr (whom Mr Gillespie
described as very experienced in these matters) replied on behalf of Dr
Karwal. Transcripts of both DMG hearings
were before us.
71. Mr Gillespie confirmed
that he was aware of a previous dispute over Dr Karwal’s premises which the PCT
regarded as sub-standard. At a meeting
attended by Dr Addy, but not Dr Karwal, Dr Addy proposed that adjoining
premises which he or Dr Karwal owned should be refurbished and the practice
moved to them. There was an independent
valuation of this option against another option proposed by the PCT and the
latter was found to provide better value for money. Dr Karwal appealed unsuccessfully to the Secretary of State
against this decision and the PCT withheld (as Mr Gillespie said it was
entitled to) the rates on Dr Karwal’s premises.
74. Three witness statements
were provided on Dr Karwal’s behalf. In
her own statement she described her professional background and then described
in paragraphs 4-17 a history of disputes with NHS bodies and with the
Bryants. The statement then deals with
her relationship with Dr Ahmed. In
paragraph 27 she claims to have been “completely unaware of any so-called
“business dealings” between my husband and Dr Ahmed and had certainly not been
directly involved in any aspect”.
75. She records that in
February 2000 the West Kent Health Authority referred a number of complaints by
patients to the GMC who instigated a performance review. That review, a copy of which was before us,
found the standard of Dr Karwal’s practice acceptable on all 14 assessment
sections.
76. In his statement Dr Addy
sets out his own professional background, confirms his wife’s statement, refers
to a history of disputes with West Kent Health Authority but declines to go
into details since they are “matters…not directly relevant to my wife’s appeal”
although he alleges they will have coloured the PCT’s view of his wife and her
practice (paragraph 4). He disputes the
findings of Mackay J and confirms that any dealings he himself had with Dr
Ahmed did not involve Dr Karwal in any way (paragraph 5). He ends by asserting that she has dealt with
her patients and practice with complete honesty, integrity and probity
(paragraph 6).
77. In his statement David
Homeshaw recorded that he had provided consultancy services to Drs Karwal and
Addy since 1997 having known the former since 1981. He describes in paragraphs 2-3 and 5-6 a series of disputes
involving Drs Karwal and/or Addy. He
refers to the outcome of the GMC performance review of Dr Karwal in paragraph 4
and to the claim by Dr Ahmed in paragraph 7.
In paragraph 8 he concludes “I have no knowledge of any facts or matters
which would suggest that Dr Karwal has dealt with NHS resources, with other
than honesty and integrity over the 23 years I have known her”.
79. In relation to the
application to the ECHR and the investigations of Dr Ahmed Mr Moon effectively
repeated his earlier submissions summarised at paragraph 29-31 above.
80. On the assertion in the
grounds of appeal of a lack of proportionality in the decision to remove it was
submitted that the doctrine of proportionality did not apply to the 18 January
hearing or this appeal: Kataria v Essex SHA [2004] Lloyds Law Reports: Med 215
at paragraphs 74-76, Chaudhury v GMC [2001] Lloyds Law Reports: Med 251 at
paragraph 21. This was on the basis
that the right to practise medicine is not a right guaranteed by the European
Convention on Human Rights. Mr Moon expressly reserved the right to argue that
Article 6 is not engaged in proceedings before the FHSAA.
81. In this case it was for
the Panel to make a fair and reasonable decision balancing the interests of
both parties. We should, it was
submitted, find that probity, honesty
and trustworthiness are central features of a doctor’s professional life. We were reminded of the well-known words of
Sir Thomas Bingham MR in Gupta v GMC [2001] UKPC 61 at paragraph 21: “A
profession’s most valuable asset is its collective reputation and the
confidence which that inspires. The
reputation of the profession is more important than the fortunes of any
individual member. Membership of a
profession brings many benefits, but that is part of the price”.
82. Mr Moon reminded us that
there was no statutory definition of suitability although Regulation 11 (2) of
the National Health Service (Performers Lists) Regulations 2004 directed
attention to a number of matters to be considered in deciding whether to
dismiss a practitioner on the ground of unsuitability.
83. Relevant in this case were
the nature of the incident, the length of time elapsed, whether there were
other incidents to be considered, any action taken or penalty imposed by a
regulatory body or the courts and the relevance of the incident to service
performance and likely risk to patients.
84. Mr Moon relied on the
fraudulent nature of the incident, reminded us that although it took place in
1999-2000 judgment was not given until 2004 (whereafter prompt action was taken
by the PCT) and asserted that there was an intrinsic risk to patients in being
treated by a GP who lacked integrity.
He did not rely on the third consideration and conceded that the fourth
might benefit Dr Karwal.
85. He referred to the
Guidance Good Medical Practice May 2001 at paragraph 54 which requires a doctor
to be honest in financial and commercial dealings with employers, insurers and
other organisations and individuals, giving particular emphasis to the last.
86. In relation to the
efficiency ground Mr Moon submitted that the continued inclusion on a List of a
doctor who lacked integrity would be prejudicial to the efficiency of the
service provided. He described the
concentration of the Guidance at paragraphs 7.4 and 7.5 on competence and
quality of performance as misleading and referred to Kataria at
paragraph 69 where Stanley Burnton J said “In my judgment it is obvious that
the efficiency of the NHS might be prejudiced by want of probity in a
practitioner, and in particular by any unreliability of his written or oral
statements. Fellow practitioners and
other NHS staff and patients must be able to rely on the integrity of doctors
and the honesty of their statements”.
87. No good reason (as opposed
to bare assertions to the contrary) has been advanced by Dr Karwal why we
should not (even if we were not in law compelled to) accept the findings of
Mackay J that she was a willing and active participant in a sustained campaign
of fraud against a fellow doctor.
88. In the letter of 30
September written on Dr Karwal’s behalf in paragraph 4 (f) it was alleged that
the judge (Mackay J) had “fabricated the evidence” by “improper connection with
Dr Ahmad to protect him”. In paragraph
11 of the letter of 3 October it was alleged that the PCT had an improper
connection with ten people including Mackay J.
No attempt was made to support these allegations with evidence or to
persuade the reader why she may be the victim of so broadly-based a
conspiracy. These allegations reinforce
rather than weaken concerns over the suitability of Dr Karwal to practise
medicine as a GP in the community.
89. It was suggested by Mr
Moon that Dr Karwal lacks insight into her condition. If she authorised these allegations to be made on her behalf, she
appears to be so lacking. If they were
sent in her ignorance of them or without her authority, it casts further doubt
on her professional qualities that she allowed the detail of this crucially
important appeal to be conducted on her behalf either ignorant of or
indifferent to what was said on her behalf.
90. The oral evidence of Mr
Gillespie, consistent with the written evidence of the other witnesses for the
PCT, satisfies us that the DMG meeting on 18 January 2005 was properly
conducted, took account of only relevant (and indeed very limited) matters and
avoided consideration of former episodes that might have predisposed the
members of the DMG against Dr Karwal.
If it is necessary to satisfy us that that meeting was conducted free
from bias, we are so satisfied.
91. We accept, for the
avoidance of doubt, the submission that any bias we might have found in the DMG
meeting would have been cured by a fair hearing before this Panel. We have made strenuous efforts to encourage
Dr Karwal to attend and taken pains in her absence (as we would have assisted
her, if present and unrepresented) fairly to consider and evaluate all the
evidence in the case that is summarised above.
It should be recorded that we have had and read three ring binders of
documents amounting to several hundred pages together with a bundle of
statutory materials and authorities of similar proportions. It is also worth recording that the witness
statements filed on behalf of Dr Karwal and the exhibits to them were made with
the assistance of Messrs Clyde & Co.
It is, therefore, reasonable for us to conclude that all relevant
matters at Dr Karwal’s disposal were before us.
92. The difficulty with the
evidence filed on behalf of Dr Karwal is that, apart from dealing with her
clinical competence (which is not in dispute) and previous difficulties with
WKHA and the PCT (which are of no relevance once we have found that the DMG
meeting was conducted free from bias or that any bias would have been cured by
this appeal) all that remains is the assertion that the findings of Mackay J
were wrong. It is not, however, open to
us to go behind those findings, even if we were convinced they were wrong
(which we are not).
93. We have no doubt that the
lack of probity involved in carrying out a sustained campaign of fraud, whether
measured against the considerations listed in Regulation 11 (2) of the National
Health Service (Performers Lists) Regulations 2004 or on the basis of common
sense, is sufficient to render a general practitioner unsuitable for her work
as such. That seems to us to be part of
the price of professional membership described by Sir Thomas Bingham MR in Gosai.
94. We see the force of Mr Moon’s
submissions in relation to efficiency. Kataria
was, however, a case on very different facts raising different regulatory
questions. In circumstances in which
the PCT expressly disavows any criticism of Dr Karwal’s clinical skills, did
not make a finding of inefficiency at the DMG, where the only evidence relevant
to her clinical efficiency is her satisfactory performance review and the
Departmental Guidance in relation to efficiency is described by Mr Moon as
“misleading” we believe it would insult to injury to make a finding of
inefficiency.
95. We were not asked to
decide whether the proceedings before us are subject to Article 6 of the
European Convention on Human Rights and accordingly we do not decide the
point. Although we have decided the
question of Dr Karwal’s suitability afresh we should make it plain that in our
judgment the proceedings and decisions of the DMG were both proportionate and
fair and reasonable.
96. Whilst we accept the
overlap between the grounds of efficiency and unsuitability, we think it right
in the circumstances of this case to deal with them separately as far as
possible. Whilst, if the PCT had chosen to proceed on the efficiency ground
alone, we should and would have taken evidence relating to the appellant’s probity
into account, where (as here) the PCT chooses to pursue both efficiency and
unsuitability it seems to us logical and fairer to Dr Karwal to treat them as
if distinct. Otherwise one would add
little or nothing to the other.
97. For all these reasons the
Panel unanimously finds that Dr Karwal is unsuitable to be included on what was
at the time of the application the PCT’s Performers List and dismisses her
appeal in relation to the unsuitability ground.
98. In its skeleton argument
dated 29 September 2005 the PCT asked the Panel to make an order for National
Disqualification. During the course of
argument we refused to deal with that application, if a finding were made against
Dr Karwal, for two reasons.
99. First, she would have
received the skeleton giving her notice of the application only on 4 October
and, second, it appeared to us that it would not be sensible or fair to either
party to deal with it before seeing these detailed reasons.
100. Accordingly the question
of National Disqualification will be considered at 10am on 27 October 2005 at
the Care Standards Tribunal. By letter
dated 6 October 2005 the FHSAA notified Dr Karwal of this and very strongly
recommended her to attend.
101. We direct that a copy of
this decision be sent to the persons and bodies referred to in Regulation 47 of
the Family Health Services Appeal Authority (Procedure) Rules 2001.
102. Any party to these
proceedings has the right to appeal this decision under and by virtue of
Section 11 of the Tribunals and Inquiries Act 1992 by lodging
notice of appeal in the Royal
Courts of Justice, The Strand, London WC2A 2LL within 14 days from receipt of
this decision.
………………………….
Mark Mildred
Chair of Appeal Panel
10 October 2005