IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY

REF: 10634

BETWEEN

DR A U KHAN

Appellant

and

DONCASTER WEST PRIMARY CARE TRUST

Respondent

DECISION OF THE PANEL SITTING ON SEPTEMBER 9^TH 2003

1. On 2.9.02 Dr Khan applied to the Respondent PCT for inclusion on their General Medical Services Supplementary List (“the List”). This application was refused. Dr Khan has appealed against this refusal. Both parties wish the panel to make a determination upon the papers only. Consequently the panel has not heard any oral evidence.

2. The PCT requested guidance from the Panel upon whether they had submitted enough information to enable the Panel to make a decision. The Panel considered this request some weeks prior to the hearing itself and decided (unanimously) that no further information was required.

3. A summary of the background

The papers in this matter are contained in a paginated bundle. This decision refers to documents within the bundle.

1971 Dr Khan began working at the practice in Denaby Main. Later he opened a surgery in Warmsworth

18.1.01 PCT wrote to Dr K informing him that a number of areas of his practice fell short of the standard expected. An action plan was enclosed.

20.9.01 A daylong practice assessment was carried out by PCT local assessment team instigated by the Good Medical Practice Group.

31.12.01 PCT wrote to Dr Khan in relation to a discussion which took place on 7.12.01 and describing areas needing urgent attention

12.1.02 PCT met with Dr Khan to discuss Action Plan of 18.1.01

21.5.02 PCT wrote to Good Medical Practice Group detailing outstanding matters. PCT confirmed that Dr K had provided a letter of resignation.

2.9.02 Dr Khan applied for inclusion in the List from 1.10.02

30.9.02 Dr Khan retired from full time practice as GP.

1.10.02 PCT informed Dr Khan that South Yorks Health Authority Reference Committee had decided that his application should be referred to National Clinical Assessment Authority (“NCAA”) for them to assess his fitness to practice.

21.10.02 Dr Khan wrote to PCT to state his disagreement with 4 areas of concern in PCT’s letter of 1.10.02 (including “general concern over fitness to practice”) and requested further details

3.3.03 Dr Khan wrote to the NCAA, discussed his denial of the allegations and his concerns regarding the PCT and NCAA actions and procedures

27.5.03 PCT wrote to Dr Khan informing him of the decision to refuse his application to join the List on grounds of efficiency and unsuitability, concerns regarding some of his clinical practices and prescribing, and his non compliance with NCAA assessment

5.6.03 Dr Khan appealed to FHSAA

4. The PCT’s reasons for refusal to include Dr Khan on the List:

The PCT says (D3) that Dr Khan has failed to respond to advice and guidance over many years regarding a range of issues. They accept that some of the concerns would not be relevant to a locum GP but prescribing, concerns over clinical practices and professional development would. The PCT claims that Dr Khan did not follow the guidance of the PCT and meet with the NCAA. The PCT refer to evidence around prescribing, targets and the report of the assessment commissioned by the Good Medical Practice Group. The PCT says progress has been limited and that Dr Khan has often failed to understand the issues or accept any responsibility for the management of his service or suitability of the facilities he offered a service from.

5. We have divided these arguments into 4 sections:

a). Prescribing

b). Clinical practices

c). Professional Development

d). NCAA referral

6. We assume that the PCT rely upon Regulation 6 (1) (a) and (e); ie that the PCT consider Dr Khan to be unsuitable to be included in the list, that admitting him to the list would be prejudicial to the efficiency of the service he would undertake.

In their undated statement attached to their letter of 16.6.03 (D1-2) the PCT have not expressly indicated which part of Regulation 6 they rely upon. The decision of the meeting of the Reference Committee was that refusal should be on the grounds of both unsuitability and efficiency (D55-56).

7. Dr Khan’s case

Dr Khan has provided a number of detailed letters; in particular his letter of 11.11.02 (K3-11) sets out his response to the PCT. The essence of his argument is that he has applied for admission to the List so that he can do occasional locum work, which has little to do with the running of a practice. He asserts that the PCT’s complaints have no relevance to his ability to provide short term locum work.

8. The Law

In reaching our decision the Panel have considered the NHS (General Medical Services Supplementary List) Regulations 2001. These regulations concern the lists published by PCT of all doctors approved by the PCT for the purposes of assisting in the provision of general medical services.

We have kept at the forefront of our minds that this is application is to enable Dr Khan to assist in the provision of medical services as opposed to an application to be a principal.

Once an application is made by a doctor, the PCT may refuse to include a doctor on the List under grounds set out in Regulation 6. The PCT must consider all facts which appear to it to be relevant (reg 6 (4)).

The doctor may appeal to the FHSAA against a refusal to include his name in the list. (reg 15). On appeal the FHSAA may make any decision which the PCT could have made (reg 15.3)

9. The Panel’s decision

It is the unanimous decision of the panel that Dr Khan’s appeal should be allowed and that his name should be included on the Supplementary List subject to the condition that Dr Khan do follow all protocols, systems and practices which are established by any principal whom he may assist from time to time, and in particular that Dr Khan do follow the principal’s protocols, systems and practices for prescribing medication.

10. Reasons for the decision

a). Prescribing

• On 18.1.01 Dr Burroughs of the Primary Care Group wrote to Dr Khan following their meeting. She sets out a number of areas where it was said that his practice fell short of the standard expected. The Panel notes that prescribing was not felt sufficiently important to be included in the action plan attached to the letter (D9-12)

• The Good Practice Group carried out an assessment of the practice and reported on 20.9.01. The conclusion of the Group in relation to prescribing (D23-24) was “ the team had serious concerns about the lack of a system and/or protocol for handling repeat prescribing”. In the recommendations of the whole assessment – 3 were of highest importance namely premises, staff and repeat prescribing (the Panel notes not “prescribing” per se but “repeat prescribing”). The recommendation was that a safe and proper system should be introduced.

• The panel are of the view that the criticisms in September 2001 were about the systems/protocols which Dr Khan (a GP principal) had in place. The Panel believe that this would be a highly relevant concern for a principal but not a locum.

• On 31.12.01 letter was sent to Dr Khan from Mike Potts (PCT) in relation to a meeting on 7.12.01. This concerned prescribing – again the emphasis was on systems and processes for managing prescribing.

• In any event it is noted that at a meeting on 12.2.02 to discuss the action plan of January 2001, it appears that the questions of prescribing was not raised. (D43-44)

• By 21.5.02 the PCT were of the view that progress was being made around prescribing, albeit only marginal (D41-42). It is noted that in May 2002, knowing that he planned to retire 4 months later, the PCT were not so concerned about his prescribing that they felt that Dr Khan should be prevented from running a sole practitioner General Practice for the following 4 months.

• Given that a locum GP would not be formulating systems and protocols, but would be following established systems, the Panel does not believe that the criticism of Dr Khan in relation to prescribing is a relevant factor to prevent his inclusion on the List.

b). Clinical practices

• On 18.1.01 Dr Burroughs of the Primary Care Group wrote to Dr Khan following their meeting. The letter addresses administrative/ management matters and the meeting of targets as opposed to medical practice. The action plan at D12 contains nothing relevant to the medical practice of a locum GP.

• The Good Practice Group carried out an assessment of the practice and reported on 20.9.01. Under the heading “clinical practices” the concerns are largely about administration and management. The conclusion under the heading “clinical practice” is of concerns about protocols, systems and targets. In the recommendations of the report (D28), the 3 matters of highest importance are premises, staff and repeat prescribing. All other issues, although of importance, are said to be addressed in time.

• Achieving targets is the responsibility of the practice (per Mike Potts Chief Executive of the PCT - D58). If Dr Khan were assisting in the provision of medical services he would assist the principal to meet the targets in a way formulated by the principal.

• In this letter of 28.4.03 (D57-60) the Chief Executive does not make any complaint about Dr Khan’s medical practice; he says that the relevant issues are clinical practices, prescribing and continuing development.

• The Panel were impressed by the fact that there were not any reports of any patient having complained about Dr Khan’s medical ability and practice.

• The Panel were of the view that the papers produced did not disclose any relevant concern in relation to Dr Khan’s clinical practice, bearing in mind his application is to join the Supplementary List.

c). Professional Development

• The Panel notes that the PCT use Personal/Professional Development interchangeably eg in the statement in response to the Appeal the phrase “professional development” is used, yet in the minutes of the 21.5.03 meeting of the Reference Committee the phrase “Personal Development” is used. It is assume that they have the same meaning.

• In the action plan of 18.1.01 (D12) the preparation of a Personal Development Plan (“PDP”) was a medium priority. We were not told what proportion of GPs do have a PDP.

• The Good Practice Group report dated 20.9.01 does not mention the need for a PDP.

• The Panel notes that Dr Khan is licensed to practice as a GP.

• The Panel endorse the fact that every doctor should meet the ongoing continuing medical education requirements of the GMC and his professional college. The Panel has no information from the PCT that Dr Khan is not maintaining continuing medical education.

• Dr Khan says in his letter 11.11.02 (K7-8) that he has attended more PGEA meetings than required to do and that the records are with the PCT. The PCT has not commented upon his claims.

• The Panel is of the view that the concern about the lack of personal/professional development is not well founded.

d). NCAA

• On 1.10.02 a letter was sent by Mike Potts of the PCT (D64) informing Dr Khan that his application for inclusion to the List would be deferred pending referral to NCAA for them to “assess your continued fitness to practice”.

• In his letter of 21.11.02 Mr Potts says that the purpose of the NCAA is to provide assessment and support where there are concerns about “clinical competence”.

• The Panel is of the view that it was not unreasonable for Dr Khan to refuse to participate in the NCAA assessment.

• Dr Khan knew by October 2002 that the PCT’s concerns had been largely about management and administrative issues as set out in the Action Plan at D12. He knew that he was allowed to practice as a sole practitioner GP for 5 months after announcing retirement in May 2002. He knew that in September 2001 the Good Practice Group had recommended that consideration be given to him being a salaried GP with the management of his practice being taken over by the PCT.

• When deciding whether to cooperate with the NCAA Dr Khan knew that the PCT had referred him due to matters of clinical competence. He also knew that there was nothing in the previous assessments that would relate to his clinical competence as a locum.

• Dr Khan knew that he only wished to join the Supplementary List and to assist in the provision of medical services. He would have been aware that the issues raised by the PCT in the meetings in January 2001 and September 2001 did not relate to his fitness to practice as a locum.

• The Panel believes that in the light of the areas of complaint raised by the PCT over the preceding 2 years (management/staff/premises/targets/systems and protocols for prescribing/PDP), it is reasonable that Dr Khan did not understand the rationale for the referral to NCAA (clinical competence) and that he did not wish to proceed with it.

• The Panel is of the view Dr Khan’s lack of cooperation with the NCAA referral is not a relevant factor, when considering his application for admission to the Supplementary List.

11. Generally

a) The Panel noted that in September 2001 (D29) the Good Medical Practice Group said that consideration could be given to Dr Khan being offered a salaried GP post until he retired 3 years later. The PCT could then take over the management of the practice. It seemed to the Panel that this recommendation highlights the area of concern to be management/administrative rather than medical, otherwise such a recommendation for him to be a salaried GP would not have even been made. By implication his clinical competence was acceptable but his managerial methods were not

b) By May 2002, when Dr Khan made the decision to retire as a principal, he was still considered by the PCT to be a GP who could remain in sole practice until retirement in at the end of September 2002 inferring that the PCT must have felt he was safe enough to be a principal in this period.

c) The PCT has produced no evidence of complaints from patients over Dr Khan’s 30 year career as a GP (except the complaint by a patient to the Environmental Health Dept about the tenant of the upstairs flat; Dr Khan did not rent out the flat again). The minutes of Reference Committee meeting on 21.5.03 said that there was no information available about complaints, but that complaints had not led to the 2001 assessment.

d) Dr Khan says (K1) that in 30 years from 1971 to 2001 he had no problem with the Health Authority.

e) References were available to the Reference Committee on 21.5.03, but not produced to the Panel. The comment was made that “his references did not say a lot about his clinical competence and were from Doctors in hospitals”. The Panel assumes that the references were supportive, otherwise the minutes would say so. It appears from the comments about “doctors in hospitals” that the Committee did not have high regard for references from medical clinicians in hospitals. The Panel comments that a sole practitioner GP is likely to have more professional contact with hospital doctors than with other GPs.

f) The PCT (and therefore the Panel) when it takes into consideration all of the relevant facts, must consider the overall effect of all the matters being considered.

g) The Panel are of the view that the overall effect of the relevant facts is that, provided that Dr Khan agrees to the condition imposed upon him, that he is suitable to be included on the Supplementary List, and to do so would not be prejudicial to the efficiency of the service which he would undertake.

12. Any party to these proceedings has the right to appeal this decision under and by virtue of section 11of the Tribunals and Inquiries Act 1992

Dated 2nd October 2003

Miss Michelle Corbett – Chairman

Prof C Clark

Mr Colin Barnes