Ms Judith Crisp Chair
Dr P Wray Professional
Mrs J Everitt Member
Ms Diana Garcia Merino
(GDC No: 100862)
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DECISION AND
REASONS
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Appeal by the Appellant pursuant to Paragraph 15(1) of the National Health Service (Performers List) Regulations 2004 against the decision made by Dudley South PCT to refuse admittance to the List under Section 6(1)(b) of the said Regulations.
Appeal Dismissed.
1. The Appeal was heard by Mrs J Crisp (Chairman); Dr P Wray (Professional); and Mrs J Everitt (Lay Member)
2. All three Panel Members confirmed that they had no prior involvement or knowledge of the case. The case proceeded on paper only with both parties having agreed that the matter should proceed without an oral hearing pursuant to the Family Health Services Appeal Authority (Procedure) Rules 2001, Section 38.
History
3. On 23rd November 2005 an application was received from the Appellant for inclusion in the Respondent’s Dental Performers’ List.
4. On 24th November 2005 clinical references were requested from A.B.C (Vice-Chancellor of the European University of Madrid) and I.P..
5. On 3rd January 2006 the PCT, at the request of the Appellant, sent a further reference request to I.P.. On 6th January 2006 the Appellant forwarded details of alternative names for the purposes of obtaining a clinical reference. Three further names were forwarded. The PCT wrote to all three persons.
6. On 18th January 2006 a reference was received from A.B.C.
7. On 14th and 24th January 2006 an email and letter respectively were received from M.H.S.. No details of that person was held on the PCT file. On 17th and 23rd January 2006 the PCT received an email reference and letter from M.P.R..
8. On 9th February 2006 the Respondent wrote to the Appellant querying in what capacity the said person M.H.S. was known and also her status. The Appellant confirmed that M.H.S. was a fellow student. The Appellant was advised that a reference from a fellow student was not acceptable.
9. On 13th February 2006 the Respondent received a further fax from the Appellant with six further names from the University of Madrid. The Appellant was contacted by the Respondent who advised that all of the persons named on the list were people who had supervised her training.
10. On 20th February 2006 three further referees were contacted; I.D.S.; C.B.V. and R.C.C..
11. On 6th March 2006 C.B.V. forwarded a reference by email and was asked to submit a signed copy by post. That copy was received on 17th March 2006.
12. On 8th March 2006 a further telephone conversation took place between the Appellant and the Respondent querying in what capacity the names on the fax were known to the Appellant and what their status was. The Appellant confirmed that she did not understand what was being explained to her and was advised that the contract number would not be issued until all checks had been satisfactorily completed.
13. On the same day references were received by facsimile by the Respondent from Dentists employed at The H.D.S. where the Appellant was working, being J.S. and S.R..
14. The Respondent advised the Appellant that the references would not be accepted as clinical references due to the fact that they have to be in connection with two recent posts which have lasted for a period of at least three months without a significant break and where this is not possible a full explanation is required. No explanation was received. The references were for a period of two months only.
15. On 14th March 2006 the Respondent received three identical references from I.D.S., C.B.V. and R.C.C.
16. On 22nd March 2006 the Local Counter Fraud Specialist was advised as to the situation due to the fact that the signature on one letter was completely different from the signature on a letter purporting to be from the same person.
17. Letters were sent to A.B.C. by the Local Counter Fraud Specialist on 22nd March 2006 and 25th April 2006 seeking clarification. No response was received to either letter.
18. On 16th May 2006 C.B.V. confirmed that she had sent two references, one by email and one by mail. On 17th May 2006 the Respondent received an email from C.B.V. with a scanned signature.
19. On 3rd May 2006 the Local Counter Fraud Specialist completed a report raising concerns as follows:
i) Three of the references contained exactly the same wording;
ii) The header on these three references appeared to have been copied or downloaded from the University of Madrid website;
iii) Two references were from the same person but the signature was different.
20. The Local Counter Fraud Specialist confirmed that they had not been able to obtain confirmation as to the validity of the references having written to the Rector of the University, as no response had been received. Suspicion therefore of the authenticity of the references remained, however fraud would be difficult to prove as statements would need to be taken from the referees and difficulties would arise due to the distance involved.
21. On 18th May 2006 the Dudley Beacon and Castle PCT FHS Functions Committee met and refused the Appellant’s application to join the Dudley South Dental Performers’ List on the grounds that she had failed to provide appropriate references and the validity of the references received had been brought into question. Concern was raised by the Respondent that one of the references was not genuine and therefore brought into question the validity of the other references received. The signature of the Vice-Chancellor has matched the signature on the University Certificate. The references from the Appellant’s working colleagues appear to have been written by someone who is not fluent in the English language, however this was not investigated.
22. Bearing in mind all of the above the Application was refused.
The
Appeal
23. The Appellant, in answer to the papers raised in respect of the Appeal stated that she had not faked any reference letters. If there was a suggestion that the letters were downloaded from the Internet then somebody should show her the web page from which the letters were downloaded.
24. Insofar as the signatures from C.B.V. were concerned, she stated “I think I used just one, I cannot swear that point but I am almost sure”. The Appellant confirmed that she spoken directly to C.B.V. who advised her that she was in doubt as to how many times she had sent a reference letter. The Appellant stated this was a serious accusation to suggest that the signatures were different and one of them appeared to be that of Diana Garcia. The Appellant demanded proof of that accusation.
25. Whilst three of the references contained exactly the same wording, in the Appellant’s view this might be because the teachers did not speak English as a first language and therefore they may have thought about doing it in the easiest way possible for all of them.
26. Concerning the two references which appeared to have been written by somebody who is not fluent in the English language, the Appellant stated that S.R. did not say anything about it and J.S. said “Initially the English language has restraint to effective patient communication. This is no longer the case”.
27. The Appellant completed her evidence by confirming that she intended to leave the U.K. until the problem was solved and that she could refute every point for which the Respondent denied her the contract number. The accusations were not strong, nor were they based on real facts.
FINDINGS
28. The initial references from M.H.S. and M.P.R. were from students. This was ill advised and inappropriate. The Panel accepts that at this stage the Appellant may not have been fully aware of having to provide clinical references.
29. Over a period of some four months from 25th November 2005 to 17th March 2006 the Respondent PCT sent numerous letters both to the Appellant and also to various named referees whom the Appellant had provided for the purposes of supporting her application.
30. The Panel accept that on 8th March 2006 the Appellant was confused when asked by the Respondent in what capacity she knew the people listed on her fax as this information had already been provided pursuant to the telephone conversation which took place between the Appellant and the Respondent on 13th February 2006.
31. On 8th March 2006 two references were received from the Surgery at which the Appellant was working, namely The H.D.S.. The Panel query the veracity of those references. There is a query in respect of the wording :
“I am writing a clinical reference for Dr Diana Garcia Marino. She is a very clinical competent dentist. This is a very good dentist in all areas of patient care” – J.S.
“I am writing concerning the inclusion of Dr Diana Garcia Marino onto the list of NHS Dentists to allow her to get her contact number and stamp” – S.R..
The Panel find that the wording in those references is not that which you would expect from someone who was providing a clinical reference for the purposes of supporting an application for inclusion in the Performers’ List. In the absence of any corroboration from the Counter Fraud Specialist the Panel are not prepared to make a finding that these references are fraudulent.
32. The Panel are disappointed that the Counter Fraud Service did not contact either of the two named referees to check the references, especially on the basis that the Counter Fraud Service themselves queried the content of those references.
Both referees were working at The H.D.S. with a telephone number written on the reference. The Panel are concerned that neither of those referees were checked in the light of the concerns raised by the P.C.T.
33. The Appellant has not provided an explanation on the basis that the references supplied were for two months not the requisite three and it therefore follows that neither of those references constitutes a clinical reference in accordance with the requirements of the Act.
34. The Panel find that the letters written from the University of Madrid, namely C.B.V., I.D.S. and R.C.C., all received on 14th March 2006, worrying. The Panel find that the logo which was used on that correspondence is completely different from the correspondence received from the Vice-Chancellor. The logo on the former correspondence is similar to that found on the University Website.
35. Neither I.D.S. nor R.C.C. responded to the initial letter or email forwarded to them from the Respondent. The Panel are concerned, in the light of no previous response from two out of the three referees whom the Respondent contacted, that three letters with exactly the same content then arrive at the P.C.T. on the same day.
36. The Panel found that the signatures on the two references from C.B.V received by the P.C.T on 14 and 17 March 2006 are clearly different
37. C.B.V. confirmed that she had sent one electronic reference and had posted one letter. Later C.B.V. supplied a further copy of her signature.
38. The Panel believe that the letter received by the Respondent on 14th March 2006 in all probability was not sent by C.B.V. but are not prepared, due to the high standard of the burden of proof, to find that the letter was fraudulently written by the Appellant.
39. The Panel also find that due to the questions raised in respect of that reference it brings into doubt the authenticity of the two other identical references received on the same day.
40. The Panel accept that the reference from A.B.C, the Vice-Chancellor and Rector of the University, is valid. However the Panel find that this reference is not a clinical reference. The Rector appears to be neither a clinician nor a close supervisor of the Appellant’s training, who had direct knowledge of her clinical practice.
41. The only valid clinical reference which has been provided by the Appellant therefore is that received on the 17th March 2006 from C.B.V.
42. The Panel also find that the Appellant has been given ample opportunity over a long period of time to provide the necessary references.
LAW
43. Under 4(2)(f) of the National Health Service (Performers’ List) Regulations 2004 (“the Regulations”), on an application by a Dentist for inclusion in a Performers’ List, names and addresses of two referees, who are willing to provide clinical references relating to two recent posts (which may include any current post) as a Performer which lasted at least three months without a significant break, and, where this is not possible, a full explanation and the names and addresses of alternative referees.
44. 6(1) of the Regulations: The grounds on which a Primary Care Trust may refuse to include a Performer in its Performers’ List are, in addition to any prescribed in the relevant part, that
b) having contacted the referees provided by him under Regulation 4(2)(f), it is not satisfied with the references.
CONCLUSIONS
45. The Panel find that, for the purposes of Section 6(1)(b) of the said Regulations, the Appellant has failed to provide the names and addresses of two referees who are willing to provide a clinical reference relating to two recent posts (which may include any current post) as a Dentist, which lasted at least three months without a significant break, and where this is not possible a full explanation and alternative referee.
46. The Panel find that the Respondent was justified in refusing the Appellant’s application on that ground.
47. Accordingly the Panel uphold the Respondent’s decision and refuse the Appellant’s Appeal.
48. The Panel request that a copy of this decision is sent to the Central Licensing body for dentists in Spain and/or the appropriate Professional Registration body in Spain.
APPEAL
49. Finally, 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 receipt of this decision
Dated this …. day of ……………… 2006.
………………………..
Judith R Crisp
Chairman