Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the First-tier Tribunal (made on 7 April
2011 at Field House under reference PHL/15335) involved the making of an error
in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the
Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the
tribunal for rehearing by a differently constituted panel.
DIRECTIONS:
A.
The tribunal must undertake a complete reconsideration of the issues
that are raised by the appeal.
B.
In particular, the tribunal must identify any relevant factors that it
has to take into account, resolve any disputes on matters of fact material to
those factors, and conduct a balancing exercise to decide if Dr M should be
removed from the list. It must set out those factors, record its findings of
fact together with the reasons why it made them, and explain how it analysed
their overall effect.
Reasons
for Decision
A.
History and background
1.
The appellant is Dr M. The respondent is Trafford Primary Care Trust
(the PCT). The PCT removed Dr M from the list under regulation 10(3) and (4)(a)
of the National Health Service (Performers Lists) Regulations 2004 (SI No 585).
Dr M appealed against that decision to the First-tier Tribunal, but the
tribunal dismissed his appeal. I gave him permission to appeal to the Upper
Tribunal.
2.
I do not need to repeat the sequence of events that led to this
decision. They are set out accurately in the First-tier Tribunal’s decision. It
is sufficient to say that they date back to a prescription issued by Dr M when
a locum doctor. He prescribed amoxicillin for a patient whose records showed
that she was allergic to penicillin. He did discuss the medication with the
patient, but their accounts of the discussion differ. He says he asked if she
was allergic to penicillin; she says he only asked her about allergy to
antibiotics, which she did not associate with penicillin. Either way, she
developed a rash after taking the medication while on her honeymoon. It is not
possible to say that the medication caused the rash, because she had previously
been prescribed amoxicillin without ill effect. There followed complaints to
the PCT, the General Medical Council, the Health Services Ombudsman and the
Healthcare Commission. Dr M did not engage as fully as he might in those
proceedings, although he has put forward an explanation for some of his lack of
involvement.
3.
The appeal to the First-tier Tribunal was heard on the papers without an
oral hearing. The tribunal’s reasons cover six pages. They set out the legal
framework, summarise the evidence, set out Dr M’s account and end with the
tribunal’s consideration. This final section covers just over a page. The
tribunal resolved some issues of dispute, but not all. The final section of the
reasons amounts to a sustained criticism of the doctor’s conduct following the
prescription of amoxicillin.
B.
the legislation
4.
Regulation 10(3) and (4)(a) of the 2004 Regulations provide:
10 Removal from performers
list
…
(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”); …
Regulation 11(5) and (6) provide for the factors to be taken
into account:
11 Criteria for a decision
on removal
…
(5) Where a Primary Care
Trust is considering removal of a performer from its performers list under regulation 10(3) and (4)(a) (“an efficiency
case”), it shall–
(a) consider
any information relating to him which it has received in accordance with any
provision of regulation 9;
(b) consider
any information held by the Secretary of State as to any record about past or
current investigations or proceedings involving or related to that performer,
which information he shall supply, if the Trust so requests; and
(c) in
reaching its decision, take into account the matters referred to in paragraph
(6).
(6) The matters referred to
in paragraph (5)(c) are–
(a) the
nature of any incident which was prejudicial to the efficiency of the services,
which the performer performed;
(b) the
length of time since the last incident occurred and since any investigation
into it was concluded;
(c) any
action taken by any licensing, regulatory or other body, the police or the
courts as a result of any such incident;
(d) the
nature of the incident and whether there is a likely risk to patients;
(e) whether
the performer has ever failed to comply with a request to undertake an
assessment by the NCAA on or before 31st March 2005 or thereafter by the NPSA;
(f) whether
he has previously failed to supply information, make a declaration or comply
with an undertaking required on inclusion in a list;
(g) subject
to paragraph (9), whether he has been refused admittance to, conditionally
included in, removed or contingently removed or is currently suspended from any
list or equivalent list, and if so, the facts relating to the matter which led
to such action and the reasons given by the Primary Care Trust or the
equivalent body for such action; and
(h) whether
he was at the time, has in the preceding six months been, or was at the time of
the originating events a director of a body corporate, which was refused
admission to, conditionally included in, removed or contingently removed from,
any list or equivalent list, or is currently suspended from any such list, and
if so, what the facts were in each such case and the reasons given by the
Primary Care Trust or equivalent body in each case for such action.
C.
analysis
5.
I have set the tribunal’s aside, because its findings and reasons are
inadequate to justify its decision to confirm Dr M’s removal under regulation
10. This is why.
6.
First, regulation 11 provides for the factors to be taken into account.
They are not comprehensive, so the tribunal is not limited to them. Nor will
they all necessarily be relevant, so the tribunal does not have to consider
ones that do not arise in the particular case. What the tribunal must do is
form a balanced judgment of the overall and combined effect of the factors that
are relevant. It may have done that in this case, but its reasons do not show
it. The tribunal’s reasons contain pretty much all that can be said against Dr
M, but nothing in his favour. The tribunal had to take account of factors in Dr
M’s favour and there were such factors. For one, the sequence of events all
stemmed from one prescription. For another, there was the doctor’s previous
record of efficiency. Then, there was the doctor’s clinical record and the
likely risk to patients. I do not intend this to be exhaustive, merely
illustrative. The tribunal’s reasons are inadequate for failing to show how it
took into the balancing exercise the factors in Dr M’s favour.
7.
This links to the purposes that reasons fulfil. One purpose is to allow
the party who has lost to understand why. When applying regulation 11, that
requires more than setting out the case against the party. It involves setting
out how the tribunal balanced the factors for and against the removal of the
doctor. Specifically, the tribunal in this case failed both to identify the
factors in Dr M’s favour and to show how it had assessed their overall
significance in conjunction with other factors. Those are essential elements in
any explanation to Dr M of why the tribunal dismissed his appeal, but they are
missing in this case.
8.
Second, the tribunal did not make the necessary findings of fact to
provide a foundation for its application of regulation 11. In order to
undertake the balancing exercise that I have mentioned, the tribunal must not
only identify any relevant factors, but must also resolve any conflicts in the
evidence relevant to those factors. In this case, there were some factual
disputes. This was directly relevant to regulation 11(6)(d) – the nature of the
incident and likely risk to patients. If penicillin was actually discussed,
there is no evidence of any clinical risk for patients. Also important was the
dispute about the discussion with the patient before Dr M prescribed
amoxicillin. If Dr M had expressly asked the patient about penicillin, that might
help to explain and, perhaps, to some extent to mitigate his reaction to the
subsequent proceedings.
D.
the pct’s submission to the Upper Tribunal
9.
The PCT has responded to this appeal. However, its submission
essentially repeats its opening statement to the First-tier Tribunal. It
largely states the history of the case and does not address the issue whether
the making of the decision by the First-tier Tribunal involved the making of an
error on a point of law: section 12(1) of the Tribunals, Courts and Enforcement
Act 2007. It does not contain any relevant points that I need to deal with in
this decision.
E.
final words
10.
As the tribunal did not make the necessary findings or give adequate
reasons, I have set aside its decision. The experience of the specialist
members of the First-tier Tribunal will be relevant in assessing Dr M’s
efficiency, so I have directed a rehearing rather than re-make the decision. Nothing
that I have said should give any indication of the proper outcome for the
rehearing, because I have not formed any view on that issue.
11.
Dr M has represented himself before both the First-tier Tribunal and the
Upper Tribunal. It might assist him to obtain legal representation for the
rehearing. That would allow his case to be presented more objectively. The
First-tier Tribunal will also benefit from his answers to their questions if he
were to attend an oral hearing.
|
Signed on original
on 28 September 2011
|
Edward Jacobs
Upper Tribunal Judge
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