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England and Wales Care Standards Tribunal

You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Appiah-Anane v National Care Standards Commission [2002] EWCST 0096(NC) (5 March 2003)
URL: http://www.bailii.org/ew/cases/EWCST/2003/0096(NC).html
Cite as: [2002] EWCST 96(NC), [2002] EWCST 0096(NC)

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Appiah-Anane v National Care Standards Commission [2002] EWCST 0096(NC) (5 March 2003)

Published decisions of the CST

IN THE CARE STANDARDS TRIBUNAL
BETWEEN:-	MR SAMUEL APPIAH-ANANE	Appellant
	and
	NATIONAL CARE STANDARDS COMMISSION	Respondent
	2002.0096.NC

Before

David Hershman QC, Chairman
David Cook
Graham Harper

Sitting at the Social Security Appeals Tribunal, 36 Dale Street, Liverpool, L2 5UZ
On the 4^th and 5^th days of March 2003

The Appellant was unrepresented

The Respondents were represented by Tanya Griffiths (counsel) and Emma Corneh (NCSC) Alan Mowat (solicitor) and Emma Digiacomo (assistant solicitor)

The appeal

The Appellant is the Principal Oral Surgeon of the Garston Dental Clinic who wishes to register the Clinic so that general anaesthesia may be provided there.

By a letter dated the 5^th April 2002 (page 31 bundle) the Appellant gave notice to the Liverpool Health Authority of a wish to appeal against the decision to refuse his application for registration of the "Garston Dental Clinic" which was notified to him by a letter dated the 28^th March 2002.

Following the establishment of the National Care Standards Commission on the 1^st April 2002 the Appellant wrote, by a letter of the 5^th April 2002 giving notice of intention to make representations. A representations hearing was conducted on the 4^th September (by the Regional Director of the National Care Standards Commission) and a decision made to reject the application for registration. By a letter dated the 16^th September 2002 (page 153 bundle) the Appellant gave notice to the Care Standards Tribunal of his wish to appeal this decision.

The Notice of Appeal states

"(A) The Garston Dental Clinic satisfies both the letter and the spirit of the Department of Health Regulation (By the Chief Dental Officer – Dame Margaret Seward) of 31/5/01 which stipulates that general anaesthesia for dentistry should be at (1) a hospital setting ; (2) (with) critical facilities

(B) That "Location" (upon which the commission made its decision) was not a relevant factor"

A "Response" (page 65) was provided to the Tribunal by the National Care Standards Commission. Documentation was filed with the Tribunal and directions were given by the President, His Honour Judge Pearl dated the 9^th December 2002 (page 499).

The Tribunal heard this appeal over two days on the 4^th and 5^th March 2003 and was able to announce its decision on the 5^th March 2003 stating that reasons would be given later.

The following witnesses were called to give evidence :

For the Respondent : Mrs Ann Ford, Dr Dympna Edwards, Dr Potter and Dr Nigel Entwistle. Additionally a statement was filed on behalf of Mrs Joanne Forrest the Chief Executive of the Liverpool Primary Health Care Trust. Her attendance was not required by the Appellant.

For the Appellant : the Appellant, Dr Mario Calleja and Dr John Harrison gave evidence. A statement from Dr Bricker was filed shortly before the hearing.

History

The Appellant is an oral surgeon practising from the Garston Dental Clinic, Liverpool. For a number of years up to December 2001 as part of this practice when carrying out extractions of teeth, general anaesthesia was undertaken. This was administered by one of two Consultant Anaesthetists, Dr Calleja or Dr Harrision. In a weekly morning clinic as many as twelve procedures under general anaesthesia were undertaken.

Following the issuing of guidance from the Department of Health, dental practices around the country ceased to undertake procedures under general anaesthesia. Such procedures were either undertaken under local anaesthetic or were undertaken under general anaesthetic in hospital.

The Appellant wished to continue to offer the service of procedures under general anaesthetic and indicated that desire to the Health Authority. As part of the process of change in arrangements for dental practices, it became necessary to seek and obtain registration for a dental practice to carry out procedures under general anaesthetic.

On the 19^th October 2001 the Appellant’s application for registration with appropriate fee was lodged with the (then) registration authority, the Nursing Homes Committee established by the Liverpool Health Authority.

A "briefing meeting" was held on the 16^th November 2001 attended by a number of officers of the authority. Dr Dympna Edwards (Consultant in Dental Public Health) and Mr Cassidy (General Dental Practice Adviser) were authorised to carry out the appropriate inspections.

On the 20^th December 2001 a site visit was made to the Garston Dental Clinic.

A formal "fit person" interview was conducted on the 22^nd January 2002 and there were no concerns in relation to the Appellant (page 24). Details of the visit were recorded in a note (page 23).

On the 28^th January 2002 a Nursing Homes Committee was convened but the decision in relation to the application was adjourned for the attendance of Dr Edwards (page 26).

A further meeting was convened on the 13^th March 2002. Evidence was given by Dr Edwards to the effect that the application should be rejected on the basis (only) of the location of the Garston Dental Clinic. The Committee accepted the recommendation of Dr Edwards and refused the application for registration on the ground of location (page 28).

Notice of the decision of the committee was communicated to the Appellant by a letter dated the 28^th March 2002 (page 30).

By a letter of the 5^th April 2002 the Appellant notified the authority of his wish to appeal the decision.

A representations hearing was conducted on the 4^th September 2002. The documentation provided for the purposes of that hearing was provided to the Tribunal. It consisted of 28 pages of documents provided by the Respondents and 108 pages of documents provided by the Appellant (pages 29-137).

The representations hearing

Notes of the representation hearing (page 143) record that the Chair, Mr Alan Jefferson, the North West Regional Director of the Care Standards Commission, stated that the substance of the application should be considered within a forum in which experts can be cross examined on the issues of "hospital setting" "critical care facilites" and "timely transfer" and that the committee would not provide the forum. Hence "technically we’ll have to dismiss the representations so you have something to appeal against". The decision was reduced to writing (page 151).

The written document records that the sole reason given for the opposition to registration was the issue of "timely transfer" to the intensive care units.

The requirement for registration

By virtue of section 39 of the Care Standards Act 2000, section 21 of the Registered Homes Act 1984 was amended to impose a requirement in respect of premises used or intended to used by a dental practitioner "for the purposes of treating his patients under general anaesthesia" for registration as a nursing home.

The above amendment arose following the publication of a report "A Conscious Decision" (page 261) a report of the Department of Health July 2000 being a review of the use of general anaesthesia and conscious sedation in primary dental care . The recommendations of the report were, inter alia, that general anaesthesia for dental treatment should only be administered in a hospital setting with critical care facilities. This recommendation was adopted and contained within guidance. A Department of Health Circular, in the form of a letter dated the 31^st May 2001 entitled "General Anaesthesia for dental treatment in a hospital setting with critical care facilities" gave guidance about where general anaesthesia for dental treatment should be provided from 1^st January 2002.

The guidance by the Department of Health by the letter dated the 31^st May 2001 contained detail in relation to the key terms "hospital setting" and "critical care facilities". The purpose of the amendments was, as stated within the report "A conscious decision" to ensure that general anaesthesia for dental treatment "is carried out in as safe a manner as possible and that there is easy access to emergency facilities, including the necessary expertise, to manage patients with life threatening collapse."

"Hospital setting" was defined within the report "A conscious decision" as any institution for the reception and treatment of persons suffering illness or any injury or disability requiring medical or dental treatment which has critical care facilities on the same site and includes clinics and outpatient departments in connection with any such institution. The guidance letter states that "the hospital setting should be at least equivalent to that of a hospital within the NHS or premises registered under the Registered Homes Act 1984 where : general anaesthesia is generally undertaken ; trained personnel are immediately available to assist if a person has collapsed ; facilities are able to support and maintain a collapsed patient pending recovery or transfer to a high dependency unit or intensive care unit. This is further explained to mean that this is not to exclude clinics not within the hospital grounds so long as there is appropriate communication for extra help and timely transfer to a (hd or ic) unit.

"Critical care facilities" was defined with the guidance letter as being a room or space with equipment and appropriately trained personnel to enable critical care and resuscitation to be efficiently and effectively undertaken.

The Respondent’s case

The Respondent’s case was presented on the basis that by virtue of changes in practice, since December 2001 general anaesthesia in dentistry is provided in hospitals only. There is no provision within the community. To allow this appeal, it was argued, would be potentially opening the floodgates for further applications by dental practices within the community to have facilities to provide general anaesthesia, thereby reverting to the previous situation that had been found to be unsatisfactory.

A series of guidance documents were provided to the Tribunal the thrust of which was that general anaesthesia in dentistry should be confined to hospitals. The Respondent’s interpretation of the guidance letter of the 31^st May 2001 was that this was clearly intended to exclude general anaesthesia within the community and that in any event the Appellant’s dental practice could not come within the terms of the letter.

The Nursing Homes Committee considered the application for registration on the 13^th March 2002 (page 28). Dr Edwards stated to the Committee that the distance of Garston Dental Clinic to the Royal Liverpool Hospital and Alder Hay Hospital is too far to facilitate a "timely transfer" of a patient to a high dependency or intensive care unit if necessary.

Relying on that ground alone, the Committee rejected the application on the ground of "location only". The letter notifying the Appellant of the decision (page 30) stated "the location of the Garston Dental Clinic does not meet the criteria of a hospital setting with critical care facilities, as per the DOH guidance letter dated the 31^st May 2001 from the Chief Dental Officer".

Ann Ford, Area Manger of the National Care Standards Commission, made a statement dated the 13^th February 2003 (page 185) setting out the background and history of the application. In her evidence she accepted that the Garston Dental Practice satisfied the criteria to provide critical care facilities but that she sought and obtained advice from Dr Edwards in relation to the question of location.

Dr Dympna Edwards, Director of Public Health for North Liverpool Primary Care Trust made a statement of the 14th February 2003 (page 199). She explained that she gave evidence to the committee that was considering the application that the Clinic did not meet the requirements of a "hospital setting" for four reasons, namely

the guidance and changes were brought about to end anaesthesia "in the dentist’s chair", this is the way anaesthesia would be provided at the Clinic ;

the clinic does not provide a "hospital setting" ;

the clinic could not satisfy the requirement of "timely transfer" based upon the information from Dr Childs ;

registration is not consistent with the Health Authority plan that general anaesthesia should only be provided on acute hospital sites.

Dr Edwards explained that it was important to consider the question of registration from the point of view of the public perception. In particular if a critical incident arose at a dental practice following general anaesthesia would the public not consider that the patient should have been in hospital? Further, Dr Edwards considered that the guidance from the Department of Health was consistent with the interpretation that general anaesthesia should not be provided within the community, particularly when funding for dental procedures in the community is no longer available. Hence a dentist who proposes to carry out, an extraction for example, under general anaesthetic could not be paid by the health service. The patient would have to pay. The patient would not have to pay for the same procedure to be undertaken in hospital.

Dr Edwards further explained that the demand for general anaesthesia in dentistry is declining and therefore not having the facility at the Appellant’s Clinic would not materially affect the provision of such a service. Dr Edwards stated that there is no other such provision in the Liverpool area. Others, who were providing this service have moved as a result of the guidance onto hospital sites.

Dr Francis Potter, Consultant Paediatric Anaesthetist at Alder Hey Hospital provided a statement dated the 12^th February 2003 (page 474). His interpretation of the DOH guidance was that this was intended to remove general anaesthesia from dental surgeries and clinics. Accordingly a number of well equipped clinics have moved in accordance with this interpretation.

Dr Potter accepted that there were other sites in the Liverpool area that did not have acute facilities but nevertheless unlike the Garston Clinic, these sites had a range of experienced practitioners in dealing with critical situations. He considered that there is almost always going to be better facilities in hospital and inevitably in the event of a cardiac arrest, there will be experienced and trained professionals on site. Dr Potter explained that he had made inquiries of other cities including Birmingham and Manchester to establish the operating practice and procedure. He found a situation similar to Liverpool. He gave significant and powerful evidence of procedures that have to be adopted in a situation where a cardiac arrest occurs. The prospect of the patient surviving was likely to increase where facilities and staff were on site who had experience of how to deal with the situation.

Joanne Forrest, Chief Executive of the North Liverpool Primary Care Trust made a statement but did not attend for cross examination and was not required to do so. She explained that following the Department of Health guidance all dental general anaesthetic services were transferred to acute hospital sites. Further, so far as she was aware there is no site in England where dental general anaesthesia is provided in a primary care setting such as Garston Dental Clinic.

Dr Nigel Entwistle, Dental Surgeon provided an undated expert report (page 479), which was prepared in December 2002. He examined the guidance letter and general aim "to ensure that general anaesthesia for dental treatment is carried out in as safe a manner as possible and that there is easy access to emergency facilities, including the necessary expertise to manage patients with life threatening collapse". In determining whether a particular site meets these general aims the guidance further states "decisions on whether a proposed site is acceptable should be made taking into account.. the arrangements for the timely transfer of patient to HDUs or ICUs should this be necessary". Dr Entwistle identified a six point list of factors to ensure "timely transfer". He concluded that location is "very relevant" in long term survival of critically ill patients and (page 495) concluded that there may up to four times more possibility of death if a critically ill patient has to be transferred from Garston Dental Clinic. Thus Dr Entwistle did not agree with the Appellant’s assertion that location is irrelevant.

Despite the Appellant’s cross examination of Dr Entwistle on the basis that he was unable to give expert evidence, the Tribunal concluded that his evidence was valuable, measured and entirely consistent with the other evidence received from medical and dental practitioners. Dr Entwistle explained that he had in fact been involved in giving evidence at a manslaughter hearing and a hearing before the General Medical Council where a patient had died at a dental practice where the dentist and anaesthetist were present. The tape recording of the events were played in those hearings and revealed panic and a lack of experience inhibiting proper and effective action.

The Appellant’s case

The Appellant produced a document "guidelines for the transfer of an adult patient after a critical incident" (page 67) and for a paediatric patient (page 68) which each provide a 7 point plan for dealing with emergencies at Garston Dental Clinic. The significant point in the plans is that in the event of a critical incident a 999 call would be made.

The grounds of appeal assert that the guidance document of the 31^st May 2001 should be followed but that the interpretation applied by the Respondents was too restrictive and wrong.

Mr Appiah-Anane gave evidence expanding upon the points made in the notice of appeal. He stated that he did not assert that location was irrelevant but should not be the single factor to be applied in this case. Mr Appiah-Anane explained that he qualified in 1983 and has been practising as an oral surgeon at the specialist practice with his wife at the Garston Clinic for a number of years and providing dental/oral treatment under general anaesthesia with Dr John Harrison or Dr Mario Calleja as anaesthetist. He did not accept that his practice would not come within the definition of "hospital setting", and asserted that it did. He asserted that he was providing critical care facilities and in any event there were other establishments in the locality that were no better off so far as their location were concerned. Hence the ability to get to a hospital was as good, and in some cases better than other sites where general anaesthesia was being undertaken in dental work.

When dealing with the 31^st May 2001 guidance Mr Appiah-Anane explained that there are trained personnel at the Clinic. He has a qualification "advanced life support" and he and Dr Harrison have provided training to the three nurses working at the Clinic in basic life support. Neither he nor any of the nurses have ever actually been in a critical situation where life support was required.

In relation to the interpretation of "Hospital setting" Mr Appiah-Anane suggested that the guidance indicated that there are three possible types of sites contemplated by the guidance :

a main theatre for dental work (for example at Alder Hey Hospital) ;

a site within hospital grounds (for example at the Liverpool Dental Hospital) ; and

a site which is neither a main theatre nor on the grounds (which would include his clinic) which can satisfy the guidance.

Dr Mario Calleja is a Consultant Anaesthetist/Intensivist, Chair of the Lancashire Teaching Hospital NHS Trust Critical Care Delivery Group and has responsibility for the transfer of critically ill patients gave evidence on behalf of the Appellant. He explained that prior to the changes brought about from the Department of Health guidance, he would attend the Garston Dental Clinic for a session each week and undertake between ten and twelve general anaesthetics whilst dental procedures were undertaken. Whilst he still provides general anaesthesia for dental work, this is now only in a hospital setting. He did not accept that in the event of cardiac arrest the patient (and so far as he was concerned with the Garston Dental Clinic this invariably meant a child) would be disadvantaged by being at the Clinic rather than in a hospital. He gave the example of the Chorley Hospital where there are no inpatient facilities and therefore any critically ill child has to be transferred to the nearest intensive care unit, usually Pendlebury Hospital, Manchester, the location of the Hospital being similar to the Appellant’s Clinic.

Evidence was given by Dr John Harrison (in accordance with his witness statement page 182), NHS Consultant in Anaesthesia and Intensive Care Medicine and Director of a Critical Care Unit and has previously provided anaesthetic services to the Garston Dental Clinic over the previous ten years. He expressed the opinion that as there are appropriate staff and facilities at the Clinic to stabilise any patient location is irrelevant. He cited the Liverpool Dental Hospital as being in a like location. He also considered that the likelihood of a collapse was minimal and in the event of such an occurrence, the facilities at the Garston Dental Clinic were adequate and as good as other sites where general anaesthesia was undertaken.

The analysis of the Tribunal

There was no dispute between the parties that the National Care Standards Commission was right to consider the application and the appeal on the basis of needing to satisfy or come within the terms of the guidance letter from the Department of Health dated the 31^st May 2001.

Despite the submissions of both parties that the test to be adopted by the Tribunal is one of whether the decision which is the subject of appeal was a reasonable one, the Tribunal decided to determine the matter afresh. This has two consequences : firstly there is no necessity to consider what evidence was or was not before the committee which made the original decision and secondly the Tribunal is not bound by the limit of the decision of the committee in determining the appeal. The justification for so doing derives from regulation 20 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 which states "The tribunal may regulate its own procedure" and regulation 22 which states "The tribunal may consider any evidence, whether or not such evidence would be admissible in a court of law".

In determining whether the Garston Dental Clinic comes within the definition of a "hospital setting with critical care facilities" the Tribunal considered that the background evidence of previous guidance documents was of limited assistance. It is to be noted that there is no current guidance from the relevant governing bodies, in particular the Royal College of Aanesthetists, The Association of Anaesthetists or the General Dental Council since the Department of Health guidance in May 2001 which might have obviated the situation facing the Tribunal of anaesthetists having to give their own interpretation of the guidance. Further, in the event that there had been clear guidance from the governing bodies, the Appellant stated that he would not have pursued this appeal.

The conclusion of the Tribunal as to correct interpretation of the Department of Health guidance is :-

the purpose of the guidance was to limit the administration of general anaesthesia for dental treatment to "a hospital setting with critical care facilities" ;

a hospital setting means a hospital or registered premises or a clinic or day care facility associated (emphasis added) with a hospital or registered premises ;

to be associated with a hospital or registered premises there must be surgery or procedures where general anaesthesia is regularly (emphasis added) undertaken ; trained personnel immediately available to assist the anaesthetist and facilities and staff to support and maintain a collapsed patient ;

if the setting is not the main part of the hospital but is associated then there must be communication links to summon help and for the "timely transfer" to an emergency area.

There was no dispute that the Garston Clinic cannot fall within the definition of a "hospital setting" other than by being a "clinic or day care facility associated with" a hospital or registered premises.

The Tribunal concludes that the Garston Clinic does not come within the criteria as a "clinic or day care facility associated" with a hospital, because it is not associated with a hospital or registered premises.

Further, even if there had not been a break in the provision of general anaesthesia to the Clinic since January 2002 it would be unlikely that general anaesthesia would be provided "regularly" because of the general decrease in the use of general anasthetics in dental work and because any such work would have to be private work.

Further, whilst it is accepted that Mr Appiah-Anane has engaged in training and has involved his nurses in training to deal with a critical event, they have no experience in dealing with a collapsed patient and would be likely to be unable to provide the treatment that would otherwise be available in a hospital. Accordingly, the Garston Dental Clinic would not satisfy the requirement of having "trained personnel … immediately available to assist the anaesthetist" or "staff … able to support and maintain a collapsed patient" because the evidence of the Appellant (the oral surgeon) having obtained an Advanced Life Support qualification (a 2 ½ day course) and three dental nurses having received some training from him and the anaesthetist, is not sufficient. Whilst the Tribunal accepts that the Appellant has completed all the training that he could to be in a position to assist, because of the isolation of the Dental Clinic there is no other medical practitioner (apart from the anaesthetist) available, no other person with any experience of a critical incident and no-one in the vicinity to be called upon.

The Tribunal accepted that a protocol had been established at the Clinic and this was the best that could be achieved to cater for emergency situations, but the best that could be offered would be a call to emergency services, amounting to nothing better than awaiting the services of the paramedic team.

Accordingly the Tribunal concluded that the interpretation of the guidance of the 31^st May 2001 applied by the Respondent is correct. General anaesthesia in dentistry should be available only in a hospital setting which means a hospital or registered premises, or in a clinic or day care facility in the grounds of a hospital or registered premises or in a clinic or day care facility associated with a hospital (para 11 of the guidance). Where the provision of general anaesthesia is to be provided within an associated clinic or day care centre this should only be in such a venue if there is appropriate communication links to summon help and arrange a timely transfer to the main part of the hospital.

The Garston Clinic by all accounts is a well run, well respected Clinic operated by the Appellant who is clearly well liked and admired by his colleagues and those in the community. It is no criticism of him or the Garston Dental Clinic that this appeal fails.

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