First-tier Tribunal (Health Education and Social Care Chamber)

 

 

In the First-tier Tribunal

 

Between:

 

 

Rotherham Private Hospital Ltd

Applicant

V

 

Care Quality Commission

Respondent

 

[2010] 1740 EA

 

 

DECISION

 

 

 

Panel Tribunal Judge Nancy Hillier

Ms Margaret Diamond (Specialist member)

Ms Linda Redford (Specialist member)

 

 

Hearing held at Liverpool SSCSA on 15^th to 19^th November 2010.

Deliberations held  December 2010.

The Appellant was represented by the Applicant Dr Promod Bhatnagar. He called Adam Kennaugh, Birkdale Clinic Registered Manager, as a witness and gave evidence on his own behalf.

The Respondent was represented by Ms Lisa Sullivan of Counsel. She called the following witnesses to give evidence: Alan Swain (Compliance Inspector CQC), Julia Gordon (Compliance Inspector CQC), Christine Evans (Performance Assessor CQC), Brian Silverwood (Compliance Inspector CQC), Ian Biggs (Regional Director for CQC), Amanda Musgrave (Compliance Manager CQC) and Julia Roper (Compliance Inspector CQC).

 

 

APPEAL

 

1.     By notice dated 31^st March 2010 the Applicant appeals pursuant to section 21 Care Standards Act 2000 (CSA 2000) against the Respondent’s decision to refuse to register the Appellant, Rotherham Private Hospital Ltd (“Rotherham”) as the provider of an Independent Hospital with (1) acute hospital services and (2) class 3B or class 4 laser services at the Birkdale Clinic, Clifton Lane, Rotherham under sections 17 and 19 of the CSA. Rotherham is a limited company and the sole director is the Applicant, Dr Bhatnagar.

 

 

PRELIMINARY MATTERS

 

2.     The Applicant raised as a preliminary issue the question of whether the Tribunal should take into account an inspection undertaken in  October 2009 of Parkfield Hospital Ltd (Parkfield), which was at that time providing services at the Birkdale Clinic site. Parkfield was in administration. The Applicant’s plan was to use the Rotherham Private Clinic (Rotherham) to take over running the clinic free of the debts associated with Parkfield. He submitted that the Tribunal should exclude this inspection from the consideration of the evidence before it because the inspection did not relate to the application to register Rotherham, which had been the subject of a registration inspection in June 2009.

3.     The Respondent submitted that it would be highly inappropriate for the Tribunal to exclude the evidence which gave a picture of how the services were being provided by the same staff and same management team at the same premises as the proposed provider, Rotherham. Miss Sullivan cited the cases of HM Schools v Spicer [2004] EWCH 440 (Admin) and the case of Peter Jones v CSCI [2005] 426.EA. In the case of Spicer, Miss Sullivan submitted that the similar facts, albeit under the different regime of childminding, were directly analogous to this case. Carol Spicer was a childminder whose registration had been suspended. There was a further inspection before the cancellation hearing and the Tribunal considered whether it was appropriate to take the later evidence into account. They concluded that on a rehearing, rather than a review, the later inspection was relevant evidence. The provisions under consideration have similar wording to section 21 of the Care Standards Act 2000 (CSA 2000). Peter Jones was cited to demonstrate that the appropriate date for determination, on the same statutory question, is the date of the hearing.

4.     The Applicant submitted that the key issue was that Rotherham and Parkfield were entirely different legal entities. Parkfield was incorporated in 1999 and Rotherham in March 2009. He submitted that the only reason that Rotherham had to apply for registration was that it was a separate legal entity. He had approached CQC Lead Inspector Alan Swain to discuss whether Rotherham could simply take over when Parkfield went into administration, because he wanted to achieve seamless service from Parkfield to Rotherham. Mr Swain had directed him to apply for registration.

5.     The Applicant considered that the matter was analogous to a sale and he directed us to guidance which was available on the website at the time entitled “Operational Guidance Information” September 2008. He provided us with a copy of that guidance. He believed that since there were only 4 outstanding requirements relating to Parkfield, later reducing to 3, CQC should simply inspect those requirements in respect of the Rotherham application. When they did not do that, inspecting all standards in relation to the Rotherham application, the Applicant was unhappy but he agreed that the Tribunal could and should take that June inspection into account. He submitted that the October inspection of Parkfield, arising from concerns raised by the Rotherham application inspection in June, should be ignored completely because the inspection was of the existing rather than the proposed provider.

6.     The Applicant asked the Tribunal to ignore Spicer and Peter Jones on the grounds that they were too “legalistic”. He said that in those cases it was the same person being inspected, which meant that the cases were not applicable because Parkfield was a separate legal entity from Rotherham. He also submitted that many staff had left because of the financial difficulties, and therefore there would be a different staffing regime.

7.     The Tribunal concluded that it would be artificial and wrong in law to disregard the October inspection. The reasons for this were that the panel were considering the matter as things stood in November 2010, unfettered by past decisions. Further, the panel was not satisfied that the “Operational Guidance” had any real relevance to the application. There was no sale, and the guidance was really provided for the new registration of existing registered services following sale. The Applicant tried to squeeze the facts of this case into one of two models of sale in the guidance because he wished to demonstrate that only the three outstanding requirements should have been considered in the registration process.

8.     The guidance states at page 7 that registration can only be granted under s.13 of the CSA 2000 “where you are satisfied that the requirements of this Act and the regulations are being met and will continue to be met”. The Tribunal has to decide whether to confirm the Commission’s decision or to direct that it has no effect, or to impose any conditions it thinks fit. The Tribunal must make its decision afresh and is not limited to a review of the Commission’s decision. The panel decided that effectively to erase part of the history of this matter would be highly artificial. The inspection was of the same premises, and almost exactly the same working practices and management team as would have operated under Rotherham, a fact which the Applicant stressed on several occasions. The evidence was therefore admitted.

 

 

 

THE LAW

 

9.     Where an application to register is made under section 12 of the Care Standards Act 2000 (CSA), in respect of an establishment or agency, the registration authority must be satisfied that the requirements of any regulations and other relevant enactments are being and will continue to be complied with in relation to the establishment or agency.  If so satisfied, section 13(2) provides that the application must be granted.  If not, the application must be refused.

10. Under section 13(3), the application may be granted unconditionally or subject to such condition as the registration authority thinks fit. Section 21 of the CSA provides that an appeal against a decision of the registration authority shall lie to the Tribunal.

11. On appeal, the burden of proof is on the Appellant to prove that it should be granted registration under section 13 CSA. The standard of proof is the civil standard, namely the balance of probabilities. However, the Tribunal takes an inquisitorial, or investigatory, approach, rather than a strictly adversarial one, to the hearing of appeals in this jurisdiction. This approach is reinforced in its procedural rules and reflects the observations on the burden of proof made in Kerr v Department for Social Development [2004] UKHL 23; [2004] 1 WLR 1372. In essence, this is a fact gathering exercise governed by equitable principles and by the overriding objective set out in Rule 2 of the Health, Education and Social Care Chamber Rules 2008.The general principle is that each party must provide sufficient evidence to support their case, but where relevant information is available to the Respondent, an organisation with greater resources than the Appellant, it is for the Respondent to produce that information.

12. In this case, it is the Respondent’s position that the Appellant did not fulfil the criteria for registration at the time of the application and continued not to fulfil the statutory criteria at the time of the hearing.

 

 

 

BACKGROUND

 

 

13. At the time the application for registration of the Appellant was made, Birkdale Clinic (Rotherham) Limited (“Birkdale Rotherham”), which later changed its name to Parkfield Hospital Limited (“Parkfield”), was providing  services at the Birkdale Clinic, Clifton Lane, Rotherham (Birkdale Clinic). This included cosmetic surgery, laparoscopic insertion of gastric balloons and gastric banding, laser hair removal and eye surgery. 

14. Parkfield is a limited company and the sole director is Dr Bhatnagar. Parkfield is now in administration. A notice of proposal to cancel registration was served on the Applicant on 27^th July 2010 and the notice of decision was dated 28^th September 2010.  This appeal relates only to the refusal of registration of Rotherham’s application.

15. Birkdale Clinic has been a registered private hospital since the 1980s and was run by Parkfield from March 1999.  In early 2009 Dr Bhatnagar notified Alan Swain, a CQC compliance officer, of a possible change of provider due to the increasingly perilous financial position of Parkfield. Mr Swain was the lead inspector for Parkfield at that time.  An application was submitted on 16^th March 2009 but was returned as it was incomplete. On 1^st April 2009 CQC replaced the Health Care Commission (HCC) 

16. On 8^th May 2009 there was an inspection of Parkfield led by Alan Swain. This was part of the ongoing and regular process of CQC inspections. The application for registration of Rotherham was re-submitted on 9th June 2009. The Applicant proposed that a new company, Rotherham, would take over the running of the Birkdale Clinic, and would run it in the same way as Parkfield had. In essence there would be a change of the company which was registered provider with some limited staff changes. 

17. On 10^th June 2009 Mr Swain emailed Adam Kennaugh, Registered Manager (RM) of Parkfield stating that a full inspection of all standards would need to be undertaken and dates in June were proposed. 

18. In June 2009, Julia Gordon took over the role of lead inspector from Mr Swain.

19. An inspection of the theatre was undertaken by Lynne Lord on 17^th June 2009 because she could not attend on 23^rd June.  An inspection of all other standards was undertaken by four inspectors on 23^rdJune 2009.  The inspectors were Alan Swain, Julia Gordon, David Farrell and Julia Roper. This inspection will be referred to as “the June inspection”.

20. Where the National Minimum Standard had allegedly not been reached, a total of 49 requirements were made.

21. On 14^th July 2009 the clinic name was changed from Birkdale Clinic (Rotherham) Ltd to Parkfield Private Hospital Ltd, because the Applicant did not want the reputation of “Birkdale” to be tainted by looming administration. Adam Kennaugh notified CQC of this change on 11^th August 2009.

22. The draft report of the June inspection was sent to the Applicant at the end of August 2009.  He replied with an action plan which was sent by email to Julia Gordon on 11^th September 2009.

23. The Applicant proposed that Adam Kennaugh be the Responsible Individual (RI) and RM for Rotherham. A separate application was made by Adam Kennaugh to this effect.  He was interviewed by Julia Gordon and Brian Silverwood on 7 September 2009.

24. Julia Gordon concluded it was appropriate to propose to refuse registration of Rotherham on 14^th September 2009.  Her opinion was subject to internal review within the CQC. The decision was confirmed at a CQC management review meeting on 25^th September 2009.  A further decision was made to undertake an unannounced inspection visit to review the requirements identified in the inspection report from June as it was considered that the failures applied equally to Parkfield which was actually running the clinic at the time. 

25. That inspection took place on Friday 9^th October 2009.  The inspectors involved were Julia Gordon, Brian Silverwood and Christine Evans.  Amada Musgrave, Compliance Manager, was also present to provide advice and support on enforcement. This inspection will be referred to as “the October inspection”.

26. Dr Bhatnagar, the Applicant, was suspended from practise by the GMC on 14^th October 2009.

27. A statutory requirement notice in respect of the October inspection was subsequently sent on 26^thNovember 2009.  In addition to the requirements made in respect of the June inspection, new requirements were made for breaches found in respect of medicine storage and incomplete patient records. 

28. Parkfield went into administration on 28^th October 2009. The notice of proposal to refuse registration of Rotherham was originally sent by registered post on that same day but the notice was later returned stating the letter had not been picked up by the addressee. A further notice was sent on 27^th November 2009. 

29. Following his ‘fit person’ interview, a Notice of Proposal to refuse Adam Kennaugh’s registration was sent on 27 November 2009.

30. The Applicant made written representations against the Notice of Proposal in respect of the Rotherham registration on 31^st December 2009. These were considered by Ian Biggs, CQC Regional Director and he made a decision to uphold the notice of proposal on 8^th March 2010.

31. Mr Biggs also considered written representations against the notice of proposal to refuse to register Adam Kennaugh as RM.  Those written representations were upheld on 8^th March 2010.

32. The Applicant appealed the decision in respect of Rotherham by notice dated 31^st March 2010.

 

 

THE ISSUES

 

33. In her case summary Ms Sullivan identified 5 issues which she believed to be the relevant matters of dispute which required determination. Dr Bhatnagar agreed that they were indeed the relevant issues and added 2 additional matters. The 7 issues identified raised by Dr Bhatnagar at the outset of the hearing were therefore as follows:

a)    The October inspection should not be taken into account as it was an inspection of Parkfield and not in respect of Rotherham;

b)    The inspection in June 2009 was undertaken by inspectors who were biased against PKB/Parkfield/Rotherham;

c)     The inspection in June 2009 was not undertaken properly as there was no feedback session at the end;

d)    Mr Biggs did not undertake a full and proper investigation in coming to his decision in March 2010;

e)    The HCC and CQC have made a series of mistakes in respect of Dr Bhatnagar and companies controlled by him over a number of years and this is part of that pattern.

f)      The operational guidance was not followed by the CQC even when it was repeatedly pointed out to them.

g)    The Appellant was treated differently from other providers.

 

34.  Issue a) was dealt with as a preliminary issue since its determination would shape the nature of the hearing and the evidence called.

 

35. In addition to the above Ms Sullivan outlined a further two issues in her closing submissions on behalf of CQC, namely:

h)     Were the relevant regulations being complied with or will they continue to be complied with (s 13(2) CSA)?

i)       What weight should be given to the October 2009 inspection as it was an inspection of Parkfield?

 

EVIDENCE

 

36. The evidence we considered was contained in the bundle of about 3000 pages provided to us taken together with the oral evidence we heard and the oral and written submissions of both parties. The main issue for the Tribunal to decide is whether there were breaches of the minimum standards, and if so, whether those breaches meant that the registration was correctly refused. Further, the Tribunal must consider the current situation in respect of the application.

37. During the course of the hearing several admissions were made by Dr Bhatnagar and his witness, Adam Kennaugh. These were reduced to a table by Ms Sullivan and can be summarised as follows:

·       Dr Bhatnagar accepted, having heard the evidence of Adam Kennaugh, that from June to October 2009 Mr Kennaugh was not a good Registered Manager (RM). Further, he agreed that, with hindsight, it would have been inappropriate for Mr Kennaugh to be both RM and RI without support.

·       Adam Kennaugh accepted that whilst the action plan dated 11^th September 2009 indicated that all appraisals had been completed, in fact they had not been completed. Further, he did not know whether the annual appraisals of the doctors had been completed.

·       Dr Bhatnagar accepted that there was no appraisal of Dr Antoniadou and that in respect of Dr Rezai the appraisals (signed by him) were identical for three years and were apparently a paper exercise rather than actual appraisals.

·       Dr Bhatnagar accepted that there was no excuse for the practising privileges to have been the subject historically of requirements, and that he may not have signed the practising privileges for Dr Knapper. Adam Kennaugh accepted that after the June inspection he should have checked these and he had not done so,

·       Adam Kennaugh accepted that fridge temperatures were not being checked correctly both prior to the June inspection and at the October inspection.

·       Adam Kennaugh accepted that in respect of the drugs policies there were problems with the files being incorrect. Further, he accepted that the drug keys being in an unlocked drawer was a breach of the National Minimum Standards (NMS) and the clinic policy. Dr Bhatnagar accepted that for the purposes of the NMS the keys were not secure.

·       Adam Kennaugh said that he could not condone or defend the loaded unmarked syringe found at the October inspection. Dr Bhatnagar accepted that the syringe breached the NMS.

·       Dr Bhatnagar accepted that neither of the patient guides provided to the CQC and the tribunal complied with NMS 7

·       Dr Bhatnagar accepted that the incorrect templates were being used for audits by nurse managers but said they had been instructed on what to do. He accepted that the accountability and monitoring trails were unclear.

·       Dr Bhatnagar accepted that there were deficiencies in respect of patient records sufficient to breach NMS.

·       Adam Kennaugh accepted that at the October inspection there were deficiencies in relation to blood products which amounted to breach.

 

 

 

 

 

38. Dr Bhatnagar’s response to the table of admissions was “We think the table is duplication of part of submission and we are not commenting on it. We can on our part make a similar table which will be more exhaustive but most of that will be duplication and hence we are not indulging in that.”

39. Adam Kennaugh admitted in oral evidence that at the time of the registration application he did not think the Birkdale Clinic was meeting all the standards and that he believed they would more likely be given registration for Rotherham with conditions rather than full registration.  Dr Bhatnagar accepted there were some problems at Parkfield but thought that by the time Alan Swain inspected in 2008 they had become “very good” as they “only” had 4 requirements.  He accepted that not all the standards were met in the June inspection, but said that it was not “as bad” as it was stated in the report. The factual findings of the inspectors were in the main not challenged. What was alleged was that the report was biased and that the clinic should have been given the opportunity to put matters right

40. It would be impractical to set out all the evidence heard in the course of the five day hearing, especially given the admissions and lack of factual challenge to the actual findings reported, however the Tribunal identified there were three matters which were particularly illustrative of Dr Bhatnagar’s approach to the regulatory process and the minimum standards set down for his clinic.

 

The keys for the drug cabinet.

 

41. Brian Silverwood is a Compliance Inspector for CQC and has worked in that role for the Commission and its predecessor organisation since October 2004, prior to which he was employed at the Sheffield Children’s NHS Trust as a first level Registered Sick Children’s Nurse and Registered General Nurse, including the roles of clinical nurse specialist (paediatric metabolic bone disease) and ward manager. He maintains a current valid professional registration with the Nursing and Midwifery Council. He has a Masters degree in Health Care Law, ENB 998 (teaching and assessing in clinical practice), ENB N49 (tissue viability for nurses) and ENB 870 (understanding and application of research).

42. Mr Silverwood was the Lead Inspector for Birkdale between 2005 until an inspection undertaken on 26- 28 February 2007. He then had no further involvement with the Birkdale clinic until the 9th October 2009 when he was part of the Parkfield inspection team

43. The standards and requirements he reviewed on 9 October 2009 included C4 (monitoring quality), C7 (policies and procedures), C9 (human resources policies and procedures), C10 (practising privileges), C17 (health care premises), C21 (health and safety measures), A9 (health and safety [annual report], A41 (pathology services process) and A42 (quality control of pathology services).

 

44. Mr Silverwood gave evidence that on arrival for the October inspection the Inspection team was shown to room 8 on the ground floor by a staff member, Peter Brown. Mr Silverwood and Christine Evans decided to commence their inspection in the ward area. They found it to be unlocked (this was denied by the Applicant and his staff) but closed with no patients and no members of staff present. Peter Brown joined them at about 9 a.m. and they asked for the ward policies and procedures. Mr Brown told them that these were kept in the treatment room situated adjacent to the nurse station.

 

45. The treatment room was locked so Peter Brown was asked if he could unlock it. He reached into an un-lockable drawer and took out keys which he used to un-lock the treatment room. It occurred to Mr Silverwood, with his extensive nursing experience, that, owing to its shape, one of the keys was likely to be the ward drug key. To check this he unlocked the drugs trolley with it. Later he saw Adam Kennaugh and told him the keys had been in an unlocked drawer. Mr Silverwood’s statement records “Adam put out his hand and offered to take the drug keys and place them in the safe”…

46. The National Minimum Standards require at C23.4 that “The keys of all cupboards used for the storage of medicines are held securely, including spare keys”. This is supported by regulation 15(5) of the Private & Voluntary Health Care (England) Regulations 2001.

47. Mr Silverwood explained “If you see something that’s a clear risk you have to act. With a minor breach you would maybe have a word.” He gave an example of a missing light bulb as something that he would point out and invite the provider to sort the matter out there and then. The key to a drugs cabinet in an unsecured area was not something which he could ignore.

48. In his evidence Mr Kennaugh accepted that the keys should have been locked away and should have been on a separate key ring but he was insistent that the ward door was locked and said “If they were going to steal the drugs they could’ve just broken into the cabinet.”  

49. Dr Bhatnagar’s evidence on this issue was that whilst he accepted that “in an ideal world” the keys would be locked away they were in a generally secure area and he said that Mr Silverwood had no basis to say that the ward doors were unlocked, although he had not challenged him on that issue. He also said that since the keys were in the drawer …”it would take a long time to find them”.

 

The loaded unmarked syringe.

 

50. Christine Evans is a Performance Assessor for CQC and has been employed in that role by the Commission and its predecessor organisations since July 2001. Prior to this appointment she was Head of Clinical Quality for South Durham Health Care NHS Trust and had held positions in clinical and medical audit, sterile services management, and as a theatre sister.

51. On the 9^th October 2009 she was involved in the unannounced inspection. Ms Evans and Brian Silverwood split the allocated requirements and related standards between themselves. She looked at requirements in relation to 15 national minimum standards, namely: C24 controlled drugs; C23 ordering and storage of medicines; C26 medical devices and decontamination; A11 decontamination; A33 responsibility for pharmaceutical services; C28 contracts; A34 ordering, storage, use and disposal of medicines; A35 administration of medicines; C27 resuscitation; A12 resuscitation; C17 health care premises; C1 information for patients; C21 health and safety measure; A38 aseptic dispensing, non sterile manufacture and repacking; C14 complaints process; and C15 information for patients about complaints.

52. When she visited the theatre suite with Julia Gordon she saw a loaded syringe in the medicines fridge. In her typed inspection notes she remarked that action must be taken to ensure all medicines are disposed of in an appropriate manner and staff must be reminded of their responsibilities in regard to this. She explained to the panel that this is very   important because medicines that are no longer required should be destroyed or otherwise disposed of in accordance with safety, legal and environmental requirements.

 

53. Dr Bhatnagar cross examined her on the basis that it was the normal practice to have a syringe of muscle relaxant in the fridge when the operating theatre is in use together with a mask and tracheal tube with their sterile packaging open for use in an emergency. This would be destroyed “the next day”. Ms Evans said that in her experience as a theatre sister when you need a drug you draw it up and use it. If you don’t use the drug you destroy it. In an emergency you can load a syringe in seconds, break open the sterile packaging for a face mask or tube in seconds and there is therefore no need to have syringe waiting in the fridge. She was clear that there was no reason whatsoever to retain an unmarked unused drawn syringe. It should have been destroyed “there and then” if not used.

 

54. Ms Evans told the panel that the syringe and the drug cabinet keys were very serious concerns for her.

 

55. Adam Kennaugh stated in his oral evidence that he had seen unwrapped intubation tubes in other hospitals and quipped “if a patient is dying it doesn’t matter if they get a throat infection”. He accepted that the syringe contravened the hospital drug policy, although he said it was common practice. When asked if there was a policy to keep the syringe there as a safety measure for emergencies he said “Not as far as I know, no.” Dr Bhatnagar had in fact told the tribunal that there was such a policy for keeping the muscle relaxant in the fridge.

 

56. Dr Bhatnagar said in his evidence in chief “What I don’t understand is why it wasn’t labelled but I cannot say.  It was an empty fridge. One syringe with an ampoule. The reason it is there is so you can get it very quickly. There are say 5 patients and 3 staff. If a patient collapses and the staff need to intubate you need suxamethonium. The syringe should be labelled. It’s quite possible it fell off. Adam wouldn’t know about this policy because he isn’t clinical. The next team would have cleared it up before they started.”

 

 

 

The appraisals of Dr Rezai

 

57.  There were apparently annual appraisals of Dr Rezai over a three year period. Each appraisal was virtually identical, and each was apparently signed by Dr Bhatnagar. In evidence Dr Bhatnagar accepted that this appeared to be a paper exercise rather than a real appraisal of the doctor concerned.

 

The Inspection history

58.  The inspection history for the Birkdale clinic was summarised by Julia Gordon.

59. At an inspection conducted on 18 May 2004, 23 June 2004 and 26 July 2004 seventy-six areas of non compliance were identified.

 

60. At the inspection conducted on 24 May 2005, 26 July 2005 and 27 July 2005 fifty-six areas of non compliance were identified. Twenty-three of these areas of non compliance had been identified at the previous inspection.

 

61.  A monitoring visit  was conducted on 11 April 2006. Brian Silverwood, the Lead Inspector for Birkdale Clinic at that time, led the visit. Julia Gordon was part of the team. The provider was informed that, whilst improvements had been made and they were working towards compliance, a number of areas of non-compliance remained.

 

62. At an unannounced follow up inspection conducted on 4 September 2006 continued breaches in regulations were identified.  A further unannounced inspection took place on 26, 27 and 28 February 2007 when forty-two areas of non compliance were identified. Twelve areas of non compliance had been previously identified.

 

63. At the follow up inspection on 7 February 2008 eight areas of non compliance were identified, three of which had been identified at the previous inspection. Julia Gordon recollected that significant improvements to compliance with the Regulations had been made. At inspection on 31 October 2008 four areas of non compliance were identified,  two  of which had been identified at the previous inspection.

 

64. At the unannounced inspection on 8 May 2009 three areas of non compliance were identified which still had not been addressed from the previous requirements. The public inspection report  states ‘Performance has improved in a number of areas but further work is still required in the areas of human resources and the quality of clinical audit. These areas have also been the subject of requirements at previous inspections and need to be addressed by the establishment as a priority’.

 

 

The June and October Inspection breaches.

65. These were summarised in a helpful Scott schedule by Counsel representing the Respondent under the respective headings used by the inspectors. At the June Registration Inspection the report records that 59 standards were inspected. 26 were “met”, 6 were “almost met” and 27 were “not met”. In fact 28 were met.  A total of 49 requirements were made. The October inspection of Parkfield recorded that 30 standards were inspected. “23 were “met”, 1 was “almost met” and 6 were “met”

 

66. Julia Gordon explained that she had adjusted some of the assessments when she collated the individual assessments to provide the June report:

·       C!8 from met to almost met because .there were no maintenance records available for laser equipment

·       C23 from almost met to not met because there were 3 requirements under the standard and she felt this was a high risk.

·       C26 from met to not met, due to breach of A11 and inconsistencies in decontamination procedures. She accepted that this could have been recorded as almost met.

·       A34 from almost met to not met as there were 3 requirements and this is an acute standard

·       A23 from not met to met because there was no breach (error)

·       C8 from met to not inspected.

·       C16 from met to not inspected – this was an error

·       A5 from met to not met because there were requirements under C10 and Ms Gordon assessed this as significant.

·       C1 from almost met to not met. Dr Bhatnagar accepted that this could not be a “met”

·       C14 from almost met to not met because there were inconsistent complaints policies.

·       C15 from almost met to not met- accepted that this was a “borderline” case

·       C19 from met to not inspected due to insufficient evidence.

·       C17 from almost met to not met as there was no evidence of emergency generator testing and there were 3 requirements under this heading.

 

 

 

 

SUBMISSIONS

 

67. Ms Sullivan submitted that the Appellant has failed to show that it has complied or will comply with the regulations.  She stated that in order for the Tribunal to make any decision other than to confirm the Commission’s decision, it must be satisfied that the relevant regulations were being met at the clinic and would continue to be met. She accepted that if there was a very minor breach which the Tribunal was satisfied would be rectified, the Tribunal could make a different order, but submitted that the breaches in this case are numerous and not “very minor”. 

68. Dr Bhatnagar submitted that he does not dispute the contents of s.13(2), however he submits that this is a unique case and “a hasty decision with regards to the new registration was made”

69. He went on to submit that, in respect of the legal test :

 “The appellant has a different view to the above. It is the appellant’s submission that the tribunal must be satisfied that the CQC’s procedures with regards to registration in this case  were correct, consistent and in accordance with the law.  It is the appellant’s submission that this was not the case.”

And:

The law states that all NMS have to be met which is agreed. The appellant’s submission is that if CQC are inconsistent in their approach to this for example allowing existing providers (including us) to continue with not all NMS being met then they are not following their own law.

 

 

Were the National Minimum Standards breached?

 

70. Ms Sullivan submitted that whilst Mr Kennaugh and Dr Bhatnagar gave evidence that that the National Minimum Standards were “minimum” standards which must be achieved by all providers, in fact they did not actually consider them to be minimum standards.  Both made comments to the effect that there had been no serious adverse incidents for patients or deaths despite the breaches. Adam Kennaugh also said he thought that some standards were “excessive” and Dr Bhatnagar sought to justify some of the admitted breaches (e.g. the loaded syringe and opened pack of laryngeal masks).  She stated that this showed that there was a general lack of acceptance that the standards are there as the benchmarks for patient safety and quality assurance; policy, procedure and practice.  She therefore submitted on behalf of the Respondent that this indicated that compliance with the standards was and is unlikely to be achieved.

71.  Ms Sullivan grouped the breaches into several headings and submitted “First, some breaches are in and of themselves so serious that registration should not be granted.  Secondly, there are more minor breaches which are either repeated or form part of a pattern such that, although on an individual basis they may or may not be serious enough to justify a decision to refuse registration, the pattern shows that the Appellant will not meet the regulations and should not be registered.”

 

72. Dr Bhatnagar submitted that the guidance suggests that Regulators will look for evidence that the requirements are being met through: discussions with patients, staff and managers and others, observation of arrangements in the establishment and scrutiny of written policies, procedures and records. In addition it suggests that

“The involvement of lay assessors in the inspection process will help to ensure a focus on the outcomes for patients.”

73. He said that since the NMS came into effect on 1^st April 2002, the CQC and its predecessors have not followed the guidance in relation to NMS inspections and compliance.  Firstly there are no “lay assessors” as part of assessment teams and in his view “focus on outcome for patients” has not been part of the inspection process. Further, he feels that, the CQC has allowed and continues to allow providers to operate ‘below’ the NMS and gave Parkfield as an example of this. Dr Bhatnagar therefore urged the Tribunal to interpret CSA 2000 section 13(2) “in this context”.

74. In his written submissions Dr Bhatnagar also stated “We have always said that the NMS are just that- they are minimum standards and society wishes that every provider operated within those including us. We are no exception. What we are suggesting is that from the evidence that CQC have allowed providers (including us) to operate in the past without achieving all NMS it can only be summated that this is acceptable practice as per regulatory body. Roman V111from NMS 2002 states ‘Whilst the standards are qualitative – they provide a tool for judging if patients are receiving safe and quality-assured treatment and services – they are also measurable. Our submission is that it should be used as a ‘tool’ only.”

Dr Bhatnagar submitted that the most important thing is that patients get “safe and quality assured treatments” He points out that his business was considered  as a “provider of repute”  Further, he stated “Some breeches have been accepted but it is the outcome that the appellant proposes to be taken into account and we submit that less weight is given to the number of breeches.” And “It is accepted that breeches are breeches and any justification or explanations do not change that although it may put that particular breech in a context.”

 

.

Staff Issues

75. The first matter raised by the Respondent under this heading is whether it was appropriate to put forward a joint RI/RM role for Adam Kennaugh in 2009. The Appellant was eventually advised on June 10^th 2009 by email that the dual role was unlikely to be appropriate but its management team chose not to follow that advice.  Ms Sullivan submitted that this demonstrated that decisions were made on the basis of the financial position rather than staffing need.

76. Secondly, the evidence of the inspectors demonstrated in her submission that there was also a pattern of failure to provide appropriate training and appraisals of staff and doctors, insufficiently clear employment policies and procedures and a failure to check the registration status of staff. 

77. An example of this was that Adam Kennaugh relied on a “staff training matrix” produced by his secretary to show that training and appraisals were being undertaken properly.  In cross examination he accepted it was inaccurate in parts and that it actually showed that some staff had not had appropriate appraisals.   Ms Sullivan stated “It was his responsibility to have systems in place to ensure that staff had appropriate training, not the nurse manager’s or his secretary’s as he appeared to suggest”. 

78. In addition, the inspectors found no evidence of proper practising privileges being on the files of some doctors and found no evidence of recent annual appraisals.  The Appellant provided no evidence at Tribunal that these had been carried out. Since certain breaches were accepted and Adam Kennaugh appeared unaware that a number of the doctors practising at Parkfield did not practise in the NHS, Ms Sullivan submitted that the Appellant could not show that the standards had been met.

79. Dr Bhatnagar submitted that “…the whole RI: RM issue has been muddled by CQC. It is another example of CQC’s inconsistency.  If the regulatory body are inconsistent it is impossible for the provider to have clarity on what is considered correct. Towards the end of 2008 for Hammersmith Clinic an application was granted for Niraj Manglam to be both RI and RM for the Hammersmith clinic. Between January to June 2009 Alan Swain had not disagreed with the proposal for Adam to be RI and RM. In June Alan Swain looked at the guidance and suggested it may not be appropriate. However this is the same guidance that had been available for the Hammersmith application for joint RI: RM.  Therefore our submission is how can the same guidance allow RI: RM in one establishment providing similar services and then not allow it for the other establishment? It is not accepted that we chose not to follow advice.  The advice from CQC was inconsistent and subjective. Regardless the RI: RM issue was not upheld by Mr Biggs. In this case for the appellant it serves only 2 points: 1) It demonstrates the inconsistency 2) It formed a substantive part of the NOP and therefore the submission is that if the RI: RM appeal was upheld then less weight should be given to the NOP as a whole.”

80. In respect of training issues Dr Bhatnagar submitted “There was no ‘pattern’ of failings in that respect. Standard A8 regarding training, experience and qualification of staff and A3 regarding qualifications of medical practitioners were inspected in May 2009 and found to be met. The word pattern is being used to distort the facts.” And “…it is extremely difficult to pin down Consultants who are just in private practice for 2 hours to conduct an appraisal by our internal management team. We do have all consultants’ returns to theatres, infection and complication rates and patient complaints and compliments and hence even though a formal appraisal may not be in place, all the relevant information about consultant is in place and patients are assured that they are getting ‘Safe and Quality assured’ treatments by these consultants”.

 

 

Medicine Issues

81. Ms Sullivan submitted that in respect of Standard C23, there was a serious breach in respect of the loaded unmarked syringe left in the fridge, not to mention an opened sterile package containing an endotracheal tube.  Dr Bhatnagar did not dispute that the loaded syringe and endotracheal tube were there but sought to explain that there was a policy justifying their presence. 

82. It was submitted on behalf of the Respondent that Standard C23 requires that medicines are handled in a safe and secure manner and in addition Standard C22.6 requires that medicine doses are prepared immediately prior to their administration to patients from the container in which they are dispensed. As such, this admitted situation “… was not only a breach but potentially dangerous and indicates on its own that the Appellant will not comply with the regulations.” 

83. Ms Sullivan continued “The same point can be made in respect of drugs keys being kept in an unlocked drawer in an unlocked ward.  This is a serious concern as Peter Brown knew the keys were there so it must have been standard practice.  It is submitted that Dr Bhatnagar’s attempts to justify it as “secure” as there was a keypad lock on the door to the ward shows an inappropriate attitude to medicines security. 

84. With respect to the medicines policies, Ms Sullivan pointed out that the conflicting versions meant that the staff may not know which was the correct policy. This, she stated, demonstrated weak governance and creates the potential difficulty of staff following incorrect polices.  Further, since this is an area where there was repeated non-compliance with the regulations over a period of time she urged the Tribunal to conclude that the Appellant has not met and will not meet the relevant standards.

85.  In his written submissions Dr Bhatnagar stated “The Suxamethonium filled syringe explanation was not made up by me. It was the explanation given by anaesthetist who with previous nurse manager had put in place as an emergency life saving system. On reflection an alternative system could have been in place.” He continued “It has extensively been discussed at the hearing and we have agreed that some policies needed updating. We have nothing further to add except that our submission is that the need for updating policies is something that could have been discussed at a feedback meeting and if RPH Ltd had gotten its registration new policies could have been put in place and have been since.”

He went on to say that “….the fact that we are compliant at other site in Crosby with same management team would suggest that if RPH Ltd was given its registration that we would be compliant there. In addition Parkfield had been compliant in past inspections in this standard.  It has been accepted that the policy did need updating.  It is submitted that standard 22.6 should not apply in the case of an emergency medicine and in hindsight if the policy had allowed and explained the rationale for the syringe then perhaps the standard would have been met. “ and that the same points applied to the keys to the drug keys.

 

 

Pathology/blood services

86. The Respondent submitted that failure to have blood products available whilst undertaking laparoscopic surgery was a potentially dangerous breach of the regulations.  Ms Sullivan submitted “The Appellant should have known that it was necessary to have access to blood products if laparoscopic surgery was being undertaken.  This issue illustrates that the systems in place at Parkfield were not robust enough to ensure that current clinical practice was being kept up to date.  The management was inappropriately relying on doctors with practicing privileges to notice if there were incorrect policies or procedures in place.  Alternatively it was relying on inspectors to point out such problems.  That lack of robust governance could lead to serious injury or death to a patient as it appears to have done in the case which led to the NPSA alert…”

87. Dr Bhatnagar submitted in his written document that Gastric band surgery at Parkfield was carried out by a leading surgeon from a Sheffield teaching hospital and the clinic “at all times had surgical trays to convert a laparoscopic procedure to an open one.” In the event that the patient required blood he or she would be transferred to Hallamshire Hospital by 999 ambulance. Further, the  SLA with Sheffield was not renewed because Parkfield had not required blood for any of its patients for over 15 months and the agreement expired whilst the Rotherham application was in progress.

 

 

Emergency/Critical Care

88. The Inspectors recorded that there were inconsistent and out of date policies which could lead, in a clinical emergency, to poor care being delivered.  Requirements were made in 2004 and 2007, the standard was met in February 2008, but another requirement was made in 2009. Ms Sullivan submitted that this demonstrated that, without the input of the inspectors, the standards were not kept. 

89. Dr Bhatnagar argued that the inspectors were insufficiently helpful, save for Mr Swain, who had given guidance to a nurse. “The fact is that apart from brief period when Brian Silverwood was spending extra time with nurse manager Julie at the time when he was lead assessor, the assessors have given no guidance and support. On the contrary any advices they and their managers have given have been proved to be conflicting and not one hundred percent correct or helpful.

In this instance Lynn Lord had found a standard met which Julia Gordon changed to not met without discussions with Lynn.”

 

 

Policies/procedures

90. Adam Kennaugh admitted in cross examination that there were problems with version control of policies.  Version control was an issue that arose in respect of many different policies (complaints, drugs, decontamination, resuscitation and differences in ward files for staff and for bank/agency staff).  Ms Sullivan submitted that his responses illustrated a failure to understand the purpose of policies and the poor care that could be caused by the lack of consistency when he said “paperwork is less significant compared to patient care” and “as long as the patient is safe, if someone has not ticked a box, it doesn’t matter”.

91.  She further submitted that rather than being minor, technical breaches which do not affect patient care, the failure to have consistent policies in place means that different procedures may be followed. Failure to carry out resuscitation drills (and the inappropriate nature of the one drill that there was evidence of) could lead to ineffective care being given in an emergency situation and was therefore not something the Tribunal should ignore.

92. Dr Bhatnagar stated in his written submissions “It has been acknowledged that appraisals for all consultants with practicing privileges were not in files and we have explained it is not an easy task. Most providers including biggest companies like BMI, Spire and Ramsay have same difficulty and it can be seen in their inspection reports. The CQC has allowed all these providers to operate under NMS and can not treat us differently. We however have worked very hard during past year and all consultants working at our clinics now have appraisals or evidence that their NHS post has appraisal in their files.” Of resuscitation policies he stated “Everything should be taken in context of our small hospital with small number of healthy adults being treated there.”

 

 

Audit issues

93. It was submitted on behalf of the Commission that proper audits were not carried out, there was no clear accountability trail and there were no clear actions or timescales. Partial admissions were made by Dr Bhatnagar, however Ms Sullivan submitted that there was clear evidence in respect of the breaches as reported by the Inspectors and no contrary evidence supplied by the Appellant.

94. Dr Bhatnagar submitted that these were presentational issues. “The outcome of treatments at Parkfield was excellent with hardly any infection and negligible complications. These have not been acknowledged by any of the assessors. If there were no cases of infection, what was there to learn and who had to take responsibility of actions etc. Since then we have now different template and all these actions are documented” .  He also prayed in aid the customer satisfaction survey.

 

Patient records

95. The deficiencies in the patient records were set out in the evidence of Julia Gordon and Dr Bhatnagar accepted in his oral evidence that there were some breaches.  Ms Sullivan submitted that these were not minor breaches but, particularly given the number of them, were significant and as such would lead the Tribunal to conclude that the decision not to grant registration to Rotherham was correct.

96. Dr Bhatnagar accepted in his evidence that there were deficiencies in patient records.

 

Weight of the October 2009 Inspection

97. Ms Sullivan submitted that it is appropriate to give equal weight to the breaches in the October 2009 inspection and the breaches in the June 2009 inspection because the former inspection, an enforcement inspection, found evidence of dangerous practices. The Inspection looked at the action plan to see if actions had been carried out as was claimed and found that they had not.

 

98. As a consequence she submitted “Any suggestion that less weight should be given because the hospital was carrying out fewer procedures and had fewer permanent staff should be rejected.  Procedures, including procedures under general anaesthetic, were still being carried out, and those patients deserved just as much safety and quality assurance as patients who were treated in and before June 2009.  If Parkfield was unable to meet the required standards because of its financial situation it should not have been carrying out any procedures.”

 

99. The appellant’s submission is that this CSA 2000 s.32 is not relevant in this case as the inspection “was for a new registration and so legally inspection reports with the existing providers name should not be permitted” Further “ The inspection of 17^th June and 23^rd June were for Rotherham Private Hospital Ltd. All communications before the inspection referred only to RPH Ltd’s application to register. All assessors confirmed in their evidence that they came to inspect as part of registration process of RPH Ltd. Even on 23^rd June Julia Gordon did not say even once “by the way this inspection is for Parkfield too”. It was during days following the inspection that Julia suddenly started referring it to that of Parkfield inspection. The commission and it officers whether due to incompetency or other reasons got themselves into a muddle in dealing with application by a new ‘Corporate body’ Rotherham Private Hospital Ltd and were unable to unravel it.”

 

Bias/Incompetence

100.       During cross examination Dr Bhatnagar conceded he was not alleging bias against Alan Swain, Julia Roper, Christine Evans or Amanda Musgrave. Since all of those inspectors made requirements when they inspected the clinic Ms Sullivan submitted that the Tribunal could rely on their essentially unchallenged evidence. 

101.       The Commission invited the Tribunal to expressly reject allegations of bias on the basis that no evidence was produced to support the allegation and the inspectors all gave evidence in a manner which showed their professionalism and the care that had been taken in assessing the Appellants application for registration. 

102.       In respect of the allegation of incompetence, Ms Sullivan assumed that Dr Bhatnagar would seek to rely on the admissions made by Julia Gordon that she had made mistakes in the June report, and that on reflection, some allegations which were put as met could or should have been categorised as “almost met”.  Ms Sullivan submitted that these admitted errors were of minor significance when taken in the context of the report as a whole.

103.       Dr Bhatnagar’s written submissions stressed that he wished the Tribunal to place more emphasis on bias and incompetence issues rather than issues of breaches. He stated….” bias I think is in most cases a perception based on sequence of many events. It’s difficult to prove. It is something in person’s mind, it is something ‘unwritten’ in an organisations working and may only be demonstrated by its working & behaviour. If a person or an organisation has a bias or an agenda, it is not likely to express it, share it with someone as then it will be easy to prove if at later date a challenge is mounted. We will not expect Julia or any other person to share with another human that she wanted to engineer closing of our hospital if that’s what she wanted. She is a clever person. In fact we will expect that she will work in a clever way that even if a doubt was raised, she will be able to defend the allegation. We have ALWAYS said that the CQC were EITHER biased OR incompetent. Incompetence was NOT an afterthought as suggested by the respondent it was merely clarified to the tribunal when realised that the majority of time had been focussed on the bias.”

104.       In respect of Julia Gordon he pointed out that in her evidence she said ‘she had no concern’ about Parkfield  which conflicted with her statement. She had also said that she “will not change standard downwards without discussing with the assessors but she has changed every ones standards downwards without they knowing about it, without even telling them after she had changed. In case of Lynn Lord it would appear that in addition she has been dishonest with her because Lynn on reading final draft report queried with Julia about standard C23.6 and Julia gave some explanation. But the final, final report shows 2 other standards that Lynn had assessed changed from Met to Not Met and Lynn has no clue about it as is clear from Lynn’s written replies to my questions. Even when Lynn queried with Julia about C23.6, Julia did not tell Lynn that she is making further changes and changing her 2 other standards.” He opined that “Julia Gordon actively changed other assessors report to make it look as worse as possible.”

 

105.       Further, Dr Bhatnagar submitted that the failure to deal with the new registration as a sale demonstrated that “the assessors have been either ignorant of the guidance or intentionally or unintentionally been less helpful. They may even been hasty in coming to conclusion about ability of RPH Ltd to meet NMS in similar way as all other providers have been meeting. It could be said they were negative in their approach.”

106.       He alleged that Ms Gordon acted hastily in refusal of registration and gave them insufficient notice of her plans, waiting until Parkfield went into administration before notification, thus keeping them with some hope that the application might succeed. Early notification “… would have given RPH Ltd time to think of alternative choices to keep services going at Rotherham. For example RPH Ltd or another company could have put another application for registration for say day case surgery for Cataracts and simple procedures which would have saved jobs and kept an excellent hospital going. Subsequently the new company would have choice to apply for variation to registration if that’s what it wanted.”

107.       Following this, further time could have been given to Rotherham, in his view, to achieve the requirements since time was given to Parkfield, namely until 30^th December 2009. The implication of this submission is that Ms Gordon was interpreting all possible measures against the interests of Rotherham and Dr Bhatnagar.

108.       Dr Bhatnagar’s interpretation of the November 2006 briefing note by Brian Silverwood is that it is very clear in meaning that he, Julia Gordon and Amanda Musgrave should not assess Parkfield hospital after 2007 to maintain “objectivity, Impartiality and proportionality”. Dr Bhatnagar dismissed suggestions that this document was being fair to the Birkdale Clinic because even, if Mr Silverwood had difficulties with Parkfield, there was no other reason why the others should not continued with the inspections.

109.       Further, he submitted that .”if on reflection it was decided that in order to maintain ‘objectivity, impartiality and proportionality’ that the assessors should not assess Parkfield then it can only be inferred that they had not been objective, impartial or proportional in their inspections at that time. We submit that the 3 assessors rehearsed their answers after knowing that the document was disclosed to us at the Tribunal hearing. The document clearly implies that Brian at the time of writing the document believed that the 3 were no longer impartial and hence can be construed that they were biased. Appointment of Julia as our lead assessor and all 3 who should not be involved with Parkfield namely Julia, Brian and Mandy to visit Parkfield as enforcement team must be viewed against this background and to an on dependent person will demonstrate either incompetence or intent on part of CQC managers. ”It is our submission that Julia Gordon changed her evidence, contradicted some of it and effectively ‘made it up as she went along’ to justify her actions in delaying and thus denying registration to RPH Ltd. [326 point 26 and Julia’s evidence at Tribunal are conflicting]It is our submission that she had to do that because during June to October 2009 when she engineered NOP to refuse registration, she would not have expected that one day she will have to come in front of a Tribunal to justify her actions.”

 

 

Feedback session

110.       Ms Sullivan reminded the panel that there is no requirement to give a feedback session at the conclusion of an inspection.  She submitted that given the nature of the June inspection as a registration inspection and the amount of material to be collated, it was reasonable and sensible not to have a feedback session.  The other inspectors had all experienced inspections where there had been no feedback session at the end for other providers.  In any event she concluded that “given the nature and number of the breaches identified, a feedback session would have made no difference.  For example it may be suggested that the inspectors could have been given the correct versions of policies, but that ignores the problem that there were different versions of policies available for staff in different locations at Birkdale Clinic”. 

111.       Dr Bhatnagar made an allegation that Julia Gordon had made her evidence up as she went along in respect of feedback.  Ms Sullivan asked the panel to expressly reject this allegation of dishonesty made against Julia Gordon on the basis that there was no evidence of any dishonesty on her part.

112.       In his written submissions Dr Bhatnagar stated that “Whether there is a requirement to give feed back session or not in my experience of 7 years and at multitude of sites it is always given and even Mr Biggs asked the question while deciding on appeal as to why it was not given? Julia has given 3 different reasons at 3 different times as to why she did not give feed back session. To Mr Biggs that it is not a requirement, in her statement that she needed to consult her manager and at a different place that she gave feed back to Adam during the course of the day on 23^rd June. If she was not covering her actions up why would she do that? It is submitted that this inconsistent answers were simply excuses.”

113.                                                                                                                                                                                                    

He went on to state that unfortunately there is no way of knowing how a feed back session on 23^rd June with all four assessors in one room with the   Parkfield managers would have affected the final report. He submitted that …” the feed back session would have clarified many issues including changing by Julia at a later date the standards assessed by other assessors…..the report would have looked far better then it did and….. the muddle whether the report is about Parkfield or  RPH Ltd would have been cleared up and at least all parties may have been on the ‘same page’”  He concludes “It is my submission that by denying that feed back on the day and delaying the whole process of registration of RPH Ltd due to concerns about Parkfield, Julia effectively prevented hospital continuing to run in one form or another”

 

The decision was part of a pattern of mistakes by HCC/CQC

114.       Ms Sullivan submitted that the mistakes alleged by Dr Bhatnagar in respect of other establishments and in respect of evidence given at the GMC are simply not related or relevant to this application or registration. 

115.       He responded that “If the Tribunal takes into account the incompetent way the HCC / CQC as an organisation has dealt with me regarding various issues  during past 5 years at various offices ( RPH Ltd variation by Leeds Office, Daventry variation by Finsbury Tower office, GMC case by East Midland office , Hammersmith variation by Finsbury Tower office etc) it will understand why I feel that the CQC as an organisation is not fit for purpose and incompetent and if not then it must be biased.”

116.       Dr Bhatnagar made extensive written submissions about CQC failures in respect of other providers. Throughout his evidence he referred to the treatment which he felt others were given because he felt that this demonstrated that either the CQC were ineffective or because they were biased against him.

 

 Failure to follow operational guidance

 

117.       In respect of this allegation Ms Sullivan points out that firstly there was no sale, as confirmed by Dr Bhatnagar in a letter dated 12^th April 2009 and therefore the guidance did not directly apply.  Secondly, even if it did apply, the guidance in sale model 1 makes it clear that the current provider (pre-sale) can be looked at and that any requirements made against the establishment must be dealt with in full before the registration process is completed . She states “Nowhere does it say there should be no consideration of compliance with the regulations outside of those requirements.  To the contrary, the guidance makes it clear that under section 13 of CSA, registration can only be granted where the requirements of the act and regulations are being and will continue to be met.”

118.       Dr Bhatnagar submitted that s13 (2) of the CSA provides “basic legal information but there is no detailed written information about how this will be carried out and what this means for the applicant.  There is no detailed written information available about it either on the CQC website or within the CQC for its assessors to send to an applicant. There are no written instructions from CQC either on the website for prospective providers or internally to its assessors about whole process of registration except by the operational guidance information by Mr Cook in September 2008”

 

119.       Rotherham was notified by email that there would be a full inspection of all standards,. Since no further detail about the actual process was provided,  Dr Bhatnagar felt that, until the appeal hearing, he did not know  “how assessors arrive at the final report of an inspection.”

 

120.                                                                                                                                                                                                    

In Dr Bhatnagar’s view the only reason a new application was required at all was because the company number was changing.. He submitted that “For this unique case detailed guidance should have been sent out to RPH Ltd. Although the email did say that all standards would be inspected, it would have been appropriate to send guidance which explained further in detail that all parts of the NMS were expected to be demonstrated.

It is the appellant’s submission that as the provider is not yet registered, it would only be the paperwork that would be required to be in place. If it is not in place on the day of inspection, the CQC would expect it to be in place before the provider treats its first patient after registration is granted. There should have been illustrations and examples. “

121.                                                                                                                                                                                                    

Dr Bhatnagar also submitted that this guidance should be very detailed and should state, for example, what was required if the hospital wished to carry out laser treatments or surgery which may require blood products. He stated “.If CQC is not 100% satisfied with our medicine policy, it will ask it to be modified before 1^st patient is treated after registration and so on and so on” He maintained that Rotherham should only have been required to meet the 3 “almost met” requirements since he had written to Mr Swain and explained the proposed ‘sale process’ planned by him “in line with Mr Cook’s guidance on Healthcare Commission (HCC) website for providers.”  He also pointed out that “Julia Gordon’s statement page 348 point 25 is factually incorrect as there was only 1 requirement from previous 3 inspections( Feb 08,Oct 08 & May 09) which was almost met( Monitoring quality) and only 1 more from Oct 08 which was almost met “.

 

122.                                                                                                                                                                                                    

Dr Bhatnagar continued his submissions under this head with a comment about Julia Gordon and the system in general “She who rather then concentrating her energy to progress with registration application by RPH Ltd, got focused on planning enforcement action on existing provider Parkfield which in any case was going out of business very soon and would not have treated patients any more and should have been left alone. There were no patient concerns any way. A huge amount of public resources that were wasted on Parkfield’s enforcement etc could have been better utilised elsewhere.”

 

Was Rotherham treated differently to other providers?

123.       It was submitted on behalf of the Respondent that, insofar as there was any difference in treatment, it was due to the difference in the nature of the registration process and the inspection process for registered providers. Ms Sullivan stated that it was clear from the evidence of the inspectors that the practice in respect of new registrations was generally to inspect all the standards, whereas the methodology for inspection of registered providers was generally to inspect previous requirements and anything that cropped up as a risk. 

124.       Dr Bhatnagar suggested in cross examination that no new provider would in reality be able to meet all the standards, and that they should not be expected to.  It was his view that it was common for registered providers not to meet the minimum standards.  Ms Sullivan urged the panel to weigh his view against the evidence of Julia Gordon that in addition to Rotherham she had dealt with a large number of registrations, all of which had succeeded and the majority of which had no breaches at the registration inspection, any breaches being minor and rectified within 2-3 days. 

 

125.       TRIBUNAL’S FINDINGS IN RESPECT OF THE ISSUES WITH REASONS

126.       Should the October 2009 be taken into account by the Tribunal since it was an inspection of Parkfield not of Rotherham?

 

127.       This issue was resolved as a preliminary issue and the Tribunal reasoning is set out above. The panel reconsidered the question during its deliberations and concluded that there had been no evidence or submission made after that initial decision which necessitated a revision of it. Indeed, the evidence heard supported the earlier decision because it reinforced the artificiality of considering the facts applying to Parkfield as completely separate to those of Rotherham given the motivation of the registration, namely to provide seamless service but to allow the clinic to operate with the same management team, staff and premises but minus the debt burden associated with Parkfield.

 

Was the June inspection undertaken by inspectors who were biased against the Applicant/Parkfield/Rotherham?

 

128.       This issue was effectively narrowed by the close of Dr Bhatnagar’s evidence to an allegation that Julia Gordon had determined to close the clinic down and had acted to that end.  However it is important to put that allegation into context because the Applicant initially alleged that several inspectors had shown bias towards him, and in his written closing submissions Dr Bhatnagar appears to resurrect the claim of bias against other inspectors: ” The way the whole process of registration was conducted and various conflicting evidence that has been given by Julia Gordon and others confirms that either the assessors were incompetent or biased”.

129.       Adam Kennaugh said in his evidence that he believed his treatment as part of the RM/RI application indicated bias on the part of CQC. When asked by Ms Sullivan about the fact that the inspectors have to judge against actual standards, he replied “If they are biased against us it’s not fair”. Ms Sullivan suggested that for some standards there is objective evidence “Either the policies are there or they are not” to which he responded “Well, hopefully they wouldn’t change them……”

130.       Ms Sullivan also asked Mr Kennaugh about his statement where he alleged “obvious bias” and asked whether he still felt that Ms Gordon was biased. He replied that he did because she had not actually said that he could not be both RM and RI and that he believed that she said the June report was delayed because she was taking advice when in fact it was so the administrators would be called in. He said “There were failings, yes, but why were we allowed to continue? If they thought it was that bad they could’ve closed us there and then”.

131.       Ms Sullivan suggested to Mr Kennaugh that items like the syringe could not be said to be formulated because of bias. His response was “They weren’t open and honest. They planned the visit so I wouldn’t be there. It’s underhand”  

 

132.       The panel concluded that Mr Kennaugh’s attitude as evidenced by his statement and the above exchanges, which are examples of a consistent theme in his evidence, exemplified his approach of minimisation of the failings. Without any evidence whatsoever he alleged bias apparently as a smokescreen. The panel concluded that this attitude was and is pervasive and that they could have no faith whatsoever in Rotherham achieving or maintaining the minimum standards as required  with his continued involvement. Ms Gordon came as close as she professionally could to saying that his application to be the RI as well as RM would not succeed. The visit was properly planned to see the situation as it was “on the ground”. The tribunal reject any suggestion that there was anything underhand or biased in relation to the inspection timing.

 

 

 

133.       The panel concluded that the evidence given by Alan Swain was honest, straightforward and professional. He demonstrated a slightly more relaxed attitude than some others during inspections and was regarded by the Applicant as more “on his side”. The panel did not assess that Mr Swain was either “for” or “against” the Applicant. He agreed in cross examination that he was unaware that any change had been made to his assessments for the June inspection, yet he was Quality Assurance officer for that inspection. Further, his initial advice about whether Adam Kennaugh could be RI and RM was ill informed and had to be changed. The panel therefore concluded that he had a less detailed approach than some other inspectors may have taken. He denied bias and the panel accepted his denial. If there had been any collusion between the inspectors there would no doubt have been a consistent approach to whether a standard was met, not met or almost met. In fact, Julia Gordon altered some of the assessments in her role as lead inspector, whereas this would not have been necessary if they were all colluding to achieve the failure of the clinic.

134.       Julia Gordon’s evidence was prolonged due to the interposing of other evidence due to witness availability. She impressed the panel as a highly confident and competent individual who explained her actions carefully and justified her findings as necessary. She was swift to own up to her own errors and maintained a professional composure during allegations of bias, and, during cross examination by Dr Bhatnagar, allegations of lying under oath. Dr Bhatnagar alleged during his cross examination of Alan Swain that she had been brought in “to close him down”, whereas her evidence of appointment due to geographical reorganisation was clear and compelling. Dr Bhatnagar researched overnight during the course of her evidence the fact that she had undertaken inspections in West Yorkshire even after the geographical relocation. He put this to her as evidence of lying. She explained that she had been asked to cover some inspections for a colleague on long term sick leave. The Tribunal concluded that her evidence was honest, and that there was no actual evidence to demonstrate any bias on her part. Dr Bhatnagar appeared to accept when cross examined by Miss Sullivan that his allegations were based on “feelings” rather than hard facts. He appeared totally incapable of understanding the necessity of an evidential base before launching into such serious allegations.

135.       Julia Gordon explained to the Tribunal that if there is a “requirement” imposed it means there has been a breach of the regulations irrespective of whether the standard is assessed as “almost met” or “not met”.

136.       In respect of C26, medical devices and decontamination, Lynne Lord reported the standard was ‘met’ whilst another, Julia Roper, reported that the standard was ‘almost met’. Julia Gordon recorded this in the final report as ‘not met’.  She accepted in oral evidence that she missed Lynne Lord’s  note that the relevant equipment was clearly decommissioned and agreed with hindsight she should have recorded it as ‘almost met’ (but not “met” because of the inconsistencies in the policies). 

137.       In respect of C16 (workers concerns): this appears in the report as ‘not inspected’ but should have said “met”.  This was an error admitted by Julia Gordon.  The report had made no requirements in respect of this standard.

138.       In respect of C15 (patient guide) Julia Gordon stated that this was changed from ‘almost met’ to ‘not met’.  In her evidence she agreed with the panel suggestion that this could be seen as a borderline ‘almost met’.  A further, admitted, error was that Requirement 48 indicated that it was made in respect of standard C21 when in fact it was made in respect of standard C17.

139.       Given the number of standards inspected the panel accepted Ms Sullivan’s submission that two errors and two breaches which could have been recorded as ‘almost met’ rather than ‘not met’ does not indicate either incompetence or bias. The panel concluded that the errors were unfortunate, and would have held much greater weight had there been fewer breaches. In this case the panel have to look at the total number of breaches, taking into account these errors, and consider the overall effect. Compared to some of the very serious and important inspection breach findings, some of which were admitted, these were very minor matters which the Tribunal concluded were not evidence of incompetence or bias. The explanations Ms Gordon gave for the other changes in the report were within her professional discretion, a discretion which was clearly outlined by other witnesses, and which undoubtedly exists when a lead inspector is pulling together the views of several inspectors.

140.       The Applicant relied on the briefing document  by Brian Silverwood to indicate that Mr Silverwood’s view was that Ms Gordon was biased and should not undertake inspections at the clinic. The panel heard from Mr Silverwood that the document was intended to prevent any future allegations of that nature and was written to encourage the introduction of a new team to a clinic which had undergone a prolonged period of intensive investigation. Mr Silverwood stated that he did not in any way intend to impugn the character of any of his colleagues, which the panel accepted.  Ms Gordon endorsed the briefing document and the notion that change at that time was appropriate. The panel concluded that the Applicant lacked insight into the true nature of this document. It was clear to the panel that the document was well balanced and well meant. Mr Silverwood had done all he could for Dr Bhatnagar and the clinic, and genuinely believed that the way forward was for a new team.

141.       The Applicant described Ms Gordon as “curt”. Ms Gordon did not display any behaviour during her lengthy evidence which could come within such a description, and she remained composed throughout. None of her colleagues described her in terms other than highly professional and competent. Ms Gordon is not “over friendly” or chatty. She is not a woman who indulges in small talk and the panel assess that Dr Bhatnagar wrongly interpreted this approach as unhelpful or biased. Adam Kennaugh commented that she did not use pleasantries. He said “maybe it was just her manner. Alan would always say ‘How are you?’ and so on”. He was particularly aggrieved that at his interview with Ms Gordon “the fibres on my shirt were separated” , apparently by a splinter on a CQC desk and that Ms Gordon simply referred him to the complaints policy. It was an expensive shirt and he felt that she could have done more. He also compared Ms Gordon’s style to that of Alan Swain. She said that if he needed to compose himself he should feel free to take a break. Alan Swain was “much more friendly”. Again, Mr Kennaugh alleged that this was evidence of bias against the clinic, which the panel rejected in its entirety. The panel concluded that evidence of a professional who guides one to a complaints policy when one’s shirt is snagged and offers breaks during an interview cannot be interpreted as any evidence of bias or ill – will on any rational basis.

142.       The panel was satisfied that Julia Gordon acted professionally throughout, and that there was no evidence whatsoever that she had been unhelpful. Indeed, in one email to the Applicant, which he drew to the Tribunal’s attention as an example of her being “curt”, there was clear evidence of Ms Gordon giving assistance by drawing the Applicant’s attention to helpful  guidance to be found on the internet. She went as far as she could professionally could to point Dr Bhatnagar in the right direction, where others may simply not have done so.

143.       The Applicant suggested that the delay in providing the draft June report and the lack of feedback session following the inspection prejudiced him given the financial problems that Parkfield was in, due to the need for a speedy registration of Rotherham if his plan was to succeed. He alleged that the delay was deliberate on Julia Gordon’s part so that he would go out of business before the Rotherham decision was taken and that by then Parkfield would be in the hands of the Receiver. The panel were not satisfied that there was any malicious intent on her part. The panel found that the delay was caused by the need to consider the legal position and for managerial decisions to be taken. The panel also found that the delay was unfortunate for Dr Bhatnagar given his situation and can understand the frustration he felt, however there was simply no evidence that the delay was deliberately caused so that Parkfield would go into administration and Dr Bhatnagar's plans would thereby be thwarted.

144.       Christine Evans gave evidence upon some important issues, including the insecure drug cabinet keys and the loaded syringe/ intubation equipment. The panel assessed her evidence as balanced, measured and clear and there was no reason to doubt her professionalism or honesty. She was clear that there had been no “agenda” to close the clinic down, and that the team were only acting on the briefing document which they had been given. The tribunal accepted her evidence that there was no prior discussion of an expected outcome to the inspection.

145.       Mr Brian Silverwood had a different style. He is engaging and more “chatty” but still highly professional. He was slightly uncomfortable as he gave his evidence.  However the panel was entirely satisfied that this was not due to any dishonesty or bias on his part, and was simply a reaction to unfamiliar surroundings and circumstances. Mr Silverwood was frank that after nine inspection visits to the clinic he felt he and his team could do no more and that there needed to be a fresh approach. He did not criticise any of his colleagues, indeed he clearly respected them all. He said that in 2009 he had heard no gossip or rumours that there was a plan to shut the clinic down. In fact, he had heard from Alain Swain, his successor as lead inspector, that things had improved, and whilst he might not have waited as long as Mr Swain to inspect the clinic after the handover he was uncritical. He was fair in stating that there were merits in differing approaches and accepted that there was a clear view that it was appropriate after an intensive period of investigation that there be a period to consolidate and see whether things had improved.

146.       Mr Ian Biggs gave evidence that he had never heard of the provider, Dr Bhatnagar or the clinic prior to the application on behalf of Rotherham. Julia Gordon’s evidence in respect of the formation of the June report was interposed in his evidence so that he could hear evidence of the process. He was clear that nothing in the evidence he had heard or read since his decision would alter his view.

147.       Amanda Musgrave has been employed by the Care Quality Commission and its predecessor as a Compliance Manager since September 2004. She is a Registered General Nurse and has current professional registration with the Nursing and Midwifery Council. She is a trained investigator to a National Occupational Standards level and has attained a BTEC Level 5 Investigative Professional Practice award.

 

148.       Ms Musgrave had attended the Birkdale Clinic (Rotherham)  on five occasions, twice as part of the inspection team on 27 July 2005 and 4 September 2006 and on three further occasions when she accompanied Brian Silverwood on monitoring visits to assess progress against outstanding requirements identified at earlier inspections.

 

149.       Dr Bhatnagar cross examined Ms Musgrave on the standards and the weight to be attached to each. She agreed that some parts of each standard may be more significant than others, and that whilst the record is subjective to a certain extent, it depends on an assessment of risk which she viewed as consistently applied. She denied any plan to shut the clinic down and emphasised that all enforcement visits are unannounced to enable inspectors to see “the situation on the ground”.

 

150.       Julia Roper gave brief evidence. She was clear that the standards she found “almost met” in June were correctly applied and she told the panel that as a lead inspector she had had to change the assessments of others as part of a final report. Dr Bhatnagar asked her whether she was surprised that 4 standards she had said were “almost met” had been changed to “not met” by Julia Roper. She replied “No. I’ve done the same thing myself”

 

151.       Dr Bhatnagar gave extensive evidence about the history of the clinic and his success in previous years. He is clearly in much reduced circumstances and has lost the status of a well respected, almost feted, business man to selling spectacles and carrying out non regulated activities. The GMC findings against him have clearly affected him and he feels that the panel was incorrectly constituted, they applied the law incorrectly and that when he pointed that out to them “they said ‘Whatever’ and they fudged it.”.

 

152.       The GMC enquiry and the allegations of dishonesty made against Dr Bhatnagar have affected his ability to maintain lucrative contracts and were part of the reason for the ailing fortunes of Parkfield. He was suspended from practice for six months. The papers from the GMC hearing were available at this hearing, however Dr Bhatnagar did not seek to go behind the findings and the Respondent did not seek to rely on them to prove the allegations in respect of Rotherham’s application.

 

153.       Dr Bhatnagar told the Tribunal that, when they knew the June inspection was not going to be carried out by Mr Swain, the management team were worried. “Some staff said they’ll dig for faults.”, however “I wasn’t worried about breaches. I didn’t know there were any” He felt that if he had been told in advance what was going to happen, namely a full inspection, he could have been “properly prepared.”

 

154.       In respect of the report writing Dr Bhatnagar stated “A lot of the final report judgments were changed by Julia Gordon. If they weren’t changed most could be put right within a week. Yes, there were some (breaches), some were significant but lots were fine” When the team received the report Dr Bhatnagar admitted that he was shocked. “I said this is absolutely unacceptable. We went through the whole thing. Julia Gordon was biased in June and incompetent. Brian Silverwood said in the hearing that he was stressed and he excused himself. Julia knew of that and my feeling is that it proves she was already thinking “I’m not going to get stressed about it so let me see how I can turn it round and show breaches. She got what she wanted and she walked out.”

 

155.       The panel have considered the changes made to the individual assessment results in great detail. They are set out in paragraph 66 above. There is no evidence of bias contained therein. Each change was justified on the ground of professional discretion and there was no evidence whatsoever that Ms Gordon had any intention of avoiding stress by finding breaches. It is the nature of discretion that there is a generous ambit within which disagreement is possible. Dr Bhatnagar failed to demonstrate that, save for the two admitted errors, any of the findings was plainly wrong. Two errors are very unfortunate but are not indicators of incompetence. The facts remain that the June inspection demonstrated a very wide range of failings which were a disgrace to the provider. The Tribunal are satisfied that enforcement  proceedings were inevitable in respect of Parkfield and that these were not minor matters which could have been put right in a short period of time if Dr Bhatnagar were to have been given a chance. On the contrary, the findings were made by the experienced and committed inspectors and Dr Bhatnagar’s attitude towards them demonstrate that it would have been entirely wrong to register Rotherham as a provider in 2009 because he could not see that there was anything wrong. The ongoing failure to understand the true seriousness of the breaches and the continued attempt to deflect the tribunal’s view towards findings of bias and incompetence against those inspectors right up to the hearing and beyond, as demonstrated by the written submissions submitted by Dr Bhatnagar, show that registration would still be improper, unjustifiable and wrong in law.

 

Was the outcome of the inspection in June 2009 undermined as there was no feedback session at the end?

156.       There is no requirement in the Regulations or other documentation that a feedback session must take place at the end of the inspection process, although all witnesses were clear that it is good practice to have such a meeting if it is at all possible. The panel concluded that it was not possible or appropriate to have a feedback session at the end of the June inspection. This was because Julia Gordon wanted to reflect upon the significant number of breaches identified on the full inspection – which had dramatically risen from 3 or 4 requirements in the Birkdale/Parkfield inspections under Alan Swain. The matter had therefore become much more complex, not all the inspectors were present and Ms Gordon frankly admitted that she wanted to take advice. The panel concluded that any attempt to hold a feedback session under such circumstances would have been unsatisfactory all round. Feedback sessions are not held to give providers an opportunity to talk their way out of breaches, as Dr Bhatnagar apparently believed, but to give an accurate summary report of the main findings of the inspection. Since that could not be done “on the spot” there was no prejudice to him or his management team by the failure to hold a feedback session on this occasion.

157.       Dr Bhatnagar submitted that the lack of feedback session meant that he could not “clear up” matters of concern. In previous inspections he felt that feedback sessions had enabled him to correct any errors and to discuss the way forward. The fact that Julia Gordon had denied him this opportunity led him to allege bias against her and that the whole report was undermined. The tribunal concluded that the lack of feedback did not indicate bias on her part nor did it undermine the June report overall. There would have been the opportunity to perhaps correct very minor errors, however the panel decided that Dr Bhatnagar could not have made any significant impact upon, or talked his way round, the vast majority of the breaches which were found had he been afforded a feedback session.

 

Did Mr Biggs undertake a full and proper investigation in coming to his decision in March 2010?

158.       Dr Bhatnagar suggested that Mr Biggs had not fully investigated the matter when it was put before him, that he had mixed up the RM/RI application of Adam Kennaugh with the registration application and that he should have delayed the decision until the outcome of Mr Kennaugh’s application once it had been remitted. The panel concluded that the time taken of two half days plus time for identification of questions, consideration of the responses and formulation of his opinion was sufficient time for Mr Biggs to fully and properly investigate the matter and that there was adequate evidence of this in the questions raised and the ultimate response. Mr Biggs identified that he could have given a more detailed account of his rationale, with which the panel agreed, however this did not undermine the basic decision making process.

159.       Dr Bhatnagar apparently believed that Mr Biggs had amalgamated the responses in respect of both the complaints raise in relation to both applications in respect of Mr Kennaugh and Rotherham. In fact that was not the case. There were two separate responses. The Tribunal did not find that there was over emphasis in the Rotherham report upon the RM/RI issue. Indeed, it would have been wrong to omit any reference to this issue. The panel accepted Mr Biggs evidence that he relied on the identified breaches as sufficient to refuse registration. He was clear that any errors in reports, including his own, however minor, are of concern however he clearly felt that they needed to be put into context. Whilst the June report was not 100% accurate in his opinion the errors were not such as to be significant, bearing in mind the overall picture of extensive breaches of the relevant standards.

160.       Overall the tribunal concluded that Mr Biggs had not acted from bias or other motive. His assessment was professional and his reasoning straightforward and clear: significant and extensive breaches of the relevant standards meant that the refusal of registration was appropriate. He had devoted sufficient professional time to the application, and had given Dr Bhatnagar every opportunity to present his case leading the panel to decide that he had made a full and proper investigation of the circumstances surrounding Dr Bhatnagar’s application.

 

Have the HCC and CQC have made a series of mistakes in respect of Dr Bhatnagar and companies controlled by him over a number of years and is their refusal to register Rotherham part of that pattern?

 

161.        In the panel’s view evidence of past mistakes do not necessarily lead to the conclusion that mistakes have been made in respect of this application for registration and the appeal which flows from the refusal of it, and therefore evidence of such is of limited relevance and evidential value. The tribunal concluded that this “issue” raised at the start of the hearing formed part of the Applicant’s overall submission of bias and incompetence. The panel’s reasoning in respect of bias is set out elsewhere.

162.       The panel decided that the relevant question to ask itself was: “Were the inspections of July and October 2009 so incompetently carried out that the appeal must succeed since the tribunal could not be satisfied that there were any breaches of such significance to warrant refusal of registration? If the answer was yes, then past errors do not assist the decision making process and the appeal would succeed. If the answer is no, a past history of mistakes or errors is irrelevant and there can be no “pattern”. The panel concluded that there were very few errors in the inspections which were carried out in a professional and diligent manner. Such errors as there were are of no significance when compared to some of the very serious breaches which were undeniably found, and even acknowledged by the Applicant, albeit excused by him on the grounds of standard practice or the failings of others. The Tribunal is therefore not satisfied that this allegation of a pattern could be found proved in any respect and did not find the issue of any past errors helpful or relevant to the decision making process in respect of this appeal.

Was there a failure by the CQC to follow operational guidance?

163.       The Tribunal accept the submission made by Ms Sullivan that even if the guidance had applied to these circumstances, which the panel were far from satisfied that it did, there is an overriding discretion to hold a full inspection because of the need to be satisfied that the criteria for registration are met. Even based on the admitted breaches alone the Tribunal have concluded that the CQC took appropriate action and would have been open to severe criticism had they taken any other course.

Was the Appellant treated differently from other providers?

164.       Dr Bhatnagar and Adam Kennaugh believe that Rotherham was treated differently from other providers. This issue is of course bound up with the allegation of bias against Julia Gordon and her colleagues, however it has a wider aspect. Mr Kennaugh gave evidence that he frequently sees breaches of the NMS by other providers. Indeed he told the panel that he had witnessed breaches in the very week he gave evidence. When asked whether he had reported these breaches to CQC or any other responsible body he said he had not and that he would await their inspection report. The tribunal found this attitude very hard to understand given the level of professionalism and integrity claimed by Mr Kennaugh. If significant breaches were observed by him in any establishment the panel felt it would be incumbent upon a professional to alert those with management responsibility, or the regulator there and then and to ensure that patient safety was not compromised. Instead, Mr Kennaugh stored his observations as “evidence” that other provider’s get away with breaches whereas Rotherham and Parkfield did not. The panel felt that such conduct is reprehensible, and were surprised that Mr Kennaugh seemed oblivious to the fact that “two wrongs don’t make a right”.

165.       Dr Bhatnagar relied heavily on the alleged “different” treatment of a clinic in Wakefield. He claimed that the fact that this particular clinic had been allowed to continue in business despite a great number of requirements demonstrated how he had been unfairly treated. This again illustrated his inability to comprehend the difference between an ongoing inspection procedure and a registration application. In the former there may be a period of time before enforcement proceedings are commenced to allow breaches to be rectified. In the latter the Commission must be satisfied that the standards will be met. In fact enforcement proceedings had been commenced by CQC once they had been able to carry out an inspection of the clinic in question. The panel did not find that any of this evidence, or the extensive written evidence provided in the bundle and in Dr Bhatnagar's written submissions demonstrated any favourable treatment of other providers or discrimination against the Applicant.

 

Were the relevant regulations being complied with or will they continue to be complied with (s 13(2) CSA)?

166.       In relation to the evidence in respect of staff appraisals given by Adam Kennaugh he accepted that in the action plan submitted in September 2009 it was said all staff appraisals had been carried out when he knew they had not, but was hoping they would do so.  Ms Sullivan submitted “In the light of that evidence, other statements as to compliance cannot be simply accepted as correct.” The Tribunal accepted this was just one example of an attitude to regulation pervasive at the time of the June and October inspections and continuing at the time of the hearing. The panel found that in each case of the breaches of regulations set out in the evidence of the Inspectors (as corrected during the hearing) their evidence was to be preferred in every respect over that of Dr Bhatnagar and Adam Kennaugh whose entire view of the minimum standards showed a complete disregard for the need for such standards to be met other than to pay lip service to obtain and maintain registration.

167.       The panel concluded that the June inspection demonstrated that only half of the NMS were being met., the management ethos was one of disregard for CQC and the NMS and the corporate view was that all is well if nothing serious has happened to the patients. As a result of the breaches, safety was potentially compromised to such an extent that a very serious incident could quite easily have occurred. Whilst the NMS are a tool, they are minimum standards. They were only half being met. The system at Parkfield was simply not safe. Enforcement procedures were not evidence of bias but of necessary action to protect patients. There was no evidence of any change of ethos or recognition of serious failings at the Tribunal hearing, it was clear that any future compliance would be grudging, reluctant and enforced only by continuous inspections. The panel felt that there was no evidence that the Rotherham management team could reach any acceptable level of compliance.

 

 

What weight should be given to the October 2009 inspection as it was an inspection of Parkfield?

 

168.       The Tribunal considered Dr Bhatnagar’s submissions that this was an inspection of a different legal body an that the weight given to the evidence must therefore be less than the weight given to the Rotherham inspection in June. Having concluded that the evidence of the later inspection was admissible and relevant it would have been inappropriate for the panel to exclude the factual material from the decision making process. The October inspection was however of a different provider and under the “inspection” rather than the “registration” regime. The panel therefore bore those facts in mind when considering the evidence as a whole, more weight being given to the evidence of attitude to compliance in general and to factual safety issues than to progress from the June report which had only recently been received.

TRIBUNAL’S OVERALL CONCLUSION WITH REASONS

The keys to the drugs cabinet.

169.       The panel concluded that the attitude of Dr Bhatnagar and Adam Kennaugh in respect of this issue epitomised their lax standards and justification for breaches. “Yes, the drugs were in a locked cabinet, but they would take a long time to find…..but a thief could have smashed the cabinet…. but the ward area was secured…..” This was a serious breach of minimum standards, and their failure to recognise that seriousness was and remains a very significant concern.

 

The loaded syringe

170.       During cross examination Ms Sullivan asked about the layout of the clinic. Dr Bhatnagar agreed that in an emergency after surgery one would need to run down to the theatre to collect the loaded syringe which would take rather longer than simply loading one by the patient’s side. He said that it was the anaesthetists who recommended the practice and that he thought that it was “good enough. I didn’t object to them doing it”. Ms Sullivan also pointed out to Dr Bhatnagar that there was a discrepancy between his original comments, which were that the syringe should have been cleared away and his version during the hearing which was that there was a clear need for it to be there. She suggested that Dr Bhatnagar was just trying to explain it away, which he denied. The panel were satisfied that Dr Bhatnagar was in fact making this policy up as he went along, and blaming others for the situation. He was caught out by the fact that this policy was unknown to the RM, Adam Kennaugh and the fact that Ms Sullivan demonstrated that he had changed his story. The tribunal was satisfied that this was clear evidence of fabrication and dishonesty and preferred the evidence of Ms Evans as to correct practice and procedure over that of the Applicant in every respect. Again, Dr Bhatnagar’s “explanation” raised very serious concerns about his attitude to compliance with basic standards.

 

The appraisal of Dr Rezai

171.       The panel considered Dr Bhatnagar’s oral evidence on this point very carefully. The evidence was drawn out by Ms Sullivan in a very skilful piece of cross examination. She took Dr Bhatnagar to first one, then another, then another almost identical “yearly” appraisal of this doctor, signed by him.  The documents showed very clearly that at best only one of the three appraisals had been conducted as anything more than a paper exercise.

 

The Findings sought on the Scott Schedule not covered elsewhere.

 

172.       It is clear from the Panel’s findings that in all respects the evidence provided by the Respondent’s witnesses was preferred to that of the Appellant.  For the avoidance of doubt however the Tribunal records that save for the two errors of recording standards admitted by Julia Gordon, and taking into account the two “borderline standards” of not met/almost met and treating them as “almost met”, that each and every allegation on the Scott schedule is found proved on the balance of probabilities.

DECISION

It is our unanimous decision that the appeal be dismissed.

 

So ordered.

 

Tribunal Judge Nancy Hillier

Lead Judge Care Standards

28th December 2010.