Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 7 April 2011 at Field House under reference PHL/15335) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.

DIRECTIONS:

A.          The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal.

B.          In particular, the tribunal must identify any relevant factors that it has to take into account, resolve any disputes on matters of fact material to those factors, and conduct a balancing exercise to decide if Dr M should be removed from the list. It must set out those factors, record its findings of fact together with the reasons why it made them, and explain how it analysed their overall effect.

Reasons for Decision

A.          History and background

1.           The appellant is Dr M. The respondent is Trafford Primary Care Trust (the PCT). The PCT removed Dr M from the list under regulation 10(3) and (4)(a) of the National Health Service (Performers Lists) Regulations 2004 (SI No 585). Dr M appealed against that decision to the First-tier Tribunal, but the tribunal dismissed his appeal. I gave him permission to appeal to the Upper Tribunal.

2.           I do not need to repeat the sequence of events that led to this decision. They are set out accurately in the First-tier Tribunal’s decision. It is sufficient to say that they date back to a prescription issued by Dr M when a locum doctor. He prescribed amoxicillin for a patient whose records showed that she was allergic to penicillin. He did discuss the medication with the patient, but their accounts of the discussion differ. He says he asked if she was allergic to penicillin; she says he only asked her about allergy to antibiotics, which she did not associate with penicillin. Either way, she developed a rash after taking the medication while on her honeymoon. It is not possible to say that the medication caused the rash, because she had previously been prescribed amoxicillin without ill effect. There followed complaints to the PCT, the General Medical Council, the Health Services Ombudsman and the Healthcare Commission. Dr M did not engage as fully as he might in those proceedings, although he has put forward an explanation for some of his lack of involvement.

3.           The appeal to the First-tier Tribunal was heard on the papers without an oral hearing. The tribunal’s reasons cover six pages. They set out the legal framework, summarise the evidence, set out Dr M’s account and end with the tribunal’s consideration. This final section covers just over a page. The tribunal resolved some issues of dispute, but not all. The final section of the reasons amounts to a sustained criticism of the doctor’s conduct following the prescription of amoxicillin.

4.           Regulation 10(3) and (4)(a) of the 2004 Regulations provide:

(5) Where a Primary Care Trust is considering removal of a performer from its performers list under regulation 10(3) and (4)(a) (“an efficiency case”), it shall–

(a) consider any information relating to him which it has received in accordance with any provision of regulation 9;

(b) consider any information held by the Secretary of State as to any record about past or current investigations or proceedings involving or related to that performer, which information he shall supply, if the Trust so requests; and

(c) in reaching its decision, take into account the matters referred to in paragraph (6).

(6) The matters referred to in paragraph (5)(c) are–

(a) the nature of any incident which was prejudicial to the efficiency of the services, which the performer performed;

(b) the length of time since the last incident occurred and since any investigation into it was concluded;

(c) any action taken by any licensing, regulatory or other body, the police or the courts as a result of any such incident;

(d) the nature of the incident and whether there is a likely risk to patients;

(e) whether the performer has ever failed to comply with a request to undertake an assessment by the NCAA on or before 31st March 2005 or thereafter by the NPSA;

(f) whether he has previously failed to supply information, make a declaration or comply with an undertaking required on inclusion in a list;

(g) subject to paragraph (9), whether he has been refused admittance to, conditionally included in, removed or contingently removed or is currently suspended from any list or equivalent list, and if so, the facts relating to the matter which led to such action and the reasons given by the Primary Care Trust or the equivalent body for such action; and

(h) whether he was at the time, has in the preceding six months been, or was at the time of the originating events a director of a body corporate, which was refused admission to, conditionally included in, removed or contingently removed from, any list or equivalent list, or is currently suspended from any such list, and if so, what the facts were in each such case and the reasons given by the Primary Care Trust or equivalent body in each case for such action.

C.          analysis

5.           I have set the tribunal’s aside, because its findings and reasons are inadequate to justify its decision to confirm Dr M’s removal under regulation 10. This is why.

6.           First, regulation 11 provides for the factors to be taken into account. They are not comprehensive, so the tribunal is not limited to them. Nor will they all necessarily be relevant, so the tribunal does not have to consider ones that do not arise in the particular case. What the tribunal must do is form a balanced judgment of the overall and combined effect of the factors that are relevant. It may have done that in this case, but its reasons do not show it. The tribunal’s reasons contain pretty much all that can be said against Dr M, but nothing in his favour. The tribunal had to take account of factors in Dr M’s favour and there were such factors. For one, the sequence of events all stemmed from one prescription. For another, there was the doctor’s previous record of efficiency. Then, there was the doctor’s clinical record and the likely risk to patients. I do not intend this to be exhaustive, merely illustrative. The tribunal’s reasons are inadequate for failing to show how it took into the balancing exercise the factors in Dr M’s favour.

7.           This links to the purposes that reasons fulfil. One purpose is to allow the party who has lost to understand why. When applying regulation 11, that requires more than setting out the case against the party. It involves setting out how the tribunal balanced the factors for and against the removal of the doctor. Specifically, the tribunal in this case failed both to identify the factors in Dr M’s favour and to show how it had assessed their overall significance in conjunction with other factors. Those are essential elements in any explanation to Dr M of why the tribunal dismissed his appeal, but they are missing in this case.

8.           Second, the tribunal did not make the necessary findings of fact to provide a foundation for its application of regulation 11. In order to undertake the balancing exercise that I have mentioned, the tribunal must not only identify any relevant factors, but must also resolve any conflicts in the evidence relevant to those factors. In this case, there were some factual disputes. This was directly relevant to regulation 11(6)(d) – the nature of the incident and likely risk to patients. If penicillin was actually discussed, there is no evidence of any clinical risk for patients. Also important was the dispute about the discussion with the patient before Dr M prescribed amoxicillin. If Dr M had expressly asked the patient about penicillin, that might help to explain and, perhaps, to some extent to mitigate his reaction to the subsequent proceedings.

9.           The PCT has responded to this appeal. However, its submission essentially repeats its opening statement to the First-tier Tribunal. It largely states the history of the case and does not address the issue whether the making of the decision by the First-tier Tribunal involved the making of an error on a point of law: section 12(1) of the Tribunals, Courts and Enforcement Act 2007. It does not contain any relevant points that I need to deal with in this decision. 

10.        As the tribunal did not make the necessary findings or give adequate reasons, I have set aside its decision. The experience of the specialist members of the First-tier Tribunal will be relevant in assessing Dr M’s efficiency, so I have directed a rehearing rather than re-make the decision. Nothing that I have said should give any indication of the proper outcome for the rehearing, because I have not formed any view on that issue.

11.        Dr M has represented himself before both the First-tier Tribunal and the Upper Tribunal. It might assist him to obtain legal representation for the rehearing. That would allow his case to be presented more objectively. The First-tier Tribunal will also benefit from his answers to their questions if he were to attend an oral hearing.