Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  HPHL/1718/2012

ADMINISTRATIVE APPEALS CHAMBER

 

BEFORE UPPER TRIBUNAL JUDGE WARD

 

Attendances:

 

For the Appellant: Mr S Samarasinghe, Solicitor, Sam and Co

 

For the Respondent Mr R Booth QC instructed by Capsticks

 

Decision: The appeal succeeds to a limited extent, as follows.  The decision of the First‑tier Tribunal sitting at Pocock Street, London SE1 on 12‑15 December 2011 under reference 2011 15368.PHL involved the making of an error of law and is set aside.  The case is remitted to the same First-tier Tribunal for its reconsideration and reformulation of its decision in adequately stated reasons.  Liberty to apply in relation to giving effect to this decision.

 

REASONS FOR DECISION

 

Background and scope of appeal

 

1. This case is an appeal, brought with my permission given on limited grounds, against a decision dated 3 January 2012 by the First‑tier Tribunal upholding the decision of the predecessors of the respondent, communicated by a letter dated 4 February 2011, refusing to include the appellant in the performers list pursuant to regulation 6(1)(a) of the National Health Service (Performers Lists) Regulations 2004/585 (“the PL Regulations”).  (Those regulations have since been revoked subject to savings and transitional provisions and replaced by the National Health Service (Performers Lists) Regulations 2013/335.) The proceedings have been keenly contested throughout, with numerous interlocutory applications at First-tier Tribunal level and at Upper Tribunal level a much wider range of grounds being put forward than the appellant has been permitted to pursue.  The challenge in the form in which it has been permitted to go forward is a “facts and reasons” challenge, albeit one which raises issues of the significance of the jurisdiction of the General Medical Council under the Medical Act 1983 (“the 1983 Act”) to the exercise by the relevant primary care trust (as predecessor of the present respondent) (“the PCT”) when the PCT was exercising its jurisdiction under the PL Regulations.  My grant of permission (with a clerical error corrected), given after an oral hearing, was in the following terms:

 

“I give permission to appeal, limited to whether the tribunal erred in law in its decision of 3 January 2012 by failing to make sufficient findings of fact and/or by giving legally insufficient reasons in support of its view that [the appellant] was “unsuitable” within regulation 6(1)(a) of the National Health Service (Performers Lists) Regulations 2004; and specifically whether the tribunal’s duty to give legally sufficient reasons requires it to explain why, in the face of a finding by the fitness to practise panel that Dr Shah’s fitness to practise was no longer impaired, the tribunal was able to conclude that he was nonetheless ‘unsuitable’ given that both bodies had found that he had committed the acts alleged.”

 

2. The allegations against the appellant were put to the First‑tier Tribunal in the following terms:

 

“(1) On 7.11.01 the appellant performed an internal examination of patient A’s vagina (a) without the presence of a chaperone; (b) without his first having offered to patient A the opportunity to have a chaperone present.

 

(2) Between approximately August 2001 and December 2005 the appellant performed further internal examinations of patient A’s vagina (a) without the presence of a chaperone; (b) without his first having offered patient A the opportunity to have a chaperone present;  (c) and  he failed to record, adequately or at all, after each consultation the fact that such internal examinations had been performed by him.

 

(3) On 2.12.05 patient A, complaining of hip pain, attended a consultation with the appellant.  During his examination of patient A the appellant inappropriately touched her breasts under her clothing.  This touching was not clinically justified and was sexually motivated. 

 

(4) In July 2009 a Fitness to Practise Panel of the GMC found the facts set out in paragraphs 1-3 inclusive above to have been proved.  The appellant did not appeal that finding. 

 

(5) At a FTPP review hearing on 15.7.10 the appellant through his solicitor submitted that ‘the previous incident was out of character and that he had insight into his misconduct’.

 

(6) By a letter dated 15.7.10 [sic – 22.7.10 may have been intended] the appellant wrote to David Amess MP to say that he had never accepted that he did any misconduct and alleged that new evidence had come to light which threw doubt on patient A’s complaint.  The appellant still did not seek permission to appeal (admittedly, out of time) the findings of fact made by the FTPP in July 2009.

 

And that because by reason both of his conduct towards patient A and of his lack of integrity regarding the issue of insight, the appellant is unsuitable to be included on the respondent’s performers list.

 

And further or alternatively that the appellant’s inclusion in the respondent’s performers list would be prejudicial to the efficiency of the services to be provided by those on the list.”

 

Primary Care Trusts and the Performers Lists

 

3. PCTs were created by section 16A of the now repealed National Health Service Act 1977 (as amended) (“the 1977 Act”).  Individual PCTs were created by orders under that Act with statutory functions in connection with, amongst other matters, the provision, or arranging the provision, of primary health services in a defined geographical area.  One of their functions was to operate the PL Regulations, originally made under sections 28X and 126(4) of the 1977 Act and, following the consolidation of legislation in the National Health Service Act 2006, having effect under sections 91 and 106 of the latter Act. Regulation 3 required a PCT to prepare and publish “performers lists” for certain health professionals, including a medical performers list.  It is a public document.  In the case of medical performers, the lists were to be compiled in accordance with Part 1 of the PL Regulations which contained general provisions and Part 2, which related specifically to doctors.  A person (known as a “performer”) seeking inclusion of his name in a performers list was required by regulation 4 to provide a variety of information, including such matters as details of his professional experience, referees and, by regulation 4(4) (subject to an immaterial proviso):

 

 “The performer shall send with the application a declaration as to whether he –

… 

(h) has been subject to any investigation into his professional conduct by any licensing, regulatory or other body, where the outcome was adverse;

(i) is currently subject to any investigation into his professional conduct by any licensing, regulatory or other body; …  .”

 

Regulation 4(6) required a performer to consent to details being obtained from licensing, regulatory or other bodies. 

 

4. The grounds for refusal, insofar as contained within  Part 1 of the PL Regulations, were addressed by regulation 6, which stated:

 

“(1) The grounds on which a Primary Care Trust may refuse to include a performer in its performers list are, in addition to any prescribed in the relevant Part, that –

 

(a) having considered the declaration required by regulation 4(4) and (if applicable) regulation 4(5) and any other information or documents in its possession relating to him, it considers that he is unsuitable to be included in its performers list;

 … or

(e) there are any grounds for considering that admitting him to its performers list would be prejudicial to the efficiency of the services, which those included in that list perform.”

 

(Although sub‑paragraph (e) did feature in the PCT’s original case it is not the focus of the present proceedings and I need say no more about it.)

 

5. In addition to the discretionary grounds in paragraph (1) of regulation 6, there were mandatory grounds in paragraph (2), which are not material in the present case.  By paragraph (3) a PCT was required to check as far as reasonably practicable the information provided by the performer and in particular that provided under regulation 4(4) i.e. the declaration as to, among other matters, investigations by licensing, regulatory or other authorities.  Paragraph (4) of regulation 6 provided that:

 

“Where the Primary Care Trust is considering a refusal of the performer’s application under paragraph (1) or (2), it shall consider all facts which appear to it to be relevant and shall in particular take into consideration, in relation to paragraph 1(a), (c) or (d) –

 

(a) the nature of any offence, investigation or incident;

(b) the length of time since any offence, incident, conviction or investigation;

(c) whether there are other offences, incidents or investigations to be considered;

(d) any action or penalty imposed by any licensing, regulatory or other body, the police or the courts as a result of any such offence, incident or investigation;

(e) the relevance of any offence, investigation or incident to his         performing the services, which those included in the relevant performers list perform, and any likely risk to his patients or to public finances;

(f) whether any offence was a sexual offence for the purposes of Part 2 of the Sexual Offences Act 2003, or if it had been committed in England and Wales, would have been such an offence;

(g) and (h) [not material].”

 

Paragraph (5) provided that:

 

 “When the Primary Care Trust takes into consideration any of the matters set out in paragraph (4), it shall consider the overall effect of all the matters being considered.”

 

6. There were further provisions which likewise tend to demonstrate the relevance of actions taken by other licensing or regulatory bodies, such as the power conferred by regulation 7(1)(c) to defer a decision on an application where there was a pending investigation by such a body and the requirement imposed by regulation 9 on performers who came to be included in the relevant performers lists to notify the PCT if they became the subject of any investigation by such a body and of the outcome where there was a finding against them.

 

7. Turning to Part 2, which concerned “medical performers”, regulation 22 prohibited, subject to limited exceptions, a medical practitioner from performing any primary medical services, unless he was a general medical practitioner and his name was included in the medical performers list.  By regulation 21, who was a “general medical practitioner” was defined, at any rate from 2010, by reference to the register kept by virtue of section 34C of the Medical Act 1983.  In view of this, it is unsurprising that regulation 23 required particulars of, among other matters, inclusion in the relevant register and of general practice experience.  Regulation 24 provided additional grounds for refusal of an application, including (by paragraphs (1)(c), (d) and (e)) if registration in the register of medical practitioners was subject to orders, or conditions imposed by, the material committees or panels of the GMC.

 

8. Where a person was on the medical performers list, then by regulation 26(1), subject to an immaterial proviso:

 

“[i]n addition to the grounds in regulation 10(1), the Primary Care Trust must remove a medical practitioner from its medical performers list where it becomes aware that he is – 

…

(c) following the coming into force of article 13 of the [Medical Act 1983 (Amendment) Order 2002], the subject of a direction by a Fitness to Practise Panel for erasure or immediate suspension under section 35D(2)(a) or (b), (5)(a) or (b), (10)(a) or (b), or (12)(a) or (b) (functions of a Fitness to Practise Panel), or section 38(1) (power to order immediate suspension etc.) of [the Medical Act]; …”

 

The right of appeal

 

9. By regulation 15 of the PL Regulations:

 

“(1) A performer may appeal (by way of redetermination) to the First‑tier Tribunal against a decision of a primary care trust mentioned in paragraph (2).

 

(2) The Primary Care Trust decisions in question are decisions –

 

(a) to refuse admission to a performers list under regulation 6(1);

 …

 

(3) On appeal the First‑tier Tribunal may make any decision which the Primary Care Trust could have made.

  …”

 

The General Medical Council

 

10. By section 1(1A) of the 1983 Act:

 

“The main objective of the General Council in exercising their functions is to protect, promote and maintain the health and safety of the public.”

 

The Council’s functions with regard to fitness to practise are set out in Part 5 of the Act.  Section 35C provides for the work of the Investigation Committee where an allegation is made that a person’s fitness to practise is impaired. What can amount to “impaired” for this purpose is defined by section 35C(2) and includes misconduct.  If the investigation committee decide that the allegation ought to be considered by a Fitness to Practise Panel (“FTPP”) a direction is given under section 35C(5).  The functions of a FTPP are set out in section 35D, of which it suffices to refer to sub‑sections (2), (4) and (5):

 

 “…

(2) Where the Panel find that the person's fitness to practise is impaired they may, if they think fit—

(a) except in a health case, direct that the person's name shall be erased from the register;

(b) direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or

(c) direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests.

…

(4) Where a Fitness to Practise Panel have given a direction that a person's registration be suspended—

(a) under subsection (2) above;

(b) under subsection (10) or (12) below; or

(c) under rules made by virtue of paragraph 5A(3) of Schedule 4 to this Act,

subsection (5) below applies.

(5) In such a case, a Fitness to Practise Panel may, if they think fit—

(a) direct that the current period of suspension shall be extended for such further period from the time when it would otherwise expire as may be specified in the direction;

(b) except in a health case, direct that the person's name shall be erased from the register; or

(c) direct that the person's registration shall, as from the expiry of the current period of suspension, be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests,

but, subject to subsection (6) below, the Panel shall not extend any period of suspension under this section for more than twelve months at a time.

…”

 

11. Case law such as Yeong v General Medical Council [2009] EWHC 1923 (Admin) suggests that the concerns of the FTPP should not be even primarily with punishment of the practitioner concerned but rather that the key question is maintaining public confidence in the integrity of the profession and that the reputation of the profession should be viewed as more important than the fortunes of any individual member.  An FTPP is required to look forwards and not backwards, in that the finding of misconduct does not necessarily mean that there is an impairment of fitness to practise, and is required to take into account such matters as insight, remedial steps and the risk of recurrence. 

 

A short history of events

 

12. In significantly abridged form:

 

2.12.05 Patient A, complaining of hip pain, attends consultation with appellant

5.12.05 Patient A speaks with PCT by telephone and informs PCT that appellant had touched her breasts inappropriately during consultation of 2.12.05.  PCT encouraged patient A to inform the police

12.12.05 Patient A informs police that appellant had touched her breasts inappropriately during consultation of 2.12.05 when he was supposed to be performing a hip examination

PCT agrees enhanced chaperoning arrangements with appellant April 2006 CPS decide not to proceed with criminal prosecution

10.7.09 FTPP finds that inappropriate and sexually motivated touching of patient A’s breast occurred on 2.12.05.  The FTPP also finds that the appellant performed vaginal examinations on patient A between August 2001 and September 2005 without offering her the opportunity to have a chaperone present.  The appellant’s counsel made submission in mitigation referring to a “fleeting touch” and an “isolated aberration”.  The FTPP finds impairment of appellant’s fitness to practise and suspends him for 12 months.  The appellant does not appeal against any of the findings of the FTPP.

20.7.09 PCT notifies the appellant by letter of his removal from its performers list in the light of the suspension:  this followed necessarily because of the terms of regulation 26(1)(c) of the PL Regulations (see [8] above). 

15.7.10 Following submissions made by the appellant’s solicitor and by the appellant himself the FTPP Review Panel finds no ongoing impairment of fitness to practise.

22.7.10 Appellant writes to his MP saying “I have always stated I never accepted that I did any misconduct” and suggesting that new evidence had appeared that the complainant (patient A) was pursuing a compensation claim.

29.7.10 Appellant applies to be included on the PCT’s Performers List

28. 1.11 PCT, having decided exceptionally to hold a panel hearing, heard from the appellant that he denied touching patient A’s breast on 2.12.05 and denied undertaking intimate examinations of patient A without a chaperone present.  The panel felt that in the absence of any acknowledgment by the appellant that these incidents had occurred or insight in relation to the gravity of his misconduct, they were unable to be reassured that there was no risk of repetition despite the length of time since the original incidents had taken place.  The panel concluded that the appellant continued to present a risk to patient safety and, as such, was unsuitable to be included on the performers list.  The panel recommended refusal of the application.

4.2.11 Decision letter issued. 

 

13. The appellant appealed to the First-tier Tribunal and, whilst it is not necessary to set his grounds out at length, I note that a number of them did raise, one way or another, the question of the interaction between the FTPP and the PCT’s decision. 

 

14. The PCT’s response was in the following terms:

 

“11. The decision, as set out in the Report, was reached following consideration of the findings of the GMC FTPP in July 2009 and Dr Shah’s response to those findings.  The [sc. PCT’s] Panel found that in July 2010 Dr Shah’s legal representative submitted to the GMC FTPP on his behalf that Dr Shah understood the seriousness of his misconduct, that he had gained in insight, his previous actions were out of character and there was no likelihood of such an incident happening again.  The Panel noted that at other times, such as in a letter to his MP David Amess on 22 July 2010 which was forwarded to the PCT and in his representations before the FHSAU, Dr Shah had denied that the misconduct had taken place, and he did not have insight into the gravity of the misconduct found proved by the GMC FTPP in 2009.

 

12. The Panel was extremely concerned that there was no evidence that Dr Shah had any insight into the gravity of the misconduct and had repeatedly denied it had occurred.  Pursuant to regulation 6(4) of the Performers Lists Regulations, the PCT considered, among other things, the nature of the findings of misconduct and the relevance of them to a GP performer’s provision of services.  The Panel came to the view that although the relevant incidents had taken place 6 and 10 years previously, the extreme gravity of the findings in 2009 and the absence of any acknowledgment that these incidents had occurred or insight into their gravity, meant that Panel members could not be reassured that there was no risk of repetition. 

 

13. Further and in any event, the nature of the GMC FTPP decision in 2009, the one year suspension imposed on Dr Shah and the attendant breach of trust, both towards the patient concerned and to the relationship with the PCT, were sufficient in themselves to justify a refusal to include Dr Shah in the PCT’s Performers List.

 

14. The PCT determined that Dr Shah should not be included in the Performers List on grounds of unsuitability.  It is submitted that this was a view that was appropriate and proportionate in the circumstances and the tribunal is asked to uphold it.”

 

The tribunal’s decision

 

15. The hearing before the First‑tier Tribunal lasted for four days.  In the usual way, and as required by the Senior President of Tribunals’ Practice Statement on Composition of Tribunals in relation to matters that fall to be decided by the Health Education and Social Care Chamber on or after 18 January 2010, the composition was one judge and one other member who is a registered medical practitioner, registered dentist, registered optometrist, or a pharmacologist; and one other member who has substantial experience of health matters.  Patient A (and others) gave oral evidence.  The parties were both legally represented, by the same representatives as appeared before me. 

 

16. In its statement of reasons the tribunal set out the allegations (in the form appearing at [2] above).  They set out the history of the matter, referring in paragraphs 3 and 4 to the decisions of the FTPP and the FTPP Review Panel and to the reasoning of the PCT, acting by its primary care regulation group. 

 

17. In paragraph 6 the tribunal noted that:

 

“The hearing before us is a rehearing and we do not, for that reason, rely upon the findings of the General Medical Council as to what has happened:  we have heard evidence and drawn our own independent conclusions on disputed matters.  We note that the burden of establishing that a doctor is unsuitable within the regulations lies upon the Primary Care Trust.” 

 

18. It then turned in paragraphs 7 to 19 to the oral evidence it had received, from patient A, patient A’s son, Ms B (the person at the PCT who had dealt with the complaint), the appellant, the appellant’s receptionist and the appellant’s son.  It went on to evaluate that evidence in ways to which it is not possible to take exception in an appeal limited to points of law.  It found (in paragraph 27) that the appellant “made it plain throughout that he denied the allegations”, notwithstanding his failure to appeal against the decision of the FTPP.  Its statement of reasons concluded in the following way:-

 

“28.Taking all matters into consideration we accept the account of patient A, we find that she was given more than one internal examination without a chaperone present nor was one offered, in particular an internal examination was given on 7 November 2001.  We also find that on 2 December 2005 Dr Shah touched her breasts as she has described and the only reasonable explanation of that is that it was done in a sexual manner. 

 

29. In respect of the allegations made we find 1, 2 and 3 proved in all respects.  We find 4 irrelevant, 5 irrelevant and 6 not to have been established.  We find that the touching of a patient for sexual gratification during examination in these circumstances is one which renders the appellant unsuitable within regulation 6(1).”

 

Analysis

 

19. The tribunal thus relied (and relied only) on the substantive incidents and not on the approach taken by the appellant or his solicitor subsequently.  The last incident on which the tribunal relied occurred in 2005.  It was common ground between Mr Samarasinghe and Mr Booth that the task for the First‑tier Tribunal was to look at matters down to the date of its decision.  It is clear from paragraph 29 of the tribunal’s statement of reasons that although it had found that the internal examinations without the presence of a chaperone had taken place, it was the touching for sexual gratification during the 2005 examination which was the decisive feature. 

 

20. The system of primary care trusts, each one responsible for services in an area, suggests that some degree of autonomy may have been intended to be conferred on each, in order to respond to the perceived needs and expectations of its local area.  However, the PCT’s discretion was not open ended, regulation 6(4) making particular matters relevant where the allegation was one of “unsuitability”.  When applying regulation 6(1)(a) it was required to take, as it were, a holistic approach, by considering the “overall effect” of the matters being considered (regulation 6(5)).  The PCT’s decision clearly did take into consideration the nature of the incidents and the length of time thereafter (and steps taken by the appellant during that time).  It also considered, as by regulation 6(4) it was required to, “any action or penalty imposed by any licensing, regulatory or other body”, but reaching its own view as to the factors which had led the FTPP Review Panel to the conclusion which it reached.  It also addressed “the relevance of any … incident to his performing the services … and any likely risk to his patients” by evaluating the genuineness and robustness of the insight which the appellant claimed to have. 

 

21. It is however not the PCT’s decision which is under appeal but that of the First‑tier Tribunal.  In my view a number of criticisms may be made of the tribunal’s statement of reasons.  It clearly took into account, as it was entitled and indeed required to, the nature of the 2005 incident.  It is perhaps also necessarily implicit that it took into account the relevance of the incident to the appellant’s performing the services as it scarcely needs to be spelt out that an incident such as the tribunal found to have occurred in 2005 has no place in a doctor/patient relationship.  We are however left in the dark what the tribunal made of factors referred to in regulation 6(4) such as the passage of time (and the actions which the appellant did (or did not) undertake), any impact these may have had on risk and indeed what the tribunal made of the action or penalty imposed by the FTPP and in particular of its subsequent lifting by the Review Panel.  It was the “overall effect” of such matters which by regulation 6(5) fell to be considered, but the reader of the tribunal’s decision is only told what it made of some of them.

 

22. It seems to me that not only do the terms of regulation 6(4) draw express attention to the relevance of “any action or penalty imposed by any licensing, regulatory or other body”, but that its relevance is also evident from the very nature of the GMC’s functions, having regard to the provisions set out above which confer upon it responsibility for determining whether a doctor’s fitness to practise is impaired by reason of misconduct.  The role of PCTs was concerned with the provision of primary health services in their area, something which could not be achieved without medical practitioners who were subject to the jurisdiction of the GMC.  The FTPP Review Panel had a very wide-ranging power under section 35D(4) and (5) of the Medical Act 1983 to make registration “conditional on [the appellant’s] compliance … with such requirements … as the panel think fit to impose for the protection of members of the public” yet the Review Panel had not seen fit to impose any.  The wording of the power appears amply wide enough to encompass the imposition of conditions relating to general practice, an environment which raises different issues, such as the extent of peer scrutiny and the access to a patient’s home, from those which may arise in (say) a hospital context.

 

23. In view of what I regard as the clear terms of the PL Regulations and the 1983 Act, I derive little assistance from the various pieces of guidance to which Mr Booth referred me.

 

24. I entirely accept that the PCT and, when conducting a rehearing on appeal, the First‑tier Tribunal were in no way bound by the fact that the Review Panel had decided that the appellant’s fitness to practise was not impaired and that the statutory tests that each was required to apply were different.  Each was required to reach its own decision.  But in the circumstances where the First-tier Tribunal or PCT were proposing to rely on misconduct consisting of the same incident that was before the FTPP and its Review Panel to justify not including the appellant on the Performers List, in my view the relevance expressly attributed by the PL Regulations to regulatory decisions such as those of the FTPP and FTPP Review Panel and the terms of their statutory underpinning by the 1983 Act meant that the duty to give sufficient reasons set out in cases such as English v Emery Reinbold and Strick Ltd [2002] EWCA Civ 605; [2002] 1 WLR 2409 required an explanation to be given. 

 

25. This is what the First‑tier Tribunal failed to do, writing off as “irrelevant” or as “not … established” the very matters on which the PCT had relied in order to justify its different view from that taken by the FTPP Review Panel and to comply with its duty under regulation 6(4).  For that reason, the tribunal’s decision was in my view in error of law.  I do not accept Mr Booth’s submission that to require this would be to require the mere adding of a couple of sentences, in effect by way of lip-service.  The appellant’s fitness to practise had been adjudged not impaired by the professional regulator.  Why then should he be barred from practising in the relevant part of the National Health Service?  There may be an answer, but it is not an idle question and it is one that the tribunal’s decision leaves unanswered.

 

Disposal

 

26. The question then arises what should follow from that.

 

27. Under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 the Upper Tribunal has a discretion whether or not to set aside the decision of the First‑tier Tribunal.  The appeal to the First‑tier Tribunal was expressly by way of rehearing and thus was not confined to merely reviewing whether the PCT’s decision was justifiable.  To that extent, in the context where decisions under the PL Regulations fell to be taken by local bodies, the existence of an appeal to a national tribunal with the specialist membership described in [15] provides an important protection for a “performer” against a harsh or unfair decision by a local PCT in a matter going to his or her livelihood.  For that reason also, it is not possible to assert that the failure of the tribunal to deal with (or to say how it dealt with) the findings of the FTPP was not material, even though the PCT may have had its reasons for the decision it reached. 

 

28. In considering how to exercise my discretion under section 12 I also bear in mind the burden there would be on patient A if she were to have to give evidence once more.  The two fitness to practise panels and the tribunal all found that the matters listed at 1‑3 in [2] above had occurred and nothing in this decision calls into question the tribunal’s findings in that regard.  What remains in my view insufficiently explained is why, having regard to the intervening passage of time and the steps which the appellant had been able to take and in the light of the decision of the FTPP review panel, it was appropriate to uphold the decision of the PCT. 

 

29. I have reason to believe that all three members of the tribunal which heard the case continue to sit and therefore that there is no reason on a practical level (other than the inevitable difficulties of diary co‑ordination) why that panel should not be reconvened.  Its purpose is as I have described in the Decision at the head of these Reasons.  It will be entitled to rely on its findings regarding the incidents which it previously found to have occurred if it sees fit to do so.  However, in order to deal with the points as to which reasons are inadequate it may need to receive further evidence on other matters or, more probably, to consider afresh parts of the voluminous evidence in this case with the aid of further submissions, given its failure to make sufficient findings or to give sufficient reasons in the respects in which I have found its decision to be lacking.

 

30. While there is power under rule 5(3)(n) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to require the First-tier Tribunal to provide reasons for the decision, that would in my view not be appropriate where there appears to have been a gap in the tribunal’s reasoning originally and which therefore could be cured by that route only by way of a subsequent rationalisation. 

 

31. The course of remitting a case to the same specialist tribunal for it to reconsider the matter and reformulate and adequately express its reasons for decision was endorsed by the Court of Appeal in Adami v Ethical Standards Officer [2005] EWCA Civ 1754. 

 

32. In Adami, reference was made to Barke v Seetec Business Technology Centre Limited [2005] EWCA Civ 578, where the court observed at paragraph 47:

 

“The underlying justification for this is that judges and members of employment tribunals are trusted for their professionalism and integrity and, in many cases, it is better to remit to the original court or tribunal.”

 

I have no doubt that the panel in this case, presided over by the Deputy Chamber President of the Health Education and Social Care Chamber of the First‑tier Tribunal, will be able to perform, with professionalism and integrity, the duty imposed upon it by this decision. 

 

33. I am conscious that the appellant is not young:  indeed he is significantly over state pension age.  I was at one point asked on his behalf to substitute a decision if I could, for that reason.  However, though individual judges of the Upper Tribunal hearing this type of case may be not without some professional experience of dealing with the National Health Service, that experience is unlikely to be an effective substitute for the particular insights available to the members of the First‑tier Tribunal whose participation in decision‑making is required by the terms of the Practice Statement cited in [15] above.  The disposal I have adopted appears therefore to offer the best prospects of this long-running matter being brought to a conclusion in a manner which is compatible with proper consideration of the issues.

 

(Signed on the Original)

 

 

 

C G Ward

Judge of the Upper Tribunal

29 October 2013