Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  HC/1558/2015

ADMINISTRATIVE APPEALS CHAMBER

 

Before: M R Hemingway: Judge of the Upper Tribunal

 

Decision: The decision of the First‑tier Tribunal sitting at London on 25 March 2015 under reference [2015] 2364.EA‑SUS involved an error or law and is set aside.

 

The appeal is remitted for determination at an oral hearing before a completely differently constituted tribunal. 

 

This decision is made under section 12 of the Tribunals, Courts and Enforcement Act 2007. 

 

DIRECTIONS

 

Subject to any later directions or variation of these directions  by a judge of the First‑tier Tribunal in the Health, Education and Social Care Chamber, the Upper Tribunal directs as follows:

 

(1) The appeal should be considered at an oral hearing unless it is indicated to the First‑tier Tribunal that no such hearing is required. 

 

(2) The new tribunal should be entirely differently constituted to the tribunal which heard the appeal on 25 March 2015. 

 

(3) The new tribunal shall have before it all the material which was before the first tribunal at the hearing of 25 March 2015 and all further documents which have been filed in connection with the appeal to the Upper Tribunal.

 

(4) The new tribunal is not bound in any way by the decision of the previous tribunal.  Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal. 

 

REASONS FOR DECISION

 

Introduction and Background

 

1. This is the appellant’s appeal to the Upper Tribunal against the decision of the First‑tier Tribunal (“the tribunal”) dismissing his appeal against a decision of the Care Quality Commission (the respondent) of 8 January 2015 to issue a notice under section 31 of the Health and Social Care Act 2008 suspending, for a period of four months, his registration as a provider of treatment of disease, disorder or injury at his surgery.

 

2. The appellant, I am told, is now retired but he used to practice as a doctor of medicine.  Indeed, I am told he did so for approximately 40 years. 

 

3. The Care Quality Commission, according to its website, monitors, inspects and regulates health and social care services.  It has some specific statutory powers including its power under section 31 of the Health and Social Care Act 2008.  That provision reads as follows:

 

31. Urgent procedure for suspension, variation etc.

 

(1) If the Commission has reasonable cause to believe that unless it acts under this section any person will or may be exposed to the risk of harm, the Commission may, by giving notice in writing under this section to a person registered as a service provider or manager in respect of a regulated activity, provide for any decision of the Commission that is mentioned in subsection (2) to take effect from the time when the notice is given. 

 

(2) Those decisions are –

 

(a) A decision under section 12(5) or 15 (5) to vary or remove a condition for the time being in force in relation to the registration or to impose an additional condition.

 

(b) A decision under section 18 to suspend the registration or extend a period of suspension.

 

(3) That notice must –

 

(a) state that it is given under this section,

 

(b) state the Commission’s reasons for believing that the circumstances fall within subsection (1),

 

(c) specify the condition as varied, removed or imposed or the period (or extended period) of suspension, and

 

(d) explain the right of appeal conferred by section 32.

 

4. The appellant did not encounter any difficulties with the regulatory authorities until the latter end of 2013.  However, on 16 December 2013 an inspection carried out by the Care Quality Commission at his surgery identified concerns regarding patient safety and required, of him certain compliance action.  He provided them with an action plan but a follow‑up inspection carried out on 10 June 2014 found no relevant improvements had been made and this led to the issuing of a warning notice of 7 July 2014, requiring compliance by 1 August 2014.  On 14 August 2014 there was a further inspection of the appellant’s surgery and whilst it was accepted that there had been improvement in some areas, the warning notice had not been fully complied with and some further concerns were identified.  This resulted in the issuing of three further warning notices.  On 17 November 2014, the NHS England Suspension Panel suspended the appellant from the medical performers list pursuant to Regulation 12(1)(b)(i) of the NHS (Performers Lists) (England) Regulations 2013 in light of concerns arising out of his treatment of patients and his record keeping though, in a written notification of that decision, it was said it was to be regarded as “a neutral act” and was not intended to be a disciplinary sanction.  The suspension was for a period of six months or until earlier revocation and meant he was unable to personally provide medical services to his patients.  He decided to continue to run his surgery using locum doctors but attended himself, he says, on a daily basis, in order to deal with administrative matters.  On 6 January 2015 the Care Quality Commission carried out a further inspection in consequence of which it identified deficiencies in the practice records and, importantly, in the availability of emergency medicine.  It decided to suspend the appellant’s registration as a service provider, on 8 January 2015, for a period of four months.

 

5. It is relevant to note, at this stage, that the Care Quality Commission interviewed the appellant and one of the locum doctors, Dr. Fernando, during the course of its inspection of 6 January 2015.  Whilst it had a number of different concerns, its main one appeared to be its view that on the morning of the inspection Dr. Fernando had administered two injections to two different patients without emergency medicines being available or without his knowing whether such was available or not.  Such would be needed in the event of an allergic reaction to the injections.  In particular, adrenalin was required.  The appellant was later to contend, at the hearing before the tribunal, that there was adrenalin in his medical bag, though he had taken that bag to a locksmith on the morning of the inspection as one of its two locks could not be opened but that there was also adrenalin available and known to be so, in the surgery cupboard. 

 

6. The appellant, unhappy with the decision to serve the “section 31 notice” did appeal to the tribunal.

 

The appeal to the First‑tier Tribunal and its decision

 

7. Various documents were provided to the tribunal in advance of the hearing.  This included, amongst other things, a witness statement of one Emma Dove a CQC Inspector, of 12 February 2015, three separate witness statements provided by the appellant of 17 February 2015, 20 March 2015 and 23 March 2015 respectively, a statement of Dr. Fernando of 17 February 2015 and a statement of Dr. Richards which is undated.  Dr. Richards is employed by the Care Quality Commission. 

 

8. The tribunal held an oral hearing at which both parties were represented by Counsel, the appellant by Dr Fox and the respondent by Mr MacDonald who was subsequently to appear before me. It heard from a number of witnesses including those named above.  Dr. Richards gave oral evidence concerning the importance of adrenalin being accessible when injections were administered and as to a separate matter regarding the appellant having allowed a locum doctor to use his card to log onto “the country‑wide system” which, as I understand it, is a system which stores patient records online.  It said this of his evidence:

 

“ 19. In his witness statement, Dr. Richards described concerns arising out of the 2014 inspections.  He did not attend the inspection of 6 January 2015 but was at the meeting two days later.  He recounted the concern of Dr. Chaudery (who was at the inspection) that immunisation had been given with no adrenalin accessible.

 

20. In cross‑examination Dr. Richards said that misuse of the card was primarily a matter for NHS England, but might also involved the CQC.  He did not accept that any circumstances justified one doctor’s use of another’s card, but if it did happen there should be a clear record of the matter so that the identity of the doctor who in fact treated the patient appeared in the notes.  Dr. Richards was aware that the GMC had imposed a condition that Dr. Khan did not work alone but with at least three other doctors.  He emphasised the importance of having adrenalin available when vaccinations were given because of the risk of anaphylactic reaction.  Oxygen too should be available.  Although anaphylactic reaction was very rare, it could be very serious – even fatal and immediate availability of emergency medication was of high importance (“you need to be able to put your hands on it”).  Had the CQC been satisfied that adrenalin was available, suspension might not have been the outcome.”

 

9. The tribunal noted the evidence of the appellant in his three statements. It was the third which had addressed the question of availability of emergency medicine and he had also been asked about it during cross‑examination.  The tribunal recorded the relevant evidence in this way:

 

“ 26. Dr. Khan’s third witness statement concerned the provision of emergency medicines.  Records showed that the two patients who received the injections on 6 January began their respective consultations with locum doctor, Dr. Fernando, at 10.38 and 11.09 respectively.  (Dr. Khan said elsewhere that he had arrived at 10.15.)  The first had an injection of Prostep 3 (for cancer), the second a “flu jab”.  In the latter case, only, there was a minimal risk of anaphylactic reaction, the patient having previously and uneventfully had a similar injection.”

 

And then as to what was said in cross‑examination:

 

“ 30. The bag containing the emergency medicine, said Dr. Khan, was at the surgery at all times, though it was usually used for consultations at patients homes.  Many doctors had their own bags, but Dr. Fernando did not, he relied on Dr. Khan’s.  Dr. Khan did not know when the lock jammed, but on the morning of 6 January he took it to a locksmith, but it could not be unlocked.  However, said Dr. Khan, it could easily be flipped open with a screwdriver.  There was adrenalin available in a cupboard, the key to which was to be found in a drawer.  He agreed that he had not previously mentioned the availability of the adrenalin in the cupboard.”

 

10. As to Dr. Fernando’s evidence regarding emergency medicine, the tribunal recorded it in this way:

 

“ 43. Cross‑examined, Dr. Fernando said that Dr. Khan did not forewarn him of the inspection on 6 January 2015.  He was acting locum doctor on that day but was not aware that Dr. Khan had taken the emergency medicines bag to the locksmith, nor did he know that the lock was broken, nor that it could be opened with a screwdriver …”

 

11. Having recorded the evidence it heard and the oral submissions it had received, the tribunal went on to set out its findings and explain how it had reached its decision to dismiss the appellant’s appeal.  It said this:

 

“ The Tribunal’s findings

 

47. The only major factual dispute related to the emergency medicines bag.  It was undisputed that there was no mention in any of the preliminary discussion or correspondence at any time of any adrenalin available other than in the bag.  The adrenalin alleged to be available in a cupboard was mentioned for the first time in evidence at the hearing. 

 

48. Although Dr Fox appears to be correct in suggesting that adrenalin itself was not specifically mentioned in the CQC’s enquiries, it was quite clear that those enquiries were directed to a great extent at emergency medication to deal with an anaphylactic reaction to an immunisation.  The Tribunal agreed with Mr Macdonald’s submission that any experienced GP must have known that the medication concerned was adrenalin.

 

49. In those circumstances it is curious to say the least that no mention was made by Dr Khan of the availability of adrenalin in the cupboard, the more so, perhaps, because Dr Richards who inspected the bag on 6^th January, found no adrenalin in it.

 

50. The Tribunal considered it unlikely therefore, that there was adrenalin available in the cupboard.  That may not be as important as it might seem, because even if there were adrenalin in the cupboard, Dr Fernando appeared to be unaware of it.  He said that in an emergency he would have relied on the supply in the bag and, according to Dr Richards’s unchallenged evidence, he would have been disappointed, even if he had been able to open it. 

 

51. Whatever may have been the details of the circumstances, it is beyond doubt that there was not what there should have been, namely easy, well‑known and established access to the appropriate medication in case of emergency.

 

52. That, in the Tribunal’s view was indicative of Dr Khan’s careless, passive and reactive approach to the management of his practice.  Other examples were provided by the lack of any adequate induction procedure for new locum doctors, the absence of any Disclosure and Barring Service check, hepatitis status check or references, the lack of child protection or adult safeguarding policies and of adequate staff fire training.

 

53. As time at the hearing had been limited, and the issues which arose in 2014 had not been extensively explored, the Tribunal gave them little weight.  Dr Fox emphasised that the 2015 breaches were different from those of the previous year, Mr Macdonald struggled to find merit in that.  The Tribunal did not find it necessary to adjudicate upon that disagreement, it focussed on what was observed at the inspection on 6^th January 2015.

 

54. Those observations, as to which, with the exception of the emergency medicines bag, there was little factual dispute, satisfied the Tribunal that there was, in Mr Macdonald’s words, an overall lack of managerial insight.  That had resulted in numerous breaches of relevant regulations.  Dr Fox sought to examine those breaches one by one, suggesting in relation to each that it did not justify suspension.  He suggested, for example, that the use of an extension cable, even though not disclosed in any document as perhaps it should have been, was not a matter of gravity or significance.  The Tribunal was not satisfied that that approach was the correct one.  The question for the Tribunal was whether it had reasonable cause to believe that, at the date of the decision, any person would or might have been exposed to the risk of harm.  The test of the reasonable belief is whether a reasonable person apprised of the law and the relevant information, would believe such a risk to exist.

 

55. No one is likely to be exposed to risk by the use of an extension cable, but the untidy wires under the Practice Manager’s desk as illustrated by the appellant’s photograph leave something to be desired.  They are the least of a number of examples and consequences of poor administration of which the most serious was the absence of any proper arrangements to make emergency medication readily available.  Between the two in gravity are a lack of procedures, checks, safeguards and records all intended to promote the smooth and safe running of a practice. 

 

56. It was pointed out correctly on Dr Khan’s behalf that his practice had run for a very long time without incident, and very few complaints.  While that was undoubtedly true, it could not, in the Tribunal’s view, convince the hypothetical reasonable person that the practice had been running without risk. 

 

57. There were obvious risks arising from the appellant’s casual approach to the management of his practice, which, as a result, was ill‑equipped to deal with an emergency such as a fire or an anaphylactic reaction.  The checks which Dr Khan had admittedly failed to carry out are provided for the purpose of protecting patients from risk.  The conclusion that, in Dr Khan’s practice, persons, patients and staff and doctors, were exposed to the risk of harm was inescapable.  That risk would have continued without action on the part of the CQC.

 

58. Dr  Khan’s failure to appreciate that the regulations had an important purpose and that he had a duty to comply with at least the spirit of the law, if the letter of the law were beyond his grasp as a non‑technical person, persuaded the Tribunal that the imposition of conditions would have been ineffective and that to protect from the risk of harm envisaged by s.31, there was no practical alternative to the suspension of his registration.

 

59. Accordingly, the Tribunal unanimously dismisses Dr Khan’s appeal and confirms the  CQC’s decision of 8^th January 2015 to suspend for four months his registration as a service provider at the Granville Road surgery.”

 

12. Hence, the appeal failed. 

 

The proceedings before the Upper Tribunal

 

13. After an unsuccessful attempt to persuade the First‑tier Tribunal to grant permission to appeal, (such having bee refused by Judge Plimmer) an application was lodged with the Upper Tribunal.  In summary, though the nature of the challenges means it is quite difficult to summarise them with brevity, the grounds were as follows:

 

(a) The powers of the Care Quality Commission under section 31 are draconian, permit it to ‘destroy a person’s business’ and, therefore, represent an interference with the rights of property protected under the first protocol to the European Convention on Human Rights.  So, any person who might be affected by such a decision is entitled to ‘procedural protection’ but, in this case, there had been a failure in that regard because the Care Quality Commission had not carried out a ‘reasonable investigation’, in particular, by failing to note what had been said in its interviews conducted on the date of the relevant inspection with both the appellant and Dr. Fernando.  So, in failing to address all of this, the First‑tier Tribunal had erred.  Further, and in any event, had a full note been taken of Dr. Fernando’s interview this might have made a crucial difference to the outcome. 

 

(b) The tribunal had reached perverse findings of fact. That was because there had been no evidence before it to suggest that Dr. Richards had inspected the medical bag on 6 January 2015 and because the finding Dr. Fernando did not appear to know that there was adrenalin in the cupboard at the surgery had not been open to it since he had given oral evidence that he did know of it and, bearing in mind the consequences to him of a finding that he was prepared to administer injections without emergency medicine, such a finding required cogent evidence which was lacking.

 

(c) The investigative procedures of the Care Quality Commission were, at the time of the hearing, about to be replaced by new procedures which reflected concerns expressed by GP’s.  The respondent must have known this but had not raised it. Further, the appellant had provided details to either the Care Quality Commission or NHS England, in 2014, concerning the emergency medicine he would carry in his medical bag and would keep in his medical cupboard at the surgery, in the form of a list. This evidence, it was said, showed “beyond doubt” that adrenalin would have been present at the surgery in January of 2015. The appellant wished to adduce evidence about these matters in support of the application for permission to appeal and, if granted, the appeal to the Upper Tribunal itself.

 

14. I granted permission to appeal and did not limit the grant. I did, though, express a preliminary view that the grounds I have characterised as (a) and (c) were not arguable. However, I thought ground (b) was and I said this:

 

“ 1. It is arguable that the First‑tier Tribunal (F‑tT) erred in its consideration of the evidence concerning the availability or otherwise of adrenalin by mistakenly thinking Dr. Richards had inspected the ‘medical bag’ and had found none to be present.  It may be that any such error might prove not to be material (see paragraph 6 of Judge Plimmer’s refusal of permission to appeal) but the ground merits further consideration.

 

2. It is arguable that the F‑tT erred in failing to adequately explain its conclusion that Dr. Fernando did not know there was adrenalin available in a cupboard.  In this context it is said, on behalf of the applicant, that Dr. Fernando had given evidence before the F‑tT to the effect that he did know.  If that was so then it may be that the F‑tT was required to say more than it did to justify its finding on the point.  However, no notes of the evidence given by Dr. Fernando have been submitted with this application.  I note that paragraph 50 of the F‑tT’s written reasons might be read as suggesting Dr. Fernando had not given such evidence because if he was aware of adrenalin in the cupboard one might think he would have said he would have used that in an emergency rather than relying on the supply in the medical bag.  Accordingly, in the hope that it may assist when this matter is considered further, I have directed that the F‑tT should produce its note of the oral evidence given by Dr. Fernando.”

 

15. The tribunal did, indeed, produce its note, copies of which were distributed to the parties.

 

16. There followed further written submissions.  In addition to those I received oral submissions, my having directed an oral hearing at the request of the appellant.  Thus, I had the benefit of hearing from Mr O’Dair of Counsel for the appellant and Mr MacDonald of Counsel for the respondent. The comprehensive oral and written arguments made on behalf of the appellant, essentially, followed and built upon those contained in the grounds of application for permission to appeal.  The counter arguments on behalf of the respondent were, in summary, to the effect that much of what was stated in the grounds constituted criticism of the tribunal for failing to deal with arguments which had not been put to it; that Dr. Fernando had not given any evidence to the tribunal to the effect that there was medicine in the cupboard at the surgery; the tribunal could only have concluded on the evidence before it that nobody was aware of the fact that there was adrenalin in the cupboard and the human rights arguments now advanced would have made no difference to the outcome.  I appreciate that that is quite a brief summary of the careful submissions made to me. 

 

My analysis

 

17. I shall look, first of all, at what I have characterised as ground (b).  It is important to point out here that, at the oral hearing, I had sought to clarify with the parties whether they thought that what the tribunal had said at paragraph 50 of its written reasons, as set out above, amounted to a finding that there was not adrenalin available in the cupboard on the date of the relevant inspection.  Given the tribunal’s earlier observation (paragraph 49) that it thought it “curious” that the appellant had not mentioned the availability of adrenalin in the cupboard prior to giving his oral evidence, I had taken a preliminary view that it was making such a finding.  However, both representatives before me disagreed.  They were, in fact, in agreement with each other (but not with me) that the tribunal was not making any clear finding about the presence or absence of adrenalin in the cupboard one way or the other.  Since that is the agreed interpretation of both representatives I have decided to accept their interpretation for the purposes of this appeal.

 

18. The next thing to say is that, as is pointed out in the grounds and not resisted by Mr MacDonald before me, the tribunal made an error in stating, as it did in paragraph 49 of its written reasons, that Dr. Richards had inspected the medical bag on 6 January 2015 and had found no adrenalin in it.  Dr. Richards’ own evidence, as the tribunal recorded at paragraph 19 but then seemingly lost sight of, was that he was not in attendance at the inspection of 6 January 2015.  Thus, it followed, that he could not have looked in the bag.  I did wonder whether, in fact, the tribunal had in mind some other evidence of someone else, perhaps Dr. Chaudery who was at the inspection, who had perhaps looked in the bag and found no adrenalin.  However, I can see no suggestion to that effect and nothing touching upon such a possibility was said at the hearing.  I cannot find a witness statement from Dr. Chaudery in the documentation which was before the First‑tier Tribunal and it is not said by the tribunal that he gave any oral or written evidence to it.  So, it would seem there was no reason to think that anyone had looked in the bag and had failed to find adrenalin. 

 

19. Mr MacDonald argues that, in fact, that error could not possibly have been a material one.  He makes the point that the tribunal and indeed the Care Quality Commission had identified other failings by the appellant.  He says that the tribunal’s key conclusion on the matter was that, whatever the precise detail as to the presence or absence of adrenalin in the cupboard in the surgery it was “beyond doubt that there was not what there should have been, namely easy, well known and established access to the appropriate medication in case of emergency”.  He has in mind, here, paragraphs 51 and 52 of the tribunal’s written reasons.  He suggests that that conclusion is not weakened by the error concerning Dr. Richards.  That is because, he says, it is clear that no-one who had been present at the inspection on 6 January 2015 had been able to indicate to the inspectors that adrenalin was readily available.

 

20. I note what Mr MacDonald has to say but simply observe, at this stage, that the tribunal clearly did make an error in this regard. 

 

21. There is then the evidence of Dr. Fernando.  As noted above, the tribunal had concluded that if there was adrenalin in the cupboard he had “appeared to be unaware of it”.  That was, it seems to me, in context, a potentially important finding.  I do not think the bald contention made on behalf of the appellant to the effect that Dr Fernando had given oral evidence indicating he did know that there was adrenalin in the cupboard has been made out.  What I consider to be the relevant part of the tribunal’s note of his evidence reads as follows:

 

“So with Dr. Khan’s surgery, I relied – their emergency med n.

 

I was not aware on 6/1 that Dr. Khan had taken the bag

away.  First I knew of its gone was when CQC told me. 

I didn’t know lock was broken.  Dr. Khan never told me.

abt opening with screwdriver.  I told inspectors I’d get

adrenalin from bag if needed.  I did not say cupboard

if none in bag. 

I sd adrenalin – bag, then they said it couldn’t be opened

When I went to surgery, Dr. Khan gave me a good

introduction.

I don’t know who re-scheduled the vaccination.

I can’t say why no‑one else told CQC about adrenalin – the

cupboard.  If I didn’t have it, I’d’ve gone to practice

manager or to receptionist.

Inspectors didn’t ask abt any other adrenalin, only about the bag.”

 

22. The above is my reading of the handwritten note produced by the tribunal. I do not regard Dr Fernando’s evidence, as noted, as being conclusive as to whether he knew there was adrenalin in the cupboard or not.  It is, though, certainly possible to interpret what was said as an indication by Dr. Fernando that he did know.  The words “I can’t say why no‑one else told CQC abt adrenalin - the cupboard” do appear to carry, at least, the possible implication that he was seeking to indicate he was aware of the fact that there was some in the cupboard.

 

23. The appellant contends that, principally in light of his oral evidence, the tribunal’s finding that Dr. Fernando did not know about any adrenalin in the cupboard was perverse.  I do not accept that but I do think the tribunal’s view that, if it was there he did not know about it, was, in light of his oral evidence which I acknowledge may be interpreted in different ways,  inadequately explained. I fully appreciate he made no mention of adrenalin being in a cupboard in his witness statement but it was necessary to engage with his oral evidence.  Had the tribunal done that to a greater extent, in my judgment, it would have realised that his oral evidence was capable of being interpreted as amounting to an indication that he was aware of the presence of the adrenalin.  It would, then, have had to, in order to make a sustainable finding, make an assessment that took into account and sought to interpret that oral evidence or seek to clarify matters with him.  Simply observing that he “appeared to be unaware of it” does not seem to me to have been enough.

 

24. So, the tribunal had made a finding without evidence that there had been no adrenalin in the medical bag on 6 January and had made an unexplained or inadequately explained finding that Dr. Fernando had been unaware of the presence of adrenalin in the cupboard.  The next question then is whether those findings fed into the conclusion at paragraph 51 of the written reasons to the effect that there was not easy, well known and established access to appropriate medication in case of emergency.  Certainly, the tribunal had identified other concerns. It said, at paragraph 54, that it thought the appellant had shown “an overall lack of managerial insight”. At paragraph 57 it referred to what it considered to be “the appellant’s casual approach” to his practice management.  It referred, at paragraph 55 to poor administration.  However, it does seem to me that the tribunal was basing its conclusion at paragraph 51, at least in part, upon what it thought had been Dr Richards’s evidence and what it had assumed concerning Dr Fernando’s evidence.  So the conclusion was, in my judgment, an unsafe one.

 

25. I have considered whether the above difficulty could be considered immaterial.  I accept Mr MacDonald’s submission that there were other factors in play which the tribunal took into account in reaching the decision it did. I have mentioned some in the preceding paragraph. Perhaps it could be said that those other factors, in combination, were sufficient to justify the conclusion at paragraph 51. However, its view as to the emergency medication was, it seems to me, an important consideration underpinning its decision to dismiss the appeal.  After all, Dr. Richards had indicated in his evidence to it that suspension “might not have been the outcome” had adrenalin been available at the surgery.  The tribunal itself appeared to indicate, in what it said at paragraph 55, that the most serious concern was the absence of proper arrangements regarding emergency medication.  In these circumstances I have come to the conclusion that the tribunal’s error was a material one in that it might have impacted upon the outcome.  That does mean it’s otherwise very careful decision has to be set aside.

 

26. Strictly speaking, having reached this stage, it is not now necessary for me to say anything about the other grounds of appeal.  However, I shall offer some brief comments.  As to ground (c) this appeared to be, in large measure, an attempt to introduce evidence before the Upper Tribunal which had not been advanced before the First‑tier Tribunal and which the appellant now wishes had been.  Some of that evidence, that relating to the contention that the appellant did have or would have had adrenalin in the surgery cupboard at the material time, has now been produced to the Upper Tribunal in the form of a fourth witness statement from the appellant and some supporting documentation.  The other evidence is that relating to the change in the Care Quality Commission’s procedures, though, evidence of the new arrangements has not actually been provided.

 

27. The principles set out in the judgment in Ladd v Marshall [1954] EWCA Civ 1 apply albeit I accept some flexibility in the context of appeals before Tribunals is appropriate.  One of those principles is that, for it to be admitted, any new evidence could not have been obtained with reasonable diligence for use at the hearing before the First-tier.  Mr O’Dair did not say a great deal about this matter in his oral submissions before me and nothing in a document headed “appellant’s submissions” which was filed for the purposes of the oral hearing.  However, in other written submissions he contended that the principles should operate “in a more lenient way” bearing in mind the adverse consequences for the appellant’s business, that the respondent would have had knowledge of the changes in procedure and that the respondent would have already received at an earlier stage, the documentation regarding storage of adrenalin which the appellant was now seeking to introduce.  However, the fact that the appellant has now been able to produce documentation which he says supports the proposition that he would have had adrenalin available at the material time, suggest that, with reasonable diligence, he could have produced it in sufficient time for it to have been placed before the tribunal.  The documentation he relies upon is not new evidence and there is no dispute about the fact that it was evidence he himself had previously produced pursuant to earlier investigations being conducted by the Care Quality Commission or NHS England in 2014.  Whilst it might be said he may had forgotten about it, it is reasonable to suppose that an appellant with competent representation would have been advised to and would have actually given careful consideration as to what pertinent evidence might be produced.  As to the point about the changes in the Care Quality Commission’s practices, as was pointed out by Judge Plimmer in her refusal of permission to appeal, the, as they were then, proposed changes were well known and within the public domain.  Certainly, it is not suggested that they were secret or hidden in any way.  Again, I make the point that the appellant had competent legal representatives.  It does not seem to me it can properly be said that that material could have been discovered with due diligence.  I would not, therefore, have considered ground (c) to have been made out.  That, though, does not really matter given that I have decided to remit this appeal so there will be an opportunity for the parties to file further evidence if they wish and the appellant will, thereby, be able to have this material considered. Whether it does or does not afford him the assistance he says it does will not now be a matter for me. 

 

28. As to ground (a) the most fundamental point to make here is that these arguments were not advanced before the tribunal.  I appreciate that the appellant was represented by different Counsel then but it is the case that he had the same solicitors and has had competent legal representation throughout.  Mr O’Dair did seek to persuade me that what the tribunal said at paragraph 48 of its written reasons amounted to an indication that points regarding the inadequacy of the enquiry had been made to it but the opening sentence of that paragraph simply seems to suggest, as I read it, that the tribunal had been dealing with a submission on behalf of the appellant that he could not be criticised for failing to mention the specific availability of “adrenalin” at an earlier stage, because the Care Quality Commission had only used the less specific label of “emergency medication” during the investigation without specifying adrenalin is what it had in mind.  That then, was a very narrow point. Certainly, there is nothing there or indeed elsewhere in the written reasons to suggest that the sorts of points now put regarding human rights issues or those asserting a requirement that the investigation has to be of a particular quality such that if it isn’t, the section 31 test is not made out whatever the facts of the case might be, were ever put.  I do not consider it right, therefore, for them to be put before the Upper Tribunal for the first time and be entertained by it.  Put simply, it does not seem to me to be right to fault a tribunal for failing to deal with contentions never made to it in circumstances where they could have been.  Additionally, and in any event, although I do not now have to finally decide these points and do not do so, it does not seem to me that it might be quite difficult to successfully argue that, whatever the importance of the outcome may be to the appellant or, indeed, Dr Fernando, that there is any legal basis to conclude that a failure to reach a particular standard during the course of the investigation by the respondent (and I am not finding there was such a failure) would lead to the section 31 test not being met whatever findings of fact the tribunal were ultimately to make. It seems to me it might be similarly difficult to argue, whatever the position might be concerning a medical practice being protected by the first protocol to the ECHR, that there is some sort of enhanced standard which the respondent must reach over and above that stemming from the bare words of section 31. However, it may be that the appellant will wish to argue such matters on remittal.

 

29. It follows from what I have already said above that the decision of the tribunal must be set aside.

 

Disposal

 

30. Nothing was said at the hearing as to what the appropriate mode of disposal might be in the event of my deciding to allow the appeal to the Upper Tribunal.  It will be apparent from what I have said already that remittal is the course I have chosen.  However, I did not lightly decide to remit.  There is some force in the argument that I should go on to remake the decision myself on the basis of the information before me.  That might be thought to be more efficient and I also bear in mind that it is now some nine months or so since the appeal before the tribunal was heard.  Further, given that the appellant is said to have retired it might be thought the extra cost of and time taken up by a further hearing is not justified.  On the other hand, the errors I have found relate, essentially, to the tribunal’s evaluation of the evidence before it and it may well be if it is able to receive further evidence, including additional oral evidence, it will be in a better position to make the appropriate factual findings.  There remain, it seems to me, further facts to be found regarding matters such as the availability of the adrenalin on the day, the knowledge of its whereabouts and the arrangements for its easy access (not an exclusive list).  Such matters are best dealt with by the First‑tier Tribunal, as an expert fact‑finding body, which will have the opportunity of hearing further oral evidence.  As to the retirement point, it may be, whatever his current intentions, that the appellant will decide to work as a doctor or set up a new practice in the future so that is not a reason, of itself, not to remit. I have, therefore, decided that the proper course, on this occasion, is remittal.

 

Conclusion

 

31. The appeal to the Upper Tribunal is, therefore, allowed.  The decision of the First‑tier Tribunal of 30 March 2015 is set aside.  The case is remitted so that the decision can be remade by a new and entirely differently constituted First‑tier Tribunal. 

 

 

 

(Signed on the original)

 

M R Hemingway

Judge of the Upper Tribunal

 

Dated: 22 December 2015