14279 - DR P HIRSCHOWITZ and NORTH YORKSHIRE & YORK PCT - Appeal against removal from the Performers List
| Judgement Number | 14279 |
| Court | First-tier Tribunal (Health, Education and Social Care Chamber) |
BEFORE THE FAMILY HEALTH SERVICES APPEAL AUTHORITY
IN THE MATTER OF DR PAUL HIRSCHOWITZ
AN APPEAL FROM A DECISION OF THE NORTH YORKSHIRE AND YORK PRIMARY CARE TRUST
BETWEEN:
DR PAUL HIRSCHOWITCH APPELLANT
And
NORTH YORKSHIRE & YORK PCT RESPONDENT
DECISION & REASONS APPEAL
1. This is an Appeal by Dr Paul Hirschowitch (Dr H) against the Decision by North Yorkshire & York
Primary Care Trust (the PCT) communicated by letter dated 15th January 2008 to remove him
from its Performers List (the List) under Regulation 10(4)A and 10(4)B of the National Health
Service (Performers’ List) Regulation 2004 as amended by the Regulations of 2005 and 2006 on
the grounds that his continued inclusion in the List would be prejudicial to the efficiency of the
service and safety of its patients and that he is unsuitable to be included on the List.
2. The Appeal was heard over three days from 19th – 21st May 2008 at the FHSAA Headquarters in
Harrogate. Dr H was represented by Mr Giles Colin of Counsel instructed by Radcliffes
LeBrasseur, Solicitors, and the PCT by Miss Fenella Morris of Counsel, instructed by Hansons
Solicitors.
DECISION
3. Our unanimous decision is to dismiss the Appeal and direct removal of Dr H’s name from the
Performers List of the PCT.
REASONS
The PCT Decision under Appeal
4. Following an Oral Hearing which took place on 27th November 2007 and 7th January 2008 the
PCT gave its formal decision and reasons by letter dated 15th January 2008. Its decision set out
in paragraph 1 above was stated to be in respect of the following allegations:
(i) On 29th March 2005 during a consultation with patient W at Norwood House
Surgery you sat so close to this patient whilst examining her so as to make her feel
uncomfortable such that when she saw your Partner Dr Barron on her next visit to
the Surgery, patient W commented that she did not wish to see you again as you
were “creepy”. This view of patient W did not change as a result of your
examinations of her at the Surgery on 9th February 2007 and 28th February 2007.
(ii) On 22nd January 2005, during a consultation with patient H at Norwood House
Surgery, you examined this patient’s breasts without first offering a chaperone and
without arranging the attendance of a chaperone during the intimate examination.
(iii) On the same occasion you offered this patient an internal examination despite an
internal examination having been performed by your Partner Dr Barron shortly
before on 17th June 2006.
(iv) On the same occasion you said to this patient “you’ve a nice arse and if I saw you
down the street..” or words to that effect and at this time you rubbed yourself.
(v) On the same occasion as patient H left the consultation room you called her back
saying “hey” and drew her attention to your rubbing yourself in your genital area.
(vi) By December 2006 you had established an inappropriate relationship with patient S
such that you had stroked her hand, touched her face and placed loose hair behind
her ear, an unusual feature of consultations with her of a cuddle on her leaving the
consultation room.
(vii) On 14th March 2007 you examined at Norwood House patient S including the
touching of a breast of the patient without first offering a chaperone and without the
knowledge of a chaperone during this intimate examination.
(viii) On 14th March 2007 during a consultation with patient S at the Norwood House
Surgery:
i. you touched her hand and you touched her face;
ii. on this patient standing up to leave you had hold of her hand and pulled
her down so that she sat on your knee;
iii. after this patient was sitting on your knee you said “some things happen to
men when they have a woman sat on their knee” or words to that effect
and drew this patient’s attention to your erection at the time.
(ix) You failed to make a note of the consultation with patient S that took place on 14th
March 2007.
5. The Panel found allegations (i) to (viii) proven to the criminal standard and in respect of
allegation (ix) that a clinical note had been made for the consultation with patient S which took
place on 14th March 2007, however the Panel found the note to be inadequate and misleading in
that it did not detail the incident with patient S which was a serious professional matter.
6. The Panel, having considered the evidence before it as set out above, concluded that Dr H
should be removed from its List on the grounds of efficiency and unsuitability.
The Grounds of Appeal
7. By Notice of Appeal dated 30th January 2008 Dr H set out his grounds of appeal or matters of
complaint.
i) The application of an inappropriate standard of proof indicative of the approach that the
Panel were taking to the Hearing. Namely that the test was to the criminal standard
having careful regard to patient safety and public interest. This demonstrated a clear
bias which could not be determined by the Panel stating at the conclusion of the Hearing
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