Kataria v Essex Strategic Health Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stanley Burnton |
| Judgment Date | 01 April 2004 |
| Neutral Citation | [2004] EWHC 641 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 April 2004 |
| Docket Number | Case No: CO/5818/2003 |
[2004] EWHC 641 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Stanley Burnton
Case No: CO/5818/2003
Charles Foster (instructed by Hempsons) for the Appellant
Angus Moon (instructed by Clyde & Co) for the Respondent
Introduction
1. This is a statutory appeal by Dr Kewel Kataria against the decision of the Family Health Services Appeal Authority (“the FHSAA” or “the Tribunal”) dated 30 July 2003 dismissing his application under section 49N(7) of the National Health Service Act 1977 for the review of his national disqualification imposed by the National Health Service Tribunal (“the NHS Tribunal”) on 25 November 1996. I was told that this is the first appeal from the Tribunal to the High Court in respect of a decision on a review under that subsection.
The NHS Tribunal's decision
2. Dr Kataria's national disqualification had resulted from a complaint that he had “repeatedly failed to put himself in a position to reach an informed view as to the personal medical services which are appropriate to his patients”. The NHS Tribunal's conclusions were as follows:
“First, in relation to (three named patients) there has been amply demonstrated a consistent disregard of patients’ complaints and of patients’ care.
Second, in his reaction to criticism the Respondent has, by his attacks on those who made or were associated with complaints against him, gone beyond temporary and understandable loss of control. His conduct, as we find it proved, exactly corroborates the assessment of his former receptionist that his attitude to staff and patients was arrogant and lacking in sympathy for their needs and views.
Third, we were concerned about the unreliability of the Respondent's evidence. This could not be explained merely by lack of memory. As we have indicated earlier in this report, we have been driven to reject a great deal of his evidence on crucial points. Our conclusion is that the Respondent has been prepared intentionally to alter his evidence in what he perceives to be in his best interests in the tribunal before which he appears.
It was represented on his behalf that he has learnt his lesson, regrets his outbursts and has improved his systems: that he now takes part in an effective rota scheme, and that he has improved his record keeping. Nevertheless, his evidence, containing as it did evasions and unacceptable denials to which we have referred, failed to persuade us of a really genuine change of attitude.
We therefore conclude that the continued inclusion of the Respondent's name in the complainant's list of medical practitioners undertaking to provide general medical services would be prejudicial to the efficiency of the services in question …”
The statutory framework: (a) primary legislation
3. The provisions relating to the disqualification of medical practitioners from working within the National Health Service are sections 49F and following of the National Health Service Act 1977 as amended. The provisions in question in this appeal were inserted into the 1977 Act by the Health and Social Care Act 2001, which received the Royal Assent on 11 May 2001 and was brought into force in England by regulation on 22 November 2001. I shall refer to the 1977 Act as so amended as “the Act”.
4. Section 49F authorises (and in prescribed circumstances requires) a Primary Care Trust or Health Authority to remove a person from a list of medical practitioners undertaking to provide general medical services if “the continued inclusion of the person concerned in the list would be prejudicial to the efficiency of the services which those included in the list undertake to provide”. A medical practitioner may appeal to the FHSAA against a decision of a Primary Care Trust or Health Authority under section 49F. Despite its name, the FHSAA is an independent tribunal, the President and members of which are appointed by the Lord Chancellor. Section 49M(3) provides that:
“The appeal shall be by way of re-determination of the decision of the Primary Care Trust or of the Health Authority.”
5. Section 49N provides that if the FHSAA removes a practitioner from a list, it may also decide to disqualify him from inclusion in, among others, all lists referred to in section 49F(1)(a) to (e) prepared by all Primary Care Trusts and all Health Authorities. Such a decision by the FHSAA is referred to as “the imposition of a national disqualification”. A national disqualification precludes a practitioner from working within the National Health Service. Section 49N(7) and (8) are as follows:
“(7) The FHSAA may at the request of the person on whom it has been imposed review a national disqualification, and on a review may confirm it or revoke it.
(8) Subject to subsection (9) the person may not request such a review before the end of the period of –
(a) two years beginning with the date on which the national disqualification was imposed or
(b) one year beginning with the date of the FHSAA's decision on the last such review.”
Subsection (9) empowers the Secretary of State to vary the periods of two years and one year referred to in subsection (8).
(b) Delegated legislation: the Abolition of the NHS Tribunal (Consequential Provisions) Regulations 2001
6. By virtue of regulation 4(1) of the Abolition of the NHS Tribunal (Consequential Provisions) Regulations 2001 (“the Abolition Regulations”), Dr Kataria was to be treated as having had a national disqualification imposed on him by the FHSAA. Regulation 4(2) tracks section 49(N)(8) of the Act:
“Where a person is treated as having had a national disqualification imposed on him by the FHSAA in accordance with paragraph (1) -
(a) where no review decision has been made he may request a review by the FHSAA under section 49N(8)(a) of the 1977 Act not less than two years after-
(i) the date on which a national disqualification decision was made, where that decision has not been appealed, or
(ii) the date on which a national disqualification was upheld by a court,
whichever is the later; or
(b) where he has had a review decision, he may request a review by the FHSAA under section 49N(8)(a) of the 1977 Act not less than one year after the date of that review decision,
and thereafter, subject to paragraph (3), section 49N(8)(b) shall apply in his case.”
7. Regulation 4(3) is as follows:
“Where the FHSAA states that it is of the opinion that there is a need for an immediate review because-
(a) a criminal conviction considered by the Tribunal in reaching its decision has been quashed or the penalty has been reduced on appeal, or
(b) the decision of a professional, licensing or regulatory body has been quashed or the penalty has been reduced on appeal,
the period specified in paragraph (2) which applies before a review may be undertaken shall be reduced to the period that has already elapsed.”
(c) Delegated legislation: the Family Health Services Appeal Authority (Procedure) Rules 2001
8. These Rules (“the FHSAA Rules”) are expressed to apply to specified appeals (see the definitions of “an FHS regulations appeal” and “FHS Regulations” in rule 2(1)) and applications (see rule 2(2)) to the FHSAA. Although applications or requests under section 49N(7) of the Act are not included in the lists of procedures to which the FHSAA Rules apply, it was submitted on behalf of Dr Kataria that this was an accidental omission, and that the Rules should be interpreted as applying to such applications, which would otherwise not be the subject of any statutory rules.
9. Regulation 43 of the FHSAA Rules is as follows:
“(1) Subject to the following paragraphs, if, on the application of a party or of its own motion, a panel is satisfied that-
(a) its decision was wrongly made as a result of an error made by the panel;
(b) a party, who was entitled to be heard at a hearing but failed to appear or be represented, had good and sufficient reason for failing to appear;
(c) new evidence has become available since the conclusion of the hearing to which the decision relates the existence of which could not have been reasonably known or foreseen; or
(d) the interests of justice require,
the panel may review and, by certificate under the Chairman's hand, set aside or vary the decision of the pane; in question.
(2) An application by a party for the purposes of paragraph (1) shall be made to the FHSAA not later than fourteen days after the date on which the decision was sent to the parties in accordance with rule 42 and shall be in writing, stating the grounds in full.
(3) The parties shall have an opportunity to be heard on any application for review under this rule and the review shall, subject to rule 45, be determined by the panel which decided the case.
(4) Where for any reason it is not practicable for the review to be carried out by the same panel, the President shall allocate the matter to another panel.
(5) If, having reviewed the decision, the decision is set aside, the panel shall substitute such decision as it thinks fit or order a rehearing before it.
(6) The certificate of the Chairman as to the setting aside or variation of a panel's decision under this rule shall be sent to the President who shall ensure that such correction as may be necessary is made in the register and that a copy of the entry so corrected is sent to each of the parties.
(7) Where a decision is reviewed the FHSAA shall serve a copy of that revised decision on the parties as soon as practicable thereafter.
(8) Where a copy of the original decision...
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