PHL/15173 – Dr Zala v West Kent PCT - Removal from Medical Performers List
| Judgement Number | 15173 |
| Court | First-tier Tribunal (Health, Education and Social Care Chamber) |
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The First-tier Tribunal
(Health, Education and Social Care Chamber)
Primary Health Lists
Appeal Number: PHL 15173
In the matter of THE NATIONAL HEALTH SERVICE ACTS
And in the matter of THE NATIONAL HEALTH SERVICE (PERFORMERS LIST)
REGULATIONS 2004
Before :
Siobhan Goodrich
Dr Howard Freeman
Mrs Jenny Purkis
Hearing: 2nd, 3rd, 14th ,15th, 17th February, 29th, 30th
March, 11th April, 5th, 6th May , 6th and 10th June
2011
At the Care Standards Tribunal
Pocock Street
Between
Dr NAVIN ZALA
(GMC Registration Number 2266446)
Appellant
and
WEST KENT PRIMARY CARE TRUST
Respondent
DECISION AND REASONS
Representation: Martin Forde QC for the Appellant, instructed by Eastwoods
Richard Booth for the Respondent, instructed by Capsticks.
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The Appeal proceedings
1. Dr Zala appeals against the decision of the Respondent made on 27th May 2009 to
remove his name from its Performers List. The decision, made under the National
Health Service (Performers' List) Regulations 2004 (“the Regulations”) was that the
continued inclusion of Dr Zala’s name in the Performers' List would be prejudicial to
the efficiency of the services that those in the relevant list perform and that he was
also unsuitable to be included therein.
The Interlocutory decisions.
2. The first decision dated 8th March 2010 dealt with the scope and ambit of the appeal.
The second dealt with abuse of process and related matters and resulted in a lengthy
determination dated 23rd June 2011. We have reminded ourselves throughout this
hearing of the general legal principles concerning the fair hearing of stale allegations
and will return to this aspect later.
The overview of the appeal
3. This nature of this appeal is that it is a rehearing in the full sense. It is open to the
Tribunal to make any decision that the PCT panel could have made.
4. The Respondent’s core case that the Appellant is unsuitable to be included in its
performers list by reason of his behaviour towards some 7 female patients. Broadly
speaking, the PCT case is that Dr Zala’s behaviour towards each of these patients
amounted to sexualised behaviour and that he is therefore unsuitable to be included
in its list. Alternatively, it is alleged that Dr Zala is inefficient in his practice. It is
alleged that the same background allegations also indicate poor communication,
poor standards of practice, and inadequate history taking.
5. Dr Zala vigorously denies that he acted in the manner alleged by any of these
witnesses. In so far as he carried out any examinations of the patients concerned he
acted in accordance with acceptable practice at the time. In general terms the
patients are either mistaken or lying or otherwise unreliable. He denies any sexual
motivation. He contends that he has been prejudiced in his ability to deal with all of
the allegations save that of SC. He accepts that his record keeping could be
improved. In so far as this or any other criticisms of his practice are justifiable he
contends that his practice is remediable as evidenced by his efforts to improve.
The Appeal hearing.
6. We had before us the following bundles:
1, 2 and 3
These consisted of the background material to the history of the complaints,
the witness statements, the medical records and Dr Cranfield’s first report
dated 1st April 2009. For ease of reference we will refer only to the page
numbers when necessary.
4. The supplementary expert report of Dr Cranfield dated 31st January 2011.
5. The “green bundle” (“GB”) which included Dr Zala’s witness statement dated
26th March 2010 as well as other documents to which we will refer as
necessary
7. We refer to all patients by their initials in this determination. We mean no discourtesy
by not using a prefix. Where reference is to friends or relatives of patients we have
used their initials only so as to avoid identification of the patients.
8. We heard oral evidence from patients in the following sequence: HK, LF, PH, PP,
KEC, SC, and KS. We also heard evidence from PT, the partner of SC, as well as Dr
Jessell, Dr Hall and Mrs Solley. Where a witness statement had been served but its
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maker was not called we ignored that evidence. We were assisted by the transcripts
of evidence obtained in relation to the evidence of PH, PP, KC, SC and PT. The
Tribunal Judge made a manuscript note of the proceedings and the evidence of all
witnesses.
The Hearing and the adjournment request.
9. The hearing dates in this appeal were fixed over a number of months with the
consent of the parties. In the event the original 15 days estimate proved to be
pessimistic. The PCT closed its case on 30th March 2011 and it was envisaged that
the oral evidence of Dr Zala would be heard and completed on 11th, 12th and 13th
April. In the event Dr Zala did not attend the hearing on 11th April 2011 and some
evidence was provided as to this. It was necessary to adjourn the hearing and give
directions as to the evidence required in the event that a further adjournment was
sought on grounds of psychiatric ill health.
10. No further adjournment was sought but the Tribunal received the report of Dr
Denman, consultant psychiatrist, dated 27th April 2010. We bore fully in mind his
advice that Dr Zala might become tired and we took frequent breaks when hearing
his evidence.
11. On 10th June 2010 we received written and oral submissions from both parties. At the
end of the hearing we reserved our decision and reasons which we now give.
The Standard of Proof.
12. The Respondent bears the burden of proof in relation to the facts alleged. In the
interlocutory decision we rejected the submission made that the criminal standard of
proof should be applied. Given the gravity of the allegations, and the antiquity of the
vast majority of them, it is appropriate to repeat the principles that we consider must
guide us.
13. We considered In re B (Children) [2008] UKHL 35 and In re D [2008] UKHL 33.
14. In In re B (Children) Lord Hoffman, said this:
“Some confusion has been caused by dicta which suggest that the standard of proof
may vary with the gravity of the misconduct alleged or even the seriousness of the
consequences for the person concerned”.
His Lordhip’s conclusion was:
a. “The time has come to say, once and for all, that there is only one civil
standard of proof and that is proof that the fact in issue more probably
occurred than not”.
b. In both the decisions of their lordships had considered the judgement in In re
H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586 D-H
Lord Nicholls said:
“the court will have in mind as a factor, to whatever extent is appropriate in the
particular case that the more serious the allegation the less likely it is that the event
occurred and, hence, the stronger should be the evidence before the court concludes
that the allegation is established on the balance of probability”.
In relation to Lord Nicholls’ comments in In re H, Lord Hoffman said:
“I wish to lay some stress upon the words I have [underlined]. Lord Nicholls was not
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