PHL/15312 – Dr Kandiah v Swindon PCT – Appeal against the removal from the Medical Performers list
| Judgement Number | 15312 |
| Court | First-tier Tribunal (Health, Education and Social Care Chamber) |
IN THE FIRST-TIER TRIBUNAL Case No. PHL/15312
PRIMARY HEALTH LISTS
BETWEEN
DR AYAKANNU KANDIAH
(GMC number: 2480529)
Appellant
AND
SWINDON PRIMARY CARE TRUST
Respondent
Panel:
Judge John Burrow
Dr R. Rathi- Professional Member
Ms J. Alderwick- Lay Member
1. Introduction
1.1 The hearing took place in the Jury Inn Hotel, Swindon from 21-23 March 2011. The
Appellant was represented by Andrew Kennedy of counsel instructed by Radcliffes Le
Brasseur. Also present for some or all of the days hearings were Shannett Thompson and
Sam Flew of Radcliffes Le Brasseur. Dr Kandiah was present throughout and was called as a
witness. Tanja Robinson who was practice manager at Sparcells Surgery was called as a
witness. The Respondent, Swindon PCT, was represented by Roderick Clarkson of
Beechcrofts Solicitors who called as witnesses Patient H and Mrs H, Paul Clark, Dr Elizabeth
Mearns and John Reason.
1.2 This was an appeal by Dr Kandiah against the decision of the Swindon Primary Care
Trust (PCT) to remove him from their medical performers list (MPL) pursuant to regulation
10(3) of the NHS (Performers List) 2004 ( the 2004 Regulations) on the 14th September 2010.
The removal was on the basis that the condition set out in regulation 10(4)(a) was met,
namely that his continued inclusion on the MPL would be prejudicial to the efficiency of the
services which are performed by primary care practitioners.
1.3 Dr Kandiah appealed on the 15th October 2010 pursuant to Regulation 15 of the 2004
Regulations, which provides that such appeals are by way of redetermination and that on
appeal the first-tier tribunal may make any decision which the PCT could have made.
2. Legal Matters
2.1 Regulation 4(3)(b) states that the performer shall provide an undertaking to notify the
PCT within 7 days of an material changes to the information provided in the application to
the MPL.
2.2 Regulation 9(6) states that a performer who is included in the MPL shall act in
accordance with the undertakings that the performer is required by these regulation to
provide.
2.3 Regulation 11(5) (6) & (7) provide inter alia that the PCT and the Tribunal should have
regard when considering removal of a performer in an efficiency case to the following
criteria:
the nature of any incident which was prejudicial to the efficiency of the services
which the performer performed,
the length of time since the last incident occurred and since any investigation into it
was concluded,
any action taken by a regulatory body as the result of any such incident,
the nature of the incident and whether there is a likely risk to patients,
the overall effect of any relevant incidents relating to the performer of which it is
aware.
Contingent Removal and Removal
2.4 Regulation 12 provides that in an efficiency case the PCT may remove the performer
contingently. If it so decides, it must impose such conditions as it may decide on his
inclusion in the MPL with a view to removing any prejudice to the efficiency of the services
in question.
2.5 In Dutt V Huddersfield Central PCT [FHS/12359] August 2006 the FHSAA suggested
the following issues might be appropriate to consider before contingent removal should be
preferred to removal:
-whether the appellant acknowledged the extent of his inefficient practice
-whether the performer is able or willing to change
-whether a condition could be created which would have the effect of removing the
prejudice to the efficiency of the services
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