R (S) v Knowsley NHS Primary Care Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Toulson:,MR JUSTICE TOULSON |
| Judgment Date | 19 January 2006 |
| Neutral Citation | [2006] EWHC 26 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2550/05 and CO/7637/05 |
| Date | 19 January 2006 |
[2006] EWHC 26 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
MR JUSTICE TOULSON
Case No: CO/2550/05 and CO/7637/05
Mr Neil Garnham QC and Mr Neil Sheldon instructed by RadcliffesLeBrasseur on behalf of the Claimants
Mr Jonathan Holl-Allen instructed by Hill Dickinson and Crutes on behalf of the Defendants
Mr Jason Coppel instructed by The Office of the Solicitor to the Department of Health on behalf of the Interested Party
These cases concern the procedure to be adopted by a Primary Care Trust when considering removal of a general practitioner from its performers list under Regulation 10 of the National Health Service Performers Lists Regulations 2004 (“the Regulations”).
The legislative framework
The Regulations are made under section 28X of the National Health Service Act 1977. This states:
(1) Regulations may provide that a health care professional of a prescribed description may not perform any primary medical service for which a Primary Care Trust or Local Health Board is responsible unless he is included in a list maintained under the Regulations by a Primary Care Trust or Local Health Board.
(4) Regulations under this section may make provision in relation to lists under this section and in particular as to –
(f) suspension or removal from a list (including provision for the grounds for, and consequences of, suspension or removal).
The Regulations contain detailed provisions governing the drawing up and publication of performers lists. Regulation 22 provides that a medical practitioner may not perform any primary medical services unless he is a general medical practitioner and his name is included in a medical performers list.
The contract between a general practitioner and a PCT is a contract for services. Its form is controlled by statute.
Regulation 10 deals with removal from a performers list. The relevant parts for present purposes are as follows:
“(3) The Primary Care Trust may remove a performer from its performers list where any of the conditions set out in paragraph (4) is satisfied.
(4) The conditions mentioned in paragraph 3 are that –
(a) his continued inclusion in its performers list would be prejudicial to the efficiency of the services which those included in the relevant performers list perform (“an efficiency case”);
(c) he is unsuitable to be included in that performers list (“an unsuitability case”).
(8) Where a Primary Care Trust is considering removing a performer from its performers list under paragraphs 3 to 6…, it shall give him –
(a) notice of any allegation against him;
(b) notice of what action it is considering and on what grounds;
(c) the opportunity to make written representations to it within 28 days of the notification under subparagraph (b);
(d) the opportunity to put his case at an oral hearing before it, if he so requests, within the 28 day period mentioned in sub-paragraph (c).
(9) If there are no representations within the period specified in paragraph 8(c), the Primary Care Trust shall decide whether or not to remove the performer and then, within 7 days of making that decision, notify him of –
(a) that decision and the reasons for it (including any facts relied upon); and
(b) any right of appeal under Regulation 15.
(10) If there are representations, the Primary Care Trust must take them into account before reaching its decision, and shall then, within 7 days of making that decision, notify him of –
(a) that decision and the reasons for it (including any facts relied upon); and
(b) any right of appeal under Regulation 15.
(11) If the performer requests an oral hearing, this must take place before the Primary Care Trust reaches its decision, and it shall then, within 7 days of making that decision, notify him of –
(a) that decision and the reasons for it (including any facts relied upon); and
(b) any right of appeal under Regulation 15.
(12) When the Primary Care Trust notifies the performer of any decision, it shall inform him that, if he wishes to exercise any right of appeal, he must do so within the period of 28 days beginning with the date on which it informed him of its decision and it shall tell him how to exercise any such right.
(14) Where the Primary Care Trust decides to remove a performer under paragraph 6, he shall not be removed from its performers list, until –
(a) a period of 28 days starting with the day on which it reaches its decisions; or
(b) any appeal is disposed of by the FHSAA,
whichever is the later.”
FHSAA is an acronym for the Family Health Services Appeal Authority, an authority constituted under section 49S of the 1977 Act.
Regulation 11 sets out various matters which a PCT must take into account when considering whether to remove a performer from its performers list.
Regulation 15 provides a right of appeal to the FHSAA against a decision of a PCT to remove a general practitioner from its performers list. The appeal is “by way of redetermination”.
The procedure before the FHSAA is governed by the Family Health Services Appeal Authority (Procedure) Rules 2001. These rules were made by the Lord Chancellor in the exercise of powers under section 126(4) and schedule 9(A)(2) of the 1977 Act, and after consultation with the Council on Tribunals in accordance with section 8 of the Tribunals and Inquiries Act 1992. The procedure before the FHSAA has all the essentials of a judicial process. The FHSAA is an independent body. It can give such directions as are necessary to enable the parties to prepare for the hearing, or to assist the panel to which the case is allocated to determine the issues. It can give directions requiring any party to provide such particulars or supplementary statements as may be reasonably required for determining the appeal. It can make orders for the disclosure of documents and it can summon witnesses. The appellant and the respondent health authority are entitled to be legally represented. Parties are entitled to give evidence, call witnesses, question witnesses and address the panel both on the evidence and generally. The panel may admit evidence which appears to it to be relevant, although such evidence would be inadmissible in a court of law, but it may not refuse to admit any evidence which is admissible at law and is relevant.
Department of Health Advice to PCTs
By contrast with the detailed procedural provisions that apply to hearings before the FHSAA, there are no other statutory provisions about the procedure to be adopted at the stage when a PCT is considering the removal of a general practitioner from its performers list apart from the extracts from Regulation 10 which I have set out. Regulation 10 is silent about pre-hearing directions, the calling of witnesses or legal representation. No doubt in the consciousness that PCTs would welcome some guidance, the Department of Health (DOH) has published advice to PCTs on medical performers lists, which includes advice about hearings under Regulation The current edition was published in August 2004.
Paragraph 2.2 of the DOH Advice describes the aim of the Regulations:
“Protection of patients should be the overriding consideration when considering whether a performer should be admitted to a list, suspended or removed from a list, whether restrictions should be placed on a performer's position on a list, or whether the performer should be excluded from all lists (disqualification).”
Paragraph 3 explains the background:
“Legal changes
3.1. In the past there had been concerns about the way in which the NHS handled issues involving practitioners’ suitability, efficiency and probity. Evidence from a number of very serious cases (most notably, but not exclusively, that of Harold Shipman) indicated that there were shortcomings in the way that quality issues were addressed in primary care, and in the processes available for dealing with them. In August 2002, the NHS Plan proposed that PCTs should be responsible (and accountable) for the formal processes.
3.2. Following passage of the primary legislation necessary to amend the 1977 NHS Act, Regulations were made as part of a phased programme to bring all general medical practitioners within a statutory PCT list management framework. For GP Principals this was done by means of amendments to the NHS (General Medical Services) Regulations 1992…However the Health and Social Care (Community Health and Standards) Act 2003 further amended the 1977 NHS Act in a way that permitted a single list of practitioners performing primary medical services to be established in each PCT. The NHS (Performers Lists) Regulations laid down that this would happen on 1 April 2004.”
Paragraph 4 emphasises the need for equality and fairness in the application of the Regulations and warns:
“Any decisions taken by PCTs need to be procedurally robust. They will want to ensure that their decisions are likely to be lawful if they come under judicial scrutiny. PCTs that act inappropriately may well find their decisions overturned if a practitioner appeals to the Family Health Services Appeal Authority (FHSAA) and may be vulnerable to other legal challenge.”
Paragraphs 27 and 28 give advice about how PCTs should investigate cases where there are concerns about a doctor's conduct, performance and competence.
Paragraphs 30 to 32...
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