Mr Justice Stanley Burnton:
Introduction
- 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
- 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
- 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".
- 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."
- 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
- 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."
- 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
- 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.
- 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 has already been sent to any person or body referred to in rule 47, the President shall ensure that the person or body in question is notified immediately of the revised decision."
The decision of the FHSAA
- It was submitted to the Tribunal on behalf of Dr Kataria that it was entitled to review, i.e. to reconsider, the decision of the NHS Tribunal. I shall refer to the scope of the review he sought below. The Tribunal decided that it could not do so: it had to accept the decision of the NHS Tribunal as a given, and to consider whether Dr Kataria had established that his conduct since its decision justified the revocation of his national disqualification. The chairman displayed a strong reluctance to hear the submissions of Mr Foster, who appeared then, as he did before me, on behalf of Dr Kataria. The conduct of the chairman is alleged to have given rise to an appearance of bias, or demonstrated actual bias, namely that she had prejudged or appeared to have prejudged his case, and it is alleged that she gave the appearance that she would not consider his case on the merits impartially and fairly.
- The second preliminary matter determined by the Tribunal was whether to admit at the instance of the Respondent written statements of a number of witnesses who were not available for cross-examination. The Tribunal decided to do so.
- The Tribunal determined that their "remit was to assess whether on the balance of probabilities Doctor Kataria's conduct and actions since the original tribunal's decision justified the revocation of his national disqualification and his re-inclusion in the list would not be prejudicial to the efficiency of NHS services". He had worked in Scotland as a NHS GP locum in July and August 2001 in breach of his national disqualification. He told the Tribunal that he had been advised, following his disqualification by the NHS tribunal, that his national disqualification did not apply in Scotland. The Tribunal did not expressly reject Doctor Kataria's evidence on this point, but it is implicit in paragraph D2 of their decision that they did so, having regard to the improbability of Doctor Kataria's legal advisers incorrectly advising and his inability to produce any written confirmational note of the alleged advice. Paragraph D3 of the decision is as follows:
"Even if we gave Dr Kataria the benefit of the doubt and accepted he was genuinely under the impression his disqualification did not extend to Scotland, this would not have affected our decision as there were other factors as mentioned below to take into account."
- Between August 2001 and October 2002, Doctor Kataria had worked as a locum, principally through an agency called C&B Locums Ltd, at a number of military bases. He had not disclosed his disqualification to the locum agency or to those for whom he worked. None of the employments were within the NHS, and he had not been questioned about his status. The Tribunal concluded that Doctor Kataria should have disclosed the disqualification. They stated, in paragraph D4:
"However, whilst we understood why Dr Kataria might not wish to volunteer this information, we considered good practice dictates that Dr Kataria should have disclosed the disqualification and we agreed with the submissions of Counsel for the Respondent that Dr Kataria had put his own interests first, that a doctor's moral conduct should not need prompting by others and that it was essential that public confidence in the professions be maintained. Dr Kataria must have known that if he revealed his status there was every chance the locum agency and his employers would not have taken him on. This was borne out by the witness statements of Wing Commander Schofield, Paul Booth and Margaret Hanlon. The GMC 'Good Medical Practice' booklet makes it clear that doctors must not write of sign documents which are false and misleading because they omit relevant information and yet we felt Dr Kataria did precisely that when he prepared and submitted his CV to the locum agency and he continued to be economical with the truth and to conceal his status in September or October 2002 when the locum agency advised him he would need to join the supplementary list if he still wished to be considered by the armed forces. We did not accept his Counsel's submission that the heading of the relevant paragraph in the GMC booklet meant this duty did not extend to his CV."
- In paragraph D5, the Tribunal considered the fact that Doctor Kataria had not undertaken any courses for the purposes of Continuing Professional Development. In evidence he had said that he had kept up to date by reading magazines such as the British Medical Journal and had had case discussions with his colleagues once or twice a week while he was working for the Armed Forces. The Tribunal stated:
"In our opinion, merely to read magazines and journals such as the BMJ and to attend case discussions with his colleagues once or twice a week when he worked for the Armed Forces did not constitute adequate CPD. Dr Kataria had not worked within the NHS for almost seven years and his priority should have been to ensure he complied with the GMC requirement for practitioners to keep their professional knowledge and up to date and to provide evidence that he had attempted to address some of the concerns that had been raised in 1996….We appreciated Dr Kataria might have been financially constrained from attending some courses, but we considered that at the very least he should have contacted his local post-graduate centre at an early opportunity to discuss how he could best maintain his CPD in the light of his particular circumstances … Dr Kataria told us he had planned to attend some courses but he had been ill since October 2002; now he had recovered he planned to attend some. However, we noted he had done nothing since 1996 and we were concerned he was simply telling us what he thought we wanted to hear rather than what he actually intended to do."
- In paragraph D6 the Tribunal referred to Dr Kataria's lack of computer skills. They said:
"We also noted that whilst there were no official complaints relating to Dr Kataria's clinical competence there were some complaints about his lack of computer skills and the locum agency had told him to become computer-literate as he had experienced difficulties in the first couple of posts it had placed him in. To address this problem Dr Kataria told us he had learned with a computer at a friend's practice and a receptionist had helped him for a couple of days ay one job. Again, we felt hat this was not good enough; if Dr Kataria was serious about addressing his shortcomings and wanted to show his re-inclusion in the list would not be prejudicial to services, he should have arranged to obtain proper tuition or to attend a course to remedy this problem and ensure he was sufficiently computer-literate."
- The Tribunal commented on Dr Kataria's lack of any positive references or testimonials since 1996. They concluded:
"9. Our prime concern was that we did not consider there had been any robust documented or oral evidence to show Dr Kataria had moved on since 1996 and taken real steps to demonstrate he had learned from his mistakes and addressed his shortcomings with a view to having his national disqualification revoked. We hope that he will take note of our observations and take steps to address our concerns to improve his future chances of having his disqualification revoked should he wish to reapply for a review in the future.
E. Conclusion
For all the above reasons we confirm the Applicant's removal from all lists as ordered by the National Health Service Tribunal of 25 November 1996."
- Finally, under the heading "Appeal" the Tribunal stated:
"Finally, in accordance with Rule 42(5) of the Family Health Services Appeal Authority (Procedure) Rules 2001, we hereby notify the Applicant that he may have rights relating to appeals under section 11 of the Tribunals and Inquiries Act 1992."
Plainly, the Tribunal considered that the FHSAA Rules applied to its procedure: see too the directions issued by the chairman enclosed with her PA's letter of 28 February 2003, expressed to be pursuant to Regulation 32(1) of those Rules. On the other hand, according to the skeleton argument for Dr Kataria before the Tribunal, it had confirmed in correspondence with his solicitors that "the legislation is silent as to the procedure to be followed in such a case".
The grounds of appeal to this Court
- There are numerous grounds of appeal. They are:
i) The Tribunal erred in law in misconceiving its function and refusing to reconsider the correctness of the decision or of the findings of the NHS Tribunal.
ii) The Tribunal was biased or created a reasonable apprehension of bias in expressing a predetermined view as to the scope of its review and in admitting into evidence written witness statements adduced on behalf of the respondent. The Tribunal thereby deprived Dr Kataria of his right to a fair trial under Article 6 of the European Convention on Human Rights and at common law.
iii) The Tribunal had erred in finding that Doctor Kataria had "continued to be economical with the truth" and to conceal his disqualification in circumstances where it had not been part of the Respondent's case or suggested to Doctor Kataria that he had engaged in deliberately deceptive conduct concerning his status.
iv) The Tribunal had erred in law in finding that the conduct of Doctor Kataria in failing to disclose his disqualification contravened the GMC publication "good medical practice", which had been published only subsequently.
v) The Tribunal erred in law in seeking to enforce a general ethical standard in respect of medical practitioners, a matter which is appropriately reserved to the General Medical Council.
vi) The Tribunal had failed to take into account the fact that the adverse clinical findings of the NHS Tribunal had been considered by the Preliminary Proceedings Committee of the General Medical Council, which had decided to take no further action in relation to them.
vii) In finding that Doctor Kataria did not genuinely believe that his disqualification did not extend to Scotland, the Tribunal erred in law in that its finding was perverse.
viii) The Tribunal erred in law in failing to consider the proportionality of a continuing national disqualification order or the consequences for him and his family of the continuation of that order.
ix) The Tribunal failed to provide adequate reasons for finding that the removal of the national disqualification Order would be prejudicial to NHS services.
The scope of the Tribunal's review
- In opening Dr Kataria's appeal, Mr Foster initially stated that the Tribunal's error had been to preclude Dr Kataria from explaining his lack of candour found by the NHS Tribunal and from giving evidence of his difficult personal circumstances at the time. He did not submit that the NHS Tribunal's decision was wrong; he submitted that Dr Kataria should have been permitted to give evidence of the reasons he had given a negative impression to that Tribunal. That exposition understated the submission made to the Tribunal, and indeed the submission made in his skeleton argument. Mr Foster subsequently submitted that the Tribunal could have reconsidered the findings of fact made by the NHS Tribunal, and considered whether it should accept the evidence given to the first Tribunal. He gave as an example of a case calling for such a review one in which a witness who had given evidence of sexual impropriety by a practitioner subsequently admits having lied.
- Mr Foster's original skeleton before the Tribunal stated that Dr Kataria did not seek to question the findings of fact made by the NHS Tribunal. However, in his supplementary skeleton argument before the Tribunal, he submitted that "the review encompasses a reconsideration of the correctness of the original decision". Paragraph 6.1 stated:
"… there were significant procedural and substantive irregularities in the original hearing. The Appeal Authority must exclude from its consideration those factors upon which the original Tribunal wrongly relied, and must take into account legal and factual developments since the original hearing."
- One of the arguments put forward on behalf of Dr Kataria was that the NHS Tribunal had infringed his rights under Article 6 of the European Convention on Human Rights and that "the Tribunal may have adopted procedures which would not be acceptable under present standards". In his oral submissions, he contended that the NHS Tribunal had failed to accord Dr Kataria a fair hearing and made improper findings of dishonesty against him.
- Mr Moon submitted that the Tribunal had correctly determined its function on a review under section 49N(7).
- The word "review", of itself, gives no relevant guidance as to the scope of inquiry by the Tribunal. Where a decision is to be reviewed, the reviewing body will normally examine the lawfulness of the decision in question, as in the expression "judicial review" or whether that decision is safe or well-founded, as in the title of the Criminal Cases Review Commission. CPR Part 52.11 begins "Every appeal will be limited to a review of the decision of the lower court …" Where a second tribunal rehears or otherwise considers the evidence before a first tribunal and makes its own findings of fact, the rehearing is normally termed an appeal rather than a review, as in section 49M(2) of the Act.
- However, as Mr Moon pointed out, section 49N(7) refers not to a review of an earlier tribunal's decision, but to a review of a national disqualification, which may be confirmed or revoked. Confirmation has the effect of continuing the disqualification in force for the future; revocation brings it to an end. The distinction between the review of a decision and the review of a disqualification is significant, and as appears from subsection (8) designedly so. If the object of a review is to reconsider the correctness of the first tribunal's decision, it is difficult to explain why subsection (8) imposes a minimum time before a person may request a review. If a witness recants, why should there not be an immediate review of the first tribunal decision? However, the requirement of a minimum period before a disqualification may be reviewed is wholly explicable if the object of a review under subsection (7) is to consider whether the disqualification should continue or be terminated.
- Practical considerations point to the same conclusion. If Mr Foster's submission were correct, on a review a practitioner could contend that the first tribunal was wrong to have accepted the disputed evidence of an adverse witness. It is difficult to see how the second tribunal could deal with the case other than by rehearing the evidence. That might occur long after the original decision, when the adverse witness was no longer available. Even if the witness were available he would be troubled again and have to give evidence about matters that had been decided, and where his memory would have faded. There is a public interest in finality that Mr Foster's submission does not accommodate.
- In addition, there is no machinery to prevent multiple requests for the reconsideration of the original tribunal decision, other than the minimum period under s Section 49N(8) or (9) before a new request for a review may be made. It is difficult to believe that Parliament could have intended to allow repeated reconsiderations and rehearings of the matters that led to the original disqualification.
- Furthermore, any such procedure is effectively an appeal, rather than a review of the order made by the first tribunal, and moreover to the same tribunal or to a tribunal of equal standing. Appeals to tribunals or courts of equal standing to the tribunal or court responsible for the original decision are rare, if known at all. It would be most unfortunate if a subsequent tribunal of equal standing to the first tribunal were required to hear and to rule on contentions that the first tribunal procedure had been unfair, that its discretions had been exercised unreasonably (e.g. that an adjournment should have been granted), that its proceedings had been irregular, or that any of its findings of fact or its decision was incorrect. It is most unlikely that Parliament intended this.
- It is significant that there was a right to appeal from decisions of the NHS Tribunal to the High Court on points of law, which would include contentions of bias on the part of the tribunal and contentions that the findings of fact or the decision of the tribunal were perverse or wholly unsupported by the evidence before it. As is obvious, there is such a right of appeal from a decision of the FHSAA. In addition, if a witness admitted to lying to these tribunals, its decision, if based on his evidence, could be the subject of judicial review and quashed: see R v Wolverhampton Crown Court, ex parte Crofts [1983] 1 WLR 204. I see therefore no need to give a broad and unlikely interpretation to section 49N(7).
- Apart from authority, therefore, I should unhesitatingly reject Mr Foster's submission. I turn to consider whether authority, or the terms of the Abolition Regulations or the FHSAA Rules, require me to decide otherwise.
- Mr Foster relied upon the decision of the New South Wales Court of Appeal in Rohatgi v Medical Tribunal of New South Wales [1998] 6 NSWCA Jud Rep, in which it held that the power of a Tribunal to review a deregistration or erasure order imposed upon a medical practitioner did entitle it to reconsider the findings of an earlier Medical Tribunal upon the basis of the evidence and material placed before it. A decision of that court commands respect, and is of persuasive authority. Mahoney AP gave the only judgment, with which the other members of the court agreed. He said:
"The submissions for Dr Rohatgi suggested, I think, that if there was a duty upon the Tribunal to review, that duty must involve a reconsideration of the original findings and orders. It followed, on this view, that Dr Rohatgi had the right, and the Tribunal had the correlative duty, to undertake a reconsideration de novo of those findings and orders. I do not think that that is the effect of the legislation. In my opinion, the meaning of review lies between the two extremes to which I have earlier referred. It is for the Tribunal to determine what the material placed before it warrants to be done, i.e., what course of action should be followed. Thus, a mere claim for reconsideration of otherwise apparently reasonable findings and orders could be held by the Tribunal to involve no more than a consideration of the terms of the findings and orders on their face. A claim for reconsideration supported by a credible retraction by a crucial witness in the original proceedings might well require or warrant that the Tribunal do more. There is, no doubt, a minimum below which it may not descend: the nature of a review may require at least a consideration of the position in the manner to which I have referred. But beyond this it is, I think, a matter for the Tribunal to determine acting within proper limits, what is required in order to discharge its obligation to review. In one case it may feel it appropriate to consider the findings of fact de novo; in another case it may not. No error of law would be involved merely by deciding the matter one way or the other."
- On this basis the Tribunal has a discretion as to the scope of its review. I confess that I have difficulty in seeing how this would work satisfactorily in practice. The judgment in Rohatgi would seem to envisage that a second tribunal might refuse to consider an arguable claim that an earlier tribunal had come to an incorrect finding of fact; but that in similar circumstances a second tribunal could exercise its discretion to the opposite effect. A discretion as to the scope of review would be an unusual, if not unique, discretion in English Law. I also find some of the reasoning of the Court of Appeal difficult. In particular, Mahoney AP distinguished between courts, to the decisions of which the principle of finality applies, and the tribunal in question in that case, which he stated was "in concept, an administrative body which makes findings of fact and on the basis of those findings it does administrative acts". A tribunal such as the FHSAA or the NHS Tribunal is not an administrative body: it is a tribunal independent of the executive (and in this sense of the administration) adjudicating on the rights of the citizen. I do not think that the distinction between tribunals and the courts justifies me in reaching a different conclusion from that I would otherwise reach on the basis of the provisions of the Act. I do not think that I should follow Rohatgi.
- Mr Foster submitted that regulation 4(3) of the Abolition Regulations shows that a review includes a reconsideration of the original decision. I agree that it points in that direction. However, it is restricted in application, and applies only where something has occurred after the tribunal's decision. It is not sufficient to cause me to arrive at a generally unreasonable construction.
- Furthermore, it is questionable whether and to what extent those Regulations are relevant to the interpretation of the Act. In general, subordinate legislation is not a guide to the interpretation of primary legislation. The law is helpfully summarised in the speech of Lord Lowry in Hanlon v Law Society [1981] AC 124, at 193:
"A study of the cases and of the leading textbooks …. appears to me to warrant the formulation of the following propositions:
(1) Subordinate legislation may be used in order to construe the parent Act, but only where power is given to amend the Act by regulations or where the meaning of the Act is ambiguous.
(2) Regulations made under the Act provide a parliamentary or administrative contemporanea expositio of the Act but do not decide or control its meaning: to allow this would be to substitute the rule making authority for the judges as interpreter and would disregard the possibility that the regulation relied on was misconceived or ultra vires.
(3) Regulations which are consistent with a certain interpretation of the Act tend to confirm that interpretation.
(4) Where the Act provides a framework built on by contemporaneously prepared regulations, the latter may be a reliable guide to the meaning of the former.
(5) The regulations are a clear guide, and may be decisive, when they are made in pursuance of a power to modify the Act, particularly if they come into operation on the same day as the Act which they modify.
(6) Clear guidance may also be obtained from regulations which are to have effect as if enacted in the parent Act."
- I do not think that the Act is ambiguous. As to its amendment, section 49N(9) confers power to vary the period specified in subsection (8), but not to vary the content of a review. I do not know whether the Regulations were prepared contemporaneously with the Act: the Act received the Royal Assent on 11 May 2001, but must have been drafted at an earlier date. The Regulations were made on 22 November 2001. Those dates suggest that the Regulations were not contemporaneously prepared.
- The comments in the previous paragraph apply equally to the FHSAA Rules. In their case, however, there is the added difficulty that they are not expressed to apply to a request under section 49N. To decide that they do apply and to use them as an aid to construction in order to depart from what I consider to be the natural meaning of that section is to use uncertainty to apply a guide to resolve what is clear. I am far from clear that I should do so. Their application involves reading in words that are not present in the Rules. I am invited to have regard to the explanatory note to the rules, as did Clarke LJ in R (Passenger Transparencies UK) v Humber Bridge Board [2004] 2 WLR 98 at [49]. However, the explanatory note does not indicate that the Rules apply to a request under section 49N for a review. The obvious place to include such a request is in Part III of the Rules, as to which the note states that "it makes provision in respect of three kinds of applications (defined in Rule 2(2))". A request under section 49N is not one of those kinds of application. The material relied upon as showing that it was intended to include a request under section 49N in the Rules is far less powerful and specific than in R (Passenger Transparencies UK) v Humber Bridge Board: it is only that there is no other provision made for the Tribunal's procedure on a section 49N review.
- On the basis that the Rules are applicable, Mr Foster submitted that the provisions of rule 43 of the FHSAA Rules shows that Parliament used the word "review" in the Health and Social Care Act 2001 to denote a reconsideration of the original decision. It is true that the word is used in this sense in that rule. However, the restrictions on a rule 43 review, both the grounds required for such a review and the requirement that an application be made not later than 14 days after service of the original decision, are inconsistent with his interpretation of section 47N(7). If his interpretation is correct, the grounds for reconsideration of a tribunal decision are not so restricted, and there is no maximum time for applying for such a reconsideration. The power conferred by rule 43 is akin to the power of a court to set aside its own decision before its order is perfected. The power under rule 43 is exceptional rather than typical.
- Thus the provisions of rule 43 do not lead me to depart from my provisional view as to the scope of a review under section 49N. In my judgment, it is not the function of the Tribunal on such a review to investigate whether the procedures of the earlier tribunal were flawed or its findings of fact correct or the disqualification justified.
- Quite apart from the question whether a civil right or obligation of Dr Kataria was engaged (which I consider further below) the contention that that Dr Kataria's Article 6 rights were infringed by the NHS Tribunal's decision could not affect the scope of review by the Tribunal. The Human Rights Act 1998 was not in force when it made its decision, and the Act is not retrospective: R v Lyons [2003] 1 AC 976. In any event, there is nothing to justify a finding that the NHS Tribunal failed to give Dr Kataria a fair hearing.
- In its reasons, the Tribunal seems to have been confused as to the appeal procedures available to Dr Kataria to challenge the NHS Tribunal's decision. That is irrelevant if, as I hold, it came to the correct conclusion on this question of law.
- Dr Kataria also contended that the Tribunal erred in imposing the burden of proof on him, and in concluding that there had been a general failure by him to observe proper standards. In that connection Mr Foster referred to paragraph 14 of the judgment of the Judicial Committee of the Privy Council in Hossain v the GMC (appeal no. 77 of 2000).
- The practitioner makes a request for a review under section 49N of a national disqualification, which but for that request would continue to have effect. If he puts no evidence or material before the FHSAA, his request must be rejected, i.e. the tribunal must confirm the disqualification. It follows that he bears the onus of establishing that the disqualification should be revoked. However, the respondent to his request will bear the onus of proving any facts it asserts, such as any alleged misconduct of the practitioner since the date of his disqualification. Once the tribunal has determined the facts relevant to its decision, the question for the tribunal in an efficiency case (see section 49F(2)) is whether the revocation of the disqualification would be prejudicial to the efficiency of the services in question. Once the facts have been found, the answer to that question will rarely depend on the onus one way or the other.
- In Dr Kataria's case, the relevant primary facts were not significantly in issue. The Tribunal made no error of law in formulating, in paragraph D1 of its decision, the question it had to answer. Nor did the Tribunal improperly generalise from specific defaults on the part of Dr Kataria that it found.
- In my judgment, for the reasons set out above, the Tribunal did not err in rejecting Dr Kataria's contentions as to the scope of review.
- It does not follow from this that a FHSAA could not or should not receive evidence as to the circumstances in which a practitioner came to do that which an earlier tribunal found he had done. By way of example, a practitioner might wish to adduce evidence that he had suffered from depression at the time of the defaults that had led to his disqualification, had received treatment, and had recovered. Similarly, I should not be taken to have decided that Dr Kataria could not have given evidence to the Tribunal as to the personal stresses he had been under in the period relevant to the NHS Tribunal's decision and during the hearing before that Tribunal. The submission made to the Tribunal was different, and did not cover such facts. In fact, Dr Kataria in his cross examination did give evidence as to his state of mind at the times relevant to the NHS Tribunal decision and at the time of the hearing.
Bias
- The general law on this issue is well established by the decisions of the Court of Appeal in the Medicaments case [2001] 1 WLR 700, 727 at [85], approved by the House of Lords in Porter v Magill [2002] 2 AC 357.
"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."
- There being no difference between the test for bias at common law and under Article 6, it is unnecessary for me to determine whether Article 6 applies to the Tribunal's proceedings.
- I turn to consider the facts. In a letter faxed to Dr Kataria's solicitors on 9 May 2003, the chairman of the Tribunal stated that there would not be a review or appeal against the decision of the NHS Tribunal. His legal team nonetheless decided to continue with their contention that the Tribunal could reconsider the findings of the earlier tribunal.
- According to Dr Kataria's solicitors' notes of the hearing, which for present purposes I accept as materially accurate, at the beginning of the hearing the Chairman referred to the skeleton argument she had received and the question whether the Tribunal should reconsider the decision of the NHS Tribunal. She said:
"I have spoken to the President and he agrees as I wrote to your solicitors on 9 May that the hearing is not to look at the correctness of the 1996 Tribunal. We are here to consider whether in all the circumstances Dr Kataria should be permitted to return to the Medical List….We are not here to spend hours arguing about this decision."
Mr Foster asked to make his submissions on this issue. The Chairman said:
"There is no point. The President agrees that we are not here to look at the findings of the 1996 Tribunal. The words are a review of the Disqualification Order and not the findings. We are not looking at the findings. There is no point arguing this any further."
- Mr Moon tried to intervene. The Chairman refused to permit him to do so. She said to Dr Kataria:
"Dr Kataria: I do not think your best interests are being served by this line of argument. I think you need to know this is not helping you."
- Mr Foster asked whether the Chairman was prepared to hear his application. Mr Moon then did successfully intervene. He said that he agreed with Mr Foster that the Tribunal needed to hear his submissions before making a decision on this issue. He said:
"Please, if you close you mind to the submission before you hear it, you will be vulnerable to an appeal….But you must allow the parties to address you on this before you make a decision."
- At this, the Chairman said that if the parties were agreed that the application should be heard, she would allow it. She said: "We are willing to hear the argument but we would request counsel to keep to point and to time."
- Mr Foster then made his submission, to which Mr Moon responded. The Chairman rejected Mr Foster's submissions. In doing so, she said:
"Suggest we proceed to discuss application on its merits and would like to reassure Dr Kataria-seen my irritation as this preliminary issue raised-being raised at this later stage and in contravention of my directions-not in any way affect our consideration of the merits of your application. We appreciate how important this is to you and how can affect your earning capacity."
- It is far from certain that the Tribunal should have recused itself before considering the question raised as to the scope of a section 49N review. I accept Mr Moon's comparison of this case with Sengupta v GMC [2002] EWCA Civ 1104, in which it was held that a member of the Court of Appeal who had refused permission to appeal (on the basis that the appeal was unarguable) was not precluded from sitting as a judge on the hearing of the substantive appeal. When a judge hears oral argument on a point, it is to be assumed that he will genuinely consider it and if persuaded his original view was wrong decide accordingly. The full and careful note made by the chairman of the parties' respective submissions on the scope of review do not suggest prejudgment.
- However, even if the Tribunal did give an appearance of bias (i.e. prejudgment) in relation to the preliminary issue as to the scope of review, it does not follow that it did so in relation to other issues that fell for decision. To the contrary, the chairman displayed concern for Dr Kataria when she spoke to him as referred to in paragraph 49 above and in the passage cited in paragraph 52 above. There is nothing to show an appearance or actual bias in relation to those other issues.
- The Tribunal's decision is not liable to be set aside on the ground of bias.
- For the sake of completeness, I mention that Mr Foster sensibly abandoned the suggestion that the chairman's complaint that her directions had not been complied with, and that he had failed to provide the Tribunal in advance of the hearing with copies of the legal authorities on which he relied, did not give rise to an appearance of bias.
The admission of the written witness statement in the absence of the witnesses
- This ground of appeal is addressed in Mr Foster's skeleton argument under the heading of bias. Cases in which the exercise by a tribunal of a discretion to admit evidence give rise to an appearance of bias will be unusual, and I see nothing in the present case to justify this suggestion. The real question is whether the admission of this evidence was something that a reasonable tribunal was entitled to do in the circumstances. I turn to consider the circumstances.
- The Respondent's solicitors had outlined to Dr Kataria's solicitors the content of the witness statements in question in a letter of 17 April 2003. The principal point was that Dr Kataria had not disclosed his national disqualification to his employers, who would not have employed him had they known of it. Dr Kataria's solicitors responded in a letter dated 25 April 2003. Under part 3 of that letter, they stated:
"ii. Our client cannot provide written confirmation that he disclosed his national disqualification Order to the persons nominated as it will be his evidence that he did not volunteer the making of this Order to either RAF Wittering or the Fernbank Medical Centre in Glasgow. The suggestion of obligation to volunteer such information in a non-NHS context in the prevailing circumstances will be the subject of submissions at the hearing.
…
iv. Our client cannot provide written confirmation that he disclosed his national disqualification Order to C&B Locums Ltd as it will be his evidence that he did not volunteer the making of this Order to C&B Locums….
In view of the responses to 3(ii) and (iv), we would presume that the Health Authority's solicitors will not seek to call oral evidence from the five persons indicated if such evidence is restricted to the issues detailed in their letter to you of 17 April 2003…."
- Mr Paul Booth of C&B Locums Ltd gave evidence to the Tribunal in accordance with his witness statement and was cross-examined on it. He stated that if his company had been aware that Dr Kataria was subject to a national disqualification they would not have permitted him to register with them and would not have been prepared to find employment for him. He confirmed that Dr Kataria had not informed them of his national disqualification.
- The witness statements in respect of which the complaint is made were those of Wing Commander Schofield, Flight Sergeant Rae, and Margaret Hanlon. Wing Commander Schofield confirmed that Dr Kataria had not disclosed his national disqualification when working as a locum at Wittering, and said that had he been aware of it, he would not have agreed to Dr Kataria being employed. Flight Sergeant Rae's witness statement was to a similar effect with regard to Dr Kataria's work at RAF Odiham. In addition, he said that while there had been no official complaints about Dr Kataria's standard of care, there had been "unofficial" complaints of grumblings about his communication skills, the adequacy of his notes, and his difficulties in working the computer. Margaret Hanlon worked at the Fernbank Medical Centre in Glasgow. She confirmed that the practice had not been informed of Dr Kataria's national disqualification, and she too stated that had the practice been aware of it, they would not have employed him. She too referred to Dr Kataria's lack of computer literacy. She said that he was not able to use a computer, even for quite routine tasks.
- As appears above, there was no issue of fact before the Tribunal as to whether Dr Kataria had disclosed his national disqualification. He accepted that he had not. The principal question for the Tribunal on this matter was whether he should have done so. That was a matter of ethics to be determined by the Tribunal, and not a matter for factual evidence.
- The complaints of lack of computer literacy contained in the witness statements were not relied upon by Mr Moon before the Tribunal as a ground for confirming Dr Kataria's disqualification. However, this matter was put fairly to Dr Kataria by the Tribunal, and it is clear that there was no real issue of fact relating to it. The questions by the Chairman and Dr Kataria's answers were, as recorded in the Chairman's notes, as follows:
"Q: Concerned there is evidence from more than one witness to effect you did not know how to use computer when you worked for them. Do you now know?
A: C&B Locums told me to be computer literate. In first couple of jobs had difficulty.
Q: What did you do to address this?
A: Learned with one in friend's practice and also at one job for a couple of days with one of receptionists."
- In my judgment, Dr Kataria has not shown any basis for arguing that the Tribunal exercised its discretion unreasonably in admitted the three witness statements in question. If there had been any significant factual dispute relating to the evidence in the witness statements, one would have expected the Tribunal to take into account the fact that the evidence had not been tested by cross-examination. In the result, there was no real factual dispute. Dr Kataria has not established that the admission of the witness statements led to any unfairness.
Dr Kataria's non-disclosure of his disqualification
- Whether honesty or good practice or the probity to be demanded of practitioners required Dr Kataria to disclose to potential employers and those in a like position was for the Tribunal to determine. It was not a matter to be determined by factual witnesses: it was not a question of fact.
- That Dr Kataria's failure to disclose his disqualification was to be the subject of criticism was made clear by the Respondent's solicitors' letter to his solicitors dated 1 May 2003 and by the Respondent's first skeleton argument at paragraphs 11 and 12. The allegation was put to Dr Kataria by Mr Moon and addressed by Dr Kataria in evidence to the Tribunal.
- Between September 2001 and October 2002 Dr Kataria had failed to disclose his disqualification in eleven jobs. In evidence Dr Kataria told the Tribunal that he realized he had been wrong not to disclose his disqualification.
- Contrary to Mr Foster's submission, the Tribunal did not find that Dr Kataria had been dishonest. As is made clear from paragraph D4 of the decision, set out above, it found that he had not met the requirements of good practice and morality; he had preferred his own interests and had been "economical with the truth". Those were findings that the Tribunal was entitled to make.
- Mr Foster complains that the Tribunal took into account the version of the GMC "Good Medical Practice" guide that post-dated the events in question. That point was not made to the Tribunal. In any event, the previous version, which Dr Kataria accepts was current at the relevant time, was not materially different. I have my doubts as to whether the guidance was intended to apply to CVs: it seems to relate to documents (death certificates are the example given) that a practitioner signs in his professional capacity as a doctor. But in my view that is irrelevant. No one should sign any document that will be relied upon that he does not believe to be true or which he believes to be false or misleading, and a doctor should not require a "Good Medical Practice" to appreciate this.
The relevance of good ethical standards
- In my judgment it is obvious that the efficiency of the NHS might be prejudiced by a want of probity of a practitioner, and in particular by any unreliability of his written or oral statements. Fellow practitioners and other NHS staff and patients must be able to rely on the integrity of doctors and the honesty of their statements. The FHSAA is entitled to take into account any want of probity found by it on the part of a practitioner in determining whether his inclusion in a list would be prejudicial to the efficiency of the service. The fact that his want of probity may also be relevant to the GMC does not exclude it from consideration by the FHSAA.
Failure to take into account the decision of the GMC
- It was for the Tribunal to determine whether the revocation of Dr Kataria's disqualification would be prejudicial to the efficiency of the NHS. It could not delegate to another tribunal the consideration of any relevant issue. In any event, the Preliminary Proceedings Committee of the GMC had not considered the matters that were before the FHSAA, but only those that had been before the NHS Tribunal.
- Dr Kataria has not shown any error of law by the Tribunal under this head.
The finding in relation to Dr Kataria's work in Scotland
- The Tribunal stated in paragraph D3 that their findings relating to Dr Kataria's work did not affect the their decision. There is no reason not to accept this statement. It follows that the Tribunal's findings in relation to his work in Scotland are not a ground to interfere with its decision.
- I add that while I have some sympathy with Mr Foster's submission as to the improbability of Dr Kataria volunteering (as he did) that he had worked in Scotland while disqualified, I could not say that the Tribunal's finding was irrational. Moreover, the Tribunal was certainly entitled to reject his evidence that he had been expressly wrongly advised that he could work within the NHS in Scotland, for the reasons it gave. The rejection of that evidence would have been relevant to its assessment of his reliability, if there had not been other matters to be taken into account. It was also relevant to the Tribunal's assessment of Dr Kataria's evidence that he did believe that he was entitled to practise within the NHS in Scotland.
Proportionality and adequacy of reasons
- Apart from authority, I should have considerable doubts as to the applicability of the Convention doctrine of proportionality to the decision of the FHSAA. The principle relates to the decisions and acts of public authorities that interfere with a fundamental right: see, e.g., Lord Clyde in de Freitas v Permanent Secretary of Ministry of Agriculture [1999] 1 AC 69, 80. The FHSAA makes no decision as to any fundamental right of a practitioner: Mr Foster was unable to identify any Convention right engaged. It may be that the right to work within the NHS is a "civil right" for the purposes of Article 6 (as to which see Diennet v France [1996] 21 EHRR 554, which related however to a doctor who was struck off the register, i.e. prohibited from working as a doctor at all). But it does not follow, as Mr Foster assumed, that the doctrine of proportionality is applicable. Most "courts" making decisions as to civil rights and obligations do not apply the principle of proportionality. Cases of breach of contract are but one example.
- In Madan v The GMC [2001] Lloyd's Rep Med 539, the Divisional Court held that a decision of the Interim Orders Committee of the GMC continuing the suspension of registration of a practitioner was subject to the principle of proportionality because it affected a civil right within Article 6. However, in Chaudhury v The GMC (15 July 2002, unreported) the Privy Council expressed doubt as to the correctness of that reasoning. With respect to the court in Madan, I share those doubts. The present case of course differs from Madan in that the decision of the Tribunal does not disqualify Dr Kataria from working as a doctor, but only prevents his doing so within the NHS. The argument for the application of the Convention doctrine of proportionality is therefore attenuated.
- These issues will however generally be academic, since, as the Privy Council pointed out in Chaudhury, there is little or no difference between the common law requirement that a tribunal act fairly and reasonably and the doctrine of proportionality. Nor is there any magic in the use by a tribunal of the word "proportionality" provided (assuming the doctrine applies) its decision meets the requirements of the doctrine and adequate reasons for the decision are given.
- The FHSAA did not expressly weigh the prejudice to Dr Kataria as against the potential prejudice to the efficiency of the NHS. It was however conscious of the financial effect of the disqualification on him, and referred to it in paragraph 2.4 of its decision. The reasons given for the conclusion that the revocation of his disqualification would be prejudicial to the efficiency of NHS services were substantial and cogent. They included their findings as to his probity and, in relation to his lack of CPD, a risk of clinical failings. In my judgment the decision satisfies the doctrine of proportionality and the common law requirement that the decision be reasonable and fair. The Tribunal's reasons were adequate.
- I reject the curious submission made to the Tribunal and in Dr Kataria's skeleton argument to this Court that because he did not intend to work in the NHS it could not lawfully find that the revocation of his disqualification would be prejudicial to the efficiency of the NHS. The submission undermined the case put forward on his behalf on proportionality. The statutory test requires the Tribunal to assume that a practitioner works within the NHS and to determine whether, if he does, its efficiency would be prejudiced.
Conclusion
- For the reasons set out above, Dr Kataria's appeal will be dismissed.
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MR JUSTICE STANLEY BURNTON: My judgment in this case has been circulated in draft. For the reasons I set out in the judgment, this application will be dismissed. Any applications?
MR MOON: My Lord, yes. The respondent of the appeal seeks its costs.
MR FOSTER: My Lord, I cannot intelligently object to that in principle. What I would ask is that you summarily assess those costs. This was a hearing which was listed for a day.
MR JUSTICE STANLEY BURNTON: Is there a schedule?
MR MOON: My Lord, there is not. I am not in a position to deal with costs summarily. I accept that the initial hearing was listed for a day but it did go over a day and a final schedule has not been prepared.
MR JUSTICE STANLEY BURNTON: Was there a schedule prepared for the day?
MR MOON: I understand there was, but I do not know what the final costs figure is. I understand that the appellant has not filed a final schedule. I accept that obviously they are not having their costs paid, but on the other hand, it is helpful on a summary assessment to know what both sides' final costs are. In the circumstances, my Lord, certainly I do not feel capable of dealing with a summary assessment of costs this morning.
MR JUSTICE STANLEY BURNTON: Where is the schedule?
MR MOON: My Lord, I do not have a copy and I am told my instructing solicitor does not have a copy. It may be that my learned friend can assist me.
MR JUSTICE STANLEY BURNTON: Was there a dispute as to the schedule?
MR FOSTER: There is a dispute as to the schedule. This is a statement as to the respondent's costs. There was an appellant's schedule prepared for the hearing below, so all the relevant appellant's costs my learned friend knows or should know about.
MR JUSTICE STANLEY BURNTON: He is in a position to deal with this. If it is possible to summarily assessment them, they should be, should they not?
MR MOON: My Lord, I accept that.
MR JUSTICE STANLEY BURNTON: Should I put this back for you to serve a proper schedule?
MR MOON: I would ask your Lordship to simply direct that costs go to detailed assessment if not agreed between the parties. The reality is I have no reason not to believe that those instructing me will be able to settle issues of costs.
MR JUSTICE STANLEY BURNTON: Will be able or will not be able?
MR MOON: Will be able to settle.
MR JUSTICE STANLEY BURNTON: You think they will be able to?
MR MOON: Yes.
MR JUSTICE STANLEY BURNTON: Then why do I not just put you over to a day next week and if you agree costs in the meantime that is the end of it.
MR MOON: My Lord, so be it.
MR JUSTICE STANLEY BURNTON: If you do not come back, then I will summarily assess them; what is wrong with that?
MR MOON: I am grateful.
MR JUSTICE STANLEY BURNTON: There is a costs implication if you come back, obviously.
MR FOSTER: My Lord, there is. The respondent was told yesterday that we would be asking for a summary assessment and there is no reason why they should come here unequipped with the schedule. So I will make that point when it comes to the final --
MR JUSTICE STANLEY BURNTON: There may be a costs implication if you have to come back, so I will make an order that the appellant pay the respondent's costs -- I should say the appeal is dismissed rather than the application is dismissed -- those costs to be summarily assessed if not agreed, with liberty to both parties to apply for that summary assessment before me on a date and time to be fixed during the next seven days.
MR FOSTER: My Lord, I am grateful.
MR JUSTICE STANLEY BURNTON: Thank you.
