IN THE UPPER TRIBUNAL	Case No.  HPHL/1056/2010
ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Attendances:

For the Appellant:	Mr Jeremy Hyam of counsel, instructed by RatcliffesLeBrasseur

For the Respondent	Mr John de Bono of Counsel, instructed by Weightmans LLP

Decision:  I allow the appeal.  I set aside the decision of the First-tier Tribunal (Health, Education and Social Care Chamber) dated 3 March 2010 and remit the case for reconsideration.

REASONS FOR DECISION

1.	This is an interlocutory appeal against a decision of the First-tier Tribunal (Health, Education and Social Care Chamber), whereby the First-tier Tribunal declined to exclude evidence.

2.	The Appellant is a general practitioner.  In November 2007, Dr Jonathan Lewis was asked by the Respondent primary care trust to investigate the clinical aspects of care provided to her patients by the Appellant and he duly reported on 9 July 2008.  The report and its 50 appendices ran to 201 pages.  The appendices contained the evidence that Dr Lewis had collected.  Some appendices were notes of meetings he had had with various health professionals, a number of whom had voiced concerns about the Appellant, some were extracts of medical notes, some were letters or other documents and the last was a transcript of a meeting with the Appellant during which Dr Lewis effectively interviewed her in the presence of her solicitor.  In the light of his report, the Respondent wrote to the Appellant on 16 March 2009 to inform her that it was proposed to remove her from its medical performers list pursuant to regulation 10(3) of the National Health Service (Performers List) Regulations 2004 (SI 2004/585, as amended) on the ground that her “continued inclusion in its performers list would be prejudicial to the efficiency of the services which those included in the relevant performers list perform” (regulation 10(4)(a)).  (This may really be “an unsuitability case” (see regulation 10(4)(c)), rather than “an efficiency case”, but the parties agreed a year ago not to argue about the label, at least for the time being).  

3.	The Appellant was given an opportunity to put her case to a panel and, when she requested such an opportunity, a panel was convened on 1 June 2009.  Both she and the Respondent were represented by counsel, Mr Hyam and Mr de Bono who have appeared before me.  The Respondent sought the Appellant’s removal from the list on 14 grounds.  An unredacted copy of Dr Lewis’ report was made available to the panel and that included evidence relating to matters other than the 14 identified grounds for removal.  Mr Hyam sought an adjournment with a view to agreeing with the Respondent that parts of the evidence should be excluded from consideration.  That request was refused, whereupon the Appellant and Mr Hyam withdrew and the panel considered the case in their absence.  The Respondent had advanced 14 grounds.  The panel decided to consider only 11 of them, on the ground that the other 3 were not relevant to “an efficiency case”.  It found 10 of the grounds proved.  Three alleged a failure properly to examine patients, three alleged a failure properly to investigate, leading to missed or delayed diagnoses, three alleged the overtreatment of patients and one alleged the editing and falsification of medical records.  The panel decided that the Appellant should be removed from the medical performers list.

4.	The Appellant appealed to the Family Health Services Appellate Authority, the functions of which were transferred to the First-tier Tribunal on 18 January 2010.  A preliminary hearing took place on 4 February 2010 before the judge alone.  The judge was plainly given the impression that the parties had agreed almost all issues of relevance and the exclusion of evidence.  In particular, a redacted version of Dr Lewis’ report had been produced for use in the proceedings and on 13 January 2010, the Respondent’s solicitors had written to the Appellant’s solicitors saying –

The PCT is, as you know, now limiting its case to those 10 cases that were upheld by the PCT Oral Hearing Panel in June last year …”

5.	However, Mr Hyam had reserved his position and, at the beginning of the substantive hearing on 3 March 2010, he raised the question of excluding evidence again.  This was against the background that the redacted version of Dr Lewis’ report still contained evidence that did not relate to the specific cases, that Mr de Bono’s written opening address to the First-tier Tribunal, dated 26 February 2010, contained a number of allusions to that evidence and that the Respondent had produced a “complaints file”, containing details of a number of additional complaints made about the Appellant.  Mr de Bono informed the First-tier Tribunal that the complaints file had been produced because he intended to use the material in it when cross-examining the Appellant.

6.	The Respondent’s case was that removal was the appropriate action in the Appellant’s case because her failings were irremediable.  At paragraph 18(f) of his opening address, Mr de Bono gave as one reason for submitting that the Appellant’s failings were irremediable –

“18.	… (f) If serious shortcomings in her clinical practice are identified in any of the ten cases relied upon below then the evidence produced of the wider context which includes the unusually critical and widespread views of colleagues and patients (evidenced in complaints and in the material contained within Dr Lewis’ report) is relevant to suggest remediation will be more difficult than would be the case with another doctor without this history.”

7.	Mr de Bono then explained the Respondent’s position in more detail –

“35.	The PCT rely on a selection of 10 cases contained within the report of Dr Lewis, and subsequently commented on for [the Appellant] by Dr Silk.

36.	It cannot be emphasised too strongly that these cases are specimens.  They have been selected by Dr Lewis because they are the cases where the evidence that it was [the Appellant] rather than any one else who was providing the care is clearest.  See Dr Lewis at page 11 [page 8 of his report]:

	‘Hard evidence of clinical issues

	From my interviews and examination of the patient complaints and the patient records, there are large numbers of corroborating allegations.  However, some of these allegations could be construed as hearsay, and others would come down to the word of one person against another, with occasionally a witness to the conversation. 

	“Therefore I have limited the following examples and evidence to occasions where there is dated, and often timed medical record, mainly computer medical record logged when [the Appellant] was the named user.  From my examination of the records, it appears that [the Appellant] logs in as “DLG” at all times, even when she has deleted and edited other people’s medical records.  There is no evidence of anybody else logging in as “DLG”.’

37.	The PCT submits that if the criticism it makes by reference to any of the specimen 10 cases is found by the panel to have been substantiated then the panel ought to infer that there were other similar cases.  If for example 5 of the 10 cases are found to be substantiated the panel ought to approach this case on the basis that patient safety was compromised in many more than just 5 cases and to respond accordingly.  

38.	It is accepted that the references within Dr Lewis’ report to previous investigations, to complaints and to the views of colleagues or patients should be treated with caution by the panel.  However these matters provide a relevant background or context within which any specific failings identified in the ten cases below should be considered.  

39.	We suggest that the panel ought to start with the ten cases and consider whether there is any merit in the PCT’s assertion of failings in respect of any of those 10 cases.  If no significant failings are found then that is likely to be an end to the matter regardless of the wider picture presented by Dr Lewis.  If on the other hand the panel do find significant issues with regard to [the Appellant’s] practice then it is entirely right and proper in considering (a) the scale of the problem with [the Appellant’s] practice and (b) the appropriate remedial action, to take into account the wider picture referred to in Dr Lewis’ report.”  
 
8.	Under the heading “Criteria for a decision on removal”, regulation 11(5) to (7) of the 2004 Regulations provides –

  “(5) Where a Primary Care Trust is considering removal of a performer from its performers list under regulation 10(3) and (4)(a) (“an efficiency case”), it shall—
    (a)	consider any information relating to him which it has received in accordance with any provision of regulation 9;
    (b) 	consider any information held by the Secretary of State as to any record about past or current investigations or proceedings involving or related to that performer, which information he shall supply, if the Trust so requests; and
    (c)	in reaching its decision, take into account the matters referred to in paragraph (6).
  (6) The matters referred to in paragraph (5)(c) are—
    (a)	the nature of any incident which was prejudicial to the efficiency of the services, which the performer performed;
    (b)	the length of time since the last incident occurred and since any investigation into it was concluded;
    (c)	any action taken by any licensing, regulatory or other body, the police or the courts as a result of any such incident;
    (d)	the nature of the incident and whether there is a likely risk to patients;
    (e)	whether the performer has ever failed to comply with a request to undertake an assessment by the NCAA on or before 31st March 2005 or thereafter by NPSA;
    (f)	whether he has previously failed to supply information, make a declaration or comply with an undertaking required on inclusion in a list;
    (g)	[subject to paragraph 9,] whether he has been refused admittance to, conditionally included in, removed or contingently removed or is currently suspended from any list or equivalent list, and if so, the facts relating to the matter which led to such action and the reasons given by the Primary Care Trust or the equivalent body for such action; and
    (h)	whether he was at the time, has in the preceding six months been, or was at the time of the originating events a director of a body corporate, which was refused admission to, conditionally included in, removed or contingently removed from, any list or equivalent list, or is currently suspended from any such list, and if so, what the facts were in each such case and the reasons given by the Primary Care Trust or equivalent body in each case for such action.
  (7) In making any decision under regulation 10, the Primary Care Trust shall take into account the overall effect of any relevant incidents and offences relating to the performer of which it is aware, whichever condition it relies on.”

9.	Mr Hyam argued that the effect of the Respondents’ approach was unfair to the Appellant because she did not know the case against her and because the Respondent was seeking to insinuate that which it was unwilling or unable to prove.  He submitted that regulation 11(7) required the First-tier Tribunal to focus only on the ten specified grounds, which were the “relevant incidents”, and that other incidents were merely “background” and were not relevant.  He sought the exclusion of all material that had not been before the Respondent’s panel, including the complaints file, and also all material not relating to the ten specific grounds.  However, apart from the complaints file, he did not identify individual pieces of evidence that he submitted should be excluded.

10.	The First-tier Tribunal rejected Mr Hyam’s submission that section 11 required it to consider only the ten specified grounds, both because it did not consider that a literal construction of the regulation led to that conclusion and also because it considered that the determination of the case before it required more than merely making findings of fact in respect of the ten incidents.  It also rejected his submission that the Appellant did not know the case against her. 

11.	Dealing with these issues had taken up the first day allotted to the substantive appeal, oral reasons for its ruling being given at the end of that day.  On the following morning, Mr Hyam indicated that the Appellant wished to seek permission to appeal and so the substantive appeal was adjourned.  On 29 March 2009, the judge produced a written statement of reasons for the ruling and she refused permission on 30 March 2009.  The statement of reasons is a substantial document stretching to 75 paragraphs.  I need set out only parts of it.

12.	At paragraphs 54 to 57, the First-tier Tribunal considered relevance –

“54.	Whilst Mr Hyam was unwilling to present the argument by reference to the particular parts of the evidence to which he objected, the Tribunal had prepared for the substantive hearing by reading the agreed bundles.  We were thus aware that the redacted Lewis report covers matters that are at least capable of informing our views as to the wider issues that we will have to consider such as insight, relationships with others, attitude to practice etc.  This has been characterised as background or context evidence.  If the Tribunal were to be satisfied that the efficiency ground is established by reason of findings of fact it may make in any of the 10 cases, such evidence is relevant to the assessment of whether any proven deficiencies in [the Appellant’s]  practice can be realistically/adequately/proportionately addressed by the imposition of conditions on her practice.

55.	It is well within the experience of any Tribunal panel in this field that great care must be exercised on relation to background or context evidence.  It can be anecdotal and based on hearsay or impression.  It can fuel [sic] by personal animosity, lack of objectivity/proper perspective and even ignorance of the clinical issues involved. 

56.	In this case we also bore in mind that the Applicant relies on testimonial evidence which goes to the issue of her competence and reputation.  To exclude in block fashion the negative evidence of some who have worked with [the Appellant] in the practice in question, whilst receiving the positive evidence on which the Applicant will rely, would be unbalanced or unfair and may have an adverse impact upon the Tribunal’s ability to make an informed judgment about the prospects that conditions will address any perceived risks and the extent of any conditions that may be necessary.  

57.	We have made it plain that whilst such background or context evidence is relevant to the holistic assessment that may ultimately be required, it could not properly form the basis for concluding that inefficiency was established if none of the 10 cases are proved.”

13.	At paragraphs 60 to 61 it dealt with the complaints bundle.

“60.	We refer to the reasoning previously given.  Our focus will be whether any findings of fact that we may make in any of the 10 cases are sufficient to justify a conclusion that the inefficiency ground is established and, if so, the proportionate outcome having regard to the competing interests involved.  As was indicated by the Tribunal before the application for leave to appeal was made, it is not our intention that the actual bundle is received in evidence or that the complaints be considered as evidence of the truth of their contents.  It is a fact of life that any general practitioner may be the subject of a complaint which may or may not have been justified.  In the context of a case where the Applicant relies on her reputation it is, however, only fair that Mr de Bono is permitted to explore with [the Appellant] the number of any complaints made in the past.  This is fair because it preserves balance but there are obvious limitations to cross examination on this issue.  

61.	It is within the experience of this panel that the crude number of complaints may provide material that may inform the assessment of proportionality of outcome – if inefficiency is established in any of the 10 cases.  Both experts in this case are likely to be able to give a view as to how many complaints a competent general practitioner might ordinarily expect to receive over a given period.  The number of any complaints over a period of time may inform the assessment of the extent to which any of the 10 cases may or may not be a fair indication of the standards of [the Appellant’s] ordinary practice and, thus, the proportionate outcome.”

14.	I should also set out paragraphs 70 to 75 –

“70.	If there is substance to the view that the PCT seeks to insinuate that which it cannot prove, this will be exposed in cross examination of Dr Lewis and others.  Any tendency on the part of the PCT or its witnesses to stray beyond the bounds of the proper focus will not be permitted.  However we emphasise that the legitimate focus is not simply the proof of the disputed facts in the 10 cases, but includes material that may be capable of informing the assessment of risk and the issue of proportionate outcome in the light of any facts found in the 10 cases.  This is not a trial nor is it a hearing where the strict rules of evidence must apply.  What is fundamentally required is that, in exercising discretion concerning the admission/exclusion of evidence, we ensure that the hearing is conducted fairly having regard to the serious potential implications for [the Appellant] and the public interest in an efficient primary care service and risk to patient safety.  If [the Appellant] has any particular evidential difficulties addressing any points made by Dr Lewis or the PCT these can and will be taken into account in the usual way.  This is but an aspect of overall fairness.  In our view, however, to take a blanket and restricted view of admissibility/relevance based on a mistaken reading of the regulations, runs the clear risk that the Tribunal will exclude evidence that is or may be relevant and so make an ill informed decision in a case where risk to patient safety may be engaged.

Summary

71.	Mr Hyam submitted that, leaving aside uncontroversial issues, evidence is either strictly relevant to the 10 cases or it is not and, if irrelevant to the 10 cases, it is unfair.  We consider that this ignores the power to receive evidence that would be inadmissible in a civil trial and, moreover, ignores that there are many more issues involved than proof of the facts in the 10 cases.  

72.	The Tribunal gained the clear impression that what Mr Hyam seeks to achieve is to define “relevance” so tightly to reference to regulation 11 that the Tribunal’s ability to consider material that is at least capable of informing the overall risk assessment that may be required is pre‑emptively constrained.  We have explained why we consider that his interpretation is mistaken.

73.	It may be that the effect of our own broad brush ruling in response to the application actually made is that evidence is received which will turn out to be of little or no weight in overall context.  This is a matter that can be dealt with fairly by careful direction as to weight and significance in overall context.  

74.	If the hard edge or bright line between relevance and irrelevance or fairness and unfairness for which Mr Hyam contends exists, this could have been demonstrated by reference to the specific evidence to which objection was taken.  This did not happen.  Nonetheless, we bore in mind throughout that there is always a continuing balance to be struck in each case when considering the issue of overall fairness.  It is open to us to exclude evidence that is relevant simply because it would be unfair to receive it – and we did so in relation to the audit material.  We expressed our views as to the limitations of cross examination in relation to rebuttal documents and the limited extent to which the complaints material was potentially relevant.  Amongst other matters the Tribunal needs to ensure (so far as practicable) that each side is able to participate fully in the proceedings and that the demands placed upon the parties are fair and proportionate to what is at stake on both sides.

75.	Save in limited respects, (which were the subject of the discrete rulings), we did not consider that it was fair, having regard to the importance of the case for the complexity of the issues (which concern the assessment of risk to patient safety as well as the applicant’s interests on her ability to practice in primary care in the NHS) to exclude evidence on the requested blanket basis.  We also considered that in this PHL appeal it is correct to consider the application actually made, not simply in the context of the potential findings of fact with regard to the 10 cases, but in the context of the wide range of matters that would fall to be considered in any rational risk assessment if the efficiency ground is established.”

15.	I granted the Appellant permission to appeal on 4 May 2010.

16.	In the first ground of appeal, Mr Hyam submits that the ruling of the First-tier Tribunal made the proceedings unfair because, while the Appellant knows the case against her in respect of the ten specific grounds, she does not know the case against her in respect of the other material and cannot effectively rebut the allegations as they are too vague.  He repeats his submission to the First-tier Tribunal that the plain meaning of regulation 11 is that the First-tier Tribunal must focus on the ten identified “incidents” when determining the case.  Mr de Bono replies that the case does substantially rest on those ten incidents but, while it was wrong to describe them as “specimens”, regard must be had to the “broader picture”, which he submits does not consist of further allegations of inefficiency but of “evidence which may assist the panel in determining for example; (a) its factual findings in respect of any of the 10 specific cases; (b) the potential significance of any clinical concerns that it has in respect of any of the 10 specific cases e.g. whether they may be part of a wider picture; (c) the remediability of the appellant; (d) the appropriateness of any conditions which might be considered by the panel to meet any inefficiency found”.

17.	The second ground of appeal is based on a note of the oral reasons given by the First-tier Tribunal for its ruling, which records the judge saying –

“The fundamental matter is that none of the evidence before us was not in front of the PCT.  We stand in their shoes.”

Mr Hyam submits that that is a flawed argument because he had objected to the evidence being before the primary care trust’s panel.  Mr de Bono accepts that the fact that evidence was not excluded from consideration by the panel was not a reason for not excluding it from consideration by the First-tier Tribunal but that that does not take the case any further forward.  I agree.  It is possible that, if the First-tier Tribunal did express itself as has been recorded, it did so because Mr Hyam had asked them to apply rule 41(7) of the Family Health Services Appellate Authority (Procedure) Rules 2001 (SI 2001/3750, preserved transitionally by paragraph 3(3)(a) of Schedule 5 to the Transfer of Tribunal Functions Order 2010 (SI 2010/22)), and, whether or not the evidence should have been excluded from consideration by the panel, it had, in my judgment, been “presented to [the trust] before or at the time it took the disputed decision” so that rule 41(7) did not assist the Appellant. 

18.	The third and fourth grounds of appeal are that the First-tier Tribunal misdirected itself in considering that the issues raised on behalf of the Appellant went to weight rather than admissibility and in relation to the test of relevance.  Mr de Bono submits that it did not err as claimed.  In his reply, Mr Hyam submitted that it was unfair for the First-tier Tribunal to defer ruling on admissibility and relevance until during the evidence was referred to during the hearing because that did not enable the Appellant adequately to respond.

19.	The fifth ground is that the decision not to exclude the material the Appellant sought to have excluded was contrary to Article 6 of the European Convention on Human Rights.   I agree with Mr de Bono that this adds nothing to the other grounds.

20.	During the hearing, I was referred to a number of authorities of doubtful relevance because they were concerned with the decision-making process of primary care trusts and other employers.  The First-tier Tribunal is an independent judicial body, which a panel exercising functions of the primary care trust is not (see R.(S) v Knowsley NHS Primary Care Trust [2006] EWHC 26 (Admin) at [96]).  Both a primary care trust and the First-tier Tribunal must act fairly but it cannot always be assumed that what is permissible in, or required of, a primary care trust is equally appropriate as regards the First-tier Tribunal or vice versa.  

21.	Fairness, as the First-tier Tribunal rightly emphasised, is the key issue in this case but the question of what evidence is relevant is central to determining what is fair.  In my judgment, the first, third and fourth grounds of appeal are really all just different ways of approaching the same point in the context of this case.  It may be helpful to refer first to some general principles.

22.	The rules of evidence applicable in the courts do not generally apply in the First-tier Tribunal.  By virtue of rule 15(2) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699), the First-tier Tribunal may admit any evidence whether or not it would be admissible in a civil trial in England and Wales.  However, it is not obliged to admit any evidence that would not be admissible in such a trial and it may even exclude evidence that would be admissible in such a trial where the evidence has been produced in breach of a direction or practice direction or where it is necessary to exclude it to avoid unfairness.  Thus, the issue for the First-tier Tribunal is not whether evidence is admissible, i.e., whether it can be admitted, but is whether it should be admitted.

23.	Relevance is a key consideration.  Irrelevant evidence should not be admitted.

24.	However, relevance is not the only consideration.  The First-tier Tribunal is also entitled to consider the weight of evidence when deciding whether to admit it.  Generally, it is likely to admit the evidence for consideration and consider its weight only when deciding whether or not to accept it, but it is entitled to exclude weak evidence on the ground that its prejudicial value is far higher than its probative value.  Moreover, the weight of disputed evidence may be relevant when considering related case-management issues.  Good case management may, in the light of the overriding objective to deal “with the case in ways that are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties” (rule 2(2)(a) of the 2008 Rules), suggest that the factual issues to be determined in the proceedings should be limited and, where issues are unlikely to be determinative in themselves, the strength of the evidence to be adduced by the party with the burden of proof or persuasion may be a relevant consideration when the First-tier Tribunal decides whether it wishes to hear any evidence on the point and whether the other party should be put to the trouble of responding to it.  It may also be relevant as to how the evidence is handled.  The First-tier Tribunal may receive evidence in writing, whether in the form of witness statements or of other documents, and it may limit the extent to which the evidence is commented upon orally.  Counsel should not assume that the First-tier Tribunal is unable to form a sensible view of a well-documented issue without the assistance of lengthy oral submissions or cross-examination.  There may not be much that can be added to a lengthy chain of correspondence, containing allegations and counter-allegations, on a peripheral issue.  On the other hand, it may in some circumstances be unfair to admit evidence in writing because evidence received in writing cannot be tested through cross-examination.

25.	What is potentially relevant in proceedings before a tribunal is determined by the question that must be answered by the tribunal.  The statutory question posed by regulation 10(4)(a) of the 2004 Regulations is whether the continued inclusion of the Appellant in the performer’s list would be prejudicial to the efficiency of the services which those included in the list perform.  That, however, carries with it implied qualifications so that the real question is whether the continued inclusion of her in the list would be so prejudicial to the efficiency of those services that either her removal from the list under regulation 10(3) would be justified or her contingent removal (i.e., the imposition of conditions on her continued inclusion in the list, breach of which would render her liable to be removed) under regulations 12 and 15 would be justified.  Consideration of the question whether a contingent removal would be appropriate requires consideration as to whether any conditions might be effective in removing the inefficiency.  If the conditions might involve training, it would be necessary to consider whether the Appellant would be amenable to training and whether the training would be likely to be effective.

26.	I do not consider that regulation 11 throws much light on the issues arising on this appeal.  Paragraph (5) requires the primary care trust first to consider the information mentioned in subparagraphs (a) and (b) and then to take into account the matters mentioned in paragraph (6).  The information mentioned in subparagraphs (a) and (b) ranges from criminal convictions and findings by regulatory bodies to the mere fact that the performer has been charged or the subject of an investigation.  The relevance of the information, and therefore whether it contains anything that it is necessary to take into account, varies.  The fact that a person has in the past been investigated by a regulatory body is unlikely to be of much relevance – or, at any rate, is unlikely to be of assistance to the primary care trust – if he or she was cleared without being the subject of any criticism, but it may be relevant if there was criticism even if no action was taken at the end of the investigation.  All that paragraph (5) requires is that the information mentioned in subparagraphs (a) and (b) be considered by the primary care trust.  The matters mentioned in paragraph (6) must, on the other hand, be taken into account because they are necessarily relevant.  Moreover, paragraph (7) requires that the overall effect of all relevant incidents and offences be taken into account.

27.	However, an incident is only an incident for the purposes of regulation 11 if it is proved to have happened.  It is for the primary care trust in the first instance to decide to what extent it is necessary to investigate allegations and complaints and decide whether incidents have occurred and are therefore matters that must be taken into account.  Moreover, “incident” plainly refers to “any incident which was prejudicial to the efficiency of the services, which the performer performed” and evidence that is relevant to, for instance, the question whether conditions imposed on a contingent removal would be effective may not be related to any such “incident” but might, for instance, be evidence of a conversation with a performer that is revealing as to his or her attitude to, or understanding of, clinical practice.  Once again, though, the evidence is only useful if it is capable of proving that the conversation took place as alleged.

28.	The problem in the present case is that there appears to be a substantial amount of evidence on which the primary care trust seeks to rely for reasons that are neither obvious nor explained given its protestations that it is confining its case to ten specific incidents.  Moreover, some of the evidence appears at first sight to have very little probative value.

29.	It is accepted by Mr de Bono that the use of the word “specimen” in the opening address to the First-tier Tribunal was inappropriate but there is a more fundamental defect in the way that the primary care trust’s case was put.  It is wholly inconsistent for the primary care trust to say that it is confining its case to ten specific incidents and for it then to adduce evidence of complaints or other allegations relating to other incidents in order to show that those ten specific incidents are not isolated.  That is not confining its case to ten specific instances, even if it accepts that only the ten specific incidents are sufficiently serious to justify removal.  (What would not be inconsistent would be for the primary care trust to invite the First-tier Tribunal to infer from the nature of the ten specific incidents and the Appellant’s attitude towards them that there is a continuing risk to patients.  That might imply that there may have been further incidents but it would not seek to prove that that had actually been so and it would be obviously relevant to the risk assessment to be performed.)

30.	The Respondent simply has not thought through the true relevance of the evidence that it seeks to adduce.  Evidence of a complaint or other allegation is generally relevant only insofar as it goes to prove the truth of the complaint or allegation, rather than the mere fact that a complaint or allegation has been made.  The Appellant can therefore only answer it by giving or adducing evidence as to the truth of the complaint or allegation, which in turn means that the complaint or allegation must be sufficiently particularised for her to be able to do so.

31.	Dr Lewis understood this.  At page 8 of his report, quoted in Mr de Bono’s opening address (see paragraph 7 above), he made it clear that he was going to confine his report to the 13 specific examples where there was what he described as “hard evidence”.  Apart from some general matters about the Appellant’s professional background and the running of her practice, these were the only matters about which he interviewed the Appellant.  To these specific examples the primary care trust appears to have added another matter as a potential ground for removal when preparing its case for its panel – I think it may have related to her willingness to do home visits – but the ten grounds the panel found proved were all from among Dr Lewis’ 13 specific examples.

32.	However, Dr Lewis quite properly appended to his report notes of all his meetings with health professionals, some of which were totally unrelated to his 13 specific examples.  It was also quite proper for the primary care trust to disclose all that material to the Appellant, but that material was clearly not all relevant to the 13 specific examples.  It was all placed before the panel.  Whether it affected its decision is not recorded.  Of more importance is the fact that some of that material still appears in the redacted version of Dr Lewis’ report that is before the First-tier Tribunal.  As far as I can tell, the redactions are related to the three incidents considered in detail by Dr Lewis but not found relevant or proved by the panel.  Consideration never seems to have been given to whether all the material that Dr Lewis appended to his report was actually relevant to the proceedings before the panel and, more importantly, before the First-tier Tribunal.

33.	Where that material amounts to a complaint or allegation about an incident that was prejudicial to the efficiency of the services to be performed, the primary care trust needed to decide whether it sought to prove that that incident occurred,  If so, it needed to consider whether the evidence was sufficiently strong to be relied upon.  If it was, the primary care trust needed to add the incident to the ten specified grounds.

34.	It is no different if the complaint or allegation is about an incident or event that was not itself prejudicial to the efficiency of the services to be performed but was nonetheless considered relevant to the question whether removal was appropriate, save that such an incident would not be added to the ten specific grounds.  There is no different standard of proof and, even if an incident or event is potentially relevant to the question of the action to be taken rather than to “efficiency”, it is difficult to see how the complaint or allegation can be regarded as relevant if it is not for the purpose of proving that the incident or event occurred.

35.	However, much of the evidence in its present form appears to be too vague for that purpose.  Thus, for instance Appendix 7 includes Dr Lewis’ note of a meeting with an anonymised doctor.  The complete note, apparently signed by the anonymous doctor as accurate, says –

“I, Dr Jonathan Lewis, explained the purpose of the meeting which was to investigate concerns that had been expressed regarding the clinical care given by [the Appellant] to her patients.

Dr … reported that [the Appellant] was known to do coil checks by telephone.  She told a patient in their 70s that they should buy a statin over the counter as opposed to prescribing it

Dr … reported that [the Appellant’s] Practice had a skeleton staff with a very high turnover.  Often there were patients standing at the front desk demanding appointments and were given alternatives such as Walk-in Centre or A&E.

She has seen an example of a patient running after [the Appellant] in the corridor, calling her, asking her questions but [the appellant] had pretended not to hear the patient.

Many patients were transferring lists and many of these complained of not being examined at all.

Her main concerns about [the Appellant’s] Practice was the list size and the refusal of doing home visits.”

36.	That contains, I think, seven allegations, none being among the ten specific grounds for opposing the appeal.  Does the primary care trust say that any of those are additional incidents that were prejudicial to the efficiency of the services to be performed or were otherwise relevant to the question of removal?  If so, does it rely on this evidence to prove them?  If not, what is the point of the document being before the First-tier Tribunal?

37.	The note certainly raises questions about the Appellant’s performance of services, but the primary care trust has not investigated them.  It is not appropriate for a primary care trust to be seeking to make its case in cross-examination before the First-tier Tribunal.  It should investigate matters before it makes its decision.  Take the second paragraph of the anonymous doctor’s statement.  Is it now proposed to ask the Appellant whether she has ever checked coils over the telephone or told a 70-year old patient to but statins over the counter rather than prescribe them?  If her answer in cross-examination were to be “yes”, those would become proven incidents as to which the Appellant might or might not have an explanation.  If the answer were “no”, it is very difficult to see how the First-tier Tribunal could do anything other than accept what she said if the anonymous doctor is not to be called to give evidence as to the circumstances in which she was given the information so that some proper assessment can be given as to the weight to be given to the hearsay evidence.  The time spent by the First-tier Tribunal reading the evidence and listening to cross-examination may turn out to be entirely wasted.

38.	In this case, if the Respondent considered that issues other than Dr Lewis’ 13 specific examples required investigation, it should have taken steps at least to have the Appellant interviewed about them before it made its decision.  It did not have to accept Dr Lewis’ initial decision to limit the scope of his detailed investigations.  It appears from the panel’s decision that it had intended to ask the Appellant about home visits but it seems to me that that was a matter about which she should have been interviewed earlier.  Of course, a primary care trust may raise matters before its panel that it has not earlier considered and it may also raise new matters before the First-tier Tribunal, subject to the rules of natural justice.  However, it ought clearly to raise them before the hearing so that the appellant can deal with them in a witness statement or by calling contrary evidence.  It could presumably have obtained a more detailed statement from the doctor if it really wished to rely on her evidence.  Here, the Appellant has not dealt with the allegations made in the anonymous doctor’s statement (save that, when dealing with other evidence at paragraph 30 of her witness statement, she has denied refusing to make home visits) and this is clearly because she was told that the Respondent was relying only on the ten specified grounds.  It ought not to have claimed to be relying only on ten grounds if it was really relying on twenty or thirty.  

39.	Another piece of evidence appears in Appendix 1.  This is a letter to Dr Lewis dated 15 February 2008 from the trainer mainly responsible for the Appellant during her GP Vocational Training year in 1993-1994.  He had a number of concerns about the Appellant but the Appellant was eventually judged to be competent and now has more than a decade of further experience.  The letter contains an allegation of dishonesty, but Mr de Bono said that the Respondent did not seek to prove that dishonesty.  I have some difficulty seeing what evidential value that document has and what of relevance it goes to prove.

40.	The Appellant has, of course, had the opportunity to comment on the disputed evidence in Dr Lewis’ appendices and she has responded to Appendix 1, but it does seem to me that she is handicapped because it is simply unclear what the Respondent wishes to prove through the evidence.

41.	In relation to the complaints bundle, she has not even had the opportunity to comment.  Again, I have some difficulty seeing what it is that the Respondent seeks to draw from the complaints, without an investigation as to whether they are justified in respect of serious and relevant matters.  The First-tier Tribunal made it clear that the complaints would not be considered as evidence of the truth of their contents but that the mere number of complaints might “inform the assessment of the extent to which any of the 10 cases may or may not be a fair indication of the standards of [the Appellant’s] ordinary practice”.  That seems to me to be contradictory.  The number of complaints can suggest that the ten cases are a fair indication of the standards of the Appellant’s practice only if it is assumed that at least some of the complaints are both concerned with such standards and are well-founded.  The First-tier Tribunal also commented that both experts would be likely to be able to give a view as to how many complaints a competent general practitioner might ordinarily expect over a given period, the implication being that an adverse inference could be drawn if the number in the present case were higher.  If that is the approach to be taken, it seems to me that, before the hearing, the Appellant ought to be provided with a witness statement from the Respondent’s expert, Dr Lewis, stating how the number of complaints made against the Appellant compared in his view with the number that might usually be expected by a competent general practitioner and what inference should be drawn.  The Appellant would then know the case she had to meet in relation to the complaints bundle and could consider whether it was worth embarking on a detailed analysis of complaints in order to answer it.  How much of utility can really be inferred from the crude number of complaints may be limited.  I imagine that the personality of a doctor can influence the number of complaints, but there is a long gap between having an abrasive personality and being either incompetent or impervious to remedial teaching.  I would also observe that, if it really were only the crude number upon which the Respondent relies, it would not be necessary for the First-tier Tribunal to read the complaints or have the complaints bundle: it would just needs to be told the number, although the Appellant would need the bundle so she could decide how to respond.

42.	I have not overlooked the point made by the First-tier Tribunal that, if the Appellant seeks to provide evidence that she has a good reputation, the Respondent must be entitled to provide evidence that she does not.  However, reputation evidence on either side is only useful if the foundations upon which the views of the witnesses are based are secure.  Thus, for instance, whether the anonymous doctor’s views of the Appellant carry any weight depends on whether it is accepted that the incidents that she observed or were reported to her actually happened.  One comes back to the inconsistency inherent in saying that it is not sought to prove the contents of the allegations while at the same time saying that the evidence should be admitted as relevant and credible.
 
43.	I accept that the First-tier Tribunal showed that it was well aware that much of the evidence had to be treated with caution, being written, hearsay and vague, and that it would have been able, as it went through the evidence, to decide what to accept and what to reject.  However, the difficulty facing the Appellant, and also I think what inhibited Mr Hyam from seeking the exclusion of specific evidence, was that a great deal of the evidence was capable of being relevant to an issue in the case, depending on how it was used.  Although the Appellant knew what the evidence was, there was a real uncertainty as to what reliance the Respondent intended to put on it.  Moreover, this uncertainty hung over a great deal of the evidence and not just one or two pieces.

44.	In my judgment, the First-tier Tribunal erred in not considering whether any specific evidence should be excluded or redacted at the beginning of the hearing or whether there needed to be a clearer ruling as to the potential relevance of the evidence.  It erred in law because it failed to rule that there was an inconsistency in the way the Respondent presented its case and it failed to require the Respondent to give the Appellant adequate notice of the inference it wished the First-tier Tribunal to draw from evidence of uninvestigated complaints and allegations that was not being admitted to prove the contents of the complaints and allegations.

45.	However, the fault lies largely with the parties.  The Respondent failed adequately to review the evidence and the Appellant failed to identify the specific evidence to which she objected.  The consequence was that the case was largely argued in the abstract, which greatly handicapped the First-tier Tribunal.

46.	I set aside the Fist-tier Tribunal’s decision and remit the case for reconsideration.  Meanwhile the Respondent should look carefully at the evidence that does not relate to the ten specific grounds for opposing the appeal and should remove or redact any evidence that it does not rely on.  I do not encourage it to add to its ten specific incidents but, if it does, it should consider carefully the weight of the evidence and whether it is fair to rely on the evidence without providing further particulars or calling a witness to give live evidence.  If it relies on the evidence only for a limited purpose, it should make that plain.  The Appellant should then identify any evidence with which she still takes issue, explaining to the Respondent why.  If an agreement cannot be reached on any issue, the First-tier Tribunal will need to rule on it but the parties should make an effort to co-operate with each other and try to avoid the need for any ruling.

Mark Rowland
18 February 2011