DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to dismiss the appeal by the appellant.

The decision dated 8 August 2011 of the First-tier Tribunal (Health, Education and Social Care Chamber) (Primary Health Care Lists), following the paper hearing at Pocock Street, London on 4 August 2011 under file reference PHL/15386, does not involve an error on a point of law.  

The tribunal’s decision, confirming the decision of the Warrington Primary Care Trust on 23 March 2011 to remove the appellant from the medical performers list on the ground of unsuitability therefore stands.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The Upper Tribunal’s decision in summary

1.		The appeal by Dr Noronha to the Upper Tribunal is dismissed.  The First-tier Tribunal’s decision does not involve any error on a point of law and stands.  That decision in turn was to dismiss Dr Noronha’s appeal against the decision of the Warrington Primary Care Trust (the PCT), dated 23 March 2011, to remove him from the medical performers list (MPL) on the ground of unsuitability.

The background to this appeal

2.	The substantive issue in this appeal to the Primary Health Lists (PHL) division of the First-tier Tribunal (or the FTT, part of the Health, Education and Social Care Chamber) was identified by the FTT in the following terms: was Dr Noronha’s behaviour “in talking to patients about his religious beliefs without their consent or agreement ... such that he was unsuitable to be included in the MPL and whether the decision to remove him from the list by the PCT was correct and proportionate” (FTT statement of reasons in Dr Noronha v Warrington PCT (PHL/15386) at [1.1]).   

3.	I do not need to refer to the chronology of events in any great detail, not least as they are covered by the FTT in its statement of reasons.  It is sufficient to note that Dr Noronha was first suspended from employment by the PCT in October 2006 and then suspended by the PCT from its MPL in February 2007.  This followed complaints from the relevant practice’s senior partner that the appellant had introduced religious matters into consultations with patients but without their consent.  This allegedly included advising patients to address their concerns to God rather than to seek medical treatment. 

4.	In 2009 Dr Noronha was issued with a warning about his conduct by the General Medical Council (GMC), which was to remain on his record for five years.  Following a further complaint of a similar nature, he was suspended from the Warrington PCT’s MPL on 21 October 2010 and was removed from the list on 23 March 2011.  His appeal against that removal was dismissed by the FTT in the decision now under appeal.  The FTT dealt with the case on the papers, having previously conducted a case management hearing by telephone with the appellant and the PCT’s legal representative. Judge Aitken, the HESC Deputy Chamber President, subsequently refused to set aside the FTT’s decision and also refused permission to appeal to the Upper Tribunal.

5.	It is not in dispute that the legal framework for such an appeal is largely contained in the NHS Performers List Regulations 2004 (SI 2004/585).  These set out the criteria by which decisions to remove a doctor on the basis of her or his unsuitability are to be considered.

The proceedings before the Upper Tribunal

6.	Dr Noronha renewed his application for permission to appeal to the Upper Tribunal. I held an oral hearing of that application on 23 January 2012 in Manchester.  Dr Noronha kindly provided further documentation at my request and I subsequently gave permission to appeal on 6 February 2012.  In doing so, I indicated that the two points that appeared to be most arguable were as follows.  

7.	The first was whether the FTT had properly applied rule 23(1) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699; “the HESC Rules”). This provides that “the Tribunal must hold a hearing before making a decision which disposes of proceedings unless—

(a) each party has consented to the matter being decided without a hearing; 	and
(b) the Tribunal considers that it is able to decide the matter without the 	hearing.”

8.	The second point was that I considered that (as I indicated in the detailed grant of permission) “it may be arguable that, despite the care that it take in considering this appeal, the FTT may not have found sufficient facts or given adequate reasons for its decision.”  I referred in particular to paragraph [4.3] of the statement of reasons, where the FTT said:

	“We considered his letters of the 15th June and 18th July 2011. We 	concluded that these letters fell well short of being an unconditional apology, 	indicated something less than full insight, and were not an unconditional 	agreement not to repeat the behaviour in the future. We further had regard to 	the fact that he had promised to change his approach to patients on previous 	occasions (such as at the meeting with Dr Tyrer on the 16th January 2009) 	but had subsequently repeated his actions. We also had regard to the 	evidence in the case that he appeared to suffer a compulsion to repeat his 	actions.”

9.		The appellant’s letter of 18 July 2011 included the following passage: “Once again, I apologise unreservedly for the anguish and upset caused to patients, colleagues and authorities for the overzealous and insensitive manner in which I behaved”.  In granting permission, I observed that there were obviously risks in highlighting one passage, and possibly taking it out of context, but wondered whether it was not immediately clear how this “fell well short of being an unconditional apology”.

10.		The various other points made by Dr Noronha in his grounds of appeal would not have justified giving permission. For example, the appellant criticised the FTT for not referring in its statement of reasons to his witness statement of 2 July 2011.  I took the view that this point was not arguable, for the reasons identified by Deputy Chamber President Judge Aitken in refusing permission to appeal on behalf of the FTT, namely that the matters referred to in that witness statement were simply a repetition of points that had already been made in correspondence and considered by the FTT.

11.	Similarly, the fact that the GMC had investigated the same complaint as had given rise to the present proceedings and had itself decided to take no further action (GMC letter dated 9 November 2011) did not assist the appellant in this appeal.  The FTT had plainly been aware of the GMC investigation.  There had been no request to adjourn the FTT proceedings pending the outcome of the GMC inquiry.  Even if the two sets of proceedings derived from the same incident, the test, procedures and issues were not the same.  Crucially, of course, the GMC outcome letter dated 9 November 2011 was by definition not before the FTT in August 2011, so the tribunal can hardly be criticised for coming to a different conclusion.

12.		The rules governing oral hearings before the Upper Tribunal are not the same as those that apply before the FTT.  This is not surprising as the former is almost exclusively concerned with questions of law, whereas the latter is the primary fact-finding body. Under the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), I may make a decision without a hearing (rule 34(1)), but must have regard to the parties’ views (rule 34(2)).

13.		Dr Noronha indicated that, having had an oral hearing of the application, he saw little that could be gained by a further oral hearing.  The PCT indicated that it was also content for the matter to be decided on the papers.  I have taken into account the parties’ views and considered the overriding objective under rule 2, and consider that the appeal can be resolved without a further oral hearing.  I am also conscious that in the event that the appeal were to succeed, there would almost inevitably be a re-hearing before the FTT, as there would be issues of fact for that tribunal to determine.  I have, of course, considered the parties’ further written submissions in reaching my decision.

Did the FTT consider that it could decide the matter without an oral hearing?

14.	In the grant of permission, I noted that rule 23(1) of the HESC Rules is, to all intents and purposes, in the same terms as rule 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685; “the SEC Rules”), which applies to social security appeals.  The leading case on that provision is MM v Secretary of State for Work and Pensions [2011] UKUT 334 (AAC). Judge Mesher held, in effect, that where the FTT does not hold a hearing, and there is no record of proceedings, then any statement of reasons must deal explicitly with the conditions in rule 27(1) of the SEC Rules.  At paragraph 12 Judge Mesher held as follows:

		“... It is not good enough for a tribunal in the statement of reasons simply to 			record that the 	claimant has opted to have his appeal dealt with without a 			hearing. It is necessary for the tribunal to acknowledge explicitly that it has 			considered both of the necessary conditions for excluding the duty under rule 		27(1) to have a hearing and to give some reasons (which may, in appropriate 		circumstances, be very shortly expressed) for its conclusion.”

15.		I also observed that the FTT did not mention in its statement of reasons that the appellant had opted to have his appeal dealt with at a paper hearing.  Nor did the statement of reasons include any further discussion as to whether it was appropriate or not to proceed on the papers or whether there needed to be an oral hearing.

16.		The PCT’s submission is that MM v Secretary of State for Work and Pensions can be distinguished on its facts.  That was a case where there was simply no indication from the FTT file that the issue of whether the tribunal could go ahead on the papers had ever been considered by the panel.  In the present case, there had been the earlier case management hearing.  The record of this telephone hearing, along with the associated directions, made it clear that the appeal was not being heard on the papers simply because that was what the parties had agreed.  Rather, the presiding judge had considered the evidence already on file, had considered what further evidence might be provided and had made appropriate further case management directions, and in doing so had expressly referred to rule 23.

17.		It is true that there is no further mention of the point in the statement of reasons.  However, the statement of reasons has to be read in context, and that include the context of the earlier directions.  In those circumstances I accept the PCT’s argument that MM v Secretary of State for Work and Pensions can be distinguished.  I also accept the submission that on the face of the record both limbs of rule 23 were considered by the judge at the case management hearing. I accordingly find that there was no breach of rule 23 of the HESC Rules.

Did the FTT find sufficient facts and given adequate reasons for its decision?

18.	Dr Noronha was frank at the Upper Tribunal oral hearing of the application for permission to appeal in accepting that his initial reaction to the complaint in question had not been acceptable or appropriate. The gist of his argument, however, was that by the summer of 2011 his stance had significantly shifted.  In his words, ‘the proverbial penny had dropped’.  He argues that the FTT were effectively ‘taken in’ by what he described as the caricature erroneously presented of him by the PCT.  He repeated what he described as his unconditional apology to all concerned and his assurance of future compliance with GMC guidelines.

19.		The PCT relied on the FTT’s decision as a whole.  It argued that paragraph [4.3] of the statement of reasons could not be read in isolation.  It had to be read in the context of the chronology of the case.  Further, the FTT had concluded on the evidence before (at [4.4]) that if allowed to continue to practise, the appellant would continue to repeat his actions, despite his letters of 15 June 2011 and 18 July 2011.  That, the PCT argued, was a clear finding of fact which was entirely justified on the evidence taken as a whole and could not be disturbed by the Upper Tribunal in an appeal confined to points of law.

20.		I also agree with the PCT’s submissions on this point.  It is axiomatic that the FTT is the primary fact-finding body. It is an expert tribunal whose members bring to the proceedings a range of different perspectives. It is also important that its decision must be read as a whole and also read in the context of all the evidence before it.  On that basis, whilst I considered that there was sufficient material to justify a grant of permission to appeal, I am satisfied that the FTT’s decision does not disclose any error of law.

21.		It is important to emphasise that the issue before me is not whether or not Dr Noronha is or is not unsuitable for inclusion on the PCT’s list.  The question for me is whether the FTT made any mistake of law (including any procedural unfairness) in reaching its decision.  I have concluded that it did not, for the reasons above.  Dr Noronha had a number of opportunities to ask for an oral hearing of his appeal before the FTT, which he declined to take up.  My understanding from his comments at the permission application was that he regretted that stance, which he attributed to what he said was his earlier (but now changed) unwillingness to face up to the issues raised by these proceedings.

22.		That may be so, and it may be that had Dr Noronha opted for an oral hearing the FTT proceedings might have resulted in a different outcome.  It might have made no difference to the outcome.  I simply do not know.  However, my conclusion is that the FTT made no error of law and so this appeal to the Upper Tribunal must be dismissed.  The result is that the FTT’s decision stands.

23.		I reiterate that Dr Noronha attended the oral hearing of the permission hearing and put his case clearly, concisely and courteously.  He has also complied carefully with all the Upper Tribunal’s directions in this appeal.  However, I am not the judge of his suitability or otherwise to be on the MPL maintained by the PCT.  The FTT was the judge of that on the facts; it found against him in a decision which I have concluded involves no legal errors.

Conclusion

24.		I conclude that the decision of the First-tier Tribunal involves no error of law.  I must therefore dismiss the appeal (Tribunals, Courts and Enforcement Act 2007, section 11. 

Signed on the original			Nicholas Wikeley
on 29 May 2012				Judge of the Upper Tribunal