“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 appeal shall be by way of re-determination of the decision of the Primary Care Trust or of the Health Authority.”
“(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.”
“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.”
“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 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.”
“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.”
“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 of25 November 1996 .”
“Finally, in accordance with Rule 42(5) of theFamily Health Services Appeal Authority (Procedure) Rules 2001 , we hereby notify the Applicant that he may have rights relating to appeals undersection 11 of the Tribunals and Inquiries Act 1992 .”
“… 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.”
“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.”
“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.” (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 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.”
“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.”
“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.”
“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.”
“We are willing to hear the argument but we would request counsel to keep to point and to time.”
“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.”
“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 of17 April 2003 ….”
“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.”