Rao v Central Liverpool Primary Care Trust [2007] EWHC 773 (QB)

[2007] EWHC 773 (QB)

Case No 6LV90062

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

LIVERPOOL DISTRICT REGISTRY

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 04/04/2007

Before

MR JUSTICE PENRY-DAVEY

Between

Dr. MANGARAI SRINIVAS RAOClaimant

THE CENTRAL LIVERPOOL PRIMARY CARE TRUSTDefendant

The Claimant in person for in person

Mr. J. Holl Allen (instructed by Messrs Hill Dickinson LLP) for Defendant

Hearing Hearing dates: 14,15,16 February 2007

Judgment

The Honourable Mr Justice Penry-Davey :

[1]For many years the Claimant was a single handed general medical practitioner in Liverpool. The Defendant is the Primary Care Trust for Central Liverpool formerly the Liverpool Health Authority (LHA). The Claimant seeks to recover from the Defendant, whom he seeks to hold liable for his difficulties and ultimately his demise as a general practitioner, General Medical Services (GMS) payments for the periods 21 July 2000 to 4 March 2001 and 8 June 2001 to 28 June 2002, an amount agreed in the sum of £68,767. In addition, he seeks to recover damages in respect of the period 1 July 2002 to 31 December 2004 for non payment of GMS payments, although there is no such claim in the Particulars of Claim; and, on the basis that his medical practice has been ruined by the illegal conduct of the Defendant, damages for loss of earnings in the sum of £748,296 and loss of pension in the sum of £41,169-38. The Defendant disputes any private law right in the Claimant to recover damages from the Defendant and denies any liability to make payment to the Claimant in connection with the provision of General Medical Services for the periods in question, and in the alternative contends that it is entitled to set against any sum due to the Claimant the costs incurred by the Defendant in making alternative arrangements for the Claimant’s patients during the relevant periods, with the result that the claim would be extinguished. In the event of the Claimant establishing a private law right to claim damages for loss of earnings against the Defendant, it is denied that the Defendant acted unlawfully and that the Claimant’s career and earnings have been damaged by any act or omission on the part of the Defendant.

[2]The Claimant began general practice in Liverpool in partnership in 1982, his name having been placed on the medical list of the LHA on 1 April 1982. Eventually after his partner’s death he began to practise single handed and that remained the position. In 1998 (Tab 2 Page 28 (2.28) ) Tom Penn was employed by the Liverpool Health Authority to lead development of services provided by general practitioners (GP) and spent most of his time with general practitioner and practice teams. The LHA had established a practice support team to go into GP practices, look at the provision of services, and the role of practice staff with a view to recommending changes or improvements. The Claimant’s practice in Princes Road Liverpool 8 was identified as needing support, being a single handed practice in an area of high medical and social needs. Concerns had earlier been raised both by patients and by the local community health council at the level of services provided by the Claimant and the practice arrangements. In its June 2000 report (3.1) the Professional Performance Committee (PPC) of the GMC stated that concerns about the Claimant’s practice had existed for some years, and it appears that during 1997 and 1998 the LHA and Mr Penn spent considerable time and effort attempting to help the Claimant remedy the shortcomings in his practice arrangements. Although invited to undergo a test of his professional knowledge which would have assisted in identifying particular areas of deficiency, the Claimant declined. When the support team reported on the situation the GMC appointed a Medical Screener to consider the report; in due course the screener required the Claimant to undergo performance assessment and the matter was referred to the Assessment Referral Committee of the GMC (2.29). As far as Mr Penn could recall, although the support team visited many practices in no other case was concern at such a level that referral to the GMC was required.

[3]The GMC appointed their own medical screener to consider the report into the Claimant and his practice (2.29). The screener decided that the Claimant should be required to undergo performance assessment. The Claimant however did not accept that there was any problem with his performance and declined to agree. It was in those circumstances that the matter was referred to the Assessment Referral Committee and in September 1999 (2.30) the Claimant appeared before the Assessment Referral Committee (ARC) and protested at having to participate in the assessment process. In those circumstances, the GMC directed that a formal assessment of the Claimant’s performance be carried out by their own panel and that the Claimant be asked to co-operate fully with the process. In November and December 1999 the GMC assessment team visited Liverpool, spent time with the Claimant and his practice staff as well as observing the Claimant both in surgery and on practice visits.

[4]On 23 June 2000 the Professional Performance Committee of the GMC (PPC) met to consider the very detailed report of the Assessment Team. Their determination was set out in a letter to the Claimant on 27 June 2000 (3.1). The letter set out the background and the Claimant’s failure to co-operate fully with the support team as well as his refusal to sit a test of his professional knowledge and his failure to implement an agreed development plan. Having considered the evidence about the Claimant’s professional performance since July 1997, the committee judged the standard of his performance to have been seriously deficient in seven areas namely his ability to provide good clinical care, his provision of treatment in emergencies, his ability to keep up to date, to maintain his practice, and to maintain trust and professional relationships with patients, in the fields of the central role of the general practitioner and communication with colleagues, and his ability to delegate and refer. The committee noted with particular concern the evidence that his clinical management of certain conditions was poor, he lacked familiarity with certain diagnostic equipment essential to effective general practice, he had inadequate supplies of medication in his emergency bag, and in his dealings with patients he had difficulties with conflict and with providing them with sufficient information. He was seriously deficient in his professional knowledge and performed poorly in the tests of skills included in phase 2 of the assessment, and his practice premises at the time of the assessment were not up to an acceptable standard. The committee had considered whether the public interest required them to suspend the Claimant’s registration, and were particularly concerned that the deficiencies persisted despite the efforts which the Claimant and others had made in recent years to improve his standard of practice, but they had taken account of his assurance that he would apply himself after remedying the deficiencies identified and had decided to give the Claimant one final opportunity to demonstrate that he was capable of achieving the necessary improvements. They however stipulated the following requirements: 1) You shall confine your medical practice to National Health Service work in a training practice in the NHS where your work will be supervised by a general practice trainer appointed by the Regional Director of post graduate general practice education. Supervision in this context means supervision at a level normally expected in a general practice vocational training situation; (3.4) 2) You shall not engage in single handed practice. 3) You shall not undertake any work as a deputy, assistant or locum or with a deputising service 4) You shall seek the advice of your Regional Director of Post Graduate General Practice Education as to the further action you should take to remedy all the deficiencies in your professional performance described in the report of the assessment panel; and you shall follow any structured remedial training programme which your regional director may devise; 5) You shall undertake and pass a summative assessment of your practice at a time when those responsible for overseeing training deem you sufficiently competent to return to independent practice; 6) You shall allow the GMC to obtain information about the standard of your professional performance, and any remedial action which you have taken in relation to your performance, from your Regional Director of Post Graduate General Practice Education, and any other person who may have assisted in providing you with remedial help. ”

[5]Those conditions were to apply for 3 years or such shorter period as was necessary to fulfil the requirements. The conditions came into force 28 days from that date in the absence of any appeal. The Claimant was told expressly that it was for him to take action to improve his performance, the GMC could not organise the matter for him. Equally, the letter suggested that the Claimant should discuss with those involved how they may be able to assist him, but that nobody was under any obligation to provide him with remedial training or the necessary finance (3.5).

[6]The Claimant did not appeal the decision of the GMC and there were meetings in June and July between Mr Penn, Dr Mathie, Regional Director of Post Graduate GP Education, Dr Barnett, secretary of the local medical committee and the Claimant and his solicitors to see whether arrangements could be put in place to enable the Claimant to fulfil the GMC determination and ensure that there was an ongoing service to patients on his practice list. There was consideration of a merger between the Claimant’s practice and that of Dr Mohanan. Although the Claimant denied that any such instructions had come from him, his solicitors acknowledged that there was a potential difficulty with that merger because the doctor concerned was a single handed practitioner with a large list and other commitments outside his own practice so that it might not be appropriate for him to provide the necessary supervision to comply with the requirements of the GMC. An alternative proposal was that the Claimant would seek a merger with the Princes Park Health Centre which included three GP trainers but they did not agree to any merger and the Claimant acknowledged it could only happen with their consent. Dr Mathie felt unable to support the other proposed merger as Dr Mohanan already had a trainee doctor under supervision together with a high patient list size.

[7]Meanwhile there was increasing concern on the part of the LHA that the patients on the Claimant’s list would be left without a doctor with effect from 23 July 2000, the date that the GMC determination was due to come into force. Mr Penn and colleagues met the Claimant and explained that as he was unable to fulfil the determination or identify arrangements for services to patients acceptable to the LHA, it had to exercise its statutory responsibility for ensuring that health care services were available to the local population, in this case the 1200 patients on his list (2.31). On 21 July 2000 Christine Wall, Deputy Chief Executive of the LHA wrote to the Claimant’s solicitors materially as follows:

“As the determination takes effect from 22 July and to enable Dr Rao additional time to make proper arrangements the Authority will cover the practice with a locum doctor from this date for an initial period of one month. The locum doctor and the practice staff will be reimbursed through temporary practice arrangements and such will not be a direct cost to Dr Rao. The Authority will also during this period make appropriate reimbursements to Dr Rao in respect of the rent of the premises.”(4.2) The LHA appointed a locum doctor to work at the Claimant’s practice, to undertake morning and evening surgeries, carry out necessary home visits and ensure that the necessary out-of-hours care for patients was provided. Mr Penn’s evidence was that that action was taken in accordance with the arrangements laid down in NHS regulations, in that the Claimant was a single-handed doctor specifically precluded from acting as such, in consequence was absent and his obligations under the terms of the service were not being adequately met. In any event, whether in accordance with the regulations or not, General Medical Services (GMS) payments to the Claimant ceased on 21 July 2000. A locum doctor started work at the practice on 23 July 2000 and was remunerated directly by the LHA. He was well received both by the practice staff and the patients. After some days the locum doctor contacted Mr Penn about the Claimant going into the practice, accessing records, directing staff and interfering with the administration of the practice. Mr Penn sought clarification from the GMC of the conditions placed upon the Claimant. He received a message back that in view of the conditions the Claimant should stay away from the practice as he was not under the necessary supervision, and should not involve himself in the running of the practice. The Claimant was told that and accepted and understood the situation. There was correspondence between the Claimant’s solicitors and Dr Mathie about the merger proposals, and on 2 August 2000 Dr Mathie wrote explaining that although the Princes Park Practice would potentially be an appropriate place for the Claimant to be supervised, the practice had not agreed to take him. On 18 August 2000 after a meeting with the Claimant on 17 August, he wrote to Dr Monahan indicating that it would not be possible for him to be the Claimant’s designated supervisor because he already had a GP registrar in post and could not supervise both. On 1 August 2000 the Chief Executive of the LHA, Mr Hoyle, wrote to the Claimant following a meeting of the LHA on 27 July. The letter expressed the concern of the Authority at the fundamental deficiencies identified by the GMC and the effect of the determination on the Claimant’s ability to provide services to his patients. The letter continued (4.6): “The Authority accepted that the determination imposed by the Council is not meant to be punitive but gives you one final opportunity to remedy the deficiencies highlighted by them. The determination however is quite specific in that you are not able to work as a single-handed practitioner and as you are currently included in the Liverpool Medical List as a single-handed doctor the Authority, having taken advice, feels that it must temporarily remove you from the list. The effective date of this temporary removal is 21 July 2000. I can confirm that your name will be re-included in the list when you are able to identify practice arrangements that are not in contravention of the determination or have satisfied the requirements of the General Medical Council. As you will know, since 22 July 2000 locum arrangements have been put in place to ensure ongoing services to patients. The Authority will take responsibility for the payment of the locum doctor and the practice staff as well as continuing to pay you a rent for the practice premises. As you are not yourself providing general medical services no NHS payment can be made to you whilst these arrangements are in place. The arrangements, however, which include keeping your list together, will hopefully allow you in discussion with the Regional Director of Postgraduate General Practice Education, Health Authority senior managers and your PCG the opportunity and time to identify suitable arrangements to satisfy the requirements of the Council’s determination. The arrangement previously mentioned will be put in place for a period of three months, after which time this will be reviewed by the Authority in the light of progress in meeting the determination as identified by you. I would therefore ask that you address these matters urgently. Whilst I am sure you will receive help and guidance from the people referred to above the responsibility is very much on you to meet the requirements of the determination and in due course satisfy the General Medical Council of your performance.”

At the end of August 2000 Dr Mathie wrote to the GMC explaining the difficulties faced by him in assisting the Claimant to fulfil the determination.

[8]In November 2000 the locum doctor contacted the LHA stating that whilst he was happy to continue to provide services to patients he was very concerned at the poor state of the premises and lack of facilities at the Princes Road Surgery. In the light of those concerns a formal visit to the practice was undertaken on 22 November 2000 by a visiting team comprising the Chair of the LHA, the Secretary of the local medical committee, the local Health Manager and Mr Penn. The premises were found to be below the necessary standard as laid down in the regulations in terms of access, facilities, and confidentiality. There were a number of other health and safety issues.

[9]On 10 January 2001, the Claimant appeared before the PPC of the GMC again, and following which the PPC varied the conditions to which the Claimant was subject so as to make it easier for him to engage in remedial training whilst still registered. They expressed continuing concern about the Claimant’s level of insight into the extent of his deficiencies. The new conditions required the Claimant to confine his medical practice to NHS general practice under supervision from a GP appointed by the Regional Director of Postgraduate General Practice Education, initially to practice only under continuous direct supervision until such time as the Regional Director considered it appropriate to reduce the level of supervision. There were further conditions about seeking the advice of the Regional Director as to further remedial action, a requirement to undertake and pass a summative assessment, to allow the Regional Director to obtain information about progress, and to enable the GMC to obtain information about professional standards and remedial action. The fact that there was no obligation on the Regional Director to provide the Claimant with or to finance education or training was repeated and stressed. There followed negotiations with the LHA about funding and a search for appropriate supervisors, and on 19 February 2001 Dr Mathie wrote to the Claimant telling him that he was hoping to be able to finalise arrangements for his supervision shortly so that he might resume practice under the terms of the GMC’s determination and those of the LHA. The supervisors were expected to be a small team of three: Dr Foggin, Dr O’Ryan, and Dr Maudsley and the Claimant was told Dr Mathie might undertake some of the supervision himself. The elements of the programme were set out in detail in a further letter dated 23 February 2001, and on 5 March 2001 the Claimant returned to practice at the Princes Road Surgery working directly under the supervision of the team. It was agreed that the supervision would be put in place for approximately three months to enable Dr Mathie to assess the practicability of the arrangements and to determine whether the Claimant had improved his performance. The LHA had agreed to fund the cost of provision of the supervision, and a letter was sent out to patients on the Claimant’s list explaining that he was returning to practice and outlining the supervisory arrangements. At Dr Mathie’s request, and in compliance with the determination, the Claimant sat the summative assessment MCQ at Clatterbridge Hospital Postgraduate Centre on 9 May 2001. On 28 May 2001 Dr Mathie wrote to the LHA informing them that following a meeting between the supervisors and himself they had reluctantly come to the decision that no further significant progress was likely for the Claimant given the resources available to effect change. Supervision was to cease on 8 June 2001, from which date the Claimant would not be able to practice. The letter continued:

“In arriving at our decision we have supervised Dr Rao for three months and I already have written reports on almost 150 consultations. Dr Rao has not failed to cooperate with us under the terms of the educational agreement signed by him on 27 February 2001 and indeed has made a little progress. However we believe the following issues remain outstanding: 1. Poor clinical knowledge Dr Rao’s overall clinical knowledge is poor. He makes many errors during his consultations and although these have not been seen to be immediately dangerous to patients they make his decision making unreliable. He took the UK Director Summative Assessment MCQ in May and failed. This places him in the bottom 5% of the candidates for knowledge. 2. Poor clinical method Dr Rao’s ability to take a concise clinical history, perform appropriate examinations and arrive at a reasonable plan of action is consistently poor. 3. Poor communication and consultation skills Dr Rao’s use of colloquial English is extremely limited. His ability to communicate with patients who also do not have English as their first language is rudimentary. Listening skills and the ability to pick up partially hidden agendas and non-verbal cues are very weak. He regards his patients as of low intellect and unable to understand explanations but nevertheless talks to them in technical language using much jargon. 4. Inability to deal with consultations with an emotional content Dr Rao ignores distress in patients and has little time for patients with anxiety or depression. He tells people, unhelpfully, that ‘death is inevitable” or to ‘Take it easy’. He has no strategies to deal with psychosomatic problems. 5. Absence of insight Although Dr Rao appeared to accept that his performance was poor in his letter to me of 15 January, in practice he has little or no insight into his poor performance. He also demonstrates a lack of understanding about the steps necessary to remedy his poor performance. His Personal Development Plan and his application for Prolonged Study Leave are graphic examples of this tack of insight. His letters to potential Consultant supervisors also demonstrate a lack of understanding of the effort required to remedy his deficiencies. We do not believe that it would be possible to produce significant improvement in Dr Rao even if we were able to continue to work with him for a significant period. All the above are evidenced in the copious contemporaneous notes taken by the supervisors and will be set out in detail in my report to the GMC which I will copy to you. I am sending a copy of this letter to Dr Rao and to the GMC. In the circumstances you have agreed to a small overrun on the budget of £3,500 set aside for the supervision.”

[10]The decision to end supervision, Dr Mathie said, was ultimately his but made after consultation with colleagues. Subsequently, on 2 July 2001 Dr Mathie sent a detailed report to the GMC enclosing with it a large bundle of documents dealing with the Claimant’s performance under supervision, under various headings appearing in Good Medical Practice. In addition to the specific findings, he advised the GMC that there were a number of over-arching issues which contributed to the Claimant’s undoubtedly poor performance. He pointed out that it was evident that a number of problems in diagnosis, treatment and management arose out of poor basic clinical knowledge, and referred to the fact that the Claimant failed the summative assessment, that result putting him in the bottom five per cent of doctors taking the test. He also expressed the view that the Claimant had known since at least February 1999 that his clinical performance was viewed as inadequate and he had had plenty of time, particularly in view of his very small workload, to improve matters. The second general problem he identified was the Claimant’s lack of communication skills. He noted that his command of idiomatic English was poor, leading to misunderstandings between himself and patients. The third problem, and one which all of the supervisors found distressing, was the Claimant’s view that patients were far too stupid to understand his explanations and that trying to help them with this was a waste of time. Dr Mathie concluded by saying that after three months of significant effort, during which time the Claimant had made some progress, he and colleagues had been forced to the conclusion that his overall performance as a general practitioner was still so poor, and the prospects of significant improvement within any realistic timetable so slight, that he had decided that it was no longer appropriate to continue to supervise the Claimant, and he had reported to the LHA accordingly. On 21 August 2001 the Claimant wrote to the GMC in response to Dr Mathie’s report, setting out steps he had himself taken to co-operate with the process, to accept advice, and to fulfil the requirements. He also set out disagreements he had had with Dr Mathie and his feeling that Dr Mathie had a grudge against him; he had, he said, expected him to be more constructive and objective. He contended that improvements had occurred during the three month supervisory period and that Dr Mathie’s report was substantially unreliable. He took issue in detail with many aspects of the report and suggested that aspects of it were inconsistent with the findings of independent GMC assessors. He requested that he be allowed to practice as a single-handed GP whilst retraining continued, or under the supervision of a retired GP, or from a health centre with a GP overseeing his practice under the overall supervision of another GP. (4.8).

[11]On 31 August 2001 there was a further hearing before the PPC of the GMC who acknowledged the efforts of Dr Mathie and his colleagues to provide remedial training to the Claimant and the financial support provided by the LHA. The Committee considered that although the Claimant had made some limited progress in improving his practice, there were areas which still required improvement, namely good clinical care, diagnosis, investigation and treatment, the referring of patients, record keeping, communication skills and medical knowledge. There was concern also that the Claimant continued to lack insight into the level of the deficiencies in his practice and in his medical knowledge. The Committee came to no conclusion on the Claimant’s contention that Dr Mathie had terminated the retraining programme prematurely, but decided to allow the Claimant a further opportunity to build on the early progress he had made. They imposed conditions which were substantially those imposed in January, save that supervision was extended to Regional Directors or Deputy Directors other than Dr Mathie. Meanwhile, following Dr Mathie’s report in May, the LHA was faced with the problem of having to ensure that services to the Claimant’s patients were maintained. The locum doctor previously employed at the practice had found employment elsewhere and other doctors who might have been available refused the work because of the poor state of the premises at Princes Road (2.35). The LHA, in consultation with the local medical committee had discussions with the partners of the group practice at Princes Park Health Centre about the possibility of their providing a service to the Claimant’s patients. They agreed to do so, but only on the basis that the service would be provided from Princes Park Health Centre. The arrangements were confirmed and the LHA stressed that the Claimant’s list should continue to be maintained as a separate entity. The Claimant was kept informed of the proposed arrangements and a letter was sent to all patients on the list informing them. During September and October 2001 the doctors at Princes Park Health Centre expressed concern at their continued ability to provide a comprehensive service to the Claimant’s patients, partly for lack of space and because of the effect it was having on their provision of services to their own patients. Thus with effect from 1 November 2001 the LHA, following consultation with the local medical committee, arranged for the service to the Claimant’s list of patients to be provided from Abercromby Health Centre and a locum doctor was appointed. At the meeting of the LHA at the end of November 2001 members expressed extreme concern at the ongoing lack of progress in the fulfilment of the conditions placed on the Claimant and the need for his patients to have some stability of service was emphasised. On 20 November 2001 (4.18) Andrew Johnson, an advisor to GPs, wrote to the Family Health Services Appeals Authority pointing out that the Claimant had not received any GMS payments from 23 July 2000 and asserting that the amount owed to the Claimant was estimated at £50,000 gross. He pointed out that the provisions for removing the doctor’s name from the medical list were contained in paragraph 7 of the General Medical Services Regulations 1992, and requested that the Claimant’s name be restored to the Medical List and that he receive immediate payment of the money he was owed. Mr Penn said that that was the first that he appreciated there was any issue over the GMS payments. On the same date Mr Johnson wrote to the LHA asserting that the same sum was outstanding and pointing out in relation to the letter of 1 August 2000 notifying the Claimant of his removal from the Medical List that the removal, whether temporary or otherwise, had not been carried out in accordance with paragraph 7 of the Regulations. Mr Johnson said in evidence that he was first consulted by the Claimant at about the time of those letters and he had had no involvement with the Claimant at the time of the GMC proceedings, nor had he seen any of the reports, although he had seen the GMC determinations. On 29 November 2001 (7.35) Mr Penn wrote to Mr Johnson acknowledging receipt of the letter of 21 November and confirming the Claimant’s name had not been removed from the Medical List and that he was still included on it at that time. He was, however, subject to a determination by the GMC restricting his ability to practice as a doctor.

[12]On 8 January 2002 at the instruction of the LHA, the Chief Executive wrote to the Claimant advising him that subject to allowing him to make personal representations the LHA was considering removing his name from the Medical List in accordance with Regulation 7(2) of the NHS (General Medical Services) Regulations 1992. On 11 January 2002 Mr Penn wrote to Mr Johnson stating that the LHA had sought clarification of the meaning of the words “could not engage in single-handed practice” and that it had been explained that the restriction applied not only to the provision of services but also to the administration of services, and that in consequence it was the Authority’s considered view that the Claimant would have been in breach of the determination had he employed a doctor to act as his deputy as he would still have been responsible for the practice. It was in consequence of the restrictions placed upon the Claimant by the GMC and the need to ensure the continued provision of services that the LHA had put in place temporary arrangements, had funded the costs involved with employment of locum doctors, practice staff, accommodation and other practice expenses to ensure the ongoing provision of services to patients. The letter pointed out that the cost of provision of those services was considerably in excess of what the Claimant would have been entitled to receive by way of GMS payments had his ability to practice not been subject to the restrictions imposed by the GMC. The letter also maintained that the LHA had dealt appropriately with the Claimant, even to the point of providing financial support to the Post Graduate Dean’s department to assist with training and supervision. Further correspondence followed in which clarification was sought and provided about the steps taken to enquire of the GMC as to the meaning of the particular condition and the matter was followed up in correspondence with the GMC. On 6 March 2002 the Claimant appeared before a specially convened subcommittee of the LHA and made representations as to why his name should not be removed from the list. The subcommittee, under the chairmanship of the Chair of the Health Authority, gave considerable thought to the Claimant’s representations but felt they had to take action under the Regulations as there appeared little likelihood that the Claimant would be able to satisfy the GMC conditions and the LHA considered that their first responsibility had to be the proper provision of services to patients. In consequence, on 14 March 2002 a letter was sent by the LHA to the Claimant notifying him of the decision to remove his name from the Medical List and of his right to appeal to the Family Health Services Appeal Authority. The Claimant exercised his right of appeal but in their determination the FHSAA pointed out that the inability of the Claimant to comply with the conditions imposed on him by the GMC was a matter for him to resolve and the LHA had been faced with a practitioner on its medical list who had not provided general medical services personally to his patients for a period in excess of the preceding six months. That situation had not changed. The Health Service had a duty to patients to ensure that general medical services were available from those on the list and given that the period since the Claimant last provided services had continued for over a year and there was no reasonable expectation that the Claimant would soon be able to comply, the appeal was dismissed and the Claimant’s name was removed from the list with effect from 9 June 2002.

[13]The Claimant also exercised his right to make representations to the Secretary of State regarding the decision of the LHA in respect of GMS payments. The Appeal Authority, in its determination on that issue, noted that the LHA had of necessity been required to undertake the payment of locum doctors, practice staff, out-of-hours cover and premises rental and that those costs were well in excess of the Claimant’s entitlement under the Statement of Fees and Allowances. The LHA had put forward the view that it was entitled to offset the Claimant’s remuneration against the expenditure incurred in the provision of services, in accordance with the principles set out in paragraph 48.35 of the Statement of Fees and Allowances. The costs thus incurred by the LHA, Mr Penn said, amounted to £66,372 for the period 23 July 2000 to 4 March 2001 and £64,018 for the period 8 June 2001 to 14 April 2002, sums considerably in excess of the appropriate level of GMS payments to the Claimant. The FHSAA acting on behalf of the Secretary of State in its determination of 25 September 2002 dismissed the Claimant’s representations and upheld the decision of the LHA. It did however highlight the situation with regard to the Claimant’s pension rights and subsequently the LHA ensured in conjunction with the Pensions Agency that the Claimant’s pension contributions were fully paid for the period 22 July 2000 to 29 June 2002.

[14]On 16 December 2002 the Claimant applied to join the supplementary medical list. In June 2003 the Claimant attended further proceedings before the PPC of the GMC which in its determination of 26 June 2003 imposed a total of 15 conditions on the Claimant’s registration. On 6 August 2003 the Claimant was notified of the decision to refuse to admit him to the supplementary list. On 24 December 2003 (3.43) the FHSAA concluded that there was no jurisdiction in the Authority to consider an appeal on the relevant Regulation but it did express the view on the merits that it would have been prepared to allow the appeal to the extent of restoring the Claimant’s registration subject to conditions. On 9 March 2004 the Claimant’s solicitors notified the Defendant by letter of his intention to renew his application to join the supplementary list, which it appears subsequently changed its name to the performers list. On several occasions the PPC considered and varied the conditions for the continuation of the Claimant’s registration, and on 26 April directed that he should not practice clinically as a medical practitioner. The Claimant was also directed to develop a personal development plan identifying the areas of skills and knowledge which he needed to improve and to undergo phase two of the GMC’s performance assessments within three months (3.18).. In November 2004 the PPC was abolished and its functions transferred to the Fitness to Practice Panel (FTP). On 17 December 2004 the FTP expressed concern that the Claimant had scored below the minimum acceptable score in each of the three elements of the phase two assessments and that his scores were poorer than those achieved at the assessment in December 2000. It decided to suspend the Claimant’s registration for a period of 12 months, beginning 28 days from notice being served on the Claimant. On 13 January 2006 at a further hearing before the FTP panel the matter was adjourned part heard and the Claimant’s suspension extended for a further 12 months to protect the public interest during the adjournment. On 5 September 2006, after the commencement of these proceedings, the hearing before the FTP panel was concluded and it directed that the Claimant’s name be erased from the Medical Register. The panel determined that a period of conditional registration would be inappropriate and insufficient, and took account of the scale of the numerous deficiencies in the Claimant’s performance and the results of the two formal GMC assessments. It noted the considerable period of time that had elapsed with little evidence of improvement. It concluded that conditions could not be devised which would be appropriate, proportionate, workable and measurable and which would be sufficient to protect the public interest. (5.17). In concluding that there was no realistic prospect of the Claimant successfully achieving the degree of improvement in his medical knowledge that would be necessary for any safe return to clinical practice, it ordered the Registrar to erase the Claimant’s name from the Medical Register. That decision is the subject of an appeal that remains outstanding.

[15]The National Health Service (General Medical Services) Regulations 1992 provide materially as follows: 16. “7(2) Where a health authority determines, in accordance with paragraphs (3) and (4), that a doctor whose name has been included in the medical list for the preceding six months has not during that period provided any general medical services personally, the health authority may remove his name from the medical list. 25 Temporary provision of services(1) This Regulation applies to the making of arrangements for the temporary provision of general medical services.

(2) Where a doctor ceases to be included in the medical list… or his registration is suspended the (Health Authority) (Primary Care Trust)…. may, after consultation with the Local Medical Committee – (a) make arrangements, for the temporary provision of general medical services for that doctor’s patients, which may consist of or include one or more doctors to undertake the treatment of such persons; … 34 Payments (1) … In respect of each financial year the (Health Authority) (Primary Care Trust) shall make payments to doctors with whom arrangements for the provision of general medical services exist in its locality, in accordance with such rates and subject to such conditions as the Secretary of State may determine and publish in a statement, after consultation with such organisations as he may recognise as representing doctors with whom arrangements for the provision of general medical services exist.” Schedule 2 Paragraph 19 (1) Subject to the following provisions of this paragraph… a doctor shall give treatment personally. (2) … a doctor… shall be under no obligation to give treatment personally to a patient provided that reasonable steps are taken to ensure the continuity of the patient’s treatment, and in those circumstances treatment may be given – (a) by another doctor acting as a deputy, whether or not he is a partner or assistant of the patient’s doctor;

Schedule 2 Paragraph 19

[16]The Claimant’s case in relation to the first period, that is, the period before he was removed from the medical list, is straightforward. It is that he remained on the health authority’s medical list and was entitled to remuneration under the Regulations; that Regulation 25(2) enabling a health authority or primary care trust to make arrangements for the temporary provision of general medical services to the doctor’s patients when he ceases to be included in a medical list or where his registration was suspended, did not apply so as to entitle the health authority to deduct the cost of those arrangements from the remuneration under Regulation 25(15). The Defendant accepts that Regulation 25(2) does not apply to the Claimant’s case as at July 2000, because he was included in the medical list and not suspended. It is submitted however that as far as his single-handed practice was concerned the conditions imposed by the PPC on 23 June 2000 were tantamount to a suspension, because he was precluded from engaging in single-handed general practice and was required to confine his practice to work under supervision in an NHS training practice. When Mr Penn on behalf of the health authority enquired of the GMC as to the implications of the condition that he should not engage in single-handed practice he was told that the Claimant should not involve himself in the running or administration of the service unless he was under direct supervision. In relation to his own practice therefore it is submitted that a suspension would have had no greater effect on the Claimant than the conditions laid down by the GMC and it was a suspension in substance if not in form. The health authority treated the case and it is submitted were obliged so to treat it as if he had been suspended and paragraphs 11.3 (appointment of practitioner to carry on temporarily practice of another in list) and 48.35 (offsetting of sums paid) of the Statement of Fees and Allowances confirm the principle that a health authority is entitled to deduct from the remuneration otherwise payable to a practitioner costs incurred in the provision of general medical services to his patients in circumstances in which he is unable to provide those services. Equally it is submitted that the purpose of payments made to a practitioner under Regulation 34 is to remunerate him for providing, or causing to be provided, general medical services. Where therefore he is unable to do so the cost incurred by the health authority in providing those services is so closely connected with the purpose for which those payments are ordinarily made that it would be inequitable to enforce the practitioner’s entitlement to the payments without regard to the cost incurred. If in those circumstances the health authority were required to make the payments and to pay for the cost of a locum there would be an unjustified loss to public funds. The Claimant’s response to that is that if the deduction provisions in the Regulations do not apply, and it is conceded that they do not, there can be no right to make deductions from the sums to which he is entitled. Had he received the payments to which he was entitled, he accepted in evidence that he would have been unable to afford to pay a commercial locum but he said that his practice could have been covered by friends who would have come to assist him. His evidence was that had he been paid his GMS payments, he would have been able to arrange for his practice to be run by friends until he was suspended by the GMC. The amount of the first part of the claim is agreed in the sum of £68,767, and it is a sum to which on the basis of the regulations the Claimant submits he has established his entitlement. On behalf of the Defendant it is acknowledged that if the legal relationship between the Claimant and the Defendant is comprehensively defined by the Regulations, then the claim as to this part succeeds. Mr Holl Allen, however, seeks to set up a right of equitable set-off of the sums expended by the Defendant in providing services for the Claimant’s patients during the period concerned, which if rightly set off it is conceded would have the effect of extinguishing this part of the claim. As to the principles relating to equitable set-off, I have been referred to the statement of principle in Halsbury’s Laws of England volume 16(2) at paragraph 902:

“Equity did not, however, allow set-off as between mutual independent debts generally; in addition to the existence of cross demands it was necessary that there should be some special equity to call for a set-off. It must be established, first, that the counter-claim is at least closely connected with the same transaction as that giving rise to the claim; and secondly, that the relationship between the respective claims is such that it would be manifestly unjust to allow one to be enforced without regard to the other.”

In volume 42 at paragraph 430 there is the following:

“Where a cross claim for a sum of money is so closely connected with the claim that it goes to impeach the plaintiff’s title to be paid and raises an equity in the Defendant, making it unfair that he should pay the plaintiff without deduction, the general rule is that the Defendant may deduct with impunity the amount of the cross claim, or raise it by way of equitable defence when sued. The element of impeachment requires, in the absence of an independent equitable ground, a sufficiently close connection between the claims. This is not necessarily to be equated with a requirement that the claims arose out of the same transactions, though there is some support for such a proposition. If the cross claims arise out of separate transactions, they may not be sufficiently connected. It is not enough that the claims arose out of the same contract. Nor is it necessarily enough that the cross claim is related to the transaction on which the claim is based. It has been said that the cross claim must go to the root of the plaintiff’s claim or that it must question, impugn or disparage the title to the claim or the claims must be interdependent. There is some support for the proposition that equitable set-off is available whenever the cross claim arises out of the same transaction as the claim or out of the transaction that is closely related to the claim. But the impeachment test was subsequently confirmed at the highest level, though it has been linked subsequently to the notion that the cross claim will impeach the plaintiff’s claim, if the cross claim is so closely connected with the claim that it would be unfair not to allow a set-off. Because the impeachment test is unfamiliar to modern lawyers, the House of Lords has restated the test so that an equitable set-off may arise if there is a cross claim flowing out of and inseparably connected with the dealings and transactions which also give rise to the claim.”

[17]The principles of equitable set-off were further elucidated by Morris LJ in Hanak v Green

(1958) 2 QB 9

at 23:

“The position is therefore that since the Judicature Acts there may be (1) a set-off of mutual debts; (2) in certain cases the setting up of matters of complaint which, if established, reduce or even extinguish the claim, and (3) reliance upon equitable set-off and reliance as a matter of defence upon matters of equity which formerly might have called for injunction or prohibition. … The cases within group (2) are those within the principle of Mondel v Steel to which I have referred. In these cases there is a defence to the claim which the law recognizes (compare the Sale of Goods Act 1893 section 53). The cases within group (3) are those in which a court of equity would have regarded the cross claim as entitling the Defendant to be protected in one way or another against the plaintiff’s claim. Reliance may be placed in a court of law upon any equitable defence or equitable ground for relief: so also any matter of equity on which an injunction against the prosecution of a claim might formerly have been obtained may be relied on as a defence. This may involve that there will have to be an ascertainment or assessment of the monetary value of the cross claim which, as a matter of equity, can be relied on by way of defence but this does not mean that all cross claims may be relied on as defences to claims.”

[18]On the basis of the principle set out in Roy v Kensington and Chelsea Family Practitioner Committee

(1992) 1 AC 624

, it is clear that the Claimant has a private law right to claim remuneration due to him by way of GMS payments under the Regulations. However, in my judgment the Defendant is entitled to set off the amounts expended in the provision of services to the Claimant’s patients against the sum agreed of £68,767 with the result that that aspect of the claim is extinguished. I accept the submissions of the Defendant that it was confronted with a situation where it had to act urgently in the interests of the proper provision of services to the Claimant’s patients, and where it was required to expend substantial sums to ensure that provision. Under the conditions imposed by the GMC, the Claimant was not in a position to provide those services himself or to make effective provision for those services by a locum or some other arrangement. The imposition of those conditions by the GMC had the effect of suspension in substance and put the Defendant in a position where it had to make provision for which it had to pay, and in a situation where the Claimant was unable to provide those services. Payments under the Regulations are made to a medical practitioner for the provision of general medical services. Where he is unable to do so the cost incurred by the Defendant in provision of those services is so closely connected with the purpose for which those payments are ordinarily made that it would be inequitable to enforce the entitlement to those payments without regard to the costs incurred. In my judgment the Defendant is entitled to set off against the sum claimed the amount expended by way of provision of those services which it is accepted exceeds the amount claimed. Accordingly the first part of the claim fails.

[19]The second aspect of the claim which does not appear in the particulars of claim but which was raised by the Claimant at the hearing relates to the period 1 July 2002 to 31 December 2004. The Claimant seeks to recover damages equivalent to the general medical services payments to which he submits he was entitled for the period concerned, which runs from the date on which his name was removed from the medical list to the date of his suspension by the GMC. The Claimant acknowledges that under regulation 7(2) where a health authority determines that a doctor whose name has been included in the medical list for the preceding 6 months has not during that period provided any general medical services personally, the health authority may remove his name from the medical list. The Claimant acknowledges that his name was removed from the medical list, but submits that the regulation was inappropriately applied to the situation, where, as he submits, his non provision of medical services was the fault and responsibility of the Defendant and Dr. Mathie in that the latter would not allow merger of the Claimant’s practice with another practice. That, submits the Claimant would have resolved all of his problems, he would have been in practice and, under supervision, providing general medical services to his patients. Had that been the case, the health authority would not have been able to rely on his non provision of general medical services over the relevant period and consequently would have been unable to rely on regulation 7(2). More particularly, he asserts that Dr Mathie’s withdrawal of the provision of supervision and remedial training was premature; he asserts that Dr Mathie had a grudge against him and had the supervision not been withdrawn as he asserts prematurely he would have been in practice providing general medical services to his patients and regulation 7(2) would not have been applicable. The Defendant submits in relation to this aspect of the claim that, in the first place once the Claimant had been removed from the medical list, there was no entitlement to GMS payments in any event and in so far as the claim is in effect a claim for damages for loss of earnings, there is no such claim in law available to the Claimant. I reject the Claimant’s case that his non provision of general medical services for in excess of 6 months was deliberately or artificially created by the Defendant or Dr Mathie. The Claimant was a caring doctor well regarded by some of his patients, including 3 who gave evidence of their regard for him, but it is equally clear in my judgment that there was and had been for a considerable period well founded concern about the Claimant’s professional competence and that was a situation that Dr Mathie, for whose actions in any event the Health Authority were not in any way responsible, was bound to address and attempted to do so. I reject any suggestion that he acted unfairly or improperly towards the Claimant and in my judgment under the regulations the Defendant was entitled to act as it did in June 2002 by removing the Claimant from its medical list. In those circumstances there was no entitlement on the part of the Claimant to GMS payments.

[20]There is a further difficulty which arises on this aspect of the claim and on the final aspect. The Defendant submits that the Claimant has no private law right to recover damages as a general practitioner from a health authority. In Roy v Kensington and Chelsea and Westminster FPC

(1992) 1 AC 624

the House of Lords held that where a GP sought to recover unpaid remuneration in accordance with his statutory terms of service, he could do so by ordinary action. Lord Bridge (at 630) stated that the statutory terms were as effective as they would be if they were contractual to confer upon the doctor an enforceable right in private law to receive the remuneration to which his terms of service entitled him, but he doubted whether the doctor provided services pursuant to a contract with the FPC and was content to assume that there was no such contract. Lord Lowry (at 649) referred to the conclusion of the Court of Appeal that there was a contract for services and indicated that he could not altogether accept the reasoning which led the Court of Appeal to conclude that there was a contract. He continued ; “I would here observe that the mere fact that the Act and the Regulations constituted a statutory scheme which lays down the doctor’s “terms of service” (an expression which has contractual overtones) and creates the relationship between him and the committee, is not fatal to the idea of a contract, but that relationship did not need to be contractual. Moreover, the discretion which the scheme confers on the committee is not typically characteristic of a contractual relationship, and the same can be said of the appellate and supervisory role given to the Secretary of State. But the actual or possible absence of a contract is not decisive against Dr Roy. He has in my opinion a bundle of rights which should be regarded as his individual private law rights against the committee, arising from the statute and regulations and including the very important private law right to be paid for the work that he has done. As Judge White put it, at page 12; “The rights and duties are no less real or effective for the individual practitioner. Private law rights flow from the statutory provisions and are enforceable, as such, in the courts but no contractual relations come into existence.”….. An important point is that the court clearly has jurisdiction to entertain the doctor’s action. Furthermore even if one accepts the full rigour of O’Reilly v Mackman, there is ample room to hold that this case comes within the exceptions allowed for by Lord Diplock. It is concerned with a private law right, it involves a question which could in some circumstances give rise to a dispute of fact and one object of the plaintiff is to obtain an order for payment (not by way of damages) of an ascertained or ascertainable sum of money.”

[21]Lord Emslie, Lord Griffiths and Lord Oliver agreed with both Lord Bridge and Lord Lowry. It is clear therefore that the claim in the Roy case was for sums said to be due under the regulations, and that there was no claim for damages. In my judgment although the Claimant has a private law right to be remunerated under the regulations (subject to any valid defence or set off on the part of the Defendant) the Claimant has failed to establish the existence of a contract with the Defendant, still less a contractual term the breach of which would sound in damages. Even if he had managed to overcome those two hurdles there was in the conduct of the Defendant nothing in my judgment which amounted to or constituted any breach, in that I have found that the Defendant acted properly in removing the Claimant’s name from the list.

[22]The final part of the claim is for very substantial damages for loss of income to the age of 75. The Claimant puts it in this way; “… but for the following undesirable actions of health authority and Dr. Mathie I would have secured supervision and remedial training anywhere in the country and like other under performing GP’s under similar GMC conditions I would have fulfilled all the conditions of GMC and returned to my practice and practiced until the age of 75. 1. Health authority by attaching importance to the unfavourable comments of Dr Mathie made out a grudge against me decided not to allow the merger with my practice with a nearby training practice – Sandringham medical centre. GMC had given approval to this proposal because it was satisfying all the conditions of GMC. 2. The proposal Dr Rao to be trained by Dr Whitlani at Abercromby Health Centre a nearby training practice was put forward on 4 July 2002 to the health authority – PCT which did not receive any consideration. Had the health authority – PCP approved this proposal it would have solved all my problems. 3….Inappropriate removal of my name from the Liverpool Health Authority medical list thereby blocking all my training and supervision avenues. 4. My application to join supplementary medical list to enable myself to apply to any other deaneries for training has been unjustly refused by the health authority – PCT. The appeal was allowed by refusing discretionary grounds but then the mandatory clause of jurisdiction was brought in thereby blocking my chances of retraining with any other deaneries. 5. My application to join performers list was deliberately delayed in spite of several reminders from January 2004 to May 2004 until I was asked by the GMC not to practice clinically as a medical practitioner (not suspended) because I was not on the medical list of Liverpool Health Authority/PCT for a while and for this reason I was not practicing. If I were to be considered by the health authority – PCT and joined the performers list there was no reason for the GMC to ask me not to practice clinically as a medical practitioner. 6. Dr Mathie prevented Dr Maudsley , Dr Foggin, Dr Jasudasan, Dr Abraham and Dr Kuruvilla from assisting me with the training and fulfilling GMC conditions. It is obvious from the facts stated that the health authority’s plan of action was to take over my practice by acting outside the regulations, then not to approve my practice merger with two neighbouring practices and to block all the avenues of retraining by removing my name from the medical list, then to refuse to accept on supplementary list and then to deliberately delay its consideration to join the performers list, in the meanwhile to reduce the practice from 1200 to 700, then to 500 and then to allocate a small list to someone else, thereby dissipating all my practice income. Health authority has been successful in its mission by abusing its powers excessively and disproportionately, in addition by resorting to all illegal means. Justice requires due consideration to be given to the facts stated.”

[23]I have already made my finding that there was no contract existing between the Claimant and the Defendant but even if I am wrong about that, any claim for breach of contract, on the evidence I have heard and considered would clearly fail. Although it is clear that the Claimant strongly holds the view that he has been unfairly or improperly treated, in my judgment it is clear in the event that it was the significant deficiencies in his competence, his lack of recognition of same and his inability to correct them that led to his right to practise medicine initially being subject to conditions and subsequently being suspended. It is important to note that the original imposition of conditions by the PPC followed a performance assessment by the GMC which had been required after the Claimant’s appearance before the assessment referral committee in 1999. In their determination the committee indicated that concerns about the Claimant’s practice had existed for some years despite attempts to help him to remedy shortcomings; he had not co-operated fully and in particular had declined to sit an MCQ test and had agreed a development plan which he had not implemented. That committee identified serious deficiencies in a number of areas of practice. When the GMC relaxed the conditions to enable the Claimant to practise under supervision, arrangements were made which were only brought to an end from June 2001 because of insufficient progress and the lack of any likelihood of any further progress. I reject the contention that the withdrawal of these arrangements was premature or hasty; the concerns that remained were well founded and such as the Defendant in the light of Dr Mathie’s findings properly accepted. In 2001 the Claimant failed the MCQ component of the summative assessment. By April 2004 the GMC noted that almost 4 years had passed since the first hearing before the committee when the Claimant’s performance had been judged to be seriously deficient, that the Claimant had been unable to secure the training and support envisaged to the extent that he felt that route was now blocked to him, and the committee was expressing concern that there was little objective evidence since the first hearing that the Claimant had been able to demonstrate any improvements to his clinical practice in the areas outlined as being a cause for concern or unacceptable. Concern was again expressed about lack of insight by the Claimant into the full nature of his deficiencies and further concern that by 2004 he may have become de-skilled. He was required to undergo phase 2 of the GMC’s performance assessment which he subsequently failed, scoring below the minimal acceptable score in each of the three elements with his score in two of those elements considerably lower than the minimal acceptable. Additionally, his scores at that assessment were poorer than those achieved at the December 2000 assessment. In my judgment, on considering the detailed course of events in this case, it is clear that the responsibility for the situation in which the Claimant’s capacity to practise medicine was originally subject to conditions and finally curtailed lies in the Claimant’s own failings and is not attributable to any breach, action or default on the part of the Defendant. Accordingly, even if a claim for damages against the Defendant were sustainable in law, on the evidence I have heard both the second limb in respect of the period 2002 – 2004 and the third limb being the substantial claim for damages for loss of earnings and pension fail on the evidence. Accordingly the claim is dismissed and there will be judgment for the Defendant.