Kataria v Essex Strategic Health Authority

A statutory review of a national disqualification is directed to whether the disqualification should continue or end. It is not a rehearing of the earlier tribunal’s findings, procedures or decision. The practitioner bears the onus of showing that revocation is justified, although the respondent bears the burden of proving alleged subsequent misconduct. A tribunal may consider contextual evidence explaining earlier conduct without reopening the earlier decision. Probity, reliability, professional development and potential clinical shortcomings may bear on the efficiency of NHS services. The tribunal may assess ethical standards relevant to that statutory question, even where the same conduct may also concern the GMC. The decision must be fair, reasonable and adequately reasoned; express use of the word proportionality is unnecessary.

Dr Kewel Kataria appealed under the National Health Service Act 1977 against the decision of the Family Health Services Appeal Authority dated 30 July 2003. The FHSAA had refused to revoke a national disqualification imposed following the 1996 decision of the National Health Service Tribunal.

The appeal raised issues concerning the scope of a review under section 49N(7), alleged bias, the admission of written evidence, the significance of non-disclosure of the disqualification, the burden of proof, the relevance of GMC proceedings, proportionality and the adequacy of reasons.

The appeal was dismissed. The appellant was ordered to pay the respondent’s costs, to be summarily assessed if not agreed.

1. Scope of review. A review under section 49N(7) concerns the national disqualification, not the correctness of the earlier tribunal’s decision. The FHSAA must decide whether the disqualification should be confirmed or revoked. It is not required to investigate alleged procedural flaws, reconsider earlier findings of fact or decide whether the original disqualification was justified. The statutory waiting periods, the public interest in finality and the existence of rights of appeal on points of law supported that construction. The court declined to follow Rohatgi v Medical Tribunal of New South Wales [1998] 6 NSWCA Jud Rep.
2. The FHSAA may receive evidence explaining the circumstances in which earlier misconduct occurred, such as evidence of illness, treatment or personal stress. That does not permit the earlier findings themselves to be reopened.
3. Burden and statutory question. The practitioner seeking revocation bears the onus of establishing that the disqualification should end. The respondent bears the burden of proving facts relied on as subsequent misconduct. The ultimate question is whether revocation would prejudice the efficiency of NHS services.
4. Probity and evidence. The FHSAA was entitled to treat non-disclosure of the disqualification as a matter of probity and good practice. Integrity and reliability in written and oral statements may affect NHS efficiency. The FHSAA could consider those matters even though they might also be relevant to the GMC. The admission of witness statements without cross-examination was permissible because there was no material factual dispute and no unfairness was shown.
5. Fairness and proportionality. The applicable bias test was whether a fair-minded and informed observer would conclude that there was a real possibility of bias. The tribunal’s preliminary view did not establish prejudgment of the merits. Although the applicability of Convention proportionality was doubted, the decision satisfied both proportionality requirements and the common-law requirement of fairness and reasonableness. The reasons concerning probity and lack of continuing professional development were substantial and cogent.
6. The statutory test required the FHSAA to assume that the practitioner worked within the NHS and ask whether NHS efficiency would then be prejudiced. It was irrelevant that the practitioner did not intend to work in the NHS.

This was a statutory appeal to the High Court from the decision of the Family Health Services Appeal Authority dated 30 July 2003. The FHSAA had confirmed the national disqualification.