Neath Port Talbot Local Health Board v Gilbey

A specialist appeal panel deciding whether to impose conditions on a contingent removal from a medical performers list has a wide discretion, subject to the statutory purpose of removing prejudice to service efficiency. The conditions must be capable of performance and directed to that purpose. Their practical success need not be established in advance. Judicial review is concerned with legality, rationality and reasonableness, and the court should be slow to interfere with an expert panel’s assessment of competing evidence and interests. Patient safety must be weighed against efficiency, fairness and proportionality, but a different view of the merits does not establish legal error.

A Local Health Board removed a GP from its medical performers list. On appeal, the Family Health Services Appeal Authority ordered contingent removal subject to conditions. When the original advanced-training placement became unavailable, the Authority reviewed and varied the conditions, devising an alternative supervised retraining package. The Local Health Board appealed to the Administrative Court on questions of law, alleging irrationality, unreasonableness, failure to consider public interests and unworkable conditions. During the appeal, the Authority amended one condition concerning assessment by the National Clinical Assessment Service.

The central issues were whether the Authority had acted unlawfully by imposing an inferior alternative to advanced training, by failing properly to account for the National Clinical Assessment Service report and a General Medical Council condition, and by varying the assessment condition.

1. Appeal dismissed. The Family Health Services Appeal Authority had power under National Health Service (Performance List) (Wales) Regulations 2004, regulations 12 and 15, to impose contingent-removal conditions and subsequently vary them.
2. The Authority had a wide discretion as to the nature and type of conditions, provided they were imposed with the purpose of removing prejudice to the efficiency of the relevant services. The conditions also had to be capable of performance. Whether they would in fact be performed was not part of the test of legality, because that would require an assessment of matters which might be impossible to resolve in advance.
3. The panel had considered the absence of supervision by the Local Health Board and the Deanery, the National Clinical Assessment Service report, the General Medical Council condition and patient safety. It was entitled to conclude that the absence of advanced training and external supervision did not necessarily require removal from the list. The court should be slow to characterise an expert appellate panel’s assessment as irrational or unreasonable.
4. The panel had properly balanced patient safety, efficient use of resources, fairness and proportionality. The conditions were a fact-specific and inferior alternative to properly supervised advanced training, and the decision created no general precedent for ad hoc training arrangements.
5. The panel was entitled under rule 43(1) of the Family Health Services Appeal Authority (Procedure) Rules 2001 to amend the assessment condition after concerns were raised by the National Clinical Assessment Service. The amendment was neither irrational nor unreasonable and afforded greater protection to patient safety.

The Family Health Services Appeal Authority ordered contingent removal from the medical performers list on 8 December 2008 and varied the conditions on 30 March 2009. It issued a further decision on 15 May 2009 amending one condition. The Local Health Board’s appeal on questions of law was dismissed by the High Court (Administrative Court).