Dr H v NHS Commissioning Board (known as NHS England)

In an efficiency case under the National Health Service (Performers Lists) (England) Regulations 2013, the relevant question concerns the level, nature and quality of the individual performer’s services. It is not confined to isolated clinical errors. Poor clinical performance, inadequate capability, bad practice and poor record keeping may be relevant.

Concerns about probity, credibility and insight may also be considered where they bear on the performer’s capacity to improve and on whether conditions, supervision or training could prevent prejudice to service efficiency. A tribunal need not arrange an interpreter of its own motion where the litigant has participated effectively, has not requested interpretation and the circumstances provide strong indicators that interpretation is unnecessary.

NHS England removed Dr H from the NHS Performers List under regulation 14(3)(b) of the National Health Service (Performers Lists) (England) Regulations 2013, concluding that his continued inclusion would prejudice the efficiency of the services performed by listed practitioners.

The First-tier Tribunal dismissed his appeal and confirmed the removal decision. Dr H obtained limited permission to appeal to the Upper Tribunal on two issues: whether the First-tier Tribunal had acted unfairly by failing to address a possible need for an interpreter, and whether it had taken account of matters relevant only to suitability, including probity, credibility and insight, in an efficiency case.

1. Appeal dismissed. The First-tier Tribunal had not acted unfairly by proceeding without arranging an interpreter. Dr H had participated in extensive regulatory proceedings and in the substantive hearing without requesting an interpreter or expressing concern about his ability to represent himself. The First-tier Tribunal was alert to the difficulties faced by a litigant in person and had taken steps to assist him. His IELTS score of 6 also indicated a reasonable level of competence. In the circumstances, he had effectively participated and the tribunal was not required, of its own motion, to stop the proceedings or enquire whether he wanted an interpreter (paras [29]–[37]).
2. The distinction between an efficiency case and an unsuitability case under the 2013 Regulations can involve overlap. The scope of efficiency is directed to the individual performer’s services. It includes matters such as everyday work, inadequate capability, poor clinical performance, bad practice and poor record keeping. It does not extend to the general management and administration of the NHS. The approach in East Lancashire Primary Care Trust v Pawar [2009] EWHC 3762 (Admin) was endorsed and applied (paras [40]–[42]).
3. Probity, credibility and insight are not necessarily confined to suitability. Where a tribunal is assessing whether a practitioner can improve through training, supervision, self-reflection or willingness to learn, those matters may bear directly on whether conditions could prevent prejudice to the efficiency of the relevant services. The First-tier Tribunal was therefore entitled to consider them alongside the identified deficiencies in clinical performance and record keeping (paras [43]–[48]).
4. The First-tier Tribunal was entitled to conclude that no conditions could adequately address the identified risks. No costs order was made because no proper basis for one had been established (para [49]).

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the First-tier Tribunal’s decision confirming Dr H’s removal from the NHS Performers List was upheld.
• First-tier Tribunal (Health, Education and Social Care Chamber): appeal against NHS England’s removal decision dismissed following a substantive hearing in November and December 2019. The First-tier Tribunal concluded that continued inclusion would prejudice service efficiency and that no conditions would prevent that prejudice.