Fitness to PractiSe Panel
17-18 MAY 2007
7th Floor, St James’s Buildings, 79 Oxford Street, Manchester, M1 6FQ
Name of Respondent Doctor: Mr Tushar BHADRA
Registered Qualifications: Mb BS 1963 Calcutta
Registered Address: Essex
Registration Number: 1540028
Type of Case: Review case of impairment by reason of: misconduct;
Panel Members: Dr L Buchanan, Chairman (Medical)
Mr K Galbraith (Medical)
Mr D Kyle (Lay)
Legal Assessor: Mr D Mason
Secretary to the Panel: Miss L Meads
Representation:
GMC: Ms K Bex, Counsel, instructed by GMC Legal represents the Council
Doctor: Present and represented by Ms C Lambert, Counsel, instructed by Berrymans Lace Mawer Solicitors.
Determination on preliminary legal argument
Ms Lambert: You have made a submission on behalf of Mr Bhadra, that the Panel has no jurisdiction over his case. The basis for this submission is that the General Medical Council (GMC) wrote to Mr Bhadra on 1 September 2006 to inform him that his name had been administratively erased from the register for non-payment of the annual retention fee. After receiving a letter from Mr Bhadra’s solicitors, the GMC sent a further letter to him dated 2 November 2006 which stated that he should not have been removed from the register and that his name had been restored to the register with the same conditions which came into effect on 16 June 2006.
You submitted that Mr Bhadra’s name was therefore erased from the register for approximately two months. You also submitted on Mr Bhadra’s behalf that, even if the erasure was invalid, as far as he was concerned his was a real erasure with real effects and impact on him.
It is your submission that neither the statute nor the rules have provisions for a Fitness to Practise Panel to resume jurisdiction following a doctor’s reinstatement to the register following administrative erasure.
The Panel has considered Ms Bex’s response, on behalf of the GMC, that the administrative erasure of Mr Bhadra’s name from the register was the result of a flawed decision, and that it was an error. Ms Bex submitted that the erasure of Mr Bhadra’s name did not actually take place, and that he remained on the register throughout, and that it was an administrative error, which was simply corrected. It is her submission that the Panel therefore does have jurisdiction over the case.
The Panel has taken into account the Legal Assessor’s advice that in particular the Panel needed to consider the following three alternative situations:
“1. Mr Bhadra was lawfully erased for non payment of his fees. If so he can only be restored by following the required procedure. He remains off the register and the Panel has no jurisdiction;
2. Mr Bhadra was, as the GMC argues, never erased. If so, the position is as it would have been if the purported erasure had not taken place and you have jurisdiction;
3. Mr Bhadra was erased but unlawfully as the defence submits and then restored administratively. In that case you only have jurisdiction if the administration had power to restore with conditions. Neither counsel or myself have found any procedure allowing that.”
Having had time to consider the Legal Assessor’s advice, both Counsel requested to make further submissions and the Panel exceptionally heard them.
The Panel has now considered your initial submission and further submissions, those of Ms Bex and the entirety of the advice of the Legal Assessor.
It has taken into account the witness statement of Mr A, Head of Business Improvement for the Registration and Resources Directorate dated 17 May 2007. In particular the Panel noted that he stated,
“Mr B from the Fitness to Practise Directorate gave authorisation to the Registration Directorate for Dr Bhadra to be erased for non-payment of the ARF in accordance with Section 32(2) of the Medical Act 1983 (as amended)”.
He further stated,
“I investigated and discovered that the letters sent out in the past represented the GMC’s former policy. However, an amendment to the Medical Act in 2003 meant more robust procedures are now in place to deal with applications for restoration following administrative erasure and for that reason, doctors can now be erased for non-payment of the ARF even though they are subject to Fitness to Practise proceedings”.
Although Mr Bhadra had not paid his annual retention fee since 2002, he had been told by the GMC in July 2004 that he would not be erased for non-payment whilst his conditions remained in force.
According to the agreed statement of Mr A, all the notices and letters regarding his non-payment had been sent out to Mr Bhadra in line with the GMC’s standard operational procedure.
As Mr Bhadra was subject to Fitness to Practise (FTP) Procedures, the FTP Directorate was consulted. Authorisation was given by Mr B in accordance with Section 32(2) of the Medical Act 1983 (as amended). A letter was then sent to Mr Bhadra notifying him that he had been erased from the register. The Panel accepts that this letter did not make any reference to the earlier years in which the ARF had not been paid by Mr Bhadra without action being taken, nor to the change of policy to which Mr A’s statement refers.
The Panel has accepted the advice of the Legal Assessor that there is not a specific power to amend the register where a decision of this kind has been made. The Panel has not however taken this advice to mean that, where a simple administrative error has been made, it cannot be addressed by simple administrative correction. The essential question for the Panel has been to consider the nature of the decision that was made and whether it was in fact a simple administrative error.
The Panel does not accept Ms Bex’s submission that the erasure of Mr Bhadra’s name can properly be described as a simple administrative error which could be administratively amended. It concluded that it was a considered, rational, and conscious decision, which was authorised by two people in separate directorates following a change of policy and in accordance with Section 32(2) of the Medical Act 1983 (as amended).
The Panel has noted that the letter dated 2 November 2006 from Mr A purported to reinstate Mr Bhadra to the register on the ground of his then being over the age of 65. Mr Bhadra was entitled to apply for an exemption from the payment of the annual retention fee in accordance with Regulation 8 of the GMC (Registration (Fees) Regulations) as he had reached the age of 65. However, he did not do so and his name had already been erased when this was brought to the GMC’s attention.
In addition the Panel has noted Mr A’s statement in which he said,
“However, in view of the obvious inconsistencies with the GMC’s earlier communications to Dr Bhadra, and in addition to the fact that he was now over 65 years of age, I formed the view that the decision to erase Dr Bhadra for non-payment of the ARF was wrong”.
The content of Mr A’s statement again leads the Panel to conclude that his action cannot properly be described as the simple administrative correction of an administrative error.
The Panel has therefore determined that in these circumstances Mr A had no authority to reinstate Mr Bhadra to the register. Once erased for non-payment of fees, the GMC (Restoration following Administrative Erasure) Regulations Order of Council 2004 governs any reinstatement to the register. In effect, by taking the action he did, Mr A bypassed these regulations.
The Panel has therefore determined to accept your submission that it has no jurisdiction over the case. It has, however, determined that Mr Bhadra was lawfully erased for non-payment of his fees. He can only be restored by following the GMC (Restoration following Administrative Erasure) Regulations Order of Council 2004. His name therefore remains off the register and the Panel has no jurisdiction.
Confirmed
May 2007
Chairman