RM v Trafford PCT

First, regulation 11 provides for the factors to be taken into account. They are not comprehensive, so the tribunal is not limited to them. Nor will they all necessarily be relevant, so the tribunal does not have to consider ones that do not arise in the particular case. What the tribunal must do is form a balanced judgment of the overall and combined effect of the factors that are relevant. It may have done that in this case, but its reasons do not show it. The tribunal’s reasons contain pretty much all that can be said against Dr M, but nothing in his favour. The tribunal had to take account of factors in Dr M’s favour and there were such factors. For one, the sequence of events all stemmed from one prescription. For another, there was the doctor’s previous record of efficiency. Then, there was the doctor’s clinical record and the likely risk to patients. I do not intend this to be exhaustive, merely illustrative. The tribunal’s reasons are inadequate for failing to show how it took into the balancing exercise the factors in Dr M’s favour.

This links to the purposes that reasons fulfil. One purpose is to allow the party who has lost to understand why. When applying regulation 11, that requires more than setting out the case against the party. It involves setting out how the tribunal balanced the factors for and against the removal of the doctor. Specifically, the tribunal in this case failed both to identify the factors in Dr M’s favour and to show how it had assessed their overall significance in conjunction with other factors. Those are essential elements in any explanation to Dr M of why the tribunal dismissed his appeal, but they are missing in this case.

Second, the tribunal did not make the necessary findings of fact to provide a foundation for its application of regulation 11. In order to undertake the balancing exercise that I have mentioned, the tribunal must not only identify any relevant factors, but must also resolve any conflicts in the evidence relevant to those factors. In this case, there were some factual disputes. This was directly relevant to regulation 11(6)(d) – the nature of the incident and likely risk to patients. If penicillin was actually discussed, there is no evidence of any clinical risk for patients. Also important was the dispute about the discussion with the patient before Dr M prescribed amoxicillin. If Dr M had expressly asked the patient about penicillin, that might help to explain and, perhaps, to some extent to mitigate his reaction to the subsequent proceedings.

The PCT has responded to this appeal. However, its submission essentially repeats its opening statement to the First-tier Tribunal. It largely states the history of the case and does not address the issue whether the making of the decision by the First-tier Tribunal involved the making of an error on a point of law: section 12(1) of the Tribunals, Courts and Enforcement Act 2007. It does not contain any relevant points that I need to deal with in this decision.

As the tribunal did not make the necessary findings or give adequate reasons, I have set aside its decision. The experience of the specialist members of the First-tier Tribunal will be relevant in assessing Dr M’s efficiency, so I have directed a rehearing rather than re-make the decision. Nothing that I have said should give any indication of the proper outcome for the rehearing, because I have not formed any view on that issue.

Dr M has represented himself before both the First-tier Tribunal and the Upper Tribunal. It might assist him to obtain legal representation for the rehearing. That would allow his case to be presented more objectively. The First-tier Tribunal will also benefit from his answers to their questions if he were to attend an oral hearing.