Devon Primary Care Trust judgement in High Court
DevonPCT judgement
An account of the suspension, contingent removal and termination of Devon GP Dr Roger Stephenson's contract, the subsequent High Court judgement against Devon Primary Care Trust and ongoing developments in this case.
Devon Primary Care Trust (now NHS England).

NHS Devon motto

Devon PCT's quasi-judicial process

No witnesses were called in any of Dr Stephenson’s four PCT hearings.
Devon Primary Care Trust HQ
County Hall, Exeter
photo of Devon PCT headquaters
DoH Guidance does give the panel chair (i.e. Dr Kevin Snee) the discretion as to whether witnesses should be called or not. However lawyers Bevan Brittan offer this advice following a Judicial Review in 2006: “Where there is an important point of primary fact on which there is a dispute between the parties and the point turns vitally on one person’s word again (sic) another, the Court suggested that a witness should be heard first hand to assist in the determination of the issues.” And “We would urge all PCTs to revisit your internal policies and procedures in relation to the management of primary care practitioners to ensure that they are consistently fair and thorough throughout.
The PCT's lawyers throughout Dr Stephenson's case, including the High Court, were Bevan Brittan, whose advice to PCTs is quoted here.

As constituted, the PCT Screening Group and all four Hearing Panels had a local GP representing the LMC as a voting member, in addition to another doctor appointed by the PCT.

Devon PCT states, concerning Dr Stephenson’s appeal to the FHSAA, that as he had met the conditions imposed on him, and that there was no requirement for his contingent removal to be continued, “...the appeal was not contested by the PCT.” This is incorrect: they wrote to the FHSAA on 29 October 2008 stating “The PCT intends to oppose this Appeal...” and subsequently tried to have the High Court appeal struck out on the basis that Dr Stephenson’s case was “academic” as he was by now back practising without restrictions.

This is what Mr Justice Burton said to the PCT’s Barrister, concerning the PCT’s application (to dismiss Dr Stephenson's appeal as "academic").

“Yes, Ms Hanif, if a barrister was hauled up before the Bar Council and accused of misconduct, say running a case which was utterly hopeless and was suspended for eight weeks from practising, and the appeal which he launched took eight weeks to come on, and he was then told it was completely pointless for him to proceed with the appeal because his suspension had run out, what would you be saying?   I have never heard such nonsense as a suggestion that this is an academic appeal.

Her reply was inaudible.



Suspension - A "neutral" act?

According to the DoH Primary Medical Performers Lists (2004) (.pdf) suspension from medical practice as a GP, is a neutral act. “Suspension is a neutral act, not a disciplinary sanction. It is intended to protect the interests of patients, staff and the doctor who is suspended. It should therefore be a rare event. Misuse of the suspension power can result in injustice, in damage to the doctor’s reputation, career and personal life, and in waste of NHS resources. Therefore it should only be imposed once the PCT has considered whether there is a case to be answered and whether it has reasonable and proper cause to suspend. There is no right of appeal against suspension. The doctor continues to be paid but is not allowed to treat patients.

Commenting on the Performers List system, this is what the Medical Protection Society had to say in 2007 “At the moment the system is fatally flawed. The Performers List System does not provide a fair and transparent disciplinary framework.” Case Law: Mezey v South West London and St George's Mental Health NHS Trust now suggests that Suspension is not a neutral act.

In Dr Stephenson’s case suspension for 6 months from his role as senior partner in his two man practice was deemed “a neutral act” by Devon PCT.  Their Rebecca Harriott wrote this letter (.pdf) which was sent to patients.



Devon Primary Care Trust-worthy?

Constitution of the Panels:
Devon PCT’s own guidelines HR26 (.pdf) – adopted by the Board on 12 February 2008 and due for review on 31.3.2010) state (2.62) “3 out of 5 members, including one practitioner member must agree” on the outcome.  For Dr Stephenson’s first hearing on 4th March 2008, there were only 4.

At his second hearing on 19th March 2008, Dr Stephenson was suspended for 3 months. The PCT scheduled his third hearing for 19th June, but his suspension would have lapsed by then! Nine days before the planned hearing they changed the date to 18th June. Previous requests by Dr Stephenson to alter the date to enable his preferred representative to be present had been rejected by the PCT.

Above the law?
National Health Service (Performers List) Regulations 2004

Regulation 10(11): “… the Primary Care Trust … shall then, within 7 days of making that decision, notify him of -

(a) that decision and the reasons for it (including any facts relied upon);”

Dr Stephenson was contingently removed at the hearing on 2nd September 2008. Circumventing the regulations, the PCT did not notify him until 16 days later on 18th September, starting his Contingent Removal on that day. This was the day that his suspension would have lapsed. Combined with the late change of the June hearing date, this suggests the PCT were determined to keep him out of his practice for the maximum period possible.

Regulation 16(8): “Where a decision is changed on ... appeal, ... the Primary Care Trust shall notify the persons or bodies that were notified of the original decision of the later decision ....”

Regulation 16(5) “The Primary Care Trust shall send to the performer concerned a copy of any information about him provided to the persons or bodies listed in paragraph (2) or (3) [i.e. GMC, NCAS, Secretary of State and equivalent in Wales, Scotland and N Ireland], and any correspondence with that person or body relating to that information.”

Devon PCT did not undertake this legal obligation.  The new CEO was approached directly, and in March 2010, eight months after the PCT’s contingent removal decision had been overturned in the High Court, the PCT finally acquiesced by notifying the GMC and the Secretary of State for Health of Dr Stephenson's victory.  This is despite a section in their own policy (HR 26) entitled: "The PCT's Duty to Notify".



Devon PCT: Value for money?

The recent Annual Audit letter for 2008-9 has been published on the PCT’s website. The auditor stated “I was unable to obtain sufficient appropriate evidence that Devon Primary Care Trust had adequate arrangements in place to plan its finances effectively to deliver its strategic priorities and secure sound financial health...”


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Devon Primary Trust judgement    Last Updated January 2015    Web Page by IT Solutions    URL: http://www.devonpctjudgement.co.uk