Medical Performers List – Primary Health Lists: Law and Hearings
Medical Performers List Legal Advice and Representation
Doctors Defence Service advises and represents doctors in Medical Performers List proceedings in England and Wales. Medical Performers List law includes matters such as: contingent removal from the list, conditional inclusion on the list, suspension applications, general inclusion applications, applications to remove GPs and Ophthalmic Medical Practitioners from a Performers list.
Doctors Defence Service provides legal advice to doctors in relation to all aspects of Performance List law and First Tier and Upper Tier tribunal appeals, (and judicial reviews, where appropriate).
Below, you will find references to the main Medical Performance List, or Primary Health Lists, legislative materials, including statutory instruments, case law and NHS guidance notes.
Decisions are first made by Patient Advisory Group (PAG), which can then be reviewed further at a Performers List Decision Panel (PLDP) meeting, and any decision from there can be appealed to the First Tier Tribunal (FTT) Lists.
The main legislative provisions relating to Primary Health Lists are contained in a statutory instrument called: The National Health Service (Performers Lists) (England) Regulations 2013 – which sets out the procedures for:
a) the investigation of concerns relating to performers;
b) the suspension of a doctor from the list;
c) the imposition of conditions;
d) the inclusion and removal of performers.
The 2013 regulations replace the National Health Service (Performers Lists) (England) Regulations 2004.
An appeal from panel decisions now lies to the First Tier of the Care Standards Tribunal. Alternatively, there may be an issue that requires judicial review.
Read the Performer List Policies and Procedures
and FAQs (pdf) about process, and the Toolkit (pdf) for managing concerns. Further, see the Perfomers List Process – Summary Document (pdf), and the Policy and Standard Operating Procedure policy documentation.
For examples of cases, view: Recent Tribunal Decision in Performers List Cases
See also: Managing Performance Concerns
(See also our National Disqualification Information Page to read more about the procedure and the right of a doctor to challenge the PCT’s application.)
Duty to Notify of Regulatory Investigations and Criminal Matters
In England, pursuant to Paragraph 9 of the The National Health Service (Performers Lists) (England) Regulations 2013 a doctor who is subject to GMC investigation or criminal investigation (or who is convicted or cautioned or similar) must inform the NHS within 7 days. Similar regulatory provisions apply across the other countries of the UK.
Appeals: Where an appeal lies to the First Tier Tribunal, the appeal is a redetermination, or de novo, or fresh hearing.
An appeal lies from the PLDP panel to the First Tier Tribunal.
Conditions
Are there any workable conditions which could be put in place to prevent any prejudice to the efficiency of services, pursuant to Regulation 10(1)(b) of the 2013 Regulations? NHSE has published guidance on conditions that might be imposed but conditions might also be formulated in ways that protect the efficiency of the service, while enabling a doctor to practice.
Insight
What level of insight has the doctor shown?
Remediation
What remediation has the doctor carried out?
Apology
Was an apology necessary? Has the doctor apologised?
Suitability Is Removal from the List Justified?
Prejudice Is removal justified to prevent prejudice to the Service?
Legislation: By way of 14 (3) of the 2013 regulations:
The Board may remove a Practitioner from a performers list where any of the following is satisfied – …
(b) the Practitioner’s continued inclusion in that performers list would be prejudicial to the efficiency of the services which those included in that performers list can perform (“an efficiency case”);
(d) the Practitioner is unsuitable to be included in that performers list (“an unsuitability case”).
Facts in Issue
The Respondent bears the burden of proof where any facts are in issue. The standard of proof is the balance of probabilities, being a lower standard than the criminal standard of proof.
The exercise of the discretion under Regulation 14(3) requires a judgment to be made by the decision-making panel. The NHS bears the burden of persuasion on such matters.
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OLD LAW (with possibly some relevance:
National Health Service (Performers Lists) Regulations SI 2004 No. 585 (Consolodated Provisions 2010) [View Performers List Statutory Instrument (External link)] Statutory procedure for doctors’ cases in England: inclusion, suspension (for up to six months in most cases, with an extension beyond this being possible if approved by Family Health Services Appeal Authority (FHSAA)), contingent removal. A panel may also make a recommendation for a national disqualification order. The PCT must act to protect the public or otherwise act in the public interest. A suspension is a neutral act but should only be used where there is a case to answer, which includes there being compelling evidence of culpability, or seriously sub-standard performance or lack of competence. A suspension can be longer than six months where a regulatory or criminal body is investigating, or in cases where a decision has been made (to remove or contingently remove) and it is necessary to suspend, until an appeal is concluded. If the Trust does not apply for an extension to the FHSAA within the six months, the suspension lapses. A doctor may be permitted (by the panel Chair) to question witnesses and examine documents within suspension hearings and substantive hearings. However, the Malik judgment calls into question the appropriateness of this approach during interim hearings [18]. Further, in any appeal the FHSAA (with power to hold a full rehearing) is limited to the disposal powers that the PCT enjoys, and the FHSAA cannot over-rule a mandatory ban or hear an appeal from a suspension. A judicial review of any unlawful decision may be made to the High Court, with permission.
National Health Service (NHS) (Performers Lists) (Wales) Regulations SI 2004 [View Welsh Law Performers Statutory Instrument (External Link)]. Statutory procedure for cases in Wales, with similar procedures to those in England.
See also: National Health Service (Performers Lists) Amendment Regulations 2010 (2010 No 412) [View Performance List Amendments (external link)]
A doctor who is included on the Performers List must still separately apply for a contract with a Trust. This is pursuant to the National Health Service (General Medical Services Contracts) Regulations 2004 (S.I. 2004/291) – where a doctor is suspended on an interim basis, a proportion of the doctors’ remuneration will continue to be paid. A doctor (medical practitioner) cannot contract with the NHS unless on the Performers List.
See also Family Health Services Appeal Authority (Procedure) Rules 2001 [View FHSAA Rules (external link)] which govern the way the FHSAA must conduct itself in relation to matters / appeals arising from Performance Lists hearings. See section 49M of the National Health Service Act 1977. [View NHS Act 1977 (external link)] See also: The Family Health Services Appeal Authority (Procedure) (Amendment) Rules 2002 The FHSAA responsibilities have subsequently been transferred to the tribunal service: The Tribunal Procedure (First–tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 – SI 2699/2008 with amendments made by S.I. 2009/1975 and further Consolodated Procedural Rules (2012).
Guidance Notes:
(1) The NHS has produced some guidance notes. Beware that they precede some of the more recent legislative amendments. Neverthless, much of the commentary remains relevant to current Performers List hearings.
(2) The NHS has also produced further guidance notes to accompany the 2008 amendments, which mostly cover the the addition of opthalmic medical practitioners to the performance lists. Note that the 2010 and other amendments may have made some modifications.
Case Law:
Relevant Case law (judicial review challenges brought by doctors and Trusts):
Waltham Forest PCT and Secretary of State for Health v R (Malik) CA [2007] EWCA Civ 265 [View Full Law Report (External Link)] Appeal Case – This case determined that being on a list is not a Article 1 Protocol 1 Human Rights Convention possession and therefore not a protected right. The case did not determine the lawfulness of the Performers List revocation procedure adopted by the Trust, as the Trust conceded that the first instance decision (in the doctor’s favour) should stand.
R (Malik) v Waltham Forest PCT & Secretary of State for Health (interested party) [2006] EWHC 487 (Admin) [View Full Law Report (External Link)] – This case determined that the Trust acted unlawfully in its approach toward the doctor. Principally, a Trust, if it makes a procedural decision (relating to a suspension) that is wrong in law, cannot impose a suspension of greater than six months, cumulatively. Also, it was not permissible to rely on new allegations at an interim hearing where there had been no prior notice. These matters should have been excluded by the Chair but they were not excluded and appeared to have been taken into account by the panel. [JR was held to be the appropriate way to challenge a decision of such a panel, and not a Part 8 application. Also, judicial doubt expressed that Article 6 covers Performer List interim orders because such hearings are not determinative of a doctor’s rights, as it is not a final order, and the doctor continues to receive remuneration. But: cf. subsequent judgments (such as Wright and Secretary for Health (POVA)].
R (SS) v Knowsley NHS Primary Care Trust (Defendant) The Secretary of State for Health (Interested party) and R (Ghosh) v Northumberland NHS Care Trust (Defendant) The Secretary of State for Health (Interested party) [2005] EWHC 2830 (Admin) [View Full Law Report (External Link)]
Discrimination Claims against the NHS – Performers Lists
A claim for racial or other discrimination (such as sex discrimination, disability discrimination) against NHSE, in its operation of the Performers List, would likely fall to be lodged in the Employment Tribunal (ET).
In the case of Michalak v General Medical Council and others [2017] UKSC 71 the UK Supreme Court determined (by agreement of the parties) that the General Medical Council (GMC) was a qualifications body within s54. (November 2017). It went on to determine that the right of judicial review did not preclude a claim being lodged in the ET.
As the NHSE Performers List carries out similar functions to those of the GMC, in controlling which doctors can be on the list, and whether they should be removed from the list, or restricted in some way, the Supreme Court authority is of significant relevance and a persuasive precedent.
Published Cases
For more information about Doctors Defence Service Performance List legal representation, contact us to speak to one of our specialist lawyers. Telephone: 0800 10 88 739