A popular Dumbarton GP was off work sick at his home in Cardross last week suffering from exhaustion and anxiety after a tortuous, five year battle with NHS Greater Glasgow and Clyde Health Board and West Dunbartonshire Council’s Health and Social Care Committee.
Dr David Neilson, right, was vindicated in the fight to clear up the circumstances in which his 2,000-patient practice was wrongly shut down and he was unfairly dismissed.
Such was the respect his patients had for him that more than half of them signed a petition to the Health Board to keep him in post but, disgracefully, this was never passed on to the board by the local council for consideration.
It was also revealed that Levenside Medical Practice, based at Dumbarton Health Centre in Artizan, which applied for and won a competition amongst GPs to take over the staff of Dr David Neilson’s practice, had been unsuccessful in its petition to suspend an Employment Tribunal order requiring it to re-engage the doctor himself.
This was despite the fact that Levenside’s advocate had argued before Lord Pentland, left, in the Outer House of the Court of Session, that no order could be made against it because it was not party to the Employment Tribunal proceedings in which the order was sought. The Levenside petition was refused.
Initially reluctant to discuss the matter, Dr Neilson told me: “I am happy to confirm that the long-running employment proceedings which started between myself and NHS Greater Glasgow and Clyde has now been resolved by agreement between the parties.
“Whilst there remain differing views as to the way my practice was dealt with following the dissolution of my partnership with Dr [Claire] McGonagle, all parties are happy to have been able to bring this long-running matter to an agreed conclusion.”
He added: “One thing that I wish to make clear is that, contrary to communications which were issued by the Board at the time, my decision to dissolve my partnership with Dr McGonagle, which took effect on March 23, 2017, was taken before the Board were aware of the situation that had developed in my practice.
“As a result I could not have, as was said at the time, dissolved my partnership against advice provided by to me by the Board.”
Dr Neilson stressed that he will now continue to practice at a number of local surgeries “and only wish the dispute had never arisen”.
He said: “I had always hoped to come back to my practice and continue to provide care for my former patients but, for reasons I still struggle to understand, that has not been possible.”
Health Board chiefs, chair John Brown and chief executive Jane Grant, pictured right, chose silence and anonymity however before the Board issued the following bland statement to The Dumbarton Democrat:
“NHS Great Glasgow and Clyde can confirm that the employment tribunal which concerned them, Levenside Practice and Dr David Neilson, has now been resolved by agreement between the parties.
“All parties are content to have been able to bring this matter to an agreed conclusion. At no time has Dr Neilson’s professional competence or capacity been in doubt.
“Dr Neilson continues to practice as a GP in a number of local surgeries, providing care to the local population. We wish him well in his continuing career.”
There was no apology.
The Democrat tried to contact Levenside Practice on Monday. However, the lead physician Dr Pourghazi was said to be on leave and Dr Fergus MacLean, who was a witness at one point in the legal proceedings, refused to speak to us. West Dunbartonshire Council’s Health and Social Care Committee, which has a mixture of councillors and unelected lay persons on it, refuses to discuss anything with The Democrat.
Unfairly dismissed
The relevant Employment Tribunal proceedings were initiated by Dr Neilson, who previously been a partner with Dr McGonagle, pictured left, in another medical practice operating from the Artizan health centre.
In March 2017 the practice was dissolved and its staff were transferred to the Health Board. Dr Neilson accepted a fixed term contract that expired in July 2017.
The Health Board invited applications from existing local GP practices to provide primary care medical services to the patients of the dissolved practice with effect from 1 August 2017.
The letter inviting applications for the extra work explained that the contracts of employment of the five members of staff of the Levenside practice would transfer to the successful applicant.
However Dr Neilson was not amongst the members of staff transferred, and Levenside stated that they did not propose to employ Dr Neilson.
In November 2017 Dr Neilson went to the Employment Tribunal claiming he had been unfairly dismissed when his contract of employment was not automatically transferred under TUPE regulations on 31 July 2017.
In his claim, Dr Neilson sought an order for re-engagement “on terms no less beneficial than those which had governed his employment by the Health Board”. Levenside was not party to these proceedings, which were brought against the Health Board.
It was submitted that the Employment Rights Act 1996 provided that an order for re-engagement could be made against a successor of the employer, thus making it unnecessary to add Levenside to the tribunal proceedings.
The Employment Tribunal found that Dr Neilson had been unfairly dismissed following an admission to that effect by the Health Board.
At the remedies hearing, one of the partners in Levenside gave evidence that it would not be practicable for the practice to re-engage Dr Neilson.
However, Employment Judge Lucy Wiseman found against them and that Dr Neilson should be re-engaged by Levenside as a salaried GP working 0.8 full time equivalent, as well as paid arrears by the Health Board.
The Health Board appealed the decision to the Employment Appeal Tribunal, a decision on which had not been made at the time the petitioner’s case was being considered.
Levenside submitted that the tribunal’s order was ultra vires because it had not been party to the previous proceedings. It also claimed that the order breached rules of natural justice and infringed their human rights.
Dr Neilson, who lodged answers to the petition, submitted that Levenside had a right of appeal to the Employment Appeal Tribunal despite not being a party to the original proceedings.
No exclusion of non-parties
In his opinion, Lord Pentland first considered Levenside’s right of appeal, stating: “I consider that the language of [the Employment Tribunals Act 1996] does not exclude an appeal by a non-party. The practice and procedure of the Scottish civil courts are not matters of relevance in the context of construing the statutory provision. The Employment Appeal Tribunal, which has a UK-wide jurisdiction, has its own practice and procedure.”
He added: “The petitioner [Levenside] had a statutory right to institute an appeal against the judgment of the Employment Tribunal. It must be taken to have elected not to exercise that right. The petitioner has not explained why it decided not to do so. It has a real interest in the outcome of the proceedings before the Employment Tribunal in circumstances where it was not a party to those proceedings and the Health Board’s appeal is on different grounds. It seems to me that this is the sort of situation which [is] suitable and appropriate for an appeal by a non-party.”
On the competency of the current petition, he said: “The proposition for which [the petitioner] contended [is] that a party, who has a statutory right of appeal available to it, is entitled to decline to exercise that right and instead apply to the Court of Session for suspension of the decree or order of the inferior court or tribunal.
“In my opinion, that proposition is not supported by the authorities. If it were sound, it would mean that a party could effectively bypass a prescribed statutory avenue of appeal and come directly to the Court of Session (without leave) by way of a petition for suspension or reduction.“
He added: “Such a course would, in my judgment, entail offending against what Viscount Dunedin said in [Adair v Colville & Sons (1926)] should not be done, namely to ‘interfere with the wisdom of the legislature’.”
Lord Pentland concluded: “At the time when it was presented to the court the petition was incompetent because the petitioner had an extant statutory right of appeal against the order which it sought to have suspended.
“The time limit for instituting an appeal has now expired, but it remains open to the petitioner to seek an extension of it. The availability of these statutory mechanisms for challenging the order of the Employment Tribunal renders the petition incompetent in my opinion.”
For these reasons, the petition was refused.
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THE DEMOCRAT LOOKS BACK FROM THE BEGINNING
Patients’ anger over removal of Dumbarton GP
It was under this headline that Shelley Jofre, then BBC Scotland health correspondent, wrote the following on
Patients in Dumbarton have been protesting about the removal of their local GP and the closure of their practice.
NHS Greater Glasgow and Clyde (NHSGGC) wants to put the running of Dumbarton Health Centre out to bids from other GPs in the area.
But almost 500 people have signed a petition in just four days, urging the health board to scrap that plan.
NHSGGC said there were no change to services at present. The health board said patients should should continue to make appointments at the practice in the usual way.
The case comes against the backdrop of a recruitment “crisis” for GPs.
A BMA Scotland survey recently revealed nearly 16% of GP practices in the Greater Glasgow and Clyde area had at least one vacancy for a doctor.
Dr David Neilson has been a GP at Dumbarton Health Centre for 12 years and serves 2,000 patients.
He recently withdrew from his partnership with another GP.
Dr Neilson said he took the advice of the British Medical Association before doing so, but there was a mix-up over the procedures required for this.
NHSGGC [local health board] has now told Dr Neilson that his contract will expire early in July and he will not be allowed to bid to take over his own practice.
Former Conservative councillor Euan Gear, pictured right with the petition which was ignored and who is one of Dr Neilson’s patients, said: “It is quite unbelievable that the health board, through the Health and Social Care Partnership with West Dunbartonshire Council, want to go down this road.
“GP out-of-hours services being provided at present at Vale of Leven Hospital are being cut and moved away to Paisley.
“How then can it possibly be helpful to terminate one doctor’s contract and spread out his work to other practices?
“I know that Dr Neilson has experienced some difficulties in the past with the health board over the arrangements for health service delivery in this area, but that is no excuse to effectively fire him from his job.”
‘Sustainable arrangements’
Campaigners said that if Dr Neilson was forced out of his practice and had to leave the area, one night in seven would be inadequately covered and one weekend in two would be inadequately covered at Vale of Leven.
NHSGGC said the Health and Social Care Partnership (HSCP) had to step in to take over the running of the practice “in order to safeguard patient care, in circumstances where the former partners of the practice could not resolve their differences”.
A spokesman said: “Drs Neilson and McGonagle were offered employment in the practice on a temporary basis at that time to ensure continued GP cover in the practice.
“Both GPs were aware that, following dissolution of the partnership, long-term alternative arrangements would need to put in place.
“West Dunbartonshire HSCP is now seeking to make sustainable arrangements with new GPs to ensure services can continue to be provided to the patients registered at the practice.”
Jackie Baillie, Labour MSP for Dumbarton, has contacted Jane Grant, the new chief executive of NHSGGC, and chairman John Brown about Dr Neilson’s removal.
Ms Baillie said: “My hope is that we can persuade the health board to think again about this. I want them to investigate this further and to reconsider their position in the matter.”
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HOW A GOOD DOCTOR ENDED UP ON THE HEALTH BOARD’S SCRAPHEAP
Dr David Neilson, his wife, Carolyn, and their daughter, Amelia.
Exclusive by Bill Heaney
Cardross GP David Neilson, whose contract at Dumbarton Health Centre was terminated amid huge controversy, was asked to attend an interview for a new post – at Barlinnie Prison in Glasgow.
Despite the fact that more than 1000 of his 2000-patient panel signed a petition to NHS Greater Glasgow and Clyde Health Board to keep their family doctor in post, Dr Neilson was told to report at the prison for interview at 10am on Monday.
At the couple’s home in the hills above Cardross, Argyll and Bute, the doctor’s wife, Carolyn, said: “It would appear that the Health Board is determined to publicly humiliate my husband. He is an excellent doctor who is loved and admired by his patients. David has been in the practice in the Dumbarton and Helensburgh area for the past 12 years and has done nothing to merit the scandalous way he is now being treated.”
She added that her husband had made “am administrative error” three months ago when he ended the contract with his part-time partner, Dr Claire McGonagle. There had been difficulties and disputes between the two GPs and, after taking advice from the BMA, Dr Neilson ended the contract.
One particular dispute, it is alleged, centred on Dr McGonagle wanting Dr Neilson to work fewer sessions and to allow her to train people from the Scottish Ambulance Service, for which she also works, at the practice. Another was that she did not want Dr Fiona Downie, a former partner in the practice, working there as a locum.
Mrs Neilson said: “David’s position was that these changes were not in the best interests of his patients and that Dr Downie would stay. The Health Board have taken advantage of the situation because they don’t like my husband and see him as a threat. The reason they don’t like him is because, in line with his duty as a doctor, he has raised safety concerns in the past. He has also taken steps to ensure they honour certain obligations and criticised them for not following their own policies. They are being vindictive and cruel.”
She added: “They see him not as a good doctor but as a whistle-blower and an irritant because he flagged up what he viewed were practices within the local health service which he considered unsafe for the patients.”
Dr Neilson’s intention had been to continue to operate the contract on his own, assisted by Dr Fiona Downie, widow of the late Dr Alistair Boyd, until he found a new medical partner. But the West Dunbartonshire Social Care and Health Partnership and NHS Greater Glasgow and Clyde Health Board said this was unacceptable.
Keith Redpath, Chief Officer of the HSCP, moved swiftly and put the practice contract out to tender, inviting GPs from other practices in Dumbarton Health Centre to bid for it. A dismayed Dr Neilson was told he would not be allowed to bid for his own practice. Despite this setback, however, he agreed to provide cover until August 1 when new arrangements would be in place, while Dr McGonagle said she would not be available for cover.
“The health and welfare of my patients had to take precedence over any personal concerns,” said Dr Neilson, who is 56.
Eventually the GP said he was overburdened and becoming stressed running the practice on his own – “it was killing me,” he said – and sought to have a locum, but the HSCP said it would be “inappropriate”. He has now been signed off work by his own GP for the next two months. Patients, who were upset and angry at this turn of events, and who found getting appointments and prescriptions ever more difficult, launched an on-line petition to save Dr Neilson’s job. This attracted 1200 signatures and was presented to the HSPC by former Conservative councillor Euan Gear.
Board chairperson John Brown and chief executive Jane Grant declined to attend the petition handover. Both the chairperson and the CEO have declined to comment, although Keith Redpath said that by not following precisely the Health Board rules laid down for partnership dissolution Dr Neilson had been “the author of his own misfortune”.
He admitted however that no politicians and only officials had been involved in the decision to dispense with Dr Neilson’s services.
“We have absolutely no complaint about Dr Neilson’s qualities as a doctor,” Mr Redpath added.
Carolyn Neilson said that her husband had declined to attend the Barlinnie job interview and that he would be going to his surgery in Dumbarton on Monday as usual.
Patricia Morrison, the Health Board’s Primary Care Support manager based in Glasgow, e-mailed Dr Neilson asking what items of furniture in his surgery are his, and what he was removing. Then on Friday she wrote to him again saying that the neighbouring Levenside Practice, which had won the tendering process to take over his contract, might want to buy some of it. At the beginning of last week, Dr Neilson arrived at the health centre to find another doctor’s nameplate on the door of his room.
Dr Saied Pourghazi is one of six GPs in Levenside Practice who have taken over Dr Neilson’s practice. The others are Dr Fergus MacLean, Dr Chris Tervit, Dr Fiona Maxwell Dr Katie Mitchell and a new recruit, Dr Parvinder Dhillon.
Mrs Neilson said Dr Pourghazi had not been in touch with her husband and had last Wednesday, together with various Health Board managers, held a meeting with her husband’s staff.
Carolyn Neilson said: “David was not invited and Dr Pourghazi and his partners have made no contact with David. Some doctors appear to be deliberately avoiding him.”
Keith Redpath’s successor as chief officer of the HSCP, Beth Culshaw, notified Dr Neilson about the Barlinnie appointment on Thursday last.
Health Secretary Shona Robison; Vale of Leven Hospital; Beth Culshaw, of the Health and Social Care Committee, and Barlinnie Prison in Glasgow, where Dr Neilson, after being deprived of his Dumbarton practice, was invited to go for a job interview.
But Mrs Neilson said: “After consideration he has decided he’s not going. He has no idea what to expect when he goes into the Health Centre on Monday as nobody has told him.
“David, I would say, is in a very poor state. He is exhausted and emotionally drained. He has been treated appallingly. His own GP has signed him off work for eight weeks with stress.”
Jackie Baillie, the Labour MSP for Dumbarton and Helensburgh, has pleaded with Shona Robison, the Health Secretary, and First Minister Nicola Sturgeon, to intervene and investigate the case, but there has been no response from them.
The Neilsons have a 14-year-old daughter, Amelia.
Carolyn Neilson said: “Our life has been turned upside down and our whole future is in jeopardy. David’s patients have been deprived of his services, yet we have been met with a wall of silence from the people who are supposed to be responsible for our health service.
“The Barlinnie Prison interview offer is cruel, unbelievable and humiliating.”
First Minister Nicola Sturgeon and Dumbarton MSP Jackie Baillie.
- Bill Heaney writes: Since this report was written I went to Edinburgh to meet the Health Minister, Shona Robinson, who appeared to accept that Dr Neilson had been dealt with unfairly and gave me a commitment that the case would be passed back down the line where steps would be taken to rectify matters. Since then little or nothing has transpired to change matters. Dr Neilson has had a meeting with Beth Culshaw, the new chief officer of the HSPC, and an HR officer, Tom Quinn, but all that has happened is that he has been directed to a list of (not very attractive) job opportunities on the Health Board HR website.