In Dr Ulrich Stein v Central Lancashire PCT, the tribunal considered an appeal against the PCT’s refusal to accept an application to join the performers list. The doctor’s application had been refused on the ground that his inclusion would be prejudicial to the efficiency of the service. In the tribunal’s judgment they highlighted that there is a distinction between powers of removal on grounds of prejudice to efficiency and the power to refuse admission on grounds of prejudice to efficiency.  

Regulation 6(1)(e) of the NHS (Performers Lists) Regulations 2004 (the Regulations) provides that refusal to admit may be made if there are “any grounds for considering that admitting [an applicant] to [the] performers list would be prejudicial to the efficiency of the service”. The tribunal explained that this does not require a PCT to show that admission of the applicant would be prejudicial; the PCT merely has to demonstrate that there are grounds for considering that admitting the applicant would be prejudicial.  

This can be contrasted with the test for removal under regulation 10(4) which requires evidence that the performer’s continued inclusion would be prejudicial to the efficiency of the service. It is clear therefore that the test for refusal of admission on the ground of prejudice to efficiency sets a lower threshold for PCTs than the test for removal on the ground of prejudice to efficiency.

The tribunal, mindful of the fact it need not come to a conclusive view of whether there would be prejudice to efficiency of the service, concluded that evidence showed that there were real concerns about the adequacy of the doctor’s record keeping, and that this was sufficient to meet the lower threshold of regulation 6(1) and so concluded that the doctor’s application for inclusion should be refused. The tribunal did not consider whether Dr Stein should be conditionally included and simply directed that he not be included in the PCT’s performers list.  

This case helpfully illustrates an important difference between the test of “prejudice to efficiency” applicable in admission and removal cases and explains that PCTs face a less onerous task refusing admission on the basis of prejudice to efficiency than they do in justifying removal.