PUBLIC RECORD. Record of Determinations. Medical Practitioner: Dates: 23/07/ /08/2018 and 15/11/ /11/2018. GMC reference number:

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1 PUBLIC RECORD Dates: 23/07/ /08/2018 and 15/11/ /11/2018 Medical Practitioner s name: GMC reference number: Dr Ibrahim ALGAROUSHA Primary medical qualification: Type of case New - Misconduct Vrach 1998 St Petersburg State Medical University Outcome on impairment Impaired Summary of outcome Conditions, 6 months. Review hearing directed Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Mr Nathan Moxon Mrs Jennifer Portway Dr Shazad Amin Tribunal Clerk: Ms Elly McQuinn Attendance and Representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Present and represented Mr Neil Sheldon, Counsel, instructed by the MDDUS Mr Peter Atherton, Counsel (23/07/ /08/2018) Mr Peter Horgan, Counsel (15/11/ /11/2018) Attendance of Press / Public In accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 the hearing was held in public. 1

2 Overarching Objective Throughout the decision making process the tribunal has borne in mind the statutory overarching objective as set out in s1 Medical Act 1983 (the 1983 Act) to protect, promote and maintain the health, safety and well-being of the public, to promote and maintain public confidence in the medical profession, and to promote and maintain proper professional standards and conduct for members of that profession. Determination on Facts - 31/07/2018 Background 1. Dr Algarousha qualified in Russia in 1998 and after relocating to the United Kingdom, registered with the General Medical Council ( GMC ) in Prior to the events which are the subject of the hearing Dr Algarousha completed various Senior House Officer Posts, and commenced his GP training although he did not finish such training and returned to undertaking locum posts across various hospitals. At the time of the events Dr Algarousha was practicing as a Clinical Fellow at Northwick Park Hospital, whilst also undertaking work as a Middle Grade Locum at Kings George s Hospital Accident and Emergency Department where the alleged events occurred. 2. Patient A, XXX, was severely autistic and had learning difficulties. She was blind in one eye and had restricted vision in the other. Her communication was limited to a few words and phrases. She lived in Perrymans Care Home where she was looked after by carers. 3. The allegation that has led to Dr Algarousha s hearing can be summarised as concerns arising from Dr Algarousha s treatment of Patient A where it is alleged that on 23 March 2012, he failed to provide good clinical care to Patient A including failing to assess her capacity to consent to or refuse assessment and/or investigations and/or treatment and a subsequent failure to adequately assess and/or investigate and/or treat. 4. The referral to the GMC was further to HM Coroner s inquest into the death of Patient A in The Outcome of Applications Made during the Facts Stage 5. The Tribunal granted the GMC s application, made pursuant to Rule 17(6) of the General Medical Council (Fitness to Practise Rules) 2004 as amended ( the Rules ), that, paragraph 2 of the Allegation be deleted. The Tribunal s full decision on the application is included at Annex A. 2

3 The Allegation and the Doctor s Response - The Admitted Facts 6. At the outset of these proceedings, through his counsel, Mr Neil Sheldon, Dr Algarousha made admissions to some paragraphs and sub-paragraphs of the Allegation, as set out below, in accordance with Rule 17(2)(d) of the Rules. In accordance with Rule 17(2)(e) of the Rules, the Tribunal announced these paragraphs and sub-paragraphs of the Allegation as admitted and found proved. That being registered under the Medical Act 1983 (as amended): 1. On 23 March 2012 you failed to provide good clinical care to Patient A in that you failed to: a. assess the patient s capacity to consent to or refuse assessment and/or investigations and/or treatment; To be determined. b. recognise that the patient lacked capacity to consent to or refuse the appropriate assessments and/or investigations; To be determined. c. assess and/or investigate and/or record the patient s: i. heart rate, To be determined. ii. presence of a radial pulse, To be determined. iii. oxygen saturation, To be determined. iv. respiratory rate, To be determined. v. peripheral perfusion, Admitted and Found Proved insofar and limited to the failure to record. vi. sweating, Admitted and Found Proved insofar and limited to the failure to record. vii. signs of dehydration, Admitted and Found Proved insofar and limited to the failure to record. viii. chest, To be determined. ix. abdomen, Admitted and Found Proved insofar and limited to the failure to record. x. bowel sounds, To be determined. xi. Urine, To be determined. xii. Blood, To be determined. xiii. x-rays; To be determined. 3

4 d. consult with appropriate colleagues for advice for assessing, investigating and treating the patient; To be determined. e. attempt to consult the patient s next of kin about her care; To be determined. f. seek appropriate consent to undertake the investigations and treatment which were required in the patient s best interests; To be determined. g. make sufficient inquiry as to the patient s recent and/or past medical history; To be determined. h. make sufficient inquiry about the patient s: To be determined. i. social circumstances, and/or ii. usual behaviours, and/or iii. accommodation, and/or iv. arrangements for her care; i. ascertain the availability of the patient s medical records; To be determined. j. consider and/or record a diagnosis and/or any differential diagnoses; Admitted and Found Proved insofar and limited to the failure to record. k. admit the patient for assessment and/or investigation and/or treatment; To be determined. l. assess and/or examine the patient while she was sleeping and/or before she was discharged. To be determined. 2. In a discharge letter dated 24 March 2012 to Patient A s GP you: a. failed to communicate the difficulties in assessing Patient A which rendered arriving at a diagnosis challenging; b. erroneously indicated that blood tests had been carried out; c. failed to state that no investigations had been carried out; d. failed to state that gastroenteritis was a speculative diagnosis. 4

5 Amended pursuant to Rule 17(6) And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct. Factual Witness Evidence 7. The Tribunal received evidence on behalf of the GMC in the form of witness statements from the following witnesses who were not called to give oral evidence: Statements of practising doctors at the Palms Medical Centre, Patient A s GP surgery; Statement from Ms B of Perrymans Care Home, Patient A s carer, dated 8 July 2014; Statement from Mr C, Registered Manager at Perrymans Care Home during Patient A s residence, dated 22 June 2014; Statements of Ms D, Patient A s sister, the first undated and the second dated 23 March 2018; Hospital notes regarding Patient A s visit to Kings George s Hospital Accident and Emergency ( A & E ) Department dated 23 March 2012; Hospital discharge letter addressed to the Palms Medical Centre from King George s Hospital regarding Patient A s visit dated 24 March 2012; Various correspondence between the GMC and Dr Algarousha s legal representatives. 8. Those documents show that Patient A had regularly been taken by her carers to her General Practitioners surgery complaining of vomiting and diarrhoea. She was often difficult to examine as she would scream and resist. She attended the surgery on 22 March 2012 as she had been vomiting since the previous day. As her symptoms did not abate she was taken by her carer, Ms B, to the A & E Department the following day. 9. The triage notes detail that she was registered at 20:01 on 23rd March 2012 and was triaged at 20:23. The triage nurse recorded the following: H/o on and off abdominal pain and vom for 2 days, abdomen is distended, severely autistic and learning disability, screaming in triage, not allowing to do vital signs, agitated, carer said normal for patient, rubbing and tapping her abdomen, looks in discomfort on and off. PMH blind L eye partially sighted R eye. 10. Patient A was examined by Dr Algarousha at 22:10 and he recorded that she had been suffering from vomiting and diarrhoea for a day and abdomen pain. Her learning difficulties were again noted in the records that he prepared. It is detailed 5

6 that on examination she was very uncooperative. Her abdomen was assessed by Dr Algarousha who noted: mildly distended Tense Screams on palpation Possible +ve guarding and rebound 11. Dr Algarousha planned for blood tests and x-rays to be undertaken and noted: pt refused bloods and xr was refused as pt was incooperative 12. These tests were therefore not undertaken. 13. Within his notes he detailed: Plan allow to drink water if no vomiting pt could go home 14. That is the final note upon her records. She was discharged at approximately 2:00am on 24 March 2012 with a diagnosis of Gastro Enteritis, Gastric, as detailed in her discharge letter of the same date. 15. Dr Algarousha provided his own witness statements dated 9 July 2018 and 24 July 2018, as well as an admissions schedule dated 8 May Dr Algarousha also gave oral evidence at the hearing. 16. In his witness statement Dr Algarousha states that when he first saw Patient A she started screaming and presented as distressed in his presence. He asked her carer if it would be possible to take a history from Patient A and she replied that it would not. He therefore asked the carer to step outside the cubicle to take a history from her. The carer told him that this was the first occasion she had brought Patient A to the A & E Department to investigate her symptoms, however she had seen her GP on the previous day. He detailed that he asked the carer if Patient A was on medication and she told him that she was not. He then went into the cubicle and attempted to examine Patient A. He tried to palpate the abdomen, although it was difficult to perform the examination due to Patient A s distress. The abdomen looked mildly distended and seemed tense. He clarifies that the note he made in his contemporaneous clinical record of possible +ve guarding and rebound required clarification and that the guarding he observed was voluntary as though Patient A was reacting to his examination rather than being in severe pain. As far as he could tell there was no involuntary guarding. He details that during the examination he considered whether Patient A was suffering from peritonitis, but concluded it to be very unlikely. This was because she only seemed to scream when he approached her, which was not consistent with constant pain associated with peritonitis. Having 6

7 considered the history and finding of his examination, he concluded that it was highly likely that Patient A was suffering from acute gastroenteritis. He planned for Patient A to have blood tests and x-rays but she would not tolerate having a blood sample taken and x-rays could not be taken due to lack of patient cooperation. 17. Dr Algarousha details that at no point during my dealings with Patient A did I consider it necessary to undertake an assessment of her capacity. He details that he did not know whether she was capable of understanding information relevant to decisions regarding her treatment, or the extent to which he could obtain or analyse such information. Nor was he in a position to assess the extent to which she was able to communicate effectively by alternative means. He did not believe it to be case where a Consultant s input was necessary. He was confident in his diagnosis of gastroenteritis. In light of that, he decided to recommend a period of fluid challenge, involving Patient A taking small sips of water approximately every five minutes of approximately 10 millilitres increasing as fluids were tolerated. He instructed the carer to give Patient A regular sips of water. He kept an eye on her and was told by the carer that Patient A tolerated water well and there had been no further episodes of vomiting. By this stage Patient A was calm and appeared to be either asleep or resting quietly. She was therefore discharged. 18. In his oral evidence, Dr Algarousha clearly stated that he did not need to assess Patient A s capacity. He accepted that he had originally wanted to undertake blood tests and x-rays but Patient A had not allowed this. He explained that if I had wanted to do them, then I would have checked her capacity. When he was asked whether he recognised Patient A lacked capacity he replied it did cross my mind at the back of my mind but then added that he did not need to go down the capacity route and reasserted that this case did not require the assessment of capacity. 19. In relation to the administration of the fluid challenge Dr Algarousha stated in his oral evidence that he had told the nurse what was required. She later informed him that the patient had not cooperated and so he then asked the carer to administer the water. The Tribunal noted that reference to a discussion with the nurse was not detailed within Dr Algarousha s written statement. 20. In relation to the discharge of Patient A Dr Algarousha stated that he attempted to examine her again before discharge but was unable to because of the amount of distress she was exhibiting. He then stated that he asked the carer if he could examine Patient A but because the carer said that Patient A was settling and did not seem to be in too much pain it was agreed that he would not physically examine her so as not to upset her. When asked to clarify whether Patient A was still showing signs of distress at the point of discharge Dr Algarousha stated that she was not completely settled and was screaming intermittently. He also confirmed that whilst he considered a re-examination as necessary prior to discharge he did not push for it because the carer discouraged him from doing so. 7

8 21. Overall, Dr Algarousha was of the opinion that his failures were limited to clinical record keeping only and he had performed an adequate examination as detailed in his witness statement and oral evidence. He maintained that Patient A did not require a capacity assessment since he did not try to undertake any procedures that would have required this. He added that he obtained consent from her carer who agreed that he should examine Patient A. Expert Witness Evidence 22. The Tribunal also received evidence from two expert witnesses. Each expert provided their own individual reports, as well as a jointly prepared report dated June Dr E 23. Dr E, Consultant in Emergency Medicine and Lead Consultant for NHS Scotland s Emergency Medical Retrieval Service, provided three written reports and was called by Mr Atherton on behalf of the GMC to give oral evidence at the hearing. In his initial report, dated June 2016, he concluded that the standard of Dr Algarousha s investigation, his failure to document a differential and final diagnosis and his failure to admit Patient A were elements of care that fell below the expected standard. He detailed that the standard of history obtained, the patient examination, the failure to seek advice from colleagues and the failure to contact her next of kin were elements of care that fell seriously below the expected standard. 24. Within his supplemental report dated 10 February 2017, he amended his conclusions to the extent that he now believed that the standard of Dr Algarousha s investigations fell seriously below the expected standard of care. 25. Dr E gave oral evidence in which he maintained his conclusions. He asserted that the standard of examination upon Patient A had been unsatisfactory and in fact it was unsafe to have discharged her. He stated that it was clear that she did not have capacity to refuse x-rays and blood tests and that a capacity assessment should have been undertaken. She should have been given opiates for pain relief that would have calmed her or alternatively could have been sedated with benzodiazepines to permit appropriate examination and/or investigations. He accepted that sedation or administering opiates would have required restraint by two people whilst a third administered the sedative or pain relief by injection or through her nose. 26. Dr E opined that the presence of guarding and rebound is consistent with serious abdominal pathology, such as peritonitis, and that further assessments should have been undertaken to exclude that. He conceded that in hindsight Patient A was probably not suffering from peritonitis and agreed that a diagnosis of 8

9 viral gastroenteritis was reasonable, and that Dr Algarousha s failures did not ultimately cause undue suffering or contribute to her death. Mr F 27. Mr F, Consultant in Accident and Emergency Medicine, Examiner for the Royal College of Emergency medicine, PLAB Examiner for the GMC and Performance Assessor for the GMC, provided a written report dated 30 April 2018, and was called by Mr Sheldon on behalf of Dr Algarousha to give oral evidence at the hearing. He detailed that the clinical care, having considered and accepted an earlier draft version of Dr Algarousha s statement dated 9 July 2018, in all of the circumstances was appropriate. Dr Algarousha s diagnosis of viral gastroenteritis was reasonable and it was unlikely that Patient A was suffering anything more serious as she had fallen asleep before discharge which was inconsistent with the type of constant pain seen in peritonitis. Dr Algarousha s only failure was his failure to make adequate records, which, he concluded fell below, but not seriously below, expected standards. 28. Section 1(2) of the Mental Capacity Act 2005 details that a person must be assumed to have capacity unless it is established that he / she does not have capacity. Section 3(1) details that a person is unable to make a decision for himself if he is unable- (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means). 29. Mr F concluded in his written report the following: It would not have been possible for Dr Algarousha to have carried out any capacity test on the patient to determine whether the patient was able to consent to the treatment or investigation. Patient A was not able to communicate due to underlying autism and learning difficulty. 30. He later detailed: I am of the opinion that a mental health assessment under the Mental Capacity Act 2005 would not have been performed in the circumstances of Patient A as there was nothing in the case of Patient A which would have 9

10 justified the very serious step of providing treatment without consent as it was not applicable and secondly there was no facility for it to be done as it would require the input of several experts to make such an assessment. The clinical condition described by Dr Algarousha by the carer was a straight forward acute viral gastroenteritis and there would have been no need to have performed a mental capacity assessment I believe that it would have been most inappropriate to have restrained the patient to have investigations and tests carried out. This, in my opinion, would have caused her unnecessary distress. 31. Within the joint report, Mr F stated: When Dr Algarousha requested blood tests and X-rays he had presumed capacity. This was correct as capacity should always be presumed to exist. I believe that even if capacity was attempted it would not have been possible. Patient A s underlying condition was such that she would not have met the four elements described above. This means that Patient A would have lacked capacity 32. Within his oral evidence however he conceded that it would have been clear from the outset that Patient A did not have capacity to consent or refuse treatment. He also conceded that the approach recommended by Dr E involving restraint and sedation was an equally appropriate course of action to the more conservative approach taken by Dr Algarousha and one that he supported. The Tribunal s Approach 33. The legal advice given by the Legally Qualified Chair, as approved by counsel for the parties, was as follows: a) The GMC has the burden of proving each aspect of the allegation upon the civil standard, which is upon the balance of probabilities. The GMC must establish that it is more likely than not that facts occurred. b) Both parties have relied upon expert evidence. There has been no challenge to Dr E s or Mr F s expertise in emergency medicine generally although Mr Atherton has, in closing submissions, challenged Mr F s understanding of the Mental Capacity Act Unlike lay witnesses, experts may give evidence of opinion. It is a matter for the Tribunal to consider whether a witness has suitable expertise to give opinion evidence. However, where an expert does give such evidence the Tribunal remains the ultimate arbiter of matters about which an expert has testified, as it is with all the evidence before it. The Tribunal is not bound to accept an expert s opinion if there is a proper basis for rejecting it and if they do must give reasons and record in writing. The 10

11 Tribunal s determination of facts must be based on the evidence as a whole, of which the expert opinion evidence and opinion forms only a part. c) The bundle contains hearsay evidence, which includes medical notes and statements drafted by people who have not attended the proceedings to give evidence. For example, the Tribunal has been told that Patient A s carer cannot be located. Hearsay evidence is admissible in these proceedings but the Tribunal must consider the weight, if any, to assign such evidence. d) When considering hearsay evidence the Tribunal must consider the extent to which the evidence is agreed or disputed. The source of the evidence should be identified and the Tribunal should consider whether the witness was independent or may have had a purpose of their own or another to serve. The Tribunal must also consider the reliability of the evidence and should identify any mistakes or inconsistences found in their evidence. There has been no opportunity to see the sources of disputed hearsay evidence tested under cross-examination, for example as to accuracy, truthfulness, ambiguity or misperception, and how the witness would have responded to this process. It may be that a witness has not addressed an issue in their statement that they may have been questioned upon at this hearing. e) The Tribunal has been told that Dr Algarousha has never previously been subject to a complaint to the GMC or GMC proceedings. He is therefore of previous good character. This is undermined somewhat by his admissions in this case but it should be borne in mind that his admissions are limited to failure to keep appropriate records rather than a failure to adequately treat Patient A. He is entitled to have his good character taken into account in two ways when considering the allegation. Firstly, in relation to the likelihood that he did what is alleged, and secondly, when considering his credibility as a witness. f) Good character is not a defence to the allegation and when considering evidence of the doctor s good character, the weight to be placed on that evidence is a matter for the Tribunal. g) In summary, it is for the Tribunal to determine which evidence assists in discharging its duties to make findings and the weight to be given to that evidence. Decisions must be based upon the evidence alone and not speculation. Reasons for decisions must be outlined in writing. 11

12 h) The Tribunal is reminded to consider the version of Good Medical Practice that was in force in March 2012, which is the 2006 version, and not the most recent version that was published in The Tribunal s Analysis of the Evidence and Findings 34. The Tribunal first considered whether the evidence received during the proceedings was reliable. 35. The Tribunal found Dr E to be a credible and reliable witness, whose oral evidence was consistent with his written reports. He had amended his conclusions between his initial report and supplemental report and the Tribunal was provided with the correspondence between himself and the GMC in which he was asked to clarify his conclusions. That correspondence also details that the GMC had cut and paste contents of s from him in order to draft his first supplemental report for him which he then reviewed and signed. The Tribunal did not consider the request to clarify conclusions to be improper per se. There was no impropriety intended in the GMC drafting his supplemental report but it was extremely poor practice and unnecessary in all of the circumstances. An instructing solicitor drafting a report for an expert to approve, even where his comments in s have been cut and paste into the report, is irregular and inappropriate. However, in all the circumstances, the Tribunal was satisfied that the contents of Dr E s supplemental report and his oral evidence reflected his genuine opinion, uninfluenced by those that instructed him. 36. Whilst Mr F is a highly experienced expert in the field in which he gave evidence, he demonstrated a significant lack of understanding of the Mental Capacity Act, specifically in the paragraphs of his report highlighted above and in oral evidence. His assertion that it would not be possible to assess Patient A s capacity because of her lack of communication skills was plainly wrong as was his assertion that Dr Algarousha would not have been able to assess capacity without the input of other professionals. Further, whilst Mr F had stated in his written evidence that it would not have been possible to assess capacity, he conceded in his oral evidence that it was clear from the outset that she did not have capacity. He was also inconsistent between his written report and his oral evidence as to whether it was appropriate to sedate her. 37. The Tribunal considered Dr Algarousha s written and oral evidence. In his oral evidence he stated that Friday evenings are busy but could not recollect whether this particular Friday was any busier than normal. As such he submitted that he was distracted that evening by a string of clinical cases to the extent that he did not get the opportunity to complete his clinical records for Patient A during the rest of his shift. He could not recall the specific reason on this occasion why his clinical records were incomplete but did highlight that on occasions records could not be found because they have been removed from the department and taken to reception upon a patient s discharge. He asserted that his contemporaneous clinical records do not 12

13 reflect the actions that he took in relation to Patient A and he provides further details of events in his witness statement. However, the Tribunal was not satisfied that his witness statement is an accurate reflection of events. It noted that save for the limited contemporaneous clinical records he did not seek to put into writing the events of the night until 2014, some two years later, when he drafted a report for the coroner. That report lacks much of the detail that is in his 2018 statement. The first time that he reduced into writing precisely what he did in relation to Patient A was six years after the event. Whilst he asserts that he has a good memory about this case, this assertion was undermined when he was asked specific questions about the evening of 23 March 2012, such as his inability to recollect whether the department was any busier than a normal Friday night and which nurses he spoke to about administration of the fluid challenge. 38. Further, regardless of whether the department was busy the Tribunal was satisfied that, had Dr Algarousha s witness statement been an accurate reflection of events of that night, then more detailed notes would have been prepared, during the six hours Patient A was in the A & E Department, subsequently later in his shift or at the end of his shift. Important information, such as whether Patient A was on medication, the fluids that she took before discharge and the clinical basis for discharge, is not included. The Tribunal was therefore satisfied that the clinical records, and not Dr Algarousha s subsequent statement, are a truer reflection of the standard of clinical care that he provided to Patient A. 39. The Tribunal assigned no weight to the witness statement of Ms B. It was noted that the statement was prepared two years after events and does not correspond with her handwritten notes taken on the day. Further, it was drafted for the coroner and so did not address issues specific in these proceedings. It was also noted that at the time her statement was drafted there was the potential that she and the residential home may be criticised and so the statement may have been drafted in order to protect the carer s own self-interest. She cannot be located and so those questions have not been asked of her and Mr Sheldon has not had the opportunity to test her evidence. 40. The Tribunal noted that the reliability and accuracy of the other hearsay evidence received was not challenged. 41. The Tribunal was satisfied that upon reading Patient A s triage notes, Dr Algarousha should have suspected that she may not have had capacity to consent or refuse investigations, examination and treatment. That suspicion should have been confirmed when he first saw her and noted that she was screaming and not communicating with him, and that he had to speak to her carer instead. He confirmed in his witness statement that Patient A s carer told him at the outset that it would not be possible to take a history from Patient A. He should thus have concluded from the outset of his examination of her that she did not have the 13

14 capacity to consent to any part of the consultation. He did not need the opinion of other professionals to make that determination. 42. His initial examination of the abdomen was sufficient. The Tribunal accepted Mr F s evidence, which is not challenged by Dr E, that in A & E Departments, focused examination is to be preferred. In this case Patient A was complaining of abdomen pain and so examination and palpation of the abdomen was appropriate. The Tribunal relied upon Dr Algarousha s records that there was possible +ve guarding and rebound. It is not accepted, as is now asserted by Dr Algarousha, that the guarding was voluntary, as rebound is most commonly associated with involuntary guarding, as detailed by both experts. The Tribunal therefore found that Dr Algarousha in fact made an accurate record of that examination, the results of which raised the prospect of serious abdominal pathology. X-rays and blood tests were therefore appropriate. 43. The history taken from Patient A s carer was insufficient. For example, he failed to establish that whilst the vomiting and diarrhoea had only lasted a day or so, she had suffered similar symptoms on a number of occasions over the previous few months and had attended her GP on many occasions. 44. Whilst Dr Algarousha notes that Patient A refused blood tests and x-rays, he should have identified that she did not have the capacity to do so. However, the Tribunal accepted that faced with such a scenario there were two appropriate courses of action. The first was to sedate Patient A in order to perform the blood tests, which would have included some restraint and therefore foreseeable distress. The second was to take a more conservative approach keeping Patient A under observations and undertaking a fluid challenge. 45. Mr F stated that this was a difficult complex and challenging case, the Tribunal accepted this and thus, given the complexity of the situation, the Tribunal would have expected Dr Algarousha to have sought advice from a senior colleague at that stage. 46. Whilst Dr Algarousha states that he directed a fluid challenge the Tribunal did not accept that this was administered in a suitable manner as described by Mr F in oral evidence and did not accept his account in his witness statement as to how this was undertaken. The Tribunal found that in fact it consisted of simply asking Patient A s carer to give her water. Had it been appropriately administered the Tribunal would have expected volumes, timings and any clinical reaction from Patient A to be recorded on a fluid chart. This would have been recorded in the clinical records had it been completed. 47. The Tribunal did not accept that it was appropriate to discharge Patient A without further examination or that Dr Algarousha had adequately excluded the prospect of serious pathology. The Tribunal accepted that the fact that Patient A 14

15 settled and fell asleep, and the fact that she did not suffer further instances of vomiting and diarrhoea, was indicative of viral gastroenteritis. However, given the earlier finding of possible +ve guarding and rebound, the fact that Patient A had not completely settled and at times presented as distressed, and the fact that x-rays and blood tests had not been undertaken, it was incumbent upon Dr Algarousha to undertake further examination of her abdomen, including palpation. In all of the circumstances it was not appropriate to discharge without having done so. 48. The Tribunal then went on to consider each outstanding paragraph of the Allegation separately and has evaluated the evidence in order to make its findings on the facts. Paragraphs 1 a and b 49. The Tribunal considered that Dr Algarousha did not consider the issue of capacity to consent and had proceeded without any thought of that issue, otherwise there would have been a clear note on his file. He accepted in his oral evidence that he did not need to assess her capacity. The Tribunal considered this to be incorrect and that the question of her lack of capacity was fundamental to the correct legal framework under which Patient A should have been managed. 50. Further, in all the circumstances, had he considered and assessed capacity he would have reached the irresistible conclusion that she clearly did not have capacity at any stage of her attendance at the A & E Department. He failed to assess her capacity or to recognise that she lacked capacity to consent or refuse appropriate assessments, investigations and treatment. 51. The Tribunal therefore determined these failures amounted to a failure to provide good clinical care to Patient A. Paragraphs 1 c (i), (ii), (iii) and (iv) 52. The Tribunal considered the evidence of Mr F that practitioners working in A & E Departments conduct focused examinations on presenting patients. It bore in mind that as it is a busy department, doctors focus on the problem that the patient is complaining of, hence any observations are appropriately targeted. 53. The Tribunal therefore did not consider that it was necessary to assess or record Patient A s heart rate, radial pulse, oxygen saturation or respiratory rate considering that she was complaining of abdominal pain, vomiting and diarrhoea. It determined that such assessments would not provide any extra clinical information to assist Dr Algarousha in diagnosing Patient A or determining the underlying cause, noting that a focused assessment on areas such as Patient A s abdomen and hydration were more relevant and important. 15

16 54. The Tribunal therefore determined that Dr Algarousha did not fail to provide good clinical care when he omitted to assess Patient A s heart rate, radial pulse, oxygen saturation and respiratory rate. Paragraph 1 c (v), (vi) and (vii) 55. The Tribunal concluded on the balance of probabilities that peripheral perfusion, sweating and dehydration were assessed by Dr Algarousha as these assessments can be undertaken by looking at a patient and it is unlikely that Dr Algarousha would have failed to undertake visual checks when he first examined Patient A. However, his admissions that he failed to record the results of those visual assessments is noted. Paragraph 1 c (viii) 56. For reasons outlined in relation to 1c (i) (iv) the Tribunal accepted that examination of Patient A s chest was not necessary in all of the circumstances. Paragraph 1 c (ix) 57. The Tribunal noted Dr Algarousha s admission that he failed to adequately record his assessment of Patient A s abdomen as he did not specify that the guarding was voluntary. Having heard the evidence, the Tribunal did not accept that the guarding was voluntary and therefore found that the notes of the abdominal assessment were an accurate reflection of Dr Algarousha s initial assessment. The Tribunal would not have found this proved. Paragraphs 1 c (x) and (xi) 58. The Tribunal considered that attempts to assess Patient A s bowel sounds or urine, in the circumstances of the case, would have been impracticable given Patient A s screaming, resistance and her incontinence. Additionally, the Tribunal considered that such investigations were not necessary. Paragraphs 1 c (xii) and (xiii) 59. The Tribunal bore in mind the evidence of Dr Algarousha that he did refer Patient A to get blood tests and x-rays done, and that she refused such tests. It noted Dr Algarousha s method of taking a conservative approach to treatment by continuing to monitor Patient A rather than force her to undergo these investigations, and determined that this was indeed a reasonable approach. However, the Tribunal noted that Dr Algarousha did not make any reference in his notes to the reasons for his clinical decision to abandon the tests when she did not cooperate. It therefore determined that Dr Algarousha did not provide adequate clinical care to the extent that he failed to sufficiently record this information. 16

17 Paragraph 1 d 60. The Tribunal bore in mind the evidence of Mr F that the situation Dr Algarousha faced was complex. It noted that Dr Algarousha was the most senior doctor on shift at that time, however his unfamiliarity with the type of case was exhibited by the fact he did not recognise or understand that Patient A lacked capacity. 61. Bearing these considerations in mind, the Tribunal determined that Dr Algarousha should have contacted the Consultant and/or the Senior Nurse in charge for advice and assistance in formulating a treatment plan, after his initial plan of requesting blood tests and x-rays was frustrated. His omission to make such contact is a failure of good clinical care. Paragraph 1 e 62. Patient A presented with a carer who appeared to know her medical history. The consultation did not involve making any significant medical decisions regarding serious operational procedures or invasive interventions. Hence the Tribunal concluded that Dr Algarousha was not required to contact the next of kin. 63. Furthermore, the Tribunal considered that it was the care home who were aware that Patient A s next of kin wanted to be contacted about medical consultations, and it was therefore their responsibility to notify the next of kin or inform Dr Algarousha, rather than the responsibility of Dr Algarousha. The Tribunal found no evidence that Dr Algarousha was so informed. 64. Whilst the Tribunal accepted that Patient A s sister, if contacted, may have been able to calm down Patient A, it was noted that Patient A was accompanied by her carer and as such the Tribunal found that not contacting her did not constitute a failure in all of the circumstances. 65. Based on the above factors the Tribunal determined that Dr Algarousha was under no obligation or expectation to contact Patient A s next of kin, and his lack of contact with the next of kin was not a failure to provide good medical practice. Paragraph 1 f 66. The Tribunal noted that Patient A did not have capacity to consent to treatment, given her severe autism and learning disability. It therefore determined that Dr Algarousha could not have sought consent from her. 17

18 67. The Tribunal therefore determined that Dr Algarousha did not fail to provide good clinical care by not obtaining Patient A s consent, as obtaining such consent was not possible. Paragraphs 1 g 68. The Tribunal considered that on the evidence, Dr Algarousha did obtain a 24- hour history from Patient A s carer as to her vomiting, diarrhoea and abdominal pain. It acknowledged that it was difficult to take a history from Patient A, however it considered that the history taken did not add much information to that taken by the triage nurse. The Tribunal accepted Dr Algarousha s evidence that he did query Patient A s history to the extent of what was in his clinical notes from the consultation, and also accepted that he may have omitted to either ask, or record, some other minor details that were not relevant to Patient A s treatment. 69. However, the Tribunal considered that significant questions regarding Patient A s past medical history, such as whether she was taking any medication or whether there was any repeated history of the symptoms of vomiting, diarrhoea, abdominal pain or a history of her past illnesses were not asked. The Tribunal did note Dr Algarousha s evidence that he would have made such enquiries, however it considered that such information would have been so important that Dr Algarousha would have recorded it in the notes, had he asked at the time. It therefore determined that Dr Algarousha did fail to provide good clinical care when he did not make sufficient inquiries as to Patient A s past medical history. Paragraph 1 h 70. The Tribunal referred itself to the notes taken by both the triage nurse and Dr Algarousha upon speaking to Patient A s carer. It was satisfied that the clinical notes exhibited in evidence were a sufficient inquiry of Patient A s social circumstances, usual behaviours, accommodation and arrangements for her care. 71. The Tribunal therefore determined that Dr Algarousha did not fail to provide good clinical care in this regard, having obtained relevant information from Patient A s carer. Paragraph 1 i 72. The Tribunal considered the additional unchallenged statement tendered by Dr Algarousha dated 24 July 2018 in relation to the availability of previous medical notes for Patient A. It also considered the circumstances of Dr Algarousha s examination being late on a Friday night and Patient A s GP clinic being closed. 73. The Tribunal therefore considered that there was nothing more Dr Algarousha could have done to obtain Patient A s medical records from her GP. However, this 18

19 reinforced the need for him to take a thorough history from Patient A s carer. It determined that Dr Algarousha did not fail to provide good clinical care by not obtaining Patient A s medical records. Paragraph 1 j 74. The Tribunal noted that there is no reference to a diagnoses being made in the contemporaneous clinical records and this is in line with Dr Algarousha s admission. However, the Tribunal accepted that he made a clinical diagnosis of viral gastroenteritis and that this is supported by reference to that diagnosis in the discharge letter completed by a nurse. 75. The tribunal accepted that Dr Algarousha considered a diagnosis of peritonitis at the time of examining Patient A. The Tribunal therefore determined that Dr Algarousha failed to provide good clinical care to Patient A to the extent that he did not record his diagnosis within the clinical records. Paragraph 1 k 76. The Tribunal considered that there was not sufficient evidence before Dr Algarousha at the time of the consultation to admit Patient A, given there was no worsening of symptoms and the likely diagnosis of viral gastroenteritis. However, the Tribunal concluded that Dr Algarousha should have kept Patient A in the A & E Department for a longer period of observation and to enable further abdominal palpation and examination, rather than discharge her at that time. 77. The Tribunal therefore determined that Dr Algarousha did not fail to provide good clinical care to Patient A by not admitting her to hospital. Paragraph 1 l 78. The Tribunal acknowledged the potential difficulty with examining Patient A whilst she slept, namely that if she woke up she may become highly distressed. It also noted that her symptoms had lessened, and that on the evidence of both experts if she was suffering a serious medical condition, such as peritonitis, it is unlikely she would have fallen asleep. It also determined that Dr Algarousha would have likely assessed Patient A visually by looking at her for signs of dehydration, such as dry lips. The Tribunal noted that these factors would have reduced the possibility of serious pathology. 79. However, the Tribunal also bore in mind the oral evidence of Dr Algarousha that Patient A was not entirely settled at the point of discharge and, given that upon initial examination Patient A exhibited possible +ve guarding and rebound the Tribunal agreed with Dr E s evidence that it would have been appropriate for 19

20 Dr Algarousha to undertake an additional examination prior to discharging her to confirm there was not a more serious underlying cause for Patient A s symptoms. 80. The Tribunal therefore determined that Dr Algarousha should have assessed or examined Patient A physically prior to discharging her, and that his failure to do so meant he failed to provide good clinical care. 81. The Tribunal has found, in addition to his admissions, that Dr Algarousha s actions at paragraph 1 of the Allegation amount to failures to provide good clinical care in relation to subparagraphs a, b, c (xii), c (xiii), d, g, and l. The Tribunal s Overall Determination on the Facts 82. The Tribunal has determined the facts as follows: 1. On 23 March 2012 you failed to provide good clinical care to Patient A in that you failed to: a. assess the patient s capacity to consent to or refuse assessment and/or investigations and/or treatment; Found Proved. b. recognise that the patient lacked capacity to consent to or refuse the appropriate assessments and/or investigations; Found Proved. c. assess and/or investigate and/or record the patient s: i. heart rate, Found Not Proved. ii. presence of a radial pulse, Found Not Proved. iii. oxygen saturation, Found Not Proved. iv. respiratory rate, Found Not Proved. v. peripheral perfusion, Admitted and Found Proved insofar and limited to the failure to record. Found Not Proved in relation to assessment and investigation. vi. sweating, Admitted and Found Proved insofar and limited to the failure to record. Found Not Proved in relation to assessment and investigation. vii. signs of dehydration, Admitted and Found Proved insofar and limited to the failure to record. Found Not Proved in relation to assessment and investigation. viii. chest, Found Not Proved. 20

21 ix. abdomen, Admitted and Found Proved insofar and limited to the failure to record. Found Not Proved in relation to assessment and investigation. x. bowel sounds, Found Not Proved. xi. Urine, Found Not Proved. xii. Blood, Found Proved insofar and limited to the failure to record. xiii. x-rays; Found Proved insofar and limited to the failure to record. d. consult with appropriate colleagues for advice for assessing, investigating and treating the patient; Found Proved. e. attempt to consult the patient s next of kin about her care; Found Not Proved. f. seek appropriate consent to undertake the investigations and treatment which were required in the patient s best interests; Found Not Proved. g. make sufficient inquiry as to the patient s recent and/or past medical history; Found Proved. h. make sufficient inquiry about the patient s: Found Not Proved. i. social circumstances, and/or ii. usual behaviours, and/or iii. accommodation, and/or iv. arrangements for her care; i. ascertain the availability of the patient s medical records; Found Not Proved. j. consider and/or record a diagnosis and/or any differential diagnoses; Admitted and Found Proved insofar and limited to the failure to record. Found Not Proved in relation to failure to consider. k. admit the patient for assessment and/or investigation and/or treatment; Found Not Proved. 21

22 l. assess and/or examine the patient while she was sleeping and/or before she was discharged. Found Proved. 2. In a discharge letter dated 24 March 2012 to Patient A s GP you: a. failed to communicate the difficulties in assessing Patient A which rendered arriving at a diagnosis challenging; b. erroneously indicated that blood tests had been carried out; c. failed to state that no investigations had been carried out; d. failed to state that gastroenteritis was a speculative diagnosis. Amended pursuant to Rule 17(6). Determination on Impairment - 15/11/ The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether, on the basis of the facts which it has found proved as set out before, Dr Algarousha s fitness to practise is impaired by reason of misconduct. The Outcome of Applications Made during the Impairment Stage 2. The Tribunal refused the GMC s application, to amend paragraph 66 of its determination on the facts. The Tribunal s full decision on the application is included at Annex B. The Evidence 3. The Tribunal has taken into account all the evidence received during the facts stage of the hearing, both oral and documentary. 4. The Tribunal also heard further oral evidence from Dr Algarousha. 5. In addition, the Tribunal received, in support of Dr Algarousha, the following documents which it has read and considered: six testimonials from colleagues who are Consultants in Emergency Medicine; audit of clinical notes of Dr Algarousha regarding treatment of ten patients; log of patient contact; summary and reflective notes of learning undertaken by Dr Algarousha; CPD and BMI learning certificates; Dr Algarousha s professional portfolio; confirmation of Appraisals from 2015, 2016 & 2017 and Appraisal Form dated 19 August 2016; 22