PUBLIC RECORD. Record of Determinations. Medical Practitioner: Date: 03/12/2018. GMC reference number: Review - Misconduct

Transcription

1 PUBLIC RECORD Date: 03/12/2018 Medical Practitioner s name: Dr Bassel Hayssam EL-OSTA GMC reference number: Primary medical qualification: Type of case Review - Misconduct Vrac 2000 Kazan State Medical University Outcome on impairment Impaired Summary of outcome Suspension, 6 months. Review hearing directed Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Mr Nick Flanagan Mrs Jayne Wheat Dr Stephen Duxbury Tribunal Clerk: Ms Sarah Ryan Attendance and Representation: Medical Practitioner: GMC Representative: Present and not represented Ms Jennie Ferrario, Counsel 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 Determination on Impairment - 03/12/2018 Background 1. The Tribunal does not intend to rehearse the full background of Dr El-Osta s case, but would summarise as follows. 2. Dr El-Osta s case was first considered by a in October 2017 ( the 2017 Tribunal ). The Allegation pertained to Dr El-Osta s conduct towards two fourth year medical students (identified as Ms A and Ms B ), whilst he was employed as a Senior Orthopaedic Registrar at the Royal Free Hospital, London. 3. The 2017 Tribunal found it proved that on 24 February 2015, whilst Ms A and Ms B shadowed Dr E-Osta s on call shift, he put his arms around the waist of Ms A and Ms B and smacked Ms A s bottom, without invitation. He also referred to Ms A and Ms B as his 'two beautiful girls', or words to that effect. On that same date, Dr El-Osta shared a meal with Ms B. Dr El-Osta asked Ms B to keep him company in his room, or words to that effect, and gave Ms B a 'bear hug' without invitation. 4. The 2017 Tribunal found it proved that on 4 March 2015, whilst Ms B shadowed Dr E-Osta s on call shift, he touched the back of Ms B's hands without invitation and said you have beautiful hands. He made a number of comments to Ms B. These were that the only way to shut a woman up is to kiss her, that she had long and flexible legs, and asked Ms B if he needed to kiss her, or words to that effect. On that same date, Dr El-Osta shared a meal with Ms B. He told Ms B that he had once given a female patient an orgasm whilst carrying out a vaginal examination. He also told her that when he worked in Obstetrics and Gynaecology he could not separate work from his personal life and wanted to have sex with the patients. 5. The 2017 Tribunal also found it proved that on 4 March 2015, Dr El-Osta stood at a bus stop with Ms B. He asked Ms B if she wanted to see his room so that she could amuse him, or words to that effect. He pulled Ms B so that she was facing him and crossed his arms around her back, and kissed Ms B on the neck and lips, without invitation. Additionally, he told Ms B, 'you can't say no to me', or words to that effect, and placed his arms around her front. 6. The 2017 Tribunal found Dr El-Osta s conduct to be sexually motivated on all but two particulars. It determined that Dr El-Osta s conduct represented an escalating pattern of calculated behaviour within a professional context and where there was a power imbalance. It concluded that Dr El-Osta's conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct. 2

3 7. The 2017 Tribunal was of the view that Dr El-Osta abused his position of trust and authority over two junior colleagues, that he did not treat Ms A and Ms B with respect, and that he should have been aware of how his behaviour might have influenced others. It noted that Dr El-Osta denied the allegations and sought to suggest that there was collusion between the witnesses, in an attempt to undermine their credibility. 8. The 2017 Tribunal determined that it had no indication that Dr El-Osta's attitude had changed since the events in question and described his attitude towards due process for and during the hearing as cavalier. It determined that Dr El-Osta's fitness to practice was impaired by reason of misconduct. 9. The 2017 Tribunal determined that a period of suspension was the most appropriate and proportionate sanction. It considered whether to erase Dr El-Osta s name from the medical register, given his denial of the allegation and therefore lack of remediation. However, it took into account there was no other evidence of this type of misconduct. Further, it determined that whilst there had been a serious breach of Good medical practice ( GMP ), Dr El-Osta s misconduct was not sufficiently serious to warrant erasure. It determined that a 12 month period of suspension adequately marked the seriousness of his behaviour, and was sufficient to protect patients and the public interest and to uphold proper standards and conduct for members of the profession. 10. The 2017 Tribunal directed a review. It determined that a reviewing Tribunal would be assisted by a reflective statement from Dr El-Osta, indicating any insight he has developed regarding his conduct and what he might do in the future to prevent its repetition. It concluded that Dr El-Osta's attitude and engagement during the review process and hearing would be relevant factors for the reviewing Tribunal to consider, as well as the factors at paragraph 164 of the Sanctions Guidance as to: "whether that doctor has shown all the following (by producing objective evidence): a. they fully appreciate the gravity of the offence b. they have not reoffended c. they have maintained their skills and knowledge d. patients will not be placed at risk by resumption of practice or by the imposition of conditional registration." Today s Review Hearing 11. This Tribunal has today reviewed Dr El-Osta s case and has considered, in accordance with Rule 22(l)(f) of the Rules, whether his fitness to practise remains currently impaired. In so doing it has considered the submissions made by Ms Ferrario, Counsel, on behalf of the GMC, and those made by Dr El-Osta. 3

4 The Outcome of Applications Made during the Impairment Stage 12. Dr El-Osta informed the Tribunal, shortly before it went into its private deliberations, that he had a flight booked for that evening and had to leave by 1pm. When it became apparent that the review would not be concluded by 1pm, Dr El-Osta was invited to indicate how he wished for the matter to proceed. He stated that he had no further submissions for any stage of the hearing and made a positive request for the Tribunal to proceed with the hearing in his absence, as he did not wish to adjourn the hearing to a later date. Ms Ferrario submitted that, whilst it was regrettable, it was appropriate in the circumstances for the Tribunal to proceed in Dr El-Osta s absence. 13. The Tribunal was satisfied that Dr El-Osta, having attended the morning session, had been provided with proper notice of today s proceedings and was fully informed of its progress. The Tribunal concluded that this review had been arranged for some time, that Dr El-Osta was clearly aware of the proceedings and that the period of suspension was imminently due to expire. It was agreed that a copy of the determination would be ed to him and that a 20-minute period would be given to allow him to respond. In all the circumstances, the Tribunal determined that it was in the interests of justice to proceed in Dr El-Osta s absence. Accordingly, it determined to do so in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended ( the Rules ). The Evidence Documentary evidence 14. The Tribunal has taken into account all the evidence received during the impairment stage of the hearing, both oral and documentary. This included, but was not limited to: Administrative letters and s sent to Dr El-Osta in respect of the review hearing; An from Dr El-Osta to the GMC, dated 4 September 2018, attaching a letter; and A page of reviews on Dr El-Osta s XXX Facebook page. 15. Dr El-Osta s letter reads as follows: a. they fully appreciate the gravity of the offence The offence initially was not my character and I usually not a guy to do anything similar. Despite, I don t agree with the initial accusation but this is now behind my back and I appreciate everything, but this will not be re-done. 4

5 Dr El-Osta s oral evidence b. they have not reoffended Obviously not and it will never occur again. c. they have maintained their skills and knowledge Obviously we maintained our skills and Knowledge as I Continue to work as a surgeon and I didn t stop for any day in Lebanon, I continued to teach and in fact I became international lecturer and Instructor on the ATLS as well as accepted as Assistant prof. I continued my PhD so really the GMC decision didn t stop me to continue my normal duty. d. patients will not be placed at risk by resumption of practice or by the imposition of conditional registration. In Fact I gain even more skills and knowledge and I become Officially A Consultant Orthopaedic Surgeon for 3 different Hospital. N.B: If you like more information please follow me on the facebook page: XXX. 16. Dr El-Osta told the Tribunal that he works in three hospitals in Lebanon, as well as in a private clinic. He stated that his secretary is a 23 year-old woman, that he teaches both female and male doctors at the American University, and that his behaviour is completely respectful. 17. Dr El-Osta told the Tribunal that he made a mistake which was not in his character. He stated that he has learned and has not repeated his actions. He stated that the only way to move forward is to look back and learn from mistakes. He stated that he has continued to work and teach in Lebanon and maintain his skills and knowledge. He stated that his work abroad has meant being away from family for a year. 18. Upon cross-examination, Dr El-Osta stated that he did not provide a reflective statement or comment on the impact of his actions on Ms A and Ms B as it was not a priority. He stated that his priority was to work and to provide for his family. He stated that he could demonstrate his insight through his actions, rather than words. He referred to the reviews on his Facebook page and stated that these carried more weight than his own statement. He stated that he did not obtain a statement from his secretary as her English was poor and that if she had an issue with his work, she would have not stayed with him for the period of 13 or 14 months. He stated that he had provided sufficient evidence and that testimonials/references were not required. 5

6 19. Dr El-Osta stated that he has made changes to his practice and behaviours since the 2017 Tribunal. This includes maintaining an appropriate physical distance, keeping his door open when consulting female patients and having a chaperone present during examinations. He stated that, when teaching, he will not accept single female students and that he only teaches females in groups. He stated that he has learned to be more careful and to not put himself at risk. He stated that his mistake was letting Ms A cross the line and get too close, that he now keeps himself at a distance and keeps especially females away. Submissions 20. On behalf of the GMC, Ms Ferrario submitted that Dr El-Osta s fitness to practise remains impaired. She referred the Tribunal to Dr El-Osta s letter, specifically his comment that: The offence initially was not my character and I usually not a guy to do anything similar. Despite, I don t agree with the initial accusation but this is now behind my back and I appreciate everything, but this will not be re-done. 21. Ms Ferrario submitted that, whilst this comment may reflect Dr El-Osta s competency of the English language, his denial of the initial allegation was concerning as it could indicate his lack of insight. Ms Ferrario submitted that his response did not appear to answer whether he appreciated the gravity of the offence. She submitted that there was no evidence that the concerns highlighted by the 2017 Tribunal have been addressed and that the risk had been removed. Ms Ferrario submitted that there was no evidence that there had been a change in the position since the last hearing. She accepted, on behalf of the GMC, that Dr El-Osta continues to work in Lebanon and that there are no concerns with respect to maintaining his medical skills and knowledge up to date. Further, she accepted that there were no concerns with respect to direct patient risk. 22. Dr El-Osta rejected the GMC s submission that he has no insight. He stated that he has reflected, changed his practice and has not repeated his actions. He stated that he has learned and moved forward. 23. Dr El-Osta stated that if he were permitted to return to practice, he would inform his head of department and put stricter measures in place to avoid any potential difficulties, but ask that they maintain his privacy. The Relevant Legal Principles 24. The Tribunal reminded itself that at a review hearing, the persuasive burden falls upon the doctor to show how his conduct has been remediated, in order to demonstrate that he is no longer impaired. The decision as to whether Dr El-Osta s fitness to practise is impaired is a matter for this Tribunal alone, exercising its own judgment. 6

7 25. The Tribunal must determine whether Dr El-Osta s fitness to practise is impaired today. In so doing, it has taken into account his conduct at the time of the allegations, together with any relevant changes since then, and any relevant factors since then, such as whether the matters are remediable, have been remediated and are highly unlikely to be repeated. 26. Throughout its deliberations, the Tribunal has borne in mind the statutory over-arching objective, which includes to: a b protect and promote the health, safety and wellbeing of the public promote and maintain public confidence in the medical profession c promote and maintain proper professional standards and conduct for the members of the profession. The Tribunal s Determination on Impairment 27. The Tribunal determined that, in his oral evidence, Dr El-Osta demonstrated some limited insight into his actions. He has stated that he has made a mistake and has considered how his own use of language, such as complimenting someone s physical appearance, could be misinterpreted. He has stated that he has changed aspects of his clinical practice and interactions with female patients and students. In this Tribunal s view, this indicates that he has started to develop some understanding of his misconduct and has attempted to modify his behaviour. 28. However, the Tribunal determined that Dr El-Osta has not demonstrated that he fully appreciates the gravity of his misconduct. He has not provided a reflective statement, as recommended by the 2017 Tribunal and has stated that this was not a priority for him. His evidence seemed to focus entirely on the impact that being suspended has had on his personal and professional life. There is no evidence before the Tribunal from Dr El-Osta to show that he has taken into account the seriousness of his actions or their impact on Ms A and Ms B. Importantly, there appears to be no recognition of the impact his actions had on public confidence in the medical profession or the upholding and maintenance of proper professional standards. The measures which he states he has taken to change his conduct seemed to focus on protecting himself from potential complaints from junior female colleagues/patients, rather than a recognition that his own actions and attitudes needed to change. The Tribunal was concerned by Dr El-Osta s comment that his mistake was in letting Ms A cross the line and get too close, rather than an acceptance that his conduct towards Ms A and Ms B was inappropriate. 29. The Tribunal accepted that Dr El-Osta he has continued to undertake clinical work. However, it would have been better assisted by independent or objective evidence that Dr El-Osta is keeping his skills and knowledge up to date. The only indication of others 7

8 views of his professional practice were the patient reviews on his XXX Facebook page, which the Tribunal determined was of limited assistance. 30. Taking all of the above into account, the Tribunal determined that although limited progress has been made since the 2017 Tribunal, Dr El-Osta has yet to demonstrate that he fully understands his misconduct or that he can now conduct himself appropriately. Further, while Dr El-Osta belatedly acknowledged that he could have provided both a reflective statement and independent evidence, his failure to produce objective evidence was concerning. Whilst he attended and co-operated in the Tribunal process, this did not, in itself, amount to sufficient necessary steps to evidence his remediation. Given this, Dr El-Osta has not fulfilled the persuasive burden upon him to demonstrate that he is fit to practise. 31. The Tribunal therefore determined that Dr El-Osta s fitness to practise is impaired by reason of misconduct. Determination on Sanction - 03/12/ Having determined that Dr El-Osta s fitness to practise is impaired by reason of misconduct, the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction, if any, to impose. Submissions 2. On behalf of the GMC, Ms Ferrario submitted that the appropriate and proportionate sanction to impose was one of erasure. 3. Ms Ferrario submitted that there was no question of whether El-Osta was a good doctor in terms of his clinical practical, however, this case related to his conduct with younger female colleagues. She submitted that being a good doctor is not just about clinical competence. 4. Ms Ferrario submitted that Dr El-Osta has demonstrated a serious lack of insight. Specifically, she submitted, he was disinterested in the impact his actions have had on Ms A and Ms B and was candid in saying that this was not his priority. She submitted that whilst he accepted that he made a mistake, he did not elaborate on this. Ms Ferrario submitted that evidence of insight into considering the reasons for his actions was as important as steps taken to remediate. Ms Ferrario submitted that given Dr El- Osta s lack of insight and disinterest into how his conduct affected Ms A and Ms B, the Tribunal could not be satisfied that he would comply with Good medical practice ( GMP ). 5. Ms Ferrario submitted that Dr El-Osta has taken no action to remediate his misconduct. She submitted that there was no objective evidence of the informal arrangements which Dr El-Osta states he has put in place to with respect to his working practice. She submitted that the Tribunal should place limited weight on his evidence. 8

9 She submitted that, having regard to Dr El-Osta s attitude and the professional damage which this may have caused, there was a potential risk to female colleagues. 6. Ms Ferrario submitted that Dr El-Osta has had a significant amount of time to reflect upon his actions, read the determination of the 2017 Tribunal and address the concerns raised. She stated that his decision to leave the hearing part way through proceedings, as well as his evidence that it took him two months to read the determination of the previous Tribunal, was indicative of his disinterested attitude. 7. Ms Ferrario submitted that if the Tribunal determined to impose a further period of suspension, it would need to be satisfied that suspension would lead to change in Dr El- Osta s attitude. She submitted that there has been no change in the circumstance since the 2017 Tribunal and that Dr El-Osta has not taken the opportunity provided to him by the suspension to demonstrate insight and remediation. She submitted that erasure was now the appropriate and proportionate sanction. 8. Dr El-Osta was not present for this stage of proceedings. The Tribunal took into account that, before he departed from the hearing, he stated that he had no further submissions to make. 9. Dr El-Osta was provided with an copy of the determination on Impairment. He confirmed receipt in an in a reply at 2:35pm, where he invited the Tribunal to take into account the impact on his family if it resulted in him continuing to work outside of the UK. The Tribunal s Determination on Sanction 10. The decision as to the appropriate sanction, if any, to impose is a matter for the Tribunal alone, exercising its own judgement. In so doing, it has given consideration to its finding of impaired fitness to practise and the submissions made by both parties. It also took account of the Sanctions Guidance (February 2018 edition). 11. Throughout its deliberations the Tribunal bore in mind that the purpose of sanctions is not to be punitive, but to protect the public interest. The public interest includes protecting the health, safety and wellbeing of the public, maintaining public confidence in the profession, and declaring and upholding proper standards of conduct and behaviour. In making its decision, the Tribunal also had regard to the principle of proportionality, and it weighed Dr El-Osta s interests with those of the public. It also considered and balanced the mitigating and aggravating factors previously identified in this case, with Dr El-Osta s current circumstances. No Action 12. The Tribunal first considered whether to conclude the case by taking no action. It considered, amongst others, paragraphs of the Sanctions Guidance 9

10 which highlights that taking no action following a finding of impaired fitness to practise would only be appropriate in exceptional circumstances. The Tribunal determined that there are no exceptional circumstances in this case that could justify taking no action. Conditions 13. The Tribunal next considered whether to impose conditions on Dr El-Osta s registration. It bore in mind that any conditions imposed would need to be appropriate, proportionate, workable, and measurable. The Tribunal considered the non-exhaustive list of factors in paragraphs 81 and 82 of the Sanctions Guidance, which set out criteria for determining when imposing conditions on a doctor s registration might be appropriate and/or workable. 14. The Tribunal determined that it would not be possible to formulate a set of appropriate or workable conditions which could adequately address Dr El-Osta s lack of insight into his misconduct. Additionally, it has no objective evidence of him keeping his skills and knowledge up to date or his modifications to his working practice. Importantly, the Tribunal determined that a period of conditional registration would be insufficient to satisfy the public interest. Suspension 15. The Tribunal next considered whether it would be appropriate and proportionate to suspend Dr El-Osta s registration. It found the following paragraphs of the Sanctions Guidance to be of particular relevance: 91: Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and public about what is regarded as behaviour unbefitting a registered doctor. Suspension from the medical register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension, although this is not its intention. 92: A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession). 93: Suspension may be appropriate, for example, where there may have been acknowledgement of fault and where the tribunal is satisfied that the behaviour or incident is unlikely to be repeated. The tribunal may wish to see evidence that the doctor has taken steps to mitigate their actions (see paragraphs 24 49). 10

11 16. As noted in the determination on Impairment, Dr El-Osta has not yet demonstrated a sufficient level of insight into his misconduct, its impact on Ms A and Ms B, or its impact on public confidence in the medical profession and the profession s reputation. Additionally, there is no objective evidence of the steps he says he has taken to change his practice. The Tribunal determined that his current approach to avoid working alone with female colleagues was not neither robust nor sustainable. As such, there is currently a lack of evidence that the misconduct would not be repeated. 17. For these reasons, and having regard to its obligation to uphold public confidence in the medical profession, declare and uphold proper professional standards and conduct, the Tribunal determined that it was necessary to impose a further period of suspension. The Tribunal had regard to the principle of proportionality and acknowledged the personal and financial impact that this sanction may have upon Dr El-Osta. However, in all the circumstances the Tribunal concluded that suspension appropriately balanced the public s interests with the doctor s own interests. 18. The Tribunal therefore determined to suspend Dr El-Osta s registration. 19. The Tribunal considered whether to erase Dr El-Osta s name from the medical register. However, given that there is now an acknowledgement of fault and that Dr El-Osta has demonstrated developing insight, the Tribunal determined that it would be disproportionate at this review. Duration of Suspension 20. The Tribunal determined that Dr El-Osta s registration should be suspended for a period of 6 months. The Tribunal considered that a suspension of this length would give Dr El-Osta adequate time to further reflect on his misconduct, its consequences and to focus more fully upon developing his insight. The Tribunal was mindful that Dr El-Osta has already served a 12 month period of suspension. It concluded that this further period would provide him with a clear opportunity to provide evidence for a subsequent Tribunal. Review directed 21. The Tribunal directed a review of Dr El-Osta s case. A review hearing will convene shortly before the end of the period of suspension, unless an early review is sought. The Tribunal wishes to clarify that at the review hearing, the onus will be on Dr El-Osta to demonstrate how he has developed his insight and remediated his misconduct. It therefore may assist the reviewing Tribunal if Dr El-Osta provided: 11

12 A personal statement, reflecting on the misconduct found in the 2017 Tribunal, particularly in reference to the impact on Ms A and Ms B and how the behaviour reflects on the reputation of the profession generally; Any objective/independent evidence of steps taken to demonstrate developing insight, such as Continuing Professional Development, courses (taken online or in person), discussions with peers, colleagues or a mentor; Any objective/independent evidence of modifications or alterations to his clinical practice or personal behaviours, such as mechanisms in place for chaperones or any other steps taken to avoid repetition; Any objective/independent evidence with respect to maintaining his clinical skills and knowledge (bearing in mind that he may not have practised in the UK for some 18 months); and Any references or testimonials that he may wish a reviewing Tribunal to consider. 22. Dr El-Osta will also be able to provide any other information that he considers will assist. 23. The effect of the foregoing direction is that, unless Dr El-Osta exercises his right of appeal, his registration will be suspended for a period of 6 months, effective from the date when the previous order would otherwise expire. The current order of suspension will remain in place until the outcome of any appeal is known, in accordance with Schedule 4 paragraph 11(1)(a) of the Medical Act 1983 (as amended). 24. That concludes this case. Confirmed Date 03 December 2018 Mr Nick Flanagan, Chair 12