PUBLIC RECORD. Record of Determinations Medical Practitioners Tribunal. Dates: 29/06/2018. Medical Practitioner s name: Dr Dariusz FAFERA

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PUBLIC RECORD Dates: 29/06/2018 Medical Practitioner s name: Dr Dariusz FAFERA GMC reference number: 7396655 Primary medical qualification: Type of case Review - Non-compliance with an English

1 PUBLIC RECORD Dates: 29/06/2018 Medical Practitioner s name: Dr Dariusz FAFERA GMC reference number: Primary medical qualification: Type of case Review - Non-compliance with an English language assessment Lekarz 1985 Akademia Medyczna w Warszawie Outcome on non-compliance Non-compliance found Summary of outcome Suspension for 12 months Review hearing directed Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Ms Dharmesh Patel Mr David Fisher Dr Calum MacLeod Tribunal Clerk: Mrs Debra Heaton Attendance and Representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Not present and not represented N/A Mr David Temkin, Counsel Background and findings on non-compliance DC9118 1

2 On 16 November 2016 you were directed under Rule 7(3A) and Schedule 3 of the Fitness to Practise Rules 2004 to undertake an assessment of your English Language. Your non-compliance was considered at a ( MPT ) hearing on 29 June The MPT determined that you had failed to comply with the direction to undertake an International English Language Testing System test ( IELTS test ) and submit your results to the General Medical Council ( GMC ) by 14 February The MPT suspended your registration for a period of 12 months. On 28 September 2017 you were sent a reminder letter by that you were required to undergo an IELTS test and submit your results. You were sent further reminder letters by on 5 January 2018 and 6 April You have failed to comply in full to undertake an assessment of your English Language as directed by the GMC. There is no good reason for your failure to comply with the GMC's request. Non-compliance found Attendance of press / public The hearing was all held in public Determination on consideration of non-compliance 29/06/2018 The outcome of applications made during the non-compliance stage 1. The Tribunal granted an application made by Mr Temkin on behalf of the GMC under Rules 15 and 40 of the General Medical Council (Fitness to Practise) Rules 2004, ( the Rules ) and Schedule 4, Paragraph 8 of the Medical Act 1983 (as amended) for a determination that Dr Fafera had been properly served with notification of this hearing. The Tribunal also granted Mr Temkin s application to proceed in the absence of Dr Fafera, pursuant to Rule 31. The Tribunal s decisions and reasons are contained in Annex A. Background 2. This is a review of Dr Fafera s case following a (MPT) hearing which concluded in June 2017 (the 2017 Tribunal). 3. The 2017 Tribunal heard that Dr Fafera was initially referred to the GMC in November 2015 by Dr A, his Responsible Officer at Polmedics, his employer and designated body until October Further information was then received from DC9118 2

3 Medicare in September 2016 which highlighted deficiencies in Dr Fafera s English language skills, including concerns that Dr Fafera s knowledge of English was basic and was not sufficient to communicate with patients effectively. Concerns were also raised that he created medical records in Polish and used a translator or an interpreter when he needed to communicate in English. 4. On 16 November 2016, the GMC directed Dr Fafera to undertake an International Language Testing System Test (IELTS test) and to submit his results to the GMC. The 2017 Tribunal found that there had been non-compliance with a reasonable direction made by the GMC. It took the view that Dr Fafera had failed to provide any reason for not undertaking an IELTS test and concluded that his failure to comply was not unavoidable or otherwise excusable. The 2017 Tribunal determined to suspend Dr Fafera s registration for a period of 12 months, which it considered was the appropriate period to allow Dr Fafera to engage with the process, complete an IELTS test and provide the test results to the GMC. 5. The 2017 Tribunal indicated in its determination that a review Tribunal would be assisted by receiving: the IELTS test results any other information Dr Fafera considered would assist the Tribunal. Review Tribunal 6. This Tribunal has met to review Dr Fafera s case. It has considered, under Rule 22A of the Rules, whether there has been a failure to comply with an assessment under Schedule 3 of the Rules. 7. In reaching its decision, the Tribunal has given careful consideration to all of the documentary evidence adduced in this case. 8. The Tribunal has taken into account the letters and s sent by the GMC to Dr Fafera since the 2017 Tribunal hearing. The GMC wrote to Dr Fafera on three occasions between 28 September 2017 and 6 April 2018, providing information and instructions about the IELTS test. On 1 March 2018, the GMC informed Dr Fafera that his case was to be reviewed before this Tribunal, and he was sent Details of Non-Compliance on 17 May The Tribunal was informed that Dr Fafera has not responded to any of the correspondence sent to him by the GMC. Submissions 9. The Tribunal has considered the submissions made by Mr Temkin, on behalf of the GMC. He submitted that there has been non-compliance in this case. Tribunal s decision DC9118 3

4 10. Whilst the Tribunal has borne in mind the submissions made, the decision regarding non-compliance is one for it to reach, exercising its own judgement. 11. The Tribunal noted that the GMC wrote to Dr Fafera on three further occasions after his case was first heard by the 2017 Tribunal, reminding him about the decision of the 2017 Tribunal and the requirement to undergo the IELTS test and submit his results. He has not responded. 12. This Tribunal concurs with the 2017 Tribunal that the direction given to Dr Fafera by the GMC to undertake an IELTS test was reasonable direction, in the light of the concerns about Dr Fafera s English language skills that had been raised. Dr Fafera has not provided evidence to the GMC that he has undertaken such a test, despite reminders from the GMC. In the view of the Tribunal, there was no evidence before it to indicate that Dr Fafera has a good reason for not having undertaken the IELTS test, and, indeed, he appears to have completely disengaged from the process. The Tribunal has determined that Dr Fafera failed to comply and that this was not avoidable or otherwise excusable. 13. The Tribunal has determined that Dr Fafera is continuing to fail to comply with the GMC s direction to undergo the IELTS test and submit his results to the GMC. In the circumstances the Tribunal has therefore determined that noncompliance has been found. Determination on sanction 29/06/ Having determined that there is non-compliance by reason of Dr Fafera s failure to undertake an assessment of knowledge of English in accordance with Schedule 3 to the Rules, the Tribunal has considered whether a sanction should be imposed. 2. The Tribunal has considered the submissions made by Mr Temkin, on behalf of the GMC, regarding the appropriate sanction, if any, that should be imposed on Dr Fafera s registration. 3. Mr Temkin submitted that an order of suspension for a period of 12 months would be the appropriate and proportionate sanction in this case. He said that there was no mitigating information before the Tribunal regarding Dr Fafera s failure to comply with the GMC direction and that Dr Fafera has been given ample opportunity to comply. He said that an order of suspension would also reflect the concerns about Dr Fafera s English language skills. 4. The Tribunal is aware that the decision as to the appropriate sanction, if any, to impose on Dr Fafera s registration is a matter for this Tribunal exercising its independent judgment. In reaching its decision, the Tribunal has taken account of DC9118 4

5 the guidance entitled Non-compliance hearings guidance for medical practitioner Tribunals. 5. Throughout its deliberations, the Tribunal considered its overarching objective which includes: a. protecting, promoting and maintaining the health, safety and well-being of the public, b. maintaining public confidence in the profession c. promoting and maintaining proper professional standards and conduct for the members of the profession. 6. The Tribunal has also borne in mind that the purpose of a sanction is not to punish or discipline doctors, but it may have a punitive effect. No Action 7. The Tribunal first considered whether to conclude Dr Fafera s case and take no further action. It determined that, in the light of the concerns that have been raised about Dr Fafera s English language skills and his failure to comply with a GMC direction to undertake the IELTS test and submit his results to the GMC, it would not be sufficient to protect the public, or maintain public confidence in the profession, if the Tribunal decided to take no action. Conditions 8. The Tribunal next considered whether it would be appropriate to impose a period of conditions on Dr Fafera s registration. It has borne in mind that any conditions must be appropriate, proportionate, workable and measurable. 9. The Tribunal has found that Dr Fafera has failed to comply with a GMC direction to undergo an IELTS test and submit the results to the GMC, in the light of significant concerns about his English language skills. There is no evidence of any circumstances which might mitigate his failure to comply. Further, there is no evidence of any steps that Dr Fafera has taken towards compliance since his case was considered by the 2017 Tribunal. In all these circumstances, the Tribunal cannot be satisfied that, even if conditions could be formulated in his case, that Dr Fafera would comply with them. 10. The Tribunal was not satisfied that it would be sufficient and proportionate, weighing the interests of the public with Dr Fafera s interests, to impose conditions on his registration. DC9118 5

6 Suspension 11. Having determined that the imposition of conditions would not be appropriate, the Tribunal considered whether to suspend Dr Fafera s registration for a further period. 12. Dr Fafera was previously suspended for a period of 12 months, and remains non-compliant with the GMC direction. The Tribunal took the view that he has been given a sufficient opportunity to comply, in the absence of any evidence before the Tribunal of any mitigating factors regarding his non-compliance. The Tribunal has taken the view that, given the concerns raised about Dr Fafera s English language skills, his failure to comply with the GMC directions and his failure to engage with the GMC at all, suspension of Dr Fafera s registration is required for the protection of the public and is otherwise in the public interest. 13. The Tribunal has determined to suspend Dr Fafera s registration for a period of 12 months. Given the history of this case, the Tribunal considers that this period will provide Dr Fafera with a further opportunity to prepare for and take the IELTS test and provide the results to the GMC. 14. A Tribunal will review Dr Fafera s case at a hearing to be held before the end of the period of suspension. It will then consider whether it should take any further action in relation to his registration. Dr Fafera will be informed of the date of that meeting, which he will be expected to attend. The Tribunal reviewing his case would be assisted by receiving the following: the IELTS results any other information which Dr Fafera considers will assist the reviewing Tribunal 14. The Tribunal also noted that if Dr Fafera were to be in a position to demonstrate compliance with the GMC s direction before his hearing is due to be reviewed, it will be open to him to request an early review of his case. 15. The effect of this direction is that, unless Dr Fafera exercises his right of appeal, this decision will take effect 28 days from when written notice of this determination is deemed to have been served upon him. If Dr Fafera decides to appeal against this decision the suspension currently imposed on his registration will remain in force until the appeal is determined. 16. That concludes this hearing Confirmed Date 29 June 2018 Ms Dharmesh Patel, Chair DC9118 6

7 Annex A Service and proceeding in the absence of the doctor 29/06/ Dr Fafera is neither present nor represented at these proceedings. The Tribunal has considered whether notice of this hearing has been properly served upon Dr Fafera in accordance with Rules 15 and 40 of the General Medical Council (Fitness to Practise) Rules 2004 ( the Rules ) and Schedule 4, Paragraph 8 of the Medical Act 1983 (as amended). In so doing, the Tribunal has taken into account all the information placed before it, together with Mr Temkin s submissions on behalf of the General Medical Council (GMC). 31. The Tribunal has been provided with bundles comprising correspondence from the General Medical Council (GMC) and Service (MPTS) to Dr Fafera. These bundles included an information letter from the GMC dated 17 May 2018, which enclosed Details of Non-Compliance (the GMC information letter). The GMC information letter was sent by the GMC to Dr Fafera s registered address by Special Delivery. It was also sent by to Dr Fafera s address on 5 June On 25 May 2018, a notice of hearing was sent by the Medical Practitioners Tribunal Service (MPTS) (the MPTS notice) to Dr Fafera s registered address by Special Delivery. The MPTS notice was also sent to Dr Fafera by on 30 May The Tribunal took the view that all reasonable attempts had been made to serve Dr Fafera at his registered address and that further attempts had been made to serve him by . It was satisfied that service had been properly effected. 34. The Tribunal went on to consider whether to proceed in Dr Fafera s absence in accordance with Rule 31, taking account of the documentation presented and Mr Temkin s submissions on behalf of the GMC. It bore in mind that the Tribunal s discretion to proceed in the practitioner s absence must be exercised with caution and with regard to the overall fairness of the proceedings. The Tribunal balanced the interests of the practitioner, including fairness to him, against the public interest, including the need to protect patients. 35. On the basis of the information provided the Tribunal is satisfied that Dr Fafera had voluntarily waived his right to be present and represented at this hearing. The Tribunal considered that were it to adjourn today, it was very unlikely that Dr Fafera would attend a future hearing. The Tribunal therefore determined that it was in the public interest and Dr Fafera s own interests to exercise its discretion and proceed with the case in his absence. MPT: Title SURNAME DC9118 1

8 36. Having reached this decision, the Tribunal wished to emphasise that it would not draw any adverse inference from Dr Fafera s non-attendance. MPT: Title SURNAME DC9118 2

PUBLIC RECORD. Record of Determinations Medical Practitioners Tribunal. Date: 29/06/2017. Medical practitioner s name: Dr Dariusz Stanislaw FAFERA

PUBLIC RECORD. Record of Determinations Medical Practitioners Tribunal. Date: 29/06/2017. Medical practitioner s name: Dr Dariusz Stanislaw FAFERA PUBLIC RECORD Date: 29/06/2017 Medical practitioner s name: Dr Dariusz Stanislaw FAFERA GMC reference number: 7396655 Primary medical qualification: Type of case New - Non-compliance with an English language