Dates: 27/09/ /10/2017, 16/01/ /01/2018, 5/02/2018 6/02/2018

Transcription

1 PUBLIC RECORD Dates: 27/09/ /10/2017, 16/01/ /01/2018, 5/02/2018 6/02/2018 Medical Practitioner s name: Dr Tichafaseyi MTETWA also known as Dr Gordon MTETWA GMC reference number: Primary medical qualification: Type of case New - Misconduct New - Deficient professional performance MB BS 1981 University of the West Indies Outcome on impairment Impaired Impaired Summary of outcome Erasure Immediate order imposed Tribunal: Lay Tribunal Member (Chair) Medical Tribunal Member: Medical Tribunal Member: Ms Catherine Hartley Professor Robert Mansel Dr Vishal Kaushik Legal Assessor: Tribunal Clerk: Mr Alain Gogarty Ms D Montgomery Attendance and Representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Not present and not represented n/a, Mr Craig Sephton, QC / Ms Sophie Cartwright, Counsel (February 2018) 1

2 Allegation and Findings of Fact That being registered under the Medical Act 1983 (as amended): Derby Hospitals NHS Trust ( Derby Trust ) 1. On 14 May 2013 you obtained a controlled drug XXX from the restricted drugs cabinet in the Combined Day Unit at the Royal Derby Hospital for your own personal use without prescription. Found proved Isle of Wight NHS Trust ( IOW Trust ) 2. On 3 April 2014, during an appraisal with Dr A at the Trust, you: a. informed Dr A that your practice had not been restricted or suspended or subject to an investigation, when you knew this was untrue; Found not proved b. failed to disclose that you: i. had been placed on restricted duties as of 14 March 2014 as a result of concerns that had been raised about your clinical assessment, diagnosis, knowledge and behaviour at IOW Trust; Found proved ii. were currently the subject of an investigation at IOW Trust; Found proved iii. had been issued with a final written warning on 23 August 2013, whilst employed at Derby Trust. Found proved 3. On 16 April 2014, during the IOW Trust investigation, you informed the Case Investigation Officer, Dr B, that you had completed all of your mandatory training, when: a. this was untrue; Found not proved b. you knew this was untrue. Not considered The Ipswich Hospital NHS Trust ( Ipswich ) 4. Following the Interim Orders Tribunal hearing ( IOT ) on 16 December 2014 you failed to: 2

3 a. notify your Line Manager, Dr C, 24 hours prior to starting work that your registration was now subject to conditions as required by condition 11c; Found proved b. ensure that your work was supervised by a named Consultant as required by condition 9a. Found proved Colchester Hospital University NHS Foundation Trust ( Colchester ) 5. On 8 June 2016 you commenced working at Colchester Hospital. You failed to: a. notify the GMC of the post that you had accepted at Colchester Hospital, prior to starting this position as required by Condition 2a; Found proved b. ensure that your work was supervised by a clinical supervisor that had been approved by your responsible officer (or their nominated deputy) as required by condition 5a and 5b; Found proved c. inform your immediate line manager at Colchester Hospital of your conditions at least one working day before starting work as required by condition 7c. Found proved 6. In relation to your omissions referred to at paragraphs 4 and 5 above you were aware that those conditions had been placed on your registration. Found proved 7. Your actions and/or omissions as described at paragraphs 2 6 above were: a. misleading; Found proved in relation to paragraphs 2, 4 and 5 5 b. dishonest. Found not proved in relation to paragraphs 2, 4 and Performance Assessment 8. You underwent a General Medical Council assessment of the standard of your professional performance on: a April 2016 (peer review); Found proved b. 30 September 1 October 2016 (tests of competence). Found proved 3

4 9. Your professional performance was unacceptable in the following areas: a. Maintaining Professional Performance; Found proved b. Assessment of Patients Condition; Found proved c. Clinical Management; Found proved d. Record Keeping; Found proved e. Relationships with Patients; Found proved f. Working with Colleagues. Found proved Attendance of Press / Public The tribunal agreed, in accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004, that the press and public be excluded from those parts of the hearing where matters under consideration were deemed confidential. Determination on Facts - 20/10/2017 Mr Sephton: Service and proceeding in absence 1. Dr Mtetwa is neither present nor legally represented at this hearing. 2. You submitted that Notice of this hearing had been properly served on Dr Mtetwa and you invited the Tribunal to proceed in his absence. 3. You provided the Tribunal with a copy of a Service bundle which included the General Medical Council (GMC) Notice of Allegation (NOA) sent to Dr Mtetwa by on 23 August You provided the Tribunal with a copy of the delivery receipt, dated 23 August 2017, in addition to Dr Mtetwa s response, dated 25 August 2017, acknowledging receipt of the NOA. 4. You also provided the Tribunal with a copy of the Service (MPTS) Notice of Hearing (NOH), dated 24 August 2017, sent to Dr Mtetwa s registered address by Special Delivery and also sent to his address on the same date. You provided a copy of a Royal Mail Proof of delivery receipt confirming that the NOH was signed for at Dr Mtetwa s registered address on 25 August

5 5. Having considered the information in relation to service, the Tribunal was satisfied that Notice of this hearing had been served on Dr Mtetwa in accordance with Rule 40 of the GMC s (Fitness to Practise) Rules 2004, as amended, (the Rules), and paragraph 8 of Schedule 4 to the Medical Act 1983, as amended. 6. The Tribunal then considered whether it would be appropriate to proceed with this hearing in Dr Mtetwa s absence pursuant to Rule 31 of the Rules. The Tribunal was conscious that the discretion to proceed in the absence of a doctor should be exercised with the utmost care and caution, balancing the interests of the doctor with the wider public interest. 7. You submitted that it would be proper for the Tribunal to proceed. You referred the Tribunal to the correspondence between Dr Mtetwa and the GMC relating to the evidence to be put before the Tribunal. In an dated 26 September 2017, Dr Mtetwa confirmed that he did not want to be involved with day to day hearing [sic] but that he would be glad to give evidence as a witness as already planned. You stated that Dr Mtetwa is clearly aware of the hearing and has waived his right to be present. 8. At the conclusion of your submissions, the Legal Assessor informed the Tribunal that he had spoken to Dr Mtetwa immediately prior to this application. You were present during the conversation, as was the Tribunal Clerk. The Legal Assessor confirmed that Dr Mtetwa again stated that he did not wish to attend the hearing in person but would give evidence by telephone at the appropriate time. Dr Mtetwa also confirmed that he understood that by not attending the hearing he would not be present to hear the GMC witnesses give evidence or be in a position to crossexamine those witnesses. 9. In deciding whether to proceed with this hearing in Dr Mtetwa s absence, the Tribunal carefully considered all the information before it and your submissions on behalf of the GMC. 10. The Tribunal was satisfied that it was appropriate to proceed with the hearing in Dr Mtetwa s absence. It was clear that Dr Mtetwa was aware of the hearing and had voluntarily absented himself. He did not request an adjournment of the hearing, on any grounds, but rather expressed his wish that the hearing proceed. The Tribunal noted that the earliest allegation in this case dates back to 2013 and it considered that it is in the public interest and in Dr Mtetwa s interests, that these matters are resolved expeditiously. 11. The Tribunal was satisfied that any disadvantage of the doctor not attending could, to some extent, be reduced by the Tribunal admitting into evidence and carefully considering his written response to the allegation. The doctor had already made a successful application at the pre-hearing Case Management stage to give his oral evidence by telephone which had been agreed by the GMC Case Manager. The 5

6 Tribunal understood at the outset Dr Mtetwa s XXX responsibilities and made clear that every reasonable adjustment would be made to accommodate this. In deciding to proceed in absence, the Tribunal will not draw any adverse inferences from his non-attendance and it will keep in mind its duty to test the GMC case to identify any weaknesses in it. Application under Rule 34(13) 12. During the course of proceedings, the Tribunal acceded to your applications, under Rule 34(13) of the Rules, for the Tribunal to hear the evidence of Ms D by video-link and that of Dr E and Dr F by telephone. 13. The Tribunal noted that during the MPTS pre-hearing Case Management process it was agreed that a number of the witnesses would give evidence by video-link or telephone rather than in person. Dr Mtetwa had made no objection to this and he himself is scheduled to give his evidence by telephone. Having considered all the information, the Tribunal determined that the use of a video-link and/or telephone would not impede its ability to assess the evidence of the witnesses. The Tribunal considered there would be no unfairness to Dr Mtetwa and therefore it was in the interests of justice to do so. Facts Background 14. Dr Mtetwa qualified as a doctor in the West Indies in His medical background after graduating has consisted of general medical and resident jobs in the West Indies and the USA. Since moving to the UK in 2000, Dr Mtetwa has worked as a resident in private hospitals and locum posts in general medicine. Since 2003 he has worked as a resident in a private oncology setting and latterly as a staff/middle grade doctor in oncology. 15. Dr Mtetwa was referred to the GMC in September 2014 by St Mary s Hospital NHS Trust, Isle of Wight (IOW Trust), for concerns relating to his performance in Oncology. The GMC commenced an investigation and during the course of the investigation it came to light that Dr Mtetwa had received a final written warning from the Royal Derby Hospital (RDH) for obtaining medication from a restricted drugs cabinet for his own personal use without prescription. This had not been disclosed to the IOW Trust. Dr Mtetwa s case was referred to the Interim Orders Panel (IOP) hearing, now referred to as an Interim Orders Tribunal (IOT), by a GMC Case Manager in December Dr Mtetwa attended the hearing on 16 December 2014 when interim conditions were imposed on his registration. 16. The alleged facts of this case relate to Dr Mtetwa s conduct in obtaining a controlled drug for his personal use without prescription, his failure to properly 6

7 disclose the warning he had received to his appraiser at the IOW Trust or the fact that his practice had been, and was, under investigation at the IOW Trust. The alleged facts also relate to Dr Mtetwa s failure to comply with conditions imposed on his registration by the IOP in December 2014 and an IOT in August The GMC alleges that Dr Mtetwa s conduct in failing to disclose relevant information and in making an untrue assertion that he had completed all of his mandatory training was misleading and/or dishonest. 17. The case also relates to concerns that Dr Mtetwa s professional performance was unacceptable in a number of areas as detailed in the GMC Performance Assessment Report, dated 9 December The Tribunal has given careful consideration to all the evidence adduced in this case, both oral and documentary. This included, but was not limited to, Dr Mtetwa s oral evidence and written submissions in addition to witness statements from the following: Dr E, Consultant Oncologist, Royal Derby Hospital (RDH), 29 January 2016 Ms H, Palliative Care Specialist Nurse (Junior Oncology Sister), RDH, 22 March 2016 Dr G, Consultant Anaesthetist, Derby Teaching Hospitals NHS Foundation Trust, 7 January 2016 Ms I, Lead for Clinical Effectiveness and CQUINS (Acting General Manager), Isle of Wight NHS Trust, 7 September 2015 Dr B, Consultant Paediatrician, St Mary s Hospital NHS PCT, Isle of Wight, 8 September 2015 Dr J, Consultant Physician, St Mary s Hospital NHS PCT, Isle of Wight, 14 September 2015 Dr L, Consultant Rheumatologist, Medical Director, St Mary s Hospital NHS PCT, Isle of Wight, 15 September 2015 Dr K, Emergency Medicine Consultant, St Mary s Hospital NHS PCT, Isle of Wight, 18 September 2015 Dr A, Consultant Chemical Pathologist, St Mary s Hospital NHS PCT, Isle of Wight, 21 September 2015 Ms M, Diagnostic Imaging and Lead Cancer Manager, St Mary s Hospital NHS PCT, Isle of Wight, 23 November 2015 Dr C, Consultant in Clinical Oncology & Clinical Lead for Oncology, Ipswich Hospital, 6 February 2016 Dr N, Consultant in Clinical Oncology, Ipswich Hospital, 29 March 2016 Dr O, Consultant Paediatrician, Medical Director & Responsible Officer, Colchester Hospital University NHS Foundation Trust, 20- September 2016 Ms D, Lead Cancer Manager, Colchester Hospital University NHS Foundation Trust, 28 December 2016 Ms P, Investigation Officer, GMC, 13 January

8 19. The Tribunal also heard oral evidence from the following witnesses: Dr E (by telephone) Ms I (by video-link) Dr B (by video-link) Dr J (by video-link) Dr L (by video-link) Dr K (by video-link) Dr A (by video-link) Ms M (by video-link) Dr C (in person) Ms D (by video-link) Ms P (in person) Dr Q, GP and Performance Assessment Team Leader (by telephone and in person) Dr R, Consultant Oncologist and Medical Assessor (in person) Dr F, Consultant Clinical Oncologist and GMC Medical Assessor (by telephone) 20. The Tribunal has taken account of your submissions on behalf of the GMC. These submissions were relayed in writing to Dr Mtetwa. Dr Mtetwa chose to make detailed written submissions in response which the Tribunal received, admitted into evidence and carefully considered. Tribunal approach 21. The Tribunal has borne in mind throughout that the burden of proof rests with the GMC and that the standard of proof is that applicable to civil proceedings, namely the balance of probabilities. This means that a fact will be established by the GMC if the Tribunal finds that it is more likely than not to have occurred. 22. In relation to the allegation of misleading, the Tribunal accepted the Legal Assessor s advice that the word misleading does not imply an intention to mislead but rather should be given its ordinary meaning, namely leading someone to believe something is true when it is not. 23. In relation to the allegation of dishonesty, the Tribunal accepted the Legal Assessor s advice that it should carry out a heightened examination of the evidence and only find dishonesty if there is cogent evidence of dishonesty. In its approach to dishonesty the Tribunal adopted the formulation set out below: whether Dr Mtetwa s conduct would be considered dishonest by the standards of reasonable and honest people and if so whether it is more likely than not that Dr Mtetwa realised that what he was doing was dishonest by those standards. 8

9 Tribunal Findings 24. The Tribunal has considered each paragraph and sub-paragraph of the allegation separately and has made the following findings: Derby Hospitals NHS Trust ( Derby Trust ) 1. On 14 May 2013 you obtained a controlled drug XXX from the restricted drugs cabinet in the Combined Day Unit at the Royal Derby Hospital for your own personal use without prescription has been found proved. Dr Mtetwa agreed in his written and oral evidence to this Tribunal that he had obtained the drug for his own personal use without a prescription. As a consequence of this action he had been the subject of a formal disciplinary process at the Derby Trust, culminating in a hearing on 20 August 2013 at which he was issued with a final written warning. Dr Mtetwa s case was that he would not have taken the controlled drug if he knew that he was violating rules or that it would be viewed as self-prescribing. He said that he wanted to avoid inconveniencing the department by leaving work because he felt unwell. Although Dr Mtetwa does not dispute the allegation before the Tribunal as drafted he does dispute specific factual matters raised in the evidence of the GMC witnesses such as the medicinal reason for taking the medication but as these differences do not form the basis of the allegation it was not necessary for the Tribunal to make a determination on them. The Tribunal found the evidence from the GMC witnesses to be helpful in establishing a timeline of the incident and subsequent investigation. It considered the evidence of Dr E to be credible and that the witness was open in accepting that she couldn t remember details of the incident four years later. Isle of Wight NHS Trust ( IOW Trust ) 2. On 3 April 2014, during an appraisal with Dr A at the Trust, you: a. informed Dr A that your practice had not been restricted or suspended or subject to an investigation, when you knew this was untrue has been found not proved; The evidence of the GMC witnesses, which accords with Dr Mtetwa s evidence, is that Dr Mtetwa began work as a locum at the IOW Trust on 9 December Dr A was appointed as his 9

10 appraiser and on 13 December 2013, he met with Dr Mtetwa to discuss the appraisal process. Dr Mtetwa, who had spent a considerable period of time working as a locum, had never previously been appraised. In his oral evidence Dr A told the Tribunal that the appraisal process is quite an exercise for the doctor, you have to assemble a lot of evidence. In his witness statement Dr K stated that the absence of an appraisal was a serious problem and that they immediately went to great lengths to support him. In fact, the evidence from the clinical and non-clinical IOW Trust witnesses suggests that Dr Mtetwa was put under significant pressure and was not well supported. Examples of this generally include: 1. the fact that Dr L requested a deferral of the revalidation process for six months on 16 December 2013 to reflect the length of time needed to collect data but that Dr Mtetwa continued to be put under pressure wrongly to renegotiate this extension via Mr L as late as 26 February 2014; 2. that Dr Mtetwa was given artificial deadlines to complete a year s worth of mandatory training within the first three months of his employment; 3. that Dr Mtetwa was required to attend fortnightly meetings to monitor his progress towards revalidation which he told the Trust made him feel variously overpowered and over-supervised XXX; 4. that Dr Mtetwa was required to cover a registrar shortage during his SPA time. It was against this background that Dr Mtetwa was asked to participate in an appraisal meeting with Dr A on 3 April 2014, although by this point the Trust had in fact restricted his duties on 14 March 2014 while it investigated clinical concerns at a local level (which were later concluded to be not substantiated) so in fact, as Dr L explained in his oral evidence, the appraisal could not lead to revalidation until the Trust s investigation had been concluded. Paragraph 2(a) of the allegation arises from a statement allegedly made in that meeting by Dr Mtetwa. Dr A, in his witness statement, said: 10

11 I also clearly remember Dr Mtetwa stating to me twice that he had not been restricted or suspended or the subject of any investigation, as this formed part of the appraisal questionnaire. At no point did Dr Mtetwa advise me that he had been placed on restricted duties by the Trust or that he had been issued with a final written warning whilst employed by Derby Hospitals NHS Trust. The only witnesses to the meeting were Dr A and Dr Mtetwa, both of whom gave oral evidence to this Tribunal. It is common ground between them that Dr Mtetwa did not raise the formal disciplinary hearing at Derby or the current investigation at the IOW Trust. Dr Mtetwa s consistent position has been that he was only asked if he was currently the subject of an investigation to which he was overwhelmed and answered no. The GMC submit that Dr A s account of the meeting is clear. The Tribunal does not accept that submission, as Dr A in oral evidence gave a confused and inconsistent account of that meeting and concluded that little weight could be attached to his limited recollection. As already referenced above, Dr A stated that Dr Mtetwa made the alleged dishonest statement twice. In oral evidence, for the first time under questioning from the Tribunal he accepted that there was a specific form to be filled in for appraisals which contained the relevant questions and that Dr Mtetwa had completed the form although this form did not appear in the GMC case and was not part of the evidence before the Tribunal. When asked for the form of words used on the appraisal form Dr A, an experienced appraiser, told the Tribunal that he could not remember saying it was something like have you been subjected to any significant event or subjected to any investigation, possibly. Overall the Tribunal could not be satisfied what Dr Mtetwa had been asked and preferred Dr Mtetwa s account of the meeting, namely: 1. that he believed that he was asked only about investigations which he was currently the subject of; 2. that he was overwhelmed by the process and the difficulties he was experiencing at the IOW Trust and that he answered incorrectly. 11

12 Having considered all the evidence, the Tribunal was not satisfied that Dr Mtetwa knew that his answer was untrue when he gave it. The GMC invited the Tribunal to reject Dr Mtetwa s account and submits that Dr A s account is supported by: 1. the fact that Dr Mtetwa did not correct Dr A s summary of his conclusions on 3 April 2014, to which he was copied; 2. evidence of Dr Mtetwa s apologies given in hard copy to Ms I in July 2014 and sent to Dr A by on 2 August In the letter, Dr Mtetwa apologises for seemingly misleading Dr A regarding the fact that he was under investigation at the IOW Trust. Dr Mtetwa further stated: I was so overwhelmed by the false allegations put forth that the answer, NO to the question easily came out of my mouth without considering the question or understanding the implications involved. I knew I had NOT done all the things I was accused of Once again I am really sorry I hope and pray the Hospital will understand the frame of mind I was in when I answered the Appraiser s question and that they will forgive me for it. The Tribunal had no evidence to suggest that Dr Mtetwa had read and considered Dr A s and concluded that his apology letter was not inconsistent with his version of events. b. failed to disclose that you: i. had been placed on restricted duties as of 14 March 2014 as a result of concerns that had been raised about your clinical assessment, diagnosis, knowledge and behaviour at IOW Trust has been found proved; ii. were currently the subject of an investigation at IOW Trust has been found proved; 12

13 iii. had been issued with a final written warning on 23 August 2013, whilst employed at Derby Trust has been found proved. Despite acknowledging the difficulties around this particular quasi-appraisal process, the Tribunal was satisfied that Dr Mtetwa was under a general obligation to disclose to his appraiser the matters set out above as these were directly relevant to the appraisal of his professional practice. Dr Mtetwa accepts that he failed to do so. Misleading & Dishonest The Tribunal has found that Dr Mtetwa failed to disclose to his appraiser: that he had been placed on restricted duties as of 14 March 2014 as a result of concerns that had been raised about his clinical assessment, diagnosis, knowledge and behaviour at IOW Trust; that he was currently the subject of an investigation at the same Trust and that he had been issued with a final written warning on 23 August 2013, whilst employed at Derby Trust. The Tribunal considered whether Dr Mtetwa s failure to disclose these matters was misleading. It noted that following the meeting, Dr A was left with the impression that Dr Mtetwa had not been involved in any complaint or been the subject of investigation which was not the case. The Tribunal was therefore satisfied that Dr A had been misled. The Tribunal went on to consider whether Dr Mtetwa s failure to disclose these matters was dishonest. The Tribunal noted that these matters were directly relevant to an appraisal of his practice and it considered that by failing to disclose them, Dr Mtetwa had failed to give an accurate account of his performance. The Tribunal noted that the final written warning from the Derby Trust (expiring August 2014) had been issued after a formal disciplinary process. Having considered the evidence the Tribunal was satisfied that failure to disclose these matters would be considered dishonest by the standards of reasonable and honest people. The Tribunal considered whether Dr Mtetwa realised that his conduct was dishonest by those standards. The Tribunal has already set out the background to this appraisal process and 13

14 accepts that the meeting on 3 April 2014 was at a time of significant stress for Dr Mtetwa. The Tribunal accepted Dr Mtetwa s evidence that he believed Dr A was asking about current investigations and not matters that had arisen previously in his practice, and that in relation to the IOW matters he was incorrect rather than untruthful driven by the fact that the investigation was initiated by the same Trust and had begun on an informal footing. Having considered all the evidence, the Tribunal was not satisfied that Dr Mtetwa realised that his conduct as set out in paragraph 2(b) of the allegation would be considered dishonest. 3. On 16 April 2014, during the IOW Trust investigation, you informed the Case Investigation Officer, Dr B, that you had completed all of your mandatory training, when: a. this was untrue has been found not proved; It is common ground that during this meeting on 16 April 2014, Dr Mtetwa informed Dr B that he had completed all of his mandatory training. In his witness statement, Dr B confirmed that he subsequently met with Ms I on 24 April 2014 and was shown a record of Dr Mtetwa s training on the Pro4 web system used to record mandatory training. Dr B stated that the record showed that Dr Mtetwa s compliance rate was just above 60% and that important clinical online modules such as infection control were missing. Dr B explored this further with Dr Mtetwa when he met him again on 8 May 2014 and Dr Mtetwa informed him that Ms I told him that he was not required to complete all the modules. Dr B stated that Dr Mtetwa believed that he had completed all that he was expected to do. Dr Mtetwa in his evidence clarified that he had done 100% of what he understood was required of him. In her witness statement, Ms I confirmed that she had previously informed Dr Mtetwa that she expected to see full mandatory training compliance by 28 February 2014 at the latest. However, it was not clear to the Tribunal what full compliance meant. All of the witnesses from the IOW Trust told the Tribunal that at that time clinical staff met their mandatory training requirement if they achieved a compliance rate of 80%. 14

15 The Tribunal was not provided with a list of the mandatory training that Dr Mtetwa was required to do as of 16 April In fact, the Tribunal heard that the mandatory training programme could be tailored to individuals and that it was possible for certain modules to be removed. Ms I confirmed that following a request from Dr Mtetwa, she had managed to get a couple removed but she could not be specific about the exact date that they had been removed. Ms I accepted in questioning that more than two modules might have been removed. In her oral evidence Ms I confirmed that she did not recall any training being added but that it could be assigned throughout the year and there was no system to alert a doctor that training had been added. Ms I s evidence was lacking in detail and did not provide the Tribunal with a sufficient evidential basis to establish what the mandatory training requirements for Dr Mtetwa at the relevant date were. The Tribunal accepted Dr Mtetwa s evidence that he believed that he had completed 100% of the mandatory training that he was required to do at the time of his meeting with Dr B, and that Dr B himself reiterated Dr Mtetwa s own belief in his compliance in his notes of the May meeting. The Tribunal has been provided with no reliable evidence that would allow it to be satisfied as to what mandatory training Dr Mtetwa was required to have completed by 16 April 2014 and no information as to what was actually outstanding on that date. Taking all of the above into account, the Tribunal is therefore unable to satisfy itself that Dr Mtetwa s statement to Dr B on 16 April 2014 was untrue. b. you knew this was untrue. Not considered in light of the finding in sub-paragraph 3(a) The Ipswich Hospital NHS Trust ( Ipswich ) 4. Following the Interim Orders Tribunal hearing ( IOT ) on 16 December 2014 you failed to: a. notify your Line Manager, Dr C, 24 hours prior to starting work that your registration was now subject to conditions as required by condition 11c has been found proved; On 3 September 2014, Dr Mtetwa began as a locum at Ipswich Hospital, on a placement arranged by his locum agency TXM 15

16 Healthcare. His line manager at the Trust was Dr C. It is common ground between the GMC and Dr Mtetwa that he appeared at an Interim Orders Panel (IOP) on 16 December 2014 and his registration was made subject to interim conditions. Further, both parties agree that Dr Mtetwa did not inform anyone at Ipswich Hospital about those interim conditions. The Tribunal heard oral evidence from Dr C and found him to be a helpful and credible witness who gave useful background information about the way in which Dr Mtetwa worked at Ipswich Hospital. He explained that he had taken an early view that Dr Mtetwa required supervision and provided that in an informal structure by supervising him in Friday clinics. Dr C explained that whilst he could not vouch for the working practices in other Consultants clinics, that the locum service post was one which supported day units and clinics run by named Consultants and was not a stand-alone post. Dr Mtetwa agreed in his evidence that this was the working practice in Ipswich. Under cross-examination he maintained the account that he had advanced in written evidence before this Tribunal and at the IOP review hearing, that he had been confused by the wording of the conditions from the IOP. Dr Mtetwa s case was that he had told his employer, TXM Healthcare when the conditions were imposed and believed that he did not have to inform Ipswich Hospital as he was already in role there and not an employee of the hospital. He believed that condition 4(c) became applicable when he started a new role. b. ensure that your work was supervised by a named Consultant as required by condition 9a has been found proved. It is accepted that Dr Mtetwa did not ensure that his work was supervised by a named Consultant as required by condition 9a. However, Dr Mtetwa stated that he believed that he was compliant with this condition as his work was already being supervised by Dr C. Misleading & Dishonest In relation to paragraph 4(a), the Tribunal considered whether Dr Mtetwa s failure to notify Dr C that his registration was subject to conditions was misleading. The Tribunal was satisfied that it was as Dr 16

17 C was left with the mistaken impression that Dr Mtetwa was free to practise unrestricted. The Tribunal went on to consider whether Dr Mtetwa s failure to notify Dr C that his registration was subject to conditions was dishonest. The Tribunal was satisfied that Dr Mtetwa s failure to disclose his conditions to his Line Manager as required by condition 11(c), would be considered dishonest by the standards of reasonable and honest people. The fact that Dr Mtetwa s registration had been restricted was a matter directly relevant to his practice and the information should have been provided to his line manager. The Tribunal considered whether Dr Mtetwa realised that his conduct was dishonest by those standards. The Tribunal accepted Dr Mtetwa s evidence that he did not think the condition applied to a locum appointment that he was already working in. In doing so, the Tribunal carefully considered the evidence of Dr Mtetwa s state of mind as evidenced by the GMC witnesses and his own account. The Tribunal had particular regard to: 1. the wording of the condition itself which referred to the requirement applying 24 hours prior to starting work and considered that this could be confusing to someone in Dr Mtetwa s position who was currently in work; 2. that following the meeting on 20 January 2015 with Dr C and Ms S, a manager at the Trust, to explore what Dr Mtetwa could do for the hospital were he to be offered a substantive post, Dr Mtetwa arranged and held a conversation with a trusted senior colleague to discuss the issues he had had at the IOW Trust and Derby. This accords with his account that he believed that the condition became effective when a new permanent role was to be offered; 3. that he maintained a consistent account at the IOP review hearing which appears to have been accepted in the IOP s risk assessment. Dr Mtetwa stated that he believed that his responsibility was to notify his agency, which he did. The Tribunal was therefore not satisfied that Dr Mtetwa realised that his failure to notify Dr C of his conditions was would be considered dishonest. In relation to paragraph 4(b), the Tribunal considered whether Dr Mtetwa s failure to ensure that his work was supervised by a named 17

18 Consultant was misleading. The Tribunal was satisfied that it was as the Trust was left with the impression that nothing had changed with Dr Mtetwa s practice when in fact he was required to have a named supervisor. The Tribunal went on to consider whether Dr Mtetwa s failure to ensure that his work was supervised by a named Consultant was dishonest. The Tribunal was satisfied that Dr Mtetwa s failure to ensure that his work was supervised by a named Consultant would be considered dishonest by the standards of reasonable and honest people. The restriction was put in place to ensure that Dr Mtetwa was practising safely and it was important that the Trust was aware of it. The Tribunal considered whether Dr Mtetwa realised that his conduct was dishonest by those standards. The Tribunal accepted Dr Mtetwa s evidence that, as his work was already being supervised by a Consultant, he believed that he was compliant with the condition. This is supported by his to the GMC, dated 7 January 2015, in which he informs Ms P that he already had a supervisor. In subsequent correspondence Dr Mtetwa asks whether the GMC would be arranging a supervisor for him as he had got the impression that he would not be able to choose the right one. The Tribunal was satisfied that Dr Mtetwa s queries were consistent with him being confused and not understanding his precise obligations. In the circumstances, the Tribunal was not satisfied that Dr Mtetwa realised that his failure to ensure that his work was supervised by a named Consultant would be considered dishonest. Colchester Hospital University NHS Foundation Trust ( Colchester ) 5. On 8 June 2016 you commenced working at Colchester Hospital. You failed to: a. notify the GMC of the post that you had accepted at Colchester Hospital, prior to starting this position as required by Condition 2a has been found proved; b. ensure that your work was supervised by a clinical supervisor that had been approved by your responsible officer (or their nominated deputy) as required by condition 5a and 5b has been found proved; 18

19 c. inform your immediate line manager at Colchester Hospital of your conditions at least one working day before starting work as required by condition 7c has been found proved. It is accepted that Dr Mtetwa failed to comply with the conditions imposed on his registration as set out above. Misleading & Dishonest The evidence before the Tribunal about Dr Mtetwa s start date at Colchester was contradictory. Dr Mtetwa informed the Tribunal that the arrangements for him starting at Colchester were made over the weekend by his agency Pertemps and his intention was to start work on the Monday and find out details of his Responsible Officer which he would then send to the GMC ASAP. The letter supplied to the Tribunal by Dr Mtetwa from his agency suggests a Tuesday start date was arranged. The evidence from the GMC witnesses was that Dr Mtetwa began on the Wednesday. Nevertheless both parties are in agreement that Dr Mtetwa did not notify Colchester of the applicable conditions before starting employment. Dr Mtetwa agreed that he had complied with his conditions in previous locum posts at Barnes, Isle of Man, Kingston and Norwich and the Tribunal saw evidence of communication with the GMC for these posts. The GMC suggests that this previous compliance illustrates that Dr Mtetwa understood his conditions and was dishonest in not notifying Colchester. Dr Mtetwa s case is, variously: 1. that the timing and urgency of the Colchester offer was such that he had no time or necessary details to notify the GMC immediately and that he thought that the GMC would understand; 2. Dr Mtetwa believed that he had seven days in which to notify the GMC of his new post in line with condition 1 on his registration which stated: You must notify the GMC within seven calendar days of the date these conditions become effective of the details of your current post, including your job title, job location and responsible officer ; 19

20 3. that his agency, Pertemps, had already told the hospital of the conditions and provide a copy of the conditions in writing to the hospital. The Tribunal considered whether Dr Mtetwa s failure to make the appropriate arrangements in advance of commencing work at Colchester was misleading. The Tribunal was satisfied that Dr Mtetwa had a duty to comply with the conditions imposed on his registration and the fact that he did not do so meant that Colchester was misled. The Tribunal went on to consider whether Dr Mtetwa s failure to make the appropriate arrangements in advance of commencing work at Colchester was dishonest. The Tribunal was satisfied that Dr Mtetwa s failure to comply with conditions imposed on his registration would be considered dishonest by the standards of reasonable and honest people. The Tribunal considered whether Dr Mtetwa realised that his conduct was dishonest by those standards. The Tribunal did not accept Dr Mtetwa s evidence that he had no time in which to send an to the GMC during the period 8 to 13 June, although it did accept that as a new locum starting a role in a new Trust he would have needed help to identify his clinical supervisor. The Tribunal however did accept that Colchester hospital had already been made aware of Dr Mtetwa s conditions before offering the job. The Tribunal heard oral evidence from Ms D, Lead Cancer Manager, who confirmed that the hospital had twice been sent a full copy of the conditions, once in April 2016 when the hospital decided to reject his application in light of the conditions and then again in June 2016 when a number of consultants had debated the application and ultimately decided to offer Dr Mtetwa a short term post, on the condition that they could terminate his employment with a short notice period if it didn t work out. Owing to the way in which Dr Mtetwa s conditions were displayed on the GMC website the hospital wrongly concluded that they were due to expire on 15 June The Tribunal formed the view, after hearing from Ms D that the hospital had no specific plan to manage Dr Mtetwa s interim conditions, that they were keen to employ him as they were short staffed and were not overly concerned about the practical management of the conditions which they believed had only seven days until expiry. 20

21 Dr Mtetwa s agency confirmed they had supplied the requisite information in advance of the Colchester application. This was confirmed in an to the GMC, dated 7 July 2016, from Ms T of First Medical. Ms T stated that Colchester had wrongfully accused Dr Mtetwa of not informing them of his conditions. Ms T also stated that she had contacted Dr Mtetwa on the seventh day of his employment at Colchester to ask whether he had made the GMC aware that he was working at Colchester. She stated that Dr Mtetwa told her that he had a seven day grace period and that he planned to do it over lunch that day. The Tribunal considered that this was evidence of what appears to be a pattern of misunderstanding on Dr Mtetwa s part as to what he should be doing to comply with the conditions. The Tribunal was not satisfied that Dr Mtetwa had set out to deceive anyone as it was of the opinion that he had a reasonable belief that the Trust was already aware of his conditions. Having considered all the evidence the Tribunal was not satisfied that Dr Mtetwa realised that his failure to comply with his conditions as set out above would be considered dishonest. 6. In relation to your omissions referred to at paragraphs 4 and 5 above you were aware that those conditions had been placed on your registration has been found proved. The Tribunal noted that Dr Mtetwa had been present at the IOP and IOT hearings when the conditions were placed on his registration. It was therefore satisfied that he was aware that the conditions had been imposed on his registration. Misleading & Dishonest This does not appear to add anything to the existing allegation. The evidence establishes, and the Tribunal so finds, that Dr Mtetwa was aware that those conditions had been placed on his registration. The Tribunal has already determined in relation to the notification matters alleged in paragraphs 4 and 5 that they were misleading but not dishonest. 7. Your actions and/or omissions as described at paragraphs 2 6 above were: a. misleading has been found proved in relation to paragraphs 2, 4 and 5. 21

22 b. dishonest has been found not proved in relation to paragraphs 2, 4, 5. Performance Assessment As stated above the Tribunal has considered each paragraph and sub-paragraph of the allegation separately. It has also accepted the advice of the Legal Assessor and looked at the evidence relating to a number of allegations as a whole in order to cast light on the evidence relating to individual allegations. In doing so the Tribunal was satisfied that a clear pattern emerged in relation to the dishonesty paragraphs in that all the evidence establishes that Dr Mtetwa was clearly confused in relation to his precise obligations under the conditions. This is supported by the s passing between Dr Mtetwa and the GMC. Having considered all the evidence the Tribunal was not satisfied that there was cogent evidence on which to make findings of dishonesty. 8. You underwent a General Medical Council assessment of the standard of your professional performance on: a April 2016 (peer review) has been found proved; b. 30 September 1 October 2016 (tests of competence) has been found proved. The Tribunal has been provided with a copy of the Performance Assessment Report, dated 9 December 2016, which confirms that the assessment took place in two phases as set out above. 9. Your professional performance was unacceptable in the following areas: a. Maintaining Professional Performance has been found proved; b. Assessment of Patients Condition has been found proved; c. Clinical Management has been found proved; d. Record Keeping has been found proved; e. Relationships with Patients has been found proved; 22

23 f. Working with Colleagues has been found proved. The Tribunal had concerns about some aspects of the performance assessment, for instance the lack of oncology comparators in the OSCE stations, the age of the reference group, the fact that the Oncology assessors were not always present during Third Party Interviews (TPIs) with Dr Mtetwa s Oncologist colleagues, and the extraneous background information on Dr Mtetwa provided to the Assessors in advance. The Tribunal noted that some TPIs were conducted with interviewees who did not have first-hand experience of Dr Mtetwa s work. It considered that at times the Assessors placed an over-reliance on the views of Dr U whose knowledge of the doctor was, by his own admission, limited. When questioned during their oral evidence the Assessors were clear that they believed that Dr U was hiding something from them although he had never said this. Dr U openly admitted that he had strong feelings about Dr Mtetwa which differed from those of his colleagues. Notwithstanding this, the Assessors appeared to prefer his evidence. The Tribunal did not accept that all the examples given as unacceptable were necessarily relevant to those categories or supported by the evidence heard. The Assessors acknowledge that there were positive reports about Dr Mtetwa s relationship with patients and there is evidence before the Tribunal, such as references, to indicate that Dr Mtetwa was well-liked by patients generally. The Tribunal was of the opinion that it was Dr Mtetwa s lack of knowledge in certain areas that resulted in him being unable to communicate effectively with patients in some situations, rather than there being an issue with his communication skills generally. Despite the Tribunal s concerns regarding some aspects of the performance assessment, nevertheless it accepted the assessments of unacceptable performance set out above which were supported by the OSCE test results, the knowledge test results and to a large extent by the medical records review. 23

24 Determination on application to re-open the fact finding stage 18/01/2018 Mr Sephton: 1. This hearing adjourned part-heard on 20 October 2017, following the announcement of the Tribunal s determination on facts. In that determination the Tribunal, on your submission, and repeated in the advice of the Legal Assessor, applied the dishonesty test in R v Ghosh. Namely: whether Dr Mtetwa s conduct would be considered dishonest by the standards of reasonable and honest people and if so whether it is more likely than not that Dr Mtetwa realised that what he was doing was dishonest by those standards. 2. The Tribunal made no findings of dishonesty using the above test. 3. At the outset of this reconvened hearing you informed the Tribunal that you wished to make an application for the Tribunal to re-open the fact finding stage of proceedings on the basis that the law relating to dishonesty has changed in a manner that is likely to affect the outcome of this case. You referred the Tribunal to the recent Supreme Court judgment in the case of Ivey v Genting Casinos (UK) Limited [2017] UKSC 67 handed down on 25 October 2017, after this Tribunal had announced its determination on Facts. In the judgment Lord Hughes held that the second leg of the test propounded in Ghosh does not correctly represent the law and that directions based upon it ought no longer to be given. At paragraph 74 he set out the correct test, which is as follows: When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest. 4. You submitted that it is clear that Ivey applies in proceedings before a Medical Practitioners Tribunal (MPT) and that, in the light of the Ivey judgment, the Tribunal had made an erroneous decision in law when making its findings in relation to dishonesty. You further submitted that a determination in which a MPT uses the Ghosh test will inevitably be remitted for reconsideration on appeal and you 24

25 referred the Tribunal to the recent appeal case of GMC v Krishnan [2017] EWHC 2892 (Admin). 5. The Tribunal does not intend to rehearse the detail of that particular case, suffice to say that Judge Sycamore concluded that the decision of the MPT in relation to dishonesty, which was based on a Ghosh direction, was acknowledged to have been the wrong test at the time of appeal. Judge Sycamore quashed the Tribunal decision that Dr Krishnan had not been dishonest and remitted the case to the same Tribunal to re-determine the issue of dishonesty, together with the question of impairment and sanction. 6. The Tribunal asked you to address it specifically on the question of whether the Tribunal has jurisdiction to re-open the fact finding stage once its findings have been announced. In response you submitted that it has an inherent jurisdiction to remedy an error of law. 7. In response to a Tribunal question, you informed the Tribunal that you had been unable to find any authority to support your submission in relation to the Tribunal s jurisdiction. However, you submitted that this case was analogous to the case of TZ v GMC [2015] EWHC 1001 (Admin) in which Mr Justice Gilbart concluded that a Tribunal had the discretion to admit fresh evidence between closing speeches and the announcement of the determination on Facts. You accepted that the fact finding stage in this case had been concluded when this Tribunal announced its decision on Facts on 20 October Dr Mtetwa was notified of your proposed application in advance of this reconvened hearing and was provided with a copy of your written submissions. At the outset of the hearing, Dr Mtetwa was contacted by the Legal Assessor, by telephone, in your presence and that of the Tribunal Clerk. Dr Mtetwa indicated that he would need more time to consider the written submissions and the judgment in the case of Ivey, specifically overnight. He was allowed this time and he provided a written response to the application in which he stated that he would not contest or say anything in connection with the GMC plans to appeal to MPTS about the Ivey or Ghosh. [sic] Legal advice 9. The Tribunal accepted the advice of the Legal Assessor that it had, through no fault of its own, applied an incorrect test in respect of its findings in relation to dishonesty. 10. The Legal Assessor advised the Tribunal he had not identified any case law which permitted it to re-open its findings of fact following the announcement of its determination of Facts. He gave comprehensive advice on the case law cited before the Tribunal, noting the ways in which it was not directly analogous to the issue at 25