PUBLIC RECORD. Record of Determinations. Medical Practitioner: Dates: 01/11/ /11/ /04/ /04/2018. GMC reference number:

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1 PUBLIC RECORD Dates: 01/11/ /11/ /04/ /04/2018 Medical Practitioner s name: GMC reference number: Mr Mohammed SAIT Primary medical qualification: Type of case New - Misconduct MB BS 1986 University of Madras Outcome on impairment Impaired Summary of outcome Suspension, 3 months. Review hearing directed Tribunal: Lay Tribunal Member (Chair) Lay Tribunal Member: Medical Tribunal Member: Mrs Valerie Paterson Mr John Kelly Dr Richard Bateman Legal Assessor: Tribunal Clerk: Mr Alexander Jacobs: (01/11/ /11/2017 am and 06/11/ /11/2017) Mr Peter Jennings: (03/11/2017 pm) Mr Charles Thomas: (16/04/ /04/2018) Ms Sarah Ryan Attendance and Representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Present and represented Mr Mark Sutton, QC, instructed by CMS Cameron McKenna Nabarro Olswang LLP Mr Mark Aldred, Counsel (16-19 April 2018 only) Mr Paul Raudnitz, Counsel (20 April 2018 only) 1

2 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. Overarching Objective Throughout the decision making process the Tribunal has borne in mind the statutory overarching objective as set out in s1 Medical Act 1983 (the 1983 Act) to protect, promote and maintain the health, safety and well-being of the public, to promote and maintain public confidence in the medical profession, and to promote and maintain proper professional standards and conduct for members of that profession. Determination on Facts - 17/04/2018 Background 1. Mr Sait qualified in 1986 in India. Prior to the events which are the subject of the hearing Mr Sait achieved a LLM in medical law from the University of Cardiff and an MSc in orthopaedics from Stanmore (London University). He became a Fellow of the Royal College of Surgeons, Edinburgh and achieved the FRCS Orth in Mr Sait undertook his specialist training in orthopaedics at Guy's and St. Thomas' Orthopaedic Rotation in London. In 2000, Mr Sait was included into the specialist register of the GMC. 2. At the time of the events Mr Sait was practising as a Consultant Orthopaedic Surgeon at Darent Valley Hospital, Dartford, Kent ( DVH ) and at BMI Fawkham Manor ( the Hospital ). 3. The allegation that has led to this Tribunal can be summarised as misconduct relating to Mr Sait s care of two patients, identified as Patient A and Patient B throughout these proceedings. It is alleged that Mr Sait acted in a sexually motivated manner towards these patients. It is further alleged that Mr Sait falsely recorded that Patient A had refused a chaperone during a consultation and that this action was misleading and dishonest. The Outcome of Applications Made during the Facts Stage 4. The Tribunal granted the GMC s application, made pursuant to Rule 34(1) of the General Medical Council (Fitness to Practise Rules) 2004 as amended ( the 2

3 Rules ), to admit a witness statement and enclosures into evidence. The Tribunal s full decision on the application is included at Annex A. 5. The Tribunal granted Mr Sutton s application, made pursuant to Rule 34(1) of the General Medical Council (Fitness to Practise Rules) 2004 as amended ( the Rules ), to admit two visual aids into evidence. The Tribunal s full decision on the application is included at Annex B. 6. The Tribunal heard evidence from a number of witnesses by videolink and, in the case of Patient A, evidence that was given behind a witness screen. These provisions were granted under Rule 34(13) and (14) of the Rules. The Allegation and the Doctor s Response 7. The Allegation made against Mr Sait is as follows: Patient A 1. On 29 April 2016 you examined Patient A at the BMI Fawkham Manor ( the Hospital ) and you: a. asked Patient A to unclip her bra whilst examining her back when there was no clinical reason to do this; To be determined b. continued to examine Patient A when her bra was not fastened; Admitted and found proved c. re-fastened Patient A s bra; To be determined d. made a diagnosis of sacroiliitis when there was no documented clinical evidence to support this diagnosis; To be determined e. administered a cortisone injection without any form of image guidance, when not clinically justified; To be determined f. failed to refer Patient A to a specialist in order to perform the administration of the cortisone injection under image guidance; To be determined g. failed to offer a chaperone to Patient A prior to, or at any time during, the examination. To be determined 3

4 2. Your actions as set out at paragraphs 1a and 1b above were sexually motivated. To be determined 3. Following the examination as set out in paragraph 1 you falsely recorded in Patient A s records that she refused your offer of a chaperone. To be determined 4. Your action in paragraph 3 above was: a. misleading; To be determined b. dishonest. To be determined 5. On 4 May 2016 you consulted with Patient A at the Hospital and you: a. when there was no clinical reason to do so: i. asked Patient A about previous chest pain; To be determined ii. examined Patient s A chest; To be determined iii. performed a breast examination; To be determined b. failed to offer a chaperone to Patient A prior to, or at any time during the examination; To be determined c. failed to give Patient A an adequate explanation for why you were examining her chest; To be determined d. told Patient A on one or more occasion that her mother was a really beautiful lady, or words to that effect; To be determined e. told Patient A that she was beautiful, or words to that effect; To be determined f. administered a cortisone injection without any form of image guidance. Admitted and found proved 6. Your actions as set out at paragraphs 5aii 5aiii, 5d and 5e above were sexually motivated. To be determined 7. You failed to provide the Hospital with a full copy of Patient A s medical records. To be determined 4

5 Patient B 8. Between September 2014 and May 2016, on one or more occasion(s) during consultations with Patient B you told her that she was pretty, or words to that effect. To be determined 9. On 18 April 2016 you said to Patient B that you could telephone her to discuss her marital problems further. To be determined 10. On 9 May 2016, you: a. telephoned Patient B and asked her to meet you at the Eynsford Plough Public House ( the Pub ); To be determined b. met Patient B at the Pub and you told Patient B: i. that she was very pretty, or words to that effect; To be determined ii. to consider divorcing her husband, or words to that effect; To be determined iii. not to tell her husband that she had met you at the Pub; To be determined iv. that your wife did not know that you were meeting with Patient B at the Pub; To be determined v. that you had met with other patients outside of work and not told your wife about this; To be determined c. asked Patient B to go with you to your car; To be determined d. hugged Patient B; To be determined e. kissed Patient B on the cheek. To be determined 11. Your actions as set out at paragraphs 8-10 above were sexually motivated. To be determined 5

6 The Admitted Facts 8. At the outset of these proceedings and through his counsel, Mr Sutton QC, Mr Sait admitted paragraphs 1(b) and 5(f) of the Allegation, as set out above, in accordance with Rule 17(2)(d) of the Rules. In accordance with Rule 17(2)(e) of the Rules, the Tribunal announced these sub-paragraphs of the Allegation as admitted and found proved. The Facts to be Determined 9. In light of Mr Sait s response to the Allegation made against him, the Tribunal was required to determine whether Mr Sait acted in the alleged manner towards Patient A and Patient B, and whether this was sexually motivated. It was also required to determine whether Mr Sait made a false record in Patient A s records, and if found proven, whether this action was misleading and/or dishonest. Factual Witness Evidence 10. The Tribunal received witness statements and oral evidence on behalf of the GMC from the following witnesses: Patient A; Patient B; and Mr A. 11. These witnesses gave their evidence in person. 12. The Tribunal also received evidence on behalf of the GMC, in the form of witness statements, from the following witnesses who were not called to give oral evidence: Mr C, Consultant Orthopaedic Surgeon at Darent Valley Hospital, dated 6 February 2017; and Mr D, Investigator for AXA PPP Healthcare, dated 17 January 2017; 13. Mr Sait provided his own witness statement, dated 2 October 2017, and also gave oral evidence at the hearing. In addition the Tribunal received oral evidence by videolink, and witness statements and/or testimonial letters, from the following witnesses on Mr Sait s behalf: 6

7 Mrs E, Clinic Nurse at Dartford and Gravesham NHS Trust; Mrs F, Registered Nurse at DVH; and Dr G, former Clinical Director at DVH. Expert Witness Evidence 14. The Tribunal also received expert witness evidence from Mr H and Mr I. Mr H was called on behalf of the GMC and Mr I was called on behalf of Mr Sait. Mr H is a Consultant Orthopaedic and Trauma Surgeon and Mr I is a Consultant Orthopaedic Spinal Surgeon. Their evidence was directed at assisting the Tribunal in understanding: a) the professional standards to be expected of a Consultant in Trauma and Orthopaedics; and b) whether the care provided by Mr Sait to Patient A fell below the expected standard. 15. Mr H produced an expert report dated 1 March 2017 and two addendum reports dated 6 June 2017 and 6 October 2017, respectively. Mr I produced an expert report dated 6 October Both experts gave evidence in person at the hearing. Documentary Evidence 16. The Tribunal had regard to the documentary evidence provided by the parties. This evidence included, but was not limited to: Selective medical records of Patient A; Selective medical records of Patient B; GMC witness statement of Mrs E dated 4 April 2017; Testimonial letter of Mrs F dated 21 August 2017; and Testimonial letter of Dr G dated 18 August The Tribunal s Approach 17. In reaching its decision on facts, the Tribunal has borne in mind that the burden of proof rests on the GMC and it is for the GMC to prove the Allegation. Mr Sait does not need to prove anything. The standard of proof is that applicable to civil proceedings, namely the balance of probabilities, i.e. whether it is more likely than not that the events occurred. 7

8 18. It is alleged in paragraphs 1(f), 1(g), 5(b), 5(c) and (7) of the Allegation that there was a failure to act by Mr Sait. The Tribunal reminded itself that before any such paragraph could be found proved, the Tribunal would first have to be satisfied that there was a duty to act. 19. It is alleged that Mr Sait s actions in relation to paragraph 3 of the Allegation were misleading. The Tribunal adopted the definition of misleading as: to cause someone to believe something is true when it is not true. 20. It is alleged that Mr Sait s actions in relation to paragraph 3 of the Allegation were dishonest, the Tribunal adopted the test for determining dishonesty which is set out in the case of Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent) [2017] UKSC 67, which states: 1. 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. 2. 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. The Tribunal s Analysis of the Evidence and Findings 21. The Tribunal has considered each outstanding paragraph of the Allegation separately and has evaluated the evidence in order to make its findings on the facts. Paragraph 1(a) 22. At the outset of the hearing, Mr Sait accepted the stem of the charge in that he accepted that on 29 April 2016 he examined Patient A at the Hospital. 23. In her written and oral evidence, Patient A stated that she visited Mr Sait with Mr A for a consultation regarding her lower back pain. She had seen two previous consultants whose diagnoses she was dissatisfied with and so, had self-referred to Mr Sait for a third opinion. 8

9 24. Having regard to the evidence, the Tribunal was satisfied that the consultation on 29 April 2016 had taken place and that its purpose was to discuss the cause of Patient A s lower back pain. 25. In her written and oral evidence, Patient A stated that she was asked by Mr Sait to remove her clothes except her underwear and unclip her bra during an examination of her back. This is supported by the written and oral evidence of Mr A. 26. Mr Sait stated in his oral evidence that he asked Patient A to undress to her underwear as it was textbook orthopaedic practice to examine the joint above and joint below the area of examination. He accepted that he asked Patient A to unclip her bra whilst examining her back. He disputed that there was no clinical reason to do so. In his written and oral evidence, Mr Sait stated that he noted a curve in Patient A s spine under her bra strap. He stated that he asked her to unclip the strap in order to palpate the spine properly for scoliosis and perform the Adams Forward Bend Test. 27. Mr H, in his expert report and oral evidence, stated that it was neither necessary or appropriate for Mr Sait to ask Patient A to unclip her bra, as it was possible to adequately visualise and palpate the spine without doing so. 28. In contrast, Mr I stated that a proper examination of the spine for scoliosis requires full exposure of the spine. In his expert report he stated: In many cases the underwear or bra does not impede examination. There are cases, however, where the nature of the garment or the subtlety of the spinal deformity mandate at least the unfastening of the back strap. It should be said that a thorough examination is of even more importance where a third opinion is being sought and especially where there is dissatisfaction with previous diagnostic efforts which seems to have been the case on this occasion. 29. Having regard to the above, the Tribunal determined that Mr Sait s evidence, together with the opinion of Mr I, provided sufficient clinical justification for why Patient A s bra strap needed to be unclipped. The Tribunal paid particular attention to the fact that this was a third medical opinion that was being sought by Patient A. 30. Accordingly, the Tribunal found paragraph 1(a) of the Allegation not proved. 9

10 Paragraph 1(c) 31. Patient A stated in her written and oral evidence that she was asked by Mr Sait to bend forward and touch her toes. On bending, her bra fell to the floor as the strap was unclipped. Patient A stated that she picked the bra up and tried to hold it up to her chest with one hand and fasten with the other. She said in her witness statement: I think Mr Sait could see that I was struggling to do my bra up and said something like let me do that up. I turned around slightly at that point and he fastened my bra up for me. 32. Patient A s evidence on the words alleged to have been used by Mr Sait is supported by Mr A s written and oral evidence. 33. Mr Sait disputed that he used those words, or words to that effect, and disputed that he fastened Patient A s bra. In his oral evidence, he stated that he did not recollect Patient A s bra falling to the ground. He also stated that once the examination was complete, he left the consultation area and allowed Patient A to get dressed. 34. The Tribunal determined that it preferred the evidence of Patient A and Mr A. It considered the possibility that their individual recollections could have been affected by the fact that they had jointly discussed the consultation after it had concluded. However, it found that both witnesses were credible and consistent on this matter, even when challenged in their oral evidence. The Tribunal was therefore satisfied that Patient A and Mr A presented an accurate, detailed account of events surrounding this specific visit. Accordingly, it found paragraph 1(c) of the Allegation proved. Paragraph 1(d) 35. The Tribunal had regard to the letter from Mr Sait to Patient A s general practitioner ( GP ) dated 29 April 2016, which stated: She [Patient A] has clear evidence of bilateral sacroiliitis and I have injected her right sacroiliac joint. 36. It also had regard to Mr Sait s handwritten note of the 29 April 2016 consultation which read: Tender BIL SIJ. In his oral evidence, Mr I told the Tribunal that this was short for tender bilateral sacroiliac joint. 10

11 37. Mr Sait accepted that he made the diagnosis of bilateral sacroiliitis, but disputed that there was no documented clinical evidence to support it. He stated in his witness statement that he diagnosed tenderness in the area of the sacroiliac joint. 38. The medical experts agreed that Mr Sait made an incorrect diagnosis. Mr H, in his written and oral evidence, said that sacroiliitis is a specific condition that requires specific investigations in order to be diagnosed, none of which were carried out by Mr Sait. Mr I stated that the diagnosis ought to have been in the category of myofascial tenderness or triggerpoint. The experts agreed that the results of the MRI and X-rays undergone by Patient A were normal and that there was no documented evidence to support the diagnosis. 39. However, in his written and oral evidence, Mr I stated that there is a common understanding in the medical profession that references to the sacroiliac joint proper are often, in fact, references to the area surrounding the joint. Mr I told the Tribunal that this terminology was unhelpful but common, and that Patient A s GP would have likely understood that Mr Sait was referring to the region of the joint. The Tribunal accepted this evidence and therefore found paragraph 1(d) of the Allegation not proved. Paragraph 1(e) 40. Mr Sait accepted that he administered a cortisone injection without any form of image guidance. He disputed that this was not clinically justified. In his evidence, he stated that the injection was administered to the region surrounding the joint, not the joint itself, and that image guidance was therefore not necessary. 41. In her witness statement, Patient A stated: I had previously been offered injections by the other consultants but that would have been into the L5 facet joint in theatre; Mr Sait said there was no need for me to have a cortisone injection into my facet joint in theatre, he said a cortisone injection into my lower back would suffice, rather than the joint specifically. I felt reasonably comfortable in letting him do the injection because he had operated on my mum and I felt she d been looked after by him, so I agreed to the injection. 42. In his expert report, Mr I stated: 11

12 It is inconceivable that a trigger point injection could be given in this way if there was an area of well localised myofascial tenderness. There is little chance of an injection entering the sacroiliac joint without image guidance. The posterior ligament complex of the sacroiliac joint could be injected at least in part without guidance. In this case I believe that a superficial tender swelling was being treated rather than the sacroiliac joint proper. In this case the treatment was appropriate. 43. In his expert report, Mr H said that the medical documentation clearly reflects that an attempt was made to administer the injection into the joint. He further stated that to simply change the wording of what is written in the clinical evidence, simply to provide credibility to such a proposition, is in my opinion wrong. 44. The Tribunal was mindful of the dispute between the experts as to what was documented, its meaning and what actually took place during the consultation. Both Mr Sait and Patient A agreed that a cortisone injection was administered. However, the Tribunal noted that paragraph 1(e) does not make reference into where on Patient A s body the injection was allegedly administered. Mr I s evidence was that it was appropriate for the injection to be administered in the clinic without image guidance as, for the reasons set out in paragraph 39 of this determination, it was not an injection into the sacroiliac joint proper. The Tribunal accepted Mr I s evidence and therefore determined that it was clinically justified for Mr Sait to administer the injection without image guidance. Accordingly, it found paragraph 1(e) of the Allegation not proved. Paragraph 1(f) 45. Mr Sait accepted that he did not refer Patient A to a specialist in order to perform the administration of the cortisone injection under image guidance. He disputed that this was a failure. It was his evidence that it was appropriate for the injection to be administered in the clinic without image guidance, and therefore it did not require a specialist referral. 46. The Tribunal has found it not proved that Mr Sait administered a cortisone injection when it was not clinically justified. It accepted the expert evidence of Mr I that it was appropriate for the injection to be administered without image guidance. In his report, he stated: 12

13 If the intention was in fact, as it seems from the notes, to treat an area of superficial swelling and tenderness, then an injection of the point in question can reasonably be performed in clinic. 47. In contrast, Mr H s evidence reflected the opinion that Mr Sait had attempted to inject the sacroiliac joint proper, an action that was outside his area of specialist interest and required a specialist referral. 48. The Tribunal determined that Mr H s opinion reflected a literal reading of the patient records, whereas Mr I s opinion reflected a more common understanding in wide use within the medical profession of the term sacroiliac joint. Having accepted Mr I s interpretation of the notes in relation to paragraph 1(e), the Tribunal was satisfied that it could also be accepted on this matter. 49. Taking the above into account, the Tribunal determined there was insufficient evidence to establish that there was a duty on Mr Sait to refer Patient A to a specialist for this procedure. It therefore found paragraph 1(f) of the Allegation not proved. Paragraph 1(g) 50. Patient A, in her written and oral evidence, stated that she was not offered a chaperone at any time during the consultation. Mr Sait disputed this and stated that a chaperone was offered and refused by Patient A. He stated in his oral evidence that it is his standard practice to offer a chaperone. 51. Both experts agreed in their oral evidence that a chaperone was not required in this consultation. In his original expert report, Mr H stated: Hospital policies vary on this and my interpretation of the evidence is that no 100% requirement for such a chaperone was required at the time of Mr Sait s consultation with Patient A 52. Having regard to the above, the Tribunal determined that there was insufficient evidence to establish that there was a duty on Mr Sait to offer a chaperone to Patient A. It therefore found paragraph 1(g) of the Allegation not proved. 13

14 Paragraph 2 in relation to paragraphs 1(a) and 1(b) 53. The Tribunal did not consider whether Mr Sait s actions in relation to paragraph 1(a) were sexually motivated, as it had found that paragraph not proved. Accordingly, it found paragraph 2 in relation to paragraph 1(a) of the Allegation not proved. 54. It has been admitted and found proved that Mr Sait continued to examine Patient A when her bra was not fastened. Mr Sait s evidence is that his examination comprised of his palpation of Patient A s spine and the Adams Forward Bend Test, which was conducted in order to test for scoliosis and required Patient A s bra to be unfastened. 55. The Tribunal has found that Mr Sait had a clinical justification for asking Patient A to unclip her bra, in that it was required for an examination of Patient A s spine. Given these findings, the Tribunal was not satisfied that, by continuing to examine Patient A when her bra was not fastened, Mr Sait s actions were sexually motivated. It was mindful of Patient A s evidence that she felt embarrassed and uncomfortable during the examination, and determined that this was understandable. However, while the way in which the examination was organised and communicated to Patient A could have been better, the Tribunal determined that it was nevertheless appropriate. It therefore found paragraph 2 in relation to paragraph 1(b) of the Allegation not proved. Paragraph The Tribunal considered whether, regardless of the absence of a duty or not to offer one, the record of a chaperone being offered and refused was a false entry made by Mr Sait following the examination. The Tribunal assessed the credibility of the witnesses and the likelihood of their account based on the balance of probabilities. 57. It is Mr Sait s evidence that Patient A was offered and refused a chaperone, and that this was accurately reflected in the handwritten medical record dated 29 April Both Patient A and Mr A stated that Patient A did not refuse a chaperone as it was not offered at any point during the consultation. 58. The Tribunal determined that, on the balance of probabilities, Mr Sait s recollection of the events was an accurate one. It noted the difference in oral and written evidence on this point between Mr Sait and Patient A and Mr A. However, the Tribunal had regard to the contemporaneous record made by Mr Sait to the 14

15 effect that a chaperone had been offered and refused on this occasion. This note supports the account given by Mr Sait and, in the absence of any evidence to suggest that it was not contemporaneous, the Tribunal accepted this as an accurate note. Additionally, the Tribunal noted that Patient A and Mr A were taken aback by Mr Sait s request for Patient A to undress to her underwear, as this was not requested by the other consultants they had attended. It considered that this distraction may have affected the quality of their recollection of events at this stage. 59. Taking all of the above into account, the Tribunal found paragraph 3 of the Allegation not proved. Paragraph 4 in relation to paragraph The Tribunal did not consider whether Mr Sait s actions in relation to Paragraph 3 were misleading and/or dishonest, as it had found that paragraph not proved. Accordingly, it found paragraphs 4(a) and 4(b) in relation to paragraph 3 of the Allegation not proved. Paragraph 5(a)(i) 61. At the outset of the hearing, Mr Sait accepted the stem of the charge in that he accepted that on 4 May 2016 he consulted with Patient A at the Hospital. In her written and oral evidence, Patient A stated: I decided to go back to see Mr Sait even though I d felt uncomfortable because he had sorted the pain on one side and I just wanted it done and dealt with. I didn t want to go see another different consultant and spend more time and energy looking for someone else to inject the other side. I was fed up at this stage with the back issues and pain and just wanted it dealt with so I could focus on my personal life. 62. The Tribunal was satisfied from the evidence that the consultation on 4 May 2016 took place and that the purpose was for Patient A to receive a second cortisone injection. 63. There is a stark contrast in the evidence as to who asked about Patient A s previous chest pain. It is Patient A s evidence that Mr Sait initiated the discussion. In her witness statement, she stated: 15

16 Mr Sait then said to me have you ever suffered with chest pains? I said that yes I had. He said what have you done about it? I explained I had seen a cardiologist in 2015 and had a series of tests that all came back clear 64. In their oral evidence, both Patient A and Mr A stated that they were surprised by the question and afterwards discussed how Mr Sait could have been aware of Patient A s history of chest pain. Patient A stated that the pain was a historical issue which had not occurred for several months, and therefore she had no reason to raise it in the consultation. Mr A stated that it was an ongoing issue that had recently recurred, but that the subject was raised by Mr Sait. 65. In his written statement, Mr Sait stated: Following the injection, Patient A brought up the subject of chest pain and I got the impression that she was anxious about it. 66. In his oral evidence, Mr Sait stated that it was Patient A who raised the issue of previous chest pain. 67. The Tribunal had regard to the wording of the allegation and determined that it accommodates an interpretation of a discussion, in the course of which, Mr Sait asked about Patient A s previous chest pain. Asked does not equate to initiated. It therefore determined that, on the balance of probabilities, Mr Sait did ask about Patient A s previous chest pain. 68. The Tribunal then considered whether there was a clinical reason for Mr Sait to ask Patient A about previous chest pain. In his witness statement, he stated: Prior to the examination for costochondritis, I explained to Patient A that I was looking for inflammation of the chest wall cartilage that could cause chest pain. I do not recall the exact conversation but I believe I would have mentioned that the chest pain could be caused by scoliosis or hypermobility. I would have also asked Patient A how long she had been suffering chest pain and where it was located. 69. Mr H rejected Mr Sait s assertion of a relationship between scoliosis and costochondritis. He stated that there was no evidence that Patient A had scoliosis and that regardless, Mr Sait s queries were irrelevant to the consultation as Patient A was attending for treatment of lower back pain. Mr I stated that it would be appropriate for Mr Sait to make such enquiries if he held the belief of an association between scoliosis and costochondritis. 16

17 70. The Tribunal accepted the evidence of Mr I that it would have been appropriate for Mr Sait to ask Patient A about previous chest pain, if he felt there was an association between scoliosis and costochondritis. In his oral evidence, Mr Sait stated that his 30 years of orthopaedic practice had shown him that there is a link between scoliosis and costochondritis. Accordingly, it found paragraph 5(a)(i) of the Allegation not proved. Paragraph 5(a)(ii) 71. It is undisputed between the parties that Mr Sait examined Patient A s chest. The Tribunal considered whether there was a clinical reason for Mr Sait to do so. 72. Mr H stated in his expert report that there was no clinical reason to do so as he rejected Mr Sait s assertion of a relationship between scoliosis and costochondritis. Mr I stated in his expert report that the examination was appropriate given that the issue of chest pain had been raised, irrespective of who raised it. 73. Given its findings at Paragraph 5(a)(i) and having had regard to the evidence of Mr I, the Tribunal was satisfied that there was a clinical reason for Mr Sait to examine Patient A s chest. Accordingly, it found paragraph 5(a)(ii) of the Allegation not proved. Paragraph 5(a)(iii) 74. In her witness statement, Patient A stated: I think Mr Sait stood slightly to my left and used his left hand to press down and around the left side of my chest area very firmly. He started a couple of inches down from my collar bone and went under my bra and stopped by just above my nipple. 75. In his witness statement, Mr Sait stated: Patient A pointed to her left side and my impression was that the pain was coming from her costochondral junction. I therefore examined for costochondritis (because I believe that patients with thoracic scoliosis can sometimes suffer from costochondritis which is the inflammation of the costal cartilage). The costal cartilage is located at the 17

18 junction between the sternum and the rib. I carried out an examination of her rib cage as I felt it was clinically indicated. I did not examine her breasts. 76. The medical experts agreed that Mr Sait performed an examination of Patient A s chest wall, not a breast examination. The Tribunal accepted this evidence and accordingly found paragraph 5(a)(iii) of the Allegation not proved. Paragraph 5(b) 77. The medical experts agreed that Mr Sait s examination of Patient A constituted an intimate examination and that therefore there was a duty on him to offer Patient A a chaperone. 78. It is Patient A and Mr A s evidence that a chaperone was not offered at any time during the consultation. It is Mr Sait s evidence that it is his standard practice to offer a chaperone. He stated that the offer of a chaperone had been recorded in Patient A s records for 29 April 2016, and did not need to be recorded on 6 May 2016 as it was a rolling medical record. 79. The Tribunal rejected Mr Sait s assertion and took the view that these were two separate consultations that called for renewed consideration of the need for a chaperone, particularly given the expert evidence that this amounted to an intimate examination. The Tribunal took the view that Mr Sait s failure to record the offer of a chaperone undermined his assertion that doing so was his normal practice. 80. The Tribunal determined that, on the balance of probabilities, Patient A and Mr A gave the accurate account of events. It therefore determined that Mr Sait had failed in his duty and found paragraph 5(b) of the Allegation proved. Paragraph 5(c) 81. In his witness statement, Mr Sait stated: Prior to the examination for costochondritis, I explained to Patient A that I was looking for inflammation of the chest wall cartilage that could cause chest pain. I do not recall the exact conversation but I believe I would have mentioned that the chest pain could be caused by scoliosis or hypermobility. 82. This was corroborated by Patient A and Mr A s oral evidence. The Tribunal was therefore satisfied that Mr Sait explained why he was examining Patient A s chest. Accordingly, it found paragraph 5(c) of the Allegation not proved. 18

19 Paragraph 5(d) 83. In her witness statement, Patient A stated: Mr Sait then asked how my mum was getting on after her surgery. He went on to say that my mum was a really beautiful lady. I remember feeling really awkward about it, especially as I was sat there in my underwear. I tried to brush it off and said yeah, she s nice. Mr Sait said no but she s really beautiful; she s lovely. He then repeated it. He probably said it about six times. I felt really awkward. I don t know if he could tell I felt awkward about it, but then he said you re beautiful too but your mum is really beautiful. 84. Mr Sait disputed that he made the comments and stated in his oral evidence that it was not his practice to make personal comments to patients. 85. The Tribunal determined, on the balance of probabilities, that it preferred the evidence of Patient A. It found that she gave a detailed and convincing account of the conversation, even when challenged, and that Mr A s oral evidence was consistent on this matter. It therefore found Paragraph 5(d) proved. Paragraph 5(e) 86. In her written and oral evidence, Patient A stated that Mr Sait commented on her beauty in the context of comments he made about her mother. This was supported by the evidence of Mr A. It was disputed by Mr Sait. 87. Given its findings at Paragraph 5(d) the Tribunal determined, on the balance of probabilities, that Mr Sait also told Patient A that she was beautiful, or words to that effect. Accordingly, it found paragraph 5(e) of the Allegation proved. Paragraph 6 in relation to paragraphs 5(a)(ii) - 5(a)(iii), 5(d) and 5(e) 88. The Tribunal did not consider whether Mr Sait s actions in relation to paragraphs 5(a)(ii) 5(a)(iii) were sexually motivated, as it had found those paragraphs not proved. Accordingly, it found paragraph 6 in relation to paragraphs 5(a)(ii) - 5(a)(iii) of the Allegation not proved. 89. The Tribunal has found it proved that Mr Sait told Patient A on one or more occasion that her mother was a really beautiful lady, or words to that effect. It has 19

20 also found it proved that he told Patient A that she was beautiful, or words to that effect. 90. Mr Aldred submitted that Mr Sait s actions, when viewed in their entirety, give rise to the likelihood that they were sexually motivated. Mr Sutton drew the Tribunal s attention to the case of Arunkalaivanan v General Medical Council [2014] EWHC 873 (Admin) ( Arunkalaivanan ) which sets out features that may support a finding, or suggest an absence, of sexual motivation. He submitted that none of the features which would support a finding of sexual motivation were present in this case. He further submitted that a number of the features which would suggest an absence of sexual motivation were present in this case. 91. Having regard to the above, the Tribunal found no evidence to suggest that Mr Sait s actions were sexually motivated. It noted that the comments were made in a hospital setting with Patient A s partner in attendance. It acknowledged Patient A s discomfort at the comments made but determined that they were, on the balance of probabilities, a clumsy attempt at conversation. It therefore found paragraph 6 in relation to paragraphs 5(d) and 5(e) of the Allegation not proved. Paragraph The Tribunal had regard to the Practising Privileges Policy attached to the witness statement of Ms J, Executive Director at the Hospital. It noted that the policy was issued in November 2015 and was therefore a policy which was in place at the time of the alleged events. The Tribunal determined that this policy established that there was a duty on Mr Sait to provide records to the hospital. 93. Mr Aldred submitted that Mr Sait had failed to provide a complete copy of Patient A s records to the Hospital, in that he did not provide the back page of the consultation note. Mr Sutton submitted that, in fact, this was an administrative oversight by the GMC, in that it did not acknowledge that Mr Sait had provided all of the requested records. 94. The Tribunal was satisfied that the evidence demonstrated that the failure to provide full copy of Patient A s medical records was an administrative error in communications between the Hospital and the GMC, in which Mr Sait was not involved. It therefore found paragraph 7 of the Allegation not proved. Paragraph In her AXA witness statement, Patient B stated: 20

21 During other appointments, when my husband was not present, MR SAIT would review scans with me and I asked for reassurance that he had found no serious health concerns. He replied by saying that there was nothing to worry about as I had good bones and skin and was very pretty. I found the reference to my looks strange, in view of my health concerns, but I put it to the back of my mind, assuming that he was just being friendly to put me at ease. 96. Patient B repeated in her oral evidence that Mr Sait had told her she was pretty during consultations and that, upon reflection afterwards, she felt that it wasn t quite right. 97. In his oral evidence, Mr Sait denied that he called Patient B pretty and stated that it was not in his habit to comment on patients physical appearance. 98. The Tribunal found Patient B to be an overall credible and reliable witness, and noted that she had stated Mr Sait had called her pretty in her two written statements and during her oral evidence. It determined that, on the balance of probabilities, Patient B had given accurate and consistent accounts of the comments made by Mr Sait. It therefore found paragraph 8 of the Allegation proved. Paragraph In her AXA witness statement, Patient B stated: At my last later appointment on 18 th April 2016, MR SAIT suggested that he telephone me to discuss my problems further. I agreed in the hope that he would be able to help or offer advice In her oral evidence, Patient B stated that this conversation came at the end of the consultation as she was about to leave and described a fleeting and apparently hurried exchange between herself and Mr Sait. Mr Sait denied this conversation took place and denied that he discussed any personal matters with Patient B during consultations with her It was put to Patient B during her oral evidence that, had this conversation taken place, she would not have been surprised by the alleged phone call from Mr Sait on 9 May 2016 which she stated she had received out of the blue. Patient B responded that she thought that phone call was in relation to her hip. 21

22 102. On balance the Tribunal accepted Mr Sait s version of events, having regard to the hurried nature of the exchange as described by Patient B and the likelihood that, in haste, she had misunderstood it. It therefore found paragraph 9 of the Allegation not proved. Paragraph 10(a) 103. In her AXA witness statement, Patient B stated: Then on 9 th May 2016, MR SAIT telephoned me on my mobile telephone number at 12-15pm from an unidentified telephone number. He would have known from our conversations during previous consultations, that I would be working at home that day. He said he had just finished working at DARENT VALLEY HOSPITAL and he was travelling through the area to FAWKHAM MANOR HOSPITAL, where he had to start work at approximately 2-30pm. He suggested that we meet at the EYNSFORD PLOUGH PUBLIC HOUSE Mr Sait, in his witness statement and oral evidence stated that he did telephone Patient B on 9 May 2016, but that this was in response to a call Patient B had made to his secretary, requesting that Mr Sait contact her. He stated that it was Patient B who requested to meet him in order to discuss a personal matter, to which he acceded The Tribunal accepted Patient B s evidence that she did not call Mr Sait. In her oral evidence, she said that nothing new in relation to her medical or domestic situation had occurred to make her call Mr Sait on that day or to create an urgent situation. The Tribunal found it unlikely that it was Patient B who contacted Mr Sait, given that this was a day when Mr Sait happened to have additional time available to meet her: in his written statement, Mr Sait said that he had been attending a patient safety committee meeting at DVH which had finished earlier that he had anticipated The Tribunal also considered it unlikely that Mr Sait would respond to an unexpected call from a former patient seeking an urgent meeting about an unexplained personal matter with such speed. It noted that the meeting took place at a location only 15 minutes after the phone call. Indeed, Mr Sait s assertion was that there had been no previous discussion of personal matters between him and Patient B. The Tribunal concluded that, on the balance of probabilities, it was Mr Sait that contacted Patient B rather than the other way around Having regard to the above, the Tribunal found paragraph 10(a) of the Allegation proved. 22

23 Paragraphs 10(b)(i) 10(b)(v) 108. In her AXA witness statement, Patient B stated: I met MR SAIT at the EYNSFORD PLOUGH PUBLIC HOUSE at 12-30pm, where we had lunch. MR SAIT paid for this. We sat in a garden outside with many other people present. I showed MR SAIT some of my husband s s with female and male colleagues / friends that I had been concerned about and I that I had printed after finding them on my husband s phone. He seemed very concerned regarding my current family situation and suggested that I should consider divorcing my husband if I was finding our problems too much to bear. MR SAIT also said that I was very pretty and I would have no problem finding someone else if I wanted to. I suggested during our conversation that I should mention our lunch meeting to my husband. However, MR SAIT encouraged me not to do this. He said that his wife did not know he was with me and he often met other patients outside of work and he had also never told her about this Mr Sait, in his written and oral evidence, factually accepted that he met with Patient B at the Pub on 9 May He stated that Patient B initiated the topic of her marital difficulties and showed him the s pertaining to this matter. He stated that he was shocked that Patient B raised this matter with him and advised her to seek guidance elsewhere. Mr Sait denied that he made any of the alleged remarks set out in paragraph 10 of the Allegation. His only recollection was that the conversation had been professional at all times, but was unable to recall the content The Tribunal found Patient B s oral and written evidence on this matter to be consistent and cogent, even when tested under cross examination. She explained the conversation in a logical and plausible sequence of events. In addition, it considered the context in which the conversation took place, i.e. a meeting outside of a clinical setting which the Tribunal has found proved was initiated by Mr Sait and where both parties accept that Patient B s marital difficulties were discussed. The Tribunal was satisfied that Patient B had a good recollection of the comments made and preferred this to Mr Sait s denial of them Accordingly, it found paragraph 10(b) of the Allegation proved in its entirety. 23

24 Paragraph 10(c) 112. Patient B s evidence was that, at the end of their meeting, Mr Sait suggested that they go back to his car. She stated that she agreed to this as she believed that Mr Sait would provide her with leaflets or guidance material. Despite the fact that her written evidence did not specifically mention her having entered Mr Sait s car along with him, during her oral evidence, she was clear and unequivocal that it had indeed happened. Mr Sait denied that this took place and stated that he and Patient B shook hands outside of the pub and parted company In the context of its previous finding and the consistency of Patient B s evidence, the Tribunal determined that it was more likely than not that Mr Sait had asked Patient B to go with him to his car. Accordingly, it found paragraph 10(c) of the Allegation proved. Paragraph 10(d) and 10(e) 114. In her AXA witness statement, Patient B stated: MR SAIT then leaned towards me and gave me a hug and I think he tried to give me a peck on the cheek. This was the only time he had approached me in this way and I was very much taken aback by this behaviour Mr Sait denied that he hugged Patient B or kissed her on the cheek The Tribunal determined that Patient B did her best to explain her interpretation of events during her oral evidence and clearly tried to recall events to assist the Tribunal. However, it determined that there was scope for misinterpretation in terms of what happened whilst seated in Mr Sait s car. She stated that some contact was initiated by Mr Sait, but appeared uncertain as to what that contact involved or how it arose. As such, it found paragraphs 10(d) and 10(e) of the Allegation not proved. Paragraph 11 in relation to paragraphs 8-10(a), 10(b)(i)-10(b)(v), 10(c), 10(d) and 10(e) 117. The Tribunal did not consider whether Mr Sait s actions in relation to paragraph 9 and paragraphs 10(d) and 10(e) were sexually motivated, as it had found those paragraphs not proved. Accordingly, it found paragraph 11 in relation to paragraph 9 and paragraphs 10(d) and 10(e) of the Allegation not proved. 24

25 118. The Tribunal had regard to the features set out in Arunkalaivanan which could support or refute a finding of sexual motivation In reaching its decision on whether Mr Sait s conduct was sexually motivated, the Tribunal considered the facts found proved in relation to paragraph 8 and paragraphs 10(a), 10(b)(i)-10(b)(v) and 10(c), in their totality The Tribunal determined that there was a reasonable inference, based on the facts found proved, of a pattern of behaviour and that Mr Sait s conduct was sexually motivated. In reaching this conclusion, the Tribunal took into account: Mr Sait s denials in the face of matters now found proved; the nature of Mr Sait s invitation made on 9 May 2016; Patient B s account of events and her own feeling of vulnerability; the lack of an explanation for this meeting which took place outside of a clinical setting and for reasons not connected to his professional role; Mr Sait s repeated reference to Patient B s appearance; Mr Sait s suggestion that Patient B should consider divorce; Mr Sait s suggestion that she withhold information about the meeting from her husband; Mr Sait s assertion that his wife did not know of the meeting and that he often met other patients outside of work; and Mr Sait s invitation to Patient B to go to his car In view of the above, the Tribunal concluded that Mr Sait s conduct was sexually motivated, in that it could be reasonably inferred that he intended to progress his relationship with Patient B with a view to sexual relations The Tribunal bore in mind that Mr Sait is of previous good character. However, it determined that this bore less weight given the Tribunal s factual findings and his decision to meet a recent patient outside a clinical setting at a pub. It therefore determined that, even taking account of Mr Sait s previous good behaviour, it could be satisfied that the factual findings demonstrated that Mr Sait s actions were sexually motivated Having regard to all of the above, the Tribunal determined that Mr Sait s conduct was sexually motivated. Accordingly, it found paragraph 11 in relation to paragraphs 8, 10(a), 10(b)(in its entirety) and 10(c) of the Allegation proved. 25