PUBLIC RECORD. Record of Determinations Medical Practitioners Tribunal. Dates: 20/04/ /04/2017 (Adjourned Part Heard) 02/10/2017 (Reconvened)

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1 PUBLIC RECORD Dates: 20/04/ /04/2017 (Adjourned Part Heard) 02/10/2017 (Reconvened) Medical Practitioner s name: Dr Ahmed Mohsen TOLBA GMC reference number: Primary medical qualification: Type of case New - Misconduct MB BCh 2003 Zagazig University Outcome on impairment Impaired Summary of outcome Suspension, 12 months. Review hearing directed Immediate order imposed Tribunal: Medical Tribunal Member (Chair) Lay Tribunal Member: Lay Tribunal Member: Dr Elizabeth Ball Mr Bernard Carter Ms Colette Neville Legal Assessor: Tribunal Clerk: Mr David Swinstead Mr Sewa Singh Attendance and Representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Present and represented Ms Catherine Stock, Counsel Ms Catherine Cundy, Counsel 1

2 Allegation and Findings of Fact That being registered under the Medical Act 1983 (as amended): 1. Between February 2014 and August 2015 you were a GP trainee at The Dicconson Group Practice, Wigan. Admitted and Found Proved 2. On 26 February 2015 you ed your GP Trainer informing him that you would be returning to the UK on 1 March 2015, or words to that effect. Admitted and Found Proved 3. On 27 February 2015 you returned to the UK. Admitted and Found Proved 4. On 28 February 2015 you undertook a locum shift at Wrightington, Wigan and Leigh NHS Foundation Trust whilst you were on bereavement leave. Admitted and Found Proved 5. On 1 March 2015 you: a. telephoned your GP Trainer and stated that you had just arrived back at the airport, or words to that effect; Admitted and Found Proved b. sent an to your GP Specialty Training Programme Director and said that you had Just arrived back home today from Egypt : Admitted and Found Proved 6. On 2 March 2015 you: a. were signed off retrospectively by your GP as unfit for work from 25 February 2015 to 13 March 2015; Admitted and Found Proved b. did not notify your GP that you had worked on 28 February Admitted and Found Proved 7. On 3 March 2015 at a meeting with your GP Trainer you stated: a. on more than one occasion that you did not return to the UK until 1 March 2015; Admitted and Found Proved b. that you had not undertaken a locum shift on 28 February Admitted and Found Proved 8. On 20 July 2015 your employer Pennine Acute Hospitals NHS Trust issued you with a written warning. Admitted and Found Proved 2

3 9. You did not disclose the written warning to Health Education England North West ( HEENW ). Admitted and Found Proved 10. On 17 November 2015 you submitted a Form R for Annual Review of Competence Progression to HEENW in which you answered No to the question Do you have any GMC conditions, warnings or undertakings placed on you by the GMC, employing Trust or other organisation? Admitted and Found Proved 11. Your s referred to in paragraph 2 and 4.b 5.b., telephone call referred to in paragraph 4.a. 5.a. and meeting referred to in paragraph 7 contained information which: Amended following a successful Rule 17(6) application a. was untrue; Admitted and Found Proved (only in relation to 5a, 5b and 7) Found Not Proved in relation to 2 b. you knew to be untrue Admitted and Found Proved (only in relation to 5a, 5b and 7) Found Not Proved in relation to Your actions as described in paragraphs 2, 4, 5, 6b, 7, 9, and 10 were: a. misleading; Admitted and Found Proved (only in relation to 4, 5, 6b and 7) Found Not Proved in relation to 2 Found Proved in relation to 9 and 10 b. dishonest. Admitted and Found Proved (only in relation to 4, 5, 6b and 7) Found Not Proved in relation to 2 and 9 Found Proved in relation to 10 Attendance of Press / Public The hearing was all heard in public. 3

4 Determination on Preliminary Matters and Facts - 25/04/2017 Dr Tolba: Admissions 1. Ms Catherine Stock, Counsel on your behalf, made a number of admissions at the outset of the hearing in relation to the following paragraphs, which the tribunal announced as admitted and found proved: Paragraph 1 Paragraph 2 Paragraph 3 Paragraph 4 Paragraph 5 in its entirety Paragraph 6 in its entirety Paragraph 7 in its entirety Paragraph 8 Paragraph 9 Paragraph 10 Paragraph 11a and 11b (only in relation to paragraphs 5a, 5b and 7) Paragraph 12a and 12b (only in relation to paragraphs 4, 5, 6b and 7) Amendments to the Allegation 2. Following an application made by Ms Catherine Cundy, Counsel on behalf of the GMC, under Rule 17(6) of the General Medical Council (GMC) (Fitness to Practise) Rules 2004 (as amended) ( the Rules ), the tribunal agreed to amend the following paragraph: - Paragraph 11 to read: Your s referred to in paragraphs 2 and 4.b 5.b., telephone call referred to in paragraph 4.a. 5.a. and meeting referred to in paragraph 7 contained information which: 3. Ms Cundy submitted that the amendments were necessary due to typographical errors and that no injustice would be caused to you as a result. 4. The Tribunal noted that Ms Stock did not oppose the amendment. The tribunal was satisfied that the amendment could be made without injustice to either party. 4

5 Background 5. Between February 2014 and August 2015 you were a Trainee General Practitioner at the Dicconson Group Practice ( the Practice ), Wigan. From September to December 2015, you were a Trainee GP at a practice in Liverpool. 6. On or around 17 February 2015, due to personal circumstances, namely the unexpected death of your father whilst on a visit to the UK, you took bereavement leave to make arrangements for the return of your father s body to, and for your father s funeral in, Egypt. You travelled to Egypt on 19 February In an dated 26 February 2015, you informed your GP Trainer, Dr A, that you would return to the UK on 1 March 2015 and return to work on 3 March On 1 March 2015, in a telephone conversation, you told Dr A that you had just arrived in the UK and that, although you were considering returning to work on 3 March 2015, you had been in contact with Dr B, the Local Trainee GP Programme Director, in respect of taking study leave for your AKT exam on 29 April It is understood that on the basis of your discussions with Dr B, it was considered appropriate for you to take further time off to help you to recover from your bereavement sufficiently to cope with the rigours of working in general practice. Dr A considered this to be reasonable under the circumstances and advised you to obtain a fit note or MED3 from your own GP to use for the period of absence. 8. On 3 March 2015, Dr A was informed by one of his partners that you had seen one of the practice s patients on 28 February 2015 at the Wigan Accident and Emergency Department (WAE), part of the Wrightington, Wigan and Leigh NHS Foundation Trust. Dr A contacted you and asked you to bring your fit note in to the Practice. A meeting took place between you and Dr A, at which Ms D, the Practice Manager, was also in attendance. During the meeting, when asked on two or three occasions by Dr A as to the date you arrived back in the UK, you replied 1 March However, after Dr A placed before you the A&E notes relating to your consultation with the patient on 28 February 2015, you admitted that you arrived in the UK on 27 February 2015, and that you had undertaken a locum shift at WAE on 28 February The Primary Acute NHS Trust (PAT), your employer, and Health Education England North West (HEENW), were informed of the matter. PAT undertook an investigation which led to a formal Disciplinary Hearing on 15 July 2015, where you were found guilty of gross misconduct relating to your dishonest communications with Dr A. In a letter to you dated 20 July 2015, you were given a written warning for 6 months. During the course of the investigation but prior to the formal Disciplinary Hearing, you submitted your Annual Review of Competence Progression (ARCP) form dated 20 May 2015, to HEENW. In Section 5 of the form entitled New declarations since your previous Form R, under the part relating to RESOLVED 5

6 significant events, you stated 5 March 2015 Making the wrong decision. Given that you had failed your Membership of the Royal College of General Practitioners (MRCGP) exam, the ARCP Panel decided to give you an extension so that you could re-sit the exam. 10. In November 2015, you submitted a further ARCP form. In Section 3 of the form entitled Declarations relating to Good Medical Practice, question 3a states Do you have any GMC conditions, warnings or undertakings placed on you by GMC, employing Trust or other organisation?. You answered No to this question. In January 2016, while considering your ARCP form, HEENW became aware that you had received a written warning. After making further enquiries, HEENW decided to refer the matter to the GMC. Witnesses and Evidence 11. The tribunal gave careful consideration to all the documentary evidence adduced in this case. It has taken account of the submissions made by Ms Cundy and by Ms Stock. 12. The tribunal received oral evidence from you. The tribunal was unable to reconcile the consistent written evidence, which you had agreed, from your employers, employer records and your own witness statement, that the locum shift on 28 February 2015 had been pre-booked in January 2015, with your oral assertion that you were notified of the availability of the shift via a group text message received that very morning. There was previously no mention whatsoever prior to your giving evidence on 20 April 2017 of any group text message on 28 February Further, you confirmed in your witness statement that you saw your GP for a MED3/fit note on 2 March You denied that you asked your GP to backdate the note, but conceded in cross examination, that you gave him the dates (25 February to 13 March 2015). You also conceded under cross examination that you did not mention to the GP that you had done a locum shift at WAE on 28 February The Tribunal s Approach 13. The Tribunal has borne in mind that the burden of proof rests on the GMC throughout and that the standard is the civil standard of proof, that is, on the balance of probabilities. The Tribunal s Findings 14. The Tribunal has considered each paragraph of the allegation separately and has made the following findings on the facts: Paragraph 1 6

7 1. Between February 2014 and August 2015 you were a GP trainee at The Dicconson Group Practice, Wigan. Admitted and Found Proved Paragraph 2 2. On 26 February 2015 you ed your GP Trainer informing him that you would be returning to the UK on 1 March 2015, or words to that effect. Admitted and Found Proved Paragraph 3 3. On 27 February 2015 you returned to the UK. Admitted and Found Proved Paragraph 4 4. On 28 February 2015 you undertook a locum shift at Wrightington, Wigan and Leigh NHS Foundation Trust whilst you were on bereavement leave. Admitted and Found Proved Paragraph 5 5. On 1 March 2015 you: a. telephoned your GP Trainer and stated that you had just arrived back at the airport, or words to that effect; Admitted and Found Proved b. sent an to your GP Specialty Training Programme Director and said that you had Just arrived back home today from Egypt : Admitted and Found Proved Paragraph 6 6. On 2 March 2015 you: a. were signed off retrospectively by your GP as unfit for work from 25 February 2015 to 13 March 2015; Admitted and Found Proved b. did not notify your GP that you had worked on 28 February Admitted and Found Proved Paragraph 7 7. On 3 March 2015 at a meeting with your GP Trainer you stated: 7

8 a. on more than one occasion that you did not return to the UK until 1 March 2015; Admitted and Found Proved b. that you had not undertaken a locum shift on 28 February Admitted and Found Proved Paragraph 8 8. On 20 July 2015 your employer Pennine Acute Hospitals NHS Trust issued you with a written warning. Admitted and Found Proved Paragraph 9 9. You did not disclose the written warning to Health Education England North West ( HEENW ). Admitted and Found Proved Paragraph On 17 November 2015 you submitted a Form R for Annual Review of Competence Progression to HEENW in which you answered No to the question Do you have any GMC conditions, warnings or undertakings placed on you by the GMC, employing Trust or other organisation? Admitted and Found Proved Paragraph 11 11a. Your s referred to in paragraph 2 and 4.b 5.b., telephone call referred to in paragraph 4.a. 5.a. and meeting referred to in paragraph 7 contained information which: Amended following a successful Rule 17(6) application a. was untrue; Admitted and Found Proved (only in relation to 5a, 5b and 7) Found Not Proved in relation to 2 In relation to paragraph 2: 15. There was before the tribunal a copy of your to Dr A dated 26 February 2015, timed at 13:20, in which you stated I am flying back home on Sunday night and I will be back at work on tusday [sic]. In your evidence you told the tribunal that at the time of sending the , that was the situation, and that you received a telephone call from Egypt Air later that day indicating that a seat was available for you to travel on 27 February

9 16. The tribunal had regard to the evidence before it. It noted that there was no evidence to counter your assertion that, at the time you ed Dr A on 26 February 2015, your expectation was that you would return to the UK on 1 March 2015 and return to work at the practice on 3 March The tribunal also noted that there was no evidence that, at the material time, you believed you should not carry out your locum shift on 28 February On this basis, the tribunal could find no evidence as to why you would need to mislead Dr A. Based on the evidence, the GMC has not proved on the balance of probabilities, that your to Dr A was untrue. 17. The tribunal found paragraph 11(a) in relation to paragraph 2 of the allegation not proved. 11b. you knew to be untrue Admitted and Found Proved (only in relation to 5a, 5b and 7) Found Not Proved in relation to 2 In relation to paragraph 2: 18. In view of its findings at paragraphs 15 to 17, it follows that the GMC has not proved on the balance of probabilities that you knew that the information contained in the was untrue. It therefore found paragraph 11(b) in relation to paragraph 2 of the allegation not proved. Paragraph Your actions as described in paragraphs 2, 4, 5, 6b, 7, 9, and 10 were: a. misleading; Admitted and Found Proved (only in relation to 4, 5, 6b and 7) Found Not Proved in relation to 2 Found Proved in relation to 9 and The tribunal noted the advice of the Legal Assessor as to the definition of misleading which is leading someone to believe something is true when it is not. In relation to paragraph 2: 20. In view of its findings at paragraphs 15 to 18, the tribunal considered that your actions cannot be found to have been misleading. It therefore found paragraph 12(a) in relation to paragraph 2 of the allegation not proved. In relation to paragraph 9: 9

10 21. The tribunal had before it a copy of your ARCP form dated 20 May It noted that in the Section entitled Signature it states I confirm that this is a true and accurate declaration at this point in time and [I] will immediately notify the Deanery/LETB and my employer if I am aware of any changes to the information.. The tribunal considered that the declaration placed a duty upon you to notify any changes to the information contained in that form, and that by signing the declaration, you accepted that you had read and understood the duty placed upon you. The tribunal was of the view that once you were aware of the outcome of the formal disciplinary proceedings against you by your employer, it was incumbent upon you to disclose this information to the HEENW which would involve informing the Deanery. In light of the evidence, including your attendance at the Disciplinary Hearing on 15 July 2015 and the subsequent written warning dated 20 July 2015, on the balance of probabilities, the tribunal took the view that you would have been aware of your duty to disclose this information. The tribunal noted your evidence that you thought that HEENW knew of your warning but determined that that did not absolve you from your responsibility to inform it and, by not doing so, the tribunal was satisfied that your actions were misleading. 22. It therefore found paragraph 12(a) in relation to paragraph 9 of the allegation proved. In relation to paragraph The tribunal had regard to your completed ARCP Form dated 17 November It noted that in Section 3 of the form entitled Declarations relating to Good Medical Practice, you answered No to having any GMC conditions, warnings or undertakings placed on you by GMC, employing Trust or other organisation. The tribunal considered the wording of the question and decided that it is clear as to what information must be provided. In your evidence you did not indicate at any point that you did not understand the meaning of the question. 24. The tribunal took into account your oral evidence that in completing the ARCP form in May 2015, by saying making the wrong decision, you were referring to these events although at that time no written warning was in place. The written warning was in place from July The tribunal considered that at the time of completing your ARCP form in November 2015, you were aware of your written warning and would have been aware of the duty to disclose it. Furthermore, the tribunal took into account that in section 4 of the form entitled Update to previous Form R Part B, you failed to provide any update that you had been given a written warning. 25. The tribunal was of the view that, in light of the evidence before it and on the balance of probabilities, you were aware of your duty to disclose the written warning in your ARCP form and you failed to do so. The tribunal was satisfied that your failure to disclose the warning was misleading. 10

11 26. The tribunal therefore found paragraph 12(a) in relation to paragraph 10 of the allegation proved. 12b. dishonest. Admitted and Found Proved (only in relation to 4, 5, 6b and 7) Found Not Proved in relation to 2 and 9 Found Proved in relation to 10 In relation to paragraph 2: 27. In view of its findings at paragraphs 15 to 18, the tribunal considered that your actions were not dishonest. It therefore found paragraph 12(b) in relation to paragraph 2 of the allegation not proved. In relation to paragraph 9: 28. In your evidence you told the tribunal that you had informed Dr A about your written warning. You said that you made the assumption that the relevant authorities had been notified about the written warning. You also said that you assumed that all correspondence relating to your disciplinary hearing had been copied to various people including HEENW. 29. From the evidence before it, the tribunal was of the view that it was not unreasonable for you to have assumed that HEENW was aware of your written warning, or for you to believe this to be the case. Against this background, the tribunal did not consider that the GMC had proved your actions to be dishonest. 30. The tribunal therefore found paragraph 12(b) in relation to paragraph 9 of the allegation not proved. In relation to paragraph 10: 31. In considering this paragraph, the tribunal at the outset considered the importance of the ARCP form, and concluded that it is a very important document used in the process of revalidation of a doctor in training. It is in essence an agendasetting form of what has been happening during a doctor s training over the previous six months which could then be discussed by the ARCP Panel. 32. You said in your evidence that at the time of completing the ARCP form in November, you had the warning in your mind, or words to that effect. You also stated that you thought that everyone knew about it and so you did not declare it on the form. From this evidence, the tribunal determined that you, by writing the word No in answer to that question on the form, deliberately decided not to declare your warning and that this was potentially a dishonest act. The tribunal noted your 11

12 evidence that you thought that all the relevant parties knew of your warning but determined that this did not absolve you from your responsibility to complete the form accurately. 33. In relation to the allegation of dishonesty, the tribunal considered whether, according to the ordinary standards of reasonable and honest people, what you did was dishonest, and whether, on the balance of probabilities, you realised at the time that what you were doing was dishonest by those standards. 34. The tribunal first considered whether your actions were dishonest according to the ordinary standards of reasonable and honest people. The tribunal had regard to its findings as set out above. The tribunal concluded that reasonable and honest people would find your actions to be dishonest. 35. The tribunal went on to consider whether you realised at the time that what you were doing was dishonest. Based on the evidence before the tribunal, and given its finding that you made a positive decision to deny that you had received a written warning in an important form containing a statement of truth, the tribunal was of the view that you would have been aware that your actions were dishonest. The tribunal was therefore satisfied that, by not completing the form fully, openly and honestly, your actions were dishonest. 36. The tribunal found paragraph 12(b) in relation to paragraph 10 of the allegation proved. Determination on Impairment - 27/04/2017 Dr Tolba: 1. Having announced its findings on the facts, the tribunal has now considered whether, on the basis of the facts found proved, your fitness to practise is impaired by reason of misconduct. The tribunal has taken into account all the evidence before it and the submissions made by Ms Cundy and by Ms Stock. The full submissions are a matter of record, a summary of which can be found below. Preliminary Issues First 2. As the tribunal began its task of reviewing the admissions and its findings in order to make decisions on the issues of misconduct and impairment, it noted the admission that you made at the outset of the hearing that your action in undertaking the locum shift whilst on bereavement leave was misleading and dishonest (paragraph 12 with regard to paragraph 4 of the allegation). In this context it had regard to its findings on the allegation of misleading and dishonest conduct in 12

13 paragraph 12 of the allegation in relation to paragraph 2. It decided that the conclusions that it reached in the following two sentences in paragraph 16 of its determination on the facts did not sit comfortably with your admission in paragraph 12 with regard to paragraph 4: The tribunal also noted that there was no evidence that, at the material time, you believed you should not carry out your locum shift on 28 February On this basis, the tribunal could find no evidence as to why you would need to mislead Dr A. 3. The tribunal remained content with its findings and conclusions overall with regard to paragraph 16 of its determination on the facts, but it determined that for the purposes of its consideration of misconduct and impairment, it would not take the two sentences quoted above into account. For the avoidance of doubt, the tribunal did not change its decision with regard to any of its findings on the facts and, for the purpose of making its findings on misconduct and impairment, it had regard to all the admissions made by you and all its findings on the facts. In reaching this decision, the tribunal noted that its findings with regard to paragraph 2 would have no bearing on its decisions on either misconduct or impairment. Second 4. The tribunal was concerned to ensure that it understood the basis on which you made admissions to paragraphs 12 with regard to paragraph 4 of the allegation. The tribunal asked the parties to return, and the Chair, on behalf of the tribunal, posed the question to Ms Stock What is the basis on which dishonesty is admitted in paragraph 12 in relation to paragraph 4?. She followed this question with the explanation The tribunal is concerned that the evidence before us (namely in paragraph 10 of Dr Tolba s witness statement) is inconsistent with that admission. 5. Ms Stock declined to answer the question or address the subsequent comment. In response to this, the Chair asked a further question: Did Dr Tolba know at the time of the locum shift on 28 February 2015 that he should not be doing the shift? The tribunal again received no substantive response. Finally the Chair made the following statement: The inference the tribunal will take from the admission, in paragraph 12 in relation to paragraph 4, is that Dr Tolba knew at the time that it was dishonest to undertake a locum shift while on bereavement leave. The tribunal will go on to consider misconduct and impairment in the light of that. No objection was made by either Counsel to the tribunal drawing that inference. Evidence 6. The Tribunal received and took into account the following evidence: 13

14 - your undated reflective statement. Ms Stock clarified that this statement was prepared for the tribunal and was updated following your consideration of the tribunal s determination on the facts. In this you described the circumstances leading to you receiving the written warning, and to you completing the ARCP forms in May and November 2015; - your Curriculum Vitae (CV); - character references provided on your behalf, from colleagues with whom you have worked at the Practice and at WAE. They spoke of you as a hardworking, honest and caring doctor. Submissions on behalf of the GMC 7. Ms Cundy referred the tribunal to its findings on facts. She invited the tribunal to find that your fitness to practise is currently impaired by reason of your misconduct. She reminded the tribunal that this case involved you being dishonest to your GP Trainer, and subsequently to your Deanery by inaccurately completing your ARCP form (Form R) in November Ms Cundy said that honesty was at the heart of the medical profession and you had acted dishonestly. She referred the tribunal to paragraphs 65 and 71 of Good Medical Practice ( GMP ), March 2013, which she said were relevant. She said that your actions were breaches of these paragraphs, were serious in all the circumstances and amounted to misconduct. 8. In relation to impairment, Ms Cundy submitted that dishonesty is very difficult to remediate. She submitted that you had not provided any plausible explanation as to why your personal circumstances at the time led you to act dishonestly, when you returned to the UK from Egypt, and subsequently when completing your ARCP form (Form R). Ms Cundy submitted that you had not demonstrated sufficient insight into your actions, drew attention to your being unable to explain why you acted as you did, and that the likelihood of dishonest conduct remained. Submissions on your behalf 9. Ms Stock, on your behalf, conceded that your dishonest actions amounted to misconduct which was serious. Ms Stock said that you are a doctor who has practised medicine in the UK since 2009 and had an unblemished record. She referred the tribunal to your CV and to your character references. 10. Ms Stock submitted that you have shown remorse for your actions, at the time of the events and to this day, and that you accepted the findings of the tribunal. You immediately apologised to your GP Trainer, for being dishonest in your communications with him, and accepted the written warning which you received as a result of your dishonest communications. In relation to the ARCP form, she 14

15 submitted that you rectified immediately the inaccuracies when they were brought to your attention. Ms Stock drew attention to your GP Trainer s comment that you had reflected adequately on the events, and she said that there was no risk of repetition. 11. In relation to the public interest, Ms Stock submitted that a reasonable and well-informed member of the public would not consider that your actions, in light of the remediation you have undertaken, would support a finding of impairment. Ms Stock invited the tribunal to find that your fitness to practise is not currently impaired. The Tribunal s decision 12. The tribunal has borne in mind that there is no burden or standard of proof at this stage. It is a matter for this tribunal, exercising its own judgement, to determine whether your fitness to practise is currently impaired. Throughout its deliberations, the tribunal has borne in mind its overarching objective, which is to ensure the protection of the public, the promotion and maintenance of public confidence in the profession and the promotion and maintenance of proper professional standards and conduct for members of the profession. 13. The tribunal has already given a detailed determination in relation to the facts of this case. It has taken those findings into account in making this decision. 14. The tribunal acknowledged that consideration of impairment is a two stage process and that the tribunal should ask itself if the facts found proved amount to misconduct as defined in law. If the answer is yes, then the tribunal should go on to consider whether your fitness to practise is currently impaired as a consequence. 15. In reaching its decision the tribunal is entitled to take into account your conduct at the time of the events in question and, afterwards, whether you have shown any insight into your behaviour and whether you have undertaken any action to remedy your conduct. Misconduct 16. The tribunal first considered whether the facts found proved were of such seriousness as to amount to misconduct. The alleged misconduct in this case relates to your actions in that you were dishonest in working a locum shift on 28 February 2015 when you knew you were on bereavement leave; in your communications with Dr A, your GP Trainer, and Dr B, your Programme Director; and in not notifying your GP that you had worked on 28 February Further, that you dishonestly failed to declare your written warning in your ARCP form dated 17 November Your alleged misconduct also related to your misleading action in not disclosing the written warning to HEENW. 15

16 17. The tribunal has had regard to the provisions in GMP (March 2013). It considers that your conduct was a significant departure from the principles of GMP, in particular paragraphs 65, 68, and 71(a) and (b). These state: 65. You must make sure that your conduct justifies your patients trust in you and the public s trust in the profession. 68. You must be honest and trustworthy in all your communication with patients and colleagues. This means you must make clear the limits of your knowledge and make reasonable checks to make sure any information you give is accurate. 71. You must be honest and trustworthy when writing reports, and when completing or signing forms, reports and other documents. You must make sure that any documents you write or sign are not false or misleading. a. You must take reasonable steps to check the information is correct. b. You must not deliberately leave out relevant information. 18. You undertook a locum shift at WAE on 28 February 2015, whilst you were on bereavement leave. You confirmed that you saw your GP for a MED3/fit note on 2 March 2015 and gave him the dates (25 February to 13 March 2015), but did not mention to him that you had done a locum shift at WAE on 28 February You informed Dr A and Dr B that you arrived in the UK on 1 March 2015, which was not true. Subsequently, in a meeting with Dr A on 3 March 2015, you denied but later admitted when confronted with the evidence, that you returned to the UK on 27 February 2015 and that you undertook a locum shift on 28 February 2015 at WAE. 20. In your ARCP form dated 17 November 2015, you failed to disclose that you had received a written warning for six months in July 2015 for gross misconduct relating to your dishonest communications. 21. The tribunal determined that your dishonest actions as admitted by you, and those later found proved by the tribunal, breached paragraphs 65, 68 and 71 of GMP. The tribunal was satisfied that these were serious breaches of GMP. It considered that your actions would be regarded as deplorable by fellow practitioners. It concluded that, in each of your dishonest actions, the level of seriousness was such as to cross the threshold of seriousness to support a finding of misconduct. The tribunal concluded that your actions amount to misconduct. 22. In relation to your alleged misconduct relating to your misleading action in not disclosing the written warning to HEENW as soon as you became aware of it in 16

17 July 2015, the tribunal determined that your action did not cross the threshold of seriousness to warrant a finding of misconduct in the particular circumstances of this case. Impairment 23. The tribunal then considered whether your fitness to practise is currently impaired. 24. The tribunal took into account the public interest, which involves the protection of patients, the maintenance of public trust and confidence in the profession, and the upholding of proper standards of behaviour. 25. In reaching its decision on impairment the tribunal considered the issues of remediation, insight and the risk of repetition. 26. The tribunal acknowledged that dishonesty is difficult to remedy. Whilst it has been provided with some evidence of remediation in the form of your reflective statement, it has not been provided with sufficient evidence to demonstrate that you have taken steps to reflect on your behaviour to a degree that such misconduct will not be repeated in the future. 27. In your reflective statement, which you finalised after the findings of fact were handed down, you explained the circumstances leading to the concerns raised. You apologised for what you characterised as mistakes, and described the steps you had taken to address the concerns and what you had learnt from this experience. However, your reflective statement demonstrated that you have limited insight into your misconduct. You made no reference to your admissions of dishonesty relating to paragraphs 4 and 6b, and did not explain them. You sought to justify your dishonest actions in respect of paragraph 10 which was inconsistent with Ms Stock s submission that you accepted the tribunal s findings. You acknowledged that your actions were unacceptable and stated that you were embarrassed by what you had done. You felt that you had let your father down as well as your family, but you made no reference to the impact that dishonesty has on the reputation of the profession and public confidence in it. You made no reference in your reflective statement or in your oral evidence that you appreciate the impact your behaviour may have had on either the public interest or the standing of the profession. 28. In respect of the written warning dated 20 July 2015, you said in your oral evidence that you put it in a drawer and didn t want to remember about it. This may have affected the extent of the reflection you state you have undertaken since that time. 29. The only insightful explanation you offered for your dishonest conduct was that this all happened when you were stressed and grieving the loss of your father. 17

18 While the tribunal has considerable sympathy for the shock and stress you suffered as a result of your father s sudden death, this does not explain why you were dishonest, either in February and March 2015 or subsequently. While you said in your reflective statement XXX, you conceded in your oral evidence that you could not explain it. It is difficult for the tribunal to be reassured that, faced with another highly stressful situation, you would not be dishonest again. 30. In your oral evidence you explained your understanding of the difference between dishonesty and a mistake you said words to the effect that, if I am dishonest but admit to it and apologise, then it s a mistake. 31. The tribunal also had regard to the character references/testimonials. From these, it appears to the tribunal that most of the referees did not address the full facts of the allegation, in particular the allegation of dishonesty. Consequently the tribunal could give only limited weight to these. 32. The tribunal had regard to the formula for the consideration of impairment put forward by Dame Janet Smith in her Fifth Shipman Report. The tribunal formed the view that your behaviour has brought the profession into disrepute, has breached fundamental tenets of the profession and constituted a departure from the standards set out in GMP. Further, you have acted without integrity. 33. The Tribunal has borne in mind the wider public interest. The tribunal was satisfied that you failed to uphold the proper standards of behaviour expected of doctors by the public. As such, public confidence is likely to be damaged by your actions. The public is, in the tribunal s view, likely to be concerned that a doctor should be allowed to practise unrestricted when he has been dishonest to his GP Trainer and GP Speciality Training Programme Director, later deliberately failed to openly and honestly declare in an important form that he had been subject to disciplinary proceedings by his employer, and had not demonstrated sufficient insight into the concerns. 34. Accordingly, the tribunal has determined that your fitness to practise is currently impaired by reason of your misconduct. Determination on Sanction - 02/10/2017 Dr Tolba: 1. Having determined that your fitness to practise is impaired by reason of your misconduct, the tribunal has considered what sanction, if any, to impose on your registration. The tribunal has considered the submissions made by Ms Cundy and those made by Ms Stock. The full submissions are a matter of record, a summary of which can be found below. 18

19 Submissions on behalf of the GMC 2. Ms Cundy submitted that the appropriate sanction in this case is a period of suspension. 3. She referred the tribunal to the Sanctions Guidance ( SG ) (July 2016 version) and went through the options available to it. She reminded the tribunal of its determination on impairment and highlighted the areas which she said indicated why taking no action, or imposing a period of conditional registration, was not the appropriate sanction in this case. 4. Ms Cundy submitted that you failed to demonstrate sufficient insight into the concerns raised. You were dishonest at the time of your return from Egypt and you repeated your dishonesty some months later. Ms Cundy submitted that a period of suspension would be sufficient to protect the public interest and maintain public confidence in the profession. She referred the tribunal to paragraphs of the SG which explain when suspension may be appropriate, and to paragraph 91, which provides a list of factors, some or all of which indicate when suspension may be appropriate. Submissions on your behalf 5. Ms Stock told the tribunal that you are a hard-working doctor who treats his patients fairly and with respect, in accordance with Good Medical Practice ( GMP ), and this is evidenced in the testimonials/references provided by your colleagues. Ms Stock submitted that this was an isolated incident at a time in your life when you were under severe stress and financial pressure. Since these events you have developed strategies to enable you to cope with similar stressful situations which include discussing matters with your family and work colleagues. 6. Ms Stock said that the tribunal needed to take account of the mitigating factors in this case and added that your family bereavement would have contributed to you acting in the way you did. She submitted that your dishonest actions were at the lower end of the spectrum and there has been no repetition of dishonesty since these events. She added that you posed no risk of repetition in the future. 7. In relation to insight, Ms Stock referred the tribunal to Dr A s witness statement in which he stated that you had reflected on the concerns identified in your e-portfolio, and that he was happy that you had reflected adequately on the events. She said that you are remorseful, embarrassed and ashamed of your dishonest actions and feel that you have let your family and colleagues down. 8. Ms Stock submitted that you have developed full insight into the concerns demonstrated by the fact that you acknowledged that you should have acted differently and that your actions were dishonest; you fully understand the impact of 19

20 your actions on the profession and on the public interest; and you understand the difference between being dishonest and making a mistake. 9. Ms Stock submitted that the appropriate sanction in this case would be a period of conditional registration. Workable conditions could be formulated which would protect the public interest and maintain public confidence in the profession. However, if the tribunal decides that suspension is the appropriate sanction, this should be for as short a period as possible, given the impact any sanction would have upon your personal and financial circumstances. The Tribunal s Decision 10. The decision as to the appropriate sanction, if any, to impose in this case is a matter for this tribunal exercising its own judgement. In reaching its decision, the tribunal has had regard to the SG and the statutory overarching objective, which includes protecting and promoting the health, safety and wellbeing of the public, promoting and maintaining public confidence in the profession, and promoting and maintaining proper professional standards and conduct. 11. The tribunal recognises that the purpose of a sanction is not to be punitive, although it may have a punitive effect. Throughout its deliberations, the tribunal has applied the principle of proportionality, balancing your interests with the public interest. 12. The tribunal has already provided detailed determinations on facts and impairment and it has taken those matters into account during its deliberations on sanction. Mitigating and Aggravating factors 13. Before reaching its decision on what sanction, if any, to place on your registration, the tribunal identified the aggravating and mitigating factors in your case. 14. It found the following mitigating factors: you have no previous adverse history with the GMC; the events took place at a stressful time in your life. 15. It found the following aggravating factors: your actions were particularly serious departures from GMP and breached fundamental tenets of the profession; your conduct was dishonest and you were unable to provide clear explanations for your dishonesty; 20

21 your written evidence and oral evidence before the tribunal contained inconsistencies that the tribunal was unable to reconcile; your actions could undermine patients trust in doctors and the public s trust in the medical profession; your limited insight into the matters which have brought you before this tribunal, and into the issue of dishonesty as a whole. No action 16. The tribunal first considered whether to conclude the case by taking no action. It determined that, given the serious nature of the concerns identified, and the absence of any exceptional circumstances, it would be neither sufficient, proportionate, nor in the public interest to conclude your case by taking no action. Conditions 17. The tribunal next considered whether it would be sufficient to impose conditions on your registration. It had regard to paragraphs 76 and 78 of the SG which set out guidance on the imposition of conditions and bore in mind that any conditions imposed would need to be appropriate, proportionate, workable and measurable. These state: 76 Conditions are likely to be workable where: a. the doctor has insight d. the doctor has the potential to respond positively to remediation, or retraining, or to their work being supervised. 78 Depending on the type of case (eg health, language, performance or misconduct.), some or all of the following factors being present (this list is not exhaustive) would indicate that conditions may be appropriate: a. no evidence that demonstrates remediation is unlikely to be successful, eg because of previous unsuccessful attempts. 18. In view of its findings on impairment, and given the serious concerns identified in relation to your conduct, which involves misleading and dishonest behaviour, the tribunal decided that conditional registration would not be a sufficient or proportionate sanction to meet the public interest in this case. In any event, the tribunal decided that there would have been no conditions which could be formulated to address the nature of your misconduct. The tribunal therefore determined that the imposition of conditions on your registration would not be an appropriate, sufficient or proportionate response in your case. 21

22 Suspension 19. The Tribunal then considered whether it would be appropriate to suspend your registration and if so for what period. The Tribunal has already noted in its determination on impairment that your misleading and dishonest actions, which were associated with your role as a doctor, were serious and constituted misconduct. Your conduct was a significant departure from the principles laid down in GMP. 20. Suspension is a means of marking the unacceptability of such conduct in cases where the doctor has developed some insight and where the dishonesty is not so serious as to be fundamentally incompatible with continued registration on the medical register. 21. The tribunal has noted your reflective statement. In this you characterised your dishonest actions as mistakes. Further, you have provided limited evidence of remediation you have undertaken. You apologised and acknowledged that your actions were unacceptable and stated that you were embarrassed by what you had done, and had let your father down as well as your family. However, there is no evidence in your reflective statement that you fully understand or appreciate the impact your dishonesty has on the reputation of the profession and on public confidence in the profession. 22. Whilst the tribunal notes Ms Stock s submission on your behalf that you have developed strategies to help you cope with highly stressful situations in the future, little information has been provided about what those strategies are and how they will help you. The tribunal also noted Ms Stock s submission that in Dr A s witness statement, he stated that you had reflected adequately on the concerns identified in your e-portfolio. However, it was clear from all the evidence before the tribunal that Dr A was unaware of the subsequent dishonesty. The tribunal concluded that his reference was therefore of limited value. Based on the evidence before it, the tribunal cannot be reassured that if faced with such a stressful situation again, you would not act dishonestly. 23. The tribunal has taken into account that you have demonstrated some, albeit limited, insight into the concerns; apologised to your GP Trainer for being dishonest in your communications with him; there has been no repetition of your dishonesty since these events; and that no patient was placed at risk of harm. The tribunal has therefore determined that your actions are not fundamentally incompatible with your continued registration on the medical register. 24. The tribunal is of the view that your dishonest conduct is remediable. It is therefore satisfied that a period of suspension is the appropriate and proportionate sanction. It considers that a period of suspension will provide you with time to reflect on your misconduct and develop an understanding of the importance of 22

23 integrity at all times, whilst also sending a signal to you, the profession and the public, that your conduct was unacceptable. 25. The tribunal was satisfied that erasure would be a disproportionate sanction in your case. The tribunal took account of your character references/testimonials and your previously unblemished reputation as a doctor. It also had regard to the fact that the matters found proved against you amounted to episodes of misconduct which, however, relate back to one single event. It determined that it would not be proportionate nor in the public interest to permanently deprive patients of the service of a valued and competent doctor who could continue to provide those services in the future. 26. The tribunal then considered the length of the suspension. In so doing it has taken into account the aggravating and mitigating factors. In all the circumstances the tribunal has determined that you should be suspended for a period of twelve months. The tribunal considers this period is necessary and proportionate to signal the seriousness with which it views your misconduct and to maintain public confidence in the medical profession; to have a deterrent effect; and to enable you to reflect fully on the tribunal s findings and to consider your appreciation of the importance of honesty and integrity. Review 27. Shortly before the end of the period of suspension, your case will be reviewed by a. A letter will be sent to you about the arrangements for the review hearing. The tribunal reviewing your case would be assisted by receiving the following: Evidence in a reflective statement or other document which shows that you have reflected on your misconduct, why your misconduct was serious and was not merely a series of mistakes, the impact of your dishonest actions on the medical profession and public confidence in the profession, the strategies you have adopted to deal with stressful situations, and the steps you have taken to prevent a repetition of your misconduct; Evidence that you have kept your clinical knowledge and skills up to date; Evidence of CPD courses you have attended and/or undertaken, and evidence of articles and journals which you have read and studied; for example a diary of all your training and your learning from these; Any other information that you consider would assist the tribunal. Determination on Immediate Order - 02/10/2017 Dr Tolba: 23