Dates: 02/10/ /10/2017, 09/10/2017 and 03/01/2018 to 12/01/2018 Medical Practitioner s name: Dr Francesco MOLLO GMC reference number:

Transcription

1 PUBLIC RECORD Dates: 02/10/ /10/2017, 09/10/2017 and 03/01/2018 to 12/01/2018 Medical Practitioner s name: Dr Francesco MOLLO GMC reference number: Primary medical qualification: Type of case New - Misconduct XXX Laurea 1987 Universita di Napoli Outcome on impairment Impaired XXX Summary of outcome Erasure Immediate order imposed Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Mr Lindsay Irvine Mrs Susan Staveley Mr Thomas George Tribunal Clerk: Mr Stuart Peachey Attendance and Representation: Medical Practitioner: Not present and not represented GMC Representative: 02/10/2017 to 06/10/2017 Ms Susannah Stevens, Counsel, instructed by GMC Legal, represents the General Medical Council. 03/01/2018 to 12/01/2018 Mr Paul Wakerley, Counsel, instructed by GMC Legal, represents the General Medical Council. 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. Determination on Facts - 09/01/2018 Background 1. Dr Mollo qualified in Naples in After graduation, in 1991, he obtained a Specialist qualification in Obstetrics and Gynaecology at the Italian College of Gynaecology. Dr Mollo moved to London in Prior to the events which are the subject of this hearing, in 2007, Dr Mollo had ceased working as a Specialist Consultant Gynaecologist and opened his own private practice, a beauty clinic, where he administered Botox and other aesthetic treatments from premises in the Royal Borough of Kensington and Chelsea. 3. At the time of the events from 2010 to 2012, Dr Mollo was practising at the Mollo Beauty Clinic. Following Dr Mollo s referral to the GMC due to concerns raised, he retired from Clinical Practice, and moved back to Naples, where he currently resides. 4. The allegation that has led to Dr Mollo s hearing relates to concerns about his conduct which have arisen from his clinical treatment of Patient A and his behaviour towards her. XXX The Outcome of Applications Made during the Facts Stage 5. The Tribunal granted the General Medical Council s ( GMC ) application, made pursuant to Rule 31 and 40 of the General Medical Council (Fitness to Practise Rules) 2004 as amended ( the Rules ), that it is appropriate to proceed with the hearing in Dr Mollo s absence. The Tribunal s full decision on the application is included at Annex A. 6. The Tribunal granted the GMC s application, made pursuant to Rule 41XXX of the Rules, that certain parts of this case should be heard in private. The Tribunal s full decision on the application is included at Annex B. 7. The Tribunal granted the GMC s application, made pursuant to Rule 34 (13)(14) of the Rules, to hear Dr B and Dr C s evidence via Video Link. The Tribunal s full decision on the application is included at Annex C. 2

3 8. The Tribunal granted the GMC s application, made pursuant to Rule 34 (13)(14) of the Rules, to hear Mr D s evidence via Video Link. The Tribunal s full decision on the application is included at Annex D. 9. The Tribunal determined, under Rule 29(2) of the Rules to adjourn the hearing part heard. The Tribunal s full decision on the application is included at Annex E. 10. The Tribunal granted the GMC s application, made pursuant to Rule 17(6) of the Rules, to amend Paragraph 2 head of charge of the Allegation, Schedule 1 XXX. The Tribunal s full decision on the application is included at Annex F. The Allegation and the Doctor s Response 11. The Allegation made against Dr Mollo is as follows: 1. On 22 February 2010 and 7 April 2011, you administered permanent filler injections to Patient A ( the injections ). Prior to the injections you failed to: a. perform a formal examination of Patient A; To be determined b. discuss: i. Patient A s concerns; To be determined ii. iii. iv: the indications for permanent fillers; To be determined potential complications of permanent fillers; To be determined the benefits of advising Patient A s GP about the injections. To be determined c. specifically consent Patient A for these injections; To be determined d. take photographs of Patient A; To be determined e. afford Patient A a cooling off period; To be determined f. document: i. any clinical findings; To be determined 3

4 ii. Patient A s concerns; To be determined iii. a rationale for using permanent fillers; To be determined iv. patient A s consent to the injections; To be determined v. the positioning of the injections; To be determined vi. vii. the batch numbers of the injections; To be determined the result of the injections. To be determined 2. On one or more of the dates in schedule 1 you administered cortisone and/or hyaluronidase acid injections to Patient A ( the remedial treatment ) and you failed to: a. discuss: i. Patient A s concerns; To be determined ii. iii. iv. available options with Patient A, including the possibility of surgical treatment; To be determined the option of obtaining a second opinion from another colleague or plastic surgeon; To be determined the rationale for the remedial treatment; To be determined v. the treatment with Patient A s GP. To be determined b. consent Patient A for the remedial treatment; To be determined c. take photographs of Patient A; To be determined d. document: i. Patient A s concerns; To be determined ii. the rationale for the remedial treatment; To be determined 4

5 iii. the batch numbers of the remedial treatment. To be determined e. provide remedial treatment that was likely to be effective. To be determined 3. Your behaviour towards Patient A was inappropriate in that: a. in 2011 you informed her that you did not want to treat her because she did not bring caviar from Russia for you; To be determined b. inappropriately socialised with Patient A, in that you: i. talked to Patient A about your personal life and relationships; To be determined ii. iii. iv. took Patient A to a restaurant; To be determined invited Patient A to your birthday party; To be determined went to a nightclub with Patient A. To be determined XXX The Facts to be Determined 12. In the light of there being no response to the Allegation made against Dr Mollo, the Tribunal will make determinations on the entirety of the Allegation against him. Factual Witness Evidence 13. The Tribunal received oral and written evidence on behalf of the GMC from the following witnesses: Patient A; XXX XXX Expert Witness Evidence 14. The Tribunal also received written and oral evidence from an expert witness, Mr D, Consultant Plastic, Reconstructive and Hand Surgeon. Mr D s evidence was 5

6 primarily focused on assisting the Tribunal in understanding the professional standards to be expected of a doctor in relation to Mr Mollo s alleged misconduct. Mr D provided to the Tribunal: Oral evidence; Good Surgical Practice, September 2002, Review date 2005; Good Medical Practice in Cosmetic Surgery, dated May 2003; Good Medical Practice ( GMP ) (2006 edition); Consent: patients and doctors making decisions together, 2 June 2008; A Medico-Legal Expert Report, dated 12 September 2016; and A Supplementary Medico-Legal Expert Report, dated 19 April Documentary Evidence 15. The Tribunal had regard to the documentary evidence provided by the parties. This evidence included, but was not limited to: Particulars of Claim, dated 14 June 2013; Defence document, dated 7 March 2014; Medical records for Patient A (dated, various): as provided by Hodge Jones and Allen LLP; London Medical & Aesthetic clinic; The Rejuvenation Clinic; Battersea Fields Practice; Mr E; 4x photographs, undated (produced by Patient A); Correspondence between the GMC and Dr Mollo in relation to undertakings, dated 2 October 2014 and 3 October 2014; XXX Montgomery v Lanarkshire Health Board (General Medical Council intervening), Supreme Court, 11 March 2015 [2015] UKSC 11, [2015] A.C. 1430; The Tribunal s Approach 16. 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. Dr Mollo 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. The Tribunal drew no adverse inference from Dr Mollo s non attendance. 17. In respect of the issue of Dr Mollo s duty of care implied by the allegation of failure in paragraph s 1 and 2 of the Allegation, the Tribunal found that the legal effect of the Supreme Court judgement of Montgomery v Lanarkshire as referred to in Paragraph 15 above was that the GMC guidance documents contemporaneous with the events alleged, set out the relevant standards and duties against which 6

7 Dr Mollo is to be judged, particularly in relation to the issue of informed consent. The Tribunal accepted the advice of the Legally Qualified Chair. 18. The Tribunal has considered all the evidence, both oral and documentary, together with the submissions made by Ms Stevens, Counsel, on behalf of the GMC. The Tribunal s Analysis of the Evidence, Submissions and Findings Witnesses Patient A 19. The Tribunal heard oral evidence and had sight of a signed witness statement from Patient A, dated 14 April The Tribunal found Patient A to be an honest and credible witness who strove to give an accurate account of events back in 2010 and XXX Mr D 21. The Tribunal considered Mr D to be an honest and compelling witness. The Tribunal had regard to Mr D s extensive experience in his field and noted he was open to other ideas presented to him during the course of his evidence. The Tribunal was satisfied that in his oral evidence, Mr D was examining the actions of Dr Mollo against the relevant standards of a doctor carrying out aesthetic procedures and not those of a Consultant Plastic Surgeon. 22. In relation to the fillers allegedly used by Dr Mollo, the Tribunal accepted Mr D s evidence that they remain permanently in the body, and although they maybe fractured, cannot be resolved. It also accepted Mr D s evidence that being permanent, it was essential for Dr Mollo to discuss with the patient the implications of using such fillers and any potential complications. Submission s on behalf of GMC 23. Arising from questions from the Tribunal to Mr D, he mentioned the Supreme Court case of Montgomery referred to above, GMP (2006 edition), Good Surgical Practice, Good Medical Practice in Cosmetic Surgery and Consent: patients and doctors making decisions together. Ms Stevens then made a submission on the legal effect of the Montgomery case and argued that it was authority that the standards of care set out in those publications represented those which applied by law to doctors at the time. She submitted that they were particularly pertinent to the issues of the doctor s duties in respect of informed consent in the allegations and that Mr D should be permitted to produce and refer to those guidelines. 7

8 24. The Tribunal considered carefully the Supreme Court Judgement and examined the four sets of guidelines referred to in the paragraph above. The Tribunal accepted the legal effect of the Judgement and confirmed from the published dates that the guidelines were those in force during the period set out in the Allegation. On the basis that they would still have to exercise their judgement on which represented binding obligations or duties, the Tribunal did not consider it would be unfair to Dr Mollo if it permitted the Mr D to produce and reference the relevant guidelines. Ms Stevens subsequently confirmed that in respect of Good Surgical Practice, Good Medical Practice in Cosmetic Surgery, the GMC did not rely on the standards set out therein and the Tribunal should not refer to them further, to which the Tribunal acceded. Obligation and/ or Duty 25. Having accepted the legal effect of the Supreme Court case of Montgomery, the Tribunal examined carefully the contemporaneous guidance on the examination and treatment of patients and the obtaining of informed consent which would have been available to Dr Mollo when treating Patient A. In particular in order to find that he had failed in a particular duty, it looked carefully for actions or responsibilities which were mandated as opposed to optional (even if good practice). Thus the Tribunal had particular regard to the guidance in the publications GMP (2006 edition) and Consent: patients and doctors making their decisions together, in making its decision whether Dr Mollo had an obligation and/or duty in his conduct with Patient A. Both publications state: the terms you must and you should are used in the following ways: Findings you must is used for an overriding duty or principle you should is used when we are providing an explanation of how you will meet the overriding duty you should is also used where the duty or principle will not apply in all situations or circumstances, or where there are factors outside your control that affect whether or how you can follow the guidance. Paragraph The Tribunal noted in Dr Mollo s medical notes that it is recorded that on 22 February 2010 and 7 April 2011 he administered Aquamid to Patient A. The evidence of Mr D, GMC expert, is that this substance is a permanent filler injection. The Tribunal is therefore satisfied on the balance of probabilities that Patient A was administrated permanent filler injections. 8

9 Paragraph 1(a) 27. The Tribunal noted in Patient A s statement, she stated During the two consultations where Dr Mollo administered Aquamid (22 February 2010 and 7 April 2011), he did not examine me at all. He never touched me. She also said in her statement that Dr Mollo had observed some material in the corner of her eye in the tear drop [sic]. The Tribunal found this could in no way constitute a formal examination. This was confirmed in the course of Patient A s oral evidence to the Tribunal. 28. The Tribunal examined Dr Mollo s medical notes of the relevant consultations. The Tribunal saw no evidence in the medical notes of the consultation indicating Dr Mollo had performed a formal examination of Patient A. 29. In relation to an obligation and/or duty, the Tribunal noted GMP (2006 edition) which states: 2(a) Good clinical care must include: a. adequately assessing the patient s conditions, taking account of the history (including the symptoms, and psychological and social factors), the patient s views, and where necessary examining the patient 30. The Tribunal accepted Mr D s evidence that performing a formal examination was necessary where one is injecting permanent filler into a patient, and a failure to carry out a formal examination would fall seriously below the standards expected of a reasonable doctor. 31. Based on the evidence before The Tribunal, it was satisfied on the balance of probabilities that Dr Mollo did not perform a formal examination on Patient A and this constituted a failure in Dr Mollo s duty and obligation in this regard. 32. The Tribunal therefore found Paragraph 1(a) of the Allegation proved. Paragraph 1(b)(i) 33. The Tribunal noted in Patient A s statement, she stated Before Dr Mollo injected the Aquamid he didn t really discuss with me what I wanted or talk about any concerns that I had. In Patient A s oral evidence to the Tribunal, she stated that it was simply plumping up that was her main concern and I did not express concern to change a filler as I trusted him. 34. The Tribunal examined Dr Mollo s medical notes of the relevant consultation in order to access whether such a discussion had taken place. The Tribunal saw no 9

10 evidence in the medical notes of the consultation indicating that Dr Mollo discussed Patient A s concerns. 35. In relation to an obligation and/or duty, the Tribunal considered the word discuss common to this subparagraph and the three succeeding ones. 36. The Tribunal noted Consent: patients and doctors making decisions together, which states: 2(b) Whatever the context in which medical decisions are made, you must work in partnership with your patients to ensure good care. In doing so, you must: b. discuss with patients what their diagnosis, prognosis, treatment and care involve 10 You should explore these matters with patients, listen to their concerns, ask for and respect their views, and encourage them to ask questions 37. The Tribunal also noted GMP (2006 edition) which states: 22(a)(b) To communicate effectively you must: a. listen to patients, ask for and respect their views about their health, and respond to their concerns and preferences b share with patients, in a way they can understand, the information they want or need to know about their condition, its likely progression, and the treatment options available to them, including associated risks and uncertainties 38. The above paragraphs required decisions to be made in partnership and the Tribunal considered that word discuss implied a two way exchange of views and information. 39. The Tribunal accepted Patient A s evidence and this, together with the lack of any medical note, persuaded the Tribunal that it was satisfied on the balance of probabilities that Dr Mollo did not discuss Patient A s concerns. The Tribunal found that Dr Mollo failed in his duty and obligation in this regard. 40. The Tribunal therefore found Paragraph 1(b)(i) of the Allegation proved. 10

11 Paragraph 1(b)(ii) 41. The Tribunal noted in Patient A s statement, she stated he said that I should try something that would be better for my face. That was the reason that he recommended Aquamid. 42. The Tribunal had regard to the Particulars of Claim, where it was stated on Dr Mollo s behalf: The defendant will say that: b. The Claimant decided of her own volition to undergo a more permanent form of treatment with Aquamid 43. The Tribunal had regard to Dr Mollo s medical notes of the relevant consultation and noted there was no evidence in the notes indicating that Dr Mollo had discussed the implications for permanent fillers. 44. In relation to an obligation and/or duty, the Tribunal noted GMP (2006 edition) which states: 22(b) To communicate effectively you must: b share with patients, in a way they can understand, the information they want or need to know about their condition, its likely progression, and the treatment options available to them, including associated risks and uncertainties 45. The Tribunal also noted the guidelines in Consent: patients and doctors making decisions together which state: 9(c)(e) You must give patients the information they want or need about: c. options for treating or managing the condition, including the option not to treat 11

12 e. the potential benefits, risks and burdens, and the likelihood of success, for each option; 46. The Tribunal considered those duties in relation to informed consent particularly important given the nature of the product he intended using. 47. Based on the evidence before The Tribunal, it was therefore satisfied on the balance of probabilities that Dr Mollo did not discuss the indications for permanent fillers with Patient A. The Tribunal also found that Dr Mollo failed in his duty in this regard. 48. The Tribunal therefore found Paragraph 1(b)(ii) of the Allegation proved. Paragraph 1(b)(iii) 49. The Tribunal noted in Patient A s statement, she stated Dr Mollo never discussed or advised me of the potential complication of Aquamid. He said nothing at all about the possible side effects or complications. In Patient A s oral evidence, she stated that she trusted Dr Mollo. 50. The Tribunal had regard to the Particulars of Claim, where it was stated that Dr Mollo: The Defendant [Dr Mollo] was negligent in that he: a. Advised the Claimant to use permanent filler without setting out the advantages and disadvantages of doing so 51. The Tribunal also noted this was denied by Dr Mollo in his defence and his assertion she was clearly aware that its effects would be permanent. 52. The Tribunal had regard to Dr Mollo s medical notes of the relevant consultation. The Tribunal saw no mention in the medical notes of the consultation indicating that Dr Mollo discussed the potential complications of permanent fillers with Patient A. 53. In relation to an obligation and/or duty, the Tribunal noted the guidelines in Consent: patients and doctors making decisions together which states: 9(e) You must give patients the information they want or need about: e. the potential benefits, risks and burdens, and the likelihood of success, for each option; 12

13 29(a)(b)(c) In order to have effective discussions with patients about risk, you must identify the adverse outcomes that may result from the proposed options. This includes the potential outcome of taking no action. Risks can take a number of forms, but will usually be: a. side effects b. complications c. failure of an intervention to achieve the desired aim Risks can vary from common but minor side effects, to rare but serious adverse outcomes possibly resulting in permanent disability or death 32 You must tell patients if an investigation or treatment might result in a serious adverse outcome, even if the likelihood is very small. You should also tell patients about less serious side effects or complications if they occur frequently, and explain what the patient should do if they experience any of them. 54. Notwithstanding Dr Mollo s denial in the civil proceedings, the Tribunal preferred the evidence of Patient A on this issue and it was therefore satisfied on the balance of probabilities that Dr Mollo did not discuss the indications for permanent fillers with Patient A. 55. The Tribunal found Dr Mollo failed in his duty and obligation to discuss the potential risks. 56. The Tribunal therefore found Paragraph 1(b)(iii) of the Allegation proved. Paragraph 1(b)(iv) 57. The Tribunal noted in Patient A s written evidence, she stated that Dr Mollo never spoke to me about informing my GP that I was going to have or that I had. He never spoke about the GP at all. However, based on the consent form that she signed with another clinic, dated 26 April 2010 and her oral evidence, it was not clear to the Tribunal that she would have wanted her GP informed. 58. The Tribunal had regard to Dr Mollo s medical notes of the relevant consultation. The Tribunal saw no evidence in the medical notes of the consultation indicating that Dr Mollo discussed the benefits of advising Patient A s GP about the injections. 13

14 59. In relation to an obligation and/or duty, the Tribunal noted GMP (2006 edition), which state: 52 If you provide treatment or advice for a patient, but are not the patient s general practitioner, you should tell the general practitioner the results of the investigations, the treatment provided and any other information necessary for the continuing care of the patient, unless the patient objects. 53 If a patient has not been referred to you by a general practitioner, you should ask for the patient s consent to inform their general practitioner before starting treatment, except in emergencies or when it is impractical to do so. If you do not inform the patient s general practitioner, you will be responsible for providing or arranging all necessary after-care. 60. The Tribunal had regard to Mr D s expert report, where he stated If a patient has a permanent filler, then it would be prudent to inform the general practitioner about performing such a procedure on a patient. 61. However, having regard to the above GMP guidance and the ambiguity of Patient A s position on this issue, the Tribunal did not consider Dr Mollo had a duty to advise Patient A s GP, thus not falling seriously below the standards expected of a reasonably competent doctor in this regard. 62. The Tribunal therefore found Paragraph 1(b)(iv) of the Allegation not proved. Paragraph 1(c) 63. The Tribunal had regard to Dr Mollo s medical notes on Patient A which included a consent form and noted Mr D s evidence in which he described that consent form, signed on 26 April 2010 as generic. The Tribunal noted this consent form was signed two months after the first injection of Aquamid on 22 February In Mr D s expert report, based on Patient A s testimony, he indicates the lack of discussion by Dr Mollo of her concerns, any findings on examination, the aims of intervention, and concludes that he [Dr Mollo] has not formally consented the patient for Aquamid injections. In his oral evidence, Mr D said he considered that specific consent was a minimum requirement. 65. In relation to an obligation and/or duty, the Tribunal noted the guidelines in Consent: patients and doctors making decisions together which state: 44 Before accepting a patient s consent, you must consider whether they have been given the information they want or need, and how well they 14

15 understand the details and implications of what is proposed. This is more important than how their consent its expressed or recorded 51 You must use the patient s medical records or a consent form to record the key elements of your discussion with the patient. This should include the information you discussed, any specific requests by the patient, any written, visual or audio information given to the patient, and details of any decisions that were made. 66. The Tribunal also noted GMP (2006 edition) which states: 36 You must be satisfied that you have consent or other valid authority before you undertake any examination or investigation, provide treatment 67. The Tribunal had seen no evidence in the medical notes of the relevant consultation indicating that Dr Mollo specifically obtained consent from Patient A for these injections. Based on the evidence before the Tribunal, it was therefore satisfied on the balance of probabilities that Dr Mollo failed to specifically consent Patient A for these injections. The Tribunal also found Dr Mollo failed in his duty in this regard. 68. The Tribunal therefore found Paragraph 1(c) of the Allegation proved. Paragraph 1(d) 69. The Tribunal noted in Patient A s statement, she stated I don t think that Dr Mollo ever took photographs of me during any of my appointments. Maybe once he did, maybe never but I don t remember him doing. In Patient A s oral evidence, she said she had no photographs from Dr Mollo. However, she directed the Tribunal to her own personal photographs that she had produced. 70. The Tribunal noted that Patient A had consented to photographs being taken in the consent form, signed on 26 April However, the Tribunal took into account this form was signed after the treatment was completed. 71. In Mr D s expert report, he stated He has not taken photographs prior to the injections that were performed. In his oral testimony, Mr D stated that as a surgeon, in his view the taking of photographs was important, but conceded that there was a range of opinion on this. 72. The Tribunal had regard to Dr Mollo s medical notes of the relevant consultations and found no evidence that Dr Mollo had taken any photographs. It acknowledged that it would have been prudent for Dr Mollo to have taken photographs if only to protect his interests. However, the Tribunal noted there is 15

16 nothing in the GMP guidance or Consent: patients and doctors making decisions together that suggested there was any mandate to do so. 73. The Tribunal concluded Dr Mollo did not fail to take photographs as alleged there was no overriding duty on him to do so. 74. The Tribunal therefore found Paragraph 1(d) of the Allegation not proved. Paragraph 1(e) 75. The Tribunal noted in Patient A s statement, she stated When Dr Mollo first suggested that I have Aquamid, I was seeing him for Teosyal injections. He switched my mind and then did it there and then. She further stated The second time that he administered Aquamid, I had gone in to see him and I said that I wasn t happy and that I had an excavation where he had injected something to dissolve the Aquamid. 76. In Mr D s expert report, he stated When a patient has non-permanent fillers such as hyaluronic acid, it is acceptable to assess the patient, take consent and inject on the same day. This is accepted practice in the United Kingdom. When a permanent filler, such as Aquamid is considered, then it would be prudent to consider a cooling off period. 77. The Tribunal again examined carefully the GMP and Consent guidelines in the context of the Montgomery Judgement. Although the Tribunal agreed it would have been prudent to have afforded a cooling off period, there is no specific mandate in the guidance requiring Dr Mollo to have done so. 78. Based on the evidence before the Tribunal, on the balance of probabilities, it found Patient A was not given time to consider the injections, thus not affording Patient A with a cooling off period. The Tribunal noted there is nothing in the guidance that states Dr Mollo had a duty to afford a cooling off period. 79. The Tribunal therefore found Paragraph 1(e) of the Allegation not proved. Paragraph 1(f)(i),(ii),(ii),(iv),(v),(vi),(vii) 80. The Tribunal had regard to Dr Mollo s medical notes of the relevant consultations. The Tribunal saw no evidence in the medical notes that Dr Mollo had documented any of the following: clinical findings; Patient A s concerns; a rationale for using permanent fillers; patient A s consent to the injections; the positioning of the injections; the result of the injections; and 16

17 the batch numbers of the injections. 81. In Mr D s expert report, he stated In the notes there is no mention about the patient having an unsatisfactory result and what her concerns were following the injection. Mr D s report also stated He did not use batch numbers of the treatment that were used. Recording batch numbers is good practice. 82. In relation to an obligation and/or duty, the Tribunal noted GMP (2006 edition) which states: 3(f)(g) In providing care you must: (f). keep clear, accurate and legible records, reporting the relevant clinical findings, the decisions made, the information given to patients, and any drugs prescribed or other investigation or treatment (g). make records at the same time as the events you are recording or as soon as possible afterwards 83. The Tribunal also noted the guidelines in Consent: patients and doctors making decisions together which states: 51 You must use the patient s medical records or a consent form to record the key elements of your discussion with the patient. This should include the information you discussed, any specific requests by the patient, any written, visual or audio information given to the patient, and details of any decisions that were made. 84. The Tribunal considered Dr Mollo had a duty to document all of the above with the exception of the batch numbers of the injections. The Tribunal accepted Mr D s evidence and concluded Dr Mollo s failure to document the batch numbers of the injections was not mandatory. 85. Based on the evidence before it, the Tribunal found, on the balance of probabilities Paragraph 1(f)(i),(ii),(iii),(iv),(v) and (vii) of the Allegation proved. The Tribunal did not find Paragraph 1(f)(vi) of the Allegation proved as Dr Mollo did not have a duty to document the batch numbers. Paragraph The Tribunal noted from Dr Mollo s medical notes relating to the dates in set out Schedule 1 that it was recorded that he administered Cortisone and/ or Hyaluronidase injections to Patient A. The Tribunal was satisfied on the balance of 17

18 probabilities on the basis of this evidence that he administered the products and dates set out in Schedule 1. Paragraph 2(a)(i) 87. The Tribunal noted in Patient A s statement, she stated I was not happy with the results of the first Aquamid injections. When I saw Dr Mollo in February 2011 I told him I wasn t happy with the outcome of the injections and that the Aquamid was visible [ ] After I told Dr Mollo how unhappy I was with the results of the Aquamid injections when I saw him at three or four consultations between May and July 2011 At those consultations I had injections to dissolve the Aquamid in my face. Dr Mollo said he would dissolve it and straight away he did an injection to dissolve it. 88. In Mr D s expert report, he stated Following the Aquamid injections, he has not discussed what Patient A s concerns were. 89. The Tribunal also examined Dr Mollo s medical notes of the relevant consultations which contained no evidence to suggest he had discussed Patient A s concerns. 90. The Tribunal adopted the same position in relation to the meaning discuss as it taken in Paragraph 1(b) of the Allegation, namely that it implied a two way exchange of views and information. 91. In relation to an obligation and/or duty, the Tribunal noted GMP (2006 edition) which states: 2(a) Good clinical care must include: a. adequately assessing the patient s conditions, taking account of the history (including the symptoms, and psychological and social factors), the patient s views, and where necessary examining the patient 92. The Tribunal noted whilst Patient A did convey her concerns to Dr Mollo and he told her that he would dissolve the Aquamid, the Tribunal could not identify any discussion in the manner implied above between them and Patient A relating to those concerns. The Tribunal accepted Mr D and Patient A s evidence and concluded dissolving was a statement, not a discussion and Dr Mollo had a duty to discuss concerns with a patient. 93. The Tribunal therefore found Paragraph 2(a)(i) of the Allegation proved. 18

19 Paragraph 2(a)(ii) 94. The Tribunal noted in Patient A s statement, she stated Dr Mollo didn t discuss what my options were with me or talk about things that I could try. He just said that he would dissolve the Aquamid [ ] Dr Mollo did not discuss the possibility of surgical treatment with me at all [ ] When I contacted the Aquamid company in September 2011 [ ] I was told that the only way to remove the Aquamid from my face was to have surgery. 95. The Tribunal had regard to Dr Mollo s medical notes of the relevant consultation and found no reference to any discussion of the options in those notes. 96. In Mr D s expert report, he stated I have performed further literature searches in this area and there is no evidence in the literature that shows hyaluronidase or cortisone would be effective in removing Aquamid. Surgery is the main stay for removing permanent fillers such as this. 97. In relation to an obligation and/or duty, the Tribunal noted GMP (2006 edition) which states: 2(a) Good clinical care must include: a. adequately assessing the patient s conditions, taking account of the history (including the symptoms, and psychological and social factors), the patient s views, and where necessary examining the patient b. providing or arranging advice, investigations or treatment where necessary 98. The Tribunal also noted the guidelines in Consent: patients and doctors making decisions together which states: 2(a)(b)(c) Whatever the context in which medical decisions are made, you must work in partnership with your patients to ensure good care. In doing so, you must: a. listen to patients and respect their views about their health b. discuss with patients what their diagnosis, prognosis, treatment and care involve c. share with patients the information they want or need in order to make decisions 9(b)(c)(e) You must give patients the information they want or need about: 19

20 b. any uncertainties about the diagnosis or prognosis, including options for further investigations c. options for treating or managing the condition, including the option not to treat e. the potential benefits, risks and burdens, and the likelihood of success, for each option; 36 you must keep up to date with developments in your area of practice, which may affect your knowledge and understanding of the risks associated with the investigations or treatments that you provide 99. The evidence before the Tribunal on available options therefore consisted of Mr D s evidence on surgical removal and Patient A s evidence of her conversation with the manufacturer that surgical removal is the only option. The Tribunal found Dr Mollo was mandated by the clinical guidance set out above to discuss options with Patient A The Tribunal therefore found Paragraph 2(a)(ii) of the Allegation proved. Paragraph 2(a)(iii) 101. In Patient A s statement, she stated Dr Mollo and I never discussed the option of obtaining a second opinion, before or after the treatment Responding to Tribunal questions on whether Dr Mollo should have taken advice form a fellow practitioners, Mr D stated indeed, yes, and I maintain that. He went on to say In the absence of that, a plastic surgeon who may not have had experience dealing with it but an understanding of how to deal with a permanent filler and how to take it out surgically The Tribunal had regard to Dr Mollo s medical notes of the relevant consultation and could find no evidence of any discussion about seeking a second opinion In relation to an obligation and/or duty, the Tribunal noted GMP (2006 edition) which states: 2(c) Good clinical care must include: 20

21 c. referring a patient to another practitioner, when this is in the patient s best interests. 3(j) In providing care you must: j. make good use of the resources available to you Based on The Tribunal s findings on Paragraph 2(a)(ii), the Tribunal was satisfied that Dr Mollo did not discuss any options with Patient A The Tribunal therefore found Paragraph 2(a)(iii) of the Allegation proved. Paragraph 2(a)(iv) 107. In Patient A s statement, she stated Dr Mollo said that he would dissolve the Aquamid and he started the treatment. I now know that he injected me with cortisone and hyrolonidise The Tribunal had regard to Dr Mollo s medical notes of the relevant consultation and saw no evidence in those notes that mentioned the rationale for the administration of the products In relation to an obligation and/or duty, the Tribunal noted the guidelines in Consent: patients and doctors making decisions together which states 2(b)(c) Whatever the Context in which medical decisions are made, you must work in partnership with your patients to ensure good care. In so doing, you must: b. discuss with patients what their diagnosis, prognosis, treatment and care involve c. share with patients the information they wany or need in order to make decisions 9(d) You must give patients the information they want or need about: 21

22 d. the purpose of any proposed investigation or treatment and what it will involve 110. The Tribunal concluded on the balance of probabilities, based on the evidence before it that Dr Mollo did not discuss the rationale for the remedial treatment with Patient A. Further, the Tribunal considered Dr Mollo had a duty to discuss this with Patient A The Tribunal therefore found Paragraph 2(a)(iv) of the Allegation proved. Paragraph 2(a)(v) 112. Based on The Tribunal s findings at Paragraph 1(b)(iv), there was no evidence that Dr Mollo did inform Patient A s GP. However, it adopted the same reasoning as Paragraph 1(b)(iv) that the absence of a specific mandate in the guidelines meant that Dr Mollo did not fall below the standards expected in relation to this duty. The Tribunal further accepted Mr D s evidence that at its highest it would have been desirable for Dr Mollo to inform Patient A s GP The Tribunal therefore found Paragraph 2(a)(v) of the Allegation not proved. Paragraph 2(b) 114. The Tribunal had regard to Dr Mollo s medical notes of the relevant consultation which make no mention of obtaining specific consent for the remedial treatment In relation to an obligation and/or duty, the Tribunal noted GMP (2006 edition) which states: 36 You must be satisfied that you have consent or other valid authority before you undertake any examination or investigation, provide treatment [ ] Usually this will involve providing information to patients in a way they can understand, before asking for their consent 116. The Tribunal also noted the guidelines in Consent: patients and doctors making decisions together, which states: 26 If you are the doctor undertaking an investigation or providing treatment, it is your responsibility to discuss it with the patient 29(a)(b)(c) In order to have effective discussion with patients about risk, you must identify the adverse outcomes that may result from the proposed option [ ] Risks can take a number of forms, but will usually be: 22

23 a. side effects b. complications c. failure of an intervention to achieve the desired aim 44 Before accepting a patient s consent, you must consider whether they have been given the information they want or need, and how well they understand the details and implications of what is proposed. This is more important than how their consent is expressed or recorded The Tribunal also had regard to Paragraph 87 of the Montgomery v Lanarkshire Judgement referred to above which states An adult person of sound mind is entitled to decide which, if any, of available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken The Tribunal concluded on the balance of probabilities, based on the evidence before it that Dr Mollo did not consent Patient A for the remedial treatment The Tribunal therefore found Paragraph 2(b) of the Allegation proved. Paragraph 2(c) 120. The Tribunal had regard to Dr Mollo s medical notes of the relevant consultation and found no mention of the taking of any photographs In Mr D s report, he stated He has not taken photographs prior to the injections that were performed The Tribunal has not seen any evidence to persuade it that Dr Mollo took photographs of Patient A. However, for the reasons set out in its determination on Paragraph 1(d) of the Allegation, the Tribunal did not consider Dr Mollo had a duty to take the photographs The Tribunal therefore found Paragraph 2(c) of the Allegation not proved. Paragraph 2(d)(i),(ii),(iii) 124. The Tribunal had regard to Dr Mollo s medical notes of the relevant consultation, it could find no mention of elements set out in sub paragraphs (i), (ii) and (iii) In Mr D s expert report, he stated He has not documented the findings of his examination. He has not documented the aims of intervention [ ] He has not 23

24 discussed the rationale for cortisone and hyaluronidase injections [ ] He did not use batch numbers of the treatment that were used. Recording batch numbers is good practice. Not doing so would be seen as below but not seriously below the standard expected of an aesthetic practitioner performing such procedures In relation to an obligation and/or duty in respect of Paragraph 2(d)(i) and (ii) of the Allegation, the Tribunal noted GMP (2006 edition) which states: 3(f)(g) In providing care you must: f. keep clear, accurate and legible records, reporting the relevant clinical findings, the decisions made, the information given to patients, and any drugs prescribed or other investigation or treatment g. make records at the same time as the events you are recording or as soon as possible afterwards 127. The Tribunal also noted the guidelines in Consent: patients and doctors making decisions together which states: 9(d)(e) You must give patients the information they want or need about: d. the purpose of any proposed investigation or treatment and what it will involve e. the potential benefits, risks and burdens, and the likelihood of success, for each option; 26 If you are the doctor undertaking an investigation or providing treatment, it is your responsibility to discuss it with the patient 51 You must use the patient s medical records or a consent form to record the key elements of your discussion with the patient. This should include the information you discussed, any specific requests by the patient, any written, visual or audio information given to the patient, and details of any decisions that were made Based on all the evidence before the Tribunal, it concluded on the balance of probabilities that Dr Mollo failed in his duty to document Patient A s concerns and the rationale for the remedial treatment. 24

25 129. However, for the reasons set out in its findings at Paragraph 1(f)(vii), the Tribunal did not find Dr Mollo failed in his duty to document the batch numbers of the remedial Treatment The Tribunal therefore found Paragraph 2(d)(i) and (ii) of the Allegation proved The Tribunal did not find Paragraph 2(d)(iii) of the Allegation proved. Paragraph 2(e) 132. In Patient A s statement, she stated Dr Mollo said that he would dissolve the Aquamid and he started the treatment. I now know that he injected me with cortisone and hyrolonidise [ ] Dr Mollo didn t discuss what my options were with me or talk about things that I could try. He just said that he would dissolve the Aquamid The Tribunal noted Dr Mollo s response to the Particulars of Claim, specifically At this point, the results were encouraging, but the Claimant indicated that she now wished for the Aquamid injected to not just be reduced, but to be completely eliminated. Therefore, in addition, subsequently the Defendant attempted to injected hyaluronidase enzyme in an attempt to completely dissolve the Aquamid remaining In Mr D s expert report, he stated I have performed further literature searches in this area and there is no evidence in the literature that shows hyaluronidase or cortisone would be effective in removing Aquamid. Surgery is the main stay for removing permanent fillers such as this In relation to an obligation and/or duty, the Tribunal noted GMP (2006 edition) which states: 3(c) In providing care you must: c. provide effective treatments based on the best available evidence 136. Based on the evidence before the Tribunal, it was of the view that Dr Mollo s intention for the remedial treatment was to dissolve the permanent fillers. The Tribunal accepted the only way to successfully remove the permanent fillers was surgical The Tribunal accepted Mr D s evidence that the remedial treatment administered by Dr Mollo was unlikely to be effective. In view of the duty set out in 25

26 the guidelines above, the Tribunal therefore found Paragraph 2(e) of the Allegation proved. Paragraph 3(a) 138. In Patient A s statement, she stated Dr Mollo asked me to bring him back some caviar. I said that it would be expensive, I couldn t bring any back because it was expensive and when I told him he told me that I was no longer his patient. His disposition changed completely, his friendliness gone. In Patient A s oral evidence, she reiterated that Dr Mollo was unhappy that she had not brought him back any caviar In relation to the issue of the appropriateness of the conduct, the Tribunal noted GMP (2006 edition) which states: 39 Before you end a professional relationship with a patient, you must be satisfied that your decision is fair and does not contravene the guidance in paragraph 7. You must be prepared to justify your decision. You should inform the patient of your decision and your reasons for ending the professional relationship, wherever practical in writing. 57 You must make sure that your conduct at all times justifies your patients trust in you and the public s trust in the profession The Tribunal accept Patient A s evidence. The Tribunal was of the view that refusing to treat Patient A and terminating their professional relationship in the manner she described is inappropriate conduct, not in the public interest and would undermine the public trust in the profession The Tribunal therefore found Paragraph 3(a) of the Allegation proved. Paragraph 3(b)(i) 142. In deliberating on this paragraph, the Tribunal considered the word socialising in its everyday meaning, this covering interacting, conversing and meeting XXX During Patient A s oral evidence, she confirmed to the tribunal that she knew details about his personal life XXX In relation to the issue of the appropriateness of the conduct, the Tribunal noted GMP (2006 edition) which states: 57 You must make sure that your conduct at all times justifies your patients trust in you and the public s trust in the profession. 26

27 145. The Tribunal accepted Patient A s evidence. The Tribunal accepted it was more likely than not, based on the evidence before it, that Dr Mollo inappropriately socialised with Patient A, in that he talked to Patient A about his personal life and relationships. The Tribunal was of the view that discussing details of his personal life as stated above, is not appropriate conduct between a doctor and his patient, and would undermine public confidence in the profession The Tribunal therefore found Paragraph 3(a)(i) of the Allegation proved. Paragraph 3(b)(ii),(iii),(iv) 147. The Tribunal noted Patient A s comments on the Particulars of Claim, where it is stated Aware that the Claimant was unhappy with her treatment, the Defendant invited her to a restaurant and then to his birthday party. On another occasion, they went to a nightclub together. In her evidence to the Tribunal Patient A was very specific about the venues, others present, and when she went with Dr Mollo for dinner, his birthday party and to nightclub The Tribunal noted Dr Mollo s response to the Particulars of Claim, where it states Paragraph 12 is denied. The Defendant recalls that the Claimant offered to take him out for his birthday to thank him for the treatment he had provided thus far. It is denied that the Defendant invited her to a restaurant and/or his birthday In relation to the issue of the appropriateness of the conduct, the Tribunal noted GMP (2006 edition) which states: 57 You must make sure that your conduct at all times justifies your patients trust in you and the public s trust in the profession Having considered all the evidence before the Tribunal, it preferred the evidence of Patient A and found that it is more likely than not that Dr Mollo inappropriately socialised with her, in that he took Patient A to a restaurant, invited her to his birthday party and went to a nightclub. The Tribunal found Dr Mollo s conduct amounted to inappropriate socialising The Tribunal therefore find Paragraphs 3(b)(ii), (iii) and (iv) of the Allegation proved. XXX 27