PUBLIC RECORD Dates: 19/03/2018 20/03/2018 Medical Practitioner s name: Dr Vytautas LIESIS GMC reference number: 7193897 Primary medical qualification: Type of case New - Misconduct MD 2001 Vilniaus Universiteto Outcome on impairment Not impaired Summary of outcome Case concluded Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Mr Paul Moulder Ms Sara Fenoughty Dr Ruth Knowles Tribunal Clerk: Ms D Montgomery Attendance and Representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Present and not represented n/a Ms Rebecca Vanstone, Counsel Attendance of Press / Public The hearing was all heard in public. 1
Determination on Facts - 19/03/2018 Background 1. Dr Liesis qualified in 2001 and prior to the events which are the subject of the hearing Dr Liesis worked primarily as a locum middle grade doctor in emergency medicine. 2. The allegation that has led to Dr Liesis hearing can be summarised as his failure to disclose the fact that he was subject to an ongoing General Medical Council (GMC) investigation at the time of completing a Pre and Post checks document when applying for a Locum Middle Grade post in the Emergency Department at South Tyneside NHS Foundation Trust in September 2015. The Outcome of Application(s) made during the Hearing 3. The Tribunal refused the GMC s application, made pursuant to Rule 17(6) of the GMC (Fitness to Practise) Rules 2004 as amended, that the Tribunal use its power to amend paragraph 3 of the allegation. The Tribunal s determination is set out at Annex A. The Allegation and the Doctor s Response 4. The Allegation made against Dr Liesis is as follows: 1. In or around September 2015 you, via your recruitment agency, submitted an application for a Locum Middle Grade post in the Emergency Department at South Tyneside NHS Foundation Trust. Admitted and found proved 2. On or around 21 September 2015 you: a. completed The NHS Pre and Post Appointment checks Direction 2002 ( the Pre and Post checks document ) indicating at Part B (1) that you were not subject to any fitness to practise investigation or proceedings by a regulatory body in the UK; To be determined b. signed the Pre and Post checks document. Admitted and found proved 3. At the time that you completed the Pre and Post checks document you knew that you were subject to an ongoing GMC investigation. To be determined 2
4. Your actions at paragraph 2 and 3 above were dishonest. To be determined The Admitted Facts 5. At the outset of these proceedings, Dr Liesis made admissions to some paragraphs and sub-paragraphs of the Allegation, as set out above, in accordance with Rule 17(2)(d) of the Rules. In accordance with Rule 17(2)(e), the Tribunal announced these paragraphs and sub-paragraphs of the Allegation as admitted and found proved. The Facts to be Determined 6. In light of Dr Liesis response to the Allegation made against him, the Tribunal is required to determine whether Dr Liesis completed the Pre and Post checks document indicating that he was not subject to any fitness to practise investigation or proceedings by a regulatory body in the UK. It is also required to determine if his actions in doing so were dishonest on the basis that he was aware at the time of completing the document that he was subject to an ongoing GMC investigation. Factual Witness Evidence 7. The Tribunal received evidence on behalf of the GMC from the following witnesses: Mr A, Consultant in Emergency Medicine, South Tyneside NHS Foundation Trust, in person Dr B, Consultant Physician and Medical Director, South Tyneside NHS Foundation Trust, by video link. 8. Dr Liesis provided a written response to the GMC allegation in an undated letter to the GMC. Ms Vanstone confirmed that the letter had been received by the GMC in September 2017. Dr Liesis also gave oral evidence at the hearing. Documentary Evidence 9. The Tribunal had regard to the documentary evidence provided by the parties. This evidence included, but was not limited to: Dr Liesis Curriculum Vitae Total Assist reference forms The Pre and Post checks document Email from Mr A to Medical Personnel locums confirming Dr Liesis booking Telephone note of conversation between the GMC and Mr A Correspondence between the GMC and Dr Liesis relating to the GMC investigation 3
Dr Liesis written response to the allegation A reference, dated 9 November 2015, provided for Dr Liesis by Mr A. The Tribunal s Approach 10. 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 Liesis 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. 11. The Legally Qualified Chair referred the Tribunal to the recent Supreme Court judgment in the case of Ivey v Genting Casinos (UK) Limited [2017] UKSC 67, in which Lord Hughes set out the correct test for dishonesty, which is as follows: When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest. The Tribunal s Analysis of the Evidence and Findings 12. The Tribunal has considered each outstanding paragraph of the Allegation separately and has evaluated the evidence in order to make its findings on the facts. Paragraph 2(a) 13. The GMC case rested centrally on the evidence of Mr A. Mr A confirmed that when a locum doctor was required, he would contact the Medical Staffing department at the Trust and they would forward him copies of CVs, details of professional courses attended and references for potential candidates. Mr A confirmed that as the head of the emergency department, the decision to employ a locum doctor was made by him. He stated that he was aware that Dr Liesis was under investigation by the GMC on the basis of the information provided by Dr Liesis locum agency but he was content to employ him as the references provided did not raise any concerns in terms of patient care or safety or clinical concerns. 4
14. Mr A recalled meeting with Dr Liesis on his first day in the department to provide a verbal induction. He stated that he was aware that Dr Liesis would have been asked to fill out the Pre and Post checks document but that this would have been provided by Medical Staffing directly when Dr Liesis attended to sort out his ID badge and other items. 15. In his supplementary witness statement, dated 22 January 2018, Mr A confirmed that he does not receive a copy of the Pre and Post checks document and is not responsible for collecting a copy of the completed form as the form was provided to Medical Staffing by the doctor. As far as he could recall, he had never completed such a form on behalf of a doctor. 16. Dr Liesis evidence was that he had been provided with an induction pack prior to attending for his induction meeting with Mr A and that this included the Pre and Post checks document. Dr Liesis stated that Mr A completed the Pre and Post checks document on his behalf during the induction and asked him to sign it so that he, Mr A, could return it to Medical Staffing. Dr Liesis stated that he had signed the document without reading it as it was not uncommon to be asked to sign a number of documents when commencing work at a hospital. Dr Liesis asserted that it would not be logical for him to try and hide the fact that he was under a GMC investigation given that Mr A was clearly aware of the investigation and that they had just had a conversation about it and he had offered him employment nevertheless. 17. The Tribunal found Mr A to be a credible witness, albeit his recollection of specific detail was occasionally variable. In particular he recalled with detail dealing with Dr Liesis clinical suitability but was less clear on the detail of the completion of forms. His evidence very much centred on what would normally happen at an induction and what he would normally do, rather than what actually happened on 21 September 2015. Mr A conceded that he did not specifically recall Dr Liesis induction or the Pre and Post checks document although he confirmed that he would have taken Dr Liesis through the induction pack. 18. The Tribunal found Dr Liesis to be a straightforward and credible witness who has consistently maintained his position. He appeared to have a very good recall of the events surrounding the signing of the form and his evidence was consistent with the evidence the Tribunal has heard from other witnesses, such as Dr B who confirmed that the Pre and Post checks document would sometimes be provided on the day a doctor commenced employment. 19. On the central issue of the completion of the Pre and Post checks document, the Tribunal was satisfied that Dr Liesis recollection was more reliable than Mr A s recollection given the fact that Dr Liesis was starting a new position whereas Mr A s evidence related primarily to what would generally happen at an induction. The Tribunal was satisfied that Dr Liesis had nothing to gain by making dishonest representations on the form given that Mr A had confirmed that he was aware that 5
Dr Liesis was under investigation, but was happy to employ him on the basis of his references. Against this background the Tribunal regarded it as inherently improbable that Dr Liesis would indicate that he was not subject to investigation. 20. Having considered all the evidence, the Tribunal was not satisfied that the GMC has discharged its burden of proving on the balance of probabilities that Dr Liesis had completed the form. Paragraph 3 21. Although Dr Liesis had acknowledged that he was aware of the GMC investigation, the Tribunal was not satisfied that the GMC had proved that it was Dr Liesis who had completed the Pre and Post checks document. This paragraph of the allegation is therefore not proved. Paragraph 4 in relation to paragraphs 2(a), 2(b) and 3 22. In view of the Tribunal s findings in relation to paragraphs 2(a) and 3, it followed that paragraph 4 in respect of 2(a) and 3 fell away. In respect of paragraph 2(b), the Tribunal was satisfied that Dr Liesis had not been dishonest in signing the Pre and Post Checks document and that he had signed it without reading it. The Tribunal s Overall Determination on the Facts 23. The Tribunal has determined the facts as follows: 1. In or around September 2015 you, via your recruitment agency, submitted an application for a Locum Middle Grade post in the Emergency Department at South Tyneside NHS Foundation Trust. Admitted and found proved 2. On or around 21 September 2015 you: a. completed The NHS Pre and Post Appointment checks Direction 2002 ( the Pre and Post checks document ) indicating at Part B (1) that you were not subject to any fitness to practise investigation or proceedings by a regulatory body in the UK; Disputed and not proved b. signed the Pre and Post checks document. Admitted and found proved 3. At the time that you completed the Pre and Post checks document you knew that you were subject to an ongoing GMC investigation. Disputed and not proved 6
4. Your actions at paragraph 2 and 3 above were dishonest. Disputed and not proved 24. As the culpable Facts have not been found proved it therefore follows that Dr Liesis fitness to practise is not impaired. Annex A 19 March 2018 Application under Rule 17(6) 1. At the outset of proceedings, Ms Vanstone, Counsel on behalf of the General Medical Council (GMC) made an application for the Tribunal to use its power, under Rule 17(6) of the GMC (Fitness to Practise) Rules 2004, as amended (the Rules), to amend paragraph 3 of the allegation by including the words and/or signed so that it reads as follows: 3. At the time that you completed and/or signed the Pre and Post checks document you knew that you were subject to an ongoing GMC investigation. 2. Rule 17(6) states: Where at any time, it appears to the that (a) the allegation or the facts upon which it is based and of which the practitioner has been notified under rule 15, should be amended; and (b) the amendment can be made without injustice, it may, after hearing the parties, amend the allegation in appropriate terms. 3. Ms Vanstone submitted that there would be no injustice to Dr Liesis as he accepts that he signed the document even though he disputes the fact that he completed it. 4. Dr Liesis objected to the amendment and submitted that there would be injustice to him if the allegation was amended at this late stage. Dr Liesis stated that the GMC has had a year to prepare its case. 5. The Tribunal considered that the allegation as currently drafted requires the GMC to prove that Dr Liesis had completed the form by checking a series of tick boxes and signing it. Dr Liesis accepted that he signed the form but disputed that he completed it. 7
6. The Tribunal noted that Dr Liesis is an unrepresented doctor and the Tribunal is being asked to make a significant amendment at the outset of this hearing. If the Tribunal were to accede to the application it would considerably broaden the ambit of the GMC case. The Tribunal noted that the GMC has been on notice of Dr Liesis case since at least September 2017. Although the GMC had sought additional evidence in response, including a supplementary witness statement obtained in January 2018, it decided to proceed to the hearing with the allegation as drafted and without amendment. 7. The Tribunal determined that it was not possible to amend the allegation at such a late stage in proceedings without there being an element of injustice to Dr Liesis. It therefore determined not to accede to the application. Confirmed Date 20 March 2018 Mr Paul Moulder, Chair 8