PUBLIC RECORD Date: 29/06/2017 Medical practitioner s name: Dr Dariusz Stanislaw FAFERA GMC reference number: 7396655 Primary medical qualification: Type of case New - Non-compliance with an English language assessment Lekarz 1985 Akademia Medyczna w Warszawie Outcome on non-compliance Non-compliance found Summary of outcome Suspension for 12 months Review hearing directed Immediate order imposed Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Ms Cerys Jones Mr David Fisher Dr Calum MacLeod Tribunal Clerk: Mrs Sam Montgomery Attendance and representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Not present and not represented NA Ms Shirlie Duckworth, Counsel 1
Background and findings on non-compliance On 20 September 2016, in response to a request for information, the GMC were notified by email from the Practice Manager, Ms A of Medicare that your knowledge of English was basic and not good enough to communicate with patients effectively. The Practice Manager also commented that they had discovered that you created medical records in Polish and used a translator or an interpreter when you needed to communicate in English. On 16 November 2016 you were directed under Rule 7(3A) and Schedule 3 of the Fitness to Practise Rules 2004 to undertake an International English Language Testing System test ( the IELTS test ) and submit your results to the GMC by 14 February 2017. On 19 December 2016 you were sent a reminder by email that you were required to undertake the IELTS test and submit your results to the GMC by 14 February 2017. On 17 January 2017 you were sent a reminder by email that you were required to undertake the IELTS test and submit your results to the GMC by 16 February 2017. On 5 April 2017 you were notified that the Registrar had now referred you to the MPTS for a hearing. On 13 April 2017 you were notified that the hearing of your non-compliance would commence on 29 June 2017. You have failed to comply in full with the direction for an IELTS as directed by the GMC. There is no good reason for your failure to comply with the GMC s request. 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. 2
Determination on consideration of non-compliance 29/06/2017 Ms Duckworth: Service 1. Dr Fafera is neither present nor represented today. The Tribunal has considered your submission that notification of this hearing has been properly served upon him. 2. You provided the Tribunal with a copy of the GMC Notice of Non-compliance, dated 18 May 2017, which was sent to Dr Fafera s registered address in the UK. You also provided the Royal Mail Track and Trace document which confirms that the package was delivered and signed for on 19 May 2017 by Fafera. 3. You provided the Tribunal with a copy of the Service (MPTS) Notice of Hearing letter, dated 30 May 2017, which was sent to Dr Fafera s registered address by special delivery mail. You also provided the Royal Mail Track and Trace document which confirms that the package was delivered on 31 May 2017 and signed for by Fafera. 4. In the circumstances, the Tribunal was satisfied that the GMC and MPTS have served notice of the Allegation and the date of this hearing on Dr Fafera in accordance with Rules 15 and 40 of the GMC s (Fitness to Practise) Rules 2004, as amended, ( the Rules ), and paragraph 8 of Schedule 4 to the Medical Act 1983, as amended. Proceeding in absence 5. You invited the Tribunal to proceed in the absence of Dr Fafera pursuant to Rule 31. You drew the Tribunal s attention to particular factors it should consider as set out in R v Jones [2002] 2Cr App R9 and GMC v Adeogba [2016] EWCA Civ 162. 6. You submitted that all reasonable efforts have been made to effect service at Dr Fafera s registered address and that it is appropriate to proceed in his absence today. You noted that Dr Fafera has not made an application to adjourn proceedings and given his non-engagement it is unlikely that he would attend a future hearing. 7. The Tribunal has borne in mind that the discretion to proceed in Dr Fafera s absence should be exercised with the utmost care and caution. 8. On the basis of the documentation before it, the Tribunal was satisfied that Dr Fafera is aware of the hearing today. It notes that Dr Fafera s email address has, in the past, been effective as he has responded to the GMC. The Tribunal was of the view that, given the concerns raised regarding Dr Fafera s English Language skills, it 3
was in the public interest to hear this case without delay. The Tribunal notes that Dr Fafera has not requested an adjournment. It considered that no purpose would be served by an adjournment as there is no evidence to indicate that Dr Fafera would attend a future hearing. The Tribunal determined that Dr Fafera has voluntarily absented himself from the hearing and that it should proceed in his absence. Background 9. The Tribunal notes that Dr Fafera was initially referred to the GMC, on 9 November 2015, by Dr B, Responsible Officer for Polmedics and Dr Fafera s employer and designated body until October 2015 (after which Dr Fafera moved to Medicare). Further information was then received from Medicare on 20 September 2016 highlighting deficiencies in Dr Fafera s English Language skills. Today s proceedings 10. The Tribunal has considered the non-compliance matter referred to it in respect of Dr Fafera as follows: On 20 September 2016, in response to a request for information, the GMC were notified by email from the Practice Manager, Ms A of Medicare that your knowledge of English was basic and not good enough to communicate with patients effectively. The Practice Manager also commented that they had discovered that you created medical records in Polish and used a translator or an interpreter when you needed to communicate in English. On 16 November 2016 you were directed under Rule 7(3A) and Schedule 3 of the Fitness to Practise Rules 2004 to undertake an International English Language Testing System test ( the IELTS test ) and submit your results to the GMC by 14 February 2017. On 19 December 2016 you were sent a reminder by email that you were required to undertake the IELTS test and submit your results to the GMC by 14 February 2017. On 17 January 2017 you were sent a reminder by email that you were required to undertake the IELTS test and submit your results to the GMC by 16 February 2017. On 5 April 2017 you were notified that the Registrar had now referred you to the MPTS for a hearing. On 13 April 2017 you were notified that the hearing of your non-compliance would commence on 29 June 2017. 4
You have failed to comply in full with the direction for an IELTS as directed by the GMC. There is no good reason for your failure to comply with the GMC s request. Evidence 11. In reaching a decision on the matter of non-compliance, the Tribunal has given careful consideration to all of the documentary evidence adduced in this case, including: The email from Medicare, dated 20 September 2016, Email communication between the GMC and Dr Fafera, including Dr Fafera s response, dated 16 November 2016, The Expert Witness Report prepared by Dr C, GP, dated 21 March 2017 12. It has also taken account of the submissions made by you, on behalf of the GMC. Submissions 13. You submitted that Dr Fafera responded to an email from the GMC on 16 November 2016 which demonstrates that he is aware of the allegation against him and also that his language skills are deficient. You submitted that, on the basis of the complaint from Medicare and Dr Fafera s email response, the GMC s request for him to undergo a language assessment was reasonable. 14. You referred to the report provided by Dr C, which you submitted supports the allegation made against Dr Fafera regarding his English language skills. You also referred to the guidance set out in Good Medical Practice 2013, including the following paragraphs: Paragraph 14.1: You must have the necessary knowledge of the English language to provide a good standard of practice and care in the UK. Paragraph 19: Documents you make (including clinical records) to formally record your work must be clear, accurate and legible 15. You submitted that Dr Fafera has not engaged with the GMC and has not complied with the direction to undergo a language test and to provide evidence of 5
the test results. You submitted that there is no evidence of any good reason for his failure to comply with a reasonable direction and as such the Tribunal can make a finding of non-compliance. The Tribunal s Decision 16. The Tribunal is aware that the burden of proof rests on the GMC and that it is for the GMC to prove non-compliance. The Tribunal is also aware that the standard of proof is that applicable to civil proceedings, namely the balance of probabilities. The Tribunal has adopted the approach set out in the MPTS document Noncompliance hearings guidance for the in determining whether to make a finding of non-compliance, namely: Was the GMC s direction to provide information to undergo an assessment reasonable given the circumstances of the case and the evidence available to the decision maker(s)? Is there sufficient evidence to show that the doctor has failed to comply with the direction? Is there evidence to suggest that there was good reason for the doctor s failure to comply (i.e. was it unavoidable or otherwise excusable)? 17. The Tribunal considers that, given the level of concern raised by Medicare regarding Dr Fafera s English language skills and the content of his email which clearly demonstrates a language deficiency, the GMC s request for him to undergo an assessment of the English language using the academic version of the International English Language Testing System (IELT) was reasonable. The Tribunal was also satisfied that the request was made in accordance with the GMC s powers as laid out in the Medical Act 1983 (as amended) and the Rules. 18. The Tribunal notes that the GMC wrote to Dr Fafera on 16 November 2016 directing him to undertake the IELTS test and submit the results to the GMC by 14 February 2017. Dr Fafera responded, in an email dated 16 November 2016, raising his own concerns about practice in the UK but making no reference to the GMC s request. Furthermore, the GMC sent Dr Fafera reminders on 19 December 2016 and 17 January 2017. However, he has not provided any response. 19. The Tribunal is satisfied that Dr Fafera would have received the direction saying what was required of him. However, he has failed to comply with the GMC s reasonable direction. It has also determined that Dr Fafera has failed to provide any reason and therefore is bound to conclude that his failure to comply was not unavoidable or otherwise excusable. 6
20. In all the circumstances, the Tribunal has determined that there has been non-compliance with a GMC direction of 16 November 2016 to undergo an IELTS test and submit the results. Determination on sanction 29/06/2017 Ms Duckworth: 1. Having determined that there is non-compliance by reason of Dr Fafera s failure to undertake an assessment of knowledge of English in accordance with Schedule 3 of the Rules or having undertaken an assessment of knowledge in English, his failure to provide the information requested in accordance with Schedule 3; the tribunal has considered whether a sanction should be imposed. 2. The Tribunal has considered the further documents provided and the submissions you have made, on behalf of the GMC. 3. You referred to the relevant paragraphs of the non-compliance hearings guidance for medical practitioner tribunals (the guidance) XXX. 4. You submitted that any sanction imposed should take into account the clinical and English Language issues identified XXX, in order to protect patient safety. You also referred to the comments made by Dr C, GP in his Expert Witness Report, dated 21 March 2017, including his opinion that Dr Fafera s actions, in some regards, fell seriously below the expected standard of a reasonably competent GP. XXX 5. You submitted that a non-compliance sanction of suspension is the appropriate response to the non-compliance found and the other risks identified. 6. The Tribunal is aware that the decision as to the appropriate sanction, if any, to impose on Dr Fafera s registration is a matter for this Tribunal exercising its independent judgment. In reaching its decision, the Tribunal has taken account of the guidance. 7. Throughout its deliberations, the Tribunal considered its overarching objective, which includes: a. protecting, promoting and maintaining the health, safety and well-being of the public, b. maintaining public confidence in the profession c. promoting and maintaining proper professional standards and conduct for the members of the profession. 7
8. The Tribunal has also borne in mind that the purpose of a sanction is not to punish or discipline doctors, but they may have a punitive effect. No Action 9. The Tribunal first considered whether to conclude Dr Fafera s case and take no action. It determined that, given the serious concerns regarding Dr Fafera s English Language skills and his failure to comply with the GMC s direction of 16 November 2016, taking no action would be insufficient to protect the public. Conditions 10. The Tribunal next considered whether it would be appropriate to impose a period of conditions on Dr Fafera s registration. It has borne in mind that any conditions must be appropriate, proportionate, workable and measurable. 11. The Tribunal considers that the current concerns regard Dr Fafera s English Language skills and record keeping in Polish, which raise significant patient safety risks. It has already found that Dr Fafera has failed to comply with a direction by the GMC to undergo an IELTS test and provide the test results as directed. Further, the Tribunal has concerns that Dr Fafera has not engaged with the GMC since November 2016. 12. In the circumstances, the Tribunal is not satisfied that conditions would be appropriate, proportionate, workable or measurable nor is it satisfied that Dr Fafera would comply with any conditions imposed upon his registration. Suspension 13. Having determined that the imposition of conditions would not be appropriate the Tribunal has determined to suspend Dr Fafera s registration for a period of 12 months. The Tribunal considered that this was an appropriate period to allow Dr Fafera to engage with the process, complete the IELTS test, which would take at least three months, and provide the test results to the GMC. 14. If Dr Fafera considers that he has fully complied with the GMC s direction to undergo the IELTS test and provide the results, it is open to him to request an early review of the non-compliance sanction. However, in the absence of any such request, a Tribunal will review Dr Fafera s case at a hearing to be held before the end of the period of suspension. It will then consider whether it should take any further action in relation to his registration. Dr Fafera will be informed of the date of that hearing, which he will be expected to attend. The Tribunal reviewing Dr Fafera s case would be assisted by receiving the following: The IELTS test results; 8
Any further information Dr Fafera considers will assist the Tribunal. 15. The effect of this direction is that, unless Dr Fafera exercises his right of appeal, this decision will take effect 28 days from when written notice of this determination is deemed to have been served upon him. A note explaining Dr Fafera s right of appeal will be provided to him. Determination on immediate order 29/06/2017 1. Ms Duckworth: Having determined that Dr Fafera s registration be suspended the Tribunal has now considered, in accordance with Section 38 of the Medical Act 1983 as amended, whether to impose an immediate order on his registration. 2. You submitted, on behalf of the GMC, that an immediate order is appropriate, given the significant concerns raised and the risk to patient safety. 3. The Tribunal has determined that, given the concerns regarding Dr Fafera s English language skills which raise significant patient safety concerns and his noncompliance with a GMC direction, it is necessary for the protection of members of the public and in the public interest to suspend Dr Fafera s registration immediately. 4. The order of immediate suspension will take effect when notice is deemed to have been served upon Dr Fafera. If he lodges an appeal, the immediate order for suspension will remain in force until the appeal is determined. XXX 6. That concludes this hearing. Confirmed Date 29 June 2017 Ms Cerys Jones, Chair 9