PUBLIC RECORD Dates: 14/02/2018 Medical practitioner s name: Dr Martin Uylyam MEMBE GMC reference number: 7114460 Primary medical qualification: Type of case New - Non-compliance with a performance assessment Magister (Physician) 1993 Sofia Medical University 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: Mr Richard Kember Mrs Angela Buckley Mr Chris Chandler Tribunal Clerk: Mrs Sam Montgomery Attendance and representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Not present and not represented NA Mr Ged Doran, Counsel 1
Background and findings on non-compliance On 4 July 2016, the GMC were notified of concerns about your performance by Total Assist Ltd, following information they had received from the Royal Wolverhampton Hospitals Trust ( the Trust ). The information received suggested that your fitness to practise may be impaired on the grounds of deficient professional performance. In particular, the Trust detailed a number of wide ranging concerns regarding your clinical work, conduct, communication and your regard for patient safety. Your locum contract was terminated due to patient safety concerns. Additional information was also received from several other sources raising further concerns about your performance, in particular from ID Medical, Derby Teaching Hospitals NHS Foundation Trust and Aneurin Bevan University Health Board. On 28 April 2017, you were directed under Rule 7(3) and Schedule 1 of the Fitness to Practise Rules 2004, to undertake an assessment of your performance. On 25 May 2017, you returned a portfolio in advance of the performance assessment ( PA ). On 30 May 2017, the GMC wrote to you to confirm that the matter had been transferred to the PA team for an assessment to be arranged. On 12 September 2017, the GMC emailed you to confirm the date of your PA and seeking a fully completed portfolio as the portfolio you had provided was only partially completed. On 15 September 2017, the GMC attempted to contact you by telephone in respect of the PA and left you a voicemail message. This was followed by an email on the same date reminding you to provide further information for the PA as requested, by 18 September 2017. As you provided no response, on 18 September 2017, the GMC tried to call you again with respect to the PA and a voicemail message was left. On 19 September 2017, the GMC wrote to you about the arrangements for your PA. The letter confirmed that failure to comply with the PA may result in referral to the MPTS. A further letter was sent to you by the GMC on 3 October 2017, asking you to respond regarding arrangements for your PA. The letter again reminded you that failure to comply may result in your being referred to the MPTS as a result of your non-compliance with the PA process. On 11 October 2017, the GMC sent a further email to you requesting a response. No response was received. You have failed to comply in full with the direction to undergo an assessment of your performance under Rule 7(3) and Schedule 1 of the Fitness to Practise Rules 2004. There is no good reason for your failure to comply with the GMC s request. Attendance of press / public The hearing was all heard in public. 2
Determination on consideration of non-compliance 14/02/2018 Mr Doran: Service 1. Dr Membe is neither present nor represented today. The Tribunal has considered your submission that notification of this hearing has been properly served upon Dr Membe. 2. You drew the Tribunal s attention the letter from the GMC to Dr Membe, dated 2 January 2018, confirming the hearing dates and including the Details of Non-compliance. This was successfully delivered to Dr Membe s registered address on 3 January 2018 and signed for by MEMBE. The letter was also emailed to Dr Membe s email address. 3. You drew the Tribunal s attention to the notice of this hearing, dated 4 January 2018, sent by the Service, in accordance with the Fitness to Practise Rules 2004 (the Rules). This was successfully delivered to Dr Membe s registered address on 5 January 2018 and signed for by MEMBE. The notice of hearing was also emailed to Dr Membe. 4. The Tribunal has decided that notice of this hearing has been served in accordance with Rule 40 of the General Medical Council (Fitness to Practise) Rules 2004 and paragraph 8 of Schedule 4 of the Medical Act 1983. Proceeding in absence 5. The Tribunal has already determined that service is effective and as such is satisfied that all reasonable efforts have been made to serve notice of this hearing on Dr Membe. The Tribunal then deliberated, in accordance with Rule 31 of the Rules, on whether to proceed with the case in Dr Membe s absence. The Tribunal has borne in mind that the discretion to proceed in the absence of the practitioner should be exercised with the utmost care and caution. 6. You submitted that there is a theme running through this case where Dr Membe has failed to cooperate with these proceedings. You drew the Tribunal s attention to the numerous communications from the GMC which, you submitted, Dr Membe has failed to respond to. You referred to the concerns raised regarding Dr Membe s clinical performance. You submitted that the concerns are sufficiently serious and matters should be dealt with in a timely fashion. Further it would be in Dr Membe s interests and the interests of justice to proceed with the hearing today. You noted that Dr Membe has not made an application for postponement and submitted that, given his failure to engage with these proceedings, there is no 3
assurance that an adjournment would result in Dr Membe s attendance at a future hearing. 7. The Tribunal has balanced Dr Membe s interests with the public interest in deciding whether to proceed in his absence. 8. In so doing it has considered the significant concerns and patient safety issues raised. It has borne in mind that Dr Membe has received numerous communications from the GMC regarding this non-compliance hearing and failed to respond. Further, it is satisfied that he is aware of the hearing today and has not requested a postponement. In the circumstances the Tribunal considers that Dr Membe has voluntarily absented himself from proceedings and waived his right to be present or represented. The Tribunal considers that no purpose would be served by an adjournment. It has determined that, given the performance concerns raised and the need for such matters to be dealt with expeditiously, it is in the interests of patient safety and in the public interest to proceed in Dr Membe s absence. 9. In exercising its discretion to proceed in Dr Membe s absence, the Tribunal will not draw any adverse inferences from his non-attendance and will be mindful of his interests when determining the matter before it. Today s proceedings 10. The Tribunal has considered the GMC s allegation of non-compliance referred to it in respect of Dr Membe, as follows: On 4 July 2016, the GMC were notified of concerns about your performance by Total Assist Ltd, following information they had received from the Royal Wolverhampton Hospitals Trust ( the Trust ). The information received suggested that your fitness to practise may be impaired on the grounds of deficient professional performance. In particular, the Trust detailed a number of wide ranging concerns regarding your clinical work, conduct, communication and your regard for patient safety. Your locum contract was terminated due to patient safety concerns. Additional information was also received from several other sources raising further concerns about your performance, in particular from ID Medical, Derby Teaching Hospitals NHS Foundation Trust and Aneurin Bevan University Health Board. On 28 April 2017, you were directed under Rule 7(3) and Schedule 1 of the Fitness to Practise Rules 2004, to undertake an assessment of your performance. 4
On 25 May 2017, you returned a portfolio in advance of the performance assessment ( PA ). On 30 May 2017, the GMC wrote to you to confirm that the matter had been transferred to the PA team for an assessment to be arranged. On 12 September 2017, the GMC emailed you to confirm the date of your PA and seeking a fully completed portfolio as the portfolio you had provided was only partially completed. On 15 September 2017, the GMC attempted to contact you by telephone in respect of the PA and left you a voicemail message. This was followed by an email on the same date reminding you to provide further information for the PA as requested, by 18 September 2017. As you provided no response, on 18 September 2017, the GMC tried to call you again with respect to the PA and a voicemail message was left. On 19 September 2017, the GMC wrote to you about the arrangements for your PA. The letter confirmed that failure to comply with the PA may result in referral to the MPTS. A further letter was sent to you by the GMC on 3 October 2017, asking you to respond regarding arrangements for your PA. The letter again reminded you that failure to comply may result in your being referred to the MPTS as a result of your non-compliance with the PA process. On 11 October 2017, the GMC sent a further email to you requesting a response. No response was received. You have failed to comply in full with the direction to undergo an assessment of your performance under Rule 7(3) and Schedule 1 of the Fitness to Practise Rules 2004. 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, but not limited to: The initial referral information from Total Assist, dated 4 July 2016; Information from Royal Wolverhampton NHS Trust, dated 27 July 2016, 18 August 2016 and 3 October 2016; Information from ID Medical, dated 15 November 2016 and 19 December 2016; 5
Information from West Hertfordshire Hospitals NHS Trust, dated 6 February 2016 and 15 February 2016; Information from North Midlands NHS Trust, dated 10 February 2017; Information from University Hospitals Leicester NHS Trust, dated 17 February 2017 and 1 March 2017; Information from Derby Teaching Hospitals NHS Trust, dated 28 February 2017; Information from Aneurin Bevan University Health Board, dated 17 February 2017; Various communications from the GMC to Dr Membe. Submissions 12. The Tribunal has taken account of the submissions made by you, on behalf of the GMC. 13. You took the Tribunal through the documents provided and the background of the case. You submitted that, given the issues raised highlighting a range of performance concerns, it was reasonable for the GMC to direct that Dr Membe undergo a PA. You submitted that despite numerous communications from the GMC Dr Membe has failed to comply with the request and has given no reasonable excuse for not doing so. Whilst he has continued to engage with the IOT process he has failed to engage with this process. 14. You submitted that communications from the GMC made clear the potential consequences of non-compliance and Dr Membe has been given sufficient time to engage. You submitted that, taking into account the over-arching objective of protection of members of the public, Dr Membe has failed to comply with the PA and as such there are concerns about public protection, maintenance of public confidence in the profession and the maintaining of proper standards of conduct of members of the profession. You submitted that Dr Membe has failed to comply; he has had reasonable opportunity to engage and has given no good reason for his non-compliance. Further his non-compliance has impaired the GMC s ability to proceed with its investigation. You submitted that non-compliance can be found. The Tribunal s approach 15. 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, which is the balance of probabilities. 6
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)? 16. The Tribunal took account of the complaints received from multiple employers detailing significant and wide-ranging performance concerns, which had arisen during various locum posts undertaken by Dr Membe between 2013 and 2015. It notes that there are a number of patient safety and performance concerns which have been raised including: A failure to adhere to Trust procedures, an example of which was a procedure for draining the abdomen of a patient; Time-keeping and listening skills; Prescription errors; Stopping patient s treatment against advice; Failure to listen to advice from consultants; Failure to consider the capacity of a patient, with a cardiac pace-maker, who needed an MRI scan, with potentially catastrophic consequences; Poor performance in record keeping or other administrative tasks essential to patient safety; A lack of familiarity with basic clinical/administrative procedures and guidelines; Failure to work effectively and/or collaboratively with colleagues. Pace of work; Concern that Dr Membe accessed the premises of the Royal Wolverhampton NHS Trust, after his contract had been terminated, to access the computer system. 17. In all the circumstances, the Tribunal considers that the request for Dr Membe to undergo a GMC PA was reasonable at the time the request was made. It notes 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. The Tribunal considers that the request was proportionate as the allegations were sufficiently serious to justify the GMC directing a PA. Furthermore, it considers that a PA would have been an 7
objective way of assessing Dr Membe s performance and would assist the GMC in further investigating matters. 18. The Tribunal noted the full history of the communications sent by the GMC to Dr Membe, as set out above in the GMC s allegation of non-compliance. It accepts that Dr Membe initially complied with the request to undergo a PA as he provided a partially completed portfolio to the GMC on 26 May 2017. The portfolio was approximately 50% complete. However, Dr Membe has failed to respond to numerous subsequent attempts made by the GMC to contact him, on the issue of non-compliance, and remind him of the requirement to comply with the GMC s direction to undertake a PA. The Tribunal is satisfied that Dr Membe has received communications from the GMC and is aware of the consequences of non-compliance, as set out in the GMC s letter to him, dated 28 April 2017. However, Dr Membe has not contacted the GMC, in relation to this matter, since providing his portfolio in May 2017. The Tribunal is satisfied that the doctor has failed to undergo a PA despite having at least two reminders to do so and the Tribunal has no explanation for his failure to comply. 19. The Tribunal has not been provided with any evidence to suggest that Dr Membe is unable to respond due to adverse physical or mental health. To the contrary Dr Membe has responded to the GMC in relation to the interim order process. In all the circumstances the Tribunal drew the inference that Dr Membe had deliberately chosen not to engage with the non-compliance process and therefore concludes that Dr Membe s failure to comply was not unavoidable or otherwise excusable. 20. In the circumstances the Tribunal has determined that Dr Membe has failed to comply with a reasonable direction to undergo an assessment of his performance and so finds that there has been non-compliance. Determination on sanction 14/02/2018 Mr Doran: 1. Having determined that there is non-compliance by reason of Dr Membe s failure to submit to a performance assessment (PA), in accordance with Schedule 1 of the Rules, the Tribunal has considered whether a sanction should be imposed. 2. The Tribunal has considered the submissions you have made, on behalf of the GMC, regarding the appropriate sanction, if any, that should be imposed on Dr Membe s registration. 3. You submitted that, given Dr Membe s failure to comply with the GMC s direction to carry out an assessment of his performance, the appropriate sanction is one of suspension. You referred to the significant concerns raised and submitted 8
that Dr Membe has been given a reasonable opportunity to respond to the GMC s reasonable request. 4. You referred to the Non-compliance hearings guidance for medical practitioner tribunals (the guidance). You submitted that conditions would not be appropriate in the circumstances of this case. In particular, given the significant concerns raised by a number of different employers regarding Dr Membe s clinical performance and his failure to comply with the direction to undergo a PA, despite having been given a sufficient opportunity to do so. 5. The Tribunal is aware that the decision as to the appropriate sanction, if any, to impose on Dr Membe s registration is a matter for this Tribunal exercising its independent judgment. In reaching its decision, the Tribunal has taken account of the guidance. 6. 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. 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 8. The Tribunal first considered whether to conclude Dr Membe s case and take no action. 9. The Tribunal notes that significant and wide-ranging concerns have been raised regarding Dr Membe s clinical performance and conduct. Despite numerous communications from the GMC Dr Membe has failed to comply with a reasonable direction to undergo a PA and as such the GMC have been unable to progress the investigation. These concerns, taken together, present a risk to patient safety and adversely affect the public interest. 10. In all the circumstances the Tribunal has determined that it would not be appropriate to conclude this case with no action. 9
Conditions 11. The Tribunal next considered whether it would be appropriate to impose a period of conditions on Dr Membe s registration. It has borne in mind that any conditions must be appropriate, proportionate, workable and measurable. 12. The Tribunal has already determined that the allegations regarding Dr Membe s performance, received from multiple employers, are wide-ranging and raise patient safety concerns. The Tribunal has had regard to paragraphs 33 and 34 of the guidance and has borne in mind that Dr Membe has provided no explanation or mitigation for his failure to comply with the GMC s direction to undergo a PA, despite having received at least two reminders. Nor has he responded to the GMC s communications, on the issue of non-compliance, since providing his portfolio in May 2017. 13. It considers that Dr Membe has been given multiple opportunities to comply with the direction, since April 2017. In the absence of any information to explain his non-compliance the Tribunal has determined that conditions would not be appropriate for the reasons set out in the previous paragraph. Suspension 14. Having regard to Paragraph 40 of the guidance the Tribunal determined to suspend Dr Membe s registration. It further determined that a duration of 12 months would be appropriate given the need for the GMC to organise a PA, should Dr Membe decide to re-engage with the process. 15. A Tribunal will review Dr Membe 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 Membe will be informed of the date of that hearing, which he will be expected to attend. 16. The effect of this direction is that, unless Dr Membe 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 Membe s right of appeal will be provided to him. Determination on immediate order 14/02/2018 Mr Doran: 1. Having determined that Dr Membe s registration be suspended the Tribunal went on to consider, in accordance with Section 38 of the Medical Act 1983 as amended, whether to impose an immediate order on his registration. 10
2. You submitted, on behalf of the GMC, that an immediate order is appropriate in this case given the significant and wide-ranging concerns regarding Dr Membe s clinical performance and the non-compliance found by the Tribunal. 3. The Tribunal has considered the significant and wide-ranging concerns raised by multiple employers regarding Dr Membe s professional performance and conduct. Furthermore, it had regard to its finding of non-compliance, in relation to a failure by Dr Membe to engage with his regulator and undergo a performance assessment, which has resulted in the GMC being unable to progress its investigation. In all the circumstances, the Tribunal has determined that it is necessary for the protection of patients and in the public interest to suspend his registration with immediate effect. 4. The order of immediate suspension will take effect when notice is deemed to have been served upon Dr Membe. If he lodges an appeal, the immediate order for suspension will remain in force until the appeal is determined. 5. The interim order currently imposed on Dr Membe s registration will be revoked when the immediate order takes effect. 6. That concludes this hearing. Confirmed Date 14 February 2018 Mr Richard Kember, Chair 11