Docstoc

FITNESS TO PRACTISE PANEL

Document Sample
FITNESS TO PRACTISE PANEL Powered By Docstoc
					                        FITNESS TO PRACTISE PANEL
                                 18-21 JULY 2011
      7th Floor, St James’s Buildings, 79 Oxford Street, Manchester, M1 6FQ


Name of Respondent Doctor:         Dr Mohamed Tareq TAHBOOB

Registered Qualifications:         MB BCh 1974 Al-Azhar University

Area of Registered Address:        Manchester

Reference Number:                  3513606

Type of Case:                      New case of impairment by reason of:
                                   misconduct

Panel Members:                     Ms V Isaac, Chairman (Lay)
                                   Dr M Johnson (Medical)
                                   Mr M Ryder (Lay)

Legal Assessor:                    Mr M Simon

Secretary to the Panel:            Ms K Millea

Representation:
GMC: Mr P Horgan, Counsel, instructed by GMC Legal

Doctor: Present and represented by Mr M Fortune, Counsel, instructed by the
Medical Protection Society


ALLEGATION

“That being registered under the Medical Act 1983, as amended:

      1.   Between 18 July 2005 and 15 November 2009 you practised as a
      Locum Consultant Anaesthetist for the Wrightington, Wigan and Leigh NHS
      Foundation Trust (“the Trust”); Admitted and Found Proved

      2.     In September and/or October 2009 whilst working at the
      Wrightington Hospital (“the Hospital”) and without the consent of the Trust,
      you took from theatre stock at the Hospital

             a.   three vials of tramadol (100 mg strength), Admitted and Found
             Proved

             b.    cefuroxime (1.5g IV); Admitted and Found Proved

      3.     You did not
                                                                                     1
              a.     write a prescription for the

                     i.     tramadol, Admitted and Found Proved

                     ii.    cefuroxime, Admitted and Found Proved

              b.     consult with another doctor regarding the use of the

                     i.     tramadol, Admitted and Found Proved

                     ii.    cefuroxime; Admitted and Found Proved

      4.      With regard to the tramadol you

              a.        self-administered one vial on the day you took it from, and whilst
              still at, the Hospital, Admitted and Found Proved

              b.    self-administered the other two vials on 15 and 16 November
              2009 respectively; Admitted and Found Proved

      5.      With regard to the cefuroxime you

              a.     self-administered one dose on the day you took it from, and
              whilst still at, the Hospital, Admitted and Found Proved

              b.    self-administered a further dose whilst at home the following
              day; Admitted and Found Proved

      6.      Your actions or omissions in paragraphs 2 and 3 2.a and b and 3.a.i
      and ii and 3.b.i and ii above were dishonest; Not Found Proved


And that by reason of the matters set out above your fitness to practise is impaired
because of your misconduct. Not Found Proved”


Determination on facts

Dr Tahboob:

Mr Fortune has admitted paragraphs 1 to 5 on your behalf and the Panel has
announced them as admitted and found proved.

The Panel has considered the outstanding paragraph of the allegation. In doing so it
has considered all of the evidence adduced in this case. It has taken account of
Mr Horgan’s submissions on behalf of the General Medical Council (GMC) and
Mr Fortune’s submissions on your behalf. It has borne in mind that the burden of
proof rests on the GMC throughout and that the standard is the civil standard of
                                                                                         2
proof, namely the balance of probabilities. Case law has made it clear that this is a
single and unvarying standard which means that a fact will be found proved if the
Panel considers it is more likely than not to have happened.

The Legal Assessor has advised the Panel that it must consider the evidence and
make its decision on each limb of paragraph 6 separately. The Panel has accepted
the advice of the Legal Assessor to amend paragraph 6 so as to separate out each
of the individual components of paragraphs 2 and 3.

The Panel has heard that you are a man of good character with no previous
convictions and that no complaints have been made against you other than the
matters under consideration in this case. The Legal Assessor has advised the Panel
to take account of your good character in two ways: firstly, it may support your
credibility as a witness; secondly, it may mean that you are less likely than otherwise
might be the case to have committed the matters alleged.

Counsel and the Legal Assessor have referred the Panel to the two-stage test as set
out in the decision of the Court of Appeal in the case of R v Ghosh [1982] QB 1053.
In determining whether your actions were dishonest, it must first of all decide
whether according to the ordinary standards of reasonable and honest people what
was done was dishonest. If it was not dishonest by those standards, that is the end
of the matter. If it was dishonest by those standards, then the Panel must consider
whether you must have realised that what you were doing was by those standards
dishonest.

You have admitted that:

1. Between 18 July 2005 and 15 November 2009 you practised as a
Locum Consultant Anaesthetist for the Wrightington, Wigan and Leigh NHS
Foundation Trust (“the Trust”);

2. In September and/or October 2009 whilst working at the Wrightington Hospital
(“the Hospital”) and without the consent of the Trust, you took from theatre stock at
the Hospital

      a. three vials of tramadol (100 mg strength),
      b. cefuroxime (1.5g IV);

3. You did not

      a. write a prescription for the

             i. tramadol,
             ii. cefuroxime,

      b. consult with another doctor regarding the use of the

             i.     tramadol,
             ii.    cefuroxime;
                                                                                        3
4. With regard to the tramadol you

       a. self-administered one vial on the day you took it from, and whilst still at, the
       Hospital,
       b. self-administered the other two vials on 15 and 16 November 2009
       respectively;

5. With regard to the cefuroxime you

       a. self-administered one dose on the day you took it from, and whilst still at,
       the Hospital,
       b. self-administered a further dose whilst at home the following day.

Paragraph 6 as amended shall read as follows - Your actions or omissions in
paragraphs 2.a and b and 3.a.i and ii and 3.b.i and ii above were dishonest - this has
not been found proved.

The Panel has found you to be a credible witness. It accepts your evidence that you
were experiencing significant pain caused by an infected ingrowing toenail, that you
were finding it difficult to deal with that level of pain and that you wanted to relieve
the pain in order to be able to stay at work and not cause avoidable disruption to the
list of patients to be operated on that day.

The Panel also accepts that it had been difficult for you to seek treatment due to your
working pattern, the fact that you were residing at the hospital at the relevant time
and that there was no occupational health service available on site. You have
described how you were worried that, if you left the hospital at that time to seek
treatment, then the operative list for the day would have had to be cancelled. You
have stated that you were particularly concerned since it was a Friday so patients
would not be certain of being carried over to the next operating day. Some patients
would inevitably have had to be rescheduled and the intervening weekend would
have made the situation worse.

The Panel is satisfied that the pain you have described is typical of that which may
be caused by an infected ingrowing toenail and that, depending on an individual’s
pain threshold, it could be difficult to tolerate. It is also satisfied that the drugs which
you took were appropriate to your condition and the overall amounts were
reasonable in an emergency situation.

The Panel has had regard to the evidence of Dr A, Consultant Anaesthetist and, at
the time of these events, Associate Director of the Anaesthetic Department.
Although generally vague in her recollection of events and details, both
contemporaneously and at these proceedings, she was able to recall being aware of
you taking the cefuroxine and self-administering it. Indeed it is clear from her oral
evidence that she assisted in one form or another with this task. She also gave
evidence that it would not have been considered necessary for you to issue or obtain
a prescription for the tramadol.

                                                                                           4
In addition to the evidence that you were open with Dr A about your actions, the
Panel notes the Investigation Notes dated 30 December 2009 also indicate that you
were open and honest about your actions.

Paragraph 2.a and b: The Panel considers your actions to have fallen short of the
standard expected of a registered medical practitioner and notes that taking drugs
from a hospital without consent might be considered dishonest. In this case,
however, the Panel has had regard to the pain you were in, the difficulty of seeking
treatment, your genuine concern that the operative list would otherwise have had to
be cancelled given that there were no spare clinicians available, the fact that you
were responding to your immediate medical needs and your openness about your
actions. The Panel has also had regard to Dr A’s evidence that she was aware of
your actions with regard to the cefuroxine and that the tramadol was available to take
- the Panel interprets this to mean within reason. In all of the specific circumstances,
the Panel does not consider your actions to have been dishonest according to the
ordinary standards of reasonable and honest people.

Paragraph 3.a: The Panel notes that Good Medical Practice (November 2006)
states, at paragraph 77, that:

       “You should not treat yourself.”

The GMC’s guidance “Good Practice in Prescribing Medicines” (September 2008)
states, at paragraph 13, that:

       “Doctors should, wherever possible, avoid treating themselves…”

The Panel considers that your actions fell short of GMC guidance. It does, however,
note that both pieces of guidance which have been referred to state that you “should”
or “should, wherever possible” avoid treating yourself, not that you “must” avoid
treating yourself.

In these circumstances, in light of its findings in relation to paragraph 2 and in light of
Dr A’s evidence that a prescription would not have been considered necessary in
respect of the tramadol, the Panel does not consider your actions to have been
dishonest according to the ordinary standards of reasonable and honest people.

Paragraph 3.b: Dr A was aware of your actions and the Panel has noted your
openness about your behaviour. In these circumstances, the Panel does not
consider your actions to have been dishonest according to the ordinary standards of
reasonable and honest people.

The Panel will now invite further evidence and submissions as to whether, on the
basis of the remaining facts found proved, your fitness to practise is impaired.


Determination on impaired fitness to practise

Dr Tahboob:
                                                                                          5
The Panel has considered under Rule 17(2)(k) of the General Medical Council
(GMC) (Fitness to Practise) Rules Order of Council 2004 whether, on the basis of
the facts found proved, your fitness to practise is impaired. It has taken account of
all of the evidence adduced in the case, the submissions of Mr Horgan on behalf of
the GMC and those of Mr Fortune on your behalf.

Mr Horgan submitted that the GMC was not advancing a positive case on
impairment but leaving it to the judgement of the Panel. He did, nonetheless, draw
the Panel’s attention to your actions in taking the tramadol and cefuroxime without
the consent of the Trust. He submitted that your acts and omissions were a clear
departure from Good Medical Practice and that you exercised poor judgement in
going against this guidance and not seeking another’s view.

Mr Fortune, who referred the Panel to the relevant case law, accepted on your behalf
that your acts and omissions fell below the standards expected of a registered
medical practitioner, however he said this was not the same as seriously falling
below so as to amount to misconduct.

In reaching its decision the Panel has exercised its own professional judgement. It
has accepted the advice of the Legal Assessor that it must decide whether the
remaining facts, namely the admitted paragraphs 1 to 5 of the allegation, amount to
misconduct. Only if it concludes that the facts do amount to misconduct, can it then
go on to consider whether your fitness to practise is currently impaired.

The Panel has borne in mind all of the case law to which it has been referred by both
Counsel and the Legal Assessor. In particular, in the case of Cheatle v GMC [2009]
EWHC 645 (Admin), Cranston J said at paragraph 19:

      “Whatever the meaning of impairment of fitness to practise, it is clear from the
      design of section 35C that a panel must engage in a two-step process. First, it
      must decide whether there has been misconduct, deficient professional
      performance or whether the other circumstances set out in the section are
      present. Then it must go on to determine whether, as a result, fitness to
      practise is impaired. Thus it may be that despite a doctor having been guilty of
      misconduct, for example, a Fitness to Practise Panel may decide that his or
      her fitness to practise is not impaired.”

In the case of Nicholas-Pillai v GMC [2009] EWHC 1048 (Admin), Mitting J stated at
paragraph 19:

      “In the ordinary case such as this, the attitude of the practitioner to the events
      which give rise to the specific allegations against him is, in principle,
      something which can be taken into account either in his favour or against him
      by the panel, both at the stage when it considers whether his fitness to
      practise is impaired, and at the stage of determining what sanction should be
      imposed upon him.”



                                                                                        6
In its determination on the facts, the Panel found that your actions in taking drugs
from the hospital without the consent of the Trust were not dishonest in the
circumstances and context in which you were working at the time. It does, however,
agree with your own acknowledgement that your actions in this respect fell short of
the standards expected of a registered medical practitioner as set out in Good
Medical Practice.

The Panel first addressed the issue of misconduct with regard to paragraphs 2, 3,
4.a and 5 of the allegation.

The Panel considers your actions to have been naïve and to demonstrate a degree
of poor judgement, but given its clear findings in the determination on facts, the
Panel accepts that your intention and motivation was genuinely focused on avoiding
serious disruption to the operating list and thereby to those patients awaiting surgery.
You were not acting recklessly or for any wilful personal gain. It also acknowledges
that your judgement on this occasion may have been adversely affected by the
degree of pain you were experiencing.

The Panel then went on to address the issue of misconduct with regard to paragraph
4.b of the allegation.

The remaining two doses of tramadol were subsequently self-administered some
weeks later, when you experienced debilitating back pain leading to emergency
admission to hospital. You took a dose of tramadol because you were unable to get
emergency medical attention during the previous night, despite repeated attempts to
contact your GP. The following day, you were unable to be moved into the
ambulance because of your pain. The paramedics suggested that you took some
strong analgesic in order to transport you to hospital. At this time you took a further
dose of tramadol.

The question for the Panel is whether any of these acts or omissions are serious
enough to come within the definition of misconduct as expounded in the case law.

The Panel acknowledges your long and unblemished career and is satisfied that you
have demonstrated good insight during the Trust’s investigation and the GMC’s
proceedings. You have been open about your actions and the Panel has found you
to be a credible witness at these proceedings. You have also expressed genuine
regret and apologised for your actions.

The Panel has taken into account its role in protecting the public interest, more
specifically the maintenance of public confidence in the profession and the declaring
and upholding of proper standards within the profession. The Panel notes that there
is no question of risk to patients.

In all of the circumstances the Panel considers that, whilst your acts or omissions did
fall below the standards expected of a registered medical practitioner, in the specific
circumstances of this case, it does not consider them to have been so serious as to
amount to misconduct. This means that it has concluded that your fitness to practice
is not impaired.
                                                                                      7
The Panel will now invite submissions on whether or not to issue a warning in this
case.


Determination on warning

Dr Tahboob:

Having found that your fitness to practise is not impaired, the Panel has considered
whether to take no further action or to issue a warning in this case. It has taken
account of all of the evidence adduced in the case, Mr Horgan’s submissions on
behalf of the General Medical Council (GMC) and Mr Fortune’s submissions on your
behalf.

Mr Horgan has submitted that a warning would be appropriate and proportionate.
Mr Fortune has submitted that a warning is not necessary. In reaching its decision,
the Panel has exercised its own professional judgement.

The Panel has applied the principle of proportionality. It has balanced your interests
with the interests of patients and the public interest. The public interest includes the
protection of patients, the maintenance of public confidence in the profession, and
declaring and upholding proper standards of conduct and behaviour.

The Panel has taken account of the advice of the Legal Assessor, who drew
attention to the fact that, in reaching its determination on impairment, the Panel did
not find your actions or omissions so serious as to amount to misconduct.

The Panel has borne in mind the GMC’s guidance on warnings, dated January 2011,
to which it has been referred by both Counsel and the Legal Assessor. Paragraph
11 of this guidance states that:

       “Warnings allow the GMC to indicate to a doctor that any given conduct,
       practice or behaviour represents a departure from the standards expected of
       members of the profession and should not be repeated. They are a formal
       response from the GMC in the interests of maintaining good professional
       standards and public confidence in doctors.”

Paragraph 13 states that:

       “Although warnings do not restrict a doctor’s practice, they should
       nonetheless be viewed as a serious response, appropriate for those concerns
       that fall just below the threshold for a finding of impaired fitness to practise.”

The Panel has also had particular regard to paragraphs 20 and 33 of the guidance,
which set out relevant factors to take into consideration when deciding whether to
issue a warning.



                                                                                         8
In its determination on facts the Panel noted that Good Medical Practice
(November 2006) states that “You should not treat yourself.” However, the more
recent guidance “Good Practice in Prescribing Medicines” (September 2008) states
less strictly that “Doctors should, wherever possible, avoid treating themselves…”.
Both pieces of guidance use the word “should” rather than “must”. The Panel does
not therefore consider there to have been a clear and specific breach of the
guidance, let alone a significant one.

In its determination on impairment the Panel found that, whilst your acts or omissions
did fall below the standards expected of a registered medical practitioner, in the
specific circumstances of this case, it did not consider them to have been so serious
as to amount to misconduct. Given this finding, the Panel is of the view that
concerns regarding your conduct cannot properly be characterised as reaching the
level of just below the threshold for a finding of impaired fitness to practise.

The Panel has previously acknowledged your long and unblemished career, your
good insight, and your expression of genuine regret and apology. It has also noted
the positive testimonials submitted on your behalf. Given these factors and the
salutary effect of these proceedings, the Panel does not consider it likely that you
would repeat such conduct.

In all of the circumstances of this case, the Panel considers that is not necessary,
proportionate or appropriate to issue a warning.

That concludes this case.




                                      Confirmed

21 July 2011                                                                 Chairman




                                                                                       9

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:11
posted:1/6/2012
language:English
pages:9