That being registered under the Medical Act 1983 (as amended):

Transcription

1 PUBLIC RECORD Dates: 21/08/ /09/2017 Medical Practitioner s name: Dr Faisal KHAN GMC reference number: Primary medical qualification: Type of case New - Misconduct MB BS 2002 University of Peshawar Outcome on impairment Impaired Summary of outcome Suspension, 9 months. Review hearing directed Immediate order imposed Tribunal: Legally Qualified Chair Medical Tribunal Member: Medical Tribunal Member: Ms Kim Kneale Dr Meenakshi Verma Professor Irving Benjamin Tribunal Clerk: Mr David Salad Attendance and Representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Present and represented Mr Simon Cridland, Counsel, instructed by DAC Beachcroft Ms Sara Lewis, Counsel Ms Catherine Cundy, Counsel (1 September 2017 only) Allegation and Findings of Fact That being registered under the Medical Act 1983 (as amended): 1. On 7 and 8 May 2016, you worked as a ST6 Urology Registrar in a flexible cystoscopy clinic at Taunton and Somerset NHS Foundation Trust ( the clinic ). Admitted and found proved 1

2 2. On 8 May 2016, whilst in the clinic with Colleague A, you: a. touched her hip with your left hand; Found proved b. asked her whether she was wearing any pants, or words to that effect; Found proved c. commented that you would find out later, or words to that effect; Found proved d. rubbed your groin against her behind, causing you to become aroused; Found proved e. asked her whether she was alright, or words to that effect; Admitted and found proved f. asked whether she was comfortable with this, or words to that effect; Found not proved g. held her face; Found proved h. stroked her cheek; Found not proved i. commented how lovely she was, or words to that effect; Found not proved j. attempted to kiss her on the lips; Found not proved k. kissed her right cheek. Admitted and found proved 3. Your conduct as described at paragraph 2 above was sexually motivated. Found proved in relation to sub paragraphs 2a d Found not proved in relation to sub paragraphs e, g and k And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct. Attendance of Press / Public The hearing was all heard in public. 2

3 Determination on Facts - 30/08/2017 Dr Khan: Admissions 1. At the outset of the hearing, Mr Cridland, Counsel, made a number of admissions on your behalf and the tribunal announced paragraph 1, and paragraph 2, sub paragraphs e and k of the allegation as having been admitted and found proved. Application under Rule 34 (13) and (14) 2. On day two of the hearing Ms Lewis, Counsel, acting for the GMC, applied under Rule 34 (13) and (14) for a witness, Miss B, to give evidence at this hearing remotely, either by telephone or video link. She informed the tribunal that Miss B was suffering from ill health and was unable to attend on day three of the hearing as planned. She adduced copies of a certificate from Miss B s GP setting out the details of the illness and stating that she was unavailable to attend the hearing on that day. Ms Lewis said that Miss B was available to give evidence remotely either via telephone link on day three of the hearing, or via video link on day four of the hearing. She told the tribunal that the next time Miss B could travel to appear in person would be on Tuesday of the second week of this hearing (Monday being a bank holiday). 3. Mr Cridland told the tribunal that the default position in Medical Practitioners Tribunals was that witnesses should attend in person. He submitted that at the facts stage of this hearing, which involves a highly contentious allegation, Miss B s credibility would be an important issue. He said that factors including body language, demeanour and facial expression would be important in the tribunal s assessment of her credibility. He submitted that the vast majority of such factors would be lost if her evidence were to be received by phone. He said that, although it was preferable for Miss B to attend in person, he accepted that it may be difficult for her to do so in the circumstances. He submitted that, given this, he was prepared to agree that her appearing via a good quality video link was an acceptable solution. 4. The tribunal acknowledged the views of both parties on the application. It noted the nature of Miss B s illness, XXX. XXX, it considered that hearing her evidence via telephone link may not prove to be satisfactory. In addition, it took into account that the note provided by Miss B s GP stated that she was too ill to attend on day three at all. In these circumstances, the tribunal considered that a telephone link on day three of the hearing was not the most appropriate manner in which to receive her evidence. It was of the view that adjourning the hearing until Tuesday of the second week of the listing, losing three days of hearing time, would not be a proportionate delay in the context of the two week listing for this hearing. It 3

4 considered that, although the adjournment of a day was involved, receiving Miss B s evidence via video link was the most expeditious way in which to receive her evidence in a satisfactory manner, and it was therefore in the interests of justice to take this course. Background 5. You graduated from the University of Peshawar in Pakistan in 2002 with an MBBS degree, and began practising in the UK in After progressing your career in various hospitals, you began working at Musgrove Park Hospital, Taunton and Somerset NHS Foundation Trust ( the Trust ) in October By May 2016, at the time of the alleged events, you had performed over 800 flexible and 300 rigid cystoscopies and were working at the level of an ST6 Urology Registrar. 6. The tribunal heard that, in the context of this case, cystoscopies are a method of visualising the interior of a patient s bladder through the use of a cystoscope ( the Scope ). The Scope is made up of a thumb control joystick connected to a thin tube containing a fibreoptic cable which transmits an image to a video processor. Following the use of a local anaesthetic, the tube of the Scope is inserted into the patient s bladder through the urethra, and the direction of the viewing tip is operated via the joystick. The images appear on a screen situated next to the patient s bed. 7. You agreed to provide urgent weekend cover for a colleague, undertaking flexible cystoscopy clinics on Saturday 7 and Sunday 8 May 2016 ( the Clinics ). In the Clinics you worked with Colleague A, a Health Care Assistant ( HCA ) employed by the Trust, along with two other HCAs. The HCA s role is to escort patients to and from clinics, help prepare and maintain the cystoscopy equipment, and to support patients whilst they undergo procedures. 8. You knew Colleague A XXX and had worked together on a few occasions in the previous two years. 9. You and Colleague A agree that there was friendly conversation and banter between you on Saturday 7 May as you undertook the clinic, although there is disagreement between you about exactly when and of what form this took. You also agree that, following a discussion about Colleague A s career progression, you said that, as a learning opportunity, you would allow her to use the Scope during the Clinic on Sunday with your support, and with the consent of patients. 10. Use of the Scope is not a task that is usually undertaken by a HCA, but is carried out independently by specialist nursing staff or by doctors. The tribunal heard that you supported Colleague A to use the Scope on three occasions. It was agreed that, on each occasion, after gaining consent from the patient, you would insert the Scope into the bladder, carry out the visualising procedure and assess the 4

5 patient. You then handed the Scope to Colleague A and then helped her to direct it in the bladder by placing the thumb of your right hand over Colleague A s thumb on the joystick to help her control it. At the end of the procedure, she would then hand the Scope back to you and you would remove it from the patient. 11. You both agree that nothing untoward occurred when this happened with the first patient ( Patient One ). However, Colleague A alleges that you acted in the manner set out at paragraph 2 of the allegation in the period during, between and immediately after her use of the Scope with the second and third patients ( Patient Two and Patient Three ). 12. During the clinic on Sunday 8 May 2016, Colleague A reported some of her concerns to Miss B and asked her to come into the room where you were working together. Colleague A subsequently left the Clinic early. 13. Following the clinic of Sunday 8 May 2016, Colleague A reported concerns about your conduct to a senior colleague,, a Urology Clinical Nurse Specialist, and subsequently made a formal complaint against you to the Trust. An investigation and disciplinary hearing conducted by the Trust led to your dismissal in July You appealed the decision, and a panel convened by the Trust upheld the original decision. The Trust passed details from the disciplinary process to the GMC, leading to your case being referred to this hearing. Evidence Documentary evidence 14. The evidence in this case is based principally on descriptions of the events of 7 and 8 May 2017 by Colleague A, and by you. 15. Colleague A s evidence appears in three principal documentary sources: a) An initial statement describing the alleged events, written by Colleague A on 10 May 2016 ( A s Initial Statement ); b) Transcript of interview from [Colleague A] with the Trust s Disciplinary Panel which took place on 13 July 2016 ( A s HR Panel Interview ); c) Colleague A s witness statement provided for the GMC, dated 17 November 2016 ( A s GMC Statement ). 16. Your evidence appears in three principal documentary sources: a) your initial statement in response to Colleague A s allegations, which you ed to the Trust on 23 May 2016 ( your Initial Response ). You wrote this following receipt of a letter from the Trust, dated 18 May 2016, which 5

6 set out three principal allegations and appended a copy of A s Initial Statement; b) notes of a Human Resources Panel Hearing held by the Trust on 13 July 2016 which included details of your evidence given at the hearing ( the HR Hearing Notes ); c) your witness statement provided as part of the GMC investigation, dated 11 July 2017 ( your GMC Statement ); 17. In addition to the evidence set out above, the tribunal was provided with the following documentary evidence: signed witness statements from employees at the Trust providing evidence regarding the events of 7 and 8 May 2016 and details of the Trust s subsequent investigation and disciplinary process; your CV; a diagram/plan and photographs of the clinic room in which the alleged incidents took place, along with a photograph of a cystoscope; documents detailing the Trust s investigation into the allegation and disciplinary process, and your subsequent unsuccessful appeal against the decision to dismiss you from your post. Witnesses 18. The tribunal heard oral evidence from the following witnesses: Colleague A; Miss B, HCA at the Trust; You. 19. The statements of Trust employees Mr C, Dr D and Mr E, were uncontroversial and taken as read. The tribunal s approach 20. The tribunal deliberated on each of the outstanding paragraphs of the allegation separately. In so doing it took into account all of the evidence adduced in this case, both oral and documentary. It also took account of the submissions of Ms Lewis, Counsel, on behalf of the GMC, and the submissions of Mr Cridland, Counsel, made on your behalf. 21. The tribunal bore in mind that the burden of proof rests on the GMC and it is for the GMC to prove the allegation. The standard of proof is that applicable to civil proceedings, which is the balance of probabilities. 6

7 The tribunal s decision 22. The tribunal s decisions on the outstanding paragraphs and sub paragraphs of the allegation are set out below. Admitted elements of the allegation are included for context. 23. In its deliberations on the allegation as a whole, the tribunal found that the evidence in the case was based principally on the often conflicting descriptions of the events of 7 and 8 May 2017 given by both Colleague A and you. Although the tribunal heard oral evidence from Miss B, who was also working in the Clinics on the weekend in question and attempted to assist the tribunal to the best of her ability, it is not suggested that she was an eye witness to the key events as set out in the allegation. 24. The tribunal found Colleague A to be credible in giving her oral evidence at this hearing. Whilst it noted several inconsistencies in the course of the various documents in which she set out her evidence, the essence of her allegations against you remained the same throughout. The tribunal could find no motivation for her to fabricate them. It noted that she had reported her concerns to a colleague on the day of the Clinic and to a senior colleague on the day following the reported incident. Both colleagues reported that Colleague A was distressed when she discussed the matter with them. 25. The tribunal found your oral evidence to be structured, consistent and credible, although it did at times have the appearance of being rehearsed. You denied the majority of the allegation, explaining that some events occurred differently than as described by Colleague A, whilst denying that other events took place at all. 26. In the circumstances of receiving credible oral evidence from both you and Colleague A, the tribunal paid careful attention to the chronology of the evidence before it. It noted that the first written account of the allegations by Colleague A was contained in her Initial Statement, written on 10 May 2016, just two days after the Sunday clinic. Although it took into account all of Colleague A s evidence, it accepted A s Initial Statement to be particularly cogent, as it was her most contemporary account, made when her memory of the alleged events was fresh. 27. Representatives of the Trust discussed the allegations with you for the first time on 17 May You were subsequently ed a letter by the Trust dated 18 May 2016, which set out three principal allegations and appended a copy of A s Initial Statement. The letter specifically asked you to prepare a written statement in response to Colleague A s statement of events by Friday 27 May The tribunal noted that in your Initial Response, ed to the Trust on 23 May 2016, you did not challenge any of allegations made in A s Initial Statement. In 7

8 your oral evidence at this hearing, you explained that this was due to a level of personal stress and advice received from your supervising consultant. However, it was the tribunal s view that, given the clear, specific and serious nature of the allegations in the letter, you would have made some comment specifically on those allegations if you did not accept them to be true when you were responding to the allegations as you had been requested to by the Trust. 29. Although it took into account your subsequent statements and oral evidence, the tribunal found this initial statement to be particularly cogent, as it was your most contemporary response to the allegations. It therefore addressed each individual element of the allegation with this initial evidence from you and Colleague A as a starting point. 30. The findings of the tribunal were as follows: That being registered under the Medical Act 1983 (as amended): 1. On 7 and 8 May 2016, you worked as a ST6 Urology Registrar in a flexible cystoscopy clinic at Taunton and Somerset NHS Foundation Trust ( the clinic ). Admitted and found proved 2. On 8 May 2016, whilst in the clinic with Colleague A, you: a. touched her hip with your left hand; Found proved 31. The tribunal noted that in Colleague A s Initial Statement, she alleged that you had touched at least one of her hips on two occasions. The first occasion was during her use of the Scope with Patient Two, which she described as follows: I started to feel a little uneasy as he seemed to be a lot closer to me and I felt his hands on my hips. 32. She then described that, whilst helping her to use the Scope to examine Patient Three, you had placed your hand on top of hers (you both agreed this would have been your right hand), which was required to help her direct the Scope within the patient s bladder. She said that you then placed your other hand on her hip (by implication this would have to be your left hand) before rubbing your groin across her bottom. 33. In your Initial Response, you stated that you had agreed to teach Colleague A to use the Scope, which required you to stand very close. You set out that you: misunderstood and misjudged the situation and touched her as [you] got carried away with the course of events. You did not say where or how you had touched her or directly address the allegations that you had touched her hips during the course of the procedures involving Patient Two and Patient Three in the manner Colleague A alleged in her Initial Statement. 8

9 34. The tribunal found the absence of any denial of these allegations to be conspicuous. It was satisfied that, by inference, you were accepting that you had touched her hip. As set out above, it found your Initial Response to be particularly cogent, outweighing your later denials of touching Colleague A s hip with your hand (you instead stated that your hip had touched Colleague A s). 35. The tribunal therefore found this sub paragraph proved on the basis that you touched Colleague A s hip during the procedures relating to Patient Two and Patient Three. b. asked her whether she was wearing any pants, or words to that effect; Found proved c. commented that you would find out later, or words to that effect; Found proved 36. Colleague A s Initial Statement sets out that, on Sunday 8 May 2016, before you saw Patient Three, the following occurred: [You] made a passing comment which I thought I missed heard [sic]. I believed he said, have you got any pants on to which I replied did you just say have I got any pants on, he said no but said I will check later! I swear that he did say it and felt his reply to be a little overstepping the mark. 37. You did not address the allegations that you had specifically made these remarks in your Initial Response. You did, however, set out that a discussion ensued on underwear, as part of a conversation you had with Colleague A. 38. When questioned about the alleged comments at the Trust hearing on 13 July 2016, you agreed that you had asked Colleague A if she had been wearing any underwear, but disagreed that you had said you would check later. In your GMC statement and oral evidence to the tribunal, you gave further context, stating that the conversation, which you said happened on Saturday 7 May 2016, had begun through comments from you about the choices of underwear made by patients when they attended for procedures. 39. The tribunal gave weight to Colleague A s Initial Statement and your Initial Response as the most contemporary evidence before it. The tribunal also noted that Colleague A reported the comments to Mr E by phone on Monday 9 May 2016, and he noted that she had done so in his later witness statement, corroborating the account in her Initial Statement. You made no denial that you had made the comments upon your first opportunity to do so in your Initial Response, despite a clear allegation made by Colleague A that they had occurred. 9

10 40. The tribunal therefore determined that you made the comments as alleged by Colleague A on Sunday 8 May and found sub paragraphs 2b and c proved. d. rubbed your groin against her behind, causing you to become aroused; Found proved 41. Colleague A s Initial Statement set out that, whilst you were assisting her with her use of the Scope with Patient Three on Sunday 8 May 2016: I could feel him rubbing his groin across my bottom. In your Initial Statement you noted only that you touched her as I got carried away with the course of events. You made no specific denial of this element of the allegation at this stage, although you later denied that you acted in this manner at the Trust hearing on 13 July 2016 and maintained this throughout your subsequent documentary and oral evidence. 42. The tribunal considered that it was clear that Colleague A had acted as if she was very concerned immediately after the alleged incident between you which occurred during the procedure involving Patient Three. She had asked Miss B to come into the room to work with her due to her discomfort at the way you had acted. Miss B s initial statement to the Trust set out that Colleague A seemed on edge and distressed at this point and mentioned that [you] did touch her bottom. Colleague A subsequently went home, asking Miss B to tell you that her son was ill and she had been called away. Colleague A then acted to report the incident before 8:30am the next morning to Mr E. His statement to the GMC records that she was very upset and that she broke down in tears whilst she was relaying the details of her concerns about your behaviour to him by telephone. 43. The tribunal could see no reason why Colleague A would be as concerned and distressed as described by two third parties, and so firm about reporting the issue as soon as she could, if the encounter had occurred as you had described it. It took XXX the view that, if anything, this meant that she was less likely to want to report your behaviour, but nevertheless she did. It found that she had no plausible motivation which would lead to her fabricating such a story to use against you. 44. The tribunal noted that in her Initial Statement, Colleague A did not specifically say that you had become aroused whilst rubbing your groin against her bottom. The first time that she specifically mentioned your arousal was under questioning at the Trust s Disciplinary Panel on 13 July She was directly asked if your penis was erect, and she said it was. 45. When questioned at this hearing as to why she had not included this detail in her Initial Statement, she explained that this was because, to her, rubbing your groin against her implied that your penis was erect whilst you were doing so. The tribunal noted that, at other points in her oral evidence, Colleague A was reluctant to use specific terms for genitalia. For example, whilst answering questions from a 10

11 member of the tribunal, she referred to taking hold of a patient s genitals in one hand and the Scope in the other. She had to be asked specifically if she meant she would have been taking hold of the patient s penis. The tribunal found that this avoidance of any potentially sexualised language reinforced the evidence of her Initial Statement that she had implied that your penis was erect through her use of the term rubbing his groin across my bottom. 46. In these circumstances, the tribunal preferred Colleague A s evidence to your own, and found this sub paragraph proved. e. asked her whether she was alright, or words to that effect; Admitted and found proved f. asked whether she was comfortable with this, or words to that effect; Found not proved 47. The tribunal noted that the first time Colleague A stated that you had asked whether she was comfortable with this, in the context of the sequence of behaviour alleged in sub paragraphs 2, was in her GMC Statement of November Mr Cridland questioned Colleague A in her oral evidence as to whether, at any point, you had asked her if she was comfortable with your behaviour. She replied that you had not. In these circumstances, the tribunal considered that the evidence was not sufficient to find this sub paragraph proved. g. held her face; Found proved h. stroked her cheek; Found not proved i. commented how lovely she was, or words to that effect; Found not proved j. attempted to kiss her on the lips; Found not proved k. kissed her right cheek. Admitted and found proved 48. Colleague A described in her Initial Statement that, following the events during the procedure involving Patient Three, she brought Miss B into the room to support her due to your behaviour and you carried out the next procedure yourself, without Colleague A holding the Scope at any point. She described that, whilst a further patient was in the room behind a curtain with Miss B in attendance, you approached her on the other side of the curtain. She stated as follows: [He] caught me on the other side in a position where I could not say anything or try to escape from [sic]. I cannot remember what he said as I was in shock that he had his hand holding my chin whilst he was talking 11

12 quietly to me and then tried to kiss me on my lips. Luckily, I was quick enough to move my head so he ended up kissing me on my cheek 49. The tribunal noted that, in your Initial Response, you did not specifically deny that you held Colleague A s face. The tribunal took into account that Colleague A went on in her subsequent account to the Trust s Disciplinary Panel and in her GMC Statement to mention that you held other parts of her face. You set out in your GMC Statement that you do not recall holding her face and, that if you had touched her face, it was only very briefly as part of my misguided attempt to apologise with a kiss on the cheek You also set out that this kiss occurred with no one else in the room, rather than with Miss B and a patient on the other side of a curtain as described by Colleague A. Given Colleague A s evidence throughout that you had held a part of her face whilst kissing her, and your lack of a clear memory on the subject, the tribunal determined that you did hold her face, and found sub paragraph 2g proved. 50. The tribunal noted that the first time that the allegations that you had stroked Colleague A s cheek or commented how lovely she was appeared in her GMC Statement of November Given that these allegations did not appear in her Initial Statement at all, the tribunal found these to be inconsistencies that weakened this part of her evidence. Indeed, it noted that in her Initial Statement, when her memory of events should have been at its clearest, Colleague A could not remember what you said to her at this point. In the context of your denial that you acted in the manner alleged at sub paragraphs 2h and i, the tribunal found these elements not proved. 51. You have maintained since your Initial Response that you kissed Colleague A on the cheek by way of saying sorry after you had touched her during the course of the procedure involving Patient Three. You explained in your oral and written evidence that, in your culture, this was a common and acceptable manner of expressing an apology to a brother, sister or friend. You accepted that this was an inappropriate way in which to act in the context of a working relationship between you and Colleague A, but denied any sexual motivation. 52. Colleague A describes in the passage quoted above from her Initial Statement that you tried to kiss her on the lips. She moved her head and you ended up kissing her on the cheek instead. The tribunal accepted that Colleague A could have wrongly perceived that you had tried to kiss her on the lips, when your actual intent was to kiss her on the cheek as part of a misguided apology. In the context of your initial explanation for the kiss on the cheek, and the possibility that Colleague A had misinterpreted your intentions at this point, the tribunal considered that the GMC had not discharged the burden of proving sub paragraph 2j. It therefore found this not proved. 12

13 3. Your conduct as described at paragraph 2 above was sexually motivated. Found proved in relation to sub paragraphs 2a d Found not proved in relation to sub paragraphs e, g and k 53. In its deliberations on this paragraph, the tribunal did not take into account those sub paragraphs of paragraph 2 that had been found not proved (2 f, h, i and j). 54. It considered that its findings under paragraph 2 appeared to fall into two distinct periods. The first of these was the period up to and including the procedure involving Patient Three (covering sub paragraphs 2a d). The tribunal was of the view that your behaviour during this period was characterised by your feelings (as stated in the HR Hearing Notes) that Colleague A had a warm and friendly attitude. It noted that the HR Hearing Notes state that, because Colleague A was being friendly and chatty he felt comfortable enough to get close. However he misjudged this and he was wrong. 55. The tribunal was of the view that your previous experience of working with Colleague A and the initial friendliness and banter between you led you to a mistaken belief that she would accept you acting in the manner that you did in sub paragraphs 2a d. The tribunal considered that your comments to Colleague A about her underwear were not just inappropriate jokes, but were part of a course of sexually motivated behaviour leading to increasing levels of physical contact culminating in your actions as set out at sub paragraph 2d. 56. The tribunal noted that there was no requirement as part of the cystoscopy demonstration for you to touch Colleague A s hip with your left hand, yet you did so. It was satisfied that, in the light of your subsequent rubbing of your groin against her bottom and becoming aroused, an act which inherently conveys a sexual motivation, the whole pattern of behaviour including the touching of Colleague A s hip was sexually motivated. It therefore found paragraph 3 proved in relation to sub paragraphs 2 a-d. 57. The tribunal considered that sub paragraphs 2e, g and k, marked the point at which you recognised that you had misjudged the situation. It was of the view that there was no sexual motivation in these acts. Rather you had discerned how much you had upset Colleague A, and you acted instinctively in a misjudged attempt to apologise via a kiss on the cheek. The tribunal found that these actions were not sexually motivated and therefore found paragraph 3 not proved in relation to sub paragraphs 2e, g and k. 13

14 Determination on Impairment - 31/08/2017 Dr Khan: 1. Having announced its findings on the facts, the tribunal has now deliberated on whether your fitness to practise is impaired by reason of misconduct. In considering the question of impairment, the tribunal has taken account of all the evidence, both oral and documentary, along with Ms Lewis s submissions on behalf of the GMC and Mr Cridland s submissions on your behalf. Submissions 2. Ms Lewis reminded the tribunal that it had found that you had engaged in a course of sexually motivated behaviour, leading to physical contact with Colleague A, that you had kissed Colleague A non-consensually and that you had accepted the kiss was inappropriate. She submitted that the facts found proved constituted conduct on your behalf that falls far short of that expected of you, amounted to serious transgressions of Good Medical Practice (April 2013 edition) ( GMP ), and can readily be found to be misconduct. 3. She submitted that you had undoubtedly behaved in such a way as to bring the profession into disrepute and had breached fundamental tenets of the profession. She stated that the tribunal has not heard a response from you specifically to the findings of fact, reminding it that you denied the majority of the allegation. She questioned how there could be any remediation in this case when you had not accepted your conduct. She told the tribunal that there was a need to uphold professional standards in this case and that public confidence in the profession would be undermined if a finding of impairment were not to be made. She invited the tribunal to find that, in the light of your lack of acceptance of your misconduct, your fitness to practise is currently impaired. 4. Mr Cridland submitted that you fully accept that the findings of fact set out at sub paragraphs 2a d, taken together with paragraph 3, amount to misconduct. He stated that, although the question of impairment was a matter for the tribunal, you accepted that these facts were likely to lead to a finding of impaired fitness to practise, having had regard to the public interest. He confirmed that you do not seek to challenge such a finding, submitting that this reflected that you recognise the seriousness of the facts found by the tribunal. 5. He told the tribunal that sub paragraphs 2e, g and k, which related primarily to your kissing Colleague A, were a very different matter. He reminded the tribunal that it found that these actions reflected instinctive behaviour on your part, in a misjudged attempt at an apology. He said that you had made it clear in your evidence that you regretted the kiss and accepted that it was inappropriate. He submitted that these actions do not amount to behaviour which right-minded 14

15 practitioners or members of the public would regard as deplorable. He stated that such behaviour did not fall so far short of the standards expected of the profession as to attract disciplinary action. Tribunal s approach 6. In deciding whether your fitness to practise is impaired, the tribunal has exercised its own judgement. It has borne in mind the statutory overarching objective which is to protect the public. This includes: to protect and promote the health, safety and wellbeing of the public; to promote and maintain public confidence in the medical profession and to promote and maintain proper professional standards and conduct for members of the profession. 7. The tribunal reminded itself that its task at this stage is a two-step process. It must first find whether the facts found proved relating to your conduct amount to misconduct that is sufficiently serious to call your fitness to practise into question. If it so finds, it must then consider whether your fitness to practise is currently impaired by reason of misconduct. Misconduct 8. The tribunal first considered whether your actions amount to misconduct. Misconduct can be found in circumstances where there have been serious departures from expected standards of conduct and behaviour, which can be identified by reference to Good Medical Practice (April 2013 edition) ( GMP ). 9. The tribunal identified that following paragraphs of GMP are relevant to your case: 1 Patients need good doctors. Good doctors make the care of their patients their first concern: they are competent, keep their knowledge and skills up to date, establish and maintain good relationships with patients and colleagues, are honest and trustworthy, and act with integrity and within the law. 6 To maintain your licence to practise, you must demonstrate, through the revalidation process, that you work in line with the principles and values set out in this guidance. Serious or persistent failure to follow this guidance will put your registration at risk. 36 You must treat colleagues fairly and with respect. 37 You must be aware of how your behaviour may influence others within and outside the team. 15

16 65 You must make sure that your conduct justifies your patients trust in you and the public s trust in the profession. 10. In its deliberations on the matter of misconduct, the tribunal decided that the facts found proved fell into two distinct categories. It determined to address each of these in turn, deciding whether they constituted misconduct. Sub Paragraphs 2a d and paragraph 3 (sexually motivated behaviour) 11. The first of these categories was your sexually motivated behaviour towards Colleague A which included the comments about her underwear, the touching of her hip with your hand and the rubbing of your groin against her bottom, causing you to become aroused. 12. The tribunal considered that your first concern should have been the patients undergoing the cystoscopy procedure. However, you were instead taking advantage of your position and putting your sexually motivated actions ahead of your duties towards your patients. 13. The tribunal considered that your actions represented a serious departure from the paragraphs of GMP set out above. You failed to treat Colleague A with the fairness and respect she was due, by embarking on a sexually motivated sequence of behaviours. You made entirely unwanted and inappropriate physical contact with Colleague A in a clinical setting with patients present. The tribunal was satisfied that such behaviour would be considered deplorable by fellow practitioners and constituted serious misconduct. Sub paragraphs 2e, g and k (the kiss and related actions) 14. At the facts stage, the tribunal determined that the sequence of events in which you asked if Colleague A was alright, held her face, and kissed her on the cheek was not sexually motivated. Rather, it was an ill-considered and instinctive attempt at an apology, as you had realised how much you had upset Colleague A. 15. The tribunal considered that these actions were undoubtedly inappropriate and should not have occurred, but were not sexually motivated. It was clear from your evidence that you had recognised that non-consensual contact of this kind was inappropriate. The tribunal determined that these actions did not amount to serious misconduct. It therefore did not deliberate whether your fitness to practise is impaired in relation to 2e, g and k. Impairment 16

17 16. Having found that your sexually motivated behaviour constituted serious misconduct, the tribunal deliberated on whether your fitness to practise is currently impaired by misconduct. 17. The tribunal considered that you had breached a fundamental tenet of the profession through your lack of respect for a colleague. Your sexually motivated behaviour towards Colleague A was reprehensible. It was satisfied that a member of the public, properly informed of the details of this case, would be appalled by your behaviour. 18. It noted that, at this stage of the proceedings, it has not seen any evidence of remediation or testimonial evidence as to your character. In terms of your insight, it noted that you have accepted that your actions were likely to lead to a finding of impairment. It considered this may indicate that you have begun to appreciate the seriousness of your actions. However, it has not received any evidence that would assure it that you would not behave in such a manner again. 19. The tribunal considered that your misconduct brought the profession into disrepute. It found that there is a clear need in the circumstances of your case to make a finding of impairment in order to declare and uphold proper standards, and to maintain public confidence in the medical profession. 20. The tribunal has concluded that your fitness to practise is impaired by reason of misconduct, pursuant to Section 35C(2)(a) of the Medical Act 1983, as amended. Determination on Sanction - 01/09/2017 Dr Khan: 1. Having determined that your fitness to practise is impaired by reason of misconduct, the tribunal deliberated on what action, if any, should be taken in relation to your registration. Submissions 2. Ms Lewis submitted that the most appropriate and legitimate sanction in your case was one of erasure. She referred the tribunal to the paragraphs of the Sanctions Guidance (May 2017) ( the SG ) which she considered to be relevant. She submitted that yours could not be a case where no action is appropriate. She stated that the tribunal could not properly conclude that it could devise effective conditions that could remove or abate the concerns it has identified, adding that conditions would not be sufficient to serve the need to protect the public interest. She submitted that suspension was not an appropriate sanction in your case and that the 17

18 tribunal may consider that erasure is the only means of protecting the public, and is in the wider public interest. 3. Ms Lewis stated that your sexually motivated misconduct was a particularly serious departure from GMP and fundamentally incompatible with being a doctor. She submitted that, in the reflective statement you provided at the sanction stage, there was no fundamental acceptance of the findings of the tribunal, and reminded the tribunal that you had not exposed yourself to cross examination or testing on the statement. She submitted that, based on the tribunal s findings, you had not been honest in your evidence, resulting in Colleague A having to attend the hearing and be challenged at some length. She stated that a number of features indicating erasure may be present in your case including that you failed to make patients your first concern and that your behaviour towards Colleague A was an abuse of your position and sexually motivated. She asked the tribunal to take into account whether the way you behaved towards Colleague A would be appropriate in any circumstances regardless of the professional context in which it took place. She stated that a doctor should not require guidance on professional boundaries to be aware that such behaviour was inappropriate. 4. Mr Cridland submitted that you recognised the seriousness of the case, and you accept that the tribunal would be deciding on a sanction of either suspension or erasure. He referred the tribunal to paragraphs of the SG which he considered to be relevant. He drew the tribunal s attention to the bundle of testimonial letters and other documents provided to the tribunal at sanction stage. He described the three day course Maintaining Professional Boundaries ( the MPB Course ) which you attended in March 2017, as the best course of its type and one which facilitates appropriate remediation for these types of issues. He stated that the testimonials provided to the tribunal all describe your professional competence, and above average clinical and surgical skills. He said that your referees make it clear that you have been on a very good trajectory on your urology training programme and, but for this case, you had a strong career ahead of you as a Consultant Urologist. 5. Mr Cridland submitted that your misconduct was serious, but that it fell short of behaviour that was fundamentally incompatible with continued registration. He said that the tribunal could place your misconduct in the context of one day when you allowed your emotions to get the better of you and allowed yourself to behave in an unacceptable manner. He told the tribunal that you had demonstrated evidence of developing insight through acceptance from the outset that your behaviour was inappropriate and embarrassing. He stated that you recognised that you had upset and caused distress to Colleague A, and made an attempt to apologise. He submitted that you have been able to develop some insight into your behaviour and acknowledged both the behaviour and its unacceptability to the tribunal, and had been able to carry out steps towards rehabilitation, such as by undertaking the MPB Course. He told the tribunal that it could be assured that you would not repeat your behaviour. 18

19 The tribunal s approach 6. The decision as to the appropriate sanction, if any, is a matter for this tribunal exercising its own judgement. In reaching its decision, the tribunal took account of the SG and the statutory overarching objective, which includes protecting and promoting the health, safety and wellbeing of the public, promoting and maintaining public confidence in the medical profession, and promoting and maintaining proper professional standards and conduct for the members of the profession. The tribunal recognised that the purpose of a sanction is not to be punitive, although it may have a punitive effect. 7. Throughout its deliberations, the tribunal applied the principle of proportionality, balancing your interests with the public interest. It reminded itself that it should only impose the minimum sanction necessary to achieve the overarching objective. In deciding what sanction, if any, to impose the tribunal deliberated on each of the sanctions available, starting with the least restrictive. It also considered and balanced the mitigating and aggravating factors in this case. Taking no action 8. The tribunal first considered whether to conclude your case by taking no further action on your registration. It determined that, given the serious nature of your misconduct, and in the absence of any exceptional circumstances, it would not be appropriate to conclude this case by taking no action. Conditions 9. The tribunal next deliberated on whether it would be sufficient to impose conditions on your registration. It gave due regard to paragraphs of the SG, which set out factors to take into account in imposing conditions. It was not satisfied that it could formulate workable conditions to address the type of misconduct which forms part of the basis for impairment in your case. 10. In addition, the tribunal concluded that a period of conditional registration would not adequately reflect the seriousness with which it views your misconduct. It was of the view that such a sanction would not be sufficient to satisfy the requirement to promote and maintain public confidence in the medical profession, or to promote and maintain proper professional standards and conduct for the members of the profession. It therefore concluded that the imposition of conditions would be neither proportionate nor appropriate in your case. Suspension 19

20 11. The tribunal moved on to consider whether it would be sufficient to impose a period of suspension on your registration. The tribunal has borne in mind the SG in relation to suspension, particularly paragraphs 91, 92 and the factors that it considered to be relevant from paragraph 97, in which it states that: 91 Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and public about what is regarded as behaviour unbefitting a registered doctor. Suspension from the medical register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension, although this is not its intention. 92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession. A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration 97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate. a A serious breach of Good medical practice, but where the doctor s misconduct is not fundamentally incompatible with their continued registration, therefore complete removal from the medical register would not be in the public interest. However, the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors. b c d e No evidence that demonstrates remediation is unlikely to be successful, eg because of previous unsuccessful attempts or a doctor s unwillingness to engage. f No evidence of repetition of similar behaviour since incident. g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviour. 12. The tribunal has set out its findings on your misconduct in its determination on impairment. It will not rehearse them here. The tribunal deliberated on the 20

21 aggravating and mitigating factors that were present in your case. It found that the aggravating factor in your case was the seriousness of your misconduct on 8 May Your conduct towards Colleague A was sexually motivated, entirely inappropriate and should not have occurred. 13. However, the tribunal considered that there were a significant number of mitigating factors in your case. It took into account its findings that you had attempted to apologise to Colleague A very quickly. Although your apology with a kiss on the cheek was misjudged, it demonstrated that, from a very early stage, you acknowledged that you had acted inappropriately. In addition, it noted that you said that you voiced a wish to apologise to Colleague A at the Trust s disciplinary panel in July 2016 if you were permitted to do so. 14. The tribunal was of the view that the testimonial material provided to it was of a very high quality in terms of your character and clinical and surgical skills. It placed particular weight on the letters provided by Mr F, Consultant Urological and Robotic Surgeon, Ms G, Lead Clinician and Consultant Urological Surgeon, and Ms H, Royal College Tutor for Taunton and Consultant Urologist. 15. Mr F, the training programme director for Urology in the South West and Gloucestershire, had first-hand experience of your work between February 2012 September 2013, and then received reports of your progress and was in contact with you by telephone between September 2013 and September He stated that you were: always a fantastic and a very reliable and hardworking trainee doctor He had a very good relationship with the ward nursing staff, the operating theatre staff, his peers, senior and junior colleagues. I am not aware of any issues that he may have had with any of the junior or female colleagues during his time here. There had never been an issue I am aware of, with his integrity. In terms of his clinical ability Mr Khan was way above the level one would have expected for his level of training due to his vast previous experience 16. Ms H, who was your Clinical and Educational Supervisor from October 2013 September 2016 (including at the time of your misconduct) sets out in a letter dated 6 September 2016, that you had been an exemplary trainee. He is very conscientious and is a popular and supportive team member She advised that I have only ever witnessed Faisal behave in a fully professional manner and am not aware of any other concerns regarding this in the time I have worked with him. She notes that the Consultants in the department have certainly noticed his current absence [as of your dismissal in July 2016] as a detrimental effect on patient care due to cancellations etc. 21