PUBLIC RECORD. Record of Determinations Medical Practitioners Tribunal

Transcription

1 PUBLIC RECORD Dates: 08/01/ /01/2018 Medical Practitioner s name: Dr Alain Gabriel MITITELU GMC reference number: Primary medical qualification: Doctor - Medic 1993 Universitatea de Medicina si Farmacie ''Grigore T Popa'' Type of case New Deficient professional performance Outcome on impairment Impaired Summary of outcome Conditions, 24 months Review hearing directed Immediate order imposed Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Mr Angus Macpherson Mrs Anita Hargreaves Dr Ranjana Rani Tribunal Clerk: Ms Josephine Jenner Attendance and Representation: Medical Practitioner: GMC Representative: Not present and not represented Mr Nigel Grundy, Counsel 1

2 Allegation and Findings of Fact That being registered under the Medical Act 1983 (as amended): 1. Between 5 and 8 March 2017 and on 7 April 2017 you underwent a General Medical Council assessment of the standard of your professional performance. Found proved 2. Your professional performance was unacceptable in the following areas: a. maintaining professional performance; Found proved b. assessment; Found proved c. clinical management; Found proved d. record keeping; Found proved e. relationships with patients. Found proved 3. Your professional performance was a cause for concern in the area of working with colleagues. Found proved And that by reason of the matters set out above your fitness to practise is impaired because of your deficient professional performance. Attendance of Press / Public The hearing was all heard in public Determination on preliminary procedural matters - 08/01/2018 Mr Grundy: 1. Dr Mititelu is neither present nor represented at today s hearing. The Tribunal considered your application that the hearing should proceed in Dr Mititelu s absence. 2. In its deliberations on the application, the Tribunal applied Rule 31 of the General Medical Council s (Fitness to Practise) Rules 2004 ( the Rules ) which states: Where the practitioner is neither present nor represented at a hearing, the Committee or Tribunal may nevertheless proceed to consider and determine the allegation if they are satisfied that all reasonable efforts have been made to serve the practitioner with notice of the hearing in accordance with these Rules. 2

3 Service 3. The Tribunal has considered your submission that notification of this hearing has been properly served upon Dr Mititelu. 4. You provided the Tribunal with a bundle of documents which included the General Medical Council ( GMC ) Notice of Allegation sent by on 27 November 2017, to which Dr Mititelu acknowledged receipt via an dated 27 November The bundle also included copies of the Medical Register showing Dr Mititelu s registered address. Also included was the Notice of Hearing letter which was sent to Dr Mititelu s postal address by the Service on 6 December 2017 via the Royal Mail Track and Trace service. The Track and Trace confirmation of an attempt to deliver the item before 14:10 on 7 December 2017 and the delivery of a while you were out card was included in the service bundle. The formal Notice of Hearing was also sent via on 6 December 2017 to which there was a relay receipt. Dr Mititelu confirmed with the GMC via on 6 December 2017 that he did not intend to attend. 5. Having regard to all the information provided, the Tribunal was satisfied that all reasonable efforts have been made to serve Dr Mititelu with the Notice of Allegation and Notice of Hearing, in accordance with Rule 15 and Rule 40 and paragraph 8 of Schedule 4 to the Medical Act 1983, and, that those documents were in fact received by Dr Mititelu. Proceeding in absence 6. Having been satisfied that notice of this hearing has been properly served, the Tribunal went on to consider whether to exercise its discretion under Rule 31 to proceed with the case in Dr Mititelu s absence. 7. You submitted that it was just and fair to proceed in Dr Mititelu s absence. You submitted that it is clear from the doctor s recent correspondence with the GMC that he is aware of this hearing and has indicated that he does not intend to attend. You stated that Dr Mititelu has chosen to be absent for this hearing, although he is aware of it. You submitted that it is a matter of public interest that the hearing goes ahead, taking into account clear evidence that notice has been served on Dr Mititelu in the required period. 8. The Tribunal applied Rule 31 of the Rules and the Court of Appeals guidance in Adeogba v GMC [2016] EWCA civ 162. The Tribunal has noted that Dr Mititelu has not offered any reasons for not attending hearing. The Tribunal has borne in mind that its discretion to go ahead in Dr Mititelu s absence should be exercised with the utmost care and caution, having regard to all the circumstances of which it was aware, with fairness to the practitioner being a prime consideration, but also taking 3

4 into account fairness to the GMC and the interests of the public, as enshrined in the overarching objective in Section 1 (1A) of the Medical Act The Tribunal considered that it is in the public interest that the case should proceed in a timely manner. The Tribunal concluded that Dr Mititelu has acknowledged that the hearing is taking place today, taking into account the immediacy of his responses with the GMC as recently as 19 December 2017 and the submission of a witness statement for the Tribunal s consideration. The Tribunal concluded that Dr Mititelu has elected not to attend, and has not made any application to adjourn. The Tribunal was of the view that no useful purpose would be served by an adjournment. It therefore concluded that the balance of fairness required the hearing should proceed in Dr Mititelu s absence. Determination on Facts - 15/01/2018 Background 1. Dr Mititelu qualified from the Universitatea de Medicina si Farmacie "Grigore T Popa" in 1993 and worked there as a specialist in epidemiology and public health in Dr Mititelu came to the United Kingdom in 2007 intending to pursue a career in psychiatry. Initially he held a few short-term posts as a resident medical officer. After this he commenced working as a psychiatrist in HMP Birmingham. Thereafter he held posts in addiction psychiatry and prisoner mental health. In January 2013 he started work at the Adastra Treatment Centre, a clinic for the treatment of drug addiction. From November 2015, he worked as a Locum Consultant Psychiatrist in Swanswell, a national charity for treating drug and alcohol dependents based in the West Midlands. From 20 June 2016 Dr Mititelu commenced a role as a Locum Consultant Psychiatrist in Offender Mental Health in Norwich Prison Cluster. 2. Dr Mititelu had no formal training and had not obtained any qualifications in psychiatry. He was not on the GMC specialist register. Nevertheless, by the date of a CQC inspection into Adastra Treatment Centre in March 2016, he had been appointed to the role of locum consultant psychiatrist. Concerns were raised in March 2016 by the Care Quality Commission ( CQC ) regarding Dr Mititelu s clinical skills and knowledge, clinical practice, prescribing, patient care and record keeping. The CQC referred Dr Mititelu to GMC in July 2016 following their inspection. 3. In August 2016 an interim order was imposed upon Dr Mititelu s registration by an Interim Orders Tribunal of the MPTS which restricted him from practising in addiction medicine save under supervision. A decision was made to refer him for a GMC assessment of his professional performance. 4. Between 5 to 8 March 2017 and on 7 April 2017, Dr Mititelu underwent a GMC assessment of the standard of his professional performance. Dr Mititelu s practice 4

5 was assessed by reviewing medical records made by him in the Swanswell Treatment Centre and in the prisons in the Norwich prison cluster (MRRs). The MRR was an assessment of a selection of medical records of 37 patients seen by Dr Mititelu. The two specialist Assessors independently reviewed the sample of Dr Mititelu s medical records against the principles set out in GMP, and found Dr Mititelu s performance unacceptable in this area. In addition the performance Assessors selected 12 MRRs for case based discussions (CBDs) with Dr Mititelu in order to enable him to expand upon those medical records. Thirteen Objective Structured Clinical Examination stations (OSCEs) were chosen to reflect the scope of his practice. He was interviewed on three occasions. In addition, third party interviews took place on 6 March Dr Mititelu was invited to nominate interviewees, and selected Dr A for interview. The Peer Review team selected Miss B and Miss C who were both Mental Health Practitioners in the Norwich Prison cluster who had worked with Dr Mititelu during his time employed there. He was assessed at the level of a consultant psychiatrist. 5. Dr Mititelu s performance was found to be unacceptable in various areas, namely maintaining professional performance, assessment, clinical management, record keeping and relationships with patients. It is further alleged that Dr Mititelu s professional performance in the area of working with colleagues was a cause for concern. Witness Evidence 6. The Tribunal heard evidence from the following witnesses who were members of the Assessment Team regarding Dr Mititelu s performance: Dr D, General Practitioner with interests in addiction and rehabilitation and GMC Performance Assessor. He was the Team Leader of the assessment. Dr E, Consultant Forensic Psychiatrist and GMC Health Examiner and Medical Supervisor Dr F, General and Forensic Psychiatrist with endorsement in Substance Misuse. He had particular experience as a general and forensic psychiatrist in a prison setting. GMC Health Examiner. 7. At the outset of its deliberations, the Tribunal considered the evidence provided and determined that all of the witnesses had given compelling and conscientious evidence. It concluded that there were no material inconsistencies in the evidence given and that the witnesses had done their best to assist the Tribunal. 8. The Tribunal also considered transcripts from third party interviews with: Dr A, Addiction Psychiatrist Miss B, Mental Health Practitioner Miss C, Mental Health Practitioner 5

6 The third parties were able to speak to the performance of Dr Mititelu in the Norwich prison cluster. Documentary Evidence 9. The Tribunal considered documentary evidence. This included the following: Dr Mititelu s Portfolio, 27 September 2016 GMC Performance Assessment Report, 23 May 2017 Dr Mititelu s witness statement, 5 December 2017 Advice to the Tribunal 10. After you had completed your submissions, the Legally Qualified Chair advised the Tribunal on the law. The Tribunal accepted that advice. The Tribunal s Approach 11. The Tribunal determined each paragraph 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 your submissions on behalf of the GMC. 12. The Tribunal has borne in mind that the burden of proof rests on the GMC and that it is for the GMC to prove the allegation. The standard of proof is that which is applicable to civil proceedings, namely the balance of probabilities. 13. The Tribunal recognised that Dr Mititelu had accepted the position of locum consultant psychiatrist when he was employed at Adastra, Swanswell and in the Norwich prison cluster. The work he carried out for those employers was isolated. He was not supervised at all save pursuant to the order of the IOT. In his portfolio he expressed the view that he did not consider any of his duties to be beyond his level of expertise. The Tribunal accepted the view expressed by the performance Assessors that the role of a consultant carried with it obligations to fully assess the mental health condition of any patients who presented to him, to manage their cases so as to avoid risk and to safeguard the patients and others who come into contact with them, to treat them appropriately and to make appropriate records of the consultations which took place. Further, it accepted that it was a central feature of the consultant s role to establish a proper, professional relationship with each of his patients so that he was in a position to care for them in a proper, thorough and safe way. It was also important that in discharging this duty of care to his patients he collaborated with other professional persons. In short, the Tribunal accepted that he had a duty to abide by the principles included in GMP, as set out by the Assessment Team in each of the domains to which they referred at the level of consultant in the report. In addition, each of the Assessors asserted that the performance of Dr 6

7 Mititelu in each of the domains to which paragraph 2 of the allegation referred, fell below that of a trainee grade doctor in psychiatry. 14. The Tribunal considered the environment in which Dr Mititelu was working, namely, the Norwich prison cluster. It recognised that there appeared to be a lack of medical governance and that, in consequence, the way in which Dr Mititelu managed his caseload was left entirely to himself. Moreover, the Tribunal noted that the expectations of the mental health practitioners in the prison seemed to be that he should assist them in carrying out their own roles. Healthcare in the prison was led by the primary carers. The Tribunal was satisfied that a consultant locum psychiatrist should not have allowed himself to be employed in this way. He has a role to care for his patients which went beyond meeting the requirements of the primary carers. He should apply the expertise which is assumed of a consultant psychiatrist to care for patients in such a way as to manage their psychiatric conditions, and to address and reduce risks. It is not enough that he followed the directions of the prison care staff when carrying out his function. 15. It is in this light that the Tribunal had regard to the third party interviews. The performance assessment team interviewed 2 mental health practitioners identified by Dr Mititelu as colleagues. Each of them expressed complete satisfaction with Dr Mititelu s performance, but the Tribunal was not satisfied that their perspective was the only perspective for the making of a proper assessment. It is right that Dr Mititelu nominated Dr A as a third party for the assessment team to interview. Dr A was the supervisor appointed consequent upon the Interim Order and he was a consultant psychiatrist. However, his appointment as a supervisor did not commence until 20 December 2016 and Dr Mititelu ceased working at the prison 1 March Dr A never observed Dr Mititelu discharging his responsibilities with patients in the prison. The Tribunal was unable to attach much weight to his interview. 16. The Tribunal noted that Dr Mititelu was revalidated in June It recognised that the revalidation exercise predated his work as a locum consultant psychiatrist in Swanswell and the Norwich prison cluster. Further, it noted there was no evidence of the annual revalidation appraisal which should have taken place in about June Dr Mititelu did not attend the hearing but the Tribunal took into account his witness statement dated 5 December As Dr F recognised when giving his evidence, this was the first and only occasion when Dr Mititelu appeared to show some insight into his shortcomings. Nevertheless, there was little recognition therein of the extent of his role in the Norwich prison cluster as a locum consultant psychiatrist. 7

8 The Tribunal s Analysis of the Evidence and Findings 18. The Tribunal has considered each outstanding paragraph of the Allegation separately and has evaluated the evidence in order to make its findings on the facts. Paragraph 1: 1. Between 5 and 8 March 2017 and on 7 April 2017 you underwent a General Medical Council assessment of the standard of your professional performance. Found proved 19. The Tribunal has carefully considered the report of the GMC Assessment Team, signed by Dr D on 23 May That report sets out that the GMC assessment of the standard of Dr Mititelu s professional performance did indeed take place between 5 and 8 March 2017 and on 7 April The Tribunal was satisfied that the report is a reliable record of the evidence of Dr Mititelu s performance in the assessment. Accordingly, the Tribunal has found this paragraph proved. Paragraph 2: Paragraph 2.a. 2.a.maintaining professional performance; Found proved 20. The Tribunal took into account the GMC Performance Assessment Report in which it found Dr Mititelu s performance as unacceptable in the area of maintaining professional performance. The Tribunal noted that the Performance Assessors measured Dr Mititelu s performance in the MRRs, TPIs, the secondary interview, the case based discussions (CBDs), and the performance and knowledge test, against the following paragraphs in GMP; 7,8,9,10,11,12,13,22 a., b. and c. The Tribunal acknowledged that the main basis for judging Dr Mititelu s performance in this area was the knowledge test. Dr Mititelu scored 48% against the standard set mark of 61.68%. The Tribunal considered the witness evidence of Dr D who confirmed that Dr Mititelu had completed the performance and knowledge test in two thirds of the allocated time, and declined the opportunity to review his answers. The Tribunal accepted that this score was not compatible with working at the level of a consultant. The Tribunal recognised that the performance and knowledge test was tailored to the area of psychiatry including some general questions. 21. The assessment team identified an example in case 27 on the MRR which gave it particular concern. This case concerned a patient who was prescribed clozapine. Dr Mititelu did not know the risk and implication of a red result on blood tests. This was of concern since agranulocytosis is a major risk with clozapine. It also noted, with concern, Dr Mititelu s assertion in a second interview concerning the CQC enquiry into his prescribing practice at Adastra. He stated that the CQC could 8

9 not find fault with his prescribing of injectable opiates as he was only continuing the prescribing and not initiating it. 22. The Tribunal did note some areas in Dr Mititelu s performance that were found to be acceptable. There was acceptable performance in some of Dr Mititelu s CBDs in which he demonstrated some knowledge of guidelines in prescribing and some insight into the quality of his medical records. The Tribunal took account of the TPIs in which Dr Mititelu s performance at the Norwich Prison cluster was described in positive terms, especially by the Mental Health Practitioners. The Tribunal also noted that in Dr Mititelu s secondary interview he had referred to examples of online courses through the Royal College of Psychiatrists, reading journals and supervision, and that he had published one paper in 2009 by way of keeping his knowledge and skills up to date. The Tribunal recognised that the prison setting in which Dr Mititelu worked did not provide much opportunity for training and learning given the absence of senior colleagues in psychiatry. 23. Nevertheless, the Tribunal found that the preponderance of evidence concerning Dr Mititelu s performance in this domain demonstrated that his performance was not only below the required standard of a locum consultant psychiatrist, but also was below that of trainee in that specialty. The Tribunal has therefore found Paragraph 2.a. proved. Paragraph 2.b. b. assessment; Found proved 24. The Tribunal took into account the GMC Performance Assessment Report in which it found Dr Mititelu s performance to be unacceptable in the area of assessment of patient s condition. The Tribunal understood the Assessors to be measuring Dr Mititelu s performance in this area against paragraphs 15.a) and 18 of GMP. The Tribunal took into account evidence from the MRRs, CBDs, TPIs and OSCEs. The Tribunal noted the volume of cases in which Dr Mititelu did not adequately assess the patient s mental health when required. There were 26 cases in the MRRs when Dr Mititelu did not carry out an adequate assessment of the patient. The Tribunal noted that in six of the OSCEs, Dr Mititelu did not demonstrate adequate skills for assessing the mental health of the simulated patient. The Tribunal considered that Dr Mititelu s failure to risk assess patients when required could have put patients at risk. 25. The Tribunal bore in mind the witness evidence given by Dr F in which he asserted an assessment of the patient s condition is fundamental to establish potential risk both to the patient in question and to others. Dr F maintained that this was a basic task; doctors at trainee level learn this; it was essential for appropriate and safe treatment. 9

10 26. The Tribunal was concerned that Dr Mititelu did not perceive the need to reassess the patient s mental health, or risk manage patients, but merely continued care commenced by another practitioner. The Tribunal noted two cases in the CBDs, in which each patient was drug dependant and was, in one case, pregnant, and, in the other, had children in their care. Moreover, Dr Mititelu did not appear to recognise the safeguarding implications in these cases. The Tribunal was particularly concerned with case 12, a female patient who was pregnant and on methadone in which Dr Mititelu failed to conduct a risk assessment. The Tribunal had further concerns regarding case 26, a patient with ADHD and depression, in which Dr Mititelu did not take a history of the patient s presenting symptoms or how they had developed over time. The Tribunal was concerned that Dr Mititelu did not perform a mental state examination, did not ask questions regarding substance misuse history, and when asked to clarify the medical record in the CBD, did not mention taking a history or notes on the patient s mental state. 27. The Tribunal considered Dr Mititelu s performance in the OSCEs. The Tribunal found that Dr Mititelu asked closed questions and failed to offer the simulated patient opportunity to reply, for example OSCEs 7, 10 and 11. The assessment team commented on OSCE station 7, in which Dr Mititelu asked closed questions, failed to explore the mood and the mental health of the patient and to follow up on cues. For the majority of OSCE stations he failed to assess the mental health of the patient before starting treatment plans. Moreover, it was noted that Dr Mititelu scored zero on OSCE station 12 for basic life support. The assessment team commented that he was unable to assess the patient and carry out the procedure. Dr D commented that he had never come across such a situation before in a performance assessment. In many OSCE stations it was noted that Dr Mititelu did not demonstrate appropriate history taking skills. For example, in OSCE station 10, a mute prisoner, the Assessors commented that Dr Mititelu reached a conclusion before taking any relevant history. 28. The Tribunal acknowledged that there were a number of acceptable performances in the MRR, in one OSCE station and in the TPIs. However, taking into account the volume of performances that were categorised as unacceptable, the Tribunal concluded that Dr Mititelu s performance in this area was substandard. Accordingly, the Tribunal found this paragraph proved. Paragraph 2.c. 2.c. clinical management; Found proved 29. The Tribunal took into account the GMC Performance Assessment Report in which it found Dr Mititelu s performance as unacceptable in the area of clinical management. The Tribunal noted the assessment team measured Dr Mititelu s performance against the relevant paragraphs from GMP; 14, 15, 16.a., b., c., f. and g., 18 and 26. The Tribunal took into account evidence from the MRR, CBD s, TPIs and OSCEs. 10

11 30. The Tribunal found that Dr Mititelu failed to provide effective treatment in many OSCE stations and in many cases reviewed during MRR. In six MRRs he was unable to formulate a risk management plan. In one particular case, case 12, a female patient who was pregnant and on methadone, Dr Mititelu increased the methadone dose. This was potentially unsafe, as the patient had not taken the drug in five days and there was, in consequence, a risk of overdose due to a lack of tolerance and the fact the patient was pregnant. In a further 9 medical records he failed to provide effective treatment. In case 20, a patient with a history of heroin and alcohol dependence and on methadone, Dr Mititelu failed to explain why he had not escalated the situation and referred the patient to A&E after hearing the patient had vomited blood. In case 21, a patient who had been transferred back to HMP after being in a medium secure unit, Dr Mititelu failed to provide appropriate monitoring following doubling the dose of venlafaxine. 31. In four OSCE stations the Assessors found that no competence was demonstrated on his behalf in providing effective treatment. The Tribunal noted that in OSCE stations 8, 11 and 13, Dr Mititelu failed to offer alternative treatment or care options. The Tribunal recognised that there were some examples of acceptable performance in this domain. It noted the TPIs and some advice Dr Mititelu gave at OSCE station 11. However, the Tribunal considered that in the context of a prison, the clientele was particularly vulnerable. It noted that Dr Mititelu did not consider this context in his interactions or treatment which he provided. 32. The Tribunal placed considerable weight on Dr Mititelu s inability to formulate coherent management plans throughout the various OSCEs, MMRs and CBDs. The Tribunal determined that this was a particularly serious failing due to the prison context where Dr Mititelu was working as he would be dealing frequently with vulnerable persons. Accordingly, the Tribunal found this paragraph proved. Paragraph 2.d. d. record keeping; Found proved 33. The Tribunal took into account the GMC Performance Assessment Report in which it found Dr Mititelu s performance as unacceptable in the area of record keeping. The Tribunal noted the assessment team measured Dr Mititelu s performance against paragraphs 19, 20 and 21 from GMP. The assessment team reached their conclusions in this category by considering information taken from the MRRs and associated CBDs. 34. The Tribunal considered the MRRs and accepted the Assessors conclusions that Dr Mititelu s record keeping often lacked clarity and was not sufficiently detailed. The Tribunal noted the assessment report which stated that Dr Mititelu could not explain the purpose of a medical record or what it should contain to 11

12 ensure continuity of care. The Tribunal took into account the CBDs, notably cases 25 and 37 in which Dr Mititelu did not mention or record the patient s mental health or consider risk assessment. The Tribunal took into account Mr Grundy s submission that understanding record keeping, and taking appropriate notes for a future practitioner to consider when reassessing a patient was a minimum requirement of medical care. The Tribunal further considered Dr E s witness evidence in which he described Dr Mititelu s record keeping as disorganised with no way of assessing in future what drugs were used by the patient and how often, making it difficult to assess or prescribe. Accordingly, the Tribunal found this paragraph proved. Paragraph 2.e. e. relationships with patients. Found proved 35. The Tribunal took into account the GMC Performance Assessment Report in which it found Dr Mititelu s performance as unacceptable in the area of relationships with patients. The Tribunal noted the assessment team measured Dr Mititelu s performance against paragraphs 16.e., 17, 31, 32, 33, 34, 46, 47, 48, 49.a., b., c. and d., 50, 51 a. and b., 52, 54, 55 a., b. and c., 57, 58, 59, 60, 61, 62, 64 and 68 from GMP. The assessment team reached their conclusions in this category by considering information taken from the OSCEs, MRRs and associated CBDs. The TPIs were also considered. 36. The Tribunal considered Dr Mititelu s performance at OSCE stations 5, 11 and 13 and noted that his attitude towards the simulated patients was aggressive, confrontational and appeared to show little empathy towards the patient. Dr D explained to the Tribunal that it was apparent to the Assessors that Dr Mititelu was in an angry and unhelpful mood when carrying out the examinations. It appeared to them that he had contempt for the whole performance assessment. He described it as a pilgrimage of stupidity. The Tribunal noted the contrast demonstrated between the OSCEs and the TPIs where it was noted that Dr Mititelu appeared to have got on well with staff and patients. The Tribunal could not ignore Dr Mititelu s performance in the OSCEs and reached the conclusion that it should not be confident that he would maintain professional relationships with patients who were in his care. 37. The Tribunal weighed both the evidence given in the OSCEs and TPIs and noted that a good rapport with staff and patients is not enough. Dr Mititelu s poor record keeping demonstrated to the Tribunal that even if he was polite in the prison setting, he was not delivering good clinical care by way of discussing management plans, or reassessing patient care. Accordingly, the Tribunal found this paragraph proved. 12

13 Paragraph The Tribunal took into account the GMC Performance Assessment Report in which it found Dr Mititelu s performance a cause for concern in the area of working with colleagues. The Tribunal noted the assessment team measured Dr Mititelu s performance against paragraphs 16.d., 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44.a. and b., 45 and 59 from GMP. The assessment team reached their conclusions in this category by considering information taken from the TPIs and OSCEs. 39. The Tribunal considered the TPIs in which it was explained that Dr Mititelu got along well with staff at the Norwich prison cluster and that he worked with them collaboratively. However, it compared this with Dr Mititelu s performance in the OSCEs during which Dr Mititelu demonstrated confrontational behaviour. It was noted in OSCEs 2, 6 and 10 that he did not collaborate effectively with colleagues. For example, in OSCE 10, a mute prisoner, Dr Mititelu failed to introduce himself to his colleague and in OSCE 6, a disagreement with a healthcare member, he demonstrated a confrontational approach to his colleague through both verbal and body language. As the assessment team was measuring Dr Mititelu s performance as a consultant psychiatrist, OSCE station 2 was intended to test Dr Mititelu s skills in teaching a junior colleague. However, the assessment team noted that Dr Mititelu was dismissive of the junior colleague by interrupting her and demonstrated a didactic approach which was unacceptable. 40. The Tribunal took into account the mixed reviews from the TPIs and OSCEs examples. The Tribunal found that reviews from the TPIs were positive, and showed that Dr Mititelu met the criteria for working well with his colleagues, notably with the mental health practitioners within the Norwich prison cluster. Nevertheless, the Tribunal concluded that there were sufficient examples of unacceptable practices which were of a serious nature to give a cause for concern; these included instances when Dr Mititelu failed to discuss safeguarding issues. Accordingly, the Tribunal found this paragraph proved. The Tribunal s Overall Determination on the Facts 41. The Tribunal has determined the facts as follows: That being registered under the Medical Act 1983 (as amended): 1. Between 5 and 8 March 2017 and on 7 April 2017 you underwent a General Medical Council assessment of the standard of your professional performance. Found proved 2. Your professional performance was unacceptable in the following areas: a. maintaining professional performance; Found proved 13

14 b. assessment; Found proved c. clinical management; Found proved d. record keeping; Found proved e. relationships with patients. Found proved 3. Your professional performance was a cause for concern in the area of working with colleagues. Found proved Determination on Impairment - 16/01/2018 Mr Grundy: 1. The Tribunal now has to decide in accordance with Rule 17(2)(k) of the Rules whether, on the basis of the facts which it has found proved, Dr Mititelu s fitness to practise is impaired by reason of deficient professional performance. In considering the question of impairment, the Tribunal has taken account of all the evidence, both oral and documentary, along with your submissions on behalf of the GMC. Submissions 2. You invited the Tribunal to take account of the opinions expressed in the Performance Assessment reports. You submitted that the standard of Dr Mititelu s performance was deficient based on the findings of the Tribunal, particularly in relation to the areas of assessment, record keeping and working with others. You submitted the Tribunal must have regard to the statutory over-arching objective: 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 for members of the profession. 3. You drew the Tribunal s attention to the case of Calhaem v GMC [2007] EWHC 2606 (Admin), which states: Deficient professional performance within the meaning of [section] 35C(2)(b) [of the Medical Act 1983] is conceptually separate both from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor's work. 14

15 You submitted that the aforementioned case gave the example of where a medical practitioner s performance was found to be unacceptably low. In comparing the case of Calhaem with Dr Mititelu, you drew upon the fact that, whereas Calhaem was a single episode of deficient performance, the assessment of Dr Mititelu s performance spanned an extended period and contained a significant volume of examples. 4. You submitted that the Tribunal was entitled to take into account the formal opinion reached by the Assessment Team after their consideration of 37 records in the MRR. You submitted the Tribunal should take into account their findings; that Dr Mititelu s performance was deficient, with basic failings in fundamental tasks. You submitted that the evidence suggested that there was a clear risk to patient safety. You submitted that, should Dr Mititelu undertake further clinical work, it should be on a limited basis. 5. You submitted that the Tribunal should consider whether Dr Mititelu s fitness to practise is impaired at the present time. You submitted that Dr Mititelu has demonstrated little insight into his shortcomings and gave the example of his aggressive and obstructive approach to the GMC Performance Assessment. You submitted that although Dr Mititelu expressed some insight in his statement, there is no evidence that he has taken any remedial steps. You submitted that the Tribunal could be satisfied that Dr Mititelu s fitness to practise is impaired by reason of deficient professional performance. Tribunal s approach 6. In deciding whether Dr Mititelu s fitness to practise is impaired, the Tribunal has exercised its own judgement. It has borne in mind the statutory overarching objective. 7. The Legally Qualified Chair advised the Tribunal that its task at this stage is a two-step process. It must first find whether the facts found proved amount to deficient professional performance that is sufficiently serious to call your fitness to practise into question. If it so finds, it must then consider whether Dr Mititelu s fitness to practise is currently impaired by deficient professional performance. 8. The Legally Qualified Chair advised that the Tribunal must determine whether Dr Mititelu s fitness to practise is impaired today, taking into account Dr Mititelu s performance at the time of the events and any relevant factors since then such as whether the matters are remediable, have been remedied and any likelihood of repetition. 9. The Tribunal accepted the advice of the Legally Qualified Chair. 15

16 The Tribunal s Determination on Impairment Deficient Professional Performance 10. The Tribunal made the finding at the facts stage that the Performance Assessment was correct. It was satisfied that the areas in which Dr Mititelu s performance were found to be unacceptable were important areas of practice and it noted that the Assessors were all in agreement. 11. The Tribunal recognised that a major part of the Performance Assessment concerned Dr Mititelu s performance at Swanswell and at the Norwich prison cluster. There had been no criticism of Dr Mititelu from either of those organisations. Dr Mititelu, in his portfolio, made the point that he succeeded to implement a new vision about mental health in prison settings. As a result, he had transferred about 53 cases from prison to mental hospital pursuant to section of Mental Health Act It appeared from the TPI with Dr A that this was ultimately approved by the head of healthcare in prison. 12. Nevertheless, the Tribunal recognised that it should approach this case on the basis of the performance evidence presented to it by the GMC. At the facts stage of this determination, it was critical of Dr Mititelu for failing to discharge the obligations of a consultant. The issue of whether the facts found proved amount to deficient professional performance concern Dr Mititelu s failings in that regard. 13. The Performance Assessment was a general assessment into Dr Mititelu s performance as a locum consultant psychiatrist. It took account of 37 MRRs, 12 CBDs, 13 OSCEs and a test of performance and knowledge. The results of the assessment showed consistent failures and, in consequence, unacceptable performances in five domains of GMP. In one further domain, there was cause for concern. The context of Dr Mititelu s performance in the Norwich prison cluster was primary led healthcare. He was working in isolation from his peers. He was working with a vulnerable client group which may have regarded itself as disenfranchised. The specialist assessors and the Tribunal identified that in consequence of Dr Mititelu s performance, there could be considerable risks to the patients in his care and to others. 14. The Tribunal accepted that the evidence considered by the Assessors represented a fair sample of Dr Mititelu s work. It reached the view that the shortcomings in Dr Mititelu s performance identified by the Performance Assessors were serious. In these circumstances, the Tribunal accepted that the facts found proved amounted to deficient professional performance. 16

17 Impairment of Fitness to Practise 15. The Tribunal went on to consider whether, by reason of Dr Mititelu s deficient professional performance, his fitness to practise is impaired. It had regard to the 5 th report prepared by Dame Janet Smith to the Shipman enquiry. She identified several circumstances which ought to be considered before a finding as to impairment is made as follows. First, did Dr Mititelu s deficient professional performance put patients at unnecessary risk of harm or could it do so in the future? It follows from its findings of fact that the client group which Dr Mititelu attended could have been placed at unnecessary risk of harm. Appropriate mental health assessments were not carried out when they should have been, competent risk assessments were not undertaken and in consequence, appropriate management plans were not formulated. Record keeping lacked clarity, and would not ensure continuity of care. Dr Mititelu did not demonstrate professional relationships with the simulated patients in all the OSCEs. Further, there were examples of his treating colleagues inappropriately in the OSCEs. If these deficiencies are not addressed, the Tribunal is satisfied that Dr Mititelu could put patients at unnecessary risk of harm. 16. Secondly, by his deficient professional performance, has Dr Mititelu brought the profession into disrepute and/or is he liable to do so in the future? The Tribunal did not consider that Dr Mititelu s unacceptable performance in the assessment in itself brought the reputation of the profession into disrepute, although it did have some concerns that Dr Mititelu accepted the position of consultant and/or maintained that position after such time as he was reported by the CQC in respect of his consultant role at Adastra. Moreover, although Dr Mititelu complied with the GMC s direction for him to undertake a GMC professional performance assessment, the Tribunal was disappointed by his attitude to certain aspects of it. 17. Thirdly, by his deficient professional performance, has Dr Mititelu breached a fundamental tenet of the profession and/or is he liable to do so in the future? The Tribunal considered that he failed to recognise and work within the limits of his competence, as required in the first domain of GMP (2013). He stated in his portfolio that after almost three years as locum consultant in Norwich prison cluster, I cannot describe any duties which I felt was beyond my level of expertise. It therefore appears that he did not recognise that he was working outside the limits of his competence, both before and after March 2016 when he was reported by the CQC to the GMC. The Tribunal considered this lack of recognition to be surprising as Dr Mititelu had had no formal training and had not achieved qualifications in psychiatry and was not on the GMC s specialist register. After he was reported to the GMC by the CQC, the Tribunal considered that he ought to have recognised that he was practising outside the limits of his competence. 18. The Tribunal went on to consider whether Dr Mititelu s deficiencies were remediable, whether they have been remedied and whether they are highly unlikely to be repeated. The Tribunal considered that Dr Mititelu s deficiencies were 17

18 remediable. He is a qualified doctor of many years standing and indeed, he has been practising as a psychiatrist in offender and drug addiction units since He has an interest in psychiatry. He has admitted in his witness statement dated 5 December 2017, that he needs to develop further my clinical knowledge and skills in order to obtain better results in future examinations which I intend to sustain, e.g. MRCPsychiatry. At this juncture, the Tribunal sees no reason to conclude that Dr Mititelu is not able to address the deficiencies in his performance. 19. The Tribunal has reached the conclusion that Dr Mititelu has not addressed those deficiencies. There is no evidence that he has attended any courses or received any training although he does say in his portfolio that he is currently studying in order to apply for CESR (Certificate of Eligibility for Specialist Registration). Moreover, it was only in his witness statement prepared for this hearing that he acknowledged disappointment by all this situation created by myself. 20. The Tribunal has therefore determined that Dr Mititelu s fitness to practise is impaired by reason of deficient professional performance. Determination on Sanction- 17/01/2018 Mr Grundy: 1. Having determined that Dr Mititelu s fitness to practise was impaired by reason of his deficient professional performance, the Tribunal considered what action, if any, to take with regard to his registration. 2. In so doing, the Tribunal gave careful consideration to all the evidence adduced, together with your submissions, on behalf of the GMC. GMC Submissions 3. You submitted, on behalf of the GMC, that, given the finding of impairment, it would be inappropriate to impose no sanction in this case. You drew the Tribunal s attention to various paragraphs of the Sanctions Guidance (May 2017) (the SG) which you considered to be relevant to Dr Mititelu s case. You submitted that Dr Mititelu s case was not exceptional and that taking no action would not be appropriate. You told the Tribunal that Dr Mititelu had insufficient insight to support the conclusion that conditions were likely to be workable. You submitted that there was no evidence that Dr Mititelu had remedied his shortcomings, or that he would do so or that he would respond to supervision. 4. You drew the Tribunal s attention to its previous determination on impairment, and highlighted the aggravating factors of Dr Mititelu s failure to 18

19 recognise and work within the limits of his competency. You submitted that, despite the CQC investigation into Dr Mititelu s performance at Adastra in March 2016, Dr Mititelu still continued his practice without questioning his expertise. You submitted that, given the serious failings in Dr Mititelu s performance, including the findings of deficient knowledge and skills, compounded by his failure to take remedial steps, the appropriate sanction was one of suspension. Tribunal s approach 5. The decision as to the appropriate sanction to impose, if any, in this case is a matter for this Tribunal exercising its own judgement. 6. The Tribunal considered that the following constituted aggravating factors in the case: The deficient performance of Dr Mititelu related to at least five GMP domains in the Performance Assessment His failure to recognise the limits of his competence The cohort of patients with which he worked was particularly vulnerable His lack of insight until the eleventh hour His attitude towards the Performance Assessment and his behaviour during it, particularly in the OSCEs and the interviews and towards the Performance Assessment team His failure to take any significant remedial steps in respect of the deficiencies in his practice 7. The Tribunal considered that the following constituted mitigating factors in the case: Dr Mititelu s work in the Norwich prison cluster met with the approval of the Mental Health Practitioners. This was a challenging environment and there appeared to be little governance or support for him and he was isolated from his peers He complied with the GMC s direction and undertook the Performance Assessment He implemented a new vision about mental health in prison settings as set out in the determination on impairment Belatedly he has developed some insight. He acknowledged his poor performance in the clinical knowledge test and the OSCEs. He has admitted the need to develop further his clinical knowledge and skills. In his witness statement, he states At this moment I sincerely hope that MPTS hearing will bring necessary clarifications and I will be able to return to my profession. I am sincerely disappointed by all this situation created by myself. In his portfolio, he states I am currently studying in order to apply for CESR and also I fully recognise the importance of MRCPsychiatry. 19

20 He complied with the IOT requirements and found a consultant psychiatrist to supervise his work in drug addiction. 8. In reaching its decision, the Tribunal took into account the SG. It bore in mind that the purpose of the sanctions is not to be punitive, but to protect patients and the wider public interest, although they may have a punitive effect. 9. Throughout its deliberations, the Tribunal applied the principle of proportionality, balancing Dr Mititelu s interests with the public interest. It took account of the over-arching objective, which includes the protection of the public, the maintenance of public confidence in the profession, and the promoting and maintaining of proper professional standards and conduct for members of the profession. The Legally Qualified Chair advised the Tribunal to approach the sanctions in a structured way, considering the least restrictive sanctions first. No Action 10. In coming to its decision as to the appropriate sanction, if any, to impose in Dr Mititelu s case, the Tribunal first considered whether to conclude the case by taking no action. 11. The Tribunal determined that the serious failings identified in Dr Mititelu s practice pose risks to patients, there were no exceptional circumstances and that it would not be sufficient, proportionate or in the public interest to conclude this case by taking no action. Conditions 12. The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mititelu s registration. It was mindful of the extent and breadth of the deficiencies in Dr Mititelu s professional performance, identified by the Performance Assessors. It took account of relevant paragraphs of the SG which set out guidance on the imposition of conditions and bore in mind that any conditions imposed would need to be appropriate, proportionate, workable and measurable. 13. The Tribunal considered that there was some tension between the recommendations of the Performance Assessment team and the GMC position that a suspension order was the appropriate sanction. It has set out in the impairment determination that the performance deficiencies identified should be remediable by Dr Mititelu. It interpreted the Performance Assessment recommendations as indicating that Dr Mititelu could resume practice safely, provided he is in a closely supervised post as a trainee or a Foundation Year doctor. The particular arguments that the GMC deployed against his return to work under supervision related to lack of proper insight, his not having already started a remedial process and there being 20

21 no indication that he would respond to supervision. The Tribunal will deal with these three arguments in turn. 14. As to lack of proper insight, the Tribunal accepted that this had been the position until the eleventh hour. However, it bore in mind Dr Mititelu s circumstances when reflecting on this point. Dr Mititelu had worked as a locum consultant psychiatrist in the Norwich prison cluster and Swanswell without criticism for some time. Although the CQC made a complaint to the GMC about his performance at Adastra, that complaint was not the subject of the GMC case against him. The IOT had permitted him to continue in his work in the Norwich prison cluster and Swanswell albeit under supervision and he abided by that condition. As he did not recognise that he was working beyond the limits of his competence, he did not comprehend why the GMC directed him to undergo a Performance Assessment; yet he accepted it. An arrogant attitude is never a proper posture to adopt in the context of a GMC enquiry, but Dr Mititelu s dismay as to how this situation evolved is perhaps more comprehensible in the light of this narrative. 15. The Tribunal noted that Dr Mititelu has not undertaken any remedial work beyond studying in order to apply for CESR as stated in his portfolio, dated September There is no subsequent evidence concerning remedial work. The Tribunal recognised that the IOT conditions are likely to have impacted on Dr Mititelu s ability to find work after 1 March 2017 so as to address his shortcomings. 16. The Tribunal is not prepared to accept that Dr Mititelu would not respond to supervision. There is no suggestion to that effect in the Performance Assessment. Moreover, Dr A explained that Dr Mititelu had sought out supervision pursuant to the IOT conditions. Further, it is apparent that, albeit for a limited period, Dr Mititelu did work under the supervision of Dr A until his job contract was terminated at the Norwich prison cluster. It recognised it may initially be difficult for him to obtain a core trainee position or an FY2 (or below) position; however, it considered that such pathways should be open to him, particularly the core trainee pathway in psychiatry, given his interest and experience in that specialty. The Tribunal has heard in evidence from the three Performance Assessors that the UK is short of doctors in that specialty. The Tribunal recognised that the public interest can be served by enabling an experienced doctor to return to practise, provided this is in an environment where training and supervision is in place and patients are protected. 17. Although the Tribunal acknowledged that this was a case of deficient professional performance of some considerable breadth, it was mindful that it should impose the least sanction consistent with its obligations to meet the overarching objective. It was satisfied that a structured training programme which included appropriate supervision, as recommended by the Performance Assessors, will address the deficiencies identified and should achieve Dr Mititelu s return to safe practice. The Tribunal balanced the interests of the public with those of Dr Mititelu 21