GMC v Dr Rahim

Fitness to Practise Panel Hearing 23-27 February 2009

GMC v Dr Rahim

Representation:

GMC:Miss J Sullivan, Counsel, instructed by the GMC Legal Team

Doctor: Present and represented BY Mr I Stern, QC, instructed by RadcliffesLeBrasseur

The allegations faced by the doctor stated:

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

1. At the relevant times you were a General Practitioner practising at C Health Centre, Edgware Road, London; Admitted and found proved
2. On 6 and 9-11 September 2007 you underwent an assessment of the standard of your professional performance; Admitted and found proved
3. In the Peer Review your performance was unacceptable in the following categories of ‘Good Medical Practice’ namely,
   1. Assessment, Not found proved
   2. Investigations, Not found proved
   3. Treatment, Not found proved
   4. Limits, Not found proved
   5. Records, Not found proved
   6. Education, Not found proved
   7. Audit, Not found proved
   8. Communication, Not found proved
   9. Respect, Not found proved
   10. Relationships; Not found proved
4. In the Tests of Competence the Assessment Team found that,
   1. Your overall performance was unacceptable, Found proved
   2. Your performance fell below the expected standard in all three components of the assessment; Found proved
5. The Performance Assessment Team concluded that the standard of your professional performance had been deficient;’ Admitted and found proved
6. In respect of the findings in paragraphs 3 and 4 above the standard of your professional performance has been deficient;’“And that by reason of the matters set out above your fitness to practise is impaired because of your deficient professional performance.”
   

   Not impaired

Determination on facts

“Dr Rahim:

The Panel has given careful consideration to all the evidence adduced in this case and has taken account of Miss Sullivan’s submissions made on behalf of the General Medical Council (GMC) and those of Mr Stern QC made on your behalf.

It has borne in mind that the burden of proof rests on the GMC and that the standard of proof applicable in these proceedings is that set out in Rule 34(12) of the Fitness to Practise Rules, the civil standard of proof.

You have admitted and the Panel has found proved Paragraphs 1, 2, and 5.

The Panel has accepted the submission made by Mr Stern QC under Rule 17(2)(g) of the Rules, and not opposed by Miss Sullivan, that insufficient evidence was adduced to find paragraphs 3 d, e, g and i, proved and has therefore found these paragraphs not proved.

In considering paragraph 3 of the allegation, the Panel has borne in mind that the performance assessment report defined unacceptable performance for individual criteria as being “performance which clearly departs from the performance described in ‘Good Medical Practice’. For the overall judgement, unacceptable performance was defined as indicating “that there is evidence of repeated or persistent failure to comply with the professional standards appropriate to the work being done by the doctor”.
Having considered each of the remaining Paragraphs separately, the Panel has made the following findings.

The stem of paragraph 3 was earlier amended so that the words “found by the Assessment Team to be” were deleted. The stem was further amended to read “In the Peer Review your performance was unacceptable in the following categories of ‘Good Medical Practice’ namely”.

The Panel has found Paragraph 3a not proved. In reaching this finding, the Panel noted that only two examples of alleged poor clinical practice have been alleged by Miss Sullivan. She submitted that your alleged poor performance in the Tests of Competence was supportive of a judgement of unacceptable in this category.

The clinical examples cited related to a lack of records regarding the examination of a man’s chest and abdomen and also a confusing entry in the records concerning whether a patient required a cervical smear. In considering the lack of records seen by Dr H, the Panel accepts, and Dr H admitted, that he was mistaken in his belief that he had the complete medical records. The Panel has therefore disregarded any criticisms made in the assessment report which relate to deficiencies in medical records.

The Panel notes your statement in the report that you had carried out a full chest and abdominal examination. The report acknowledged that you did in fact know what should have been done. The Panel does not consider that these incidents were sufficiently serious or persistent to warrant a judgement of unacceptable in this category.

Further, the Panel does not consider it appropriate for the results of the Tests of Competence to be taken into consideration when assessing the categories making up the Peer Review which the Panel has considered on their own merits. It has therefore not taken these into account with regard to any parts of paragraph 3.

The Panel has found Paragraph 3b not proved. It was submitted by Miss Sullivan that you relied on your memory to know if a result had come back for a patient and that this justified a judgement of unacceptable with regard to investigations.

The Panel has heard that you were a Primary Care Trust salaried single handed general practitioner at the C Health Centre, that you had very limited nursing and administrative support and that a change in the practice’s computer system was imposed upon you for which you received less training than would have generally been expected. The Panel has heard that there was no effective system at the practice to ensure that all test results were received. The Panel accepts Mr Stern’s submission that, while the position may have been unacceptable, your performance could only be deemed unacceptable if the systems were within your control. In the circumstances the Panel considers the evidence was insufficient to support the judgement made. The Panel notes that it has received evidence that you did carry out proper investigations.

The Panel has found Paragraph 3c not proved. In reaching this finding, the Panel noted the allegations in third party interviews that you started at step three of a five step plan regarding management of asthma and referral of a patient, whom you did not believe to be pregnant, for termination of pregnancy. The Panel did not hear any evidence to support these allegations and in any case did not consider these failings to be repeated or sufficiently serious to warrant a judgement of unacceptable.

The Panel has found Paragraph 3f not proved. It was acknowledged by Dr H, in his evidence, that you had carried out appropriate learning activities but he considered an unacceptable judgement to be appropriate in this category as your poor results in the tests of competence indicated that you had failed to learn from your educational activities. The Panel accepts Mr Stern QC’s submissions on this point and, in any event, does not consider that the tests of competence should be taken into account in the peer review assessment.

The Panel has found Paragraph 3h not proved. Although you have accepted some deficiencies in the category of communication, the Panel notes the high level of satisfaction with your practice expressed by your patients in the patient survey and does not consider that the evidence of poor practice was sufficiently serious or persistent to support an unacceptable finding. The Panel does not accept the submission made that the tests of competence can be taken into account in assessing your practice as was submitted.

The Panel has found Paragraph 3j not proved. The Panel notes that Dr H in his evidence admitted that he had not realised that you were a sole practitioner. The Panel heard evidence that working relationships at C Health Centre were problematic overall. No evidence has been heard to ascribe these difficulties to your behaviour in particular. The report criticised your failure to make clear to Dr C your reasons for attending his clinic in a learning capacity. The Panel notes that you were not asked about this by Dr C and considers that your failure to make the position clear to him was a misjudgement rather than dishonest, as alleged by Dr H.

The Panel has found proved paragraph 4a, which was amended so that the words “the Assessment Team found that” were deleted.

Miss Sullivan submitted that the tests of competence were validated tests which have been use for some considerable time and that although you had been allowed additional time to complete them, your results were at the lower end of the spectrum of results in the written test of knowledge, the simulated surgery and the Objective Structured Clinical Examination (OSCE).

Mr Stern QC submitted that no evidence of validation of the test of competence had been presented to the Panel, that the tests did not stipulate a pass-mark, that the sample against which you were assessed was unrepresentative and that it was unclear what standard you were being assessed against.

In reaching its finding, the Panel on balance accepted Miss Sullivan’s submissions. It has heard that the tests have been formulated by the Academic Centre for Medical Education and that they have been in use as a tool in the assessment of doctors for some time. The Panel considers it can place reliance on the robust nature of the tests and has not heard any evidence that would lead it to have anything less than confidence in them. The Panel notes that your scores in all parts of the test were low and has found that your overall performance was unacceptable.

The Panel has found paragraph 4b proved. In reaching this finding, it noted that your score was 56.25% in the single best answer section of the knowledge test. This was below the mean GP score of 74.42%. Your scores in the extended matching questions part of the knowledge test was 70.83%. This was below the mean GP score of 84.07%.

It was submitted on your behalf with respect to the simulated surgery that you had not practised since May 2006. However, your score of 41% was below the minimum standard of 50%.

With regard to the Clinical Skills OSCE it was submitted by Mr Stern QC that the final numerical markings were not representative of the actual assessment of your performance made at the individual stations. However, the Panel considers the validity of the statistical process can be relied upon for the reasons set out in relation to paragraph 4a. Your overall score of 63% was below the minimum score of 70%. The Panel has therefore found your performance to have fallen below the expected standard in all three components of the assessment.

Having reached its findings on the facts, the Panel will invite further submissions from Miss Sullivan and Mr Stern QC as to whether your fitness to practise is impaired.”

Determination on impaired fitness to practise

“Dr Rahim:

The Panel has considered, under the General Medical Council (Fitness to Practise) Rules Order of Council 2004, whether, on the basis of the facts found proved your fitness to practise is impaired pursuant to Section 35C(2) of the Medical Act 1983, as amended.

The Panel has given careful consideration to all the evidence adduced in this case and has taken account of Miss Sullivan’s submissions made on behalf of the General Medical Council (GMC) and those of Mr Stern QC made on your behalf. Mr Stern QC has submitted and Miss Sullivan accepted that the Panel should first consider whether your professional performance has been deficient on the basis of the facts found proved and then consider whether, in view of all the evidence adduced, your fitness to practise is impaired. The Legal Assessor advised that this was the correct approach to adopt.

Miss Sullivan has submitted that the public are entitled to expect a general practitioner to perform to an acceptable level. She submitted that your results in the tests of competence were at the lower end of the spectrum and reminded the Panel of Dr H’s evidence that the level of your performance in the tests was one of the lowest which he had seen. She therefore submitted that your performance was deficient. Miss Sullivan provided further evidence that you have on two occasions, most recently in February 2008, taken and failed a simulated surgery assessment for the Induction and Refresher Scheme retraining package organized by the London Deanery. It was submitted that, taking account of the public interest, your fitness to practice is impaired.

Mr Stern QC has submitted that the Panel had not found a single action by you to be unacceptable. He submitted that simply failing a test in itself without any adverse findings regarding your actual clinical performance could not lead to a finding of deficient professional performance.

The Panel has noted the reference made to the case of Calhaem v General Medical Council [2007] EWHC 2606 (Admin) which stated that “deficient professional performance” within the meaning of 35C(2)(b) 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.

The Panel has borne in mind that it has a duty to act in the public interest. This includes the protection of patients, the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour.
The question of impairment is one for the Panel to decide assessing the facts found proved and exercising its own independent judgement.

The Panel has heard that at the relevant times you were a General Practitioner practising at C Health Centre. On 6 and 9-11 September 2007 you underwent an assessment of the standard of your professional performance.

Fifteen categories of Good Medical Practice were assessed in the Peer Review section of the assessment. In the assessment report dated 29 November 2007 your performance was assessed as being unacceptable in the following categories: assessment, investigations, treatment, limits, records, education, audit, communication, respect and relationships.

The Panel has concerns about a number of fundamental aspects of the performance assessment which you underwent. Dr H realised in the course of his evidence to this Panel that he had been mistaken in his belief that he had been in possession of the complete medical records that were reviewed. He also came to appreciate in the course of his evidence that, contrary to his understanding at the time of the assessment, you were in fact operating at C Health Centre as a single handed general practitioner. Dr H had been under the impression that you had general practitioner colleagues at the practice.

Other aspects of the assessment also caused the Panel concern. Dr H told the Panel that your results in the tests of competence had been taken into account in a number of the categories of the peer review. The Panel considered this inappropriate. Dr H accepted that some of the deficiencies identified in the report were in fact the responsibility of Barnet Primary Care Trust (PCT) and the management of the practice appointed by the PCT. The third party interviewees had little direct evidence of your professional performance and undue weight was given to some of their comments.

In the tests of competence section of the assessment your overall performance was unacceptable and your performance fell below the expected standard in all three components of the assessment. The Performance Assessment Team concluded that the standard of your professional performance had been deficient.

In considering whether the standard of your professional performance was deficient, the Panel has borne in mind that no aspects of your performance have been found to be unacceptable other than the findings made with respect to the tests of competence. No complaints have been received and in fact, patient satisfaction with you was expressed in a patient survey.
While your performance in the tests of competence was unacceptable and fell below the standard expected, the Panel noted nevertheless that your score in the extended matching question section of the knowledge test was well within the range of scores of the reference group. Your score in the single best answer was just within this range.

The Panel does not consider that your performance in the tests of competence alone is sufficient for it to find that your professional performance was deficient. It therefore has not found your fitness to practise to be impaired.

The Panel notes the personal development plan, the certificates of courses attended, distance learning certificates and the correspondence from professional colleagues with whom you have sat since May 2006 when you last practised medicine submitted by Mr Stern QC. It considers these demonstrate a strong commitment on your part to keep the standard of your professional performance up to date. “

Confirmed 5 March 2009
Chairman

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