PUBLIC RECORD - MPTS...Jun 24, 2019 · • BTS National Safety Standards for Invasive Procedures; • Correspondence from Mr D of the GMC. The Tribunal’s Approach . ... Mr A and

Record of Determinations – Medical Practitioners Tribunal

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PUBLIC RECORD Dates: 24/06/2019 - 12/07/2019 06/09/2019 11/06/2020 - 12/06/2020 17/08/2020 - 20/08/2020

Medical Practitioner’s name: Dr Udo ALIU

GMC reference number: 4639112

Primary medical qualification: MB BS 1983 Lagos

Type of case Outcome on impairment New - Deficient professional performance Impaired

Summary of outcome Erasure Immediate order imposed

Tribunal:

Legally Qualified Chair Mr Andrew Lewis Lay Tribunal Member: Ms Miriam Karp Medical Tribunal Member: Mr Gulzar Mufti Tribunal Clerks: Mr Stuart Peachey

(24/06/2019 & 26/06/2019 AM) Ms Dee Montgomery (25/06/2019 & 26/06/2019 PM) Ms Jean Gleeson (27/06/2019) Mr Ian Leslie (01/07/2019) Mr Edward Kelly (28/06/2019 & 02/07/2019 - 12/07/2019) Mr Michael Murphy (06/09/2019 & 11/06/2020) Mr Andrew Ormsby (12/06/2020 & 17/08/2020 - 20/08/2020)

Attendance and Representation:


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Medical Practitioner: Present and not represented Medical Practitioner’s Representative: N/A

GMC Representative: Mr Edward Morgan, Counsel

Attendance of Press / Public In accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 the hearing was held partly in public and partly in private. Overarching Objective Throughout the decision making process the tribunal has borne in mind the statutory overarching objective as set out in s1 Medical Act 1983 (the 1983 Act) to protect, promote and maintain the health, safety and well-being 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 that profession. Determination on Facts - 12/06/2020 Background

1. Dr Udo Aliu obtained his basic medical qualification from the University of Lagos in 1983. He started work in general surgery in 1997 in the UK and became a Fellow of the Royal College of Surgeons in Ireland in 2001. He was awarded the Certificate of Completion of Basic Surgical Training by the Surgical Royal Colleges of Great Britain and Ireland in 2007. He worked in a number of junior posts between 2003 and 2013. In 2011 he obtained a post-graduate qualification from the University of Warwick in “Understanding Research and Critical Appraisal in Healthcare”. 2. Since August 2015, Dr Aliu has been placed in short term employment by 10 different locum agencies. From August 2015 to August 2016 Dr Aliu undertook eight separate locum appointments ranging in duration from 4 days to 2 months, for a total of approximately 22 weeks. From August 2016 to August 2017 he undertook nine short term locum appointments, ranging in duration from 4 days and 4 weeks, for a total of approximately 18 weeks in that year. Dr Aliu has not been in clinical practice since August 2017. 3. In April 2017 Dr Aliu was referred to the GMC by Mid-Yorkshire NHS Trust, after he worked at Pinderfields Hospital, Wakefield, as a locum registrar in general surgery.


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4. In September 2017, the GMC Assistant Registrar made a decision under Rule 10(6) that Dr Aliu should be directed to undergo an assessment of his professional performance. On 15 September 2017 Dr Aliu was informed of his need to undertake a performance assessment by a letter from the Assistant Registrar (Fitness to Practice Directorate). 5. The Performance Assessment (‘the Assessment’) was initially scheduled to take place on 19 - 20 March 2018. Following the cancellation of the planned assessment in March 2018 at Dr Aliu request, the Assessment was rescheduled for 10 - 11 August 2018. 6. There has been no evidence before the Tribunal relating to the circumstances of Dr Aliu’s referral to the GMC and the Tribunal has proceeded on the basis that the GMC’s case against Dr Aliu rests entirely upon his performance at the Assessment conducted on 10 and 11 August 2018. The Outcome of Applications Made during the Facts Stage

7. During the course of the stage 1 hearing, the Tribunal ruled upon a number applications by the GMC and Dr Aliu.

8. The Tribunal heard and refused an application by Dr Aliu for further disclosure of documentation. The Tribunal’s full decision on the application is included at Annex A.

9. The Tribunal granted Dr Aliu’s application to recall the GMC Performance Assessors Mr A, Mr B and Ms C, under Rule 34(1) of the GMC Fitness to Practise Rules 2004, as amended (‘the Rules’). The Tribunal’s full decision on the application is included at Annex B.

10. The Tribunal granted, in part, an application by Dr Aliu to attend the hearing by a telephone link. The Tribunal’s full decision on the application is included at Annex C.

11. The Tribunal granted the GMC ‘s application to hear further evidence from Mr A by telephone. The Tribunal’s full decision on the application is included at Annex D.

The Allegation and the Doctor’s Response

12. The Allegation made against Dr Aliu is as follows:

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


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1. Between 10 and 11 August 2018 you underwent a General Medical Council assessment of the standard of your professional performance. Admitted and found proved

2. Your professional performance was unacceptable in the following

areas:

a. Maintaining Professional Performance; To be determined b. Assessment; To be determined c. Clinical Management; To be determined d. Operative/Technical Skills; To be determined e. Record Keeping; To be determined f. Relationships with Patients. To be determined

3. Your professional performance was a cause for concern in the following area:

a. Working with Colleagues. To be determined

4. In the Knowledge Test, you scored 36.67%. This is below the standard

set score of 63.77%. To be determined

And that by reason of the matters set out above your fitness to practise is impaired because of your deficient professional performance.’ To be determined

The Admitted Facts

13. At the outset of these proceedings Dr Aliu made an admission to paragraph 1 of the Allegation, as set out above, in accordance with Rule 17(2)(d) of the General Medical Council (GMC) (Fitness to Practise) Rules 2004, as amended (‘the Rules’). In accordance with Rule 17(2)(e) of the Rules, the Tribunal announced this paragraph of the Allegation as admitted and found proved.

The Facts to be Determined

14. In the light of Dr Aliu’s response to the Allegation made against him, the Tribunal is required to determine paragraphs 2 to 4 of the Allegation.

Witness Evidence


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15. The Tribunal received evidence on behalf of the GMC from the following witnesses:

• Mr B, GMC Lead Clinical Assessor, in person and by video link; • Mr A, GMC Clinical Assessor, in person and by telephone link; • Ms C, GMC Lay Assessor, in person and by telephone link. • Mr D, GMC Performance Assessment Officer (‘PAO’), in person.

16. Dr Aliu provided his own witness statements and also gave oral evidence at the hearing.

Documentary Evidence

17. The Tribunal had regard to the documentary evidence provided by the parties. This evidence included, but was not limited to:

• Performance Assessment Report (‘the Report’), dated 18 October 2018; • Supplemental Performance Assessment Report, dated 22 October 2018; • Certificates for Dr Aliu, dated 9 July 2001, 31 January 2007, 10 July 2014; • JSD (SHO level) UHB NHS Foundation Trust Operation Logbook, dates from

16 December 2013 to 5 August 2014; • Audit data on the use of Aspirin/Statin in PVD patients at QEH, Birmingham,

dates from 2 January 2014 to 31 March 2015; • Dr Aliu GMC Revalidation, dated 18 June 2015; • Learning certificates, dated 21 April 2017 to 11 May 2019; • Supporting Letters for Dr Aliu, dated 2 May 2006 to 22 August 2011; • Skeleton Argument on Facts from Dr Aliu; • Written submissions on Facts from GMC; • GMC Tests of Competence – Assessors’ Comments and Judgement Sheets

(‘Judgement Sheets’) handwritten comment by the Assessors at each OSCE station;

• Marking sheets completed by the Medical Assessors at each OSCE station (‘the Digital Sheets’);

• BTS Guideline for insertion of a chest drain; • BTS National Safety Standards for Invasive Procedures; • Correspondence from Mr D of the GMC.

The Tribunal’s Approach

18. In reaching its decision on facts, the Tribunal bore in mind that the burden of proof rests on the GMC and it is for the GMC to prove the Allegation. Dr Aliu does not need to prove anything. The standard of proof is that applicable to civil proceedings, namely the balance of probabilities, i.e. whether it is more likely than not that the events occurred as alleged.


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The Tribunal’s Analysis of the Evidence and Findings

Witness Evidence 19. The Tribunal considered the oral evidence of the Assessors (Mr B, Mr A and Ms C) on how they conducted the Assessment and prepared the Report. The Tribunal assessed each witness with care because Dr Aliu placed particular emphasis on the concerns, he raised about the procedure adopted by the Assessors during the assessment and the Assessors’ integrity. The Tribunal found the Assessors to be honest, credible and fair. 20. The Tribunal examined with care Mr A’s evidence about the record sheets he had re-copied and it was concerned that Mr A had no recollection of recopying these documents despite being shown them and asked about them for nearly an hour. Nevertheless, for the reasons set out below, it was satisfied that he was an honest witness who carried out his role conscientiously. 21. The Tribunal was unable to accept Dr Aliu’s recollections on occasions. It did not form the view that Dr Aliu set out to mislead the Tribunal. Nevertheless, it found he was at times a contradictory witness, who had become fixed upon his concerns about the conduct of the assessment and was unable to accept that he was wrong. The Tribunal sets out the particular instances below. The Performance Assessment 22. The Assessment was directed by the Registrar under Rule 7(3) and Schedule 1 of the General Medical Council (Fitness to Practise) Rules 2004 as amended. The procedure adopted at the performance assessment was set out in the Report and confirmed by the Assessors in their oral evidence. 23. Dr Aliu’s overall performance was assessed under the following eight categories with reference to the professional standards described in GMP (2013 edition):

Domain 1: Knowledge, Skills and Performance

• Maintaining Professional Performance; • Assessment; • Clinical Management; • Operative/Technical Skills; • Record Keeping;

Domain 2: Safety and Quality

• Safety and Quality;


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Domain 3: Communication, Partnership and Teamwork and Domain 4: Maintaining Trust • Relationships with Patients; • Working with Colleagues.

The Assessment Team was comprised of three Assessors.

• Mr B – Team Leader and Medical Assessor; • Mr A - Medical Assessor; and • Ms C – Lay Assessor.

They were assisted by PAO’s Ms E, Ms F and Mr G. 24. The Tribunal accepted the evidence that the performance assessment comprised three separate exercises; a Knowledge Test, Objective Structured Clinical Examination (‘OSCE’) scenarios and a Case Based Discussion (‘CBD’), with additional interviews to support the process. 25. The Tribunal heard evidence that a full performance assessment usually includes third party interviews, observation of clinical practice and examination of a doctor’s clinical records. It heard that it was not possible to carry out these exercises in this case because the doctors invited to take part in the third-party assessment either did not agree to take part in the process or did not respond. It was not possible to examine Dr Aliu’s records or observe him in practice, because he had not practised since August 2017. The Tribunal heard that the Assessors increased the number of OSCE stations from 10 to 14 to ensure that the assessment included a fair sample of Dr Aliu’s work. 26. The Tribunal also heard that the Assessors discussed with Dr Aliu, at the first interview, the level at which his performance should be judged. They told the Tribunal that Dr Aliu was content to be assessed at the level of ST4 or ST5 trainee in general surgery, but that they decided it was fairer to him to assess his performance at the level of ST2 or ST3 trainee in general surgery, because that was the level at which he had been practising. 27. The Knowledge Test comprised of 120 Single Best Answer (SBA) questions. The questions were chosen by the Research Department of Medical Education (RDME) at UCL Medical School and were either taken from the GMC item bank or sourced from the appropriate college. The test was invigilated by two PAOs. 28. The OSCE scenarios used were chosen from a list of possible scenarios by the Team Leader, in consultation with the assessment team and RDME, to reflect a range of cases in general surgery, including breast surgery, trauma, upper gastro-


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intestinal surgery and colorectal surgery and both elective and emergency surgical procedures. There was also a compulsory Basic Life Support station. 29. The OSCE scenarios chosen were:

1. Gall stones – taking a history and advising on management; 2. Dealing with colleagues to negotiate an emergency theatre slot; 3. Trauma assessment; 4. Explaining an unexpected stoma to a patient; 5. Writing a discharge letter following an unexpected stoma; 6. Testicular torsion – taking a history and provision of a management

plan; 7. Pre-operative discussion with an anaesthetist about a patient with

dementia and ischaemic bowel; 8. Insertion of an inter-costal underwater seal chest drain (Medmeat); 9. Explaining the diagnosis and management of oesophageal cancer to a

patient; 10. Post-operative small bowel anastomotic leak - assessment and practical

management (Metiman); 11. Teaching the management of acute pancreatitis to a junior colleague; 12. Breast cyst – provision of a management plan; 13. Explaining the procedure of a mastectomy and sentinel node biopsy to

a patient; 14. Basic life support (BLS).

30. The two Medical Assessors directly observed the OSCEs, whilst the lay assessor observed remotely via an audio-visual link. At each station Dr Aliu was allowed sufficient time to read the scenario prior to entering the station. He then entered each station after indicating to the assessors that he had understood what was required of him. 31. The Tribunal heard evidence from all three Assessors that, during the assessment they contemporaneously and independently recorded their comments on their observations on a ‘judgement sheet’. Each of them was required to make a judgement in respect of each comment which was either ’acceptable’ (A) or ‘unacceptable’ (U), with reference to performance standards described in GMP. Their entries were then transcribed into the Performance Assessment database (‘the Database’).

32. The Tribunal also heard evidence that the two Medical Assessors also completed ‘digital sheets’ on which they recorded their judgement of Dr Aliu’s performance under the headings ‘acceptable’ ‘unacceptable’ or ‘borderline’. The scores on these sheets were inputted on to a computer and gave rise to the scores for each OSCE station recorded as a ‘box plot’.


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33. During the CBDs the Assessors asked questions to clarify the reasoning behind Dr Aliu’s decision-making at the OSCE stations. 25 questions based on the 14 OSCEs were formulated to provide the basis for CBDs. A planning grid was generated after the assessment and provided in evidence to the Tribunal to indicate the scope of categories covered by these questions. 34. Dr Aliu raised a number of issues regarding the way the Assessment was conducted which he argued rendered the conclusions of the Assessment unreliable. In particular he raised the following concerns.

1) There had been no discussion at the first interview regarding the level at which Dr Aliu would be assessed. Nor was there any explanation of the assessment process.

2) The assessment timetable had not been properly followed and in particular Mr A had written his judgement sheets outside the time of 7 to 10 minutes allotted to each OSCE station.

3) Mr A had not attended all the OSCEs; in support of this Dr Aliu pointed out that the hand-written timetable showed that Mr A had only attended OSCE stations 1-3.

4) Mr A had rewritten 3 Judgement Sheets outside the OSCE stations. 5) Dr Aliu challenged the independence of the Assessors and reminded

the Tribunal that this was only the second assessment undertaken by Mr A. Dr Aliu said that Mr A appeared to be ‘learning on the job’; he relied on the fact that one of Mr A’s completed Judgement Sheets was located in Mr B’s Assessment sheet folder. He argued that this showed that the two medical assessors did not act independently.

6) Dr Aliu gave evidence that Mr A had been writing during the CBD

making circles, which he took to mean that he was rewriting his Judgement Sheets during the CBD.

7) Dr Aliu pointed out that the inclusion of additional sheets by Mr A

increased the number of unacceptable judgements. 8) The Digital Sheets which translated to the OSCE scores, were dated 19

March 2018 which demonstrated that they could not reflect his scores because his assessment took place on 10 August 2018.

9) The process by which the knowledge test was marked was not sufficiently transparent.


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35. The Tribunal addressed each of these concerns and where necessary recalled witnesses to enable it to judge whether there was any substance to them. Dr Aliu put these matters to the witnesses in cross examination and gave evidence in support of them. Q1 36. Dr Aliu gave evidence to the Tribunal that there had been no discussion between him and the Assessors about the level at which he would be assessed. The Assessors gave consistent evidence that such a discussion did take place. The Tribunal has already indicated that it found them to be honest and credible witnesses and found that it is extremely unlikely that they would imagine such a discussion. The Tribunal is satisfied that it is Dr Aliu who does not accurately remember the discussion. Accordingly, the Tribunal found that there was a discussion at the first interview about the level at which Dr Aliu should be assessed. Q2 37. Dr Aliu told the Tribunal that the assessment sheets produced by the assessors could not have been written by them during the time allocated to each OSCE station. The Tribunal heard and accepted the evidence of the medical assessors that they wrote notes on the judgement sheets throughout each OSCE station and completed their notes before the next station began. They did not stick to strict time limits. The Tribunal also heard and accepted the evidence of the assessors, including the very experienced Ms C, that the timetable was flexible and on a number of occasions Dr Aliu had been given more than 7 minutes to complete a task at an OSCE station. In addition, the Tribunal does not accept that the Assessors are subject to the same time restraints as the doctor being assessed because there is no reason why they should be. Accordingly, the Tribunal was satisfied that Dr Aliu was misguided in his apparent belief that the Assessors had to complete their judgement sheets within 7 minutes at each OSCE station. Q3 38. In his evidence Dr Aliu stated that Mr A did not attend all the OSCE stations. In support of this he drew the Tribunal’s attention to the handwritten timetable of the assessment upon which ditto marks under Mr A’s name appeared only next to the first three entries on the timetable. He submitted that this showed that Mr A had attended only the first three stations. The Tribunal heard and accepted the evidence of all three Assessors that Mr A attended all the OSCE stations. Their recollection is supported by the judgement sheets Mr A completed. The Tribunal rejected the argument that the ditto marks on the hand-written timetable meant that Mr A attended only the first three stations. The Tribunal also noted that the ditto marks did not confirm the presence of Mr B or Dr Aliu at stations 4 to 14 in circumstances


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where there is no dispute that they were present. Accordingly, the Tribunal is satisfied that Mr A did attend all the OSCE stations. 39. Accordingly, the Tribunal accepted that Mr A’s judgement sheets were a genuine and independent record of his observations and rejected Dr Aliu’s suggestion that they were in any sense fabricated. Q4 40. Dr Aliu drew the Tribunal’s attention to the documentation and pointed out that Mr A had copied out three judgment sheets after the completion of the OSCE stations. The Tribunal heard the evidence of Mr A that he had no recollection of making the new copies of three judgement sheets, despite being questioned about it, although he readily accepted that the documentary evidence showed that he must have done so. 41. The Tribunal observed that when recopying the judgement sheet from OSCE station 1, Mr A had changed one judgement from acceptable to unacceptable. He told the Tribunal that he had no recollection of doing this. Nevertheless, the Tribunal was satisfied that this alteration did not undermine the integrity of his evidence because the observation which Mr A had marked as acceptable on the original judgement sheet was that Dr Aliu had been speaking ‘inappropriately’ of a referral to a cardiac-surgeon. The Tribunal readily accepted that this was an obvious mistake because it is unlikely that something ‘inappropriate’ could be judged to be ‘acceptable’. 42. The Tribunal heard and accepted the evidence of Ms C that it was not unusual for a Medical Assessor to recopy some of their judgement sheets if they were messy and illegible. It was also assisted by the evidence of Mr D, who was not present at this assessment, but had been able to examine the records. He gave evidence that the sheets that were recopied were indeed hard to read and it was not unusual for a Medical Assessor to copy sheets so that they were tidier and easier to read. 43. The Tribunal was satisfied that there were no sinister implications in copying the judgement sheets. It was also reassured in that view because there were no significant differences between the original and copied judgement sheets and Mr A had handed in both the original and copied judgement sheets in a manner that was open and transparent. Q5 44. In his evidence, Dr Aliu said that Mr A appeared to be directed by Mr B throughout the assessment process. He also reminded the Tribunal that one of Mr A’s completed judgement sheets was located in Mr B’s assessment sheet folder and argued that this was evidence of improper collusion between the Medical Assessors.


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45. The Tribunal considered first the question on Mr A’s relative inexperience and secondly whether there had been any improper collusion between the assessors. 46. The Tribunal heard and accepted evidence from Mr A that this was his second performance assessment and that he had been properly trained to carry out performance assessments. The Tribunal concluded that he had sufficient training and experience to act as a Medical Assessor in this case. 47. The Tribunal approached the completion and filing of the judgement forms with particular care. Dr Aliu cross examined the Assessors and the Tribunal questioned the Assessors about how one of Mr A’s assessment sheets came to be in Mr B’s folder. 48. The Tribunal examined the digital sheets which the Medical Assessors completed and which gave rise to the scores in each OSCE. 49. The Assessors gave clear evidence, which the Tribunal accepted, that, they had filled in their sheets independently and the presence of one of Mr A’s sheets in Mr B’s folder was not the result of any discussions between them. They also gave evidence, which the Tribunal accepted, that the sheets were never taken outside the GMC building by them. They were not able to explain how this had occurred and described it as being probably the result of an ‘administrative error’, by which they meant it had occurred after the folders had been returned to the GMC. 50. The Tribunal has already found that these witnesses were honest and reliable and it accepted that there were no improper discussions or collusion between them. The Tribunal was reassured in this conclusion by the fact that there were occasions when Mr B and Mr A expressed contrary views on their respective judgement sheets. Q6 51. Dr Aliu gave evidence that he had seen Mr A writing and circling answers during the CBD and argued that this was evidence that Mr A was re-writing his judgement sheets during the CBD. The Tribunal heard evidence from Mr B and Mr A that it was appropriate for Mr A to be making notes and circling his answers during the CBD. Mr A gave evidence to the Tribunal that he did not re-write the entries in his judgment sheets during the CBD and the Tribunal accepted his evidence. Q7 52. Dr Aliu submitted to the Tribunal that he had been disadvantaged by additional sheets which marked his performance as unacceptable. The Tribunal; heard and accepted the evidence of Mr B that the Assessment was not based upon the number of satisfactory or unsatisfactory judgements but was a ‘’qualitative


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assessment’ based upon the seriousness of any failings by Dr Aliu. It was satisfied that Dr Aliu was not disadvantaged, because the Tribunal accepted the evidence set out above that the assessors did not reach their conclusions by counting acceptable and unacceptable findings but analysed their findings in order to arrive at an overall ‘qualitative conclusion’. That is to say that they looked at the seriousness of the concerns in each case. Q8 53. The Tribunal considered the fact that the assessment sheets were dated 18 March 2018 rather than the date of Dr Aliu’s assessment on 9 and 10 August 2018. Dr Aliu put to both Mr B and Mr A that this indicated that the sheets before the Tribunal were not those completed at his assessment. The Tribunal heard and accepted the evidence of the Assessors that the assessment sheets were those created at the assessment but were wrongly dated because the assessment had originally been scheduled for 18 March 2018 and the dates on the sheets had not been changed. Q9 54. Dr Aliu told the Tribunal that he did not accept his low score in the knowledge test and did not accept that the computerised results reflected his performance. The Tribunal heard the evidence of Mr B that the test was properly invigilated and Dr Aliu’s answers were collected and put into the computer. The Tribunal accepted Mr B’s evidence and the evidence of Mr D that this is a well-established procedure that has been shown to be fair and accurate over many years. Having regard to all the evidence the Tribunal is satisfied that the sheets that were marked were those completed by Dr Aliu and they were marked in accordance with an established and fair procedure. It is reassured in this view by the fact that Dr Aliu’s low score in that test is consistent with his performance in the rest of the assessment. 55. Having regard to all the evidence the Tribunal was satisfied that the assessment was properly carried out and that the conclusions of the Assessment Team were a reflection of the Assessors’ honest professional judgement. The Tribunal then turned to the conclusions of the Performance Assessment and asked whether the GMC had discharged the burden of establishing that the Assessors were correct in their assessments. Outcome of the Performance Assessment 56. The Performance assessment was divided into 8 categories. The Assessment Team’s assessment of each category is shown in the table below, under the domain of Good Medical Practice with which the category best aligns. The Tribunal accepted the evidence that the Assessment team drew upon material from the OSCEs, the


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interviews, the CBDs and, where appropriate, the knowledge test to arrive at their conclusions about each category. Domain 1: Knowledge, Skills and Performance Maintaining Professional Performance Unacceptable

Assessment Unacceptable

Clinical Management Unacceptable

Operative/Technical Skills Unacceptable

Record Keeping Unacceptable

Domain 2: Safety and Quality Safety and Quality No Judgement

Domain 3: Communication, Partnership and Teamwork and Domain 4: Maintaining Trust Relationships with Patients Unacceptable

Working with Colleagues Cause for Concern

57. The Report defines the assessment criteria as follows

• Unacceptable indicates that there is evidence of repeated or persistent failure to comply with the professional standards appropriate to the work being done by the doctor, particularly where this places patients or members of the public in jeopardy (i.e. deficient professional performance). This grade should be entered either if you have evidence that the criteria for an acceptable level of performance are regularly NOT being met OR if negative criteria are being met.

• Acceptable means that the evidence demonstrates that the doctor’s performance is consistently above the standard described above. This grade should only be entered if you are satisfied that all or almost all of the criteria are satisfied in all or almost all of the examples that you have seen or heard reported.


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• Cause for concern means that there is evidence that the doctor's performance may not be acceptable but there is not sufficient evidence to suggest deficient professional performance. The grade should be entered if you have evidence of some instances of unacceptable performance but which, in the view of the assessing team, do not amount overall to unacceptable performance. The reasons for using this grade, rather than ‘unacceptable’, for this aspect of performance should be described.

58. In the Tests of Competence Dr Aliu’s Knowledge Test score was 36.67%, which is below the standard set mark of 63.77%. He also scored below the 25th centile in all 14 OSCE stations. 59. The Assessment Team’s unanimous opinion was that Dr Aliu’s performance was deficient and that Dr Aliu was not fit to practise at all. Tribunal’s Findings 60. The Tribunal found that Dr Aliu was assessed at the appropriate level, namely that of an ST2 trainee in surgery. Dr Aliu attended a first meeting with the assessment team on 10 August 2018 and discussed the level at which he should be assessed for purposes of this current assessment. Even though Dr Aliu felt confident working at the level of a ST4-5 trainee in surgery, it was agreed by the Medical Assessors that Dr Aliu would be assessed at the ST2 level. In his oral evidence, Dr Aliu accepted that this was the level at which he had been working but did not accept that it was the fair level at which to assess him. The Tribunal was satisfied that this was the appropriate level at which to assess Dr Aliu because he admitted in his evidence that was the level of his experience before the assessment. 61. The Tribunal bore in mind Dr Aliu’s evidence that when he met with the Assessment Team at his second interview, after completion of the assessment process, he was satisfied with how the assessment had been conducted. He felt that the team had undertaken their role very well. He had been made to feel at ease during the process and indicated that the assessors had not been hostile towards him. Paragraph 2 of the Allegation 62. The Tribunal considered the Assessment Report and the individual cases within it in detail. It took into account the evidence of all witnesses regarding both the assessment report as a whole as well as the individual cases covered within it. It also undertook a robust analysis on the evidence it had received and where it was not satisfied that the individual assessments of ‘unacceptable’ performance were proved on the balance of probabilities it found that those individual assessments to be not proved.


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63. The Tribunal’s determination of whether Dr Aliu’s professional performance was ‘unacceptable’ (on a category basis) or not was not a mathematical exercise of adding up the individual number of acceptable and unacceptable items but was based upon an analysis of the evidence taken as a whole. 64. The Tribunal was particularly mindful of those cases identified in the Report and in the oral evidence of the Assessors, which were examples of potentially serious errors that could compromise patient safety in real life situations. For this reason, the Tribunal had careful regard to the evidence in respect of the following OSCE stations:

a) Station 3 – Trauma Assessment b) Station 6 – History and management of testicular torsion c) Station 8 – Insertion of a chest drain d) Station 10 – post operative small bowel anastomotic leak e) Station 14 – Adult basic life support

65. When considering each sub paragraph of the Allegation, the Tribunal had regard to the written and oral evidence of Dr Aliu. The Tribunal had regard to the accounts set out in particular in documents D1, D2 and D10-12. The Tribunal also had regard to Dr Aliu’s oral evidence given to the Tribunal on 9 July 2019. Paragraph 2(a) of the Allegation Maintaining Professional Performance 66. In relation to Maintaining Professional Performance, the Tribunal noted the conclusions of the Assessment Report as follows:

“Dr Aliu’s very low score in his knowledge test was reflected in the knowledge he demonstrated in the OSCE stations which covered a wide range of surgical conditions. His level of knowledge about common conditions such as colorectal and breast cancer, breast cancer screening, gall stones and pancreatitis was much less than that expected of a surgical specialist registrar.”

67. Having determined that the assessment process was fair, objective and carried out by the Assessors acting independently. The Tribunal assessed the evidence before it, in particular it noted the observations from the following OSCE stations:

OSCE station 3 “Dr Aliu was asked about guidelines which would inform his management. He failed to mention any guidelines…, In particular the ATLS guidelines… which are used universally. He described the ABCDE principle,


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failing to appreciate that this was a system of examination rather than a full guideline.” OSCE station 7: “Dr Aliu was unsure about the rules for consenting patients who did not have mental capacity. In discussion he was unclear about the current guidelines for consent in such situations and failed to appreciate that there is no universal requirement for two doctors to sign the consent form.” OSCE station 8: “He [Dr Aliu] was unable to relate the procedure of intercostal chest drainage to any known guidelines … Again, he did not mention the ATLS guidelines. Knowledge and correct use of guidelines is essential when performing interventional procedures such as chest drain insertion such procedures carry inherent risks which can prove fatal and it is important that patient safety is not compromised” OSCE station 14: in discussion, Dr Aliu said that he gave a “precordial thump” to start the heart, indicating he believed it was part of current teaching for basic life support when this is no longer the case. He also indicated that the rate of cardiac compression to be used was 30 per minute for adults and 15 per minute for children. However, the current guidelines issued by the Resuscitation Council UK is 100-120 per minute.

68. The Tribunal accepted the evidence in the Assessment Report that “failure to deliver cardiac compressions at this rate will not provide sufficient cardiac output and as a result severely jeopardise the chances of patient survival”. 69. In answer to a question from the Tribunal regarding the ATLS guidelines Dr Aliu stated, “I did not mention any ATLS guidelines. Instead I insisted on the ABCD principle of resuscitation.” 70. Having regard to all the evidence, the Tribunal accepted the conclusion of the Assessment Report:

“The Assessment Team’s opinion based on the significant evidence reviewed is that in the category of maintaining professional performance Dr Aliu’s performance is unacceptable.”

71. The Tribunal therefore finds Paragraph 2(a) of the Allegation proved. Paragraph 2(b) of the Allegation Assessment 72. The Tribunal had regard to the evidence, in particular it noted the significant observations from the following OSCE stations:


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OSCE station 3: “In discussion Dr Aliu provided a poor description of how to assess a major trauma victim. It was inaccurate and showed lack of understanding of the process. In addition, he failed to recognise the danger of asking a patient to move his legs in the presence of a possible pelvic or spinal injury.” OSCE station 6: “Dr Aliu incorrectly changed his working diagnosis from one of likely torsion to epididymo-orchitis based on the examination findings rather than the patient’s history … This would have led in a real life scenario to a missed diagnosis and potential loss of the testicle.” OSCE station 10: “Dr Aliu did not take a history from the patient or show a systematic approach to examination and very importantly failed to examine her abdomen. He did not request blood cultures despite the patient showing signs of sepsis. Failure to perform abdominal examination meant that Dr Aliu did not discover the patient’s generalised peritonitis that’s not appreciating the need for urgent surgery. Without such surgical intervention the patient’s chances of survival would be severely compromised”.

73. The Assessment Team concluded that:

“In some cases Dr Aliu was aware of the need to assess the severity of a patients condition so that treatment could be directed accordingly. However, in many of the cases observed vital elements of the assessment, including both history and examination, were absent. As a result, formulation of the correct diagnosis was not achieved. This was seen especially in patients who were critically ill or injured and where incorrect assessment would lead to poor patient outcomes, perhaps fatal. Similarly, failure to diagnose testicular torsion in a timely fashion will lead to delayed treatment and subsequent loss of the affected testicle.”

74. During his oral evidence Dr Aliu was questioned by the Tribunal about OSCE station 3 (trauma assessment). He denied that he had rolled over the patient who may have had a pelvic or spinal injury. He explained that the patient said he had pain on the right hip so he tried to do “what you call hip expansion or extension.” He said that he did a “hip compression test” and he was confident this would not “jeopardise” the patient. 75. He was asked to comment on the suggestion that he had asked the patient to roll to one side and then attempted to move the patient himself to roll him to the other side. He replied as follows “yes the patient was able to move the limbs… He could move the upper limbs so there was no injury at the cervical spine although he had a collar.… Of course I tested the limbs but he was particularly telling me I have pain on the right shoulder”.


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76. In response to questioning by the Tribunal regarding OSCE 6, testicular torsion, Dr Aliu said first that the volunteer playing the patient had changed his account from saying that he had pain for three hours to saying that he had pain for six days. He said the patient “pulled out the pants he was wearing and I saw his scrotum red and big.” He added that the “patient” then told him he had had the pain for between “3 to 6 days”. 77. When Dr Aliu was asked whether he thought he was dealing with a patient or a volunteer, he said, “To me it looked like it was an actual patient brought in either from the A&E that day for the OSCE because it does happen. You could get a patient from A&E, prescribe for them to go because that patient was - he had open case of epididymo-orchitis.” 78. In response to questions by the Tribunal regarding OSCE 10, Dr Aliu was clear that his assessment was correct and the readings for blood pressure at 103 over 80 should not have given him cause for concern. 79. Although the Tribunal did not feel that Dr Aliu was trying to mislead, nonetheless it found it impossible to accept his evidence. He demonstrated no understanding of the danger of moving a patient with suspected spinal injury. His account of OSCE station 6 demonstrated that he did not understand he was examining an volunteer who could give him answers but would not display the symptoms of a red and swollen scrotum. In the context of this evidence, the Tribunal could not accept that the volunteer had changed his account in the way Dr Aliu described, and that this had gone unnoticed by both medical assessors. 80. In these circumstances, the Tribunal accepted the account given by the Assessors where it differed from that given by Dr Aliu. 81. Accordingly, the Tribunal found Paragraph 2(b) of the Allegation proved. Paragraph 2(c) of the Allegation Clinical Management 82. The Tribunal had particular regard to the following OSCE stations:

OSCE station 10: “Overall, Dr Aliu provided grossly inadequate care for this acutely unwell patient by not giving sufficient intra-venous fluids. As a result she would almost certainly have developed renal failure and subsequent multi-organ failure. Given the care he provided, her chances of survival would have been significantly compromised.”


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OSCE station 14: “Dr Aliu did not call for help immediately when faced with an unresponsive patient … When providing mouth-to-mouth respiration…Dr Aliu did not pinch the patient’s nose thus rendering the ventilation ineffective … Dr Aliu’s claim in the case-based discussion that the patient had shown no deterioration during his resuscitation attempts was unfounded”

83. The Performance Assessment Report concluded that:

“Dr Aliu showed some basic knowledge of preparing a patient for elective surgery and how to manage surgical patients who were acutely unwell. However his management was considerably impaired by a large number of significant failings. These were most notably seen in his inability to perform effective resuscitation of an acutely ill post-operative patient and an unconscious patient who had suffered a cardiac arrest. In both these cases patient outcomes were poor and would result in a high likelihood of mortality”

84. During questions from the Tribunal regarding OSCE 10, Dr Aliu was asked whether he thought the patient was tachycardic or hypotensive in the light of the readings he had been given. He replied ”The patient was definitely not hypotensive. If he was hypotensive I would have increased the fluid level from 4 litres to 6 litres.” He explained that he had not given more fluids because he did not want to strain the patient’s heart. He did not accept that the “patient” had required a greater fluid intake. 85. In answer to further questions from the Tribunal regarding OSCE 14, basic life support, Dr Aliu said that the judgement that the artificial respiration did not result in chest inflation was a subjective judgement and he rejected it. When asked to explain why he had said that the rate of cardiac compression was 30 times per minute for adults, he replied, “no I take two compression, the cardiac compression by two breaths.” In the end he could not remember what he had said to Mr B. Nor could he explain the correct number of breaths per minute required. 86. The Tribunal found that even though Dr Aliu showed some basic knowledge of how to manage an acutely unwell surgical patient his overall management of such patients was poor, which could lead to adverse clinical outcomes including mortality in real life situations. 87. Accordingly, the Tribunal found Paragraph 2(c) of the Allegation proved. Paragraph 2(d) of the Allegation Operative/Technical Skills


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88. The focus of the Assessment Report under this sub paragraph was OSCE station 8, the insertion of a chest drain for traumatic haemothorax and Dr Aliu’s manual dexterity and hand eye coordination as a surgeon. 89. At OSCE station 8: the Assessors concluded that, “Dr Aliu failed to clamp the chest drain once inserted thus potentially allowing air to be drawn into the pleural cavity. He also failed to secure the chest drain prior to attaching it to the drainage tubing, a situation which might lead to its displacement. In trying to connect the chest drain to the drainage tubing Dr Aliu did not remove the graduated introducer. He then connected the drainage tube to the underwater seal bottle incorrectly by using the wrong the wrong port on the bottle. As a result the tube was not below the water-level and an effective underwater seal was not achieved. Again, this would allow air to be drawn into the pleural cavity causing the lung to collapse and the patient’s respiratory function would be compromised.” 90. The Performance Assessors also concluded that Dr Aliu’s manual dexterity and hand eye coordination, observed when he was tying a suture, were of a low standard and did not meet that normally seen in a middle-grade surgical specialist registrar. 91. Further, the Medical Assessors told the Tribunal that they were so concerned about Dr Aliu’s performance that they felt duty bound to immediately inform the GMC to protect the public. They reported their concerns in the following terms:

“Not only were his skills lacking … his understanding of the procedure was very poor. The potential risks posed to patients led the assessors to write an interim report to the GMC Fitness to Practise Department suggesting that Dr Aliu should not be allowed to undertake interventional procedures without direct supervision.”

92. They also noted that:

“In inserting a chest drain into a MEDmeat station, his [Dr Aliu] practise was dangerous and risked serious injury and potential loss of life if it was a real life situation. The team felt he also lacked insight into his failings and the fact that what he was doing was very dangerous.”

93. In answer to questions from the Tribunal, Dr Aliu accepted that he did not sweep the pleura to ensure the absence of any underlying viscera “... prior to insertion of the drain." He explained that this is because he didn’t “know what was underlying there”. 94. He accepted that the trocar (a metal rod inside the plastic tube) was still inside the tube when he started to insert it into the patient’s chest. He said that the tube was not rigid enough for him to insert if you removed the trocar any sooner. He


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said he removed the trocar “when I was sure I was inside the cavity”. In his written evidence, Dr Aliu said that the instruments for the chest drain were “incomplete and wrong”. He also explained that the trocar should never have been within the tube on the trolley. 95. Dr Aliu was asked whether he had then clamped the tube in place. He emphasised that there was no clamp available to him. He explained that he “cannot clamp the tube with the trocar still in there”. He emphasised that the trocar was not inside the “patient”. He accepted that he had not asked for a chest x-ray but said that was because he did not have time. He said of Dr B that “he did not allow me, he rushed me out. I must be frank”. 96. Dr Aliu said that he had inserted a number of chest drains during his career. He had not inserted one into a real patient since 2003 but had been on a refresher course in 2014 and received a certificate. 97. The Tribunal found Dr Aliu’s account to be both confused and confusing. It came to the conclusion that Dr Aliu had little understanding of how to insert the chest drain, how he should have dealt with the trocar and how he should have clamped the tube. The Tribunal found that he tried to justify his technique and complained that he did not have adequate equipment. The Tribunal also found that he did not appreciate the potentially serious consequences of his actions in real life situations. 98. The Tribunal preferred the evidence of the medical assessors and concluded that Dr Aliu’s technical skills in this important area and his manual dexterity as a surgeon were unsatisfactory. 99. Accordingly, the Tribunal found Paragraph 2(d) of the Allegation proved. Paragraph 2(e) of the Allegation Record Keeping 100. The Assessors concluded that Dr Aliu’s record keeping was unacceptable because of the way he completed a single discharge summary. 101. The Tribunal accepted the evidence that there were errors in this summary. It noted that a dosage of paracetamol was recorded in a somewhat old fashioned manner (2 x 500mg rather than 1g) and the dosage of Ibuprofen was inaccurately recorded. Nevertheless, the Tribunal concluded that the errors were not sufficiently grave to substantiate a finding of inadequate record keeping, based only on a single document. 102. Therefore, the Tribunal found Paragraph 2(e) of the Allegation not proved.


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Paragraph 2(f) of the Allegation Relationships with Patients 103. The Tribunal took into consideration the following conclusions from the Assessment Team:

“Although he was polite and friendly to some patients, Dr Aliu did not show this behaviour consistently and was seen to interrupt patients, failing to appreciate when a patient wished to speak. Such behaviour is likely to annoy patients and lead to an unsatisfactory doctor-patient relationship”

“When breaking bad news Dr Aliu did not show empathy in a consistent fashion and cases were noted where he caused his patients unnecessary alarm and distress.”

“Importantly there were several cases were Dr Aliu failed to establish the patient’s understanding, perspective or prior knowledge and he failed to routinely check that patients had understood information he had given them correctly. Dr Aliu failed to show understanding of the importance of this issue, especially in relation to patients with malignant disease.”

104. In addition to the written evidence in the report, the Tribunal accepted the oral evidence of Ms C. It had already formed the view that she was a witness who had listened to Dr Aliu sympathetically and carefully in forming her professional view. The Tribunal heard evidence that in the case of the Stoma patient in OSCE 4 Dr Aliu spoke over the patient and didn’t let her express her concerns, even though she had initiated the meeting. Ms C noted that Dr Aliu had no awareness of the patient’s agitation. She noted that Dr Aliu’s listening skills were lacking and questions needed to be repeated. In relation to the cancer patient in OSCE station 9, Dr Aliu avoided breaking news to her for an unexpectedly long time. Eventually when he did advise her, he didn’t respond to her distress, nor did he offer her support. Further, Dr Aliu spoke over her when she tried to speak. 105. Dr Aliu reminded the Tribunal not to rely upon judgements that were essentially subjective. The Tribunal was aware of this risk but concluded that all the conclusions relied upon under this sub paragraph were based upon specific examples and were observed by the Assessors independently. The Tribunal was satisfied that they were exercising sound professional judgment. The Tribunal found their evidence persuasive. 106. Accordingly, the Tribunal found Paragraph 2(f) of the Allegation proved.


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Paragraph 3 of the Allegation Working with Colleagues 107. The Tribunal considered the particular professional standards that are set out in the relevant version of GMP (2013). 108. The Tribunal noted and took into account the positive comments from the Assessors:

“Dr Aliu introduced himself to the student and greeted her warmly, in an approachable manner and putting her at ease”

“Dr Aliu recognised the need to assess the student’s understanding of basic anatomy, physiology and medical terminology and to take this into account when teaching her” “Dr Aliu’s attitude was pleasant, polite and non-confrontational. He remained patient and calm despite the distress of his colleague”

109. The Tribunal also noted the Assessors’ adverse comments:

“Dr Aliu confused the nurse caring for the patient and gave contradictory instructions to her especially with regard to the need for a CT scan. In the same station he spoke over the nurse when she was checking her understanding of what tasks he wished her to complete”

110. The Tribunal carefully considered all of the evidence including the conclusions of the Assessment Team which stated:

“Dr Aliu generally showed a polite and respectful manner towards his colleagues. However in many cases he communicated in a manner that was not sufficiently clear and led to his colleagues becoming confused. In casebased discussions there were examples where Dr Aliu failed to understand the question put to him in a clear fashion. Despite repeating the questions Dr Aliu was unable to provide clear and appropriate answers.” “Based on the evidence the team’s opinion of the doctor’s performance in this category is cause for concern”

111. Taking all the evidence into consideration the Tribunal determined that the issues were serious enough to warrant finding this Allegation proved. 112. Accordingly, the Tribunal found Paragraph 3(a) of the Allegation proved.


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Paragraph 4 of the Allegation The Knowledge Test 113. Having established and accepted that the overall assessment process was fair and conducted appropriately the Tribunal went on to consider the evidence of the knowledge test score. 114. The Tribunal accepted oral and documentary evidence from the Assessors and the PAO’s that the test was properly set and invigilated and the results authenticated by an external body. The Tribunal noted that the outcome of the knowledge test was generated some weeks after the OSCE and CBD assessments so that this result played no part in the decision making of the Assessors, who played no part in the scoring of the test. 115. In the Tests of Competence Dr Aliu’s Knowledge Test score was 36.67%, below the standard set mark of 63.77%. He also scored below the 25th centile in all 14 OSCE stations. 116. The Tribunal has considered carefully Dr Aliu’s evidence that the test result is a surprise to him because he thought he had done better than his score suggests. It also understands his frustration at not being able to see his answer paper to check his answers and scores. Nevertheless, having regard to all the evidence and in particular the fact that the test marks are consistent with Dr Aliu’s performance in the OSCEs, the tribunal is satisfied that the evidence accurately reflects Dr Aliu’s performance in the test. 117. Accordingly, the Tribunal found Paragraph 4 of the Allegation proved. The Tribunal’s Overall Determination on the Facts

118. The Tribunal has determined the facts as follows:

‘1. Between 10 and 11 August 2018 you underwent a General Medical Council assessment of the standard of your professional performance. Admitted and found proved

2. Your professional performance was unacceptable in the following

areas:

a. Maintaining Professional Performance; Determined and found proved

b. Assessment; Determined and found proved


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c. Clinical Management; Determined and found proved d. Operative/Technical Skills; Determined and found proved e. Record Keeping; Determined and found not proved f. Relationships with Patients. Determined and found proved

3. Your professional performance was a cause for concern in the following area:

a. Working with Colleagues. Determined and found proved

4. In the Knowledge Test, you scored 36.67%. This is below the standard

set score of 63.77%. Determined and found proved

And that by reason of the matters set out above your fitness to practise is impaired because of your deficient professional performance.’ To be determined

Determination on Impairment - 18/08/2020 1. The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether, on the basis of the facts which it has found proved, as set out before, Dr Aliu’s fitness to practise is impaired by reason of deficient professional performance. The Evidence 2. The Tribunal has taken into account all the evidence received during the facts stage of the hearing, both oral and documentary. The Tribunal also heard evidence from Dr Aliu at this stage. 3. In his evidence to the Tribunal, Dr Aliu said that he had kept himself appraised of up-to-date medical knowledge through the BMJ and Medscape. He reminded the Tribunal that he had not been allowed contact with patients because he had been suspended from practice. He confirmed that he had no written evidence of his studies but repeated that he had kept abreast of medical practice by reading. 4. In answer to questions from Mr Morgan, Dr Aliu said that he thought he had done well in the assessment although he could not remember saying that he thought he could be a consultant. He confirmed that when he received the assessment, he did not accept the conclusions and did not accept them now. He said that the assessment was the view only of Mr B because Mr A had insufficient experience and the other assessor was not medically qualified. He said that the assessors could not make a judgement after only eight hours. He had never accepted their view and still maintained that the report was the result of “collusion”.


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5. In answer to questions from the Tribunal, Dr Aliu said that he had tried to receive confirmation of his reading with Medscape but they had emailed him saying they could not send him confirmation. However, he was not able to find that email. When pressed about the studying he had done to keep his skills and knowledge up-to-date, he offered to show the tribunal the copies of the BMJ that he had read. Submissions GMC Counsel’s Submissions 6. In addition to his oral submissions, Mr Morgan provided the Tribunal with a written document entitled, ‘GMC submission on impairment’. On behalf of the GMC, Mr Morgan submitted that Dr Aliu’s fitness to practise was impaired by reason of deficient professional performance. 7. Mr Morgan submitted that the August 2018 assessment was intended as an opportunity for Dr Aliu to demonstrate his level of competence and was defined and offered at the level that was deemed appropriate for an ST2 registrar in general surgery. He further submitted that the OSCEs used in the assessment were designed to correspond with the areas of practice with which Dr Aliu said he was familiar. 8. Mr Morgan submitted that Dr Aliu has never considered for a moment that results of the performance assessment might be accurate and is unable to grasp that his own perspective of his ability might be misplaced. He stated that Dr Aliu’s continued rejection of the results of the performance assessment is evidence of a lack of insight. 9. Mr Morgan stated that there was nothing equivocal in the results of the performance assessment and that there was cogent evidence of fundamental deficiencies in Dr Aliu’s medical knowledge and practice. 10. Mr Morgan further submitted that Dr Aliu had not demonstrated any remediation and that he has had ample opportunity over the last three years to undertake shadowing opportunities and accredited courses to keep up to date with medical practice and show how he has been improving his medical knowledge. Mr Morgan submitted that the reason Dr Aliu had not taken adequate steps to remediate was because he did not accept the findings of the performance assessment report and has not engaged with its terms. 11. Mr Morgan conceded, on behalf of the GMC, that resistance to the allegations is not necessarily indicative of lack of insight or impairment. However, he invited the Tribunal to reconsider the detail of the Dr Aliu’s evidence at the facts stage and in particular, the challenges made by him to the assessment process and the integrity of the assessors. Mr Morgan submitted that the position adopted by Dr Aliu was evidence


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of a closed mind to the views of his professional colleagues and a lack of engagement with the matters identified by them. 12. Mr Morgan submitted that the experienced and impartial assessors who compiled that report stated that Dr Aliu’s medical knowledge was far below acceptable standards and was comparable to the level of knowledge expected from a Foundation doctor and that, while the issue remains one for the Tribunal, there was sufficient evidence to be satisfied that Dr Aliu’s fitness to practise is impaired by reason of deficient professional performance. Dr Aliu’s Submissions 13. In addition to his oral submissions, Dr Aliu provided the Tribunal with a document entitled ‘Dr Udo Musa Aliu’s Submission on the non-impairment of his fitness to practise (from 17 August 2020 to 25 August 2020)’. 14. Dr Aliu submitted that he does have insight into the level of his medical knowledge but that that performance assessment carried on 10 and 11 August 2018 was rushed and not an accurate assessment of his abilities. He further submitted that his fitness to practise is not impaired by reason of deficient professional performance. 15. Dr Aliu submitted that he had practised medicine since 1983 and was a member of the Royal College of Surgeons. He stated that it was unfair to form an impression of his medical abilities and career based on a single eight-hour assessment. 16. Dr Aliu further stated that the process and format of the performance assessment was flawed and that he felt aggrieved that his level of medical practice and knowledge had been compared to that expected from a medical student. He further stated that the performance assessment was an ‘insult to the medical profession’. 17. Dr Aliu further submitted that he disputed the findings of the Objective Structured Clinical Examination (‘OSCE’) scenarios and that it would have been better for the assessors to shadow him in his actual practice and considered that this would have been a fairer assessment. The Relevant Legal Principles 18. The Tribunal heard the advice of the Legally Qualified Chair in open session and has followed that advice in its decision. 19. The Tribunal reminded itself that at this stage of proceedings, there is no burden or standard of proof and the decision of impairment is a matter for the Tribunal’s judgement alone.


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20. In approaching the decision, the Tribunal was mindful of the two part process to be adopted: first whether the facts as found proved amounted to deficient professional performance and then whether the finding of deficient professional performance lead to a finding of impairment. 21. When considering the question of deficient professional performance, the Tribunal had regard to the case of Calhaem v GMC [2007] EWHC 2606 (Admin), in which it was held that:

‘’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.’

22. Turning to the question of impairment the Tribunal bore in mind that it must determine whether Dr Aliu’s fitness to practise is impaired today, taking into account his conduct 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. 23. The Tribunal took into account the following guidance formulated by Dame Janet Smith in her Fifth Shipman Report, which was applied by the High Court in the case of Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin) (at paragraph 76), to the extent relevant to the facts of the case:

‘Do our findings of fact in respect of the [Doctor’s] misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that she/he:

a) has in the past acted and/or is liable to act in the future so as to put a patient or patients at unwarranted risk of harm; and/or

b) has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession…’

The Tribunal’s Determination on Impairment Deficient Professional Performance


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24. The Tribunal first considered whether the facts found proved in respect of the Allegation amounted to deficient professional performance. In determining whether Dr Aliu’s conduct amounted to deficient professional performance the Tribunal had regard to all the evidence relating to the Performance Assessment and Good Medical Practice (2013) (‘GMP’). 25. The Tribunal was satisfied that the standard of Dr Aliu’s professional performance has been judged by reference to a fair sample of his work, except for the area of record keeping, and against the standard of professional work that is reasonably expected of him, namely an ST2 grade surgical registrar. 26. The Tribunal noted that the assessment methods that were used to assess Dr Aliu’s performance were limited for the reasons set out above and did not include a medical records review or third parties interviews. Nevertheless, the Tribunal was satisfied that the knowledge test, the extended range of OSCEs, the Case Based Discussion and the interviews with Dr Aliu did provide a fair sample of his work. This is because of the wide range of work relevant to Dr Aliu’s practice covered by the assessment. 27. The Tribunal found that the results of some of the OSCE scenarios included in the performance assessment were of particular concern that could put patients at risk in a real life situation. The Tribunal was particularly concerned by the following examples.

a) During a trauma assessment OSCE scenario (No 3) Dr Aliu attempted to move a patient with suspected spinal injury. This could have resulted in permanent disability.

b) During a testicular torsion OSCE scenario (No 6) Dr Aliu failed to diagnose testicular torsion in a timely fashion which would have led to delayed treatment and subsequent loss of the affected testicle. c) At OSCE station 8 Dr Aliu inserted a chest drain in a way that was potentially dangerous to patient safety and fell far below the standard expected of a surgical registrar.

d) During a post-operative small bowel anastomotic leak assessment and management OSCE scenario (No 10) Dr Aliu failed to understand that the patient might need more fluids to mitigate the risk of becoming hypotensive.

e) At OSCE station 14, Dr Aliu failed to follow the principles of basic life support. His technique would put a patient at risk of death.

28. The Tribunal found that these errors were part of a wider pattern of deficient performance, born out by Dr Aliu’s performance in the knowledge test and the


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subsequent discussions. These were not isolated errors of judgement. Rather, the range and depth of the failures was evidence of a lack of clinical knowledge and skill. 29. The Tribunal had regard to the following provisions of GMP.

a) the ‘knowledge, skills and performance’ domain as set out under ‘The duties of a doctor registered with the General Medical Council’, namely:

‘• Provide a good standard of practice and care.

- Keep your professional knowledge and skills up to date. - Recognise and work within the limits of your competence.’

b) the following paragraphs of GMP

‘8. You must keep your professional knowledge and skills up to date.’

‘9. You must regularly take part in activities that maintain and develop your competence and performance.’

30. The Tribunal found that, by reason of the matters set out above, Dr Aliu was in breach of those provisions and of a fundamental tenet of the profession. 31. In all the circumstances the Tribunal considered that the results of the performance assessment carried out on 10 and 11 August 2020 did constitute deficient professional performance. Impairment 32. Having found that the facts found proved amounted to deficient professional performance the Tribunal went on to consider whether, as a result of that deficient professional performance, Dr Aliu’s fitness to practise is currently impaired. 33. For the reasons set out above, the Tribunal was satisfied that Dr Aliu’s deficient professional performance put patients at risk and breached a fundamental tenet of the profession. 34. The Tribunal considered Dr Aliu’s level of insight and whether the deficiencies in his practice were remediable, whether they have been remediated and whether they are likely to recur. The Tribunal accepted that it may be possible to remediate deficiencies in performance if a doctor has insight and is willing and able to engage with remediation.


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35. The Tribunal noted that, in his oral and documentary evidence, Dr Aliu failed to show any evidence of insight into his deficient performance and could not accept that his performance in the assessment was poor. On the contrary, Dr Aliu criticised the assessment process and refused to accept the Tribunal’s findings of fact. In the circumstances the Tribunal concluded that Dr Aliu had shown no evidence of insight. 36. The Tribunal also considered that Dr Aliu had provided no real evidence of remediation. It noted that, besides his stated reading of the BMJ, there was no evidence of continued professional development and little understanding of the training opportunities still open to him whilst not in clinical practice. The Tribunal considered that this lack of remediation stemmed from his overall lack of insight and his belief that his performance was perfectly acceptable.

37. Overall, the Tribunal considered there was a risk to patients because of Dr Aliu’s current lack of insight into his deficient professional performance and lack of remediation.

38. The Tribunal also found that a finding of impairment was necessary to maintain public confidence in the profession and uphold professional standards. The Tribunal found that an informed member of the public would be shocked and their confidence in the profession would be undermined if they knew that a doctor could practise at a level that put patients at risk, without a finding of impairment. 39. The Tribunal concluded that Dr Aliu’s fitness to practise is impaired by reason of deficient professional performance pursuant to Section 35C(2)(b) of the Medical Act 1983, as amended. Determination on Sanction - 20/08/2020 1. Having determined that Dr Aliu’s fitness to practise is impaired by reason of deficient professional performance, the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction, if any, to impose. The Evidence 2. The Tribunal has taken into account evidence received during the earlier stages of the hearing where relevant to reaching a decision on sanction. 3. The Tribunal received no further evidence on behalf of the GMC but received written submissions in a document entitled: ‘GMC Submission on Sanction’, dated 18 August 2020. 4. The Tribunal received no further evidence from Dr Aliu but received an email entitled ‘Determination’ between Dr Aliu and the MPTS dated 18 August 2020.


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Submissions GMC Counsel’s Submissions 5. On behalf of the GMC, Mr Morgan referred the Tribunal to the relevant provisions of the Sanctions Guidance (February 2018) (‘SG’) and submitted that the issue of sanction was a matter for the Tribunal. 6. He submitted that it would be inappropriate for the Tribunal to take no action on Dr Aliu’s registration as there are no exceptional circumstances which could justify that course of action in this case. 7. Mr Morgan submitted that conditions would be neither appropriate nor workable in this case because Dr Aliu had no insight and rejected the notion that he needed to remediate. He reminded the Tribunal of the evidence that it would not be safe to allow Dr Aliu to practise, even with supervision. He also drew the Tribunal’s attention to the relevant provisions in paragraphs 81 and 82 of SG, set out below. 8. Mr Morgan submitted that suspension was not appropriate in this case because the level of Dr Aliu’s performance, taken together with his lack of insight and unwillingness to remediate, was fundamentally incompatible with continued registration. He submitted that suspension is appropriate only where the doctor demonstrates potential for remediation or retraining. He submitted that Dr Aliu did not have that potential because of his lack of insight. 9. Mr Morgan further submitted that the only sanction which is both fair and proportionate is that of erasure. The sanction of erasure reflected the seriousness of the concerns which have been identified, the deficiencies identified in the Performance Assessment in which the Dr Aliu had participated and the need to uphold standards and maintain public confidence. Dr Aliu’s Submissions 10. Dr Aliu submitted that he has never harmed any patients in all his years of practice from when he qualified in 1983 to the present day. He submitted that he had always worked diligently and faithfully throughout his career and that no sanction should be imposed upon his registration. 11. Dr Aliu submitted that he does indeed have insight. He further submitted that it would not have been possible for a doctor without insight to qualify at the Royal College of Surgeons of Ireland and carry out research at the University of Warwick. He submitted that he had always met required standards in his places of work and study. He further stated that he had written to the BMA to ask for information regarding relevant courses. However, because he was suspended, his options regarding


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shadowing clinical positions were limited and he had been told he could not shadow or see patients, while suspended. 12. During his submissions, Dr Aliu told the Tribunal that his registration had previously been subject to conditions following a GMC investigation in 2005 and he had successfully returned to full registration in 2010. Dr Aliu was critical of the length of time that the current MPT hearing had taken and submitted that this had caused him real injustice. He noted that from 2010 until the Performance Assessment he had worked diligently and submitted that the Tribunal should lift his (interim) suspension immediately. 13. Dr Aliu further submitted that his practice was not unsafe and that he regards patient care and empathy as paramount. He also said that sometimes his accent and age may lead to people forming a negative opinion of his capabilities. Dr Aliu submitted that he is a layman and not a lawyer, and in the circumstances, believed that the Performance Assessment and the subjective opinions of the two assessors were flawed. The Tribunal’s Determination on Sanction 14. The Tribunal heard the advice of the Legally Qualified Chair in open session. It accepted that advice and has followed it in this determination. 15. The decision as to the appropriate sanction to impose, if any, is a matter for the Tribunal exercising its own judgement. In reaching its decision, the Tribunal has taken account of the SG and Good Medical Practice (2013) (‘GMP’). It has borne in mind that the purpose of a sanction is not to be punitive, but to protect patients and the wider public interest, although it may have a punitive effect. 16. The Tribunal has taken into account its findings of fact, its determination that Dr Aliu’s fitness to practise is impaired, as well as the submissions made by Mr Morgan on behalf of the GMC, and the submissions made by Dr Aliu. 17. In reaching its decision, the Tribunal had regard to the principle of proportionality, weighing Dr Aliu’s interests with those of the public. The public interest is reflected in the overarching objectives set out in the Medical Act 1983. 18. The Tribunal first considered the mitigating and aggravating factors in this case and then moved on to consider each sanction in ascending order of severity, starting with the least restrictive. Mitigating and Aggravating Factors 19. The Tribunal first considered the mitigating factors in relation to Dr Aliu’s deficient professional performance:


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• Dr Aliu has fully engaged with the regulatory process and all the stages of this hearing;

• There is no evidence before this Tribunal that Dr Aliu has ever harmed a patient in his career.

20. The Tribunal then considered the aggravating factors:

• There is a real risk of serious harm to patients from Dr Aliu’s deficient performance.

• Dr Aliu’s lack of insight into his deficient professional performance; • There is little, if any, evidence of focussed remediation; • The extent to which Dr Aliu’s lack of insight has led him to not only reject all

the finding of the Performance Assessment but to engage in unjustified personal attacks on the assessors, who he has accused of dishonesty and collusion.

No Action 21. The Tribunal first considered whether to conclude the case by taking no action. 22. The Tribunal determined that to take no action would not be appropriate given the seriousness of the proven deficient professional performance and the need to protect the public. The Tribunal did not find any exceptional circumstances that would justify such a course. Conditions 23. The Tribunal considered whether it would be appropriate and sufficient to impose conditions on Dr Aliu’s registration. The Tribunal recognises that in many cases involving even serious departures from accepted clinical standards, conditions may be appropriate and proportionate in order to protect the public and allow the doctor an opportunity to improve their clinical skills through training. It bore in mind that any conditions imposed should be appropriate, proportionate, workable and measurable. 24. When considering the feasibility of imposing an order of conditions on Dr Aliu’s registration the Tribunal had particular regard for paragraphs 81(c), 82(b) and 82(c) of the SG.

‘81 Conditions might be most appropriate in cases:

…

…


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c where there is evidence of shortcomings in a specific area or areas of the doctor’s practice’

‘82. Conditions are likely to be workable where:

a the doctor has insight b a period of retraining and/or supervision is likely to be the most appropriate way of addressing any findings’ c the tribunal is satisfied the doctor will comply with them d the doctor has the potential to respond positively to remediation or retraining or to their work being supervised.

25. When the Tribunal considered the feasibility and appropriateness of imposing conditions on Dr Aliu’s registration it had regard to and, accepted the oral evidence given by Mr B on 26 June 2019 when, in answer to a question from the Tribunal on the feasibility of Dr Aliu working with his registration subject to conditions, Mr B replied that:

‘I think collaborating the evidence, the database, it did seem that we couldn't see this doctor working independently, even with close supervision, without remediation.’

26. The Tribunal also noted and accepted the oral evidence of Mr A on 27 June 2019 when he stated:

‘I don't think he can function as a doctor even with supervision. He would need a level of supervision which is untenable. It would actually mean someone else doing the job and him standing there as a shadow.’

‘he is not at a level to practise as a doctor because of the inadequacies he demonstrated throughout the assessment process.’

27. The Tribunal also accepted Mr A’s answer when he was asked what level of retraining Dr Aliu would require and/or what remediation Dr Aliu would need to demonstrate before he was safe to practise again. In response Mr A stated that:

‘I think the level of retraining required essentially would probably require, you know, returning to a sort of medical school level teaching. At the stage that Mr Aliu was at during the assessment I don't think he would pass a medical school's final examination. He would not be able to work at a level expected


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of a foundation year one doctor and therefore the level of retraining required would be rudimentary and at medical school level.’

28. The Tribunal, in all the circumstances, concluded that the breadth and depth of Dr Aliu’s clinical deficiencies were so great that the formulation of conditions was neither appropriate nor feasible, because there were no conditions that could adequately protect the public, given the current level of Dr Aliu’s knowledge and skill. 29. The Tribunal also found that it could not be confident that Dr Aliu would cooperate with or comply with any conditions because of the vehemence with which he rejected the findings of the Performance Assessment and his lack of insight into his need for remediation. Suspension 30. The Tribunal next considered whether imposing a period of suspension on Dr Aliu’s registration would be the appropriate and proportionate sanction in this case. The Tribunal had regard to paragraphs 94, 97(a), 97(f), 97(g) and 101 of the SG.

‘94 Suspension is also likely to be appropriate in a case of deficient performance or lack of knowledge of English in which the doctor currently poses a risk of harm to patients but where there is evidence that they have gained insight into the deficiencies and have the potential to remediate if prepared to undergo a rehabilitation or retraining programme.’ ‘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. … 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.’

‘101 The tribunal’s primary consideration should be public protection and the seriousness of the findings. Following any remediation, the time all parties


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may need to prepare for a review hearing if one is needed will also be a factor.’

31. The Tribunal had regard to its determination on impairment where it found that Dr Aliu had not remediated, had not provided evidence of CPD focused upon the concerns raised in the Performance Assessment (although it noted and accepted that he had continued with some appropriate CPD until May 2019) and had shown no insight. The Tribunal found that this is because Dr Aliu did not accept the findings of the Performance Assessment and did not acknowledge his deficient professional practice. 32. Accordingly, the Tribunal found that there was no reason to believe that Dr Aliu would remediate in the future as he had shown no insight throughout the regulatory proceedings and no indication of a willingness to remediate. The Tribunal did not find it appropriate to suspend Dr Aliu merely in the hope that he might develop insight in the future. The Tribunal does not doubt Dr Aliu when he says that he showed insight and a willingness to remediate between 2005 and 2010. Nevertheless, the Tribunal is satisfied that insight and a willingness to remediate are no longer present. 33. Therefore, the Tribunal concluded that although imposing an order of suspension on Dr Aliu’s registration would protect patients in the short term it would not be appropriate sanction because it would neither maintain public confidence nor uphold standards for the profession. Erasure 34. The Tribunal then went on to consider the sanction of erasure. It considered paragraph 101, set out above and also paragraph 109 of the SG:

‘109 Any of the following factors being present may indicate erasure is appropriate. …

j Persistent lack of insight into the seriousness of their actions or the consequences.’

35. The Tribunal found that the above paragraph applied to Dr Aliu’s proven deficient professional performance. The Tribunal was satisfied that Dr Aliu has not remediated or demonstrated the potential for remediation or retraining. The Tribunal found that this is because he lacks insight into the extent of his failings. Dr Aliu’s clinical deficiencies, as evidenced from his GMC Performance Assessment, were so serious and wide-ranging, and compounded by his lack of insight, that they would be very difficult to remediate. The Tribunal has already indicated above that it


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accepts the evidence that the necessary retraining would involve effectively a return to medical school. Without insight remediation is impossible. 36. The Tribunal noted that Dr Aliu still blames external factors for his failings. The Tribunal considered that this was further evidence of having no insight into the seriousness of his deficient professional performance which would put patients at risk. 37. The Tribunal found that Dr Aliu’s deficient professional performance taken together with his lack of insight and failure to remediate would undermine the public’s trust in the medical profession and was fundamentally incompatible with continued registration. Accordingly, the Tribunal concluded that erasure was the only means of protecting patients, maintaining public confidence in the profession and declaring and upholding proper standards and conduct. 38. The Tribunal therefore directs that Dr Aliu’s name be erased from the Medical Register. Determination on Immediate Order - 20/08/2020 1. Having determined to erase Dr Aliu’s name from the Medical Register, the Tribunal has considered, in accordance with Rule 17(2)(o) of the Rules, whether Dr Aliu’s registration should be subject to an immediate order.

Submissions

2. Mr Morgan submitted that, given the seriousness of Dr Aliu’s deficient professional performance, an immediate order of suspension should be imposed on Dr Aliu’s registration. 3. Mr Morgan referred to the SG, specifically paragraphs 172 and 173:

‘172 The tribunal may impose an immediate order if it determines that it is necessary to protect members of the public, or is otherwise in the public interest, or is in the best interests of the doctor. The interests of the doctor include avoiding putting them in a position where they may come under pressure from patients, and/or may repeat the misconduct, particularly where this may also put them at risk of committing a criminal offence. Tribunals should balance these factors against other interests of the doctor, which may be to return to work pending the appeal, and against the wider public interest, which may require an immediate order.’

‘173 An immediate order might be particularly appropriate in cases where the doctor poses a risk to patient safety. For example, where they have


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provided poor clinical care or abused a doctor’s special position of trust, or where immediate action must be taken to protect public confidence in the medical profession.’

4. Mr Morgan submitted that the Tribunal was entitled to impose an immediate order where the doctor poses a risk to patients or where immediate action is needed to protect public confidence in the medical profession. The Tribunal should consider the seriousness of the matter and whether it is appropriate for an immediate order to be imposed. He submitted that an immediate order of suspension should be put in place to protect public confidence in the medical profession. 5. Dr Aliu submitted that that he intends to appeal the Tribunal’s decision and stated that he disagreed with the Tribunal’s decision. He submitted that an immediate order made no difference to him because he had been suspended for three years. The Tribunal’s Determination

6. The Tribunal determined that given the serious nature of its findings, and for the reasons of public safety previously outlined, an immediate order of suspension is necessary in order to protect patients, maintain public confidence in the medical profession, and uphold proper professional standards. 7. This means that Dr Aliu's registration will be suspended from when notification is deemed to have been served upon him. The substantive direction, as already announced, will take effect 28 days from when written notice of this determination has been served upon Dr Aliu, unless an appeal is made in the interim. If an appeal is made, the immediate order will remain in force until the appeal has concluded. 8. The interim order currently imposed on Dr Aliu’s registration will be revoked when the immediate order takes effect. 9. That concludes this hearing. Confirmed Date 20 August 2020 Mr Andrew Lewis, Chair


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ANNEX A - 02/07/2019 Application for disclosure of evidence under Rule 34(1) Submissions 1. On the seventh day of the hearing, Dr Aliu made the following application. 2. Dr Aliu invited the Tribunal to order disclosure of the answer sheets that he had filled in when completing the knowledge test on the first day of his Performance Assessment. He submitted that he needed these documents to demonstrate that he had done better in the test than the marks allocated to him indicated. 3. Mr Morgan resisted this application. He reminded the Tribunal that disclosure had been ordered at and complied with shortly after the directions hearing on 16 April 2019 and Dr Aliu had raised no objections to the disclosure he received shortly after that hearing. 4. Nevertheless, Dr Aliu had requested further disclosure during the first week of the hearing. On 28 July 2019, further documents had been disclosed to him, some of which he had put before the Tribunal and used to cross-examine Ms C on 1 July (the sixth day of the hearing). 5. This was, he reminded the Tribunal, Dr Aliu’s third application for disclosure. He told the Tribunal that these documents were not in the possession of the GMC and it was not clear that the GMC could obtain them. 6. He submitted that, in any event, disclosure of the answer sheets was not necessary to enable Dr Aliu to have a fair hearing and the delay seeking to obtain them would cause risked seriously delaying the completion of the hearing in a way that was not in the interests of justice, even if the GMC could comply with an order for further disclosure Tribunal’s Decision

7. The Tribunal bore in mind its duty to ensure a fair hearing within a reasonable time. It bore in mind the following matters:

a. The Tribunal had already heard a significant body of evidence regarding the completion, marking and scoring of Dr Aliu’s answer sheets from the knowledge test at the Assessment.

b. The Tribunal had heard no evidence to suggest that anything had been wrong with the marking of Dr Aliu’s exam papers. The application for further disclosure was, in those circumstances, entirely speculative.


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c. Dr Aliu’s score in the knowledge test was not inconsistent with his performance in other aspects of the assessment.

d. The burden of proof rested on the GMC to show that the marks attributed by them to Dr Aliu derived from his answers and his answers had been accurately marked.

e. Disclosure of the answer sheets was likely to give rise to further enquiries and evidence to interpret the results.

f. Although it was not the primary consideration, the Tribunal noted that this was the first request for these documents, despite 2 previous applications for disclosure, with which the GMC had complied to Dr Aliu’s apparent satisfaction.

8. Accordingly, the Tribunal rejected this application and determined to refuse Dr Aliu’s application for disclosure of the Performance Assessment answer sheets under Rule 34(1). ANNEX B - 02/07/2019 Application to recall witnesses under Rule 34(1) Submissions 1. On the seventh day of the hearing, after the GMC had closed their case on the facts, Dr Aliu drew the Tribunal’s attention to documents that had been to disclosed to him by the GMC during the first week of the hearing. 2. These documents comprised (D7) the judgement sheets of Mr A and similar sheets completed by Mr B (D8). He also invited the Tribunal to read a short additional statement he had submitted to the Tribunal on the fifth day of the hearing, which was apparently to be read as part of his evidence. He found it difficult to explain to the Tribunal what he wanted them to find in those documents, save that it related to handwriting. 3. Mindful that the doctor was unrepresented the Tribunal took the time to read the documents again. It discovered two things which were concerning.

4. Firstly, the Tribunal discovered that a judgement sheet apparently written by Mr A was filed in Mr B’s folder. Secondly, it discovered that on three occasions it appeared that Mr A had copied out (it appeared more neatly) his judgement sheets from three of the OSCE stations.


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Tribunal’s Decision 5. The Tribunal was of the view that this was significant evidence in the light of the way Dr Aliu’s case had been put to Mr B and Mr A when they were cross examined. 6. Firstly, it had been suggested that Mr A was not an independent assessor but had been acting under the direction of Mr B. In this context, the presence of one of his mark sheets in Mr B’s file was of potential importance. 7. Secondly, it had been put to Mr A that he had not completed his judgement sheets in the way he described, at each OSCE station before beginning of the next. The presence of a number of sheets which may well not have been completed during the OSCE stations in the way Mr A described, required explanation. 8. The Tribunal heard submissions from Dr Aliu and Mr Morgan. The papers mentioned above were shown to Dr Aliu and he was asked if these were what was concerning him. He said it was. He invited the Tribunal to recall Mr B and Mr A, so that he could question them about the documents. Mr Morgan accepted that, in the circumstances there was no alternative but to recall the witnesses to explain these matters 9. Having heard further submissions, the Tribunal agreed that it would also recall Ms C, who had observed each OSCE station by a remote video link. The Tribunal also agreed that the GMC could call further evidence about how the documentation should be dealt with in cases such as this 10. Accordingly, the Tribunal ordered the recall of Mr A, Mr B and Ms C and agreed that the GMC could call the evidence of Mr D to deal with the way the documentation should have been handled. ANNEX C - 24/06/2019 Application by Dr Aliu to attend hearing by telephone link 1. On the first day of the hearing, Dr Aliu attended and applied to the Tribunal to be allowed to attend hearings by telephone link. 2. The basis for his application was that he did not have sufficient funds to either stay in Manchester or travel daily from his home in the north-east of England, because he had not been able to work for some time. 3. The Tribunal had regard of Rule 34(13) of the Rules which states:


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“13. A party may, at any time during a hearing, make an application to the Committee or Tribunal for the oral evidence of a witness to be given by means of a video link or a telephone link.”

4. The Tribunal also had regard to the guidance given to tribunals in the document entitled “use of video link, telephone evidence and special measures at medical practitioners tribunal hearings.” 5. The Tribunal heard submissions from Mr Morgan on behalf of the GMC and from Dr Aliu. 6. The Tribunal balanced the importance of ensuring that Dr Aliu, could take part in the hearing against the difficulties that can arise when the doctor gives evidence remotely, in particular when there are documents that need to be referred to. 7. The Tribunal agreed that it would allow Dr Aliu to follow proceedings by telephone link and question witnesses over the telephone link. The Tribunal decided it would revisit the question of Dr Aliu giving evidence by the telephone link if it became apparent he could not attend to give evidence in person when the time arrived. ANNEX D - 05/07/2019 GMC Application to admit witness evidence by telephone Submissions 1. On behalf of the GMC, Mr Morgan made an application under Rule 34(13) of the General Medical Council (‘GMC’) (Fitness to Practise Rules) 2004 as amended (‘the Rules’) for some of the evidence of Mr A, GMC Medical Assessor, to be heard by telephone link. 2. He made the application on the fourth day of the hearing (27 June 2019) after Mr A had attended in person and given his evidence in chief and been cross examined by Dr Aliu in front of the Tribunal. His application was that Mr A’s cross examination and any re-examination be completed over the telephone link. 3. The reason for his application was that Mr A had made himself available to attend the tribunal for the period that his evidence was expected to take. He had not expected to attend the following day and was unavailable because he had to attend to military duties.


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4. He reminded the Tribunal that Mr A had already provided evidence in person to the Tribunal and had made himself available when requested, however this application was unexpected and Mr A had returned to his prearranged professional duties. If he had to return to the tribunal in person, there would be a significant delay before he could return to give his evidence in person. 5. Mr Morgan submitted that the Tribunal and Dr Aliu had been afforded ample opportunity to assess the quality of his evidence and his integrity. 6. He submitted that it would be disproportionate to further delay the hearing to question Mr A on a few limited points and that it would be proportionate to allow him to complete his evidence by telephone. He submitted that there would be no injustice or unfairness to Dr Aliu if the Tribunal heard the last part of Mr A’s evidence by telephone. 7. Dr Aliu did not oppose the application, however he observed that the quality of evidence is always better when a witness attends proceedings in person and that this would be his preference. Tribunal’s Decision 8. The Tribunal had regard of Rule 34(13) of the Rules which states:

“13. A party may, at any time during a hearing, make an application to the Committee or Tribunal for the oral evidence of a witness to be given by means of a video link or a telephone link.”

9. The Tribunal noted that Mr A had already provided evidence in person and that it had already observed this witness and knew his demeanour. It recognised that the application was not opposed and requiring the witness to attend proceedings would result in further delay. 10. The Tribunal determined that there was no injustice to Dr Aliu to grant the application. It therefore determined to hear the remainder of Mr A’s evidence by telephone.

Documents

PUBLIC RECORD - MPTS...Jun 24, 2019 · • BTS National Safety Standards for Invasive Procedures; • Correspondence from Mr D of the GMC. The Tribunal’s Approach . ... Mr A and