PUBLIC RECORD - mpts-uk.org · GMC reference number: ... Tribunal Clerk: ... Patient A’s records and his failure to share the Trust exclusion letter with Barnsley Hospital on three

Record of Determinations –

Medical Practitioners Tribunal

MPT: Dr MALIK

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PUBLIC RECORD Dates: 05/03/2018 – 12/03/2018 Medical Practitioner’s name: Dr Aamir Iqbal MALIK

GMC reference number: 6095545

Primary medical qualification: MB BS 1989 University of Punjab (Pakistan)

Type of case Outcome on impairment New - Misconduct Impaired Summary of outcome Erasure Immediate order imposed

Tribunal:

Legally Qualified Chair Mr Charles Thomas

Lay Tribunal Member: Mr Sean Ell

Medical Tribunal Member: Mrs Anjali Ahluwalia

Tribunal Clerk: Ms Sarah Ryan

Attendance and Representation:

Medical Practitioner: Present and represented

Medical Practitioner’s Representative: Mr Alun Jones, Counsel, instructed by BLM

GMC Representative: Ms Catherine Cundy

Attendance of Press / Public The hearing was all heard in public. Determination on Facts - 08/03/2018 1. Dr Malik qualified in 1989 in Pakistan. He became a member of the Royal College of Obstetricians and Gynaecologists in 2000. At the time of the events Dr Malik was working as a Specialty Doctor in Obstetrics and Gynaecology and had worked in this role



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since January 2010. He was employed by the Mid-Yorkshire Hospitals NHS Trust (‘the Trust’) and on Friday 18 December 2015, he was the Registrar on-call in the Obstetrics and Gynaecology department at Pinderfields General Hospital (‘the hospital’).

2. Patient A was a 23 year old woman in her first pregnancy. She was admitted by ambulance to the hospital at around 22:30 on 18 December 2015, where she underwent a Cardiotocography (‘CTG’) to record the foetal heartbeat. At 02:15 on 19 December 2015, an in utero fetal death (IUD) was confirmed. Patient A delivered a stillborn female at 11:03 on 19 December 2015. 3. The allegation that has led to Dr Malik’s hearing can be summarised as failings in respect of his review of Patient A’s CTG on 19 December 2015. It is also alleged that, between 19 and 21 December 2015, Dr Malik retrospectively amended Patient A’s notes and failed to make it clear that the amendments had been made retrospectively. It is alleged that the retrospective entry contained information that Dr Malik knew to be untrue and that his actions in this regard were dishonest. 4. It is further alleged that Dr Malik worked at Barnsley Hospital on five dates between 8 January 2016 and 2 February 2016 and failed to share with them an exclusion letter from Mid Yorkshire Hospitals NHS Trust which he knew that he was required to share with any future employer. It is alleged that his actions in this regard were dishonest.

The Allegation and the Doctor’s Response

5. The Allegation made against Dr Malik is as follows:

1. At approximately 00:00 on 19 December 2015, you reviewed Patient A’s CTG (‘the CTG’) and you failed to:

a. interpret the CTG correctly; Admitted and found proved

b. recognise that the CTG was:

i. non-reassuring and/ or; Admitted and found proved

ii. difficult to interpret; Admitted and found proved

c. obtain a senior opinion on the CTG;

Admitted and found proved

d. ensure continuous monitoring of Patient A by CTG; Admitted and found proved



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e. perform a vaginal examination and artificial rupture of membranes. To be determined

2. Between 00:30 on 19 December 2015 and 12:00 on 21 December

2015 you retrospectively amended Patient A’s notes. Admitted and found proved

3. You failed to make it clear that you had made the amendments as set

out at paragraph 2 retrospectively. Admitted and found proved 4. You made a retrospective entry in Patient A’s notes to suggest that you

had advised CTG monitoring should recommence from 30 minutes after your review as set out at paragraph 1 above, which:

a. was untrue; To be determined

b. you knew to be untrue. To be determined

5. On the following dates you worked at Barnsley Hospital and failed to share with them an exclusion letter from Mid Yorkshire Hospitals NHS Trust which you were required to share with any future employer:

a. 8 January 2016; Admitted and found proved

b. 9 January 2016; Admitted and found proved

c. 10 January 2016; Admitted and found proved

d. 25 January 2016; Admitted and found proved

e. 2 February 2016. Admitted and found proved

6. You knew that you should have shared the exclusion letter as set out at paragraph 5 above with Barnsley hospital. Admitted and found proved in relation to paragraph 5(d) and 5(e).

7. Your actions as described at paragraphs 2 to 6 were dishonest. Admitted and found proved in relation to paragraph 5(d) and 5(e).

The Admitted Facts

6. At the outset of these proceedings, through his counsel, Mr Jones, Dr Malik made admissions to some paragraphs and sub-paragraphs 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



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17(2)(e) of the Rules, the Tribunal announced these paragraphs and sub-paragraphs of the Allegation as admitted and found proved.

The Facts to be Determined

7. In light of Dr Malik’s response to the Allegation made against him, the Tribunal is required to determine:

whether Dr Malik failed to perform a vaginal examination and artificial rupture of membranes (‘ARM’);

whether Dr Malik made a retrospective entry in Patient A’s notes which was untrue and known by him to be untrue;

whether Dr Malik knew on three dates that he should have shared the Trust exclusion letter with Barnsley Hospital; and

whether Dr Malik’s conduct, with respect to the retrospective entries on Patient A’s records and his failure to share the Trust exclusion letter with Barnsley Hospital on three dates, was dishonest.

Factual Witness Evidence

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

Mrs B, midwife at the hospital, in person; Mrs C, labour ward coordinator at the hospital, by telephone link; Dr D, Deputy Medical Director (Workforce & Professional Standards) for the

Trust, in person; and Dr E, GMC expert, in person.

9. The Tribunal also received evidence on behalf of the GMC in the form of witness statements from the following witnesses who were not called to give oral evidence:

Ms F, midwife at the hospital; Dr G, clinical director for CBU 3, and Consultant Obstetrician and

Gynaecologist, at Barnsley Hospital; and Dr H, Consultant Gynaecologist at Barnsley Hospital;

10. Dr Malik provided his own witness statement dated 10 February 2018 and also gave oral evidence at the hearing.

Expert Witness Evidence

11. The Tribunal received evidence from expert witness, Dr E, Consultant Obstetrician and Subspecialist in Fetal Medicine. Dr E was called as a witness by the GMC. Her evidence was in respect of whether the doctor failed to perform a vaginal



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examination and ARM and was also directed at assisting the Tribunal in understanding whether Dr Malik’s conduct in relation to paragraphs 1-4 of the Allegation fell below or seriously below the standard expected of a reasonably competent obstetrics and gynaecology speciality doctor. Dr E produced a report dated 16 July 2017 and also gave oral evidence at this hearing.

Documentary Evidence

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

Guidance and policy documents from The National Institute for Health and Care Excellence (‘NICE’) and the Trust;

Patient A’s hospital records and a photocopy of a medical record; Excerpts from the Trust investigation regarding the events of

19 December 2015; and The Exclusion letter from the Trust and Dr Malik’s email response.

The Tribunal’s Approach

13. In reaching its decision on facts, the Tribunal has borne in mind that the burden of proof rests on the GMC and it is for the GMC to prove the Allegation. Dr Malik 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.

14. It is alleged in paragraph 1(e) of the Allegation that there was a failure to act by Dr Malik. The Tribunal reminded itself that before any such paragraph could be found proved, it would first have to be satisfied that the GMC had demonstrated evidence that there was a duty to act in the way alleged.

15. The Tribunal reminded itself that when considering an allegation of dishonesty, it should have regard to the case of Ivey vs Genting Casinos UK Ltd [2017] UKSC 67 (‘Ivey’) in which the legal test for dishonesty is set out. The Tribunal should first ascertain (subjectively) the state of Dr Malik’s knowledge or belief as to the facts. It should then consider whether his conduct was dishonest by the objective standards of ordinary decent people.

The Tribunal’s Analysis of the Evidence and Findings

16. The Tribunal has considered each outstanding paragraph of the Allegation separately and has evaluated the evidence in order to make its findings on the facts.



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Paragraph 1(e)

17. The Tribunal had regard to the following remarks made by Dr E in her expert report:

“Dr Malik should have instigated conservative measures such as a change in maternal position and the administration of intravenous fluids to attempt to improve the CTG. Dr Malik could also have considered performing an ultrasound scan for fetal wellbeing. In the event of these factors not improving the CTG then Dr Malik should have performed an ARM [‘Artificial rupture of membranes’] to assess the liquor colour and get Patient A into labour.”

18. Dr Malik accepted that he did not perform a vaginal examination and ARM. He denied that there was a duty on him to do so as at the time of his review of Patient A’s CTG, he considered it to be normal and therefore these actions were not required. He stated that had he determined the CTG to be uninterpretable or non-reassuring, he would only have performed the vaginal examination and ARM if other conservative measures had failed to improve the CTG reading. 19. The Tribunal determined from the evidence that performing a vaginal examination and artificial rupture of membranes was one action that could be required in a sequence of actions. It would only be required after other actions had taken place. It therefore determined that a duty on Dr Malik could not be established. Accordingly, it found paragraph 1(e) not proved.

Paragraph 4

20. Dr Malik’s evidence is that he made the retrospective entry to reflect his change in Patient A’s management plan, namely re-starting the CTG after 30 minutes instead of his original plan of 2-3 hours. He gave evidence that this change in the plan was agreed between himself and the two midwives, when they jointly reviewed and discussed Patient A’s CTG at the nurses’ workstation. He stated that at the time of the joint conversation he had already noted his original management plan in Patient A’s records.

21. The evidence of Mrs B and Mrs C was that although a joint conversation took place between the three parties, this did not result in an agreed change in Patient A’s management plan. They stated that Dr Malik did not advise that CTG monitoring should recommence from 30 minutes after his review of Patient A. Mrs B stated that Dr Malik’s response to their concerns regarding Patient A’s CTG was “blasé” and that he used words to the effect of:

“What do you want me to do? Section her? If we can sit on a CTG like that 28 week one then this is normal and we can check again in a few hours”



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22. The evidence of Mrs B and Mrs C was that Dr Malik had not made an entry in Patient A’s notes at the time of the joint conversation. Mrs B’s evidence was that Dr Malik walked away from the conversation and that she had to bring the notes to him in order for him to make an entry. She was specific that she gave him the notes in the seminar room near to the nurses’ workstation for him to make an entry.

23. The Tribunal accepted the evidence of Mrs B and Mrs C. Their recollections on this issue were very specific. The Tribunal could find no reason for them to fabricate their evidence and considered it highly unlikely that they would both be mistaken on such a point of detail.

24. The Tribunal considered therefore that Dr Malik’s original note reflected the fact that his management plan after the conversation at the nurses’ workstation remained the same: that Patient A should go the ante-natal ward and that the CTG should be recommenced in 2-3 hours. It follows therefore that the retrospective note did not reflect a change in management plan by Dr Malik. The Tribunal accepted the evidence of Mrs C that she decided independently to auscultate the fetal heart after reading Dr Malik’s note.

25. Additionally, the Tribunal considered the nature of the retrospective entry and the context in which it was made. It determined that the nature of the amendment concealed that it was a retrospective entry – both by the omission of the term ‘retrospective entry’ and by its nature, adding a ‘1/’ in front of the ‘2-3’ , which would give the impression that it was an original entry. It accepted the evidence of Dr E that ‘1/2-3 hours’ was not a clinically recognised time period. Furthermore, Dr Malik made the retrospective entry within 24 hours of an IUD, which would undoubtedly lead to a Trust investigation. The Tribunal determined that, on the balance of probabilities, Dr Malik made the retrospective entry in order to deflect potential criticism of his conduct on 19 December 2015.

26. Having regard to all of the above, the Tribunal determined on the balance of probabilities, the retrospective entry made by Dr Malik was untrue and known by him to be untrue. It therefore found paragraph 4(a) and 4(b) proved.

Paragraph 7 in relation to paragraphs 2-4

27. Dr Malik has admitted that he made the following retrospective amendments in Patient A’s notes:

The addition of “by midwife” after “difficult to monitor”; The addition of “maternal pulse 78bpm”; The addition of “/very short fleeting” after“decele-nil” ; and The amendment of “repeat CTG after 2-3 hours” to “ 1/2-3 hours as

according to midwife baby moving a lot”.



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28. Dr Malik has admitted that he failed to make it clear that he had made the above amendments. The Tribunal has found it proved that the fourth entry was untrue and known by Dr Malik to be untrue.

29. The Tribunal determined that a doctor of Dr Malik’s seniority would be fully aware that any retrospective entries made in a patient’s records should be noted as such. The only amendments made were ones which could give the impression that they were part of the original record. Dr Malik did not amend the entry relating to Patient A going to the ante-natal ward as that could only be done by amending the notes in a way that would make it obvious they had been amended. The Tribunal adopted the same determination for paragraphs 2 and 3 of the Allegation that it had reached in respect to paragraph 4. This was that Dr Malik, on the balance of probabilities, made the retrospective entries to deflect potential criticism of his conduct.

30. The Tribunal determined that, had Mrs C not made a photocopy of the original record made by Dr Malik on 19 December 2015, the fact of the retrospective amendments may never have come to light. The Tribunal determined that Dr Malik’s intention was that no one should realise that any of the amendments were retrospective. The Tribunal therefore determined that Dr Malik knew the amendments were either misleading or untrue. It further determined that ordinary decent people would consider a doctor who acted in such a manner to be dishonest.

31. Having had regard to the above, the Tribunal determined that Dr Malik’s conduct was dishonest. It therefore found paragraph 7 in relation to paragraphs 2-4 of the Allegation proved.

Paragraph 6

32. Dr Malik has admitted that he knew he should have shared the Trust exclusion letter, which he was required to share with any future employer, with Barnsley Hospital when he undertook locum shifts there on 25 January 2016 and 2 February 2016. He has denied this charge in respect of three dates between 8-10 January 2016.

33. The Tribunal had regard to the exclusion letter dated 22 December 2015 and signed by Dr D, the cover email from Dr D of the same date (to which the exclusion letter was attached) and Dr Malik’s email response dated 23 December 2015. In this response email, Dr Malik stated:

“I have read your mail in detail”

and:

“I also state that I agree to abide by the rules you have mentioned in letter [sic].”



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34. The Tribunal noted that Dr Malik’s email was sent at 16:33 the following day and was therefore not an immediate response to receiving it. On the face of the email, he accepted that he had read it in detail. His agreement to abide by the rules appeared to be a specific response to a request to do so towards the end of the letter. The email referred to abiding by the rules apart from not entering the hospital. The only other significant rule stipulated was that he should show the letter to any other employer. The Tribunal therefore determined, notwithstanding Dr Malik’s evidence that he was very distressed when he received the letter, that he had read the letter in detail. He therefore knew that when he undertook work at Barnsley Hospital between 8-10 January 2016, he should have shared the exclusion letter.

35. Having had regard to the above, the Tribunal found paragraph 6 of the Allegation in relation to paragraph 5(a)-5(c) proved.

Paragraph 7 in relation to paragraphs 5(a) – 5(c) and paragraph 6

36. The Tribunal has found it proved that Dr Malik knew that when he undertook work at Barnsley Hospital between 8-10 January 2016 that he should have shared the exclusion letter. It further noted Dr Malik’s evidence that, even when he was provided with a second copy of the exclusion letter, he failed to share it with Barnsley Hospital out of embarrassment and concern over the impact on his reputation. Dr Malik has admitted his failure to share the letter on 25 January 2016 and 2 February 2016 was dishonest.

37. Dr Malik has accepted that his subsequent failure was dishonest. The Tribunal has concluded that his earlier failure to disclose a letter that he knew he should disclose was similarly motivated by embarrassment, concern over the impact to his reputation and the potential impact on his income. The Tribunal determined that a doctor who knowingly failed to share required information with an employer would be considered dishonest by the standards of ordinary decent people.

38. Having had regard to the above, the Tribunal determined that Dr Malik’s conduct was dishonest. It therefore found paragraph 7 in relation to paragraphs 5(a)-5(c) and paragraph 6 of the Allegation proved.

The Tribunal’s Overall Determination on the Facts

39. The Tribunal has determined the facts as follows:

1. At approximately 00:00 on 19 December 2015, you reviewed Patient A’s CTG (‘the CTG’) and you failed to:

a. interpret the CTG correctly; Admitted and found proved

b. recognise that the CTG was:



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i. non-reassuring and/ or; Admitted and found proved

ii. difficult to interpret; Admitted and found proved

c. obtain a senior opinion on the CTG;

Admitted and found proved

d. ensure continuous monitoring of Patient A by CTG; Admitted and found proved

e. perform a vaginal examination and artificial rupture of

membranes. Found not proved

2. Between 00:30 on 19 December 2015 and 12:00 on 21 December 2015 you retrospectively amended Patient A’s notes. Admitted and found proved

3. You failed to make it clear that you had made the amendments as set

out at paragraph 2 retrospectively. Admitted and found proved 4. You made a retrospective entry in Patient A’s notes to suggest that you

had advised CTG monitoring should recommence from 30 minutes after your review as set out at paragraph 1 above, which:

a. was untrue; Found proved

b. you knew to be untrue. Found proved

5. On the following dates you worked at Barnsley Hospital and failed to share with them an exclusion letter from Mid Yorkshire Hospitals NHS Trust which you were required to share with any future employer:

a. 8 January 2016; Admitted and found proved

b. 9 January 2016; Admitted and found proved

c. 10 January 2016; Admitted and found proved

d. 25 January 2016; Admitted and found proved

e. 2 February 2016. Admitted and found proved

6. You knew that you should have shared the exclusion letter as set out at paragraph 5 above with Barnsley hospital. Admitted and found proved in relation to paragraph 5(d) and 5(e)



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Found proved in relation to paragraph 5(a) – 5(c)

7. Your actions as described at paragraphs 2 to 6 were dishonest. Admitted and found proved in relation to paragraph 5(d) and 5(e) Found proved in relation to paragraphs 2 – 5(c) and paragraph 6

Determination on Impairment - 09/03/2018 1. The Tribunal now has to decide in accordance with Rule 17(2)(k) of the Rules whether, on the basis of the facts which it has found proved as set out before, Dr Malik’s fitness to practise is impaired by reason of misconduct. 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 received and read a number of testimonials from Dr Malik’s colleagues at the Trust, from his locum agency in Ireland and colleagues from various hospitals in Ireland.

Submissions

Submissions on behalf of the GMC

3. On behalf of the GMC, Ms Cundy submitted that the facts found proved amounted to misconduct. Throughout the course of her submissions, Ms Cundy referred the Tribunal to relevant principles in Good Medical Practice (2013 edition) (‘GMP’). She submitted that Dr Malik’s clinical failures were a discrete area, but were intimately linked to and compounded by his subsequent dishonesty. She submitted that Dr Malik’s dishonesty impeded a proper and timely assessment by the Trust into what went wrong with respect to Patient A’s care. She further submitted that Dr Malik’s dishonesty with respect to the exclusion letter prevented Barnsley Hospital from assessing potential risk to patients.

4. Ms Cundy submitted that Dr Malik’s fitness to practise was impaired by reason of his misconduct. She submitted that there has been no clear explanation as to why Dr Malik reached the view that Patient A’s CTG was normal and could be discontinued. She submitted that Dr Malik’s subsequent refreshing of his clinical knowledge doesn’t assist with the reasons behind these previous failures.

5. Ms Cundy submitted that Dr Malik’s failings and dishonesty with respect to Patient A, compounded by later events at Barnsley Hospital indicates that he poses a risk to patient safety and cannot be relied upon to act with integrity. She submitted that this cannot fail but to bring the medical profession into disrepute.



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6. Ms Cundy submitted that a finding of impairment was required in order for the Tribunal to fulfil its statutory objective. She further submitted that public confidence in the profession would be undermined were a finding of impairment not made in this case.

Submissions of behalf of Dr Malik

7. On behalf of Dr Malik, Mr Jones submitted that Dr Malik accepted that the Tribunal would make findings of misconduct and impairment, given its factual findings of dishonesty.

8. Mr Jones referred the Tribunal to the case of Calhaem -v- the General Medical Council [2007] EWHC 2606 (Admin) which, in summary, states that a single negligent act or omission is less likely to cross the threshold of misconduct. He submitted that Dr Malik was the only registrar covering Obstetrics & Gynaecology in the hospital on the night of 18/19 December 2015 and that his failings occurred at midnight during a busy shift. He submitted that there was no allegation that Dr Malik’s conduct contributed to the IUD and that the seriousness of the case should not be increased by the tragic outcome for Patient A.

9. Mr Jones submitted that Dr Malik has accepted his shortcomings and undertaken significant remediation, and has actively engaged with GMC proceedings. He submitted that Dr Malik’s clinical failings are capable of remedy and that he is currently working without any concerns as to his practice. He submitted that Dr Malik’s lack of explanation as to his interpretation of Patient A’s CTG does not mean that there is a high risk of repetition of a similar occurrence. He submitted that Dr Malik has made a number of admissions and that his denial of dishonesty does not equate to a lack of insight.

The Relevant Legal Principles

10. The Tribunal reminded itself that at this stage of the proceedings, there is no burden or standard of proof and that the decision of impairment is a matter for the Tribunal’s judgment alone.

11. In approaching the decision, the Tribunal was mindful of the two stage process to be adopted: first whether the facts as found proved amounted to serious misconduct, and then whether the finding of any misconduct which was serious could lead to a finding of impairment.

12. The Tribunal must determine whether Dr Malik’s fitness to practise is impaired today, taking into account Dr Malik’s 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.

13. Throughout its deliberations, the Tribunal has borne in mind its statutory overarching objective which is:



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to protect and promote the health, safety and wellbeing of the public; to promote and maintain public confidence in the medical profession; and to promote and maintain proper professional standards and conduct for

members of the profession.

The Tribunal’s Determination on Impairment

Misconduct – clinical failings

14. Dr E stated in her expert report for the GMC that Dr Malik’s failure to interpret the CTG correctly and failure to recognise that the CTG was non-reassuring and/ or difficult to interpret fell below, but not seriously below the standard expected of a reasonably competent specialty doctor in obstetrics and gynaecology. She reached this conclusion on the basis that:

“…not all CTGs can be interpreted especially when a patient is difficult to monitor as in this case, but where there is doubt regarding the CTG it is best practice to perform continuous monitoring to gain a more complete picture.”

15. In her oral evidence, Dr E repeated the difficulties that can be faced when interpreting CTGs and that this was the case for a number of professionals. The Tribunal was satisfied on this basis that Dr Malik’s failings with respect to paragraph 1(a) and 1(b) of the Allegation did not fall so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct.

16. Dr E stated that Dr Malik’s failure to obtain a senior opinion on the CTG and failure to ensure continuous monitoring of Patient A by CTG fell seriously below the standard expected of a reasonably competent specialty doctor in obstetrics and gynaecology. She referred to NICE guidance which states a senior opinion must be sought where there is a disagreement between professionals on the interpretation of a CTG and subsequent patient management plan. She further stated:

“In a patient with a non-reassuring CTG at term further assessment is required. Patient A should have been continuously monitored.”

17. The Tribunal has found that a joint conversation took place between Dr Malik and Mrs B and Mrs C which, on the balance of probabilities, did not result in an agreed interpretation of Patient A’s CTG. Both Mrs B and Mrs C categorised Patient A’s CTG as ‘uninterpretable’ as opposed to ‘non-reassuring’. Dr Malik’s evidence is that he considered the CTG to be “not satisfactory but normal” and that the CTG could be discontinued and recommenced at a later time. 18. There is no evidence that these differing opinions were considered so serious that either party deemed it necessary to seek a senior consultant opinion. It would



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have been open to Mrs C to do so but she did not. Nor did she consider it necessary to make a record of the conversation and the differences of opinion between her and Dr Malik. Her focus at the end of the conversation was on getting Dr Malik to record his opinion and management plan, rather than getting him to change it. The Tribunal also took into account evidence from Mrs C that her decision to auscultate the fetal heart occurred after she had read Dr Malik’s note, not immediately after the joint conversation took place. 19. The Tribunal therefore determined that, although opposing views were expressed by the three parties on the interpretation of Patient A’s CTG, this did not rise to the level where a senior consultant opinion was deemed necessary by them. Dr Malik’s failure to seek a senior opinion on the CTG and ensure continuous monitoring of Patient A by CTG occurred in the context of his view that Patient A’s CTG did not require immediate action. The Tribunal determined that these were single negligent acts which were less likely to cross the threshold of misconduct. Dr Malik’s failures were not “grave” – it was an isolated event relating to one patient, in the context of a busy shift and his opinion that Patient A’s CTG was normal. 20. Having regard to the above, the Tribunal determined that Dr Malik’s failings with respect to paragraph 1(c) and 1(d) of the Allegation did not fall so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct. Misconduct - The retrospective amendments and dishonesty

21. The Tribunal determined that Dr Malik’s conduct with respect to paragraphs 2-4 and paragraph 7 of the Allegation marked a clear departure from the principles set out in the following paragraphs of GMP:

“19. Documents you make (including clinical records) to formally record your work must be clear, accurate and legible. You should make records at the same time as the events you are recording or as soon as possible afterwards.”

“21. Clinical records should include:

a. relevant clinical findings

b. the decisions made and actions agreed, and who is making the decisions and agreeing the actions

[…]

e. who is making the record and when.”

“55. You must be open and honest with patients if things go wrong…”



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“65. You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession.”

“68. You must be honest and trustworthy in all your communication with patients and colleagues. This means you must make clear the limits of your knowledge and make reasonable checks to make sure any information you give is accurate.”

“71. You must be honest and trustworthy when writing reports, and when completing or signing forms, reports and other documents. You must make sure that any documents you write or sign are not false or misleading.

a. You must take reasonable steps to check the information is correct.

b. You must not deliberately leave out relevant information.”

“73. You must cooperate with formal inquiries and complaints procedures and must offer all relevant information while following the guidance in Confidentiality.”

22. Dr Malik made retrospective entries, one of which was untrue, in Patient A’s notes and disguised them in a dishonest fashion, in order to deflect criticism from himself, in the context of a likely Trust investigation into a serious incident. The Tribunal determined that fellow members of the profession would regard this element of Dr Malik’s conduct as deplorable. Accordingly it has concluded that Dr Malik’s conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to misconduct.

23. The Tribunal went on to consider whether, as a result of that misconduct, Dr Malik’s fitness to practise was currently impaired.

Impairment - the retrospective amendments and dishonesty

24. The Tribunal determined that the retrospective entries were a dishonest representation of the decisions reached in respect of Patient A’s management plan and therefore had the potential to impact the Trust investigation. It determined that this conduct had breached a fundamental tenet of the medical profession, brought the profession into disrepute and meant the doctor’s integrity could not be relied upon. It took into account Dr Malik’s acceptance that a finding of impairment was likely to be reached given the Tribunal’s factual findings.

25. The Tribunal has taken into account that Dr Malik has expressed remorse and an apology in both his witness statement and oral evidence to this Tribunal. However, this relates to the outcome for Patient A and the effects on himself and his family rather than the dishonest conduct with respect to the retrospective entries.

26. The Tribunal has taken into account evidence of Dr Malik’s CPD and steps taken by him to improve his record keeping. However, the Tribunal could attach little



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weight to this given the relationship between the retrospective entries and Dr Malik’s dishonesty. There is no evidence of reflection on his dishonest conduct in writing the retrospective notes in the way that he did. It also bore in mind that dishonesty, by its very nature is difficult to remediate.

27. Having regard to the above, the Tribunal determined that it was necessary in order for it to fulfil its statutory objective to make a finding of impairment in this case.

Misconduct - the exclusion letter and dishonesty

28. The Tribunal determined that Dr Malik’s conduct with respect to paragraphs 5-7 marked a clear departure from the principle set out in paragraph 76 of GMP:

“76. If you are suspended by an organisation from a medical post, or have restrictions placed on your practice, you must, without delay, inform any other organisations you carry out medical work for and any patients you see independently.”

29. The seriousness of the Tribunal’s findings are aggravated by the fact of Dr Malik’s continued dishonesty even when reminded of his obligations set out in the exclusion letter, which he received on 20 January 2016. The Tribunal determined that fellow members of the profession would regard this element of Dr Malik’s conduct as deplorable. Accordingly it has concluded that Dr Malik’s conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct.

Impairment - the exclusion letter and dishonesty

30. The Tribunal determined that Dr Malik’s dishonesty in concealing the Trust exclusion from Barnsley Hospital, had the potential to put patients at risk of harm, as it prevented Barnsley Hospital from carrying out an informed assessment of any potential risk. It determined that this conduct also breached a fundamental tenet of the profession, brought the profession into disrepute and meant that Dr Malik’s integrity could not be relied upon.

31. The Tribunal has therefore determined that Dr Malik’s fitness to practice is impaired by reason of misconduct. It determined that this conduct had breached a fundamental tenet of the medical profession and brought that profession into disrepute. It took into account Dr Malik’s acceptance that a finding of impairment was likely to be reached given the Tribunal’s factual findings.

32. The Tribunal determined that the CPD evidence adduced by Dr Malik was insufficient to demonstrate an appropriate level of insight and remediation. Dishonesty was only partially admitted by Dr Malik in respect of two dates, and the evidence adduced by him addresses his clinical deficiencies. The Tribunal accepts that Dr Malik



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has made considerable efforts to remediate his failings in respect of interpretation of CTGs. However, it was concerned by Dr Malik’s evidence that he did not share the exclusion letter with Barnsley Hospital out of embarrassment and concern over the potential impact on his career. In the Tribunal’s view, this demonstrated a doctor who put his own interests above patient safety and integrity with his employers.

33. Having regard to the above, the Tribunal determined that it was necessary in order for it fulfil its statutory objective to make a finding of impairment in this case.

34. The Tribunal has therefore determined that Dr Malik’s fitness to practice is impaired by reason of his misconduct.

Determination on Sanction - 12/03/2018 1. Having determined that Dr Malik’s fitness to practise is impaired by reason of his misconduct, the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction, if any, to impose.

Submissions

Submissions on behalf of the GMC

2. On behalf of the GMC, Ms Cundy submitted that, given the seriousness of the Tribunal’s findings, the only appropriate and proportionate sanction in this case is one of erasure. In the course of her submissions, Ms Cundy referred the Tribunal to relevant paragraphs in the ‘Sanctions Guidance’ (February 2018 edition).

3. Ms Cundy submitted that although Dr Malik accepted his clinical failings and the findings of this Tribunal, there has been little, if any, evidence of his insight by virtue of his denial of dishonest conduct. She submitted that health care professionals have a duty of candour and that Dr Malik failed in this duty by retrospectively amending Patient A’s record to deflect criticism from himself and by maintaining his dishonesty up to the present day. She referred the Tribunal to the guidance document ‘Openness and honesty when things go wrong: the professional duty of candour’ . She submitted that clinical errors happen but that patients, employers and regulators need to be able to trust doctors in order to understand what went wrong.

4. Ms Cundy submitted that Dr Malik’s dishonesty was persistent, repeated, and covered up. She submitted that it was committed in order to protect his own interests and intimately linked to his practice as a doctor, therefore it was particularly damaging to both Dr Malik’s own reputation and the reputation of the medical profession. Ms Cundy concluded that Dr Malik has shown that his integrity cannot be relied upon and that he should be removed from the medical register in order to protect the public.



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Submissions on behalf of Dr Malik

5. On behalf of Dr Malik, Mr Jones submitted that it would be proportionate for the Tribunal to suspend Dr Malik’s registration for the maximum period of 12 months and direct a review. He submitted that it would be disproportionate to erase Dr Malik’s name from the medical register. He submitted that maintaining public confidence in the medical profession does not equate to imposing a sanction of erasure and that there was a public interest in allowing a caring doctor to return to practice in time.

6. Mr Jones submitted that there are a number of mitigating factors in this case. He submitted that Dr Malik has made a number of admissions at the outset of this hearing, has accepted the findings of this Tribunal and has remained engaged with proceedings. He submitted that Dr Malik has not been the subject of any other regulatory proceedings or workplace disciplinary findings. He submitted that the matters which have led to this hearing took place over two years ago and against a backdrop of a near 30-year career in medicine.

7. Mr Jones submitted that Dr Malik has made efforts to remediate his clinical failings and that it would be possible for him to demonstrate insight and remediation of his dishonest conduct to a reviewing Tribunal. He submitted that Dr Malik has apologised to Dr D, Barnsley Hospital, and his locum agency with respect to the Barnsley matters and apologises to this Tribunal. He submitted that there is no evidence of a risk of repetition of Dr Malik’s misconduct and no evidence that his dishonesty resulted in actual patient harm. Mr Jones asked the Tribunal to take into account the financial hardships already faced by Dr Malik and his family as a result of these proceedings and those which would be faced by them should Dr Malik’s name be erased from the medical register.

The Tribunal’s Determination on Sanction

8. The decision as to the appropriate sanction, if any, is a matter for this Tribunal exercising its own judgement. In reaching its decision, the Tribunal has taken account of the Sanctions Guidance and the statutory over-arching objective, which includes protecting and promoting the health, safety and wellbeing of the public, promoting and maintaining public confidence in the medical profession, and promoting and maintaining proper professional standards and conduct for the members of the profession. The Tribunal recognises that the purpose of a sanction is not to be punitive, although it may have a punitive effect.

9. Throughout its deliberations, the Tribunal has applied the principle of proportionality, balancing Dr Malik’s interests with the public interest. It reminded itself that it should only impose the minimum sanction necessary to achieve the over-arching objective. In deciding what sanction, if any, to impose the Tribunal considered each of the sanctions available, starting with the least restrictive. It also considered and balanced the mitigating and aggravating factors in this case.



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Mitigating and aggravating factors

10. In mitigation, the Tribunal took into account Mr Jones’ submissions. It noted the positive testimonials from Dr Malik’s colleagues at the Trust, at various hospitals and his locum agency in Ireland. The Tribunal also bore in mind the personal circumstances of Dr Malik, as outlined by Mr Jones.

11. The Tribunal balanced these mitigating factors against what it determined to be aggravating factors. Dr Malik engaged in repeated and persistent dishonest conduct. Further, there has been insufficient evidence of his insight into his misconduct which would satisfy this Tribunal that the risk of its repetition was low.

No Action 12. The Tribunal first considered whether to conclude the case by taking no action. Taking no action following a finding of impaired fitness to practise would only apply in exceptional circumstances. The Tribunal determined that given its findings there are no exceptional circumstances in this case and that it would not be sufficient, proportionate, nor in the public interest to conclude this case by taking no action. Conditions

13. The Tribunal next considered whether to impose conditions on Dr Malik’s registration. In so doing, it bore in mind that any conditions imposed would need to be appropriate, proportionate, workable, and measurable. 14. In the light of its findings, the Tribunal determined that it would not be possible to formulate a set of appropriate or workable conditions which could adequately address Dr Malik’s dishonest conduct, nor would it be a sufficient, appropriate, or proportionate sanction to satisfy the public interest. The Tribunal took into account Mr Jones’ submission that the only relevant sanctions to consider in this case were those of suspension and erasure. Suspension

15. The Tribunal next considered whether it would be appropriate and proportionate to suspend Dr Malik’s registration. The Tribunal acknowledged that a sanction of suspension does have a deterrent effect and can be used to send a signal to Dr Malik, the profession, and the public about what is regarded as behaviour unbefitting of a registered doctor. It also acknowledged that suspension is an appropriate response to misconduct which is sufficiently serious that action is required in order to protect members of the public and maintain public confidence in the profession, but falls short of being fundamentally incompatible with continued registration.



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16. Dr Malik’s dishonesty at the Trust took place in the context of a likely investigation into a serious incident. The dishonesty reflected a breach of his duty of candour with fellow colleagues and employers. The retrospective entries made by him risked the impediment of the Trust investigation and the integrity of his midwife colleagues. The entries were a deliberate attempt to deflect any potential criticism from himself. His dishonesty was repeated in respect of undertaking locums at Barnsley Hospital without revealing the Trust exclusion letter to them, even after he had been sent the exclusion letter for a second time on 20 January 2016. The result of this was that Barnsley Hospital could not properly assess the potential risk posed by him to patients and his profession. 17. The Tribunal determined that Dr Malik’s dishonesty was repeated, persistent and carried out in order to protect his own interests. It determined that this serious misconduct could not be addressed by a period of suspension, nor could the Tribunal fulfil its statutory overarching objective by imposing such a sanction. Erasure

18. Having determined that imposing conditions on or suspending Dr Malik’s registration would not address the gravity of its findings, the Tribunal determined to erase his name from the medical register. It had regard to paragraphs 108 and 109(a) and (h) of the Sanctions Guidance, which state:

“108 Erasure may be appropriate even where the doctor does not present a risk to patient safety, but where this action is necessary to maintain public confidence in the profession. For example, if a doctor has shown a blatant disregard for the safeguards designed to protect members of the public and maintain high standards within the profession that is incompatible with continued registration as a doctor.” “109 Any of the following factors being present may indicate erasure is appropriate (this list is not exhaustive).

a A particularly serious departure from the principles set out in Good medical practice where the behaviour is fundamentally incompatible with being a doctor. […] h Dishonesty, especially where persistent and/or covered up… […]”



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19. Given its findings with respect to the retrospective entries and failure to disclose the exclusion letter, the Tribunal determined that these paragraphs were relevant to the circumstances of this case. 20. The Tribunal also reminded itself of its findings in its determination on Impairment, namely that Dr Malik’s behaviour constituted a clear departure from and blatant disregard for the principles set out in Good Medical Practice. 21. The Tribunal determined that Dr Malik repeatedly put his own interests ahead of his obligations to patients and the profession when he perceived that there was a threat to his own interests. In the absence of evidence of any remediation and insight, the Tribunal considered that there was a risk of repetition if similar circumstances occurred again. 22. Taking into account all of the above, the Tribunal determined that Dr Malik’s misconduct was fundamentally incompatible with continued registration. It therefore determined to erase his name from the medical register in order to protect the health, safety, and wellbeing of the public, maintain public confidence in the profession, and declare and uphold proper standards of conduct and behaviour. The Tribunal accepted that this sanction will have an impact upon Dr Malik both professionally and financially. However, the public interest outweighs his own interests in the specific circumstances of this case. 23. The effect of this direction is that, unless Dr Malik exercises his right of appeal, this decision will take effect 28 days from when written notice of this determination is deemed to have been served upon him. A note explaining his right of appeal will be supplied to him. Determination on Immediate Order - 12/03/2018 1. Having determined that Dr Malik’s name should be erased from the medical register, the Tribunal has considered, in accordance with Rule 17(2)(o) of the Rules, whether his registration should be subject to an immediate order.

Submissions

2. On behalf of the GMC, Ms Cundy submitted that it was necessary in order to protect the public and in the public interest to impose an immediate order of suspension. She submitted that it would be inappropriate, given the Tribunal’s findings and its decision on the substantive sanction, to allow Dr Malik to practise unrestricted during the appeal period. She submitted that Dr Malik is currently working in Ireland, which has its own medical regulator, and is not subject to any interim order.



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3. On behalf of Dr Malik, Mr Jones did not make an opposing submission. However, he advised the Tribunal that whilst Dr Malik is on the medical register, he does not have a licence and therefore cannot not practise in any event.

The Tribunal’s Determination

4. In reaching its decision, the Tribunal had regard to paragraph 172 of the Sanctions Guidance, which states:

“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...”

5. The Tribunal determined that, given the seriousness of its findings, its determination to erase Dr Malik’s name from the medical register and its concerns regarding the risk of Dr Malik repeating his misconduct, it was necessary in order to protect the public and in the public interest to impose an immediate order of suspension.

6. This means that Dr Malik’s registration will be suspended from today. The substantive direction, as already announced, will take effect 28 days from today, 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.

7. There is no interim order to revoke.

8. That concludes this case.

Confirmed Date 12 March 2018 Mr Charles Thomas, Chair