Dr P Leigh - Professional Member
Mrs VEM Barducci - Member
DR AZHIR MANZUR SARFRAZ
(REGISTRATION NUMBER 4069933)
Dr Azhir Manzur Sarfraz (“the appellant”) appeals against the decision of the Billericay, Brentwood and Wickford Primary Care Trust (“the PCT”) of 10 February 2004 refusing his application for inclusion in its Supplementary Medical List under section 43D(8) of the National Health Service Act 1977 (as amended by section 25 of the Health and Social Care Act 2001) (“the Act”) and Regulation 6(1) of the National Health Service (General Medical Services Supplementary List) Regulations 2001, S.I. 2001 No. 3740. The decision complained of and the appeal against it were made before the revocation of those Regulations and their replacement by the National Health Service (Performers Lists) Regulations 2004, S.I. 2004 No. 585 which came into force on 1 April 2004.
The decision to refuse the appellant’s application was made after a complex procedural history the important elements of which it is necessary to summarise.
(i) the Appellant attended Miss A at her home on an out of hours visit (admitted);
(ii) Miss A’s mother complained to the Appellant of pains in Miss A’s legs and of her having difficulty in walking;
(iii) the Appellant carried out a full physical examination of Miss A in the presence of her mother (admitted);
(iv) after her mother had left the room the Appellant carried out an examination of Miss A during which he touched her vagina (denied); and
(v) the Appellant’s actions in this regard were inappropriate, indecent and an abuse of his professional position.
PCC further found it proved that on 13 October 2001:
(i) the Appellant attended the home of Miss B in order to carry out a consultation with her daughter (admitted);
(ii) after examining Miss B’s daughter the Appellant discussed slimming medication with Miss B (admitted);
(iii) during the course of the conversation the Appellant touched Miss B’s breast and thigh; and the Appellant’s actions in this regard were inappropriate, indecent and an abuse of his professional position (denied).
drafted and submitted to the PCC a written document referred in the PCC
proceedings as D1A. The document comprising nine paragraphs was
unsigned and undated and entitled “Submissions”. The document assumed
such key importance in this appeal that it is necessary to reproduce it in full:
1. It is with a very real sense of shame that I face this Committee Hearing today. The Committee is well aware of the allegations that led to me being here – allegations which for the most part have been accepted by the Committee as fair and accurate.
2. The allegations have been extremely serious – and have gone to the heart of the doctor/patient relationship – namely that of trust. The allegations have been in respect of two young females – one female being only 14 years of age. And it was found proven that I had abused the trust placed in me as a doctor in their own homes – places where one normally expects to feel safe and not threatened by any danger.
3. I look back at what has happened and as I say I am filled with sorrow for the very obvious emotional upset that I have undoubtedly caused those 2 ladies and their families. I must also say, that I am full of shame for the disgrace I have brought upon my own family and the status and standing of medical practitioners generally.
4. As the Committee may well be aware, my father is a General Practitioner and indeed I joined his practice once I had qualified. As I was growing up, I was well aware of the trust and respect that the public have for doctors and of the vital importance behaving in such a way to deserve that trust and respect. My father set me an exemplary standard and I recognise and accept that I have fallen short of those standards. I fully appreciate and am grateful for the fact that the Committee kindly exercised its discretion in my favour and did not strike me from the register.
5. Again, as the Committee is aware, this is the first time that I have appeared before it to answer allegations of misconduct. Although the past 12 months have been very difficult for my wife, my parents and the staff of my practice, we have been encouraged by the expressions of support from patients, staff and professional colleagues.
6. I took very careful note of the comments of the Committee at the previous hearing. In the past 12 months, I have tried to maintain my medical knowledge and to this end I completed a Diploma in Dermatology, sat the written component of Part II MRCP and attended lectures for GPs organised by my local postgraduate centre. In addition, I sought advice from Dr Hibble, the Director of Postgraduate Education for the Eastern Deanery, about learning more of medical ethics. He suggested that I write an essay on medical ethics – but I felt that I would greatly benefit from a more formal approach and accordingly took a course in Ethics and Philosophy of Healthcare at the Society of Apothecaries in London. That course emphasised to me the very serious breaches of good practice and protocol that I had committed.
7. As the Committee will appreciate, I have had ample time to consider that previous hearing. The great regret that I have is that I did not demonstrate sufficient understanding of the effects of my actions upon these 2 young ladies and their families at the time – instead concentrating upon my personal circumstances. Not only was this a fundamental misunderstanding of the true values of a doctor/patient relationship – but just as importantly I now recognise that the 2 ladies and their families may have thought that I cared little for their own difficulties. I will freely and humbly offer my unreserved apologies to them now.” However, I would respectfully ask this Committee to bear in mind my own circumstances at the time of the hearing. I was a doctor of 8 years qualification. It was the first time that I had appeared in front of the Committee. I was married with 2 very young children, with my wife expecting a third. I was the sole breadwinner in the house and I faced the prospect of losing my career and my livelihood. All that paled into insignificance when I considered the shame that I had brought upon my family and my practice and I honestly wondered how I could face the world again. Please be aware that I do not say these things to excuse my actions – but simply to inform the Committee of my thought processes at the time and the very great effect these proceeding have had upon me, how I view my work and how I approach my patients.
8. Obviously, the Committee will be concerned to ensure that I am fully aware of the seriousness of my previous actions and will not repeat them again.
9. As I have already indicated, I have considered very very carefully what I did. I believe that I am now much more sensitive and aware of the obligations that I have to patients in particular and the society as a whole. The Committee may well recall that both of the complaints about me occurred at a time when I was working at an “Out of Hours Agency” which did not provide for chaperones. The Committee had heard evidence from the last hearing that I would invariably ask for a chaperone when I examined female patients at my surgery. I would ask this Committee to accept that I would never again treat female patients in the way that this Committee has previously heard, but if the Committee has any doubts about that I am happy to confirm that I would willingly accept any restrictions upon my registration so long as I am able to practice again. I accept that the welfare and autonomy of the patient is paramount and that a doctor must always act out of a sense of duty.
(a) the appellant is unsuitable for inclusion in the list; and
(b) the inclusion of the appellant’s name would be prejudicial to the efficiency of the services that he would undertake.
The PCT stated that the facts and reasons relied on were those set out in the
PAG report of 2 February 2004 which it accepted. The PAG report
recommended that the appellant was unsuitable for inclusion on four grounds;
(a) the contrast between his apparent contrition to the GMC and his attitude to
(b) the charges at the end of 2003; (c) the inappropriate, indecent conduct found proved by the GMC constituting an abuse of his professional position in the case of both complainants; (d) the conditions imposed by the GMC prohibiting out of hours
visits, work for an on call service and unchaperoned intimate examinations of
female patients. The PAG further recommended that including the appellant in
the List would be prejudicial to the efficiency of the service because of the
above grounds and the restrictions imposed by the GMC “which would make it
impossible for him to provide the full range of activity provided by general
grounds that it was “unfair and unreasonable” as he has served the sanction
imposed by the GMC and the findings of the GMC are not sufficient reason
for exclusion from the Supplementary List.
In relation to the PCT’s fourth summarised reason (the question of insight), the appellant said: “The fourth reason given by the PCT is clearly an area of dispute as the appellant has never admitted to the allegations made against him. However he did accept without appeal the decision by the GMC to suspend his registration. The appellant therefore submits that there is no requirement by the GMC for the appellant to apologise for the allegations made against him and this was not a condition imposed upon him by the GMC. Accordingly he considers it unreasonable for the PCT to impose such a condition.”
The appellant further argued that the conditions imposed upon him would not make him inefficient as a GP.
The appeal was heard at the Care Standards Tribunal, London on 10 June 2004. The appellant was represented by Mr Ian Rimmer of the BMA and the PCT by Mr Richard Booth of Counsel.
The only witness called by the PCT was Mr Peter John Greenwood the Corporate Services Manager of the Chelmsford PCT and Secretary of the PAG. The latter advises the thirteen Essex PCTs on performance in general medical practice. He verified and relied upon a short statement dated 25 May 2004 pointing out that a career in hospital medicine was not precluded by the PCT’s decision and that the appellant sitting the RCP (rather than RCGP) examinations might suggest that the he may take this course. He confirmed that the PCT continued to rely on both the inefficiency and unsuitability grounds.
Mr Rimmer submitted that the conditions imposed upon the appellant might be inconvenient but did not result in inefficiency. He reminded the Panel of Mr Greenwood’s answer to this effect, saying that the inefficiency ground was “not our strongest point”. In relation to unsuitability he urged on the Panel the need for a proportionate response to the circumstances and the disastrous consequences of the case for the appellant and his family. He submitted that the appellant had had no intention to deceive the PCC.
In relation to inefficiency there is no evidence of lack of clinical competence. We do not accept that the conditions imposed upon the appellant’s practice of medicine would make him inefficient, although they would add burdens to any practice where he worked. Whilst we accept the overlap between the grounds of efficiency and unsuitability, we think it right in the circumstances of this case to deal with them separately as far as possible. Whilst, if the PCT had chosen to proceed on the efficiency ground alone we should and would have taken evidence relating to the appellant’s probity into account, where (as here) the PCT chooses to pursue both efficiency and unsuitability it seems to us logical and fairer to the appellant to treat them as if distinct. Otherwise one would add little or nothing to the other. Our finding is that the PCT has not made out the efficiency ground.
40. In relation to unsuitability the appellant accepts that he cannot ask us to go behind the findings of the PCC. Accordingly we bear in mind the context of two indecent assaults on strangers in their homes in the small hours of the morning (one a 14 year old with a hearing impairment, the other a single parent with a sick child) carried out by a doctor in his first year of general practice. In each case the appellant had been called to provide medical advice and help so that his professional duties were fully engaged. The second assault took place after a complaint had been made in relation to the first.
41. To this unpromising start other factors must be added. The appellant was in breach of the condition imposed by the IOC to keep a register of intimate examinations on three occasions in less than six months and whilst awaiting his PCC hearing.
42. A main factor in our considerations was D1A. We find it impossible, in view of the language and context of the document, for any fair-minded reader to conclude that that document should be given the highly limited interpretation for which the appellant contended so as to be consistent with a denial of guilt. Contrary to the appellant’s evidence we find that it was written to mislead the PCC with great care taken to choose words so as to omit any express acceptance of the charges themselves whilst conveying the impression that acceptance, contrition and insight were the very basis of the document. Whilst we understand the reasons for which he chose not to appeal the findings of the PCC, we cannot accept that he conducted himself with probity and insight thereafter.
43. We also find that the appellant’s words about the complaints in his conversation with Mr Greenwood on 30 September 2003 were highly inappropriate and inconsistent with the insight and respect he had claimed before the PCC only five weeks before. The fact that he could not make up his mind before us whether he maintained the complainants were lying or mistaken or confused was further evidence of a lack of probity in trimming evidence to achieve a perceived advantage.
44. Further, the appellant began work on 3 November 2003 knowing he was not entitled so to do before being admitted to a List. Even if he was led to believe this would be a formality, the responsibility was on him to secure admission and the failure to take that responsibility seriously appears to us to be evidence of unsuitability for general practice. We have reservations about the appellant’s claimed ignorance of this requirement and about the writing of the letter of 11 September 2003 in this context.
45. For all these reasons the Panel unanimously finds that the appellant is unsuitable to be included on what was at the time of the application the PCT’s Supplementary List and dismisses his appeal in relation to the unsuitability ground.
Under section 49N(3) we are empowered, on dismissing a practitioner’s appeal, to impose a national disqualification. The PCT urged upon us the view that this was a suitable case for the exercise of that power. No prior notice of this had been given to the appellant (although none is required) and in the result it was common ground that consideration of the imposition of a national disqualification would be adjourned to a further hearing of the Panel on a date to be fixed.
47. In accordance with Regulation 42 (5) of the Family Health Services Appeal Authority (Procedure) Rules 2001, we notify the appellant that he may have rights relating to appeals under Section 11 of the Tribunals and Inquiries Act 1992.
Mark Mildred - Chair