public record of determinations – medical practitioners tribunal mpt: dr el-masry 2 determination...

Record of Determinations –

Medical Practitioners Tribunal

MPT: Dr EL-MASRY

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PUBLIC RECORD Dates: 14/11/2017 - 28/11/2017 Medical Practitioner’s name: Dr Fardous Aziz Yousef EL-MASRY (also known as Dr Fay TURNER)

GMC reference number: 4391746

Primary medical qualification: MB BS 1982 University of Jordan

Type of case Outcome on impairment New - Misconduct Impaired

Summary of outcome

Suspension, 4 months. Immediate order imposed

Tribunal:

Legally Qualified Chair Miss Gillian Temple-Bone

Lay Tribunal Member: Miss Susan Hurds

Medical Tribunal Member: Dr Faizan Ahmed

Tribunal Clerk: Ms Angela Carney

Attendance and Representation:

Medical Practitioner: Present and represented

Medical Practitioner’s Representative: Mr Phillip Stott, Counsel, instructed by the Medical Defence Union

GMC Representative: Ms Elizabeth Dudley-Jones, Counsel

Attendance of Press / Public The tribunal agreed, in accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004, that the press and public be excluded from those parts of the hearing where matters under consideration were deemed confidential.



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DETERMINATION ON THE FACTS – 24/11/2017 Background 1. Dr El-Masry qualified in Jordan in 1982 and came to the United Kingdom in 1992. Prior to the events which are the subject of the hearing Dr El-Masry obtained membership of the Royal College of Paediatrics and Child Health in 1996. Dr El-Masry first registered with the GMC in 1997. She worked as a Staff Grade for several years and obtained a training number in 2004. She was on the training scheme for a number of years. In 2009 Dr El-Masry took some time off for personal reasons. In 2012 her training number was removed and she worked as a Locum for several years, first as a Senior House Officer then as a Registrar. At the time of the events Dr El-Masry was working as a Locum Paediatric Registrar at the Northwick Park Hospital and the Royal Berkshire Hospital. 2. The allegation that has led to Dr El-Masry’s hearing can be summarised as concerns relating to misconduct which have arisen from Dr El-Masry’s treatment of Patients A, B and C, where it is alleged that there were failings to carry out a number of actions that were required for the treatment and care of the patients. 3. The initial concerns were raised with the GMC in August 2015 by the Royal Berkshire Hospital, following a local investigation into the care and treatment of Patient C. Dr El-Masry had been working at the hospital as a Locum Paediatric Registrar since January 2015. The Outcome of an Application Made during the Facts Stage 4. The Tribunal granted Ms Dudley Jones’ application, made pursuant to Rule of the General Medical Council (Fitness to Practise Rules) 2004 as amended (‘the Rules’) that a witness give evidence via video link. Ms Dudley Jones explained that the witness had a health condition that made it difficult for her to travel to the hearing. Mr Stott, on Dr El-Masry’s behalf, made no objection to the application. The Allegation and the Doctor’s Response 5. The Allegation made against Dr El-Masry is as follows: Patient A

1. On 3 December 2013 Patient A attended Northwick Park Hospital and you:

a. failed to discuss the management of Patient A with a senior colleague prior to arranging the transfer of Patient A for surgical review;



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Withdrawn b. failed to make a record of your:

i. decision to alter your diagnosis; To be determined ii. decision to change Patient A’s treatment plan; To be determined iii. new treatment plan for Patient A; To be determined iv. discussion with Ms D at Chelsea and Westminster Hospital; To be determined v. decision not to discuss Patient A with a senior colleague.

Withdrawn

Patient B

2. On 5 April 2015 Patient B attended Royal Berkshire Hospital at which time you diagnosed Patient B with carotenaemia when it was not clinically indicated. To be determined 3. On the same date you failed to:

a. obtain an adequate history from Patient B’s family in that you did not ascertain:

i. when the yellow discolouration of Patient B’s skin and sclera occurred; To be determined ii. if there had been any history of dark coloured urine or pale stools; To be determined iii. a dietary history of excessive intake of foods containing carotene; To be determined iv. possible risk factors for viral hepatitis;



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To be determined v. a history of medications; To be determined vi. possible exposure to liver toxins; To be determined

b. examine Patient B; To be determined c. explore differential diagnoses other than carotenaemia; To be determined d. arrange blood tests to assess Patient B’s liver function and clotting; To be determined e. arrange a follow up review of Patient B’s condition; To be determined f. provide appropriate advice regarding the monitoring of:

i. signs of worsening jaundice; To be determined ii. feeding; To be determined iii. frequency of vomiting; To be determined iv. frequency of diarrhoea; To be determined

g. develop and implement an appropriate treatment/management plan. To be determined

Patient C 4. On 14 June 2015 Patient C attended Royal Berkshire Hospital and you failed to:

a. obtain your own history from Patient C and/or his



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relative(s); To be determined b. examine Patient C; To be determined c. assess and/or review Patient C’s:

i. blood pressure; To be determined ii. pulse; To be determined iii. conscious level; To be determined iv. eye movements; To be determined v. eyes for signs of: a) dilated pupils;

To be determined b) retinal haemorrhage; To be determined c) papilledema;

To be determined d. explore diagnoses other than a migraine; To be determined e. request a CT scan; To be determined f. develop and implement an appropriate treatment plan; To be determined g. convey your plan in relation to Patient C to nursing and/or medical staff; To be determined



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h. return to Patient C to continue to monitor him; To be determined

i. the history personally obtained in relation to Patient C; Admitted and Found Proved ii. your assessment/s of Patient C; Admitted and Found Proved iii. your examination of Patient C; Admitted and Found Proved iv. any treatment plan; Admitted and Found Proved v. conversations with other staff regarding Patient C’s care. Admitted and Found Proved

6. At the outset of these proceedings, through Mr Stott, Dr El-Masry made admissions to sub-paragraphs 4h(i) to 4h(v) 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 these paragraphs and sub-paragraphs of the Allegation as admitted and found proved. The Facts to be Determined 7. In light of Dr El-Masry’s response to the Allegation made against her, the Tribunal is required to determine whether Dr El-Masry failed to make a record of her examination, assessment and treatment of Patient A; failed to examine, detail an adequate history or treat appropriately Patient B and C. Factual Witness Evidence 8. The Tribunal received evidence on behalf of the GMC from the following witnesses, who positions then were as set out below, in person:

Dr H, ST4 Registrar in Paediatrics A&E, Royal Berkshire Hospital Ms I, Senior Staff Nurse in Paediatrics A&E, Royal Berkshire Hospital Dr J, Consultant in Emergency Medicine, Royal Berkshire Hospital

Dr K , Consultant Paediatrician, Royal Berkshire Hospital Ms E, Nurse in Paediatrics A&E, Royal Berkshire Hospital

9. The Tribunal received evidence on behalf of the GMC from the following witness, via video link:



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Ms F, Senior Staff Nurse in Paediatrics A&E, Royal Berkshire Hospital 10. 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:

Dr G, Consultant Paediatrician, Northwick Park Hospital

Miss D, Paediatric Surgical Registrar, Chelsea and Westminster Hospital 11. Dr El-Masry provided her own witness statement, dated 17 October 2017 and also gave oral evidence at the hearing.

Expert Witness Evidence 12. The Tribunal also received expert witness evidence from Dr X, Consultant Paediatrician, on behalf of the GMC and Dr Y, Consultant Paediatrician, on behalf of Dr El-Masry. Both experts gave oral evidence in relation to Patients A, B and C and assisted the Tribunal in understanding the professional standards to be expected of a Paediatric Registrar. 13. Dr X provided the Tribunal with reports dated 8 February 2016, 21 and 22 December 2016 and 10 August 2017. Dr Y provided the Tribunal with a report dated 25 October 2017. The Tribunal also received a joint expert report dated 6 November 2017. Documentary Evidence 14. The Tribunal had regard to the documentary evidence provided by the parties. This evidence included, but was not limited to:

Raising Concerns Form by Dr G, Consultant Paediatrician Medical Records for Patient A from Northwick Park North West London

Hospitals NHS Trust Medical Records for Patient A from Chelsea and Westminster Hospital NHS

Foundation Trust North West London Hospitals NHS Trust statements from Nurse I, Dr H, Nurse

E, Dr J and Dr K

Medical Records for Patient B from Royal Berkshire NHS Foundation Trust Medical Records for Patient C from Royal Berkshire NHS Foundation Trust and

The John Radcliffe Hospital

Raising Concerns Form by Nurse I Initial accounts from Nurse I, Dr H , Nurse E, Nurse F, Dr J and Dr K



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The Tribunal’s Approach 15. 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 El-Masry 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. 16. The Tribunal also bore in mind that in order to determine whether or not Dr El-Masry failed to do something it must first establish whether or not she had a duty to do so. 17. During its deliberations the Tribunal bore in mind Dr El- Masry’s previous long history of proper professional conduct. The Tribunal took into account the following: giving evidence can be stressful, English is not Dr El-Masry’s first language and at times she may not have expressed herself clearly. Where there may have been doubt about Dr El-Masry’s phrasing or the way she gave evidence the Tribunal gave her the benefit of the doubt. The Tribunal also bore in mind XXX as detailed to the Tribunal. The Tribunal’s Analysis of the Evidence and Findings 18. The Tribunal has considered each outstanding paragraph of the Allegation separately and has evaluated the evidence in order to make its findings on the facts. Patient A 19. Patient A was a three month old child who attended the Emergency Department of Northwick Park Hospital on 3 December 2013 at 07.28 hrs. Patient A was triaged by a nurse and Dr El-Masry as the Paediatric Registrar was called. Dr El-Masry saw Patient A together with a junior doctor, Dr L. Dr El-Masry concluded that Patient A had sepsis without an identified source and an initial treatment plan was made to admit the patient and do a full septic screen. Sometime later a decision was made to transfer Patient A to the Chelsea and Westminster Hospital as it was thought that Patient A needed surgical intervention. There is no record by Dr El-Masry of this decision and subsequent treatment plan and discussion with Ms D at the Chelsea and Westminster Hospital in Patient A’s Medical notes. Dr El-Masry asserts that she made notes but they are missing. 20. The Tribunal was provided with two sets of Patient A’s notes one from the Northwick Park Hospital and the other from Chelsea and Westminster Hospital. It is noteworthy that the notes provided by Chelsea and Westminster Hospital include notes written at Northwick Park Hospital which are not contained within the notes provided by Northwick Park Hospital.



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Paragraph 1b 21. The Tribunal noted Patient A’s medical notes indicate that at 09.15 hrs a full septic screen was done and at 09.30 hrs the bloods were done. There is a note at 9.50 hrs which states ‘discussed with surgeons at Chelsea and West- accepted to present in A&E’ 22. At 10.02 the notes state ‘Called 999 as want an immediate blue light transfer’. 23. At 10.07 the notes state ‘Confirmed patient – immediate transfer’. 24. On page 10 of Patient A’s Northwick Park medical notes are the notes made by Dr L during the assessment. The next page of the notes, page 11, is blank. There are no entries in the medical notes by Dr El-Masry. There is a handwritten referral letter to the Chelsea and Westminster Hospital done by Dr L setting out the clinical findings. 25. The Tribunal heard that on 3 December 2013 Dr El-Masry commenced her first ever shift at the Northwick Park Hospital as a Paediatric Registrar. In her witness statement Dr El-Masry stated that she would have made a record of her assessment at the time including the two telephone conversation with Miss D, Paediatric Surgical Registrar, Chelsea and Westminster Hospital. 26. She stated that Dr L documented the initial assessment and her entries would have been made subsequent to his on a fresh continuation sheet. Dr El-Masry also stated that once the decision to transfer Patient A was made the medical notes would have been taken away, possibly by a nurse, for copying. Dr El-Masry also commented that the notes from Chelsea and Westminster Hospital do not correspond exactly with the notes from Northwick Park Hospital, in that, Chelsea and Westminster notes had additional pages. 27. It is alleged that Dr El-Masry failed to: make a record of her decision; alter her diagnosis; change Patient A’s treatment plan; record a new treatment plan for Patient A or her discussion with Ms D (Ms D) at Chelsea and Westminster Hospital. 28. The Tribunal has taken account of the fact that the two sets of Patient A’s notes Chelsea and Westminster Hospital and Northwick Park Hospital indicate that the notes provided by Northwick Park Hospital to the Tribunal may be incomplete. 29. The Tribunal heard from both expert witnesses, Dr X and Dr Y that medical notes do sometimes go missing or not all of the pages of the notes are photocopied, particularly in the event of a time critical transfer. Dr Y in his oral evidence confirmed that he had personal experience of notes going missing.



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30. The Tribunal considers that it is possible for medical notes to be lost particularly when they are being copied as a matter of urgency. It also accepted the possibility that Dr El-Masry may have been writing her own medical notes when the remainder of Patient A’s medical notes were being copied. The Tribunal having noted that the two sets of medical notes provided by Chelsea and Westminster Hospital and Northwick Park Hospital are not identical, considers that it is more likely than not that Dr El-Masry’s notes may have been lost at that time. The Tribunal determined that there is insufficient evidence that Dr El-Masry failed to make a record of her assessment of Patient A. Accordingly, the Tribunal found paragraph 1b of the allegation not proved. Patient B 31. Patient B was a 3 year old child who attended the A&E department at The Royal Berkshire Hospital at 18.00 hrs on 5 April 2015 with his mother (whose first language was not English). He presented with intermittent abdominal pain, loose stools and sclera yellow. Nurse I triaged the child. Nurse I stated that Patient B’s mother said that her child had gone yellow and Nurse I recalled that Patient B’s skin had a subtle yellow tinge. Nurse I also noted that the white of Patient B’s eyes were ‘obviously yellow’. Nurse I felt that Patient B had an unusual presentation and that he warranted being seen urgently by a Paediatric Doctor. She stated that it was the usual thing to do blood tests on patients who were yellow and therefore applied anaesthetic gel. 32. Nurse I asked Dr El-Masry to see the child. He was hyperactive and she also believed it would be difficult to obtain blood. It was well known that Paediatric Registrars have the most experience of taking blood. Dr El-Masry declined to see the child. Nurse I recalled that Dr El-Masry suggesting that the child’s yellow appearance may be from eating too many carrots. 33. Later, Dr H, the A&E Registrar asked Dr El-Masry to come and review the child and to take blood which he had been unable to do. Dr H recalled Dr El-Masry giving an opinion that the child may have carotenaemia. Dr El-Masry did not recall any interaction or dialogue with Nurse I. Dr El-Masry recalled offering an informal opinion only to Dr H and stated he did not ask her to take blood. 34. Dr H stated that Dr El-Masry assessed the child and advised him that he was suffering from gastroenteritis and should discharge him with fluids. Dr H offered to write the discharge report. Dr El-Masry denied having diagnosed the child, asserting he was not her patient because he had not been referred to her care. Dr El-Masry denied that Dr H wrote the discharge report on her behalf. 35. Nurse I recorded in Patient B’s medical notes at 18.10:



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‘Since last night abdo pain, Loose stools. Apyrexial. Eating and drinking as normal’ 36. Nurse I later recorded Patient B’s medical notes: ‘…Since last night abdo pain and loose stools. No loss of appetite, sclera yellow.’ 37. Nurse I stated that she felt that Patient B would need to have bloods taken so she applied a local anaesthetic gel to his hand. 38. At 20.20 hrs Dr H, A&E Registrar, assessed Patient B. In his initial Trust statement Dr H records ‘Icterus both eyes’. The Tribunal were told that this means both eyes were yellow. He stated that he was unsure of the diagnosis at that time but felt that the child needed blood tests and a Paediatric review. Dr H tried to cannulate Patient B but was unable to do so. He stated that he spoke to Dr El-Masry who was the Paediatric Registrar on duty and as he had failed to cannulate the child he asked her to secure an IV line and send the bloods to the labs; review the child and decide about a further plan of care of the child. 39. Dr El-Masry told the Tribunal that in her view she had only offered to give an informal opinion and that she had not been asked to take bloods. She further stated that she had gone to see Patient B with Dr H. 40. Dr H medical notes timed at 20.20 hrs state:

‘Generally calm but when touched gets distressed. Abdomen soft, Tenderness cannot be elicited complains of pain and moves along, bowel sounds present. Icterus both eyes, play school - diarrhoea’

41. Dr H said that Dr El-Masry opined that the yellow discolouration of the eyes could be from carotenaemia and the abdominal pains could be from gastroenteritis and thought that the child could be discharged. He further stated that he wrote up the notes retrospectively and agreed to do the discharge record on the A&E computer and that Dr El-Masry had asked him to include information about Patient B’s development in a letter to this GP. 42. Patient B was discharged. He was readmitted on 7 April 2015. Patient B sadly died in May 2015. His death was not as a direct result of events that occurred on 5 April 2015.



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Witnesses 43. Nurse I Nurse I was the Senior Staff Nurse in Paediatric A&E and had worked in the department for two years. The Tribunal found that Nurse I had a high level of experience and responsibility and had a good knowledge of Paediatric A&E. Nurse I had a good recollection of some parts of the events relating to Patient B, in some parts her recall was exceptionally good. It was her evidence that in the conversation with Dr El-Masry the doctor suggested that the yellowness may be caused by eating too many carrots. Nurse I had a very clear recollection as the mother of Patient B did not speak very good English so she showed her a picture of carrots to establish whether the child had eaten them. Patient B’s mother confirmed that Patient B did not eat carrots as he did not like them. When it was not so clear she indicated this readily to the Tribunal. When Nurse I was asked by the Tribunal why she recalled the events with such clarity she stated: ‘This incident was a big deal at the time.’ and that ‘I was appalled … I felt we had failed this child because he had come to A&E and been sent home without any investigations’. 44. The Tribunal noted that Nurse I could not recall exactly when she had had a conversation with Dr H following the events on 5 April 2015. However, the Tribunal found that this did not detract from her evidence. It found Nurse I did her best to assist the Tribunal and made no embellishments to her evidence. Nurse I did not shy away from difficult questions and confirmed that she had not directly asked Dr El-Masry to take Patient B’s bloods. 45. Dr H The Tribunal found that Dr H’s oral evidence was consistent with his witness statements. Dr H’s initial statement to the Trust was clearer than his more recent one but accepted that this may be as a result of the passage of time. In relation to the blood tests and paediatric review Dr H was very clear that he had asked Dr El-Masry to cannulate Patient B as he had failed to do so, and to review Patient B. Dr H acknowledged that his medical notes could have been clearer. Whilst his recollection was not as clear as Nurse I’s the Tribunal found that he was helpful. 46. Dr El-Masry (known as Dr Turner at the Royal Berkshire Hospital) The Tribunal made allowance for Dr El-Masry when giving her evidence, as stated above. It found that Dr El-Masry had a poor recollection of the events relating to Patient B. Dr El-Masry told the Tribunal that she had no recollection of the discussion around Patient B eating too many carrots and carotenaemia with Nurse I or indeed



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any recollection of Nurse I. Dr El-Masry told the Tribunal that she remembers informally suggesting to Dr H that: ‘it could be carotenemia if the child is otherwise well’. 47. Dr El-Masry asserts that she did not make a diagnosis of carotenaemia and this had been an informal discussion. In her oral evidence she asserted that she was aware that yellow sclera would preclude the diagnosis of carotenaemia. 48. In Dr El- Masry’s witness statement at paragraph 11 she states: ‘…As a result I did not take a history or look at the child’s notes or examine him. 49. In paragraph 13 Dr El-Masry states: … I did not think that his eyes looked yellow..’ 50. In oral evidence, when asked if she looked in Patient B’s eyes Dr El-Masry said:

‘Yes it is easy, his eyes were open, but assessing in artificial light is not easy…. I did not think he looked really strikingly yellow’.

51. Dr El-Masry recalled that there was a distinct odour in the cubicle and she suggested the child may have norovirus. 52. The Tribunal found Dr El-Masry’s account to be inconsistent as she states that she did not examine Patient B, but later states that she did not think his eyes looked yellow. The Tribunal found that Dr El-Masry’s account of the child’s appearance was in direct contrast to both Nurse I and Dr H, who both reported the yellow discolouration and yellow sclera. 53. The Tribunal found Dr El-Masry’s evidence in relation to Patient B to be less credible than that of Nurse I and Dr H. Patient B’s referral to Dr El-Masry 54. The Tribunal first considered whether Dr H referred Patient B to Dr El-Masry and if so, whether she had a duty of care to Patient B and if so whether she failed in that duty. Mr Stott submitted that the Tribunal should consider that the question was not whether Dr H believed he had referred Patient B to Paediatrics but whether Dr El-Masry believed that Patient B had been referred to her.



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55. There are no notes made by Dr El-Masry on Patient B’s medical notes. Dr H confirmed that it was his handwriting and signature on Patient B’s Medical notes and that he completed Patients B’s discharge details on the computer system in order to remove the patient from the A&E list within the service target of four hours. He explained that some of the Specialty departments were not familiar with the A&E computer system and A&E staff would often complete the discharge forms for the specialty. This assertion was supported by other witnesses particularly Dr J the A&E Consultant (who gave evidence in relation to Patient C). 56. The Tribunal heard from Nurse I that at the Royal Berkshire Hospital nurses could not refer patients to other specialty departments. Although she said that nurses could request any Specialist Registrar to see a patient. The Tribunal considers that this was a somewhat grey area at the hospital. The Tribunal accepts that Dr El-Masry had the right to refuse to see Patient B if requested to do so by a nurse. The Tribunal accepts that the interaction between Nurse I and Dr El-Masry was a request and not a referral. Patient B was not referred to Dr El-Masry at that point. 57. The Tribunal noted that Nurse I had applied a local anaesthetic to Patient B’s hand as she believed that bloods would be required. Dr H told the Tribunal that he attempted to cannulate Patient B but failed to do so. In his oral evidence Dr H stated that he asked Dr El-Masry to cannulate Patient B in order to take bloods as he felt that she had more experience in cannulating children. He also asked her to review the Patient B. 58. Patient B’s medical notes under ‘Management Plan’ state: ‘Did not get bloods could not find cannula…’ 59. Dr El-Masry states that she went to see Patient B with Dr H and that she was merely giving an informal opinion. 60. Dr H states that Dr El-Masry went to see Patient B alone. He said that when she went to review Patient B he returned to the A&E Department to see other patients. The Tribunal preferred Dr H’s evidence and found it more likely than not that he considered he had referred Patient B to Paediatrics, as he would need to return to a busy A&E department. The Tribunal found that Dr El-Masry went to see Patient B alone and thereby accepted responsibility and a duty of care for Patient B as her patient. 61. In his oral evidence Dr H explained the referral system in the A&E department at the Royal Berkshire Hospital and said that referrals were usually ‘one way’ as patients didn’t usually return to A&E. He also stated that once a ‘Senior Specialist’ reviews a patient they ‘take over’. The Tribunal noted that although Dr H was a Registrar, Dr El-Masry was more senior to him. Dr H was an ST4 and had been in the post only a matter of months.



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62. At paragraph 11 of her witness statement Dr El- Masry states: ‘Out of interest and to be helpful I asked the A&E Registrar if he wanted me to come and have a look at the child, which I then did. 63. Dr H’s recollection was that he completed the medical notes after he had seen Patient B and when Dr El-Masry had said that Patient B could be discharged. The medical notes under ‘Management Plan’ state: ‘…Home after paeds review seen by Paeds Registrar advised discharge with fluids’ 64. The Tribunal is satisfied that as the notes were written after the events on a logical reading Dr H is recording what had happened. 65. Both expert witnesses were of the view that a referral of a patient from one doctor to another should be recorded in the medical records and that ordinarily the doctor receiving the referral would note the acceptance of that referral. 66. The Tribunal accepted the opinion of the experts that in general a referral should be clearly recorded. However it is of the view that the general practise at the time of the events in the A&E department was that if a review was sought from a Specialist Paediatric Registrar and they agreed to see the patient then the duty of care to that patient became their responsibility. This was confirmed by the evidence of Nurse I and Dr H. The Tribunal considers that Dr El-Masry’s interaction with Patient B influenced and impacted on the discharge of Patient B. The Tribunal is satisfied, on the balance of probabilities, that Patient B was referred to Dr El-Masry, went to see him on her own, and therefore she had a duty of care to him as her patient. Paragraph 2 67. The Tribunal noted that there are no medical notes made by Dr El-Masry in relation to Patient B. It also noted that there is no mention of carotenaemia in the medical notes made by Dr H. The Tribunal is in no doubt, on the basis of the evidence before it that Dr El-Masry had formed the view that carotenaemia was the most likely cause of Patient B’s yellow colouration. However, due to the lack of medical notes it does not consider that Dr El-Masry diagnosed Patient B with carotenaemia when it was not clinically indicated. Accordingly, the Tribunal found paragraph 2 of the allegation not proved. Paragraph 3 68. It was Dr X’s opinion that:



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‘It is the responsibility of the Paediatric Registrar to assess any blood test results and decide what further management was required if a child presents acutely with jaundice.’

‘In my opinion, my composite response to points 3. a-g is that Dr El-Masry acted as though Patient B had been referred to her and that she should have adequately assessed Patient B’s jaundice, and also Patient B’s vomiting and diarrhoea and formulated an effective plan of investigation and management.’

69. It was Dr Y’s opinion that:

‘The medical notes and statements are inconsistent about whether Dr El-Masry was referred this patient or not. Dr El-Masry should have established with the A&E Registrar whether he was making a formal referral but equally he should have ensured that this was obvious to Dr El-Masry and it does not appear to have been (and his note does not reflect a formal referral). On the GMC’s version of events, if the patient was formally referred to Dr El-Masry and this was made clear to her, then she should have undertaken the steps set out in allegation 3. as part of an assessment and management plan.’

70. In relation to sub-paragraph 3a-g having found that Patient B had been referred to Dr El-Masry, the Tribunal accepted the expert opinions of Dr X and Dr Y. In the absence of any medical notes written by Dr El-Masry, the Tribunal found that she failed to: obtain an adequate history from Patient B’s family, examine Patient B, explore differential diagnoses other than carotenaemia, arrange blood tests to assess Patient B’s liver function and clotting, arrange a follow up review of Patient B’s condition, provide appropriate advice regarding monitoring and develop and implement an appropriate treatment / management plan. Accordingly the Tribunal found paragraph 3 proved. Patient C 71. The events relating to Patient C occurred after Patient B died in May 2015. The Tribunal was therefore mindful that there may have been concern amongst medical professionals about those colleagues who were also involved in the care of Patient B. 72. Patient C was a ten year old boy who was carried into the A&E department of the Royal Berkshire Hospital on 14 June 2015 by his father. Nurse E undertook the initial triage on Patient C and said that his father explained that Patient C had a shunt in his brain which had blocked previously and he was concerned that there was a problem with it again. He said Patient C had become lethargic, complained of a headache and had been sick.



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73. Nurse E was sufficiently concerned to transfer Patient C to the observation bed which is was next to the nurse’s station for monitoring and observation. Nurse E informed the Senior Staff Nurse F of Patient C’s history and presentation and said that she was worried about him and wanted to have him assessed by the Paediatric Registrar and Nurse F agreed. 74. Patient C Glasgow Coma Scale (GCS) was recorded as 15 in one part of the medical notes and 13 in another part. He was given a Paediatric Early Warning Score (PEWS) of 2 which was scored because of parental concern. 75. Nurse E states she went to the doctor’s office and asked Dr El-Masry to see Patient C as he was moaning loudly. She provided Dr El-Masry with a brief history about the shunt repair, lethargy and headache. Nurse E states that she returned to the nurse’s station which is situated approximately five metres from the doctor’s office. She states that Dr El-Masry came out of the doctor’s office and stood at the nurse’s station but did not assess Patient C. Nurse E states that Dr El-Masry said she thought Patient C had a migraine and that Nurse E should give him Ibuprofen. 76. Nurse E states that she discussed her concerns about Dr El-Masry’s comment with Nurse F as she believed that Patient C needed an urgent CT scan in the light of his recent shunt repair and presentation. In her oral evidence Nurse F stated that Nurse E was so shocked at Dr El-Masry’s diagnosis of migraine and prescription of ibuprofen that she commented to her ‘Is she for real?’ 77. It was agreed by Nurses F and E that a second opinion would be sought from the Emergency Department Consultant Dr J. Nurse F also telephoned the on-call Paediatric Consultant Dr K. 78. The Tribunal is mindful that the initial witness statements to the Trust are at odds with the later accounts in regard to who went for Dr J and who made the decision to call Dr K. 79. The Tribunal noted Nurse E’s medical note timed 19.30 states: ‘Paeds Reg called and advised to give ibuprofen and CT not required. As not happy with plan A&E and Paed Consultant called.’ 80. The Tribunal asked Nurse E whether that would be her usual wording on medical notes and she stated ‘I don’t normally write like that, not often.’ When asked how often she had written words such as those she replied ‘I don’t remember writing anything like that before.’



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Witnesses 81. Dr K The Tribunal found Dr K to be a straightforward credible and compelling witness. Both her initial witness statement to the Trust and her later statement to the GMC are consistent. In her oral evidence Dr K conceded that she had little memory of the events and relied on her initial account. She made it clear that she would not have written anything unless it happened. Dr K did not attempt to embellish her account. She was very clear that Dr El-Masry told her on three occasions that she thought Patient C had a migraine: When she was examining Patient C; when she was on the telephone; when reflecting with Dr El-Masry after the patient’s transfer. Dr K said: ‘I remember because it was an unusual situation. I was speaking to a neurosurgeon telling them about the patient and someone was beside me talking about migraine. My understanding was that Dr El-Masry thought the patient had migraine.’ 82. Dr K further described on the third occasion she was sitting down with Dr El-Masry away from the patient to try to talk to her in a supportive way to talk about her impression of the patient ‘and why I felt differently that the patient had a blocked shunt and why the patient was now en route to the John Radcliffe Hospital for surgery’. 83. Dr K’s evidence of Dr El-Masry’s view about Patient C having a migraine was consistent with the evidence of the two nurses E and F. 84. Dr J The Tribunal found that Dr J had a minimal involvement with Dr El-Masry and the care of Patient C. Whilst he accepts that Dr El-Masry may have spoken to him he cannot recall it. Therefore his evidence, save to confirm the nurse’s and Dr El-Masry’s evidence of his presence and the reason he was asked to attend, adds little to the evidence regarding the allegation. 85. Nurse F The Tribunal found Nurse F, who gave evidence by video link, to be a credible witness. The Tribunal considers that Nurse F may be confused about whether it was she or Nurse E who went to get Dr J and as to whose decision it was to call Dr K. This did not undermine the weight of her evidence regarding her observations of Dr El-Masry and Patient C. Her evidence that Dr El-Masry did not examine Patient C was in direct conflict with the evidence of Dr El-Masry. 86. Nurse E The Tribunal found Nurse E’s evidence to be consistent with her witness statements. It noted that Nurse E had the most interaction with Patient C. Her evidence of Dr El-



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Masry’s involvement was in direct conflict with the evidence of Dr El-Masry. The Tribunal found Nurse E to be a credible and clear witness. 87. Dr El-Masry The Tribunal found that Dr El-Masry’s evidence lacked credibility. In general she had a very poor recollection. Most of her oral evidence was prefaced with ‘My practice was …’ or ‘I would usually …’ When asked if she had an independent recall of events she said she did not. When asked about speaking to Dr K whilst she was on the telephone to a neuro surgeon Dr El-Masry said ‘I have no recall of that’. Asked when she spoke to Dr K when she attended the department Dr El-Masry said ‘I can’t remember the time exactly’. This contrasted with her in oral evidence detailing an examination of Patient C which she said she did by touch and in particular felt for the valve in his head to test that it was working, skills she had learned from working in a Paediatric neurology department. Dr El-Masry’s witness statement makes no reference either to an examination by touch or to having touched the valve in Patient C’s head. Her evidence as to what she was heard to have said, namely, ‘He has a migraine’ conflicts with Dr El-Masry’s recall that she enquired about a family history of migraine. Paragraph 4a, 4b, 4 (ci-iii) 4d-4g 88. The Tribunal considers that written and oral evidence of the nurses indicates a clear recollection of what Dr El-Masry said and recommended with regard to Patient C’s care, the consequences of this treatment plan caused the nurses to escalate the matter to the A&E Consultant, Dr J. It is less clear who went for Dr J. Nevertheless, he was called and he came immediately. 89. Dr El-Masry at the end of her witness statement records ‘Later on I recall discussing the patient again with [Dr K]. She told me that his condition had improved and he was well and chatty and she was wondering if he needed to go to the John Radcliffe…’ The evidence of Dr K is that Patient C was intubated and in a time critical transfer for urgent surgery at the John Radcliffe Hospital. 90. Where there is a difference between Dr El-Masry’s account and that of Nurse E, Nurse F and Dr K the Tribunal preferred their evidence to Dr El- Masry’s. All three were consistent in their recollection of Dr El-Masry’s actions and in particular that Patient C was suffering from Migraine. 91. The Tribunal notes Dr El-Masry states that the time she assessed Patient C was when she first arrived at the observation bay. Dr El-Masry accepted that Patient C was her patient. If as asserted by Dr El-Masry she did assess Patient C, The Tribunal considers it is all the more extraordinary that she continued to assert to Dr K that Patient C had a migraine.



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92. The Tribunal noted in Dr El-Masry’s witness statement at paragraph 16 she stated: ‘I therefore went to the doctor’s office to call the Paediatric consultant on call, Dr K, to discuss the patient and to ask what she wanted me to do,’ 93. The Tribunal found that was inconsistent with Dr El-Masry’s oral evidence during which she asserted that she was calling Dr K for permission for a CT scan. 94. The Tribunal concluded that Dr El-Masry was convinced that Patient C had a migraine. It is clear that between 17.00 hrs and 17.32 hrs Dr El-Masry thought it was a migraine. There is a disparity of times and it is unknown as to the reason (if she did) Dr El-Masry may have telephoned Dr K. Dr El-Masry could also have approached Dr J to authorise a CT scan. The Tribunal cannot speculate as to the reasons for Dr El-Masry’s actions. The Tribunal cannot account for Dr El-Masry’s thoughts and conclusion during this time as she failed to make any contemporaneous medical notes. 95. Accordingly, the Tribunal found the allegation paragraphs 4a to 4c (iv-v) and 4d-4g proved. Paragraphs 4c (iv-v) 96. The Tribunal do not find allegation 4c(iv-v) proved because it was clear from the evidence of the experts and from Dr J’s own examination that an examination of the eyes for movement, signs of dilated pupils, retinal haemorrhage or papilledema was not essential given the urgent need for a CT scan. Paragraph 4h 97. The Tribunal notes the evidence by Dr El-Masry and Dr K that Dr El-Masry returned to where Patient C was being examined by Dr J. It is less clear whether she returned to monitor him but on the balance of probabilities the Tribunal do not find that the GMC has proved its case in this matter. Accordingly, the Tribunal found paragraph 4h not proved. The Tribunal’s Overall Determination on the Facts 98. The Tribunal has determined the facts as follows: Patient A

1. On 3 December 2013 Patient A attended Northwick Park Hospital and you:



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a. failed to discuss the management of Patient A with a senior colleague prior to arranging the transfer of Patient A for surgical review; Withdrawn b. failed to make a record of your:

i. decision to alter your diagnosis; Not proved ii. decision to change Patient A’s treatment plan; Not proved iii. new treatment plan for Patient A; Not proved iv. discussion with Ms D at Chelsea and Westminster Hospital; Not proved v. decision not to discuss Patient A with a senior colleague.

Withdrawn

Patient B

2. On 5 April 2015 Patient B attended Royal Berkshire Hospital at which time you diagnosed Patient B with carotenaemia when it was not clinically indicated. Not proved 3. On the same date you failed to:

a. obtain an adequate history from Patient B’s family in that you did not ascertain:

i. when the yellow discolouration of Patient B’s skin and sclera occurred; Disputed and found proved ii. if there had been any history of dark coloured urine or pale stools; Disputed and found proved iii. a dietary history of excessive intake of foods containing carotene;



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Disputed and found proved iv. possible risk factors for viral hepatitis; Disputed and found proved v. a history of medications; Disputed and found proved vi. possible exposure to liver toxins; Disputed and found proved

b. examine Patient B; Disputed and found proved c. explore differential diagnoses other than carotenaemia; Disputed and found proved d. arrange blood tests to assess Patient B’s liver function and clotting; Disputed and found proved e. arrange a follow up review of Patient B’s condition; Disputed and found proved f. provide appropriate advice regarding the monitoring of:

i. signs of worsening jaundice;

Disputed and found proved ii. feeding; Disputed and found proved iii. frequency of vomiting; Disputed and found proved iv. frequency of diarrhoea; Disputed and found proved

g. develop and implement an appropriate treatment/management plan.

Disputed and found proved



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Patient C 4. On 14 June 2015 Patient C attended Royal Berkshire Hospital and you failed to:

a. obtain your own history from Patient C and/or his relative(s); Disputed and found proved b. examine Patient C; Disputed and found proved c. assess and/or review Patient C’s:

i. blood pressure; Disputed and found proved ii. pulse; Disputed and found proved iii. conscious level; Disputed and found proved iv. eye movements; Not proved v. eyes for signs of: a) dilated pupils; Not proved

b) retinal haemorrhage;

Not proved c) papilledema;

Not proved d. explore diagnoses other than a migraine; Disputed and found proved e. request a CT scan; Disputed and found proved f. develop and implement an appropriate treatment plan; Disputed and found proved



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g. convey your plan in relation to Patient C to nursing and/or medical staff; Disputed and found proved h. return to Patient C to continue to monitor him; Not proved i. make a record of:

i. the history personally obtained in relation to Patient C; Admitted and Found Proved ii. your assessment/s of Patient C; Admitted and Found Proved iii. your examination of Patient C; Admitted and Found Proved iv. any treatment plan; Admitted and Found Proved v. conversations with other staff regarding Patient C’s care. Admitted and Found Proved

DETERMINATION ON IMPAIRMENT – 28/11/2017 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 El-Masry’s fitness to practise is impaired by reason of misconduct. The Outcome of Application made during the Impairment Stage 2. Mr Stott indicated to the Tribunal his instructions to proceed with the impairment stage in the absence of Dr El-Masry, whom he represents. XXX The Tribunal questioned whether he had considered a telephone link and waited whilst he made that enquiry. Mr Stott was unable to contact Dr El-Masry but continued to indicate his instructions were unchanged. 3. The Tribunal agreed to continue to the impairment stage in the absence of Dr El-Masry having considered that she was neither prejudiced nor was there any injustice in so doing because Mr Stott was here to represent her with full instructions.



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The Evidence 4. The Tribunal has taken into account all the evidence received during the facts stage of the hearing, both oral and documentary. The Tribunal received no further evidence at the impairment stage. Submissions 5. On behalf of the GMC, Ms Dudley-Jones referred the Tribunal to Good Medical Practice 2013, in particular paragraphs paras 1, 15, 16, 19, 21, 31 35, 36 and 37. She reminded the Tribunal that Dr El-Masry is a senior practitioner, a Paediatric Registrar, and was well aware of her responsibilities. She stated that Dr El-Masry would have known of her obligations in relation to taking adequate histories, examining patients, arranging investigations, record keeping and good communication with nursing staff and other medical colleagues. She stated that Dr El-Masry’s failures spanned from 5 April 2015 to 14 June 2015. She reminded the Tribunal that it had identified that Dr El-Masry had failed to provide good clinical care to Patient B and Patient C in a variety of different ways. She submitted that Dr El-Masry’s deficient clinical care towards Patients B and C can properly be described as a pattern of misconduct which was repeated and persistent. 6. Ms Dudley-Jones stated that there are common themes between Dr El-Masry’s failings in respect of both patients. She also stated that there are common traits communicated by nursing and medical staff in respect of Dr El-Masry’s behaviour namely that she was dismissive, she didn’t take concerns expressed to her seriously, jumped to clinical conclusions without clinical examination or assessment, was rude, or difficult to persuade. 7. Ms Dudley-Jones submitted that Dr El-Masry breached one of the fundamental tenets of the profession, namely to provide good clinical care to her patients. Ms Dudley-Jones submitted that Dr El-Masry’s actions in relation to Patients B and C amounted to misconduct which was serious. 8. Ms Dudley-Jones stated that the Tribunal may find that Dr El-Masry’s insight into the seriousness of her actions was somewhat limited. She said that Dr El-Masry’s misconduct may be capable of being remediated but there is little or no evidence before the Tribunal of the steps taken (if any) as to how or whether she has actually remediated her serious misconduct. She reminded the Tribunal that Dr El-Masry conceded that she needs to work on communicating with staff and that as she is unable to work presently she is unable to address any of the failings she has identified in her communication skills. 9. Ms Dudley-Jones reminded the Tribunal that Dr El-Masry has not worked since June 2015. She stated that as the Tribunal has limited evidence of any remediation of Dr El-Masry’s misconduct, it cannot be satisfied that it will not be



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repeated in the future. She submitted that Dr El-Masry’s actions amount to serious misconduct and that her fitness to practise is currently impaired as at today, as a result of that serious misconduct. 10. On behalf of Dr El-Masry, Mr Stott stated that, in relation to Patient C both experts were of the view that the facts now found proved was conduct which fell seriously below the standard of a Registrar. He stated that in the context of the facts proven that amounted to a single occasion of misconduct. He reminded the Tribunal of Dr Y’s opinion that Dr El-Masry’s conduct regarding Patient B only fell seriously below the standard expected of a reasonably competent Locum Paediatric Registrar if Dr El-Masry knew that Patient B had been referred to her and it was clear to her he had been so referred. 11. In respect of Patient C he stated there is one instance where Dr El-Masry’s standards fell seriously below and it is in law capable of a finding of misconduct in itself. He stated that the Tribunal may wish to consider with care whether the high bar, as described by the authorities, has been reached in this case and if so go on to consider impairment. He reminded the Tribunal to consider misconduct found proved in the light of Dr El-Masry’s career to date. He stated that Dr El-Masry has spent twenty years practising safely and competently as a paediatrician in the UK. 12. He reminded the Tribunal of Dr El-Masry’s insight into her shortcomings regarding Patients B and C, regarding her communication and stated that it is clear she is aware that she needs to work on these. He stated that Dr El-Masry has accepted her poor communication and team working. He stated that in her oral evidence she accepted her failings in record keeping in regard to Patient C and submitted that she has insight into that. He stated that Dr El-Masry has demonstrated some insight into the circumstances about her behaviour although conceded that there is not full insight as Dr El-Masry disputed the facts that the Tribunal found proved. 13. Mr Stott reminded the Tribunal to bear in mind that there was no actual direct patient harm caused by Dr El-Masry’s failings, due to the intervention of others. He reminded the Tribunal that Dr El-Masry has been unable to work due to the interim conditions on her registration, the lack of a positive reference from the Royal Berkshire Hospital and because her Locum agency could not find her any suitable positions. He stated that the lack of a positive reference from Royal Berkshire, reflected allegations of probity concerning whether Dr El-Masry made telephone calls to Dr K. Evidence put before this Tribunal shows that two calls were made to Dr K from the doctor’s office and those allegations were not subsequently pursued. 14. Mr Stott submitted that the Tribunal should take into account Dr El-Masry’s long and unblemished service as a paediatrician. Mr Stott asked the Tribunal to bear



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in mind that that this was Dr El-Masry’s first disciplinary hearing when determining whether or not her Fitness to Practise is impaired. The Relevant Legal Principles 15. 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 judgment alone. 16. 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 misconduct, and that the misconduct was serious and then whether the finding of that misconduct which was serious, would lead to a finding of impairment. 17. The Tribunal must determine whether Dr El-Masry’s fitness to practise is impaired today, taking into account Dr El-Masry’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 whether there is any likelihood of repetition. The Tribunal’s Determination Misconduct 18. Patient B The Tribunal found that Patient B had been formally referred to Dr El-Masry. Dr El-Masry was asked on two occasions by Dr H to see Patient B. Dr El-Masry went to see Patient B and she went on her own. The Tribunal was in no doubt that Patient B had been referred to Dr El-Masry and that she knew that he had been referred. Therefore Dr El-Masry had a duty of care to Patient B.

19. Dr El-Masry did not obtain an adequate history from Patient B’s family. Dr El-Masry failed to ascertain when the yellow discolouration of Patient B’s skin and sclera occurred; if there had been any history of dark coloured urine or pale stools; a dietary history of excessive intake of foods containing carotene; possible risk factors for viral hepatitis; a history of medications; possible exposure to liver toxins. Most importantly the Tribunal found that Dr El-Masry failed to examine Patient B.

20. The Tribunal found that as Dr El-Masry was of the opinion that carotenaemia

was the most likely cause of Patient B’s discoloration she failed to explore differential diagnoses other than carotenaemia. She failed to arrange blood tests to assess Patient B’s liver function and clotting; arrange a follow up review of Patient B’s condition; provide appropriate advice regarding the monitoring of signs of worsening jaundice; feeding; frequency of vomiting; frequency of diarrhoea; and she failed to develop and implement an appropriate treatment/management plan.



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21. The Tribunal noted that Nurse I had been concerned about Patient B and therefore asked Dr El-Masry to see him. The Tribunal also noted that Dr El-Masry refused to see Patient B when she was first asked to by Nurse I and was thereafter reluctant to see him. Dr H in evidence described having persuaded Dr El-Masry to see the patient and thereafter referred the patient to her. 22. The Tribunal accepted the opinions of the expert witness Dr X, on behalf of the GMC and Dr Y on behalf of Dr El-Masry. In relation to Patient B it was Dr X’s and Dr Y’s joint opinions that:

‘…., if the patient was formally referred to Dr El-Masry and this was made clear to her, then she should have undertaken the steps set out in allegation 3. as part of an assessment and management plan. In my opinion, to have failed to do so fell seriously below an acceptable standard.

23. Patient C The Tribunal found that Dr El-Masry failed to: obtain her own history from Patient C and/or his relative(s); examine Patient C; assess and/or review Patient C’s blood pressure, pulse and conscious level.

24. Dr El-Masry failed to examine Patient C yet made a diagnosis of migraine and suggested ibuprofen. Dr El-Masry failed to assess and/or review Patient C’s blood pressure; his pulse and his conscious level. Dr El-Masry failed to: explore diagnoses other than a migraine, request a CT scan, develop and implement an appropriate treatment plan or convey her plan in relation to Patient C to nursing and/or medical staff. Nurses E and F were so concerned about Patient C that they sought a second opinion from Dr J and called the on call Paediatric Consultant, Dr K.

25. The Tribunal noted that Dr El-Masry admitted failing to make a record of: Patient C’s history, her assessment/s of Patient C, her examination of Patient C, any treatment plan and her conversations with other staff regarding Patient C’s care. 26. The Tribunal accepted Dr Y’s opinion in relation to Patient C that:

‘On the GMC’s version of events Dr El-Masry failed to do 4.a.-f. In my opinion, this would fall seriously below the standard to be expected. …The assessment of patient C was not a straightforward matter. In assessing children with shunts, there should always be a high level of clinical suspicion and a low threshold for organising a CT scan. The A&E Consultant’s note did not establish any signs of a blocked shunt, when the consultant had seen the patient C after Dr El-Masry. It was only as his condition changed that the diagnosis was supported by the changing signs. However, in my opinion, there were symptoms to suggest raised ICP - the fact the child had a severe headache and intermittent drowsiness. In this child, who had had a number



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of CT scans and a recent shunt revision, it would be important to think carefully before simply organising another CT scan. Hence the need for a phone call for discussion with the consultant.’

27. The Tribunal took account of paragraphs 1, 15, 16, 19, 21, 35, 36 and 37 of Good Medical Practice, which state:

‘1. Patients need good doctors. Good doctors make the care of their patients their first concern: they are competent, keep their knowledge and skills up to date, establish and maintain good relationships with patients and colleagues, are honest and trustworthy, and act with integrity and within the law.

15. You must provide a good standard of practice and care. If you assess, diagnose or treat patients, you must: a. adequately assess the patient’s conditions, taking account of their history (including the symptoms and psychological, spiritual, social and cultural factors), their views and values; where necessary, examine the patient

b. promptly provide or arrange suitable advice, investigations or treatment where necessary

c. …

16. In providing clinical care you must: …

c. take all possible steps to alleviate pain and distress whether or not a cure may be possible

d. consult colleagues where appropriate

…

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

c. the information given to patients

d. any drugs prescribed or other investigation or treatment



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e. who is making the record and when.

35. You must work collaboratively with colleagues, respecting their skills and contributions.

36. You must treat colleagues fairly and with respect.

37. You must be aware of how your behaviour may influence others within and outside the team.’

28. The Tribunal concluded that Dr El-Masry’s conduct in relation to Patient B and Patient C fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to misconduct. Impairment 29. The Tribunal having found that the facts found proved amounted to misconduct, went on to consider whether, as a result of that misconduct Dr El-Masry’s fitness to practise is currently impaired. 30. The Tribunal had regard to whether Dr El-Masry’s misconduct is easily remediable, whether it has been remedied, and whether it is likely to be repeated. The Tribunal accepted that clinical failings are capable of remediation. 31. The Tribunal has found that Dr El-Masry’s misconduct relates to her treatment of two patients, B and C. It considers that this this is not a single episode of misconduct. Both patients were children and as such were vulnerable patients. Both patients presented with symptoms that had the potential to develop into very serious conditions, which in the case of Patient B did in fact lead to his death. The Tribunal fully accepts that Patient B’s death was not caused by Dr El-Masry’s failings. 32. Patient B was a three year old child that presented with yellow discolouration. Yellow discolouration is common in neonates but is unusual in a three year old. This should have been evident to a Paediatric Registrar of Dr El-Masry’s experience. The triage nurse was sufficiently concerned about Patient B’s presentation that she requested a Paediatric Registrar, Dr El-Masry, to attend. 33. Patient C was a ten year old child who had to be carried into the A&E department by his father. Patient C had had a VP shunt revision only a few days earlier and presented with headaches. This should have triggered a ‘red flag’ to any Paediatric Registrar. It was the concern of the nurses that resulted in Dr El-Masry being called to see the patient and subsequently a second opinion being sought of the A&E Consultant and the on-call Paediatric Consultant being called in. 34. In her witness statement Dr El-Masry stated:



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‘Later on I recall discussing the patient again with [Dr K]. She told me his condition had improved and he was well and chatty and she was wondering if he needed to go to the John Radcliffe…’

35. The Tribunal is concerned that even whilst the Paediatric Consultant, Dr K was arranging a time critical transfer of Patient C to the John Radcliffe Hospital to undergo urgent neurosurgery, Dr El-Masry maintained that the child had a migraine. Paediatric Consultant, Dr K considered Dr El-Masry’s treatment of Patient C to be a ‘near miss’. 36. The Tribunal has noted that in her witness statement Dr El-Masry stated: ‘It is clear from these cases that I need to work on improving my communication with other staff’. 37. The Tribunal has noted that whilst Dr El-Masry has identified concerns regarding her communication she appears to have failed to sufficiently reflect on the clinical incidents, including communication and team work that led to her misconduct. The Tribunal accepts that Dr El-Masry has not been working in a clinical setting since 2015. Nevertheless, it has received no evidence of courses she could have attended in order to remediate her poor communication and team working. 38. The Tribunal has received no evidence that Dr El-Masry has reflected on the potential impact of her clinical failings in relation to Patients B and C that led to the findings of her misconduct. The Tribunal has received no evidence of any remediation Dr El-Masry has undertaken to address any areas of her practice that led to her misconduct. Further, the Tribunal has received little evidence that Dr El-Masry has shown insight into her misconduct. 39. The Tribunal took into account the references provided by Dr El-Masry exhibited to her witness statement from MEDACS dated 3 July 2013, 23 May 2012 and 13 June 2012. In 2012, one of the doctor’s references referred to having worked with Dr El-Masry in 2004 and 2007, which included a reference to her having good clinical skills. The other references in large measure accorded her a grading of satisfactory, in particular regarding her clinical skills, relationships with patients other healthcare workers and the public and her communication skills. 40. The Tribunal notes that Dr El-Masry’s misconduct put patients B and C at risk of harm. The Tribunal considers that in the absence of evidence to the contrary there continues to be a risk that Dr El-Masry’s misconduct could be repeated in the future. 41. The Tribunal was mindful of the need to protect the public, to uphold proper standards and maintain public confidence in the profession and determined that this would be undermined if a finding of impairment was not made in this case.



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42. The Tribunal has therefore determined that Dr El-Masry’s fitness to practice is impaired by reason of misconduct. DETERMINATION ON SANCTION – 28/11/2017 1. Having determined that Dr El-Masry’s fitness to practise is impaired by reason of 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. The Outcome of an Application made at the Sanction Stage 2. Mr Stott indicated to the Tribunal that Dr El-Masry instructed him to proceed with the sanction stage in her absence. XXX 3. The Tribunal agreed to continue to the sanction stage in the absence of Dr El-Masry having considered that she was neither prejudiced nor was there any injustice in so doing because Mr Stott was here to represent her with full instructions. The Evidence 4. The Tribunal has taken into account evidence received during the earlier stages of the hearing where relevant to reaching a decision on sanction. It received no further evidence from the GMC or Dr El-Masry. Submissions 5. On behalf of the GMC, Ms Dudley-Jones submitted that in all the circumstances anything lesser than suspension would not be adequate and is necessary to protect the public. Ms Dudley-Jones stated that taking no action would not be appropriate given the Tribunal’s finding on impairment. She stated that conditions would not be appropriate, given Dr El-Masry’s lack of insight and failure to remediate, retrain or keep her knowledge and skills up to date. Ms Dudley-Jones reminded the Tribunal of Dr El-Masry’s lack of insight and that it had identified limited insight in its impairment determination. Ms Dudley-Jones stated that although there have been no previous disciplinary proceedings against Dr El-Masry, this may be because she worked as a locum and concerns may not have been reported. 6. Mr Stott stated that he accepted on her behalf that this is not a case where no actions or undertakings are appropriate. He submitted that conditions were workable and would protect patients and maintain public confidence in the profession. He



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accepted that the Tribunal had identified a lack of full insight. He stated Dr El-Masry’s lack of insight must be seen in the round. He stated that although her failings were serious which could have resulted in patient harm, this is not a pattern of misconduct as there were only two in a short period of two months over two decades of practice in this country. 7. Mr Stott stated that this is not the sort of case where there is a demonstrable tendency to behave in a particularly egregious manner. He reminded the Tribunal of the reasons why Dr El-Masry has been unable to work including the reference from the Royal Berkshire Hospital and XXX. He stated that this relates to poor professional performance and clinical failings. He reminded the Tribunal that Dr El-Masry has had a very long and successful career and stated that some of her failings are to work collaboratively with colleagues. 8. Mr Stott submitted that were the Tribunal to impose conditions on Dr El-Masry’s registration then a condition of supervision may be appropriate. He submitted that direct supervision would not be necessary. Mr Stott submitted it is not a case where the breach is so serious or persistent that a suspension is appropriate and Public confidence in the profession would be upheld by a period of conditional registration. He stated that this was not a case where there had been a serious departure from the principles set out in good medical practice nor was Dr El-Masry’s conduct fundamentally incompatible with continued registration. He submitted that there is potential for remediation. The Tribunal’s Approach 9. The Tribunal took into account Dr El-Masry’s twenty years of clinical practise in the United Kingdom, without reported concern. The Tribunal also appreciates that it can be difficult to develop insight when a doctor is contesting some of the allegations. 10. The Tribunal did not take into account Ms Dudley-Jones’ suggestion that Dr El-Masry, having been employed in locum posts may have given rise to concerns at work that were not reported and accepts she has an otherwise unblemished career. The Tribunal’s Determination on Sanction 11. The decision as to the appropriate sanction to impose, if any, in this case is a matter for this Tribunal exercising its own judgement. 12. In reaching its decision, the Tribunal has taken account of the SG. It has borne in mind that the purpose of the sanctions is not to be punitive, but to protect patients and the wider public interest, although they may have a punitive effect. 13. Throughout its deliberations, the Tribunal has applied the principle of proportionality, balancing Dr El-Masry’s interests with the public interest. The public



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interest includes, amongst other things, the protection of patients, the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour. 14. The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction. No Action 15. In coming to its decision as to the appropriate sanction, if any, to impose in Dr El-Masry’s case, the Tribunal first considered whether to conclude the case by taking no action. The Tribunal determined that there are no exceptional circumstances. In view of the Tribunal’s findings on impairment, it would be neither sufficient, proportionate nor in the public interest, to conclude this case by taking no action. Conditions 16. The Tribunal next considered whether it would be sufficient to impose conditions on Dr El-Masry’s registration. It has borne in mind that any conditions imposed would need to be appropriate, proportionate, workable and measurable. 17. The Tribunal took particular account of paragraphs 136, 137 and 145 of the SG, which state:

‘136. Doctors are expected to work collaboratively with colleagues to maintain or improve patient care. These duties are set out in paragraphs 35–37 of Good Medical Practice. 137. Colleagues include anyone a doctor works with, whether or not they are also doctors. 145. Where a patient is particularly vulnerable, there is an even greater duty on the doctor to safeguard the patient. Some patients are likely to be more vulnerable than others because of certain characteristics or circumstances, such as:

… b. being a child or young person aged under 18 years …’ 18. The Tribunal is of the opinion that Dr El-Masry’s misconduct relates mainly to her poor interpersonal skills and attitude towards other colleagues. It considers that Dr El-Masry lacks insight into her behaviour towards the nurses regarding patients B and C and towards Dr H and Dr K. The Tribunal is also concerned regarding Dr El-Masry’s poor decision making which remains to be addressed.



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19. The Tribunal considered whether a period of conditional registration requiring supervision would sufficiently address the deficiencies identified by Dr El-Masry’s misconduct. It noted that Mr Stott submitted that close supervision would not be appropriate and supervision by telephone would provide sufficient protection for the public. 20. The Tribunal considered that the major deficiencies in Dr El-Masry’s clinical practice, that put patients at potential risk of harm, relates to her interpersonal skills, team working and decision making. The Tribunal is concerned about Dr El-Masry’s lack of insight into these serious and significant deficiencies. The Tribunal considered that Dr El-Masry’s indication in her statement that her ‘communication skills could be improved’ was superficial and wholly inadequate. 21. The Tribunal is of the opinion that a period of conditional registration would not be adequate to protect the public in the absence of insight indicated above. Whilst the Tribunal considered that Dr El-Masry’s misconduct is capable of remediation it considers that it would be premature to impose conditions until these significant deficiencies are fully addressed and evidenced. 22. The Tribunal considered that there are no conditions that could be devised that would sufficiently protect the public, the public interest and maintain public confidence in the profession. The Tribunal has, therefore, determined that it would not be sufficient to direct the imposition of conditions on Dr El-Masry’s registration at this time. Suspension 23. The Tribunal then went on to consider whether suspending Dr El-Masry’s registration would be appropriate and proportionate. 24. The Tribunal has determined that Dr El-Masry’s misconduct is not fundamentally incompatible with her continuing to practise medicine. Therefore, it has determined that, in the particular circumstances of this case, it would be sufficient and proportionate to suspend Dr El-Masry’s registration. The Tribunal is of the view that the public interest requires that it be made clear that her misconduct, as detailed previously, is unacceptable in a member of the medical profession and that her deficient practise must be addressed, through reflection and remediation. 25. Accordingly, the Tribunal has determined to direct that Dr El-Masry’s name be suspended from the Medical Register for a period of four months. In the light of all the evidence presented to it, it is satisfied that suspension is a proportionate sanction in this case. In determining the period of four months the Tribunal considered this will give Dr El-Masry time to reflect on her misconduct and address her shortcomings.



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26. The effect of the foregoing direction is that, unless Dr El-Masry exercises her right of appeal, her name will be suspended from the Medical Register 28 days from the date on which written notice of this decision is deemed to have been served upon her. 27. The Tribunal determined to direct a review of Dr El-Masry’s case. A review hearing will convene shortly before the end of the period of suspension, unless an early review is sought. The Tribunal wishes to clarify that at the review hearing, the onus will be on Dr El-Masry to demonstrate how she has reflected and addressed her misconduct. It therefore may assist the reviewing Tribunal if Dr El-Masry provides the following:

Evidence that she has reflected on the impact that her conduct has had on patients, their families, colleagues and the profession

The steps she has taken to address her misconduct A reflective statement on the tribunals findings Evidence of the steps she has taken to keep her skills and medical knowledge

up to date Any other information that she considers will assist

Erasure 28. The tribunal accepted the submissions from Ms Dudley-Jones and Mr Stott that erasure was not an appropriate sanction in this case. Erasure would be disproportionate at this time to the Tribunal’s findings. DETERMINATION ON IMMEDIATE ORDER - 28/11/2017 1. Having determined to suspend Dr El-Masry’s registration for a period of four months, the Tribunal has considered, in accordance with Rule 17(2)(o) of the Rules, whether Dr El-Masry’s registration should be subject to an immediate order. Submissions 2. On behalf of the GMC, Ms Dudley-Jones submitted that an immediate order is necessary as the Tribunal has determined that Dr El-Masry currently poses a risk to patient safety. She requested that the interim order be revoked. 3. Mr Stott made no submission on an immediate order but reminded the Tribunal that Dr El-Masry is not currently working.



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The Tribunal’s Determination 4. Having considered the submissions, and in the light of the Tribunal’s findings on impairment, in particular Dr El-Masry’s lack of insight into her misconduct, the Tribunal is satisfied that it is necessary for the protection of the public and in the public interest for her registration to be suspended forthwith. 5. This means that Dr El-Masry’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. 6. The interim order currently imposed on Dr El-Masry’s registration will be revoked when the immediate order takes effect. Confirmed Date 28 November 2017 Miss Gillian Temple-Bone, Chair



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ANNEX A - 14/11/2014

1. Prior to opening the case, Mr Stott, on behalf of Dr El-Masry made an application in accordance with Rule 41XXX of the GMC’s (Fitness to Practise) Rules Order of Council 2004 (‘the Rules’) that the hearing should go into private in order to discuss a confidential matter. 2. Ms Dudley-Jones made no objection to the application to go into private session. 3. The Tribunal acceded to the application to go into private session. 4. XXX Mr Stott suggested hourly breaks. He stated that there may be times when Dr El-Masry may have to leave the hearing room and proceedings stop, dependent on where the hearing was up to and at other times the hearing could proceed without Dr El-Masry being present. 5. The Tribunal acceded to Mr Stott’s request on behalf of Dr El-Masry to ensure that there would be hourly breaks in the proceedings.