Record of Determinations –
Medical Practitioners Tribunal
PUBLIC RECORD
Dates: 17/10/2016 – 20/10/2016
Medical Practitioner’s name: Dr Djamal-Eddine MERABET
GMC reference number:
7023577
Primary medical qualification:
MD 1994 Universite d'Alger
Type of case
New - Misconduct
Outcome on impairment
Impaired
Summary of outcome
Erasure
Immediate order imposed
Tribunal:
Medical Tribunal Member (Chair)
Dr Janet Nicholls
Lay Tribunal Member:
Mrs Susan Staveley
Lay Tribunal Member:
Mr Keith Moore
Legal Assessor:
Dr Digby Jess
Ms Margaret Obi (18.10.16)
Ms Erin Brass
Tribunal Clerk:
Attendance and Representation:
Medical Practitioner:
Not present and not represented
GMC Representative:
Mr D Moran, Counsel
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
Allegation and Findings of Fact
That being registered under the Medical Act 1983 (as amended):
1. On 13 February 2015, during a telephone screening interview (the ‘Telephone
Interview’) you were asked ‘have you ever been under investigation by the
GMC?’ or words to that effect, and you answered ‘no’; Found proved
2. On 19 February 2015, during a face to face interview (the ‘Interview’) you
failed to declare that you were under investigation by the GMC. Found
proved
3. On 16 March 2015, when completing a Baseline Personnel Security Standard
Application Form (‘BPSS’) you:
a. answered ’no’ to the question ‘have you ever been the subject of any
proceedings for professional misconduct?’; Found proved
b. signed a declaration that the information you had provided was true
and complete to the best of your knowledge and belief. Found
proved
4. On 14 April 2015:
a. at 12:47 you sent an email to Person A attaching correspondence from
the GMC (‘GMC Letter’) where you had deliberately obscured the:
i. date at the top of the GMC Letter; Found proved
ii. sentence ‘I have included a copy [of the information] with this
letter’; Found proved
iii. sentence ‘Please do this by 22 December 2014’; Found proved
b. at 13:50 you sent an email to Person A attaching the GMC Letter
where you had deliberately:
i. amended the date at the top of the GMC Letter to ’31 Mars
2015’; Found proved
ii. obscured the sentences set out in paragraph 4(a)(ii-iii); Found
proved
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
c. at 14:18 you sent an email to Person A attaching the GMC Letter
where you had deliberately obscured the sentences set out in
paragraph 4(a)(ii-iii). Found proved
5. Your actions as set out in paragraphs 1- 4 above were:
i. misleading; Found proved 1, 2, 3, 4a, 4b and 4c
ii. dishonest. Found proved 1, 2, 3, 4a and 4b. Found not
proved 4c
And that by reason of the matters set out above your fitness to practise is impaired
because of your misconduct.
Attendance of Press / Public
The hearing was all heard in public.
Determination on preliminary procedural matters - 19/10/2016
Service
1.
Dr Merabet is neither present nor represented. The tribunal therefore
considered whether the notice of allegation and the notice of this hearing had been
properly served upon him in accordance with Rules 15 and 40 of the Fitness to
Practise Rules (2004 as amended) (The Rules) and of Schedule 4, Paragraph 8 of
the Medical Act 1983 (as amended).
2.
You drew the tribunal’s attention to the Notice of Allegation, dated 8
September 2016, which was sent by Special Delivery to Dr Merabet’s registered
address by the General Medical Council (GMC). The tribunal also took into account a
tracking document from Royal Mail confirming that the Notice of Allegation was sent
to the registered address and was signed for on 12 September 2016. The GMC also
sent the Notice of Allegation by email on 8 September 2016 for which a ‘read receipt’
has been received.
3.
You further drew the tribunal’s attention to the Notice of Hearing, dated 13
September 2016 which was sent by Special Delivery to Dr Merabet’s registered
address by the Medical Practitioners Tribunal Service (MPTS), in which the date,
time, and location of this hearing are detailed. The tribunal has had regard to a
tracking document from Royal Mail confirming that the Notice of Hearing was sent to
the registered address and was signed for on 14 September 2016.
4.
The tribunal is satisfied that the Notice of Allegation and the Notice of Hearing
were sent to Dr Merabet’s registered address, in compliance with the Rules. Both
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
Notices were signed for under the terms of Royal Mail Special Delivery Service. The
tribunal is satisfied that notice of the allegation and notice of this hearing have been
properly served upon Dr Merabet in accordance with the Rules.
Proceeding in Absence
5.
The tribunal then went on to consider your application whether to proceed with
the case in his absence in accordance with Rule 31 of the Rules.
6.
You submitted that Dr Merabet had voluntarily absented himself and had
reported no reason as to why he was unable to attend. You further submitted that
there would be no merit in an adjournment as there was no reason to believe it
would lead to Dr Merabet’s future attendance. You reminded the tribunal that it was
in the public interest to hear cases within a reasonable period of time.
7.
In considering whether to proceed in the absence of Dr Merabet, the tribunal
bore in mind that it has the discretion to proceed with the case in his absence. It
took into account that this discretion should be exercised with great care and caution
and with the overall fairness of the proceedings in mind. The tribunal also bore in
mind the need to balance Dr Merabet’s interests with the public interest.
8.
The tribunal has noted that Dr Merabet has not made any application to
adjourn proceedings nor requested time to seek legal advice or representation. He
has not made the GMC or the MPTS aware of any reason, such as ill health or other
circumstance beyond his control, to explain his failure to attend the hearing. In the
absence of any substantive information regarding his failure to attend the tribunal is
not satisfied that adjourning this case of its own volition is likely to lead to Dr
Merabet attending.
9.
The tribunal then considered any disadvantages of Dr Merabet not being able
to put his case. At this stage it knows nothing of the case, other than the allegation.
The tribunal is aware of its duty of fairness and emphasises that the burden is on
the GMC to prove the matters against the doctor; and that the doctor does not have
to prove or disprove anything. It was also mindful of its own function as a tribunal of
inquiry.
10.
Having considered the documents and correspondence before it, the tribunal
was satisfied that Dr Merabet is aware of this hearing and that he has voluntarily
absented himself. The tribunal determined that it is in the public interest that it
should proceed with the case as expeditiously as possible. It therefore determined
that the hearing should proceed in the absence of Dr Merabet.
Application to Amend the Allegation Rule 17(6)
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
11.
During the opening of the case you informed the tribunal that there was a
potential error in paragraph 3 of the allegation, in that the date should be February,
not March. You informed the tribunal that you did not at this stage know the correct
date, however, the matter could be clarified with one if the witnesses.
12.
The tribunal subsequently heard from Ms A, senior recruitment consultant.
She informed the tribunal of the timeline of events as they occur as a doctor passes
through the recruitment process with her company. She informed the tribunal that
there would be the initial telephone screening call, the security form would then be
completed by the doctor prior to the final face to face interview stage.
13.
The tribunal accepted Ms A’s evidence, and together with the form containing
the date in question, determined that the correct date in the paragraph 3 of the
allegation was February, not March.
14.
The tribunal then considered its powers under Rule 17(6):
‘17(6) Where, at any time, it appears to the Medical Practitioners Tribunal that—
(a) the allegation or the facts upon which it is based and of which the practitioner
has been notified under rule 15, should be amended; and
(b) the amendment can be made without injustice,
it may, after hearing the parties, amend the allegation in appropriate terms.’
15.
You submitted that the amendment should be made to accurately reflect the
series of events. You submitted that it made no material difference to the paragraph
or to the allegation as a whole and so it could be made without injustice to Dr
Merabet.
16.
The tribunal determined that the date contained in paragraph 3 of the
allegation had no significance to the substantive allegation as it went to what Dr
Merabet had done, not when. The tribunal determined that the amendment would
alter the series of events, but as each paragraph could stand alone and did not
affect the others, the amendment would make no material difference to the overall
substance of the allegation. Given this, it therefore further determined that the
amendment could be made without injustice to Dr Merabet.
17.
The tribunal determined that even though no material difference would be
made by the amendment, it was in the interest of justice to amend the paragraph so
that it was factually correct for the record. The tribunal acceded to the application
and amended paragraph 3, substituting ‘February’ for ‘March’.
Determination on Facts - 19/10/2016
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
Background
1.
In February 2015 Dr Merabet applied for a medical post to a medical
employment agency, SJB Medical. At the time that Dr Merabet made this application
he was under investigation by the GMC. Dr Merabet had been informed of the GMC
investigation by a letter dated 15 December 2014. In an email to the GMC dated 19
December 2014, Dr Merabet confirmed receipt of the letter and attached the ‘Work
Details Form’. Dr Merabet was therefore aware of the GMC investigation when he
made the subsequent employment application in February 2015.
General Approach
2.
The tribunal has given careful consideration to all the evidence adduced in
this case. It has been presented with witness statements from three witnesses called
on behalf of the General Medical Council (GMC) and heard oral evidence from those
witnesses. In addition, the tribunal accepted as hearsay evidence the signed witness
statements of Ms B, Chief Executive SJB Medical and Ms C, Regional HR Advisor
assisting SJB Medical.
Assessment of Witnesses
Mr D, GMC Investigation Officer
3.
The tribunal found Mr D to be a credible witness. His evidence was of limited
assistance as he was not the investigating officer at the relevant time and was
therefore unable to state what Dr Merabet had and had not been told verbally in
respect of his duty of disclosure. Mr D did confirm that he was not aware of any
independent GMC published document which outlined a doctor’s responsibilities to
disclose ongoing investigations or any internal GMC document which guided
investigating officers about what to tell a doctor in respect of this.
Ms A, Senior Recruitment Consultant, SJB Medical
4.
The tribunal found Ms A to be an open, straightforward and credible witness.
She had a clear recollection of the process of the telephone interview, but no specific
recollection of Dr Merabet’s telephone interview. She did, however, have a clear
recollection of her subsequent conversations with Dr Merabet about his emailing of
the various copies of the GMC letter notifying him of its investigation.
Ms E, Clinical Interviewer, SJB Medical
5.
The tribunal found Ms E to be an open, straightforward and credible witness.
She was honest in her responses, even when that exposed weaknesses in the
process and clearly explained what had been done to avoid such a situation arising
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
again. The tribunal found that Ms E gave a well-rounded, non-defensive account
without embellishment. Ms E informed the tribunal that she did not recall her contact
with Dr Merabet specifically but, was very helpful in describing her practice at the
relevant time.
GMC Submissions
6.
You submitted that, in respect of paragraph 1, if the tribunal accepted the
evidence of Ms A, in that when asked a direct question Dr Merabet gave a false
answer, then it could only lead from this that this action was both misleading and
dishonest.
7.
You submitted that, in respect of paragraph 2, whilst it was conceded that Dr
Merabet was not asked the relevant question directly, this paragraph was not
dependent on the question being asked. You submitted that the duty was on Dr
Merabet to voluntarily disclose this information, and that this duty stemmed from
‘normal standards of honesty and human behaviour.’ You submitted that if the
tribunal accepted that there was a duty, then failure to act upon it was both
misleading and dishonest.
8.
You submitted that, in respect of paragraph 3, the word ‘proceedings’ should
be given its ordinary, everyday meaning and that this included ‘investigation’. You
submitted that Dr Merabet has never sought to justify his answers on the form and
has never questioned the contents of the form. You submitted that this action was
misleading and dishonest.
9.
You submitted that, in respect of paragraph 4, the documents presented to
the tribunal spoke for themselves and asked the tribunal to consider the letters
produced by Mr Merabet to Ms A with the original, unaltered letter produced by the
GMC. You submitted that the obscuring of the information was deliberate and could
not be accidental. You submitted that if the tribunal accepted this, then these
actions must be both misleading and dishonest.
Findings on the Facts
Paragraph 1
On 13 February 2015, during a telephone screening interview (the ‘Telephone
Interview’) you were asked ‘have you ever been under investigation by the
GMC?’ or words to that effect, and you answered ‘no’; Found proved
10.
The tribunal was presented with the pro-forma used at the relevant time by
SJB Medical for telephone screening interviews and heard evidence from Ms A. Ms A
explained how the pro forma was used and that it was standard practice to use it to
go through a telephone interview to ensure all the relevant questions were asked.
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
Ms A confirmed that she conducted the telephone interview with Dr Merabet and
that she completed the pro forma with his responses. She explained how an ongoing
investigation by a regulator was essential information to her company and that, as
such, she was always very careful to ensure that the question on the pro forma
‘Have you ever been under investigation?’ was asked. Ms E also gave evidence that
the question of regulatory involvement, past or present, was expected to be covered
at telephone interview stage.
11.
The tribunal was satisfied that Ms A asked Dr Merabet this question during
the telephone interview and that she completed the form accurately in accordance
with his responses at the time. The pro forma clearly indicates that Dr Merabet
answered ‘no’ to the relevant question. The tribunal found this paragraph proved.
Paragraph 2
On 19 February 2015, during a face to face interview (the ‘Interview’) you
failed to declare that you were under investigation by the GMC. Found
proved
12.
The tribunal heard oral evidence from Ms E, who conducted the face to face
interview. In her evidence she explained that she may not have asked a direct
question on this point, but rather used the wording on the form, which is phrased as
a statement of understanding rather than a question. She confirmed that at no point
during the interview did Dr Merabet declare that he was under investigation by the
GMC.
13.
The tribunal was satisfied that Dr Merabet did not declare the investigation
voluntarily and that he was not directly asked about any GMC involvement. The
tribunal must therefore determine whether Dr Merabet was under a duty to declare
it voluntarily at the material time, in order to establish that he, as per the allegation,
‘failed’ to do so.
14.
The tribunal was mindful that the GMC case relied on ‘normal standards of
honest and human behaviour,’ to impose the duty. The tribunal recognised that the
duty must be present at the material time, it cannot arise after the event and be
applied retrospectively.
15.
The tribunal had regard to Good Medical Practice 2013 (GMP) paragraph 71b
You must be honest and trustworthy when writing reports, and when
completing or signing forms, reports and other documents. You must make
sure that any documents you write or sign are not false or misleading.
a….
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
b You must not deliberately leave out relevant information.
16.
The tribunal also had regard to GMP paragraph 5, which defines the use of
the word ‘must’ when used in GMP. Paragraph 5 states ‘‘You must’ is used for an
overriding duty or principle’.
17.
The tribunal was satisfied that an ongoing investigation is relevant
information to a prospective employer and that GMP imposes a duty to not
deliberately leave out relevant information. The tribunal found that there was a duty
to disclose the investigation at the material time because it would have been evident
to Dr Merabet that Ms E was regarding him as someone who was not the subject of
a GMC investigation. The tribunal found this paragraph proved.
Paragraph 3
On 16 February 2015, when completing a Baseline Personnel Security
Standard Application Form (‘BPSS’) you:
b. answered ’no’ to the question ‘have you ever been the subject of any
proceedings for professional misconduct?’; Found proved
c. signed a declaration that the information you had provided was true
and complete to the best of your knowledge and belief. Found
proved
18.
The tribunal was presented with a copy of the BPSS form, as completed and
signed by Dr Merabet. It has not been presented with any evidence to suggest that
the form was not completed by him and that it is not his signature in the declaration.
The tribunal accepts that the form is therefore accurate.
19.
It can be seen from the form that where the question in relation to part a of
this paragraph is, the ‘yes’ has been obscured, leaving ‘no’ as the answer. The
declaration section of the form has also been signed and dated appropriately.
20.
The tribunal found this paragraph proved in its entirety.
Paragraph 4a
On 14 April 2015:
at 12:47 you sent an email to Person A attaching correspondence from
the GMC (‘GMC Letter’) where you had deliberately obscured the:
i. date at the top of the GMC Letter; Found proved
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
ii. sentence ‘I have included a copy [of the information] with this
letter’; Found proved
iii. sentence ‘Please do this by 22 December 2014’; Found proved
21.
The tribunal has heard evidence from Ms A that Dr Merabet contacted her on
14 April 2015 and informed her that he was under investigation by the GMC. She
informed the tribunal that she instructed him to send her a copy of the letter he had
received from the GMC regarding the investigation. The tribunal has been presented
with an email and attachment that Dr Merabet sent to Ms A in response to this
request. Ms A confirmed the email and the attachment to be accurate. The
attachment was a copy of a letter from the GMC informing Dr Merabet that concerns
had been raised and were being investigated.
22.
The tribunal considered the email and attached letter sent by Dr Merabet to
Ms A and compared it to the original letter of 15 December 2014 produced by the
GMC. It is clear that the date is absent from the top of the letter sent by Dr Merabet.
It is also clear that the two other sentences in the allegation have been obscured.
23.
The tribunal found that whilst the date at the top of the letter could be
deemed to be missing due to a photocopying or scanning error, the missing
sentences are in the body of the letter and cannot be attributed to such an error.
However, the obscured information in the body of the letter contains dates by which
Dr Merabet is requested to respond to the GMC, thus indicating the letter was
written in December 2014.
24.
The tribunal found that Dr Merabet deliberately obscured all indications of a
date in the letter in order that it appeared that the investigation had been only been
opened since his face to face interview to suggest that he was not under
investigation when he completed the application process.
25.
In the absence of any other explanation, the tribunal found that the obscured
sentences and the date were redacted intentionally by Dr Merabet. The tribunal
found this paragraph proved in its entirety.
Paragraph 4b
at 13:50 you sent an email to Person A attaching the GMC Letter where
you had deliberately:
i. amended the date at the top of the GMC Letter to ’31 Mars
2015’; Found proved
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
ii. obscured the sentences set out in paragraph 4(a)(ii-iii); Found
proved
26.
The tribunal accepted Ms A’s evidence that upon receiving the letter from Dr
Merabet, she became concerned that the top of the letter was missing and therefore
the letter could not be dated. She requested, by email, a further copy of the letter
‘with the date asap as we cannot proceed without it.’ The tribunal has seen this
email and the response from Dr Merabet which stated ‘as discussed with the date.’
Dr Merabet attached a further copy of the letter. Ms A confirmed the letter as
accurate and the tribunal again compared it to the original.
27.
The date at the top of the second letter produced by Dr Merabet cites the
date as ’31 Mars 2015’. This is clearly not an accurate reproduction of a GMC letter
as all GMC correspondence is sent in English and that was not the true date of the
letter. The tribunal has no doubt that this date has been altered.
28.
The tribunal also found that the same sentences as found in paragraph 4a of
the allegation are still obscured in a way that would lead a reader to believe that
nothing had been there. It found that this is again a deliberate act by Dr Merabet as
to now disclose these sentences, with reference to December 2014 dates, would
have fatally undermined his attempt to date the letter in March 2015. The tribunal
noted that the same distinct line can now be found under the ‘new’ date, indicating
that Dr Merabet simply added the date, mistakenly in his native language of French
on to the earlier redacted form of the GMC letter that he had sent earlier.
29.
The tribunal found this paragraph proved in its entirety.
Paragraph 4c
at 14:18 you sent an email to Person A attaching the GMC Letter
where you had deliberately obscured the sentences set out in
paragraph 4(a)(ii-iii). Found proved
30.
The tribunal heard evidence from Ms A that she became suspicious of the
authenticity of the second letter emailed by Dr Merabet at 13.50 when she saw the
date was written in French and not in English. Ms A informed the tribunal that she
contacted Dr Merabet to discuss the letter and in this telephone call Dr Merabet
admitted to her that the letter was a forgery. Ms A informed the tribunal that he
then sent her another copy of the letter, now with the correct date. Ms A believed at
this point that she had received an authentic copy of the original letter.
31.
The tribunal was presented with a copy of the third letter emailed by Dr
Merabet to Ms A at 14.18. It again compared this letter to the original and found
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
that the two sentences referring to dates in December 2014 were still obscured. The
tribunal rejected that this could have been an innocent oversight.
32.
The tribunal found this paragraph proved.
Paragraph 5
Your actions as set out in paragraphs 1- 4 above were:
i. misleading; Found proved 1, 2, 3, 4a, 4b and 4c
ii. dishonest. Found proved 1, 2, 4a, 4b and 4c. Found not
proved 3
33.
The tribunal was mindful of the test to be applied when determining
dishonesty. It considered whether the act or omission, on the balance of
probabilities, would be considered dishonest by the ordinary standards of reasonable
and honest people and whether, on the balance of probabilities, Dr Merabet realised
at the time at the time that his acts or omissions were dishonest by those standards.
34.
In respect of paragraph 1 the tribunal has found that Dr Merabet was asked a
straightforward and direct question to which he gave a false answer. The tribunal
found that Dr Merabet answered the question, knowingly giving an incorrect answer
in order to mislead the agency. The tribunal further found that in doing so, Dr
Merabet was misleading and must have realised at the time that he was being
dishonest.
35.
In respect of paragraph 2 the tribunal found that Dr Merabet was under a
duty to disclose the GMC investigation and that he failed to do so. The tribunal has
determined that Dr Merabet decided not to disclose this relevant information in order
to mislead the agency. Dr Merabet said in his email to GMC dated 15 April 2016
‘…this is because I was very disturbed by the previous GMC investigation and I was
afraid that I couldn’t find a job and practice again…’ The tribunal further found Dr
Merabet must have realised at the time that he was being dishonest.
36.
In respect of paragraph 3 the tribunal found that answering ‘no’ to the
question posed, when the correct answer would have been ‘yes’ was misleading and
did mislead the agency. The tribunal has examined the form and found the
formation and wording of the questions to be confusing. The form was entitled
‘Criminal Record Declaration (For Access to Government Owned Assets)’. When
directly addressing the issue of any regulatory investigation, asked the question in
respect of the NMC and HCPC only and did not mention the GMC. The tribunal found
that the separation of a question regarding ‘misconduct proceedings’ from another
question dealing with regulatory investigations, expressly limited to ‘NMC’ and
‘HCPC’, was confusing. It therefore found that reasonable and honest people would
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
not regard answering the second question in the negative to be dishonest. The
tribunal found this sub-paragraph not proved.
37.
In respect of paragraph 4a and 4b the tribunal found that Dr Merabet
undertook this course of action intentionally with the sole purpose of advancing his
employment prospects. It found that it was misleading, and did in fact mislead the
agency. The tribunal found that this action was dishonest and that Dr Merabet must
have realised at the time that he was being dishonest.
38.
In respect of paragraph 4c Ms A believed she had been given an un-redacted
copy of the letter by Dr Merabet. This was not the case. The tribunal found that Dr
Merabet continued to mislead the agency, this time to the extent of his deceit. The
tribunal finds that this was also dishonest and that Dr Merabet must have realised at
the time that he was being dishonest.
Determination on Impairment - 20/10/2016
1.
Having announced its findings of fact, the tribunal considered whether, on the
basis of the facts found proved, Dr Merabet’s fitness to practise is impaired by
reason of misconduct.
Submissions
2.
You submitted that consideration of impairment, because it did not relate to
clinical activities, was in this case, primarily a matter of public confidence, although
persistent dishonesty of a doctor could pose a future risk to public safety.
3.
You submitted that Dr Merabet had displayed a deep-seated propensity to be
dishonest, which was calculated and persistent. You submitted that it was not one
occasion of dishonest behaviour through panic or naivety, but there were many
different actions all designed to cover up the GMC investigation from a potential
employer. You reminded the tribunal that even when ‘cornered’ Dr Merabet did not
take the opportunity to ‘come clean’ but persisted in his attempted deceit.
4.
You submitted that Dr Merabet had shown a blatant disregard for the
regulatory process. What little remorse he may have shown for his action was
difficult to assess as it was given only at the very final stage, at which point he had
still failed to be completely honest.
5.
You referred the tribunal to GMP, citing paragraphs 65, 66, 71 and 77 as
being most relevant.
6.
You submitted that Dr Merabet’s conduct was so serious that only a finding of
impairment would be appropriate to uphold standards in the profession and to
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
maintain public confidence. You submitted that Dr Merabet’s fitness to practice is
impaired by reason of his misconduct.
Tribunal Decision
7.
In deciding whether Dr Merabet’s fitness to practise is currently impaired, the
tribunal bore in mind its statutory over-arching objective, which includes the
following:

Protecting, promoting and maintaining the health, safety and wellbeing of the
public;

Promoting and maintaining public confidence in the medical profession;

Promoting and maintaining proper professional standards and conduct for
members of the profession.
8.
The tribunal adopted a two-step approach, addressing firstly whether the
facts found proved amounted to misconduct which was serious, and then, if serious
misconduct was found, whether that past misconduct amounted to current
impairment. The tribunal accepted the Legal Assessors advice that dishonesty of a
doctor is one of the recognised categories of case that is likely to amount to
misconduct which is serious.
Misconduct
Dishonesty
9.
The tribunal considered the findings of dishonesty. The tribunal had regard to
GMP, in particular to paragraph 71, which states:
‘You must be honest and trustworthy when… completing or signing forms,
reports and other documents. You must make sure that any documents you
write or sign are not false or misleading.
a. You must take reasonable steps to check the information is correct.
b. You must not deliberately leave out any relevant information.’
10.
The tribunal further considered paragraph 65 of GMP to be relevant to this
case:
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
‘You must make sure that your conduct justifies your patients’ trust in you
and the public’s trust in the profession.’
11.
The tribunal found Dr Merabet’s failure to disclose his GMC investigation
during the application and interviewing process to be a serious breach of trust and
breach of his duty not to mislead by leaving out relevant information. The tribunal
further found that this was compounded by his subsequent and numerous fraudulent
reproductions of altered versions of the GMC letter in an attempt to cover up his
previous dishonesty.
12.
Furthermore, the tribunal considered paragraph 1 of GMP which sets out that
doctors must be ‘honest, trustworthy, and act with integrity’. The tribunal
determined that, by acting dishonestly, he failed to abide by one of the most
fundamental tenets of the medical profession.
13.
The tribunal determined that his proven dishonesty amounts to misconduct
which was serious.
Impairment
14.
In determining whether Dr Merabet’s fitness to practice is impaired by reason
of his misconduct, the tribunal considered any insight that Dr Merabet has shown
regarding his behaviour and any remedial steps he has taken.
15.
The tribunal found that the only indication of remorse shown by Dr Merabet
was contained in two emails. In his first email, dated 15 April 2016 and sent to the
GMC, Dr Merabet stated ‘I deeply and sincerely regret all that has happened…….my
behaviour was unacceptable.’ His second email, dated 18 April 2016, sent to the
GMC stated that he had undertaken the MDU CPD course of medical ethics and law.
He further stated ‘I sincerely declare that this behaviour will never happen again.’
16.
The tribunal is mindful that these emails are the only evidence from Dr
Merabet addressing insight, remediation, and the risk of repetition and were only
sent a year after Dr Merabet’s dishonesty had been discovered.
17.
The tribunal finds that Dr Merabet’s persistent dishonesty was serious and
that members of the medical profession would find it deplorable. His actions have
brought the medical profession into disrepute. The tribunal is not satisfied that Dr
Merabet has any real insight into his misconduct, or that it has been remediated.
The risk of repetition remains. The tribunal determined that a finding of impairment
was necessary to maintain proper professional standards and conduct for members
of the profession and to promote and maintain public confidence in the profession.
18.
The tribunal found that Dr Merabet’s fitness to practise is currently impaired
by reason of his misconduct
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
Determination on Sanction - 20/10/2016
1.
Having determined that Dr Merabet’s fitness to practise is impaired by reason
of his misconduct, the tribunal then determined what action, if any, to take in
relation to his registration. In doing so, it considered all of the evidence adduced,
together with your submissions on behalf of the GMC.
Submissions
2.
You reminded the tribunal of its findings on impairment. You submitted that
whilst it was difficult to demonstrate remediation for dishonesty, Dr Merabet could
have shown evidence of the course he had attended, as he indicated in his email to
the GMC. However, you submitted that Dr Merabet has not shown any evidence of
remediation or insight.
3.
You referred the tribunal to relevant paragraphs of the Sanctions Guidance
(SG) concerning dishonesty and erasure. You submitted that Dr Merabet’s
dishonesty was serious, persistent and covered up and could not be mitigated by
any evidence of clinical competence.
4.
You submitted that Dr Merabet’s actions were fundamentally incompatible
with continued registration and that erasure was the appropriate sanction.
You submitted that in order to maintain public confidence in the profession, the only
appropriate sanction in this case was one of erasure.
Tribunal considerations
5.
The issue of sanction is one for it to determine exercising its own judgement.
6.
In reaching its decision, the tribunal has taken account of the July 2016
edition of the SG.
7.
Throughout its deliberations, the tribunal was mindful of the over-arching
objective to protect the public as set out in the Medical Act 1983 (as amended).
That is:
a. to protect, promote and maintain the health, safety and wellbeing of the
public
b. to maintain public confidence in the profession
c. to promote and maintain proper professional standards and conduct for
members of that profession.
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
8.
The tribunal applied the principle of proportionality, weighing the public interest
against that of Dr Merabet. The tribunal recognised that the purpose of sanctions is
not to be punitive, although they may have a punitive effect, but to achieve the
over-arching objective.
9.
The tribunal has already given a detailed determination in respect of its
findings of fact and its decision on impairment. The tribunal has taken those matters
into account during its deliberations on sanction.
Dishonesty
1. 10. The tribunal has borne in mind the applicable guidance in relation to
“Considering dishonesty” at paragraphs 114 to 122. In particular, it has noted
paragraphs 114, 118 and 122 where it states that:
2.
“114 Good medical practice states that registered doctors must be honest
and trustworthy, and must make sure that their conduct justifies their
patients’ trust in them and the public’s trust in the profession.
3.
4.
5.
…
118 Although it may not result in direct harm to patients, dishonesty
related to matters outside the doctor’s clinical responsibility (eg providing
false statements or fraudulent claims for monies) is particularly serious. This
is because it can undermine the trust the public place in the medical
profession. Health authorities should be able to trust the integrity of doctors,
and where a doctor undermines that trust there is a risk to public confidence
in the profession. Evidence of clinical competence cannot mitigate serious
and/or persistent dishonesty.
…
122 Dishonesty, if persistent and/or covered up, is likely to result in
erasure.”
No Action
11.
In coming to its decision as to the appropriate sanction, if any, to impose in
this case, the tribunal first considered whether to conclude the case by taking no
action.
12.
The tribunal determined that, in view of the serious nature of its findings on
impairment, taking no action would not be sufficient to uphold the over-arching
objective. It found that there were no exceptional circumstances to justify taking no
action in this case.
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
Conditions
13.
The tribunal next considered whether it would be sufficient to impose
conditions on Dr Merabet’s registration. Any conditions imposed would need to be
appropriate, proportionate, workable and measurable.
14.
The tribunal has determined that a period of conditional registration would
not adequately reflect the serious nature of his misconduct, nor does it find that any
conditions could be formulated to address his dishonesty and protect public
confidence in the profession.
15.
The tribunal concluded that the imposition of conditions would not be
sufficient to uphold the over-arching objective.
Suspension
16.
The tribunal next considered whether it would be sufficient to suspend Dr
Merabet’s registration. In so doing, the tribunal has noted paragraph 86 of the
Sanctions Guidance, which states that:
‘Suspension will be an appropriate response to misconduct that is so serious
that action must be taken to protect members of the public and maintain
public confidence in the profession. A period of suspension will be
appropriate for conduct that is serious but falls short of being fundamentally
incompatible with continued registration’.
17.
It has also noted paragraph 87 which states that:
‘Suspension may be appropriate, for example, where there may have been
acknowledgement of fault and where the tribunal is satisfied that the
behaviour or incident is unlikely to be repeated. The tribunal may wish to see
evidence that the doctor has taken steps to mitigate their actions.’
18.
This case involves dishonesty and the tribunal is mindful that the findings of
dishonesty made against Dr Merabet are serious. The tribunal is also mindful that
dishonesty is difficult to remediate and it is even more difficult to demonstrate such
remediation. The tribunal considers that until Dr Merabet is able to acknowledge and
accept that his dishonesty undermines public confidence in the profession, he will
not develop the necessary insight which will enable him to remediate.
19.
The tribunal has determined that a period of suspension would not be
adequate or appropriate to reflect the seriousness of his misconduct nor would it
sufficiently uphold proper professional standards and maintain public confidence in
the profession.
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
Erasure
20.
In reaching its decision, the tribunal considered the relevant factors at
paragraph 103 of the SG:
‘Any of the following factors being present may indicate erasure is appropriate (this
list is not exhaustive).
a.
A particularly serious departure from the principles set out in Good
medical practice where the behaviour is fundamentally incompatible with
being a doctor.
b.
A deliberate or reckless disregard for the principles set out in Good
Medical Practice and/or patient safety.
c…..
d…..
e…..
f…..
g….
h.
Dishonesty, especially where persistent and/or covered up…
i.
….
j.
Persistent lack of insight into the seriousness of their actions or the
consequences.’
21.
The tribunal considered these factors to be present in this case.
22.
The tribunal has determined that Dr Merabet’s actions are fundamentally
incompatible with continued registration. It found his dishonest behaviour to be
persistent and calculated and a breach of one of the fundamental tenets of the
medical profession. Dr Merabet has failed to demonstrate that he has remediated his
dishonesty and has not demonstrated any real insight into his misconduct. As such
the tribunal cannot be confident that this behaviour will not be repeated.
23.
The tribunal has determined that erasure from the medical register is
proportionate and is the only sanction that will fulfil the over-arching objectives of
maintaining public confidence in the profession and promoting and maintaining
proper professional standards and conduct for members of that profession.
MPT Dr Merabet
Record of Determinations –
Medical Practitioners Tribunal
24.
The effect of this direction is that, unless Dr Merabet exercises his right of
appeal, his name will be erased from the Medical Register 28 days from when
written notice of this determination has been served upon him. A note explaining
his right of appeal will be sent to him.
Determination on Immediate Order - 20/10/2016
1.
Having determined that Dr Merabet’s name should be erased from the
Medical Register, the tribunal has now considered, in accordance with Section 38(1)
of the Medical Act 1983 as amended, whether it should suspend his registration with
immediate effect.
2.
You submitted that an immediate order is required, given the tribunal’s
findings, in order to maintain public confidence in the medical profession.
3.
The tribunal has had regard to paragraphs 166 and 167 of the SG which
state:
‘166 The tribunal may impose an immediate order if it determines that it is
necessary to protect members of the public, or is otherwise in the public
interest, or is in the best interests of the doctor…
167 An immediate order might be particularly appropriate in cases where…
For example… immediate action must be taken to protect public confidence in
the medical profession.’
4.
The tribunal has determined that given the seriousness of its findings in
relation to the dishonesty, it is necessary for the maintenance of public confidence in
the profession to impose an immediate order of suspension.
5.
The substantive direction for erasure, as already announced, will take effect
28 days from when notice is deemed to have been served upon Dr Merabet, unless
he lodges an appeal in the interim. If he does lodge an appeal, the immediate order
for suspension will remain in force until the appeal is determined.
6.
That concludes this case.
Confirmed
Date 20 October 2016
MPT Dr Merabet
Dr Janet Nicholls, Chair