PUBLIC RECORD - MPTSDr Muhammad said that although he knew it was wrong he felt that he had no choice but to honour his additional shifts on Saturday 23 November and Sunday 24 November

Record of Determinations –

Medical Practitioners Tribunal

MPT: Dr MUHAMMAD 1

PUBLIC RECORD Dates: 03/08/2020 - 05/08/2020 17/08/2020

Medical Practitioner’s name:

Dr Atif MUHAMMAD

GMC reference number: 7066440

Primary medical qualification: MBBS 2004 Punjab University - King Edward Medical College

Type of case Outcome on impairment Restoration following administrative erasure

Summary of outcome

Restoration application granted. Restore to Medical Register.

Tribunal:

Legally Qualified Chair Mr Stephen Killen

Medical Tribunal Member: Dr Barry Adams-Strump

Medical Tribunal Member: Dr Paolo De Marco

Tribunal Clerk: Miss Evelyn Kramer

Attendance and Representation:

Medical Practitioner: Present and represented

Medical Practitioner’s Representative: Ms Alexandra Felix, Counsel, instructed by Hill Dickinson

GMC Representative: Ms Susanna Kitzing, Counsel

Attendance of Press / Public In accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 the hearing was held in public.



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Overarching Objective Throughout the decision making process the tribunal has borne in mind the statutory overarching objective as set out in s1 Medical Act 1983 (the 1983 Act) to protect,

promote and maintain the health, safety and well-being of the public, to promote and maintain public confidence in the medical profession, and to promote and maintain proper professional standards and conduct for members of that profession. Determination on Restoration – 17/08/2020 1. This Tribunal has convened to consider Dr Muhammad’s application for his name to be restored to the Medical Register in accordance with Section 41 of the Medical Act 1983 (as amended) and Rule 24 of the General Medical Council (Fitness to Practise) Rules 2004 (as amended) (‘the Rules’). This is Dr Muhammad’s first

restoration application. Background 2. Dr Muhammad graduated from King Edward Medical College, Lahore, Pakistan in 2004. He started working in the UK, at the Princess Royal University Hospital (PRUH), Orpington which is part of Kings College Hospital NHS Foundation Trust (‘the Trust’), in August 2013. At the time of his administrative erasure from the Medical Register, Dr Muhammad was working at the Trust as a Senior Clinical Fellow

in Post Acute Medicine and Respiratory Medicine. 3. Dr Muhammad’s name was erased from the Medical Register for administrative reasons on 3 October 2019, following his non-payment of his full Annual Retention Fee (ARF) which was due on 7 May 2019. Dr Muhammad’s direct debit payment for his ARF failed on 31 July 2019. Prior to his removal from the Medical Register, Dr Muhammad was issued with correspondence and notification of the failed direct debit; the General Medical Council’s (GMC) intention to erase his name from the Register; and ultimately the fact that Dr Muhammad’s name had been erased. These communications were issued to Dr Muhammad’s registered

address, to his registered email address and by text message to Dr Muhammad’s registered mobile telephone number. 4. As a result of his erasure, Dr Muhammad has been suspended from his post, however he remains employed by the Trust. Additional Concerns 5. Following his administrative erasure, the GMC identified additional concerns

about Dr Muhammad’s fitness to practise, which were contained within a ‘particulars of allegation’ document, as follows:



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‘1. From October 2019 to November 2019 you practised as a medical

practitioner during which time you were not Registered with the

General Medical Council.

Admitted by Dr Muhammad

2. On 23/11/2019, 24/11/2019 and 25/11/2019 you practised as a

medical practitioner which was dishonest in that:

a. You knew that you were not Registered to practise;

b. In a telephone conversation on 22/11/2019 a member of staff of

the General Medical Council told you that you were not

Registered and that you must not treat any patients;

c. You nevertheless treated patients on 23/11/2019, 24/11/2019

and 25/11/2019.

Facts admitted by Dr Muhammad

Allegation of dishonesty not admitted

3. On 25/11/2019 you made a dishonest representation to your employer

to the effect that the General Medical Council had told you that day

(25/11/2019) that you must not practise.

Withdrawn by the GMC

4. Your conduct in paragraph 3 was dishonest in that the General Medical

Council had told you three days earlier, on 22/11/2019, to cease

practising immediately.

Withdrawn by the GMC

And in relation to the above your fitness to practice is impaired because of your misconduct.’

6. Before the GMC opened its case, the Tribunal was informed that the GMC was no longer seeking to prove paragraphs 3 and 4 of the particulars of allegation, having received and considered two further witness statements which were adduced by Dr Muhammad as additional evidence. 7. At the outset of the hearing, Dr Muhammad admitted paragraph 1 of the

particulars of allegation. He made factual admissions in respect of paragraph 2, however he did not accept that his actions were dishonest. The Tribunal acknowledged the admissions made by Dr Muhammad, however it did not formally



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announce them as having been found proved as this was not a hearing which required such action. The Outcome of Applications made during the hearing

8. Following the opening of the case by Ms Susanna Kitzing, counsel, on behalf of the GMC, it was requested by Ms Kitzing and Ms Alexandra Felix, counsel, on behalf of Dr Muhammad that, in considering the Rules and the Guidance for medical practitioners tribunals on restoration following voluntary or administrative erasure (March 2020) (‘the Guidance’), it would be appreciated if the Tribunal were to give an indication of its findings of fact in this case ahead of either party making submissions on impairment and Dr Muhammad’s application for restoration generally. 9. The Tribunal considered this joint application. It noted that while the Guidance states that it is not necessary to produce multiple determinations in a

restoration hearing, a Tribunal is not prohibited from giving an indication of its decision on particular matters if it considers that to be the appropriate course of action. It reminded itself that a Tribunal may deviate from guidance in circumstances in which it considers such deviation is necessary or appropriate. 10. In the particular circumstances of this case, the Tribunal considered that, in light of the factual background and the allegation of dishonesty, it would be appropriate to deviate from the Guidance in a limited way and to confirm to the parties its decision on the facts in advance of further submissions on impairment and

restoration. The Tribunal considered that this course was in the interests of justice and fairness to both parties. The Evidence 11. The Tribunal received evidence on behalf of the GMC in the form of a witness statement from Ms A, Voluntary Erasure, Restoration and Licensing (‘VERL’) Application Manager at the GMC. This statement also exhibited the documentary evidence relied upon by the GMC. The GMC called no witnesses to give oral evidence and relied on the documentary evidence provided to the Tribunal.

12. Dr Muhammad provided a witness statement, dated 6 July 2020, and also gave oral evidence at the hearing. Summary of Dr Muhammad’s evidence 13. Dr Muhammad stated that his registered address and telephone number were out of date by a number of years and that he had failed to update his records with the GMC in this regard. He stated that, although the email address to which the GMC

had issued correspondence regarding his registration and impending erasure, was current, it was one of two email personal addresses he held and he had not checked



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that email address for a period of five months. Dr Muhammad stated that he had initially seen that his direct debit had been successful in his online banking but that he had not subsequently received notification that it had later been rejected owing to insufficient funds in his account.

14. Dr Muhammad stated that he was entirely unaware of the fact that he had been erased from the Medical Register on 3 October 2019 until Friday 22 November 2019 when he was informed by a query raised by a coroner as to his current registration status. On being made aware of this issue, Dr Muhammad telephoned the GMC and was told by an adviser that he had been administratively erased and that he must not practise as a doctor in the UK. 15. Dr Muhammad stated that, on receiving this information at approximately 3:40pm, he made immediate attempts to locate Dr B, Clinical Director of Post Acute Medicine, Mr C, General Manager of Post Acute Medicine and Mr D, Dr Muhammad’s

line manager but discovered they had already left for the weekend. He stated that he was in a state of panic and terror and that he did not know what to do. Dr Muhammad said that although he knew it was wrong he felt that he had no choice but to honour his additional shifts on Saturday 23 November and Sunday 24 November 2019 as he felt that there was no one else to ask to cover and he felt a sense of obligation to his patients. He acknowledged that he knew he should not have worked at Orpington Hospital on 23 and 24 November 2019 but told the Tribunal that having accepted the shifts before learning that he was no longer on the Medical Register, he could not think of what to do other than to work them as

previously agreed. He said that he did this because he had a duty to his patients and did not want them to suffer. Dr Muhammad stated that he made no attempt to arrange for alternative cover for the weekend shifts. 16. Dr Muhammad told the Tribunal that he could not specifically recall the events of the morning on 25 November 2019, but he explained that, having been informed that his educational supervisor, Dr E, was unable to see him until later that day, it was likely that he participated in a ward round. 17. On seeing his line manager and educational supervisor later that day to

inform them about his lapsed registration, Dr Muhammad was immediately suspended by the Trust. Dr Muhammad told the Tribunal how he views the situation with hindsight and how he would act differently if a similar situation occurred again. Dr Muhammad told the Tribunal that he was paid for his weekend shifts at the Orpington Hospital but that the money was never a consideration in why he worked those shifts without registration. He told the Tribunal that his motivation for working on 23 and 24 November was to ensure patient care and because he had accepted responsibility for the Orpington Hospital wards.

18. Dr Muhammad told the Tribunal about his personal circumstances in the lead up to his administrative erasure from the Medical Register, which included increased



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familial responsibilities and financial strains and a lengthy and complicated application for both Dr Muhammad and his family in respect of their right to remain in the UK. In the circumstances, Dr Muhammad stated that he had made an administrative oversight in respect of his registration.

19. Dr Muhammad told the Tribunal that he accepted that his actions were wrong from the outset, that he was entirely at fault, that he had addressed and streamlined his personal administration and that he would act differently if a similar situation occurred again. In particular, he would never practise medicine if the situation ever arose again whereby he was not registered with the GMC. 20. In addition, the Tribunal received evidence on behalf of Dr Muhammad in the form of witness statements from Mr D, Service Manager for the Trust, dated 6 July 2020 and 1 August 2020, which contained the following:

6 July 2020

…4. At approximately 2pm on Monday 25th November, [Dr E] (Clinical Lead for Respiratory Medicine), informed me that Dr Atif Muhammad had a problem with his GMC registration.

5. As background. Dr Atif Muhammad is a Trust Grade Registrar in Respiratory Medicine working on a fixed term contract. [Dr E] explained that the Bereavement Office had advised Dr Muhammad on Friday 22nd November that his GMC registration had lapsed. [Dr E] further explained that Dr Muhammad had subsequently been in contact with the GMC and that the reason why his registration had lapsed was -due to non-payment of fees.

6. [Dr E] informed me that Dr Muhammad's direct debit payment to the GMC had failed and Dr Muhammad did not receive notification from the GMC as he had not updated the GMC with his change of address and contract [sic] details. [Dr E] was asking me for advice as to what we could do to expedite Dr Muhammad's registration.

7. I informed [Dr E] that this was a serious matter and that Dr Muhammad should not have been seeing patients. Early that day I had been advised that Dr Muhammad was off sick, but following my conversation with [Dr E], I clarified that he was actually in work and had been seeing patients. I was also aware that Dr Muhammad had been working over the weekend at Orpington Hospital.

8. Following my conversation with [Dr E], I checked the GMC on line register that showed his status as "Not Registered - Administrative Reason". I called the GMC helpline, and whilst they were unable to discuss Dr Muhammad's circumstances, they advised that due to the time elapsed; he would not be



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eligible for fast track registration and would need to complete the full registration process. At this point, I noted that his registration had lapsed on 3rd October 2019.

9. I immediately informed [Mr C] (General Manager for Post-Acute Medicine) and [Dr B] (Clinical Director for Post-Acute Medicine).

10. [Dr B], [Mr C] and I met with Dr Muhammad at approximately 3pm. During this meeting Dr Muhammad explained that he had contacted the GMC on the afternoon of Friday 22nd November 2019 after discovering a concern regarding his registration, and that he was informed that as he was no longer registered he should not work as a doctor.

11. Dr Muhammad explained that he was unable to find [Dr E] or [Dr B] to inform them. Dr Muhammad said he made the decision to cover bank shifts on the Orpington site at the weekend, as he was aware it would be impossible to find alternative cover at short notice. He believed this was the right thing to do at the time of making his decision. The meeting concluded with Dr Muhammad sent home.

…

13. Whilst, as a non-clinician, I am unable to comment on Dr Muhammad's clinical competency. However, to the best of my knowledge, I am not aware of any concerns, complaints or adverse incidents regarding the care he provides to patients. If I, or one of my family or friends had the misfortune of needing medical attention I would have no reservations if that care were to be provided by Dr Muhammad.

14. Dr Muhammad has a pleasant and humble manner; he is always courteous and respectful towards his colleagues. He is reliable and hardworking, always willing to help – often beyond his normal duties. I have no concerns regarding his honestly and probity, and I am not aware of any concerns raised by others…

1 August 2020

…4. On Monday 25 November, at approximately 2.00p.m., [Dr E] came to see me.

5. [Dr E] informed me that he had a meeting with Dr Muhammad earlier that day. [Dr E] told me that Dr Muhammad contacted the GMC on Friday 22 November 2019 and Dr Muhammad was told by the GMC his GMC registration had lapsed and that he had to cease working immediately because he was not registered.



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6. After my meeting with [Dr E], I received an e-mail from Dr Muhammad at 14.13. In the e-mail, Dr Muhammad set out what had happened in relation to his GMC registration and that he had been practising without being registered since 5 October 2019.

7. As detailed in my first witness statement, dated 6 July 2020, [Dr B], [Mr C] and I met with Dr Muhammad at approximately 3.00p.m. on 25 November 2019 and Dr Muhammad gave us an oral account of what had happened.

8. I would like to clarify that before Dr Muhammad sent me the e-mail on 25 November 2019 @ 14.13, I was aware that Dr Muhammad contacted the GMC on Friday 22 November 2019 and he was told by the GMC his registration had lapsed and to stop work immediately on the same day. I was not under the impression or made to believe by Dr Muhammad that he was told by the GMC to stop working on 25 November 2019…

21. The Tribunal also received a testimonial from Dr E, Consultant in Respiratory and General Medicine at the Trust, dated 28 June 2020 and a statement dated 3 August 2020, in which the following was stated: 28 June 2020

…I have known Dr Atif Mohammed for at least 2 years and I have been his clinical supervisor initially as junior clinical fellow and later as staff grade in medicine. Throughout he has been an excellent team player and has been a reliable as well as dependable team member. He has gone out of his way to help and support the middle grade on call rota and ward cover in times of emergencies.

He has shown excellent clinical skills and is well liked by both his patients and peers. With regards to his clinical competencies he has shown steady good progress and has been described as safe pair of hands with no clinical issues raised.

It has been unfortunate that he had let his GMC registration lapse and informed us of the same on 25th November 2019 that he was instructed by GMC not to work just prior to the preceding weekend. Accordingly, we immediately instructed him to go off work and follow GMC’s advice. He was very remorseful, apologetic and at the same times distressed by the whole incident. In subsequent meetings as part of local investigation, he has shown insight and regrets that he had let this happen due to circumstances. Despite being separated from his family, he has been determined to deal with this and wait for getting this issue sorted.



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Being a reliable member of medical team, he has been supporting the medical rota on number of occasions and would be a valuable asset for team. Indeed, we hope that he would be back to clinical work at the earliest and wish him luck…

3 August 2020

…3. At approximately 10.00a.m. on 25 November 2019, I was conducting a Ward Round and Dr Atif Muhammad approached me and said that he needed to speak to me about a matter. I said that I needed to finish my Ward Round and suggested that we meet between 12.00 – 1.00p.m. that day.

4. Once my Ward Round had finished, I then met with Dr Muhammad at approximately 12.30p.m.

5. Dr Muhammad told me that he was contacted by the Bereavement office and subsequently had spoken to a GMC representative on Friday 22 November 2019. Dr Muhammad said that the GMC representative informed him that his GMC registration had lapsed due to non-payment of fees and instructed him to stop working immediately. I was aware that if a doctor’s GMC registration lapses, they should cease to practice immediately unless and until they are registered.

6. I was then informed by Dr Muhammad that he continued to work over the weekend of 23-24 November 2019 because he was unable to inform the appropriate people and he did not want to let patients down. This was the first time I was made aware that Dr Muhammad had worked over the weekend in contravention of what he was told by the GMC the preceding Friday.

7. I recall that Dr Muhammad was extremely stressed and remorseful at this meeting.

8. I explained to Dr Muhammad that what had happened was serious. I advised Dr Muhammad to e- mail our Service Manager, [Mr D] as well as Clinical Director, [Dr B], to confirm what the GMC had told Dr Muhammad and to explain what had happened. I had instructed him to stop working immediately.

9. After our meeting had finished, I then spoke to [Mr D] and I told him what Dr Muhammad told me that day.

10. Dr Muhammad sent an e-mail to [Mr D] on 25/11/2019 at 14.13 after our meeting had finished and I was copied into it. I have reviewed the e-mail again and confirm that I understood the position to be as he had told me



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when we spoke; that he had been told by the GMC on 22 November not to work…

22. The Tribunal has taken into account all the documentary evidence provided by both parties. This evidence included, but was not limited to:

• Referral to Fitness to Practise for Further Investigation form, completed by a

GMC Contact Centre Advisor on behalf of Dr Muhammad, dated 22 November 2019;

• UD8 Form, Provision of Medical Services Statement completed by Dr B,

Clinical Director of Post Acute Medicine at Kings College Hospital NHS Foundation Trust, dated 6 January 2020;

• Email correspondence between Dr B and the VERL Team, dated 27 January 2020;

• Email correspondence between Dr Muhammad and the VERL Team, various

dates; • Dr Muhammad’s Certificate of Good Standing from the Pakistan Medical

Commission, issued 27 January 2020; • Email correspondence between the Pakistan Medical Commission and the

VERL Team, verifying the Certificate of Good Standing, dated 4 February 2020;

• Dr Muhammad’s two-part mitigation statement presented to the Trust during his disciplinary hearing, dated February 2020;

• Outcome of Disciplinary Hearing letter addressed to Dr Muhammad, dated 6

February 2020; • GMC email correspondence confirming referral to Fitness to Practise, various

February 2020 dates; • Dr Muhammad’s Application for Restoration form, submitted 10 January 2020;

• Screenshots from GMC database Siebel confirming correspondence sent to Dr Muhammad about his unpaid direct debit and ARF being overdue;

• Copies of the letters issued to Dr Muhammad by email and post about his

ARF, various July – September 2019 dates; • Letter issued by post confirming removal from the Register for non-payment

of ARF, dates 3 October 2019; • Email correspondence between Dr Muhammad and GMC Investigation Officer,

dated 5 and 9 April 2020;

• Investigation Report and Appendices presented at the Trust Disciplinary Hearing, dated 24 January 2020;

• References from a number of Dr Muhammad’s previous colleagues, various June and July 2020 dates;

• Continuing Professional Development (CPD) completed by Dr Muhammad, various 2020 dates;

• Email correspondence between GMC and Dr F, Acting Corporate Medical Director for Professional Practice for the Trust, various March 2020 dates;

• A chronology



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Submissions on the Facts Submissions on behalf of the GMC

23. Ms Kitzing, on behalf of the GMC, reminded the Tribunal that Dr Muhammad’s admissions in this case were not formal admissions but were agreement to the particulars of allegation brought by the GMC. Ms Kitzing submitted that there were only two matters to be resolved by the Tribunal, the first being whether or not Dr Muhammad had practised as a medical practitioner on 25 November 2019 by participating in ward round. Ms Kitzing submitted that having participated in a ward round, Dr Muhammad had practised as a medical practitioner. 24. The second consideration, which Ms Kitzing submitted was the crux of the case, was whether Dr Muhammad’s actions, in working on 23, 24 and 25 November

2019 were dishonest. She submitted that Dr Muhammad’s actions were dishonest and referred the Tribunal to the test to be applied in this case as laid down in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 (‘Ivey’ ). Ms Kitzing submitted that Dr Muhammad was candid in his evidence and accepted that he could have done more to tell those people in the Trust with supervisory or managerial capacity over him about his registration lapsing. She submitted that Dr Muhammad did not inform anyone about this issue before 25 November 2019 because he knew that he would be told he should not work the weekend shifts he had agreed to and did not want to hear that. Further, she submitted that the question of motivation was a side issue

rather than a determinative factor when considering dishonesty in the circumstances of this case. 25. Ms Kitzing submitted that in choosing not to tell those supervising and managing him at the Trust before 25 November 2019, and in continuing to work for three further days after being told by the GMC to cease practising, Dr Muhammad had acted dishonestly and knew he was acting dishonestly. Ms Kitzing accordingly submitted that the subjective test set out in Ivey was met. She submitted that, in applying the objective test from Ivey, it would be appropriate to conclude that a reasonable, ordinary, decent observer, knowing that Dr Muhammad had been

removed from the Medical Register and knowingly working without registration despite being told to cease by his regulator, would consider Dr Muhammad’s actions to be dishonest. Submissions on behalf of Dr Muhammad 26. Ms Felix, on behalf of Dr Muhammad, reminded the Tribunal of Dr Muhammad’s evidence and confirmed that he admitted that he worked on 25 November 2019, but had merely sought to explain the limited way in which he had

worked that day as compared to the shifts he had completed at Orpington Hospital on 23 and 24 November 2019.



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27. Ms Felix agreed with Ms Kitzing that dishonesty was the crux of this case. She reminded the Tribunal that, having raised new matters and suggested that Dr Muhammad’s fitness to practise is impaired, the burden is on the GMC to prove its case on the balance of probabilities. Ms Felix submitted that, while the standard of

proof is a single standard, the more serious an allegation against a practitioner, the more cogent the evidence is required to be. 28. Ms Felix submitted that it was appropriate for a good character direction to be given in this case. This was not opposed by the GMC and it was confirmed that Dr Muhammad had no previous regulatory proceedings or findings against him. Ms Felix stated that such a direction was relevant and could be given considerable weight as it went to Dr Muhammad’s credibility and whether his evidence is to be believed. She submitted that such a direction also went towards Dr Muhammad’s propensity to commit such behaviour as no such matters had ever been raised before. She stated

that it was relevant for the Tribunal to consider both the Trust’s own disciplinary investigation and outcome and the testimonials provided on Dr Muhammad’s behalf which, she submitted, spoke to his clinical practice and that he is thoughtful, remorseful and has demonstrated insight. 29. In referring to Ivey, Ms Felix submitted that there is no dispute from Dr Muhammad that he knowingly worked on the 23, 24 and 25 November 2019 when he was not registered to do so. She submitted that such knowledge in itself was not an acceptance of dishonesty. Ms Felix submitted that there was no evidence before

the Tribunal to suggest that Dr Muhammad’s motives in working without registration on 23 and 24 November 2019 were anything other than altruistic. She submitted that such motive is not a side issue and was relevant to consideration of Dr Muhammad’s state of mind, which at the time was ‘panicked’. Ms Felix reminded the Tribunal of the other evidence from the Trust. She invited it to conclude, in considering the objective test as set out in Ivey, that a reasonable person, knowing all the circumstances, including Dr Muhammad’s state of panic and knowing that he wanted to work to look after patients, would not consider Dr Muhammad’s actions to have been dishonest. Accordingly, Ms Felix submitted that the Tribunal should find the dishonesty alleged in this case not proved.

30. Additionally, Ms Felix indicated that Dr Muhammad remains employed by the Trust following its disciplinary own proceedings. The Tribunal’s Approach 31. The Tribunal considered all of the evidence it had read and heard as well as the submissions of both parties in first determining the facts of this case.

32. Throughout its deliberations, the Tribunal considered the overarching objective, which includes the need to:



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• protect, promote and maintain the health, safety, and well-being of

the public;

• promote and maintain public confidence in the profession; and • promote and maintain proper professional standards and conduct

for members of the profession.

33. In reaching its decision on the facts, the Tribunal has borne in mind that the burden of proof rests on the GMC and it is for the GMC to prove what it has alleged. Dr Muhammad 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. 34. In respect of the alleged dishonesty on the part of Dr Muhammad, the Tribunal applied the test laid down by the Supreme Court in Ivey, which states:

When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held.

When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.

The Tribunal’s Decision on the Facts Paragraph 1 35. The Tribunal accepted that Dr Muhammad’s admissions, while not formal admissions, were clear acknowledgements by him that he practised without GMC

registration between October and November 2019. Accordingly, it was satisfied that paragraph 1 of the particulars of allegation was proved. Paragraph 2 36. The Tribunal again accepted Dr Muhammad’s admissions that he knowingly practised without GMC registration and treated patients on 23, 24 and 25 November 2019 despite being told by a GMC member of staff that he was not registered and must not treat any patients. The Tribunal noted that the extent of Dr Muhammad’s



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clinical practice on 25 November 2019 was limited but it accepted that completing a ward round did amount to treating patients. 37. The Tribunal noted that Dr Muhammad did not accept that his actions in continuing to practise without registration for three days were dishonest. It noted

that in the particulars of allegation, dishonesty was alleged in the stem of paragraph 2 and therefore required consideration for each sub-paragraph. In its deliberations, the Tribunal considered the matter of dishonesty with reference to paragraph 2 as a whole given the factual admissions made by Dr Muhammad. 38. In considering whether Dr Muhammad’s actions amounted to dishonesty, the Tribunal applied the first limb of the test set out in Ivey, and sought to ascertain, subjectively, Dr Muhammad’s actual state of mind as to the facts. 39. The Tribunal accepted that, while Dr Muhammad had practised for over seven

weeks without GMC registration, he was only made aware of this on 22 November 2019 and there was no evidence to suggest that he had knowingly been practising without registration during that period. The Tribunal therefore focused its consideration on the three days which Dr Muhammad knowingly working without GMC registration, on 23, 24 and 25 November 2019. 40. The Tribunal considered that Dr Muhammad was a credible witness. It also accepted that Dr Muhammad was of good character and noted the supportive testimonials provided by his colleagues at the Trust about his clinical competence

and his probity. 41. The Tribunal considered Dr Muhammad’s acceptance that, in working shifts on 23 and 24 November 2019 at Orpington Hospital and attending a ward round at PRUH on 25 November 2019, while knowing he did not hold registration with GMC, he had acted wrongly. It accepted his evidence that when he found out that his registration had lapsed on that Friday afternoon he had very little time in which to attempt to make alternative arrangements. The Tribunal noted that there was no allegation that Dr Muhammad had an ulterior motive for working on 23 and 24 November 2019 or on 25 November 2019 and it considered that there was no

evidence before it to suggest that Dr Muhammad’s actions in practising without registration were for monetary or any other personal gain. The Tribunal accepted Dr Muhammad’s evidence that, following the outcome of his call with the GMC, having been unable to speak to Dr B, Mr C, or Mr D on the Friday afternoon because he could not find them or they had already left for the day, Dr Muhammad felt compelled to complete the weekend shifts he had agreed to and believed that there was no one else who could step in. 42. The Tribunal noted that on 25 November 2019 Dr Muhammad did seek to

speak with those in supervisory and managerial roles at the Trust urgently and that



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he made them fully aware of the situation, as outlined in the statements of Dr E and Mr D. 43. The Tribunal concluded that, subjectively, while Dr Muhammad knew he was doing wrong by practising without registration, he believed he was doing so to meet

his contractual duty and to provide care to patients in the wards he had agreed to oversee. The Tribunal did not conclude, however, that Dr Muhammad himself considered his actions to be dishonest. 44. Having determined what Dr Muhammad’s actual state of mind as to the facts was at the time of events, the Tribunal went on to determine whether an ordinary decent person would consider Dr Muhammad’s actions to have been dishonest. The Tribunal considered that the ordinary decent person would be informed of all of the circumstances of this case, to include the timing of both the request made to Dr Muhammad to take the weekend shifts, the call he made to the GMC and the time

he spent waiting outside the offices of the Clinical Director and General Manager of the Post Acute Medicine Ward at the PRUH. The ordinary, decent person would also be aware of Dr Muhammad’s actions on 25 November 2019 when he sought out those in supervisory roles to urgently inform them of the position. 45. The Tribunal considered that the ordinary, decent person would conclude that, while having a made a significant error in judgement by knowingly continuing to practise without registration on 23, 24 and 25 November 2019, Dr Muhammad had done so, however unwisely or improperly, because he believed he needed to

ensure patient care. It concluded that the ordinary decent person, knowing the relevant circumstances of this case, would not conclude that Dr Muhammad had acted dishonestly. 46. Having applied both limbs of the test set out in Ivey and having concluded that Dr Muhammad’s actions though poorly judged were not dishonest, the Tribunal accordingly found paragraph 2 of the particulars of allegation not proved. 47. Having made its decision on the facts, the Tribunal verbally confirmed its findings and, following a break for parties to seek instruction, invited submissions on

current impairment and Dr Muhammad’s application for restoration. Submissions on Impairment and Restoration Submissions on behalf of the GMC 48. Ms Kitzing submitted that the GMC opposes Dr Muhammad’s application for restoration. She conceded that while the Tribunal had not found Dr Muhammad’s actions to be dishonest, the factual admissions made in both paragraphs of the

particulars of allegation by Dr Muhammad still amounted to serious misconduct and that Dr Muhammad’s fitness to practise is therefore impaired. Ms Kitzing submitted



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that the Tribunal was entitled to consider Dr Muhammad’s factual admissions from paragraph 2 of the particulars of allegation. She submitted that, unlike in a new substantive Medical Practitioners Tribunal hearing, the paragraph was not required to fall in its entirety following the Tribunal’s findings on dishonesty.

49. Ms Kitzing referred the Tribunal to relevant paragraphs of the Guidance and reminded the Tribunal of the wide test it is required to apply when considering restoration. Ms Kitzing submitted that Dr Muhammad’s admitted conduct was extremely serious behaviour that had the potential to put patients at risk when they were being treated by a doctor who was practising while unregistered. Ms Kitzing submitted that Dr Muhammad’s actions impacted on the public interest and that if patients knew that the doctor treating them was not on the Medical Register it would have raised concerns for them and been harmful for the profession as a whole. She submitted that Dr Muhammad’s actions at the time did not uphold the proper professional standards of conduct required. Ms Kitzing submitted that practising

while not on the Medical Register is a very serious matter and appropriate disapproval should be shown of such an action. 50. Ms Kitzing submitted that Dr Muhammad’s fitness to practise is impaired by reason of misconduct. She conceded that while Dr Muhammad had demonstrated some insight, this was not sufficient to warrant no finding of impairment. Ms Kitzing submitted that while the CPD completed by Dr Muhammad demonstrates how he has kept his clinical skills up to date, he has completed no courses that go to the heart of the issues in this case. Ms Kitzing submitted that Dr Muhammad had not

addressed the concerns about his communication, his actions when under pressure or his previous lack of engagement with his regulator. Accordingly, she submitted that while the misconduct in this case could be remedied, it had not been remedied in full at this stage. Ms Kitzing reminded the Tribunal that it is required to consider each limb of the overarching objective and perform a balancing exercise. She submitted that granting restoration in Dr Muhammad’s case would not be in the public interest, nor would it uphold proper professional standards. Ms Kitzing submitted that in carrying out this balancing exercise, restoration should not be granted.

Submissions on behalf of Dr Muhammad 51. Ms Felix submitted that, in considering the particulars of allegation, the Guidance is clear that only the proven matters can be considered when assessing current impairment. Ms Felix submitted, in agreement with the Legally Qualified Chair, that paragraph 1 of the particulars of allegation covers the period Dr Muhammad practised without registration and includes the three days he did so knowingly.

52. Ms Felix reminded the Tribunal that the GMC had not alleged poor communication on the part of Dr Muhammad. She submitted that while



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communication is a factor in how Dr Muhammad found himself in the situation that he did, it was not a proven concern. Ms Felix suggested a way to approach the Guidance and its deliberations to the Tribunal and took it through the possible stages of deliberation and made submissions on each. Ms Felix submitted that however ill-judged Dr Muhammad’s actions were, until 22 November 2019, he had no

knowledge that his GMC registration had lapsed. She submitted that, taking all of the factors into account, Dr Muhammad’s actions did not amount to misconduct that was serious, and invited the Tribunal to conclude that there was no impairment of Dr Muhammad’s fitness to practise and then move on to consider restoration. 53. Ms Felix submitted that, were the Tribunal to find misconduct, in considering impairment as set out in relevant case law, it should consider all the relevant factors before it. She submitted that the Tribunal should consider whether this was a case where Dr Muhammad’s actions amounted to an isolated error where risk of repetition was so remote that current fitness to practise could not be impaired. Ms Felix stated

that this was an isolated episode, that Dr Muhammad has had a harsh lesson following his administrative erasure and referral for Fitness to Practise proceedings. She stated that Dr Muhammad has sufficiently remediated for his actions and has demonstrated insight. Ms Felix reminded the Tribunal that Dr Muhammad had never disputed his shortcomings and that he had always accepted that he should have done more and acted differently in the circumstances. She submitted that the steps Dr Muhammad has taken since November 2019 (as outlined at paragraph 79) mean that he will not find himself in such a situation with his registration again and therefore, ‘terror’ will not affect his judgment again. Ms Felix submitted that Dr

Muhammad has kept his clinical skills and knowledge up to date and that he could be restored to the Register without any concern about that. 54. Ms Felix submitted that even if the Tribunal made a finding of impairment, in considering the overarching objective and performing the balancing exercise required, it would be appropriate to restore Dr Muhammad to the Register. She stated that it was in the public interest to keep an otherwise good doctor in clinical practice. Particularly one, she submitted, who poses no risk to patients, whose Trust wants him to return to work and who is a respiratory specialist which given the Covid-19 pandemic, should be considered a relevant factor too. Ms Felix went on to

make submissions about the time period it would be appropriate to set before Dr Muhammad could apply again for restoration should the Tribunal refuse his current application. The Tribunal’s Approach 55. Throughout its consideration of Dr Muhammad’s application for restoration, the Tribunal was guided by the approach laid out in the Guidance. The Guidance sets out at B1 that the test for the Tribunal to apply when considering restoration is:



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Having considered all the relevant information presented, is the doctor fit to practise having regard to each of the three elements of the overarching objective?

56. Having determined the facts, the Tribunal went on to consider whether Dr

Muhammad’s fitness to practise is currently impaired by reason of misconduct. In considering impairment, the Tribunal must first consider whether Dr Muhammad’s actions constitute serious misconduct and then whether Dr Muhammad’s fitness to practise is currently impaired. The Tribunal reminded itself that, in considering impairment, there is no burden or standard of proof and the decision of impairment is a matter for the Tribunal’s judgment alone. 57. The Tribunal must determine whether Dr Muhammad’s fitness to practise is impaired today, taking into account his conduct at the time of the events and any relevant factors since then such as whether the matters are remediable, have been

remedied and any likelihood of repetition. 58. The Tribunal reminded itself it should step back and balance its findings against whether restoration meets the overarching objective, carefully considering each of the three elements and acting in a way which:

• protects, promotes and maintains the health, safety, and well-being of

the public; • promotes and maintains public confidence in the profession; and • promotes and maintains proper professional standards and conduct

for members of the profession.

59. The Tribunal again took account of all the evidence before it, both oral and documentary. It has also considered the submissions made by Ms Kitzing on behalf of the GMC and those made by Ms Felix on behalf of Dr Muhammad in support of his application. The Tribunal’s Decision

Is Dr Muhammad’s fitness to practise currently impaired by reason of misconduct? Misconduct 60. The Tribunal considered Dr Muhammad’s admissions and the factual circumstances of this case. It reminded itself that while it had already found that Dr Muhammad’s actions were not dishonest, it was still required to determine whether the following amounted to misconduct that was serious:



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• Dr Muhammad allowed his registration with the GMC to lapse by not updating his contact details;

• Dr Muhammad unknowingly working without GMC registration between 3 October 2019 and 22 November 2019;

• Dr Muhammad, having been told he could not treat patients without registration on 22 November 2019, knowingly worked without registration on 23, 24, and 25 November 2019.

61. The Tribunal considered that all doctors have a fundamental duty to ensure that their registration with the GMC is renewed each year they wish to remain on the Medical Register. It further considered that all doctors have a duty to ensure that the contact details provided to the GMC, as their regulator, are correct and up to date. Taking this into account, the Tribunal concluded that Dr Muhammad was under

a personal duty to ensure his registration and contact details with the GMC were up to date. It was therefore the responsibility of Dr Muhammad, and Dr Muhammad alone, to ensure that his registration with the GMC was not allowed to lapse, and to be satisfied that at all times while practising medicine he was registered and entitled to do so. 62. The Tribunal accepted that Dr Muhammad was unaware that he was practising without registration between the date of his administrative erasure (3 October 2019) and the date he spoke with the GMC about his registration lapsing

(22 November 2019). The Tribunal noted Dr Muhammad’s evidence that, having learned that he had been erased, he still felt a sense of duty to his patients and responsibility to complete the shifts he had previously agreed to on 23 and 24 November 2019. 63. The Tribunal considered, however, that despite Dr Muhammad’s sense of obligation and panic, his actions in knowingly working without registration on 23, 24 and 25 November 2019, breaching a direct and very clear instruction from his regulator that he must not practise, were in no way appropriate and could not be justified.

64. The Tribunal considered that in knowingly practising without registration and going against a direction from the GMC, Dr Muhammad’s actions failed to uphold the proper professional standards required of all doctors and consequently risked public confidence in the profession. The Tribunal concluded that such actions constitutes a significant departure from the standards expected of a doctor and would be considered serious by other doctors. 65. Taking all of the above into account, the Tribunal concluded that Dr

Muhammad’s actions in allowing his registration to lapse, coupled with his actions in knowingly practising without registration and breaching a direction from his regulator, did amount to misconduct that was serious.



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Impairment 66. Having determined that Dr Muhammad’s actions amounted to misconduct, the Tribunal went on to consider whether his fitness to practise was currently impaired by reason of that misconduct.

67. The Tribunal reminded itself that a finding of impairment does not necessarily follow a finding of misconduct. It considered the evidence before it and the relevant steps Dr Muhammad has taken since he became aware of his administrative erasure. Insight and Remorse 68. The Tribunal had regard to the Guidance and considered the following paragraph to be particularly relevant to its consideration of Dr Muhammad’s insight and remorse:

B27 Factors that can be relevant to a doctor demonstrating genuine insight include, but are not limited to, evidence they have:

a considered the concern, understood what went wrong and accepted they should have acted differently

b demonstrated that they fully understand the impact or potential impact of their performance or conduct, for example by showing remorse (see below)

c demonstrated empathy for any individual involved, for example by apologising fully (see below) d taken steps to remediate and to identify how they will act differently in the future to avoid similar issues arising (see below).

69. The Tribunal accepted that Dr Muhammad had from the outset in November 2019 acknowledged and apologised for his actions. It noted that, in his written and

oral evidence, Dr Muhammad had demonstrated that he had reflected on the events and his own wrongdoing, had explained how he would act differently now, and how, in hindsight, he wished he had acted. The Tribunal noted that, in accepting his wrongdoing from the outset, Dr Muhammad had never sought to obscure the seriousness of his actions and had not compounded its seriousness by lying or seeking to cover up his lack of registration. Dr Muhammad’s only dispute with the particulars of allegation brought by the GMC was that he had acted dishonestly. 70. The Tribunal had regard to Dr Muhammad’s witness statement, dated 6 July

2020, in which he set out how he would act differently in the future:



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17. I understand that I should have emailed my supervisor, service manager and clinical director, and that I should have been aware of out of hours emergency support protocols for the trust. 18. Since then:

1) I will try and ensure that I convey any concerns that I have in the future through appropriate channels (including phone calls, emails and appropriate documentation). 2) I have already discussed the emergency out of hours trust policy with my service manager as I was advised in the outcome of the Trust disciplinary hearing. 3) I have ensured to have appropriate personal support to help me cope better with stress. I have used this time after November 25, 2019 to strengthen my personal relationships with my family and my close friends as a system of support.

71. The Tribunal noted that Dr Muhammad’s misconduct took place over a relatively short period and that on 25 November 2019, Dr Muhammad did seek to inform his supervisors and managers when they were available about his registration lapsing and his decision to practise on 23 and 24 November 2019. The Tribunal also

noted that Dr Muhammad has not practised medicine since 25 November 2019, following his exclusion from the Trust without pay. 72. The Tribunal had regard to the testimonials and references Dr Muhammad’s colleagues from the Trust had provided. In his reference in support, dated 28 June 2020, Dr E (Dr Muhammad’s Educational Supervisor) wrote:

[Dr Muhammad] was very remorseful, apologetic and at the same times distressed by the whole incident. In subsequent meetings as part of local investigation, he has shown insight and regrets that he had let this happen due to circumstances. Despite being separated from his family, he has been determined to deal with this and wait for getting this issue sorted. … Being a reliable member of medical team, he has been supporting the medical rota on a number of occasions and would be a valuable asset for team. Indeed, we hope that he would be back to clinical work at the earliest and wish him luck.



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73. In the witness statement provided by Mr D, Dr Muhammad’s line manager at the Trust, dated 6 July 2020, he wrote:

Dr Muhammad has a pleasant and humble manner; he is always courteous and respectful towards his colleagues. He is reliable and hardworking, always willing to help – often beyond his normal duties. I have no concerns regarding his honestly and probity, and I am not aware of any concerns raised by others.

74. The Tribunal considered Dr Muhammad’s remorse, reflections on his actions and his assurances of how he would act differently in the future. The Tribunal was satisfied that Dr Muhammad had demonstrated genuine remorse and regret for his actions. It noted again that Dr Muhammad had at no point acted for personal or financial gain. Further, the Tribunal was satisfied that Dr Muhammad had understood from the outset that his actions in practising without registration, though

well-meaning, were wrong. It considered that on this basis, Dr Muhammad had developed full insight into his misconduct since he ceased working as a doctor in November 2019. Remediation and risk of repetition 75. Having concluded that Dr Muhammad had developed full insight into his misconduct, the Tribunal went on to consider the steps he had taken to remediate. The Tribunal gave particular consideration to paragraph B30 of the Guidance:

B30 Remediation is where a doctor actively addresses concerns about their behaviour, skills, performance or health. Remediation can take a number of forms and, where successful, will weigh in favour of allowing restoration.

76. The Tribunal considered each of the relevant questions set out in the Guidance in turn when considering Dr Muhammad’s remediation. Are proven concerns about the doctor’s behaviour remediable? 77. The Tribunal agreed with the submissions of both parties that Dr Muhammad’s misconduct in this case was remediable. Have the findings about the doctor’s behaviour been remedied? 78. The Tribunal had regard to whether the remediation undertaken by Dr Muhammad was relevant, measurable and effective. 79. It noted that Dr Muhammad had set out in a number of different statements

the changes he had made to ensure his actions in practising without registration



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were not repeated. In his witness statement, dated 6 July 2020, Dr Muhammad stated that since these events he has been: a. Maintaining a single personal email account, which is now on my phone.

b. Daily review of all my email. c. Updating my details with the GMC. d. Maintaining a financial diary.

80. The Tribunal noted that there had been no concerns raised about Dr Muhammad’s clinical abilities, nor had it been suggested that his actions had put patients at any direct risk of harm. 81. The Tribunal considered that the matters before it constituted a single episode of misconduct arising from a lapse, albeit a serious lapse, in personal administration. It noted it had received no evidence to suggest there were any

concerns about Dr Muhammad’s administrative abilities in a clinical setting, nor had it received evidence of any similar failings in other settings. The Tribunal concluded that this single administrative lapse had had serious and significant consequences for Dr Muhammad, professionally, personally and financially. It considered that these consequences had clearly been understood by Dr Muhammad given his development of full insight and the steps he had taken to ensure that no similar situation with his registration could occur in the future. 82. The Tribunal was satisfied that Dr Muhammad, in making the changes set out

above (at paragraph 79), had learned a very salutary lesson and had successfully remediated for his misconduct. Are the concerns about the doctor’s behaviour, skills, or performance likely to be repeated? 83. The Tribunal took into consideration Dr Muhammad’s level of insight and its assessment of his remediation in determining whether there was a risk of repetition in this case. It considered that Dr Muhammad had demonstrated full insight and remediation into his misconduct. Further, it was satisfied that in being prevented

from practising medicine since November 2019, Dr Muhammad had been faced with the seriousness of his errors and had accordingly sought to prevent them from happening again. Therefore, the Tribunal considered that it was highly unlikely that Dr Muhammad would repeat his misconduct, and concluded that such a risk was very low. 84. Taking all of the above into account, the Tribunal concluded that given his full insight, remorse, remediation and very low risk of repetition, Dr Muhammad’s fitness to practise is not currently impaired.



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The steps the Dr Muhammad has taken to keep his medical knowledge and skills up to date 85. Having determined that his fitness to practise is not impaired, the Tribunal went on to consider whether Dr Muhammad’s medical knowledge and skills had

been kept up to date such that he could be restored to the Medical Register and be free to practise without restriction. 86. The Tribunal noted that Dr Muhammad has not had any clinical contact with patients for almost nine months. However, the Tribunal acknowledged the steps that Dr Muhammad had taken in completing numerous clinical CPD courses to keep his medical skills and knowledge up to date while suspended from the Trust. Further it noted that the Trust had expressed no concerns about Dr Muhammad returning to unrestricted practise and that Dr Muhammad’s colleagues were eager for him to return to work.

87. The Tribunal was therefore satisfied that Dr Muhammad was capable of returning to unrestricted practise as his medical knowledge and skills had been sufficiently kept up. Will restoration meet the overarching objective? 88. Having considered the specific concerns about Dr Muhammad’s fitness to practise and found that Dr Muhammad’s fitness to practise is not currently impaired,

the Tribunal went on to determine whether to grant Dr Muhammad’s restoration application. The Tribunal carefully balanced its findings against whether restoring Dr Muhammad to the Medical Register will meet the overarching objective, considering each limb separately. 89. The Tribunal had regard to the Guidance. It noted that Dr Muhammad did not meet any of the types of case set out as those in which restoration is generally unlikely to meet the overarching objective.

Protecting, promoting and maintaining the health, safety, and well-being of

the public 90. The Tribunal noted that there were no concerns about Dr Muhammad’s clinical competence. It was satisfied that in restoring Dr Muhammad to the Medical Register, this limb of the overarching objective would not be compromised. Promote and maintain public confidence in the profession 91. The Tribunal noted the specific facts of this case. It considered Dr

Muhammad’s full insight, his genuine remorse and his successful remediation. It also noted that the risk of repetition of any similar misconduct was very low given Dr



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Muhammad’s experience of both the Trust disciplinary hearing and these proceedings as a result of his administrative error. The Tribunal was satisfied that in restoring an otherwise good and competent doctor to the Medical Register, public confidence in the profession would be maintained.

Promote and maintain profession standards and conduct 92. The Tribunal noted that Dr Muhammad had been unable to practise for over eight months as a consequence of his actions. Having made a finding of serious misconduct, the Tribunal was satisfied that the seriousness of Dr Muhammad’s actions had been marked and, as indicated, that Dr Muhammad had learned a salutary lesson from this matter. The Tribunal was satisfied that in marking Dr Muhammad’s misconduct, it had discharged its duty to uphold and declare proper professional standards and conducts.

93. Further, the Tribunal concluded that to delay Dr Muhammad’s return to clinical practice any further would be disproportionate and would not itself uphold the requirements of the overarching objective. 94. The Tribunal considered whether an ordinary, well informed member of the public who is aware of all the relevant facts would be concerned to learn that Dr Muhammad had been allowed to return to practice. It concluded that an ordinary well informed member of the public would not be concerned about Dr Muhammad being allowed to return to clinical practice and, rather would consider it appropriate

that a good and competent doctor, who had addressed all of the concerns raised by his regulator, had been permitted to return to work. Conclusion 95. In conclusion, the Tribunal was satisfied that Dr Muhammad was a fit and proper person to be restored. Accordingly, it determined to direct that his name be restored to the Medical Register.

Confirmed Date 17 August 2020 Mr Stephen Killen, Chair

Documents

PUBLIC RECORD - MPTSDr Muhammad said that although he knew it was wrong he felt that he had no choice but to honour his additional shifts on Saturday 23 November and Sunday 24 November