PUBLIC RECORD. Record of Determinations Fitness to Practise Panel. Date: 12 January Medical Practitioner

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1 PUBLIC RECORD Date: 12 January 2015 Name of Medical Practitioner Dr Andrea HERMANN Primary medical qualification State Exam Med 1994 Rheinisch-Westfälische Technische Hochschule Aachen GMC reference number Type of case Review - Determination by other regulator Review - Misconduct Summary of outcome Conditions, 18 months. Review hearing directed Outcome on impairment Impaired Impaired Panel Medical Panellist (Chair) Lay Panellist Medical Panellist Legal Assessor Secretary to the Panel Professor David Katz Mr Nigel Westwood Dr Thivanka Wimalaratne Mr Peter Jennings Ms Angela Carney Attendance and Representation Medical Practitioner GMC Representative Attendance of Press / Public The hearing was all heard in public. Not present and not represented Mr Fraser Coxhill, Counsel 1

2 Determination on Service and Proceeding in Absence Mr Coxhill: 1. Dr Hermann is neither present nor represented at these proceedings. The Panel has seen the Notice of Review Hearing letter addressed to Dr Hermann s registered address and the Medical Practitioners Tribunal Service (MPTS) internal recorded delivery log dated 26 November It has also seen the signed Federal Express tracking record showing shipment on 27 November 2014 and the signed proof of delivery note dated 2 December The Notice of hearing letter was also sent to Dr Hermann via on 26 November Dr Hermann sent an on the same day in reply thus confirming that she was aware of this hearing. The Panel has also taken account of the correspondence between the General Medical Council (GMC) and Dr Hermann between 28 November 2014 and 10 December In the circumstances, the Panel is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules The Panel has noted that in Dr Hermann s dated 26 November 2014, she stated that she will not be attending the hearing and will not be represented. Dr Hermann did not request a postponement of the hearing in this and the Panel is satisfied that she is aware of the hearing and has decided not to attend. The Panel has borne in mind that, were it to adjourn today s hearing, there is no indication that Dr Hermann would be more likely to attend a future hearing. Given that Dr Hermann is aware of the hearing and has stated that she will not be attending the Panel has determined that the public interest would be best served by proceeding with the hearing in the absence of Dr Hermann today in accordance with Rule 31 of the Rules, and that no injustice would arise to any party through its doing so. Determination on application under Rule 20(3) 3. You made an application under Rule 20(3) to submit information arising from a telephone conversation between the GMC and Dr Hermann on 8 December You submitted that this information should be put before the Panel today. You told the Panel that the matter was referred to the Assistant Registrar who recommended that the information be put before the Panel. You also told the Panel that the GMC wrote to Dr Hermann on 6 January 2015 informing her that an application would be made for the note of the telephone call to be put before today s Panel. 4. In considering your application the Panel has borne in mind that under Rule 34 evidence must be relevant and fair. The misconduct found at the initial hearing was the failure to notify the GMC of the decision of the Irish Medical Council (IMC). The January 2012 Panel was satisfied that this was an oversight and not a calculated omission. In the telephone conversation on 8 December 2014 Dr Hermann is said to 2

3 have made inappropriate comments, apparently as a result of the distress resulting from these proceedings. The Panel is not persuaded that this conversation, regrettable as it may be, is of any relevance to whether there is continued impairment as a result of the original misconduct and determination. Furthermore, the Panel is of the view that although the telephone conversation took place on 8 December 2014, and was considered within the GMC, Dr Hermann was not informed until 6 January 2015, i.e. some three working days prior to the present hearing, that the matter would be raised. The Panel considers that Dr Hermann would not have had a reasonable opportunity to consider this information. As a consequence it would not be fair to Dr Hermann to allow the information to be admitted. 5. Accordingly, under Rule 34 and under Rule 20(3) the Panel rejects your application. Determination on Impairment Background 6. On 14 May 2010 a Fitness to Practise Committee of the IMC reported findings against Dr Hermann in relation to professional misconduct and poor professional performance. On 1 June 2010, the IMC found that Dr Hermann presented a risk to patients and imposed sanctions upon her registration. Dr Hermann subsequently appealed the sanctions imposed by the IMC but her appeal was rejected on 23 November Dr Hermann failed to inform the GMC that findings had been made against her by the IMC, or that sanctions had been imposed on her registration. Dr Hermann also did not inform the GMC that her appeal against the sanctions was dismissed. 7. In January 2012 a Fitness to Practise Panel of the MPTS convened to consider Dr Hermann s case. The 2012 Panel found that Dr Hermann s fitness to practise was impaired by reason of a determination by a regulatory body, namely the IMC, and by her misconduct. The 2012 Panel was satisfied that Dr Hermann s failure to notify the GMC about the IMC s findings amounted to misconduct, but accepted that the misconduct arose as a result of an oversight rather than as a calculated omission. That Panel found that she was engaging with the fitness to practise procedures of both the IMC and the GMC. That Panel was of the opinion that imposing conditional registration was the appropriate sanction, was sufficient to uphold proper professional standards and was also sufficient to protect patients. The conditions were imposed for a period of 36 months to provide an opportunity for Dr Hermann to remedy her deficiencies and to develop and demonstrate full insight into her misconduct. 8. In June 2012 Dr Hermann sent her Personal Development Plan to the GMC. There has been no evidence that this plan has been implemented. In several s 3

4 to the GMC Dr Hermann confirmed that she has not worked in the United Kingdom since the 2012 hearing. 9. The 2012 Panel stated that a panel reviewing this matter may be assisted by receiving the following information: Reports from Dr Hermann s workplace reporter(s) Testimonials from professional colleagues who can attest to Dr Hermann s conduct and clinical performance during the period of conditional registration Any evidence of Continuing Professional Development Evidence that Dr Hermann understands her obligations to her regulatory body. None of these documents has been received. Submissions 10. You submitted that Dr Hermann is not in breach of the conditions on her registration. You confirmed that in June 2012 she had forwarded her Personal Development Plan and provided the information relating to the IMC. You stated that thereafter she has provided little or no evidence or information attesting to whether she is safe to return to clinical practice. You also reminded the Panel that Dr Hermann has not provided any of the information recommended by the 2012 Panel. You submitted that in light of the lack of information the Panel must consider whether the concerns raised by the previous Panel have been addressed to the Panel s satisfaction. You also submitted that Dr Hermann has not demonstrated further evidence of insight into the nature of her deficiencies and misconduct. You stated that there is no evidence of Continuing Professional Development. You submitted that the Panel cannot be satisfied on the information before it today that Dr Hermann s situation has changed, much less improved, since January There remains a real risk to the public were Dr Hermann to resume unrestricted practice. In conclusion, you submitted that Dr Hermann s fitness to practise remains impaired by reason of the IMC determination and of her misconduct. 11. Dr Hermann has made no express representations to this Panel, but it has borne in mind what appears from the correspondence, including her evident distress at her situation and the impact of the proceedings on her. The Panel s Decision 12. The Panel has exercised its own independent judgement. It has taken account of the need to protect patients and the public, to maintain public confidence in the profession, and to declare and uphold proper standards of conduct and practice. 4

5 13. The Panel has noted that Dr Hermann has not worked in the United Kingdom since the hearing in It therefore considers that she has not breached any of the conditions on her registration. 14. In accordance with her conditions the Panel has noted that in June 2012 Dr Hermann provided the GMC with her Personal Development Plan and the information requested regarding the IMC s findings and restrictions. However, since that time Dr Hermann has not provided further information in relation to insight into her misconduct or to any remedial steps she has taken. Dr Hermann has also not provided the Panel with any information in relation to her Continuing Professional Development. The Panel is concerned that Dr Hermann has not practised since A considerable time has elapsed. Therefore, Dr Hermann would have had great difficulty in maintaining her skills. 15. In light of the lack of information regarding Dr Hermann s insight into and remediation of her shortcomings together with the lack of evidence of Continuing Professional Development, the Panel is satisfied that Dr Hermann s situation has not changed since January In the Panel s judgement there remains a risk to patients if Dr Hermann were to practise unrestricted. The effect of her deficiencies and misconduct on the reputation of the profession has not been remedied. The Panel also takes the view that public confidence in the profession would be undermined if a finding of impairment were not made. 16. Therefore, the Panel is satisfied that Dr Hermann s fitness to practise remains impaired by reason of the IMC determination and of her misconduct. Determination on Sanction Mr Coxhill: 17. Having determined that Dr Hermann s fitness to practise is impaired by reason of the IMC determination and of her misconduct, the Panel has now considered what action, if any, it should take with regard to her registration. 18. In so doing, the Panel has given careful consideration to all the evidence adduced, together with your submissions on behalf of the General Medical Council (GMC). Submission 19. You submitted that given the Panel s findings on impairment it would not be appropriate to revoke the conditions on Dr Hermann s registration. 4. In relation to imposing a further period of conditional registration you stated that it would be difficult to envisage appropriate conditions. You reminded the Panel that it appears that Dr Hermann has no intention of working in the United Kingdom and over the last two and a half years has failed to demonstrate any meaningful 5

6 engagement. You stated that there has been some engagement but that Dr Hermann has not demonstrated potential for remediation and retraining. You said that unemployment does not preclude her from Continuing Professional Development (CPD) but that she has been silent on this subject. You submitted that at this stage there are no conditions that would be appropriate, proportionate, workable and measureable. 20. In relation to suspension you submitted that the Panel cannot be satisfied that Dr Hermann has insight and that she does not pose a significant risk of repeating behaviour. Therefore suspension would not be appropriate. 21. You stated that Dr Hermann has demonstrated a persistent lack of insight into the seriousness of her actions and into their consequences. Therefore, the appropriate sanction in Dr Hermann s case is erasure. The Panel s Decision 22. The decision as to the appropriate sanction to impose, if any, in this case is a matter for this present Panel exercising its own judgement. 23. In reaching its decision, the Panel has taken account of the GMC s Indicative Sanctions Guidance (revised April 2014). It has borne in mind that the purpose of sanctions is not to be punitive, although they may have a punitive effect, but is to protect patients and the wider public interest. 24. Throughout its deliberations, the Panel has taken account of the principle of proportionality, balancing Dr Hermann s interests with the public interest. The public interest includes, amongst other things, the protection of patients, the maintenance of public confidence in the profession, and the declaring and upholding proper standards of conduct and practice. 25. The Panel has borne in mind that Dr Hermann is not present or represented at these proceedings and it has drawn no adverse inferences from her absence. 26. In coming to its decision as to the appropriate sanction, if any, to impose in Dr Hermann s case, the Panel first considered whether to revoke the existing order or to conclude the case by taking no action. The Panel determined that, in view its findings on impairment, it would be neither sufficient, proportionate nor in the public interest, to conclude this case by revoking the conditions or taking no action. 27. The Panel next considered whether it would be sufficient to impose conditions on Dr Hermann s registration. It has borne in mind that any conditions imposed would need to be appropriate, proportionate, workable and measurable. 28. The Panel notes that Dr Hermann may have displayed an attitudinal problem but considers that it may have been a result of frustration. The Panel does not 6

7 regard Dr Hermann as having a harmful or deep seated personality or attitudinal problem. The Panel considers that Dr Hermann showed some insight into her misconduct when she produced a Personal Development Plan and then complied with her obligation to notify the GMC of the IMC proceedings. However, the Panel accepts that although she has engaged with the GMC that engagement has not always been constructive. 29. There are identifiable areas of Dr Hermann s practise in need of retraining, but the Panel is satisfied that patients will not be put in danger by a period of further conditional registration. Furthermore, the Panel determined that it is possible to formulate appropriate and practicable conditions. 30. The present Panel is mindful that the 2012 Panel found that her misconduct was an oversight and not a calculated omission. That Panel was of the opinion that Dr Hermann s behaviour was not fundamentally incompatible with continued registration and that conditions would protect the public and maintain confidence in the profession. 31. The present Panel considers that an appropriate and proportionate response to the finding of impairment, mindful of the public interest, can be achieved by extending the period of conditional registration for a further 18 months from the date the current period of three years would expire. This would give Dr Hermann an opportunity to remediate her deficiencies and demonstrate insight into the nature of her misconduct. In the Panel s judgement this direction and for this period appropriately balances the public interest with the impact on Dr Hermann. In the Panel s view neither temporary nor permanent removal from the register is necessary to protect the public or to meet the wider public interest in maintaining confidence in the profession. 32. The Panel determined that the following conditions are appropriate: 1. She must contact the GMC within 7 days of her return to the UK. For confirmation, the following conditions can only be fulfilled in the UK and the monitoring of her compliance with these conditions will start from the date of her return. 2. She must notify the GMC promptly of any post she accepts for which registration with the GMC is required and provide the GMC with the contact details of her employer. 3. At any time that she is providing medical services, which require her to be registered with the GMC, she must agree to the appointment of a workplace reporter nominated by her employer, or contracting body, and approved by the GMC. 7

8 4. She must allow the GMC to exchange information with her employer or any contracting body for which she provides medical services. 5. She must inform the GMC of any formal disciplinary proceedings taken against her, from the date of this determination. 6. She must inform the GMC if she applies for medical employment outside the UK. 7. She must work with a Postgraduate Dean (or his/her nominated deputy) to formulate an updated Personal Development Plan, which should include details of how she will address the deficiencies in the following areas of her practice: a. gynaecological/surgical techniques; b. clinical decision making; c. collaboration and team working. 8. She must forward a copy of her updated Personal Development Plan to the GMC within three months of this extended period coming into effect. 9. She must meet with the Postgraduate Dean (or his/her nominated deputy) on a regular basis to discuss her progress towards achieving the aims set out in her Personal Development Plan. The frequency of her meetings is to be set by the Postgraduate Dean (or his/her nominated deputy). 10. She must allow the GMC to exchange information about the standard of her professional performance and her progress towards achieving the aims set out in her Personal Development Plan with the Postgraduate Dean (or his/her nominated deputy) and any other person involved in her retraining and supervision. 11. At any time that she is employed, or providing medical services which require her to be registered with the GMC, she must place herself and remain under the supervision of a workplace reporter, as agreed by the GMC. Her employer/postgraduate Dean (or his/her nominated deputy) will be asked to assist in identifying a possible reporter. 12. She must disclose the determinations of the January 2012 Fitness to Practise Panel and the determinations of this present Panel to the following: a. any current and prospective employers or contracting body, (at the time of application) c. any other individual involved in her retraining and supervision. 8

9 13. Her day-to-day work must be supervised by a registered medical practitioner of consultant grade or equivalent. 14. She must inform the following parties that her registration is subject to the conditions listed at 1 to 13 above: a. Any organisation or person employing or contracting with her to undertake medical work b. Any locum agency or out-of-hours service she is registered with or applies to be registered with (at the time of application) c. In the case of locum appointments, her immediate line manager at her place of work (at least 24 hours before starting work) d. Any prospective employer or contracting body (at the time of application). 33. The Panel wishes to stress that it is Dr Hermann s responsibility to take action to improve her performance. The GMC cannot organise this for her. The Panel has also referred her to the Postgraduate Dean. Whilst the Postgraduate Dean may be able to offer her assistance and advice, the Panel wishes to make it clear that the Postgraduate Dean is under no obligation to provide funding, access to training or supernumerary posts. 34. Shortly before the end of the period of conditional registration Dr Hermann s case will be reviewed by a Fitness to Practise Panel. A letter will be sent to her about the arrangements for the review hearing. At this next hearing, the Panel reviewing her case will wish to be assured that Dr Hermann has addressed all her shortcomings. The Panel will be assisted by: Reports from her workplace reporter(s) Testimonials from professional colleagues who can attest to her conduct and clinical performance during the period of conditional registration Evidence of Continuing Professional Development that she has undertaken Evidence that Dr Hermann understands her obligations to her regulatory body, by way of a reflective statement. 20 This direction comes into effect 28 days from the date when written notice of this direction is deemed to be served on Dr Hermann, unless she exercises her right of appeal, in which case it comes into effect on the disposal of the appeal. In the meantime, during that period of 28 days or while any appeal is pending, the current conditions remain in force. 9

10 35. However, regardless of when the direction in fact comes into effect, the period of 18 months is treated as having run from the date that the current period of three years would have expired in February Confirmed Date 12 January 2015 Professor David Katz, Chair 10