PUBLIC RECORD - MPTS1. Dr Renato Zaccheddu graduated in medicine in 1995 from the University of...

Record of Determinations –

Medical Practitioners Tribunal

MPT: Dr ZACCHEDDU 1

PUBLIC RECORD

Dates: 09/12/2019 – 13/12/2019

Medical Practitioner’s name: Dr Renato ZACCHEDDU

GMC reference number: 4447324

Primary medical qualification: State Exam 1996 Universita degli Studi di Milano

Type of case

New – Misconduct

Outcome on impairment

Impairment

Summary of outcome

Suspension, 12 months. Review hearing directed.

Tribunal:

Legally Qualified Chair Mrs Claire Sharp

Lay Tribunal Member: Mrs Rachel O'Connell

Medical Tribunal Member: Dr Peter Kyle

Tribunal Clerk: Miss Fiona Johnston

Attendance and Representation:

Medical Practitioner: Present and represented

Medical Practitioner’s Representative: Mr Simon Gurney, Counsel, direct instruction

GMC Representative: Ms Louise Kitchin, Counsel



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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 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 the facts – 10/12/19 Background 1. Dr Renato Zaccheddu graduated in medicine in 1995 from the University of Milan. He obtained full GMC registration with a licence to practise in 1997. Dr Zaccheddu moved to the UK in the same year and commenced an attachment in Birmingham. Dr Zaccheddu went on to train in Plastic, Reconstructive and Aesthetic Surgery in South Africa and Brazil. 2. Dr Zaccheddu has worked in the UK since 2003 in the private sector as a cosmetic surgeon. Dr Zaccheddu is an independent self- employed doctor who holds practising privileges in several hospitals which allows him to operate on patients. At the time of the events, he was practising at The Pines Hospital in Manchester run by Transform Medical/The Hospital Group (‘the Group’). 3. The allegation that has led to Dr Zaccheddu’s hearing can be summarised as follows. Patient A was seen by Dr Zaccheddu for revision breast surgery in July 2017 following a poor outcome from previous surgery performed by another doctor within the Group. Between July 2017 and September 2018, Dr Zaccheddu exchanged text messages with Patient A and he also carried out intimate examinations of Patient A without having a chaperone present. On or around the 27 August 2018, Dr Zaccheddu met Patient A for a meal, and had sexual intercourse with her. 4. The initial concerns were raised with the GMC on 29 November 2018 by Dr B, the Responsible Officer for the Group following a local investigation.



MPT: Dr ZACCHEDDU 3

The Allegation and the Doctor’s Response 5. The Allegation made against Dr Zaccheddu is as follows: That being registered under the Medical Act 1983 (as amended):

1. Between July 2017 and September 2018, you consulted with Patient A during

which time you:

a. were aware that Patient A was vulnerable as a result of her history of

depression; To be determined

b. inappropriately exchanged text messages with Patient A:

i. on her personal mobile telephone number; Admitted and

found proved

ii. for non-clinical purposes; Admitted and found proved

c. on one or more occasion conducted an intimate examination of Patient

A without a chaperone. Admitted and found proved

2. On or around 27 August 2018 you:

a. met Patient A for a meal at the Grill on New York Street; Admitted

and found proved

b. went back to your hotel with Patient A for a drink; Admitted and

found proved

c. had sexual intercourse with Patient A. Admitted and found proved

3. Your actions as set out at:

a. one or more of paragraphs 1 b., 2 a. and 2 b. above were sexually

motivated in that they were carried out in pursuit of a future sexual

relationship with Patient A; Admitted and found proved



MPT: Dr ZACCHEDDU 4

b. one or more of paragraphs 1 c. and 2 c. above were sexually

motivated in that they were carried out in pursuit of your own sexual

gratification. To be determined

The Admitted Facts 6. At the outset of these proceedings, through his counsel, Mr Simon Gurney, Dr Zaccheddu made admissions to some paragraphs and sub-paragraphs of the Allegation, as set out above, in accordance with Rule 17(2)(d) of the General Medical Council (GMC) (Fitness to Practise) Rules 2004, as amended (‘the Rules’). In accordance with Rule 17(2)(e) of the Rules, the Tribunal announced these paragraphs and sub-paragraphs of the Allegation as admitted and found proved. Mr Gurney explained sub paragraph 3b was only partially admitted, as Dr Zaccheddu denied acting as admitted in relation to sub paragraph 1c in pursuit of his own sexual gratification. The Facts to be Determined 7. In light of Dr Zaccheddu’s response to the Allegation made against him, the Tribunal is required to determine whether Dr Zaccheddu was aware that Patient A was vulnerable as a result of her history of depression. 8. The Tribunal is further required to determine whether one or more of paragraphs 1 c. above were sexually motivated in that they were carried out in pursuit of his own sexual gratification; Dr Zaccheddu accepts that his action in relation to paragraph 2c was sexually motivated. Factual Witness Evidence 9. The Tribunal received evidence on behalf of the GMC in the form of witness statements from the following witnesses who were not called to give oral evidence:

• Ms C, Group Head of Governance and Compliance for the Group, dated 4 March 2019.

• Ms D, Head of Operations for the Group, dated 8 March 2019. 10. Dr Zaccheddu provided his own witness statement dated 14 October 2019 and gave oral evidence at the hearing. Documentary Evidence 11. The Tribunal had regard to the documentary evidence provided by the parties. This evidence included, but was not limited to



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• Investigation meeting notes with Patient A obtained by the Group • Investigation meeting notes with Dr Zaccheddu obtained by the Group • Extracts of the Group’s internal report

• Chaperone policies • Dr Zaccheddu’s reflective notes • Patient A’s medical notes (extracts) • Character references

The Tribunal’s Approach 12. In reaching its decision on facts, the Tribunal has borne in mind that the burden of proof rests on the GMC and it is for the GMC to prove the Allegation. Dr Zaccheddu 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. 13. The Tribunal when considering the meaning of the term ‘sexually motivated’ looked to the definition in the case of Basson v GMC [2018] EWHC 505, which defined “sexual motivation” as “conduct done either in pursuit of sexual gratification or in pursuit of a future sexual relationship” 14. The Tribunal further accepted the advice that, consistent with the decision in Arunkalaivanan v GMC [2014] EWHC 873 (Admin), it should specifically consider the extent to which the evidence of the doctor’s character might be relevant to the Allegation that this conduct was sexually motivated. 15. The Tribunal has considered all the evidence, both oral and documentary, together with the submissions made by Ms Kitchin, Counsel, on behalf of the GMC and those of Mr Gurney, on Dr Zaccheddu’s behalf. The Tribunal’s Analysis of the Evidence and Findings 16. The Tribunal has considered each outstanding paragraph of the Allegation separately and has evaluated the evidence in order to make its findings on the facts. Allegation 1a 17. The Tribunal, when considering if Dr Zaccheddu’s actions amounted to misconduct, bore in mind Good Medical Practice (‘GMP’) 2013 footnote at paragraph 27:

Some patients are likely to be more vulnerable than others because of their illness, disability or frailty or because of their current circumstances, such as



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bereavement or redundancy. You should treat children and young people under 18 years as vulnerable. Vulnerability can be temporary or permanent.

18. The Tribunal noted that Patient A had suffered significant breast deformity following her initial breast surgery, which is likely (from the evidence available) to have led Patient A to experience depressive symptoms about her body image; she also ‘begged’ for revision surgery in 2017 according to Dr Zaccheddu. The Tribunal also noted that Patient A suffered from body dysmorphic disorder and had undergone significant number of operations over a ten-year period. Patient A had displayed symptoms of increased anxiety and binge eating. Taking into account all these factors, it was clear to the Tribunal that Patient A was vulnerable, but not due to her history of depression which appeared to have commenced in 2016. No evidence was put before the Tribunal that Patient’s A history of depression rendered her vulnerable at the time she was under the care of Dr Zaccheddu. 19. The Tribunal considered the evidence before it and it was clear that Dr Zaccheddu had largely ignored Patient A’s medical notes; he had failed to explore the medical history of Patient A. The Tribunal does not accept Dr Zaccheddu’s explanation that Patient A’s behaviour did not demonstrate vulnerability or that there was no need to study her medical notes as she was a revision surgery patient. His failure to do so represented poor medical practice in the judgement of the Tribunal. However, the Tribunal must consider the Allegation as drafted, and was not satisfied on the balance of probabilities that Patient A was vulnerable due to her history of depression, though she was vulnerable for other reasons. 20. The Tribunal having considered the facts finds paragraph 1b of the Allegation not proved. Allegation 3b 21. This allegation principally relates to three consultations with Dr Zaccheddu; 22 February 2018, 15 July 2018 and 29 July 2018. Each consultation was separately considered by the Tribunal. 22 February 2018 22. The Tribunal notes that there was no evidence within the post-operative documents to suggest that a chaperone had been offered or discussed with Patient A at this post-operative consultation (following surgery in September 2016). Dr Zaccheddu stated that he could not remember if there was a chaperone present or available. Patient A’s account of this consultation within the investigation notes of the Group was extremely limited. The Tribunal was unable to form any clear picture about the consultation which took place on 22 February 2018, and concluded that it



MPT: Dr ZACCHEDDU 7

was unable to determine whether there was a chaperone present for the intimate examination carried out on the evidence available to it. 15 July 2018 23. The Tribunal notes that there was no evidence available to it to suggest that a chaperone had been offered or discussed with Patient A at this pre-operative consultation. In Dr Zaccheddu’s oral evidence, he stated that he could not remember if there was a chaperone present or available for this consultation, although in paragraph 3.21 of his witness statement he says ‘again, on this occasion I intimately examined Patient A without a chaperone been present’ (this referred to the consultation of 29 July 2018). This indicates that Dr Zaccheddu saw Patient A without a chaperone for an intimate examination prior to 29 July 2018. Patient A’s account given to the Group was that there was no chaperone present for this consultation on 15 July 2018. Dr Zaccheddu’s account of that consultation within his witness statement was that he would normally have a chaperone present as the consultation involved pre-surgery marking for a labia reduction procedure. His oral evidence was that he did not mark Patient A’s genital area as that was carried out in theatre. 24. The Tribunal acknowledges that Patient A has refused to cooperate with the GMC enquiries, failed to give a sworn witness statement and has not attended these proceedings in order to give evidence or answer questions; Dr Zaccheddu has done all of these things. The Tribunal concluded it was more likely than not that a chaperone was not present during the 15 July 2018 consultation. It was relevant to its decision that Dr Zaccheddu did not generally have a chaperone present when conducting an examination of a patient’s breast, despite this being an intimate examination and required under the Group’s chaperone policy. It was evident from the evidence received that the majority of the consultation was marking Patient A’s breasts. Patient A gave a more detailed account to the Group about this consultation, and was clear that there was no chaperone present. 25. Given the limited information from Patient A, and the weight that must be afforded to sworn evidence and witnesses to have been subjected to cross examination, the Tribunal was not persuaded that there was sufficient evidence that supported a conclusion that Dr Zaccheddu gained sexual gratification during the examinations on either of these dates. Whilst it noted Patient A’s concerns on how the pre surgery marking was conducted on 15 July 2018, and she was a highly experienced patient in this regard, Dr Zaccheddu’s explanations about how surgical pre marking is carried out was not inherently unlikely. The Tribunal also bore in mind that Patient A’s concerns were only raised after the sexual encounter with Dr Zaccheddu and that there was nothing overly inappropriate in her account of Dr Zaccheddu’s actions that day.



MPT: Dr ZACCHEDDU 8

29 July 2018 26. In relation to the post-operative review (combined with the removal of sutures from the breasts) carried out on 29 July 2018, the Tribunal noted Dr Zaccheddu’s admission that no chaperone was present. It also concluded that the following factors supported the inference that it was more likely than not Dr Zaccheddu saw Patient A without a chaperone for his own sexual gratification, notwithstanding the evidence of his good character before the Tribunal:

• the Tribunal did not accept Dr Zaccheddu’s explanation that it was necessary to conduct the examination without a chaperone to save time as the clinic was busy. Busy clinics are not an unusual event and Dr Zaccheddu’s evidence was that it was very unusual for him to examine a patient’s genital area without a chaperone. In Dr Zaccheddu’s oral evidence, he accepts that this was an error of judgement and against the chaperone policy of the Group (as well as GMC guidance on the topic). The explanation for this deviation from his usual practice was not persuasive. The Tribunal finds it unacceptable that Dr Zaccheddu carried out an intimate examination on a young female, to whom he accepts he was attracted, without a chaperone; • the Tribunal finds that the boundaries of the professional relationship between Dr Zaccheddu and Patient A had become seriously blurred by the time of the third examination, as demonstrated by the texts passed between them and the conversations about non-clinical matters; • Dr Zaccheddu admits he was going through a difficult time during this period; he was lonely, and Patient A was an attractive woman who was flirting with him; • the nature of the text messages between the doctor and Patient A (where he referred to giving Patient A her ‘sexiness back’) – the Tribunal considered these to be highly unprofessional and relevant to the issue of Patient A and her attractiveness; • the fact that Dr Zaccheddu had made sure he was available to carry out the post-operative review and suture removal, when he previously had not taken such a step for Patient A after her operation in September 2017 and his oral evidence was that this early review and suture removal is undertaken by a nurse; • Dr Zaccheddu by his own admission accepted that he viewed Patient A differently to other patients – he used the term “acquaintance” to explain why



MPT: Dr ZACCHEDDU 9

he thought Patient A would not mind being seen without a chaperone being present.

27. The Tribunal therefore finds paragraph 3b of the Allegation proved. The Tribunal’s Overall Determination on the Facts 28. The Tribunal has determined the facts as follows: That being registered under the Medical Act 1983 (as amended):

1. Between July 2017 and September 2018 you consulted with Patient A during

which time you:

a. were aware that Patient A was vulnerable as a result of her history of

depression; Not proved

b. inappropriately exchanged text messages with Patient A:

i. on her personal mobile telephone number; Admitted and

found proved

ii. for non-clinical purposes; Admitted and found proved

c. on one or more occasion conducted an intimate examination of Patient

A without a chaperone. Admitted and found proved

2. On or around 27 August 2018 you:

a. met Patient A for a meal at the Grill on New York Street; Admitted

and found proved

b. went back to your hotel with Patient A for a drink; Admitted and

found proved

c. had sexual intercourse with Patient A. Admitted and found proved

3. Your actions as set out at:



MPT: Dr ZACCHEDDU 10

a. one or more of paragraphs 1 b., 2 a. and 2 b. above were sexually

motivated in that they were carried out in pursuit of a future sexual

relationship with Patient A; Admitted and found proved

b. one or more of paragraphs 1 c. and 2 c. above were sexually

motivated in that they were carried out in pursuit of your own sexual

gratification. Determined and found proved

29. And in relation to the above your fitness to practise is impaired because of your misconduct. To be determined Determination on Impairment – 12/12/2019 1. The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether, on the basis of the facts which it has found proved as set out before, Dr Zaccheddu’s fitness to practise is impaired by reason of misconduct. 2. Dr Zaccheddu provided further oral evidence to the Tribunal. He apologised, and expressed his remorse regarding the consequences of his actions upon Patient A, the profession, and the public. He told the Tribunal about his insight into his misconduct, and the steps he had taken (and intended to continue to take) to prevent any repetition. 3. The Tribunal also received a witness statement, from Dr B, Dr Zaccheddu’s Responsible Officer (‘RO’), dated 6 October 2019. Ms Kitchin’s submissions 4. On behalf of the GMC, Ms Kitchin, Counsel, submitted that Dr Zaccheddu’s fitness to practise is impaired by reason of his misconduct. She submitted that Dr Zaccheddu had breached a number of paragraphs of Good Medical Practice (2013 edition) (‘GMP’), including paragraphs 53 and 65. 5. Ms Kitchin submitted that Dr Zaccheddu had abused his position as a doctor and breached the trust between a patient and a doctor, a fundamental tenet of the medical profession. Ms Kitchin said that Dr Zaccheddu abused the trust of a vulnerable patient, suffering from a number of mental health conditions, albeit that he was unaware of the full situation due to a failure to consider Patient A’s medical notes. She noted that Dr Zaccheddu was aware Patient A was distressed about her deformity and unhappy about her appearance. This was a clear indication that Patient A was vulnerable and this was known by Dr Zaccheddu.




6. Ms Kitchin submitted that Dr Zaccheddu failed to establish a clear boundary between his professional practice and his personal life. She pointed out that Dr Zaccheddu was aware of his growing attachment to Patient A, and that the boundary breaches were repeated with the non-clinical text messages; each time Dr Zaccheddu sent such a message, Ms Kitchin said that this was a conscious decision on his part. She commented that Dr Zaccheddu had every opportunity to stop the breaches of the boundaries between patient and doctor and establish an appropriate professional relationship and failed to do so. Ms Kitchin submitted that conducting an intimate examination without a chaperone present was in itself serious misconduct. 7. Ms Kitchin reminded the Tribunal that the test for misconduct includes an assessment of seriousness. In making its assessment, the Tribunal should consider whether the conduct would be described as deplorable by fellow practitioners. She submitted that there was no doubt Dr Zaccheddu’s conduct falls into the category of serious misconduct and included numerous breaches of both GMP and GMC guidance. Ms Kitchin said that given the seriousness of the misconduct of Dr Zaccheddu, a finding that his fitness to practise is currently impaired was justified due to the impact upon Patient A, the impact upon the reputation of the medical profession which has been brought into disrepute, and the need to uphold proper professional standards and conduct. Mr Gurney’s submissions 8. Mr Gurney, on behalf of Dr Zaccheddu, submitted that Dr Zaccheddu conceded that the facts as found proved by the Tribunal constituted serious misconduct. Further, Dr Zaccheddu accepted that a finding of impairment was inevitable, given the seriousness of the misconduct and the need to uphold proper standards and maintain confidence in the medical profession. 9. Mr Gurney explained that the rest of his submissions were simply to highlight the substantial body of evidence that showed how Dr Zaccheddu had tried to remediate his misconduct and gain insight into what had happened, why it had happened, and the steps required to ensure there was no repetition. Mr Gurney took the Tribunal in depth through the body of this evidence, highlighting the doctor’s early admission of sexual intercourse with Patient A when she had denied being present in the hotel room, his apology and acceptance of unprofessional behaviour towards Patient A in text messages. He noted the evidence from the RO and colleagues about Dr Zaccheddu’s previously unblemished record over a long period of time in this field, both in terms of his fitness to practise and clinical skills. Mr Gurney described this as compelling mitigating evidence and submitted that the reflection shown both in written and oral evidence from Dr Zaccheddu demonstrated the deep insight he now had into his misconduct.

The Relevant Legal Principles




10. The Tribunal reminded itself that at this stage of these proceedings, there is no burden or standard of proof and the decision of impairment is a matter for the Tribunal’s judgement alone. 11. In approaching its decision, the Tribunal was mindful of the two-stage process to be adopted: first, whether the facts as found proved amounted to serious misconduct and secondly, whether the doctor’s fitness to practise is currently impaired by reason of that serious misconduct. The Tribunal’s Determination 12. At both stages of the process, the Tribunal was mindful of the overarching objective of the GMC set out in section 1 of the Medical Act 1983 (as amended) to:

a. Protect, promote and maintain the health, safety and well-being of the public,

b. Promote and maintain public confidence in the medical profession, and

c. Promote and maintain proper professional standards and conduct for members of that profession.

13. Whilst there is no statutory definition of impairment, the Tribunal was assisted by the guidance provided by Dame Janet Smith in the Fifth Shipman Report adopted by the High Court in Grant. In particular, the Tribunal considered whether its findings of fact showed that Dr Zaccheddu’s fitness to practise is impaired in the sense that he:

a. ‘Has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b. Has in the past brought and/or is liable in the future to bring the medical

profession into disrepute; and/or

c. Has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession;…’

14. The Tribunal bore in mind that it must determine whether Dr Zaccheddu’s fitness to practise is currently impaired by reason of misconduct, taking into account his conduct at the time of the events and any other relevant factors such as any development of insight, whether the matters are remediable or have been remedied and the likelihood of repetition.

15. The Tribunal also bore in mind the guidance in CHRE v NMC and P Grant [2011] EWHC 927 (Admin) at paragraph 71, ‘it is essential when deciding whether




fitness to practise is impaired, not to lose sight of fundamental considerations […] namely the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession’, as enshrined in the three limbs of the overarching objective. Misconduct 16. The Tribunal considered the paragraphs of GMP which set out the standards that a doctor must continue to meet throughout their professional career. The Tribunal had particular regard to paragraphs 1, 53, 65 of GMP that state:

1 Patients need good doctors. Good doctors make the care of their patients

their first concern: they are competent, keep their knowledge and skills up to

date, establish and maintain good relationships with patients and colleagues,

are honest and trustworthy, and act with integrity and within the law.

53 You must not use your professional position to pursue a sexual or improper emotional relationship with a patient or someone close to them 65 You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession

17. The Tribunal also had regard to the 2013 GMC guidance ‘Maintaining a professional boundary between you and your patient’, specifically paragraphs 4 and 5.

4 You must not pursue a sexual or improper emotional relationship with a current patient.

5 If a patient pursues a sexual or improper emotional relationship with you,

you should treat them politely and considerately and try to re-establish a professional boundary. If trust has broken down and you find it necessary to end the professional relationship, you must follow the guidance in Ending your professional relationship with a patient. 18. The Tribunal also had regard to the 2013 GMC guidance on intimate examinations and chaperones. 19. The Tribunal applied these standards to the Allegation and the facts found proved. It considered Dr Zaccheddu’s conduct as found proved as a whole, although it noted his misconduct could be broken down into three sections; namely, the non- clinical text messages and calls creating an inappropriate emotional relationship with Patient A, the carrying out of an intimate examination of Patient A without a chaperone for his own sexual gratification, and carrying out a number of actions in

https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/ending-your-professional-relationship-with-a-patient

https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/ending-your-professional-relationship-with-a-patient




pursuit of a future sexual relationship with Patient A that ended in sexual intercourse. 20. The Tribunal acknowledged Dr Zaccheddu’s admissions from the outset and the context in which he worked (being a cosmetic surgeon in the private sector). Dr Zaccheddu himself had admitted his conduct was serious misconduct. The Tribunal took into account all of the evidence it has received in course of these proceedings and found that the following were notable features:

• The examination carried out on 29 July 2018 was found to have been carried out without a chaperone for Dr Zaccheddu’s own sexual gratification;

• That Patient A was a vulnerable patient whose vulnerability was demonstrated to Dr Zaccheddu through her deep distress at her deformity and ‘begging’ him for help;

• That the proper professional boundaries between patient and doctor were repeatedly breached by Dr Zaccheddu through the creation of an inappropriate emotional relationship, numerous inappropriate text messages for non-clinical purposes, and his actions on 27 August 2018 in meeting Patient A socially and engaging in sexual intercourse with her;

• That the evidence shows that there was an escalating pattern of breaches of the proper professional boundary between patient and doctor by Dr Zaccheddu;

• Dr Zaccheddu’s inappropriate relationship with Patient A took place while she was under his care;

• Dr Zaccheddu abused the trust that Patient A placed in him as a doctor, which led to Patient A feeling unable to continue with him as her surgeon.

21. The Tribunal found that Dr Zaccheddu’s misconduct engaged all three limbs of the over-arching objective as set out above. His misconduct affected the health and wellbeing of Patient A who had been forced to transfer to a new surgeon, his conduct was linked to the profession of medicine and was carried out while he was undertaking his clinical duties, and would have had a detrimental effect on the reputation of the medical profession. It therefore concluded that Dr Zaccheddu’s conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to misconduct and would be described as deplorable by fellow medical professionals. Dr Zaccheddu’s misconduct was serious.

Impairment

22. The Tribunal having determined that the facts found proved amounted to serious misconduct, went on to consider whether, as a result of that misconduct, Dr Zaccheddu’s fitness to practise is currently impaired.




23. In reaching their conclusion regarding impairment, the Tribunal considered the questions as raised in the case of Cohen v GMC [2008] EWHC 581 (Admin), namely;

‘…It must be highly relevant in determining if a doctor's fitness to practise is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated…’

24. In the judgment of the Tribunal, serious misconduct of a sexual nature is not easily remediated. However, there was evidence before it which demonstrated that Dr Zaccheddu had developed meaningful and deep insight into his serious misconduct. The Tribunal considered carefully Dr Zaccheddu’s responses during the Group’s investigation, his written reflection, witness statement and oral evidence. It noted that he was able to explain why he had acted towards Patient A in the manner found by the Tribunal with reference to his personal circumstances at the time. It was relevant that he admitted the majority of his misconduct at an early stage, particularly the admission of sexual intercourse. Dr Zaccheddu had attended an intensive boundary course in September 2019. He was able to explain a sound understanding of proper professional boundaries. 25. Dr Zaccheddu explained in his evidence his personal belief that he would never repeat his misconduct, and how he incorporated a number of measures in his practice to remove any risk of repetition. In the Tribunal’s view, there was an inextricable link between the inappropriate emotional relationship with Patient A specifically that led to the decision by Dr Zaccheddu to carry out an intimate examination without a chaperone present on 29 July 2018 for his own sexual gratification, and also his pursuit of a future sexual relationship. While the use of chaperones was initially imposed on Dr Zaccheddu by the Group and then by the Interim Orders Tribunal, the Tribunal accepted Dr Zaccheddu’s evidence that he found the presence of chaperones to be a positive addition to his practice and enabled him to gain immediate feedback on his interactions with patients. 26. The insight shown, remediation and reflection undertaken, and the future measures outlined by Dr Zaccheddu, meant that the Tribunal was satisfied that Dr Zaccheddu had remediated his misconduct to a significant extent and that it was highly unlikely his misconduct would be repeated. 27. The Tribunal had regard to the character evidence presented on behalf of Dr Zaccheddu which attested to his good character, his clinical competence and his unblemished record. 28. Notwithstanding the positive findings of the Tribunal about Dr Zaccheddu at this stage, the Tribunal reminded itself of the judgments in Grant and Yeong v GMC [2009] EWHC 1923 (Admin), which noted the considerable weight placed on the




over-arching objective when dealing with behaviour that can constitute a breach of a fundamental tenet of the medical profession and undermine public confidence. 29. The Tribunal found that Dr Zaccheddu’s misconduct had brought the profession into disrepute and breached fundamental tenets of the profession, namely trust and the need to maintain proper professional boundaries in respect of patients. 30. The Tribunal found that a finding of impairment was necessary because of the gravity of Dr Zaccheddu’s misconduct. The public’s confidence in the profession would be undermined if there were no finding of impairment in the circumstances of this case and the Tribunal would be failing in its duty to uphold proper standards of conduct for the profession if a finding of impairment were not made. 31. Accordingly the Tribunal determined that Dr Zaccheddu’s fitness to practise is impaired by reason of his misconduct. Determination on Sanction - 13/12/2019 1. Having determined that Dr Zaccheddu’s fitness to practise is impaired by reason of misconduct, the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction, if any, to impose. Ms Kitchin’s Submissions 2. On behalf of the GMC, Ms Kitchin reminded the Tribunal that in deciding whether to impose a sanction on Dr Zaccheddu’s registration, it will do so exercising its own independent judgement, considering all of the evidence before it and by considering each possible sanction in ascending order, starting with the least restrictive. Throughout her submissions, she referred the Tribunal to the Sanctions Guidance (November 2019) (‘SG’). 3. Ms Kitchin submitted that Dr Zaccheddu was a ‘decent doctor’ who had insight but that his insight was not fully developed. Ms Kitchin submitted that it was the GMC’s position that in order to protect the public, the most appropriate and proportionate sanction was one of erasure. Ms Kitchin highlighted that there was a number of aggravating features in this case, including abuse of professional position, the vulnerability of Patient A, and sexual misconduct. Ms Kitchin went through the paragraphs of the SG that she submitted were the most relevant and that supported the GMC’s position that erasure was the only means to uphold the over-arching objective. Ms Kitchin submitted that remediation by Dr Zaccheddu should carry less weight. Mr Gurney’s Submissions




4. Mr Gurney submitted that Dr Zaccheddu accepted that his misconduct requires serious action to be taken to maintain public confidence and proper professional standards. Mr Gurney accepted that no sanction less than suspension will protect the public interest, and acknowledged without the mitigating factors in Dr Zaccheddu’s case, erasure might be viewed as a real possibility. Mr Gurney submitted that a reasonable and informed member of the public would be satisfied that suspension of Dr Zaccheddu’s registration was the most appropriate sanction in the light of the evidence of his remediation and insight, and the finding of the Tribunal that he was highly unlikely to repeat his misconduct. The Tribunal’s Determination on Sanction 5. The decision as to the appropriate sanction to impose, if any, in this case is a matter for this Tribunal exercising its own independent judgement. In reaching its decision, the Tribunal has taken account of the SG. It has borne in mind that the purpose of sanctions is not to be punitive, but to protect patients and the wider public interest, although they may have a punitive effect. 6. Throughout its deliberations, the Tribunal has applied the principle of proportionality, balancing Dr Zaccheddu’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 of proper standards of conduct and behaviour. 7. The Tribunal has already given a detailed determination on facts and impairment and it has taken those matters into account during its deliberations on sanction. Mitigating and Aggravating factors 8. The Tribunal considered the following to be mitigating factors:

• Dr Zaccheddu’s practice history, previous good character and the fact that there have been no previous complaints made against him, according to the evidence available;

• Dr Zaccheddu’s conduct does not demonstrate a pattern of widespread, predatory behaviour – his misconduct involved a single patient;

• Dr Zaccheddu has expressed continued and consistent regret and remorse for his behaviour and expressed this in a timely manner to Patient A. Dr Zaccheddu has also shown regret and remorse in respect of the impact that his behaviour has had on Patient A and on the reputation of the medical profession;




• Dr Zaccheddu cooperated with the Group’s and the GMC investigation and

admitted to the most serious act of misconduct early on in the process;

• Dr Zaccheddu demonstrated that he recognised the seriousness of his

misconduct at every stage of these proceedings and conceded that his

conduct amounted to serious professional misconduct and that his fitness to

practise was impaired;

• The Tribunal has found that Dr Zaccheddu has developed meaningful and

deep insight, and that this insight developed following deep reflection;

• Dr Zaccheddu has undertaken remediation that has led to changes in his

practice;

• The Tribunal has previously found that it is highly unlikely that this misconduct will be repeated;

• The Tribunal has also considered statements provided by Dr Zaccheddu’s Responsible Officer and testimonials from his colleagues, which show that he has good clinical skills and his peers are of the view that he should eventually be permitted to practice;

• Patient A has repeatedly said that she did not want to get Dr Zaccheddu ‘in trouble’ and declined to cooperate with the GMC with its investigation.

9. The Tribunal considered the following to be aggravating factors:

• Dr Zaccheddu’s actions represented an abuse of his professional position;

• Patient A was a vulnerable patient; • The Tribunal has found the allegation of sexual misconduct proved; • Dr Zaccheddu’s behaviour represents a serious departure from GMP and

showed a disregard for GMC guidance; • Dr Zaccheddu’s sexual gratification occurred in a clinical context, and the

whole inappropriate relationship happened within a patient – doctor relationship;

• The impact on Patient A included having to change her surgeon; • The duration of the relationship which involved repeated breaches of GMP

and GMC guidance. The Tribunal’s Approach No Action 10. In coming to its decision as to the appropriate sanction, if any, to impose in Dr Zaccheddu’s case, the Tribunal first considered whether to conclude the case by taking no action. 11. The Tribunal found that there are no exceptional circumstances capable of justifying taking no action against Dr Zaccheddu’s registration. The Tribunal




determined that, in view of the serious nature of the Tribunal’s findings on impairment, it would be neither sufficient, proportionate nor in the public interest, to conclude this case by taking no action. Conditions 12. The Tribunal next considered whether it would be sufficient to impose conditions on Dr Zaccheddu’s registration. It has borne in mind that any conditions imposed would need to be appropriate, proportionate, workable and measurable. 13. The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Zaccheddu’s misconduct, nor, in a case involving sexual misconduct could conditions be devised that would protect the public interest and maintain public confidence in the medical profession. The Tribunal was of the opinion that imposing a condition on Dr Zaccheddu’s registration would not be sufficient to protect the public interest. 14. Further, the Tribunal considered that conditions would not send the appropriate message to Dr Zaccheddu, the profession or the public about what is regarded as behaviour unbefitting a registered doctor. The Tribunal has, therefore, determined that it would not be sufficient to direct the imposition of conditions on Dr Zaccheddu’s registration Suspension 15. The Tribunal then went on to consider whether suspending Dr Zaccheddu’s registration would be appropriate and proportionate. As Mr Gurney accepted in his submissions, the misconduct found in Dr Zaccheddu’s case was such that the only realistic sanction that the Tribunal could consider was either an order of suspension or erasure. The Tribunal carefully considered both possibilities, while reminding itself that it should impose the least restrictive and proportionate sanction possible to protect the public. It also reminded itself that in cases of sexual misconduct, considerable weight should be placed on the need to maintain public confidence in the profession and uphold proper professional standards (Yeong). The Tribunal was further mindful of paragraphs 149 and 150 of the SG which refer to cases of sexual misconduct and in particular to the guidance that ‘More serious action, such as erasure, is likely to be appropriate in such cases’. 16. The Tribunal had regard to the whole of the SG and particularly found the

following paragraphs to be the most pertinent:

91) ‘Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and public about what is regarded as behaviour unbefitting a registered doctor. Suspension from the medical register also has




a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension, although this is not its intention.’

92) ‘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’

93) ‘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’

97) Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate;

a) A serious breach of Good medical practice, but where the doctor’s misconduct

is not fundamentally incompatible with their continued registration, therefore complete removal from the medical register would not be in the public interest. However, the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors.

e) No evidence that demonstrates remediation is unlikely to be successful, eg because of previous unsuccessful attempts or a doctor’s unwillingness to engage.

f) No evidence of repetition of similar behaviour since incident.

g) The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviour.

17. The Tribunal acknowledged the seriousness of the aggravating factors, but concluded that the mitigating factors in Dr Zaccheddu’s case were also of considerable weight and justified a finding that erasure was not the only means of protecting the public, and would be disproportionate when balancing the doctor’s interests with the public interest. 18. The Tribunal has already found that Dr Zaccheddu had meaningful and deep insight, and is highly unlikely to repeat his misconduct. He has taken steps to remediate his misconduct and the Tribunal considered it appropriate to bear this in mind, particularly given Dr Zaccheddu’s explanation about the steps he has taken and will continue to take in order to prevent any future crossing of professional boundaries. Dr Zaccheddu has been open throughout these proceedings and earlier




investigations, and has not in any way sought to blame Patient A; he himself admitted the sexual intercourse. 19. The Tribunal considered that Dr Zaccheddu’s conduct was not fundamentally incompatible with continued registration, though his misconduct was very serious and wholly unacceptable. It judged that an order of suspension would both make it clear how far short Dr Zaccheddu’s conduct fell from the standards of behaviour expected of the doctor, and have a deterrent effect to uphold proper professional standards. Given Dr Zaccheddu’s remediation, the Tribunal was satisfied that an order of suspension would protect the public. 20. In all the circumstances the Tribunal determined to suspend the doctor’s registration for a period of twelve months. The Tribunal considered that a suspension of twelve months would send a signal to the profession and uphold the over-arching objective. 21. Shortly before the end of the period of suspension, Dr Zaccheddu’s case will be reviewed by a Medical Practitioners Tribunal. A letter will be sent to Dr Zaccheddu about the arrangements for the review hearing. At the next hearing, the review Tribunal will be assisted by the following:

• An updated reflective log; • CPD and other evidence of maintained clinical skills and knowledge;

• Any other relevant evidence he wishes to present to assist the Tribunal.

Determination on Immediate Order - 13/12/2019 1. Having determined to suspend Dr Zaccheddu’s registration for a period of twelve months, the Tribunal has considered, in accordance with Rule 17(2)(o) of the Rules, whether Dr Zaccheddu’s registration should be subject to an immediate order. 2. The Tribunal has borne in mind the test to be applied with regard to imposing an immediate order; it 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. Submissions 3. On behalf of the GMC, Ms Kitchin referred the Tribunal to the relevant paragraphs of the SG in regard to imposing immediate orders. Ms Kitchin submitted that an immediate order would be appropriate in this case as it is necessary to protect members of the public, and otherwise would be in the public interest in order to protect public confidence in the profession.




4. On behalf of Dr Zaccheddu, Mr Gurney submitted that an immediate order was not necessary. Mr Gurney reminded the Tribunal of its finding that Dr Zaccheddu had undertaken remediation and shown deep insight into his misconduct. Mr Gurney submitted that an immediate order of suspension was not required as the substantive order was sufficient to address the public interest issues; he also suggested that Dr Zaccheddu required time to deal with his professional responsibilities before the substantive order was imposed. The Tribunal’s Determination 5. The Tribunal has taken account of the relevant paragraphs of the SG. 6. The Tribunal has determined that, given the seriousness with which it viewed Dr Zaccheddu’s misconduct, its findings on impairment and the sanction it has imposed, it is necessary to suspend Dr Zaccheddu’s registration with immediate effect to protect public confidence in the medical profession. It noted paragraph 174 and 175 of the SG and did not accept that Dr Zaccheddu needed time to make arrangements for the care of his patients, given that he has been aware of the date of this hearing for some time. 7. The substantive decision of a twelve months’ suspension, as already announced, will take effect 28 days from when notice is deemed to have been served upon Dr Zaccheddu, unless he lodges an appeal in the interim. If Dr Zaccheddu lodges an appeal, the immediate order for suspension will remain in force until such time as the outcome of any appeal is determined. 8. The interim order currently imposed on Dr Zaccheddu’s registration will be revoked

when the immediate order takes effect.

9. That concludes this case.

Confirmed Date 13 December 2019 Mrs Claire Sharp, Chair

PUBLIC RECORD - MPTS1. Dr Renato Zaccheddu graduated in medicine in 1995 from the University of...

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