PUBLIC RECORD - MPTSENT, Head, and Neck Surgeon at Subang Jaya Medical Centre in Malaysia, to be...

Record of Determinations –

Medical Practitioners Tribunal

MPT: Dr ARSHAD 1

PUBLIC RECORD Dates: 14/10/2019 - 23/10/2019

Medical Practitioner’s name: Dr Faisal ARSHAD

GMC reference number: 6163361

Primary medical qualification: MB ChB 2007 University of Leeds

Type of case Outcome on impairment New - Misconduct Not Impaired

Summary of outcome

No action (warning not considered)

Tribunal:

Legally Qualified Chair Mr Paul Moulder

Lay Tribunal Member: Mrs Valerie Blessington

Medical Tribunal Member: Dr Edward Doyle

Tribunal Clerk: Mr Edward Kelly

Attendance and Representation:

Medical Practitioner: Present and represented

Medical Practitioner’s Representative: Mr Ghazan Mahmood, Counsel, instructed by the MPS

GMC Representative: Mr Jeremy Lasker, Counsel

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



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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 Facts - 23/10/2019 Background 1. Dr Faisal Arshad qualified in 2007 graduating from the University of Leeds. Subsequently, Dr Arshad completed foundation training in the West Yorkshire Foundation School and secured a place on a core surgical training programme in August 2009 which lasted 2 years. In 2011, Dr Arshad commenced a higher surgical training specialty programme in the specialty of Otolaryngology which he completed recently, after a two and a half year career break. He was admitted on to the UK GMC specialist register for Otolaryngology on 5 September 2019. At the time of the events, Dr Arshad was practising as a Trainee Ear Nose Throat (‘ENT’) Specialist Registrar employed by Doncaster & Bassetlaw Teaching Hospital NHS Trust (‘the Trust’). 2. The allegation that has led to Dr Arshad’s hearing can be summarised as during the period of 7 October 2015 to 30 April 2017 (‘the Period’) whilst he was employed by the Trust and on rotation at United Lincolnshire Hospitals NHS Trust (‘ULHT’) he received a full-time salary from both the Trust and ULHT. It is alleged that Dr Arshad failed to inform either employer of this and during an interview with the NHS Counter Fraud Team (‘CFT’) made false statements to it. It is alleged that these actions were dishonest. 3. In October 2015, Dr Arshad had been employed by the Trust, and as part of his training he was required to go on rotation to work at Lincoln Hospital which falls under the ULHT. Although physically working at Lincoln Hospital, it was the Doncaster NHS Trust which remained as his employer and was responsible for paying his salary. ULHT, as ‘Host Trust’, should have reimbursed the Trust for the services it was receiving from Dr Arshad, however it also paid a salary directly to Dr Arshad in error. 4. The initial concerns were raised in the early part of 2017, as a consequence of a National Fraud Initiative which provided data indicating certain financial irregularities. It had become apparent that Dr Arshad had been in receipt of full time salaries from both Trusts and had also been paying two set of pension contributions. It was part of the evidence that Dr Arshad had previously been in receipt of duplicate payments of salary 2011/2012 from both the Trust and Hull University Teaching Hospital NHS Trust (‘the Hull Trust’).



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The Outcome of Applications Made during the Facts Stage 5. The Tribunal determined to grant the application, made pursuant to Rule 34(13) of the General Medical Council (‘GMC’) (Fitness to Practise Rules) 2004 as amended (‘the Rules’) by Mr Lasker, on behalf of the GMC, for the witness evidence of Ms A, Senior Payroll Officer at Hull University Teaching Hospital NHS Trust, to be heard by video link and later by telephone link. The Tribunal’s full determination is included at Annex A. 6. The Tribunal determined to grant, in part, the application from Mr Mahmood, on behalf of Dr Arshad, made pursuant to Rule 41 of the Rules, for the evidence of Dr Arshad to be heard in private. The Tribunal’s full determination is included at Annex B. 7. The Tribunal determined to grant the application from Mr Mahmood, made pursuant to Rule 34(13) the Rules, for the witness evidence from Dr B, Consultant ENT, Head, and Neck Surgeon at Subang Jaya Medical Centre in Malaysia, to be heard by video link. The Tribunal’s full determination is included at Annex C. 8. The Tribunal determined to grant the application from Mr Mahmood, made pursuant to Rule 34(13) the Rules, for the witness evidence from Ms C, to be heard by video link, then telephone link. The Tribunal’s full determination is included at Annex D. 9. The Tribunal determined to uphold the application from Mr Mahmood, made pursuant to Rule 34(2) the Rules, for the GMC to discontinue a specific strand of cross-examination of Mr D. The Tribunal’s full determination is included at Annex E The Allegation and the Doctor’s Response 10. The Allegation made against Dr Arshad is as follows:

1. Between 7 October 2015 and 30 April 2017 (‘the Period’) whilst you were employed by Doncaster and Bassetlaw Hospitals NHS Trust (‘Doncaster NHS’) and on rotation at United Lincolnshire Hospitals NHS Trust (‘ULHT’) you:

a. received a full time salary from both Doncaster NHS and ULHT; To be determined

b. failed to inform Doncaster NHS and / or ULHT that you were receiving two full time salaries. To be determined

2. You knew that you:

a. were receiving two full time salaries; To be determined



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b. should not be receiving a full time salary from both Doncaster NHS and ULHT; To be determined

c. should have informed Doncaster NHS and / or ULHT that you were receiving two full time salaries. To be determined

3. Your action as described at paragraph:

a. 1 a. was dishonest by reason of paragraphs 2 a. and 2 b.; To be determined

b. 1 b. was dishonest by reason of paragraphs 2 a. and 2 c. To be determined

4. On 27 June 2017 during an interview with the Counter Fraud Squad you said words to the effect that you:

a. received your salaries from Doncaster NHS and / or ULHT into a separate savings account (‘the Account’); Admitted and found proved

b. did not withdraw any money from the Account during the Period; Admitted and found proved

c. were not aware of the balance of the Account during the Period; Admitted and found proved

d. had not touched your salary payments from Doncaster NHS and / or ULHT and they were still ‘available to repay back to the Trust’; Admitted and found proved

e. you withdrew your day to day spending from another account. Admitted and found proved

5. You knew that:

a. the Account was not a savings account; To be determined

b. money was leaving the Account regularly during the Period; To be determined

c. you had:

i. been aware of the balance of your Account during the Period; To be determined

ii. used some and / or all of the salary payments and they were no longer available in the Account to repay to the Trust; To be determined



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d. day to day spending was coming out of the Account during the Period. To be determined


a. 4 a. was dishonest by reason of paragraph 5 a.; To be determined

b. 4 b. was dishonest by reason of paragraph 5 b.; To be determined

c. 4 c. was dishonest by reason of paragraph 5 c. i.; To be determined

d. 4 d. was dishonest by reason of paragraph 5 c. ii.; To be determined

e. 4 e. was dishonest by reason of paragraph 5 d. To be determined

And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct. To be determined

The Admitted Facts 11. At the outset of these proceedings, through his counsel Mr Mahmood, Dr Arshad 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 found proved. The Facts to be Determined 12. In light of Dr Arshad’s response to the Allegation made against him, the Tribunal is required to determine whether the remaining facts, as alleged, can be found proved or are not proved. Factual Witness Evidence 13. The Tribunal received evidence on behalf of the GMC from the following witnesses:

• Mrs E, Head of HR Operations at ULHT, in person; • Ms F, Medical Workforce and Recruitment Lead at the Trust, in person; • Mr G, Former Medical Secretary for the ENT Department at ULHT, in person;

and • Ms A, Senior Payroll Officer at the Hull Trust, by telephone link.

14. Dr Arshad provided his own witness statement and also gave oral evidence at the hearing. In addition, the Tribunal received evidence from the following witnesses on Dr Arshad’s behalf:



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• Mr D, Dr Arshad’s father, in person; • Ms H, Dr Arshad’s current partner, in person; • Dr B, Dr Arshad’s former Head of the ENT Department at ULHT and Dr

Arshad’s Clinical Supervisor at ULHT, by video link. • Ms I, former employee at Hamilton Bailey Medical Services, in person; and • Ms C, Dr Arshad’s sister, by telephone link.

Documentary Evidence 15. The Tribunal had regard to the documentary evidence provided by the parties. This evidence included, but was not limited to:

• Payslips from Dr Arshad working period at Hull University Trust, dates between August 2011 – March 2012;

• Email chain regarding overpayment by Hull University Trust, dated 24 February 2012;

• Email chain between Dr Arshad and the Trust regarding his employment contract, dated 10 August 2015;

• Email exchange between Dr Arshad and the Trust regarding his wages, dates between 25 August 2015 and 6 December 2016;

• Dr Arshad’s contract with ULHT, dated 28 September 2015; • Payslips from ULHT, various dates;

• Dr Arshad’s new contracts with the Trust, dated 12 November 2015; • Payslips from the Trust, various dates; • Interview transcript from interview between Dr Arshad and CFS, dated

27 June 2017; • Dr Arshad’s Bank Account statements, November 2015 – April 2017; • Mr D’s HSBC business bank accounts, dates between September 2015

– May 2017; • XXX; • Screenshot of Dr Arshad’s Lloyds online bank account front page; and • Testimonial evidence in support of Dr Arshad, various dates.

The Tribunal’s Approach 16. 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 Arshad 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. 17. The Tribunal reminded itself that it must form its own judgment about the witness evidence it heard and the reliability of each witness, including Dr Arshad. It noted that it



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must decide whether to accept or reject such evidence, and where it is accepted, to decide the weight to attach to it. 18. The Tribunal reminded itself that the standard of proof was the balance of probabilities. It also bore in mind that there was a single standard (Re B [2008] UKHL 35) but that, as stated in R ota IPCC Hayman and Bannister [2008] EWHC 2191 (Admin) the inherent unlikelihood of the occurrence, seriousness of the allegation, seriousness of consequences “do not require a different standard of proof or especially cogent standard of evidence, merely appropriately careful consideration by the tribunal [of the evidence]”. 19. The Tribunal was mindful that the allegation of dishonesty is one of the most serious that a professional can face. It was also mindful that (a) the doctor had known that on a previous occasion duplicate payments of salary to him had been discovered and (b) systems records were likely to flag up an issue in due course in relation to his payment by the two Trusts: for example, both Trusts were paying into the doctor’s pension. The Tribunal was mindful that it should carefully scrutinise the evidence, bearing in mind the above factors. 20. Paragraphs 3 and 6 contain allegations of dishonesty. The Tribunal noted that the test for dishonesty is as set out in Ivey v Genting Casinos (UK) Limited (t/as Crockfords Club) [2017] UKSC 67 (‘Ivey’) in that it must;

…first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts…[and] 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 had done is, by those standards, dishonest.

21. The Tribunal also bore in mind that it should assess and determine each paragraph and sub-paragraph of the Allegation separately. It reminded itself that while it could draw inferences from the evidence, it must not speculate as to any further evidence that has not come before it. The Tribunal took account of the requirement to give sufficient and clear reasons for its determination.

The Tribunal’s Analysis and Assessment of the Evidence

22. 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. 23. The Tribunal’s starting point in its consideration was that it was clear that certain facts were not in issue between the GMC and Dr Arshad. The facts not in issue included that:



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• Dr Arshad was employed by the Trust and on rotation at ULHT between

7 October 2015 and 30 April 2017;

• Dr Arshad received two standard employment contracts relating to his

employment, one from the Trust and one from ULHT. Both specified an

annual salary and excluded working for others. Dr Arshad signed and

returned the contract from ULHT only;

• Dr Arshad completed payment details for each Trust, specifying a Lloyds Bank

account, which was in his name;

• During his employment, Dr Arshad was issued with payslips from each Trust;

• Each payslip specified working hours of approximately 173 hours per month

for each full month that Dr Arshad worked;

• The payments indicated in each payslip were paid into the said Lloyds Bank

Account;

• Payments for household expenses of Dr Arshad, including Gym membership, Water Rates, Mortgage payments, etc. were paid from the Lloyds Bank Account. From October 2015 the payments were limited to direct debits and standing orders. From approximately September 2016 payments included domestic spending using a card registered to the account;

• The payments from both Trusts were discovered in 2017 during a National Fraud Initiative Investigation;

• Dr Arshad accepted there had been an overpayment and he has repaid it in its entirety; and

• The precise figures of the overpayment are not in dispute. 24. The Tribunal reminded itself that the GMC had the burden of proving that Dr Arshad ‘knew’ that he was being paid two full-time salaries. The Tribunal accepted the advice that the state of a person’s mind and therefore his knowledge was a matter of fact, and was provable by evidence, as indicated in case law, Basson v GMC [2018] EWHC 505 (Admin) paragraph 17 and also Edgington v Fitzmaurice [1885] 29 CHD 459. It accepted that Dr Arshad’s knowledge was a matter of proof by inference from the surrounding facts that it found. 25. Basson states:

“Paragraph 17 The appellant appeals against this finding. The question for me is whether the tribunal's finding was legitimately made. In Edgington v Fitzmaurice (1885) 29 Ch D 459, Bowen LJ famously said that the state of a man's mind is as much a fact as the state of his digestion. Therefore, in civil proceedings that fact, the state of the man's mind, is to be proved in the usual way by the necessary body of evidence on the balance of probabilities. An appellate challenge to a finding of fact is always highly demanding. However, the state of a person's mind is not something that can be proved by direct observation. It can only be proved by inference or deduction from the



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surrounding evidence. It has been said that the appellate challenge, where the disputed fact has been proved by inference or deduction, is less stringent than where the challenge is to a concrete finding of fact. In other cases, however, it has been said that the standard is the same.”

26. Therefore, the Tribunal went on to consider what evidence might give rise to inferences in the case. It noted the following matters:

• Dr Arshad had two contracts, completed two payment forms with bank details and received two payslips;

• The payslips themselves and the detail on them; • There were two salary payments into the account, one from each

Trust; • The Lloyds Bank Account belonged to the doctor; • There was spending from the Lloyds Bank account, using the money

paid, for Dr A’s household expenses; • The doctor’s answers in interview had been inaccurate, and possibly

intended to mislead; • The doctor had spoken/emailed with the payroll staff at both Trusts

concerning his salary at the commencement of his employment; and • This was the second time Dr Arshad has been paid two salaries.

27. Further, the Tribunal noted that the GMC relied on the implication of evasion from answers given by Dr Arshad in the CFT interview. Regarding the CFT interview, the Tribunal noted that Dr Arshad said that the letter inviting him to interview had given very little information about the allegations. Neither party produced the letter inviting Dr Arshad to interview. 28. It was recorded in the interview that the investigator had not discussed the details of the allegation with Dr Arshad before the interview commenced. It appeared from the record of the interview that the documents on which the doctor was being questioned were being produced to him for the first time during the interview. 29. During the interview, on several occasions Dr Arshad offered the investigators access to the bank account records in question. Further, in the interview the doctor maintained a position that:

• he had access to his payslips but had not analysed them; • that his payments from the Trust and ULHT had been paid into a

‘savings bank account’ and that he lived off his father’s business accounts;

• he did not understand how his payments were split between the trusts but he did not think it incorrect to receive a payment from both trusts;

• he collected some Lincoln payslips but never opened them;



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• he handed the unopened payslips to his father; and • Dr Arshad only looked at the overall balance on the account.

30. Having considered the evidence the Tribunal made findings in relation to the facts of the case. Firstly, Dr Arshad was not and never had been a good manager of his finances. The Tribunal found that Dr Arshad was very poor at matters of personal administration, in particular his own finances. This was confirmed by several witnesses. 31. The Tribunal accepted the evidence of Ms C, who was a particularly compelling witness and very clear regarding Dr Arshad’s difficulties in this respect. The Tribunal also heard from Mr D who confirmed that Dr Arshad was very poor with personal administration. 32. In addition, the Tribunal noted emails from both Trusts where they had chased Dr Arshad in relation to administrative matters including signed contracts, wage slips and pre-employment check documentation. 33. The Tribunal found that at the relevant time, Dr Arshad was experiencing a very stressful period in his life. He had returned to work after a two and a half year break and resumed with a position some distance from his home address. The Tribunal was given uncontested evidence concerning Dr Arshad’s marriage breakdown, in or around October 2015, XXX. This evidence was not disputed, and it appeared reasonable that this would be stressful to Dr Arshad. 34. The Tribunal accepted the evidence of Ms C, XXX she had felt the need to be in frequent contact by telephone with Dr Arshad, during this period. This, she informed the Tribunal, was unusual. It also, heard the evidence of Dr B, that he had had concerns about Dr Arshad’s emotional wellbeing at the relevant time XXX. 35. The Tribunal also heard from Ms H, regarding the commencement of her relationship with Dr Arshad and the degree of stress he was experiencing around September/October 2015. This evidence was not disputed. The Tribunal accepted that Dr Arshad’s general poor personal administration and the stressful period in his personal life had an effect on his attention to his finances. 36. The Tribunal accepted that Mr D is a successful businessman and had a substantial degree of involvement with Dr Arshad’s finances. The Tribunal accepted Mr D’s evidence that he owned and operated several businesses and also owned a number of properties. Mr D told the Tribunal that he had helped Dr Arshad apply for a mortgage for his first house purchase and paid a substantial deposit. Mr D gave evidence that he administered the Lloyds bank account on his son’s behalf. Mr D had a detailed knowledge of the entries in the Lloyds’ bank account. His explanations of payments and deposits were corroborated by other witnesses.



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37. The Tribunal accepted the evidence of Ms C that there had been a significant ‘intermingling’ of the finances of Dr Arshad and his father. The Tribunal noted the explanation that Mr D had used the account in November 2016 to pay for his own Hajj tour, which both Mr D and Dr Arshad confirmed. Mr D had also moved a large sum out of the account before giving Ms H a card in September 2016. It noted the evidence of Ms I, that payslips arrived at Mr D’s office not having been opened. Ms I had a clear recollection of handling the unopened payslips and was credible in her account. 38. The Tribunal found that in or around September 2016 when Ms H and Dr Arshad started cohabiting, she was provided with and used a debit card for Dr Arshad’s Lloyds bank account from October 2016 onwards. The Tribunal noted evidence that the bank account statements were consistent with the change in type of the transactions as shown on the bank account statements. The Tribunal accepted the evidence of Ms H who appeared a straightforward and credible witness. It noted that Ms H was able to describe several transactions and gave explanations of transactions which were consistent with those given by other witnesses. 39. The Tribunal found that the situation concerning the payment of trainees on rotation between the two trusts was confusing and confused. The Tribunal heard evidence from Mrs E, Ms F, Ms A and Dr Arshad. It noted evidence that there seemed to be a gap in understanding between the payroll and HR departments at the Trust and at ULHT. Ms A acknowledged that there was an unusual situation as far as the Hull Trust was concerned in relation to trainees on rotation from lead trusts outside the Deanery area. Doncaster NHS was the lead Trust, but the host Trust was out of its Deanery area, leading to confusion on the part of the Hull Trust. 40. The Tribunal took into account evidence of Mrs E, who stated that she had lately become aware that there was a different payment method for doctors on rotation between ULHT and the Trust. The Tribunal noted that there were issues involving variously payments of basic salary, banding, additional payments, and payments for travel. Several of the witnesses gave evidence that there could be situations in which there may be payments made to a trainee from two Trusts. 41. The Tribunal noted that, in his case before it, Dr Arshad maintained a consistent account. Dr Arshad stated that he had thought that payments from the two Trusts related to different parts of his income; he had handed over management of his finances to his father; he had not discussed the detail of the income with his father; he lived off one of his father’s business accounts. Dr Arshad was not moved from this version of events under cross-examination; the only point when he had difficulty in answering questions was when this questioning focused on his father’s financial affairs. Tribunal’s Findings in Relation to the Paragraphs of the Allegation



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Paragraph 1 a 42. The Tribunal noted that according to the wage slips that Dr Arshad was paid by both Trusts for working for approximately 173 hours, for each full time months work. This, Mr Lasker submitted, constituted a full-time salary payment by each Trust. Mr Mahmood submitted that payment for 173 hours did not reflect the full time salary a doctor would receive because it did not include such additional items as the banding, pay increments, extra hours worked or travel expenses. The Tribunal determined that working for 173 hours per month was effectively a full time working commitment. The differences between the two payslips was explained by reference to the two Trusts placing the doctor at different points on the MN37 pay scale. Any additional payments were supplementary, not always present and variable as in the case of expenses claims. The Tribunal therefore accepted the submission that the payments evidenced amounted to payment of a full time salary in the case of each Trust. 43. Therefore, the Tribunal found that Dr Arshad did receive two full time salaries and accordingly found paragraph 1(a) is proved. Paragraph 1 b 44. The Tribunal accepted that any doctor in receipt of payments in excess of entitlement would be under a duty to notify this to his employer. However, for the reasons set out elsewhere in this determination it found that Dr Arshad did not appreciate at the relevant time that what he had been paid was in fact two full time salaries. In that case the obligation to either Trust had not been engaged. 45. In the circumstances, the Tribunal determined that Dr Arshad did not fail to inform either Trust that he was receiving two salaries and accordingly, it found paragraph 1(b) not proved. Paragraph 2 a 46. The Tribunal accepted the submission that in these charges ‘knowledge’ meant actual, subjective knowledge. For example, Dr Arshad had not been charged that he ‘knew’ or ‘ought to have known’ any of the facts. Therefore, the question was what the GMC proved Dr Arshad to have known at the time. 47. The Tribunal carefully weighed the force of the inferences set out above with its findings in relation to the management of Dr Arshad’s personal finances. Although he had received two contracts, completed two payment forms and received two payslips which detailed payments to him from two Trusts, it accepted that at the time Dr Arshad’s attention to his financial affairs had been limited. It accepted that, already poor at managing his personal administration, he had been significantly



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affected by his personal circumstances. It also accepted that Dr Arshad’s father had been effectively in control of Dr Arshad’s Lloyds bank account. The Tribunal noted the evidence that Dr Arshad only ever signed and returned one contract, to ULHT. Dr Arshad gave evidence that he just “did what I was told” i.e. in returning the documentation. 48. The Tribunal noted that there was evidence of confusion on the part of the ULHT staff about how payment of salaries for doctors on rotation from the Trust out of the Yorkshire and Humber Deanery area should be made. Further, in its view, matters of administration and pay were for the Trust to organise and clarify. 49. The Tribunal also acknowledged that Dr Arshad had been out of training for two and a half years and was likely to have struggled somewhat to familiarise himself with administrative procedures. 50. Mr Lasker submitted that it was sufficient in order for the GMC to prove its case if Dr Arshad had the requisite knowledge at any point. The Tribunal accepted that this was correct. It also noted that the payments in this case extended over a significant period. However, acknowledging that the facts of this case are unusual, it found that it was likely that, having given over the management of his financial affairs to his father, and in light of his attention being taken by other matters, Dr Arshad allowed the situation to persist. 51. The Tribunal noted that the GMC relied on the interview of Dr Arshad by the

CFT. It noted Dr Arshad’s concession that he had monitored the ‘overall balance of

the account’. The mistake as to doctor stating that the money being held in a

“savings” account was explained by the doctor in the hearing to mean an account

into which money was being saved. The Tribunal doubted that Dr Arshad would

have suggested that he was saving his income in the Lloyds Bank account if in fact

this was untrue, particularly because repeatedly offered to the CFT sight of his bank

statements. The Tribunal was of the view that the answers given in interview, as

well as indicating an intent to mislead could have other explanations, such as the

doctor not being aware of the payments into and out of the account.

52. In its view the interview had to be considered in light of the fact that

Dr Arshad stated that he had not been given any indication of the subject of the

interview and it was clear he had not been allowed to consider the documents

before hand. He had not been legally represented at the interview. As a result his

answers had been given very shortly without full consideration and viewed as a

whole, the Tribunal gave limited weight to these answers.

53. The Tribunal noted that Dr Arshad had had some discussion with the payroll staff in both trusts about his salary. The evidence was that this was prompted by his father, and the Tribunal did not feel that detracted from its finding that Mr D was in control of the account and Dr Arshad was unaware of transactions.



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54. The Tribunal carefully considered the likelihood that Dr Arshad had set out to actively defraud the NHS. It bore in mind that this was the second occasion when Dr Arshad had been in receipt of payment of two salaries in error. It considered whether this made it more likely that he had intended to deceive on this occasion. In its view the previous occurrence made it less likely that this was the case because the error had been discovered on a previous occasion and Dr Arshad had been required to repay a considerable amount of money. Balancing the potential risk of reputational damage against the potential financial gain, the Tribunal considered that it was unlikely. The Tribunal bore in mind that there was no evidence that Dr Arshad was in financial need at the time and the family were relatively well off. Further to this, the risk of discovery was high and the likely reputational damage was great. In conclusion, bearing mind Dr Arshad’s good character, and having read his positive testimonials, the Tribunal determined that it was inherently improbable that he was seeking to defraud the NHS. 55. Accordingly, in light of its other findings about the management of Dr Arshad’s financial affairs, the Tribunal found that the GMC had not proved that Dr Arshad knew that he was receiving two full time salaries. In all the circumstances, the Tribunal determined that the GMC had not done enough to satisfy the burden of proof in relation to this paragraph of the Allegation. 56. Therefore, the Tribunal found paragraph 2 a is not proved. Paragraph 2 b 57. The Tribunal understood paragraph 2 b to turn on its finding as to whether Dr Arshad had knowledge of his receipt of two full time salaries, which he ought not to have received. Since it had found that it was not proved that he did know he was in receipt of two full time salaries, it follows that this paragraph of the Allegation fell away. Therefore, the Tribunal found paragraph 2 b not proved. Paragraph 2 c 58. The Tribunal determined that, for the reasons listed above in respect of paragraphs 2 a and 2 b, it did not find that Dr Arshad knew that he should inform the Trusts that he was receiving two full time salaries. Therefore, the Tribunal found paragraph 2 c is not proved. Paragraph 3 a 59. The Tribunal found that it was not proved that Dr Arshad knew he was in receipt of two full time salaries. Having made that finding, and in accordance with the test laid out in Ivey, it did not find that Dr Arshad had acted dishonestly



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according to the standards of ordinary decent people. Therefore, the Tribunal found paragraph 3 a is not proved. Paragraph 3 b 60. For the same reason as identified in paragraph 3 a of its determination, the Tribunal did not find that Dr Arshad acted dishonestly and found paragraph 3 b of the Allegation not proved. Paragraph 4 a to 4 e 61. These paragraphs were admitted and found proved at the outset of the proceedings. Paragraph 5 a 62. The Tribunal took into account the evidence of the GMC and Dr Arshad where he accepted that he did say that it was a savings account. However, it noted the explanation from Dr Arshad that he misinterpreted the nature of the bank account and also treated the account as a savings or holding account, regardless of its status. It also noted that there had been a significant amount of monies accumulating in the account until at least October 2016. 63. The Tribunal noted the evidence of a screen shot of Dr Arshad’s online Lloyds bank account. It shows that the account is a classic account linked with a standard saver account. The Tribunal accepted that Dr Arshad, at the relevant time, did also have a least one Lloyds bank account entitled ‘Saver’ and that this may have contributed to his confusion. Notwithstanding that Dr Arshad provided the bank account details for payment, for the reasons set out above in this determination, the Tribunal found that Dr Arshad was not effectively managing his personal finances. 64. The Tribunal has already noted its view in relation to the interview that Dr Arshad was giving answers for which he had no preparation or legal representation and of which he had limited understanding. 65. In all the circumstances, the Tribunal was not satisfied that Dr Arshad had knowingly stated that the account was a savings account when it was not. Therefore, found paragraph 5 a is not proved. Paragraph 5 b 66. The Tribunal has set out above its findings in relation to Dr Arshad’s state of knowledge of his Lloyds bank account. It had accepted that he had very limited knowledge of the activity in the account. He did not have a debit card or password for the online account. The Tribunal accepted the evidence of the witnesses,



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Ms H and Mr D who were credible and were consistent with the evidence of Dr Arshad. Therefore, the Tribunal determined that it had not been proved that Dr Arshad did know what was happening in the account, including that money was leaving the account regularly. Accordingly, it found paragraph 5 b is not proved. Paragraph 5 c i 67. The Tribunal noted that in the interview Dr Arshad stated that: “I look at the overall balance” but that he did not “analyse each statement”. In his evidence Dr Arshad said that he wasn’t aware of the balance of the account. The Tribunal also noted that in giving evidence Dr Arshad said that his answers in interview had been incorrect and ill judged. Dr Arshad told the Tribunal that after the interview he had instructed a representative who had tried to obtain a copy of the interview transcript but initially this had been refused. The Tribunal was provided with copies of correspondence to confirm this in the bundle. 68. The Tribunal accepted the evidence of Mr D, where he asserted that he was protecting his son from missing any payments and that Dr Arshad had no reason to regularly check his balance. The Tribunal has already made findings about the lack of control of his account by Dr Arshad. Notwithstanding his apparent admission in interview and because of the circumstances of the interview, the Tribunal was not satisfied that Dr Arshad knew the balance in his Lloyds bank account at the time of the interview, covering the relevant period. Accordingly, the Tribunal found paragraph 5 c i is not proved. Paragraph 5 c ii 69. In light of its findings in relation to Dr Arshad’s lack of management of his bank account, the Tribunal was not satisfied that he was aware of payments being made out of the account. It had accepted that effective management of the account was in the hands of Mr D senior and that payments by debit card after September 2016 were being made by Ms H. 70. Therefore, the Tribunal found paragraph 5 c ii is not proved. Paragraph 5 d 71. The Tribunal accepted that Dr Arshad had no awareness that Ms H was using this particular Lloyds bank account, from his and her evidence. This is supported by the evidence of Mr D who confirmed that he gave Ms H access to account and that she didn’t explain this to Dr Arshad. The Tribunal explored the use of the bank account with Ms H who proved to be credible and consistent. Accordingly, the Tribunal was not satisfied that Dr Arshad was aware that day to day spending was being made from this particular account and the Tribunal found paragraph 5 d is not proved.



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Paragraph 6 a to 6 e 72. In light of its findings in relation to paragraph 5 a to 5 d of the Allegation, the Tribunal did not find that Dr Arshad had been dishonest in relation to any of the paragraphs 6 a to 6 e. The Tribunal found that it was not proved that Dr Arshad knew that the account was not a savings account; that the money was leaving the account, that he was aware of the balance of the account or that he had used some or all of the salary payments or the day to day spending on the account. Having made that finding, and in accordance with the test laid out in Ivey, it did not find that Dr Arshad had acted dishonestly according to the standards of ordinary decent people. Therefore, the Tribunal found paragraph 6 a to 6 e is not proved. The Tribunal’s Overall Determination on the Facts 73. The Tribunal has determined the facts as follows:

1. Between 7 October 2015 and 30 April 2017 (‘the Period’) whilst you were employed by Doncaster and Bassetlaw Hospitals NHS Trust (‘Doncaster NHS’) and on rotation at United Lincolnshire Hospitals NHS Trust (‘ULHT’) you:

a. received a full time salary from both Doncaster NHS and ULHT; Determined and found proved

b. failed to inform Doncaster NHS and / or ULHT that you were receiving two full time salaries. Found Not Proved

2. You knew that you:

a. were receiving two full time salaries; Found Not Proved

b. should not be receiving a full time salary from both Doncaster NHS and ULHT; Found Not Proved

c. should have informed Doncaster NHS and / or ULHT that you were receiving two full time salaries. Found Not Proved


a. 1 a. was dishonest by reason of paragraphs 2 a. and 2 b.; Found Not Proved

b. 1 b. was dishonest by reason of paragraphs 2 a. and 2 c. Found Not Proved

4. On 27 June 2017 during an interview with the Counter Fraud Squad you said words to the effect that you:



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a. received your salaries from Doncaster NHS and / or ULHT into a separate savings account (‘the Account’); Admitted and found proved

b. did not withdraw any money from the Account during the Period; Admitted and found proved

c. were not aware of the balance of the Account during the Period; Admitted and found proved

d. had not touched your salary payments from Doncaster NHS and / or ULHT and they were still ‘available to repay back to the Trust’; Admitted and found proved

e. you withdrew your day to day spending from another account. Admitted and found proved

5. You knew that:

a. the Account was not a savings account; Found Not Proved

b. money was leaving the Account regularly during the Period; Found Not Proved

c. you had:

i. been aware of the balance of your Account during the Period; Found Not Proved

ii. used some and / or all of the salary payments and they were no longer available in the Account to repay to the Trust; Found Not Proved

d. day to day spending was coming out of the Account during the Period. Found Not Proved


a. 4 a. was dishonest by reason of paragraph 5 a.; Found Not Proved

b. 4 b. was dishonest by reason of paragraph 5 b.; Found Not Proved

c. 4 c. was dishonest by reason of paragraph 5 c. i.; Found Not Proved

d. 4 d. was dishonest by reason of paragraph 5 c. ii.; Found Not Proved

e. 4 e. was dishonest by reason of paragraph 5 d. Found Not Proved



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And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct. To be determined

Determination on Impairment - 23/10/2019 1. The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether, on the basis of the facts that it has found proved as set out before, Dr Arshad’s fitness to practise is impaired by reason of misconduct.

The Evidence 2. In considering whether Dr Arshad’s fitness to practise is impaired, the Tribunal carefully considered all the documentary and oral evidence adduced during the course of these proceedings. 3. The Tribunal determined that the only facts found proved were factual matters including that Dr Arshad did receive two full time salaries and that he did make the statements as alleged in the Allegation. The Tribunal had already determined that Dr Arshad did not act dishonestly. Submissions 4. On behalf of the GMC, Mr Lasker submitted that the effect of the Tribunal’s findings is that there was no misconduct and in light of the Tribunal’s findings at the facts stage, it would be inappropriate to go on to consider impairment by misconduct. 5. On behalf of Dr Arshad, Mr Mahmood agreed with the GMC’s submission. The Relevant Legal Principles

6. The Tribunal reminded itself that at this stage of proceedings, there is no formal burden or standard of proof and the decision on impairment is a matter for the Tribunal’s judgment alone. 7. In approaching its decision, the Tribunal was mindful of the two stage process to be adopted. First, whether the Facts found proved were sufficient to amount to misconduct that was serious. Second, whether as a result Dr Arshad’s fitness to practise is currently impaired by reason of such misconduct. The Tribunal bore in mind the statutory overarching objective. The Tribunal’s Determination Misconduct



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8. The Tribunal reminded itself that misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances. For the doctor’s conduct to amount to misconduct it must be linked to the practise of medicine or else it must be conduct that otherwise brings the profession into disrepute, and it must be serious. As to seriousness, the Tribunal noted that this must be given its proper weight: it is conduct which would be regarded as deplorable by fellow practitioners. 9. The Tribunal took into account the submissions from the parties. In the Tribunal’s determination the overpayments to Dr Arshad arose from errors by the Trusts and it had not found that Dr Arshad had either knowingly received or retained the overpayment of salary or knowingly made incorrect statements when interviewed by the CFT. It therefore determined that there was no misconduct on the part of Dr Arshad on these facts. While the Tribunal acknowledge that it is a serious matter that Dr Arshad was paid two full time salaries by two different trusts, it accepts that this was not the fault of Dr Arshad. 10. The Tribunal has therefore determined that Dr Arshad’s actions do not amount to misconduct and that his fitness to practise is not impaired. 11. That concludes this case. Confirmed Date 23 October 2019 Mr Paul Moulder, Legally Qualified Chair



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ANNEX A – 15/10/2019

GMC Application to admit witness evidence by Video Link Submissions 1. On behalf of the GMC, Mr Lasker made an application under Rule 34(13) of the General Medical Council (‘GMC’) (Fitness to Practise Rules) 2004 as amended (‘the Rules’) for the evidence from Ms A, Senior Payroll Officer at Hull University Teaching Hospital NHS Trust, to be heard by video link. He explained that the application had already been discussed with defence at the Case Management stage and the Case Manager had allowed his application. He submitted that there would be no injustice or unfairness to Dr Arshad to hear the evidence by video link. 2. On behalf of Dr Arshad, Mr Mahmood did not oppose the application. Tribunal Decision 3. The Tribunal had regard of Rule 34(13) of the Rules which states:

“13. A party may, at any time during a hearing, make an application to the Committee or Tribunal for the oral evidence of a witness to be given by means of a video link or a telephone link.”

4. The Tribunal noted that the application has not been opposed and determined that there was no injustice to Dr Arshad to grant the application. It therefore determined to hear the evidence of Ms A by video link. Due to a technical difficulty, the Tribunal granted a further application, under the same rule and reasoning, to hear the evidence by telephone as opposed to video link.



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ANNEX B – 15/10/2019

Application from defence for witness evidence of Dr Arshad to be in private Submissions 1. On behalf of Dr Arshad, Mr Mahmood made an application under Rule 41(2) and Rule 41XXX of the General Medical Council (‘GMC’) (Fitness to Practise Rules) 2004 as amended (‘the Rules’) for the evidence of Dr Arshad to be heard in private, in its entirety. He submitted that the matters relating to Dr Arshad’s finances XXX. 2. Mr Mahmood submitted that it would be very difficult to balance examination in public and private and that it would be much better for the evidence to be heard entirely in private. Further, he submitted that there would be no injustice or unfairness to the GMC to grant the application. 3. On behalf of the GMC, Mr Lasker agreed that any matters relating to Dr Arshad’s XXX should be in private, however he opposed the application for the evidence to be heard in private in its entirety. He submitted that matters relating to Dr Arshad’s finances are central to this case and that it was in the public interest for these matters to be heard in public session. Tribunal Decision 4. The Tribunal had regard to Rule 41(2) and 41XXX of the Rules which state:

“41(2) The Committee or Medial Practitioners Tribunal may determine that the public shall be excluded from the proceedings or any part of the proceedings, where they consider that the particular circumstances of the case outweigh the public interest in holding the hearing in public”

“41XXX) Subject to paragraphs (4) to (6), the Committee or a Tribunal shall sit in private, where they are considering-

…

XXX”

5. The Tribunal determined that is was fair and proper to grant the application in relation to matters relating to Dr Arshad’s XXX. This application can be granted without injustice to the GMC or the public. However, the Tribunal determined that it is not in the interest of justice or in the public interest for all of the evidence of Dr Arshad to be heard in private.



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6. While the Tribunal balanced the interests of Dr Arshad with the public interest, it bore in mind its duty for these proceedings to be transparent and conducted in public, where appropriate, in line with the Rules. It noted that when any matters relating to Dr Arshad’s XXX, the Tribunal will proceed in private and proceed in public for matters not relating to XXX. Therefore, it determined to refuse the application for all Dr Arshad’s evidence to be heard in private. 7. XXX.



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ANNEX C – 17/10/2019

Defence application to admit witness evidence by Video Link Submissions 1. On behalf of Dr Arshad, Mr Mahmood made an application under Rule 34(13) of the General Medical Council (‘GMC’) (Fitness to Practise Rules) 2004 as amended (‘the Rules’) for the evidence from Dr B, Consultant ENT, Head and Neck Surgeon at Subang Jaya Medical Centre in Malaysia and Dr Arshad’s former Clinical Supervisor at ULHT, to be heard by video link. He explained that the application had already been discussed with the GMC at the Case Management stage and the Case Manager had allowed his application. He submitted that Dr B was abroad and unable to be here in person. He submitted that there would be no injustice or unfairness to Dr Arshad to hear the evidence by video link. 2. On behalf of the GMC, Mr Lasker did not oppose the application. Tribunal Decision 3. The Tribunal had regard of Rule 34(13) of the Rules which states:


4. The Tribunal determined that the application had not been opposed, had been discussed at Case Management stage, an application had been granted and that there was no injustice to the GMC to grant the application. It therefore determined to hear the evidence of Dr B by video link.



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ANNEX D – 17/10/2019

Defence application to admit witness evidence by video link Submissions 1. On behalf of Dr Arshad, Mr Mahmood made an application under Rule 34(13) of the General Medical Council (‘GMC’) (Fitness to Practise Rules) 2004 as amended (‘the Rules’) for the evidence from Ms C, Dr Arshad’s sister, to be heard by video link. He explained that the application had already been discussed with the GMC at the Case Management stage and the Case Manager had allowed his application. He submitted that there would be no injustice or unfairness to Dr Arshad to hear the evidence by video link. 2. On behalf of the GMC, Mr Lasker did not oppose the application. Tribunal Decision 3. The Tribunal had regard of Rule 34(13) of the Rules which states:


4. The Tribunal acknowledged that the application had not been opposed, had been agreed at Case Management stage and that there was no injustice to the GMC to grant the application. It therefore determined to hear the evidence of Ms Arshad by video link. Due to a technical difficulty, the Tribunal granted a further application, under the same rule and reasoning, to hear the evidence by telephone as opposed to video link.



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ANNEX E – 17/10/2019

Application regarding Relevance of Evidence Submissions 1. On behalf of Dr Arshad, Mr Mahmood made an application under Rule 34(1) of the General Medical Council (‘GMC’) (Fitness to Practise Rules) 2004 as amended (‘the Rules’) for the GMC to discontinue cross-examination on a specific strand of questioning of Mr D. He submitted that it was not relevant to these proceedings and involved Mr D’s private and personal business dealings. Mr Mahmood submitted that it would not be fair or in the interest of justice to continue with that line of questioning. 2. On behalf of the GMC, Mr Lasker submitted that cross-examination on the strand of questioning should be allowed to continue because it was relevant in establishing the credibility of the evidence of Mr Arshad. Tribunal Decision 3. The Tribunal had regard of Rule 34(1) of the Rules which states:

“34(1) The Committee or a Tribunal may admit any evidence they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a court of law.”

4. The Tribunal noted that the strand of questioning involved Mr D’s business dealings, that it was not relevant to our current considerations which were limited to Dr Arshad. It determined that it was not fair or in the interest of justice to continue questioning in this specific matter. It therefore determined to accede to the application and invite Mr Lasker to continue cross-examination of Mr D on a different line of questioning.

PUBLIC RECORD - MPTSENT, Head, and Neck Surgeon at Subang Jaya Medical Centre in Malaysia, to be...

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