FITNESS TO PRACTISE PANEL OF THE MEDICAL PRACTITIONERS TRIBUNAL SERVICE 28 TO 30 AUGUST 2013 7th Floor, St Jamess Buildings, 79 Oxford

Street, Manchester, M1 6FQ Name of Respondent Doctor: Registered Qualifications: Area of Registered Address: Reference Number: Type of Case: Panel Members: Dr Alem KAHSAY Lakarexamen 1985 Stockholm London 4169572 New case of impairment by reason of misconduct Mr I Spafford, Chairman (Lay) Mr S Marr (Lay) Mr T George (Medical) Mr D Mason Ms V Bean Ms A Carney

PUBLIC

Legal Assessor: Secretary to the Panel: Representation:

GMC: Mr Paul Williams, Counsel, instructed by GMC Legal Doctor: Not present and not represented ALLEGATION That being registered under the Medical Act 1983, as amended: 1. For the periods 1 September 2008 - 28 November 2008 and 17 August 2009 16 October 2009 you were employed as a Locum Consultant in Clinical Oncology by Belfast Health and Social Care Trust (The Belfast Trust); Found proved 2. In treating Patient A at the Belfast Trust you 1

a. planned and delivered radiotherapy to the root of the left lung which was an unaffected area, Found proved, as amended b. 3. failed to treat the affected area; Found proved

In treating Patient B at the Belfast Trust you a. planned radiotherapy to the left hilum of the lung which was an unaffected area, Found proved b. failed to treat the affected area; Not found proved

4. In treating Patient C at the Belfast Trust the high dose radiotherapy field you prescribed did not include all tumour-containing tissue; Found proved 5. In treating Patient D at the Belfast Trust, the high dose radiotherapy field you prescribed did not include all tumour-containing tissue; Found proved 6. From 8 to 19 November 2010 you were employed as a Locum Consultant in Clinical Oncology by the Shrewsbury and Telford Hospital NHS Trust (the Shrewsbury Trust); Found proved 7. In treating Patient E at the Shrewsbury Trust you correctly decided to reduce Patient Es chemotherapy, but failed to alter the dose on the prescription; Found proved And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct. Determination on Facts Mr Williams: Dr Kahsay is neither present nor represented at these proceedings. The Panel has therefore considered whether notice of the hearing had been properly served upon him in accordance with Rule 40 of the Fitness to Practise Rules 2004 (the Rules) and Schedule 4, paragraph 8 of the Medical Act 1983, as amended. The Panel has been provided with a copy of the Notice of Hearing dated 26 July 2013 along with confirmation of attempted delivery at Dr Kahsays registered address from Royal Mail, dated 27 July 2013. The Notice of Hearing was also copied to Dr Kahsays email address on 26 July 2013. Having considered this information, the Panel is satisfied that all reasonable efforts have been made to serve notice of this hearing upon Dr Kahsay. 2

Having been satisfied that the Notice of the Hearing has been properly served, the Panel went on to consider whether to proceed with the case in Dr Kahsay's absence under Rule 31 of the Rules. In determining this, the Panel had in mind that its discretion to proceed in the absence of the practitioner should be exercised with great caution and with close regard to the overall fairness of the proceedings. In making its decision the Panel balanced the need for fairness to the doctor with the desirability that a hearing should proceed within a reasonable time and in fairness to the other parties in the case. The Panel has noted Dr Kahsays email to the GMC of 19 December 2012. In this he states that he no longer lives in the UK, that he has told the GMC that he is no longer interested in working in the UK, and that he has asked for his registration to be cancelled. He goes on to state: Why are you bothering me again and again I am not intereste din [sic] working in the UK, Period! I told the GMC not to contact me anymore and I dont have any address in the UK. Pleases top [sic] harassing me. The Panel has taken account of the public interest in this case proceeding and has balanced Dr Kahsay's interests with the interests of the public and the wider public interest. The public interest includes hearing cases expeditiously and without undue delay. Dr Kahsays email makes it clear that he has no wish to engage with these proceedings. He has also made no request for an adjournment and, given Dr Kahsays expressed wish to have no further contact with the GMCs regulatory processes and with medical practice in the UK, the Panel considered that an adjournment would serve no purpose. In all the circumstances, the Panel considers that Dr Kahsay has chosen not to engage with these proceedings or to be present or represented at this hearing. It considers that it is in the public interest for this hearing to proceed and has exercised its discretion in determining to do so. The Panel has not drawn any adverse inference from Dr Kahsays absence. DETERMINATION: Application to amend under Rule 17(3) Dr Alem Kahsay (4169572) You made an application to amend paragraph 2 of the Allegation in accordance with Rule 17(3) of the Rules. You proposed that amendments should be made to paragraph 2 by deleting the following words: and delivered

You submitted that in the light of the evidence from Dr F, Consultant Clinical Oncologist, Christie Hospital, and because the amendment can be made without 3

injustice and it lessens the allegation, it is appropriate to make the amendment. The Panel acceded to the application. Paragraph 2 now reads as follows:

2.

In treating Patient A at the Belfast Trust you a. planned radiotherapy to the root of the left lung which was an unaffected area,

DETERMINATION: FACTS The Panel has given consideration to all the evidence adduced in this case, both oral and documentary, and to the submissions made by you on behalf of the General Medical Council (GMC). You stated that the Panel has read the statements of Dr F, Consultant Clinical Oncologist, Christie Hospital, Dr G, Consultant Clinical Oncologist, Northern Ireland Cancer Centre and Dr H, Consultant Clinical Oncologist, the Royal Shrewsbury Hospital. You further stated that the Panel has heard the oral evidence of Dr F and Dr G. You reminded the Panel that Dr Kahsay is not present today and there has been no contrary evidence from him. You submitted that the Panel should not speculate on any evidence Dr Kahsay might have adduced. You submitted that the assertions and allegations are plain and the Panel can decide, based on the evidence before it, that the facts can be found proved. The Panel has borne in mind that the burden of proof rests on the GMC throughout and that the standard of proof is the civil standard, namely the balance of probabilities. The Panel has considered each paragraph of the Allegation separately and has made the following findings: Paragraph 1

1. For the periods 1 September 2008 - 28 November 2008 and 17 August 2009 - 16 October 2009 you were employed as a Locum Consultant in Clinical Oncology by Belfast Health and Social Care Trust (The Belfast Trust);
Has been found proved The Panel relied on the statement of Dr G that Dr Kahsay was employed as a Consultant in Clinical Oncology by Belfast Health and Social Care Trust for the relevant periods. Dr G confirmed in his oral evidence that he had carried out a review of Dr Kahsays work which covered the two Locum periods. The Panel also 4

notes that Dr F reviewed Dr Kahsays patient notes from Belfast Health and Social Care Trust for his report dated 1 June 2012. The Panel finds this allegation proved. Paragraph 2(a)

2.

In treating Patient A at the Belfast Trust you a. planned and delivered radiotherapy to the root of the left lung which was an unaffected area,

Has been found proved The Panel has relied on Dr Fs report dated 1 June 2013 in which he stated that Patient A had received radiotherapy to the lung following surgery for a carcinoma at the apex of the left lung. He went on to state that it was found that the radiotherapy had not been directed to the apex of the left lung (the tumour bed) but had been given instead to the root of the left lung which was the unaffected area. During his oral evidence Dr F confirmed the findings in his report. The Panel found Dr Fs evidence to be credible and has no reason to doubt his findings. Accordingly, the Panel finds this allegation proved. Paragraph 2(b)

2.

In treating Patient A at the Belfast Trust you b. failed to treat the affected area;

Has been found proved The Panel relied on the same information from Dr Fs report and his oral evidence, as previously found proved in paragraph 2(a), in that, Dr Kahsay failed to treat the affected area and had treated the apex of the left lung instead of to the root of the left lung which was the unaffected area. Accordingly, the Panel finds this allegation proved. Paragraph 3(a)

3.

In treating Patient B at the Belfast Trust you a. planned radiotherapy to the left hilum of the lung which was an unaffected area,

Has been found proved The Panel notes Dr Fs report stated that Patient B had a tumour in the right lower lobe. In Dr Kahsays treatment planning he had outlined an area in the left hilum which had normal anatomy. He stated that Dr Kahsay completed his treatment plan 5

and the radiotherapy radiographers identified that the planned treatment was on the left hand side of the chest but that the tumour was recorded as being on the right. Dr F confirmed his findings during his oral evidence. Accordingly, the Panel finds this allegation proved. Paragraph 3(b)

3.

In treating Patient B at the Belfast Trust you b. failed to treat the affected area;

Has not been found proved In Dr Fs report he states that the correct area, i.e. the right lower lobe, was subsequently planned and treated. Dr F does not state who carried out this planning and treatment. When questioned, Dr F was unable to say who carried out the subsequent planning and treatment. Accordingly, the Panel finds this allegation not proved. Paragraph 4

4. In treating Patient C at the Belfast Trust the high dose radiotherapy field you prescribed did not include all tumour-containing tissue;
Has been found proved The Panel has noted in Dr Fs report stated that this patient had an extensive Grade C muscle invasive transitional cell carcinoma of the bladder. He stated that the area treated by Dr Kahsay did not include the dome of the bladder and tumour and did not include the posterior third of the bladder. He went on to state that the planned target volume did not include the posterior rim of the bladder and the catheter balloon and therefore, all tumour containing tissue was not included in the radiotherapy field. The Panel also took account of the review undertaken by Dr G to which Dr F concurred. Dr G also stated that given the apparent tumour burden, this therapy even if planned to an acceptable standard was unlikely to achieve cure. The planned and administered treatment would have potentially provided less effective palliation than would have been obtained from an appropriately planned volume. The Panel is satisfied with the evidence from both Dr F and Dr G and therefore finds this allegation proved. Paragraph 5

5. In treating Patient D at the Belfast Trust, the high dose radiotherapy field you prescribed did not include all tumour-containing tissue;
Has been found proved 6

Dr F reports that Patient D was referred for adjuvant radiotherapy following radical prostatectomy and that pathology suggested extra capsular disease and circumferential positive margin. He went on to state that neither the retro pubic space nor anastomosis had been included by Dr Kahsay in the radiotherapy highdose volume. He further stated that the radiotherapy treatment included only part of the prostrate bed and did not include the stitched join where the prostrate had been removed. In his review, Dr G stated that neither the retro-pubic space nor anastomosis were included in the GTV or PTV and that these were the highest risk for recurrence following surgery. The Panel accepts both Dr Fs and Dr Gs evidence and accordingly finds this allegation proved Paragraph 6

6. From 8 to 19 November 2010 you were employed as a Locum Consultant in Clinical Oncology by the Shrewsbury and Telford Hospital NHS Trust (the Shrewsbury Trust);
Has been found proved The Panel has noted Dr Hs statement dated 30 May 2013, in which she stated that a nurse had directed her attention to the entry made in the clinical notes by Dr Kahsay, dated 16 November 2010. The Panel finds no reason to doubt Dr Hs statement. The Panel finds, on the balance of probabilities that Dr Kahsay was working at the Shrewsbury and Telford Hospital NHS Trust between 8 and 19 November 2010. The Panel finds this allegation proved. Paragraph 7

7. In treating Patient E at the Shrewsbury Trust you correctly decided to reduce Patient Es chemotherapy, but failed to alter the dose on the prescription;
Has been found proved The Panel has noted Dr Hs statement dated 30 May 2013, in relation to Patient E, in which she stated that the entry made on the patients clinical notes by Dr Kahsay dated 16 November 2010 shows that he had consulted with Patient E and recorded that she was suffering from adverse effects following her previous dose of chemotherapy. She further stated that Dr Kahsay reduced her dosage to 80% of the original amount for her next course of treatment. She stated that the dosage had not been reduced on the prescription. She confirmed that Dr Kahsay should have amended the prescription when he made the clinical decision. She stated that this is good practice and aims to prevent such incidents from happening. The Panel notes Dr Fs confirmation that it is good practice to amend a prescription in these circumstances at the time the relevant decision is made. The Panel has also noted Dr Fs comments regarding Patient E that, if the original dose had continued, 7

Patient E may well have succumbed to the toxic effects of the chemotherapy. The Panel accepts both Dr Hs and Dr Fs evidence and finds this allegation proved. Determination on impaired fitness to practise Mr Williams: Background Dr Kahsay was employed as a Locum Consultant in Clinical Oncology by Belfast Health and Social Care Trust (The Belfast Trust) between 1 September 2008 to 28 November 2008 and 17 August 2009 - 16 October 2009. Dr Kahsay was also employed as a Locum Consultant in Clinical Oncology by the Shrewsbury and Telford Hospital NHS Trust (the Shrewsbury Trust) from 8 to 19 November 2010. At the Belfast Trust Dr Kahsay treated Patients A, B, C and D and at the Shrewsbury Trust he treated Patient E. At the Belfast Trust Dr Kahsay planned radiotherapy to the root of Patient As left lung which was an unaffected area, but failed to treat the affected area. Dr Kahsay planned radiotherapy to Patient Bs left hilum of the lung which was an unaffected area. In relation to Patient C at the Belfast Trust the high dose radiotherapy field which Dr Kahsay prescribed did not include all tumour-containing tissue. Dr Kahsay prescribed high dose radiotherapy for Patient D that did not include all tumourcontaining tissue. At the Shrewsbury Trust Dr Kahsay correctly decided to reduce Patient Es chemotherapy, but failed to alter the dose on the prescription. The medical records of all five of Dr Kahsays patients were reviewed by Dr F, Consultant Clinical Oncologist, Christie Hospital. Dr G, Consultant Clinical Oncologist, Northern Ireland Cancer Centre reviewed the cases of Patient C and D. The Panel has considered under Rule 17(2)(j) of the General Medical Council (GMC) (Fitness to Practise) Rules Order of Council 2004 whether, on the basis of the facts found proved, Dr Kahsays fitness to practise is impaired. It has taken account of all of the documentary evidence adduced including the oral evidence. It has also taken account of your submissions on behalf of the GMC. Submissions You stated that the Panel should consider if Dr Kahsays acts or omissions amount to misconduct and, if so, is that misconduct serious and, if so, is Dr Kahsays fitness to practise impaired. You reminded the Panel that Dr F concluded that treating all of the relevant patients should have fallen within Dr Kahsays sphere of competence. You also reminded the Panel that it was Dr Fs opinion that this was a case of simple carelessness. You also reminded the Panel that it was Dr Fs opinion in his report and in his oral evidence 8

that there were elements in Dr Kahsays care that demonstrated harm to patients and reduced the chance of cure. You submitted that some of the mistakes were picked up by other clinical staff, but this should have been avoided. You stated that Dr F concluded that Dr Kahsays actions and omissions fell seriously below the standard expected of a reasonably competent Locum Consultant in Clinical Oncology. You reminded the Panel that Dr G stated in his oral evidence that Dr Kahsay worked in isolation and never asked for any help. You submitted that if Dr Kahsay was struggling within the limits of his competence he could have asked for help. You referred the Panel to paragraph 3(a) of the GMCs guidance Good Medical Practice (2006). You submitted that there is evidence of non-engagement with the GMC and with the hearing process. You stated that Dr Kahsay has produced no evidence of his Continuing Professional Development or that he has remediated his practice. You stated that there is no evidence from Dr Kahsay in relation to insight nor that he has reflected on the events or on his practice in order to avoid risk to patients. You drew the Panels attention to the emails dated 14 December 2011, 17 and 24 January 2012 and 19 December 2012 from Dr Kahsay in relation to the GMC Performance Assessment, his request for Voluntary Erasure and his wish to no longer engage with the GMC. You submitted that all of your submissions underscore the evidence of Dr Kahsays impairment and submitted that that he is currently impaired. The Panel has exercised its own professional judgement. The Panel has noted Dr Fs conclusions in his report on Dr Kahsays treatment of the five patients, dated 1 June 2012. Dr Kahsay was the clinical oncologist with total responsibility for the planning of treatment for Patients A, B, C and D and he alone would have been involved in planning the radiotherapy fields. It is then the duty of the radiographers to administer the treatment as prescribed. Three Patients A, B and D have had their chance of cure significantly reduced by the inappropriate radiotherapy treatment and in his opinion the standard of care, in relation to each individual, fell seriously below the standard expected. It was only due to the vigilance of the radiographers that Patient C received treatment to an appropriate area. Patient E, the patient who was receiving chemotherapy at The Shrewsbury and Telford Hospitals NHS Trust would have received an inappropriate 9

dangerous dose of chemotherapy if it had not been for the vigilance of the chemotherapy sister. In Dr Fs opinion failure to alter the prescription by Dr Kahsay in relation to Patient E was an omission that fell seriously below the standard expected. In his opinion, for the five patients under consideration, for each, the standard of care provided by Dr Kahsay fell seriously below the standard of a reasonably competent Locum Consultant in Clinical Oncology.

The Panel has also noted the review of radical radiotherapy for urological cancers undertaken by Dr G, Consultant Clinical Oncologist, Northern Ireland Cancer Centre. Dr G concluded that Dr Kahsays treatment of Patients C and D fell below an acceptable standard of care. He stated that in both cases the contoured anatomy for planning shows poor clinical judgement by failing to identify either all tumours containing tissue (Patient C) or the anatomical site at greatest risk of recurrence following surgery (Patient D). The Panel has noted the statement dated 30 May 2013 from Dr H, Consultant Clinical Oncologist, at the Royal Shrewsbury Hospital, in relation to Patient E. Dr H stated that Dr Kahsay decided to reduce Patient Es dosage to 80%. A nurse was concerned as she could see that the dosage had not been reduced on the prescription. She stated that Dr Kahsay should have amended the prescription there and then when he made this clinical decision as this is good practice and aims to prevent such incidents from happening. The Panel considers that the acts and omissions in Dr Kahsays treatment of Patients A, C and D were serious as they reduced the chance of cure for the patients. The Panel considers that Dr Kahsays care amounted to misconduct and that this misconduct was serious. In relation to Patient B the Panel considers that Dr Kahsays care of Patient B resulted in a near miss and had it not been for the vigilance of the radiographers the radiotherapy would have been given to the wrong area. The Panel considers that the responsibility for identifying the correct area for treatment was Dr Kahsays alone and his failure to do so amounts to misconduct that was serious. In relation to Patient E the Panel considered Dr Kahsays failure to note on the prescription the change of dosage could have been considered an error on his part. The Panel may have viewed Dr Kahsays treatment in this case as deficient professional performance had this been an isolated incident. However, in the light of Dr Fs comments that Dr Kahsays inadequate treatment had been simple carelessness the Panel considers that this incident is also a case of serious misconduct. The Panel has taken account of paragraphs 3a and 68 of the GMCs guidance Good Medical Practice (206) which state: 10

3. In providing care you must: a. recognise and work within the limits of your competence
and

68. You must co-operate fully with any formal inquiry into the treatment of a patient and with any complaints procedure that applies to your work..
The Panel considers that even though Dr Kahsay was a Locum Consultant his clinical care should have been no different from any other Consultant. It notes Dr Gs evidence that Dr Kahsay worked in isolation and did not consult with his colleagues or ask for help. The Panel has noted that Dr Kahsay has failed to agree to a GMC Performance Assessment and is no longer engaging with his Regulatory Body. There is no evidence before the Panel that Dr Kahsay has acknowledged his failures in relation to all five patients or whether he has reflected on his treatment of them. The Panel also has no evidence of Dr Kahsays Continuing Professional Development. In the circumstances, the Panel has determined that Dr Kahsays fitness to practise is impaired by reason of his misconduct, pursuant to Section 35C(2)(a) of the Medical Act 1983, as amended. Determination on sanction Mr Williams: The Panel has determined that Dr Kahsays fitness to practise is impaired by reason of his misconduct. It has now considered what action, if any, to take in respect of Dr Kahsays registration. In so doing it has taken account of all of the information presented in this case, including the oral evidence, and your submissions on behalf of the GMC. You stated that in relation to the factual matters the Panel found there to be serious failures and incidents of carelessness on more than one occasion in relation to several patients. You submitted that Dr Kahsay has not demonstrated any insight, remediation or continuing professional development. You submitted that there remains a risk of repetition of his misconduct as Dr Kahsay has not engaged with the process or the GMC and does not wish to engage. You referred the Panel to the GMCs Indicative Sanctions Guidance (April 2009, revised August 2009) (the ISG). You submitted that the necessary and proportionate sanction in Dr Kahsays case is one of erasure. The decision of what action to take, if any, is one for the Panel.

11

The Panel has had regard to the ISG and notes that the purpose of a sanction is not to be punitive but to protect patients and the wider public interest. The public interest includes the protection of patients, the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour. The Panel has also borne in mind the principle of proportionality, weighing the interests of the public with Dr Kahsays interests. The Panel first considered whether it would be appropriate to conclude this case by taking no action on Dr Kahsays registration. In the light of its findings of serious misconduct, the Panel determined that it would be wholly inadequate to conclude this case with no further action. The Panel next considered whether placing conditions on Dr Kahsays registration would be sufficient. Any conditions must be appropriate, proportionate, workable and measurable. The Panel notes that Dr Kahsay has failed to engage with his Regulatory Body and has stated that he does not wish to practice in the United Kingdom. The Panel is not satisfied that Dr Kahsay would comply with conditions on his registration. The Panel is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Kahsays misconduct; nor, could conditions be devised that would protect the public interest and maintain public confidence in the medical profession. The Panel then considered whether suspension of Dr Kahsays registration would be sufficient. The Panel notes that 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 medical practitioner. Suspension is an appropriate response to misconduct which is sufficiently serious that action is required in order to protect patients and maintain public confidence in the profession. The Panel has noted Dr Kahsays lack of engagement with his Regulatory Body and with these proceedings. It notes that Dr Kahsay enquired about Voluntary Erasure, and then failed to complete and return his application form. Dr Kahsay made it clear in his emails to the GMC that he does not wish to cooperate with the GMC nor does he wish to practise in the United Kingdom, as he is living abroad. The Panel finds that this clearly demonstrates attitudinal problems. The Panel found that Dr Kahsay has demonstrated a particularly serious departure from the principles set out in Good Medical Practice and has demonstrated a reckless and careless disregard for the principles therein. The Panel notes that Dr Kahsays treatment of five patients over a period of time caused harm and in some cases that harm was serious. Dr Kahsay has not acknowledged his failings or the harm he caused. He has not provided any evidence that he has remediated his practice or of his continuing professional development. The Panel is not satisfied that Dr Kahsay will not repeat this behaviour. The Panel has no evidence to suggest that Dr Kahsay has insight. 12

Balancing all these factors, the Panel has determined that Dr Kahsays misconduct is fundamentally incompatible with his continuing to practise medicine. Therefore, it has determined that, in the particular circumstances of this case, it would not be sufficient nor proportionate to suspend Dr Kahsays registration. The Panel is of the view that the public interest and patient safety requires that it be made clear that Dr Kahsays behaviour, as detailed previously, is unacceptable in a member of the medical profession. Accordingly, the Panel has determined to direct that Dr Kahsays name be erased from the Medical Register. In the light of all the evidence presented to it, it is satisfied that erasure is a proportionate sanction in his case. The effect of the foregoing direction is that, unless Dr Kahsays exercises his right of appeal, his name will be erased from the Medical Register 28 days from the date on which written notice of this decision is deemed to have been served upon him. Determination on immediate sanction Mr Williams: Having determined that Dr Kahsays name be erased from the Medical Register, the Panel has now considered in accordance with Section 38(1) of the Medical Act 1983, as amended, whether to impose an immediate order of suspension on his registration. You referred the Panel to the GMCs Indicative Sanctions Guidance (April 2009, revised August 2009) (the ISG). You also referred the Panel to its determination on sanction. You submitted that the Panels reasoning in its sanction determination goes to the heart of an immediate order. Having considered all the circumstances in Dr Kahsays case, and the seriousness of the findings against him, the Panel has determined that it is necessary for the protection of members of the public, or otherwise in the public interest to impose an immediate order of suspension. The present Interim Order on Dr Kahsays registration is hereby revoked. The direction for erasure, as already announced, will take effect 28 days from the date upon which written notice of this decision is deemed to have been served upon Dr Kahsay, unless he lodges an appeal in the interim. If Dr Kahsay lodges an appeal, the immediate order will remain in force until the substantive direction takes effect. That concludes this case. Confirmed 13

30 August 2013

Chairman

14