PUBLIC RECORD. Record of Determinations Medical Practitioners Tribunal. Date: 07/11/2017. Medical practitioner s name: Dr Umashankar VELLAIAH DURAI

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1 PUBLIC RECORD Date: 07/11/2017 Medical practitioner s name: Dr Umashankar VELLAIAH DURAI GMC reference number: Primary medical qualification: Type of case New - Non-compliance with a performance assessment MB BS 1990 University of Madras Outcome on non-compliance Non-compliance found Summary of outcome Suspension for 12 months Review hearing directed Immediate order imposed Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Mr Graham White Mrs Angela Buckley Dr Christopher Chandler Tribunal Clerk: Ms Angela Carney Attendance and representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Not present and not represented N/A Ms Emma Gilsenan, Counsel Attendance of press / public The hearing was all in public. 1

2 Non-compliance Allegation On 16 November 2016 the GMC, via the Employment Liaison Adviser, was notified by the Medical Director of South Tees Hospitals NHS Foundation Trust ( the Trust ), of concerns about your clinical competence. The concerns included, but were not limited to, your: poor leadership skills; timekeeping; communication skills; lack of insight in to your capability issues; failure to accept/access support. On 15 March 2017, you were directed under Rule 7(3) and Schedule 1 of the Fitness to Practise Rules 2004 to undergo a performance assessment. You were asked to provide your completed performance assessment portfolio by 11 April On 13 April 2017, you were sent a reminder by that you were required to complete and return your performance assessment portfolio. You were given a revised deadline of 27 April On 25 May 2017 you advised the GMC by that you had no intentions to argue further in this case and that you had no plans to return back to the UK to work as a doctor. On 19 September 2017, the GMC wrote to you to inform you that your failure to comply with the direction to undergo a performance assessment had been referred to a. You have failed to comply in full with a performance assessment as directed by the GMC. There is no good reason for your failure to comply with the GMC's request. DETERMINATION ON NON-COMPLIANCE -7 NOVEMBER 2017 Background 1. Dr Vellaiah Durai was referred to the GMC by Mr A, Medical Director, Specialist Care, South Tees Hospitals NHS Foundation Trust (The Trust) on 6 October Dr Vellaiah Durai was employed by the Trust in February 2016 on a fixed 12 month contract, as a locum anaesthetist. 2. At the time of appointment Dr Vellaiah Durai indicated that he was in the process of applying for entry on to the Specialist Register via a certificate of eligibility for specialist registration (CESR). Shortly after taking up the post concerns 2

3 were raised about Dr Vallaiah Durai s conduct including, late starts to shifts, difficulty in contacting him during on call periods, and inappropriate use of mobile phone for personal calls in the workplace, including in the operating theatre environment. Dr Vallaiah Durai was advised about these concerns, he showed insight and these were largely addressed. 3. Further concerns were raised about Dr Vellaiah Durai s clinical practice including his communication skills, leadership and situational awareness. Following a meeting in July 2016 the Trust arranged for him Durai to be supervised and removed from the on-call rota. It introduced a remediation plan, including direct mentoring. 4. At a Review meeting on 28 September 2016 the Trust found that Dr Vellaiah Durai had made inadequate improvement in performance and there were significant concerns about leadership, communication, and clinical capability. Dr Vellaiah Durai s supervised practice ended and he was asked to refrain from all clinical work. The Trust also advised him to maintain CPD and work in library/attend relevant departmental and educational meetings. 5. The Trust reported that there were a number of clinical incidents including a cardiac procedure in which Dr Vellaiah Durai failed to respond to: a deteriorating patient and in which his junior colleagues deemed it necessary to call for assistance; a patient receiving emergency care who went into anaphylaxis which Dr Vellaiah Durai did not know how to respond to; examples of him cannulating patients without gloves; a patient almost given skin preparation that they had declared an allergy to. 6. These concerns were formally investigated by the Trust although no formal Maintaining High Professional Standards (MHPS) process was carried out. Statements were taken and shared with Dr Vellaiah Durai before a remediation plan was put in place. Dr Vellaiah Durai demonstrated no insight into the clinical concerns and has failed to take up assistance offered by the Trust. 7. Dr Vellaiah Durai booked a period of leave and was due to return on 24 October 2016, but did not return. The Trust tried to contact Dr Vellaiah but he failed to return any phone calls or respond to letters. 8. Dr Vellaiah was referred to an Interim Orders Tribunal (IOT) on 19 December He attended the start of the hearing but left before its conclusion. The IOT imposed an interim order of suspension for a period of 18 months. 9. On 15 March 2017 the GMC wrote to Dr Vellaiah Durai requesting that he undergo a GMC Performance Assessment, due to repeated clinical mistakes, a lack of familiarity with basic clinical/administrative procedures and guidelines and a failure to work effectively and/or collaboratively with colleagues. 10. On 25 May 2017 Dr Vellaiah Durai ed the GMC stating he disagreed with the concerns raised regarding his clinical practice, he had withdrawn his services to 3

4 the NHS on 2 January 2017 and left the United Kingdom. He further stated that he has no plans to return to the UK to work as a doctor. 11. On 19 September 2017 the GMC referred Dr Vellaiah Durai to the Medical Practitioners Tribunal Service for a non-compliance hearing and notified him accordingly. 12. On the same day Dr Vellaiah Durai ed the GMC stating that he would be applying for Voluntary erasure, but that due to personal circumstances it would be a month before he initiated the process. In a further dated 1 October 2017 Dr Vellaiah Durai again confirmed his intention to apply for Voluntary Erasure. To date, no Voluntary erasure application has been received by the GMC. Today s proceedings 13. The Tribunal has considered the non-compliance matter referred to it, as set out in the GMC s Notice of Non-compliance sent to Dr Vellaiah Durai on 12 August 2017, as follows: On 16 November 2016 the GMC, via the Employment Liaison Adviser, was notified by the Medical Director of South Tees Hospitals NHS Foundation Trust ( the Trust ), of concerns about your clinical competence. The concerns included, but were not limited to, your: poor leadership skills; timekeeping; communication skills; lack of insight in to the doctor s capability issues; failure to accept/access support. On 15 March 2017, you were directed under Rule 7(3) and Schedule 1 of the Fitness to Practise Rules 2004 to undergo a performance assessment. You were asked to provide your completed performance assessment portfolio by 11 April On 13 April 2017, you were sent a reminder by that you were required to complete and return your performance assessment portfolio. You were given a revised deadline of 27 April On 25 May 2017 you advised the GMC by that you had no intentions to argue further in this case and that you had no plans to return back to the UK to work as a doctor. 4

5 Evidence On 19 September 2017, the GMC wrote to you to inform you that your failure to comply with the direction to undergo a performance assessment had been referred to a. You have failed to comply in full with a performance assessment as directed by the GMC. There is no good reason for your failure to comply with the GMC's request. 14. In reaching a decision on the matter of non-compliance, the Tribunal has given careful consideration to the documentary evidence adduced by the GMC in this case, including: The referral from the Trust (with supporting documents), dated 6 October 2016, The letter from the GMC, dated 15 March 2017, to Dr Vellaiah Durai directing him to complete an assessment of his professional performance, Various correspondence and s between Dr Vellaiah Durai and the GMC 15. The Tribunal has noted that Dr Vellaiah Durai has not provided any documents to the Tribunal. Submissions 16. The Tribunal has taken account of the submissions made by Ms Gilsenan, Counsel, on behalf of the GMC. There Tribunal was provided with no submissions from Dr Vellaiah Durai. 17. Ms Gilsenan referred the Tribunal to the three pronged test in relation to noncompliance. Firstly she stated that the Tribunal must decide whether the GMC s direction to request Dr Vellaiah Durai to undergo a Performance Assessment was reasonable. She reminded the Tribunal of the wide ranging concerns regarding Dr Vellaiah Durai s clinical performance. She stated that his clinical practice was supervised but no improvement was noted and that he was asked to refrain from clinical practice altogether. She stated that with those parameters in mind the request to undergo a Performance Assessment was proportionate. 18. She submitted that Dr Vellaiah Durai s failure to undertake a Performance Assessment impaired the GMC s ability to investigate the fitness to practise concerns, as indicated in the evidence provided by the Trust. The clinical and performance concerns referred to were numerous and wide ranging. She said that the only way the GMC can discharge its duty to objectively assess his clinical practice is by way of 5

6 a Performance Assessment. She reminded the Tribunal of the GMC s overarching objective which is to protect patients. 19. She reminded the Tribunal that Dr Vellaiah Durai has consistently failed to return his Work Detail Form (WDF) which is relevant to the issue of engagement. She referred the Tribunal to paragraph 23 of the guidance Good Medical Practice (2013), which states: 23. To help keep patients safe you must: a. contribute to confidential inquiries b. contribute to adverse event recognition c. report adverse incidents involving medical devices that put or have the potential to put the safety of a patient, or another person, at risk d. report suspected adverse drug reactions e. respond to requests from organisations monitoring public health. When providing information for these purposes you should still respect patients confidentiality. 20. She referred the GMC to the extensive correspondence sent by the GMC to Dr Vellaiah Durai. She submitted that there is sufficient information to prove that Dr Vellaiah Durai has not complied with reasonable requests to provide his WDF or undergo a Performance Assessment. She submitted that Dr Vellaiah Durai has chosen to remain in India and that he has failed to comply with a reasonable direction without good reason. The Tribunal s approach 21. The Tribunal is aware that the burden of proof rests on the GMC and that it is for the GMC to prove non-compliance. The Tribunal is also aware that the standard of proof is that applicable to civil proceedings, which is, the balance of probabilities. 22. The Tribunal reminded itself that the test is that the request to undergo a Performance Assessment must have been reasonable at the time it was made. 23. The Tribunal has considered the performance concerns raised and the detailed reports provided by the Trust. It noted that the concerns were identified by colleagues and senior staff and related to both Dr Vellaiah Durai s clinical practice and conduct. It also noted that, remedial measures were put in place but Dr Vellaiah Durai s performance failed to improve and he did not respond positively to these. 24. In all the circumstances, the Tribunal considers that the request for Dr Vellaiah Durai to undergo a GMC Performance Assessment was reasonable at the 6

7 time the request was made. The request was made in accordance with the GMC s powers as laid out in the Medical Act 1983 (as amended) and in the General Medical Council (Fitness to Practise) Rules Order of Council 2004 (the Rules). The Tribunal considers that the request was proportionate as the concerns regarding his clinical practice were sufficiently serious to justify the GMC directing a Performance Assessment. 25. The Tribunal took account of Dr Vellaiah Durai s s dated 25 May 2017 and 19 September 2017, in which he stated: I am in complete disagreement about the charges or concerns raised by the Cardiothoracic anaesthesia department in James Cook University Hospital. I have enough evidences to justify that there wasn't any significant pitfalls in my capability to perform as a consultant in the speciality. In October 2017, I decided to withdraw my services to the NHS and served a notice to the hospital authorities and left UK on 02/01/2017. I have no intentions to argue further in this case and have no plans to return back to UK to work as a doctor. Throughout my career in UK from my PLAB days commencing in Dec 1997 to October 2006 when I completed my specialist training, there were no concerns raised about my professional capabilities or conduct. I wish to express my sincere thanks to the GMC, for all the support and guidance offered in the past. As I have mentioned in my earlier mail, I have no intentions to practice medicine in the United Kingdom. As suggested by You, I am about to apply for a voluntary erasure from the register. Due to personal reasons, it will be a month before I initiate the process. I am not trying to avoid the inquiry or being non compliant. I have enough evidences to prove my professional competency. But still would like to get away from these procedures and concentrate on my profession. I would kindly request you, to consider my request for voluntary erasure from the register and guide me through the process. 26. The Tribunal noted that Dr Vellaiah Durai disagrees with the concerns raised. Nevertheless the Tribunal considers that a Performance Assessment would have been an objective and proportionate way of assessing his performance and would assist the GMC in further investigating matters. 27. The Tribunal is satisfied that Dr Vellaiah Durai received appropriate reminders from the GMC regarding its direction that he undergo a Performance Assessment. It is has had regard to Dr Vellaiah Durai correspondence with the GMC in which he stated that he had no intention to practice medicine in the United Kingdom and he intended to apply for Voluntary Erasure. In the circumstances, the Tribunal has determined that Dr Vellaiah Durai has explicitly refused to comply with the GMC s direction. 7

8 28. Whilst the Tribunal has noted that Dr Vellaiah Durai stated he has no intention of returning to the UK to practice and that he intends to apply for Voluntary Erasure, he has not yet done so. The Tribunal is not satisfied that this amounts to a good reason for his failure to complete the Performance Assessment. The Tribunal is content that the correct process has been followed by the GMC. It considers that it is entirely appropriate for the Registrar to direct that Dr Vellaiah Durai undergoes a Performance Assessment. 29. The Tribunal has therefore determined that Dr Vellaiah Durai s failure to comply was not unavoidable or otherwise excusable. Furthermore, it considers that his refusal to undertake the Performance Assessment, at this time, significantly impacts upon the GMC s investigation and its overarching objective, namely 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 the medical profession. The Tribunal considers that a Performance Assessment would have provided an unbiased and independent assessment of Dr Vallaiah Durai s practice. 30. In the circumstances the Tribunal has determined that non-compliance has been found. DETERMINATION ON SANCTION - 7 November Having determined that there is non-compliance by reason of Dr Vellaiah Durai s failure to submit to a performance assessment in accordance with Schedule 1 of the Rules the Tribunal has considered whether a sanction should be imposed. 2. The Tribunal has considered the submissions made by Ms Gilsenan, Counsel, on behalf of the GMC. The Tribunal received no written submissions from Dr Vellaiah Durai. 3. Ms Gilsenan referred the Tribunal to the Non-Compliance Sanctions Guidance (2016) and to its overarching objective, which includes: a. protecting, promoting and maintaining the health, safety and well-being of the public, b. maintaining public confidence in the profession c. promoting and maintaining proper professional standards and conduct for the members of the profession. 31. Ms Gilsenan submitted that the Tribunal may not be able to find any mitigating factors in this case. Further, if the Tribunal found any mitigating factors it may be less minded to take those factors into consideration in relation to patient safety. She stated that there were aggravating factors in this case, in that Dr 8

9 Vellaiah Durai refused to undergo a Performance Assessment which demonstrates a lack of insight. He also showed a lack of engagement with earlier proceedings. 5. She submitted that taking no action would not be appropriate in this case. She submitted that conditions are unlikely to be appropriate where a doctor has failed to comply. Ms Gilsenan submitted that the appropriate and necessary sanction in this case is one of suspension, for a period of 12 months.. The Tribunal s Approach 6. In reaching its decision, the Tribunal has taken account of the Non- Compliance Sanctions Guidance (2016). It has borne in mind that the purpose of the sanctions is not to be punitive, but to protect patients and the wider public interest, although they may have a punitive effect. 7. Throughout its deliberations, the Tribunal has applied the principle of proportionality, balancing Dr Vellaiah Durai s interests with the public interest. The Tribunal bore in mind the overarching objectives. No Action 8. The Tribunal first considered whether to conclude Dr Vellaiah Durai s case and take no action. It notes that there are no mitigating factors or exceptional circumstances in this case and significant and wide ranging concerns have been raised in relation to Dr Vellaiah Durai s clinical practice. In the circumstances the Tribunal has determined that it would not be appropriate to conclude this case with no action. Conditions 32. The Tribunal next considered whether it would be appropriate to impose a period of conditions on Dr Vellaiah Durai s registration. It has borne in mind that any conditions must be appropriate, proportionate, workable and measurable. 10. The Tribunal has noted the wide ranging concerns regarding Dr Vellaiah Durai s clinical practice. It has also noted that he has failed to comply with the directive from the GMC to undergo a Performance Assessment. The Tribunal also noted Dr Vellaiah Durai s inactivity in relation to his application for Voluntary Erasure. 11. The Tribunal is of the opinion that a period of conditional registration would not adequately reflect Dr Vellaiah Durai s non-compliance, nor could conditions be devised that would protect the public interest and maintain public confidence in the medical profession. Further, given his failure to comply with the Performance Assessment, the Tribunal cannot be satisfied that Dr Vellaiah Durai would comply 9

10 with conditional registration. The Tribunal has, therefore, determined that it would not be sufficient to direct the imposition of conditions on Dr Vellaiah Durai s registration. It follows then that Dr Vallaiah Durai s registration must be suspended. 12. The Tribunal determined to suspend Dr Vallaiah Durai s registration for a period of 12 months. The Tribunal considers that the period of 12 months will give Dr Vellaiah Durai the opportunity to comply with the directive of the GMC and undergo a Performance Assessment. 13. A Tribunal will review Dr Vellaiah Durai s case at a hearing to be held before the end of the period of suspension. It will then consider whether it should take any further action in relation to his registration. The Tribunal reviewing Dr Vallaiah Durai s case will wish to be assured that he has complied with the GMC s directive to undergo a Performance Assessment. Dr Vellaiah Durai will be informed of the date of that hearing. The Tribunal reviewing Dr Vellaiah Durai s case would be assisted by receiving the following: a copy of any Performance Assessment Report evidence that he has kept his knowledge and skills up to date 14. Subject to any further consideration the effect of this direction is that, unless Dr Vellaiah Durai exercises his right of appeal, this decision will take effect 28 days from when written notice of this determination is deemed to have been served upon him. A note explaining Dr Vellaiah Durai s right of appeal will be provided to him. DETERMINATION ON IMMEDIATE ORDER - 7 November Having determined to impose an order of suspension for a period of 12 months, the Tribunal has considered, in accordance with Rule 17(2)(o) of the Rules, whether Dr Vellaiah Durai s registration should be subject to an immediate order. Submissions 2. On behalf of the GMC, Ms Gilsenan submitted that given the concerns regarding Dr Vellaiah Durai s clinical practice an immediate order is necessary to protect the public. The Tribunal s Determination 3. The Tribunal has determined that, given the concerns regarding Dr Vellaiah Durai s clinical practice, it is necessary, for the protection of members of the public and is in the public interest, to impose an immediate order of suspension on his registration. 4. This means that Dr Vellaiah Durai s registration will be suspended from when notification is deemed to have been served. The substantive direction, as already 10

11 announced, will take effect 28 days from when written notice of this determination has been served upon Dr Vellaiah Durai, unless an appeal is made in the interim. If an appeal is made, the immediate order will remain in force until the appeal has concluded. 5. The interim order currently imposed on Dr Vellaiah Durai s registration will be revoked when the immediate order takes effect. 6. That concludes this case. Confirmed Date 07 November 2017 Mr Graham White, Chair 11

12 ANNEX A Determination on Service 7 November Dr Vellaiah Durai is neither present nor represented at these proceedings. The Tribunal has seen the GMC dated 8 October 2017 containing the Rule 34(9) letter, details of non-compliance and the draft hearing bundle. The Tribunal noted a copy of the GMC and attachments was sent again on 19 October The Tribunal has noted the from Dr Vellaiah Durai on13 December 2016 requesting that any correspondence be sent to his address. It has also noted the delivery receipt. The Tribunal has noted the MPTS Notice of Hearing letter dated 9 October 2017 sent to Dr Vellaiah Durai s registered address, this was also sent to Dr Vellaiah Durai s address. The Notice of hearing letter was also sent to Dr Vellaiah Durai via on 9 October been properly served in accordance with Rule 40(2)(b) of the GMC (Fitness to Practise) Rules Determination on Proceeding in Absence 3. The Tribunal has noted that in Dr Vellaiah Durai s dated 25 May 2017, in which he stated that I have no intentions to argue further in this case and have no plans to return back to UK. 4. The Tribunal is satisfied that Dr Vellaiah Durai is aware of the hearing. It noted that Dr Vellaiah Durai did not request a postponement of the hearing in his dated 25 May 2017 and has decided not to attend. The Tribunal has borne in mind that, were it to adjourn today s hearing, there is no indication that Dr Vellaiah Durai would be more likely to attend a future hearing. The Tribunal has exercised upmost care and caution in determining whether to proceed in Dr Vellaiah Durai s absence. Given that Dr Vellaiah Durai is aware of the hearing and has chosen to not attend, the Tribunal has determined that the public interest would be best served by proceeding with the hearing in his absence today, in accordance with Rule 31 of the Rules, and that no injustice would arise to any party through its doing so. 2