Medical Practitioner’s name · a career in OMFS which required dual qualification in medicine and dentistry. He commenced a three-year dental training programme at King’s College

Record of Determinations –

Medical Practitioners Tribunal

MPT: Dr LEUNG 1

PUBLIC RECORD Dates: 11/11/2019 - 20/01/2020

Medical Practitioner’s name: Dr Ching LEUNG aka Billy LEUNG

GMC reference number: 7138489

Primary medical qualification: MB BS 2011 University of London

Type of case Outcome on impairment New - Misconduct Impaired

Summary of outcome

Conditions, 18 months. Review hearing directed

Tribunal:

Legally Qualified Chair Mr Paul Moulder

Lay Tribunal Member: Ms Miriam Karp

Medical Tribunal Member: Dr Ronan Brennan

Tribunal Clerk: Mr Sewa Singh Ms Emma Saunders (14 – 15 November 2019)

Attendance and Representation:

Medical Practitioner: Present and represented

Medical Practitioner’s Representative: Mr Simon Gurney, Counsel, instructed by Stephenson’s Solicitors



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GMC Representative: Mr Tim Grey, Counsel (11 - 20 November 2019 and 20 January 2020) Mr Christopher Hamlet (13 December 2019)

Attendance of Press / Public In accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 the hearing was held in public. Overarching Objective Throughout the decision making process the tribunal has borne in mind the statutory overarching objective as set out in s1 Medical Act 1983 (the 1983 Act) to protect, promote and maintain the health, safety and well-being of the public, to promote and maintain public confidence in the medical profession, and to promote and maintain proper professional standards and conduct for members of that profession. Determination on Facts - 19/11/2019 Background 1. Dr Leung qualified in 2011 at the Barts and The London School of Medicine and Dentistry. He went on to complete his Foundation Year 1 and Year 2 training at North East Thames Deanery. He then took a break for one year to complete his Master’s degree in Plastic Surgery. Dr Leung commenced his core surgical training at Thames Valley (Oxford) Deanery where he undertook CT1 in Plastic Surgery and Ear Nose and Throat Surgery, followed by CT2 in Oral and Maxillofacial Surgery (OMFS). He obtained membership of the Royal College of Surgeons (RCS) and Diploma of Head and Neck Surgery (DOHNS) during this time. After completing his core training, Dr Leung pursued a career in OMFS which required dual qualification in medicine and dentistry. He commenced a three-year dental training programme at King’s College London (KCL) in August 2016, while at the same time, working as a Clinical Fellow at the King’s College Hospital NHS Foundation Trust (KCH), London. He graduated from the dental training programme in July 2019. 2. The allegations that have led to Dr Leung’s hearing fall into three areas whilst he was working as a Senior House Officer (SHO) at KCH. The first relates to a breach of Trust policy and protocol in that Dr Leung allowed two friends of his to stay in the consultant’s room of the maxillofacial department overnight and he organised work placements for two students contrary to hospital policy. 3. The second relates to two separate incidents during a night shift in December 2016 in which Dr Leung allegedly misrepresented facts relating to two patients to his



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on-call Registrar, and in doing so, lied about his knowledge of the facts relating to the two patients in question (Patient C and Patient D). 4. The third relates to Dr Leung’s assessment and care, or lack of care, in relation to Patient E on 19 July 2017. Patient E attended the Accident and Emergency (A&E) department of KCH on 18 July 2017, presenting with bleeding from the sockets of a number of her anterior teeth which had been removed by her dentist. Dr Leung treated the sockets to stop the bleeding. Patient E was discharged home at 01:00 on 19 July 2019. The bleeding later resumed to the point that Patient E vomited blood. Patient E re-presented at KCH 08:35 on 19 July 2017 but suffered a cardiac arrest. She later died. 5. These matters were referred to the GMC by the Trust following an internal investigation. The Outcome of Applications Made during the Facts Stage 6. The Tribunal granted Dr Leung’s application, made pursuant to Rule 17(2)(g) of the GMC (Fitness to Practise Rules) 2004 as amended (‘the Rules’), that there was no case to answer in respect of paragraphs 7(a)(ii) and 7(e) of the Allegation. The Tribunal’s full decision on the application is included at Annex A. 7. The Tribunal granted Dr Leung’s application, made pursuant to Rule 34(13) of the Rules, for a witness, Mr K, to give evidence via videolink. The Tribunal concluded that this was practical and could be done without injustice to either party. The Tribunal noted that the Case Manager had already given permission for the evidence of Dr I and Dr L, to be given via telephone. The Allegation and the Doctor’s Response 8. The Allegation made against Dr Leung is as follows:

Mentorship placements 1. On a date in October 2016, you arranged placements for two students from Hong Kong to attend King’s College Hospital (‘the Hospital’), which was contrary to Hospital policy in that you organised the placements through Dr A’s secretary. Admitted and Found Proved

Concerns arising out of clinical work

2. On a date in December 2016, you advised Dr B:

a. that you had seen Patient C’s x-ray; To be determined



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b. of the complexity of Patient C’s fracture,

Admitted and Found Proved

3. Your comments as set out at paragraph 2a - b above:

a. were untrue in that you had not seen Patient C’s x-ray; To be determined

b. you knew to be untrue. To be determined

4. On a date in December 2016, you advised Dr B that Patient D’s observations were normal. Admitted and Found Proved

5. Your comments as set out at paragraph 4 above:

a. were untrue in that you had not reviewed Patient D’s observations; To be determined

b. you knew to be untrue. To be determined

6. Your conduct at paragraph:

a. 2a - b was dishonest by reason of paragraph 3a - b; To be determined

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

7. On 19 July 2017 you consulted with Patient E and you failed to:

a. obtain an adequate medical history, in that you did not obtain details of Patient E’s:

i. international normalised ratio (‘INR’);


ii. warfarin therapy; Deleted after a successful Rule 17(2)(g) application

b. adequately assess Patient E’s INR status, either:



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i. yourself; or Admitted and Found Proved ii. by asking the Accident and Emergency staff to do so;

Admitted and Found Proved c. consider that the reason for Patient E’s bleeding was that Patient E’s INR was not properly controlled; To be determined

d. seek the advice of a senior colleague regarding the management of Patient E; Admitted and Found Proved

e. record having undertaken the actions outlined at paragraph 7a. Deleted after a successful Rule 17(2)(g) application

Patient Confidentiality

8. Between 27 and 29 September 2017, you allowed Dr F and Ms G, two non-members of hospital staff, to stay overnight in the consultants’ room at the Hospital, where sensitive patient data was stored. Admitted and Found Proved

Applications made during the Facts stage 9. There were no applications made during the facts stage. The Admitted Facts 10. Through his counsel, Mr Simon Gurney, Dr Leung admitted paragraphs 1, 2(b), 4, 7(a)(i), 7(b)(i–ii), 7(d) and 8 of the Allegation, as set out above, in accordance with Rule 17(2)(d) of the Rules. In accordance with Rule 17(2)(e) of the Rules, the Tribunal announced these paragraphs as admitted and found proved. The Facts to be Determined 11. The Tribunal was required to determine whether the facts alleged, as set out in the Allegation, other than as admitted, occurred; and, if so, whether Dr Leung’s fitness to practise is impaired by reason of misconduct. Factual Evidence 12. On behalf of the GMC, the Tribunal received:



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(i) evidence in the form of witness statements and exhibits:

• Dr A; Consultant Oral and Maxillofacial Surgeon at KCH, dated 26

December 2018; • Dr N; Consultant Oral and Maxillofacial Surgeon at KCH, dated 29 July

2019; • Ms M; Medical Secretary at KCH, dated 30 July 2019; • Dr S; Corporate Medical Director and Responsible Officer, dated 7

August 2019; • Dr R; Consultant Oral and Maxillofacial Surgeon at KCH, dated 7

August 2019; • Dr T, Clinical Director and Lead for Maternity at KCH, dated 29 August

2019.

(ii) oral evidence from Dr B (Dr B), Consultant Head and Neck Surgeon at KCH, together with her written statement, dated 19 June 2019.

(iii) two reports from the GMC expert, Mr H, Consultant Oral and

Maxillofacial Surgeon, dated 10 July 2018 and 23 August 2019, respectively. Mr H also gave oral evidence.

13. The Tribunal also received a defence bundle which included but was not limited to:

• Dr Leung’s witness statement, dated 18 October 2019; • His Curriculum Vitae (CV) - undated; • Certificates for courses and training attended and/or completed, and

courses delivered by Dr Leung; • Testimonials and character references from Dr Leung’s colleagues

attesting to his good character and clinical work. 14. Dr Leung also gave oral evidence. 15. The Tribunal received oral evidence from the following on behalf of Dr Leung:

• Dr I, via telephone; • Mr J, in person;

• Mr K, via video link; • Dr L, via telephone.

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



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Leung 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 legally qualified Chair referred the Tribunal to the case of Ivey v Genting Casinos (UK) Limited [2017] UKSC 67, in which Lord Hughes set out the correct test for dishonesty, which is as follows:

‘When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When 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 has done is, by those standards, dishonest.’

The Tribunal’s Findings 18. The Tribunal considered each disputed paragraph of the Allegation separately and has evaluated the evidence to make the findings on the facts. Paragraph 2(a) On a date in December 2016, you advised Dr B: a. that you had seen Patient C’s x-ray; 19. The Tribunal had regard to Dr B’s witness statement dated 19 June 2019 in which she describes the events relating to Patient C. In paragraph 4 she stated: ‘4. I was checking every 15 minutes or so on the system to see if it had been uploaded. I was discussing this patient with Dr Leung and he advised me that the 'fracture looks straightforward'. I was surprised when he said this, as I had been waiting for the x-ray to come onto the system before I could go home but had not seen it yet. I asked him had he seen it and he said yes. I would have asked him directly about the fracture pattern although I do not recall this specifically, but I do recall him stating that the fracture was not complex.’ 20. In an email to Dr A at the KCH, dated 29 December 2016, Dr B stated



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‘..I spoke to him for a short time during which he assured me that he was experienced enough to manage (I.e. clerk and admit) a mandible fracture that was expected ‘fracture looks straightforward’. I said I would wait until I could see the x-ray which was not on our system yet, I couldn’t understand how he had seen the x-ray himself and he could not describe the fracture pattern. Later as I waited he admitted that he had not seen the x-ray. …’

21. During her oral evidence to the Tribunal, Dr B described what the general practice is when a patient is referred from another hospital. She said that usually referrals are received by telephone and x-ray images are usually received electronically via an internal IT system. Dr B in her oral evidence said that Dr Leung had told her that it was a straightforward fracture. She assumed that Dr Leung must have seen the x-ray, as in her mind this was the only way he could have assessed the complexity of the fracture. She described doubting herself and feeling that she had missed the x-ray on the IT system. When it was put to Dr B that Dr Leung had not said that he had seen the x-ray, she answered that she did not think he had used those exact words, it was the impression he was giving. 22. Dr Leung in his witness statement asserted that he had spoken to a doctor from the referring hospital who had informed him of the complexity of the fracture. Dr Leung told the Tribunal that when Dr B’s email (which set out her concerns about him) was placed before him at the investigation interview, some fourteen months had elapsed since the events regarding Patient C. He said that he could not fully recall the events and he had not been aware that there were any concerns about him because nothing had ever been mentioned to him up to that point. 23. The Tribunal noted that in her evidence, Dr B’s position varied from asserting that Dr Leung had said, in terms, that he had seen the x-ray. It also noted that Dr Leung had not told Dr B that he had spoken with a doctor from the referring hospital. The Tribunal concluded that Dr B had assumed from Dr Leung telling her about the x-ray that he had seen it. 24. In the light of the evidence provided, the Tribunal did not find it proved that Dr Leung advised Dr B that he had seen Patient C’s x-ray. It therefore found paragraph 2a of the Allegation not proved. Paragraphs 3(a) and (b) Your comments as set out at paragraph 2a - b above: a. were untrue in that you had not seen Patient C’s x-ray; b. you knew to be untrue.



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25. By virtue of its finding in relation to paragraph 2(a), the Tribunal found paragraphs 3(a) and 3(b) not proved, so far as they related to paragraph 2(b). 26. The Tribunal went on to consider this paragraph in relation to the admitted paragraph 2(b). 27. The Tribunal heard evidence from Dr B as to the usual practice at KCH in relation to the receiving of x-rays. It also took into account that during her oral evidence, Dr B conceded that although rare, it is possible that Dr Leung had a telephone conversation with the clinician at the other hospital. 28. In his witness statement of 18 October 2019 and during his oral evidence to the Tribunal, Dr Leung maintained that he had had a telephone conversation with the other clinician from the referring hospital who described the fracture and the x-ray. Dr Leung told the Tribunal that this is how he was aware of the complexity of Patient C’s fracture. 29. The Tribunal noted that in the notes of the investigation interview on 17 January 2018, there was no mention that Dr Leung received a telephone call from the clinician at the other hospital. However, the Tribunal was of the view that Dr Leung had had very little time to consider the email which had been placed before him during the course of the interview and that this interview was being conducted some fourteen months after the events with nothing being raised with Dr Leung prior to the interview. The Tribunal noted that in the Trust interview Dr Leung stated ‘From what I remember, I presented a case of mandible fracture to [Dr B], which was referred to me from another hospital’ which, since the Tribunal had been told by Dr B that all referrals were made by telephone, carried an implication that Dr Leung had had a telephone conversation with the clinician from the referring hospital. 30. The Tribunal considered the likelihood that Dr Leung did fabricate the information about the complexity of the fracture. It considered that this was inherently improbable as it risked discovery and embarrassment for Dr Leung. The Tribunal also noted that the information concerning Patient C’s fracture was subsequently proved to be correct. The Tribunal had also received a considerable amount of evidence as to Dr Leung’s general good character which it accepted. The Tribunal considered that it was unlikely that Dr Leung would have taken the risk of making up information about the complexity about Patient C’s fracture. 31. The Tribunal concluded, on the balance of probabilities, that Dr Leung had a telephone conversation with the clinician who referred Patient C. It therefore determined that it had not been proved that Dr Leung had advised Dr B about the complexity of Patient C’s fracture knowing it to be an untrue statement. 32. It therefore found paragraphs 3(a) and (b) in relation to paragraph 2(b) of the Allegation not proved.



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Paragraphs 5(a) and (b) in relation to Paragraph 4 Your comments as set out at paragraph 4 above: a. were untrue in that you had not reviewed Patient D’s observations; b. you knew to be untrue. 33. The Tribunal had regard to paragraphs 7 and 8 of Dr B’s witness statement, dated 19 June 2019, in which she stated: 7. In the middle of the night, possibly around 2:00am, I received a call from Dr Leung. He was asking for my advice regarding a patient and whether they should be admitted to Hospital for treatment. Dr Leung advised it was difficult to take blood from this patient as they used to be an intravenous drug user CIVDU'). I asked Dr Leung what the patients observations were. To confirm, observations include basic vital signs; such as oxygen saturation, temperature, heart rate and respiratory rate. Dr Leung advised that they were normal. I asked him what the numbers were for the observations and he said they were Tine' but I pressed him on this and asked again for the specific numbers. 8. Unable to answer me, Dr Leung left the phone, I assume to get the chart, and returned listing the patients' observations. Despite advising that the observations were normal, the temperature was 34 degrees. Normal temperature is 37 degrees so this was an abnormally low reading. Observations are very important as they are a good indication as to whether a patient does require admission and what treatment might be required, as was the issue in this case. A temperature reading of 34 degrees is definitely not something I would consider normal and therefore I had serious concerns as to whether Dr Leung had even seen the observations before telling me he had.’ 34. The Tribunal had regard to Dr Leung’s witness statement, dated 18 October 2019, in which he stated at paragraph 60: ‘The second incident related to a patient that I reviewed with a dental infection and facial swelling. I reviewed the patient in the Accident & Emergency (‘A&E’) Minors Department. I recall that myself and the nursing staff were having difficulties in obtaining bloods from the patient as he was an intravenous drug user.’ 35. In paragraph 62 he stated:



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‘62. From what I can recall, the nursing staff informed me that the patient’s observations were normal prior to examining the patient. I did not prompt the nurse for exact numbers of the observations and I did not review the charts myself when I contacted (over the phone) Dr B after I examined the patient.’ 36. The Tribunal noted that in the Trust interview, Dr Leung had said in relation to Patient D’s observations ‘the observations were not done by the nurses at that point when I was informing [Dr B] of this patient’. The Tribunal noted this had to be incorrect as at the time he had obtained the actual observations at Dr B’s request. The Tribunal accepted that Dr Leung’s error in the interview was due to the circumstances of the interview some fourteen months after the events and without prior notice of the complaint. The Tribunal noted, with some concern, the contradiction in the answers given by Dr Leung at the Trust interview and those in his written statement prepared for this hearing. 37. During his oral evidence, Dr Leung said that he advised Dr B that Patient D’s observations were normal based on what he had been told by the nursing staff who had treated Patient D. The Tribunal noted Dr Leung’s evidence that his normal practice is to ask the nursing staff for these observations as it is they who routinely take such observations. The Tribunal was of the view that if he had indeed asked the nursing staff about Patient D’s observations, this meant that Dr Leung had reviewed Patient D’s observations. The issue was whether it accepted his evidence that he had asked the nursing staff for Patient D’s observations. 38. The Tribunal found that Dr Leung struggled with recollecting events which had occurred some time ago. The Tribunal noted that he referred, on occasions, to ‘what would’ have been his practice rather than what he recalled he had actually done. 39. The Tribunal reminded itself of the considerable evidence as to Dr Leung’s good character and also considered that it was unlikely that a doctor would fabricate a patient’s observations when the information was readily available from the patient’s clinical notes or from the nursing staff. 40. In all the circumstances, the Tribunal concluded that it was not satisfied that Dr Leung had informed Dr B about Patient D’s observations without being in possession of the information from the nursing staff. It therefore determined, on the balance of probabilities, Dr Leung did review Patient D’s observations by asking the nursing staff, although the information proved to be incorrect. However, the Tribunal determined that Dr Leung’s comments to Dr B about Patient D’s observations being fine were not untrue.



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41. The Tribunal found paragraph 5(a) in relation to paragraph 4 of the Allegation not proved. As a consequence, the Tribunal also found paragraph 5(b) not proved. Paragraphs 6(a) and (b) Your conduct at paragraph: a. 2a - b was dishonest by reason of paragraph 3a - b; b. 4 was dishonest by reason of paragraph 5a -b. In relation to paragraphs 6(a) and 6(b) which alleged the doctor had been dishonest, by making statements which had been untrue and known by him to be untrue, the Tribunal considered the test of dishonesty in Ivey. In relation to 6(a) it had not found that the doctor had made the statement that he had seen the x-ray and it had found it likely that he had passed information that he had been told. It accepted therefore that he believed the information he passed on to be true. This was not dishonest. In relation to 6(b) it had not been satisfied that the doctor had made statements without having been informed by the nurses, that observations were ‘normal’. It therefore followed that, as regards the doctors state of mind the statement was not ‘untrue’ (notwithstanding it later proved to be incorrect) and he did not know it to be untrue. The Tribunal concluded that this was not dishonest. 42. The Tribunal found paragraphs 6(a) and (b) of the Allegation not proved. Paragraph 7(c) On 19 July 2017 you consulted with Patient E and you failed to: c. consider that the reason for Patient E’s bleeding was that Patient E’s INR was not properly controlled; 43. In his report, dated 10 July 2018, Mr H stated that blood tests should have been requested as this was the obvious thing to do, particularly because Patient E was taking warfarin. 44. In his witness statement, dated 18 October 2019, Dr Leung described the events relating to Patient E and the treatment plan he put in place for Patient E. He said that after Patient E had been seen by the Triage nurse, he ‘considered whether a blood test should be requested (including full blood count, clotting studies and INR), but after discussing this with the Triage nurse, decided to wait for further clinical assessment before making a final decision’. Dr Leung went on to say that at the point of Triage, Patient E appeared to be stable clinically, with ‘no symptoms of dizziness, drowsiness, shortness of breath or chest discomfort, or nausea or vomiting.’



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45. Dr Leung stated in paragraph 92 of his witness statement: ‘In considering the INR status at that point, my understanding was that an INR test would have been carried out by the dentist before the dental extraction, to ensure the INR level would be appropriate to commence extraction, as per national guidelines. The extraction was carried by a community general dental practitioner on the same day in the afternoon. As the extraction was conducted and completed, I assumed that the test result prior to the extraction must have been satisfactory. I therefore determined not to recheck INR at this point, and to wait for further review after the initial treatment I had advised.’ 46. Dr Leung stated that he did consider whether to request blood tests given Patient E was taking warfarin. Dr Leung said that it was his understanding that this level must have been acceptable in order for the extraction to have taken place. He said he did not consider Patient E’s INR may not have been tested by the dentist. Dr Leung accepted that this was a serious error on his part. 47. Although Dr Leung conceded that his reasons for failing to check Patient E’s INR were flawed, the Tribunal concluded, based on the evidence before it, that he did consider whether the reason for Patient E’s bleeding was that her INR was not properly controlled. It therefore found paragraph 7(c) of the Allegation not proved. The Tribunal’s Overall Determination on the Facts 48. The Tribunal has determined the facts as follows:

Mentorship placements 1. On a date in October 2016, you arranged placements for two students from Hong Kong to attend King’s College Hospital (‘the Hospital’), which was contrary to Hospital policy in that you organised the placements through Dr A’s secretary. Admitted and Found Proved

Concerns arising out of clinical work

2. On a date in December 2016, you advised Dr B:

a. that you had seen Patient C’s x-ray; Determined and found not proved

b. of the complexity of Patient C’s fracture,




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3. Your comments as set out at paragraph 2a - b above:

a. were untrue in that you had not seen Patient C’s x-ray; Determined and found not proved

b. you knew to be untrue. Determined and found not proved

4. On a date in December 2016, you advised Dr B that Patient D’s observations were normal. Admitted and Found Proved

5. Your comments as set out at paragraph 4 above:

a. were untrue in that you had not reviewed Patient D’s observations; Determined and found not proved

b. you knew to be untrue. Determined and found not proved

6. Your conduct at paragraph:

a. 2a - b was dishonest by reason of paragraph 3a - b; Determined and found not proved

b. 4 was dishonest by reason of paragraph 5a -b. Determined and found not proved

7. On 19 July 2017 you consulted with Patient E and you failed to:

a. obtain an adequate medical history, in that you did not obtain details of Patient E’s:

i. international normalised ratio (‘INR’); Admitted and Found Proved

ii. warfarin therapy; Deleted after a successful Rule 17(2)(g) application

b. adequately assess Patient E’s INR status, either:

i. yourself; or Admitted and Found Proved



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ii. by asking the Accident and Emergency staff to do so; Admitted and Found Proved

c. consider that the reason for Patient E’s bleeding was that Patient E’s INR was not properly controlled; Determined and found not proved

d. seek the advice of a senior colleague regarding the management of Patient E; Admitted and Found Proved

e. record having undertaken the actions outlined at paragraph 7a. Deleted after a successful Rule 17(2)(g) application

Patient Confidentiality

8. Between 27 and 29 September 2017, you allowed Dr F and Ms G, two non-members of hospital staff, to stay overnight in the consultants’ room at the Hospital, where sensitive patient data was stored. Admitted and Found Proved

And that be reason of the matters set out above your fitness to practise is impaired because of your misconduct To be determined Determination on Impairment - 13/12/2019 1. Having announced its findings on the facts, the Tribunal has now considered whether, on the basis of the facts found proved, Dr Leung’s fitness to practise is impaired by reason of misconduct. Evidence 2. Dr Leung gave further oral evidence at this stage. He expressed regret and remorse for his actions. He gave a brief summary of his career and training to date and took the Tribunal through his witness statement, dated 18 October 2019. He told the Tribunal that he has made his current and any potential employers aware of the GMC investigation, as well as any action taken against him. Dr Leung said that his General Dental Council (GDC) licence application is on hold pending the outcome of these proceedings. 3. In relation to paragraph 1 of the Allegation, Dr Leung told the Tribunal that he only wanted to help these students gain some work experience. He explained



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that when he initially sent his email to the secretary, Ms M, he copied Dr A into his email. He told the Tribunal that it was his understanding that copying Dr A into his email correspondence was sufficient to instigate her authorisation. He said he did not realise that Ms M would automatically make the arrangements for the two students to undertake the work experience. He added that he was not involved beyond his initial email to Ms M. He told the Tribunal that it was naive of him to not have inquired further about the process to be followed and that he understood the need to ensure proper processes are followed. 4. Dr Leung expressed regret for his actions in creating the WhatsApp group in which he messaged colleagues about the work experience students. He said by doing so he placed his colleagues under unnecessary pressure. He said he recognised that by imposing on colleagues to look after the two students, his actions had the potential to place patient safety at risk because full and proper care and treatment may not have been given to patients. In addition, he said that the whole arrangements would not have provided the students the full benefit of their work experience due to the lack of support and the absence of a proper training programme. Dr Leung accepted that his actions placed the Trust in a difficult position because it was unable to provide the full support and a planned training programme for the students, and because it was unable to ensure it met its legal obligations in terms of undertaking a risk assessment, health and safety, etc. 5. Dr Leung told the Tribunal that after this incident, Dr A and Dr N met with him to discuss the issues, at which meeting he was advised as to the proper process to be followed in future. He told the Tribunal that he had now read and understood the Trust's policy. He said that he had also refreshed his knowledge of Good Medical Practice (GMP) in respect of these matters. He told the Tribunal that he did not intentionally breach the Trust's policy. 6. In relation to paragraph 7 of the Allegation, Dr Leung accepted that his failings in the management of Patient E were serious. He told the Tribunal that he recognised his mistakes and was deeply regretful. He said he accepted the findings of the Coroner that his mismanagement of Patient E contributed to her death. Dr Leung told the Tribunal that at the time of treating Patient E, he wrongly made an assumption that the dentist had already carried out an International Normalisation Ratio (INR), as he understood they are required to do, before carrying out the extraction procedure. He told the Tribunal his decisions were wrong and that he was deeply regretful for his actions in several areas such as clinical decision making; inadequate assessment of Patient E such as undertaking an INR and other baseline tests; referring to relevant guidelines; and not raising any concerns with his senior colleagues. He added that Patient E's bleeding had stopped and she did not display any signs that further intervention measures were required. Further, Dr Leung said that his clinical experience of undertaking dental procedures during his dental training provided him some assurance that the treatment and the management plan he had put in place for Patient E was correct. He explained that he had undertaken



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between 40 – 50 such procedures at dental school, albeit, these were in a supervised setting. 7. Dr Leung said that he recognised that there are limitations in his clinical experience and that he needed to get deeper insight into his own abilities, particularly when treating patients with complex conditions. Dr Leung said that after these events, he made changes to his practice and his whole approach to medical care in that he is now more thorough when assessing patients. He checks all observations himself and ensures all blood tests are taken; and that a patient who is taking warfarin receives the correct treatment, the sockets are packed, and the on-call registrar is informed of such cases. 8. He went on to say that after this incident, he met with Dr A and Mr U where he discussed his reflections on the management of Patient E and any learning points, including changes he had made to his practice, which Dr A and Mr U were satisfied with. Furthermore, he said that he contacted his previous supervisor at dental school to explain what had happened. Dr Leung told the Tribunal that for the next three to four months he worked at the hospital, he reviewed every clinical decision he made. He said there were no further concerns about his clinical practice. Dr Leung said that he also undertook appropriate training to address his failings. He said that he was not the clinician he was at the time of these events. 9. In relation to paragraph 8 of the Allegation, Dr Leung accepted he breached the Trust policy. He said it would never happen again. He explained the circumstances surrounding the events. He told the Tribunal that one of the individuals is a GP who undertook locum work at the hospital. The other individual was a medical student at the hospital. He said that given their professional capacities, he would expect them to be aware of and adhere to their responsibilities in relation to data protection requirements and the need for patient confidentiality. However, he acknowledged that there was or may have been sensitive and confidential patient information in the consultants’ room and that it was not appropriate for him to have allowed them to stay overnight without prior authorisation. 10. Dr Leung told the Tribunal that he would never repeat this error again. He went on to say that he recognised the need to adhere to relevant policies. Dr Leung said that he has apologised to his colleagues at KCH regarding this incident and reassured them it will not be repeated. Further, he told the Tribunal that he has familiarised himself with GMC guidelines in relation to data protection and patient confidentiality. Submissions on behalf of the GMC



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11. Mr Grey referred the Tribunal to relevant authority and to relevant paragraphs of GMP which he said are engaged in this case. Mr Grey said that these were very serious departures from the standards expected of doctors and Dr Leung’s actions fell seriously below those standards. 12. Mr Grey said it is not enough for the doctor to say ‘I did not know’ because the duty is upon Dr Leung to ensure he familiarised himself with the appropriate policies. He said that Dr Leung’s actions in relation to paragraph 1 of the Allegation deprived the Trust of the ability to protect patients, the students and Dr Leung. Mr Grey said that Dr Leung’s actions were serious fundamental failings and were significant departures from GMP. Mr Grey referred the Tribunal to paragraphs 11, 12, 36 and 37 in this regard. 13. In relation to paragraph 7 of the Allegation, Mr Grey reminded the Tribunal that Dr Leung accepts that his failings were serious. Mr Grey submitted that these were fundamental and profound failures, which were serious and deplorable, which led to serious consequences for Patient E. Mr Grey referred the Tribunal to paragraphs 11, 15a – c, 16b, 16d, 18 and 57 of GMP in this regard. 14. In relation to paragraph 8 of the Allegation, Mr Grey said there were serious concerns about Dr Leung’s behaviour around patient confidentiality. He said Dr Leung’s action in allowing two non-staff members to stay overnight in the consultants’ room was a serious failure, given the risk that patient confidentiality could have been breached. He said that Dr Leung’s actions breached the ethical principles, data protection principles and patient confidentiality. Mr Grey referred the Tribunal to paragraph 50 of GMP in this regard. He also referred the Tribunal to paragraph 8b - d of the GMC guidance on patient confidentiality. 15. Mr Grey then addressed the Tribunal in relation to impairment and submitted that the Tribunal should consider, in stages whether the doctor was impaired at the time and, if he was, then consider what has happened since. Mr Grey said that whilst it is accepted that Dr Leung's conduct in relation to paragraphs 1, 7 and 8 is remediable, he has demonstrated no evidence of this. Mr Grey further submitted that the Tribunal should have regard to the wider public interest in regard to the issue of impairment. 16. Mr Grey submitted that in relation to paragraph 1, Dr Leung failed to follow the proper process when he arranged for the two young people to undertake work experience. Mr Grey reminded the Tribunal that in his evidence, Dr Leung told the Tribunal that he had read and understood the Trust policy and that he deeply regretted his actions. However, Mr Grey submitted that during cross examination, when asked about his understanding of the Trust's policy and the employer's insurance policy, Dr Leung was unable to provide a satisfactory answer. Mr Grey submitted there was no evidence of remediation and, as a result, no assurance that Dr Leung will not repeat his conduct.



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17. In relation to Paragraph 7, Mr Grey reminded the Tribunal that Dr Leung, during his evidence, accepted the findings of the Coroner into the death of Patient E and accepted that he made serious errors which contributed to Patient E's death. Mr Grey said that despite this, the only remediation that Dr Leung has undertaken is to complete some online courses. Mr Grey said that there is no other evidence to satisfy the Tribunal that Dr Leung has remediated his conduct. The only other evidence includes actions, including to satisfactorily complete his revalidation, which are matters he is required to do as part of his GMC registration. Further, Mr Grey submitted that Dr Leung has not provided any evidence that he understood the consequences of his actions such that he would prevent making the same errors again. Furthermore, Mr Grey submitted that the remediation undertaken by Dr Leung was all about himself and at no point has he demonstrated any insight into the effect of his actions on Patient E's family, the Trust and his colleagues. Mr Grey submitted that, in the absence of such evidence, there is a risk of repetition. 18. In relation to Paragraph 8, Mr Grey submitted that despite Dr Leung's assertion that he understands the importance of data protection and patient confidentiality, the Tribunal should consider whether it was satisfied this insight was sufficiently demonstrated. Mr Grey said that Dr Leung has not been able to demonstrate that he understood the key principles that went wrong into what was a profound breach of his duties in respect of data protection. He submitted that Dr Leung has not provided sufficient evidence that he understood the implications of his actions. Mr Grey submitted that, again, Dr Leung presented a risk of repetition. 19. Mr Grey submitted that Dr Leung's fitness to practise is currently impaired and he invited the Tribunal to find the same. Submissions on behalf of Dr Leung 20. Mr Gurney reminded the Tribunal that it must first consider whether Dr Leung's actions amount to misconduct, before deciding whether his fitness to practise is impaired. He said that, only in this way can the Tribunal consider whether Dr Leung's fitness to practise is currently impaired. Mr Gurney conceded, on Dr Leung's behalf, that his actions in relation to Paragraph 7 were misconduct. 21. Mr Gurney referred the Tribunal to relevant authority and said that the purpose of these proceedings is not to punish the practitioner but to protect the public. He referred the Tribunal to paragraph 31 of the SG which sets out that the attitude of the practitioner which gave rise to the allegations must be taken into account. He submitted that Tribunal should also take into account any admissions made by the doctor. Mr Gurney reminded the Tribunal of its powers to issue a warning where this was considered appropriate.



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22. Mr Gurney referred the Tribunal to the chronology of the events in this case and reminded the Tribunal that the matters set out in Paragraph 1 (October 2016) and Paragraph 7 (July 2017) had already been resolved locally with 'words of advice'. The only reason these matters have been investigated is because of the matters set out in Paragraph 8 of the Allegation. 23. Mr Gurney submitted that the matters set out in Paragraph 1 did not amount to serious professional misconduct. He took the Tribunal through the evidence, including the email correspondence between Dr Leung and Dr A and between Dr Leung and Ms M. Mr Gurney said that Dr Leung took all reasonable steps he could have to ensure that the process to allow the two students to undertake work experience was followed. He said that Dr Leung accepts that he should have contacted the Human Resources Team rather than Ms M. Mr Gurney said however, it is clear from the evidence that there was a misunderstanding on the part of Dr Leung and he initiated the process in the wrong way. He reminded the Tribunal that Dr Leung did seek advice from Dr A and because she was unsure, she asked Dr Leung to liaise with Ms M. Mr Gurney said that there was a lack of clarity between the witnesses as to what the proper process was at the time. He submitted that Dr A in her email correspondence made it clear that Ms M was the person with whom Dr Leung should liaise. Mr Gurney reminded the Tribunal that in her witness statement, Dr A stated that she advised Ms M to go ahead and make the arrangements. 24. Mr Gurney said that Dr Leung's admission in relation to Paragraph 1 of the Allegation is not about his failure to comply with the Trust policy but rather, that he allowed the two students to undertake work experience. Mr Gurney said that whilst the GMC assert that work experience students would never be with the on-call team, this is contradictory to Dr B's evidence that students sometimes are placed with the on-call team. Mr Gurney reminded the Tribunal that these matters were addressed locally at the time. In relation to the Trust policy and Dr Leung's responses to questions put to him by the GMC at cross examination, Mr Gurney submitted that the questions were about the effect on students on the lack of 'insurance' rather than the Trust's policy. This, he submitted, was the reason for the confusion in Dr Leung's responses. He reminded that no patient came to any harm. Mr Gurney submitted that these matters do not amount to serious professional misconduct. In any event, Dr Leung had remediated any misconduct. 25. In relation to Paragraph 8, Mr Gurney reminded the Tribunal that this incident took place some twelve months after the matters set in Paragraph 1. He said that Dr Leung has admitted he made an error. he reminded the Tribunal that Dr Leung, in the Trust interview, accepted that his actions were an ‘extremely poor judgement call’ and that he ‘abused privilege of’ and ‘placed confidentiality of patients at risk’. However, Mr Gurney said that Dr Leung did not realise the severity of his actions at the time.



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26. Mr Gurney said that this was not a case of simply inviting friends to stay overnight, the two individuals were professionals, one being a GP and the other being a medical student, and that both were known to Dr Leung. In relation to the medical student, who was shadowing Dr Leung, Dr Leung was concerned about her going home at night-time and therefore allowed her to stay overnight at the hospital. Mr Gurney said that the Tribunal will understand why Dr Leung trusted these two individuals. 27. Mr Gurney submitted that whilst Dr Leung's actions amount to misconduct, they are not so serious as to amount to serious professional misconduct. However, he said that even if the Tribunal find serious professional misconduct, Dr Leung has demonstrated evidence that he has remediated his conduct. he referred the Tribunal to the courses Dr Leung has completed and to the testimonials from Dr Leung's colleagues attesting to his good character, patient confidentiality and his integrity. 28. In relation to Paragraph 7, Mr Gurney said that the death of Patient E is a tragedy which Dr Leung will never forget, and he reminded the Tribunal of Dr Leung's evidence in this regard. 29. Mr Gurney told the Tribunal that Dr Leung accepted that his treatment of Patient E fell seriously below the standards expected, and that he also accepts that his actions amount to misconduct. He said that Dr Leung made a number of serious errors, most obvious of which was to make an assumption that the dentist had already undertaken an INR. Mr Gurney said that Dr Leung should have checked first and then, if necessary, undertaken an INR himself. Further, he should have checked the guidelines and sought advice of senior colleagues. Mr Gurney said that Dr Leung is under no illusion as to the seriousness of the gravity of his failings. He reminded the Tribunal of Dr Leung's evidence that he did not only fail to undertake an INR test, but that he also failed to undertake other baseline tests which are equally important. 30. Mr Gurney submitted that this was an isolated incident, involving a single patient, which occurred some thirteen months ago, in an otherwise unblemished career. He said that Dr Leung has recognised his failings and has taken steps to address them. This shows that he has insight into his misconduct. Mr Gurney said that it is clear from the evidence that this is a doctor who has deeply reflected and taken steps to remediate his misconduct, a doctor who is determined not to make the same mistakes again. In this regard, Mr Gurney reminded the Tribunal that Dr Leung has completely changed his clinical practice, including that he never makes any assumptions. He is much more cautious in his approach. He submitted that the GMC had focused in submissions on six headings of remediation, whereas this ignored a wealth of material set out. 31. Mr Gurney said that it is clear from the evidence before the Tribunal that Dr Leung is highly regarded by his colleagues and tutors and that there are no concerns



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about his clinical practice. He reminded the Tribunal that the concerns were resolved locally following the internal investigation, and Dr Leung was allowed to continue to practise without restrictions. 32. Mr Gurney said that there have been no further concerns about Dr Leung's clinical practice. Dr Leung has cooperated with his employers, his regulator and these proceedings. All of these matters go towards demonstrating that Dr Leung has insight into the seriousness of his conduct. He reminded the Tribunal that Dr Leung has completed his dental training and that he has undertaken teaching sessions to dental students. Furthermore, he has completed online courses which demonstrate he has learned from his errors. Mr Gurney submitted that on the whole, the evidence before the Tribunal demonstrates that Dr Leung has taken steps to remediate his conduct, that he is more than capable of being a safe and caring practitioner and does not pose a risk to patient safety. Mr Gurney said the Tribunal can be satisfied that there is no risk of Dr Leung repeating his misconduct. 33. In relation to the public interest, Mr Gurney submitted that a member of the public, aware of all the facts in this case, including the admissions made by Dr Leung and the steps he has taken to remediate his misconduct and of his insight, would not expect a finding of impairment. 34. In all the circumstances, Mr Gurney submitted that Dr Leung's fitness to practise is not impaired and he invited the Tribunal to find the same. The Tribunal's Approach 35. The Tribunal reminded itself that, at this stage of proceedings, there is no burden or standard of proof and the decision of impairment is a matter for the Tribunal’s judgment alone. 36. In approaching the decision, the Tribunal was mindful of the two-stage process to be adopted: first whether the facts as found proved amounted to misconduct which was serious professional misconduct, and then second whether that misconduct led to a finding of current impairment. 37. The Tribunal has already given a detailed determination in relation to the facts of Dr Leung’s case. It has taken those matters into account in its deliberations. It has also taken into account the submissions made by Mr Grey and Mr Gurney. 38. Throughout its deliberations, the Tribunal has been mindful of its responsibility to uphold the overarching objective as set out in the Medical Act 1983 (as amended). That objective is the protection of the public and involves the pursuit of the following: a. to protect, promote and maintain the health, safety and wellbeing of the public



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b. to maintain public confidence in the profession c. to promote and maintain proper professional standards and conduct for members of the profession The Tribunal’s Decision Misconduct 39. The Tribunal first considered whether the facts found proved are a sufficiently serious departure from the standards of conduct reasonably expected of Dr Leung as a registered medical practitioner to amount to misconduct. In its deliberations, the Tribunal had regard to the current version of GMP (March 2013). It also noted that Misconduct is not defined by statute but it has been said to be serious professional misconduct or conduct which a fellow professional would regard as deplorable. 40. In its deliberations, the Tribunal had regard to paragraphs 1 and 65 of GMP. These state: “1. Patients need good doctors. Good doctors …. are honest and trustworthy, and act with integrity and within the law. 65. You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession.” Paragraph 1 41. Dr Leung's evidence is that when he sent his email to Ms M, and copied Dr A into that email, it was his understanding this was sufficient in order to obtain Dr A’s consent for the two students to be allowed to undertake work experience. Dr Leung's evidence, confirmed by Ms M in her witness statement, was that she was the person who would make the necessary arrangements for student work experience. In her email of 15 October 2018 to Dr Leung, Dr A stated: ‘I m to accommodate these friends of your but Ms M needs to check the process. I don’t see a problem. Ms M – please can I leave you to deal with these A level students coming for work experience.’ 42. The Tribunal noted that not only did Dr A authorise the work experience for the two students, but she herself was also unclear as to the process which needed to be followed. 43. The Tribunal accepted Dr Leung's evidence that he should have made further inquiries as to the formal procedures to be followed. It also accepted his evidence in



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relation to the consent process. The Tribunal was of the view that it was reasonable for Dr Leung to have assumed that Dr A 's email to Ms M constituted her consent to the work experience placements. It was clear to the Tribunal that there was some confusion as to the Trust's policy in relation to work experience placements. 44. The Tribunal was of the view that Dr Leung, understandably, made an error. It determined that Dr Leung's actions, albeit in breach of trust policy, did not amount to misconduct. Paragraph 8 45. The Tribunal determined that Dr Leung's actions were in breach of the Trust's policy and GMP, in relation to their respective requirements concerning data protection and patient confidentiality. It noted that confidential information would have been kept in the consultant’s room and that the two non-members of staff may have had opportunity of access to this. However, it took into account that both individuals were subject to their own professional responsibilities in their respective capacities and both had undertaken work at the hospital in some capacity. It took the view that they would have been aware of their responsibility relating to patient confidentiality. 46. The Tribunal noted that, in his email dated 13 October 2017, Dr R makes no reference to any breach of confidentiality. He stated: ‘I would like to remind you that the above mentioned room is the office of myself, Dr N, Mr P and Miss Q. It is not to be used as an on-call room, common room or an Airbnb for any waifs and strays that do not have a room for the night.’ 47. The Tribunal determined that, in view of the potential risk of breach of patient confidentiality, Dr Leung's actions were matters of concern. However, it considered that this would not be considered as reaching a level of being regarded as deplorable by fellow professionals but rather amounted to an error of judgement on the part of the doctor. 48. The Tribunal therefore determined that Dr Leung's actions did not amount to misconduct. Paragraph 7 49. Although the Tribunal found paragraph 7(c) not proved, it considered



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paragraph 7 in light of the admitted facts found proved in relation to Paragraphs 7(a)(i), 7(b) and 7(d). The Tribunal considered these were all serious matters which led to an adverse outcome for Patient E. The Tribunal took into account that by his own admission, Dr Leung accepts that his actions fell seriously below the standards expected of a doctor and that his actions amounted to misconduct. 50. Dr Leung failed to undertake an adequate medical history of Patient E. He failed to adequately assess Patient E's condition. He wrongly assumed that the dentist had undertaken an INR for Patient E. Had Dr Leung undertaken an adequate medical history of Patient E and assessed her condition, it is highly likely that the need for an INR would have been realised. The Tribunal took into account that during Patient E's attendance at hospital, there were several opportunities for Dr Leung to have requested or have undertaken an INR for Patient E, but he failed to do so. By his own evidence, he knew the importance of undertaking an INR before carrying out an extraction procedure, from his dental training. He therefore should have checked to confirm this had been done. 51. The Tribunal determined that Dr Leung's failings were serious and would be regarded as deplorable by members of the medical profession. Dr Leung's actions fell far short of the standards of conduct reasonably to be expected of a doctor. The Tribunal concluded that his actions amounted to serious professional misconduct. Impairment 52. The Tribunal, having found that the facts found proved in relation to Paragraph 7 of the Allegation amounted to misconduct, went on to consider whether Dr Leung's fitness to practise is currently impaired by reason of his misconduct. 53. The Tribunal had regard to paragraph 76 of the judgment in the case of CHRE v NMC & Paula Grant [2011] EWHC 927 (Admin), in which Mrs Justice Cox provided a helpful approach to the determination of impairment: ‘Do our findings of fact in respect of the doctor’s misconduct…show that his/her fitness to practise is impaired in the sense that s/he: a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or… d. has in the past acted dishonestly and/or is liable to act dishonestly in the future.’



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54. The Tribunal considered whether Dr Leung’s misconduct was capable of being remediated, has been remediated, and whether the misconduct was highly unlikely to be repeated. In so doing, it considered whether there was evidence of Dr Leung’s insight into his misconduct and any steps taken by him to remediate it. 55. The Tribunal considered whether Dr Leung had demonstrated insight into his misconduct. Dr Leung accepted that he made serious errors when he treated Patient E. He told the Tribunal that he had learnt from his dental training that dentists are required to undertake an INR of the patient before commencing an extraction procedure. He also told the Tribunal that he should have undertaken other tests to establish a baseline picture of Patient E's condition but failed to do so. He said that since these events, he has changed his approach to medical practice. He said that he now takes personal responsibility for ensuring that tests are undertaken, and that he always obtains the patient's observations before deciding on the appropriate treatment plan. He also told the Tribunal that he follows guidelines and consults his senior colleagues, where necessary. 56. The Tribunal determined that Dr Leung’s misconduct as found was remediable in that it was a performance related issue which could be rectified. 57. The Tribunal went on to determine whether Dr Leung has remediated his misconduct. In this regard, the Tribunal took into account Dr Leung's witness statement in which he speaks of what he would and should do to improve his clinical practice. The Tribunal accepted Dr Leung's evidence, including his oral evidence, that in future, he intended to ensure that he undertakes all relevant tests, including INR. 58. Dr Leung has provided significant evidence in the form of certificates for courses he has attended to address the concerns in this case. This includes, but is not limited to, a number of GMC Self Assessment courses in Confidentiality, Raising Concerns, Respect for Patients, Professional Knowledge and Skills and Team Working. 59. The Tribunal took into account that the events relating to Patient E occurred in July 2017. Dr Leung continued to work at KCH for a brief period until October 2017. From this date, he was undertaking his studies in dentistry. Dr Leung has not undertaken any medical practice since October 2017. 60. The Tribunal has been provided with significant testimonial evidence from Dr Leung's professional colleagues and tutors, all of whom speak highly of his clinical abilities. The Tribunal noted that the referees had no concerns about Dr Leung's clinical practice. However, these testimonials do not relate to the period when these events occurred or to the period up to October 2017 when he continued to work in medical practice.



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61. The Tribunal took into account that when giving evidence under cross examination, Dr Leung was unable to fully explain why he had not considered it necessary to take an INR reading, given his medical and dental training, except to say that it is a requirement for the dentist to undertake this and he had assumed the dentist had done so. This was not a satisfactory answer for the serious failing on his part. The tribunal noted that he had examined Patient E on three occasions over the time of her attendance at hospital. The issue had clearly been in his mind. However, he did not ask Patient E if the dentist had checked her INR. 62. Mr H in his evidence stated that undertaking an INR was routine in such cases and that Dr Leung should have known this and arranged for or undertaken an INR. Mr H’s view was that this was an obvious and necessary step to have taken. The Tribunal was concerned that Dr Leung has undertaken very little clinical practice since these events. Further, it has no objective evidence of his performance. Dr Leung’s insight, during cross examination, was limited to what he would do in the future. He attributed his misconduct to his assumption that the dentist would have undertaken the INR. Dr Leung failed to follow basic professional training including history taking, INR and asking for assistance from his senior colleagues. 63. The Tribunal noted, having regard to the totality of the evidence before it, that Dr Leung did not consistently check patients’ medical records, for example, in relation to Patient D, despite Patient D’s observations being available to Dr Leung, he did not check these before he told Dr B that they were fine. 64. Whilst the Tribunal is satisfied that Dr Leung has commenced on a remediation journey, it is not, based on the evidence before it, satisfied that he has fully developed his insight into the concerns. As a consequence, the Tribunal concluded that it could not say that Dr Leung has fully remediated his past misconduct and therefore that it is highly unlikely that he will not repeat his past misconduct. The Tribunal determined that for it to be persuaded that Dr Leung had fully remediated his misconduct, it would have expected to see, for example, actual evidence of his new approach to medicine ‘in practice’ over a period of time; his insight into the effect of his misconduct on the reputation of the medical profession and the effect of his actions on Patient E’s family and on the public confidence in the medical profession. 65. The Tribunal reminded itself that it should not lose sight of the fundamental considerations set out in the overarching objective, namely the need to maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour for the profession. It considered that in this case of misconduct, a fundamental rule of the professional relationship between Doctor and patient had been breached, in terms of the need for the doctor to take steps that were basic and obvious to protect the patient. This thereby risked undermining public confidence in the profession. The Tribunal determined that Dr Leung’s conduct would be considered deplorable by other members of the profession. It



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considered that his actions had brought the medical profession into disrepute. The Tribunal considered that the public would expect there to be a finding of impairment in a case where the doctor had failed to follow basic actions, which contributed to the death of a patient. 66. In all the circumstances, the Tribunal determined that a finding of impaired fitness to practise was required in order to protect, promote and maintain the health, safety and wellbeing of the public, to maintain public confidence in the profession, and to promote and maintain proper professional standards and conduct for members of the profession. 67. Dr Leung’s fitness to practise is therefore impaired because of his misconduct. Determination on Sanction and Immediate Order - 20/01/2020 1. Having determined that Dr Leung’s fitness to practise is impaired by reason of misconduct, the Tribunal now has to decide in accordance with Rule 17(2) (n) of the Rules on the appropriate sanction, if any, to impose. Submissions on behalf of the GMC 2. Mr Hamlet submitted that the appropriate sanction was one of suspension. He reminded the Tribunal that a sanction must be appropriate and proportionate, starting with the least restrictive. He also reminded the Tribunal that it had found Dr Leung’s actions in relation to Patient E amounted to serious misconduct. 3. Mr Hamlet said that Dr Leung had breached fundamental tenets of GMP, including that he failed to assess or treat Patient E adequately and failed to seek appropriate advice from his senior colleagues when he should have done so. Mr Hamlet reminded the Tribunal of the Overarching Objective and said that all three limbs of this are engaged in this case. He referred the Tribunal to its findings as set out in its determinations on Facts and Impairment and said that this case should not be concluded with the Tribunal having taken no action, and, conditions would not be appropriate to mark the seriousness of Dr Leung’s misconduct, even though the Tribunal has the power to impose conditions for a period of up to three years. Mr Hamlet drew the Tribunal’s attention to the mitigating features in this case, including that the doctor has not repeated his misconduct although he has not practiced clinical medicine since December 2017. He also drew the Tribunal’s attention to paragraph 85 of the Sanctions Guidance (SG) (November 2019). Mr Hamlet acknowledged that there are no identifiable aggravating features in this case but submitted that Dr Leung had demonstrated very limited insight into the concerns. 4. Mr Hamlet submitted that the only sanction which would adequately address the seriousness of Dr Leung’s misconduct is a period of suspension. He therefore invited the Tribunal to suspend Dr Leung’s registration.



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Submissions on behalf of Dr Leung 5. Mr Gurney submitted that the appropriate sanction is one of conditions. He reminded the Tribunal that a sanction is not intended to be punitive and that any sanction must be proportionate and appropriate, and only imposed where it is necessary to protect the public. He also reminded the Tribunal that it must balance the doctor’s interests against the requirements of the Overarching Objective. He submitted that the purpose of the SG is to provide guidance only. 6. Mr Gurney took the Tribunal through the mitigating features including that Dr Leung has no previous adverse history, and that this was a one-off isolated incident which took place during a night shift, some eighteen months ago. Mr Gurney reminded the Tribunal that Dr Leung has now completed his dental training and that he has continued to provide a high standard of care to patients, albeit working under supervision. While accepting that the testimonials did not cover the period relating to the incident, Mr Gurney said that the Tribunal should give appropriate weight to these. 7. Mr Gurney said that Dr Leung continues to express regret and remorse for his actions. He reminded the Tribunal that Dr Leung has apologised to Patient E’s family and his colleagues for his actions; he has cooperated with the Trust’s investigation and has cooperated with the GMC’s investigation; and that he has recognised the seriousness of his errors at each stage of these proceedings, demonstrated by his acceptance that his actions amounted to serious misconduct in relation to Patient E. 8. Mr Gurney reminded the Tribunal it that it had found Dr Leung’s misconduct is remediable, had accepted his evidence that he intended to change his clinical practice, and had recognised that he has begun a remediation journey though this is not yet complete. He added that Dr Leung too recognises that there is more work to be done and he intends to take further steps to remediate his misconduct and aims to reflect upon the concerns and address them. He reminded the Tribunal that Dr Leung himself, during his evidence, identified some of the reasons for his actions, and acknowledged that he was over confident of his own clinical knowledge/skills and beliefs at the time of the events. 9. Mr Gurney said that, following the incident, Dr Leung’s supervisors discussed the case with him, and they were satisfied that there were no concerns about Dr Leung’s clinical skills or performance and that he posed no risk to patients. He reminded the Tribunal that Dr Leung continued to work until December 2017 with no further concerns. Mr Gurney acknowledged that the Tribunal has not been provided with any objective evidence of Dr Leung’s independent clinical practice as he has not undertaken any clinical work. He submitted that a period of conditional registration will allow him to evidence this and provide it to the Tribunal.



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10. Mr Gurney submitted that a period of suspension would be an unduly harsh sanction. He reminded the Tribunal of the stage Dr Leung is at in terms of his medical career. He also reminded the Tribunal of Dr Leung’s evidence that he intends to obtain a clinical placement at KCH pending the outcome of these proceedings. Mr Gurney said that Dr Leung recognises that a period of time is needed for him to regain his level of confidence and that a period of suspension would only delay that process. 11. Mr Gurney referred the Tribunal to paragraphs 79, 80, 81, 82 (a – d), 84 (a – e) and 85 of the SG which he said indicated why a period of conditional registration is the appropriate and proportionate sanction. He said that this is not a case where a period of suspension is required to send out a message to other professionals. Mr Gurney said this case does not meet the threshold for a suspension. He submitted that workable conditions could be formulated to address the concerns and suggested conditions which may be appropriate, including basic Supervision as Dr Leung has not practised independently for almost two years. Mr Gurney said that anything more than the basic level of supervision would restrict Dr Leung from securing suitable employment opportunities and restrict his locum work or short fixed term contract. Mr Gurney also suggested that a condition requiring a Personal Development Plan be drawn up to work around the outstanding issues such as seeking advice, history taking and examination, managing acute presentations could also be included. 12. Mr Gurney said that conditions will allow Dr Leung to continue to work and to address the issues, whilst at the same time, protect the requirements of the Overarching Objective and uphold public confidence in the medical profession. Mr Gurney added that conditions would allow Dr Leung to complete the remediation journey. He submitted that, taking all of the evidence into account, the public would not be surprised that Dr Leung had been allowed to return to work with conditions. He said that the public recognise that doctors are human beings and can make mistakes, but it is important to recognise how they respond to them. Dr Leung has, so far, responded well and will continue to do so. 13. Mr Gurney invited the Tribunal to impose a period of conditional registration upon Dr Leung’s registration. The Tribunal’s Approach 14. The decision as to the appropriate sanction, if any, to impose is a matter for the Tribunal, exercising its own judgement. In so doing, it has given consideration to its findings of fact, misconduct and impaired fitness to practise and the submissions made by Mr Hamlet and Mr Gurney. 15. Throughout its deliberations the Tribunal bore in mind that the purpose of sanctions is not to be punitive, but to protect the public interest. The public interest



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includes protecting the health, safety and wellbeing of the public, maintaining public confidence in the profession, and declaring and upholding proper standards of conduct and behaviour. In making its decision, the Tribunal also had regard to the principle of proportionality, and it considered Dr Leung’s interests as well as those of the public. It also considered the mitigating factors in this case, noting that no aggravating factors had been identified by either party. 16. The Tribunal considered the following mitigating factors were relevant: Mitigating

• This was a one-off incident, albeit a serious one;

• There is no evidence of any further complaints or concerns since the incident

up to the date Dr Leung ceased working at KCH in December 2017;

• Dr Leung has no previous adverse GMC history;

• Dr Leung was at the junior stage of his medical career, namely CT1/CT2, at

the time of the incident;

• Dr Leung’s expression of regret and remorse for his actions and his

admissions at the outset of these proceedings, his apology to Patient E’s

family;

• Dr Leung recognised the seriousness of his actions in relation to Patient E.

In coming to a decision as to the appropriate sanction, the Tribunal gave due weight to the mitigating factors and balanced these against the seriousness of Dr Leung’s actions in relation to Patient E, having particular regard to patient safety and the public interest, as well as the public perception of Dr Leung’s actions. The Tribunal’s Decision No action 17. In coming to its decision as to the appropriate sanction, if any, to impose in Dr Leung’s case, the Tribunal first considered whether to take no action. The Tribunal considered, amongst others, paragraphs 68-70 of the SG which highlights that taking no action following a finding of impaired fitness to practise may be appropriate in exceptional circumstances. 18. The Tribunal determined there were no exceptional circumstances in this case. Therefore, taking no action would not be appropriate, proportionate nor in the public interest given the seriousness of the misconduct. Conditions



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19. The Tribunal next considered whether it would be sufficient to impose conditions on Dr Leung’s registration. The Tribunal took account of paragraphs 82 (a), (b), (c), (d) and 84 (a), (b) and (c) of the SG. These state: ‘82 Conditions are likely to be workable where: a the doctor has insight; b a period of retraining and/or supervision is likely to be the most appropriate way of addressing any findings; c the tribunal is satisfied the doctor will comply with them; d the doctor has the potential to respond positively to remediation, or retraining, or to their work being supervised. 84 Depending on the type of case (eg health, language, performance or misconduct), some or all of the following factors being present (this list is not exhaustive) would indicate that conditions may be appropriate: a no evidence that demonstrates remediation is unlikely to be successful, eg because of previous unsuccessful attempts or a doctor’s unwillingness to engage; b identifiable areas of their practice are in need of assessment or retraining; c willing to respond positively to retraining, with evidence that they are committed to keeping their knowledge and skills up to date throughout their working life, improving the quality of their work and promoting patient safety (Good medical practice, paragraphs 7–13 on knowledge, skills and performance and paragraphs 22–23 on safety and quality).’ 20. It also had regard to paragraph 85 of the SG, which states: ‘85 Conditions should be appropriate, proportionate, workable and

measurable.’ 21. The Tribunal took into account that in its determination on impairment, it had found serious failings by Dr Leung. Despite having examined Patient E on three occasions over the time of her attendance at hospital, he failed to undertake or order an INR, and failed to follow basic professional training including history taking



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and asking for assistance from his senior colleagues. Mr H, in his report, said that these were obvious things to do. Dr Leung’s failings contributed to the death of Patient E. 22. The Tribunal took into account that this was an isolated incident, which took place when Dr Leung was a junior doctor. During his evidence, Dr Leung recognised and accepted that his actions were serious and he expressed remorse for his actions and apologised to Patient E’s family. He told the Tribunal that he has now changed his clinical practice and would personally ensure that an INR and other basic tests are undertaken. The Tribunal noted, however, that it has not been provided with any objective evidence to support this because Dr Leung has not undertaken any clinical practice for some two years. 23. Dr Leung provided evidence of courses he has attended and completed to address the concerns identified. He has provided testimonials from his colleagues at his Dental Training institution which confirm that he is a good doctor and provides a high standard of care to his patients. The Tribunal is satisfied that Dr Leung has taken steps to remediate his misconduct. He demonstrated to the Tribunal that he has begun on a journey of remediation and he has accepted that he still has some way to go before the journey is complete. It took into account that Dr Leung has no previous history with the GMC and there have been no further complaints about his clinical practice. The Tribunal considers, based on the evidence before it, that there is a low, albeit some, risk of Dr Leung repeating his misconduct. 24. In view of the above, the Tribunal concluded that Dr Leung’s misconduct could adequately be marked with a period of conditional registration. The Tribunal determined that conditions would promote and serve the overarching objective, whilst, at the same time, adequately mark the seriousness with which it viewed Dr Leung’s actions. Further, a period of conditional registration would allow Dr Leung to continue to work towards completing his journey of remediation, and to be able to demonstrate, with objective evidence, that he has learnt from his past failings and that he has implemented steps to address them. 25. The Tribunal therefore determined to impose the following conditions upon Dr Leung’s registration: 1 He must personally ensure the GMC is notified of the following

information within seven calendar days of the date these conditions become effective:

a The details of his current post, including: i his job title; ii his job location; iii his responsible officer (or their nominated deputy);



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b the contact details of his employer and any contracting body, including his direct line manager; c any organisation where he has practising privileges and/or admitting rights; d any training programmes he is in. 2 He must personally ensure the GMC is notified: a of any post he accepts, before starting it; b that all relevant people have been notified of his conditions, in accordance with condition 10; c if any formal disciplinary proceedings against him are started by his employer and/or contracting body, within seven calendar days of being formally notified of such proceedings; d if any of his posts, practising privileges, or admitting rights have been suspended or terminated by his employer before the agreed date within seven calendar days of being notified of the termination; e if he applies for a post outside the UK. 3 He must allow the GMC to exchange information with any person involved in monitoring his compliance with his conditions. 4 a He must have a workplace reporter appointed by his responsible officer (or their nominated deputy). b He must not work until: i his responsible officer (or their nominated deputy) has appointed his workplace reporter; ii he has personally ensured that the GMC has been notified of the name and contact details of his workplace reporter. 5 a He must design a Personal Development Plan (PDP), with specific aims to address the deficiencies in the following areas of his practice:

• history taking;



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• ordering appropriate investigations;

• developing appropriate patient treatment plans;

• seeking advice from senior colleagues.

b His PDP must be approved by his responsible officer (or their nominated deputy). c He must give the GMC a copy of his approved PDP within three months of these substantive conditions becoming effective. d He must give the GMC a copy of his approved PDP on request. e He must meet with his responsible officer (or their nominated deputy), as required, to discuss his achievements against the aims of his PDP. 6 He must only work in NHS posts (except that this condition shall not

apply to his role as a surgical anatomist for University of Oxford or similar Academic Institutions).

7 a He must be closely supervised in all of his posts by a clinical supervisor, as defined in the Glossary for undertakings and conditions. His clinical supervisor must be approved by his responsible officer (or their nominated deputy). b He must not work until: i his responsible officer (or their nominated deputy) has appointed his clinical supervisor and approved his supervision arrangements; ii he has personally ensured that the GMC has been notified of the name and contact details of his clinical supervisor and his supervision arrangements. 8 a He must get the approval of his responsible officer (or their nominated deputy) before working as: i a locum / in a fixed term contract ii out-of-hours iii on-call. b He must not work until:



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i his responsible officer (or their nominated deputy) has confirmed approval ii he has personally ensured that the GMC has been notified of the approval of his responsible officer (or their nominated deputy). 9 He must not work in any locum post or fixed term contract of less than 26 weeks duration. 10 He must personally ensure the following persons are notified of the conditions listed at 1 to 9: a his responsible officer (or their nominated deputy) b the responsible officer of the following organisations: i his place(s) of work, and any prospective place of work (at the time of application); ii all of his contracting bodies and any prospective contracting body (prior to entering a contract); iii any organisation where he has, or has applied for, practising privileges and/or admitting rights (at the time of application); iv any locum agency or out of hours service he is registered with; v if any of the organisations listed at (i to iv) does not have a responsible officer, he must notify the person with responsibility for overall clinical governance within that organisation. If he is unable to identify that person, he must contact the GMC for advice before working for that organisation. c his immediate line manager and senior clinician (where there is one) at his place of work, at least 24 hours before starting work (for current and new posts, including locum posts). 26. The Tribunal has decided that Dr Leung’s clinical practice should be closely supervised (Condition 7). This is because he has not undertaken any clinical practice for some two years. The Tribunal considered that this level of supervision will support Dr Leung to rebuild his confidence in his clinical skills, whilst providing the necessary safeguards to ensure patient safety and public protection. 27. The Tribunal considered Mr Hamlet’s submission that the appropriate sanction is one of suspension. However, having had regard to paragraphs 91, 92, 93 and 97(b), and having balanced the mitigating factors against the seriousness of Dr



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Leung’s misconduct, and based on the evidence before it, the Tribunal did not consider that suspension was the appropriate sanction. Length of Sanction 28. The Tribunal determined that the length of the sanction should be eighteen months as this would allow Dr Leung to undertake further remediation and to demonstrate objective evidence that he has addressed the concerns identified in this case, as well as other concerns which this Tribunal has identified. A period of conditional registration will also serve to reassure the public and uphold the reputation of the profession. Review 29. The Tribunal directs that before the end of the period of conditional registration, Dr Leung’s case be reviewed by a Medical Practitioners Tribunal. A letter will be sent to him about the arrangements for the review hearing. The Tribunal considered that those reviewing Dr Leung’s case would be assisted by receiving the following:

• Reports from Dr Leung’s supervisors about his clinical practice, including the

four areas identified in condition 5a;

• A further personal statement from Dr Leung setting out his reflections or

other document which shows that he has reflected on his misconduct;

• Any other information which Dr Leung considers would assist the Tribunal.

Immediate Order 30. Having handed down its determination on sanction, the Tribunal invited further submissions from parties. Mr Grey, now re-representing the GMC, made no further submissions except that the interim order of conditions in place upon Dr Leung’s registration should be revoked. 31. The Tribunal considered, in accordance with Section 38 of the Medical Act 1983 as amended, whether to impose an immediate order. 32. The Tribunal has taken account of the relevant paragraphs of the SG in relation to when it is appropriate to impose an immediate order. Paragraph 172 of the SG states: “The tribunal may impose an immediate order if it determines that it is necessary to protect members of the public, or is otherwise in the public interest, or is in the best interests of the doctor…”



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33. The Tribunal has determined that, based on the information before it, and given its findings on impairment and sanction, it is not necessary, for the protection of members of the public, or in the public interest, to make an immediate order of conditions upon Dr Leung’s registration. 34. The interim order of conditions is revoked. 35. That concludes the case. Confirmed Date 20 January 2020 Mr Paul Moulder, Chair



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ANNEX A – 14/11/2019

Application under Rule 17(2)(g) 1. At the end of the GMC case, Mr Gurney, on Dr Leung’s behalf, made an application under Rule 17(2)(g) of the Rules, which states:

“the practitioner may make submissions as to whether sufficient evidence has been adduced to find some or all of the facts proved and whether the hearing should proceed no further as a result, and the Medical Practitioners Tribunal shall consider any such submissions and announce its decision as to whether they should be upheld”.

2. This application related to paragraphs 7(a)(ii) and 7(e) of the Allegation. Submissions on Dr Leung’s behalf Paragraph 7(a)(ii) 3. Mr Gurney submitted that the GMC case relied upon the expert’s evidence and referred to the oral evidence given by Mr H, that the notes written in the medical records by Dr Leung probably did equate to an adequate medical history. Mr Gurney referred to Mr H’s comments that he would, in those circumstances, only write down ‘Warfarin’ rather than to record the dose or other information as it would not be relevant or required. Mr Gurney submitted that, in the context of this evidence, there was no evidence such that the Tribunal could find this paragraph of the Allegation proved. He submitted that this should proceed no further. Paragraph 7(e) 4. Mr Gurney stated that this paragraph of the Allegation referred back to paragraph 7(a)(i), which has been admitted by Dr Leung, and paragraph 7(a)(ii), which is also the subject of his application. In relation to 7(a)(i), Mr Gurney stated that Dr Leung has already admitted that he did not obtain details of Patient E’s international normalised ratio (INR). He submitted that it would not be appropriate for there to be a separate finding of a failure to record this in Patient E’s medical notes given the admission made. 5. In relation to 7(a)(ii), Mr Gurney submitted that this should fall too given his submissions in respect of no case to answer above. He submitted that paragraph 7(e) of the Allegation should therefore proceed no further. GMC Submissions 6. Mr Grey, on behalf of the GMC, confirmed that he made no positive submissions. He asked the Tribunal to consider the evidence before it.



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The Relevant Legal Principles 7. The Legally Qualified Chair (LQC) reminded the Tribunal of the case of R v Galbraith [1981] 73 Cr App R 124, in terms of the principle to be applied:

“Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witnesses reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”

Tribunal’s Decision 8. The Tribunal had regard to the relevant legal principles in its deliberations. Paragraph 7(a)(ii) 9. The Tribunal took account of Patient E’s medical records in which Dr Leung had recorded ‘Warfarin’. It had regard to Mr H’s evidence that the recording of the word alone was sufficient for these purposes in that there was an adequate medical history taken in this respect. The Tribunal found it to be clear that Mr H would not have expected another practitioner to have recorded any further details of the Warfarin therapy in the notes at that time. 10. The Tribunal determined that the GMC had not adduced sufficient evidence such that the fact in question could be found proved, primarily given Mr H’s oral evidence. The Tribunal granted Mr Gurney’s application that there was no case to answer in respect of paragraph 7(a)(ii) of the Allegation. Paragraph 7(e) 11. The Tribunal has found that there is no case to answer in respect of paragraph 7(a)(ii) of the Allegation. For the reasons expressed above it determined to grant Mr Gurney’s application regarding paragraph 7(e) in respect of paragraph 7(a)(ii) of the Allegation. The Tribunal would not be able to find a failing in respect of Dr Leung not recording the INR. 12. In respect of paragraph 7(e) in relation to paragraph 7(a)(i), the Tribunal noted that Dr Leung has admitted that he did not obtain an adequate medical history of Patient E, in that he did not obtain details of Patient E’s INR. The Tribunal



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has had regard to the admission made by Dr Leung, that he did not ask for the INR figure and that he assumed the dentist who had completed the teeth extractions would have taken the INR. The Tribunal determined that it would not be appropriate to find a failure to record something that the practitioner has admitted did not occur and that this was an unnecessary duplication. 13. The Tribunal accordingly determined that there is no case to answer in respect of paragraph 7(e) of the Allegation.

Documents

Medical Practitioner’s name · a career in OMFS which required dual qualification in medicine and dentistry. He commenced a three-year dental training programme at King’s College