PUBLIC RECORD - mpts-uk.org · Whilst working at the Diana Princess of Wales Hospital in July 2013 concerns were raised in relation to sentinel node biopsy procedures which Dr Agabiti

Record of Determinations –

Medical Practitioners Tribunal

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PUBLIC RECORD Dates: 04/12/2017 – 11/12/2017 Medical Practitioner’s name: Dr Ennio AGABITI

GMC reference number: 4717391

Primary medical qualification: Laurea 1985 Universita Cattolica del Sacro Cuore, Roma

Type of case Outcome on impairment New - Misconduct Not Impaired

Summary of outcome

Warning

Tribunal:

Legally Qualified Chair Mr Colin Chapman

Lay Tribunal Member: Ms Jacqueline Telfer

Medical Tribunal Member: Dr Paul Diprose

Tribunal Clerk: Ms Rosanna Sheerin

Attendance and Representation:

Medical Practitioner: Present and represented

Medical Practitioner’s Representative: Mr Mike Magee, Counsel, instructed by Kesteven Partners Limited

GMC Representative: Mr Paul Williams, Counsel

Attendance of Press / Public The tribunal agreed, in accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004, that the press and public be excluded from those parts of the hearing where matters under consideration were deemed confidential.



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Determination on Facts - 07/12/2017 1. At the outset of this hearing it was agreed for certain parts of this case to be heard in private pursuant to Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 (“the Rules”). The Tribunal has therefore determined that the press and public be excluded from those parts of the hearing relating to confidential matters. This determination will be read in private. However, as this case does concern Dr Agabiti’s alleged misconduct, a redacted version will be published at the close of the hearing with those confidential matters having been removed. 2. Dr Agabiti qualified in Italy in 1985 and he completed his surgical training at the University of Milan in 1991. He has been on the GMC Specialist Register since 2002. He practised in various posts around the UK as a Trust or staff grade surgeon, or as a locum consultant. 3. At the time of the events Dr Agabiti was a substantive Consultant in Breast and Oncoplastic Surgery at the Princess Wales Hospital, Grimsby, part of the North Lincolnshire and Goole NHS Foundation Trust (‘NLaG’). 4. The allegation that has led to Dr Agabiti’s hearing can be summarised as follows. In June 2015, whilst subject to clinical restrictions enforced by NLaG, Dr Agabiti submitted a job application form for the post of Consultant Oncoplastic Breast Surgeon at Doncaster and Bassetlaw NHS Foundation Trust (‘the Trust’), and made untrue assertions and withheld information regarding being subject to clinical restrictions. The Outcome of Application Made during the Facts Stage 5. The Tribunal granted Mr Williams’ application, made pursuant to Rule 17(6) of the General Medical Council (Fitness to Practise Rules) 2004 as amended (‘the Rules’), that, the Allegation should be amended. The Tribunal’s full decision on the application is included at Annex A. 6. The Tribunal granted Dr Agabiti’s application, made pursuant to Rules 35 and 36 of the Rules that, the identity of two witnesses be withheld from the public. The Tribunal’s full decision on the application is included at Annex B. The Allegation and the Doctor’s Response

7. The Allegation made against Dr Agabiti is as follows:

1. In June 2015, you submitted a job application (‘the Application’) for the post

of Consultant Oncoplastic Breast Surgeon at Doncaster and Bassetlaw NHS

Foundation Trust (‘the Trust’). Admitted and found proved



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2. You answered ‘no’ on the Application when asked; ‘In your current or any

previous employment, have you had any restrictions placed on your clinical

practice as part of the revalidation process?’ Admitted and found proved

3. You answered ‘yes’ and provided examples on the Application when asked:

a. Do you wish to highlight any changes you’ve personally implemented in

the past 5 years?; Admitted and found proved

b. Do you wish to provide details of any research undertaken in the last 5

years?; Admitted and found proved

c. Do you wish to provide details of any publications in peer reviewed

journals?. Admitted and found proved

4. You stated on the Application that you had performed independently:

a. 226 breast and oncoplastic procedures in the last year 2014/2015;

Admitted and found proved as Amended under Rule 17(6)

b. 2000 breast and oncoplastic procedures in the last 10 years. Admitted

and found proved

5. The Application you submitted and the answers you gave, referred to in

paragraphs 1 to 4 above, contained information which:

a. was untrue; To be determined

b. you knew to be untrue. To be determined

6. In 2015, whilst your practice was subject to clinical restrictions, enforced by

Lincolnshire and Goole NHS Foundation Trust (‘the Restrictions’), you failed to

inform the:

a. interviewers at the Trust of the Restrictions; To be determined

b. Trust of the Restrictions, by omitting this information from the

Application. To be determined

7. Your actions as described at paragraphs 1 to 4 and 6 were:



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a. misleading; Withdrawn by GMC and Amended under Rule 17(6)

b. dishonest. To be determined

The Admitted Facts

8. At the outset of these proceedings, through his counsel, Dr Agabiti made

admissions to some paragraphs and sub-paragraphs of the Allegation, as set out

above, in accordance with Rule 17(2)(d) of the General Medical Council (GMC)

(Fitness to Practise) Rules 2004, as amended (‘the Rules’). In accordance with Rule

17(2)(e) of the Rules, the Tribunal announced these paragraphs and sub-paragraphs

of the Allegation as admitted and found proved.

The Facts to be Determined

9. In light of Dr Agabiti’s response to the Allegation made against him, the Tribunal is

required to determine whether or not the disputed allegations are found proved.

Factual Witness Evidence

10. The Tribunal received evidence on behalf of the GMC from the following

witnesses:

Mr C, Medical Director and Responsible Officer, Northern Lincolnshire and

Goole Hospitals NHS Foundation Trust, in person;

Ms D , Consultant Oncoplastic Breast Surgeon, Northern Lincolnshire and

Goole Hospitals NHS Foundation Trust in person;

11. The Tribunal determined that Mr C’s evidence was consistent and related to

the timeline of the events in question.

12. In relation to Ms D’s evidence, the Tribunal determined that her evidence was

clear, at times forthright, and on a number of points she appeared fixed in her

views.

13. Dr Agabiti provided his own witness statement dated 25 October 2017 and

also gave oral evidence at the hearing.



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14. The Tribunal determined that the evidence provided by Dr Agabiti was not

always directly in answer to the questions posed. It determined that there were

occasions when Dr Agabiti did not focus upon the issues being asked of him.

15. In addition, the Tribunal received evidence from the following witness on

Dr Agabiti’s behalf:

Mr A, by telephone link;

16. The Tribunal determined that the evidence of Mr A was straightforward and

clear. It related to Dr Agabiti’s work at NLaG.

17. The Tribunal also received evidence in the form of witness statements from

the following witnesses who were not called to give oral evidence:

Dr E, Medical Director and Responsible Officer at Kettering General Hospital

Foundation Trust;

Mr F , Oncoplastic Breast Surgeon, The Royal Marsden Hospital;

Mr H , Consultant in UGI and Laparoscopic Surgery, Hinchingbrooke Hospital;

Dr G , Retired Consultant in Genitourinary Medicine and HIV, Addenbrooke’s

Hospital.

Documentary Evidence

18. The Tribunal had regard to all the documentary evidence provided by the parties. This evidence included, but was not limited to the investigation reports, both job application forms submitted by Dr Agabiti at the relevant times, and several written testimonials on Dr Agabiti’s behalf including that of Ms B. The Tribunal’s Approach

19. In reaching its decision on the facts, the Tribunal has borne in mind the burden of proof rests on the GMC and it is for the GMC to prove the Allegations. Dr Agabiti does not need to prove anything at all. The fact that Dr Agabiti gave evidence does not mean he took any burden of proof upon himself. The standard of proof is that applicable to civil proceedings, namely the balance of probabilities, i.e. whether it is more likely than not the events occurred. 20. Regarding the allegation of dishonesty, the Tribunal has had regard to the guidance given by the Supreme Court at paragraph 74 its judgement in Ivey v Genting Casinos UK Ltd [2017] UKSC 67, as follows.



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21. Firstly, the Tribunal must first ascertain the actual state of the doctor’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence going to whether he held the belief. It is not an additional requirement that his belief must be reasonable. The question is whether it is genuinely held. 22. Secondly, once the doctor’s actual state of mind as to knowledge or belief as to the facts is established, the question whether his conduct was honest or dishonest is to be determined by applying the objective standards of ordinary decent people. 23. There is no requirement that the doctor must appreciate that what he has done is, by those standards, dishonest. 24. The Tribunal has borne in mind that Dr Agabiti is a man of good character, and that this is a relevant factor in its assessment of both the likelihood of him having behaved as alleged, and of his credibility. His good character is a matter for the Tribunal to consider in his favour, but it is for the Tribunal to decide what weight is given to it in the context of all the other evidence. The Tribunal’s Analysis of the Evidence and Findings

25. The Tribunal noted that the allegations made against Dr Agabiti do not relate

to his clinical practice.

26. The Tribunal has given separate consideration to each outstanding paragraph of the Allegation and has evaluated the evidence in order to make its findings on the facts. 27. The reasons are grouped together where the paragraphs of the Allegation are linked, in order to minimise repetition. 28. The Tribunal determined to consider paragraph 5 in relation to paragraphs 2-4 first and then consider paragraph 5 in relation to paragraph 1 in light of the manner in which the Allegation is drafted. Background of events 29. The Tribunal deemed it necessary at the outset of its consideration of the facts to examine the events which occurred prior to Dr Agabiti’s dismissal from the Diana Princess of Wales Hospital, Grimsby. 30. The Tribunal is aware that Dr Agabiti had practised as a surgeon since 2002 and had worked in a number of non-consultant posts and as a locum consultant breast surgeon.



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31. On 14 January 2013 Dr Agabiti was appointed as a Consultant in Breast and Oncoplastic Surgery at the Diana Princess of Wales Hospital, Grimsby, part of NLaG which was his first substantive consultant post. 32. Whilst working at the Diana Princess of Wales Hospital in July 2013 concerns were raised in relation to sentinel node biopsy procedures which Dr Agabiti had performed and were found not to contain lymph node tissue. Dr Agabiti subsequently visited Hull to refresh his performance on this procedure and he continued to perform the procedures without incident for a period of time. 33. In May 2014, further concerns were raised. On 9 June 2014, Dr Agabiti was informed that a temporary restriction was being placed on his surgical practice due to concerns that he was not dissecting sentinel lymph nodes with sufficient accuracy, and that an investigation would be undertaken. 34. Dr Agabiti attended an investigation meeting on 23 October 2014 and in the investigation report dated March 2015 the following recommendation was made:

‘Mr Agabiti’s practice in relation to sentinel node biopsy appears to be significantly different at times to that accepted by his peers. There are other concerns that may require assessment but these would be covered by a period of formalised supervision/ retraining. This will have to be formalised as he does not seem to have previously fully engaged with informal mediation measures. I would not recommend an immediate return to full duties.’

35. During the period of clinical practice restrictions Dr Agabiti continued to work as a consultant with duties in outpatient clinics. No complaints were made in respect of his clinic work. Dr Agabiti received a positive appraisal towards the end of 2015. 36. In or around the end of May 2015 Dr Agabiti submitted a job application for the post of Consultant Oncoplastic Breast Surgeon to the Trust. He was invited to interview in a letter dated 2 June 2015. 37. On 8 June 2015 Dr Agabiti was invited to attend a meeting with Mr C at which Dr Agabiti was informed that a remediation process was proposed in relation to his clinical practice restrictions and he would be notified of the details within a fortnight. Later that day, Dr Agabiti confirmed by email that he would attend an interview at Doncaster and Bassetlaw NHS Foundation Trust. 38. On 10 June 2015 Dr Agabiti attended an interview for the post of Consultant Oncoplastic Breast Surgeon at Doncaster and Bassetlaw NHS Foundation Trust. 39. On 14 June 2015, Ms D became aware through informal channels that Dr Agabiti had been interviewed at Doncaster and Bassetlaw NHS Foundation Trust on 10 June 2015. She was surprised that he had been interviewed whilst under



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restrictions and informed Mr C. On 17 June 2015 the Application form which Dr Agabiti had submitted to Doncaster and Bassetlaw NHS Foundation Trust was provided to Mr C and this Application was passed to Ms D in an email on 23 June 2015. On 24 June 2015 Ms D sent an email to Mr C commenting on the veracity of the Application form. Around this time Mr C decided that a second investigation should be undertaken into this issue. 40. Dr Agabiti submitted an application for the post of consultant breast surgeon to the United Lincolnshire Hospitals NHS Trust on 5 July 2015 in which Dr Agabiti had detailed that he was under temporary clinical practice restrictions. 41. On 30 March 2016 the second Trust investigation report was produced. At a Disciplinary Meeting on 10 June 2016 Dr Agabiti was summarily dismissed from Northern Lincolnshire and Goole Hospitals NHS Foundation Trust. 42. Dr Agabiti subsequently applied for, and was offered a job, as a Trust Grade Registrar at Kettering General Hospital which he commenced in November 2016. Paragraph 5a in relation to paragraph 2 43. The Tribunal considered the evidence provided in relation to the restrictions which were placed on Dr Agabiti’s clinical practice. It noted that those restrictions were not in fact part of his revalidation process, but were as a result of the decision made at NLaG about his clinical practice regarding sentinel node biopsies. On strict interpretation Dr Agabiti was truthful in answering ‘No’ on the application form when asked:

‘In your current or any previous employment, have you had any restrictions placed on your clinical practice as part of the revalidation process?’

44. As a result, on the balance of probabilities, the Tribunal has found paragraph 5a in relation to paragraph 2 not proved. Paragraph 5b in relation to paragraph 2 45. As a result of the findings made above at paragraph 5a in relation to paragraph 2, the Tribunal did not consider paragraph 5b in relation to paragraph 2. Paragraph 5a in relation to paragraph 3a 46. The Tribunal considered the evidence provided in relation to the audits. In particular, ‘Control of pain following breast surgery’ and ‘Audit on use of antibiotics in breast surgery’. Ms D said that she had led on the control of pain audit, and had no recollection of the antibiotics audit. The Tribunal noted the evidence that Dr Agabiti had personally been involved in at least two audits within the relevant



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time. The Tribunal took the view that Dr Agabiti did have personal involvement as part of the Multi-Disciplinary Team auditing and implementing change. The Tribunal therefore determined that it was reasonable and truthful for Dr Agabiti to answer ‘yes’ on the Application when asked:

‘Do you wish to highlight any changes you’ve personally implemented in the past 5 years?’

47. As a result, on the balance of probabilities, the Tribunal has found paragraph 5a in relation to paragraph 3a not proved. Paragraph 5b in relation to paragraph 3a 48. As a result of the findings made above at paragraph 5a in relation to paragraph 3a, the Tribunal did not consider paragraph 5b in relation to paragraph 3a. Paragraph 5a in relation to paragraph 3b 49. The Tribunal considered the evidence provided by Ms D who provided a detailed description of clinical research, and of the formal stages needed to be completed when such research is undertaken. 50. The Tribunal considered Dr Agabiti’s evidence of research undertaken entitled ‘Correlation between OSNA mRNA counts of sentinel nodes and metastatic axillary burden in patients with invasive breast cancer’ and ‘Molecular assessment of sentinel lymph nodes reports a higher node positive rate than formal histopathology’ . The Tribunal did not accept that the narrow interpretation of the formal stages required as described by Ms D are necessary for work to be categorised as research in the context of a job application. 51. The Tribunal accepted the evidence of Dr Agabiti that the documentary evidence he had provided of research undertaken can be understood to be research and therefore it was reasonable and truthful for him to answer ‘yes’ on the Application when asked:

‘Do you wish to provide details of any research undertaken in the last 5

years?’ 52. As a result, on the balance of probabilities, the Tribunal has found paragraph 5a in relation to paragraph 3b not proved.



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Paragraph 5b in relation to paragraph 3b 53. As a result of the findings made above at paragraph 5a in relation to paragraph 3b, the Tribunal did not consider paragraph 5b in relation to paragraph 3b. Paragraph 5a in relation to paragraph 3c 54. The Tribunal is aware that there is a distinction between formal major articles published in medical journals and published abstracts from conferences. 55. The Tribunal considered the documentary evidence provided, and decided that in the strict sense Dr Agabiti has provided examples of articles which have been published. These examples are: ‘OSNA mRNA copy number in sentinel lymph node biopsy predictive of further disease in the axilla? Cancer research Vol.72(24 Supplement) and ‘Comparison of sentinel lymph node positivity rates pre and post introduction of OSNA molecular analysis; Cancer research, Vol. 72(24 Supplement). 56. The Tribunal accepted the evidence of Dr Agabiti that the documentary evidence provided of publications co-authored by him confirms that he has been published in peer reviewed journals and therefore it was reasonable and truthful for Dr Agabiti to answer ‘yes’ on the Application when asked:

‘Do you wish to provide details of any publications in peer reviewed journals?’

57. As a result, on the balance of probabilities the Tribunal has found paragraph 5a in relation to paragraph 3c not proved. Paragraph 5b in relation to paragraph 3c 58. As a result of the findings made above at paragraph 5a in relation to paragraph 3c, the Tribunal did not consider paragraph 5b in relation to paragraph 3c. Paragraph 5a in relation to paragraph 4a 59. The Tribunal considered the contents of an email dated 30 May 2014 in which Dr Agabiti provides a summary of his 2013 surgical activity. This shows Dr Agabiti’s own estimate that from February 2013 to December 2013, he performed a total of 226 procedures on 134 patients. The Tribunal accepts that this is where his figure of 226, which he placed in the application form originated from, in responding to the question about how many breast and oncoplastic procedures he had performed independently in the last year.



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60. The Tribunal decided that Dr Agabiti’s answer to that question was not true. This is because he had been under clinical restrictions from June 2014, and had not performed any breast or oncoplastic procedures since then. 61. As a result, on the balance of probabilities the Tribunal has found paragraph 5a in relation to paragraph 4a proved. Paragraph 5b in relation to paragraph 4a 62. The Tribunal does not accept that when Dr Agabiti completed the Application form in June 2015 he was unaware that he had not completed any breast surgeries in the previous 12 month period, and therefore it was not reasonable or truthful for Dr Agabiti to state in the Application form that he had performed independently 226 breast and oncoplastic procedures in the last year. 63. Accordingly, on the balance of probabilities, the Tribunal has found paragraphs 5b in relation to paragraph 4a proved. Paragraph 5a in relation to paragraph 4b 64. No cogent evidence has been provided to show that Dr Agabiti has not performed 2000 breast and oncoplastic procedures in the last ten years. The Tribunal has therefore determined that insufficient evidence has been provided by the GMC in relation to this paragraph and as a result the burden of proof has not been discharged. 65. Accordingly, on the balance of probabilities the Tribunal has found paragraph 5a in relation to paragraph 4b not proved. Paragraph 5b in relation to paragraph 4b 66. As a result of the findings made above at paragraph 5a in relation to paragraph 4b the Tribunal did not consider paragraph 5b in relation to paragraph 4b. Paragraph 5a in relation to paragraph 1 Paragraph 5b in relation to paragraph 1 67. As a result of the findings made for paragraph 5 in relation to paragraph 4a the Tribunal has determined that paragraphs 5a and 5b in relation to paragraph 1 have been found proved.



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Paragraph 6a 68. At the outset of the Tribunal’s consideration of paragraph 6 it noted paragraphs 65, 66, 68 and 71 of Good Medical Practice (2013 edition) which state:

‘65. You must make sure that your conduct justifies your patients’ trust in you

and the public’s trust in the profession.

66. You must always be honest about your experience, qualifications and

current role.

68. You must be honest and trustworthy in all your communication with patients and colleagues. This means you must make clear the limits of your knowledge and make reasonable checks to make sure any information you give is accurate.

71. You must be honest and trustworthy when writing reports, and when

completing or signing forms, reports and other documents.22 You must make

sure that any documents you write or sign are not false or misleading.

a. You must take reasonable steps to check the information is correct.

b. You must not deliberately leave out relevant information.’

69. The Tribunal noted the contents of the NLaG investigation report dated 30 March 2016 in which it was accepted that the evidence from the consultant who had been present at the interview was:

‘Mr C made it clear that Mr Agabiti had made no disclosure either via application form or during the interview with regards to any restrictions in practice and had given him the impression that he (Mr Agabiti) was fully up to date and functioning within his current Oncoplastic role and that breast reductions and implant work was ongoing.’

70. The Tribunal has also been provided with the handwritten notes taken at the interview on 10 June 2015 in which no mention is made of Dr Agabiti being subject to any clinical practice restrictions at that time. The Tribunal is of the view that at the outset or conclusion of the interview Dr Agabiti would have had the opportunity to inform the interviewers of the practice restrictions he was subject to at that time but that he failed to do so. 71. The Tribunal considered carefully Dr Agabiti’s evidence regarding what happened at the interview. However, the Tribunal does not find it credible that if he had mentioned the restrictions this would have been omitted from the interview notes, or that the consultant interviewing him would have been left with the impression described above. Therefore, the Tribunal does not accept in its entirety Dr Agabiti’s account of the interview.



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72. Accordingly, on the balance of probabilities, the Tribunal has found paragraph 6a proved. Paragraph 6b 73. The Tribunal noted in the defence written submissions on facts at paragraph 13 it states: ‘It is accepted that the Doncaster application does not make reference to his restriction.’ 74. As a result of the concession made on behalf of Dr Agabiti, the Tribunal has found paragraph 6b proved. Paragraph 7

75. The Tribunal considered that providing a correct number of breast and oncoplastic procedures in the last year would be highly relevant information for a potential employer, and that Dr Agabiti would have known that. It would also be highly relevant that he was subject to clinical restrictions on his practice, and that Dr Agabiti would have known that. The Tribunal decided that these considerations would have been at the forefront of Dr Agabiti’s mind at the time of application and that there were opportunities in both the application form and at the interview to volunteer this information. 76. The Tribunal decided that by providing important information that was untrue, and by failing to provide important information that was true, Dr Agabiti had chosen to intentionally mislead those involved at the Trust in the application and interview process. He was, in effect, presenting himself as someone he was not in order to put himself in a better position to get the job he had applied for. 77. The Tribunal notes that Dr Agabiti did mention the clinical restrictions when he made his subsequent application one month later. However, the Tribunal decided that this was because the application form posed different questions. It also noted this application was made a number of weeks after the application relating to these allegations and did not necessarily reflect his state of mind at the time of the allegations. 78. Having considered all the evidence, the Tribunal has determined that Dr Agabiti’s acts and omissions would be regarded as dishonest by the standards of reasonable and honest people. 79. Accordingly, the Tribunal has found paragraph 7 in relation to paragraphs 1, 4a, 6a and 6b proved. It has found paragraph 7 in relation to paragraphs 2, 3 in its entirely and 4b not proved.



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The Tribunal’s Overall Determination on the Facts

80. The Tribunal has determined the facts as follows:

1. In June 2015, you submitted a job application (‘the Application’) for the post

of Consultant Oncoplastic Breast Surgeon at Doncaster and Bassetlaw NHS

Foundation Trust (‘the Trust’). Admitted and found proved

2. You answered ‘no’ on the Application when asked; ‘In your current or any

previous employment, have you had any restrictions placed on your clinical

practice as part of the revalidation process?’ Admitted and found proved

3. You answered ‘yes’ and provided examples on the Application when asked:

a. Do you wish to highlight any changes you’ve personally implemented in

the past 5 years?; Admitted and found proved

b. Do you wish to provide details of any research undertaken in the last 5

years?; Admitted and found proved

c. Do you wish to provide details of any publications in peer reviewed

journals?. Admitted and found proved

4. You stated on the Application that you had performed independently:

a. 226 breast and oncoplastic procedures in the last year 2014/2015;

Admitted and found proved as Amended under Rule 17(6)

b. 2000 breast and oncoplastic procedures in the last 10 years. Admitted

and found proved

5. The Application you submitted and the answers you gave, referred to in

paragraphs 1 to 4 above, contained information which:

a. was untrue; Disputed and found proved in relation to paragraph

1 and 4a

Found not proved in relation to paragraphs 2, 3 in its entirety and 4b

b. you knew to be untrue. Disputed and found proved in relation to

paragraph 1 and 4a



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Found not proved in relation to paragraphs 2, 3 in its entirety and 4b

6. In 2015, whilst your practice was subject to clinical restrictions, enforced by

Lincolnshire and Goole NHS Foundation Trust (‘the Restrictions’), you failed to

inform the:

a. interviewers at the Trust of the Restrictions; Disputed and found

proved

b. Trust of the Restrictions, by omitting this information from the

Application. Disputed and found proved

7. Your actions as described at paragraphs 1 to 4 and 6 were:

a. misleading; Withdrawn by GMC and Amended under Rule 17(6)

b. dishonest. Disputed and found proved in relation to paragraphs 1, 4a, 6a and 6b Found not proved in relation to paragraphs 2, 3 in its entirety and 4b

Determination on Impairment - 08/12/2017 1. At the outset of this hearing it was agreed for certain parts of this case to be heard in private pursuant to Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 (“the Rules”). The Tribunal has therefore determined that the press and public be excluded from those parts of the hearing relating to confidential matters. This determination will be read in private. However, as this case does concern Dr Agabiti’s alleged misconduct, a redacted version will be published at the close of the hearing with those confidential matters having been removed. 2. The Tribunal now has to decide in accordance with Rule 17(2)(l)) of the Rules whether, on the basis of the facts which it has found proved as set out before, Dr Agabiti’s fitness to practise is impaired by reason of his alleged misconduct. The Evidence

3. The Tribunal has taken into account all the evidence received during the facts stage of the hearing, both oral and documentary. 4. The Tribunal received no further evidence from the GMC.



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5. The Tribunal also received in support of Dr Agabiti, testimonials from colleagues and employers, all of which we have read. Submissions

6. On behalf of the GMC, Mr Williams submitted that given the findings of dishonesty found proved at the facts stage, this amounts to serious misconduct and that Dr Agabiti’s fitness to practise is currently impaired as a result. He submitted that probity goes to the heart of the medical profession and that Dr Agabiti had breached the following tenets of Good Medical Practice (2013 edition)(GMP): paragraphs 65, 66, 68 and 71. The misconduct, he submitted, had the ability to undermine public confidence in the profession. 7. Mr Williams submitted, by reference to the Sanctions Guidance, that dishonesty by its very nature is difficult to remediate, and that there is a risk of repetition given the total lack of insight into his actions. 8. Mr Williams submitted that Dr Agabiti’s actions were a course of conduct which could bring the profession into disrepute, and that a member of the public would expect a doctor to complete a job application form honestly and accurately. He submitted that the risks flowing from Dr Agabiti putting himself forward with a degree of exaggeration were that he might be employed in a position he was not suited to, causing potential risk to patients. He also submitted that the findings of fact indicated that Dr Agabiti’s conduct fell far below the standard to be expected of a registered practitioner and that it is open to the Tribunal to find misconduct and that Dr Agabiti’s fitness to practise is currently impaired. 9. Mr Magee submitted on behalf of Dr Agabiti that his fitness to practise is not currently impaired. He drew the Tribunal’s attention to the positive testimonial evidence submitted on Dr Agabiti’s behalf. He submitted that there has been no criticism of Dr Agabiti’s competence. 10. Mr Magee drew the Tribunal’s attention to the evidence of Dr Agabiti’s Responsible Officer and also his Clinical Lead in his current role at Kettering who speak of his openness, transparency and honesty, and his adherence to all restrictions upon him. He pointed to the fact that Dr Agabiti had been open and honest during the NLaG investigations, and in making the application to Boston. 11. Mr Magee submitted that the misconduct was neither persistent nor covered up. It was limited in scope and time, and occurred in extreme extenuating circumstances. He had shown insight and begun remediation demonstrated by the way in which he completed the second application. This was before he was aware of the issue with the first application. He submitted that the GMC accept that the misconduct was limited to the one application, and limited in time. The dishonesty, he said, was at the lower end of the spectrum of offences of dishonesty.



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12. Mr Magee emphasised that this was an isolated incident, without repetition. It amounted to an aberration in an otherwise entirely blameless and honest career. 13. Mr Magee submitted that there is sufficient evidence to conclude that Dr Agabiti’s fitness to practise is not currently impaired. The Relevant Legal Principles

14. The Tribunal reminded itself that at this stage of proceedings, there is no burden or standard of proof and the decision on impairment is a matter for the Tribunal’s judgment alone. 15. In approaching the decision, the Tribunal was mindful that consideration of impairment by serious misconduct involves a two-stage process; first, to consider whether or not the findings of fact, or any of them, amount to serious misconduct on the part of the doctor and then, if so, secondly, to consider whether or not the doctor’s fitness to practise is currently impaired by reason of that serious misconduct. These are two distinct questions. 16. The Tribunal reminded itself that misconduct might involve an act or acts which fall short of the rules and standards ordinarily required to be followed, in this case set out in Good Medical Practice (2013). 17. The Tribunal’s task is to determine whether Dr Agabiti’s fitness to practise is impaired today looking forward to the future, taking into account his dishonest conduct in relation to the application form he submitted to the Doncaster and Bassetlaw NHS Foundation Trust, together with any relevant evidence of subsequent events, including evidence which might show insight and/or remediation and any likelihood of repetition. 18. The Tribunal has been mindful of the overarching objective of the GMC set out in section 1 of the Medical Act 1983 (as amended) to:

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

b. Promote and maintain public confidence in the medical profession, and c. Promote and maintain proper professional standards and conduct for

members of that profession.



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The Tribunal’s Determination on Impairment

Misconduct

19. At the outset of the Tribunal’s consideration of misconduct it noted paragraphs 65, 66, 68 and 71 of Good Medical Practice (2013 edition) which state:

‘65. You must make sure that your conduct justifies your patients’ trust in you

and the public’s trust in the profession.


current role.



completing or signing forms, reports and other documents. You must make



b. You must not deliberately leave out relevant information.’

20. The Tribunal has provided a detailed determination on facts and has taken this into account. In summary, the Tribunal has found proved that Dr Agabiti stated on the application form that he had performed independently 226 breast and oncoplastic procedures in the year prior to submitting the form around the end of May 2015, which was untrue and he knew to be untrue.

21. It has found proved that in 2015, whilst Dr Agabiti’s practice was subject to clinical restrictions, enforced by NLaG, Dr Agabiti failed to inform the interviewers at the Trust of the restrictions, and also omitted this information from the application form. 22. Dr Agabiti’s actions in relation to the completion of the application form were found to be dishonest. 23. In the Tribunal’s view, Dr Agabiti breached the principles of probity contained within GMP as outlined above. He behaved dishonestly in the completion of the application form. Looking at Dr Agabiti’s misconduct in isolation meant that he could have found himself in a position where he may not have been able to carry out the procedures expected of him, with potential risk to patients. Dr Agabiti’s actions could also have resulted in another practitioner not being appointed to a role to



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which they may have been more entitled. The Tribunal was in no doubt that this falls short of the standards of conduct that the public and patients are entitled to expect from all registered medical practitioners and amounts to serious misconduct. 24. The Tribunal having found that the facts found proved amounted to serious misconduct went on to consider whether, as a result of that, Dr Agabiti’s fitness to practise is currently impaired. Impairment

25. The issue of impairment is one for the Tribunal to determine exercising its own judgment. The Tribunal has taken into account the public interest which includes the need to protect patients and the public, to maintain public confidence in the profession, and to declare and uphold proper standards of conduct and behaviour. The Tribunal has also considered whether Dr Agabiti has demonstrated insight into his behaviour, remediation, and the risk of repetition of his misconduct.

26. The Tribunal decided that Dr Agabiti’s conduct should be considered as a single, isolated incident of misconduct rather than a persistent course of action. The Tribunal accepted that it occurred when Dr Agabiti found himself in exceptional circumstances. This was because: he had been unable to practise his surgical skills for 12 months notwithstanding concerns being raised in only a limited area of his surgical practice; he was subject to an investigation process which has been conceded by his Medical Director, Mr C, to have taken an extraordinarily long time; he had not been kept regularly up to date about the progress of the investigation resulting in him feeling isolated and victimised; and, he was in a pressurised and stressful working environment at the relevant time. All of these circumstances, taken together amounted to an exceptional situation.

27. Although the Tribunal has determined that Dr Agabiti was dishonest in making his application to the Trust, it also considered his honest approach to the subsequent application to Boston and his previous open approach to his development needs when starting his role at NLaG. These factors led the Tribunal to conclude that Dr Agabiti was highly unlikely to have taken up any post offered without disclosing the restrictions under which he had been placed. For these reasons, the Tribunal accepted that the scope of Dr Agabiti’s misconduct was limited in scope and time.

28. The Tribunal decided that Dr Agabiti’s approach to both the Boston application and to his current post at Kettering demonstrated both insight and remediation. In particular, the Tribunal noted the evidence of Dr E, who is the Medical Director and Responsible Officer at the Kettering General Hospital Foundation Trust where Dr Agabiti has worked since November 2016. He states:



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‘… I was aware of Dr Agabiti’s issues with the GMC from the beginning as he was, and has continued to be, completely transparent in relation to those concerns’

29. The Tribunal also noted that Dr Agabiti’s Clinical Lead at Kettering General Hospital Foundation Trust states:

‘Overall, he continues to show his honesty at work and trying his best to help the patients at his best ability.’ (sic)

30. In his evidence to the Tribunal, Dr Agabiti apologised for his actions on numerous occasions and conceded that these were misleading.

31. The Tribunal took into account that the GMC have raised no criticisms of Dr Agabiti’s competence. The Tribunal accepted that Dr Agabiti is of good character.

32. In addition, the Tribunal noted that there is a large number of testimonials. These are from a wide range of people who have known Dr Agabiti at various stages during his career. These cover the full period of his career and include a range of professional colleagues, from students to consultants. They attest to his honesty and probity both before and after the misconduct.

33. Taking all these factors into consideration, the Tribunal decided that the risk of repetition of Dr Agabiti’s misconduct is low.

34. The Tribunal then went on to consider whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment was not made. It took into account the nature of the misconduct, Dr Agabiti’s insight, and remediation and risk to the public. It also took into account that the events in question occurred in 2015. The Tribunal decided that, because of these factors, a finding of impairment is not required in the public interest.

35. The Tribunal has therefore determined that Dr Agabiti’s fitness to practise is not impaired. Determination on Warning - 11/12/2017 1. At the outset of this hearing it was agreed for certain parts of this case to be heard in private pursuant to Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 (“the Rules”). The Tribunal has therefore determined that the press and public be excluded from those parts of the hearing relating to confidential matters. This determination will be read in private. However, as this case does concern Dr Agabiti’s alleged misconduct, a redacted version will be published at the close of the hearing with those confidential matters having been removed.



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2. As the Tribunal determined that Dr Agabiti’s fitness to practise was not impaired it considered whether in accordance with s35D(3) of the 1983 Act, a warning was required. Submissions

3. On behalf of the GMC, Mr Williams submitted that a warning is appropriate and proportionate in Dr Agabiti’s case, given the finding of dishonesty made by the Tribunal. He drew the Tribunal’s attention to the GMC’s ‘Guidance on warnings’ (September 2017) (the Guidance) and in particular paragraphs 16, 17, 19, 20, 25 and 30. 4. He submitted that the imposition of a warning is required in this case, that it would not be disproportionate, would demonstrate to a member of the public that such behaviour is unacceptable, and uphold maintenance of proper professional standards and conduct for the members of the profession. He further submitted that it would be a useful reminder to Dr Agabiti if he was to find himself in a similar situation in the future. 5. Mr Magee, on behalf of Dr Agabiti, also drew the Tribunal’s attention to the Guidance and in particular paragraphs 24, 26, 27, 28, and 30. He referred to the fact that more than two years have elapsed since Dr Agabiti’s misconduct occurred, that he is of previous good character, that Dr Agabiti’s actions immediately after the matter showed insight and remediation, and that his actions do not need to be pointed out to him as he is already aware of their significance. 6. Mr Magee submitted that the Tribunal can conclude that a warning is neither necessary nor proportionate. He submitted that in these unusual circumstances a warning would serve no purpose and could have a further damaging effect on Dr Agabiti’s ability to rebuild his career, and move on. The Tribunal’s Determination on Warning

7. The Tribunal considered the Guidance, and found of particular relevance paragraphs 16, 19, 20, 24, 25 and 33 which state:

‘16 A warning will be appropriate if there is evidence to suggest that the practitioner’s behaviour or performance has fallen below the standard expected to a degree warranting a formal response by the GMC or by a MPTS tribunal. A warning will therefore be appropriate in the following circumstances:

There has been a significant departure from Good medical practice…



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19 Once the decision makers are satisfied that the doctor’s fitness to practise is not impaired, they will need to consider whether the concerns raised are sufficiently serious to require a formal response from the GMC or MPTS tribunals, by way of a warning. When doing so the decision makers must have regard to the public interest (See paragraph 10 above.) 20 The decision makers should take account of the following factors to determine whether it is appropriate to issue a warning:

a There has been a clear and specific breach of Good medical practice…

b The particular conduct, behaviour or performance approaches, but falls short of, the threshold for the realistic prospect test or in a case before a tribunal, that the doctor’s fitness to practise has not been found to be impaired.

c A warning will be appropriate when the concerns are sufficiently serious that, if there were a repetition, they would likely result in a finding of impaired fitness to practise. Warnings may be an appropriate response to any type of allegation…the decision makers will need to consider the degree to which the conduct, behaviour or performance could affect patient care, public confidence in the profession or the reputation of the profession… d There is a need to record formally the particular concerns (because additional action may be required in the event of any repetition).

24 There is a presumption that the GMC should take some action when the allegations concern dishonesty. There are, however, cases alleging dishonesty that are not related to the doctor’s professional practice and which are so minor in nature that taking action on the doctor’s registration would be disproportionate. A warning is likely to be appropriate in these cases. An example of this might include, in the absence of any other concerns, a failure to pay for a ticket covering all or part of a journey on public transport. 25 In deciding whether to issue a warning the decision maker should apply the principle of proportionality, weighing the interests of the public with those of the practitioner. It is important to bear in mind, of course, that warnings do not restrict the practitioner’s practice and should only be considered once the decision maker is satisfied that the doctor’s fitness to practise is not impaired.



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33 …if the decision makers are satisfied that the doctor’s fitness to practise is not impaired or that the realistic prospect test is not met, they can take account of a range of aggravating or mitigating factors to determine whether a warning is appropriate. These might include:

the level of insight into the failings.

a A genuine expression of regret/apology. b Previous good history.

c Whether the incident was isolated or whether there has been any repetition. d Any indicators as to the likelihood of the concerns being repeated. e Any rehabilitative/corrective steps taken. f Relevant and appropriate references and testimonials.’

Tribunal decision 8. In making its decision as to whether a warning would be appropriate in the circumstances of Dr Agabiti’s case, the Tribunal has had regard to the guidance. Throughout its deliberations the Tribunal has applied the principle of proportionality, weighing the interests of the public with Dr Agabiti’s interests. The public interest includes the health, safety and wellbeing of the public, the maintenance of public confidence in the medical profession and the maintenance of proper professional standards and conduct for the members of the profession. 9. The Tribunal has previously found that Dr Agabiti’s conduct departed from key principles in Good medical practice relating to probity and it was satisfied that it was sufficient as to amount to serious misconduct. 10. The Tribunal notes that the finding of dishonesty related to Dr Agabiti’s relationship with professional colleagues and indirectly to his clinical practice. 11. The Tribunal accepts that Dr Agabiti has undergone reflection and remediation and that all of the mitigating factors set out in paragraph 33 of the guidance are present in his case. This was reflected in its decision that his fitness to practise is not currently impaired. However, the Tribunal is of the opinion that the public interest, in particular the maintenance of public confidence in the profession and the maintenance of proper standards and conduct for members of the profession, is particularly relevant in Dr Agabiti’s case. 12. The Tribunal determined that it is appropriate to indicate to Dr Agabiti, and the profession, that doctors must be honest and trustworthy at all times and that the principles set out in Good medical practice should be followed. The Tribunal considered



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that public confidence in the profession would be undermined if a warning were not issued. 13. The Tribunal therefore imposes the following warning on Dr Agabiti’s registration:

‘Dr Agabiti In June 2015, you submitted a job application for the post of Consultant Oncoplastic Breast Surgeon at Doncaster and Bassetlaw NHS Foundation Trust in which you submitted untrue information and you failed to declare relevant clinical restrictions both on the application form, and at a subsequent interview. These actions were found to be dishonest.

This conduct does not meet with the standards required of a doctor. It risks bringing the profession into disrepute and it must not be repeated. The required standards are set out in Good medical practice (April 2013) at paragraphs 65, 66, 68 and 71 which state:

65. You must make sure that your conduct justifies your patients’ trust in

you and the public’s trust in the profession.


current role.



completing or signing forms, reports and other documents. You must make



b. You must not deliberately leave out relevant information.’ Whilst this failing in itself is not so serious as to require any restriction on your registration, it is necessary in response to issue this formal warning.

This warning will be published on the List of Registered Medical Practitioners (LRMP) for a period of five years and will be disclosed to any person enquiring about your fitness to practise history. After five years, the warning will cease to be published on the LRMP. However, it will be kept on record and disclosed to employers on request.’



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14. The interim order of conditions currently imposed on Dr Agabiti’s registration is hereby revoked. 15. That concludes this case. Confirmed Date 11 December 2017 Mr Colin Chapman, Chair



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ANNEX A – 04/12/2017

Application to amend the Allegation

1. On the first day of the hearing Mr Williams made an application, under Rule 17(6) of the Rules, to amend the wording of paragraphs 4 and 7 of the Allegation. 2. Mr Williams applied to amend paragraph 4 as follows:

‘226 breast and oncoplastic procedures 2014/2015’

be amended to read:

‘226 breast and oncoplastic procedures in the last year 2014/2015;

3. Mr Williams applied to amend paragraph 7 as follows:

‘Your actions as described at paragraphs 1 to 4 and 6 were:

b. misleading;

b. dishonest’

be amended to read:

‘Your actions as described at paragraphs 1 to 4 and 6 were:

a. misleading;

b. dishonest’

4. Mr Williams submitted that the amendment at paragraphs 4 and 7 could be made without injustice to Dr Agabiti. 5. Mr Magee, on behalf of Dr Agabiti did not oppose the application to amend the Allegation in the proposed form.

6. The Tribunal noted Rule 17(6) which states:

‘Where, at any time, it appears to the Medical Practitioners Tribunal that—



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(a) the allegation or the facts upon which it is based and of which

the practitioner has been notified under rule 15, should be amended;

and

(b) the amendment can be made without injustice,

it may, after hearing the parties, amend the allegation in appropriate terms’

7. The Tribunal considered the fairness to these proceedings in making the amendments. The Tribunal accepted the submissions made by both Counsel and determined that it was in the interests of justice that the application be granted. 8. The Tribunal therefore determined to grant the application under Rule 17(6) of the Rules.

ANNEX B – 04/12/2017

Application for witness identities to be withheld from public (PRIVATE)

1. On day 1 of the hearing Mr Magee, Counsel, on Dr Agabiti’s behalf submitted that the press and public be excluded from the preliminary matters in the proceedings, pursuant to Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 (“the Rules”). Mr Williams, Counsel, on behalf of the GMC supported this application. The Tribunal acceded to this application on the basis that the particular sensitive circumstances of the application outweigh the public interest in holding the hearing in public. This determination, will, therefore, be read in private. However, as this case concerns Dr Agabiti’s misconduct a redacted version will be published at the close of the hearing. 2. Mr Magee made an application under the provisions of Rule 35(4) and Rule 36 of the Fitness to Practise Rules Order of Council 2004 for the following witness identities not be revealed in public:

Mr A, Ms B.

3. He submitted that both witnesses have provided witness statements and confirmed that they wish to give evidence on behalf of Dr Agabiti, but wish their identities to remain confidential. XXX XXX



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5. Mr Williams submitted the application made by Mr Magee on Dr Agabiti’s behalf is misguided. XXX Consequently, he submitted that the application should be refused. Tribunal Decision 6. In reaching its decision the Tribunal had regard to Rule 35(4) and Rule 36. 7. Rule 35(4) states:

“The Committee or Tribunal may, upon the application of a party, agree that the identity of a witness should not be revealed in public.”

8. Rule 36 states:

“(1) In proceedings before the Committee or a Tribunal, the following may, if the quality of their evidence is likely to be adversely affected as a result, be treated as a vulnerable witness- … (f) any witness who complains of intimidation. (2) Upon hearing representations from the parties, the Committee or Tribunal shall adopt such measures as it considers desirable to enable it to receive evidence from a vulnerable witness. (3) Measures adopted by the Committee or Tribunal may include, but shall not be limited to- … (d) use of screens or such other measures as the Committee or Tribunal consider necessary in the circumstances, in order to prevent-

(i) the identity of the witness being revealed to the press or the general public;…

(e) the hearing of evidence by the Committee or Tribunal in private…”

9. The Tribunal considered matters under Rule 36 and noted the documentary evidence provided which included emails from Mr A XXX and from Ms B XXX. XXX 13. The Tribunal therefore acceded to the application made for Mr A and Ms B to be treated as vulnerable witnesses, that their identities will not be made public and any evidence they provide will be given in private session.

Documents

PUBLIC RECORD - mpts-uk.org · Whilst working at the Diana Princess of Wales Hospital in July 2013 concerns were raised in relation to sentinel node biopsy procedures which Dr Agabiti