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Record of Determinations –

Medical Practitioners Tribunal

MPT: Dr XENAKIS

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PUBLIC RECORD Dates: 31/07/2017 – 09/08/2017 Medical Practitioner’s name: Dr Xenofon Konstantinos XENAKIS GMC reference number: 7441322

Primary medical qualification: Doctor-Medic 1982 Institute of Medicine

and Pharmacy Bucharest

Type of case Outcome on impairment New - Misconduct New - Language impairment

Impaired Impaired

Summary of outcome Conditions, 18 months. Review hearing directed Immediate order imposed

Tribunal:

Legally Qualified Chair Mrs Claire Sharp

Lay Tribunal Member: Ms Jacqueline Telfer

Medical Tribunal Member: Dr Leigh-Anne Hill

Tribunal Clerk: Ms Esther Morton

Attendance and Representation:

Medical Practitioner: Present and not represented

GMC Representative: Mr Fraser Coxhill, Counsel

Allegation and Findings of Fact That being registered under the Medical Act 1983 (as amended):

Patient A 1. On 28 April 2014 you undertook a Cholecystectomy procedure on Patient A. Admitted and found proved 2. In respect of the procedure mentioned at 1 above, you failed to:



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a. undertake an adequate pre-operative assessment of Patient A; Admitted and found proved

b. discuss Patient A’s case with a colleague who was an experienced biliary surgeon before commencing the procedure; Admitted and found proved

c. ensure that you had appropriate equipment available before commencing the procedure; Admitted and found proved

d. ensure that you had appropriate surgical assistance available before commencing the procedure; Admitted and found proved

e. seek assistance during the procedure from an appropriately qualified colleague when it was appropriate to do so; Found proved

f. appreciate the potential seriousness of a divided bile duct and damaged right hepatic artery; Found proved

g. seek assistance when it was suggested by Dr B; Found proved

h. convert to an open operation when it was appropriate to do so. Found proved

3. During the procedure mentioned at 1 above you placed surgical clips around Patient A’s porta when it was inappropriate to do so. Admitted and found proved Patient C 4. On 20 April 2014, during an operation on Patient C, you failed to exteriorise the distal end of the bowel to fashion a mucous fistula when it was appropriate to do so. Found proved Patient D 5. On 25 April 2014 you held a consultation with Patient D and you failed to:

a. make any note of the consultation; Admitted and found proved

b. dictate or draft any clinic letter; Admitted and found proved c. institute any investigations and/or management of Patient D. Admitted

and found proved



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Patient E 6. On a date between 14 and 28 April 2014, you held a consultation with Patient E and you failed to:


b. dictate or draft any clinic letter; Admitted and found proved c. institute any investigations and/or management of Patient E. Admitted

and found proved Patient F 7. On 25 April 2014 you held a consultation with Patient F and you failed to:


b. dictate or draft any clinic letter; Admitted and found proved c. institute any investigations and/or management of Patient F. Admitted

and found proved English Language 8. On 27 June 2015 8 July 2017 you undertook a further assessment of your knowledge of the English language using the academic version of the IELTS test in respect of which:

a. you achieved the following scores in the following testing areas:

i. listening - 6.0 6.5; Amended in accordance with Rule 17(6) Admitted and found proved ii. reading - 6.0 6.5; Amended in accordance with Rule 17(6) Admitted and found proved iii. writing - 6.5 6.0. Amended in accordance with Rule 17(6) Admitted and found proved

b. these scores were each below the minimum scores acceptable to demonstrate the necessary knowledge of English; Admitted and found proved

c. your overall score was 6.5, which is less than the minimum overall required score of 7.5. Admitted and found proved



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Interim Order 9. On 30 September 2015, you commenced work as a locum Consultant Breast Surgeon at the University Hospitals of Morecambe Bay NHS Foundation Trust (‘the Trust’). Admitted and found proved 10. You failed to inform the Trust and/or your immediate line manager that your registration was subject to an interim order of conditions at least 24 hours before starting work in breach of the conditions imposed by the Interim Orders Tribunal between 17 June 2014 and 29 October 2015. Admitted and found proved And that by reason of the matters set out above your fitness to practise is impaired because of your:

a. misconduct, in respect of paragraphs 1-7 & 10.

b. not having the necessary knowledge of English, in respect of paragraph 8. Attendance of Press / Public The hearing was all heard in public. Determination on Facts - 07/08/2017 Dr Xenakis: Preliminary Matters 1. At the outset of the hearing the Tribunal was invited to consider a number of preliminary matters, as set out below. Potential Conflict of Interest 2. Prior to your case being formally opened Mrs Jacqueline Telfer, Lay Tribunal Member, disclosed that she was a non-executive board member at The University Hospitals of Morecambe Bay NHS Foundation Trust (‘UHMB’). She informed parties that Mr G sat as a member of the board of UHMB two years ago, and that she knew him in a professional capacity at that time. Mr G has provided a witness statement for the GMC, but he is not being called as a witness, and his evidence is not being challenged by you. Mrs Telfer confirmed that she did not believe herself to be biased by reason of her past working relationship with Mr G, or her role at UHMB.



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3. Mr Fraser Coxhill, Counsel, on behalf of the GMC, invited the Tribunal to consider whether a reasonable and well-informed observer would consider there to be a real possibility of bias. He further invited the Tribunal to consider whether you had understood the potential conflict of interest. He submitted that, if you had understood, and if you had no objection, then the GMC would not seek a recusal. 4. You submitted that you were content for Mrs Telfer to continue on the Tribunal. 5. The Tribunal heard the advice of the Legally Qualified Chair, and it was content that Mrs Telfer did not have any actual bias. It next considered the issue of apparent bias; in so doing it had regard to the case of Porter v Magill [2002] 2 AC 357, where Lord Hope set out that, when considering bias:

‘The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased’.

6. The Tribunal bore in mind that Mr G was a member of the board at UHMB two years ago, and that – although he has provided a witness statement at this hearing – his evidence is not being challenged. Mrs Telfer, although connected with UHMB, is not an employee of UHMB, and has no prior connection with (or knowledge of) your case. In these circumstances, the Tribunal was satisfied that a reasonable and well-informed observer would not conclude that there was any real possibility of bias, and it therefore determined that it was not necessary for Mrs Telfer to recuse herself. Translator 7. Mr Coxhill invited the Tribunal to consider whether you are sufficiently proficient in English to understand these proceedings. He submitted that you have failed a recent International English Language Testing System (‘IELTS’) examination, and that, in order for you to provide a fair account of your actions at this hearing, it may be appropriate for you to be provided with a translator. 8. You informed the Tribunal that you felt able to express yourself, but added that you may not understand all legal terminology. You confirmed to the Tribunal that you did not feel you needed an interpreter, and stated that you would ask for explanation if and when needed. 9. In reaching its decision the Tribunal bore in mind that you have failed a recent IELTS examination, but also bore in mind that the IELTS threshold for doctors is high. It considered that failing an IELTS examination for the purposes of UK medical practice does not necessarily mean that you cannot speak English or take part in this hearing. By this point, you have addressed this Tribunal clearly on a



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number of points, and have answered questions in a relevant and sensible way; on this basis, the Tribunal was satisfied that you do appear to understand these proceedings. 10. The Tribunal was therefore content to proceed without an interpreter on the basis that you appear to understand proceedings, and on the basis that you have not requested one. However, it bore in mind the importance of you receiving a fair hearing, and if it later becomes clear that you would be assisted by an interpreter then it will reconsider this decision. Legal Support 11. Whilst you confirmed that you did not believe you required an interpreter, you submitted that it was unfair that you had not been provided with legal support. You described yourself as ‘totally ignorant’ in legal matters, and likened the GMC to a ‘giant’ with ‘total legal support’. You stated that this balance was unequal and therefore unfair. 12. The Legally Qualified Chair informed you that the MPTS could not provide you with legal representation, but explained that it was her role to ensure that you understood these proceedings and the legal principles underpinning them. She explained that she would speak slowly, check your understanding, and ensure legal jargon was not used. However, she also explained that it was open to you to request an adjournment, should you wish to obtain legal representation. 13. You submitted that you did not wish to seek an adjournment, and that you were content to proceed without legal support. Attendance of XXX 14. You asked the Tribunal whether XXX could attend XXX; Mr Coxhill did not object to this. The Legally Qualified Chair explained that XXX could attend to support you and noted that this was a public hearing. However, she explained that if you wished XXX to make representations on your behalf, you would have to make a formal application. You did not make such an application. Application to amend the allegation 15. Mr Coxhill invited the Tribunal to amend paragraph 8 of the allegation. He submitted that paragraph 8 refers to an IELTS examination undertaken in June 2015, but that you have since provided the GMC with scores from a more recent IELTS examination undertaken on 8 July 2017. He therefore submitted that it was appropriate to amend paragraph 8 to reflect these more recent scores. You did not oppose this proposed amendment.



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16. The Tribunal had regard to Rule 17(6) of the Rules, which sets out that:

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

(a) the allegation or the facts upon which is based and of which the practitioner has been noticed 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.’

17. The Tribunal bore in mind that you provided the GMC with the updated IELTS examination scores. It concluded that they were clearly relevant to the issues. It was satisfied that the proposed change could be made without injustice to either party, and accordingly, it determined to amend paragraph 8 as proposed. These amendments are reflected in the body of the allegation, as set out below. Admissions 18. At the outset of the hearing you made a number of admissions, as follows:

Paragraph 1; Paragraph 2a, b, c, d; Paragraph 3; Paragraph 5 in its entirety;

Paragraph 6 in its entirety; Paragraph 7 in its entirety; Paragraph 8 in its entirety; Paragraph 9; Paragraph 10.

19. These admissions are reflected in the body of the allegation, as set out below. Background 20. The allegation brought by the GMC relates to your clinical care of 5 patients, an alleged failure to disclose an interim order of conditions to an employer, and concerns relating to your knowledge of the English Language. Clinical concerns 21. You were employed at William Harvey Hospital, part of East Kent Hospitals University NHS Foundation Trust (‘the Trust’), as a Locum Consultant General Surgeon between 14 and 28 April 2014. According to the hearing bundle, on 24 April 2014 you were emailed the application form to apply for a long-term locum position



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at the Trust. Your evidence was that you were permitted to apply for this position offline as an exception, as the online application process had closed. This is not disputed by the GMC. 22. On 28 April 2014 you undertook a laparoscopic cholecystectomy on Patient A, and you have admitted a number of pre-operative failings. The GMC alleges further perioperative failings in relation to Patient A, including an alleged failure to seek assistance when necessary and an alleged failure to convert to an open operation when appropriate. You were dismissed from the Trust immediately following Patient A’s procedure. 23. Patient C was admitted to the Trust with acute abdominal symptoms and was found to have an ischaemic transverse colon with offensive smelling free fluid in the peritoneal cavity. It is alleged by the GMC that, on 20 April 2014 when operating on Patient C, you failed to exteriorise the distal end of the bowel to fashion a mucous fistula when it was appropriate to do so. 24. Further concerns were raised by the Trust in relation to Patients D, E, and F; you have admitted the paragraphs of the allegation relating to these patients. English Language concerns 25. In relation to the English Language concerns, you have admitted that on 8 July 2017 you undertook an academic IELTS examination in which you scored below the minimum required scores in the areas of listening, reading, and writing. You have also admitted that your overall score of 6.5 was below the minimum overall required score of 7.5. Alleged breach of your interim order 26. In relation to your interim order, you have admitted that, prior to commencing work at UHMB in September 2015, you failed to inform UHMB that your registration was subject to an interim order of conditions at least 24 hours before starting work. You have admitted that your failure to do so was a breach of the interim conditions imposed on your registration, but explained in your witness statement that you believed your locum agency had so notified UHMB. Evidence 27. The Tribunal was provided with supporting documentation on behalf of the GMC, including witness statements, medical records, and four expert reports prepared by Mr H, Consultant Surgeon and Clinical Lecturer. Mr H gave oral evidence at this hearing. The Tribunal also heard oral evidence from the following witnesses, called on behalf of the GMC:



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Dr I, Consultant in Intensive Care Medicine and Anaesthetics at the Trust;

Mr J, former Speciality Trainee Year 3 (‘ST3’) in General Surgery at the Trust. 28. The GMC also provided the Tribunal with documentation on your behalf, including your comments on Mr H’s reports, CPD documentation, colleague testimonials, and 360 degree feedback. You provided the Tribunal with a witness statement dated 3 August 2017, and also gave oral evidence at the hearing. Application to admit further evidence 29. Prior to Mr H giving his oral evidence, Mr Coxhill stated that the Tribunal may be assisted by receiving two clinical diagrams provided by Mr H in relation to Patients A and C. You did not object to these diagrams being admitted into evidence, and stated that they may be of assistance to the Tribunal. 30. The Tribunal determined that the diagrams were both fair and relevant, and it bore in mind that you did not object to their admission. Accordingly, it determined to admit the diagrams into evidence. The Tribunal’s Decision 31. The Tribunal has considered each outstanding paragraph of the allegation separately. It has given careful consideration to all of the oral and documentary evidence adduced, together with the submissions made by you and those made by Mr Coxhill on behalf of the GMC. It heard the advice of the Legally Qualified Chair, and noted that the burden of proof lies with the GMC at this stage. 32. Bearing the above in mind, the Tribunal has made the following findings of fact:

Paragraph One On 28 April 2014 you undertook a Cholecystectomy procedure on Patient A. Admitted and found proved

Paragraph Two In respect of the procedure mentioned at 1 above, you failed to:

a. undertake an adequate pre-operative assessment of Patient A;

Admitted and found proved

b. discuss Patient A’s case with a colleague who was an experienced biliary surgeon before commencing the procedure; Admitted and found proved



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c. ensure that you had appropriate equipment available before commencing the procedure; Admitted and found proved

d. ensure that you had appropriate surgical assistance available before commencing the procedure; Admitted and found proved

e. seek assistance during the procedure from an appropriately qualified colleague when it was appropriate to do so; Found proved

33. The Tribunal had regard to the witness statement dated 6 March 2017 provided by Dr I, together with the exhibits and his oral evidence. In this statement, Dr I explained that Sister K, Theatre Senior Sister, had been asked to observe your operating list and to feed back any concerns to Mr L, Consultant General and Upper Gastrointestinal Surgeon and Senior Lead for General Surgery, Breast, Vascular and Urology. 34. During Patient A’s surgery you severed the right branch of the hepatic artery and severed the common bile duct. Dr I wrote in his witness statement that:

‘When I suggested to Dr Xenakis that the case was proving unusually difficult and needed senior help, he did not engage with me. He did, however, announce that he would perform a cholangiogram. This was reasonable. But he was still not engaging with my suggestion that he needed help. As I was not happy, I contacted Mr L directly at 11.20am and asked him to come to theatre’.

35. The Tribunal determined that Dr I was a credible witness, who gave an honest and open account of events at this hearing. His account was consistent with his earlier statement made approximately two weeks after Patient A’s procedure. 36. In Sister K’s witness statement, also dated 6 March 2017, she wrote that she also made a number of telephone calls to Mr L during Patient A’s procedure, stating:

‘Whilst operating, Dr Xenakis cut the patient’s vessel. I left the theatre and called Mr L immediately and told him what had happened and asked him to come to theatre’.

37. Mr L’s evidence corroborates that of both Dr I and Sister K, and the Tribunal had regard to Patient A’s notes, where Mr L contemporaneously recorded ‘called from clinic by [Sister K]’. Your own evidence is that you had planned to perform a cholangiogram and then convert to open surgery, but you did not mention any plan to call Mr L (or any other appropriately qualified colleague) for assistance. Your evidence was that you believed such assistance was not available, despite Sister K being present in order to report back to Mr L, and your previous work in the NHS.



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From this evidence, the Tribunal was satisfied that – although Mr L did attend Patient A’s procedure – it was not you who sought his assistance. 38. The Tribunal next had regard to the expert report dated 15 September 2014 prepared by Mr H, in which he opined that your failure to ask for assistance when appropriate fell seriously below the standard of care expected. The Tribunal considered that, given Patient A’s blood loss, you had a duty to seek assistance from an appropriately qualified colleague. It was satisfied that you did not do so, and that your actions in not doing so constituted a failure of your duty of care. It therefore found this paragraph of the allegation proved.

f. appreciate the potential seriousness of a divided bile duct and damaged right hepatic artery; Found proved

39. The Tribunal had regard to Mr H’s expert report dated 15 September 2014, in which he set out that:

‘A patient with a divided bile duct and a damaged right hepatic artery is in significant danger, both in the short term, and in the long term’.

40. Mr H opined that, given it was theatre staff (rather than you) who sought assistance from Mr L, you had clearly failed to appreciate this danger. Mr H added that, even in the presence of a ‘profuse haemorrhage’ you did not request help; instead clips were placed around the porta, where he opined that they could have caused ‘even more extensive damage’. 41. When Mr L attended Patient A, he immediately converted to open surgery, removed the clips, and repaired the tear on the lateral wall of the right hepatic artery. In his statement provided to the Trust on 15 May 2014, Mr L wrote that this repair restored Patient A’s blood supply. 42. Your evidence is that you did appreciate the potential seriousness of the situation, but that you did not communicate it at the time. You accepted that your communication was below the required NHS standard. 43. In determining whether or not you appreciated the potential seriousness of a divided bile duct and damaged right hepatic artery, the Tribunal considered your actions during Patient A’s procedure. The Tribunal bore in mind that you did not communicate Patient A’s blood loss with Dr I, and that he instead noticed the blood loss for himself. The Tribunal considered that - had you appreciated the potential seriousness of the situation - it is more likely than not that you would have communicated this blood loss with Dr I, enabling blood to be cross-matched if necessary.



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44. You further told the Tribunal that your planned response was to undertake a cholangiogram; however Mr H opined that this was not appropriate in the circumstances. The Tribunal determined that – had you appreciated the potential seriousness of the situation - you would have repaired the artery instead of focussing on a cholangiogram, as Mr L did on attendance. Alternatively, you would have sought assistance from a colleague. As found proved at paragraph 2(e) of the allegation, it was Dr I and Sister K who sought Mr L’s assistance, rather than you. 45. Your evidence was that Patient A was not in danger as he remained haemodynamically stable and the division of the bile duct was ‘therapeutic’ as it allowed two gallstones to be removed. Mr H, in his oral evidence, described your comment as ‘fatuous’ and ‘ridiculous’, and stated that it showed a complete lack of insight into the potential seriousness of the two injuries you inflicted on Patient A. The Tribunal accepted the view of Mr H that Patient A was put at risk during the operation, and that there was no therapeutic benefit in dividing his bile duct. 46. Given the above, the Tribunal determined that - on the balance of probabilities - you did not appreciate the potential seriousness of Patient A’s divided bile duct and damaged right hepatic artery. It therefore found this paragraph of the allegation proved.

g. seek assistance when it was suggested by Dr B; Found proved

47. Dr I (referred to as ‘Dr B’ in the allegation) was clear that he received little communication from you, and in your witness statement of 3 August 2017, you accepted failings in communication. Dr I’s evidence is that he suggested you call Mr L, but that you did not respond. Dr I informed the Tribunal that you were ‘absorbed’ in concentration, and that, given his concerns over Patient A’s blood loss, he took it upon himself to call Mr L. 48. Your evidence is that you answered ‘yes’ when asked by Dr I whether he should call Mr L, however this contradicts your earlier statement given to the Trust, where you stated that it was in fact you who called for assistance. 49. As set out under paragraph 2(e) of the allegation, the Tribunal determined that Dr I was a clear and credible witness. He does not recall you answering ‘yes’ when asked about Mr L, and this corresponds with Sister K’s recollection that you did not request any assistance. The Tribunal further considered that, had you answered ‘yes’, it would have been unnecessary for you to undertake a cholangiogram as planned. The Tribunal preferred Dr I’s version of events to yours, and determined that you did not seek assistance when suggested by Dr B.

h. convert to an open operation when it was appropriate to do so. Found proved



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50. Your evidence is that you first planned to undertake a cholangiogram, and then planned to convert to an open procedure. However, in oral evidence at this hearing Mr H opined that you should have converted to an open procedure as soon as the extent of the blood loss became apparent. In Mr H’s expert report of 15 September 2014 he wrote that your failure to convert to an open operation was seriously below the standard of care accepted. 51. In Sister K’s undated statement prepared for the Trust, she wrote that when leaving his clinic Mr L ‘requested that instrumentation be prepared for an open procedure’. The Tribunal determined that Mr L’s response indicates that converting to an open procedure was clearly appropriate in the circumstances. It further considered that you first met Patient A on the morning of the procedure, and were aware that this was a high-risk case that may require conversation to open surgery. Despite this, when you got into difficulty, your first choice was to perform a cholangiogram. The Tribunal therefore determined that – whilst you may have planned to convert to an open operation post-cholangiogram – you should instead have converted to an open procedure as soon as the extent of Patient A’s blood loss became apparent. It therefore found this paragraph of the allegation proved.

Paragraph Three During the procedure mentioned at 1 above you placed surgical clips around Patient A’s porta when it was inappropriate to do so. Admitted and found proved Paragraph Four On 20 April 2014, during an operation on Patient C, you failed to exteriorise the distal end of the bowel to fashion a mucous fistula when it was appropriate to do so. Found proved

52. The Tribunal had regard to the statement prepared by Mr J for the Trust dated 12 May 2014. Mr J, then an ST3, assisted you during Patient C’s procedure. In this statement, Mr J set out that, during Patient C’s procedure:

‘I asked specifically about the stoma – would he prefer a double-barrelled stoma in the left iliac fossa or an end-ileostomy and mucous fistula. He said it was unnecessary to bring up the distal end. I did repeat the question (along the lines of, ‘are you sure you don’t want to bring it up, then we have something to assess on the ward?’), to which he said it appeared viable and was not necessary’.

Both options given by Mr J involved the exteriorisation of the distal end. 53. In his expert report dated 28 March 2015 Mr H wrote that it was standard practice to bring out the distal end as a mucous fistula, and the only reason not to do so would be if there was insufficient length of bowel to reach the abdominal wall.



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He added that – if there was sufficient bowel length – then your decision not to do so was seriously below the standard expected of a reasonably competent locum General Surgeon. Mr H also explained that it was difficult to assess the long-term viability of the distal end of the bowel during an operation as, while it may be viable at that time, over the next 24 hours or so the end could become unviable due to issues with blood flow. This was why being able to view the end as a mucous fistula on the ward was useful. 54. You informed the Tribunal that there was not sufficient length to create a mucous fistula. However, the Tribunal noted that your story has been inconsistent, and that you only mentioned bowel length after Mr H completed his report in which length was first mentioned. The Tribunal considered that, had there been insufficient bowel length, then on the balance of probabilities you would have mentioned it sooner. 55. The Tribunal further bore in mind that Mr J did not mention bowel length in his relatively contemporaneous statement, instead recalling that you opined that the creation of a mucous fistula was ‘not necessary’. Mr J recalled that – in his opinion – there would have been sufficient length to create a mucous fistula, or else he would not have given you two options to exteriorise the distal end. Furthermore, when your response was ‘it is not necessary’, he then asked you a second time. Mr J however made the point that, as the consultant surgeon, it was your decision to make as to whether or not there was sufficient length. 56. The Tribunal considered that it was more likely than not that there was sufficient length to create a mucous fistula. Mr J at the time gave you options to exteriorise the distal end and questioned your decision not to do so. The evidence of Mr H was that in 9/10 cases there should have been sufficient length to exteriorise the distal end. At the time of the operation, you were not concerned about the length of the bowel as shown by your explanation to Mr J that the end was ‘viable’. You did not raise any concerns about the length of the bowel to Mr J, or in any of your responses until you had received Mr H’s expert report stating - in essence - that the only justification for not exteriorising the distal end was insufficient length. It therefore found this paragraph of the allegation proved.

Paragraph Five On 25 April 2014 you held a consultation with Patient D and you failed to:

a. make any note of the consultation;

b. dictate or draft any clinic letter;

c. institute any investigations and/or management of Patient D. Admitted

and found proved in its entirety



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Paragraph Six On a date between 14 and 28 April 2014, you held a consultation with Patient E and you failed to:

a. make any note of the consultation; b. dictate or draft any clinic letter; c. institute any investigations and/or management of Patient E.

Admitted and found proved in its entirety

Paragraph Seven On 25 April 2014 you held a consultation with Patient F and you failed to:

a. make any note of the consultation;

b. dictate or draft any clinic letter;

c. institute any investigations and/or management of Patient F.

Admitted and found proved in its entirety Paragraph Eight On 27 June 2015 8 July 2017 you undertook a further assessment of your knowledge of the English language using the academic version of the IELTS test in respect of which:

a. you achieved the following scores in the following testing areas:

i. listening - 6.0 6.5;

ii. reading - 6.0 6.5;

iii. writing - 6.5 6.0;

b. these scores were each below the minimum scores acceptable to

demonstrate the necessary knowledge of English;

c. your overall score was 6.5, which is less than the minimum overall required score of 7.5. Admitted and found proved in its entirety



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Paragraph Nine On 30 September 2015, you commenced work as a locum Consultant Breast Surgeon at the University Hospitals of Morecambe Bay NHS Foundation Trust (‘the Trust’). Admitted and found proved

Paragraph Ten You failed to inform the Trust and/or your immediate line manager that your registration was subject to an interim order of conditions at least 24 hours before starting work in breach of the conditions imposed by the Interim Orders Tribunal between 17 June 2014 and 29 October 2015. Admitted and found proved

Determination on Impairment - 09/08/2017 Dr Xenakis: 1. Having announced its findings of fact the Tribunal next considered whether, on the basis of the facts found proved, your fitness to practise is impaired by reason of misconduct, and by reason of not having the necessary knowledge of English. Evidence 2. Mr Coxhill applied to admit three further IELTS test report forms (dated 14 April 2015, 11 June 2015, and 9 July 2015) into evidence. You did not oppose these documents being admitted, and the Tribunal was satisfied that the documents were both fair and relevant. The forms were therefore admitted into evidence. 3. You provided the Tribunal with a European Accreditation Council for Continuing Medical Education (‘EACCME’) certificate dated June 2016; Mr Coxhill raised no objection to this, and the certificate was admitted into evidence. You also gave oral evidence in relation to impairment. Submissions 4. Both you and Mr Coxhill provided the Tribunal with written submissions in relation to impairment. These submissions are summarised below. GMC submissions 5. In relation to misconduct, Mr Coxhill submitted that your treatment of Patients A, C, D, E, and F was far below the standard required of a reasonably competent general surgeon, as set out by Mr H in his expert reports. Mr Coxhill submitted that you breached a number of principles set out in Good Medical Practice



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(‘GMP’). He said that your conduct was particularly serious in relation to Patient A, where you recklessly undertook a procedure beyond your technical ability and failed to put patient safety first, and in relation to Patient C, where your decision not to exteriorise the distal end was a factor that contributed to Patient C’s death. Mr Coxhill further submitted that your failure to inform UHMB of your interim conditions had the potential to put patients at risk, and accordingly, he submitted that your conduct in relation to all the above matters amounted to misconduct. 6. Turning to impairment by reason of misconduct, Mr Coxhill submitted that you have very limited insight, that you denied allegations which were later found proved, that you attempted to blame others for a number of your actions, and that your evidence at the impairment stage undermined the Tribunal’s findings of fact. He submitted that ‘the combination of the circumstances of the past incidents and very limited insight culminates in a continuing risk to patients’, adding that public confidence in the profession would be undermined if a finding of impairment were not made. Accordingly, he invited the Tribunal to find that your fitness to practice is currently impaired by reason of misconduct. 7. In relation to you not having the necessary knowledge of English, Mr Coxhill submitted that you have failed the IETLS examination four times, and that there has been no real improvement in respect of your scores. He submitted that your failure to meet the required standard of English could put patients at risk of harm and could undermine public confidence in the profession. He added that you do not have full insight into these concerns, instead attempting to blame the IELTS examination for your failure, rather than accepting your own deficiencies. Accordingly, he submitted that your fitness to practice is also currently impaired by reason of you not having the necessary knowledge of English. Your submissions 8. In relation to misconduct, you invited the Tribunal to consider that the only incidents that have occurred throughout your whole career took place within your two weeks at the Trust. You invited the Tribunal to have regard to the testimonials provided on your behalf, which show that there are no other ‘professional misconducts, any negligence or deficient performance to put my fitness to practice in question’. You addressed the Tribunal on each of the individual patients in question. You submitted that you do have insight into your actions, writing:

‘The most important thing for every person is to learn from his mistakes and to try to improve himself constantly. I now am totally aware of my faults, I also have described myself in that particular period, and have mentioned some parameters of the environment. Taking in account all this, I consider that I have learned from these incidents and taking them as a trigger I have done the necessary steps for my personal development plan, including fulfilling my annual appraisals… and I have implemented measures that



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similar incidents not to be repeated. My efforts for delivering the best level of care will continue, as I have implanted my personal development plan in the well-known process of appraisal and revalidation. From my side, my greatest wish is having the opportunity to continue working in NHS delivering the best medical care having always in mind that the safety of patients will be my first priority.’

9. In relation to you having the necessary knowledge of English, you raised a number of concerns regarding the IELTS examination itself, submitting that it was designed for younger age groups. You invited the Tribunal to consider that the academic IELTS examination is not medical, but covers a number of different and distinct topics ranging from dinosaurs to astronomy. You submitted that GMP sets out that doctors must have the necessary knowledge of English to provide a good standard of practice and care in the UK, and added that over the past 3 years you have made significant efforts to improve your English and communication skills. You submitted that recent testimonials and 360 degree feedback show that your English is good when communicating with patients and colleagues, and added that your IELTS speaking score was 7, meaning that you can handle complex language well and can understand detailed reasoning. You commented in your written submission that juniors could help complete notes for patients on your behalf. You therefore submitted that you are able to communicate with patients and colleagues safely. The Tribunal’s Decision 10. Whilst the Tribunal has borne in mind the submissions made, the decision as to whether your fitness to practise is currently impaired is a matter for this Tribunal exercising its own judgement. In reaching its decision the Tribunal had regard to the advice of the Legally Qualified Chair, and bore in mind that its primary responsibility is to the statutory over-arching objective, which is as follows:

‘a protect and promote the health, safety and wellbeing of the public b promote and maintain public confidence in the medical profession c promote and maintain proper professional standards and conduct for

the members of the profession.’ Misconduct 11. The Tribunal first considered whether your fitness to practise is impaired by reason of misconduct. The test applied is a two stage test - the Tribunal must first consider whether the facts found proved amount to misconduct that is serious; if serious misconduct is found, the Tribunal must then go on to consider whether your fitness to practise is currently impaired by reason of that misconduct.



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Patient A 12. The Tribunal considered that Patient A was a challenging patient, and that at the time of the procedure, you were a new locum consultant surgeon at the Trust. Despite this, Patient A was placed on your operating list, and the Tribunal determined that some responsibility must therefore lie with the Trust for assigning Patient A to you in these circumstances. However, notwithstanding this, the Tribunal found all paragraphs of the allegation relating to Patient A proved. Your failings included, but were not limited to, a failure to communicate with Dr I regarding Patient A’s blood loss, a failure to call Mr L when appropriate, proceeding to operate on a high-risk patient in circumstances where you accept that you should not have so done, and injuring the patient in two different ways. 13. The Tribunal had regard to GMP, and determined that your actions in relation to Patient A were in breach of the following paragraphs:

o Paragraph 1 ‘Patients need good doctors. Good doctors make the care of their patients their first concern: they are competent, keep their knowledge and skills up to date, establish and maintain good relationships with patients and colleagues, are honest and trustworthy, and act with integrity and within the law.’

o Paragraph 7 ‘You must be competent in all aspects of your work…’

o Paragraph 14 ‘You must recognise and work within the limits of your

competence.’

o Paragraph 15 ‘You must provide a good standard of practice and care. If you assess, diagnose or treat patients, you must:

a adequately assess the patient’s conditions, taking account of their history (including the symptoms and psychological, spiritual, social and cultural factors), their views and values; where necessary, examine the patient

b promptly provide or arrange suitable advice, investigations or treatment where necessary

c refer a patient to another practitioner when this serves the patient’s needs.’

o Paragraph 16 ‘In providing clinical care you must:

…



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b provide effective treatments based on the best available evidence … d consult colleagues where appropriate’

o Paragraph 18 ‘You must make good use of the resources available to you’

o Paragraph 25 ‘You must take prompt action if you think that patient

safety, dignity or comfort is or may be seriously compromised...’

o Paragraph 35 ‘You must work collaboratively with colleagues, respecting their skills and contributions.’

14. The Tribunal determined that your actions in relation to Patient A contravened a number of the fundamental tenets of the medical profession, and that your actions put Patient A in real and serious danger. It was satisfied that fellow practitioners would regard your conduct as deplorable, and accepted Mr H’s view that the standard of care you provided to Patient A was seriously below the standard of care required of a consultant locum general surgeon in numerous ways as found earlier in its determination on facts. The Tribunal was satisfied that your actions in relation to Patient A amounted to misconduct that was serious. 15. Turning to impairment, the Tribunal had regard to the advice given by Mr Justice Silber in the case of Cohen v GMC [2008] EWHC 581 (Admin), who set out that:

‘It must be highly relevant in determining if a doctor’s fitness to practise is impaired that; first his or her conduct which led to the charge is easily remedied, second that it has been remedied and third that it is highly unlikely to be repeated’.

16. The Tribunal was satisfied that your failings in relation to Patient A are remediable, and it bore in mind that you have attended laparoscopic courses, that you have improved your understanding of team-working within the NHS, and that – according to recent colleague feedback - you are working collaboratively and are seeking advice when appropriate. Further, it bore in mind that you have worked on your communication skills, and have received good feedback for your work as a supervised middle-grade surgeon. 17. However, notwithstanding the progress you have made, the Tribunal was concerned that your insight into Patient A remains limited. The Tribunal heard that the potential consequences for Patient A could have been catastrophic, but despite this, you told the Tribunal in evidence that the division of the bile duct was ‘therapeutic’. Further, you asserted to the GMC that Patient A was not in danger, and



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that there were no complications. In addition, you have yet to accept that you did not call Mr L for assistance, despite the Tribunal’s findings at stage 1. 18. Bearing the above in mind the Tribunal determined that, whilst your misconduct may be remediable, you have not yet fully remediated. Accordingly, there remains an ongoing risk of repetition and risk to patient safety. The Tribunal therefore determined that your fitness to practise is currently impaired by reason of misconduct in relation to Patient A. 19. In reaching this decision, the Tribunal had regard to the case of CHRE v NMC and Grant [2011] EWHC 927 (Admin) (‘Grant’), which sets out that public confidence in the profession may be undermined if a finding of impairment is not made in particular circumstances. Given your failings in relation to Patient A, the Tribunal determined that a finding of impairment was also necessary in order to uphold public confidence in the medical profession, and to uphold proper standards of conduct and behaviour. Patient C 20. In relation to Patient C, the Tribunal found that you did not follow the standard procedure identified by Mr J, Mr H, and by you. Your explanation as to why you did not exteriorise the distal end of the bowel to create a mucous fistula was dealt with by the Tribunal in its determination on facts; the Tribunal found that there was, in fact, sufficient length to create a mucous fistula. In evidence at the impairment stage you informed the Tribunal that there was insufficient time to exteriorise the distal end of the bowel, given Patient C was unstable. However, this explanation was not provided to the GMC in any of your responses prior to the hearing. The Tribunal found this explanation to be implausible, particularly as you now appeared to accept that exteriorisation of the distal end was possible given sufficient time. 21. The Tribunal determined that your actions in relation to Patient C breached a number of the principles set out in GMP, including paragraphs 7 and 16(d), as set out above. The Tribunal bore in mind that, as set out in the case of Calhaem v GMC [2007] EWHC 2606 (Admin), mere negligence does not constitute misconduct. However, depending on the circumstances, negligent acts or omissions which are particularly serious may amount to misconduct. 22. The Tribunal determined that your failure to follow standard procedure in circumstances where there was sufficient length to create a mucous fistula was particularly serious. It bore in mind that you went against standard procedure, and the Tribunal agreed with Mr H’s view that the standard of care provided by you was seriously below the standard required of a consultant general surgeon. The consequences for Patient C were severe. Accordingly, the Tribunal determined that your actions in relation to Patient C constituted misconduct that was serious.



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23. Turning to impairment, the Tribunal determined that you have shown no insight in relation to your actions whatsoever. Therefore, whilst your actions may be capable of remediation, you have yet to remediate them. You have yet to accept that you did anything wrong in relation to Patient C, and maintain that there was insufficient length and/or time to create a mucous fistula, despite the Tribunal’s finding to the contrary. Your evidence was that, if you could have followed up Patient C personally, the outcome for her would have been different. However, this ignores the finding of the operating surgeon who opened up Patient C on 12 May 2014, and who found that the closed distal end of the bowel had broken down and leaked its contents into the peritoneal cavity. This resulted in Patient C suffering from extensive sepsis. Given your failure to remediate your actions, combined with your lack of insight, the Tribunal determined that your fitness to practise is currently impaired by reason of your misconduct. 24. In reaching this decision, the Tribunal further had regard to the case of Grant. It determined that, given your failings in relation to Patient C, a finding of impairment was also necessary in order to uphold public confidence in the medical profession, and to uphold proper standards of conduct and behaviour. Patients D, E, and F 25. In relation to these Patients D, E, and F you admitted that, on 25 April 2014, you failed to make any note of consultations, failed to dictate or draft clinic letters, and failed to institute any investigations and/or management. The Tribunal had regard to paragraph 19 of GMP, which sets out that:

‘Documents you make (including clinical records) to formally record your work must be clear, accurate and legible. You should make records at the same time as the events you are recording or as soon as possible afterwards.’

26. You explained to the Tribunal that on 25 April 2014 you had a busy clinic with over 30 patients to see (this was double the usual number), and that you did not finish the clinic until 7pm. This is not challenged by the GMC. You explained that you kept post-it notes to remind you of the actions required for the patients in question on your desk in your office, and that you intended to complete the paperwork for Patients D, E, and F the next working day. However, the next working day you were dismissed from the Trust following Patient A’s procedure. Your evidence is that you told the Medical Director that you had paperwork to complete, but that you were not permitted to return to your office. Again, this is not challenged by the GMC. 27. The Tribunal noted that the wording of paragraph 19 of GMP states that records should be made, if not contemporaneously, then ‘as soon as possible afterwards’. Given that you had a busy clinic and finished late on 25 April 2014, the Tribunal considered it reasonable that you intended to complete the paperwork the



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next working day. However, subsequent events at the Trust meant that you were unable to do so. 28. Whilst the Tribunal considered your actions to be a breach of GMP, it determined that fellow practitioners would not find your conduct in relation to Patients D, E, and F to be deplorable in the circumstances. It further noted that, out of 30 patients that day, it appears that you only failed to make any note of the consultation in respect of the 3 named patients. The Tribunal noted that Mr H, in his expert report, took the view that your actions in respect of Patients D, E, and F fall seriously below the standard expected from a reasonably competent locum consultant general surgeon. However, in light of the circumstances surrounding your failure, the Tribunal did not find that your actions amounted to misconduct that was serious. 29. Given this finding, the Tribunal did not go on to consider impairment in relation to Patients D, E, and F. Interim Order 30. In relation to your failure to inform UHMB of your interim order of conditions 24 hours before starting work, you informed the Tribunal that you erroneously believed your locum agency (DRC Locums) would inform UHMB on your behalf. You further informed the Tribunal that you were supervised at UHMB, and that given this supervision, you believed UHMB had been made aware of your interim conditions. The Tribunal had regard to the determination from your Interim Orders Tribunal which took place on 5 January 2016, in which an email from Dr M, Responsible Officer of DRC Locums, was quoted as follows:

‘I believe that Dr Xenofon’s breach of his conditions was done with neither malicious nor deceitful intent, it was a lack of understanding, compounded by Retinue Solutions’ failure to communicate with the Trust about the conditions’.

31. You informed the Tribunal that you did not see your line manager in the 24 hours after starting work at UHMB, and the Tribunal accepted this evidence, although it noted the obligation was to notify 24 hours before starting work. The Tribunal further bore in mind that you informed the GMC about your position at UHMB, and informed your locum agency of your interim conditions. Both of these actions were in accordance with your interim conditions, and the Tribunal was satisfied that you were not attempting to hide or cover up your conditions in any way. It accepted your evidence that, due to the strict supervision imposed on you from the start by UHMB, you believed the Trust was aware of your conditions. 32. Whilst it was your responsibility to comply with the interim conditions, the Tribunal was satisfied that your failure to inform UHMB of them was a genuine error.



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It did not consider that fellow practitioners would find your conduct to be deplorable in these circumstances, and accordingly, it determined that your actions in relation to the interim order did not amount to misconduct that was serious. 33. Given this finding, the Tribunal did not go on to consider impairment in relation to the interim order. English Language 34. The Tribunal next considered whether your fitness to practise is impaired by reason of you not having the necessary knowledge of English. In so doing, the Tribunal had regard to paragraph 14.1 of GMP, which sets out that:

‘You must have the necessary knowledge of the English language to provide a good standard of practice and care in the UK.’

35. The GMC uses the IELTS examination to test whether or not a practitioner has the necessary knowledge of the English language. According to the GMC’s IELTS criteria, doctors must score at least 7.0 in each of the four IELTS categories, and must obtain an overall band score of at least 7.5. 36. In your first IELTS examination on 14 April 2015 you achieved an overall band score of 6.5; on 11 June 2015 you achieved an overall band score of 6.0, and on 9 July 2015 you achieved an overall band score of 6.5. In your most recent IELTS examination (undertaken on 8 July 2017), you scored the following:

Listening: 6.5 Reading: 6.5 Writing: 6.0 Speaking: 7.0 Overall band score: 6.5

37. The Tribunal therefore determined that, according to the GMC’s own criteria, you have not demonstrated that you have the necessary knowledge of the English Language to provide a good standard of practice and care. Further, in your most recent examination, you only met the required individual category score in one out of four categories. It also noted that you have made little progress in respect of your IETLS examination scores since your initial examination in April 2015. 38. The Tribunal had regard to recent patient and colleague feedback, all of which indicates that your spoken English is good and that you communicate well with patients. The Tribunal contrasted this recent feedback with that received from colleagues in 2014, and it was satisfied that your standard of verbal communication has improved. It noted that you had attended a communication skills course. However, the Tribunal bore in mind that medical practice does not solely encompass verbal communication, but also involves reading, writing, and listening. You have



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been found to be below the required standard in respect of these latter three categories. 39. The Tribunal further considered that your insight into the concerns regarding your English language skills remains limited, as shown by your criticism of the IELTS examination. It noted that you operate at times in an emergency environment where the ability to read English, write in English, listen in English, and speak in English - all whilst under pressure - is essential. 40. Accordingly, taking into consideration your recent IELTS examination scores, the Tribunal determined that your fitness to practise is currently impaired by reason of you not having the necessary knowledge of English. Determination on Sanction - 09/08/2017 Dr Xenakis: 1. Having determined that your fitness to practise is impaired by reason of misconduct, and by reason of you not having the necessary knowledge of English, the Tribunal next considered what action, if any, it should take with regard to your registration. Submissions 2. Mr Coxhill provided the Tribunal with written submissions on sanction. In these submissions, he invited the Tribunal to consider the aggravating factors in your case, which include a lack of insight and a failure to work collaboratively with colleagues. He submitted that, given the Tribunal’s findings that you departed from GMP, it would be inappropriate and unworkable to take no action on your registration, or to impose an order of conditions. Mr Coxhill submitted that an order of suspension would be an appropriate response to misconduct that is so serious that action must be taken to maintain public confidence in the profession. He further wrote that suspension is also likely to be appropriate in a case of lack of knowledge of English, and submitted that the Tribunal may wish to direct a review. In relation to length of the order, he reminded the Tribunal that a suspension may be imposed for up to 12 months. 3. You gave oral submissions to the Tribunal. In these submissions, you stated that you understood that your misconduct was serious and that your insight had been limited. You accepted that the Tribunal must do everything it its power to protect the public, and invited it to consider the steps you have taken so far to improve your English language skills, as well as your overall clinical skills. You submitted that you will continue to improve your English language and clinical skills until you reach the standard required by the GMC. You informed the Tribunal that



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you wish to continue in NHS work, and submitted that you would like to continue in restricted practice whilst further developing your clinical and English language skills. The Tribunal’s Decision 4. The decision as to the appropriate sanction to impose, if any, is a matter for this Tribunal exercising its own judgement. In reaching its decision the Tribunal has taken account of the Sanctions Guidance (‘SG’), and has borne in mind that the purpose of a sanction is not to be punitive, although it may have a punitive effect. The Tribunal has applied the principle of proportionality, weighing your interests with the overall public interest. The Tribunal accepted the advice of the Legally Qualified Chair, and began its deliberations by considering the mitigating and aggravating factors in your case. 5. In mitigation, the Tribunal bore in mind that you have a long and otherwise unblemished career, and that – at the time of Patient A and C’s procedures – you were relatively new to the NHS and were working in an unfamiliar hospital. It further considered that the procedures in question took place over 3 years ago, and that Patient A was a high risk patient who, arguably, should not have been assigned to your operative list. You have demonstrated some insight into the concerns arising from Patient A’s procedure, as shown by your apology and the steps you have already taken to remediate. This remediation includes undertaking relevant laparoscopic courses relating to Patient A’s procedure. 6. The Tribunal further noted that you have begun to remediate the English Language concerns by attending courses and previously employing a tutor. At this hearing, you expressed a willingness to further your remediation in relation to both your conduct and your English Language. The Tribunal noted that recent colleague feedback and testimonials indicate that you communicate well with patients, work collaboratively, and seek advice when necessary, and it further bore in mind the admissions you made at the outset of this hearing. 7. In aggravation, the Tribunal considered that you have shown no insight into the concerns arising from Patient C’s procedure. Further, it considered that you have limited (albeit developing) insight into the concerns regarding Patient A and your knowledge of English; the insight that you have shown has been late to develop. The Tribunal found a failure to work collaboratively in relation to Patient A, and it noted that – at this hearing – you attempted to exteriorise responsibility in relation to a number of concerns, for example, by blaming the IELTS examination for your failure to achieve the required standard of English.



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No Action 8. In coming to its decision as to the appropriate sanction, if any, to impose today, the Tribunal first considered whether to conclude your case by taking no action. 9. The Tribunal determined that there were no exceptional circumstances in your case that would warrant it taking no action. It further determined that, given its findings in relation to misconduct and English language, it would be wholly disproportionate to conclude your case with no action. In reaching this decision the Tribunal had regard to the statutory overarching objective, and determined that taking no action on your registration would not protect patients or the public interest, nor would it serve to uphold proper standards of conduct and behaviour. Conditions 10. The Tribunal next considered whether it would be sufficient to impose conditions on your registration. It bore in mind that any conditions imposed would need to be appropriate, proportionate, workable, and measurable. English Language 11. The Tribunal first considered whether conditions would be sufficient to address the English Language concerns in your case. As set out in its earlier determination on impairment, you have failed to meet the IELTS criteria set by the GMC on four previous occasions. However, despite this, the Tribunal was provided with evidence to show that you have made progress in respect of your language skills and your communication with patients. It had regard to recent patient and colleague feedback, including a testimonial dated 28 July 2017 from Professor N, your colleague at the Burton Breast Unit, who wrote: ‘His English is good, he talks to patients in a confident and reassuring manner’. The Tribunal contrasted this feedback with earlier feedback dating from 2014 in which concerns were raised about your ability to communicate; the Tribunal determined that this recent feedback demonstrates the progress you have made. 12. At this hearing you informed the Tribunal that you intended to undertake further English language training; given the improvement in your patient and colleague feedback, it was satisfied that you have demonstrated the potential to respond positively to such retraining. You have accepted that you have a problem, and have already taken steps to remediate this problem by attending English language courses and by instructing a language tutor. The Tribunal bore in mind that you are currently under an order of interim conditions, and that – despite your IELTS score – it has not been made aware of any issues relating to your ability to read, write, or listen in a clinical setting. The Tribunal considered that conditions that are measurable and workable could be imposed to protect patients whilst also



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allowing you to continue to further improve your English language skills. It determined that a condition requiring clinical supervision would act as a safety net, should any communication issues arise. 13. Bearing the above in mind, the Tribunal was satisfied that you have shown some insight into the English language concerns in your case, and that you have already begun to take steps to address these concerns. It bore in mind the progress you have made in relation to communication, as evidenced by recent colleague and patient feedback and colleague testimonials. Accordingly, it was satisfied that conditions could be imposed that would adequately and appropriately address the English language concerns in your case, whilst also protecting patients and upholding public confidence in the medical profession. Misconduct 14. The Tribunal next considered whether conditions would be sufficient in relation to your misconduct. In relation to Patient A, it was satisfied that you have some insight into your misconduct, as shown by your apology and the steps you already have taken to remediate, including your attendance at laparoscopic courses. It bore in mind the mitigating factors in relation to Patient A, including the fact that Patient A was a high risk patient, and that you were relatively new to the NHS and were unaware of the support available to you. Recent colleague feedback indicates that you are now working collaboratively, and that you do seek support when required. 15. In relation to Patient C, the Tribunal has found that you have yet to show any real insight into your misconduct. At the beginning of this hearing you denied any misconduct or wrongdoing; however in your submissions at sanction stage you accepted misconduct in relation to Patient C. The Tribunal determined that this is evidence of developing insight, and it was satisfied that – given you have already gained insight into Patient A – you are capable of developing further insight into Patient C, and of remediating your misconduct. 16. The Tribunal bore in mind that you are already subject to interim conditions, and that you have shown a willingness to comply with further conditions. It was satisfied that you are aware of your mistakes, and have demonstrated that you are capable of remediation. It considered that workable conditions could be formulated that would protect patients, uphold public confidence in the medical profession, and maintain proper professional standards, whilst also allowing you to remediate in a supervised and measured setting. The Tribunal accepts that you have some insight into your misconduct and are willing and able to remediate. It therefore determined that workable conditions could be formulated to address your misconduct. 17. The Tribunal had regard to paragraph 82 of the SG, which sets out that conditions are likely to be workable in cases where:



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The doctor has insight;

A period of retraining and/or supervision is likely to be the most appropriate way of addressing any findings;

The Tribunal is satisfied the doctor will comply with them;

The doctor has the potential to respond positively to remediation, or retraining, or to their work being supervised.

18. The Tribunal was satisfied that all the above points are met in your case, and bearing in mind the requirement to impose the least restrictive sanction, it determined that an order of conditions was both appropriate and proportionate. It considered that a period of 18 months should be sufficient for you to remediate your misconduct, and for you to meet the required score on the IELTS examination. The Tribunal therefore imposed the following conditions on your registration for a period of 18 months:

1 You must notify the GMC within seven calendar days of the date these conditions become effective:

a of the details of your current post, including your job title, job location and responsible officer (or their nominated deputy) information; b of the contact details of your employer and/or contracting body, including your direct line manager; c of any organisation where you have practising privileges and/or admitting rights; d of any training programmes you are in;

e of the contact details of any locum agency you are registered with.

2 You must notify the GMC: a of any post you accept, before starting it; b if any formal disciplinary proceedings against you are started by

your employer and/or contracting body, within seven calendar days of being formally notified of such proceedings;



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c if you apply for a post outside the UK. 3 You must allow the GMC to exchange information with any person

involved in monitoring your compliance with your conditions. 4 a You must have a workplace reporter approved by your

responsible officer (or their nominated deputy) and must inform the GMC of these arrangements;

b You must not start/restart work until your responsible officer (or their nominated deputy) has approved your workplace reporter and this approval has been forwarded to the GMC.

5 a You must design a Personal Development Plan (‘PDP’), approved by your responsible officer (or their nominated deputy), with specific aims to address and evidence the following:

That you are communicating effectively with colleagues and patients;

That you follow current guidelines when performing bowel surgery.

b You must give the GMC a copy of your approved PDP within three months of these conditions becoming effective;

c You must give the GMC a copy of your approved PDP on request;

d You must meet with your responsible officer (or their nominated deputy), as required, to discuss your achievements against the aims of your PDP.

6 You must show evidence that you have completed the International English Language Testing System (IELTS) test and:

a achieved a score of at least 7.0 in each testing area (speaking, listening, reading and writing), and an overall score of at least 7.5; b that you achieved these scores in the same test; c that you took the academic version of the test.

7 You must get the approval of the GMC before starting work in a non-NHS post or setting.



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8 a You must be closely supervised in all of your posts by a clinical

supervisor, as defined in the Glossary for undertakings and conditions. Your clinical supervisor must be approved by your responsible officer (or their nominated deputy) and you must inform the GMC of these arrangements.

b You must not start/restart work until your responsible officer (or their nominated deputy) has approved your clinical supervisor and this approval has been forwarded to the GMC.

9 You must not work in any locum post or fixed term contract of less than 4 weeks’ duration.

10 You must inform the following persons of the conditions listed at 1 to 9 above:

a your employer and/or contracting body; b your responsible officer (or their nominated deputy); c your immediate line manager at your place of work, at least 24 hours before starting work (for current and new posts including locum posts); d any prospective employer and/or contracting body, at the time of application; e the responsible officer of any organisation where you have, or have applied for, practising privileges and/or admitting rights, at the time of application; f any locum agency or out-of-hours service you are registered with

19. Your case will be reviewed shortly before the end of the period of conditional registration. The Tribunal reviewing your case may be assisted by receiving the following:

Evidence that you have achieved a score in an IELTS examination of the required standard;

Evidence that you have reflected on and discussed challenging cases with colleagues;



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Evidence of further reflection in relation to Patients A and C and the English Language concerns;

Recent multi-source and/or 360 degree feedback, along with validated testimonials, appraisals, and evidence from your most recent Revalidation (if undertaken);

Evidence that you have kept your clinical skills and knowledge up to date;

Any other information that you feel will benefit the Tribunal. Determination on Immediate Order - 09/08/2017 Dr Xenakis: 1. Having determined to impose an order of conditions on your registration for a period of 18 months, the Tribunal next considered whether to impose an immediate order of conditions on your registration in accordance with Section 38 of the Medical Act 1983, as amended. 2. Mr Coxhill submitted that the order of conditions imposed by this Tribunal is more stringent than your current interim order of conditions. He submitted that it was therefore necessary and appropriate to impose these conditions with immediate effect. 3. You submitted that it was in the public interest for the order of conditions to be imposed immediately. 4. In reaching its decision the Tribunal exercised its own judgement, and has taken account of the principle of proportionality. The Tribunal bore in mind that it may impose an immediate order where it is satisfied that it is necessary for the protection of members of the public, is in the public interest, or is in the best interests of the practitioner. 5. The Tribunal determined that, given the seriousness of its findings in relation to misconduct and your knowledge of the English language, it was both appropriate and proportionate to impose an immediate order of conditions on your registration. These conditions serve to protect members of the public and to otherwise protect the public interest. 6. The effect of this order is that your registration will be subject to the conditions set out in its determination on sanction from the date when written notice of this decision is deemed to have been served upon you.



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7. Unless you exercise your right of appeal, the substantive order of conditions, as already announced, will take effect 28 days after notice of the outcome of this hearing is deemed to have been served upon you. If you do lodge an appeal, the immediate order of conditions will remain in force until the outcome of any appeal is known. 8. The interim order on your registration is hereby revoked. 9. That concludes your case. Confirmed Date 9 August 2017 Mrs Claire Sharp, Chair