PUBLIC RECORD Date: 29/01/2018 Medical Practitioner s name: Dr Leszek KLIMASZEWSKI GMC reference number: 7239167 Primary medical qualification: Type of case Review - Language impairment Summary of outcome Indefinite Suspension Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Lekarz 1960 Akademia Medyczna w Bialymstoku Outcome on impairment Impaired Mr Richard Kember Mr John Ennis Dr Andrew Hoyle Tribunal Clerk: Mrs Jo Johnson Attendance and Representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Not present and not represented N/A Ms Sarah Barlow, Counsel Attendance of Press / Public The hearing was all heard in public. Determination on Impairment - 29/01/2018 1
Ms Barlow: Service 1. Dr Klimaszewski is neither present nor represented today. Accordingly, the tribunal has considered your submission that notification of this hearing has been properly served upon Dr Klimaszewski. 2. You provided the tribunal with a copy of the General Medical Council (GMC) information letter dated 12 December 2017 which was sent to Dr Klimaszewski s registered address by special delivery on the same day. On 4 January 2018 the letter was returned to the GMC as Royal Mail had been unable to deliver it. The GMC information letter was also emailed to Dr Klimaszewski on the 12 December 2017 and you have provided the tribunal with a copy of an email relayed receipt. 3. You have also provided the tribunal with a copy of the Medical Practitioners Tribunal Service (MPTS) notice of hearing letter, dated 21 December 2017, which was sent to Dr Klimaszewski s registered address by special delivery. The MPTS notice of hearing was subsequently returned to the MPTS on 2 January 2018 as Royal Mail had been unable to deliver it. 4. The tribunal has been provided with a copy of an email that Dr Klimaszewski sent to a GMC Investigation Officer on 13 January 2018 in which he stated: I received all of the correspondence. However, as I informed your colleagues many times that I am not interested in continuing with my professional activity in the UK, so I strongly insist to not send to me any documentation and to strike off/erase my date and my name from your professional registers. 5. The tribunal considers that the GMC and MPTS have made all reasonable efforts to inform Dr Klimaszewski of his hearing today. The tribunal noted that the onus is on Dr Klimaszewski to keep his registered address up to date and inform the GMC of any changes to his registered address. In all the circumstances, the tribunal is satisfied that the GMC has produced evidence which demonstrates that notification of today s proceedings has been properly served upon Dr Klimaszewski in accordance with the General Medical Council (Fitness to Practise) Rules Order of Council 2004 ( the Rules ) and Schedule 4 of the Medical Act 1983 (as amended). Proceeding in absence 6. You then invited the tribunal to proceed in the absence of Dr Klimaszewski pursuant to Rule 31 of the Rules. You advised the tribunal that when determining whether to proceed in the absence of Dr Klimaszewski it must proceed with the upmost care and caution. It was your submission that Dr Klimaszewski is well aware 2
of the nature of today s proceedings and that he has made it clear that he does not wish to participate in today s hearing. Further you submitted that an adjournment would serve no purpose and that the GMC has a duty to ensure that it discharges its regulatory function in an expeditious manner. Finally, you submitted that it is in the public interest to ensure that Dr Klimaszewski s case is heard today. 7. The tribunal was mindful that its discretion to proceed in the absence of a doctor should be exercised with the utmost care and caution, balancing the interests of the doctor with the wider public interest. 8. In all the circumstances, the tribunal has determined that it is appropriate to proceed with today s hearing in Dr Klimaszewski s absence. In reaching this decision the tribunal noted that Dr Klimaszewski s case has to be reviewed before the 19 February 2018, when the suspension currently imposed on his registration will expire. Therefore it is in the public interest to hear his case without further delay. It noted Dr Klimaszewski s email of 13 January 2018 in which he confirmed that he is not interested in continuing with his professional activity in the UK. The tribunal determined that a lack of engagement with his regulator has been a consistent theme in Dr Klimaszewski s case. It therefore determined that no purpose would be served by an adjournment. The tribunal has considered fairness to the GMC and Dr Klimaszewski and has determined that Dr Klimaszewski has voluntarily absented himself from today s proceedings. Background 9. This tribunal does not intend to rehearse the full factual background to Dr Klimaszewski s case, as this is set out in previous determinations, which are a matter of record. Dr Klimaszewski s case was first considered by a Medical Practitioners Tribunal in January 2016 (2016 tribunal). The 2016 tribunal found that the GMC had required Dr Klimaszewski to undertake an assessment of his knowledge of English, namely the International English Language Testing System (IELTS) test. Dr Klimaszewski emailed the GMC stating that he did not plan to pass any language exams and the 2016 tribunal found, therefore, that he had failed to demonstrate the necessary knowledge of English required to practise medicine. 10. The 2016 tribunal took account of the evidence that Dr Klimaszewski s knowledge of English was limited to such an extent that he required additional support from staff to assist him with English. The 2016 tribunal found that he presented a risk to patient safety in the event of an emergency situation and also because he completed medical notes only in Polish. The 2016 tribunal considered that Dr Klimaszewski s lack of knowledge of English and his reliance on other staff to translate documents raised additional concerns about maintaining patient confidentiality. It concluded that Dr Klimaszewski s fitness to practise was impaired by reason of him not having the necessary knowledge of English. The 2016 tribunal determined to suspend Dr Klimaszewski s registration for the maximum period of 12 3
months, in order to afford him the opportunity to improve his English Language skills which was to be evidenced by him obtaining the required IELTS test result. 11. Dr Klimaszewski s case was then reviewed by a Medical Practitioner s Tribunal in January 2017 (2017 tribunal). The 2017 tribunal found that Dr Klimaszewski had not provided any evidence that he had undertaken any remedial action to improve his language skills. They noted that Dr Klimaszewski had demonstrated that he had no wish to remediate, nor engage with the GMC. It considered that Dr Klimaszewski had shown no insight into the gravity of his poor English language skills nor into the potential risk to patient safety as a result of his deficiency. The 2017 tribunal found that Dr Klimaszewski s fitness to practise was impaired by reason of his deficient knowledge of the English language. 12. The 2017 tribunal determined that a further period of suspension would be proportionate in the circumstances of Dr Klimaszewski s case. It determined that this would allow him to undertake the IELTS test and demonstrate that he had fully taken on board the gravity of his insufficient knowledge of the English language and the risk which he posed to patients, as well as to demonstrate that his clinical skills and knowledge were up to date. 13. The 2017 tribunal determined that a tribunal reviewing Dr Klimaszewski s case may be assisted by receiving the following: evidence of completion of an IELTS test, the results of which demonstrate that Dr Klimaszewski has achieved the minimum standards required by the GMC evidence of the measures taken by Dr Klimaszewski during the period of suspension to ensure his continued professional development is up to date, including steps he has taken to maintain his clinical knowledge and skills evidence, for example by way of a reflective statement, demonstrating his reflections on the possible risks that a lack of necessary knowledge of the English language poses to patients any other evidence that Dr Klimaszewski considers will assist the tribunal in reviewing his case. Today s review 14. This tribunal has met to review Dr Klimaszewski s case. It has considered, under Rule 22(1)(f) of the Rules, whether Dr Klimaszewski s fitness to practise is currently impaired by reason of him not having the necessary knowledge of English. In so doing, it has taken into account all of the evidence before it and the submissions made by you on behalf of the GMC. 4
Evidence 15. On 11 October 2017 the GMC wrote to Dr Klimaszewski requesting that he provide the information requested by the 2017 tribunal. The letter was subsequently returned to the GMC on the 13 October 2017 with the words Gone Away noted on the envelope. On the 1 and 6 November 2017 the GMC emailed Dr Klimaszewski at his email address XXX to enquire if he was still using that email address (this is the email address from which Dr Klimaszewski sent his email of 13 January 2018). No response was received from Dr Klimaszewski. On 20 November 2017 the GMC emailed Dr Klimaszewski a copy of the 11 October 2017 letter. An email relayed receipt was received on the same day. Further correspondence was emailed by the GMC to Dr Klimaszewski on the 8 December 2017 and 12 January 2018. To date the only correspondence that has been received from Dr Klimaszewski, since his last hearing in January 2017, is his email of 13 January 2018. GMC Submissions 16. You submitted that given the evidence that the 2016 tribunal heard and Dr Klimaszewski s continued failure to engage with his regulator that Dr Klimaszewski s fitness to practise remains impaired by reason of him not having the necessary knowledge of English. Tribunal Decision 17. The tribunal is aware of its statutory over-arching objective which is to protect, promote and maintain the health, safety and well-being of the public, to promote and maintain public confidence in the medical profession, and to promote and maintain proper professional standards and conduct for the medical profession. 18. The tribunal has considered the evidence which has been presented today, together with the submissions made by you. 19. The tribunal noted that Dr Klimaszewski has not provided any of the information which the 2017 tribunal stated would assist a tribunal reviewing his case, apart from his email of 13 January 2018, in which he stated that he is not interested in continuing with any professional activity in the UK. Dr Klimaszewski has not made any attempt to engage with his regulatory body to remedy his deficiencies. He has not provided any evidence that he has undertaken any remedial action to improve his language skills. The tribunal has concurred with the view of the 2017 tribunal that Dr Klimaszewski continues to show no insight into the gravity of his poor English language skills nor into the potential risk to patient safety as a result of his deficiency. 20. In the 12 months since the 2017 review hearing Dr Klimaszewski has provided no evidence of remedial action in relation to his English language skills. There is no 5
evidence before this tribunal today that Dr Klimaszewski has attained the minimum required level of knowledge of the English language. 21. The tribunal has therefore determined that Dr Klimaszewski s fitness to practise is impaired because he does not have the necessary knowledge of the English language. Determination on Sanction - 29/01/2018 Ms Barlow: 1. Having determined that Dr Klimaszewski s fitness to practise is impaired because he does not have the necessary knowledge of the English language, the tribunal has considered what action, if any, to take in respect of his registration. 2. In so doing, the tribunal has given careful consideration to all the evidence adduced, together with the submissions made by you on behalf of the GMC. GMC Submissions 3. You submitted that the appropriate sanction in Dr Klimaszewski s case is one of indefinite suspension of his registration. You noted how Dr Klimaszewski has failed to engage with the GMC and that he poses a real risk to patients. You referred the tribunal to the emails that Dr Klimaszewski has sent the GMC, since 2016. You noted that the content of the emails are all similar in that Dr Klimaszewski states that he does not want to work in the United Kingdom as a doctor. Further, you submitted that Dr Klimaszewski is nearly eighty years of age and has clearly stated that he is not willing to engage with the regulatory process. Finally, you submitted that the tribunal does not have any evidence before it that Dr Klimaszewski has obtained any insight into the risk that he presents to patients. Tribunal Decision 4. The decision as to the appropriate sanction to impose, if any, is a matter for this tribunal exercising its own judgement. 5. In reaching its decision, the tribunal has taken account of the Sanctions guidance (May 2017). It has borne in mind that the purpose of sanctions is not to be punitive, but to protect patients and the wider public interest, which encompasses the maintenance of public confidence in the profession, and declaring and upholding proper standards of conduct and behaviour. Sanctions are not intended to, but may, have a punitive effect. 6. Throughout its deliberations, the tribunal has applied the principle of proportionality, balancing Dr Klimaszewski s interests with the public interest. 6
No Action 7. The tribunal first considered whether to conclude Dr Klimaszewski s case by taking no action. It noted that Dr Klimaszewski has not provided any evidence that he has addressed any of the serious concerns raised about his language skills by the 2016 and 2017 tribunals. Further the tribunal determined that Dr Klimaszewski s case is not exceptional in a way which would justify taking no action. The tribunal therefore determined that it would not be in the public interest to take no action on Dr Klimaszewski s registration. Conditions 8. The tribunal next considered whether it would be sufficient to impose conditions on Dr Klimaszewski s registration. It has borne in mind that conditions need to be appropriate, proportionate, workable and measurable. In view of Dr Klimaszewski s history of failing to engage with his regulatory body and his stated wish not to engage in the future, the tribunal determined that it was not possible to formulate workable conditions which would serve to meet the overarching objective, in particular to protect patients. The tribunal is therefore satisfied that conditions are not appropriate in Dr Klimaszewski s case. Suspension 9. The tribunal took account of sub paragraph 97 d of the Sanctions guidance which sets out factors that might indicate that suspension may be appropriate: In cases that relate to knowledge of English, where the doctor s language skills affect their ability to practise and there is a risk to patient safety if the doctor were allowed to continue to practise even under conditions. 10. This tribunal considered that this sub paragraph applied to the facts of this case. 11. The tribunal therefore determined that Dr Klimaszewski s registration should be suspended. It was of the view that this is the only sanction which will adequately protect patients and satisfy the overarching objective, given the serious concerns raised about his language skills, consequent risk to patients and lack of engagement with his regulatory body. 12. The tribunal went on to consider whether to direct that the suspension be for a fixed or indefinite period. The tribunal noted that by the end of his current period of suspension, Dr Klimaszewski s registration will have been suspended for just over two years consecutively. The tribunal had regard to paragraph 105 of the Sanctions guidance which states: 7
In cases that relate solely to a doctor s health or language where the doctor s registration has been suspended for at least two years because of two or more successive periods of suspension, the tribunal can suspend the doctor s registration indefinitely. If the tribunal decides to direct indefinite suspension, there is no automatic further hearing of the case. But two years after the indefinite suspension takes effect, the doctor can ask for it to be reviewed 13. The tribunal noted that during the periods that Dr Klimaszewski s registration has been suspended, Dr Klimaszewski has failed to provide any evidence that he has addressed or begun to address the concerns raised. Further there is no evidence that Dr Klimaszewski appreciates the risk that he poses to patient safety. The tribunal has determined that Dr Klimaszewski has been given adequate opportunity to address his deficient English language skills. Accordingly, the tribunal has determined that it is appropriate and proportionate to direct that Dr Klimaszewski s registration be suspended indefinitely. In light of the serious concerns raised about Dr Klimaszewski s English language skills, consequent risk to patients and his lack of engagement with his regulatory body, the tribunal determined that indefinite suspension is the only appropriate sanction to protect patients and the public interest. 14. There will be no automatic further hearing of Dr Klimaszewski s case. However, after a period of two years has elapsed from the date when the indefinite suspension takes effect, he has the right to request a tribunal to review the direction that his registration be suspended indefinitely. 15. The effect of the foregoing direction is that, unless Dr Klimaszewski exercises his right of appeal, his name will be indefinitely suspended from the Medical Register 28 days from the date on which written notice of this decision is deemed to have been served upon him. The sanction of suspension currently imposed on his registration will remain in effect until the appeal period has concluded. If Dr Klimaszewski decides to exercise his right of appeal the sanction currently imposed on his registration will remain in effect until the appeal has concluded. 16. That concludes this case. Confirmed Date 29 January 2018 Mr Richard Kember, Chair 8