(Pakistan) Consideration of impairment not reached

Transcription

1 PUBLIC RECORD Dates: 19/06/ /06/2017 and 13/11/ /11/2018 Medical Practitioner s name: Dr Mohammad Makhdum GMC reference number: Primary medical qualification: Type of case New - Misconduct MB BS 1984 University of Punjab (Pakistan) Outcome on impairment Consideration of impairment not reached Summary of outcome Voluntary erasure Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Mr Martin Jackson Mr Stephen Marr Dr John Garner Tribunal Clerk: Mr David Salad Attendance and Representation: Medical Practitioner: Present and represented: 19/06/ /06/2017. Not present but represented: 27/06/2017 and 13/11/ /11/2018 Medical Practitioner s Representative: Miss Mary O Rourke QC, instructed by Burton Copeland Solicitors GMC Representative: Mr Peter Atherton, Counsel

2 Attendance of Press / Public In accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 the hearing was held partly in public and partly in private. Overarching Objective Throughout the decision making process the tribunal has borne in mind the statutory overarching objective as set out in s1 Medical Act 1983 (the 1983 Act) to protect, promote and maintain the health, safety and well-being of the public, to promote and maintain public confidence in the medical profession, and to promote and maintain proper professional standards and conduct for members of that profession. Determination on Adjournment - 27/06/ In accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 (as amended), the tribunal agreed that an application to adjourn these proceedings made on Dr Makhdum s behalf by Ms O Rourke, QC, be heard in private XXX. However, the tribunal considered that it was in the public interest that the public be aware of its decision. A redacted public version of this determination will therefore also be produced. 2. On day seven of this hearing, Ms O Rourke made an application under Rule 29(2) to adjourn this hearing for the remainder of its current listing, as Dr Makhdum is unable to attend XXX. The hearing had reached the point where, apart from reexamination of one witness, the GMC had presented all of its evidence. Dr Makhdum would have been starting to give his evidence today. Submissions 3. XXX. She submitted that XXX this hearing should be adjourned as the doctor was likely to be unable to attend for at least two to six weeks. 4. You, on behalf of the GMC, said that you had no submissions to make on the matter at this stage and that you had no issue with anything Ms O Rourke had said. XXX. The tribunal s decision 5. In its deliberations on Ms O Rourke s application to adjourn, the tribunal exercised its own judgement, balancing the public interest in the expeditious determination of this matter with Dr Makhdum s interests. 6. XXX

3 7. In all the circumstances the tribunal considered that it was in the interests of justice that, with Dr Makhdum s representatives not in a position to put the case for the doctor at the present time due to his current inability to attend, the hearing be adjourned. It was satisfied that the public would consider this to be a sensible approach that was fair to all parties. 8. XXX. The tribunal directed that a Case Manager review the situation at a meeting in one month s time, with dates for a resumption of the hearing agreed administratively as soon as practicable thereafter. 9. The hearing is therefore adjourned. Determination on Application for Voluntary Erasure - 16/11/ In accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 (as amended), the Tribunal agreed that an application for Voluntary Erasure made on Dr Makhdum s behalf by Miss O Rourke, QC, be heard in private XXX. This determination will therefore be handed down in private session. However, the tribunal considered that it was in the public interest that the public be aware of its decision. A redacted public version of this determination will therefore also be produced after the hearing in line with MPTS processes. Background 2. Dr Makhdum gained his Primary Medical Qualification in 1984 at the University of the Punjab, Pakistan. He practised in the UK from 1990, with a specialty of Psychiatry. At the time of the events leading to the Allegation in , Dr Makhdum was employed as a Consultant Psychiatrist by Suffolk NHS Mental Health Partnership Trust ( Suffolk MHPT ) from 2 May 2007 to 30 December 2010 and, following a restructuring of national health services, from 30 December 2010 December 2012 by Norfolk and Suffolk NHS Foundation Trust ( NSFT ). The Allegation in the case relates to concerns raised about Dr Makhdum s conduct through his involvement with arrangements for the provision of care for adults in the community following their discharge from secure units. 3. On or around 21 June 2010 Dr Makhdum was appointed by Mr A (Assistant Director for Mental Health, Learning Difficulties and Collaborative Commissioning for South East Essex Mental Health Team) to provide clinical management advice to South East Essex Primary Care Trust ( SEE PCT ) in respect of the appropriateness for discharge of patients from low/medium secure health services into community based care. 4. Dr Makhdum had devised a model of care called Community Rehabilitation and Transitional Living Model ( CRTL ), which he described as:

4 an innovative and novel model for those psychiatric patients who have been hospitalised for the long term but who have been assessed as suitable for life in the community under the CRTL model this model assists in significantly improving the patients quality of life by allowing them to integrate back into the community, only where it is safe for them to do so, whilst saving the NHS phenomenal amounts of money. 5. Between August 2010 and June 2011 Dr Makhdum submitted psychiatric assessments to SEE PCT in which he recommended transition into CRTL for nine patients. CRTL was provided by two agencies: Focus Care Agency Ltd ( Focus ) and Vital Healthcare Services Limited ( Vital ). 6. As set out at paragraphs 5-8 of the Allegation, Dr Makhdum is alleged to have had a number of interests in, and associations with, Focus and Vital, along with a number of other limited companies. It is further alleged that he failed to formally declare these interests and associations as appropriate to SEE PCT and Suffolk MHPT/NSFT. 7. Dr Makhdum s interests in and associations with Focus and Vital became a cause for concern and complaint, leading to disciplinary proceedings against him by NSFT. He was subsequently dismissed from his post with NSFT on 14 November In 2012, he was also investigated by NHS Protect in relation to allegations of fraud due to non-disclosure of interests. In March 2016, the Crown Prosecution Service ( the CPS ) decided not to prosecute Dr Makhdum in relation to the allegations. The GMC s own investigation into the matter, which had awaited the conclusion of any local and criminal investigations, then led to these proceedings. The Allegation and the Doctor s response 8. The Tribunal convened to consider Dr Makhdum s case on 19 June The Allegation made against Dr Makhdum was as follows: That being registered under the Medical Act 1983 (as amended): 1. You were employed as a Consultant Psychiatrist: a. from 2 May 2007 to 30 December 2010 by Suffolk NHS Mental Health Partnership Trust ( Suffolk MHPT ); Admitted and found proved b. from 30 December 2010 to December 2012, by Norfolk and Suffolk NHS Foundation Trust. Admitted and found proved South East Essex Primary Care Trust ( SEE PCT ): 2. On or around 21 June 2010 you were appointed by Mr A, Assistant Director for Mental Health, Learning Difficulties and Collaborative Commissioning for

5 South East Essex Mental Health Team, to provide clinical management advice to SEE PCT in respect of the appropriateness for discharge of patients from low/medium secure mental health services into community based care. Admitted and found proved 3. You submitted psychiatric assessments to SEE PCT in which you recommended transition into Community Rehabilitation Transition Living ( CRTL ) for the following patients: a. Patient B (report dated 12 August 2010); Admitted and found proved b. Patient C (report dated 30 August 2010); Admitted and found proved c. Patient D (report dated 30 August 2010); Admitted and found proved d. Patient E (report dated 16 September 2010); Admitted and found proved e. Patient F (report dated 12 October 2010); Admitted and found proved f. Patient G (report dated 15 November 2010); Admitted and found proved g. Patient H (report dated 11 April 2011); Admitted and found proved h. Patient I (report dated 9 May 2011); Admitted and found proved i. Patient J (report dated 17 June 2011). Admitted and found proved 4. CRTL was provided by two agencies: a. Focus Care Agency Ltd ( Focus ); Admitted and found proved b. Vital Healthcare Services Limited ( Vital ). Admitted and found proved 5. You had the following interests in, and/or associations with, Focus and/or Vital: a. Ms K, your daughter, was a director of Blackstone Healthcare Ltd ( Blackstone ); Admitted and found proved

6 b. by an agreement dated 6 September 2010 you agreed with Mr L that: i. you and Mr L would have an equal 50% share-holding in Blackstone; Admitted and found proved ii. Blackstone would own a 90% share in Focus; Admitted and found proved iii. Blackstone would own the 75% shareholding held by you in Vital; Admitted and found proved iv. you were responsible for referrals; Admitted and found proved c. you contributed financially to the purchase of a property at 1A The Crescent, Ipswich, jointly with Mr L which was used by Focus to house service users; Admitted and found proved d. you owned a property at 6 Pownall Road, Ipswich, which was used as business premises for Vital; Admitted and found proved e. you owned a property at 29, Tye Road, Ipswich, which was used as business premises for Vital; Admitted and found proved f. in subsequent agreements made with Mr L you agreed that: i. you would be paid 50% of any profits made by Focus; Admitted and found proved ii. Focus would use Vital to provide staff for homes that Focus subsequently set up; Admitted and found proved g. in or around February to March 2011 Vital provided staff to work in Focus facilities at: i. 1A, The Crescent, Ipswich; Admitted and found proved ii. Fitzwarren, Southend-on-Sea; Admitted and found proved h. in respect of paragraph g above, Focus paid Vital for the provision of such staff; Admitted and found proved i. you advanced the following loans: i. on or about 18 October ,000 to Focus; Admitted and found proved ii. on or about 20 October ,000 to Focus; Admitted and found proved

7 6. You: iii. on or about 4 April ,000 to Mr L; Admitted and found proved iv. approximately 60,000 to Vital; Admitted and found proved j. you received payment from Focus representing your share of profits from the business of Focus; Admitted and found proved k. you had an arrangement with Mr A to pay him 40% of the monies paid to you by Focus; To be determined l. you gained financially from payments made by SEE PCT to Focus and Vital for placements made by SEE PCT to CTRL on your recommendation; Admitted and found proved m. Ms K was a: i. director of Vital from 20 June 2009 to 19 July 2011; Admitted and found proved ii. shareholder in Vital; Admitted and found proved n. you received payment from Vital; Admitted and found proved o. you were a director of Rez Q Associates Limited ( Rez Q ) from 18 February 2011; Admitted and found proved p. by an undated memorandum of agreement, Focus agreed to pay Rez Q 13.5% of the total cost of care package per week per client for all clients referred by Rez Q staff to Focus for the provision of care packages; Admitted and found proved a. failed, formally, to declare to SEE PCT: i. your interests in and/or associations with Focus as set out at paragraphs 5(a), (b)(i) (ii), (iv), (c), (f), (g), (h), (i)-(i)(ii)(iii), (j), (k), (l), (o), (p) above; Admitted and found proved in regard to paragraphs 5(a), (b)(i) (ii), (iv), (c), (f), (g), (h), (i)-(i)(ii)(iii), (j), (l), (o), (p) To be determined in regard to paragraph 5(k)

8 ii. your interests in and/or associations with Vital as set out at paragraphs 5(a), b(i) (iii) (iv), (d), (e), (f)(ii), (g), (h), (i)-(iii)(iv), (l), (m), (n) above; Amended under Rule 17(6) Admitted and found proved in full as amended b. knew that you were obliged to declare the interests referred to above to SEE PCT in respect of: i. Focus; To be determined ii. Vital; To be determined c. ought to have known that you were obliged to declare the interests referred to above to SEE PCT in respect of: i. Focus; Admitted and found proved ii. Vital. Admitted and found proved Suffolk MHPT/ Norfolk and Suffolk NHS Foundation Trust 7. On or about 13 March 2011 you submitted to Suffolk MHPT a declaration of an interest by a trust employee ( the Suffolk declaration of interest ). Admitted and found proved 8. In the Suffolk declaration of interest you failed, adequately or at all, to declare the following relevant interests of your own, namely: a. that you were a director of, and the sole shareholder in, Rez Q Associates Limited; Admitted and found proved b. that you were a director of, and the sole shareholder in, Mental Health Solutions (Factory) Limited; Admitted and found proved c. that you were a director of AM Distributions (Suffolk) Limited; Admitted and found proved d. that you were the director of, and sole shareholder in, CRTL Ltd; Admitted and found proved e. that you were engaged to provide clinical management advice to SEE PCT; Admitted and found proved f. the interests set out at paragraphs 5 (b)-(l), 5(o) and 5(p) above. Admitted and found proved

9 9. In the Suffolk declaration of interest you failed, adequately or at all, to declare the following relevant interests of Ms K, namely that she was a director of: a. Carehomes Anglia Limited; Admitted and found proved b. Blackstone; Admitted and found proved c. and shareholder in, Vital. Admitted and found proved 10. In respect of the interests described at paragraphs 8 and 9 above you: a. knew that you were obliged formally to declare them to: i. Suffolk MHPT; To be determined ii. Norfolk and Suffolk NHS Foundation Trust; To be determined b. ought to have known that you were obliged formally to declare them to: i. Suffolk MHPT; Admitted and found proved ii. Norfolk and Suffolk NHS Foundation Trust. Admitted and found proved 11. Your conduct as set out at paragraphs 6, 8, 9 and 10 above was: a. misleading; Admitted and found proved except insofar as 6(a)i refers to 5(k) which is to be determined b. dishonest. To be determined And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct. To be determined 9. Dr Makhdum attended the hearing with legal representation. At the outset of the proceedings Miss O Rourke QC made admissions on behalf of Dr Makhdum to 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.

10 The Facts to be determined 10. In light of Dr Makhdum s response to the Allegation made against him, the Tribunal was required to determine whether Dr Makhdum had an arrangement with Mr A to pay him 40% of the monies paid to Dr Makhdum by Focus. Further it had to determine whether or not Dr Makhdum had failed, formally, to declare to SEE PCT that he had made such an arrangement and whether his conduct in doing so was misleading. It had to determine whether Dr Makhdum knew that he was obliged to declare his interests with Focus and Vital to SEE PCT. In addition the Tribunal had to determine whether Dr Makhdum knew he was obliged formally to declare his interests (as set out at paragraphs 8 and 9 of the Allegation above) to Suffolk MHPT and Norfolk and Suffolk NHS Foundation Trust. 11. In addition, it had to determine whether Dr Makhdum s conduct with regard to failures to declare various interests (as set out at paragraphs 6, 8, 9 and 10 of the Allegation above) were dishonest. The Outcome of applications made during the Facts stage 12. The Tribunal granted Mr Atherton s application, made pursuant to Rule 17(6) of the Rules to amend sub paragraph 6 (a)(ii) of the Allegation. The Tribunal s full decision on the application is included at Annex A. 13. The Tribunal granted Mr Atherton s applications, made pursuant to Rule 34 (13) and (14), for several witnesses to give evidence via video and telephone links. The Tribunal s full decision on the applications is included at Annex B. 14. The Tribunal rejected Mr Atherton s application, made pursuant to Rule 34(1) of the Rules, to admit two reports which he wished to put to a witness in reexamination. The Tribunal granted Mr Atherton s application, made pursuant to the same Rule, to admit a number of s and a further report which he wished to put to another witness. The Tribunal s full decisions on these applications are included at Annex C. Factual witness evidence 15. From June 2017, the Tribunal heard oral evidence from eight witnesses on behalf of the GMC, all of whom had provided witness statements: Mr L, Chief Executive Officer, Trust Care Management Limited, and Focus Care Agency Limited (in person); Mrs C, Managing Director, Trust Care Management Limited, and Focus Care Agency Limited (in person); Mr D, Anti-Fraud Lead, NHS Protect (in person);

11 Mr E, Company Secretary, Norfolk and Suffolk NHS Foundation Trust (NSFT) the Trust (by video link); Mr F, Clinical Support Worker and shareholder, Vital Healthcare (by telephone link); Dr H, Consultant Psychiatrist, Rochford Hospital (by telephone); Mr I, Service Manager and director, Vital Healthcare (in person); Ms J, Director of Corporate Services, Mid Essex Clinical Commissioning Group (by video and telephone link). 16. One witness, Mr E, was due to return to provide further evidence on 27 June 2017, following which the GMC case was due to be closed. 17. In addition the Tribunal received documentary evidence, including, but not limited to: documents sourced as part of the local, NHS Protect and CPS investigations, including interviews with Dr Makhdum, certificates, leaflets, invoices, financial statements, contracts, redacted patient reports, correspondence and other information relating to companies in which Dr Makhdum had an interest; Dr Makhdum s witness statement, reflective statement and CV; correspondence and other documents related to companies in which Dr Makhdum had an interest, adduced by Dr Makhdum s representatives. Adjournment of the first listing and events between the listings 18. As detailed in the Tribunal s determination on adjournment, on 27 June 2017 Miss O Rourke attended the hearing and informed the Tribunal that Dr Makhdum was unable to attend the proceedings further at that point XXX. The Tribunal determined to adjourn the proceedings and directed that an MPTS Case Manager review the situation a month later, with a view to relisting the hearing. 19. Following the subsequent review by the Case Manager, the hearing was relisted for dates in February, March and April However, in January 2018, Dr Makhdum s representatives, Burton Copeland Solicitors, applied for these dates to be postponed. The application to the MPTS Case Manager set out an update on Dr Makhdum s situation, and stated that he was unable to attend the re-listed dates. 20. XXX. 21. XXX.

12 22. Taking into account the circumstances, the MPTS Case Manager postponed the spring 2018 dates, and a new listing was subsequently agreed to take place between November Application for Voluntary Erasure 23. Approximately three weeks before the new listing was due to begin, Dr Makhdum made an application for Voluntary Erasure to the GMC (dated 20 October 2018). The application was subsequently referred to the Tribunal by a GMC Assistant Registrar, Mr K, via an dated 6 November The Tribunal reconvened in camera for a reading day on 13 November 2018 to refresh itself with the relevant hearing documents and transcripts, the hearing having been adjourned for some 16 months. By agreement of the parties, it was also provided with Dr Makhdum s application for Voluntary Erasure and supporting documents. 25. The Tribunal took into account Regulation 3(8) of the GMC (Voluntary Erasure and Restoration following Voluntary Erasure) Regulations 2004, as amended ( the Regulations ). Regulation 3(8) reads as follows: Where, on the date the Registrar receives an erasure application, an allegation against the practitioner has been referred to the MPTS for them to arrange for it to be considered by a under the Fitness to Practise Rules and the hearing before the has commenced, the Registrar shall refer the application to the MPTS for them to arrange for it to be determined by the, and the application shall be determined by the accordingly. 26. The Tribunal was satisfied that Mr K s dated 6 November 2018 constituted the referral required by Regulation 3(8). It therefore considered the application which included the following: a completed GMC Voluntary Erasure application form ( UD5 form); a GMC Provision of medical services statement ( UD8 form) a letter, dated 12 October 2018, written by Burton Copeland Solicitors and providing supporting information for the application; letters dating between 30 January October XXX. Submissions 27. Miss O Rourke QC, acting on behalf of Dr Makhdum, made two applications, namely for adjournment of these proceedings, and Voluntary Erasure of the doctor s name from the Register. XXX. She submitted that XXX the Tribunal could not now proceed with the facts stage of the hearing in his absence. She said that if the

13 Tribunal determined not to grant his application for Voluntary Erasure, it would need to adjourn the hearing for a further period, but that XXX, this would serve no purpose. 28. Miss O Rourke referred the Tribunal to the cases of XXX. Nevertheless, despite the seriousness or high profile nature of these cases, the High Court had endorsed the route of Voluntary Erasure as an appropriate course to take in these circumstances. 29. She submitted that there was sufficient evidence before the Tribunal to grant Dr Makhdum s application for Voluntary Erasure. XXX. 30. She said that, in light of Dr Makhdum s XXX age, the likelihood of his returning to practise was nil. She stated that he no longer had a job practising medicine, having left it more than a year ago. She reminded the Tribunal that there were no issues regarding the protection of patients in Dr Makhdum s case, with the Allegation instead concerning his probity with regard to professional dealings. She stated that, due to Dr Makhdum s multiple admissions at the outset of the proceedings, there were few facts left in dispute, including a paragraph alleging dishonesty, which turned on Dr Makhdum s own evidence. With regard to public confidence and the seriousness of the alleged misconduct, she said that Dr Makhdum s case did not involve the death of a patient as seen in XXX or sexual misconduct, as seen in other cases which had been heard by the High Court and subsequently concluded in Voluntary Erasure. She submitted that Voluntary Erasure could be granted without adversely impacting public confidence. 31. Mr Atherton, Counsel, on behalf of the GMC, told the Tribunal that the GMC took a neutral position with regard to the application. He said that, as set out by the GMC s position was immaterial and should not influence the Tribunal. He said that although all cases were fact specific, the principles emerging from the cases referred to by Miss O Rourke were not controversial. He submitted that the Tribunal is charged with carrying out a detailed assessment of the application in accordance with the guidance to which it had been referred and must act fairly and provide a reasoned decision based on evidence. 32. In response to a question from the Tribunal, it was clarified by the parties that the proper approach to determining these applications was for the Tribunal firstly to decide whether or not to grant Voluntary Erasure. Only if that application were refused would the Tribunal then need to consider whether to adjourn these proceedings further. The Tribunal s approach 33. The decision as to whether or not to accede to Dr Makhdum s application for Voluntary Erasure is a matter for this Tribunal alone to determine, exercising its own

14 judgment. In reaching a decision on this matter, the Tribunal had regard to the Regulations, and other relevant guidance, including the GMC document: Guidance on making decisions on voluntary erasure applications (published April 2014) ( the Guidance ). It had regard to all the documentary evidence provided to it on behalf of the GMC and on Dr Makhdum s behalf, including his completed application form for Voluntary Erasure. It also took into account the submissions made by both Counsel. 34. The Legally Qualified Chair reminded the tribunal that, when deciding whether or not to grant Dr Makhdum s application for Voluntary Erasure it needed, according to the Guidance, to exercise its judgment having regard to the following, namely: XXX and likelihood of him returning to practise; and the public interest. It bore in mind that the public interest as set out in the Guidance incorporates three elements: The protection of patients and the public generally from doctors whose fitness to practise is impaired. The maintenance and promotion of public confidence in the medical profession. The maintenance and promotion of public confidence in the GMC s performance of its statutory functions. The Tribunal s decision XXX and likelihood of return to practise 35. The Tribunal first deliberated on the reasons for Dr Makhdum s continued absence from these proceedings. XXX. 36. XXX. 37. XXX. 38. The Tribunal considered that it is confronted by circumstances in which there is no reasonable likelihood that Dr Makhdum will be able to attend the hearing at any point in the foreseeable future and give evidence, subjecting himself to rigorous cross examination around an Allegation which includes dishonesty, XXX. 39. Although the Tribunal was not initially considering the application to adjourn these proceedings, it was of the view that simply adjourning this already part-heard case for a further period was not an appropriate option. It was of the view that

15 proceeding with the hearing without Dr Makhdum being able to participate in any meaningful manner, including not being able to give evidence with regard to the serious Allegation against him, would not be in the interests of justice. 40. In the light of the evidence provided to it, the Tribunal was satisfied that Dr Makhdum s inability to attend this reconvened hearing is entirely genuine. It considered it to be of significance that he attended the first listing in June 2017 and made numerous admissions, including to paragraphs stating that his actions were misleading. This is potentially a serious matter. Further, Dr Makhdum gave every appearance that he was about to give oral witness evidence in his defence at the June 2017 hearing. The Tribunal considered that Dr Makhdum has in no sense hidden from the Allegation against him. Rather, the unfortunate circumstances that began in June 2017 and have affected XXX Dr Makhdum XXX since then provide compelling evidence as to why he is unable to attend the hearing further. 41. The Tribunal was satisfied that the chance that Dr Makhdum will seek to practise medicine again is very low. It took into account that he has made this application at a time which would constitute a natural end to his career. It noted that he is approaching 62 years old and has practised for over 35 years. The Tribunal has been provided with evidence that he has not worked for the last year, that he is effectively retired, and is not financially dependent on continuing to practise medicine for an income. Instead he XXX, in the future, wishes to pursue non-clinical interests including voluntary work and writing. XXX, the Tribunal considered that Dr Makhdum s stated view that he does not wish to practise medicine again XXX is genuine. The public interest 42. The Tribunal noted that no risk to the safety of patients or the public generally was alleged by the GMC in this case. It bore in mind that any risk to the public that could be inferred from a lack of probity in a doctor would be entirely negated by the erasure of that doctor from the register and their ceasing to practise entirely. The Tribunal was acutely conscious of the need to maintain and promote public confidence in the medical profession, and in the GMC s performance of its statutory functions. The Tribunal noted that paragraph 16 of the Guidance states as follows: 16 If the allegations are primarily about misconduct, a conviction or a determination concerning the doctor s conduct, there are more likely to be arguments in favour of refusing the application for voluntary erasure. This is particularly likely to be the case if the allegations fall within the categories for which there is a presumption of impaired fitness to practise. In these particular circumstances, voluntary erasure is only likely to be appropriate in exceptional circumstances

16 43. The Tribunal took into account that dishonesty in a doctor is a serious matter. All cases are fact-specific, and no dishonesty has been admitted or found proved in this case. However, if the Tribunal were to proceed and find proved that Dr Makhdum had acted dishonestly that could well, along with the already admitted facts, amount to both misconduct and impaired fitness to practise. The Tribunal was nevertheless satisfied, when taking into account all the circumstances, including XXX, his previous full engagement in these proceedings, XXX, that there are exceptional circumstances in this case that do make it appropriate to allow Voluntary Erasure. 44. The Tribunal noted that, should Dr Makhdum make a future application for his name to be restored to the Medical Register, he would need to do so in the knowledge that these matters have been thoroughly documented and would be carefully considered by decision makers as part of any application for restoration he made. The Tribunal considered that he would almost inevitably face a further which would be tasked with deciding whether or not to restore his name to the Medical Register. This is not a case in which the evidence of GMC witnesses will be affected by the passage of time. The GMC case was, barring a very discreet area of evidence from a single witness, effectively completed in full. Witnesses have been comprehensively cross-examined and answered Tribunal questions, and their evidence is fully documented in five days of transcripts. Any future decision makers would have access to the evidence provided to this Tribunal. Dr Makhdum would also be likely to be expected to provide evidence himself in response to the paragraphs of the Allegation which remain outstanding, and as to the conduct to which he has admitted. 45. The Tribunal took into account that the Allegation is based on events which occurred in Since that time, investigations have been undertaken by Dr Makhdum s former employer (NSFT), NHS Protect, the Crown Prosecution Service, and the GMC. It is clear that this matter has been subject to a great deal of scrutiny by a number of authorities over some seven eight years. The Tribunal is of the view that the GMC has in any event performed its statutory functions as a regulator by investigating these matters, bringing the case before a Medical Practitioners Tribunal and presenting five days of evidence on the facts of the case XXX. 46. In conclusion, the Tribunal was of the view that, if a properly informed member of the public were fully aware of the exceptional circumstances present in this case, their confidence in both the medical profession and the GMC s performance of its statutory functions would not be damaged by the granting of Dr Makhdum s application for Voluntary Erasure. 47. In all the circumstances, the Tribunal was satisfied that it is right to agree to Voluntary Erasure and therefore granted Dr Makhdum s application. Accordingly, Dr Makhdum s name will be erased from the Medical Register forthwith. The

17 Registrar will notify him of this outcome as soon as is reasonably practicable, in accordance with Regulation 3(9) of the Regulations. 48. As this Tribunal has granted Dr Makhdum s application for Voluntary Erasure, it has not therefore been necessary for the Tribunal to go on to determine Miss O Rourke s other application to adjourn these proceedings XXX. 49. That concludes this case. Confirmed Date 16 November 2018 Mr Martin Jackson, Chair

18 Annex A Oral decision given: 19 June 2017 Written decision handed down: 16 November 2018 Application to Amend the Allegation 1. At the outset of the hearing, Mr Atherton, acting on behalf of the General Medical Council ( GMC ), made an application under rule 17(6) of the Rules to correct a typographical error in sub paragraph 6aii of the allegation through the insertion of a word: 1. You: a. failed, formally, to declare to SEE PCT: i. ii. your interests in and/or associations with Vital as set out at paragraphs 5(a), b(i) (iii) (iv), (d), (e), (f)(ii), (g), (h), (i)-(iii)(iv), (l), (m), (n) above; 2. Miss O Rourke did not oppose the amendment. 3. The tribunal determined that the proposed amendment would correct a typographical error and no injustice would result from it. It therefore acceded to Mr Atherton s application.

19 ANNEX B Oral decisions given: June 2017 Written decision handed down: 16 November 2018 Applications under Rule 34 (13) and (14) 1. Mr Atherton applied under Rule 34 (13) and (14) for a number of witnesses, namely Mr D, Mr F, Mr E, Ms J and Dr H, to appear by either video or telephone link. He submitted that, due to the distance that each witness would need to travel to attend in person to give evidence on discreet topics, the most suitable and expeditious manner of them giving evidence within the GMC s witness timetable was via video or telephone link. 2. Miss O Rourke did not object to the applications. 3. The tribunal acknowledged the agreement of both parties on the application. It was of the view that, given the circumstances described by Mr Atherton, it was in the interests of justice for these witnesses to give evidence via video or telephone link and this would allow the hearing to proceed expeditiously.

20 ANNEX C Oral decisions given: June 2017 Written decision handed down: 16 November 2018 First application under Rule 34 (1) 1. On day four of the hearing (22 June 2017), Mr Atherton, on behalf of the GMC, made an application under Rule 34(1) of the Rules for the admission of two documents to be used in the re-examination of a witness, Mrs C. The first document was a report, dated 5 April 2011, regarding a patient about whom Mrs C had been asked questions in relation to a report that she had prepared dated 11 March The second document was a report dated 9 May 2011, completed by another witness, Mr I of Vital Healthcare, regarding an assessment of another patient on 20 April Mr Atherton submitted that he sought to adduce these documents in order to re-examine Mrs C to ask questions regarding her knowledge of the Community Rehabilitation and Transitional Living ( CRTL ) Model as at the time that she prepared her report on 11 March Miss O Rourke submitted that, whilst she had no objection to the documents being admitted per se, they should not be used as the basis for re-examination of Mrs C. She said that any questioning on the documents was relevant for Dr Makhdum, rather than in re-examination to Mrs C. 4. The Tribunal took account of Rule 34(1) which states: 34. (1) The Committee or a Tribunal may admit any evidence they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a court of law. 5. The Tribunal considered that, whilst it may be relevant to ask whether the report completed by Dr Makhdum on 9 May 2011 was in a standard form or not, it noted that the report postdates the report done by Mrs C on the patient by some two months. The report on Vital that appeared to be completed by Mr I is actually a report completed by somebody completely different. The Tribunal therefore considered that that report would not be relevant in this case in any event. 6. Allowing for the possibility of some relevance in relation to the issue that Mr Atherton sought to re-examine upon in relation to the evidence of Mrs C, the

21 Tribunal then deliberated on whether it was fair to allow that report by Dr Makhdum of 9 May 2011 to be put to her as a document in re-examination. Given that the cross-examination focused upon Mrs C s knowledge of CRTL as at 11 March 2011 when she prepared her report on the patient, following an assessment two days before, it was not satisfied that it would be fair to allow a post-dated document for an entirely separate patient to be put to her in re-examination to try and seek to elucidate any evidence about her knowledge of CRTL as at 11 March The Tribunal therefore directed that neither of the documents be put to Mrs C, although it appreciated that the documents may be adduced at a late stage to be put to other witnesses, including Dr Makhdum. Second application under Rule 34 (1) 8. On day five of the hearing (23 June 2017), Mr Atherton, on behalf of the GMC, made an application under Rule 34(1) of the Rules for the admission of two documents which he wished to put to a witness, Dr H. One was a set of s which was uncontroversial and admitted by agreement of the parties. The second was a report referred to in Dr H s witness statement. 9. Miss O Rourke objected to the admission of the report at this stage on the grounds that it was not relevant to any of the matters the Tribunal would have to consider and said that, if the Tribunal were to receive it, then the proceedings would need to be adjourned so far as the evidence of Dr H is concerned until the following week so she could have an opportunity to re-read the report and take full instructions upon it from Dr Makhdum. 10. Taking into account Rule 34(1) as set out above, the Tribunal noted that in Dr H s statement he referred to concerns about the transparency of the process given Dr Makhdum s conflict of interest with regard to his involvement with Vital Healthcare. The Tribunal considered that the report itself was potentially relevant to the case in connection with the issue of dishonesty. With regard to fairness, the Tribunal considered that the report had already been served upon Dr Makhdum and his representatives by the GMC. The Tribunal understood that it had been removed from the GMC bundle at the request of Dr Makhdum s representatives some time prior to the commencement of the hearing, so it was not a document of which Dr Makhdum was unaware; indeed he was the author of it. On that basis, the Tribunal determined that it would be fair for it to receive this document at that stage because it may also assist in clarifying what the basis for Dr H s concern about conflict of interest actually was because he did not clarify that in his statement. 11. The Tribunal therefore determined to accede to Mr Atherton s application.