PUBLIC RECORD. Record of Determinations Medical Practitioners Tribunal. Dates: 15/01/ /01/2018 Medical Practitioner s name: Dr Baldeep AUJLA

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1 PUBLIC RECORD Dates: 15/01/ /01/2018 Medical Practitioner s name: Dr Baldeep AUJLA GMC reference number: Primary medical qualification: Type of case New - Conviction / Caution New - Misconduct MB BS 2010 University of London Outcome on impairment Impaired Impaired Summary of outcome Suspension, 4 months. Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Mr Leighton Hughes Mrs Jillian Alderwick Dr Timothy Ward Tribunal Clerk: Ms Rachel Barrett Attendance and Representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Present and represented Mr Andrew Hurst, Counsel, instructed by RadcliffesLeBrasseur Ms Susana Kitzing Allegation and Findings of Fact Paragraph One Between 31 July 1997 and 31 December 2010, you were registered as a Pharmacist with the General Pharmaceutical Council ( GPhC ) with the registration number Admitted and found 1

2 Paragraph Two Between 7 January 2011 and 29 May 2011, you submitted Responsible Pharmacist logs to your employer, which falsely represented that: a. the GPhC registration numbers set out in Schedule 1 were your GPhC registration numbers; Admitted and found b. the GPhC registration number related to an active registration held by you; Admitted and found c. you were qualified entitled to work as a Responsible Pharmacist. Admitted and found Paragraph Three You knew that: a. those GPhC registration numbers referred to at paragraph 2a were not yours; Admitted and found b. the GPhC registration number referred to at paragraph 2b was not active; Admitted and found c. you were not qualified entitled to work as a Responsible Pharmacist. Admitted and found Paragraph Four Between 10 June 2011 and 11 August 2013, on the dates set out in Schedule 2, you: a. were acting as the Responsible Pharmacist for a pharmacy; Admitted and found b. failed to complete a Responsible Pharmacist log. Admitted and found Paragraph Five In August 2013, you signed a locum agreement with Lloyds Pharmacy Limited, in which you falsely represented that: a. you were a registered Pharmacist; Admitted and found b. the GPhC registration number was your GPhC registration number. Admitted and found 2

3 Paragraph Six The representations you made at paragraph 5 were: a. untrue; Admitted in relation to 5(a) and 5(b) b. you knew to be untrue. Admitted in relation to 5(b) Paragraph Seven On 23 June 2014, at Basildon Magistrates Court you were convicted of having been required to provide a specimen or specimens of breath for analysis by means of a device of a type ap by the Secretary of State pursuant to section 7 of the Road Traffic Act 1988 in the course of an investigation into whether you had committed an offence under section 3A, 4 or 5 thereof failed without reasonable excuse to do so contrary to: Admitted and found a. Section 7(6) of the Road Traffic Act 1988; Admitted and found b. Schedule 2 to the Road Traffic Offenders Act Admitted and found Paragraph Eight On 23 June 2014, you were sentenced to a: a. fine of 600; Admitted and found b. 12 month disqualification from holding or obtaining a driving licence. Admitted and found Paragraph Nine You failed to notify the GMC without delay that you had been: a. charged with the criminal offence detailed in paragraph 7; Admitted and found b. convicted of the criminal offence detailed in paragraph 7. Admitted and found Paragraph Ten On 1 August 2014, you informed ID Medical that the GMC investigation ( the Investigation) disclosed to you on the same date was in relation to you moving your car in a car park whilst being over the limit. Admitted and found 3

4 Paragraph Eleven The information you gave to ID Medical, referred to in paragraph 10, was: a. untrue; Admitted and found b. you knew to be untrue. Admitted and found Paragraph Twelve On 1 August 2014, you were requested to provide the GMC with your employer details and inform the GMC if you changed employers during the Investigation. You failed to inform the GMC that you worked for: a. Barking, Havering and Redbridge University NHS Hospitals Trust, through Total Assist Recruitment, between: i. 3 and 28 November 2014; Admitted and found ii. 23 March 2015 and 26 June 2015; Admitted and found b. Hinchingbrooke Hospital between 19 October 2014 and 23 October 2014, through ID Medical; Admitted and found c. Southend University Hospital, through ID Medical, between: i. 27 October 2014 and 31 October 2014; Admitted and found ii. 1 December 2014 and 30 January 2015; Admitted and found iii. 12 August 2015 and 21 August 2015; Admitted and found d. Medway Maritime Hospital between 2 and 27 February 2015, through Total Assist Recruitment; Admitted and found e. Kent & Canterbury Hospital, through: i. The Locum Consultancy, between: a. 13 April 2015 and 15 May 2015; Admitted and found 4

5 b. 1 June 2015 and 31 August 2015; Admitted and found ii. ID Medical, between 1 September 2015 and 31 January Admitted and found Paragraph Thirteen Your actions in respect of paragraphs 2-6 and were dishonest. Paragraph Fourteen On 16 September 2014, at Canterbury Magistrates Court you were summarily convicted of practising as a Pharmacist whilst not being entered as such under Part 1 or Part 4 of the Register established and maintained by the Registrar of the GPhC, contrary to: a. s38(4)(a) and (8) of the Pharmacy Order Admitted and found Paragraph Fifteen On 16 September 2014, you were sentenced to pay a fine of Admitted and found Attendance of Press / Public The hearing was all heard in public. Determination on Facts - 18/01/2018 Applications to Amend the Allegation 1. At the outset of the hearing, Ms Kitzing, on behalf of the GMC, made an application to amend various paragraphs of the allegation under Rule 17(6) of the GMC (Fitness to Practise) Rules 2004 ( the Rules ) as follows: Paragraph 2(c) c. you were qualified to work as a Responsible Pharmacist. and Paragraph 3(c) you were not qualified to work as a Responsible Pharmacist. to be amended to read: Paragraph 2(c) 5

6 d. you were entitled to work as a Responsible Pharmacist. and Paragraph 3(c) you were not entitled to work as a Responsible Pharmacist. 2. Ms Kitzing submitted that this was a more accurate reflection of the allegation, which should be amended and would not result in any injustice to you. Mr Hurst, on your behalf, did not object to these amendments. 3. Ms Kitzing subsequently applied to amend the allegation by adding a new element to Paragraph six, as follows: The representations you made at paragraph 5 were: a. untrue; b. you knew to be untrue. c. you were reckless as to whether they were true or not. 4. Ms Kitzing said that there would be no prejudice to you in making this amendment, and submitted that it would be in the public interest for the allegation to encompass all of the alleged misconduct in this case, and as currently drafted it fell short of doing so. 5. Mr Hurst, on your behalf, opposed the application to amend this paragraph of the allegation. He reminded the Tribunal that Rule 17(6) allows for an amendment to be made where at any time it appears to the Tribunal that an allegation should be amended and it could be made without injustice. He submitted that, if the GMC felt it was in the public interest to include this amendment to the allegation, it should have been done before this late stage of the proceedings. He expressed concern that you had provided a witness statement in good faith, and the GMC appeared to have gone through it with a 'fine tooth comb' to look for any information which may amount to an additional breach of Good Medical Practice and add that on to the allegation. He submitted that, while this may seem a small amendment to the GMC as regulator, it would make a huge difference to you as a registrant. 6. The Tribunal determined to allow the unopposed amendments to paragraphs two and three of the allegation. 7. As regards paragraph six of the allegation, the Tribunal determined that it would be unfair to include this amendment. It was made after the GMC had closed its case, with no good reason provided to the Tribunal for the lateness of the 6

7 application. It considered that the proposed amendment was a matter of substance rather than style and, in combination with the linked paragraph thirteen of the allegation, had the potential to add a fresh charge of dishonesty. The Tribunal was therefore not satisfied that, in accordance with Rule 17(6), the application could be made without injustice, and did not consider that refusing this amendment affected the gravamen of the GMC's case or would be contrary in any way to the Tribunal's overarching objective. The Tribunal therefore determined to refuse the application to amend paragraph six of the allegation. 8. During the course of the hearing, Ms Kitzing applied to amend the paragraphs ten and eleven by deleting them in their entirety. She submitted that there was insufficient evidence to support the allegations. Mr Hurst didn't oppose it, and the Tribunal therefore granted the application. Background 9. Having trained as a Pharmacist and been registered with the General Pharmaceutical Council (GPhC) between 1997 and 2010, you retrained as a doctor and became registered with the General Medical Council (GMC) in Following your qualification as a doctor, you did not renew your registration with the GPhC and you allowed your registration to lapse on 1 January The factual background to the allegation can be summarised as follows. In early 2011, you were still undertaking occasional locum work with Lloyds Pharmacy, but this had become quite infrequent and you were spending the majority of your time on your work as a junior doctor. Having relinquished your registration with the GPhC in 2010, you continued to undertake locum work as a Pharmacist despite not being registered as such. On 16 September 2014, at Canterbury Magistrates Court, you were convicted of practising as a Pharmacist whilst not being entered as such under Part 1 or Part 4 of the Register established and maintained by the Registrar of the GPhC, contrary to s38(4)(a) and (8) of the Pharmacy Order In addition, the GMC case was that on 23 June 2014 you were convicted of failing to provide a specimen of breath for analysis, and that you failed to notify the GMC without delay that you had been charged with, and subsequently convicted of that offence. Furthermore it was alleged that, having been required to provide the GMC with details of your employment in August 2014, you failed to update that information when you later undertook a number of locum roles. Evidence 11. On behalf of the GMC, the Tribunal received a bundle of documents including witness statements, correspondence between you and the GPhC, and correspondence between you and various locum agencies. In addition, the Tribunal had regard to the Memoranda of Entries entered in the registers of South Essex 7

8 Magistrates Court on 23 June 2014, and the East Kent Magistrates Court on 16 September On your behalf, the Tribunal received an undated witness statement. In addition, you gave oral evidence to the Tribunal. Admissions 13. At the outset of the hearing you made a number of admissions to the Allegation. The Tribunal subsequently announced these admissions as admitted and found, as follows: Paragraph One Between 31 July 1997 and 31 December 2010, you were registered as a Pharmacist with the General Pharmaceutical Council ( GPhC ) with the registration number Admitted and found Paragraph Two Between 7 January 2011 and 29 May 2011, you submitted Responsible Pharmacist logs to your employer, which falsely represented that: a. the GPhC registration numbers set out in Schedule 1 were your GPhC registration numbers; Admitted and found b. the GPhC registration number related to an active registration held by you; Admitted and found c. you were qualified entitled to work as a Responsible Pharmacist. Admitted and found Paragraph Three You knew that: a. those GPhC registration numbers referred to at paragraph 2a were not yours; Admitted and found b. the GPhC registration number referred to at paragraph 2b was not active; Admitted and found c. you were not qualified entitled to work as a Responsible Pharmacist. Admitted and found Paragraph Four Between 10 June 2011 and 11 August 2013, on the dates set out in Schedule 2, you: 8

9 a. were acting as the Responsible Pharmacist for a pharmacy; Admitted and found b. failed to complete a Responsible Pharmacist log. Admitted and found Paragraph Five In August 2013, you signed a locum agreement with Lloyds Pharmacy Limited, in which you falsely represented that: a. you were a registered Pharmacist; Admitted and found b. the GPhC registration number was your GPhC registration number. Admitted and found Paragraph Six The representations you made at paragraph 5 were: a. untrue; Admitted in relation to 5(a) and 5(b) b. you knew to be untrue. Admitted in relation to 5(b) Paragraph Seven On 23 June 2014, at Basildon Magistrates Court you were convicted of having been required to provide a specimen or specimens of breath for analysis by means of a device of a type ap by the Secretary of State pursuant to section 7 of the Road Traffic Act 1988 in the course of an investigation into whether you had committed an offence under section 3A, 4 or 5 thereof failed without reasonable excuse to do so contrary to: Admitted and found a. Section 7(6) of the Road Traffic Act 1988; Admitted and found b. Schedule 2 to the Road Traffic Offenders Act Admitted and found Paragraph Eight On 23 June 2014, you were sentenced to a: a. fine of 600; Admitted and found b. 12 month disqualification from holding or obtaining a driving licence. Admitted and found 9

10 Paragraph Nine You failed to notify the GMC without delay that you had been: a. charged with the criminal offence detailed in paragraph 7; Admitted and found b. convicted of the criminal offence detailed in paragraph 7. Admitted and found Paragraph Ten On 1 August 2014, you informed ID Medical that the GMC investigation ( the Investigation) disclosed to you on the same date was in relation to you moving your car in a car park whilst being over the limit. Admitted and found Paragraph Eleven The information you gave to ID Medical, referred to in paragraph 10, was: a. untrue; Admitted and found b. you knew to be untrue. Admitted and found Paragraph Twelve On 1 August 2014, you were requested to provide the GMC with your employer details and inform the GMC if you changed employers during the Investigation. You failed to inform the GMC that you worked for: a. Barking, Havering and Redbridge University NHS Hospitals Trust, through Total Assist Recruitment, between: i. 3 and 28 November 2014; Admitted and found ii. 23 March 2015 and 26 June 2015; Admitted and found b. Hinchingbrooke Hospital between 19 October 2014 and 23 October 2014, through ID Medical; Admitted and found c. Southend University Hospital, through ID Medical, between: i. 27 October 2014 and 31 October 2014; Admitted and found ii. 1 December 2014 and 30 January 2015; Admitted and found 10

11 iii. 12 August 2015 and 21 August 2015; Admitted and found d. Medway Maritime Hospital between 2 and 27 February 2015, through Total Assist Recruitment; Admitted and found e. Kent & Canterbury Hospital, through: i. The Locum Consultancy, between: a. 13 April 2015 and 15 May 2015; Admitted and found b. 1 June 2015 and 31 August 2015; Admitted and found ii. ID Medical, between 1 September 2015 and 31 January Admitted and found Paragraph Thirteen Your actions in respect of paragraphs 2-6 and were dishonest. Paragraph Fourteen On 16 September 2014, at Canterbury Magistrates Court you were summarily convicted of practising as a Pharmacist whilst not being entered as such under Part 1 or Part 4 of the Register established and maintained by the Registrar of the GPhC, contrary to: c. s38(4)(a) and (8) of the Pharmacy Order Admitted and found Paragraph Fifteen On 16 September 2014, you were sentenced to pay a fine of Admitted and found The Tribunal's Approach 14. The Tribunal has considered each outstanding paragraph of the allegation separately. The Tribunal had regard to all the evidence received, both oral and documentary, as well as the submissions made by Ms Susanna Kitzing on behalf of the GMC, and those made by Mr Andrew Hurst on your behalf. 15. The Tribunal bore in mind the advice of the Legally Qualified Chair, and it accepted that, with regard to the outstanding paragraphs of the allegation, the 11

12 burden of proof rests with the GMC. The standard of proof to be met in these proceedings is that applicable to civil proceedings, namely the balance of probabilities. The Tribunal's Decision Paragraph Six The representations you made at paragraph 5 were: a. you knew to be untrue. Admitted in relation to 5(b) and found in relation to 5(a) 16. Your position was that you did not read the document before signing it, and therefore did not know that in doing so you were confirming that you were a registered Pharmacist. The Tribunal accepted your oral evidence to the Tribunal that at the time that you signed this document you were more concerned with your medical career than your former career as a Pharmacist, and that this may have meant that you were casual in your approach to administrative tasks relating to your previous career. The Tribunal accepts that it is likely that you did not carefully read the full terms of the locum agreement. Nonetheless, you were an experienced professional who had formerly been a registered Pharmacist for thirteen years. You must have known that in entering into a written agreement to provide locum services you were representing that you were entitled to provide these services, and accordingly that you were currently a registered Pharmacist. The Tribunal was satisfied that it was clearly implicit in your signing the agreement that you were representing that you were a registered Pharmacist. This was supported by the fact that you were required to enter your GPhC registration number on the front of the agreement, and your admission to Paragraph 5(b) and 6(a) and (b) in this regard reflected your actions of entering an entirely fictitious GPhC registration number in the agreement. Paragraph Thirteen Your actions in respect of paragraphs 5(a) and 12 were dishonest. Found Proved in relation to paragraph 5(a) and Found Not Proved in relation to paragraph In determining dishonesty, the Tribunal had regard to the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 ( Ivey v Genting ), which sets out that: When dishonesty is in question the fact-finding Tribunal must first ascertain (subjectively) the actual state of the individual s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question 12

13 is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest. In relation to paragraph 5(a) 18. The Tribunal took into account that you had practised as a Pharmacist for many years, and have now been registered with two professional bodies. It was your responsibility as a registrant to ensure that you fully understood the implications and importance of your registration number, and this is a fundamental part of registration training. The Tribunal has also taken into account that you did not even write your own previous registration number on the form, but an entirely fictitious one. In making its findings in relation to paragraph 6(b), the Tribunal concluded that you had represented that you were a registered Pharmacist, who was entitled to dispense medication including controlled drugs. The Tribunal was satisfied that ordinary decent people would consider your actions to be dishonest, regardless of whether you personally regarded it dishonest. Therefore on the balance of probabilities, the Tribunal concluded that you acted dishonestly in representing that you were a registered Pharmacist when you returned the locum agreement including a false registration number to Lloyds pharmacy as part of your agreement to undertake locum pharmaceutical work with them. In relation to paragraph twelve 19. The Tribunal noted that the Work Details Form that you completed and returned to the GMC on 13 August 2014 was accurate at the date of its completion, and that you appeared to have complied with all other requirements following the revocation of your interim order. The Tribunal accepted your evidence that your approach to administration, particularly when it related to your work as a Pharmacist, to which by this time you felt more or less indifferent, was disorganised and chaotic. It also considered that due to the way the letter from the GMC was structured, the section which sets out this updating requirement could be fairly easy to miss, if the letter were not read carefully. The Tribunal therefore was satisfied that you did not realise that you needed to continually update the GMC with information about each of your locum placements. Hence your failure to inform the GMC of the subsequent placements was a careless act rather than a dishonest act. 20. Given the Tribunal's findings, the Tribunal did not consider that the GMC have satisfactorily discharged the burden of proof in alleging that you acted dishonestly in not informing them of your locum posts. 13

14 Determination on Impairment - 19/01/ The Tribunal next had to decide in accordance with Rule 17(2)(k) of the Rules whether, on the basis of the facts which it had found and set out in the preceding determination, your fitness to practise is impaired by reason of misconduct and your conviction. Submissions 2. On behalf of the GMC, Ms Kitzing submitted that, given that the Tribunal had established that your conduct was dishonest, your actions amounted to misconduct. She told the tribunal that your dishonesty was sustained, serious and took place over a period of time. She submitted that your convictions are breaches of criminal law that put the reputation of the medical profession at risk. She further submitted that your conviction for acting as a pharmacist when you were not registered could lead to concern among the public about the regulation of pharmacists and by implications potentially other health professions. 3. Ms Kitzing drew the Tribunal's attention to the relevant paragraphs of Good Medical Practice 2006 and 2013, which were the pertinent versions at the time the events took place. In particular, she highlighted the importance of probity and trustworthy conduct at all times. She submitted that there was a risk of repetition, and invited the Tribunal to consider the misconduct holistically, and to note that there had been several instances of dishonesty, which took place sequentially over a period of time. 4. On your behalf, Mr Hurst told the Tribunal that you concede that your actions amount to misconduct, and that your fitness to practise is currently impaired. He invited the Tribunal to consider carefully the circumstances surrounding your actions. He submitted that your dishonesty had not been related to your clinical work as a doctor, and was not for financial gain or for status. He submitted that you had demonstrated your credibility and integrity before the Tribunal in your evidence during the hearing. Mr Hurst submitted that you understand your obligations as a registered medical professional, and had expressed your regret and will not fall short of the requirements of a professional regulator in future. The Tribunal's Approach 5. The Tribunal reminded itself that at this stage of proceedings, there is no burden or standard of proof and the decision on impairment is a matter for the Tribunal s judgment alone. 6. In approaching the decision, the Tribunal was mindful of the two stage process to be adopted: first whether the facts as found amounted to misconduct and then whether that finding of misconduct should lead to a finding of impairment. As to your 14

15 admitted convictions the Tribunal's task was to consider whether your fitness to practise was currently impaired by reason of either or both of those convictions. 7. The Tribunal had to determine whether your fitness to practise is impaired today, taking into account your conduct at the time of the events and any relevant factors since then such as whether the matters are remediable. The Tribunal s Decision Misconduct 8. The Tribunal concluded that your actions amounted to misconduct which was serious and which fell seriously below the standards expected of a registered medical practitioner. The cornerstone of the GMC case is that between January 2011 and August 2013 you practised as a pharmacist while no longer being a registered pharmacist, which led to your conviction at Canterbury Magistrates Court on 16 September However, both parties agree that the misconduct alleged at paragraphs two to six of the allegation went beyond the mere fact of the conviction and amount to misconduct. Underpinning the conviction was the fact that you dishonestly worked as a pharmacist when not registered on no less than nineteen separate occasions, between January 2011 and August 2013 and that you signed a locum agreement making two dishonest representations. 9. The Tribunal note that in respect of paragraph 4(b) of the allegation you admitted that you failed to complete a 'Responsible Pharmacist' log on the dates set out in Schedule 2 of the allegation. The Tribunal does not find this to be culpable in any way because it is clear from paragraph 2 of the allegation that you should not have completed a pharmacists log to begin with, since you were not registered as a pharmacist and therefore not entitled to do so. The Tribunal therefore find this element of the allegation neither culpable nor amounting to misconduct. 10. The Tribunal reminded itself of its previous findings of fact, in respect of paragraph 12, and its conclusion that your actions in not updating the GMC in relation to your locum work were careless rather than dishonest. The Tribunal was satisfied that this paragraph of the allegation therefore does not amount to misconduct. 11. The Tribunal notes that the events in question occurred between 2011 and 2013, and therefore had regard to both the previous version of Good Medical Practice, which was published in 2006, and the current version, published in In the 2006 version, the Tribunal noted paragraphs 56 and 57, which state: 56 Probity means being honest and trustworthy, and acting with integrity: this is at the heart of medical professionalism. 15

16 57 You must make sure that your conduct at all times justifies your patients trust in you and the public's trust in the profession. 12. The Tribunal also had regard to paragraphs 55, 66, 71, 75 and 77 of the 2013 version of Good Medical Practice, which set out the importance of probity in all areas of a doctor's life, specifically with regard to disclosing convictions to the GMC and being open and honest in completing and signing forms, reports and other documents. 13. The Tribunal determined that you had a clear professional duty to notify your regulator of your convictions, and is satisfied that your failure to do so amounted to misconduct. In relation to your repeated working as a pharmacist when not registered and the dishonestly signed locum agreement, the Tribunal concluded that this constituted a pattern of repeated dishonesty and was serious misconduct that fell far below the standards expected of a medical practitioner registered with the GMC. 14. The Tribunal next considered whether your fitness to practise was impaired by reason of your misconduct. The Tribunal bore in mind the advice in Dame Janet Smith's fifth Shipman Report, and considered first whether you had acted or were liable to act in future in a way which may put patients at risk. While there was no evidence of actual harm to patients, the Tribunal could not overlook the potential for harm created by a pharmacist dispensing medication and controlled drugs while entirely unregulated. Furthermore the Tribunal was satisfied that your misconduct brought the medical profession into disrepute. Your actions breached a fundamental tenet of the medical profession, namely the expectation that a doctor will be honest and trustworthy, and your behaviour was dishonest. 15. The Tribunal reminded itself that it must approach the question of impairment with a view to determine whether you are currently impaired today, rather than at the time when the events occurred. It has taken into account the testimonials and character references submitted on your behalf. The Tribunal has also noted your expressions of remorse and regret, both in oral evidence and in your witness statement. However, the Tribunal could not overlook the repeated acts of dishonesty in a number of different contexts. Having not heard from you on this point, the Tribunal could not safely exclude the risk of repetition of your misconduct. While it acknowledges that you have worked safely and to a high standard in the years following these events, the Tribunal has not yet been provided with cogent evidence of fully developed insight and remediation. 16. The Tribunal bore in mind its overarching statutory objective, namely to protect the public, uphold standards of conduct befitting a registered medical practitioner, and to safeguard the wider public interest. It considered that these responsibilities would be undermined were a finding of impairment arising from your 16

17 misconduct not made. Accordingly, the Tribunal concluded that your fitness to practise is currently impaired by reason of your misconduct. Conviction or Caution 17. In relation to your conviction for failing to provide a specimen of breath, the Tribunal does not seek to minimise the gravity of that offence or the impact that it has on the reputation of the profession. However, in light of the years that have passed since this conviction without repetition, the Tribunal did not consider that a finding of current impairment of your fitness to practise was either necessary to protect the public or to protect the wider public interest. It bore in mind that you have served your disqualification from driving and met the penalties imposed by the court. Therefore the Tribunal concluded that your fitness to practise is not impaired as a result of this paragraph of the allegation. 18. In relation to your conviction for practising as a pharmacist whilst not being registered with the GPhC, this is a serious criminal offence and the Tribunal is in no doubt that a finding of impairment relating to this is necessary to address the wider public interest, to uphold standards of conduct expected of a registered medical practitioner and to uphold public confidence in the profession. 19. The Tribunal has therefore determined that your fitness to practice is impaired by reason of misconduct and by reason of your conviction. Determination on Sanction - 23/01/ Having determined that your fitness to practise is impaired by reason of your misconduct and your conviction, the Tribunal has now considered what action, if any, it should take with regard to your registration, in accordance with Rule 17(2)(n) of the General Medical Council ( GMC ) (Fitness to Practise) Rules 2004, as amended ( the Rules ). Evidence 2. The Tribunal received a detailed written reflective statement from you, and you also gave oral evidence. The Tribunal considered that your evidence was candid, unguarded and credible. You were consistent and adopted and expanded upon your written reflections before the Tribunal, and gave an insightful account of your state of mind at the time of the events and the context surrounding your misconduct. 3. In your evidence to the Tribunal, you expressed sincere regret and remorse, and demonstrated genuine insight into your misconduct. This was borne out by the steps you have taken to remediate through constant and meaningful reflection, targeted training, continued professional development and, significantly, the fact 17

18 that you have been practising as a doctor within the NHS for the past four years and in that time have risen to the post of locum consultant. 4. In light of its findings of fact in relation to paragraphs 6a and 6b, during your evidence, you were asked what you would have intended if you provided a signed piece of paper with your name and GMC registration number on. In response to this question, you clearly acknowledged that you would inevitably be representing that you were entitled to practise as a doctor and acknowledged without hesitation that to do so without being registered would be dishonest. The Tribunal was reassured by your answer that your reflection had continued during the course of this hearing. The Tribunal was satisfied after hearing your evidence that the risk of repetition of your misconduct, including any further dishonesty on your part, is negligible. 5. You provided the Tribunal with substantial evidence of training that you sought and successfully completed which targeted areas of concern highlighted by this case, namely: 'Maintaining Professional Ethics' 'The fourth Day: Maintaining Professionalism' Assertiveness and stress management training 6. The Tribunal explored in detail with you the effectiveness of the training you had undertaken. You were able to give specific examples of putting your training into practice, which the Tribunal found very reassuring. You were able to demonstrate a clear understanding of how a lack of assertiveness had contributed to your misconduct and how you would now react differently to similar circumstances. 7. The Tribunal also received a large number of very positive testimonials from colleagues and patients, all of whom spoke very highly of your clinical abilities and personal qualities. The Tribunal noted that each of these testimonials was prepared in response to a detailed letter from your solicitor setting out the allegations that you faced, and so were written with full knowledge of the circumstances of the hearing. Submissions 8. Ms Kitzing reminded the Tribunal of its overarching objective, and highlighted the importance of the Tribunal's role in maintaining the reputation of the medical profession. She said that the GMC accepted that you have demonstrated that you have developed some insight during this process, in that you made a number of admissions, but submitted that this process is only partially complete. 9. Ms Kitzing submitted that the appropriate sanction in your case was erasure, and directed the Tribunal to the Sanctions Guidance which sets out that erasure may still be the appropriate sanction in cases even where there is no patient safety risk, if necessary to uphold public confidence in the medical profession. 18

19 10. Ms Kitzing said that suspension would be an insufficient sanction, as the Tribunal could not be satisfied that your dishonest behaviour is unlikely to be repeated. She submitted that your misconduct constituted a serious breach of Good Medical Practice which was incompatible with continued registration. 11. On your behalf, Mr Hurst asked the Tribunal to consider how the public interest would be served by erasing your name from the medical register, given the specific circumstances of your case. He said that, while sanctions are not supposed to be punitive, in this case it would be nothing other than punitive. He reminded the Tribunal of the length of time since the events in question, and said that you had done your best to explain the circumstances surrounding them and had frankly admitted your dishonesty. 12. Mr Hurst submitted that a reasonable observer, well informed of the facts of the case, would not think that your patients and colleagues would be best served by your erasure from the register. He submitted that, far from having limited insight, you have been extremely honest and insightful in your evidence to the Tribunal and your response to the Tribunal's questions. He said you have been frank and honest in your assessment of your previous shortcomings, and have shown tremendous insight and respect for regulation in conceding that your fitness to practise is currently impaired. He urged the Tribunal to accept that you did not accept the locum shifts at the pharmacy for money, but your character at the time meant that you were easily swayed and found it difficult to say no when you were asked to take the shifts as Lloyds was struggling to find a pharmacist. Mr Hurst submitted that the retraining that you have undertaken has addressed important areas in which you had fallen short and that the risk of repetition of misconduct, dishonesty or convictions, could now be excluded. 13. Mr Hurst submitted that the appropriate sanction in your case would be conditions, or failing that a short period of suspension would be adequate to serve the public interest, while allowing you to return to practice and your patients. The Tribunal's decision 14. The decision as to the appropriate sanction, if any, to impose in this case is a matter for this Tribunal exercising its own judgement. In reaching its decision, the Tribunal has taken into account its findings of fact and its decision on impairment, all the evidence adduced in the case and the submissions made by Mr Hurst on your behalf, and by Ms Kitzing on behalf of the GMC. 15. The Tribunal has had regard to the Sanctions Guidance (May 2017), bearing in mind its statutory overarching objective, which is to protect the public, to maintain public confidence in the medical profession, as well as to uphold standards of conduct befitting a medical professional. In making its decision, the Tribunal also 19

20 had regard to the principle of proportionality, and it weighed your interests with those of the public. It also considered and balanced the mitigating and aggravating factors in this case. The Tribunal acknowledged the clear public interest in enabling an experienced doctor to return to safe practice, if this is possible and not inconsistent with the wider public interest. 16. The Tribunal specifically considered the Sanctions Guidance in respect of dishonesty and the clear importance placed in Good Medical Practice on the expectation that doctors will be honest and trustworthy. The Tribunal bore in mind that dishonesty can arise in a large number of different ways and had regard to the examples set out in the Sanctions Guidance, including defrauding an employer, falsifying patient records and submitting false references. The Tribunal considered that your case is a clear example which demonstrates that there is not a 'one size fits all' approach to dishonesty. The Tribunal acknowledged that dishonesty, if persistent or covered up might be likely to result in erasure. However, the Tribunal reminded itself of the Sanctions Guidance which sets out that every sanction imposed must be dependent on the specific findings made by the Tribunal, having heard all the evidence of the case. 17. The Tribunal balanced the aggravating factors set out below against what it considered to be the mitigating factors in this case: Aggravating factors - Your misconduct included dishonesty in a number of different respects and was repeated over a period of two and a half years - On two separate occasions you failed to meet the requirements of your regulator by either notifying the GMC of your charge and conviction or by providing an update of your employer's details Mitigating factors - You made frank admissions to almost all paragraphs of the allegation - You have demonstrated well developed insight and made significant attempts to address and remedy your misconduct, including targeted retraining and meaningful reflection - You have shown genuine remorse and made apologies to all parties - There is convincing evidence of you reflecting at length upon the important principles of Good Medical Practice and have demonstrated adherence to them in your practice since the incidents - The Tribunal has received very positive testimonials and references relating to your work as a doctor, including oral evidence from one character witness - There has been a significant lapse of time since the misconduct occurred - There is no evidence of repetition of similar behaviour 20

21 18. The Tribunal carefully considered the evidence, both oral and documentary, that you placed before it at the sanction stage. The Tribunal found that the risk of repetition of the behaviour giving rise to this case is negligible and can be safely excluded. Accordingly, the Tribunal was satisfied that you pose no risk to patient safety. The basis for any sanction in your case is the need to reflect the wider public interest. No action 19. The Tribunal first considered whether to conclude the case by taking no action. Taking no action following a finding of impaired fitness to practise would only be appropriate in exceptional circumstances. The Tribunal considered that there are no exceptional circumstances in this case which would mean it was appropriate to take no action, and that this would fail to reflect the gravity of the facts found. Conditions 20. The Tribunal considered whether to impose conditions on your registration. In so doing, it bore in mind that any conditions imposed would need to be appropriate, proportionate, workable and measurable. The Tribunal bore in mind that yours is not a case where there are any clinical shortcomings, or where retraining or supervision would address your current impairment. In light of the remarkable insight and the fact that you have retrained as a doctor and are undertaking voluntary supervision of your work, the Tribunal considered that conditions would be unworkable, unnecessary and inappropriate. Furthermore, the Tribunal did not consider that a period of conditional registration would be a proportionate response to the gravity of your misconduct and would not address the wider public interest. Suspension 21. The Tribunal next considered whether it would be appropriate and proportionate to suspend your registration. The Tribunal acknowledged that suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and the public about the standards of behaviour expected of a doctor. The Tribunal also acknowledged that suspension has a punitive effect, although that it is not its intention. 22. The Tribunal is satisfied that your conviction in relation to working as a pharmacist when not registered with the appropriate regulatory body, together with your misconduct overall is so serious that action must be taken to maintain public confidence in the medical profession. The Tribunal reminded itself of its findings that there is no patient safety risk in your case, and therefore no necessity for it to take action to protect members of the public. On all of the available evidence the Tribunal 21

22 is satisfied that a period of suspension is appropriate to address the impairment of your fitness to practise arising from misconduct which was very serious, but in the opinion of the Tribunal falls short of being fundamentally incompatible with continued registration. 23. The Tribunal has specifically borne in mind the paragraphs of the Sanctions Guidance relating to suspension, including paragraph 93, and had regard to your significant acknowledgement of fault and the Tribunal's finding that your misconduct is unlikely to be repeated. It has also noted that you have discharged your obligations with respect to both of your convictions. 24. The Tribunal considered the GMC's submission that erasure was the only appropriate sanction, but concluded that this would be a disproportionate response in the circumstances of this case. The Tribunal was impressed by your successful efforts to remedy your behaviour. It acknowledged that remedying dishonesty is a difficult thing to do. While it acknowledged the public interest in upholding standards of behaviour befitting a medical practitioner, the Tribunal has borne in mind the further public interest in a good doctor returning to practice, and considered that you have demonstrated that you can do so safely. It noted that in the time since your acts of dishonesty you have made a wholly positive contribution to the NHS. The Tribunal therefore concluded that erasing your name from the medical register would fail to reflect the legitimate public interest in the eventual return to safe practice of a highly skilled, dedicated and highly regarded doctor. 25. The Tribunal had regard to the Sanctions Guidance in considering the length of suspension to impose, and reminded itself that this is not a case where there is any risk to patient safety. It had regard to the mitigating and aggravating features identified, and noted that you were suspended for a period of six weeks by an Interim Orders Tribunal. The Tribunal is satisfied that a period of four months suspension is the minimum appropriate period to mark the seriousness of your conduct while reflecting both the wider public interest and the public interest in returning you to safe practice and not depriving patients of the services of a good doctor for longer than necessary. The Tribunal considered that a lesser period of suspension would be insufficient to reflect the seriousness of your misconduct and conviction. However, it also considered that a longer period would fail to reflect the very significant lengths you have gone to remediate in the years that have elapsed since your misconduct took place. 26. The Tribunal does not direct a review hearing at the conclusion of the period of suspension. It had regard to the Sanctions Guidance in considering this, and is satisfied that you fully appreciate the gravity of your behaviours. It has also borne in mind that you have practised without any concerns for almost four years since the events took place, that you have maintained your knowledge and skills in that time and that the sanction is imposed to reflect the wider public interest rather than any ongoing concerns about public protection. In all the circumstances, the Tribunal 22

23 considers that patients will not be placed at risk by the resumption of your practice at the conclusion of the period of your suspension. 27. The effect of this direction is that, unless you exercise your right of appeal, this decision will take effect 28 days from when written notice of this determination is deemed to have been served upon you. A note explaining your right of appeal will be supplied to you. Determination on Immediate Order - 23/01/ Having determined to suspend your registration for a period of four months, the Tribunal next considered in accordance with Section 38 of the Medical Act 1983, as amended, whether to impose an immediate order of suspension on your registration. GMC Submissions 2. Ms Kitzing submitted that an immediate order of suspension on your registration was not required in this case. 3. Mr Hurst agreed that it was not necessary in the public interest to impose an immediate order, and would indeed be in the interests of your patients and your employing Trust to return you to practice as quickly as possible. Tribunal s decision 4. The Tribunal bore in mind that it may impose an immediate order if it finds it is necessary to protect members of the public, or is otherwise in the public interest, or is in your best interests. 5. The Tribunal noted that neither you nor the GMC seek an immediate order in this case. 6. The Tribunal found that would not be in your interests to begin the period of suspension immediately, having heard Mr Hurst's submission that your employing Trust is eager for you to return to work. The Tribunal considered that the public interest is served by your being able to continue your professional duties before your period of suspension begins in order to minimise the disruption to patients. 7. The tribunal determined that, given there are no patient safety issues in your case, it would be disproportionate to impose an immediate order of suspension. It further considered that public confidence in the medical profession would not be undermined if you were allowed to practise unrestricted during the interval between today and when the substantive order takes effect. As such, the tribunal determined no immediate order was required. 23

24 8. That concludes your case. Confirmed Date 23 January 2018 Mr Leighton Hughes, Chair 24

25 Schedule 1 Dates GPhC registration number 8 January January February February February March March March April April May May May Schedule 2 Dates 11 June June March July February August