PUBLIC RECORD. Record of Determinations Medical Practitioners Tribunal. Dates: 13/11/ /11/2017 Medical Practitioner s name: Dr Katy MCALLISTER

Transcription

1 PUBLIC RECORD Dates: 13/11/ /11/2017 Medical Practitioner s name: Dr Katy MCALLISTER GMC reference number: Primary medical qualification: Type of case New - Conviction / Caution MB ChB 2009 University of Dundee Outcome on impairment Impaired Summary of outcome Suspension, 12 months. Immediate order imposed Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Mr Leighton Hughes Mr Bernard Carter Dr Jessica Lee Tribunal Clerk: Ms Laura Piercy (13-15 November 2017) Ms Joanne Johnson (15 November 2017) Attendance and Representation: Medical Practitioner: Present and represented Medical Practitioner s Representative: Mr Anthony Haycroft, Counsel, instructed by BTO Solicitors LLP GMC Representative: Mr Paul Williams, Counsel (13-14 November 2017) Ms Emma Gilsenan (15 November 2017) 1

2 Allegation and Findings of Fact That being registered under the Medical Act 1983 (as amended): 1. On 26 May 2017 at the High Court in Edinburgh you were convicted of: a. three counts of supplying or offering to supply a controlled drug to another, contrary to section 4(3)(a) of the Misuse of Drugs Act 1971 ( the Act ); Admitted and Found Proved b. two counts of having a controlled drug in your possession, contrary to section 5(2) of the Act. Admitted and Found Proved 2. On 27 June 2017 at the High Court in Glasgow you were sentenced to carry out a total of 150 hours of unpaid work within nine months. Admitted and Found Proved And that by reason of the matters set out above your fitness to practise is impaired because of your conviction. Attendance of Press / Public The tribunal agreed, in accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004, that the press and public be excluded from those parts of the hearing where matters under consideration were deemed confidential. Determination on Facts and Impairment - 14/11/2017 Dr McAllister: Hearing in private 1. The tribunal, in accordance with Rule 41 of the General Medical Council (GMC) (Fitness to Practise) Rules 2004, as amended (the Rules) determined that the hearing should proceed in private when confidential matters are discussed. Admissions 2. At the outset, Mr Haycroft admitted the allegation in its entirety on your behalf, as follows: Paragraph 1 On 26 May 2017 at the High Court in Edinburgh you were convicted of: 2

3 a. three counts of supplying or offering to supply a controlled drug to another, contrary to section 4(3)(a) of the Misuse of Drugs Act 1971 ( the Act ); Admitted and Found Proved b. two counts of having a controlled drug in your possession, contrary to section 5(2) of the Act. Admitted and Found Proved Paragraph 2 On 27 June 2017 at the High Court in Glasgow you were sentenced to carry out a total of 150 hours of unpaid work within nine months. Admitted and Found Proved 3. It was announced that the allegation was admitted and found proved in its entirety, and the hearing progressed to consideration of impairment of your fitness to practise. Application to admit evidence 4. Following your admissions, Mr Haycroft made an application for further documentation to be admitted into evidence. These documents comprised: Your witness statement, signed on 13 November 2017 A statement from Mr D, the advocate who represented you at the criminal trial XXX A bundle of testimonials from colleagues, including two additional testimonials received on 12 November Mr Haycroft informed the tribunal that these documents had been served late upon the GMC due to the work commitments of your solicitor. He submitted that all of the documents were relevant and would assist the tribunal to understand your evidence and the context within which the offences occurred. He submitted that it was fair to allow these documents into evidence as it explained the background and your state of mind at the material time. 6. Mr Haycroft told the tribunal that there had been some discussion with the GMC to decide which documents should be provided to the tribunal, in the context of a criminal charge of culpable homicide of which you had been acquitted. He told the tribunal that the GMC had seen an unsigned version of your statement before today, and that the final bundle was served on the GMC as quickly as possible, given that the GMC s finalised bundle was only provided to your solicitor on 6 November

4 7. Mr Williams, on behalf of the GMC, did not oppose the application in relation to your witness statement, but opposed the application regarding all the other documents. He submitted that the GMC bundle was served in good time, and that there was then a process of negotiation in relation to redactions, which did not prevent your representatives from serving their bundle of evidence on the GMC. He submitted that this was supposed to have been served on the GMC no later than 28 days before the start of the hearing, and that the bundle XXX was served on 6 November 2017, with the other documents following on thereafter. 8. Mr Williams submitted that, whilst no specific prejudice has arisen in relation to this late service, it changes the dynamic of the process the GMC would have undertaken had they been served in good time. His primary objection was that the evidence should not be admitted when it had been served outside the case management directions timetable. However, Mr Williams also submitted that the late service had deprived the GMC of the opportunity to seek evidence in response. Mr Williams accepted that none of the responsibility for this lay at your feet. 9. In relation to relevance, Mr Williams submitted that the documents related to peripheral matters rather than being central to the tribunal s considerations. 10. The tribunal was of the view that this evidence was potentially relevant, as it provided context to the events which resulted in your convictions. It was satisfied that it was fair to you for this evidence to be admitted, and that whilst the late service was unfortunate and potentially avoidable, it would be wrong in principle to conclude that non-compliance with case management directions should prevent you from having potentially relevant evidence placed before the tribunal and therefore affect your right to a fair hearing. 11. Accordingly, the tribunal determined to admit all of the evidence upon which you seek to rely. The tribunal was satisfied that both parties could make submissions as to the relevance of this evidence in due course, including submissions on the weight that should be attached to it, but that ultimately this was a matter for the tribunal to determine. Background 12. You were signed off from work in September 2014 XXX and have not worked in a clinical capacity since that time. In May 2015, a close friend of yours died as a result of an overdose, and it was suspected that she had obtained the drugs from your home. The police searched your home with your consent and confiscated your prescribed medication and vials of midazolam that you claimed you inadvertently brought home from work and which you had volunteered to the police. You were found to be in possession of psilocin/psilocybin, more commonly known as magic mushrooms. 4

5 13. The police initially suspected that you were involved in the death of your friend, and during the course of the police investigation it was discovered that you had supplied XXX, from the quantity you had been prescribed, to a senior A&E colleague. It was also discovered that you had supplied XXX and XXX to your expartner. 14. At the criminal trial, the judge dismissed a number of charges that you faced, including a charge of culpable homicide in relation to the death of your friend. You entered a guilty plea to the charges relating to your possession and your supply of drugs to a former colleague and an ex-partner, and were sentenced in June Evidence received 15. The tribunal has given consideration to all the evidence adduced in this case, both oral and documentary, and has taken account of the submissions made by Mr Williams on behalf of the GMC, and the submissions made by Mr Haycroft on your behalf. 16. In addition to the documentary evidence, you gave oral evidence. You told the tribunal about your background and your personal circumstances surrounding the events which gave rise to your convictions, as well as your hopes and plans for the future if you are permitted to remain on the medical register. You also told the tribunal that you were against the use of recreational drugs, as you had seen the devastating impact they could have, and that you had taken steps in the management of your own prescribed medication to mitigate the possibility of repetition of these events. 17. The tribunal found you to be a credible and articulate witness, and it accepted that you had genuine difficulty in recalling some of the events about which you were questioned, XXX. XXX Submissions 19. Mr Williams submitted that your fitness to practise is impaired due to your conviction. He submitted that it is difficult to imagine a scenario when a criminal conviction would not amount to serious misconduct, and that this is harmful to the reputation of the profession. 20. Mr Williams submitted that there were no issues relating to patient safety or public protection, and that the only link between your convictions and your clinical practice was that you had obtained the midazolam from your place of work. There was some discussion about whether this occurred on 1 or 2 occasions and Mr 5

6 Williams submitted that the natural inference was that this occurred on two occasions, as the vials of midazolam had two different expiry dates. He submitted you were unable to refute the possibility that this occurred on more than one occasion due to having no recall of any specific event. 21. Accordingly, Mr Williams submitted that a finding of impairment of your fitness to practise should only be made by the tribunal to address the wider public interest. 22. Mr Haycroft, on your behalf, agreed that your fitness to practise is impaired by reason of your conviction. He submitted that the evidence demonstrated that the events which gave rise to your conviction occurred when you were XXX not working, XXX 23. Mr Haycroft suggested that the tribunal should exercise caution regarding the report from your social worker, as she expressed opinions based on disputed facts and complex XXX issues XXX. He also pointed out that this evidence was not tested before this tribunal, and that the assertions made were contradicted by your positive testimonials from colleagues. 24. Mr Haycroft submitted that a number of factors weighed in your favour, such as entering a guilty plea, having no previous convictions or drug-related issues, and XXX. You have successfully completed the sentence imposed by the Court. Mr Haycroft submitted that you have demonstrated significant insight, remediated your conduct and that the risk of repetition of such conduct can be excluded. He therefore submitted that there was no issue of public protection and that a finding of impairment should be made only on public interest grounds. The tribunal s decision 25. The tribunal s decision regarding whether your fitness to practise is impaired is a matter for it to determine exercising its own judgment. It has borne in mind the statutory overarching objective, which is the protection of the public and includes protecting, promoting and maintaining the health, safety and wellbeing of the public, maintaining public confidence in the profession, and promoting and maintaining proper professional standards and conduct. 26. In relation to your possession of the midazolam, the tribunal determined that it could not safely infer from the evidence that you took this from your place of work on more than one occasion. The tribunal was satisfied that the removal of the midazolam from your place of work was a genuine mistake and that you did not intend to use it or distribute it. The tribunal was of the view that you managed this situation wholly inappropriately but it accepted your evidence that you would act differently in the future. 6

7 27. The tribunal accepted that a conviction such as this is very serious, representing significant departures from the high standards expected of a doctor. The offences were committed by a professional whose core responsibilities included the safeguarding of controlled drugs. Your convictions bring the medical profession and yourself into disrepute. 28. The tribunal accepted that your conviction, and the conduct giving rise to the offence was capable of remediation by a doctor who demonstrated meaningful insight and who was able to satisfy the tribunal that all appropriate steps had been taken to address the risk of repetition. 29. In considering the risk of repetition, the tribunal considered your insight. In so doing, it took account of paragraph 46 of the Sanctions Guidance (May 2017) which states: A doctor is likely to have insight if they: a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31 33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearing. 30. The tribunal was of the opinion that you have demonstrated that you now appreciate the magnitude of your actions and that you have accepted that you should have behaved differently. In your evidence to the tribunal you stated I really let myself down and the profession people trust in doctors to keep them safe [I am] not blaming anyone else, it s all my fault The tribunal also noted XXX and that you entered a guilty plea to these charges. The tribunal was satisfied that you do have significant and meaningful insight into your actions and the consequences of those actions, XXX The tribunal also noted that the GMC did not seek to suggest that there was an issue of public protection and it did not positively assert that there was a risk of repetition in this case. 31. In all the circumstances the tribunal is satisfied that the risk of repetition of your actions which gave rise to your conviction is negligible. 32. Notwithstanding this, the tribunal was of the view that the facts giving rise to your conviction demonstrated a concerning disregard in relation to the management of controlled drugs. It was satisfied that this was not demonstrative of a reckless disregard for the misuse of these drugs. However, as a doctor, you should have known well the potential harmful effects of supplying a controlled drug to another 7

8 without appropriate medical supervision. You have fallen short of the public s expectations of you as a responsible and safe doctor and seriously undermined public confidence in the profession. 33. In all the circumstances, the tribunal has therefore determined that your fitness to practise is impaired by reason of your conviction for a series of serious criminal offences. This is in order to address the wider public interest, the need to uphold proper professional standards and public confidence in the medical profession. Those overarching responsibilities would be undermined if a finding of impairment were not made. Determination on Sanction - 15/11/2017 Dr McAllister: 1. Having determined that your fitness to practise is impaired by reason of your conviction, the tribunal has now considered what action, if any, it should take with regard to your registration. 2. In so doing, the tribunal has given careful consideration to all the evidence adduced, together with Mr Williams and Ms Gilsenan s submissions on behalf of the General Medical Council (GMC) and those made by Mr Haycroft on your behalf. Submissions 3. Mr Williams submitted that the appropriate sanction in your case is erasure. He submitted that paragraph 109 of the Sanctions guidance (May 2017) was particularly relevant: Any of the following factors being present may indicate erasure is appropriate (this list is not exhaustive). a A particularly serious departure from the principles set out in Good medical practice where the behaviour is fundamentally incompatible with being a doctor. b A deliberate or reckless disregard for the principles set out in Good medical practice and/or patient safety. d Abuse of position/trust (see Good medical practice, paragraph 65: You must make sure that your conduct justifies your patients trust in you and the public s trust in the profession ). 8

9 4. Mr Williams submitted that this was a particularly serious departure from the principles in Good Medical Practice, which necessitated a sanction beyond suspension. He submitted that it represented an abuse of your position of trust, such that it was fundamentally incompatible with continued registration. 5. Following a submission from Mr Haycroft that he would be asking the tribunal (if applicable) not to order a review hearing, Ms Gilsenan referred the tribunal to the paragraphs in the Sanctions guidance (May 2017) which refer to review hearings. It was her submission that a review of your case should take place if the tribunal determined to impose any sanction lesser than that of erasure. 6. It was Mr Haycroft s submission that the public interest would be sufficiently marked by the imposition of a period of suspension of your registration. He referred the tribunal to paragraphs 91 to 93 of the Sanctions guidance (May 2017) which refer to suspension and it was his submission that in your case these paragraphs are applicable. He submitted that in your case paragraph 109a which the tribunal had been referred to by Mr Williams was not engaged. Further, he noted that paragraph 109b did not tie in with the tribunal s determination on impairment, where it found in paragraph 32 that you did not demonstrate a reckless disregard for the misuse of controlled drugs. Mr Haycroft then listed the following factors as to why the tribunal should not erase your name from the Medical Register: your acknowledgement of your wrong doing you have no previous convictions and there has been no other misconduct since the incidents which led to your conviction this is not a clinical case you did not receive a custodial sentence there was no financial gain on your part XXX you have apologised and shown remorse you still have a lot to offer the public as a doctor and this is reflected in the testimonials that have been submitted on your behalf the risk of repetition is negligible. 7. With regards to the length of any suspension, it was Mr Haycroft s submission that yours is not a case where the tribunal would need to impose the maximum period of suspension of 12 months and that a few months would be sufficient. 8. Mr Haycroft then addressed the tribunal as to whether it should direct a review of your case. It was his submission that in your case it is not necessary to direct a review. He referred the tribunal to paragraph 164 of the Sanctions guidance (May 2017) and it was his submission that the only point which is relevant is that you have been out of practice now since September He reminded the tribunal that you would not be able to return to work without a phased return. Finally, he submitted that there is merit in your case in drawing a line under everything that 9

10 has happened and allowing you to move on. However, he noted that this was a fine balance between the interests of the public and those of yourself. The tribunal s approach 9. The decision as to the appropriate sanction to impose, if any, in your case is a matter for the tribunal exercising its own judgement. 10. In reaching its decision, the tribunal has taken account of the Sanctions guidance (May 2017). It has borne in mind that the purpose of a sanction is not to be punitive, but to protect patients and the wider public interest, although they may have a punitive effect. 11. Throughout its deliberations, the tribunal has applied the principle of proportionality, balancing your interests with the public interest. It has taken account of the over-arching objective, which includes the protection of the public, the maintenance of public confidence in the profession, and the promoting and maintaining of proper professional standards and conduct for members of the profession. 12. The tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction. 13. The tribunal identified the following aggravating and mitigating factors in your case: Aggravating: the facts which gave rise to your convictions represented three separate instances of the supply of controlled drugs and the unlawful possession of two different types of controlled drugs Mitigating: you made full admissions about your wrong doing and entered guilty pleas before the Court your genuine remorse you have no previous convictions/findings, and there has been no concerning behaviour since your conviction you have demonstrated significant insight into the conduct which gave rise to your convictions and its impact on the reputation of the profession. the supportive references and testimonials which speak highly of your personal qualities even in light of your conviction 10

11 the events giving rise to your conviction occurred at a time when your judgment was potentially clouded during a difficult period in your life XXX you have completed your community-based sentence. No Action 14. In coming to its decision as to the appropriate sanction, if any, to impose in this case, the tribunal first considered whether to conclude your case by taking no action. 15. The tribunal determined that in view of the tribunal s findings on impairment, and your conviction for serious offences, it would be neither sufficient, proportionate nor in the public interest, to conclude your case by taking no action. Furthermore, the tribunal considered that there were no exceptional circumstances which might justify that conclusion. Conditions 16. The tribunal next considered whether it would be sufficient to impose conditions on your registration. It has borne in mind that any conditions imposed would need to be appropriate, proportionate, workable and measurable. The tribunal noted that there have never been any concerns about your clinical practice and yours is not a health or performance case. The tribunal determined that given the seriousness of your conviction, conditions would not address the maintenance of public confidence in the profession and upholding of proper standards of conduct and behaviour. 17. The tribunal therefore, determined that it would not be sufficient to direct the imposition of conditions on your registration. Suspension 18. The tribunal then went on to consider whether suspending your registration would be appropriate and proportionate. It considered the paragraphs which relate to suspension and in particular paragraph 92 of the Sanctions guidance (May 2017) which states that: Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession. A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession). 11

12 The tribunal noted its finding that there is a negligible risk of repeating the type of behaviour of which you were convicted. During your oral evidence you demonstrated substantial and meaningful insight. You have reflected on your behaviour and during your oral evidence you demonstrated that you have a clear understanding of the seriousness of your actions and you accept that your actions reflect badly on the medical profession. 19. The tribunal had regard to the large body of supportive testimonials received from senior colleagues who have worked with you and speak highly of your personal qualities and clinical abilities. These include a testimonial dated 3 November 2017, received from Dr A, Consultant in Infectious Diseases and General Medicine, NHS Tayside who stated that he found you to be hard working, reliable and competent. Dr B, Consultant in Acute Medicine and Clinical Lead for Postgraduate Training and Educational Supervision noted in his testimonial dated 3 November 2017 that you were enthusiastic, knowledgeable and keen to learn Finally, in his testimonial of 20 July 2015 Dr C, Consultant Physician in General (and Vascular) Medicine in Ninewells Hospital noted that you were already a very good clinician, having resuscitation skills and clinical maturity in advance of her chronological years in medicine. 20. The incidents for which you were convicted were serious but you have demonstrated that you have insight and the risk of you repeating that type of behaviour is negligible. The tribunal therefore determined that in the circumstances of your case it would be appropriate to suspend your registration. The tribunal determined that it would be disproportionate to erase your name from Medical Register, nor would it be in the public interest to permanently deprive patients of an otherwise competent doctor. 21. The tribunal determined that, given your behaviour was such a serious departure from the standards expected of a doctor, nothing short of the maximum period of suspension of 12 months would be appropriate. The tribunal has therefore determined to suspend your registration for 12 months. 22. The tribunal then considered whether to direct a review of your case. It noted that there have never been any concerns raised about your clinical skills. In light of the positive testimonials received from senior clinical colleagues and your own oral evidence the tribunal concluded it had no reason to find that you would not refresh and maintain your clinical knowledge and skills during your period of suspension. Therefore the tribunal concluded that it was not necessary to direct a review of your case, as this would be the sole basis for a review. Furthermore the tribunal noted that you are a relatively junior doctor and in its experience any employment you pursue would have graduated clinical supervision to assist your return to work and continued training. 12

13 23. 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 - 15/11/2017 Dr McAllister: 1. Having determined to suspend your name from the Medical Register, the tribunal considered in accordance with Section 38(1) of the Medical Act 1983, as amended, whether to impose an immediate order of suspension on your registration. 2. Ms Gilsenan submitted that an immediate order should be imposed in the wider public interest. She submitted that unrestricted registration during the appeal period would not be appropriate given the seriousness of you convictions. 3. Mr Haycroft submitted that the lacuna of a short period of unrestricted registration should be avoided and that you did not oppose the imposition of an immediate order. 4. In making its decision the tribunal exercised its own judgement. It had regard to paragraph 172 of the Sanctions guidance (May 2017) which states: The tribunal may impose an immediate order if it determines that it is necessary to protect members of the public, or is otherwise in the public interest, or is in the best interests of the doctor 5. The tribunal had regard to the principle of proportionality and balanced your interests with the public interest. 6. The tribunal determined to impose an immediate order of suspension. It considered that, given the seriousness of the tribunal s findings and the need to maintain public confidence in the profession, it would be incompatible not to impose an immediate order. It was of the view that the absence of an immediate order could dilute the message to the public that the substantive sanction sends regarding the seriousness of your convictions. 7. The substantive direction for suspension as already announced, will take effect 28 days from when notice is deemed to have been served upon you, unless you lodge an appeal in the interim. If you do lodge an appeal, the immediate order for suspension will remain in force until the appeal is determined. 8. The interim order currently imposed on your registration is hereby revoked. 13

14 9. That concludes this case. Confirmed Date 15 November 2017 Mr Leighton Hughes, Chair 14