Minutes of Investigation Committee (Oral) hearing

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1 Minutes of Investigation Committee (Oral) hearing Date of hearing: 19 May 2017 Name of doctor: Dr Richard Allan Reference Number: Registered qualifications: BM BCh 2002 Oxford University Committee Members: Mr Pradeep Agrawal Chair (Lay) Mr Julian Weinberg Lay Dr Mohammed Rahman Medical Legal Assessor: Ms Judith Walker Secretary to the Committee: Mr Declan Leahy Type of Case: Conviction Representation: GMC: The General Medical Council was represented by Miss Katherine Johnson, of Counsel, instructed by GMC Legal. Doctor: Dr Richard Allan was present and represented by Mr Richard Smith of Counsel instructed by Radcliffe Le Brasseur on his behalf. Determination Dr Allan, Background 1 On 8 January 2016 you ed the GMC to inform that, on 24 December 2015, you had been charged by the police with being in charge of a motor vehicle having consumed so much alcohol that the proportion of it in your breath exceeded the prescribed limit. You stated that you were due in Taunton Magistrates court on 22 January 2016 to face the charge and that you intended to plead guilty. 1

2 2 On 14 January 2016 the GMC contacted you to let you know that they had opened an investigation into your fitness to practise as a result of this information. 3 The Avon and Somerset Constabulary wrote to the GMC on 19 th May 2016, stating that you had been convicted at Taunton Magistrates Court in January 2016 and provided a more detailed description of the occurrence. 4 The GMC obtained a Certificate of Conviction, dated 22 January 2016, which confirmed that you had been convicted of being in charge of a motor vehicle having consumed more than the prescribed limit of alcohol. It detailed that you had pleaded guilty, paid a fine of 690, as well as a victim surcharge of 69 and costs to the Crown Prosecution Service of 85, and had your driving record endorsed with 10 penalty points. 5 The GMC wrote to you on 31 October 2016, to inform you that based on the information available to them, the case examiners felt that this was a case that could be concluded with a warning. The GMC invited you to provide a response. 6 Radcliffes Le Brasseur wrote to the GMC, on your behalf, on 2 December In this letter they stated that you accepted the allegations, and that you regretted having committed the offence. They noted that you pleaded guilty in court, reported the matter to your colleagues and to the GMC. They highlighted the fact that neither the Army nor your employing Trust restricted your practice. 7 Radcliffe Le Brasseur stated that on the day in question, you had been out for the evening in Taunton, and drank more than you expected. They stated that you had decided that you were not in a fit state to drive, so returned to your car to charge your phone to call a taxi, during which time you fell asleep and were subsequently woken by the police. They stated that you apologised for your conduct and that you were not driving a car whilst under the influence of alcohol. No harm had been caused to any other road user. They invited the case examiners to conclude the case with no further action and stated that if the case examiners believed a warning to be appropriate, then you would not accept it and would seek a hearing of the Investigation Committee. 8 The GMC wrote to you on 6 April 2017 to inform you that you had been referred to the Investigation Committee for an oral hearing. GMC Submissions 9 Miss Katherine Johnson, on behalf of the GMC, submitted that it would be appropriate for the Committee to conclude this case with a warning. She submitted that your actions constituted a significant departure from Good 2

3 medical practice (2013), namely paragraph 65. She further highlighted that the paragraph one of Good medical practice states that Good doctors act with integrity and within the law. 10 Miss Johnson drew reference to the Guidance on warnings, specifically paragraph 23 which provided an example that drink driving offences have, in certain circumstances, concluded in warnings. 11 Miss Johnson submitted that your actions may be an indication that you may not be able to cope well during times of stress and submitted that this is relevant to the Committee s consideration of whether or not there is a risk of repetition. She submitted that if you were faced with similar personal circumstances in the future there is a risk of repetition. 12 Miss Johnson submitted that a warning is appropriate, as the Committee should be concerned with maintenance of public confidence in the profession, and the public would expect a formal response from the regulator. 13 With regard to proportionality, Miss Johnson stated that a warning would have no more impact upon your future employment or civil proceedings, than the conviction you have already received, and that you have already disclosed the conviction to your employers. Defence Submissions 14 Mr Richard Smith, on your behalf, submitted that this case should not be concluded with a warning. He stated that you had returned to your car to charge your phone and call a taxi, but had fallen asleep. 15 Mr Smith submitted that you accepted that your actions were a departure from the conduct expected of doctors, but that a warning would not be necessary as the conviction and sentencing are already in the public domain. He submitted that as you have been convicted, this could be referred to by the GMC in the event of any further repetition, rather than a warning. 16 Mr Smith asked the Committee to consider the details of the conviction, that it was not a drink drive conviction, that you were just over the prescribed limit and that you had not intended to drive the car. He submitted that this conviction was of a lower seriousness than other drink drive offences, as is reflected in the sentence imposed by the magistrates. He submitted that public confidence would not be undermined if the Committee chose not to impose a warning, and that a reasonable and well informed member of the public, in possession of all of the facts, would not be concerned in this circumstance. 3

4 17 Mr Smith contested the GMC s submission that you may re-offend if you find yourself in similar circumstances in the future. He submitted that it was not a proper conclusion to draw and highlighted the testimonials provided by your colleagues which stated that you deal with difficult circumstances well. 18 With regard to proportionality, Mr Smith submitted that a warning could have an impact on your future employability, especially in the particular stage and circumstance of your career. He submitted that it would be disproportionate as the warning would be disclosable to all future employers. He stated that, as you have already been convicted, a warning would achieve very little, but have a large impact upon yourself. He drew attention to the context of the conviction, that you had been affected by family circumstances. He noted that this was an isolated incident, and that you have an otherwise unblemished career. Mr Smith also highlighted the impressive array of testimonials provided by your colleagues and submitted that they provided a rounded and entirely positive picture of [your] personality and practice. Legal Advice 19 During his submissions, Mr Smith submitted that a warning would be disclosable to your employers for the duration of your career, whilst your conviction would not. The Committee queried this and heard representations from both parties on whether or not a conviction for this offence would become spent and therefore not be disclosable to employers at some stage in the future. 20 The Legal Assessor provided advice. She said that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 ( The Order ) sets out certain professions which are exempt from the Rehabilitation of Offenders Act, which includes doctors. This means the general provisions regarding convictions becoming spent and therefore not disclosable do not apply to doctors. However, The Order also contains provision for certain convictions to be protected and therefore not always disclosable. Article 3.1 of The Order relates to applications for employment and Article 3.2 states that protected convictions need not be disclosed if certain criteria are met. Under Article 2A convictions are protected where: The offence is not a listed offence (Listed offences include serious violent and sexual offences and other offences. The list can be found on the Disclosure and Barring Service website). The sentence was not custodial 4

5 The individual has not been convicted of any other offence at any time More than 11 years have passed since the date of conviction. 21 Applying these criteria, the Legal Assessor advised that, under the current legislation and provisions, after 11 years this conviction will no longer be disclosable to employers provided that you have not been convicted of any other offence at any time. Both Miss Johnson and Mr Smith were invited to comment and both confirmed that they agreed with this advice and this view. Committee Determination 22 At today s hearing the Investigation Committee carefully considered all the material before it including the submissions made by Mr Richard Smith on your behalf, and those made on behalf of the GMC by Miss Katherine Johnson. It has accepted the advice of the Legal Assessor. 23 The Committee is aware that it must have in mind the GMC s role of protecting the public, which includes: a. Protecting, promoting and maintaining the health, safety and wellbeing of the public b. Promoting and maintaining public confidence in the medical profession, and c. Promoting and maintaining proper professional standards and conduct for members of that profession 24 In deciding whether to issue a warning the Committee must apply the principle of proportionality, and balance the interests of the public with those of the practitioner. 25 The Committee determined that your actions, and conviction, constituted a significant departure from of Good medical practice, specifically paragraph 65 which states that you must make sure that your conduct justifies your patients trust in you and the public s trust in the profession. You were convicted for an offence in which you were over the prescribed limit of alcohol whilst in charge of a vehicle. 26 The Committee took into account the range of mitigation provided by your defence, that this was an isolated incident, your previous good history, the particular personal and familial circumstances at the time, your honesty and contrition, and the potential effect a warning may have upon your future career. The Committee determined that the likelihood of repetition is low. The Committee recognises that your conduct has not impacted upon what is said to 5

6 be otherwise excellent clinical practice, and has taken into account the fact that you informed the GMC and your employers, and have acted with integrity throughout. It noted the positive testimonials from your colleagues which describe you to be a consummate professional and leave no doubt that they consider you to be an excellent doctor. 27 The Committee determined that despite this mitigation, this is outweighed by the Committee s responsibility to maintain public confidence in the profession. The Committee considered that confidence in the profession would be undermined when a doctor is convicted of an offence where they are in charge of a motor vehicle having consumed so much alcohol that the proportion exceeded the prescribed limit. The Committee has borne in mind that the report from the police states that you were found in the driver s seat, with the keys in the ignition, and that the officer detected a strong smell of alcohol and that your speech was slurred. 28 The Committee also determined that there is a need to formally mark this conduct as being unacceptable, taking into account their role in declaring and upholding proper standards of conduct and behaviour. The Committee referred to paragraph 14 of the Guidance on warnings, in particular the effect of a warning in highlighting to the wider profession that certain conduct or behaviour is unacceptable. 29 The Committee considered your actions to have bought the profession into disrepute, and as such directed the following warning to be imposed upon your registration: On 22 January 2016 you were convicted being in charge of a motor vehicle having consumed so much alcohol that the proportion of it in your breath exceeded the prescribed limit. This conduct does not meet with the standards required of a doctor. It risks bringing the profession into disrepute and it must not be repeated. The required standards are set out in Good medical practice and associated guidance. In this case, paragraph 65 of Good medical practice is particularly relevant: You must make sure that your conduct justifies your patients trust in you and the public s trust in the profession. Whilst this failing in itself is not so serious as to require any restriction on your registration, it is necessary in response to issue this formal warning. This warning will be published on the List of Registered Medical Practitioners (LRMP) for a period of five years and will be disclosed to any person enquiring about your fitness to practise history. After five years, the warning will cease to be 6

7 published on LRMP; however, it will be kept on record and disclosed to employers on request. 30 You will be notified of this decision, in writing, in the next two working days. 31 That concludes the determination of the Investigation Committee in this case. 7

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

Allegation and Findings of Fact That being registered under the Medical Act 1983 (as amended): PUBLIC RECORD Dates: 06/11/2017 07/11/2017 Medical Practitioner s name: Dr Erik MILNER GMC reference number: 3317501 Primary medical qualification: Type of case New - Conviction / Caution MB ChB 1989 University