PUBLIC RECORD. Record of Determinations Medical Practitioners Tribunal

Transcription

1 PUBLIC RECORD Dates: 03/04/ /04/2018 Medical Practitioner s name: Mr Vimal HARIHARAN GMC reference number: Primary medical qualification: Type of case New - Conviction / Caution MB BS 2005 University of London Outcome on impairment Impaired Summary of outcome Suspension, 3 months. Review hearing directed Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Ms Melissa Coutino Mr Sean Ell Dr Aparna Prasanna Tribunal Clerk: Mr John Poole Attendance and Representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Present and represented Ms Sarah Przybylska, Counsel, instructed by RadcliffesLeBrasseur Mr Peter Atherton, Counsel Attendance of Press / Public The hearing was all heard in public. 1

2 Determination on Facts and Impairment - 04/04/2018 FACTS Background 1. Mr Hariharan qualified from Imperial College London School of Medicine in He became a Fellow of the Royal College of Surgeons in 2016 and was appointed to his current post as a Consultant General Laparoscopic & Colorectal Surgeon at the Hinchingbrooke Hospital in Cambridgeshire in February The allegation that has led to Mr Hariharan s hearing relates to an incident that occurred on the evening of 12 April Mr Hariharan was driving a vehicle on an A road in Peterborough and collided with a crash barrier which caused massive impact damage to his vehicle, including the loss of one wheel. Mr Hariharan stopped his vehicle and inspected the damage before proceeding to drive off in a dangerous manner leaving the road when crashing the car a second time. Mr Hariharan consented to a roadside breath test which he failed. A second reading taken at a Police Station the following morning found 57 microgrammes of alcohol in 100 millilitres of breath, an amount exceeding the prescribed limit. 3. On 6 November 2017, Mr Hariharan was sentenced for two offences, one, of driving a motor vehicle after having consumed alcohol exceeding the prescribed limit and two, of driving a motor vehicle dangerously on a road. He was disqualified from holding or obtaining a driving licence for 20 months, as well as sentenced to a Community Service Order to carry out 150 hours of unpaid work within the next 12 months. 120 hours of this order have now been served. 4. The initial concerns were brought to the GMC s attention following Mr Hariharan s self-referral on 13 April The Outcome of Application Made during the Facts Stage 5. The Tribunal granted an application from the GMC, made pursuant to Rule 34(1) of the General Medical Council (Fitness to Practise Rules) 2004 as amended ( the Rules ), to admit a further document as evidence. The Tribunal s full decision on the application is included at Annex A. The Allegation and the Doctor s Response 6. The Allegation made against Mr Hariharan is as follows: 2

3 Paragraph One On 6 November 2017 at Cambridgeshire Magistrates Court you were convicted of: a. driving a motor vehicle after having consumed alcohol exceeding the prescribed limit, contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988; Admitted and found proved b. driving a motor vehicle dangerously on a road, contrary to section 2 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act Admitted and found proved Paragraph Two On 6 November 2017 you were: a. disqualified from holding or obtaining a driving licence for 20 months from 28 April 2017; Admitted and found proved b. sentenced to a community order to carry out 150 hours of unpaid work within the next 12 months. Admitted and found proved The Admitted Facts 7. At the outset of these proceedings, Ms Przybylska, Counsel, on Mr Hariharan s behalf, made admissions to all paragraphs and sub-paragraphs of the Allegation, as set out above, in accordance with Rule 17(2)(d) of the Rules. In accordance with Rule 17(2)(e) of the Rules, the Tribunal announced these paragraphs and sub-paragraphs of the Allegation as admitted and found proved. IMPAIRMENT 8. The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether, on the basis of the facts which it has found proved as set out above, Mr Hariharan s fitness to practise is impaired by reason of his criminal convictions. Documentary Evidence 9. The Tribunal has taken into account all the documentary evidence submitted on behalf of the GMC and on Mr Hariharan s behalf. This includes but is not limited to: A certificate of conviction dated 16 November 2017 XXX XXX 3

4 Documentation from Bedfordshire Police provided to the GMC on 19 September 2017 Mr Vimal Hariharan s witness statement dated 19 March 2018 Mr Hariharan s Curriculum Vitae Multisource Feedback Surgical Training Record 2015/16 Appraisal 2016/17 Statement of Dr C, Retired Consultant Haematologist, together with letter from Dr D at the Royal Marsden NHS Foundation Trust, dated 6 April 2017 Patient Feedback: 2017/18 Anonymised Thank you cards and letters from patients Professional reference from Dr E, Medical Director and Responsible Officer, North West Anglia NHS Foundation Trust dated 19 March 2018 Three testimonial letters supportive of Mr Hariharan s character Oral Evidence 10. In addition to having received Mr Hariharan s witness statement, the Tribunal heard oral evidence from him in which he told the Tribunal of the shame he felt with regards to what had happened and how he has been humbled by the experience. Mr Hariharan stated that he had never drunk and driven before, put road users at risk, or even had a speeding ticket. He stated the he felt very disappointed in himself for bringing the profession into disrepute and apologised for the pain and suffering which he had caused. 11. Mr Hariharan said he had decided to drive initially to get something to eat after drinking alcohol. Whilst driving, what was suddenly on the forefront of his mind was a desire to see XXX due to the nature of the personal news he had received earlier that day. He was preoccupied with thoughts about what the appropriate next steps to take should be. He did not know the way, was unfamiliar with the area he was in, and had not programmed his sat-nav. 12. In response to questions from the Tribunal, Mr Hariharan agreed that he did hear a noise when he hit the central reservation. Accordingly he pulled over to check the extent of any damage. He said he would not have driven had he thought the car was not roadworthy. He cannot explain why he thought there were four intact wheels rather than three. He puts this down to a combination of being alcohol naïve and his grief. He does not recall anything else after getting back into the car. 13. The Tribunal also heard oral evidence from Dr E who had provided a professional reference supportive of Mr Hariharan. Dr E said that she had not worked with Mr Hariharan in a clinical capacity as they had different specialisms but had spoken to him about these events in her role as his Medical Director and Responsible Officer. Dr E told the Tribunal that Mr Hariharan had been open and transparent about driving whilst over the prescribed alcohol limit and that he has taken his punishment honourably, faced up 4

5 to his crime and learnt from it. She said he has not challenged his sentence and is completing the community service. Submissions 14. On behalf of the GMC, Mr Atherton submitted that the facts of this case clearly engage public safety and confidence in the profession and he submitted that Mr Hariharan had himself acknowledged that he has brought the medical profession into disrepute. 15. Mr Atherton brought the Tribunal s attention to various parts of Good Medical Practise GMP (2013 edition) which he submitted were engaged in this case, including paragraph 65 which states that a doctor must make sure that their conduct justifies their patients trust in them and the public s trust in the profession. Mr Atherton also referred to paragraph 1 of GMP which states that patients need good doctors that are honesty and trustworthy, and act with integrity and within the law. 16. Mr Atherton went on to refer the Tribunal to various parts of the Sanctions Guidance in relation to misuse of alcohol linked to criminal cases and how this can put patients at risk and undermine public confidence. Mr Atherton referred to paragraph 162 which details aggravating factors linked to misuse of drugs or alcohol. He had particular reference to subparagraph (d) which states that one aggravating factor of misuse of alcohol is if it led to a criminal conviction, particularly where a custodial sentence was imposed. Mr Atherton submitted that this Tribunal may feel that Mr Hariharan s offences could have crossed the custodial threshold. 17. Mr Atherton also submitted that the Tribunal may have some degree of concern as to the explanation Mr Hariharan gave for his consumption of alcohol on the evening of 12 April 2017 XXX. He submitted that Mr Hariharan s explanation that that he had bought the bottle of vodka out of curiosity, was a curious explanation in itself. Moreover, Mr Atherton submitted that given the nature of the driving, in which Mr Hariharan failed to recognise the seriousness of the first crash and continued to drive with only 3 wheels, the Tribunal may conclude that Mr Hariharan had sought to understate the amount of vodka consumed. 18. Mr Atherton noted the concerns that Mr Hariharan had with regard to the wellbeing of XXX but submitted that there was an expectation that medical professionals are robust and able to carry out their work and be able to manage bad news. He submitted that a finding of impairment was necessary in order to protect the public and to maintain high standards and the reputation of the profession. 19. Ms Przybylska, on behalf of Mr Hariharan, first responded to Mr Atherton s submissions. She stated that it was inaccurate that the offences could have passed the custodial threshold. She also took contention with the suggestion that Mr Hariharan may have sought to understate the amount of vodka consumed. She said that no expert 5

6 evidence had been brought to this Tribunal as it might have been to indicate Mr Hariharan had drunk more than he had admitted. She pointed out that his body mass index and the fact that he is not a habitual drinker would have been of relevance to his alcohol reading. 20. Ms Przybylska submitted that Mr Hariharan has shown insight and has not sought to hide behind XXX and the grief it caused him. She submitted that there was nothing in the evidence to suggest Mr Hariharan thought he was above the rules because he was medically qualified. Ms Przybylska noted the evidence of Dr E who was of the opinion that Mr Hariharan was genuinely remorseful and had learned and been humbled by the experience. 21. Ms Przybylska submitted that there was no risk of repetition of such behaviour. She submitted that it was relevant that Mr Hariharan has no history of any other offences or alcohol problems. She stated it was plainly a serious matter and that Mr Hariharan has conceded that his actions have brought the reputation of the profession into disrepute. However, she invited the Tribunal to consider the sliding scale of criminal offences and invited the Tribunal to consider that this matter was not so serious as to require a finding of impairment. 22. Ms Przybylska submitted that in all the circumstances of this case, the upholding of public confidence would be best achieved with a warning rather than a finding of impairment. She submitted that a warning would be a public declaration that Mr Hariharan had done something wrong and that this was not acceptable conduct for a doctor. The Relevant Legal Principles 23. The Tribunal reminded itself that at this stage of proceedings, there is no burden or standard of proof and the decision of impairment is a matter for the Tribunal s judgment alone. 24. The Tribunal must determine whether Mr Hariharan s fitness to practise is impaired today, taking into account Mr Hariharan s conduct at the time of the events and any relevant factors since then such as whether the matters are remediable, have been remedied and any likelihood of repetition. The Tribunal s Determination on Impairment 25. The Tribunal having found that the facts found proved amounted to conviction as a statutory ground, went on to consider whether, Mr Hariharan s fitness to practise was currently impaired as a result. In reaching its decision, the Tribunal has taken account of all of the evidence placed before it, as well as the submissions made by Mr Atherton, on behalf of the GMC, and those made by Ms Przybylska on behalf of Mr Hariharan. 6

7 26. The Tribunal has borne in mind the statutory overarching objective which involves the pursuit of the following objectives: to protect and promote the health, safety and wellbeing of the public; to promote and maintain public confidence in the medical profession and to promote and maintain proper professional standards and conduct for members of that profession. 27. The Tribunal considered Ms Przybylska s submission that a finding of impairment was not necessary and that a warning would be appropriate in this case. The Tribunal was of the opinion that had this been a single incidence of driving over the prescribed alcohol limit whilst suffering from grief, then a warning could have been appropriate taking all other things into account. However, the Tribunal found it particularly concerning that Mr Hariharan having crashed his vehicle once, inspected it and decided to get back in the vehicle and continue to drive down a dual carriageway while not able to control the vehicle before he crashed into a tree. 28. The Tribunal is of the opinion that while Mr Hariharan has shown some insight, it cannot be satisfied that this is fully developed in relation to the reason for why he opted to, having driven whilst drunk and having one collision already, made a decision to continue to drive the vehicle in a dangerous manner until a further collision took place, with him leaving the carriageway. XXX 30. XXX Any suggestion of a lack of candour in acknowledging the part this grief played in his behaviour on this day in question is a matter of concern for this Tribunal. XXX The Tribunal whilst sympathetic to his circumstances would have expected the doctor to have put in place strategies for dealing with any further situations in which grief could occur. The Tribunal has had no direct evidence of what any such strategies look like. 31. The Tribunal has not heard from Mr Hariharan about what he would do the next time he was faced with bad news and of any strategies he has in place to manage such a situation. Accordingly, this Tribunal cannot be satisfied that Mr Hariharan would not act in a similar way in future. Bearing all this in mind, the Tribunal has determined that Mr Hariharan s fitness to practise is impaired by reason of his convictions. It has determined that such a finding is necessary in order to protect the public and maintain public confidence in the profession and uphold proper standards of conduct in the profession. 7

8 Determination on Sanction - 05/04/ Prior to commencing the Sanction stage of proceedings, the Tribunal refused an application made on behalf of Mr Hariharan for the Impairment stage to be reopened. The Tribunal s full decision on the application is included at Annex B. 2. Having determined that Mr Hariharan s fitness to practise is impaired by reason of his convictions, the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction, if any, to impose. 3. In so doing, the Tribunal has given careful consideration to all the evidence adduced, including further oral evidence given by Mr Hariharan at this stage, together with Mr Atherton s submissions on behalf of the GMC, and those of Ms Przybylska on Mr Hariharan s behalf. Submissions 4. Mr Atherton, on behalf of the GMC, submitted that the appropriate sanction in this case is one of suspension. He reminded the Tribunal of the references he made to the Sanctions Guidance during the Impairment stage of the hearing and pointed out further relevant parts for the Tribunal to consider. 5. Mr Atherton submitted that following the Tribunals finding that Mr Hariharan is impaired by reason of his convictions, taking no action would only be appropriate in exceptional circumstances. Mr Atherton told the Tribunal that matters of personal mitigation carry less weight in these proceedings than they would in criminal proceedings. Mr Atherton also submitted conditions would not be workable or appropriate in this case. 6. On behalf of Mr Hariharan, Ms Przybylska submitted that it was not necessary to suspend Mr Hariharan s registration in order to uphold the overarching objective. She submitted that the Tribunal could take no further action in this case and that the finding of impairment in itself was serious and had consequences. Ms Przybylska reminded the Tribunal of the effects even a short period of suspension could have on a doctor and submitted that there was a very strong countervailing public interest in Mr Hariharan practicing. 7. Ms Przybylska submitted that it was vanishingly unlikely that Mr Hariharan would react similarly in the future in a similar situation. She stated that he has moved on from that day and no longer lives in the same circumstances he did a year ago. She submitted that if the Tribunal was not satisfied that no action would be the appropriate sanction, then conditions could be formulated in this case. She submitted that the Tribunal could put in place a condition of mentoring XXX so that it could be satisfied Mr Hariharan has put in place adequate coping strategies. She 8

9 also stated that a condition requiring Mr Hariharan to take a drink driving course was open to the Tribunal. 8. Ms Przybylska submitted that a period of suspension would not strike a fair balance between protecting the public interest and Mr Hariharan s interests given the unusual circumstances of this case. She submitted that if the Tribunal did decide that suspension was the appropriate sanction, then it ought to be for the shortest possible period. The Tribunal s Determination on Sanction 9. The decision as to the appropriate sanction to impose, if any, is a matter for this Tribunal exercising its own judgement. 10. In reaching its decision, the Tribunal has taken account of the Sanctions Guidance. 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 it may have a punitive effect. 11. Throughout its deliberations, the Tribunal applied the principle of proportionality, balancing Mr Hariharan s interests with the public interest. It has taken account of the overarching 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. Tribunal s Decision 12. In reaching its decision, the Tribunal has borne in mind the submissions made by Ms Przybylska on behalf of the Doctor and by Mr Atherton on behalf of the GMC. It has taken account of the further evidence presented, namely Mr Hariharan s oral evidence given at this stage of the proceedings. The Tribunal has exercised its own judgement as to the appropriate sanction, if any, to impose on Mr Hariharan s registration. The Tribunal has taken into account its detailed determinations on impairment during its deliberations. It has borne in mind that the purpose of any sanction is to protect the public, which includes: - protecting the health, safety and wellbeing of the public; - maintaining public confidence in the profession; - promoting and maintaining proper professional standards and conduct for the members of the profession. 13. The Tribunal first considered the aggravating and mitigating factors in this case. The aggravating factors are: 9

10 - There is more than one conviction before the Tribunal; - That the use of alcohol has led to a criminal conviction; - That the offending behaviour including dangerous driving covered Mr Hariharan s driving on a dual carriageway, hitting the central reservation, causing massive impact damage to his vehicle, (despite pulling over and inspecting this he got back into the car and continued to drive a car that was not road-worthy before a further accident, meaning that the offending spans a period at which he had the opportunity to stop driving but did not); - XXX - Mr Hariharan s inability to provide any explanation for why he did not seek the help or support of close family and friends that he had at a time that he received bad news, instead of consuming alcohol and getting into a car; - Mr Hariharan s attempt to minimise the damage caused by his dangerous driving when he crashed into the central reservation, when this caused his tyre to blow, and the fact that his lack of control led to the car leaving the carriageway and crashing into a tree; that no damage to other road-users or public property was caused was more by chance than design. 14. The mitigating factors are as follows: - Mr Hariharan now accepts the criticisms made of him and the findings of facts/impairment; - Mr Hariharan has now expressed regret and apologised for his behaviour; - There have been positive and supportive references and testimonials adduced which attest to this behaviour being completely out of character; - He has no history of previous, or subsequent, adverse findings against him by his regulator; - On the night of these events Mr Hariharan was a recently appointed a Consultant General Laparoscopic and Colorectal Surgeon, living in hospital accommodation away from his family; - He had received news that XXX, and knew the outcome to be poor; - He has told this Tribunal that he has reflected and formulated coping strategies for unexpected bad news, albeit that this needs further development. 15. There are a number of issues that concern the Tribunal about events surrounding Mr Hariharan s conviction. The fact that he appreciated that he had had an accident when driving while drunk was not sufficient to have a sobering effect on him, and he continued to drive dangerously. In missing an opportunity to stop driving, the time that he was a danger on the road was extended. XXX Although he 10

11 has had time to consider what happened at the time and consequently, he is unable to set out what coping strategies he would employ now, to protect himself from further behaviour that is dangerous, out-of-character or illegal, outside of his clinical capacity and capability. The responses that the doctor gave to questions regarding coping strategies mainly related to changes in his circumstances rather than specific examples of the help that he would call upon or the actions he would take. 16. The Tribunal has considered Mr Hariharan s subsequent behaviour since last April. It notes that he is completing his criminal sentence and has made good progress with this, given that 120 hours out of 150 hours of unpaid work have been completed since November It is concerning that he continues to make attempts to minimise his offending behaviour I did not have to pay compensation for any damage to the central reservation I want that put on the record, and is not able to explain why he did not seek the support of friends and family last year, when he said he would do so in the future. Nevertheless, he has now at this sanction stage fully accepted that he got things wrong and has apologised to this Tribunal. 17. It is concerning that Mr Hariharan s development of insight is so late. There has continued to be moments of denial and defensiveness on his part at this hearing. However, the Tribunal accepts that he acknowledges that what he did was wrong and brings the reputation of the profession into disrepute. 18. Although the Tribunal found aspects of his evidence to be worrying, it is now of the view that he has come a long way in his realisation and acceptance of matters. It is clear that he is still troubled by his behaviour and the consequences that it could have given rise to. 19. The Tribunal has had regard to the Sanctions Guidance and has considered the sanctions available to it, starting with the least restrictive. No action 20. In reaching its decision as to the appropriate sanction, if any, to impose in his case, the Tribunal first considered whether to conclude the case by taking no action. The Tribunal determined that this is not a case where there are exceptional circumstances which might justify taking no action. Taking no action would be wholly inappropriate and would not maintain public confidence in the profession. Conditions 21. The Tribunal next considered whether it would be sufficient to impose conditions on Mr Hariharan s registration. It has borne in mind that any conditions imposed need to be appropriate, proportionate, workable and measurable. The Tribunal had regard to the non-exhaustive list of factors set out in the Sanctions Guidance which might lead a Tribunal to conclude that a period of conditional 11

12 registration is workable. This is a conviction XXX case, and the Tribunal was not able to identify any appropriate conditions that would address the matters before it sufficiently. 22. The Tribunal accepted that he has faced up to his failings in pleading guilty to offences and undertaking his sentence. However, this is not just a case of criminal offences needing to be marked, as also relevant to the level of sanction, is his attitude and the circumstances surrounding his offending. Suspension 23. The Tribunal then considered whether it would be appropriate to order that his registration be suspended. The Tribunal has borne in mind the paragraphs of the Sanctions Guidance that deal with suspension. It has noted that suspension will be appropriate where the intention is to signal to the doctor, the profession and the public at large, that behaviour is unacceptable, but falls short of being fundamentally incompatible with continuing registration. 24. The Tribunal recognises that doctors are not infallible and can make mistakes. It considers that the public interest requires doctors not to be defensive, but rather to acknowledge mistakes they have made; to learn from them; and to demonstrate that they have taken concrete steps to avoid repetition. In this regard the Tribunal acknowledges that he would not want to behave in such a way again but does still question whether he has identified coping strategies for the future. 25. The Tribunal considered that a period of suspension would give him the opportunity for further careful reflection on the Tribunal s findings and time to continue the process of remediation. It should also allow him to develop further insight into his failings, and their impact on public safety and the reputation of the profession. The Tribunal considered that the public interest can be served with a sanction other than erasure, given his acknowledged desire not to repeat his errors. Although there is still work to be done, the Tribunal has concluded that suspension would be a sufficient sanction in this case and that complete removal from the register would be a disproportionate response. His offending behaviour does not require erasure from the Register. Duration 26. Having determined that suspension is appropriate, the Tribunal then considered its duration. Given the gravity of the findings and the limited development of strategies to prevent repetition at this stage the Tribunal considers it necessary and proportionate to suspend his registration for a period of 3 months. The Tribunal considers that a longer period is not required in the public interest but that this length of time is appropriate to provide him with an opportunity to demonstrate that he has been open with colleagues, reflected further and developed 12

13 coping strategies. It will also serve the need to mark the unacceptability of his offending, given that membership of the profession has both its rewards and its responsibilities. In reaching that decision, the Tribunal has balanced the need for the protection of the public and the public interest, with the impact of the suspension on him. Review 27. Before the end of the period of suspension, a will review his case and a letter will be sent to him about the arrangements for the review hearing, which he will be expected to attend. At the review hearing that Tribunal may be assisted by the following:- A reflective diary addressing what he has learned and done in respect of the Tribunal s findings of facts, impairment and sanction demonstrating his level of insight; A full copy of his last appraisal as referenced in this hearing, setting out issues of Trust, in terms of the impact of his convictions, and MPTS procedure; Evidence of the coping strategies that he has in place should unexpected bad news occur setting out what this looks like. 28. The effect of the foregoing direction is that, unless he exercises his right of appeal, his registration will be suspended for a period of 3 months beginning 28 days from when notification of this decision is deemed to have been served. Determination on Immediate Order - 05/04/ Having determined that Mr Hariharan s registration be suspended for a period of 3 months, the Tribunal has now considered in accordance with Rule 17(2)(o) of the Rules, whether Mr Hariharan s registration should be subject to an immediate order. Submissions 2. Mr Atherton, on behalf of the GMC, submitted that that the GMC did not seek to make an immediate order in this case. 3. Ms Przybylska, on behalf of Mr Hariharan, submitted that an immediate order was not necessary. The Tribunal s Determination 4. In making its decision the Tribunal exercised its own judgement. It had regard to the principle of proportionality and balanced Mr Hariharan s interests with the public interest. 13

14 5. The Tribunal had regard to the submissions of both parties. As there were no patient safety issues in this case the Tribunal determined that an immediate order is not necessary in this case. 6. The substantive direction for suspension will take effect 28 days from when the written notice is deemed to have been served upon Mr Hariharan, unless he lodges an appeal in the interim. 7. That concludes this case. Confirmed Date 05 April 2018 Ms Melissa Coutino, Chair 14

15 ANNEX A 03 April 2018 Application for Admissibility of Evidence 1. Mr Atherton, on behalf of the GMC, made an application under Rule 34(1) of the Rules to admit a further document as evidence. This document comprised a log of police entries made minute by minute by Command & Control at the time of the events from 10.32pm on 12 April 2017 to 6.48am on 13 April Mr Atherton stated that while a reasonable and fair summary had been provided to Tribunal in the hearing documentation thus far, the Tribunal ought to see the original source of the information and access if the summaries provided were full and complete. Mr Atherton further stated that this information had also been considered by those who referred the matter to the Tribunal. 3. On behalf of Mr Hariharan, Ms Przybylska submitted that the information contained in the log was anonymous hearsay. She submitted that no witness statements had been provided and that the material was not capable of being sensibly challenged. 4. Ms Przybylska further submitted that such anonymous hearsay would not be admissible in a criminal court and that this Tribunal would not be prevented from doing its duty by not admitting it. She submitted that the Tribunal already had all the relevant information available to it and that this further information would not be of any assistance as the weight that can be attached to it was so limited. 5. Ms Przybylska submitted that the fuller log was still not a complete transcript of the 999 calls recorded but on being questioned conceded the same arguments would stand even if these were provided. Tribunal s Decision 6. The Tribunal took account of the submissions made by both Counsel noted Rule 34(1) of the Rules, which states: 34. (1) The Committee or a Tribunal may admit any evidence they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a court of law. 7. The Tribunal asked whether the log contained fact or opinion. Mr Atherton indicated that it contained both. The Tribunal was of the opinion that the document needed to be seen so that its relevance could be assessed. It noted that no witness statements or eye witness accounts about the accident had been provided and the information before it was scant. The demeanour of Mr Hariharan at the time of the 15

16 incident could be relevant to its considerations even though the facts of the convictions had been admitted. The log may represent the best evidence available of the circumstances surrounding the accidents. 8. The decision as to what weight to give any relevant evidence could only be made once the information within the document was seen. The Tribunal reminded itself of the need to distinguish fact from opinion, discounting opinion. It also reminded itself that less weight would be placed on this evidence than for example, a witness who was present at the hearing and available for cross examination. In actual event the fuller log provided little if any additional material that was relevant to the Tribunal, the registrant giving evidence under oath explained as far he could remember what had occurred. ANNEX B 05 April 2018 Application to re-open Impairment Stage Chronology 1. After a decision on Impairment was made in open session and the Determination handed down, finding that the Doctor s fitness to practise is impaired by reason of his convictions, the Tribunal asked whether the Doctor and those who represent him were ready to proceed immediately or would want to come back the following day to deal with the Sanction stage. Ms Przybylska indicated that she would like to recall the doctor and the Tribunal were content with this. Both counsel for the doctor and the GMC asked the doctor further questions. During the period the Tribunal was considering whether if it had further questions for the doctor in camera, counsel on both sides spoke to each other. On resuming open session, Mr Atherton drew to the Tribunals attention a misunderstanding that had arisen. Application to re-open Impairment stage 2. An application was then formally made on behalf of Mr Hariharan that the Impairment stage of the hearing be reopened. GMC Counsel has responded that should this be permitted, he would want the opportunity to respond and to consider whether he would want to make further submissions regarding impairment. Mr Atherton said that it is incumbent upon Ms Przybylska to show the Tribunal that it had a discretion to re-open impairment. 3. On instruction from her client, Counsel for the Doctor seeks to rely upon the fact that the Determination alludes to direct evidence of strategies should further bad news be received not being before the Tribunal when the issue of strategies was mentioned in two testimonial letters regarding the doctor s character. Counsel admitted that she had considered being permitted to recall the Doctor to give evidence about his strategies as agreement to reopening the Impairment stage. In 16

17 fact the Tribunal intended that further evidence might be given before any decision was made regarding Sanction. The misunderstanding was not shared by any member of the Tribunal or GMC counsel; it was addressed and corrected as soon as it was communicated. 4. Post the doctor giving evidence, it was submitted on behalf of the Doctor that as factual inaccuracies could be corrected in a draft Determination, that this situation was akin to that. The Tribunal has mentioned a lack of direct evidence about strategies in its Determination on Impairment and the Doctor has now given additional evidence about this. It was submitted that the focus of Defence submissions up until now had been on the seriousness of events that had occurred, rather than strategies. Counsel suggested that she is concerned at a lack of fairness, as no questions about strategies were asked by GMC Counsel, herself or the Tribunal earlier. If new evidence could be admitted exceptionally at this late stage in relation to Impairment, the oversight could be corrected and this discretion should be permitted. 5. The Tribunal indicated that the issue of strategies was no more than one issue highlighted in the Determination. Other important matters were the nature and circumstances of the dangerous driving, where following one collision, the Doctor made a conscious decision after getting out of the car to assess the extent of damage to the vehicle, to get back into the car and continue driving on a dual carriageway, before crashing it into a tree. XXX The Tribunal made it clear that the issue of strategies was something it considered important in its Determination on Impairment, in order to allow for additional information to be presented to it at the Sanction stage of proceedings if such information was available. It was on that basis that Counsel and the Doctor had been invited to consider whether further evidence could be provided. 6. The submissions of both parties were considered. The Tribunal reiterated that it wished to act fairly to both parties and would formally make a decision and hand it down the following day given the lateness of the hour. It was mindful both of Counsel for the Doctor submitting that the Doctor was entitled to receive a fair hearing, and to feel as if he had done so, and to GMC Counsel s response that this was a case on which a finding of impairment was required. Tribunal s Decision 7. The Rules under which Fitness to Practise hearings are conducted have been examined along with case law. The Rules do not permit any discretion to hear additional evidence post a decision being made and handed down on Impairment, with a view to this stage being reopened. The case of TZ v GMC [2015] EWHC 1001 (Admin), has been considered, as have cases it refers to, including Ladd v Marshall [1954] 1 WLR 1489, and Muscat v HPC [2009] EWCA Civ 1090, although the cases 17

18 distinguish draft and final decisions. A line must be drawn somewhere or cases would never come to a conclusion. 8. The Tribunal did not hand down a draft Determination and announced its finding on impairment in open session. Notwithstanding the lack of discretion in the Rules in terms of reopening stages post decisions being made, this Tribunal has been clear that: i) New evidence might explain what strategies the Doctor now had; ii) The Doctor made no mention of strategies either in his evidence in chief, when cross examined, or in the statement he produced for this hearing, as he might have done he was free to do so; iii) Any new evidence regarding strategies would not change the decision it had made on Impairment, given that this was neither the main nor the sole basis on which the decision that the Doctor s Fitness to Practise was impaired had been made accordingly specific questions about coping strategies had not been put by the Tribunal at this stage, although the Panel had already indicated that it would be doing so at the Sanction stage of proceedings; iv) The lack of direct evidence regarding strategies had been highlighted in order that the Doctor and/or his legal representative consider how to address this before the Tribunal makes a decision on whether a sanction is needed, and if so, what sanction should be imposed, although the Panel does have open to it, the option of taking no further action if its concerns are addressed; v) Taking all matters into account, justice would be done if the Impairment stage was not reopened, but further evidence from the Doctor sought before a decision was made at the Sanction Stage. 9. The Tribunal is in the unusual positon of having heard evidence that the Doctor has been recalled to give about strategies, due to the misunderstanding that arose. It has heard no information that would persuade it that the Impairment stage needs to be reopened in fairness to the Doctor. The Tribunal does maintain it can consider further information that is relevant at the Sanction stage and intends to continue with that Stage. 18