PUBLIC RECORD. Record of Determinations. Medical Practitioner: Dates: 13/06/ /06/2018. GMC reference number: New - Conviction / Caution

Transcription

1 PUBLIC RECORD Dates: 13/06/ /06/2018 Medical Practitioner s name: Dr Chizoro Edohasim GMC reference number: Primary medical qualification: Type of case New - Conviction / Caution MB BCh 1997 University of Calabar Outcome on impairment Impaired Summary of outcome Suspension, 9 months. Review hearing directed Immediate order imposed Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Mr Nicholas Flanagan Professor Alastair McGowan Dr Jeffrey Phillips Tribunal Clerk: Mr David Salad Attendance and Representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Not present and represented Mr Ian Stern QC, instructed by Weightmans Mr Peter Horgan, Counsel Attendance of Press / Public In accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 the hearing was held in public. 1

2 Overarching Objective Throughout the decision making process the tribunal has borne in mind the statutory overarching objective as set out in s 1, Medical Act 1983 (the 1983 Act) to protect, promote and maintain the health, safety and well-being of the public, to promote and maintain public confidence in the medical profession, and to promote and maintain proper professional standards and conduct for members of that profession. Determination on Facts and impairment - 14/06/2018 Background 1. Dr Edohasim qualified from the University of Calabar, Nigeria, in 1997 and prior to the events which are the subject of the hearing, practised in the UK from 2003, principally within the specialty of psychiatry. At the time of the events leading to his conviction, Dr Edohasim was working as a Clinical Research Physician. 2. The events that have led to this hearing can be summarised briefly. On 10:50am on 7 May 2016, Dr Edohasim was driving his two daughters, aged nine and eleven, to a maths tutorial. Whilst Dr Edohasim was driving his Toyota car along Stamford Brook Road in South Manchester, Mr A, driving a Range Rover in the opposite direction, saw Dr Edohasim s car overtake two cars and approach on his (Mr A s) side of the road. Mr A thought that Dr Edohasim s car was going to hit his own and so braked, almost coming to a standstill to allow the Toyota to get by. 3. Dr Edohasim drove a further distance along Stamford Brook Road, returning to his side of the road around 120 metres before a set of traffic lights at a road junction. CCTV footage and data from Dr Edohasim s car showed that the Toyota accelerated before and through the traffic lights, which were on red against him, and across the junction, before colliding with a brick wall surrounding the base of a block of flats. As a result of the collision, Dr Edohasim s nine year old daughter died instantly, whilst both Dr Edohasim and his eleven year old daughter were seriously injured. 4. Dr Edohasim maintained, before and throughout the Crown Court proceedings, that his brakes had failed and that they must have been faulty. He insisted that he had put his foot down on the brake and not the accelerator. Data from the Toyota showed that for the four seconds prior to the collision with the wall, the pressure on the accelerator was 100%, and there was no application of the brakes during the six seconds prior to the collision. A forensic vehicle examiner found no evidence of any mechanical failure, particularly with regard to the brakes. 5. On 13 December 2017 at Manchester Minshull Street Crown Court, Dr Edohaism was convicted of causing death by dangerous driving and causing injury by dangerous 2

3 driving. On 26 January 2018, he was sentenced by HH Judge Driver QC to four years imprisonment and subject to a disqualification from driving for five years. 6. Dr Edohasim appealed the sentence imposed by the Crown Court and, on 27 March 2018 at the Court of Appeal (Criminal Division), Dr Edohasim s sentence was reduced to three years imprisonment and four years driving disqualification. The Allegation and the Doctor s Response 7. The Allegation made against Dr Edohasim is as follows: That being registered under the Medical Act 1983 (as amended): 1. On 13 December 2017 at Manchester Minshull Street Crown Court you were convicted of: Causing death by dangerous driving; Admitted and found proved Causing serious injury by dangerous driving; Admitted and found proved 2. On 27 March 2018 at the Court of Appeal you were sentenced to: a. 3 years imprisonment; Admitted and found proved b. 4 years driving disqualification. Admitted and found proved The Admitted Facts 8. At the outset of these proceedings, through his counsel, Mr Ian Stern QC, Dr Edohasim made admissions to the full Allegation, as set out above, in accordance with Rule 17(2)(d) of the General Medical Council (GMC) (Fitness to Practise) Rules 2004, as amended ( the Rules ). In accordance with Rule 17(2)(e) of the Rules, the Tribunal announced these paragraphs and sub-paragraphs of the Allegation as admitted and found proved. Impairment 9. With no facts remaining in dispute, the Tribunal 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, Dr Edohasim s fitness to practise is impaired by reason of his conviction. Documentary Evidence 10. The Tribunal had regard to the documentary evidence provided by the parties. This evidence included, but was not limited to: 3

4 certificate of Conviction relating to Dr Edohasim, completed at the Crown Court at Minshull Street, Manchester, dated 3 May 2018 and confirming the details set out in paragraph 1 of the Allegation; schedule 1 to the Certificate of Conviction, dated 3 May 2018, and setting out that Dr Edohasim appealed the sentence at the Court of Appeal and that his total imprisonment would now be three years as set out in paragraph 2 of the Allegation; transcripts from the Crown Court at Minshull Street, dated 26 January 2018 and 27 March 2018 and containing, respectively, the Judge s summing up and sentencing remarks; transcript of the Court of Appeal Judgment dated 27 March 2018; Greater Manchester Police documents including witness statements from Mr A and other witnesses, and records of interview; GMC Guidance document - Impairment of fitness to practise The Crown Prosecution Service Charging Guidelines Guidance relating to road traffic fatalities on close friends and family cases ; Dr Edohasim s witness statement for this hearing, dated 7 June Dr Edohasim s CV; letter from Mrs B, dated 8 June 2018; character references and testimonials written in support of Dr Edohasim and provided for both the criminal proceedings and this hearing; Continuing Professional Development ( CPD ) certificates. Submissions 11. Mr Horgan, on behalf of the GMC, submitted that Dr Edohasim s fitness to practise is impaired by reason of his conviction. He stated that although the circumstances of this case were tragic, the Tribunal should guard against allowing emotion or sympathy to cloud its judgment. He submitted that Judges at both the Crown Court and the Court of Appeal had recognised the particular and personal circumstances of the case, but had still felt it necessary to impose a sentence of imprisonment and disqualification from driving in order to reflect the seriousness of the offence. 12. With regard to insight, Mr Horgan acknowledged that Dr Edohasim had set out in detail the grief and guilt he felt. He said that the GMC took no issue with this, but submitted that, with regard to the Tribunal s task of assessing the situation at this stage, insight is distinct from grief and remorse. He stated that Dr Edohasim was aware he had been convicted by a jury after trial on the basis that he had been driving dangerously and had depressed the accelerator rather than the brake in error. He told the Tribunal that Dr Edohasim s case was that the car had been mechanically faulty and that the experts in the criminal case had been mistaken. Mr Horgan submitted that Dr Edohasim s responsibility was not acknowledged by him in evidence at the Crown Court or revised in the witness statement completed for this 4

5 hearing. He submitted that this meant there remained concerns about Dr Edohasim s insight into his actions on 7 May He invited the Tribunal not to lose sight of the fundamental principle of the need to protect public confidence in the profession and to promote appropriate standards of conduct and behaviour. 13. Mr Stern submitted that not every offence of causing death by dangerous driving should automatically lead to the public interest test being met and a subsequent finding of impairment. He acknowledged that Dr Edohasim had been convicted of two serious criminal offences, but submitted that, in order to understand and acquire the appropriate appreciation of the gravamen of the offences, the Tribunal should take into account the entire circumstances of events. He reminded the Tribunal that the sentencing Judge had determined that Dr Edohasim had mistakenly depressed the accelerator pedal rather than the brake, submitting that it was this piece of driving alone which had ultimately caused the collision resulting in the death and serious injury. He said that this unintentional act was distinct from the overtaking manoeuvre prior to the crash, despite it being part of the prosecution case. He submitted that the basis of the conviction was therefore not entirely clear and any doubt should be resolved in the practitioner s favour. 14. Mr Stern submitted that, when considering the issue of impairment, there is no proper basis for assuming the public interest automatically requires a finding of impairment simply because of the seriousness of the conviction. He stated that the Tribunal should take into account the nature and circumstances of the conviction as found by the Judge. He said that, in circumstances in which an individual makes a mistake by applying the accelerator instead of the brake and as a result suffers horrendous consequences, it was almost inconceivable that the public would consider it appropriate that a finding of impairment was required. 15. With regard to insight, Mr Stern referred the Tribunal to Dr Edohasim s statement for this hearing, in which he stated: I find it enormously difficult to adequately set down in a statement the weight of the grief and guilt I feel that I was the driver of the car in which my lovely bubbly 9-year old girl was killed and my wonderful oldest girl was injured. Mr Stern averred that there could be no doubt that Dr Edohasim has very clear insight. Further, he told the Tribunal that Dr Edohasim s imprisonment away from his family, work and children, is something that on a daily basis creates very clear insight into what has happened. The Relevant Legal Principles 16. 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. 17. The Tribunal must determine whether Dr Edohasim s fitness to practise is impaired today, taking into account Dr Edohasim s conviction, and any relevant factors such as 5

6 whether the matters leading to that conviction are remediable, have been remedied and the likelihood of any repetition. The Tribunal s Determination on Impairment 18. The Tribunal deliberated carefully on all of the circumstances of Dr Edohasim s conviction. This is a truly tragic case, the consequences of which have had immense impact on Dr Edohasim and his family. The Tribunal acknowledged that not every conviction, even for offences of causing death or serious injury by dangerous driving, should automatically lead to a finding of impaired fitness to practise. It took full account of the factual scenario described by the Crown Court and the Court of Appeal. At the Crown Court, Judge Driver, in his observations on sentencing, found that Dr Edohasim performed an overtaking manoeuvre which [he] knew to be dangerous and that the final incident in which the accelerator was depressed was not a mere momentary error, but persisted for at least six seconds. It noted that Judge Driver determined that the offence was so serious that he sentenced Dr Edohasim to a sentence of four years imprisonment. 19. The Court of Appeal determined it appropriate to reduce this sentence by a year, but the Tribunal considered it to be significant that, although the Court was invited to reduce the sentence to one that could be suspended, the offence was considered of such seriousness that this could not be justified and immediate imprisonment was appropriate. 20. The Tribunal accepted that the collision was the result of a wholly unintentional act and the consequences have been appalling for Dr Edohasim and his whole family. Nevertheless, Dr Edohasim remains subject to a custodial sentence, as affirmed by the Court of Appeal, and the gravity and seriousness of the offence, as explained by the criminal courts are such that public confidence in the profession would be eroded if Dr Edohasim were not to be found impaired. 21. Additionally, the Tribunal acknowledged Dr Edohasim s right to contest the criminal charges against him, but was of the view that he has never accepted that he made an error resulting in the crash, instead insisting that the collision was due to a mechanical fault. There was no evidence in the witness statement prepared for this hearing that his position has altered. The Tribunal accepted that Dr Edohasim has expressed his grief and guilt in his witness statement, but noted that he has never acknowledged that he himself was criminally culpable. It was of the view that this continued lack of acceptance necessarily impacted on the Tribunal s judgment of his level of insight. 22. The Tribunal determined that, whatever the understandable human reactions at play in Dr Edohasim s response to the tragic consequences of the crash and his part in them, his apparent lack of acceptance of the findings of the Criminal Court and of his personal criminal responsibility, despite the doubtless long period of 6

7 reflection he has made, is a significant factor in its consideration of insight and therefore impairment. 23. Taking into account both the seriousness of the convictions and Dr Edohasim s continued lack of full insight into his actions, as demonstrated by his continued lack of acceptance of criminal culpability, the Tribunal determined that public confidence in the profession and the need to maintain proper professional standards and conduct for members of the profession, would be undermined if a decision of impaired fitness to practise were not made. 24. The Tribunal accepted that an error made in driving does not impinge in any way on Dr Edohasim s professional abilities and all the evidence it has received confirms he is a hardworking and dedicated clinician of excellent character. The conviction is in no way connected to Dr Edohasim s clinical practice and no risk to patients has been presented. The Tribunal found that the risk of him repeating such an action was negligible. It considered there was no necessity for any finding of impairment on the grounds of protecting the public alone. 25. In all the circumstances, the Tribunal considered that a finding of impairment was necessary to promote and maintain public confidence in the medical profession, and to promote and maintain proper professional standards and conduct for members of the profession. 26. The Tribunal has therefore determined that Dr Edohasim s fitness to practice is currently impaired by reason of his conviction. Determination on Sanction - 15/06/ Having determined that Dr Edohasim s fitness to practise is impaired by reason of conviction, the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction, if any, to impose. The Evidence 2. The Tribunal received no further evidence at this stage. It has taken into account evidence received during the earlier stages of the hearing, where relevant, in reaching a decision on sanction. Submissions 3. On behalf of the GMC, Mr Horgan submitted that the appropriate sanction in Dr Edohasim s case was one of suspension. He referred the Tribunal to a number of paragraphs of the Sanctions Guidance (February 2018) ( the SG ), which he submitted were relevant to this case - drawing its attention in particular to paragraphs dealing with 7

8 insight. He reminded the Tribunal of its findings at the impairment stage regarding a lack of full insight on Dr Edohasim s part. 4. Mr Horgan submitted that, in light of the gravity of Dr Edohasim s conviction and given a lack of exceptional circumstances, taking no action was not appropriate. He told the Tribunal that conditions would not be workable, as Dr Edohasim is currently serving a custodial sentence. He submitted that, in any case, such a sanction would not maintain public confidence or uphold proper standards in the profession. He said that a sanction of suspension was required in order to prevent public confidence in the profession being seriously undermined. 5. On behalf of Dr Edohasim, Mr Stern submitted that no action was required. He submitted that the paragraphs of the SG referred to by Mr Horgan in relation to insight were not applicable, given the nature and circumstances of the unintended act leading to the collision and the conviction. He submitted that the finding of impaired fitness to practise made by the Tribunal was sufficient in itself, without a need to impose a sanction. He stated that any issue relating to insight has no connection to Dr Edohasim s ability to practise as a doctor. 6. Mr Stern drew the Tribunal s attention to the references and testimonials provided, submitting that they demonstrated that people thought highly of Dr Edohasim, as a committed doctor with compassion for others. He conceded that conditions would not be workable in the light of Dr Edohasim s current imprisonment and were therefore inappropriate. He questioned the purpose behind any period of suspension, and submitted that if the Tribunal determined it was necessary to suspend Dr Edohasim s registration, then this should be of a short duration. The only reason to suspend would, in his assertion, be to mark or acknowledge the conviction. He told the Tribunal that erasure would be unnecessary and wholly disproportionate as Dr Edohasim s actions were not fundamentally incompatible with continued registration. The Tribunal s Determination on Sanction 7. The decision as to the appropriate sanction, if any, is a matter for this Tribunal exercising its own judgment. In reaching its decision, the Tribunal has taken account of the SG and the statutory over-arching objective. The Tribunal recognises that the purpose of a sanction is not to be punitive, although it may have a punitive effect. 8. Throughout its deliberations the Tribunal has applied the principle of proportionality, balancing Dr Edohasim s interests with the public interest. It reminded itself that it should only impose the minimum sanction necessary to achieve the over-arching objective. In deciding what sanction, if any, to impose the Tribunal considered each of the sanctions available, starting with the least 8

9 restrictive. It also considered and balanced the mitigating and aggravating factors in this case. Mitigating and Aggravating factors 9. The Tribunal first deliberated on and balanced the mitigating and aggravating factors in this case. Mitigating factors 10. The Tribunal noted that Dr Edohasim, through his representatives, made full admissions to the Allegation at the hearing. 11. The Tribunal placed considerable weight on the overwhelmingly positive testimonials and references provided on Dr Edohasim s behalf, noting that many of them were written specifically for this hearing, with referees fully aware of the convictions. In its judgment these documents described a committed clinician of excellent character. 12. The Tribunal found Dr Edohasim s clear willingness and determination to rebuild his life after a tragic incident, as set out in his witness statement, to be to his credit. It considered that this element was further strengthened by the support of his wife and family, and a supportive circle of friends and colleagues, including his former employer. 13. Although serious, the Tribunal noted that the substantive incident was isolated and entirely unrelated to Dr Edohasim s clinical practice, which occurred over two years ago. It was satisfied that any risk of repetition is negligible. Aggravating factors 14. The Tribunal considered that the seriousness of Dr Edohasim s conviction; the gravamen of the offence and the length of the sentence of imprisonment imposed, was the principal aggravating factor. It also considered the lack of evidence of full insight into his actions, in particular an explicit acknowledgment that he was found to be criminally responsible for the incident, to be a further, although subsidiary, aggravating feature. No action 15. The Tribunal first considered whether to conclude Dr Edohasim s case by taking no action with regard to his registration. It has already determined that his fitness to practise is impaired by reason of conviction. It determined that given the seriousness of the Court s findings, the custodial sentence imposed, and where there 9

10 was no finding of exceptional circumstances, it would be inappropriate to conclude this case by taking no action as this would not satisfy the over-arching objective. Conditions 16. The Tribunal next considered whether it would be sufficient to impose conditions on Dr Edohasim s registration. It bore in mind that any conditions imposed would need to be appropriate, proportionate, workable and measurable. Both the GMC and Dr Edohasim s representative stated that such a sanction was not a viable option. The Tribunal considered that given Dr Edohasim is currently serving a custodial sentence, conditions were neither appropriate nor workable in this case and would serve no effective purpose. Further, it was of the view that a period of conditional registration would not adequately mark the seriousness of Dr Edohasim s conviction and satisfy the overarching objective. Suspension 17. The Tribunal moved on to consider whether it would be sufficient to impose a period of suspension on Dr Edohasim s registration. The Tribunal has borne in mind the SG in relation to suspension, in particular paragraphs 91 and 92 in which it states: 91 Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and public about what is regarded as behaviour unbefitting a registered doctor. Suspension from the medical register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension, although this is not its intention. 92 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). 18. The Tribunal was mindful that the primary purpose of any sanction in this case is to maintain public confidence in the profession and appropriate professional standards. In its judgment there are no patient or public safety concerns. In determining the sanction, the Tribunal therefore seeks to balance the seriousness of the conviction proportionately with the mitigating features and the interests of the doctor. 10

11 19. In all the circumstances, the Tribunal has determined that the appropriate sanction is one of suspension for a period of nine months. In deciding on this period of time, it took into account principally the seriousness of his conviction and the need to demonstrate clearly to him, the profession and the public the requirement for doctors to act within the law. It determined that a suspension of this length would promote and maintain both public confidence in the profession, and standards and conduct for members of the profession. Further, it was satisfied that this period will provide Dr Edohasim with the opportunity to further reflect on the incident leading to his conviction and prepare for a future return to work. 20. In deciding on the length of suspension, the Tribunal took into account paragraph 119 of the SG which is as follows: 119 As a general principle, where a doctor has been convicted of a serious criminal offence or offences, they should not be permitted to resume unrestricted practice until they have completed their sentence. 21. The Tribunal noted that the proposition set out in this paragraph is derived from the case of The Council for the Regulation of Health Care Professionals v General Dental Council [2005] EWHC 87 Admin ( the Fleischmann case ), upon which the Tribunal was addressed by the parties. Although the factual scenario was clearly distinct from this case, the Appellate Court held that the practitioner in that case should not be permitted to resume practice until his three year Community Sentence Order expired. 22. Dr Edohasim has committed a serious criminal offence, but in the Tribunal s view there is no risk to the public or patients from Dr Edohasim. Rather, the Tribunal accepted that the testimonials and references provided demonstrate that he is a dedicated and competent clinician who has suffered greatly due to the loss of his daughter. It was of the view that no useful purpose would be served in depriving the public of a useful doctor for a longer period than necessary to mark the seriousness of his conviction. 23. The Tribunal observed that, although Dr Edohasim s sentence was reduced to three years imprisonment by the Court of Appeal, he may serve less than half of this period. It considered that, in these circumstances, the general principle set out in paragraph 119, should not necessarily preclude Dr Edohasim from returning to practise before the sentence expiry date. It was of the view that, following the expiry of the custodial period of his sentence and this suspension, as long as Dr Edohasim is capable of demonstrating he can return to practise, he should be able to contribute once more as a valuable, skilled member of the profession. 24. The Tribunal considered the appropriateness of erasure in this case, concluding that such a sanction would be wholly disproportionate and unnecessary. 11

12 It determined that Dr Edohasim s conduct leading to his conviction is not fundamentally incompatible with continued registration. Review hearing 25. The Tribunal determined to direct a review of Dr Edohasim s case. A review hearing will convene shortly before the end of the period of suspension, unless an early review is sought. The Tribunal wishes to clarify that a future Tribunal may be greatly assisted by Dr Edohasim demonstrating how he has reflected on the conviction and his own culpability for the incident. It therefore may assist the reviewing Tribunal if Dr Edohasim provides: evidence that he has kept his medical knowledge up to date. The Tribunal took into account the limitations Dr Edohasim s imprisonment will place upon him with regard to learning opportunities, but noted that he should have access to text books and other reading material; an outline plan for Continuing Professional Development and preparation for a return to practise; a reflective document taking into account the basis of his conviction and sentence, which includes evidence of consideration of his culpability for the incident leading to his conviction; references and/or testimonials which may be personal or professional; any other information that he considers will assist. Determination on Immediate Order - 15/06/ Having determined to suspend Dr Edohasim s registration for a period of nine months, the Tribunal has considered, in accordance with Rule 17(2)(o) of the Rules, whether Dr Edohasim s registration should be subject to an immediate order. Submissions 2. On behalf of the GMC, Mr Horgan submitted that while it was at the Tribunal s discretion whether to impose an immediate order, it would be appropriate in the present case. He submitted that such an order is necessary to protect the public s confidence in the medical profession. 3. On behalf of Dr Edohasim, Mr Stern submitted that it was a matter for the Tribunal as to whether or not it imposed an immediate order, but that such an order would serve no purpose, given that Dr Edohasim is currently serving a custodial sentence. The Tribunal s Determination 4. Having considered the submissions of Mr Horgan and those of Mr Stern, alongside paragraphs of the Sanctions Guidance (February 2018) which 12

13 relate to immediate orders, the Tribunal balanced the public interest against Dr Edohasim s own interests. 5. The Tribunal took into account that there are no concerns with regard to public protection or patient safety in this case. However, it determined that, given the seriousness of Dr Edohasim s conviction, and the propriety of a clinician in custody not having restrictions on his registration for the period before the substantive sanction comes into effect, it determined that an immediate order was required in the public interest. 6. This means that Dr Edohasim s registration will be suspended from when notification is deemed to have been served on him. The substantive direction, as already announced, will take effect 28 days from when written notice of this determination has been served upon Dr Edohasim, unless an appeal is made in the interim. If an appeal is made, the immediate order will remain in force until the appeal has concluded. 7. The interim order currently imposed on Dr Edohasim s registration will be revoked when the immediate order takes effect. 8. That concludes this case. Confirmed Date 15 June 2018 Mr Nicholas Flanagan, Chair 13