HEARING HEARD IN PUBLIC

Transcription

1 HEARING HEARD IN PUBLIC MARQUEZ LOPEZ, Daniel Registration No: PROFESSIONAL CONDUCT COMMITTEE JULY 2018 OUTCOME: Fitness to Practise Impaired. Reprimand Issued Daniel MARQUEZ LOPEZ, a dentist, Grado en Odontologia Seville 2015, was summoned to appear before the Professional Conduct Committee on 5 July 2018 for an inquiry into the following charge: Charge (as amended on 5 July 2018) That being a registered Dentist; 1. On 26 December 2008, you were convicted at Seville Criminal Court of driving under the influence of alcohol or drugs. 2. On your application form for registration with the General Dental Council dated '18 September 20'15, you ticked the box "No" in response to the question: "Have you been convicted of a criminal offence and/or cautioned and/or are you currently subject to any police investigations which might lead to a conviction or a caution in the UK or any other country?" 3. Your conduct in relation to allegation 2 was: a. Misleading, b. Dishonest. 4. On your National Performers Lists Application Form with the NHS England dated 17 October 2016 and signed on 08 December 2016, you ticked the box "No" in response to the question: "Have you been convicted elsewhere of an offence which would constitute a criminal offence if committed in England and Wales?" 5. Your conduct in relation to allegation 4 was: a. Misleading, b. Dishonest. By reason of the matters alleged, your fitness to practise is impaired by reason of your misconduct. On 5 July 2018, the Chairman made the following statement regarding the finding of facts: Mr Marquez-Lopez This is the Professional Conduct Committee s inquiry into the facts which form the basis of the allegation against you that your fitness to practise is impaired by reason of misconduct. MARQUEZ LOPEZ, D Professional Conduct Committee July 2018 Page -1/9-

2 You were not legally represented in this hearing but you were assisted by an appointed interpreter. Background This case relates your completion of an application form for registration with the General Dental Council (GDC) and for inclusion in the NHS England National Performers List. It is alleged that you had a criminal conviction, but that in your application to the GDC dated 18 September 2015, you ticked the box No in response to the question Have you been convicted of a criminal offence and/or cautioned and/or are you currently subject to any police investigation which might lead to a conviction or a caution in the UK or any other country? It is also alleged that on your application form to join the NHS England National Performers List dated 17 October 2016 and signed 8 December 2016, you ticked the box No in response to the question Have you been convicted elsewhere of an offence which would constitute a criminal offence if committed in England and Wales? In relation to both application forms, it is alleged that your conduct was misleading and dishonest. Preliminary Matters At the start of the hearing, you made admissions to a significant number of allegations. You did not admit that you acted dishonestly. Witness Statements The Committee received a witness statement dated 22 December 2017 and a supplemental statement dated 17 January 2018 from Witness 1, a GDC employee. It did not hear oral evidence from Witness 1. Witness 1 exhibited as part of his witness statement the application form you submitted dated 18 September 2015 for registration with the GDC. The Committee received a witness statement dated 26 February 2018 from Witness 2, an employee with the NHS. It did not hear oral evidence from Witness 2. Witness 2 exhibited as part of her statement the application form you submitted dated 17 October 2016 and signed 8 December 2016 for inclusion in the NHS England National Performers Lists. Your Oral Evidence The Committee heard oral evidence from you. It found you to be broadly credible but your evidence was undermined in some areas due to inconsistencies and contradictions. For instance, you told the Committee that your conviction was in 2008 and was not on your mind but you also told the Committee that you thought that the question in the application forms were asking for something more serious for example a conviction that resulted in a jail sentence. The Committee did not accept your evidence that your conviction was not in your mind given that you weighed up the importance of it when you were completing both application forms. The Committee accepted the advice of the Legal Adviser. In relation to the allegation on dishonesty the Committee was referred to the recent Supreme Court judgment in the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 where the test for dishonesty was revisited. "The test of dishonesty is as set out by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan and by Lord Hoffmann in Barlow Clowes: When dishonesty is in question the MARQUEZ LOPEZ, D Professional Conduct Committee July 2018 Page -2/9-

3 fact-finding tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest." The burden of proving the facts alleged is on the GDC and the standard of proof is the civil standard which is on the balance of probabilities. You are not required to prove anything. The Committee s findings in relation to each charge and head of charge are as follows: 1. On 26 December 2008, you were convicted at Seville Criminal Court of driving under the influence of alcohol or drugs. Admitted and Found Proved The Committee received the translated version of an extract from the Database of the Central Criminal Register in Spain, which states that you were convicted on 26 December 2008 at the Local Criminal Court of Seville of Driving Under the Influence of Alcohol or Drugs. You were given an 8-month driving ban and sentenced to 20 days community service and a daily fine of 3 euros per day for 4 months. The Committee accepted your admission and found this charge proved. 2. On your application form for registration with the General Dental Council dated 18 September 2015, you ticked the box "No" in response to the question: "Have you been convicted of a criminal offence and/or cautioned and/or are you currently subject to any police investigations which might lead to a conviction or a caution in the UK or any other country?" Admitted and Found Proved The Committee noted the application form completed by you dated 18 September You ticked the box No in response to the question about a conviction as alleged. The Committee accepted your admission and found this charge proved. 3. Your conduct in relation to allegation 2 was: 3. (a) Misleading, Admitted and Found Proved The Committee applied the ordinary and plain meaning of the word misleading that is creating a situation in which someone creates a wrong idea or false impression. You provided information to the GDC which gave the impression that you did not have a conviction. This information was not accurate. By providing false information, you misled the GDC as to your criminal convictions. The Committee accepted your admission and found this charge proved. MARQUEZ LOPEZ, D Professional Conduct Committee July 2018 Page -3/9-

4 3. (b) Dishonest. Not Admitted but Found Proved You were convicted at Seville Criminal Court of driving under the influence of alcohol or drugs. You did not disclose this conviction when you completed the application form for registration with the GDC. You therefore provided false information to the GDC which was misleading. The GDC application form contained guidance and information on convictions, including spent convictions. The Committee considered your state of mind at the time. It concluded that you were aware of the conviction at the time of completing the GDC application form. You said that your conviction was not at the forefront of your mind however the Committee did not accept your evidence. You received a sentence of 20 days community service which the Committee did not think would be easily forgotten. You said you made a decision about the seriousness of the conviction and that you felt that it would not come up in the police check. This led the Committee to conclude that you were aware of your conviction at the time of completing the GDC application form but you made a decision to tick No, because you didn t want to delay or cause any problems in the processing of your GDC application. The Committee found that ticking the box No in response to the question about criminal convictions, in the light of the clear guidance in GDC application form, and knowing that you had a conviction, would be regarded as dishonest by the objective standards of ordinary and decent people. 4. On your National Performers Lists Application Form with the NHS England dated 17 October 2016 and signed 8 December 2016, you ticked the box No in response to the question Have you been convicted elsewhere of an offence which would constitute a criminal offence if committed in England and Wales? Admitted and Found Proved The Committee noted the application form completed by you dated 17 October 2016 and signed 8 December 2016 for inclusion in the National Performers Lists of NHS England. The Committee accepted your admission and found this charge proved. 5. Your conduct in relation to allegation 4 was: 5. (a) Misleading Not Admitted but Found Proved The Committee applied the ordinary and plain meaning of the word misleading that is creating a situation in which someone creates a wrong idea or false impression. You provided information to the NHS which gave the impression that you did not have a conviction. This information was not accurate. By providing this information which was false, you misled the NHS as to your criminal convictions. The Committee found this charge proved. 5. (b) Dishonest MARQUEZ LOPEZ, D Professional Conduct Committee July 2018 Page -4/9-

5 Not Admitted but Found Proved You were convicted at Seville Criminal Court of driving under the influence of alcohol or drugs. You did not disclose this conviction when you completed application forms for inclusion in NHS England National Performers List. You therefore provided false information to the NHS which was misleading. The NHS application form contained information and explicit guidance on criminal convictions. The NHS England application form contained explicit guidance which stated The Rehabilitation of Offenders Act 1974 and The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 do not apply for the purpose of this declaration. Offences considered spent under that Act must be declared. You told the Committee that your spoken English was better at the time of completing the NHS England application form for inclusion in the National Performers List. You confirmed that you read the form, which includes guidance on foreign convictions and cautions, a number of times prior to submitting it. The Committee considered your state of mind at the time. It concluded that you were aware of the conviction at the time of completing the NHS application form. You said that your conviction was not at the forefront of your mind however the Committee did not accept your evidence. You received a sentence of 20 days community service which the Committee did not think would be easily forgotten. You said you made a decision about the seriousness of the conviction and that you felt that it would not come up in the police check. You also told the Committee that no one would employ you as a private dentist. This led the Committee to conclude that you were aware of your conviction at the time of completing the NHS application form but you made a decision to tick No possibly to facilitate and speed up your registration with the NHS. The Committee found that ticking the box No in response to the questions about criminal convictions, in the light of the clear guidance in the NHS form, and knowing that you had a conviction, would be regarded as dishonest by the objective standards of ordinary and decent people. We move to Stage Two. On 6 July 2018, the Chairman announced the determination as follows: Mr Marquez-Lopez, Having announced its decision on the facts, the Committee received submissions from Mr Middleton, on behalf of the General Dental Council (GDC) and from you, in accordance with Rule 20 of the Fitness to Practise Rules It received a testimonial dated 12 July 2017 and heard oral evidence from your employer and Practice Principal. You gave oral evidence at this stage of the hearing. The Committee found your evidence to be credible. The Committee accepted the advice of the Legal Adviser. The Committee reminded itself that its decisions on misconduct and impairment are matters for its own independent judgement. There is no burden or standard of proof at this stage of MARQUEZ LOPEZ, D Professional Conduct Committee July 2018 Page -5/9-

6 the proceedings. It had regard to the GDC s Standards for the Dental Team (September 2013). The Committee was referred to the cases of Remedy (UK) v GMC [2010] EWHC 1245 (Admin); Roylance (no 2) v GMC [2000] AC 311; Nandi v GMC [2004] EWHC 2317 (Admin) and Harris v Registrar of Driving Instructors [2010] EWHC 808. Mr Middleton confirmed that you have no previous fitness to practise history with the GDC. Misconduct The Committee first considered whether the facts found proved amount to misconduct. You were convicted of driving under the influence of alcohol or drugs on 26 December You applied for registration with the GDC on 18 September 2015 and for inclusion in NHS England s National Performers Lists on 17 October 2016 and you did not disclose your convictions on the application forms. Your actions were found to be misleading and dishonest. The Committee was of the view that you your conduct fell seriously short of what would be proper in the circumstances and breached the standards of the GDC Standards for the Dental Team (September 2013): Standard 1.3 Standard 9.1 Standard 9.3 You must be honest and act with integrity. Ensure that your conduct, both at work and in your personal life, justifies patients trust in you and the public s trust in the dental profession. You must inform the GDC if you are subject to criminal proceedings or a regulatory finding is made against you anywhere in the world. The Committee considered that misleading your regulator and the NHS by providing false information was serious. It was in no doubt that the facts found proved amount to misconduct. Current impairment The Committee next considered whether your fitness to practise is currently impaired by reason of your misconduct. It was referred to the cases of Cheatle v GMC [2009] EWHC 645 (Admin), Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Paula Grant [2011] EWHC 927 (Admin), Cohen v General Medical Council [2008] EWHC 581 (Admin), Kimmance v GMC [2016] EWHC 1808 (Admin). The Committee adopted the approach formulated by Dame Janet Smith in her Fifth Report from the Shipman case; that is, the PCC should ask itself: Do our findings of fact in respect of the doctor's misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or d. has in the past acted dishonestly and/or is liable to act dishonestly in the future. MARQUEZ LOPEZ, D Professional Conduct Committee July 2018 Page -6/9-

7 The Committee noted that this case does not involve clinical matters. In relation to the findings made in this case, the Committee considered that clearly your actions brought the profession into disrepute, breached fundamental tenets of the [dental] profession and were dishonest. In considering whether you are liable to act in the same manner in the future, the Committee considered whether your actions are remediable, have been remedied and whether there is a risk of repetition. The Committee acknowledged that it may be more difficult to demonstrate remediation in relation to non-clinical matters. In your oral evidence you told the Committee that you did not appreciate the difference between misleading behaviour and dishonesty until after the Committee s findings of facts decision was delivered. You said that being described as a dishonest person was hurtful and disrespectful to you as you considered yourself to be honest. You told the Committee that you had learnt a significant lesson from these proceedings and that you would exercise care when completing forms of any kind in the future, seeking help with any ambiguities you came across. You told the Committee that you are passionate about the dental profession and you enjoy your work. The Committee also considered your insight. In so doing it took account of the Guidance for the Practice Committees including Indicative Sanctions Guidance, October 2016, ( PCC Guidance ): 5.24 The panel should be aware that individuals may have different ways of expressing insight and that these may be impacted upon by an individual s circumstances as well as questions of culture and language For example, an individual using a second language may be using the constructs of their first language to order their sentences and statements, which could result in a loss of subtlety or of appropriate emphasis in the second language Given that the panel s interests are the protection of patients, the maintenance of public confidence in the profession and the promotion of appropriate standards and behaviour in the profession, the fact that a dental professional has recognised that corrective actions need to be undertaken is more important than the manner in which their insight is expressed. You demonstrated that you now had a good understanding of the severity and gravity of the findings made against you as a professional and on the dental profession. You told the Committee that being honest and trustworthy are very important to you. You explained the importance of honesty in your role as a dentist and you cited examples that demonstrated a good understanding of the need to be an honest professional. The Committee heard oral evidence from your practice principal and employer. He was also your supervisor in the period you were seeking inclusion in the NHS England National Performer s List. He confirmed that you immediately informed him of your conviction after you received your police check from Seville, Spain. He told the Committee that you had been working for him for a number of years, first as a Dental Hygienist and most recently as an Associate Dentist. He also told the Committee that he had no reason to question your honesty or probity in the time that you have worked with him. The Committee was satisfied from the evidence before it that the risk of repetition was low. It did not consider that a finding of impairment was necessary for the protection of the public. The Committee then considered whether a finding of impairment was required in the public interest to maintain public confidence in the profession and declare and uphold proper MARQUEZ LOPEZ, D Professional Conduct Committee July 2018 Page -7/9-

8 standards. It was of the view that a reasonable and informed member of the public, fully aware that you were found to be dishonest, would lose confidence in the profession and the dental regulator if a finding of impairment was not made in the circumstances of this case. The Committee therefore determined that your fitness to practise is currently impaired by reason of your misconduct. Sanction The Committee next considered what sanction, if any, to impose on your registration. It recognised that the purpose of a sanction was not to be punitive although it may have that effect. The Committee applied the principle of proportionality. In this it was assisted by having heard from you and thus having seen the salutary impact that these proceedings have had upon you. The Committee considered the mitigating and aggravating factors in this case. In mitigation, the Committee took account of your previous good character prior to the events in this case and your good conduct following the incident as attested to by your Practice Principal. You have demonstrated good insight into the gravity of the findings against you albeit you continue to deny that you had been dishonest. You have shown remorse and apologised to the Committee for your actions. You have fully engaged with the regulator s investigation and this hearing. You gave evidence at both stages of the hearing. There is no actual or risk of harm to patients and the public. Conversely the aggravating factors in this case are that the Committee made a finding of dishonesty on two counts which could have served to undermine the integrity of the register. The Committee was of the view that to conclude this case with no further action would be inappropriate and would not satisfy the public interest having found dishonesty and current impairment. The Committee considered the available sanctions in ascending order starting with the least serious. The Committee first considered a reprimand. The Committee found two occasions of deliberate dishonesty. It noted the PCC Guidance which states: A reprimand is the lowest sanction which can be applied and may therefore be appropriate where the misconduct or level of performance is at the lower end of the spectrum. A reprimand does not impose requirements on a registrant s practice and should therefore only be used in cases where he or she is fit to continue practising without restrictions. A reprimand might be appropriate if the circumstances do not pose a risk to patients or the public which requires rehabilitation or restriction of practice. A reprimand is publicly recorded as the outcome of the case against the registrant it concerns (the holding of the case is itself a matter of public record). The fact that the registrant has been issued with a reprimand and a copy of the public determination will appear alongside the registrant s name on the GDC register. A reprimand forms part of a registrant s fitness to practise history and is disclosable to prospective employers and prospective registrars in other jurisdictions. A reprimand may be suitable where most of the following factors are present (this list should not be taken to be exhaustive): there is no evidence to suggest that the dental professional poses any danger to the public; the dental professional has shown insight into his/her failings; MARQUEZ LOPEZ, D Professional Conduct Committee July 2018 Page -8/9-

9 the behaviour was an isolated incident; the behaviour was not deliberate; the dental professional acted under duress; the dental professional has genuinely expressed remorse; there is evidence that the dental professional has taken rehabilitative/corrective steps; the dental professional has no previous history. The Committee considered the seriousness of the dishonesty findings made. It carefully considered the PCC Guidance which states that failing to take reasonable steps to ensure that statements made in formal documents are accurate can be highly damaging to public confidence in the profession. It also recognised that: Dishonesty is serious even when it does not involve direct harm to patients (for example defrauding the NHS or providing misleading information) because it can undermine public confidence in the profession. The Privy Council has emphasised that Health Authorities must be able to place complete reliance on the integrity of practitioners and the Committee is entitled to regard conduct which undermines that confidence as calculated to reflect on the standards and reputation of the profession as a whole. There is no evidence that you pose any risk to the public or to your patients. As stated above you have demonstrated good insight into your misconduct in terms of how the findings made against you reflect upon you as a registrant and the profession generally. You have expressed genuine remorse. There is evidence before the Committee that you are a good dentist who is well regarded by his employer. For these reasons, the Committee was of the view that, having had full oversight of all the particular circumstances of this case, public confidence in the dental profession and the GDC as a regulator would be upheld and not undermined by the imposition of a reprimand. Whilst a reprimand is the least serious sanction that the Committee can impose it is nonetheless publicly recorded, forms part of a registrant s fitness to practise history and is disclosable to prospective employers and prospective Registrars in other jurisdictions. The Committee considered that a conditions of practice order would be inappropriate in a case such as this given that it does not involve clinical matters. In relation to a suspension order the Committee considered that it would be excessive and disproportionate given its conclusion that the risk of repetition is low, you have shown good insight into your conduct and there is no evidence of a harmful deep-seated personality or professional attitudinal problem. The Committee therefore determined that a reprimand would be appropriate and adequate to protect public confidence in the profession. The Committee therefore determined, pursuant to Section 27B (6)(d) of the Dentists Act 1984, as amended, that you shall be reprimanded with regard to your dishonest conduct. That concludes this case. MARQUEZ LOPEZ, D Professional Conduct Committee July 2018 Page -9/9-