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

Transcription

1 PUBLIC RECORD Dates: 06/11/ /11/2017 Medical Practitioner s name: Dr Erik MILNER GMC reference number: Primary medical qualification: Type of case New - Conviction / Caution MB ChB 1989 University of Birmingham Outcome on impairment Impaired Summary of outcome Erasure Immediate order imposed Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Ms Angela Black Dr Kevin Hope Dr Alexandra McMillan Tribunal Clerk: Mrs Jo Johnson Attendance and Representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Present and represented Mr Paul Ozin, QC, instructed by Carter Moore Solicitors Mr David Birrell, Counsel Allegation and Findings of Fact That being registered under the Medical Act 1983 (as amended): 1. On March 2017 at Northern Derbyshire Magistrates Court you were convicted of: a. driving a motor vehicle after consuming an amount of alcohol exceeding the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act 1

2 1988 and Schedule 2 to the Road Traffic Offenders Act 1988; Admitted and Found Proved b. failing to stop after an accident, an offence contrary to section 170(4) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act Admitted and Found Proved 2. On 23 March 2017 you were sentenced to: a. committal to prison for 16 weeks suspended for 18 months; Admitted and Found Proved b. pay a surcharge to fund victim services of ; Admitted and Found Proved c. disqualification from holding or obtaining a driving licence for 40 months from 16 March 2017; Admitted and Found Proved d. XXX e. comply with any instructions of the responsible officer to attend appointments or to participate in any activity as required by the responsible officer up to a maximum of six days. Admitted and Found Proved And that by reason of the matters set out above your fitness to practise is impaired because of your conviction. Attendance of Press / Public The tribunal agreed, in accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004, that the press and public be excluded from those parts of the hearing where matters under consideration were deemed confidential. Determination on Facts and Impairment - 06/11/2017 Dr Milner: 1. At the outset of this hearing, the tribunal acceded to an application for parts of this hearing, XXX to be held in private. This determination will therefore be read in private. However, as this case involves your conviction a redacted version will be published at the close of the hearing with matters XXX having been removed. 2

3 Application to Amend the Allegation under Rule 17(6) 2. Mr Birrell, on behalf of the General Medical Council, made an application under Rule 17(6) of the GMC (Fitness to Practise) Rules 2004, to amend the date in the stem of paragraph 1 of the allegation to read: 1. On March 2017 at Northern Derbyshire Magistrates Court you were convicted of: Mr Ozin on your behalf did not object to the amendment and the tribunal agreed to amend the date. Facts 3. During the hearing you admitted all the factual allegations: 1. On 16 March 2017 at Northern Derbyshire Magistrates Court you were convicted of: a. driving a motor vehicle after consuming an amount of alcohol exceeding the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988; b. failing to stop after an accident, an offence contrary to section 170(4) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act On 23 March 2017 you were sentenced to: a. committal to prison for 16 weeks suspended for 18 months; b. pay a surcharge to fund victim services of ; c. disqualification from holding or obtaining a driving licence for 40 months from 16 March 2017; d. XXX e. comply with any instructions of the responsible officer to attend appointments or to participate in any activity as required by the responsible officer up to a maximum of six days. 4. The tribunal found the Allegation proved in full. 3

4 Background to the case 5. On 21 December 2016 you were working at Newholme Hospital in Bakewell. At lunchtime you were going to eat in the hospital canteen but later decided to eat out at a restaurant instead. You stated that you consumed three pints of beer. At 2.19pm on Hassop road, Hassop, you were involved in a road traffic accident. Your vehicle struck a wall and this caused your vehicle to roll onto its roof before it collided with another motor vehicle. This resulted in injuries to yourself and the driver of the other vehicle. They suffered injuries including a cracked rib and bruised sternum. You subsequently fled the scene and did not speak to or exchange details with the injured driver. You were located some time later after an extensive police search of the area. The police noted that XXX and, when asked, you admitted that you had been involved in a road traffic accident. Due to you smelling of alcohol a roadside breath test was conducted which you failed. You were then arrested on suspicion of drink driving and taken to Buxton Custody Suite. Because of your involvement in a high speed road traffic accident and due to concerns about your well-being you were subsequently taken to hospital as a precautionary measure. Whilst at hospital a urine sample was taken (this was approximately 7 ½ hours after the incident occurred) which, after analysis, was found to contain 124mg of ethanol (alcohol) in 100ml of urine. The legal limit is 107mg in 100ml. 6. On 22 December 2017 you contacted Dr A, Medical Director at Derbyshire Healthcare NHS Foundation Trust, to advise him of the incident on 21 December In an dated 3 January 2017 to the GMC Dr A noted that you had been vague about the details of the incident and stated that you could not recall any of the details of the accident. 7. You pleaded guilty to the offences and were sentenced on the 23 March 2017 (details set out in paragraph 3 above). The sentencing remarks noted on the Certificate of Conviction were as follows: so serious only custody is justified because previous offence involving alcohol and failing to stop and leaving the scene, very aggravated offence and failing to stop, left the scene found by police, accident involving serious personal injury to [the other driver], evidence of bad driving, you were over the legal limit 7.5 hours after the accident. 8. The tribunal has been told that you have previous convictions for similar offences which took place in June You pleaded guilty to three offences: driving with excess alcohol; failing to report an accident; and failure to stop after an accident. You were subsequently fined 1412 and disqualified from driving for 12 months. These convictions led to you being referred to the GMC and in December 2012 you agreed to a number of undertakings XXX. The undertakings were amended in February 2014 XXX. 4

5 Evidence 9. The Tribunal has received documentary evidence including the following: Certificate of Conviction dated 28 November 2011 Certificate of Conviction dated 23 March 2017 Signed Undertakings dated 5 December 2012 and 1 February from Dr A dated 3 January 2017 Police Report Your comments for the GMC Case Examiner following your 2017 conviction 360 Degree Feedback Report XXX XXX Workplace Reports Testimonial Bundle. Impairment 10. The tribunal has considered whether, on the basis of the facts found proved, your fitness to practise is impaired by reason of your conviction. The tribunal has taken into account all the evidence before it and the submissions made by Mr Birrell, Counsel, on behalf of the GMC and those made by Mr Ozin, QC, on your behalf. Submissions 11. Mr Birrell submitted that although the tribunal has been provided with material relating to XXX, first and foremost this is a conviction case. It was his submission that your fitness to practise is impaired. Mr Birrell submitted that the misconduct in your case is very serious and that, not for the first time, you have broken the law. He submitted that any drink driving conviction is serious but in your case it is extremely serious for the following reasons: You consumed alcohol whilst on duty working as a Consultant Psychiatrist. It is likely that you consumed a significant amount of alcohol because at 10pm, a number of hours after the incident, you were still over the drink drive limit. You were involved in a serious road traffic accident. According to the police, the high speed collision caused injuries to yourself and the other driver. The consequences could have been far worse. You made off from the scene and remained at large for some time. Mr Birrell submitted that the tribunal may consider it highly irresponsible of you to 5

6 make no effort to check on the well-being of the other driver. He submitted that one interpretation could be that you were deliberately avoiding the police because you knew you were over the drink drive limit. This was your second conviction in six years for driving over the limit and leaving the scene of the accident. Your convictions led to a custodial sentence. 12. Mr Birrell submitted that your conduct brought yourself and the profession into disrepute and undermined public confidence in the profession. It was his submission that only a finding of impairment would uphold public confidence in the profession and maintain proper professional standards of behaviour. 13. Mr Ozin, on your behalf, submitted that impairment was not disputed. XXX Tribunal s Decision 14. Whilst the tribunal has borne in mind the submissions made, the issue of impairment is one for it to determine exercising its own judgment. In making its decision, the tribunal has borne in mind its statutory overarching objective to protect and promote the health, safety and wellbeing of the public, promote and maintain public confidence in the medical profession and promote and maintain proper professional standards and conduct for members of that profession. 15. The tribunal had regard to the 2013 edition of Good Medical Practice (GMP). In particular paragraph 65, which states: You must make sure that your conduct justifies your patients trust in you and the public s trust in the profession. 16. The tribunal considers your convictions to be extremely serious, and are aggravated by the fact that these were your second convictions for driving over the limit and leaving the scene of an accident. It was particularly concerned that the events in December 2016 took place whilst you were on duty as a Consultant Psychiatrist and resulted in your being given a custodial sentence, albeit suspended. You put the safety of the public at risk and you have breached GMP. The tribunal has determined that by your actions you have brought the profession into disrepute. 17. The tribunal has given due consideration to the wider public interest. It has concluded that public confidence in the profession would be undermined if a finding of impairment were not made given the serious nature of the matters for which you were convicted. 18. The tribunal has therefore found that your fitness to practise is currently impaired by reason of your convictions. 6

7 Determination on Sanction - 07/11/2017 Dr Milner: 1. Having determined that your fitness to practise is impaired by reason of your convictions, the tribunal has considered the submissions made by Mr Birrell, on behalf of the GMC and those made by Mr Ozin, on your behalf, regarding the appropriate sanction, if any, that should be imposed on your registration. 2. At this stage of the proceedings you gave oral evidence, the tribunal also heard oral evidence, on your behalf, from Mr D, Registered Mental Nurse. Mr D worked with you at Derbyshire Mental Health Trust. Submissions 3. The tribunal does not intend to rehearse the submissions in full as these are a matter of record. 4. Mr Birrell submitted that the only appropriate sanction in your case was erasure. He again emphasised that yours is a conviction case XXX 5. Mr Birrell submitted that the tribunal would need to consider your insight and referred the tribunal to your oral evidence. He submitted that you were less than candid when you told Dr A about the incident on the 21 December He submitted that you spoke to Dr A after your police interview when you had been asked why you had left the scene of the incident. You knew that you had done this but you failed to disclose this to Dr A. It was Mr Birrell s submission that one view was that you were seeking to minimise your behaviour. Further he submitted that the tribunal might have some concerns about other aspects of your evidence. You were not able to answer a number of key questions, including why you had left the scene of the accident, where you went and what you were doing in the hours before you were arrested by the police. Mr Birrell submitted that you cited XXX but you had been taken to hospital XXX as a precautionary measure and had been discharged quickly into police custody. He submitted that an alternative explanation was your appreciation that you were over the drink-drive limit and that the police would attend the scene of the accident; you fled hoping your alcohol levels would reduce. 6. Mr Birrell submitted that, in your oral evidence, you said a number of things that might concern the tribunal. You admitted that, on the evening of the 20 December 2016, you had drunk a lot of alcohol with your step-son and this was to excess. XXX Further you admitted it was possible that there was still alcohol in your system when you went into work the next day. Also, since the accident, there had been two further incidents which had brought you to the attention of the police. XXX 7

8 7. Finally Mr Birrell submitted that erasure was serious but yours was a serious conviction. He then went through the sanctions as set out in the Sanctions guidance (May 2017). 8. Mr Ozin submitted that the defining feature in your case was that your convictions were inextricably linked with XXX. It was his submission that by failing to take this into account the GMC had not adopted a fair minded approach to your case. He invited the tribunal to reject the approach advocated by the GMC. He submitted that the tribunal should direct a sanction which was necessary and proportionate and protected patients and patient safety and maintained confidence and upheld proper standards of conduct and behaviour. Mr Ozin submitted that the tribunal should ask itself why this particular incident had occurred and, in answering that question, how a well-informed member of the public would regard it. XXX. He submitted XXX was at the very heart of your case XXX. 9. It was Mr Ozin s submission that the GMC submission was fundamentally illconceived, XXX 10. Mr Ozin recognised that this was a second incident of drink-driving, and that this was serious: a member of the public had been injured. But the tribunal should consider this in context and that you had had an exemplary career as an accomplished and highly valued psychiatrist XXX. It was his submission that XXX and your colleagues had had no concerns about your clinical practice. 11. XXX. He submitted that the stress of your former working environment was highly material XXX and now that you were no longer working and did not plan to return to work in the near future this stressor had been removed. Mr Ozin told the tribunal that you were mortified that your actions had caused injuries to a member of the public and you had reflected on this in a way that the tribunal might consider demonstrated insight. 12. Mr Ozin told the tribunal that your current proposal was to abstain from work until your accelerated retirement date in early This would result in the removal of a stressor XXX. You needed to remain registered as a medical practitioner to qualify for early retirement in He submitted that you had already suffered a significant criminal penalty and whilst you recognised that the tribunal would need to take some action on your registration the proportionate sanction was one of conditions. However, Mr Ozin submitted that if the tribunal were not with him on his primary submission that conditions were appropriate in your case, then erasure would be disproportionate and the tribunal should suspend your registration. 13. Mr Ozin submitted that you had been given a severe sentence. In your oral evidence you had explained how it had affected you and that it was sad that you were ending your career with black mark on it. Mr Ozin referred the tribunal to the 8

9 testimonials submitted on your behalf and your 360 degree feedback. He then referred the tribunal to the Sanctions guidance (May 2017). Finally, he submitted that you could comply with conditions particularly since the stressor of your work environment has now been removed. Tribunal Decision 14. The tribunal is aware that the decision as to the appropriate sanction, if any, to impose on your registration is a matter for this tribunal exercising its independent judgment. In reaching its decision, the tribunal has taken account of the Sanctions guidance (May 2017). 15. Throughout its deliberations, the tribunal considered its overarching objective which is 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 the medical profession. The tribunal has also borne in mind that the purpose of a sanction is not to be punitive, but to protect patients and the public interest, although it may have a punitive effect. 16. Generally the tribunal bears in mind that the magistrates would have taken into account the relevant circumstances of the offences for which you were convicted, and any submissions and evidence XXX at the material time. This tribunal cannot look behind those convictions. Your Oral Evidence 17. The tribunal formed the view that your oral evidence was principally characterised by your rationalising your actions rather than accepting your wrong doing. The tribunal was concerned by your stance on undertakings in that you did not appear to appreciate that they are a formal requirement binding on yourself. On the contrary you adopted as a positive stance that you were compliant the majority of the time. Similarly, when it transpired that you had been drinking heavily with your step-son the night before the incident in December 2016 you described yourself as fit for work the next day aside from the possibility of alcohol. Conspicuous by its absence was any acknowledgement of the impact of your behaviour on the reputation of the profession, even when invited to comment on this. Rather your focus was confined to the impact on yourself and your reputation. 18. The tribunal identified the following aggravating and mitigating factors in your case: 9

10 Aggravating Factors the incident in December 2016 was a repetition of a similar earlier offence but was more serious, and resulted in a custodial sentence the incident in December 2016 took place whilst you were on duty you had been drinking heavily the night before the incident XXX you have not acknowledged the impact your actions had on the reputation of the profession your lack of full insight the harm you caused to the driver of the other vehicle, and that you made off from the scene of the accident. Mitigating Factors the work you have undertaken XXX as part of your sentencing you are currently on XXX leave from your employment and therefore removed from work related stress. Taking no action 19. The tribunal considered whether to conclude your case and take no action. It determined that, in view of the seriousness of your convictions and the sentence imposed, it would not be sufficient, proportionate or in the public interest to conclude this case by taking no action. Furthermore, the tribunal considered that there were no exceptional circumstances which might justify that conclusion. Conditions 20. The tribunal next considered whether it would be appropriate to impose a period of conditions on your registration. It has borne in mind that any conditions must be appropriate, proportionate, workable and measurable. The tribunal noted that you have a history of not complying with your undertakings. XXX The tribunal therefore could not be satisfied that you would comply with conditions. It determined that conditions would not be appropriate in your case. Furthermore, the tribunal determined that, given the seriousness of your convictions, conditions would not address the maintenance of public confidence in the profession and upholding of proper standards of conduct and behaviour. Suspension 21. The tribunal then considered whether it would be sufficient to suspend your registration. In so doing it had regard to the relevant paragraphs in the Sanctions guidance (May 2017). It considered paragraph 92 which states: 10

11 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). In relation to Paragraph 97 e of the Sanctions guidance (May 2017) the tribunal determined, on the evidence, that remediation is unlikely to be successful in your case. This is the second time that you have offended whilst under the influence of alcohol. You have also previously failed to comply with undertakings imposed on your registration. The tribunal was concerned to hear that since your conviction in 2016 you have now twice come to the attention of the police because of your behaviour after consuming alcohol. The tribunal determined that you remain at risk of poor decision making and bringing the medical profession further into disrepute. XXX 22. In all the circumstances, the tribunal has determined that it would not be appropriate to suspend your registration. Erasure 23. The tribunal therefore determined that erasure is the appropriate and proportionate response in your case. The tribunal had particular regard to paragraph 108 Sanctions guidance (May 2017) which states: Erasure may be appropriate even where the doctor does not present a risk to patient safety, but where this action is necessary to maintain public confidence in the profession. For example, if a doctor has shown a blatant disregard for the safeguards designed to protect members of the public and maintain high standards within the profession that is incompatible with continued registration as a doctor. Paragraph 160 states: Doctors are expected to act with honesty and integrity and uphold the law this includes their use of drugs and alcohol. Any serious or persistent failure in this regard that puts patients at risk or undermines public confidence in doctors will put their registration at risk. Further the tribunal noted paragraph 162 under the heading of Drug or alcohol misuse linked to misconduct or criminal offences states: 11

12 While misuse of drugs or alcohol is serious, and not solely where linked to criminal conduct, there are certain factors that aggravate these issues. The aggravating factors that are likely to lead the tribunal to consider taking more serious action (this list is not exhaustive) are: a b c d intoxication in the workplace or while on duty misuse of alcohol or drugs that has impacted on the doctor s clinical performance and caused serious harm to patients or put public safety at serious risk. misuse of alcohol or drugs that led to a criminal conviction, particularly where a custodial sentence was imposed. 24. The tribunal determined that you have sought to minimise your actions and not taken responsibility for them. Your behaviour shows a cavalier attitude to alcohol. XXX Whilst noting your references and testimonials which raise no clinical concerns about your practice, the tribunal has determined that your convictions have brought the reputation of the profession into disrepute. It has therefore determined that the erasure of your name from the Medical Register is the proportionate sanction in your case, given the adverse impact of your convictions on public confidence in the profession, and the need to uphold standards. 25. The effect of this direction is that, unless you exercise your right of appeal, this decision will take effect 28 days from when written notice of this determination is deemed to have been served upon you. A note explaining your right of appeal will be provided to you. Determination on Immediate Order - 07/11/2017 Dr Milner: 1. Having determined to erase your name from the Medical Register, the tribunal considered in accordance with Section 38(1) of the Medical Act 1983, as amended, whether to impose an immediate order of suspension on your registration. GMC submissions 2. Mr Birrell submitted that he is not instructed to ask for an immediate order, given that you are not currently working. Submissions on your behalf 12

13 3. Mr Ozin submitted that no risk to patients has been identified in this case. Furthermore, the public interest concerns do not require an immediate order as you are not practising and have no intention of practising. He also raised a concern that the imposition of an immediate order may adversely impact on your ability to retire early. However, he was not able to verify this. Tribunal decision 4. In making its decision the tribunal exercised its own judgement. It had regard to paragraph 172 of the Sanctions guidance (May 2017) which states: The tribunal may impose an immediate order if it determines that it is necessary to protect members of the public, or is otherwise in the public interest, or is in the best interests of the doctor 5. The tribunal had regard to the principle of proportionality and balanced your interests with the public interest. 6. The tribunal determined to impose an immediate order of suspension. It accepted that there are no patient safety issues in this case. Nevertheless, it considered that, given the seriousness of the tribunal s findings and the need to maintain public confidence in the profession, it would be incompatible not to impose an immediate order. 7. The substantive direction for erasure, as already announced, will take effect 28 days from when notice is deemed to have been served upon you, unless you lodge an appeal in the interim. If you do lodge an appeal, the immediate order for suspension will remain in force until the appeal is determined. 8. That concludes this case. Confirmed Date 07 November 2017 Ms Angela Black, Chair 13