That being registered under the Medical Act 1983 (as amended):

PUBLIC RECORD Dates: 09/11/2017 10/11/2017 Medical Practitioner s name: Dr Andrew MACKENZIE GMC reference number: 6134691 Primary medical qualification: Type of case New - Conviction / Caution MB ChB 2006 University of Edinburgh Outcome on impairment Impaired Summary of outcome: No action Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Mrs Claire Sharp Ms Elizabeth Daughters Dr Farah Yusuf Tribunal Clerk: Ms Josephine Jenner Attendance and Representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Present and represented Ms Mary O Rourke, QC, instructed by Burton Copeland Solicitors Ms Emma Gilsenan, Counsel Allegation and Findings of Fact That being registered under the Medical Act 1983 (as amended): 1. On 9 June 2017 at North Northumbria Magistrates Court you were convicted of causing serious injury by dangerous driving contrary to section 1A of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988. 1

2. On 7 July 2017 at Newcastle Crown Court you were sentenced to: a. 20 months imprisonment suspended for 24 months; b. 200 hours unpaid work; c. pay a victim surcharge of 140.00; d. disqualification from driving for two years (from 9 June 2017) e. disqualification from driving until you pass the Extended Driving Test. Attendance of Press / Public The hearing was all heard in public. Determination on Facts - 09/11/2017 Dr MacKenzie: 1. At the outset of these proceedings, through your Counsel, Ms O Rourke, you admitted paragraphs 1 and 2 of the Allegation in their entirety. 2. The Tribunal is aware that in respect of each of the matters set out in the Allegation the burden of proof rests with the GMC and the standard of proof is that applicable to civil proceedings, namely the balance of probabilities. The Tribunal has considered each paragraph of the Allegation separately. The Tribunal has made the following findings on the facts: That being registered under the Medical Act 1983 (as amended): 3. On 9 June 2017 at North Northumbria Magistrates Court you were convicted of causing serious injury by dangerous driving contrary to section 1A of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988. 4. On 7 July 2017 at Newcastle Crown Court you were sentenced to: a. 20 months imprisonment suspended for 24 months; Admitted and found proved 2

b. 200 hours unpaid work; c. pay a victim surcharge of 140.00; d. disqualification from driving for two years (from 9 June 2017); e. disqualification from driving until you pass the Extended Driving Test. 3. The Tribunal received a Certificate of Conviction dated 8 August 2017 as evidence. No evidence was adduced that Dr MacKenzie was not the person referred to in the Certificate of Conviction. In accordance with Rules 34(3) and (5) of the Rules, the Tribunal was satisfied that the Certificate of Conviction is conclusive evidence of the offences committed and the sentence imposed. The Tribunal found the Allegation proved in its entirety. Impairment Dr MacKenzie: 4. 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, your fitness to practice is impaired by reason of a conviction or caution for a criminal offence. Background 5. You obtained your primary medical qualification in 2006 from the University of Edinburgh. At the time of the events, you were practising as a Consultant Dermatologist. On 25 November 2016 you were driving on the A68 to Newcastle Airport in order to attend a course conference in London. You were driving behind three heavy goods vehicles for some time, and upon getting to Catcleugh Reservoir you attempted to overtake when the vehicles were approaching a left hand bend in the road. Upon attempting to overtake the second heavy goods vehicle, you were involved in a collision with an oncoming vehicle. 6. On 9 June 2017 you appeared at North Northumbria Magistrates Court, pled guilty and were convicted of two offences of causing serious injury by dangerous driving. You were sentenced on 7 July 2017 at Newcastle Crown Court to 20 months imprisonment suspended for 24 months, 200 hours of unpaid work, the payment of a victim surcharge of 140, disqualified from driving for two years (from 9 June 2017), and disqualified from driving until you pass the Extended Driving Test. 3

Evidence Documentary Evidence 7. The Tribunal took into account documentary evidence regarding your Conviction, which included, but was not limited to, the following: Photographs of the scene of the road traffic collision which took place on 25 November 2016 Record of Interview of Dr Andrew MacKenzie, 27 January 2017 Police report, 4 April 2017 Crown Court transcript, 7 July 2017 PNC Disclosure print of Dr Andrew Mackenzie, 26 July 2017 Certificate of Conviction, 8 August 2017 Witness Statement, Dr Andrew MacKenzie, 16 October 2017 Witness Statement, Dr B, Responsible Officer, NHS Borders, 2 October 2017 CPD documents, various Testimonial evidence, various Impairment 8. The Tribunal has considered whether, on the basis of the facts found proved, your fitness to practice is impaired by reason of your conviction. The Tribunal has taken into account all the evidence before it and the submissions made by Ms Gilsenan, Counsel, on behalf of the GMC and those made by Ms O Rourke, QC, on your behalf. Submissions GMC submissions 9. Ms Gilsenan, on behalf of the GMC submitted that your fitness to practice is impaired by reason of your conviction. Ms Gilsenan submitted that you undertook a driving manoeuvre which was dangerous and caused a road traffic collision. This led to four members of the public being injured, two seriously, as well as yourself. She submitted that Her Honour Judge Mallett at the Crown Court hearing concluded that your actions met the custodial threshold in terms of seriousness. 10. Ms Gilsenan submitted that as the custodial threshold had been passed, and you were currently serving a suspended sentence, that there would need to be exceptional circumstances in existence to justify allowing you to practice unrestricted. She said that there were no such circumstances in your case. Ms Gilsenan also submitted that in order to uphold public confidence in the medical profession, a finding of impairment was required. 4

Doctor submissions 11. Ms O Rourke submitted that she could not make a positive submission, and noted impairment was a matter of judgment for the Tribunal. Ms O Rourke submitted that you did not intend to cause injury either to yourself and others and that it was a miscalculation on your part that resulted in the road traffic collision and dangerous driving. You were remorseful, cooperated with the police investigation, and the evidence showed you had insight. 12. Ms O Rourke submitted to the Tribunal to consider the fact that you admitted your guilt at the first opportunity as identified by Her Honour Judge Mallett. Ms O Rourke further submitted that the Tribunal should look forward when considering your fitness to practice, and to bear in mind its role is not to punish you twice. However, she accepted that you were convicted relatively recently, and she could not say that the matter was historic. The Tribunal s Approach 13. The issue of impairment is one for the Tribunal to determine exercising its own judgment on the basis of the facts found proved and the evidence and submissions before it. The Tribunal was conscious that it must have regard to the statutory over-arching objective: 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 the profession. 14. The Tribunal considered whether or not Dr MacKenzie s conviction should lead to the conclusion that Dr MacKenzie s fitness to practice is impaired. The Tribunal bore in mind that although the events surrounding Dr MacKenzie s current conviction took place in the past, the question for it to determine was whether Dr MacKenzie s fitness to practice was currently impaired. The Tribunal s Decision 15. The Tribunal considers your conviction to be a very serious matter, and took into account the facts which it has previously found proved. It has borne in mind the fact that your actions resulted in two members of the public being seriously injured due to your dangerous driving on 25 November 2016. The Tribunal noted the Crown Court sentence and the fact that you have been sentenced to two suspended custodial sentences (concurrent), 200 hours unpaid work, and a disqualification from driving for 2 years. The Tribunal therefore considered the actions surrounding your conviction to be a serious breach of Good Medical Practice ( GMP ), in that you put public safety at risk, and undermined public confidence in the profession. 5

16. However, the Tribunal has also considered that you did not intend to cause the road traffic collision, nor to injure others or yourself. The Tribunal concluded that it was a serious lapse of judgement on your part that resulted in dangerous driving. The Tribunal has further noted, that you were the sole architect of the incident, and you accepted responsibility. 17. The Tribunal considered your witness statement in which you express your remorse and insight into your actions, and the wider evidence from your colleagues, family and friends demonstrating your regret about the consequences of your actions on others. It concluded while your actions are yet to be remediated as you are serving the suspended sentence, they were unlikely to be repeated. The Tribunal has also noted that you admitted responsibility at the first opportunity at the Magistrates Court hearing. 18. The Tribunal took all of the above factors into account when deciding whether your conviction was serious misconduct. It considered your actions brought the medical profession into disrepute, and would be regarded as deplorable by your fellow medical practitioners. 19. It then went on to consider if your fitness to practice is impaired due to your serious misconduct. The Tribunal took into account the case of CHRE v NMC and Grant [2011] EWHC 927 (Admin), and gave 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 of which you were convicted, and while you have the majority of your sentence to serve. 20. The Tribunal has therefore found that your fitness to practice is currently impaired by reason of your Conviction. Determination on Sanction - 10/11/2017 Dr MacKenzie: 21. Having determined that your fitness to practice is impaired by reason of your conviction, the Tribunal has now considered what action, if any, it should take with regard to your registration. 22. In so doing, the Tribunal has given careful consideration to all the evidence adduced together with the submissions made on your behalf by Ms O Rourke, submissions by Ms Gilsenan on behalf of the GMC, and the oral evidence. 6

Submissions GMC Submissions 23. On behalf of the GMC, Ms Gilsenan submitted that the only appropriate and proportionate sanction regarding your registration was a period of suspension, although it was up to the Tribunal to consider the length of time to impose. Ms Gilsenan referred the tribunal to paragraph 14 of the Sanctions Guidance (the SG ), emphasising the protection of the public. Ms Gilsenan submitted that the Tribunal should balance your interests with the need to uphold public confidence in the medical profession and its system of regulation. 24. Ms Gilsenan submitted that you have only served 4 months of your suspended sentence, and that it is possible that a custodial sentence could be imposed within the remaining time, albeit this is an unlikely possibility. Ms Gilsenan submitted further that you did not admit guilt in your police interview, and only entered a guilty plea at the Magistrates Court. Ms Gilsenan submitted that, given the Tribunal s previous findings, it would be difficult to envisage conditions that would be workable. Ms Gilsenan reminded the Tribunal that your driving was so dangerous that it resulted in injury to four people. She submitted that conditions would not meet the public interest and would not send a message to the profession that the behaviour behind your conviction was inappropriate. Ms Gilsenan submitted that the sentence imposed by the criminal court crossed the custodial threshold, which showed that your conviction is serious and unbefitting of a registered doctor. Doctor Submissions 25. Ms O Rourke submitted that, as expressed by Ms Gilsenan on behalf of the GMC, that there were no health or public safety concerns, but rather, this was a case of needing to uphold public confidence in the profession. Ms O Rourke submitted that there was a distinction between your actions and that, for example, of someone who had driven a car having consumed alcohol, as your action was a one off mistake, and a lapse of judgement, with no evidence that your driving was reckless beforehand. 26. Ms O Rourke submitted that a reasonable member of the public would have regard to the context in which your serious misconduct took place. Ms O Rourke submitted that you have received no complaints from any patient at NHS Borders since your sentence has been imposed, despite local press coverage, and that you had been paying the community back by working longer hours, training two GP s in your specialism, and carrying out your community service, which has in turn given you further insight into your conviction. Ms O Rourke submitted that whereas the public would have concern regarding a doctor s practice whereby the doctor is, for example, on the sex offenders register, or convicted for dishonesty, your conviction is one that has already received a punishment by way of a lengthy suspended 7

sentence, amongst other things. She also referred to your insight, clear remorse and willingness to make up for the costs the NHS emergency services suffered by working the majority of the shifts available in your department. 27. Ms O Rourke submitted that the specialism of dermatology is a department that is under significant strain in NHS Borders, and that the public in that area would be put at significant risk should a period of suspension be put in place. Ms O Rourke submitted that waiting lists for dermatology would be seriously affected in NHS Borders as it would be very unlikely that cover could be found for a period in which you could no longer work. Ms O Rourke submitted it would pose significant risk to the public in that area and cases of cancer could be missed, and ongoing care for those with more critical conditions would be disrupted if you were suspended. Ms O Rourke further submitted that, due to the rural location, patients would have to travel excessive distances to find dermatological care. She highlighted the unusual circumstances in which NHS Borders found itself in relation to dermatology. 28. Ms O Rourke submitted that it was proportionate for the Tribunal to take no action on your registration as you had already been served a punitive sentence by the Crown Court. Ms O Rourke submitted that the sanction of impairment found by the Tribunal already sent a message to you and the medical profession that the actions behind your conviction was unbefitting of a doctor. She submitted that the finding of impairment alone would serve as a punitive effect, as this will be on your record when applying for roles in future. Suspension in her view would risk patient safety. The Tribunal s Approach 29. The decision as to the appropriate sanction to impose, if any, is a matter for this Tribunal exercising its own judgment. 30. In reaching its decision, the Tribunal has taken account of the Sanctions Guidance ( the SG ). It has borne in mind that the purpose of sanctions is not to be punitive (although they may have a punitive effect), but to protect the public. This encompasses the three limbs of the over-arching objective. 31. Throughout its deliberations, the Tribunal has applied the principle of proportionality, balancing your interests with the public interest. 32. The Tribunal has already set out its decisions on the facts and impairment and it took those determinations into account during its deliberations on sanction. It then considered the submissions of the GMC and the oral and written evidence and submissions put forward by Ms O Rourke on your behalf. The Tribunal considered the aggravating and mitigating factors in this case and then moved on to consider each sanction in ascending order of severity, starting with the least restrictive. 8

The Tribunal s Decision Aggravating and Mitigating Factors 33. The Tribunal considered aggravating factors. It noted that the collision caused two members of the public to be seriously injured. The Tribunal concluded no other aggravating factors surrounded the incident behind your conviction. There was no reckless driving prior to the dangerous overtaking manoeuvre, according to the evidence at your trial. 34. In relation to mitigating factors, the Tribunal have found that you have shown considerable insight into your actions, and took account of the remorse expressed in your oral and written evidence. The Tribunal noted the genuine empathy you expressed towards all the victims who suffered injury, and the impact it has had on their lives. The Tribunal also noted the regret you expressed at having caused a financial impact to public services, for example the NHS emergency services, due to the collision. 35. The Tribunal considered all evidence put before it, and concluded that the incident behind your conviction was caused by a momentary lapse in judgement that resulted in dangerous driving with dire consequences that affected two other people seriously, and injured two others as well as yourself. It took into account witness evidence from the trial which confirmed that there had been no indication of reckless driving, such as speeding prior to your lapse in judgement when you pulled out to overtake the heavy goods vehicles. The Tribunal noted you admitted responsibility at the first opportunity at the Magistrates Court hearing. The Tribunal also considered, amongst other things, the written testimonials that describe your attitude towards public service, and your clear vocational commitment towards your profession, as shown in your oral evidence. The Tribunal s deliberations 36. In coming to its decision as to the appropriate sanction, if any, to impose, the tribunal first considered whether to conclude your case by taking no action. The Tribunal had regard to the SG and in particular the matters set out in paragraphs 70 and 119 which are particularly relevant to your case. 37. Paragraph 70 of the SG provides: 70 Exceptional circumstances are unusual, special or uncommon, so such cases are likely to be very rare. The tribunal s determination must fully and clearly explain: a what the exceptional circumstances are b why the circumstances are exceptional 9

c how the exceptional circumstances justify taking no further action. 38. The Tribunal took into account the oral and documentary evidence from your various colleagues at NHS Borders and yourself, including the evidence from Dr C and Dr D. It noted the fact that dermatology is a specialty that is under strain, and which is already significantly short-staffed as regards consultant dermatologists, both nationally and in Scotland. The Tribunal accepted that there was little real possibility of finding a suitable replacement to cover your role, given the inability to do so while you were on long-term XXX leave recovering from your injuries and the consequent impact on waiting lists. The Tribunal noted that the circumstances surrounding Dermatology in NHS Borders is exceptional. It has borne in mind that, should a period of suspension be imposed, patients from the Borders area, would have to travel significant distances in order to receive dermatological care. The Tribunal has heard evidence that no care would be assured at another hospital, should you no longer work at NHS Borders, which could pose potential risk to the public. Indeed, the nearest hospital with a dermatological speciality has said that it cannot assist according to your oral evidence. 39. The Tribunal also noted the fact that some of your patients with severe conditions require continuity of care which, should this be disrupted by a period of suspension, would have a detrimental impact to their health. The Tribunal also noted the significant rise in waiting lists for Dermatology at NHS Borders during your time off, which would worsen should another period of leave be imposed. The Tribunal also considered the risk to patient safety, for example, the risk of cancer being missed, should a period of suspension be put in place on your registration. Your evidence about anonymous patients who require your care was persuasive and demonstrated the risk to patient safety, particularly in cases of skin cancer where no medical photography is available. Dr C raised the same concerns in her oral evidence. 40. The Tribunal considered the impact your actions have had on the wellbeing of others, namely the four people who were injured in the collision. It took into account paragraph 10 (d) from GMP, and was of the view that your actions were unbefitting of a doctor. The Tribunal considered the Crown Court sentence in which you were sentenced to, amongst other things, 20 months imprisonment suspended for 24 months, and 200 hours unpaid work. The Tribunal considered your criminal conviction to be proportionate in serving a punitive effect, and noted it was not its role to punish you, but to protect patients and the public. 41. The Tribunal went on to consider the overarching objective, notably protecting the public. In its deliberations, the Tribunal concluded that appropriate sentences have been imposed via the Crown Court, and the Tribunal s previous Determination citing your impairment is a message that confirms to the medical profession that your actions behind your conviction are unbefitting for a doctor. 10

42. The Tribunal concluded that a period of conditional registration would not adequately address the nature of your conviction. It therefore concluded that the imposition of conditions would be neither workable nor appropriate in your case. It also concluded that ordinary, honest and reasonable people, informed of the context and circumstances of this case, would regard the imposition of a suspension, even for a short period of time, as disproportionate. In these circumstances, an order of erasure would be wholly disproportionate in this case. In all the circumstances, and taking into account the exceptional factors in your case, the Tribunal has determined that it is not necessary to take action on your registration and that this is the appropriate and proportionate response. In the judgment of the Tribunal, you are a good doctor who poses no risk to patients; preventing you from practising medicine in the unusual circumstances of this case would risk patient safety, and not protect the public. 43. In making this determination, the Tribunal emphasises that the exceptional course adopted in your case in no way qualifies or reduces the very serious view it holds of your misconduct, as reflected in its determination on impairment. The determination that your fitness to practice is impaired is in itself significant and sends a message to the profession, to the public and to any future employer of the gravity with which your misconduct is viewed. It will be declared by you throughout your career. However, the Tribunal has concluded that its finding of impairment alone is sufficient to meet the statutory overarching objective and protect the public. 44. That concludes your case. Confirmed Date 10 November 2017 Mrs Claire Sharp, Chair 11