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

Transcription

1 PUBLIC RECORD Dates 21 January January 2015 Name of Medical Practitioner Dr James Dillwyn Douglas ALLAN Primary medical qualification MB BS 1988 University of London GMC reference number Type of case Outcome on impairment New - Conviction / Caution Impaired Summary of outcome Suspension, 3 months. Immediate order imposed Panel Medical Panellist (Chair) Lay Panellist Lay Panellist Legal Assessor Secretary to the Panel Attendance and Representation Medical Practitioner Medical Practitioner s Representative GMC Representative Dr Patrick Walker Mrs Sheila Hollingworth Mr Mick Turner Mr Iain Harris Ms Dawn Magill Present and represented Mr Jeremy Lindsay, Counsel, instructed by Ingrams Solicitors Mr Paul Wakerley, Counsel Allegation and Findings of Fact That being registered under the Medical Act 1983 (as amended): 1. On 9 September 2013 at the Norfolk Magistrates Court you were convicted of driving a motor vehicle after consuming so much alcohol that the proportion of it in your breath, namely 58 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit, contrary to section 5(1)(a)of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act Admitted and found proved 2. On 9 September 2013 you were sentenced to: a. A fine of 1,450; Admitted and found proved b. A disqualification from holding or obtaining a driving licence for 38 months. Admitted and found proved 1

2 3. In addition, you were ordered to pay: a. A victim surcharge of 120; Admitted and found proved b. Prosecution costs of 85. Admitted and found proved And that by reason of the matters set out above your Fitness to Practise is impaired because of your conviction. Found proved Attendance of Press / Public The Panel 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 preliminary procedural matters Mr Lindsay 1. At the outset, you made an application to make an application in private that the proceedings in their entirety be held in private. This was refused. 2. You then made, in public, the application for the entire proceedings to be held in private and for any decisions made by this panel not to be made publicly available. 3. In relation to the hearing being held in private you referred the panel to Rule 41(2) of the General Medical Council (Fitness to Practise) Rules 2014, which states that the panel may exclude the public from part or the whole of proceedings where they consider that the particular circumstances of the case outweigh the public interest in holding the hearing in public. 4. In relation to the publication of the decisions of this panel, you referred the panel to a MPTS Information Sheet (September 2013) which addresses the issue of the publication of decisions. 5. You argued that the areas of concern are twofold. First, as to the adverse publicity that would be attracted the Trust, the hospital and the Department of Urology. Second, as to the adverse publicity that would centre on Dr Allan. 6. You argued that the public interest does not extend to informing the public about a disciplinary matter that has no effect upon the clinical ability of a wellrespected, highly capable practitioner. Furthermore, there is more than a marginal danger that publicity of any kind could cause irreparable damage to the reputation of the Trust, hospital and Dr Allan. You submitted that the public do not have an unfettered right to know of state secrets or the workings of much of the Family 2

3 Court or the Court of Protection. You asked the rhetorical question Why must the public know of this matter? You submitted that when balancing all the factors, the hearing should be held in private and the decisions of the panel not published or if they were to be made public matters should be redacted specifically the doctor s name and the Trust, hospital and department in which he works. Furthermore and in any event any XXX matters relating to Dr Allan or others should also be redacted. 7. Mr Wakerley, on behalf of the GMC, submitted that the regulation of doctors has at the heart of it openness, transparency and accountability. He stated that the Rules make it clear that hearings before the panel shall be held in public, subject to certain provisions for example in relation to a doctor s XXX or that there is a vulnerable witness. He told the panel that the hearing before the Magistrates Court was in public and the conviction and sentencing was also in public. There was no prohibition on reporting before the Magistrates Court. Furthermore, that the details of the conviction have already been published on the MPTS website. In relation to the publication of decisions of the panel, Mr Wakerley referred the panel to the relevant parts of the Rules and the Medical Act 1983, as amended. 8. The panel has carefully considered the submissions made. It took account of the advice of the Legal Assessor who referred specifically to 35B(4)(a) of the Medical Act 1983, as amended and as set out in paragraph 10 below. It has determined that this hearing will be held in public. Dr Allen s conviction is already in the public domain and the facts are not in dispute. 9. The panel has a duty to act in the public interest which includes the protection of patients, the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour. Further, at the heart of medical regulation is openness, transparency and accountability. There is no allegation of XXX in this case and the panel did not consider that there are any other exceptional circumstances which outweigh the public interest in holding the hearing in public. 10. In relation to the publication of decisions of this panel, Section 35B(4)(a) of the Medical Act 1983, as amended states: (4) Subject to subsection (5), the General Council shall publish in such manner as they see fit (a) decisions of a Fitness to Practise Panel that relate to a finding that a person s fitness to practise is impaired (including decisions in respect of a direction relating to such a finding that follow a review of an earlier direction relating to such a finding); 11. Having considered the provisions within the Medical Act 1983, as amended, the panel has determined that it does not have discretion to determine what should be published and this includes not having the discretion to determine what is 3

4 redacted from public documents. However, confidential matters, for example, issues relating to the XXX of a person will be withheld in accordance with Section 35B(5) of the Medical Act 1983, as amended. DETERMINATION: Paragraph 24 of the determination on impairment Mr Lindsay 1. You raised a concern with regard to the accuracy of paragraph 24 of the panel s determination on impairment. The panel put in hand steps to obtain a transcript of the relevant evidence. 2. Following further discussions between yourself, your instructing solicitor and Dr Allan you then addressed the panel in relation to paragraph 24 stating that you would leave matters as they stand. Upon the Legal Assessor seeking further clarification you agreed that paragraph 24 was correct as it stands. 3. In the circumstances the panel then cancelled the steps it had put in place to obtain the transcript. In the light of agreement from both parties the panel decided to proceed to the next stage and invite any evidence and submissions in relation to sanction. Determination on Facts and Impairment Dr Allan 1. You have admitted and the panel has found proved the following: 2. On 9 September 2013 at the Norfolk Magistrates Court you were convicted of driving a motor vehicle after consuming so much alcohol that the proportion of it in your breath, namely 58 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit, contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act On 9 September 2013 you were sentenced to a fine of 1450 and a disqualification from holding or obtaining a driving licence for 38 months. 4. You were ordered to pay a victim surcharge of 120 and prosecution costs of At the West Suffolk Magistrates Court on 20 October 2009, you were convicted of failing to provide a specimen for analysis (driving or attempting to drive) on 10 October In an to the GMC dated 29 March 2010, you stated that you were prepared to accept a warning and that you did not wish to exercise your right to a public hearing before the Investigation Committee. A formal warning was issued to you on 31 March 2010 to expire on 30 March That 4

5 warning drew your attention to paragraph 57 of Good Medical Practice, namely, you must make sure that your conduct at all times justifies your patients trust in you and the public s trust in the profession. 6. The panel has considered, on the basis of the facts found proved, whether your fitness to practise is impaired by reason of your conviction in September In doing so, it has taken account of all the evidence adduced and the submissions made by Mr Wakerley, on behalf of the General Medical Council (GMC) and those made by Mr Lindsay on your behalf. 7. Mr Wakerley submitted that you have appeared before this panel through your own fault. He stated that you knew you had an active warning in place when you chose to drive after consuming alcohol. He submitted that your conviction brings yourself and the profession into disrepute. 8. Mr Wakerley further submitted that fitness to practise is not judged on clinical work alone but also applies to non-clinical matters. He invited the panel to consider the wider public interest which includes upholding proper standards of conduct and behaviour and maintaining confidence in the profession. 9. Mr Wakerley submitted that there is some evidence of insight and that you have made efforts to remediate through self-referral to XXX and that you have strongly expressed a commitment not to repeat the behaviour. Furthermore, the stressors which led you to committing the offence have since changed. However, Mr Wakerley submitted that this should be viewed in the context that you were convicted when already subject to a warning in relation to a similar offence. 10. He further submitted that there is no allegation of deficient professional performance or XXX. The evidence is that you are held in high regard by colleagues and patients. However, he submitted that your professional skills and the regard in which you are held by patients and colleagues do not provide you with a cloak of invincibility. 11. Mr Wakerley submitted that your conviction for drink driving represents disgraceful conduct. Furthermore, it is aggravated by the fact that it is a second offence of that type within four years and that you have an active warning in place. He submitted that it is by reason of your conviction alone that your fitness to practise is impaired because you have brought the profession into disrepute. 12. Mr Lindsay invited the panel to consider whether right thinking members of the public, considering all the circumstances of the case not just the mere fact of the conviction, would consider that you have brought the profession into disrepute. Mr Lindsay reminded the panel of the circumstances which led to your conviction as set out in paragraph 16 below. Mr Lindsay invited the panel to take these into account when considering whether you have brought the profession into disrepute. 5

6 13. Mr Lindsay invited the panel to consider whether your fitness to practise is impaired as of the date of this hearing. He submitted that even if there has been an act that leads the panel to determine that you have brought the profession into disrepute that does not automatically lead to a finding that your fitness to practise is impaired. He invited the panel to consider whether the conduct that led to your conviction is remediable and reminded the panel of the assurances you gave regarding drinking alcohol if having to drive. He submitted that this conduct is capable of being remedied. Furthermore, that it has been remedied by the steps you have taken to prevent a recurrence. 14. Mr Lindsay further submitted that you are disgusted with yourself and distraught that you are before a fitness to practise panel. Furthermore, that you have taken professional advice and have shown the panel that you are doing all you can to demonstrate that it is highly unlikely that the offence will be repeated. 15. Whilst the panel has borne in mind the submissions made, the matter of impairment is one for it to determine exercising its own judgement. 16. The panel has taken account of the circumstances which led to your conviction. It notes that you attended a cricket club lunch and consumed alcohol. In your statement you said that you did not know the strength of the alcohol but that it was not your intention to drive until later in the evening. You said that you had been expecting to have some food and believed that you would have been well below the drink drive limit when you set off for home. You stated that whilst at the club you received a message from your partner concerning an emergency at home involving one of your children. At that point you took the decision to drive home. While en route you were stopped by the police following a report from a member of the public and you provided a positive breath test. 17. You told the panel that since your driving ban you have fulfilled your clinical commitments; cycling 100 to 150 miles per week to attend your patients. You said that you realise that you are responsible for your actions and that you are attempting to ensure that these do not impact on your patients. You told the panel that you have since undergone XXX and that these have shown that there are no concerns as to your XXX. 18. The panel notes that this is the second occasion upon which you have been convicted for an offence relating to drinking and driving. You told the panel that things are now different and said that you will not, at any time, get behind the wheel of a car when you have had a drop of alcohol. 19. It is clear that you have taken some positive steps to address the matters which led to your conviction. You informed your Medical Director and the GMC without delay and subsequently referred yourself to the XXX in order to seek professional advice. 6

7 20. However, despite the positive steps you have taken the panel has carefully considered its duty to protect the public interest. This includes the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour. 21. The panel is concerned about the extent of your insight. The panel considers that if you had complete insight, you would not have placed yourself in the situation in which you did. It was your intention to drink alcohol at the event to which you chose to drive. You told the panel that it was your intention to have an approximately four hour interval before getting back into your car to drive home. However, because of the circumstances you made the decision to drive home before the four hour period had elapsed. 22. The panel considers that there are inconsistencies in your evidence concerning your approach to consuming alcohol. In a report of 29 September 2013, it is stated that you were considering whether abstinence would be the best plan. In a further report of 20 October 2013 the author writes that you told him you decided to be tee-total because you had made a grave error of judgement which threatened your career and family. 23. In your oral evidence you explained that you continue to drink alcohol from time to time but that you have developed strategies that you will employ when you are able to drive after the expiration of your disqualification. These included management of the situation and making alternative arrangements concerning transportation. 24. The panel is concerned that, in answer to a question from it regarding attending a medical emergency after having consumed alcohol, you initially stated that you would arrange for someone to take you to attend to that emergency instead of immediately recognising that you should not attend a medical emergency whilst under the influence of alcohol. 25. The panel further is concerned that your decision making remains flawed. You have not had an opportunity, because you are presently banned from driving, to put into effect your coping strategy. The panel is concerned that there is a risk that you may, when your period of disqualification has ended, again drive after consuming alcohol. 26. Your conviction is serious and is aggravated by the fact that you had recently had a previous conviction for which there was still an active warning in place. Taking these matters into account together with the concerns it has with regard to your limited insight, the panel has concluded that your conviction for drink driving has brought the profession into disrepute and that you are, in future, liable to bring it into disrepute. Your conviction has breached one of the fundamental tenets of the medical profession. Furthermore, the offence for which you were convicted 7

8 adversely affects public confidence in the profession and falls below the standards expected of a registered medical practitioner. 27. Having considered all the evidence before it the panel has determined that your fitness to practise is impaired by reason of your conviction. Determination on Sanction Dr Allan 1. The panel has determined that your fitness to practise is impaired by reason of your conviction. It has now considered what sanction, if any, should be imposed on your registration. In doing so it has considered the oral and documentary evidence together with the submissions made by Mr Wakerley on behalf of the General Medical Council (GMC) and those made by Mr Lindsay on your behalf. 2. The panel has taken account of all the evidence placed before it. You have given evidence to the panel and it has also heard from four witnesses who attended the hearing to speak about your work as a clinician. The panel has also read and carefully considered the testimonials which have been submitted. 3. Mr Wakerley, in making his submissions referred the panel to the relevant parts of the Indicative Sanctions Guidance. He submitted that the appropriate sanction in this case is one of suspension and that the length of that suspension is a matter for the panel. 4. Mr Wakerley stated that a review may not be appropriate in this case but that this was a matter for the panel. 5. Mr Lindsay did not disagree with the submissions of the GMC but invited the panel to consider the length of any suspension. He also referred the panel to the relevant parts of the Indicative Sanctions Guidance. He reminded the panel that 18 months have elapsed since your conviction. In the intervening period you have stood down from various roles out of a sense that you were no longer entitled to hold those roles. 6. Mr Lindsay submitted that it has been an awful and remarkably bad experience for you to find yourself before this panel. He commended to the panel the testimonial evidence in relation to your unique set of professional skills and the significant contribution you make to the Trust in which you work and the care you provide to your patients. 7. Mr Lindsay submitted that it is in the public interest to ensure that any length of suspension should be in terms of weeks, not months. The longer you remain suspended, the more impact it will have on service provision within your employing 8

9 Trust. He reminded the panel of the adverse impact on patients having to travel considerable distances in order to receive care. 8. Whilst the panel has taken account of the submissions made, the matter of sanction is one for it to determine exercising its own judgement. 9. In considering the matter of sanction, the panel has taken account of the Indicative Sanctions Guidance. The panel has also borne in mind the principle of proportionality, weighing the interests of the public with your own interests. The purpose of sanctions is not to be punitive but to protect patients and the public interest. The public interest includes the protection of patients, the maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour. 10. It is clear that you are held in the highest regard by both your colleagues and patients. Those who attended the hearing spoke highly of the services that you provide and of your unique skill set. They also spoke of the loss to the profession if you were suspended or indeed if you were not permitted to practise again. 11. The panel first considered whether to conclude your case by taking no further action. It has determined that your conviction is serious and therefore to take no action would not be in the public interest. 12. The panel next considered whether it would be sufficient to impose conditions on your registration. It has borne in mind that any conditions must be appropriate, proportionate, workable and measurable. However, the panel has determined that it would not be possible to devise workable and appropriate conditions but, in any event, conditions would not be sufficient to send a message to you and the profession as to what this panel regards behaviour unbefitting a registered medical practitioner. 13. The panel then went on to consider whether suspending your registration would be the appropriate and proportionate sanction. It has considered the aggravating features of this case. You now have two convictions for drink driving related offences. Your latest conviction was whilst you had an active warning imposed by the GMC. 14. The panel has weighed those aggravating factors with the mitigation present in this case. Since your conviction you have maintained your clinical practice and it is clear that you are a valuable asset to your Trust. The panel accepts that you have a unique set of skills and patients benefit from the care that you provide. 15. Additionally, you have some understanding of your problems and have taken positive steps to address them. You informed your Medical Director and the GMC of your offence without delay and subsequently referred yourself to the XXX in order to seek professional advice. There is no doubt that these proceedings have had a 9

10 salutary effect upon you. There is no evidence of a harmful, deep-seated personality or attitudinal problem and you have the potential further to develop your insight. 16. The panel has considered the mitigation and balanced this with the central aim of sanctions to protect the public interest. Having considered all the factors, the panel has determined that suspension is the appropriate and proportionate sanction in this case. Suspension from the Medical Register sends a message to you, the profession and the public about what is regarded as behaviour unbefitting a registered medical practitioner. 17. It has determined that a three month period of suspension from the Medical Register is appropriate. Whilst the panel has taken account of the valuable service you provide to your patients and within your Trust, it has balanced this against the need to maintain public confidence in the profession and declare and uphold proper standards of conduct and behaviour. It is satisfied that a period of three months is necessary and proportionate given the seriousness of your conviction and will not permanently deprive patients and the Trust of your services in the future. 18. The panel then considered whether to order a review hearing before the end of the period of suspension. Given that there are no risks to patients and that you are clearly a skilled clinician a review is not necessary. The panel is satisfied that during the period of your suspension you will not become deskilled to the extent whereby this panel would have patient safety concerns. 19. After the panel had reached its decision but before it had been communicated to the parties, Mr Lindsay indicated that he wished to present a further testimonial to it. In the absence of any objection to this from Mr Wakerley, the panel received and read the testimonial of Mr A. After careful consideration the panel saw no reason to alter its decision. Determination on Immediate Order Dr Allan 1. Having determined that your name be suspended from the Medical Register, the Panel has considered in accordance with Section 38(1), of the Medical Act 1983 as amended, whether your registration should be suspended with immediate effect. 2. Mr Wakerley, on behalf of the GMC submitted that in the light of genuine remorse, steps you have taken including self-referral, and that there is no risk to patient safety and also that you are currently disqualified from driving, an immediate suspension is not necessary. 3. Mr Lindsay, on your behalf submitted that you wish for the matter to be dealt with as quickly as possible so that you can return to work as soon as possible. He 10

11 further told the panel that you, in anticipation of the decision of this panel, are not expected to attend work from Monday. 4. The panel has determined that there are no patient safety issues and therefore an immediate order is not necessary for the protection of members of the public. The panel then considered whether an immediate order is otherwise in the public interest. It determined that the public interest has been met by the substantive order of suspension. 5. The panel considered whether it should make an immediate order in your own best interests. It notes that you wish for the suspension to start as soon as possible. The panel is persuaded by Mr Lindsay s submissions that you are not expected at work and arrangements have been made to cover your work. Therefore the panel considers that it is in your best interests for an immediate order to be imposed, so that you do not face undue pressure. 6. This means that your registration will be suspended with effect from today. The substantive direction of suspension, as already announced, will take effect 28 days from today, unless you lodge an appeal in the interim. If you do lodge an appeal, the immediate order of suspension will remain in force until the appeal is decided. Confirmed Date 23 January 2015 Dr Patrick Walker, Chair 11