PUBLIC RECORD. Record of Determinations Medical Practitioners Tribunal. Dates: 16 to 20 October February to 2 March 2018

Transcription

1 PUBLIC RECORD Dates: 16 to 20 October February to 2 March 2018 Medical Practitioner s name: Dr Milind MEHTA GMC reference number: Primary medical qualification: Type of case: New - Misconduct MB BS 1995 Saurashtra University Outcome on impairment Impaired Summary of outcome No action Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Mr Stuart McLeese Mr John Crawley Dr David Wrigley Tribunal Clerk: Ms Rachel Barrett/Mr Sewa Singh (2017) Ms Dee Montgomery, Mr David Salad (2018) Attendance and Representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Present and represented Mr George Hugh-Jones QC, instructed by BTO Solicitors (2017) Mr Alan Jenkins, Counsel (2018) Ms Chloe Binding, Counsel 1

2 Allegation and Findings of Fact 1. Between 26 April 2012 and 2 May 2012 you attended a meeting with Ms A, a colleague, and at the end of the meeting you kissed Ms A on or near her mouth. Admitted and found proved in relation to near her mouth Found not proved in relation to on her mouth 2. On 6 August 2013 you met Ms B when she attended a clinic appointment with her son ( the appointment ). Admitted and found proved 3. Following the appointment, on 6 August 2013, you used Ms B s personal contact details, obtained from her son s medical record to telephone her. Admitted and found proved 4. There was no clinical reason for you to telephone Ms B following the appointment. Found not proved 5. During the telephone call referred at paragraph 3 above you asked Ms B: a. where she lived, asking for specific detail as to her location, or words to that effect; b. how her trip home from your surgery was, or words to that effect; c. whether she was married, or words to that effect. Admitted and found proved in its entirety 6. On 27 January 2014 you treated Ms C with whom you had a close personal relationship, in that you: a. carried out an examination; b. referred her for an X-ray; c. administered a cortisone injection. Admitted and found proved in its entirety 7. On 26 February 2015 you invited Dr D to attend your office to view teaching presentations and you: a. told Dr D that: i. if she found someone to confide in, who was not her boyfriend, this would not be cheating or words to that effect; Admitted and found proved 2

3 ii. things would be awful when she got to Glasgow, and she had to look after her boyfriend, so she needed to have fun whilst she was in Elgin or words to that effect; Admitted and found proved with the exception of the words things would be awful Found not proved in relation to the words things would be awful b. moved your chair so that you were closer to Dr D so that your knees were touching; Admitted and found proved c. made prolonged eye-contact; Admitted and found proved d. hugged Dr D on one or more occasion; Admitted and found proved e. hugged Dr D pressing your chests together; Admitted and found proved f. kissed Dr D s shoulder on one or more occasion; Admitted and found proved on the basis of one occasion Found proved on the basis of more than one occasion g. failed to show any presentation slides to Dr D; Admitted and found proved h. when asked by Dr D if you tricked her into coming into your office you laughed and replied I hope you did not got the wrong idea or words to that effect. Admitted and found proved only in relation to the words I hope you did not got [sic] the wrong idea Found proved as alleged 8. Your conduct as described at paragraphs 1, 3, 5 and 7 was: a. inappropriate; Admitted and found proved b. sexually motivated. Found proved in relation to paragraph 7 Found not proved in relation to paragraphs 1, 3 and 5 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. 3

4 Determination on Facts - 20/10/2017 Dr Mehta: Admissions 1. At the outset of the hearing you made the following admissions: Paragraph 1: admitted only in relation to 'near her mouth' Paragraph 2: in its entirety Paragraph 3: in its entirety Paragraph 5: in its entirety Paragraph 6: in its entirety Paragraph 7(a)(i) Paragraph 7(a)(ii): with the exception of the words 'things would be awful' Paragraph 7(b): in its entirety Paragraph 7(c): in its entirety Paragraph 7(d): in its entirety Paragraph 7(e): in its entirety Paragraph 7(f): admitted only on the basis that you kissed Dr D's shoulder only once Paragraph 7(g): in its entirety Paragraph 7(h): only in relation to the words 'I hope you did not got the wrong idea' Application to hear evidence of Ms B via video link 2. On 16 October 2017, Ms Binding referred the tribunal to Rule 16(7) of the General Medical Council (Fitness to Practise) Rules 2004 ( the Rules ) and to the Case Manager directions, to allow the evidence of Ms B to be provided to the tribunal via video link. She submitted that both parties had already agreed to this. Mr Hugh-Jones QC confirmed this to be the case. 3. Ms Binding submitted that the reliability of Ms B s evidence would in no way be undermined if received via videolink. 4. The tribunal considered Rule 16(7) which states: 16 (7) Within the period of 7 days beginning with the date of a case review, the Case Manager shall serve on the parties a record of the directions issued by him. 5. The tribunal also had regard to Rule 34(14)(b) which states: (14) When considering. the Committee or Tribunal must- 4

5 (a) ; (b) have regard to- (i) any agreement between the parties, or (ii) in the case of a Tribunal hearing, any relevant direction given by a Case Manager; and (c).. 6. Having considered all the circumstances, the tribunal concluded the evidence of Ms B should be admitted given by videolink and that it would not cause any injustice to you. Application to accept your oral evidence as evidence in chief under Rule 34(1) and (11) 7. On 17 October 2017, Mr George Hugh-Jones QC, on your behalf, made an application to the tribunal that your oral evidence be accepted as evidence in chief. Mr Hugh-Jones submitted that as the only person defending the allegation, it was important that you were afforded the opportunity to settle in to your evidence. He submitted that this would be beneficial to the tribunal and would assist the GMC in its cross examination of your evidence. 8. Ms Chloe Binding, Counsel on behalf of the GMC, opposed the application. She submitted that to ensure there was parity between the GMC witnesses evidence, your evidence should also be cross examined in the same way, i.e. based on the written statement. 9. The tribunal considered Rule 34(1) and (11) of the Rules which state: 34. (1) The Committee or a Tribunal may admit any evidence they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a court of law. (11) A Committee or Tribunal must receive into evidence a signed witness statement containing a statement of truth as the evidence-in-chief of the witness concerned, unless (a) the parties have agreed; (b) a Case Manager has directed; or (c) the Committee or Tribunal decides, upon the application of a party or of its own motion, that the witness concerned, including the practitioner, is to give evidence-in-chief by way of oral evidence; 5

6 10. In reaching its decision, the tribunal considered all the circumstances, including the submissions made by Mr Hugh-Jones QC and Ms Binding and the fact that Ms Binding had been permitted to ask various supplementary questions of the GMC witnesses. The tribunal accepted Mr Hugh-Jones QC's submissions and accordingly, decided to grant the application. Background 11. On 25 November 2014, a complaint was received by NHS Grampian Trust (the Trust) from 'Ms B', who was the mother of one of your patients, in relation to inappropriate contact from you in August In the course of an investigation into this complaint by the Trust, which began in February 2015, two other allegations of inappropriate conduct, toward female colleagues in the workplace, came to light. These were in relation to an incident reported by 'Ms A', a senior manager at the Trust, alleged to have occurred in 2012, and a new allegation made by 'Dr D', a female FY1 doctor, alleged to have occurred in February An additional concern also arose that you had provided medical treatment to 'Ms C' in January 2014, with whom you had a close personal relationship. 12. Ms B reported that after she had accompanied her son to a medical appointment with you, you accessed her son's medical records in order to obtain her telephone number and used this to call her at her home. Ms B stated that during this phone call, you asked personal questions, including where she lived, whether she was married, and whether she lived alone. 13. It was alleged that at the end of a meeting in April or May 2012 in Ms A's office, you shook hands with Ms A before leaning forward to kiss her, which she said left her feeling 'upset and extremely embarrassed.' It is further alleged that, on 26 February 2015, you hugged and kissed Dr D repeatedly on her shoulder while she was alone with you in your office. Evidence 14. The tribunal gave careful consideration to all the documentary evidence adduced in this case. It has taken account of the submissions made by Ms Binding and those by Mr Hugh-Jones QC. 15. The tribunal received oral evidence from Ms A and Dr D and evidence via videolink from Ms B. It also received oral evidence from you. 16. The tribunal considered the evidence provided and found all of the GMC witnesses to be broadly credible and reliable. Their evidence was fair and measured and they did their best to assist the tribunal in recollecting the events, which took place some time ago. 6

7 17. The tribunal found you to be an anxious witness and that you were uncomfortable dealing with a lot of the questions asked, although the tribunal has concluded that this was not always borne out of a wish to be evasive. In answer to some questions you failed to focus on the question asked. In relation to Dr D the tribunal found you to be unwilling to directly address some of the key questions asked and that, as set out later, you gave some implausible evidence. 18. The tribunal received documentary evidence from the GMC including: Witness statement of Dr E dated 26 June 2017 Witness statements from Ms A, dated 31 January 2017; Ms B dated 30 July 2016; Ms C dated 30 July 2016 and Dr D dated 31 October 2016 Minutes of NHS Grampian Performance Reference Group meeting Minutes of meeting with GMC ELA NHS Grampian Performance Advisory Group update on cases Trust investigation report dated 25 June 2015 Annex C investigation hearing report dated 8 December 2015 Transcript of telephone call between Ms B and hospital dated 24 November 2014 Transcript of Ms B's interview to the Trust dated 3 May 2015 Ms A's statement to the Trust dated 26 April 2014 Screenshots of Ms A's outlook calendar from April 2012 Transcript of Ms C's statement to the Trust dated 4 June 2015 Dr D's statement of events dated 11 March 2015 Transcript of Dr D's interview to the Trust 24 April 2015 Photographs of your office Photograph of Dr D's clothing Screenshot of Facebook message sent by you to Dr D 19. The tribunal also received a defence bundle which included: Your Curriculum Vitae Your written statement dated 12 October 2017 Testimonials/references from your colleagues Slides from neck of femur presentation Dr Gray's Hospital rota for April 2012 The Tribunal s Approach 20. In reaching its decision the tribunal carefully considered all the evidence, as well as the submissions made by Ms Binding on behalf of the GMC, and by Mr Hugh- Jones QC, on your behalf. 21. The legally qualified chair reminded the tribunal that in these proceedings the burden of proof rests on the GMC and that it is for the GMC to prove the facts. You 7

8 do not have to prove anything. He also reminded the tribunal that the standard of proof is that applicable to civil proceedings, which is the balance of probabilities. 22. The legally qualified chair gave further legal directions on assessing witnesses' evidence, hearsay, character and the assessment of lies. 23. Both counsel were content and in agreement with the directions prior to the tribunal retiring. The Tribunal's Decision Paragraph 1 Between 26 April 2012 and 2 May 2012 you attended a meeting with Ms A, a colleague, and at the end of the meeting you kissed Ms A on or near her mouth. Admitted and found proved only in relation to 'near her mouth' Found not proved in relation to 'on her mouth' 24. The tribunal had regard to all of the evidence relating to this incident and in particular Ms A's description of the incident in paragraphs six and seven of her January 2017 witness statement 6. It was a perfectly amicable meeting and it lasted no longer than around minutes. During the meeting, Dr Mehta and I will have been around two and a half metres apart from each other. At the end of the meeting, we both stood up. I was about mid-way towards the door. I stepped forward and held out my right hand to Dr Mehta to shake his hand. Whilst we were shaking hands, Dr Mehta leaned forward and kissed me. In my initial account, I wrote that my memory was that it was fully on the lips but, on reflection, it could have been just to the side of the mouth. It definitely was not a kiss on my cheek like a double cheek air kiss (European kiss), his lips touched my flesh. It wasn t for very long, it was almost like a peck [ ] 7. [ ] I don t know if it was relief on his part that he thought the meeting had gone well, but it was so misplaced for the meeting we had just had and I was really surprised 25. In her evidence to the tribunal, Ms A confirmed that she could not be sure the kiss had been on her lips and that it could have been on the side of her mouth, and stated 'to be fair, it wasn't as though Dr Mehta was lingering. It was very quick.' 26. During your evidence to the tribunal, you explained that you were anxious about your position within the hospital at the time that this meeting took place, and 8

9 said that, although you could not remember the meeting in question, it is possible that you kissed Ms A on the cheek out of relief that the meeting had gone well. 27. The tribunal had regard to a letter dated 15 May 2012 to the HR Manager at the Trust, although the tribunal accepts the dating of that letter is most likely wrong, from Mr F, in which he stated 'at the point where one would normally say goodbye or possibly shake hands, Dr Mehta kissed [Ms A] on the cheek as one might do when meeting and greeting in a social situation.' Although the tribunal accepts Ms A's evidence that Mr F was not present during the incident, it nonetheless takes the view that, had Mr F been informed by Ms A when she spoke to him shortly after the incident that Dr Mehta had kissed her fully on the mouth, he would have been unlikely to describe the incident using these words. 28. The tribunal has concluded that, in view of the available evidence, it cannot be satisfied that you kissed Ms A on her mouth, in particular as from her evidence to the tribunal she herself could not be sure. The tribunal therefore found paragraph one not proved. Paragraph 2 Paragraph 3 Paragraph 4 On 6 August 2013 you met Ms B when she attended a clinic appointment with her son ( the appointment ). Admitted and found proved Following the appointment, on 6 August 2013, you used Ms B s personal contact details, obtained from her son s medical record to telephone her. Admitted and found proved There was no clinical reason for you to telephone Ms B following the appointment. Found not proved 29. In paragraph 10 of her witness statement dated 30 July 2016, Ms B stated 'As far as I was concerned, when the appointment ended there was no mention of any follow up treatment.' Ms B described how clearly she remembered being surprised that you had telephoned her only a few hours after the consultation. She said that during and following the telephone call, she felt unnerved and uncomfortable by the questions you asked her. She described the events of 6 August 2013 and stated that she was cooking at the time you telephoned her. 30. In your written statement dated 12 October 2017 you stated: 17. [ ] I remember that at lunch I dictated GP letters for the patients I had 9

10 seen that morning, including Ms B s son. I had Ms B s son s patient file in my office and I was dictating a letter to the GP when I wondered whether I had in fact advised the patient to refrain from doing contact sports as I was dictating. As a result I telephoned Ms B to impart this information [.] You went on to say: There was a clear clinical purpose in making this phone call. The purpose was to impart advice to the patient s mother that her son ought to refrain from participating in contact sports. This advice was appropriate to give due to the nature of the patient s injury. I told Ms B that the fracture had healed and that there were no issues. However, I explained that I thought I may not have told her about the advice to avoid contact sports. I do not recall the order of the discussion but I certainly would have introduced small talk rather than just mention this clinical point on its own. [ ] 18. 'I believe I asked Ms B how her trip home was. I asked this as part of an exchange of general polite conversation. I remember that when I was on the phone to Ms B I could hear children making noises in the background. 31. In your oral evidence to the tribunal you confirmed the sequence of events as described. You maintained that the telephone call to Ms B had a clinical reason. 32. In her oral evidence under cross examination, Ms B confirmed that the children would have been on holiday from school as the telephone call took place in August. She could not recall whether the children were in the house or outside at the time of the telephone call. During cross examination Ms B provided differing answers such as saying that the children were playing outside at the time of the phone call; they could have been inside the house at the time of the phone call; or that they were walking past her at the time of the phone call. Further, Ms B in her evidence said that it was possible that you had mentioned that her son should refrain from participating in any contact sports. 33. The tribunal took account of paragraph 30 of Ms B s witness statement dated 30 July 2016, in which she stated: 'I have no recollection of him offering this further advice, and even if he did say it, his behavior during the telephone call, asking me questions that made me alarmingly uncomfortable are the ones that stuck in my memory.' 34. The tribunal also took account of the fact that there was no evidence or suggestion that you had attempted to make further contact with Ms B. 10

11 35. In addition, in your initial meeting with the Trust, when you did not know the detail of this allegation, you indicated that you may phone a patient if you had forgotten to tell them something and, in this instance, the letter to the GP does talk of Ms B's son not participating in contact sports. 36. In light of the evidence, the tribunal was satisfied that it was more likely than not that there was a clinical reason for your actions in telephoning Ms B. It therefore found paragraph 4 of the allegation not proved. Paragraph 5 Paragraph 6 Paragraph 7 During the telephone call referred at paragraph 3 above you asked Ms B a. where she lived, asking for specific detail as to her location, or words to that effect; b. how her trip home from your surgery was, or words to that effect; c. whether she was married, or words to that effect. Admitted and found proved in its entirety On 27 January 2014 you treated Ms C with whom you had a close personal relationship, in that you: a. carried out an examination; Admitted and found proved b. referred her for an X-ray; Admitted and found proved c. administered a cortisone injection. Admitted and found proved 1. On 26 February 2015 you invited Dr D to attend your office to view teaching presentations and you: a. told Dr D that: i. if she 'found someone to confide in', who was not her boyfriend, this would not be cheating or words to that effect; Admitted and found proved ii. 'things would be awful' when she got to Glasgow, and she had to 'look after' her boyfriend, so she 'needed to have fun' whilst 11

12 she was in Elgin or words to that effect. Admitted and found proved with the exception of the words 'things would be awful' 37. The tribunal had regard to the statement Ms D gave to the Trust on 11 March 2015, in which she stated: He told me I should enjoy my final few months in Elgin with my friends because moving to Glasgow would be more stressful with being in a new place having my boyfriend depend on me all the time. 38. In her oral evidence, Dr D described you as saying 'something like it would be more difficult for you when you got to Glasgow' as opposed to 'things would be awful'. The tribunal notes that the words 'things would be awful' appear only in Dr D's witness statement to the GMC, which was given on 31 October 2016, more than a year after the event in question. The tribunal therefore considers on Dr D's own evidence that it is more likely than not that you did not use the words 'things would be awful'. b. moved your chair so that you were closer to Dr D so that your knees were touching; Admitted and found proved c. made prolonged eye-contact; Admitted and found proved d. hugged Dr D on one or more occasion; Admitted and found proved e. hugged Dr D pressing your chests together; Admitted and found proved f. kissed Dr D s shoulder on one or more occasion; Admitted only on the basis that you kissed Dr D's shoulder only once. Found proved that you kissed Dr D's shoulder on more than one occasion. 39. In considering how many times you kissed Dr D, the tribunal had regard to both the documentary and oral evidence given by Dr D. The tribunal was of the view that Dr D's evidence on this point has been consistent across all of her accounts of the event. During her oral evidence to the tribunal she was sure that there had been multiple kisses on her shoulder, moving toward her neck. Dr D's written statement to the Trust, dated 11 March 2015 contained the following description: He pulled me in tighter to his chest and lowered his head onto my shoulder so his lips were touching my skin, and he kissed my shoulder repeatedly for a few seconds, edging slightly closer to my neck each time. 12

13 A similar account was given in Dr D's interview with the Trust on 8 April 2015, in which she stated: He kind of pulled me real close and then bent his head down over my shoulder and put his lips on my neck and started kissing it. 40. Dr D's evidence to the tribunal was clear that there were four to five kisses of one or two seconds each. 41. In contrast, your evidence has varied on this point since the allegation came to light. In your initial interview with the Trust, which took place on 8 May 2015, you described Dr D's assertion that you kissed her on the neck as 'completely untrue'. During that meeting, you indicated that the only physical contact was a handshake at the end of the meeting and that it was 'amazing to hear this allegation'. On 26 May, when interviewed, you said that 'when I opened the door she [Dr D] shook my hand, and she went out and there was nothing to it. It was an open and honest interaction.' You also said in that meeting '[ ] she shook my hand as she was going out of the office as a courtesy and thank you and I told her I had to go and see patients downstairs [ ]'. 42. In your oral evidence, you described the reason for this initial denial as being because you were 'scared.' The tribunal considered carefully the reasons you may have lied initially, and accept you may have been feeling isolated professionally and concerned about being questioned. However, it is satisfied that you have continued to minimise the fact that you kissed Dr D during this incident. The tribunal found your differing accounts of the physical contact you had with Dr D to be inconsistent and misleading, and considers that it is indicative of attempts on your part to minimise and downplay the extent of your contact with her. The tribunal did not believe Dr D had exaggerated the number of times you kissed her, and considered that this would have been a particularly memorable aspect of the incident for her. The tribunal considered your assertion that you kissed her through her clothing, and has listened carefully to the evidence given by Dr D and by you. The tribunal has seen a photograph of the garment worn by Dr D, which is a wide necked top which would expose the shoulder area close to its end or tip. It was suggested in cross examination on your behalf that the kiss was effectively part way down the clothed upper arm. The tribunal rejects that assertion and finds it more likely than not that the kisses were as described by Dr D in her oral evidence, to her flesh, starting midway between the tip of her shoulder and her neck and moving toward her neck. 43. On the balance of probabilities, the tribunal has determined that it is more likely that Dr D's evidence that you kissed her multiple times on the shoulder accurately reflects what happened. The tribunal therefore found paragraph 7(f) proved. 13

14 g. failed to show any presentation slides to Dr D; Admitted and found proved h. when asked by Dr D if you tricked her into coming into your office you laughed and replied 'I hope you did not got the wrong idea' or words to that effect. Admitted only in relation to the words 'I hope you did not got the wrong idea'. Found proved in its entirety. 44. Dr D, in her statement for the Trust signed in March 2015, in her interview with the Trust on 8 April 2015, in her witness statement for these proceedings, in answering questions from GMC Counsel and whilst being cross examined by Mr Hugh-Jones QC on your behalf, gave consistent and cogent accounts about these specific words and actions. 45. The tribunal had regard to your explanation in evidence of why you told Dr D you hoped she did not get the wrong idea, that you said this because you had failed to show the presentations to her. The tribunal did not consider that this statement would make much sense, had Dr D not challenged you in some way regarding the reasons for you inviting her to your office. On the balance of probabilities, the tribunal considered that it is more likely than not that Dr D's account is accurate. Paragraph 7(h) is therefore found proved. Paragraph 8 Your conduct as described at paragraphs 1, 3, 5 and 7 was: a. inappropriate; Admitted and found proved b. sexually motivated. Found not proved in relation to paragraphs 1, 3 and 5, Found proved in relation to paragraph 7 Sexual motivation in relation to Paragraph The tribunal was mindful that this incident was at the conclusion of a business meeting which took place in the workplace in the morning. It also took into account your circumstances at the time and was satisfied that it was likely that you did feel relieved that the outcome of the meeting was positive. The tribunal noted that in his letter, which appears to be incorrectly dated as 15 May 2012, Mr F, Consultant Orthopaedic Surgeon, Dr Grays Hospital, stated: I cannot recall whether this was the first time Dr Mehta and [Ms A] had met or whether there was another reason for the meeting but at the point where one would normally say goodbye or possibly shake hands, Dr Mehta kissed [Ms A] on the cheek as one might do when meeting and greeting in a social situation. Whilst inappropriate for a business situation, at the time I didn t really think much else of it. 14

15 47. The tribunal has already determined that you did not kiss Ms A on her mouth. On the balance of probabilities and the evidence available to the tribunal, it is satisfied that, while your behaviour in kissing Ms A, as admitted, was inappropriate, it was not sexually motivated. Sexual motivation in relation to paragraph 3 and In considering whether your actions were sexually motivated, the tribunal considered paragraph eight of the allegation in relation to paragraph three and five together. It had regard to its finding in relation to paragraph four above. It also took into account your admissions in relation to paragraph three and paragraph five. You had already admitted that your actions in these paragraphs were inappropriate. You accessed Ms B s personal contact details from her son s medical record and then telephoned her. You then engaged in inappropriate additional conversation with Ms B which did not relate to her son s health and was not related to any clinical problem. 49. The tribunal was mindful that you contacted Ms B within a few hours after her son s appointment with you. In her written and oral evidence, Ms B confirmed this. The tribunal also took into account that this was the only contact after the appointment you had with Ms B. There is no information to suggest, nor has it been suggested by the GMC or Ms B, that you made any further contact with Ms B. 50. The tribunal considered that the questions you asked of Ms B were ambiguous, in other words, not obviously or overtly sexual in the absence of any evidence of sexually motivated behaviour before or after. The tribunal has therefore found allegation 8(b) in relation to paragraphs three and five not proved. Sexual motivation in relation to paragraph In considering whether your actions were sexually motivated, the tribunal considered paragraph 7 as a whole. 52. The tribunal considered the content and context of your interactions with Dr D leading up to 26 February In relation to the Facebook message, the tribunal considered that although Facebook is used widely, sending a message to a junior doctor after work, post eight o clock on a Friday evening was indicative of a wish to engender a personal, but not necessarily sexual, relationship with Dr D. On 24 February 2015, whilst you were both in the coffee room there was a conversation between you during which Dr D disclosed details of her personal circumstances, particularly in relation to the serious ill health of her boyfriend. In light of this prior personal contact, the tribunal is satisfied that it is more likely than not that your intention in going with Dr D to your office on 26 February was in fact to have a further personal discussion. 15

16 53. The tribunal was not persuaded by your evidence that the reason you went with Dr D to your office was as part of a teaching exercise, in order to show her presentation slides on your computer. Both you and Dr D agree that you never turned on your computer, although you suggested to the tribunal that you intended to. Dr D was clear in her oral evidence, as she had been in her written evidence, that you never made any attempt to do so or to talk about anything related to teaching. Given your initial denials regarding the nature and extent of physical contact in this meeting the tribunal finds it more likely than not that Dr D's account is accurate. 54. The tribunal was also not persuaded by your account as to what you meant when you said to Dr D that if she 'found someone to confide in' who was not her boyfriend, 'this would not be cheating'. Your explanation for saying this was it would not be wrong to disclose his personal medical circumstances. The tribunal was of the view that this is an implausible explanation of your comment to Dr D, as the word 'cheating' has a commonly accepted meaning in ordinary language when talking of a personal relationship, i.e. being unfaithful. Given the context of the interaction as whole, it is more likely than not that this ordinary meaning of the word 'cheating' was what you meant by this. 55. The tribunal was asked by Mr Hugh-Jones QC, on your behalf to consider the location of the office, the size of the office and the mechanism of the office door. The tribunal does not find that you planned this meeting in great detail to facilitate a sexual encounter. The tribunal has, however, found that you were overly interested in Dr D and her personal circumstances. The tribunal is satisfied that it is more likely than not, given your undue interest in Dr D and her personal circumstances that your purpose in going with Dr D to your office on this occasion was to further discuss her circumstances, and to console her, but that during the course of the interaction your interest in her came to include sexual motivation. 56. Crucially, the tribunal does not believe your repeated assertion in evidence that you kissed Dr D on the shoulder out of a desire to show empathy and in your words 'to comfort her in that empathetic manner as I would do my son's girlfriend, or my niece, my daughter'. Having found that you in fact kissed Dr D on her shoulder multiple times, as she describes, it does not consider that it is plausible that you would do this out of any other motivation than a sexual one, regardless of any unhappiness or isolation, which the tribunal accepts, you were feeling professionally. The tribunal has therefore determined that your actions in paragraph seven were sexually motivated. 16

17 Determination on Adjournment 20/10/2017 Dr Mehta: 1. This determination will be handed down in private; a redacted version will be published with any references to the consideration of an interim order having been removed. Adjournment 2. The tribunal announced its determination on facts at on 20 October This hearing was originally scheduled to conclude on 20 October Having announced its determination on facts, the tribunal determined to adjourn consideration of impairment until a later date. This was following application supported by both parties and was a view the tribunal had reached in any event. Consideration of an Interim Order 3. The tribunal then considered whether, under section 41A of the Medical Act 1983, as amended, it was necessary to vary the interim order on your registration in the light of its findings on fact. 4. The tribunal heard that you are currently subject to an interim order of conditions, and that these conditions are due to expire on 9 November It heard that the GMC has applied to the High Court for an extension of these conditions. 5. The tribunal had sight of the order of conditions currently in place on your registration. It was satisfied that, pending this tribunal reconvening to consider impairment, these interim conditions remain sufficient to guard against any potential risk you may pose to members of the public, and are sufficient to uphold the wider public interest. Neither party sought any variation of the interim order. The interim order therefore remains in place unvaried. 6. Hearing adjourned until on 28 February 2018, when the tribunal will reconvene to consider impairment. Determination on Impairment - 02/03/2018 Dr Mehta: 1. Having previously announced its determination on facts, the tribunal has now considered whether your fitness to practise is impaired by reason of misconduct. 17

18 2. The tribunal has taken into account all the evidence before it, including your oral evidence at this stage of proceedings and your written reflections, dated 11 February The tribunal has also heard from a number of testimonial witnesses. 3. The tribunal has considered the submissions of Ms Binding, Counsel, on behalf of the General Medical Council (GMC) and those of Mr Jenkins, Counsel, on your behalf. 4. Ms Binding submitted that your fitness to practise is impaired by reason of misconduct. Ms Binding submitted that your conduct represented a breach of professional boundaries and, in one instance a breach of sexual boundaries. She referred the tribunal to paragraphs 16(g), 53 and 65 of the GMC s guidance, Good Medical Practice (2013) which state: 16. In providing clinical care you must g. wherever possible, avoid providing medical care to yourself or anyone with whom you have a close personal relationship. 53. You must not use your professional position to pursue [an] improper emotional relationship with a patient or someone close to them. 65. You must make sure that your conduct justifies your patients trust in you and the public s trust in the profession. 5. Ms Binding also referred the Tribunal to paragraph 6 of the GMC s guidance, Maintaining a professional boundary between you and your patient (2013) which states: 6 You must not use your professional relationship with a patient to pursue a relationship with someone close to them. For example, you must not use home visits to pursue a relationship with a member of a patient s family. 6. Finally, Ms Binding referred the Tribunal to paragraph 6 of the GMC s guidance, Leadership and management for all doctors (2012) which states: 7. You must tackle discrimination where it arises and encourage your colleagues to do the same. You must treat your colleagues fairly and with respect. You must not bully or harass them or unfairly discriminate against them. You should challenge the behaviour of colleagues who do not meet this standard. 7. Mr Jenkins conceded that your conduct in relation to Dr D amounted to misconduct. However, he stated that your fitness to practise is not impaired as a result. 18

19 8. Mr Jenkins submitted that it is now between three and six years since the conduct that brought you before this tribunal occurred. He stated that you have always accepted that you had crossed boundaries, acted inappropriately and that you recognise that you should have done things differently. Mr Jenkins stated that you have taken steps to address your conduct in that you have undertaken courses and been open and honest about it with others. He stated that this is clear from the testimonials submitted on your behalf. 9. Mr Jenkins referred the tribunal to the extensive multisource feedback from patients and colleagues in which he stated there is nothing to suggest that anyone has any concerns in relation to you. He submitted that your misconduct was at the less serious end of the scale of sexual misconduct. Mr Jenkins submitted that on the evidence before the tribunal there is clearly no risk of repetition of your misconduct and he stated that a member of the public, with full knowledge of your remediation and insight, would not consider your fitness to practise to be impaired today. Tribunal decision 10. In deciding whether your fitness to practise is impaired, the tribunal has exercised its own judgement. It has borne in mind the statutory overarching objective which is to protect the public. This includes: 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. Misconduct 11. The tribunal first considered whether the admitted and proven facts in this case amount to misconduct. Ms A 12. You have admitted that between 26 April 2012 and 2 May 2012 you attended a meeting with Ms A, a colleague, and at the end of the meeting you kissed her near her mouth. You accepted that your conduct was inappropriate. 13. The tribunal was satisfied that your conduct in relation to Ms A, a senior manager, was inappropriate and misguided and should not have occurred. It considered that you had made an error of judgement and crossed a professional boundary leaving Ms A upset and embarrassed. However, the tribunal had regard to your evidence that at the time of the meeting with Ms A you had been anxious about your position within the hospital. Having considered all the evidence, the tribunal was satisfied that whilst the incident was undoubtedly upsetting for Ms A, your kiss was a spontaneous, but inappropriate, expression of your relief that the meeting, by 19

20 your understanding, had gone well. However, the tribunal was not satisfied that your conduct was sufficiently serious so as to amount to misconduct. Ms B 14. You have admitted that, on 6 August 2013 you met Ms B when she attended a clinic appointment with her son. You admitted that, following the appointment, you used Ms B s personal contact details, obtained from her son s medical record to telephone her. During the telephone call, you asked Ms B: where she lived, asking for specific detail as to her location, how her trip home from your surgery was and whether she was married. You accepted your conduct was inappropriate. 15. The tribunal has previously stated that it accepted that you had a clinical reason for contacting Ms B following the appointment and it was also satisfied that your conduct was not sexually motivated, albeit you had crossed boundaries by asking personal questions. You accepted that your questions were inappropriate and could be misconstrued by Ms B, as indeed they were. However, the tribunal was not satisfied that your conduct in asking inappropriate personal questions was sufficiently serious so as to amount to misconduct. Ms C 16. You have admitted that, on 27 January 2014 you treated Ms C with whom you had a close personal relationship, in that you carried out an examination, referred her for an X-ray and administered a cortisone injection. 17. It is clear that you failed to follow the GMC s guidance in relation to providing medical care to someone with whom you had a close personal relationship. However, the tribunal noted Ms C s evidence that she was in pain and that she had approached you, in a clinical setting, on the recommendations of colleagues. The tribunal noted Ms C s evidence that on a subsequent occasion you refused to provide care and advised her to see another practitioner. In the circumstances, the tribunal was not satisfied that your conduct was sufficiently serious so as to amount to misconduct. Dr D 18. You admitted that, on 26 February 2015 you invited Dr D to attend your office to view teaching presentations. You also admitted that when Dr D was in your office you moved your chair so that you were closer to Dr D so that your knees were touching, made prolonged eye-contact, hugged Dr D on one or more occasion, hugged Dr D pressing your chests together and failed to show any presentation slides to her. In addition, you admitted that you had also kissed Dr D s shoulder on one occasion. However, the tribunal found that it was more likely that you had kissed Dr D multiple times on the shoulder as she alleged. The tribunal found that, 20

21 when asked by Dr D if you had tricked her into coming into your office you laughed and replied I hope you did not got [sic] the wrong idea or words to that effect. You admitted that your conduct towards Dr D was inappropriate. The tribunal found that it was also sexually motivated. 19. It is clear that you, as a senior colleague of Dr D s, were in a position of trust and your actions breached that trust and the professional and sexual boundaries in place between colleagues were also breached. Whilst the tribunal accepts that your sexually motivated behaviour may not have been premeditated, it is clear that it did not meet the standards of a registered medical practitioner. The Tribunal was satisfied that it amounted to misconduct which was serious. You have conceded this through Mr Jenkins. Impairment 20. The tribunal then went on to consider whether your fitness to practise is impaired by reason of your misconduct. 21. In making its decision, the tribunal bore in mind that the purpose of fitness to practise proceedings is not to punish a doctor for past wrongdoing but to maintain proper standards in the profession and to protect the public. The tribunal must look forward, not back, but in order to determine whether a doctor is fit to practise without restriction today it must take into account the way in which a doctor has acted, or failed to act, in the past. 22. Whilst there is no established definition of impairment, the tribunal had regard to paragraph 76 of the judgment in the case of CHRE v NMC & Paula Grant [2011] EWHC 927 (Admin), in which Mrs Justice Cox adopted a helpful approach to determining impairment in the following way: Do our findings of fact in respect of the doctor s misconduct 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 23. There is no evidence before the tribunal to suggest that you have in the past acted, or are liable in the future to act, so as to put patients at unwarranted risk of harm. However, the tribunal is in no doubt that your proven conduct in relation to a junior colleague brings the medical profession into disrepute and breaches a 21

22 fundamental tenet of the medical profession. There is no question that at the time of this incident your fitness to practise was impaired. 24. The tribunal noted that since these events you have undertaken extensive remediation, including a number of courses on boundaries at your own expense. This remediation has been aimed at ensuring that such inappropriate behaviour is not repeated in the future and that you always respect professional and personal boundaries. It is clear that you have been extremely open with colleagues, sharing your experiences and what you have learned from them. The tribunal has been provided with a significant number of testimonials from professional colleagues who attest to the fact that you are a respected and valued clinician. You are clearly remorseful for your behaviour and the tribunal is satisfied that you are highly unlikely to repeat it. 25. However, the tribunal has reservations about the timing and nature of your insight in relation to aspects of your misconduct. 26. The tribunal is in no doubt that you are fully aware that your actions in relation to Dr D were inappropriate and wrong but it has concerns about the candour demonstrated by you in relation to those actions. Where you have indicated you now accept the findings of the tribunal and that Dr D s recollection must be correct you only indicated this after the tribunal had made its findings of fact. You have indicated that this has allowed further reflection and you accept her evidence. You were there and know what happened and the tribunal finds that although you accept the tribunal s findings and have insight into why the behaviour was wrong, you have continually failed to display candour in your live evidence in relation to Dr D. You indicate in your reflective piece of February of this year that you are ashamed that this complete and total acceptance of responsibility has taken so long and come in such bite size chunks. The tribunal find the gradual change in your position from denying any impropriety towards Dr D to eventually conceding in full her account, including your sexual motivation, to be regrettable. The tribunal must give you credit for your acceptance as it is now, but your position until this point has done you no credit. The tribunal does not speculate as to why it has taken so long, but it is satisfied you know what happened was wrong and would not repeat the behaviour. 27. The tribunal noted the events leading up to the incident, specifically the fact that you had previously attempted to engender an inappropriate personal relationship with Dr D by contacting her outside work via Facebook after eight o clock on a Friday evening. You then engaged in a personal conversation with her on 26 February 2015 before inviting her to your office for what she believed to be a teaching opportunity. The tribunal has already stated that it believed that it was more likely than not that you had intended to have a further personal discussion with Dr D in your office, rather than conducting the training that you had proposed. However, you continue to maintain that that your actions were not pre-planned. 22

23 28. In your reflective statement, written during the adjournment period, after the tribunal s determination on facts was announced, you stated that listening to the evidence given by the witnesses was challenging. You stated that, in particular, Dr D s evidence deeply affected you as, although you knew you had upset her with your behaviour, you were not completely open to how badly it had affected her. You stated that you were upset and distressed at the tribunal s finding that you had kissed Dr D multiple times and that your conduct was sexually motivated. 29. You stated that after deep, ruthlessly honest introspection you are now in no doubt that Dr D s memory of the events was accurate whereas yours was not. You stated that you believe that the extreme guilt, embarrassment and shame that you felt after the interaction closed your mind to the full extent of what happened and drove your subconscious to try and make the event seem somehow less serious. 30. The tribunal noted that your acceptance that Dr D s account of the incident was accurate has only come in the last four months and after the tribunal had made its determination on facts and concluded that it preferred Dr D s versions of events to yours. 31. The tribunal has read evidence and heard live evidence from your current professional colleagues, which it accepts, about your qualities as a clinician and that there has been no hint of any repetition of inappropriate behaviour. It is repeatedly said that you are a popular individual and helpful to those with whom you work. Despite the reservations that the tribunal has set out in an earlier paragraph in relation to your candour about the most serious aspect of this matter, it is satisfied that this recent evidence is a true reflection of the current position and you would not repeat such inappropriate behaviour in the future. 32. However, notwithstanding the tribunal s view that you would not repeat such behaviour your conduct in relation to Dr D in February 2015 was a serious departure from the standards and behaviour expected of a doctor in the position of trust and responsibility you held. You initiated an inappropriate personal relationship with a junior colleague, contacting her outside working hours, showing an inappropriate interest in her personal life, facilitating a meeting to pursue that inappropriate interest in her and then during that meeting whilst alone in a room with her instigating unsolicited physical contact that became sexually motivated. 33. In those circumstances, the tribunal concludes that a finding of impairment is necessary to promote and maintain public confidence in the medical profession, and to promote and maintain proper professional standards and conduct for members of the profession. 34. You have shown by your lengthy and very public remediation why these matters are serious. You have shown by your actions that you wish others to avoid 23