Public Minutes of the Investigation Committee Date of hearing: 31 March & 31 May 2017 Name of Doctor Dr Judith Todd Doctor s UID 4187990 Committee Members Mr Pradeep Agrawal (Chair) (Lay) Ms Toni Foers (Lay) Dr Nitisha Patel (Medical) Professor Jennifer Adgey (Medical) Dr Andrew Leahy (Medical) Legal Assessor Panel Secretary Mr Bernard Phillips Mr Declan Leahy Attendance and Representation GMC Representative Doctor s attendance Doctor s representative Ms Jane Acton, Counsel Dr Todd was present and represented. Ms Laura Donald Outcome Warning
Determination Dr Todd, 1 Throughout this hearing the Investigation Committee carefully considered all the material before it including the submissions made by Ms Laura Donald on your behalf, and those made on behalf of the GMC by Ms Jane Acton. It has accepted the advice of the Legal Assessor. Background 2 On 28 September 2015 one of your sisters made a complaint to the GMC that raised concerns about your fitness to practise. In her complaint, she alleged that you had been writing private prescriptions of Zopiclone for a close relative (Patient A) who had insomnia, and that this started sometime around 2005. She stated all of the private prescriptions went through [a Pharmacy] in Glasgow which is owned by [another other relative who] was aware of who the prescriptions were for and no questions were asked. 3 She further alleged that we asked [you] repeatedly to take [Patient A] to the GP to get her assessed for dementia and [you] would either agree, then do nothing or stop communicating. She stated that when another sister had suggested taking Patient A to the GP you sternly [told] her to stay away from the GP and that on one occasion when she took Patient A to see the GP you left her an angry voicemail yelling at [her] to stay away from the GP and that [she] was in trouble. 4 The GMC commissioned two expert reports, one from a General Practitioner, Dr Leonard Peter, and one by a consultant anaesthetist, Dr Stephen Wimbush. 5 In his report, dated 26 April 2016, Dr Leonard Peter opined that the overall standard of your prescribing and behaviour was seriously below that expected of a reasonably competent general practitioner. Dr Peter said that none of [the] evidence points to any appropriate assessment being made by [you] and that if it is accepted that such an assessment did not take place, then the prescription of sleeping tablet (sic) by [you] would have demonstrated a standard of behaviour and prescribing which was seriously below that expected of a reasonably competent practitioner due to the risk of inappropriately treating the symptom of insomnia without ascertaining the possibility of underlying causes would present risks to a patient s welfare.
6 With regard to your diagnosis, Dr Peter expressed the opinion if it is accepted that if the only treatment plan was that [you] re-prescribed medication on request then this would have demonstrated a standard of treatment, planning and monitoring which was seriously below that expected of a reasonably competent general practitioner Zopiclone is a drug which is associated with dependence and side-effects, and these should be recurrently and objectively monitored. 7 Dr Peter stated that in his opinion the standard of your prescribing was seriously below that expected of a reasonable competent GP whilst, as a consultant anaesthetist, [you] would have a good understanding of the pharmacology of Zopiclone, [you] would not have been trained in the prescribing of these drugs in the community in the doses normally used. 8 He concluded that, if it is the case that [you] prescribed the medication for a significant period of time, be it one year or more, then this would have demonstrated a standard of prescribing seriously below that expected of a reasonably competent doctor in [your] position. 9 In his report, dated 19 May 2016, Dr Stephen Wimbush stated that there is insufficient evidence to determine whether [you] obtained an adequate and appropriate history from Patient A before prescribing medication for her. He opined that as Patient A s [relative], [you] had significant knowledge of Patient A s medical history and symptoms and that on the balance of probabilities, [you] knew more of Patient A s background and medical history than her GP would have and therefore had obtained an adequate medical history. 10 In regard to whether you had reached the correct diagnosis or not, Dr Wimbush did not provide an opinion. However he noted that in a statement provided by Patient A s GP, he believed that Zopiclone was an appropriate drug in this setting and he chose to continue prescribing it, subject to a full clinical review. 11 Dr Wimbush further opined that your prescribing of Zopiclone to Patient A was inadequate and inappropriate. He made reference to GMC guidance and standards which state that, wherever possible, doctors must avoid prescribing for anyone with whom they have a close personal relationship and that when a doctor does prescribe for a family member, that clear records need to be kept regarding the decision to prescribe and the patient s GP needs to be informed. 12 With respect to whether the prescription of Zopiclone was clinically indicated or not, Dr Wimbush considered that it was inadequate and inappropriate for [you] to have continued prescribing zopiclone for a number of years. 13 Dr Wimbush stated that the overall standard of care you provided to Patient A does fall below, but not seriously below, the standard expected of a reasonably competent consultant anaesthetist. He opined that this is because [you] continued to prescribe a drug (zopiclone), that should only be prescribed for a maximum for 4 weeks, to 2
[Patient A], for a number of years, without formal review within a general practice setting. He concluded that the standard of care was below, but not seriously below the expected standard, due to the mitigating circumstances involved in the case. 14 In a letter dated 21 October 2016, the GMC wrote to you to inform you that the case examiners had considered all of the evidence provided to them, and had concluded that this was a case in which they were minded to issue you with a Warning. They invited you to respond to this. 15 Laura Donald, on your behalf, wrote to the GMC on 23 January 2017 stating that you do not wish to accept the warning as proposed, and that you would like to exercise your right to an Investigation Committee hearing. 16 The GMC wrote to you on 14 February 2017 to inform you that you had been referred to the Investigation Committee for an oral hearing. Findings of Fact GMC Submissions 17 At the outset of the hearing today Ms Acton told the Committee that the GMC would not be relying upon paragraph 1 (a) or 1 (b) of the allegation, which were therefore struck out. 18 Ms Acton then explained the background of the case, and drew the Committee s attention to the original complaint provided by the complainant, the witness statements provided by Patient A s family members and by Patient A s GP. The essence of the complaint is that you prescribed Zopiclone, a sleeping tablet, for a member of your family without telling her GP, for seven years. 19 Ms Acton drew the Committee s attention to the two expert reports provided by Dr Peter, a GP, and Dr Wimbush, a consultant anaesthetist. Although you had said that Patient A was reluctant to attend her GP as a justification for prescribing for her, Ms Acton referred the Committee to Dr Peter s report which said that there is evidence in the notes that Patient A did attend her GP on occasions during the period in question, and that you should have taken action earlier. She also highlighted Dr Peter s concern that long term use of Zopiclone is associated with dependence and side effects. 20 Ms Acton also drew the Committee s attention to Dr Wimbush s opinion that there is no evidence of you having undertaken any regular or formal review of Patient A s Zopiclone. She stated that the Committee should have greater regard for the expert report written by Dr Peter, a General Practitioner, as you had been acting in place of her GP in treating and prescribing for Patient A. 21 Ms Acton accepted that you would be familiar with the history of Patient A, due to being a close member of the family and that Zopiclone could be prescribed up to 3
7.5mg per day. She acknowledged that there was pressure on you from your family to prescribe. She submitted that the record of prescriptions, which you obtained from the pharmacy and provided to the GMC shows that in the last 2 years of prescribing, the frequency of prescriptions increased, and that it appeared, based on statements from Patient A s husband, that you were not monitoring Patient A s consumption of Zopiclone. She submitted that Patient A was developing a tolerance to the drug. 22 In response to submissions made by yourself, that Patient A did not want you to inform her GP of the Zopiclone prescription, Ms Acton submitted that you should have recorded this and sought advice from another GP. Ms Acton submitted that, based on your own statement, you were aware from at least 2013 that your actions were falling short of the guidance provided to doctors. 23 Ms Acton suggested that as Patient A was later taken to a lower dosage of 3.75mg of Zopiclone, and that this medication was eventually replaced by an alternative, that this suggests an earlier review of Patient A s medication was indicated. Defence Submissions 24 Ms Laura Donald, on your behalf, submitted that you accepted the allegations laid out in paragraphs 1 (c), 1 (f), 1 (g), and 3. Ms Donald clarified that the allegations in dispute were those laid out at paragraphs 1 (d), 1 (e) and 2 in the draft particulars. She asked the Committee to disregard any evidence not related to these allegations. 25 Ms Donald submitted that a record of the prescriptions was kept, not by you or in Patient A s medical records, but by the pharmacy. She submitted that there is no evidence of Patient A taking more than was prescribed for her, and drew the Committee s attention to the statement provided by Patient A s husband, which stated that Patient A took 1 tablet per day. She also drew the Committee s attention to a statement from Patient A s GP, who had continued to prescribe the same drug, albeit at a lower dose, for some time. 26 Ms Donald submitted that you had a good knowledge of Patient A s health, background and medication, drawing the Committee s attention to Dr Wimbush s opinion of the same, and that you ensured that there was no conflict with other medication. She submitted that as you are a consultant anaesthetist, you are well placed to do this. 27 Ms Donald further submitted that you accepted that Patient A s tolerance to the prescription increased over the period, but not to a dangerous level, and that this is part of the nature of the drug. Committee Determination 28 In regard to paragraph 1 (d) of the allegation, as to whether or not you devised an appropriate treatment plan for Patient A the Committee determined that you did not 4
devise an appropriate treatment plan for Patient A, and that this allegation is found proved. In regard to 1 (d) (i) it determined that a treatment plan requires a diagnosis and an assessment exercise, the evidence is that you simply acceded to Patient A s request for Zopiclone, which she had previously obtained abroad. You stated that you did not instigate the prescription of Zopiclone [Patient A] was already taking it from time to time having bought it herself in Spain and later in Germany and later you stated that [you] found yourself in a rather difficult position with regards to being asked for Zopiclone. The Committee accepts that Patient A had insomnia and anxiety. In regard to 1 (d) (ii) the experts considered it necessary to monitor the risk of dependence and side effects, the evidence is that you did not do so, as you had made no record of the prescriptions or your treatment, as you have already accepted. 29 In relation to paragraph 1 (e) of the allegation, as to whether you failed to adequately monitor Patient A s consumption of Zopiclone, the Committee found this proved. In your own statements you admitted that you were made aware of a concern about the frequency of the dispensing in April 2015. This gives rise to an inference that you did not monitor it before then, and of course there are no notes to suggest otherwise. The record which you obtained from the pharmacy was obtained after the event and is clearly not a matter which you kept under review at the time. 30 In regard to paragraph 2 of the allegation, as to whether or not the long term prescription of Zopiclone was clinically indicated for Patient A, the Committee determined that this was found not proved. It determined that this is because of the total lack of evidence provided to record monitoring, diagnosis or a record of an assessment made by you. The Committee note the evidence provided by the expert, which has been agreed by yourself, that Zopiclone is generally a short term drug, but it can be prescribed on a long term basis with justification for certain patients. You said as much yourself in one of your own statements. In order to justify a long term prescription, one needs to carry out a continuing review of the patient s progress and take account of other conditions from which the patient suffers. There is no evidence that you did or did not do that in this case. The burden of proof is on the GMC, and accordingly the matter is not proved. Warning 31 Having being provided with the Committee s determination on the fact s, both parties provided submissions on whether or not a warning is appropriate in this case. 5
GMC Submissions 32 Ms Acton submitted that it would be appropriate for the Committee to close this case with a Warning, regardless of any mitigation provided by you. She submitted that your actions constituted a substantive breach of Good medical practice (2013), specifically paragraph 16 (g) which states that, wherever possible doctors should avoid providing care to those with whom they have a close personal relationship and paragraph 20 & 21 which concern the importance of maintaining clear records. Ms Acton submitted that there was similarly a breach of the earlier version of Good medical practice that covered the period, specifically paragraph 5 which mirrors paragraph 16 (g) of the current guidance. 33 Ms Acton brought the Committee s attention to the standards set out in the GMC s guidance on prescribing, published in 2008 and republished in 2013, which state that doctors should avoid prescribing for patients they have a close personal relationship with, and that if they do prescribe that a clear record should be made of their treatment at the same time or as soon as possible. 34 Ms Acton stated that your actions were a serious departure from the standards expected of a doctor. She submitted that this behaviour was prolonged and persistent, over at least 7 years, in which you continually failed to make any records. She submitted that as a consultant anaesthetist you should have been aware of the guidance on prescribing and explored alternative treatment for Patient A. 35 She referred the Committee to Dr Peter s expert report, which opined that in prescribing for as long as you did without arranging an appropriate assessment meant that your overall standard of prescribing and behaviour was seriously below that expected of a reasonably competent general practitioner. 36 Ms Acton submitted that a right thinking member of the public would expect a warning to be imposed in this case and that not imposing a warning risks failing to uphold the principles set out in the GMC s overarching objective. Defence Submissions 37 Ms Donald, on your behalf, submitted that this is a case that should be concluded with no further action. She stated that you accept that your actions were a departure from the standards expected of you, but not a significant departure. She submitted that you felt you had to prescribe for Patient A as she was not able to go to her GP and that it was clear from the statements provided by some of your family members that you had resisted other requests for prescriptions. 38 Ms Donald submitted that the drug prescribed to Patient A was appropriate; referencing the fact that it was continued by her GP for over a year after you stopped prescribing. She also noted that no harm had come to Patient A as a result of your 6
actions, and that due to your seniority and expertise you felt you were able to deal appropriately with her condition. 39 Ms Donald advised the Committee to prefer the opinion of Dr Wimbush in his expert report, submitting that it would be appropriate to do so as he is of the same specialty as you. She highlighted his opinion that your overall care was below, but not seriously below that expected of a reasonably competent consultant anaesthetist. 40 Ms Donald submitted that there are a number of mitigating factors in your favour. She stated that you have previous good history across an otherwise unblemished career and referenced the positive testimonials provided by your colleagues who have full knowledge of the proceedings against you. She submitted that you accept that your actions were an error of judgment and that you have cooperated fully with the investigation. 41 Ms Donald stated that this case was a single issue and that there is no risk of repetition as you have reflected extensively on your conduct. She also referenced the fact that the IOT review panel, on 18 January 2017, determined that there is no real risk of repetition of the concerns raised when they revoked your interim conditions. Committee Determination 42 The Committee is aware that it must have in mind the GMC s role of protecting the public, which includes: a Protecting, promoting and maintaining the health, safety and well-being of the public b Promoting and maintaining public confidence in the medical profession, and c Promoting and maintaining proper professional standards and conduct for members of that profession 43 In deciding whether to issue a warning the Committee must apply the principle of proportionality, and balance the interests of the public with those of the practitioner. 44 The Committee first considered whether or not your actions constituted a significant departure from Good medical practice and the standards expected of a doctor. It determined that there was a failure to keep proper records which gave rise to many problems. It considered that the number of regular prescriptions over a 7 year period shows a course of conduct which continuously disregarded the prohibition on prescribing for close relatives and it determined that your actions were not isolated. 45 The Committee determined that you were not in a situation where the only possible course of action was to prescribe for Patient A and you should have acted much earlier than you did in taking Patient A to her GP and/or inform Patient A s GP of your 7
actions. The Committee noted that concerns were flagged up by relatives and ignored for several years and considered that you were aware you were in breach of Good medical practice. There is no evidence that you sought advice or guidance throughout this period and the Committee determined that your attitude towards prescribing was cavalier, and highlighted the fact that the prescribing standards which are designed to protect patients as well as doctors were disregarded for a long period of time. 46 The Committee then considered the factors of mitigation involved in this case. They took into account the excellent testimonials that have been provided by your colleagues, and the reflective statements made by yourself. It noted that you were subjected to a lot of pressure from members of your family, and that you were reported to the GMC, not out of concern for a breach of prescribing rules, but out of malice as a result of financial disputes in your family. It took into account the fact that you were working very hard, and had a family of your own to support, including four young children, and that you were plainly concerned to look after Patient A, the relative in question. 47 The Committee determined that it is unlikely that you would repeat these actions, taking into account the reflective statement you have provided, the specific context you found yourself in and the fact that witness statements described you as not prescribing for other family members when they had pressured you. 48 In spite of this the Committee considered that the aggravating factors outweigh the mitigation. The Committee is concerned to promote public confidence in the profession and recognises the need to ensure that the clear and well known rules are observed and that the public have confidence in the regulatory process. 49 The Committee directed that the following warning should be imposed on your registration: From July 2008 until May 2015 you prescribed Zopiclone for a close relative. You failed to adequately monitor the patient s consumption of Zopiclone and failed to make a clear record of your prescriptions, your relationship to the patient and the reason you considered it necessary to prescribe Zopiclone. You did not inform the patient s GP that you had been prescribing for your close relative until almost seven years had elapsed since the first prescription. This conduct does not meet with the standards required of a doctor. It risks bringing the profession into disrepute and it must not be repeated. The required standards are set out in Good medical practice and associated guidance. In this case, paragraphs 16g of Good medical practice and paragraph 19 of Good practice in prescribing and managing medicines and devices (2013) are particularly relevant: 8
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. If you prescribe for yourself or someone close to you, you must: a b make a clear record at the same time or as soon as possible afterwards. The record should include your relationship to the patient (where relevant) and the reason it was necessary for you to prescribe. tell your own or the patient s general practitioner (and others treating you or the patient, where relevant) what medicines you have prescribed and any other information necessary for continuing care, unless (in the case of prescribing for somebody close to you) they object. Whilst these failings in themselves are not so serious as to require any restriction on your registration, it is necessary in response to issue this formal warning. 50 You will be notified of this decision, in writing, in the next two working days. 51 That concludes the determination of the Investigation Committee in this case. 9