Fitness to Practise Panel Determination

The following case was heard by a Fitness to Practise Panel. It is presented here to
give an example of one possible outcome of breaching this principle. It is not
intended to give a clear threshold between acceptable and unacceptable behaviour.
Each case which comes before a Fitness to Practise Panel is judged on its own
merits and assessed on the particular circumstances of the case.

Summary:

The doctor provided a reference for a colleague which omitted information relating to
the colleague’s conduct. As a member of a regulatory body which subsequently
investigated the conduct of this same colleague, the doctor failed to disclose,
contrary to guidance stating otherwise, that he knew the colleague in question.

Relevant paragraphs of Good Medical Practice

This case relates to the Teaching and training, appraising and assessing section of
GMP, specifically paragraphs 18 and 19.

This case relates to the Probity section of GMP, specifically paragraph 56 on Being
honest and trustworthy, and paragraphs 63 and 65 on Writing reports and CVs,
giving evidence and signing documents.

Determination on impaired fitness to practise

“Professor X: At the start of these proceedings the factual allegations, as set out in
the General Medical Council's (GMC's) Notice of Hearing dated [date removed],
were amended. Through your Counsel Mr Y, you admitted a number of the factual
allegations (1 to 12 inclusive and 14a, without the stem). The Panel has recorded
that these allegations are admitted and found proved.

The Panel has considered all the information presented to it including the
submissions by Mr Z for the GMC, and by Mr Y. It has also noted and accepted the

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advice of the Legal Assessor. It first went on to determine whether or not the
allegations not admitted by you had been proved.

You have admitted that at the material times you were a registered practitioner
employed as Professor of XXX at the University of XXX. You were also a Member of
the YYY and a Medical Screener from [date removed] appointed by the YYY under
paragraph 4(2) of [the rules].

You have admitted that in or about [date removed] you became Chairman of the
XXX Standing Specialist Advisory Group of the XXX Regional Health Authority, one
of whose members was Mr A. In or about [date removed] you were requested by Mr
A to provide him with an oral reference in connection with his application to XXX
Royal Infirmary for the post of Locum Consultant in XXX.

You have admitted that in the course of your conversation with Mr A you learnt that
he had been cautioned by the Police in connection with a matter which had taken
place in a public toilet. Subsequently you spoke on the telephone to Professor B, the
then Clinical Director of XXX at XXX Royal Infirmary and provided an oral reference
for Mr A. In [date removed] XXX Royal Infirmary appointed Mr A to the post of Locum
Consultant in XXX, a position which he occupied until [date removed].

You have admitted that on [date removed] you provided a written reference for Mr A
in relation to his application to XXX Hospital, XXX, for the post of Locum Consultant
in XXX. The written reference included the following statement

“His fellow clinicians at XXX speak well of his clinical abilities”

In [date removed] XXX Hospital, XXX, appointed Mr A to the post of Locum

Consultant in XXX.

You have admitted that on a date between [date removed] and [date removed] you
received a case file in your role as a XXX Screener relating to a complaint against Mr
A by Mr C of the XXX Police Television Unit. You did not bring to the attention of the
Registrar that you had some previous knowledge of and acquaintance with Mr A.
You considered the case against Mr A and determined that the case could not
proceed.

You also admitted that your written reference to XXX Hospital, XXX made no
mention of the matters set out in allegation 4. The Panel found the written reference
to XXX Hospital, XXX, fell seriously below those expected of a registered medical
practitioner and that this omission had the effect of presenting Mr A in a more
favourable personal light than was justified.

The Panel has found that with regard to your actions as a XXX Screener as set out
in allegations 11 and 12 you knew or should have known that you had a conflict of
interest in this matter as a result of your previous knowledge of and acquaintance
with Mr A. You knew or should have known that it was your duty to inform the
Registrar of this conflict of interest. By failing to inform the Registrar of this conflict of
interest and by proceeding to consider and determine the matter, you acted in a way
which was inappropriate, had the potential of compromising the fairness and

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transparency of YYY’s XXX procedures, and was likely to bring the medical
profession into disrepute.

This case has comprised three areas of complaint. The first area is in relation to an
oral reference that you provided for Mr A for a post at XXX Royal Infirmary, the
second concerns a written reference that you provided for Mr A for a post at XXX
Hospital, XXX and the third, your role as a XXX screener.

The Panel has heard that at the relevant time you were employed as Professor of
XXX at the University of XXX and Chairman of the XXX Standing Specialist Advisory
Group of the XXX Regional Health Authority, one of whose members was Mr A. You
described Mr A as an enthusiastic and active participant on this group. As these
meetings were held four times a year, you had come across Mr A approximately 12
times. In [date removed] he made an appointment to come and speak to you at your
office in XXX. At this meeting he conveyed information to you relating to his
unhappiness in his current post and of some personal difficulties. Mr A also informed
you at this meeting of an incident which had occurred in a public toilet which had
resulted in his receiving a police caution for a breach of the peace. You agreed to
provide him with a reference if he was to apply for a different position.

The first area of complaint is the allegation that you were asked to provide an oral
reference by XXX Royal Infirmary. Although you did not specifically mention the
incident in the public toilet in XXX (allegation 4), you did make mention of
embarrassing personal circumstances involving Mr A and because of this the Panel
has not found proved that on this occasion your actions fell seriously below those
expected of a registered medical practitioner.

The second area of complaint is the allegation that, by letter dated [date removed],
you provided a written reference for the post of locum Consultant in XXX at XXX
Hospital, XXX in which you made no mention of your knowledge of the incident for
which Mr A had received a police caution.

The Panel notes that Mr A was offered the appointment by letter dated [date
removed] to start on [date removed]. Your reference is dated [date removed]. Your
reference was unequivocal in your support for him in that you stated that “I have no
reservations at al about his suitability for the post……” . The Panel is concerned that
despite your knowledge of information adverse to Mr A, you chose to omit this from
the reference. The Panel found that this omission presented Mr A in a more
favourable personal light than was justified.

The Panel has considered the General Medical Council's guidance ‘Good Medical
Practice' (1995), which states under the heading ‘Signing Certificates and other
documents' Para 41 ” …… Similarly, when providing references for colleagues, your
comments must be honest and you must be able to back them up.”

It was not suggested by Counsel for the GMC that you were dishonest in omitting to
declare the full details of Mr A's caution. It was however, implicit that in providing a
reference all relevant and material information should be included. You had agreed
to be a referee for Mr A and therefore you had a responsibility to give a full and frank
reference when asked to do so.

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The third area of complaint is the allegation in relation to your role as a XXX
screener. The Panel notes that in [date removed] you received a case file relating to
a complaint against Mr A. The complaint had already been considered by Dr C, an
experienced XXX screener who had decided that the complaint should go no further.
However, as Dr C had incorrectly completed the screening decision form, and had
subsequently retired from his duties as a screener, another medical screener was
required to complete the paperwork correctly in order for the complaint to be closed.
You were approached to do this by a memorandum dated [date removed]. The Panel
did not accept that your role in this matter was purely administrative. Your annotation
dated [date removed] on this memorandum shows that you reviewed the case. In
addition the screening decision form was signed and dated by you in your capacity
as XXX screener.

You accepted in evidence that neither did you draw to the attention of the Registrar
your knowledge of Mr A over a period of time nor declare a possible conflict of
interest.

With regards to the question of whether there was a conflict of interest, the Panel's
attention has been drawn to the YYY’s XXX Handbook, which was in place at that
time and of which you were aware. Page 12 of the handbook states:-

“If a screener or member of staff has, or considers there may be, a conflict of interest
which may affect, or may appear to affect, his or her judgement in dealing with a
complaint, it is essential that a written record of the circumstances, and the nature of
the conflict or possible conflict, is made on the case papers. A conflict of interest will
arise if:

• The screener or staff member has, or has had a personal or close professional
relationship with the complainant or doctor.

• The screener or staff member has been involved in the matters which are the
subject of the complaint

• There is any other factor the presence of which might reasonably cast doubt on the
fairness and impartiality of YYY’s handling of the case

Where a conflict, or the appearance of a conflict arises, the screener or staff member
concerned must take no further part in the YYY’s consideration of the case.”

Furthermore, the Panel notes the footnote at page 12 which states : “A conflict of
interest would not necessarily arise merely because the screener or staff member
happened to have heard of one of the parties to the complaint, or had had some
distant professional relationship with him or her. Even in such cases, however the
screener or staff member must declare an interest and ask the office or another
screener for advice about whether to continue to be involved in the case.”

The Panel consider that you did not abide by this clear guidance, which is
mandatory. You knew Mr A, you knew adverse information about him, you had
provided references for him and by that time you were aware that he was at the

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centre of highly publicised conduct proceedings of the most serious nature.
Therefore, you had a clear conflict of interest and should have declared it. The Panel
consider that you made a serious error of judgement by not doing this.

The Panel was advised that you have during the course of these proceedings
tendered your resignation as a member of the YYY. It is submitted on your behalf
that the public can have confidence that there will be no repetition of the errors of
judgement, which have been the subject of this hearing.

In considering the matters before it, the Panel has sought to disregard the notoriety
surrounding Mr A, who was subsequently found guilty of serious professional
misconduct by the GMC's Professional Conduct Committee in [date removed] and
erased from the medical register.

The Panel is concerned about the serious nature of the allegations that have been
found proved. Doctors occupy a position of privilege and trust in society and are
expected to act with integrity and to uphold proper standards of conduct. The Panel
is in no doubt that the misconduct which has been found proved is serious.

The Panel has had regard to the advice provided in the GMC's Indicative Sanctions
Guidance. Paragraph 11 states that ‘Neither the Act nor the Rules define what is
meant by impaired fitness to practise but for the reasons explained below, it is clear
that the GMC's role in relation to fitness to practise is to consider concerns which are
so serious as to raise the question whether the doctor concerned should continue to
practise either with restrictions on registration or at all'. The Panel took into account
paragraphs 55 – 58 in section 3, which give further guidance on the meaning of
fitness to practise.

In the light of all the allegations found proved, the Panel has found your fitness to
practise is impaired pursuant to Section 35C (2) (c) of The Medical Act 1983 as
amended, by reason of the misconduct.