PUBLIC RECORD. Record of Determinations Fitness to Practise Panel

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Record of Determinations – Fitness to Practise Panel

PUBLIC RECORD

Dates: 17/08/2015 – 21/08/2015

Medical Practitioner’s name: Dr Nawaraj SUBEDI

GMC reference number: 6082676

Primary medical qualification: MB BS 2002 B. P. Koirala Institute of Health Sciences

Type of case Outcome on impairment

New - Misconduct

New - Conviction / Caution XXX Not Impaired Impaired XXX Summary of outcome Suspension, 3 months. Review hearing directed Immediate order imposed

Panel:

Lay Panellist (Chair): Mr Andrew Gell

Medical Panellist: Mrs Deborah McInerny Medical Panellist: Dr Paolo De Marco Legal Assessor: Mr Iain Harris Panel Secretary: Ms D Montgomery

Attendance and Representation:

Medical Practitioner: Present and represented Medical Practitioner’s Representative: Mr Jason MacAdam, Counsel,

instructed by Cain & Cochrane Solicitors

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Record of Determinations – Fitness to Practise Panel Allegation and Findings of Fact

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

1. On 24 August 2012 you XXX, the details of which are set out at paragraph (a) of Schedule 1. Admitted and found proved

2. On 23 October 2012 you XXX, the details of which are set out at paragraph (b) of Schedule 1. Admitted and found proved

3. On 11 May 2013 you XXX, the details of which are set out at paragraph (c) of Schedule 1. Admitted and found proved

4. On 10 January 2014 at Chester Magistrates Court you were convicted of: a. one count of driving a motor vehicle after consuming so much alcohol that the proportion of it in your breath, namely 183 microgrammes of alcohol in 100 millimetres of breath, exceeded the prescribed limit. Admitted and

found proved

5. On 10 January 2014 at Chester Magistrates Court you were:

a. sentenced to 18 weeks’ imprisonment suspended for 24 months; b. made the subject of a 12 month supervision period during which you were required to undergo alcohol treatment;

c. ordered to carry out 100 hours unpaid work within the next 12 months;

d. disqualified from holding or obtaining a driving licence for 36 months, to be reduced by 9 months if by 17 January 2016 you satisfactorily completed a course approved by the secretary of state. Admitted and found proved

in its entirety

6. XXX 7. XXX

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 the hearing as the matters under consideration were deemed confidential.

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Dr Subedi:

1. This determination will be read in private XXX. However, as this case also relates to your alleged misconduct and your conviction, a redacted version will be published at the close of the hearing XXX.

2. At the outset of these proceedings, Mr MacAdam admitted the entirety of the allegation on your behalf, and the Panel announced that the allegation was admitted and found proved.

3. The admitted facts of your case are as follows.

4. On 24 August 2012 you XXX, the details of which are set out at paragraph (a) of Schedule 1.

5. On 23 October 2012 you XXX, the details of which are set out at paragraph (b) of Schedule 1.

6. On 11 May 2013 you XXX, the details of which are set out at paragraph (c) of Schedule 1.

7. On 10 January 2014 at Chester Magistrates Court you were convicted of one count of driving a motor vehicle after consuming so much alcohol that the proportion of it in your breath, namely 183 microgrammes of alcohol in 100 millimetres of

breath, exceeded the prescribed limit.

8. On 10 January 2014 at Chester Magistrates Court you were sentenced to 18 weeks’ imprisonment suspended for 24 months; made the subject of a 12 month supervision period during which you were required to undergo alcohol treatment; ordered to carry out 100 hours unpaid work within the next 12 months; disqualified from holding or obtaining a driving licence for 36 months, to be reduced by 9

months if by 17 January 2016 you satisfactorily completed a course approved by the secretary of state.

9. XXX 10. XXX

Submissions on behalf of the GMC

11. Mr Atherton submitted that when determining whether your fitness to practise is impaired the Panel should start by considering how far you have departed from the GMC’s guidance - Good Medical Practice (GMP) - which sets out the duties and responsibilities of a registered medical practitioner.

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12. In respect of your misconduct, which the GMC categorised as your XXX, Mr Atherton stated that the GMC is neutral. He submitted that it is for the Panel to determine whether your XXX reaches the level of misconduct. He referred the Panel to the case examiner’s conclusion that ‘…in isolation, these matters would be unlikely to result in action being taken on Dr Subedi’s registration status…However, as the XXX incidents also relate to Dr Subedi’s XXX, these matters should be heard

alongside the criminal conviction in order to consider his fitness to practise ‘in the round’…’.

13. With regard to your conviction, Mr Atherton referred the Panel to paragraph 65 of GMP (2013 edition) which states:

‘65 You must make sure that your conduct at all times justifies your patients’ trust in you and the public’s trust in the profession.’

14. Mr Atherton submitted that as a medical practitioner working at Consultant level within the NHS the circumstances of your conviction are serious and reflect poorly on the profession. XXX He stated that you have demonstrated limited understanding of the danger that you presented to the public and that your witness statement was very ‘self-focused’. He submitted that your conduct fell far short of what the public expect and that confidence in the profession would be undermined if your fitness to practise was not found to be impaired by reason of your conviction.

15. XXX 16. XXX

Submissions on your behalf

17. In respect of your misconduct, Mr MacAdam acknowledged on your behalf that XXX was wrong and amounted to misconduct. However, he submitted that it was not misconduct sufficiently serious to impair your fitness to practise.

18. Mr MacAdam stated that you acted out of ignorance, although he accepted that you should have made yourself familiar with the relevant standards. He reminded the Panel that you made no attempt to hide your identity at the time of obtaining XXX and he stated that this is evidence of your ignorance of wrong-doing. He further reminded the Panel that the XXX and that after you became aware of your error you ‘normalised the position’ and there was subsequently no repetition. Mr MacAdam submitted that the fact that you self-reported your XXX to the GMC demonstrates your insight and openness and transparency with your regulator. XXX

19. In respect of your conviction, Mr MacAdam submitted that you concede that your fitness to practise is impaired. He stated that you accept that the alcohol reading was high and that the circumstances that led to your conviction were serious. He stated that you accept that your conviction engages all three aspects of the public

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interest and that you were ‘extremely grateful’ to the member of public who intervened and stopped you from continuing to drive your car.

20. XXX

The Panel’s decision on Impairment

21. The Panel has now considered whether your fitness to practise is impaired by reason of your misconduct and/or your conviction XXX.

22. In deciding whether your fitness to practise is impaired, the Panel has exercised its own judgement. It has borne in mind its responsibility to protect the public interest and in particular, to protect patients, to maintain public confidence in the profession, and to declare and uphold the proper standards of conduct and behaviour.

23. The Panel has taken into account all the evidence before it, both oral and documentary. This included, but was not limited to, your oral evidence XXX.

24. The Panel found you to be a credible witness who was open and forthcoming in your evidence. However, the Panel did not consider that you gave a credible or adequate explanation of the events leading to your being stopped on 16 December 2013.

25. The Panel has considered the submissions of Mr Atherton, Counsel, on behalf of the GMC and those of Mr MacAdam, Counsel, on your behalf.

Misconduct

26. The Panel first considered whether the admitted facts in respect of your XXX, both individually and cumulatively, amount to misconduct. In doing so it had regard to the 2006 and 2013 editions of GMP, and in particular, paragraphs 77 (2006 edition) and 16 (2013 edition) which state:

’77 You should be registered with a general practitioner outside your family to ensure that you have access to independent and objective medical care. You should not treat yourself.

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.’

27. In your witness statement and oral evidence to the Panel you stated that at the time of XXX you were not aware that it was against GMC guidance. Whilst the Panel accepted your explanation, it noted that both editions of GMP highlight that it is a

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doctor’s responsibility to be familiar with and follow the guidance therein. It is clear that your conduct in XXX contravenes this guidance and fell short of what should have been expected. Accordingly, the Panel was satisfied that your conduct in XXX amounted to misconduct. The Panel then went on to consider whether your

misconduct was serious enough to require it to consider whether your fitness to practise is currently impaired.

28. The Panel has already stated that it accepts that your misconduct arose out of your ignorance of the guidance. This is supported by the evidence before it. XXX. It is clear that you made no attempt to hide the fact that you were XXX and that the XXX. The Panel had regard to the witness statement of Mr C, Lead Pharmacist, in which he states that on 11 May 2013, he had a conversation with you in which he highlighted that XXX.

29. The Panel also took into account the fact that you self-reported to the GMC after being informed by your Trust that your actions were not in line with GMC guidance. 30. Having considered all the evidence before it, the Panel concluded that your misconduct did not amount to serious misconduct. Accordingly, the issue of impairment did not arise at this stage.

Conviction

31. The Panel next considered whether your fitness to practise is impaired by reason of your conviction.

32. The Panel was informed that about 10.15 on 16 December 2013 you were driving home to Leeds when another driver witnessed you driving your vehicle in a ‘zig zag fashion between the two lanes of the dual carriageway’. The other driver, believing that you posed a real threat to other road users, approached your car when you were both stopped at traffic lights and tried to remove you from your vehicle. When you refused to cooperate he removed your keys from the ignition of your car and, with assistance from other drivers and a passing officer of the British Transport Police, detained you until police officers from the Cheshire Constabulary arrived. The Panel heard that you were highly intoxicated and unable to walk unaided. You were also unable to converse in a coherent manner and showed no understanding of the breathalyser procedure. When breathalysed, your alcohol level in breath, at over five times the legal limit, was the highest reading that the

Cheshire Police Force had ever seen. When your car was subsequently recovered by police, it contained an empty 70 cl bottle of vodka, a half empty 50 cl bottle of vodka and a receipt from a service station timed at 07.15 that morning for the 50 cl bottle of vodka and some fuel.

33. In a statement presented to an Interim Orders Panel, you stated that you were ‘extremely remorseful’ for your motoring offence and explained the factors that led to the incident. You stated that you had taken up a fellowship in Oswestry to acquire

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extra skills in procedures not routinely done in Leeds. However, you found that opportunities to gain these skills were limited, even in Oswestry, and that this led to a ‘deep professional dissatisfaction XXX which was compounded by being away from [your] family and close friends’. You found yourself regularly turning to drink to calm yourself in the evening after work. XXX You stated that you did not want ‘outside influences’ to affect your ability to practice and you requested two weeks off work XXX. However, subsequently you saw having to take time off work as a sign of your failure which led to a ‘deep overwhelming feeling of abject sadness and irrational thoughts and behaviour’. You stated that you had never before driven after drinking, but that on that particular morning you had such a ‘sense of doom’ that you

ingested a significant amount of alcohol before setting off from Oswestry to Leeds. You accepted that you made a ‘grave mistake’.

34. In reaching its decision on impairment the Panel had regard to paragraph 65 of GMP to which it was referred. The Panel is of the opinion that any conviction is serious, but that a conviction for driving whilst under the influence of alcohol in the circumstances in which you did is particularly serious for a member of the medical profession.

35. The Panel had regard to the pre-sentence report in which you took full responsibility for your actions and apologised ‘unreservedly’ to the Court for your behaviour. You appear to have some insight into the seriousness of your decision to drive whilst intoxicated in that it was reported that you were aware that your actions could have caused injury or even death to others and that you were ashamed of your behaviour. You have also acknowledged that your conviction brought the profession into disrepute. However, the Panel is of the opinion that, notwithstanding the pre-sentence report, your insight is not yet complete and that there is scope for you to develop deeper insight into the risk that you posed to members of the public. 36. In all the circumstances, the Panel concluded that your fitness to practise is impaired by reason of your conviction. You have also conceded that your fitness to practise is impaired as a result.

XXX

Determination on Sanction

Dr Subedi:

1. Having determined that your fitness to practise is impaired by reason of your conviction XXX, the Panel has now considered what action, if any, it should take with regard to your registration.

2. The panel has given careful consideration to all the evidence adduced in this case, both oral and documentary. It has also considered Mr Atherton’s submissions on behalf of the General Medical Council (GMC) and those made by you.

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3. Mr Atherton referred the Panel to the GMC’s Sanctions guidance (August 2015) (SG) and submitted that the appropriate sanction in your case is one of at least conditional registration. Mr Atherton acknowledged that you have taken positive and useful steps since your conviction by way of remediation XXX and that any ongoing risk to patient safety could be managed by conditional registration. However, he submitted that, in the light of your conviction, the Panel should consider whether a period of suspension would better serve the public interest and the maintenance of public confidence in the profession.

4. Mr MacAdam submitted that the appropriate sanction in your case is one of

conditional registration and that a period of conditional registration would best serve the public interest in allowing you to take your remediation forward.

5. XXX 6. XXX

7. In respect of your conviction, Mr MacAdam submitted that you fully appreciate the seriousness of your conviction. He referred the Panel to the pre-sentence report which records that you took full responsibility for your mistake and he stated that you have remediated your difficulties and have completed all aspects of your sentence satisfactorily. He reminded the Panel that you have benefitted other clinicians in your home country facing similar difficulties by way of your charitable work and he stated that this demonstrates a willingness and desire to help others who are similarly afflicted. Mr MacAdam submitted that you are confident that you can satisfy a future Panel that you have full insight.

8. Mr MacAdam accepted that a period of suspension would send a message about what is regarded as behaviour unbefitting a registered doctor, but he stated that there are unique features in your case. XXX Finally, Mr MacAdam submitted that a period of suspension would not reflect your openness, transparency and

engagement with your regulator.

The Panel’s decision

9. The decision as to the appropriate sanction to impose, if any, is a matter for this panel exercising its own judgement.

10. In reaching its decision, the Panel has taken account of the SG. It has borne in mind that although sanctions are not imposed to punish or discipline doctors, they may have a punitive effect.

11. Throughout its deliberations, the Panel has had regard to the principle of proportionality and has weighed the interests of the public with your interests. The public interest includes, amongst other things, the protection of patients, the

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maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour.

12. The Panel considered each sanction in ascending order of seriousness, starting with the least restrictive and moving upwards as necessary. In its

consideration, the Panel had regard to all of the mitigating and aggravating factors. 13. The Panel first considered whether it would be sufficient to conclude your case with no action. It determined that taking no action on your registration would not be sufficient to address the public interest aspects of your case due the

seriousness of your conviction XXX.

14. The Panel then considered whether it would be sufficient to impose conditions on your registration. It has borne in mind that any conditions imposed should be appropriate, proportionate, workable and measurable. The SG, at paragraphs 62, 63 and 65 states:

’62 Conditions might be most appropriate in cases: XXX

63 Conditions are likely to be appropriate and workable where: a the doctor has insight into the concerns…

b a period of retraining and/or supervision is likely to be the most appropriate way of addressing any concerns

c the doctor has the potential to respond positively to remediation, or retraining or to their work being supervised.

65 Depending on the type of case…the panel needs to be satisfied that the doctor meets most or all of the following criteria (this list is not

exhaustive):

a no evidence of harmful deep-seated personality or attitudinal problems…

XXX

15. The Panel noted that you XXX have been compliant with conditional registration. XXX However, the Panel noted that XXX there is also a conviction for a serious criminal offence.

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’72 Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and public about what is regarded as behaviour unbefitting a registered doctor. Suspension from the register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the period of suspension, although this is not its intention.

73 Suspension will be an appropriate response to misconduct which is sufficiently serious that action is required in order to protect patients and maintain public confidence in the profession…

80 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate:

a a serious breach of Good medical practice where the misconduct is not fundamentally incompatible with continued registration…but which is so serious that any sanction lower than a suspension would not be sufficient to serve the need to protect the public or maintain confidence in doctors…’

17. XXX However, you committed a serious driving offence that put you and members of the public at risk and led to a custodial sentence. The Panel is of the opinion that the sanction imposed should reflect the seriousness of your conviction and it concluded that any sanction lower than a suspension would not be sufficient to serve the need to protect the public or maintain confidence in doctors.

18. Having considered all the evidence, the Panel concluded that the public interest demands a three month period of suspension. The Panel considered that this was the minimum period required to mark the seriousness of your conviction whilst ensuring that you do not become deskilled during the period of your suspension. The Panel recognises that there is a public interest in maintaining your skills. 19. The Panel went on to consider whether it would be appropriate to direct a review hearing in your case. It has borne in mind that no doctor should be allowed to resume unrestricted practice following a period of suspension unless the panel considers that he/she is safe to do so. XXX, the Panel determined that it is necessary to direct a review in this instance.

20. Shortly before the end of the period of suspension, your case will be reviewed by a Fitness to Practise Panel. A letter will be sent to you about the arrangements for the review hearing. At this next hearing, the Panel reviewing your case will be assisted by the following (please note that the following information is for guidance only):

 A reflective piece to demonstrate further development of your insight into the risk that you posed to members of the public when driving whilst intoxicated

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 XXX

 Any other information that you feel will assist a Review Panel, including testimonials from persons of good standing and evidence of any CPD undertaken.

21. The effect of the foregoing direction is that, unless you exercise your right of appeal, your registration will be suspended 28 days from the date on which written notice of this decision is deemed to have been served upon you.

Determination on Immediate Order Dr Subedi:

1. The interim order of conditions imposed on your registration is hereby revoked. 2. Having determined that your registration be suspended, the Panel has now considered in accordance with Section 38 of the Medical Act 1983, as amended, whether to impose an immediate order of suspension on your registration.

3. Mr Atherton, Counsel, on behalf of the General Medical Council (GMC) submitted that it is necessary, in the public interest and in your own interests to impose an order of immediate suspension on your registration.

4. Mr MacAdam, Counsel, on your behalf, submitted that it is not necessary to impose an immediate order of suspension given the Panel’s determination that the substantive order of suspension was imposed on the basis that it was required to mark the seriousness of your conviction. He submitted that, as there is no

suggestion that you pose a risk to patients, it is not necessary to impose the order of suspension with immediate effect.

5. For the same reasons as in respect of the substantive order, the Panel has

determined that it is necessary to impose an immediate order of suspension on your registration.

6. This means that your registration will be suspended with effect from today. 7. The substantive direction for suspension, as already announced, will take effect 28 days from the date upon which written notice of this decision is deemed to have been served upon you, 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

substantive direction takes effect, or until any appeal is determined. 8. That concludes this case.

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Record of Determinations – Fitness to Practise Panel Confirmed

Date 21 August 2015 Mr Andrew Gell, Chair

Schedule 1