Record of Determinations –
Medical Practitioners Tribunal
PUBLIC RECORD
Dates: 22/08/2016 – 13/09/2016
Medical Practitioner’s name:
Mr Peter HALE
GMC reference number:
2936147
Primary medical qualification:
MB BS 1984 University of London
Type of case
New - Misconduct
Outcome on impairment
Not Impaired
Summary of outcome
No warning
Tribunal:
Lay Tribunal Member (Chair)
Mr Sean Ell
Lay Tribunal Member:
Mrs Jenny Portway
Medical Tribunal Member:
Dr Vivek Sen
Legal Assessor:
Mr Alistair Forrest
Tribunal Clerk:
Ms Jennifer Hatch
Attendance and Representation:
Medical Practitioner:
Present and represented
Medical Practitioner’s Representative:
Mr Mark Sutton, QC, instructed by the
MDU
Mr Craig Sephton, QC
GMC Representative:
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Allegation and Findings of Fact
That being registered under the Medical Act 1983 (as amended):
1.
Between 1 June 1995 and 8 January 2015, you were employed as a Consultant
Surgeon at Brighton and Sussex University Hospitals Trust (’the Trust’).
Admitted and found proved
Incident on 21 September 2011
2.
On 21 September 2011, you conducted a ward round at the Royal Sussex
County Hospital (’the Hospital’). Admitted and found proved
3.
During a review of a patient, you failed to show respect for Dr A in that you:
a.
said to Dr A, “What age are you?” or words to that effect; Admitted and
found proved
b.
said to Dr A, “You have enough white hair to make this decision” or words
to that effect; Admitted and found proved
c.
pointed towards Dr A's head with your finger; Admitted and found
proved
d.
touched Dr A’s head with your finger. Found not proved
Incident on 25 October 2013
4.
On 25 October 2013 during a meeting with Dr A about his sick leave you:
a.
said to Dr A words to the effect of:
i.
ii.
“What age are you now?”; Admitted and found proved
”You’re getting older, you should be taking weekends off”; Found
not proved
b.
told Dr A that he should not do any more locum shifts for three months.
Found proved
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5.
Your conduct as outlined at paragraphs 3 and 4 above was unfairly
discriminatory against Dr A. Found not proved
Incident on 10 August 2013
6.
On 10 August 2013, you attended the main theatre at the Hospital to perform
surgery. Admitted and found proved
7.
Upon discovering that your surgical list had been delayed, you failed to show
respect for your colleagues in that you:
a.
behaved in an intimidating manner towards Ms B;
b.
shouted at Ms B;
c.
repeatedly used vulgar expletives in your language to Ms B;
d.
shouted at Dr C;
e.
intimidated Dr C;
f.
made threats to Dr C by saying words to the effect of:
i. ”I will inform your seniors”;
ii. ”I will have you at a disciplinary”;
g.
made Dr C cry;
h.
said “my patients are the sickest in this hospital and my patients’
operations are always delayed” or words to that effect. Admitted in its
entirety and found proved
Meeting on 13 December 2013
8.
On 13 December 2013, you attended a meeting at the Hospital (‘the Meeting’).
Admitted and found proved
9.
After some of your colleagues had left the Meeting, you failed to show respect
for colleagues of an ethnic minority background (‘the colleagues’) in that you:
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a.
offered to place a bet that one of them, having committed to work a
particular shift, would fly to Nigeria and that there would be a problem
with the plane coming back or words to that effect; Found not proved
b.
referred to them as “a highly egocentric group”; Found not proved
c.
said “In this – some of these subcontinent elements what you end up with
is long term resentments and grievances and all sorts of stuff. They are
their own worst enemies” or words to that effect; Found proved
d.
said “They don’t know what they want”; Found not proved
e.
said “They mix and match in their heads differently. They’re not clear
thinkers”; Found not proved
f.
said that one of them “needs a good slap”; Found proved
g.
referred to them as “an unbelievable group of people. Vile actually”.
Found proved
10. Your conduct as outlined at paragraph 9 above was:
a.
motivated by racial prejudice; Found not proved
b.
unfairly discriminatory against the colleagues referred to in paragraph 9.
Found not proved
Incident on 5 February 2014
11. On 5 February 2014, you attended the polytrauma theatre at the Hospital with
several junior colleagues to perform surgery. Found proved, as amended
12. Upon discovering that the polytrauma theatre was in use you failed to show
respect for Ms D in that you:
a.
banged your fist on Ms D's desk; Found not proved
b.
shouted at Ms D; Found proved
c.
said to Ms D:
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i. “You don’t care that this hospital is going to shit.” or words to that
effect; Found not proved
ii. “If we don't do these, you are going to kill my fucking patients and I
am going to kill you” or words to that effect; Found not proved
d.
were aggressive towards Ms D. Found proved
And that by reason of the matters set out above your fitness to practise is impaired
because of your misconduct.
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,
XXX.
Determination on disclosure of documents - 23/08/2016
Mr Hale:
1.
Mr Sutton, on your behalf, made an application on the basis of Rule 16 of the
Fitness to Practise Rules 2004 (‘the Rules’), for the Tribunal to use its case management
powers to direct the GMC to disclose the following documents to the defence:


Employment Tribunal statements of case (including Claim Form(s), together with
any further particulars thereof, and Grounds of Response) in the conjoined
proceedings brought by the four doctors who referred you to the General Medical
Council (GMC) against Brighton University Hospitals NHS Trust (‘the Trust’).
Disciplinary decision letters (including any related appeal determinations) issued by
the Trust in relation to the four doctors who referred you to the GMC.
2.
Mr Sutton submitted that the complaints made against you need to be considered
within their factual setting, and that surrounding circumstances including conditions in
the workplace preceding the meeting on 13 December 2013 are highly relevant. He
submitted that the requested documents should comfortably be obtained within a few
days, but if there was a delay, this is not a compelling basis for declining the application
if it was considered otherwise appropriate to allow it. He submitted that disclosure of
the documents was important to enable the Tribunal to consider the complaints in
context.
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3.
Mr Sephton, on behalf of the GMC, submitted that the GMC are not in possession
of the requested documents. The documents are in the possession of the Trust and the
four doctors who referred you to the GMC, who will be called as witnesses at this
hearing. He stated that the GMC could request the document from the Trust, but that if
they were not disclosed within 14 days they would need to seek an order of the relevant
court requiring the document to be produced, which would cause these proceedings to
be delayed. He noted that the GMC had already made an attempt to request the
documents, but the Trust had refused to provide them due to confidentiality matters.
4.
Mr Sephton drew the Tribunal’s attention to Rule 34(1) of the Rules, in which it
states that evidence must be fair and relevant. He submitted that the allegation in this
case relates to five incidents, and that the application for disclosure is being made only
in relation to the meeting on 13 December 2013. He submitted that the documents are
not relevant to the issues in this hearing, and that they are confidential, as they relate
to Employment Tribunals for the four doctors who referred you to the GMC. He
submitted that the interests of confidentiality would outweigh any potential relevance of
the documents.
5.
Mr Sephton submitted that Mr Sutton has the right to cross-examine witnesses
called on behalf of the GMC, and that there are further witnesses other than those who
referred you to the GMC, who will be able to give evidence as to their perception. He
therefore concluded that the application to disclose evidence should be dismissed.
Tribunal Decision
6.
In considering Mr Sutton’s application, the Tribunal has borne in mind the
submissions made by both parties. The Tribunal heard and accepted the advice of
the Legal Assessor. This advice is a matter of record, and the Tribunal has not
rehearsed it in full in this determination. It has exercised its own judgement in
reaching its decision.
7.
The Tribunal noted the wording of Rule 16(6)(a)(i), which states:
“(6) Directions issued by the Case Manager may include, but are not limited
to, such of the following as he considers appropriate having regard to the
nature of the allegation, any representations made by the parties and all
other material factors-
(a) that each party disclose to the other in advance of the hearing—
(i) any documentary evidence in their possession or power
relating to the allegation,”
8.
It is not in dispute that the requested documents are not in the possession of
the GMC, but are in the possession of the Trust and the four doctors who referred
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you to the GMC. The Tribunal considered whether the documentary evidence was in
the power of the GMC. It noted that if the GMC were to make a further request to
the Trust to obtain the documents and the Trust once again refused to supply them,
the GMC would have to seek an order of the relevant court requiring the document
to be produced. The Tribunal considered that the documents were not in the GMC’s
power if a court order (which may not be granted) may be required in order to
obtain the documents. Furthermore, it noted that both parties have had the
opportunity by power of subpoena to compel the production of evidence, but have
not taken this opportunity.
9.
The Tribunal therefore determined to dismiss Mr Sutton’s application for the
GMC to disclose the documents listed above.
Determination on Facts - 09/09/2016
Mr Hale:
Background to the Case
1.
You obtained your primary medical qualification from the University of London
in 1984 and completed your specialist training in Surgery in 1995. You began
working at Brighton and Sussex University Hospitals NHS Trust (‘the Trust’) as a
Consultant Surgeon with an interest in Gastroenterology in June 1995.
2.
It is alleged that, between 2011 and 2014, whilst working at the Trust, you
failed to show respect for several colleagues in your interactions with them, and that
some of your conduct was unfairly discriminatory. It is also alleged that your conduct
on one occasion was motivated by racial prejudice, and that on another occasion
you were aggressive towards a colleague.
3.
You were referred to the GMC in July 2014 by four doctors; Mr E, Dr F, Mr G
and Dr A (‘the complainants’). The Trust instructed Vista Investigation Services to
carry out an independent investigation into your conduct under the Disciplinary
Procedure for Medical Staff. A report was compiled by Mr H, dated 9 September
2014.
4.
A further investigation was commissioned into your alleged behaviour in
relation to an incident on 5 February 2014. A report was compiled by Mr I in relation
to this, dated 26 October 2014.
Admissions
5.
At the outset of the proceedings, Mr Sutton made admissions to the following
paragraphs and sub-paragraphs of the allegation on your behalf, in accordance with
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Rule 17(2)(d) of the General Medical Council (‘GMC’) (Fitness to Practise) Rules
2004, as amended (‘the Rules’):
Paragraph 1
Between 1 June 1995 and 8 January 2015, you were employed as a
Consultant Surgeon at Brighton and Sussex University Hospitals Trust (’the
Trust’).
Paragraph 2
On 21 September 2011, you conducted a ward round at the Royal Sussex
County Hospital (’the Hospital’).
Paragraph 3
During a review of a patient, you failed to show respect for Dr A in that you:
a. said to Dr A, “What age are you?” or words to that effect;
b. said to Dr A, “You have enough white hair to make this decision” or
words to that effect;
c. pointed towards Dr A's head with your finger;
Paragraph 4
On 25 October 2013 during a meeting with Dr A about his sick leave you:
e. said to Dr A words to the effect of:
i. “What age are you now?”;
Paragraph 6
On 10 August 2013, you attended the main theatre at the Hospital to perform
surgery.
Paragraph 7
Upon discovering that your surgical list had been delayed, you failed to show
respect for your colleagues in that you:
a. behaved in an intimidating manner towards Ms B;
f.
shouted at Ms B;
g. repeatedly used vulgar expletives in your language to Ms B;
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h. shouted at Dr C;
i.
intimidated Dr C;
j.
made threats to Dr C by saying words to the effect of:
i. ”I will inform your seniors”;
ii. ”I will have you at a disciplinary”;
g. made Dr C cry;
h. said “my patients are the sickest in this hospital and my patients’
operations are always delayed” or words to that effect.
Paragraph 8
On 13 December 2013, you attended a meeting at the Hospital (‘the
Meeting’).
6.
The Tribunal therefore announced these paragraphs and sub-paragraphs of
the allegation as admitted and found proved, in accordance with Rule 17(2)(e) of
the Rules.
Witnesses and Evidence
7.
In reaching its determination on the remaining facts of this case, the Tribunal
has taken into account the documentary evidence provided. This included, but was
not limited to:








Trust investigation report by Dr J, dated November 2013;
Transcript of the meeting which took place on 13 December 2013;
Various grievance and referral letters and emails;
Independent investigation report by Mr H of Vista Investigation Services,
dated 9 September 2014;
Trust investigation report by Mr I, dated 26 October 2014;
XXX;
Employment Tribunal judgment relating to the complainants, dated 1
December 2015;
signed witness statements from the following people on behalf of the GMC:
o Mr L, Deputy Medical Director of the Trust;
o Dr J, Consultant Radiologist and author of case report dated
November 2013;
o Mr G, employed as a Clinical Fellow at the Trust at the material time,
one of the complainants;
o Ms M, Theatre Administrator at the Trust;
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
o Ms N, Senior Staff Nurse of Theatres at the Royal Sussex Hospital;
o Mr E, Clinical Fellow at the Trust at the material time, one of the
complainants;
o Dr C, Dentist at the Trust at the material time;
o Dr F, Clinical Fellow at the Trust at the material time, one of the
complainants;
o Mr H, Director of Litigation Services of Vista Employer Services
Limited (Vista);
o Mr A, Clinical Fellow at the Trust at the material time, one of the
complainants;
o Mr I, Consultant Obstetrician and Gynaecologist and Clinical Director
of Women’s Directorate at the Trust, author of report dated 26
October 2014;
o Ms B, Senior Theatre Practitioner at the Trust;
o Ms O, Service Manager for Digestive Diseases at the Trust at the
material time.
signed witness statements from the following people on your behalf:
o Mrs P, your wife;
o Dr Q, Consultant Gastroenterologist and Deputy of the Digestive
Diseases Unit at the Trust;
o Mr R, Consultant Breast and Endocrine Surgeon at the Trust;
o Dr S, Consultant Anaesthetist at Circle Reading;
o Mr T, Specialist Registrar in General Upper Gastrointestinal Surgery
at the Trust at the material time;
o Mr U, Consultant General and Upper Gastrointestinal Surgeon at the
Trust;
o Dr V, Consultant Anaesthetist at the Trust.
8.
The Tribunal also took into account your signed witness statement, dated 20
July 2016, and your oral evidence.

Your oral evidence
9.
In relation to the incident on 21 September 2011, you stated that you did not
treat Mr A differently as a result of age, but that you equated age with experience.
Your comment to Mr A was that someone of his experience should have known how
to deal with the patient. It was not in your character to touch people, and you did
not touch Mr A on the head.
10.
In relation to the incident on 25 October 2013, you denied saying that Mr A
needed to take weekends off but that you pointed out to him that weekends on call
become more onerous with age and might be detrimental to health XXX. You also
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denied telling Mr A that he should not do any more locum shifts for three months.
You stated that out of hours working has an effect on more senior doctors and you
would not have said this to a more junior doctor as they have the ‘vigour of youth ’
to rely upon. You said that you probably suggested that it ‘might have been a good
idea ’ for Mr A not to do any more locum shifts in order to allow him to recover
without taking sick leave.
11.
In relation to the meeting on 13 December 2013, you stated that, from your
viewpoint, your reference to Nigeria did not have any racial connotation and if the
swap had been made with somebody going to another country, you may have made
the same comment.
12.
You stated that your reference to highly egocentric groups related to certain
wishes about the rota itself and that there was a degree of self-interest in a lot of
the comments made by a wide variety of people in that meeting. You stated that
you were referring to the wider group in that meeting, namely, people affected by
the rota.
13.
With reference to the term ‘sub-continent elements ’, you stated that the
issue was that in that meeting there was a set of behaviours and things were said
that were completely out of your normal experience throughout your long career.
You stated that the issue of race was introduced by the complainants and even now
you find these comments quite shocking and deeply offensive and you have not
changed your position on that. You had no idea as to why the language and conduct
were deployed and why that approach had been taken, nor why the comments
would be made in a meeting like that. You stated that the behaviour and conduct of
the complainants was entirely disruptive.
14.
You informed the Tribunal that at the time of this meeting, there had been a
lot of comment in the medical and national press about actions being taken around
unfairness towards BME doctors which culminated in the British Association of
Physicians of Indian Origin (BAPIO) taking the GMC to court. You stated that the
term ‘slavery ’ had been used earlier in the year and you felt that this language was
quite unacceptable and reported the incident to HR. You said that it was completely
unacceptable on that occasion to use the expression slavery and especially in the 13
December 2013 meeting when it was repeated in direct association with the word
racism. You stated that this resonated as you had recently been to the southern
states of the USA and the residual effect of visiting towns affected by slavery you
found ‘haunting ’.
15.
You stated that you consider vile to mean, amongst other things, very
unpleasant.
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16.
Your comment, ‘they mix and match in their heads separately’, related to the
complainants, and was not about people from the sub-continent generally. You were
exasperated, and did not know what you could do to put matters right.
17.
You explained that ‘needs a good slap ’ is a colloquial expression and that you
did not have any intention of actually hitting anyone. You stated that using that
comment just goes to show how upset you were about what had happened that
afternoon.
18.
With reference to the incident on 5 February 2014, you stated that you do not
have a memory of a confrontational episode with Ms D. You did not admit paragraph
11 of the allegation because you do not consider that it sums up the true nature of
the alleged confrontation with Ms D. However, you do not deny that you went to the
theatre block that day. You stated that these were inappropriate comments, and,
XXX.
19.
The Tribunal heard oral evidence from the following witnesses on behalf of
the GMC:

Dr J
20.
At the end of 2013, Dr J was asked by the Human Resources Department of
the Trust to conduct a case investigation and produce a case report in relation to the
allegation that you swore and displayed unprofessional conduct and intimidating
behaviour towards staff in the main theatres of the Trust on 10 August 2013. XXX.

Dr F
21.
Dr F was one of the doctors who referred you to the GMC. Dr F had worked
at the Trust on a series of short term contracts of varying durations. He explained
that the reference he made to slavery in the meeting of 13 December 2013 was in
relation to the way he and his colleagues were being treated; not being offered
permanent contracts and being deskilled, rather than any financial issues. He stated
that he was aware of the plan to record the meeting of 13 December 2013; this was
done in an attempt to obtain accurate minutes, as minutes of previous meetings had
not been an accurate reflection of the meetings. He went on to state that he
believed that Mr Hale was part of a racist scheme done by a secret command, and
that he and the other complainants were being used.

Mr E
22.
Mr E was one of the doctors who referred you to the GMC. He explained in his
evidence that he had been on a series of fixed term contracts for several years and
he wanted a permanent contract. He never had any aspirations to become a
consultant. He stated that when you offered him a specialty contract, it was what he
had been asking for all along, and that he accepted the offer providing a job plan
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was drawn up within three months. He stated that a job plan was never drawn up,
and the contract was not implemented. It was Mr E’s view that contracts being given
and renewed over many years, but not being made permanent, amounted to race
discrimination and victimisation. He stated that Mr G took the lead in drafting the
grievance and GMC letters, and he then circulated them to the other three
complainants for their agreement. He confirmed that he was ‘advised by the other
staff grades that they were planning to covertly record the meeting ’ on 13
December 2013.

Mr A
23.
Mr A was one of the doctors who referred you to the GMC. He confirmed that
he was dismissed from the Trust due to gross misconduct, but could not provide the
Tribunal with any specific details regarding this as the findings of an employment
tribunal are being appealed and so have not been finalised. He stated that he
believed that the complainants were being systematically discriminated against due
to their race as he had no reason to believe that they were not being given
permanent contracts for any other reason. With regards to the recording of the
meeting on 13 December 2013, Mr A stated that he was never involved in any
discussions with the other complainants to plan to record the meeting. He stated
that a male trainee registrar had been looking at Mr A’s new mobile telephone and
had turned on the recorder prior to the meeting without his knowledge. He could not
recall the name of the trainee registrar. Mr A had then left the meeting early and
forgotten to take his mobile telephone and belongings. He went back to collect them
later in the evening which is when he realised that a recording had been taken. He
stated that he gave his phone to Mr E and he does not know what happened to it
after that. Mr A stated that when others referred to him recording other meetings in
their evidence, it meant that he went away afterwards and made handwritten notes
of what had happened, rather than him taking an audio recording. Mr A informed
the Tribunal that there had been no covert audio recordings at the Trust, other than
the one at the meeting on 13 December 2013.

Mr G
24.
Mr G was one of the doctors who referred you to the GMC. He confirmed that
he was dismissed from the Trust due to gross misconduct, but could not discuss the
specific circumstances as the legal proceedings were ongoing. His belief is that he
and the other complainants were discriminated against based on their connection of
all being from the Indian sub-continent. He stated that he could not see that it was
anything other than racism. He stated that it was his basic right to have a contract
that complied with employment law, and that this basic right had been denied. He
stated that the contract he was offered at the end of 2012 was illegal and that the
BMA had rejected it as it was far below the national standards. He stated that there
were a lot of mistakes in Mr H’s report, that he had asked for corrections to be made
but that they had not been made. Mr G stated that he and the other complainants
had written the initial grievance letter to Mr X collectively. He said that he does not
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know who recorded the meeting on 13 December 2013, but knows that it was not
him, and that he was not involved in any discussions about recording the meeting
beforehand.

Ms O
25.
Ms O was appointed as Service Manager in the Digestive Diseases unit at the
Trust in 2011. She explained that the department was in difficulty before she arrived
as it was encountering problems such as concerns raised by local GPs and the
Clinical Commissioning Group, as well as patients getting lost in the system. The
introduction of a bowel screening programme had also lead to an increase in
referrals to the department. She stated that the concerns of the complainants
regarding their contracts had been an ongoing matter long before she had become
involved in the department. She stated that you always applied yourself to the best
of your ability, you were committed and focussed, and were not a racist or abuser.
She did not believe that you treated staff any differently on the basis of their
ethnicity or background. She stated that the Trust’s sickness and absence policy and
process was a challenge, and that monitoring and recording of absences was not
very robust. With regard to Mr A’s sick leave, it had been noted that he had been off
sick on more than one occasion, and that it was the general protocol for staff
members who had been off sick to not work extra duties at weekends, as sick leave
has a greater impact on the department at weekends. It was her opinion that the
suggestion made by you for Mr A not to work weekends for a couple of months was
delivered with concern for Mr A’s health and wellbeing.

Ms M
26.
Mr Sephton made an application under Rule 34(13) of the Rules to hear oral
evidence of Ms M via video link. He made the application on the basis that she would
not be available to attend these proceedings in person at a convenient time due to
childcare reasons, and that it was in the interests of justice that she be able to
provide oral evidence by an alternative means, especially since there was likely to be
a limited number of questions for her. Mr Sutton did not object to this application.
27.
Having considered Mr Sephton’s application, the Tribunal took the view that it
was in the interests of justice to hear Ms M’s evidence via video link, and therefore
acceded to the application.
28.
Ms M explained that she was in the adjoining room to Ms D when the incident
on 5 February 2014 occurred. She confirmed that she could not see your facial
expressions, as you were facing the other way, and that her view could have been
blocked by the junior doctors who were also in the room. She stated that she heard
a bang. She could not be certain that it was caused by your fist on the desk, as she
did not see it, but she thought that this was the most likely cause of the noise.
29.
The Tribunal heard oral evidence from the following witnesses on your behalf:
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
Mrs P
30.
Though she was not a first-hand witness to any of the incidents mentioned in
the allegation, Mrs P was able to provide the Tribunal with information about how
the stressors at the Trust impacted upon your behaviour at home XXX.

Dr K
31.
XXX.
32.
XXX.
33.
XXX.
34.
XXX.

Dr Q
35.
Dr Q stated that the letter of support for you written to Mr W reflected his
views at the time and now. He stated that your style of management was different
from the previous Clinical Director and was much more transparent. He attributed a
number of the difficulties in the department at the time to the actions of the
previous Clinical Director. He said that you had to act in a robust manner but he did
not recognise “utterly ruthless and brutal ” as your management style. He stated
that the “bad behaviour ” of a number of junior doctors was well known amongst
staff in the hospital. He stated that you offered an apology to the appeal panel of
the Trust and were expressing genuine remorse for the things you had said.

Dr V
36.
Dr V confirmed that she knew you on a professional basis through working
with you at the Trust for around twenty years. She stated that she knew the
complainants as she worked with them on CEPOD lists. She stated that she felt that
she had to be very careful with her interactions with Mr A and Mr G, and that Mr E
and Dr F were good at their work but were not always enthusiastic. She went on to
state that your management style was robust and clear-sighted, that you always
wanted the best for patients, and that she had never heard you use bad language.

Dr S
37.
Dr S is a Consultant Anaesthetist at Circle Reading, and your appraiser. He
confirmed that he has around fifteen years of experience working within the NHS.
He stated that locum consultant posts are rarely filled by white British applicants as
most white British doctors go into training leading to substantive posts. He
confirmed that you had been on courses and that this has helped you to reflect and
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gain insight into how to respond in stressful situations. He did not doubt that you
would have the capacity to deal with stressful events in future should they arise.

Mr U
38.
Mr U regards himself as a close friend of yours, and has been a colleague
since 2002. Although he did not witness any of the incidents mentioned in the
allegation first-hand, he stated that his witness statement reflects reports to him
from several different people whom he trusts and has worked with for several years.
He stated that your management style was very direct, but that you were friendly,
professional and trustworthy.
39.
The Tribunal also heard an audio recording of the meeting which took place
on 13 December 2013.
40.
The evidence the Tribunal received from the various witnesses has not been
rehearsed in full, but is a matter of record. A substantial proportion of the evidence
related to background matters at the Trust at the time of the incidents, and did not
relate specifically to the allegation.
The Tribunal’s Approach
41. In reaching a determination on the remaining facts of this case, the Tribunal
considered all the evidence adduced, both oral and documentary, as well as the
submissions made by Mr Sephton on behalf of the GMC and by Mr Sutton on your
behalf. Their submissions are a matter of record, and the Tribunal has not rehearsed
them in this determination.
42. The Tribunal heard and accepted the advice of the Legal Assessor. This advice is
also a matter of record. He reminded the Tribunal that in these proceedings the burden
of proof rests upon the GMC and the standard of proof is that applicable to civil
proceedings, namely the balance of probabilities.
The Tribunal’s Findings
43. The Tribunal considered each of the remaining paragraphs and sub-paragraphs of
the allegation separately and made the following findings:
Incident on 21 September 2011
Paragraph 3
During a review of a patient, you failed to show respect for Dr A in that you:
d. touched Dr A’s head with your finger. Found not proved
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44.
In determining the remaining sub-paragraphs of paragraphs 3 and 4, the
Tribunal considered the credibility of Mr A. It had concerns about his truthfulness.
He stated that he could not remember the basis of his dismissal document, which
the Tribunal believed to be highly unlikely. When questioned about who had
recorded the meeting on 13 December 2013, he had stated that the recording was
made inadvertently. This differed from the accounts of the other complainants. Mr
A’s evidence was that a male registrar had accidentally switched on the recording
function on Mr A’s phone without his knowledge. However, he could not name him
and, when taken to a list of attendees at the meeting, there was no male registrar
present. Further, Mr A told the Tribunal that there had been no other covert
recordings taken at meetings, however in his unredacted witness statement, Mr A
exhibited a transcript of another covert recording taken by the complainants. The
Tribunal considered Mr A to be an unreliable witness who was inconsistent,
exaggerated his evidence, and attempted to mislead the Tribunal.
45.
The Tribunal noted that although Mr A had mentioned in his letter to Mr Y on
21 September 2011 that you had touched his head with your finger, he had not
subsequently mentioned it in his witness statement. There were further
inconsistencies in his evidence with regard to where the incident took place and who
was present. The Tribunal could not be satisfied that Mr A had given a wholly
truthful account in his letter or his evidence, and preferred your evidence in relation
to this incident. It therefore found this sub-paragraph of the allegation not proved.
Incident on 25 October 2013
Paragraph 4
On 25 October 2013 during a meeting with Dr A about his sick leave you:
a. said to Dr A words to the effect of:
ii.
”You’re getting older, you should be taking weekends
off”; Found not proved
46.
Both you and Mr A, during oral evidence, agreed that rather than saying
“You’re getting older …”, you had actually said words to the effect of “We’re getting
older …”. The Tribunal felt that this was an important distinction as to the meaning
of the charge, and therefore found this sub-paragraph of the allegation not proved.
b. told Dr A that he should not do any more locum shifts for three
months. Found proved
47.
The Tribunal considered that the word ‘told ’ could be used to include a
demand, a suggestion, or advice, depending upon the circumstances. In this
context, it is followed by the words ‘should not do ’ and not ‘must not do ‘. In Mr A’s
contemporaneous letter to Mr Y, he said that ‘he suggested that I should not do any
locum work …’. It was the Tribunal’s understanding that you were suggesting to Mr
A that he should not work any more locum shifts for three months, but that you
were not demanding that he ‘must not ’. The Tribunal therefore found this subparagraph of the allegation proved, on the basis that you were giving Mr A advice.
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Paragraph 5
Your conduct as outlined at paragraphs 3 and 4 above was unfairly
discriminatory against Dr A. Found not proved in relation to 3.a, 3.b, 3.c,
4.a.i and 4.b
48.
As to paragraph 3, the issue was that Mr A was not doing his job to the
requisite standard, given his experience. As to paragraph 4, the issue related to the
effect of Mr A’s ill health upon his ability to carry out his work. The Tribunal
recognised that it was part of your job as a Consultant and as Clinical Director to
intervene in such circumstances. On each occasion, your intervention was justified
on clinical or operational grounds. On neither occasion were your actions unfairly
discriminatory against Mr A. The Tribunal therefore determined that your conduct
was not unfairly discriminatory against Mr A.
Meeting on 13 December 2013
Paragraph 9
After some of your colleagues had left the Meeting, you failed to show respect
for colleagues of an ethnic minority background (‘the colleagues’) in that you:
a. offered to place a bet that one of them, having committed to work
a particular shift, would fly to Nigeria and that there would be a
problem with the plane coming back or words to that effect;
Found not proved
b. referred to them as “a highly egocentric group”; Found not
proved
c. said “In this – some of these subcontinent elements what you end
up with is long term resentments and grievances and all sorts of
stuff. They are their own worst enemies” or words to that effect;
Found proved
d. said “They don’t know what they want”; Found not proved
e. said “They mix and match in their heads differently. They’re not
clear thinkers”; Found not proved
f.
said that one of them “needs a good slap”; Found proved
g. referred to them as “an unbelievable group of people. Vile
actually”. Found proved
49.
It was not in issue that you had used the words attributed to you. The
Tribunal considered the context in which the above comments were made to be
important. The exchange was made in what you thought was a private setting,
though it was being covertly recorded. It was following a meeting in which the
colleagues you were talking about had not shown respect to you. There were junior
colleagues present, and they had also been present at the meeting. The Tribunal
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considered that colleagues are not exempt from being respectful when they are
engaged in a private meeting in the workplace. XXX.
50.
In relation to sub-paragraph a, the Tribunal bore in mind the context of the
discussion which was about shift swapping and problems encountered in the past. It
accepted that you had used Ms Z as an example to illustrate a wider problem. It
might have been disrespectful if you had suggested that Ms Z was the sort of person
who would deliberately delay flying back from Nigeria, but the Tribunal did not
accept that this was the meaning of your comment. In the circumstances, the
Tribunal did not find your comment to be disrespectful, and therefore found this
sub-paragraph of the allegation not proved.
51.
In relation to sub-paragraph b, the Tribunal considered that in this context,
an ‘egocentric ’ person is someone who puts their individual needs before the needs
of the department. The Tribunal considered that when you referred to the ‘highly
egocentric group ’, you were referring to a wider group than just the complainants,
including colleagues from various ethnic backgrounds. It did not find the words to be
disrespectful given that it was clear from the recording that the people present were
concerned about how the rota changes would impact upon them individually. It
therefore found this sub-paragraph of the allegation not proved.
52.
In relation to sub-paragraph c, the Tribunal considered that the use of the
word ‘elements ’ after ‘subcontinent ’ portrayed a dismissive attitude towards the
complainants. It considered that, however antagonistic and disrespectful they had
been in the meeting, it was not respectful to use such a term to describe them. It
therefore found this sub-paragraph of the allegation proved.
53.
In relation to sub-paragraph d, given the context of the prior meeting, the
Tribunal accepted that, in your view, the complainants had been inconsistent in
relation to contractual matters, and it was to this inconsistency that you were
referring when you said the words “They don’t know what they want”. This was not
a reference to an ethnic group. The Tribunal therefore found this sub-paragraph not
proved.
54.
In relation to sub-paragraph e, the Tribunal believed the use of the words ‘not
clear thinkers’ to have been made based on the complainants’ behaviour in the
meeting and their tendency to talk over other people, creating a difficult
atmosphere. It considered the word ‘differently ’ to have been used to distinguish
the group on this basis, rather than to mean different to other ethnicities. It
considered the ‘mix and match ’ comment to be unhelpful, but not derogatory given
the context of the situation. It therefore found this sub-paragraph of the allegation
not proved.
55.
In relation to sub-paragraph f, the Tribunal accepted that you did not intend
to mean that they literally needed a slap, but that it was a turn of phrase following
on from ‘chill pill’ . Nevertheless, the Tribunal considered that it was still a
disrespectful thing to say about a staff member, especially in front of junior
colleagues. It therefore found this sub-paragraph of the allegation proved.
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56.
In relation to sub-paragraph g, the Tribunal bore in mind the context of the
situation, in that you had been called a racist and a slave-driver, which you believed
to have been without justification. Despite this, the Tribunal considered that,
whether justified or not, you should not have expressed your views in such a way,
especially in front of other colleagues. It found the word ‘vile ’ to be disrespectful
because you applied it to the individuals rather than to their conduct. It therefore
found this sub-paragraph of the allegation proved.
Paragraph 10
Your conduct as outlined at paragraph 9 above was:
a. motivated by racial prejudice; Found not proved in relation to
9.c, 9.f and 9.g
57.
Your comments followed a heated and antagonistic meeting at which the
complainants made a number of unprofessional and personal comments which
included accusations of racism and slavery. Whatever their grievances may have
been, they were not appropriate comments to have made at that meeting. Their
conduct at the meeting followed similar behaviour towards you and other staff
members over a period of time. The Tribunal was satisfied that against that
background your comments were not motivated by racial prejudice, but rather in
response to the conduct of the complainants both during and prior to the meeting.
Although your comments were derogatory and dismissive, the Tribunal is satisfied
that they were not racially motivated. It therefore found this sub-paragraph not
proved in relation to 9.c, 9.f and 9.g.
b. unfairly discriminatory against the colleagues referred to in
paragraph 9. Found not proved in relation to 9.c, 9.f and 9.g
58.
The Tribunal has already found that your conduct at sub-paragraphs 9.c, 9.f
and 9.g were not motivated by racial prejudice, but by the ongoing behaviour of the
colleagues. With no other basis for discrimination having been asserted, the Tribunal
found this sub-paragraph of the allegation not proved in relation to 9.c, 9.f and 9.g.
Incident on 5 February 2014
Paragraph 11
On 5 February 2014, you attended the polytrauma theatre at the Hospital
with several junior colleagues to perform surgery. Found proved, as
amended
59.
You did not deny that you had attended the theatre block on 5 February
2014, but said that it was not the polytrauma theatre, and that your primary
purpose on that day was not to perform surgery. During his submissions, Mr
Sephton suggested an amendment to this sub-paragraph of the allegation under
Rule 17(6) of the Rules, so that it would read: ‘On 5 February 2014, you attended
theatre at the Hospital with several junior colleagues.’ Mr Sutton did not object to
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the suggestion. The Tribunal therefore determined to amend the sub-paragraph as
suggested, and then found it proved.
Paragraph 12
Upon discovering that the polytrauma theatre was in use you failed to show
respect for Ms D in that you:
a. banged your fist on Ms D's desk; Found not proved
b. shouted at Ms D; Found proved
c. said to Ms D:
i.
“You don’t care that this hospital is going to shit.” or
words to that effect; Found not proved
ii.
“If we don't do these, you are going to kill my fucking
patients and I am going to kill you” or words to that
effect; Found not proved
d. were aggressive towards Ms D. Found proved
60.
The Tribunal had regard to the definition of the word ‘failure’; an omission to
do something which ought to have been done. It considered that, given your role, it
was a prerequisite for you to show respect, XXX.
61.
There was no direct evidence before the Tribunal that you had banged your
fist on Ms D’s desk. Ms D did not mention in her interview with the Trust that you
had banged your first on her desk. Ms M stated in her evidence that she had heard a
bang and thought that the most likely scenario was that you had banged your fist on
the desk. However, without evidence of such an action being seen, the Tribunal
could not be satisfied that it was more likely than not that it happened. It therefore
found this sub-paragraph of the allegation not proved.
62.
Ms D had stated in the investigatory meeting on 25 June 2014 that you had
shouted and were aggressive. The Tribunal were unable to test her evidence as she
did not appear before them as a witness. However, Ms M was in an adjacent office
at the time with the door open, and agreed in her evidence that you were shouting
and aggressive. The Tribunal found Ms M to be a truthful witness and credible as to
the generalities of the incident. It therefore found sub-paragraphs b and d of the
allegation proved.
63.
Ms D had stated in the investigatory meeting on 25 June 2014 that you had
used the words “You don’t care that this hospital is going to shit ” Due to the
passage of time between the incident in February and the investigatory meeting, the
Tribunal’s inability to test the evidence, and the lack of any further witness backing
this up, the Tribunal was not satisfied that it was more likely than not that you had
said these words, or words to that effect. It therefore found this sub-paragraph of
the allegation not proved.
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64.
Ms M had stated in the investigatory meeting on 18 September 2014 that you
had used the words “If we don't do these, you are going to kill my fucking patients
and I am going to kill you ”. The Tribunal noted that such words were not
mentioned by Ms D when she was interviewed, and expected that such words would
have had most impact on her as they were apparently aimed at her. Given that
seven months had passed between the incident and the investigatory meeting, and
without further evidence to back this up, the Tribunal was not satisfied that it was
more likely than not that you had said these words, or words to that effect. It
therefore found this sub-paragraph of the allegation not proved.
Determination on Impairment - 13/09/2016
Mr Hale:
1.
The Tribunal has now considered whether, on the basis of the facts found proved,
your fitness to practise is impaired by reason of your misconduct. In doing so, it has
taken into account all the evidence before it and the submissions made by Mr Sephton
on behalf of the GMC and by Mr Sutton on your behalf.
Submissions
2.
The submissions made are a matter of record, and the Tribunal has not rehearsed
them in full in this determination.
3.
In summary, Mr Sephton, on behalf of the GMC, submitted that it is a matter for
the Tribunal whether your fitness to practise is impaired. He submitted that the Tribunal
should consider each of the incidents separately and not in the aggregate when
considering whether your behaviour amounted to misconduct that is serious. He also
reminded the Tribunal to consider the impact of your conduct on public confidence in
the medical profession. He indicated that he did not invite a finding of misconduct in
respect of the incidents on 21 September 2011 and 25 October 2013. The GMC was
neutral as to whether an overall finding of impairment would be appropriate.
4.
Mr Sutton, on your behalf, submitted that the matters found proved do not amount
to misconduct. He submitted that the threshold of misconduct is not met because your
inappropriate behaviour was out of character XXX, and that you cannot be said to be
morally culpable in the circumstances.
5.
Mr Sutton went on to submit that you have shown a convincing level of remorse,
reflection and insight into the material events, and have taken appropriate steps to
develop your understanding of why you behaved as you did and how such episodes can
be avoided in the future. He therefore submitted that the Tribunal should find that your
fitness to practise is not impaired by reason of misconduct.
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The Tribunal’s Approach
6.
Whilst the Tribunal has borne in mind the submissions made, the issue of
impairment is one for it to determine exercising its own judgement. It has also carefully
considered the evidence adduced and the facts found proved. It has had regard to the
relevant editions of Good Medical Practice (GMP) and the principles contained therein.
7.
The Tribunal recognised that it should adopt a two stage process when considering
the question of impairment. First, it would consider whether the facts found proved
amounted to misconduct. Second, in the event that it did find misconduct proved, it
would consider whether your fitness to practise is currently impaired as a result.
8.
In deciding whether your fitness to practise is impaired, the Tribunal was aware
throughout of the overarching objective to protect the public which involves protecting
and promoting the health, safety and wellbeing of the public, promoting and
maintaining public confidence in the medical profession and promoting and maintaining
proper professional standards and conduct for the members of the profession.
9.
XXX.
The Tribunal’s Decision
Misconduct
10. The Tribunal first considered whether the facts found proved amounted to
misconduct. It reminded itself that in order to constitute misconduct, within the meaning
of the Medical Act (1983) (as amended) it would be necessary to find a departure from
acceptable standards which was so serious that it would be considered deplorable by
fellow practitioners and would undermine public confidence in the profession.
11. In reaching its decision, the Tribunal bore in mind the case of Schodlok v The GMC
[2015] EWCA Civ 769, and considered each incident separately, rather than collectively.
Incident on 21 September 2011
12. The Tribunal acknowledged that it was necessary as part of your role as Consultant
and Clinical Director to intervene if there were any concerns about the performance of
staff members. It took into account its previous findings that you failed to show respect,
and felt that the way you dealt with the situation was not appropriate. However, you
had apologised to Mr A, the apology had been accepted, and you had both considered
the matter closed. The Tribunal considered that your conduct during the incident
individually would not be regarded as deplorable by fellow practitioners, especially since
your conduct was found not to be unfairly discriminatory, and therefore determined that
it did not amount to misconduct that was serious.
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Incident on 25 October 2013
13. The Tribunal bore in mind the reason for the meeting, which was to discuss the
effect of Mr A’s health on his ability to carry out his work. The Tribunal previously found
that your mention of not doing locum shifts for three months was advisory rather than a
demand. There was no allegation of disrespect, and in the absence of unfair
discrimination, the Tribunal concluded that this incident did not constitute misconduct.
Incident on 10 August 2013
14. The Tribunal considered that your outburst and failure to show respect to
colleagues were inappropriate. When determining if this conduct amounted to
misconduct, it was necessary for it to also consider the background circumstances.
15. It must always be unacceptable to behave in an intimidating manner, particularly
towards junior colleagues. However, the Tribunal took into account that the reason you
lost your temper was out of concern for a patient you considered required immediate
surgical intervention. It further noted that you had multiple stressors and work
pressures at the time, XXX. It also bore in mind that you apologised to Dr C and offered
to apologise to other staff members who had been affected by your behaviour.
16. The Tribunal, having treated this incident in isolation, concluded that, given the
circumstances and considering the incident in context, your behaviour did not amount to
misconduct that was serious.
Meeting on 13 December 2013
17. The Tribunal has previously found that you failed to show respect to colleagues,
but that this was not motivated by racial prejudice. It found your remarks to be
derogatory, dismissive and inappropriate, especially since they were made in front of
other colleagues, including a trainee manager.
18. Again, the Tribunal took into account the circumstances. There had been a period
of increasing disharmony arising out of an ongoing contractual dispute. You had been a
part of a meeting which was described as ‘toxic ’, and in which the complainants had
shown disrespect by making accusations of racism and slavery. The Tribunal noted from
the audio recording that you had remained measured and polite during the formal
meeting, but that you were understandably frustrated when the meeting ended.
19. The Tribunal determined that, though it was wrong of you to have given such
opinions in front of those who remained, the context of the meeting XXX meant that, in
considering this incident in isolation, it did not reach the threshold for serious
misconduct.
Incident on 5 February 2014
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20. In deciding if your shouting at and aggression towards Ms D amounted to
misconduct that was serious, the Tribunal bore in mind its finding that you had failed to
show respect to Ms D through your conduct. XXX the Tribunal determined that you
should not be held culpable for your actions during this incident, and that your conduct
therefore did not amount to misconduct that was serious.
Impairment
21. Having determined that the facts found proved relating to each of the incidents
individually did not amount to misconduct that was serious, the Tribunal therefore
determined that your fitness to practise is not impaired by reason of misconduct.
Determination on Warning - 13/09/2016
Mr Hale:
1.
Having determined that your fitness to practise is not impaired, the Tribunal has
now considered whether to issue a warning on your registration.
2.
Mr Sephton, on behalf of the GMC, submitted that it would be improper to seek a
warning given the findings in this case.
3.
Mr Sutton, on your behalf, submitted that it would not be appropriate or
proportionate to issue a warning given the Tribunal’s findings in relation to the impact of
the circumstances, XXX. He also submitted that there is compelling evidence of your
insight, reflection and of the rehabilitative steps you have taken.
The Tribunal’s Approach
4.
In making its decision as to whether a warning would be appropriate in the
circumstances of your case, the Tribunal had regard to the GMC’s Guidance on Warnings
(December 2015) (the Guidance). In particular, the Tribunal bore in mind paragraph 33
of the Guidance, which states:
“33
However, if the decision makers are satisfied that the doctor’s fitness to
practise is not impaired or that the realistic prospect test is not met, they
can take account of a range of aggravating or mitigating factors to
determine whether a warning is appropriate. These might include:
the level of insight into the failings.
MPT: Mr HALE
a
A genuine expression of regret/apology.
b
Previous good history.
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c
Whether the incident was isolated or whether there has been
any repetition.
d
Any indicators as to the likelihood of the concerns being
repeated.
e
Any rehabilitative/corrective steps taken.
f
Relevant and appropriate references and testimonials.”
5.
Throughout its deliberations the Tribunal applied the principle of proportionality,
weighing the public interest with your interests.
The Tribunal’s Decision
6.
The Tribunal accepted that, given the passage of time since the incident on
21 September 2011 and the fact that you apologised at the time to Mr A and you
had both considered the matter closed, it was not necessary to consider issuing a
warning in respect of that incident.
7.
With regard to the other incidents, the Tribunal took account of the mitigating
circumstances. It noted that you had apologised for your behaviour on more than
one occasion, and you have worked as a doctor for around 30 years with no other
issues. Although there were several incidents between August 2013 and February
2014, there was no criticism of your behaviour during the incident on 25 October
2013, XXX. There is no evidence of repetition of this type of behaviour since
February 2014. You have shown insight and reflection and have attended relevant
courses to increase your self-awareness. XXX. The Tribunal also took account of the
impressive testimonial evidence provided.
8.
The Tribunal does not condone your disrespectful behaviour. XXX. However,
the Tribunal concluded, XXX, that a warning was not necessary to uphold public
confidence in the medical profession, and would be disproportionate.
9.
That concludes this case.
Confirmed
Date 13 September 2016
MPT: Mr HALE
Mr Sean Ell, Chair
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