“(1) This section applies where an allegation is made to the General Council against— (a) a fully registered person; or (b) a person who is provisionally registered, that his fitness to practise is impaired. (2) A person’s fitness to practise shall be regarded as “impaired” for the purposes of this Act by reason only of— (a) misconduct; (b) deficient professional performance; (c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence; (d) adverse physical or mental health; or (e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect.”
“(1) An allegation shall initially be considered by the Registrar. (2) Subject to paragraphs (3) to (5) and rule 5, where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under rule 8. ….” (iii)Rule 5: “(1) Subject to rule 4(5), the Registrar shall refer an allegation falling within section 35C(2)(c) of the Act relating to a conviction resulting in the imposition of a custodial sentence, whether immediate or suspended, directly to the MPTS for them to arrange for it to be considered by a Medical Practitioners Tribunal. (2) Subject to rule 4(5), the Registrar shall refer any other allegation falling within section 35C(2)(c) or (e) of the Act directly to the MPTS for them to arrange for it to be considered by a Medical Practitioners Tribunal, unless he is of the opinion that it ought to be referred to a medical and a lay Case Examiner under rule 8.” (iv) Rule 7 (Investigation of allegations): “(1) As soon as is reasonably practicable after referral of an allegation for consideration under rule 8, the Registrar shall write to the practitioner – (a) informing him of the allegation and stating the matters which appear to raise a question as to whether his fitness to practise is impaired; (b) providing him with copies of any documents received by the General Council in support of the allegation; (c) inviting him to respond to the allegation with written representations within the period of 28 days from the date of the letter; and (d) informing him that representations received from him will be disclosed, where appropriate, to the maker of the allegation (if any) for comment. (2) The Registrar shall carry out any investigations, …, as in his opinion are appropriate to the consideration of the allegation under rule 8. ….” (v)Rule 8: “(1) An allegation referred by the Registrar under rule 4(2), 5(2), 12(6)(b) or 28(2)(b) shall be considered by the Case Examiners. (2) Upon consideration of an allegation, the Case Examiners may unanimously decide – (a) that the allegation should not proceed further; (b) to issue a warning to the practitioner in accordance with rule 11(2); (c) …; or (d) to refer the allegation to the MPTS for them to arrange for determination by a Medical Practitioners Tribunal. (a) that the allegation should not proceed further; (b) to issue a warning to the practitioner in accordance with rule 11(2); (c) …; or (d) to refer the allegation to the MPTS for them to arrange for determination by a Medical Practitioners Tribunal. (4). As soon as reasonably practicable, the Case Examiners shall inform the Registrar of their decision, together with the reasons for that decision, and the Registrar shall notify the practitioner and the maker of the allegation (if any), in writing, accordingly. …” (vi). Rule 11 makes various provisions for the issue of a warning where the Case Examiners are satisfied that the allegation ought not to be referred to the MPTS. (vii). Rule 12 (Review of decisions): “(1) Subject to paragraph 2, the following decisions may be reviewed by the Registrar – (a) a decision not to refer an allegation to a medical and a lay Case Examiner or, for any other reason, that an allegation should not proceed beyond rule 4; (b) a decision not to refer an allegation to the Committee or to the MPTS for them to arrange for it to be considered by a Medical Practitioners Tribunal; (c) a decision to issue a warning in accordance with rule 11(2), (4) or (6) ….. (2) The Registrar may review all or part of a decision specified in paragraph (1) on his own initiative or on the application of the practitioner, the maker of the allegation (if any) or …. when the Registrar has reason to believe that – (a) …. (b) there is new information which may have led, wholly or partly, to a different decision, but only if one or more of the grounds specified in paragraph (3) are also satisfied. (3) Those grounds are that, in the opinion of the Registrar, a review is – (a) necessary for the protection of the public; (b) necessary for the prevention of injustice to the practitioner; or (c)otherwise necessary in the public interest. … (6) Where the Registrar, taking account of all relevant material including that obtained under paragraph (5), concludes that all or part of a decision specified in paragraph (1) was materially flawed (for any reason) or that there is new information which would probably have led, wholly or partly, to a different decision and that a fresh decision is necessary on one or more of the grounds specified in paragraph (3), he may decide – (a) ….. (b) that an allegation should be referred for reconsideration by the Case Examiners under rule 8, 10 or 11. Otherwise, he must decide that the original decision should stand.”
“22. There is a presumption that cases involving a conviction or caution should proceed to a medical practitioners tribunal. There will, however, be cases involving minor convictions or cautions that do not require referral to a medical practitioners tribunal or that, having been referred to a tribunal, are not considered serious enough to warrant a finding of impaired fitness to practise. 23. Examples of convictions and cautions that have resulted in a warning include one-off drink driving offences where we are satisfied that there are no underlying health concerns, disorderly behaviour (without violence) while drunk or minor criminal damage. As stated earlier, each case must be considered on its own merits and the response will depend on the particular circumstances of the case. The decision maker will need to consider, in addition to the illegality of the conduct, if there are any other reasons why repetition may cause concern, having in mind any issues of patient protection, the public’s confidence in the profession or the reputation of the profession (for example, whether in relation to a conviction or caution for affray, this reveals a tendency toward violence in confrontational situations).”
“Convictions resulting in a custodial sentence are referred direct by the Registrar to a medical practitioners tribunal. There is a presumption that the same will apply to cautions, non-custodial convictions, and determinations of other regulatory bodies. However, in some cases a warning will be the appropriate response. There are also a number of minor offences (such as parking offences) where no formal GMC action will be required. Guidance on the handling of convictions and determinations is attached at Annex D.” (ii) Annex D: Guidance on convictions, cautions, determinations and other methods of police disposal (in the form published March 2017), makes reference to rule 5(2) and, at paragraph 7, states that in determining whether to exercise the discretion to refer a conviction or caution to the case examiners, the Registrar will give consideration to the type and nature of the offence; the seriousness of the offence; whether there is a significant risk to the public of serious harm caused by the doctor committing further offences; the type of sentence imposed; and any other information available. The balance of the Annex then addresses the likely approach to specific offences such as motoring offences, drink driving offences, and matters attracting cautions and fines, and seeks to identify matters (such as ASBOs) that are not, in law, criminal convictions. (iii) Paragraph 14 also sets out the test that the case examiners will apply at the conclusion of the investigation stage: “The investigation committee or case examiner must have in mind the GMC’s duty to protect the public which includes promoting and maintaining the health and safety and well-being of the public; public confidence in the profession; and, proper standards and conduct for doctors, in considering whether there is a realistic prospect of establishing that a doctor’s fitness to practise is impaired to a degree justifying action on registration.”
“1. On21 August 2013 you performed a liver transplant on Patient A and you used the argon diathermy device, also known as the argon beam coagulator (“ABC”) to: a. coagulate blood on the surface of Patient A’s liver; b. write the letters “SB”. 2. On more than one other occasion, you have used the ABC to: a. coagulate blood on the surface of liver following implantation; b. write the letters “SB”, or marking to that effect.”
“In the unlikely event that the CPS subsequently advises that criminal proceedings should be commenced, we anticipate inviting the GMC to suspend further consideration of the case until the outcome is known.”
“a misguided attempt to alleviate both tension and exhaustion amongst the theatre team, following an extremely demanding and stressful procedure, upon which the patient’s life ultimately depended.” (ii) The letter recited the background to how this “misguided attempt” had come to light. The liver transplant had, in the event, failed and Patient A had undergone a second transplant operation a little over a week later. By that time the first transplanted liver was inflamed and the markings made by the claimant were significantly larger and more prominent than they had been. When first made the markings had been about 3 cm in height. A photograph had been taken. None of this was reported to the Trust until the end of 2013 and it was then leaked to the press. The patient wrongly concluded that that had caused the failure of the first transplant – that was not, in fact, the case and the failure was the result of prior damage to the transplanted liver. I do not understand this summary of the background to be disputed. (iii) There was then a full investigation during which evidence emerged that the claimant had marked other transplanted livers during the period February to August 2013 which, at the disciplinary hearing in May 2014, he had also admitted. (iv) The nature of that admission was explained more fully as follows: “Mr Bramhall’s position at the start of the Trust investigation had been that he had no recollection of any other occasions upon which he had marked transplanted livers, and that the case of Patient A had fixed in his memory because it had been a particularly difficult procedure, and because (albeit some four months later). the complaint had been drawn to his attention, supported by the photograph … That remains Mr Bramhall’s position. He cannot recall having marked other livers. However, when presented with evidence to the contrary from his colleagues he did not seek to deny that there had been other occasions; simply that he could not remember those occasions. … He believes that his failure to recall other incidents was the product of having known at the time that no harm could possibly be caused to the patient, and that but for the sequence of events that unfolded in the case of Patient A, no adverse consequences could possibly flow from his actions. …”
“The Panel do believe that your responses to the Investigating Team have not been completely honest and that you have been untruthful at times. The Panel found that you admitted the behaviours occurred on one occasion, then stipulated that you did not recollect other occasions and then today, when your representative on your behalf, stated that you did accept that the behaviour occurred on other occasions, it was the times and dates which you could not now recollect…..”
“We note the submissions that none of the four categories for which there is a presumption of impairment is engaged here. One of those categories is violence, which we consider possibly apt to the actions Mr Bramhall took in relation to Patient A and other patients’ livers. We have carefully considered the main guidance for case examiners on making decisions at the end of investigations, as well as the guidance on warnings, which includes examples of misconduct (usually involving criminal sanction) that have resulted in warnings, such as common assault outwith the context of a doctor’s medical practice. While we note the legal arguments about the alleged criminality of Mr Bramhall’s actions, we do not consider them particularly relevant to our decision. The primary purpose of the GMC’s fitness to practise proceedings is to protect the public against future harm from those who are not fit to practise, rather than to punish a doctor for past misdoings. We must decide whether there is a realistic prospect of establishing that the doctor’s fitness to practise is currently impaired: this decision looks forward to what a doctor may do now or in the future, rather than to actions committed in the past. … … Having very carefully considered all the evidence, the submission about Mr Bramhall’s insight, remorse and remediation, we do not consider this to be such a case and, accordingly, concluded that there is not a realistic prospect of establishing current impairment.”
“I am mindful of the potential risk to public confidence in the profession and also in the GMC as a regulator, particularly given the conviction. I share the view of the Case Examiners that Mr Bramhall’s conduct was such a departure from Good Medical Practice that it risks bringing the profession into disrepute.”
“I am also mindful that Mr Bramhall currently has an open investigation on the basis of this conviction. I am therefore of the view that a review is necessary to prevent the risk of injustice to Mr Bramhall. My reasoning for this is that it is likely Mr Bramhall has the, perfectly understandable, belief that this matter has been disposed of by the GMC given that he has received a Warning in relation these concerns. Given we are now investigating these same facts but on the basis that there has been a conviction, if Mr Bramhall is subsequently referred to an MPT, there is a risk that he will be sanctioned whilst still bound by the Warning for the same concerns.”
“Are the two convictions for common assault by beating from13 December 2017 being dealt with as a separate GMC investigation at this stage and are we correct that they do not feature in the rule 12 review, save for the fact that they are considered to constitute relevant new information. If that is the case, could you please confirm the current status of the GMC’s investigation into the convictions. A Rule 4 letter was sent to Mr Bramhall on 10 January, and neither we nor our client have heard further in that regard over the intervening two months …..”
“There is an ongoing investigation in relation to Mr Bramhall’s convictions for common assault. The convictions have not yet been considered by the Case Examiners; this will not be done until the Assistant Registrar at Rule 12 has decided whether a fresh decision in relation to the Warning is necessary at Rule 12(6). You will have noted from the decision at Rule 12(2) and (3) that the Assistant Registrar felt there was a risk of injustice to Mr Bramhall if the Warning were to stand and the Case Examiners considered the convictions separately given the convictions arose out of the same facts. There is a risk that the Warning could remain on Mr Bramhall’s public record whilst the Case Examiners considered the distinct head of impairment arising from the conviction; effectively meaning Mr Bramhall could be sanctioned twice for the same events. … As part of their consideration, the Assistant Registrar will bear in mind all of the documents we hold in relation to the Warning decision and the investigation which led to that decision. If the Assistant Registrar determines that a fresh decision is necessary, it will be a matter for the Case Examiners to determine whether these allegations should be linked to the ongoing convictions investigation or whether they are closed down and the conviction case now runs in isolation.”
“I fully accept that irrespective of your response to the above questions, it would be a matter for the Case Examiners to accept or reject submissions based on previous disposal and/or to determine what weight should be attached to that previous disposal.”
“I have taken into account the comments made on Mr Bramhall’s behalf that the Case Examiners were aware a conviction would arise. However, the fact remains that Mr Bramhall had not been convicted at the time the Case Examiners reached their decision. I remain of the view that had Mr Bramhall been convicted at the time, the Case Examiners would likely have referred the matter to a Tribunal, under the distinct head of impairment.” (ii) As to the risk of injustice to the claimant, the Assistant Registrar said: “… I remain of the view that the only mechanism available to us to remedy the risk of two sanctions running concurrently arising from the same events is for this matter to be referred back to the Case Examiners for a fresh decision.” (iii) As to the public interest, the reasons again focussed on the fact that the public interest includes public confidence in the medical profession, echoing the GMC’s statutory purpose, and that “Mr Bramhall’s conduct was such a departure from Good Medical Practice that it risks bringing the profession into disrepute.”
“This matter has been under investigation by both us and the Police for a very long time and it is my opinion that it is in the interests of fairness to the doctor that the conviction is referred directly to an MPT now by me as an assistant registrar to avoid further delay.”
“…We agree that the criminal conviction in respect of these matters raises further public confidence concerns and that the Assistant Registrar has appropriately referred this matter for consideration by a Medical Practitioners Tribunal. We now address the original allegation of misconduct considered by the case examiners in February 2017. In our view, as this relates to the same facts, and will now be considered by a Medical Practitioners Tribunal, it would be unjust for the case examiners to consider any separate action in respect of these matters. We note that the previously issued warning has been removed from Mr Bramhall’s records and that the circumstances now relating to the previous warning (which related to the original allegation of misconduct) will now be properly considered by a Medical Practitioners Tribunal when determining what, if any action, to take in respect of the conviction.”
“A rule 4 letter was sent to Mr Bramhall on 10 January, and neither we nor our client have heard further in that regard over the intervening two months. It is of critical importance for Mr Bramhall to know whether those convictions are to be referred direct to the Medical Practitioners Tribunal Service (which would be excessive in the circumstances), or referred to the Case Examiners, under Rule 5(2). Until confirmation is received in this regard his ability to make an informed response to the rule 12 review is seriously undermined.”