Looks like dr rogers will be have his licence suspended for 4 months
Fitness to Practice Panel
2-3 october 2007
7th Floor, St James’s Buildings, 79 Oxford Street, Manchester, M1 6FQ
Name of Respondent Doctor: Dr Richard Rogers
Registered Qualifications: MB ChB 1990 Leic
Registration Number: 3454121
Type of Case: New case of impairment by reason of caution.
Panel Members: Dr Timothy Howard (M) Chairman
Professor Romesh Gupta (M)
Ms Jane Everitt (L)
Legal Assessor: Mr Jeffrey Widdup
Secretary to the Panel: Ms Carole Beard
GMC: Mr David Friesner, Counsel, instructed by GMC Legal.
Doctor: Mr Shaun Murphy of Edwards Duthie Solicitors.
The Panel will inquire into the following allegation against Dr Richard Anthony Rogers, MB ChB 1990 Leic.
- On 3 June 2004 at Stratford-upon-Avon Police Station, you were cautioned by Warwickshire Police for obtaining services by deception.
And that by reason of the matters set out above your fitness to practise is impaired because of your caution.
Determination on impaired fitness to practise
Dr Rogers: At the outset of the hearing Mr Murphy, on your behalf, admitted the allegation as set out in the notice of hearing and it has been announced that it has been found proved.
You admitted that on 3 June 2004 at Stratford-upon-Avon police station, you were cautioned for obtaining services by deception.
The Panel has considered whether, on the basis of the fact found proved, your fitness to practise is impaired because of your caution. In doing so, it has taken into account all the evidence, both oral and documentary, as well as the submissions made by Mr Friesner, on behalf of the General Medical Council (GMC), and those made by Mr Murphy, on your behalf.
Mr Friesner has submitted that your course of conduct and dishonest actions should result in a finding of impaired fitness to practise.
Mr Murphy has submitted that the police were mistaken in cautioning you for the offence of obtaining services by deception. He accepts that you might have committed another offence for which you could have been cautioned but he submits that the allegation against you is based on the actual caution and if that caution was wrong in law, your fitness to practice cannot be impaired.
The Panel has had regard to The Medical Act Section 35C(2)©, which states:
“A person’s fitness to practise shall be regarded as “impaired” for the purposes of this Act by reason only of—……
© 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;”
Mr Murphy referred the Panel to Rule 34(3) of the Fitness to Practise Rules. The production of a certificate of conviction shall be conclusive evidence of the offence committed. He argued that there is no reference to a caution in that Rule and it was therefore open to him to argue that the caution was wrong in law.
The Panel does not accept that submission. The Legal Assessor has advised that the mere fact that a doctor has been cautioned does not mean that his fitness to practise is impaired by that fact alone. It is necessary to consider the circumstances which led to him being cautioned. The Panel accepts that advice. The Panel notes that in accepting this caution you admitted falsely signing a change of address form and you admitted that you were dishonest in doing so.
In determining whether your fitness to practise is impaired, the Panel has considered the GMC’s Indicative Sanctions Guidance (April 2005), in particular, S1-2, paragraph 11 which states:
“Neither the Act nor the Rules define what is meant by impaired fitness to practise but for the reasons explained below, it is clear that the GMC’s role in relation to fitness to practise is to consider concerns which are so serious as to raise the question whether the doctor concerned should continue to practise either with restrictions on registration or at all.”
The Guidance also states at S3-15, paragraph 58 that a question of impaired fitness to practise is likely to arise if:
“A doctor has behaved dishonestly, fraudulently or in a way designed to mislead or harm others;
The doctor’s behaviour was such that public confidence in doctors generally might be undermined if the GMC did not take action.”
The Panel also notes the contents of the GMC’s publication “Good Medical Practice” (2001 edition, applicable at the time) which states that doctors:
“must be honest and trustworthy”
Mr Friesner informed the Panel of the background to the caution given to you.
In 1997 Mr B set up Wellesbourne Hair Restoration Centre, a business specialising in hair transplant surgery. About six months later you joined the firm as a Partner. In 1999 the firm was incorporated. At this time you became a Director. In 2001 you left the company in acrimonious circumstances. You then set up your own company, Rogers Medical Limited, which operated from premises in Stratford-upon-Avon.
You were cautioned by the police on 3 June 2004 at Stratford-upon-Avon police station, for obtaining services by deception. The caution related to your course of conduct with regard to a premium rate telephone number, which had originally been used by the Wellesbourne Medical Hair Restoration Centre since 1997. This number was provided by PNC Telecom (PNC).
In August 2003 you completed a change of address form. That form states that it may only be accepted when completed by the original customer, who was Mr B. You have admitted that you forged Mr B signature and that this was dishonest. The new address given to PNC on the form was that of your clinic.
The Wellesbourne Hair Restoration Centre became insolvent in January 2004. Its business assets, including the telephone number were purchased by the Hospital Group.
On 29 March 2004 you arranged for calls to this number to be diverted to the telephone number of Rogers Medical Limited.
You told the Panel that you transferred the calls for two reasons. Firstly, due to your concern over the care patients were receiving from the Hospital Group and secondly due to your anger at Mr B, who had behaved maliciously towards you since 2001. You told the Panel that you wanted to “trick” Mr B.
You informed the Panel that you listened to all the calls received on your answer phone, but that as none of them were medically urgent, you deleted them. You kept no record of the calls, nor contacted the patients to inform them that their calls had been incorrectly diverted. You told the Panel you neither sought nor gained any referrals from these events.
Following a complaint from Mr B to PNC, the diversion of calls to Rogers Medical Limited was cancelled, and returned to the Hospital Group on 2 April 2004.
In answer to questions you admitted that you knew that your action in diverting the calls was wrong, that you were ashamed and that you regretted your actions.
Doctors occupy a position of privilege and trust in society and are expected to act with integrity and to uphold proper standards of conduct. Doctors must be honest and trustworthy at all times. The Panel is in no doubt that the matters which have been found proved are serious. It is the duty of the Panel to maintain public confidence in the profession.
The Panel considers that your behaviour has fallen below the proper standards of conduct expected of a member of the medical profession.
It is concerned that your actions were dishonest and that in forging the signature on the change of address document you were misleading a commercial company, namely PNC.
The Panel is gravely concerned by your complete and continued lack of insight into and disregard for the consequences of your action for patient care. Patients rang a number in good faith expecting to contact the Hospital Group. Their calls, which were diverted to you, included complaints and enquiries about treatment. You felt it appropriate to delete these calls and thereby ignore them on the grounds that none were clinically urgent, or that patients could contact the Hospital Group by other means. In doing so, you were ignoring the fact that patients were unaware that their concerns were not being dealt with appropriately.
In all the circumstances, the Panel has determined that your fitness to practise is impaired pursuant to Section 35C(2) of the Medical Act 1983 as amended.
The Panel will now invite further submissions from both Counsel as to the appropriate sanction, if any, to be imposed on your registration. Submissions on sanction should include reference to the Indicative Sanctions Guidance, using the criteria as set out in the guidance to draw attention to the issues which appear relevant to this case.
Determination on sanction
Dr Rogers: Having already determined that your fitness to practice is impaired by reason of your caution, the Panel has now considered what sanction, if any, should be imposed in this case. In doing so, it has taken into account all the evidence, both oral and documentary, as well as the submissions made by Mr Friesner, on behalf of the General Medical Council (GMC), and those made by Mr Murphy, on your behalf.
Mr Friesner invited the Panel to consider the sanction of erasure. He submitted that this would be appropriate in the circumstances of this case.
Mr Murphy submitted that this is a case were there is no reason to go beyond the sanction of suspension. He further submitted that the Panel ought to consider the issue of proportionality and that it would be neither in your best interests nor in the interests of patients to erase your name from the medical register. He told the Panel that you co-operated fully with the police at the time of the incident and admitted your wrong doing, you expressed regret both to the police and to the Panel, that you had experienced significant provocation, that you made no financial gain from your actions and the police considered it appropriate to deal with this matter by cautioning you.
The Panel has borne in mind that the purpose of any sanction is not to be punitive, but is to protect patients and the public interest, which includes the protection of patients, the maintenance of public confidence in the profession, and declaring and upholding proper standards of conduct and behaviour.
It has also borne in mind the issue of proportionality and has had due regard to the guidance contained within the GMC’s Indicative Sanctions Guidance dated April 2005. The Panel is aware that it must not apply a greater sanction when a lesser one will be sufficient to protect the public interest.
The Panel has noted the testimonials and references submitted on your behalf, from which it is clear that you are held in high regard by your work colleagues and patients. This is also evidenced by your election as President of The Trichological Society in 2005.
Before considering the matter of sanction, the Panel considered whether to conclude your case with no further action. The Panel finds that your conduct represented both a risk to the good name of the profession and to patient safety. The Panel has therefore determined that to take no action would be inappropriate.
Having determined that it is necessary to take action on your registration, the Panel next considered whether it would be sufficient to place conditions on your registration. Any conditions would need to be appropriate, proportionate, workable and measurable. The Panel considered that the imposition of conditions would be inadequate to reflect the seriousness with which it views your actions and would not send a sufficiently strong message to either the public or the profession. In addition, it is of the view that your failings, in relation to dishonesty, are not amenable to correction by means of conditions. The Panel has therefore determined that in the circumstances of this case the imposition of conditions would not be appropriate.
The Panel then went on to consider whether it would be sufficient to impose a period of suspension of your registration. So far as your dishonest behaviour is concerned, the Panel notes the guidance contained in the Indicative Sanctions Guidance at paragraph 39 (S1-8) which states:
“There are some examples of misconduct where the Privy Council has upheld decisions to erase a doctor despite strong mitigation. This has been because it would not have been in the public interest to do otherwise given the circumstances concerned. The three most serious areas of concern are: sexual misconduct, dishonesty and failing to provide an acceptable level of treatment/care.”
The Guidance also states at paragraph 44 (S1-9):
“Dishonesty, even where it does not result in direct harm to patients … is particularly serious because it undermines the trust the public place in the profession. Examples of dishonesty in professional practice could include … failing to take reasonable steps to ensure that statements made in formal documents are accurate.”
The Panel then noted the Guidance given in relation to suspension at
S-14, which states:
“This sanction may be appropriate when some or all of the following factors are apparent (this list is not exhaustive):
A serious instance of misconduct but where a lesser sanction is not sufficient.
Not fundamentally incompatible with continuing to be a registered doctor.
No evidence of harmful deep-seated personality or attitudinal problems.
No evidence of repetition of behaviour since incident.
Panel is satisfied doctor has insight and does not pose a significant risk of repeating behaviour.
In cases where the only issue relates to the doctor’s health, there is a risk to patient safety if the doctor were allowed to continue to practise even under conditions.”
The Panel has also noted paragraph 28 (S1-6) of the Guidance which states:
“Suspension can be used to send out a signal to the doctor, the profession and the public about what is regarded as unacceptable behaviour … It is likely to be appropriate for misconduct that is serious, but not so serious as to justify erasure (for example where there may have been acknowledgement of fault and where the Panel is satisfied that the behaviour or incident is unlikely to be repeated).”
In many cases dishonesty will result in erasure. Although it was undoubtedly serious, the Panel is of the view that your dishonest behaviour does not lie at the upper end of the spectrum of dishonesty. The Panel considers that your dishonesty is not of such magnitude as to be fundamentally incompatible with being a doctor and that erasure of your name from the Medical Register would be a disproportionate response in this case.
It has therefore concluded that it would be sufficient in this case to impose a period of suspension.
Regarding the length of suspension to be imposed, the Panel has borne in mind the mitigation submitted on your behalf and your own expressions of regret and shame. You have accepted that you were wrong to act as you did. It notes your good character and is satisfied that you have learned a valuable lesson from this case, and is confident that your behaviour will not be repeated. Notwithstanding this, your behaviour represents a serious departure from the professional standards expected of a registered medical practitioner. Your dishonesty and your disregard of the interests of the patients of the Hospital Group are viewed seriously by this Panel. For this reason, and in order to send a message to the public and to the profession that such behaviour will not be tolerated, the Panel has determined that your registration should be suspended for a period of four months.
In deciding on both the order and the length of suspension the Panel has taken into account the interests of your patients, and the public interest which makes it desirable to permit you to resume practise at the first reasonable date consistent with marking the seriousness of your conduct. Weighing all the evidence placed before it, it considers this to be a proportionate and appropriate sanction.
The Panel next considered whether it should exercise its powers to order a review of your case under Rule 22 of the Procedure Rules. The Panel determined that, as the primary reason for imposing a period of suspension was to send a message to you, the public and the profession about your unacceptable behaviour, no purpose would be served by holding a review hearing of this case before the end of the period of suspension. The Indicative Sanctions Guidance at S1-7, paragraph 32 states:
“In some misconduct cases it may be self-evident that following a short period of suspension, there will be no value in a review hearing.”
The Panel concluded that this was such a case.
The effect of the foregoing direction is that, unless you exercise your right of appeal, your registration will be suspended for a period of four months, 28 days from the date when written notice is deemed to have been served upon you.
Having concluded that your name should be suspended from the Register, the Panel has considered whether to order the immediate suspension of your registration. The Panel is minded not to order an immediate suspension. However, it is willing to hear submissions from either Counsel if they so wish.
3 October 2007