public record - medical practitioners tribunal … · public record dates: 29/11/2017 - 06/12/2017...

Record of Determinations –

Medical Practitioners Tribunal

MPT: Dr HARRIS

1

PUBLIC RECORD Dates: 29/11/2017 - 06/12/2017 Medical Practitioner’s name: Dr Brian Benjamin HARRIS

GMC reference number: 0333766

Primary medical qualification: MRCS 1963 Royal College of Surgeons of England

Type of case Outcome on impairment New - Misconduct Impaired

Summary of outcome

Erasure Immediate order imposed

Tribunal:

Legally Qualified Chair Mr Alexander Jacobs

Medical Tribunal Member: Dr Sid Riddington

Medical Tribunal Member: Dr Edmund Morris

Tribunal Clerk: Miss Emma Saunders

Attendance and Representation:

Medical Practitioner: Not present and represented

Medical Practitioner’s Representative: Ms Fiona Horlick, Counsel, instructed by BLM (29 and 30 November 2017 only)

GMC Representative: Mr Carlo Breen, Counsel

Allegation and Findings of Fact That being registered under the Medical Act 1983 (as amended):

1. On 12 November 2013, the MPTS GMC Interim Orders Panel (‘IOP’) Tribunal (‘IOT) imposed an interim order of suspension (‘the Order’) for a period of 18 months on your registration. Found Proved



MPT: Dr HARRIS

2

2. On 13 November 2013, the MPTS GMC wrote to you confirming that the IOP IOT had imposed the Order. Found Proved 3. The MPTS GMC wrote to you on the dates as listed in Schedule 1, confirming that the Order had been reviewed and maintained. Found Proved 4. You carried out one or more patient consultations (‘the Consultations’) on or around the dates, as listed in Schedule 2 whilst your registration was suspended. Found Proved 5. You failed to disclose during the Consultations that the Order had been imposed on your registration. Found Proved 6. You knew or ought to have known that at the time of the Consultations, the IOP IOT had imposed the Order on your registration. Found Proved 7. Your conduct as described at paragraphs 4-5 4-6 was:

a. misleading; Found Proved b. dishonest. 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. Determination on Voluntary Erasure - 29/11/2017 Ms Horlick: 1. At the outset of this hearing, the tribunal acceded to an application for Dr Harris’s name to be voluntarily erased from the Medical Register to be held in private. XXX This determination will therefore be read in private. A redacted version



MPT: Dr HARRIS

3

will be published at the close of the hearing with those matters XXX having been removed. 2. You made an application on behalf of Dr Harris for voluntary erasure from the Medical Register in accordance with Regulation 3(8) of the General Medical Council (GMC) (Voluntary Erasure and Restoration following Voluntary Erasure) Regulations Order of Council 2004, as amended (‘the Regulations’).

Background 3. The tribunal noted that in your skeleton argument you stated that Dr Harris has admitted all the allegations he is facing with the sole exception of dishonesty. At this stage of the proceedings no admissions have formally been made but the allegation that Dr Harris faces is that he carried out patient consultations when his registration was suspended by the GMC Interim Orders Tribunal. It is further alleged that Dr Harris failed to disclose during the consultations that he was subject to an interim order of suspension, when he knew, or ought to have known, that at the time of the consultations he had an interim order of suspension imposed on his registration. His conduct is alleged to have been misleading and dishonest. XXX Your submissions XXX 6. XXX You reminded the tribunal that Dr Harris is now 77 years old, which is outside of the age of normal practice. XXX 7. You submitted that although the GMC “Guidance on making decisions on voluntary erasure applications” states that voluntary erasure is not permanent, in Dr Harris’s case XXX it would be permanent. You reminded the tribunal that Dr Harris has admitted all of the allegations against him apart from the issue of dishonesty XXX You then referred the tribunal to paragraph 16 of the GMC “Guidance on making decisions on voluntary erasure applications” which states:

“If the allegations are primarily about misconduct, a conviction or a determination concerning the doctor’s conduct, there are more likely to be arguments in favour of refusing the application for voluntary erasure. This is particularly likely to be the case if the allegations fall within the categories for which there is a presumption of impaired fitness to practise. In these particular circumstances, voluntary erasure is only likely to be appropriate in exceptional circumstances. XXX”

It was your submission that the GMC in its skeleton argument states that there are no exceptional circumstances in Dr Harris’s case but it does not state why. XXX



MPT: Dr HARRIS

4

GMC submissions 8. Mr Breen submitted that, in relation to Dr Harris’s witness statement, XXX he does not dispute that he carried out one or more patient consultations whilst his registration was suspended. It was Mr Breen’s submission that Dr Harris’s witness statement reflects clear admissions by Dr Harris to everything but dishonesty. XXX XXX The Tribunal’s Decision 10. The decision as to whether to accede to the application for voluntary erasure or not is a matter for this tribunal alone to determine, exercising its own judgement. In reaching a decision on this matter, the tribunal had regard to the Regulations, the relevant guidance and the submissions made by Mr Breen on behalf of the GMC and those made by you on behalf of Dr Harris. 11. The tribunal accepted the advice of the Legally Qualified Chair that it should have regard to all the circumstances of Dr Harris’s case, including the public interest. The public interest incorporates three elements:

The protection of patients and the public generally from doctors whose fitness to

practise is impaired;

The maintenance and promotion of public confidence in the medical profession;

The maintenance and promotion of public confidence in the GMC’s performance of

its statutory functions.

12. The tribunal noted that paragraph 6 of the GMC “Guidance on making decisions on voluntary erasure applications” states:

“Decisions makers should be satisfied that it is right in all the circumstances to agree to voluntary erasure (and not proceed with the inquiry proper) before any application is granted. XXX”

13. XXX The tribunal considers the matters currently before it at this hearing are sufficiently serious XXX to require an examination of the facts. 14. The tribunal has been advised that Dr Harris has made some admissions and it noted the witness statement which Dr Harris signed on 1 November 2017. It determined that in respect of these admissions there is some acceptance by him of wrongdoing. The tribunal has determined that even without the admission of dishonesty the allegations that Dr Harris has admitted are significant. These include consulting with patients whilst suspended, not disclosing this and an admission that his conduct was misleading.



MPT: Dr HARRIS

5

15. The tribunal accepts that Dr Harris’s desire to cease to be registered is genuine, that he has no intention to practise in the UK or elsewhere in the future and that there is no likelihood of his seeking restoration to the Medical Register. The tribunal accepts that voluntary erasure would ensure that patients are protected from any risk of harm by Dr Harris in the future. 16. However, the tribunal considered the impact upon public confidence in the Regulatory process should the allegation not be placed within the public domain and fully resolved. It concluded that the public would rightly expect that these matters, some of which Dr Harris admits, are fully considered by a tribunal XXX 17. The tribunal has had regard to paragraph 16 of the GMC “Guidance on making decisions on voluntary erasure applications” and XXX the tribunal did not consider that there were exceptional circumstances which would mean that voluntary erasure would be appropriate in his case. 18. The tribunal has determined that in order to maintain and promote public confidence in the medical profession and in the GMC’s performance of its statutory functions, Dr Harris’s voluntary erasure application should be refused. Determination on Application to amend the allegation - 30/11/2017 Ms Horlick: Application to amend the allegation - 30 November 2017 1. Mr Breen made an application for the amendment of paragraphs 2, 3 and 7 of the allegation to read as follows:

2. On 13 November 2013, the MPTS GMC wrote to you confirming that the IOT had imposed the Order. 3. The MPTS GMC wrote to you on the dates as listed in Schedule 1, confirming that the Order had been reviewed and maintained. … 7. Your conduct as described at paragraphs 4-6 was:

a. misleading; b. dishonest.

2. With reference to paragraphs 2 and 3 of the allegation, Mr Breen stated that the correspondence had been sent to Dr Harris by the MPTS and not the GMC. 3. As to paragraph 7 of the allegation, Mr Breen submitted that the GMC no longer took the view that it was correct to charge that a matter was ‘misleading’. He stated that it should only read that Dr Harris’s conduct at paragraphs 4 to 6 was



MPT: Dr HARRIS

6

dishonest. Mr Breen accepted that this amendment came at a late stage in the proceedings and stated that it was communicated to him on the afternoon of 29 November 2017. He submitted that there was no injustice in the amendments given that it was a deletion rather than an addition of a charge. Your submissions 4. You stated that the proposed amendments were particularly concerning as the GMC knew that Dr Harris would not XXX be present at this hearing. 5. You confirmed that you had no objection to the proposed amendments to paragraphs 2 and 3 of the allegation. 6. With regard to paragraph 7 of the allegation, you stated that Dr Harris signed a witness statement in which he made an acceptance of the matters being ‘misleading’. You questioned how long ago the policy relating to the charging decision changed and why there was no notification to Dr Harris before now. Further, you questioned why the GMC allowed Dr Harris’s witness statement to go before this tribunal if there was going to be a withdrawal of the allegation of ‘misleading’. You stated that you were not going to object to the amendment, as in one way it was to Dr Harris’s advantage, but you were concerned about the general injustice against him. Tribunal sought further information from the parties 7. Following a short adjournment for Mr Breen to take instructions at the request of the tribunal, Mr Breen stated that Dr Harris’s witness statement was received by the GMC on 6 November 2017 and that the decision not to pursue the allegation of ‘misleading’ arose out of advice given on 8 November 2017. Mr Breen informed the tribunal that the GMC’s internal interpretation of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67, raised concerns from 8 November 2017 whereby all charges containing the word ‘misleading’ were then reviewed by a GMC Principal Legal Adviser. Mr Breen accepted that a letter was not sent to Dr Harris that this amendment was going to be applied for. Your submissions 8. You stated that you did not see why Ivey should make any difference with regard to ‘misleading’. You stated that your interpretation was that the test remains the same, although the way that the tribunal look at objective/subjective is reversed. You said that you did not know how this had an impact on ‘misleading’. 9. You stated that you were concerned that the deletion of ‘misleading’ could well be prejudicial to Dr Harris, as it would leave this tribunal with a stark decision as to whether Dr Harris’s conduct was dishonest or not. Whilst it seems an internal



MPT: Dr HARRIS

7

decision was made, you stated that this was not communicated to you or Dr Harris, so were not able to amend Dr Harris’s witness statement before it was placed before this tribunal. Further request for information 10. The tribunal again sought further information from Mr Breen regarding the justification for the proposed deletion of ‘misleading’ and allowed him time to take instructions. 11. After seeking instructions, Mr Breen stated that he was instructed not to proceed with the application to amend paragraph 7 of the allegation, namely to delete the charge of ‘misleading’ from the allegation. Tribunal Decision 12. The tribunal accepted the advice of the Legally Qualified Chair that it should have regard to whether the amendments to the allegation could be made without injustice to either party. 13. The tribunal determined to make the following amendments to the allegation:

1. On 12 November 2013, the MPTS GMC Interim Orders Panel (‘IOP’) Tribunal (‘IOT) imposed an interim order of suspension (‘the Order’) for a period of 18 months on your registration. 2. On 13 November 2013, the MPTS GMC wrote to you confirming that the IOP IOT had imposed the Order. 3. The MPTS GMC wrote to you on the dates as listed in Schedule 1, confirming that the Order had been reviewed and maintained. … 6. You knew or ought to have known that at the time of the Consultations, the IOP IOT had imposed the Order on your registration.

14. Of its own motion, the tribunal determined to amend paragraph 1 as shown above. It also determined to amend paragraphs 2 and 6 of the allegation to change the words ‘Interim Orders Tribunal’ to ‘Interim Orders Panel’, and the subsequent abbreviations of ‘IOT’ to ‘IOP’. It concluded that this was a factual inaccuracy and that the amendments could be made without injustice. Neither party objected to such amendments. 15. The tribunal determined to accede to Mr Breen’s application to amend the wording GMC to MPTS in paragraphs 2 and 3. It also found that these were factual inaccuracies and determined that the amendments could be made without injustice.



MPT: Dr HARRIS

8

16. The tribunal noted that the application regarding the amendment of paragraph 7 of the allegation was withdrawn by Mr Breen. Determination on Recusal Application and Application for adjournment - 30/11/2017 Ms Horlick: 1. The tribunal agreed that these two applications should be heard in private XXX 2. A redacted version of this determination will be published following the conclusion of this hearing XXX Recusal Application - 30 November 2017 3. You made an application, on behalf of Dr Harris, that this tribunal should recuse itself as it would be unable to fairly adjudicate on the allegations in question. XXX 4. XXX You also confirmed that this hearing was not covered by indemnity insurance and stated that Dr Harris does not have sufficient funds to afford any further representation. You stated that Dr Harris will not be represented after these applications and therefore there would be nobody to present submissions on his behalf on the outstanding matter of dishonesty. You stated that Dr Harris was not contesting the allegation of ‘misleading’ but you stated that someone can mislead another without intending to do so. GMC submissions XXX XXX Mr Breen submitted that there was no injustice in continuing with this matter and that the public interest dictates that there should be no recusal. The Tribunal’s Decision 7. The tribunal accepted the advice of the Legally Qualified Chair that Dr Harris has the right to an independent and impartial tribunal under Article 6 of the European Convention of Human Rights. He made reference to the case of Porter v Magill [2002] UK HL67, that:

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”



MPT: Dr HARRIS

9

8. The Legally Qualified Chair advised that the tribunal should look at the question of recusal on the facts and submissions provided and come to its own conclusion. He stated that the tribunal should consider whether there was a potential risk that it would be biased or lack impartiality. If not then it should consider what a fair-minded and informed observer would think as to whether there was a risk of bias. XXX It concluded that it would be able to continue. 10. The tribunal then had regard to what a fair-minded and informed observer may conclude. XXX the tribunal determined to refuse your application for recusal. Application for adjournment - 30 November 2017 11. You made an application, on behalf of Dr Harris, for an adjournment of this hearing. You stated that, after today, nobody will be present to make submissions on Dr Harris’s behalf. XXX You submitted that there was no urgency to hear this case. You stated that Dr Harris is not practising now XXX. You stated that neither party requires the witnesses to attend. 12. You stated that it was in the public interest and Dr Harris’s own interests for this matter to be adjourned XXX XXX GMC submissions 14. Mr Breen XXX asked the tribunal why it should adjourn the hearing. XXX He submitted that no purpose would be served in postponing this hearing. 15. Mr Breen XXX stated that it was not appropriate to “kick these matters into the long grass”. 16. Mr Breen stated that, whilst the GMC does not propose to call any of the witnesses in this case, this tribunal may wish to hear from them. He suggested that any adjournment would have an effect on the witnesses and their memory. 17. As to Dr Harris’s indemnity insurance, Mr Breen submitted it was not a material factor for this tribunal. 18. Mr Breen submitted that that the public interest dictates that this matter should be heard now and no adjournment granted.



MPT: Dr HARRIS

10

The Tribunal’s Decision 19. The tribunal accepted the advice of the Legally Qualified Chair that there were a number of factors to consider including the impact of any delay and the public interest in dealing with matter expeditiously, but not at the cost of a fair hearing. XXX 21. The tribunal was conscious that Dr Harris is accused of serious matters and that there is a clear public interest in hearing this matter. Whilst Dr Harris is not currently working XXX the public is protected but this matter does need to be resolved. 22. The tribunal had regard to your submissions that there was no guarantee that Dr Harris would be financially covered to have legal representation in any further matters. It noted that Dr Harris has a right to be represented by anyone, lawyer or otherwise. In addition or alternatively, he, or someone assisting him, could send in any written submissions or evidence on his behalf. 23. The tribunal determined to refuse your application for an adjournment of this hearing. It was of the view that there would be no benefit in the open-ended delay of this matter and that it would be fair and in the public interest to continue with this hearing. Determination on Facts - 05/12/2017 Mr Breen: Hearing in Private 1. The tribunal agreed that the remainder of the hearing should be heard in private XXX. 2. A redacted version of this determination will be published following the conclusion of this hearing XXX. Representation and Proceeding in Absence 3. Ms Horlick was present and represented Dr Harris during Day 1 and 2 of this hearing only. On Day 3 of the hearing, the tribunal determined to proceed in Dr Harris’s absence. It was conscious that Dr Harris had indicated in his witness statement dated 1 November 2017 that he was “happy for the hearing to proceed in my absence”, taking into account the content of his statement. Ms Horlick also confirmed that to be the position before her departure on Day 2.



MPT: Dr HARRIS

11

4. At the end of Day 2 the tribunal indicated to Ms Horlick that it would consider any written submissions provided by Dr Harris or his legal representatives received by 9am on Day 4, or from him or his representative in person on that day. 5. Ms Price, BLM Solicitors, sent an email to the MPTS dated 4 December 2017, in which she attached evidence on behalf of Dr Harris. She confirmed that “Dr Harris will not be attending the hearing and is happy for the tribunal to proceed in his absence”. The attachments included a witness statement of Mrs A XXX, a selection of “thank you” cards and a number of character statements XXX. 6. The tribunal determined that it was fair and appropriate to proceed in Dr Harris’s absence and would take the additional evidence provided into account. Application to amend the allegation - 4 December 2017 7. Of the tribunal’s own volition, it raised the question of an amendment to paragraph 7 of the allegation to read as follows:

“7. Your conduct as described at paragraphs 4-5 4-6 was: a. misleading; b. dishonest.”

8. The tribunal questioned how paragraph 7 of the allegation made sense in relation to paragraph 6. It was of the view that paragraph 6 of the allegation goes to Dr Harris’s ‘mens rea’ regarding whether he had knowledge at the time of the consultations that the IOP had imposed the order on his registration. It could not see how the fact that a person had knowledge or not could be misleading or dishonest. Rather, it was the alleged failure to disclose and/or to carry out the consultations which could be misleading and/or dishonest. 9. You submitted that paragraph 6 of the allegation is the only paragraph regarding Dr Harris’s knowledge. You stated that the GMC is looking at paragraph 7 as part of a chain of events, i.e. if Dr Harris knew he was suspended, and had that knowledge, then the consultation and the failure to disclose are the actions. You said that the tribunal should still consider paragraph 7 in relation to paragraphs 4, 5 and 6. 10. After taking further instructions, you stated that the GMC view remains as stated, that paragraph 6 is also designed to infer that the knowledge was misleading and/or dishonest conduct. You stated that the view of the GMC is that Dr Harris knew that the IOP had imposed the order and he still went on to treat. You appreciated what is said in paragraphs 4 and 5, but that is the view of the GMC.



MPT: Dr HARRIS

12

Tribunal Decision 11. The tribunal determined to amend the allegation as proposed. It concluded that ‘conduct’ as set out in paragraphs 4 and 5 of the allegation had the potential to be misleading and/or dishonest. The tribunal did not consider that ‘knowledge’, in itself, had the same potential. The tribunal was of the view that paragraph 6 was establishing a state of mind that led Dr Harris to the ‘conduct’ as set out in paragraphs 4 and 5. 12. The tribunal did not accept that any proper basis for consideration had been presented that ‘knowledge’, on the part of Dr Harris, could be misleading or dishonest. 13. The tribunal concluded that there would be no injustice to Dr Harris as the amendment does not materially alter the allegations against him. Although you maintained your instructions to resist any amendment, the tribunal could not identify any injustice to the GMC in making the amendment as the essential conduct alleged against Dr Harris would remain the same. The tribunal concluded that it was important that the allegation and the question facing the tribunal was a clear one. Background 14. Dr Harris qualified in 1964 and worked as an SHO in Westminster Hospital, completed general practice training and became a consultant psychiatrist in general adult psychiatry in 1980. Dr Harris held the post of Medical Director for the Cardiff Community Trust from 1996 to 2000, initially retiring but returning to work after a short period at Powys Teaching Health Board until 2005. He worked as a consultant at the Royal Glamorgan Hospital from 2005, retiring from that post in 2011 but continuing private work and locum work for Aneurin Bevan Health Board. Dr Harris has also held a number of lecturer positions during his career. 15. The allegation that has led to Dr Harris’s hearing relates to an MPTS Interim Orders Panel (IOP) hearing on 12 November 2013, when an interim order of suspension was imposed on Dr Harris’s registration and was subsequently reviewed and maintained. It is alleged by the GMC that Dr Harris carried out a number of patient consultations from 2013 to 2014 whilst his registration was suspended. It is further alleged by the GMC that he failed to disclose the interim order to his patients when he knew, or ought to have known, that the interim order was in place. The GMC alleges that Dr Harris’s conduct was misleading and dishonest. 16. The initial concerns were raised with the GMC on 29 September 2015 by another doctor who had seen one of his own patients. The patient had also been seen Dr Harris and was due to see Dr Harris again and wished to discuss the medication that he had prescribed. The doctor made enquiries about Dr Harris and was concerned that Dr



MPT: Dr HARRIS

13

Harris appeared to have been suspended from the GMC Register since 2013. The GMC carried out its investigation, taking witness statements in relation to five patients. Witnesses and Evidence 17. The tribunal gave careful consideration to the documentary evidence before it, including the submissions made by you on behalf of the GMC, and the written documents provided by Dr Harris’s legal representatives on his behalf. 18. The tribunal had regard to the documentary evidence provided by the parties. This evidence included, but was not limited to, GMC witness statements from Ms B, GMC Investigation Officer, and statements from five patients or their relatives. 19. Dr Harris provided his own witness statement dated 1 November 2017. The tribunal also had regard to a number of documents provided by Dr Harris’s legal representatives, on his behalf, including a statement from Mrs A, a selection of “thank you” cards and a number of character statements. Tribunal’s Approach 20. The tribunal determined each paragraph of the allegation separately and in doing so took account of all of the documentary and oral evidence adduced in this case. 21. The tribunal also bore in mind that the burden of proof rests on the GMC and that it is for the GMC to prove the allegation. The standard of proof is that which is applicable to civil proceedings, which is proof on the balance of probabilities. XXX Tribunal’s Findings 23. The tribunal has considered each paragraph of the allegation separately and has made the following findings of fact: Paragraph 1:

“On 12 November 2013, the MPTS GMC Interim Orders Panel (‘IOP’) Tribunal (‘IOT) imposed an interim order of suspension (‘the Order’) for a period of 18 months on your registration.” Found Proved

24. The tribunal took account of Ms B’s witness statement dated 14 December 2016, in which she stated:



MPT: Dr HARRIS

14

“On 12 November 2013, the GMC Interim Orders Tribunal (‘IOT’) (formerly Interim Orders Panel) imposed a period of 18 months suspension on Dr Harris’s registration.”

25. Ms B provided the tribunal with a print out from the List of Registered Medical Practitioners which stated that Dr Harris’s suspension had been in place since 12 November 2013. 26. Ms B also exhibited a letter sent to Dr Harris by the MPTS on 13 November 2013. The letter stated that Dr Harris had been present and represented at a panel hearing on 12 November 2013 in consideration of whether it was necessary to impose an interim order. The letter stated that:

“the panel has determined that it is necessary to impose an interim order of Suspension for a period of eighteen months.”

27. In Dr Harris’s witness statement dated 1 November 2017, he stated:

“Although I cannot recall the dates or the details, I do not dispute that on 12 November 2013, the GMC Interim Orders Panel (as it was known at the time) imposed an interim order of suspension for a period of 18 months on my registration…”

28. The tribunal had regard to all of the information before it and determined that the MPTS IOP did impose an interim order of suspension for a period of 18 months on Dr Harris’s registration on 12 November 2013. Accordingly, the tribunal found this paragraph of the allegation proved. Paragraph 2:

“On 13 November 2013, the MPTS GMC wrote to you confirming that the IOP IOT had imposed the Order.” Found Proved

29. The tribunal had regard to Ms B’s witness statement dated 14 December 2016, where she provided the tribunal with a letter that had been sent by the MPTS to Dr Harris’s registered address on 13 November 2013. The letter provided Dr Harris with a full copy of the interim orders panel decision and also stated that:

“Your registration will therefore be suspended for a period of 18 months beginning on 12 November 2013. This order will be subject to review within 6 months”




MPT: Dr HARRIS

15

“Although I cannot recall the dates or the details, I do not dispute that… on 13 November 2013, the GMC wrote to confirm that the IOP had imposed the order.”

31. In light of the above, the tribunal determined that the MPTS did write to Dr Harris on 13 November 2013 to confirm that the IOP had imposed the Order. As such, the tribunal found this paragraph of the allegation proved. Paragraph 3:

“The MPTS GMC wrote to you on the dates as listed in Schedule 1, confirming that the Order had been reviewed and maintained.” Found Proved “Schedule 1 24 April 2014 30 September 2014 6 March 2015 13 July 2015 16 December 2015 2 August 2016”

32. In Ms B’s witness statement dated 14 December 2016, she stated:

“The interim order of suspension was reviewed and maintained by the GMC IOT on 23 April 2014, 29 September 2014 and 5 March 2015. I note from Siebel [GMC case management software system] that the High Court extended the interim order of suspension on 29 April 2015 for a period of 12 months up to and including 11 May 2016. The interim order was reviewed and maintained on 10 July 2015 and 15 December 2015. The High Court extended the interim order of suspension again on 9 May 2016 for a period of 12 months up to and including 11 May 2017, which was reviewed and maintained on 1 August 2016. I attach copies of the correspondence sent to Dr Harris confirming his suspension including acknowledgements in writing from Dr Harris to some of the correspondence.”

33. Ms B provided the tribunal with copies of the outcome letters sent by the MPTS to Dr Harris dated 24 April 2014, 30 September 2014, 6 March 2015, 13 July 2015, 16 December 2015 and 2 August 2016. These dates correspond with the dates set out in Schedule 1. 34. Dr Harris signed and returned acknowledgement slips for the MPTS letters dated 24 April 2014, 30 September 2014 and 2 August 2016.



MPT: Dr HARRIS

16


“I also do not question that the GMC wrote to me on the dates as listed at Schedule 1, confirming that the order had been reviewed and maintained.”

36. The tribunal concluded that six outcome letters were sent by the MPTS to Dr Harris on the six dates set out with Schedule 1. Accordingly, the tribunal found this paragraph of the allegation proved. Paragraph 4:

“You carried out one or more patient consultations (‘the Consultations’) on or around the dates, as listed in Schedule 2 whilst your registration was suspended.” Found Proved

“Confidential Schedule 2 10 December 2013 – Ms C February 2014 – Mr D 11 March 2014 - Ms C 25 March 2014 – Mr D 1 April 2014 – Mr E 22 April 2014 – Mr D 13 May 2014 – Mr D 27 June 2014 – Mr D 13 July 2014 – Mrs F August 2014 – Mrs F 18 September 2014 – Mrs F 23 October 2014 – Mrs F 23 October 2014 – Mr D 24 October 2014 – Ms C 13 November 2014 – Mr G 20 December 2014 – Mr D”

37. The tribunal noted that the dates of the consultations as set out in Schedule 2 range from 10 December 2013 to 20 December 2014. The tribunal was conscious that the interim order of suspension was imposed on Dr Harris’s registration on 12 November 2013 and he remains suspended without any break or alteration in the order. The tribunal concluded that all of the dates of the consultations in question were within the time period when Dr Harris was suspended by the IOP. 38. The tribunal took account of Dr Harris’s witness statement dated 1 November 2017 in respect of all of the alleged consultations. Dr Harris stated:



MPT: Dr HARRIS

17

“Again, although I do not have any clear recollection of the dates or details of the reasons for the consultations or the consultations themselves, I do not dispute that I carried out one or more patient consultations on or around the dates, as listed in Schedule 2 whilst my registration was suspended… I do not recall seeing all these patients and am surprised by the number, but I have read their statements and would not wish to dispute what they have said in those statements.”

Ms C 39. The tribunal considered the three consultations in relation to Ms C on 10 December 2013, 11 March 2014 and 24 October 2014. It had regard to Ms C’s witness statement dated 8 January 2017 in which she stated:

“According to my Santander cheque book I can confirm that I have cheque stubs that represent payments for medical consultations with Dr Harris on 10 December 2013, 11 March 2014 and 6 November 2014. I would write a cheque in the sum of £70.00 to Dr Harris or a charity that Dr Harris would want the cheque to be made payable to on the same day that an appointment was arranged for. Therefore, the dates that the cheques were written to Dr Harris coincide with dates of my appointments.”

40. In Ms C’s supplementary witness statement dated 5 March 2017, she stated:

“I refer to having a cheque stub in respect of payment for a consultation on 6 November 2014 with Dr Harris. I have been unable to locate a cheque stub or diary entry confirming an appointment with Dr Harris on 6 November 2014. … I refer to not being able to recall an appointment with Dr Harris on 24 October 2014. I have now located an entry on 24 October 2014 in my diary for 7pm… I therefore believe that I attended a consultation with Dr Harris on this date.”

41. The tribunal took account of the handwritten notes taken by Dr Harris of the consultation which list appointments on 10 December 2013 and 24 October 2014. It has also had regard to the cheque stubs provided by Ms C which listed two of those dates as detailed above. 42. The tribunal determined that Dr Harris did carry out the three patient consultations with Ms C on or around the dates listed in Schedule 2 whilst his registration was suspended.



MPT: Dr HARRIS

18

Mr D 43. The tribunal considered the consultations in relation to Mr D during February 2014 and on 22 April 2014, 13 May 2014, 27 June 2014, 23 October 2014 and 20 December 2014. 44. Looking at each date in turn, the tribunal had regard to the February 2014 consultation. The tribunal took account of the letter from Dr Harris to Mr D’s General Practitioner (GP) dated 28 February 2014, in which Dr Harris stated:

“As you know I have been seeing this man very regularly over the past 6 months…”

45. In email correspondence dated 26 February 2014, Mr D confirmed that he had received Dr Harris’s message and asked when he wanted to “arrange our next appointment”. 46. The tribunal also took account of the witness statement of Mrs H dated 8 December 2016, in which she stated:

“I can confirm that the first email exchange I have retrieved between Dr Harris and [Mr D] was on 26 February 2014. This email exchange appears to be following an appointment that took place in February 2014 and this is further corroborated by the letter, dated 28 February 2014 sent by Dr Harris to [Mr D]’s GP following the appointment, which has been produced to me by the GMC.”

47. The tribunal determined that, during February 2014, Dr Harris did have a patient consultation with Mr D. It was of the view that the follow up letter to the GP and the email correspondence was confirmation of this. 48. With regard to the alleged consultation with Mr D on 25 March 2014, the tribunal again had regard to the statement from Mrs H dated 8 December 2016, in which she stated:

“I have checked the emails and can confirm that the next appointment that [Mr D] arranged with Dr Harris was for 25 March 2014 at 20:00.”

49. Mrs H provided a copy of that email correspondence including a reply from Dr Harris in which he stated “Fine BH”. 50. The tribunal also looked again at the letter from Dr Harris to Mr D’s GP dated 28 February 2014, in which Dr Harris stated that Mr D was “due to see me again in about 3 weeks time” which would coincide with the March 2014 appointment date.



MPT: Dr HARRIS

19

51. In light of the above, the tribunal determined that, on or around the date of 25 March 2014, Dr Harris did have a patient consultation with Mr D. 52. With regard to the alleged consultation with Mr D on 22 April 2014, the tribunal took account of the statement from Mrs H dated 8 December 2016, in which she stated:

“A further appointment was arranged on 22 April 2014, according to the emails that I have retrieved.”

53. In an email dated 15 April 2014, Mr D arranged to see Dr Harris the following Tuesday. In an email dated 22 April 2014 at 17:45, Dr Harris stated “Hope you got my message to come a bit later ie 8.45”. 54. The tribunal took account of a letter from Dr Harris to Mr D’s GP dated 2 May 2014, in which Dr Harris stated:

“I saw [Mr D] again recently, as I have mentioned before he can be quite irregular in keeping appointments but at least he turned up.”

55. The tribunal determined that, on or around the 22 April 2014, Dr Harris did have a patient consultation with Mr D. It concluded that this was supported by Mrs H’s statement, the following up letter to the GP and the email correspondence. 56. With regard to the alleged consultations with Mr D on 13 May 2014, 27 June 2014 and 20 December 2014, the tribunal was mindful of Mrs H’s witness statement dated 8 December 2016 where she stated:

“The email exchanges between Dr Harris and [Mr D] confirm that further appointments were arranged on 13 May 2014, 27 June 2014, August 2014 and 20 December 2014. I recall that the appointments on 13 May 2014 and 20 December 2014 took place at our home address at [Mr D]’s request.”

57. In email correspondence dated 13 May 2014, Dr Harris stated “See you at 8.15” and Mr D replied “Let me know if you get lost, and I will talk you in.” Subsequent email correspondence on 25 June 2014 from Dr Harris stated that he would be unable to make the appointment on 26 June and asked Mr D if he could make the 27 June 2014 at 4pm. Mr D confirmed that he could. 58. The tribunal also had regard to an email from Dr Harris to Mr D dated 21 December 2014, in which Dr Harris stated that he had seen Mr D “yesterday” and had spoken to an expert. 59. The tribunal determined that, on or around the 13 May 2014, 27 June 2014 and 20 December 2014, Dr Harris did have patient consultations with Mr D. It



MPT: Dr HARRIS

20

concluded that there was clear email correspondence setting the consultation dates and noted that Mrs H remembered that two of those appointments took place at their home address. 60. With regard to the alleged consultation with Mr D on 23 October 2014, the tribunal took account of Mrs H’s witness statement dated 8 December 2016, in which she stated:

“To my knowledge there were further appointments that were arranged by [Mr D] verbally over the telephone with Dr Harris. This was the case as [Mr D] visited Dr Harris approximately once a month when his work abroad enabled this throughout 2014. This is also corroborated by Dr Harris’s follow up letter to [Mr D]’s GP dated 23 October which has been produced to me by the GMC.”

61. The tribunal was mindful of a letter from Dr Harris to Mr D’s GP dated 23 October 2014, in which Dr Harris stated:

“I saw [Mr D] recently…” 62. In an email from Dr Harris to Mr D on 1 November 2014, Dr Harris stated that he had expected Mr D the previous Thursday. In response, Mr D stated:

“My deepest apologies for not attending, I did call you on your landline and sent you an email… Can we reschedule please.”

63. The tribunal found that there was a patient consultation with Mr D on or around the 27 June 2014 but there appears to have been a missed appointment on or around the 23 October 2014. The tribunal felt that the follow up letter that Dr Harris sent to Mr D’s GP may have related to the June 2014 appointment. The tribunal could therefore not conclude that there had been a consultation on or around 23 October 2014. Mr E 64. The GMC alleges that a consultation took place on or around the 1 April 2014 between Mr E and Dr Harris. The tribunal had regard to the witness statement of Mrs I dated 8 February 2017, in which she stated:

“I recall that [Mr E] attended a private appointment with Dr Harris in early 2014.This was the only appointment that [Mr E] had with Dr Harris. I recall that I was not intending to sit in the appointment however I was invited in by Dr Harris. …



MPT: Dr HARRIS

21

I can see from the hand written medical record that [Mr E]’s appointment took place on 1 April 2014 and the letter to [Mr E]’s GP… appears to reflect the appointment that [Mr E] had with Dr Harris. … The appointment lasted for approximately 60 minutes and Dr Harris discussed [Mr E]’s medical history and significant events that had occurred in [Mr E]’s life. Dr Harris also discussed the medication that [Mr E] was taking… and advised him to continue with the course of treatment that was being provided via [Mr E]’s GP. … I paid for the appointment in cash and was not provided with a receipt or any other paperwork from Dr Harris following the appointment.”

65. The tribunal had regard to the handwritten consultation notes referred to by Mrs I. The notes completed by Dr Harris are dated 1 April 2014 and set out a history taken from Mr E. The tribunal also took account of the letter from Dr Harris to Mr E’s GP dated 2 May 2014 in which he stated:

“I am dropping you a note concerning this man who I saw recently together with his wife...”

66. The tribunal determined that, on the balance of probabilities, it was more likely than not that a consultation with Mr E was carried out by Dr Harris, on or around 1 April 2014. The tribunal noted that the contemporaneous notes completed by Dr Harris during the consultation are dated 1 April 2014 and so it was reasonable to conclude that the consultation took place on or around this date. Mrs F 67. The tribunal considered the four consultations in relation to Mrs F on 13 July 2014, August 2014, 18 September 2014 and 23 October 2014. 68. With regard to the alleged consultation on 13 July 2014, the tribunal took account of Mrs F’s witness stated dated 22 November 2016, in which she stated:

“I have had produced to me by the GMC copies of my medical records, which Dr Harris had sent to my GP… I can confirm that… appears to reflect the appointments I had with Dr Harris in 2014.”

69. In a letter from Dr Harris to Mrs F’s GP dated 13 July 2014, Dr Harris stated:

“[Mrs F] brought her appointment forward recently…”



MPT: Dr HARRIS

22

70. The tribunal took account of Mrs F’s statement and of the follow up letter by Dr Harris. The tribunal determined that, on or around the 13 July 2014, there was a consultation between Mrs F and Dr Harris. 71. With regard to the alleged consultation in August 2014, the tribunal took account of Mrs F’s witness statement dated 22 November 2016, in which she stated:

“I can recall one further appointment with Dr Harris around August 2014. I requested an urgent appointment with Dr Harris as I recall that it was relating to a situation that I was very upset about.”

72. The tribunal determined that, on the balance of probabilities, Dr Harris did carry out a consultation with Mrs F in August 2014. It was of the view that she was particularly able to recall this appointment given the upsetting circumstances surrounding that date. 73. With regard to the alleged consultation on 18 September 2014, the tribunal took account of the letter from Dr Harris to Mrs F’s GP dated 18 September 2014. The tribunal concluded that this was a follow up letter to the GP however the tribunal found no other evidence of a September 2014 consultation. 74. The tribunal found that it was more likely than not that the letter to Mrs F’s GP related to the August appointment, especially given Mrs F’s statement that she had requested an urgent appointment in August 2014. The tribunal determined that it could not conclude that Dr Harris carried out a patient consultation with Mrs F on or around 18 September 2014. 75. With regard to the alleged consultation on 23 October 2014, the tribunal took account of the letter from Dr Harris to Mrs F’s GP of that date. In the letter, Dr Harris described “a recent appointment”. The tribunal determined that this was in line with the record keeping practice of Dr Harris where he did not pinpoint a specific date but that it referred to a “recent” consultation. The tribunal determined that, on or around the 23 October 2014, Dr Harris carried out a patient consultation with Mrs F. Mr G 76. The GMC alleges that a consultation took place on or around the 13 November 2014 between Mr G and Dr Harris. The tribunal had regard to Mr G’s witness statement dated 28 November 2016, in which he stated:

“I think I saw Dr Harris two or three times following his suspension. The final appointment that I had with Dr Harris was in November 2014. I have had produced to me by the GMC my medical records, which were retrieved from Dr Harris’s property…”



MPT: Dr HARRIS

23

77. The tribunal also had regard to a letter from Dr Harris to Mr G’s GP dated 13 November 2014, in which Dr Harris stated:

“I saw this man again recently, he was accompanied by his wife… I have given him an appointment for 6 months time.”

78. In light of the above, the tribunal determined that, on or around 13 November 2014, Dr Harris did carry out a patient consultation with Mr G. 79. In conclusion, the tribunal found that Dr Harris carried out a number of patient consultations as set out in Schedule 2, whilst his registration was suspended. It was unable to conclude that consultations took place with Mr D and Mrs F on 23 October 2014 and 18 September 2014, respectively. However as the allegation relates to one or more consultations, the tribunal found paragraph 4 of the allegation proved. Paragraph 5:

“You failed to disclose during the Consultations that the Order had been imposed on your registration.” Found Proved

80. The tribunal took account of Ms C’s witness statement dated 8 January 2017, in which she stated:

“I was never informed by Dr Harris that he had been suspended from practising during the appointments that took place after November 2013. If I had knowledge that Dr Harris had been suspended I would not have sought medical care and treatment from him.”

81. The tribunal had regard to the witness statement of Mrs H dated 8 December 2016, concerning the assessment and/or treatment her late husband, Mr D. She stated:

“I confirm that Dr Harris never informed [Mr D] or myself during the appointments that I attended with [Mr D], that he had been suspended from practising on 12 November 2013. I also do not believe that Dr Harris ever informed [Mr D] that he had been suspended, as this is something [Mr D] would have discussed with me if he had.”

82. The tribunal also had regard to the witness statement of Mrs I dated 8 February 2017, concerning the assessment and/or treatment of her late husband, Mr E. She stated:



MPT: Dr HARRIS

24

“I can confirm that [Mr E] and I were not informed by Dr Harris at any time, nor did we have the knowledge that he had been suspended from practice.”

83. In a witness statement dated 22 November 2016, Mrs F stated:

“I can confirm that for the duration of time when I was in Dr Harris’s care I had not been informed by Dr Harris, nor did I have the knowledge, that he was suspended from practice.”

84. The tribunal took account of the witness statement from Mr G dated 28 November 2016, in which he stated:

“I was not informed by Dr Harris at any point after the 12 November 2013 that he had been suspended.”

85. A witness statement dated 14 February 2017 was also provided by Mrs J, Mr G’s wife, in which she stated:

“I confirm that Dr Harris did not inform me and/or [Mr G] during any of the consultations after 12 November 2013 that he had been suspended from practice.”


“Again, although I do not have any clear recollection of the dates or details of the reasons for the consultations or the consultations themselves, I do not dispute that… I failed to disclose during the consultations that the order had been imposed on my registration.”

87. The tribunal determined that Dr Harris did not tell the patients during their consultations that he was suspended given the statements detailed above. 88. The tribunal then went on to consider whether Dr Harris had a duty to disclose the interim order during the consultations. It considered the wording of the outcome letters from the MPTS to Dr Harris which stated:

“Good medical practice requires doctors to be honest and trustworthy at all times, in order to maintain public trust in the profession, therefore you must respond appropriately if asked for information about your fitness to practise history.”

89. The tribunal also considered the wording of paragraph 76 of Good Medical Practice, which states:



MPT: Dr HARRIS

25

“If you are suspended by an organisation from a medical post, or have restrictions placed on your practice, you must, without delay, inform any other organisations you carry out medical work for and any patients you see independently.”

90. The tribunal was of the view that there was a specific duty upon Dr Harris that he should be open and transparent with his patients. It concluded that Dr Harris had a duty to disclose the interim order on his registration during the consultations, and that patients would expect a doctor to do so. The Tribunal has noted Dr Harris’s statement where he acknowledged the failure to disclose. 91. The tribunal determined that Dr Harris failed to disclose his interim order during consultations where he had a clear duty to do so. Accordingly, the tribunal found this paragraph of the allegation proved. Paragraph 6:

“You knew or ought to have known that at the time of the Consultations, the IOP IOT had imposed the Order on your registration.” Found Proved

92. The tribunal took account of Ms B’s witness statement dated 14 December 2016, which detailed correspondence to Dr Harris dated 13 November 2013, 24 April 2014, 30 September 2014, 6 March 2015, 13 July 2015, 16 December 2015 and 2 August 2016, which included the statement:

“Under Section 41C of the Medical Act your licence will be withdrawn for the period of the Suspension of your registration. This means that, amongst other things, it is not open to you to hold any appointment as a medical practitioner for which registration and a licence are required. In addition, the other privileges which attach to the licence to practise, are also not open to you whilst your registration is suspended. You should not undertake activities, such as prescribing or signing statutory certificates whilst you are Suspended. It is your responsibility to check (with the GMC) the appropriateness and legality of any activity proposed, whilst your registration is suspended.”

93. The letters from the MPTS to Dr Harris, confirming the outcome of each IOP hearing, included an acknowledgement slip page which Dr Harris was asked to return. On 2 May 2014, the MPTS received a signed acknowledgement slip dated 29 April 2014 which confirmed that:

“I have received the letter from the Medical Practitioners Tribunal Service dated 24 April 2014 which confirms the outcome of the interim orders panel hearing which took place on 23 April 2014.”



MPT: Dr HARRIS

26

94. On 6 October 2014, the MPTS received a signed acknowledgement slip dated 1 October 2014 from Dr Harris in reference to the receipt of an MPTS outcome letter dated 30 September 2014, following an interim orders panel hearing on 29 September 2014. 95. On 31 August 2016, the MPTS received a signed acknowledgement slip dated 19 August 2016 from Dr Harris to confirm receipt of the MPTS outcome letter dated 2 August 2016, following an interim orders tribunal hearing on 1 August 2016. 96. In Dr Harris’s witness statement dated 1 November 2017, he stated:

“Having considered the evidence provided by the GMC, I accept that I would have known at the time of the consultations, the IOP had imposed the order on my registration. I also accept that I should have informed my patients that I had been suspended from practising as a doctor from 12 November 2013 and that as a result I could not continue to act as their psychiatrist.”

97. The tribunal determined that Dr Harris knew, or ought to have known, at the time of the consultations that the IOP had imposed the order on his registration. The tribunal had regard to Dr Harris’s attendance at the original IOP hearing on 12 November 2013 and his subsequent signed acknowledgement slips in respect of three of the MPTS outcome letters. The tribunal concluded that all of the MPTS outcome letters to Dr Harris clearly set out that an interim order had been imposed and then remained in place after subsequent review hearings. Accordingly, the tribunal found this paragraph of the allegation proved in respect of both paragraphs 4 and 5. Paragraph 7:

“Your conduct as described at paragraphs 4-5 4-6 was:

a. misleading; Found Proved b. dishonest.” Found Proved

Paragraph 7(a) 98. The Legally Qualified Chair reminded the tribunal of the meaning of the word ‘misleading’. He referred to the comments of Mr Justice Bean, in the case of Shamsian v GMC [2011] EWHC 2885 (Admin), who in paragraph 5 of his judgment affirmed the definition as follows:



MPT: Dr HARRIS

27

“The GMC's guidance defines a misleading statement as one which leads someone to believe something is true when it is not true. There is no implication of dishonesty or any intention to mislead. This is potentially very wide indeed, since it appears to cover any inaccuracy in a document such as an application form which is not immediately apparent to the reader.”

99. The Legally Qualified Chair clarified that it was for the GMC to satisfy the tribunal that, on the balance of probabilities, Dr Harris’s actions and/or omissions were misleading. 100. With regard to Dr Harris’s conduct, the tribunal had regard to a number of letters, identified above, that Dr Harris wrote to the GPs of a number of the patients he had seen on a private basis, namely Mr D, Mr E, Mrs F and Mr G. The tribunal noted that Dr Harris stated on the letters that he was a Consultant Psychiatrist and, on most of them, that he was “Formerly of the Spire Hospital” but that there was no mention of his current fitness to practise status. 101. In Dr Harris’s witness statement dated 1 November 2017, he stated:

“I accept that a failure to disclose that my registration had been suspended on an interim basis by the IOP was misleading.”

102. The tribunal had regard to Ms C’s witness statement dated 8 January 2017, in which she stated:

“I was never informed by Dr Harris that he had been suspended from practising during the appointments that took place after November 2013. If I had knowledge that Dr Harris had been suspended I would not have sought medical care and treatment from him.”

103. The tribunal was of the view that, by not disclosing the interim order on his registration, Dr Harris led patients to believe that he was fully entitled to practise and to act as their psychiatrist. Moreover, in writing to the GPs of a number of those patients regarding changes in medication and updates, Dr Harris was also misleading those GPs about his registration status, when they should have been able to rely on the information in his correspondence. 104. The tribunal determined that there was an omission by Dr Harris in failing to tell patients of the interim order and writing clinical letters to GPs without mention of the change of registration status. It concluded that Dr Harris made omissions in that he led patients and other doctors to believe that he was fully entitled to practise when he was not and he knew he was not. The tribunal was also mindful of Dr Harris’s written statement in which he acknowledged that his actions, in failing to disclose the interim suspension, was misleading.



MPT: Dr HARRIS

28

105. The tribunal determined that Dr Harris’s conduct as described in paragraphs 4 and 5 of the allegation was misleading. Accordingly, the tribunal found this sub-paragraph of the allegation proved. Paragraph 7(b) 106. The Legally Qualified Chair reminded the tribunal of the meaning of the word ‘dishonest’. He referred to the case of Ivey v Genting Casinos (UK) Ltd (t/a Crockfords) [2017] UKSC 67, and stated that the Supreme Court took the opportunity to review the previous cases on dishonesty. He stated that the case set out that the second part of the previously accepted test for dishonesty, whether the defendant appreciated that by ordinary standards their behaviour would be regarded as dishonest, was no longer to be used:

“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. Once the actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

107. With regard to Dr Harris’s conduct, the tribunal took account of Ms B’s supplemental witness statement dated 2 August 2017, where she stated:

“the GMC received emails from Dr Harris on 21 April 2014 and 22 April 2014 which he requested to be presented at the IOP hearing on 23 April 2014 and in which he requested an exception to the interim order of suspension to allow him to appear as an expert witness.”

108. In the email from Dr Harris to the GMC dated 21 April 2014, he stated:

“Thank you for the update. I have a superb solicitor, XXX who has made clear the GMC procedure. I am being reviewed on Tuesday 22nd I am supposedly an expert witness for a case re a policeman and Dyfed Powys police. I saw him 2 years ago. And will not be seeing him again. If I am not to be involved. It means that Dyfed Police will have to start all over again. Would the GMC allow for an exception? I would be grateful if you would put this to them tomorrow. Brian.”



MPT: Dr HARRIS

29

109. In a subsequent email to the GMC dated 22 April 2014 at 16:12, Dr Harris stated:

“The individual concerned is claiming damages from Dyfed Powys police, in the sense that his mental condition is due to them and the accident. I have agreed with the other expert that he will not be able to return to work as a policeman. If I am not able to join the experts in conference, it means that the police force will have to start all over again. Regards, Brian Harris.”

110. Dr Harris’s request for an exception to the interim order of suspension was considered by the MPTS IOP on 23 April 2014 but no exception was granted. 111. The tribunal had regard to Dr Harris’s comments as to dishonesty within his witness statement dated 1 November 2017, as follows:

“I accept that a failure to disclose that my registration had been suspended on an interim basis by the IOP was misleading. I do not accept that it was dishonest. XXX when the interim order was imposed, it did not occur to me that I should simply have informed my patients that I was no longer working. In hindsight, I accept that I should have done so. XXX around the end of 2014, I wrote to my private patients to advise that I was no longer practising and after December 2014, I did not see any further patients. I completely accept that I should not have continued to see private patients whilst my registration was suspended. XXX when I was approached by patients for a private consultation as a follow-up, I did not want to let them down, so I agreed to see them. I also realise that I was a workaholic. I loved medicine and practising as a doctor.”

112. The tribunal took account of the positive testimonials provided by Dr Harris’s representatives, on his behalf. It noted that the references spoke of Dr Harris’s honesty and integrity and of the contribution he had made to his community and patients during his long career. It also took into account that Dr Harris has no previous findings before his regulator. 113. The tribunal considered subjectively whether Dr Harris had acted dishonestly. It took account of his question to the GMC to ask for an exception to act as an expert witness in conference. The tribunal was of the view that it was clear to Dr Harris that, given that request, he knew he should not be practising as a consultant



MPT: Dr HARRIS

30

psychiatrist in giving expert evidence. The tribunal concluded that, if this point was clear to Dr Harris then the same premise as to not seeing patients for consultations would also have been clear in his mind. 114. The tribunal also considered that Dr Harris was fully aware that he should not have been practising as a doctor given that he attended the initial IOP hearing, received the MPTS IOP outcome letters and completed signed acknowledgement slips for three of those letters, as well as the correspondence to request the exception. XXX 116. The tribunal has had regard to Dr Harris’s witness statement and all of the evidence before it and was of the view that Dr Harris knew his conduct was wrong and prohibited. The tribunal inferred that Dr Harris did not have an honest motive for his actions, for example a life threatening emergency. It observed that Dr Harris continued to see patients for a number of follow up appointments during the period of his suspension and took fees for these consultations. 117. The tribunal was also concerned that Dr Harris advised on medication changes and wrote GP follow up letters where there was a clear expectation that his letters would be given full weight by other medical practitioners. The tribunal therefore determined that, objectively, an ordinary reasonable person looking at this case would conclude that Dr Harris’s actions were dishonest. 118. The tribunal concluded that Dr Harris’s actions and omissions in respect of paragraphs 4 and 5 of the allegation were dishonest. Accordingly, the tribunal found this sub-paragraph of the allegation proved in respect of both paragraphs 4 and 5. Determination on Impairment - 05/12/2017 Mr Breen: 1. The tribunal now has to decide in accordance with Rule 17(2)(k) of the GMC (Fitness to Practise) Rules 2004, as amended (‘the Rules’) whether, on the basis of the facts which it has found proved as set out before, Dr Harris’s fitness to practise is impaired by reason of misconduct. 2. The tribunal has taken into account all the evidence before it, the submissions made by you on behalf of the GMC and the documentation provided by Dr Harris’s legal representatives on his behalf.



MPT: Dr HARRIS

31

Submissions 3. You submitted that Dr Harris’s fitness to practise is currently impaired. You stated that there is no burden of proof on the GMC at this stage and that it is a matter for the tribunal to determine. 4. You referred to a number of legal authorities including the case of GMC v Meadow [2006] EWCA Civ 1390. You stated that the tribunal should look forward in taking a view on Dr Harris’s fitness to practise today, but should also take account of his actions in the past. 5. You made reference to the case of CHRE v NMC, Grant [2011] EWHC 927 (Admin) and stated that, when deciding fitness to practise, the tribunal should not lose sight of the fundamental principle of the need to protect the public and to uphold proper standards of conduct for the profession. The Relevant Legal Principles 6. The tribunal reminded itself that at this stage of proceedings, there is no burden or standard of proof and the decision of impairment is a matter for the tribunal’s judgment alone. 7. In approaching the decision, the tribunal was mindful of the two-stage process to be adopted: first whether the facts as found proved amounted to misconduct which was serious and secondly whether the finding of misconduct could lead to a finding of current impairment. 8. The tribunal must determine whether Dr Harris’s fitness to practise is currently impaired, taking into account Dr Harris’s conduct at the time of the events and any relevant factors since then such as whether the matters are remediable, have been remedied and any likelihood of repetition. 9. The tribunal was conscious that it must have regard to the over-arching statutory objective, namely to protect and promote the health, safety and wellbeing of the public; to promote and maintain public confidence in the medical profession; and to promote and maintain proper professional standards and conduct for members of the profession. The Tribunal’s Determination on Impairment

Misconduct 10. The tribunal first considered whether Dr Harris’s actions amount to misconduct. It had regard to its findings at the facts stage, which included that Dr



MPT: Dr HARRIS

32

Harris’s actions in carrying out patient consultations and failing to disclose his IOP suspension was misleading and dishonest. 11. It considered that the following paragraphs of the current edition of Good Medical Practice (2013) (‘GMP’) were engaged:

“1. Patients need good doctors. Good doctors make the care of their patients their first concern: they are competent, keep their knowledge and skills up to date, establish and maintain good relationships with patients and colleagues, are honest and trustworthy, and act with integrity and within the law. 65. You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession. 66. You must always be honest about your experience, qualifications and current role. 76. If you are suspended by an organisation from a medical post, or have restrictions placed on your practice, you must, without delay, inform any other organisations you carry out medical work for and any patients you see independently.”

12. The tribunal was of the view that those sections of GMP clearly establish the requirement for a doctor to be honest and trustworthy, in order to ensure that the trust placed in them is justified. The tribunal had particular regard to paragraph 76 of GMP and the duty upon Dr Harris to inform his patients of the suspension. 13. The tribunal has found that Dr Harris failed to inform his patients of the IOP order and continued to book and undertake a number of follow-up appointments within the timeframe of his suspension. It was also concerned that, as part of the consultations, Dr Harris wrote to a number of GPs who should have been able to trust that the information provided in his follow-up letters was provided by a currently licensed doctor. 14. The tribunal determined that Dr Harris’s conduct would be considered deplorable by other medical practitioners. Doctors are allowed to practise by virtue of their registration with the GMC and accompanying licence to practise. The tribunal was of the view that this issue goes to the core of medical practice in that registration and the licence to practise with the GMC is the hallmark to confirm that a doctor has met, and will continue to meet, the standards as set out in GMP. 15. The tribunal was also conscious that Dr Harris had a clear duty and responsibility to declare his registration status to patients and that his failure to do so undermined the essence of the regulatory system.



MPT: Dr HARRIS

33

16. The tribunal determined that Dr Harris’s conduct, which was misleading and dishonest, fell far short of the standards reasonably to be expected of a doctor. The tribunal concluded that Dr Harris’s actions and omissions amounted to misconduct. Impairment by reason of misconduct 17. The tribunal, having found that the facts found proved amounted to misconduct, went on to consider whether Dr Harris’s fitness to practise was currently impaired by reason of his misconduct. 18. The tribunal had regard to the insight shown by Dr Harris in relation to his actions. It took account of Dr Harris’s written statement dated 1 November 2017, in which he stated:

“I am heartily ashamed of my actions which arose out of my wish to do the best for my patients. Of course, I now accept that this was irresponsible and that I should not have continued to see those patients. I should have ceased acting as a medical practitioner. I am sorry for having done so and I realise that in having seen those patients, I have caused upset and worry to the patients I have seen and their families, as they have been part of XXX GMC investigation. I wish to apologise to my patients and their families. I also accept that by continuing to see patients in contravention of the interim order I have brought the profession into disrepute. The public are entitled to expect that doctors they see are registered and entitled to work. I wish to apologise to the general public and to the GMC and to the Tribunal. I have had a long, enjoyable and unblemished career up until the allegations which have led up to this investigation. XXX my only wish was to continue to help my patients and I accept that this was wrong. I am ashamed and am disappointed that my career will end on this note and with these admissions.”

19. In the statement, the tribunal also noted that Dr Harris admitted all of the allegations apart from dishonesty. Moreover, his comments show a recognition by Dr Harris that his actions were wrong and that they had an impact on his patients and their families because of the subsequent XXX GMC investigations. 20. The tribunal also noted Dr Harris’s acceptance that his actions have brought the profession into disrepute and the apology in his statement to the general public, GMC and the tribunal. 21. The tribunal accepts that Dr Harris has made expressions of regret and has shown some insight into his conduct. Whilst Dr Harris has been unable to justify his actions he has admitted that they were wrong. However, Dr Harris failed to accept that his behaviour was dishonest, something which this tribunal has found proved.



MPT: Dr HARRIS

34

The tribunal was particularly concerned about Dr Harris’s conduct given that he continued to see patients for a number of follow-up consultations during the period of suspension, right up until his referral to the GMC in 2015. 22. The tribunal is aware that all of the misconduct in this case is capable of remediation. However, the tribunal is conscious that Dr Harris has not acknowledged that his conduct was dishonest. Whilst Dr Harris has stated that he does not intend to practise again in the future, the tribunal found that he has not remediated his actions given the lack of acknowledgement that his actions were dishonest. Accordingly, the tribunal could not conclude that Dr Harris would not repeat his conduct in the future XXX. 23. The tribunal had regard to the test set out in the judgment of Mrs Justice Cox in CHRE v NMC & Grant, which stated:

"Do our findings of fact in respect of the doctor's misconduct…show that his/her fitness to practise is impaired in the sense that s/he:

a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or d. has in the past acted dishonestly and/or is liable to act dishonestly in the future."

24. The tribunal determined that all of these four grounds were met. In this case, Dr Harris did put patients at risk. Whilst there is no suggestion of concerns about Dr Harris’s clinical skills, he was practising without a licence and would not have been subject to the same appraisal and revalidation checks as other practitioners. 25. The tribunal was of the view that honesty is a cornerstone of the profession. It considered that patients expect doctors to be honest and for decisions made by the regulator to be respected by practitioners. As such, the tribunal determined that Dr Harris had breached a fundamental tenet of the profession. The tribunal concluded that Dr Harris’s actions have had the effect of bringing the profession into disrepute. Further, public confidence in the profession and the need to maintain proper professional standards and conduct for members of the profession would be undermined if a finding of impairment was not made.



MPT: Dr HARRIS

35

26. The tribunal has therefore determined that Dr Harris’s fitness to practice is impaired by reason of his misconduct. Determination on Sanction - 06/12/2017 Mr Breen: 1. Having determined that Dr Harris’s fitness to practise is impaired by reason of his misconduct, the tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction, if any, to impose. 2. In so doing, the tribunal has given careful consideration to all of the evidence before it, together with your submissions on behalf of the GMC, the documentation provided by Dr Harris and the submissions made by Ms Horlick at the start of this hearing. Submissions 3. You submitted that the appropriate sanction in Dr Harris’s case was erasure from the Medical Register. 4. You referred the tribunal to its determinations on facts and impairment. You stated that, regrettably, Dr Harris has effectively ignored the decisions of previous IOP hearings and continued to practise whilst there was an interim suspension order in place. You reminded the tribunal that Dr Harris treated patients and sent follow-up correspondence to a number of their GPs. Further, you stated that Dr Harris continued to see patients at a number of follow-up appointments during the suspension period up to the referral to the GMC in 2015. 5. You referred the tribunal to various paragraphs of the Sanctions Guidance (30 May 2017) (‘the SG’) and of the overarching objective, which includes the need to maintain public confidence in the profession. 6. You stated that Dr Harris is elderly, and the tribunal has been told that XXX he will not practise again. You said that this was something for the tribunal to take into consideration. 7. As to mitigating factors, you stated that the testimonials and references produced show that Dr Harris was clearly respected by his patients. However, you submitted that they do not explain why Dr Harris chose to ignore the interim suspension despite the letters sent to him over a sustained period of time. You suggested that one explanation would be that Dr Harris wanted to treat patients but you stated that is was not a valid reason to ignore the suspension order.



MPT: Dr HARRIS

36

8. You stated that it was difficult to see if Dr Harris does have any insight into his actions apart from his expression of regret. You submitted that Dr Harris may well have some insight but the fact remained that he continued to treat patients until the referral to the GMC. Further, you stated that it was not clear what evidence there was of remediation. 9. As to aggravating factors, with reference to paragraph 55 of the SG, you submitted that it could be said that the patients Dr Harris saw were vulnerable as they may have been suffering from mental health issues. You stated that this was a matter for the consideration of the tribunal. 10. You submitted that conditions or suspension would not be appropriate in this case. You stated that Dr Harris flagrantly disregarded a previous order of suspension by continuing to carry out consultations with patients. As such, this tribunal can have no confidence, if an order of suspension was imposed, that Dr Harris would comply with it. 11. With reference to paragraphs 91 to 93 of the SG which set out when suspension would be appropriate, you stated that Dr Harris ignored the interim order for a substantial period of time and he even wrote to the IOP seeking an exception to the order. As such, Dr Harris was fully aware of the interim order but went ahead and continued to treat patients. 12. You submitted that Dr Harris’s misconduct is fundamentally incompatible with continued registration and that erasure was the proportionate sanction in the circumstances of this case. With reference to the factors set out in paragraph 109 of the SG which may indicate that erasure is appropriate, you stated that there had been a disregard of the safeguards designed to protect the public and of the principles set out in GMP. Further, that this case related to dishonest conduct where the doctor had put his own interests before those of his patients. 13. You submitted that, for all those reasons and adopting the guidance, it would be proportionate to impose the sanction of erasure. The Tribunal’s Determination on Sanction 14. The decision as to the appropriate sanction to impose, if any, in this case is a matter for this tribunal exercising its own judgement. In reaching its decision, the tribunal has taken account of the SG. It has borne in mind that the purpose of the sanctions is not to be punitive, but to protect patients and the wider public interest, although sanctions may have a punitive effect. 15. The tribunal gave careful consideration to the aggravating and mitigating factors present in Dr Harris’s case.



MPT: Dr HARRIS

37

16. In mitigation the tribunal had regard to the following factors:

The tribunal determined that Dr Harris has some insight into his conduct. It acknowledged his expressions of remorse in his written statement dated 1 November 2017. The tribunal also noted that Dr Harris admitted the facts alleged in his statement, apart from the allegation in relation to dishonesty.

There have been no previous findings of impaired fitness to practise against Dr Harris.

The tribunal took account of the references and testimonials provided which, although not prepared specifically for this hearing, show that Dr Harris is clearly well regarded professionally and by the community. This positive opinion is also reflected in a number of the statements from the patients in this case.

The tribunal had regard to Dr Harris’s expressions of remorse received on 1 November 2017. It concluded that these expressions were limited and indicated an incomplete level of remediation and insight.

XXX 17. The tribunal balanced the mitigating factors against what it considered to be the aggravating factors in this case:

The tribunal was of the view that the number of patients seen by Dr Harris over a sustained period of time was an aggravating factor. Dr Harris also saw some of the patients for a number of follow-up appointments: a clear repetition of his conduct. Further, as a psychiatrist, Dr Harris saw patients who had mental health issues and may have been considered vulnerable.

At no stage did Dr Harris appear to modify his practice to take account of the fact that there was an interim order of suspension on his registration.

Dr Harris requested an exception to the IOP order and the tribunal is clear that he had full knowledge of the interim order, especially given the MPTS correspondence sent to him whenever the interim order was reviewed and maintained.

A number of the consultations occurred close to the IOP hearings, the first of which Dr Harris attended in person.

No action 18. In coming to its decision as to the appropriate sanction, if any, to impose in Dr Harris’s case, the tribunal first considered whether to conclude the case by taking no action. 19. The tribunal determined that, in view of the serious nature of its findings, there were no exceptional circumstances in this case to justify taking no action. It



MPT: Dr HARRIS

38

concluded that taking no action would be wholly incompatible with the findings and that the public interest demands the imposition of a sanction in this case. Conditions 20. The tribunal next considered whether it would be sufficient to impose conditions on Dr Harris’s registration. It has borne in mind that any conditions imposed would need to be appropriate, proportionate, workable and measurable. 21. The tribunal was of the view that a period of conditional registration would not be appropriate. It could not devise workable conditions to deal specifically with dishonesty and, even if it were able to, the seriousness of this case is such that imposing conditions would not be appropriate to maintain public confidence in the medical profession. 22. Further, the tribunal had no confidence that Dr Harris would comply with conditions on his registration given his failure to comply with an interim suspension order. It noted that conditions can be useful were they can facilitate remediation but the tribunal was unable to formulate conditions that could deal with the misconduct in this case. 23. The tribunal has therefore determined that it would not be sufficient to direct the imposition of conditions on Dr Harris’s registration. Suspension 24. The tribunal then went on to consider whether suspending Dr Harris’s registration would be appropriate and proportionate. 25. The tribunal had regard to a number of factors, including the stage of Dr Harris’s career, the lack of remediation of his actions and the limited insight into his conduct. Whilst the tribunal acknowledged that Dr Harris has some insight into the fact that his conduct was wrong, his explanation of his behaviour was limited and restricted to the assertion that he wanted to do what was best for his patients. 26. The tribunal determined that the conduct in question was serious and that, whilst such conduct was not always incompatible with continued registration, it was so in the specific circumstances of this case: there was no acknowledgement of dishonesty by Dr Harris, the tribunal found that there may be a risk of repetition of his conduct, and it has seen no evidence that Dr Harris has taken steps to remediate his actions. 27. Further, the tribunal considered that Dr Harris has already been suspended on an interim basis and has ignored this. There was an acknowledgement by Dr Harris that what he did was wrong with some insight into the impact of his actions on



MPT: Dr HARRIS

39

patients, their families and the profession. However, apart from an apology to the GMC, there appears to be no clear regard for the impact of his actions on the regulator and its processes. 28. The tribunal determined that suspension would not be sufficient to mark the seriousness of Dr Harris’s misconduct or to protect the public interest. Erasure 29. The tribunal had regard to paragraph 109 of the SG, concerning factors which may indicate that erasure was appropriate. It determined that the following sub-paragraphs are engaged:

“a. A particularly serious departure from the principles set out in Good medical practice where the behaviour is fundamentally incompatible with being a doctor. b. A deliberate or reckless disregard for the principles set out in Good medical practice and/or patient safety. … d. Abuse of position/trust (see Good medical practice, paragraph 65…) … h. Dishonesty, especially where persistent and/or covered up…”

30. The tribunal determined that there had been a serious departure from the principles of honesty and trustworthiness as set out in GMP. In reference to paragraph 108 of the SG, the tribunal was of the view that there had been a blatant disregard for the safeguards designed to protect members of the public, and maintain high standards within the profession, and that such his behaviour was fundamentally incompatible with him continuing to be a registered medical practitioner. 31. The tribunal was of the view that the aggravating factors identified in this case are highly persuasive. Dr Harris continued to practise whilst under an interim suspension order that had been imposed by his regulator, a matter which has a clear impact on the perceived effectiveness of the regulator. He had been suspended in 2013 and correspondence was sent to him on each occasion that the interim order was reviewed. The tribunal was conscious that a number of the consultations occurred close to the IOP hearings, the first of which Dr Harris attended in person, and therefore there was a blatant disregard by him of the interim order. 32. The tribunal determined to direct that Dr Harris’s name be erased from the Medical Register. It concluded that this was both proportionate and necessary in the public interest and would send a clear message to the public and the profession that such conduct is not appropriate or compatible with continued registration.



MPT: Dr HARRIS

40

Determination on Immediate Order - 06/12/2017 Mr Breen: 1. Having determined to erase Dr Harris’s name from the Medical Register, the tribunal has considered, in accordance with Rule 17(2)(o) of the Rules, whether Dr Harris’s registration should be subject to an immediate order. Submissions 2. You submitted that an immediate order of suspension was necessary on the grounds of public protection, in the public interest and in Dr Harris’s own interests. 3. Further, you stated that there was an interim order XXX. You submitted that the tribunal should revoke the interim order currently in place on Dr Harris’s registration. The Tribunal’s Determination 4. In making its decision the tribunal exercised its own judgement. It had regard to the principle of proportionality and balanced Dr Harris’s interests with the public interest. 5. The tribunal took account of paragraph 178 of the SG, which states:

“…The tribunal should consider the seriousness of the matter that led to the substantive direction being made and whether it is appropriate for the doctor to continue in unrestricted practice before the substantive order takes effect.”

6. The tribunal was of the view that this was particularly relevant given its findings on sanction that there had been a serious departure from the principles of GMP and a blatant disregard for the safeguards such that Dr Harris’s misconduct was incompatible with continued registration. 7. In all the circumstances, the tribunal determined to impose an immediate order of suspension on Dr Harris’s registration. It was satisfied that, in the public interest, it would not be appropriate for Dr Harris to return to unrestricted practice before the substantive direction takes effect. 8. This means that Dr Harris’s registration will be subject to the immediate order of suspension from when notification is deemed to have been served upon him. The substantive direction, as already announced, will take effect 28 days from when written notice of this determination has been served upon Dr Harris, unless an appeal is made in the interim. If an appeal is made, the immediate order will remain in force until the appeal has concluded.



MPT: Dr HARRIS

41

9. The interim order currently imposed on Dr Harris’s registration will be revoked when the immediate order takes effect. 10. That concludes this case. Confirmed Date 06 December 2017 Mr Alexander Jacobs, Chair



MPT: Dr HARRIS

42

Schedule 1 24 April 2014 30 September 2014 6 March 2015 13 July 2015 16 December 2015 2 August 2016 Confidential Schedule 2 10 December 2013 – Ms C February 2014 – Mr D 11 March 2014 - Ms C 25 March 2014 – Mr D 1 April 2014 – Mr E 22 April 2014 – Mr D 13 May 2014 – Mr D 27 June 2014 – Mr D 13 July 2014 – Mrs F August 2014 – Mrs F 18 September 2014 – Mrs F 23 October 2014 – Mrs F 23 October 2014 – Mr D 24 October 2014 – Ms C 13 November 2014 – Mr G 20 December 2014 – Mr D

public record - medical practitioners tribunal … · public record dates: 29/11/2017 - 06/12/2017...

Documents