Public Minutes - REDACTED

FITNESS TO PRACTISE PANEL

2 JULY 2009

7th Floor, St James’s Buildings, 79 Oxford Street, Manchester, M1 6FQ

Name of Respondent Doctor: Dr Luis Camilo Zapata

Registered Qualifications: MB BS 1994 University of London

Area of Registered Address: Oxfordshire

Registration Number: 4127352

Type of Case: New case of impairment by reason of a conviction or caution xxxxxxxxxxxxxxxx

Panel Members: Mrs Polly Clarke, Chairman (Lay)Dr Frances Loughbridge (Medical)Mr Desmond Smith (Lay)

Legal Assessor: Dr D Jess

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Secretary to the Panel: Ms Jan Smith

Representation: GMC: Ms Catherine Cundy, Advocate

Doctor: Mr Ranald Davidson, Counsel, instructed by Mr Charles Dewhurst of the Medical Defence Union

ALLEGATIONThat being registered under the Medical Act 1983:

1. On 8 January 2009 at Holborn Police Station you were formally cautioned for an offence of possessing a Class A controlled drug namely diamorphine contrary to Section 5(1) of The Misuse of Drugs Act 1971. Admitted and Found Proved

And by reason of the matters set out above your fitness to practise is impaired because of your

a. Caution

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Determination on impaired fitness to practise

Dr Zapata:

At the outset of today’s proceedings, Mr Davidson admitted the new allegation, on your behalf, namely:

“That being registered under the Medical Act 1983:

1. On 8 January 2009 at Holborn Police Station you were formally cautioned for an offence of possessing a Class A controlled drug namelyDiamorphine contrary to Section 5(1) of The Misuse of Drugs Act 1971.”

The Panel recorded the fact as admitted and found proved and has considered whether, on the basis of the fact found proved, your fitness to practise is impaired. It has taken account of all the evidence adduced, including Ms Cundy’s submissions on behalf of the General Medical Council (GMC) and Mr Davidson’s submissions on your behalf.

The Panel noted the background to the new matter in this case was that on 16 September 2008, you were approached by a female at King’s Cross station. You asked her to purchase some cannabis. You gave her £10 and went on a bus with her to Camden, where she obtained a drug for you. You were observed by the police who believed that this female had provided you with drugs. When you were approached by the police, you discarded a packet from your hand but, when detained by the police, you admitted that you had paid the female £10 to buy drugs for you. You also said that you had panicked when the police approached and that you had thrown the item away. The item was retrieved by the police and subsequently forensically analysed. The packet was found to contain 196 mgs of diamorphine.

The Panel has noted that you said that it was your intention to buy cannabis from the woman at King’s Cross station and that, following your arrest and interview by the Metropolitan Police, on 8 January 2009 you accepted a police caution for the possession of a Class A Drug, namely Diamorphine.

The Panel has considered Ms Cundy’s submissions that when you were approached by the woman at King’s Cross station you asked her to purchase cannabis for you and that you then recklessly followed the woman into the back streets of North London without considering the consequences of your actions. Ms Cundy further submitted that such conduct was likely to bring the profession into disrepute and it therefore amounted to impairment.

Mr Davidson submitted that you did not approach the woman at King’s Cross Station, but that she had approached you whilst you were on your journey from your place of employment. He stated that you had not deliberately travelled to King’s Cross for the purpose of purchasing drugs. He also stated that, when you realised it was not cannabis, you had intended to dispose of the packet which the woman had given to you. Mr Davidson submitted that for these reasons,

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xxxxxxxxxxxxxxxxxxxxxxx your fitness to practise was not impaired by reason of the caution.

In determining whether your fitness to practise is impaired, the Panel considered the four reasons why a Panel might find impairment as outlined by Dame Janet Smith in her fifth Shipman report and quoted by Mitting J in the appeal case of Zygmunt v the GMC [2008] EWHC 2643 (Admin). These are listed as follows:

“… (a) that the doctor presented a risk to patients, (b) that the doctor had brought the profession into disrepute, (c) that the doctor had breached one of the fundamental tenets of the profession and (d) that the doctor's integrity could not be relied upon."

The Panel has also borne in mind the judgment of Silber J in Cohen v GMC [2008] EWHC 581 Admin when he stated:

“Any approach to the issue of whether a doctor's fitness to practise should be regarded as ‘impaired’ must take account of the need to protect the individual patient, and the collective need to maintain confidence in the profession, as well as declaring and upholding proper standards of conduct and behaviour, of the public in their doctors and the public interest which includes amongst other things the protection of patients and maintenance of public confidence in the profession".

The Panel considers that your actions, as found proved on your own admission, have brought the profession into disrepute and have the potential to compromise confidence in the profession and are not consistent with the upholding of proper standards of conduct and behaviour. It has therefore determined that that your fitness to practise is impaired by reason of your caution, pursuant to Section 35C(2)(c) of the Medical Act 1983, as amended.

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On 9 June 2006, a Fitness to Practise Panel found that your fitness to practise was impaired xxxxxxxxxxxxxxxxxxxxxxxxxxxx and your registration was made subject to conditional registration for a period of 3 years. In deciding to impose conditions on your registration for 3 years, that Panel considered that it was an appropriate period of time xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

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In its letter, dated 27 January 2009, the GMC informed you that the information received from the Metropolitan Police would be considered by an Interim Orders Panel. In February 2009, that Panel determined to impose conditions on your registration, similar to those already imposed by the previous Fitness to Practise Panel. In the light of that determination, you were suspended from clinical duties by Camden and Islington NHS Foundation Trust for a period of 8 weeks.



The Panel then considered whether you are in breach of the conditions imposed on your registration xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. It has also borne in mind your acceptance of the police caution on 8 January 2009 for possession of a Class A drug. It has therefore determined that you are in breach xxxxxxxxxxxxxx of the conditions imposed on your registration.

The Panel will now invite further submissions from both parties 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 the case.

Determination on sanction

Dr Zapata:

The interim order of conditions imposed on your registration on 16 February 2009 is hereby revoked.

Having determined that your fitness to practise is impaired by reason of your caution xxxxxxxxxxxxxxxxxxxxxxx, the Panel must now determine what action, if any, to take in relation to your registration. In doing so, the Panel has borne in mind the submissions made by Ms Cundy, on behalf of the GMC and those made by Mr Davidson on your behalf.

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The Panel heard from you today when you stated that you intend to extend your training by 6 months and ultimately apply to become a consultant. You accepted that your actions in September 2008 were “rash, reckless and foolish” xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

Ms Cundy submitted that it would be appropriate, at the least, to impose conditions on your registration xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx She drew the Panel’s attention to paragraph 116 of the Indicative Sanctions Guidance, which states:

“… in all cases where conditions have been imposed the Panel will need to be reassured that the doctor is fit to resume practice either unrestricted or with conditions or further conditions. The Panel will also need to satisfy itself that the doctor has fully appreciated the gravity of the offence, has not re-offended and has maintained his/her skills and knowledge and that patients will not be placed at risk by resumption of practice or by the imposition of conditional registration.”

Mr Davidson submitted that you have been working as an ST6 psychiatrist with the Calshot Mental Health Team since May 2009, under the workplace supervision ofDr Nigel McKenzie. Mr Davidson also submitted that, apart from xxxxxxxxxxxxxxxxxxxxx the caution xxxxxxxxxxxxxxxxx, you have complied with all the other conditions imposed on your registration. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

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He submitted that xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx you are fit to practise under supervision and xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx it would be appropriate to impose a further period of conditions on your registration.

However the decision as to the appropriate sanction, if any, to impose on your registration is a matter for this Panel exercising its own judgement.

The Panel has noted that there has not been any evidence of harm to patients or any question about your clinical competence. It has also noted that your caution appears to be an aberration xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

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The Panel has considered whether it is necessary for the protection of members of the public, in the public interest or in your own interests to make a direction in relation to your registration. Throughout its deliberations, the Panel has borne in mind its duty to consider the protection of the public and the public interest. The public interest includes, amongst other things, protection of patients, the maintenance of public confidence in the profession, and the declaring and upholding of proper standards. It has taken account of the guidance provided within the Indicative Sanctions Guidance (April 2009) and the GMC’s publication Good Medical Practice (November 2006).

The Panel has also applied the principle of proportionality, weighing the public interest against your own interest. The purpose of a sanction is not to punish you for a second time for the offence committed, although the imposition of a sanction may have a punitive effect.

The Panel first considered whether to conclude your case by taking no further action but determined that, in view of the incident in September 2008 which resulted in your caution, it would be insufficient to take no action on your registration. In reaching this decision the Panel considered the public interest requires that action be taken in order to maintain the confidence of the public in the profession and to uphold and declare proper standards of conduct.

The Panel next considered whether it would be sufficient to place conditions on your registration. It has borne in mind that any conditions would need to be appropriate, proportionate, workable and measurable.

The Panel has had regard to the supportive testimonials submitted from your professional colleagues whom you have made aware of your difficulties and who attest to your hard work, diligence and commitment.

The Panel is satisfied that it is sufficient and proportionate to impose conditions on your registration. The Panel has therefore determined that your registration shall be subject to the following varied conditions for a further period of 2 years:

1. You must notify the GMC promptly of any post you accept for which registration with the GMC is required and provide the GMC with the contact details of your employer.

2. At any time that you are employed, or providing medical services, which require you to be registered with the GMC, you must agree to the appointment of a workplace supervisor nominated by your employer, or contracting body, and approved by the GMC.

3. You must allow the GMC to exchange information with your employer, or any organisation for which you provide medical services, and any individual involved in your supervision.

4. You must inform the GMC of any formal disciplinary proceedings taken against you, from the date of this determination.

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5. You must inform the GMC if you apply for employment outside the UK.

6. You must keep your professional commitments under review and limit your medical practice in accordance with your medical supervisor’s advice.

7. You must cease work immediately if your medical supervisor advises you to do so.

8. You must only work in medical posts where you would not have access to controlled drugs.

9. You must not possess those drugs listed in Schedules 1 - 3 of the Misuse of Drugs Regulations 2001, as may be amended from time to time.

10. You must not prescribe those drugs listed in Schedules 1 - 3 of the Misuse of Drugs Regulations 2001, as may be amended from time to time.

11. You must obtain the approval of your medical supervisor before accepting any post for which registration with the GMC is required.

12. You must inform the following parties that your registration is subject to the conditions listed at 1 to 11 above:

a. Any organisation or person employing or contracting with you to undertake medical work

b. Any locum agency or out-of-hours service you are registered with or apply to be registered with (at the time of application)

c. Any prospective employer (at the time of application)

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The Panel considered that a period of 2 years’ conditional registration would allow you sufficient time to demonstrate xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx compliance with your conditions.

A Panel will review your case at a hearing to be held before the end of the period of conditional registration. It will then consider whether it should take any further action in relation to your registration.

A letter will be sent to you about the arrangements for the review hearing xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

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The effect of this direction is that, unless you exercise your right of appeal, your registration will become subject to the above conditions 28 days from when written notification of this decision is deemed to have been served upon you, i.e. 28 days from 8 July 2009. The conditions which were imposed on your registration on 9 June 2006 will remain in place until this decision takes effect. A note explaining your right of appeal will be sent to you.

That concludes your hearing.

Confirmed

3 July 2009 Mrs Polly Clarke, Chairman

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Documents

Public Minutes - REDACTED