DETERMINATION: Facts

MEDICAL PRACTITIONERS TRIBUNAL: 18 August 2017

Dr Valerie MURPHY (6104053)

Dr Murphy:

Background

1. You qualified from the National University of Ireland in Cork with the
qualification MB BCh, BAO in 2003 and began working as a Junior Doctor in
Psychiatry, in Oxford. You went on to be appointed Consultant (Learning Difficulties)
for Southern Health NHS Foundation Trust (the Trust), formerly known as the
Ridgeway Partnership, in October 2011. Following this in January 2012, you took up
the substantive Consultant Psychiatrist post for the same organisation. In 2014 you
relinquished your licence to practice in the UK and returned to Ireland.

2. Whilst you were employed by the Trust as a Consultant Psychiatrist, Patient A

was admitted into Slade House, a Short Term Assessment Unit within the Trust.
Patient A was an 18 year old male who had been diagnosed with Kleinfelters mosaic,
autism, learning disability and epilepsy. He was admitted to Slade House as his
behaviour had become obsessive, unpredictable and quite violent, culminating in an
incident where he hit his teacher. Slade House had a large specialist learning
disability team of psychologists, nurses and support workers, which Patient As
mother felt was necessary for the care he required.

3. During Patient As admission at Slade House, his mother and his family
started to experience concerns regarding the level of care and treatment being given
to Patient A. Patient As mother maintained a blog to document her experience with
her sons treatment. On 4 July 2013, Patient A had an epileptic seizure whilst
bathing unsupervised. He was found unconscious, submerged under water, and was
taken to hospital; however he never regained consciousness and died later that day.

4. The death of Patient A led to a report from Verita being commissioned in

November 2013 by the Trust, which was produced in February 2014. Following the
report Patient As mother made a complaint to the GMC regarding your actions whilst
Patient A was under your care, which has led to the allegation of misconduct against
you.

Documentary evidence

1
5. The tribunal was provided with supporting documentation on behalf of the
GMC and yourself including the following:

Witness statements of Dr Sara Ryan, mother of Patient A, dated 4 August

2015 and 28 April 2017
Witness statement of Dr Jane Adcock, dated 26 April 2017
Expert reports of Dr Zahir Ahmed, dated 26 September 2014, 28 December
2015, 24 May 2016 and 30 September 2016
Your witness statement, dated 7 August 2017

Witnesses

6. The tribunal heard oral evidence from the following witnesses:

Dr Jane Adcock, Consultant Neurologist at John Radcliffe Hospital, Oxford

since 2010.
Dr Sara Ryan, mother of Patient A.
Dr Zahir Ahmed, GMC Expert Witness and Consultant Neuropsychiatrist,
University Hospital of Wales.
You.

7. Dr Jane Adcock
The tribunal found Dr Adcock to be a credible and reliable witness in the information
that she was able to recollect and provide. You said that you had had a telephone
conversation with Dr Adcock seeking her advice about prescribing Risperidone to
Patient A in April 2013. Dr Adcock did not remember any such conversation, but was
able to say what she would do when asked for advice by a consultant colleague. The
tribunal found her evidence helpful and her answers clear, honest and without any
obfuscation.

8. Dr Sara Ryan (Patient As mother)

The tribunal acknowledged that the last 4 years have been a very difficult time for
Patient As mother. The tribunal noted that the evidence was given from her
perspective of the events and felt that her memory may have been affected by the
major trauma she experienced in the loss of her son. The tribunal found her to be
dignified and doing her best to assist the tribunal and believed her answers to be
balanced and fair, particularly as she acknowledged when she could not recall
something and conceded points during cross-examination. As such, the tribunal
found her evidence to be credible.

9. Dr Zahir Ahmed
The tribunal found Dr Ahmed to be, overall, a credible witness. It did note that he
focused on his own approach to clinical practice and only when questioned further
did he acknowledge a different approach could be valid. The tribunal considered the
opinions in his expert reports to be inflexible. However, in his oral evidence, he was
able to make concessions about some of his earlier opinions and also to expand
upon them in greater detail. The tribunal found his oral evidence helpful and
believed this may have helped you to acknowledge what actions you had taken
correctly or incorrectly.

2
10. You
The tribunal acknowledged that you have been on a difficult journey over the last
four years and that you are clearly regretful regarding the failings in your clinical
practice, that you now accept, surrounding Patient As death. It noted that in some
areas the focus of your witness statement was on what you believed you would have
done, relying on your usual practice, rather than upon any actual memory of your
actions in relation to Patient A. The absence of contemporaneous records concerning
these matters made it difficult to place reliance on those parts of your evidence. It
noted that you answered particularly difficult questions concerning your clinical
actions and it appeared to the tribunal that you have accepted more responsibility
for your actions now than you did at the time of the death of Patient A or in any
other inquiries. This appeared particularly apparent when answering tribunal
questions about your management of events concerning Patient A, and how those
events may have affected levels of risk arising in his case. That being said, the
tribunal detected some evasive answers and defensive responses to some other
questions posed to you. You also now acknowledged that you had the ultimate
responsibility for matters concerning Patient As care both when he was detained
under Section 2 Mental Health Act (MCA) and then when he was an informal patient
at Slade House.

Application to amend allegation

11. Ms Fairley, Counsel, on behalf of the General Medical Council (GMC), made an
application to amend paragraph 6 of the allegation under Rule 17(6) of the GMC
(Fitness to Practise) Rules 2004 (the Rules), as follows:

6. On 21 May 2013, your completion of a subsequent mental capacity

assessment form for Patient A, regarding his consent to treatment was
inadequate in that you failed to:

12. Ms Fairley submitted that in your oral evidence you could not remember the
date that the form referred to. She stated that amending the paragraph by removing
the date would not result in any injustice to you and that it did not change the
substance of the allegation.

13. Mr Partridge, Counsel, on your behalf, submitted that as the proposed

amendment to paragraph 6 arose out of your oral evidence he did not oppose it.

14. Bearing in mind that Mr Partridge did not oppose the suggested amendment
to the date in the stem of paragraph 6, the tribunal was satisfied that the
amendment could be made without injustice and determined to accede to the
application.

Tribunals Approach

15. The tribunal has considered each of the paragraphs of the allegation
separately. In doing so it has considered all of the evidence adduced in this case. It

3
has taken account of Ms Fairleys submissions on behalf of the GMC and those made
by Mr Partridge on your behalf.

Tribunals Decision

16. Bearing the above in mind, the tribunal has made the following findings of
fact:

Paragraph 1
Between January 2012 and June 2014 you were employed by the Southern
Health NHS Foundation Trust. Has been Admitted and Found Proved.

Paragraph 2
The risk assessments carried out in relation to Patient A were inadequate in
that you failed to:
a. carry out any risk assessments; Has been Found Proved.

17. Ms Fairley submitted that you have acknowledged that you had the ultimate
responsibility for Patient A during his period of residence at Slade House. In her
submission, this responsibility extended to conducting risk assessments yourself. She
stated that there was no record of a risk assessment being completed by you and
she referred to Dr Ahmeds evidence, who she stated said this should have been
done.

18. Mr Partridge submitted that the tribunal should appreciate the context of the
charge and that there were three types of risk assessment: Psychiatric, Medical and
Daily Living Activities (DLA) assessments. He stated that you would participate in the
decision making regarding psychiatric risks and the need for observations of a
patient who may be a risk to themselves or others. He referred to your decision to
maintain level 2 psychiatric observations of Patient A and the subsequent decision on
3 June 2013 to reduce the level 2 observations to general observations. Mr Partridge
submitted that, in relation to Medical risk assessments, you had already admitted
that you did not carry out a risk assessment to identify the risks concerned with
epilepsy and acknowledged this failure. Finally, Mr Partridge submitted that the DLA
risk assessments were the responsibility of the nurses and pointed to evidence of
risk assessment documents which had been completed by the nurses to support this.

19. The tribunal considered your documentary evidence, which states my

understanding was that the completion of risk assessments were the responsibility of
the band 5 nursesI would not usually expect to get involved in those decisions and
would not wish to interfere with the professional judgement of the nurses. Whilst
DLA risk assessments could be carried out by nursing staff, this did not relieve you
of responsibility for medical assessments. It noted that in your oral evidence you
eventually accepted that you did have a duty to conduct some risk assessments and
you had admitted your failure to comment on risk assessments conducted by the
nursing staff.

20. The tribunal also considered the oral evidence of Dr Ahmed who stated I
would have expected her [you] to carry out a risk assessment and further clarified

4
a total risk assessment, not just the epilepsy aspect. The tribunal determined that
as a Consultant Psychiatrist at Slade House, you had a duty to conduct and record
risk assessments and that they were ultimately your responsibility.

21. In considering all those parts of the allegation where it is said that you failed
to take a particular course of action, the tribunal interpreted failure in this context as
meaning that you had not done something when there was a duty or requirement to
do so, either generally, or at the point of the particular time referred to in a specific
paragraph of the allegation.

22. The tribunal noted that you stated Although I would not usually get involved
in these decisions, the assessment of ADL would be discussed at the CTM and
signed off by those present. The tribunal determined that it was not sufficient just
to discuss the ADL risk assessments of patients at a CTM alone. It determined that
this did not satisfy the requirements for you to conduct the medical risk
assessments.

23. The tribunal had sight of the RiO Standard Operating Procedure User Guide
and noted that it was a clear operating procedure to be followed in relation to
conducting risk assessments and the recording of the risk assessment. In your
evidence you suggested that the risk assessments you conducted were implicit,
however the tribunal determined that this was not following the specific procedure
outlined in the guidance. It further noted that there is no recorded evidence of the
assessments being conducted in the RiO notes. As there is no documentary evidence
of medical risk assessments being conducted by you, or appropriately delegated, in
accordance with the standard operating procedure, nor of them being recorded in
the RiO notes themselves, the tribunal concluded that it could not consider a risk
assessment to have taken place.

24. Accordingly, the tribunal found sub-paragraph 2a of the allegation proved.

b. comment on a risk assessment carried out by the nursing staff. Has

been Admitted and Found Proved.

Paragraph 3
You failed adequately and appropriately to obtain consent from Patient A
and/or his parents for the care and treatment you provided, in that:

a. Patient A was unable to understand information about remaining on

the ward; Has been Found Not Proved

25. Ms Fairley submitted that from 16 April 2013 Patient A was no longer
detained under Section 2 of the Mental Health Act and, as such, there was a
requirement to obtain informed consent. She further submitted that, in your record,
you did not indicate that you gave Patient A information about remaining on the
ward and as you had concluded he did not have the capacity to make decisions, he
was not able to understand the information given. In light of this, Ms Fairley
submitted that this should have been discussed with Patient As parents. She stated
that there was no specific meeting to discuss Patient As mental capacity with either

5
of his parents and submitted that efforts to communicate with them were
inadequate.

26. Mr Partridge submitted that in the event effective consent was unable to be
obtained from Patient A, then it could have been able to have been obtained from
his parents. Mr Partridge directed the tribunal to the RiO notes on 8 April 2013
where you had anticipated Patient As incapacity and engaged in a detailed
discussion about his medication, specifically Risperidone.

27. The tribunal noted that the GMCs case in relation to this allegation as set out
at paragraph 3b is that Patient A lacked capacity to consent to decisions about his
care and treatment. In those circumstances, the tribunal considered there is an
inherent contradiction in alleging that there was failure adequately and appropriately
to obtain consent for care or treatment from Patient A himself if he was also said to
lack capacity at that particular time. This contradiction undermines both paragraph
3a and 3b of the allegation insofar as it relates to obtaining consent from Patient A
himself.

28. The tribunal noted that during Patient As mothers evidence she was
concerned with how she would manage the behaviour of Patient A if he were to
return home at that time. The tribunal inferred that this meant Patient As mother
had been made aware that there was the possibility that Patient A could leave the
ward.

29. The tribunal had regard to the minutes from a meeting where Patient As
return to school was discussed. The minutes dated 16 April 2013 state that Sara
was reassured that both parents would be informed immediately should [Patient A]
decide to leave the unit. The tribunal determined that there was evidence to
suggest that, as you had determined that Patient A lacked the capacity to
understand the information given to him regarding his stay on the ward, you had
provided Patient As parents with this information in his place and that they did
consent to his continuing to stay at Slade House as an informal patient after his
discharge from section 2 of the Mental Health Act detention on 16 April 2013. As
such, the tribunal found sub-paragraph 3a not proved.

b. Patient A lacked the capacity to make this decision. Has been

Found Not Proved

30. Ms Fairley submitted that your record indicates that Patient A did not have
the capacity to give consent. She also stated that the notes were not clear on how
you concluded he did not have the capacity to make this decision.

31. My Partridge submitted that as you had concluded that Patient A lacked the
capacity to make the decision, you had instead involved his parents in the decision
making process.

32. The tribunal noted Dr Ahmeds evidence in the Psychiatric Report. He stated
Having deemed that Patient A lacked mental capacity Dr Murphy subsequently did
not indicate that a best interest meeting was arranged to make decisions on behalf

6
of Patient A. The tribunal acknowledged that there had not been a specific meeting
set up in order to address Patient As best interests.

33. The tribunal had regard to the RiO entry dated 16 April 2013, which stated
that you had discussed the situation with [Patient As] mother and explained that
while I do not feel that he is detainable under S3, I do feel that he should stay with
us on STATT as an informal patient. [Patient A] is not actively trying to leave the
ward at the moment but should he try to leave, I would suggest that he would not
have the mental capacity to do so. The tribunal determined that Patient As mother
implicitly consented, on his behalf, to his remaining on the ward informally. As such,
sub-paragraph 3b has been found not proved.

Paragraph 4
On 9 April 2013 you prescribed Risperidone to Patient A, and you failed to:

a. indicate that the symptoms Patient A was experiencing were due to

significant clinical anxiety; Has been Found Not Proved

34. Ms Fairley submitted that your note of your communication with Patient A on
9 April 2013 is extremely brief and stated that it did not include a record that the
symptoms Patient A was experiencing were due to significant clinical anxiety.

35. Mr Partridge submitted that you had noted that Patient As symptoms were
due to clinical anxiety and pointed to the CTM notes on 8 April 2013. He stated that
the note had to be read in its entirety, from which a sensible view of what you were
indicating could be taken. He submitted that on the Maudsley NHS Foundation
Trust prescribing guidelines in Psychiatry (the Maudsley Guidelines) Risperidone
was the only drug licensed for such a treatment in the context of autism and stated
that Patient As mother understood that clinical anxiety was being treated.

36. The tribunal considered the evidence of Dr Ahmed who, in regard to 9 April
2013, stated, Dr Murphy has not expressed what symptoms Patient A was
presenting with to indicate that he had significant clinical anxiety. The tribunal
determined it was unreasonable to expect you to include the entire history of Patient
As symptoms in the single note, and that the notes from the clinical record should
be read in conjunction with each other and not in isolation.

37. The tribunal had sight of the note from Dr Johnson dated 19 March 2013,
when Patient A was admitted into Slade House. The note states that there might be
other treatment options including low dose Risperidone which might be helpful for
rapid control of agitation The tribunal acknowledged that the note refers to
agitation rather than anxiety, but determined that it was valid to read them
synonymously. It accepted that it was plausible a conversation had taken place
between yourself and Dr Johnson when Patient A was admitted where medication
had been discussed. The tribunal acknowledges that the note keeping requires much
improvement, but it was clear that the symptoms experienced by Patient A were due
to significant clinical anxiety.

7
38. The tribunal had regard to the notes of the CTM meeting on 8 April 2013.
Concerning the introduction of Risperidone, the notes state that She [you] explained
that we would be using it to treat his anxiety and that we have found it helpful in
taking the edge off. The tribunal determined that it was clear from these notes that
you had indicated that Patient A was experiencing significant clinical anxiety as the
introduction of Risperidone was to treat this. Accordingly, sub-paragraph 4a is found
not proved.

b. explain the benefits, risks and side effects of Risperidone to Patient

A; Has been Found Proved

39. Ms Fairley again submitted that your note of your communication with Patient
A on 9 April 2013 is extremely brief and stated that it did not include a record that
you had explained the benefits, risks and side effects of Risperidone to Patient A. Ms
Fairley submitted that you have accepted that there is no clear record of this in the
notes made on 9 April and, in her submissions, in the absence of any record of these
matters there is no indication that it had occurred.

40. Mr Partridge submitted that part of the fabric of prescribing medication is to

explain the benefits, risks and side effects to the patient. He directed the tribunal to
your witness statement where you explained that it is my usual practice to discuss
the medication with the patient, giving usual side effects He further advised the
tribunal that you had provided Patient A with an easy read leaflet to assist the
process.

41. The tribunal had regard to Dr Ahmeds report which states that Dr Murphy
did not indicate that she had explained or tried to explain to Patient A about the
benefits, risks and side effects of Risperidone. The tribunal gave weight to Dr
Ahmeds report as it could not see any reference to this in the notes that you
recorded on 9 April 2013.

42. Although you had already decided that Patient A did not have the capacity to
understand the information being provided to him, the tribunal determined that you
should have nevertheless attempted to explain the benefits, risks and side effects of
Risperidone to Patient A. You said in your witness statement that you explained to
Patient As mother the risk of Risperidone lowering the threshold for seizures,
however you have also failed to record this in your notes. In her evidence, Patient
As mother advised the tribunal that she could not recall a conversation with you
about that, and she did not recall being given a leaflet explaining the risks, benefits
or side effects of prescribing Risperidone.

43. The tribunal also had regard to Consent: Patients and Doctors Making
Decisions Together (2008), paragraph 75:

75 In making decisions about the treatment and care of patients who lack
capacity, you must:

c support and encourage patients to be involved, as far as they
want to and are able, in decisions about their treatment and
care

The tribunal determined that the information you claimed to have provided to
Patient As mother in your oral evidence, in combination with giving Patient A an
easy read leaflet does not amount to attempting to explaining the risks, benefits and
side effects of Risperidone to Patient A as it does not satisfy the criteria to support
and encourage patients to be involved, as far as they want to and are able.
Accordingly, the tribunal found sub-paragraph 4b of the allegation proved.

c. indicate whether lorazepam had been used and/or whether it was

effective; Has been Found Not Proved

44. Ms Fairley submitted that within your notes there is no record that you gave
any consideration to the use of Lorazepam or how it had been used in the previous
treatment of Patient A. She stated there was a failure in the notes to detail what
effect it had upon Patient A and whether it helped his condition.

45. Mr Partridge submitted that that indicate is the important word in the
charge. He stated that this had been prescribed previously and as such it was not
your responsibility to indicate whether lorazepam had been used as it should already
have been indicated within Patient As notes.

46. The tribunal considered Dr Ahmeds report which stated that Patient A was
previously prescribed as required lorazepam, Dr Murphy did not indicate whether the
lorazepam had been used and/or if it was effective. The tribunal noted that the
Lorazepam had previously been prescribed by another practitioner and that there
was no change to it being prescribed as required. It noted that you had not made
any notes about the use of Lorazepam, but acknowledged to do so would have been
unnecessary as you were already aware that he was taking the drug when needed.
It also noted Lorazepam was only effective for controlling anxiety on a short term
basis. The tribunal determined that although you favoured the used of Risperidone
to Lorazepam, this did not establish any duty on you to indicate whether lorazepam
was effective or not. It is clear from the notes that Lorazepam had been used and
was still being used when needed. Accordingly, the tribunal found sub-paragraph 4c
not proved.

d. make a diagnostic formulation for its administration. Has been

Found Not Proved

47. Ms Fairley submitted that your note of your communication with Patient A on
9 April 2013 did not reference a diagnostic formulation for the administration of
Risperidone. Ms Fairley acknowledged that, from your oral and documentary
evidence, you have stated that you conducted the diagnostic formulation internally,
however it is the GMCs submission that as there is no record of these internal
processes the tribunal cannot be confident that they were completed.

48. Mr Partridge submitted that this was not a charge about record keeping, but a
charge regarding clinical action, diagnosing, formulating and exploring the causes of
the conditions and assessing them. He stated that such activity is normally
demonstrated by the clinicians notes, but in this case the notes should be combined

9
with all of the information in the records. In his submissions, this would lead to a
sensible conclusion as to what you were thinking and doing at the time.

49. The tribunal had regard to the notes of the CTM meeting, dated 8 April 2013
which record that you explained risperidone would be used to treat Patient As
anxiety and you would then look at weaning Patient A off fluoxetine. It had sight of
Dr Ahmeds Psychiatric Report which stated Prescribing antipsychotic drugs with
potential long-term side-effects on a symptomatic basis without a diagnostic
formulation can be viewed as inappropriate use of medication. He continued to say
that anxiety would be deemed to be a symptom rather than a diagnosis. The
tribunal acknowledged that Dr Ahmed viewed anxiety as a symptom of another
issue, however it appeared to the tribunal that your diagnosis was that Patient As
anxiety was a clinical condition, and not just a symptom. In your view, you had
made a clinical decision to treat the anxiety and supplied medication to address it.
As such, the tribunal found that you did make a diagnostic formulation for the
administration of risperidone and accordingly, found sub-paragraph 4d not proved.

Paragraph 5
On 16 April 2013, your completion of a mental capacity assessment form for
Patient A, regarding his decision to remain on the ward as an informal
patient, was inadequate in that you failed to:

a. make a contemporaneous assessment of his mental capacity; Has

been Found Not Proved

50. Ms Fairley submitted that none of the language within the entries in the boxes
of the Medical Capacity Assessment (MCA) form indicated that you had completed
the form contemporaneously. There is no record of you seeing Patient A on this day.
In this instance she referenced the Psychiatric Report of Dr Ahmed who supported
this claim, stating Dr Murphy makes a reference to us which suggests that Dr
Murphy completed the mental capacity assessment form based on historical
information.

51. Mr Partridge submitted that the tribunal should look at this charge with care
and not be overly forensic when interpreting notes made for a clinical purpose. He
drew the tribunals attention to points within your notes when you had referred to
Patient As condition in the present tense. Mr Partridge also stated that you
combined this with relevant historical evidence which would inform anyone checking
the notes of Patient As past condition.

52. The tribunal considered that there were parts of the MCA form completed on
16 April 2013 which pointed towards a contemporaneous assessment, namely that
Patient A is currently unable to think through the consequences of him leaving the
ward[he] cannot understand this at the moment; and his high levels of anxiety is
[sic] preventing him for [sic] weighing up the pros and cons.

53. The tribunal noted that within your RiO entry timed at 12:11 hours on 16 April
2013 you stated I intend discharging [Patient A] from S2 today. However, you had
already signed the form discharging Patient A from detention under Section 2 MHA
at 12:10 hours the same day. Whilst the tribunal noted that using the future tense

10
seemed unusual if you had made a contemporaneous mental health capacity
assessment of Patient A, the tribunal could not conclude, with this evidence alone,
that you had not done so.

54. The tribunal considered your oral evidence in which you stated that you had
difficulty using the computer system which had been newly implemented at Slade
House and that your turn of phrase may not have indicated your exact thoughts.
The tribunal was concerned that, as a clinician, you should be competent in using
the system in which to record your patients notes.

55. The tribunal determined that although there were some question marks
regarding your turns of phrase that this did not demonstrate that you had not
completed a contemporaneous mental capacity assessment. Accordingly, it found
sub-paragraph 5a not proved.

b. arrange a best interest meeting to discuss the advantages and

disadvantages to decide what was in his best interests. Has been
Admitted and Found Proved.

Paragraph 6
On 21 May 2013, Your completion of a subsequent mental capacity
assessment form for Patient A, regarding his consent to treatment was
inadequate in that you failed to:

a. indicate any specific treatment; Has been Found

Not Proved

56. Ms Fairley submitted that in your second MCA form completed between 21
May 25 June 2013 you had not indicated any specific treatment for Patient A. She
advised the tribunal to consider the Psychiatric Report of Dr Ahmed who she stated
confirmed that he would have expected there to be an indication of each of the
aspects identified at paragraph 6 a to f when completing the MCA. She stated that
there was no record within the documentation where this information has been
clearly recorded.

57. Mr Partridge submitted that the mental capacity assessment form should be
taken as a whole. He stated that, in his oral evidence, Dr Ahmed accepted that this
is the approach that should be taken. Furthermore, Mr Partridge submitted that the
form does indicate specific treatment as it references risperidone.

58. During cross examination Dr Ahmed conceded that it was clear that the form
related to treatment with Risperidone. The tribunal had regard to Dr Ahmeds oral
evidence in which he stated I would expect to see a specific indication of the
treatmentalthough risperidone is mentionedyou need to mention other drugs as
well. The tribunal noted that this seemed to be based on Dr Ahmeds opinion alone
and that there was nothing to suggest that other drugs had to be mentioned as well.

59. The tribunal also had regard to the MCA form template. It noted that the form
consists of a series of drop down boxes in which the options you could select are
limited. One of those boxes, identify the area for which capacity was being assessed,

11
was simply labelled consent to treatment. It also noted that Dr Ahmed had not had
experience of this template and therefore he might not realise the restrictions of it.

60. Furthermore, the tribunal noted that the on the form risperidone is referenced
on two occasions and as such the tribunal determined that it was inaccurate to
conclude that you did not indicate any specific treatment. Accordingly, the tribunal
concluded that sub-paragraph 6a has been found not proved.

b. make a specific assessment of his mental capacity; Has been

Found Not Proved

61. Ms Fairley submitted that there should have been more details provided
regarding the assessment of Patient As mental capacity and that the contents of the
form are inadequate.

62. Mr Partridge submitted that the medical assessment form should be looked at
in combination with the RiO notes.

63. The tribunal had regard to the MCA form dated 21 May 2013 and updated 25
June 2013. It noted that in each section you had completed the box to provide
details regarding your answer. It did note that you had incorrectly selected no to
answer five, which you informed the tribunal you had done in error during your oral
evidence. It determined that taken in context with the rest of the form, it was
apparent that this had been done in error and it did not confuse the overall reading
of the form.

64. It further noted that during cross examination Dr Ahmed conceded that it was
clear that the form related to treatment with risperidone.

65. The tribunal found that the form was completed in detail and that the core
questions of the form were all answered adequately. As such, the tribunal found
sub-paragraph 6b not proved.

c. establish whether he was able to understand the advantages and

disadvantages of taking psychotropic medication; Has been
Found Proved

66. Ms Fairley submitted that in the absence of information recording advice

given as to side-effects and risks of taking psychotropic medication and reference to
his understanding of the advantages and disadvantages of taking such medication,
the tribunal should conclude that you failed to establish Patient As understanding of
this aspect.

67. Mr Partridge submitted that establishing whether Patient A was able to

understand the advantages and disadvantages of taking psychotropic medication
was implicit as the conclusion records that [Patient A] would not communicate in
any manner He stated that this makes it clear that you had established that
Patient A would be unable to understand the information being given to him.

12
68. The tribunal had regard to Dr Ahmeds oral evidence during cross examination
in which he stated that he would not expect this information to be explicitly stated in
the form. However, the tribunal noted that there was no reference to this in the RiO
entry either.

69. The tribunal bore in mind the ethical framework which advises that a
practitioner should assume that the patient has capacity, and some attempt should
be made to explain relevant information to the patient. It determined that although
you may have concluded that Patient A was not able to understand, there still should
have been an attempt to explain these matters to him appropriately.

70. The tribunal had regard to your documentary evidence in which you stated I
would have discussed medication with Patient A in terms that he would have been
able to understand, I would have tried to explain the risks and benefits however it
felt that this evidence states what you believe you would have done, not that you
did this.

71. The tribunal further noted that you had stated a leaflet detailing the
information regarding psychotropic medication was provided to Patient As mother,
however in her evidence, Patient As mother stated she did not remember this being
given to her.

72. As this information is not detailed on the form and there is no RiO entry to
confirm that this occurred, and you have no specific recollection of discussing these
matters with Patient A, the tribunal could not in this instance conclude that you had
done this. As such, sub-paragraph 6c has been found proved.

d. highlight whether any alternative drug was suggested; Has been

Found Not Proved

73. Ms Fairley submitted that the MCA form should have indicated whether an
alternative drug was suggested in place of Risperidone and pointed to Dr Ahmeds
evidence where he confirmed he would have expected there to be an indication of
this.

74. Mr Partridge submitted that the charge presupposes there was a reasonable
alternative option that it was mandatory for you to consider, however he submitted
that if the drug in use was effective and you believed there to be no viable
alternative then there was no requirement to suggest an alternative drug. He also
referred to the Maudsley Guidelines in the context of this part of the allegation.

75. The tribunal considered your evidence in which you stated you did not believe
that there was an appropriate alternative. It determined that you did not have a
duty to suggest any alternative drug, as Risperidone appeared to be working, and
Lorazepam was already being used on a PRN basis. Dr Ahmed accepted that the
use of Lorazepam was only appropriate for the short term, due to patients building
up resistance to the drug. The tribunal noted that Patient A had been prescribed
Lorazepam on a PRN basis already.

13
76. Accordingly, the tribunal found sub-paragraph 6d not proved.

e. explain the side-effects and risks of taking psychotropic

medication; Has been Found Proved

77. Ms Fairley submitted that the MCA form you completed did not indicate you
explained the side-effects and risks of taking psychotropic medication. She submitted
that this should have been explained to Patient A.

78. Mr Partridge again submitted that you had explained the side-effects and risks
of taking psychotropic medication by providing Patient As mother with a leaflet
explaining this information.

79. As referenced earlier in the determination, the tribunal noted that, during her
oral evidence, Patient As mother stated that she could not recall if a leaflet had
been given to her or not. The tribunal considered that even if a leaflet had been
supplied to Patient As mother, this did not constitute an explanation to Patient A of
the side-effects and risks of taking psychotropic medication. The tribunal also bore in
mind the guidance of paragraph 75 of Consent: Patients and Doctors Making
Decisions Together.

80. As there was no record of this being explained in the RiO notes or on the MCA
form, and you have no specific recollection of discussing these matters with Patient
A, the tribunal concluded that this had not been explained to him. As such, the
tribunal found sub-paragraph 6e proved.

f. arrange a best interest meeting. Has been Admitted and Found

Proved.

Paragraph 7
In your review of Patient A on the following dates:

a. 09 April 2013;
b. 30 April 2013;
c. 13 May 2013;
d. 20 May 2013;
e. 18 June 2013;
f. 1 July 2013;

you failed to:

i. make an assessment about his mental state; Has been

Found Proved (in relation to a) Has been Found
Not Proved (in relation to b,c,d,e,f)

81. Ms Fairley submitted that there was no clear documentation within the
records of your reviews of Patient A on the dates listed detailing an assessment
about his mental state. She stated that your explanation that you had difficulties

14
with access to the computer and recording information digitally was inadequate and
did not withstand scrutiny.

82. Mr Partridge submitted that this was an allegation about diagnosing and
formulating a plan exploring the causes of Patient As mental state and assessing it.
He submitted that the assessment would typically be addressed in the clinicians
notes and that in this case, all of the notes should be looked at together.

83. The tribunal determined that there was not a requirement for you to make a
mental assessment of Patient A every time you were in contact with him, but only
when there was a trigger event, meaning when an incident occurred which called
for the matters covered at either paragraph 7i or 7ii a-c to be reviewed. The tribunal
considered that two of the dates above did fit this criteria: 9 April 2013, as this was
your first interaction with Patient A following your return from leave; and 20 May as
Patient A had bitten his tongue and there were concerns about whether he had
suffered a seizure. As such sub-paragraph 7b, c, e and f were found not proved in
relation to sub-paragraph 7i.

84. The tribunal had sight of the RiO entries on the dates listed above. On 9 April
2013, the tribunal could find no record of you making an assessment regarding the
mental state of Patient A. It noted in your evidence that you stated your
assessments were formulated internally, however the tribunal considered that, as a
clinician, your record keeping is a large part of your responsibility. As there was no
record of this assessment being done when you had only returned from leave the
previous day and therefore assumed responsibility for the first time for Patient As
care as his responsible clinician, it concluded that there had been no assessment of
those matters covered in paragraph 7i and ii a-c on that occasion. Accordingly, the
tribunal found sub-paragraph 7a had been found proved in relation to 7i.

85. On 20 May 2013 the obligation on you was to assess whether Patient A had
suffered a seizure, rather than to assess his mental state. Accordingly, the tribunal
found sub-paragraph 7d was found not proved in relation to 7i.

ii. formulate:

a. a diagnosis;
b. an aetiology;
c. a risk assessment.
Has been Found Proved (in relation to a and d)
Has been Found Not Proved (in relation to b, c, e,
f)

86. Ms Fairley submitted that there was no clear record that you had formulated
a diagnosis, an aetiology or a made a risk assessment of Patient A on any of the
dates listed above. She stated that your difficulties using the new system on the
computer and recording information electronically were not an adequate explanation
for not formulating a diagnosis, or failing to do so.

15
87. Mr Partridge submitted that in the CTM notes it is quite obvious that the team
and yourself had assessed Patient As mental state and reached a diagnosis,
formulated an aetiology and completed a risk assessment.

88. Again, the tribunal considered the dates that they had highlighted as trigger
events, namely 9 April 2013 and 20 May 2013. The tribunal determined that there
was no need to formulate a diagnosis on the other mentioned dates as there was no
significant change in Patient As condition.

89. The tribunal considered the RiO entry dated 9 April 2013 and noted that there
was no reference to a diagnosis being formulated on this date. The tribunal did
acknowledge that Dr Johnson had previously formulated a diagnosis at the time of
Patient As admission and it considered your evidence that you had discussed this
with Dr Johnson. However, the tribunal determined that as Patient As Consultant
Psychiatrist, it was your responsibility to formulate a diagnosis on your return and
record this in your notes. As the tribunal could not find any evidence of this, the
tribunal determined that sub-paragraph 7a was found proved in relation to 7ii (a-c).

90. The tribunal considered the RiO entry dated 20 May 2013. It noted that
although you had recorded that Patient A had bitten his tongue, and were aware
that this was potentially a sign of a seizure, you failed to complete a diagnosis,
aetiology or a risk assessment. The tribunal was mindful of your evidence that these
were processes that you completed internally, however the tribunal had no clear
evidence to support this. It considered it a serious failing that you had not
completed a diagnosis, an aetiology or a risk assessment of Patient A when he had
potentially suffered a seizure. Accordingly, the tribunal found sub-paragraph 7d
proved in relation to 7ii (a-c).

Paragraph 8
In your record keeping of Patients A consultations, you failed to:

a. make comprehensive notes; Has Been Admitted and Found

Proved.

b. record adequate information regarding his:

i. symptoms; Has Been Admitted and Found Proved.

ii. signs; Has Been Admitted and Found Proved.

iii. diagnostic formulation; Has been Admitted and Found

Proved.

iv. risk assessment; Has been Admitted and Found

Proved.

v. management plan. Has been Admitted and Found

Proved.

Paragraph 9

16
You failed to meet Patient As clinical needs in that you did not:

a. implement and/or develop an adequate care and detailed

management plan, particularly regarding his epilepsy, at the point
of admission; Has been Admitted and Found Proved.

b. formulate any treatment plans, in that you did not specifically

indicate:

i. a working diagnosis; Has been Admitted and Found

Proved.

ii. the possible reasons for Patient As presentation; Has

been Admitted and Found Proved.

iii. any specific treatment plan (save for the prescribing of

risperidone). Has been Admitted and Found Proved.

Paragraph 10
You failed to meet Patient As clinical needs specifically relating to his epilepsy
and bathroom/shower needs in that you did not:

a. acknowledge that he was at an increased risk of having a further

epileptic seizure on the ward; Has been Admitted and Found
Proved.

b. carry out a risk assessment to identify the risks concerned with the
condition; Has been Admitted and Found Proved.

c. consider the implications of allowing him to have a bath on his own

with staff observing him every 15 minutes; Has been Admitted
and Found Proved.

d. follow the:

i. National Institute for Health and Care Excellence

guidelines (NICE guidelines); Admitted and found
proved.

ii. Epilepsy Action advice which was referred to within the

care plan that was prepared by the nursing staff on 24
April 2013. Admitted and found proved.

Paragraph 11
You failed to obtain a history of Patient As epilepsy to include:

a. Patient As presentation:

17
 i. before a seizure; Has been Admitted and Found
Proved.

ii. during a seizure; Has been Admitted and Found

Proved.

iii. after a seizure; Has been Admitted and Found

Proved.

b. the duration of seizures; Has been Admitted and Found

Proved.

c. whether seizures made Patient A:

i. incontinent; Has been Admitted and Found Proved.

ii. bite his mouth or tongue; Has been Admitted and

Found Proved.

iii. experience headaches; Has been Admitted and Found

Proved.

iv. experience tiredness; Has been Found Proved.

91. Ms Fairley submitted that in Dr Ahmeds evidence he indicates that within the
records, there is no mention that you obtained a detailed history regarding Patient
As epilepsy. She submitted that even within the nursing care plan, dated 24 May
2013, Dr Ahmed notes that there is no precise information regarding the seizures
and whether Patient A experienced tiredness. She further submitted that it was your
responsibility to obtain this information and Dr Ahmed considered it was vital to do
so because epilepsy is associated with increased risk of injury and possible death.

92. Mr Partridge submitted that as you already knew that epilepsy would cause
Patient A to experience tiredness there was no requirement to obtain the
information.

93. The tribunal noted that in your documentary and oral evidence you stated
that you did not take a history of this because you knew it already. You stated that
experiencing tiredness after a seizure was obvious and as such, there was no need
to record this information.

94. The tribunal also noted that on 21 May 2013 you received an email sent from
Patient As mother to a colleague, Ben Morris, which said that Patient A had been
dozy when she visited the previous day. You had not obtained a history of Patient
As epilepsy before 20 May 2013. You did not follow that email up by making any
further enquiries of Patient As mother yourself.

95. The tribunal determined that having information about whether Patient A
experienced tiredness after a seizure was important for understanding whether
Patient A had suffered a seizure on 20 May 2013. It concluded this was an error on

18
your part as this aspect of the history had not been taken by you. Accordingly, the
tribunal found that sub-paragraph 11c iv has been found proved.

v. need to sleep; Has been Found Proved

96. Ms Fairley again submitted that in the nursing care plan dated 24 May 2013
there was no detailed history regarding Patient As epilepsy. She relied again on Dr
Ahmeds Psychiatric Report and the evidence he gave, as outlined above.

97. Mr Partridge submitted that you did not use the phrase need to sleep and he
referred the tribunal to your documentary evidence in which he you state that a
colleague had recorded that Patient As mother had raised concerns that Patient A
appeared sleepy which in her experience was a possible side effect of seizure
activity. Mr Partridge submitted that there could be a subjective interpretation of
sleepy and/or tired, but they meant the same thing.

98. The tribunal noted that you had failed to take a history in relation to the
various side effects of Patient As seizures. The tribunal determined that it would
have been appropriate for you to ring Patient As mother and query what the
signifiers of a seizure would be.

99. The tribunal again determined that having this information would have
assisted you when assessing whether Patient A had suffered a seizure on 20 May
2013 or not. It concluded that taking a detailed medical history is an integral part of
your role as a clinician, especially in regard to indications of seizures. The tribunal
determined it was an error that this had not been completed. Accordingly, the
tribunal found that sub-paragraph 11c v has been found proved.

d. the recovery time after a seizure. Admitted and found proved.

Paragraph 12
You failed to obtain the information indicated at paragraph 11 during
discussions with Patient As:

a. family; Admitted and found proved.

b. neurologist. Admitted and found proved.

Paragraph 13
You failed to record the information as set out at paragraphs 11-12 above in
Patient As medical notes. Admitted and found proved.

100. Today is the last scheduled date for this hearing and therefore the hearing
will be adjourned part-heard. Parties have been consulted and the following dates
have been agreed by all concerned:

Sunday 5 November 2013

Monday 6 November 2013
And
Saturday 11 November 2013

19
 Sunday 12 November
And
Two further days that are yet to be agreed

When the tribunal reconvenes on Sunday 5th November, it will invite further
submissions to be adduced at the impairment stage.

20