PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate....

22
Record of Determinations – Medical Practitioners Tribunal MPT: Dr MUKHERJEE 1 PUBLIC RECORD Dates: 16/03/2020 - 18/03/2020 Medical Practitioner’s name: Siddhartha MUKHERJEE GMC reference number: 4625300 Primary medical qualification: MB BS 1987 Burdwan University Type of case Outcome on impairment New - Misconduct Impaired New - Determination by other regulator Impaired Summary of outcome Suspension, 4 months. Tribunal: Legally Qualified Chair Mr James Newton-Price Lay Tribunal Member: Ms Bronwen Cooper Medical Tribunal Member: Mr Julian Williams Tribunal Clerk: Mrs Lorraine Cheetham 16/03/2020 Ms Angela Carney 16/03/2020 to 18/03/2020 Attendance and Representation: Medical Practitioner: Not present and not represented Medical Practitioner’s Representative: N/A GMC Representative: Ms Katie Jones, Counsel Attendance of Press / Public In accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 the hearing was held in public.

Transcript of PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate....

Page 1: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 1

PUBLIC RECORD Dates 16032020 - 18032020

Medical Practitionerrsquos name Siddhartha MUKHERJEE

GMC reference number 4625300

Primary medical qualification MB BS 1987 Burdwan University

Type of case Outcome on impairment New - Misconduct Impaired

New - Determination by other regulator Impaired

Summary of outcome

Suspension 4 months

Tribunal

Legally Qualified Chair Mr James Newton-Price

Lay Tribunal Member Ms Bronwen Cooper

Medical Tribunal Member Mr Julian Williams

Tribunal Clerk Mrs Lorraine Cheetham 16032020 Ms Angela Carney 16032020 to 18032020

Attendance and Representation

Medical Practitioner Not present and not represented

Medical Practitionerrsquos Representative NA

GMC Representative Ms Katie Jones Counsel

Attendance of Press Public In accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 the hearing was held in public

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MPT Dr MUKHERJEE 2

Overarching Objective Throughout the decision making process the tribunal has borne in mind the statutory overarching objective as set out in s1 Medical Act 1983 (the 1983 Act) to protect promote and maintain the health safety and well-being 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 that profession Determination on Facts - 17032020 Background 1 Dr Mukherjee qualified as a doctor in India in 1987 He worked in the United Kingdom from 1994 to 1999 and in 2004 went to work in Ontario Canada Whilst in Canada Dr Mukherjee treated lsquothe complainantrsquo in May 2009 In 2010 the complainant started to work as a part-time nurse in the labour ward at the hospital where Dr Mukherjee was working In March 2012 Dr Mukherjee and the complainant began an intimate relationship which ended in January 2014 The relationship was dysfunctional and included acts of violence and intimidation In January 2015 Dr Mukherjee appeared before Justice Robert Selkirk at the Ontario Court of Justice on two counts of mischief (damaging the complainantrsquos property) and one count of uttering threats to the complainant to cause her death or bodily harm 2 The Allegation that has led to Dr Mukherjeersquos hearing can be summarised as on 23 February 2015 Dr Mukherjee was made the subject of an order for conditional discharge for a period of 12 months in respect of three offences two acts of mischief and one act of uttering threats under the Criminal Code of Canada 3 The first count was Dr Mukherjee being charged with unlawful entry and mischief The incident occurred on 13 August 2013 when the complainant took her daughter to Toronto without telling Dr Mukherjee Dr Mukherjee called and repeatedly texted the complainant but she refused to respond as she was disappointed with his response to her birthday Dr Mukherjee became angry at the complainantrsquos refusal to respond and attended her residence Dr Mukherjee broke open her garage door and entered her garage The complainantrsquos car was not in the garage nonetheless Dr Mukherjee entered the residence and called the complainantrsquos mobile phone from her landline phone The complainant answered the call and recorded part of the conversation The recording was provided to the court and from Dr Mukherjeersquos tone of voice it was obvious that he was enraged Amongst other things he told the complainant lsquoYou will pay for thisrsquo Dr Mukherjee left a birthday card and flowers at the complainantrsquos house On the card he wrote the complainants full name and lsquoYou could have and should have waitedhellip life is full of surprisesrsquo Dr Mukherjee testified that he deliberately and wilfully forced the door

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MPT Dr MUKHERJEE 3

open and thereby damaged it Dr Mukherjee subsequently paid for a replacement door 4 The second count of mischief occurred on 23 December 2013 which resulted in damage to the complainantrsquos car Dr Mukherjee and the complainant had been arguing at her home Dr Mukherjee left in his car The complainant realised that Dr Mukherjee had left a bag of laundry so she got in her car with the intention of delivering it to Dr Mukherjee Dr Mukherjee realised he had left his Ipad and was returning to the complainantrsquos house and the two cars met at an intersection The complainant got out of the car to deliver the laundry bag and reached into Dr Mukherjeersquos car and retrieved a designer handbag that had been a gift which she had returned to him earlier Dr Mukherjee then drove his car into the front left corner of her car He then backed up and proceeded to drive into the front left side of the complainantrsquos car causing damage to the bumper and lights Dr Mukherjee agreed that they had been arguing but claimed his car slipped in the snow and he hit her car accidentally 5 The count of uttering threats was established by text messages as follows lsquoU have got me mad Irsquom fucking killing yoursquo lsquoI will kill you somedayrsquo lsquo[full name of complainant] I will slit your throat Irsquom slick surgeon you should know thatrsquo The text messages were sent in late 2013 6 On 23 February 2015 Dr Mukherjee was sentenced to a conditional discharge and 12 monthsrsquo probation The terms of that order included requirements that Dr Mukherjee undertake counselling assessment or treatment as directed that he have no contact with the complainant that he should comply with a hospital safety plan and that he should make a $1000 charitable donation 7 It is alleged that Dr Mukherjee failed to notify the General Medical Council (the GMC) of being found guilty of the offences and of the conditional discharge without delay 8 It is also alleged that on 4 March 2019 the College of Physicians and Surgeons of Ontario (the CPSO) determined that Dr Mukherjee had committed an act of professional misconduct and directed Dr Mukherjee to attend before a panel to be reprimanded The outcome was that Dr Mukherjeersquos registration was suspended for 6 months and he was ordered to complete intensive instruction in anger management The Outcome of Applications Made during the Facts Stage 9 The Tribunal granted the GMCrsquos application made pursuant to Rules 20 and 40 of the General Medical Council (Fitness to Practise Rules) 2004 as amended (lsquothe Rulesrsquo) that service had been effected The Tribunalrsquos full decision on the application is included at Annex A

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MPT Dr MUKHERJEE 4

10 The Tribunal granted the GMCrsquos application made pursuant to Rule 31 of the Rules to proceed in Dr Mukherjeersquos absence The Tribunalrsquos full decision on the application is included at Annex B 11 The Tribunal determined of its own volition made pursuant to 17(6) of the Rules to amend the stem of paragraph 1 The amendment was made as paragraph 1 contained an incorrect date Paragraph 1 is amended as follows

lsquo1 On 23 May February 2015 at Ontario Court of Justice you were made the subject of an order for conditional discharge for a period of 12 months in respect of offences under the Criminal Code of Canada consisting ofrsquo

The Allegation and the Doctorrsquos Response 12 In light of Dr Mukherjeersquos response to the Allegation made against him the Tribunal is required to determine all of the facts as follows

1 On 23 May February 2015 at Ontario Court of Justice you were made the subject of an order for conditional discharge for a period of 12 months in respect of offences under the Criminal Code of Canada consisting ofrsquo

a mischief (two counts) pursuant to section 430(4) To be determined b uttering threats to cause death or bodily harm pursuant to section 2641 (1)(a) To be determined

2 You failed to notify the GMC without delay that you had been a found guilty of the criminal offences detailed in paragraph 1 To be determined b conditionally discharged of the criminal offences detailed in paragraph 1 To be determined

3 On 4 March 2019 The College of Physicians and Surgeons of Ontario a determined you had committed an act of professional misconduct in that you had been found guilty of an offence that is relevant to your suitability to practise and you had engaged in an act or omission relevant to the practice of medicine that having regard to

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MPT Dr MUKHERJEE 5

all the circumstances would reasonably be regarded by members as disgraceful dishonourable or unprofessional To be determined

b directed you attend before the panel to be reprimanded To be determined

c suspended your certificate of registration for a period of six months commencing immediately To be determined

d ordered you to at your own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than 12 months from the date of the Order To be determined

The Evidence 13 The Tribunal received evidence on behalf of the GMC in the form of a witness statement from the following witness who was not called to give oral evidence

bull Mr A Investigation Officer GMC Documentary Evidence 14 The Tribunal had regard to the documentary evidence provided by the parties The Canadian spelling has been retained where appropriate This evidence included but was not limited to

bull Reasons for Judgement from Ontario Court of Justice dated 12 January 2015 bull Transcript from sentencing hearing from Ontario Court of Justice dated 23

February 2015 bull Referral from College of Physicians and Surgeons of Ontario (the CPSO dated

7 September 2017 bull Extract from the CPSO website confirming Practise restrictions dated 4 March

2019 bull Determination from the CPSO dated 4 March 2019

bull Statements provided by Dr Mukherjee dated 16 April 2018 25 March 2019 4 August 2019 10 January 2020 and 26 February 2020

bull XXX bull XXX bull Certificate of attendance on Understanding Boundaries and Managing the

Risks course dated 5 June 2015 bull Emails from Dr Mukherjee to GMC dated 30 October 2017 and 7 August 2018

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MPT Dr MUKHERJEE 6

bull DBS certificate dated 12 September 2019 bull XXX bull Canadian Criminal Record Check undated

bull Email from CPSO to Dr Mukherjee dated 12 December 2019 bull Extract from CPSO website confirming no restrictions dated 26 December

2019 bull Patient reviews from ratemdscom and ontariodoctordirectyca dated from

2012 to 2019 The Tribunalrsquos Approach 15 In reaching its decision on facts the Tribunal has borne in mind that the burden of proof rests on the GMC and it is for the GMC to prove the Allegation Dr Mukherjee does not need to prove anything The standard of proof is that applicable to civil proceedings namely the balance of probabilities ie whether it is more likely than not that the events occurred The Tribunalrsquos Analysis of the Evidence and Findings 16 The Tribunal has considered each paragraph of the Allegation separately and has evaluated the evidence in order to make its findings on the facts Paragraph 1 17 The Tribunal has noted the reasons for the judgement against Dr Mukherjee from Justice Robert Selkirk of the Ontario Court of Justice dated 12 January 2015 It has also taken account of the transcript from sentencing hearing dated 23 February 2015 18 The Tribunal noted Dr Mukherjeersquos email to the GMC dated 10 January 2020 in which he confirmed the allegations of two counts of mischief pursuant to section 430(4) and one count of uttering threats pursuant to section 2641(1)(a) In this email Dr Mukherjee stated that he was not lsquoconvictedrsquo of any criminal offence but was given a lsquoconditional dischargersquo He accepted however that he was found guilty of the offences in his email to the GMC dated 15 March 2019 19 Given the documentary evidence and Dr Mukherjeersquos own confirmation in his email the Tribunal was satisfied that on 23 February 2015 at Ontario Court of Justice he was made the subject of an order for a conditional discharge in relation to two counts of mischief and one count of uttering threats to cause death or bodily harm having been found guilty of those offences 20 Accordingly the Tribunal found paragraph 1 proved

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MPT Dr MUKHERJEE 7

Paragraph 2 21 The Tribunal first considered whether or not Dr Mukherjee was under a duty to inform the GMC firstly that he had been found guilty of the criminal offences detailed in paragraph 1 and secondly that he had been conditionally discharged in relation to the criminal offences 22 The Tribunal took account of paragraph 75 in the GMCrsquos guidance Good Medical Practice (The GMP) which states

lsquo75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence

c another professional body has made a finding against your registration as a result of fitness to practise procedures

23 The Tribunal noted that Dr Mukherjee has been registered with the GMC since 25 June 1999 and continued to be registered whilst he was working in Canada 24 The Tribunal was satisfied that as Dr Mukherjee was registered with the GMC he had a duty under GMP to inform the GMC that he had been found guilty of criminal offences and received a conditional discharge for those offences 25 The Tribunal took account of Mr Arsquos witness statement in which he confirmed that all communication including all documents telephone notes emails and letters between the GMC and the doctor are recorded in electronic form on a database called Siebel Mr A confirmed from reviewing Dr Mukherjeersquos history on Siebel that there is no record of the GMC receiving notification from Dr Mukherjee or a third party that he had been found guilty of the criminal offences and received a conditional discharge for those offences 26 The Tribunal noted Dr Mukherjeersquos statement in his email to the GMC dated 10 January 2020

lsquoI take FULL RESPONSIBILITY for FAILING to notify GMC with regards to events and criminal charges which occurred in January 2014 this omission was unintentional I was not aware about this stipulation in paragraph 75 of GMP I have been Registered without License to practice since 2007 with yearly renewal of Registration during the process of renewal no questions are asked about any charges or change of circumstances If I knew about this stipulation I would most certainly informed GMC without delayrsquo

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MPT Dr MUKHERJEE 8

27 The Tribunal was satisfied that Dr Mukherjee failed to notify the GMC of the criminal offences and the conditional discharge 28 Accordingly the Tribunal found paragraph 2 proved Paragraph 3 29 The Tribunal has taken account of the CPSO Record of Practise restrictions It has also taken account of the email to the GMC dated 7 March 2019 containing the lsquoNotice of Suspension and Terms Conditions and Limitations on the Certificate of Registrationrsquo from the College of Physicians and Surgeons of Ontario which states

lsquoOn March 4 2019 the Discipline Committee ordered and directed that 1 Dr Mukherjee attend before the panel to be reprimanded 2 The Registrar suspend Dr Mukherjees certificate of registration for a period of six (6) months commencing immediately Dr Mukherjee shall comply with the College Policy 2-07 Practice Management Considerations for Physicians Who Cease to Practise Take an Extended Leave of Absence or Close Their Practice Due to Relocation a copy of which forms Schedule A to this Order 3 The Registrar place the following terms conditions and limitations on Dr Mukherjees certificate of registration

a Dr Mukherjee will at his own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than twelve (12) months from the date of this Order

4 Dr Mukherjee pay costs to the College in the amount of $600000 within 30 days of the date of this Orderrsquo

30 The Tribunal noted that Dr Mukherjee accepted in his emails dated 15 March 2019 and 4 August 2019 that he was subject to the regulatory determination and sanction 31 The Tribunal was satisfied having seen the determination from the CPSO dated 4 March 2019 that it was issued to Dr Mukherjee 32 Accordingly the Tribunal found paragraph 3 proved

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 9

The Tribunalrsquos Overall Determination on the Facts 33 The Tribunal has determined the facts as follows

lsquo1 On 23 May February 2015 at Ontario Court of Justice you were made the subject of an order for conditional discharge for a period of 12 months in respect of offences under the Criminal Code of Canada consisting ofrsquo

a mischief (two counts) pursuant to section 430(4) Determined and found proved b uttering threats to cause death or bodily harm pursuant to section 2641 (1)(a) Determined and found proved

2 You failed to notify the GMC without delay that you had been a found guilty of the criminal offences detailed in paragraph 1 Determined and found proved b conditionally discharged of the criminal offences detailed in paragraph 1 Determined and found proved

3 On 4 March 2019 The College of Physicians and Surgeons of Ontario a determined you had committed an act of professional misconduct in that you had been found guilty of an offence that is relevant to your suitability to practise and you had engaged in an act or omission relevant to the practice of medicine that having regard to all the circumstances would reasonably be regarded by members as disgraceful dishonourable or unprofessional Determined and found proved

b directed you attend before the panel to be reprimanded Determined and found proved

c suspended your certificate of registration for a period of six months commencing immediately Determined and found proved

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MPT Dr MUKHERJEE 10

d ordered you to at your own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than 12 months from the date of the Order Determined and found proved

Determination on Impairment - 17032020 1 The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether on the basis of the facts which it has found proved as set out before Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by another regulator The Evidence 2 The Tribunal has taken into account all the evidence received during the facts stage of the hearing both oral and documentary In addition the Tribunal also received a report from Dr E Dr Mukherjeersquos Responsible Officer dated 6 January 2020 Submissions 3 On behalf of the GMC Ms Jones reminded the Tribunal of the two stage test it must apply in relation to misconduct Ms Jones referred the Tribunal to the case of Cheatle v GMC (2009) EWHC 645 (Admin) in relation to the approach to be taken to findings of misconduct and impairment She submitted the misconduct amounts to serious misconduct Dr Mukherjee was convicted by an overseas court of two offences of mischief which would have been charged in this country as criminal damage and also a charge of threats to cause death or bodily harm sent to the complainant She stated that this was a series of offences that occurred over a few months in the context of a dysfunctional relationship which involved intimidation She stated it was an abusive relationship albeit that it was not all one way She submitted that Dr Mukherjeersquos behaviour amounted to serious professional misconduct She submitted that Dr Mukherjee failed to notify the GMC of the criminal offences for two years Ms Jones reminded the Tribunal that it is the registrantrsquos obligation to inform the regulator of any criminal proceedings She submitted that Dr Mukherjeersquos explanation that he did not appreciate it was his duty was unsatisfactory 4 Ms Jones referred the Tribunal to paragraphs 1 and 75 of the GMCrsquos guidance Good Medical Practice (GMP) which state

lsquo1 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

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MPT Dr MUKHERJEE 11

75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence c another professional body has made a finding against your registration as a result of fitness to practise proceduresrsquo

5 Ms Jones submitted that the offences could be categorised as domestic abuse and any involvement by a doctor is very serious indeed She submitted that should the tribunal find misconduct proved it should consider whether Dr Mukherjeersquos fitness to practise is impaired

6 Ms Jones referred the Tribunal to the comprehensive approach in determining impairment formulated by Dame Janet Smith in her Fifth Report on the Shipman Inquiry which states

lsquoDo our findings of fact in respect of the doctors misconduct deficient professional performance adverse health conviction caution or determination show that hisher fitness to practise is impaired in the sense that she

a has in the past acted andor is liable in the future to act so as to put a patient or patients at unwarranted risk of harm andor

b has in the past brought andor is liable in the future to bring the medical profession into disrepute andor

c has in the past breached andor is liable in the future to breach one of the fundamental tenets of the medical profession andor

d has in the past acted dishonestly andor is liable to act dishonestly in the futurersquo

7 Ms Jones conceded that Dr Mukherjeersquos actions have not put patients at risk She submitted that Dr Mukherjeersquos actions have brought the profession into disrepute and that limb b is clearly made out She submitted that it is for the Tribunal to determine whether Dr Mukherjee has breached one of the fundamental tenets of the profession She submitted that Dr Mukherjeersquos behaviour which included his failure to inform the GMC and the finding of the overseas regulator amounted to such a breach 8 She accepted that Dr Mukherjee has demonstrated remediation and remorse but invited the Tribunal to have regard to the nature of the misconduct and breaches of GMP and the seriousness of the misconduct She referred the Tribunal to the principle in

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MPT Dr MUKHERJEE 12

the case of Chaudhary v GMC 2017 EWHC 2561 (Admin) in relation to the need to give sufficient weight to the overarching objective which includes the wider public interest 9 Ms Jones referred the Tribunal to the case of Grant v NMC 2011 EWCH92 (Admin) and the need to uphold proper standards and confidence in the profession She accepted that the case law requires the Tribunal to look at impairment today but it is also required to have regard to the seriousness of the misconduct given the facts found proved She submitted that this is the type of case where notwithstanding Dr Mukherjeersquos personal remediation a finding of impairment is appropriate on public interest grounds 10 Ms Jones submitted that the Tribunal must consider the public interest regarding Dr Mukherjeersquos serious misconduct his failure to report his conviction and the determination by the overseas regulator and therefore a finding of impairment is imperative The Relevant Legal Principles 11 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 Tribunalrsquos judgement alone 12 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 and then whether the finding of that misconduct which was serious could lead to a finding of impairment 13 The Tribunal must determine whether Dr Mukherjeersquos fitness to practise is impaired today taking into account his 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 It was also mindful of the overarching objective as set out in Section 1(A) of the Medical Act and the importance of promoting and maintaining public confidence in the profession and proper standards of conduct 14 The Tribunal also took account of the case of Remedy UK Ltd v GMC (2010) EWHC 1245 (Admin) which described misconduct of two principal kinds

a sufficiently serious misconduct in the exercise of professional practice such that it can be properly described as misconduct going to fitness to practise b conduct of a morally culpable or otherwise disgraceful kind which may and often will occur outwith the course of professional practice itself but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession

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MPT Dr MUKHERJEE 13

The Tribunalrsquos Determination on Impairment Misconduct 15 The Tribunal took account of paragraphs 1 and 75 in GMP as stated above 16 The Tribunal noted that Dr Mukherjee was convicted of two counts of mischief and one count of uttering threats The Tribunal considered the behaviour which led to Dr Mukherjeersquos conviction in that his offences occurred in the context of a dysfunctional relationship and included threats of violence against the complainant The Tribunal noted that in his email dated 15 March 2015 Dr Mukherjee accepted that the relationship with the complainant was toxic 17 The Tribunal is in agreement with the College of Physicians and Surgeons of Ontario (the CPSO) determination that Dr Mukherjee demonstrated disgraceful and outrageous behaviour 18 The Tribunal also noted the comments from Justice Robert G Selkirk who stated in his sentencing remarks

lsquo hellipit is fair to describe these events as acts of domestic violence which the Courts have always wanted to denounce and deterrsquo

19 The Tribunal considered that Dr Mukherjeersquos behaviour demonstrated sustained misconduct in the context of a domestic relationship over a period of months in 2013 The Tribunal has taken into account that Dr Mukherjeersquos offences were against a female and it was mindful that he works in obstetrics and gynaecology his primary patients being female 20 The Tribunal next considered Dr Mukherjeersquos failure to notify the GMC of his conviction without delay The Tribunal noted paragraph 75 as stated above and paragraph 3 of GMP Paragraph 3 states

lsquo3 Good medical practice describes what is expected of all doctors registered with the General Medical Council (GMC) It is your responsibility to be familiar with Good medical practice and the explanatory guidancedagger which supports it and to follow the guidance they containrsquo

21 The Tribunal is of the opinion that from 2013 onwards Dr Mukherjee had the opportunity to inform the GMC of the Canadian Police investigation and he must have realised at some time that he had a duty to do so especially following his conviction and sentence in 2015 The Tribunal determined that Dr Mukherjeersquos conduct demonstrated flagrant breaches of the principles in paragraphs 3 and 75 of GMP in that he failed to report his conviction to the GMC over an extended period when he should have known had a duty to do so

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MPT Dr MUKHERJEE 14

22 The Tribunal considered that Dr Mukherjeersquos conduct represented a significant departure from the expected standards of conduct and behaviour of a doctor as set out in paragraphs 1 3 and 75 of GMP 23 The Tribunal concluded that Dr Mukherjeersquos conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct Determination by a Regulatory Body 24 In considering whether Dr Mukherjeersquos fitness to practise is impaired by the determination by another regulatory body in this case the Tribunal has regard to section 35C(2) of the Medical Act which states

lsquoA personrsquos fitness to practise shall be regarded as ldquoimpairedrdquo for the purposes of this Act by reason only of ndash hellip

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired or a determination by a regulatory body elsewhere to the same effectrsquo

25 Section 35C(3) provides that an allegation may be based on a matter that is alleged to have occurred outside the United Kingdom 26 Section 35(C)(9) provides

lsquohelliprdquoregulatory bodyrdquo means a regulatory body which has the function of authorising persons to practise as a member of health or social care professionhelliprsquo

27 The Tribunal was satisfied that on 4 March 2019 the College of Physicians and Surgeons of Ontario (CPOS) in Canada made a determination against Dr Mukherjee and imposed a suspension for a period of six months Impairment 28 The Tribunal having found that the facts proved in relation to paragraphs 1 and 2 of the Allegation amounted to misconduct went on to consider whether as a result of that misconduct Dr Mukherjeersquos fitness to practise is currently impaired The Tribunal also considered whether the regulatory determination as found proved in paragraph 3 of the Allegation impaired his current fitness to practise

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MPT Dr MUKHERJEE 15

29 The Tribunal took account of Dr Mukherjeersquos personal remediation in relation to his convictions It noted that as part of his sentencing Dr Mukherjee completed a course on domestic violence Dr Mukherjee has also completed the courses lsquoPartner Assault Response Program aka Living Without Violencersquo and lsquoUnderstanding Boundariesrsquo XXX 30 Dr Mukherjee also worked with a workplace mentor at the Hospital on a monthly basis to discuss and review his conduct and interpersonal performance in the workplace 31 The Tribunal took account of Dr Mukherjeersquos statement in his email dated 4 August 2019 which states

lsquoI had submitted detailed statements to the IOT in April 2018 amp March 2019 pertaining to this single isolated incident related to personal domestic issue NOT involving any patients which started as a workplace affair starting in February 2012 terminating in Jan 2014 relationship was toxic and deteriorated as the time progressed leaving permanent ramifications affecting my career family self respect and my self confidence I am most remorseful repentant apologetic and ashamed of my behaviour and over these long period of six years I have worked in a constructive way with self analysis projected learning and reevaluation of various aspects of my life in a positive way Attending and successfully completing courses inclusive of the 1Boundaries Course at the Western University in London Ontario 2 Partner Assault Program which lasted for a period of 10 weeks 3[XXX] as were recommended by the Honble Court and by the CPSO I am also planning to attend Anger Management Course in Ottawa starting October 2019 this has been arranged by CMPA with consent and approval from CPSO In addition as recommended by the Hospital authorities XXX also confirmed that I was safe was allowed to continue with full clinical practice administrative responsibility as the Chief of Obstetrics amp Gynaecolgy and academic responsibility as Clinical Lecturer with the Ottawa Universityrsquo

32 The Tribunal noted that within a month of the CPSO determination on the 4 March 2019 (which included a six monthsrsquo suspension from practising in Canada) Dr Mukherjee started a job as a doctor in the UK on 10 April 2019 although it also noted that the GMC has not brought any allegation in relation to this 33 The Tribunal has not been made aware of any other disciplinary findings against Dr Mukherjee The Tribunal acknowledges that whilst Dr Mukherjee has made

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MPT Dr MUKHERJEE 16

expressions of remorse and sorrow which were directed towards the impact on himself his family and career he appears to lack sufficient insight into the impact on the complainant 34 The Tribunal considered that Dr Mukherjee has remediated his personal failings to a significant extent Nevertheless the Tribunal found that even though Dr Mukherjee has developed some insight and remediated his personal misconduct a finding of impairment is necessary in order to uphold proper standards and maintain public confidence in the profession consistent with the overarching objective The Tribunal was mindful that doctors occupy a position of privilege and trust and are expected to act in a manner which maintains public confidence in them and in the medical profession and to uphold proper standards of conduct 35 The Tribunal is in no doubt that public confidence in the medical profession and the need to uphold proper standards for that profession would be adversely affected if it were not to make a finding of impairment in this case The Tribunal has therefore determined that Dr Mukherjeersquos fitness to practise is currently impaired by reason of misconduct and the determination by an overseas regulator Determination on Sanction - 18032020 1 Having determined that Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by an overseas body the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction if any to impose Submissions 2 On behalf of the GMC Ms Jones reminded the Tribunal that the offences for which Dr Mukherjee received a conditional discharge were serious She acknowledged that the offences occurred some time ago in 2013 and there have been no further incidents She also acknowledged that Dr Mukherjee has remediated his misconduct and has expressed remorse at his behaviour 3 Ms Jones submitted that a sanction of suspension is appropriate in this case She referred the Tribunal to Sanctions Guidance (November 2019) (the SG) 4 Ms Jones acknowledged that Dr Mukherjee has developing insight and that there had been a passage of time since Dr Mukherjeersquos offences occurred In relation to remediation Ms Jones referred the Tribunal to paragraph 31 which states

rsquo31 Remediation is where a doctor addresses concerns about their knowledge skills conduct or behaviour Remediation can take a number of

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MPT Dr MUKHERJEE 17

forms including coaching mentoring training and rehabilitation (this list is not exhaustive) and where fully successful will make impairment unlikelyrsquo

5 In relation to insight Ms Jones referred the Tribunal to paragraphs 45 and 46 of the SG which state

rsquo45 Expressing insight involves demonstrating reflection and remediation 46 A doctor is likely to have insight if they

a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31ndash33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearingrsquo

6 Ms Jones referred the Tribunal to paragraph 56d of the SG which states rsquo56 Tribunals are also likely to take more serious action where certain conduct arises in a doctorrsquos personal life such as (this list is not exhaustive) hellip

d misconduct involving violence or offences of a sexual nature (see paragraphs 149ndash150) helliprsquo

7 Ms Jones reminded the Tribunal that Dr Mukherjeersquos behaviour amounted to domestic violence and the text messages he sent to the complainant were somewhat sinister She submitted that this case is too serious for the Tribunal to take no action or to impose conditions on Dr Mukherjeersquos registration Ms Jones further submitted that Dr Mukherjeersquos misconduct including his failure to inform the GMC of his conviction was so serious that it calls for a period of suspension She referred the Tribunal to paragraph 92 of the SG which states

lsquo92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)rsquo

8 Ms Jones submitted that the GMC consider that Dr Mukherjeersquos misconduct is very serious but falls short of incompatibility with continued registration She accepted that

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MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

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MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

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MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

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MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 2: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

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MPT Dr MUKHERJEE 2

Overarching Objective Throughout the decision making process the tribunal has borne in mind the statutory overarching objective as set out in s1 Medical Act 1983 (the 1983 Act) to protect promote and maintain the health safety and well-being 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 that profession Determination on Facts - 17032020 Background 1 Dr Mukherjee qualified as a doctor in India in 1987 He worked in the United Kingdom from 1994 to 1999 and in 2004 went to work in Ontario Canada Whilst in Canada Dr Mukherjee treated lsquothe complainantrsquo in May 2009 In 2010 the complainant started to work as a part-time nurse in the labour ward at the hospital where Dr Mukherjee was working In March 2012 Dr Mukherjee and the complainant began an intimate relationship which ended in January 2014 The relationship was dysfunctional and included acts of violence and intimidation In January 2015 Dr Mukherjee appeared before Justice Robert Selkirk at the Ontario Court of Justice on two counts of mischief (damaging the complainantrsquos property) and one count of uttering threats to the complainant to cause her death or bodily harm 2 The Allegation that has led to Dr Mukherjeersquos hearing can be summarised as on 23 February 2015 Dr Mukherjee was made the subject of an order for conditional discharge for a period of 12 months in respect of three offences two acts of mischief and one act of uttering threats under the Criminal Code of Canada 3 The first count was Dr Mukherjee being charged with unlawful entry and mischief The incident occurred on 13 August 2013 when the complainant took her daughter to Toronto without telling Dr Mukherjee Dr Mukherjee called and repeatedly texted the complainant but she refused to respond as she was disappointed with his response to her birthday Dr Mukherjee became angry at the complainantrsquos refusal to respond and attended her residence Dr Mukherjee broke open her garage door and entered her garage The complainantrsquos car was not in the garage nonetheless Dr Mukherjee entered the residence and called the complainantrsquos mobile phone from her landline phone The complainant answered the call and recorded part of the conversation The recording was provided to the court and from Dr Mukherjeersquos tone of voice it was obvious that he was enraged Amongst other things he told the complainant lsquoYou will pay for thisrsquo Dr Mukherjee left a birthday card and flowers at the complainantrsquos house On the card he wrote the complainants full name and lsquoYou could have and should have waitedhellip life is full of surprisesrsquo Dr Mukherjee testified that he deliberately and wilfully forced the door

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 3

open and thereby damaged it Dr Mukherjee subsequently paid for a replacement door 4 The second count of mischief occurred on 23 December 2013 which resulted in damage to the complainantrsquos car Dr Mukherjee and the complainant had been arguing at her home Dr Mukherjee left in his car The complainant realised that Dr Mukherjee had left a bag of laundry so she got in her car with the intention of delivering it to Dr Mukherjee Dr Mukherjee realised he had left his Ipad and was returning to the complainantrsquos house and the two cars met at an intersection The complainant got out of the car to deliver the laundry bag and reached into Dr Mukherjeersquos car and retrieved a designer handbag that had been a gift which she had returned to him earlier Dr Mukherjee then drove his car into the front left corner of her car He then backed up and proceeded to drive into the front left side of the complainantrsquos car causing damage to the bumper and lights Dr Mukherjee agreed that they had been arguing but claimed his car slipped in the snow and he hit her car accidentally 5 The count of uttering threats was established by text messages as follows lsquoU have got me mad Irsquom fucking killing yoursquo lsquoI will kill you somedayrsquo lsquo[full name of complainant] I will slit your throat Irsquom slick surgeon you should know thatrsquo The text messages were sent in late 2013 6 On 23 February 2015 Dr Mukherjee was sentenced to a conditional discharge and 12 monthsrsquo probation The terms of that order included requirements that Dr Mukherjee undertake counselling assessment or treatment as directed that he have no contact with the complainant that he should comply with a hospital safety plan and that he should make a $1000 charitable donation 7 It is alleged that Dr Mukherjee failed to notify the General Medical Council (the GMC) of being found guilty of the offences and of the conditional discharge without delay 8 It is also alleged that on 4 March 2019 the College of Physicians and Surgeons of Ontario (the CPSO) determined that Dr Mukherjee had committed an act of professional misconduct and directed Dr Mukherjee to attend before a panel to be reprimanded The outcome was that Dr Mukherjeersquos registration was suspended for 6 months and he was ordered to complete intensive instruction in anger management The Outcome of Applications Made during the Facts Stage 9 The Tribunal granted the GMCrsquos application made pursuant to Rules 20 and 40 of the General Medical Council (Fitness to Practise Rules) 2004 as amended (lsquothe Rulesrsquo) that service had been effected The Tribunalrsquos full decision on the application is included at Annex A

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 4

10 The Tribunal granted the GMCrsquos application made pursuant to Rule 31 of the Rules to proceed in Dr Mukherjeersquos absence The Tribunalrsquos full decision on the application is included at Annex B 11 The Tribunal determined of its own volition made pursuant to 17(6) of the Rules to amend the stem of paragraph 1 The amendment was made as paragraph 1 contained an incorrect date Paragraph 1 is amended as follows

lsquo1 On 23 May February 2015 at Ontario Court of Justice you were made the subject of an order for conditional discharge for a period of 12 months in respect of offences under the Criminal Code of Canada consisting ofrsquo

The Allegation and the Doctorrsquos Response 12 In light of Dr Mukherjeersquos response to the Allegation made against him the Tribunal is required to determine all of the facts as follows

1 On 23 May February 2015 at Ontario Court of Justice you were made the subject of an order for conditional discharge for a period of 12 months in respect of offences under the Criminal Code of Canada consisting ofrsquo

a mischief (two counts) pursuant to section 430(4) To be determined b uttering threats to cause death or bodily harm pursuant to section 2641 (1)(a) To be determined

2 You failed to notify the GMC without delay that you had been a found guilty of the criminal offences detailed in paragraph 1 To be determined b conditionally discharged of the criminal offences detailed in paragraph 1 To be determined

3 On 4 March 2019 The College of Physicians and Surgeons of Ontario a determined you had committed an act of professional misconduct in that you had been found guilty of an offence that is relevant to your suitability to practise and you had engaged in an act or omission relevant to the practice of medicine that having regard to

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 5

all the circumstances would reasonably be regarded by members as disgraceful dishonourable or unprofessional To be determined

b directed you attend before the panel to be reprimanded To be determined

c suspended your certificate of registration for a period of six months commencing immediately To be determined

d ordered you to at your own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than 12 months from the date of the Order To be determined

The Evidence 13 The Tribunal received evidence on behalf of the GMC in the form of a witness statement from the following witness who was not called to give oral evidence

bull Mr A Investigation Officer GMC Documentary Evidence 14 The Tribunal had regard to the documentary evidence provided by the parties The Canadian spelling has been retained where appropriate This evidence included but was not limited to

bull Reasons for Judgement from Ontario Court of Justice dated 12 January 2015 bull Transcript from sentencing hearing from Ontario Court of Justice dated 23

February 2015 bull Referral from College of Physicians and Surgeons of Ontario (the CPSO dated

7 September 2017 bull Extract from the CPSO website confirming Practise restrictions dated 4 March

2019 bull Determination from the CPSO dated 4 March 2019

bull Statements provided by Dr Mukherjee dated 16 April 2018 25 March 2019 4 August 2019 10 January 2020 and 26 February 2020

bull XXX bull XXX bull Certificate of attendance on Understanding Boundaries and Managing the

Risks course dated 5 June 2015 bull Emails from Dr Mukherjee to GMC dated 30 October 2017 and 7 August 2018

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 6

bull DBS certificate dated 12 September 2019 bull XXX bull Canadian Criminal Record Check undated

bull Email from CPSO to Dr Mukherjee dated 12 December 2019 bull Extract from CPSO website confirming no restrictions dated 26 December

2019 bull Patient reviews from ratemdscom and ontariodoctordirectyca dated from

2012 to 2019 The Tribunalrsquos Approach 15 In reaching its decision on facts the Tribunal has borne in mind that the burden of proof rests on the GMC and it is for the GMC to prove the Allegation Dr Mukherjee does not need to prove anything The standard of proof is that applicable to civil proceedings namely the balance of probabilities ie whether it is more likely than not that the events occurred The Tribunalrsquos Analysis of the Evidence and Findings 16 The Tribunal has considered each paragraph of the Allegation separately and has evaluated the evidence in order to make its findings on the facts Paragraph 1 17 The Tribunal has noted the reasons for the judgement against Dr Mukherjee from Justice Robert Selkirk of the Ontario Court of Justice dated 12 January 2015 It has also taken account of the transcript from sentencing hearing dated 23 February 2015 18 The Tribunal noted Dr Mukherjeersquos email to the GMC dated 10 January 2020 in which he confirmed the allegations of two counts of mischief pursuant to section 430(4) and one count of uttering threats pursuant to section 2641(1)(a) In this email Dr Mukherjee stated that he was not lsquoconvictedrsquo of any criminal offence but was given a lsquoconditional dischargersquo He accepted however that he was found guilty of the offences in his email to the GMC dated 15 March 2019 19 Given the documentary evidence and Dr Mukherjeersquos own confirmation in his email the Tribunal was satisfied that on 23 February 2015 at Ontario Court of Justice he was made the subject of an order for a conditional discharge in relation to two counts of mischief and one count of uttering threats to cause death or bodily harm having been found guilty of those offences 20 Accordingly the Tribunal found paragraph 1 proved

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 7

Paragraph 2 21 The Tribunal first considered whether or not Dr Mukherjee was under a duty to inform the GMC firstly that he had been found guilty of the criminal offences detailed in paragraph 1 and secondly that he had been conditionally discharged in relation to the criminal offences 22 The Tribunal took account of paragraph 75 in the GMCrsquos guidance Good Medical Practice (The GMP) which states

lsquo75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence

c another professional body has made a finding against your registration as a result of fitness to practise procedures

23 The Tribunal noted that Dr Mukherjee has been registered with the GMC since 25 June 1999 and continued to be registered whilst he was working in Canada 24 The Tribunal was satisfied that as Dr Mukherjee was registered with the GMC he had a duty under GMP to inform the GMC that he had been found guilty of criminal offences and received a conditional discharge for those offences 25 The Tribunal took account of Mr Arsquos witness statement in which he confirmed that all communication including all documents telephone notes emails and letters between the GMC and the doctor are recorded in electronic form on a database called Siebel Mr A confirmed from reviewing Dr Mukherjeersquos history on Siebel that there is no record of the GMC receiving notification from Dr Mukherjee or a third party that he had been found guilty of the criminal offences and received a conditional discharge for those offences 26 The Tribunal noted Dr Mukherjeersquos statement in his email to the GMC dated 10 January 2020

lsquoI take FULL RESPONSIBILITY for FAILING to notify GMC with regards to events and criminal charges which occurred in January 2014 this omission was unintentional I was not aware about this stipulation in paragraph 75 of GMP I have been Registered without License to practice since 2007 with yearly renewal of Registration during the process of renewal no questions are asked about any charges or change of circumstances If I knew about this stipulation I would most certainly informed GMC without delayrsquo

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 8

27 The Tribunal was satisfied that Dr Mukherjee failed to notify the GMC of the criminal offences and the conditional discharge 28 Accordingly the Tribunal found paragraph 2 proved Paragraph 3 29 The Tribunal has taken account of the CPSO Record of Practise restrictions It has also taken account of the email to the GMC dated 7 March 2019 containing the lsquoNotice of Suspension and Terms Conditions and Limitations on the Certificate of Registrationrsquo from the College of Physicians and Surgeons of Ontario which states

lsquoOn March 4 2019 the Discipline Committee ordered and directed that 1 Dr Mukherjee attend before the panel to be reprimanded 2 The Registrar suspend Dr Mukherjees certificate of registration for a period of six (6) months commencing immediately Dr Mukherjee shall comply with the College Policy 2-07 Practice Management Considerations for Physicians Who Cease to Practise Take an Extended Leave of Absence or Close Their Practice Due to Relocation a copy of which forms Schedule A to this Order 3 The Registrar place the following terms conditions and limitations on Dr Mukherjees certificate of registration

a Dr Mukherjee will at his own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than twelve (12) months from the date of this Order

4 Dr Mukherjee pay costs to the College in the amount of $600000 within 30 days of the date of this Orderrsquo

30 The Tribunal noted that Dr Mukherjee accepted in his emails dated 15 March 2019 and 4 August 2019 that he was subject to the regulatory determination and sanction 31 The Tribunal was satisfied having seen the determination from the CPSO dated 4 March 2019 that it was issued to Dr Mukherjee 32 Accordingly the Tribunal found paragraph 3 proved

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 9

The Tribunalrsquos Overall Determination on the Facts 33 The Tribunal has determined the facts as follows

lsquo1 On 23 May February 2015 at Ontario Court of Justice you were made the subject of an order for conditional discharge for a period of 12 months in respect of offences under the Criminal Code of Canada consisting ofrsquo

a mischief (two counts) pursuant to section 430(4) Determined and found proved b uttering threats to cause death or bodily harm pursuant to section 2641 (1)(a) Determined and found proved

2 You failed to notify the GMC without delay that you had been a found guilty of the criminal offences detailed in paragraph 1 Determined and found proved b conditionally discharged of the criminal offences detailed in paragraph 1 Determined and found proved

3 On 4 March 2019 The College of Physicians and Surgeons of Ontario a determined you had committed an act of professional misconduct in that you had been found guilty of an offence that is relevant to your suitability to practise and you had engaged in an act or omission relevant to the practice of medicine that having regard to all the circumstances would reasonably be regarded by members as disgraceful dishonourable or unprofessional Determined and found proved

b directed you attend before the panel to be reprimanded Determined and found proved

c suspended your certificate of registration for a period of six months commencing immediately Determined and found proved

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 10

d ordered you to at your own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than 12 months from the date of the Order Determined and found proved

Determination on Impairment - 17032020 1 The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether on the basis of the facts which it has found proved as set out before Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by another regulator The Evidence 2 The Tribunal has taken into account all the evidence received during the facts stage of the hearing both oral and documentary In addition the Tribunal also received a report from Dr E Dr Mukherjeersquos Responsible Officer dated 6 January 2020 Submissions 3 On behalf of the GMC Ms Jones reminded the Tribunal of the two stage test it must apply in relation to misconduct Ms Jones referred the Tribunal to the case of Cheatle v GMC (2009) EWHC 645 (Admin) in relation to the approach to be taken to findings of misconduct and impairment She submitted the misconduct amounts to serious misconduct Dr Mukherjee was convicted by an overseas court of two offences of mischief which would have been charged in this country as criminal damage and also a charge of threats to cause death or bodily harm sent to the complainant She stated that this was a series of offences that occurred over a few months in the context of a dysfunctional relationship which involved intimidation She stated it was an abusive relationship albeit that it was not all one way She submitted that Dr Mukherjeersquos behaviour amounted to serious professional misconduct She submitted that Dr Mukherjee failed to notify the GMC of the criminal offences for two years Ms Jones reminded the Tribunal that it is the registrantrsquos obligation to inform the regulator of any criminal proceedings She submitted that Dr Mukherjeersquos explanation that he did not appreciate it was his duty was unsatisfactory 4 Ms Jones referred the Tribunal to paragraphs 1 and 75 of the GMCrsquos guidance Good Medical Practice (GMP) which state

lsquo1 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

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 11

75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence c another professional body has made a finding against your registration as a result of fitness to practise proceduresrsquo

5 Ms Jones submitted that the offences could be categorised as domestic abuse and any involvement by a doctor is very serious indeed She submitted that should the tribunal find misconduct proved it should consider whether Dr Mukherjeersquos fitness to practise is impaired

6 Ms Jones referred the Tribunal to the comprehensive approach in determining impairment formulated by Dame Janet Smith in her Fifth Report on the Shipman Inquiry which states

lsquoDo our findings of fact in respect of the doctors misconduct deficient professional performance adverse health conviction caution or determination show that hisher fitness to practise is impaired in the sense that she

a has in the past acted andor is liable in the future to act so as to put a patient or patients at unwarranted risk of harm andor

b has in the past brought andor is liable in the future to bring the medical profession into disrepute andor

c has in the past breached andor is liable in the future to breach one of the fundamental tenets of the medical profession andor

d has in the past acted dishonestly andor is liable to act dishonestly in the futurersquo

7 Ms Jones conceded that Dr Mukherjeersquos actions have not put patients at risk She submitted that Dr Mukherjeersquos actions have brought the profession into disrepute and that limb b is clearly made out She submitted that it is for the Tribunal to determine whether Dr Mukherjee has breached one of the fundamental tenets of the profession She submitted that Dr Mukherjeersquos behaviour which included his failure to inform the GMC and the finding of the overseas regulator amounted to such a breach 8 She accepted that Dr Mukherjee has demonstrated remediation and remorse but invited the Tribunal to have regard to the nature of the misconduct and breaches of GMP and the seriousness of the misconduct She referred the Tribunal to the principle in

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 12

the case of Chaudhary v GMC 2017 EWHC 2561 (Admin) in relation to the need to give sufficient weight to the overarching objective which includes the wider public interest 9 Ms Jones referred the Tribunal to the case of Grant v NMC 2011 EWCH92 (Admin) and the need to uphold proper standards and confidence in the profession She accepted that the case law requires the Tribunal to look at impairment today but it is also required to have regard to the seriousness of the misconduct given the facts found proved She submitted that this is the type of case where notwithstanding Dr Mukherjeersquos personal remediation a finding of impairment is appropriate on public interest grounds 10 Ms Jones submitted that the Tribunal must consider the public interest regarding Dr Mukherjeersquos serious misconduct his failure to report his conviction and the determination by the overseas regulator and therefore a finding of impairment is imperative The Relevant Legal Principles 11 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 Tribunalrsquos judgement alone 12 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 and then whether the finding of that misconduct which was serious could lead to a finding of impairment 13 The Tribunal must determine whether Dr Mukherjeersquos fitness to practise is impaired today taking into account his 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 It was also mindful of the overarching objective as set out in Section 1(A) of the Medical Act and the importance of promoting and maintaining public confidence in the profession and proper standards of conduct 14 The Tribunal also took account of the case of Remedy UK Ltd v GMC (2010) EWHC 1245 (Admin) which described misconduct of two principal kinds

a sufficiently serious misconduct in the exercise of professional practice such that it can be properly described as misconduct going to fitness to practise b conduct of a morally culpable or otherwise disgraceful kind which may and often will occur outwith the course of professional practice itself but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 13

The Tribunalrsquos Determination on Impairment Misconduct 15 The Tribunal took account of paragraphs 1 and 75 in GMP as stated above 16 The Tribunal noted that Dr Mukherjee was convicted of two counts of mischief and one count of uttering threats The Tribunal considered the behaviour which led to Dr Mukherjeersquos conviction in that his offences occurred in the context of a dysfunctional relationship and included threats of violence against the complainant The Tribunal noted that in his email dated 15 March 2015 Dr Mukherjee accepted that the relationship with the complainant was toxic 17 The Tribunal is in agreement with the College of Physicians and Surgeons of Ontario (the CPSO) determination that Dr Mukherjee demonstrated disgraceful and outrageous behaviour 18 The Tribunal also noted the comments from Justice Robert G Selkirk who stated in his sentencing remarks

lsquo hellipit is fair to describe these events as acts of domestic violence which the Courts have always wanted to denounce and deterrsquo

19 The Tribunal considered that Dr Mukherjeersquos behaviour demonstrated sustained misconduct in the context of a domestic relationship over a period of months in 2013 The Tribunal has taken into account that Dr Mukherjeersquos offences were against a female and it was mindful that he works in obstetrics and gynaecology his primary patients being female 20 The Tribunal next considered Dr Mukherjeersquos failure to notify the GMC of his conviction without delay The Tribunal noted paragraph 75 as stated above and paragraph 3 of GMP Paragraph 3 states

lsquo3 Good medical practice describes what is expected of all doctors registered with the General Medical Council (GMC) It is your responsibility to be familiar with Good medical practice and the explanatory guidancedagger which supports it and to follow the guidance they containrsquo

21 The Tribunal is of the opinion that from 2013 onwards Dr Mukherjee had the opportunity to inform the GMC of the Canadian Police investigation and he must have realised at some time that he had a duty to do so especially following his conviction and sentence in 2015 The Tribunal determined that Dr Mukherjeersquos conduct demonstrated flagrant breaches of the principles in paragraphs 3 and 75 of GMP in that he failed to report his conviction to the GMC over an extended period when he should have known had a duty to do so

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 14

22 The Tribunal considered that Dr Mukherjeersquos conduct represented a significant departure from the expected standards of conduct and behaviour of a doctor as set out in paragraphs 1 3 and 75 of GMP 23 The Tribunal concluded that Dr Mukherjeersquos conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct Determination by a Regulatory Body 24 In considering whether Dr Mukherjeersquos fitness to practise is impaired by the determination by another regulatory body in this case the Tribunal has regard to section 35C(2) of the Medical Act which states

lsquoA personrsquos fitness to practise shall be regarded as ldquoimpairedrdquo for the purposes of this Act by reason only of ndash hellip

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired or a determination by a regulatory body elsewhere to the same effectrsquo

25 Section 35C(3) provides that an allegation may be based on a matter that is alleged to have occurred outside the United Kingdom 26 Section 35(C)(9) provides

lsquohelliprdquoregulatory bodyrdquo means a regulatory body which has the function of authorising persons to practise as a member of health or social care professionhelliprsquo

27 The Tribunal was satisfied that on 4 March 2019 the College of Physicians and Surgeons of Ontario (CPOS) in Canada made a determination against Dr Mukherjee and imposed a suspension for a period of six months Impairment 28 The Tribunal having found that the facts proved in relation to paragraphs 1 and 2 of the Allegation amounted to misconduct went on to consider whether as a result of that misconduct Dr Mukherjeersquos fitness to practise is currently impaired The Tribunal also considered whether the regulatory determination as found proved in paragraph 3 of the Allegation impaired his current fitness to practise

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 15

29 The Tribunal took account of Dr Mukherjeersquos personal remediation in relation to his convictions It noted that as part of his sentencing Dr Mukherjee completed a course on domestic violence Dr Mukherjee has also completed the courses lsquoPartner Assault Response Program aka Living Without Violencersquo and lsquoUnderstanding Boundariesrsquo XXX 30 Dr Mukherjee also worked with a workplace mentor at the Hospital on a monthly basis to discuss and review his conduct and interpersonal performance in the workplace 31 The Tribunal took account of Dr Mukherjeersquos statement in his email dated 4 August 2019 which states

lsquoI had submitted detailed statements to the IOT in April 2018 amp March 2019 pertaining to this single isolated incident related to personal domestic issue NOT involving any patients which started as a workplace affair starting in February 2012 terminating in Jan 2014 relationship was toxic and deteriorated as the time progressed leaving permanent ramifications affecting my career family self respect and my self confidence I am most remorseful repentant apologetic and ashamed of my behaviour and over these long period of six years I have worked in a constructive way with self analysis projected learning and reevaluation of various aspects of my life in a positive way Attending and successfully completing courses inclusive of the 1Boundaries Course at the Western University in London Ontario 2 Partner Assault Program which lasted for a period of 10 weeks 3[XXX] as were recommended by the Honble Court and by the CPSO I am also planning to attend Anger Management Course in Ottawa starting October 2019 this has been arranged by CMPA with consent and approval from CPSO In addition as recommended by the Hospital authorities XXX also confirmed that I was safe was allowed to continue with full clinical practice administrative responsibility as the Chief of Obstetrics amp Gynaecolgy and academic responsibility as Clinical Lecturer with the Ottawa Universityrsquo

32 The Tribunal noted that within a month of the CPSO determination on the 4 March 2019 (which included a six monthsrsquo suspension from practising in Canada) Dr Mukherjee started a job as a doctor in the UK on 10 April 2019 although it also noted that the GMC has not brought any allegation in relation to this 33 The Tribunal has not been made aware of any other disciplinary findings against Dr Mukherjee The Tribunal acknowledges that whilst Dr Mukherjee has made

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 16

expressions of remorse and sorrow which were directed towards the impact on himself his family and career he appears to lack sufficient insight into the impact on the complainant 34 The Tribunal considered that Dr Mukherjee has remediated his personal failings to a significant extent Nevertheless the Tribunal found that even though Dr Mukherjee has developed some insight and remediated his personal misconduct a finding of impairment is necessary in order to uphold proper standards and maintain public confidence in the profession consistent with the overarching objective The Tribunal was mindful that doctors occupy a position of privilege and trust and are expected to act in a manner which maintains public confidence in them and in the medical profession and to uphold proper standards of conduct 35 The Tribunal is in no doubt that public confidence in the medical profession and the need to uphold proper standards for that profession would be adversely affected if it were not to make a finding of impairment in this case The Tribunal has therefore determined that Dr Mukherjeersquos fitness to practise is currently impaired by reason of misconduct and the determination by an overseas regulator Determination on Sanction - 18032020 1 Having determined that Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by an overseas body the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction if any to impose Submissions 2 On behalf of the GMC Ms Jones reminded the Tribunal that the offences for which Dr Mukherjee received a conditional discharge were serious She acknowledged that the offences occurred some time ago in 2013 and there have been no further incidents She also acknowledged that Dr Mukherjee has remediated his misconduct and has expressed remorse at his behaviour 3 Ms Jones submitted that a sanction of suspension is appropriate in this case She referred the Tribunal to Sanctions Guidance (November 2019) (the SG) 4 Ms Jones acknowledged that Dr Mukherjee has developing insight and that there had been a passage of time since Dr Mukherjeersquos offences occurred In relation to remediation Ms Jones referred the Tribunal to paragraph 31 which states

rsquo31 Remediation is where a doctor addresses concerns about their knowledge skills conduct or behaviour Remediation can take a number of

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 17

forms including coaching mentoring training and rehabilitation (this list is not exhaustive) and where fully successful will make impairment unlikelyrsquo

5 In relation to insight Ms Jones referred the Tribunal to paragraphs 45 and 46 of the SG which state

rsquo45 Expressing insight involves demonstrating reflection and remediation 46 A doctor is likely to have insight if they

a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31ndash33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearingrsquo

6 Ms Jones referred the Tribunal to paragraph 56d of the SG which states rsquo56 Tribunals are also likely to take more serious action where certain conduct arises in a doctorrsquos personal life such as (this list is not exhaustive) hellip

d misconduct involving violence or offences of a sexual nature (see paragraphs 149ndash150) helliprsquo

7 Ms Jones reminded the Tribunal that Dr Mukherjeersquos behaviour amounted to domestic violence and the text messages he sent to the complainant were somewhat sinister She submitted that this case is too serious for the Tribunal to take no action or to impose conditions on Dr Mukherjeersquos registration Ms Jones further submitted that Dr Mukherjeersquos misconduct including his failure to inform the GMC of his conviction was so serious that it calls for a period of suspension She referred the Tribunal to paragraph 92 of the SG which states

lsquo92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)rsquo

8 Ms Jones submitted that the GMC consider that Dr Mukherjeersquos misconduct is very serious but falls short of incompatibility with continued registration She accepted that

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

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MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 3: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

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MPT Dr MUKHERJEE 3

open and thereby damaged it Dr Mukherjee subsequently paid for a replacement door 4 The second count of mischief occurred on 23 December 2013 which resulted in damage to the complainantrsquos car Dr Mukherjee and the complainant had been arguing at her home Dr Mukherjee left in his car The complainant realised that Dr Mukherjee had left a bag of laundry so she got in her car with the intention of delivering it to Dr Mukherjee Dr Mukherjee realised he had left his Ipad and was returning to the complainantrsquos house and the two cars met at an intersection The complainant got out of the car to deliver the laundry bag and reached into Dr Mukherjeersquos car and retrieved a designer handbag that had been a gift which she had returned to him earlier Dr Mukherjee then drove his car into the front left corner of her car He then backed up and proceeded to drive into the front left side of the complainantrsquos car causing damage to the bumper and lights Dr Mukherjee agreed that they had been arguing but claimed his car slipped in the snow and he hit her car accidentally 5 The count of uttering threats was established by text messages as follows lsquoU have got me mad Irsquom fucking killing yoursquo lsquoI will kill you somedayrsquo lsquo[full name of complainant] I will slit your throat Irsquom slick surgeon you should know thatrsquo The text messages were sent in late 2013 6 On 23 February 2015 Dr Mukherjee was sentenced to a conditional discharge and 12 monthsrsquo probation The terms of that order included requirements that Dr Mukherjee undertake counselling assessment or treatment as directed that he have no contact with the complainant that he should comply with a hospital safety plan and that he should make a $1000 charitable donation 7 It is alleged that Dr Mukherjee failed to notify the General Medical Council (the GMC) of being found guilty of the offences and of the conditional discharge without delay 8 It is also alleged that on 4 March 2019 the College of Physicians and Surgeons of Ontario (the CPSO) determined that Dr Mukherjee had committed an act of professional misconduct and directed Dr Mukherjee to attend before a panel to be reprimanded The outcome was that Dr Mukherjeersquos registration was suspended for 6 months and he was ordered to complete intensive instruction in anger management The Outcome of Applications Made during the Facts Stage 9 The Tribunal granted the GMCrsquos application made pursuant to Rules 20 and 40 of the General Medical Council (Fitness to Practise Rules) 2004 as amended (lsquothe Rulesrsquo) that service had been effected The Tribunalrsquos full decision on the application is included at Annex A

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MPT Dr MUKHERJEE 4

10 The Tribunal granted the GMCrsquos application made pursuant to Rule 31 of the Rules to proceed in Dr Mukherjeersquos absence The Tribunalrsquos full decision on the application is included at Annex B 11 The Tribunal determined of its own volition made pursuant to 17(6) of the Rules to amend the stem of paragraph 1 The amendment was made as paragraph 1 contained an incorrect date Paragraph 1 is amended as follows

lsquo1 On 23 May February 2015 at Ontario Court of Justice you were made the subject of an order for conditional discharge for a period of 12 months in respect of offences under the Criminal Code of Canada consisting ofrsquo

The Allegation and the Doctorrsquos Response 12 In light of Dr Mukherjeersquos response to the Allegation made against him the Tribunal is required to determine all of the facts as follows

1 On 23 May February 2015 at Ontario Court of Justice you were made the subject of an order for conditional discharge for a period of 12 months in respect of offences under the Criminal Code of Canada consisting ofrsquo

a mischief (two counts) pursuant to section 430(4) To be determined b uttering threats to cause death or bodily harm pursuant to section 2641 (1)(a) To be determined

2 You failed to notify the GMC without delay that you had been a found guilty of the criminal offences detailed in paragraph 1 To be determined b conditionally discharged of the criminal offences detailed in paragraph 1 To be determined

3 On 4 March 2019 The College of Physicians and Surgeons of Ontario a determined you had committed an act of professional misconduct in that you had been found guilty of an offence that is relevant to your suitability to practise and you had engaged in an act or omission relevant to the practice of medicine that having regard to

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 5

all the circumstances would reasonably be regarded by members as disgraceful dishonourable or unprofessional To be determined

b directed you attend before the panel to be reprimanded To be determined

c suspended your certificate of registration for a period of six months commencing immediately To be determined

d ordered you to at your own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than 12 months from the date of the Order To be determined

The Evidence 13 The Tribunal received evidence on behalf of the GMC in the form of a witness statement from the following witness who was not called to give oral evidence

bull Mr A Investigation Officer GMC Documentary Evidence 14 The Tribunal had regard to the documentary evidence provided by the parties The Canadian spelling has been retained where appropriate This evidence included but was not limited to

bull Reasons for Judgement from Ontario Court of Justice dated 12 January 2015 bull Transcript from sentencing hearing from Ontario Court of Justice dated 23

February 2015 bull Referral from College of Physicians and Surgeons of Ontario (the CPSO dated

7 September 2017 bull Extract from the CPSO website confirming Practise restrictions dated 4 March

2019 bull Determination from the CPSO dated 4 March 2019

bull Statements provided by Dr Mukherjee dated 16 April 2018 25 March 2019 4 August 2019 10 January 2020 and 26 February 2020

bull XXX bull XXX bull Certificate of attendance on Understanding Boundaries and Managing the

Risks course dated 5 June 2015 bull Emails from Dr Mukherjee to GMC dated 30 October 2017 and 7 August 2018

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 6

bull DBS certificate dated 12 September 2019 bull XXX bull Canadian Criminal Record Check undated

bull Email from CPSO to Dr Mukherjee dated 12 December 2019 bull Extract from CPSO website confirming no restrictions dated 26 December

2019 bull Patient reviews from ratemdscom and ontariodoctordirectyca dated from

2012 to 2019 The Tribunalrsquos Approach 15 In reaching its decision on facts the Tribunal has borne in mind that the burden of proof rests on the GMC and it is for the GMC to prove the Allegation Dr Mukherjee does not need to prove anything The standard of proof is that applicable to civil proceedings namely the balance of probabilities ie whether it is more likely than not that the events occurred The Tribunalrsquos Analysis of the Evidence and Findings 16 The Tribunal has considered each paragraph of the Allegation separately and has evaluated the evidence in order to make its findings on the facts Paragraph 1 17 The Tribunal has noted the reasons for the judgement against Dr Mukherjee from Justice Robert Selkirk of the Ontario Court of Justice dated 12 January 2015 It has also taken account of the transcript from sentencing hearing dated 23 February 2015 18 The Tribunal noted Dr Mukherjeersquos email to the GMC dated 10 January 2020 in which he confirmed the allegations of two counts of mischief pursuant to section 430(4) and one count of uttering threats pursuant to section 2641(1)(a) In this email Dr Mukherjee stated that he was not lsquoconvictedrsquo of any criminal offence but was given a lsquoconditional dischargersquo He accepted however that he was found guilty of the offences in his email to the GMC dated 15 March 2019 19 Given the documentary evidence and Dr Mukherjeersquos own confirmation in his email the Tribunal was satisfied that on 23 February 2015 at Ontario Court of Justice he was made the subject of an order for a conditional discharge in relation to two counts of mischief and one count of uttering threats to cause death or bodily harm having been found guilty of those offences 20 Accordingly the Tribunal found paragraph 1 proved

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 7

Paragraph 2 21 The Tribunal first considered whether or not Dr Mukherjee was under a duty to inform the GMC firstly that he had been found guilty of the criminal offences detailed in paragraph 1 and secondly that he had been conditionally discharged in relation to the criminal offences 22 The Tribunal took account of paragraph 75 in the GMCrsquos guidance Good Medical Practice (The GMP) which states

lsquo75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence

c another professional body has made a finding against your registration as a result of fitness to practise procedures

23 The Tribunal noted that Dr Mukherjee has been registered with the GMC since 25 June 1999 and continued to be registered whilst he was working in Canada 24 The Tribunal was satisfied that as Dr Mukherjee was registered with the GMC he had a duty under GMP to inform the GMC that he had been found guilty of criminal offences and received a conditional discharge for those offences 25 The Tribunal took account of Mr Arsquos witness statement in which he confirmed that all communication including all documents telephone notes emails and letters between the GMC and the doctor are recorded in electronic form on a database called Siebel Mr A confirmed from reviewing Dr Mukherjeersquos history on Siebel that there is no record of the GMC receiving notification from Dr Mukherjee or a third party that he had been found guilty of the criminal offences and received a conditional discharge for those offences 26 The Tribunal noted Dr Mukherjeersquos statement in his email to the GMC dated 10 January 2020

lsquoI take FULL RESPONSIBILITY for FAILING to notify GMC with regards to events and criminal charges which occurred in January 2014 this omission was unintentional I was not aware about this stipulation in paragraph 75 of GMP I have been Registered without License to practice since 2007 with yearly renewal of Registration during the process of renewal no questions are asked about any charges or change of circumstances If I knew about this stipulation I would most certainly informed GMC without delayrsquo

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 8

27 The Tribunal was satisfied that Dr Mukherjee failed to notify the GMC of the criminal offences and the conditional discharge 28 Accordingly the Tribunal found paragraph 2 proved Paragraph 3 29 The Tribunal has taken account of the CPSO Record of Practise restrictions It has also taken account of the email to the GMC dated 7 March 2019 containing the lsquoNotice of Suspension and Terms Conditions and Limitations on the Certificate of Registrationrsquo from the College of Physicians and Surgeons of Ontario which states

lsquoOn March 4 2019 the Discipline Committee ordered and directed that 1 Dr Mukherjee attend before the panel to be reprimanded 2 The Registrar suspend Dr Mukherjees certificate of registration for a period of six (6) months commencing immediately Dr Mukherjee shall comply with the College Policy 2-07 Practice Management Considerations for Physicians Who Cease to Practise Take an Extended Leave of Absence or Close Their Practice Due to Relocation a copy of which forms Schedule A to this Order 3 The Registrar place the following terms conditions and limitations on Dr Mukherjees certificate of registration

a Dr Mukherjee will at his own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than twelve (12) months from the date of this Order

4 Dr Mukherjee pay costs to the College in the amount of $600000 within 30 days of the date of this Orderrsquo

30 The Tribunal noted that Dr Mukherjee accepted in his emails dated 15 March 2019 and 4 August 2019 that he was subject to the regulatory determination and sanction 31 The Tribunal was satisfied having seen the determination from the CPSO dated 4 March 2019 that it was issued to Dr Mukherjee 32 Accordingly the Tribunal found paragraph 3 proved

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 9

The Tribunalrsquos Overall Determination on the Facts 33 The Tribunal has determined the facts as follows

lsquo1 On 23 May February 2015 at Ontario Court of Justice you were made the subject of an order for conditional discharge for a period of 12 months in respect of offences under the Criminal Code of Canada consisting ofrsquo

a mischief (two counts) pursuant to section 430(4) Determined and found proved b uttering threats to cause death or bodily harm pursuant to section 2641 (1)(a) Determined and found proved

2 You failed to notify the GMC without delay that you had been a found guilty of the criminal offences detailed in paragraph 1 Determined and found proved b conditionally discharged of the criminal offences detailed in paragraph 1 Determined and found proved

3 On 4 March 2019 The College of Physicians and Surgeons of Ontario a determined you had committed an act of professional misconduct in that you had been found guilty of an offence that is relevant to your suitability to practise and you had engaged in an act or omission relevant to the practice of medicine that having regard to all the circumstances would reasonably be regarded by members as disgraceful dishonourable or unprofessional Determined and found proved

b directed you attend before the panel to be reprimanded Determined and found proved

c suspended your certificate of registration for a period of six months commencing immediately Determined and found proved

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 10

d ordered you to at your own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than 12 months from the date of the Order Determined and found proved

Determination on Impairment - 17032020 1 The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether on the basis of the facts which it has found proved as set out before Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by another regulator The Evidence 2 The Tribunal has taken into account all the evidence received during the facts stage of the hearing both oral and documentary In addition the Tribunal also received a report from Dr E Dr Mukherjeersquos Responsible Officer dated 6 January 2020 Submissions 3 On behalf of the GMC Ms Jones reminded the Tribunal of the two stage test it must apply in relation to misconduct Ms Jones referred the Tribunal to the case of Cheatle v GMC (2009) EWHC 645 (Admin) in relation to the approach to be taken to findings of misconduct and impairment She submitted the misconduct amounts to serious misconduct Dr Mukherjee was convicted by an overseas court of two offences of mischief which would have been charged in this country as criminal damage and also a charge of threats to cause death or bodily harm sent to the complainant She stated that this was a series of offences that occurred over a few months in the context of a dysfunctional relationship which involved intimidation She stated it was an abusive relationship albeit that it was not all one way She submitted that Dr Mukherjeersquos behaviour amounted to serious professional misconduct She submitted that Dr Mukherjee failed to notify the GMC of the criminal offences for two years Ms Jones reminded the Tribunal that it is the registrantrsquos obligation to inform the regulator of any criminal proceedings She submitted that Dr Mukherjeersquos explanation that he did not appreciate it was his duty was unsatisfactory 4 Ms Jones referred the Tribunal to paragraphs 1 and 75 of the GMCrsquos guidance Good Medical Practice (GMP) which state

lsquo1 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

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 11

75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence c another professional body has made a finding against your registration as a result of fitness to practise proceduresrsquo

5 Ms Jones submitted that the offences could be categorised as domestic abuse and any involvement by a doctor is very serious indeed She submitted that should the tribunal find misconduct proved it should consider whether Dr Mukherjeersquos fitness to practise is impaired

6 Ms Jones referred the Tribunal to the comprehensive approach in determining impairment formulated by Dame Janet Smith in her Fifth Report on the Shipman Inquiry which states

lsquoDo our findings of fact in respect of the doctors misconduct deficient professional performance adverse health conviction caution or determination show that hisher fitness to practise is impaired in the sense that she

a has in the past acted andor is liable in the future to act so as to put a patient or patients at unwarranted risk of harm andor

b has in the past brought andor is liable in the future to bring the medical profession into disrepute andor

c has in the past breached andor is liable in the future to breach one of the fundamental tenets of the medical profession andor

d has in the past acted dishonestly andor is liable to act dishonestly in the futurersquo

7 Ms Jones conceded that Dr Mukherjeersquos actions have not put patients at risk She submitted that Dr Mukherjeersquos actions have brought the profession into disrepute and that limb b is clearly made out She submitted that it is for the Tribunal to determine whether Dr Mukherjee has breached one of the fundamental tenets of the profession She submitted that Dr Mukherjeersquos behaviour which included his failure to inform the GMC and the finding of the overseas regulator amounted to such a breach 8 She accepted that Dr Mukherjee has demonstrated remediation and remorse but invited the Tribunal to have regard to the nature of the misconduct and breaches of GMP and the seriousness of the misconduct She referred the Tribunal to the principle in

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 12

the case of Chaudhary v GMC 2017 EWHC 2561 (Admin) in relation to the need to give sufficient weight to the overarching objective which includes the wider public interest 9 Ms Jones referred the Tribunal to the case of Grant v NMC 2011 EWCH92 (Admin) and the need to uphold proper standards and confidence in the profession She accepted that the case law requires the Tribunal to look at impairment today but it is also required to have regard to the seriousness of the misconduct given the facts found proved She submitted that this is the type of case where notwithstanding Dr Mukherjeersquos personal remediation a finding of impairment is appropriate on public interest grounds 10 Ms Jones submitted that the Tribunal must consider the public interest regarding Dr Mukherjeersquos serious misconduct his failure to report his conviction and the determination by the overseas regulator and therefore a finding of impairment is imperative The Relevant Legal Principles 11 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 Tribunalrsquos judgement alone 12 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 and then whether the finding of that misconduct which was serious could lead to a finding of impairment 13 The Tribunal must determine whether Dr Mukherjeersquos fitness to practise is impaired today taking into account his 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 It was also mindful of the overarching objective as set out in Section 1(A) of the Medical Act and the importance of promoting and maintaining public confidence in the profession and proper standards of conduct 14 The Tribunal also took account of the case of Remedy UK Ltd v GMC (2010) EWHC 1245 (Admin) which described misconduct of two principal kinds

a sufficiently serious misconduct in the exercise of professional practice such that it can be properly described as misconduct going to fitness to practise b conduct of a morally culpable or otherwise disgraceful kind which may and often will occur outwith the course of professional practice itself but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 13

The Tribunalrsquos Determination on Impairment Misconduct 15 The Tribunal took account of paragraphs 1 and 75 in GMP as stated above 16 The Tribunal noted that Dr Mukherjee was convicted of two counts of mischief and one count of uttering threats The Tribunal considered the behaviour which led to Dr Mukherjeersquos conviction in that his offences occurred in the context of a dysfunctional relationship and included threats of violence against the complainant The Tribunal noted that in his email dated 15 March 2015 Dr Mukherjee accepted that the relationship with the complainant was toxic 17 The Tribunal is in agreement with the College of Physicians and Surgeons of Ontario (the CPSO) determination that Dr Mukherjee demonstrated disgraceful and outrageous behaviour 18 The Tribunal also noted the comments from Justice Robert G Selkirk who stated in his sentencing remarks

lsquo hellipit is fair to describe these events as acts of domestic violence which the Courts have always wanted to denounce and deterrsquo

19 The Tribunal considered that Dr Mukherjeersquos behaviour demonstrated sustained misconduct in the context of a domestic relationship over a period of months in 2013 The Tribunal has taken into account that Dr Mukherjeersquos offences were against a female and it was mindful that he works in obstetrics and gynaecology his primary patients being female 20 The Tribunal next considered Dr Mukherjeersquos failure to notify the GMC of his conviction without delay The Tribunal noted paragraph 75 as stated above and paragraph 3 of GMP Paragraph 3 states

lsquo3 Good medical practice describes what is expected of all doctors registered with the General Medical Council (GMC) It is your responsibility to be familiar with Good medical practice and the explanatory guidancedagger which supports it and to follow the guidance they containrsquo

21 The Tribunal is of the opinion that from 2013 onwards Dr Mukherjee had the opportunity to inform the GMC of the Canadian Police investigation and he must have realised at some time that he had a duty to do so especially following his conviction and sentence in 2015 The Tribunal determined that Dr Mukherjeersquos conduct demonstrated flagrant breaches of the principles in paragraphs 3 and 75 of GMP in that he failed to report his conviction to the GMC over an extended period when he should have known had a duty to do so

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 14

22 The Tribunal considered that Dr Mukherjeersquos conduct represented a significant departure from the expected standards of conduct and behaviour of a doctor as set out in paragraphs 1 3 and 75 of GMP 23 The Tribunal concluded that Dr Mukherjeersquos conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct Determination by a Regulatory Body 24 In considering whether Dr Mukherjeersquos fitness to practise is impaired by the determination by another regulatory body in this case the Tribunal has regard to section 35C(2) of the Medical Act which states

lsquoA personrsquos fitness to practise shall be regarded as ldquoimpairedrdquo for the purposes of this Act by reason only of ndash hellip

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired or a determination by a regulatory body elsewhere to the same effectrsquo

25 Section 35C(3) provides that an allegation may be based on a matter that is alleged to have occurred outside the United Kingdom 26 Section 35(C)(9) provides

lsquohelliprdquoregulatory bodyrdquo means a regulatory body which has the function of authorising persons to practise as a member of health or social care professionhelliprsquo

27 The Tribunal was satisfied that on 4 March 2019 the College of Physicians and Surgeons of Ontario (CPOS) in Canada made a determination against Dr Mukherjee and imposed a suspension for a period of six months Impairment 28 The Tribunal having found that the facts proved in relation to paragraphs 1 and 2 of the Allegation amounted to misconduct went on to consider whether as a result of that misconduct Dr Mukherjeersquos fitness to practise is currently impaired The Tribunal also considered whether the regulatory determination as found proved in paragraph 3 of the Allegation impaired his current fitness to practise

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 15

29 The Tribunal took account of Dr Mukherjeersquos personal remediation in relation to his convictions It noted that as part of his sentencing Dr Mukherjee completed a course on domestic violence Dr Mukherjee has also completed the courses lsquoPartner Assault Response Program aka Living Without Violencersquo and lsquoUnderstanding Boundariesrsquo XXX 30 Dr Mukherjee also worked with a workplace mentor at the Hospital on a monthly basis to discuss and review his conduct and interpersonal performance in the workplace 31 The Tribunal took account of Dr Mukherjeersquos statement in his email dated 4 August 2019 which states

lsquoI had submitted detailed statements to the IOT in April 2018 amp March 2019 pertaining to this single isolated incident related to personal domestic issue NOT involving any patients which started as a workplace affair starting in February 2012 terminating in Jan 2014 relationship was toxic and deteriorated as the time progressed leaving permanent ramifications affecting my career family self respect and my self confidence I am most remorseful repentant apologetic and ashamed of my behaviour and over these long period of six years I have worked in a constructive way with self analysis projected learning and reevaluation of various aspects of my life in a positive way Attending and successfully completing courses inclusive of the 1Boundaries Course at the Western University in London Ontario 2 Partner Assault Program which lasted for a period of 10 weeks 3[XXX] as were recommended by the Honble Court and by the CPSO I am also planning to attend Anger Management Course in Ottawa starting October 2019 this has been arranged by CMPA with consent and approval from CPSO In addition as recommended by the Hospital authorities XXX also confirmed that I was safe was allowed to continue with full clinical practice administrative responsibility as the Chief of Obstetrics amp Gynaecolgy and academic responsibility as Clinical Lecturer with the Ottawa Universityrsquo

32 The Tribunal noted that within a month of the CPSO determination on the 4 March 2019 (which included a six monthsrsquo suspension from practising in Canada) Dr Mukherjee started a job as a doctor in the UK on 10 April 2019 although it also noted that the GMC has not brought any allegation in relation to this 33 The Tribunal has not been made aware of any other disciplinary findings against Dr Mukherjee The Tribunal acknowledges that whilst Dr Mukherjee has made

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 16

expressions of remorse and sorrow which were directed towards the impact on himself his family and career he appears to lack sufficient insight into the impact on the complainant 34 The Tribunal considered that Dr Mukherjee has remediated his personal failings to a significant extent Nevertheless the Tribunal found that even though Dr Mukherjee has developed some insight and remediated his personal misconduct a finding of impairment is necessary in order to uphold proper standards and maintain public confidence in the profession consistent with the overarching objective The Tribunal was mindful that doctors occupy a position of privilege and trust and are expected to act in a manner which maintains public confidence in them and in the medical profession and to uphold proper standards of conduct 35 The Tribunal is in no doubt that public confidence in the medical profession and the need to uphold proper standards for that profession would be adversely affected if it were not to make a finding of impairment in this case The Tribunal has therefore determined that Dr Mukherjeersquos fitness to practise is currently impaired by reason of misconduct and the determination by an overseas regulator Determination on Sanction - 18032020 1 Having determined that Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by an overseas body the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction if any to impose Submissions 2 On behalf of the GMC Ms Jones reminded the Tribunal that the offences for which Dr Mukherjee received a conditional discharge were serious She acknowledged that the offences occurred some time ago in 2013 and there have been no further incidents She also acknowledged that Dr Mukherjee has remediated his misconduct and has expressed remorse at his behaviour 3 Ms Jones submitted that a sanction of suspension is appropriate in this case She referred the Tribunal to Sanctions Guidance (November 2019) (the SG) 4 Ms Jones acknowledged that Dr Mukherjee has developing insight and that there had been a passage of time since Dr Mukherjeersquos offences occurred In relation to remediation Ms Jones referred the Tribunal to paragraph 31 which states

rsquo31 Remediation is where a doctor addresses concerns about their knowledge skills conduct or behaviour Remediation can take a number of

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 17

forms including coaching mentoring training and rehabilitation (this list is not exhaustive) and where fully successful will make impairment unlikelyrsquo

5 In relation to insight Ms Jones referred the Tribunal to paragraphs 45 and 46 of the SG which state

rsquo45 Expressing insight involves demonstrating reflection and remediation 46 A doctor is likely to have insight if they

a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31ndash33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearingrsquo

6 Ms Jones referred the Tribunal to paragraph 56d of the SG which states rsquo56 Tribunals are also likely to take more serious action where certain conduct arises in a doctorrsquos personal life such as (this list is not exhaustive) hellip

d misconduct involving violence or offences of a sexual nature (see paragraphs 149ndash150) helliprsquo

7 Ms Jones reminded the Tribunal that Dr Mukherjeersquos behaviour amounted to domestic violence and the text messages he sent to the complainant were somewhat sinister She submitted that this case is too serious for the Tribunal to take no action or to impose conditions on Dr Mukherjeersquos registration Ms Jones further submitted that Dr Mukherjeersquos misconduct including his failure to inform the GMC of his conviction was so serious that it calls for a period of suspension She referred the Tribunal to paragraph 92 of the SG which states

lsquo92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)rsquo

8 Ms Jones submitted that the GMC consider that Dr Mukherjeersquos misconduct is very serious but falls short of incompatibility with continued registration She accepted that

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

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MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 4: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

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MPT Dr MUKHERJEE 4

10 The Tribunal granted the GMCrsquos application made pursuant to Rule 31 of the Rules to proceed in Dr Mukherjeersquos absence The Tribunalrsquos full decision on the application is included at Annex B 11 The Tribunal determined of its own volition made pursuant to 17(6) of the Rules to amend the stem of paragraph 1 The amendment was made as paragraph 1 contained an incorrect date Paragraph 1 is amended as follows

lsquo1 On 23 May February 2015 at Ontario Court of Justice you were made the subject of an order for conditional discharge for a period of 12 months in respect of offences under the Criminal Code of Canada consisting ofrsquo

The Allegation and the Doctorrsquos Response 12 In light of Dr Mukherjeersquos response to the Allegation made against him the Tribunal is required to determine all of the facts as follows

1 On 23 May February 2015 at Ontario Court of Justice you were made the subject of an order for conditional discharge for a period of 12 months in respect of offences under the Criminal Code of Canada consisting ofrsquo

a mischief (two counts) pursuant to section 430(4) To be determined b uttering threats to cause death or bodily harm pursuant to section 2641 (1)(a) To be determined

2 You failed to notify the GMC without delay that you had been a found guilty of the criminal offences detailed in paragraph 1 To be determined b conditionally discharged of the criminal offences detailed in paragraph 1 To be determined

3 On 4 March 2019 The College of Physicians and Surgeons of Ontario a determined you had committed an act of professional misconduct in that you had been found guilty of an offence that is relevant to your suitability to practise and you had engaged in an act or omission relevant to the practice of medicine that having regard to

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 5

all the circumstances would reasonably be regarded by members as disgraceful dishonourable or unprofessional To be determined

b directed you attend before the panel to be reprimanded To be determined

c suspended your certificate of registration for a period of six months commencing immediately To be determined

d ordered you to at your own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than 12 months from the date of the Order To be determined

The Evidence 13 The Tribunal received evidence on behalf of the GMC in the form of a witness statement from the following witness who was not called to give oral evidence

bull Mr A Investigation Officer GMC Documentary Evidence 14 The Tribunal had regard to the documentary evidence provided by the parties The Canadian spelling has been retained where appropriate This evidence included but was not limited to

bull Reasons for Judgement from Ontario Court of Justice dated 12 January 2015 bull Transcript from sentencing hearing from Ontario Court of Justice dated 23

February 2015 bull Referral from College of Physicians and Surgeons of Ontario (the CPSO dated

7 September 2017 bull Extract from the CPSO website confirming Practise restrictions dated 4 March

2019 bull Determination from the CPSO dated 4 March 2019

bull Statements provided by Dr Mukherjee dated 16 April 2018 25 March 2019 4 August 2019 10 January 2020 and 26 February 2020

bull XXX bull XXX bull Certificate of attendance on Understanding Boundaries and Managing the

Risks course dated 5 June 2015 bull Emails from Dr Mukherjee to GMC dated 30 October 2017 and 7 August 2018

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 6

bull DBS certificate dated 12 September 2019 bull XXX bull Canadian Criminal Record Check undated

bull Email from CPSO to Dr Mukherjee dated 12 December 2019 bull Extract from CPSO website confirming no restrictions dated 26 December

2019 bull Patient reviews from ratemdscom and ontariodoctordirectyca dated from

2012 to 2019 The Tribunalrsquos Approach 15 In reaching its decision on facts the Tribunal has borne in mind that the burden of proof rests on the GMC and it is for the GMC to prove the Allegation Dr Mukherjee does not need to prove anything The standard of proof is that applicable to civil proceedings namely the balance of probabilities ie whether it is more likely than not that the events occurred The Tribunalrsquos Analysis of the Evidence and Findings 16 The Tribunal has considered each paragraph of the Allegation separately and has evaluated the evidence in order to make its findings on the facts Paragraph 1 17 The Tribunal has noted the reasons for the judgement against Dr Mukherjee from Justice Robert Selkirk of the Ontario Court of Justice dated 12 January 2015 It has also taken account of the transcript from sentencing hearing dated 23 February 2015 18 The Tribunal noted Dr Mukherjeersquos email to the GMC dated 10 January 2020 in which he confirmed the allegations of two counts of mischief pursuant to section 430(4) and one count of uttering threats pursuant to section 2641(1)(a) In this email Dr Mukherjee stated that he was not lsquoconvictedrsquo of any criminal offence but was given a lsquoconditional dischargersquo He accepted however that he was found guilty of the offences in his email to the GMC dated 15 March 2019 19 Given the documentary evidence and Dr Mukherjeersquos own confirmation in his email the Tribunal was satisfied that on 23 February 2015 at Ontario Court of Justice he was made the subject of an order for a conditional discharge in relation to two counts of mischief and one count of uttering threats to cause death or bodily harm having been found guilty of those offences 20 Accordingly the Tribunal found paragraph 1 proved

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 7

Paragraph 2 21 The Tribunal first considered whether or not Dr Mukherjee was under a duty to inform the GMC firstly that he had been found guilty of the criminal offences detailed in paragraph 1 and secondly that he had been conditionally discharged in relation to the criminal offences 22 The Tribunal took account of paragraph 75 in the GMCrsquos guidance Good Medical Practice (The GMP) which states

lsquo75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence

c another professional body has made a finding against your registration as a result of fitness to practise procedures

23 The Tribunal noted that Dr Mukherjee has been registered with the GMC since 25 June 1999 and continued to be registered whilst he was working in Canada 24 The Tribunal was satisfied that as Dr Mukherjee was registered with the GMC he had a duty under GMP to inform the GMC that he had been found guilty of criminal offences and received a conditional discharge for those offences 25 The Tribunal took account of Mr Arsquos witness statement in which he confirmed that all communication including all documents telephone notes emails and letters between the GMC and the doctor are recorded in electronic form on a database called Siebel Mr A confirmed from reviewing Dr Mukherjeersquos history on Siebel that there is no record of the GMC receiving notification from Dr Mukherjee or a third party that he had been found guilty of the criminal offences and received a conditional discharge for those offences 26 The Tribunal noted Dr Mukherjeersquos statement in his email to the GMC dated 10 January 2020

lsquoI take FULL RESPONSIBILITY for FAILING to notify GMC with regards to events and criminal charges which occurred in January 2014 this omission was unintentional I was not aware about this stipulation in paragraph 75 of GMP I have been Registered without License to practice since 2007 with yearly renewal of Registration during the process of renewal no questions are asked about any charges or change of circumstances If I knew about this stipulation I would most certainly informed GMC without delayrsquo

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 8

27 The Tribunal was satisfied that Dr Mukherjee failed to notify the GMC of the criminal offences and the conditional discharge 28 Accordingly the Tribunal found paragraph 2 proved Paragraph 3 29 The Tribunal has taken account of the CPSO Record of Practise restrictions It has also taken account of the email to the GMC dated 7 March 2019 containing the lsquoNotice of Suspension and Terms Conditions and Limitations on the Certificate of Registrationrsquo from the College of Physicians and Surgeons of Ontario which states

lsquoOn March 4 2019 the Discipline Committee ordered and directed that 1 Dr Mukherjee attend before the panel to be reprimanded 2 The Registrar suspend Dr Mukherjees certificate of registration for a period of six (6) months commencing immediately Dr Mukherjee shall comply with the College Policy 2-07 Practice Management Considerations for Physicians Who Cease to Practise Take an Extended Leave of Absence or Close Their Practice Due to Relocation a copy of which forms Schedule A to this Order 3 The Registrar place the following terms conditions and limitations on Dr Mukherjees certificate of registration

a Dr Mukherjee will at his own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than twelve (12) months from the date of this Order

4 Dr Mukherjee pay costs to the College in the amount of $600000 within 30 days of the date of this Orderrsquo

30 The Tribunal noted that Dr Mukherjee accepted in his emails dated 15 March 2019 and 4 August 2019 that he was subject to the regulatory determination and sanction 31 The Tribunal was satisfied having seen the determination from the CPSO dated 4 March 2019 that it was issued to Dr Mukherjee 32 Accordingly the Tribunal found paragraph 3 proved

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 9

The Tribunalrsquos Overall Determination on the Facts 33 The Tribunal has determined the facts as follows

lsquo1 On 23 May February 2015 at Ontario Court of Justice you were made the subject of an order for conditional discharge for a period of 12 months in respect of offences under the Criminal Code of Canada consisting ofrsquo

a mischief (two counts) pursuant to section 430(4) Determined and found proved b uttering threats to cause death or bodily harm pursuant to section 2641 (1)(a) Determined and found proved

2 You failed to notify the GMC without delay that you had been a found guilty of the criminal offences detailed in paragraph 1 Determined and found proved b conditionally discharged of the criminal offences detailed in paragraph 1 Determined and found proved

3 On 4 March 2019 The College of Physicians and Surgeons of Ontario a determined you had committed an act of professional misconduct in that you had been found guilty of an offence that is relevant to your suitability to practise and you had engaged in an act or omission relevant to the practice of medicine that having regard to all the circumstances would reasonably be regarded by members as disgraceful dishonourable or unprofessional Determined and found proved

b directed you attend before the panel to be reprimanded Determined and found proved

c suspended your certificate of registration for a period of six months commencing immediately Determined and found proved

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 10

d ordered you to at your own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than 12 months from the date of the Order Determined and found proved

Determination on Impairment - 17032020 1 The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether on the basis of the facts which it has found proved as set out before Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by another regulator The Evidence 2 The Tribunal has taken into account all the evidence received during the facts stage of the hearing both oral and documentary In addition the Tribunal also received a report from Dr E Dr Mukherjeersquos Responsible Officer dated 6 January 2020 Submissions 3 On behalf of the GMC Ms Jones reminded the Tribunal of the two stage test it must apply in relation to misconduct Ms Jones referred the Tribunal to the case of Cheatle v GMC (2009) EWHC 645 (Admin) in relation to the approach to be taken to findings of misconduct and impairment She submitted the misconduct amounts to serious misconduct Dr Mukherjee was convicted by an overseas court of two offences of mischief which would have been charged in this country as criminal damage and also a charge of threats to cause death or bodily harm sent to the complainant She stated that this was a series of offences that occurred over a few months in the context of a dysfunctional relationship which involved intimidation She stated it was an abusive relationship albeit that it was not all one way She submitted that Dr Mukherjeersquos behaviour amounted to serious professional misconduct She submitted that Dr Mukherjee failed to notify the GMC of the criminal offences for two years Ms Jones reminded the Tribunal that it is the registrantrsquos obligation to inform the regulator of any criminal proceedings She submitted that Dr Mukherjeersquos explanation that he did not appreciate it was his duty was unsatisfactory 4 Ms Jones referred the Tribunal to paragraphs 1 and 75 of the GMCrsquos guidance Good Medical Practice (GMP) which state

lsquo1 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

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 11

75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence c another professional body has made a finding against your registration as a result of fitness to practise proceduresrsquo

5 Ms Jones submitted that the offences could be categorised as domestic abuse and any involvement by a doctor is very serious indeed She submitted that should the tribunal find misconduct proved it should consider whether Dr Mukherjeersquos fitness to practise is impaired

6 Ms Jones referred the Tribunal to the comprehensive approach in determining impairment formulated by Dame Janet Smith in her Fifth Report on the Shipman Inquiry which states

lsquoDo our findings of fact in respect of the doctors misconduct deficient professional performance adverse health conviction caution or determination show that hisher fitness to practise is impaired in the sense that she

a has in the past acted andor is liable in the future to act so as to put a patient or patients at unwarranted risk of harm andor

b has in the past brought andor is liable in the future to bring the medical profession into disrepute andor

c has in the past breached andor is liable in the future to breach one of the fundamental tenets of the medical profession andor

d has in the past acted dishonestly andor is liable to act dishonestly in the futurersquo

7 Ms Jones conceded that Dr Mukherjeersquos actions have not put patients at risk She submitted that Dr Mukherjeersquos actions have brought the profession into disrepute and that limb b is clearly made out She submitted that it is for the Tribunal to determine whether Dr Mukherjee has breached one of the fundamental tenets of the profession She submitted that Dr Mukherjeersquos behaviour which included his failure to inform the GMC and the finding of the overseas regulator amounted to such a breach 8 She accepted that Dr Mukherjee has demonstrated remediation and remorse but invited the Tribunal to have regard to the nature of the misconduct and breaches of GMP and the seriousness of the misconduct She referred the Tribunal to the principle in

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 12

the case of Chaudhary v GMC 2017 EWHC 2561 (Admin) in relation to the need to give sufficient weight to the overarching objective which includes the wider public interest 9 Ms Jones referred the Tribunal to the case of Grant v NMC 2011 EWCH92 (Admin) and the need to uphold proper standards and confidence in the profession She accepted that the case law requires the Tribunal to look at impairment today but it is also required to have regard to the seriousness of the misconduct given the facts found proved She submitted that this is the type of case where notwithstanding Dr Mukherjeersquos personal remediation a finding of impairment is appropriate on public interest grounds 10 Ms Jones submitted that the Tribunal must consider the public interest regarding Dr Mukherjeersquos serious misconduct his failure to report his conviction and the determination by the overseas regulator and therefore a finding of impairment is imperative The Relevant Legal Principles 11 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 Tribunalrsquos judgement alone 12 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 and then whether the finding of that misconduct which was serious could lead to a finding of impairment 13 The Tribunal must determine whether Dr Mukherjeersquos fitness to practise is impaired today taking into account his 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 It was also mindful of the overarching objective as set out in Section 1(A) of the Medical Act and the importance of promoting and maintaining public confidence in the profession and proper standards of conduct 14 The Tribunal also took account of the case of Remedy UK Ltd v GMC (2010) EWHC 1245 (Admin) which described misconduct of two principal kinds

a sufficiently serious misconduct in the exercise of professional practice such that it can be properly described as misconduct going to fitness to practise b conduct of a morally culpable or otherwise disgraceful kind which may and often will occur outwith the course of professional practice itself but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 13

The Tribunalrsquos Determination on Impairment Misconduct 15 The Tribunal took account of paragraphs 1 and 75 in GMP as stated above 16 The Tribunal noted that Dr Mukherjee was convicted of two counts of mischief and one count of uttering threats The Tribunal considered the behaviour which led to Dr Mukherjeersquos conviction in that his offences occurred in the context of a dysfunctional relationship and included threats of violence against the complainant The Tribunal noted that in his email dated 15 March 2015 Dr Mukherjee accepted that the relationship with the complainant was toxic 17 The Tribunal is in agreement with the College of Physicians and Surgeons of Ontario (the CPSO) determination that Dr Mukherjee demonstrated disgraceful and outrageous behaviour 18 The Tribunal also noted the comments from Justice Robert G Selkirk who stated in his sentencing remarks

lsquo hellipit is fair to describe these events as acts of domestic violence which the Courts have always wanted to denounce and deterrsquo

19 The Tribunal considered that Dr Mukherjeersquos behaviour demonstrated sustained misconduct in the context of a domestic relationship over a period of months in 2013 The Tribunal has taken into account that Dr Mukherjeersquos offences were against a female and it was mindful that he works in obstetrics and gynaecology his primary patients being female 20 The Tribunal next considered Dr Mukherjeersquos failure to notify the GMC of his conviction without delay The Tribunal noted paragraph 75 as stated above and paragraph 3 of GMP Paragraph 3 states

lsquo3 Good medical practice describes what is expected of all doctors registered with the General Medical Council (GMC) It is your responsibility to be familiar with Good medical practice and the explanatory guidancedagger which supports it and to follow the guidance they containrsquo

21 The Tribunal is of the opinion that from 2013 onwards Dr Mukherjee had the opportunity to inform the GMC of the Canadian Police investigation and he must have realised at some time that he had a duty to do so especially following his conviction and sentence in 2015 The Tribunal determined that Dr Mukherjeersquos conduct demonstrated flagrant breaches of the principles in paragraphs 3 and 75 of GMP in that he failed to report his conviction to the GMC over an extended period when he should have known had a duty to do so

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 14

22 The Tribunal considered that Dr Mukherjeersquos conduct represented a significant departure from the expected standards of conduct and behaviour of a doctor as set out in paragraphs 1 3 and 75 of GMP 23 The Tribunal concluded that Dr Mukherjeersquos conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct Determination by a Regulatory Body 24 In considering whether Dr Mukherjeersquos fitness to practise is impaired by the determination by another regulatory body in this case the Tribunal has regard to section 35C(2) of the Medical Act which states

lsquoA personrsquos fitness to practise shall be regarded as ldquoimpairedrdquo for the purposes of this Act by reason only of ndash hellip

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired or a determination by a regulatory body elsewhere to the same effectrsquo

25 Section 35C(3) provides that an allegation may be based on a matter that is alleged to have occurred outside the United Kingdom 26 Section 35(C)(9) provides

lsquohelliprdquoregulatory bodyrdquo means a regulatory body which has the function of authorising persons to practise as a member of health or social care professionhelliprsquo

27 The Tribunal was satisfied that on 4 March 2019 the College of Physicians and Surgeons of Ontario (CPOS) in Canada made a determination against Dr Mukherjee and imposed a suspension for a period of six months Impairment 28 The Tribunal having found that the facts proved in relation to paragraphs 1 and 2 of the Allegation amounted to misconduct went on to consider whether as a result of that misconduct Dr Mukherjeersquos fitness to practise is currently impaired The Tribunal also considered whether the regulatory determination as found proved in paragraph 3 of the Allegation impaired his current fitness to practise

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 15

29 The Tribunal took account of Dr Mukherjeersquos personal remediation in relation to his convictions It noted that as part of his sentencing Dr Mukherjee completed a course on domestic violence Dr Mukherjee has also completed the courses lsquoPartner Assault Response Program aka Living Without Violencersquo and lsquoUnderstanding Boundariesrsquo XXX 30 Dr Mukherjee also worked with a workplace mentor at the Hospital on a monthly basis to discuss and review his conduct and interpersonal performance in the workplace 31 The Tribunal took account of Dr Mukherjeersquos statement in his email dated 4 August 2019 which states

lsquoI had submitted detailed statements to the IOT in April 2018 amp March 2019 pertaining to this single isolated incident related to personal domestic issue NOT involving any patients which started as a workplace affair starting in February 2012 terminating in Jan 2014 relationship was toxic and deteriorated as the time progressed leaving permanent ramifications affecting my career family self respect and my self confidence I am most remorseful repentant apologetic and ashamed of my behaviour and over these long period of six years I have worked in a constructive way with self analysis projected learning and reevaluation of various aspects of my life in a positive way Attending and successfully completing courses inclusive of the 1Boundaries Course at the Western University in London Ontario 2 Partner Assault Program which lasted for a period of 10 weeks 3[XXX] as were recommended by the Honble Court and by the CPSO I am also planning to attend Anger Management Course in Ottawa starting October 2019 this has been arranged by CMPA with consent and approval from CPSO In addition as recommended by the Hospital authorities XXX also confirmed that I was safe was allowed to continue with full clinical practice administrative responsibility as the Chief of Obstetrics amp Gynaecolgy and academic responsibility as Clinical Lecturer with the Ottawa Universityrsquo

32 The Tribunal noted that within a month of the CPSO determination on the 4 March 2019 (which included a six monthsrsquo suspension from practising in Canada) Dr Mukherjee started a job as a doctor in the UK on 10 April 2019 although it also noted that the GMC has not brought any allegation in relation to this 33 The Tribunal has not been made aware of any other disciplinary findings against Dr Mukherjee The Tribunal acknowledges that whilst Dr Mukherjee has made

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 16

expressions of remorse and sorrow which were directed towards the impact on himself his family and career he appears to lack sufficient insight into the impact on the complainant 34 The Tribunal considered that Dr Mukherjee has remediated his personal failings to a significant extent Nevertheless the Tribunal found that even though Dr Mukherjee has developed some insight and remediated his personal misconduct a finding of impairment is necessary in order to uphold proper standards and maintain public confidence in the profession consistent with the overarching objective The Tribunal was mindful that doctors occupy a position of privilege and trust and are expected to act in a manner which maintains public confidence in them and in the medical profession and to uphold proper standards of conduct 35 The Tribunal is in no doubt that public confidence in the medical profession and the need to uphold proper standards for that profession would be adversely affected if it were not to make a finding of impairment in this case The Tribunal has therefore determined that Dr Mukherjeersquos fitness to practise is currently impaired by reason of misconduct and the determination by an overseas regulator Determination on Sanction - 18032020 1 Having determined that Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by an overseas body the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction if any to impose Submissions 2 On behalf of the GMC Ms Jones reminded the Tribunal that the offences for which Dr Mukherjee received a conditional discharge were serious She acknowledged that the offences occurred some time ago in 2013 and there have been no further incidents She also acknowledged that Dr Mukherjee has remediated his misconduct and has expressed remorse at his behaviour 3 Ms Jones submitted that a sanction of suspension is appropriate in this case She referred the Tribunal to Sanctions Guidance (November 2019) (the SG) 4 Ms Jones acknowledged that Dr Mukherjee has developing insight and that there had been a passage of time since Dr Mukherjeersquos offences occurred In relation to remediation Ms Jones referred the Tribunal to paragraph 31 which states

rsquo31 Remediation is where a doctor addresses concerns about their knowledge skills conduct or behaviour Remediation can take a number of

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 17

forms including coaching mentoring training and rehabilitation (this list is not exhaustive) and where fully successful will make impairment unlikelyrsquo

5 In relation to insight Ms Jones referred the Tribunal to paragraphs 45 and 46 of the SG which state

rsquo45 Expressing insight involves demonstrating reflection and remediation 46 A doctor is likely to have insight if they

a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31ndash33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearingrsquo

6 Ms Jones referred the Tribunal to paragraph 56d of the SG which states rsquo56 Tribunals are also likely to take more serious action where certain conduct arises in a doctorrsquos personal life such as (this list is not exhaustive) hellip

d misconduct involving violence or offences of a sexual nature (see paragraphs 149ndash150) helliprsquo

7 Ms Jones reminded the Tribunal that Dr Mukherjeersquos behaviour amounted to domestic violence and the text messages he sent to the complainant were somewhat sinister She submitted that this case is too serious for the Tribunal to take no action or to impose conditions on Dr Mukherjeersquos registration Ms Jones further submitted that Dr Mukherjeersquos misconduct including his failure to inform the GMC of his conviction was so serious that it calls for a period of suspension She referred the Tribunal to paragraph 92 of the SG which states

lsquo92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)rsquo

8 Ms Jones submitted that the GMC consider that Dr Mukherjeersquos misconduct is very serious but falls short of incompatibility with continued registration She accepted that

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 5: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

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MPT Dr MUKHERJEE 5

all the circumstances would reasonably be regarded by members as disgraceful dishonourable or unprofessional To be determined

b directed you attend before the panel to be reprimanded To be determined

c suspended your certificate of registration for a period of six months commencing immediately To be determined

d ordered you to at your own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than 12 months from the date of the Order To be determined

The Evidence 13 The Tribunal received evidence on behalf of the GMC in the form of a witness statement from the following witness who was not called to give oral evidence

bull Mr A Investigation Officer GMC Documentary Evidence 14 The Tribunal had regard to the documentary evidence provided by the parties The Canadian spelling has been retained where appropriate This evidence included but was not limited to

bull Reasons for Judgement from Ontario Court of Justice dated 12 January 2015 bull Transcript from sentencing hearing from Ontario Court of Justice dated 23

February 2015 bull Referral from College of Physicians and Surgeons of Ontario (the CPSO dated

7 September 2017 bull Extract from the CPSO website confirming Practise restrictions dated 4 March

2019 bull Determination from the CPSO dated 4 March 2019

bull Statements provided by Dr Mukherjee dated 16 April 2018 25 March 2019 4 August 2019 10 January 2020 and 26 February 2020

bull XXX bull XXX bull Certificate of attendance on Understanding Boundaries and Managing the

Risks course dated 5 June 2015 bull Emails from Dr Mukherjee to GMC dated 30 October 2017 and 7 August 2018

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 6

bull DBS certificate dated 12 September 2019 bull XXX bull Canadian Criminal Record Check undated

bull Email from CPSO to Dr Mukherjee dated 12 December 2019 bull Extract from CPSO website confirming no restrictions dated 26 December

2019 bull Patient reviews from ratemdscom and ontariodoctordirectyca dated from

2012 to 2019 The Tribunalrsquos Approach 15 In reaching its decision on facts the Tribunal has borne in mind that the burden of proof rests on the GMC and it is for the GMC to prove the Allegation Dr Mukherjee does not need to prove anything The standard of proof is that applicable to civil proceedings namely the balance of probabilities ie whether it is more likely than not that the events occurred The Tribunalrsquos Analysis of the Evidence and Findings 16 The Tribunal has considered each paragraph of the Allegation separately and has evaluated the evidence in order to make its findings on the facts Paragraph 1 17 The Tribunal has noted the reasons for the judgement against Dr Mukherjee from Justice Robert Selkirk of the Ontario Court of Justice dated 12 January 2015 It has also taken account of the transcript from sentencing hearing dated 23 February 2015 18 The Tribunal noted Dr Mukherjeersquos email to the GMC dated 10 January 2020 in which he confirmed the allegations of two counts of mischief pursuant to section 430(4) and one count of uttering threats pursuant to section 2641(1)(a) In this email Dr Mukherjee stated that he was not lsquoconvictedrsquo of any criminal offence but was given a lsquoconditional dischargersquo He accepted however that he was found guilty of the offences in his email to the GMC dated 15 March 2019 19 Given the documentary evidence and Dr Mukherjeersquos own confirmation in his email the Tribunal was satisfied that on 23 February 2015 at Ontario Court of Justice he was made the subject of an order for a conditional discharge in relation to two counts of mischief and one count of uttering threats to cause death or bodily harm having been found guilty of those offences 20 Accordingly the Tribunal found paragraph 1 proved

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 7

Paragraph 2 21 The Tribunal first considered whether or not Dr Mukherjee was under a duty to inform the GMC firstly that he had been found guilty of the criminal offences detailed in paragraph 1 and secondly that he had been conditionally discharged in relation to the criminal offences 22 The Tribunal took account of paragraph 75 in the GMCrsquos guidance Good Medical Practice (The GMP) which states

lsquo75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence

c another professional body has made a finding against your registration as a result of fitness to practise procedures

23 The Tribunal noted that Dr Mukherjee has been registered with the GMC since 25 June 1999 and continued to be registered whilst he was working in Canada 24 The Tribunal was satisfied that as Dr Mukherjee was registered with the GMC he had a duty under GMP to inform the GMC that he had been found guilty of criminal offences and received a conditional discharge for those offences 25 The Tribunal took account of Mr Arsquos witness statement in which he confirmed that all communication including all documents telephone notes emails and letters between the GMC and the doctor are recorded in electronic form on a database called Siebel Mr A confirmed from reviewing Dr Mukherjeersquos history on Siebel that there is no record of the GMC receiving notification from Dr Mukherjee or a third party that he had been found guilty of the criminal offences and received a conditional discharge for those offences 26 The Tribunal noted Dr Mukherjeersquos statement in his email to the GMC dated 10 January 2020

lsquoI take FULL RESPONSIBILITY for FAILING to notify GMC with regards to events and criminal charges which occurred in January 2014 this omission was unintentional I was not aware about this stipulation in paragraph 75 of GMP I have been Registered without License to practice since 2007 with yearly renewal of Registration during the process of renewal no questions are asked about any charges or change of circumstances If I knew about this stipulation I would most certainly informed GMC without delayrsquo

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 8

27 The Tribunal was satisfied that Dr Mukherjee failed to notify the GMC of the criminal offences and the conditional discharge 28 Accordingly the Tribunal found paragraph 2 proved Paragraph 3 29 The Tribunal has taken account of the CPSO Record of Practise restrictions It has also taken account of the email to the GMC dated 7 March 2019 containing the lsquoNotice of Suspension and Terms Conditions and Limitations on the Certificate of Registrationrsquo from the College of Physicians and Surgeons of Ontario which states

lsquoOn March 4 2019 the Discipline Committee ordered and directed that 1 Dr Mukherjee attend before the panel to be reprimanded 2 The Registrar suspend Dr Mukherjees certificate of registration for a period of six (6) months commencing immediately Dr Mukherjee shall comply with the College Policy 2-07 Practice Management Considerations for Physicians Who Cease to Practise Take an Extended Leave of Absence or Close Their Practice Due to Relocation a copy of which forms Schedule A to this Order 3 The Registrar place the following terms conditions and limitations on Dr Mukherjees certificate of registration

a Dr Mukherjee will at his own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than twelve (12) months from the date of this Order

4 Dr Mukherjee pay costs to the College in the amount of $600000 within 30 days of the date of this Orderrsquo

30 The Tribunal noted that Dr Mukherjee accepted in his emails dated 15 March 2019 and 4 August 2019 that he was subject to the regulatory determination and sanction 31 The Tribunal was satisfied having seen the determination from the CPSO dated 4 March 2019 that it was issued to Dr Mukherjee 32 Accordingly the Tribunal found paragraph 3 proved

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 9

The Tribunalrsquos Overall Determination on the Facts 33 The Tribunal has determined the facts as follows

lsquo1 On 23 May February 2015 at Ontario Court of Justice you were made the subject of an order for conditional discharge for a period of 12 months in respect of offences under the Criminal Code of Canada consisting ofrsquo

a mischief (two counts) pursuant to section 430(4) Determined and found proved b uttering threats to cause death or bodily harm pursuant to section 2641 (1)(a) Determined and found proved

2 You failed to notify the GMC without delay that you had been a found guilty of the criminal offences detailed in paragraph 1 Determined and found proved b conditionally discharged of the criminal offences detailed in paragraph 1 Determined and found proved

3 On 4 March 2019 The College of Physicians and Surgeons of Ontario a determined you had committed an act of professional misconduct in that you had been found guilty of an offence that is relevant to your suitability to practise and you had engaged in an act or omission relevant to the practice of medicine that having regard to all the circumstances would reasonably be regarded by members as disgraceful dishonourable or unprofessional Determined and found proved

b directed you attend before the panel to be reprimanded Determined and found proved

c suspended your certificate of registration for a period of six months commencing immediately Determined and found proved

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 10

d ordered you to at your own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than 12 months from the date of the Order Determined and found proved

Determination on Impairment - 17032020 1 The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether on the basis of the facts which it has found proved as set out before Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by another regulator The Evidence 2 The Tribunal has taken into account all the evidence received during the facts stage of the hearing both oral and documentary In addition the Tribunal also received a report from Dr E Dr Mukherjeersquos Responsible Officer dated 6 January 2020 Submissions 3 On behalf of the GMC Ms Jones reminded the Tribunal of the two stage test it must apply in relation to misconduct Ms Jones referred the Tribunal to the case of Cheatle v GMC (2009) EWHC 645 (Admin) in relation to the approach to be taken to findings of misconduct and impairment She submitted the misconduct amounts to serious misconduct Dr Mukherjee was convicted by an overseas court of two offences of mischief which would have been charged in this country as criminal damage and also a charge of threats to cause death or bodily harm sent to the complainant She stated that this was a series of offences that occurred over a few months in the context of a dysfunctional relationship which involved intimidation She stated it was an abusive relationship albeit that it was not all one way She submitted that Dr Mukherjeersquos behaviour amounted to serious professional misconduct She submitted that Dr Mukherjee failed to notify the GMC of the criminal offences for two years Ms Jones reminded the Tribunal that it is the registrantrsquos obligation to inform the regulator of any criminal proceedings She submitted that Dr Mukherjeersquos explanation that he did not appreciate it was his duty was unsatisfactory 4 Ms Jones referred the Tribunal to paragraphs 1 and 75 of the GMCrsquos guidance Good Medical Practice (GMP) which state

lsquo1 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

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 11

75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence c another professional body has made a finding against your registration as a result of fitness to practise proceduresrsquo

5 Ms Jones submitted that the offences could be categorised as domestic abuse and any involvement by a doctor is very serious indeed She submitted that should the tribunal find misconduct proved it should consider whether Dr Mukherjeersquos fitness to practise is impaired

6 Ms Jones referred the Tribunal to the comprehensive approach in determining impairment formulated by Dame Janet Smith in her Fifth Report on the Shipman Inquiry which states

lsquoDo our findings of fact in respect of the doctors misconduct deficient professional performance adverse health conviction caution or determination show that hisher fitness to practise is impaired in the sense that she

a has in the past acted andor is liable in the future to act so as to put a patient or patients at unwarranted risk of harm andor

b has in the past brought andor is liable in the future to bring the medical profession into disrepute andor

c has in the past breached andor is liable in the future to breach one of the fundamental tenets of the medical profession andor

d has in the past acted dishonestly andor is liable to act dishonestly in the futurersquo

7 Ms Jones conceded that Dr Mukherjeersquos actions have not put patients at risk She submitted that Dr Mukherjeersquos actions have brought the profession into disrepute and that limb b is clearly made out She submitted that it is for the Tribunal to determine whether Dr Mukherjee has breached one of the fundamental tenets of the profession She submitted that Dr Mukherjeersquos behaviour which included his failure to inform the GMC and the finding of the overseas regulator amounted to such a breach 8 She accepted that Dr Mukherjee has demonstrated remediation and remorse but invited the Tribunal to have regard to the nature of the misconduct and breaches of GMP and the seriousness of the misconduct She referred the Tribunal to the principle in

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 12

the case of Chaudhary v GMC 2017 EWHC 2561 (Admin) in relation to the need to give sufficient weight to the overarching objective which includes the wider public interest 9 Ms Jones referred the Tribunal to the case of Grant v NMC 2011 EWCH92 (Admin) and the need to uphold proper standards and confidence in the profession She accepted that the case law requires the Tribunal to look at impairment today but it is also required to have regard to the seriousness of the misconduct given the facts found proved She submitted that this is the type of case where notwithstanding Dr Mukherjeersquos personal remediation a finding of impairment is appropriate on public interest grounds 10 Ms Jones submitted that the Tribunal must consider the public interest regarding Dr Mukherjeersquos serious misconduct his failure to report his conviction and the determination by the overseas regulator and therefore a finding of impairment is imperative The Relevant Legal Principles 11 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 Tribunalrsquos judgement alone 12 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 and then whether the finding of that misconduct which was serious could lead to a finding of impairment 13 The Tribunal must determine whether Dr Mukherjeersquos fitness to practise is impaired today taking into account his 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 It was also mindful of the overarching objective as set out in Section 1(A) of the Medical Act and the importance of promoting and maintaining public confidence in the profession and proper standards of conduct 14 The Tribunal also took account of the case of Remedy UK Ltd v GMC (2010) EWHC 1245 (Admin) which described misconduct of two principal kinds

a sufficiently serious misconduct in the exercise of professional practice such that it can be properly described as misconduct going to fitness to practise b conduct of a morally culpable or otherwise disgraceful kind which may and often will occur outwith the course of professional practice itself but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 13

The Tribunalrsquos Determination on Impairment Misconduct 15 The Tribunal took account of paragraphs 1 and 75 in GMP as stated above 16 The Tribunal noted that Dr Mukherjee was convicted of two counts of mischief and one count of uttering threats The Tribunal considered the behaviour which led to Dr Mukherjeersquos conviction in that his offences occurred in the context of a dysfunctional relationship and included threats of violence against the complainant The Tribunal noted that in his email dated 15 March 2015 Dr Mukherjee accepted that the relationship with the complainant was toxic 17 The Tribunal is in agreement with the College of Physicians and Surgeons of Ontario (the CPSO) determination that Dr Mukherjee demonstrated disgraceful and outrageous behaviour 18 The Tribunal also noted the comments from Justice Robert G Selkirk who stated in his sentencing remarks

lsquo hellipit is fair to describe these events as acts of domestic violence which the Courts have always wanted to denounce and deterrsquo

19 The Tribunal considered that Dr Mukherjeersquos behaviour demonstrated sustained misconduct in the context of a domestic relationship over a period of months in 2013 The Tribunal has taken into account that Dr Mukherjeersquos offences were against a female and it was mindful that he works in obstetrics and gynaecology his primary patients being female 20 The Tribunal next considered Dr Mukherjeersquos failure to notify the GMC of his conviction without delay The Tribunal noted paragraph 75 as stated above and paragraph 3 of GMP Paragraph 3 states

lsquo3 Good medical practice describes what is expected of all doctors registered with the General Medical Council (GMC) It is your responsibility to be familiar with Good medical practice and the explanatory guidancedagger which supports it and to follow the guidance they containrsquo

21 The Tribunal is of the opinion that from 2013 onwards Dr Mukherjee had the opportunity to inform the GMC of the Canadian Police investigation and he must have realised at some time that he had a duty to do so especially following his conviction and sentence in 2015 The Tribunal determined that Dr Mukherjeersquos conduct demonstrated flagrant breaches of the principles in paragraphs 3 and 75 of GMP in that he failed to report his conviction to the GMC over an extended period when he should have known had a duty to do so

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 14

22 The Tribunal considered that Dr Mukherjeersquos conduct represented a significant departure from the expected standards of conduct and behaviour of a doctor as set out in paragraphs 1 3 and 75 of GMP 23 The Tribunal concluded that Dr Mukherjeersquos conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct Determination by a Regulatory Body 24 In considering whether Dr Mukherjeersquos fitness to practise is impaired by the determination by another regulatory body in this case the Tribunal has regard to section 35C(2) of the Medical Act which states

lsquoA personrsquos fitness to practise shall be regarded as ldquoimpairedrdquo for the purposes of this Act by reason only of ndash hellip

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired or a determination by a regulatory body elsewhere to the same effectrsquo

25 Section 35C(3) provides that an allegation may be based on a matter that is alleged to have occurred outside the United Kingdom 26 Section 35(C)(9) provides

lsquohelliprdquoregulatory bodyrdquo means a regulatory body which has the function of authorising persons to practise as a member of health or social care professionhelliprsquo

27 The Tribunal was satisfied that on 4 March 2019 the College of Physicians and Surgeons of Ontario (CPOS) in Canada made a determination against Dr Mukherjee and imposed a suspension for a period of six months Impairment 28 The Tribunal having found that the facts proved in relation to paragraphs 1 and 2 of the Allegation amounted to misconduct went on to consider whether as a result of that misconduct Dr Mukherjeersquos fitness to practise is currently impaired The Tribunal also considered whether the regulatory determination as found proved in paragraph 3 of the Allegation impaired his current fitness to practise

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 15

29 The Tribunal took account of Dr Mukherjeersquos personal remediation in relation to his convictions It noted that as part of his sentencing Dr Mukherjee completed a course on domestic violence Dr Mukherjee has also completed the courses lsquoPartner Assault Response Program aka Living Without Violencersquo and lsquoUnderstanding Boundariesrsquo XXX 30 Dr Mukherjee also worked with a workplace mentor at the Hospital on a monthly basis to discuss and review his conduct and interpersonal performance in the workplace 31 The Tribunal took account of Dr Mukherjeersquos statement in his email dated 4 August 2019 which states

lsquoI had submitted detailed statements to the IOT in April 2018 amp March 2019 pertaining to this single isolated incident related to personal domestic issue NOT involving any patients which started as a workplace affair starting in February 2012 terminating in Jan 2014 relationship was toxic and deteriorated as the time progressed leaving permanent ramifications affecting my career family self respect and my self confidence I am most remorseful repentant apologetic and ashamed of my behaviour and over these long period of six years I have worked in a constructive way with self analysis projected learning and reevaluation of various aspects of my life in a positive way Attending and successfully completing courses inclusive of the 1Boundaries Course at the Western University in London Ontario 2 Partner Assault Program which lasted for a period of 10 weeks 3[XXX] as were recommended by the Honble Court and by the CPSO I am also planning to attend Anger Management Course in Ottawa starting October 2019 this has been arranged by CMPA with consent and approval from CPSO In addition as recommended by the Hospital authorities XXX also confirmed that I was safe was allowed to continue with full clinical practice administrative responsibility as the Chief of Obstetrics amp Gynaecolgy and academic responsibility as Clinical Lecturer with the Ottawa Universityrsquo

32 The Tribunal noted that within a month of the CPSO determination on the 4 March 2019 (which included a six monthsrsquo suspension from practising in Canada) Dr Mukherjee started a job as a doctor in the UK on 10 April 2019 although it also noted that the GMC has not brought any allegation in relation to this 33 The Tribunal has not been made aware of any other disciplinary findings against Dr Mukherjee The Tribunal acknowledges that whilst Dr Mukherjee has made

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 16

expressions of remorse and sorrow which were directed towards the impact on himself his family and career he appears to lack sufficient insight into the impact on the complainant 34 The Tribunal considered that Dr Mukherjee has remediated his personal failings to a significant extent Nevertheless the Tribunal found that even though Dr Mukherjee has developed some insight and remediated his personal misconduct a finding of impairment is necessary in order to uphold proper standards and maintain public confidence in the profession consistent with the overarching objective The Tribunal was mindful that doctors occupy a position of privilege and trust and are expected to act in a manner which maintains public confidence in them and in the medical profession and to uphold proper standards of conduct 35 The Tribunal is in no doubt that public confidence in the medical profession and the need to uphold proper standards for that profession would be adversely affected if it were not to make a finding of impairment in this case The Tribunal has therefore determined that Dr Mukherjeersquos fitness to practise is currently impaired by reason of misconduct and the determination by an overseas regulator Determination on Sanction - 18032020 1 Having determined that Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by an overseas body the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction if any to impose Submissions 2 On behalf of the GMC Ms Jones reminded the Tribunal that the offences for which Dr Mukherjee received a conditional discharge were serious She acknowledged that the offences occurred some time ago in 2013 and there have been no further incidents She also acknowledged that Dr Mukherjee has remediated his misconduct and has expressed remorse at his behaviour 3 Ms Jones submitted that a sanction of suspension is appropriate in this case She referred the Tribunal to Sanctions Guidance (November 2019) (the SG) 4 Ms Jones acknowledged that Dr Mukherjee has developing insight and that there had been a passage of time since Dr Mukherjeersquos offences occurred In relation to remediation Ms Jones referred the Tribunal to paragraph 31 which states

rsquo31 Remediation is where a doctor addresses concerns about their knowledge skills conduct or behaviour Remediation can take a number of

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 17

forms including coaching mentoring training and rehabilitation (this list is not exhaustive) and where fully successful will make impairment unlikelyrsquo

5 In relation to insight Ms Jones referred the Tribunal to paragraphs 45 and 46 of the SG which state

rsquo45 Expressing insight involves demonstrating reflection and remediation 46 A doctor is likely to have insight if they

a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31ndash33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearingrsquo

6 Ms Jones referred the Tribunal to paragraph 56d of the SG which states rsquo56 Tribunals are also likely to take more serious action where certain conduct arises in a doctorrsquos personal life such as (this list is not exhaustive) hellip

d misconduct involving violence or offences of a sexual nature (see paragraphs 149ndash150) helliprsquo

7 Ms Jones reminded the Tribunal that Dr Mukherjeersquos behaviour amounted to domestic violence and the text messages he sent to the complainant were somewhat sinister She submitted that this case is too serious for the Tribunal to take no action or to impose conditions on Dr Mukherjeersquos registration Ms Jones further submitted that Dr Mukherjeersquos misconduct including his failure to inform the GMC of his conviction was so serious that it calls for a period of suspension She referred the Tribunal to paragraph 92 of the SG which states

lsquo92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)rsquo

8 Ms Jones submitted that the GMC consider that Dr Mukherjeersquos misconduct is very serious but falls short of incompatibility with continued registration She accepted that

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 6: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

Record of Determinations ndash

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MPT Dr MUKHERJEE 6

bull DBS certificate dated 12 September 2019 bull XXX bull Canadian Criminal Record Check undated

bull Email from CPSO to Dr Mukherjee dated 12 December 2019 bull Extract from CPSO website confirming no restrictions dated 26 December

2019 bull Patient reviews from ratemdscom and ontariodoctordirectyca dated from

2012 to 2019 The Tribunalrsquos Approach 15 In reaching its decision on facts the Tribunal has borne in mind that the burden of proof rests on the GMC and it is for the GMC to prove the Allegation Dr Mukherjee does not need to prove anything The standard of proof is that applicable to civil proceedings namely the balance of probabilities ie whether it is more likely than not that the events occurred The Tribunalrsquos Analysis of the Evidence and Findings 16 The Tribunal has considered each paragraph of the Allegation separately and has evaluated the evidence in order to make its findings on the facts Paragraph 1 17 The Tribunal has noted the reasons for the judgement against Dr Mukherjee from Justice Robert Selkirk of the Ontario Court of Justice dated 12 January 2015 It has also taken account of the transcript from sentencing hearing dated 23 February 2015 18 The Tribunal noted Dr Mukherjeersquos email to the GMC dated 10 January 2020 in which he confirmed the allegations of two counts of mischief pursuant to section 430(4) and one count of uttering threats pursuant to section 2641(1)(a) In this email Dr Mukherjee stated that he was not lsquoconvictedrsquo of any criminal offence but was given a lsquoconditional dischargersquo He accepted however that he was found guilty of the offences in his email to the GMC dated 15 March 2019 19 Given the documentary evidence and Dr Mukherjeersquos own confirmation in his email the Tribunal was satisfied that on 23 February 2015 at Ontario Court of Justice he was made the subject of an order for a conditional discharge in relation to two counts of mischief and one count of uttering threats to cause death or bodily harm having been found guilty of those offences 20 Accordingly the Tribunal found paragraph 1 proved

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 7

Paragraph 2 21 The Tribunal first considered whether or not Dr Mukherjee was under a duty to inform the GMC firstly that he had been found guilty of the criminal offences detailed in paragraph 1 and secondly that he had been conditionally discharged in relation to the criminal offences 22 The Tribunal took account of paragraph 75 in the GMCrsquos guidance Good Medical Practice (The GMP) which states

lsquo75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence

c another professional body has made a finding against your registration as a result of fitness to practise procedures

23 The Tribunal noted that Dr Mukherjee has been registered with the GMC since 25 June 1999 and continued to be registered whilst he was working in Canada 24 The Tribunal was satisfied that as Dr Mukherjee was registered with the GMC he had a duty under GMP to inform the GMC that he had been found guilty of criminal offences and received a conditional discharge for those offences 25 The Tribunal took account of Mr Arsquos witness statement in which he confirmed that all communication including all documents telephone notes emails and letters between the GMC and the doctor are recorded in electronic form on a database called Siebel Mr A confirmed from reviewing Dr Mukherjeersquos history on Siebel that there is no record of the GMC receiving notification from Dr Mukherjee or a third party that he had been found guilty of the criminal offences and received a conditional discharge for those offences 26 The Tribunal noted Dr Mukherjeersquos statement in his email to the GMC dated 10 January 2020

lsquoI take FULL RESPONSIBILITY for FAILING to notify GMC with regards to events and criminal charges which occurred in January 2014 this omission was unintentional I was not aware about this stipulation in paragraph 75 of GMP I have been Registered without License to practice since 2007 with yearly renewal of Registration during the process of renewal no questions are asked about any charges or change of circumstances If I knew about this stipulation I would most certainly informed GMC without delayrsquo

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 8

27 The Tribunal was satisfied that Dr Mukherjee failed to notify the GMC of the criminal offences and the conditional discharge 28 Accordingly the Tribunal found paragraph 2 proved Paragraph 3 29 The Tribunal has taken account of the CPSO Record of Practise restrictions It has also taken account of the email to the GMC dated 7 March 2019 containing the lsquoNotice of Suspension and Terms Conditions and Limitations on the Certificate of Registrationrsquo from the College of Physicians and Surgeons of Ontario which states

lsquoOn March 4 2019 the Discipline Committee ordered and directed that 1 Dr Mukherjee attend before the panel to be reprimanded 2 The Registrar suspend Dr Mukherjees certificate of registration for a period of six (6) months commencing immediately Dr Mukherjee shall comply with the College Policy 2-07 Practice Management Considerations for Physicians Who Cease to Practise Take an Extended Leave of Absence or Close Their Practice Due to Relocation a copy of which forms Schedule A to this Order 3 The Registrar place the following terms conditions and limitations on Dr Mukherjees certificate of registration

a Dr Mukherjee will at his own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than twelve (12) months from the date of this Order

4 Dr Mukherjee pay costs to the College in the amount of $600000 within 30 days of the date of this Orderrsquo

30 The Tribunal noted that Dr Mukherjee accepted in his emails dated 15 March 2019 and 4 August 2019 that he was subject to the regulatory determination and sanction 31 The Tribunal was satisfied having seen the determination from the CPSO dated 4 March 2019 that it was issued to Dr Mukherjee 32 Accordingly the Tribunal found paragraph 3 proved

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 9

The Tribunalrsquos Overall Determination on the Facts 33 The Tribunal has determined the facts as follows

lsquo1 On 23 May February 2015 at Ontario Court of Justice you were made the subject of an order for conditional discharge for a period of 12 months in respect of offences under the Criminal Code of Canada consisting ofrsquo

a mischief (two counts) pursuant to section 430(4) Determined and found proved b uttering threats to cause death or bodily harm pursuant to section 2641 (1)(a) Determined and found proved

2 You failed to notify the GMC without delay that you had been a found guilty of the criminal offences detailed in paragraph 1 Determined and found proved b conditionally discharged of the criminal offences detailed in paragraph 1 Determined and found proved

3 On 4 March 2019 The College of Physicians and Surgeons of Ontario a determined you had committed an act of professional misconduct in that you had been found guilty of an offence that is relevant to your suitability to practise and you had engaged in an act or omission relevant to the practice of medicine that having regard to all the circumstances would reasonably be regarded by members as disgraceful dishonourable or unprofessional Determined and found proved

b directed you attend before the panel to be reprimanded Determined and found proved

c suspended your certificate of registration for a period of six months commencing immediately Determined and found proved

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 10

d ordered you to at your own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than 12 months from the date of the Order Determined and found proved

Determination on Impairment - 17032020 1 The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether on the basis of the facts which it has found proved as set out before Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by another regulator The Evidence 2 The Tribunal has taken into account all the evidence received during the facts stage of the hearing both oral and documentary In addition the Tribunal also received a report from Dr E Dr Mukherjeersquos Responsible Officer dated 6 January 2020 Submissions 3 On behalf of the GMC Ms Jones reminded the Tribunal of the two stage test it must apply in relation to misconduct Ms Jones referred the Tribunal to the case of Cheatle v GMC (2009) EWHC 645 (Admin) in relation to the approach to be taken to findings of misconduct and impairment She submitted the misconduct amounts to serious misconduct Dr Mukherjee was convicted by an overseas court of two offences of mischief which would have been charged in this country as criminal damage and also a charge of threats to cause death or bodily harm sent to the complainant She stated that this was a series of offences that occurred over a few months in the context of a dysfunctional relationship which involved intimidation She stated it was an abusive relationship albeit that it was not all one way She submitted that Dr Mukherjeersquos behaviour amounted to serious professional misconduct She submitted that Dr Mukherjee failed to notify the GMC of the criminal offences for two years Ms Jones reminded the Tribunal that it is the registrantrsquos obligation to inform the regulator of any criminal proceedings She submitted that Dr Mukherjeersquos explanation that he did not appreciate it was his duty was unsatisfactory 4 Ms Jones referred the Tribunal to paragraphs 1 and 75 of the GMCrsquos guidance Good Medical Practice (GMP) which state

lsquo1 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

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 11

75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence c another professional body has made a finding against your registration as a result of fitness to practise proceduresrsquo

5 Ms Jones submitted that the offences could be categorised as domestic abuse and any involvement by a doctor is very serious indeed She submitted that should the tribunal find misconduct proved it should consider whether Dr Mukherjeersquos fitness to practise is impaired

6 Ms Jones referred the Tribunal to the comprehensive approach in determining impairment formulated by Dame Janet Smith in her Fifth Report on the Shipman Inquiry which states

lsquoDo our findings of fact in respect of the doctors misconduct deficient professional performance adverse health conviction caution or determination show that hisher fitness to practise is impaired in the sense that she

a has in the past acted andor is liable in the future to act so as to put a patient or patients at unwarranted risk of harm andor

b has in the past brought andor is liable in the future to bring the medical profession into disrepute andor

c has in the past breached andor is liable in the future to breach one of the fundamental tenets of the medical profession andor

d has in the past acted dishonestly andor is liable to act dishonestly in the futurersquo

7 Ms Jones conceded that Dr Mukherjeersquos actions have not put patients at risk She submitted that Dr Mukherjeersquos actions have brought the profession into disrepute and that limb b is clearly made out She submitted that it is for the Tribunal to determine whether Dr Mukherjee has breached one of the fundamental tenets of the profession She submitted that Dr Mukherjeersquos behaviour which included his failure to inform the GMC and the finding of the overseas regulator amounted to such a breach 8 She accepted that Dr Mukherjee has demonstrated remediation and remorse but invited the Tribunal to have regard to the nature of the misconduct and breaches of GMP and the seriousness of the misconduct She referred the Tribunal to the principle in

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 12

the case of Chaudhary v GMC 2017 EWHC 2561 (Admin) in relation to the need to give sufficient weight to the overarching objective which includes the wider public interest 9 Ms Jones referred the Tribunal to the case of Grant v NMC 2011 EWCH92 (Admin) and the need to uphold proper standards and confidence in the profession She accepted that the case law requires the Tribunal to look at impairment today but it is also required to have regard to the seriousness of the misconduct given the facts found proved She submitted that this is the type of case where notwithstanding Dr Mukherjeersquos personal remediation a finding of impairment is appropriate on public interest grounds 10 Ms Jones submitted that the Tribunal must consider the public interest regarding Dr Mukherjeersquos serious misconduct his failure to report his conviction and the determination by the overseas regulator and therefore a finding of impairment is imperative The Relevant Legal Principles 11 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 Tribunalrsquos judgement alone 12 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 and then whether the finding of that misconduct which was serious could lead to a finding of impairment 13 The Tribunal must determine whether Dr Mukherjeersquos fitness to practise is impaired today taking into account his 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 It was also mindful of the overarching objective as set out in Section 1(A) of the Medical Act and the importance of promoting and maintaining public confidence in the profession and proper standards of conduct 14 The Tribunal also took account of the case of Remedy UK Ltd v GMC (2010) EWHC 1245 (Admin) which described misconduct of two principal kinds

a sufficiently serious misconduct in the exercise of professional practice such that it can be properly described as misconduct going to fitness to practise b conduct of a morally culpable or otherwise disgraceful kind which may and often will occur outwith the course of professional practice itself but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 13

The Tribunalrsquos Determination on Impairment Misconduct 15 The Tribunal took account of paragraphs 1 and 75 in GMP as stated above 16 The Tribunal noted that Dr Mukherjee was convicted of two counts of mischief and one count of uttering threats The Tribunal considered the behaviour which led to Dr Mukherjeersquos conviction in that his offences occurred in the context of a dysfunctional relationship and included threats of violence against the complainant The Tribunal noted that in his email dated 15 March 2015 Dr Mukherjee accepted that the relationship with the complainant was toxic 17 The Tribunal is in agreement with the College of Physicians and Surgeons of Ontario (the CPSO) determination that Dr Mukherjee demonstrated disgraceful and outrageous behaviour 18 The Tribunal also noted the comments from Justice Robert G Selkirk who stated in his sentencing remarks

lsquo hellipit is fair to describe these events as acts of domestic violence which the Courts have always wanted to denounce and deterrsquo

19 The Tribunal considered that Dr Mukherjeersquos behaviour demonstrated sustained misconduct in the context of a domestic relationship over a period of months in 2013 The Tribunal has taken into account that Dr Mukherjeersquos offences were against a female and it was mindful that he works in obstetrics and gynaecology his primary patients being female 20 The Tribunal next considered Dr Mukherjeersquos failure to notify the GMC of his conviction without delay The Tribunal noted paragraph 75 as stated above and paragraph 3 of GMP Paragraph 3 states

lsquo3 Good medical practice describes what is expected of all doctors registered with the General Medical Council (GMC) It is your responsibility to be familiar with Good medical practice and the explanatory guidancedagger which supports it and to follow the guidance they containrsquo

21 The Tribunal is of the opinion that from 2013 onwards Dr Mukherjee had the opportunity to inform the GMC of the Canadian Police investigation and he must have realised at some time that he had a duty to do so especially following his conviction and sentence in 2015 The Tribunal determined that Dr Mukherjeersquos conduct demonstrated flagrant breaches of the principles in paragraphs 3 and 75 of GMP in that he failed to report his conviction to the GMC over an extended period when he should have known had a duty to do so

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MPT Dr MUKHERJEE 14

22 The Tribunal considered that Dr Mukherjeersquos conduct represented a significant departure from the expected standards of conduct and behaviour of a doctor as set out in paragraphs 1 3 and 75 of GMP 23 The Tribunal concluded that Dr Mukherjeersquos conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct Determination by a Regulatory Body 24 In considering whether Dr Mukherjeersquos fitness to practise is impaired by the determination by another regulatory body in this case the Tribunal has regard to section 35C(2) of the Medical Act which states

lsquoA personrsquos fitness to practise shall be regarded as ldquoimpairedrdquo for the purposes of this Act by reason only of ndash hellip

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired or a determination by a regulatory body elsewhere to the same effectrsquo

25 Section 35C(3) provides that an allegation may be based on a matter that is alleged to have occurred outside the United Kingdom 26 Section 35(C)(9) provides

lsquohelliprdquoregulatory bodyrdquo means a regulatory body which has the function of authorising persons to practise as a member of health or social care professionhelliprsquo

27 The Tribunal was satisfied that on 4 March 2019 the College of Physicians and Surgeons of Ontario (CPOS) in Canada made a determination against Dr Mukherjee and imposed a suspension for a period of six months Impairment 28 The Tribunal having found that the facts proved in relation to paragraphs 1 and 2 of the Allegation amounted to misconduct went on to consider whether as a result of that misconduct Dr Mukherjeersquos fitness to practise is currently impaired The Tribunal also considered whether the regulatory determination as found proved in paragraph 3 of the Allegation impaired his current fitness to practise

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 15

29 The Tribunal took account of Dr Mukherjeersquos personal remediation in relation to his convictions It noted that as part of his sentencing Dr Mukherjee completed a course on domestic violence Dr Mukherjee has also completed the courses lsquoPartner Assault Response Program aka Living Without Violencersquo and lsquoUnderstanding Boundariesrsquo XXX 30 Dr Mukherjee also worked with a workplace mentor at the Hospital on a monthly basis to discuss and review his conduct and interpersonal performance in the workplace 31 The Tribunal took account of Dr Mukherjeersquos statement in his email dated 4 August 2019 which states

lsquoI had submitted detailed statements to the IOT in April 2018 amp March 2019 pertaining to this single isolated incident related to personal domestic issue NOT involving any patients which started as a workplace affair starting in February 2012 terminating in Jan 2014 relationship was toxic and deteriorated as the time progressed leaving permanent ramifications affecting my career family self respect and my self confidence I am most remorseful repentant apologetic and ashamed of my behaviour and over these long period of six years I have worked in a constructive way with self analysis projected learning and reevaluation of various aspects of my life in a positive way Attending and successfully completing courses inclusive of the 1Boundaries Course at the Western University in London Ontario 2 Partner Assault Program which lasted for a period of 10 weeks 3[XXX] as were recommended by the Honble Court and by the CPSO I am also planning to attend Anger Management Course in Ottawa starting October 2019 this has been arranged by CMPA with consent and approval from CPSO In addition as recommended by the Hospital authorities XXX also confirmed that I was safe was allowed to continue with full clinical practice administrative responsibility as the Chief of Obstetrics amp Gynaecolgy and academic responsibility as Clinical Lecturer with the Ottawa Universityrsquo

32 The Tribunal noted that within a month of the CPSO determination on the 4 March 2019 (which included a six monthsrsquo suspension from practising in Canada) Dr Mukherjee started a job as a doctor in the UK on 10 April 2019 although it also noted that the GMC has not brought any allegation in relation to this 33 The Tribunal has not been made aware of any other disciplinary findings against Dr Mukherjee The Tribunal acknowledges that whilst Dr Mukherjee has made

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 16

expressions of remorse and sorrow which were directed towards the impact on himself his family and career he appears to lack sufficient insight into the impact on the complainant 34 The Tribunal considered that Dr Mukherjee has remediated his personal failings to a significant extent Nevertheless the Tribunal found that even though Dr Mukherjee has developed some insight and remediated his personal misconduct a finding of impairment is necessary in order to uphold proper standards and maintain public confidence in the profession consistent with the overarching objective The Tribunal was mindful that doctors occupy a position of privilege and trust and are expected to act in a manner which maintains public confidence in them and in the medical profession and to uphold proper standards of conduct 35 The Tribunal is in no doubt that public confidence in the medical profession and the need to uphold proper standards for that profession would be adversely affected if it were not to make a finding of impairment in this case The Tribunal has therefore determined that Dr Mukherjeersquos fitness to practise is currently impaired by reason of misconduct and the determination by an overseas regulator Determination on Sanction - 18032020 1 Having determined that Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by an overseas body the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction if any to impose Submissions 2 On behalf of the GMC Ms Jones reminded the Tribunal that the offences for which Dr Mukherjee received a conditional discharge were serious She acknowledged that the offences occurred some time ago in 2013 and there have been no further incidents She also acknowledged that Dr Mukherjee has remediated his misconduct and has expressed remorse at his behaviour 3 Ms Jones submitted that a sanction of suspension is appropriate in this case She referred the Tribunal to Sanctions Guidance (November 2019) (the SG) 4 Ms Jones acknowledged that Dr Mukherjee has developing insight and that there had been a passage of time since Dr Mukherjeersquos offences occurred In relation to remediation Ms Jones referred the Tribunal to paragraph 31 which states

rsquo31 Remediation is where a doctor addresses concerns about their knowledge skills conduct or behaviour Remediation can take a number of

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 17

forms including coaching mentoring training and rehabilitation (this list is not exhaustive) and where fully successful will make impairment unlikelyrsquo

5 In relation to insight Ms Jones referred the Tribunal to paragraphs 45 and 46 of the SG which state

rsquo45 Expressing insight involves demonstrating reflection and remediation 46 A doctor is likely to have insight if they

a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31ndash33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearingrsquo

6 Ms Jones referred the Tribunal to paragraph 56d of the SG which states rsquo56 Tribunals are also likely to take more serious action where certain conduct arises in a doctorrsquos personal life such as (this list is not exhaustive) hellip

d misconduct involving violence or offences of a sexual nature (see paragraphs 149ndash150) helliprsquo

7 Ms Jones reminded the Tribunal that Dr Mukherjeersquos behaviour amounted to domestic violence and the text messages he sent to the complainant were somewhat sinister She submitted that this case is too serious for the Tribunal to take no action or to impose conditions on Dr Mukherjeersquos registration Ms Jones further submitted that Dr Mukherjeersquos misconduct including his failure to inform the GMC of his conviction was so serious that it calls for a period of suspension She referred the Tribunal to paragraph 92 of the SG which states

lsquo92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)rsquo

8 Ms Jones submitted that the GMC consider that Dr Mukherjeersquos misconduct is very serious but falls short of incompatibility with continued registration She accepted that

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 7: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

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MPT Dr MUKHERJEE 7

Paragraph 2 21 The Tribunal first considered whether or not Dr Mukherjee was under a duty to inform the GMC firstly that he had been found guilty of the criminal offences detailed in paragraph 1 and secondly that he had been conditionally discharged in relation to the criminal offences 22 The Tribunal took account of paragraph 75 in the GMCrsquos guidance Good Medical Practice (The GMP) which states

lsquo75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence

c another professional body has made a finding against your registration as a result of fitness to practise procedures

23 The Tribunal noted that Dr Mukherjee has been registered with the GMC since 25 June 1999 and continued to be registered whilst he was working in Canada 24 The Tribunal was satisfied that as Dr Mukherjee was registered with the GMC he had a duty under GMP to inform the GMC that he had been found guilty of criminal offences and received a conditional discharge for those offences 25 The Tribunal took account of Mr Arsquos witness statement in which he confirmed that all communication including all documents telephone notes emails and letters between the GMC and the doctor are recorded in electronic form on a database called Siebel Mr A confirmed from reviewing Dr Mukherjeersquos history on Siebel that there is no record of the GMC receiving notification from Dr Mukherjee or a third party that he had been found guilty of the criminal offences and received a conditional discharge for those offences 26 The Tribunal noted Dr Mukherjeersquos statement in his email to the GMC dated 10 January 2020

lsquoI take FULL RESPONSIBILITY for FAILING to notify GMC with regards to events and criminal charges which occurred in January 2014 this omission was unintentional I was not aware about this stipulation in paragraph 75 of GMP I have been Registered without License to practice since 2007 with yearly renewal of Registration during the process of renewal no questions are asked about any charges or change of circumstances If I knew about this stipulation I would most certainly informed GMC without delayrsquo

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MPT Dr MUKHERJEE 8

27 The Tribunal was satisfied that Dr Mukherjee failed to notify the GMC of the criminal offences and the conditional discharge 28 Accordingly the Tribunal found paragraph 2 proved Paragraph 3 29 The Tribunal has taken account of the CPSO Record of Practise restrictions It has also taken account of the email to the GMC dated 7 March 2019 containing the lsquoNotice of Suspension and Terms Conditions and Limitations on the Certificate of Registrationrsquo from the College of Physicians and Surgeons of Ontario which states

lsquoOn March 4 2019 the Discipline Committee ordered and directed that 1 Dr Mukherjee attend before the panel to be reprimanded 2 The Registrar suspend Dr Mukherjees certificate of registration for a period of six (6) months commencing immediately Dr Mukherjee shall comply with the College Policy 2-07 Practice Management Considerations for Physicians Who Cease to Practise Take an Extended Leave of Absence or Close Their Practice Due to Relocation a copy of which forms Schedule A to this Order 3 The Registrar place the following terms conditions and limitations on Dr Mukherjees certificate of registration

a Dr Mukherjee will at his own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than twelve (12) months from the date of this Order

4 Dr Mukherjee pay costs to the College in the amount of $600000 within 30 days of the date of this Orderrsquo

30 The Tribunal noted that Dr Mukherjee accepted in his emails dated 15 March 2019 and 4 August 2019 that he was subject to the regulatory determination and sanction 31 The Tribunal was satisfied having seen the determination from the CPSO dated 4 March 2019 that it was issued to Dr Mukherjee 32 Accordingly the Tribunal found paragraph 3 proved

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 9

The Tribunalrsquos Overall Determination on the Facts 33 The Tribunal has determined the facts as follows

lsquo1 On 23 May February 2015 at Ontario Court of Justice you were made the subject of an order for conditional discharge for a period of 12 months in respect of offences under the Criminal Code of Canada consisting ofrsquo

a mischief (two counts) pursuant to section 430(4) Determined and found proved b uttering threats to cause death or bodily harm pursuant to section 2641 (1)(a) Determined and found proved

2 You failed to notify the GMC without delay that you had been a found guilty of the criminal offences detailed in paragraph 1 Determined and found proved b conditionally discharged of the criminal offences detailed in paragraph 1 Determined and found proved

3 On 4 March 2019 The College of Physicians and Surgeons of Ontario a determined you had committed an act of professional misconduct in that you had been found guilty of an offence that is relevant to your suitability to practise and you had engaged in an act or omission relevant to the practice of medicine that having regard to all the circumstances would reasonably be regarded by members as disgraceful dishonourable or unprofessional Determined and found proved

b directed you attend before the panel to be reprimanded Determined and found proved

c suspended your certificate of registration for a period of six months commencing immediately Determined and found proved

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 10

d ordered you to at your own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than 12 months from the date of the Order Determined and found proved

Determination on Impairment - 17032020 1 The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether on the basis of the facts which it has found proved as set out before Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by another regulator The Evidence 2 The Tribunal has taken into account all the evidence received during the facts stage of the hearing both oral and documentary In addition the Tribunal also received a report from Dr E Dr Mukherjeersquos Responsible Officer dated 6 January 2020 Submissions 3 On behalf of the GMC Ms Jones reminded the Tribunal of the two stage test it must apply in relation to misconduct Ms Jones referred the Tribunal to the case of Cheatle v GMC (2009) EWHC 645 (Admin) in relation to the approach to be taken to findings of misconduct and impairment She submitted the misconduct amounts to serious misconduct Dr Mukherjee was convicted by an overseas court of two offences of mischief which would have been charged in this country as criminal damage and also a charge of threats to cause death or bodily harm sent to the complainant She stated that this was a series of offences that occurred over a few months in the context of a dysfunctional relationship which involved intimidation She stated it was an abusive relationship albeit that it was not all one way She submitted that Dr Mukherjeersquos behaviour amounted to serious professional misconduct She submitted that Dr Mukherjee failed to notify the GMC of the criminal offences for two years Ms Jones reminded the Tribunal that it is the registrantrsquos obligation to inform the regulator of any criminal proceedings She submitted that Dr Mukherjeersquos explanation that he did not appreciate it was his duty was unsatisfactory 4 Ms Jones referred the Tribunal to paragraphs 1 and 75 of the GMCrsquos guidance Good Medical Practice (GMP) which state

lsquo1 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

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 11

75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence c another professional body has made a finding against your registration as a result of fitness to practise proceduresrsquo

5 Ms Jones submitted that the offences could be categorised as domestic abuse and any involvement by a doctor is very serious indeed She submitted that should the tribunal find misconduct proved it should consider whether Dr Mukherjeersquos fitness to practise is impaired

6 Ms Jones referred the Tribunal to the comprehensive approach in determining impairment formulated by Dame Janet Smith in her Fifth Report on the Shipman Inquiry which states

lsquoDo our findings of fact in respect of the doctors misconduct deficient professional performance adverse health conviction caution or determination show that hisher fitness to practise is impaired in the sense that she

a has in the past acted andor is liable in the future to act so as to put a patient or patients at unwarranted risk of harm andor

b has in the past brought andor is liable in the future to bring the medical profession into disrepute andor

c has in the past breached andor is liable in the future to breach one of the fundamental tenets of the medical profession andor

d has in the past acted dishonestly andor is liable to act dishonestly in the futurersquo

7 Ms Jones conceded that Dr Mukherjeersquos actions have not put patients at risk She submitted that Dr Mukherjeersquos actions have brought the profession into disrepute and that limb b is clearly made out She submitted that it is for the Tribunal to determine whether Dr Mukherjee has breached one of the fundamental tenets of the profession She submitted that Dr Mukherjeersquos behaviour which included his failure to inform the GMC and the finding of the overseas regulator amounted to such a breach 8 She accepted that Dr Mukherjee has demonstrated remediation and remorse but invited the Tribunal to have regard to the nature of the misconduct and breaches of GMP and the seriousness of the misconduct She referred the Tribunal to the principle in

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 12

the case of Chaudhary v GMC 2017 EWHC 2561 (Admin) in relation to the need to give sufficient weight to the overarching objective which includes the wider public interest 9 Ms Jones referred the Tribunal to the case of Grant v NMC 2011 EWCH92 (Admin) and the need to uphold proper standards and confidence in the profession She accepted that the case law requires the Tribunal to look at impairment today but it is also required to have regard to the seriousness of the misconduct given the facts found proved She submitted that this is the type of case where notwithstanding Dr Mukherjeersquos personal remediation a finding of impairment is appropriate on public interest grounds 10 Ms Jones submitted that the Tribunal must consider the public interest regarding Dr Mukherjeersquos serious misconduct his failure to report his conviction and the determination by the overseas regulator and therefore a finding of impairment is imperative The Relevant Legal Principles 11 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 Tribunalrsquos judgement alone 12 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 and then whether the finding of that misconduct which was serious could lead to a finding of impairment 13 The Tribunal must determine whether Dr Mukherjeersquos fitness to practise is impaired today taking into account his 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 It was also mindful of the overarching objective as set out in Section 1(A) of the Medical Act and the importance of promoting and maintaining public confidence in the profession and proper standards of conduct 14 The Tribunal also took account of the case of Remedy UK Ltd v GMC (2010) EWHC 1245 (Admin) which described misconduct of two principal kinds

a sufficiently serious misconduct in the exercise of professional practice such that it can be properly described as misconduct going to fitness to practise b conduct of a morally culpable or otherwise disgraceful kind which may and often will occur outwith the course of professional practice itself but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 13

The Tribunalrsquos Determination on Impairment Misconduct 15 The Tribunal took account of paragraphs 1 and 75 in GMP as stated above 16 The Tribunal noted that Dr Mukherjee was convicted of two counts of mischief and one count of uttering threats The Tribunal considered the behaviour which led to Dr Mukherjeersquos conviction in that his offences occurred in the context of a dysfunctional relationship and included threats of violence against the complainant The Tribunal noted that in his email dated 15 March 2015 Dr Mukherjee accepted that the relationship with the complainant was toxic 17 The Tribunal is in agreement with the College of Physicians and Surgeons of Ontario (the CPSO) determination that Dr Mukherjee demonstrated disgraceful and outrageous behaviour 18 The Tribunal also noted the comments from Justice Robert G Selkirk who stated in his sentencing remarks

lsquo hellipit is fair to describe these events as acts of domestic violence which the Courts have always wanted to denounce and deterrsquo

19 The Tribunal considered that Dr Mukherjeersquos behaviour demonstrated sustained misconduct in the context of a domestic relationship over a period of months in 2013 The Tribunal has taken into account that Dr Mukherjeersquos offences were against a female and it was mindful that he works in obstetrics and gynaecology his primary patients being female 20 The Tribunal next considered Dr Mukherjeersquos failure to notify the GMC of his conviction without delay The Tribunal noted paragraph 75 as stated above and paragraph 3 of GMP Paragraph 3 states

lsquo3 Good medical practice describes what is expected of all doctors registered with the General Medical Council (GMC) It is your responsibility to be familiar with Good medical practice and the explanatory guidancedagger which supports it and to follow the guidance they containrsquo

21 The Tribunal is of the opinion that from 2013 onwards Dr Mukherjee had the opportunity to inform the GMC of the Canadian Police investigation and he must have realised at some time that he had a duty to do so especially following his conviction and sentence in 2015 The Tribunal determined that Dr Mukherjeersquos conduct demonstrated flagrant breaches of the principles in paragraphs 3 and 75 of GMP in that he failed to report his conviction to the GMC over an extended period when he should have known had a duty to do so

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 14

22 The Tribunal considered that Dr Mukherjeersquos conduct represented a significant departure from the expected standards of conduct and behaviour of a doctor as set out in paragraphs 1 3 and 75 of GMP 23 The Tribunal concluded that Dr Mukherjeersquos conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct Determination by a Regulatory Body 24 In considering whether Dr Mukherjeersquos fitness to practise is impaired by the determination by another regulatory body in this case the Tribunal has regard to section 35C(2) of the Medical Act which states

lsquoA personrsquos fitness to practise shall be regarded as ldquoimpairedrdquo for the purposes of this Act by reason only of ndash hellip

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired or a determination by a regulatory body elsewhere to the same effectrsquo

25 Section 35C(3) provides that an allegation may be based on a matter that is alleged to have occurred outside the United Kingdom 26 Section 35(C)(9) provides

lsquohelliprdquoregulatory bodyrdquo means a regulatory body which has the function of authorising persons to practise as a member of health or social care professionhelliprsquo

27 The Tribunal was satisfied that on 4 March 2019 the College of Physicians and Surgeons of Ontario (CPOS) in Canada made a determination against Dr Mukherjee and imposed a suspension for a period of six months Impairment 28 The Tribunal having found that the facts proved in relation to paragraphs 1 and 2 of the Allegation amounted to misconduct went on to consider whether as a result of that misconduct Dr Mukherjeersquos fitness to practise is currently impaired The Tribunal also considered whether the regulatory determination as found proved in paragraph 3 of the Allegation impaired his current fitness to practise

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 15

29 The Tribunal took account of Dr Mukherjeersquos personal remediation in relation to his convictions It noted that as part of his sentencing Dr Mukherjee completed a course on domestic violence Dr Mukherjee has also completed the courses lsquoPartner Assault Response Program aka Living Without Violencersquo and lsquoUnderstanding Boundariesrsquo XXX 30 Dr Mukherjee also worked with a workplace mentor at the Hospital on a monthly basis to discuss and review his conduct and interpersonal performance in the workplace 31 The Tribunal took account of Dr Mukherjeersquos statement in his email dated 4 August 2019 which states

lsquoI had submitted detailed statements to the IOT in April 2018 amp March 2019 pertaining to this single isolated incident related to personal domestic issue NOT involving any patients which started as a workplace affair starting in February 2012 terminating in Jan 2014 relationship was toxic and deteriorated as the time progressed leaving permanent ramifications affecting my career family self respect and my self confidence I am most remorseful repentant apologetic and ashamed of my behaviour and over these long period of six years I have worked in a constructive way with self analysis projected learning and reevaluation of various aspects of my life in a positive way Attending and successfully completing courses inclusive of the 1Boundaries Course at the Western University in London Ontario 2 Partner Assault Program which lasted for a period of 10 weeks 3[XXX] as were recommended by the Honble Court and by the CPSO I am also planning to attend Anger Management Course in Ottawa starting October 2019 this has been arranged by CMPA with consent and approval from CPSO In addition as recommended by the Hospital authorities XXX also confirmed that I was safe was allowed to continue with full clinical practice administrative responsibility as the Chief of Obstetrics amp Gynaecolgy and academic responsibility as Clinical Lecturer with the Ottawa Universityrsquo

32 The Tribunal noted that within a month of the CPSO determination on the 4 March 2019 (which included a six monthsrsquo suspension from practising in Canada) Dr Mukherjee started a job as a doctor in the UK on 10 April 2019 although it also noted that the GMC has not brought any allegation in relation to this 33 The Tribunal has not been made aware of any other disciplinary findings against Dr Mukherjee The Tribunal acknowledges that whilst Dr Mukherjee has made

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 16

expressions of remorse and sorrow which were directed towards the impact on himself his family and career he appears to lack sufficient insight into the impact on the complainant 34 The Tribunal considered that Dr Mukherjee has remediated his personal failings to a significant extent Nevertheless the Tribunal found that even though Dr Mukherjee has developed some insight and remediated his personal misconduct a finding of impairment is necessary in order to uphold proper standards and maintain public confidence in the profession consistent with the overarching objective The Tribunal was mindful that doctors occupy a position of privilege and trust and are expected to act in a manner which maintains public confidence in them and in the medical profession and to uphold proper standards of conduct 35 The Tribunal is in no doubt that public confidence in the medical profession and the need to uphold proper standards for that profession would be adversely affected if it were not to make a finding of impairment in this case The Tribunal has therefore determined that Dr Mukherjeersquos fitness to practise is currently impaired by reason of misconduct and the determination by an overseas regulator Determination on Sanction - 18032020 1 Having determined that Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by an overseas body the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction if any to impose Submissions 2 On behalf of the GMC Ms Jones reminded the Tribunal that the offences for which Dr Mukherjee received a conditional discharge were serious She acknowledged that the offences occurred some time ago in 2013 and there have been no further incidents She also acknowledged that Dr Mukherjee has remediated his misconduct and has expressed remorse at his behaviour 3 Ms Jones submitted that a sanction of suspension is appropriate in this case She referred the Tribunal to Sanctions Guidance (November 2019) (the SG) 4 Ms Jones acknowledged that Dr Mukherjee has developing insight and that there had been a passage of time since Dr Mukherjeersquos offences occurred In relation to remediation Ms Jones referred the Tribunal to paragraph 31 which states

rsquo31 Remediation is where a doctor addresses concerns about their knowledge skills conduct or behaviour Remediation can take a number of

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 17

forms including coaching mentoring training and rehabilitation (this list is not exhaustive) and where fully successful will make impairment unlikelyrsquo

5 In relation to insight Ms Jones referred the Tribunal to paragraphs 45 and 46 of the SG which state

rsquo45 Expressing insight involves demonstrating reflection and remediation 46 A doctor is likely to have insight if they

a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31ndash33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearingrsquo

6 Ms Jones referred the Tribunal to paragraph 56d of the SG which states rsquo56 Tribunals are also likely to take more serious action where certain conduct arises in a doctorrsquos personal life such as (this list is not exhaustive) hellip

d misconduct involving violence or offences of a sexual nature (see paragraphs 149ndash150) helliprsquo

7 Ms Jones reminded the Tribunal that Dr Mukherjeersquos behaviour amounted to domestic violence and the text messages he sent to the complainant were somewhat sinister She submitted that this case is too serious for the Tribunal to take no action or to impose conditions on Dr Mukherjeersquos registration Ms Jones further submitted that Dr Mukherjeersquos misconduct including his failure to inform the GMC of his conviction was so serious that it calls for a period of suspension She referred the Tribunal to paragraph 92 of the SG which states

lsquo92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)rsquo

8 Ms Jones submitted that the GMC consider that Dr Mukherjeersquos misconduct is very serious but falls short of incompatibility with continued registration She accepted that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 8: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

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MPT Dr MUKHERJEE 8

27 The Tribunal was satisfied that Dr Mukherjee failed to notify the GMC of the criminal offences and the conditional discharge 28 Accordingly the Tribunal found paragraph 2 proved Paragraph 3 29 The Tribunal has taken account of the CPSO Record of Practise restrictions It has also taken account of the email to the GMC dated 7 March 2019 containing the lsquoNotice of Suspension and Terms Conditions and Limitations on the Certificate of Registrationrsquo from the College of Physicians and Surgeons of Ontario which states

lsquoOn March 4 2019 the Discipline Committee ordered and directed that 1 Dr Mukherjee attend before the panel to be reprimanded 2 The Registrar suspend Dr Mukherjees certificate of registration for a period of six (6) months commencing immediately Dr Mukherjee shall comply with the College Policy 2-07 Practice Management Considerations for Physicians Who Cease to Practise Take an Extended Leave of Absence or Close Their Practice Due to Relocation a copy of which forms Schedule A to this Order 3 The Registrar place the following terms conditions and limitations on Dr Mukherjees certificate of registration

a Dr Mukherjee will at his own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than twelve (12) months from the date of this Order

4 Dr Mukherjee pay costs to the College in the amount of $600000 within 30 days of the date of this Orderrsquo

30 The Tribunal noted that Dr Mukherjee accepted in his emails dated 15 March 2019 and 4 August 2019 that he was subject to the regulatory determination and sanction 31 The Tribunal was satisfied having seen the determination from the CPSO dated 4 March 2019 that it was issued to Dr Mukherjee 32 Accordingly the Tribunal found paragraph 3 proved

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 9

The Tribunalrsquos Overall Determination on the Facts 33 The Tribunal has determined the facts as follows

lsquo1 On 23 May February 2015 at Ontario Court of Justice you were made the subject of an order for conditional discharge for a period of 12 months in respect of offences under the Criminal Code of Canada consisting ofrsquo

a mischief (two counts) pursuant to section 430(4) Determined and found proved b uttering threats to cause death or bodily harm pursuant to section 2641 (1)(a) Determined and found proved

2 You failed to notify the GMC without delay that you had been a found guilty of the criminal offences detailed in paragraph 1 Determined and found proved b conditionally discharged of the criminal offences detailed in paragraph 1 Determined and found proved

3 On 4 March 2019 The College of Physicians and Surgeons of Ontario a determined you had committed an act of professional misconduct in that you had been found guilty of an offence that is relevant to your suitability to practise and you had engaged in an act or omission relevant to the practice of medicine that having regard to all the circumstances would reasonably be regarded by members as disgraceful dishonourable or unprofessional Determined and found proved

b directed you attend before the panel to be reprimanded Determined and found proved

c suspended your certificate of registration for a period of six months commencing immediately Determined and found proved

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 10

d ordered you to at your own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than 12 months from the date of the Order Determined and found proved

Determination on Impairment - 17032020 1 The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether on the basis of the facts which it has found proved as set out before Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by another regulator The Evidence 2 The Tribunal has taken into account all the evidence received during the facts stage of the hearing both oral and documentary In addition the Tribunal also received a report from Dr E Dr Mukherjeersquos Responsible Officer dated 6 January 2020 Submissions 3 On behalf of the GMC Ms Jones reminded the Tribunal of the two stage test it must apply in relation to misconduct Ms Jones referred the Tribunal to the case of Cheatle v GMC (2009) EWHC 645 (Admin) in relation to the approach to be taken to findings of misconduct and impairment She submitted the misconduct amounts to serious misconduct Dr Mukherjee was convicted by an overseas court of two offences of mischief which would have been charged in this country as criminal damage and also a charge of threats to cause death or bodily harm sent to the complainant She stated that this was a series of offences that occurred over a few months in the context of a dysfunctional relationship which involved intimidation She stated it was an abusive relationship albeit that it was not all one way She submitted that Dr Mukherjeersquos behaviour amounted to serious professional misconduct She submitted that Dr Mukherjee failed to notify the GMC of the criminal offences for two years Ms Jones reminded the Tribunal that it is the registrantrsquos obligation to inform the regulator of any criminal proceedings She submitted that Dr Mukherjeersquos explanation that he did not appreciate it was his duty was unsatisfactory 4 Ms Jones referred the Tribunal to paragraphs 1 and 75 of the GMCrsquos guidance Good Medical Practice (GMP) which state

lsquo1 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

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 11

75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence c another professional body has made a finding against your registration as a result of fitness to practise proceduresrsquo

5 Ms Jones submitted that the offences could be categorised as domestic abuse and any involvement by a doctor is very serious indeed She submitted that should the tribunal find misconduct proved it should consider whether Dr Mukherjeersquos fitness to practise is impaired

6 Ms Jones referred the Tribunal to the comprehensive approach in determining impairment formulated by Dame Janet Smith in her Fifth Report on the Shipman Inquiry which states

lsquoDo our findings of fact in respect of the doctors misconduct deficient professional performance adverse health conviction caution or determination show that hisher fitness to practise is impaired in the sense that she

a has in the past acted andor is liable in the future to act so as to put a patient or patients at unwarranted risk of harm andor

b has in the past brought andor is liable in the future to bring the medical profession into disrepute andor

c has in the past breached andor is liable in the future to breach one of the fundamental tenets of the medical profession andor

d has in the past acted dishonestly andor is liable to act dishonestly in the futurersquo

7 Ms Jones conceded that Dr Mukherjeersquos actions have not put patients at risk She submitted that Dr Mukherjeersquos actions have brought the profession into disrepute and that limb b is clearly made out She submitted that it is for the Tribunal to determine whether Dr Mukherjee has breached one of the fundamental tenets of the profession She submitted that Dr Mukherjeersquos behaviour which included his failure to inform the GMC and the finding of the overseas regulator amounted to such a breach 8 She accepted that Dr Mukherjee has demonstrated remediation and remorse but invited the Tribunal to have regard to the nature of the misconduct and breaches of GMP and the seriousness of the misconduct She referred the Tribunal to the principle in

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 12

the case of Chaudhary v GMC 2017 EWHC 2561 (Admin) in relation to the need to give sufficient weight to the overarching objective which includes the wider public interest 9 Ms Jones referred the Tribunal to the case of Grant v NMC 2011 EWCH92 (Admin) and the need to uphold proper standards and confidence in the profession She accepted that the case law requires the Tribunal to look at impairment today but it is also required to have regard to the seriousness of the misconduct given the facts found proved She submitted that this is the type of case where notwithstanding Dr Mukherjeersquos personal remediation a finding of impairment is appropriate on public interest grounds 10 Ms Jones submitted that the Tribunal must consider the public interest regarding Dr Mukherjeersquos serious misconduct his failure to report his conviction and the determination by the overseas regulator and therefore a finding of impairment is imperative The Relevant Legal Principles 11 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 Tribunalrsquos judgement alone 12 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 and then whether the finding of that misconduct which was serious could lead to a finding of impairment 13 The Tribunal must determine whether Dr Mukherjeersquos fitness to practise is impaired today taking into account his 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 It was also mindful of the overarching objective as set out in Section 1(A) of the Medical Act and the importance of promoting and maintaining public confidence in the profession and proper standards of conduct 14 The Tribunal also took account of the case of Remedy UK Ltd v GMC (2010) EWHC 1245 (Admin) which described misconduct of two principal kinds

a sufficiently serious misconduct in the exercise of professional practice such that it can be properly described as misconduct going to fitness to practise b conduct of a morally culpable or otherwise disgraceful kind which may and often will occur outwith the course of professional practice itself but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 13

The Tribunalrsquos Determination on Impairment Misconduct 15 The Tribunal took account of paragraphs 1 and 75 in GMP as stated above 16 The Tribunal noted that Dr Mukherjee was convicted of two counts of mischief and one count of uttering threats The Tribunal considered the behaviour which led to Dr Mukherjeersquos conviction in that his offences occurred in the context of a dysfunctional relationship and included threats of violence against the complainant The Tribunal noted that in his email dated 15 March 2015 Dr Mukherjee accepted that the relationship with the complainant was toxic 17 The Tribunal is in agreement with the College of Physicians and Surgeons of Ontario (the CPSO) determination that Dr Mukherjee demonstrated disgraceful and outrageous behaviour 18 The Tribunal also noted the comments from Justice Robert G Selkirk who stated in his sentencing remarks

lsquo hellipit is fair to describe these events as acts of domestic violence which the Courts have always wanted to denounce and deterrsquo

19 The Tribunal considered that Dr Mukherjeersquos behaviour demonstrated sustained misconduct in the context of a domestic relationship over a period of months in 2013 The Tribunal has taken into account that Dr Mukherjeersquos offences were against a female and it was mindful that he works in obstetrics and gynaecology his primary patients being female 20 The Tribunal next considered Dr Mukherjeersquos failure to notify the GMC of his conviction without delay The Tribunal noted paragraph 75 as stated above and paragraph 3 of GMP Paragraph 3 states

lsquo3 Good medical practice describes what is expected of all doctors registered with the General Medical Council (GMC) It is your responsibility to be familiar with Good medical practice and the explanatory guidancedagger which supports it and to follow the guidance they containrsquo

21 The Tribunal is of the opinion that from 2013 onwards Dr Mukherjee had the opportunity to inform the GMC of the Canadian Police investigation and he must have realised at some time that he had a duty to do so especially following his conviction and sentence in 2015 The Tribunal determined that Dr Mukherjeersquos conduct demonstrated flagrant breaches of the principles in paragraphs 3 and 75 of GMP in that he failed to report his conviction to the GMC over an extended period when he should have known had a duty to do so

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 14

22 The Tribunal considered that Dr Mukherjeersquos conduct represented a significant departure from the expected standards of conduct and behaviour of a doctor as set out in paragraphs 1 3 and 75 of GMP 23 The Tribunal concluded that Dr Mukherjeersquos conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct Determination by a Regulatory Body 24 In considering whether Dr Mukherjeersquos fitness to practise is impaired by the determination by another regulatory body in this case the Tribunal has regard to section 35C(2) of the Medical Act which states

lsquoA personrsquos fitness to practise shall be regarded as ldquoimpairedrdquo for the purposes of this Act by reason only of ndash hellip

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired or a determination by a regulatory body elsewhere to the same effectrsquo

25 Section 35C(3) provides that an allegation may be based on a matter that is alleged to have occurred outside the United Kingdom 26 Section 35(C)(9) provides

lsquohelliprdquoregulatory bodyrdquo means a regulatory body which has the function of authorising persons to practise as a member of health or social care professionhelliprsquo

27 The Tribunal was satisfied that on 4 March 2019 the College of Physicians and Surgeons of Ontario (CPOS) in Canada made a determination against Dr Mukherjee and imposed a suspension for a period of six months Impairment 28 The Tribunal having found that the facts proved in relation to paragraphs 1 and 2 of the Allegation amounted to misconduct went on to consider whether as a result of that misconduct Dr Mukherjeersquos fitness to practise is currently impaired The Tribunal also considered whether the regulatory determination as found proved in paragraph 3 of the Allegation impaired his current fitness to practise

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 15

29 The Tribunal took account of Dr Mukherjeersquos personal remediation in relation to his convictions It noted that as part of his sentencing Dr Mukherjee completed a course on domestic violence Dr Mukherjee has also completed the courses lsquoPartner Assault Response Program aka Living Without Violencersquo and lsquoUnderstanding Boundariesrsquo XXX 30 Dr Mukherjee also worked with a workplace mentor at the Hospital on a monthly basis to discuss and review his conduct and interpersonal performance in the workplace 31 The Tribunal took account of Dr Mukherjeersquos statement in his email dated 4 August 2019 which states

lsquoI had submitted detailed statements to the IOT in April 2018 amp March 2019 pertaining to this single isolated incident related to personal domestic issue NOT involving any patients which started as a workplace affair starting in February 2012 terminating in Jan 2014 relationship was toxic and deteriorated as the time progressed leaving permanent ramifications affecting my career family self respect and my self confidence I am most remorseful repentant apologetic and ashamed of my behaviour and over these long period of six years I have worked in a constructive way with self analysis projected learning and reevaluation of various aspects of my life in a positive way Attending and successfully completing courses inclusive of the 1Boundaries Course at the Western University in London Ontario 2 Partner Assault Program which lasted for a period of 10 weeks 3[XXX] as were recommended by the Honble Court and by the CPSO I am also planning to attend Anger Management Course in Ottawa starting October 2019 this has been arranged by CMPA with consent and approval from CPSO In addition as recommended by the Hospital authorities XXX also confirmed that I was safe was allowed to continue with full clinical practice administrative responsibility as the Chief of Obstetrics amp Gynaecolgy and academic responsibility as Clinical Lecturer with the Ottawa Universityrsquo

32 The Tribunal noted that within a month of the CPSO determination on the 4 March 2019 (which included a six monthsrsquo suspension from practising in Canada) Dr Mukherjee started a job as a doctor in the UK on 10 April 2019 although it also noted that the GMC has not brought any allegation in relation to this 33 The Tribunal has not been made aware of any other disciplinary findings against Dr Mukherjee The Tribunal acknowledges that whilst Dr Mukherjee has made

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 16

expressions of remorse and sorrow which were directed towards the impact on himself his family and career he appears to lack sufficient insight into the impact on the complainant 34 The Tribunal considered that Dr Mukherjee has remediated his personal failings to a significant extent Nevertheless the Tribunal found that even though Dr Mukherjee has developed some insight and remediated his personal misconduct a finding of impairment is necessary in order to uphold proper standards and maintain public confidence in the profession consistent with the overarching objective The Tribunal was mindful that doctors occupy a position of privilege and trust and are expected to act in a manner which maintains public confidence in them and in the medical profession and to uphold proper standards of conduct 35 The Tribunal is in no doubt that public confidence in the medical profession and the need to uphold proper standards for that profession would be adversely affected if it were not to make a finding of impairment in this case The Tribunal has therefore determined that Dr Mukherjeersquos fitness to practise is currently impaired by reason of misconduct and the determination by an overseas regulator Determination on Sanction - 18032020 1 Having determined that Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by an overseas body the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction if any to impose Submissions 2 On behalf of the GMC Ms Jones reminded the Tribunal that the offences for which Dr Mukherjee received a conditional discharge were serious She acknowledged that the offences occurred some time ago in 2013 and there have been no further incidents She also acknowledged that Dr Mukherjee has remediated his misconduct and has expressed remorse at his behaviour 3 Ms Jones submitted that a sanction of suspension is appropriate in this case She referred the Tribunal to Sanctions Guidance (November 2019) (the SG) 4 Ms Jones acknowledged that Dr Mukherjee has developing insight and that there had been a passage of time since Dr Mukherjeersquos offences occurred In relation to remediation Ms Jones referred the Tribunal to paragraph 31 which states

rsquo31 Remediation is where a doctor addresses concerns about their knowledge skills conduct or behaviour Remediation can take a number of

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 17

forms including coaching mentoring training and rehabilitation (this list is not exhaustive) and where fully successful will make impairment unlikelyrsquo

5 In relation to insight Ms Jones referred the Tribunal to paragraphs 45 and 46 of the SG which state

rsquo45 Expressing insight involves demonstrating reflection and remediation 46 A doctor is likely to have insight if they

a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31ndash33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearingrsquo

6 Ms Jones referred the Tribunal to paragraph 56d of the SG which states rsquo56 Tribunals are also likely to take more serious action where certain conduct arises in a doctorrsquos personal life such as (this list is not exhaustive) hellip

d misconduct involving violence or offences of a sexual nature (see paragraphs 149ndash150) helliprsquo

7 Ms Jones reminded the Tribunal that Dr Mukherjeersquos behaviour amounted to domestic violence and the text messages he sent to the complainant were somewhat sinister She submitted that this case is too serious for the Tribunal to take no action or to impose conditions on Dr Mukherjeersquos registration Ms Jones further submitted that Dr Mukherjeersquos misconduct including his failure to inform the GMC of his conviction was so serious that it calls for a period of suspension She referred the Tribunal to paragraph 92 of the SG which states

lsquo92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)rsquo

8 Ms Jones submitted that the GMC consider that Dr Mukherjeersquos misconduct is very serious but falls short of incompatibility with continued registration She accepted that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 9: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 9

The Tribunalrsquos Overall Determination on the Facts 33 The Tribunal has determined the facts as follows

lsquo1 On 23 May February 2015 at Ontario Court of Justice you were made the subject of an order for conditional discharge for a period of 12 months in respect of offences under the Criminal Code of Canada consisting ofrsquo

a mischief (two counts) pursuant to section 430(4) Determined and found proved b uttering threats to cause death or bodily harm pursuant to section 2641 (1)(a) Determined and found proved

2 You failed to notify the GMC without delay that you had been a found guilty of the criminal offences detailed in paragraph 1 Determined and found proved b conditionally discharged of the criminal offences detailed in paragraph 1 Determined and found proved

3 On 4 March 2019 The College of Physicians and Surgeons of Ontario a determined you had committed an act of professional misconduct in that you had been found guilty of an offence that is relevant to your suitability to practise and you had engaged in an act or omission relevant to the practice of medicine that having regard to all the circumstances would reasonably be regarded by members as disgraceful dishonourable or unprofessional Determined and found proved

b directed you attend before the panel to be reprimanded Determined and found proved

c suspended your certificate of registration for a period of six months commencing immediately Determined and found proved

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 10

d ordered you to at your own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than 12 months from the date of the Order Determined and found proved

Determination on Impairment - 17032020 1 The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether on the basis of the facts which it has found proved as set out before Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by another regulator The Evidence 2 The Tribunal has taken into account all the evidence received during the facts stage of the hearing both oral and documentary In addition the Tribunal also received a report from Dr E Dr Mukherjeersquos Responsible Officer dated 6 January 2020 Submissions 3 On behalf of the GMC Ms Jones reminded the Tribunal of the two stage test it must apply in relation to misconduct Ms Jones referred the Tribunal to the case of Cheatle v GMC (2009) EWHC 645 (Admin) in relation to the approach to be taken to findings of misconduct and impairment She submitted the misconduct amounts to serious misconduct Dr Mukherjee was convicted by an overseas court of two offences of mischief which would have been charged in this country as criminal damage and also a charge of threats to cause death or bodily harm sent to the complainant She stated that this was a series of offences that occurred over a few months in the context of a dysfunctional relationship which involved intimidation She stated it was an abusive relationship albeit that it was not all one way She submitted that Dr Mukherjeersquos behaviour amounted to serious professional misconduct She submitted that Dr Mukherjee failed to notify the GMC of the criminal offences for two years Ms Jones reminded the Tribunal that it is the registrantrsquos obligation to inform the regulator of any criminal proceedings She submitted that Dr Mukherjeersquos explanation that he did not appreciate it was his duty was unsatisfactory 4 Ms Jones referred the Tribunal to paragraphs 1 and 75 of the GMCrsquos guidance Good Medical Practice (GMP) which state

lsquo1 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

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 11

75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence c another professional body has made a finding against your registration as a result of fitness to practise proceduresrsquo

5 Ms Jones submitted that the offences could be categorised as domestic abuse and any involvement by a doctor is very serious indeed She submitted that should the tribunal find misconduct proved it should consider whether Dr Mukherjeersquos fitness to practise is impaired

6 Ms Jones referred the Tribunal to the comprehensive approach in determining impairment formulated by Dame Janet Smith in her Fifth Report on the Shipman Inquiry which states

lsquoDo our findings of fact in respect of the doctors misconduct deficient professional performance adverse health conviction caution or determination show that hisher fitness to practise is impaired in the sense that she

a has in the past acted andor is liable in the future to act so as to put a patient or patients at unwarranted risk of harm andor

b has in the past brought andor is liable in the future to bring the medical profession into disrepute andor

c has in the past breached andor is liable in the future to breach one of the fundamental tenets of the medical profession andor

d has in the past acted dishonestly andor is liable to act dishonestly in the futurersquo

7 Ms Jones conceded that Dr Mukherjeersquos actions have not put patients at risk She submitted that Dr Mukherjeersquos actions have brought the profession into disrepute and that limb b is clearly made out She submitted that it is for the Tribunal to determine whether Dr Mukherjee has breached one of the fundamental tenets of the profession She submitted that Dr Mukherjeersquos behaviour which included his failure to inform the GMC and the finding of the overseas regulator amounted to such a breach 8 She accepted that Dr Mukherjee has demonstrated remediation and remorse but invited the Tribunal to have regard to the nature of the misconduct and breaches of GMP and the seriousness of the misconduct She referred the Tribunal to the principle in

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 12

the case of Chaudhary v GMC 2017 EWHC 2561 (Admin) in relation to the need to give sufficient weight to the overarching objective which includes the wider public interest 9 Ms Jones referred the Tribunal to the case of Grant v NMC 2011 EWCH92 (Admin) and the need to uphold proper standards and confidence in the profession She accepted that the case law requires the Tribunal to look at impairment today but it is also required to have regard to the seriousness of the misconduct given the facts found proved She submitted that this is the type of case where notwithstanding Dr Mukherjeersquos personal remediation a finding of impairment is appropriate on public interest grounds 10 Ms Jones submitted that the Tribunal must consider the public interest regarding Dr Mukherjeersquos serious misconduct his failure to report his conviction and the determination by the overseas regulator and therefore a finding of impairment is imperative The Relevant Legal Principles 11 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 Tribunalrsquos judgement alone 12 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 and then whether the finding of that misconduct which was serious could lead to a finding of impairment 13 The Tribunal must determine whether Dr Mukherjeersquos fitness to practise is impaired today taking into account his 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 It was also mindful of the overarching objective as set out in Section 1(A) of the Medical Act and the importance of promoting and maintaining public confidence in the profession and proper standards of conduct 14 The Tribunal also took account of the case of Remedy UK Ltd v GMC (2010) EWHC 1245 (Admin) which described misconduct of two principal kinds

a sufficiently serious misconduct in the exercise of professional practice such that it can be properly described as misconduct going to fitness to practise b conduct of a morally culpable or otherwise disgraceful kind which may and often will occur outwith the course of professional practice itself but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 13

The Tribunalrsquos Determination on Impairment Misconduct 15 The Tribunal took account of paragraphs 1 and 75 in GMP as stated above 16 The Tribunal noted that Dr Mukherjee was convicted of two counts of mischief and one count of uttering threats The Tribunal considered the behaviour which led to Dr Mukherjeersquos conviction in that his offences occurred in the context of a dysfunctional relationship and included threats of violence against the complainant The Tribunal noted that in his email dated 15 March 2015 Dr Mukherjee accepted that the relationship with the complainant was toxic 17 The Tribunal is in agreement with the College of Physicians and Surgeons of Ontario (the CPSO) determination that Dr Mukherjee demonstrated disgraceful and outrageous behaviour 18 The Tribunal also noted the comments from Justice Robert G Selkirk who stated in his sentencing remarks

lsquo hellipit is fair to describe these events as acts of domestic violence which the Courts have always wanted to denounce and deterrsquo

19 The Tribunal considered that Dr Mukherjeersquos behaviour demonstrated sustained misconduct in the context of a domestic relationship over a period of months in 2013 The Tribunal has taken into account that Dr Mukherjeersquos offences were against a female and it was mindful that he works in obstetrics and gynaecology his primary patients being female 20 The Tribunal next considered Dr Mukherjeersquos failure to notify the GMC of his conviction without delay The Tribunal noted paragraph 75 as stated above and paragraph 3 of GMP Paragraph 3 states

lsquo3 Good medical practice describes what is expected of all doctors registered with the General Medical Council (GMC) It is your responsibility to be familiar with Good medical practice and the explanatory guidancedagger which supports it and to follow the guidance they containrsquo

21 The Tribunal is of the opinion that from 2013 onwards Dr Mukherjee had the opportunity to inform the GMC of the Canadian Police investigation and he must have realised at some time that he had a duty to do so especially following his conviction and sentence in 2015 The Tribunal determined that Dr Mukherjeersquos conduct demonstrated flagrant breaches of the principles in paragraphs 3 and 75 of GMP in that he failed to report his conviction to the GMC over an extended period when he should have known had a duty to do so

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 14

22 The Tribunal considered that Dr Mukherjeersquos conduct represented a significant departure from the expected standards of conduct and behaviour of a doctor as set out in paragraphs 1 3 and 75 of GMP 23 The Tribunal concluded that Dr Mukherjeersquos conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct Determination by a Regulatory Body 24 In considering whether Dr Mukherjeersquos fitness to practise is impaired by the determination by another regulatory body in this case the Tribunal has regard to section 35C(2) of the Medical Act which states

lsquoA personrsquos fitness to practise shall be regarded as ldquoimpairedrdquo for the purposes of this Act by reason only of ndash hellip

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired or a determination by a regulatory body elsewhere to the same effectrsquo

25 Section 35C(3) provides that an allegation may be based on a matter that is alleged to have occurred outside the United Kingdom 26 Section 35(C)(9) provides

lsquohelliprdquoregulatory bodyrdquo means a regulatory body which has the function of authorising persons to practise as a member of health or social care professionhelliprsquo

27 The Tribunal was satisfied that on 4 March 2019 the College of Physicians and Surgeons of Ontario (CPOS) in Canada made a determination against Dr Mukherjee and imposed a suspension for a period of six months Impairment 28 The Tribunal having found that the facts proved in relation to paragraphs 1 and 2 of the Allegation amounted to misconduct went on to consider whether as a result of that misconduct Dr Mukherjeersquos fitness to practise is currently impaired The Tribunal also considered whether the regulatory determination as found proved in paragraph 3 of the Allegation impaired his current fitness to practise

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 15

29 The Tribunal took account of Dr Mukherjeersquos personal remediation in relation to his convictions It noted that as part of his sentencing Dr Mukherjee completed a course on domestic violence Dr Mukherjee has also completed the courses lsquoPartner Assault Response Program aka Living Without Violencersquo and lsquoUnderstanding Boundariesrsquo XXX 30 Dr Mukherjee also worked with a workplace mentor at the Hospital on a monthly basis to discuss and review his conduct and interpersonal performance in the workplace 31 The Tribunal took account of Dr Mukherjeersquos statement in his email dated 4 August 2019 which states

lsquoI had submitted detailed statements to the IOT in April 2018 amp March 2019 pertaining to this single isolated incident related to personal domestic issue NOT involving any patients which started as a workplace affair starting in February 2012 terminating in Jan 2014 relationship was toxic and deteriorated as the time progressed leaving permanent ramifications affecting my career family self respect and my self confidence I am most remorseful repentant apologetic and ashamed of my behaviour and over these long period of six years I have worked in a constructive way with self analysis projected learning and reevaluation of various aspects of my life in a positive way Attending and successfully completing courses inclusive of the 1Boundaries Course at the Western University in London Ontario 2 Partner Assault Program which lasted for a period of 10 weeks 3[XXX] as were recommended by the Honble Court and by the CPSO I am also planning to attend Anger Management Course in Ottawa starting October 2019 this has been arranged by CMPA with consent and approval from CPSO In addition as recommended by the Hospital authorities XXX also confirmed that I was safe was allowed to continue with full clinical practice administrative responsibility as the Chief of Obstetrics amp Gynaecolgy and academic responsibility as Clinical Lecturer with the Ottawa Universityrsquo

32 The Tribunal noted that within a month of the CPSO determination on the 4 March 2019 (which included a six monthsrsquo suspension from practising in Canada) Dr Mukherjee started a job as a doctor in the UK on 10 April 2019 although it also noted that the GMC has not brought any allegation in relation to this 33 The Tribunal has not been made aware of any other disciplinary findings against Dr Mukherjee The Tribunal acknowledges that whilst Dr Mukherjee has made

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 16

expressions of remorse and sorrow which were directed towards the impact on himself his family and career he appears to lack sufficient insight into the impact on the complainant 34 The Tribunal considered that Dr Mukherjee has remediated his personal failings to a significant extent Nevertheless the Tribunal found that even though Dr Mukherjee has developed some insight and remediated his personal misconduct a finding of impairment is necessary in order to uphold proper standards and maintain public confidence in the profession consistent with the overarching objective The Tribunal was mindful that doctors occupy a position of privilege and trust and are expected to act in a manner which maintains public confidence in them and in the medical profession and to uphold proper standards of conduct 35 The Tribunal is in no doubt that public confidence in the medical profession and the need to uphold proper standards for that profession would be adversely affected if it were not to make a finding of impairment in this case The Tribunal has therefore determined that Dr Mukherjeersquos fitness to practise is currently impaired by reason of misconduct and the determination by an overseas regulator Determination on Sanction - 18032020 1 Having determined that Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by an overseas body the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction if any to impose Submissions 2 On behalf of the GMC Ms Jones reminded the Tribunal that the offences for which Dr Mukherjee received a conditional discharge were serious She acknowledged that the offences occurred some time ago in 2013 and there have been no further incidents She also acknowledged that Dr Mukherjee has remediated his misconduct and has expressed remorse at his behaviour 3 Ms Jones submitted that a sanction of suspension is appropriate in this case She referred the Tribunal to Sanctions Guidance (November 2019) (the SG) 4 Ms Jones acknowledged that Dr Mukherjee has developing insight and that there had been a passage of time since Dr Mukherjeersquos offences occurred In relation to remediation Ms Jones referred the Tribunal to paragraph 31 which states

rsquo31 Remediation is where a doctor addresses concerns about their knowledge skills conduct or behaviour Remediation can take a number of

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 17

forms including coaching mentoring training and rehabilitation (this list is not exhaustive) and where fully successful will make impairment unlikelyrsquo

5 In relation to insight Ms Jones referred the Tribunal to paragraphs 45 and 46 of the SG which state

rsquo45 Expressing insight involves demonstrating reflection and remediation 46 A doctor is likely to have insight if they

a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31ndash33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearingrsquo

6 Ms Jones referred the Tribunal to paragraph 56d of the SG which states rsquo56 Tribunals are also likely to take more serious action where certain conduct arises in a doctorrsquos personal life such as (this list is not exhaustive) hellip

d misconduct involving violence or offences of a sexual nature (see paragraphs 149ndash150) helliprsquo

7 Ms Jones reminded the Tribunal that Dr Mukherjeersquos behaviour amounted to domestic violence and the text messages he sent to the complainant were somewhat sinister She submitted that this case is too serious for the Tribunal to take no action or to impose conditions on Dr Mukherjeersquos registration Ms Jones further submitted that Dr Mukherjeersquos misconduct including his failure to inform the GMC of his conviction was so serious that it calls for a period of suspension She referred the Tribunal to paragraph 92 of the SG which states

lsquo92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)rsquo

8 Ms Jones submitted that the GMC consider that Dr Mukherjeersquos misconduct is very serious but falls short of incompatibility with continued registration She accepted that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 10: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 10

d ordered you to at your own expense participate in and successfully complete comprehensive and intensive instruction in anger management approved by the College no later than 12 months from the date of the Order Determined and found proved

Determination on Impairment - 17032020 1 The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether on the basis of the facts which it has found proved as set out before Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by another regulator The Evidence 2 The Tribunal has taken into account all the evidence received during the facts stage of the hearing both oral and documentary In addition the Tribunal also received a report from Dr E Dr Mukherjeersquos Responsible Officer dated 6 January 2020 Submissions 3 On behalf of the GMC Ms Jones reminded the Tribunal of the two stage test it must apply in relation to misconduct Ms Jones referred the Tribunal to the case of Cheatle v GMC (2009) EWHC 645 (Admin) in relation to the approach to be taken to findings of misconduct and impairment She submitted the misconduct amounts to serious misconduct Dr Mukherjee was convicted by an overseas court of two offences of mischief which would have been charged in this country as criminal damage and also a charge of threats to cause death or bodily harm sent to the complainant She stated that this was a series of offences that occurred over a few months in the context of a dysfunctional relationship which involved intimidation She stated it was an abusive relationship albeit that it was not all one way She submitted that Dr Mukherjeersquos behaviour amounted to serious professional misconduct She submitted that Dr Mukherjee failed to notify the GMC of the criminal offences for two years Ms Jones reminded the Tribunal that it is the registrantrsquos obligation to inform the regulator of any criminal proceedings She submitted that Dr Mukherjeersquos explanation that he did not appreciate it was his duty was unsatisfactory 4 Ms Jones referred the Tribunal to paragraphs 1 and 75 of the GMCrsquos guidance Good Medical Practice (GMP) which state

lsquo1 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

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 11

75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence c another professional body has made a finding against your registration as a result of fitness to practise proceduresrsquo

5 Ms Jones submitted that the offences could be categorised as domestic abuse and any involvement by a doctor is very serious indeed She submitted that should the tribunal find misconduct proved it should consider whether Dr Mukherjeersquos fitness to practise is impaired

6 Ms Jones referred the Tribunal to the comprehensive approach in determining impairment formulated by Dame Janet Smith in her Fifth Report on the Shipman Inquiry which states

lsquoDo our findings of fact in respect of the doctors misconduct deficient professional performance adverse health conviction caution or determination show that hisher fitness to practise is impaired in the sense that she

a has in the past acted andor is liable in the future to act so as to put a patient or patients at unwarranted risk of harm andor

b has in the past brought andor is liable in the future to bring the medical profession into disrepute andor

c has in the past breached andor is liable in the future to breach one of the fundamental tenets of the medical profession andor

d has in the past acted dishonestly andor is liable to act dishonestly in the futurersquo

7 Ms Jones conceded that Dr Mukherjeersquos actions have not put patients at risk She submitted that Dr Mukherjeersquos actions have brought the profession into disrepute and that limb b is clearly made out She submitted that it is for the Tribunal to determine whether Dr Mukherjee has breached one of the fundamental tenets of the profession She submitted that Dr Mukherjeersquos behaviour which included his failure to inform the GMC and the finding of the overseas regulator amounted to such a breach 8 She accepted that Dr Mukherjee has demonstrated remediation and remorse but invited the Tribunal to have regard to the nature of the misconduct and breaches of GMP and the seriousness of the misconduct She referred the Tribunal to the principle in

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 12

the case of Chaudhary v GMC 2017 EWHC 2561 (Admin) in relation to the need to give sufficient weight to the overarching objective which includes the wider public interest 9 Ms Jones referred the Tribunal to the case of Grant v NMC 2011 EWCH92 (Admin) and the need to uphold proper standards and confidence in the profession She accepted that the case law requires the Tribunal to look at impairment today but it is also required to have regard to the seriousness of the misconduct given the facts found proved She submitted that this is the type of case where notwithstanding Dr Mukherjeersquos personal remediation a finding of impairment is appropriate on public interest grounds 10 Ms Jones submitted that the Tribunal must consider the public interest regarding Dr Mukherjeersquos serious misconduct his failure to report his conviction and the determination by the overseas regulator and therefore a finding of impairment is imperative The Relevant Legal Principles 11 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 Tribunalrsquos judgement alone 12 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 and then whether the finding of that misconduct which was serious could lead to a finding of impairment 13 The Tribunal must determine whether Dr Mukherjeersquos fitness to practise is impaired today taking into account his 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 It was also mindful of the overarching objective as set out in Section 1(A) of the Medical Act and the importance of promoting and maintaining public confidence in the profession and proper standards of conduct 14 The Tribunal also took account of the case of Remedy UK Ltd v GMC (2010) EWHC 1245 (Admin) which described misconduct of two principal kinds

a sufficiently serious misconduct in the exercise of professional practice such that it can be properly described as misconduct going to fitness to practise b conduct of a morally culpable or otherwise disgraceful kind which may and often will occur outwith the course of professional practice itself but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 13

The Tribunalrsquos Determination on Impairment Misconduct 15 The Tribunal took account of paragraphs 1 and 75 in GMP as stated above 16 The Tribunal noted that Dr Mukherjee was convicted of two counts of mischief and one count of uttering threats The Tribunal considered the behaviour which led to Dr Mukherjeersquos conviction in that his offences occurred in the context of a dysfunctional relationship and included threats of violence against the complainant The Tribunal noted that in his email dated 15 March 2015 Dr Mukherjee accepted that the relationship with the complainant was toxic 17 The Tribunal is in agreement with the College of Physicians and Surgeons of Ontario (the CPSO) determination that Dr Mukherjee demonstrated disgraceful and outrageous behaviour 18 The Tribunal also noted the comments from Justice Robert G Selkirk who stated in his sentencing remarks

lsquo hellipit is fair to describe these events as acts of domestic violence which the Courts have always wanted to denounce and deterrsquo

19 The Tribunal considered that Dr Mukherjeersquos behaviour demonstrated sustained misconduct in the context of a domestic relationship over a period of months in 2013 The Tribunal has taken into account that Dr Mukherjeersquos offences were against a female and it was mindful that he works in obstetrics and gynaecology his primary patients being female 20 The Tribunal next considered Dr Mukherjeersquos failure to notify the GMC of his conviction without delay The Tribunal noted paragraph 75 as stated above and paragraph 3 of GMP Paragraph 3 states

lsquo3 Good medical practice describes what is expected of all doctors registered with the General Medical Council (GMC) It is your responsibility to be familiar with Good medical practice and the explanatory guidancedagger which supports it and to follow the guidance they containrsquo

21 The Tribunal is of the opinion that from 2013 onwards Dr Mukherjee had the opportunity to inform the GMC of the Canadian Police investigation and he must have realised at some time that he had a duty to do so especially following his conviction and sentence in 2015 The Tribunal determined that Dr Mukherjeersquos conduct demonstrated flagrant breaches of the principles in paragraphs 3 and 75 of GMP in that he failed to report his conviction to the GMC over an extended period when he should have known had a duty to do so

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 14

22 The Tribunal considered that Dr Mukherjeersquos conduct represented a significant departure from the expected standards of conduct and behaviour of a doctor as set out in paragraphs 1 3 and 75 of GMP 23 The Tribunal concluded that Dr Mukherjeersquos conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct Determination by a Regulatory Body 24 In considering whether Dr Mukherjeersquos fitness to practise is impaired by the determination by another regulatory body in this case the Tribunal has regard to section 35C(2) of the Medical Act which states

lsquoA personrsquos fitness to practise shall be regarded as ldquoimpairedrdquo for the purposes of this Act by reason only of ndash hellip

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired or a determination by a regulatory body elsewhere to the same effectrsquo

25 Section 35C(3) provides that an allegation may be based on a matter that is alleged to have occurred outside the United Kingdom 26 Section 35(C)(9) provides

lsquohelliprdquoregulatory bodyrdquo means a regulatory body which has the function of authorising persons to practise as a member of health or social care professionhelliprsquo

27 The Tribunal was satisfied that on 4 March 2019 the College of Physicians and Surgeons of Ontario (CPOS) in Canada made a determination against Dr Mukherjee and imposed a suspension for a period of six months Impairment 28 The Tribunal having found that the facts proved in relation to paragraphs 1 and 2 of the Allegation amounted to misconduct went on to consider whether as a result of that misconduct Dr Mukherjeersquos fitness to practise is currently impaired The Tribunal also considered whether the regulatory determination as found proved in paragraph 3 of the Allegation impaired his current fitness to practise

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 15

29 The Tribunal took account of Dr Mukherjeersquos personal remediation in relation to his convictions It noted that as part of his sentencing Dr Mukherjee completed a course on domestic violence Dr Mukherjee has also completed the courses lsquoPartner Assault Response Program aka Living Without Violencersquo and lsquoUnderstanding Boundariesrsquo XXX 30 Dr Mukherjee also worked with a workplace mentor at the Hospital on a monthly basis to discuss and review his conduct and interpersonal performance in the workplace 31 The Tribunal took account of Dr Mukherjeersquos statement in his email dated 4 August 2019 which states

lsquoI had submitted detailed statements to the IOT in April 2018 amp March 2019 pertaining to this single isolated incident related to personal domestic issue NOT involving any patients which started as a workplace affair starting in February 2012 terminating in Jan 2014 relationship was toxic and deteriorated as the time progressed leaving permanent ramifications affecting my career family self respect and my self confidence I am most remorseful repentant apologetic and ashamed of my behaviour and over these long period of six years I have worked in a constructive way with self analysis projected learning and reevaluation of various aspects of my life in a positive way Attending and successfully completing courses inclusive of the 1Boundaries Course at the Western University in London Ontario 2 Partner Assault Program which lasted for a period of 10 weeks 3[XXX] as were recommended by the Honble Court and by the CPSO I am also planning to attend Anger Management Course in Ottawa starting October 2019 this has been arranged by CMPA with consent and approval from CPSO In addition as recommended by the Hospital authorities XXX also confirmed that I was safe was allowed to continue with full clinical practice administrative responsibility as the Chief of Obstetrics amp Gynaecolgy and academic responsibility as Clinical Lecturer with the Ottawa Universityrsquo

32 The Tribunal noted that within a month of the CPSO determination on the 4 March 2019 (which included a six monthsrsquo suspension from practising in Canada) Dr Mukherjee started a job as a doctor in the UK on 10 April 2019 although it also noted that the GMC has not brought any allegation in relation to this 33 The Tribunal has not been made aware of any other disciplinary findings against Dr Mukherjee The Tribunal acknowledges that whilst Dr Mukherjee has made

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 16

expressions of remorse and sorrow which were directed towards the impact on himself his family and career he appears to lack sufficient insight into the impact on the complainant 34 The Tribunal considered that Dr Mukherjee has remediated his personal failings to a significant extent Nevertheless the Tribunal found that even though Dr Mukherjee has developed some insight and remediated his personal misconduct a finding of impairment is necessary in order to uphold proper standards and maintain public confidence in the profession consistent with the overarching objective The Tribunal was mindful that doctors occupy a position of privilege and trust and are expected to act in a manner which maintains public confidence in them and in the medical profession and to uphold proper standards of conduct 35 The Tribunal is in no doubt that public confidence in the medical profession and the need to uphold proper standards for that profession would be adversely affected if it were not to make a finding of impairment in this case The Tribunal has therefore determined that Dr Mukherjeersquos fitness to practise is currently impaired by reason of misconduct and the determination by an overseas regulator Determination on Sanction - 18032020 1 Having determined that Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by an overseas body the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction if any to impose Submissions 2 On behalf of the GMC Ms Jones reminded the Tribunal that the offences for which Dr Mukherjee received a conditional discharge were serious She acknowledged that the offences occurred some time ago in 2013 and there have been no further incidents She also acknowledged that Dr Mukherjee has remediated his misconduct and has expressed remorse at his behaviour 3 Ms Jones submitted that a sanction of suspension is appropriate in this case She referred the Tribunal to Sanctions Guidance (November 2019) (the SG) 4 Ms Jones acknowledged that Dr Mukherjee has developing insight and that there had been a passage of time since Dr Mukherjeersquos offences occurred In relation to remediation Ms Jones referred the Tribunal to paragraph 31 which states

rsquo31 Remediation is where a doctor addresses concerns about their knowledge skills conduct or behaviour Remediation can take a number of

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 17

forms including coaching mentoring training and rehabilitation (this list is not exhaustive) and where fully successful will make impairment unlikelyrsquo

5 In relation to insight Ms Jones referred the Tribunal to paragraphs 45 and 46 of the SG which state

rsquo45 Expressing insight involves demonstrating reflection and remediation 46 A doctor is likely to have insight if they

a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31ndash33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearingrsquo

6 Ms Jones referred the Tribunal to paragraph 56d of the SG which states rsquo56 Tribunals are also likely to take more serious action where certain conduct arises in a doctorrsquos personal life such as (this list is not exhaustive) hellip

d misconduct involving violence or offences of a sexual nature (see paragraphs 149ndash150) helliprsquo

7 Ms Jones reminded the Tribunal that Dr Mukherjeersquos behaviour amounted to domestic violence and the text messages he sent to the complainant were somewhat sinister She submitted that this case is too serious for the Tribunal to take no action or to impose conditions on Dr Mukherjeersquos registration Ms Jones further submitted that Dr Mukherjeersquos misconduct including his failure to inform the GMC of his conviction was so serious that it calls for a period of suspension She referred the Tribunal to paragraph 92 of the SG which states

lsquo92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)rsquo

8 Ms Jones submitted that the GMC consider that Dr Mukherjeersquos misconduct is very serious but falls short of incompatibility with continued registration She accepted that

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 11: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

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Medical Practitioners Tribunal

MPT Dr MUKHERJEE 11

75 You must tell us without delay if anywhere in the world

a you have accepted a caution from the police or been criticised by an official inquiry b you have been charged with or found guilty of a criminal offence c another professional body has made a finding against your registration as a result of fitness to practise proceduresrsquo

5 Ms Jones submitted that the offences could be categorised as domestic abuse and any involvement by a doctor is very serious indeed She submitted that should the tribunal find misconduct proved it should consider whether Dr Mukherjeersquos fitness to practise is impaired

6 Ms Jones referred the Tribunal to the comprehensive approach in determining impairment formulated by Dame Janet Smith in her Fifth Report on the Shipman Inquiry which states

lsquoDo our findings of fact in respect of the doctors misconduct deficient professional performance adverse health conviction caution or determination show that hisher fitness to practise is impaired in the sense that she

a has in the past acted andor is liable in the future to act so as to put a patient or patients at unwarranted risk of harm andor

b has in the past brought andor is liable in the future to bring the medical profession into disrepute andor

c has in the past breached andor is liable in the future to breach one of the fundamental tenets of the medical profession andor

d has in the past acted dishonestly andor is liable to act dishonestly in the futurersquo

7 Ms Jones conceded that Dr Mukherjeersquos actions have not put patients at risk She submitted that Dr Mukherjeersquos actions have brought the profession into disrepute and that limb b is clearly made out She submitted that it is for the Tribunal to determine whether Dr Mukherjee has breached one of the fundamental tenets of the profession She submitted that Dr Mukherjeersquos behaviour which included his failure to inform the GMC and the finding of the overseas regulator amounted to such a breach 8 She accepted that Dr Mukherjee has demonstrated remediation and remorse but invited the Tribunal to have regard to the nature of the misconduct and breaches of GMP and the seriousness of the misconduct She referred the Tribunal to the principle in

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 12

the case of Chaudhary v GMC 2017 EWHC 2561 (Admin) in relation to the need to give sufficient weight to the overarching objective which includes the wider public interest 9 Ms Jones referred the Tribunal to the case of Grant v NMC 2011 EWCH92 (Admin) and the need to uphold proper standards and confidence in the profession She accepted that the case law requires the Tribunal to look at impairment today but it is also required to have regard to the seriousness of the misconduct given the facts found proved She submitted that this is the type of case where notwithstanding Dr Mukherjeersquos personal remediation a finding of impairment is appropriate on public interest grounds 10 Ms Jones submitted that the Tribunal must consider the public interest regarding Dr Mukherjeersquos serious misconduct his failure to report his conviction and the determination by the overseas regulator and therefore a finding of impairment is imperative The Relevant Legal Principles 11 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 Tribunalrsquos judgement alone 12 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 and then whether the finding of that misconduct which was serious could lead to a finding of impairment 13 The Tribunal must determine whether Dr Mukherjeersquos fitness to practise is impaired today taking into account his 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 It was also mindful of the overarching objective as set out in Section 1(A) of the Medical Act and the importance of promoting and maintaining public confidence in the profession and proper standards of conduct 14 The Tribunal also took account of the case of Remedy UK Ltd v GMC (2010) EWHC 1245 (Admin) which described misconduct of two principal kinds

a sufficiently serious misconduct in the exercise of professional practice such that it can be properly described as misconduct going to fitness to practise b conduct of a morally culpable or otherwise disgraceful kind which may and often will occur outwith the course of professional practice itself but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 13

The Tribunalrsquos Determination on Impairment Misconduct 15 The Tribunal took account of paragraphs 1 and 75 in GMP as stated above 16 The Tribunal noted that Dr Mukherjee was convicted of two counts of mischief and one count of uttering threats The Tribunal considered the behaviour which led to Dr Mukherjeersquos conviction in that his offences occurred in the context of a dysfunctional relationship and included threats of violence against the complainant The Tribunal noted that in his email dated 15 March 2015 Dr Mukherjee accepted that the relationship with the complainant was toxic 17 The Tribunal is in agreement with the College of Physicians and Surgeons of Ontario (the CPSO) determination that Dr Mukherjee demonstrated disgraceful and outrageous behaviour 18 The Tribunal also noted the comments from Justice Robert G Selkirk who stated in his sentencing remarks

lsquo hellipit is fair to describe these events as acts of domestic violence which the Courts have always wanted to denounce and deterrsquo

19 The Tribunal considered that Dr Mukherjeersquos behaviour demonstrated sustained misconduct in the context of a domestic relationship over a period of months in 2013 The Tribunal has taken into account that Dr Mukherjeersquos offences were against a female and it was mindful that he works in obstetrics and gynaecology his primary patients being female 20 The Tribunal next considered Dr Mukherjeersquos failure to notify the GMC of his conviction without delay The Tribunal noted paragraph 75 as stated above and paragraph 3 of GMP Paragraph 3 states

lsquo3 Good medical practice describes what is expected of all doctors registered with the General Medical Council (GMC) It is your responsibility to be familiar with Good medical practice and the explanatory guidancedagger which supports it and to follow the guidance they containrsquo

21 The Tribunal is of the opinion that from 2013 onwards Dr Mukherjee had the opportunity to inform the GMC of the Canadian Police investigation and he must have realised at some time that he had a duty to do so especially following his conviction and sentence in 2015 The Tribunal determined that Dr Mukherjeersquos conduct demonstrated flagrant breaches of the principles in paragraphs 3 and 75 of GMP in that he failed to report his conviction to the GMC over an extended period when he should have known had a duty to do so

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 14

22 The Tribunal considered that Dr Mukherjeersquos conduct represented a significant departure from the expected standards of conduct and behaviour of a doctor as set out in paragraphs 1 3 and 75 of GMP 23 The Tribunal concluded that Dr Mukherjeersquos conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct Determination by a Regulatory Body 24 In considering whether Dr Mukherjeersquos fitness to practise is impaired by the determination by another regulatory body in this case the Tribunal has regard to section 35C(2) of the Medical Act which states

lsquoA personrsquos fitness to practise shall be regarded as ldquoimpairedrdquo for the purposes of this Act by reason only of ndash hellip

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired or a determination by a regulatory body elsewhere to the same effectrsquo

25 Section 35C(3) provides that an allegation may be based on a matter that is alleged to have occurred outside the United Kingdom 26 Section 35(C)(9) provides

lsquohelliprdquoregulatory bodyrdquo means a regulatory body which has the function of authorising persons to practise as a member of health or social care professionhelliprsquo

27 The Tribunal was satisfied that on 4 March 2019 the College of Physicians and Surgeons of Ontario (CPOS) in Canada made a determination against Dr Mukherjee and imposed a suspension for a period of six months Impairment 28 The Tribunal having found that the facts proved in relation to paragraphs 1 and 2 of the Allegation amounted to misconduct went on to consider whether as a result of that misconduct Dr Mukherjeersquos fitness to practise is currently impaired The Tribunal also considered whether the regulatory determination as found proved in paragraph 3 of the Allegation impaired his current fitness to practise

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 15

29 The Tribunal took account of Dr Mukherjeersquos personal remediation in relation to his convictions It noted that as part of his sentencing Dr Mukherjee completed a course on domestic violence Dr Mukherjee has also completed the courses lsquoPartner Assault Response Program aka Living Without Violencersquo and lsquoUnderstanding Boundariesrsquo XXX 30 Dr Mukherjee also worked with a workplace mentor at the Hospital on a monthly basis to discuss and review his conduct and interpersonal performance in the workplace 31 The Tribunal took account of Dr Mukherjeersquos statement in his email dated 4 August 2019 which states

lsquoI had submitted detailed statements to the IOT in April 2018 amp March 2019 pertaining to this single isolated incident related to personal domestic issue NOT involving any patients which started as a workplace affair starting in February 2012 terminating in Jan 2014 relationship was toxic and deteriorated as the time progressed leaving permanent ramifications affecting my career family self respect and my self confidence I am most remorseful repentant apologetic and ashamed of my behaviour and over these long period of six years I have worked in a constructive way with self analysis projected learning and reevaluation of various aspects of my life in a positive way Attending and successfully completing courses inclusive of the 1Boundaries Course at the Western University in London Ontario 2 Partner Assault Program which lasted for a period of 10 weeks 3[XXX] as were recommended by the Honble Court and by the CPSO I am also planning to attend Anger Management Course in Ottawa starting October 2019 this has been arranged by CMPA with consent and approval from CPSO In addition as recommended by the Hospital authorities XXX also confirmed that I was safe was allowed to continue with full clinical practice administrative responsibility as the Chief of Obstetrics amp Gynaecolgy and academic responsibility as Clinical Lecturer with the Ottawa Universityrsquo

32 The Tribunal noted that within a month of the CPSO determination on the 4 March 2019 (which included a six monthsrsquo suspension from practising in Canada) Dr Mukherjee started a job as a doctor in the UK on 10 April 2019 although it also noted that the GMC has not brought any allegation in relation to this 33 The Tribunal has not been made aware of any other disciplinary findings against Dr Mukherjee The Tribunal acknowledges that whilst Dr Mukherjee has made

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 16

expressions of remorse and sorrow which were directed towards the impact on himself his family and career he appears to lack sufficient insight into the impact on the complainant 34 The Tribunal considered that Dr Mukherjee has remediated his personal failings to a significant extent Nevertheless the Tribunal found that even though Dr Mukherjee has developed some insight and remediated his personal misconduct a finding of impairment is necessary in order to uphold proper standards and maintain public confidence in the profession consistent with the overarching objective The Tribunal was mindful that doctors occupy a position of privilege and trust and are expected to act in a manner which maintains public confidence in them and in the medical profession and to uphold proper standards of conduct 35 The Tribunal is in no doubt that public confidence in the medical profession and the need to uphold proper standards for that profession would be adversely affected if it were not to make a finding of impairment in this case The Tribunal has therefore determined that Dr Mukherjeersquos fitness to practise is currently impaired by reason of misconduct and the determination by an overseas regulator Determination on Sanction - 18032020 1 Having determined that Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by an overseas body the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction if any to impose Submissions 2 On behalf of the GMC Ms Jones reminded the Tribunal that the offences for which Dr Mukherjee received a conditional discharge were serious She acknowledged that the offences occurred some time ago in 2013 and there have been no further incidents She also acknowledged that Dr Mukherjee has remediated his misconduct and has expressed remorse at his behaviour 3 Ms Jones submitted that a sanction of suspension is appropriate in this case She referred the Tribunal to Sanctions Guidance (November 2019) (the SG) 4 Ms Jones acknowledged that Dr Mukherjee has developing insight and that there had been a passage of time since Dr Mukherjeersquos offences occurred In relation to remediation Ms Jones referred the Tribunal to paragraph 31 which states

rsquo31 Remediation is where a doctor addresses concerns about their knowledge skills conduct or behaviour Remediation can take a number of

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 17

forms including coaching mentoring training and rehabilitation (this list is not exhaustive) and where fully successful will make impairment unlikelyrsquo

5 In relation to insight Ms Jones referred the Tribunal to paragraphs 45 and 46 of the SG which state

rsquo45 Expressing insight involves demonstrating reflection and remediation 46 A doctor is likely to have insight if they

a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31ndash33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearingrsquo

6 Ms Jones referred the Tribunal to paragraph 56d of the SG which states rsquo56 Tribunals are also likely to take more serious action where certain conduct arises in a doctorrsquos personal life such as (this list is not exhaustive) hellip

d misconduct involving violence or offences of a sexual nature (see paragraphs 149ndash150) helliprsquo

7 Ms Jones reminded the Tribunal that Dr Mukherjeersquos behaviour amounted to domestic violence and the text messages he sent to the complainant were somewhat sinister She submitted that this case is too serious for the Tribunal to take no action or to impose conditions on Dr Mukherjeersquos registration Ms Jones further submitted that Dr Mukherjeersquos misconduct including his failure to inform the GMC of his conviction was so serious that it calls for a period of suspension She referred the Tribunal to paragraph 92 of the SG which states

lsquo92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)rsquo

8 Ms Jones submitted that the GMC consider that Dr Mukherjeersquos misconduct is very serious but falls short of incompatibility with continued registration She accepted that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 12: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 12

the case of Chaudhary v GMC 2017 EWHC 2561 (Admin) in relation to the need to give sufficient weight to the overarching objective which includes the wider public interest 9 Ms Jones referred the Tribunal to the case of Grant v NMC 2011 EWCH92 (Admin) and the need to uphold proper standards and confidence in the profession She accepted that the case law requires the Tribunal to look at impairment today but it is also required to have regard to the seriousness of the misconduct given the facts found proved She submitted that this is the type of case where notwithstanding Dr Mukherjeersquos personal remediation a finding of impairment is appropriate on public interest grounds 10 Ms Jones submitted that the Tribunal must consider the public interest regarding Dr Mukherjeersquos serious misconduct his failure to report his conviction and the determination by the overseas regulator and therefore a finding of impairment is imperative The Relevant Legal Principles 11 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 Tribunalrsquos judgement alone 12 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 and then whether the finding of that misconduct which was serious could lead to a finding of impairment 13 The Tribunal must determine whether Dr Mukherjeersquos fitness to practise is impaired today taking into account his 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 It was also mindful of the overarching objective as set out in Section 1(A) of the Medical Act and the importance of promoting and maintaining public confidence in the profession and proper standards of conduct 14 The Tribunal also took account of the case of Remedy UK Ltd v GMC (2010) EWHC 1245 (Admin) which described misconduct of two principal kinds

a sufficiently serious misconduct in the exercise of professional practice such that it can be properly described as misconduct going to fitness to practise b conduct of a morally culpable or otherwise disgraceful kind which may and often will occur outwith the course of professional practice itself but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 13

The Tribunalrsquos Determination on Impairment Misconduct 15 The Tribunal took account of paragraphs 1 and 75 in GMP as stated above 16 The Tribunal noted that Dr Mukherjee was convicted of two counts of mischief and one count of uttering threats The Tribunal considered the behaviour which led to Dr Mukherjeersquos conviction in that his offences occurred in the context of a dysfunctional relationship and included threats of violence against the complainant The Tribunal noted that in his email dated 15 March 2015 Dr Mukherjee accepted that the relationship with the complainant was toxic 17 The Tribunal is in agreement with the College of Physicians and Surgeons of Ontario (the CPSO) determination that Dr Mukherjee demonstrated disgraceful and outrageous behaviour 18 The Tribunal also noted the comments from Justice Robert G Selkirk who stated in his sentencing remarks

lsquo hellipit is fair to describe these events as acts of domestic violence which the Courts have always wanted to denounce and deterrsquo

19 The Tribunal considered that Dr Mukherjeersquos behaviour demonstrated sustained misconduct in the context of a domestic relationship over a period of months in 2013 The Tribunal has taken into account that Dr Mukherjeersquos offences were against a female and it was mindful that he works in obstetrics and gynaecology his primary patients being female 20 The Tribunal next considered Dr Mukherjeersquos failure to notify the GMC of his conviction without delay The Tribunal noted paragraph 75 as stated above and paragraph 3 of GMP Paragraph 3 states

lsquo3 Good medical practice describes what is expected of all doctors registered with the General Medical Council (GMC) It is your responsibility to be familiar with Good medical practice and the explanatory guidancedagger which supports it and to follow the guidance they containrsquo

21 The Tribunal is of the opinion that from 2013 onwards Dr Mukherjee had the opportunity to inform the GMC of the Canadian Police investigation and he must have realised at some time that he had a duty to do so especially following his conviction and sentence in 2015 The Tribunal determined that Dr Mukherjeersquos conduct demonstrated flagrant breaches of the principles in paragraphs 3 and 75 of GMP in that he failed to report his conviction to the GMC over an extended period when he should have known had a duty to do so

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 14

22 The Tribunal considered that Dr Mukherjeersquos conduct represented a significant departure from the expected standards of conduct and behaviour of a doctor as set out in paragraphs 1 3 and 75 of GMP 23 The Tribunal concluded that Dr Mukherjeersquos conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct Determination by a Regulatory Body 24 In considering whether Dr Mukherjeersquos fitness to practise is impaired by the determination by another regulatory body in this case the Tribunal has regard to section 35C(2) of the Medical Act which states

lsquoA personrsquos fitness to practise shall be regarded as ldquoimpairedrdquo for the purposes of this Act by reason only of ndash hellip

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired or a determination by a regulatory body elsewhere to the same effectrsquo

25 Section 35C(3) provides that an allegation may be based on a matter that is alleged to have occurred outside the United Kingdom 26 Section 35(C)(9) provides

lsquohelliprdquoregulatory bodyrdquo means a regulatory body which has the function of authorising persons to practise as a member of health or social care professionhelliprsquo

27 The Tribunal was satisfied that on 4 March 2019 the College of Physicians and Surgeons of Ontario (CPOS) in Canada made a determination against Dr Mukherjee and imposed a suspension for a period of six months Impairment 28 The Tribunal having found that the facts proved in relation to paragraphs 1 and 2 of the Allegation amounted to misconduct went on to consider whether as a result of that misconduct Dr Mukherjeersquos fitness to practise is currently impaired The Tribunal also considered whether the regulatory determination as found proved in paragraph 3 of the Allegation impaired his current fitness to practise

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 15

29 The Tribunal took account of Dr Mukherjeersquos personal remediation in relation to his convictions It noted that as part of his sentencing Dr Mukherjee completed a course on domestic violence Dr Mukherjee has also completed the courses lsquoPartner Assault Response Program aka Living Without Violencersquo and lsquoUnderstanding Boundariesrsquo XXX 30 Dr Mukherjee also worked with a workplace mentor at the Hospital on a monthly basis to discuss and review his conduct and interpersonal performance in the workplace 31 The Tribunal took account of Dr Mukherjeersquos statement in his email dated 4 August 2019 which states

lsquoI had submitted detailed statements to the IOT in April 2018 amp March 2019 pertaining to this single isolated incident related to personal domestic issue NOT involving any patients which started as a workplace affair starting in February 2012 terminating in Jan 2014 relationship was toxic and deteriorated as the time progressed leaving permanent ramifications affecting my career family self respect and my self confidence I am most remorseful repentant apologetic and ashamed of my behaviour and over these long period of six years I have worked in a constructive way with self analysis projected learning and reevaluation of various aspects of my life in a positive way Attending and successfully completing courses inclusive of the 1Boundaries Course at the Western University in London Ontario 2 Partner Assault Program which lasted for a period of 10 weeks 3[XXX] as were recommended by the Honble Court and by the CPSO I am also planning to attend Anger Management Course in Ottawa starting October 2019 this has been arranged by CMPA with consent and approval from CPSO In addition as recommended by the Hospital authorities XXX also confirmed that I was safe was allowed to continue with full clinical practice administrative responsibility as the Chief of Obstetrics amp Gynaecolgy and academic responsibility as Clinical Lecturer with the Ottawa Universityrsquo

32 The Tribunal noted that within a month of the CPSO determination on the 4 March 2019 (which included a six monthsrsquo suspension from practising in Canada) Dr Mukherjee started a job as a doctor in the UK on 10 April 2019 although it also noted that the GMC has not brought any allegation in relation to this 33 The Tribunal has not been made aware of any other disciplinary findings against Dr Mukherjee The Tribunal acknowledges that whilst Dr Mukherjee has made

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 16

expressions of remorse and sorrow which were directed towards the impact on himself his family and career he appears to lack sufficient insight into the impact on the complainant 34 The Tribunal considered that Dr Mukherjee has remediated his personal failings to a significant extent Nevertheless the Tribunal found that even though Dr Mukherjee has developed some insight and remediated his personal misconduct a finding of impairment is necessary in order to uphold proper standards and maintain public confidence in the profession consistent with the overarching objective The Tribunal was mindful that doctors occupy a position of privilege and trust and are expected to act in a manner which maintains public confidence in them and in the medical profession and to uphold proper standards of conduct 35 The Tribunal is in no doubt that public confidence in the medical profession and the need to uphold proper standards for that profession would be adversely affected if it were not to make a finding of impairment in this case The Tribunal has therefore determined that Dr Mukherjeersquos fitness to practise is currently impaired by reason of misconduct and the determination by an overseas regulator Determination on Sanction - 18032020 1 Having determined that Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by an overseas body the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction if any to impose Submissions 2 On behalf of the GMC Ms Jones reminded the Tribunal that the offences for which Dr Mukherjee received a conditional discharge were serious She acknowledged that the offences occurred some time ago in 2013 and there have been no further incidents She also acknowledged that Dr Mukherjee has remediated his misconduct and has expressed remorse at his behaviour 3 Ms Jones submitted that a sanction of suspension is appropriate in this case She referred the Tribunal to Sanctions Guidance (November 2019) (the SG) 4 Ms Jones acknowledged that Dr Mukherjee has developing insight and that there had been a passage of time since Dr Mukherjeersquos offences occurred In relation to remediation Ms Jones referred the Tribunal to paragraph 31 which states

rsquo31 Remediation is where a doctor addresses concerns about their knowledge skills conduct or behaviour Remediation can take a number of

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 17

forms including coaching mentoring training and rehabilitation (this list is not exhaustive) and where fully successful will make impairment unlikelyrsquo

5 In relation to insight Ms Jones referred the Tribunal to paragraphs 45 and 46 of the SG which state

rsquo45 Expressing insight involves demonstrating reflection and remediation 46 A doctor is likely to have insight if they

a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31ndash33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearingrsquo

6 Ms Jones referred the Tribunal to paragraph 56d of the SG which states rsquo56 Tribunals are also likely to take more serious action where certain conduct arises in a doctorrsquos personal life such as (this list is not exhaustive) hellip

d misconduct involving violence or offences of a sexual nature (see paragraphs 149ndash150) helliprsquo

7 Ms Jones reminded the Tribunal that Dr Mukherjeersquos behaviour amounted to domestic violence and the text messages he sent to the complainant were somewhat sinister She submitted that this case is too serious for the Tribunal to take no action or to impose conditions on Dr Mukherjeersquos registration Ms Jones further submitted that Dr Mukherjeersquos misconduct including his failure to inform the GMC of his conviction was so serious that it calls for a period of suspension She referred the Tribunal to paragraph 92 of the SG which states

lsquo92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)rsquo

8 Ms Jones submitted that the GMC consider that Dr Mukherjeersquos misconduct is very serious but falls short of incompatibility with continued registration She accepted that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 13: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 13

The Tribunalrsquos Determination on Impairment Misconduct 15 The Tribunal took account of paragraphs 1 and 75 in GMP as stated above 16 The Tribunal noted that Dr Mukherjee was convicted of two counts of mischief and one count of uttering threats The Tribunal considered the behaviour which led to Dr Mukherjeersquos conviction in that his offences occurred in the context of a dysfunctional relationship and included threats of violence against the complainant The Tribunal noted that in his email dated 15 March 2015 Dr Mukherjee accepted that the relationship with the complainant was toxic 17 The Tribunal is in agreement with the College of Physicians and Surgeons of Ontario (the CPSO) determination that Dr Mukherjee demonstrated disgraceful and outrageous behaviour 18 The Tribunal also noted the comments from Justice Robert G Selkirk who stated in his sentencing remarks

lsquo hellipit is fair to describe these events as acts of domestic violence which the Courts have always wanted to denounce and deterrsquo

19 The Tribunal considered that Dr Mukherjeersquos behaviour demonstrated sustained misconduct in the context of a domestic relationship over a period of months in 2013 The Tribunal has taken into account that Dr Mukherjeersquos offences were against a female and it was mindful that he works in obstetrics and gynaecology his primary patients being female 20 The Tribunal next considered Dr Mukherjeersquos failure to notify the GMC of his conviction without delay The Tribunal noted paragraph 75 as stated above and paragraph 3 of GMP Paragraph 3 states

lsquo3 Good medical practice describes what is expected of all doctors registered with the General Medical Council (GMC) It is your responsibility to be familiar with Good medical practice and the explanatory guidancedagger which supports it and to follow the guidance they containrsquo

21 The Tribunal is of the opinion that from 2013 onwards Dr Mukherjee had the opportunity to inform the GMC of the Canadian Police investigation and he must have realised at some time that he had a duty to do so especially following his conviction and sentence in 2015 The Tribunal determined that Dr Mukherjeersquos conduct demonstrated flagrant breaches of the principles in paragraphs 3 and 75 of GMP in that he failed to report his conviction to the GMC over an extended period when he should have known had a duty to do so

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 14

22 The Tribunal considered that Dr Mukherjeersquos conduct represented a significant departure from the expected standards of conduct and behaviour of a doctor as set out in paragraphs 1 3 and 75 of GMP 23 The Tribunal concluded that Dr Mukherjeersquos conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct Determination by a Regulatory Body 24 In considering whether Dr Mukherjeersquos fitness to practise is impaired by the determination by another regulatory body in this case the Tribunal has regard to section 35C(2) of the Medical Act which states

lsquoA personrsquos fitness to practise shall be regarded as ldquoimpairedrdquo for the purposes of this Act by reason only of ndash hellip

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired or a determination by a regulatory body elsewhere to the same effectrsquo

25 Section 35C(3) provides that an allegation may be based on a matter that is alleged to have occurred outside the United Kingdom 26 Section 35(C)(9) provides

lsquohelliprdquoregulatory bodyrdquo means a regulatory body which has the function of authorising persons to practise as a member of health or social care professionhelliprsquo

27 The Tribunal was satisfied that on 4 March 2019 the College of Physicians and Surgeons of Ontario (CPOS) in Canada made a determination against Dr Mukherjee and imposed a suspension for a period of six months Impairment 28 The Tribunal having found that the facts proved in relation to paragraphs 1 and 2 of the Allegation amounted to misconduct went on to consider whether as a result of that misconduct Dr Mukherjeersquos fitness to practise is currently impaired The Tribunal also considered whether the regulatory determination as found proved in paragraph 3 of the Allegation impaired his current fitness to practise

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 15

29 The Tribunal took account of Dr Mukherjeersquos personal remediation in relation to his convictions It noted that as part of his sentencing Dr Mukherjee completed a course on domestic violence Dr Mukherjee has also completed the courses lsquoPartner Assault Response Program aka Living Without Violencersquo and lsquoUnderstanding Boundariesrsquo XXX 30 Dr Mukherjee also worked with a workplace mentor at the Hospital on a monthly basis to discuss and review his conduct and interpersonal performance in the workplace 31 The Tribunal took account of Dr Mukherjeersquos statement in his email dated 4 August 2019 which states

lsquoI had submitted detailed statements to the IOT in April 2018 amp March 2019 pertaining to this single isolated incident related to personal domestic issue NOT involving any patients which started as a workplace affair starting in February 2012 terminating in Jan 2014 relationship was toxic and deteriorated as the time progressed leaving permanent ramifications affecting my career family self respect and my self confidence I am most remorseful repentant apologetic and ashamed of my behaviour and over these long period of six years I have worked in a constructive way with self analysis projected learning and reevaluation of various aspects of my life in a positive way Attending and successfully completing courses inclusive of the 1Boundaries Course at the Western University in London Ontario 2 Partner Assault Program which lasted for a period of 10 weeks 3[XXX] as were recommended by the Honble Court and by the CPSO I am also planning to attend Anger Management Course in Ottawa starting October 2019 this has been arranged by CMPA with consent and approval from CPSO In addition as recommended by the Hospital authorities XXX also confirmed that I was safe was allowed to continue with full clinical practice administrative responsibility as the Chief of Obstetrics amp Gynaecolgy and academic responsibility as Clinical Lecturer with the Ottawa Universityrsquo

32 The Tribunal noted that within a month of the CPSO determination on the 4 March 2019 (which included a six monthsrsquo suspension from practising in Canada) Dr Mukherjee started a job as a doctor in the UK on 10 April 2019 although it also noted that the GMC has not brought any allegation in relation to this 33 The Tribunal has not been made aware of any other disciplinary findings against Dr Mukherjee The Tribunal acknowledges that whilst Dr Mukherjee has made

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 16

expressions of remorse and sorrow which were directed towards the impact on himself his family and career he appears to lack sufficient insight into the impact on the complainant 34 The Tribunal considered that Dr Mukherjee has remediated his personal failings to a significant extent Nevertheless the Tribunal found that even though Dr Mukherjee has developed some insight and remediated his personal misconduct a finding of impairment is necessary in order to uphold proper standards and maintain public confidence in the profession consistent with the overarching objective The Tribunal was mindful that doctors occupy a position of privilege and trust and are expected to act in a manner which maintains public confidence in them and in the medical profession and to uphold proper standards of conduct 35 The Tribunal is in no doubt that public confidence in the medical profession and the need to uphold proper standards for that profession would be adversely affected if it were not to make a finding of impairment in this case The Tribunal has therefore determined that Dr Mukherjeersquos fitness to practise is currently impaired by reason of misconduct and the determination by an overseas regulator Determination on Sanction - 18032020 1 Having determined that Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by an overseas body the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction if any to impose Submissions 2 On behalf of the GMC Ms Jones reminded the Tribunal that the offences for which Dr Mukherjee received a conditional discharge were serious She acknowledged that the offences occurred some time ago in 2013 and there have been no further incidents She also acknowledged that Dr Mukherjee has remediated his misconduct and has expressed remorse at his behaviour 3 Ms Jones submitted that a sanction of suspension is appropriate in this case She referred the Tribunal to Sanctions Guidance (November 2019) (the SG) 4 Ms Jones acknowledged that Dr Mukherjee has developing insight and that there had been a passage of time since Dr Mukherjeersquos offences occurred In relation to remediation Ms Jones referred the Tribunal to paragraph 31 which states

rsquo31 Remediation is where a doctor addresses concerns about their knowledge skills conduct or behaviour Remediation can take a number of

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 17

forms including coaching mentoring training and rehabilitation (this list is not exhaustive) and where fully successful will make impairment unlikelyrsquo

5 In relation to insight Ms Jones referred the Tribunal to paragraphs 45 and 46 of the SG which state

rsquo45 Expressing insight involves demonstrating reflection and remediation 46 A doctor is likely to have insight if they

a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31ndash33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearingrsquo

6 Ms Jones referred the Tribunal to paragraph 56d of the SG which states rsquo56 Tribunals are also likely to take more serious action where certain conduct arises in a doctorrsquos personal life such as (this list is not exhaustive) hellip

d misconduct involving violence or offences of a sexual nature (see paragraphs 149ndash150) helliprsquo

7 Ms Jones reminded the Tribunal that Dr Mukherjeersquos behaviour amounted to domestic violence and the text messages he sent to the complainant were somewhat sinister She submitted that this case is too serious for the Tribunal to take no action or to impose conditions on Dr Mukherjeersquos registration Ms Jones further submitted that Dr Mukherjeersquos misconduct including his failure to inform the GMC of his conviction was so serious that it calls for a period of suspension She referred the Tribunal to paragraph 92 of the SG which states

lsquo92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)rsquo

8 Ms Jones submitted that the GMC consider that Dr Mukherjeersquos misconduct is very serious but falls short of incompatibility with continued registration She accepted that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 14: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 14

22 The Tribunal considered that Dr Mukherjeersquos conduct represented a significant departure from the expected standards of conduct and behaviour of a doctor as set out in paragraphs 1 3 and 75 of GMP 23 The Tribunal concluded that Dr Mukherjeersquos conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct Determination by a Regulatory Body 24 In considering whether Dr Mukherjeersquos fitness to practise is impaired by the determination by another regulatory body in this case the Tribunal has regard to section 35C(2) of the Medical Act which states

lsquoA personrsquos fitness to practise shall be regarded as ldquoimpairedrdquo for the purposes of this Act by reason only of ndash hellip

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired or a determination by a regulatory body elsewhere to the same effectrsquo

25 Section 35C(3) provides that an allegation may be based on a matter that is alleged to have occurred outside the United Kingdom 26 Section 35(C)(9) provides

lsquohelliprdquoregulatory bodyrdquo means a regulatory body which has the function of authorising persons to practise as a member of health or social care professionhelliprsquo

27 The Tribunal was satisfied that on 4 March 2019 the College of Physicians and Surgeons of Ontario (CPOS) in Canada made a determination against Dr Mukherjee and imposed a suspension for a period of six months Impairment 28 The Tribunal having found that the facts proved in relation to paragraphs 1 and 2 of the Allegation amounted to misconduct went on to consider whether as a result of that misconduct Dr Mukherjeersquos fitness to practise is currently impaired The Tribunal also considered whether the regulatory determination as found proved in paragraph 3 of the Allegation impaired his current fitness to practise

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 15

29 The Tribunal took account of Dr Mukherjeersquos personal remediation in relation to his convictions It noted that as part of his sentencing Dr Mukherjee completed a course on domestic violence Dr Mukherjee has also completed the courses lsquoPartner Assault Response Program aka Living Without Violencersquo and lsquoUnderstanding Boundariesrsquo XXX 30 Dr Mukherjee also worked with a workplace mentor at the Hospital on a monthly basis to discuss and review his conduct and interpersonal performance in the workplace 31 The Tribunal took account of Dr Mukherjeersquos statement in his email dated 4 August 2019 which states

lsquoI had submitted detailed statements to the IOT in April 2018 amp March 2019 pertaining to this single isolated incident related to personal domestic issue NOT involving any patients which started as a workplace affair starting in February 2012 terminating in Jan 2014 relationship was toxic and deteriorated as the time progressed leaving permanent ramifications affecting my career family self respect and my self confidence I am most remorseful repentant apologetic and ashamed of my behaviour and over these long period of six years I have worked in a constructive way with self analysis projected learning and reevaluation of various aspects of my life in a positive way Attending and successfully completing courses inclusive of the 1Boundaries Course at the Western University in London Ontario 2 Partner Assault Program which lasted for a period of 10 weeks 3[XXX] as were recommended by the Honble Court and by the CPSO I am also planning to attend Anger Management Course in Ottawa starting October 2019 this has been arranged by CMPA with consent and approval from CPSO In addition as recommended by the Hospital authorities XXX also confirmed that I was safe was allowed to continue with full clinical practice administrative responsibility as the Chief of Obstetrics amp Gynaecolgy and academic responsibility as Clinical Lecturer with the Ottawa Universityrsquo

32 The Tribunal noted that within a month of the CPSO determination on the 4 March 2019 (which included a six monthsrsquo suspension from practising in Canada) Dr Mukherjee started a job as a doctor in the UK on 10 April 2019 although it also noted that the GMC has not brought any allegation in relation to this 33 The Tribunal has not been made aware of any other disciplinary findings against Dr Mukherjee The Tribunal acknowledges that whilst Dr Mukherjee has made

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 16

expressions of remorse and sorrow which were directed towards the impact on himself his family and career he appears to lack sufficient insight into the impact on the complainant 34 The Tribunal considered that Dr Mukherjee has remediated his personal failings to a significant extent Nevertheless the Tribunal found that even though Dr Mukherjee has developed some insight and remediated his personal misconduct a finding of impairment is necessary in order to uphold proper standards and maintain public confidence in the profession consistent with the overarching objective The Tribunal was mindful that doctors occupy a position of privilege and trust and are expected to act in a manner which maintains public confidence in them and in the medical profession and to uphold proper standards of conduct 35 The Tribunal is in no doubt that public confidence in the medical profession and the need to uphold proper standards for that profession would be adversely affected if it were not to make a finding of impairment in this case The Tribunal has therefore determined that Dr Mukherjeersquos fitness to practise is currently impaired by reason of misconduct and the determination by an overseas regulator Determination on Sanction - 18032020 1 Having determined that Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by an overseas body the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction if any to impose Submissions 2 On behalf of the GMC Ms Jones reminded the Tribunal that the offences for which Dr Mukherjee received a conditional discharge were serious She acknowledged that the offences occurred some time ago in 2013 and there have been no further incidents She also acknowledged that Dr Mukherjee has remediated his misconduct and has expressed remorse at his behaviour 3 Ms Jones submitted that a sanction of suspension is appropriate in this case She referred the Tribunal to Sanctions Guidance (November 2019) (the SG) 4 Ms Jones acknowledged that Dr Mukherjee has developing insight and that there had been a passage of time since Dr Mukherjeersquos offences occurred In relation to remediation Ms Jones referred the Tribunal to paragraph 31 which states

rsquo31 Remediation is where a doctor addresses concerns about their knowledge skills conduct or behaviour Remediation can take a number of

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 17

forms including coaching mentoring training and rehabilitation (this list is not exhaustive) and where fully successful will make impairment unlikelyrsquo

5 In relation to insight Ms Jones referred the Tribunal to paragraphs 45 and 46 of the SG which state

rsquo45 Expressing insight involves demonstrating reflection and remediation 46 A doctor is likely to have insight if they

a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31ndash33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearingrsquo

6 Ms Jones referred the Tribunal to paragraph 56d of the SG which states rsquo56 Tribunals are also likely to take more serious action where certain conduct arises in a doctorrsquos personal life such as (this list is not exhaustive) hellip

d misconduct involving violence or offences of a sexual nature (see paragraphs 149ndash150) helliprsquo

7 Ms Jones reminded the Tribunal that Dr Mukherjeersquos behaviour amounted to domestic violence and the text messages he sent to the complainant were somewhat sinister She submitted that this case is too serious for the Tribunal to take no action or to impose conditions on Dr Mukherjeersquos registration Ms Jones further submitted that Dr Mukherjeersquos misconduct including his failure to inform the GMC of his conviction was so serious that it calls for a period of suspension She referred the Tribunal to paragraph 92 of the SG which states

lsquo92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)rsquo

8 Ms Jones submitted that the GMC consider that Dr Mukherjeersquos misconduct is very serious but falls short of incompatibility with continued registration She accepted that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 15: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 15

29 The Tribunal took account of Dr Mukherjeersquos personal remediation in relation to his convictions It noted that as part of his sentencing Dr Mukherjee completed a course on domestic violence Dr Mukherjee has also completed the courses lsquoPartner Assault Response Program aka Living Without Violencersquo and lsquoUnderstanding Boundariesrsquo XXX 30 Dr Mukherjee also worked with a workplace mentor at the Hospital on a monthly basis to discuss and review his conduct and interpersonal performance in the workplace 31 The Tribunal took account of Dr Mukherjeersquos statement in his email dated 4 August 2019 which states

lsquoI had submitted detailed statements to the IOT in April 2018 amp March 2019 pertaining to this single isolated incident related to personal domestic issue NOT involving any patients which started as a workplace affair starting in February 2012 terminating in Jan 2014 relationship was toxic and deteriorated as the time progressed leaving permanent ramifications affecting my career family self respect and my self confidence I am most remorseful repentant apologetic and ashamed of my behaviour and over these long period of six years I have worked in a constructive way with self analysis projected learning and reevaluation of various aspects of my life in a positive way Attending and successfully completing courses inclusive of the 1Boundaries Course at the Western University in London Ontario 2 Partner Assault Program which lasted for a period of 10 weeks 3[XXX] as were recommended by the Honble Court and by the CPSO I am also planning to attend Anger Management Course in Ottawa starting October 2019 this has been arranged by CMPA with consent and approval from CPSO In addition as recommended by the Hospital authorities XXX also confirmed that I was safe was allowed to continue with full clinical practice administrative responsibility as the Chief of Obstetrics amp Gynaecolgy and academic responsibility as Clinical Lecturer with the Ottawa Universityrsquo

32 The Tribunal noted that within a month of the CPSO determination on the 4 March 2019 (which included a six monthsrsquo suspension from practising in Canada) Dr Mukherjee started a job as a doctor in the UK on 10 April 2019 although it also noted that the GMC has not brought any allegation in relation to this 33 The Tribunal has not been made aware of any other disciplinary findings against Dr Mukherjee The Tribunal acknowledges that whilst Dr Mukherjee has made

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 16

expressions of remorse and sorrow which were directed towards the impact on himself his family and career he appears to lack sufficient insight into the impact on the complainant 34 The Tribunal considered that Dr Mukherjee has remediated his personal failings to a significant extent Nevertheless the Tribunal found that even though Dr Mukherjee has developed some insight and remediated his personal misconduct a finding of impairment is necessary in order to uphold proper standards and maintain public confidence in the profession consistent with the overarching objective The Tribunal was mindful that doctors occupy a position of privilege and trust and are expected to act in a manner which maintains public confidence in them and in the medical profession and to uphold proper standards of conduct 35 The Tribunal is in no doubt that public confidence in the medical profession and the need to uphold proper standards for that profession would be adversely affected if it were not to make a finding of impairment in this case The Tribunal has therefore determined that Dr Mukherjeersquos fitness to practise is currently impaired by reason of misconduct and the determination by an overseas regulator Determination on Sanction - 18032020 1 Having determined that Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by an overseas body the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction if any to impose Submissions 2 On behalf of the GMC Ms Jones reminded the Tribunal that the offences for which Dr Mukherjee received a conditional discharge were serious She acknowledged that the offences occurred some time ago in 2013 and there have been no further incidents She also acknowledged that Dr Mukherjee has remediated his misconduct and has expressed remorse at his behaviour 3 Ms Jones submitted that a sanction of suspension is appropriate in this case She referred the Tribunal to Sanctions Guidance (November 2019) (the SG) 4 Ms Jones acknowledged that Dr Mukherjee has developing insight and that there had been a passage of time since Dr Mukherjeersquos offences occurred In relation to remediation Ms Jones referred the Tribunal to paragraph 31 which states

rsquo31 Remediation is where a doctor addresses concerns about their knowledge skills conduct or behaviour Remediation can take a number of

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 17

forms including coaching mentoring training and rehabilitation (this list is not exhaustive) and where fully successful will make impairment unlikelyrsquo

5 In relation to insight Ms Jones referred the Tribunal to paragraphs 45 and 46 of the SG which state

rsquo45 Expressing insight involves demonstrating reflection and remediation 46 A doctor is likely to have insight if they

a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31ndash33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearingrsquo

6 Ms Jones referred the Tribunal to paragraph 56d of the SG which states rsquo56 Tribunals are also likely to take more serious action where certain conduct arises in a doctorrsquos personal life such as (this list is not exhaustive) hellip

d misconduct involving violence or offences of a sexual nature (see paragraphs 149ndash150) helliprsquo

7 Ms Jones reminded the Tribunal that Dr Mukherjeersquos behaviour amounted to domestic violence and the text messages he sent to the complainant were somewhat sinister She submitted that this case is too serious for the Tribunal to take no action or to impose conditions on Dr Mukherjeersquos registration Ms Jones further submitted that Dr Mukherjeersquos misconduct including his failure to inform the GMC of his conviction was so serious that it calls for a period of suspension She referred the Tribunal to paragraph 92 of the SG which states

lsquo92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)rsquo

8 Ms Jones submitted that the GMC consider that Dr Mukherjeersquos misconduct is very serious but falls short of incompatibility with continued registration She accepted that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 16: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 16

expressions of remorse and sorrow which were directed towards the impact on himself his family and career he appears to lack sufficient insight into the impact on the complainant 34 The Tribunal considered that Dr Mukherjee has remediated his personal failings to a significant extent Nevertheless the Tribunal found that even though Dr Mukherjee has developed some insight and remediated his personal misconduct a finding of impairment is necessary in order to uphold proper standards and maintain public confidence in the profession consistent with the overarching objective The Tribunal was mindful that doctors occupy a position of privilege and trust and are expected to act in a manner which maintains public confidence in them and in the medical profession and to uphold proper standards of conduct 35 The Tribunal is in no doubt that public confidence in the medical profession and the need to uphold proper standards for that profession would be adversely affected if it were not to make a finding of impairment in this case The Tribunal has therefore determined that Dr Mukherjeersquos fitness to practise is currently impaired by reason of misconduct and the determination by an overseas regulator Determination on Sanction - 18032020 1 Having determined that Dr Mukherjeersquos fitness to practise is impaired by reason of misconduct and a determination by an overseas body the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction if any to impose Submissions 2 On behalf of the GMC Ms Jones reminded the Tribunal that the offences for which Dr Mukherjee received a conditional discharge were serious She acknowledged that the offences occurred some time ago in 2013 and there have been no further incidents She also acknowledged that Dr Mukherjee has remediated his misconduct and has expressed remorse at his behaviour 3 Ms Jones submitted that a sanction of suspension is appropriate in this case She referred the Tribunal to Sanctions Guidance (November 2019) (the SG) 4 Ms Jones acknowledged that Dr Mukherjee has developing insight and that there had been a passage of time since Dr Mukherjeersquos offences occurred In relation to remediation Ms Jones referred the Tribunal to paragraph 31 which states

rsquo31 Remediation is where a doctor addresses concerns about their knowledge skills conduct or behaviour Remediation can take a number of

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 17

forms including coaching mentoring training and rehabilitation (this list is not exhaustive) and where fully successful will make impairment unlikelyrsquo

5 In relation to insight Ms Jones referred the Tribunal to paragraphs 45 and 46 of the SG which state

rsquo45 Expressing insight involves demonstrating reflection and remediation 46 A doctor is likely to have insight if they

a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31ndash33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearingrsquo

6 Ms Jones referred the Tribunal to paragraph 56d of the SG which states rsquo56 Tribunals are also likely to take more serious action where certain conduct arises in a doctorrsquos personal life such as (this list is not exhaustive) hellip

d misconduct involving violence or offences of a sexual nature (see paragraphs 149ndash150) helliprsquo

7 Ms Jones reminded the Tribunal that Dr Mukherjeersquos behaviour amounted to domestic violence and the text messages he sent to the complainant were somewhat sinister She submitted that this case is too serious for the Tribunal to take no action or to impose conditions on Dr Mukherjeersquos registration Ms Jones further submitted that Dr Mukherjeersquos misconduct including his failure to inform the GMC of his conviction was so serious that it calls for a period of suspension She referred the Tribunal to paragraph 92 of the SG which states

lsquo92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)rsquo

8 Ms Jones submitted that the GMC consider that Dr Mukherjeersquos misconduct is very serious but falls short of incompatibility with continued registration She accepted that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 17: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 17

forms including coaching mentoring training and rehabilitation (this list is not exhaustive) and where fully successful will make impairment unlikelyrsquo

5 In relation to insight Ms Jones referred the Tribunal to paragraphs 45 and 46 of the SG which state

rsquo45 Expressing insight involves demonstrating reflection and remediation 46 A doctor is likely to have insight if they

a accept they should have behaved differently (showing empathy and understanding) b take timely steps to remediate (see paragraphs 31ndash33) and apologise at an early stage before the hearing c demonstrate the timely development of insight during the investigation and hearingrsquo

6 Ms Jones referred the Tribunal to paragraph 56d of the SG which states rsquo56 Tribunals are also likely to take more serious action where certain conduct arises in a doctorrsquos personal life such as (this list is not exhaustive) hellip

d misconduct involving violence or offences of a sexual nature (see paragraphs 149ndash150) helliprsquo

7 Ms Jones reminded the Tribunal that Dr Mukherjeersquos behaviour amounted to domestic violence and the text messages he sent to the complainant were somewhat sinister She submitted that this case is too serious for the Tribunal to take no action or to impose conditions on Dr Mukherjeersquos registration Ms Jones further submitted that Dr Mukherjeersquos misconduct including his failure to inform the GMC of his conviction was so serious that it calls for a period of suspension She referred the Tribunal to paragraph 92 of the SG which states

lsquo92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)rsquo

8 Ms Jones submitted that the GMC consider that Dr Mukherjeersquos misconduct is very serious but falls short of incompatibility with continued registration She accepted that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 18: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 18

Dr Mukherjee has expressed remorse and stated that there has been no repeat of the misconduct She referred the Tribunal to paragraph 97 of the SG which states

lsquo97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate

a A serious breach of Good medical practice but where the doctorrsquos misconduct is not fundamentally incompatible with their continued registration therefore complete removal from the medical register would not be in the public interest However the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors hellip e No evidence that demonstrates remediation is unlikely to be successful eg because of previous unsuccessful attempts or a doctorrsquos unwillingness to engage f No evidence of repetition of similar behaviour since incident g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviourrsquo

The Tribunalrsquos Approach 9 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 sanction is not to be punitive but to protect patients and the wider public interest although they may have a punitive effect 10 Throughout its deliberations the Tribunal has applied the principle of proportionality balancing Dr Mukherjeersquos interests with the public interest The public interest includes amongst other things the protection of patients the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour 11 The Tribunal has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction The Tribunalrsquos Determination on Sanction 12 The Tribunal considered the mitigating factors in this case The Tribunal noted that Dr Mukherjeersquos offences occurred in 2013 and there has been no repetition of the behaviour since The Tribunal considered that Dr Mukherjee has

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 19: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 19

demonstrated significant remediation by completing appropriate courses and XXX The Tribunal was satisfied that Dr Mukherjee has developed some insight and has expressed remorse Nevertheless Dr Mukherjee appears not to have fully considered or reflected on the impact of his offences on the complainant The Tribunal has noted the positive feedback from patients and he appears to have been a good clinician in both Canada and in the UK 13 Mr F Dr Mukherjeersquos Clinical Director described him as follows

lsquoConscientious hardworking and gets on well with patients and staff Since commencing his appointment with our department he has proved to be very hard working reliable and helpful when we have struggled on occasion with staffing issues hellipDr Mukherjee is an experienced OampG clinician who to the best of my knowledge is popular and well thought of within the department by medical midwifery and nursing staffrsquo

14 The Tribunal considered the aggravating factors in this case It noted that Dr Mukherjee failed to notify the GMC of his offences and conditional discharge for a considerable time The Tribunal also considered that Dr Mukherjee has not really acknowledged the extent of his offences and found his admissions were not fulsome The Tribunal considered Dr Mukherjeersquos offences were serious against a female and that he works in an area of practice where his primary patients are female The Tribunal also found that Dr Mukherjeersquos behaviour towards the complainant which led to his misconduct was sustained over a period of time No Action 15 The Tribunal is of the view that there are no exceptional circumstances in which it might be justified in taking no action against Dr Mukherjeersquos registration The Tribunal determined that in view of the serious nature of the Tribunalrsquos findings on impairment it would be neither sufficient proportionate nor in the public interest to conclude this case by taking no action Conditions 16 The Tribunal next considered whether it would be sufficient to impose conditions on Dr Mukherjeersquos registration It has borne in mind that any conditions imposed would need to be appropriate proportionate workable and measurable 17 The Tribunal is of the opinion that a period of conditional registration would not adequately reflect the serious nature of Dr Mukherjeersquos offences which led to his misconduct nor in a case involving domestic violence albeit some time ago could conditions be devised that would protect the public interest and maintain public confidence in the medical profession The Tribunal has therefore determined that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 20: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 20

it would not be sufficient to direct the imposition of conditions on Dr Mukherjeersquos registration Suspension 18 The Tribunal then went on to consider whether suspending Dr Mukherjeersquos registration would be appropriate and proportionate The Tribunal noted that suspension has a deterrent effect and can be used to send out a signal to the doctor the profession and public about what is regarded as behaviour unbefitting a registered doctor Further suspension from the medical register also has a punitive effect in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension although this is not its intention

19 The Tribunal was satisfied that Dr Mukherjeersquos misconduct was so serious that action must be taken to maintain public confidence in the profession Dr Mukherjeersquos actions were a serious breach of the principles in Good Medical Practice However it considered that Dr Mukherjeersquos misconduct was not fundamentally incompatible with his continued registration therefore complete removal from the medical register would not be in the public interest Furthermore the Tribunal was satisfied that Dr Mukherjeersquos breach was serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors Accordingly the Tribunal determined to suspend Dr Mukherjeersquos registration for a period of four months 20 In determining the period of four months whilst the Tribunal accepted that Dr Mukherjee has remediated his behaviour and there has been no repetition of the misconduct it considered that four months was sufficient to give him the opportunity to develop full insight and to reflect on his misconduct It also considered that a four-month suspension will send a signal to Dr Mukherjee the profession and public about what is regarded as behaviour unbefitting of a registered doctor whilst not depriving the public of a clinically competent doctor for longer than necessary 21 The Tribunal considered erasure but determined that it was not appropriate or proportionate in this case 22 The Tribunal considered whether it was appropriate to direct a review of Dr Mukherjeersquos case It noted that in some misconduct cases it may be self-evident that following a short suspension there will be no value in a review hearing The Tribunal was satisfied that this is such a case and determined that a review was not appropriate given the extensive evidence of Dr Mukherjeersquos remediation he is currently working and has been described by his Clinical Director as a good practitioner The Tribunal considered that the length of suspension was sufficient to mark the gravity of Dr Mukherjeersquos misconduct The Tribunal has borne in mind that

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 21: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 21

Dr Mukherjee has undertaken a number of remedial courses and XXX and considered that there is little else that could be achieved in terms of remediation Confirmed Date 18 March 2020 Mr James Newton-Price Chair

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so

Page 22: PUBLIC RECORD - MPTS...Mar 18, 2020  · The Canadian spelling has been retained where appropriate. This evidence included, but was not limited to: • Reasons for Judgement from Ontario

Record of Determinations ndash

Medical Practitioners Tribunal

MPT Dr MUKHERJEE 22

ANNEX A ndash 16032020

Determination on Proof of Service

1 Dr Mukherjee is neither present nor represented at these proceedings

2 The Tribunal has noted the GMC Notice of Allegation letter dated 4 February 2020 which was sent to Dr Mukherjee by email The Tribunal has noted Dr Mukherjeersquos response in an email dated 4 February 2020 in which he confirmed that he is aware of todayrsquos hearing and stated that he will not be present or represented today

3 The Tribunal also noted the MPTS Notice of Hearing letter dated 5 February 2020 sent by recorded delivery to Dr Mukherjeersquos registered address This letter was also sent to Dr Mukherjee by email

4 On 5 February 2020 Dr Mukherjee replied to the MPTS by email in which he confirmed he would not be present or represented today

5In the circumstances the Tribunal is satisfied that notice of this hearing has been properly served in accordance with Rules 20 and 40 of the GMC (Fitness to Practise) Rules 2004

ANNEX B ndash 16032020

Determination on Proceeding in Absence - 16 March 2020

1 The Tribunal has noted Dr Mukherjeersquos email to the GMC dated 4 February 2020 and his email to the MPTS dated 5 February 2020 In both emails Dr Mukherjee stated that he will not be attending the hearing and will not be represented Dr Mukherjee also confirmed that he did not wish to attend the hearing by video link but has provided written submissions

2 The Tribunal has noted that Dr Mukherjee did not request a postponement of the hearing in his email and has decided not to attend The Tribunal has borne in mind that were it to adjourn todayrsquos hearing there is no indication that Dr Mukherjee would be more likely to attend a future hearing Given that Dr Mukherjee is aware of the hearing and has stated that he has decided not to attend the Tribunal determined that the public interest would be best served by proceeding with the hearing in his absence today in accordance with Rule 31 of the General Medical Council (Fitness to Practise Rules) 2004 as amended and that no injustice would arise to any party through its doing so