In the matter of Dr Valerie Murphy (6104053): Submissions to the Professional Standards Authority

INTRODUCTION

1. These submissions are filed on behalf of the family of Connor Sparrowhawk (‘Patient A’). The family invite the Professional Standards Authority (‘PSA’) to refer the decision of the Medical Practitioners Tribunal (‘MPT’) of 21 February 2018, as to the appropriate sanction for Dr Valerie Murphy after the finding of impairment in her fitness to practice following Connor’s death, to the High Court. The family are aware that the PSA has already requested further information from the regulator in this case and will be conducting a detailed case review.

2. The submissions are filed further to the letter to the PSA from Bindmans LLP dated 7 March 2018. In response to this letter, the PSA confirmed that material provided within 14 days would be considered as part of the detailed case review. The submissions deal with the matters requested at para 2.19 of the PSA’s guidance, in particular ‘An explanation of why the matter is being drawn to the Authority’s attention’.

3. These submissions are also copied to the GMC which can appeal the decision of the MPT. The family would urge the GMC to appeal if the PSA decides not to refer this case.

4. In summary the family submit that the sanction of 12 months suspension for Dr Murphy was manifestly inadequate in all the circumstances and that the only lawful, proportionate and appropriate sanction in her case was erasure from the register.

SUBMISSIONS

5. Section 29 of the NHS Reform and Health Care Professions Act 2002 allows the PSA to refer any relevant decision to the High Court if it considers that the decision is not sufficient for the protection of the public. The PSA Process and Guidelines document (June 2016) states at para 2.5 that: 
‘Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient to protect the health, safety and well-being of the public, whether it is sufficient to maintain public confidence in the profession concerned, and whether it is sufficient to maintain proper professional standards and conduct for members of that profession’.

6. The family submit that the MPT decision of 21 February 2018 fails all three limbs of this test.

Sufficient to protect the health, safety and well-being of the public

7. The MPT made a finding (para 21) that ‘The outcome of your failings in this case was catastrophic and resulted in the death of a vulnerable patient’. It is therefore plain that Dr Murphy poses a significant risk to the health, safety and well-being of disabled people who may find themselves in her care. There was nothing before the MPT to demonstrate that Dr Murphy had taken significant steps to remedy the flaws in her practice in the intervening period since Connor’s death. Nor was there any reasonable basis for the MPT to presume that a further period of one year would allow remedial steps to be taken. The extensive failures in Dr Murphy’s care over a three month period across a range of areas (risk assessment, patient communication issues, capacity assessment and record keeping) demonstrate that the need to protect the health, safety and well-being of the public mandates that she should be prevented from practicing again as a doctor.

Sufficient to maintain public confidence

8. The PSA will be aware that there has been very significant public concern about the limited sanction imposed on Dr Murphy by the MPT. A large section of the public who have a particular interest in the rights of people with learning disabilities have communicated this concern, both to the family via social media and directly to the PSA. We submit that the need to maintain public confidence alone is sufficient to have the sanction imposed on Dr Murphy reviewed by the High Court. This is a case where the only sanction open to the Tribunal to maintain public confidence in the medical profession was erasure.

Sufficient to maintain proper professional standards and conduct

9. We submit that it is difficult to imagine a case where the conduct of a medical professional fell further below the expected standards of a medical professional than Dr Murphy’s case. The fitness to practice decision recites a litany of failures in care which are summarised in the sanction decision. A 12 month suspension is in no way sufficient to ensure that proper standards and conduct by doctors are maintained. These were not isolated or one-off failings by Dr Murphy but extended over a significant period. Furthermore we note that a recent challenge by a doctor to erasure following two incidents of sexual assault in the space of two hours when there were no other complaints against him failed in the High Court, such that it is plain that there is in fact no need for a lengthy period of unacceptable conduct such as is present in Dr Murphy’s case to justify erasure (see Mohammed v GMC, judgment of Yip J, 14 March 2018). See further Hussein v GPC [2018] EWCA Civ 22, where the Court of Appeal upheld an erasure decision in relation to a single incident of a pharmacist supplying a prescription-only medicine without a valid prescription.

Flaws in approach by Tribunal

10.We further invite the PSA to act in response to the serious concern as to the unacceptable and discriminatory approach by the MPT to the alleged mitigating factors in Dr Murphy’s case. Of the six alleged mitigating factors identified, two were expressly related to what was said to be the ‘difficult’ and ‘extremely challenging’ work Dr Murphy was required to undertake with patients with learning disabilities.

11.Firstly, it is not accepted that medical care of people with learning disabilities is necessarily any more ‘difficult’ or ‘challenging’ than with other population groups. Secondly and most fundamentally, even if this cohort of patients can be objectively demonstrated to be more ‘difficult’ or ‘challenging’ than others, this is no way constitutes an excuse or mitigating factor for the provision of seriously sub-standard care to them. The objective difficulty of the task facing a clinician will be relevant at the impairment stage; it is hard if not impossible to see how it can be relevant at the sanction stage, once it has been established that the clinician’s conduct has fallen significantly below the required standard.

12.This approach by the MPT embodies direct discrimination and / or discrimination arising from disability contrary to the Equality Act 2010. The MPT’s decision treats the fact that the patient was a person with a learning disability as a mitigating factor in the provision of sub-standard care to him. It is essential that the High Court reviews this case in order to give guidance to the MPT to avoid such discriminatory approaches to cases involving disabled people in future.

13.Furthermore we submit that all the remaining alleged mitigating factors for Dr Murphy identified by the MPT at para 22 of the sanction decision lack any substance:

a) Dr Murphy’s very belated acceptance of the MPT’s criticisms and findings of fact does not provide any form of substantive mitigation for her earlier conduct, particularly given her repeated denial of any form of responsibility at earlier stages and over a period of several years.

b) More importantly still, the purported expression of regret and apology by Dr Murphy comes far too late in the day to provide any meaningful mitigation. It was clearly and transparently intended as a device to convince the MPT to impose a lesser sanction than erasure, and indeed succeeded in its purpose. An apology which the MPT found had not been made ‘directly to Patient A’s mother and family’ is worthless. Dr Murphy’s instructions to her counsel to extensively cross-examine Dr Ryan are far more reflective of her true position than this belated and generalised ‘apology’. The findings by the MPT at paras 25-26 in the sanctions decision are unreasonably generous to Dr Murphy given the overall context of this case. The MPT has not properly explored how it is that Dr Murphy was capable of suddenly developing insight and remorse in the very short time between the impairment and sanctions decision when she had not been capable of doing to at any earlier point subsequent to Connor’s death.

c) The general provision of positive and supportive references does not mitigate the extensive and ‘catastrophic’ failures in the care Dr Murphy provided to Connor, particularly when there is no extensive history of practice subsequent to his death to demonstrate any real learning by Dr Murphy.

d) The absence of other adverse findings does not assist Dr Murphy where, as here, her conduct fell so significantly below the required standard and indeed over an extensive period.

e) We are entirely unclear why it should make any difference that Dr Murphy was apparently a ‘young’ consultant at the relevant time. The MPT has found that there were ‘catastrophic’ failures in her care measured against the generally accepted standards of a medic in her position. Dr Murphy was of course a specialist practitioner who chose to work in this field.

f) Even if (which is not accepted) Dr Murphy was faced with a large number of admissions, this cannot excuse the provision of such sub- standard care to Connor as the MPT found. A consultant cannot allow themselves to be ‘distracted’ from basic professional standards and competencies by any difficulties in their working environment. It is the family’s understanding that at the time of Connor’s death, Dr Murphy was the consultant psychiatrist for Slade House, which consists of two units: John Sharich House, which it is understood had 5 patients at the time of Connor’s death, and the STATT unit, which also had 5 patients, including Connor. Her evidence at the inquest was that she also provided cover at a medium secure forensic unit when their consultant was absent. It is understood that there were two admissions to Slade House during Connor’s admission. It is hoped that the PSA will be able to obtain further evidence regarding the conclusion that “Dr Murphy was faced with a large number of admissions” during the time that she was responsible for Connor’s care.

14. We further contend that the MPT failed to test the evidence submitted by Dr Murphy at the sanction stage properly or at all. For example, the MPT considering the ‘yellow card’ scheme, described at para 26 of the sanctions decision as a ‘powerful demonstration of insight’, failed to note that:

a) The relevant small group working on the scheme included Dr Murphy’s husband;

b) The group barely met; and

c) All the work of the group took place during the period in which the MPT 
found that Dr Murphy was impaired as to her insight into her responsibility for Connor’s death.

Factors relevant to PSA decision

15. We submit that the following factors identified at p10 of the PSA guidance document all point to a decision to refer in this case:

a) Dr Murphy has failed to show any remorse at a sufficiently early stage in these proceedings.

b) Any insight demonstrated by Dr Murphy has equally come far too late. The GMC correctly characterised the position before the MPT as being a ‘persistent lack of insight’ by Dr Murphy. The MPT itself held ‘your insight is regarded to be at the early stages of development’ (sanctions decision, para 27).

c) The decision merely to suspend Dr Murphy will not exert a sufficient deterrent effect on other registrants. The clear message from the MPT is that doctors can provide wholly substandard care to learning disabled patients over a significant period, resulting in their death, and escape merely with a suspension which allows them to continue to practice after a limited period. Furthermore the MPT’s decision will not deter registrants from advancing the alleged ‘difficulty’ of working with patients with learning disabilities as mitigation for their unacceptable practice in future cases.

d) For the reasons set out above the decision will not maintain public confidence in the profession.

16. It is therefore clearly arguable that the MPT’s decision is insufficient for the protection of the public. There is undoubtedly a real prospect of the High Court overturning this decision. Indeed for the reasons above it is very likely that the Court will conclude that the MPT’s decision was manifestly inappropriate, having regard to Dr Murphy’s conduct and the wider public interest. This is a case where the registrant has shown ‘blatant disregard for the safeguards designed to protect members of the public.’ In this case there were both particularly serious departures from the principles set out in Good medical practice and incompetence leading to serious harm to a patient. Dr Murphy has also show persistent lack of insight into the seriousness of her actions and their consequences. A referral by the PSA is also plainly in the public interest. As such the test for referral is clearly met in this case.

CONCLUSION

17. For all the above reasons therefore the family urge the PSA to exercise its powers to refer the sanction in Dr Murphy’s case to the High Court. As submitted by the GMC before the MPT, this case involves ‘multiple breaches of GMP relating to basic clinical care that were found by the Tribunal’. Dr Murphy’s misconduct was therefore fundamentally incompatible with her continuing registration. The MPT has singularly failed to protect the public in imposing a sanction only of a 12 month suspension.

18. It is vital to keep well in mind the essential finding of the MPT, being that Dr Murphy was directly responsible for Connor’s death. Given that it is well understood that people with learning disabilities die very significantly younger than other groups, there is a significant wider importance in the High Court reviewing whether an appropriate sanction has been imposed on the consultant who was responsible for the premature death of this young man.

Dated 21 March 2018

Dr Sara Ryan

Dr Richard Huggins

Charlotte Haworth Hird Solicitor, Bindmans LLP

Stephen Broach Barrister, Monckton Chambers