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Pleading with the Professional Standards Authority #JusticeforLB

17 Mar 2018 - 1 Comment

Having sat through the MPTS tribunal into Valerie Murphy for two weeks in August 2017, one weekend in November 2017 and three days in February 2018 I could not believe the sanction handed down, of suspension for twelve months. I was shocked at the process, the delays and opportunities that presented Murphy, and the seeming lack of critique or factual accuracy checking of her claims. There’s a 28 day period for appealing Murphy’s sanction and so finally this weekend I sat down and wrote a letter detailing my concerns to the PSA. I’ve copied it below for anyone who is interested, or who may still like to raise concerns themselves. You can email them to David Martin at the PSA here.

Dear Mr Martin,

I am writing to you to raise my concerns about the recent suspension given to Dr Valerie Murphy, GMC Reference Number 6104053. I believe that Dr Murphy should have been removed from the medical register permanently, in order for the public to have confidence in the medical profession, and its ability to uphold the standards it has set for itself.

I appreciate the judgment made is a matter for the MPTS tribunal panel, however I wish to raise my concerns about the tribunal process, Dr Murphy’s conduct within it, and offer a view on the sanction imposed, which I consider to be grossly lenient.

I was present in the public gallery throughout the public sessions, and have previously been present when Dr Murphy has given evidence in other investigations relating to the death of Connor Sparrowhawk.

I have a number of concerns relating to procedural issues of the MPTS tribunal process and the evidence that Dr Murphy provided to it. I detail them below.

Poor timetabling and unfair advantage

The MPTS hearing for Dr Murphy was originally scheduled to take place over a two week period in August 2017. Unfortunately this time allocation was insufficient for all evidence to be heard and the panel consider it so a decision was made to reconvene in November 2017 over two weekends, and then again in February 2018.

These delays in the process, as a result of poor timetabling by MPTS, have in fact benefitted Dr Murphy and allowed her to ‘perform remorse’. In August 2017 she showed no remorse, in November 2017 she showed no remorse, in February 2018 she performed partial remorse, but literally only after she had a three month period and explicit instruction by the tribunal of what they needed to see from her.

The November 2017 impairment decision stated at paragraph 69:

‘Of concern is the fact that Dr Murphy has not demonstrated insight into the gravity of the findings of facts made against her. She has not availed herself of the opportunity to put any evidence before this Tribunal at the impairment stage to show that she has considered and reflected on the findings of facts made nearly three months earlier in August 2017 which could have demonstrated real insight. In her reflective statements of 2014 and 2015 Dr Murphy appears not to recognise the extent of her failings. Even at the beginning of these proceedings in 2017, she still appeared to be looking for excuses, a position from which she has not departed significantly to date. There is a clear reluctance to admit full responsibility for her actions, as she appears to have only accepted responsibility for those parts which cannot be denied. Furthermore, the Tribunal has noted that there has been an absence of apology to Patient A’s mother and an absence of remorse for the consequences. It considers that the remorse displayed was limited to the consequences these proceedings have had upon her’.

If the tribunal had sat for sufficient time in August then Dr Murphy would not have been given additional time, and explicit instruction, of how to perform remorse to satisfy the tribunal.

It is deeply worrying that she lacked insight or recognition of her responsibilities, despite having them pointed out to her in an independent investigation conducted by Verita and published in February 2014, at Connor Sparrowhawk’s inquest in October 2015 and throughout the tribunal process.

I do not see how the public can have confidence in the decision of the MPTS tribunal when this doctor demonstrated no insight or remorse for the four years and seven months, until the final hearing in February 2018. The process had given Dr Murphy a blueprint for what they needed to see and hear, and the opportunity to provide additional evidence, testimony, character witnesses and evidence on her newfound remorse.

Even with all of this help, support and signposting Dr Murphy was still not able to fully accept her responsibilities, with the sanction decision stating at paragraph 25:

‘It is concerning that your development of insight is so late. At the beginning there was denial and defensiveness on your part. However, at the fact finding stage of these proceedings when Tribunal questions were asked, the penny started to drop regarding the identification of seizures, and your overall responsibility in Patient A’s case’

and continuing in paragraph 26:

‘You have had time to reflect since the handing down of the impairment determination in November 2017 and there now appears to be a wholehearted acceptance of your failings’.

If the MPTS process had been handled more efficiently then I think it is reasonable to suggest, given the evidence heard and behaviour demonstrated, that Dr Murphy would not have been able to perform remorse. If the tribunal had concluded within the two weeks originally timetabled, Dr Murphy would not have been given an additional six months to develop her remorse (having been given indicators of what that would need to look like) or indeed to have provided so much supplementary evidence.

Dr Murphy did not attend half of the August hearing, or attend any of the November hearing. The tribunal commented in paragraph 27 of the sanction decision:

‘At the outset of these proceedings you admitted a large part of the allegation against you but some of the admissions have come very late. The development of insight has been slow. It is surprising that the Tribunal did not hear from you at the impairment stage but it notes the evidence of your personal circumstances and understands the reasons for your absence at that stage’

continuing:

‘Your insight is regarded to be at the early stages of development. However, since the last hearing in November 2017 there appears to have been a sea change in the development of your insight. You have also demonstrated a determination to not just learn for yourself from what happened but more importantly to use your failings as a means by which others can learn and avoid repetition of what happened with Patient A. That is, in the view of this Tribunal, a matter of some importance’.

The tribunal make no reference to evidence demonstrating a ‘sea change’ and it is unclear how Dr Murphy has ‘demonstrated a determination….’. How can it possibly be appropriate to suggest that someone who it has taken almost five years to develop insight, is safe to practice as a medical professional?

Evidence and scrutiny

In my mind this raises a second procedural issue, relating to evidence and scrutiny. There are a number of examples in the tribunal decisions of them simply ‘accepting’ Dr Murphy or Mr Partridge’s suggestions that Dr Murphy now thought, felt or behaved differently. There appeared to be no real scrutiny of Dr Murphy’s words, or the quality of the evidence provided.

In the November 2017 hearing Dr Murphy provided additional evidence in the form of an audit of her hand-written notes conducted by Professor Ted Dinan (a friend and colleague of Dr Murphy) dated 30 August 2017. Prof Dinan was also invited to provide oral evidence. At no stage did the tribunal appear to question the appropriateness of this audit exercise. On questioning it became clear that Dr Murphy had made her own selection of patient records and notes, that she then took to Professor Dinan in a suitcase, and he then randomly picked from those and conducted some sort of audit and assessment.

It is unclear whether the tribunal paid any heed to this exercise or the additional ‘evidence’ it provided, but it is deeply troubling to me that Dr Murphy would:

a) have access to patient records given she apparently was not working at this time

b) would think it appropriate to carry these around in a suitcase

c) that she, or Prof Dinan, would think that this ‘audit exercise’ was in keeping with information governance rules or standards, not to mention ethics and issues relating to patient consent

d) that Prof Dinan, an expert in gut health, would be considered by himself, Dr Murphy or indeed the tribunal panel to be an appropriate person to conduct an audit relating to learning disability and mental health.

To my mind this additional evidence does nothing but raise more concerns about Dr Murphy’s fitness to practice, which the tribunal did not appear to acknowledge or address in any way.

There are many examples throughout the hearing of the MPTS tribunal panel appearing to accept Dr Murphy’s evidence at face value. I am sure that you have access to the transcripts and will be able to consider this for yourselves. Indeed it is perhaps the case that the deliberations held in private may be revealing to the PSA about the decision reached, however, it is hard to see how the public can have confidence in the decision given the evidence presented and detailed in the decisions publicly available.

One further example of this relates to the development of a ‘yellow card scheme’ that Dr Murphy claims she has developed as a result of what happened to Connor Sparrowhawk. The tribunal sanction decision refers to this scheme, referencing Dr Murphy’s oral evidence in paragraph 7:

‘In relation to the yellow card scheme, you stated that the idea behind it was your realisation, starting at the inquest, that no single person was “tying everything together” in Patient A’s case. You said that you then started to speak to different people to look at the toolkits available. You said that you realised you had to produce something which was ‘visible and easy to use’. You then spent a lot of time to get people on board with the yellow card scheme. You told the Tribunal that you organised a conference to explain your findings and you received feedback from an audit which showed that it had made a massive difference. You also received verbal feedback that showed “100% use in Cork”. You stated that the scheme is clearly working but that it still has a way to go and that it needs someone to drive it forward. You told the Tribunal that you intend to drive forward the yellow card system as you want to make it safer for patients. You explained that you tell other professionals that you failed to recognise seizure activity, that you failed to do risk assessments and that as a result a young man had died’.

There appeared to be little scrutiny given to this yellow card scheme with Dr Murphy’s evidence being accepted at face value. One panel member, Colette Neville, asked a small number of follow up questions, but otherwise this rather confused account is largely unchallenged.

In her written and oral evidence Dr Murphy repeatedly contradicted herself, on occasion claiming she had organised a conference, on another that she had in fact presented the scheme as a poster at a conference. On one occasion Dr Murphy claimed that the scheme was being used nationally across Ireland, on closer examination it appeared it was being trialled in a handful of units, six in total. Dr Murphy also claimed she was ‘driving’ this scheme, while also being on sick leave, which is concerning in its own right.

On questioning by the GMC counsel it became clear that one of the three key collaborators with Dr Murphy on this yellow card project is her husband. This was unchallenged, despite it taking about four questions for her to admit this. Another aspect unchallenged was the fact that this scheme makes use of a yellow card, which does in fact have the potential to cause considerable confusion given the existing, well embedded Medicines & Healthcare Products Regulatory Agency yellow card scheme. A further unchallenged aspect was Dr Murphy’s claims that she had received verbal feedback that it was being 100% used in Cork. This is an outrageous claim to make, with no interrogation of her claims or evidence provided to back it up.

Panel member Colette Neville asked Dr Murphy in the February 2018 hearing what she said to colleagues about the scheme. Dr Murphy claimed she said ‘she failed to recognise seizure activity, that she failed to ensure risk assessments were done and that a young man died as a result’. She went on to state ‘I thought it was important to say those words, to stress… to get it across to people’.

There was no follow up to this statement by the panel, no scrutiny or exploration of Dr Murphy’s claims. It appears incongruous that Dr Murphy would be so keen to stress her personal role and failings when talking to her colleagues, while still not even admitting them to the tribunal panel itself.

Additionally, if Dr Murphy’s claims were true then it would also seem odd that there is no reference to Connor or mention of her mistakes in any of the posters or journal articles/outlines that she has published with colleagues on this scheme.

Not to mention how inappropriate, ethically dubious and self serving it would be to devise and use such a scheme to demonstrate her ‘learning’ for a fitness to practice tribunal, without once acknowledging it to Connor’s family, or indeed asking their permission as to whether they are happy for her to use what happened to him in this way.

Despite all these concerns, unchallenged claims and lack of scrutiny the panel decision on sanction states in paragraph 26:

‘It is abundantly clear by your demeanour at this stage that you are wracked with guilt. Your drive to implement the yellow card scheme both in Ireland and in England can be viewed as a determined effort to try to put right the wrong. This in itself is a powerful demonstration of insight into the gravity of one aspect of your failings. In the particular circumstances of this case, you are not just trying to salvage your own position, but are trying to help other doctors avoid making the errors you made in your care of Patient A’.

One final observation relates to the panel member’s engagement with the process throughout the extended tribunal hearings. All panel members appeared interested and engaged in the hearings in August and November 2017 but by February 2018 it would appear that the medical tribunal member was somewhat disengaged. Dr Nitesh Raithatha did not ask a single question in public throughout the February hearing. This was at odds with his demeanour at earlier hearings. It may be completely irrelevant, but it might also be a consideration given how drawn out and extended this process was for all concerned.

Inaccuracies, dishonesty and subjective evidence

In addition to the MPTS panel’s seeming lack of scrutiny given to the evidence presented by Dr Murphy and her counsel, these rather unfortunately were set in a context of multiple inaccuracies, possible downright dishonesty and hugely subjective evidence being presented.

One example is Dr Murphy’s claims about the number of patients in her care at the time she was treating Connor Sparrowhawk. At the August hearing she claimed she had ‘about five patients in her care’ at the STATT unit. Later on she claimed her patient numbers were in double figures and that she was challenged to keep up with them on three days a week. By the February 2018 hearing she was laying claim to the ‘challenging nature’ of three patients who were out of county placements, one of which she would consider ‘extremely challenging’. She referred to the fact that they may be referred to the unit at any time of the night or day, although there arrival time is irrelevant to her practice, there was no suggestion that she would be called in during the middle of the night to work with one of these patients.

It seems an error of the MPTS tribunal process that there was no real rigorous interrogation of how Dr Murphy spent her three days working. When questioned the panel highlighted inconsistencies in Dr Murphy’s answers, yet these did not appear to be resolved.

It seems remiss of the tribunal process that at no stage did they seek records from Southern Health NHS FT that indicate the actual number of patients that Dr Murphy was responsible for.

Similarly there seems to be discrepancies between the evidence Dr Murphy has presented in previous investigations, at Connor’s inquest, and at the various tribunal hearings. Her evidence is inconsistent and on occasion she told the tribunal that she was on holiday when Connor was admitted, yet on another occasion she admitted that she thought she may have gone on holiday three days after Connor was admitted. It is hard to see how the public can have confidence in this process, or the decision reached, without definitive evidence being sought about what days Dr Murphy was working, which her former employer would hold.

Another example is that it eventually became clear through the tribunal process that Dr Murphy prescribed drugs to Connor without seeing him. This realisation on her behalf would have been quicker if additional evidence had been sought from her former employer. I am left wondering whether she is purely incompetent or deliberately dishonest and this did not appear to be addressed through the tribunal process.

There are many other examples of inaccuracies in Dr Murphy’s accounts that the tribunal do not appear to have considered or interrogated. Some of which I think it is reasonable that the public may consider to be deliberately dishonest.

For example, in the November 2017 hearing we heard from Professor Ted Dinan that he had consulted with Dr Murphy for a second opinion very recently. Later on in that session tribunal member Colette Neville double checked with Professor Dinan whether Dr Murphy was working at the moment. He replied that she was and he’d last had contact with her about a patient two weeks previously.

In the February 2018 hearing Dr Murphy claimed she had not worked since August 2017. The sanction decision, paragraph 6 states:

‘The Tribunal also heard oral evidence from you at this stage of the proceedings. You confirmed that you have not worked since August 2017. You confirmed on oath the matters set out in your reflective statement’.

How can Dr Murphy have not worked since August 2017, but provided Professor Dinan with a second opinion on a patient in November 2017? The lack of scrutiny by the MPTS panel of these claims brings into question the rigour of this whole process, and the decision that they then reached.

Abuse of a bereaved family 

Great emphasis was placed by the MPTS tribunal panel on Dr Murphy’s reflection, insight and remorse. Simultaneously it appeared that no care was shown to Connor Sparrowhawk’s family in this process, by the same tribunal panel.

Dr Murphy claims that Southern Health told her not to speak to Connor’s family to apologise. Yet she left their employ months before his inquest, where she chose to not apologise. Indeed she had left their employment for a number of years by the time the tribunal first met in August and she again chose to not apologise.

Not only did she choose not to apologise, under her instruction her counsel interrogated Connor’s mother for several hours, asking questions that appeared wholly irrelevant to the discussions that preceded or followed it.

At no stage did the Chair interject and offer Connor’s mother a break. In contrast the panel showed great care towards Dr Murphy, repeatedly proactively offering her the opportunity of pauses and breaks to compose herself.

Dr Murphy’s actions, her choice to instruct her counsel to behave in such a way towards a bereaved family, subjecting them to trauma and re-trauma speaks much louder than her later words claiming remorse.

The tribunal do observe that she has not once apologised to Connor’s family, yet they did nothing to protect them from her counsel’s attack. I am sure that they themselves will represent this point, I just wish to add that it was deeply unpleasant to sit through and it is a complete and utter failing of this process that bereaved families can be (re)traumatised in these proceedings.

Mitigating factors

I wish to conclude by focusing on what is perhaps the most worrying consideration of all. The tribunal panel’s assessment of mitigating factors. In the sanction decision document, at paragraph 22 they make reference to the following two mitigating factors:

‘At the time of these events you were a young consultant in the difficult field of adult learning difficulties’

and

‘You were distracted by other clinical commitments, including the fact that the Trust would admit out of county patients at all hours of the day, who would usually be extremely challenging with complicated presentations’.

I am at a complete loss as to how the tribunal panel can offer such suggestions as mitigating factors. It is unclear to me why reference is made to learning difficulties when Dr Murphy is a consultant who was working in the field of learning disability. Additionally no qualification, evidence or criteria are offered by the tribunal panel to back up their claims that this is a ‘difficult field’, indeed the difficulty level of the field should be irrelevant given the consultant’s chosen speciality. The panel should be assessing her competence and fitness to practice, not making aspersions about how difficult working with certain patients are.

Many of Dr Murphy’s failings bore no relation to the fact that her patients had a learning disability. Her failure to conduct risk assessments, her failing to make records or use a computer system, her failure to listen to family members or patients, her failure to follow professional standards relating to Good Medical Practice or the Mental Capacity Act. These are not mitigated by her patients having a learning disability, if anything they carry greater risk.

If the MPTS tribunal process wishes to uphold public confidence in the profession, and keep patients safe, it can not use learning difficulty, or indeed learning disability, as a reason to justify or mitigate against poor clinical practice.

Learning disabled people currently die about 20 years earlier than people without a learning disability. We also know that approximately one in three patients with a learning disability will also have epilepsy. Health professionals, and the MPTS tribunal service, should be working to ensure that learning disabled people are safe in healthcare.

Dr Murphy was a specialist in the field of learning disability, she chose to work in this area, she had a professional duty to keep her patients safe. She failed in that duty and her failings cost Connor Sparrowhawk his life.

The MPTS tribunal process, while not designed to punish Dr Murphy, should result in a sanction that will protect the health, safety and wellbeing of the public, maintain public confidence in the profession, and promote and maintain proper professional standards and conduct for the members of the profession.

I appreciate that this correspondence is lengthy and I thank you for reading it. Please would you take a look at the decision of the MPTS tribunal in this case, and reflect on the issues I have raised in considering the appropriateness of the process and the decision reached.

Yours Sincerely

Dr George Julian

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