Malcolm Fortune

Call 1972

Malcolm Fortune | Call 1972

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Overview

Malcolm is a heavyweight Senior and very experienced Junior Counsel, whose current broad based defence practice in the dental and medical regulatory and coronial fields, developed over many years, stems from his professional background on the Specialist List of Counsel instructed to prosecute by the Crown Prosecution Service, principally at the Central Criminal Court.

Malcolm is clerked primarily by Lee Johnson, Stephen Somerville, Jennifer Pooler and Louis Wilkins.

“He’s very experienced and has a good presence. He’s a good advocate who handles the clients well and has good insight into the judiciary and how coroners approach cases.”
Chambers & Partners

Malcolm has been a Recorder since 1994

experience & expertise

Malcolm is not only able to get quickly to the heart of the matter but also and more importantly able to get the best out of all those whose interests he is asked to represent, whether in coronial, criminal or regulatory proceedings.

He is recommended as a leading Junior by Chambers & Partners, which has noted that he is an “extremely experienced and able advocate known for his ability to deal smoothly with both tribunals and clients.”

cases & work of note

  • Wiltshire and Swindon Coroners Court, September 2016: Representing three GPs, providing a daily morning surgery and afternoon on call cover in HMP Erlestoke, who saw a forty-one year old male prisoner, then recently transferred in  from HMP Bristol, where he had been previously prescribed Quetiapine for depression and Pregabalin for pain relief. Pregabalin is regarded in prison circles as a highly tradeable drug. As was customary at HMP Erlestoke, the prisoner signed  the contract to keep safely any ‘In Possession’ medication, failing which his medication could or would be stopped. The prisoner reported that his Pregabalin had been stolen from his cell whilst his cell door was unlocked. Although the prisoner was prescribed analgesia for a complaint that he was experiencing headaches, a  dose reducing only prescription for Pregabalin was issued. The prisoner  commented to a nurse that he felt suicidal: an ACCT was opened and reviewed. Despite the reviews, the prisoner hanged himself in his cell. The Jury returned both a narrative conclusion and a short form conclusion, that of suicide.
  • City of Liverpool and the Wirral Coroners Court, September 2016: Representing a GP, employed by a healthcare trust to work in HMP Liverpool, who saw a 25 year old male prisoner / patient known to have chronic poorly controlled asthma 29 days after his admission. The prisoner / patient’s presenting complaint was a lack of what he believed to be his prescribed medication. Following a comprehensive assessment and examination by the GP with medication prescribed and administered, the prisoner / patient returned to his cell where, more likely than not, he smoked spice and / or ingested a propranolol tablet, both contraindicated for asthma. A respiratory arrest leading to a cardiac arrest then followed. The Jury returned both a narrative conclusion and a short form conclusion, that of accidental death to which neglect contributed by reason of a failure to make available appropriate medication for him during the first 28 days of his custody.
  • General Dental Council: August 2016: Dental nurse working for a GDP in a practice where CCTV footage, recorded over two days, demonstrated not only a high turnover of patients but also a very significant lack of any robust cross infection controls. Comprehensive admissions made. Misconduct proved. Fitness to practise found to be impaired. Conditions placed on the dental nurse’s registration for 12 months.
  • General Dental Council: June 2016: GDP, twice visited by inspectors from the CQC, found not to be wholly compliant with the current national guidance in four areas, namely, insufficient arrangements to deal with medical emergencies, failing to have in place robust cross infection controls, failing to assess and monitor the quality of service provision to patients and failing to record sufficient details of clinical examinations in his dental records. GDP, also visited by inspectors from the HSE, found not to have any local rules and any maintenance records for his X-Ray equipment. Enforcement action taken. GDP referred to the GDC. Comprehensive admissions made. Misconduct proved. Fitness to practise found to be impaired. Registration suspended for nine months.
  • General Dental Council: April 2016: Dental nurse / practice manager in a practice where the principal’s deteriorating health was a significant concern to the vocational trainees, staff and the local health board, investigated in respect of the dishonest amending of patient records retrospectively ahead of a combined practice inspection by the local health board and of dishonestly writing and signing a prescription for an analgesic for a patient presenting in pain at the surgery at a time when the patient could not be seen by a GDP as no GDP was then available or on site. The allegations of the dishonest amending of the patient records retrospectively were found proved. The allegation of dishonestly writing and signing a prescription was found not proved: however the writing out of a pre-signed prescription form, albeit at the dictation by telephone by a GDP, was proved and found to be not only outside her scope of practice but also misleading as any pharmacist would have been under the impression that a GDP had completed the whole form before signing. Misconduct proved in respect only of the dishonest amending of the patient records. Fitness to practise found to be impaired. Reprimanded.
  • General Dental Council: January 2016: GDP, erased previously by the GDC in June 2005 and restored to the Register in July 2006, investigated in respect of numerous allegations of breaching cross infection controls by re-using single use items, in particular endodontic files, gloves and matrix bands: when challenged by the local health board, the GDP dishonestly submitted false invoices to cover up the re-use of those single use items. GDP admitted the dishonest submission of the false invoices but denied the allegations of re-use of single use items, which were found proved. Misconduct proved. Fitness to practise found to be impaired. Erased.
  • Medical Practitioners Tribunal Service, November 2015: GP accused by long standing vulnerable female patient of vaginal and oral rape in a hotel bedroom. Allegations made to a senior hearing therapist, when consulted by the patient in respect of a diagnosis of tinnitus, three and a half years later during which time the patient had seen the GP in numerous consultations. Allegations completely denied by GP. Police decided not to charge the GP. Allegations of vaginal and oral rape found not proved. However the GP was found to have met the patient in a hotel bedroom almost two years after the alleged rapes. The GP was also found not only not to have been empathetic towards the patient but also to have failed to have made a comprehensive note of a consultation, secretly recorded by the patient, three and a half years after the alleged rapes, in which the patient asserted that not only was she thinking of killing herself but also that she blamed those thoughts on the GP for raping her. Misconduct proved. Fitness to practise found to be impaired. Registration suspended for four months.
  • Oxford Coroners Court, October 2015: Representing one of two named nurses responsible for the care of an eighteen year old male resident in a care home, diagnosed as an epileptic and suffering from a learning disability, found to have drowned in a bath. The male resident was known by the staff to have a habit of taking not showers but long baths and at times when there was little or minimal supervision of him. Both the NHS Mental Health Trust that owned and managed the care home and the staff were heavily criticised by the Jury as the death was preventable. Neglect was found to have contributed to the death in numerous respects, including a failure by the staff to carry out an adequate assessment of the care and risk management of a resident diagnosed as an epileptic with a learning disability, a lack of clinical leadership and a lack of adequate training and guidance by the management for the nursing staff.
  • General Dental Council: September 2015: GDP, disciplined previously at the GDC in October 2014, further investigated in respect of his decisions to treat two elderly patients, by placing in one case a six unit bridge and in the other case a four unit bridge involving restorations on two teeth where implants had been placed surgically by another GDP. Each patient complained that the benefits and risks of the respective treatment plans had not been fully explained. Some admissions were made but lack of informed consent proved in both cases. Misconduct proved. Fitness to practise found to be impaired. Conditions imposed for a further period on the GDP’s registration making a total of thirty six months.
  • General Dental Council: June 2015: GDP investigated in respect of his failures not only to diagnose decay in two teeth in the upper arch by taking appropriate radiographs but also later his decision to extract one of the two teeth without first explaining to the patient that there were other treatment options available, such as pulp extirpation followed by a sedative dressing or root canal treatment. Full admissions made including a failure to obtain informed consent for the extraction. Misconduct proved. Fitness to practise found not to be impaired. Inquiry closed.
  • Manchester South Coroners Court: April 2015: Representing The Priory Hospital at Cheadle Royal where a seventeen year old female adolescent patient with a known history of self-harm tied a ligature of a wire from a spiral bound notebook around her neck following an extended and brilliant period of home leave and at a time where her observation levels had been reviewed and reduced on clinical grounds by her multi-disciplinary team and at a time when NHS England and others were seeking to find the adolescent patient a suitable therapeutic placement in the community.
  • General Dental Council: March 2015: GDP investigated in respect of his decision to carry out orthodontic treatment for a female patient in her mid-forties, who was a heavy smoker and whose teeth were heavily compromised periodontally. Despite concerns raised by fellow professionals, the GDP continued with his management plan. Limited admissions made. Misconduct proved. Fitness to practise found to be impaired. Registration suspended for twelve months.
  • Cumbria Coroners Court: February 2015: Representing The North Cumbria University Hospitals NHS Trust on behalf of the West Cumberland Hospital, where a nineteen year old female patient with a significant cardiac history underwent an appendicectomy during which an intra-abdominal haemorrhage was caused but not recognised immediately leading in a matter of hours to a cardiac arrest and death from hypoxic brain damage.
  • Maidstone and Tunbridge Wells NHS Trust: December 2014: Representing the trust which pleaded guilty to a breach of Section 3 of The Health and Safety at Work etc Act 1974 for placing at risk a male patient undergoing routine laparoscopic left sided renal cyst deroofing surgery by failing properly to plan the surgery safely when a warming mattress known as ‘Hot Dog’ caused life changing burns to the patient’s right side. Sweeney J imposed a fine of £160,000.00 having given the Trust a discount of 33% for its plea indicated at the earliest possible opportunity and for its cooperation with the HSE.
  • General Dental Council: October 2014: GDP investigated in respect of his decisions to treat a total of 12 patients, ten of whom underwent implant surgery and two of whom orthodontic treatment using ‘Invisalign’. Extensive admissions made. Misconduct proved. Fitness to practise found to be impaired. Conditions imposed on his Registration for 24 months.
  • General Dental Council: May 2014: Dental technician investigated in respect of his decisions first to alter and then to refit a patient’s set of dentures before making a new set of dentures, both procedures going ahead without a dentist’s prescription. The patient complained to the GDC about the poor fit of both sets of dentures and about the Dental Technician’s attitude and behaviour towards him. Facts found proved. Misconduct proved. Fitness to practise found to be impaired. Registration suspended for four months.
  • General Dental Council: May 2014: GDP investigated in respect of his decision to provide extensive and high risk dental treatment including new crowns, bridges and implants to an elderly female patient over a period of some eight years when the patient was no younger than 83 and no older than 92 at a cost in excess of £32,000. Much of the treatment failed and the patient’s daughter complained to the GDC as her mother was then a resident in a care home and arguably suffering from a lack of mental capacity, in the belief that the GDP’s motives were wholly financial and that his courses of treatment were neither clinically indicated nor justified and certainly not in her mother’s best interests. Some admissions made but the GDP was found to be financially motivated and dishonest. Misconduct proved. Fitness to practise found to be impaired. Erased.
  • South Yorkshire Coroners Court: November 2013: Representing a spinal surgeon, who whilst performing a discectomy on a middle aged female patient, entered the spine at the wrong level, at L4/5 and not L5/S1, damaging an artery in the process and causing an intra-peritoneal haemorrhage which was not recognised immediately and which led in a matters of hours to a cardiac arrest and subsequent death.
  • Inner London West Coroners Court: July 2013: Representing two Ambulance Paramedics called to attend a patient who had collapsed in a London street whilst in police custody and who was later to die whilst in police custody at a nearby police station.
  • The Inquiry into Hyponatraemia Related Deaths, Belfast: March 2012 and presently ongoing as the report is still due: An Inquiry, chaired by Mr Justice O’Hara, into five deaths of children and young persons at The Royal Belfast Hospital for Sick Children during the years 1995-2004. Deaths said to have been caused by or related to hyponatraemia, representing in turn two Consultant Paediatricians.

recommendations

Malcolm has been consistently recommended by both the leading legal directories as a leading junior for professional discipline and regulatory law.

He is described by Chambers & Partners as “an extremely eloquent barrister who is full of integrity” and who “knows how to take the fight to the opposition.”

Other recent directory editorial includes:

  • a seasoned advocate who is particularly strong in contested hearings;
  • understands the process and knows exactly what it’s all about;
  • very experienced in the field;
  • prepares well and is highly professional;
  • his experience makes itself obvious;
  • he’s very experienced and has a good presence;
  • he’s a good advocate;
  • handles the clients well;
  • has good insight into the judiciary and how coroners approach cases;
  • senior junior with experience in defending before the General Medical Council and General Dental Council;
  • noted for his experience in the healthcare sector and his frequent instructions on GDC and GMC Fitness to Practise cases;
  • commands a great deal of respect in the medical defence sphere;
  • has a great deal of experience in appearing before regulatory bodies;
  • a heavyweight in this area;
  • handles a number of high-profile GDC and GMC cases;
  • has years of experience in disciplinary matters acting for all kinds of medical practitioners before their respective professional committees;
  • an extremely experienced and able advocate;
  • known for his ability to deal smoothly with both tribunals and clients;
  • the blood and thunder style of Malcolm Fortune attracts much comment from the market;
  • his professional discipline work has grown out of a criminal practice and is none the worse for that; and
  • well-crafted cross- examination skills.

reflections

In my teens I was torn between medicine and the law. I decided eventually to become a barrister. I set out to pursue a purely criminal practice which over some time I achieved, leading to my appointment onto the then Specialist List of Counsel instructed to prosecute by the Crown Prosecution Service, principally at the Central Criminal Court.

“This combination of acting as Counsel and sitting on the Bench has given me a really good bird’s eye view.”

However in 1979 when I joined this Set of Chambers, a new world opened up for me: the world of dental and medical crime and regulatory inquiries, often taking me into the related world of health and safety. I was appointed as an Assistant Recorder in 1989 and sworn in as a Recorder five years later. I was given my ticket to try Serious Sexual Offences in 2006 and appointed to sit as a Recorder at the Central Criminal Court in July 2015.

This combination of acting as Counsel and sitting on the Bench has given me a really good ‘bird’s eye view’. It has made me think – and very often rethink – not only how I would approach the task of asking questions or making submissions but more particularly asking myself: “what is it that would interest me and persuade me to act in a particular way if I was sitting on this case?”, so that I can then use that insight to present the case.

My long career now in both the civil and criminal jurisdictions gives me experience and skills gained over 44 years to appeal to and interest the Bench and/or any Committee or Tribunal.

Nevertheless, even with that wealth of experience there is always the next challenge to be faced, which is something I enjoy.

Further Information

For further details of Malcolm’s practice please click on the links to the left or contact a member of the clerking or client service team.

Bar Council Membership No: 12574
Registered Name: Malcolm Donald Porter Fortune
VAT Registration No: 244594739