Malcolm Fortune

Professional Discipline & Regulatory

Cases & work of note

Medical Practitioners Tribunal, April, June, August & December 2022:
Doctor found to have been teaching PLAB 2 students scenarios, said by the GMC to have been obtained dishonestly by debriefing students, in breach of their Non- Disclosure Agreements, who had earlier sat the PLAB 2 clinical examinations and which bore a remarkable similarity to those scenarios held securely on the GMC’s Database and therefore in breach of the GMC’s claims to confidentiality and copyright. Misconduct proved. Fitness to practise found to be impaired. Erased. Order made for the immediate suspension of his Registration.

Medical Practitioners Tribunal, November 2022:
Junior Doctor alleged to have had anal intercourse with a female flat mate without her consent. The Tribunal found that anal intercourse was proved and that it was sexually motivated. However the Tribunal did not find proof that the anal intercourse had been without the Complainant’s consent. No Finding of Misconduct. Fitness to practise therefore not impaired.

General Dental Council, July 2022:
Clinical Dental Technician (CDT) alleged to have acted outside his Scope of Practice (SoP) when left by a General Dental Practitioner (GDP) to fit a temporary fixed prothesis into the mouth of a highly anxious female patient. Facts not found proved as the CDT believed not only that he had the experience to fit the prothesis but also that he had been acting under the GDP’s prescription.

Medical Practitioners Tribunal, February & June 2022:
Foreign trained Doctor found to have provided dishonestly false and forged documents to the GMC in support of an Application to the GMC’s for a Certificate of Eligibility for Specialist Registration (CESR) in the field of Geriatric Medicine. Misconduct proved. Fitness to practise found to be impaired. Erased. Order made for the immediate suspension of his Registration.

Medical Practitioners Tribunal, February & April 2021:
Junior Doctor alleged to have assaulted sexually in his hospital, provided accommodation a female whom he had met at a leisure centre and whom he had invited to have supper with him. The Police had decided not to charge the Doctor. Facts not found proved.

General Chiropractic Council, March 2021:
Experienced Chiropractor alleged to have failed to recognise a developing clinical picture of a ‘Red Flag’ condition known as Foot Drop, which is indicative of an injury to the L4/L5 disc with severe pressure on the lumbar nerve at that level. As a ‘Red Flag’, the condition requires an immediate referral to Accident and Emergency for an MRI, following which surgery may be required. The GCC’s Expert considered that  the Chiropractor’s failure to recognise that developing picture fell below but not far below the standard expected of a registered Chiropractor. The Professional Conduct Committee acceded to an unopposed Submission that the Chiropractor was not guilty of Unacceptable Professional Conduct. Case concluded.

Medical Practitioners Tribunal, November 2020 and January 2021:
Dual qualified Medical Practitioner and Fellow of the Faculty of Pharmaceutical Medicine, whilst working for an international pharmaceutical company, was alleged to have downloaded indecent images of children on his personal computers. Acquitted in the Crown Court but the same facts were found proved by the Tribunal on the lesser civil standard of proof. Found Guilty of Misconduct. Fitness to Practice found to be impaired. Registrar directed to erase his Name. Order made with immediate effect.

Surrey Coroner’s Court, June 2017 and December 2020:
Representing a Nurse, who was one of two Nurses involved in the drawing up of a syringe containing phenytoin, which was then attached to a syringe driver prior to its administration into an eleven month old female child, who had had a seizure following her admission to Hospital as a result of seizures earlier that morning. The phenytoin had been prescribed by a Consultant Paediatrician. The syringe driver kept alarming because of high pressures. The Nurse then declined to administer the phenytoin manually, having questioned the clinical need for the phenytoin. A Trainee Paediatrician then administered the phenytoin manually under the direction of the Consultant Paediatrician. The young child arrested and could not be revived. The Inquest was adjourned part heard in June 2017 at the request of the Police to enable them to carry out further inquiries. The Inquest was resumed in December 2020 as the inquiries conducted by the Police had not led to any individual or corporate charges of gross negligence manslaughter. The medical cause of death was phenytoin toxicity. HMAC found that the system in place at the Hospital at the time of the young child’s death for the administration of phenytoin was sub-optimal, firstly, as to whether the phenytoin should have been diluted or undiluted and, secondly, in particular that national guidance for the administration of phenytoin had not been addressed or adopted by the Hospital in a timely manner and concluded that neglect had contributed to the young child’s death.

General Chiropractic Council, December 2020:
Experienced Chiropractor failed to act on a constellation of ‘Red Flags’ for a female patient in her late thirties, who had been treated previously for pelvic cancer but presented with upper to mid thoracic pain. The Chiropractor should have referred the patient for an immediate investigation, most likely to have been an MRI, which would have shown the spread of secondary tumours affecting the vertebrae. However the Chiropractor prescribed a short course of manipulation as he believed that the patient’s complaint was of a musculoskeletal nature. Shortly after that short course of treatment ended, the patient required emergency spinal surgery as she had collapsing vertebrae. Comprehensive admissions made. Found guilty of Unacceptable Professional Conduct. Admonished. Case concluded.

The Health and Care Professions Council’s Conduct and Competence Panel, February and July 2020:
Representing a Clinical Psychologist, registered in Scotland and acknowledged in Scotland to be well known in the diagnostic field of Autism, who faced the Panel in respect of three discrete sets of allegations.
Firstly, for misrepresenting herself as a Consultant Clinical Psychologist when in private practice and said by the Clinical Director of a Scottish NHS Mental Health Trust to be insufficiently qualified to use that title, albeit that it was not a ‘protected’ title.
Secondly, when asked by the Parents of a Teenager to undertake with his consent an assessment of his behaviour and in particular why he had been downloading indecent images of teenage girls and engaging with them on social media to act indecently, the Registrant diagnosed him as being autistic. The Registrant, in writing what she termed to be a clinic forensic assessment report, opined that the Teenager’s level of risk of re-offending was low. Both the use of the term ‘forensic’ and the assessment of risk were challenged. The former on the basis that the Registrant had not undergone any appropriate training to write a forensic report that could be put before a Sheriff if or when the Teenager fell to be sentenced. The latter on the basis that the Registrant had not used any standard tools needed for an appropriate assessment of risk. Therefore it was said that the Registrant had acted outside her scope of practice.
Thirdly, the Registrant was alleged to have claimed in her Curriculum Vitae to have held or carried out specific roles or duties in the NHS Community Mental Health Trust that had formerly employed her.
The Panel heard Expert evidence on behalf of both the Complainant and the Registrant, representing, respectively, both the clinical and the academic sides of the argument about the use of such diagnostic tools when assessing the risk of re-offending in a neurodevelopmental disorder, more often than not viewed incorrectly by many people as a mental health disorder.
All three sets of allegations were found proved by the Panel, which found in the case of the third set relating to the Curriculum Vitae that the Registrant had acted dishonestly.
The Registrant’s fitness to practise was found to be impaired, based on her misconduct. Her Registration was suspended for nine months with a review ordered.

Medical Practitioners Tribunal, October 2019:
Locum Junior Doctor working in Emergency Medicine in a hospital in South Wales arrived for work on the night shift in a condition both deprived of sleep and intoxicated through alcohol. Facts admitted. Found Guilty of Misconduct. Fitness to Practice found to be impaired. Registration suspended for four months, with immediate effect.

Inner West London Coroner’s Court, April 2019:
Representing the Family GP, whose elderly female patient was diagnosed as suffering from an abdominal entero-cutaneous fistula. She was placed on the local hospital’s waiting list  for surgery but was not recalled in a timely manner for her pre-operative assessment and consequently she was removed from the waiting list. Following a visit to her GP and on enquiry by him, the female patient was placed back onto the waiting list but not reinstated to her original place on that waiting list. However, overall, it took some eighteen months before surgery was carried out, during which period insufficient attention was paid to the female patient’s weight loss. The delay in surgery treatment caused by the female patient’s removal from the waiting list and the hospital’s failure to reinstate her to her original place on the waiting list, together with a failure to act upon the clinical signs of deterioration in the female patient’s condition upon her pre-operative assessment were found by HMC to be gross failures in the provision and procurement of basic medical care and contributed to her ultimate demise and as such constituted neglect.

County Durham and Darlington Coroner’s Court, February 2019:
Representing a local hospital, where a middle-aged female resident in a care home was taken following a fall. The resident, who was quadriplegic with limited ability to communicate and who lacked capacity within the terms of The Mental Capacity Act 2005 (MCA), was not appropriately examined by a Junior Doctor in A & E, when she should have undergone a full neurological assessment. The female resident died two years later from complications arising from her quadriplegia, due to a spinal cord injury as determined by the Jury in returning a Narrative Conclusion.

Pembrokeshire and Carmarthenshire Coroner’s Court, January 2019:
Representing the Family’s GP, whose middle aged male patient suffered from mental health issues decided, contrary to advice, to stop his medication. Following a RTA, the patient was detained under Section 136 Mental Health Act 1983, taken to a local hospital, examined and later discharged. Overnight, back at home, the patient assaulted his mother. The police arrested him and took him to a local police station, where in a cell he became extremely violent and needed to be restrained by five police and two detention officers. The Jury, in returning a Narrative Conclusion, determined that death had been caused by Positional Asphyxia due to Restraint following Acute Behavioural Disturbance.

General Dental Council, January 2018:
GDP faced a series of complaints made by a single female patient, concerned about the appearance of her teeth and her upper arch in particular, insisted on a total clearance of teeth in that arch and their replacement by six implants supporting a fixed bridge. Such a treatment plan was unsuitable for that patient. The record keeping was extremely poor and furthermore there were three differently dated sets of records. Misconduct proved. Fitness to practise found to be impaired. Conditions placed on the GDP’s Registration for two years, with immediate effect.

Medical Practitioners Tribunal, December 2017:
ENT Surgeon, convicted in a Sheriff’s Court in Scotland and placed on an Order of Supervision for two years for downloading and possessing indecent images of young children, erased from the Medical Register.

General Dental Council, November 2017:
GDP faced a series of complaints regarding his failure to manage and treat appropriately a female patient, who presented in pain complaining of a large swelling in her lower right quadrant. As the GDP’s admitted standard of record keeping was poor, the GDP found himself in some difficulty recalling details of conversations with the patient as to prospective treatment options with all their risks and benefits and therefore the obtaining of informed consent. Nevertheless the Committee concluded that there had been a sufficiency of detailed discussions but found that the GDP had neither used a rubber dam nor established the working length of the canals nor taken a post-operative radiograph during root canal treatment and had used cresophene as a disinfectant at a time when the license for its manufacture had been cancelled. Furthermore, the GDP had failed to co-operate the GDC’s Inquiry. Misconduct proved. Fitness to practise found to be impaired. Conditions placed on the GDP’s Registration for two years.

General Dental Council, September 2017:
GDP faced a series of complaints regarding her failure to manage and treat appropriately eight patients at a time when she had not long finished her vocational training and was therefore a relatively inexperienced GDP. Comprehensive admissions made in relation to the wide ranging clinical complaints. Misconduct proved. Fitness to practise found currently not to be impaired. Case concluded.

General Dental Council, July 2017:
GDP / Practice Principal faced a series of complaints regarding not only his failure to manage and treat appropriately five patients but also for making claims for payment of their treatment under NHS Regulations that were alleged to be inappropriate, misleading and / or dishonest. Admissions made in relation to the wide ranging clinical complaints and the claims for payment that were said to be inappropriate. Dishonesty not proved. Misconduct proved in relation to the making of the inappropriate claims for payment. Fitness to practise found currently not to be impaired. Case concluded.

General Dental Council, March 2017:
Orthodontist faced a series of complaints regarding his failure to manage and treat appropriately some twenty patients. Comprehensive admissions made. Fitness to practise found currently not to be impaired by reason of his Deficient Professional Performance. Case concluded.

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.

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 36 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.

General Dental Council, March 2015:
GDP investigated in respect of his decision to carry out orthodontic treatment for a female patient in her mid-40s, 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 12 months.

General Dental Council, October 2014:
GDP investigated in respect of his decisions to treat a total of 12 patients, 10 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.

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.

General Medical Council, October 2011:
General Practitioner who allowed himself to be persuaded by other clinicians that there might be possibly a link between Chronic Fatigue Syndrome / Myalgic Encephalomyelitis and Borrelia Burgdorferi / Lyme Disease by using unorthodox investigations and by prescribing inappropriately significant quantities of antibiotics to a large number of patients over several years for which he was paid. Comprehensive admissions made. Misconduct proved. Fitness to practise found to be impaired. Registration suspended for nine months.

General Dental Council, June 2011:
Single handed GDP investigated by NHS Rotherham in respect of extensive poor cross infection controls, numerous cases of poor patient treatment and numerous inappropriate claims for payment when set against a very high number of units of dental activity (UDAs). Comprehensive admissions made. Misconduct proved. Fitness to practise found to be impaired. Conditions imposed on his Registration for three years.

General Dental Council, February – March 2011:
Associate GDP investigated in respect of numerous instances of poor and rushed treatment and inappropriate behaviour towards both patients and staff. Limited admissions made. Misconduct proved. Fitness to practise found to be impaired. Erased.

General Dental Council, September and November 2010:
Associate GDP investigated by Leicester City PCT in respect of numerous instances of poor and rushed treatment, inappropriate behaviour towards both patients and staff and a failure to refer an elderly female patient sufficiently early in respect of an oral lesion on the edge of the tongue, which turned out to be malignant. Limited admissions made. Misconduct proved. Fitness to practise found to be impaired. Erased.

General Medical Council, August 2010:
Young hospital doctor found to have been self medicating whilst undergoing GP training on rotation – cautioned by the Police. GMC Inquiry opened but unable to progress academically whilst awaiting the Inquiry’s Determination. Caution admitted, issues relating to health taken into consideration. Misconduct proved. Fitness to practise found to be impaired. Registration suspended for nine months.

General Medical Council, March 2010:
Retired GP, assisting a pharmacist, investigated for prescribing Viagra via the internet without satisfying himself sufficiently that ‘the patient’ who was in fact an investigator for Pzifer (the manufacturers) did not have any of the risk factors that would have made such a prescription contraindicated. Very limited admissions made. Misconduct proved. Fitness to practise found to be impaired. Registration suspended for six months.

General Medical Council, January 2010:
Surgeon found to have lied about her findings at operation to the Consultant to whom the patient was referred for that remedial surgery. Some admissions made. Misconduct proved. Fitness to practise found to be impaired. Registration suspended for twelve months.

recommendations

“An excellent senior junior whose experience is evident in his drafting and advocacy.”
Chambers & Partners

“He is very intelligent and reliable.”
Chambers & Partners

‘An excellent advocate, with great presence and control in a court. Looks after his clients very well in preparation for hearings.‘
The Legal 500

‘He is a hard worker, knowledgeable, experienced and well-prepared.’
The Legal 500

“He is incredibly thorough and can pick up complex cases and know all the nuances and subtleties.”
Chambers & Partners

‘He provides robust advice and advocacy, seeing the wood for the trees on cases for NHS trusts.’
The Legal 500

“A class act, and very impressive in tribunal.”
Chambers & Partners

“A senior junior who merits recognition for his long-standing practice”
Chambers & Partners

‘Instructed in GDC cases.’
The Legal 500

“He’s very experienced in the field, he prepares well and is highly professional. He understands the process and knows exactly what it’s all about.”
Chambers & Partners

“His experience makes itself obvious.”
The Legal 500

“A seasoned advocate who is particularly strong in contested hearings.”
Chambers & Partners

“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

“A senior junior with experience in defending before the General Medical Council and General Dental Council.”
The Legal 500

“Noted for his experience in the healthcare sector and his frequent instructions on GDC and GMC Fitness to Practise cases.”
Chambers & Partners

“Commands a great deal of respect in the medical defence sphere. He has a great deal of experience in appearing before regulatory bodies and is a heavyweight in this area.”
Chambers & Partners

“Handles a number of high-profile GDC and GMC cases.”
The Legal 500

“Malcolm Fortune has years of experience in disciplinary matters, acting for all kinds of medical practitioners before their respective professional committees. An extremely eloquent barrister who is full of integrity, he is also an experienced criminal advocate.”
Chambers & Partners

“Malcolm Fortune is an extremely experienced and able advocate known for his ability to deal smoothly with both tribunals and clients.”
Chambers & Partners

“Malcolm Fortune knows how to take the fight to the opposition.”
Chambers & Partners

“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, with interviewees praising his well-crafted cross- examination skills.”
Chambers & Partners