Kevin A M Dann

Profession: Physiotherapist
Registration Number: PH50987
Hearing Type: Final Hearing
Date and Time of hearing: 10:00 11/03/2025 End: 17:00 13/03/2025
Location: Virtual via video conference
Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation Finding Order Notes Hearing History

Allegation

As a registered Physiotherapist (PH50987):


1. Between 10 February 2022 and 24 November 2022 you received and retained
payment of £390 that should have been paid to your employer, WDC Physiotherapy Ltd.
2. You did not inform the HCPC as soon as possible that you had been dismissed by
your employer.
3. Your actions at Particular 1 above were dishonest in that you knew the payment
should not have been paid directly to you and you should not have retained the
payment.
4. The matters set out at particulars 1, 2 & 3 above constitute misconduct.
5. By reason of the matters set out above your fitness to practice is impaired by reason
of misconduct.

Finding

Preliminary Matters

Conducting the hearing in private

1. The Registrant applied for part of the hearing to be conducted in private to protect his private life on grounds that his health would be referred to during the hearing.

2. The Panel received and accepted legal advice and had in mind the guidance set out in the HCPTS Practice Note on Conducting Hearings in Private. The Panel understood that all substantive hearings should be conducted in public unless there were compelling reasons for the entire hearing, or parts of it, to be heard in private. The Panel was satisfied that it was appropriate to direct that those parts of the hearing which referred to the Registrant’s health should be heard in private. This was to protect the Registrant’s private life. The rest of the hearing would be heard in public.

Application to amend the Allegation

3. Mr Khan applied to amend the Allegation and submitted that the proposed amendments clarified the case alleged against the Registrant and made it fairer. He submitted that the proposed amendments did not alter the substance of the case in any way. Mr Khan referred the Panel to an email chain between Blake Morgan LLP, external lawyers instructed by the HCPC, and the Registrant. Mr Khan submitted that it was clear from the email chain which began on 29 November 2024 and concluded with an email from the Registrant on 12 December 2024 that (i) the Registrant had been on notice of the proposed amendments from as early as February 2024 and (ii) the Registrant did not object to any of them being made.

4. The Registrant confirmed that he had no objection to any of the proposed amendments.

5. The Panel received and accepted legal advice. It considered each of the proposed amendments separately. It noted that the effect of the proposed amendments was to clarify each step of the alleged conduct and to specify which steps were alleged to have been dishonest. The Panel also noted that the Registrant had been on notice of the proposed amendments for some time and did not object to them.

6. The Panel was satisfied that each of the proposed amendments could be made without prejudicing the Registrant and none of them impacted adversely on the fairness of the proceedings. Accordingly, the Panel granted the HCPC’s application to amend the Allegation in full.

7. At a later point in the proceedings, the Chair of the Panel raised what appeared to be a spelling error in the amended Allegation concerning the name of the insurance company. Neither party objected to the spelling error being corrected, and the Panel agreed that it should be corrected.

Background

8. The Registrant is a registered Physiotherapist. He qualified in 1996 and has worked for a number of different employers since then. From March to November 2021, the Registrant worked part-time as a self-employed physiotherapist at WDC Physiotherapy, a private physiotherapy clinic (“WDC”). On 15 November 2021, the Registrant was employed as a full time senior private physiotherapist by WDC.

9. In early 2022, the Registrant treated RP, a client of WDC. This treatment was due to be paid by RP’s health insurance provider, Western Provident Association (“WPA”). On 2 February 2022, WDC sent an invoice RB1 for the treatment to WPA through WPA’s portal. It was for £390. WPA paid £390 for invoice RB1 by bank transfer to the Registrant’s bank account on 10 February 2022.

10. WDC re-issued invoice RB1 to WPA on 5 August 2022 due to absence of payment. In November 2022, at a time when WDC was about to chase WPA again for the outstanding invoice RB1, the Registrant admitted to his employer that he had been paid the £390 due in respect of that invoice. The Registrant repeated his admission in a fact-finding meeting with his employers on 24 November 2022.

11. On 25 November 2022, WDC wrote to the Registrant terminating his employment with immediate effect. The £390 which WPA had paid to the Registrant was deducted from the Registrant’s November salary.

12. On 28 November 2022, WDC referred the Registrant to the HCPC.

13. The Registrant did not inform the HCPC of his dismissal by the WDC.

Decision on Facts

14. The Panel heard live evidence from two witnesses called by the HCPC. It also heard evidence from the Registrant. It received in evidence the witness statements of two further HCPC witnesses, as well as documentary evidence in a bundle totalling 85 pdf pages. This bundle included:

a) witness statements from the four HCPC witnesses;
b) notes of a meeting between WDC and the Registrant dated 24 November 2022;
c) WDC invoice RB1 to WPA dated 2 February 2022,
d) WDC re-issued invoice RB1 dated August 2022;
e) dismissal letter to Registrant from WDC dated 25 November 2022;
f) WDC referral to HCPC dated 28 November 2022;
g) WPA payment advice for RB1;
h) screenshots of HCPC’s Nexus system regarding the Registrant;
i) HCPC’s redacted case investigation report regarding the Registrant;
j) the Registrant’s email to the HCPC dated 11 December 2022;
k) the Registrant’s statement dated 08 February 2025;
l) three character references - each dated February 2025.

Admissions

15. At the start of the hearing, the Registrant indicated that he admitted Particular 1 to 6 of the Allegation.

16. In reaching its decision on the facts, the Panel was aware that at all times, the burden of proving the case was on the HCPC and that the standard of proof was the civil standard.

WM

17. WM has been a registered physiotherapist since 1997. WM is the owner of WDC. WM described WDC as a small business with about 11 people working there including herself. WM said she had first met the Registrant in 1997 when they both worked at Southend Hospital. She told the Panel that the Registrant was employed by WDC on 15 November 2021. Prior to that he had worked for WDC on a part-time self-employed basis. WM said that she did not know the Registrant outside of work and that they were not friends.

18. WM told the Panel that on 18 November 2022, she became aware of an issue concerning the Registrant in relation to an unpaid invoice for £390 in relation to their client RP which was due to be paid by Western Provident Association (“WPA”). She said that on 18 November 2022, after she had asked a colleague to chase this unpaid invoice, the Registrant, who had overheard her request, had asked to speak to her in private. He had then told her, “..the invoice you asked Dawn to chase, I got paid for it”.

19. WM explained that the original invoice RB1 had been sent to WPA through its company portal by WDC’s administration team on 2 February 2022 and had been re-issued on 5 August 2022 due to the absence of any payment. WM told the Panel that WDC invoices did not state when payment was to be made as most companies WDC worked with paid within 30 days of receipt. WM said that at that time, WDC had no issues chasing WPA for invoices that were provided. She said that there had been no previous issues with WPA making payments.

20. WM explained that where an insurance company was paying for a client’s treatment, the invoice for the treatment would be sent by WDC directly to the insurance company who would then make a payment directly into WDC’s business bank account. WM also said that as an employee, the Registrant was paid a monthly salary by bank transfer.

21. WM told the Panel that she had been shocked when the Registrant had told her that he had been paid for the invoice and that she had reassured him that it was going to be ok. This was because at that time she had believed it to have been a genuine mistake.

22. WM said that she had followed the matter up with WPA. On 23 November 2022, WM received a telephone call from WPA and was informed that they had paid the Registrant directly for the invoice of £390 and that the payment had cleared WPA’s bank account on 10 February 2022. WM said that on 7 December 2022, she had received an email from WPA which stated that the payment to the Registrant had been made on 8 February 2022. A WPA payment advice was attached to the email. This was addressed to the Registrant’s home address and showed that he was paid by WPA for the invoice RB1 in the sum of £390.

23. WM told the Panel that on 24 November 2022, she and WDC’s Operations Manager, held a fact-finding meeting with the Registrant. During the meeting the Registrant admitted he had received payment for invoice RB1 for £390 from WPA. WM told the Panel that she had informed the Registrant that she was contemplating reporting the matter to the Police and that she was going to report him to the HCPC. WM said that the Registrant had responded by looking down and then looking sharply towards her and his body language appeared to her to be making himself as small as possible.

24. On 25 November 2022, WM wrote to the Registrant terminating his employment with immediate effect for gross misconduct and informing him that the £390 would be deducted from his salary. WM confirmed that this had been taken from the Registrant’s November salary. On 28 November 2022, WM referred the Registrant to the HCPC.

25. In answer to Panel questions, WM said that when the Registrant had been working for WDC on a self-employed part-time basis, he would invoice WDC for the work he had done and WDC would pay him.
26. WM said she had been shocked when the Registrant had told her that he had received the £390 payment. She could not recall the Registrant telling her why WPA had paid him and said apart from this occasion WPA had always paid WDC.

27. WM told the Panel that she was at the Practice most days and explained that there were weekly team meetings which she and the Operations Manager usually attended. WM also said that there were quarterly meetings with staff to review key performance indicators and behaviours. WM said that she was available to her staff every day either by email, over Zoom or in person. She would have expected the Registrant to have told either herself or the Operations Manager, or both that he had been paid by WPA for invoice RB1.

BP

28. BP is the Operations Manager of WDC, a role he has held since September 2021. BP told the Panel that when he first began working at WDC, the Registrant was working part-time and then he had started working full-time. BP was the Registrant’s line manager.

29. BP told the Panel that he had been present at a meeting with WM and the Registrant on 24 November 2022. The purpose of the meeting had been to fact find what had happened with a WPA invoice and to see if the Registrant was going to make an admission in relation to it. BP said that he was concerned about the payment having been hidden by the Registrant and about whether the Registrant would have said anything if he had not overheard WM asking a colleague to chase the invoice.

30. BP said that during the meeting, the Registrant admitted receiving payment from WPA for treatment conducted on behalf of WDC. BP said that in his time at WDC there had never been an incident where a payment due to WDC had been paid directly to a staff member.

31. BP confirmed that the amount of £390 owed to WDC was reclaimed from the Registrant through his wages and deducted from the balance of his last wage.

32. In answer to Panel questions, BP said the Registrant had been registered as a physiotherapist with WPA when he was self-employed and so would have a registration number for WPA. WPA would also have had the Registrant’s bank details. BP explained that the Registrant should have updated WPA when he became an employee of WDC and provided the insurers with WDC’s bank transfer details. BP said it was the responsibility of the physiotherapist to do this as WDC could not register as a client of WPA.

33. BP said that all physiotherapists working for WPA had to have a registration number. He also told the Panel that in the four years he had worked for WDC, there had probably only been three clients who had received treatment which had been paid for by WPA. BP said that the Registrant would have been told verbally to update WPA to change the bank details for his registration to those of WDC, and there may have been an email sent to the Registrant regarding this.

SA and AU

34. The Panel agreed to accept in evidence the signed witness statements of SR and AU

35. SA was an HCPC Case Manager employed by the HCPC from 22 August 2022. On 1 February 2024, SA signed a witness statement in relation to the Registrant regarding her enquiries of HCPC systems as to whether the Registrant ever provided any notification that he had been dismissed by WDC. SA is no longer employed by the HCPC and so AU who has been employed by the HCPC as an Operational Manager since August 2021, has adopted SA’s statement as his evidence to the Panel.

36. SA stated that she had conducted checks on the Registrant’s case file which indicated that the Registrant had not communicated with the HCPC to inform the Council that he had been dismissed by WDC on 25 November 2022. SA had accessed the HCPC’s Nexus system by typing in the Registrant’s fitness to practise (“FTP”) number. She had then filtered through Nexus to look at emails from the start of the case. She had also looked at the case investigation report which encapsulated everything that had happened once the case had reached the case investigation stage. SA said that the outcome of the search was that the Registrant had not notified the HCPC of his dismissal.

37. SA also said that there was no correspondence from the Registrant between 30 November and 11 December 2022, but she was unable to confirm if the HCPC’s management system could be reviewed to confirm whether the Registrant had contacted the HCPC before 11 December 2022. On 11 December 2022, the Registrant sent an email to the FTP general mailbox to the triage or threshold manager. SA said that in this email the Registrant was responding to an email sent to him previously concerning his current employment position. In his email of 11 December 2022, the Registrant had referred to his recent employment at Basildon Hospital and had provided his line-manager’s details and further contacts. However, the Registrant did not state in the email that he had been dismissed from WDC. SA said that there was no other correspondence after 11 December 2022 on the system.

38. SA referred to 9.5 of the HCPC’s Standards of Conduct, Performance and Ethics (“the Standards”) which states that a registrant must tell the HCPC as soon as possible if they have had any restrictions placed or they have been suspended because of conduct or competence.

The Registrant

39. The Registrant gave evidence to the Panel and provided written submissions to the Panel dated 8 February 2025. At this stage of the proceedings, the Registrant restricted his oral evidence to the facts alleged against him. His written submissions also covered matters more relevant to the issue of current fitness to practise.

40. The Registrant told the Panel that he had treated the client RP whose treatment was due to be paid by the insurer, WPA. The Registrant said that WM had asked for his WPA registration details which he had provided. He said that WPA had his bank details from payments paid to him when he had provided physiotherapy treatments on a self-employed basis.

41. The Registrant told the Panel that on or around 10 February 2022, WPA paid £390 into his bank account. He admitted that he had known as soon as he had seen this payment that WPA had made the payment in error as he had not received a self-employed payment for some time. The Registrant said that he knew the payment had been a mistake and that he should have “come clean”. He thought that WM and BP had been absent on leave at the time, and he had felt he needed to speak to them at the same time. The Registrant told the Panel that he knew he would be caught out and that he had become more afraid to speak out as time went by that he would be dismissed.

42. The Registrant explained that he had been very worried about the £390 payment as he was concerned that he would not be able to pay it back immediately because of his overdraft and because he also had a lot of other payments and bills due to come out of his account. The Registrant said that irrespective of this, he should have informed WDC that he had received the £390 payment so that it could have been repaid in a timely manner. The Registrant admitted that he had acted dishonestly in not informing WDC of the payment.

43. The Registrant told the Panel that he had been very worried, and even terrified at times, of the implications of its receipt. The Registrant said that he had tried to approach his managers on several occasions to discuss the payment, but he had been very scared of the consequences. The Registrant said that as time passed, he knew that the repercussions of not having declared the payment would be more and more severe. The Registrant said that rather than this spurring him on to raise the matter, it had had the opposite effect.

44. The Registrant told the Panel that on 18 November 2022, he had overheard WM talking to an administrative colleague about WPA not having paid for a treatment. He said he knew that he could no longer delay discussing the £390 payment and so he had spoken to WM, telling her that he had received the payment and offering to repay it. The Registrant said that he had said he was very sorry for not having informed WDC sooner. The Registrant said that at that time, WM had said that he could repay the £390 and, when asked by the Registrant, WM had said that she was not going to make him leave WDC.

45. The Registrant said that on 24 November 2022, he had attended a meeting with WM and BP and had been summarily dismissed from WDC for gross misconduct. He said he had been told that WDC was considering referring him to the HCPC.

46. The Registrant said that whilst he recognised his responsibility as a registrant to comply with the Standards, he had not been aware that he was required to notify the HCPC of his dismissal by WDC. The Registrant said that if he had known, he would have informed the HCPC of this. He explained that he had only known of this obligation on 21 December 2022 when the HCPC had advised him that his failure to notify was likely to be an allegation made against him. The Registrant said that had the HCPC asked him about WDC in its initial correspondence on 5 December 2022, he would have told them of his dismissal in his email response on 11 December 2022.

47. The Registrant acknowledged that he could never take back his failure to notify WDC of the payment immediately and accepted that his on-going failure to do so compounded his dishonesty and his breach of Standard 9.1 of the Standards. The Registrant said that his failure reflected badly on him and on the Physiotherapy profession and accepted that his conduct did not justify the public’s trust and confidence in him and his profession. He said that a member of the public learning of a dishonest physiotherapist might be put off seeking valuable treatment that they need.

48. The Registrant apologised wholeheartedly to WDC, to the HCPC, the public and to his profession for his dishonesty in retaining the £390 payment. He indicated that any physiotherapy career he has in the future would be on an employed basis, preferably within the NHS, where he would be unlikely to receive payments from insurers.

49. In relation to not informing that HCPC of his dismissal by WDC as soon as possible, the Registrant apologised for his breach of Standard 9.5 of the Standards. The Registrant said he recognised that the importance of registrants complying with Standard 9.5 was so that the HCPC could promptly investigate any concerns about a registrant’s conduct and take any necessary action to avoid any repetition of the alleged conduct that might cause damage to the public or the reputation of the profession. The Registrant said that he had reviewed the Standards to ensure that he was fully aware of them and compliant with them.

50. The Registrant made it clear that he took ownership of his mistakes, apologised unreservedly for them and, whilst not seeking to detract from his failings, said that they were isolated incidents in an otherwise unblemished career, and that he thought is very unlikely that his failings would be repeated.

51. In cross-examination, the Registrant confirmed that when he had seen the £390 in his account, he had known that the money was not his. He accepted that the onus was on him to inform WDC of the payment. The Registrant said that it had always been on his mind that he would be caught out and that he knew he would have to confess at some point. The Registrant accepted that it was likely he would have retained the £390 for longer had he not overheard the conversation on 18 November 2022.

52. In answer to Panel questions, the Registrant said that the £390 had been paid to him in error by WPA because he had not informed them that bank details against his registration number with them should be changed to WDC after he become an employee of WDC. The Registrant said that he had not had any contact with WPA regarding the payment and had not realised that WPA still had his registration and bank details. He said that the £390 had been absorbed into his overdraft and everyday spending and he had not put any money aside to repay it.

53. The Registrant said that there had been a number of times when he had intended to approach WM and BP to tell them of the £390 payment, but he had “chickened out at the last minute”. He accepted that both WM and BP were approachable and available if he had had the courage to speak to them about it.

Particular 1 was found proved

54. The Panel accepted and relied on the Registrant’s admission that he had received a payment of £390 from WPA that should have been paid to WDC. The Panel accepted the evidence of WM and BP regarding the payment. The Panel saw the notes of the meeting held on 24 November 2022 at which the Registrant admitted to WM and BP that he had received the payment.

55. The Panel also saw the WDC invoice Number RB1 dated 2 February 2022 for £390 which was sent to WPA, and the reissued invoice dated 5 August 2022. The Panel noted that both invoices stated, “all checks payable to WDC Physiotherapy” and set out the WDC BACS bank details. The Panel also saw a payment advice issued by WPA addressed to the Registrant which showed that it related to a payment to him of £390 in respect of invoice number RB1 dated 2 February 2022.

56. Accordingly, the Panel found Particular 1 proved.

Particular 2 was found proved

57. The Panel accepted and relied on the Registrant’s admission that he had not informed WDC of the payment of £390 until 18 November 2022.

58. The Panel also accepted the evidence of WM that it was on 18 November 2022 that the Registrant had first told her that he had received the payment of £390 from WPA.

59. Accordingly, the Panel found Particular 2 proved.

Particular 3 was found proved (in relation to Particular 2)

60. The Panel received and accepted legal advice as to how it should approach the issue of dishonesty. It had regard to the HCPTS Practice Note on “Making decisions on a registrant’s state of mind”. The Panel applied the test for dishonesty as set out in the case of Ivey v Genting Casinos [2017] UKSC (at para 74) [the Ivey test]. In applying the Ivey test, the Panel first decided the Registrant’s knowledge or belief as to the factual circumstances of his conduct in relation to Particular 2. The Panel understood that the Registrant’s belief did not have to be a reasonable one, so long as it was genuinely held. The Panel then considered whether, based on the factual circumstances as it had found the Registrant believed them to be, his conduct was dishonest by the (objective) standards of ordinary, decent people. The Panel understood that there was no requirement that the Registrant must appreciate that what he had done was, by those standards, dishonest.

61. In relation to the first part of the Ivey test, the Panel concluded that the Registrant’s state of knowledge and belief regarding the £390 payment was:
- that from the time he saw the payment in his bank account (some two or three weeks after 10 February 2022), the Registrant knew that it had been paid to him in error
- that the Registrant knew he should have informed his employer about the payment even though he had been overdrawn at the time
- that the Registrant’s work environment was such that he would have had many opportunities to inform WM and/or BP had he chosen to do so

62. Based on these factual circumstances, and applying the second part of the Ivey test, the Panel had no hesitation in concluding that the Registrant was dishonest when he did not inform WDC of the £390 payment until 18 November 2022. The Panel noted that this was a period of some nine months.

63. The Panel also relied on the Registrant’s admission that his conduct in Particular 2 had been dishonest.

64. Accordingly, the Panel found Particular 3 proved in relation to Particular 2.
Particular 4 was found proved

65. The Panel accepted and relied on the Registrant’s admission that between the dates set out, he had retained the payment of £390 that should have been paid to WDC. The Panel accepted the Registrant’s evidence that he had seen the payment in his bank account two or three weeks after it had been received and that his account was overdrawn at that time. The Registrant had confirmed that he had not repaid the £390 until it was deducted from his final salary at the end of November 2022.

66. The Panel also relied on the WPA payment advice which confirmed that the payment had been made on 8 February 2022, and it accepted WM’s evidence that she had been told in a telephone call with WPA that the £390 had cleared its bank account on 10 February 2022. The Panel also accepted WM and BP’s evidence that the £390 was not repaid by the Registrant until it was deducted from his final salary at the end of November 2022.

67. Accordingly, the Panel found Particular 4 proved.

Particular 5 was found proved (in relation to Particular 4)

68. The Panel applied the Ivey test when considering whether the conduct which it had found proved in Particular 4 was dishonest.

69. In relation to the first part of the Ivey test, the Panel concluded that the Registrant’s state of knowledge and belief in retaining the £390 payment between 10 February 2022 and 30 November 2022 was:
- that from the time he saw the payment in his bank account (some two or three weeks after 10 February 2022), the Registrant knew that it had been paid to him in error
- that the Registrant knew from that time that he should inform WDC of the error and arrange for how he could repay it
- that the Registrant has passed up several opportunities when he could have informed WDC
70. Based on these factual circumstances, and applying the second part of the Ivey test, the Panel had no hesitation in concluding that the Registrant’s conduct in retaining the £390 between the dates alleged was dishonest.

71. The Panel also relied on the Registrant’s admission that his conduct in retaining the £390 had been dishonest.

72. Accordingly, the Panel found Particular 5 proved in relation to Particular 4.

Particular 6 was found proved

73. The Panel accepted the Registrant’s admission that he had not notified the HCPC as soon as possible that he had been dismissed from his employment by WDC. It also accepted the Registrant’s evidence that it was only on 21 December 2022 after an email from the HCPC, that he had become aware that he should have informed the HCPC of his dismissal by WDC. The Panel concluded that the period during which the Registrant had not informed the HCPC of his dismissal by WDC was from 25 November 2022 (the date of his dismissal letter) to 21 December 2022 (the date the HCPC told him he might face an allegation regarding his non-disclosure), a period of around one month.

74. The Panel accepted the evidence of SA (which was adopted by AU) regarding her searches of the HCPC’s Nexus system which indicated that there was no correspondence from the Registrant between 30 November 2022 and 11 December 2022. The Panel noted that in the Registrant’s email of 11 December 2022, his response was limited to providing details of his current employment status and contact details for his line manager.

75. Accordingly, the Panel found Particular 6 proved.

Decision on grounds

HCPC submissions

76. Mr Khan submitted that any findings of dishonest conduct in this case would constitute misconduct. He submitted that the Registrant’s dishonesty was at the higher end of the scale of culpability as the Registrant had known from February 2022 that the £390 did not belong to him but had still retained it and kept silent about it for about nine months. He further submitted that this suggested the Registrant had no intention of ever repaying the £390. Mr Khan reminded the Panel of the evidence that the Registrant worked in an environment where he could have revealed that he had been paid in error by WPA. Mr Khan submitted that the Registrant’s dishonest conduct was in breach of Standard 9.1 of the Standards.

77. Mr Khan also submitted that although there was no time limit in Standard 9.5 for informing the HCPC of a dismissal, the Registrant’s conduct in not informing the HCPC of his dismissal as soon as possible fell short of what would be expected of a registered physiotherapist and so amounted to misconduct.
 
The Registrant’s submissions
 
78. The Registrant admitted that in breaching Standard 9.1, his conduct fell far below that expected of a registered physiotherapist and amounted to misconduct.  In relation to Standard 9.5, the Registrant admitted that he had breached this Standard and explained that he had not realised until he was told on 21 December 2022 by the HCPC it was likely that his not informing the HCPC that he had been dismissed by WDC would form part of the Allegation against him.   He accepted that this amounts to misconduct.
 
Decision 
 
79. The Panel had regard to the submissions of both parties and to the facts it had found proved.  It received and accepted legal advice.
 
80. The Panel was aware that whether the conduct it had found proved amounted to misconduct was a matter for its judgement.  In considering this, the Panel had in mind that misconduct involved a serious departure from the standards to be expected of a physiotherapist.   
 
81. In relation to Particulars 2 to 5 of the Allegation, the Panel had no doubt that the Registrant’s dishonest conduct (i) in not informing WDC of the £390 payment until 18 November 2022 and (ii) in retaining the £390 payment from when he had first seen it in his bank account until it was repaid from his salary after he was dismissed by WDC, amounted to a serious departure from the standards expected of a physiotherapist and that it therefore amounted to misconduct.   The Panel accepted and relied on the Registrant’s admission made at the outset of the proceedings, that this conduct amounted to misconduct.
 
82. In reaching this decision, the Panel also considered the HCPC Standards, in particular Standard 9.1 which states:
Standard 9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
 
83. The Panel noted that Standard 9 is headed “Be honest and trustworthy” and concluded that Standard 9.1 had been engaged and had been breached.  The Registrant had not made sure that his conduct justified the public’s trust and confidence in him and in his profession when he had not informed WDC about the £390 paid to him by WPA in error until 18 November 2022, or when he had retained the payment over a period of some nine months.  
 
84. The Panel was also satisfied that when the Registrant did not notify the HCPC as soon as possible of his dismissal by WDC, he breached Standard 9.5 which states:
Standard 9.5 You must tell us as soon as possible if:
- You have had any restriction placed on your practice, or been suspended or dismissed by an employer, because of concerns about your conduct or competence.
 
85. The Panel noted the relatively short period of time from the Registrant’s dismissal to his being informed that he might face an allegation regarding not informing the HCPC of his dismissal.  The Registrant was informed of his dismissal on 25 November 2022.  WDC made a referral to the HCPC on 28 November 2022 and the HCPC appear to have sent an email to the Registrant dated 5 December 2022 to which the Registrant responded on 11 December 2022 setting out his current employment situation, as requested.  The Panel did not have sight of the document attached to the HCPC’s email of 5 December 2022 and so it was not able to conclude that the Registrant had been asked to provide any information other than his current employment status and the contact details for his current line manager.  As already stated, the Registrant provided this information in his email of 11 December 2022, an email which the Panel did see.  
 
86. The Panel concluded that it was able to rely on the Registrant’s admission that he had breached Standard 9.5 in not informing the HCPC as soon as possible of his dismissal.  However, the Panel did not consider that this breach amounted to such a serious falling below the standards expected of a physiotherapist as to amount to serious misconduct. In the circumstances of this case, the Panel concluded that although there was a breach of Standard 9.5, it was not so serious as to amount to misconduct. The Panel decided therefore, that it could not rely on the admission made by the Registrant at the outset of the proceedings of misconduct in relation to Particular 6. 
 
87. Accordingly, the Panel found misconduct in relation to Particulars 2, 3, 4 and 5 only.
 
 
Decision on Impairment
 
Registrant’s further evidence
 
88. The Registrant gave further evidence in respect of his current fitness to practise.   He told the Panel that since his dismissal by WDC he had been working as a Bank Physiotherapist for both Basildon and Southend Hospitals.  There had been no issues regarding his conduct or his honesty during that time.  The Registrant referred the Panel to the evidence of the character witnesses set out in the bundle.  
 
89. The Registrant said he apologised profusely for his dishonest misconduct and said he understood that this had impacted negatively on his fellow physiotherapists, on his profession and on the wider public.  He explained that since his dismissal, he had read and updated his knowledge of the HCPC’s Standards.  
 
90. The Registrant said that looking to the future, he hoped to practise as a physiotherapist on an employed basis, preferably in the NHS, which would mean that it was less likely that he would receive payments from insurers.  This would mean that there was no repetition of his misconduct.  
 
91. The Registrant said that if he found himself in a similar situation in the future, he would inform the insurance company and he would “come clean” about it and repay any amounts sooner.  The Registrant said he wished that he had not acted dishonestly regarding the £390 payment and said the last two and a half years “had been hell on earth”.   He acknowledged that he had been very lucky to have been able to obtain bank physiotherapy work and said that he had applied for many jobs but had been turned down because of the HCPC proceedings.  
 
92. In answer to Panel questions, the Registrant explained that he had got into difficulties when he had left working for the NHS. The Registrant said that he had changed job from the public sector to the private sector largely because of the impact of Covid and lockdowns on his health.  He said that during that time, hospitals were very scary places to be.  The Registrant said that staff regularly left the NHS at that time for the same reasons.  He said that he had enjoyed working part-time in the private sector but that his salary had not been enough.    
 
93. The Registrant said that if the same circumstances happened again, he would inform the insurer and repay the amount due.  He said that he knew that honesty was the best policy.  The Registrant accepted that he had let his profession down.  The Registrant said that while he had read the HCPC’s Standards and had listened to podcasts, he had not undertaken any course designed to address the issue of dishonesty.  The Registrant said that he had reflected on what he had done and on what he should have done.   The Registrant repeated that he had let others down.
 
94. The Registrant said that the main learning point from his reflection on his misconduct was that he needed to be an honest person and be honest and open about everything.   He said that if he made a mistake, he needed to own up and then put it right.  
 
95. Looking to the future, the Registrant said that he was now … years old and was looking for stability in his employment.
 
Submissions 
 
96. Mr Khan submitted that the Registrant’s fitness to practise is impaired by reason of his misconduct and a finding of impairment was required to protect the public and the wider public interest.
 
97. Mr Khan referred the Panel to the four questions set out in the case of CHRE v. NMC and Grant [2011] EWHC 927 (Admin) and submitted that the answer to each was “yes”.   He submitted that the Registrant’s dishonest conduct had brought the reputation of the physiotherapy profession into disrepute and had breached a fundamental tenet of that profession  He reminded the Panel of its finding that the Registrant’s dishonesty was a serious departure from the standards expected of physiotherapists and its findings that the Registrant had known objectively and subjectively that he was acting dishonestly in not informing WDC of the £390 payment until 18 November 2022 and in retaining it during a nine month period set out in the Allegation.  He submitted that the dishonesty had been over a nine-month period and the Registrant had passed up several opportunities to tell his employers about the payment.  
 
98. Mr Khan also referred the Panel to the case of Cohen v. GMC [2008] EWHC 581 (Admin).  Mr Khan acknowledged that it was difficult to remedy dishonest conduct and submitted that the Registrant had not taken sufficient steps to do so.  The Registrant’s reflections were in his statement dated February 2025 which was some three years after the misconduct.  Mr Khan accepted that it was to the Registrant’s credit that he had three witnesses who have provided character evidence about him but submitted that the Panel should be cautious when considering remediation and conclude that the Registrant had not yet fully remedied his misconduct.  
 
99. Mr Khan submitted that circumstances had not changed significantly since the misconduct. The Registrant had not yet taken any relevant course to address his dishonesty.  He submitted that the Registrant may need more time to achieve full remedial action.  
 
100. Mr Khan submitted that there was some evidence of insight and referred to the Registrant’s admissions in the case.  He also submitted that overall, the mechanisms put in place by the Registrant to prevent a recurrence of his misconduct were not as sufficiently robust as they could be.  By way of example, Mr Khan referred to the Registrant’s evidence that he sought support as and when he thought he needed it.  Mr Khan referred to this as being a “reactive” as opposed to a “proactive” approach and submitted that what the Registrant had done was “too little and too late”.  Mr Khan specifically referred to the Registrant’s own assessment of the likelihood of his repeating his misconduct as it being “very unlikely that my failings will be repeated”.  Mr Khan submitted that this left open the possibility of repetition.    
 
Decision 
 
101. In reaching its decision on impairment, the Panel had regard to the HCPTS Practice Note on “Fitness to Practise Impairment”. The Panel took account of Mr Khan’s submissions. It also took note of the character references.  The Panel received and accepted legal advice. The Panel had in mind that the purpose of this hearing was not to punish the Registrant for past misdoings but was to protect the public against the acts and omissions of those who are not fit to practise.  The Panel noted that there were no clinical competency issues regarding the Registrant and no actual harm had been caused to any patient because of his misconduct.  
 
Personal component
 
102. In relation to the personal component, the Panel concluded that the misconduct found in this case, was capable of being remedied.  It acknowledged that it was more difficult, but not impossible, for a registrant to remedy misconduct which involves dishonesty.    
 
103. The Panel noted that the Registrant’s dishonesty was in respect of a single payment of £390.  Although no harm was caused to any patient, the dishonesty was against his employer, it persisted over a period of 9 months and had the potential to cause reputational harm to WDC and to the physiotherapy profession.  As the Registrant acknowledged in his written statement, “a member of the public learning of a dishonest Registrant might be put off seeking suitable treatment that they needed”.
104. The Panel acknowledged that the Registrant had been open about his situation.   It noted that the Therapy Lead for Children’s Physiotherapy and Occupational Therapy who had worked with the Registrant since October 2023, stated in their character reference that “[the Registrant] has been honest and candid about awaiting an HCPC tribunal …”.  
 
105. The Panel also concluded that while the Registrant had developed some insight into his misconduct, he had yet to achieve full insight.  The Panel acknowledged that the Registrant had demonstrated some insight when he had admitted receiving the £390 payment on 18 November 2022.  It was also to his credit that since the matter was referred to the HCPC, he had fully engaged with these proceedings, admitted all the factual allegations and the statutory ground of misconduct (albeit that the Panel judged that Particular 6 did not amount to misconduct).  The Panel was satisfied that the Registrant had shown proper and genuine remorse.  
 
106. The Panel considered that the Registrant had been candid in his evidence.  It took the view that the Registrant understood how the misconduct had occurred but was not sure that he had yet fully understood why he had chosen to be dishonest rather than tell his employers as soon as he knew of the payment made to him in error.  
 
107. The Panel considered that the Registrant’s approach to remediation appeared to be unstructured.  For example, the Registrant said he had listened to some Podcasts and done some reading and had “looked into” some training courses. The Panel noted that the Registrant only referred to having read the HCPC’s Standards, in particular Standard 9 “Be honest and trustworthy”.  The Panel noted that the Registrant had not produced any independent evidence to demonstrate that he has taken positive and verifiable steps to remedy the misconduct by, for example, attending relevant courses on ethics.  
 
108. The Panel did not consider that the Registrant had fully reflected on his misconduct.  He had attempted to reflect in his written statement, but the Panel considered that he could have gone much further. It considered that had the Registrant taken proper steps to remedy his misconduct, he might have developed the level of insight required to properly reflect upon that misconduct.  
 
109. The Panel was aware that being involved in regulatory proceedings could have a deterrent effect on a registrant but that on its own, without proper insight and reflection, did not rule out any repetition of misconduct in the future.
 
110. In these circumstances, the Panel concluded that there was a risk of repetition.  
 
111. The Panel has considered the risk of harm and concluded that the Registrant’s conduct risked harming WDC’s reputation and the reputation of his profession.  Physiotherapists treat vulnerable patients who might be put off accessing proper treatment if their confidence in the honesty and integrity of the profession is undermined.    
 
112. The Panel was satisfied that the Registrant’s fitness to practise is impaired on the personal component.
 
Public component
 
113. In relation to the public component, the Panel had no doubt that public confidence in the Physiotherapy profession and in the HCPC as its regulator, would be seriously undermined if there was no finding of impairment in this case. The Panel was satisfied that a reasonable and informed member of the public would be shocked and troubled if there was no finding of impairment where the Registrant had, over a period of some nine months, dishonestly retained monies which had been paid to him in error instead of to his employer and had not informed his employer of this until he thought he was about to be found out.   
 
114. The Panel concluded that the Registrant’s dishonest conduct had brought the Physiotherapy profession into disrepute.  The Panel was also satisfied that it would be failing in its duty to declare and uphold proper standards of conduct and behaviour in the Physiotherapy profession if it did not find impairment in this case.  Physiotherapists should be in no doubt that this sort of behaviour is unacceptable.  Honesty is a fundamental tenet of the profession. The Panel was satisfied that the Registrant’s conduct breached that fundamental tenet and given the risk of repetition of that conduct, the Panel also concluded that there was a risk that the Registrant was liable to breach that fundamental tenet in the future.  The Panel was satisfied that the Registrant’s fitness to practise is impaired on the public component.
 
115. The Panel therefore found that the Registrant’s fitness to practise is impaired on both the personal and public component.  Accordingly, the Panel found the Allegation was well founded.  
 
Decision on Sanction
 
116. In considering the appropriate and proportionate sanction the Panel was referred to, and took account of, the guidance set out in the HCPC’s Sanctions Policy. The Panel received and accepted legal advice. The Panel was aware that the purpose of any sanction it imposed was not to punish the Registrant, although it might have that effect, but it was to protect the public, to maintain confidence in the Physiotherapy profession and to uphold its standards of conduct and behaviour. The Panel also had in mind that any sanction it imposed must be appropriate and proportionate bearing in mind the nature and circumstances of the misconduct involved.
Submissions
 
117. Mr Khan set out the relevant principles regarding the imposition of a sanction but, as is the HCPC’s usual approach at the sanction stage, did not advance any specific sanction.  
 
118. The Registrant submitted that he had been a physiotherapist for 30 years.  It was the only job he had known, and he loved it and loved his profession.  He submitted that his misconduct had in effect related to one issue.   
 
119. The Registrant referred to having treated many grateful patients.  He repeated his profuse apologies and said that he was very remorseful.  The Registrant indicated that because of the physical strain of the proceedings on himself and his family, he would not repeat his misconduct.  
 
120. The Registrant stated that he was still the sole breadwinner for his family and that he was worried about how he would provide for his family and about how he would cope if he was unable to work as a physiotherapist.  
 
121. The Registrant said he understood that it was a very serious matter and asked the Panel to show him “mercy”. 
 
Decision 
 
122. The Panel considered mitigating and aggravating factors. The Panel first looked at the mitigating factors.  The mitigating factors are:
- there are no previous regulatory findings against the Registrant;
- the Registrant made full admissions as to the facts at the hearing, and admitted misconduct;
- the Registrant had developed some insight into his misconduct, and he had apologised and shown genuine remorse;
- when, on 18 November 2022, the Registrant had admitted to his employer that he had received the £390 payment into his account, he had not sought either then or at any time since, to deflect any blame for the payment onto WPA. 
123. The Panel considered whether there was any personal mitigation in relation to the Registrant’s health at the time of the misconduct.  It concluded that this did not explain the Registrant’s dishonesty and so did not amount to personal mitigation.  
 
124. In reaching its decision on sanction, the Panel considered and took account of the three character witnesses all of whom had provided very positive and supportive testimonials for the Registrant.
 
125. The Panel considered the following to be aggravating factors:
- the dishonesty was a breach of his employer’s trust;
- the Registrant’s role in the dishonesty was active in that once he had noticed the £390 payment in his bank account, he had retained it over a period of some 9 months;
- the Registrant had not taken verifiable or sufficient remedial steps to guard against the risk of repetition;
- the potential reputational harm to the Registrant’s employer.
 
126. The Panel considered the available sanctions in ascending order of seriousness.  This was not a case in which mediation was appropriate or proportionate.  The Registrant was no longer employed by WDC.  
 
127. The Panel decided that to take no action or impose a Caution Order in this case would not be appropriate or proportionate given that the misconduct could not be described as relatively minor in nature. The Panel could not rule out the risk of repetition because the Registrant had yet to develop full insight into the causes of his misconduct.  The Panel was satisfied that to ensure public confidence in the profession was not undermined, it must consider a more severe sanction. 
 
128. The Panel then considered a Conditions of Practice Order and in particular the matters set out in paragraph 106 of the Sanctions Policy which states:
 
“A conditions of practice order is likely to be appropriate in cases where:
• the registrant has insight;
• the failure or deficiency is capable of being remedied;
• there are no persistent or general failures which would prevent the registrant from remediating;
• appropriate, proportionate, realistic and verifiable conditions can be formulated;
• the panel is confident the registrant will comply with the conditions; 
• a reviewing panel will be able to determine whether or not those conditions have or are being met;
• the registrant does not pose a risk of harm by being in restricted practice”.
 
 
107 “Conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so.  Therefore, conditions of practice are unlikely to be suitable in cases in which the registrant has failed to engage with the fitness to practise process or where there are serious and persistent failings”. 
 
108 “Conditions are also less likely to be appropriate in more serious cases, for example those involving:…..dishonesty….”.
 
 
130. The Panel considered paragraph 109 which states in relation to serious cases and the imposition of a Conditions of Practice Order:
“However, it should only do so when it is satisfied that the registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated.”
 
131. The Panel found that the misconduct in this case was capable of being remedied although it recognised that it was more difficult to demonstrate that dishonest conduct had been remedied.  It did not consider that the Registrant’s conduct was “minor” or “unlikely to be repeated”.  The Panel considered that the Registrant had shown developing insight into his misconduct. However, until that was more fully developed, there remained a risk of repetition of the misconduct.   
 
132. The Panel also concluded that as this was a case involving dishonest conduct, it was not possible to devise appropriate, proportionate, realistic, and verifiable conditions which would address the concerns regarding the Registrant’s behaviour in this case. Where dishonesty was involved, appropriate conditions of practice were rarely appropriate, and they were particularly difficult to formulate.  
 
133. The Panel also concluded, given the nature of the misconduct and the difficulty in formulating appropriate and proportionate conditions to address the risk of repetition, that the imposition of a Conditions of Practice Order would not be sufficient to maintain public confidence in the Physiotherapy profession and in the regulatory process.      
 
134. The Panel next considered whether to impose a Suspension Order. It had in mind the following guidance from the HCPC’s Sanctions Policy: 
“121   A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors: 
 
• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated; 
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”
 
 
135. The Panel considered very carefully whether the Registrant’s misconduct and the risk of repetition ruled this sanction out.   The Panel was satisfied that the misconduct in this case did represent a serious breach of the Standards of Conduct, Performance and Ethics.  The Panel was also satisfied that, given some time, the Registrant should be able to achieve good insight and take appropriate steps to remedy his misconduct.  
 
136. Before deciding to impose a Suspension Order, the Panel re-considered paragraph 102 of the Sanctions Policy.  This states,
“A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate.   In these cases, panels should provide a clear explanation of why it has chosen a non-restrictive sanction even though the Panel may have found there to be a risk of repetition (albeit low)”.   
 
137. The Panel was satisfied that a Suspension Order in this case would not be “disproportionate” and so had concluded that paragraph 102 of the Sanctions Policy did not apply.
 
138. The Panel was satisfied that the appropriate and proportionate sanction in this case was a Suspension Order.  
 
139. The Panel then considered whether it should make a Striking Off Order.  The Panel considered the Sanctions Policy where, in paragraph 130, it is stated that such a sanction is one of “last resort for serious, persistent, deliberate or reckless acts involving” e.g., for “dishonesty,..”.   In this case, the Panel found that while the Registrant’s dishonesty was serious it was not persistent or deliberate, and so was not at the highest end of seriousness. 
 
140. The Panel also had in mind paragraph 131 which states: 
“A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory profession.  In particular where the registrant:
• lacks insight
• continues to repeat the misconduct
• is unwilling to resolve matters.
 
141. The Panel was not satisfied that to maintain public confidence in the Physiotherapy profession and in its regulatory process, and to uphold proper standards of conduct in the profession, that a Striking Off Order was required in this case.  The Panel concluded that such an Order would be punitive and therefore inappropriate and disproportionate in the circumstances of this case.  
 
142. The Panel decided that the period of suspension should be for 4 months.  The Panel decided that this period would allow the Registrant sufficient time to gain proper insight and to put sufficiently robust and structured measures in place to address the risk of repetition.  The Panel was satisfied that a Suspension Order for a period of 4 months would be appropriate and proportionate to maintain public confidence in the Physiotherapy profession or its regulatory body. Such an Order would send out an appropriate message to the profession about this type of misconduct. 
 
143. The Panel was aware that it could not bind a reviewing panel but considered that the following might be of assistance to it:
- attendance (virtually or in person) of the Registrant at the review hearing;
- a detailed reflective piece from the Registrant demonstrating his clear understanding of his dishonesty and breach of trust, and his understanding of the importance of honesty and candour in his profession;
- written evidence of any Continuing Professional Development (CPD).

 

Order

The Registrar is directed to suspend the registration of Mr Kevin Dunn for a period of 4 months from the date that this Order comes into effect

Notes

Interim Order

1. Mr Khan applied for an Interim Order. He submitted that given the Panel’s findings in relation to impairment and its reasons for imposing a Suspension Order for a period of 4 months, an Interim Suspension Order for 18 months was necessary to protect the public from the potential risk of harm and it was also in the wider public interest. Mr Khan submitted that an Interim Suspension Order would be consistent with the Panel’s findings.

2. The Registrant submitted that an Interim Order was not necessary and that he could use the period before the Suspension Order came into effect to put “things in order”.

Decision

3. The Panel decided to make an Interim Order under Article 31(2) of the Health Professions Order 2001. It was satisfied, for all the reasons set out in its determination above regarding the risk of repetition, that an Interim Order was necessary to protect the public and that it was otherwise in the public interest to maintain confidence in the Physiotherapy profession and to uphold its standards of conduct and behaviour.

4. The Panel was satisfied for the reasons set out in its determination that an Interim Conditions of Practice Order was not appropriate, and it therefore concluded that an Interim Suspension Order should be made in this case.

5. This Order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

 

Hearing History

History of Hearings for Kevin A M Dann

Date Panel Hearing type Outcomes / Status
11/03/2025 Conduct and Competence Committee Final Hearing Suspended
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