Duncan Burnside

Preliminary Matters

The Registrant’s response to the Allegation

1. When invited to respond to the Allegation, Ms McCormick, on behalf of the Registrant, stated that Particular 1 was accepted. She also stated that it was accepted that the statutory ground relied upon was met and that submissions would be made on the issue of impairment of fitness to practise.

2. The Panel accepted the Registrant’s admission of the fact that the Caution was administered in the circumstances alleged by Particular 1 of the Allegation; the admission was made on his behalf by Counsel and was consistent with the documentary exhibits that had been provided in the hearing bundle.

Conducting the hearing partly in private

3. At the commencement of the hearing, the Presenting Officer applied for a direction that the hearing should be conducted partly in private. The basis of this application was that there would be evidence of health matters impacting on the Registrant that would be said to be relevant to him obtaining drugs that were the subject of the Caution. On behalf of the Registrant, Ms McCormick agreed to the application.

4. Having taken and accepted the advice of the Legal Assessor, the Panel acceded to the application on the grounds advanced.

Background

5. In the early hours of 04 January 2023, the Police searched both the home and place of work of the Registrant. Nothing relevant was found at the Registrant’s place of work, but at his home address various substances were discovered, one of which was identified as Bromazolam after forensic analysis. Bromazolam is a Class C controlled drug.

6. On 10 July 2024, the Registrant appeared at the Magistrates’ Court on a charge of possession of a Class C controlled drug. No plea was entered by him, the admitted Caution was accepted by the Registrant, and the Court directed that the charge be withdrawn.

Decision on facts and grounds

7. As has already been stated, the Panel accepted the Registrant’s admission of Particular 1 of the Allegation, the sole factual issue alleged.

8. The acceptance of the Registrant’s admission that he accepted the Caution alleged meant that the statutory ground of conviction/caution was satisfied.

9. It followed that in order to decide whether or not the Allegation was well founded, the sole issue to be decided by the Panel was whether the Caution is currently impairing the Registrant’s fitness to practise.

Decision on impairment

10. The Presenting Officer made her submissions on current impairment of fitness to practise in writing. She submitted that the Registrant’s behaviour amounted to breaches of a number of the standards imposed by the HCPC’s “Standards of conduct, performance and ethics”. She also submitted that professionals in the position of the Registrant occupy a position of trust, and to justify that trust they are required to maintain high standards of personal and professional conduct. The possession of Class C controlled drugs, she submitted, damages the reputation of the profession and might cause the public to lose trust and confidence in it.

11. The Presenting Officer made clear to the Panel that it was the HCPC’s case that the Registrant’s fitness to practise was impaired on both the personal and public components.

12. Included in the hearing bundle was a Personal Statement prepared by the Registrant, a hospital discharge letter, and a number of character references.

13. It is convenient to deal with the character references at this stage. This was not a case in which the Registrant’s clinical ability had been called into question, and the Panel accepted that he is highly thought of as a Podiatrist. The Panel considered that character references in a case where the behaviour in issue is admitted are of limited value, and that is particularly so if the people providing the character references are unaware of the issue that has caused the reference to be tendered.

14. The Registrant gave evidence to the Panel under Affirmation. During his evidence, he adopted the Personal Statement contained in the hearing bundle and elaborated on the issue relating to the hospital discharge letter. The Panel found the Registrant to be a candid witness. To the Panel, his replies to questions appeared to be refreshingly uncoached.

15. On the basis of the evidence received by it, the Panel was satisfied that the following findings of fact that are relevant to the issue of current impairment of fitness to practise could properly be made:

• On 27 May 2022, the Registrant was discharged from hospital, having been admitted eight days earlier. During his time in hospital, the Registrant underwent [redacted] surgery.

• Following his discharge from hospital, the Registrant was prescribed Diazepam by the medical practitioners involved in his care. The Diazepam was prescribed both for pain relief and as [redacted] muscle relaxant. He was given two further repeat prescriptions.

• Given the nature of Diazepam, when prescribed it he was told that it would only be provided for a limited period of time.

• Being concerned that legitimate prescriptions of Diazepam might cease before making a recovery from the effects of the surgery, the Registrant purchased on the internet a drug he believed to be Diazepam, but which in fact turned out to be the Bromazolam that is the subject of the Caution. The purchase was made at an early stage following his discharge from hospital.

• While taking the (legitimate) Diazepam, the Registrant did not return to his practice, having taken approximately two months away from it to recover from the surgery.

• The Registrant experienced a better recovery from the surgery than he expected, and so in the event did not use the drug he bought over the internet. He did not dispose of it and it was found by the Police some months later when his home was searched.

• There have been no service user complaints or engagement with the Police before this matter.

16. Having observed and heard the Registrant, the Panel was satisfied that he is genuinely remorseful for having purchased a controlled drug online.

17. With these findings in mind, the Panel turned to decide whether the caution is currently impairing his fitness to practise. In reaching its decision, the Panel accepted the advice of the Legal Assessor and followed the guidance contained in the HCPTS Practice Note entitled “Fitness to Practise Impairment”. Accordingly, the Panel addressed the personal and public components separately.

18. With regard to the personal component, it is relevant to note the circumstances in which the Panel accepts the Registrant came into possession of the controlled drug. It followed [redacted] surgery, for which Diazepam was prescribed. The circumstances were very far from the possession of a controlled drug obtained for recreational purposes. That fact does not, of course, excuse the Registrant’s possession of it, but it is relevant to the issue of whether he would be likely to repeat the behaviour. After carefully taking all relevant factors into account, the Panel concluded that there is not an appreciable risk that the Registrant would repeat his actions.

19. Different considerations apply to the public component. The Panel heeded the guidance contained in the Practice Note, and in particular the terms of paragraphs 24 and 25 of it. It therefore addressed the points there described as “critically important”, namely:

• protecting service users:

• declaring and upholding proper standards of behaviour; and,

• maintaining confidence in the Registrant’s profession.

20. Having carefully considered the matter, the Panel did not find that issues arising from the caution give rise to future service users of the Registrant being exposed to the risk of harm. This was for two reasons. One is that there is not an appreciable risk of the Registrant again obtaining illegal drugs. The other is the fact that while he was legitimately taking Diazepam, he did not return to practice.

21. However, when the Panel addressed the other factors relevant to the public component, it was of the view that it is necessary to mark the matter with a finding of current impairment of fitness to practise. The illegal possession of any controlled drug is a serious matter when the offence is committed by a registered health professional, and that is so even when the explanation for its possession has been accepted by the Panel. Informed and fair-minded members of the public would be concerned by it, and they would tend to have their confidence in the Registrant’s profession and the regulation of it diminished were not action to be taken. Furthermore, it is necessary for the seriousness of it to be marked by a finding of impairment of fitness to practise to ensure that other professionals cannot behave in a like manner and escape professional consequences.

22. The finding that the Registrant’s fitness to practise is impaired on the public component means that the Allegation is well founded, and the Panel must go on to consider the issue of sanction.

Decision on sanction

23. After the written determination of the Panel set out above was handed down, the parties were given time before making submissions on sanction.

24. On behalf of the HCPC, the Presenting Officer reminded the Panel of the proper approach to the consideration of this issue of sanction and of the need to have regard to the HCPC’s Sanctions Policy. She made it clear that the HCPC did not submit that any particular sanction should be imposed, it being accepted that the appropriate sanction would be a matter for the Panel’s discretion.

25. On behalf of the Registrant, Ms McCormick’s primary submission was that it would be appropriate to conclude the case without the imposition of any sanction. If, however, the Panel did not agree with that primary submission, then a caution order would be appropriate. Ms McCormick developed submissions why any sanction more restrictive than a caution order would be disproportionate.

26. The Panel accepted the advice it received from the Legal Assessor on the issue of sanction and it heeded the guidance contained in the HCPC’s Sanctions Policy. A sanction is not to be imposed in order to punish a registrant against whom a finding has been made. Rather, a sanction is only to be imposed to the extent that it is required to protect the public, maintain public confidence, and declare and uphold proper professional standards. The first question is whether, applying these principles, any sanction is required. If it is, then the available sanctions must be considered in an ascending order of seriousness.

27. Before going further, the Panel identified the factors that were of particular relevance to the sanction decision. In the view of the Panel:

• There were no factors that aggravated the finding made. The finding itself (based as it was on possession of a controlled drug) is itself serious, and is not further aggravated by other factors.

• In favour of the Registrant, it was relevant to take into account that, while the obtaining of possession of the drug was obviously inappropriate, the Registrant did not possess it for recreational purposes.

• There is no suggestion that any service user was placed at risk of harm by the Registrant as he did not use the drug unlawfully possessed and he removed himself from practice while using the Diazepam lawfully prescribed.

• Not only was there no suggestion that the Registrant was an habitual drug user or abuser, the fact was that when the Police searched his home they found unused Diazepam that had been properly prescribed for him.

• The possession of the drug underlying the caution occurred nearly three years ago.

• The testimonials submitted by the Registrant, albeit not being relevant to the possession of drugs, attest to him being held in high professional regard.

• The Registrant has no history of regulatory concerns and has practised since the relevant events without any suggestion of improper conduct.

28. The Panel first decided whether the finding it had made required the imposition of any sanction. The conclusion of the Panel was that it did. To pass from the case without the imposition of a sanction would neither satisfy the public that, whatever the circumstances in which it comes about, the unlawful possession of controlled drugs is unacceptable, nor would it send the required message to other registrants.

29. The Panel therefore considered whether a caution order would be appropriate. In that regard, the Panel considered paragraph 101, which is in these terms:

“A caution order is likely to be an appropriate sanction for cases in which:

• the issue is isolated, limited, or relatively minor in nature;

• there is a low risk of repetition;

• the registrant has shown good insight; and

• the registrant has undertaken appropriate remediation.”

30. With regard to these factors, the Panel was of the view that:

• The issue is isolated and limited. Without minimising the seriousness of the possession of any controlled drug, it can be said to be relatively minor in nature in the sense that, as a Class C drug, it was a drug of the lowest category.

• For the reasons explained by the Panel in its decision on impairment of fitness to practise, there is a low risk of repetition.

• The Registrant has shown insight. His insight can be said to be better developed with regard to some aspects of the matter than with regard to others, but overall, the Panel concluded that it is sufficient to justify a caution order being considered as a potentially appropriate sanction.

• Past possession of a controlled drug is a breach that cannot be remediated save by it not being repeated. In that sense it has been remediated.

31. Taking all of the factors above into account, the Panel was of the provisional view that a caution order would be the appropriate sanction in this case. A caution order would appropriately mark the seriousness of the conduct whilst maintaining proper professional standards and confidence in the profession and the Regulator.

32. The Panel heeded the advice of the Legal Assessor that, having tentatively alighted on a sanction, the appropriateness of it can be assessed by whether a more restrictive sanction would be appropriate. The issue in this case is one that could not be addressed in any sensible manner by the imposition of conditions of practice, and so that would not be a sound basis for judging the appropriateness of a caution order. Accordingly, the Panel considered whether a suspension order would be appropriate. Having done so, the Panel was satisfied that a suspension order would be wholly disproportionate and inappropriately punitive. There is no suggestion that the Registrant has a drug problem that needs to be addressed. He did not place service users at risk of harm in the past and is unlikely to do so in the future. Furthermore, the Panel received positive evidence about the Registrant’s clinical ability and there is a public interest in permitting competent practitioners to remain in practice.

33. Having concluded that a conditions of practice order would not be appropriate and that a suspension order would be disproportionately severe, the Panel’s tentative view that a caution order was appropriate was confirmed.

34. The Panel then addressed the question of the appropriate length of the caution order. In that regard the Panel reminded itself of the fundamental reasons why a sanction is required. A sanction is required to reassure the public that possession of controlled drugs by a registered health professional, whatever the circumstances of that possession might be, is not acceptable. A sanction is also required to remind other registered health professionals that if they possess controlled drugs they will not escape regulatory action. In the judgement of the Panel, a caution order of 1 year will serve the purposes just described.

That the Registrar is directed to annotate the register entry of Duncan Burnside with a caution which is remain on the register for a period of 1 year from the date this Order comes into effect.

No notes available

History of Hearings for Duncan Burnside