Mr Amin M Sain
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1. Before addressing service and proceeding in absence, Mr Pye made submissions to the Panel about the legal concern raised at the original review hearing scheduled for 20 January 2016. The concern was that the panel reviewing the Conditions of Practice Order in July 2015 had determined to impose a further six month order with conditions of practice, but those conditions had been varied from the existing order. That panel’s determination expressed the order as having been made pursuant to Article 30(4)(a) of the HCPC Order 2001. However, the HCPC now submitted that there was an error in referring to that paragraph of the Order. Mr Pye invited the panel to treat the order of July 2015 as having been made under Article 30(1)(b) and thus taking effect on the expiry of the previous Conditions of Practice Order made in February 2014. This would give effect to the intentions expressed in the July 2015 determination and would mean that there was still an order to be reviewed today.
2. The Panel received advice from the legal assessor to the effect that, if the July 2015 hearing was a mandatory review, then the panel at that hearing was proceeding under Article 30(1). As a result, its order, which it was able to make, would have been made under Article 30(1)(b), whatever the determination itself might have said about Article 30(4)(a) – which this Panel noted did not confer a power to vary, which is contained in Article 30(4)(f).
3. The Panel considered that the general tenor of the HCPC’s legal argument had been notified to Mr Sain by letter and email, dated 5 February 2016, but there had been no response from him. The Panel had available to it not only the determination of the July 2015 hearing, but also the transcript of that hearing. It was clear to the Panel, from a review of these documents, that the hearing in July 2015 was indeed a mandatory review of the 18-month Conditions of Practice Order imposed in February 2014. It appeared that there had been an administrative slip in the drafting of that decision by the use of the term “varied” and the reference to Article 30(4)(a). Therefore, the Panel was satisfied that the proper paragraph of Article 30 that was active was paragraph 1 relating to mandatory reviews. In those circumstances, the power exercised by the July 2015 panel should have been expressed in terms of Article 30(1)(b) with the further six month order coming into effect on the expiry of the order being reviewed. In the Panel’s view, this is the correct interpretation of how the July 2015 hearing proceeded and gives full effect to the decision made by the panel at that hearing.
4. Mr Sain was neither present nor represented at this hearing. The Hearings Officer took the Panel through the proof-of-posting documentation, which demonstrated that, by letter dated 22 January 2016, sent by post to his address as it appears in the Register, the Council notified Mr Sain of the correct date, time and venue for this hearing, which had been rescheduled following the adjournment of the hearing on 20 January 2016. The Panel had regard to the Council’s Practice Note on Service of Proceedings. The Panel was satisfied that notice had been duly served by post in accordance with Rule 3 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules).
5. Accordingly, the Panel went on to consider whether to accede to Mr Pye’s application to proceed with the hearing in Mr Sain’s absence in accordance with Rule 11 of the Rules. The Panel has had regard to the submissions of Mr Pye, the advice of the Legal Assessor and the contents of the Practice Note “Proceeding in the Absence of the Registrant”, dated August 2012. Mr Pye confirmed to the Panel that there has been no contact from Mr Sain in relation to this hearing or indeed since the early review hearing in January 2015.
6. The Panel has had at the forefront of its consideration that the discretion to proceed in the absence of Mr Sain is one that must be exercised with the utmost care and caution. The central consideration is whether Mr Sain can be said to have voluntarily absented himself from the hearing. The Panel has borne in mind the need to strike a careful balance between the interests of Mr Sain and the wider public interest. The Panel has taken appropriate account of the list of considerations set out in the Practice Note and that this review is a statutorily required one and falls just over a week before the expiry of the current order. The Panel noted that Mr Sain did not attend the last review hearing in July 2015, nor has he engaged with the HCPC since January 2015. The Panel considered, in the absence of information to the contrary, that an adjournment would be unlikely to secure Mr Sain’s attendance. He has demonstrated an ability to engage with the HCPC when he wishes to and there is no explanation for his lack of contact over the last 12 months.
7. In the circumstances, the Panel was satisfied that the Council had made all reasonable efforts to bring this hearing to Mr Sain’s notice. The Panel concluded that Mr Sain can be said to have voluntarily absented himself from this hearing. Thus, the Panel was satisfied that it was appropriate to proceed to hear this substantive review in Mr Sain’s absence under rule 11 of the Rules.
8. The original allegations set out in the head of this document were found proved at the final hearing which concluded on 29 March 2009. The 2009 panel found that Mr Sain lacked the knowledge to perform minimally invasive surgery safely. It found that Mr Sain had proceeded to undertake such surgery knowing that he was not fully qualified to do so. The panel found that this amounted to misconduct as did Mr Sain’s association with a website which purported to be an established regulator of podiatric surgery.
9. The 2009 panel accepted that Mr Sain had gone some way towards completing a satisfactory training programme. However it also held that in not seeking to develop his skills in relation to traditional open site surgery, and lacking the ability to prescribe antibiotic medication, he lacked the full knowledge necessary to perform surgery safely. With regard to the allegation founded on the website, the Panel found that he knowingly allowed himself to be described as “Dr Amin M Sain” and as the UK Director of the GPSC. The Panel found that the website’s inclusion of a contention that the General Podiatric Surgery Council was “much like a GMC [General Medical Council]” gave a misleading impression that the GPSC was an established regulator, whereas it was nothing of the kind. The 2009 Panel concluded that Mr Sain’s fitness to practise was impaired and imposed a Conditions of Practice Order for a period of three years.
10. The original Order was reviewed on 20 February 2012. Mr Sain did not attend that review but notified the panel in advance that he had no new information for the review. That reviewing 2012 Panel was concerned at the content of a website print which appeared to refer to Mr Sain performing minimally invasive surgery in breach of the conditions of practice imposed in 2009. That, coupled with the failure of Mr Sain to provide any evidence that he had complied with the Conditions of Practice Order, led the panel to revoke that order and replace it with a Suspension Order for one year.
11. On 17 January 2013 a panel carried out a review of the suspension order imposed on 20 February 2012. Mr Sain attended that review. The 2013 panel stated that it was unable to accept that there had been any change of circumstances since the previous review of the Order. The 2013 Panel considered that Mr Sain was unclear as to the distinction between general podiatry and podiatric surgery, and had limited insight into and understanding of the implications of practising podiatric surgery without the appropriate qualifications. The 2013 panel accepted that Mr Sain had an interest in podiatric surgery but was concerned whether he was prepared to accept that he must not undertake such surgery. Additionally, the 2013 panel stated that Mr Sain had not demonstrated that he had taken steps to maintain and update his knowledge of general podiatric practice. The 2013 panel ordered that the period of suspension should be extended for a further year.
12. The Suspension Order was reviewed on 07 February 2014. Mr Sain informed the 2014 Panel that he had not undertaken surgery during the Conditions of Practice Order or practised at all since the first period of suspension commencing 20 February 2012. The 2014 panel accepted this and was of the view that the time had come to decide whether either Mr Sain should be permitted to return to practice, subject to conditions, or be removed from the register. The 2014 panel was concerned that Mr Sain had not been practising for some time, and needed to be reminded of his on-going obligation to keep his skills and knowledge up to date in the interests of public protection and indeed of the ordinary obligations of a registrant to remain within their scope of practice, to meet the CPD standards and to comply with the Return to Practice Standards if they apply. Having considered all matters the 2014 panel imposed a Conditions of Practice Order for a period of 18 months.
13. On 19 January 2015 there was an early review of the order carried out in accordance with Article 30(2) of the Health and Social Work Professions Order 2001 at the request of Mr Sain. He attended this hearing and gave evidence to the panel (the January 2015 panel). Mr Sain provided some certificates for the January 2015 panel to consider in addition to the Training and Refresher Course and the HCPC updating form that Mr Sain provided as required by the conditions of practice. Mr Sain told that hearing that he had learnt his lesson and that he would in future abide by the requirements of the HCPC as regulator.
14. Mr Sain went on to state that he had studied the HCPC booklet entitled ‘Returning to Practice’ since this matter was last reviewed and felt that he was ready to return to unrestricted practice. Mr Sain explained that he had chosen the particular areas in his private and formal study as he thought these would best refresh his knowledge and make him a more proficient practitioner. Mr Sain listed the courses that he had attended but not all the corresponding certificates were put before the January 2015 panel.
15. Mr Sain confirmed that he had not undertaken any work as a podiatrist since the last review and was working part time in a shop. He stated that he now felt confident that he was safe to return to practice unrestricted. He confirmed that he had not attempted to undertake any shadowing work.
16. The January 2015 panel said this about Mr Sain’s evidence to them:
“13. As regards the private component Mr Sain is to be commended for attending at this hearing and for engaging fully in this process. The Panel acknowledges that Mr Sain has taken some steps to address the failings in his practice but finds that this process is not yet complete. The private and formal study that Mr Sain has chosen to complete do not fully address the concerns raised by the previous panel. His answers to questions put to him by the Panel today did not display the degree of insight that the Panel would have expected to see given the number of years Mr Sain has been involved in this regulatory process.
14. In summary the Panel finds that Mr Sain still has only limited insight into his failings and that the steps that he has taken to remedy the shortcomings in his practise have not yet been successful. The Panel finds that Mr Sain is not yet ready to return to unrestricted practice.
15. In respect of the public component the Panel took into account the seriousness of the findings made against Mr Sain. The Panel has already found that these have not been remediated and is satisfied that the public interest would not be served by allowing Mr Sain to return to practice unrestricted. To allow him to do so would have detrimental effect on the confidence members of the public are entitled to have in the podiatry profession and on this regulatory process.
16. In summary the Panel has concluded that the past failures on the part of the Registrant have not been remedied, there remains a real risk of repetition and the Panel finds that Mr Sain’s fitness to practise remains impaired. The Panel is also concerned that Mr Sain has not been working in a clinical setting for a considerable time and that this has an impact on his return to unrestricted practice.”
17. The Conditions of Practice Order reviewed by the January 2015 panel at an early review was then considered again by way of mandatory review in July 2015. At that hearing the panel (the July 20115 panel) did not have the benefit of any attendance or new information from Mr Sain. The July 2015 panel expressed continued concern about Mr Sain’s lack of sufficient insight into his original shortcomings and the consequent concern about repetition. The July 2015 panel also expressed concern about Mr Sain’s having been away from practice for an extended period of time and the absence of evidence about how, if at all, he had kept his knowledge and skills up to date. Having found Mr Sain’s fitness to practise still impaired, the July 2015 panel imposed a further six month Conditions of Practice Order, which included a condition requiring a reflective statement about the insight that Mr Sain had developed into his misconduct. The conditions also required 30 days of supervised clinical practice and a report to the HCP about Mr Sain’s clinical competence. The July 2015 panel explained the reasoning behind a further period of conditions of practice in this way:
“26. The Panel finds that a further period under conditions of practice should allow Mr Sain to prove to a future panel that he has fully addressed the outstanding concerns relating to his practice. These proceedings have drawn on for many years and the Panel needs to see the evidence requested that Mr Sain is committed to his profession and can evidence his safe practice.
...28. These conditions are intended to be workable and proportionate, in addressing the public interest and those of Mr Sain. Mr Sain is able to request an early review if he can demonstrate compliance with the new conditions, or indeed to contact the HCPC if these conditions are not workable for him. Mr Sain should be in no doubt that unless he is able to engage fully with this process to enable him to return to unrestricted practice, he runs a real risk of losing his registration at the next Review.”
18. At this hearing, Mr Pye outlined the background and the absence of any further communication from, or engagement by, Mr Sain. He pointed out the basis of the July 2015 panel’s decision to impose a further six month Conditions of Practice Order. He submitted that the Panel had no evidence to suggest that Mr Sain’s insight was any greater today than it had been on previous occasions and that, therefore, his practice should be found to be currently impaired. The Panel would then need to go on to consider the Indicative Sanctions Policy (ISP) in determining which would be the appropriate sanction. Mr Pye submitted that all options were open to the Panel and noted the length of time that these proceedings had been continuing.
19. The legal assessor advised the Panel as to the approach it should take to the question of current impairment, particularly as this was, at least in part, a case relating to clinical competence. Previous panels had clearly considered that the misconduct was remediable; the question for the Panel today was whether it could take the view that the misconduct had been remedied and was highly unlikely to be repeated. The Panel also had to bear in mind the public component and, particularly, the maintenance of public confidence in the profession. If satisfied about impairment, then the legal assessor took the panel to the ISP and reminded it of the definition of proportionality.
20. The Panel accepted the advice of the legal assessor in respect of the approach to be taken when considering this review. The Panel has applied its independent judgment to the question, first, of whether there is continuing impairment – taking proper account of the factors set out in the relevant Practice Note.
21. The Panel noted that there has been no evidence at all produced by Mr Sain for this review. This was despite, as the Panel noted, the decision of the July 2015 panel which could not have been clearer that its order was very much by way of a ‘last chance’ for Mr Sain to demonstrate that he had full insight into his misconduct and that he was safe to return to practice.
22. The Panel took into account the findings of each of the panels that had considered this matter since 2009 and, in particular, the findings of the January 2015 panel which had the benefit of seeing and hearing from Mr Sain directly. The Panel could not help but observe that in January 2015 Mr Sain’s oral evidence did not reassure the panel about the extent of his insight, which this Panel considers to be a crucial element in its determination of current impairment. The July 2015 panel also gave a clear steer to Mr Sain on the question of insight by including a condition specifically directed at his reflection on the misconduct, but Mr Sain has not availed himself of the opportunity to demonstrate that his insight is any greater now than it was 12 months ago. The Panel is driven to the conclusion that Mr Sain has still not developed sufficient insight into his misconduct, both from the perspective of public protection and from that associated with the wider public interest, i.e. the maintenance of public confidence in the profession and the declaration and upholding of standards of conduct and behaviour within the profession of Chiropody/Podiatry.
23. Thus, on both the personal and the public components, the Panel has reached the conclusion that Mr Sain’s fitness to practise remains currently impaired.
24. The Panel then considered which of its powers under Article 30(1) it should exercise to address this continuing impairment. The Panel took account of the Indicative Sanctions Policy and, in particular, of the need to ensure that any sanction imposed is reasonable and proportionate to the issues giving rise to the finding of impairment. The Panel was also mindful that the purpose of sanction is not to be punitive, but to ensure adequate protection of the public and of the public interest, which is the maintenance of public confidence in the profession, as well as the declaration and upholding of proper standards of conduct and behaviour within the profession.
25. The Panel noted that Mr Sain has not taken advantage of any of the Conditions of Practice Orders (or the Suspension Order) to reflect on his shortcomings and to address the deficiencies identified time and time again in the various determinations of panels at the HCPC since 2009.
26. In light of this, the Panel was satisfied that some form of restriction on Mr Sain’s practice remained necessary. It took the view that no action or a Caution Order would be wholly inadequate to protect the public and to maintain public confidence in the Chiropody/Podiatry profession, given the very extended period over which concerns about Mr Sain’s practice have continued and not been adequately remedied.
27. The Panel next considered whether a conditions of practice order would be a suitable disposal, but decided that this type of sanction would be inadequate to protect the public or address the wider public interest in the absence of any engagement from Mr Sain. Furthermore, the ISP states that:
“27. The imposition of conditions requires a commitment on the part of the registrant to resolve matters and therefore conditions of practice are unlikely to be suitable in cases:
[where] the registrant lacks insight …”
28. The Panel noted that Conditions of Practice have been in place for a large proportion of the almost seven years since the final hearing in February 2009 and Mr Sain has still failed to comply to an extent that would reassure a panel of his fitness to practise. The July 2015 panel gave a clear indication that the varied conditions that it imposed were a last opportunity for Mr Sain to demonstrate his commitment to his profession and to retaining his registration. Conditions of Practice can no longer be said to be workable.
29. The Panel then considered whether a further period of suspension would be adequate to address the public interest in this case. Whilst it would clearly address public protection in that Mr Sain would be unable to practise as a chiropodist/podiatrist, the Panel was concerned that such an order would be inadequate to maintain public confidence or meet the other public interest aspects in the case. The Panel noted that, under the heading of Suspension Order, the ISP states that:
“34. If the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option.”
30. The Panel formed the view, from a careful analysis of the lengthy history of this case, noting in passing the allegations date back to 2005, that Mr Sain appears unable, for whatever reason, to resolve or remedy his failings. On the evidence, the Panel could conclude that he seemed unwilling to do so, but in any event he has not done so and there comes a point at which the regulatory process must come to an end if the unjustifiable protraction of the proceedings is not, in itself, to lead to a diminution in the public’s confidence of its effectiveness.
31. Having given the matter very careful consideration, the Panel concluded that the necessary and proportionate sanction to impose is a Striking Off order. The Panel noted, particularly, that the ISP states this about a Striking Off order:
“41. Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. An inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate.”
32. The Panel was satisfied that there was little alternative in the specific circumstances of this case than to conclude that there remained a significant lack of insight from Mr Sain and that he had demonstrated, over an extensive period of time, an inability or unwillingness to resolve the failings identified in respect of his fitness to practise. As the Panel already noted, Mr Sain has had very many opportunities to demonstrate that he is fit to remain on the register, but he has not done so.
That the Registrar is directed to strike the name of Amin M Sain from the Register on the date this order comes into effect.
History of Hearings for Mr Amin M Sain
|Date||Panel||Hearing type||Outcomes / Status|
|11/02/2016||Conduct and Competence Committee||Review Hearing||Struck off|