Mr Roderick Orner

Profession: Practitioner psychologist

Registration Number: PYL17480

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 21/11/2016 End: 17:00 21/11/2016

Location: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Not well founded

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Allegation

(Found not proved at the Final Hearing)

Whilst registered as a Practitioner Psychologist you were asked to undertake an assessment of Service User A and you:

1. On or around 26 September 2014 during your appointment with Service User A* you did not clearly explain to Service User A the purpose of the second appointment you invited her to attend.

2. On or around 3 October 2014 during your appointment with Service User A , you made inappropriate and/or unprofessional comments in that you:
a) Asked Service User A more than once “why have you not come on your own?” or words to that effect;
b) Stated that Psychologist B’s^ report was “not worth the paper it is written on” or words to that effect;
c) Indicated that Service User A would be discriminated against if you wrote a report that referred to her as having PTSD.

3. The matters as described in paragraphs 1 - 2 constitute misconduct and/or lack of competence.

4. By reason of that misconduct and/or lack of competence your fitness to practise is impaired.

Finding

Preliminary matters

1. The Panel has been convened to undertake the final hearing of the allegations made by the HCPC against Dr Orner.

2. The HCPC’s case against Dr Orner concerns a complaint made by Service User A against Dr Orner.  Dr Orner was instructed to prepare a report to support an appeal by Service User A to her university in relation the final grade awarded to her in her degree.  Service User A attended two appointments with Dr Orner, and the factual particulars in the allegation arise from alleged comments made by Dr Orner during those appointments.

3. In order to explain the decisions that have been reached by the Panel, it is necessary to set out a chronology:

• On 6 March 2015 a panel of the Investigating Committee determined that there was a case to answer in relation to the allegations that are set out above.

• Subsequently, a notice of hearing was sent to Dr Orner notifying him that the final hearing would take place over three days commencing on 29 March 2016.

• On 2 March 2016 an application was made to a panel of the Conduct and Competence Committee for special measures to be ordered so as to enable the sole witness in this case, Service User A, to be permitted to give evidence from behind a screen.  Dr Orner opposed the application.  The panel refused to direct that Service User A should be permitted to give evidence from behind a screen, concluding that the information that had been provided amounted only to general feelings of discomfort in Dr Orner’s presence.  The information was insufficiently detailed or particularised to bring the circumstances within the rule permitting special measures to be ordered.

• On 28 March 2016, two days before the final hearing was due to commence, Service User A emailed the HCPC and stated that she was suffering from gastroenteritis and was unable to give evidence.  The following day, 29 March 2016, the HCPC attempted to contact Service User A to request that medical evidence be sent supporting the contention that had been made in the email the previous day.  Her father stated that she was abroad and was going to be away for a fortnight.  When the issue of the contention of illness was raised, her father stated that Service User A “had been unwell but that she was away”.

• Service User A did not attend the final hearing on 30 March 2016.  The HCPC applied to be permitted to rely on her witness statement as hearsay evidence.  Dr Orner objected to that application, and the panel refused it.  In a carefully reasoned decision the panel concluded that Dr Orner should have an opportunity of challenging Service User A’s evidence by cross-examination.  When the Panel refused it permission to rely on the witness statement as hearsay evidence, the HCPC then applied for the case to be adjourned, submitting that to refuse the adjournment would result in the case failing, and that would be premature for that to occur at that time.

• Following the adjournment of the final hearing, in May 2016 a further vulnerable witness assessment was conducted.

• On 3 August 2016 a notice of hearing was sent to Dr Orner notifying him of the present hearing.

• On 7 October 2016 a second application was made for a direction that special measures should be permitted.  The vulnerable witness assessment undertaken on 29 May 2016 was relied upon in support of the application.  It was again requested that Service User A should be permitted to give evidence from behind a screen.  The application was again opposed by Dr Orner.  The panel hearing the application refused the application, finding that the assessment did not demonstrate that Service Use A’s evidence would be so adversely affected by sight of Dr Orner that screens would be a proportionate measure to apply.  The panel stated that in refusing the application that it should not prevent the engagement of Service User A in any subsequent hearing.

• On 11 October 2016 and again on 17 October 2016 there were conversations between employees of the HCPC’s Solicitors and Service User A which cast doubt over whether she would attend the hearing today.

• On 15 November 2016 the HCPC made an application for a witness order compelling Service User A to attend the present hearing.  The Panel Chair decided that the application could not be considered on a number of grounds that included the fact that Service User A had been given insufficient time to respond to notification of the HCPC’s intention to make the application.

4. When the Panel attended this morning it was informed that Service User A was not in attendance and were aware that there was no prospect of her attending.  The Presenting Officer requested an adjournment until 1:30pm so that an attempt could be made to contact Service User A so that she could be asked whether she would be prepared for disclosure to be made to Dr Orner of the grounds why she did not feel able to attend to give evidence.  The Presenting Officer stated that the HCPC viewed this information to be important for the purposes of an application to be made to rely on Service User A’s witness statement as hearsay evidence.

5. The Panel agreed to the adjournment until 1:30pm on the first day of the hearing so that an attempt could be made to contact Service User A. When the Panel sat at 1:30pm it was told that contact with Service User A had not been made.  The Presenting Officer then made an application for the witness statement of Service User A to be received by the Panel as hearsay evidence.  Dr Orner opposed the application.

Hearsay evidence application.

6. In reaching its decision on the hearsay evidence application, the Panel applied the principles drawn to its attention that were drawn from the cases Bonhoeffer v GMC [2011] EWHC 1585 (Admin.) and Thorneycroft v Nursing & Midwifery Council [2014] EWHC 1565 (Admin.). 
The Panel was guided by the following principles in Bonhoeffer:

(i)     Disciplinary proceedings against a professional, even though not criminal, may still bring into play issues, as set out in Article 6 of the Human Rights Act, regarding a fair trial and the right to cross examine a witness;

(ii) The issue of a fair trial in disciplinary proceedings is one which must be considered in the round, having regard to all relevant factors;

(iii) The relevant factors include the seriousness and nature of the allegations, the gravity of the adverse consequences to the accused party in the event of the allegations being found to be true;

(iv) In disciplinary proceedings, which raise serious charges, amounting to in effect criminal offences, which if proved are likely to have grave adverse effects on the career and reputation of the accused party, if reliance is sought to be placed upon the evidence of an accuser between whom and the accused there is an important conflict in evidence, as to whether misconduct took place, if that amounted to a critical part of the evidence, there would need to be compelling reasons why the requirement of fairness and the right to a fair hearing, did not entitle the accused party to cross-examine the accuser.

(v) “The more serious the allegation, the greater the importance of ensuring that the accused doctor is afforded fair and proper procedural safe- guards. There is no public interest in a wrong result” (paragraph 129 per Stadlen J). 


From Thorneycroft, the Panel had regard to the following additional guidance:

1) The admission of a statement of an absent witness should not be regarded as routine. The Panel should consider the issue of fairness before admitting the evidence.

2) The fact that the absence of the witness can be reflected in the weight to be attached to their evidence is a factor to weigh in the balance, but it will not always be a sufficient answer to the objection to admissibility.

3) The existence or otherwise of a good and cogent reason for the non-attendance of the witness is an important factor. However, the absence of a good reason does not automatically result in the exclusion of the evidence.

4) Where such evidence is the sole or decisive evidence in relation to the charges, the decision whether or not to admit it, requires the Panel to make a careful assessment, weighing up the competing factors. The Panel should have regard to the issues in the case, the other evidence which is to be called and the potential consequences of admitting the evidence. The Panel must be satisfied that the evidence is demonstrably reliable, or alternatively that there will be some other means of testing its reliability.

5) The Panel also had its attention drawn to the 7 factors set out in paragraph 56, including: whether the statement is the sole and decisive evidence in support of the charges; the nature and extent of the challenge to the contents of the statement; whether there was any suggestion that the witness had fabricated the allegations; the seriousness of the allegation and potential impact on the Registrant’s career; whether there was a good reason for the nonattendance of the witness; whether the HCPC had taken reasonable steps to secure the attendance of the witness and the fact that the Registrant did not have prior notice that the witness statement was to be read.

7. Service User A is the only witness relied upon by the HCPC.  Her evidence is essential for the HCPC to prove the factual particulars advanced in the case and Dr Orner disputes her evidence.  When the Panel applied these principles set out above to these circumstances it concluded that Dr Orner would be deprived of a fair opportunity to conduct his case if he were to be denied the opportunity to challenge the evidence of Service User A by cross-examination.  There were no measures the Panel could apply to remove the prejudice he would suffer if the HCPC were to be permitted to rely on hearsay evidence.

8. It followed from these findings that the Panel rejected the application for the witness statement of Service User A to be relied upon as hearsay evidence.

Application for evidence to be received by telephone.

9. While the Panel was considering its decision on the hearsay evidence point, the Presenting Officer received a message to the effect that Service User A would make herself available to give evidence by telephone at 11:30am on the second day of the hearing.  The application was made on the basis that Service User A was a vulnerable witness as she was a person complaining of intimidation.  Dr Orner opposed the application on the basis of the issue of Service User A’s alleged vulnerability has been rejected twice and should not be accepted on a last minute application based upon the same vulnerable witness assessment that had been used advanced on 7 October 2016.

10. The Panel asked the Presenting Officer to make enquiries as to the period of time for which Service User A could be available.  The Panel was subsequently told that Service User A would be available for 30 minutes at 11:30am on the second day of the hearing and for two hours on the third and final day of the hearing.

11. The Panel concluded that it would not permit Service User A to give evidence by telephone.  Dr Orner’s ability to cross-examine Service User A remotely would be constrained.  It would not be possible for the demeanour of the witness to be seen by him or to be assessed by the Panel.  For this reason the Panel would not have permitted her to give evidence by telephone even if her availability had been greater.  As it was, that availability was so limited there would probably be insufficient time for her to be examined in chief, cross examined and to be asked supplementary questions by the Panel.  Furthermore, the fact that the longer period of availability would have been on the final day scheduled for the hearing would almost certainly have resulted in the case not concluding in the time allocated.  A further delay in the case concluding was a further element of prejudice to Dr Orner.

HCPC offering no evidence and inviting a finding of “not well founded”.

12. When the Panel announced its decision that it would not permit Service User A to give evidence by telephone, the Presenting Officer stated that the HCPC would offer no evidence against Dr Orner and invite a finding that the allegations are not well founded.  As Service User A was the only witness relied upon by the HCPC and was not physically present to give evidence, and as the Panel had rejected the applications to adduce her evidence as hearsay or by telephone, there was in truth no evidence that was available for the HCPC to produce.  The HCPC did not seek a further adjournment of the case so that a further attempt could be made to secure the attendance of Service User A to give evidence in person on a future occasion.

13. The Panel accepted the advice of the Legal Assessor that it had a residual discretion to require steps to be taken if it considered that the HCPC should not be seeking the termination of the case with a finding that the allegations are not well founded, to require the case to continue.  In practical terms this would require the Panel to direct that the case should be adjourned with a direction that Service User A should be required to attend the hearing.

14. The Panel considered whether it should override the decision of the HCPC to seek an end to the case, but concluded that it should not.  The history of the case did not suggest that the attendance of Service User A at the hearing to give evidence in the ordinary way would be likely.  Accordingly, the Panel accepted that the case should conclude with a finding that allegations are not well founded.

Order

The Panel decided that the case was not well founded at the facts stage of the decision making process.

Notes

No notes available

Hearing History

History of Hearings for Mr Roderick Orner

Date Panel Hearing type Outcomes / Status
21/11/2016 Conduct and Competence Committee Final Hearing Not well founded