Dylan W Williams

Profession: Chiropodist / podiatrist

Registration Number: CH10769

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 09/01/2017 End: 17:00 12/01/2017

Location: Park Plaza Cardiff, Greyfriars Road, Cardiff, CF10 3AL

Panel: Conduct and Competence Committee
Outcome: Suspended

Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.

 

Allegation

Allegation as amended at final hearing:

While employed as a Chiropodist/Podiatrist for Wales University Health Board, you failed to maintain adequate records, in that:

1. In February 2014 a clinical audit was carried out to cover appointments at Neath Port Talbot Hospital and it was found that:

(a) On 4 February 2014 – no notes were completed out of 6 patient appointments

(b) 0n 5 February 2014 – no notes were completed out of 11 patient appointments

(c) 0n 6 February 2014 – no notes were completed out of 4 patient appointments

(d) 0n 11 February 2014 – only four sets of notes were completed and 3 notes missing

(e) 0n 12 February 2014 – no notes were completed out of 14 patient appointments

(f) 0n 13 February 2014 – no notes were completed out of 5 patient appointments

(g) 0n 17 February 2014 – no notes were completed out of 9 patient appointments

(h) 0n 18 February 2014 – no notes were completed out of 4 patient appointments

(i) 0n 19 February 2014 – only two sets of notes were completed and 9 notes missing

(j) 0n 20 February 2014 – no notes were completed out of 4 patient appointments

(k) 0n 25 February 2014 – no notes were completed out of 14 patient appointments

(l) 0n 26 February 2014 – only 11 notes present and 6 notes missing (m) 0n 27 February 2014 – no notes were completed out of 5 patient appointments

2. On a date prior to 2 June 2014, you removed approximately 737 patient identifiable paper records from Neath Port Talbot Hospital and stored them outside of NHS Wales premises.

3. Between February 2014 and April 2014 you did not complete case notes and/or completed case notes retrospectively, and

a. You altered the date stamp on records that you completed retrospectively by unplugging the network cable and amending the date on the documents.

4. Your actions as described at paragraph 3a are dishonest.

5. The matters as described in paragraphs 3a-4 constitute misconduct.

6. The matters as described at paragraphs 1 -2 amount to misconduct and/or a lack of competence.

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

Finding

Preliminary matters:

Service of Notice

1. The notice of today’s hearing was sent to the Registrant at his address as it appeared on the register on 22 September 2016. The notice contained the date, time and venue of today’s hearing.

2. The Panel accepted the advice of the Legal Assessor and is satisfied that notice of today’s hearing has been served in accordance with the rules.

Proceeding in the absence of the Registrant

3. The Panel then went on to consider whether to proceed in the absence of the Registrant pursuant to Rule 11 of the HCPC Conduct and Competence Committee rules. In doing so, it considered the submissions of Ms Chaker on behalf of the HCPC.

4. Ms Chaker submitted that the HCPC has taken all reasonable steps to serve the notice upon the Registrant. She further submitted that the Registrant has engaged with the process and is aware of today’s proceedings. Ms Chaker drew the Panel’s attention to a letter from Messrs Thompsons Solicitors dated 15 December 2016. Messrs Thompsons were the representatives of the Registrant, and they state in that letter that the Registrant has instructed them that he will not be attending this hearing and does not oppose the matter proceeding in his absence. Ms Chaker submitted that the Registrant’s absence from the hearing was voluntary and that he had waived his right to attend and/or to be represented. An adjournment would serve no useful purpose and there was a public interest in this matter being dealt with expeditiously.

5. The Panel accepted the advice of the Legal Assessor. He advised that if the Panel is satisfied that all reasonable efforts have been made to notify the Registrant of the hearing then the Panel had the discretion to proceed in the absence of the Registrant. He cautioned the Panel that the discretion was to be exercised with care and caution as set out in the case of R v Jones [2002] UKHL 5.

6. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPC practice note entitled ‘Proceeding in the Absence of a Registrant’. The Panel weighed its responsibilities for public protection and the expeditious disposal of the case with the Registrant’s right to a fair hearing.

7. In reaching its decision the Panel took into account the following:

• The Registrant has not made an application to adjourn today’s hearing and implicit in the letter dated 15 December 2016 is an expectation that proceedings today will proceed in his absence;

• Witnesses have attended to give evidence;

• There is a public interest in dealing with this matter without further delay.

The Panel was satisfied that the Registrant had voluntarily absented himself from the hearing and had waived his right to be represented. It determined that it was unlikely that an adjournment would result in the Registrant’s attendance at a later date. Having weighed the public interest in the expeditious disposal of this case with the Registrant’s own interest, the Panel decided to proceed in the Registrant’s absence.


Amendment of Allegation

8. Ms Chaker, on behalf of the HCPC, applied to amend the Allegation to change the numbering in paragraph 6 to avoid duplication. The Registrant had been informed about the proposed amendment and had not made any objection.

9. The Panel accepted the advice of the Legal Assessor, who had advised that it was open to the Panel to amend the allegation, provided no injustice would be caused by the amendment. The Panel considered that the amendment sought was extremely minor and did not change the substance of the allegation. The amendment served to clarify the Allegation and would not cause injustice. The Panel therefore allowed the amendment to be made. The amended Allegation is as set out above.

Proceeding in private

10. Ms Chaker submitted that it was appropriate that parts of the hearing be held in private as the Registrant’s health was to feature significantly in the evidence of this case. The Panel accepted the Legal Assessor’s advice and it noted Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) Procedure Rules 2003 (“Procedural Rules”). The Panel agreed parts of the hearing, where the Registrant’s health issues were discussed in detail by the evidence, would be held in private.

Background:

11. The Registrant worked as a Band 7 podiatrist at the Neath Port Talbot Hospital, Abertawe Bro Morgannwg University (ABMU) Health Board

12. It is alleged that a number of case notes were not completed for patients treated by the Registrant at Neath Port Talbot Hospital from February 2014 onwards.

13. Additionally, the Registrant is alleged to have removed 737 patient identifiable paper records from Neath Port Talbot Hospital and stored them outside of NHS Wales’ premises.

Decision and reasons on facts:

14. The Panel considered all the evidence in this case together with the submissions made by Ms Chaker on behalf of the HCPC.

15. The Panel accepted the advice of the Legal Assessor who reminded the Panel that the burden of proof rests with the HCPC, and that the Registrant need not disprove anything. The Legal Assessor also reminded the Panel that the standard of proof is the civil standard, namely the balance of probabilities. This means if the Panel was satisfied that it was more likely than not that a factual particular occurred as alleged or is true, then it must find that Particular proved.

16. The Panel heard oral evidence from the following witnesses on behalf of the HCPC:

• Colleague 1 – Head of Podiatry and Orthotic Services and Head of Musculoskeletal Clinical Assessment Services and Chronic Pain Service at ABMU Health Board. She managed the Registrant’s line manager.

• Colleague 3 – Orthotic Services Manager ABMU Health Board. He assisted with the Registrant’s return to work in 2013.

• Colleague 5 – Deputy Head of Physiotherapy at ABMU Health Board. She was appointed to investigate this matter.

• Colleague 7 – Band 6 Specialist Community Podiatrist at ABMU Health Board who, from 2012, covered clinics for the Registrant when he was on leave.

17. The Panel found all of the above witnesses to be honest and credible. They were balanced in their evidence, and were thoughtful and considered when giving information relating to their knowledge and understanding of the Registrant’s heath condition. Those who had worked with the Registrant clearly held his clinical skills and knowledge in high regard.

18. The Panel also received a bundle of documentary evidence from the HCPC, as well as the Registrant’s response to the charges, that he had earlier sent to the Investigating Committee for its consideration.

19. The Panel considered each of the particulars and made the following findings:

Particulars 1(a) to 1(m)

20. The Panel heard evidence from Colleague 3 who carried out the clinical audit of the Registrant’s work. The Panel heard that the audit was carried out as part of an agreed process put in place to assist the Registrant following previous concerns about his record keeping.

21. Colleague 3 told the Panel that he identified the shortcomings that are the subject of Particulars 1(a) to 1(m).

22. The Panel also noted the admissions made by the Registrant to these matters during ABMU Health Board’s investigation, and also to the Investigating Committee of the HCPC.

23. The Panel finds these Particulars proved, and also accepts that the Registrant had made early admissions to them.

Particular 2

24. The Panel noted the admissions made by the Registrant to this matter during ABMU Health Board’s investigation, and also to the Investigating Committee of the HCPC.

25. The Panel finds this matter proved, and also accepts that the Registrant has made early admissions to it. In fact, the evidence demonstrates that this matter only came to light because the Registrant disclosed it ABMU Health Board during an interview.

Particular 3

26. The Panel noted the admissions made by the Registrant to this matter during ABMU Health Board’s investigation, and also to the Investigating Committee of the HCPC.

27. Similar to Particular 2 above, this matter only came to light because the Registrant informed ABMU Health Board of what he had done. He made full admissions and has maintained that position throughout these proceedings. Accordingly the Panel finds this matter proved, and accepts that the Registrant made an early admission to this Particular.

Particular 4

28. The Panel was satisfied that the ordinary and honest person would consider the actions of the Registrant in the circumstances to be dishonest. The Registrant stated to ABMU Health Board that the purpose of changing the date stamp of the electronic files was to conceal the true date upon which the files had been created. The date when the electronic files were created was relevant to the periodic audit carried out Colleague 3 to ascertain if the Registrant was able to manage his record keeping in a timely manner.

29. There is no allegation or evidence that the information contained within each electronic file was incorrect or false.

30. In his Response to the Charges for the Investigating Committee, the Registrant submits that because of his health condition, he did not believe that he acted dishonestly at the time. However, at the time when he brought these matters to the attention of ABMU Health Board he admitted that he did intentionally change the date stamp on the electronic files so as to hide the fact from Colleague 3 that he had not completed his case notes in a timely manner. He told ABMU Health Board that he had unplugged the network cable of the computer he was using to enable him to change the date stamp.

31. The Panel did not accept that the Registrant’s health condition led to or affected the Registrant’s ability to understand right from wrong. The actions of the Registrant required more than a momentary lapse of judgment. It required the deliberate acquisition of the knowledge of how it would be possible to change the date stamp of files created on a networked computer, the taking of deliberate steps to enable such changes to be made, and then to actually change the date stamp of the files. This makes it more probable than not, that the Registrant understood what he was doing, and that what he was doing would be considered dishonest by standards of the ordinary and honest person. 

32. Accordingly the Panel finds Particular 4 proved.

Decision on Grounds:

33. The Panel also heard submissions from Ms Chaker on behalf of the HCPC with regard to whether the matters found proved amounted to Misconduct and/or Lack of Competence.

34. Ms Chaker submitted that the Registrant had breached the following paragraphs of the HCPC’s Standards of conduct, performance and ethics: 1, 3, 7, 10 and 13. She further submitted that the Registrant had also breached the following paragraphs of the HCPC’s Standards of Proficiency for Chiropodists/ Podiatrists: 1, 7 and 10.

35. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the decisions in the following cases:

a) Andrew Francis Holton v General Medical Council [2006] EWHC 2960

b) Calhaem v GMC [2007] EWHC 2606 (Admin)

c) Roylance v GMC (2000) 1 AC 311.

36. The Panel exercised its own judgement in determining the issue before it.

37. The Panel considered that on the facts found proved the Registrant had breached the following paragraphs of the HCPC’s Standards of conduct, performance and ethics:

1.  You must act in the best interests of service users.

2. You must keep to the conditions of any relevant data- protection laws and always follow best practice for handling confidential information.

7. You must communicate properly and effectively with service users and other practitioners.

10. You must keep accurate records.

13. You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.

38. The Panel also determined that the Registrant had breached the following paragraphs of the HCPC’s Standards of proficiency for Chiropodists / Podiatrists:

Registrant chiropodists / podiatrists must:

2.1 understand the need to act in the best interests of service users at all times

7.2  understand the principles of information governance and be aware of the safe and effective use of health and social care information

8.1 be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service user, colleagues, and others

10.1 be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols, and guidelines

10.2 recognise the need to manage records and all other information in accordance with applicable legislation, protocols and guidelines.

39. The Panel regarded the above as serious failings but had considered them in the overall context of the case and the Registrant’s career. The Panel reminded itself that misconduct is “a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances”. The Panel was also aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards would be sufficiently serious such as to amount to misconduct in this context.

40. Therefore, the Panel has had careful regard to the context and circumstances of the matters found proved.

41. The Panel determined that Particular 1 amounted to misconduct because these were serious professional failings. The Registrant was an able, competent and experienced practitioner who was capable of keeping good and accurate records. Colleague 3 told the Panel that in the previous quarter year, the Registrant’s electronic record-keeping of appointments was up to standard and appeared to be completed on time. Colleague 7 told the Panel that when she covered the Registrant’s clinics at the Podiatry and Orthotics Service (POS) at ABMU Health Board during the relevant period, she became increasingly aware that there was incomplete, and/or missing records of appointment. She also told the Panel that when, in the same period, she covered the Registrant’s tissue viability clinics at the hospital, she found that the Registrant’s notes were complete and up to date.
42. There was no evidence of any change in circumstances of the Registrant during the relevant period and therefore, the only inference was that the Registrant did not prioritise his record keeping at POS.

43. The Panel was also told of the impact that the missing records had on others. Colleague 7 told the Panel that she had to start from ‘scratch’ where the notes were missing and take a full history from the patient and confirm details of medications with their GP, as opposed to confirming with each patient that  what was in their notes remained accurate. She told the Panel that this increased the time required for each appointment. It also inconvenienced other medical professionals when she had to re-confirm with them information that they had already given to the Registrant.

44. In the light of the above, Particular 1 is so serious as to amount to misconduct in these proceedings.

45. In relation to Particular 2, the Panel considered the removal of 737 confidential records is so serious as to amount to misconduct. This is notwithstanding that this matter only came to light because the Registrant was candid and honest, and that it was not against policy to remove files where clinically necessary.  However, the evidence from the witnesses is that there was no good reason for 737 confidential records to be taken from NHS Wales premises. They would have related to a significant number of patient, and would have meant that there were missing records from a large number of patient files.

46. The Panel also considered Particular 3a to be so serious as to amount to misconduct for the purposes of these proceedings. Again, notwithstanding this matter only came to light because the Registrant was candid, the system of audit was put in place to ensure that the Registrant was meeting the standards expected of him, and that patients would not be put at risk of harm. The alteration of the date stamp was designed to mislead this audit of the Registrant’s work.

47. Having found the Registrant’s actions in relation to Particular 3a above to be dishonest, the Panel also determined that the Registrant’s dishonesty amounted to misconduct for the purposes of these proceedings. His dishonesty directly related to the concealment of his ability to work to the standards expected of him, and gave a false impression of his ability to cope with his workload. It directly impacted on his practice and the Panel considered it to be serious.

48. In summary, the Panel considered that each of the facts found proved were serious enough so as to amount to Misconduct for the purposes of these proceedings.

49. Accordingly the Panel finds that the facts found proved amounted to the statutory ground of Misconduct.

Decision on Impairment 

50. The Panel then went on to consider, on the basis of the matters found proved, whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct. It accepted the advice of the Legal Assessor.

51. For this purpose, the Panel adopted the approach formulated by Dame Janet Smith in her fifth report from the Shipman inquiry by asking itself the following questions:

“Do our findings of fact in respect of the Registrant’s misconduct show that his fitness to practise is impaired in the sense that he:

a) has in the past acted and/or is liable in the future to act so as to put service users at unwarranted risk of harm; and/or

b) has in the past brought and/or is liable in the future to bring the profession into disrepute; and/or

c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the  profession; and/or

d) has in the past acted and/or is liable in the future to act dishonestly”.

52. The Panel had to make a judgement on the issues raised by those questions in the absence of any up to date information from the Registrant about the level of his insight into these matters, his current circumstances, any training he may have undertaken, his employment or any other relevant matters. The Panel determined that the answers to all the above questions were in the affirmative in relation to past, and future possible conduct.

53. Accordingly the Panel determined that the Registrant’s fitness to practise is currently impaired.

54. The Panel also determined that the Registrant’s misconduct was such that the need to uphold professional standards and public confidence in the professions would be undermined if a finding of impairment were not made in these circumstances.

55. Therefore, Panel determined that the Registrant’s fitness to practise is currently impaired on both personal and public interest considerations.

Decision on Sanction:

56. The Panel heard the submission of Ms Chaker with regard to sanction.

57. The Panel accepted the advice of the Legal Assessor in relation to sanction.  The Panel had regard to all the evidence presented, and to the HCPC’s Indicative Sanctions Policy. The Panel reminded itself that a sanction is not designed to be punitive although it may have a punitive effect, and bore in mind the principles of fairness and proportionality when determining what the appropriate sanction in this case should be.

58. In addition to the factors considered by the Panel when considering statutory grounds and impairment, it also took into account the following factors when determining what the appropriate sanction should be:

a) There were underlying and serious health issues faced by the Registrant, which the evidence before the Panel demonstrated had a significant impact upon his ability to work within normal record keeping methods and practice. However, adjustments had been put in place in order to assist the Registrant to make contemporaneous notes, or retrospective notes within 24 hours of an appointment taking place, including dictation software and extra time within each appointment.


b) There is no evidence that the Registrant’s misconduct, and dishonesty, resulted, directly or indirectly, in patient harm. However, because of the nature of the patients that the Registrant treated, there was the potential that his actions could have resulted in a patient being at risk of serious harm, because up to date patient records were not available to other treating clinicians.

c) The Registrant’s dishonesty was directly related to his role as a chiropodist. It occurred in the context of an audit system specifically put in place because of his underlying heath condition, and designed to assist the Registrant and his managers.

d) Whilst the Registrant has not attended, he has demonstrated some insight into his dishonesty. This is evidenced by:

i) the fact that these matters would not have come to light had he not brought them to the attention of his employer, of his own volition;

ii) he made early and immediate admissions that the purpose of his actions in altering the date stamp of the files was to give the impression that he was meeting timescales.

e) However, in his response to the Investigating Committee the Registrant stated “…. my actions were not a deliberate attempt to lie to my employer. I therefore do not believe that I behaved dishonestly.”

f) With regard to the 737 records removed from the Hospital premises:

i) The Registrant’s has also demonstrated significant, albeit not full, insight as is also evidenced by the fact that these matters would not have come to light had he not brought them to the attention of his employer, of his own volition;

ii) The witnesses and the Panel accepted that he had taken the records home in an attempt to ensure they were up to date and correct before filing them.

g) The Registrant is of otherwise good character.

h) The dishonesty related to a short period of time in an otherwise unblemished career.

i) The evidence is that the Registrant is in all other respects a very good clinician, whose skills were held in high regard by colleagues and patients.

59. In considering the matter of sanction, the Panel started with the least restrictive moving upwards.

60. The Panel first considered taking No Action but concluded that, given the seriousness of the Registrant’s misconduct, this would be wholly inappropriate.

61. The Panel then considered whether to make a Caution Order. The Panel was mindful of its finding that the Registrant was likely to repeat his misconduct, in the absence of any current information from the Registrant. These matters are too serious for a Caution Order to be considered appropriate.

62. The Panel next considered the imposition of a Conditions of Practice Order. The Panel has found that the Registrant has not demonstrated full insight into his misconduct. This was not a case where the Registrant’s clinical skills are in question. There are no identifiable areas of his practice, which might benefit from re-training. The evidence was that the Registrant was capable of making accurate notes in a timely manner. These are matters involving attitudinal issues and dishonesty, which cannot be addressed by the imposition of conditions of practice.

63. Taking into account all of the above, the Panel concluded that conditions could not be formulated which would adequately address the risk posed by the Registrant, and in doing so protect patients, colleagues and the public during the period they are in force.

64. The Panel went on to consider whether a period of suspension would be appropriate in this case. In the light of the above considerations and the circumstances of this case, the Panel determined that a Suspension Order would suffice to protect the public and the public interest. It would provide the Registrant with an opportunity to re-engage with the process and to demonstrate insight into his misconduct, whilst protecting the public and the public interest. The Panel determined that the appropriate and proportionate period of suspension is twelve months.

65. The Panel did go on to consider whether a Striking off Order would be appropriate. There was a very real possibility of a Striking-off Order in this case. However, taking into account the mitigating factors in this case the Panel determined that it would not be a just nor proportionate sanction at this point in time, in the unique circumstances of this case. The Registrant is a highly regarded clinician in a specialised and critical field of diabetic podiatry practice. The Panel determined that there is a possibility that the Registrant could re-engage with the process and demonstrate insight and remediation of his misconduct and therefore the sanction of last resort is not yet appropriate.

66. This Order will be reviewed before it expires and a future Panel reviewing this Order would be assisted by the following, if possible:

a) The attendance of the Registrant;

b) A reflective piece by the Registrant, concentrating on what led to his misconduct, how his actions impacted, or could have impacted, on service users, and how he has changed his practice and remediated his misconduct;

c) Information about any employment since the Registrant left ABMU Health Board;

d) An indication as to his future plans and whether his wishes to remain in the profession;

e) Evidence of the Registrant keeping his practice up to date and remediating his misconduct by undertaking relevant courses, or being employed in allied and relevant roles. He may find it helpful to approach a professional body or academic institution;

f) Up to date character and /or employment references from persons who are aware of these proceedings.

67. The Panel makes a Suspension Order for the period of twelve months.

Order

Order: The Registrar is directed to suspend the name of Mr Dylan W Williams from the Chiropodist / Podiatrist part of the Register for a period of twelve months.

Notes

The order imposed today will apply from the expiry of the appeal period of 28 days.


This order will be reviewed by the Committee no later than 08 November  2017 or earlier if new evidence which is relevant to the order becomes available after it was made.
 

Hearing History

History of Hearings for Dylan W Williams

Date Panel Hearing type Outcomes / Status
07/03/2017 Conduct and Competence Committee Final Hearing Voluntary Removal agreed
09/01/2017 Conduct and Competence Committee Final Hearing Suspended
21/01/2016 Conduct and Competence Committee Review Hearing Conditions of Practice