Mr Irvine D B Nake

Profession: Chiropodist / podiatrist

Registration Number: CH19723

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 19/04/2018 End: 16:00 20/04/2018

Location: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Caution

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

(as amended)

1. On 24 June 2016 at Oxfordshire Magistrates’ Court you were convicted of the assault of Person A contrary to section 39 of the Criminal Justice Act 1988.

2. On 7 March 2016, upon your arrest, you were found to be in possession of confidential patient identifiable information by Thames Valley Police without the knowledge and/or permission of your employer.

3. By reason of your conviction at paragraph 1 your fitness to practise is impaired.

4. The matter set out in paragraph 2 amounts to misconduct.

5. By reason of your misconduct, your fitness to practise is impaired.

Finding

Preliminary Matters

Application to amend particulars

1. The Presenting Officer applied to amend Particulars 1, 3 and 5 on the basis that the proposed amendments would correct what were effectively typographical and grammatical or stylistic errors and would not in any way alter the case against the Registrant.

2. The Registrant’s representative, Ms Maudsley, did not oppose the amendments.

3. The Panel heard and accepted the advice of the Legal Assessor.

4. The Panel accepted that the amendments would correct apparent grammatical or stylistic and typographical errors and would not in any way alter the case against the Registrant. The Panel concluded that there would be no injustice to the Registrant if it allowed the application.

5. The Panel agreed to the amendments.

Background

6. The Registrant is a Chiropodist / Podiatrist who, at the relevant time, was undertaking his training in Podiatric Surgery. During his training, he undertook a three-month shadowing role with IR, a Consultant Podiatric Surgeon. As part of the training, students are required to keep an anonymised log of the operations they have observed. Three months after this honorary contract ended, the Registrant was arrested and charged with Assault Contrary to Section 39 of the Criminal Justice Act 1988. When he was arrested, theatre lists with confidential patient information were found on his person. IR confirmed to the police that the Registrant had not been authorised to remove this information from the premises.

7. On 24 June 2016, the Registrant pleaded guilty to the charge of Assault at Oxfordshire Magistrates’ Court and was fined £55.00, ordered to pay £151.30 in compensation, £20.00 victim surcharge and £620.00 towards prosecution costs.

8. By letter to the HCPC dated 10 June 2017, the Registrant admitted the facts alleged in Particulars 1 and 2.

Decision on Facts

9. At the outset of the hearing the Registrant formally admitted Particular 1, as amended, and Particular 2.

10. The Panel heard evidence from IR, the Consultant that the Registrant had been shadowing when he came into possession of the documents referred to in Particular 2. The Panel found IR to be a credible, consistent and fair witness.

11. IR told the Panel that he did not believe that the Registrant had stolen the documents. Rather, he said he believed the Registrant’s removal of the documents had been an error of judgment. He said he would never have given the Registrant permission to remove un-anonymised patient information and the Registrant should not have done so. He accepted that the Registrant may have misunderstood what was and what was not permitted in relation to the removal of information. IR told the Panel that he had not explained to the Registrant what was good practice in regard to such information.

12. The Panel heard evidence from the Registrant. It found parts of his evidence to be implausible and lacking in clear detail. However, the Panel considered that his regret and apologies were sincere.

13. During the hearing, Ms Maudsley applied for those parts of the hearing where reference would be made to the Registrant’s health to be held in private session. The Presenting Officer made no objection. The Panel heard and accepted the advice of the Legal Assessor. It was satisfied that for the protection of the Registrant’s privacy those parts of the hearing which dealt with the Registrant’s health should be heard in private session. In accordance with Rule 10(1)(a) of the Conduct and Competence Committee Procedure Rules 2003, the Panel decided to hold such parts of the hearing in private.

Particular 1 – Proved

14. In respect of Particular 1, the Panel had regard to the Memorandum of Conviction. It was aware that it could not go behind the conviction and was required by Rule 10(1)(d) of the Conduct and Competence Committee Procedure Rules 2003 to accept the Memorandum of Conviction as conclusive proof of the conviction itself and the underlying facts.

15. The Panel found Particular 1 proved by way of admission and by reason of the Memorandum of Conviction.

Particular 2 – Proved

16. The Panel found Particular 2 proved by way of admission.

17. The Registrant told the Panel that he accepted the police account of the events which led to his conviction and that he had been drunk and aggressive at the time. He said he would not drink alcohol at all in the future. He expressed his apologies and remorse for his behaviour at and around the time of the assault. This included a direct apology to Person A and others who had been present. He said the Panel could be assured that he would not repeat such behaviour. He said he had sought support to make him capable and competent in dealing with his anger and in avoiding putting himself in a situation where his exuberance might lead to conflict. He accepted that his conduct with regard to the assault would undermine public confidence in the profession and he expressed remorse for this, but said the steps he had taken, and was continuing to take, would guard against any repetition.

18. With regard to the matters set out in Particular 2, the Registrant said he accepted the evidence of IR that he would never have been given permission to remove confidential documents. He said it was an honest error of judgment on his part which would not be repeated. He said he had not realised that the list was still in his bag until the police brought it to his attention. He said he was shocked when he was shown the material. He said had he realised it was there he would have shredded it. He said that now when he leaves work he checks himself to ensure that he has no confidential information on him and that any such material is shredded before he leaves. He said that he now advises others to do the same. He told the Panel he had undertaken clinical governance training and intends to repeat that training.

Decision on Grounds

19. The Panel had careful regard to the submissions of the Presenting Officer that the matters found proved in relation to Particular 1 constituted conviction going to impairment and the matters found proved in relation to Particular 2 constituted misconduct going to impairment.

20. The Presenting Officer referred the Panel to the Privy Council case of Roylance v GMC (No2) [2000] 1 AC 311, in which Lord Clyde stated:

“misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a … practitioner in the particular circumstances.”

21. The Panel also had careful regard to the submissions of Ms Maudsley in respect of Particular 2, that this was an honest mistake which IR had acknowledged had also been made by others elsewhere.

22. The Panel accepted the advice of the Legal Assessor. In relation to misconduct, the Panel bore in mind that not every breach of the Standards and not every falling short of what would be proper in the circumstances will constitute misconduct; the breach must be serious, or as Elias LJ put it in R (on the Application of Remedy UK Ltd) v GMC [2010] EWHC 1245 (Admin), “sufficiently serious.... that it can properly be described as misconduct going to fitness to practise.”

23. In relation to Particulars 1 and 2, the Panel found that the Registrant was in clear breach of Standard 9.1 of the HCPC Standards of Conduct, Performance and Ethics (2016 edition):

9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

24. In relation to Particular 2 only, the Panel found that the Registrant was in breach of Standard 5.1 of the HCPC Standards of Conduct, Performance and Ethics (2016 edition):

5.1 You must treat information about service users as confidential

25. In the Panel’s view, the Registrant’s conviction for an act of violence was by its nature so serious as to call into question his fitness to practise.

26. In the Panel’s view, the Registrant’s conduct in relation to Particular 2 fell short of what would have been proper in the circumstances. His actions would undermine public confidence in the security and confidentiality of patient information held by the Trust and in the trustworthiness of the profession. The public rightly expects that information pertaining to patients will be kept secure and confidential. In removing confidential patient information and in undermining public trust and confidence, the Registrant’s actions were so serious as to call into question his fitness to practise.

27. For the reasons set out above, the Panel had no doubt that the matters found proved in relation to Particular 1 constituted a conviction going to fitness to practise and that the matters found proved in relation to Particular 2 demonstrated a falling short so serious as to constitute misconduct going to fitness to practise.

Decision on Impairment

28. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of his conviction and / or his misconduct. It had careful regard to all the evidence before it and to the submissions of the Presenting Officer and Ms Maudsley.

29. The Panel accepted the advice of the Legal Assessor and had careful regard to the HCPTS Practice Note on “Finding that Fitness to Practise is ‘Impaired’”.

30. The Panel considered that by reason of his conviction, the Registrant had breached a fundamental tenet of the profession and brought the profession into disrepute.

31. The Panel considered that the Registrant’s misconduct had put at unwarranted risk of harm those whose confidential patient data he had removed from the hospital, and that he had breached a fundamental tenet of the profession, in that he failed to safeguard confidential patient information, and brought the profession into disrepute.

32. In addressing the personal component of impairment, the Panel asked itself whether the Registrant is liable, now and in the future, to repeat misconduct of the kind found proved and / or conduct of the kind which led to his conviction. In reaching its decisions on each, the Panel had particular regard to the issues of insight, remediation and the Registrant's history.

33. The Panel noted that in the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin) Mrs Justice Cox stated: “When considering whether or not fitness to practise is currently impaired, the level of insight shown by the practitioner is central to a proper determination of that issue.”

34. The Panel had careful regard to Silber J’s guidance in Cohen v GMC [2008] EWHC 581 (Admin) that Panels should take account of:

• Whether the conduct which led to the charge is easily remediable;

• Whether it has been remedied; and

• Whether it is highly unlikely to be repeated.

35. In his letter dated 10 June 2017 to the HCPC, the Registrant admitted his conviction and that on his arrest he had been found to be in possession of confidential information without the knowledge and/or permission of his employer. In this letter he stated:

“I have had almost a year to reflect … and I regret everything that happened … I consider my patients in high esteem and feel that they are the real victims of my actions and do acknowledge that I have indeed brought disrepute to the profession and to the body that governs that profession and I sincerely regret every eventuality … and without any excuse accept and acknowledge that I could have handled the altercation between me and Person A in a more professional way! … I would like to apologise without reservation for the assault on Person A … I would also like to apologise for bringing the profession and the governing professional body into disrepute … I would also like to apologise unconditionally for keeping my patients’ files … that was an error of commission and omission on my part in not following the requisite procedures for doing that. I do realise that … the error lies in my not observing the clinical governance requirements of my professional processes and code of conduct.”

36. The Panel considered that the Registrant’s admissions and acceptance are indicative of his insight into the matter. Further, the steps he has taken provided important evidence of his efforts to remediate his failings in regard to Particular 1.

37. In relation to the removal of confidential patient information, the Panel concluded that the Registrant has reflected appropriately on his misconduct and has demonstrated insight both by his admissions and by his clearly stated acceptance of the unacceptability of his conduct. The Panel was satisfied that the Registrant has taken appropriate steps to ensure that he would not deliberately or inadvertently remove documents containing confidential patient identifiable information in the future.

38. The Panel had careful regard to the Registrant’s history. It noted that there has been no suggestion that he is not a competent practitioner. It had careful regard to the references and testimonials from colleagues, friends and family put before it on the Registrant’s behalf. It noted his evidence that all those who wrote these had been aware of the matters which have brought him before his Regulator.

39. The Registrant told the Panel that he had learned from this experience and would never repeat matters of the kind found proved. In considering the risk of repetition, the Panel had careful regard to its conclusions in relation to his insight, remediation, and history. The Panel had no doubt that the Registrant’s arrest and subsequent participation in the regulatory process has been a salutary experience which he is determined not to repeat. For all the reasons set out above, the Panel concluded that the Registrant is not liable to repeat conduct of the kind which has brought him before his Regulator. The Panel concluded that the Registrant’s fitness to practise is not impaired on the grounds of public protection.

40. The Panel then went on to consider whether a finding of impairment is necessary on public interest grounds. In addressing this component of impairment, the Panel had careful regard to the critically important public issues identified by Silber J in the case of Cohen when he said:

“Any approach to the issue of whether .... fitness to practise should be regarded as ‘impaired’ must take account of ‘the need to protect the individual patient, and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour.”

41. The Panel asked itself whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment of fitness to practise was not made in the circumstances of this case. The Panel had no doubt that it would. Making sure that your conduct justifies the public’s trust and confidence in you and your profession is a fundamental requirement of the profession of Chiropodists / Podiatrists, as is safeguarding the confidentiality of patient information. Informed members of the public would be shocked to learn that the Registrant had been convicted of assault while in a state of inebriation and had been found to be in possession of confidential patient identifiable information at the time of his arrest. This was a serious data breach involving a number of patients over an extended time period. It was made more serious by the fact that the Registrant had not even been aware that he was carrying patient identifiable information, including contact details and medical history, on his person over an extended period of time. For these reasons, a finding of impairment on public interest grounds is required.

42. For all the reasons set out above the Panel concluded that, on public interest grounds, the Registrant’s fitness to practise is impaired by reason of his misconduct and conviction. The Allegation is well founded.

Decision on Sanction

43. The Panel next considered what, if any, sanction to impose on the Registrant’s registration.

44. The Panel had careful regard to all the evidence put before it, and also to the submissions of the Presenting Officer and of Ms Maudsley.

45. The Presenting Officer drew the Panel’s attention to the HCPC’s Indicative Sanctions Policy and submitted that the question of sanction is a matter for the Panel’s own independent judgment.

46. Ms Maudsley submitted that a Caution Order would be a fair and proportionate response to the Panel’s findings on impairment.

47. The Panel accepted the advice of the Legal Assessor.

48. In reaching its decision, the Panel recognised that its finding of impairment had been made on public interest grounds only. It had at the forefront of its thinking the principle of proportionality and the need to balance the interests of the Registrant with the wider public interest in maintaining confidence in the profession and the regulatory process, and in declaring and upholding proper standards of conduct and performance.

49. The Panel had in mind that the purpose of sanctions is not to be punitive, though they may have a punitive effect. The Panel considered all the options open to it, starting with the least restrictive and working up the scale of restrictiveness.

50. In reaching its decision, the Panel had regard to all the circumstances, and its own findings as set out in its decision on Grounds and Impairment, as well as the following mitigating and aggravating features of the case:

Mitigating

• No patients were harmed as a result of the Registrant’s failings;

• The Registrant has fully engaged with the regulatory process, made early admissions to the matters subsequently found proved, expressed remorse for his failings and demonstrated insight and remediation;

• The Registrant has worked as a Podiatrist since August 2016 and there has been no further allegation of matters of the kind found proved;

• The Registrant produced positive testimonials, including from his manager, a colleague, and a patient.

Aggravating

• By his conviction and misconduct the Registrant breached the fundamental requirement of Chiropodists / Podiatrists that they must make sure that their conduct justifies the public’s trust and confidence in them and their profession;

• The Registrant’s conviction was for an act of violence committed while under the influence of alcohol;

• By his misconduct the Registrant breached the fundamental requirement of Chiropodists / Podiatrists that they must respect confidentiality, and he has brought the profession into disrepute;

• The misconduct put patients at unwarranted risk of harm through the potential disclosure of their personal data;

• The seriousness of the misconduct was compounded by its duration.

51. The Panel first considered whether it would be appropriate to impose no sanction in this case. In that regard it gave careful consideration to Paragraph 8 of the Indicative Sanctions Policy. The Panel recognised that taking no action after a finding of impairment is likely to be an exceptional outcome. Although the Panel found impairment on public interest grounds alone and concluded that the Registrant had demonstrated insight and remediation, it was of the view that the seriousness of his failings was such that taking no action would not serve the public interest in maintaining confidence in the profession and the regulatory process and in declaring and upholding proper standards.

52. The Panel then considered whether it would be appropriate to refer the matter for mediation. It had careful regard to Paragraphs 26 and 27 of the Indicative Sanctions Policy. It noted that mediation may only be used if the Panel is satisfied that the only other appropriate course would be to take no further action. This is not such a case.

53. The Panel next considered the imposition of a Caution Order. It had careful regard to the factors set out in Paragraphs 28 and 29 of the Indicative Sanctions Policy and noted its findings that there is a low risk of recurrence and that the Registrant has shown insight and taken appropriate remedial action. It considered that a 4-year Caution Order would be sufficient to mark the seriousness of the Registrant’s conviction and misconduct and would send a clear message to the Registrant, other practitioners and the public that the behaviour which brought the Registrant before his Regulator is unacceptable and must not be repeated.

54. The Panel did consider the imposition of a Conditions of Practice Order and had careful regard to Paragraphs 30-38 of the Indicative Sanctions Policy. However, the Panel considered that such an order would not be appropriate where there has been a finding of impairment in the public interest alone. The Panel did also consider the imposition of a Suspension Order and had careful regard to Paragraphs 39-45 of the Indicative Sanctions Policy. It considered that, in light of its views on the suitability of a Caution Order, a Suspension Order would be disproportionate, unnecessary and inappropriate.

Order

That the Registrar is directed to annotate the register entry of Mr Irvine D B Nake with a Caution which is to remain on the register for a period of 4 years from the date this order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Mr Irvine D B Nake

Date Panel Hearing type Outcomes / Status
19/04/2018 Conduct and Competence Committee Final Hearing Caution