Mr Andrew A Binning

Profession: Physiotherapist

Registration Number: PH42506

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 11/12/2018 End: 17:00 18/12/2018

Location: Novotel Glasgow Centre, 181 Pitt Street, Glasgow, G2 4DT, United Kingdom

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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

Whilst registered as a Physiotherapist and employed by Paisley Physiotherapy Centre, you:

1. On or around 17 March 2016:
a. caused, or allowed to be caused, two burns to Patient A's back.
b. You did not appropriately administer Ultra Reiz treatment in that:
i. you did not observe Patient A during the first 10 minutes of treatment;
ii. you did not respond appropriately to Patient A’s concerns about experiencing pain during treatment.
c. You did not provide and/or record providing adequate post-treatment advice to Patient A.
d. You incorrectly advised Patient A against seeking medical treatment for their burns.

2. The matters set out in paragraph 1 constitute misconduct and/or lack of competence.

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

Finding

Preliminary Matters

1. The Registrant was present and represented by Ms Karen Osborne of Thompsons, Solicitors. The case for the Health and Care Professions Council (HCPC) was presented by Mr Mark Millin of Kingsley Napley, Solicitors. The Registrant admitted the facts of particular 1a) of the Allegation and denied the remainder of the Allegation.

Background

2. The Registrant is the owner and senior physiotherapist of Paisley Physiotherapy Centre (“the clinic”). He qualified 28 years ago and spent 1 year working within the NHS and 7 years working as a physiotherapist in professional football, before he opened the clinic with his wife in 1998. The Registrant has been providing treatment to Patient A since she was a child, albeit not continuously.  Patient A attended the clinic in 2011 for an ongoing knee problem and returned in April 2015 complaining of left buttock and hamstring pain.

3. The Registrant referred Patient A to Ross Hall Hospital (“RHH”) for further investigations into her back pain. Patient A was seen by a Consultant at RHH. An MRI scan showed a central disc protrusion. The Consultant deemed surgery was inappropriate for this condition and Patient A was advised to continue with physiotherapy. In March 2016, she was referred back to the Registrant for further treatment.

4. On 17 March 2016 the Registrant provided electrotherapy treatment to Patient A using an Ultra Reiz (“UR”) machine to treat a bulging disc in Patient A’s back. Upon returning home after the treatment Patient A discovered that there were two “holes” in her back where one of the suction cups had been placed to deliver the current.

5. Patient A telephoned the Registrant about an hour after the conclusion of the treatment to inform him that she was on her way to hospital for treatment to her back. It is alleged that the Registrant informed Patient A that she did not need to go to the hospital. Patient A did attend A & E and received treatment there and later at her GP surgery. One of the burn sites subsequently became infected.

Decision on Facts

6. The Panel heard live evidence from two witnesses on behalf of the HCPC: Patient A and Hannah Chambers (HC), a physiotherapist and expert witness. The Panel also considered the written statement of Emma Andrews, a Legal Assistant of Kingsley Napley, Solicitors whose statement exhibited Patient A’s physiotherapy notes from the clinic. The Panel also heard live evidence from the Registrant and from two witnesses on his behalf: NM, the Practice Manager at the Registrant’s practice and SN, a practising physiotherapist at the Registrant’s practice. In addition, the Panel accepted the advice of the Legal Assessor.

7. The Panel found Patient A to be a credible, reliable and balanced witness whose oral evidence was consistent with her written statement and the information she provided in the HCPC referral. She acknowledged in her evidence that both the Registrant and the clinic had a very good reputation. While the Panel notes that Patient A erroneously believed that she had previously had UR treatment, this does not in any way detract from her credibility. The Panel has heard evidence that the UR treatment involved the use of the same machine previously used by Patient A when receiving other forms of electrotherapy modalities. However the UR treatment involved the use of a different setting. Patient A’s interaction with the machine would therefore have been the same as her previous experience and in the view of the Panel led her to believe that she had received this form of treatment previously.

8. The Panel found HC to be a credible and reliable witness who provided her evidence in a straightforward manner. It is clear to the Panel that she is an experienced physiotherapist with experience of both private practice and in the NHS. Although she was experienced in other forms of electrotherapy, she did not have experience in UR treatment as this is not widely used in the UK. However she had carried out appropriate research before providing her statement which included consulting with Professor Tim Watson, an expert in electrotherapy.

9. The Panel accepted Emma Andrew’s statement as hearsay evidence. Her witness statement exhibited the Patient Notes from the clinic. No issue was taken by the Registrant in respect of these notes and the Panel therefore accepted these as an accurate record.

10. The Panel found the Registrant’s evidence to be mainly credible. However, the Panel found him to be defensive in his evidence and at times disrespectful, stating words to the effect that, maybe she hadn’t liked the pain of childbirth and that was why she had only had one child. He also commented that Patient A’s reporting of the matter to the HCPC and the strength of her evidence was influenced by her medical negligence claim, a position which the Panel does not accept as relevant to the issues in this hearing.

11. The Panel compared the photograph of Patient A’s injury, taken by her husband immediately after she returned home following treatment, on the evening it occurred to the description given by the Registrant in Patient A’s notes which state “? skin sl broken at distal electrode ->advice given re skin care”.  The Panel also compared the photograph to the Registrant’s description of the injury “as a skin irritation” which was provided in his oral evidence. The Panel is of the view that Patient A’s burn must have been apparent to the Registrant at the time of taking off the suction cups and that a burn would have been visible, even to a non-clinician. The Panel noted Patient A’s evidence that the Registrant asked her if she had two freckles on her back when he removed the two suction pads. The Panel was also of the view that if Patient A did have two freckles, these would have been visible when the suction cups were put in place 20 minutes earlier. Taking these matters into account and having had the opportunity to observe both parties giving live evidence, where the evidence of the Registrant contradicts that of Patient A, the Panel prefers the evidence of Patient A.

12. The Panel considered the evidence of MM and SN. Both witnesses were employed by the Registrant and were essentially character witnesses who provided very positive evidence of the Registrant’s character and professional standing. The Panel accepted their evidence as credible and reliable.

Particular 1a) – Found Proved

13. The Registrant admitted the facts of this particular. The Panel considered the evidence of Patient A, Patient A’s physiotherapy and medical notes, the photographic evidence and the evidence of the expert witness, HC.  The Panel finds the facts of this particular proved, having accepted the Registrant’s admission which is supported by the evidence of Patient A, HC and the supporting documentation. In respect of this particular, the Panel also had regard to the fact that the Registrant noticed something on Patient A’s back immediately after he removed the suction cups as he made reference to the two freckles. In the Panel’s view there is no other plausible explanation for the injury to Patient A’s back other than the treatment administered by the Registrant.

Particular 1b)i)  - Not Found Proved

14. The Registrant denied the facts of this particular. The Panel considered the evidence of Patient A, HC and the Registrant’s evidence. Patient A gave evidence that the Registrant remained with her for a couple of minutes.  The Registrant stated that he had stayed with Patient A for three or more minutes until she was happy with the treatment and was therefore observing her during this time. The Panel does not accept the HCPC’s contention that this particular should be interpreted as not observing Patient A for the whole of the first ten minutes of the treatment. Given that it is accepted that the Registrant observed Patient A for at least the first two minutes of the treatment, the Panel does not find the facts of this particular proved on the balance of probabilities.

Particular 1b)ii) – Found Proved

15. The Registrant denied the facts of this particular.  The Panel considered the evidence of Patient A who gave evidence that in the course of the treatment she informed the Registrant that it was very painful and that it was “more painful than childbirth.” She advised that his response was that the frequency should be higher. The Panel finds the facts of this particular proved, having accepted the evidence of Patient A as opposed to the Registrant’s evidence.  The photographic evidence and the subsequent treatment Patient A received for the burns support her version of events, as in the Panel’s view, in order for injuries of this nature to occur, she would have experienced significant pain during the course of the treatment. The Panel therefore accepts that she did in fact raise concerns about the level of pain she was experiencing and that the Registrant did not respond appropriately to these concerns. The Panel is also of the view that this amounted to a failure to appropriately administer the UR treatment and finds the facts of this particular proved on the balance of probabilities.

Particular 1c) – Found Proved

16. The Registrant denied the facts of this particular.  The Panel considered the evidence of Patient A and the Patient notes in which it is recorded “? skin sl broken at distal electrode ->advice given re skin care”. The Panel also notes that in his written statement, the Registrant states that, having noticed a blemish on her skin, he advised Patient A to observe it, in case it was a minor burn. In his oral evidence to the Panel, the Registrant described the injury as a minor skin irritation or abrasion and stated that it did not look like a burn. Patient A has been consistent in her evidence stating that the Registrant asked her if she had two freckles on her back and when she replied “no”, he told her to keep an eye on it. Having had sight of the photograph which was taken that same evening, the Panel is of the view that the Registrant acknowledged there was an issue having removed the suction pads but has downplayed the extent of the problem. The Panel considered the evidence of Patient A that when she tephoned the Registrant to ask for an explanation and to inform him that she was going the Royal Alexandra Hospital to have her back examined, he informed her that it was an electrochemical burn and that she did not need to go to hospital and just needed to keep it clean and dry. On this basis, the Registrant has clearly provided inadequate post-treatment advice to Patient A. 

17. The Registrant accepted that his recording was inadequate and also accepted that there was no recording of the subsequent telephone conversation between the Registrant and Patient A later that evening. In his written statement, the Registrant also accepts that on reflection the advice that he offered was not well documented. The Panel therefore finds that the Registrant did not record providing adequate post treatment advice to Patient A. 

18. The Panel therefore finds the facts of particular 1c) proved on the balance of probabilities.

Particular 1d) – Found Proved

19.  The Registrant denied the facts of this particular.  While the Registrant denies that he advised Patient A against medical treatment, in his oral evidence he has stated that he told her it was “not necessary” for her to go to hospital. Patient A has been consistent in her evidence whereas the Registrant has provided different descriptions of the injury and in the Panel’s view has been downplaying the extent of the injury. The Panel notes that both Patient A and the Registrant recall that the Registrant told Patient A that it was not necessary for her to go to hospital for treatment to her back. This was said whilst Patient A was en route to the hospital. In the Panel’s view this amounted to incorrect advice from the Registrant. This view is supported by the evidence of HC regarding what was appropriate under the circumstances. The Panel therefore finds the facts of this particular proved on the balance of probabilities.

Decision on Grounds

20. The Panel next considered whether the Registrant’s actions in particulars 1a), 1b)ii), 1c) and 1d)  amount to lack of competence and/or misconduct. The Panel is aware that this is a matter for its professional judgement. In reaching its decision, the Panel has considered the submissions of Mr Millin on behalf of the HCPC and the submissions of Ms Osborne on behalf of the Registrant. The Panel has also had regard to the HCPTS Practice Note on Finding Fitness to Practice is Impaired and accepted the advice of the Legal Assessor.

21. In considering whether the facts proved amount to a lack of competence, the Panel has noted that the facts found proved relate to a one off incident and do not represent a fair sample of the Registrant’s work. The Panel is of the view that, in itself, this single incident is not sufficiently serious to amount to deficient professional performance. In these circumstances the Panel is of the view that the facts found proved do not amount to a lack of competence.

22. The Panel next considered whether the Registrant’s actions in particulars 1a), 1b)ii), 1c) and 1d) amount to misconduct. The Panel is aware that the Registrant is a very experienced practitioner, having qualified as a physiotherapist in 1990 and having worked in the NHS and in professional football prior to opening his private clinic in 1998.  The Panel therefore finds that he had the necessary knowledge, skills and experience to carry out his role. The Panel does not therefore find that his actions resulted from a lack of competence. The Panel is of the view that the Registrant’s conduct in the particulars found proved breached the following standards of the HCPC’s Standards of Conduct, Performance and Ethics :-

• Standard 1.2 – You must work in partnership with service users… involving them, where appropriate, in decisions about the care, treatment or other services to be provided.

• Standard 2.2 – You must listen to service users….and take account of their needs and wishes.

• Standard 2.3 – You must give service users ….the information they want or need in a way they can understand.

• Standard 6.1 – You must take all reasonable steps to reduce the risk of harm to service users…. as far as possible.

• Standard 6.2 – You must not do anything which could put the health or safety of a service user at unacceptable risk. 

• Standard 7.6 – You must acknowledge and act on concerns raised to you, investigating, escalating or dealing with those concerns where it is appropriate for you to do so. 

• Standard 8.1 – You must be open and honest when something has gone wrong with the care, treatment or other services that you provide.

• Standard 10.1 – You must keep full, clear and accurate records for everyone you care for, treat, or provide other services to.

23. The Panel has found that the Registrant has caused two burns to Patient A’s back in the course of treatment, has failed to respond appropriately to the Patient’s concern about pain during treatment, did not provide or record adequate post-treatment advice to a patient and incorrectly advised against seeking medical treatment for the burns.  The Panel has heard evidence from the Registrant that he was aware that Patient A had a low pain threshold and was also aware that this particular treatment could be unpleasant. The Panel has also heard evidence both from the Registrant and from HC that they had never seen this type of injury resulting from any form of electrotherapy treatment. The Registrant’s conduct in these circumstances was serious and fell well below the standards expected of a registered professional. Taking all of these matters into account, the Panel is satisfied that the Registrant’s conduct in particulars 1a), 1b)ii), 1c) and 1d) amount to misconduct.

Decision on Impairment

24. The Panel next considered whether the Registrant’s current fitness to practise is impaired by that misconduct. In reaching its decision the Panel has considered both the personal component and the public component. In addition, the Panel has considered the submissions of Mr Millin on behalf of the HCPC, the submissions of Ms Osborne on behalf of the Registrant and has also had regard to the HCPTS Practice Note on Finding Fitness to Practice is Impaired. In addition, the Panel accepted the advice of the Legal Assessor

25.  In terms of the personal component, the Panel is of the view that in principle, the Registrant’s failings are remediable and there are steps which could be taken which would significantly reduce the risk of similar harm resulting from this treatment. The Panel has heard evidence of the steps taken in the clinic in respect of documentation and record keeping since this incident. However the Panel has not had sight of any documents to support this evidence. The Panel has heard evidence that the Registrant has stopped using this electrotherapy modality. Also, there is no evidence that he has remediated his failure to respond appropriately to a patient’s concerns about pain.  In addition the Panel is of the view that the Registrant has failed to fully investigate the cause of the burns.  The Panel has heard evidence that the Registrant did not contact the manufacturer, nor did he immediately contact the service company, rather he waited to raise a general issue when the next service was due. This attitude is of concern to the Panel in circumstances where both the Registrant and HC have confirmed that they had never seen such an injury arising from electrotherapy treatment.  In the absence of such steps to remediate his conduct, the Panel has concluded that there is a risk of repetition.

26. The Panel has also considered the question of insight. The Panel is of the view that the Registrant has demonstrated limited insight into his failings.  He has not taken personal responsibility for his actions and appears to be focussed on Patient A being financially motivated in raising the issue. This limited insight also leads the Panel to conclude that there is a risk of repetition.

27. The Panel accepts that the Registrant has demonstrated some remorse for his actions, although not accepting responsibility for his actions.

28. The Panel has also considered the critically important public policy issues which include the collective need to maintain public confidence in the profession and in the regulatory process, the protection of service users and the declaring and upholding of proper standards of behaviour.  The Panel’s findings in respect of the Allegation found proved and amounting to misconduct raises concerns as the Registrant’s actions resulted in actual patient harm and his failings have not been remedied. The Panel is therefore concerned that there is an issue of public protection and potential for patient harm.

29. The Panel is also of the view that the Registrant’s misconduct would impact on public confidence in the profession. The Panel has found that the Registrant has caused actual harm to a patient, failed to respond appropriately to her concerns about the pain she was experiencing and has downplayed the extent of Patient A’s injuries. In addition, he failed to provide and record appropriate post-treatment advice and incorrectly advised against seeking medical assistance. The Panel has noted that when asked about the impact of his actions on the profession, the Registrant failed to acknowledge the possibility of any negative reputational consequences arising from his actions. The Panel has concluded that there is a serious risk of an adverse impact on public confidence in the profession and in the regulatory process, if a finding of impairment were not made in these circumstances.

30. The Panel therefore finds that the Registrant’s current fitness to practise is impaired by his misconduct in terms of both the personal component and the wider public component and the Allegation is well founded.

Decision on Sanction
 
31. The Panel has heard further evidence from the Registrant and has heard submissions from Mr Millin on behalf of the HCPC and Ms Osborne on behalf of the Registrant on the issue of sanction. The Panel has considered the sanctions available to it in ascending order of severity, had regard to the Indicative Sanctions Policy and considered the advice of the Legal Assessor.

32. The Panel is aware that the function of fitness to practise panels is not punitive and that the primary function of any sanction is to address public safety from the perspective of the risk the Registrant may pose to those using or needing his services in the future. In reaching its decision, the Panel must also give appropriate weight to the wider public interest considerations, which include the deterrent effect on other registrants, the reputation of the profession and public confidence in the regulatory process. 

33. The Panel has also considered the mitigating and aggravating factors. The aggravating factors are the actual harm caused to Patient A; the Registrant has demonstrated limited insight; there is lack of remediation and a risk of repetition; the Registrant appeared to lack empathy towards Patient A and the Registrant has not taken full responsibility for his actions. The mitigating factors are that the Registrant had an unblemished professional record prior to this incident since qualifying in 1990; the incident, was an isolated incident; the Panel has had sight of very positive testimonials from clinicians and patients; the Registrant has fully engaged with the HCPC process and in his evidence on sanction, the Registrant appeared to have reflected on his actions, accepted the Panel’s findings and to be genuinely committed to addressing his failings.

34. The Panel first considered whether to take no further action and was of the view that this would not be sufficient to protect the public where it had identified a risk of recurrence and a lack of full remediation.

35. The Panel also considered mediation and was of the view that it was not appropriate in these circumstances.

36. The Panel next considered a caution order. In terms of the Indicative Sanctions Policy, a caution may be appropriate where the lapse is isolated or of a minor nature, there is a low risk of recurrence and the Registrant has shown insight and taken remedial action. The Panel has found that the Registrant has not demonstrated insight and has not remediated his failings. In these circumstances, the Panel is of the view that a caution would not be an appropriate sanction as it would not address the need for remediation and thus would not address the risk of repetition.

37. The Panel next considered a conditions of practice order. The Panel is of the view that the Registrant’s failings are capable of remediation. The Panel is also of the view that the Registrant is capable of safe and effective practice while subject to conditions.  The Panel has therefore concluded that a conditions of practice order would be an appropriate and proportionate sanction which would protect the public and address the wider public interest considerations. The Panel considered that a suspension order would be punitive and disproportionate where they had identified failings which were capable of being remedied. Nor does the Panel consider a suspension necessary as a conditions of practice order will fully address any risk to patient safety.

38. The Panel considers that a conditions of practice order would be appropriate for a period of 12 months. The Panel is of the view that this period would be sufficient to allow the Registrant to fully remediate the failings identified.

Order

ORDER: The Panel directs the Registrar to annotate the Register entry for Andrew Binning to show that for a period of twelve months from the date that this order takes effect “the operative date” you must comply with the following conditions:

1. You must produce a written reflective piece reflecting on the implications of the findings of the Panel, including an account as to what steps you would take to ensure patient safety and clinical efficacy before introducing a new electrotherapy modality into your practice. This should be submitted to the HCPC at least 28 days prior to any future reviewing panel.

2. You must identify and work with a mentor (who must be at least a Band 7 registered physiotherapist or equivalent) to formulate a Personal Development Plan designed to address the deficiencies in the areas of patient safety and record keeping.

a) Within three months of the Operative Date you must forward a copy of your Personal Development Plan to the HCPC. 

b) You must meet with your mentor every two months to discuss and reflect upon your clinical practice including patient safety and record keeping and to consider your progress towards achieving the aims set out in your Personal Development Plan.

c) You must allow your mentor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan. This information should be submitted to the HCPC at least 28 days prior to any future reviewing panel.

3. You must not use Ultra Reiz electrotherapy modality in your practice.

4. You must have a minimum of 20 randomly selected patient records from your caseload audited to Chartered Society of Physiotherapy standards by a registered physiotherapist (who must be at least a Band 6 or equivalent).  Such an audit should be conducted twice during the period of this Order and the results should be submitted to the HCPC at least 28 days prior to any future reviewing panel.

5. You must promptly inform the HCPC of any disciplinary proceedings taken against you.

6. You must inform the following parties that your registration is subject to these conditions;

a) any organisation or person employing or contracting with you to undertake professional work

b) any agency you are registered with or apply to be registered with (at the time of application)

c ) any prospective employer (at the time of application)

7. You will be responsible for meeting any and all costs associated with complying with these conditions

Notes

 

Interim Order

1. The Panel considered Mr Millin’s application for an Interim Conditions of Practice Order in terms of Article 31 of the Health and Social Work Professions Order 2001. Ms Osborne did not oppose the application.

2. Having considered both submissions and the advice of the Legal Assessor, the Panel agreed to grant the application for an Interim Conditions of Practice Order under Article 31(2) of the Health and Social Work Professions Order 2001, on the same terms as the substantive order, the same being necessary to protect members of the public and being otherwise in the public interest.  This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Hearing History

History of Hearings for Mr Andrew A Binning

Date Panel Hearing type Outcomes / Status
11/12/2018 Conduct and Competence Committee Final Hearing Conditions of Practice