Mr Laurence Buchanan

Profession: Physiotherapist

Registration Number: PH51813

Hearing Type: Voluntary Removal Agreement

Date and Time of hearing: 10:00 13/12/2018 End: 17:00 13/12/2018

Location: Radisson Blu Glasgow 301 Argyll Street Glasgow G2 8DL

Panel: Conduct and Competence Committee
Outcome: Voluntary Removal agreed

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Allegation

Between 1 August 2015 and 16 December 2015, during the course of your employment as a Physiotherapist by Greater Glasgow and Clyde NHS Foundation Trust, you:

1. accessed your own clinical records on Govanhill Health Centre's TRAK System without clinical justification:

a. on or around 17 August 2015 at 09:33;

b. on or around 28 August 2015 at 10:22;

c. on or around 3 September 2015 at 16:51;

d. on or around 7 September 2015 at 15:25;

e. on or around 21 September 2015 at 13:56.

 

2. accessed the clinical records of your son on Govanhill Health Centre's TRAK System without clinical justification;

a. on or around 7 September 2015 at 08:40;

b. on or around 8 September 2015 at 10:42;

c. on or around 9 September 2015 at 14:24;

d. on or around 2 October 2015 at 08:23.

 

3. accessed the clinical records of your mother on Govanhill Health Centre's TRAK System without clinical justification:

a. on or around 28 August 2015 at 10:22;

b. on or around 7 September 2015 at 08:41;

c. on or around 11 September 2015 at 15:30;

d. on or around 21 September 2015 at 13:55.

 

4. without clinical justification, accessed the clinical records on Govanhill Health Centre's TRAK System of:

a. Patient A;

i. on or around 4 September 2015 at 08:00;

ii. on or around 15 September 2015 at 12:18.

b. Patient B;

i. on or around 29 September 2015 at 08:50;

ii. on or around 2 October 2015 at 15:14.

c. Patient C;

i. on or around 25 August 2015 at 09:11.

d. Patient D;

i. on or around 24 August 2015 at 12:07;

ii. on or around 31 August 2015 at 11:41.

e. Patient E;

i. on or around 21 October 2015 at 17:36.

f. Patient F;

i. on or around 31 August 2015 at 09:46;

ii. on or around 9 September 2015 at 14:25;

iii. on or around 9 September 2015 at 17:36;

iv. on or around 21 September 2015 at 12:50;

v. on or around 2 October 2015 at 15:19.

g. Patient G;

i. on or around 25 August 2015 at 12:48.

 

5. The matters set out in paragraphs 1 - 4 constitute misconduct.

 

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

Finding

Preliminary Matters
Proof of Service
1. The Panel was provided with a signed certificate as proof that the Notice of Hearing had been sent in a letter, by first class post on 25 September 2018, to the address shown for the Registrant on the HCPC register. The Notice of Hearing was also sent to the Registrant by email on the same date. The Panel was satisfied that Notice had been properly served in accordance with Rule 3 (Proof of Service) and Rule 6 (date, time and venue) of the Conduct and Competence Committee Rules.

Proceeding in Absence
2. Ms Senior, on behalf of the HCPC, made an application for the hearing to proceed in the absence of the Registrant under Rule 11 of the Conduct and Competence Committee Rules.

3. The Panel was advised by the Legal Assessor and accepted that advice. The Panel also took into account the guidance as set out in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”.

4. The Panel determined that it was fair and reasonable to proceed with the hearing in the absence of the Registrant for the following interrelated reasons:
• The Panel noted that the substantive hearing that was scheduled to take place on 22-25 May 2017 was postponed due to the Registrant’s health. The HCPC subsequently entered into discussions with the Registrant with regards to a Voluntary Removal Agreement (VRA). The Panel was informed that a VRA hearing was scheduled to take place on 26 February 2018. However, the hearing was cancelled as the signed VRA agreement was not located in time. The Panel noted that the purpose of today’s hearing is to consider the signed agreement and is therefore a joint application made on behalf of both parties. In these circumstances, the Panel concluded that it would be reasonsble to infer that the Registrant’s expectation is that the hearing will proceed in his absence.

• The Registrant has not made an application to adjourn and there is no indication that even if the case were to be adjourned that he would be willing or able to attend on any future date.

• There is no disadvantage to the Registrant as he has made it clear in his communications with the HCPC that he wishes to be removed from the Register.

• It was in the public interest and in the Registrant’s own interests that this hearing commences and proceeds expeditiously.

Private Matters
5. Ms Senior made an application for any references to the Registrant’s health to be heard in private to protect his right to a private life. She also made an application for references to the Registrant’s family members to be anonymised to protect their right to a private life as they would be identifiable from the Allegation as drafted.

6. The Panel accepted that the Registrant’s right to a private life should be protected and that this right also applies to members of his family. Therefore, the Panel directed that the Registrant’s health should only be referred to in private and that his family members should be anonymised to ensure that they do not form part of the public record.

Background
7. The Registrant is a registered Physiotherapist who qualified in 1996. He commenced employment with NHS Greater Glasgow and Clyde in 2001, as a Physiotherapist. He subsequently left in August 2017 due to ill health. At the relevant time, the Registrant was employed as a Band 6 Musculo-skeletal Physiotherapist.

8. On 1 October 2015, two staff members raised a concern with the Registrant’s line manager that they had cause to believe that he had accessed records within the clinical portal - Trakcare, inappropriately. The concerns were raised anonymously, following the staff members overhearing a conversation in the staff room, where the Registrant discussed accessing the records of Person A and Person B.
 
9. On 5 October 2015, Registrant’s line manager, VT, asked him directly whether he had accessed the medical records of any family members. According to VT’s witness statement the Registrant confirmed that he had accessed his own records and those of Person A and Person B.

10. An investigation commenced on 6 October 2015 which concluded on 26 January 2016. During the course of the investigation it was identified, through an audit of the Trakcare system, that the Registrant had also accessed his own records, those of Person A and B and those of a further seven people between 17 August 2015 – 14 September 2015. 

11. The Registrant was interviewed on 15 November 2015 as part of the employer’s disciplinary investigation. He admitted that he had accessed the records and had done so, in relation to his family members, due to a personal concern for their welfare and health and in relation to his own record as he was aware that he had neglected his health. He went on to say that he thought it would be ‘ok’ to look at his own and his family member’s records.

12. The Registrant was suspended from duties on 16 December 2015 whilst the investigation took place. A disciplinary hearing took place on 18 February 2016, which the Registrant attended. He received a final written warning to remain on file for 18 months.

13. A referral was subsequently made to the HCPC on 1 March 2016 .

14. On 17 May 2016, a Panel of the Investigating Committee determined that there was a case to answer in respect of the following allegation against the Registrant:

Between 1 August 2015 and 16 December 2015, during the course of your employment as a Physiotherapist by Greater Glasgow and Clyde NHS Foundation Trust, you:

1. accessed your own clinical records on Govanhill Health Centre's TRAK System without clinical justification:
a. on or around 17 August 2015 at 09:33;
b. on or around 28 August 2015 at 10:22;
c. on or around 3 September 2015 at 16:51;
d. on or around 7 September 2015 at 15:25;
e. on or around 21 September 2015 at 13:56.

2. accessed the clinical records of [Person A] on Govanhill Health Centre's TRAK System without clinical justification;
a. on or around 7 September 2015 at 08:40;
b. on or around 8 September 2015 at 10:42;
c. on or around 9 September 2015 at 14:24;
d. on or around 2 October 2015 at 08:23.


3. accessed the clinical records of [Person B] on Govanhill Health Centre's TRAK System without clinical justification:
a. on or around 28 August 2015 at 10:22;
b. on or around 7 September 2015 at 08:41;
c. on or around 11 September 2015 at 15:30;
d. on or around 21 September 2015 at 13:55.

4. without clinical justification, accessed the clinical records on Govanhill Health Centre's TRAK System of:
a. Patient A;
i. on or around 4 September 2015 at 08:00;
ii. on or around 15 September 2015 at 12:18.
b. Patient B;
i. on or around 29 September 2015 at 08:50;
ii. on or around 2 October 2015 at 15:14.
c. Patient C;
i. on or around 25 August 2015 at 09:11.
d. Patient D;
i. on or around 24 August 2015 at 12:07;
ii. on or around 31 August 2015 at 11:41.
e. Patient E;
i. on or around 21 October 2015 at 17:36.
f. Patient F;
i. on or around 31 August 2015 at 09:46;
ii. on or around 9 September 2015 at 14:25;
iii. on or around 9 September 2015 at 17:36;
iv. on or around 21 September 2015 at 12:50;
v. on or around 2 October 2015 at 15:19.
g. Patient G;
i. on or around 25 August 2015 at 12:48.

5. The matters set out in paragraphs 1 - 4 constitute misconduct.
6. By reason of your misconduct, your fitness to practise is impaired.

15. The substantive hearing was scheduled to take place on 22 – 25 May 2017, but a postponement was granted in advance of the hearing on medical grounds. Medical evidence was provided. Following receipt of this information, the HCPC reviewed the case and considered the circumstances suitable for disposal by way of a VRA. The Registrant indicated in an email dated 11 October 2017, that he would be interested in pursuing a VRA and would send in evidence of his inability to work as a physiotherapist, which was later received on 16 October 2017. He went on to state that he has never denied the allegations, which is consistent with what he has said as part of the employer’s investigation. The Registrant sent a further email on 1 November 2017, in which he stated, ‘I admit my misconduct and agree it affected my fitness to practice’.

16. A VRA hearing was convened to hear the joint application on 26 February 2018. However, the hearing had to be cancelled, as the signed VRA agreement was not located in time. In July 2018, the Registrant confirmed during a telephone discussion with the HCPC that his position remained unchanged. The Registrant subsequently signed the VRA on 10 October 2018, thereby accepting that his current fitness to practise is impaired and confirming that he has no intention of returning to practise.


Submissions
17. Ms Senior, on behalf of the HCPC, submitted that the Voluntary Removal Agreement is an appropriate means of resolving the case against the Registrant. She submitted that voluntary removal is equivalent to a Striking Off Order and would therefore ensure public protection and maintain public confidence in the profession. She further submitted that voluntary removal would not be detrimental to the wider public interest. In addition, Ms Senior drew to the Panel’s attention the relevant documents within the hearing bundle which highlighted the nature and extent of the Registrant’s current state of health.

18. Although there were no written submissions from the Registrant, the Panel took into account the communications between the HCPC and the Registrant. The Panel also took into account the signed agreement itself which confirmed that the Registrant admitted the HCPC’s Allegation in its entirety.

The Panel’s Approach
19. Prior to reaching a decision, on the application for voluntary removal from the Register, the Panel carefully considered all of the available information.

20. On the advice of the Legal Assessor, the Panel considered the criteria for a VRA. The Panel noted that Article 11(3) of the 2001 Order and Rule 12(3) of the HCPC Rules, prevent a Registrant from seeking to resign from the Register whilst subject to an Allegation, a Conditions of Practice Order or a Suspension Order. The Panel also took into account the guidance contained within the HCPTS Practice Note:  Disposal of Cases By Consent which, in respect of Voluntary Removal states that:
“In cases where the HCPC is satisfied that it would be adequately protecting the public if the Registrant was permitted to resign from the Register it may enter into a Voluntary Removal Agreement allowing the registrant to do so, but on similar terms to those which would apply if the registrant had been struck off.”

Decision
21. The Panel noted that a panel of the Investigating Committee determined that there was a ‘case to answer’ and that the Registrant had fully admitted the Allegation. The Panel also noted that as the VRA mirrors the terms of a Striking Off Order, it would prevent the Registrant from practising as a physiotherapist or using any title associated with that profession and would prevent him from making an application to be re-admitted to the register within 5 years.

22. The Panel noted that the Registrant’s misconduct may not have resulted in a Striking Off Order at a substantive hearing. However, the Panel was satisfied that the Registrant’s circumstances met the underlying purpose of removal by consent, which is to avoid unnecessary substantive hearings, in circumstances where the public interest can be met by a consensual disposal.

23. The Panel then went on to consider whether acceptance of the VRA would provide adequate public protection and whether it would be detrimental to the wider public interest. The Panel noted that if it was not satisfied that removal would adequately protect the public interest, the proposed voluntary agreement would have to be rejected, which would mean that the case will proceed towards a substantive hearing before a differently constituted panel of the Conduct and Competence Committee. The Panel also considered the Registrant’s own interests.

24. Based on the documentary evidence and the full admissions made by the Registrant, the Panel was satisfied that the particulars of the Allegation were capable of being found proved on the balance of probabilities. The Panel took into account the nature and gravity of the Registrant’s conduct and was satisfied that these factors would have supported a finding of current impairment of fitness to practise. In addition, the Panel noted that the Registrant has made it clear that he has no expectation that he would ever be able to work again as a physiotherapist due to his ongoing health issues. Furthermore, the Panel was satisfied that the Registrant is fully aware of the  consequences of voluntary removal and has willingly entered into an agreement with the HCPC. 

25. In considering whether removal of the Registrant’s name from the Register was proportionate the Panel noted that his conduct had the potential to damage the reputation of the profession and was likely to undermine public trust and confidence in the profession. In all the circumstances, the Panel concluded that approval of the proposed VRA is both proportionate and appropriate. The Panel also determined that there is a legitimate public interest in avoiding a substantive hearing, in these circumstances, where full admissions have been made as to the facts and grounds and where the Registrant has expressed a clear desire to be removed from the register. 

26. Therefore, the Panel consented to the VRA and was satisfied that the professional disciplinary proceedings should be withdrawn.

Order

No information currently available

Notes

No notes available

Hearing History

History of Hearings for Mr Laurence Buchanan

Date Panel Hearing type Outcomes / Status
13/12/2018 Conduct and Competence Committee Voluntary Removal Agreement Voluntary Removal agreed