Dr Mohinder J Surdhar

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, dated 7 June 2018, by First Class post, to the address shown for the Registrant on the HCPC register via email on the same date. As the Registrant is currently serving a prison sentence, the Notice of Hearing was also sent to him at his current prison location on 28 June 2018. 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 & Competence Committee Rules 2003 (as amended).

Proceeding in Absence

2. Having determined that service of the Notice of Hearing had been properly effected, the Panel went on to consider whether to proceed in the Registrant’s absence, as permitted by Rule 11 of the Conduct & Competence Rules 2003 (as amended). The Panel was advised by the Legal Assessor and followed that advice. The Panel also took into account the guidance as set out in the HCPC Practice Note “Proceeding in the Absence of the Registrant”.

3. The Panel determined that it was reasonable and in the public interest to proceed with the hearing for the following reasons:

(i) The Registrant has not responded to the Notice of Hearing. The Panel noted that as the Registrant is currently a serving prisoner attendance in person was unlikely to be possible. However, there is no indication that he wished to participate in the hearing by video-link, telephone or by providing written representations. In these circumstances the Panel was satisfied that it was fair and reasonable to conclude that the Registrant’s non-engagement is deliberate and demonstrates a voluntary waiver of his right to participate in these proceedings.

(ii) There has been no application for an adjournment and no indication that the Registrant would attend or be able to attend on any future date. Therefore, re-listing this case would serve no useful purpose.

(iii) The Panel was satisfied that given the serious nature of the allegation there is a strong public interest in ensuring that this Final Hearing commences and proceeds expeditiously.

Background

4. The Registrant was a locum physiotherapist for Worcestershire Health & Care Trust (the Trust). The HCPC received a call from the Trust on 15 June 2015 informing them that the Registrant was in prison in relation to a firearm offence. 

5. On 1 July 2015, the HCPC called the Registrant’s sister who provided information that she believed that the Registrant had been charged with supplying prohibited ammunition and that this was linked to gang activity.

6. On the 13 August 2015, the HCPC was advised by the West Midlands Police that the Registrant was arrested as part of a wider police operation in relation to the supply of firearms to criminal gangs in the West Midlands. The police later informed the HCPC on 24 September 2015, that the Registrant’s trial had been fixed for May 2016.

7. On 27 May 2016, the HCPC were informed that the Registrant had entered a guilty plea to conspiracy to possess/acquire/transfer prohibited firearms and ammunition on 9 March 2016. However, as there was a co-defendant, his trial delayed the Registrant’s sentencing hearing.

8. The Registrant was sentenced on 31 January 2018 to 14 years imprisonment. His Honour Judge Bond (HHJ Bond) in his sentencing remarks repeated the words of Lord Judge in the case of R v Wilkinson [2009] EWCA criminal 1925:  
"The gravity of gun crime cannot be exaggerated.  Guns kill and maim, terrorise and intimidate.  That is why criminals want them.  That is why they use them and that is why they organize their importation and manufacture, supply and distribution.  Sentencing courts must address the fact that too many lethal weapons are too readily available.  Too many are carried, too many are used always with devastating effect on individual victims and with insidious corrosive impact on the well-being of the local community." 

 
9. HHJ Bond went on to state during his sentencing remarks:
‘…you are now age 58 and you are a man of previous good character.  You were a physiotherapist with a PHD.  You are well-educated and well-respected in your field.  You worked the British karate team.  You were also a section 1 firearm certificate holder and owned a significant number of firearms including rifles, one of which was a large steer sniper rifle which can kill a man from between one and a half to two miles away.  You also possessed several long barrel pistols with a metal bar added to the grill in order to get around the prohibition on handguns.  Having said that, all of these weapons and associated ammunition were legally held by you.  Firearms dealers and those entitled to possess such weapons are trusted by the police and by the public to handle and transfer such weapons responsibly.  A person does not have an automatic right in law to possess them or deal in them.  It is a privilege which carries with it the aforementioned responsibility and trust.  This case is mainly about you deliberately breaching this trust in order to make substantial amounts of money.’

10. In his assessment of the Registrant’s culpability HHJ Bond made the following remarks:

‘Person 2 was at the top of the chain of supply and he was illegally importing many handguns both current and antique into the United Kingdom.  He, in my judgment, has the highest culpability in this conspiracy but yours is not much less than his.  You have the connection with Person 2 and also sourced firearms and ammunition or components from other persons as well including over 50 guns from Person 4.  Your connection was not just up the chain of supply but down it as well as you sold these items on to Person 3.  You knew the destination, the use and purpose for which the guns were being supplied.  Your culpability in my judgment has to be greater than that of Person 1.’

11. HHJ Bond in imposing the 14 year prison sentence identified the following factors which he described as ‘substantial mitigation’:

(i) The Registrant demonstrated genuine remorse, in that he accepted that the lives of others were put at risk as a result of his criminality. 

(ii) The Registrant was not just of good character but of positive good character having risen to become the chief physiotherapist for the English karate team in 1996. 

(iii) The criminal proceedings had a profound effect on the Registrant’s family.

(iv) During his remand into custody the Registrant has used his time wisely by undertaking various educational courses, in particular mentoring, achieved an enhanced status within the prison and has become a ‘listener’.

Decision on Facts and Grounds

Panel’s Approach

12. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything and the particular of the Allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities.

13. In reaching its decision the Panel took into account the documentary evidence including the Certificate of Conviction. The Panel also took into account the HCPC Practice Note entitled ‘Conviction and Caution Allegations’. The Panel was aware that in accordance with Rule 10(1)(d), it could not go behind the conviction and was required to accept the certification from Birmingham Court as conclusive proof of the conviction itself and the underlying facts.

Decision

Particular 1 – Found Proved

‘On 9 March 2016 at Birmingham Crown Court they were convicted upon your own confession of: 

Conspiracy to transfer prohibited weapons and ammunition.’

14. The Panel was provided with a Certificate of Conviction in the name of the Registrant, which was signed by an officer of the court. The Panel accepted the Certificate of Conviction, dated 5 January 2018, as conclusive evidence that on 9 March 2016, the Registrant was convicted of conspiracy to transfer prohibited weapons and ammunition.

15. The Panel was therefore satisfied that the facts and grounds have been proved.

Impairment

Panels Approach

16. The Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel took into account the submissions of Mr Dite on behalf of the HCPC. The Panel also took into account the HCPTS Practice Note: ‘Finding that Fitness to Practise is Impaired’ and the HCPTS Practice Note: ‘Conviction and Caution Allegations’. The Panel accepted the advice of the Legal Assessor.

17. In determining current impairment the Panel had regard to the following aspects of the public interest:

• The ‘personal’ component: the current behaviour of the individual registrant; and

• The ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

Panel’s Decision

18. The Panel considered the Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective.

19. The Registrant’s conviction demonstrates a course of conduct which demonstrated a significant breach of the high standards of conduct and behaviour expected of a registered practitioner.  The Panel also noted that the Registrant chose to put his financial interests above the safety and well-being of others. The Registrant’s criminal activities persisted for a significant period of time and it appears that it was only brought to an end as a consequence of his arrest. In these circumstances the Panel took the view that had the Registrant not been apprehended the criminal conspiracy would have continued. Although the Registrant has demonstrated some degree of insight, having pleaded guilty at an early stage of the criminal proceedings, in the absence of meaningful reflections the Panel took the view that the risk of repetition could not be excluded. Furthermore, as there has been no engagement from the Registrant during these proceedings the Panel was unable to assess the scope and level of the Registrant’s insight since his sentence hearing in January 2018.

20. The Panel concluded that for these reasons the Registrant’s fitness to practise is currently impaired based on the personal component.

21. In considering the public component the Panel had regard to the important public policy issues which include the need to protect the public, maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour.

22. The Registrant’s conduct fell far below the high standards expected of a registered practitioner. The Panel noted the observations of HHJ Bond that ‘over a period of several years [the Registrant] acted as the fulcrum in the supply of prohibited weapons and ammunition for criminal gangs…[and] supplied hundreds of guns to the gang.’ The Panel also noted that the guns and ammunition the Registrant had supplied had been ‘used to murder three separate people.’ In these circumstances the Panel had no hesitation in concluding that members of the public would be appalled by the Registrant’s conduct and behaviour and that public trust and confidence in the profession and the HCPC as the regulator would be seriously undermined if a finding of impairment was not made. given the nature and seriousness of the Registrant’s criminal behaviour.

23. The Panel concluded that the Registrant’s current fitness to practise is impaired on the basis of both the personal component and the wider public interest and therefore the HCPC’s case is well-founded.

Decision on Sanction

Panel’s Approach

24. The Panel accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of any sanction is not to punish the Registrant, but to protect the public and the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator and by upholding proper standards of conduct and behaviour. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity.

25. The Panel had regard to the Indicative Sanctions Policy (ISP) and took into account the submissions made by Mr Dite on behalf of the HCPC.

Panel’s Decision

26. The Panel considered the aggravating and mitigating factors in determining what sanction, if any, to impose.

27. The Panel identified the following mitigating factors:
• the Registrant is of previous good character;
• he made full admissions during the criminal proceedings;
• he expressed remorse which the Panel accepted as genuine.

28. The aggravating factors identified by the Panel were as follows:

• the criminal activity persisted for a significant period of time and involved hundreds of weapons which are still being found at crime scenes;
• the Registrant’s degree of culpability was high as he was at the ‘fulcrum in the supply of prohibited weapons and ammunition to criminal gangs.’;
• the weapons supplied by the Registrant were used in the death of three people;
• the Registrants actions were for personal financial gain.

29. The Panel first considered taking no action. The Panel concluded that in view of the nature and seriousness of the Registrant’s serious criminal activity and in the absence of exceptional circumstances, to take no action on his registration would be inappropriate. Furthermore, it would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession.

30. The Panel then considered a Caution Order.  The Panel noted paragraph 28 of the ISP which states:
“A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action. A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate. A caution order is unlikely to be appropriate in cases where the registrant lacks insight.’

31. The Panel concluded that the Registrant’s criminal conduct was not isolated, in that it persisted for several years and could not be described as minor in nature. Although the Registrant had demonstrated some insight it was limited to his guilty plea during the criminal proceedings and was insufficient to indicate that there was no risk of repetition. Furthermore, the Panel concluded that a Caution Order would be inappropriate and insufficient to meet the wider public interest.

32. The Panel went on to consider a Conditions of Practice Order. The Panel noted that the ISP states at paragraph 33:
‘Conditions will rarely be effective unless the registrant is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so. Therefore, conditions of practice are unlikely to be suitable in cases:

• where the registrant… lacks insight…;
• where there are serious… failings;’

33. The Panel acknowledged that a conviction for a serious criminal offence will not usually be amenable to a Conditions of Practice Order, as the basis for this type of conduct is an attitudinal failing. The Panel concluded that, in the circumstances of this case, given the nature of the Registrant’s criminal conduct, there are no conditions that could be formulated that would adequately address the serious nature of the Registrant’s behaviour in choosing to engage in a conspiracy to supply weapons and ammunition to criminal gangs. Imposing a Conditions of Practice Order in these circumstances would seriously undermine public confidence in the profession, the HCPC as a regulator and the need to uphold high standards of conduct and behaviour.

34. The Panel next considered a Suspension Order. A Suspension Order would send a signal to the Registrant, the profession and the public re-affirming the standards expected of a registered practitioner. However, the Panel took into account the case of CRHP v GDC and Fleischman [2005] EWHC 87 Admin, where it was made clear that if a registrant has been convicted of a serious criminal offence and is still serving their sentence at the time the matter comes before a panel, the panel should not normally permit the registrant to resume their practice until that sentence has been satisfactorily completed. The Panel noted that even if the maximum suspension period of 2 years was imposed the Registrant would still be serving his sentence either in prison or on licence in the community.  In these circumstances a Suspension Order would not be sufficient to maintain public trust in the profession and the regulatory process and would not have a deterrent effect on other registrants.

35. Having determined that a Suspension Order does not meet the wider public interest the Panel determined that the Registrant’s name should be removed from the Register. A Striking Off Order is a sanction of last resort and should be reserved for cases where there is no other means of protecting the public or the wider public interest. The Panel decided that the Registrant’s case falls into this category. The Registrant’s criminal activities were serious, involved a high degree of culpability and there is no information available to indicate that a lesser sanction would be justified.

36. The personal conduct displayed by the Registrant was a fundamental departure from the level of trust and confidence expected of a registered physiotherapist. The Panel does not consider that there is any way to protect the public other than through a Striking Off Order. Any sanction short of a Striking Off Order would fail to declare and uphold proper standards and would fail to maintain public confidence in the profession and the HCPC as its regulator.

37. The Panel had regard to the consequential impact a Striking Off Order would have on the Registrant but concluded that his interests were significantly outweighed by the Panel’s duty to give priority to the significant public interest concerns raised by this case.

38. The Panel decided that the appropriate and proportionate order is a Striking Off Order.

Proceeding with the application in the Registrant’s absence

39. Mr Dite made an application for the hearing to proceed in the Registrant’s absence to consider an application for an interim order.

40. The Panel decided that it was appropriate to consider the HCPC’s application for an interim order in the absence of the Registrant because he had been informed in the Notice of Hearing sent to him on 7 June 2018 and 28 June 2018, that such an application might be made, and he has not responded with regard to that warning. Furthermore, there are no additional factors which would justify deviating from the Panel’s decision to proceed in absence at the outset of the hearing. In these circumstances, the Panel was satisfied that (i) the Registrant had voluntarily chosen not to participate in these proceedings, (ii) no useful purpose would be served by adjourning the HCPC’s application and (iii) as a substantive order has been imposed there is public interest in ensuring that an interim order application is considered as expeditiously as possible.

Decision on Interim Order

41. In considering the HCPC’s application for an immediate Interim Suspension Order, the Panel was mindful that when a substantive sanction is imposed, a registrant’s entitlement to practise is unrestricted whilst their appeal rights against the substantive sanction remain outstanding.  However, the Panel noted that in reality the Registrant will be in custody for up to 7 years and even if he were to be granted early release he would still be in custody beyond the 18 month period of any Interim Suspension Order. In these circumstances the Panel was not satisfied that an Interim Suspension Order was necessary as there is no realistic prospect that the Registrant would be in a position to practise unrestricted.

42. The Panel took the view that reasonable and informed members of the public would appreciate that the wider public interest has been served by imposition of a Striking Off Order and that no further order is necessary to cover the appeal period given the length of the custodial sentence that has been imposed on the Registrant. Therefore, the Panel concluded that the absence of an interim order would not seriously undermine public trust and confidence.

43. Accordingly, the Panel determined that the Registrant’s registration should not be suspended on an interim basis. 

Order: The Registrar is directed to strike the name of Dr Mohinder J Surdhar from the Register on the date this order comes into effect.

 A hearing was held on 27 July 2018 in London, and a striking off order imposed.

History of Hearings for Dr Mohinder J Surdhar