Mr Jason Keers

Profession: Physiotherapist

Registration Number: PH103411

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 04/06/2018 End: 16:00 06/06/2018

Location: Radisson Blu Hotel, Northern Ireloand ,The Gasworks, 3 Cromac Place, Ormeau Road, Belfast, BT7 2JB,

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

During the course of your employment as a Physiotherapist, you:

1. Between 7 November 2016 and 9 November 2016, stole approximately £160 from your employer.

2. The matter described in Paragraph 1 is dishonest.

3. The matters set out in Paragraphs 1 - 2 constitute misconduct.

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

Finding


Application to amend the allegation


1. Mr Ferson applied to amend a typographical error in Particular 1, namely “9 November 2016”, by replacing it with “19 November 2016”, and by changing the commencement date “7 November 2016” to “1 October 2016” on the basis of the evidence in the case. This was unopposed by Mr Hamill. He stated that it was the Registrant’s case that the theft stretched over a period of 10 to 12 days but not longer. The Panel allowed the application on the basis that it did not cause unfairness and better reflected the state of the witness evidence.


Application to hear parts of the hearing in private


2. Both parties agreed that parts of the hearing, which related to the Registrant’s health and private life, should be heard in private, and the Panel conceded to that request.


Admissions


3. At the outset of the hearing the Registrant admitted the Allegation in its entirety. He admitted Particulars 1 and 2 and Mr Hamill indicated that, whilst the issues of misconduct and impairment were a matter for the Panel, both misconduct and impairment would be accepted on the Registrant’s behalf.


Witnesses


4. The Panel heard live evidence from:
• FM – Chief Executive of [redacted]
• KP – Neurological Physiotherapist employed by [redacted] at the time of these incidents
• The Registrant


Background


5. On 18 July 2016 the Registrant commenced employment as the sole musculoskeletal Physiotherapist for a physiotherapy company ("the Company") wholly owned by a local charity supporting children and adults with acquired brain injury.

6. In November 2016, the Company’s management team noticed that a number of the Registrant’s patients did not appear to have received follow-up appointments. An audit was conducted which suggested that some service users had in fact received follow-up appointments, but in some cases the follow-up appointments had not been recorded by the Registrant. In other cases, there were notes on the system showing that appointments had been held, but there was no record that these appointments had been paid for. In all these cases, cash paid to the Registrant by service users had not been handed over by him to the Company.
7. On the morning of 24 November 2016, FM held a meeting with the Registrant in the presence of KP regarding these concerns. The Registrant claimed that either no follow-up appointment had in fact been carried out, or that an appointment had taken place but the patient had not paid for it.


8. Following this, FM made further enquiries, which included phoning some of the service users and a care home.


9. As a result of the information received, FM held a further meeting with the Registrant at 2pm in the afternoon of 24 November 2016. The Registrant then admitted that he had carried out appointments with two patients in a care home, and had taken cash payments from them.  He had not handed on to his employer one of those payments (Service User A’s money) but had kept it for his own personal gain. He explained that he had been heavily in debt and had been under a lot of stress. He stated that he had only acted in this way on two occasions, having also taken money from Service User B on a separate occasion but not entered it onto the system.


10. On 25 November 2016, the Registrant asked to speak with FM again, and told her that, in addition to the difficulties that he had been experiencing with debt, he had also been suffering from health issues at the time. He also admitted that there had been more cases than previously disclosed when he had taken cash for his own personal gain.


11. Following this further disclosure the Registrant was suspended on full pay until further notice, and was invited to attend a disciplinary meeting on 1 December 2016. He resigned before this could take place.


12. The amount that the Registrant was alleged to have kept for his own gain was in the region of £160 and four service users were identified.


13. In advance of the hearing the Registrant sent an email dated 1 December 2016 to the HCPC with an attached undated letter admitting that on five occasions he had received cash from clients which he had kept for his own benefit, without recording it on the system. He explained that he had been under a considerable amount of pressure at the time. He said he had been in debt in the sum of approximately £15,000. He had previously worked as bank staff in a private hospital.  He applied for work with the Company. During this transition he was left with a considerably reduced income and so he applied for more credit cards and ran up more debt. He eventually applied for an Individual Voluntary Arrangement. In the final paragraph of his email he stated:


“I would like to mention that at no point were my physiotherapy skills, treatment, or interaction with the public and clients brought into question. I was in a very desperate position and desperate mind set due to my financial difficulties. I completely understand my mistakes and was very up front and cooperative when everything came to light.”


14. He also stated in that email that it had been agreed with FM that the money he had taken would be paid back from his final salary. At the hearing the Registrant accepted that, contrary to his understanding, the money he had taken had not been repaid. He stated at the hearing that he was willing to pay the money back.


15. At the hearing the Registrant provided the Panel with a bundle of documentation, which included a number of testimonials, and further details regarding his IVA and financial situation.


16. The Registrant gave evidence before the Panel at the impairment stage. He provided the Panel with further detail regarding the points that he had set out in his email. He said that he felt ashamed and embarrassed, that he was a good Physiotherapist who was passionate about his job, and that all he wanted was a second chance.


17. He accepted that he had not uploaded information relating to some appointments onto the system because he did not want to get caught, but said that this had been spontaneous and that he had not planned it. He said that this related to approximately 4 to 5 patients.


18. He explained that, when he attended the first meeting with FM, he did not make full disclosure because not all the relevant patients had come to mind. In cross-examination he accepted that he had held back information. It was put to him that he had in fact lied and he accepted this also. 


19. He said that he had learnt from his mistakes and now had coping strategies, which meant that he was better equipped to deal with stressful situations in the future. He accepted that he needed more time before he would be ready to return to practice unrestricted and that his practice was currently impaired. He accepted that other Physiotherapists would be “very disappointed” in him and “quite shocked” if they were to hear what he had done. He described what he had done as “a silly mistake”. 


20. He said that he was now working on an occasional basis as a massage therapist for a number of private clients. He also provided the Panel with a cv which stated that he was presently working as a “Physio” with a football team.
Decision on Facts

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

22. The Panel regarded both witnesses called by the HCPC as credible, reliable and honest.


23. The Panel found Particulars 1 and 2 proved on the basis of the admissions entered by the Registrant in the presence of his legal representative, supported by the evidence provided by the witnesses called by the HCPC, as summarised above. On the Registrant’s own evidence, his state of mind had been dishonest at the time, and the Panel concluded that the conduct was clearly dishonest by the standards of ordinary decent people.


Decision on Grounds


24. The Panel accepted the advice of the Legal Assessor who addressed the Panel on the meaning of misconduct and impairment. She referred to the cases of Roylance –v- General Medical Council No 2 [2001] 1 AC p311 and Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Paula Grant [2011] EWHC 927.
25. The Panel concluded that the Registrant had breached Paragraph 9 of the Standards of conduct, performance and ethics, namely, the requirement to be “honest and trustworthy”.


26. The Panel concluded that the Registrant’s actions fell seriously below the standard expected of a registered professional and would be regarded as deplorable by fellow practitioners. On more than one occasion he had stolen cash given to him in the course of his profession by a number of service users, and he had kept this for his own personal gain rather than passing it on to his employer to be used for charitable work.

Decision on Impairment


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

28. The Panel recognised that whilst the Registrant accepted that his fitness to practise remained impaired, the issue remained one for the judgement of the Panel.

29. The Panel first considered the personal component of impairment. The Panel concluded that the nature of the Registrant’s misconduct, namely dishonesty, was difficult to remediate. The Panel noted that, at the time of committing the thefts, the Registrant had concealed his dishonesty by failing to record either the follow-up appointment that he had provided, and/or the cash that he had received. His admission to his dishonesty was piecemeal. He did not initially admit the full extent of what he had done when first questioned by his employer. He then made fuller admissions in the course of the second meeting with his employer, but the Panel concluded that by then he must have been aware that enquiries had been made and evidence obtained. Even then he only admitted to stealing on two occasions, whereas he subsequently admitted five occasions.

30. Whilst he expressed genuine remorse, the Panel was not satisfied that he had shown genuine insight into the seriousness of his actions. He had expressed shame and had assured the Panel that he would never steal again, yet continued to describe his behaviour as a “silly mistake”. He had accepted that he did not upload information about some appointments onto the system, but denied that this had been planned, describing his acts as “spontaneous”. The Panel did not accept that the Registrant could have acted spontaneously in relation to all the cases. Furthermore, it appeared that the Registrant had given no prior thought to the impact that an absence of follow-up appointment records may have had on the future care of service users until he was asked about this in Panel questioning.

31. The Panel wished to make it clear that it regarded the Registrant’s honesty in relation to his personal difficulties, and his recent attempts to address those difficulties, as admirable. Nevertheless, the Registrant himself did not claim to have fully remediated the health issues and personal difficulties that lay behind his misconduct, and the Panel agreed with the accepted stance taken by the Registrant that, for so long as these issues remained unresolved, his fitness to practise was impaired.

32. For those reasons the Panel concluded that there is a risk that the Registrant will repeat his misconduct and that his fitness to practise is impaired on the personal component.

33. It was also the firm judgement of the Panel that the Registrant’s fitness to practise is impaired by reason of the public component. The Registrant’s misconduct consisted of dishonest behaviour carried out in relation to a number of service users in the course of his profession, for his own personal gain, and at the expense of a charitable institution. His behaviour had breached the trust that service users had placed in him and amounted to a breach of a fundamental tenet of the profession. It was clear that his behaviour undermined confidence in the profession and brought the profession into disrepute.

Decision on Sanction


34. In considering what sanction, if any, to impose, the Panel accepted the advice of the Legal Assessor and referred to the Indicative Sanctions Policy.


35. The Panel bore in mind that its purpose was not to be punitive, but was to protect the public interest. It understood that it must act proportionately, balancing the interests of the Registrant with those of the public. It considered the range of available sanctions in ascending order of seriousness, starting with the option of taking no action.


36. The Registrant gave further oral evidence. He provided the Panel with greater detail regarding the personal difficulties that he had been facing at the time of his misconduct and outlined the help that he was now accessing to overcome these problems.


37. He explained that when he gave evidence before the Panel at the impairment stage he had used inappropriate terminology which he now regretted. He said that  his choice of words had been poor, in particular his use of the words “silly mistake” in relation to  his misconduct. He accepted that his actions were serious. He had not intended to diminish the severity of his conduct. Furthermore, his use of the word “spontaneous” was erroneous and he had meant to say that his actions were not pre-meditated.


38. The Registrant accepted that the Panel was right to conclude that the absence of treatment records could have had a detrimental impact on service users and he said that it was very wrong for him to have acted in that way.


39. The Registrant said that mechanisms were being put in place to prevent the repetition of his misconduct. He was seeking help from a number of services. He said that the severity of what he had done, and the impact that this had had on his service users, his employer and on him personally, meant that he would never repeat his misconduct. He understood that what he had done was wrong. He had started his career late in life and wanted to have the possibility of leading a more fulfilled life in which he could continue with his work having dealt with his various personal issues. He stated that this period had been one of the hardest times of his life and he would not go down that path again.


40. The Registrant called a character witness to give evidence. She had received treatment from the Registrant. She confirmed that the Registrant was taking the HCPC proceedings seriously. She said that she was aware that the Registrant had faced challenging personal circumstances at the time of his misconduct but that this had not affected his clinical ability in any way. She described the Registrant as courageous and open about the way in which he was dealing with his personal difficulties and she hoped that he would be given a chance to continue in his profession.


41. The Panel considered the Registrant’s additional evidence with care. The Panel accepted his explanation that he had failed to express himself adequately earlier in the proceedings, for example describing his actions as a “silly mistake” and “spontaneous”. The Panel now accepted, having heard the Registrant give evidence at greater length, that he had in fact developed insight into the effect of his actions. The Panel concluded that, due to the highly unusual mix of acute personal difficulties which the Registrant was dealing with in the context of this case, which were still current at the time of the hearing, the Registrant’s explanation that he had on occasion expressed himself badly and/or inadequately at the impairment stage of the proceedings was understandable. It was apparent that the Registrant had been extremely nervous and emotional throughout the proceedings.


42. The Panel accepted that the Registrant had already taken steps to tackle the root cause of his behaviour. He was seeking professional advice to deal with his personal problems and was developing coping strategies. The Panel was impressed by the Registrant’s candour in telling the Panel that his fitness to practise was impaired as at today’s date.


43. The Panel had already indicated that the Registrant’s behaviour was serious. The dishonesty had been perpetrated over a course of time and breached the trust of a number of service users in connection with a charitable institution. Clearly this merited a serious sanction.


44. However, whilst the Panel did not accept the submission that the Registrant’s behaviour amounted to an isolated event, it did accept that his behaviour had been opportunistic rather than pre-meditated. The Registrant had tried to conceal his behaviour by using two different methods, and this had been readily detected. The Panel also accepted that a period of about 10 - 12 days could not be described as a “sustained” period of misconduct.


45. The Panel took into account the Registrant’s unblemished career hitherto. The Panel was impressed by the Registrant’s evidence about his passion for his profession and his confidence in his skills in his profession as a Physiotherapist. The Panel accepted the submission that the Registrant had a lot to contribute to the public should he be allowed to continue with his registration, and took this into account.


46. The Panel noted that there had been some disagreement and confusion aired in the course of the case concerning the Registrant’s desire to pay back the money that he had stolen. The Panel gave the Registrant the benefit of the doubt in this regard, on the basis that a deliberate decision to avoid repayment did not seem likely, given the Registrant’s complete admission to his misconduct in the course of these proceedings.


47. The Panel also took into account the Registrant’s evidence that he had had no one to turn to at the time, and that his pride had preventing him from seeking help. The Panel noted that this part of his personal life was now changing, and that he had developed insight into the personal issues that underpinned his misconduct.


48. The Panel found the following to be aggravating factors:
• the Registrant had abused the trust of at least four service users;
• the Registrant had been motivated by personal gain;
• the money was stolen from a charitable institution.

49. The Panel regarded the following to be mitigating features:
• the Registrant’s good character hitherto;
• the testimonials produced by the Registrant in support of his good character;
• the Registrant’s admissions before his regulator;
• the highly unusual and difficult personal circumstances and health issues that the Registrant suffered at the time;
• the fact that he had shown genuine remorse and was developing insight into the effect of his actions on his employer, and the wider public;
• the fact that his offending had been unsophisticated and opportunistic;
• the fact that he had demonstrated a good understanding of what he had to do to overcome his personal problems, was seeking help and was developing coping mechanisms.


50. In view of the seriousness of the misconduct, the Panel concluded that to take no further action, to impose a Caution Order or to impose a Conditions of Practice Order would not be sufficient to protect the public or maintain confidence in the profession and the regulatory process. It could not be said that the misconduct was isolated or minor. There remained a risk of recurrence. The Registrant’s dishonesty was difficult to remediate and the Registrant had not yet evidenced full insight.


51. The Panel considered a Suspension Order. The Panel concluded that this was the appropriate and proportionate sanction given the exceptional circumstances of this case. Whilst the Panel accepted that the Registrant’s actions had been serious, for the reasons set out earlier in this determination, the evidence suggested that the Registrant had been dealing with a very stark period of his life at the relevant time. He was now in the process of addressing his personal issues, and the Panel concluded that, whilst he currently presents a risk to the public and his fitness to practise is impaired, a Suspension Order was the proportionate response in light of the mitigation put forward. The Panel took into account the different stressors that had come together at the relevant point in time: the high level of debt that had built up. The Panel accepted that, in light of these powerful mitigating circumstances, it would be appropriate to give the Registrant a chance of continued registration.


52. The Panel concluded that a suspension period of 12 months was appropriate given the seriousness of the conduct, as described earlier in this determination.


53. The Panel considered a striking off order but concluded that this would be disproportionate in light of the exceptional mitigating features of this case. The Panel reminded itself of the guidance given in the Indicative Sanctions Policy, and in particular that a striking off order is a sanction of last resort and should be used when there is no other way to protect the public, for example when there is a lack of insight, or continuing problems, or denial. The Policy indicated that a striking off order may be appropriate when any lesser sanction may lack deterrent effect or undermine confidence in the profession. The Panel was impressed by the Registrant’s oral evidence at the sanction stage, by his character references, both written and oral, and by the evidence of efforts he had made to address the underlying issues. The Panel considered that this demonstrated the Registrant’s willingness to resolve matters. In those circumstances it was the judgement of the Panel that it could not be said that suspension would lack deterrent effect. The Panel also considered that a reasonable member of the public, in possession of all the relevant facts, and in particular the compelling mitigation put forward, would accept that a Suspension Order was the proportionate response in the circumstances.


54. The Panel concluded that a future reviewing Panel would benefit from


• Up to date medical assessments from a psychiatrist and a GP, to be served 1 month in advance of the first review;

• Third party evidence of continuing engagement with any specialist organisation that assists the Registrant with the personal issues underlying his misconduct. In particular, evidence that he has continued to deal with the issues which gave rise to his misuse of alcohol at the time of his misconduct;

• Evidence from any future employer if that employer permits the Registrant to handle cash;

• Evidence of CPD activities which meet HCPC standards, with particular emphasis on Standard 3 (“ A registrant must seek to ensure that their CPD has contributed to the quality of their practice and service delivery”) and Standard 4 (“A registrant must seek to ensure that their CPD benefits the service user”), to be served 1 month in advance of the first review, evidencing how the Registrant has reflected on, and learnt from, his misconduct.

 

Order

 

Order: That the Registrar is directed that Mr Jason Keers be suspended from the register for a period of 12 months.

 

Notes

No notes available

Hearing History

History of Hearings for Mr Jason Keers

Date Panel Hearing type Outcomes / Status