Mr Christopher Burns

Profession: Chiropodist / podiatrist

Registration Number: CH18202

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 05/03/2018 End: 17:00 08/03/2018

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

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

Allegation as amended:

‘Whilst registered as a Chiropodist / Podiatrist and employed by City Hospitals
Sunderland NHS Foundation Trust:

1. On or around 11 March 2016, you did not maintain appropriate professional
boundaries with Patient A, in that:

a) You kissed Patient A on the lips;

b) You hugged Patient A;

c) You put your hands on Patient A's waist and/or legs without clinical justification;

d) You discussed private and/or personal issues with Patient A without clinical justification;

e) You told Patient A that 'I can look up your details', or words to that effect without clinical justification;

f) You asked Patient A for their telephone number without clinical justification;

g) Whilst discussing attending conferences for your new job, you asked Patient A if she would like to 'go along with you to a hotel with you', or
words to that effect;

h) You sent requested to ‘befriend’ Patient A a friend request on the social
media website 'Facebook';

i) You sent Patient A messages via the social media website 'Facebook';

2. On or around 12 January 13 April 2016, during a consultation with Patient B:

a) You used spent approximately 5 minutes using your mobile telephone without clinical justification;

b) You did not maintain appropriate professional boundaries in that you stated to Patient B and his her partner that you were 'having woman troubles', or words to that effect;

3. The matters described in paragraph 1 were sexually motivated;

4. The matters described at paragraphs 1c, 1d, 1e, 1f and/or 2a were done without clinical justification.

45. The matters set out in paragraphs 1- 34 constitute misconduct;

56. By reason of your misconduct your fitness to practise is impaired

Finding

Preliminary Matters


Amendment


1. Ms Vignoles applied to amend the Allegation. She submitted that the proposed amendments were largely in the nature of clarification, and tidying up, the particulars. There was a new matter in a proposed 1 g), which alleged that, ‘Whilst discussing attending conferences for your new job, you asked Patient A if she would like to go along with you’, or words to that effect’, deleting the reference to ‘to a hotel with you’. This amendment better reflected the evidence relied on by the HCPC. Similar considerations arose in relation to the proposed amendments to paragraph 2. Notice of the proposed amendments had been given to the Registrant by letter dated 28 July 2017.


2. Mr Smith did not oppose the making of the amendments sought. The Legal Assessor advised that the Panel had the power to grant the application to amend if the proposed amendments would not result in injustice to the Registrant. The Panel granted the application, because there would be no injustice to the Registrant in the circumstances.      

 
Part of Hearing in Private 


3. Mr Smith made an application for parts of the hearing to be conducted in private. He did so by reference to aspects of the Registrant’s private life, which he proposed to rely on as part of his case. Ms Vignoles did not oppose the application. The Legal Assessor referred the Panel to the relevant parts of the HCPTS’ Practice Note, Conducting Hearings in Private, 22 March 2017. The Panel decided that in view of the relevant procedural rules and the principles set out in the Practice Note, the application should be granted. Therefore, the Panel directed that those parts of the hearing concerned with those aspects of the Registrant’s private life be held in private.  


Evidence in Private


4. Mr Smith made a further application, that the evidence of Patient A be given in private. A direction had been given in advance of the hearing that her evidence be given from behind a screen, as a vulnerable witness, pursuant to paragraph 10A(3)(d), HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 as amended (‘the Rules’). That direction was made on the application of the HCPC by the Panel Chair following advice from the Legal Assessor. The decision allowed the question of any further measures to be reviewed at the commencement of the hearing. 


5. Mr Smith applied for a direction under paragraph 10A(3)(e), that the evidence of Patient A be given in private, in addition to the measures so far directed. In support of that application, Mr Smith referred to the statements made by Patient A relied on by the HCPC in support of the original application in which she stated that she did wish to give her evidence in private. He submitted that in all the circumstances such a direction was appropriate. Ms Vignoles stated that she was neutral on the application. The Legal Assessor advised that in the light of Miller v GMC, it was important that the application had been made on behalf of the Registrant, who was in effect waiving his right to have the hearing conducted in public to that extent. The Legal Assessor advised that in all the circumstances it would be appropriate for the evidence to be given in private, though this was a decision for the Panel. The Panel accepted the submissions of Mr Smith and granted the application.


Decision on Facts


6. The Panel heard oral evidence on behalf of the HCPC from the following witnesses, -


MB - Directorate Manager for Therapies, Pharmacy and Pathology, City Hospitals Sunderland NHS Foundation Trust (‘the Trust’).


Patient A.


7. MB conducted an investigation for the Trust into the Registrant’s conduct. She was an honest and credible witness. The HCPC also relied on a witness statement of Patient B and a statement prepared by SB, another Podiatrist working for the Trust. These documents were relied on by the HCPC to establish particular 2 of the Allegation. Although neither Patient B nor SB were called to give evidence, the Registrant did not dispute their evidence. The HCPC also relied on interviews given by two other employees of the Trust, AH and DK, as part of MB’s investigation. No objection was taken on behalf of the Registrant to the fairness of admitting their evidence.

8. The Registrant gave oral evidence. No other witnesses were called on his behalf.


9. In making its decision, the Panel has taken into account all the evidence, both oral and documentary, the admissions made by the Registrant (who admitted the factual particulars save as to part of one sub-particular), as well as the submissions made by Ms Vignoles for the HCPC and of Mr Smith for the Registrant. The Panel has also received legal advice from the Legal Assessor, which it has accepted, the more important parts of which are summarised below.


10. The HCPC bears the burden of proving its factual case to the standard of the balance of probabilities and in deciding the issues of fact before it, the Panel has applied that burden and standard of proof. It has also directed itself on the issues in particulars 1, 3 and 4 (so far as relevant) in accordance with the decisions in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586D-H and In re B [2008] UKHL 35, Lord Hoffman stated at [14] - [15] and [70]. 

 
Introduction


11. The Registrant was employed by the Trust from 2004 until 29 April 2016 as a Band 7 Podiatrist, having submitted his resignation on 29 February 2014. In this role the Registrant was responsible for seeing patients with complex foot complaints. On 14 March 2016 Patient A submitted a written complaint to the Help and Advice Service, following an appointment which took place on 11 March 2016 at the Pallion Health Centre, when she had seen the Registrant. The complaint attached a statement which Patient A had written in the evening of 11 March 2016. The complaint was passed to MB on 15 March 2016. She proceeded to investigate the complaint and conducted several interviews with Patient A, the Registrant and others (see above). The Registrant was suspended pending the investigation. He self-referred to the HCPC on 5 April 2016 in the light of that suspension. The investigations resulted in a disciplinary hearing, which took place on 28 July 2016.  


The Factual Particulars relating to Patient A


12. For convenience, the Panel has first addressed particulars 1 and 3 and the material parts of particular 4 of the Allegation, which relate to Patient A and the events of 11 March 2016. It has, though, considered each part of the Allegation separately in making its findings of fact.


13. Although the Registrant has admitted virtually all the factual particulars, there remained a dispute regarding the context and some significant details of the encounter between Patient A and the Registrant on 11 March 2016, particularly those relating to sub-particulars 1 a) – c).


14. The one act in particular 1 that was not admitted was the final part of sub-particular 1 c), namely the words ‘and/or legs’. Thus, the Registrant admitted that he put his hands on Patient A’s waist, though not on her legs. With that qualification, he admitted that he did commit the acts alleged in particular 1 and that they were sexually motivated.

 
15. The substance of the dispute between the parties related to sub-particulars 1 a) – c) and was as follows. The HCPC alleged that the sexually motivated contact that took place was unwanted. The Registrant alleged that there were two kisses, both shared and mutual. His account was that he had held Patient A’s waist while kissing her (though he did not move her legs out of the way). The first kiss lasted for approximately 10 – 20 seconds and the second kiss about 30 seconds. She had initiated the hugging towards the end of the appointment and he had reciprocated that hug.  


16. The Panel found the following facts as to the first part of the encounter between Patient A and the Registrant that took place on 11 March 2016.

 
17. Patient A had seen the Registrant as a patient for several years and they got on well. Patient A attended her appointment to have new insoles fitted. It was the Registrant’s last appointment for the day and she entered the treatment room at around 15.30 hrs. The Registrant fitted her insoles and the two started chatting about the fact that he was to leave the Trust in about five weeks’ time. He told her how he and his wife had split up and she told him that the same was true for herself and her husband. They discussed other personal matters. He asked if he could send her a ‘friend request’ on Facebook, she agreed to that and he did so. She accepted the request later in the appointment. He asked, jokingly, whether he could have her phone number, to which she replied ‘no’. She said that if he had asked six months before she would have said ‘yes’, but she had a new boyfriend. He joked, saying that he could look up her details on the hospital records system. He told Patient A about his new job, said he would be going to conferences as part of his work and asked if she would like to go with him. She took this in jest and said ‘no’.

 
18. Patient A was sitting on a chair and he was sitting on another chair, directly in front of her. He moved his chair towards her and began to kiss Patient A on the lips. After a couple of seconds or so, she pushed him away and said ‘no’. He moved closer again and she said ‘no’. He then held her by the waist and she said ‘no’ once again. He continued to pull her towards him and she hit him on the left shoulder with the ‘heel’ of her right hand to make him stop. He did so.

 
19. Some loose change had fallen from her pocket onto the floor. He helped her to pick it up and she gathered the rest of her belongings. They hugged and she wished him well in his new job. As she was leaving she asked him some questions about her new insoles, which had been fitted. She left very soon afterwards at around 16.30 hrs. Not long afterwards, there was the first of several messages that passed between them on Facebook later that day.    


20. The Panel’s reasons for those findings as to the second part of the encounter are these. The Panel refers to those exchanges on Facebook. At 16.39 the Registrant sent Patient A a message stating, ‘Hey sorry about that.’ There was no response and at 17.14 he messaged her again asking, ‘Am I forgiven?’ There ensued the following exchange, -    
P.A.  ‘No, I said ‘no’. I meant ‘no’ . I don’t want to see you again.
 R   Seriously
 P.A.  Yes seriously!
 R Am really sorry
 P.A. Just leave it, please.
R Ok’
Some minutes later there was the following further exchange, -
P.A. ‘Chris, I can deal with the flirting. I’m partly to blame. But if I say no, I mean it. You ignored me, completely overstepped the mark and you frightened me. Please leave me alone.
R ‘Ok am not that sort of person and would never hurt you and certainly dont [sic] want to frighten you Pleae [sic] accept my apology Sorry.’


21. The sequence concluded with a message from Patient A later that night, in which she stated, ‘I didn’t want you to kiss me … That’s why I said no. I stayed because I found you easy to chat … now please leave me alone.’


22. The Panel considered that these contemporaneous exchanges were significant. His explanation in oral evidence was that he did not want to worsen a situation that he could see was getting more serious. The Panel found that explanation to be unconvincing and that in these messages the Registrant was attempting to downplay what had happened during the encounter.
23. The Panel also found that in making of a complaint, Patient A had little to gain.


24. Finally, the Panel considered that if the second part of the encounter had included the two shared kisses as alleged by the Registrant, it is unlikely that it would have ended as it did, without any indication of an arrangement to meet again, or discussion about that.


25. The Panel has drawn the following conclusions as regards the relevant factual particulars concerning Patient A.  


‘1. On or around 11 March 2016, you did not maintain appropriate professional boundaries with Patient A, in that:


26. It was not in dispute that the Registrant had failed to maintain appropriate professional boundaries. Therefore, the facts set out in the stem of particular 1 were established in relation to each of the acts found proved in sub-particulars a) – i) of particular 1, as set out below.


‘a) You kissed Patient A on the lips;’
This sub-particular has been found proved.
‘b) You hugged Patient A;’
This sub-particular has been found proved.
‘c) You put your hands on Patient A's waist and/or legs;’


This sub-particular has been found proved by reference to ‘Patient A’s waist’ but not proved by reference to the words ‘and/or legs’.


‘d) You discussed private and/or personal issues with Patient A;’


This sub-particular has been found proved in that the Registrant discussed private and personal issues with Patient A.


‘e) You told Patient A that 'I can look up your details', or words to that effect;’


This sub-particular has been found proved.


‘f) You asked Patient A for their telephone number;’


This sub-particular has been found proved.


‘ g) Whilst discussing attending conferences for your new job, you asked Patient A if she would like to 'go along with you, or words to that effect;’

This sub-particular has been found proved.


‘h) You sent Patient A a friend request on the social media website 'Facebook;’


This sub-particular has been found proved.


‘i) You sent Patient A messages via the social media website 'Facebook';’


This sub-particular has been found proved.


‘3. The matters described in paragraph 1 were sexually motivated;’


27. The Panel has found the matters in the following parts of particular 1 to have been sexually motivated, namely 1 a), 1c), 1 f) and 1 g), but not sexually motivated in relation to sub-particulars 1 b), 1 d), 1 e), 1 h) and 1 i). In so finding, the Panel has applied the ordinary meaning of the words ‘sexual motivation’, no legal or other meaning having been relied on or advised to it. This sub-particular has been found proved in part.
‘4. The matters described at paragraphs 1c, 1d, 1e, 1f …. were done without clinical justification.’
This sub-particular has been found proved in relation to 1 c), 1 d), 1e) and 1 f).


The Factual Particulars relating to Patient B


28. The Panel next considered the factual particulars of the Allegation insofar as they related to the events concerning Patient B. As indicated, these were not in dispute.

29. Patient B was a patient of the Registrant, who saw him for his first, and only, appointment on 12 January 2016. Patient B was accompanied by his wife. When he opened the door to invite them into the appointment, the Registrant was using his phone, looking at it, and calling out Patient B’s name. The couple went into the room, and during the introductions he continued to use his phone. He apologised to them, said that he was having trouble at home with his girlfriend and said words to the effect that he was ‘having woman troubles’.  During the appointment the Registrant used his mobile phone on further occasions, sending text messages or reading texts that he had received. 

30. The Panel has therefore concluded as follows.    
      ‘2. On or around 12 January 2016, during a consultation with Patient B:
a) You used your mobile telephone;
This sub-particular has been found proved.
b) You did not maintain appropriate professional boundaries in that you stated to Patient B and his partner that you were 'having woman troubles', or words to that effect;


This sub-particular has been found proved.


       ‘4. The matters described at paragraph.. …. 2 a) were done without clinical justification.’
This sub-particular has been found proved in relation to sub-particular 2 a).


Decision on Grounds


31. The Panel received and accepted further legal advice from the Legal Assessor on the issue of statutory ground. The facts proved will amount to the statutory ground of misconduct if they fell short of what would have been proper in the circumstances and if, in context, they were sufficiently serious bearing in mind any relevant mitigating factors:  Roylance v GMC [2000] 1 AC 311, PC at pp. 330 to 331 and R (Campbell) v GMC [2005] 1 WLR 3488, CA at [19] - [21]. The Panel should consider the facts in the round and decide whether or not they amount to misconduct in the statutory sense, though any finding of misconduct should exclude any ‘non-serious’ misconduct.


32. In view of the findings of fact made by the Panel, it has concluded that the Registrant failed to comply with the following parts of the HCPC’s Standards of conduct, performance and ethics, January 2016 (‘the Standards of Conduct’), -


Standard 1.1 ‘You must treat service users and carers as individuals, respecting their privacy and dignity.’


Standard 1.5 ‘You must not discriminate against service users … by allowing your personal views to affect your professional relationships with them …’
Standard 1.7 ‘You must keep your relationships with service users .. professional.’


Standard 2.1  ‘You must be polite and considerate.’

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


Standard 2.7 You must use all forms of communication appropriately and responsibly, including social media and networking websites.’


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, or allow anyone else to do anything, which could put the health or safety of a service user .. at unacceptable risk.’


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


33. The Panel considered that, in context, the Registrant’s conduct crossed the threshold of seriousness. Although each of the matters proved constituted a breach of one or more of the Standards set out above, it was the matters proved under particulars 1 a), 1 c), 1 f), 1 g) and 1 i), 3 and 4 (as regards 3 and 4, so far as proved in respect of these sub-particulars of particular 1) and the corresponding breaches of the Standards, which were serious. The Panel has excluded the remainder of the factual parts of the Allegation as being ‘non-serious’ for the purposes of the statutory ground. 

 
34. The Panel considered that the failure to respect professional boundaries and the Registrant’s other breaches of the Standards by engaging in sexually motivated activity in having physical contact with Patient A by kissing her on the lips and putting his hands on her waist (without clinical justification), and the prior act of asking for her telephone number and then subsequently engaging in Facebook messaging, were serious in the circumstances and in view of the findings of fact made by the Panel.

35. The Panel considered that, in context, the Facebook friend request was not serious, being understandable (though not excusable) as the Registrant was leaving the Trust and he and Patient A had known each other for some time. However, the request for the telephone number was more serious in context, as were the Facebook messages. The content of those messages was significant for present purposes, because in them the Registrant was trying to downplay what for her was plainly, from the content of those messages, a serious incident. The Panel has excluded the hugging as ‘non-serious’, which though again not excusable, was not sexually motivated and was also an act reciprocated by Patient A.    


36. Therefore, in all the circumstances (including the Registrant’s admission of misconduct), the facts proved amounted, so far as set out above, to the statutory ground of misconduct.


Decision on Impairment


37. Ms Vignoles submitted that although the Registrant had produced significant material showing the depth and range of his insight, his insight was incomplete in view of the position that he had taken on those aspects of his encounter with Patient A that he had disputed and which the Panel found proved. Ms Vignoles referred to the authority of Yeong v GMC [2009] EWHC 1293 (Admin) and submitted that in a case such as the present, the importance of remediation and insight was much less than in other cases. She submitted that the demands of the wider public interest required a finding of impaired fitness to practise. 

    
38. Mr Smith pointed to the extensive evidence provided by the Registrant on the issues of insight and remediation. That evidence included a reflective diary of 91 pages, compiled over a period of more than 9 months, and testimonials as to his character in particular. He submitted that as regards the events of 11 March 2016, the Registrant had neither before nor since acted towards a patient in a similar manner. This was an isolated incident, which took place at a time when the Registrant faced health and other difficulties in his personal life, which would not affect his professional conduct in the future.


39. Mr Smith submitted that the Registrant’s fitness to practise was not currently impaired. The Registrant’s remediation of his admitted misconduct was now complete, and the risk of repetition was low. Although the Registrant had not accepted the further aspects of the encounter with Patient A, the Panel should not give undue weight to that aspect of the case. What really mattered was that the Registrant had not maintained proper boundaries with the Patient A, that he had admitted this and had also admitted that his behaviour had been sexually motivated. Mr Smith said that the issues regarding the wider public interest were matters for the Panel.      

 
40. The Panel has taken into account its findings of fact, the evidence relevant at this stage and all the submissions made by the advocates (including those summarised above).


41. The Panel directed itself in accordance with the advice given by the Legal Assessor, who referred to the relevant case law, including CHRE v NMC & Grant [2011] EWHC 927 (Admin) at [64] – [76], the guidance given in the HCPTS’ Practice Note,  ‘Finding that Fitness to Practise is Impaired’ and to the Overarching Objective contained in Art. 3(4) and 3(4A) and paragraph 18(10A) of Schedule 1, Health and Social Work Professions Order 2001, as amended. The Panel is tasked to decide whether or not the Registrant’s fitness to practise is currently impaired. As part of its deliberations, he invited the Panel to consider whether this is a case, where professional standards would be upheld, and public confidence in the profession maintained, by the fact that the Registrant has undergone a rigorous disciplinary assessment of their fitness to practise, resulting in a finding of misconduct. Or is it a case where a finding of impairment is necessary in all the circumstances?


42. The Panel has reached the following conclusions. The Registrant’s misconduct was an isolated occurrence in an otherwise unblemished career. The Registrant has shown considerable insight into the consequences of his actions for all the various stakeholders and has expressed his deep sorrow for the distress caused by his actions to Patient A in particular. The misconduct happened at a time when the Registrant was having difficulty in managing his depression and issues in his personal life relating to the breakdown of his marriage. He hid his depression, rather than seeking support and taking time off work.


43. In the two years since, the Registrant has worked with a number of vulnerable people as part of his job as an employee of the Society of Chiropodists and Podiatrists, advising and assisting members of the profession in employment-related matters. In his detailed reflective work, the Registrant has provided concrete examples of how he has addressed issues of professional boundaries in particular, for example in relation to chaperones.

44. The reflective work done by the Registrant was impressive in its depth and range. He is now much more aware of the potential for his medical condition to interfere with his professional obligations and he has taken time off work when appropriate, most recently shortly before this hearing so as to be (as he was) in an appropriate condition to attend and take part in the hearing. He has put in place a strong support network to help him head off and, if necessary, address the potential impact of his depression on his professional obligations.


45. In those circumstances, the Panel has concluded that the risk of repetition of the misconduct is low.
46. In considering the considerations relevant to the wider public interest, the Panel derived assistance from the following part of the judgment of Cox J in the case of Grant, at paragraphs [73] – [74] -
‘73. Sales J also referred to the importance of the wider public interest in assessing fitness to practice in Yeong v. GMC [2009] EWHC 1923 (Admin), a case involving a doctor's sexual relationship with a patient. Pointing out that Cohen was concerned with misconduct by a doctor in the form of clinical errors and incompetence, where the question of remedial action taken by the doctor to address his areas of weakness may be highly relevant to the question whether his fitness to practise is currently impaired, Sales J considered that the facts of Yeong merited a different approach. He upheld the submission of counsel for the GMC that:


"… Where a FTPP considers that the case is one where the misconduct consists of violating such a fundamental rule of the professional relationship between medical practitioner and patient and thereby undermining public confidence in the medical profession, a finding of impairment of fitness to practise may be justified on the grounds that it is necessary to reaffirm clear standards of professional conduct so as to maintain public confidence in the practitioner and in the profession. In such a case, the efforts made by the medical practitioner in question to address his behaviour for the future may carry very less weight than in case where the misconduct consists of clinical errors or incompetence."


74. I agree with that analysis and would add this. In determining whether a practitioner's fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.


47. The professional standards concerning the maintaining of proper boundaries are a fundamental principle of registered practice for chiropody and podiatry. The Registrant has engaged in sexually motivated conduct towards an unwilling patient by kissing her once, by trying to do so again despite her saying ‘no’ on three occasions and only stopping when she made him stop by physical means.


48. The Panel has reminded itself that this was an isolated occurrence in the Registrant’s career. It has considered the context of the misconduct in that Patient A did partly contribute to the events that occurred and came at a time of difficulties in the Registrant’s private life. The Panel has kept in mind all other relevant matters, in particular the insight and remediation shown by the Registrant as well as its conclusion that the risk of repetition is low.


49. Nonetheless, the Panel has concluded that despite all those matters, the need to uphold proper professional standards and public confidence in the profession would not be met by a finding of misconduct alone. In view of the nature of the misconduct and in particular the circumstances set out in paragraph 48 above, a finding of impaired fitness to practise is necessary in order to maintain public confidence in the profession and also to uphold and maintain proper professional standards and conduct for members of the profession.


50. The Panel has recognised that Mr Burns has done everything that could be reasonably expected of him in remediation of his misconduct. However, the wider considerations relating to the public interest have led the Panel to the conclusion that, for the reasons set out above in paragraphs 47 – 50 in particular, the Registrant’s fitness to practise is currently impaired.


Sanction

51. Neither party relied on further evidence at this stage of the hearing.

52. Ms Vignoles submitted that there were a number of aggravating factors in the case, which included the seniority of the Registrant at the time of the misconduct, the length of his professional experience and that he held a position of some responsibility. He should have been well aware of the relevant professional standards.

53. In considering the available sanctions in ascending order of seriousness, the Panel may conclude that a conditions of practice order would not be appropriate in this type of case, where there is a low risk of repetition and the Registrant has remediated the misconduct. She referred to the principle that a sanction is not to be imposed to punish a registrant, though a sanction may have a punitive effect. She submitted that sometimes a punitive effect was unavoidable but necessary. Although the Panel should not impose a disproportionate sanction, it should not be reluctant to impose a sanction if it may have that effect. The demands of the wider public interest, including the need to deter other members of the profession from engaging in such behaviour, may outweigh the personal hardship that may be caused to the Registrant.

54. Mr Smith identified a number of matters by way of mitigation and as being otherwise relevant to the panel’s decision – making at this stage. First, the seriousness of the misconduct should be tempered to a certain degree. The Registrant accepted the factual allegations made against him in these proceedings at an early stage. He has engaged fully with the internal and external regulatory process. There are no previous disciplinary findings against him. There has been no repetition of the misconduct in the two years since it occurred.

55. Mr Smith submitted that the Panel should also give weight to the Registrant’s current role working for his trade union, contributing positively towards the profession. Further, the misconduct took place against a background of matters of personal mitigation. There are a number of positive character references. The Registrant is a good podiatrist and there is a public interest in competent members of the profession retaining their registration. The Registrant has demonstrated insight through his extensive reflective work. He has taken effective remedial actions in relation to his misconduct and addressed his health needs.

56. In the light of all these factors, any sanction imposed on the Registrant should be less severe than it would otherwise have been, had those factors been absent.

57. Mr Smith submitted that in the circumstances the only proportionate sanction would be a caution order, particularly in view of the guidance given in paragraph 28 of the Indicative Sanctions Policy, 22 March 2017 (‘the ISP’). However, if the Panel did consider it necessary to impose a more severe sanction, a conditions of practice order could be formulated to address the misconduct, in the form of a course on sexual harassment.  He submitted that a striking off order would be wholly disproportionate. In relation to suspension, he stated that suspension would not be appropriate in this case. The guidance in paragraph 39 of the ISP should be taken to apply to cases that are so serious that only an order of suspension or a striking off order would suffice; and a caution order can be appropriately applied for a serious case where there are sufficient mitigating and other relevant factors.   

58. The Panel also accepted the advice of the Legal Assessor, who also referred to the principles from the ISP, including that of proportionality and drew attention to the statutory overarching objective to which the Panel was required to have regard, namely the protection, promotion and maintenance of the health, safety and well‐being of the public; the promotion and maintenance of public confidence in the profession and proper professional standards and conduct for members of the profession: Article 3(4),(4A) and paragraph 18(10A) of Schedule 1 of, the 2001 Order. He also drew attention to the decision in Brennan v HCPC [2011] EWHC 41 (Admin) at [47] – [48] and [51] – [53]. Those passages provided guidance in a case, such as the present, where a panel has found a low risk of repetition and where public interest considerations required a finding of impairment.    

59. The Panel has taken into account all the submissions made by Ms Vignoles and Mr Smith, and the advice of the Legal Assessor, as well as its findings at the previous stages of this case and all the evidence so far a relevant to the issue of sanction.

60. The Panel first considered whether or not this was a ‘no action’ case. In view of the seriousness of the misconduct, the Panel decided that taking no action would be an insufficient regulatory response.

61. The Panel next considered a caution order. It is important to bear in mind that the application of the appropriate sanction requires a consideration of all the relevant parts of the ISP. Paragraph 28 of that guidance states, -

     ‘28. 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.’

62. The misconduct was isolated, there is a low risk of recurrence and the Registrant has taken appropriate remedial action, as set out in the earlier part of this Decision. The misconduct was not ‘relatively minor’ However, the Panel has concluded that it was limited, the misconduct was confined to the Registrant and a colleague. This is also a case, where meaningful conditions of practice, i.e. practice restrictions, cannot be imposed. That is because of the conclusion reached by the Panel as to the completeness of the remediation in particular. 

63. Before reaching any conclusions on the appropriateness or otherwise of a caution order, the Panel considered whether a suspension order would be appropriate. Paragraph 39 of the ISP states, -

‘39. Suspension should be considered where the Panel considers that a caution or conditions of practice would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited.’

64. If the Panel were to conclude that a caution order would provide sufficient public protection, it has to bear in mind that the misconduct found was of a serious nature (as set out in paragraphs 35 and 48 of this Decision), albeit that it is unlikely to be repeated. The Panel must also be satisfied that the sanction satisfies the various demands of the wider public interest, particularly as to public confidence in the regulatory process, the deterrent effect on other registrants and the maintaining of public confidence in the profession: see paragraph 6 of the ISP.

65. The Panel accepted that the Registrant’s seniority and length of professional experience did aggravate what was very serious misconduct. It has also accepted all the various points made by Mr Smith as being either mitigating factors or public interest considerations, in particular the Registrant’s ongoing contributions to his profession in his current role, his work relating to the revision of professional standards and in developing written policies, for example one for lone workers.

66. The Panel has also taken into account that a more severe sanction may increase the possibility that the Registrant’s employment might be terminated as a result. However, it has not placed undue weight on that possibility, for the reasons given by Ms Vignoles.   

67. The Panel has already made important findings adverse to the Registrant, namely those of misconduct and impaired fitness to practise, which go some way towards meeting the demands of the wider public interest in this case. 

68. In all the circumstances, the sufficient and proportionate sanction in this case is a caution order of three years. In fixing the period of that order, the Panel has decided that this length of time is necessary to reflect adequately the seriousness of the misconduct and to address the various public interest considerations at play, to mark what was unacceptable conduct on the part of the Registrant. It is also the proportionate response to the Registrant’s impaired fitness to practise. 

69. Therefore, the Panel decided that a caution order of three years should be imposed on the registration of Mr Burns.

Order

Order: That the Registrar is directed to annotate the register entry of Mr Christopher G Burns with a caution which is to remain on the register for a period of 3 year(s) from the date this order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Mr Christopher Burns

Date Panel Hearing type Outcomes / Status
05/03/2018 Conduct and Competence Committee Final Hearing Caution