Mr Troy L Stephens

Profession: Chiropodist / podiatrist

Registration Number: CH32578

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 12/03/2018 End: 17:00 15/03/2018

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

Panel: Conduct and Competence Committee
Outcome: No further action

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Allegation

(As amended at the final hearing)
Whilst registered and working as a podiatrist;

1. At Solent NHS Trust, you in respect of Patient A:
a) On or around 3 October 2013 discharged Patient A from the Podiatry Service without ensuring that:
i. an adequate review of the Patient had been undertaken;
ii. a care plan had been completed.
b) Did not communicate appropriately in that you said:
i. upon discharge “it was only the general public's fault for voting in Conservatives" or words to the effect;
ii. The patient’s presenting condition was “just cosmetic” or words to that effect.

2. At Lancashire Foundation Trust on or around 28 July 2015, in respect of Patient B, you did not deal with infection control effectively in that you:
a) did not use a new pair of gloves when treating the Patient for debridement;
b) did not take adequate care to ensure that a new dressing remained sterile; and/or
c) inappropriately used an emery board to treat Patient B’s ulcer.

3. At Featherstone Road Clinic, on or around 7 April 2016, whilst treating Patient C, you:
a) Did not enquire into and/or record her medical history;
b) Cut the Patient's feet in multiple places, which caused bleeding;
c) Did not properly dress and/or record the cuts made to the Patient's feet as set out in 3(b);
d) Did not arrange a follow up appointment.

4. The matters set out in paragraphs 1 - 3 constitute misconduct and/or lack of competence.

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

Finding

Preliminary matters
Application to amend the Allegation
1. The Panel heard an application by Mr Chalmers, on behalf of the HCPC, to amend the Allegation as particularised above. The Registrant had been notified of the application and the details thereof on 18 July 2017. Ms Molyneux confirmed that the Registrant did not object to the application. The Panel received and accepted the advice of the Legal Assessor. It was satisfied that the amendments were necessary and desirable as they provided greater clarity, did not substantively change the nature of the Allegation, and were not prejudicial to the Registrant.

Proceeding in private
2. The Panel noted that there would be reference made, in the proceedings, to the health and private lives of some of the witnesses.  It was satisfied that the redactions in the evidence before it were sufficient to protect the identities of the relevant witnesses and noted that there was no application for parts of the hearing to be heard in private. In these circumstances, the Panel determined that it was appropriate to conduct the hearing entirely in public, in the interests of openness and transparency of proceedings. In reaching this conclusion the Panel accepted the advice of the Legal Assessor and had regard to Rule 10 (1)(a) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (‘the Rules’) and also to the HCPTS Practice Note, ‘Conducting Hearings in Private’, March 2017.

Evidence to be disregarded
3. The Panel noted the redactions to one of the exhibits and also the witness statement of DO’B who undertook the investigation into the complaint made regarding the treatment received by Patient A. These redactions were made after the Panel had had sight of those parts of the evidence. The Panel accepted the advice of the Legal Assessor and noted the principles in the case of Mahfouz v GMC [2004] EWCA Civ 233. Accordingly, it confirmed that it would entirely disregard its knowledge of those parts of the evidence which were not relied upon in the proceedings and noted, in particular, that the evidence redacted from the witness statement of DO’B did not relate to any part of the Allegation.

Special measures
4. The Panel next considered applications on behalf of the HCPC for Patient B and Person C to give evidence by telephone. It noted the representations of Mr Chalmers of behalf of the HCPC and the objections of Ms Molyneux on behalf of the Registrant. It accepted the advice of the Legal Assessor and had regard to the contents of the HCPTS Practice Note ‘Special Measures’, March 2017, and Rule 10A of the HCPC (Conduct and Competence Committee) Procedure Rules 2003 (“the Rules”).

Patient B
5. The Panel noted that on 22 January 2018, prior to the hearing, Special Measures had been granted to Patient B in the form of video link facilities, due to his physical disability. 

6. His Podiatrist had confirmed that it would not be safe for Patient B to travel on public transport to the final hearing and it was clear that he could not travel any distance without assistance which ordinarily came from Person A, his wife and carer. Furthermore, it was apparent that transportation by car would not be a safe or practicable mode of transport given the distance Patient B would be required to travel to the final hearing when considered in light of his medical condition. The Panel noted that, in January 2018, at the time the application for special measures was originally considered, the Registrant had indicated that he did not object to the application.

7. The information now before the Panel was that Person A had recently been admitted to hospital and was suffering from a significant health condition, such that she was unable to support Patient B to leave the house. There was documentary evidence from Person A’s Doctor, dated 23 February 2018 (received by the HCPC on 2 March 2018), attesting to her  own health condition and associated mobility issues. Mr Chalmers submitted that Patient B had now effectively become his wife’s carer and there was no-one else available to assist him in leaving the house to attend a location from which video link evidence could be given. The application was therefore to amend the nature of the special measures granted, in order to permit Patient B to give telephone evidence from his home.

8. Ms Molyneux objected to the application on the basis that there had been insufficient exploration, on the part of the HCPC, of the potential for video link evidence or similar visual evidence such as Skype to be given from Patient B’s home.

9. The Panel accepted the submission for the HCPC that there was no facility or structure within the HCPC regime to facilitate the receipt of video link or other visual evidence from a domestic residence. This was due to issues of confidentiality and security. Accordingly, this type of evidence would have to be arranged at an outside venue and Patient B’s disability and personal circumstances meant that he was unable to undertake such a journey. It noted that Patient B was able to give relevant and critical evidence in respect of matters which go directly to Particular 2 of the Allegation.

10. The Panel was mindful that, if the application was not granted, Patient B would be unable to give live evidence. The Panel therefore determined that it would serve both parties for Patient B to be in a position to give oral evidence at the hearing. The HCPC would be able to present its case without having to rely on his evidence as hearsay, and the Registrant would be afforded the opportunity to test Patient B’s evidence should he wish to do so. Furthermore, the Panel could not identify any obvious prejudice to the Registrant in Patient B giving evidence by telephone as opposed to video link evidence, the latter of which the Registrant had not objected to. His credibility could still be appropriately tested and any potential unfairness in the presentation or weight to be attached to such evidence could be dealt with by way of submissions at the appropriate time. In making this decision, the Panel had regard to issues of fairness relating to the Registrant, Patient B and also to the wider public interest in ensuring that there is public confidence in the proceedings and in encouraging witnesses to come forward. Accordingly, the application was granted. The Panel was content that this decision is consistent with the duty under Article 32(3) to conduct the case expeditiously.

Person C
11. Person C is the mother of Patient A. The application on behalf of the HCPC was to grant Person C permission to give telephone evidence as she was unable to attend the hearing in person due to child-care commitments. It was clear from the history of the case that it had been the intention of the HCPC, until the first day of the final hearing, to rely on the written evidence of Person C as hearsay evidence. 

12. The Panel considered a file note dated 21 September 2017, in which a Case Manager had recorded that Person C had expressed some unwillingness to attend the hearing as she felt that her statement ‘was unfair and [a] biased reflection upon the Registrant and [she] therefore does not wish to participate [in the hearing]’. At that time, her statement was unsigned and she indicated that she wished to withdraw it.  However, in order to provide context to the assertions in the file note, the attention of the Panel was drawn to an e-mail from Person C to the HCPC, dated 2 September 2017. In this e-mail, it appeared that the concerns which Person C had had in relation to the contents of her statement, related to the disclosure of her profession and the associated risk that an inaccurate impression could be formed that she was giving evidence as a health-care expert and not as the mother of Patient A. The information now before the Panel was that, subsequent to the communications in September 2017, the witness had voluntarily continued her engagement with the HCPC in support of the investigation, she had signed her statement and, more recently, she had made arrangements to be available at various times over the first three days scheduled for the final hearing, in order to give telephone evidence. Ms Molyneux, on behalf of the Registrant, objected to the application on the basis that there was insufficient evidence that Person C was unable to attend the hearing in person.

13. The Panel noted that Person C was able to give direct evidence relevant to Particular 1 of the Allegation. Her evidence was the sole and critical evidence specifically in relation to the discrete issues of communication pleaded at Particular 1(b) of the Allegation. The Panel also noted that her child-care commitments/difficulties were evidenced in the e-mail to the HCPC dated 2 September 2017 and it was likely that, if the application was not granted, Person C would be unable to attend the hearing and give live evidence. In all of these circumstances, the Panel was satisfied that it would be in the interests of both parties for Person C to give oral evidence by telephone at the hearing. The HCPC would be able to present its case without having to rely on her evidence as hearsay (which could not be tested), and the Registrant would be afforded the opportunity to test the reliability of Person C’s evidence should he wish to do so. In reaching this decision the Panel bore in mind fairness to the witness, the Registrant, the HCPC and the public interest in having fair and transparent proceedings. Accordingly, the application was granted in the interests of justice and fairness to all concerned. The Panel was also satisfied that this decision is consistent with the duty under Article 32(3) to conduct the case expeditiously.

Hearsay applications
14. The Panel next heard applications to consider the admissibility of various pieces of hearsay evidence. Objections in respect of each application were received on behalf of the Registrant. The Panel accepted the advice of the Legal Assessor. It noted the guidance in the cases of Ogbonna -v- NMC [2013] EWHC 1595 and Bonhoeffer -v- GMC [2011] EWHC 1585. In particular, the Panel noted that it must exercise caution when considering the applications due to the nature of hearsay evidence, but that it was entitled to admit hearsay evidence as a matter of principle, subject to the requirements of relevance and fairness. It also noted  the guidance in Thorneycroft -v- NMC [2014]  EWHC 1565  and had regard to the criteria in Section 4 of the Civil Evidence Act 1995 in considering the potential weight (if any) which could be attached to the hearsay evidence in the event that the Panel granted the applications.

15. Section 4 of the Civil Evidence Act 1995 (the Act) states as follows:
(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2) Regard may be had, in particular, to the following—
(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

The Evidence of Person D and Exhibit 10
16. Mr Chalmers invited the Panel to admit the oral evidence of Person D who was in attendance and available to give evidence. Person D is the daughter of Patient C. Her evidence and the complaint she had made (contained in Exhibit 10 of the HCPC’s bundle) in respect of Patient C’s treatment, essentially consisted of matters reported to her by Patient C and Person D’s siblings.

17. Patient C attended the appointment for treatment with the Registrant on 7 April 2016 alone. Mr Chalmers submitted that it was neither reasonable nor practicable to call Patient C to give evidence as to what occurred at this appointment as she was an elderly lady in poor health and English was not her first language. A decision had been made by the HCPC, based on information received directly from Person D, that Patient C was suffering from health issues which precluded her from giving evidence. Furthermore it was fair to admit the hearsay evidence, which could be appropriately assessed in terms of weight and reliability by the Panel at the conclusion of the case, because:
• Person D’s complaint was made the day after treatment was received;
• There was other corroborative evidence available by way of the evidence of SS, who undertook the investigation into Person D’s complaint on behalf of the London North West Healthcare Trust.  SS could give evidence that, within 24 hours of the treatment in question, she met with Patient C and received an account from her directly which was consistent with the hearsay evidence of Person D.  Photographs of Patient C’s feet, also taken with 24 hours of the treatment would provide further corroborative evidence.

18. Ms Molyneux, on behalf of the Registrant, submitted that the evidence of Person D was so inherently unreliable that it would be prejudicial and unfair to admit it. She asserted that:
• There was no independent evidence to confirm that Person D’s informal evaluation of the health of Patient C was accurate and that it did indeed prevent her from giving evidence. The HCPC had in fact made no effort to secure the attendance of Patient C to give direct evidence or to check her health status. Neither had it made enquiries to establish whether she was able to give evidence either by way of special measures and/or through an interpreter or other form of appropriate supportive measure. Furthermore there were no file notes available to confirm that conversations underpinning the evaluation of Patient C’s health, attributed to Person D, had in fact taken place;
• The corroborative evidence said to be available was, itself, either circumstantial or hearsay evidence and therefore unreliable;
• The evidence contained significantly prejudicial assertions of personal opinion;
• The evidence contained examples of multiple hearsay which is inherently unreliable. In particular, comments attributed to a hospital doctor who treated Patient C in an Accident & Emergency Department (“A & E”) on 7 April 2016, which were then repeated along with an expression of personal opinion by Person D’s brother to Person D, were particularly prejudicial in the absence of any independent evidence which could have been obtained by HCPC but which was not.

19. In applying the relevant criteria to the question of this application, the Panel focused on the relevance and quality of Person D’s evidence, the availability of supportive evidence and the circumstances of the non attendance of those who reported, to her, the matters which form the basis of her evidence.

20. The Panel was satisfied that Person D’s evidence was directly relevant to Particular 3 of the Allegation and the treatment received by Patient C on 7 April 2016. However, the Panel noted that Person D’s evidence was entirely reliant upon what was said to her by Patient C or Person D’s siblings (which was itself multiple hearsay). The Panel determined that it had not been provided with a good and cogent reason as to why Patient C had not been called or at the very least approached or invited to give evidence. Similarly there was nothing before the Panel to demonstrate why Person D’s brother, who could give direct evidence for example, of events and comments made in A & E on 7 April 2016, had not been called to give evidence. The Panel could not be satisfied that the HCPC had taken reasonable steps to secure the attendance of Patient C or Person D’s brother, neither had it taken reasonable steps to secure appropriate corroborative evidence in the case.

21. The Panel noted that whilst the photographic exhibits could potentially corroborate the condition of Patient C’s feet shortly after the treatment, it could not fully corroborate assertions made about acts and omissions said to have taken place during the appointment on 7 April 2016. The only corroborative evidence available in that respect came in the form of other hearsay evidence. There was an inherent prejudice in relying upon hearsay evidence which, the Panel determined, could not be cured in this case. The Panel noted in particular in this respect that:
• The reliability of the statements made by Patient C to Person D could not be properly tested by way of the cross examination of Person D;
• There were no medical records from either A & E or the London North West Healthcare Trust regarding the respective treatment received on the relevant date;
• There was no statement or other evidence from the hospital Doctor who treated Patient C  on the same day as her consultation with the Registrant;
• There was no direct evidence as to the activities of Patient C after she had seen the Registrant on the relevant date;
• There were examples of multiple hearsay, extremely prejudicial opinion evidence and the repetition of third party assumptions contained within the evidence of Person D. The Panel noted that, in respect of multiple hearsay, it is particularly difficult to test the assertions of each individual in the chain of repetition and as such, it must exercise an appropriate degree of caution in considering this type of evidence. The evidence of opinion and personal assumption  was inadmissible in principle in any event.

22. In all of these circumstances the Panel considered that the evidence of Person D in isolation, was inherently unreliable. In the absence of reliable corroborative evidence, the assertions made in her evidence as to what took place during Patient C’s consultation with the Registrant on 7 April 2016, could not be properly tested.  The Panel was satisfied that this would cause the Registrant significant prejudice which could not be cured during its consideration as to what weight to attach to the evidence. It was clear to the Panel that, in applying the factors in Section 4 of the Act, if this evidence was to be admitted, then little, if any weight, could realistically be attached to it after applying the appropriate degree of caution.
23. The Panel was careful to balance the public interest in allowing the HCPC to present its case as fully as possible, with the prejudice to the Registrant of being unable to test this evidence. Accordingly, the Panel refused the application. It was satisfied that the prejudicial effect on the Registrant significantly outweighed the public interest in admitting the evidence in this instance. For the same reasons the Panel also excluded the evidence of Person D’s complaint contained within Exhibit 10 of it’s bundle which formed the basis of her evidence.

Exhibit 1
24. The Panel next considered the admissibility of the evidence contained within Exhibit 1 of the HCPC bundle. This exhibit was the letter of complaint made by Person B, Patient A’s father, on 13 October 2013. Mr Chalmers conceded the fact that the assertions contained within the exhibit were entirely based upon reports made to Person B by his wife, Person C. Nevertheless, he submitted that the exhibit was relevant and reliable as it was contemporaneous evidence which was corroborated by the evidence of Person C. 

25. Ms Molyneux objected to the application on behalf of the Registrant.  She asserted that there was no witness statement from Person B and no evidence as to what efforts had been made by the HCPC to secure either a witness statement from Person B or his attendance at the final hearing.

26. The Panel was satisfied that the contents of Exhibit 1 were relevant to Particular 1 of the Allegation and the treatment received by Patient A on 3 October 2013. It noted that the complaint had been made very soon after the treatment received by Patient A and that there was further evidence available by way of Person C’s direct evidence, which could be tested for reliability under cross examination. Furthermore, the Panel understood that the nature of the Registrant’s defense in respect of Particular 1 was that he was not the treating Podiatrist. It therefore follows that the document, which did not identify the Registrant, would not be subject to significant challenge.

27. In all of these circumstances, the Panel was satisfied that the interests of justice fell in favour of admitting this evidence. It was satisfied that any prejudice could be cured when the Panel assessed the weight to be given, if any, to the evidence, after applying the provisions of Section 4 of the Act and an appropriate level of caution. Accordingly, the Panel determined that the evidence was admissible. It was satisfied that the public interest in allowing the evidence to be admitted outweighed any prejudicial effect on the Registrant in the circumstances. The Panel also noted a further protection in dealing with this evidence, in that it would have the benefit of ongoing legal advice in respect of the evaluation of hearsay evidence which was applicable to the document in question.

28. It was also mindful of the public interest in allowing the HCPC to present its case as fully as possible

Paragraph 18 of the Witness Statement of SS
29. The Panel was next invited to make a determination on the admissibility of hearsay evidence contained within the witness statement of SS. This witness undertook the investigation on behalf of the London North West Healthcare Trust into the complaint made in relation to the treatment received by Patient C. At paragraph 18 of her statement she repeated assertions made to her by Patient C  which the Registrant objected to on the basis that the reliability of the assertions made could not be tested.

30. The Panel was satisfied that the evidence in question was directly relevant to Particular 3(b) of the Allegation, namely whether the Registrant had cut the Patient's feet in multiple places, thereby causing bleeding. It noted that SS was herself a Podiatrist at the relevant time, who directly observed the condition of Patient C’s feet within 24 hours of the consultation with the Registrant. SS could therefore give factual evidence as to the condition of Patient C’s feet very soon after treatment and whether it was consistent with the Allegation. The assertions made by Patient C could be tested, to an extent, by cross examination of SS who observed and spoke directly with Patient C the day after her treatment. Further corroborative evidence was available by way of the photographs exhibited.

31. In all of these circumstances, the Panel was satisfied that the interests of justice fell in favour of admitting this evidence. It was satisfied that any prejudice or unfairness which became apparent during the giving of the evidence could be cured when the Panel assessed the weight to be given, if any, to the evidence, after it had: considered relevant submissions; applied the provisions of Section 4 of the Act; and exercised an appropriate degree of caution. Accordingly, the Panel determined that the evidence was admissible. It was satisfied that the public interest in allowing the evidence to be admitted, and thereby permitting the HCPC to present its case as comprehensively as possible, outweighed any prejudicial effect on the Registrant in the circumstances. The Panel also noted the further protection available in dealing with this evidence, in that it would have the benefit of ongoing legal advice in respect of the evaluation of hearsay evidence.

Person A’s Witness Statement and Exhibit 4
32. On 13 March 2018, day two of the final hearing, the Panel was invited to consider the admissibility of the written statement and letter of complaint of Person A. Person A is Patient B’s wife, who was present with Patient B at his podiatry appointment on 3 October 2013. Mr Chalmers submitted that it had been his intention to make an application for Person A to give telephone evidence from her home, but he had wished to reserve his position pending an up to date assessment of her condition. The Panel’s attention was drawn to the following file notes:
• On 20 February 2018 the Case Manager noted that ‘[Person A] sounded quiet and weak on the phone and she said that she was feeling weak…. she had planned on phoning [the Case Manager] that day but didn’t feel up to it.’ Person A had gone through her diagnosis on the phone. When the Case Manager indicated to Person A that it may be possible to rely upon her written statement in the proceedings, Person A had ‘said that would be best, since she didn't know if she would have the strength’.
• On 28 February 2018 the Case Manager noted that, during a conversation with Patient B, it had been indicated that Patient B did not think it likely that Person A would be ‘up to’ giving evidence by telephone.
• On 12 March 2018 the Hearings Officer had noted that, during a conversation with Patient B to confirm his availability to give telephone evidence, he had indicated that there had been no change to Person A’s condition and that she was still ‘not up to’ giving evidence.

33. Mr Chalmers submitted that, in all of these circumstances, it was clear that Person A could not give oral evidence and invited the Panel to consider her written statement and original letter of complaint. He asserted that it would be fair to admit this evidence as it was corroborated by the oral evidence of Patient B, whose evidence could be tested.

34. Ms Molyneux objected to the application on the basis that, whilst the Registrant accepted that there was a good reason for Person A’s non attendance at the hearing, it would be prejudicial to admit her statement and associated letter of complaint. She submitted that there was a significant challenge to this evidence in that Person A identified the Registrant, by name, as the Podiatrist who treated her husband during the relevant appointment. It would not be possible to test the cogency and reliability of this evidence, in particular clarification could not be sought as to how Person A came into possession of the Registrant’s name. Person A’s evidence goes to the very heart of Particular 2 which is particularly serious as it alleges deficiencies in treatment and harm caused.

35. In applying the relevant criteria to the question of this application, the Panel was satisfied that the evidence was relevant to Particular 2 of the Allegation.  Person A accompanied Patient B to the appointment on 3 October 2013, she identified the Registrant as the treating Podiatrist.  She was also actively involved in supporting Patient B and health-care professionals in dressing his wound in a way commensurate with the clinical trial in which he was participating and can also give relevant evidence in this respect. The Panel was satisfied that all reasonable efforts had been made by the HCPC to secure the oral evidence of Person A and it was not reasonable, in light of her health condition, for her to attempt to give live evidence or to be contacted further.

36. The Panel noted that the Registrant’s defence to Particular 2 of the Allegation was that he disputed that he was the treating Podiatrist. However, the Panel was mindful that Person A’s evidence was not the sole or decisive evidence in relation to the identity of the Registrant. This evidence could be corroborated by the direct evidence of Patient B who also identified the Registrant. Patient B’s evidence could be tested for reliability under cross examination. In particular questions could be put to Patient B as to how he and/or his wife came into possession of the name of the Registrant. Further questions in this respect could also be put to VL who investigated the complaint made by Person A. There was no suggestion that Person A had any reason to fabricate her evidence and, whilst the  final decision to rely on the written evidence of Person A was not made until Day two of the hearing, the Registrant had been on notice that there was potential for this application prior to the hearing.

37. In all of these circumstances, the Panel was satisfied that it was in the interests of justice to admit this evidence. It noted the serious nature of Particular 2 of the Allegation, but considered that any prejudice or unfairness which became apparent during the hearing could be the subject of submissions and then cured when the Panel assessed the weight to be given, if any, to the evidence, after it had  considered it in the context of all of the other evidence available to it and exercised an appropriate degree of caution. Accordingly, the Panel determined that the evidence was admissible. It was satisfied that the public interest in allowing the evidence to be admitted, and thereby permitting the HCPC to present its case as comprehensively as possible, outweighed the prejudicial effect on the Registrant in the circumstances. The Panel also noted the further protection available in dealing with this evidence, in that it would have the benefit of ongoing legal advice in respect of the evaluation of hearsay evidence.

Background
38. The Registrant is a registered Podiatrist who was employed as a Locum Podiatrist at a number of NHS Trusts on an agency basis.

39. From May 2013 to October 2013 the Registrant was employed, on a six month contract, as a Band 5 Podiatrist, at Solent NHS Trust. In October 2013 a complaint was made to Solent NHS Trust by Person B in relation to the treatment received by his daughter, Patient A. This complaint was investigated by DO’B.

40. From September 2014 to August 2015 the Registrant was employed at Lancashire NHS Foundation Trust as a Band 5 Locum Podiatrist. In August 2015 a complaint was received by Lancashire NHS Foundation Trust from Person A in relation to the treatment received by her husband, Patient B. This complaint was investigated by VL.

41. From 29 March 2016 to 8 April 2016 the Registrant was employed by London North West Healthcare NHS Trust as a Band 6 Locum Podiatrist. On 8 April 2016 a complaint was received by London North West Healthcare NHS Trust from Person D in relation to the treatment received by her mother, Patient C.  The complaint was investigated by SS.

Decision on facts
Submission of No Case To Answer - Upheld
42. At the conclusion of the case for the HCPC, Ms Molyneux invited the Panel to consider that there was no case to answer in respect of each of the Particulars of the Allegation.

43. She submitted that there had been no evidence presented to the Panel in respect of Particular 3(a) and, in respect of all other particulars, the evidence presented by the HCPC was so weak and tenuous that, when the evidence was taken at its highest, no reasonable tribunal, properly directed, could find any part of the Allegation proved to the requisite standard.

44. Mr Chalmers conceded that there was no evidence in respect of Particular 3(a). However, he asserted that in all other respects, whilst there was an absence of corroborative documentary evidence, the other evidence presented was not so weak or tenuous such that no reasonable tribunal, properly directed, could find the Registrant responsible for the Particulars alleged. 

45. The Panel carefully considered all of the HCPC evidence in the case. It noted the submissions of Mr Chalmers and Ms Molyneux. It accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note, ‘Half Time Submissions’ dated March 2017.  In making its determination, the Panel applied the test laid down in R v Galbraith [1981]1 WLR 1039 and bore in mind that the standard of proof ultimately applicable to the evidence was the balance of probabilities.

46. On behalf of the HCPC, the Panel heard oral evidence from:
• DO’B and Person C in relation to Particular 1;
• VL and Patient B in relation to Particular 2;
• SS in relation to Particular 3.

47. In respect of Particular 2, it also considered a written witness statement from Person A, the wife of Patient B. In addition, the Panel received two bundles of documentation from the HCPC, comprising the witness statements of those who gave evidence and 92 pages of exhibits. It also noted the documentation put to the witnesses in cross-examination on behalf of the Registrant.

48. The Panel first made an assessment of the credibility of the witnesses and the reliability of all of the evidence presented to it.  In general, the Panel considered that the witnesses who gave oral evidence were honest, largely consistent, and they clearly gave their evidence in good faith. The Panel could identify no attempt to embellish the evidence and, where there were shortcomings in the evidence exhibited to the Panel, the witnesses were open in admitting this and in describing their efforts to assist the HCPC.

49. The Panel recognised that any properly directed tribunal would exercise caution in considering any hearsay evidence before it.  Accordingly, it considered that weight would be attached to any hearsay evidence, only to the extent that it was appropriate, where the evidence was corroborated or consistent with other evidence received. It also noted the relevance of Section 4 of the Act in this respect as detailed above.

Particular 1
50. The identification of the Registrant, as the Podiatrist who treated Patient A on 3 October 2013, was disputed in respect of this Particular. No other matters in respect of this Particular were disputed. In considering the relevant test therefore, the Panel scrutinised the availability, strength and quality of the evidence in respect of this element of the facts pleaded at Particular 1.

51. There was clearly some evidence available which identified the Registrant as the Podiatrist who treated Patient A on the relevant date.

52. The witness, DO’B, who was the Clinical Manager for Solent West Podiatry Services at Solent NHS Trust, gave evidence in respect of the investigation into the complaint made to the Trust regarding the treatment received by Patient A. She stated that she had checked the Trust’s records and had identified the Registrant as the treating Podiatrist from the computer system employed at the Trust at the relevant time, System 1 (“the System”). She gave details of the way in which patient records were entered onto the System, which included the use of Smart-Cards, passwords and Personal Identification Numbers (“PIN’s”) which were unique to each individual Podiatrist using the System. DO’B confirmed that she had seen the Registrant’s details, activated by his Smart Card, on the records of Patient A’s appointment on 3 October 2013. However, no records to corroborate this assertion were exhibited. The Panel noted that the facts alleged took place five years ago and it was unclear what period of time had elapsed since DO’B had viewed the records. It noted that DO’B was potentially recalling material which she had viewed only once, several years earlier. Furthermore, DO’B confirmed that, during the investigation of the complaint for the Trust, the Registrant had neither been given the opportunity to respond to the complaint, nor asked whether he was the attending Podiatrist  at the relevant time.

53. The only documentary record available in this respect was produced on behalf of the Registrant in cross-examination. A copy of Patient A’s records had been received by the Registrant in February 2018, following a Subject Access Request under the Data Protection Act 1998. This single record produced did not have reference to any record having been made by the Registrant in respect of Patient A. Without speculating, DO’B could not explain why this was so, given what she said she had seen on the records when she checked them during her investigation for the Trust. DO’B, however asserted in her evidence, that she thought the parents of Patient A had also identified the Registrant as the treating Podiatrist when they made their complaint about the treatment received.

54. Person C, the mother of Patient A, named the Registrant as the treating Podiatrist in her witness statement. This appeared to corroborate the assertion made by DO’B that Patient A’s parents knew the identity of the treating Podiatrist. However, under cross examination, Person C confirmed that the Podiatrist who treated Patient A on 3 October 2013 had not provided his name during the appointment. Person C asserted that she had been given the Registrant’s name by the Trust during the complaints procedure. The letter of complaint written by Patient A’s father on 13 October 2013,  ten days after the treatment, did not identify the Registrant either, which supported the suggestion that the identity of the Registrant was not known by the parents at that time. This undermined the evidence of DO’B.

55. The Panel noted therefore, that the only evidence which could potentially corroborate DO’B’s identification of the Registrant was based entirely upon anonymous hearsay evidence which emanated from the Trust.  It would be wholly unsafe to rely upon such untested and inherently unreliable evidence. The Panel therefore considered that the evidence of Person C and the associated letter of complaint had no evidential or corroborative value in this respect.

56. Furthermore, given the weaknesses and inconsistency, identified above, in DO’B’s own evidence, the Panel was satisfied that the evidence in respect of Particular 1 was so tenuous that no reasonable tribunal, properly directed, could find it proved to the requisite standard. Accordingly, the Panel found that there was no case to answer in respect of Particular 1 of the Allegation.

Particular 2
57. The identification of the Registrant, as the Podiatrist who treated Patient B on 28 July 2015, was disputed in respect of this Particular. No other matters in respect of this Particular were disputed. In considering the relevant test therefore, the Panel considered the availability, strength and quality of the evidence in respect of this element of the facts pleaded at Particular 2.

58. There was clearly some evidence available which identified the Registrant as the Podiatrist who treated Patient B on the relevant date.

59. The witness, VL, who was the Podiatry Professional Lead at Lancashire Care NHS Foundation Trust (“the Lancashire Trust”) at the relevant time, gave evidence in respect of the investigation which she undertook into the complaint made in relation to the treatment received by Patient B. Her evidence was that it was the Registrant who had treated Patient B on the relevant date.  On an unspecified date in 2015, she had reviewed the patient notes, which were hand written. VL asserted that she had seen the Registrant’s name on a ‘front sheet’ to the notes. She had also checked the rota for the relevant clinic and the Registrant was identified as the treating Podiatrist thereon. The front sheet and the rota, which were referred to by VL, were not exhibited by the HCPC.

60. The only documentary evidence available in this respect was produced on behalf of the Registrant in cross-examination. A copy of Patient B’s records and a rota document had been received by the Registrant, in March 2018, following a Subject Access Request under the Data Protection Act 1998. The Panel noted that within the rota document another Podiatrist, DL, was identified as the person allocated to the clinic attended by Patient B. VL was able to say that the hand-written patient notes in respect of Patient B’s treatment were not those of DL, however without speculating, she was not able to say who had written the notes. Certainly the signature was inconclusive. There was no independent handwriting evidence available to the Panel and no information as to how many other Podiatrists were working at the relevant time. The documentary evidence produced by the Registrant significantly undermined the testimony of VL. Furthermore, the Panel noted that, during the investigation of the complaint according to VL, she had contacted the Registrant’s agency about the matter. However, according to VL, she had received no reply.

61. The Panel therefore determined that it would be unsafe for any properly directed tribunal to rely on the evidence of VL in isolation.  Accordingly, it went on to consider the availability of any corroborative identification evidence.

62. Patient B gave evidence that, whilst he named the Registrant in his statement, the person treating him did not provide his name during the appointment.  He confirmed that either he or his wife had been given the Registrant’s name by the Lancashire Trust during the complaints process, prior to his wife making her written complaint. Patient B’s identification evidence in this respect was entirely based upon the information provided by the Trust.

63. Person A, Patient B’s wife, also named the Registrant as the person who treated Patient B on 28 July 2015, in her witness statement. The evidence was untested, hearsay evidence and the Panel reminded itself that any reasonable tribunal would be directed to exercise caution when considering this evidence. The reasonable inference was that Person A’s identification evidence was also based upon information provided by the Trust,  having been received in the way described by Patient B in his evidence.

64. The Panel noted therefore, that the only evidence which could potentially corroborate  VL’s identification of the Registrant was based upon anonymous hearsay evidence emanating from the Lancashire Trust. It would be wholly unsafe to rely upon such untested and inherently unreliable evidence. The Panel therefore considered that no reasonable tribunal, properly directed, could attach any weight to this evidence, and as such, the evidence of Patient B and Person A had no evidential or corroborative value in this respect.

65. In all of these circumstances, the Panel was satisfied that the only evidence in respect of Particular 2, that of VL, was so weak and tenuous that no reasonable tribunal, properly directed, could find it proved to the requisite standard. Accordingly, the Panel found that there was no case to answer in respect of Particular 2 of the Allegation.

Particular 3
66. Mr Chalmers conceded that no evidence had been adduced in relation to Particular 3(a). The Panel noted that the only potential evidence in this respect came from Person D, whose evidence it had excluded. Accordingly, the Panel determined that there was no case to answer in respect of Particular 3(a).

67. In other respects, the Registrant accepted that he had treated Patient C at the Featherstone Road Clinic on 7 April 2016. The Panel noted that the primary dispute in respect of this Particular arose in respect of Particular 3(b). The Registrant entirely denied that he had cut Patient C’s feet in multiple places, thereby causing her bleeding. The parties were in agreement that the other remaining Particulars flowed from any potential finding in respect of this matter.  The Panel noted specifically that if Particular 3(b) could not be proved to the requisite standard, then the necessity to properly dress and/or record cuts and to arrange a follow-up appointment could not be established. In considering the relevant test therefore, the Panel focussed on the availability, strength and quality of the evidence in respect of the facts pleaded at Particular 3(b).

68. There was clearly some evidence available which potentially indicated that the Registrant, as the Podiatrist who treated Patient C on the relevant date, had  caused cuts to Patient C’s feet which led to bleeding. This evidence came from the witness, SS, and also the photographs and patient records exhibited.

69. SS was the Acting Head of Podiatry for the London North West Healthcare Trust (“the London Trust”) during the relevant period. She undertook the investigation into the complaint made in relation to the treatment received by Patient C. She visited Patient C on 8 April 2016, the day following the appointment with the Registrant. On this occasion she examined Patient C’s feet and gave evidence as to their condition. She exhibited photographs of Patient C’s feet which she had taken on 8 April 2016, and also a photograph taken by Patient C’s son. She also, very helpfully, explained the matters recorded in the patient notes and she exhibited documentation from the internal investigation. This included a written response to the complaint by the Registrant dated 11 April 2016.

70. The Panel noted that the written statement of SS appeared to corroborate the fact that there were cuts to Patient C’s feet. SS explained that cuts inflicted to a patient’s foot can be an acceptable consequence of normal practice. In her oral evidence, SS agreed that she could not confirm whether these ‘cuts’ were actually cuts directly inflicted on the patient’s feet (either by the Registrant on 7 April 2016 or in some other way) or whether they were, in fact, ‘breaks’ in the skin associated with its fragility and caused by day-to-day pressure upon it. SS openly asserted that she could not determine the actual cause of the cuts/breaks in the skin which she observed on the feet of Patient C on 8 April 2016. She did however, highlight that the patient notes recorded by the Registrant on 7 April 2016, and also the photographic evidence exhibited, demonstrated that the Registrant had debrided (removed the dead skin) on the medial (inside) aspect of the Patient’s feet with a scalpel which was consistent with the location of the cuts/breaks observed by her the following day. Nevertheless, the Panel noted that, in her oral evidence,  she also identified cuts/breaks in the skin on several other aspects of Patient C’s feet which did not form part of the HCPC’s case. This undermined any potential inference which could be drawn that the Registrant caused the cuts seen on the medial aspects of the feet.

71. The Panel noted therefore, that there was no evidence in relation to the cause of the cuts/breaks other than a report made by Patient C to SS on 8 April 2016. This was hearsay evidence which must be treated with an appropriate degree of caution. The Panel noted that, in terms of the quality of this hearsay evidence, there were potential inconsistencies in the assertions made to SS by Patient C on 8 April 2016, most notably with regard to the issue of who had dressed her feet. Had Patient C been called to give evidence or a written statement obtained to clarify some of the assertions made to SS, then a reasonable tribunal, properly directed, may have found this evidence sufficiently reliable. However, this was not the case. The comments made by Patient C could not be tested, neither were they corroborated in any meaningful way. In all of these circumstances, the Panel did not consider this hearsay evidence was sufficiently reliable such that it could be attributed any weight, once an appropriate degree of caution had been exercised.

72. Finally, the Panel noted that, in his response to the complaint dated 11 April 2016, the Registrant had denied causing the cuts and asserted that, if he had done so, he would have recorded them in the notes. No such recording was evidenced in the notes exhibited. At that time, the Registrant had suggested that the fragility of Patient C’s skin, due to a dermatological condition, was potentially the cause of the cuts seen on her feet on 8 April 2016. The patient records and the evidence of SS corroborated the existence and potential effect of the dermatological condition leading to cuts or breaks in the skin.

73. In all of these circumstances, and in the absence of any independent evidence of causation, the Panel was satisfied that the evidence in respect of Particular 3(b), when taken at its highest, was so weak and tenuous that no reasonable tribunal, properly directed, could find it proved to the requisite standard. It follows, for the reasons outlined above, that  no reasonable tribunal, properly directed, could find Particulars 3(c) and 3(d) proved to the requisite standard. Accordingly, the Panel found that there was no case to answer in respect of Particular 3 of the Allegation.

74. The Panel considered that there was no case for the Registrant to answer. Accordingly, it determined that the HCPC’s Allegation was not well founded.

Order


 

Notes

No notes available

Hearing History

History of Hearings for Mr Troy L Stephens

Date Panel Hearing type Outcomes / Status
12/03/2018 Conduct and Competence Committee Final Hearing No further action