Mr David Enstone

Profession: Physiotherapist

Registration Number: PH93423

Hearing Type: Review Hearing

Date and Time of hearing: 09:00 14/09/2018 End: 12:00 14/09/2018

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

Panel: Health Committee
Outcome: Struck off

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Allegation

By reason of your health, your fitness to practise as a Physiotherapist is impaired.

Finding

Preliminary matters
Service
1. The Panel was satisfied that notice of today’s hearing had been served on the Registrant at his home address.

Proceeding in absence
2. The Registrant did not appear nor was he represented. He did not attended the original final hearing on 28-30 September 2015 or the first review hearing in September 2016 and the last review in October 2017.

3. On behalf of the HCPC, Ms Simpson applied for the hearing to be conducted in the absence of the Registrant on the basis that the Registrant had been notified of the date, time and location of the hearing at his registered address. Ms Simpson submitted that it was in the public interest for the hearing to proceed expeditiously.

4. Having considered the HCPTS Practice Note on Proceeding in  Absence, and the advice of the Legal Assessor, the Panel was satisfied that the Registrant had received reasonable notice of today’s hearing. The Registrant had not applied for an adjournment. There was no indication that he would attend at a later date if today’s hearing were to be adjourned. The Panel noted the overriding public interest in dealing with matters in a timely manner and that this was a mandatory review. In balancing the Registrant’s interest and the public interest, the Panel decided that the matter should be heard in the absence of the Registrant.

Hearing in Private
5. Ms Simpson for the HCPC applied for the entirety of the hearing to be held in private on the basis that the evidence concerned the health of the Registrant.

6. The Panel accepted the advice of the Legal Assessor that Rule 10(1)  of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 permitted evidence relating to the Registrant’s health to be heard in private for the protection of his private life. The Panel had in mind the principle that all hearings should be held in public whenever possible, subject to exceptional cases where the interests of justice or the protection of the private life of the Registrant or a witness was of greater importance.

7. In this case, the whole focus of the hearing was on the health of the Registrant and how his condition affects his ability to work. The Panel considered whether the protection of his privacy could be achieved by sitting for only part of the hearing in private, but concluded that it would be impractical to conduct any part of this hearing in public because the Registrant’s personal health matters were so integral to the evidence and the issues of impairment and/or sanction. The Panel therefore concluded that the entirety of the hearing should be held in private in order to protect the private life of the Registrant.

Background
8. The Registrant qualified as a Physiotherapist in 2009, following a career in the police, and was employed by the Southport and Ormskirk NHS Trust as a Band 2 Bank Therapy Assistant in July 2011. He was made a Band 5 Physiotherapist in October 2012. His employment was terminated on 29 November 2013 on the grounds of medical issues.

9. The Registrant did not appear and nor was he represented before the Health Committee of the HCPC at a final hearing in 2015. The Panel at that hearing heard evidence from an independent Dr. Fuller details  of the Registrant’s condition are set out in the written decision of the Panel at the final hearing.

10. The Panel at the final hearing found that the Registrant’s fitness to practise was impaired by reason of his health condition. The nature of his condition was so severe that it would adversely affect his work with colleagues and service users. The Registrant had failed to accept his health condition or to obtain treatment.

11. The panel, at that hearing, considered the personal component in relation to the Registrant’s own practice and any evidence of insight and the public component in relation to the protection of service users and the need to declare and uphold proper professional standards. The Registrant was found to pose a risk of harm to those in his care. There was no evidence of insight or remediation. Fitness to practise was also impaired on public grounds, namely for the protection of the public and maintaining public confidence in the profession. The Panel at the final hearing imposed a Suspension Order of 12 months. The case was too serious for any lesser order.

Decision
12. The Panel first considered whether the Registrant’s fitness to practise is currently impaired and if so, to then consider what if any sanction should be imposed upon his registration. The Panel had regard to the HCPTS Practice Note on Impairment and the Indicative Sanctions Policy (ISP). The Panel accepted the advice of the Legal Assessor.

13. In considering the personal component of impairment the Panel noted that the Registrant had provided no evidence at all in respect of his identified medical condition. There was no evidence of any past or current treatment and the Panel noted that the Registrant had refused to see the medical professional instructed to report on him before the last review. The Panel therefore concluded that the Registrant’s fitness to practise remained impaired on personal grounds, namely his health condition, the absence of any insight and the consequent risk to service users.

14. In respect of the public component of impairment the Panel was satisfied that a finding of current impairment was necessary in order to maintain public confidence in the profession and the regulatory process.

Sanction
15. The nature of the health concerns identified are too serious to make no order or to impose a Caution Order as neither would provide sufficient public protection. A Conditions of Practise Order is neither verifiable nor workable as the Registrant has ceased all engagement with the HCPC.

16. The Panel went on to consider whether a further period of suspension would be appropriate and proportionate. It noted the observation of the October 2017 panel that any such extension would allow time for the limited prospect that the Registrant’s condition might improve if he were to start treatment for his disorder. Unfortunately, the Registrant has provided no information whatsoever in respect of any treatment.

17. The Panel took particular note of paragraph 41 of the ISP which states: “if the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option.” In the Panel’s judgement this is such a case.

18. The Panel also had regard to paragraph 48 of the ISP which states: “Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. A registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate.”

19. The Panel is satisfied that the Registrant has demonstrated no insight into his health problems and has ceased engagement with the HCPC and the regulatory process. In all the circumstances, the Panel determined that the only appropriate and proportionate sanction would be one of strike off.

Order

That the Registrar is directed to strike the name of Mr David Enstone from the Register on the date this Order comes into effect.

Notes

The order imposed today will apply from 28 October 2018.

Hearing History

History of Hearings for Mr David Enstone

Date Panel Hearing type Outcomes / Status
14/09/2018 Health Committee Review Hearing Struck off
25/10/2017 Health Committee Review Hearing Suspended
22/09/2016 Health Committee Review Hearing Suspended
16/07/2015 Health Committee Interim Order Review Interim Suspension
27/04/2015 Health Committee Interim Order Review Interim Suspension
05/11/2014 Health Committee Interim Order Application Interim Suspension