Mr Stephen Gardiner

Profession: Chiropodist / podiatrist

Registration Number: CH20594

Interim Order: Imposed on 14 Mar 2018

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 08/04/2019 End: 17:00 11/04/2019

Location: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

You are registered as a Chiropodist with the Health and Care Professions Council, and:


1) At a Restoration Hearing on or about 07 June 2017, did not provide relevant information including that:
a) A High Court judgment was entered against you and/or your companies on or about 17 November 2016;
b) between 2011 and 07 June 2017, you were a Director of the ‘The College of Foot Care Professionals Limited’;
c) between 2011 and May 2017 you were a Director of ‘The Society of Foot Care Professionals’;


2) You completed a ‘Readmission application for registration’ form dated 07 June 2017, and did not declare that you had civil proceedings brought against you, when a High Court judgment had been entered against you on or about 17 November 2016.


3) On dates in between 2012 and 2016:

a) you and/or your companies’ used Company A’s original work without the authority to do so, to reproduce a course in Foot Health Practice and related material;
b) you misrepresented Company A’s work as described in particular 3(a), as your and/or your companies’ original work;


4) Your actions as described in particulars 1 -3 were:
a) Misleading; and/or
b) Dishonest.


5) You actions as described in particular 1 – 4 constitute misconduct.


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

 

Finding

Preliminary matters:


Service and Proceeding in Absence:
1. Having heard and accepted the Legal Advice from the Independent Legal Assessor, the Panel was satisfied that the Registrant was properly served with the Notice of Hearing, dated 12 February 2019, according to the HCPC’s procedural Rules (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules). It stated the date, time and venue of the hearing as well as the subject matter of the hearing and it was served at least 28 days before the hearing.


2. Having heard Ms Ryan’s submission, having accepted the Legal Assessor’s advice and having taken into account the HCPC’s Practice Note on Proceeding in Absence of the Registrant, the Panel determined to exercise its discretion to proceed in the absence of the Registrant. The Panel concluded that the HCPC had taken all reasonable steps to serve the Notice of Hearing in accordance with Rule 11. It was clear to the Panel that there has been good service of the Notice of Hearing and that the Registrant had knowledge of the hearing. He stated in a written statement he submitted to the HCPC dated 9 March 2019 that he would not be attending the hearing or be represented and has, thus, voluntarily absented himself from this hearing. Furthermore, he has not applied for an adjournment and the Panel considered it highly unlikely that he would attend even if the matter was to be adjourned. The Panel took into account that witnesses were in attendance and considered the possible effect of any delay on their memories. In balancing the Registrant’s interest with the public interest in conducting an expeditious hearing the Panel concluded that the balance falls on the side of the hearing continuing in the Registrant’s absence.


Amendment of the Particulars of Allegation:
3. The HCPC applied to amend the Particulars of Allegation to move the allegation that the Registrant misled the Restoration Panel in 2017 into Particular 4 from Particular 1. The HCPC submitted that the amendment reflected the factual nature of Allegation 1 and it sensibly joined the misleading allegation to that of the dishonesty allegation in Particular 4, albeit that it ascribed “misleading” to the facts of Particulars of Allegation 1, 2 and 3 and not just to Particular 1. The Panel noted that the Registrant had notice of the amendment in a letter dated 30 November 2018 and he did not raise any objection in his response dated 9 March 2019. As the Registrant had objected to some matters in that letter, the Panel considered that if the Registrant wished to raise any objection to the amendment, he would have done so in his statement of 9 March 2019.


4. In the Panel’s judgement, the move of the word “misleading” did not involve any evidence not previously before the Registrant. He had not objected at a time when he could easily have done so. Hence, the Panel determined that the amendment was not unfair or prejudicial to him. For these reasons, the Panel determined to allow the amendment as there was no injustice in so doing.


5. A further amendment by the HCPC has resulted in it withdrawing the Particular of Allegation 3c) from the case against the Registrant. This was by reason of a lack of evidence to support this Particular of Allegation on the HCPC reviewing the case.


Background:
6. The Registrant had been a registered chiropodist, but was struck off from the HCPC’s register on 18 October 2011 for fraudulently making 8 false claims between 2008 and 2010 to a medical expenses insurer in the sum of £938. It was found that he forged signatures and altered figures and perpetrated the fraud for over a period of 3 years.


7. From approximately July 2011, until the dates of dissolution, the Registrant was a Co-Director, with Person A, of (amongst others) two companies called, respectively, “The College of Foot Health Practitioners Limited” (the College) and “The Society of Foot Health Practitioners” (the Society). The Registrant had been refused membership of the SMAE Institute (SMAE), the UK’s leading training establishment for Foot Health Care Professionals. This was because the Registrant had been struck off in 2011 by the HCPC. After being informed of that, the Registrant started attending SMAE CPD courses and Person A enrolled as a student with SMAE.


8. On 17 November 2016, in the Chancery Division of the High Court, judgment was entered against the Registrant personally, as well as Person A personally and the two companies. The Court held that the Registrant, Person A and his companies were liable for infringing copyright training materials owned and used by SMAE. The Registrant and his companies had illegally used the SMAE material for their own training for their purported Diploma in Foot Health Practice. As a result of the actions of the Defendants in that action, SMAE, lost large sums of money in lost course trainees. The Registrant and his Co-Defendants in that action were ordered to pay damages of £132,908, with an additional sum of aggravated damages of £30,000 because of their conduct during the litigation, as well as interest of £1384.68 and the Claimant’s (SMAE’s) indemnity costs.


9. Mr K, on behalf of SMAE, gave evidence at the proceedings in the High Court. The Judge stated that he was satisfied that the infringement of SMAE’s copyright had been, and continued to be, “flagrant”. The Registrant did not give oral evidence, but Person A, whom the Registrant called as a witness in his Restoration hearing, did. The Judge stated that Person A “did not impress me as a witness of honesty, accuracy or reliability.” By contrast, the Judge stated that he was “impressed by the professionalism, honesty, accuracy and reliability given to me by Dr K.”. He found the witness statements of the Registrant and Person A to be “tenuous in the extreme” and had “no hesitation” in preferring the evidence of Mr K over that of the Registrant and Person A.


10. Costs against the Defendants of £191,558.91 were ordered to be partly paid by an interim payment of £155,000. There was also an extant costs Disclosure Costs Order made against the Defendants in the sum of £12,959.75, the result of the Defendants’ having refused to disclose their documents that were based on the SMAE training documents.


11. The Judgement was handed down on 17 November 2016 and the Order was drawn on 22 November 2016. All sums noted in the 22 November 2016 judgement were to be paid by the Defendants by 1 December 2016.


12. No payment has ever been made by the Defendants in that action, which included the Registrant personally and in his role as a Director of the two companies. Interest on the outstanding debts has accrued since that time.


13. In or about March 2017, SMAE applied to enforce the judgment debt and recover their losses and sought a Final Charging Order on Person A’s house and on shares owned by Person A and the Registrant in a number of companies owned by them. The Registrant and Person A, as Directors of the College Company and Society, had sought voluntary bankruptcy just before the Copyright hearing and they had taken steps to put both companies into Voluntary Liquidation.


14. The Registrant applied to be readmitted to the HCPC register in 2017. At the Restoration hearing on 7 June 2017, despite questioning about the intervening years and the nature of his companies since the striking off matter, the Registrant failed to inform the Restoration Panel about the High Court judgment that had been entered against him on 17 November 2016 and the aftermath. He also failed to declare those civil proceedings and their outcome, on his readmission application form date 07 June 2017 (sic), when applying for Restoration. In addition, Person A gave evidence on the Registrant’s behalf and, also under close questioning from the Panel about the intervening years, did not mention the High Court proceedings, the outcome and the aftermath.


15. The HCPC Panel restored the Registrant to the Register on 16 June 2017. He has been registered with the HCPC as a Podiatrist/Chiropodist since then.


16. The determination of the Panel, dated 16 June 2017, included the following, having summarised the seriousness of the fraud that the Registrant had committed:


Paragraph 14: “Equally, the Panel is persuaded that the Applicant is now remorseful and has insight into his previous misconduct. He has taken remedial steps to lessen his responsibility within the business and thereby reduce the chances of any temptation to repeat any acts of dishonesty. The Panel noted that his misconduct has occurred during a period of financial stress and that the Applicant has said he has no intention to return to running a business in the future.’


17. On 20 June 2017, the SMAE Institute raised with the HCPC its concern about the Registrant that, having been struck off for fraud in 2011 he had been restored to the Register in 2017. SMAE reported that the Registrant, in the intervening years, had a copyright judgment against him personally and as a Co-Director of two companies. SMAE stated that the Registrant had perpetrated further deliberate and systematic acts of dishonesty causing losses to SMAE, as well as practising deception on members of the public. In its Raising a Fitness to Practise Concern application, SMAE stated that the Registrant was now bankrupt and his company was in liquidation. It stated that the Liquidator and Official Receiver were investigating misconduct under the Insolvency Act and other legislation. SMAE stated that if the Registrant was entitled to practise using the restricted titles of Podiatrist and/or Chiropodist pending such enquiries, this would damage the reputation of the profession and the HCPC.


18. The HCPC investigated the matter and determined that had the HCPC Restoration Panel, or any HCPC pre-hearing process of investigation, known of the High Court matters, the Judge’s comments and the aftermath, the Registrant would not necessarily have succeeded in being restored to the Register without further investigation. The HCPC’s case is also that the Registrant knew this and deliberately withheld the information from his Restoration application form and from the Restoration hearing Panel.


19. The HCPC alleges the following:
You are registered as a Chiropodist with the Health and Care Professions Council, and:
1) At a Restoration Hearing on or about 07 June 2017, did not provide relevant information including that:
a) A High Court judgment was entered against you and/or your companies on or about 17 November 2016;
b) between 2011 and 07 June 2017, you were a Director of the ‘The College of Foot Care Professionals Limited’;
c) between 2011 and May 2017 you were a Director of ‘The Society of Foot Care Professionals’;
2) You completed a ‘Readmission application for registration’ form dated 07 June 2017, and did not declare that you had civil proceedings brought against you, when a High Court judgment had been entered against you on or about 17 November 2016.
3) On dates in between 2012 and 2016:
a) you and/or your companies’ used Company A’s original work without the authority to do so, to reproduce a course in Foot Health Practice and related material;
b) you misrepresented Company A’s work as described in particular 3(a), as your and/or your companies’ original work;
4) Your actions as described in particulars 1 -3 were:
a) Misleading; and/or
b) Dishonest.
5) You actions as described in particular 1 – 4 constitute misconduct.
6) By reason of your misconduct, your fitness to practise is impaired.

20. The Panel heard evidence from two of the HCPC witnesses and concluded as follows:


21. DK, Director of Studies at the SMAE Institute, giving evidence of the history of the High Court proceedings and aftermath: the Panel found his evidence was extremely clear, credible and consistent. Although he was employed by SMAE, the Panel found his evidence to be objective and fair. He described the losses to SMAE from the Registrant’s fraud as high. Aside from describing the actual financial loss as considerable, he stated that it was “taking our hard work and trying to make money off it” and he felt that was unfair on Foot Health Diploma students and members of the public, as well as on SMAE. He stated that this was why SMAE was forced to take the copyright infringement legal action that it did in the High Court.


22. RC, at the time of the restoration hearing was an HCPC team leader. He gave evidence in relation to the HCPC’s pre-Restoration process and the hearing itself. The Panel considered his evidence to be clear, credible and consistent. He was able to give an account of what would be expected of an Applicant, when an application from a former Registrant who had been struck off for fraudulent and dishonest misconduct in the past, was made.


23. The Panel noted that two other HCPC witnesses were not called to give evidence. They were AM, the HCPC Registrations Manager, who provided a written statement about the Restoration Application Form and the Restoration hearing; and LD, an HCPC case manager, who also provided a written statement in relation to the organisation of the documents for the Restoration hearing. Although these two witness statements consisted of hearsay evidence, the Panel gave the statements appropriate weight, as the two witnesses had knowledge of the content of their statements. The statements were not disputed and there were no questions apparent to the Panel that they could have asked, had the witnesses been in attendance at the hearing.


24. The Panel also read the written statement from the Registrant, dated 9 March 2019. The Panel noted that he objected to parts of the evidence in the bundle as not being admissible, which the Panel noted had been fairly dealt with by the HCPC, by them withdrawing Particular of Allegation 3c). The Registrant also queried the provenance of the SMAE Raising a Fitness to Practise Concern form dated 20 June 2017 and he also gave an account of what he had been doing since his restoration to the Register in June 2017. In addition within the same document, the Registrant expressed some remorse in relation to his current position. He also offered an apology in his statement but it was limited to an apology for answering only the questions asked by the Restoration panel members. He stated that at the Restoration hearing, he was not asked about his activities since the events and up to the Restoration hearing, and that he had been expressly told by the Legal Assessor at the Restoration hearing to speak only about how he had dealt with the dishonesty that led to his Strike Off. He also stated that he had “repaid all the money claimed against my partner’s health insurance scheme at the time”.


Decision on Facts:
25. In determining the facts of the case, the Panel took into consideration all the written and oral evidence. It also took into account that it is for the HCPC to prove the case on the balance of probabilities and it accepted the Legal Assessor’s advice.


1a) Proved:
26. The Panel accepted the documentary evidence of the High Court Chancery Division, Bristol District Registry Judgement, dated 17 November 2016. This was a decision of His Honour Judge Mccahill QC, sitting as a High Court Judge. He found that the Registrant, as a company Director of the two companies that were also Defendants in this litigation, his Co Director, Person A, and the two companies of which they were Co-Directors, were liable for copyright infringement of training documents produced by the SMAE Institute. The Panel noted and accepted the learned Judge’s comments in his Judgement that he was satisfied that the infringement was “flagrant” and stated that he found the witness statements of the Registrant and Person A, his Co-Defendant, to be “tenuous in the extreme”. The Panel also noted that the learned Judge awarded the SMAE Institute damages of approximately £164,292, including a sum of £30,000 to represent punitive/aggravated damages to demonstrate the Defendants’ conduct in delaying the progress of the litigation and including interest to that date, as well as costs of approximately £191,558, making a total of approximately £355,850.


27. The Panel also accepted the documentary evidence contained in the transcript of the Restoration hearing of 7 June 2017. It was clear that the Registrant did not mention at any time in his evidence, despite questioning of him by the Restoration Panel, the High Court proceedings, the outcome and the aftermath of it. Also, the Panel concluded that his character witness at the Restoration hearing, Person A, had been as involved in the copyright action as the Registrant and despite close questioning of him by the Restoration Panel, he also did not mention at any time in his evidence the High Court proceedings, the outcome and the aftermath of it.


28. The fact that the information was relevant was evidenced by RC, in his oral evidence. The Panel accepted his evidence as clear and consistent. The Panel accepted RC’s evidence that any information relating to how the Registrant had dealt with the dishonesty found in 2011 and which resulted in his removal from the Register, would have been vital to the Restoration Panel to assess if he had the requisite qualities to be permitted to return to the Register. The Panel accepted RC’s evidence that, in omitting the information about the infringement of copyright Judgement against him, the Registrant had not given the complete picture of his conduct in the intervening years. The Panel accepted RC’s evidence that it would not be the duty of a Restoration Panel to ask questions about subject matter of which they had no knowledge. The Panel also accepted the evidence of RC as credible that, as a Registrant who had been struck off the Register for dishonesty in 2011, he should and would have known that he had to comply with the HCPC’s Standards of Conduct, Performance and Ethics, which included that he should act at all times with honesty and integrity. As such, the Registrant would and should have known that it would have been of considerable importance for the Restoration Panel to have knowledge of the infringement of copyright Judgement against him.


1b) Proved:
29. The Panel was satisfied that the documents from Companies House demonstrate that the Registrant was a Director of the College from 29 July 2011 until the date of its dissolution. The date of dissolution is recorded in a print out from Companies House (dated 01 February 2018), as due to take place on 24 February 2018.


30. The Panel was also satisfied that the evidence of RC was clear and credible in relation to the relevance of that information. He stated, and the Panel accepted as reasonable and consistent, that the Restoration Panel ought to have been informed about this directorship when determining if the Registrant had the requisite qualities to be permitted to return to the Register. The Panel accepted RC’s evidence that this was especially pertinent in the Registrant’s case, as his prior role when he was found to have acted dishonestly from 2008 to 2011, involved being a Director of a company.


31. The Panel also accepted that the Registrant, in his oral evidence before the Restoration Panel, had identified stress from that type of role as a contributing factor to his dishonesty that had resulted in his Strike Off from the Register in 2011.


32. The Panel also took into account from the entries in the Companies House documentation that the Registrant had been appointed as a Director to “A Foot Above Limited” from 25 March 2008 until 1 August 2016.


33. The Panel concluded that, from the tenor of the Restoration Panel’s questions, the status of the Registrant as a company director at any time after the Striking Off Order of 2011, including the time before and after 1 August 2016, would have been highly relevant to its decision making as to the Registrant’s propensity to dishonesty when acting as a company director. The Panel considered that, by his answers to the Restoration Panel, the Registrant recognised, and omitted to state, that he had been a Director of the College from 29 July 2011 until the said date of its dissolution.


1c) Proved:
34. The Panel was satisfied that the documents from Companies House demonstrate that the Registrant was a Director of the Society from 29 July 2011 until the date of its dissolution which was 30 May 2017.


35. The Panel was also satisfied that the evidence of RC was clear and credible in relation to the relevance of that information. He stated, and the Panel accepted that as reasonable and consistent, that the Restoration Panel ought to have been informed about this directorship when determining if the Registrant had the requisite qualities to be permitted to return to the Register. The Panel accepted RC’s evidence that this was especially pertinent in the Registrant’s case, as his prior role when he was found to have acted dishonestly from 2008 to 2011, involved being a Director of a company.


36. The Panel also took into account from the entries in the Companies House documentation that the Registrant had been appointed as a Director to “A Foot Above Limited” from 25 March 2008 until 1 August 2016.


37. The Panel concluded that, from the tenor of the Restoration Panel’s questions, the status of the Registrant as a company director at any time after the Striking Off Order of 2011, including the time before and after 1 August 2016, would have been highly relevant to its decision making as to the Registrant’s propensity to dishonesty when acting as a company director. The Panel considered that, by his answers to the Restoration Panel, the Registrant recognised that and omitted to state that he had been a Director of the Society from 29 July 2011 until the date of its dissolution which was 30 May 2017.


2) Proved:
38. The Panel was satisfied that the Registrant failed to tick Section 3 Box 3 on the readmission application form dated 7 June 2017. This section asked the question “have you had civil proceedings (other than divorce / dissolution of marriage or civil partnership) brought against you?”. The Panel accepted the witness statement evidence of AM, in which he highlighted the unticked box on the readmission application form and that the Registrant had signed the “Declarations” section of the form. AM further stated that, in signing the form, the Registrant had confirmed that the information he had provided was correct and that he had declared that he had read and understood it and would comply with the HCPC’s Standards of Conduct, Performance and Ethics (the Standards). The Panel accepted the documentary evidence that there had been civil proceedings against the Registrant, shown by the High Court Order dated 17 November 2016. Hence, the Panel concluded that the Registrant had failed to disclose those civil proceedings in his readmission application form.


3a) Proved:
39. The Panel concluded that the documentary evidence of the copyright infringement order and the judgement of His Honour Judge Mccahill on 17 November 2016 that the Registrant had infringed the SMAE copyright of its training materials, was conclusive proof of the facts of this Particular of Allegation; namely, that the Registrant personally and as a Co-Director of the College and the Society, had used SMAE’s original work, without authority to do so, to reproduce a course in Foot Health Practice and related material. Furthermore, the Panel also accepted the learned Judge’s findings that the infringement was “flagrant” and that the Registrant was engaging in infringement activities throughout and that he knew, and had reasonable grounds to know, that Person A was also engaging in infringing activity throughout.


3b) Proved:
40. The Panel concluded that the documentary evidence of the copyright infringement order and the judgement of His Honour Judge Mccahill on 17 November 2016 that the Registrant had infringed the SMAE copyright of its training materials, was conclusive proof of the facts of this Particular of Allegation; namely, that the Registrant personally and as a Co-Director of the College and the Society had misrepresented SMAE’s original work, without the authority to do so, as his own work/his companies’ own work. Furthermore, the Panel also accepted the learned Judge’s findings that the infringement was “flagrant” and that the Registrant was engaging in infringement activities throughout and that he knew, and had reasonable grounds to know, that Person A was also engaging in infringing activity throughout.


4) Proved overall:
4a) as to Particular of Allegation 1a), 1b), 1c) – Proved:
41. The Panel accepted Ms Ryan’s definition of misleading as giving the wrong idea or impression.


42. The Panel considered that, by his answers to the Restoration Panel, the Registrant recognised that the history of his directorships of the College and the Society between the date of his Striking Off Order and the Restoration hearing date, with the resultant High Court Judgement and Order of 17 November 2016 would inevitably have led to further questions from the Restoration Panel. The Panel accepted the transcript and the High Court Judgement as clear evidence in this regard.


43. By omitting that information to the Restoration Panel on 7 June 2017, the Registrant, through his own evidence, gave a confusing picture of his work status. That status was of prime concern to the Restoration Panel, as evidenced from their line of questions to him and this Panel has concluded that this would have been obvious to the Registrant, who had previously been an HCPC Registrant and had been Struck Off the Register for dishonest misconduct.


44. The Panel concluded that there was no other logical and reasonable conclusion than that the Registrant knew the Restoration Panel would not be impressed by another example of inappropriate conduct in the intervening period in the shape of the copyright infringement findings of the Judge and his Order of 17 November 2017. Hence, the Panel determined that the Registrant misled the Restoration Panel and did so deliberately in relation to Particulars of Allegation 1a), 1b) and 1c).


4a) as to Particular of Allegation 2 – Proved:
45. The Registrant had signed the “Declarations” section of his readmission application form. In signing the form, the Registrant had confirmed that the information he had provided was correct and that he had declared that he had read and understood it and would comply with the HCPC’s Standards. The Registrant was a former Registrant who had been struck off the Register for dishonest misconduct. On 7 June 2017, on his own evidence to the Restoration Panel, the Registrant stated that he had kept up to date with all aspects of HCPC registration, including the contents of the HCPC’s Standards, and that included the duty of a professional registered with the HCPC to be honest, trustworthy and have integrity. On the evidence, it is the Panel’s conclusion that the Registrant had deliberately given the wrong impression to the HCPC on his readmission application form that he had not had any civil proceedings against him, when that was not true, and, thus, in contravention of the HCPC’s Standards.


46. Had he ticked the box correctly, the HCPC would have been duty bound to pursue the matter further, thus opening up the Registrant to further inquiry about the contents of the civil Judgement and the Order made on 17 November 2016. Such was the criticism of him in the Judgement that the Panel concluded that the Registrant deliberately misled the HCPC in order to avoid that discovery. In the Panel’s judgment, the only logical and reasonable conclusion was that the Registrant thought such a discovery would have been detrimental to his readmission application.


4a) as to Particular of Allegation 3a), 3b) – Proved:
47. The Panel concluded that the Registrant’s actions in infringing the copyright of SMAE’s training course materials were misleading, as they gave the wrong idea or impression to the enrolling students that the materials were created by and belonged to the Registrant, Person A and their two companies. In the High Court Judge’s opinion, the Registrant’s infringement was “flagrant” and the Registrant was engaging in infringement activities throughout and that he knew, and had reasonable grounds to know, that Person A was also engaging in infringing activity throughout. The Panel has accepted that evidence and has concluded that there can be no other logical and reasonable conclusion than that the Registrant misled the public deliberately, so as to benefit himself, Person A and their two companies.


4b) as to Particular of Allegation 1a), 1b), 1c) – Proved:
48. The Panel concluded that the only logical and reasonable conclusion for the Registrant’s motivation in deliberately misleading the Restoration Panel on 7 June 2017 by:
• not disclosing the copyright infringement High Court Judgement and Order of 17 November 2016; and
• not disclosing that he was a Director of the College and Society companies between 2011 and the dates of their dissolution,
was to hide from the Restoration Panel the Registrant’s further dishonest infringement activities as a Director of the two companies in the period after his Strike Off in 2011 until the Restoration hearing date. In the Panel’s judgement, the only logical and reasonable conclusion was that this was done to portray himself to the Restoration Panel as a reformed character in respect of his dishonesty in 2008 to 2010 that was the subject of the Striking Off order in 2011. The Panel concluded that the only logical and reasonable conclusion was that this portrayal of himself was to ensure that the Registrant would be readmitted to the Register. The Panel also concluded that this is particularly apposite in the Registrant’s case because he had been a Registrant before 2011 and therefore would have had knowledge of the duty on HCPC professionals to be honest, trustworthy and have integrity and he had been Struck Off for dishonest misconduct in 2011.


49. The Panel could not find any other likely explanation or other type of motivation for the Registrant’s actions, such as any innocent, careless or negligent reasons to act as he did in the hearing. It is not for a Restoration Panel to ask questions in relation to matters of which they had no knowledge and where the only person at that time to supply that information was the Registrant in the witness box. He failed to do so. For these reasons, the Panel rejected as less than probable the Registrant’s response to these Particulars of Allegation that the Panel had an obligation to ask him about the infringement Judgement, Order and his directorships at all material times by direct questions.


50. The Panel determined that on the facts of this case the Registrant’s state of mind was to deliberately mislead the Panel with the intention of being readmitted to the Register. The Panel concluded that this was the Registrant’s motivation because the Restoration Panel had readily readmitted him to the register with comments reflecting his full remediation as to dishonesty.


51. In the circumstances, the Panel concluded that the conduct of the Registrant in respect of Particulars of Allegation 1a), 1b) and 1c) was dishonest by the standards of ordinary decent people.


4b) as to Particular of Allegation 2 – Proved:
52. On the proved facts of Particular of Allegation 2, had the Registrant not deliberately misled the HCPC by failing to declare the High Court infringement proceedings on his readmission application form, the HCPC would have been duty bound to pursue the matter further, thus opening up the Registrant to further inquiry about the contents of the civil Judgement and the Order made on 17 November 2016. Such was the criticism of him in the Judgement that the Panel concluded that the Registrant had deliberately omitted that information in order to avoid that discovery and this was his state of mind at the time.


53. The Panel also concluded that this is particularly apposite in the Registrant’s case because he had been a Registrant before 2011 and therefore would have had knowledge of the duty on HCPC professionals to be honest, trustworthy and have integrity and he had been Struck Off for dishonest misconduct in 2011.


54. In the Panel’s judgment, the only logical and reasonable motivation for his conduct was that the Registrant thought such a discovery would have been detrimental to his readmission application and this was his state of mind at the time. There was no other logical and reasonable explanation that the Panel could find.


55. In the circumstances, the Panel concluded that the conduct of the Registrant in respect of Particular of Allegation 2) was dishonest by the standards of ordinary decent people.


4b) as to Particular of Allegation 3a), 3b) – Proved:
56. In deliberately misleading members of the public by infringing SMAE’s copyright of its training materials, the Panel concluded that the only motivation for the Registrant was to benefit himself and his two companies of which he was a Director at the time. The learned Judge in the copyright infringement judgement described the Registrant’s conduct as flagrant, that the Registrant was engaging in the infringement activities throughout and that he knew that Person A was also engaging in the infringement activities throughout. The Panel concluded that this conduct was highly indicative of the Registrant’s state of mind; namely, that he was deliberately, illegally and flagrantly infringing SMAE’s copyright and allowing his business partner at the time to also do so. In the Panel’s judgment, the Registrant’s motivation in so doing this was to benefit the Registrant and his two companies to the detriment of SMAE. The Panel concluded that this was the only logical and reasonable explanation for the Registrant’s motivation and conduct. The Panel also concluded that this is particularly apposite in the Registrant’s case because he had been a Registrant before 2011 and therefore would have had knowledge of the duty on HCPC professionals to be honest, trustworthy and have integrity and he had been Struck Off for dishonest misconduct in 2011.


57. The Panel could not find any other logical and reasonable explanation for the Registrant’s motivation and conduct.


58. In the circumstances, the Panel concluded that the conduct of the Registrant in respect of Particulars of Allegation 3a) and 3b) was dishonest by the standards of ordinary decent people.


Decision on Grounds:
Misconduct:
59. In reaching its decision on the Grounds, the Panel paid regard to the HCPC’s Standards of Conduct, Performance and Ethics (the Standards). It accepted the Legal Assessor’s advice and exercised its own judgment. The Panel also took into account Ms Ryan’s submission and the Registrant’s written statement dated 9 March 2019.


60. The Panel considered that the conduct of the Registrant in relation to the facts found proved was deplorable. It was a serious falling short of the standards expected of any person, let alone a former Registrant who had been Struck Off for dishonest misconduct and who was applying to be restored to the Register. In the Panel’s judgement, deliberately and dishonestly misleading the Restoration Panel, the HCPC and the public in this way, with the combined motives of benefitting himself, his two companies and his status as a potential registrant, was so serious as to amount not only to misconduct, but misconduct at the top end of the scale. The Panel determined that the Registrant’s conduct fell far short of what would have been proper in the circumstances and that it reflected a continuing, unreformed, deep and profound tendency of the Registrant to dishonesty.


61. The Registrant’s conduct in relation to the facts found proved breached several of the HCPC’s two relevant Standards of Conduct, Performance and Ethics, as follows:
HCPC Standards of Conduct, Performance and Ethics (in place prior to 26 January 2016):
• Standard 3: - You must keep high standards of personal conduct
• Standard 13: - You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.
HCPC Standards of Conduct, Performance and Ethics (adopted from 26 January 2016):
• Standard 9: - Be honest and trustworthy
• Standard 9.1: - You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.


62. For the reasons set out, the Panel determined that the facts found proved amount to misconduct.


Decision on Impairment:
63. In reaching its decision, the Panel took into consideration the HCPC’s Practice Note on Impaired Fitness to Practise. It accepted the Legal Assessor’s advice and took into account Ms Ryan’s submission and the Registrant’s written statement dated 9 March 2019.
64. The Panel concluded that at the time of the events, the Registrant was impaired and not fit to practise. His dishonest misconduct was not an isolated event, as he perpetrated the dishonest acts against SMAE for a period of over 4 years from 2012 to 2016. His dishonest misconduct in relation to his readmission application form and to his Restoration hearing before an HCPC Panel on 7 June 2017 was a flagrant, dishonest and deliberate attempt to become an HCPC Registrant, when he knew that if the HCPC and the Restoration Panel had been provided with all the facts of his copyright infringement High Court case, Judgement and Order, there would be a significant chance that he would not achieve registration as a Chiropodist/Podiatrist.


65. Whilst dishonesty is not always to be synonymous with a finding of impairment, the Panel has concluded in this case that the Registrant’s dishonesty was so flagrant, systematic and invidious that it reaches the top end of the scale of dishonesty.


66. The Panel also considered that, by reason of the Registrant’s past history of dishonest misconduct that resulted in him being Struck Off the Register in 2011, his persistent continuation of this type of dishonest behaviour since 2011 without remission, the dishonest misconduct is likely to be irremediable. In the Panel’s judgement, the risk of repetition is so high that the Panel could not be satisfied that the Registrant could remove himself from his recidivist behaviour in the foreseeable future. The Panel has concluded that the Registrant’s integrity can no longer be relied upon, that he has brought the profession into disrepute and that he has breached several of the fundamental tenets of the profession.


67. In any event, the Panel sought to establish if there has been any remediation in the intervening period to present day, or, if not, if there was any potential for remediation in the immediate future so as to remove any risk to the public and so as to uphold public confidence in the profession and in the regulatory process.


68. The Panel concluded that the Registrant’s dishonest misconduct was to the detriment of SMAE, whose training material were copied and provided to enrolling students, over a considerable period of time. The Panel concluded that the Registrant’s failure to express any regret for his deliberate omissions to the HCPC and to the Restoration Panel and his failure to reform his character and behaviour in the intervening period confirms his attitude to any matters that confront him; namely, to blame others.


69. In his written response, the Registrant blamed the Restoration Panel, the Legal Assessor and the SMAE Institute, as well as the HCPC, as the regulatory body, for making an example of him. He repeated many times that he put no patients or members of the public in danger and that this was a case of “administration issues and poor business management.” He expressly stated that, since his Striking Off the Register, he has “upheld the professional standards within my scope of practice as a non HCPC registered professional in that I have kept the high standards of personal conduct and behaved with integrity. In so doing, my behaviour has not damaged the public’s confidence in myself or the profession.” The Panel noted that the Registrant’s expression of apology and remorse related only to his “actions leading up to the hearing of October 2011”, which was the Striking Off hearing date. There was no expression of regret, remorse or apology for anything related to the facts found proved in this case. He also stated that he had “redeemed” his character.


70. In the Panel’s judgement, the findings of the Panel in this case militates against every declaration in those parts of the Registrant’s written submission. Furthermore, the Registrant did not attend the hearing and this made it impossible to explore any issues with him.


71. In the Panel’s opinion, the matters set out above are a demonstrable example of a total failure of insight on the Registrant’s part and, in fact, they go to show the irremediable nature of the Registrant’s misconduct.


72. The Panel determined that public confidence in the profession, its reputation and in the regulatory process would be severely undermined and the public would not be protected in any way from the Registrant’s dishonesty if the Panel was to find that the Registrant is no longer impaired and is fit to practise.


73. For these reasons, the Panel has concluded that the Registrant’s fitness to practise is impaired.


Decision on Sanction:
74. In reaching its decision on sanction, the Panel took into account the submissions of Ms Ryan and the written statement of the Registrant, dated 9 March 2019. The Panel accepted the Legal Assessor’s advice and paid regard to the HCPC’s Indicative Sanctions Policy. The Panel exercised the principle of proportionality at all times.


75. The Panel noted that sanction should be approached from the least serious first and it considered the sanctions available in ascending order.


76. The Panel commenced its deliberations by identifying the aggravating and mitigating factors in this case, as follows:


Aggravating Factors:
• That the dishonest misconduct was flagrant and systematic;
• That the scale of dishonest misconduct was at the higher end of the scale of dishonesty and was at the top end of seriousness;
• That the Registrant had a previous finding of dishonest misconduct that resulted in him being Struck Off from that part of the HCPC’s Register relating to Podiatrists/Chiropodists in 2011;
• That the Registrant’s dishonest misconduct and his motives for it were driven by financial gain for himself personally and through his two companies;
• That the Registrant’s dishonest misconduct represented a continuing, unreformed and profound tendency to dishonesty that is irremediable;
• That there was no relevant remorse, regret or apology by the Registrant for the dishonest misconduct relating to this case. In his written statement, dated 9 March 2019 for this hearing, the Registrant put forward only expressions of regret, remorse and apology for the historical fraudulent dishonesty of 2008 to 2010, which resulted in the 2011 Striking Off Order, which were irrelevant to the present case;
• That there was, and continues to be, a complete lack of insight by the Registrant into the consequences of his deliberate, dishonest misconduct on the HCPC, his regulatory body, the SMAE Institute and the wider public;
• That the risk of repetition is extremely high.

Mitigating Factors:
• That the Registrant has engaged with this process by his written statement dated 9 March 2019.


77. The Panel first considered taking no action and mediation and rejected these outcomes. The serious nature of the dishonest misconduct found proved was of a high level. If the Panel determined to take no action or impose mediation, it concluded that this would seriously undermine public confidence in the regulatory process and in the profession. Such outcomes would fall far below the level of sanction that the public would expect from the findings made in this serious case of dishonest misconduct at the top end of the scale of dishonesty. The Registrant was identified in the Panel’s decisions on Grounds and Impairment as a recidivist in relation to his continuing and persistent dishonesty and the public would expect a proportionate sanction to meet this behaviour. In the Panel’s judgement, taking no action or mediation was severely disproportionate to the level of seriousness of this case.


78. The Panel next considered imposing a Caution Order and rejected this sanction. The Panel noted the aggravating and mitigating factors set out above and concluded that the aggravating factors far outweighed the mitigating factors. As such, the Panel concluded that the measure of sanction should fit the matters found proved, which were found by this Panel to be at the higher end of the scale of dishonesty. The Panel concluded that a Caution Order would not be sufficiently proportionate to represent that high level of seriousness.


79. The Panel has already concluded that there was no realistic chance of the Registrant attaining any insight and complete remediation in the foreseeable future.


80. The Panel noted that the Registrant has provided no remediation evidence and, in the Panel’s opinion, he has displayed only evasive and unhelpful comments in his written statement for this hearing, casting blame on many, but accepting none himself for the dishonest misconduct. There was no genuine and relevant regret, remorse or apology by the Registrant for the matters pertaining to this case.


81. The Panel concluded that, by reason of the Registrant’s dishonest misconduct in relation to the Restoration hearing, the Restoration Panel had been deceived by the Registrant’s omissions, concluding, as it did with complimentary and encouraging words, that the Registrant had remediated his former dishonest misconduct. In fact, the Registrant had knowingly and deliberately perpetrated a copyright infringement during the intervening years after his Strike Off and knowingly, deliberately and dishonestly had failed to inform the HCPC and the Restoration Panel about that in order to achieve readmission to the Register, in which he was successful.


82. For these reasons, the Panel concluded that a member of the public informed of these serious matters would not expect any sanction such as a Caution Order to be imposed in this case, so as to allow the Registrant to return to work immediately, unsupervised, and continuing to pose a risk to the public.


83. The Panel next considered a Conditions of Practice Order and rejected this. There were no allegations in this case that involved the Registrant’s clinical practice, where conditions could be appropriate and proportionate. The Panel noted that it is not impossible to impose a Conditions of Practice Order in certain types of dishonesty cases. However, in the Panel’s judgement, the level of the seriousness of the Registrant’s dishonest misconduct in this case was so high, that full and proper remediation could not be met at this stage by a Conditions of Practice Order.


84. The Panel next considered imposing a Suspension Order and rejected this. This case concerned the Registrant’s deliberate, dishonest misconduct perpetrated against a Restoration Panel of the HCPC, the Registrant’s then-former regulatory body, the HCPC and the SMAE Institute, a notable and respected training establishment for Foot Health Care professionals. The Registrant committed the dishonest misconduct at a time when he was trying to be re-admitted back onto the HCPC’s Chiropody/Podiatry part of the Register. He had experience of how his regulatory body dealt with dishonest practitioners from his Striking Off Order of 2011 for dishonest misconduct, yet he continued to perpetrate a false picture of full remediation of his dishonesty to the HCPC and the Restoration Panel. In the Panel’s judgment, the Registrant’s motivation to obtain benefit in the form of financial gain was shown by the Registrant’s past history of dishonesty, which motivation continued throughout 2012 to 2016. It was therefore repeated by his dishonest misconduct in infringing SMAE’s copyright, this time not just for the benefit of himself but also for his two companies, as well as Person A. This, in turn, was compounded by his deliberate, dishonest behaviour before the HCPC’s Restoration Panel and when completing the re-admission application form for the HCPC hearing.


85. It is clear to the Panel that this Registrant has committed acts of deliberate, dishonest misconduct that puts the Registrant’s acts and omissions at the top end of the range of seriousness. It is equally clear to the Panel that the risk of repetition is extremely high, as the Registrant continued to perpetrate dishonesty in his actions and omissions almost seamlessly after his Striking Off Order in 2011 to the Restoration hearing date of 7 June 2017.


86. In the Panel’s judgement, there is little or no likelihood that this Registrant will ever be willing or able to achieve full remediation of his dishonest behaviour, so as to provide the wider public with sufficient confidence that his acts and omissions will no longer undermine public confidence in the profession and undermine the reputation of the profession. The Panel concluded that the Registrant had, and continues to have, no insight in any form into the matters before this Panel, as evidenced by his written statement for this hearing. The Panel has concluded that, by reason of his overall dishonesty in this case and in the previous case resulting in his being struck off, and by his persistent and deliberate concealment behaviour, the Registrant is unlikely to achieve any genuine and reliable insight in the foreseeable future. In addition, the Panel concluded that the Registrant has displayed no relevant regret, apology or remorse.


87. In the Panel’s judgement, the nature and gravity of the Registrant’s dishonest misconduct and his impaired fitness to practise are such that any lesser sanction than a Striking Off Order would lack the deterrent effect now required in this case and would continue to undermine public confidence in the profession and in the regulatory process.


88. For these reasons, the Panel has determined that there is no other way to uphold public confidence in the profession, its reputation and in the regulatory process than to impose the sanction of a Striking Off Order.

Order

That the Registrar is directed to strike the name of Mr Stephen Gardiner from the Register on the date this order comes into effect.

Notes

Right of Appeal:
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health and Social Work Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

European alert mechanism:
In accordance with Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015, the HCPC will inform the competent authorities in all other EEA States that your right to practise has been prohibited.
You may appeal to the County Court against the HCPC’s decision to do so. Any appeal must be made within 28 days of the date when this notice is served on you. This right of appeal is separate from your right to appeal against the decision and order of the Panel.

Application for an Interim Order:


Proceeding In Absence for an Interim order application:
1) The Panel was satisfied that the Registrant was properly served with the Notice of Hearing, dated 12 February 2019, according to the HCPC’s Rules. The Notice letter stated the date, time and venue of the hearing as well as the subject matter of the hearing, including that an Interim Order may be imposed at the end of the hearing to protect the appeal notice period or the appeal period, if one is taken up by the Registrant. The Notice letter was served at least 28 days before the hearing.


2) In reaching its decision, the Panel took into account Ms Ryan’s submission. It accepted the Legal Assessor’s advice and paid regard to the HCPC’s Practice Note on Proceeding in Absence of the Registrant.


3) The Panel concluded that the HCPC had taken all reasonable steps serve the Notice of Hearing in accordance with Rule 11 of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules). It was clear to the Panel that there has been good service of the Notice of Hearing and that the Registrant had knowledge of the hearing. He stated in a written statement he submitted to the HCPC dated 9 March 2019 that he would not be attending the hearing or be represented and has, thus, voluntarily absented himself from this hearing. In addition, the Panel noted that the Registrant, in his written statement, did not make any comment or object to the principle of an Interim Order application being made at the end of the hearing.


4) The Panel concluded that the importance of protecting the public and in upholding the wider public interest in hearing an Interim Order application, after the sanction in this serious case has been imposed, outweighed any interests of Mr Gardiner, where he had expressly stated that he would not be attending this hearing.
5) For these reasons, the Panel determined that the Interim Order application shall proceed in the absence of the Registrant.


Interim Order decision:
6) The Panel took into consideration the submission of Ms Ryan and accepted the Legal Assessor’s advice. The Panel also paid regard to the HCPC’s Practice Note on Interim Orders.


7) This Interim Order application is one sought by the HCPC after sanction so as to cover the appeal notice period or an appeal if the Registrant takes up an appeal, whichever period is the longer.


8) The Panel has made a determination in this case against the Registrant and concluded that the dishonest misconduct perpetrated by the Registrant in the case was sufficiently serious to attract the sanction of a Striking Off Order and the Panel has given full reasons.


9) The Panel noted that an Interim Order should only be imposed if it is deemed necessary to protect the public or is otherwise in the public interest or in the interests of the Registrant himself.


10) The Panel considered that such was the serious nature of the matters found proved against the Registrant, as represented by the Panel’s decision to impose a Striking Off Order on the Registrant, the wider public interest would be severely undermined if the public was not protected from the Registrant’s persistent dishonesty. That protection, in the Panel’s judgement, should commence immediately after sanction, so as to achieve continuity with the decisions made by the Panel in this case and to reflect the need to protect the public and to uphold public confidence in the profession and in the regulatory process as soon as possible. The Panel determined that this principle should be adopted, even in any intervening period for an appeal to be commenced (28 days) or in the period before any appeal is disposed of. That latter period can be for many months as the Courts can take time to hear appeals.


11) Hence, on the grounds of protection of the public and the wider public interest being upheld, the Panel has determined to impose an Interim Order for a period of 18 months to cover the appeal notice period or resolution of any appeal, whichever the longer period.


12) The Panel next considered the nature of the Interim Order and determined that it must be proportionate and appropriate and it must match the sanction in the case, so as to obtain consistency. In this serious case, for the reasons given in the substantive decision, it is clear to the Panel that an Interim Suspension Order is necessary for public protection and is otherwise in the public interest. In addition, the Panel also concluded that the type of Interim Order closest in nature to a Striking Off Order is an Interim Suspension Order, rather than an Interim Conditions of Practice Order, which would not be suitable, consistent or proportionate, as it differs so widely from a Striking Off Order.


Interim Order:
The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

 

Hearing History

History of Hearings for Mr Stephen Gardiner

Date Panel Hearing type Outcomes / Status
08/04/2019 Conduct and Competence Committee Final Hearing Struck off