Dr Paul F J Fleming

Preliminary Matters:

Service

1. Dr Paul Fleming (“the Registrant”) was registered with the HCPC as a Practitioner Psychologist. He currently lives and works in Guam. The Notice of Hearing was sent to him by the HCPTS on 12 October 2018 to his UK address, as provided by the Registrant to the HCPC for registration purposes. The Notice of Hearing was also sent to the Registrant by email on the same date.

2. Mr Millin, on behalf of the HCPC, submitted the Registrant had been served at his registered address and had also received Notice of the hearing by email.

3. The Panel accepted the advice of the Legal Assessor. The Panel noted that the Notice of Hearing identified the correct date, time and venue of the Hearing. A “Proof of Service” confirmation had also been provided dated 12 October 2018. Although the Registrant was living in Guam, he had not updated the HCPC Register with an address for Guam and the Register still contained his UK address. He had clearly received notice of the hearing as he had subsequently made reference to the date in email correspondence. The Panel was therefore satisfied that service had been effected in accordance with the Rules.

The Registrant’s Application for an Adjournment

4. The Registrant had sent an email to Messrs Kingsley Napley Solicitors dated 24 January 2019 in which he had made an application for an adjournment of the substantive hearing of this case listed from 28 January 2019 to 31 January 2019. In his email, the Registrant had stated the following:

“As you may be aware, I am currently based in Guam and was unable to attend the previous hearing due to my immigration status. I am pleased to advise that I have been granted I-94 residential status by the USA Department of Immigration. This means I am free to reside in the USA but if I leave I cannot re-enter the country until a valid H1B Visa Extension has been applied to my passport. My Immigration attorney has advised that such action be processed at the American Embassy in London and an appointment for this to occur has been scheduled for July 2019.
As a result, I am unable to attend the proposed scheduled hearing on 28th January and would therefore request that the hearing be deferred until July 2019 at which time I will be in a position to attend”.

5. Mr Millin reminded the Panel that this case had previously been listed for a substantive hearing starting on 9 July 2018. On that occasion, the hearing had been adjourned. The Registrant had attended the hearing by telephone from Guam and had also requested an adjournment of the proceedings on the basis that he wanted to attend the hearing in person. Mr Millin stated that the reasons for the Registrant’s application to adjourn in July 2018 were that he was based in Guam and was in the middle of renewing his visa application. As such he had been advised that he should not leave the country until the renewal process was complete. He had indicated that his visa application had been submitted a month earlier and would almost certainly be dealt with within the next 6 months. On that occasion there had also been some procedural issues and the Panel had decided to adjourn the hearing.

6. Mr Millin submitted that the HCPC had written to the Registrant on 23 August 2018 and again on 3 September 2018 to request his availability dates but he had not responded. Mr Millin submitted that the Registrant’s visa renewal process should have been completed by January 2019. He submitted the Registrant had not provided any evidence from his Immigration Attorney to support his submissions. He had not communicated with the regulator again until 24 January 2019 to request an adjournment. The HCPC had responded to the Registrant on 24 January 2019 and had offered him the opportunity to attend by video link or telephone but he had not replied. He had also been asked to provide evidence of his residential status and any appointment scheduled to obtain a visa in July 2019.

7. Mr Millin submitted the application to adjourn the hearing should be refused. He submitted every effort had been made to accommodate the Registrant. Witnesses, who had now attended on two occasions, were in attendance ready to give evidence. The allegations related to issues from 2014 and it was now 2019. Furthermore Mr Millin submitted that there was no guarantee that the Registrant’s visa application would be successful and that he would be in the UK in July 2019. He submitted the Panel should refuse the application and proceed in the Registrant’s absence.

8. On questioning from the Panel, Mr Millin confirmed that the two witnesses who had attended to give evidence could also attend the following day which would be the second day of the scheduled hearing, although one of those witnesses was only available until 12pm. The third witness was due to attend on the second day of the hearing, but it was not known whether she could be available on the third day of the hearing if required.

Decision on Adjournment Request (28 January 2019)

9. The Panel accepted the advice of the Legal Assessor. The Panel also considered carefully the HCPTS Practice Note on “Postponement and Adjournment of Proceedings”.

10. The Panel noted that the case had already been adjourned once in July 2018 at which time the Registrant had indicated he anticipated he would be available to attend a hearing 6 months later. The case had then been listed for a final hearing starting on 28 January 2019 and the Respondent had been notified of this on 12 October 2018. The Panel noted that the Registrant had not responded to the HCPC in response to the offer for him to attend the hearing remotely (including by telephone or video link).

11. On considering the documents provided carefully, the Panel noted that the Registrant had two different email addresses – a personal email address (a google account) and a work email address. Both of these email addresses were registered on his HCPC register. The Panel noted that the communications, including the Notice of Hearing dated 12 October 2018 from the HCPC to the Registrant, had only been emailed to the Registrant’s personal email (a google account) and not additionally to his work email address. The Registrant’s work email address was known to the HCPC and registered with the HCPC, alongside his personal email address, both being addresses for the Registrant to be sent emails.

12. Furthermore, the Panel noted that a number of other letters dated 23 August 2018, 03 September 2018 and 21 September 2018 had been sent by the HCPC to the Registrant to his registered personal email address only. There had been no reply from the Registrant to any of these emails.

13. However, when Messrs Kingsley Napley had sent an email to the Registrant’s work email address on 19 January 2019, he had responded within a few days, using the same work email address, on 24 January 2019 stating: “Thank you for your email of 19th January advising me of the above scheduled hearing”. That email had requested an adjournment of the hearing and a copy had been forwarded by Kingsley Napley to the HCPC to respond to on the same day.

14. The HCPC had then, replied to the Registrant’s email of 24 January 2019 on the same day but sent the email to his personal email address, rather than the work address which the Registrant had used to send his own email. In that email the HCPC had reminded the Registrant that he could attend the hearing by video link or telephone and also invited him to provide supporting evidence regarding his residential status and/or appointment to obtain a valid visa scheduled for July 2019. He had not responded but the Panel did not know whether the Registrant had seen that email dated 24 January 2019 from the HCPC.

15. The Panel also noted that on the morning of the hearing, 28 January 2019, at 11.45am the Hearings Officer had sent a further email to the Registrant this time to his work email address, copying the earlier email of 24 January 2019 which had only been sent to his personal email address. The Hearings Officer had reminded the Registrant that he had not responded to the HCPC’s earlier email of 24 January 2019 offering him the opportunity to attend the hearing remotely by either video link or telephone. The email from the Hearings Officer stated:

“We have not received a response to the email as of yet which would assist the Panel greatly in making their decision. I note the email address we have on the system for you differs from the email address that you sent your request from so I have copied the email for you, please see below. Please can you respond to this email, with your response to the email below and could you also provide a number you can be contacted on should the Panel have any questions for you?”

16. The Panel concluded that this email positively invited the Registrant to make further representations which would assist the Panel. It had been sent after the start of the hearing and appeared to give the Registrant the impression that the Panel would wait for his response before making any decision.

17. The Panel was mindful that the Registrant was based in Guam where the time difference was 10 hours ahead of the UK. The Registrant had engaged with the HCPC, albeit to a limited extent. The email sent by the Hearings Officer to the Registrant’s work email address that morning at 11.45am would therefore have reached the Registrant at around 21.45pm Guam time. The Panel had to take into account that it may not have come to his attention late in the evening if he had left work.

18. The Panel noted that the two HCPC witnesses in attendance today were also able to return on the second day of the hearing (29 January 2019). Having taken into account both the interests of the Registrant and the HCPC, the Panel decided that it would be fair to all the parties to allow a short period of time for the Registrant to respond to the email sent to him that morning by the Hearings Officer.

19. The Panel therefore decided to adjourn the hearing until 9.00am on 29 January 2019. On reconvening the Panel would continue to consider the Registrant’s application for an adjournment and any additional communication received from him. The Registrant was advised that he should respond to the email sent to him on 28 January 2019 by the Hearings Officer, by 8.00am (UK time) on 29 January 2019. He was advised that the Panel would reconvene at 9.00am on 29 January 2019 to further consider whether to allow his application for an adjournment of these proceedings.

20. The Registrant was to be informed that, having considered the matter and any response from the Registrant, if the Panel refused the Registrant’s application for an adjournment, it may decide to proceed in his absence.

21. The Panel directed that a copy of its determination be emailed to the Registrant at both his registered personal email address and to his work address that day (28 January 2019).

22. The Panel’s Decision was sent by email to Registrant at both his registered email addresses at 5.00pm on 28 January 2019.

Decision on Adjournment Request (28 January 2019)

23. The Panel reconvened at 9.00am on 29 January 2019. The Panel was informed by the Hearings Officer that no response had been received to either the email sent to him by the Hearings Officer at 11.45am, or to the Decision emailed to him at 5.00pm, the previous day on 28 January 2019. The Panel then continued its deliberations.

24. The Panel had already concluded the Respondent had been properly served with the Notice of Hearing. That Notice had been sent to his registered address and also to one of his registered email addresses too. Indeed he was clearly aware of this hearing as he had applied to adjourn the hearing and his application actually referred to the date of the hearing.

25. The Panel noted that the Registrant had not provided any evidence to support his written submissions concerning his immigration status, even though the HCPC had specifically suggested he should do so.

26. The Registrant had been offered the opportunity to attend the hearing by video link or by telephone but had not responded to this request.

27. The Panel noted that there had been no engagement from the Registrant since July 2018 until he made his application for an adjournment on 24 January 2019. The Registrant had failed to respond to the HCPTS to provide convenient dates for this hearing, taking into account his visa position.

28. The Panel had taken into account the fact that this case was adjourned in July 2018 at the Registrant’s request. At that time he had stated he would be able to attend a hearing in six months’ time, in January 2019. Arrangements had been made by the HCPC to accommodate this request.

29. The Panel noted that in the written submissions received from the Registrant in July 2018, he had provided some response to the allegations which the Panel could take into account. At that time the Registrant had also stated that he had not been provided with an Identification Key to allow him to identify the patients referred to in the allegations. The Panel was satisfied that he had been provided with an Identification Key on 9 July 2018, and he had therefore known the identity of the patients concerned since that date. However he had made no further submissions or provided any other evidence concerning the allegations since that date. His only contact was to make another application to adjourn the hearing.

30. Whilst the Registrant had stated in his second application for an adjournment that he had an appointment in London in July 2019 in relation to his visa extension, the Panel had no other evidence to confirm this. Nor did the Panel have any assurance that the Registrant’s visa application would be concluded by July 2019 and he would be able to attend an adjourned hearing. The HCPTS Practice Note on Postponement and Adjournment of Proceedings made it clear that applications for adjournments must be supported by proper evidence. The Panel therefore expected some supporting documents should have been provided by the Registrant.

31. The Registrant had been offered the option to attend the hearing by telephone or video link. The Panel was satisfied that arrangements could have been made to accommodate the ten hour time difference between Guam and the UK had the Registrant indicated an intention to participate in the hearing. Although the Registrant had attended by telephone for his application to adjourn the hearing in July 2018, he had not done so on this occasion.

32. The Panel was mindful that the HCPC witnesses in this case had now attended twice expecting to give their evidence. The Panel concluded that it was not fair on either the witnesses or the HCPC, or indeed in the public interest, to adjourn this hearing a second time for a further six months or more, depending on the witnesses’ future availability to attend another hearing.

33. The Panel concluded that there was a need for the expeditious disposal of these proceedings. They related to conduct that had taken place some time ago, between 2012 and 2015. It was in the public interest, as well as in the interests of all the parties that the hearing should proceed without further delay. The Panel would take into account the written submissions from the Registrant on the allegations to ensure there was no prejudice to him. The Panel refused the Registrant’s application for an adjournment.

34. Bearing in mind the time difference between Guam and the UK, the Panel was mindful that it was still possible the Registrant may reply to the emails sent to him by the Hearings Officer on 28 January 2019. It was reasonable to expect that the Registrant would be checking his emails to find out whether his application for an adjournment had been granted. The Panel made it clear that should any further communication arrive from the Registrant during the course of the hearing, the Panel would consider any representations made.

Application to Proceed in the Registrant’s Absence

35. Having already decided to refuse the Registrant’s application for an adjournment, the Panel then considered whether it was appropriate to proceed in his absence. The Panel had regard to the HCPTS Practice Note on “Proceeding in the Absence of the Registrant”. The Panel accepted the advice of the Legal Assessor and took into account the submissions already made by Mr Millin.

36. The Panel was mindful that it should exercise due caution in deciding to proceed in the Registrant’s absence. In this case, the Respondent had been offered the opportunity to attend the hearing by video link or telephone and had not taken up that option. The Panel therefore concluded that the Registrant had voluntarily absented himself from these proceedings.

37. The Panel took into account that witnesses had now attended twice expecting to give their evidence on issues dating back to 2012-2015. As already indicated, the case had already been adjourned once on the Registrant’s request and there was no guarantee that he would be able to attend on a future date in July 2019 if the case did not proceed today. It was not known whether the witnesses would be available or willing to attend again at that time. The Registrant had provided some written submissions on the allegations which the Panel would take into account.

38. For all of these reasons, and those expressed in the decision to refuse the Registrant’s application for an adjournment, the Panel concluded it was in the public interest, and in the interests of justice for the case to proceed in the Registrant’s absence.

Application to Amend the Allegation

39. Mr Millin made an application to amend Particulars 2(c) and 3(d) of the Allegation. He submitted the Registrant had been informed of the proposed amendments on 24 January 2018 and had therefore received plenty of notice of the application. He had not objected to the amendments.

40. Mr Millin submitted the proposed amendments would clarify the HCPC case and did not cause unfairness or prejudice to the Registrant. It was proposed to add Particular 2(c)(iv) and amend the wording of Particular 3(d) to reflect the evidence.

41. The Panel accepted the advice of the Legal Assessor. The Panel was satisfied that the amendments sought were reasonable and in the public interest. The Registrant had not objected to them, having had a year’s notice that the application to amend would be made. The Panel granted the application to amend Particular 2(c) to add (iv) and the wording of Particular 3(d).

Registrant’s Application to Rely on his Written Closing Submissions (made on 1 August 2019)

42. The Panel, having heard witness evidence and closing submissions from the HCPC on the Facts, Grounds and Impairment, retired on 30-31 January 2019 to deliberate. The Panel had concluded its determinations on Facts, Grounds and Impairment and was ready to hand down its determination on 1 August 2019 when the case reconvened.

43. On 31 July 2019, the Panel received two further documents from the Registrant called “Closing Submissions – Facts and Grounds” and “Submissions on Impairment”. On 1 August 2019 the Panel heard further submissions from both parties on these documents before handing down its determination. The parties and the Panel had also been provided with a transcript of the hearing on 28-31 January 2019 a few weeks earlier.

44. Ms Tanchel, on behalf of the Registrant, made an application for the Panel to take into account the written submissions made in relation to Facts and Grounds before finalising its determination on those stages. She submitted the written submissions contained the closing submissions that she would have made on behalf of the Registrant in relation to the Facts and Grounds, had they been present on the last occasion. She made it clear that she did not seek to challenge the Panel’s decision not to adjourn the previous hearing and that her closing submissions were a “commentary” on the witness evidence the Panel had already heard. She confirmed this was not “an appeal by the back door”.

45. Ms Tanchel made reference to one of the submissions contained in her written closing submissions on Facts and Grounds dated 30 July 2019, which referred to the decision of the HCPC not to rely on expert evidence. She submitted the Panel should place no weight on the evidence of Witness 1 who was the Investigating Officer in the case, as she was also the Registrant’s Line Manager and therefore not an independent investigator. Ms Tanchel submitted Witness 1 was not, in such circumstances, an expert.

46. Ms Tanchel also made an application for the Panel to hear further submissions and possibly evidence from the Registrant in relation to Impairment, before conclusively making its determination on that stage.

47. Mr Foxsmith, on behalf of the HCPC, submitted the Panel should have fairness to both parties at the forefront of its mind. He did not object to the Panel hearing further submissions on impairment, as the Panel was required to consider current impairment which was forward looking.

48. Mr Foxsmith submitted in terms of the Registrant’s written submissions on Facts and Grounds, the Panel could consider these in light of the findings it had already made and should simply ask the question – did they change the Panel’s view or the legal advice that the Panel had already received.

49. In relation to the submissions on expert evidence, Mr Foxsmith submitted it was not unusual for Investigation Officers to give evidence as witnesses and that evidence should be accepted.

Decision on the Registrant’s Application to Rely on Written Closing Submissions

50. The Panel considered carefully the submissions of both parties and accepted the advice of the Legal Assessor. The Panel also took into account the HCPTS Practice Note “Opinion Evidence, Experts and Assessors”.

51. Whilst the Panel had concluded its determinations on Facts, Grounds and Impairment, those decisions had not yet been handed down. The Panel was mindful that a fair hearing was in the public interest as well as in both parties’ interests.

52. The Panel concluded it would be fair and reasonable to receive the Registrant’s written submissions on Facts and Grounds dated 30 July 2019, given that they would have been made had the Registrant been present at that stage of the proceedings. The Panel accepted the Legal Assessor’s advice that if the application to accept the Registrant’s written submissions was granted, it should revisit the findings it had made, in light of the Registrant’s submissions, and should decide whether they changed the findings it had made or the legal advice given. The Panel was mindful that the written submissions were commenting on the witness evidence it had heard.

53. In relation to the issue of impairment, the Registrant had now attended the hearing with legal representation and the Panel saw this as an opportunity to hear from him, as any decision on impairment was on the Registrant’s current Fitness to Practise. Accordingly, the Panel would not conclude its determination on Impairment until both parties had had the opportunity to address it further.

54. Having made that decision, the Panel retired to consider the Registrant’s written submissions on Facts and Grounds dated 30 July 2019. It then handed down its determination on Facts and Grounds, and dealt with Impairment as a separate stage.

Background:

55. The Registrant was a Band 8C Consultant Clinical Psychologist with NHS Greater Glasgow & Clyde, from 2000 until August 2015. During the time of the concerns raised, the Registrant was based at Auchinlea Community Mental Health Team (“Auchinlea CMHT”) working with adults with moderate to severe and/or complex mental health problems.

56. The Registrant was also a Trainee Supervisor. He supervised Witness 2 who was at the relevant time a trainee Clinical Psychologist. She completed a mini-placement whilst placed under the Registrant’s supervision and concerns were allegedly identified in relation to this supervision.

57. Concerns had also been raised that the Registrant had not followed the correct procedure in reporting the matter to the police when dealing with a service user who had apparently made a disclosure of historic sexual abuse.

58. Following these concerns, Witness 1, who was the Registrant’s Line Manager conducted an internal investigation into the Registrant’s conduct. A formal capability meeting took place on 4 March 2015. The Registrant left Auchinlea CMHT in or around September 2015.

59. Shortly after the Registrant left Auchinlea CMHT, concerns were raised about some of his cases.

Decision on Facts:

60. The Panel heard evidence from three Practitioner Psychologists who were witnesses on behalf of the HCPC - Witness 1, Witness 2 and Witness 3. The Panel took into account all the documents provided as well as the submissions made by Mr Millin and the written submissions dated 3 July 2018 from the Registrant in response to the Particulars of the Allegation. The Panel took into account the Registrant’s written submissions on Facts dated 30 July 2019. The Panel bore in mind that the basis of some of those submissions had not been put to the witnesses. The Panel accepted the advice of the Legal Assessor.

61. Having heard evidence from Witness 1, who was the Registrant’s Line Manager and the Investigation Officer, the Panel found her to be credible, reliable and balanced. Her oral evidence was consistent with her written statement and the documents provided. Witness 1 had been responsible for overseeing the Registrant’s work and had conducted One to One review meetings with him every four to six weeks. The Panel concluded she was an experienced Practitioner Psychologist with extensive experience in the NHS.

62. The Panel took into account the Registrant’s submissions that Witness 1’s evidence should not be accorded any weight as she was not an expert. The Panel noted she had provided a witness statement that contained a Statement of Truth and she had given evidence on oath. Whilst she was the Investigating Officer in the case, the Panel had not relied on the findings of her investigation. Indeed, the Panel analysed the evidence before it independently. The Panel was of the view that Witness 1 had given her evidence as a witness of fact and that was the basis upon which the Panel accepted her evidence. She had not attended to give independent expert evidence and the Panel did not consider her to be an expert. She had simply explained the processes and procedures in place at Auchinlea CMHT during the material time.

63. Witness 2 was a trainee Practitioner Psychologist at the time she completed a mini placement at Auchinlea CMHT under the Registrant’s supervision. The Panel found her to be a credible and reliable witness who provided her evidence in a straightforward manner. She had a clear recollection of events and gave her evidence objectively without seeking to discredit the Registrant. She spoke about her supervision experience with the Registrant and had contrasted it with supervision she had received elsewhere.

64. The Registrant, in his written submissions on Facts dated 30 July 2019 had submitted Witness 2 was the complainant and therefore not independent. The Panel accepted Witness 2’s evidence as a witness of fact and indeed, would have expected to hear from the complainant in a case.

65. Witness 3 had joined the Auchinlea CMHT at the end of August 2015 when the Registrant had resigned and had a week left to work there. She took over the Registrant’s post, and took conduct of some of his caseload. The Panel found Witness 3 to be a credible and reliable witness. She was consistent in her evidence and provided information where she could. Her evidence was fair in that she acknowledged where she was unable to answer a question.

66. The Registrant, in his written submissions, stated that Witness 3 was not independent and did not have expertise in records management. The Panel accepted her evidence as a witness of fact who was familiar with the way that Auchinlea CMHT operated daily, as she was working there.

Particular 1(a)(i) – Found Proved

67. The Panel heard evidence from Witness 2. She stated that on 31 July 2014 Patient 5 disclosed allegations of historic sexual abuse to her during an appointment. She said she thought the patient had provided either the names of two GP Practices or the area in which those practices were located. On the same day Patient 5 made this disclosure to her, Witness 2 stated she had a supervision meeting with the Registrant. Her evidence was that during that supervision she discussed Patient 5’s disclosure with the Registrant. She stated that the Registrant advised her to obtain further information from Patient 5 at the next appointment and obtain the name of the General Practitioner (GP) involved.

68. Witness 2 stated that the Registrant had advised her that if Patient 5 provided the name of the GP, they would have to report the allegations to the police but if Patient 5 did not provide the name and did not want the disclosure to be reported, then they would not need to report the disclosure.

69. The Panel also heard evidence from Witness 1 on this allegation. She confirmed that child protection policies were in place and the Registrant would have had child protection training which would reflect national guidelines. Witness 1 stated that it was not unusual for psychologists within a Community Mental Health Team (CMHT) to come across cases with some historical sexual abuse trauma. She said it was common for patients to report sexual abuse but this scenario, where the alleged perpetrator was a professional who could be a risk to the public, was more rare and exceptional. Witness 1 stated this was an occasion where confidentiality might need to be broken and enquiries needed to be made with the Child Protection Team.

70. Witness 1 stated that the Registrant had had sufficient information from Witness 2 which necessitated a need to act, or at the very least, obtain advice from his own Clinical Supervisor. She was of the view that the Registrant should have sought advice from the local Child Protection Unit. She also said that where abuse was disclosed, clinicians were trained to assume the information was correct. She stated it was not a matter for a clinician to decide not to make a report. It was a matter for the police to deal with.

71. The Registrant in his written response dated 3 July 2018 (“written response”) stated that Patient 5 did not attend the service regularly. He stated:

“…when the disclosure was made (Patient 5) was quite vague about the allegation and could not name the physician or surgery involved”.

This was contrary to the evidence of Witness 2 which the Panel accepted.

72. The Registrant also stated:

“Based on my own experience I did not advise [Witness 2] to report the matter immediately as it was my view that to do so would jeopardize Patient Fives [sic] treatment and instead work should be done both to build up to reporting the matter to the Police and also to ascertain the consistency of Patient Fives [sic] allegations.”

73. The Registrant had accepted he did not advise Witness 2 to report the matter immediately. Witness 1 clearly stated that the guidance relating to allegations of abuse by a medical practitioner were clear and a clinician would actively seek to break the Patient’s confidentiality in such circumstances. She stated it was for the police to make decisions not the clinician. Witness 1 also pointed out that, regardless of whether a GP had retired, that GP could still be practising as a consultant or a locum, and therefore patients could still potentially be at risk.

74. The Registrant in his written submissions on Facts dated 30 July 2019 made reference to GMC Guidance which indicated that if a patient refused to provide consent, disclosure could be justified in the public interest if failure to do so exposed others to a risk. The Registrant further submitted that the GP in question would be between 70 and 80 years of age and the prospect of him posing a risk would be remote. The Panel particularly noted the Registrant’s written submissions that the GP would have been practicing at an advanced age having gone undetected as an abuser for 40 years.

75. Having considered the evidence, the Panel rejected the Registrant’s submissions that the age of the GP was likely to remove any risk to patients. The Panel accepted the evidence of Witness 1 who stated he could still be practising as a locum after retirement. The Panel found Particular 1(a)(i) proved. The Panel was satisfied that the Registrant should have advised Witness 2 during supervision that the matter should be reported, at the very least to the Child Protection Unit, if not to the police.

Particular 1(a)(ii) - Found Proved

76. Witness 2 stated in her evidence that on 7 August 2014, she had attended her next appointment with Patient 5 who had said that he did not want to take the matter any further. Witness 2 stated that she had attended another supervision session that same day with the Registrant, at which she had reported what Patient 5 had said to her. She said that the Registrant had stated if the patient did not want to proceed, there was nothing they could do about it. She said that the Registrant stated the allegations were historic and it was unlikely the GP was still practising.

77. Witness 2 stated she expressed concern about this approach at that meeting and again at subsequent meetings. She stated that from her limited knowledge at that time, which came from a lecture she had attended on risk assessment covering abuse, she thought the incident should be reported to the police to investigate further. In her witness statement she stated:

“I always had Patient 5 and the allegations on my agenda for supervision with Paul Fleming and asked Paul Fleming if we should definitely not do anything about the disclosure. I can recall that Paul Fleming did not seem sure what to do about the allegations but frequently assured me that he would find out what were the correct steps. I then recall that he did not do anything and I began to feel like this process was being unnecessarily drawn out.”

78. Witness 1, in her evidence, stated that Registrant should have recognised the allegation needed to be taken very seriously and acted upon quickly. She stated that when she discussed the matter with the Registrant on 19 December 2014, she felt that he did not understand the principle of seeking to share information in these types of cases.

79. In his written response, the Registrant stated that he did speak with a number of colleagues about the matter and his proposed plan of action but he did not specify the date(s) that he had done so.

80. The Panel noted that the matter was initially reported to the Registrant on or around 31 July 2014. The Panel noted that on 15 September 2014, Witness 2 had spoken to her supervisor and another psychologist about the matter. On advice, she had also discussed it with her tutors that same day. The Panel noted that it was only after Witness 2 had raised her concerns with her tutors and they became involved, that the Registrant arranged a meeting with a Consultant Psychiatrist colleague. That meeting was also attended by Witness 2 and at that meeting the Registrant sought further advice from his colleague.

81. The Panel was satisfied that a delay in seeking advice from 31 July 2014 to around 15 September 2014, which was a period of about six weeks, amounted to not seeking advice in a timely manner. This was particularly pertinent in a case such as this where there was a potential for members of the public to be at risk. The Panel found Particular 1(a)(ii) proved.

Particular 1(b)(i) – Found Proved

82. As set out above, Witness 2 stated that on 15 September 2014 she had raised concerns with her tutors about the advice the Registrant had provided to her in relation to reporting the alleged abuse allegations. Witness 2 stated that following this, her tutor SM had sent an email on 18 September 2014 to the Registrant. This was the same day that Witness 2’s placement with the Registrant had ended. In the email SM had requested Witness 2 be involved in one more session with Patient 5 in order “to take things forward for the patient”.

83. Witness 1 had confirmed in her witness statement that this was indeed the course of action that had been agreed, as the Registrant had not worked with Patient 5 previously and therefore continuing to involve Witness 2 would ensure some continuity.

84. In his written response, the Registrant stated that he and Witness 2 had met Patient 5 on a number of occasions and that he had arranged for Patient 5 to be interviewed by the police regarding the incident at the Clinic in November 2014. He stated he had spoken to the police before and after the interview.

85. The Panel considered Patient 5’s records carefully. These showed that an appointment took place on 4 September 2014 with Witness 2. The next appointment was on 19 November 2014 when the Registrant attended. There were subsequent appointments on 12 March 2015, 30 March 2015 and 14 August 2015 when the Registrant had also attended.

86. The Panel was satisfied that the contemporaneous records showed that it was on 19 November 2014 when the Registrant had first discussed with Patient 5 informing the police of his disclosure. Based on the documents provided, the Panel found Particular 1(b)(i) proved.

Particular 1(b)(ii) - Found Not Proved

87. The Panel heard evidence from Witness 2 stating that she had spoken to her tutor on 17 September 2014 and had been told that she would be involved in a further meeting with Patient 5 and the Registrant. She was informed that this would be taken out of her second year placement time. Witness 2 stated that she sent an email to the Registrant the same day explaining this.

88. On 18 September 2014 Witness 2 stated that she then received an email from her tutor in which he confirmed that it had been agreed that she would attend one further session with Patient 5 and the Registrant to “handover the client” as she knew the patient so well. Witness 2 was also informed that the proposed plan was that a report would be sent to the police, preferably with the patient’s agreement. This was the same day that Witness 2’s tutor (SM) had sent an email to the Registrant discussing this as a possible way forward.

89. The Panel considered carefully the emails that had passed between Witnesses 2 and the Registrant. These were as follows:

• On 2 October 2014 the Registrant emailed Witness 2 asking her to suggest a time for an appointment.
• On 6 October 2014 Witness 2 replied that she would consult her current supervisor and revert to the Registrant with suitable dates.
• On 8 October 2014 the Registrant replied to that email acknowledging Witness 2’s email.
• On 13 October 2014 Witness 2 emailed the Registrant to say that her supervisor was on annual leave and she would be in touch on her supervisor’s return.
• On 15 October 2014 Witness 2 emailed the Registrant offering a number of dates for the next appointment with Patient 5.
• On 21 October 2014 Witness 2 sent a further email chasing up her email of 15 October 2014.
• On 31 October 2014 Witness 2 then emailed her tutor forwarding a copy of her email of 21 October 2014 to the Registrant.
• On 18 November 2014 Witness 2 emailed her tutor again to confirm that the Registrant had replied to her email on 3 November 2014 and they had arranged a meeting on 6 November 2014. She confirmed that at that meeting, they had arranged a meeting with Patient 5 on 19 November 2014.

90. The Panel noted the Registrant’s written response in which he stated that he could not recall the particulars. He stated: “I would have held off on replying until I had developed a coherent, confident course of action to be followed in the case”.

91. The Panel noted the wording of Particular 1(b). The Particular was: “When [Witness 2] reported her concerns to her [tutors] in September 2014, [the Registrant] was instructed to raise the matter with Patient 5 and the Police but ….. (ii) did not respond to emails from [Witness 2] regarding the appointment with Patient 5 until instructed by a senior colleague”.

92. The Panel having considered the contemporaneous emails was satisfied that the Registrant had actively tried to arrange an appointment with Witness 2 and there was no unreasonable delay in responding to her emails after 18 September 2014 when her clinical tutor first became involved. The Panel found Particular 1(b)(ii) not proved.

Particular 2(a)(i) - Found Proved

93. The Panel heard evidence from Witness 3 who had taken over the Registrant’s caseload. She stated that she started working at Auchinlea CMHT a week before the Registrant left and that he had been at work for 2 days during that week. She stated they had held a handover meeting and she said that he had four patients whose cases were ongoing. She stated that, save for those four patients, he had advised her that he had completed all his work. Witness 3 stated that she soon found out that there were other patients where work had not been completed. She said that there were more than four patients who had not been discharged.

94. On questioning, Witness 3 accepted that it could be that the Registrant had discharged patients but not updated the system. She stated it would not surprise her if the administration was not completed when someone was about to leave. Witness 3 confirmed that although they had used an electronic administration system (PIMS) to store reports and letters, the actual case notes were, at that time still stored, in hard copy on files.

95. Witness 3 confirmed that when she joined the CMHT she was due to work from the Registrant’s old office, however because there was a lot to tidy up in his room, another office was made available to her.

96. Witness 1 gave evidence to state that when the Registrant left the CMHT, she was informed by the Service Manager that his room was “in chaos”. She stated that they had found a lot of clinical notes with no names and no date of birth in his room so they could not be reconciled with the relevant file. Witness 1 stated that the Registrant’s room was a “mess” and it “was not in a fit state for a new clinician to move into”. She clarified that the room had only been used by the Registrant.

97. Witness 1 confirmed that she had held supervision sessions with the Registrant in his room but that she had not looked in his drawers at the time, nor was there anything on display to indicate that filing needed to be done.

98. Particular 2(a) related to Patient 1 whose records were missing. Patient 1 had contacted the Administration Team asking why a discharge letter detailing the referral recommendations had not been done.

99. Witness 3 confirmed she had arranged a meeting with Patient 1 and was informed by Patient 1 that the Registrant had told her she would start a course of Cognitive Behavioural Therapy (CBT) with him but this had not happened. Patient 1 told Witness 3 that the Registrant had then suggested CBT elsewhere would be more helpful. Patient 1 told Witness 3 that the Registrant had informed her that he would write a referral letter for CBT. Witness 3 stated that there was no evidence of a referral for CBT but conceded that she did not have the case notes as they were missing. There was nothing on the electronic PIMS system either.

100. Witness 3 stated that Patient 1 was angry and upset. Witness 3 said that she had offered the CBT to Patient 1 herself but Patient 1 wanted to discuss this with her GP first.

101. Witness 3 conceded that the hard copy case notes could have been lost by the Registrant or by the CMHT, or they could have been misfiled. She had asked the Administration Team to look for the notes but they could not be found.

102. Witness 1 in her evidence stated that she was not sure who the Registrant would have referred Patient 1 to for the CBT as the CMHT was the appropriate team. She stated that the only other team that Patient 1 could have been referred to for the CBT was the Primary Care Team but in her view this was not a case which would be referred outside the CMHT due to its complexity.

103. The Registrant in his written response had stated he was unable to identify this particular patient. However, after his written response had been received, he had been provided with an Identification Key in July 2018 but he had not submitted any further observations.

104. In the absence of the case notes being available, the Panel accepted the evidence of Witness 3 and Witness 1. The Panel concluded that, on the balance of probabilities, the Registrant had not made arrangements for community CBT as discussed with Patient 1. He had therefore not managed and/or recorded patient care in an appropriate manner. The Panel found Particular 2(a)(i) proved.

Particular 2(a)(ii) - Found Proved

105. The Panel heard evidence from Witness 3 in which she stated that since the Registrant had not passed Patient 1 to her as an ongoing file during their handover, she assumed that Patient 1 had been discharged. This was reinforced by her conversation with Patient 1 who had also expected a discharge letter to be sent to her GP detailing referral recommendations for CBT.

106. The Panel noted there was an undated contemporaneous report from Witness 3 to the Clinical Practice Director at the University of Glasgow which confirmed what Patient 1 had told her.

107. Witness 3 conceded that she could have contacted Patient 1’s GP to check if a discharge letter had been sent but she had not done so.

108. The Panel noted from Witness 3’s evidence that all letters should have been on the electronic PIMS system and as such, even if the case notes were missing, a discharge letter would have been on the electronic system. There was no such letter on there.

109. The Panel accepted the evidence of Witness 3. The Panel concluded on the balance of probabilities that the Registrant had failed to write a discharge letter to Patient 1’s GP. He had therefore not managed and/or recorded patient care in an appropriate manner. The Panel found Particular 2(a)(ii) proved.

Particular 2(b) - Found Proved

110. This allegation involved Patient 2. The Panel’s attention had been taken to the electronic clinic records for Patient 2 which showed that 35 appointments had taken place between Patient 2 and the Registrant between 3 July 2012 and 13 August 2015. In addition there were also letters from the Registrant to Patient 2 in relation to various appointments which were from the electronic system.

111. Witness 3 confirmed that when she reviewed the case notes, the last recorded entry was 3 July 2012. Witness 3 stated that Patient 2 had been expecting a referral to another organisation, but there was no information about this in the patient’s records.

112. Witness 1 had given evidence stating that the absence of notes was a significant hindrance for ongoing work for patients.

113. The Registrant stated in his written response dated 3 July 2018 that he could not identify Patient 2. He stated that his normal practice would be to take notes during the session with the patient and prepare a summary note at the end of the session. He stated that the hardcopy notes would then be filed at the end of the day with the medical records office. He stated that it appeared the relevant file had been lost in the medical records office which was not uncommon.

114.  This was contrary to what Witness 1 had said. She stated that there was no evidence that the Registrant’s common practice was to prepare a summary note at the end of the session. Witness 1 stated that the Registrant’s notes that were available appeared to have been taken during the Registrant’s session with patients as they contained abbreviations. Witness 1 stated that the practice was that, as the file would be with the clinician he/she would file his/her own notes. Witness 1 stated that the Medical Records office did not file notes for clinicians and there had been no reports of other records being lost in that department. She confirmed no other staff had had problem with records.

115. The Panel having considered all the evidence, was satisfied on the balance of probabilities that the Registrant had left the case file open without recording the notes and/or details of the 35 appointments he had attended. The Panel was satisfied that the Registrant had not managed or recorded patient care in an appropriate manner. The Panel found Particular 2(b)(c) proved.

Particular 2(c)(i) – Found Not Proved

116. This Particular concerned Patient 3. Witness 3 gave evidence that Patient 3 was awaiting a re-test of neuro-psychological testing that had been carried out by the Registrant. The Panel noted that there was a letter dated 10 November 2015 from a Consultant Psychiatrist to Witness 3 which stated that Patient 3 had previously been under the care of the Registrant and had undergone psychometric testing. The letter stated that Patient 3 was still awaiting the outcome of these tests and the patient had been expecting to have been retested 9 months ago. The letter requested Witness 3 to consider assessing Patient 3.

117. The Registrant in his written response confirmed he had been able to recall this case. He stated he had utilised a new test procedure that he had developed as, in his professional opinion, it was the most appropriate one to use in this situation. He stated that he would have recorded the same in the summary case notes.

118. The Panel considered the case notes for Patient 3 and noted that on 1 February 2102, the Registrant had recorded: “testing for pre and post – medication. Slides - fixation point + four locations for [?]”.

119. On 21 October 2014, the Registrant had recorded “Administered stroop test”. Witness 3 in her witness statement accepted that some tests had been done.

120. The Panel had not heard evidence from Witness 3 with an explanation as to what these terms might mean. It was clear to the Panel that the Registrant had recorded some of the names of the psychometric tests materials he had used in the case notes. Accordingly the Panel found Particular 2(c)(i) not proved.

Particular 2(c)(ii) - Found Proved

121. Witness 3 stated in her statement that she could not find the results of the neuropsychological psychometric tests.

122. The Registrant in his written response stated that he was unable to recall whether he had recorded the test results for Patient 3 in the case notes but stated it would have been his usual practice to do so.

123. The Panel considered Patient 3’s case notes carefully and could find no evidence of the results of the psychometric tests being recorded. The Registrant had therefore not managed and/or recorded patient care in an appropriate manner. Accordingly, the Panel found Particular 2(c)(ii) proved.

Particular 2(c)(iii) - Found Proved

124. Witness 1 stated in her witness statement that there was no evidence of an assessment letter or final report on Patient 3’s file.

125. In his written response the Registrant stated that he could not recall whether he had recorded an assessment letter and/or final report but it would be his usual practice to do so.

126. The Panel considered the case notes for Patient 3 carefully and found there was no evidence of an assessment letter or final report for Patient 3. The Panel was satisfied that the Registrant had not recorded an assessment letter or final report in respect of Patient 3. As such the Registrant had failed to manage and/or record patient care in an appropriate manner for Patient 3. The Panel found Particular 2(c)(iii) proved.

Particular 2(c)(iv) - Found Proved

127. The Panel considered this Particular which also concerned Patient 3 and referred to a lack of notes of any consultations with the Patient for approximately 16 appointments.

128. There was no reference either in the allegation or the evidence the Panel had heard from Witness 3 or Witness 1 as to the actual dates of the alleged 16 appointments.

129. Witness 1 in her statement stated that the Registrant had seen Patient 3 on 8 occasions before he started writing records on 1 February 2013. She stated the electronic diary system recorded a total of 20 contacts but only 4 of these were noted in the paper records throughout the time that Patient 3 had seen the Registrant.

130. The Registrant in his written response, referred to his earlier submissions on Particular 2(c)(i) in which he had stated that he would have taken notes during the session and prepared a summary note at the end of the session. Those notes would then be filed at the end of the day at the medical records office, who he submitted appeared to have lost the notes.

131. The Panel considered the contemporaneous records available. The electronic diary system records were not before the Panel. There was a letter to Patient 3 from the Registrant dated 27 July 2012 inviting Patient 3 to attend an appointment on 24 August 2012. There was also a letter to Patient 3 from the CMHT dated 22 February 2012 stating that he had been referred to Clinical Psychology.

132. The case notes for Patient 3 started on 1 February 2012. The Panel concluded that this might be a typographical error as Patient 3 could not have been seen before his referral on 22 February 2012. Furthermore Patient 3’s first appointment was clearly on 24 August 2012. There was no entry in the clinical notes for 24 August 2012, even to record a non-attendance if Patient 3 had not attended.

133. The next letter from the Registrant to Patient 3 invited Patient 3 to an appointment on 1 February 2013. This appointment was recorded, albeit with a typographical error which should have stated 2013 instead of 2012.

134. The case notes contained only 6 entries with details of appointments between Patient 3 and the Registrant dated from 1 February 2012 [sic should be 2013] to 29 October 2014 during the time that the Registrant was working at Auchinlea CMHT.

135. The Panel accepted the evidence of Witness 1 that the electronic diary recorded 20 contacts. As only six entries had been made in case notes, it appeared the Registrant had not made notes of a large number of consultations that had taken place. As such the Registrant had failed to manage and/or record patient care in an appropriate manner for Patient 3. The Panel found Particular 2(c)(iv) proved.

Particular 2(d)(i) - Found Proved

136. This Particular concerned Patient 4 who had required an assessment report to determine whether she would qualify for Learning Disabilities Services.

137. Witness 1 confirmed in her evidence that Patient 4 had had a joint assessment with the Registrant and CJ in June 2015. It had been agreed that as CJ was going on maternity leave, the Registrant would write the report. However Witness 1 stated that he had failed to do this. She stated that the impact of this was that time was wasted for Patient 4 and additional psychologists had subsequently been required to carry out the work again. This meant that Patient 4 unnecessarily had to undergo the tests twice. Witness 1 stated Patient 4 had been very stressed on the second round of testing, as she said that the Registrant had told her she may have autism, but the second set of tests did not reach this conclusion.

138. The Registrant did not deal with this Particular or Patient 4 in his written response.

139. The Panel noted from Patient 4’s records that there was a letter from the CMHT to Patient 4’s GP dated 30 October 2015 which confirmed that the assessment was completed by the Registrant and CJ. That letter also mentioned the Registrant had experienced a period of ill health shortly before leaving Auchinlea CMHT and this had prevented him from completing a report of the assessment results before his departure.

140. Whilst the Panel was mindful that the Registrant may have been experiencing some ill-health at the material time, the Panel found as a fact that he had not completed the assessment report for Patient 4. As a result he had not managed and/or recorded patient care in an appropriate manner. The Panel found Particular 2(d)(i) proved.

Particular 2(d)(ii) - Found Proved

141. Witness 3 gave evidence that a colleague psychologist had telephoned her to explain that Patient 4’s family had been in touch with the service to ask for feedback in relation to the assessment. Witness 1 stated that CJ had to be contacted while she was on maternity leave, in order to establish the general opinion and plan. Witness 1 stated that ultimately CJ had completed the case notes.

142. The Panel considered the case notes and noted there was no reference to the outcome of the assessment in June 2015 being communicated to Patient 4 by the Registrant.

143. The Panel was satisfied that the Registrant had not communicated the outcome of the assessment to Patient 4. He had therefore not managed and/or recorded patient care in an appropriate manner. The Panel found Particular 2(d)(ii) proved.

144. The Panel had taken into account, when considering all of Particular 2, the Registrant’s written submissions dated 30 July 2019 in which he made reference to his employer’s responsibility for ensuring the security and integrity of records and appropriate systems. The Registrant submitted his employers had been unable to locate a number of documents and could not prove that they never existed or that he was responsible for their loss. The Panel, as set out above, heard evidence from both Witness 1 and Witness 3 which it accepted. This referred to the chaotic state of the Registrant’s office when he left and documents that were found in that office which related to patients but had no identifying information to reconcile them with patient files. The Panel also took the view that employers were entitled to rely on their employees to maintain and keep adequate records as required by the HCPC standards.

Particular 3(a) - Found Proved

145. Particular 3(a) related to the Registrant’s role as a supervisor for Witness 2 between April 2014 and 8 September 2014. Witness 2 was a Trainee Clinical Psychologist between 1 October 2013 and 30 September 2016. She worked one day per week on a placement at Auchinlea Resource Centre between 1 April 2014 and September 2014. The Registrant was her Clinical Supervisor during her first year of clinical training. At the same time Witness 2 was also undertaking a Forensic Psychology placement under other supervisors. During the course of her supervision, Witness 2 raised a number of concerns with her tutors and her other supervisors in relation to the supervision she was receiving from the Registrant.

146. Witness 1 gave evidence to confirm that the Registrant had received some Supervisors’ training which was offered by the University of Glasgow. She stated that supervisors were required to maintain training in order to keep their supervisor status. Witness 1 also stated that a Supervisor was a gate keeping role, as it allowed suitable new entrants to join the profession.

147. The Registrant in his written response stated that over the 28 years that he had operated professionally in Clinical Psychology, he had taught thousands of students at undergraduate and graduate levels, in the classroom and through supervision.

148. Witness 2 stated in her evidence she had been allocated 3 cases by the Registrant. Two of those cases were complex cases and the third case was a cognitive assessment case, an area in which she had already met the competencies. Witness 2 stated that she had hoped to be allocated cases that were a little less complex so that she could apply the CBT which she had been trained on in her first year. She also felt the patients in the cases she had been allocated were poor at attending the Clinic for appointments. Although Witness 2 had been a trainee at the material time, she informed the Panel that she had qualified as a Clinical Psychologist in October 2016. She stated she currently supervised trainees herself, and so was able to retrospectively assess the quality of her own supervision by the Registrant. She stated that she now realised that, in the event of not having suitable patients within CMHT, he could have given her cases from the Primary Mental Health Team rather than from the CMHT. These cases wou
ld have been less complex and suitable for a trainee.

149. Witness 1 in her evidence had conceded that it was a common problem to find suitable cases for trainees and CMHT cases were often complex for trainees to deal with. Her evidence was that trainees would only be allocated 3-6 cases as they were on a short placement.

150. The Registrant, in his written observations, stated that attendance rates at the Clinic were generally low and it was difficult to dictate the range of patients who did attend the Clinic. He stated that he had endeavored to provide Witness 2 with the best caseload possible based on patient needs and her experience.

151. The Registrant, in his written submissions dated 30 July 2019, submitted the HCPC had not adduced objective evidence of a requirement for a trainee to be provided with a caseload suitable for her development needs. He submitted the supervisor had no control over this.

152. The Panel noted from the documents provided that there was a “Mini-Placement Outline” which set out the aims, objectives, intended learning outcomes and general terms of the placement. Within this it was stated under the heading “Caseload” that the trainee would build up a caseload including clients across a range of age, ability and presenting problems, to include a minimum of 2 older adult cases. The evidence from Witness 2 was that she had been allocated 3 cases by the Registrant. These consisted of one patient presenting with anxiety and low mood, one patient with autism and perinatal issues and one patient which required a cognitive assessment. Whilst no age was given for these patients, there was no indication in the evidence that these were older adult cases.

153. Whilst the Panel acknowledged there appeared to be difficulties in identifying suitable cases within the CMHT, the Panel found that the Registrant, as an experienced supervisor and a Consultant Psychologist, had not ensured Witness 2 had a caseload suitable for her development needs. The Panel found Particular 3(a) proved.

Particular 3(b)(i) - Found Proved

154. The Panel heard evidence from Witness 2 concerning the induction she had received from the Registrant. Witness 2 stated she had spent a couple of hours with the Registrant but felt that she did not come away knowing about the service. She stated supervision was not discussed during the induction meeting. In her oral evidence Witness 2 stated she was given no housekeeping information, such as how many patients there were or information about the team and staff. She stated the induction was very informal. Witness 2 made reference to being “shown around a camper van” which had been recently purchased by a psychiatrist colleague of the Registrant. In response to questions, Witness 2 stated the psychiatrist had offered to show the Registrant his new camper van and the Registrant had taken Witness 2 with him. This was during her induction and she confirmed it had nothing to do with her placement.

155. Witness 2 stated that of the 7 elements listed in the “Induction Phase” of her Mini-Placement Outline, she had undertaken only 4 of the elements set out. She stated that she had not been familiarised with policies and procedures within the department.

156. The Registrant, in his written submissions, stated that there was no standard induction process in place at the time and, therefore his usual practice was that he would have gone through a considerable volume of introductory material with Witness 2. The Registrant also stated that they had set up a standard weekly supervision session to discuss any issues Witness 2 might have. This appeared to contrast directly with the evidence given by Witness 2 and also the Mini-Placement Outline document dated 3 April 2014 which had been signed by the Registrant and Witness 2.

157. The Registrant, in his written submissions dated 30 July 2019, stated that the induction was required to take place over the first 4-6 weeks of the placement and could not all have been done at a single introductory meeting. Witness 2’s evidence was that she had only done 4 elements of the 7 listed.

158. Having considered all the evidence including the documents provided and Witness 2’s evidence, the Panel concluded that, on the balance of probabilities, the Registrant had not provided a suitable induction for Witness 2. The Panel was mindful that Witness 2 was only on her placement for one day a week for a short period of time and therefore any induction needed to be done in good time to enable Witness 2 to meet her required competencies for that stage of her training. The Panel concluded that the Registrant had not set out risk management strategies which would have been a crucial part of the policies and procedures within the department. The Panel found Particular 3(b)(i) proved.

Particular 3(b)(ii) - Found Proved

159. Witness 2 stated in her evidence to the Panel that during her induction meeting, the Registrant had not agreed a framework for supervision with her. The Registrant, in his written response, stated that at the induction meeting he had set up a standard weekly supervision session.

160. The Registrant, in his written submissions dated 30 July 2019, stated that there was no specific framework for supervision set out as part of the induction process.

161. The Panel carefully considered the “Mini-Placement Outline” document which set out what was expected during the placement. The Panel had already found that the Registrant had not provided a suitable induction or a suitable caseload for Witness 2, nor had he set out the risk management strategies.

162. The Panel accepted Witness 2’s evidence and also took into account the Registrant’s written responses. The Panel was satisfied, on the balance of probabilities, that the Registrant had not agreed a suitable framework for supervision. The Panel found Particular 3(b)(ii) proved.

Particular 3(c) - Found Proved

163. In her evidence, Witness 2 had expressed a number of concerns regarding the structure of her supervision sessions with the Registrant. She stated the supervision sessions took place weekly and lasted an hour and a half. She stated that she attended these sessions with a set agenda and a list of queries on her cases that she wanted to discuss. However she stated that instead of dealing with her queries and caseload, the Registrant had discussed his own cases and they would go “off track”. Witness 2 stated that the cases the Registrant talked about had nothing to do with her own questions and they often ran out of time. She stated that she found the supervision sessions to be “unstructured”.

164. Witness 2 stated that as she was also being supervised elsewhere, she was able to contrast the supervision given by the Registrant with the supervision she had received from others. She stated that her Forensic Supervisor worked in a much more collaborative way and asked her what she wanted to talk about. She said that the available time was properly allocated by her Forensic Supervisor to discuss all relevant matters and she felt she had received advice to deal with her queries. In contrast to this, after her supervision with the Registrant, she had felt frustrated and found she had not covered everything she wanted to discuss. Witness 2 stated that she felt that she had to keep the Registrant “on track” and felt that she should not have had to do this at her stage in her training. Witness 2 stated that the lack of effective supervision felt very stressful to her. Witness 2 confirmed that after she had raised the issue with her tutor and he in turn raised it with the Registrant, the supervision sessions
improved but only for a couple of sessions after which they reverted to how they were previously conducted.

165. Witness 1 in her evidence, stated that it had not been proper for the Registrant to discuss his own cases with Witness 2 and the priority should have been to focus on her cases and how she was meeting her competencies. Witness 1 stated that there was no advice to Supervisors to supplement supervision with a discussion of their own cases. Indeed she said that trainees needed to have experience of their own patients and caseloads, not just hear about them from others experiences. She stated that if trainees did not have this experience, it compromised their placement. Witness 1 accepted that there may be a Learning Point to be shared from a Supervisor’s own cases but discussion of these cases should not supplement the trainee’s caseload.

166. The Registrant stated, in his written response, that there were on occasions difficulties in ensuring an adequate patient caseload for Witness 2. Therefore, if required, during supervision he supplemented discussions of her caseload with a discussion of his own relevant cases. He stated this was for the purpose of educating Witness 2 and preparing her for the types of patients she would be seeing. The Registrant stated it was normal practice for these types of supervision sessions, when the trainee may not have the range of patients in their caseload as one might like.

167. The Registrant, in his written submissions dated 30 July 2019, stated that Witness 2 had accepted his supervision improved for a couple of sessions after it was raised with him, and he pointed out that she had not raised the issue again with him after that. He reminded the Panel that Witness 2 had stated that she had “overly high standards”.

168. The Panel had heard evidence from Witness 2 in which she said that she had felt “a little intimidated” by the Registrant. She also said that after the sessions reverted back to how they were, she had been focused on “pushing more for some resolve to the case with Patient 5 and not getting anywhere again”. In such circumstances, given the Registrant’s seniority and the fact that Witness 2 had already made a complaint to her tutor, the Panel concluded that it was reasonable to assume she would be less likely to do so, because her focus had been on resolving the situation with Patient 5. The Panel was also mindful that this particular issue had not been put to Witness 2 in her evidence.

169. The Panel accepted the evidence of Witness 1 and Witness 2 and concluded that, on the balance of probabilities, the Registrant had not structured his supervision sessions appropriately. He had not ensured Witness 2 was able to discuss all her queries and had instead discussed his own caseload with her rather than addressing her specific concerns. The Panel found Particular 3(c) proved.

Particular 3(d) - Found Not Proved

170. Witness 2 stated in her witness statement that the Registrant had provided feedback after observing her clinical work on approximately 5 occasions, but she stated that the feedback was minimal and not specific. She stated that she came away from her sessions not knowing how to apply the Registrant’s feedback.

171. The Registrant, in his written observations, stated that it was his normal practice to provide verbal feedback to Witness 2 following observations, and to do so in a supporting and encouraging manner to build her confidence in her clinical skills.

172. Whilst the Panel noted that Witness 2 considered the verbal feedback to be brief, Witness 2 also accepted that the Registrant may not have been aware that she wanted more feedback.

173. The Panel concluded that the Registrant had provided feedback to Witness 2 following his observations of her clinical work, indeed Witness 2 had accepted this. Accordingly the Panel found Particular 3(d) not proved.

Particular 3(e) – Found Proved

174. Witness 2 stated in her evidence that the Registrant did not provide any written documents or formal feedback at the end of her placement. She stated that this was something every supervisor was required to complete and that feedback dealt with the numerous competencies she was required to meet at the placement. Witness 2 stated that she felt annoyed and disappointed that, having done the whole placement, she did not get any formal feedback. She said that this left her questioning her own competence and had impacted on her confidence.

175. Witness 2 stated that the Registrant was asked to complete the written documents but he did not reply. She stated that her competencies were signed off by another supervisor in Forensic Psychology.

176. Witness 1 stated that at her meeting with the Registrant on 19 December 2014, the Registrant claimed to have completed Witness 2’s evaluation documents but said he had not sent them. She stated in her oral evidence that the Registrant had produced a paper copy of the assessment to her but she did not know why he had not sent it in. She confirmed that the evaluation should have been done in September 2014 and she was not aware of any difficulty in submitting this.

177. Witness 1 stated that the implications on Witness 2 of the Registrant not sending in the assessment at the end of the placement had been limited as this evaluation was part of a wider placement and Witness 2 had been “signed off” on her competencies by other supervisors. However, she confirmed the evaluation documents were an important part of the process as they allowed a trainee to progress to the next stage of their training. She pointed out that if the documentation was not completed, this sent a message to other trainees that the placement was not important.

178. The Registrant, in his written response, stated he could not say for certain whether he did complete the Evaluation Report and he stated there were some issues with submitting it. He stated his normal practice would have been to submit such a report.

179. The Registrant, in his written submissions dated 30 July 2019, accepted the University had not received placement outcomes documents from him at the end of Witness 2’s placement.

180. The Panel noted that Witness 2’s placement completed on 18 September 2014 as set out in her contemporaneous timeline document. The Panel took into account the evidence of Witness 1 that the Registrant had produced a paper assessment document but this was in December 2014. There was no evidence that this had been submitted in September 2014 when Witness 2’s placement had ended, or soon thereafter. Indeed the Registrant had admitted this in his written submissions. Accordingly, the Panel found Particular 3(e) proved.

Decision on Grounds:

181. The Panel next considered whether the Registrant’s actions in Particulars 1(a)(i), 1(a)(ii), 1(b)(i), 2(a)(i), 2(a)(ii), 2(b), 2(c)(ii), 2(c)(iii), 2(c)(iv), 2(d)(i), 2(d)(ii), 3(a), 3(b)(i), 3(b)(ii), 3(c) and 3(e) amounted to lack of competence and/or misconduct.

182. The Panel, in reaching its decision, took into account the documents, the HCPC submissions from Mr Millin and the Registrant’s written representations. The Panel had regard to the HCPTS Practice Note on “Finding that Fitness to Practise is Impaired”. The Panel accepted the advice of the Legal Assessor. The Panel also took into account the Registrant’s written submissions dated 30 July 2019.

183. Firstly the Panel considered whether the facts proved amounted to a lack of competence. The Panel noted that the facts found proved related to a period between 2012 and 2015, when the Registrant was a Band 8C Consultant Clinical Psychologist. He was a very experienced practitioner who had been in this field for over 28 years and had stated in his written response that he had taught thousands of students over that time.

184. The Registrant had supervised Witness 2 at a time when she was a trainee Clinical Psychologist. The Panel noted in particular that the Registrant had not properly supervised Witness 2. He had failed to provide her with the necessary guidance and advice, had failed to provide suitable cases and had failed to complete/submit necessary documentation.

185. In addition, the Registrant did not follow guidelines for reporting a Service User’s allegation of historic sexual abuse in a timely manner to the police. The Registrant also had not managed and recorded a substantial number of appointments/patient records. The results of this were that there were incomplete records and patient care was not followed through adequately or efficiently. Managing and/or recording patient care are all key tenets of the profession. The fact that the Registrant kept some patient notes appropriately, but not others indicated that he had an awareness of the duties and responsibilities placed on him in this regard.

186. The Panel noted that the Registrant had undergone training in child protection as well as training for performing the role of a supervisor. The Panel had regard to Holton v GMC [2006] EWHC 2960 (Admin), whereby the provision of training, or not, of itself is not relevant.

187. The Panel noted that the issues in relation to Patient 5 related to fundamental patient safeguarding matters. The Registrant himself had referred to the Scottish Government’s National Guidelines for the Protection of Children in his written observations. This demonstrated that he was aware that such guidelines were in place to cover situations like these.

188. The Panel found that the Registrant had breached a number of the HCPC Standards of Conduct, Performance and Ethics (applicable in 2015). He had failed to act in the best interests of service users (Standard 1), he had failed to communicate with service users and other practitioners (Standard 7), he had failed to properly supervise tasks allocated to Witness 2 (Standard 8) and he had failed to keep accurate records (Standard 9).

189. In addition, the Panel found that the Registrant had breached the Standards of Proficiency for Practitioner Psychologists (applicable 2015). His conduct breached:

• Standard 1a.1 - understanding the need to act in the best interests of service users at all times
• Standard 1a.7 – recognizing the need for effective self-management of workload
• Standard 1b.1 – working in partnership with other professionals and service users
• Standard 2b.5 – maintaining records appropriately.

190. The Panel found that the Registrant had been a supervisor of trainees for a long time. He had been a Consultant Clinical Psychologist for many years. He was aware of the standards required of Clinical Psychologists, as he had made reference to meeting some of these in his written submissions. The Panel had been provided with the records of a limited number of his cases and did not consider these were a fair sample of his work. The Panel noted the supervision issues had been raised by only one trainee whereas the Registrant had been a supervisor for many trainees over the years. The Panel concluded this was not a fair sample of the Registrant’s work as a supervisor. In these circumstances, the Panel concluded the facts found proved did not amount to a lack of competence.

191. The Panel next considered whether the facts found proved amounted to misconduct. In Roylance v GMC (No.2) [2000] 1 AC 311 misconduct was described as “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. ….. the professional misconduct must be serious”.

192. In relation to Patient 5 and the supervision of Witness 2, the Panel took into account the case of Nandi v General Medical Council [2004] EWHC2317 (Admin) in which reference was made to Roylance v GMC where the Court held that “the obligation to take responsibility for the care of patients did not cease simply because the [psychologist] is exercising managerial or administrative functions one step removed from direct patient care”. The Panel concluded that although the Registrant was supervising Witness 2, he still had responsibilities towards the patients allocated to her and should have taken appropriate safeguarding measures in relation to Patient 5. Having accepted the role of supervisor, the Registrant also had a responsibility to Witness 2 to provide her with proper supervision so that she could meet her competencies. The Panel had heard about the distress caused to her as a result of her feeling unsupported in her placement.

193. In addition, the Registrant had failed to act in patients’ best interests as he had not maintained and kept proper patient records, or followed through on actions that needed to have been completed. The Panel had heard about the distress and anxiety caused to several patients as a result of this and their care was therefore compromised. This also had repercussions on the Registrant’s colleagues who were left to sort out unresolved issues.

194. The Panel concluded that the Registrant’s conduct taken collectively did fall far short of the standards of conduct expected of registered clinical psychologists, and that falling short was serious. Harm had been caused to patients, indeed one patient was described in the notes as “raging” and another was required to repeat tests that had already been undertaken. Members of the public were also potentially put at risk as a result of the failure to follow safeguarding procedures in a timely manner following Patient 5’s disclosure. The Panel had also noted that Patient 3 had stated he was disappointed that 3 years of work and hope had evaporated, and he felt his trust had been betrayed.

195. The Panel concluded the Registrant’s conduct involved both acts and omissions which amounted to misconduct and found that ground proved.

Decision on Impairment:

196. The Panel next considered whether the Registrant’s current fitness to practise is currently impaired by his misconduct. The Panel carefully considered the HCPC submissions made by both Mr Millin and Mr Foxsmith. The Panel also took into account the “Statement of Reflection” provided by the Registrant and the submissions made on his behalf by Ms Tanchel. The Panel heard and accepted the advice of the Legal Assessor.

197. The Panel had regard to the HCPTS Practice Note on Finding Fitness to Practise is impaired and in reaching its decision the Panel considered both the personal component and the public component.

198. In his written Statement of Reflection, the Registrant had stated he had worked with no issues since these concerns were raised and had maintained high standards of practice over the last four years including appropriate and timely record keeping, constant vigilance for safeguarding and effective, reliable and well-informed supervision. He stated he had taken these proceedings seriously and had felt a degree of shame and humiliation following the Panel’s determination. He referred to his long unblemished career and stated his intention to make every effort to ensure such issues would not occur in his future practice. The Registrant stated that he intended to set out a personal development plan to take into consideration the conduct found proved and he proposed to include advanced training in record-keeping, supervision and updates on safeguarding policy. He stated he would share that plan with the HCPC.

199. The Registrant also stated in his Statement of Reflection that his current work environment was supportive and his clinical thinking was constantly benchmarked against approaches adopted by other colleagues. He stated he understood the issues found proved would have had an impact on service users and supervised students, and stated that he had read with concern the distress his failings had caused to others.

200. Ms Tanchel confirmed that the Registrant was currently working in Guam. He had initially been on a 3 year contract, he had been promoted and his contract had recently been renewed for a further 3 years. She submitted this promotion was evidence that there had been no issues with his current role. She stated that over a 30 year period the Registrant had seen some 35,000 patients and that he did not pose a risk to the public.

201. On questions from the Panel, Ms Tanchel stated that the Registrant’s current role was in a senior position at a university where approximately a quarter of his practice was clinical and the remainder was in tuition and instruction. She stated he devised courses, lectured, mentored undergraduate students and has been instrumental in setting up a research laboratory. Ms Tanchel stated that the Registrant’s current employer had been informed that the Registrant was under investigation by a regulator in the UK but that they were not aware of the specific allegations or the stage in the proceedings. She stated that the person at the Registrant’s employers who could have provided a reference was on annual leave and the Registrant had not wanted to apply for an adjournment in order to obtain a reference. She confirmed that the Registrant was not required to be licensed for his current role but his objective was to proceed to licensing during the next academic year.

202. In relation to the personal development plan, Ms Tanchel submitted this was a personal commitment by the Registrant to comply with a development programme rather than an indication that he conceded his Fitness to Practise was impaired. She stated the Registrant had provided this as a safeguard to ensure he did not find himself in the same position again. Ms Tanchel confirmed that the Registrant had already undertaken training in trauma, child abuse and public protection policies in Guam. She submitted the Registrant’s Fitness to Practise was not currently impaired.

203. The Panel firstly considered the harm caused and the Registrant’s culpability in relation to this. The Panel had already noted there was a potential risk of harm to members of the public by the delay in reporting Patient 5’s concerns. Whilst these related to historic allegations of abuse against a GP, there was a possibility that he could still have been practising, and therefore there was a potential for members of the public to be at risk.

204. The Panel noted that Witness 2 stated that the delay in reporting this historic abuse had also caused Witness 2 much stress and anxiety, as she was worried about a lack of action and any potential risk to the public, particularly since the alleged perpetrator was a health professional, who may have had access to many vulnerable patients. She had lost confidence as a result of her experience on the placement supervised by the Registrant and had felt very stressed as a result of that placement.

205. The Panel found that the absence of patient records did cause harm to the public as some patients had contacted the service to complain about the lack of action and delay in their treatment. The Panel took into account that Patient 3 in particular had been disappointed that 3 years of work and hope in his treatment had evaporated and he felt that his trust had been betrayed. He had been very angry. Patient 3 had been seen by the Registrant on 8 occasions before the Registrant started to write records for this patient in February 2013. In total 20 contacts had been recorded in the electronic diary but only 4 contacts had been recorded in the paper records. The Panel took into account that that patient had been required to undergo neuro-psychlogical tests twice, as the first set of results had not been provided.

206. The Panel also took into account that Patient 1 said that she had trusted the Registrant and she was angry and upset that the Registrant had not done what he said he was going to do. She had therefore been caused harm as well.

207. The Panel took into account that harm had been caused to Patient 2 as the lack of notes and no records of some contacts on that case had hindered meeting Patient 2’s further needs. This had happened over a period of 3 years. There had been 35 contacts with Patient 2 after 3 July 2012 up to 31 August 2015, and although some appointments were cancelled or there had been no attendance, there was no record of any of these.

208. The Panel took into account that the Registrant had failed to write a report to refer Patient 4 for further treatment and this had led to a delay which impacted on this patient’s care.

209. The Panel concluded that the Registrant was culpable as he had had control over his conduct. The Panel had received no evidence to indicate that there were any other issues which may have contributed to his conduct at the material time, other than perhaps a brief period of illness. The issues surrounding the lack of record keeping and the appropriate management of patient care spanned a period of 3 years and were not therefore isolated incidents. Furthermore, the lack of reporting in relation to Patient 5 had occurred over a few months.

210. On the issue of insight, the Panel took into account the content of the Registrant’s Statement of Reflection and his previously long unblemished career. The Panel noted that the Registrant mentioned his shame and humiliation. He also stated that he had understood the impact on service users and supervised students, but he had not elaborated on this any further. He had expressed some insight but in the Panel’s view there was insufficient insight into the actual consequences of his actions. Due to the Registrant’s lack of full insight, the Panel could not conclude there was no risk of repetition.

211. The Panel was concerned that there was no evidence from the Registrant’s current employer. Although the Panel had been told that the relevant person who could have provided a reference was on holiday, the Registrant had known about this hearing for a number of months. The Panel noted that the Registrant was not required to be licensed in Guam. The Panel was also concerned that although it was stated that the Registrant’s employers had been informed of these proceedings, there was no evidence of this.

212. In relation to the training undertaken by the Registrant, he had indicated an intention to submit himself to a personal development plan, which was encouraging. It would have been helpful to the Panel if he had produced this. The Registrant also mentioned training he had undertaken in Guam, but he had not provided any evidence of this. In the absence of supporting documents, the Panel concluded that the Registrant had not evidenced his efforts to remediate.

213. The Panel concluded that, taking into account the number, range and extent of the breaches, the harm caused and the possibility of repetition, together with the Registrant’s lack of insight and remediation, his Fitness to Practise was currently impaired on the personal component.

214. Furthermore, the Panel concluded that there was a potential risk to service users and a need to declare and uphold proper standards of conduct as well as maintain public confidence in the profession. The Registrant’s conduct had caused harm and had impacted on public confidence in the profession. Lack of proper record keeping and management of patient care were fundamental requirements from Clinical Psychologists as was the requirement to follow safeguarding guidelines. Evidence of remediation of those failings had not been provided and therefore a potential risk to the public remained. The Panel concluded that there would be a risk of an adverse impact on public confidence in the profession and in the regulatory process, if a finding of impairment was not made.

215. The Panel found that the Registrant’s current Fitness to Practise is impaired by his misconduct in terms of both the personal component and the wider public component. The Allegation was well founded.

Decision on Sanction:

216. The Panel heard submissions from Ms Tanchel, on behalf of the Registrant, on the issue of sanction. The Panel considered the sanctions available to it in ascending order of severity and had regard to the HCPC’s Sanctions Policy (July 2019). The Panel accepted the advice of the Legal Assessor.

217. The Panel was aware that the function of Fitness to Practise panels is not punitive and that the primary function of any sanction is to address public safety from the perspective of the risk the Registrant may pose to those using or needing his services in the future. In reaching its decision, the Panel must also give appropriate weight to the wider public interest considerations, which include the deterrent effect on other registrants, the reputation of the profession and public confidence in the regulatory process.

218.  The Panel firstly considered the mitigating and aggravating factors in this case. It identified the aggravating factors were as follows:

• The lack of record-keeping and poor patient care had taken place over a period of three years.
• Harm had been caused to patients, a student Clinical Psychologist (whose supervision and well-being was adversely affected during her training) and colleagues who had taken over the Registrant’s cases had been affected.

219. The Panel identified the following mitigating factors:

• The Registrant had held an unblemished professional record for about 30 years prior to these complaints.
• The Registrant had shown some insight and some remorse in that he had referred to his “shame and humiliation” and to the impact on service users and supervised students.
• The Registrant appeared to have undertaken some steps towards remediation although he had not provided evidence of the training he had completed.
• The Registrant had voluntarily indicated that he would submit himself to a personal development plan to be shared with the HCPC.

220. This was a case where the Panel had found that the Registrant had failed to manage and/or record patient care in an appropriate manner in relation to four Service Users over a period of 3 years, causing a delay in their treatment; he had not followed appropriate safeguarding procedures in relation to one Service User thereby potentially placing members of the public at risk; and he had failed to properly supervise a trainee. These were not the standards expected of Clinical Psychologists. Maintaining appropriate records and patient care for Service Users was a fundamental requirement of the profession, as was the necessity to act promptly in relation to safeguarding concerns. Although the Registrant had expressed some insight and remorse, the Panel was not satisfied that he had fully appreciated the adverse consequences of his actions on Service Users, colleagues and the reputation of the profession.

221. The Registrant had engaged to some extent with these proceedings, albeit quite belatedly on each occasion. During the hearing the Panel heard about the Registrant’s determination and willingness to address his failings.

222. The Panel first considered whether to take no further action and was of the view that this would not be sufficient to protect the public, having identified a risk of recurrence and only some efforts at remediation.

223. The Panel also considered mediation and was of the view that it was not appropriate in these circumstances.

224. The Panel next considered a Caution Order. The Indicative Sanctions Policy stated that a Caution may be appropriate where the lapse was isolated or of a minor nature, there was a low risk of recurrence and the Registrant had shown insight and taken remedial action. The Panel had found that these were not isolated but took place over a 3 year period. The Registrant had demonstrated limited insight and had not yet fully remediated his failings. In these circumstances, the Panel was of the view that a Caution would not be an appropriate sanction as it would not address the need for further remediation or the risk of repetition.

225. The Panel next considered a Conditions of Practice Order. The Panel was of the view that the Registrant’s failings were capable of remediation. He had made a commitment to the Panel to resolve matters. The Panel concluded that the Registrant would be capable of safe and effective practice while subject to conditions. Indeed he had agreed to comply with any training requirements and conditions. On the Registrant’s assurances, the Panel was satisfied that the Registrant would comply with any conditions imposed and noted he had already taken some steps towards remediation. The Panel was satisfied that it could formulate conditions that were appropriate, proportionate, realistic and verifiable.

226. The Panel was satisfied that conditions requiring the Registrant to complete appropriate courses in record-keeping and safeguarding would address any risk to the public. It was also satisfied that formulating a personal development plan would assist not only with protecting the public, but also demonstrating that the Registrant had fully remediated. On questioning from the Panel, the Registrant had indicated that he anticipated a period of 12 months would be sufficient for him to comply with any training requirements. The Panel was therefore satisfied that the conditions should be imposed for a period of 12 months as this should be sufficient for the Registrant to address the concerns identified.

227. Accordingly the Panel decided to make a Conditions of Practice Order in the terms set out below for a period of 12 months. This was the appropriate and proportionate sanction, which was sufficient to protect the public and address the wider public interest considerations.

228. The Panel also looked at whether the next sanction of a Suspension Order should be considered but concluded that given that an appropriate Conditions of Practice Order could be formulated to address the risks identified, a Suspension Order was disproportionate and unnecessary.

229. The Panel imposed the below conditions of practice for a period of 12 months.

230. The Panel reminded the Registrant that the Conditions of Practice would be reviewed before their expiry. A future reviewing panel might be assisted by the following information/documents:

• A reflective statement setting out your reflections on the impact of your conduct on service users, colleagues and the public;
• Testimonials (including from your current employer if possible);
• A progress report on your Personal Development Plan.

 

Order: The Registrar is directed to annotate the HCPC Register to show that for a period of 12 months from the date that this Order takes effect (“the Operative Date”), you, Dr Paul F J Fleming, must comply with the following Conditions of Practise:
1. Within 12 months of the Operative Date you must:

(a) satisfactorily complete courses relevant to healthcare professionals in:
• Record-keeping
• Safeguarding and Disclosure

(b) You must forward a copy of confirmation of your completion of these courses to the HCPC within 21 days of completion.

2. You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.

3. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

4. You must inform the following parties that your registration is subject to these conditions:

(i) any organisation or person employing or contracting with you to undertake professional work; and
(ii) any agency you are registered with or apply to be registered with (at the time of application); and
(iii) any prospective employer (at the time of your application).

5. You must formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice:

• Record-keeping
• Safeguarding and Disclosure
• Supervision

6. Within three months of the Operative Date you must forward a copy of your Personal Development Plan to the HCPC.

This order will be reviewed again before its expiry on 30 August 2020.

Interim Order:

1. After announcing its decision on impairment but prior to announcing its decision on sanction, the Panel, at about 4.15pm, informed the Registrant that, should a restrictive sanctions order be imposed by the Panel, the HCPC would be at liberty to apply for an Interim Order and the Registrant would be given an opportunity to address the Panel on whether such an order was necessary.

2. Both parties had indicated that they were content to be informed of the Panel’s decision on sanction that day, with the written reasons to be sent to the parties the following week. The Panel announced its decision on sanction at approximately 5.30pm.

3. Mr Foxsmith then, on behalf of the HCPC, applied for an Interim Order to cover any appeal period. He submitted that such an Interim Order would be consistent with the Panel’s earlier decisions. He submitted that the criteria a Panel had to apply for an Interim
Order at a final hearing was different from the criteria for an Interim Order at an earlier stage of proceedings. He submitted that at a final hearing, the Panel had made findings, found impairment and had imposed a sanction, which were all relevant factors.

4. Ms Tanchel, on behalf of the Registrant, opposed the application for an Interim Order. She submitted that the guidance set out in the HCPTS Practice Note on “Interim Orders” referred to the case of Gupta v GMC [2001] EWHC 631 in which it was stated that panels were required to give notice to registrants of any intention to consider an Interim Order so that registrants had an opportunity to make meaningful representations. Ms Tanchel acknowledged the Panel had given the Registrant notice of this prior to announcing its decision on sanction but submitted notice had not been given at the impairment stage as required by the Practice Note.

5. Ms Tanchel reminded the Panel that the Registrant had not been subject to any Interim Order prior to the final hearing, and therefore no such order had been in place for the last 5 years. She submitted the order was not necessary to safeguard the public.

6. Ms Tanchel referred the Panel to a number of cases. She stated that in the case of Sheikh v General Dental Council [2007] EWHC 2972 (Admin) it was held that an Interim Order was not required on public policy grounds only. She referred to the case of Christou v NMC [2016] EWHC 1947 (Admin) and submitted the Panel should ask itself would an average member of the public be shocked to learn the Registrant was practicing without an Interim Order in place.

7. Ms Tanchel referred to the case of Wallace v Secretary of State for Education [2017] EWHC 109 (Admin) in which it was stated that a formal published finding of misconduct should be regarded as a “considerable sanction” in itself. She also referred the Panel to the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) in which it was stated that if unacceptable professional conduct was made out, publicity was bound to affect the registrant’s professional reputation and that those were “considerable sanctions”.

8. Ms Tanchel submitted that the Panel’s Determination would be published, and the fact of the Order made by the Panel would be in the public domain. She submitted that in itself would be sufficient to address any risk during any appeal period. She submitted it must be necessary to impose an Interim Order to protect patients and as the Registrant had practiced unhindered since 2015, there was no need to impose such an order.

9. The parties’ submissions had concluded by about 6pm. Ms Tanchel had not supplied the Panel with copies of the cases she had referred to. The Panel was mindful that a sanction of conditions of practice had been imposed on the Registrant. The Registrant had informed the Panel that he was working in Guam at the moment and could only be available in the UK to attend any reconvened hearing during the following week. The Panel needed to have sufficient time to give due consideration to the submissions and documents referred in fairness to both parties. Given that, and the Registrant’s assurances to the Panel that he would comply with any conditions of practice, the Panel concluded that a short delay of a few days before it could reconvene to make a determination on the application for an Interim Order was unavoidable and not unreasonable. The possibility of the Registrant working in the UK during this very short time was remote, especially in the context of him having only worked abroad since autumn 2015. Both parties did not object to this course of action and they were both informed that it would not be necessary for them to attend at the reconvened hearing as only a decision on the Interim Order application was outstanding. This could be sent to them by email or they could attend to hear the decision remotely.

10. The Panel reconvened in private for a “panel only day” on 8 August 2019 to conclude its deliberations on the application for an Interim Order.

Decision

11. The Panel considered carefully the submissions it had heard and the case law to which it had been referred. The Panel took into account the HCPTS Practice Note on Interim Orders and it accepted the advice of the Legal Assessor.

12. The Panel was mindful that any sanction imposed did not come into effect until either the expiry of the appeal period (28 days from service of the determination) or, if there was an appeal, on the determination of that appeal. The purpose of any Interim Order at a final hearing where a restrictive sanction was imposed, was to restrict a registrant’s practice during that appeal period.

13. The Panel had already confirmed that the Registrant’s fitness to practice was impaired by his misconduct in terms of both the personal component and the wider public component. The Panel had specifically imposed Conditions of Practice to address shortcomings in the Registrant’s work, address the risks to the public it had identified and to address his lack of full remediation, insight and remorse.

14. Whilst the Panel accepted that the Registrant had been practising without restriction since 2015, it was pertinent that this was in the absence of any findings at a final hearing. Furthermore, the criteria for an Interim Order application at an earlier stage in the process, was quite different from the criteria the Panel was now required to apply at a final hearing.

15. Dealing with the issue of notice of an application being made for an Interim Order at a final hearing, the Panel was satisfied that the Registrant had been given sufficient notice of this and therefore had had sufficient time to make meaningful representations. The Practice Note stated: “Panels should therefore specifically warn the registrant after the impairment stage that an Interim Order might be considered ….” The Panel had made this clear to the Registrant well before announcing its decision on sanction and it was also relevant that the Registrant was legally represented by Counsel who had confirmed she was experienced in fitness to practice proceedings.

16. Additionally, the HCPC had written to the Registrant with the Notice of Hearing on 12 October 2018 and that letter clearly informed the Registrant of the circumstances in which an application for an Interim Order could be made at a final hearing. That letter had been sent to his registered address, and to one of his registered email addresses.

17. The Panel considered the cases that Ms Tanchel had referred to, and concluded that they could all be distinguished from the Registrant’s case for a number of reasons. Sheikh v General Dental Council involved an Interim Order before a final hearing and the registrant in that case was not found to be a risk to the public.

18. The case of Wallace v Secretary of State did not concern an Interim Order at all. The issue of publishing findings was fact specific to that case which involved a regulator where the only sanction available at a final hearing was a “prohibition order”. It was held this sanction should have been balanced against allowing the teacher to continue to work whilst publishing findings as they were highly likely to affect a teacher’s professional reputation. It was stated within the judgment that there had been a high level of public interest in this case and the teacher’s ability to practice had made it a rare case as “there is a combination of exceptional features”. In the Registrant’s case, he was not being deprived of his ability to practice as Conditions of Practice had been imposed.

19. The case of Spencer v General Osteopathic Council also did not involve an Interim Order. It made reference to publicity being bound to affect a registrant’s professional reputation but this was in the context of finding unacceptable professional conduct in one isolated incident. This was quite different from the Registrant’s position.

20. The Panel concluded that, given the nature, extent and seriousness of the misconduct in this case, public confidence in the regulatory process would be undermined if the Registrant were allowed to remain in practice on an unrestricted basis during any appeal period. The Panel was satisfied that an average member of the public would expect an Interim Order to be imposed to cover any appeal period.

21. The Panel therefore determined that an Interim Order was required both to address the risks to the public and otherwise in the public interest.

22. The Panel considered whether an Interim Conditions of Practice Order would be sufficient. The Panel had identified risks which needed to be addressed during this period and had already determined that the identified Conditions of Practice would be sufficient and appropriate. The Panel was therefore satisfied that an Interim Order for the same Conditions of Practice should be imposed for a period of 18 months to cover any appeal period.

23. The Panel imposed the below interim conditions of practice for 18 months.

24. The Panel therefore decided to make an Interim Conditions of Practice Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being 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.

 

History of Hearings for Dr Paul F J Fleming

Date	Panel	Hearing type	Outcomes / Status
01/08/2019	Conduct and Competence Committee	Final Hearing	Conditions of Practice