Mr Mark G Browes

Profession: Physiotherapist

Registration Number: PH52714

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 30/08/2019 End: 17:00 30/08/2019

Location: Avonmouth House, 6 Avonmouth Street, London, SE1 6NX

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

Whilst registered as a Physiotherapist, you:

  1. Prepared a report stating that you are not associated with any person who has provided treatment to that patient when this was not the case, in respect of:
    a) Patient A dated 24 December 2016
  2. The matters set out at paragraph 1 were dishonest.
  3. The matters set out in paragraphs 1-2 constitute misconduct.
  4. By reason of that misconduct, your fitness to practise is impaired. The reasons

Finding

Background
1. The Registrant is a registered Physiotherapist. At the time of the Allegation, he was a director of two companies - 10 Bridge Physio Limited and 10 Bridge Clinic Limited. The Registrant was also, via a company called Medco, involved in the examination of people who had suffered injuries in road traffic accidents. They were assessed to see if treatment was required as part of a Medico legal report for the insurance company. If treatment was recommended, the Registrant would initially assess the patient, and on occasions would reassess following treatment and submit a second medico- legal report.
2. On 8 September 2016 the Registrant prepared a report for Patient A and diagnosed a whiplash injury. He recomended a course of physiotherapy. On 24 December 2016 the Registrant prepared a second report which stated that the whiplash symptoms were now manageable. The Registrant confirmed that in compiling his second medico-legal report he had considered the physiotherapy report of HE. He signed a declaration that he was not “associated with any person who had provided treatment” and that the report was independent.
3. On 13 June 2017, an employee of an insurance company involved in Patient A’s claim for compensation discovered that Patient A’s treatment had been provided by HE, an employee of 10 Bridge Physio Limited. It is alleged by the HCPC that the Registrant therefore made a false declaration in his report being a director of and employer at 10 Bridge Physio Limited. The insurance company made a referral to the HCPC on 13 June 2017 and the Registrant was made aware of the referral on 16 May 2018.
4. The Registrant admitted Particular 1(a) and denied Particular 2 as to dishonesty.
Witness 1 - NT
5. NT is a Technical Consultant at Ageas Insurance specialising in road traffic claims.
6. NT confirmed he had received a medico-legal report from the Registrant. He explained his colleague had noted that the report was prepared by HE who was a physiotherapist and employee of 10 Bridge Physio Limited.
7. NT made the referral to the HCPC and said he considered the Registrant had made a false declaration on the report. NT said that the Registrant had stated he was not associated with any person who had provided treatment, and that appeared to be incorrect.
8. NT said his concern, and his reason for the referral to the HCPC, was that this report would go before a Judge to assess damages, and that he wanted to make a stand on this occasion. If the report contained an untruth that would shed doubt on the evidence. The declaration also contravened the Civil Procedure Rules for pre-action settlement of claims. He said this states that the author of the medico-legal report and the treatment provider should not be linked. If they are, then report fees are disallowed, as happened here.
9.  NT told the Panel that he had made no contact with the Registrant during or after considering his report and, so far as he was aware, neither had any of his colleagues at the insurance company. He said that he communicated with the claimant’s solicitors, not with the Registrant directly, using the”portal” designed to settle claims. He confirmed that the physiotherapy report was accepted by the Judge.
10. NT said that the pre-action protocol was designed to ensure the independence of the medical reports provided to the court.
11. NT stated that the need for independence should be common knowledge by clinicians involved in writing medico-legal reports, but it may not have been some years ago. He understood that training was given to all providers of Medco medico-legal reports about the need for independence, but did not know exactly what that training involved. NT confirmed that a medico-legal report was a legal document presented to the Judge to decide on damages.
12. The Panel was referred to the Civil Procedure Rules (CPR) 1998, the “Pre-Action Protocol of Low Value Personal Injury Claims in Road Traffic Accidents from 31 July 2013” (“the Protocol”). Rule 10 states that an author of a medico-legal report must not be “associated” with any person who provided the treatment, except in exceptional circumstances. He agreed that a stated aim of the protocol was the independence of the medico-legal report provided.
13. NT stated that when the Registrant provided his second medico-legal report he had had sight of HE’s treatment report. He stated that HE was an employee of the Registrant, a fact the Registrant must have known. He also referred to the definition of “associate” in the Protocol, which includes employees.
The Registrant’s Evidence
14.  The Registrant told the Panel about his long career in the RAF and as a Physiotherapist. He stated that there had been no previous concerns or complaints about his practice as a Physiotherapist.
15. The Registrant admitted Particular 1 (a) regarding the preparation of a medico-legal report. He said he had successfully completed an online course about 3 years ago and was added to the accredited list of experts. He stated that he did not recall that the course dealt with the issue now raised. He said that he had previously seen the Protocol which he had received as part of the on-line course. He stated he had “sped” read the Protocol and accepted he should have spent more time reading it. He did not discuss it with anyone as it was an on-line course.
16. The Registrant explained the “portal” through which he is sent referrals for reports. There was no discussion with the instructing solicitors beyond receiving the formal instruction letter from them dated 24 June 2016. He also explained how he produced the template for his reports including the sections on the Declaration and Statement of Truth, which he said he had taken from the reports of other experts.
17. The Registrant said that he had worked on a self-employed basis as a “sole trader” when producing medico-legal reports. He understood that to mean that he was not associated with anyone providing the treatment. He said he had done hundreds of reports on that basis.
18. The Registrant said that he had no contact with NT or the insurers and the instructing solicitor had not advised him of any issues associated with his second report regarding Patient A. He said he had been paid for the reports.
19. The Registrant said he had stopped doing medico-legal reports after August 2017 following a discussion with a colleague. The Registrant said he accepted that he should have read the Protocol more thoroughly. He also accepted that the way he had worked was not helpful.
20. The Registrant accepted that he had gone though a training process to become accredited. He did not recall that one of the training modules was on law and procedure, but he accepted that Part 35 of the CPR and the Protocol was addressed. The Registrant accepted that he should have been aware of what was in the Protocol and that he had provided this report under the Protocol.
21. The Registrant accepted that the instruction letter referred twice to the Protocol. The Registrant said he understood the Protocol, but that he believed he was not associated with the person who had assessed and treated Patient A. The Registrant accepted that his declaration contained a reference to the Protocol but that he had interpreted it in a different way. He maintained that as he had produced the report in a self-employed capacity as, a sole trader, he was not associated with the treatment provider as specified in the Protocol.
22. The Registrant did not deny that he knew HE and that she was a colleague and employee in 2016. He accepted he was Director of 10 Bridge Physio Limited and he was her employer. He said he did the medico legal reports as a sole trader and not as part of his other businesses and he understood that the declaration was needed to safeguard the independence of the report.
23. The Registrant denied he had been dishonest. He said he had no gain to make and had not deliberately misled anyone. After reflection, he said he had decided to stop doing the reports and stated he had misinterpreted the situation. He had recognised that there was a potential for a view that there was a conflict of interest.
24. The Registrant said that he recognised with hindsight that his actions could have compromised the court process in the assessment of damages. He said he had not reviewed his previous reports for similar conflicts. The Registrant said he had made an error of judgement and had learned from it. The Registrant said he now saw that his interpretation of the Protocol had been wrong.
25. The Registrant told the Panel that 10 Bridge Clinic Limited was no longer in business. 10 Bridge Physio Limited was an outsourcing agency which sources physiotherapists across the UK for clients, such as solicitors. He was the Director. The two businesses occupied the same building until March 2018.
26. The Registrant said the declarations on the reports did not change so he did not read them each time. In hindsight, he said he realised that he should have been more thorough. He explained that these reports were the only work he did on an independent, self-employed basis which was separate to, and in addition to, his work as a Physiotherapist for 10 Bridge Physio Limited.
27. The Registrant said that when he trained as an accredited expert he had thought that he would prepare the reports on a self-employed basis, and that would satisfy the requirement for independence. He said he now realises that he not taken the issue as seriously as he ought to have.
HCPC Submission on Facts, Misconduct and Impairment
28. Ms Sheridan referred to the need to assess evidence on the balance of probabilities and that the onus rested on the HCPC. She reminded the Panel that the issue of dishonesty was at the heart of this case and she referred the Panel to the test in Ivey v Genting Casinos (UK) Limited t/a Crockfords [2017] UKSC 67. She submitted that the test was objective.
29. Ms Sheridan submitted that the Panel must consider what the Registrant’s state of knowledge and belief was when he signed the declaration on 24 December 2016, and whether that was honest or dishonest applying the objective standard of ordinary decent people. She submitted that what the Registrant had done was dishonest as he knew the author of the physiotherapy report was an employee, HE. She submitted that the Protocol was clear.
30. Ms Sheridan submitted that the Protocol aside, the Registrant was instructed to provide an independent report and, on a commonsense approach, the Registrant was associated with the treating Physiotherapist, HE, at the same address. She submitted that this was an obvious conflict of interest. She submitted that the Registrant had not credibly explained why it became clear to him that there was a conflict of interest 6 months later.
31. On the issue of misconduct, Ms Sheridan referred to the case law including Roylance v GMC (No 2) [2000] 1 AC 311. She referred to the HCPC Standards of conduct, performance and ethics, and in particular Standards 3 and 9 which she submitted had been breached by the Registrant. She submitted that, even in the absence of dishonesty, the facts of Particular A amounted to misconduct. She submitted that the Registrant had shown a lack of care in the preparation of the report which could have undermined the court process for which it was prepared.
32. Ms Sheridan referred to the HCPTS Practice Note on Impairment and to the element of both the personal and public elements of impairment. She stressed the importance of the public interest and maintaining public confidence in the profession and submitted that the Registrant’s fitness to practise was impaired on the personal and public components.
Submissions for the Registrant
33. Ms Hart submitted that the evidence of the Registrant had been consistent and frank. He had also admitted matters, accepting that he was aware of the Protocol and the Declaration he had signed. His position had consistently been that he had been mistaken in considering he was not associated with HE as he was acting as a sole trader.
34. Ms Hart submitted that the test in Ivey was a two-stage test, the first being the state of mind of the Registrant, and the second, the objective test. She submitted that the evidence indicated that the Registrant had been careless, not dishonest in the signing of the declaration.
35. Ms Hart also submitted that the training for MedCo was completed on-line and the CPR Protocol was simply provided as part of that training. The Registrant admitted he had “skimmed” these documents, and she submitted the Protocol was not easy to understand. She submitted that the Registrant did not know any other professionals who did medico-legal reports that he could talk to, and that the Registrant had misunderstood.
36. Ms Hart submitted that, significantly, the Registrant realised, following discussions with a colleague in the Summer of 2017, that there may be a conflict issue and “the penny dropped”. He then ceased doing medico-legal reports. She said this strongly indicated carelessness rather than dishonesty. She submitted that the Registrant made no financial gain and had no reason to be dishonest. Ms Hart submitted that the Registrant had not consciously made a false declaration, it was carelessness.
37.  Ms Hart submitted that in the absence of dishonesty being found, the admitted conduct on Particular 1 (a) was not sufficiently serious as to amount to misconduct. Ms Hart submitted that the Registrant had acted in good faith, based on a practice of cutting and pasting parts of the report. He had made no financial gain and there was no evidence of actual conflict of interest, only a potential.
38. Ms Hart submitted that on the question of impairment, the Registrant has full insight into his errors and accepted his failure to properly read documentation. He said he had learnt from the events and would, in the future, seek advice and approach matters differently. This was a single act and, if dishonest, she submitted it is at the lower end of dishonesty in an otherwise unblemished career.
39. The Panel heard and accepted the advice of the Legal Assessor. He advised the Panel to assess the evidence and apply the balance of probabilities. The onus rested on the HCPC to prove its case. He advised the Panel to be mindful of the definition of “associated” in the Protocol.
40. On the issue of dishonesty the Legal Assessor referred the Panel to the test in Ivey v Genting Casinos (UK) Limited t/a Crockfords [2017] UKSC 67. The test was stated as follows:-
“When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest".
41. The Legal Assessor reminded the Panel of the test for misconduct in Roylance. On impairment, the Legal Assessor referred the Panel to the HCPTS Practice Note on Impairment and to the guidance in the case law, in particular Grant v NMC [2011] EWHC 927 (Admin). He stressed to the Panel the central importance of the public interest in its consideration of current impairment of fitness to practise.
Decision on Facts
42. The Panel considered the submissions and heard and accepted the advice of the Legal Assessor. The Panel was mindful that on matters of fact, as distinct from issues of misconduct and impairment, the burden of proof rests on the HCPC and that the standard of proof is the civil standard, that is the balance of probabilities. Misconduct and impairment were a matter for its own professional judgement.
43. The Panel assessed witness NT. It found his evidence helpful and of assistance. His evidence in respect of the legal requirements was helpful and he did not seek to embellish his evidence.
Particular 1 (a) – Found Proved
44. This is proved in light of the admission by the Registrant and evidence in the report before the Panel signed by the Registrant on 24 December 2016.
Particular 2 – Found Proved
45. The Panel considered the Registrant’s evidence and his explanation for signing the report. The Panel found his position lacked credibility. His explanation that the issue of independence and possible conflict only occurred to him following a discussion with a colleague in the summer of 2017 was implausible. He said that, on the basis of that discussion, he realised there may be an issue and decided to stop doing medico-legal reports. That explanation was not cogent. It was vague and lacked detail in respect of the context of the discussion with the colleague. The Panel did not find it plausible that the Registrant stopped doing medico-legal reports despite having done hundreds over the previous two years and in the context of the issue associated with his second report being addressed in the courts in September 2017. In light of all the above, the Panel did not find the Registrant’s explanation credible.
46. The Panel also found that the Registrant gave an implausible account of the provenance and the use of references provided in the report seen by the Panel. It contained references which stated they had been “accessed” in 2008 and 2011. The Registrant accepted those dates were clearly wrong and were as a result of him “cutting and pasting” from another expert report. He initially told the Panel that he had done a literature search, and then accepted that he had cut and paste the references, but said he had read those references. The Panel found that explanation was inconsistent and lacked credibility.
47. The Registrant told the Panel in his evidence that he knew from his training for accreditation that he was not to be associated with the person who had provided treatment. He said that the accreditation training he had completed with Medco had included reference to, and a copy of, the CPR Protocol setting out the role and duties of those who provide reports. The Protocol contains a definition of “associated”. The Registrant said he had ticked the box acknowledging that he had read the Protocol.
48. The Panel considered that the Declaration in the report signed by the Registrant is clear and unambiguous. It sets out explicitly: - “(ii) I am not associated with any person who has provided treatment.”
49. The Declaration also refers explicitly to the CPR and to Practice Direction 35 - “I am aware of the requirements of part 35 of the Civil Procedure Rules Procedure Rules Practice Direction 35, protocol for the instruction of experts to give evidence in Civil Claims 2005.”
50. The Solicitor’s letter to the Registrant dated 24 June 2016 instructing the report also makes clear reference to the Protocol, and states that he is instructed “only in accordance with” that Protocol.
51. The Panel considered the state of the Registrant’s belief at the time. The Panel found that the Registrant knew at the time of signing the report that he was associated with HE. He was a Director and she was an employee of the company on the same premises. That falls within the definition of “associated” in 1(a) of the Protocol.
52. The Panel does not accept the Registrant’s assertion and his explanation that he believed that he was not associated with HE by reason of him being self-employed when undertaking the reports. The Panel did not find that it was credible that the Registrant genuinely believed that his association with HE ceased when he became “self-employed” in order to do medico-legal reports.
53. The Panel found that the Registrant’s self-employed/sole trader defence was either a rationale at the outset of undertaking the medico-legal work, or a rationale that he had developed since being challenged on the issue. The Panel does not accept that the Registrant genuinely believed he was not associated with HE at the time.
54. The Panel concluded that the Registrant signed that Declaration on 24 December 2016 knowing that he was associated with HE, the physiotherapist who had provided treatment.
55. The Panel next applied the objective test for dishonesty required by Ivey. It found that, in all the circumstances, applying the standards of ordinary, decent people that the Registrant’s signing of the declaration in the report of 24 December 2016 was dishonest.
Decision on Grounds
56. The Panel noted that the Registrant is a senior Physiotherapist, with a long career and with a good understanding of business. It found that he did not carry out due diligence in setting himself up to do medico-legal work, which was an area in which he had no previous experience.
57. The Registrant’s actions were serious. He held himself out as an independent expert, providing information that would go before a Judge to decide upon damages for personal injuries. He did so knowing his independence could be viewed as potentially compromised. The parties to the personal injury litigation would not have been aware that he was not independent.
58. The context and nature of the role of an independent expert is a significant and important part of the legal process before the courts. The Registrant ignored the rules applicable to his role. He gave little or no consideration to the Protocol on which he had been instructed, had prepared the report and which he explicitly declared he had adhered to. He made a dishonest declaration in a medico-legal report that was to be relied upon in a judicial process in which his independence was crucial.
59. The Panel considered the HCPC Standards performance, conduct and ethics. It decided that the Registrant had breached the following standards:
“3.4 You must keep up to date with and follow the law, our guidance and other requirements relevant to your practice.
9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
9.4 You must declare issues that might create conflicts of interest make sure that they do not influence your judgement.”
60. The Panel determined that the facts proved are sufficiently serious to amount to misconduct falling far short of what would have been proper in the circumstances.
Decision on Impairment
61. The Panel next considered whether the Registrant’s fitness to practise was currently impaired. It kept in mind the central importance of the protection of the public, the wider public interest and the guidance provided in the Grant case and the HCPTS Practice Note on Impairment. The Panel was mindful of the over-arching purpose of the Regulator which is to protect the public and to safeguard public confidence in both the profession and the HCPC.
62. On the personal component the Panel found that the Registrant expressed some remorse and regret in respect of the Declaration and he admitted his lack of due care and attention to his responsibilities. The Registrant showed partial insight into his failings and seemed now to recognise the seriousness of his actions. He has reflected on his actions, and he has developed some insight into the responsibilities of producing an expert report.
63. The Registrant made clear in his evidence that he now better understands the role and responsibility of an expert. He has accepted that he was careless and articulated to the Panel that were he to do reports in the future he would consider his position more carefully, properly read all the relevant guidance, he would seek advice, and seek guidance from a mentor. He said he would look to join a special interest group for medico-legal work.
64. In terms of remediation, the Panel noted that the Registrant has stopped doing the reports and he clearly articulated what he would do in the future were he to start doing such reports again.
65. The Panel found that this was a single, isolated incident. No clinical issues arise in this case. No question has been raised about the Registrant’s conduct at any other time in a long and distinguished career in the RAF, as a Physiotherapist in Premier League Football, and in private practice as a Physiotherapist. The Registrant now understands the seriousness of the issues.
66. The Panel found that there was no issue of any harm to service users in this case. It found that the Registrant did bring the profession into disrepute, but he is not likely in the future to do so. The Panel found that the Registrant breached a fundamental tenet of the profession, namely honesty, but found that he is not likely in the future to do so. The Panel found that the Registrant presents a low risk of repeating his behaviour.
67. The Panel determined that the Registrant is not currently impaired on the personal component of impairment.
68. The Panel next considered the public component of impairment. The Panel has found that the Registrant held himself out as an expert writing medico-legal reports. He was dishonest on one occasion doing so. His report had an impact on the judicial process in which his report was used as important and independent evidence, the cost of which was refused by the judge.
69. An informed member of the public would be concerned if, knowing that a Registrant had made a dishonest declaration in a report prepared for a court, a finding of impairment was not made. The Panel therefore found that public confidence would be undermined if a finding of impairment were not made. It found that a finding of impairment is necessary in the circumstances of this case to uphold proper standards and to maintain confidence in the profession and in the regulator. Accordingly, the Panel determined that a finding of impairment is required on public interest grounds.
Decision on Sanction
Submissions for the HCPC
70. The Panel heard from Ms Sheridan. She referred to the HCPC’s Sanctions Policy (effective 15 July 2019). Ms Sheridan reminded the Panel to consider the wider public interest including the deterrent effect of sanction, public confidence in the profession, and any risk that the Registrant may pose to those who use or need his services. She submitted that taking no action would not be appropriate given the finding of dishonesty. She reminded the Panel of the Sanctions Policy guidance on dishonesty, conditions of practice and suspension.
71. Ms Sheridan submitted that the aggravating features were dishonesty, the legal context, and the risk of repetition, although the Panel considered it to be low.
72. Ms Sheridan submitted that the mitigating features were that the Panel had found this was an isolated incident, that he had insight, and was previously of good character.
Submissions for the Registrant
73. Miss Hart for the Registrant referred to the Sanctions Policy and reminded the Panel that it was a guide only, that each case should be considered on its own merit and of the Panel’s independence. She submitted that there was no tariff and that all sanctions were available to the Panel, including no action. She stressed that there were many shades of dishonesty. She submitted that in this case the dishonesty was at the lower end, there was no financial gain to the Registrant, and that the dishonesty related to a single declaration in one report. There was no suggestion that the report itself was wrong, and the court itself had accepted that the treatment had been properly provided.
74. Ms Hart said there was no evidence that the Registrant’s opinion was compromised, but he had accepted that objectively his behaviour could have been seen to undermine the independence of the report. She submitted the cause was a lack of due care and attention, and a lack of a full understanding of his role. He had accepted his responsibilities and “totally accepted” his failings. The Registrant had also suggested that training on the role could have been more rigorous.
75. Ms Hart referred to the Registrant’s oral evidence. She submitted that this showed the Registrant had good insight, and she submitted that he had built further on that insight in his latest reflection.
76. Ms Hart reminded the Panel that the Registrant had stopped doing medico-legal reports when he considered that there may be a risk of a conflict of interest. She reminded the Panel that it had found that the Registrant was at low risk of repeating the behaviour and he was not likely in the future to bring the profession into disrepute.
77. Ms Hart referred to the positive testimonials for the Registrant and submitted that they testified to his integrity, good character and professionalism. She pointed out that several testimonials were from other HCPC registered professionals and patients who held him in high regard. She stressed that the finding of dishonesty was out of character and an isolated incident.
78. Ms Hart referred to the HCPC Sanctions Policy and reminded the Panel that there was no issue in this case of public safety. She submitted there was a public interest in retaining good professionals on the Register.
79. Ms Hart explained to the Panel the Registrant’s acceptance of the finding of dishonesty and its effect on his employment position. Ms Hart sought that the Panel consider carefully taking no action and, if not, consider imposing a Caution Order. She submitted that such an order would send the proper message to the profession and the public. She submitted that the Registrant had remediated by no longer doing the reports. Ms Hart submitted that Condition of Practice could be workable, and that a Suspension Order and Striking Off Order would be disproportionate.
Legal Advice
80. The Legal Assessor reminded the Panel to consider the current HCPC Sanctions Policy and to consider sanction in ascending order of severity and to apply the least restrictive sanction necessary to protect the public. It should act proportionately and fairly and consider any aggravating and mitigating factors and bear in mind the public interest. He reminded the Panel that its finding of impairment relate to the public component only.
Decision on Sanction
81. The Panel accepted the advice of the Legal Assessor and reminded itself that the primary purpose of sanction is to protect the public. It was also mindful of the public interest. It considered the guidance in the HCPC Sanctions Policy and also had regard to its earlier findings. The Panel was mindful that it has found impairment of fitness to practise on public interest grounds only.
82. The Panel found that the mitigating factors were:
• This was an isolated incident, involving one report in 2016
• The Registrant demonstrated remorse and regret for the consequences of his actions
• There was no evidence of any pattern of dishonest behaviour
• There was no harm to service users and no clinical issues
• The Registrant has demonstrated insight
• The Registrant has numerous excellent character and professional testimonials, including from his current employer, patients and other health professionals who are aware of the finding of dishonesty
• The Registrant is of previous good character and there are no previous regulatory concerns
• The Registrant has an otherwise unblemished career.
83. The Panel found the aggravating features were :
• An act of dishonesty
• The dishonesty was in respect of a report which was relied upon in the judicial process as an independent report.
84. In light of the Registrant’s most recent written reflections, the Panel found that his insight has developed since the adjourned hearing in June 2019. The Panel was satisfied that the Registrant now has an enhanced understanding about his role and legal responsibilities when authoring medico-legal reports. He has accepted his lack of appropriate attention to the standard of the medico-legal report in question.
85. The Panel recognised that dishonesty was not easy to remediate. It concluded that the Registrant had taken steps to remediate his behaviour given his reflection and insight, and noted his decision in 2017 to no longer undertake reports for court. The Registrant has stated that he has a much better understanding of his role and responsibilities in doing medico-legal reports. It was satisfied that, were he to undertake such reports again in the future, he would take considerable care in doing so, and he would seek support and take advice.
86. The Panel considered the issue of dishonesty and the HCPC Sanctions Policy in that regard. The Panel determined that the dishonesty took place in specific circumstances. It was a single act of dishonesty in 2016. It was an isolated incident. It was not sustained or repeated. Whilst serious, in the Panel’s view, the dishonesty is not at the more serious end of the spectrum of dishonesty.
87. In the Panel’s view the risk of repetition is limited. Having considered all the information before it, including the Registrant’s written reflections, his oral evidence and the testimonials, the Panel accepted that the single act of dishonesty was out of character for a practitioner who is otherwise highly competent and well regarded as honest and conscientious.
88. The Panel first considered taking no action. Given its finding of dishonesty, the Panel decided that taking no action would not be sufficient or proportionate. It would fail to send the appropriate message to the profession and to the public, and would fail to declare and uphold proper standards of conduct and maintain confidence in the profession. It would not have a deterrent effect on other registrants.
89. The Panel next considered a Caution Order. It considered in particular the factors in paragraph 101 of the Sanctions Policy, which indicate when a Caution Order may be appropriate.
90. The Panel has found impairment on public interest grounds alone. It has found that the dishonesty was isolated and was out of character. Further, the Registrant has shown insight, has remediated and the risk of repetition is limited. No public safety or clinical issues arise in this case.
91. The Panel was mindful of the public interest and the need to declare and uphold proper standards, to maintain confidence in the profession and the regulator, and the deterrent effect on other registrants.
92. In all the circumstances, the Panel concluded that the public interest would be satisfied and the behaviour appropriately marked by the imposition of a Caution Order. It concluded that a Caution Order would be sufficient and proportionate as it would send the appropriate message to the profession and to the wider public that dishonesty in the context of the responsibility of an independent expert is unacceptable. It would uphold confidence in the profession and serve as a deterrent to fellow registrants.
93. The Panel was mindful of the seriousness of a finding of dishonesty. In light of that, it concluded that a Caution Order for two years would be proportionate. That length of Caution will serve to effectively mark this behaviour as unacceptable. The Panel considered that any less than a 2 year Caution Order may undermine public confidence in the profession and fail to deter others.
94. Although the Panel was satisfied by the sufficiency and proportionality of a 2 Year Caution order it did consider whether a more severe sanction was required. The Panel did not consider that Conditions of Practice lend themselves to the circumstance of this case. It found that realistic and workable conditions could be not formulated to deal with the finding of a single, isolated dishonest act. Looking further still, the Panel considered that in light of its findings as to insight and the isolated, out of character dishonest act, that to impose a Suspension Order would go further than is necessary to uphold public confidence in the profession and the regulator. It determined that a Suspension Order would, in the circumstances, be disproportionate and would be unnecessarily punitive.
95. Accordingly the Panel imposes a Caution Order for a period of 2 years.

 

Order

ORDER: That the Registrar is directed to annotate the Register entry of Mr Mark G Browes with a caution which is to remain on the Register for a period of 2 years from the date this Order comes into effect.

Notes

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


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

Hearing History

History of Hearings for Mr Mark G Browes

Date Panel Hearing type Outcomes / Status
30/08/2019 Conduct and Competence Committee Final Hearing Caution
20/06/2019 Conduct and Competence Committee Final Hearing Adjourned part heard