Mr Peter J Fletcher

Profession: Physiotherapist

Registration Number: PH49129

Interim Order: Imposed on 08 Feb 2019

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 04/02/2019 End: 17:00 08/02/2019

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

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

While registered as a physiotherapist, you:

1. In relation to Patient A:

a) Between approximately 23 February 2007 and 9 January 2015:  i. did not maintain adequate records;
ii. provided an excessive number of treatment sessions for the type of injury sustained by Patient A;
b) Between approximately July 2014 and October 2015, did not provide a copy of the patient notes to the patient’s solicitors and/or insurance company;
c) On or around 19 December 2014, invoiced Patient A’s solicitors for a medical report which was not provided;
d) On or around 17 August 2015, stated to Patient A that the patient notes were “scant”, “useless” and “wouldn’t help in any way” or words to that effect;
e) On or around 12 and/or 16 October 2015, sent a password-protected document purporting to be the patient notes but did not provide the password;
f) Indicated that hospital policy prevented you from disclosing patient notes  on accounts in arrears, or words to that effect, when this was not the case;

2. In relation to Patient B:
a) Between approximately September 2009 and April 2011, did not maintain adequate records;
b) Between approximately May 2011 and October 2012, did not provide a copy of the patient notes to the patient’s solicitors;
c) In June 2011, requested and were sent payment for a copy of the patient notes but did not subsequently provide the notes;
d) On 29 July 2011, sent a password-protected document purporting to be the patient notes but did not provide the password.

3. In relation to Patient N:
a) In or around July 2015, did not provide a copy of Patient N’s treatment notes to Patient N and/or Patient N’s Solicitors upon request;
b) Told Patient N that the treatment notes were “My notes and I’ll do what I want with them” and/or “I made them, they’re not yours” or words to that effect;

4. Provided an excessive number of treatment sessions for the type of injury sustained in respect of patients including the following:
a) Patient C
b) Patient D
c) Patient E
d) Patient M
e) Patient N
f) Patient O

5. Your actions as described in paragraph 1a)ii, 1c), 1f), 2c) and 4 were dishonest.

6. The matters as described in paragraphs 1 – 5 constitute misconduct, alternatively the matters in paragraphs 1 – 4 constitute misconduct and/or lack of competence.

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

Finding

Preliminary matters

Service

1. The Panel was satisfied that the Registrant was notified of the date and time of the hearing via a letter dated 12 December 2018 (the “Notice of Hearing”) which was sent by first class post to his registered address and accordingly the HCPC had discharged its duty to serve documentation on the Registrant in accordance with the Health and Social Work Professions Order 2001 (the Order).

Proceeding in Absence of the Registrant

2. The Presenting Officer submitted that it was in the public interest for the hearing to proceed in the absence of the Registrant given the aging nature of the matter. He outlined the chronology of the matter, noting that a preliminary hearing took place on 25 April 2018, with the Registrant being notified of the updated allegations by a letter dated 18 May 2018. The final hearing bundle was sent to the Registrant on 12 October 2018 and he was contacted again on 25 January 2019 and informed that one witness would no longer be giving evidence. The Presenting Officer invited the Panel to exercise its discretion to proceed with the case in the absence of the Registrant, pointing out that the Registrant is under a professional burden to engage with the proceedings. There was an expectation that regulatory matters would be dealt with expeditiously and the evidence in this matter dated back to 2011, the matter having previously been set down for hearing in 2017. The Registrant had not engaged at any stage and there was no indication that, if the matter was adjourned, he would engage in future. The HCPC had two witnesses in attendance that day, others were scheduled to give evidence on later days and it was ready to proceed with the hearing.

3. The Panel received advice from the Legal Assessor, which it applied, and noted the provisions of the HCPTS practice note in respect of proceeding in absence. There had been no request for an adjournment received, nor any interest expressed by the Registrant in providing evidence via video or telephone link. The Registrant had not indicated any desire to be represented at the hearing, nor had he provided any reason for his failure to engage with his regulator in this matter. Included in the Notice of Hearing was confirmation that the hearing could proceed in the absence of the Registrant. He was therefore on notice that the hearing could proceed and that the Panel could consider striking him from the register without him being present.

4. The Panel was satisfied that it was appropriate for it to exercise its discretion to hear the matter in the absence of the Registrant.  Proceeding in absence may disadvantage the Registrant, given the serious nature of the matters to be determined. Nevertheless, it was satisfied that he was aware of the hearing (the Panel having already found that there had been good service in relation to the Notice of Hearing), had chosen not to be represented or provide any comment on the matter, and had not engaged with this regulator at all from the commencement of the regulatory proceedings. Witnesses were in attendance for the HCPC and there was no evidence to suggest that the Registrant would attend or even engage in the event that the matter was adjourned to an alternative date. It considered that the public interest in proceeding outweighed any potential prejudice which may be suffered by the Registrant. It was satisfied that the Registrant had voluntarily absented himself from the proceedings without making representations.

Background

5.   The Registrant was a consultant clinical specialist Physiotherapist working at the Private Patient Unit at the University Hospital Aintree (“the Hospital”). He was not an employee of the Hospital but rather was permitted by it to practise from their premises. The Hospital managed those permitted to carry out private practice at the site via its Medical Advisory Committee (MAC), including the determination of any complaints and clinical governance issues concerning consultants and healthcare professionals granted admitting / consulting rights by it.

6.  There were two other physiotherapists granted consulting rights by the MAC, however they were based upon wards, whereas the Registrant was based within the Diagnostic Centre. Patients could self-refer to the Registrant or be referred by a medical practitioner, and they could be self-funding or covered by insurance.

7.  As the Hospital did not employ the Registrant, he was solely responsible for the management of his patients, including their records. However, having received a complaint in relation to the Registrant’s failure to provide notes of treatment, the Chairman of the MAC wrote to the Registrant and warned him that a continued failure to provide requested medical records would be a serious issue that the MAC would have regard to when determining whether to allow his rights to practice from their premises to continue.

8.   Notwithstanding the correspondence from solicitors acting on behalf of patients, contact from representatives of the insurance company acting for a patient, direct requests by patients for copies of their records and the warning issued by the MAC, the Registrant failed to provide the requested medical notes and a referral was made to HCPC as to the Registrant’s conduct on 14 October 2015.

9.   The matter was initially listed for hearing in 2017, however it was determined at that point that it was necessary for an expert witness to be appointed. Once the expert report was received, the HCPC applied to amend the Particulars, which was confirmed to the Registrant by a letter dated 18 May 2018.       

10.   The HCPC provided a bundle of documents in support of the allegations in relation to the Registrant and called 6 witnesses to give evidence to the Panel. The Registrant was not in attendance, not represented and had provided no information to the Panel.  

Assessment of Witnesses

Elliott Brock

11.   Elliott Brock , a registered Physiotherapist, was instructed by HCPC to provide expert opinion in respect of “the appropriateness of the duration and quantity of physiotherapy treatment administered by [the Registrant]”. He gave evidence to the Panel under affirmation however the Panel did not consider Elliott Brock to be sufficiently prepared to give evidence to it, or indeed familiar with the evidence upon which he was to offer an “expert” opinion nor did he approach his role with the rigour expected of expert witnesses. It was concerned that he appeared to have a narrow view of the evidence provided to him by HCPC and surprised by the dogmatic nature of his assessment of the information provided to him via the witness statements.

12.   The Panel noted that Mr Brock  made passing references to “national and international evidence” yet was unable to provide detail of the same when questioned by the Panel and despite his signed declaration that he had shown all the sources he had used. It also noted that he declared that “I have endeavoured to include in my report those matters, of which I have knowledge, or of which I have been made aware, that might adversely affect the validity of my opinion. I have clearly stated any qualifications to my opinion.” but the Panel could not identify any examples of Mr Brock identifying alternative explanations for the treatment provided by the Registrant in his report.   

13.   In response to its questions, the Panel noted that Mr Brock  changed his position with regard to the matters on which he was giving evidence – i.e. from an opinion that the Registrant’s treatments of relevant patients were excessive to the belief that they may have been excessive. The Presenting Officer confirmed to the Panel when closing the case for the HCPC that this was also his interpretation of Mr Brock’s evidence.

14.   The Panel was mindful of the HCPTS Practice Note entitled “Opinion Evidence, Experts and Assessors”, which confirms that expert witnesses may give opinions on matters requiring specialist knowledge within their field of expertise, whereas witnesses generally can only give evidence as to facts, not opinion. The Practice Note confirms that a Panel should only agree to receive expert evidence where it will assist the Panel to deal with the case, and should limit the use of oral expert evidence to that which is reasonably required. Expert evidence should be the independent opinion of the expert having considered all material facts, including those which might detract from their opinion, providing objective, unbiased opinion on matters within their expertise.

15.   The Panel did not find the evidence of Elliott Brock of particular assistance to it.

Patient A

16.   The Panel found this witness to be straightforward, helpful, fair and consistent. He gave evidence under oath, recognised positive aspects of the Registrant’s pratice and was considered and balanced in his evidence despite his personal injury claim being adversely impacted by the alleged behaviour of the Registrant.  He readily explained the mechanism by which his statement had been taken and identified where his memory was less clear due to the passage of time.  

AT

17.   This witness was a paralegal in a firm of solicitors representing Patient A in respect of a personal injury claim. He gave evidence to the Panel under affirmation and the Panel found him to be a straightforward and impressive witness.  He confined his evidence to what he knew and his oral evidence was consistent with his witness statement. He appeared well prepared and spoke confidently. He had maintained a contemporaneous audit trail of his engagement with the Registrant and appeared to have acted in accordance with common practice in pursuing the medical records from the Registrant.

JF

18.  JF was employed as a business manager by Aintree University Hospital, having originally qualified as a nurse. She provided evidence to the Panel under affirmation. She was responsible for the two private patient care units operated by the hospital, covering approximately 120 consultants. She oversaw the management of private patients, contacts with insurance companies and was responsible for staff other than nurses. She also had responsibilities as a senior manager within the NHS. She explained the clinical governance processes in respect of the private patient unit and her involvement with the Registrant as complaints were received and his consulting rights in the unit were ultimately withdrawn by the Medical Advisory Committee (“MAC”). The Panel found her to be clear and straightforward in her evidence, which was consistent with her statement.

TW

19.   This witness was, at the material time, a partner in the firm of solicitors representing one of the Registrant’s patients in respect of a personal injury claim. His evidence was provided to the Panel under oath.  Copies of medical records had been requested from the Registrant for the purpose of progressing that claim, and the requested fee paid to the Registrant. However, the records had not been provided and ultimately the claim was progressed without the benefit of the Registrant’s notes. The Panel found TW to be consistent and helpful in his evidence, which reflected that contained within his witness statement.

SS

20.   SS was employed by Western Provident Association (WPA) to manage provider services, which meant she liaised with solicitors, patients and clinicians. Her evidence was given to the Panel under oath. Solicitors for Patient A asked for assistance from WPA to obtain the Registrant’s notes in respect of Patient A to enable them to pursue a personal injury claim on his behalf. The Panel found her to be an impressive and credible witness with good recall. As with the other witnesses, she did not appear to have an axe to grind and her evidence was consistent with her statement and the exhibits.

21.  The Panel wished to place on record its gratitude to all witnesses who attended, mindful of the fact that they had all travelled some distance to attend the hearing and assist it in this matter.

Decision on Facts


22.   The Panel considered each Particular in turn, taking account of the documentary and oral evidence available to it, the submissions of the Presenting Officer and the legal advice provided by the Legal Assessor. In determining whether an allegation is “well founded” or “proved”, the Panel is required to decide whether the HCPC, which has the burden of persuasion in relation to the facts alleged, has discharged that burden.

Patient A

23.   Patient A initially consulted the Registrant in 2007 following a lower back injury sustained while playing sport, which was then aggravated by a subsequent motor vehicle accident. The treatment provided by the Registrant to him was funded through a private health insurance package with WPA. Patient A did not have any concerns about the treatment he received from the Registrant but was frustrated by the Registrant’s failure to provide copies of his medical records to those handling his personal injury claim and to his insurers. He found it difficult to be the “piggy in the middle” between the Registrant and those acting on his behalf. 

1(a)(i)  In relation to Patient A, between approximately 23 February 2007 and 9 January 2015, you did not maintain adequate records – found proved
 
24.  The HCPC’s case in respect of this Particular was advanced on the basis that because no records had been provided by the Registrant, no adequate records had been maintained by the Registrant.

25.   Within his witness statement Patient A made reference to the Registrant documenting information and in his oral evidence he confirmed that the Registrant had made some notes during his treatment, though he recognised that other physiotherapists he had seen appeared to take more comprehensive notes than the Registrant. The Registrant had indicated to WPA on a number of occasions that he did maintain notes – for example, during a telephone call dated 14 July 2015 between the Registrant and witness SS, the Registrant stated “I’d document that he’d turn up late in his records” and confirmed in response to SS asking if it would be part of the notes”it will”. During another telephone conversation between the Registrant and witness SS on 22 July 2015, the Registrant confirmed that he had had “a brief look at his notes” and in response to being reminded that he had agreed to provide the notes by “next Tuesday” stated “I did try to get things done by Tuesday but as I said to you in that email I was stuck in a meeting”. 

26.  Notwithstanding the above, Patient A notified WPA via a telephone call on 17 August 2015 that he had spoken to the Registrant and been informed by him that “my medical notes he said they’re really scant their just, they’re basically what you’ve come in, what you’ve complained about, they’re not going to help Adam in any way” and “the records are useless to him”.  This led Patient A and WPA into a discussion as to whether the Registrant had any notes at all. The call concluded with Patient A stating “I was to let you know that the notes were no good and I’ve told you that, they wouldn’t be any help, let you know his opinion was you need a report”. Witness JF confirmed that upon the Registrant’s consulting rights at the Hospital being withdrawn in October 2015 it was assumed, as he was entitled to do, that “he took all his records with him as we cannot find them”.  She went on to state that the Hospital asked the Registrant to remove his equipment from the site but he did not respond. 

27.  The Registrant also assured the Chair of the MAC during a meeting on 1 October 2015 that he had kept “proper clinical records”, but he failed to produce viewable copies of the same to the MAC and to WPA as requested. To date, the medical records relating to Patient A have not been supplied by the Registrant to Patient A, WPA or solicitors acting for Patient A in a personal injury claim.
 
28.  The Panel was satisfied on the balance of probability that the Registrant may have maintained some records in relation to his treatment of Patient A, however there was no evidence before them that the same were of a standard to be expected of a registered Physiotherapist. Accordingly, they were satisfied that it was more likely than not that the Registrant did not maintain adequate records and therefore this Particular was found proved. 

1(a)(ii) In relation to Patient A, between approximately 23 February 2007 and 9 January 2015, you provided an excessive number of treatment sessions for the type of injury sustained by Patient A – found not proved.

29.  Elliott Brock had been retained by the HCPC to provide an expert opinion as to the treatment provided by the Registrant. Given that Particular 4 deals with the issue of the number of treatment sessions provided by the Registrant to a number of patients, the Panel adopts the reasoning set out in respect of Particular 4 in relation to this Particular.

30.  Mr Brock was aware that Patient A had not expressed any concern about the treatment provided by the Registrant to himself, even if this was not reflected in his report.

31.   Patient A’s witness statement confirmed “I would not have continued to see him [the Registrant] if I had not felt that I was getting the right treatment from him”. Patient A also informed the Panel in his oral evidence that he had no criticism of the Registrant in respect of the treatment he received, his concerns all related to the Registrant’s failure to provide him with copies of his medical notes. He chose to cease receiving treatment from the Registrant once the “cost benefit analysis” of the inconvenience of attending the sessions outweighed the benefit of the treatment he received from the Registrant. This evidence seemed to be at odds with a comment made by Patient A to WPA during a telephone call of 8 December 2014 that “I’m just worried he’s dragging out my treatment, you know, I’m worrying my wellbeing is not his primary concern” however the Panel preferred the oral evidence given to them by Patient A.

32.   The Panel was not satisfied that the HCPC had proved on the balance of probability that the Registrant had provided Patient A with an excessive number of treatment sessions for the injury suffered by Patient A. Accordingly, this Particular was not proved.

1(b)  In relation to Patient A, between approximately July 2014 and October 2015, you did not provide a copy of the patient notes to the patient’s solicitors and/or insurance company – found proved.

33.   The Panel accepted the evidence of AT of Patient A’s Solicitors and SS of his insurance company that the relevant medical notes were not provided despite numerous attempts to obtain them.

34.   The Panel noted that the Registrant had, during a telephone conversation with WPA dated 14 July 2015, acknowledged receiving a request for the medical records of Patient A dated 18 July 2014. They also had a transcript of a telephone conversation on 17 March 2015 between WPA and the Hospital during which the receptionist acknowledged that she had passed a couple of messages from WPA to the Registrant and recalled that the matter was urgent, confirming that the request had been put in the Registrant’s diary and confirmed to him by email so that “it will be on the system for him tomorrow morning when he turns the computer on”. During a telephone conversation with witness SS on 22 July 2015, the Registrant had confirmed that he had “not yet” sent the medical notes to the solicitor. When meeting with the MAC Chair on 1 October 2015, the Registrant stated that his reason for not providing Patient A’s medical records was to put pressure on WPA and the solicitor to settle bills outstanding to him in respect of Patient A.

35.  Patient A confirmed that he had asked the Registrant for his notes in August 2014 but the Registrant had told him that “his preference was to complete a medico-legal report but that this required a fee”.

36.  Witness JF confirmed in her statement that “the records would be provided whether or not there were any outstanding fees to be paid” and reiterated the same in her oral evidence to the Panel. Witness SS also confirmed to the Panel that a SAR (Subject Access Request under the Data Protection Act 1998) and an AMRA (Access to Medical Records Act 1988) would not “cross” with billing issues.

37.  The Panel was satisfied that the Registrant had received the request for disclosure of Patient A’s records and that he deliberately did not disclose them despite receiving multiple requests to do so. On the basis of the evidence before it, the Panel was satisfied that the records had still not been provided to WPA, the Solicitors or Patient A by the Registrant. The Panel also noted that despite 8 separate requests, the Registrant had not provided the relevant records to the HCPC. This Particular was therefore proved.

1 (c) In relation to Patient A you, on or around 19 December 2014, invoiced Patient A’s solicitors for a medical report which was not provided – found proved

38.  The Panel had been provided with a copy of the invoice submitted to the solicitors for Patient A from the Registrant dated 15 December 2014. It heard from Patient A, SS of WPA and AT of Patient A’s solicitors that no medical report had been received and this evidence was consistent with the Registrant’s open admission to the MAC chair in October 2015 that he was withholding information to pressure settlement of his outstanding account.

39.   The Panel was satisfied that the Registrant did issue an invoice for the production of a medical report, and that he did not produce any such medical report. This Particular was therefore proved.

1(d)  In relation to Patient A, on or around 17 August 2015, you stated to Patient A that the patient notes were “scant”, “useless” and “wouldn’t help in any way” or words to that effect – found proved

40.  Patient A provided evidence to the Panel that he spoke with the Registrant about accessing his medical records in 2015, having bumped into the Registrant while attending the hospital for an appointment with another medical practitioner. Patient A then telephoned WPA and spoke to witness SS, letting her know the detail of this conversation. The Panel had a transcript of that telephone conversation between Patient A and WPA, which in their view amounted to a contemporaneous record of the conversation. They also heard from Witness SS. When questioned by the Panel, Patient A confirmed that the Registrant had said that the notes would not help, but that that was not the point.

41.  The Panel was satisfied, from the oral and documentary evidence provided to them, that the Registrant had told Patient A that the medical records held by him would be of little assistance in the personal injury claim. Accordingly this Particular was proved. 

1 (e)  In relation to Patient A, on or around 12 and / or 16 October 2015, you sent a password-protected document purporting to be the patient notes but did not provide the password – found proved.

42.  Witness JF confirmed that on 12 October 2015 the Chair of the MAC received an email from the Registrant which had a password protected attachment said to contain the medical records of Patient A. The Chair wrote to the Registrant and confirmed that he had immediately replied to the Registrant to request the password, and also sent a text message requesting the password but the same was not provided.  It was therefore satisfied that the Registrant had sent a password protected document on 12 October 2015 but not supplied the password to the document, which was said to be the medical records for Patient A.

43.  The Panel also considered an email from the Registrant to witness SS dated 16 October 2015 which was said to have the medical records of Patient A attached to it. As with the email to the Chair of the MAC however, the attachment was password protected, and the password was not supplied to SS by the Registrant.

44.  On the balance of probability, the Panel was satisfied that the Registrant had sent password protected documents on 12 and 16 October 2015 by email but had failed to supply the password to access the document. This Particular was therefore proved.

1(f)  In relation to Patient A you indicated that hospital policy prevented you from disclosing patient notes on accounts in arrears, or words to that effect, when this was not the case – found proved

45.  Witnesses SS and JF both confirmed to the Panel that they had informed the Registrant that the issue of outstanding invoices was not relevant when dealing with a request for disclosure of medical records. JF went further in her oral evidence to the Panel, stating that finance and clinical governance issues were separate matters and there was no connection between them.

46.  The Panel had access to an email exchange dated 11 September 2015 between witness SS and witness JF reflecting that the Registrant had informed WPA that hospital policy was to not send medical notes when the account was in arrears, which assertion was categorically rejected by JF stating “I must reiterate though that it is not hospital policy to withhold patient notes that are requested because of non-payment of an account”.

47.  The Panel noted that the Registrant was not an employee of the Hospital and that JF asserted that he therefore was not bound by the trust policies on record-keeping. Notwithstanding this however, it was satisfied from the oral and documentary evidence available to it that the Registrant had indeed stated that he could not disclose the records as a consequence of hospital policy, and that this was not in fact the case. There was no evidence of such a policy existing, and even if there was, the Registrant would not be bound by such a policy.

48.   It was also apparent to the Panel that, in addition to referencing a hospital policy as authority for withholding the records, the Registrant also asserted during a call with SS “My policy that until accounts are settled I don’t do anything else, now I’m quite sure the law will back me up on this”, to which SS responded “so from your position then because there is £705 arrears on the account that you will not send those medical notes to the solicitor, that’s correct isn’t it that’s your current position”.  The Panel was therefore satisfied that this Particular was proved. 

Patient B

49.  Patient B had instructed TW’s firm of solicitors in respect of a personal injury action arising from a road traffic accident on 16 September 2009.  Patient B had been treated by the Registrant who, therefore, was contacted and requested to provide copies of his notes of treatment to support the claim.

2(a)  In relation to Patient B, between approximately September 2009 and April 2011, [you] did not maintain adequate records – found proved.

50.  As with particular 1(a)(i), the HCPC advanced the case that adequate notes did not exist because they had not been disclosed by the Registrant upon request by the solicitors acting for Patient B in a personal injury claim. Witness TW provided a statement to the Panel and also oral testimony confirming that, following a road traffic accident, Patient B was treated by the Registrant and copies of the medical records were required to pursue the claim. Copies of correspondence between the firm of solicitors and the Registrant had been provided in the bundle of exhibits and demonstrated that the records had been requested, an updated consent form sent to the Registrant, and a fee of £120 paid for the release of the records. A letter dated 19 July 2012 from TW to the Health Professions Council confirmed that the medical records of Patient B had not been provided at that point despite the Registrant being put on notice that they were required for the personal injury claim, which was approaching limitation.  TW confirmed to the Panel that despite having paid for the disclosure of the Registrant’s notes in respect of Patient B, the notes were not received. TW had not come across such a failure by a registered professional either before then or since in his extensive career as a solicitor.

51.  The Panel found the evidence of TW to be persuasive. As with Patient A, the Registrant had emailed a document to TW with a password protected attachment which was said to be the requested information (29 July 2011) but failed to supply the password to enable the document to be opened. This email was the only evidence available to the Panel which suggested that records existed in relation to Patient B. It was satisfied that it was more likely than not that the Registrant had not maintained adequate records of treatment in relation to Patient B. This Particular was therefore proved.   

2(b)  In relation to Patient B, between approximately May 2011 and October 2012, [you] did not provide a copy of the patient notes to the patient’s solicitors – found proved.

52.   TW provided written and oral testimony under oath to the Panel that the Registrant did not provide to him a viewable copy of the records he had kept in respect of his treatment of Patient B, only a password protected document purporting to be the records without the password in July 2011. He confirmed to the Panel that Patient B’s personal injury claim was eventually resolved without the notes and that he was instructed by Patient B to pursue a complaint against the Registrant to the Health Professions Council.

53.  The Panel was satisfied that this Particular had been proved on the balance of probability.

2(c)  In relation to Patient B, in June 2011, [you] requested and were sent payment for a copy of the patient notes but did not subsequently provide the notes – found proved.

54.   The Panel was satisfied that the Registrant issued an invoice to the solicitors dated 14 June 2011 for the provision of medical records “pertaining to the assessment and treatment of injury(s) of your client: Patient B”. It was also satisfied that the requested payment of £120 was sent to the Registrant under cover of a letter dated 20 June 2011 and that the Registrant did not dispute receipt of the same. It was satisfied that the Particular was proved.

2(d)  In relation to Patient B, on 29 July 2011, [you] sent a password-protected document purporting to be the patient notes but did not provide the password.

55.  As set out above in respect of Particulars 2(a) and 2(b), the Panel was satisfied that the Registrant did send a password protected document for which he did not supply the password and accordingly it found this Particular proved. 

Patient N

56.   This patient received treatment from the Registrant as a consequence of injuries sustained in a motor vehicle accident in November 2011. The patient underwent an operation in November 2013 to address the injury and was subject to a further motor vehicle accident in August 2014. He was treated by the Registrant on a regular basis until March 2015. His solicitors requested medical records from the Registrant to support a personal injury claim being made by Patient N. The Patient was called by HCPC to give evidence but was unable to do so due to his current medical status. The Panel had not therefore had the opportunity to test his evidence and accordingly attached less weight to it, but noted a similar theme of the Registrant failing to provide copies of medical notes and denying that the patient was entitled to receive disclosure of the records. 

3(a)  In relation to Patient N, in or around July 2015, [you] did not provide a copy of Patient N’s treatment notes to Patient N and / or Patient N’s Solicitors upon request – found proved

57.   The Panel noted that although it had been unable to test the evidence of Patient N, it had been provided with documentation from solicitors to Patient N in relation to the requests they made to the Registrant for the disclosure of Patient N’s treatment records, commencing with correspondence dated 16 April 2015. On 13 July 2015 the solicitor recorded a file note that the Registrant offered via an email to provide a medical report. They responded on 13 July 2015 confirming “All we need are the contemporaneous notes you prepared when you saw Patient N”.  The last contact the solicitors had from the Registrant was a text message sent to Patient N which was reflected in a file note dated 14 July 2015 that “I have been left with very little time at all to deal with this matter. I will endeavour to deal with this matter in due course...I will do my best to accommodate your request”. A further file note dated 15 July 2015 reflected Patient N reporting “Peter Fletcher will not give him the notes…..Mr F states will not release them”. The Panel also noted that, by an email dated 16 February 2018, the solicitor confirmed that Patient N instructed him to conclude the claim on the basis of the evidence available.

58.  The statement of Patient N asserted that he recalled the Registrant making notes during his first appointment on 26 January 2012. Following Patient N’s involvement in a second accident, further notes and photographs were taken by the Registrant in August 2014. The Panel was satisfied that this Particular had been proved on the balance of probability.

3(b) In relation to Patient N, told Patient N that the treatment notes were “My notes and I’ll do what I want with them” and / or “I made them, they’re not yours” or words to that effect;

59.  The evidence in respect of this Particular was solely contained within the statement of Patient N, which the Panel was not able to test. However, the statement provided is consistent with statements provided by other witnesses to the Panel, including witnesses who were able to attend and give oral evidence. The Panel noted that Patient N stated that he and his solicitor had complained about the Registrant to witness JF, however she did not reference this complaint in her evidence to the Panel (oral or written), nor did his solicitor. There was however a file note in which the Registrant’s displeasure was recorded that Patient N had attended the Hospital and had been “causing a scene”. On balance, the Panel considered it more likely than not that the Registrant had spoken to Patient N as alleged and therefore found this Particular proved.  

4. Provided an excessive number of treatment sessions for the type of injury sustained in respect of patients including the following:

a) Patient C
b) Patient D
c) Patient E
d) Patient M
e) Patient N
f) Patient O

- found not proved.

60.  Expert witness Elliott Brock  confirmed that he was able to comment on the treatment provided by the Registrant to patients A, C, D, E, M, N and O even though he himself had seen neither the patients nor the Registrant’s notes of treatment, as he had experience of treating patients from a wide variety of backgrounds. He asserted that it was well documented in “international medical press” how healing progresses. He had never come across a patient that required 50 sessions of treatment. He accepted however that a patient could see a clinician for the purpose of maintenance – that is preventing a condition from getting worse - which he described as a “flatlining of the recovery curve”.

61.  When questioned by the Panel, Mr Brock accepted that without the detail of the injury or the notes of the Registrant, it may be difficult to comment on the treatment provided by the Registrant to each patient, however he was adamant that the goal of every Physiotherapist is to resolve complaints. Mr Brock appeared to the Panel to believe that because there were limited resources for NHS patients, and insurance companies would not usually fund more than 10 sessions of physiotherapy, any treatment above this figure would be excessive. He did however concede that treatment would not be excessive if the Physiotherapist had had a conversation with the patient as to the impact of treatment and the patient chose to continue.

62.   The Panel noted the opening submissions of the Presenting Officer that the Particulars involving excessive treatment relied upon the opinion evidence of the expert witness Mr Brock as to the treatment provided by the Registrant.  Mr Brock confirmed that he had had the opportunity to read the witness statements in this matter. The Panel had earlier set out its concerns regarding the evidence of the expert witness and its assessment of the expert witness’s approach to the role. 

63.   Given that the Presenting Officer conceded during his closing submissions that the expert witness had failed to reach the standard expected of expert witnesses and “rowed back” from the opinion offered in his report, the Panel was not satisfied that the HCPC had discharged the burden of proof in relation to Particulars 4(a) to (f). Accordingly, these Particulars were not proved.

5. Your actions as described in paragraph 1(a)(ii), 1(c), 1(f), 2(c) and 4 were dishonest – partially proved.

64.  The Panel was mindful of its obligation to determine whether the Registrant had, as a matter of fact, acted dishonestly. The test it should apply was set out in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67, which confirmed that the test for dishonesty in all legal proceedings is whether, objectively judged, the relevant party’s conduct was contrary to the objective standards of ordinary, decent people. The party’s genuine beliefs as to the honesty of their own conduct was no longer definitive. In that judgement, the Court set out that:-
“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. 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.”

65.  Applying the above test, the Panel was not satisfied that the HCPC proved dishonesty on the part of the Registrant, by the standards of ordinary decent people, in respect of Particulars 1(a)(ii), 1(c) and 4(a) to (4)(f).

66.  In respect of Particulars 1(f) and 2(c) however, the Panel was satisfied that the Registrant had, by the standards of ordinary decent people, been dishonest. It found that in respect of Particular 1(f), the Registrant was aware that the Hospital did not have a policy of withholding patient records in the event that there was an issue with their account, and even if it did, he was, or ought to have been, aware that as he was not an employee of the Hospital, he was not bound by any such policy. The Panel was satisfied that the Registrant had sought to mislead WPA, the MAC Chair, his patients and the solicitors acting on their behalf and that this was dishonest and contrary to what would be expected of a registered professional by ordinary decent people. In a similar way, in respect of Particular 2(c), by sending documents out attached to emails, allegedly accessible, referencing requests for disclosure, the Registrant sought to mislead and give the impression he had the notes and was prepared to provide them (having received payment for doing so) when this was clearly not the case. Particular 5 in relation to Particular 1(f) and 2(c), which amounted to dishonesty on the part of the Registrant, was therefore proved.

Decision on Grounds

67.   Having found some facts proved, the Panel considered whether the same, taken individually or collectively, amounted to a statutory ground of impairment, as set out within the Health and Social Work Professions Order 2001 at article 22(1), noting this was entirely a matter for it to determine. The Presenting Officer had restricted his submissions to the Panel to the grounds of misconduct and / or lack of competence. The Panel noted that the HCPC alleged the conduct of the Registrant could amount to a lack of competence. However, it was persuaded by the submissions of the Presenting Officer in respect of competence – there was no evidence that the Registrant didn’t know what his obligations were, he just did not do what he should have done. Registrants do make mistakes and not every minor error or isolated lapse in judgement indicates that a registrant’s fitness to practise is impaired. 

68.   The Panel assessed whether the proven facts amounted to the statutory ground of misconduct, noting that Roylance v GMC (No 2)[2001] defined misconduct:

“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a... practitioner in the particular circumstances.”

69.   The HCPC (as had its preceding regulator, the Health Professions Council) has adopted standards of proficiency for Physiotherapists, as well as standards in relation to conduct, performance and ethics that apply to registrants of all professions regulated by HCPC. The Panel had concerns about the Registrant’s conduct in this matter.  However, it was aware that the misconduct required to establish the statutory ground of misconduct needed to be serious misconduct.  This called into question whether the Registrant had met the standards of proficiency, conduct, performance and ethics when practising his profession.

70.  The Panel recognised that the creation and maintenance of medical records is fundamental to the practice of a registered Physiotherapist. The Panel also noted that the failure to provide the relevant medical notes had serious, or potentially serious, consequences for the patients concerned. In that regard the Particulars found proved – 1(a)(i), 1(b), 1(d), 1(e), 2(a), 2(b), 2(d), 3(a) and 3(b) - demonstrated a significant shortfall in the required standard of practice of a registered professional and therefore constituted serious misconduct.

71.  As regards Particulars 1(f) and 2(c), the Presenting Officer submitted to the Panel that the above Particulars amounted to misconduct as the Registrant had given dishonest and varying accounts as to why he would not be providing the medical records, demonstrating a lack of integrity and honesty to the detriment of his patients.

72.  The Panel was satisfied that the conduct of the Registrant in respect of Particulars 1(f) and 2(c) had fallen significantly short of what would be proper in the circumstances. It found that the Registrant was under an obligation to provide copies of medical records to patients and or their representatives upon request, regardless of the status of their account, and had not done so. It was satisfied that claiming a reason which he knew to be false for not providing medical notes and retaining fees for the provision of medical notes while failing to send the same to the party that had paid for them was both dishonest and amounted to conduct far short of that to be expected of a registered professional.

73.   The Panel determined that Particular 1(c), whilst amounting to misconduct, was not sufficiently serious to amount to the statutory ground of misconduct. All of the other Particulars it had found proved - 1(a)(i), 1(b), 1(d), 1(e), 1(f), 2(a), 2(b), 2(c), 2(d), 3(a), 3(b) and 5 - amounted to serious misconduct, being behaviour which fell far below that expected of a registered Physiotherapist and having potentially serious consequences for the patients concerned.

Decision on Impairment 

74.  The Panel listened carefully to the Presenting Officer’s submissions in respect of current impairment and received and applied advice from the Legal Assessor. It noted that to assist with determining whether fitness to practise is impaired where there is a finding of misconduct, the HCPTS has published a practice note for the guidance of panels and to assist those appearing before them. The test of impairment is expressed in the present tense in relation to the need to protect the public against the acts and omissions of those who are not fit to practise, but this cannot be achieved without taking account of the way a person has acted or failed to act in the past. When assessing the likelihood of recurrence of harm, Panels must take account of the degree of harm caused by the Registrant and the Registrant’s culpability for that harm, recognising that the harm could have been greater or less than the harm which was intended or reasonably foreseeable. Panels may also take account of character evidence. 

75.  The Panel found that 12 particulars had been proved, which amounted to the statutory ground of misconduct. It was mindful that a finding of impairment does not automatically follow a finding on that ground however the public may struggle to understand why, if facts were found proved that amounted to the statutory ground, a finding of impairment did not follow. The Panel was therefore expected to consider the following factors prior to reaching a determination in respect of impairment:-
-  the forward-looking nature of the impairment test;
-  the wider public interest;
-  any mitigating or aggravating evidence;
-  its findings of fact;
-  the extent of the Registrant’s insight;
-  the extent of any remediation undertaken by the Registrant;  
   and
-  the risk of repetition. 

76. It was noted that the Registrant had not engaged with the HCPC throughout this long running matter and therefore no information was available to the Panel in relation to the Registrant’s:-
(a)   level of insight, including contrition or remorse;
(b)  steps taken to maintain competence to practise;
(c)  current work situation;
(d)  current personal circumstances. 
Given the lack of engagement demonstrated by the Registrant to date, the Panel was not surprised to note that the Registrant had not provided any testimonials or other information to inform its determination on impairment. The Panel was therefore unable to identify any mitigating factors in relation to this case save for the fact that, prior to 2011, the Registrant appeared to have an unblemished regulatory record.

77.  By contrast, the Panel considered the following to be aggravating features of this case:-

(a)  the Registrant’s failings related to fundamental aspects of physiotherapist practice – including adequately documenting and disclosing treatments and assessments, and professional interactions with patients, colleagues and other professionals;
(b)  the Registrant’s comprehensive failure to engage with the Regulator in every respect;
(c) the period of time over which the Registrant had continued his misconduct and its repetitive nature;
(d)  the impact his actions had upon his patients, some of whom could be considered to be vulnerable by virtue of their age and / or health;
(e)  the Registrant’s actions had denied the legal rights of patients to be provided with their own medical notes;
(f)  the Registrant’s actions had impeded the access of patients pursuing legal remedies in the interest of justice;
(g)  dishonesty on more than one occasion.

78.   The Panel considered the Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective. It was concerned that the Registrant did not appear to understand or appreciate the gravity of the Particulars alleged, which had culminated in findings of serious misconduct being made against him. 

79.  The Panel had been unable to identify evidence of any insight, contrition, remorse, recognition or remediation in respect of the Registrant’s conduct or standard of practice. For example, no reflective pieces had been submitted to them by the Registrant.  It had no information in relation to the current state of the Registrant’s skills or whether his knowledge had been maintained. He had engaged in dishonesty over a period of years in respect of a number of patients and therefore it could not be said that this conduct was an isolated incident. He had been offered numerous opportunities to either provide the requested notes or explain why he could not do so but had not.

80.  It appeared to the Panel that the Registrant had repeatedly put his own interests above those of his patients. It noted particularly the evidence of SS that, when challenged by her during a telephone conversation, she found the Registrant to not just be defensive but to be obstructive. It was also concerned by the Registrant’s apparent dismissive approach to his patients (evidenced by the failure to document their treatment or respond appropriately to requests for access to their records).

81.  The Panel noted that the serious misconduct of the Registrant included instances of dishonesty. It was aware that it is often difficult to demonstrate remediation in respect of dishonesty but in any event, in this case, there was no evidence that the Registrant had even attempted to remediate his dishonesty.

82.   Further, the Panel considered that the areas of practise where misconduct had been found were capable, in themselves, of remediation. However, without appropriate insight, the effectiveness of remediation would be limited. It concluded that in the light of the Registrant’s lack of insight and remediation, together with the number of patients affected over a prolonged period of time, there was a real risk of the misconduct being repeated and therefore it found the Registrant to be impaired on the personal aspect of the test for impairment. 

 83.   Consideration was then given by the Panel to public confidence in the profession and the Regulator if a finding of impairment was not made. It also had regard to the fact that confidence in the Regulator would also be eroded in respect of right-thinking registered professionals if a finding of impairment was not made given the level of dishonesty perpetrated by the Registrant over a prolonged period of time, and the lack of engagement with the regulatory process demonstrated by the Registrant.

84.  The Panel had regard to important public policy issues when considering the public component of impairment, which include the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour. It considered that members of the public and members of the profession would be concerned to learn that a Physiotherapist had been found to have engaged in serious misconduct in relation to a number of patients over a number of years. It determined that public and professional trust and confidence in the profession, professional standards, and the Regulator would be undermined if a finding of impairment was not made. The Panel concluded that the Registrant’s fitness to practise is currently impaired on the basis of the public component as well as the private component. 
   
Decision on Sanction

85.  The Presenting Officer submitted that the Panel had already identified the aggravating and mitigating factors in this matter and therefore he only wished to draw its attention to the need to act proportionately and protect the public.

86.  The Panel reminded itself that each case must be determined on its own merits and therefore the HCPC does not have a tariff of sanctions. It has however adopted a policy in respect of indicative sanctions to aid panels to make fair, consistent and transparent decisions. Clear and cogent reasons should be given by any panel departing from this policy. The purpose of fitness to practise proceedings is not to punish but to:
(a) protect the public by ensuring that registered health care professionals practise to a minimum universal standard;
(b) maintain public confidence in the regulatory process;
(c) protect the reputation of the profession concerned;
(d) act as a deterrent to other registrants.

87.  Article 29 of the Health and Social Work Professions Order 2001 provides that the sanctions available to a panel to protect the public are:
(a) Mediation;
(b) Caution;
(c) Conditions of practice;
(d) Suspension;
(e) Striking off.
Alternatively, a panel may decide that no further action is required. When determining the appropriate level of sanction, panels must be proportionate so that the sanction is proportionate to the circumstances, protects the public in the least restrictive manner and takes account of the wider public interest, striking a proper balance between the rights of the Registrant and the public.

88.  The Panel did not believe that the Registrant had demonstrated either insight or remorse for his conduct and the Panel therefore remained concerned as to his future practice. As a result, it was not appropriate for the Panel to take no action. It noted that there was no outstanding dispute and therefore mediation was also an inappropriate sanction in this matter. It also did not consider a Caution Order to be appropriate given that the behaviour was repeated over a number of years, there was a risk of repetition and there was no evidence to suggest the conduct was out of character.

89.   The Panel therefore moved on to consider whether a Conditions of Practice Order would be appropriate. The purpose of a Conditions of Practice Order is to restrict a registrant’s practice, require the registrant to take remedial action or impose a combination of both. Imposition of a conditions of practice order means that the Panel is satisfied that the Registrant is capable of practising safely and effectively, beyond the conditions, the conditions being remedial or rehabilitative in nature. It noted however that conditions will rarely be effective unless the Registrant is genuinely committed to resolving the issues to be addressed and can be trusted to make an effort to do so. The Policy points out that conditions of practice are unlikely to be suitable where, as in this case, the Registrant has lacked insight and has not accepted the wrongdoing. The Panel considered whether any conditions could be drafted in this case and concluded that it would not be possible to protect the public by the imposition of conditions even if they could be drafted. Further, they did not consider that any conditions would be workable given the dishonest conduct of the Registrant. Accordingly, a Conditions of Practice Order was not an appropriate sanction to impose in this case.

90.   Given that the Panel considered that neither a Caution nor Conditions of Practice Order would provide sufficient public protection, it then considered whether suspension would be appropriate. However, it concluded that a Suspension Order would not afford the public sufficient protection given that there was a risk of repetition and the Registrant appeared to have a dismissive attitude to the serious nature of his misconduct. Further, there was no indication that the Registrant would make any effort to remediate his behaviour during the period of the Suspension Order, or engage in the reviews required for the same.

91.   The Panel determined that the only course of action open to them that would adequately protect the public and maintain confidence in the regulatory process would be an order striking the Registrant from the register. He had demonstrated behaviour, including dishonest conduct, which was serious, deliberate and reckless, failed to engage with the Regulator in accordance with his professional duty and shown no insight or remorse. The Panel was satisfied that any sanction other than striking the Registrant from the register would undermine public and professional confidence in the Regulator. 

Order

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

Notes

Interim Order

92.   Upon the Panel determining the appropriate sanction to be a Striking Off Order, the Presenting Officer requested that the Panel exercise its discretionary power to impose an interim suspension order for the time allowed for appealing against the final disposal order or, if such an appeal is made, whilst that appeal is in progress. He submitted that the Registrant had been made aware of the likelihood of such an application on behalf of HCPC in the event that a sanction of Striking Off was imposed and therefore applied for the consideration of the Interim Suspension Order Application to proceed forthwith in the absence of the Registrant.
 
93.   The Panel received and accepted advice from the Legal Assessor and then considered whether it was appropriate to proceed to hear the Interim Suspension Order Application in the absence of the Registrant. It was satisfied that the Registrant had been notified of the likelihood of such an application when he received the Notice of Hearing dated 12 December 2018, which the Panel had already accepted had been properly served on the Registrant. Although registrants had a right to be in attendance when such applications were to be considered, the Panel was satisfied that the imperative to protect the public from the Registrant’s failings in practise outweighed the Registrant’s right to attend, particularly given the Registrant had not given any indication that he would attend or make representations in the event that the application was adjourned to enable him to attend. It found that it was appropriate for consideration of an Interim Suspension Order to proceed in the absence of the Registrant.

94.   The Presenting Officer submitted that an Interim Suspension Order was applied for on the grounds of public protection and in the public interest based on the risk of repetition of failings as identified by the Panel in its decision. He reminded the Panel that the substantive Striking Off Order it had imposed would not take effect until the time for lodging an appeal had elapsed, or when any such appeal is determined, whichever is the later. Given that the Panel had specifically found that the Registrant poses a risk to the public and imposed the Striking Off Order in the public interest, it would be entirely appropriate for an Interim Suspension Order to also be imposed.

95.   The Panel carefully considered the submissions of the Presenting Officer and the advice provided by the Legal Assessor, which it accepted. They also noted the provisions of the guidance note issued by the HCPTS in respect of Interim Orders. It reminded itself that an interim order may be appropriate where:

-  there is a serious and ongoing risk to service users or the public from the registrant’s lack of professional knowledge or skills; conduct or unmanaged health problems; or
-  the allegation is so serious that public confidence in the profession or the regulatory process would be seriously harmed if the registrant was allowed to remain in practice on an unrestricted basis.

96.   The Panel were mindful that, in imposing a Striking Off Order, it had found that there was an ongoing risk to service users from the actions of the Registrant. The Registrant was aware of the possibility of an Interim Order application and had not made any representations on the same. The factors which led the Panel to impose the Striking Off Order were still pertinent. The Panel had no information as to the current employment, if any, of the Registrant.

97.   Given that the Panel earlier today considered the Registrant’s misconduct to be such that striking off was warranted for the protection of public, it believed that public confidence in the regulatory process would be seriously harmed if the Registrant was allowed to remain in practice on an unrestricted basis pending the substantive Striking Off Order coming into effect. The Panel were unaware whether the Registrant was currently working and without an Interim Suspension Order, there would be no bar to him practicing. Therefore, the Panel determined that it was appropriate and proportionate to impose an Interim Order of Suspension pursuant to Article 31(2) of the Health and Social Work Profession Order 2001 for a period of 18 months to protect the public and otherwise promote the public interest.

Hearing History

History of Hearings for Mr Peter J Fletcher

Date Panel Hearing type Outcomes / Status
04/02/2019 Conduct and Competence Committee Final Hearing Struck off
29/03/2017 Conduct and Competence Committee Final Hearing Adjourned