Mrs Sarah N Fisher

Profession: Physiotherapist

Registration Number: PH36186

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 26/07/2019 End: 17:00 26/07/2019

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

On 17 July 2018, you received a conditional caution from Guildford Police for the following offence:

1. Fraud by abuse of position
2. By reason of your caution, as set out in paragraph 1, your fitness to practise as a physiotherapist is impaired.

Finding

Preliminary Matters

Service of Notice

1.The Panel had information before it that Notice of today’s hearing dated 30 April 2019 was sent to the Registrant’s address on the register on the same date by first class post. The Panel accepted the advice of the Legal Assessor and was satisfied that service had been effected in accordance with Rules 3 and 6 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules).

Proceeding in the Registrant’s Absence

2.Ms Sheridan, on behalf of the HCPC, applied for the Panel to proceed today. Ms Sheridan referred to an email dated 17 June 2019 from the Registrant’s legal representative which states as follows:

“I write on behalf of the Registrant to advise that she intends no disrespect to the HCPC or any HCPTS Panel but she will no longer take part in any HCPC proceedings and I am not instructed to make any representations on her behalf.

This includes the final hearing listed for 26 July 2019. The Registrant does not object to the hearing proceeding in her absence”

3.Ms Sheridan also referred to a telephone call with the Registrant’s legal representative on the morning of today’s hearing in which he confirmed that he remained instructed, and reiterated that he had no submissions to make to the Panel. Ms Sheridan submitted that the Registrant had voluntarily absented herself and that an adjournment would be unlikely to result in her attendance. Ms Sheridan submitted that the public interest in expeditiously dealing with this case should be given effect. 

4.The Panel took into account the HCPTS Practice Note entitled “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor. The Panel was aware that the discretion to proceed in the absence of a Registrant should be exercised with the utmost care and caution. The Panel was of the view that the Registrant has clearly indicated, through her lawyer, that she will not be attending. There is no indication that an adjournment would secure the Registrant’s attendance at a future date on the basis of this position. The Panel took into account that the potential disadvantage to the Registrant if it were to proceed. However, taking into account the position taken by the Registrant, the Panel was satisfied that it is in the public interest, as well as being fair to the Registrant, for today’s hearing to proceed expeditiously.


5.The Panel therefore decided to proceed today.

Background

6.The Registrant is a registered Physiotherapist. The Registrant was a trustee of a charity, Friends of Beacon (“the charity”), for approximately 20 years. The charity helps support funding for non-core work, including end of life care and assisting people remain in their own homes for longer at the end of their lives.

7.The Registrant had access to a debit card and the financial accounts of the charity during the time she was a trustee. In November 2017 a number of irregular financial transactions were noticed by the charity and it was discovered that the Registrant had made a number of fraudulent transactions. She had used the charity debit card to pay off her credit card debts as well as make other purchases.  

8.The Registrant was interviewed by the police, made full admissions, and was given a conditional police caution on 17 July 2018. The conditional caution document states that the total sum taken by the Registrant was £58,113.

Decision on Facts

9.The Panel was aware that the burden of proof lies on the HCPC entirely to prove the Allegation to the civil standard, namely the balance of probabilities.

10.The Panel heard the submissions of Ms Sheridan who relied on the conditional caution document.

11.The Panel took into account the HCPTS Practice Note entitled “Conviction and Caution Allegations”, and accepted the advice of the Legal Assessor.

12.The Panel found the Allegation proved on the basis of the conditional caution document which makes clear that the caution was administered at Guildford police station on 17 July 2018, and was signed by the Registrant. The offence referred to in the conditional caution document is Fraud by abuse of position pursuant to the Fraud Act 2006, and the particulars stated are as follows:

“Since 2013 you committed fraud in that, while occupying a position, namely being a trustee, in which you were expected to safeguard, or not to act against, the financial interests of Friends of the Beacon, you dishonestly abused that position intending thereby to make a gain, namely £58,113, for yourself”.

13.The Panel therefore found the facts proved.
 
Decision on Grounds and Impairment

14.Having found the factual particular proved, which, as a caution, forms the statutory ground upon which a finding of impairment may be based, the Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired.

15.The Panel took into account the submissions of Ms Sheridan that the Registrant’s fitness to practise is currently impaired.

16.There were no submissions from the Registrant before the Panel.

17.The Panel accepted the advice of the Legal Assessor who referred to CHRE v (1) NMC (2) Grant [2011] EWHC 927. The Panel took into account the HCPTS Practice Note entitled “Finding that Fitness to Practise is ‘Impaired’”. The Panel was aware that impairment is a matter for its own independent judgment and that public protection and the wider public interest should be considered.

18.In considering the matter of impairment, the Panel considered the police’s report to the Crown Prosecution Service which states that the total that can be shown to have been taken by the Registrant amounts to £58,113.01 between the years 2012 and 2015. It is confirmed that the Registrant made a full admission to the offence. The Panel also noted that the condition is that the Registrant pays the total amount by 30 December 2019.

19.Before the Panel were notes of meetings between the Director of Patient Service of Phyllis Tuckwell (PTHC) Hospice Care and the Registrant on 29 December 2017 and 3 January 2018 as well as notes of the disciplinary hearing on 12 January 2018. The Panel took into account that these documents are not exhibited in a witness statement, but also bore in mind that there has been no objection to their inclusion in the bundle by the Registrant or her legal representative, and was content to take them into account and give them weight. In addition, there is a witness statement made to the police by the Chairman of the charity signed by the witness and dated 5 February 2018. While this is hearsay, the Panel was willing to give it some weight, considering the signed statement of truth attached to it, and the purpose for which it was made.

20.The  Panel considered the Registrant’s full admissions to her employer, PTHC, as set out in the notes of meetings on 29 December 2017 and 3 January 2018. The Registrant was recorded to have been extremely distraught, and openly admitted her actions during those meetings, which the Panel took into account. However, the Panel also noted that the admissions were only made once the charity had become aware of the transactions. The Panel also took into account the notes of the disciplinary hearing, at which it is recorded that the Registrant

 “said that she didn’t’ have a good explanation as to why she had done this. SF had pushed it away and denied it to herself. SF explained that she found it overwhelming and was struggling to understand how she had behaved that way. SF said that she didn’t want to be that person and couldn’t give an adequate explanation…”

21.In the record of the police interview, as well as the notes of the meeting with her employer on 29 December 2017, the Registrant stated that she began by making a genuine mistake when using the charity’s debit card for a purchase for herself, but because she had not been discovered, she continued. In the Panel’s view, there is no evidence from the Registrant of any insight into her wrongdoing, any reflection about it or indeed any real attempt to explain it.

22.In the Panel’s view the Registrant’s actions were serious. She abused a position of trust in relation to a charity which was concerned with assisting the very ill and vulnerable and those who were dying. She did this for personal gain over a number of years. Her actions were premeditated, as seen from the false invoices she created to cover her tracks. Her admissions to her employer and the police were made only after the charity discovered her fraud. The amount she took was substantial.

23.The Panel took into account the questions formulated by Dame Janet Smith in the Fifth Shipman report, as set out in the case of Grant, which are presented in Grant  as a test of impairment and ask whether a practitioner:

a.“has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b.has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

c.has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or

d.has in the past acted dishonestly and/or is liable to act dishonestly in the future."

24.The Panel decided that this is not a matter of risk to patients.

25.Considering the other questions of Dame Janet Smith,  the Panel was of the view that in light of the actions which led to the conditional caution, and taking into account its nature and circumstances, the Registrant was in breach of the following provisions of the HCPC Standards of conduct, performance and ethics (2016):

“9 Be honest and trustworthy Personal and professional behaviour

9.1  You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.”

26.As such the Registrant has brought the profession into disrepute by her actions and breached a fundamental tenet of the profession as a result of her dishonesty.

27.In light of the lack of any evidence of insight, of remorse, reflection or remediation or real explanation shown by the Registrant, the Panel was satisfied that the risk of repetition was high, and therefore the Registrant is  liable in the future to bring the profession into disrepute, to breach fundamental tenets, and to act dishonestly .

28.In light of the Registrant’s conditional caution, and the actions which led to it, the Panel was satisfied that a reasonable well-informed member of the public, with knowledge of all the facts and circumstances, would be gravely concerned if the Registrant were to be allowed to practice without restriction. The Panel was therefore satisfied that the need to uphold proper professional standards and to maintain public confidence in the profession would be undermined if a finding of impairment were not made.

29.The Panel therefore found the Registrant’s current fitness to practise to be impaired on the basis of both the personal and public components.

Decision on Sanction

27.The Panel heard the submissions of Ms Sheridan, read the HCPC’s Indicative Sanctions Policy (ISP), and accepted the advice of the Legal Assessor. The Panel was aware that the aim of any sanction is not to be punitive. Rather, the aim is to uphold the public interest. Sanction is a matter for the independent judgment of the Panel. The Panel took into account the principle of proportionality in coming to its decision on sanction.

28.The Panel identified the following mitigating factors:

i.the lack of any previous regulatory findings against the Registrant;

ii.the Registrant has voluntarily paid £10,000 back to the charity.

29.The Panel identified the following aggravating factors:

i.Large sum of money taken;

ii.a high risk of repetition;

iii.pattern of dishonesty over several years;

iv.premeditated dishonesty;

v.abuse of position which resulted in theft of money intended for the use of a charity to support vulnerable and ill patients at the end of their lives.


30.The Panel was mindful of the lack of any representations or explanation from the Registrant which were submitted for the purpose of these proceedings. As already determined, there is no evidence of insight from the Registrant into her criminal offending nor is there evidence of any attempt to address the wrongdoing.

31.In light of the nature of the dishonesty, and the abuse of the position of trust, the Panel was of the view that the Registrant committed serious dishonesty. It was neither minor or isolated, was premediated and prolonged.

32.The Panel was of the view that mediation is not appropriate in respect of a criminal caution. 

33.The Panel discounted taking no further action because the police caution is too serious for such an outcome, there is a high risk of repetition, and such a decision would not satisfy the public interest in this case.

34.With regard to a caution, the ISP states at para. 101:

“A caution order is likely to be an appropriate sanction for cases in which:

•the issue is isolated, limited, or relatively minor in nature;

•there is a low risk of repetition;

•the registrant has shown good insight; and

•the registrant has undertaken appropriate remediation.”

35.The Panel was of the view that none of these criteria were met in this case.

36.The Panel next considered a Conditions of Practice Order but was satisfied that this would not be appropriate because there are no concerns about the Registrant’s clinical practice and no conditions could be formulated which would address the risk of repetition of the dishonesty in question, or be sufficient to maintain public confidence in the profession and the regulatory process.

37.The Panel next considered a Suspension Order and considered para. 121 of the ISP:

“A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:

•the concerns represent a serious breach of the Standards of conduct, performance and ethics;
•the registrant has insight;
•the issues are unlikely to be repeated; and
•there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings."

38.The Panel has already determined there is a high risk of repetition of the behaviour in question and in light of the Registrant’s lack of engagement with the substantive hearing, she is either unable or unwilling to take the necessary steps to demonstrate insight and remediation. The Registrant’s lack of engagement with this hearing, the level of seriousness of the dishonesty, the lack of evidence of any insight, the lack of indication that the Registrant wishes to continue in her profession, and the ongoing risk of repetition, led the Panel to conclude that Suspension would not be appropriate or sufficient to uphold the wider public interest.

39.The Panel  considered paragraphs 130 and 131 of the ISP

“A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving (this list is not exhaustive):

•dishonesty …

A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:

•lacks insight;

•continues to repeat the misconduct or, where a registrant has been suspended for two years continuously, fails to address a lack of competence; or

•is unwilling to resolve matters.”

40.In the Panel’s view, the Registrant committed serious and deliberate dishonesty, which continued for several years. The Panel took into account the lack of explanation or indeed any submissions from the Registrant in respect of this hearing, the lack of any indication from the Registrant that she wishes to return to continue practising the profession, the lack of any evidence of insight or remediation, as well  as the ongoing high risk of repetition The Registrant is either unable or unwilling to demonstrate insight or remediation. All of these factors led the Panel to decide that any lesser sanction would undermine confidence in the profession concerned or the regulatory process. Striking off is the only way in which the wider public interest can be upheld.

41.In coming to its decision, the Panel took into account the principle of proportionality, and the impact that such a sanction will have on the Registrant’s right to practise her profession, as well as the likely reputational and financial impact. However, the Panel decided that the need to uphold the public interest outweighed the Registrant’s interests in this regard.

42.The Panel therefore decided to impose a Striking Off Order.

Order

The Registrar is directed to strike the name of Mrs Sarah Fisher from the register on the date this order comes into effect.

Notes

Interim Order

Application for an interim order to cover the appeal period

1.The Panel heard an application from Ms Sheridan for an 18 month Interim Suspension Order to cover the appeal period. She submitted that such an order is necessary to protect the public and is in the public interest.

2.The Panel considered the HCPTS Practice Note entitled “Interim Orders” as well as Paragraphs 133-5 of the Indicative Sanctions Policy. The Panel accepted the advice of the Legal Assessor.

3.The Panel decided whether or not hear the application for an interim order in the absence of the Registrant. In deciding this issue, the Panel took into account that the Registrant had been informed, in the Notice of hearing dated 30 April 2019, that if this Panel found the case against her is well founded,  and imposes a sanction which removes, suspends or restricts her right to practise, the Panel may impose an interim order. In addition, the Panel took into account the reasons set out in its earlier decision to commence the hearing in the absence of the Registrant. In the circumstances, and for the same reasons, the Panel determined that it would also be fair, proportionate and in the interests of justice to allow Ms Sheridan’s application.

4.The Panel took into account its previous findings, and adopting its reasons, the Panel came to the conclusion that an interim order is in the wider public interest in order to maintain public confidence in the profession and to uphold proper standards. This is on the basis of the seriousness of the dishonesty, the aggravating features of the case, and the lack of evidence of insight and remediation from the Registrant. Public confidence in the profession and the regulatory process would be seriously harmed if the Registrant were not made subject to an interim order during the appeal period.

5.The Panel was mindful of its decision at the sanction stage that Conditions were not appropriate. The Panel considered that not to impose an Interim Suspension Order would be inconsistent with its finding that a Striking Off Order is required.

6.The Panel recognised that the Panel must take into consideration the impact of such an interim order on the Registrant as part of the principle of proportionality, and must balance the impact on the Registrant with the need to uphold the public interest. In the circumstances of the case, the Panel was satisfied that the need to uphold the public interest outweighed the Registrant’s interests in this regard.

7.The Panel decided to impose an Interim Suspension Order for a period of 18 months, a duration which is appropriate and proportionate to allow any appeal which the Registrant brings, to be concluded.

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

Hearing History

History of Hearings for Mrs Sarah N Fisher

Date Panel Hearing type Outcomes / Status
26/07/2019 Conduct and Competence Committee Final Hearing Struck off
21/05/2019 Conduct and Competence Committee Interim Order Review Interim Conditions of Practice
28/02/2019 Investigating Committee Interim Order Review Interim Conditions of Practice
29/11/2018 Investigating Committee Interim Order Review Interim Conditions of Practice