Mr Peter Branston

Preliminary Matters

Service of Notice

1. The Notice of this hearing was sent to the Registrant on 14 January 2019 at his address as it appeared on the HCPC Register, and by email. The Notice contained the date, time and venue of today’s hearing.

2. The Panel accepted the advice of the Legal Assessor, and was satisfied that Notice of today’s hearing has been served in accordance with Rule 6(1) of the Conduct and Competence Committee Rules 2003 (the “Rules”).

Proceeding in the absence of the Registrant

3. The Panel then went on to consider whether to proceed in the absence of the Registrant, pursuant to Rule 11 of the Rules. In doing so, it considered the submissions of Mr Dite on behalf of the HCPC.

4. Mr Dite submitted that the HCPC had taken all reasonable steps to serve the Notice on the Registrant by registered post and email. He further submitted that the Registrant has engaged with the HCPC to the extent that he had submitted a bundle of documents for placing before the Panel. Mr Dite referred to an email exchange on 18 December 2018 between the HCPTS and the Registrant. In an email sent by the HCPTS, it proposed hearing dates of either 15 – 22 May 2019 or 19 – 26 June. In response, the Registrant emailed: “Do, by all means, proceed in my absence and forward this email to a Panel Chair”. Mr Dite submitted that an adjournment would serve no useful purpose. He reminded the Panel that there was a public interest in this matter being dealt with expeditiously.

5. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the case of R V Jones & Hayward [2002] UKHL 5 and GMC v Adeogba and Visvardis [2016] EWCA Civ 162. He advised the Panel that the Adeogba case reminded it that its primary objective is the protection of the public and the public interest. In that regard, the case of Adeogba was clear that, “where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed”.

6. The Panel was mindful of the need to ensure that fairness and justice were maintained when deciding whether or not to proceed in the Registrant’s absence.

7. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPTS Practice Note entitled “Proceeding in the Absence of a Registrant”. The Panel weighed its responsibility for public protection and the expeditious disposal of the case against the Registrant’s right to be present at the hearing.

8. The Panel was satisfied that all reasonable efforts had been made by the HCPC to notify the Registrant of the hearing.

9. In reaching its decision, the Panel took into account the following:

• The Registrant had submitted documents in support of his defence in anticipation of those being considered by the Panel;

• He had indicated he was content for the hearing to take place in his absence;

• The Registrant had not requested an adjournment;

• There was a public interest in hearings being heard expeditiously;

• Witnesses, including an expert witness, had attended to give evidence.

10. The Panel determined that it was unlikely that an adjournment would result in the Registrant’s attendance at a later date. Having weighed the public interest for expedition against the Registrant’s own interest, the Panel decided to proceed in the Registrant’s absence.

Background

11. The Registrant is registered as a Practitioner Psychologist with an Educational Psychology modality.

12. The Registrant was instructed by FMW Law, the law firm representing Offender A at an upcoming Parole Board hearing, to undertake an assessment of Offender A as an independent expert. The letter of instruction, dated 15 November 2013, requested the Registrant to conduct an assessment, produce a report, and attend the Parole Board hearing “to comment on or explain your findings and to assist the Board in its assessment of whether the public will be safe if Offender A is released following the hearing or whether Offender A is suitable to transfer to Open Prison”. His instructions were also on the basis “that you provide an entirely independent expert opinion.”

13. The Registrant produced a report dated 31 December 2013 after having assessed Offender A for an hour on 19 December 2013. The Registrant attended and gave evidence at an oral hearing of the Parole Board in relation to Offender A on 16 January 2014.

14. Witness SK is a forensic psychologist and was a Specialist Member of the three-person Parole Board panel that sat at the hearing for Offender A on 16 January 2014. The Registrant’s report and his oral evidence at the hearing gave rise to concerns and SK felt the need to make her concerns known to the Director of Business Development at the Parole Board, who in turn made a formal referral to the HCPC on 26 February 2014.

15. The Registrant was instructed as an independent expert by FMW Law again, by a letter of instruction dated 5 November 2014, to undertake an assessment of Offender B for use at her upcoming parole hearing following her recall to prison. The letter of instruction requested the Registrant to, amongst other things, conduct “an assessment of Offender B’s psychological state and how this may or may not present her as a risk to the public if she is re-released”. The letter stated that the Registrant’s report would be submitted to the Parole Board and the Registrant would attend the hearing.

16. The Registrant produced a report dated 7 November 2014, having assessed Offender B for two hours on 5 November 2014. He then attended and gave evidence at an oral hearing of the Parole Board in relation to Offender B on 19 November 2014.

17. SD is a forensic psychologist who, at the time, was employed by the Prison Service. She completed a risk assessment of Offender B to assist the Parole Board in making its decision as to Offender B’s suitability for release. She also produced a report, attended, and gave evidence at an oral Parole Board hearing on 19 November 2014.

18. Because of concerns about the Registrant’s report and oral evidence, following the hearing SD looked up the Registrant on the HCPC Register. She noted that his registration was marked ‘educational modality’. She raised her concerns with her line manager and subsequently made a formal referral to the HCPC.

19. Dr JC, a forensic psychologist, was instructed by the HCPC as an expert witness. She produced a report dated 9 January 2017. In it, she commented on the Registrant’s two reports. She also produced an addendum report dated 8 August 2017 after having been provided with the Registrant’s CV. She produced an additional report dated 3 August 2017 in response to the representations of the Registrant.

20. Dr JC’s report contained a number of criticisms of the Registrant’s reports as set out in the factual particulars of the HCPC allegation. She concluded, in relation to the Registrant’s CV, that: “there is nothing in the CV such as postgraduate qualifications or training that evidences expertise in forensic psychology, most particularly the risk assessment of adult offenders, which is the key issue in this case”.

21. The Registrant denied the allegation. He submitted an extensive defence bundle. It was his case, and he stressed in his written response to the allegation, that he was not asked to undertake a risk assessment of either offender. He stated that he adequately addressed the issues asked of him in his letters of instruction and that the methodology used by him was appropriate. He denied that he was acting outside the scope of his area of expertise and asserted that he had suitable qualifications and experience to undertake his reports. He disputed that his reports were for the Parole Board, maintaining that they were only aimed at helping the offenders’ solicitors to present their clients’ interests.

Decision on Facts

Assessment of witnesses

22. The Panel firstly considered the credibility of the witnesses who had given live evidence.

23. The Panel first heard from witness SD, a Registered Psychologist, who, at the relevant time, was employed by the Prison Service as a Registered Forensic Psychologist. She gave evidence as to the inadequacies of the Registrant’s report and his oral evidence in relation to Offender B. The Panel considered that her evidence was measured and balanced and not prone to exaggeration. She was a credible, consistent, and reliable witness.

24. The Panel also heard from witness SK, a Specialist Member of the Parole Board. She used to be employed as a Forensic Psychologist. She was a member of Parole Board panels at oral and paper hearings for ‘Indeterminate sentences for Public Protection’ (IPP) and life-term prisoners, to assess risk and suitability for progression. She gave evidence in relation to Offender A’s Parole Board hearing, specifically in relation to the Registrant’s report, the methodology used, and the manner in which he gave evidence to the Parole Board. The Panel considered her to be a measured, consistent, credible and reliable witness. Her evidence, the Panel concluded, was neither prone to malice nor exaggeration.

25. The Panel also heard evidence from witness Dr JC, an expert witness and Consultant Forensic and Clinical Psychologist. She produced a detailed report, dated 9 January 2017, which concluded that the standard of risk assessment in the Registrant’s reports was exceptionally poor. She commented on the Registrant’s CV in a further statement dated 8 August 2017, including the Registrant’s level of expertise in forensic psychology and the risk assessment of adult offenders. The Panel found her to be an impressive witness who gave informed, clear, reasoned and credible evidence.

26. Whilst the Panel drew no adverse inferences against the Registrant by reason of his non-attendance at this hearing, the Panel took into account that his assertions contained in his defence bundle could not, as a result, be subject to the same level of scrutiny as the HCPC’s witnesses, who attended the hearing.

27. The Panel carefully considered the weight, credibility and reliability to be attached to the Registrant’s written submissions. In doing so the Panel bore in mind that, in a number of important respects, his submissions were inconsistent with the documentary evidence supplied. This, in the view of the Panel, undermined the credibility and reliability of the Registrant’s position generally. The following is a non-exhaustive list of such examples:

• In his written submissions, at paragraph 2.9, the Registrant stated “I was not asked to undertake a risk assessment”. However, in the letter of instruction to the Registrant from FMW Law, dated 15 November 2013, he was specifically asked to comment “on the basis of your findings in relation to personality, neurological and psychological traits (or disorders, if any) whether Offender A is suitable to be released now without posing unacceptable risk to the public” and “any other matters you are able to address and you consider relevant to the assessment of Offender A’s risk to the public”.

• In the same letter of instruction, the Registrant was informed that he was “instructed on the basis that you provide an entirely independent expert opinion.” It further made specific reference to “your role as an independent expert”. The Registrant was specifically informed that a report was required “for the purpose of Offender A’s hearing before the Parole Board”, which the Registrant was informed he may be required to attend “to comment on or explain your findings and to assist the Board in its assessment of whether the public will be safe…” This was inconsistent with the Registrant’s written submission that he was “simply to comment, where I thought it would be in the Solicitor’s client’s interest, so to do. This was not a report for the Parole Board. It was for the Solicitor who commissioned it and was aimed to help him in presenting his client’s interests…I am not and was not employed by or instructed to assist the Parole Board with its function and this misconception has been an underlying issue since these proceeding [sic] were instituted”.

The Panel considered that, whilst the instruction for the Registrant’s report did not emanate directly from the Parole Board, the purpose of the report was unequivocally set out to the Registrant.

28. In the circumstances the Panel concluded that, given its assessment of the HCPC witnesses as credible and reliable witnesses, where there was a conflict between their evidence and that of the Registrant, the evidence of Dr JC and the other HCPC witnesses was to be preferred.

Panel’s Approach

29. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything and the individual particulars of the allegation could only be found proved if the Panel was satisfied that that was the case on the balance of probabilities.

30. In reaching its decision, the Panel took into account the oral evidence of the HCPC witnesses, together with all the documentary evidence provided to it, including the Registrant’s submissions, as well as the oral submissions made by Mr Dite on behalf of the HCPC.

31. The Panel also accepted the advice of the Legal Assessor, which, together with Mr Dite’s submissions, are a matter of record.

Particular 1

32. The Panel found the facts of particular 1 proved for the following reasons.

33. The Panel accepted the evidence of SK. She stated that the Registrant did not demonstrate his experience or training in forensic psychology and that such experience or expertise was not evident from the Registrant’s CV. The Panel noted that both SD and Dr JC formed the same conclusion in this regard. She stated that the Registrant was unable to demonstrate how he was competent to assess personality disorder.

34. SK concluded, and the Panel accepted, that the Registrant made a judgement when assessing Offender A despite a low score indicating someone unwilling or unable to be open and honest. She stated that, this being the case, the assessment could not be meaningfully interpreted. She also informed the Panel that the Registrant was critical of the International Personality Disorder Examination (IPDE). She stated that, whilst training in the tool was not essential, it would be difficult to provide an expert opinion about its validity or usefulness in the absence of such training.

35. Dr JC stated that, for the Registrant to undertake an assessment on personality disorder, he would had to have undertaken one or more of the following:

• Specialist forensic supervision to develop relevant skills;

• Attended relevant training / conferences;

• Previous employment in an adult criminal justice setting;

• Substantive research in a relevant field, such as personality disorder, risk assessment, or violence.

36. She confirmed in her oral evidence, and the Panel accepted, that there was nothing in the Registrant’s CV to demonstrate that he had developed expertise through one or more of the above methods. She stated that the Registrant’s experience in Occupational Psychology would not be relevant to the task in hand. She considered that there was no reason why a Practitioner Psychologist with an educational modality could not use the IPDE subject to having received the necessary training and gained relevant work experience. She stated that the Registrant was critical of the IPDE as it was based on a self-reporting questionnaire, yet the Registrant had relied on other such self-reporting tools in his methodology.

37. The Panel considered the submissions of the Registrant that his experience as an Occupational Psychologist qualified him to undertake the assessment in question. However, whilst noting that in 2017 the Registrant stated that he had undertaken over 200 personality disorder assessments, the Panel was not satisfied that this sufficiently demonstrated he was suitably qualified so to do.

38. The Panel therefore found the facts of particular 1 proved.

Particulars 2a, 2b, 2c and 2d

39. The Panel found the facts of particular 2 proved in their entirety for the following reasons.

40. The Panel accepted the evidence of SK that the Registrant demonstrated a limited understanding about open conditions and that the Registrant did not have a full understanding of the risks involved.

41. The Panel also took into account and accepted the expert evidence of Dr JC. She stated that a reasonable risk assessment should identify the matters that form the basis of particulars 2a – d, and she highlighted that these areas were not included in the Registrant’s report. She concluded that: “the Registrant has not presented an adequate account of the historical risk factors, the change in risk profile over time; he has not adequately analysed the account of the index offence, why it occurred, or how a therapeutic community might address any outstanding risks”.

42. The Panel took account of the Registrant’s submissions. Having done so, the Panel concluded that the Registrant wholly misunderstood his role in the preparation of his report, the remit of which was unequivocally identified in the letter of instruction from FMW Law.

43. In all the circumstances, the Panel found particulars 2a – d proved. Having done so, the Panel found that the Registrant did not conduct and/or record an appropriate assessment and/or adequate risk assessment of Offender A.

44. It therefore found the facts of particular 2 proved in their entirety.

Particular 3a

45. The Panel found the facts of particular 3a proved for the following reasons.

46. Dr JC stated that the Registrant administered two of the four sub-tests of the WAIS-IV, which comprise the verbal comprehension index. She concluded, and the Panel accepted, that the presentation of the Registrant’s rationale, the administration of the tests, and the analysis of the results did not meet reasonable professional standards. The Panel noted the contents of the Registrant’s report, in that it did not demonstrate the methodology used and it lacked specificity in the test results.

47. The Panel therefore found the facts of particular 3a proved.

Particular 3b

48. The Panel found the facts of particular 3b proved for the following reasons.

49. In her oral evidence, Dr JC stated that whilst intellectual ability was not a significant factor in Offender A’s case, self-esteem, locus of control, impulsivity, and concentration had not been considered. She stated that she would have been far more cautious about the test scores and she identified the limitations in only having undertaken two verbal tests, especially with the history of brain injury and possible personality change.

50. The Panel took into account the Registrant’s submissions. However, having considered the evidence of Dr JC, which the Panel preferred for the reasons set out above, it did not accept that the assessment adopted by the Registrant was standard procedure. The Panel noted that the Registrant provided no explanation for not reporting the test scores or why only two tests were undertaken.

51. The Panel therefore found the facts of particular 3b proved.

Particular 4a

52. The Panel found the facts of particular 4a proved for the following reasons.

53. The Panel noted and accepted the evidence of Dr JC, in that she did not identify from the Registrant’s report any particular questionnaire for empathy and that nothing was reported in the section where tests were presented. In her oral evidence, Dr JC stated that the Registrant had not identified a test or why he had chosen to refer to “Zero Degrees of Empathy”, a book by Simon Baron-Cohen which was mainly concerned with Autism.

54. The Panel took account of the Registrant’s submissions, in that reference was made to the book. However, in the Panel’s view, a mere reference to a publication was not a reference to a test, and did not amount to an adequate reference to a questionnaire for empathy.

55. The Panel therefore found the facts of particular 4a proved.

Particulars 4b(i), 4b(ii) and 4b(iii)

56. The Panel found the facts of particulars 4b(i), 4b(ii) and 4b(iii) proved for the following reasons.

57. The Panel noted and accepted the evidence of Dr JC. She stated that the test results should indicate which normative data was being considered (for example, the general population or other offenders). She further stated that when tests such as the ICI and BSI are used, then the findings for each individual factor within them should be mentioned. She further identified that there was no analysis within the report of the questionnaire findings, or the way in which they concurred or contrasted with the known documented history of Offender A.

58. The Panel therefore found the facts of particulars 4b (i), (ii) and (iii) proved.

Particular 5

59. The Panel found the facts of particular 5 proved for the following reasons.

60. The Panel had regard to the evidence of Dr JC, which it accepted. She was unable to identify any clear conclusions or recommendations in the Registrant’s report. She stated that, whilst he had identified limitations, there was no clear detailing of the Registrant’s view on risk, how it had changed, or whether Offender A should progress to conditions of lesser security. In summary, Dr JC concluded that “the Registrant does not provide the necessary recommendations regarding suitability for release or transfer to open conditions, as requested.” The Panel also noted the lack of any recommendation within the Registrant’s report that would assist the Parole Board.

61. The Panel carefully considered the Registrant’s submissions and, in doing so, noted that he did not deny not making any specific recommendations.

62. The Panel therefore found the facts of particular 5 proved.

Particular 6

63. The Panel found the facts of particular 6 proved for the same reasons as set out in relation to particular 1.

64. In addition, the Panel noted the evidence of SD, who, having considered the Registrant’s CV, was of the view that the Registrant lacked the necessary experience for the role for which he was tasked. She also noted that the Registrant had not used a Standard Professional Judgment Tool for his assessment, which she considered to be “standard” and “good practice”. SD also considered that the Registrant had not provided reasoned evidence for his recommendation, either in his report or in his oral evidence to the Parole Board.

65. SD also stated that she was concerned about the Registrant’s lack of forensic training and knowledge in relation to forensic risk assessment, and that this had impacted on Offender B.

66. The Panel considered that this assertion was corroborated by the Registrant’s report to the Parole Board, in that at paragraph 3.1 he stated: “I am not sure of the factors that would influence or determine the decision the Parole Board will come to…”

67. The Panel also considered the evidence of Dr JC in relation to Offender B. Dr JC stated that she was concerned at the quality of the risk assessment, in that there should have been a more detailed account of the nature of any outstanding risks and likely risk scenarios, including potential for serious harm. She concluded that there was no indication from the report that the Registrant had sufficient expertise in the area of risk assessment.

68. She considered the Registrant’s CV and, having done so, further concluded that despite the Registrant’s reference in his CV to “Criminal Law Assessment”, he lacked the necessary experience or expertise required for the role in which he was instructed.

Particular 7a

69. The Panel found the facts of particular 7a proved for the following reasons.

70. The Panel accepted the evidence of Dr JC that the report lacked consideration of key risk issues. Dr JC identified a failure to reference any history of violence, the nature of the index conviction, or other risk concerns such as alcohol abuse and recall to prison as particular concerns. She stated that there was no comment in the change of risk profile over time, or likely future risk scenarios. As such, she concluded, the risk assessment was inadequate.

71. The Panel therefore found the facts of particular 7a proved.

Particular 7b

72. The Panel found the facts of particular 7b proved for the following reasons.

73. The Panel accepted the evidence of Dr JC. She identified the lack of likely future risk scenarios and, given Offender B’s history, considered that reference should have been made to Offender B’s potential for violence and relapse into alcohol use. In the absence of such information, Dr JC concluded that the risk assessment was inadequate.

74. The Panel therefore found the facts of particular 7b proved.

Particular 7c

75. The Panel found the facts of particular 7c proved for the following reasons.

76. The Panel accepted the evidence of Dr JC, having considered the contents of the Registrant’s reports. She identified the lack of reference to the context of the assessment, namely in relation to the index offence and the sentence that Offender B had received. In the absence of such information, Dr JC concluded that the risk assessment was inadequate.

77. Dr JC also identified the absence of consideration of other key issues; for example, any reference to a history of violence, the nature of the index conviction, alcohol misuse, and the prison recall.

78. Dr JC concluded that the standard of risk assessment was “exceptionally poor.”

79. The Panel therefore found the facts of particular 7c proved.

Particular 8a

80. The Panel found the facts of particular 8a proved for the following reasons.

81. Having considered the contents of the Registrant’s report, the Panel found the facts of particular 8a proved. The Panel noted the absence of any reference in his report to Offender B’s ability to read the questionnaires.

82. The Panel therefore found the facts of particular 8a proved.

Particular 8b

83. The Panel found the facts of particular 8b not proved for the following reasons.

84. The Panel noted that there was no evidence before it as to whether a number of the tests in question had separate norms for males and females. The Panel noted that the Registrant did compare Offender B’s score with what most women score on one test. The Registrant further stated in his written submissions that there is no gender-based normative data on the WAIS or other psychometric tests he administered.

85. In the absence of evidence to the contrary, the Panel found the facts of particular 8b not proved.

Particular 9

86. Having considered the contents of the Registrant’s report, the Panel found that the Registrant only administered three sub-tests of the psychological assessment tool WAIS-IV.

Particular 9a

87. The Panel found the facts of particular 9a proved for the following reasons.

88. The Panel noted that the Registrant’s report did not contain a description of the sub-tests used. In Dr JC’s additional report dated 3 August 2017, prepared following sight of the Registrant’s responses to the allegations, she stated that the Registrant should have set out a brief and non-technical explanation for his choice of tests within the original report.

89. The Panel therefore found the facts of particular 9a proved.

Particular 9b

90. The Panel found the facts of particular 9b proved for the following reasons.

91. Dr JC stated in her additional report that the Registrant should have set out a brief and non-technical explanation of any impact his application of the sub-tests would have on the results which were pro-rated, especially as he had not identified which sub-tests he used. However, the Registrant had not done so.

92. The Panel therefore found the facts of particular 9b proved.

Particular 9c

93. The Panel found the facts of particular 9c proved for the following reasons.

94. The Panel accepted the evidence of Dr JC, who stated in her report that the Registrant’s comments regarding the link between cognitive ability and recidivism were inadequate and inappropriate. She stated that his comments were “ill-judged and misleading”. He should have laid out the variables implicated in the risk profile before commenting on any possible link between cognitive function and reoffending. She stated in her additional report that such a link was not a statement now recognised by most professionals in the field. This led her to conclude that the Registrant did not have sufficient knowledge of the current evidence base and the recommended good practice regarding risk assessment.

95. The Panel therefore found the facts of particular 9c proved.

Particular 10

96. The Panel found the facts of particular 10 proved for the following reasons.

97. The Panel considered the contents of the Registrant’s report and the evidence of Dr JC in relation to its contents. The Panel noted that the Registrant’s report did not reference which risk issues would be addressed by the counselling he had recommended.

98. The Panel therefore found the facts of particular 10 proved.

Particulars 11a, 11b, and 11c

99. The Panel found the facts of particulars 11a, 11b, and 11c proved for the following reasons.

100. The Panel considered the contents of the Registrant’s report and noted that, as a matter of fact, it did not address the relevant factors. In addition, the Panel noted Dr JC’s conclusions that: “The Registrant does not identify the likely risk scenarios that might relate to future drinking, relationships or violence; he does not consider the likely compliance with probation supervision give [sic] Offender B’s history of recent recall to prison”, all of which she considered to be “highly relevant risk issues. In my view, the Registrant does not lay out the arguments to support his conclusions in a cogent and professional manner”.

101. The Panel therefore found the facts of particulars 11a, 11b, and 11c proved.

Decision on Grounds

102. On the basis of the facts found proved, the Panel went on to consider whether the Registrant’s conduct amounted to misconduct or a lack of competence. It took into account the submissions made by Mr Dite on behalf of the HCPC.

103. In considering this matter, the Panel exercised its own judgement. The Panel also took into account the public interest, which includes protection of the public, maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour.

104. The Panel considered whether the facts found proved amounted to misconduct. It noted that not all breaches of the HCPC’s Standards of Performance, Conduct and Ethics need to amount to a finding of misconduct.

105. Mr Dite invited the Panel to bear in mind the explanation of that term given by the Privy Council in the case of Roylance v GMC (No.2) [2000] 1 AC 311, where it was stated that:

“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. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”

106. In Nandi v GMC [2004] the Court referred to Roylance v GMC [1999], where the Court described misconduct as “a falling short by omission or commission of the standards of conduct expected among medical practitioners, and such falling short must be serious” such that it would be “regarded as deplorable by fellow practitioners”.

107. Mr Dite submitted that the Registrant’s conduct in acting outside his area of expertise in relation to risk assessments of prisoners, and the seriousness of the consequences of Parole Board hearings, marked a serious departure from the standards expected of a registered Practitioner Psychologist, and was sufficiently serious to amount to misconduct.

108. He further submitted that the Registrant’s conduct had the potential to impact adversely on the reputation of the profession.

109. He invited the Panel to conclude that the Registrant had breached standards 5 and 6 of the HCPC Standards of Conduct, Performance and Ethics (2012):

5 you must keep your professional skills and knowledge up to date;

6 you must act within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner.

110. He further submitted that the Registrant’s actions breached Standards 1a.6, 2b.1 and 2b.2 of the HCPC Standards of Proficiency for Practitioner Psychologists (2012):

1a.6 be able to practise as an autonomous professional, exercising their own professional judgment

be able to assess a situation, determine the nature and severity of the problem and call upon the required knowledge and experience to deal with the problem

know the limits of their practice and when to seek advice or refer to another professional

2b.1 be able to use research, reasoning and problem solving skills to determine appropriate actions

2b.2  be able to draw on appropriate knowledge and skills in order to make professional judgements.

111. So far as the statutory ground of lack of competence was concerned, Mr Dite submitted that the standard of competence against which the Registrant should be judged was that which was relevant to the post to which he was appointed. Lack of competence, Mr Dite submitted, was different from negligence in that it referred to a standard of competence that was unacceptably low by reference to a fair sample of the Registrant’s work.

112. The Panel heard and accepted the advice of the Legal Assessor, which included reference to the cases of: Roylance v General Medical Council (No 2) [2000] 1 A.C. 311, Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) and Cohen v GMC [2008] EWHC 581, Remedy UK v GMC [2010] EWHC 1245, Royal College of Veterinary Surgeons v Samuel [2014] UKPC 13, Calhaem v General Medical Council [2007] EWHC 2606 (Admin) and Holton v GMC [2006] EWHV 2960 (Admin).

113. The Panel adopted a two-step process in its consideration. Firstly, the Panel considered whether the facts found proved amounted to misconduct or a lack of competence. Secondly, and only if the facts proved were found to amount to misconduct or a lack of competence, the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired as a result of that misconduct or lack of competence.

114. The Panel carefully considered all the evidence and submissions presented to it and considered the facts of the case in the round.

115. Given the Panel’s findings in relation to the facts found proved, it concluded that the Registrant breached standards 5 and 6 of the HCPC’s Standards of Conduct, Performance and Ethics. However, the Panel was mindful that a finding of misconduct does not necessarily follow as a result.

116. The Panel carefully considered the seriousness of the Registrant’s failings. It noted that Dr JC identified a number of areas in the Registrant’s reports which demonstrated poor practice and she concluded in respect of Offender A that: “Overall, I would consider these issues to indicate that the Registrant was acting outside his scope of expertise in relation to personality disorder and the risk assessment of adult offenders; and that his handling and reporting of this assessment fell significantly below that expected of a reasonably competent Practitioner Psychologist.” In her oral evidence, she referred to the Registrant’s failings in assessment of risk and personality disorder as “dangerous.”

117. In respect of the Registrant’s report for Offender B, Dr JC concluded that: “the standard of risk assessment in this report is exceptionally poor. In the absence of any information regarding the Registrant’s background experience, this seems to suggest that he is working outside his scope of expertise in relation to the risk assessment of adult offenders. This risk assessment element falls significantly below that expected of a reasonably competent Practitioner Psychologist”.

118. The Panel also identified the following:

• That the information contained in the Registrant’s report had the potential to determine whether Offender A, a violent offender, and/or Offender B, also a violent offender who had been recalled to prison, might be released from custody with the potential risk to the public that might follow;

• The Registrant had twice acted outside his area of expertise.

119. The Panel concluded that the following particulars, whilst amounting to poor practice, were not individually or collectively so serious a departure from the standards expected of a Practitioner Psychologist as to be capable of amounting to misconduct:

• 3a;
• 4a;
• 4b(i);
• 4b(ii);
• 8a;
• 9a; and
• 9b.

120. However, the Panel did conclude, in respect of the following particulars found proved, that the Registrant’s conduct and subsequent breaches of the HCPC’s Standards of Conduct, Performance and Ethics, both individually and collectively, marked a serious departure from the standards expected of a registered Practitioner Psychologist:

• 1;
• 2;
• 3b;
• 4b(iii);
• 5;
• 6;
• 7;
• 9c;
• 10; and
• 11.

121. The Panel considered whether the Registrant’s failings amounted to misconduct or lack of competence, and concluded that those particulars could properly be categorised as misconduct. The Panel was satisfied that the Registrant would have been aware that he was acting outside his area of expertise and knew that he was not trained in forensic psychology or otherwise appropriately experienced. Having carefully considered the advice received from the Legal Assessor, the Panel found that the Registrant’s behaviour amounted to misconduct. For the avoidance of doubt, the Panel made no finding of a lack of competence.

Decision on Impairment

122. The Panel went on to decide whether, as a result of his misconduct, the Registrant’s fitness to practise is currently impaired. In doing so, it had regard to all the evidence presented in this case and the submissions of Mr Dite. It heard and accepted the advice of the Legal Assessor and took into account the HCPTS Practice Note on “Finding that Fitness to Practise is ‘Impaired’”.

123. Practitioner Psychologists are expected at all times to act in a professional manner. They must make sure that their conduct at all times justifies both service users’ and the public’s trust in the profession. In this regard, the Panel considered the judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision. In paragraph 74, she said:

“In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”

124. Mrs Justice Cox went on to say in Paragraph 76:

“Do our findings of fact in respect of the doctor’s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:

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 …”

125. Given its findings regarding ‘seriousness’, the Panel considered that limbs a, b and c were engaged by the Registrant’s past actions.

126. Whilst the Panel considered that the Registrant’s failings were capable of remediation, it considered that the Registrant had demonstrated no insight, nor was there any evidence of remediation. The Panel also noted the contents of the concluding paragraph of a letter from the Registrant to the HCPC dated 13 August 2016. In it, the Registrant stated: “As indicated I will not be renewing my registration with HCPC in 2017. I am not practising as an Educational Psychologist. I describe myself as a Consultant Psychologist and there is no HCPC title for that position”. The Panel concluded that, far from demonstrating that the Registrant was willing to confront and address his failings, this suggested his intention was to avoid HCPC regulation altogether. In addition, in correspondence dated July 2017, the Registrant stated that he had conducted over 200 adult psychological assessments in the past three years alone. However, in September 2018 he wrote “I now restrict my work to working with assessing children and adolescents and have done so for some years”, which appears to be contradictory.

127. In all the circumstances, the Panel concluded that there remained a significant risk of the Registrant’s misconduct being repeated in similar circumstances. Should that occur, the Panel considered that there remained an ongoing risk of harm to the public, for the reasons set out above. The Panel therefore determined that a finding of impairment was necessary on public protection grounds.

128. The Panel also took into account the overarching objectives of the HCPC to protect, promote and maintain the health, safety, and wellbeing of the public and patients, and to uphold and protect the wider public interest, which includes promoting and maintaining public confidence in the Practitioner Psychologist profession and upholding the proper professional standards for members of the profession. The Panel considered that, given the Registrant’s repeated misconduct, the potential significant impact on the public, and the lack of demonstrable insight and remediation, public confidence in the profession would be undermined if a finding of impairment were not made in all the circumstances.

129. Having regard to all of the above the Panel found that, by reason of his misconduct, the Registrant’s fitness to practise is currently impaired on both the personal and public components of impairment.

Decision on Sanction

HCPC submissions

130. Mr Dite made submissions to the Panel on sanction. He referred to the HCPC Indicative Sanctions Policy (ISP) and reminded the Panel it ought to start from the least restrictive sanction, bearing in mind the need to act proportionately. Mr Dite submitted that the Panel was also required to consider the Registrant’s lack of insight.

131. Mr Dite reminded the Panel that its role was not to punish the Registrant but to protect the public and the public interest. It was, he submitted, an exercise in addressing public safety and managing the risk to those who use the Registrant’s services. He submitted that the Panel should have regard to the wider public interest, the deterrent effect of any sanction, the reputation of the profession, and confidence in the regulatory process. He set out the available sanctions open to the Panel, reminding it that it should consider these in an ascending order of seriousness, not imposing any sanction more severe than was necessary to achieve its objective. In doing so, the Panel should balance the public interest with the Registrant’s interests.

132. Mr Dite submitted that a Caution Order would not address the risks identified by the Panel. He also referred the Panel to the relevant paragraphs of the ISP it should consider when determining whether a Conditions of Practice Order, a Suspension Order, or a Striking Off Order were appropriate. He submitted that, in reaching its decision, the Panel should be mindful of its finding that the Registrant had not demonstrated meaningful insight or taken demonstrable steps to address his failings.

133. He invited the Panel to take into account any aggravating and mitigating factors.

134. No submissions regarding sanction had been made by the Registrant.

Panel’s Decision

135. The Panel accepted the advice of the Legal Assessor, who referred it to the ISP. He reminded the Panel that it should consider the issue of sanction in ascending order, and to apply the least restrictive sanction necessary to protect the public and the public interest. It should also consider any aggravating and mitigating factors and bear in mind proportionality. He reminded the Panel that the primary purpose of imposing a sanction was protection of the public and the public interest, and that there was a need to balance those interests with the interests of the Registrant.

136. The Panel considered all the information before it. In doing so, the Panel identified the following aggravating factors:

• The Registrant repeated his misconduct;

• Importantly, the Registrant’s failings posed a high risk of harm to the public given the potential consequences of prisoner release;

• The Registrant showed no understanding of the importance of working within his scope of practice and expertise;

• The Registrant has not demonstrated any meaningful insight into his failings, notwithstanding that the events in question occurred some five years ago;

• The Registrant has indicated that he wishes to continue practising as a Consultant Psychologist as a means of avoiding HCPC regulation without demonstrating that he has addressed his failings;

• He demonstrated a lack of understanding of the role of the expert.

137. The Panel identified the following mitigating factors:

• In a career spanning 50 years, there have been no previous adverse regulatory findings against the Registrant;

• He has engaged in the regulatory process to the extent that he has made detailed submissions for putting before the Panel.

138. The Panel considered that the Registrant has not demonstrated any meaningful understanding of the impact of his behaviour on the public or on the reputation of the profession. As such, the Panel was not satisfied that he appreciates why his conduct was inappropriate.

139. The Panel approached the issue of sanction starting with the least restrictive first, bearing in mind the need for proportionality. It considered that taking no further action would neither reflect the nature and gravity of the misconduct nor restrict the Registrant’s ability to practise in circumstances where an ongoing risk to the public has been identified. The Panel therefore concluded that taking no action would not be adequate given the wider public interest of maintaining confidence in both the profession and the regulatory process. Such an outcome was therefore neither appropriate nor proportionate in the circumstances.

140. The Panel considered mediation, but having had due regard to the ISP, considered that this was not an appropriate outcome given the facts of this case.

141. The Panel then considered whether to impose a Caution Order and had regard to paragraphs 28 – 29 of the ISP. However, it considered this to be inappropriate for the same reasons for discounting taking no further action. The misconduct found proved was not minor in nature, the Registrant had not demonstrated any meaningful insight into his failings, and the Panel has identified that there remains a risk of repetition of his misconduct. Mindful that a Caution Order would not restrict the Registrant’s practice, it concluded that such a sanction would neither be appropriate nor sufficient to protect the public or the public interest.

142. The Panel next considered a Conditions of Practice Order. It had regard to paragraphs 30 – 38 of the ISP. The allegation found proved is serious and relates to repeated failings by the Registrant. In these circumstances, and given the lack of demonstrable insight, the Panel did not consider that a Conditions of Practice Order would be an adequate or proportionate sanction and would not satisfy the public interest or public protection concerns. The Panel considered that it could, in theory, devise realistic, proportionate, or appropriate conditions that would address the misconduct identified and the risk the Registrant posed. However, the Panel also bore in mind those matters referred to at paragraph 126 above in the light of paragraph 33 of the ISP. The Panel is neither satisfied that the Registrant is genuinely committed to resolving the issues conditions might seek to address, nor that he can be trusted to make a determined effort to do so. As a result, the Panel concluded that imposing a Conditions of Practice Order would be impracticable and unworkable.

143. The Panel next considered the sanction of Suspension. The Panel bore in mind that this would be an appropriate sanction to impose where, even though the allegation is serious, it is unlikely to be repeated and, hence, a Striking Off Order is not merited. The Panel bore in mind paragraph 41 of the ISP, which states: “If the evidence suggests that the Registrant will be unable to resolve or remedy his failings then striking off may be the more appropriate option”. The Panel was mindful that the misconduct found proved was serious and had the potential to be dangerous.

144. The Panel, having found no significant evidence of remediation and that the Registrant has very limited insight, concluded that in light of those findings, there is little, if anything, to suggest that the Registrant is able to resolve or remedy his failings. The Panel was also mindful that sanction is primarily about public safety, that the public interest is important, and that Suspension is not an appropriate sanction merely to allow a registrant more time to develop insight.

145. In all the circumstances, and given the identified risk of repetition of the Registrant’s misconduct, the Panel concluded that the imposition of a Suspension Order was neither the appropriate nor proportionate sanction to impose.

146. The Panel carefully considered paragraphs 47 – 49 of the ISP. Given the lack of insight and the Registrant’s unwillingness to address his failings, the Panel concluded that in order to protect the public and the public interest, any sanction less than a Striking Off Order would not be appropriate. The Panel also concluded that the nature and gravity of the matters found proved, particularly having regard to the risk to the public referred to earlier in this determination, was so serious that a lesser sanction would lack the necessary deterrent effect, and would undermine confidence in the profession and the regulatory process.

147. The Panel considered the Registrant’s interests. However, in light of its findings, the Panel considered that the need to protect the public and the public interest by sending a clear message upholding and declaring proper standards of conduct and behaviour outweighed the Registrant's interests.

148. The Panel accordingly determined to impose a Striking Off Order.

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

No notes available

History of Hearings for Mr Peter Branston

Date	Panel	Hearing type	Outcomes / Status
19/06/2019	Conduct and Competence Committee	Final Hearing	Struck off