Mr David Banks

Profession: Physiotherapist

Registration Number: PH98332

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 14/03/2019 End: 17:00 14/03/2019

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

Panel: Conduct and Competence Committee
Outcome: No further action

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Allegation

On 19 September 2017 at Chester Magistrates Court you were convicted of:

1) Assaulting Person A by beating him contrary to section 39 of the Criminal Justice Act 1988.

2) By reason of your conviction, your fitness to practise is impaired.

Finding

Background

1. The Registrant is registered with the HCPC as a Physiotherapist.

2. On 19 September 2017 at the Chester Magistrates’ Court the Registrant pleaded guilty to the charge set out in the Allegation above. The Registrant was convicted and sentenced to pay a fine of £400. In addition the Registrant was ordered to pay compensation of £350 and costs of £400.

3. A memorandum of conviction has been produced by the HCPC as proof of the Registrant’s conviction and sentence.

4. Ms Eales outlined the police report prepared in respect of the incident giving rise to the Registrant’s conviction, as follows: On 31 December 2016 Person A attended at a New Year’s Eve event, held in a public house in Chester. At about 2am Person A was waiting in the male toilets when the Registrant shouted at Person A, grabbed him around the throat and squeezed his throat, causing his breathing to be restricted. The Registrant then pushed Person A against the toilet wall and he was then pulled away from Person A by other people in the toilets. On 31 January 2017 the Registrant was interviewed and advised the Police that he “had an altercation” in a public house on New Year’s Eve, with a person who had taken money from his friend. The Registrant told the Police an argument had taken place with this person in the toilets. The other person was not aggressive but the Registrant put his hand on the other person’s chest “for protection”. He denied grabbing the other person around the throat or being pulled away by other people. He admitted being asked to leave the toilet and that he was “escorted out of the venue”. He denied causing any injury to the other person.

5. The Registrant states he qualified as a physiotherapist in January 2012. He worked at Stepping Hill Hospital in 2012 and then at Wexham Park Hospital until he moved to Chester in January 2014. He was initially employed as a Rotational Band 5 Physiotherapist until March 2016 when he was seconded as a Band 6 Physiotherapist. In December 2016 the Registrant moved to work in private practice as a specialist Neurological Physiotherapist with “Therapy Matters” until December 2018. He then commenced employment with Neurological Physiotherapy, another private practice, and he also continues to work part-time for “Therapy Matters”. He has not been the subject of any previous disciplinary or regulatory concerns and has no previous criminal convictions. He states that he failed to disclose his conviction to the HCPC until March 2018 “due to an error on my part” and is fully aware of his obligation to notify the HCPC promptly of all relevant matters.

6. He states he went out with his partner on 31 December 2016 to a New Year’s Eve event. The Registrant saw Person A take money from a childhood friend of the Registrant’s. He told the Police an argument had taken place with this person in the toilets. The other person was not aggressive but the Registrant put his hand on the other person’s chest “for protection”. He denied grabbing the other person around the throat or being pulled away by other people. He admitted being asked to leave the toilet and that he was “escorted out of the venue” and shouted “disgrace” as he was leaving. He denies causing any injury to the other person and declined to accept the offer from the police of a caution. He pleaded not guilty on his first appearance at Court. He then changed his plea to guilty at trial, on the basis that he had made unlawful contact with Person A, by putting his hand on Person A’s chest.

Decision on Facts

7. As to whether the fact of the conviction is proved the burden of proof rests with the HCPC to prove the case, to the civil standard, the balance of probabilities. The Registrant has admitted the fact of the conviction and the Panel finds the fact of the conviction is proved to the requisite standard by the memorandum of conviction.

Conviction and caution allegations

8. This case is brought under Article 22(1)(a)(iii) of the Health and Social Work Professions Order 2001 because the statutory ground is conviction for a criminal offence, rather than misconduct or lack of competence.

9. Conviction and caution allegations are not about punishing a registrant twice. The Panel was advised by the Legal Assessor to consider the guidance in the HCPTS Practice Note entitled Conviction and Caution Allegations and followed that advice. The Panel today cannot go behind that conviction. The Practice Note states: A conviction or caution should only lead to further action being taken against a registrant if, as a consequence of that conviction or caution, the registrant’s fitness to practise is found to be impaired.

Decision on Impairment

10. The Registrant gave evidence at the hearing and has provided character references and testimonials from CF, HB, LD, LE, LH, HB, GL and CL.

11. The Panel considered the HCPTS Practice Note on Finding that Fitness to Practice is Impaired. In determining whether fitness to practise is impaired, Panels must take account of a range of issues which, in essence, comprise two components:

1. the ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and
2. the ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

12. Miss Eales submitted that the Registrant’s fitness to practise is impaired on public policy and personal grounds.

13. Mr Stephens on behalf of the Registrant submitted that the Registrant is not currently impaired on either ground. He states the Registrant has reflected and the risk of repetition has been minimised by his subsequent engagement in conflict resolution training. The testimonials supplied by the Registrant show he is a valued practitioner and he has practised without further issues for 2 years. This was an isolated incident. The Registrant has acknowledged that his conduct was at odds with the HCPC standards but public confidence would not be undermined in this case by a finding that the Registrant is not currently impaired on the public interest ground.

14. Current impairment is a matter for the Panel’s judgement, there is no burden or standard of proof to be applied at this stage.  It is important to note that the test of impairment is expressed in the present tense; the Panel must decide whether the Registrant’s fitness to practise is impaired at the current date.

15. The Registrant has reflected upon his actions. This was a one-off incident at the lower end of the scale for offences of common assault and the conviction has been marked by the sentence of the Court. There is a very low risk of repetition and additional learning in conflict resolution has taken place since this incident occurred. The Panel finds that the Registrant’s fitness to practise is not impaired for personal reasons in respect of the personal component.

16. The Panel has also taken into account the critically important public policy issues. Dame Janet Smith identified the circumstances where impairment might arise as: (a) where a registrant presents a risk to service users (b) has brought the profession into disrepute (c) has breached one of the fundamental tenets of the profession or (d) has acted in a way that his integrity can no longer be relied upon.

17. Under the HCPC standards of conduct, performance and ethics, Registrants are required to comply with the following standards:

3 You must keep high standards of personal conduct.

13 You must… make sure that your behaviour does not damage the public’s confidence in you or your profession.

18. The Panel finds that the Registrant’s fitness to practise is impaired on public policy grounds. He pleaded guilty at a late stage and there were changes in his account of the incident as it was described to the HCPC, by the Registrant, the account given by his employer and in his witness statement. His conduct was not acceptable and is likely to have had a detrimental impact upon the reputation of the profession. Public confidence in the regulatory process would be undermined by a finding that his fitness to practise is not impaired.

Decision on Sanction

19. The purpose of fitness to practise proceedings is not to punish registrants, but to protect the public. The Panel has considered the Indicative Sanctions Policy (the Policy) and the wider public interest, which includes the need to uphold the reputation of the profession and maintain public confidence in the HCPC regulatory process.

20. In deciding what, if any, sanction to impose under Article 29 of the Health and Social Work Professions Order 2001, the Panel had regard to the principle of proportionality and the need to balance the interests of the public with those of the Registrant. The Panel heard submissions from Ms Eales and Mr Stephens and advice from the Legal Assessor, before considering (in ascending order) what, if any, sanction to impose.

21. The Panel has decided that it is appropriate not to impose a sanction in this case in accordance with paragraph 8 of the Policy which states:
Even if a Panel has determined that fitness to practise is impaired, it is not obliged to impose a sanction. This is likely to be an exceptional outcome but, for example, may be appropriate in cases where a finding of impairment has been reached on the wider public interest grounds identified above but where the registrant has insight, has already taken remedial action and there is no risk of repetition.

22. The Panel finds this is an exceptional case. The finding of impairment was on public interest grounds only. The offence was at the lower end of the scale and the Registrant now has full insight. He has taken remedial action by further training in conflict resolution and there is no significant risk of repetition. Furthermore he is an exceptional practitioner and taking into account his personal mitigation and the fact he should not be punished twice for this offence, it is appropriate to take no further action in this case.

23. A caution order should be considered where a registrant lacks full insight but that is not this case and a caution order would therefore be disproportionate. The finding of current impairment was on public policy grounds only. The Panel has been assisted by the evidence of the Registrant and the testimonials and character references he has supplied. This was an isolated incident and the Registrant has undertaken remedial action and detailed reflection to show he has full insight.

Order

ORDER: No Further Action

Notes

No notes available

Hearing History

History of Hearings for Mr David Banks

Date Panel Hearing type Outcomes / Status
14/03/2019 Conduct and Competence Committee Final Hearing No further action