Mr William Cooper

Profession: Physiotherapist

Registration Number: PH98151

Interim Order: Imposed on 20 Nov 2017

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 05/10/2020 End: 17:00 08/10/2020

Location: This is a virtual hearing

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

On 7 December 2016, whilst registered as a Physiotherapist and in respect of a Physiotherapy session undertaken with Service User 1, you:

1. Did not undertake and/or record an adequate objective assessment of Service User 1, in that you did not:

a. Record and/or carry out any or an adequate neurological assessment including:

I. Reflexes,
II. Motor power and sensation,
III. Presence of myelopathic hand signs;

b. assess and/or record an assessment of passive range of movement and/or muscle strength.

2. Did not record clinical reasoning and/or formulate a differential diagnosis, when undertaking the assessment of Service User 1,including in respect of the following:

a. the structures that maybe damaged;
b. the source of the pain and dysfunction;
c. the treatment plan for Service User 1.

3. Did not obtain and/or record informed consent for treatment in that you did not communicate to Service User 1:

a. your assessment findings and/or differential diagnosis;
b. the available treatment options.

4. Performed a thoracic spine manipulation at Grade 5 when it was not appropriate to do so, in that you performed this manipulation:
a. in the presence of acute bilateral pain;
b. after Service User 1 had complained of electrical sensations in his spine and/or leg(s);
c. when you had not first recommended alternative treatments and/or carried out lower grade mobilisations and determined that these had not resolved Service User 1 's complaint.

5. Performed a thoracic spine manipulation at Grade 5, when it was not appropriate to do so, in that you performed this manipulation:
a. And did not obtain and/or record Service User 1 's consent to the treatment;
b. When Service User 1 had expressed reluctance to undergo vigorous treatment or manipulation.

6. Did not assess and/or record your assessment of Service User 1 's symptoms after performing each of the following treatments:
a. Deep soft tissue massage to the trapezius muscles;
b. Cervico-thoracic Junction distraction;
c. Grade 5 manipulation to the thoracic spine.

7. Did not re-assess and/or alter or cease treatment when Service User 1 complained of:
a. Pain:
b. "Electronic shock sensations in his spine and/or leg(s)" or words to that effect.

8. Did not call an ambulance until requested to do so by Service User 1.

9. Did not discuss and/or record any short term goals and/or long term goals and/or objectives in respect of Service User 1 's treatment.

10. Your actions described in Paragraphs 1 - 9 constitute misconduct and/or lack of competence.

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

 

Finding

Preliminary Matters

Virtual hearing

1. The Panel considered whether it was appropriate for the hearing to continue as a virtual hearing conducted by video, and concluded that it was. The Panel would be able to observe the witnesses, ask them questions and assess their credibility. Furthermore, anyone wishing to make representations to the Panel would have a full opportunity to do so and the members of the Panel had a proper opportunity to discuss matters amongst themselves.

Notice of Hearing

2. The Panel accepted that a notice relating to this hearing was sent to the Registrant by email on 20 July 2020. That notice informed the Registrant of the dates and times of the hearing and informed him that the hearing would be conducted remotely with all parties involved participating by video. The Panel acknowledged that in normal times the notice of hearing would be sent by post. However, in circumstances where as a result of the Covid-19 pandemic members of the HCPTS Scheduling Team are working remotely, the Panel found that the communication by an email sent to the Registrant at an email address that was known to be used by the Registrant, was both a proper and sufficient means of communication. For these reasons the Panel found that there was good service of the notice of hearing.

Proceeding in Absence

3. After the Panel decided that there had been good service of the notice of hearing, the Presenting Officer applied for a direction that the hearing should proceed in the absence of the Registrant. The Panel accepted that a decision to proceed in the absence of a registrant is not one to be taken lightly. However, having considered and accepted the advice of the Legal Assessor and the guidance contained in the relevant HCPTS Practice Note, the Panel decided that the hearing should proceed. The reasons for this decision were as follows:

• There having been an effective notice of hearing, the Panel was satisfied that the Registrant knew that this hearing was due to take place.
• The Registrant had taken a conscious decision not to participate in the final hearing. This decision was communicated to the HCPC on his behalf by the Solicitors then acting for him on 4 February 2019 (the Registrant’s decision not to participate resulting in those Solicitors thereafter ceasing to act for him), and again by the Registrant himself in an email sent on 23 September 2019.
• There was no request by the Registrant for the present hearing to be adjourned, nor was there any suggestion that the Registrant would participate were it to be held on a future occasion.
• The events relevant to the allegation occurred nearly four years ago.
• The two witnesses whom the HCPC intended to rely upon were scheduled to give their evidence at the present hearing and had arranged to be available, in the case of SU1 in a jurisdiction with a very different time zone to the United Kingdom.
• As the HCPC introduced a witness statement made by the Registrant, the Panel was able to consider the Registrant’s account of the events.
• The Panel concluded that the clear public interest in the hearing continuing outweighed any disadvantage resulting from the Registrant’s absence.

Clarity concerning the form of the allegation

4. At an early stage of the proceedings it became clear that the allegation had been incorrectly recorded in a letter sent to the Registrant on 5 February 2020, in that the division between sub-paragraphs (b) and (c) of paragraph 4 had been inserted in the middle of a word. The Panel stated that for the avoidance of any doubt the form of the allegation that should be taken as correct was contained in the HCPC’s Case Summary at pages B1-2 of the hearing bundle. The Panel was satisfied that no injustice could result to the Registrant because he cannot have thought that the incorrect version in the letter dated 5 February 2020 was intended to be correct. The allegation as it appears at the head of this document reflects that correct version.
Sequence of decision making

5. At an early stage of the hearing the Panel was informed that there was a possibility that it would be presented with further documents that, if presented, would be potentially relevant to the issue of current impairment of fitness to practise. They would, however, have no bearing on the facts of the case. The Panel accordingly decided that it would be appropriate to split its decision on the allegation into two stages, the first dealing sequentially with fact finding and the statutory grounds, leaving the issue of current impairment of fitness to practise to be decided at a later stage in the event of a statutory ground being made out.

Background

6. While at work on 28 November 2016, Service User 1 lifted an item that he estimated weighed approximately 25lbs (approximately 11.5kgs) and afterwards experienced pain in his neck and both shoulders. He initially self-managed the pain, using ice, heat, Ibuprofen and rest. However, on 2 December 2016 he attended his G.P. who administered an injection and prescribed analgesia. His G.P. also recommended that he consult a Physiotherapist. When Service User 1 first attempted to arrange a physiotherapy referral he was told that he would not be able to have an appointment for about a fortnight. Being unwilling to wait that long he asked acquaintances if they knew of a Physiotherapist, and the Registrant’s name was suggested. On a second visit to his G.P. on 5 December 2016, there was discussion about an appointment with the Registrant. On 5 and 6 December 2016, Service User 1 worked part-time and confined his duties to desk activities. An appointment was made for Service User 1 to attend the Registrant’s practice early in the afternoon of 7 December 2016.

7. What transpired during Service User 1’s appointment will be explained in the Panel’s decision on the facts. Furthermore, the HCPC’s criticisms of the Registrant’s management of Service User 1 appear from the terms of the allegation. What it is necessary to add by way of background, however, is that at the end of the appointment when Service User 1 attempted to rise from the treatment couch he felt his right leg spasm, followed by spasm in his left leg. His right leg remained in spasm while he became unable to move his left leg. Very soon he was unable to control either leg and he felt paralysis rise up his legs into his trunk. Almost immediately he could not feel his abdomen, lost his balance and had a sensation that he was unable to breathe. An emergency “999” call was made, Paramedics attended, and Service User 1 was transported to hospital. At the hospital an MRI scan was undertaken, and it was discovered that there was herniation at C6/7 with acute cord compression. Later that evening emergency surgery was undertaken when cervical decompression and fusion were undertaken. Service User 1 has continued to be impacted as a result of the lesion at C6/7 he suffered on 7 December 2016.

Decision on Facts

8. The Panel approached its decision on the facts by acknowledging that the factual elements of the case were to be proved by the HCPC against the Registrant, the standard to which they were to be proved being the balance of probabilities.

9. The HCPC relied upon the evidence of two witnesses, namely Service User 1 and an expert witness, Mr Timothy Edbrooke, both of whom gave live evidence before the Panel. In relation to these witnesses:

• Service User 1 made a very short statement for the purposes of the HCPC proceedings. This statement effectively confirmed the veracity of a detailed statement he had earlier made for the purposes of a High Court claim against the Registrant in which he sought damages. Unless the contrary is stated, a reference in this document to “Service User 1’s statement” is a reference to the latter, detailed statement. A striking feature of this statement is how soon after the incident it was made. Solicitors were instructed on his behalf, and his instructions were taken from him, within about a week of the injury being suffered. The witness statement had been prepared by the Solicitors he instructed, and signed by Service User 1 on, 20 December 2016, less than a fortnight after the incident. The promptness with which this statement was prepared did not, of course, necessarily result in the contents of it being accurate, but it did mean that it was prepared at a time when it could not be said that the passage of time had clouded Service User 1’s recollection. At the commencement of its deliberations the Panel undertook a general assessment of the reliability of Service User 1’s evidence. The Panel found Service User 1 to be a careful and reflective witness who took time both in considering the questions he was asked and in answering them. He was very clear in his recollection of events, and was particularly adamant about certain aspects, an example of which was the issue of who instigated the emergency call for an ambulance to attend. The Panel was satisfied that Service User 1 was a truthful witness who did his best to help the Panel to resolve matters, and the Panel is equally satisfied that at no stage did he attempt to embellish his account. He was a witness upon whose evidence the Panel was satisfied it could safely rely.
• Mr Edbrooke is a very experienced Physiotherapist and his expert opinion was contained in a very full and detailed report dated 10 April 2019. The Panel found Mr Edbrooke to be a very impressive witness who was fair and balanced in his evaluation of the Registrant’s treatment of Service User 1. His opinions on the proper standard to which a Physiotherapist should perform were both measured and supported by cogent reasons. In short, the Panel had no hesitation in accepting his opinions.

10. In addition to the witness statements of Service User 1 and the report of Mr Edbrooke, the HCPC produced a bundle of documentary exhibits. Included in that bundle were the assessment prepared by the Registrant on 7 December 2016 (hereafter referred to as the “contemporaneous record of assessment”), and other relevant documents, including extracts from Service User 1’s GP records, documents recording the involvement of the ambulance service on 7 December 2016, as well as records of his subsequent hospital treatment. Also included in the HCPC’s bundle of documentary exhibits was a witness statement signed by the Registrant, of which more will be said below.

11. It has already been explained that the Registrant did not engage in this final hearing, and it is also the case that he produced no evidence for the consideration of the Panel. However, included in the HCPC’s bundle of documentary exhibits was a witness statement made by the Registrant in defence of Service User 1’s High Court claim against him for damages. That witness statement was made on 27 June 2018, approximately 18 months after the incident. Unless otherwise stated, a reference in this document to “the Registrant’s witness statement” is a reference to this document. The Panel took account of the contents of the statement, heeding the reservations advised by the Legal Assessor relating to hearsay evidence.

12. In reaching its decisions the Panel considered the entirety of the evidence it heard and the documents it received.

Particular 1(a) & (b).
Did not undertake and/or record an adequate objective assessment of Service User 1, in that you did not:
a. Record and/or carry out any or an adequate neurological assessment including:
IV. Reflexes,
V. Motor power and sensation,
VI. Presence of myelopathic hand signs;
b. assess and/or record an assessment of passive range of movement and/or muscle strength.

13. Included in Service User 1’s presenting condition was a statement that he was experiencing upper spine pain and stiffness, a fact confirmed by the recorded assessment made by the Registrant. The Panel accepted the evidence of Mr Edbrooke that if a patient reports pain, numbness, or tingling in the shoulder or more distal upper extremities, that would indicate nerve involvement. That in turn necessitates the undertaking of a neurological assessment that would include testing reflexes, motor power and sensation and the presence of myelopathic hand signs. The Registrant undertook none of these important assessments when he saw Service User 1. Accordingly, particular 1(a) is proven.

14. So far as Particular 1(b) is concerned, the issue is whether passive range of movements was considered, that is to say in the context of this instance, movements of Service User 1 that were occasioned by the Registrant rather than by Service User 1 himself. The range of movements assessed by the registrant were active movements. The Panel is satisfied that neither the passive range of movements nor muscle strength was assessed. Particular 1(b) is proven.

Particular 2(a) to (c).
Did not record clinical reasoning and/or formulate a differential diagnosis, when undertaking the assessment of Service User 1, including in respect of the following:

a. the structures that maybe damaged;
b. the source of the pain and dysfunction;
c. the treatment plan for Service User 1.

15. The Panel accepted the evidence of Mr Edbrooke that for treatment to be safe and effective it is necessary that there should be clear clinical reasoning leading to a differential diagnosis. A differential diagnosis requires consideration and identification of the possible diagnoses, identifying them and indicating their respective likelihood as the cause of the patient’s problems. In the judgement of the Panel, in the context of Service User 1’s presenting condition, it was necessary for the factors identified in sub-particulars (a) to (c) of Particular 2 to be considered. That they were not considered is established by the fact that they are not recorded in the contemporaneous written assessment document, the Registrant did not claim to have done so in his witness statement, and, crucially, by the clear evidence of Service User 1 that he was not informed of a treatment plan by the Registrant. The consequence is that Particular 2 is proven in its entirety.

Particular 3.
Did not obtain and/or record informed consent for treatment in that you did not communicate to Service User 1:
a. your assessment findings and/or differential diagnosis;
b. the available treatment options.

16. When Service User 1 attended the Registrant’s practice on 7 December 2016 he signed a document headed “Physiotherapy Consent Form”. However, this particular is concerned with informed consent. In the judgement of the Panel for consent to be informed, the patient must have an understanding of the assessment findings and be informed of any available treatment options. In the case of Service User 1 there were wholly inadequate assessment findings, there was no differential diagnosis and there was no discussion with him about available treatment options. It necessarily follows that any purported consent he gave to the treatment undertaken was not informed. Particular 3 is proven.

Particular 4
Performed a thoracic spine manipulation at Grade 5 when it was not appropriate to do so, in that you performed this manipulation:
a. in the presence of acute bilateral pain;
b. after Service User 1 had complained of electrical sensations in his spine and/or leg(s);
c. when you had not first recommended alternative treatments and/or carried out lower grade mobilisations and determined that these had not resolved Service User 1 's complaint.

17. The Panel accepted the evidence of Service User 1 that he was suffering from bilateral pain and that he informed the Registrant of that fact. Indeed, the contemporaneous record of the assessment made by the Registrant recorded under the heading “PALP” [palpation], “Pain ++ bilateral trapezius”. The Panel also accepted the evidence of Service User 1 that he complained of electrical-type sensations in his legs. Furthermore, as has already been stated, no alternative treatment options were considered and accordingly not discussed with Service User 1. The Panel accepted the opinion of Mr Edbrooke that it was inappropriate to perform a thoracic spine manipulation at Grade 5 against this background. Accordingly, Particular 4 is proven.

Particular 5.
Performed a thoracic spine manipulation at Grade 5, when it was not appropriate to do so, in that you performed this manipulation:
a. And did not obtain and/or record Service User 1 's consent to the treatment;
b. When Service User 1 had expressed reluctance to undergo vigorous treatment or manipulation.

18. As has already been explained, there was no explanation of what this intervention was intended to do, and no discussion of alternatives. It necessarily follows that there was no consent to the thoracic spine manipulation at Grade 5. That would be so even if Service User 1 had not expressed to the Registrant his reluctance, as the Panel accepts he did, to undergo vigorous treatment. It follows that particular 5 is proven.

Particular 6.
Did not assess and/or record your assessment of Service User 1 's symptoms after performing each of the following treatments:
a. Deep soft tissue massage to the trapezius muscles;
b. Cervico-thoracic Junction distraction;
c. Grade 5 manipulation to the thoracic spine.

19. The focus of this particular is the proposition that there was an obligation on the Registrant both to assess and record the symptoms after performing each aspect of the treatment before proceeding to administer another element. The contemporaneous record of the Registrant’s assessment does not indicate that there was a consideration of Service User 1’s symptoms after each element of the treatment before the next was undertaken, and on a balance of probabilities the Panel finds that there was no such assessment. Particular 6 is proven.

Particular 7.
Did not re-assess and/or alter or cease treatment when Service User 1 complained of:
a. Pain:
b. "Electronic shock sensations in his spine and/or leg(s)" or words to that effect.

20. The Panel accepted the evidence of Service User 1 that he experienced pain and electric shock-type sensations as alleged and that he informed the Registrant that he was experiencing them. The Panel also accepted the evidence of Service User 1 that the Registrant neither replied to him nor modified his actions upon being told of them. In the judgement of the Panel the Registrant should have ceased what he was doing and re-assessed the appropriateness of the treatment he was delivering, and intending to deliver, when Service User 1 made those reports to him. This is because, as identified by the exert evidence of Mr Edbrooke that the Panel accepted, “Reassessment is a continual process during mobilisation or manipulation and requires the therapist to seek and react to the patient’s feedback.” As the Registrant neither sought nor responded to Service User 1’s feedback he did not reassess and accordingly he did not cease treatment. Particular 7 is proven.

Particular 8.
Did not call an ambulance until requested to do so by Service User 1.

21. The Panel noted that in the contemporaneous record of his assessment the Registrant recorded, “Symptoms did not clear so I took the decision to call an ambulance”. However, the Panel accepted the clear and emphatic evidence of Service User 1 that the request for an ambulance was made at his insistence. Particular 8 is proven.

Particular 9.
Did not discuss and/or record any short-term goals and/or long-term goals and/or objectives in respect of Service User 1 's treatment.

22. The Panel found that there was no discussion of either short-term or long-term goals with Service User 1, basing that decision first on the evidence of Service User 1 that there was no such discussion, and secondly, on the absence of any reference to a relevant discussion in the contemporaneous record of the Registrant’s assessment in circumstances where such an important element would have been recorded had it taken place.

Decision on Grounds

23. It follows from the finding that all of the alleged facts are proven, it was necessary for the Panel to go on to consider whether the proven facts resulted in one or other (or potentially both) of the statutory grounds of misconduct and lack of competence being made out.

24. The Panel considered whether the proven facts resulted in breaches of the HCPC’s standards. The conclusion of the Panel was that the following standards of the “Standards of conduct, performance and ethics” had been breached:

• 1.2, “You must work in partnership with service users ….. involving them, where appropriate, in decisions about the care, treatment or other services to be provided.”
• 1.4, “You must make sure that you have consent from service users ….. before you provide care, treatment or other services.”
• 2.2, “You must listen to service users and carers and take account of their needs and wishes.”
• 2.3, “You must give services users ….. the information they want or need, in a way they can understand.”
• 6.1, “You must take all reasonable steps to reduce the risk of harm to service users ….. as far as possible.”
• 6.2, “You must not do anything ….. which could put the health or safety of a service user ….. at unacceptable risk.”

The Panel’s findings also have the consequence that the manner in which the Registrant practised did not discharge a number of the standards included in the HCPC’s Standards of proficiency for Physiotherapists. The Panel does, not, however, consider it necessary to enumerate those breaches because the Panel is satisfied that the shortcomings were not occasioned by any lack of knowledge or skills on the part of the Registrant, but rather because the Registrant did not apply the knowledge and skills he had.

25. The Panel first considered whether its factual findings constituted misconduct. The shortcomings were serious, particularly the failure to formulate a differential diagnosis, the failure to discuss with Service User 1 what he intended to do, to discuss other available treatment options, or to heed or respond, to what Service User 1 was saying to him about the sensations he was experiencing while being treated. The Panel is satisfied that the failings constituted a very serious falling short of the standard expected of a reasonably competent Physiotherapist, and would be considered “deplorable” by fellow professionals. The Panel was satisfied that, taking all the proven facts together, the threshold of seriousness to justify a finding of misconduct was met. Mention has already been made of the extremely serious consequences suffered by Service User 1, and the Panel in no way minimises the significance of those consequences. However, the Panel feels it is necessary to state that the finding of misconduct it makes is not one that is made solely because of the disastrous outcome for Service User 1. So serious were the failings, the Panel would still have made a made a finding of misconduct even if Service User 1 had not been injured. This is because of the risk that service users are necessarily exposed to when failings of this nature occur. Having first considered the statutory ground of misconduct, and having found that that ground was made out and that the misconduct over-shadowed any deficiency in the Registrant’s knowledge and skills, the Panel did not consider it necessary to address the statutory ground of lack of competence.

26. This finding has the consequence that the Panel must proceed to decide if the misconduct arising from the proven facts is currently impairing the Registrant’s fitness to practise.


Decision on Impairment

27. Mention was made in paragraph 5 above that, an early stage of the hearing, the Panel was informed that the HCPC would disclose documents that might be relevant to the issue of current impairment of fitness to practise. In the event, after the decisions on the facts and misconduct had been made, the HCPC did provide the Panel with a bundle of documents running to some 186 pages. These were documents that had been sent to the HCPC by the Registrant in connection with an interim order under which he had been practising. In the main, the documents were details of anonymised records of patients seen by the Registrant since an interim order was made, but included in the bundle was also a letter dated 6 May 2020 written by the HCPC. The Registrant had been put on notice that the HCPC might seek to introduce these documents, but it is important to emphasise why the HCPC did so. The motivation of the HCPC in disclosing these documents was to ensure that the hearing was as fair to the Registrant as it was possible to be, particularly as the Registrant himself had not elected to disclose any documentation himself. These documents were not disclosed in order to disadvantage the Registrant.

28. The Panel heeded the advice it received that it was necessary to consider both the personal and public components relevant to the concept of current impairment of fitness to practise.

29. For reasons sufficiently explained by the Panel in relation to its decision on the facts and the ground of misconduct, the shortcomings demonstrated on 7 December 2016 were extremely serious. In the judgement of the Panel when findings of such gravity have been made it is necessary for the practitioner to make very significant efforts if a finding of impairment of fitness to practise does not flow from those findings, and that is true even when a considerable period of time elapses between the events occurring and the decision being made about the impairment of fitness to practise. In the context of a case such as the present it would be necessary for the practitioner to demonstrate insight, which in turn would involve acceptance and apology. It would also require an explanation of steps being taken towards, and successful completion of, remediation of the identified failings. The position with regard to this particular Registrant is that although he has engaged with his regulator with regard to the interim order, there has been no engagement at all with regard to the substantive issues. Furthermore, there has been no information provided to the HCPC that efforts have been made by the Registrant to remediate the shortcomings. Although the interim order documents included in the bundle of 186 pages do not worsen the Registrant’s position, in a case where the findings are as serious as they are as in the present case, it is not possible for the Panel to extract a finding that remediation has been achieved from the documents included in that bundle that record patient assessments. The Panel, being unable to conclude that the failings it has identified have been successfully remediated, necessarily finds that there is a risk that failings of a similar nature might be repeated.

30. The conclusion of the Panel is that the Registrant has in the past acted so as to put service users at an unwarranted risk of harm, and is liable to do so in the future. Furthermore, he has in the past brought the profession of Physiotherapy into disrepute and is liable to do so again, and he has in the past breached a fundamental tenet of his profession, and is also liable to do that again in the future. These findings resulted in the Panel concluding that the Registrant’s fitness to practise is impaired upon consideration of the personal component.

31. Even if there had been remediation of the failings the Panel would nevertheless have made that a finding of impairment of fitness to practise with regard to the public component would be required to reassure the public that such serious failings could not be overlooked, and to remind fellow professionals of the need to comply with proper standards of conduct. The fact that there has not been remediation makes this finding in the wider public interest all the more necessary.

32. The Panel’s conclusion that the Registrant’s fitness to practise is currently impaired by reason of the misconduct arising from the proven facts means that the issue of sanction must be considered.

Decision on Sanction

33. The Panel accepted the advice of the Legal Assessor as the proper approach to the consideration of sanction. In particular, it accepted that a sanction should not be imposed in order to punish a registrant against whom findings have been made. Rather, a sanction should only be imposed to the extent that it is required to afford a reasonable degree of public protection and to maintain a proper level of public confidence and to uphold and maintain acceptable professional standards. The Panel also paid close attention to the guidance contained in the HCPC’s Sanctions Policy.

34. The task of the Panel was first to consider whether any sanction is required at all. If it is, then the available sanctions must be considered in an ascending order of seriousness, stopping when one that addresses the proper sanction goals is reached, albeit that the appropriateness of that tentative decision can be tested by considering the next more severe sanction if available.

35. The Panel first considered whether there were any aggravating or mitigating factors relevant to the findings it made on the allegation. In the judgement of the Panel it is a significant aggravating factor that this Registrant did not engage with his professional regulator with the substantive issues that arose from a very serious fitness to practise concern. As the Panel’s findings on the allegation were solely concerned with the events of 7 December 2016, logically factors falling outside that occasion could not be said to be “mitigating factors”, but nevertheless, the Panel considered it to be a factor that weighed in the balance on the side of the Registrant that it was not informed that there had been any other fitness to practice concerns raised against him.

36. The Panel does not consider it to be either necessary or helpful to repeat here all that has been earlier said in this determination about the findings it has made. It is, however, necessary to underline that the failings were extremely serious, that they have not been remediated, that there is a risk of repetition and that repetition would inevitably involve the risk of harm to other service users.

37. Against the background of these findings the Panel concluded that it would be wholly inappropriate to take no further action or to impose a caution order.

38. When the Panel next considered whether a substantive conditions of practice order would be appropriate, the Panel recognised that the Registrant has been practising under interim conditions of practice for some time. Nevertheless, for two distinct reasons the Panel concluded that a substantive conditions of practice order would not be an appropriate outcome. One reason was that the undertaking of this final hearing has allowed a full examination of the extent of the Registrant’s failings, and the outcome of that examination has convinced the Panel that the risks presented by the Registrant cannot be satisfactorily addressed by the imposition of conditions of practice as they would necessarily involve allowing him a degree of professional autonomy. The other reason is that the Panel does not consider that a Conditions of Practice Order, a measure that requires a significant degree of active engagement with the regulator, would be appropriate in this case given the Registrant’s very limited and partial engagement.

39. The Panel next considered a Suspension Order. In this regard the Panel considered paragraph 121 of the Sanctions Policy. In three respects the case did not satisfy the suggested categories of case in which a Suspension Order would be appropriate. In this case the Registrant does not have insight, the issues are likely to be repeated, and there is no evidence that the Registrant will be likely to be able to resolve or remedy his failings. However, putting the guidance contained in paragraph 121 to one side and considering matters from first principles, the only circumstances where the imposition of a suspension order would be appropriate would be if there were cogent grounds for believing that the Registrant wished to engage in the fitness to practise process and take active steps to remedy matters. Here there is not merely an absence of evidence that he is so motivated; there is positive evidence that he does not have that desire. In the context of the decision to proceed with the hearing in the absence of the Registrant, mention has already been made of two communications demonstrating his desire not to engage. A further example is to be found in the letter he wrote to the HCPC on 6 May 2020, that being a particularly significant document as it was written some time after a most helpful (and, in the view of the Panel, commendable) letter written to the Registrant by his Case Manager on 03 April 2020, in which she went to considerable lengths to guide the Registrant in the sort of information he should consider putting before this Panel. In short, the Panel concluded that the making of suspension order would be pointless because it would not result in any positive change. The only effect of it would be that the Registrant would be locked into HCPC registration while suspension lasted.

40. The rejection of suspension as an appropriate outcome necessarily had the consequence that the Panel arrived at the decision that the order to be made is one of striking off. It should not be thought that this was an outcome that the Panel was driven to adopt against its better judgement as a result of excluding all others. On the contrary, in circumstances where there was an oft-repeated intention not to engage with the HCPC and no suggestion of a desire to remediate, the making of a striking off order is the only order that would afford a proper degree of public protection and ensure a proper degree of public confidence in the profession of Physiotherapy and the effective regulation of it. For that reason, the Panel is satisfied that it is a proportionate response to the findings made.

Order


ORDER: That the Registrar is directed to strike the name of William Cooper from the Register on the date this Order comes into effect.

Notes

Interim Order

The Panel makes an Interim Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise 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.

Reasons for making the Interim Order

1. The Panel first considered whether it had jurisdiction to consider the HCPC’s application for an interim order. The Panel concluded that it could because the notice of hearing email sent to the Registrant on 20 July 2020 put the Registrant on notice that in the event of a substantive striking off order being made, an application might be made for an interim order. Accordingly, the Registrant was given an opportunity to be heard on the issue whether an interim order should be made. Furthermore, the Panel concluded that it was appropriate to proceed to consider the application in the absence of the Registrant because he had been given an opportunity to attend, but had failed to avail himself of that opportunity.

2. In relation to the substance of the application, the Panel proceed on the basis that it acknowledged that the default position established by the legislation is that following the imposition of a substantive sanction there should be no restriction on a registrant’s right to practise while his or her appeal rights remain extant. It follows that positive reasons must exist to justify the imposition of an interim order to depart from this default position. In this particular case, the relevant grounds to be considered were whether an interim order is necessary for protection of members of the public and whether an order is otherwise in the public interest.

3. The Panel concluded that both of the grounds just mentioned are satisfied. An order is necessary for protection of the members of the public because of the risk of repetition that has been identified in relation to the Panel’s substantive decision. It is also required in the wider public interest given that now the Panel has made a determination of the full extent of the Registrant’s shortcomings and his failure to remediate them. The Panel is satisfied that in the light of those findings, fair-minded and fully informed members of the public would be dismayed were there to be no restriction placed on the Registrant’s right to practise while his appeal rights against the substantive decision and striking-off order remain outstanding.

4. The Panel considered whether a satisfactory response on an interim basis would be to re-impose an Interim Conditions of Practice Order now that the Interim Conditions of Practice Order that has hitherto been in place will lapse with the conclusion of the final hearing. However, in the light of the considered findings made by the Panel that there is a significant risk of repetition with the consequential risk of serious harm being occasioned to service users, together with the serious public concerns that will be caused by the Panel’s findings it has been decided that a further Interim Conditions of Practice Order would not be a sufficient response.

5. The consequence of these findings is that there must be an Interim Suspension Order.

6. The Panel determined that the appropriate length of the interim order is 18 months. The order will immediately fall away if the Registrant does not launch an appeal within 28 days. If, however, he does launch an appeal, the final resolution of that appeal could well take 18 months.

Hearing History

History of Hearings for Mr William Cooper

Date Panel Hearing type Outcomes / Status
05/10/2020 Conduct and Competence Committee Final Hearing Struck off