Mr David Nicholas

Profession: Orthoptist

Registration Number: OR02040

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 21/09/2020 End: 17:00 23/09/2020

Location: This hearing will take place virtually

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

1. Between 8 February 2017 and 22 February 2017, you practised as an Orthoptist when you were not registered to practise.
2. Between 12 April 2017 and 28 August 2018, you practised as an Orthoptist when you were not registered to practise.
3. During the dates set out in paragraphs 1 and/or 2 above, you knew or ought to have known that you were not registered to practise during these dates, but you continued to practise.
4. Your conduct at paragraph 3 was dishonest.
5. Your actions at paragraphs 1-4 amount to misconduct.
6. Because of your misconduct, your fitness to practise as an Orthoptist is impaired.

 

 

Finding

Preliminary Matters
Application to Amend the Allegation
1. In the Notice of Allegation sent to the Registrant on 18 May 2020 it was outlined that amendments to the Allegation would be sought on the first day of the hearing. The amendments sought were to change the dates in Particular 1 from 23 to 22 February 2017 and to change the date in Particular 2 from 3 September 2018 to 28 August 2018. In relation to Particular 3 it was proposed that the wording was changed to read “During the dates set out in paragraph 1 and/or 2 above, you knew or ought to have known that you were not registered to practice during these dates but you continued to practise.” instead of “You knew or ought to have known that you were not registered to practise during these dates but continued to practise.” Mr Lloyd, on behalf of the HCPC applied to amend the particulars of the Allegation as set out above and submitted that they served to clarify the Allegation and were trivial in nature. He submitted that the proposed amendments did not alter the nature of the case against the Registrant.

2. The Registrant did not oppose this application. In addition, he confirmed that he had been notified of the proposed amendments in good time.

3. The Panel accepted legal advice and was mindful of the issues of fairness and the avoidance of prejudice. The Panel considered that it was fair to allow the application to amend the particulars of the Allegation as they did not fundamentally alter the case against the Registrant and better reflected the evidence. There was no prejudice to the Registrant and the Panel considered the amendments could be made without injustice.

Application for part of the hearing to be held in private.
4. At the outset of the hearing Mr Lloyd requested that any matters relating to the Registrant’s health or private and family life should be heard in private. The Panel granted that application under Rule 10 1 (a) and took account of the principles set out in the HCPTS Practice Note, Conducting Hearings in Private. The Panel determined that those parts of the hearing that concern the Registrant’s health and personal life should be conducted in private for the protection of his private life.

5. As such, this is the redacted version of the Panel’s determination.

Background
6. The Registrant is employed as an Orthoptist by Doncaster and Bassetlaw Teaching Hospitals NHS Foundation Trust (the Trust) and has been in this role since 26 February 2010.

7. On 28 August 2018, the Head Orthoptist at the Trust (ID) was told that a random audit conducted by the Trust’s Workforce Department had revealed that the Registrant did not have an active HCPC registration. ID immediately removed the Registrant from clinical duties until his registration was re-instated.

8. ID commenced an investigation and following enquiries with the HCPC identified two periods during which it is alleged that the Registrant did not have active HCPC registration.

9. It is alleged that on 5 January 2017 the HCPC attempted to collect the Registrant’s direct debit for his registration fee but it was rejected by his bank. Two further attempts to take payment were made on 25 January and 8 February and both were rejected. The HCPC contends that on 8 February 2017 it wrote to the Registrant to tell him that because he had not paid his fee he was no longer registered. It is alleged that on 22 February 2017 the Registrant applied to be readmitted to the Register and paid the required fee via cheque. On the basis of this application the Registrant was re-admitted to the Register on 23 February 2017 before the cheque had cleared.

10. The HCPC say that the cheque did not clear and it wrote to the Registrant to ask him to bring his payment up to date on 9 March and 29 March 2017. It is alleged that the Registrant failed to respond to these letters or bring his payments up to date and on 12 April 2017 the HCPC wrote to the Registrant to tell him that his name had been removed from the Register on the basis that he had not paid his fees.

11. On 21 June 2017 the HCPC say that it has a record of a telephone call from the Registrant to the Registration Team regarding his registration and confirming that he was struggling financially. On 22 June 2017 a short form re-admission form completed by the Registrant was considered by the HCPC and rejected because of the length of time the registration had been off the Register. On 22 June 2017 the HCPC say that it sent a letter to the Registrant explaining that he needed to complete a more detailed application form for re-admission and pay fees of £315.

12. It is alleged that there was no further contact from the Registrant until 28 August 2018 and he remained off the Register until he was re-admitted on 3 September 2018 following completion of the appropriate form and payment of the fees.

13. It is alleged that the Registrant knew or ought to have known that he did not have active registration during the periods 8 to 22 February 2017 and 12 April 2017 to 28 August 2018 and yet he continued to practise. It is further alleged that this conduct is dishonest.

14. At the outset of the hearing the Registrant did not admit any of the factual elements of allegations save in so far as to accept that although he wasn’t registered he considered that he was. The Registrant did not admit that he had been dishonest.

Decision on Facts
15. On behalf of the HCPC the Panel heard live evidence from ID who is the Registrant’s line manager at the Trust and had investigated the matter internally and NB, the Registrations Manager at the HCPC. The Panel was provided with a bundle of documents together with written submissions on facts from the HCPC and an additional bundle of documents and submissions from the Registrant.

16. The Panel heard and accepted the advice of the Legal Assessor. In respect of the disputed facts, the Panel understood that the burden of proving each individual fact is on the HCPC and that the HCPC will only be able to prove a particular fact if it satisfies the required standard of proof: namely the civil standard, whereby it is more likely than not that the alleged incident occurred. The Panel accepted the advice of the Legal Assessor in relation to the test for dishonesty as outlined in the case of Ivey v Genting Casinos (UK) Ltd [2017] UKSC67.

17. The Panel considered the evidence of all of the witnesses. It considered the evidence of ID to be straightforward and he was able to give a clear account of the matters relating to the Trust procedure and investigation. The Panel also accepted his character evidence that the Registrant’s professionalism and work was beyond reproach until this matter. The Panel accepted his evidence but were mindful that it was required to make its own decisions on the evidence and not adopt his conclusions. The Registrant did not substantially challenge the accuracy of the evidence given by ID.

18. The Panel considered the evidence of NB. She gave evidence regarding the processes in place at the HCPC and the timeline in relation to documents and communications with the Registrant. The Panel considered that she was a helpful and credible witness. The Panel accepted the evidence she gave.

Particular 1 - Found Proved
1. Between 8 February 2017 and 22 February 2017, you practised as an Orthoptist when you were not registered to practice.

19. In making this finding the Panel had particular regard to the documentary evidence about the periods of time that the Registrant held active HCPC registration and the evidence of NB. The Panel accepted her evidence as correct that between 8 February 2017 and 22 February 2017 the Registrant’s registration had lapsed and he was no longer registered.

20. It was not disputed by the Registrant that he had continued to work between 8 February and 22 February 2017. This was confirmed by ID who gave evidence that he had never been made aware by the Registrant of any difficulties with his registration and he had not been removed from clinical duties as a result of any period of lapsed registration save for a few days in late August early September 2018. In these circumstances the Panel was satisfied that the Registrant had practised as an Orthoptist during the period 8-22 February 2017 when he was not on the HCPC Register.

Particular 2 – Found Proved

2. Between 12 April 2017 and 28 August 2018 you practised as an Orthoptist when you were not registered to practice.

21. The Panel accepted the evidence of NB as correct that the Registrant was removed from the HCPC Register on 12 April 2017 for non-payment of fees and was not re-admitted to the Register until 3 September 2018. The Panel also had regard to the evidence of ID who confirmed that he removed the Registrant from clinical duty on 28 August 2018 when the matter was brought to his attention. ID confirmed that the Registrant had been working during the time that he had not held registration. The Registrant did not dispute that he had been working during the period 12 April 2017 and 28 August 2018 albeit that he thought he was registered.

22. In these circumstances the Panel was satisfied that the Registrant had practised as an Orthoptist during the period 12 April 2017 to 28 August 2018 when he was not on the HCPC register.


Particular 3 – Found Proved

3. During the dates set out in paragraphs 1 and/or 2 above, you knew or ought to have known that you were not registered to practise during these dates but you continued to practise.

23. The Panel considered the Registrant’s submissions about why he thought he was registered between 8 February and 22 February 2017 and concluded they lacked credibility. The Panel noted that the letter sent to the Registrant on 8 February 2017 expressly stated that he had been removed from the Register. The Panel did not accept that the Registrant reasonably thought that he was registered after he received the letter of 8 February. The Panel rejected the submission that the Registrant’s personal problems were so overwhelming at this time that he had no awareness that he wasn’t registered. If the Registrant believed that he was registered during this period he would not have applied to be re-admitted to the Register on 22 February. The Panel considered that the Registrant’s actions were inconsistent with his stated belief that he was registered during this time. The Panel therefore concluded that for the period after he received the letter on 8 February 2018, up to 22 February 2017 the Registrant knew that he was not registered and continued to practise.

24. The Panel accepted NB’s evidence that on 12 April 2017 the HCPC wrote to the Registrant to explain that he was now removed from the Register on the basis that the cheque payment submitted with his application in February 2017 had not cleared and fees had not been brought up to date despite reminders. The Panel considers that it is likely that the Registrant received that letter and at some point after the letter was sent on 12 April he became aware that he was no longer registered. This is because on 21 June 2017 the Registrant called the HCPC to enquire about his registration and explained he was struggling financially. The Registrant, in his submissions confirms he can recall submitting a cheque in June 2016 following a conversation. There is no correspondence between the HCPC and the Registrant following the letter of 12 April 2017 before the telephone call in June. The Panel was therefore satisfied that the Registrant could not have believed he was registered after he received the letter in April 2017 otherwise he would not have called to enquire about his registration.

25. Taking account of all the evidence, the Panel concluded that the Registrant knew he was not registered between April 2017 and 21 June 2017. The Panel concluded that the Registrant continued to practice as a registered Orthoptist when he knew he was not registered during this period.

26. On 22 June 2017 the HCPC rejected the short form readmission application completed by the Registrant. In his submissions the Registrant explains that he recalls sending a further cheque in May or June 2017 following a telephone call. Taking into account the evidence contained in the screenshots the Panel concluded that it was likely that the Registrant sent the re-admission form and payment following the call to the HCPC on 21 June 2017.

27. The Panel accepted the evidence of NB that following the rejection of the application for re-admission a letter was sent to the Registrant on 22 June 2017 to explain that he had not been re-admitted to the Register and he needed to complete a more detailed form. The Registrant in his submissions stated that he did not hear anything further from the HCPC following the submission of his application and he assumed all was well.

28. The Panel accepted that during this time the Registrant was effectively living at a number of different addresses, had changed banks and was commuting long distances to work. The Panel noted that the Registrant was experiencing difficult personal circumstances and significant financial pressure. The Panel could not be satisfied on a balance of probabilities that the Registrant had seen the letter of 22 June 2017. Given his previous attempts to resolve the position with his registration, albeit after a period of time had elapsed, the Panel considered that it was likely that following the submission of the re-admission form and cheque in June 2017 the Registrant did genuinely believe he was registered until he was advised otherwise by his employer in August 2018.

29. Notwithstanding this, the Panel considered that it would be reasonable to have expected the Registrant to check that he was registered given the issues there had been. The Panel accepted the evidence of ID that it would have been possible for the Registrant to check the position quickly and easily either by telephone or internet at his place of work. The Registrant accepted in his submissions that it would have been prudent to check. In these circumstances, had the Registrant taken reasonable steps he would have discovered the position and for these reasons the Panel concluded that for the period 22 June 2017 to 28 August 2018 the Registrant continued to practise as an Orthoptist when he ought to have known he was not registered.


Particular 4 – Found proved.

4. Your conduct at paragraph 3 was dishonest

30. The Panel has made a finding in relation to Particular 3 above that the Registrant knew he was not registered for the periods following receipt of the letter of 8 February to 22 February and following the letter of 12 April 2017 to 22 June 2017. The Panel has further found that for the period 22 June 2017 to 28 August 2018 it is likely that the Registrant thought he was registered but he ought to have taken steps to find out. The Panel therefore went on to consider whether the Registrant’s conduct in continuing to practise when he knew he wasn’t registered and during the period when he ought to have known he wasn’t registered would be considered dishonest by the standards of ordinary decent people.

31. The Panel accepted that the Registrant was under a significant amount of personal and financial stress at the time. The Panel also accepted that the Registrant is a competent and committed clinician who is well respected. The Panel noted the Registrant’s submissions that this period of his life was very difficult and he has a limited recollection of events around this time. The evidence from ID was that the Registrant’s professionalism was beyond reproach until this matter.

32. However, the Panel considered that the Registrant must have been aware of the seriousness of the lapse in his registration and the effect on his employment which is why he took steps during these periods to correct the situation. The Panel considered that it must also have been evident to the Registrant that he was under an obligation to tell his employer that he was not registered given the terms of his employment. The Panel concluded that the Registrant’s continued practice as a registered Orthoptist when he knew he was not registered and his failure to declare this to his employer would be considered dishonest by the standards of ordinary decent people.

33. For the period following the failed application for re-admission in June 2017 the Panel has found that the Registrant believed he was registered but ought to have taken steps to check. The Panel did not consider that the Registrant deliberately set out to mislead his employer or conceal that he wasn’t registered during this period. However, the Panel determined that the failure to check went beyond an honest mistake or an oversight or could be attributed to personal stress. There was no evidence from ID that the Registrant was considered to be otherwise lacking in his administrative skills at this time. The Panel did not accept these to be persuasive reasons why the Registrant did not take straightforward and easy steps to find out the true position with regard to the status of his registration.

34. The Panel concluded that the Registrant deliberately failed to prioritise his registration status and continued to practise with no confirmation that he was properly registered. The Registrant took no steps to alert his employer to the situation and did not take easy steps to satisfy himself that the application for re-admission had been successful. In these circumstances the Panel considered that this conduct would be considered dishonest by the standards of ordinary decent people.

Decision on Grounds
35. The Panel then considered whether the facts found proved amounted to misconduct. Misconduct must be serious. The Panel has made findings in relation to the Registrant continuing to practise as an Orthoptist when he knew or ought to have known that he wasn’t registered and dishonestly failing to declare this. This persisted over a significant period of time. The Panel had heard evidence that it potentially had an impact on the Trust’s insurance position. The Panel also considered it was likely that members of the public would have felt misled that at the time the Registrant was not a regulated or registered professional. The Panel considered that the Registrant’s conduct fell far short of the standards expected of a registered professional.

36. The Panel notes the HCPC Standards of Conduct, Performance and Ethics January 2016 and in particular Standard 3.4 “You must keep up to date with and follow the law, our guidance and other requirements relevant to your practice.” and Standard 9.1 “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.”

37. The Panel considered that the reputation of Orthoptists was damaged by the Registrant’s conduct and individuals were misled about the Registrant professional status. The Registrant’s conduct had the potential to put patient care at risk and compromise the Trust’s insurance provision.

38. The Panel considered that these failings would be considered deplorable by fellow practitioners and individually and cumulatively amounted to misconduct.

Decision on Impairment
39. The Panel went on to consider the issue of impairment by reason of the Registrant's misconduct. It had careful regard to all the evidence before it and to the submissions of Mr Lloyd for the HCPC and those prepared by the Registrant. It accepted the advice of the Legal Assessor and had particular regard to the HCPTS Practice Note on “Finding that Fitness to Practise is ‘Impaired’”.

40. The Panel first considered past impairment. It noted its findings that the Registrant had deliberately and dishonestly continued to practise when he was not registered and used the title of Orthoptist. It had also found that the Registrant’s misconduct had breached key standards of the HCPC’s “Standards of Conduct, Performance and Ethics” as set out above, had brought the profession into disrepute and had undermined confidence in the profession. In addition, the Registrant’s misconduct had the potential to put patients at unwarranted risk of harm by misleading them about the qualifications of the Registrant.

41. The Panel went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of that misconduct. In addressing the personal component of impairment, the Panel asked itself whether the Registrant is liable, now and in the future, to repeat misconduct of the kind found proved. In reaching its decision, the Panel had particular regard to the issues of insight and remediation.

42. The Panel noted that in the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin) Mrs Justice Cox stated: “When considering whether or not fitness to practise is currently impaired, the level of insight shown by the practitioner is central to a proper determination of that issue.”

43. The Registrant has submitted a bundle of documents including submissions on the mitigating factors and expressing an apology and remorse. In addition, following consideration of the Panel’s determination on facts the Registrant has submitted a further reflective statement.

44. In the Panel’s view the Registrant has demonstrated developing insight into the seriousness of his misconduct and its impact on colleagues, patients and the profession. The Panel noted that in the Registrant’s most recent reflective piece he had appreciated the seriousness of his failings and had an understanding of its impact on the wider public interest.

45. The Panel had careful regard to Silber J’s guidance in Cohen v GMC [2008] EWHC 581 (Admin) that Panels should take account of:
• Whether the conduct which led to the charge is easily remediable;
• Whether it has been remedied; and
• Whether it is highly unlikely to be repeated.

46. The Panel recognised that remediation of misconduct which involves dishonesty may be less easy than remediation of misconduct involving clinical failings. However, the Panel had regard to the context of the dishonesty. Had he completed the administrative task required of him and paid his fee he would have been entitled to registration. Although there was potential for harm to patient confidence and issues with the Registrant’s insured status there was no direct patient harm. The Panel reminded itself that it did not consider that there had been a deliberate intention to mislead. The Panel accepted the evidence that the Registrant is a very good clinical practitioner. It considered that with the development of meaningful insight the Registrant’s misconduct is remediable. It noted the Registrant’s assurances that he has learned from this experience and his reflection as to the reasons why it arose. The Panel considered that the Registrant’s judgement had been clouded by the very difficult personal circumstances he was experiencing but he had now fully appreciated the effect of these circumstances and had accessed support.

47. The Panel also noted that the Registrant has continued to work as an Orthoptist since the incidents in question, and that there has been no repetition.

48. In light of its findings in relation to insight and remediation, the Panel considered that there is a very low risk that the Registrant would repeat matters of the kind found proved. For these reasons, the Panel determined that a finding of impairment is not required.

49. The Panel then went on to consider whether a finding of impairment is necessary on public interest grounds. In addressing this component of impairment, the Panel had careful regard to the critically important public issues identified by Silber J in the case of Cohen when he said:
“Any approach to the issue of whether .... fitness to practise should be regarded as ‘impaired’ must take account of…the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour.”

50. The Panel considered that honesty and integrity is a cornerstone of the profession and the public rightly expects professionals to be properly registered. The Panel considered that the public would be concerned to learn of the Registrant’s conduct in this matter. Further, the Panel had no doubt that the need to maintain public confidence in the profession, and to declare and uphold proper standards, would be undermined if a finding of impairment of fitness to practise was not made in the circumstances of this case in relation to the Registrant’s failings.

51. For all the reasons set out above, the Panel determined that the Registrant’s fitness to practise is currently impaired on public interest grounds.

Decision on Sanction
52. Having determined that the Registrant’s fitness to practise is currently impaired by reason of his misconduct, the Panel next went on to consider whether it was impaired to a degree which required action to be taken on his registration by way of the imposition of a sanction.

53. The Panel had regard to all of the evidence in the case and the submissions made by Mr Lloyd and the Registrant.

54. The Panel accepted the advice of the Legal Assessor and exercised its independent judgement. The Panel had regard to the Sanctions Policy and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the wider public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

55. The Panel first identified what it considered to be the principal aggravating and mitigating factors in this case.

Aggravating factors:
• The Registrant's conduct persisted over a significant period of time and occurred in more than one period.
• The Registrant’s conduct involved a breach of trust which undermined his relationship with his employer.
Mitigating factors:
• There was no direct patient harm.
• The Registrant has had a lengthy professional career of over 20 years, and there have been no previous regulatory concerns;
• The Registrant had very significant personal and financial issues to deal with at the time of the misconduct;
• The Registrant was unwell at the time of the misconduct;
• The Registrant has apologised and expressed genuine remorse;
• The Registrant has insight and has taken responsibility for his actions;
• The Registrant has taken remedial steps to access support and share concerns with his manager;
• The Registrant has engaged with the HCPC throughout this process.

56. The Panel considered the sanctions available, beginning with the least restrictive. The Panel did not consider the options of taking no further action, or mediation, to be appropriate or proportionate in the circumstances of this case. The Panel considered that in light of the findings made in relation to impairment and the need to uphold proper professional standards these options would not reflect the seriousness of the case.

57. The Panel next considered the imposition of a Caution Order. The Panel noted that this would remain on the Registrant’s record and could be taken into account if a further allegation was made. The Panel took into account the factors in the Sanctions Policy that would make this sanction appropriate and had particular regard to paragraphs 101 and 102.

58. The Panel considered that the Registrant had shown sufficient insight, remorse and remediation and the risk of repetition was low. In addition, it had not found that there was any ongoing risk to patients which would justify restricting the Registrant’s practice. The nature of the allegations are such that no meaningful practice restrictions could be imposed. It was the view of the Panel a Suspension Order would be disproportionate in these circumstances and would deprive the public of a committed and competent Orthoptist. The Panel considered that temporary removal from the Register was not required to uphold the public interest, especially where there was no significant risk of patient harm and the Registrant has substantially remediated the concerns.

59. The Panel considered that to impose a Caution Order would protect the public interest and mark the conduct of the Registrant as unacceptable. It would also serve as a reminder to the Registrant that any repeat of this conduct may lead to a more severe sanction. The Panel considered that in the circumstances a Caution Order for a period of 4 years was appropriate and proportionate and reflected the seriousness of the matters found proved. The Panel considered 4 years was at the higher end of the scale and was sufficient to protect public confidence in the profession.

Order

The Registrar is directed to annotate the Register entry of Mr David Nicholas with a caution which is to remain on the Register for a period of 4 years from the date this order comes into effect.

Notes

Final hearing of the conduct and competence taking place Virtually from Monday 21 September to Wednesday 23 September 2020. The hearing reconvened on 2 October 2020. 

Hearing History

History of Hearings for Mr David Nicholas

Date Panel Hearing type Outcomes / Status
21/09/2020 Conduct and Competence Committee Final Hearing Caution