Mr Miguel Martin Garcia

Profession: Physiotherapist

Registration Number: PH74080

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 12/04/2021 End: 17:00 16/04/2021

Location: Virtual hearing - via video conference

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

From around January 2018, recruited NHS patients receiving treatment at Liverpool Women’s Hospital for an independent research study, but:

a) The independent research study was not authorised by the Trust;

b) The recruitment of the Trust’s patients was not authorised by the Trust;

c) You did not obtain ethical approval from the Trust to conduct the independent research study;

d) You used the Trust’s logo on consent forms for the independent research study without the Trust’s consent to do so;

e) By using the Trust’s logo, you intended to mislead and /or misled patients into believing the treatment was being conducted by and approved by the Trust.

2. During the independent research study, you breached patient confidentiality and data
protection in that you;

a) Did not obtain patient consent for patients’ data to be used as part of the independent
research study;

b) Transferred patient data between the Trust and the private treatment centre without patient consent;

c) Did not seek and / or obtain a data sharing or transfer agreement for the use of the Trust’s patient data for the independent research study.

3. Used the Trust’s resources and the Trust’s outpatient appointments to conduct the independent research study without authorisation by the Trust.

4. The matters described in paragraphs 1(d) and 1(e) were dishonest.

5. The matters described in paragraphs 1-4 constitute misconduct.

6. By reason of your misconduct, your fitness to practise is impaired.

Finding

Preliminary matters:
Virtual Hearing
1. In line with the current guidance from HM Government in relation to the COVID-19 (Coronavirus) pandemic, this hearing was conducted by video-conference in accordance with Rule 2A of the Health and Care Professions Council (Conduct and Competence Committee) Rules 2003 (as amended) (“the Rules”).

Proof of Service
2. The Panel was provided with a Service Bundle which contained:
• A copy of a Notice of Hearing dated 21 January 2021 which had been sent by electronic mail (“email”) to the Registrant’s email address shown on the HCPC Register.
• A Microsoft Outlook Message Delivered Notification confirming that the email containing the Notice of Hearing was delivered to the Registrant’s email address at 4.02pm on 21 January 2021; and
• A certificate dated 21 January 2021, signed by the Registrar, confirming that the Registrant is registered in the Physiotherapist part of the HCPC Register under registration number PH74080. The certificate showed the Registrant’s registered postal and email addresses.
3. The Panel accepted the advice of the Legal Assessor who referred it to Rules 3 and 6 of the Rules.
4. The Panel was satisfied that the Notice of Hearing had been properly served in accordance with Rule 3(b)(ii) (Proof of Service) and Rule 6 (Date, time and venue) of the Rules.

Proceeding in the absence of the Registrant
5. Having determined that service of the Notice of Hearing had been properly effected, the Panel went on to consider whether to proceed in the absence of the Registrant.
6. The Panel heard submissions from Mr Tarbert who invited the Panel to exercise its discretion to proceed in the absence of the Registrant.
7. The Panel accepted the advice of the Legal Assessor who referred the Panel to Rule 11 of the Rules, the HCPTS Practice Note “Proceeding in the absence of the Registrant” and the case of GMC v Adeogba [2016] EWCA Civ 162.
8. The Panel approached its decision with the utmost care and caution and had careful regard to the guidance provided in the HCPTS Practice Note.
9. The Panel determined that it was fair, reasonable and in the public interest to proceed in the Registrant’s absence for the following reasons:
(a) The Panel had regard to the chronology provided by Mr Tarbert and noted that to date, that the Registrant has not engaged in these proceedings. Accordingly, the Panel was satisfied that it was reasonable to conclude that the Registrant’s non-attendance was voluntary and therefore a deliberate waiver of his right to attend and/or be represented at the hearing.
(b) The Registrant has not made an application to adjourn the hearing and there is no evidence that the Registrant would engage with the process or attend the hearing should an adjournment be granted.
(c) The HCPC has made arrangements for four witnesses to give evidence during this hearing by video-conference. The Panel was satisfied that the witnesses should not be inconvenienced and should be able to give evidence whilst the events are reasonably fresh in their minds.
(d) The Panel recognised that there may be a disadvantage to the Registrant in not being able to respond to the HCPC’s case and/or give evidence. However, the Registrant was given the opportunity to participate in these proceedings in person or by submitting written representations and has chosen not to do so. The Panel noted that questions could be asked by the Legal Assessor and/or the Panel to test the reliability of the evidence presented. In addition, the Panel noted that the Hearing Bundle contained notes of meetings with the Registrant that took place during the Trust’s investigation of these matters. During these meetings, the Registrant had responded to the concerns raised against him. In these circumstances, the Panel concluded that any disadvantage to the Registrant was outweighed by the strong public interest in ensuring that the final hearing is conducted expeditiously.

Application to amend the Allegation
10. Mr Tarbert applied to amend particulars 1, 1(c), 2(a), 3 and 4 of the Allegation in the following terms:
 1.   From around January 2018 November 2017, recruited NHS  patients receiving treatment at Liverpool Women’s Hospital for  an independent research study, but:
  (c)  You did not obtain ethical approval from the Trust to conduct  the independent research study;
 2.  During the independent research study, you breached patient  confidentiality and data protection in that you:
  (a) Did not obtain patient consent The consent forms used did  not record consent for patients’ data to be used as part of the  independent research study;
 3. Used the Trust’s resources and/or the Trust’s outpatient  appointments to undertake follow up appointments and/or to  take readings for patients who had been involved in the  research study conduct the independent research study  without authorisation by the Trust.
 4. The matters described in paragraphs 1(d), and 1(e) and/or 3  were dishonest.
11. Mr Tarbert submitted that the Registrant was notified of the proposed amendments by a letter dated 5 June 2020. He submitted that the proposed amendments provided clarification and did not alter the substance of the Allegation. He further submitted that they did not cause any prejudice to the Registrant. 
12. The Panel accepted the advice of the Legal Assessor.
13. The Panel was satisfied that the proposed amendments were minor in nature and did not change the nature or substance of the Allegation. Furthermore, the Panel was satisfied that the proposed amendments better reflected the evidence contained in the Hearing Bundle. The Panel noted that the Registrant had been notified of the proposed amendments in June 2020 and that he had not objected to them. In the circumstances, the Panel was satisfied that the proposed amendments did not cause any prejudice to the Registrant. Accordingly, the Panel decided to allow the amendment in the terms sought.

Background
14. The Registrant commenced employment at the Liverpool Women’s NHS Foundation Trust (“The Trust”) as a Band 6 Physiotherapist on 24 October 2005. As part of his role, the Registrant was responsible for patients referred to the physiotherapy service at Liverpool Women’s Hospital (“LWH”). On 1 October 2016, the Registrant began working as a Band 8a Consultant Physiotherapist.
15. In January 2018, the Registrant commenced an independent research study in relation to tecatherapy, a treatment new to the UK using a new medical device. The Registrant recruited Trust patients to participate in this study. In addition, the Registrant used the Trust’s logo on patient consent forms without the authorisation to do so. The Registrant had previously been informed by the Trust’s Medical Devices Committee and the Trust’s Effectiveness Senate that his proposal for this independent research study constituted a research project and therefore full research project and ethical approval was required. This approval was not obtained by the Registrant.
16. JH was appointed as Investigating Officer by the Trust to undertake a disciplinary investigation in relation to the Registrant’s commencement of the unauthorised tecatherapy independent research study, the recruitment of Trust patients, and alleged data protection breaches in respect of patients’ confidentiality/data.
17. A referral was made to the HCPC on 28 June 2019.

Decision on Facts
18. The Panel reminded itself that the burden of proving the facts is on the HCPC and that the Registrant does not have to prove anything.  Further, a fact is only to be found proved if the Panel is satisfied of it on the balance of probabilities.
19. The Panel considered the documentary evidence contained in the Hearing Bundle and heard evidence from four witnesses called on behalf of the HCPC.
20. The Panel first heard evidence from JH, the Current Head of Strategy and Transformation at the Trust. JH adopted the content of her witness statement dated 16 September 2020. JH confirmed that she was appointed as Investigating Officer by the Trust in relation to the concerns raised about the Registrant. JH stated that as part of her investigation she interviewed a number of individuals including the Registrant in the presence of his union representative. She stated that after the meetings had taken place, her assistant had typed up her notes and the parties were invited to make any corrections. JH was referred to the notes of the interview with the Registrant appended to her witness statement and she confirmed that the handwritten annotations on those notes were made by the Registrant. She stated that during the interview the Registrant appeared angry and frustrated by the process although he was not aggressive.
21. JH stated that as a result of her investigation, she was able to confirm that the Trust had not authorised the recruitment of its patients into the Registrant’s independent research study. JH was asked about the Registrant’s use of the Trust’s logo on the consent forms given to patients. JH stated that the Trust had not given its permission for the logo to be used. She stated that when she had asked the Registrant about this in interview, he had stated that he had originally designed the form using the Trust’s logo when he presented his proposal to the Trust. JH stated that in her view this was a plausible explanation and noted that he had changed the consent form at some point as some did not contain the Trust’s logo.
22. JH was asked why she had only sampled three out of the ten patients involved in the independent research study. She stated that she had chosen to do this so as to minimise the necessity to review confidential patient records. In addition, she explained that she was not personally able to look at Meditech, the Trust’s digital record system and therefore she believed that by sampling three patients, this was a proportionate use of the Trust’s resources and time.
23. JH was also asked to comment on the culture in the physiotherapy department given that several people had made reference to problems arising due to frequent changes in members of staff and management. JH stated that it was difficult for her to comment on the culture within the department as she had been on maternity leave for 13 months prior to being appointed as the Investigating Officer in relation to this matter. She was, however, able to confirm that there had been a substantial number of changes including two senior managers leaving the department at a similar time which may have had a destabilising effect. She stated that the department had interim managers for a time and then the Director of Operations made changes to the management structure which resulted in two roles being combined. JH was asked if this change could have contributed to any misunderstandings on the part of the Registrant. JH stated that it could have done and she could see theoretically how information could have not been passed on correctly.
24. The Panel next heard from LH, a Research and Development Manager at the Trust. Within her role, LH managed the R&D Team and was responsible for the day-to-day operation of research at the Trust.
25. LH adopted the content of her witness statement dated 30 June 2020.
26. LH stated that she has known the Registrant since approximately 2013. She stated that she met the Registrant as a result of him previously undertaking research. She stated that the Registrant had undertaken a clinical trial between 2013 and 2016 and that he was therefore aware of the Trust’s procedures in relation to research projects.
27. LH was asked whether there was a difference between a clinical trial and an observational study. LH stated that there was a difference in that a clinical trial was generally research that was interventional, for example the use of a new drug or medical device. Whereas in an observational study, the clinical care would remain unchanged but the researcher would take advantage of samples and data. LH stated that clinical trials and observational studies are research and therefore, if the Registrant suggested that his independent research study was an observational study and not research, it would not be correct.
28. LH confirmed that the at a meeting on 20 October 2017, the Trust’s Effectiveness Senate decided that the Registrant’s proposal fell under the definition of research as it involved patients being treated with a new medical device to generate new knowledge in relation to the effectiveness of the tecatherarpy treatment. LH stated that the Registrant therefore needed to obtain research and ethical approval. She stated that she spoke to the Registrant immediately after the meeting to discuss the process. She said that the Registrant appeared disappointed but that he understood the Senate’s decision. LH referred the Panel to an email she had sent to the Registrant on the same day as the meeting, confirming the outcome. LH stated that the Registrant did not mention to her that he intended to pursue the project outside of the Trust. She stated that had he done so, she would have advised against it in her email.
29. LH was asked about the consent forms. LH stated that the consent forms used by the Registrant did not include the required elements for them to be ethical and appropriate. She stated that a consent form template was readily available to the Registrant and that it provided guidance as to what should be included on the consent form.
30. LH was asked how long it would have taken the Registrant to get the necessary approvals to undertake the research study from the Trust. LH stated that it would have been a straightforward application and should have taken no longer then three to four months.
31. The Panel also heard evidence from RC, Head of Information Governance at the Trust. RC adopted the content of his witness statement dated 16 June 2020.
32. RC stated that the Trust uses a central risk incident management system called Ulysses. RC stated that on 9 November 2018, the Registrant entered an incident on Ulysses. He stated that the Registrant had reported information had gone missing from his office and that he had intimated that a member of staff was responsible. RC explained that he was one of a number of members of staff who received an automated notification email from the Ulysses system. RC stated that he decided to take control of the situation and deal with the matter as the Registrant’s office was physically a few metres away from his own. RC stated that he had a conversation with the Registrant and asked him what the information was that had gone missing, He said that the Registrant referred to it as research information. In his witness statement and his interview with JH, during the investigation, he said that he had asked the Registrant if he had Trust approval and the Registrant said that he had. RC stated that following the conversation he remembered feeling that something was not quite right and that he had the impression that the Registrant was not being truthful.
33. RC was asked if an employee was required to report missing information on Ulysses immediately or whether it was acceptable to make enquiries first. RC stated that it would depend on the extent of the information. In this case, it was two box folders containing a significant amount of patient information from a gynaecological hospital which had gone missing. RC stated that in his view, he would have expected the employee to use their professional judgement and to use Ulysses to call for support. He stated that time was critical in such situations.
34. RC was asked if someone was trying to hide the existence of information, would they report its loss on Ulysses? RC stated that they would not. He stated that the Registrant’s actions surprised him and were an ‘own goal’. He should have known better. RC was asked whether in his view this suggested a serious error of judgement rather than dishonesty. RC stated that he believed so.
35. Finally, the Panel heard evidence from DW, the former Chief Information Officer at the Trust. DW adopted the content of his witness statement dated 19 August 2020.
36. DW explained the Trust’s confidentiality and data protection policies. He stated that a DTA would be required if there was a request to take data off-site. He stated that there is a process that must always be followed and to his knowledge the Registrant failed to comply with it.
37. DW stated that his primary concern throughout the investigation was in in relation to patient consent and compliance with the law in relation to the transparent collection of data. DW stated that he did not believe that it was transparent. DW stated that he was concerned by the use of the Trust’s logo on the patient consent forms as it was misleading and indicated that the study was approved by the Trust when it was not. In addition to the use of the Trust’s logo, DW had further concerns about the consent forms. DW stated that there was no reference to what data was being collected or how it was going to be used. He stated that there was not even a reference to the Trust privacy notices.
38. The Panel assessed the reliability and credibility of each of the four witnesses. The Panel found all of the witnesses to be straightforward and credible. Their evidence was consistent and in the Panel’s view, they all gave reliable, fair and balanced evidence.
39. The Panel received written closing submissions from Mr Tarbert.
40. The Panel accepted the advice of the Legal Assessor.
41. The Panel made the following findings of fact:
Particular 1(a) Proved
42. The Panel noted that during his interview with JH on 7 January 2019, the Registrant provided a prepared statement in which he accepted that from January 2018, he started discussing a new treatment option with those Trust patients. The Panel was therefore satisfied that patients recruited by the Registrant into the research study were patients that the Registrant had encountered through his treatment of them as a physiotherapist at LWH.
43. The Panel accepted the oral evidence of LH who confirmed that at a meeting on 20 October 2017, the Trust’s Effectiveness Senate decided that the Registrant’s proposal fell under the category of research and required the necessary ethical and HRA approval. The Panel noted that this evidence was consistent with the minutes of the Effectiveness Senate meeting in the Hearing Bundle.
44. The Panel took into consideration the content of the witness statement of LH in which she explained the process for obtaining approval for research, including the requirement that the investigator “produce a protocol for the project and seek sponsorship from the Trust”. The Panel further noted that directly after the Effectiveness Senate, LH stated that she had a conversation with the Registrant and reiterated the Senate’s decision that his proposal was research. LH then sent an email to the Registrant including a link to the online application for the relevant approval. LH then stated that the Registrant “did not follow the process for obtaining research approval” and that he “did not proceed to send an application to the Sponsorship Committee or make an application for approval from the Research Ethics Committee (REC) and Health Research Authority (HRA)”.
45. The Panel was therefore satisfied that the Registrant recruited NHS patients receiving treatment at LWH for an independent research study that was not authorised by the Trust. Accordingly, the Panel found particular 1(a) of the Allegation proved.

Particular 1(b) Proved
46. Having found particular 1(a) of the Allegation proved, the Panel determined that it must logically follow that the Trust could not have authorised the recruitment of Trust’s patients for the independent research study. The Panel therefore found particular 1(b) of the Allegation proved.

Particular 1(c) Proved
47. The Panel noted that in the interview on 7 January 2019, the Registrant stated that “Ethical approval would be required if it was a clinical trial. I can’t remember this being discussed at the meeting but as it was to be done in a private clinic, I wouldn’t need ethical approval”. In addition, the Panel noted that in an email sent by the Registrant to the Private Clinic he stated ““As this is just an observational, prospective study, aiming at collecting data from a small number of patients (10-12) I do not think we need ethics”.
48. However, the Panel accepted the oral evidence of LH that an observational study is still research and still needs ethical approval. The Panel also accepted the evidence in the witness statement of LH in which she stated that the Registrant “did not follow the process for obtaining research approval” and that he “did not proceed to send an application to the Sponsorship Committee or make an application for approval from the REC and HRA”.
49. The Panel was therefore satisfied that the Registrant did not have ethical approval to conduct his independent research study and found particular 1(c) of the Allegation proved.

Particular 1(d) Proved
50. The Panel noted that during his interview on 7 January 2019 the Registrant accepted that he had used the Trust’s logo on the consent forms. He stated “when I designed the forms I thought I was going to be doing the treatment at LWH so that is why I have used the Trust branding”. The Panel further noted that the Registrant appeared to accept in the course of his interview that he should not have used the logo, but suggested that it was due to an oversight.
51. The Panel further noted that there was an example of a patient consent form in the hearing bundle, headed by the Trust logo.
52. The Panel accepted the oral evidence of JH who stated that to the best of her knowledge the Trust had not consented to the use of its logo on the patient consent forms.
53. The Panel also had regard to the evidence of RC and DW who both stated that the Registrant should not have used the Trust’s logo on the patient consent forms because the Trust was unaware of the independent research study and in those circumstances, it could not have provided consent for the use of its logo as part of that study. 
54. The Panel therefore found particular 1(d) of the Allegation proved.

Particular 1(e) Proved (in part)
55. The Panel had regard to the fact that there was no direct evidence from any of the patients involved in the independent research study as none of them had been contacted by the Trust. There was therefore no direct evidence as to whether the inclusion of the Trust’s logo on the patient consent forms caused the patients to believe that the study was approved by the Trust.
56. The Panel noted the witness statement of RC in which he stated that in his opinion, by using the Trust logo on the consent form, the Registrant presented the research as purporting to be on behalf of the Trust when it was not.
57. The Panel also noted the oral evidence of DW who stated that he was concerned by the use of the Trust’s logo on the patient consent forms as it was misleading and indicated the that the study was approved by the Trust when it was not.
58. The Panel next considered whether it was safe to draw the inference that the Registrant intended to mislead the patients. Having regard to the Registrant’s explanation for his use of the Trust’s logo, to JH’s evidence that this could have been an oversight, and to the fact that at some point he stopped using it on some of the patient consent forms, the Panel concluded that this would be a step too far and that it would not be safe to draw such an inference. The Panel therefore found this part of particular 1(e) of the Allegation not proved.
59. Particular 1(e) of the Allegation is drafted in the alternative. The Panel therefore went on to consider whether it was safe to draw the inference that by using the Trust’s logo, the Registrant misled patients into believing the treatment was being conducted by and approved by the Trust. In all the circumstances, the Panel was satisfied that the use of the Trust’s logo on the patient consent forms did mislead the patients into believing that the treatment was being conducted by and approved by the Trust. The Panel therefore found this part of particular 1(e) of the Allegation proved.

Particular 2(a) Proved
60. The Panel accepted the witness statement of RC in which he stated “the consent form was not clear enough with regards to using patient’s data for research”. The Panel noted that RC stated the consent forms “were more geared towards carrying out the procedures and giving information to patients about what was going to happen to them when attending the clinic rather than explaining how their information was going to be used”. RC went on to make clear that “there should have been two consents – one for the clinical aspect and a second concerning the use of patient information”.
61. The Panel also accepted the witness statement of DW in which he stated “the contents of the consent form were also of concern as the consent form did not state that consent was being obtained for a research study. The consent form did not touch upon the matter of patient data at all”.
62. The Panel was therefore satisfied that the consent forms used did not record consent for patients’ data to be used as part of the independent research study. Accordingly, the Panel found particular 2(a) of the Allegation proved.

Particular 2(b) Proved
63. The Panel noted that in his interview on 7 January 2019, the Registrant admitted that “in the beginning I took boxes with me to the private clinic and would bring them back into LWH on the Thursday”.
64. The Panel accepted the witness statement of RC in which he which he stated the Registrant “required patient consent in order to transfer the patient data between the Trust and the private clinic”.
65. The Panel also accepted the witness statement of DW in which he stated that the Registrant “needed to obtain patient consent to use or transfer the patient’s data”.
66. The Panel therefore concluded that the Registrant transferred patient data, in the form of medical records, between the Trust and private clinic, without obtaining the consent of those patients. The Panel therefore found particular 2(b) of the Allegation proved.

Particular 2(c) Proved
67. The Panel accepted the witness statement of RC in which he stated “we would have expected him to obtain a data sharing or transfer agreement in order to use the Trust’s patient data for the independent research study. There should have been a formal document in existence such as a sharing agreement, contract or service level agreement.” The Panel also accepted the oral evidence of RC in which he explained that any data transfer/sharing agreement would have been arranged through him and that to the best of his knowledge the Registrant did not obtain any such agreement.
68. The Panel also had regard to the witness statement of DW in which he stated “Whenever a person is providing information to any individual or organisation who will use that information, they should have access to that individual or organisation’s Data Sharing Agreement.”
69. The Panel noted that the patient consent forms exhibited in the Hearing Bundle do not refer to any data sharing or transfer agreement being in place. 
70. The Panel therefore found particular 2(c) of the Allegation proved.

Particular 3 Proved
71. The Panel noted that in his interview on 7 January 2019, the Registrant admitted that he would see patients for a follow-up appointment at LWH after the course of private treatment.
72. The Panel accepted the witness statement of JH in which she stated “Following the six sessions treatment provided to the patient by the Registrant at the Physiotherapy Centre, he would then arrange for the patient to have a follow-up appointment at LWH. In my view, this raised the issue of the use of Trust resources.”
73. The Panel was therefore satisfied that the Registrant used the Trust’s outpatient appointments to undertake follow up appointments and/or to take readings for patients who had been involved in the research study without  authorisation by the Trust. The Panel therefore found particular 3 of the Allegation proved.

Particular 4 Proved (in part)
74. The Panel applied the test in respect of dishonesty set out in the case of Ivey v. Genting Casinos [2017] UKSC 67: “Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If, by ordinary standards, a defendant’s mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards.”
75. The Panel first considered whether the Registrant had acted dishonestly in respect of particulars 1(d) and (e) of the Allegation. The Panel noted the Registrant’s explanation as to why he had used the Trust’s logo. The Panel also had regard to the fact that it has found that the Registrant did not intend to mislead patients by his use of the Trust’s logo. Taking these matters into consideration, the Panel was not satisfied on the balance of probabilities that the Registrant had acted dishonestly in relation to his unauthorised use of the Trust’s logo on the patient consent forms. The Panel therefore found particular 4 not proved in respect of particulars 1(d) and 1(e) of the Allegation.
76. The Panel next considered whether the Registrant acted dishonestly in respect of particular 3 of the Allegation.
77. The Panel noted that the Registrant is a senior Band 8a Consultant Physiotherapist who would have been fully aware that outpatient appointments at the LWH should have only been used for NHS patients. The Panel has found that the Registrant’s independent research study was conducted without the knowledge or approval of the Trust, and as such there is no reason why the Registrant should have used NHS outpatient slots and facilities to conduct follow up assessments with study participants and therefore depriving NHS patients of being seen at those appointments.
78. The Panel also accepted the evidence of JH that the Registrant’s conduct “raised the issue of the use of Trust resources.”
79. Applying the test as set out in the case of Ivey, the Panel was satisfied that the Registrant’s use of these outpatient appointments at LWH thereby using NHS resources without the authorisation of the Trust, would be viewed as dishonest within the objective standards of ordinary decent people.
80. The Panel therefore found particular 4 of the Allegation proved in respect of particular 3 of the Allegation.

Decision on Grounds
81. The Panel was provided with written submissions from Mr Tarbert on behalf of the HCPC.
82. The Panel accepted the advice of the Legal Assessor as to the approach it should adopt when considering the question of misconduct. The Panel recognised that the decision on the statutory grounds is a matter of independent judgement for the Panel. It is not a matter of proof for the parties.
83. The Legal Assessor referred the Panel to the definition of misconduct provided by Lord Clyde in Roylance v GMC (No.2) [2001] 1 AC 311:
 “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.”
84. The Legal Assessor also referred the Panel to the HCPTS Practice Note and to the case of Meadow v GMC [2006] EWCA Civ 1319, which made clear that a finding of misconduct by the Panel requires serious professional misconduct on the part of the Registrant.
85. The Panel first considered whether the Registrant breached the “rules and standards ordinarily required to be followed” by him. The applicable rules and standards being the HCPC Standards of Conduct, Performance and Ethics (January 2016) and the HCPC Standards of Proficiency for Physiotherapists (May 2013).
86. The Panel was satisfied that the Registrant had breached the following parts of The HCPC Standards of Conduct, Performance and Ethics (January 2016):
(i) 1.4 You must make sure that you have consent from service users or other appropriate authority before you provide care, treatment or other services
 The Panel determined that Standard 1.4 was engaged having regard to the facts found proved in relation to particulars 1(a), 1(b) and 1(c) of the Allegation.
(ii) 5.1 You must treat information about service users as confidential
 The Panel determined that Standard 5.1 was engaged having regard to the facts found proved in relation to particulars 2(a), 2(b) and 2(c) of the Allegation.
(iii) 9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession
 The Panel determined that Standard 9.1 was engaged having regard to the facts found proved in relation to particulars 1(a), 1(b), 1(c), 1(d), 1(e), 2(a), 2(b), 2(c), 3 and 4 of the Allegation.
(iv) 9.3 You must make sure that any promotional activities you are involved in are accurate and are not likely to mislead
 The Panel determined that Standard 9.3 was engaged having regard to the facts found proved in relation to particulars 1(d) and 1(e) of the Allegation.
(v) 9.4 You must declare issues that might create conflicts of interest and make sure that they do not influence your judgement.
 The Panel determined that Standard 9.4 was engaged having regard to the facts found proved in relation to particular 3 of the Allegation.
87. In addition to the above, the Panel was also satisfied that the Registrant had breached the following parts of The HCPC Standards of Proficiency for Physiotherapists (May 2013):
(i) 2.6 Understand the importance of and be able to obtain informed consent
 The Panel determined that Standard 2.6 was engaged having regard to the facts found proved in relation to particulars 1(d), 1(e), 2(a), 2(b) and 2(c), of the Allegation.
(ii) 7.2 Understand the principles of information governance and be aware of the safe and effective use of health and social care information.
 The Panel determined that Standard 7.2 was engaged having regard to the facts found proved in relation to particulars 2(a), 2(b) and 2(c) of the Allegation.
88. The Panel recognised that not every failure to comply with the provisions of the HCPC Standards will necessarily result in a finding of misconduct. However, the Panel took the view that the Registrant’s multiple breaches of different aspects of the HCPC Standards were very serious.
89. Insofar as particulars 1(a)-(e) of the Allegation are concerned the Panel was satisfied that as an experienced Band 8a Consultant Physiotherapist who had previously conducted research, the Registrant fully understood the Trust’s Effectiveness Senate’s decision and the procedures for obtaining the relevant approval. In the Panel’s view, the Registrant knew that he needed ethical approval for research that involved a clinical intervention using a device that had not previously been used in the UK. The Panel was satisfied that by his actions, the Registrant ignored those procedures and proceeded to recruit NHS patients for his unauthorised study. In the Panel’s view, the Registrant increased the seriousness of his misconduct by misleading those patients by using the Trust’s logo on the patient consent forms thereby giving the false impression that the study was approved by the Trust.
90. Turning to particulars 2(a)-(c) of the Allegation, the Panel was satisfied that these were extremely serious breaches of the Trust’s patient confidentiality and data protection procedures. The Panel was satisfied that as a senior practitioner, the Registrant would have been fully aware of the need to obtain informed consent from the patients for their data to be used and that he would have also been aware that it was crucial to obtain a data sharing or transfer agreement. Again, in the Panel’s view, the Registrant ignored these requirements. The Panel also noted that the Registrant accepted during the Trust investigation that he had physically taken patients’ medical records off-site to the private clinic. The Panel regarded these breaches of the Trust’s patient confidentiality and data protection procedures as serious.
91. In relation to particulars 3 and 4 of the Allegation, the Panel has found that the Registrant knew that it was completely inappropriate for him to use NHS resources for work that was not NHS treatment and that his actions in this regard were dishonest.
92. In view of all of the circumstances, the Panel was satisfied that the Registrant’s behaviour amounted to serious professional misconduct that would rightly be characterised as deplorable by fellow practitioners and the wider general public.
93. The Panel therefore, found the statutory ground of misconduct to have been made out.
Decision on Impairment
94. The Panel next considered whether the Registrant’s fitness to practise is impaired by reason of his misconduct.
95. The Panel was provided with written submissions by Mr Tarbert on behalf of the HCPC.
96. The Panel accepted the advice of the Legal Assessor.
97.  In reaching its decision, the Panel was mindful that the question of impairment is a matter for the Panel’s professional judgement. The Panel noted that it was required to determine whether the Registrant’s fitness to practise is currently impaired. The Panel had regard to the decision in the case of Meadow v General Medical Council [2007] 1 All ER:
 “in short, the purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FTPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evidence that it will have to take account of the way in which the person concerned has acted or failed to act in the past”
98.  The Panel also had regard to the HCPTS Practice Note “Fitness to Practise Impairment” (December 2019) and noted the two components that the Panel must consider when determining whether or not the Registrant’s fitness to practise is currently impaired.
99. The Panel first considered the personal component. In accordance with the decision in the case of Cohen v GMC (2008) EWHC 581, the three key questions for it to determine were:
• Is the Registrant’s misconduct remediable;
• Has the Registrant already taken remedial action; and
• Is the misconduct likely to be repeated?
100. In the Panel’s view, the Registrant’s misconduct is capable of remediation. However, the Registrant has chosen not to engage with these proceedings and has chosen not to provide any written submissions or evidence for the consideration of the Panel. This meant that the only evidence from the Registrant available to the Panel was his response to the allegations during the Trust’s investigation, in which he appeared to be seeking to justify his actions. In these circumstances, the Panel had no evidence of insight or personal reflection from the Registrant and no evidence of any remedial action he may have taken. The Panel was therefore driven to conclude that there must be a risk of repetition of the misconduct and therefore a consequential risk of harm to patients.
101. The Panel was therefore satisfied that a finding of current impairment was required in relation to the personal component.
102. The Panel next considered the public component of impairment. The Panel noted that this has three aspects to it, namely protection of the public, maintaining professional standards and maintaining public confidence in the profession.
103. The Panel adopted the approach as set out by Cox J in the case of CHRE v Grant [2011] EWHC 927 (Admin) in which she stated:
“In determining whether a practitioner’s fitness to practice is impaired by reason of misconduct, the panel should generally consider not only whether the practitioner constitutes a present 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.”
104. In Grant, Cox J also cited with approval the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her 5th Shipman report:
“Do our findings of fact in respect of the doctor’s misconduct, deficient professional practice, adverse health, conviction or caution show that his/her fitness to practice is impaired in the sense that he or she
(a) has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
(b) has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or
(c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or
(d) has in the past acted dishonestly and/or be liable to acts of dishonestly in the future.

105. The Panel was satisfied that although there is no evidence that any patient was harmed, patients were nevertheless put at risk of unwarranted harm. The patients involved in the independent research study were misled into believing that it had been approved by the Trust. In, reality the patients were treated with a new medical device, that had not previously been used in the UK, in a context where it was not clear who would have been responsible had something gone wrong.
106. The Panel was satisfied that on the basis of the misconduct found proved in this case, the Registrant has brought the profession into disrepute. The Panel has also found that the Registrant acted dishonestly in relation to particular 3 of the Allegation. In the Panel’s view, this amounted to a breach of a fundamental tenet of the profession.
107. For these reasons, the Panel concluded that the Registrant has acted in such a way that all four limbs of Dame Janet’s formulation for determining impairment are engaged. Furthermore, on the evidence available, the Panel was satisfied that the Registrant is liable to do so again in the future.
108. Given the seriousness of the misconduct in this case, the Panel was satisfied that a finding of current impairment is also required to uphold proper professional standards and maintain confidence in the profession.
109. In conclusion, the Panel decided that the Registrant’s fitness to practise is currently impaired on both the personal and public components.

Decision on Sanction
110. The Panel next considered what if any sanction to impose.
111. The Panel received written submissions from Mr Tarbert on behalf of the HCPC.
112. The Panel accepted the advice of the Legal Assessor who referred the Panel to the HCPC Sanctions Policy (March 2019).
113. In reaching its decision on sanction, the Panel has again given careful consideration to all of the evidence, to the written submissions of Mr Tarbert, and to its findings at the fact-finding, grounds and impairment stages of this hearing. 
114. The Panel reminded itself that the primary purpose of sanction is to address public safety, to uphold proper professional standards and to maintain public confidence in the profession and in the regulatory process.
115. The Panel had regard to the HCPC Sanctions Policy and was mindful of the need to ensure that any sanction imposed is both reasonable and proportionate, properly balancing the interests of the Registrant against the need to protect the public, maintain professional standards and maintain public confidence in the profession.
116. The Panel noted that it should impose no greater restriction on the Registrant’s ability to practise as a physiotherapist than is absolutely necessary to protect the public and to address the wider public interest aspects of the case. The Panel therefore considered each of the available sanctions in ascending order before determining the appropriate and proportionate sanction in this case.
117. The Panel has already found that the Registrant’s conduct amounted to serious professional misconduct involving wide-ranging breaches of the applicable HCPC Standards. In accordance with the HCPC Sanctions Policy, the Panel went on to consider what, if any aggravating and mitigating factors are present in this case.
118. In relation to aggravating factors the Panel identified the following:
• The Registrant breached the trust of his employer in a number of ways. He did not inform the Trust that he would be pursuing the research study externally to the Trust and that he would be recruiting NHS patients into the study. He did not ask for permission to use the Trust logo on the patient consent forms used as part of the study. He did not obtain a data sharing or transfer agreement in relation to the use of patient data at the private clinic. Furthermore, he did not obtain consent from the Trust to use NHS outpatient appointment slots for follow-up appointments with patients from the independent research study;
• The Registrant breached the trust of his patients. Through his use of the Trust logo the Registrant misled patients into thinking that the treatment had the approval and authorisation of the Trust when it did not. In addition, the Registrant failed to obtain written consent from the patients to use their data as part of an independent research study and to transfer their data between the Trust and private clinic;
• There is no evidence of insight, remorse or apology from the Registrant; and .
• There is no evidence of remediation by the Registrant.
119. In respect of mitigating factors, the Panel identified the following:
• There is no evidence that any of the patients involved in the independent research study were actually harmed. The Panel noted that although the patients were put at risk of harm, the Registrant reported during the Trust investigation that they had benefited from the clinical intervention;
• This was a single episode, although ten patients were involved in the independent research study;
• The Registrant is of previous good character and has no previous regulatory findings recorded against him. He appears to have been well regarded prior to this incident; and
• The Registrant’s motivation to behave in the manner that he did was to try and help patients who had not responded to the standard NHS care available. In addition, the Panel noted that the Registrant did not benefit financially from his involvement in the independent research study. He treated the patients without himself being paid and in his own time.
120. Given that the Panel has found that the Registrant acted dishonestly, the Panel had particular regard to paragraphs 55-58 of the Sanctions Policy. The Panel was mindful that dishonesty incorporates a wide range of behaviour and wrong-doing. In the Panel’s view, the Registrant’s dishonesty in this case was towards the lower end of the spectrum. The Panel reached this decision on the basis that the Registrant’s actions were not motivated by financial gain but by a desire to help patients and that the dishonesty was limited to a single episode although it involved several patients involved in the independent research study.
121.  The Panel next considered what, if any sanction it should impose.
122. The Panel first considered taking no further action, but decided that the misconduct found proved was too serious for this to be appropriate.
123. The Panel next considered Mediation. Mediation is intended to resolve issues between the Registrant and another party. The Panel determined that this would not be an appropriate sanction given the circumstances of this case.
124. The Panel then considered whether a Caution Order would adequately protect the public and meet the public interest concerns identified by the Panel. However, having regard to the seriousness of the misconduct and absence of any insight or engagement by the Registrant in the regulatory process, the Panel determined that a Caution Order would not be an appropriate or proportionate sanction.
125. The Panel next considered whether a Conditions of Practice Order would be an appropriate sanction but was of the view that workable conditions of practice could not be formulated that would adequately address the concerns arising from the Registrant’s misconduct in this case. The Panel had no information before it in relation to the Registrant’s current circumstances and/or his willingness to engage with such an order. Furthermore, the Panel was of the view that a Conditions of Practice Order would not meet the public interest as it would be insufficient to mark the seriousness of the Registrant’s misconduct.
126. The Panel therefore went on to consider a suspension order. The Panel was satisfied that the Registrant’s misconduct was sufficiently serious to warrant such as order. The Panel was also satisfied that a period of suspension would both protect the public and also mark the wider public interest. The Panel was mindful that the Registrant has demonstrated no insight into his failings because he has not engaged in these proceedings and has not presented any evidence of remediation or reflection. However, the Panel remained of the view that the Misconduct found proved was capable of remediation if the Registrant engaged in the process. The Panel therefore decided that the appropriate and proportionate sanction in this case was a Suspension Order for a period of 12 months.
127. In reaching this decision, the Panel also gave very careful consideration to the imposition of a Striking-Off Order. The Panel’s decision to impose a Suspension Order was finely balanced. The Panel was just persuaded to impose a Suspension Order on the basis that the Registrant be given one final opportunity to engage in this process. In the Panel’s view, the Registrant must present to the reviewing panel cogent evidence of his insight, remorse and remedial actions in order to demonstrate that there is no longer a risk of repetition.

Order

ORDER: That the Registrar is directed to suspend the Register entry of Mr Miguel Martin Garcia for a period of 12 months from the date on which this Order comes into effect.

Notes

The Order imposed today will apply from 14 May 2021 if no appeal is made.

This Order will be reviewed again before its expiry.


Right of Appeal:
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health and Social Work Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you.  The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Interim Order:
Proceeding in the absence of the Registrant
1. Mr Tarbert referred the Panel to the second page of the Notice of  Hearing dated 21 January 2021, which made clear to the  Registrant that in the event of the Panel imposing a sanction, the  Panel has the power to impose an Interim Order to cover the  statutory period during which the Registrant may exercise his  right of appeal.
2. Mr Tarbert submitted that in these circumstances, the Registrant  is on notice that an application for an Interim Order may be made.  Mr Tarbert further submitted that on the basis of the same  reasoning that the Panel decided to proceed with the substantive  hearing in the Registrant’s absence, it should also proceed to  hear an application for an Interim Order in his absence.
3. The Panel accepted the advice of the Legal Assessor.
4. The Panel was satisfied that the Registrant was on notice that an  application for an Interim Order could be made by the HCPC. The  Panel decided that it was fair, reasonable and in the public  interest to proceed with the Interim Order application in the  Registrant’s absence for the same reasons as set out at  paragraph 9 above.
Application for an Interim Suspension Order
5. The Panel considered whether to exercise its discretionary power  to make an Interim Order under Article 31(2) of the Health and  Social Work Professions Order 2001. 
6. The Panel heard submissions from Mr Tarbert that an Interim  Suspension Order is necessary to protect the public and is also  in the wider public interest given the Panel’s decision in this case.
7. The Panel accepted the advice of the Legal Assessor.
8. The Panel had regard to the HCPC Sanctions Policy and noted  that the making of an Interim Order is not automatic but depends  on the circumstances of the case.
9. The Panel was satisfied that, having found the Registrant’s fitness  to practise impaired on grounds of public protection and the wider  public interest and that the appropriate and proportionate  sanction in this case was a Suspension Order for a period of 12  months, that an Interim Order is necessary to cover the statutory  period during which the Registrant may exercise his right of  appeal.
10. The Panel’s reasons for imposing the Interim Suspension Order  were the same as its reasons for imposing the substantive  Suspension Order as a sanction in this case.
11. The Panel therefore decided to impose an Interim Suspension  Order for a period of 18 months.
12. This Interim Suspension Order will expire: (if no appeal is made  against the Panel’s decision and Order) upon the expiry of the  period during which such an appeal could be made; (if an appeal  is made against the Panel’s decision and Order) the final  determination of that appeal, subject to a maximum period of 18  months.

Hearing History

History of Hearings for Mr Miguel Martin Garcia

Date Panel Hearing type Outcomes / Status
12/04/2021 Conduct and Competence Committee Final Hearing Suspended