Mr Dean Mcnally

Profession: Physiotherapist

Registration Number: PH103908

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 17/03/2021 End: 17:00 19/03/2021

Location: Virtual hearing via video conference

Panel: Conduct and Competence Committee
Outcome: Impaired - no further action

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Allegation

While registered as a Physiotherapist with the Health and Care Professions Council, you:

1. On 7 December 2017, at Las Vegas Justice Court, were convicted of Battery.

2. On a date in March 2018 and 9 April 2018, at Letterkenny Court, were ordered to pay a total of 2500 euros compensation to person X having assaulted him on 4 March 2017.

3. Failed to inform your employer, Southern Health and Social Care Trust and/or the  Health and Care Professions Council immediately and/or as soon as possible that youhad been charged with a criminal offence in Letterkenny Court in March 2017.

4. Failed to declare to your employer, Southern Health and Social Care Trust the fact that you practiced elsewhere as a physiotherapist.

5. Your actions described at particulars 3 and/or 4 above were dishonest and/or showed a lack of integrity.

6. Your actions at particular 2, 3, 4 and/or 5 amount to misconduct.

7. By reason of your conviction and misconduct, your fitness to practise is impaired.

Finding

Preliminary Matters

Amendment

1. Mr Millin for the HCPC made an application to amend:

i. Particular 5 by substituting the word “trustworthiness” with the word “integrity”.
ii. Particular 7 to replace ‘and’ with ‘and/or’

2. In relation to Particular 5, it was submitted that no unfairness or prejudice would be caused to the Registrant by reason of the proposed amendment, because the words were arguably interchangeable, and the amendment did not alter the gravamen of Particular 5.

3. Following a query from the Panel, the HCPC also sought to amend Particular 7. The amendment was to add ‘/or’ after the work ‘and’ in order for the Particular to be read disjunctively. The HCPC submitted that this amendment was due to an oversight and it was not the HCPC’s intention for a conviction and misconduct to be established before the Panel could consider impairment.

4. The amendments were not opposed by Mr Hamill who appeared on behalf of the Registrant.

5. The Panel accepted the advice of the Legal Assessor who advised that any amendment should be fair to both parties and should not cause injustice to the party it affected.

6. In view of the agreement and exercising its own independent judgment, the Panel considered that the amendments were fair and could be made without injustice to the Registrant.

7. The new Particulars will read as follows:

5.Your actions described at particulars 3 and/or 4 above were dishonest and/or showed a lack of integrity

7.By reason of your conviction and/or misconduct, your fitness to practise is impaired.

 

Private

8. Mr Hamill for the Registrant made an application for matters relating to the Registrant’s health to remain in private.

9. Mr Millin for the HCPC did not object to this application.

10. The Panel accepted the advice of the Legal Assessor, who invited the Panel to consider Rule 10(1)(a) of the Consolidated Fitness to Practise Rules 2003, which provides as follows:

“the proceedings shall be held in public unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of the Registrant, the complainant, any person giving evidence or of any patient or client, the public should be excluded from all or part of the hearing.”

11. The Panel granted the application and was satisfied that hearing matters relating to the Registrant’s health in Private was necessary in the interests of justice and to protect the private life of the Registrant.

12. Exercising the principle of proportionality, the Panel determined that only matters relating to the Registrant’s health would be heard in private with all other matters being considered in public.


Background

13. The Registrant is a Physiotherapist who has been employed in various roles by Southern Health and Social Care Trust, Northern Ireland (“the Trust”). During the relevant period, the Registrant was employed as a Band 6 Physiotherapist in Paediatrics. In his role he was responsible for children with developmental delay and physical disabilities. He was also responsible for supervising Band 5 Physiotherapy staff, Physiotherapy students and support staff.

14. On 22 November 2017, it came to the attention of the Trust that the Registrant had been involved in an incident whilst on a ‘stag do’ holiday in Las Vegas and would not be able to return back to work on 23 November 2017 as planned.

15. On 24 November 2017, through internet searches, the Trust learnt that a charge had been made against the Registrant for the alleged inappropriate touching of a 12-year-old girl on 19 November 2017 and that he had been detained by the police in Las Vegas. The Registrant denied the charge.

16. On 28 November 2017 a Fitness to Practise referral was made by the Trust to the HCPC.

17. The Registrant was held in prison in Las Vegas from 19 November 2017 to 8 December 2017, when the charge of ‘Lewdness towards a Minor’ was dropped and replaced with a charge of ‘Simple Battery towards a Person’. This was accepted by the Registrant as a plea bargain to allow him to be released and return home to Northern Ireland.

18. The Registrant was on sick leave from 1 December 2017 and returned to work on 9 March 2018.

19. On 13 March 2018, the Trust became aware of a separate criminal case pending against the Registrant, via an online news article. It suggested that, on 4 March 2017, the Registrant had assaulted an elderly man after a row at a chip shop and was subsequently charged and appeared before the Letterkenny District Court (‘the Letterkenny matter’).

20. On 9 April 2018 the charges against the Registrant in respect of the Letterkenny matter were dropped as the Registrant complied with an order to pay the victim compensation in the sum of 2500 euros.

21. The discovery of this matter resulted in a further investigation by the Trust. During the investigation it came to light, through a number of character references provided by the Registrant, that he had been undertaking secondary employment and had failed to declare this information to the Trust.

Decision

22. At the outset of the hearing the Registrant made full admissions to Particulars 1-4 but denied Particular 5.

23. The Panel heard oral evidence from:
i. Witness 1 (Head of Physiotherapy at the Trust)
ii. Witness 2 (Investigating Officer)
iii. The Registrant
iv. Witness R1 (a character witness for the Registrant)

24. The statement of Witness 3 (Case Manager within the Fitness to Practise Department at the HCPC) was agreed by the parties and read into the record. Amongst other matters, the Witness referred to the duty on Registrants to notify the HCPC of any criminal charges made against them, referring to Standard 9.5 of the HCPC’s Standards of Conduct, Performance and Ethics.

25. The Panel considered that Witness 1 gave her oral evidence in a fair and balanced manner. The Panel considered that it could rely on her evidence. She spoke of the Registrant positively in relation to his professional values and exemplary behaviour towards patients and colleagues as well as his practice. She confirmed that the Registrant continued to be employed by the Trust.

26. The Panel considered that the oral evidence of Witness 2 was of limited assistance, in that she was not asked to add anything above that which was contained within her written statement. On being questioned by the advocates, she confirmed certain paragraphs therein.

27. The Panel next considered the Registrant’s oral evidence. The Panel found the Registrant to be an impressive witness. He was honest and open with the Panel. Although, on questioning, his description of the Letterkenny matter appeared to lay some responsibility for the verbal argument on the victim of the assault, he did not seek to pass blame for his subsequent physical actions and took full responsibility. He was reflective and remorseful. The Panel considered that he provided an authentic account without embellishing it, and at times his desire to be candid appeared to be to his own detriment. When the Registrant was pressed in relation to the Letterkenny matter as to the precise details, it considered the Registrant was consistent in his account and open as to how he felt. Overall, the Panel considered the Registrant to be a credible and reliable witness.

28. Witness R1 was a character witness for the Registrant and gave a glowing account of the Registrant’s character. The Panel accepted that Witness R1’s experience of knowing the Registrant over a 14-year period was extremely positive, working with the Registrant in relation to community and sporting matters. When she learnt of the Registrant’s actions in relation to the Letterkenny matter, she said she was “shocked” and considered the Registrant’s behaviour to be “out of character”. She said the Registrant had learnt from the experience, was remorseful and wished to move on with his life.

Particular 1

29. Particular 1 states as follows:

“On 7 December 2017, at Las Vegas Justice Court, were convicted of Battery.”

30. The Registrant admitted this Particular.

31. The allegation concerned the time when the Registrant had attended a friend’s ‘stag do’ in Las Vegas. On 19 November 2017, he was detained by the police there and charged with touching a minor inappropriately.

32. Initially, the Registrant was charged with 'Lewdness towards a Minor’ but this was dropped and a charge of 'Simple Battery towards a Person' was accepted as a plea bargain, to allow the Registrant to be released and return home.

33. During the Registrant’s time in Las Vegas and upon his return, the evidence shows that the Registrant provided full disclosure about the incident in Las Vegas to the Trust. Witness 1 also confirmed in oral evidence that the Trust was not concerned about this incident since the Registrant’s US lawyers had confirmed to them that the conviction was in no way sexual or violent, but rather a simple misdemeanour.

34. Mr Millin for the HCPC and Mr Hamill for the Registrant agreed that the conviction for battery in Las Vegas was equivalent to and amounted to a conviction under English law. In doing so the Panel was referred to the following law:

Section 22(1)(a)(iii) The Health Professions Order 2001:

“a conviction or caution in the United Kingdom for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence”

Rule 10(1)(d) of the Consolidated Fitness to Practise Rules 2003:

“Where the registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction shall be admissible as proof of that conviction and of the findings of fact upon which it was based."

The HCPC Practice Note ‘Conviction and Caution Allegations’:

“evidence that a person has been convicted of an offence is generally admissible in civil proceedings as proof that the person concerned committed that offence, regardless of whether or not the person pleaded guilty to that offence…the panel’s task is to determine whether FTP is impaired, based upon the nature, circumstances and gravity of the offence concerned.”

35. The Panel considered the evidence in relation to the Las Vegas matter. The register of the court record dated between 22 November 2017 and 7 December 2017 confirmed that the Registrant pleaded guilty to a lesser offence of battery and was released from custody on 7 December 2017.

36. The Panel accepted the agreed position of the parties, namely that the conviction in Las Vegas was equivalent to a conviction in the UK.

37. Having considered all the evidence, as well as the Registrant’s admission, the Panel found this Particular proved.

38. As the fact of the conviction will fall to be considered at the impairment stage, the parties indicated to the Panel that they would endeavour to agree the factual basis for the Las Vegas incident prior to the Panel considering the issue of impairment.

Particular 2

39. Particular 2 states as follows:

“On a date in March 2018 and 9 April 2018, at Letterkenny Court, were ordered to pay a total of 2500 euros compensation to person X having assaulted him on 4 March 2017.”

40. The Registrant admitted this Particular, and specifically that he did assault person X.

41. The bare facts are that on 4 March 2017 the Registrant assaulted Person X outside a chip shop and was charged with assault.

42. On 9 April 2018 the Letterkenny District Court agreed to strike out all charges against the Registrant, with no conviction being recorded against him, on the basis that the Registrant pay a total of 2500 euros’ compensation to Person X. The Registrant accepted these terms.

43. In view of the Registrant’s admission, and considering the evidence above, the Panel found this Particular proved in its entirety.

44. The Panel noted that the procedure adopted by the Letterkenny court meant that there was no agreed factual basis for the incident. The parties informed the Panel that they would endeavour to agree a factual basis, prior to the Panel considering whether this Particular amounts to misconduct.

Particular 3

45. Particular 3 states as follows:

“Failed to inform your employer, Southern Health and Social Care Trust and/or the Health and Care Professions Council immediately and/or as soon as possible that you had been charged with a criminal offence in Letterkenny Court in March 2017.”

46. The Registrant admitted this Particular.

47. The full circumstances of this Particular will be set out under Particular 5. However, it is common ground that the Registrant was charged with the criminal offence on or about 4 March 2017 and did not report the fact that he had been charged with the offence to the HCPC immediately and/or as soon as possible. He only did so after a meeting with the Trust on 14 March 2018.

48. In view of the Registrant’s admission and after undertaking its own independent review of the evidence, the Panel found this Particular proved.

Particular 4

49. Particular 4 states as follows:

“Failed to declare to your employer, Southern Health and Social Care Trust the fact that you practiced elsewhere as a physiotherapist.”

50. The Registrant admitted this Particular.

51. The basis of the HCPC’s case was that the Registrant had failed to declare his secondary private employment on the “Declaration of Interests Form” dated 14 July 2017, by ticking the box indicating that he did not have any known actual or perceived conflict of interest.

52. Mr Millin referred the Panel to the Trust’s ‘Conflict of Interest Policy’ which included an obligation on clinical staff to declare any private practice, which may give rise to any perceived conflict of interest, or which was otherwise relevant to the proper performance of their contractual duties.

53. The Panel noted the Registrant’s terms and conditions of employment dated 22 January 2015 which obliged the Registrant to notify his manager of any work commitments outside the Trust, as well as an obligation to declare any personal or associated business or financial interests.

54. Witness 1 in her written statement indicated that staff were expected to disclose an interest if they were working privately or voluntarily, such that it may cause a potential conflict.

55. The Panel considered that on a strict interpretation of Particular 4, all that was required of the Registrant was to declare to his employer the fact that he practised elsewhere as a physiotherapist. The Particular did not specify whether this had to be done in writing or orally.

56. The Panel accepted the oral evidence of the Registrant, namely that he had orally informed his employers of his private work at the time he signed the written declaration in 2017. The Panel accepted that the Registrant asked the advice of two colleagues; a band 6 physiotherapist and a line manager who was a band 7 physiotherapist.

57. Further, the Panel also accepted that the Registrant’s evidence that prior to signing the declaration, he had informed his colleagues of his private practice, since this practice was commonplace amongst physiotherapists within the Trust. The Registrant had been working in a private context for 2 years prior to signing the form in 2017, and the Panel found it more likely than not that his managers and colleagues would have been aware of his private work. On balance, the Panel did not consider that the Registrant was attempting to hide the fact that he was undertaking such private work alongside his work for the Trust.

58. Accordingly, and despite the Registrant’s admission, and on the basis of all the evidence, the Panel found this Particular not proved.

Particular 5

59. Particular 5 states as follows:

“Your actions described at particulars 3 and/or 4 above were dishonest and/or showed a lack of integrity.”

60. Mr Millin referred to and relied on his skeleton argument. He relied on the Registrant’s admissions in relation to Particulars 1-4 but acknowledged that the Panel would have to be satisfied that the Particulars were made out on the evidence.

61. Mr Millin submitted that the Panel should find that the Registrant was dishonest in respect of Particular 3 (the Letterkenny matter) as he should have reported the matter to his line manager, HR or the HCPC, notwithstanding the advice to the contrary he had received from his solicitor. Mr Millin said given his ‘brush with the law’ the previous November in Las Vegas, the Registrant was fearful for his position at the Trust and therefore had a major incentive not to inform his employer. Mr Millin said that the Registrant’s explanation that he was relying on legal advice was an excuse.

62. In respect of Particular 4, Mr Millin said he relied on the Registrant’s admission in evidence that he had acted dishonestly by signing a declaration when he had failed to read the full policy before doing so.

63. Conversely, Mr Hamill submitted that whilst the Registrant had made that admission, he also stated that he did not have a ‘dishonest intent’ when he signed the declaration.

64. Mr Hamill also indicated that the test for lack of integrity, applying the case of Wingate v Evans set a high bar for a lack of integrity to be established, and referred to the examples given in Wingate with respect to the solicitors’ profession.

65. In respect of Particular 3 (the Letterkenny matter), Mr Hamill submitted that the Registrant accepted that he should have disclosed this to the Trust, but that he sought and relied on legal advice which he accepted in good faith. Mr Hamill said this had been the Registrant’s consistent position throughout the evidence. He said any ambiguity should be resolved in favour of the Registrant, particularly where there had been a suggestion by an HCPC employee that non-reporting of a pending criminal charge to the HCPC, was not seen as a breach of the HCPC standards.

66. As for Particular 4, Mr Hamill submitted that the Registrant had signed the declaration without reading the policy which he first completed in 2017. To support this, he said that undertaking private work was commonplace, openly discussed and generally not an issue within the Trust. He said, even if there was a failure to disclose, the sanction within the Trust was a formal conversation and it would not be regarded as a disciplinary matter. He said the matter had only arisen as a result of the other difficulties identified in respect of the Registrant.

67. Mr Hamill said that the Registrant’s actions could not be described as dishonest. By way of example, he said the Registrant had volunteered references which disclosed that he had been working privately. He said that since 2017 the Registrant had signed several conflict forms and no conflicts had arisen. He said the Registrant had nothing to gain and his conduct merely represented carelessness on his part as an inexperienced practitioner, rather than a person acting dishonestly or due to a lack of integrity.

68. Finally, Mr Hamill submitted that the Registrant was a man of good character, he had admitted the facts, shown remorse and there was no criticism of his professional capabilities. He invited the Panel to accept his account, namely that he should have known better, but that did not equate to dishonesty or a lack of integrity.

69. The Panel accepted the advice of the Legal Assessor which was agreed by both parties’ legal representatives.

70. The Panel applied the cases of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 in relation to the test for dishonesty.

71. The Panel further considered and applied the case of Wingate and Evans V SRA and SRA V Malins [2018] EWCA Civ 366 when considering the issue of integrity.

72. The Panel considered Particulars 3 and 4 separately.

Particular 3

73. The Panel considered the written material and the oral evidence.

74. The circumstances were as follows:

i. On or about 4 March 2017, the incident in Letterkenny took place and the Registrant was charged with assault.

ii. In March 2018, the Trust became aware of the incident via a newspaper article, which suggested that the Registrant had assaulted a pensioner with a walking stick outside a chip shop.

iii. On 14 March 2018, at a return-to-work meeting, the Registrant was given an opportunity to inform the Trust of the incident but only did so when informed that the Trust knew about it. The Registrant stated that he had an altercation with a gentleman in Donegal. He said he had an upcoming court hearing on 9 April 2018 when he would pay compensation to the victim in the sum of 2500 euros.

iv. Witness 1 confirmed her written statement, namely the evidence of a conversation on 14 March 2018, between a member of the Trust and the HCPC, in which the HCPC stated that “sometimes Registrants do not report their charges or convictions until the court case is over and something is proven. He explained that despite the fact that Dean McNally had not yet reported this to the HCPC, this was not seen as a breach of the HCPC standards.”

v. On 27 March 2018, during an informal preliminary meeting the Registrant was forthcoming and cooperative and acknowledged his failure.

vi. Between April-June 2018, during the Registrant’s formal disciplinary meeting, the Registrant confirmed that he had attended Letterkenny Court in March 2018 as he had been charged with assaulting a man on 4 March 2017 and that he was ordered to pay 2,500 euros to him as compensation. He also said that his solicitor at the time advised that the court case would be over quickly, and he thought he would not be found guilty.

75. The Panel noted the Registrant’s terms and conditions of employment which stated that he was required to notify his manager immediately if he was charged or convicted of any criminal offence.

76. The Panel determined that there was no doubt that the Registrant failed to immediately and/or as soon as possible disclose the existence of criminal proceedings to the Trust. The Registrant disclosed the matter to the Trust around a year after the offence was committed.

77. However, the Panel considered and accepted the Registrant’s oral evidence. The Registrant said that he sought advice from a solicitor at the time of the offence and was advised that he did not need to disclose the Letterkenny matter as there was nothing to disclose. The Registrant accepted that he was ashamed of the matter and did not wish to disclose the matter unless he had to. He said his solicitor later acknowledged that he had given incorrect advice based on criminal rather than regulatory law. He said that he relied on the advice and assumed that the solicitor knew best.

78. The Panel considered the Registrant’s subjective state of mind and accepted that he had acted on the advice of a solicitor and held the genuine belief that he was not obliged to report the matter to the Trust until such time as there was ‘something to report’ as the matter was pending. In view of this the Panel considered that a member of the public would not consider such actions objectively dishonest where a person acted on such legal advice which the recipient assumed to be correct.

79. Similarly, the Panel did not consider that the Registrant demonstrated a lack of integrity by not disclosing the Letterkenny matter. Notwithstanding the Registrant accepting a lack of integrity in evidence, the Panel did not consider his evidence was consistent with his admission. The Panel found the Registrant acted on the advice of his solicitor, did not consider that there was an additional duty to disclose to the HCPC or the Trust, nor did it consider the Registrant should have checked the accuracy of the legal advice he was given. In view of this, it could not be said that the Registrant did not adhere to the ethical standards of his profession.

80. Accordingly, the Panel found this Particular not proved in its entirety.

Particular 4

81. As Particular 4 has been found not proved, the issue of dishonesty and lack of integrity does not arise, and Particular 5 as it relates to Particular 4 is found not proved.

82. If the Panel is wrong about its assessment of the evidence in relation to Particular 4, in any event it did not consider that the Registrant’s failure to make a written declaration either amounted to dishonesty or a lack of integrity.

83. The circumstances are that on 14 March 2018, it came to the Trust’s attention through character references submitted by the Registrant that he had been undertaking private work as a Physiotherapist and that he had failed to disclose this information to the Trust

84. The Panel’s reasons for rejecting that the Registrant’s actions amounted to dishonesty and/or integrity are:

i. The Panel relied on its earlier finding that the Registrant had informed his colleagues of his private practice before signing the written declaration.

ii. The Panel also considered that the Registrant had been consistent in this belief that he did not realise that undertaking secondary employment would amount to a conflict of interest.

iii. The Panel accepted the Registrant’s evidence that he simply did not read the policy before signing the declaration and was not aware at that time that participating in private work would amount to a conflict of interest.

iv. The Panel considered the Registrant’s subjective state of mind at the time he signed the declaration. In view of its findings above, the Panel considered that the Registrant genuinely believed that his private work, consisting of 3-6 hours per week, and at a location not within the geographical area covered by the Trust, did not give rise to a potential conflict of interest. Applying the objective standard, the Panel did not consider that an informed person would consider this to be an unreasonable belief to hold, given the view of his colleagues and the practice of holding independent work being commonplace within the Trust at the time.

v. Although the Registrant accepted, after being pressed by Mr Millin for the HCPC, that he acted dishonestly when signing the declaration, he also made clear in his evidence that he did not sign the declaration with a dishonest intent.

vi. On 14 March 2018, the Trust became aware of the matter through character references submitted by the Registrant, which the Panel found to be suggestive of a Registrant not attempting to conceal his private work from his employers.


85. The Panel took account of all these matters individually and cumulatively and concluded that they did not amount to dishonesty and/or a lack of integrity.

Reconvened Hearing (17 March 2021)

86. As set out above the Panel asked the representatives, Mr Millin and Mr Hamill to prepare an agreed summary of the facts in relation to Particulars 1 & 2 (see paras 38 & 44 above). Unfortunately, there were issues between the parties that were not resolved. The Panel therefore determined that it would resolve outstanding disputes of fact in relation to Particulars 1 & 2 following further submissions and Legal Advice.

87. In relation to Particular 1, both parties agreed that the fact of the conviction, as evidenced by the Memorandum of Conviction, is the automatic gateway to establishing the statutory ground. There remained a difference between the parties in relation to the basis of the guilty plea.

88. Mr Millin for the HCPC submitted that, notwithstanding, the Registrant’s guilty plea to the “misdemeanor of battery”, the Panel should take into account the written statements of the victim and her father, who both stated that the Registrant touched the victim’s buttock. He argued that the Registrant’s account that he touched the victim around the waist was implausible and would have been unlikely to constitute the criminal offence of battery.

89. Mr Hamill submitted that it would be wrong to attach weight to the untested testimony of the victim and that the account of her father was hearsay. He invited the Panel to make findings based on the Registrant’s oral evidence which was that he had done nothing wrong but had agreed to enter into a plea bargain so that he could leave the United States. In the alternative, Mr Hamill submitted that the plea at the Las Vegas Justice Court was to battery. He referred the Panel to the letter which was provided by the Registrant’s lawyer, Ms Luem, which stated that the Registrant pleaded to a “simple misdemeanor of battery” and that the charge of “lewdness” was dismissed. In her letter, she went on to emphasise that the charge, which the Registrant pleaded to was “…NOT in any way sexual or violent”.

90. In relation to Particular 2, both parties submitted that, despite the fact that the Letterkenny matter did not result in a conviction, the Registrant had admitted to an assault on Person X. He was ordered to pay 2500 euros in compensation, which he had done. Mr Millin for the HCPC stated that it was for the Panel to decide how to interpret the evidence. The Registrant had accepted that he assaulted a 60-year-old man when he had had a “drink on board”.

91. The disputed issue was the status of a newspaper article which commented that the Registrant had thrown Person X’s walking stick at him in the course of the altercation, causing it to break. Asked by the Panel Chair about the status of the newspaper article, Mr Millin accepted that it was hearsay but argued that it was admissible as evidence of “what was contained in the article”.

92. Mr Hamill made it clear that the Registrant did not accept that he threw the stick or part of the stick at Person X and relied on the fact that the HCPC were relying on a newspaper report which was hearsay.

93. The Panel accepted the advice of the Legal Assessor.

94. The Panel determined that the conviction from Las Vegas Justice Court was evidence of the fact of a battery. The Panel found that it would proceed to consider the question of misconduct applying the information contained in the Memorandum of Conviction and based on the letter written by the Registrant’s lawyer, Ms Luem, who represented him in those proceedings. She informed the HCPC that the Registrant pleaded guilty to the simple misdemeanour of battery. The charge relating to “lewdness” was dismissed. The Panel determined that it would be unsafe and prejudicial to rely on the untested testimony of the victim, because this evidence was not reflected in the plea that was entered, nor were the facts accepted by the Registrant. The most reliable information before the Panel came from the lawyer, Ms Luem, who stated that the plea to battery was “NOT sexual or violent in any way”, and that this was “a common plea and a minor infraction”.

95. In short, the Panel determined not to go behind the Memorandum of Conviction, which was for “simple battery”. It would consider the question of misconduct on the basis that the Registrant had touched the victim without her permission. The Registrant pleaded guilty to battery. The Panel has accepted that the touching had not been sexual or violent and the victim had not sustained any injuries.

96. In relation to the Letterkenny matter, the disputed issue centred around a newspaper article and its contents. It was accepted that this article was hearsay. There was no reliable evidence on the source of the evidence contained within the article and the Panel determined that it would be unsafe to base any reliance upon it. In summary, the Panel determined that it would not attach any weight to the newspaper articl.

Misconduct

97. The Panel had the benefit of written and oral submissions from Mr Millin, on behalf of the HCPC and from Mr Hamill for the Registrant. The Panel has taken both into account in reaching a decision on misconduct.

98. The Panel accepted the advice of the Legal Assessor.

Particular 1

99. The Memorandum of Conviction for battery dated 7 December 2017 from Las Vegas Justice Court is to be treated as proof of the conviction for the purposes of these proceedings. The Panel will therefore consider impairment in respect of this matter.

Particular 2


100. In respect of Particular 2, the Registrant admitted that he assaulted Person X on 4 March 2017, at the end of a night out, when he was with two friends and had been drinking alcohol. Person X was alone at the time. He was described as a man of about 60 years old who needed a walking stick to assist him with mobility.
101. Notwithstanding the fact that the charges against the Registrant were struck out by the Court, he was ordered to pay the sum of 2500 euros in compensation to Person X. The Registrant has always admitted getting into a verbal altercation with Person X, who he perceived to be invading his space. This resulted in the Registrant pushing Person X, and Person X falling to the ground. Person X was not injured but the fall caused his walking stick to break. The Panel has determined that the Registrant’s conduct on that night was unacceptable, bringing the profession into disrepute and that this incident was so serious as to constitute misconduct. In the Panel’s view, the public would be shocked to learn that a registered Physiotherapist would react in the manner that the Registrant did.


Particular 3


102. Although the Panel found Particular 3 to be proved, the Panel does not find that the Registrant’s conduct amounted to misconduct. The Registrant did not report the fact that he had been charged with a criminal offence in Letterkenny to the HCPC or his employer immediately and only did so after a meeting with the Trust on 14 March 2018. This was a year after the incident, but prior to the court hearing in April 2018. Although the Registrant did not report the incident, he was open about it at work with friends who were colleagues and most importantly he was advised by his solicitor that he did not need to report the incident unless or until he was convicted of an offence. The Panel determined that the Registrant failed to report the matter on the advice of his solicitor and therefore that he acted in good faith. In the circumstances, the Panel determined that this failure falls short of the threshold for a finding of misconduct.


Impairment


103. The Panel went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of his conviction in Las Vegas Justice Court and its finding of misconduct in relation to Particular 2.


104. The Panel accepted the advice of the Legal Assessor.


105. The Panel bore in mind that the purpose of fitness to practise hearings is not to punish the “practitioner for past misdoings but to protect the public against acts and omissions of those who are not fit to practice”. The Panel had careful regard to the HCPC Practice Note on ‘Finding that Fitness to Practise is Impaired’ and in particular to the range of issues to be considered. It has approached the decision by separating the personal and public components of impairment.


106. In reaching a decision on the personal component, the Panel has taken into account the Registrant’s oral evidence, his personal references and his reflective piece, the oral evidence of the witnesses called by the HCPC and Witness R1, Registrant’s character witness.


107. Both Particular 1 (the Las Vegas incident) and Particular 2 (the Letterkenny incident) occurred outside the workplace. The Registrant’s professionalism and competence has never been in issue. He has been promoted twice since these proceedings began. His employer holds him in the utmost regard. His supervision notes from the period immediately after these incidents speak of the fact that the Registrant continued to work during what was described as a “very difficult and stressful few months, willingly carrying out any task that was asked of him to a very high standard”, demonstrating “great resilience”. He is described as an “excellent team member, working extremely well with all his colleagues from all departments. It was noted that during this difficult period the Registrant carried out an “enormous piece of work on closed records” displaying excellent administrative skills and that in addition to his caseload, carried out valuable research across the Trust on all children with a diagnosis of cerebral palsy which his supervisor noted was being written up “as he would if it were to be published.”


108. In terms of his day-to-day work as a Physiotherapist, the Registrant has been described as an excellent practitioner, who goes out of his way to help others, has a great work ethic and is approachable, polite and respectful to colleagues and service users. In her statement prepared for these proceedings and in her oral evidence before the Panel, the Registrant’s supervisor, Witness 1, who was called by the HCPC, confirmed in answer to questions from Mr Hamill, that the Registrant has always complied with professional standards, demonstrated respect, compassion, care, privacy and has revealed a positive attitude in all his working relationships. In her statement she described the Registrant as an exemplary professional who works as part of a team in a selfless manner. She confirmed that this reflected the current position in relation to the Registrant’s work ethic. These attributes were reflected in the personal reference prepared by Wendy Mc Nabb who was the Registrant’s Team Lead at SHSCT until she retired on 31 December 2019. She wrote of the Registrant’s transparency and openness on the issues that led to the referral to HCPC. She described the Registrant as a committed and experienced Physiotherapist. His reference from Jenny McGirk of Body In Motion, where the Registrant has a private practice, referred to the Registrant’s “excellent level of professionalism” and the fact that he “treats colleagues and clients with the highest level of care and respect”. The tenor of the reference from Elite Physiotherapy was the same.


109. The Registrant has always cooperated with his employer and engaged with the regulator. He has been open and honest about the two incidents that fall to be considered at the impairment stage.


110. The Panel has considered carefully the incident in Las Vegas. This incident is completely different in nature to the Letterkenny incident. It occurred in broad daylight. The victim was in a bear costume and was not identifiable as a child or adult, male or female. The plea to battery was on the basis that the Registrant misinterpreted the situation and ran up to her to have a photograph taken with a person dressed as a bear. It was in the context of putting his arm on the bear, without consent, that the Panel understands that a guilty plea to battery was entered. In terms of this incident, it is noteworthy that the Registrant immediately contacted the Trust to ensure that his work diary was accessed, told his employer what had happened and took steps to ensure that his appointments were covered so that his colleagues could rearrange the appointments and that there would be minimal disruption to service users. The Panel finds that this reflects honesty, accountability and professionalism. For all of these reasons, the Panel found that the Registrant is not currently impaired on the personal component.


111. Although the Panel has found that the Letterkenny incident was so serious as to amount to misconduct, it is important to emphasise that there were gaps in the information available to the Panel. The basis for the Panel’s finding comes from the Registrant who has admitted to pushing Person X to the ground at the end of a night out with friends during a verbal argument. The criminal charge against him was struck out by the Judge and he apologised to Person X in court and has paid compensation. He has always been open and honest about his actions. He was remorseful before the Panel and was at pains to explain that the fact that Person X had invaded his personal space was no excuse for his response. He stated that with hindsight he should not have pushed Person X whatever the provocation was and “should have walked away”. He showed maturity and insight in his reflective piece and during his oral evidence. The Panel finds that the Registrant immediately took steps to avoid a repetition. He stopped drinking altogether for a period of time. He decided to avoid nights out with groups of men and described himself in his oral evidence “I am much, much much more self-aware and much more conscious of the positions that I put myself in”. This incident occurred more than four years ago, that the Registrant is now married, his wife is expecting a baby and that they have purchased land on which they hope to build a house.


112. The Registrant has fully engaged with the HCPC throughout the investigation and proceedings and has shown insight from the outset. He has taken steps to ensure that the behaviour does not reoccur. The Panel was deeply impressed by him. The Panel found the Registrant to be genuinely remorseful and embarrassed by both of these incidents. He did not attempt at any stage to derogate from the seriousness of the incidents, or to pass the blame. He has been deeply affected by the regulatory process and the Panel finds that he has matured.


113. The Registrant has taken steps to ensure that despite the stress of these proceedings he continues to strive to make amends. The Panel heard oral evidence from Witness R1, Registrant’s character witness, who is a retired teacher, and has known the Registrant for 14 years. In her written reference she spoke at length of the Registrant’s voluntary work for Kildress Wolfe Tones GAC, a Gaelic Amateur Association Football Club, of the money he has raised, his integrity and honesty in managing large funds, his ability as a sportsman and his recent contribution to ensuring safety at the club during the Covid-19 pandemic. In her oral evidence before the Panel, she described these incidents as “out of character”. She stated that she would not have expected the Registrant ever to do “anything untoward onto anyone else”. She described him as a man who “actually shows respect for himself and others”. Asked how he came across to her when they discussed the (Letterkenny) incident, she stated: “Very remorseful. He understood he had done something wrong. He is sorry for what he has done and wishes as I said before to move on in his life”.


114. In summary and having considered all of the evidence, the Panel finds that the Registrant could not have done more to demonstrate insight, remorse and remediation. It notes that the Registrant has been honest and cooperative throughout. During his oral evidence the Panel was impressed by his self-awareness. He demonstrated remorse. Most of all the Panel finds that insight, remorse and remediation is demonstrated by his actions and development over the last 4 years. He is an excellent practitioner, a valuable member of his community and has taken steps to take his life in a different direction. The Panel finds he has matured. The Panel therefore finds that the Registrant is no longer impaired in respect of the personal component and is satisfied that the risk of repetition is negligible.


115. In respect of the public component, the Registrant is a highly regarded and talented practitioner. There has never been an issue in relation to the risk to service users.


116. The sole question relates to public confidence in the profession and the regulatory process. In relation to the Las Vegas conviction for battery, the Panel does not find that the public component is met. This incident arose from an unusual set of circumstances, which taken at its highest involved an overzealous, intrusive act during which the Registrant touched a person disguised in a bear costume without seeking permission to do so. The Panel also notes in this regard the basis of the plea to battery was described by his lawyer as a “very minor infraction”. The Panel therefore finds the public component of impairment is not met in respect of Particular 1.


117. However, the Letterkenny incident falls into a different category and the Panel finds that ordinary members of the public would be concerned by the manner in which the Registrant behaved on 4 March 2017. The Panel therefore finds on this limited basis that the public would lose confidence in the regulator were the Registrant’s misconduct not marked by a finding of impairment in respect of the public component.


Sanction


118. The Panel heard submissions from Mr Millin and Mr Hamill in respect of sanction. It accepted the advice of the Legal Assessor.


119. The Panel reminded itself that the primary purpose of a sanction is to protect the public and the public interest. It carefully considered the guidance in the HCPC Sanction Policy. The Panel approached sanction, beginning with the least restrictive first, bearing in mind the need for proportionality and balancing the interests of the Registrant with the public interest.

120. The Panel considered that the aggravating features were:


• The Registrant pushed Person X which, although no actual injury occurred, had the potential to cause injury. As a registered Physiotherapist, the Registrant should have been aware of the risk of harm that his actions could have caused to Person X.


• Person X was an older man with mobility issues.


• The Registrant was with 2 friends and had been drinking alcohol whereas Person X was alone.


121. The mitigating factors were:


• The Letterkenny matter was brought to Letterkenny District Court on 9 April 2018 when the Judge seized of the matter struck it out. The starting point is therefore that the Registrant was not convicted of the offence of assault. Despite the best efforts of the HCPC, An Garda S╬»ochána was unable to confirm whether video footage of the incident actually existed. From the correspondence it appears that it was unwilling to cooperate further with the enquiries made by the HCPC in preparing this case. As a consequence, the HCPC has not been able to provide sufficiently clear evidence in relation to the incident on 4 March 2017. The only account comes from the Registrant who has been open and honest. Without that account, the Panel would have been left with the original charge, the compensation order and the fact that the matter had been struck out as the only reliable evidence.


• There was no pre-meditation to the incident. It was an isolated, one-off event when the Registrant was under the influence of alcohol.


• The Registrant cooperated and engaged with his employer and the regulator throughout. He was open and honest.


• It is now over 4 years since the incident. The Registrant was a young man when this incident occurred. He has matured and his lifestyle has changed. He is now married. He and his wife are expecting their first baby. He has addressed the role of alcohol as a disinhibitor.


• The Registrant has shown full insight into the circumstances of the Letterkenny incident and has demonstrated significant remorse and regret. He no longer goes on nights out with groups of male friends consuming alcohol and the Panel found that the chance of repetition of this sort of behaviour was ‘negligible’.


• The delay in bringing these proceedings to a conclusion has meant that the Registrant has experienced a lengthy period of uncertainty, which has caused him stress. Throughout this period, and despite the stress, he has demonstrated a notable commitment to his chosen profession in that, for example, he has been promoted twice despite these proceedings. This is a reflection of the high regard in which he is held by his employer. Having read the Registrant’s supervision records as well as his references and having heard oral evidence from his supervisor, it is clear that the Registrant has a strong work ethic. He has evidently matured into a well-respected, talented and able practitioner, as well as an excellent administrator with research skills and a team player. This strong skills’ set is noteworthy.


• The Registrant has a real sense of community and public service. This is evidenced through his personal testimonials and demonstrated most recently by his work during the COVID-19 crisis. He has not only volunteered within his local community but has also qualified and worked as a vaccinator outside working hours.


122. In approaching the question of sanction, the Panel first considered taking no action. This is an exceptional course and one that should rarely be taken. In considering this course the Panel had regard to the public interest and to the mitigating factors outlined above. It was not only the mitigation that impressed the Panel, but the quality and depth of the Registrant’s insight, reflection and remorse. It has found that he could “not have done more to demonstrate that he had remediated his actions”. The Registrant’s commitment to his profession during a difficult and stressful period in his life was impressive, especially taking into account that at the time of the incident he had been qualified for less than two years.


123. After careful deliberation, the Panel determined that the Registrant has fully addressed his failings. This incident occurred more than four years ago. The consequences have been and remain a salutary lesson. The Registrant, despite the inevitable stress and uncertainty arising from these proceedings, has developed personally and professionally. Having found that the Registrant’s conduct is highly unlikely to be repeated, the Panel has made a finding of impairment on public interest grounds alone. The Panel is mindful that the purpose of a sanction is not to punish a person, nor is it appropriate to punish the Registrant twice for the same thing. The Registrant has been through the Court process in respect of this incident and has paid compensation to Person X for his part in it. The Panel finds that there is a public interest in retaining and acknowledging those professionals who demonstrate the level of skill and professionalism that the Registrant has demonstrated in his career thus far.


124. In short, the Panel determined that this was one of the rare cases where it was appropriate to take no further action. It has found that there is no risk to the public. The Panel’s finding of misconduct and current impairment is a significant marker. It is sufficient to mark the gravity of this incident and will serve to protect the reputation of the profession and public confidence in the profession and the regulator.


125. The Panel has concluded that, due to the exceptional circumstances outlined above, a member of the public, fully informed of these circumstances, would not have their confidence in the Physiotherapy profession or the regulatory process undermined if no sanction is imposed.

Order

126. The Panel decided to take no further action.

Notes

A Reconvened Hearing was held via video-link. The Panel decided to take no further action.

Hearing History

History of Hearings for Mr Dean Mcnally

Date Panel Hearing type Outcomes / Status
17/03/2021 Conduct and Competence Committee Final Hearing Impaired - no further action
18/11/2020 Conduct and Competence Committee Final Hearing Adjourned part heard