Mr Miguel Martin Garcia

Profession: Physiotherapist

Registration Number: PH74080

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 12/04/2022 End: 17:00 12/04/2022

Location: This hearing is being held remotely.

Panel: Conduct and Competence Committee
Outcome: Struck off

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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
Service
1. The Panel has seen the Notice of today’s hearing dated 09 March 2022, which the HCPC sent by email to the Registrant at his registered email address. The Notice of Hearing made clear that this hearing would take place today as a virtual hearing. The Notice informed the Registrant of the time and date of this hearing. The Notice also invited the Registrant to make submissions and to provide any new information as to what may have happened since the last hearing.


2. The Panel has seen an email confirmation of delivery to the Registrant’s email address.


3. The Panel has also seen three other relevant documents namely;
⦁ An email from the Hearings Officer dated 09 March 2022, introducing himself and asking the Registrant to confirm whether he was to attend this hearing.
⦁ An email from the Presenting Officer dated 05 April 2022 which reminded the Registrant of today’s review hearing. That email explained the nature of the review hearing and reminded the Registrant of the remarks made by the Panel in April 2021.
⦁ An email from the Registrant dated 06 April 2022 which was in the following terms;
Dear Mr Sebastian,
With all due respect I have to inform you that I will not be taking place in this farce. My fitness to practice has never been impaired at all. I was sacked from my job for political and preposperous [sic] reasons. I was never given the chance to defend myself, having always gone the extra mile for my patients and for the institution. Anything else is just jealousy and hatred from some managers who do not deserve the responsabilities [sic] they have.
Miguel Martín García.


4. Having seen the relevant documents and having heard and accepted the advice of the Legal Assessor, the Panel is satisfied that good service of the Notice of Hearing has taken place.


5. The Panel considered whether to proceed in the Registrant’s virtual absence and in the absence of any substantive representation from him. It is aware that the discretion to proceed in absence is one which should be exercised with the utmost care and caution. The Panel took account of the HCPTS Practice Note entitled “Proceeding in the Absence of the Registrant”. It heard the submissions by Ms Welsh on behalf of the HCPC. It heard and accepted the advice of the Legal Assessor.


6. The Panel determined to proceed in the absence of the Registrant. Its reasons are as follows;
⦁ It is satisfied that there has been good service of the Notice of this Hearing.
⦁ The Panel noted the response of the Registrant contained in his email dated 06 April 2022, which made it clear that he did not intend to attend this hearing.
⦁ The Registrant has not applied for an adjournment. The Registrant did not attend and was not represented at the substantive hearing in April 2021.
⦁ The Registrant did not engage with the HCPC prior to the hearing in April 2021. That hearing proceeded in his absence.
⦁ This is a mandatory review, and it is in the interests of the Registrant and in the public interest that it should proceed.
⦁ In all the circumstances, it is proper to conclude that the Registrant has voluntarily decided not to engage with these proceedings.

Background as set out in the determination of the panel [the substantive panel] that determined this matter in April 2021.

7. 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.


8. 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.


9. 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.


10. A referral was made to the HCPC on 28 June 2019.

The substantive hearing from 12 - 16 April 2021.
11. The Registrant did not attend the substantive hearing from 12 - 16 April 2021.


12. As stated above, the substantive panel determined that the facts proved, namely 1(a), 1(b), 1(c), 1(d), 1(e) (in part), 2(a), 2(b), 2(c), 3 and 4 (in part) amounted to misconduct.


13. The substantive panel determined that the Registrant was in breach of a number of the provisions of the HCPC Standards of Conduct, Performance and Ethics [January 2016]. The substantive panel identified the following parts 1.4, 5.1, 9.1, 9.3, 9.4.


14. The substantive panel also found that the Registrant was in breach of a number of the provisions of the HCPC Standards of Proficiency for Physiotherapists [May 2013] namely the following parts 2.6 and 7.2

Determination of the substantive panel as to misconduct.
15. The substantive panel found that the Registrant’s conduct that it had found proved amounted to misconduct. It stated its reasons in the following terms;
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.

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.
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.

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.
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.
The Panel therefore, found the statutory ground of misconduct to have been made out.

 

Determination of the substantive panel as to impairment
16. The substantive panel determined that the Registrant’s fitness to practise was impaired by reference to both the personal and the public component. In considering the question of impairment, the substantive panel applied the guidance given by Cox J in CHRE v Grant [2011] EWHC 927 (Admin). The reasons expressed by the substantive panel included the following;
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.

The Panel was therefore satisfied that a finding of current impairment was required in relation to the personal component.

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.

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.

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.

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.

In conclusion, the Panel decided that the Registrant’s fitness to practise is currently impaired on both the personal and public components.

 

The determination of the substantive panel as to sanction.
17. The substantive panel concluded that the appropriate sanction was a suspension order for a period of 12 months. It stated its reasons as follows;
The Panel first considered taking no further action but decided that the misconduct found proved was too serious for this to be appropriate.
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.

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.

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.

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.

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.

 

The review hearing conducted on 12 April 2022. Submissions made to the Panel on behalf of the HCPC.

18. In summary, Ms Welsh on behalf of the HCPC submitted as follows;
The Registrant’s fitness to practise remains impaired on both the personal and the public components. The reasons are essential those identified by the substantive panel.

The Registrant has shown no evidence of remorse, insight or remediation. The email of 06 April 2022 shows a disregard for the regulatory process. In the email dated 06 April 2022, the Registrant asserts that his fitness to practise has never been impaired. The risk of repetition remains. A well-informed member of the public would expect a finding that the Registrant’s fitness to practise is still impaired. As regards sanction, having regard to all the factors identified above, serious consideration should be given to making a striking off order.

 

Registrant’s submissions
19. No submissions have been provided either by, or on behalf of the Registrant. However, the Panel has noted the content of the Registrant’s email dated 06 April 2022.

 

Legal advice
20. The Legal Assessor reminded the Panel that its function was to conduct a comprehensive review in order to determine whether the Registrant is fit to return to unrestricted practice. He advised that in carrying out this assessment, and if relevant, in determining the appropriate sanction to impose, the Panel must apply the principle of proportionality. He reminded the Panel that in this case all the sanctions were available to the Panel and should be considered in ascending order of restriction. He advised that the Panel should consider the document entitled “Sanctions Policy” [SP] published by the HCPC in March 2019.


The Panel’s decision as regards present impairment
21. The Panel accepted the advice of the Legal Assessor. The Panel has had regard to the HCPTS’s Practice Note on Fitness to Practise Impairment and to the SP. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. The Panel took into consideration all the documentation before it and the submissions of Ms Welsh.


22. The Panel has concluded that the Registrant’s fitness to practise remains impaired, on both the personal and the public component. Its reasons are essentially the same as those identified by the substantive panel in April 2021. The reasons include the following; there has been no material change in the underlying facts since the hearing in April 2021. The Registrant has not engaged with the HCPC in any substantive way. He has not participated in this hearing. He has provided no references or testimonials. He has not informed the HCPC as to what he is now doing. There is no evidence of remediation, remorse or insight. In all of these respects, the Registrant disregarded the advice given by the substantive panel as to what might assist a reviewing panel.


23. The Panel notes in particular the Registrant’s email dated 06 April 2022. In that email the Registrant denies that his fitness to practise had ever been impaired. The Panel considers that this assertion by the Registrant, reinforces Ms Welsh’s submission that the Registrant lacks both insight and remorse; further, that he has done nothing to address the underlying failings that were established in the substantive hearing and the underlying risk of repetition has not diminished. The Panel considers that the risk of repetition remains.


24. The Panel also concluded that a well-informed member of the public would not understand, if given all the matters set out above, the Panel was to conclude that the Registrant’s fitness to practise is no longer impaired.


25. The Panel has therefore concluded that the Registrant’s fitness to practise remains impaired on both the personal and the public components.

The Panel’s decision as regards sanction.
26. Having concluded that the Registrant’s fitness to practise remains impaired the Panel considered what sanction would be appropriate and proportionate in order to address the risks that it has identified. In doing so it considered the guidance given in the SP. It has concluded that the necessary and proportionate order is a striking off order. Its reasons are as follows;
⦁ To take no action or to impose a Caution Order would not impose any restriction on the Registrant’s ability to practise. Such an outcome would not protect the public or address the public interest and would be wholly inappropriate.
⦁ A Conditions of Practice Order would not be appropriate. Because the Registrant has not engaged substantively with the HCPC with regard to this or the substantive hearing, the Panel cannot be confident that the Registrant would comply with conditions. His email of 06 April 2022 demonstrates a disregard for the regulatory process. Further, the Registrant has not provided the HCPC with any information as to his present employment or future plans. Having regard to these considerations the Panel has concluded that appropriate conditions cannot be formulated.
⦁ The Panel has concluded that a Suspension Order is no longer appropriate. The Registrant has not at any time engaged with the HCPC. He has not demonstrated any remediation, remorse or insight. He did not respond to the email dated 05 April 2022 from Ms Welsh, which set out the material that the Panel would have found helpful. His email of 06 April 2022 displayed a worrying disregard for the importance of regulatory proceedings. The Registrant has also displayed a total disregard for the conclusions of the substantive panel as regards impairment to his fitness to practise. In the opinion of the Panel a further suspension order would serve no purpose. In all the circumstances, only a Striking Off Order would address the public interest and protect the public.

Order

ORDER: That the Registrar is directed to strike the name of Mr Miguel Martin Garcia from the Register effective from 14 May 2022, being the date when the existing suspension order expires.

Notes

Effective from 14 May 2022, being the date when the existing suspension order expires.

Hearing History

History of Hearings for Mr Miguel Martin Garcia

Date Panel Hearing type Outcomes / Status
12/04/2022 Conduct and Competence Committee Review Hearing Struck off
12/04/2021 Conduct and Competence Committee Final Hearing Suspended