Zoe Birch

Profession: Physiotherapist

Registration Number: PH90128

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 14/11/2022 End: 17:00 17/11/2022

Location: The Health and Care Professions Council Park House, 184 - 186 Kennington Park Road, London SE11 4BU

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

As a registered Physiotherapist (PH90128) your fitness to practise is impaired by reason of a caution and/or misconduct, in that:

1.On 12 February 2020, at Bishopsgate Police Station, you received a simple caution for “Fraud by False Representation.

2.You falsified medical records and invoices of Patient A for sessions dated between 10 November 2015 - 30 April 2016, which you did not provide.

3.Your conduct in relation to particular 2 was dishonest.

4.The matters set out in allegation 2 and 3 above constitute misconduct.

5.By reason of your caution and/or misconduct your fitness to practise is impaired.

Finding

Preliminary Matters
 
Application for parts of the hearing to be in private
 
1. At the outset of the hearing, it was apparent that issues of health relating to the Registrant may be raised and also there was to be an application to adduce the hearsay evidence of a witness, RH, and that application would make reference to his health. Accordingly, the Panel sought the Legal Assessor’s advice about the appropriate way to approach these matters. 
 
2. The Panel accepted the Legal Assessor’s advice that, although the general rule is that hearings are to be in public, it is open to a Panel to go into private session when dealing with matters relating to the health of a registrant or witness. Neither party raised any objection to this occurring. The Panel decided that when, and if, such matters were raised they would be heard in private in order to protect the private life of both RH and the Registrant.
 
Application to amend
 
3. Ms O’Connor made an application to amend the allegation. She indicated that the Registrant had been informed in advance that this application was to be made and had not raised any objections. Ms O’Connor submitted that the changes to Particular 1 were to remove unnecessary information. She said the proposed changes to Particular 2 were to add the date range since the allegation focussed on the dates and this needed to be reflected in the wording. Ms O’Connor said that the other proposed changes were simply “neatening things up”. She submitted that all of the changes could be made without causing injustice to the Registrant.
 
4. Ms Duong, on behalf of the Registrant, confirmed that there was no  opposition to the application.
 
5. The Panel heard and accepted the advice from the Legal Assessor that it could amend the allegation provided it was satisfied that it was fair to do so and that the proposed amendments could be made without injustice. The Panel noted that the Registrant had been informed of the proposed changes and Ms Duong said she did not object to them. The Panel was satisfied that the amendments requested more accurately reflected the evidence, did not make the overall allegation more onerous and could be made without causing any injustice. The Panel therefore decided to allow the amendments requested and as reflected above.
Admissions
 
6. Following the amendments, the allegations were put and Ms Duong, on behalf of the Registrant, indicated that all the facts were admitted. The Panel acknowledged those admissions, however it remained for the Panel to determine the facts, notwithstanding the admissions.
 
Application to admit hearsay evidence
 
7. Ms O’Connor made an application to adduce the statement and exhibits of RH, the AXA investigator. She said that the HCPC had planned on calling RH to give evidence, however it was no longer possible to do so.
 
8. Ms O’Connor directed the Panel to an email dated 1 November 2022, from RH.
 
9. Ms O’Connor submitted that the key factors were relevance and fairness. She said that RH’s evidence was clearly relevant as he was the fraud investigator at AXA, he gave a chronology of events and exhibited important documents, namely the AXA invoices and the medical records sent to AXA by the Registrant. Ms O’Connor indicated that she was aware the Defence took particular issue with paragraph 23 of RH’s statement, which dealt with the possible financial impact of the Registrant’s actions on Patient A’s insurance premiums. She submitted that this was a matter of common sense and was relevant as part of the wider picture when looking at the risks of this type of conduct. She added, however, that it would be open to the Panel to admit some of the statement and exclude any part they considered to be unfair.
 
10. Ms Duong indicated that the Registrant did not actively oppose the application, not least because she had admitted the factual allegations in this case. However, she raised the question of whether sufficient independent medical evidence had been produced to support such an application and queried whether the HCPC had looked into alternative methods of calling RH’s evidence.
 
11. Ms Duong said that the only part of RH’s evidence that she would have particularly liked to have explored with him in cross-examination was his paragraph 23 regarding what he said about the possible impact of the Registrant’s conduct on Patient A’s premiums with AXA. She submitted that it would be unfair to admit this paragraph if the Defence were to be prevented from challenging it.
 
12. The Panel considered the application with care and accepted the advice of the Legal Assessor. The Panel noted the paucity of recent independent medical evidence, however it did have cogent evidence before it that RH had suffered a major depressive episode in 2021 that had resulted in his being hospitalised for nearly a month. The Panel saw no reason to doubt RH’s current account that participating in these proceedings could jeopardise his mental well-being. The Panel was thus satisfied that there was a good reason for his non-attendance at this hearing.
 
13. The Panel was also satisfied that RH’s evidence was relevant since he was the person who investigated the alleged fraud on behalf of AXA and he collected the various exhibits and produced the timeline of events. The Panel noted that the Registrant had admitted the factual matters alleged and did not dispute the majority of what was said in RH’s statement. In deciding whether to allow his statement to be adduced as hearsay, the Panel also took into account the fact that it would have the benefit of legal advice on how it should approach hearsay evidence. In all these circumstances the Panel was satisfied that it was fair to admit the statement and exhibits of RH as hearsay evidence.
 
14. However, the Panel considered it would be inherently unfair on the Registrant to allow paragraph 23 of RH’s statement to be adduced as hearsay when this was an area that the Defence would wish to have explored in more detail, had he attended to give evidence. The Panel thus decided that RH’s statement could be adduced as hearsay but with paragraph 23 redacted.
 
Other redactions
 
15. Ms O’Connor informed the Panel that after the HCPC’s bundle had been provided to the Panel the Defence had indicated that they wished there to be some redactions made. She said that those redactions had now been agreed and that a new redacted bundle would be served. In the meantime she provided a list of the matters to be redacted and asked the Panel to put those matters out of its mind. Ms Duong did not oppose this approach and there was no suggestion by either party that this Panel could not continue to hear the case.
 
Background
 
16. The Registrant is an HCPC registered physiotherapist who, at the relevant time, was a solo practitioner letting a clinic room at the Premier Physiotherapy Centre in London from Person 1. Person 1 was an experienced physiotherapist who had been working for many years and who had a contract with AXA PPP Healthcare (AXA). This allowed the Registrant, at the relevant time, to accept AXA referrals under the auspices of Person 1’s contract.
 
17. In July 2017, an investigation was opened by the provider fraud team at AXA. This was as a result of concerns raised by a member about the invoices that had been sent to AXA. This member was a patient at one of AXA’s contracted clinics, namely the Premier Physiotherapy Centre.  This member was not a patient of the Registrant’s but, as the Registrant worked at the clinic at the time, an investigation began to look into some of her work too.
 
18. RH, a senior provider investigator at AXA, reviewed the invoices received by AXA from the Registrant. As a result of that review, one of her patients, Patient A, was contacted and asked to confirm the dates she had attended physiotherapy appointments with the Registrant.  
 
19. It transpired that there was a discrepancy between the number of appointments AXA was invoiced for and the number of appointments that had actually taken place. Some of the appointments which had been invoiced took place at a time that Patient A was abroad. It appeared that AXA had been invoiced for multiple physiotherapy sessions that never took place.    
 
20. In September 2017, AXA requested the medical records of Patient A from the Registrant. They received them the following month. Entries had been made in Patient A’s medical records for every appointment that AXA had been invoiced for. As many of these appointments had not happened, it appeared that the Registrant had added them to the medical records.    
 
21. The matter was referred to City of London Police, who visited the Registrant at her home in November 2019. The Registrant provided the police with the medical notes for Patient A, referring to them as abbreviated notes (whereas in fact they were the true notes and not abbreviated). 
 
22. The Registrant was interviewed by the police on 22 January 2020, under caution, in the presence of her solicitor. She made admissions to the conduct. She said that AXA would only pay £40 a session regardless of how long that session lasted. That was not an issue when the sessions were 20 minutes long. However, Patient A, who suffered from five different conditions, had said she could not attend multiple sessions and instead wanted fewer, longer sessions. This meant that the Registrant would be treating her for an hour but only being paid £40, whereas if Patient A had three 20 minutes sessions she would be paid £120 (her usual hourly rate). 
 
23. The Registrant said she spoke to the owner of the Premier Physiotherapy Centre, Person 1, and asked his advice on what to do. The Registrant said Person 1 said she could treat Patient A for an hour but then bill AXA for three separate 20 minute appointments on three separate days. The Registrant said she knew this was wrong, but she was keen not to compromise Patent A’s care, whilst also being paid appropriately. She considered she was giving Patient A a reasonable amount of treatment for the actual amount being paid. The Registrant said that Patient A was aware of this arrangement. When the police attended the Registrant’s home, in November 2019, she said she panicked and gave them the medical notes that had been made on the actual dates that treatment had been provided, but lied about their content, saying they were abbreviated notes. This was because when AXA contacted her two years earlier and asked for the medical notes she had added dates to them to make it look like treatment had taken place on all the dates billed for. She did this, she said, because she was afraid she and Patient A would get into trouble for their ‘arrangement’.
 
24. The Registrant subsequently reimbursed AXA in the sum of £2280, the figure quoted by the police as having been defrauded from AXA. This was received by AXA on 27 January 2020.        
 
25. On 12 February 2020, the Registrant accepted a police caution in respect of an offence of Fraud by False Representation.  
 
26. On 20 February 2020, the matter was referred to the HCPC.  
 
27. On 11 March 2021, a Panel of the Investigating Committee determined that there was a case to answer. 
 
28. In a reflective statement provided to the Panel, the Registrant said that she admitted the allegations (in their amended form) and that her conduct was dishonest. She said how Patient A was referred to her with various issues following a fall three years earlier. She repeated what she had said in the police interview about the rate of pay from AXA and how that would ordinarily reflect 20 minute sessions, however Patient A had said that would have been too disruptive because she was very busy. She sought advice from the clinic owner and he said he would bill three sessions on different days but see the patient for an hour on one day. She went on to say:
 
“I was in a dilemma of wanting desperately to help the patient but knowing deep down that this was not best practice. I realised that there were all sorts of risks and issues. However, after much soul-searching in which I put the needs of the patient first, I decided to give this patient the best treatment I could give and that she desperately needed help for her musculoskeletal problems. 
My administrative assistant made this suggestion to Patient A before confirming her initial appointment, and I also spoke to her about the billing arrangement at the initial appointment, and she agreed that this would work better for her.” 
 
29. The Registrant said this had been a “source of regret and remorse ever since.” She recognised how she had fallen short of the HCPC’s standards by “suggesting and performing an illegal action.”
 
30. The Registrant said that in 2017 she was asked to supply AXA with copies of her medical notes and she, “supplied copies of all their notes, but with regards to Patient A, I was extremely concerned that she and I would get into trouble as my official notes only stated the days that we actually saw each other. I therefore rewrote her treatment notes to reflect what was billed.”
 
31. The Registrant said she realised that her actions were “absolutely not the right thing to do” and she should have just submitted the clinic notes for the days that she actually provided treatment. She said she self-referred to the HCPC and added:
 
“… my initial reflection on receiving the caution and informing HCPC was that I had let myself, my patients and my profession down as I had always prided myself on being truthful, trustworthy and acting with integrity, and I felt I had tarnished my reputation by making a bad judgement call.  I am truly sorry for the way that I have conducted myself and represented my profession in a bad light. … I have spent many hours soul-searching including with well-regarded professionals and I have realised not just the error of my ways, but the way to correct this moving forward.”
 
32. The Registrant went on to detail the action she has taken and changes she has subsequently made to ensure nothing like this would ever happen again. In conclusion, she wrote:
 
“I acknowledge that I have let down myself, my profession and the public by my actions and behaviour, but I have been working over the last 5 years to ensure this behaviour is not replicated so that I can regain the trust of the public.”
 
33. The Registrant gave oral evidence to the Panel and confirmed the content of her reflective statement. She made it clear that she took full responsibility and ownership of her actions, she admitted all the facts and that her conduct had been dishonest. 
 
34. She said that at the time she had been a physiotherapist for about six years but had only been a sole practitioner for about six months. She was sub-letting a clinic room from Person 1, who had advised her about the way to bill for Patient A’s treatment. She said she knew it was a dishonest thing to do and that falsifying notes could have consequences for a person’s treatment. She considered the victims of her fraud to be Patient A and AXA and she felt she had let Patient A down by placing her in such a position. She said she had also let down her profession by “presenting them to the public in a way in which she knew to be wrong.” She apologised to her professional colleagues for letting them down and also to Patient A for both letting her down and causing her to have to attend this hearing. She hoped that Patient A’s view of physiotherapists would not be affected in the future as a result. 
 
35. The Registrant went into more detail and spoke of Patient A’s presenting symptoms and how she had complex needs. She said her administrator explained to Patient A that because AXA only pay a flat rate of £40 she would only be able to see her for 20 minutes a session. Patient A was not happy with that so the administrator contacted the Registrant to ask her what she should do. The Registrant said that because she had not been in that situation before she sought advice from Person 1, who had been in practice far longer. She said that Person 1 told her that with a patient of her complexity he would see her for an hour so she could have the treatment she needed, but then put it through as if he had seen her on three different dates. The Registrant said she knew it did not seem right to do it this way, but she felt desperate and did not want to let Patient A down, or the colleague who had referred Patient A to her. The Registrant said she told her administrator what Person 1 had recommended and she went back to Patient A to see if she was happy for them to work in that way. The Registrant referred to a text message, dated 10 November 2015, from her administrator (and produced in evidence) appearing to confirm that Patient A was happy with this arrangement.
 
36. The Registrant said the sessions were always booked for an hour and she would then bill (through her administrator) as if they had occurred on three separate dates. She said that when AXA contacted her and asked for the medical records for Patient A she panicked as she feared she and Patient A would get into trouble. That was why she took the decision to falsify the records. Then, two years later when the police turned up at her house, she was shocked. She admitted she lied to the police when providing them with the actual medical notes by referring to them as ‘abbreviated’ notes. The Registrant said that when she attended for her police interview she had decided she had to be completely honest and tell them everything that had actually happened.
 
37. The Registrant said she continuously reflected upon her behaviour and had spoken about it with friends, family and even patients, who had to be alerted to the possibility that she might not be able to practice for a while, depending on the outcome of this case. She said she would never behave in such a way again and she was truly sorry.
 
38. When being cross-examined she took full responsibility for her dishonest conduct and did not seek to blame anyone else for her behaviour. She accepted she was responsible for exercising her own professional judgement. She also accepted that she could have taken different actions, such as getting Patient A to pay and then Patient A could have claimed back the treatment costs from AXA, or she could have referred Patient A on to someone else who was prepared to accept £40 an hour. She said that it cost her £40 an hour to hire the clinic so if she was only being paid £40 an hour for providing treatment she would only break even.
 
Decision on Facts
 
39. In reaching its decisions on the facts the Panel took into account the oral evidence provided by the witness called by the HCPC and all the documentary evidence. The Panel also took into account the submissions made by Ms O’Connor on behalf of the HCPC. In addition, the Panel took into account the Registrant’s oral evidence and the submissions made by Ms Duong on her behalf. The Panel accepted the advice of the Legal Assessor and bore in mind that, notwithstanding the Registrant’s admissions to all the facts, it was for the HCPC to prove its case on the balance of probabilities. It was not for the Registrant to disprove the allegations.
 
40. The Panel took account of the fact that RH’s statement had been admitted as hearsay. However, it was prepared to give it significant weight because it was supported by the documentation provided in the form of invoices and medical notes and importantly the Registrant did not challenge any of its contents, following the removal of paragraph 23.
 
Particular 1 - On 12 February 2020, at Bishopsgate Police Station, you received a simple caution for Fraud by False Representation. - proved
 
41. The Panel was provided with a copy of the police caution signed by the Registrant on 12 February 2020. The Panel was satisfied that this official record, signed by the officer who administered it and by the Registrant herself, was cogent evidence of the caution itself. It noted that a police caution can only be administered where:
 
• the evidence is sufficient to provide a realistic prospect of conviction;
 
• the offender unequivocally admits having committed the offence; and
 
• the offender agrees to accept the caution and understands the significance of doing so.
 
42. The Panel noted the Registrant’s admission to this allegation both by signing the declaration on the caution sheet and orally to this Panel.
 
43. In light of the caution document and the Registrant’s admission, the Panel found this Particular proved.
 
44. The only real issue of fact between the Registrant and Patient A was whether or not Patient A was aware of the arrangement whereby each session would be billed as three sessions. Patient A, in her statement said that she was not aware. In her oral evidence she was less sure, but said she could not recall being told of that arrangement. The Panel noted the Registrant’s case was that the arrangement had been discussed with Patient A by her administrator and she relied on a text message dated 10 November 2015, which supported that assertion. In the text the administrator said to the Registrant, “[Patient A] said happy for us to put through 3 sessions to axa.” 10 November 2015 was the date Patient A had her first treatment with the Registrant. The Panel considered this text message supported the Registrant’s assertion that Patient A was, to some extent, aware of the arrangement. The Panel also noted that the Registrant candidly admitted that Patient A being aware of the arrangement did not in fact make any difference to her culpability. 
 
45. The Panel did not consider much turned on this factual dispute, but given the supporting text concluded that it was more likely than not that Patient A had been made aware of an arrangement around the billing. It was not entirely surprising that she should not remember this, some seven years after the event.
 
Particular 2 - You falsified medical records and invoices of Patient A for sessions dated between 10 November 2015 - 30 April 2016, which you did not provide. - proved
 
46. The Registrant admitted that she falsified the medical records in order to reflect the bogus invoices submitted on her behalf. This was done after the event when she feared discovery following the contact from AXA asking for the medical records. She admitted responsibility for the false invoices although she had not submitted them herself, but rather her mother, who was doing her bookkeeping/administration at the time, had submitted them. She said that she would write the dates on her calendar and then at the end of each month her mother would go through the calendar and submit invoices accordingly. The Registrant said she had falsified the medical records as she was afraid that she and Patient A would “get into trouble” for their ‘arrangement’. 
 
47. The Registrant admitted that she had re-written the medical notes, using the same information but splitting the one hour session up into three separately dated sessions to mirror the invoices she knew had been submitted on her behalf.
 
48. The Panel had copies of the falsified medical records and invoices and, together with the Registrant’s admissions that she was responsible for them, found this Particular proved.
 
Particular 3.Your conduct in relation to particular 2 was dishonest. - proved
 
49. The Registrant had admitted that she was responsible for false invoices being submitted for 61 appointments that did not take place. This formed the basis of the caution for fraud by false representation, albeit the caution was limited to one date. Such an offence involves dishonesty and the Registrant admitted acting dishonestly.
 
50. Section 2(1) and(2) of the Fraud Act 2006 states:
“2 Fraud by false representation
 
(1) A person is in breach of this section if he—
(a) dishonestly makes a false representation, and
(b) intends, by making the representation—
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
(2) A representation is false if—
(a) it is untrue or misleading, and
(b) the person making it knows that it is, or might be, untrue or misleading.
 
51. The Registrant also admitted falsifying the medical records as she was fearful she and Patient A would “get into trouble”. The Registrant, by her own admission, tried to cover up her false invoicing by manipulating the medical records to make it look as though she had provided Patient A with treatment on all 61 days where false invoices had been submitted. Notwithstanding the premise upon which the Registrant did this, i.e, she believed she had provided a reasonable amount of treatment for the amount being paid and this was the only feasible way to have billed AXA on the advice from the clinic owner, the Panel was in no doubt that such behaviour was dishonest. In its simplest terms, the Registrant had attempted to deceive AXA into believing she had actually provided treatment on all 61 days when no appointment had actually taken place. The Panel considered that to be dishonest, the Registrant admits that it was dishonest and the Panel was satisfied that applying the objective standards of ordinary decent people (in accordance with the test in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67), they too would find it to be dishonest. The Panel therefore found Particular 3 proved.
 
Decision on Grounds
 
52. The Panel next considered whether the facts found proved amounted to the statutory grounds of caution and/or misconduct. In so doing it took into account all the evidence and the submissions made by both parties. The Panel accepted the advice of the Legal Assessor. 
 
53. With regard to the statutory ground of caution, the Panel noted that this ground is automatically made out by virtue of its findings of fact in relation to Particular 1.
 
54. The Registrant admitted fraud by false representation. The actual wording of the offence she admitted is as follows:
 
“Fraud by false representation; On the 30 of April 2015 in London you committed fraud in that you dishonestly made a false representation namely, informing AXA PPP Healthcare that a total of 67 physiotherapy sessions had taken place in relation to the treatment given by yourself to Patient A.  This was despite full knowledge that only 10 such sessions had taken place.  This was with the intent to secure a gain of £2280 for yourself.  Contrary to sections 1 and 2 of the Fraud Act 2006”.
 
55. Section 2(1) and(2) of the Fraud Act 2006 (as detailed above), includes an element of dishonesty.
 
56. Thus, by accepting the police caution, the Registrant had admitted acting dishonestly by causing the invoices to be submitted. The Panel noted that the wording of the simple caution administered by the police did not reflect the full course of conduct. The caution states the commission of the offence took place on a single date. In fact, between November 2015 and April 2016, six invoices were submitted by the Registrant, at the end of each month. Each invoice billed for multiple physiotherapy sessions which did not take place. In total AXA were invoiced for 61 appointments that did not take place. The fee for a single appointment is £40. This therefore equates to £2440 in fees for physiotherapy appointments that did not take place. The Registrant fully admitted and accepted responsibility for causing all the invoices to be submitted.
 
57. The Panel then went on to consider whether the Registrant’s behaviour as found proved in relation to Particulars 2 and 3 amounted to misconduct.
 
58. The Panel found the Registrant to be in breach of Standard 9 of the Standards of Conduct, Performance and Ethics applicable to all HCPC Registrants, namely to be honest and trustworthy. This standard specifically requires Registrants to: “Make sure their conduct justifies the public’s trust and confidence in them and their profession (9.1).”
 
59. The Panel also found the Registrant to be in breach of the following Standards of the Standards of Proficiency applicable to Physiotherapists, namely:
 
2 - be able to practise within the legal and ethical boundaries of their profession
 
4 - be able to practise as an autonomous professional, exercising their own professional judgement
 
10 - be able to maintain records appropriately
 
10.1 - be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines
        
60. Whilst recognising that there is a spectrum of dishonesty and that, in the particular circumstances of this case, this behaviour did not necessarily fall at the higher end of any such scale, nevertheless the Registrant had caused to be submitted (by her administrator) multiple invoices for treatment provided on dates when no appointments actually took place. When contacted by AXA and asked to provide the medical records for those appointments the Registrant took the actual medical records and re-wrote them dividing them up into different dates to mirror the dates of the invoices submitted to AXA in an attempt to cover up her wrongdoing. The Registrant accepted that this action was also dishonest.
 
61. The Panel did note the specific circumstances that, according to the Registrant, led to her dishonest behaviour. Her newness in the solo role of physiotherapist; her desire to be able to treat the patient referred to her by the Consultant, her concern to treat the patient to the best of her ability; the constraints placed upon her by the AXA payment structure which meant that she would have been paid £40 for the hour-long treatment whilst having to pay £40 an hour to let the clinic room; the advice she received from Person 1, the clinic owner an experienced practitioner; and Patient A appeared to have been made aware of the arrangement to invoice for three dates to cover the true cost of each one-hour treatment session. However, this context did not, in the Panel’s view, mean the conduct was not serious. The Registrant could and should have taken a different course of action. She could have explored with Patient A different ways of providing the treatment or organising payment. She could have referred Patient A to another physiotherapist. What she should not have done was decide to manipulate the system in order to get paid what she considered she ought to be paid for the treatment provided and thereafter attempt to hide her actions by falsifying the records.
 
62. The Panel considered such serious behaviour fell far short of the standard expected of an HCPC registered professional and would be considered deplorable by other members of the profession and the public alike. In such circumstances the Panel was satisfied that the facts found proved in Particulars 2 and 3 amounted to misconduct and that the statutory ground of misconduct was therefore made out.
 
Decision on Impairment
 
63. Having found the statutory grounds of caution and misconduct to be well founded, the Panel went on to consider whether the Registrant’s current fitness to practise was impaired as a result of that misconduct. In doing so it took into account the submissions made by Ms O’Connor and Ms Duong, together with all the evidence. The Panel accepted the advice of the Legal Assessor.
 
64. The Panel also took into account the Registrant’s evidence both oral and written and the steps she said she had taken to ensure there would never be any repetition of her dishonest behaviour. The Registrant said:
 
“Since 2017 I have reflected on my actions and how I had been practising to ensure that moving forward I would uphold HCPC standards of practice.  I have done this with true remorse and the desire to correct wrong-doings moving forward. I feel I have achieved this by a number of actions:
I have stopped working with all health insurance companies that will not agree to my fees.
I changed to a digital note making software that correlates with a booking system called Cliniko. It also has the ability to time stamp when notes have been produced and what appointment booking it is associated with.  Also it logs any activity related to appointment booking i.e. additional notes submitted, changes in appointment day/time.
Invoices are all digital, either performed on software provided by insurance company, or via my accounting software Xero. My current administrative assistant has access to check if necessary.
In 2020 I established a peer support group with 2 other physiotherapists and a podiatrist to discuss patients, good practice, research and reflect on our own and each other’s practice on a monthly basis.  
We provide written communication to all patients about verbal agreements made prior to starting working together to ensure transparency of practice.
Use of secure software supplied by Linkspace to hold patients’ details, referral sources and payment method agreed. This also has features to show all changes that have been saved, with time stamp and by whom.
I no longer work with or in the same premises as [Person 1].
I have read and taken on board the content of articles regarding the importance of honesty, the different manifestations of honesty in the workplace and the relationship between honesty and trustworthy behaviour.”
 
65. The Panel was in no doubt that the Registrant had learnt a salutary lesson as a result of her dishonest conduct, and being subject to these proceedings, and considered it highly unlikely she would ever behave in this way again. She had acknowledged and admitted her dishonest behaviour, taking full ownership and responsibility for her actions and had not sought to deflect blame or come up with unjustified excuses for her behaviour. By doing so she had demonstrated significant insight into her offending behaviour. In addition she has taken active, relevant remedial steps to prevent a recurrence as detailed above. She had also demonstrated genuine remorse and a recognition of the impact of her behaviour on Patient A, the profession and the public perception of the profession.
 
66. In applying the guidance provided in the case of the Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin), when deciding the issue of current impairment, the Panel determined as follows:
 
• the Registrant had in the past brought the profession into disrepute but was not liable to do so in the future;
 
• the Registrant had in the past breached a fundamental tenet of the profession (to act honestly) but was not liable to do so in the future;
 
• the Registrant had in the past acted dishonestly but was not liable to do so in the future.
 
67. The Panel makes it clear that there is no suggestion that the Registrant is not clinically competent and indeed she has produced references attesting to her skills as a clinician. She candidly acknowledged that falsified records could have impacted upon the appropriate continuing care for Patient A, but there was no evidence that she had put patients at unwarranted risk of harm or would be likely to do so in the future.
 
68. The Panel did not, therefore, find the Registrant’s fitness to practise impaired on public protection grounds.
 
69. The Panel went on to consider whether this was the type of case that required a finding of impairment on public interest grounds in order to maintain public confidence in the profession and the Regulator. The Panel was satisfied that a fully informed member of the public, who was aware of all the background to this case, would have their confidence in the profession and the Regulator undermined if a finding of impairment were not made. Although there were some mitigating circumstances (new in practice as a solo practitioner; placed in a difficult financial position by AXA’s payment parameters; given bad advice by a senior, experienced colleague), committing fraud by submitting invoices for dates when no treatment was carried out and then altering medical records to try and hide that fact, was seriously below the standard expected and was dishonest behaviour, directly related to her role as a physiotherapist. The Panel was, therefore, satisfied that a finding of impairment on public interest grounds was necessary.
 
Decision on Sanction
 
70. In reaching its decision on sanction, the Panel took into account the submissions made by both parties, together with all the written evidence and all matters of personal mitigation. The Panel also referred to the guidance issued by the Council in its Sanctions Policy. The Panel had in mind that the purpose of sanctions was not to punish the Registrant, but to protect the public, maintain public confidence in the profession and maintain proper standards of conduct and performance. The Panel was also cognisant of the need to ensure that any sanction was proportionate. The Panel accepted the advice of the Legal Assessor.
 
71. Before deciding on the appropriate sanction, the Panel first considered the aggravating and mitigating circumstances. The Panel found the following aggravating factors: 
 
• false invoices submitted on six occasions over a six month period, covering 61 appointments that did not take place; 
 
• attempts made to hide the false invoices by manipulating the medical records.
 
72. The Panel found the following mitigating factors: 
 
• no previous disciplinary record; 
 
• these matters occurred several years ago and there has been no recurrence of any such behaviour (the Registrant has continued in unrestricted practice since these events)
 
• full admissions to the facts; 
 
• significant insight;
 
• bad advice given by Person 1, an experienced practitioner;
 
• AXA’s payment system which made it difficult for the Registrant to invoice for an amount she considered commensurate with the treatment provided;
 
• genuine and heartfelt expressions of remorse and apology; 
 
• the money dishonestly obtained was repaid;
 
• positive testimonials.
 
73. The testimonials speak not only of the Registrant’s professional skills and high standards, but also of her moral character. For example:
 
EM - Chartered Physiotherapist:
 
"Zoe goes above and beyond in putting patients first and I’ve known for her to see patients at 10pm at night (because that’s the only time they could do) and working lots of weekends. Zoe puts the patients at the heart of what she does and is absolutely passionate about physiotherapy and ultimately, how she can help that person. She is a very warm, caring, professional and a most excellent physiotherapist. She gives patients the confidence to push their limits and to work towards and exceeding their goals. I no longer work in London but regularly refer my patients to see Zoe.
On a personal level, Zoe has become a very dear friend to me. As a friend I find her loyal, honest, thoughtful and extremely caring. She is the friend that will be there as soon as you need them and will support you, whatever.”
 
Professor JC - Consultant Orthopaedic Surgeon
 
"I have known Zoe Birch since 2011 when she worked at the Hampshire Clinic. I was impressed by her clinical knowledge and her rapport with patients. … I have regularly referred patients to Zoe as she has provided excellent clinical care, always feeds back to me in writing prior to my follow-up appointments and will also contact me if she thinks that a patient is not making the progress that is expected. Many of my patients have commented to me how impressed they have found the care and attention she has given them. I have never had any doubt about her clinical abilities.
I was therefore shocked to learn of the concerns regarding irregularities in billing that have been raised against Zoe. She took the initiative to visit me in clinic to tell me about the accusations soon after they emerged and she was obviously upset, remorseful and appeared totally transparent with me when she spoke about it acknowledging that it was completely unacceptable. I believe that this behaviour was completely out of character.
… I have continued to refer patients to Zoe because I have full confidence in her clinical skills”
 
RT - patient
 
“I hold her in the very highest regard. Her character is unimpeachable, as are her professionalism and integrity.. … I have rarely in my life felt more grateful to someone than I do to Zoe for her expert and caring assistance during my journey to recovery. Zoe is a person who always puts her patients first, who is always thinking about new ways to help them, and who simply gives above and beyond to her patients in terms of time and effort. I absolutely think the world of her.”
 
74. It is clear to the Panel that the Registrant is highly thought of and committed to, and passionate about, her profession as a physiotherapist and the care she provides to her patients. The Panel has been impressed by her candour throughout these proceedings. She has taken full responsibility for her actions. She has shown significant insight and taken appropriate remedial steps.
 
75. However, in light of the serious, dishonest nature of the caution and misconduct, the Panel did not consider this was an appropriate case in which to take no further action. Such a disposal would not adequately mark the seriousness of the Registrant’s behaviour. 
 
76. The Panel then considered whether a caution order might be appropriate in this case, as urged upon it by Ms Duong. The Sanctions Policy states that a caution is likely to be an appropriate sanction for cases in which, inter alia, the issue is isolated, limited or relatively minor in nature. Whilst the other factors listed, such as a low risk of repetition, good insight and appropriate remediation are present in this case, it cannot be said the conduct was isolated, limited or relatively minor in nature. The Registrant submitted false invoices over a period of six months and subsequently manipulated the medical records to reflect the dates of the false invoices. Notwithstanding the extensive mitigation in this case and the context of the dishonest conduct, on no view could that behaviour be described as isolated, limited or relatively minor in nature.
 
77. The Panel thus moved on to consider a conditions of practice order. However, this was not a case where conditions of practice would be appropriate because of the nature of the Registrant’s offending behaviour. Conditions are very much aimed at clinical deficiencies and there were no such issues in this case. The Panel also considered that conditions would not satisfy the public interest by adequately reflecting the seriousness of the Registrant’s dishonest behaviour.
 
78. The Panel next considered whether to make a Suspension Order. The Sanctions Policy states that, 
 
“A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors: 
 
• the concerns represent a serious breach of the Standards of conduct, performance and ethics; 
 
• the registrant has insight; 
 
• the issues are unlikely to be repeated; and 
 
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”
 
79. The Panel reminded itself of the nature of the caution and misconduct, namely dishonestly submitting invoices for appointments that did not take place and then attempting to cover up that dishonesty by manipulating the medical records. Dishonesty is always a particularly serious matter, whether or not it results in any harm to patients and even more so when it takes place within a Registrant's professional practice. Honesty, integrity and trustworthiness are integral to practice and a failure in these respects can undermine the trust the public place in the profession, as the Registrant rightly acknowledged. 
 
80. When considering the guidance above relating to suspension, the Panel was satisfied that all the factors listed are present in this case. The Registrant’s behaviour does represent a serious breach of the Standards of conduct, performance and ethics. The Registrant has significant insight. The Panel believed the Registrant was highly unlikely to ever repeat her dishonest behaviour. In addition, there was ample evidence provided by the Registrant to demonstrate that she had resolved her failings, learnt from the process and taken appropriate remedial steps to ensure there would be no repetition.
 
81. Before deciding whether a suspension order would be appropriate in this case, the Panel also considered whether a striking off order might be the appropriate sanction. The guidance states that, “A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving, inter alia, dishonesty.”
 
82. The guidance also states that, 
 
“A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant: 
 
• lacks insight; 
 
• continues to repeat the misconduct or, where a registrant has been suspended for two years continuously, fails to address a lack of competence; or 
 
• is unwilling to resolve matters.” 
 
83. The Panel considered that a striking off order would be disproportionate in this case and that a lesser sanction would be sufficient to maintain public confidence in the profession and regulatory process. The Registrant has shown significant insight. She has continued to practice in the subsequent years since 2015/16 and there have been no further issues or complaints about her practice. 
 
84. The Panel was, therefore, satisfied that a suspension order would be sufficient to maintain public confidence in the profession and the regulatory process and would send a clear message to the profession at large that such dishonest behaviour would not be tolerated. 
 
85. The Panel took into account the impact such an order would have upon the Registrant, but concluded that the need to protect the public interest outweighed her interests and that no lesser sanction would adequately reflect the seriousness of her conduct.
 
86. Accordingly, in order to maintain public confidence in the profession and the regulatory process and uphold professional standards, the Panel makes a suspension order for a period of three months. The length of the suspension reflects the seriousness of the caution and misconduct, whilst acknowledging the significant mitigation and the fact that there is no ongoing risk of harm.
 
87. This order will be reviewed before its expiry. The Panel does not consider there is anything further the Registrant need do, there being no risk to the public and this sanction is being made to reflect the seriousness of the behaviour.

 

Order

ORDER: The Registrar is directed to suspend the registration of Mrs Zoe Birch for a period of three months from the date this Order comes into effect.

Notes

Interim Order application
 
1. Following its decision on sanction, Ms O’Connor made an application for an interim suspension order to cover the 28 days during which an appeal could be made and thereafter any appeal period, in the event that an appeal is lodged. She submitted that such an order was in the public interest in light of the Panel’s decision to suspend the Registrant and the nature of the caution and misconduct in this case.
 
2. Ms Duong submitted that there was not sufficient grounds for an interim order in this case. She referred to the potentially draconian effect of such an order and argued that it would be disproportionate in all the circumstances. The Registrant had been practising without restriction or issue for the last five years and there had been no repetition of the dishonest conduct. Miss Duong added that the Panel had found there to be no risk to the public, that the Registrant had extensive insight and there was nothing further that she needed to do. Furthermore, the Registrant had a number of patients she was currently treating and she needed time to make suitable alternative arrangements for those patients’ continuity of care. Ms Duong said the bar was set high for an immediate order of suspension on the sole ground that it was in the public interest and that the threshold had not been met in this case, referring to the case of Davey v GDC 2015 WL 6757832.
 
3. The Panel considered the application with care and accepted the advice of the Legal Assessor. The Panel took into account the guidance issued by the HCPTS in its Practice Note on interim orders and the reference to interim orders in the Sanctions Policy. The Panel noted its earlier findings that there was no risk of harm to the public and that its order of suspension was based on public interest grounds alone. The Panel acknowledged that the threshold for an interim order on public interest grounds alone was set high.
 
4. The Panel was satisfied that members of the public, in full knowledge of all the facts of this case, would not have their confidence in the regulatory process undermined if the Registrant were allowed to continue to practise during the appeal period. She had been practising without incident for many years since these matters occurred back in 2015/16 and the Panel had determined that she was highly unlikely to repeat her behaviour. The Panel has already referred to the extensive mitigation in this case and it also accepted that it was appropriate for the Registrant to have time to arrange her affairs with current patients, so as not to jeopardise their ongoing treatment. The Panel also noted the potentially draconian effect of an interim order in the event that the Registrant decided to appeal the decision, which could mean she would end up being suspended for a considerably longer period than the three months the Panel felt was necessary to mark her conduct. In the absence of any ongoing risks to the public, the Panel considered an immediate order would therefore be disproportionate in this case.
 
5. Accordingly, the Panel made no interim order.

 

Hearing History

History of Hearings for Zoe Birch

Date Panel Hearing type Outcomes / Status
14/11/2022 Conduct and Competence Committee Final Hearing Suspended
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