Mr Glen J Winter-Nolan
Profession: Occupational therapist
Registration Number: OT70262
Hearing Type: Final Hearing
Date and Time of hearing: 10:00 06/11/2023
End:
17:00 24/11/2023
Location:
Virtual hearing - Video conference
Panel: Conduct and Competence Committee
Outcome: Suspended
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Allegation
As a registered Occupational Therapist (OT70262) your fitness to practise is impaired by misconduct. In that:
1. Between 12 March 2019 and 7 April 2019 (inclusive) you reproduced text from Colleague 2’s Social Care Capability Framework (SCCF) into your own SCCF.
2. On the following dates you sent versions of your SCCF by email to the following:
a) Colleague 4 on 7 April 2019
b) Colleague 3 by email on 30 April 2019
c) Colleague 5 by email on 6 June 2019
d) Colleague 5 by email on 3 August 2019
e) Colleague 5 by email on 15 October 2019
f) Colleague 3 on 17 October 2019
3. Your conduct at paragraphs 1 and/or 2 above was intended to give the impression that the work was your own when that was not the case.
4. Your conduct at paragraphs 1-3 above was
a) misleading;
b) motivated to secure unfair advantage and/or
c) dishonest.
5. The matters in allegations 1, and 2, 3 and/or 4 constitute misconduct.
6. By reason of your misconduct your fitness to practise is impaired
Finding
Preliminary Matters
Hearing in Private
1. R2 has made a written submission that this hearing should be held entirely in private. She explained that for [redacted] health reasons, she is unable to read documents provided to her, she is “unable to provide any form of reasoned discussion or explanation” and has no “clear memory of the majority of her employment at KCC [redacted]”. The HCPC submits that this information is not supported by medical evidence.
2. The Procedure Rules 2003 state: the proceeding 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 health professional, the complainant, any person giving evidence, or of any patient or client, the public should be excluded from all or part of the hearing.
3. The HCPC submits that the concerns raised in this hearing are not so inextricably linked to health or private matters that the hearing should be wholly in private. In order to protect the Registrant's private life, it would be practicable to separate out those elements of the hearing that should be held in private from any which should not. There is no necessity for the entire hearing to be held in private, to protect the Registrant's private life.
4. R1 submitted that the hearing should be held entirely in public.
5. The Panel considered advice from the Legal Assessor and the HCPTS Practice Note on Proceeding in Private, before deciding to proceed partly in private, in relation to any health matters of R2.
Background
6. R1 is an Occupational Therapist (OT) who was employed by Kent County Council (KCC) on a KR9 grade. During the course of his employment with KCC he applied to become an Experienced Practitioner (KR10). KCC uses a Social Care Capability Framework, (“SCCF”) process to support career progression for registered practitioners, including OTs. In addition to producing “a portfolio of evidence which demonstrates the individual’s competency for the requirement at each stage of the framework”, such portfolio containing in particular “a central document completed by the applicant as well as other supporting documentation such as critical reflections and feedback from direct observations”. The “final step” in the process is the submission of the portfolio to an assessment panel who decide whether the evidence meets the criteria to support career progression. If the assessment panel is so satisfied, there is automatic progression to the next level, and this also means progression in pay grade. In R1’s case this would therefore have been from KR9 to KR10.
7. The work required for the SCCF process should be the candidate’s own. The candidate’s critical reflection on their work, presented as part of their SCCF portfolio, needed to be personal to them. The process of critical reflection (in this context) required the candidate to think about their own practice and ideas and then examine and question their own thinking. If a candidate used another practitioner’s wording as their own reflections on their own work, then it would not have been their own work. Further, if they had obtained progression from the KR9 grade to the KR10 grade based on work which was not their own, that would not have been fair. If that had happened, such a career progression would have been obtained by misleading the panel. However, R1’s SCCF was never presented to a final panel.
8. When R1’s SCCF was reviewed by an operational manager, Colleague 5 (MM), she noticed similarities with the SCCF submitted by Colleague 2 (FC), who had already completed the SCCF process successfully. Following an investigation conducted by KCC the matter was referred to the HCPC on 7 November 2019. An Investigating Committee (IC) decided that there is a case to answer in relation to an allegation of impairment of Registrant 1’s fitness to practise.
9. At the outset of the hearing, R1 made admissions to particulars 1 and 2 and admitted particular 4a in part. He denied particular 3 and 4b and 4c.
10. With regard to R1 the HCPC submits that he acted dishonestly by submitting an e-portfolio which was plagiarised. Further, R1 acted in a way which fell far short of what would be proper in the circumstances and what the public would expect of an HCPC registered OT. In doing so, he breached standards 9.1 and 9.2 of the HCPC Standards of conduct, performance and ethics (January 2016) and 2 and 9.1 of the HCPC Standards of Proficiency for Occupational Therapists (March 2013).
11. R2 was employed by KCC as a Senior Practitioner Occupational Therapist (SPOT) at the material time.
12. The Procedure rules provide that, where it would be just to do so, a Panel may consider and determine together: two or more allegations against the same Registrant; or allegations against two or more Registrants. For this hearing the cases against R1 and R2 have been joined but some of the evidence presented is only relevant to one of the Registrants. Each Registrant is entitled to have their case decided solely on the evidence against them. Therefore, the Panel has only considered the evidence relevant and admissible with regard to the allegation against R1 when deciding his case.
Evidence
13. The Panel read the joint hearing bundle of 1,284 pages and written submissions from the HCPC and R1.
14. The Panel heard oral evidence from SE (KCC Counter Fraud Specialist), CH (KCC Investigating Officer and SPOT), DW (retired KCC Counter Fraud Specialist), MM (KCC Operational Manager), FC (KCC SPOT), SL (KCC SPOT) and R1.
15. FC stated that she prepared an SCCF using a new set of documentation. This was submitted to a panel in December 2016 and she was later promoted by KCC. On 14 November 2018 R2 requested a copy of FC’s SCCF. FC replied sending her draft SCCF to R2. R2 stated she would only share the SCCF with SL.
16. SL stated she was the supervisor of R1. R2 sent her a copy of FC’s SCCF on 15 November 2018. SL did not open the SCCF email until October 2019 when she was asked to do so by MM and had not shared it with anyone else.
17. SE stated that on 19 November 2019, she was assigned as the investigator in charge of the fraud investigation regarding the submission of an SCCF by R1 on 15 October 2019 to MM. On 21 November 2019, a Senior ICT Compliance Officer at KCC provided access to R1’s virtual desktop. The investigation examined if the document sent to MM by R1 was plagiarised and if he had submitted any other plagiarised versions of the SCCF belonging to FC. SE provided a table of the different versions of the SCCF discovered on R1’s virtual desktop. On 5 February 2020 SE and DW conducted a PACE interview with R1. On 7 April 2020 SE created an excel spreadsheet and analysed the metadata for the word documents saved in R1’s desktop and Outlook mailbox relating to the SCCF. On 8 April 2020 SE accessed the virtual desktop for R1 and used the Microsoft Word comparison tool to compare the different versions of the SCCF. SE identified that R1 sent a version of the plagiarised SCCF to colleagues on six occasions, between 7 April 2019 and 17 October 2019.
18. CH conducted the disciplinary investigation of this matter on behalf of KCC, interviewed R1 on 11 February 2020 and prepared a report dated 5 March 2020. R1 accepted that 76% of the SCCF he emailed to MM on 15 October 2019 had been copied and explained that he was using FC’s SCCF as a template but that this was not the final version. He sent the SCCF to MM in error and would have wanted MM to have contacted him to inform him he had sent the wrong version to her. R1 stated R2 informed him that MM was not keen on him completing the SCCF and was not happy for him to develop. SL did not provide written feedback on his three practice observations which he needed to complete his SCCF.
19. On 29 November 2019 CH sent a questionnaire to R2 asking her about FC’s SCCF and whether she provided R1 with a copy of it. R2 replied that she had shared FC’s SCCF with another SPOT (SL) and had shared a hard copy during a supervision session with another SCCF applicant (AI) she supervised. R2 did not state that she had shared a copy with R1 and answered ‘no’ to the question ‘were you aware that R1 had access to FC’s portfolio?’ SL confirmed on 6 December 2019 that she had not shared the SCCF sent to her with R1.
HCPC submissions
20. R1 was employed as an OT by KCC from August 2015 but left in January 2018. He was re-employed around the end of July 2018 on a KR9 grade as an OT. KCC uses a SCCF to support career progression for registered practitioners, including OTs.
21. Progression through the SCCF is based on the successful submission of a portfolio of evidence which demonstrates the individual’s competency for the requirement at each stage of the framework. The portfolio contains a central document completed by the applicant as well as other supporting documentation, such as critical reflections and feedback from direct observations. The portfolio is supported by an assessment report from a supervisor or assessor. It is submitted to an assessment panel who consider if the evidence presented meets the criteria and therefore the applicant will be eligible for career progression. In all cases, individuals who submit a portfolio that meets the criteria will automatically progress to an experienced OT post. The individual will progress one pay grade from KR9 (starts at £28,925) to KR10 (starts at £33,082).
22. A “template” document is available on the KCC intranet webpage. R2 was a SPOT. This is a KR11 grade at KCC, with supervisory duties. She was employed in this role from March 2017. From around May 2017 onwards, R2 and R1 were in a personal relationship with each other.
23. On 24 July 2018, whilst he was waiting for his DBS clearance, before starting his re-employment with KCC in the summer of 2018, R1 sent a “first draft” of an SCCF to R2 “for your considered opinion”. On his re-employment until 12 July 2019, R1’s supervisor was Colleague 3 (SL).
24. R1 emailed SL a copy of an SCCF document. During supervision on 22 August 2018 SL and R1 discussed the areas of his development which he needed to meet the SCCF criteria.
25. In due course thereafter, R1 registered for the SCCF framework process to progress through the framework to the level of “Experienced Practitioner” and received confirmation by letter of his registration on 12 September 2018, setting out the key dates for the process. The letter reads: “…Thank you for submitting your Social Care Capability Framework (SCCF) Registration and informing us of your intention to submit a portfolio for career progression to Experienced Practitioner through this framework… You may find the Kent page (website address) a useful tool to download all the necessary documentation for your portfolio…”
26. R1’s portfolio was due to be submitted by 23 October 2019, with the panel assessment date being 20 November 2019.
27. In November 2018, R2 obtained a copy of an SCCF portfolio from FC, another SPOT in the organisation, who had previously successfully completed the SCCF process and had achieved career progression through having done so. R2 then asked and gained FC’s permission to share this SCCF with SL. R2 specifically stated that she would not share it with any prospective SCCF applicants. Notwithstanding this, on 12 March 2019, R2 emailed FC’s SCCF to R1.
28. Subsequent versions of R1’s SCCF thereafter contained varying but substantial amounts of FC’s work. This first came to light when MM, having taken over R1’s supervision (when SL moved to another part of the organisation), was in the process of reviewing R1’s SCCF sent to her on 15 October 2019, shortly prior to the submission deadline.
29. MM noticed substantial similarities between the SCCFs of R1 and FC. She asked R2 to review the SCCF from R1 with her. Having done so, MM raised concerns with her own manager.
30. The fraud investigation was carried out by SE, who examined the metadata and text content of versions of R1’s SCCF emailed during 2019. SE found that plagiarised versions of FC’s SCCF had been sent to colleagues by R1 on 6 occasions.
31. The KCC investigation also found a different version of his SCCF (named ‘Version 6’ by SE in her evidence) saved on R1’s computer. This ‘Version 6’ did not contain substantial amounts of FC’s work. The HCPC submits that this version had apparently only been created on 30 October 2019, after R1 had been alerted that there were concerns that he had plagiarised FC’s work.
R1’s submissions
32. R1 gave oral evidence and provided written submissions to the Panel.
33. With regard to the KCC investigation concerning R1 under the Computer Misuse Act and the Fraud Act; no further criminal or civil action was taken against R1. There was no monetary loss to KCC and a caution could not be given to R1 because there was no admission of an offence. The decision of the KCC fraud team was to take no further action against R1.
34. R1 admits he sent copy SCCFs via email for review by his line manager but they were not intended for final submission to the KCC assessment panel. There was an external step required for auditing purposes before R1’s SCCF was submitted to the panel. With regard to ‘Version 6’ of his SCCF, which was the document he stated he intended to send. He submitted it has not been proved that it did not exist prior to 30/10/2019.
35. CH confirmed that R1’s SCCF was not submitted to a KCC assessment panel, as confirmed by SE. The Direct Observations in R1’s SCCF had not been completed by SL. R1 emailed SL to advise he would pre-populate it to assist SL in supporting the completion of the SCCF. This reflected the visits SL had observed.
36. In his interview R1 stated that, subsequent to 15 October 2019, R2 had asked him to resign. This appears to have been to safeguard her own interests which he did not know at the time of the investigation.
37. Communication between R1 and KCC colleagues was driven by R2 and this was confirmed in his first disciplinary hearing with KCC.
38. CH confirmed that in her role as a SPOT she would not have left an email un-read for six months.
39. DW confirmed a WhatsApp exchange between himself and SE prior to the HCPTS hearing, regarding if they were attending the hearing, in breach of witnesses not communicating with each other prior, during or post an outcome from the hearing. It is reasonable to question further conversations that may have happened between them, especially given the amount of time that has elapsed.
40. MM gave evidence that: “we would have had to agree the portfolio at the end and sign it off before submission to be heard by the panel”. This fact is also supported by CH and SE’s evidence.
41. MM confirmed R1’s portfolio was not reviewed by her in June 2019 as she was too busy and SL was his supervisor. There was no support for him in this process from MM or SL.
42. MM confirmed that R1 had done most of the work and SL needed to write up her observations. This confirms that a ‘Version 6’ SCCF containing R1’s work was in existence, and they had not raised any queries or concerns. MM could have asked and cross checked this at any time. R1 was unaware that the Operational Manager (MM) had not completed/signed off his SCCF.
43. MM stated following the observation she completed (which was arranged by R1) on 06/09/2019: he is very good with clients and engaging them in the assessments. This is further supported by the Service Manager RM who stated: [R1]’s Capability Framework was started during his first stint with KCC; he had made a niche for himself especially around Enablement and he enjoyed this part of our business. [R1] likes to see clients improve and has been complemented on work he had done previously.
44. RM said R1 had saved the Council money with some of the work he had previously done and there were no concerns around his work. This supports further that his ability to practise is not impaired. MM stated he was nearly there, and she knew his work. She looked at FC’s SCCF because she had not written an observation herself and wanted to understand what was required and the process.
45. MM had not contacted R1 about the SCCF version he sent her on 15 October 2019 (with 76% similarities to FC’s SCCF). Had he realised at the time that he had sent the incorrect version he would have contacted MM. However, the onus and responsibility of championing development and support in doing so, is with senior members of staff/line managers/supervisors/mentors.
46. MM confirmed she thought R1 was ready to progress to KR10 from KR9. This supports further that his fitness to practice has not been impaired.
47. FC confirmed she had not sent a final copy to R2, but only a draft and not the final SCCF because she was busy and did not check her email. R1 believes that this further supports that what he sent in genuine error was not a final version. This is supported by R1’s previous statements and MM’s evidence regarding June 2019. SL accepted that the support provided during the SCCF process for R1 should have been better.
48. R1 submits that his fitness to practise is not currently impaired. Since the 07/11/2019 email from KCC there have been no sanctions/restrictions on his fitness to practise, or further complaints. Furthermore, his practice and ability to practise have not been the points of concern and no one has raised concerns about his practice. There have been no professional, personal, public or other concerns with his practice or conduct.
49. Since 07/11/2019 R1 has progressed his career from OT to Team Manager on the merits of his skills and experience. He has from the beginning of KCCs processes and subsequent HCPC processes participated and engaged throughout. He has accepted throughout the KCC and HCPC process that he sent the incorrect document on 15 October 2019.
50. R1 accepts he should have checked what he was sending, but MM and FC have sent an SCCF that they did not check, as they were too busy.
51. R1 at the time was delivering moving and handling training (single handed speciality) to the Enablement team, working as the lead OT within KCC on the Discharge to assess pathway, supervising one registered OT, and one un-registered staff member (OT Assistant). It is reasonable, considering the evidence given by MM and FC, that R1 was genuinely too busy to check the SCCFs he sent.
52. R1 has maintained that the incorrect version of his SCCF was sent, and SE acknowledges there was a version of the SCCF which was significantly different to the other versions.
53. The SCCF document provided to R1 by R2 was being used as a draft template. As R1 added his own work, he would remove FC’s work and the SCCF was never signed off for a panel or presented to one.
54. The allegations against R1 cover dates from 12 March 2019 to 17 October 2019. Since leaving KCC, and the structure that was in place at the time, R1 has progressed the equivalent of five positions and is now a Team Manager. All this progression with various Local Authorities has been achieved with the Local Authorities’ knowledge of the current HCPTS proceedings and what it relates to. It is reasonable to believe the allegations against R1 have been remedied as far as practicably possible. He has accepted throughout he should have checked what he was sending. MM and FC also both made human errors in sending respective emails and content. R1 has not had any further concerns or complaints raised against him in the last four years, which indicates that the acts or omissions are unlikely to be repeated.
55. In conclusion with the evidence provided and heard during the hearing:
(1) It can be confirmed that R1 has engaged fully over the last four years.
(2) He has acknowledged and accepted accountability at the time of the allegations, that he should have checked what he was sending.
(3) It is acknowledged that there is a version of the SCCF which R1 had which was completely different from the versions presented in evidence.
(4) It has been confirmed by the evidence given by the HCPC witnesses and contained within the first disciplinary hearing, there are no concerns about R1’s fitness to practise when engaging with the public and colleagues.
It is reasonable to believe that his fitness to practise is not impaired currently, as set out in the HPCTS guidance documents.
Legal Assessor's advice
56. The Legal Assessor advised the Panel to consider the HCPTS Practice Notes entitled "Drafting Fitness to Practise Decisions" and "Making decisions on a Registrant’s state of mind". The burden of proof is upon the HCPC in respect of the factual particulars. When the Panel is considering whether an alleged fact is proved, the standard of proof required is on the balance of probabilities. In other words, the Panel must be satisfied that the act or omission alleged is more likely than not to have occurred before it can find it proved.
57. The Procedure rules provide that, where it would be just to do so, a Panel may consider and determine together: two or more allegations against the same Registrant; or allegations against two or more Registrants. If allegations against more than one Registrant are joined, it will not necessarily be the case that all of the evidence presented is relevant to the allegations faced by both Registrants. Each Registrant is entitled to have their case decided solely on the evidence against them and the Panel must take care to consider evidence only in relation to the allegation and Registrant to which it relates.
58. The Panel should set out the undisputed facts, the facts alleged, the facts in dispute, and in relation to the latter, the findings of fact which it made and why. Where the credibility and/or reliability of witnesses is in issue, or two witnesses give contradictory evidence, the Panel should set out any factors that it considered in giving appropriate weight to a witness's evidence, or which led to the evidence of one witness being preferred over another. This will help readers understand why the Panel has reached a particular decision on a particular issue. Good character evidence is relevant to this exercise.
59. The Panel should make findings about what happened, before determining the Registrant’s state of mind or motivation at the time of the behaviour in question. The findings about what happened, will form an important part of the evidence to be examined when determining the Registrant’s state of mind or motivation. The question of what a person's state of mind was, is a question of fact.
60. In Kuzmin v General Medical Council (GMC) [2019] EWHC 2129 (Admin) it was decided that, unless it would be unfair to do so, Tribunals are entitled to draw an adverse inference when a practitioner does not give evidence at their MPT hearing. The Court concluded that a Tribunal has the power to draw inferences from silence and it is in the public interest that Tribunals have that power. Whether to exercise the power to draw an adverse inference from silence in disciplinary proceedings will be highly fact dependent and an inference should not be drawn unless the following relevant criteria are met:
• A prima facie case to answer has been established;
• The practitioner has been given appropriate notice and warning that, if they do not give evidence, then such an inference may be drawn. The practitioner must be given an opportunity to explain why it would not be reasonable for them to give evidence and, if it is found that there is no reasonable explanation, be given an opportunity to give evidence;
• There was no reasonable explanation for the practitioner not giving evidence; and
• There were no other circumstances which would make it unfair to draw an adverse inference.
61. Lord Justice Hickinbottom noted it is likely to be unfair to draw an adverse inference if, for example, a practitioner is not given prior notice that an adverse inference may be drawn should they not give evidence or fail to answer a particular question. It may be useful for regulators to provide guidance confirming the existence of the power to draw adverse inferences and how it may be used.
62. The Panel must decide questions about the Registrant's state of mind on the usual civil standard of proof (the balance of probabilities). The case law in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67, and Raychaudhuri v GMC [2018] EWCA Civ 2027, states: When making decisions involving alleged dishonesty, the Panel will need to determine whether the Registrant acted as an honest person would have acted in the circumstances. This means asking two questions:
(1) What did the Registrant know or believe as to the facts and circumstances in which the alleged dishonesty arose?
(2) Given the Registrant’s knowledge and belief of the circumstances they were in, was the Registrant’s conduct dishonest by the standards of an “ordinary decent person”?
63. In respect of the first question, although this list is not exhaustive, in determining what the Registrant knew or believed as to the facts and circumstances in which the alleged dishonesty arose, the Panel should consider the following factors:
• Any surrounding evidence speaking to what the Registrant knew or believed about what
they were doing, for instance, what they said about it, what they have been told about it, what information was available to them, and what they recorded about it;
• Any evidence relating to what was expected of the Registrant in the particular circumstances;
• Any evidence relating to the Registrant’s understanding of the wider context, for example: any rules or practices in the workplace, any individual requirements of the service user and so on;
• Any subsequent account given by the Registrant as to what they knew or believed, and the credibility of that account.
64. In respect of the second question, the Panel should consider whether, taking account of the Registrants’ understanding of the circumstances, an ordinary decent person would find the conduct to be dishonest. This is purely an objective test. The Registrants’ own standards of honesty are irrelevant here; they are held to the standards of society in general.
65. In Wingate v Solicitors Regulation Authority [2018] EWCA Civ 366 it was decided that integrity is a broader concept than honesty. In professional codes of conduct, "integrity" expresses the higher standards that society and professions expect from professionals. Integrity connotes adherence to the ethical standards of one's profession and involves more than mere honesty.
66. In relation to the ground of misconduct there is no statutory definition of misconduct but Lord Clyde in the case of Roylance v General Medical Council (No.2) [2000] 1 A.C. 311 stated that: Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standards of propriety, may often be found by reference to the rules and standards ordinarily required to be followed in the particular circumstances. The Panel should therefore consider if the Registrants breached any of the HCPC’s Standards.
67. The fact that a panel has found some facts proved, does not mean that a finding of the statutory ground will follow. Similarly, if the Panel finds the statutory ground applies, a finding of impairment is not automatic. Each stage must be considered separately, and reasons given for the Panel's decisions. Whether any of the proved facts amount to serious misconduct and if so, whether the Registrant is currently impaired, are matters for the Panel's judgement.
68. The Panel should consider the HCPTS Practice Note "Fitness to Practise Impairment". The test of impairment is expressed in the present tense; that fitness to practise “is impaired.” A Registrant may have been impaired at the time of the failing identified in the allegation. However, the Panel’s task is to form a view about the Registrant’s current fitness to practise, by taking account of the way in which the Registrant has acted or failed to act in the past and, looking forwards, whether the Registrant’s ability to practise safely is compromised; and/or whether public confidence in the profession would be undermined, in the absence of a finding of impairment. Thus, in determining fitness to practise the Panel must take account of two broad components: the ‘personal’ component: the current competence, behaviour etc. of the Registrant; and the ‘public’ component: including the critically important public policy issues.
69. Mr Justice Silber set out guidance in Cohen v General Medical Council [2008] EWHC 581 (Admin) that: “It must be highly relevant in determining if a doctor’s fitness to practise is impaired that first his or her conduct that led to the charge is: (a) easily remediable? (b) has been remedied? (c) is highly unlikely to be repeated?”
70. An additional relevant High Court case is: Cheatle v General Medical Council [2009] EWHC 645 (Admin) in which Mr Justice Cranston stated: “There is clear authority that in determining impairment of fitness to practise at the time of the hearing regard must be had to the way the person has acted or failed to act in the past.... In my judgment this means that the context of the doctor’s behaviour must be examined. In circumstances where there is misconduct at a particular time, the issue becomes whether that misconduct in the context of the doctor’s behaviour both before the misconduct and to the present time, is such as to mean that his or her fitness to practise is impaired. The doctor’s misconduct at a particular time may be so egregious that, looking forward, a Panel is persuaded that the doctor is simply not fit to practise medicine without restrictions, or maybe at all. On the other hand, the doctor’s misconduct may be such that, seen within the context of an otherwise unblemished record, a Panel could conclude that, looking forward, his or her fitness to practise is not impaired, despite the misconduct.”
71. Mr Justice Mitting in Zygmunt v General Medical Council [2008] EWHC 2643 (Admin) stated: “Smith LJ helpfully identified recurrent features of cases in which impairment of fitness to practice has been found to exist at paragraph 25.50 of her report: I think it would be helpful, in the resolution of the problems that I am about to outline, if I analyse the reasons why a decision maker might conclude that the doctor is unfit to practise or that his/her fitness to practise is impaired. In the examples I discussed above, four reasons for unfitness recurred. These were (a) that the doctor presented a risk to patients; (b) that the doctor had brought the profession into disrepute; (c) that the doctor had breached one of the fundamental tenets of the profession; and (d) that the doctor’s integrity could not be relied upon. Lack of integrity might or might not involve a risk to patients. It might or might not bring the profession into disrepute. It might be regarded as a fundamental tenet of the profession. I think it right to include it as a separate reason why a doctor might be regarded as unfit to practise, because it is relevant even when it arises in a way that is quite unrelated to the doctor’s work as a doctor.”
72. The High Court revisited the issue of impairment in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) where Mrs Justice Cox noted: “In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant Panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.” In reaching a decision as to whether a Registrant’s misconduct impairs current fitness to practise, the Panel should take into account the need to maintain public confidence in the profession as well the requirement to maintain proper standards of conduct and performance.
73. When assessing insight, the Panel will need to consider what effect, if any, the fact that the Registrant has denied the allegation has on this assessment. It is wrong to conclude that a Registrant who has denied the facts alleged cannot then demonstrate insight at the impairment stage. Each case must be considered on its own facts, but a nuanced approach should be taken in assessing insight in these circumstances. In assessing harm and future risk, the Panel should take account of the fact that harm can be caused in different ways. It may be that some harm has an adverse effect on physical or mental health. In other cases, harm may include a breakdown in trust within a wider team that may affect the safe and effective delivery of care.
74. In Yeong v General Medical Council [2009] EWHC 1923 (Admin) Mr Justice Sales said at paragraph 21: “It is a corollary of the test to be applied and of the principle that a Panel is required to look forward rather than backward that a finding of misconduct in the past does not necessarily mean that there is impairment of fitness to practise - a point emphasised in Cohen and Zygmunt...In looking forward, the Panel is required to take account of such matters as the insight of the practitioner into the source of his misconduct, and any remedial steps which have been taken and the risk of recurrence of such misconduct. It is required to have regard to evidence about these matters which has arisen since the alleged misconduct occurred.”
Decision on facts
1. Between 12 March 2019 and 07 April 2019 (inclusive) you reproduced text from Colleague 2’s Social Care Capability Framework, (“SCCF”) into you own SCCF.
75. The Panel is in receipt of both documentary and oral evidence to support this particular plus the admission of R1. SE gave evidence of her qualifications to carry out an investigation into the matter for KCC. She conducted a forensic examination of R1’s KCC intranet “desktop” and KCC Outlook mail folder, particularly examining the metadata of documents, and emails. This shows that: a copy of an SCCF produced by FC was sent by email to R1 from R2’s email account on 12 March 2019; R1 created an SCCF between the above dates, which contained substantial text from FC’s SCCF, and was sent to R2 for comments on 7 April 2019.
76. The Panel finds particular 1 proved to the required standard based on the admission of R1 and the HCPC’s evidence.
2. On the following dates you sent versions of your SCCF by e mail to the following:
a) Colleague 4 (LPN) on 07 April 2019;
b) Colleague 3 (SL) by e mail on 30 April 2019;
c) Colleague 5 (MM) by e mail on 06 June 2019;
d) Colleague 5 by e mail on 03 August 2019;
e) Colleague 5 by e mail on 15 October 2019;
f) Colleague 3 by e mail on 17 October 2019.
77. There is documentary and oral evidence to support all dates in this particular and the admission of R1. Particular 2a relates to R2 (Colleague 4 / LPN). The HCPC supplied evidence from SE’s investigation. In relation to 2b the Panel has also received evidence from SL and CH. As to 2c, d and e from MM and for 2f from CH.
78. The Panel finds each sub particular of 2 above proved to the required standard based on the admission of R1 and also by the HCPC’s evidence.
3. Your conduct at paragraph 1 and/or 2 above was intended to give the impression that the work was your own when that was not the case
79. The HCPC submits that each time R1 sent a version of the SCCF, as set out in particular 2, he accompanied it with an email that used the first person (“my” and “I”) and the SCCFs attached referred to “Glen Winter-Nolan” extensively.
80. The covering emails do not assist the recipients in understanding that text within the versions of the SCCF sent was partly that of FC. The wording of some of the covering emails positively suggests that the work was R1’s own, for example: “Here is my framework so far” (emphasis added). “Please see what I have completed so far”, (emphasis added). “Hopefully this is it…”
81. The text within the SCCFs sent was substantially the same as that within FC’s SCCF, and did not contain R1’s personal critical reflection on his work and suitability for progression. Even the SCCF sent by R1 on 15 October 2019 remained a 76% match to FC’s work.
82. In his evidence to the Panel, R1 stated that he mistakenly attached the incorrect SCCF on six occasions between April and October 2019. The Panel found his account, that he attached the wrong document on six occasions was not credible. In particular, on 13 August 2019, MM and R1 had a face-to-face meeting to discuss the version he sent to her on 3 August 2019. Following that meeting MM sent back R1’s SCCF with comments embedded, to which he replied, but at no stage did he mention that he had sent her the wrong document. The Panel finds it is not correct that ‘Version 6’ was the version he intended to send on these previous occasions and accepted the evidence of SE that this document was created on 30 October 2019 in accordance with the metadata. In any event, R1 accepted that he could, and perhaps should, have been more explicit that it was not all his own work.
83. The oral evidence of FC, the “originator” of the SCCF material reproduced by R1, was that she had completed an SCCF process and successfully progressed from KR9 to KR10 having presented her portfolio to a panel in January 2017. She described the task of completing the SCCF as “hugely onerous” and carried it out in her own time rather than being able to fit it in at work. She had meetings and shared her reflections with her own supervisor but said that the actual writing for the SCCF was done at weekends.
84. The Panel finds that FC was a credible witness. She provided the Panel with helpful evidence and background as to the requirements and expectations when completing the SCCF process. Also, FC told the Panel of her understanding of the use that was going to be made of her work, when she was asked by R2 to share it with R2 and SL. FC wrote in her original response to R2 when providing her SCCF on 14 October 2018: “… I wouldn’t expect anyone to copy it…”. FC’s evidence to the Panel was consistent with the evidence of SE.
85. The email thread which went to R1 on 12 March 2019 contains FC’s comment about not expecting anyone to copy her work. It was put to R1 that he had received part of the email thread which contained the above wording from FC, but he said that he could not now recall reading the whole thread. He said he did not know at the time that this SCCF was from someone who had been successful with the process.
86. R2 did not include anything in the body of her email to R1 on 12 March 2019, although the email was forwarded with the chain including FC’s comment “…I wouldn’t expect anyone to copy it either”. R1 responded to R2 on the same day “Thank you”, and it is this final email in the chain that was found on R1’s Outlook system by SE during her investigation.
87. The Panel finds that R1 would have been aware that he was not expected to copy FC’s SCCF. R1 has given evidence that he and R2 were in a personal relationship at the relevant time and she was not his supervisor for the SCCF process. R1 would have been aware that FC’s SCCF was being sent to him as an example of the work of a previously successful candidate. FC’s name was contained within the document and he would have known that she was now a SPOT. In his evidence R1 accepted he knew that his SCCF required his personal work. He stated his work as an OT was busy and both he and the other OTs going through the SCCF process had said that they “didn’t know what to do”. He said that historically whether an SCCF portfolio was sufficient to meet the required criteria had been variable and there was no “Golden Thread”. R1 stated that his intention had been to work through FC’s SCCF as a “template”, removing the original text and entering his own.
88. The Panel finds some changes were made by R1 instigated by the August 2019 discussion with MM, and the prompts to further work she provided in capital letters in the version she sent back to R1 on 13 August 2019. However, given the overall similarities in the various versions of the SCCF sent by R1, with even the 15 October 2019 version being a 76% match, and the lack of any clear differentiation between his and FC’s text, it is not credible that R1 was intending to remove all FC’s own text and reflections and substitute his own.
89. The HCPC evidence from SE shows that R1 did ultimately produce a version of the SCCF, referred to as ‘Version 6’, which was significantly different from FC’s SCCF. SE explained that the metadata analysis shows that this version was not created until 30 October 2019. R1 stated that R2 telephoned him saying that he had submitted the “wrong” version of the SCCF, and telling him to delete phone and computer information between them and resign. That conversation was said to have taken place on 23 October 2019, 7 days before the creation of ‘Version 6’.
90. It was put to him during the PACE interview with SE that he had not made ‘Version 6’ until 30 October 2019. In his evidence to the Panel R1 stated that he could not remember when ‘Version 6’ had been made but that he would not have had time to create ‘Version 6’ in the period suggested. He also relies on the fact that no criminal prosecution was proceeded with under the Fraud Act against him.
91. SE stated that ‘Version 6’ was created on 30 October 2019 but when asked by the Panel she said that, as she was not a metadata specialist, she could not be “100% confident”. SE did say that the metadata for ‘Version 6’ was different from all of the metadata for the other versions of the document that she examined, and that the metadata stated that ‘Version 6’ was created on 30 October 2019.
92. SE explained that the Counter Fraud team were asked by the Crown Prosecution Service to review all their investigations due to the Covid-19 pandemic and consider any available disposal mechanisms. R1’s case was regarded as an “attempt” with no financial loss to the organisation, and therefore it was decided that, in this context, the disciplinary action taken by R1’s employer and the referral to the HCPC would be an adequate disposal.
93. The Panel finds that it is more probable than not that the ‘Version 6’ document was only created by R1 once he had been tipped off and realised that he had been found out having plagiarised FC’s work.
94. The Panel finds particular 3 is not proved to the civil standard in relation to particular 2a, because if R1 believed R2 knew it was not R1’s own work, he was not trying to give the impression that it was his work, and it was not therefore his intention that she should have that impression. The HCPC did not prove to the requisite standard R1’s state of mind when this email was sent.
95. The Panel finds that R1’s actions were intended to give the impression that the work was his own, when that was not the case, and finds particular 3 proved to the civil standard in relation to particulars 2b-f inclusive.
4. Your conduct at paragraphs 1 -3 was:
a) Misleading;
b) Motivated to secure unfair advantage; and/or
c) Dishonest.
96. The HCPC submits that R1’s state of mind must have been such that not only did he know what he was doing, but he could not genuinely have believed that reproducing large quantities of text from someone else’s work into his own, in order to secure career progression and a pay rise, was fair or indeed honest. It is submitted by the HCPC that his conduct was misleading, motivated to secure unfair advantage and dishonest. The explanation from R1 that his work was extremely busy and the supervision and support he received with his SCCF was inadequate, is not sufficient.
97. The Panel first considered whether R1’s conduct at particulars 1, 2a-f and 3 was misleading. The term ‘misleading’ is to be given its ordinary meaning and does not require the Registrant to intend to mislead or for anyone actually to have been misled. The Panel considered R1’s conduct together with the correspondence between R1 and his colleagues to determine if his conduct was objectively misleading. The Panel finds that his conduct gave the impression the work was his own when it was not the case. The Panel finds that the HCPC has proved particular 4a, (except with regard to particular 2a), to the required standard based on the admission of R1 that the emails and documents he sent “could be read as misleading” and the HCPC evidence presented.
98. FC stated that the work required to go through the SCCF process was “hugely onerous”. To secure career progression without doing the personal work required to do so, would be unfair, according to the HCPC. R1’s conduct at particulars 1, 2a-f and 3 in plagiarising FC’s SCCF gave him an unfair advantage over other colleagues who were completing their SCCFs without this inappropriate access. In addition, this “hugely onerous” task was made easier for him because he chose to copy a successful candidate’s document. By creating a plagiarised SCCF and sending it to his colleagues for review, intending to give the impression the work was his own when this was not the case, he intended to secure an unfair advantage in his progression from KR9 to KR10.
99. The Panel finds R1 must have been aware that he was not permitted to simply copy FC’s SCCF and that it was being sent to him as an example of the work of a previously successful candidate. He accepted he knew that his SCCF required his personal work. Given the overall similarities in the various versions of the SCCF sent by R1, it is not credible that R1 intended to remove all of FC’s own text and reflections; even the version sent on 15 October was a 76% match to FC’s original document that had been forwarded to him. Also, the Panel does not find that R1’s explanation that he had on his system an original SCCF containing his own work, but mistakenly sent the plagiarised version six times is credible. The Panel finds that it is more probable than not that the ‘Version 6’ document was only created by R1 once he had been tipped off and realised that he had been found out having plagiarised FC’s work. Having established R1’s state of mind, the Panel applied the test in Ivey v Genting Casinos UK (Ltd) T/A Crockfords [2017] UKSC 67. Taking into account R1’s knowledge and belief of the circumstances, the Panel finds that R1’s conduct was dishonest by the standards of ordinary decent people.
100. The Panel finds that the HCPC has proved particulars 4b and 4c, (except with regard to particular 2a), to the required standard.
Decision on grounds and impairment
101. The HCPC submits that a registrant is required to comply with the HCPC “Standards of conduct, performance and ethics”.
102. The statutory ground in this case is based on R1’s conduct. His competence as an OT has not been questioned. The facts proved, establish that R1 has acted dishonestly.
103. The Panel considered whether R1’s behaviour in respect of the proved facts amounts to misconduct. Misconduct is a matter for the Panel’s judgment and has been defined as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a practitioner in the particular circumstances and the conduct complained of must be serious.
104. The HCPC submits that the behaviour outlined in the factual particulars does amount to misconduct in that it constitutes a serious falling short of what would be proper in the circumstances and what the public would expect of an HCPC registered OT.
105. In his evidence, R1 stated that he accepted that there would be some sanction, but he did not feel that his actions reached the level of misconduct. In his current role, he takes great care to ensure that any work he produces is referenced, and instils in others the need to do so.
106. The Panel finds that, on the proved facts R1 is in breach of the following HCPC Standards of conduct, performance and ethics:
9.1 You must make sure your conduct justifies the public’s trust and confidence in you and your profession.
9.2 You must be honest about your experience qualifications and skills.
107. The Registrant is also in breach of the following HCPC Standards of proficiency for Occupational Therapists (March 2013):
3.1 understand the need to maintain high standards of personal and
professional conduct;
9.1 be able to work, where appropriate, in partnership with service users, other professionals.
108. As regards the proved factual particulars, the Panel is satisfied that these particulars are sufficiently serious to amount to misconduct except with regard to particular 2a. The Panel found that although the email was sent on 7 April 2019, it was not proved that there was an intention to give a false impression, to secure an unfair advantage or act dishonestly, nor that it was misleading.
109. The Panel next considered whether R1’s fitness to practise is currently impaired. The HCPTS Practice Note on Finding that Fitness to practise is “Impaired” states there are two components: the personal component, which includes looking at the current competence, behaviour etc. of the individual registrant; the public component which includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.
110. The test of impairment is expressed in the present tense, that fitness to practise is impaired at the current date. The Panel has taken into account the lapse of time since these matters occurred but has also looked at R1’s past actions in order to assess his likely future conduct.
111. Whether a Registrant’s fitness to practise is impaired is a matter for the Panel’s judgment. There is no burden of proof on the HCPC or the Registrant at this stage.
112. The Panel considered the need to uphold the HCPC Standards of conduct, the Standards of proficiency and public confidence in the profession, in deciding whether a finding of impairment should be made.
113. In relation to current impairment, it is submitted by the HCPC that dishonesty is a character trait and difficult to remediate.
114. The Panel finds R1 has limited insight into his dishonest behaviour. He has maintained that what he did was not anything more than a series of honest mistakes and has sought to apportion blame to other people. For example he has stated that MM should have reverted to him and told him that he had sent the wrong document.
115. The Panel accepts R1’s evidence that he has learned from this experience, and in his current role he is now more careful. The Registrant is now in a much more senior role. He is responsible for auditing other practitioners’ work and managing a large team. He explained that he is not only careful with his own work, but he advises others on the importance of referencing accurately. Given his previous good character, the lapse of time and the fact there have been no further concerns raised, the Panel finds there is a low risk of repetition. R1 has expressed some remorse, but he has also sought to blame others. There is limited evidence of reflection as to the impact of this kind of misconduct on colleagues and the profession as a whole, and the importance of avoiding plagiarism and maintaining high levels of integrity. Therefore, the Panel finds that R1’s remediation is incomplete.
116. R1 has engaged with the HCPC process and is of previous good character. There was no actual harm to service users and no financial gain. The plagiarised SCCF was discovered before it was presented to a KCC panel and so this was an attempt only.
117. A ‘Version 6’ of the SCCF was prepared by R1 which shows he was likely to be capable of completing the necessary work himself and achieving the KR10 grade on merit. However, potential harm was caused in undermining the trust within the team in not following fair procedures for career development. There is a risk to service users if procedures are not followed to determine appropriate career progression based on the individual’s skills and competence. This can impact the safe and effective delivery of care. There has, to date, been a failure to accept and address the behaviour that the Panel has found to be misconduct. Further, the Registrant’s position demonstrates an ongoing lack of insight and remorse in relation to the misconduct, which has now been proved. Without sufficient insight and reflection, there will continue to be a risk of repetition. For this reason, R1’s fitness to practise is currently impaired under the personal component.
118. In considering the public component, as identified in the HCPTS Practice Note, there is a need to declare and uphold proper standards of conduct and behaviour, so as to maintain public confidence in the profession. R1’s behaviour fell far short of what is to be expected and it is necessary to maintain public confidence in the profession and the regulatory process, by finding that there is a current impairment of his fitness to practise. A member of the public in possession of the facts of this case would expect a finding of impairment to be made.
119. The misconduct is so serious that finding that the Registrant’s fitness to practise is not impaired, would undermine both public confidence in the profession and in the regulatory process.
120. The Panel finds that R1’s fitness to practise is also currently impaired under the public component. The dishonesty is so serious that a finding of impairment is required. R1’s actions were deliberate and intentional. Furthermore, even though the Panel was satisfied that the likelihood of R1 repeating his dishonest behaviour is low, dishonesty in a registered health care professional, is so serious that a finding of impairment is required so as to ensure that public confidence in the profession and in the regulatory process is not undermined.
Decision on Sanction
121. The Panel considered the submissions made by Ms Beckett and accepted the advice of the Legal Assessor.
122. Ms Beckett drew the Panel’s attention to the case of Bolton v the Law Society [1994] 1 WLR 512, in which Lord Bingham stated: “The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.” In addition, this principle was followed in the case of Nkomo v GMC [2019] EXHC 2625, which stated this principle is relevant to findings of dishonesty.
123. Ms Beckett submitted that the aggravating factors have an overall tendency to outweigh the mitigating factors; R1 has been found to be impaired in respect of both personal and public components, R1’s conduct has been dishonest, and this is extremely serious. The effect of dishonesty on public confidence in the profession and its regulation is an especially important issue, and in this case the Panel has found that there is a lack of insight by R1 into his dishonesty.
124. R1 has provided his written reflections in response to the Panel’s findings. He states:
“Following the hearing regarding my conduct over the last couple of weeks, and your subsequent findings, I wish to share a further reflection for your consideration, having had the opportunity to read your findings in relation to the matters raised regarding the findings of Fact, Grounds and Impairment and my own reflections since the evidence has been heard and given, including by myself.
Firstly, I note that I have not been explicit enough in the past or during this hearing that I accept full responsibility for my actions and inactions, it was never my intention to apportion blame to any other party, only to provide a context from my own perspective. This may have detracted from my acceptance of full responsibility from the outset of all processes I’ve been engaging with over the last four years.
I accept that my actions fell below the expected standards of the HCPC and that of a registered professional and am aware of the impact that this would have had on colleagues, employers, the HCPC and most importantly the perception of the public and service users accessing services I am involved with. I understand that this could have had a profound impact on the public perception and confidence of health and social care practitioners and services and their bodies of registration, and that a robust process is in place to ensure that public interests and wellbeing are being exercised, and that actions such as mine have, as far as can be, reasonably practicably been identified and addressed as required.
I appreciate that dishonesty has been identified as a character trait within the findings document as part of the hearing and findings, which has had a profound impact on myself reading this. I have always prided myself on my honesty and this has been a requirement in all roles, professionally and voluntarily that I have had. I have many character traits and dishonesty isn’t one of those, although I accept why this may be the perception of the Panel during these proceedings.
I am receptive to ongoing development and directed development to further remedy my actions historically. I believe I have achieved this with safeguarding the public by making my employers and managers aware, so that the scrutiny of my work has been higher and more robust since the concerns were raised about my actions. I’ve been honest with all my employers and agencies since concerns were raised, for the reasons of acknowledging my mistakes and ensuring that these did not reoccur in my practice.
I’ve continually engaged with all processes over the last four years so I can accept responsibility and acknowledgement that I have not only fallen short professionally, but also personally. I am passionate about helping people and always have been, no matter if that is professionally, voluntarily or privately. I accepted at the start of the hearing that I expected some kind of sanction, this was for me, an acknowledgement that I know I fell below the expected standards of an HCPC registrant because of my actions and the perception that the public would have held and acceptance that the public would expect a robust sanction to be applied in order to maintain the public confidence in the HCPC as a registrant body, and Occupational Therapy and Occupational Therapists as a profession and professional body.”
125. R1 added in his oral submissions to the Panel that he accepts full responsibility for his dishonesty and the impact of it on public confidence in the profession. He apologised if this was not conveyed in his written statement (set out above). He accepts his actions were dishonest and way below the standards the public would expect and that his fitness to practice is impaired on public and personal grounds, and he will accept any sanction the Panel considers should be imposed on him. He also stated that he is the primary earner in the household: he lives with his partner and 5 dependent children, and may lose his house and everything if he is unable to work. His employer is aware of these proceedings and R1 requires his HCPC registration to work in his current role. He may lose his job if he is not able to practise as an OT.
126. In accordance with the Legal Assessor’s advice the Panel has followed the HCPC Sanctions Policy, which states that Professionals registered with the HCPC must adhere to the Standards of conduct, performance and ethics, and the relevant Standards of proficiency. Sanctions should only be imposed in relation to the facts found proved, but should address all of those facts which have led to a finding of impairment. The sanctions available to the Panel and are set out in Article 29 of the Health Professions Order 2001. In writing any decision on sanction, the Panel must provide clear and detailed reasoning to support its decision, explaining the issues it has considered and the impact any aggravating or mitigating factors have had on the outcome.
127. Any sanction must be proportionate, is not intended to be punitive and should be no more than is necessary to meet the legitimate purposes of providing adequate protection to the public, to protect the reputation of the profession, maintain confidence in the regulatory system and declare and uphold proper professional standards. The Panel’s primary function at this stage is to protect the public, while deciding what, if any, sanction is proportionate, taking into account the wider public interest and the interests of R1. The Panel has started by considering the least restrictive sanction first, working upwards only where necessary. The final sanction should be a proportionate approach, and will therefore be the minimum action required to protect the public.
128. The Panel identified the following aggravating factors:
• The duration of the dishonesty, in that the SCCF document containing copied material was sent by R1 on multiple occasions, over the course of six months. There was no early admission of dishonesty.
• He actively created a plagiarised SCCF and attempted to cover things up, once discovered, by producing a ‘Version 6’ SCCF.
• If MM had not wanted to check FC’s SCCF, it is likely R1 would have wrongly achieved promotion to the KR10 grade and enhancement to his pay.
• The matter was so serious it was subject to a criminal investigation for fraud.
• His suspension during the investigation process is likely to have impacted on both team colleagues and Service Users due to the increased workload burden on an already very busy team.
• There is a risk to Service Users if procedures are not properly followed to determine appropriate career progression based on the individual’s skills and competence. This can impact the safe and effective delivery of care.
129. The Panel identified the following mitigating factors:
• R1 is of previous good character with no previous regulatory concerns and has given evidence, which the Panel has accepted, that there have been no concerns raised in relation to him in any of his employment roles since leaving KCC.
• The lapse of time, in that the misconduct occurred about 4 years ago.
• He has engaged with the HCPC throughout.
• There was no direct harm to any Service Users.
• The Panel finds that at work now, R1 is mindful to reference things in covering emails to his manager and instils the need in others to reference a clear distinction between their sources and their work.
• These proceedings have brought home to him the need to credit the written work of others, and also to be clear in his communications.
• His personal remorse at having been found out using someone else’s work is genuine.
• R1 did not benefit financially or in terms of career progression at KCC from his misconduct.
130. The Sanctions Policy states:
• The Standards of conduct, performance and ethics require registrants to be honest and trustworthy (Standard 9).
• Dishonesty undermines public confidence in the profession and can, in some cases, impact the public’s safety. Dishonesty, both in and outside the workplace, can have a significant impact on the trust placed in those who have been dishonest, and potentially on public safety. It is likely to lead to more serious sanctions.
• The following are illustrations of such dishonesty: …providing untruthful information in job applications (perhaps misleading the prospective employer about experience, training or skills gained);
• Given the seriousness of dishonesty, cases are likely to result in more serious sanctions. However, panels should bear in mind that there are different forms, and different degrees, of dishonesty, that need to be considered in an appropriately nuanced way. Factors that panels should take into account in this regard include: whether the relevant behaviour took the form of a single act, or occurred on multiple occasions, the duration of any dishonesty, whether the registrant took a passive or active role in it, any early admission of dishonesty on the registrant’s behalf and any other relevant mitigating factors.
131. Due to the serious nature of the misconduct in this case, taking no further action or mediation is not appropriate as public confidence would be undermined.
132. The Sanctions Policy states: A caution order is likely to be an appropriate sanction for cases in which: the issue is isolated, limited, or relatively minor in nature; there is a low risk of repetition; the registrant has shown good insight; and the registrant has undertaken appropriate remediation. A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate.
133. The following features suggestive of a Caution Order do not apply in R1’s case: the issue is isolated, limited, or relatively minor in nature … a suspension of practice order would be disproportionate.
134. A Caution Order would not be in accordance with the HCPC Sanctions Policy and there are no exceptional circumstances to justify a departure from it. A caution would be insufficient to mark the significance of the Panel’s findings. It would fail to deter other practitioners from behaving in this way. A caution would not uphold the wider public interest. R1’s misconduct was too serious for the Panel to impose a caution. In particular, he undermined the fundamental tenets of trust and integrity, and brought the profession into disrepute.
135. The Sanctions Policy states: There may be circumstances in which a panel considers it appropriate to impose a conditions of practice order in the above cases [including dishonesty]. However, it should only do so when it is satisfied that the registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated. The panel should take care to provide robust reasoning in these cases.
136. The Registrant has now developed his insight, but this was primarily in response to the Panel’s decision at the facts, grounds and impairment stage. The Registrant’s misconduct was not minor and the Panel was unable to formulate appropriate, workable and practicable conditions of practice. The relevant misconduct arose from a lack of honesty and integrity over a significant period, and conditions of practice could not be justified.
137. The Sanctions Policy states: 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.
138. In the judgement of the Panel a Suspension Order is appropriate and proportionate, in view of the seriousness of R1’s misconduct. The Panel accepts R1 now wishes to resolve the concerns raised despite his repeated dishonesty. He has demonstrated insight and reflection (albeit at a late stage and in response to the Panel’s decision on facts, grounds and impairment). He has engaged throughout these proceedings and there is now a low risk of repetition.
139. Accordingly, the Panel has decided to impose a 9 month Suspension Order. This Order will be reviewed before it expires. The period of 9 months suspension is consistent with the Panel’s findings at the facts, grounds and impairment stage and is the minimum period required in the circumstances to provide adequate protection to the public, to protect the reputation of the profession, maintain confidence in the regulatory system and declare and uphold proper professional standards.
140. This Order will be reviewed before it expires. Whilst it is not for this Panel in any way to seek to bind the discretion of any reviewing panel, it is suggested that such a panel might find it helpful for R1 to produce at least 14 days before the next hearing:
• Evidence that since this hearing concluded he has developed his insight and remediation.
• Evidence of further personal development and CPD, focusing particularly on the importance of the HCPC standards which were breached in this case.
• Character references, including from his current employer.
141. Having determined that a Suspension Order appeared to meet all the legitimate requirements of a sanction in this case and that it was proportionate in all the circumstances; the Panel then considered whether the case would more properly merit a Striking off Order under the Sanctions Policy.
142. A striking off would be unduly punitive despite R1’s dishonesty. The dishonesty in this case related to a plagiarised document and is capable of being remediated. The Registrant has fully engaged with the process, his failings can be remedied and R1 should have the opportunity to do so. The misconduct in this case was not sufficiently serious for a Striking off Order and the requirements of public protection and the wider public interest can be adequately served by a Suspension Order of 9 months. A Striking off Order would be disproportionate and too severe in the present circumstances.
143. All sanction options including Striking off will be available to the reviewing panel. The Panel today has concluded that a Suspension Order for 9 months is the appropriate and proportionate sanction in this case.
Order
ORDER: The Registrar is directed to suspend the register entry of Mr Glen J Winter-Nolan for a period of 9 months from the date this order comes into effect.
Notes
Interim Order
144. The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.
Reasons for the making of an Interim Order
145. Following the announcement of the sanction, the Presenting Officer applied for an Interim Suspension Order on the grounds that it was necessary for the protection of the public, and in the public interest in view of the findings made by the Panel at the substantive hearing including current impairment under the personal and public components. Furthermore, a member of the public would be dismayed to discover that an interim order was not in place in view of the findings made.
146. R1 submitted that an Interim Suspension Order would be punitive and detrimental to him. In addition, no concerns or issues were raised by the HCPC prior to the substantive hearing, and therefore, an interim order has not been in place over the past four years.
147. The Panel accepted the advice of the Legal Assessor to consider whether an interim order was necessary under Article 31, to protect the public or in the public interest or in R1’s own interest, because of the nature of the findings made in this case. The HCPC submitted that an interim order is necessary. The Panel is satisfied that an interim order is necessary on the grounds of public protection and the public interest in view of the findings made at the substantive hearing that R1 is currently impaired under the personal and public components. A conditions of practice order would not be appropriate for the reasons set out above, and the Panel has therefore concluded that it is necessary to direct that R1’s registration should be subject to suspension on an interim basis. This Order is required for the protection of the public and is in the public interest. The Panel concluded that the appropriate length of the Interim Order is 18 months, as an Interim Order would continue to be required pending the resolution of an appeal, in the event of R1 giving notice of an appeal within 28 days.
Hearing History
History of Hearings for Mr Glen J Winter-Nolan
| Date | Panel | Hearing type | Outcomes / Status |
|---|---|---|---|
| 06/11/2023 | Conduct and Competence Committee | Final Hearing | Suspended |